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Ada Pertanyaan? Hubungi Kami Marcell Sihombing, Fitri N. Heriani
When the ASEAN Economic Community (AEC) is officially inaugurated in January 2016, each ASEAN member state will be free to circulate goods, labor, capital, and services throughout the region. Driven by different backgrounds and interests however, disputes between businesses competing under the AEC framework will surely be inevitable.
According to legal practitioner Frans Hendra Winarta, trade arbitration has now been developed as an effective and efficient settlement forum for commercial disputes.This is due to the fact that arbitration offers a flexible settlement mechanism, as well as confidentiality protection, win-win solutions, and final and binding awards. As a result of these characteristics, Mr. Winarta believes that trade arbitration has a significant role to play in the settlement of business disputes that occur within the AEC.
Anticipating an increase in the number of business disputes, as well as the establishment of an effective and efficient dispute-settlement mechanism, Mr. Winarta proposes an amendment to Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution (Arbitration Law). According to Winarta, the current Arbitration Law is no longer relevant to the most recent developments within the realms of international arbitration. For example, Mr. Winarta explained that there was now a clear distinction as regards the duties of courts and arbitration agencies in both Singapore and Australia. In these countries, arbitration is designated solely as a forum for the settlement of commercial disputes.
Mr. Winarta further asserted that two main issues urgently needed to be revised under the framework of the current Arbitration Law. The first issue relates to the authority of arbitrators to determine their own jurisdictions before hearing cases. Mr. Winarta expressed his strong hope that this competency principle would be clearly stipulated if the current Arbitration Law ends up being amended.
The second issue relates to Article 70 of the Arbitration Law, which enables one of any pair of disputing parties to file a motion with a related district court for the annulment of an arbitral award. Mr. Winarta emphasized that any arbitral award should be final and binding, and that there was no need to allow for any further appeals. Additionally, the court must become an institution that supports arbitral awards instead of quashing them.
“Once disputing parties agree to choose arbitration as their dispute settlement forum, they are bound by it. This is similar to the principle of pacta sunt servanda,which statesthat if one has made a promise, then one must abide by it and not violate it. There should thus be no chance to file for an appeal, and the filing of a dispute with a court should be considered a breach of agreement. The court should thus strengthen its system of arbitral awards,” added Mr. Winarta.
Also commenting on this issue, Sugihono Kadarisman, Vice-Chair of the International Chamber of Commerce’s (ICC) National Committee for Indonesia, asserted that the dichotomy between foreign and national issues was no longer applicable in this era of globalization. Instead, Indonesia should focus its energies on creating employment opportunities, increasing the population’s purchasing power, and developing public welfare.
According to Mr. Kadarisman, the development of the Indonesian economy has always been focused on improvements to the supply side, despite the fact that Indonesia has often encountered various structural obstacles.
“In fact, the development of the demand side also has an important role to play in the building of a healthy market economy, including for foreign parties,” asserted Mr. Kadarisman.
Mr. Kadarisman has thus urged the government to create stable market conditions so that both foreign and domestic businesses can thrive, and to continue the deregulation of the trade sector, so as to make for a far more user-friendly market experience. Furthermore, according to Mr. Kadarisman, the government must also formulate various deregulatory stimulus packages with the ultimate aim in mind of developing sectors that will eventually be able to contribute to trade and investment activities within the infrastructure sector, as well as the financial and taxation sectors, and so forth.
(rfs/sp)
Marcell Sihombing, Fitri N. Heriani
When the ASEAN Economic Community (AEC) is officially inaugurated in January 2016, each ASEAN member state will be free to circulate goods, labor, capital, and services throughout the region. Driven by different backgrounds and interests however, disputes between businesses competing under the AEC framework will surely be inevitable.
According to legal practitioner Frans Hendra Winarta, trade arbitration has now been developed as an effective and efficient settlement forum for commercial disputes.This is due to the fact that arbitration offers a flexible settlement mechanism, as well as confidentiality protection, win-win solutions, and final and binding awards. As a result of these characteristics, Mr. Winarta believes that trade arbitration has a significant role to play in the settlement of business disputes that occur within the AEC.
Anticipating an increase in the number of business disputes, as well as the establishment of an effective and efficient dispute-settlement mechanism, Mr. Winarta proposes an amendment to Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution (Arbitration Law). According to Winarta, the current Arbitration Law is no longer relevant to the most recent developments within the realms of international arbitration. For example, Mr. Winarta explained that there was now a clear distinction as regards the duties of courts and arbitration agencies in both Singapore and Australia. In these countries, arbitration is designated solely as a forum for the settlement of commercial disputes.
Mr. Winarta further asserted that two main issues urgently needed to be revised under the framework of the current Arbitration Law. The first issue relates to the authority of arbitrators to determine their own jurisdictions before hearing cases. Mr. Winarta expressed his strong hope that this competency principle would be clearly stipulated if the current Arbitration Law ends up being amended.
The second issue relates to Article 70 of the Arbitration Law, which enables one of any pair of disputing parties to file a motion with a related district court for the annulment of an arbitral award. Mr. Winarta emphasized that any arbitral award should be final and binding, and that there was no need to allow for any further appeals. Additionally, the court must become an institution that supports arbitral awards instead of quashing them.
“Once disputing parties agree to choose arbitration as their dispute settlement forum, they are bound by it. This is similar to the principle of pacta sunt servanda,which statesthat if one has made a promise, then one must abide by it and not violate it. There should thus be no chance to file for an appeal, and the filing of a dispute with a court should be considered a breach of agreement. The court should thus strengthen its system of arbitral awards,” added Mr. Winarta.
Also commenting on this issue, Sugihono Kadarisman, Vice-Chair of the International Chamber of Commerce’s (ICC) National Committee for Indonesia, asserted that the dichotomy between foreign and national issues was no longer applicable in this era of globalization. Instead, Indonesia should focus its energies on creating employment opportunities, increasing the population’s purchasing power, and developing public welfare.
According to Mr. Kadarisman, the development of the Indonesian economy has always been focused on improvements to the supply side, despite the fact that Indonesia has often encountered various structural obstacles.
“In fact, the development of the demand side also has an important role to play in the building of a healthy market economy, including for foreign parties,” asserted Mr. Kadarisman.
Mr. Kadarisman has thus urged the government to create stable market conditions so that both foreign and domestic businesses can thrive, and to continue the deregulation of the trade sector, so as to make for a far more user-friendly market experience. Furthermore, according to Mr. Kadarisman, the government must also formulate various deregulatory stimulus packages with the ultimate aim in mind of developing sectors that will eventually be able to contribute to trade and investment activities within the infrastructure sector, as well as the financial and taxation sectors, and so forth.
(rfs/sp)