By Dr. W. Suwito
A. Introduction
One
of the non litigation alternatives for business dispute
resolution is arbitration. The business communities choose arbitration for resolving their dispute because of
its eminency from the court settlement
(litigation process), namely
simple procedure, fast,
less costly and confidential.
The legal basis for
arbitration is the “arbitration clause”
in the main agreement among
the parties that states “in terms of the dispute arises, the parties agree to settle it
by means of arbitration”. Through the arbitration process, an arbitrator or
arbitral tribunal performs a proceeding upon the substances of dispute.
The award is final and binding and enforceable; however,
a party who
dissatisfies with the award may seek a court to set aside the award. Under the Law Nr. 30 of 1999 regarding
Arbitration and Alternative Dispute Resolution, a court may “upon the
application of any party to the arbitration” order to vacate an arbitration
award. The court must find that a
specified ground for vacating the award exists.
In reviewing an arbitration award, the District Court is precluded from
considering the factual or legal issues that were, by voluntary agreement, made
the subject of the arbitration. An
arbitrator's decision will be upheld, unless it is completely irrational or
constitutes a manifest disregard of the law.
The Arbitration Law No. 30 of 1999 has firmly
regulated the jurisdiction of arbitration, yet efforts to annul the award in
the District Court continued to increase, in particular the international
award, which is under Article 1.9 of Law Nr. 30/199 is defined as arbitration
award rendered by an arbitration institute or arbitrator outside the
jurisdiction of Republic of Indonesia, or individual arbitrator or arbitration
institute which pursuant to the law of Republic of Indonesia is considered
international arbitration award. Many
issues have been raised regarding the enforcement of the award, including the
obedience of the court to recognize the jurisdiction of arbitration that
adjudicate case containing arbitration clause, resulting in the law
uncertainty, including arbitration award rendered abroad.[1]
As Rahayu
Ningsih Hoed said:
“There is no warranty or legal certainty
that the international award could be executed in Indonesia. The claimant can
do some efforts againts it to promote its cancellation via the Indonesian
District Court. The precedent in Indonesia is “all of the resistence againts it
always be accomodated by the Indonesian District Court”.
Given such a background, the following report
discusses the enforcement of arbitration award by the Indonesia’s Court. It discusses the ambiguity of the Article 70 of
Arbitration Law regarding the annulment of the award, which has often led to multi
interpretation and inconsistency.
The discussions also include in
what conditions the foreign rendered arbitration award is not executable in
Indonesia and what is meant by the “public policy”, a factor that has been used
as one of reasons to decline the execution of arbitral award,
For the case study, there are two cases involving
annulment of internatonal
arbitration award
by the Central
Jakarta District Court. Based on the legal
reason “ militating with the public order”, and under the verdict No.
86/PN/Jkt.Pst/2001, the District Court annulled the Swiss arbitration
award in the case of
PT. Pertamina vs. Karaha Bodas Company (KBC). This case was selected as a
matter of study because there are many mistakes in the implementation and
enforcement of both the substantive law and procedural law.
B.
What is Arbitration
Award
An arbitration award (or arbitral award) is a determination on
the merits by an arbitration tribunal in an arbitration, and is analogous to a judgment
in a court of
law. Black’s
Law Dictionary defines the award as follows:[2]
“The
decision or determination rendered by arbitrators or commissioners, or other private or
extra-judicial deciders, upon a controversy submitted to them; also the writing
or document embodying such decision”.
Whereas the Article 52 of LawNo. 30 1999 on Arbitration and Alternative Dispute
Resolution, defines the
award as:
“a
final and binding decision/judgement made by an arbitrator on certain legal
relationship of the agreement between the parties who are in a dispute”
For the
purpose of enforcement, the
award shall be
registered at the clerk of the District Court. In addition to final award (putusan akhir), Indonesian
Arbitration Law also recognizes provisional award (putusan sela), conciliation
award (putusan perdamaian) and default judgment (putusan verstek).
a.
Provisional
Award
Article
32 of Law Nr. 30/1999 stipulates that “upon request of a party, tribunal may
issue a provisional award to regulate the proceeding for resolving the dispute
including bail confiscation (sita jaminan), deposit of goods to the third
party, or selling the easily damaged goods. The provisional award may also be
rendered in order to allow multiple issues to be heard in one hearing or trial
and is done when the issues or parties involved overlap sufficiently to make
the process more efficient or fair.
