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Ada Pertanyaan? Hubungi Kami Christina Desy, Agus Sahbani
The Constitutional Court is currently hearing another judicial review of Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution (“Arbitration Law”). Submitted by Ongkowijoyo Onggowarsito, the petition seeks a review of Articles 67 (1) and 71 of the Arbitration Law regarding the timeframe for international arbitral award registration and annulment.Mr. Onggowarsito believes that Article 67 (1) of the Arbitration Law is flawed in that it does not specify a time limitation for a claimant to register an international arbitral award with the Central Jakarta District Court. Further, the Arbitration Law also fails to provide for an obligation on the court’s bailiff to inform registration to a respondent.
As a result, the respondent may possibly lose an opportunity to claim for an annulment of the registered award, as Article 71 of Arbitration states that an annulment can only be requested within 30 days of a registration. As a consequence, a respondent has no choice but to execute the award.
Mr. Onggowarsito has had personal experience with this issue when he was the respondent to an international arbitration award rendered by the International Cotton Association in December 2012. He has to execute the award, which was registered with the Central Jakarta District Court in May 2014 but only informed to him in August 2014. This three months gap resulted in him losing the opportunity to annul the award.
To prevent a similar situation happening in the future, Mr. Onggowarsito is requesting the Constitutional Court delete both of these articles. He proposes that an award must be registered no longer than 30 days after being rendered and that an annulment can be requested within 30 days after the award registration is informed to the concerned party.
In response to this matter, M. Husseyn Umar, Deputy of Indonesian National Board of Arbitration (Badan Arbitrase Nasional Indonesia – “BANI”), stated that Central Jakarta District Court does not have any authority to annul an international arbitration award and as a consequence Article 67 (1) of Arbitration Law does not specify any time limitation for registering such an award.
Mr. Umar explained that there is a difference between an annulment and refusal of an international arbitration award. An annulment will revoke the award as if it never existed before whereas a refusal only causes the award to not be executed in Indonesia on the basis it contravenes public order and decency as provided for under Articles 4 and 5 of the Arbitration Law.
Mr. Umar further explained that Article V of New York Convention 1958—ratified by Presidential Decree No. 34 of 1981—provides that the annulment of an international arbitration award falls under the authority of the court in the area where the award is rendered. Therefore, a request for the annulment of an award from the International Cotton Association must be made to the High Court in England.
To support his argument, Mr. Umar took the example of the Karaha Bodas case where Pertamina requested the Swiss Federal Supreme Court to annul an award rendered against Pertamina in its dispute with Karaha Bodas Company LLC in Switzerland. Only after an annulment was first obtained was the Central Jakarta District Court able to annul the award.
“Therefore, there is no legitimate reason to repeal Article 67 (1) of Arbitration Law because the Central Jakarta District Court does not have the authority to annul an international arbitration award thus a time limitation is not needed,” commented Mr. Umar.
Further to Mr. Umar’s statement, lawmaker I Putu Sudiartana (Commission III) added that the petitioner had already been informed about the award registration and therefore it is unreasonable for him to claim that the court’s bailiff did not inform about the registration accordingly. As a consequence, Mr. Sudiartana is of the view that the concern about timeframes for notification of a registration is merely a technical and not a constitutional issue.
(hot/kc)
Christina Desy, Agus Sahbani
The Constitutional Court is currently hearing another judicial review of Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution (“Arbitration Law”). Submitted by Ongkowijoyo Onggowarsito, the petition seeks a review of Articles 67 (1) and 71 of the Arbitration Law regarding the timeframe for international arbitral award registration and annulment.Mr. Onggowarsito believes that Article 67 (1) of the Arbitration Law is flawed in that it does not specify a time limitation for a claimant to register an international arbitral award with the Central Jakarta District Court. Further, the Arbitration Law also fails to provide for an obligation on the court’s bailiff to inform registration to a respondent.
As a result, the respondent may possibly lose an opportunity to claim for an annulment of the registered award, as Article 71 of Arbitration states that an annulment can only be requested within 30 days of a registration. As a consequence, a respondent has no choice but to execute the award.
Mr. Onggowarsito has had personal experience with this issue when he was the respondent to an international arbitration award rendered by the International Cotton Association in December 2012. He has to execute the award, which was registered with the Central Jakarta District Court in May 2014 but only informed to him in August 2014. This three months gap resulted in him losing the opportunity to annul the award.
To prevent a similar situation happening in the future, Mr. Onggowarsito is requesting the Constitutional Court delete both of these articles. He proposes that an award must be registered no longer than 30 days after being rendered and that an annulment can be requested within 30 days after the award registration is informed to the concerned party.
In response to this matter, M. Husseyn Umar, Deputy of Indonesian National Board of Arbitration (Badan Arbitrase Nasional Indonesia – “BANI”), stated that Central Jakarta District Court does not have any authority to annul an international arbitration award and as a consequence Article 67 (1) of Arbitration Law does not specify any time limitation for registering such an award.
Mr. Umar explained that there is a difference between an annulment and refusal of an international arbitration award. An annulment will revoke the award as if it never existed before whereas a refusal only causes the award to not be executed in Indonesia on the basis it contravenes public order and decency as provided for under Articles 4 and 5 of the Arbitration Law.
Mr. Umar further explained that Article V of New York Convention 1958—ratified by Presidential Decree No. 34 of 1981—provides that the annulment of an international arbitration award falls under the authority of the court in the area where the award is rendered. Therefore, a request for the annulment of an award from the International Cotton Association must be made to the High Court in England.
To support his argument, Mr. Umar took the example of the Karaha Bodas case where Pertamina requested the Swiss Federal Supreme Court to annul an award rendered against Pertamina in its dispute with Karaha Bodas Company LLC in Switzerland. Only after an annulment was first obtained was the Central Jakarta District Court able to annul the award.
“Therefore, there is no legitimate reason to repeal Article 67 (1) of Arbitration Law because the Central Jakarta District Court does not have the authority to annul an international arbitration award thus a time limitation is not needed,” commented Mr. Umar.
Further to Mr. Umar’s statement, lawmaker I Putu Sudiartana (Commission III) added that the petitioner had already been informed about the award registration and therefore it is unreasonable for him to claim that the court’s bailiff did not inform about the registration accordingly. As a consequence, Mr. Sudiartana is of the view that the concern about timeframes for notification of a registration is merely a technical and not a constitutional issue.
(hot/kc)