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Ada Pertanyaan? Hubungi Kami Marcell Sihombing, Nando Narendra
The Financial Services Authority. Photo by: RES
The Financial Services Authority (OJK) has finally given the all clear for the Insurance Arbitration and Mediation Agency (Badan Mediasi dan Arbitrase Asuransi - BAMI) and the Indonesia Capital-Market Arbitration Agency (Badan Arbitrase Pasar Modal Indonesia - BAPMI) to commence operating as Alternative Dispute Resolution (ADR) agencies.
Both of these new agencies now have the authority to preside over ADR disputes arising between consumers and financial-service agencies within the insurance and capital-market sectors.
The BAMI and BAPMI have also now been officially incorporated into the official List of ADR Agencies No. KEP-3/D.07/2015 dated 24 November 2015. Furthermore, Kusumaningtuti S. Soetiono, a member of the OJK’s Board of Commissioners for Consumer Protection and the Education Sector, stated that these two agencies began operations on 1 December 2015. It is hoped that the two agencies in question will at the very least be able to offer dispute-resolution services in the form of mediation, adjudication forums, and arbitration measures.
“It was announced today on the OJK’s official website as well as in the Kompas newspaper that the BAPMI and BMAI began operations on 1 December 2015 in accordance with OJK regulations,” stated Mrs. Soetiono at a seminar held in Jakarta on Thursday, 3 December 2015.
Mrs. Soetiono admitted however that ADR agencies relating to other sectors, such as banking, financing businesses, pension funds and the like had yet to be appointed, as the OJK had yet to formulate which agency within each given sector will be able to meet the prescribed principles of acceptability, independence, efficiency, effectiveness and fairness. However, Mrs. Soetiono expressed her hope that ADR agencies for these sectors would soon be established and commence operations in January of 2016 at the latest.
The establishment of ADR agencies across various financial sectors was mandated under OJK Regulation No. 1/POJK/07/2014 on Alternative Dispute Resolution Agencies in the Financial Services Sector. This 2014 OJK Regulation stipulates that such ADR agencies must be established by 31 December 2015 at the latest.
According to Mrs. Soetiono, Article 11 (2) of the 2014 OJK Regulation stipulated that consumers of financial service in sectors with no ADR agency could file an application with the OJK in order to facilitate the settlement of their disputes. Unfortunately, this provision only applies to disputes that are covered by current OJK Regulations relating to protection for consumers of financial services.
Sondang Martha Samosir, the OJK’s Director of Consumer Protection, was also present at the same event and revealed that the ADR agencies were actually supposed to begin operating in January 2016. Mrs. Samosir said that several issues still had to be resolved, including the administration process as it relates to the procurement of office space for the purpose of receiving complaints, as well as workplaces for ADR agency staff.
Administration matters aside, the OJK has also revealed that its financial-sector dispute settlement and reporting mechanisms comprise of two stages. During the first stage, all disputes must be settled by the respective financial-services agency or businesses.
During this stage, which is known as Internal Dispute Resolution (IDR), the parties should follow international best practices, as each of the businesses concerned must establish a separate complaints unit or, at the very least, add a complaint function to already existing units. The IDR mechanism was regulated under OJK Circular Letter No. 2/SEOJK.07/2014.
Should an IDR mechanism fail to amicably settle a dispute, then the disputing parties may resort to the second stage, which involves the filing of an application with an ADR agency. This means that a consumer must first utilize the IDR mechanism before resorting to the second stage.
Additionally, the filing of a dispute settlement with an ADR agency must be supported by an agreement or contract between the disputing parties stating that they agree to bring their dispute before an ADR agency because an amicable settlement can not be achieved.
An ADR agency must also submit a routine report to the OJK containing a list of businesses who refuse to comply with its decisions. The OJK will use this routine report to impose administrative sanction upon these businesses.
“Essentially, the OJK allows ADR agencies to settle any disputes independently, but their governance and continuity are supervised by the OJK,” asserted Mrs. Soetiono.
The OJK’s decision to accelerate the ADR agencies coming into operation was lauded by David ML Tobing, a lawyer who is also the Coordinator of the National Consumer Protection Institution’s (Badan Perlindungan Konsumen Nasional - BPKN) Commission II.
Mr. Tobing also reaffirmed the existence of ADR agencies as an alternative mechanism for the settlement of disputes that arise in the financial-services sector, and stated that these agencies could replace the function of the Customer Dispute Settlement Agency (Badan Penyelesaian Sengketa Konsumen - BPSK) if the OJK was able to establish ADR agencies up to the regency/municipality levels across Indonesia.
“The OJK should try to establish ADR agencies at the regency and municipality levels, and even at the village level,” concluded Mr. Tobing.
Standardized Contracts
Still referring to disputes that may arise between consumers and businesses, Mr. Tobing also stated that standardized contracts were often a cause of losses for both consumers and businesses.
“Not all consumers act in good faith when they enter into agreements, in fact, some have negative intentions [from the start],” explained Mr. Tobing , who was also present at the event.
