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KUALA LUMPUR – Malaysia should go on the offensive in the United Kingdom to apply for contempt of court or in personam orders against lawyer Paul Cohen to stop him from “court-shopping” on behalf of the Sulu claimants, Tan Sri Tommy Thomas said.
If Cohen is liable for contempt of court, the former attorney-general said, Malaysia should also lodge disciplinary complaints against the UK-based lawyer as he is “bringing the bar into disrepute”.
“This is to prevent the continuous ‘court-shopping’ that they started in Spain, and continued in France and Luxembourg, as well as other favourable countries,” Thomas said today at a Concorde Club talk organised for media editors and senior journalists in Kuala Lumpur.
Cohen is the co-lead counsel representing the Sulu heirs.
“So what I’d suggest, as in my note the other day, is for Malaysia to appoint top-class barristers in London to advise them on whether Malaysia can go on the offensive with a contempt order or some other orders that have sanctions on Cohen personally.
“If the Court of England is satisfied with Malaysia’s argument, then the court can order Cohen – Cohen is subject to the Court of England – to not file any more proceedings in any other countries.
“And if he does, he will be liable for contempt of court. So these are the practical measures Malaysia can put into place as quickly as possible,” Thomas said.
He added that Malaysia can take similar actions against arbitrator Gonzalo Stampa who had disregarded the Spanish court’s decision to revoke his appointment.
“Malaysia can get advice from top barristers from Madrid on disciplinary proceedings we can take against Stampa.”
Thomas reiterated his view that Malaysia has always had a legal obligation since 1963 of paying the annual RM5,300 cession fee to the Sulu heirs.
“We should have paid,” he said, referring to the decision under then prime minister Datuk Seri Najib Razak for Malaysia to stop the payment from 2013 to 2019.
Meanwhile, he said the courts in Spain, France, and Luxembourg should have set aside the applications as there is no arbitration clause in the 1878 agreement.
The 1878 agreement was signed by then Sulu sultan Jamal Al Alam, then maharaja of Sabah Baron de Overbeck, and British North Borneo Company’s Alfred Dent.
“There must be an agreement to arbitrate which there isn’t in the 1878 deal. So (without) an arbitration agreement, the arbitration process should not have started in Spain,” said Thomas.
“I would say that it is a bit disappointing that these courts are not reading the 1878 agreement, which is the only basis on their claim. And if one reads it, and I think it is a two- or three-page document, one would immediately reach the conclusion that there is no agreement to arbitrate.
“It is quite disappointing that these courts did not do what I would call an elementary checklist. In my view, the courts should have dismissed the ex parte applications at the onset.”
On February 28, Stampa awarded US$14.92 billion (RM66.4 billion) to the Sulu claimants, while in June the bailiffs in Luxembourg had seized Petronas subsidiaries in the European country as part of the award.
Thomas said that Petronas would know “how to look after its own assets” as it has a “powerful legal team” to point out that Petronas’ assets are not assets of the government of Malaysia. – The Vibes, August 1, 2022
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