Govt urged to hold mediation talks with Sulu sultan’s heirs
KOTA KINABALU: The Sabah Law Society (SLS) urges the Malaysian government to seriously consider holding non-binding without prejudice conciliation or mediation dialogues with the descendants of the Sultan of Sulu over a French arbitration court’s instruction to pay them RM62.59 billion (US$14.92 billion).
SLS president Roger Chin said conciliation and mediation are non-binding processes for dispute resolution that relies on a conciliator or mediator mutually agreed upon to assist parties to attempt to reach a mutually acceptable decision or to reduce their existing differences.
Unlike binding arbitration, he said non-binding mediation is not designed to determine an “award.” Parties can formulate their own goals and try to edge closer together since they are not bound by the outcome of the proceedings.
“Since it is a voluntary process and parties are not compelled to abide by a third-party’s judgment, participants exert significant control over the outcome of their dispute and are generally motivated to amicably settle the issues,” he said following Dr Colin Ong QC’s talk in the joint SLS and Kuala Lumpur Bar Committee Philippines/Sulu Claim to Sabah webinar held on April 4.
Dr Colin, Queen’s Counsel in London and a chartered arbitrator in Brunei, had suggested there is no harm pursuing binding legal action such as arbitration or litigation while at the same time also pursuing separate without prejudice discussions facilitated by a neutral national who tries to bring the parties closer to settling their disputes.
He said that even if Malaysia managed to set aside the French award, this does not provide a permanent legal solution to the dispute between the parties over how to deal with the payment disputes over the 1878 Agreement.
In summary, it the parties fail to reach a mutually agreed upon solution, then both participants can abandon the without prejudice talks and go back to arbitration or litigation.
As suggested by Dr Colin, Chin said one such possible mutually acceptable decision could be a few cents in the dollar approach where any award given could be mutually settled at a greatly much lesser amount than what was awarded.
“Such a non-binding conciliation approach should be held in tandem with any legal actions by the Malaysian government to resist/set-aside the French arbitral award and in so doing, this will not be prejudicial in any way at all to the Malaysian government’s efforts to protect her interests,” he said in a statement on Monday.
In February, a French arbitration court recorded arbitrator Gonzalo Stampa’s decision that Malaysia must pay at least RM62.59 billion (US$14.92 billion) to the descendants of the last Sulu sultan for violating the 1878 agreements.
The arbitrator, Gonzalo Stampa, ruled that Malaysia had violated the 1878 agreements between the old Sulu kingdom in the Philippines and a representative of the British North Borneo Company that used to administer what is now Sabah.
Malaysia has already filed an application to an arbitration court in France to set aside the RM62.59 billion award to the heirs.