Course
: Law in International Business
Lecturer : Dr. Shidarta, S.H.,
M.Hum.
Date
: 21 May 2013 (Session 10)
Topic : Arbitration: Overview According to Law 30 of 1999
Method : Face to Face (F2F)
What is arbitration?
Arbitration term derived from the word "Arbitrare" (Latin) which means "the power to get things done according to the discretion of the case".
Arbitration in Indonesia known as "arbitration" is more clearly seen in the Law. 1 In 1950, the set of the show in the rate of appeals against decisions of the referee, so people tackle the dispute was appointed referee or so-called "arbiter"
UU No. 30/1999
• For the latest regulations governing the arbitration institution, the
government issued Law no. 30/1999 on Arbitration and Alternative
Dispute Resolution, on August 12, 1999 which are intended to replace rules regarding arbitration institution that no longer fit with the times and progress of international trade. Therefore, the provisions of the arbitration referred to in Article 615 s / d 651 RV, HIR Article 377, and Article 705 RBG, is no longer valid. Thus the provisions of the procedural law of the arbitration institution has used the current provisions in the Act NO. 30/1999.
Arbitration is a dispute object of all civil (not criminal) in the field of trade and labor / employment provided that the disputes concerning personal rights can be fully controlled by the parties.
Personal rights "do not include" are rights that do not involve public order or public interest, such as: divorce, child status, recognition of children, guardianship and others.
Agency Procedure Law & Arbitration:
In Indonesia there is a body of arbitration law called the Indonesian National Board of Arbitration (BANI). Where there any legal disputes regarding the arbitration will be resolved to the Indonesian National Agency Arbitrage this as an alternative dispute resolution.
According BANI Arbitration Procedure
How to start an arbitration petition was also provided for in the law No. 30 of 1999 on Article 6 of the initiate arbitration petition, which reads:
Article 6. Petition for Arbitration
1. The arbitration procedure begins with
registration and submission of the Petition for Arbitration by the party who
initiated the arbitration process ("Applicant") in secretariat BANI.
2. Appointment of Arbitrators
In Petitioner's Petition for Arbitration and the Respondent's Answer on the Respondent's request to appoint an arbitrator or submit the nomination to the Chairman of BANI.
3. Costs
Petition for Arbitration must be accompanied devel ¬ postdated registration fees and administrative costs in accordance with the provisions of BANI.
Administrative costs include administrative costs Secretariat, inspection fees and court costs and the cost of the arbitrator Assembly Secretary.
If a third party outside the arbitration agreement to participate and join in the process of dispute resolution through arbitration as contemplated by article 30 of Law no. 30/1999, then the third party is obliged to pay the administrative costs and other expenses in connection with such participation.
4. Examination of the arbitration case will not begin before the administrative fee paid by the parties in accordance with the provisions of BANI.
Such arbitration procedure according to Indonesian National Board of Arbitration (BANI) ranging from understanding the arbitration itself to initiate arbitration procedures. This is a rule that has been regulated by law No. 30 of 1999 on arbitration. The arbitration procedure shall be regulated in the other clauses in the law No. 30 of 1999 on arbitration.
Arbitration institution chosen by the business community, as the parties consider that they are both right, feels entitled to the disputed object, so that each remains in his argument.
Excess Settlement of Disputes Through Arbitration:
1. Confidentiality of the parties' dispute is assured;
2. Unavoidable delays caused by procedural or administrative matter;
3. The parties may choose arbitrators who have the experience and background of the issues in dispute fairly, honestly and fairly;
4. The parties may determine the choice of law to resolve the problem as well as the process and the place of the arbitration process and
5. Arbitrator's decision is a decision binding on the parties through a simple procedure and can be implemented immediately.
2. Appointment of Arbitrators
In Petitioner's Petition for Arbitration and the Respondent's Answer on the Respondent's request to appoint an arbitrator or submit the nomination to the Chairman of BANI.