The term is also used in the realm of contracts to describe the joining of
new parties to an existing agreement, if there is any reasonable interest and
agreed by the parties and the tribunal. No matter
what the reason is, the third party’s joining in the dispute settlement will
lead the process become more complicated than ever, and it is so difficult to
get a deal between the parties, that the content of Article 30
Indonesian Arbitration Act No. 30 1999 On Arbitration and
Alternative Dispute Resolution leads any ambiguity on its implementation and
enforcement. The interim award is
frequently used for where:
(1)
Disputes can
conveniently be divided into stages;
(2)
Determination
of preliminary issues may save the time and cost of a prolonged reference;
(3)
The costs of arbitrator’s
award deals with
separately from the substantive issues.
The interim
award does not determine all the matters in dispute between the parties but all the matters
referred to an interim award are determined finally therein. The word “interim”
does not imply that those matters
decided in the interim award are subject to review, but really “final and
binding” for those matters that has been decided for.
b.
Final Award
(Putusan Akhir)
Whenever the
arbitrator or arbitral tribunal accomplishes all of their works, unless
otherwise stated, an award is deemed to be final and binding on the parties,
and it concludes the reference. As soon
as the arbitrator has completed and published his award then his work as an
arbitrator and his power and duty cease. He becomes functus officio, meaning that he has discharged his duty.
It follows
that thereafter he has no jurisdiction to deal with any question or difficulty
that may arise from his award. There are some exceptions to this matter, as it
was assigned within article 70 Indonesian Arbitration Awards No. 30 1999 On
Arbitration And Alternative Dispute Resolution
about “awards cancelation”.
c.
Concilialition
Award (Putusan Perdamaian)
The parties
who are engaged in the dispute settlement may reach any condition of
reconciliation between them before the final awards could be appointed, because
of their own demands or by the arbitrator or arbitral tribunal initiatives, in
order to terminate the dispute by a reconciliation based deal which is stated
in an arbitrator or arbitral tribunal awards that so called as “ Conciliation Awards (Putusan Perdamaian)”.
This awards also has its characteristics of an “arbitration awards”, those are
: final and binding for the parties,
and has the same ‘execution effect’
as the final awards.
d.
Default Judgment (Putusan
Vesrstek)
A judgment entered against a defendant who has failed to plead or otherwise
defend against the claimant’s claim (more than ten (10) days after the second summons has
been received by, and there is no any legal problem or objection on the matter
of claim). This awards
also has the quality of “final and binding” the parties, and has the ‘execution
effect’ as well.
C.
Enforcement
of Arbitration Award
The function of an arbitration award is to resolve a dispute. This does not mean that the dispute has been
resolved completely before the award is executed by the disputed parties, since
the arbitrator has no power or authority to enforce the award. The procedure for obtaining an enforceable
judgment is to petition a court to confirm the award. A court must confirm an arbitration award
unless there are significant reasons to the contrary. The authority of the court is limited on
fulfillment of the formal and procedural administrative requirements for the
award.
For the purpose of enforcement, the Law No. 30 1999 classifies the award into domestic and international arbitration, namely
the Article 59 to 64 for domestic award and Article 65 to 69 for international
award. As defined in the Article 1.9 of
the Law No.3-/1999,
“International Arbitration Awards shall mean awards rendered by an arbitration
institution or individual arbitrator(s) outside the jurisdiction of the
Republic of Indonesia, or an award
by an arbitration institution or individual arbitrator(s) which under the
provisions of Indonesian law are deemed to be international arbitration awards.
In
issuing a writ of execution, the Chief Judge of the District Court shall first
review whether the arbitration award meets some criteria such as
the agreement to resolve the dispute by arbitration is written in a document
signed by the parties, the dispute is in the field of trade and with regard to
the right in accordance with the laws and regulations, and the dispute does not
violate the decency and public order. If according to the
District Court, there is one or more of the said conditions are not met, then
the court
shall reject the request for execution and there shall no recourse whatsoever
to the judgment of the District Court.
