Consent, Jurisdiction, and the Integrity of International Arbitration: the Heirs of Sulu v. Malaysia case

The Heirs to the Sultanate of Sulu v. Malaysia case has generated a wealth of court rulings across multiple jurisdictions. Its appeal lies in its extraordinary background involving an arbitration agreement concluded in 1878 during the colonial era which the parties’ successors sought to enforce more than a century later. This paper focuses on the decisions issued by the French courts on jurisdiction. The central issue was whether the designation by the parties in their arbitration agreement of the Consul General of the British Crown in Brunei to address their disputes — an office that no longer exists — rendered the arbitration clause inoperative. As this function was found to be a decisive element of the parties’ consent, the clause had become impossible to perform and thus void. Enforcement in France was denied.