KUALA LUMPUR: MALAYSIA needs to look for a final solution to the so-called "final award" given to the alleged heirs of the defunct Sulu sultanate by a Spanish arbitrator to conclusively resolve the matter.
Constitutional expert Associate Professor Datuk Dr Wan Ahmad Fauzi Wan Husain said while this might not be far off, the wins this past week in the French courts only covered the statutory charge over the buildings of the Malaysian embassy in Paris.
"So, the main challenge then would be the 'final award', the voiding of which we have yet to receive any decision. We need to find a way to get this decision set aside," he said.
"On merit, there are many things we can put forth to challenge their claims."
Wan Fauzi was commenting on Minister in the Prime Minister's Department (Law and Institutional Reforms) Datuk Seri Azalina Othman Said's statement on Thursday that a French court had annulled the order of rising of statue to be mortgaged against a Malaysian diplomatic building in Paris.
The self-proclaimed heirs of the Sulu sultanate had obtained the order in an attempt to seize the building following the "final award" of nearly US$15 billion to them by their appointed arbitrator, Spaniard Dr Gonzalo Stampa.
Bernama reported Azalina as saying in London that the outcome of the decisions on Monday and Thursday had ended the Sulu claimants' efforts to seize Malaysia-linked assets throughout the world.
Azalina is in London to meet lawyers appointed by the Malaysian government to challenge the third phase of the territorial claims by the eight claimants.
"The government will continue to take all necessary actions to ensure that Malaysia's interests, sovereign immunity and sovereignty are protected at all times," she said.
Azalina, in the statement, said Malaysia's victory on June 6 this year in the appeal against the exequatur of the so-called partial award on jurisdiction had led to the withdrawal of the measures registered by claimants on the diplomatic buildings owned by Malaysia in Paris.
She said Malaysia had notably challenged these measures on the ground of its immunity, in particular the immunity of its diplomatic premises as recognised under the Vienna Convention on Diplomatic Relations of 1961.
"On (Monday), the Paris enforcement judge quashed its prior ex-parte order authorising that a statutory mortgage be registered on three diplomatic buildings owned by Malaysia in Paris.
"The judge considered that it did not have the power to authorise such a measure and ordered the claimants to pay €15,000 to Malaysia as cost."
Azalina said the claimants had confirmed that they will now remove the statutory mortgage and this adverse cost order comes in addition to the €100,000 adverse cost order issued by the Paris Court of Appeal in its June 6 decision in favour of Malaysia, which had refused the recognition of the so-called partial award dated May 25, 2020, in France.
She said Malaysia was taking the necessary steps to ensure that these adverse cost orders were also paid as soon as possible by the claimants or their litigation funder, Therium.
On Thursday, she said as a further result of the June 6 decision, the Paris enforcement judge recorded the claimants' withdrawal from the proceedings that they had initiated to seize the diplomatic buildings.
"Up to today, neither the so-called partial award nor the so-called final award can be enforced in France. The recognition and enforcement of the former have been refused by the Paris Court of Appeal in its June 6 decision and the enforcement of the latter has been stayed by the Paris Court of Appeal pending the outcome of the annulment proceedings."
In light of these developments, she said, the government was confident that the ultimate annulment of the purported final award by the Paris Court of Appeal was only a matter of time.
Malaysia had used all legal remedies to annul the award given by Stampa to the claimants in courts in Spain, France, Luxembourg and the Netherlands.
Malaysia scored another win when The Hague Court of Appeal on June 27 dismissed the Sulu group's application to recognise and enforce the final award in the country.
In its efforts to enforce the final award, the Sulu group had reportedly attempted to seize the assets of Malaysian petroleum company Petronas in Luxembourg and the Netherlands, as well as targeted Malaysian diplomatic assets in France (including the embassy).
Meanwhile, Azalina said Stampa will face criminal charges in a Madrid court on Dec 11 after the court carried out its own investigations.
If found guilty, she said, he faces a jail sentence and a fine, adding that Malaysia would be represented during proceedings as we are the complainant.
"The date for the hearing was set following persistent and aggressive demands by the government of Malaysia. This is not a civil case but Stampa is facing criminal charges.
"This is the main factor that offers consistency in Malaysia's claim that the award by Stampa as the international arbitrator is an illegal act that is baseless."
Azalina said Stampa's award to the Sulu claimants was seen as a "fraudulent award" because the High Court of Justice of Madrid, which had appointed him as the arbitrator in June 2021, later annulled Stampa's judicial appointment.
"Despite the decision, Stampa continued to hear the arbitration case although he lacked the authority to act as an arbitrator and should have immediately put an end to the purported arbitration proceedings."
Stampa then moved his "seat of arbitration" to Paris in February 2022 where he made the award against Malaysia.