For the international arbitration, the procedure
of execution is provided under the provision in the Article 65 trough 69 of
Arbitration Law as a renewal of the same provision in Supreme Court Regulation
Number 1 of 1990 (PERMA) on the Procedure of Enforcement of Foreign Arbitration
Award. The
application for execution of international arbitration award is submitted to
the Central Jakarta District Court along with the document to be filed. Based on the application, the Central Jakarta
District Court issues the decision which grants or refuses to recognize or to
execute the international arbitration award.
If the Chief Judge of Central Jakarta District Court
accepts, recognizes and enforces the international arbitration award then its
award is final therefore is not subject to cassation or appeal. In contrary, if
the Chief Judge of Central Jakarta District Court refuses to recognize and
enforce an international arbitration award, an appeal or cassation may be filed
with the Supreme Court. Within the maximum 90 (ninety) days upon receiving such
request for cassation, the Supreme Court shall consider and rule to accept or
to refuse the request for such cassation.. The decision of Supreme Court is
also final, and no appeal may be submitted against it.
In order to be recognized and enforced, the execution
shall meet certain criteria. Article 66 of Arbitration Law, which states
certain requirements that must be met before an international arbitration award
can be recognized and enforced in the territory of Republic of Indonesia,
namely:
1)
The award is rendered by arbitrator or arbitration
tribunal in a country that Indonesia is bound by a treaty, bilaterally or
multilaterally, on recognition and enforcement of international arbitration
award (reciprocity principle, Article 66).
Indonesia is a signature of the two International Conventions, which are
the basic instrument of law to execute the international award in Indonesia, namely:
a)
Convention
on the Settlement of Investment Dispute Between State and National of Order
State (ICSID) rules that was
ratified by Law No. 5/1968.
b)
NewYork
Convention of the Recognition and Enforcement of Foreign Arbital Award of 1958, which
was ratified
by Presidential Decree
No. 34/1981
2)
The award is limited to award that under the provisions
of Indonesian law falls within the scope of commercial law (Article 66).
3)
The said award may only be enforced in Indonesia if it
does not violate the public order (Article 66).
4)
International arbitration award may be enforced in
Indonesia only upon receiving an order of exequatur from the Chief Judge of the
Central Jakarta District Court.
5)
No appeal or cassation may be submitted against the
Supreme Court’s award that recognizes or refuses an international arbitration
award.
D.
Annulment
of the Award
Section VII of the Law No. 30/1999 (Article 70 -
72) stipulates the requirements to vacate the award, under which the Article 70
states that a party may submit a request for annulment of an arbitration award for reasons of false or
counterfeit and concealed documents (known after the
awards has been rendered) or the rendered award is based on deceit of one of the party. Furthermore, the Article 72 (4) and
(5) of the Law No. 33/1999 stipulates that the losing party may file cassation
to the Supreme Court, who will render its decision within 30 (thirty) days
following the filing of appeal. However,
the Article 70 does not stipulate the necessary law based reasons for the judge in the
District Court to deciding
the petition to annul the award.
Note that the Law No. 30/1999 specifically
addresses the procedure for annulment of the domestic award and it is silent with respect to the annulment of international
award. This is due to that the District
Court is not a competent authority to annul the international arbitration award
by any reasons thereof. This will be
further elaborated in the following case study.
E.
Case
Study
The annulment of
international arbitration award, may be reviewed
from two view points, as follows.
1) Indonesia is
not a “country of origin” where the the award has been made; accordingly the District Court has no authority to do so. Under the 1958 New York Convention on the
Recognition and Enforcement of Foreign Arbital Award and also 1985 UNCITRAL Model Law on International Commercial
Arbitration, the competent authority to set aside International
Arbitration award is in the
country of origin. As Indonesia has ratified the New York
Convention, it became
imperative that Indonesia adopted the “country of origin" principle for
international award within the Law No. 30 1999. While it is a logical approach,
however, it has created a legal loophole that used to deal with a situation where there is no
rule of law.
2) There has been a view among the public, practitioners and law enforcement officials that
"something is not regulated, nor prohibited and if it is not banned then it means should be done". While the view is not wrong, but it should be noted that in
relation to international arbitration, something that is not regulated in the Law No. 30 1999,
should be referred back to the provisions of the New York Convention and the
UNCITRAL Model 1958 law as an instrument of substantive law and procedural law
of international arbitration.