3. Costs
Petition for Arbitration must be accompanied devel ¬ postdated registration fees and administrative costs in accordance with the provisions of BANI.
Administrative costs include administrative costs Secretariat, inspection fees and court costs and the cost of the arbitrator Assembly Secretary.
If a third party outside the arbitration agreement to participate and join in the process of dispute resolution through arbitration as contemplated by article 30 of Law no. 30/1999, then the third party is obliged to pay the administrative costs and other expenses in connection with such participation.
4. Examination of the arbitration case will not begin before the administrative fee paid by the parties in accordance with the provisions of BANI.
Such arbitration procedure according to Indonesian National Board of Arbitration (BANI) ranging from understanding the arbitration itself to initiate arbitration procedures. This is a rule that has been regulated by law No. 30 of 1999 on arbitration. The arbitration procedure shall be regulated in the other clauses in the law No. 30 of 1999 on arbitration.
Arbitration institution chosen by the business community, as the parties consider that they are both right, feels entitled to the disputed object, so that each remains in his argument.
Excess Settlement of Disputes Through Arbitration:
1. Confidentiality of the parties' dispute is assured;
2. Unavoidable delays caused by procedural or administrative matter;
3. The parties may choose arbitrators who have the experience and background of the issues in dispute fairly, honestly and fairly;
4. The parties may determine the choice of law to resolve the problem as well as the process and the place of the arbitration process and
5. Arbitrator's decision is a decision binding on the parties through a simple procedure and can be implemented immediately.
Settlement of Disputes Through Arbitration
weaknesses:
1. Arbitration award is very dependent on the technical ability of arbitrators to give a satisfactory decision for both parties. Because even if the arbitrator is an expert, but not necessarily be able to satisfy the parties;
2. Not bound by the arbitration decision before, or do not know the legal precedence. Therefore, the award could have been the opposite and contradictory;
3. Recognition and implementation or execution of the award depends on the recognition of and confidence in the arbitration institution itself;
4. The arbitration process will take time, effort and cost is more expensive, if there is one party that has not been satisfied and still want to bring an arbitration award.
Similarly, a brief description of the advantages and disadvantages of dispute resolution through arbitration proceedings.
Conclusion:
Based on the description of the advantages of choosing arbitration then the conclusion is that the most ideal for businesses in resolving disputes is arbitration. The reason is that arbitration is an efficient solution because it is based on good faith, cooperation and without confrontation. This makes solving problems that are "win win solution". In contrast to the settlement in court that is "win-lose". I conclude that the Arbitration is a way of solving a problem or a dispute between the parties want and will hold an agreement that is devoted to an agreement in the field of business, therefore I have described some of the advantages and disadvantages that occur in a settlement of the dispute through the means arbitration today.
1. Arbitration award is very dependent on the technical ability of arbitrators to give a satisfactory decision for both parties. Because even if the arbitrator is an expert, but not necessarily be able to satisfy the parties;
2. Not bound by the arbitration decision before, or do not know the legal precedence. Therefore, the award could have been the opposite and contradictory;
3. Recognition and implementation or execution of the award depends on the recognition of and confidence in the arbitration institution itself;
4. The arbitration process will take time, effort and cost is more expensive, if there is one party that has not been satisfied and still want to bring an arbitration award.
Similarly, a brief description of the advantages and disadvantages of dispute resolution through arbitration proceedings.
Conclusion:
Based on the description of the advantages of choosing arbitration then the conclusion is that the most ideal for businesses in resolving disputes is arbitration. The reason is that arbitration is an efficient solution because it is based on good faith, cooperation and without confrontation. This makes solving problems that are "win win solution". In contrast to the settlement in court that is "win-lose". I conclude that the Arbitration is a way of solving a problem or a dispute between the parties want and will hold an agreement that is devoted to an agreement in the field of business, therefore I have described some of the advantages and disadvantages that occur in a settlement of the dispute through the means arbitration today.
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