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Ada Pertanyaan? Hubungi Kami Agus Sahbani, Jazmi Adlan Bohari
The nullification of an arbitral award clause is currently being reviewed at the Constitutional Court following a judicial review petition against the Elucidation of Article 70 of Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution (“ADR Law”) was filed by a business group.
The judicial review was filed by Darma Ambiar and Sujana Sulaeman, each respectively acting on behalf of PT Menerina Cipta Guna and PT Bangun Bumi Bersatu. They are arguing that the Elucidation of Article 70 of the ADR LAW has caused legal uncertainty for them.
Article 70 of the ADR Law states that nullification of an arbitration award may be made if the award is alleged to contain elements of forgery, concealment or fraudulent documents which are discovered after the award has been rendered.
The Elucidation itself further requires that a nullification can only be made for an arbitral award that has been registered with the district court, with the elements required for a nullification validated by a district court ruling.
According to the Applicant, the Elucidation is ambiguous. The argument being put forward is that having to prove the elements for a nullification with a ruling hinders their right to seek justice and renders Article 70 inoperable.
Mualimin Abdi, Acting Director General of Legislation at the Ministry of Law and Human Rights, countered the applicant’s argument by saying that the Elucidation actually gives legal certainty for the business sector. The requirement to prove an act of forgery, concealment or fraud as part of setting aside an arbitration award with a binding ruling of a District Court, on the contrary, can be seen to create certainty.
“The Elucidation is in accordance with Article 70 and functions properly to explain the Article,” said Mr. Abdi.
Mr. Abdi further added that if the Constitutional Court revokes the Elucidation, then Article 70 will lose its meaning and any nullification process of an arbitral award will take a much longer time.
According to Mr. Abdi, the nullification process of an arbitral award only takes 60 days after an award is endorsed according to Article 71 juncto Article 72 (3). Proving the nullification elements should be simple and not time consuming.
“Thus, the judicial review application of the plaintiff should be rejected because the disputed article is not unconstitutional,” concluded Mr. Abdi.
(hot/kc)
Agus Sahbani, Jazmi Adlan Bohari
The nullification of an arbitral award clause is currently being reviewed at the Constitutional Court following a judicial review petition against the Elucidation of Article 70 of Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution (“ADR Law”) was filed by a business group.
The judicial review was filed by Darma Ambiar and Sujana Sulaeman, each respectively acting on behalf of PT Menerina Cipta Guna and PT Bangun Bumi Bersatu. They are arguing that the Elucidation of Article 70 of the ADR LAW has caused legal uncertainty for them.
Article 70 of the ADR Law states that nullification of an arbitration award may be made if the award is alleged to contain elements of forgery, concealment or fraudulent documents which are discovered after the award has been rendered.
The Elucidation itself further requires that a nullification can only be made for an arbitral award that has been registered with the district court, with the elements required for a nullification validated by a district court ruling.
According to the Applicant, the Elucidation is ambiguous. The argument being put forward is that having to prove the elements for a nullification with a ruling hinders their right to seek justice and renders Article 70 inoperable.
Mualimin Abdi, Acting Director General of Legislation at the Ministry of Law and Human Rights, countered the applicant’s argument by saying that the Elucidation actually gives legal certainty for the business sector. The requirement to prove an act of forgery, concealment or fraud as part of setting aside an arbitration award with a binding ruling of a District Court, on the contrary, can be seen to create certainty.
“The Elucidation is in accordance with Article 70 and functions properly to explain the Article,” said Mr. Abdi.
Mr. Abdi further added that if the Constitutional Court revokes the Elucidation, then Article 70 will lose its meaning and any nullification process of an arbitral award will take a much longer time.
According to Mr. Abdi, the nullification process of an arbitral award only takes 60 days after an award is endorsed according to Article 71 juncto Article 72 (3). Proving the nullification elements should be simple and not time consuming.
“Thus, the judicial review application of the plaintiff should be rejected because the disputed article is not unconstitutional,” concluded Mr. Abdi.
(hot/kc)