Mr. Tobing revealed that at a fundamental level, a claim made against the incorporation of standardized provisions into a contract did not nullify the contract as a whole.
According to him, a claim made against standardized provisions can only nullify the provisions which are deemed to be disadvantageous to one of the parties, instead of totally invalidating all of the rights and obligations resulting from such contracts.
“Demands for total contract nullification have no grounds whatsoever,” Mr. Tobing asserted firmly.
Mr. Tobing also stated that there were already two regulations that specifically prohibited the incorporation of standardized provisions into a contract or agreement, despite the fact that such practices persist, even in the financial industry.
This prohibition is regulated under Article 18 (1) of Law No. 8 of 1999 on Consumer Protection (Consumer Protection Law) and the Elucidation to Article 2 (1) of OJK Regulation No. 1/POJK.07/2013 on the Protection of Consumers in the Financial Services Sector (2013 OJK Regulation).
The above regulation provides the official definition of standardized provisions and clearly prohibits businesses from incorporating such provisions into any of their contracts or agreements. Furthermore, the stipulation set out under the 2013 OJK Regulation adopts almost 90% of the stipulations set out in the Consumer Protection Law.
Mrs. Soetiono affirmed Mr. Tobing’s claim, and further stated that the OJK had already issued OJK Circular Letter No. 13/SEOJK.07/2014 (2014 OJK Circular) on Standardized Contracts in order to emphasize this prohibition.
Mrs. Soetiono also revealed that her institution had already received many requests for an explanation of this SEOJK as well as violations of the prohibition.
“The OJK has recorded some 56 services pertaining to requests for explanation and claims of violation of the 2013 OJK Regulation and the 2014 OJK Circular,” asserted Mrs. Soetiono.
Mr. Tobing then reminded all businesses, especially those in the financial-services industry, to exercise extreme caution and admitted that some personnel from non-governmental consumer-protection agencies (LPKSM) were trying to exploit consumers who believed themselves to be suffering losses owing to standardized provisions.
In order to deal effectively with this issue in the future, Mr. Tobing suggests that businesses first make sure that any LPKSM are really registered with the Ministry of Trade or not, since pretending to be an officially registered LPKSM is a well-known modus operandi.
In addition, another important step involves the reporting of any problems to the relevant institutions, such as the Ministry of Trade, Ombudsman, Regents, and Mayors.
“If they are not registered, then they have no license. Such aggressive, fake LPKSMs must be reported,” concluded Mr. Tobing.
(sp)
Marcell Sihombing, Nando Narendra
The Financial Services Authority. Photo by: RES
The Financial Services Authority (OJK) has finally given the all clear for the Insurance Arbitration and Mediation Agency (Badan Mediasi dan Arbitrase Asuransi - BAMI) and the Indonesia Capital-Market Arbitration Agency (Badan Arbitrase Pasar Modal Indonesia - BAPMI) to commence operating as Alternative Dispute Resolution (ADR) agencies.
Both of these new agencies now have the authority to preside over ADR disputes arising between consumers and financial-service agencies within the insurance and capital-market sectors.
The BAMI and BAPMI have also now been officially incorporated into the official List of ADR Agencies No. KEP-3/D.07/2015 dated 24 November 2015. Furthermore, Kusumaningtuti S. Soetiono, a member of the OJK’s Board of Commissioners for Consumer Protection and the Education Sector, stated that these two agencies began operations on 1 December 2015. It is hoped that the two agencies in question will at the very least be able to offer dispute-resolution services in the form of mediation, adjudication forums, and arbitration measures.
“It was announced today on the OJK’s official website as well as in the Kompas newspaper that the BAPMI and BMAI began operations on 1 December 2015 in accordance with OJK regulations,” stated Mrs. Soetiono at a seminar held in Jakarta on Thursday, 3 December 2015.
Mrs. Soetiono admitted however that ADR agencies relating to other sectors, such as banking, financing businesses, pension funds and the like had yet to be appointed, as the OJK had yet to formulate which agency within each given sector will be able to meet the prescribed principles of acceptability, independence, efficiency, effectiveness and fairness. However, Mrs. Soetiono expressed her hope that ADR agencies for these sectors would soon be established and commence operations in January of 2016 at the latest.
The establishment of ADR agencies across various financial sectors was mandated under OJK Regulation No. 1/POJK/07/2014 on Alternative Dispute Resolution Agencies in the Financial Services Sector. This 2014 OJK Regulation stipulates that such ADR agencies must be established by 31 December 2015 at the latest.
According to Mrs. Soetiono, Article 11 (2) of the 2014 OJK Regulation stipulated that consumers of financial service in sectors with no ADR agency could file an application with the OJK in order to facilitate the settlement of their disputes. Unfortunately, this provision only applies to disputes that are covered by current OJK Regulations relating to protection for consumers of financial services.
