2. MEMBERS OF THE TEAM
3.
3.
2.
1. Najma Furaida (C1I023002)
Talitha Anindya (C1I023020)
Arthamevia Faustina (C1I023028)
Nida Fauziyah (C1I023033)
Rinnekso Hayoe (C1I023034)
Lauren Almerinda(C1I023044)
4.
5.
6.
3. Arbitration History
• Arbitration has been used since ancient times before the advent of English
common law.
• Dispute resolution through arbitration dates back to the golden age of Ancient
Greece, Judaism and Ancient Rome.
• The institution of the Consules Mercatorium is one example of the application
of arbitration in resolving disputes between merchants and mercantilists.
Developments in Europe
• Arbitration institutions are growing and becoming institutionalized in
European countries such as the United Kingdom, France and the Netherlands
• In Napoleon's golden age, the Netherlands and other mainland European
countries including Belgium were controlled by France.
•The Judge et Consul institution was established in 1250 as an arbitration
institution in the Netherlands, and this concept applies in Indonesia through the
principle of concordance of article 131 IS.
A.
4. Developments in Indonesia
• Post-colonial Indonesia continued to use colonial law in
accordance with the 1945 Constitution.
Based on article II of the
Transitional Rules of the
1945 Constitution.
• The Indonesian National Arbitration Board (BANI) was established on December
3, 1977.
• The establishment of BANI is expected to help resolve business disputes and
reduce the burden on the courts.
5. B. ARBITRATION & ALTERNATIVE
DISPUTE RESOLUTION (ADR)
UU No. 30 of 1999 states that arbitration is a method of
settling conflicts outside of public courts on the basis of a
written arbitration agreement between the disputing
parties.
A number of legal experts offer their perspectives on
arbitration, including Subekti, Sudikno Mertokusumo, Z.
Asikin Kusumaatmadja, and Sidik Suraputra.
6. C.
ARBITATION
Cases That Are Not Possible Through Arbitration
Arbitration is a settlement of cases without a court but not
all cases can be resolved by arbitration.
7. Article 3 paragraph 1 of
Law No. 14 of 1970, does
not specify what is not
allowed to be resolved
through arbitration.
Law No. 30/1999 is divided into 11 chapters and further divided into
82 articles.
Article 5:
Disputes that can be resolved through arbitration are only
disputes in the field of trade and regarding rights that
according to laws and regulations are fully controlled by the
parties to the dispute.
1.
Disputes that cannot be resolved through arbitration are
disputes that according to the law cannot be reconciled.
2.
Article 47 of Law
No. 8 Year 1999
However, according to H.M.N Purwosucipto, disputes that
can be resolved through arbitration by looking at history.
Such as :
1. Sale and purchase of companies
2. Labor / work agreement
3. broker and commissioner
4. transportation agreement, etc.
8. D. LEGAL BASIS OF ALTERNATIVE
DISPUTE RESOLUTION (ADR)
Law No. 14 of 1970's Article 3 paragraph (1) permits out-
of-court settlements through peace talks or arbitration.
Law Number 30 Year 2000 eliminated article 615 Rv,
however for alternative conflict resolution, it is still
advisable to consult the previous regulation.
Disputes may be submitted to an arbiter under Article 615
Paragraph (1) Rv, with Law No. 30 of 1999 Article 59
Paragraph 10 governing the method of execution.
In line with article 60 of Law No. 30 of 1999, the
arbitration ruling is conclusive and legally enforceable
against the parties.
9. E. International Dispute Resolution Methods
In International Disputes, there is a default, which means not
fulfilling the obligations specified in the agreement made.
Dispute resolution can go through the stages of informal
negotiation and if it is not successful through conciliation,
arbitration.
10. ARBITRATION IN INTERNATIONAL
DISPUTES
international disputes
legal facts
Legal norms of
the parties
institution appointed by the
parties in case settlement
An institution with international character must
fulfill the following three characteristics :
1. International in terms of its organization.
2 International by its structure or procedures.
3. International by its facts.
F.
