Azalina Calls For State Immunity Act To Protect Malaysia From Foreign Claims

Pic: Utusan

Malaysia should consider enacting a state immunity act to protect the country from any possible foreign claims, said Minister in the Prime Minister’s Department (Law and Institutional Reforms) Datuk Seri Azalina Othman Said.

Highlighting the Sulu case, she said it presented a complex dispute which involved a myriad of fundamental issues that directly affect the arbitration community and stakeholders in the international community, as well as sovereign states.

“I am of the view…with this incident and maybe in future with more claims, (we should) look into…a new Act which is called the state immunity act.

“…consider this as part of the strategy that we have to prepare ourselves and our country in reference to certain claims,” she said in her keynote address at the International Arbitration Colloquium 2023, today.

Azalina also emphasised that neither the 1878 Agreement nor the 1903 Confirmation of Cession stipulated any arbitration agreement between the original parties as well as between the Sulu group and Malaysia.

She said with the absence of an arbitration agreement being the pre-requisite and foundation of any arbitration proceedings, the commencement of the purported arbitration proceeding by the Sulu claimants was without basis.

“The 1878 treaty had no arbitration clause. Commercial arbitration must have a clause. It means that it must be written in the agreement, if there is a dispute it must be discussed.

“Can you go for arbitration when there is no arbitration clause? If there is no such clause, why is it then we are being dragged to such a case?” she added.

Therefore, she said that the purported arbitration proceeding commenced by the eight self-proclaimed descendants of the Sulu heirs perfectly illustrated a grave violation and abuse of the globally respected arbitration mechanism and processes.

The subsequent issuance of the Final Award dated Feb 28, 2022, by Dr Gonzalo Stampa within the purported arbitration proceeding commenced by the Sulu claimants was invalid and unenforceable, she said.

Meanwhile, according to the Legal Affairs Division of the Prime Minister’s Department, the international Colloquium 2023 is one of the government’s many proactive efforts to ensure a thorough understanding of the legal procedures and facts surrounding the Sulu claims against the people and government of Malaysia.

“The government will continue to engage all relevant stakeholders in Malaysia to ensure no stone is unturned in approaching this matter and in defending the sovereignty of Malaysia,” it said in a statement today.

Jointly organised by the division, the Asian International Arbitration Centre (AIAC), and Universiti Malaya (UM), the colloquium brought together local and foreign senior legal practitioners, legal experts, chartered arbitrators, and academics to discuss related matters on this issue in three main sessions namely A Tale Through Time: Navigating the Historical Antecedents of the purported Sulu Arbitration, The Effects of New York Convention and Sovereign Immunity and Abuse of Arbitral Processes.

Apart from Azalina, UM’s Faculty of Law dean and International Commercial Law lecturer Professor Dr Jason Chuah delivered the plenary lecture titled ‘Reviewing the Legal and Procedural Issues in the Sulu case’.

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