Actually, he wasn’t.

Be warned: the developments in Spanish court have so little basis in legal reality that they can only be the result of a corrupt process.  It took us years to come to that conclusion – we couldn’t believe that a respected EU jurisdiction functioned more like a banana republic.  To his credit, Stampa seems to have understood the threat much better, and it is exactly why he moved the arbitration to France.

Here’s what happened.   The Spanish TSJM court selected Stampa as arbitrator in May 2019 out of the proverbial – or perhaps even an actual – hat.  His was one of three names supplied to the court by the Madrid Bar of qualified, English-speaking arbitrators with no connections to Malaysia or the Philippines. It was up to the selected arbitrator, not the court, to determine whether he had authority to act as an arbitrator.  That in turn would depend on how the arbitrator (not the court) interpreted the language of the dispute clause in the 1878 Agreement.

It’s a peculiarity of arbitration, but it makes sense: in this situation, the arbitrator derives his authority not from the body that took his name out of a hat; he draws it from justifying his role as the arbitrator.  If you don’t like – and wish to challenge – the arbitrator’s authority, you are welcome to do so by application of the arbitration law.  That is the one thing Malaysia has wanted to avoid above all else.

Perhaps the above explains why there is no provision in the Spanish Arbitration Act for reversing an arbitrator’s appointment.  But that is exactly what a different panel of the Spanish court purported to do, under highly suspicious circumstances in June 2021.

The court’s reasoning? Two out of the three judges agreed with a Malaysian claim that because Malaysia had received the official notices in its Embassy in Madrid, this Embassy didn’t count as part of the Malaysian Foreign Ministry so could not receive legal notices from the Spanish Government.  Yes:  Read that again… Exactly.  It is that ridiculous.

But it gets better…

Malaysia said that the etiquette of delivery meant that Malaysia suffered serious prejudice, so great that it was legally defenseless.  If this is sounding ridiculously improbable, then you are reading it correctly.  And don’t think that this was because Malaysia didn’t receive the material.  Service was acknowledged, and the Attorney General’s Chambers even filed service documents to court in Kota Kinabalu in 2019.  (For more about the technicalities of that service, see here; for more about the 2021 decision and its infirmities, see here.)

But it gets even better….

Malaysia still had to deal with the fact that, whatever its ridiculous story, it had 20 days in which to file a complaint of ‘defenselessness’.  And its Spanish lawyers, Uria Menendez had first made a fuss about the delivery etiquette in December 2019, in Malaysia’s own courtroom in Kota Kinabalu.   It was far too late to play this card.

So, in 2020 Malaysia hired a different Spanish lawyer, David Arias, who in 2021 suddenly announced that he had read the court file that had recently been sent to him and was shocked to see that the delivery of documents in 2019 (supposedly) broke diplomatic norms.  And everyone had to pretend that the Malaysian Attorney General’s Chambers, which first flagged up this issue in 2019, and its Spanish lawyers Uria Menendez who had filed documents on his in 2019 and 2020 had not known about any of this until Mr. Arias discovered it all over again in March 2021.  Then Mr. Arias filed it again within 20 days of Malaysia ‘finding out’.  (When it was really nearly two year later.)

Arbitration just doesn’t work that way, in Spain or elsewhere.  In other such cases, where local courts start interfering with the arbitral process, arbitrators have moved the procedure elsewhere.  That’s exactly what Stampa did when he moved the arbitration to France.

One thing that the 2021 decision never did was to dismiss Stampa from his position as arbitrator.  Also, the TSJM in 2022 said that it would not – and could not – undo his appointment.  To the extent that there was ever any instruction to Stampa to stop arbitrating, it came from the Court Clerk. That clerk is now under criminal investigation for overstepping his authority and misrepresenting the Court’s position.

We also know why the Court Clerk sent the instruction to Stampa.  It was because Malaysia’s lawyers told him to.  The Clerk admitted as much in a document, submitted to the prosecutors, that came to light in Stampa’s criminal trial.

But, you will say:  Didn’t Stampa just get convicted for continuing to act as Arbitrator when he was told to stop?  Actually, he was convicted for not stopping when a clerk of the court told him to stop. Notably, the judges themselves had not given him any instruction. This is, of course, as crazy as it sounds.

So, Stampa is now appealing to the Supreme Court a criminal conviction for “disobeying” a supposed instruction to stop the arbitration.  But that instruction was sent by a Court Clerk not at the request of the judges but of Malaysia.

If all that sounds to you like a fair result arising out of a disinterested justice system, there may be a place for you in some parts of the Spanish judiciary.