KUALA LUMPUR: The courts of Spain, France and Luxembourg should have not entertained claims made by the so-called Sulu sultanate heirs because there is no arbitration clause in the 1878 agreement which Malaysia took over in 1963, says former attorney general Tan Sri Tommy Thomas.
He also said it was disappointing that the courts appeared to have not read the 1878 agreement signed by then Sulu Sultan Jamal Al Alam.
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"There isn't an agreement of arbitration in the 1878 deed. So, in the absence of the arbitration agreement, the arbitration process should have not started in Spain.
"Of course the matter was eventually sorted out in Spain, but unfortunately France wasn't told.
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"It's only a short document, one would immediately conclude that there is no agreement to arbitrate and that should be the end of the matter," he told reporters at the Concorde Hotel on Monday (Aug 1).
"It's disappointing that these courts did not do what I called an elementary checklist," added Thomas, referring to the French and Luxembourg courts that ordered the seizure of two Petronas subsidiaries last month.
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Thomas was speaking as a guest to reporters during a press conference after the monthly Concorde Club meeting, which is an informal group of media editors and senior journalists.
The club meets monthly with politicians and key policy makers.
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In June last year, the Madrid High Court annulled Dr Gonzalo Stampa's appointment as an arbitrator and decided that all arbitration proceedings and any decision by him as invalid and could not be legally enforced.
However, last September, the French Arbitration court, without knowing the decision of the Madrid Court to cancel Stampa's appointment as an arbitrator, went ahead with the Sulu descendants' case against Malaysia.
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On Feb 28 this year, Stampa made an award of US$14.92bil (RM62.69bil) to the claimants of the Sulu sultanate.
Last month, it was reported that bailiffs in Luxembourg had seized Luxembourg-registered subsidiaries Petronas Azerbaijian (Shah Deniz) and Petronas South Caucasus on behalf of the Sulu claimants.
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Commenting on the matter, Thomas said he was confident that Petronas would have had a strong legal team to fight the case in Luxembourg.
"Petronas would've pointed out to the Luxembourg court that its assets are not of the Malaysian government – but (they are) separate entities," added Thomas.
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He also said it was time for Malaysia to go on the offensive and file complaints against Stampa and the UK-based lawyer Paul Cohen who represented the so-called Sulu heirs to prevent a case of continuous "international forum shopping".
Forum shopping refers to choosing courts based on which is most likely to land a favourable outcome to clients.
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"Appoint a top-class barrister from London to advise whether Malaysia should go on the offensive, a contempt order, or 'in personam' orders which have personal sanctions on Cohen.
"If the courts in England are satisfied, they can order Cohen not to file any more proceedings in other countries and if he does that, he will be liable for contempt against the courts of England," said Thomas.
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Thomas said the subsequent step by Malaysia was to file complaints against Cohen at the disciplinary board for barristers so they can take disciplinary action against the American lawyer who is based in the United Kingdom.
"Because he (Cohen) is bringing the Bar into disrepute. Both of these can be done in England," said Thomas, adding that similar action could be taken by Malaysia against Stampa for proceeding with arbitration in France despite having his appointment as arbitrator revoked by Spain.
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Meanwhile, Thomas maintained that Malaysia should have continued paying the RM5,300 cession money to Sulu heirs since the Lahad Datu invasion in 2013.
"In my opinion, Malaysia has always had a legal obligation since 1963 to pay. So, we should've paid," added Thomas.
The RM5,300 cession money was part of agreements under the 1878 agreement signed by then Sulu Sultan Jamal Al Alam, Baron de Overbeck and the then Maharaja of Sabah and the British North Borneo Company's Alfred Dent.
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Malaysia took over the payments when it became the successor of the agreement following Sabah's independence and the formation of Malaysia in 1963.
The Lahad Datu invasion in Sabah, a stand-off that lasted for more than a month, saw the deaths of six civilians, 10 Malaysian security forces personnel and about 56 Sulu intruders in 2013.