Moreover, recognition
and enforcement of the provisions of the New York Convention 1958 within Law No. 30 1999 is further
highlight by the use of
"public order" principle to resist the execution of foreign awards in
Indonesia as well as to annul the award. This can seen in two
cases, namely the case of Pertamina
against Karaha Bodas Company (KBC) and Bankers
Trust (BT) against Mayora. In both cases, the principle of "public
order" has been used as the ultimate consideration to resist
the execution and simultaneously annul the foreign
rendered award.
In the case of Pertamina versus KBC, in awarding for the annulment of the award, the Central Jakarta District
Court has considered the following:
1)
Appointment
of arbitrators is not in accordance with what has been agreed and not the
arbitrator who has been appointed by the parties under the agreement
2)
Pertamina
has not
not given the proper notice for
the arbitration
3)
Pertamina
has not
not given an opportunity to defend itself
4)
In rendering the award, the arbitral tribunal has not
based on the governing law as stipulated in the contract, namely Indonesian Law
thereby the tribunal has exceeded its authority.
5)
In rendering the award, the arbitral tribunal has based solely on the
principle of "aquo et bono".
A review of the Court’s award shows some
inconsistency and misapplication of the law by the Central
Jakarta District Court as follows:
1) The panel of judges of the Central Jakarta District Court have exceeds
their authority to annul the award that was rendered in Switzerland.
2) The panel of judges has made error in interpreting the implementation of "public
order" principle under the Article 68 of Law Nr. 30/1999.
In reviewing the case, we shall start with the
fact that there are essentially three types of law that govern the process of
arbitration, namely:[3]
1)
Substantive
Law or governing law, which is
used to render the award;
2) Procedural Law, which is the law that governs the
arbitrators and the parties in the process, from the
beginning until the rendering of award;
3) Choiced Law/Lex arbitri, which is
the law of the country where the arbitration takes place. In
Indonesia, the Lex arbitri is Law No.
30/1999.
In the case Karaha Bodas vs Pertamina, the
substantive and procedural law is Indonesia Law, namely Law Nr. 30 of 1999,
while the lex arbitri is Switzerland.
Accordingly, the competent authority to annul the award is Switzerland
Court, while the authority of Central Jakarta District Court is only to accept or reject the execution of foreign rendered arbitral
awards in Indonesia. In short,
the Central
Jakarta District Court has exceeded its authority and
violated the
provisions of the New York Convention 1958 and the UNCITRAL model law in 1958.
In summary, in trying to annul the award, Pertamina should apply to the competent authority in the country of origin where the award
was made, i.e. Switzerland, and not the Central Jakarta District Court that under the New
York Convention 1958 has absolutely no authority to cancel a foreign rendered award. Also, the the Central
Jakarta District Court has misinterpreted the "public order"
principle as the basis for foreign awards cancellation, whereas the
"public order" principle within
the Article 66 (c) of Law No. 30 1999
is intended to determine whether a foreign award can be regognized and enforced in Indonesia. It is noted that there is
absolutely no any indication in the Law No. 30 1999
which states that "public order" principle can be used as a reason
for the court to cancel the foreign award.
Also, the Central Jakarta
District Court has been wrong in the implementation of “public order” under the
Article 66 of Law Nr. 30/1999 and the Article V paragraph (1)(e) of the 1958
New York Convention which says that recognition and enforcement of the award may be refused, at the request
of the party against whom it is invoked, only if that party furnishes to the
competent authority where the recognition that the award has not yet become
binding on the parties, or has been set aside or suspended by a competent
authority of the country in which, or under the law of which, that award was
made.
F.
Ambiguity of Law No. 30/1999
Basically, starting from selection of arbitrator(s) until the award rendered arbitration process is carried out based on an arbitration
agreement. Each party of the agreement shall
act in a good faith to resolve their dispute, while the arbitration process to resolve the dispute follows
the procedure
established by law, including the enforcement of arbitration through the District
Court. However, in
practice, the execution of the awards may face many
obstacles such as efforts to delay and/or to annul the award. This would make
the arbitration process to resolve the dispute is slow and becoming expensive, while
confidentiality would not be achieved.
Under the Law 30/1999, attempts to refuse or delay the execution of the award are carried out under the Article
70 through 72 as follows:
1)
Article
70
Article 70 stipulates the requirements
for annulment of an award as follows:
a) The document used in the arbitral proceedings turns out
false or counterfeit;
b) A notable
document has been concealed by one of the parties; or
c) The awards
has been taken based on a deceit of one of the party
Furthermore, in the
elucidation of Article 70 states that:
".......
the reasons for the cancellation request
is referred to in this article shall be evidenced by
a court decision. If the court stated that the reasons are proven or not
proven, then it can be used by the court as a basis for the judge to grant or
deny the petition ".