11. Some international arbitration institutions that are often used to resolve business disputes include:
1. The Inter-American Commercial Arbitration Commission
2. The Canadian-American Commercial Arbitration Commission for Dis- putes Between Canadian
and US Business
3. The London Court of Arbitration Decision are Enforceable Under English Law and Engish Court
4. The American Arbitration Association
5. The International Chamber of Commerce (ICC)
6. International Center for Settlement of Investment Dispute (Afiliasi Bank Dunia)
7. Euro Arab Chamber of Commerce
8. Arbitration Institute of the Stockholm Chamber of Commerce
9. United Nations Commission for International Trade Law (UNCITRAL)
10. Dispute Settlement Body (WTO)
The 1958 Convention and the 1965 Washington Convention require
compliance with foreign arbitral awards.
Article 1 number
1 of the New
York
Convention
12. G. The Elements of Arbitration
1. Justice of the Peace
- To reach a final decision in a justice of the peace is usually done by a system of mutual agreement on
dispute resolution.
2. Parties
-The parties usually consist of businessmen, who do not have much time to settle their disputes with other
businessmen before the general court.
3. Agreement
-The agreement must exist and be in writing, if the agreement does not exist, then referee justice cannot be
carried out.
4. Disputed Rights
-A private right, which the state has a role in regulating or controlling if there is a dispute, cannot be
submitted to a referee court
5. Referee
-The referee must be an impartial judge, expert in the field of the private right in dispute.
6. Judicial Decision of the Referee
-The decision must be obeyed by both parties.
7. The Referee's Decision is the Final Decision
-The referee's decision is the final decision, so in essence there is no appeal or cassation.
13. 1.Confidentiality of disputes ensured.
2. Avoidance of delays from procedural issues.
3. Selection of knowledgeable, fair arbitrator by parties.
4. Flexibility in choosing legal procedures and arbitration terms.
5. Binding decision implemented swiftly by simple process
H
.
ARBITRATION ADVANTAGES
14. Based on Article 12 of Law No. 30 Year 1999, a person may be appointed as an arbitrator if
he/she fulfills the following requirements :
(1) Those who may be appointed as arbitrators must fulfills the following requirements :
a. capable of performing legal acts;
b. be at least 35 years old;
c. not have a family relationship by blood or consanguinity up to the second degree with one of the
parties to the dispute;
d. has no financial or other interest in the arbitration award;
e. has experience and actively mastered in his/her field for at least 15 years.
(2) Judges, prosecutors, clerks and other judicial officials cannot be appointed as arbitrators.
I Qualifications of Arbitrators
15. ARBITRATION CLAUSES OF SOME
COUNTRIES
J.
1.Korea: Arbitration in Seoul - Korean Law.
2.Singapore: Arbitration in Singapore - SIAC Rules.
3.Netherlands: Arbitration - Dutch Arbitration Institute.
4.ICC: ICC Rules for arbitration.
5.UNCITRAL: UNCITRAL Rules - arbitration.
6.BANI: Arbitration in Indonesia - BANI
16. ARBITATION
K.
WTO and Alternative Dispute Settlement
Resolving trade disputes is one of the core activities of the WTO. A dispute
arises when a member government believes another member government is
violating an agreement or a commitment that it has made in the WTO.
17. Functions:
Establishing world trade organization (WTO)
governing organizational decision-making.
administering trade agreements
acting as a forum for trade negotiations
settling trade disputes
reviewing national trade policies
building the trade capacity of developing economies
cooperating with other international organizations
Structure :
minister conference
general council
council for trade in goods
council for trade in services
council for trips
dispute settlement body
trade policy review body
18. L.
Annulment of Arbitration Decision
Arbitration decisions can be canceled by several things in
article 70 of Law No. 30 of 1999.
Article 71 of Law No. 30 of 1999 is a technical submission of a request for
annulment of an arbitration award must be submitted in writing no later than
30 (thirty) days, starting from the day of filing and registration of the
arbitration case to the district court clerk.
