Malaysia turns to veteran maritime litigator to claim Equanimity

This article first appeared in The Edge Malaysia Weekly, on August 13, 2018 - August 19, 2018.

Sitpah, representing 1MDB, speaking to the media after the arrival of Equanimity at the Boustead Cruise Centre in Port Klang

-A +A

THE return of disputed Equanimity to Malaysian shores last week sparked another controversy after Attorney General Tommy Thomas chose a former colleague to lead the government’s claim over the luxury yacht.

Critics immediately questioned whether there was a conflict of interest in the appointment. The lawyer in question, 

Sitpah Selvaratnam, is a co-founder of Tommy Thomas Advocates and Solicitors, the AG’s private practice which he left to take up public office.

The AG later clarified that Selvaratnam will do the work without cost to taxpayers.

To be fair, the questions raised on a possible conflict of interest may have some merit. Even if Selvaratnam is not being paid for her work, a central role in such a high-profile and precedent-setting case would further enhance her reputation and career prospects.

That said, a close examination of Selvaratnam’s 26 years as an admiralty law specialist and commercial litigator backs up the AG’s assertion that she is indispensable in Malaysia’s claim of ownership on the vessel. She has been involved in over 100 vessel arrest cases on both sides of the action. She has a Master of Laws from Cambridge University and is president of the International Malaysian Society of Maritime Law. She also chaired the Maritime Law Committee of the Inter-Pacific Bar Association between 2015 and 2017.

Internationally, Selvaratnam is a highly regarded authority on shipping laws. She was appointed a court member for Malaysia to the ICC International Court of Arbitration in June for a three-year term. That follows a string of appointments to various arbitration panels in Singapore, Hong Kong and London.

Her appointment is a clear signal that the government is digging in for a tough fight over Equanimity. By any measure, it would be a historically unique dispute.

The AG chose Selvaratnam and two other leading shipping lawyers — are Jeremy Joseph and Ong Chee Kwan — after consultation with the Malaysian Bar as the Attorney General’s Chamber does not have shipping specialists.

In a statement last week defending the selection of Selvaratnam, the AG said that the trio are the top admiralty and maritime law experts from the Malaysian Bar. The three will work alongside Senior Federal Counsel Alice Loke and the solicitors on record are Joseph’s firm, Joseph & Partners.

In explaining his decision, the AG stressed on the complexity and intricacy of the multi-layered transactions involved in the money trail from 1Malaysia Development Bhd (1MDB) to the purchase of Equanimity.

Therefore, drafting the legal papers, appearing as counsel before an admiralty judge and even serving the arrest warrant require a high level of skill, expertise and actual experience in such cases, he added.

“It must be kept in mind that these legal proceedings are brought for the benefit of Malaysia. Accordingly, we are entitled to Malaysia’s best shipping lawyers,” Thomas argued.

While Selvaratnam is working on a pro bono basis, the other lawyers will be paid commercial rates, the AG said.

In a statement last week, Thomas disclosed that both Joseph and Selvaratnam were approached by foreign parties to act on their behalf in this dispute. Both declined.

The superyacht was allegedly bought by fugitive financier Low Taek Jho (or Jho Low) with US$262.4 million siphoned out of government-owned 1MDB between January and June 2014.

It was first seized by Indonesian authorities in April this year, but that seizure was later declared invalid by a local court. Indonesian police seized the yacht again in July.

Jho Low, via his legal team, has called the Malaysian seizure of the 91.5m luxury vessel “illegal” and politically motivated. “It is a violation of an Indonesian law and court decision by a politically-motivated Malaysian government bent on advancing its own political agenda with little regard to existing court rulings or basic legal rights,” his statement read.

In response, Prime Minister Tun Dr Mahathir Mohamad said that whoever claims to own the vessel should prove that they bought it above board. “We want to know where they got so much money to buy such an expensive boat. If they can prove that it was not purchased with stolen money, they deserve to get it back,” Mahathir reportedly said.

Low is a central figure in the 1MDB scandal, where he is accused of being the mastermind behind a complex web of opaque transactions designed to steal money borrowed by 1MDB for purported developmental purposes.

As far as Equanimity is concerned, the Malaysian government’s intention is clear: it wants to sell off the super yacht to recover as much 1MDB money as it can.

To sell it off, however, the government must first press its claim of ownership via 1MDB. The 1MDB legal team has said the process may take up to nine months, particularly if its claim is disputed by other parties.

The clock is ticking. It costs RM3 million in Malaysian taxpayers’ money to maintain the yacht each month. And it is unthinkable that Low will give up the vessel without a fight.

The US Department of Justice (DoJ) said in a March 2018 court filing that Low actively tried to keep the yacht away from any government seizure. Among others, Low was alleged to have turned off the vessel’s Automatic Identification System and told crew members to avoid some jurisdictions such as Australia and Singapore to prevent detection.

Even as the Malaysian government issued a warrant to formally seize the yacht on Aug 6, Low’s legal team filed a notice in a district court in California, seeking an order that the US government reveal what it knows about the transfer of Equanimity to Malaysia.

In the same filing, Low’s legal team also opposed the DoJ’s request to suspend existing proceedings given the yacht’s handover to Malaysian authorities by the Indonesian government.

A suspension will allow the US government time to formally ask Malaysian what it intends to do with the yacht, the DoJ’s filing last week said.

Legal sources say it was logical for the DoJ to ask for the suspension as the claim of ownership would otherwise be the subject of action in two jurisdictions — Malaysia and the US.

In other words, the DoJ is essentially making way for Malaysian authorities without withdrawing its own action completely, the sources say, adding that the DoJ would likely resume its action after Malaysia succeeds.

Thomas had stated that the handover of Equanimity from Indonesia to Malaysia was done under a mutual legal assistance arrangement involving both countries as well as the US.

Note that the DoJ had been attempting to take Equanimity into its custody amid its own investigation into US$4.5 billion laundered from 1MDB in the US. In its previous filing to the California district court, the DoJ stated that it intends to sell the yacht.

Multi-jurisdictional cooperation aside, the resulting litigation battle for ownership of the vessel may be exceedingly complex. Low’s legal team had also filed a lawsuit in Indonesia to stop any seizure.

The looming complications is evidently on the AG’s mind in selecting veteran litigator Selvaratnam. The real test of Selvaratnam’s abilities will be during a complicated litigation fight as and when Low applies to set aside the arrest warrant for Equanimity, Thomas said.

“The arguments would then be vigorously put forward by all sides when the Court hears the matter on its merits, and it is critical that Malaysia has the best barristers. Malaysia’s case must be in safe hands,” the AG stated.

Save by subscribing to us for your print and/or digital copy.

P/S: The Edge is also available on Apple's AppStore and Androids' Google Play.