KUALA LUMPUR, July 27 — Malaysia should take steps to file complaints against Spanish arbitrator Gonzalo Stampa who had ordered the country to pay US$14.9 billion as compensation to eight individuals claiming to be the heirs of the Sulu sultan, and should also lodge a complaint against the Sulu claimants' UK-based lawyer Paul Cohen, Tan Sri Tommy Thomas said today.
Thomas, who was formerly an attorney-general of Malaysia, also said Malaysia should seek to stop a private company from funding the Sulu claimants' multi-million dollar efforts to pursue the enforcement of the US$14.9 billion arbitration award.
Without mincing his words, Thomas labelled both the arbitrator Stampa and the Sulu claimants' lawyer Cohen as "enemies of Malaysia in the war of litigation they have unleashed against Malaysia" and said the country must stand united to repel such attacks.
Thomas said the duo's conduct was "wholly unacceptable" and bordering on "unlawfulness", adding that such conduct cannot be allowed to continue without Malaysia taking steps against them personally in their home jurisdictions.
Saying that the eight Sulu claimants themselves would not have the legal expertise to engage in the litigation war against Malaysia, Thomas described Stampa and Cohen as allegedly being the "legal masterminds who have personal and direct responsibility in attacking Malaysia".
"Thus in the case of Cohen, Malaysia should lodge a complaint against him with the disciplinary body for barristers in England where he practises, namely, the Bar Standards Board in England. The highest standards of integrity and professionalism are expected of the senior legal profession in England, the Bar; Cohen has certainly run foul of them.
"In the case of Stampa, Malaysia should lodge a complaint against him with the regulatory authority over arbitrators in Spain. If there is none, we should seek legal advice from leading lawyers practising in Spain on our recourse under Spanish law against this rogue arbitrator," Thomas said in a statement published today on local financial daily The Edge's website.
Thomas said Malaysia should also seek court orders in the courts of Spain and France to stop both Stampa and Cohen from acting directly or indirectly on the Sulu claimants' purported arbitrations against Malaysia in any part of the world. He described these court orders to be sought as "in personam" injunction orders or orders which can be enforced specifically against a person.
Thomas said he believes such an order has already been made in Spain against Stampa, and that there must be a similar order secured in France against Stampa's relocating of his allegedly "unlawful" arbitration from Spain to France --- after the Spanish courts nullified its decision to appoint an arbitrator for the Sulu claimants.
Thomas said the company Therium had apparently already incurred costs of over US$10 million in funding the Sulu claimants' arbitration bid against Malaysia, including alleged costs of US$2.79 million to Cohen and US$2.33 million to Stampa.
"Malaysia must investigate how the insurance funder, Therium, agreed to fund such a hopeless case in law, insofar as the quantum of compensation lawfully payable to the Sulu Claimants, is concerned.
"We must seek advice from the best barristers in London (on the assumption Therium carries on business in the United Kingdom) whether Malaysia can seek an injunction against Therium restraining it from further funding. Once the money flow ceases, amazingly the rogue arbitration activities will cease," he said.
Aside from pursuing these "new strategies", he said Malaysia should at the same time continue to pursue the criminal proceedings it had commenced against Stampa. In early March, Malaysia confirmed that Spain's public prosecutor had initiated a criminal complaint against Stampa for alleged serious contempt of court and professional intrusiveness, and that the courts in Madrid had started a criminal investigation on Stampa's allegedly illegal actions.
"We must recognise that this is legal imperialism by certain European powers and personalities; we must therefore defend our national sovereignty and territorial integrity with all our strength.
"Attack is the best form of defence; and Malaysia must go on the offensive against Stampa, Cohen and Therium. Merely applying to set aside the unlawful arbitration award of Stampa is insufficient. Other punitive measures must be undertaken urgently by Malaysia," he said.
While the High Court in Madrid's June 2021 nullifying of its earlier decision to appoint an arbitrator would mean Stampa is not an arbitrator for the Sulu claimants' arbitration, he moved the venue of the arbitration to Paris, France and on February 28, 2022 proceeded to make the arbitration award of US$14.9 billion against Malaysia.
Thomas said the arbitration award was "completely illegitimate" and that it was void and unenforceable, also noting: "Stampa’s relocation of the seat of arbitration to France because the courts of Spain had ordered him to cease the arbitration makes it a fraudulent and dishonest award."
Thomas also criticised the arbitration proceedings which Cohen and Stampa were involved in in Spain and France as being allegedly not only "legal misconduct of the worst kind", but also as being allegedly "part and parcel of the international arbitration circuit gone mad".
"It brings into disrepute a system which is Mafia-like, controlled by European lawyers abusing the legal systems of their countries, and the arbitration world to the detriment of Third World countries, like Malaysia," he said.
Noting that arbitration is a highly specialised and technical area of legal practice, Thomas said the persons acting for Malaysia should be legally trained in various jurisdictions to combat the multi-national strategies and tactics adopted by Cohen and Stampa.
He also said Malaysia should leave the fight to Attorney-General Tan Sri Idrus Harun, instead of setting up special task forces or other committees.
"Because this is pre-eminently a legal dispute, the Attorney General, as the chief legal adviser for the nation, should be left to defend Malaysia’s interests. It is currently in safe hands.
"There is no need for a special task force or any other committee to be set up. Further, the dispute has reached an advanced stage in July 2022, as I write this. A committee is a bureaucratic excuse for indecision.
"Please let the Attorney General decide whether he needs to consult anybody; do not impose unqualified persons, ostensibly to help, but in reality to cloud decision-making," he said.
On July 15, Malaysia's de facto law minister Datuk Seri Wan Junaidi Tuanku Jaafar said the Cabinet had on July 14 decided to set up a special task force to study and formulate an appropriate action plan based on the law to tackle the claims by the alleged Sulu heirs against Malaysia.
The task force to be chaired by Wan Junaidi will include Idrus, Foreign Minister Datuk Seri Saifuddin Abdullah, experts in international arbitration, and with both the Legal Affairs Division (BHEUU) and the Attorney-General's Chambers to set the terms of reference and the BHEUU and the Foreign Ministry to act as the secretariat.