Such elucidation, on one
hand requires applicants to submit evidence, namely the court verdict to
support the reasons for annulment of the award, while on the other hand, within the elucidation of the Article 70, with
attention to the word "dapat” or “may” in the
sentence "..... This court decision
'can' be used as a basis for the judge to grant or deny the petition
". Thus, as if it implied that the judge is given the authority to examine
the reasons for the request are not evidenced by a court decision.
This will
cause difficulty for the judge in trying to avoid
re-examining the substance of the case which has been considered in the
arbitration award, and is difficult to avoid the urge to intervene in
arbitration matters. Though Law No. 30 1999
does not give authority to the judge to re-examine the merits of the case that has been decided by the arbitral tribunal, as stated in the explanation of
Article 72 section (2) of Law Nr. 30/1999 as
follows:
“Chairman of the District Court may decide
that after cancellation spoken, the same arbitrator or another arbitrator will
re-examine the relevant dispute or determine that a dispute may no longer be
resolved through arbitration."
The
elucidation of Article 72 section (2) of Law No. 30/1999 may be
interpreted to mean that after an arbitration award is annulled by the District Court, the merits of the case should be re-examined by the
arbitral tribunal. In the case PT. Krakatau Steel vs. International Piping
Products, Inc. (IPP) (Table 1: Case No 4), the judge has granted the
request for annulment in all matters, although reasons for revocation request are not proven
through the court verdict as provided for in the elucidation of Article
70.
The improperly legal reasoning by the judge in the
District Court in deciding
the awards annulment includes among others:
a) The elucidation is not binding, so the inclusion of the court verdict
to support reasons for request for award annulment is not a
necessity to be followed,
but it is an optional in a sense that
it can be used and/or can be ignored. This opinion is clearly in contrary to
the universal principle of law, namely: the body of law and its elucidation is a unity that cannot be separated, so the substances
of legislative elucidation should also be considered as a legal norm.
b) Towards the
reason for false documents, the judge concluded by saying, "....
those letters or documents " can be
declared false ". The use of the term" can be declared false means that it has not yet
confirmed/proven that the document is fake. Judge has not considered whether in
fact the documents were false or not as it was proven from the absence of
evidence that proclaimed its falsity.
Article 70
point (a) of Law No. 30 of 1999 uses the term "be declared false" which indicates that there is absolutely a need for a
court verdict that states the documents and not merely the falsehood that a
petition may be granted. When it is compared with case No. 5, the results of two judges assembly on case
No. 4 and 5 are contradictory. The judges in case No. 4, PT Jaya Nur
Sukses vs. P.T. Hutama Karya et al,, have
rejected the claimant's request for annulment of the award based
on reasons of revocation has not be proven by a
court verdict. In this case, it has been proven that the
understanding and implementation of the Article 70 – 72 of Law No.
30/1999 has been different from one judge to another, even among judges in the same
assembly (dissenting
opinion).
2)
Article 72
Elucidation for Article 72th
article section (2) of Indonesian Act No. 30 1999 On Arbitration And
Alternative Dispute Resolution states:
"Chairman
of the District Court is authorized to check the cancellation charges if
requested by the parties, and set the result of the total or partial
cancellation of the award concerned. Chairman of the District Court may decide
that after cancellation spoken, the same arbitrator or another arbitrator will
re-examine the relevant dispute or determine that a dispute may no longer be
resolved through arbitration. "
In examining
Arbitration Request for Cancellation,
Judges is limited by the provisions of Article 62 section (4) Indonesian
Act No. 30 1999 on Arbitration
And Alternative Dispute Resolution that
states "Chairman of District
Court did not examine the reasons or considerations of the award" so
as not authorized to re-examine the merits of the case has been considered and
decided by arbitrator or arbitral tribunal. But, look at Article 72 section (2)
Indonesian Act No. 30 1999 On Arbitration And Alternative Dispute Resolution,
it seems there will be difficult for judges to avoid a re-examination of the
principal case.
