The French legal system is about to experience an upheaval. For fourteen years, its arbitration laws have been frozen, gradually fossilizing while countries like Germany and the United Kingdom have taken advance with daring reforms. Having entrusted a new commission with the task of developing recommendations, France should publish its own reform decree in the coming months.

This modernization cannot be long. For too long, whole countries have suffered under an obsolete legal system, completely unable to manage disputes which sometimes go back even further in the past.

Take the example of Malaysia. Since 2018, the country has been entangled in an unusual legal battle with the heirs of the Philippin Sultan of Sulu.

The case began when a pair of British lawyers advised the Sulu heirs to claim compensation for the control of the Sabah region by Malaysia. They brought their request to Spanish courts, demanding the opening of an arbitration procedure.

Their argument was based on an agreement dating from the colonial era, signed in 1878, long before the very existence of the state of Malaysia. At that time, the Sultan of Sulu had rented the Sabah region to a group of British settlers in exchange for financial payment.

Although this old ruined document has since been considered a simple artifact of the British colonial strategy, its legitimacy was weakened by the fact that the Sultanate of Sulu has never really “possessed” these lands in the first place. However, it included a specific arbitration clause in the event of disagreement.

Unfortunately for the lawyers of the Sulu, the arbitration clause stipulated that disputes should be settled by the British consul general in Brunei – a position which has not existed since 1984.

However, the Spanish courts have briefly appointed an arbiter. After noticing a serious procedural error, they quickly revoked his appointment and ordered the referee to abandon the case.

But instead of complying with these instructions, the arbitrator simply moved the file to a court in Paris, where he made a decision ordering Malaysia to pay $ 15 billion in compensation to the Sulu complainants. Finally, justice caught up with the arbitrator, who was sentenced to his manifest refusal to obey the orders of the court – but his judgment has been hanging over Malaysia since then.

Malaysia courageously waged its fight for its acquittal in court throughout Europe, obtaining favorable decisions in Spain, France and the Netherlands. But, supported by a third -party investment fund wishing to benefit from the pending compensation, the lawyers of the Sulu retaliated with so much relentlessness.

With each defeat, their legal strategy has become more and more desperate, leading to the filing of a speculative complaint of $ 18 billion against Spain, accusing him of having denied justice – simply for having followed the regular procedure, revoked the appointment of their arbitrator and having condemned him after his refusal to obey.

For Malaysia, salvation could reside in this strange arbitration clause. While the Sulu lawyers have repeatedly argued that the British consul general could easily be replaced by another equally valid arbitrator, the French courts were not of this opinion.

Last November, the Court of Cassation confirmed a previous decision of the Court of Appeal, which had examined the historical evidence available and concluded that the relationship of trust between the signatories of the 1878 treaty and the British consul of the time was the only reason why the two parties had accepted an arbitration clause. They therefore deduced from it that none other arbitrator could fulfill the same role, thus making the clause invalid and, above all, preventing any dispute arising from the treaty from being legally decided by a contemporary arbitration procedure.

Even the appointment of the British consul reveals the true nature of the 1878 agreement, used as an instrument of colonial manipulation, unworthy of being recognized in our modern world. The idea that such scandalous claims, attacking the sovereignty of a now fully independent state, can be implemented via arbitration procedures from former colonial powers is fundamentally incompatible with current legal standards.

The French decision undoubtedly brought Malaysia closer to justice. But she should never have been forced to spend seven long years and to bear exorbitant financial expenses to defend herself against a complaint now recognized as completely unfounded. And the case is still not closed – as long as compensation of $ 15 billion has not been completely and definitively canceled, the lawyers of the Sulu and their rich supporters will undoubtedly try to recover their losses.

While France is committed to the reform of its arbitration, the conflict between Malaysia and the Sulu must serve as a warning, stressing the need to reject or immediately cancel the invalid disputes. It should not be necessary to examine at length an absurd historical claim which dates back to an era prior to that of the complainant states to disqualify it from the start.