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Ada Pertanyaan? Hubungi Kami Marcell Sihombing, Kartini L. Makmur
The Asia-Pacific Forum for International Arbitration
Business disputes arising between companies from different countries have spiked sharply over the last two years. In fact, the number of such disputes has nearly doubled in the last year. These increases have mainly occurred in countries facing huge economic challenges, such as the United States, England, Germany, China, and Brazil.
This point was made by Singaporean Elodie Dulac, Co-Chair of the Asia-Pacific Forum for International Arbitration (AFIA) at the 2nd Annual Symposium for Arbitrators and Mediators, which was held at Jakarta’s Hotel Borobudur on 2 December 2015. Ms. Dulac further asserted that practitioners of the law should begin to focus on this important issue, as globalization was likely to increase the number of such disputes even more.
Ms. Dulac also explained in her address that cross-border business disputes warranted special attention due to their complex nature, especially in comparison with domestic disputes that occur within a country’s borders. Ms. Dulac also pointed to the various jurisdictional and cultural differences that had to be dealt with in order to resolve such disputes.
“When dealing with cross-border business disputes, there can be real problems when the parties involved attempt to gather evidence from several places,” asserted Ms. Dulac.
Francesca DePaolis, an alternative dispute resolution (ADR) expert from Italy, also commented on the issue of cross-border business disputes and asserted that it was more effective to settle such disputes through mediation or arbitration, as these two ADR mechanisms offered greater flexibility in terms of timeframes, as well as choices of jurisdiction and which laws would prove to be the most relevant for the disputing parties.
The approach mandated by DePaolis is particularly relevant for cases in which one of the disputing countries is known to have a corrupt judicial system, as the litigation process in such a country would likely prove hugely problematic and end up consuming vast amounts of time, money and resources.
Ms. DePaolis also offered several suggestions aimed at ensuring an effective mediation and arbitration process. Essentially, each party must remember the reasons why they choose to follow an ADR mechanism in the first place, whether it’s because the parties involved are looking to secure a decision that can be executed under the jurisdiction of another state or whether it’s to maintain a relationship with their antagonist. According to Ms. DePaolis, such considerations are crucial in deciding the type of ADR mechanism that will eventually be employed.
Ms. DePaolis also sought to remind the assembled delegates that certain strategies must be applied when undertaking an ADR process. Each of the disputing parties, for example, must consider what kind of advantages they can enjoy as they relate to location and the facilities offered by the chosen ADR institution.
Also commenting on this issue, Tony Budidjaja, Managing Partner with the Budidjaja and Associates law firm, outlined several important areas relating to cross-border business disputes. Each party in a dispute, for example, should possess sufficient knowledge of the law as it applies in the jurisdiction of their rival, and should also be well versed in cross-border trade. Cultural differences are also an important factor, according to Mr. Budidjaja, and require a sensitive approach.
Mr. Budidjaja also stated that considerations of the abovementioned areas were vital in order to ensure that each party correctly understood the on-going processes. Even when being helped by a translator or an interpreter, law practitioners must always ensure that they are conveying whatever needs to be conveyed correctly through an appropriate choice of words.
These obligations are also mandated under the reciprocity principle laid out in the New York Convention. As a result of this, Mr. Budidjaja firmly believes that any company wishing to engage in business with Indonesian companies must clearly declare whether they are parties to the New York Convention or not.
Mr. Budidjaja also explained that a number of requirements had to be fulfilled in order for mediation and arbitration results to be enforced in Indonesia. Firstly, there has to be a valid arbitration clause. Secondly, the arbitration panel in question must be eligible to preside over the dispute. And last but not least, the resulting decision must be in the public interest.
“There are no clear definitions as to what constitutes the public interest alas, which is why all parties involved in an arbitration process must consider their actions carefully,” concluded Mr. Budidjaja.
(sp)
Marcell Sihombing, Kartini L. Makmur
The Asia-Pacific Forum for International Arbitration
Business disputes arising between companies from different countries have spiked sharply over the last two years. In fact, the number of such disputes has nearly doubled in the last year. These increases have mainly occurred in countries facing huge economic challenges, such as the United States, England, Germany, China, and Brazil.
This point was made by Singaporean Elodie Dulac, Co-Chair of the Asia-Pacific Forum for International Arbitration (AFIA) at the 2nd Annual Symposium for Arbitrators and Mediators, which was held at Jakarta’s Hotel Borobudur on 2 December 2015. Ms. Dulac further asserted that practitioners of the law should begin to focus on this important issue, as globalization was likely to increase the number of such disputes even more.
Ms. Dulac also explained in her address that cross-border business disputes warranted special attention due to their complex nature, especially in comparison with domestic disputes that occur within a country’s borders. Ms. Dulac also pointed to the various jurisdictional and cultural differences that had to be dealt with in order to resolve such disputes.
“When dealing with cross-border business disputes, there can be real problems when the parties involved attempt to gather evidence from several places,” asserted Ms. Dulac.
Francesca DePaolis, an alternative dispute resolution (ADR) expert from Italy, also commented on the issue of cross-border business disputes and asserted that it was more effective to settle such disputes through mediation or arbitration, as these two ADR mechanisms offered greater flexibility in terms of timeframes, as well as choices of jurisdiction and which laws would prove to be the most relevant for the disputing parties.
The approach mandated by DePaolis is particularly relevant for cases in which one of the disputing countries is known to have a corrupt judicial system, as the litigation process in such a country would likely prove hugely problematic and end up consuming vast amounts of time, money and resources.
Ms. DePaolis also offered several suggestions aimed at ensuring an effective mediation and arbitration process. Essentially, each party must remember the reasons why they choose to follow an ADR mechanism in the first place, whether it’s because the parties involved are looking to secure a decision that can be executed under the jurisdiction of another state or whether it’s to maintain a relationship with their antagonist. According to Ms. DePaolis, such considerations are crucial in deciding the type of ADR mechanism that will eventually be employed.
Ms. DePaolis also sought to remind the assembled delegates that certain strategies must be applied when undertaking an ADR process. Each of the disputing parties, for example, must consider what kind of advantages they can enjoy as they relate to location and the facilities offered by the chosen ADR institution.
Also commenting on this issue, Tony Budidjaja, Managing Partner with the Budidjaja and Associates law firm, outlined several important areas relating to cross-border business disputes. Each party in a dispute, for example, should possess sufficient knowledge of the law as it applies in the jurisdiction of their rival, and should also be well versed in cross-border trade. Cultural differences are also an important factor, according to Mr. Budidjaja, and require a sensitive approach.
Mr. Budidjaja also stated that considerations of the abovementioned areas were vital in order to ensure that each party correctly understood the on-going processes. Even when being helped by a translator or an interpreter, law practitioners must always ensure that they are conveying whatever needs to be conveyed correctly through an appropriate choice of words.
These obligations are also mandated under the reciprocity principle laid out in the New York Convention. As a result of this, Mr. Budidjaja firmly believes that any company wishing to engage in business with Indonesian companies must clearly declare whether they are parties to the New York Convention or not.
Mr. Budidjaja also explained that a number of requirements had to be fulfilled in order for mediation and arbitration results to be enforced in Indonesia. Firstly, there has to be a valid arbitration clause. Secondly, the arbitration panel in question must be eligible to preside over the dispute. And last but not least, the resulting decision must be in the public interest.
“There are no clear definitions as to what constitutes the public interest alas, which is why all parties involved in an arbitration process must consider their actions carefully,” concluded Mr. Budidjaja.
(sp)