Problems
will arise if the award is canceled in part and granted in another part. Judges
may not be able to cancel some arbitration decisions, and at the same time
granting others without first checking its case subject. Furthermore, the
elucidation of Article 72 section(2) Indonesian Act No. 30 1999 On Arbitration
And Alternative Dispute Resolution states:
“...... Chairman of
the District Court may decide that after cancellation spoken, the same
arbitrator or another arbitrator will re-examine the relevant dispute or
determine that a dispute may no longer be resolved through arbitration”.
Section (2) of Article 72 in Law Nr. 30/1999 does not address whether the
determination of a substitute arbitrator following the award annulment shall be the same arbitral tribunal or appointment of another arbitrator or arbitral tribunal. Such an issue appears to
be related to the case of BANI’s Award cancellation by the verdict of Kudus
District Court No. 30/Pdt.P/2002/ PN.KDS, where by law new appointment of arbitrator is a result of annulment. In this case, the appointed
arbitrator was not BANI, but Ad Hoc Arbitral Tribunal in Kudus.
The verdict of Chief of the District Court had ignored and in contrary to
the agreement of the parties who agree to resolve the dispute through BANI.
In addition,
note that
associated with the court verdict that ordered the arbitral tribunal to
re-examine the case following the annulment of the award has raised question, i.e. to whether the award associated with
reexamination could be reexamined or whether a repeated petition for annulment coud be proposed to? It is not set in the Indonesian Act No. 30 1999 On
Arbitration And Alternative Dispute Resolution, so as giving rise to a legal
loophole that could be exploited by parties who are not acting in good faith,
which in turn leads to legal uncertainty.
In the elucidation of the Section 2 in Article 72 of Law No. 30/1999, there is also a clause which sayas:
"..... The same arbitrator or another arbitrator
will recheck the relevant dispute or determine that a dispute may no longer be
resolved through arbitration "
The sentence
implies that in the beginning, a dispute was an arbitration matter and has been
completely accomplished by the arbitral tribunal, but after being examined for
its execution, it is stated that the dispute resolution no longer be resolved
through arbitration and should be performed by another institution. Does that
another institution mean the District Court which is avoided by the parties
formerly? If it does so, chairman of the District Court ought to release a verdict
that cancel the relevant arbitration agreement firstly. It will be difficult to
do, because the competent authority to assess and decide whether an arbitration
agreement can be canceled or not is the arbitral tribunal and not the District
Court.
G.
Closing Remarks
Based on the above findings, the following conclusions
and recommendations are presented:
1.
Conclusions:
1)
District
Court has no
authority to annul
the foreign award rendered outside
the jurisdiction of the Republic of Indonesia. Annulment of foreign arbitral award
can only be made
by a
competent authority in the country of origin, in which the award is rendered. Under the Article 66 of Indonesia
Arbitration Law, the
District Court has only the
authority to decide whether to accept or reject the execution of an
international arbitration award in Indonesia.
2)
The losing party has often
made efforts to refuse the enforcement of the award (domestic and
international) by means of delaying tactics or annulment. This is due to some part by the ambiguity of
the Article 70
and 72 in Law Nr. 30/1999, which provides a legal loophole to get around the legislation. Such
constraints are also due to lack of a common understanding of the District Court’s judges in interpreting and applying legislation in the
field of arbitration
2.
Recommendations:
1)
The Article
70 and 72 of Law Nr. 30/1999 shall be revised in order: (a) to provide clear limitation
with respect to the
requirements for
a petition for arbitration award annulment. (b) to replace the word "may"
in Article 70 that has
led to multiple interpretations, (c)
to replace
the word "among others", in the elucidation of Chapter VII with the
word" is ", and (d) adding a provision that
ensures after an award is annulled
by the Chief
of the District Court, the arbitration case should be re-examined by the same
arbitral tribunal, unless the parties wish to have another.
2)
Adding
a provision in the Indonesian Act No. 30 1999 On Arbitration And Alternative
Dispute Resolution concerning to international award cancellation so there is
no confusion with the authority of the District Court to overturn the decision
of the domestic arbitration.
3)
Disseminate information on the Law No. 30/1999 to law enforcement officials,
legal practitioners and the public in order to achieve a common understanding with
respect to the
substance, interpretation, implementation and enforcement of the law
in order to achieve legal certainty in resolving the dispute in Indonesia.