Sondang Martha Samosir, the OJK’s Director of Consumer Protection, was also present at the same event and revealed that the ADR agencies were actually supposed to begin operating in January 2016. Mrs. Samosir said that several issues still had to be resolved, including the administration process as it relates to the procurement of office space for the purpose of receiving complaints, as well as workplaces for ADR agency staff.
Administration matters aside, the OJK has also revealed that its financial-sector dispute settlement and reporting mechanisms comprise of two stages. During the first stage, all disputes must be settled by the respective financial-services agency or businesses.
During this stage, which is known as Internal Dispute Resolution (IDR), the parties should follow international best practices, as each of the businesses concerned must establish a separate complaints unit or, at the very least, add a complaint function to already existing units. The IDR mechanism was regulated under OJK Circular Letter No. 2/SEOJK.07/2014.
Should an IDR mechanism fail to amicably settle a dispute, then the disputing parties may resort to the second stage, which involves the filing of an application with an ADR agency. This means that a consumer must first utilize the IDR mechanism before resorting to the second stage.
Additionally, the filing of a dispute settlement with an ADR agency must be supported by an agreement or contract between the disputing parties stating that they agree to bring their dispute before an ADR agency because an amicable settlement can not be achieved.
An ADR agency must also submit a routine report to the OJK containing a list of businesses who refuse to comply with its decisions. The OJK will use this routine report to impose administrative sanction upon these businesses.
“Essentially, the OJK allows ADR agencies to settle any disputes independently, but their governance and continuity are supervised by the OJK,” asserted Mrs. Soetiono.
The OJK’s decision to accelerate the ADR agencies coming into operation was lauded by David ML Tobing, a lawyer who is also the Coordinator of the National Consumer Protection Institution’s (Badan Perlindungan Konsumen Nasional - BPKN) Commission II.
Mr. Tobing also reaffirmed the existence of ADR agencies as an alternative mechanism for the settlement of disputes that arise in the financial-services sector, and stated that these agencies could replace the function of the Customer Dispute Settlement Agency (Badan Penyelesaian Sengketa Konsumen - BPSK) if the OJK was able to establish ADR agencies up to the regency/municipality levels across Indonesia.
“The OJK should try to establish ADR agencies at the regency and municipality levels, and even at the village level,” concluded Mr. Tobing.
Standardized Contracts
Still referring to disputes that may arise between consumers and businesses, Mr. Tobing also stated that standardized contracts were often a cause of losses for both consumers and businesses.
“Not all consumers act in good faith when they enter into agreements, in fact, some have negative intentions [from the start],” explained Mr. Tobing , who was also present at the event.
Mr. Tobing revealed that at a fundamental level, a claim made against the incorporation of standardized provisions into a contract did not nullify the contract as a whole.
According to him, a claim made against standardized provisions can only nullify the provisions which are deemed to be disadvantageous to one of the parties, instead of totally invalidating all of the rights and obligations resulting from such contracts.
“Demands for total contract nullification have no grounds whatsoever,” Mr. Tobing asserted firmly.
Mr. Tobing also stated that there were already two regulations that specifically prohibited the incorporation of standardized provisions into a contract or agreement, despite the fact that such practices persist, even in the financial industry.
This prohibition is regulated under Article 18 (1) of Law No. 8 of 1999 on Consumer Protection (Consumer Protection Law) and the Elucidation to Article 2 (1) of OJK Regulation No. 1/POJK.07/2013 on the Protection of Consumers in the Financial Services Sector (2013 OJK Regulation).
The above regulation provides the official definition of standardized provisions and clearly prohibits businesses from incorporating such provisions into any of their contracts or agreements. Furthermore, the stipulation set out under the 2013 OJK Regulation adopts almost 90% of the stipulations set out in the Consumer Protection Law.
Mrs. Soetiono affirmed Mr. Tobing’s claim, and further stated that the OJK had already issued OJK Circular Letter No. 13/SEOJK.07/2014 (2014 OJK Circular) on Standardized Contracts in order to emphasize this prohibition.
Mrs. Soetiono also revealed that her institution had already received many requests for an explanation of this SEOJK as well as violations of the prohibition.
“The OJK has recorded some 56 services pertaining to requests for explanation and claims of violation of the 2013 OJK Regulation and the 2014 OJK Circular,” asserted Mrs. Soetiono.
Mr. Tobing then reminded all businesses, especially those in the financial-services industry, to exercise extreme caution and admitted that some personnel from non-governmental consumer-protection agencies (LPKSM) were trying to exploit consumers who believed themselves to be suffering losses owing to standardized provisions.
In order to deal effectively with this issue in the future, Mr. Tobing suggests that businesses first make sure that any LPKSM are really registered with the Ministry of Trade or not, since pretending to be an officially registered LPKSM is a well-known modus operandi.
In addition, another important step involves the reporting of any problems to the relevant institutions, such as the Ministry of Trade, Ombudsman, Regents, and Mayors.
“If they are not registered, then they have no license. Such aggressive, fake LPKSMs must be reported,” concluded Mr. Tobing.
(sp)