Mediation not the same as recognising Sulu heirs demands, says SLS

KOTA KINABALU: Any mediation between Malaysia and the so-called Sulu heirs over the RM64bil awarded by a Paris arbitration court does not mean the country is giving their claims any merit, says Sabah Law Society (SLS) president Roger Chin (pic).

He said SLS supported Malaysia's challenge over the decision as well as to hold “non-binding conciliation or mediation” dialogues with the claimants.

The French arbitral award can be enforced in 169 countries under the New York Arbitration Convention (NYC), he said.

“There is a big difference between the alleged merits of the (heirs) claim and the dangers of an NYC award.

“The pro-enforcement policy under the NYC prevents the review of the merits of an award because it undermines the finality and enforceability of the award,” Chin said.

He said that it had nothing to do with the merits of the Sulu heirs' case as Malaysia and SLS believe that there is absolutely no merit to the case.

“However, even if the award is eventually set aside by the French courts, the danger of recurring future disputes will not go away.

“Malaysia had also observed the payments under the 1878 deed between the then-Sulu Sultan and Baron de Overbeck/North Borneo Company but stopped making the payments in 2013,” he said.

Malaysia discontinued the payments in 2013 after the Lahad Datu intrusion by Sulu intruders.

He said the refusal to pay triggered off the current claim by the claimants, resulting in the Paris arbitration court decision.

“In any court litigation, lawyers always consider the option of having non-binding talks in tandem with the litigation,” Chin said.

However, he said the “stakes were a lot higher" the RM64bil was not awarded by a Malaysian court litigation but was an international arbitration and subject to the rules of the NYC.

“There may be no basis to the claims but now there is an existing arbitral award, the focus must be on how to deal with the award and find a permanent legal solution to end the dispute,” he said.

SLS had suggested Malaysia carry out non-binding negotiation with the claimants in a webinar on April 5.

Singapore-based Queen’s Counsel and international arbitrator Dr Colin Ong had suggested that Malaysia should try to set aside the award and challenge the case in the highest French court if required.

However, Ong also said the current award, if not set aside, could be enforced in any of the 169 state parties of the NYC.