REFFERENCES
Garner Bryan, Black’s Law Dictionary, West Publising
Co., 1999.
Gautama, Sudargo,
Arbitrase Baru 1999, Bandung, PT. Citra Adityia Bakti, 1999.
Harahap M Yahya,
Arbitrase, Jakarta, Pustaka Kartini, 1991.
Muhammad,
Abdulkadir, Pengantar Hukum Perusahaan
Indonesia, Bandung, PT. Citra Aditya Bakti, 1993.
Radjagukguk Erman,
Arbitrase Dalam Putusan Pengadilan, Jakarta Cindra Pertama, 2000.
Sheinis N., Richard and
Wingate A., Chad, Enforcement of International Arbitration Awards,
International Law in The US
Soemartono,
Gatot, Arbitrase dan Mediasi di Indonesia,
Jakarta, PT. Gramedia Pustaka Utama, 2006.
Usman Rahmadi, Hukum
Arbitrase Nasional, Jakarta, Garasindo, 2002.
Yudowibowo Syafrudin,
Eksekusi Putusan Arbitrase Internasional di Indonesia: Sebuah Perspektif atas UU No. 30 Tahun 1999,
Yustisia: Edisi Mei – Agustus 2007
Undang-Undang No. 30
Tahun 1999 Tentang Arbitrase Dan Alternatif Penyelesaian sengketa
Budhy Budiman, “Mencari
Model Ideal penyelesaian Sengketa, Kajian Terhadap Praktik Peradilan Perdata
Dan undang-Undang Nomor 30 Tahun 1999”,http://www.uikabogor.ac.id/jur05.htm;
Hikmahanto
Juwana, “Pembatalan Putusan Arbitrase Internasional oleh Pengadilan Nasional”,
dalam Arbitrase Dan Mediasi, Jakarta, 08 & 09 Oktober 2002.
Table 1
Annulment of International and
Domestic Awards
No.
|
Verdict
|
The
Parties
|
Content of
Verdict
|
Legal
Reasoning
|
1
|
No.001
dan 002/Pdt/ Arb.Int/1999/PN.JKT.PST jo.02/Pdt.P/2000/PN.JKT.PST
|
Bankers
Trust Inter-national PLC (BT) vs. PT Mayora Indah Tbk (Mayora)
|
Refused
to execute the international award and over-turned
it
|
Contrary
to public order
|
2
|
No. 86/PN/Jkt.Pst/2001
|
PT.
Pertamina vs. Ka-raha Bodas Company (KBC)
|
Refused
to exe-cute the interna-tional award and over-turned
it
|
Contrary
to public order
|
3
|
No. 01/Pembatalan Arbi-trase
/2009/PN.JKT.PST
|
PT.
Bungo Raya Nu-santara vs. PT. Jambi Resources
|
Overturned
the SIAC Award No. No. 25 2009
|
Absolute
competence, trickery, and contrary to public order
|
4
|
No.
282/Pdt.P/2002/PN. Jak.Sel
|
PT.
Krakatau Steel vs. International Piping Product, Inc. (IPP)
|
Accept
all matters of the petition to overturn the award
|
Trickery,
the rea-sons for cancelation doe not need to be proven by court determination
|
5
|
Putusan
Perdata No. 401/Pdt/G/2001/PN.JKT.BAR tentang pembatalan putusan arbitrase
ad. Hoc No. 01/X/AD-HOC/2001
|
PT.
Jaya Nur Sukses vs. PT. Hutama Karya, (Respondent I), Mo-hammad Salim (Res-pondent II), dan
Hari-anto Sunidja (Respon-dent III)
|
Refused
all matters of the petition to overturn the award
|
Rasons
for the award annulment did
not support by the court determina-tion
|
\
[1] Pembatalan
Putusan Arbitrase Di Pengadilan Negeri Indonesia, Disampaikan dalam Seminar International Commercial
Arbitration di Yogyakarta, Senin, tanggal 25 April 2011, www.hukumonline.com,
diakses 10 Juli 2013
[3] Hikmahanto Juwana, “Pembatalan
Putusan Arbitrase Internasional oleh Pengadilan Nasional”, dalam Arbitrase Dan
Mediasi, Jakarta, 08 & 09 Oktober 2002, hlm. 138
(published at Newsletter Bani on Dec. 2015)
