Originally from Investment Treaty Arbitration and International Law Volume 17

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I. INTRODUCTION

          On 6 June 2023, the Paris Court of Appeal overturned the enforcement of a jurisdictional award favoring the heirs of the last sultan of Sulu in a dispute against Malaysia, Kiram et al v. Malaysia. It ruled that the sole arbitrator Gonzalo Stampa wrongly concluded that he had jurisdiction to hear the heirs’ claims. It reasoned that the so-called arbitration clause in the 1878 agreement underlying the dispute was unenforceable because the designated forum, the British General Consul of Borneo, no longer existed.

          This paper argues that the Paris Court of Appeal correctly decided that the sole arbitrator lacked jurisdiction to hear the heirs’ claims. It proceeds in two parts: First, it explains why the Paris Court of Appeal’s decision was well-founded. Second, it argues that, even if one disagrees with the decision’s rationale, there are alternative rationales justifying the Paris Court of Appeal’s conclusion that the sole arbitrator lacked jurisdiction.

               This paper focuses on the issue of the arbitrator’s jurisdiction. It does not concern the issues of French civil procedure (namely, the admissibility of Malaysia’s claims and estoppel) that were addressed in the Paris Court of Appeal’s decision. It draws mainly on publicly available court decisions and arbitral awards relating to the dispute between the heirs and Malaysia, as well as historical literature. The parties’ submissions before the Paris Court of Appeal and the sole arbitrator—notably, the extensive historical record—are not publicly available. The lack of access to the factual record is a major limitation.