CHALLENGING THE IPIC ARBITRATION CONSENT AWARD
1. The Government of Malaysia will apply to the Courts of England for an order to set aside a Consent Award recorded on 9th May 2017 by an Arbitration Tribunal sitting in London. We are confident that we have a strong case. The Arbitration, conducted under the Rules of the London Court of International Arbitration, was between International Petroleum Investment Company (“IPIC”) and Aabar Investments PJS, as Claimants, and 1MDB and our Minister of Finance Inc., as Respondents.
2. Under the Consent Award, Malaysia is obliged to pay US$5.78 billion to IPIC and the Bond Trustee over a five year period. So far, US$1.46 billion has been paid, leaving a balance of US$4.32 billion, with the next interest payment of US$50 million due on 11th November 2018. Similar interest payments are payable periodically until April 2022. The final bullet payments, representing principal and interest of US$1.8 billion each, are due and payable in May and October 2022.
3. The basis of Malaysia’s legal challenge in the High Court in London is that the Consent Award was procured by fraud or in a manner contrary to public policy. The Court application relates to the knowledge of IPIC and Aabar of the serious allegations made by the United States Department of Justice (DOJ) against former Prime Minister and Finance Minister Najib Razak, who was also the moving spirit and ultimate decision maker in 1MDB. Such knowledge on their part was acquired, “inter alia”, no later than the time when the DOJ’s Press Conference was held by the Attorney General of the United States, Loretta Lynch, in July 2016 when she announced the filing by by DOJ of several civil suits for the freezing of assets purchased by fraudsters from stolen proceeds, and popularly described as the greatest kleptocracy in modern history.
4. The grave, detailed allegations in those DOJ court documents were given tremendous global publicity, particularly in the political and business media. They had certainly entered the global public domain by July 2016. Najib Razak is identified as “MO1” in the DOJ pleadings. Any reasonable reader reading these court documents would immediately become aware of his central role in defrauding 1MDB to the benefit of himself, his stepson and Jho Low.
5. In such circumstances, Malaysia takes the position that IPIC and Aabar were aware of the fraud of Najib Razak. He was principally responsible for 1MDB and Minister of Finance Inc. consenting to the Award. Every system of law would hold that he could not possibly have acted in the best interests of his country and his company. Indeed, he did not. Fraud is an established ground to challenge the consent award for public policy reasons.
6. We are pleased to report that the application will be filed today in the High Court in London. Malaysia will claim that as a result of the fraud, we are relieved from any obligation to pay the balance of the US$4.32 billion to IPIC or Aabar under the Consent Award, and additionally have a right to recover the US$1.46 billion already paid.
30th October 2018