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Professor of Law, University of Indonesia , Satya Arinanto declares Article 70 and the elucidation of Article 70 of Law Number 30 Year 1999 concerning Arbitration and Alternative Dispute Resolution ( Act AAPS ) could potentially lead to legal uncertainty .

 

According to Satya , three requirements to apply for cancellation of the award are contained in Article 70 of Law AAPS actually derived from Article 643 reglemen civil procedure (Reglement op de Recthvordering , civil procedural law applicable to the class of Europe and the East Indies during Dutch foreign ) involving ten requirements . " But after researching , I found no political background and why the law of the ten who were taken three elements , " he said in the judicial law on AAPS led by Vice Chairman of the Constitutional Court Arief Hidayat in the plenum chamber of the Constitutional Court , Jakarta , Wednesday ( 30/4 ) .

Seven other provisions that are not contained in Article 70 , is considered to be used by parties who are not satisfied with the arbitration decision not to meet its obligations . "This is causing the elucidation of Article 70 of Law AAPS contains the phrase ‘ among others ‘ . Actually there is no reason other than the three that can be used by the parties, " he added .

In addition , legal uncertainty also arises because there are no regulations governing the procedure of arbitration decision of the cancellation request . That in practice , request the cancellation of a civil lawsuit filed to the arbitrator concerned , but quite sought cancellation of the determination of the district court , unless the arbitrator made ​​a mistake .

While the Related Party , Indonesian National Board of Arbitration ( BANI ) represented by Harianto Sunidja explained that the arbitration decision has the power to force , the decision shall be registered with the district court within 30 days after the judgment was delivered . The importance of registering the arbitration decision to the court for cancellation of the award submission can only be submitted to the judgment that had been filed in state court with the reasons of cancellation request that must be proven in court .

Previously , a number of parties to the dispute in BANI sued Elucidation of Article 70 Law on the Constitutional Court to AAPS . In the inaugural session of the Case Number 15/PUU-XII/2014 , Petitioner, represented by attorney Andy Syafrani was potentially harmed by the elucidation of Article 70 of Law AAPS . Petitioner never disputed in BANI with Case Number 443/I/ARB-BANI/2012 . BANI decided to grant most of what is requested in the lawsuit , but the Applicant feel there are some things that still need to be reconsidered in the ruling.

" Because we use our rights in accordance with the provisions provided by the Act to apply AAPS cancellation BANI arbitration award filed in the District Court to have the judgment registered Bandung registered there a place where the defendant is located , " said Andi , Thursday ( 6/3 ) ago .

In ruling on the Bandung District Court , the lawsuit claimed Andi granted Applicant lot. Respondent then filed an appeal to the Supreme Court and is still proceeding .

Article 70 Law on the AAPS states :

The parties to the arbitration award may apply for cancellation if the decision is thought to contain the following elements :

a. Letters or documents filed in the examination , after adjudication , recognized false or otherwise false;

b . Once the decision is taken decisive found documents , which is hidden by the opposing party ; or

c . Decision taken from the ruse carried out by one of the parties in the dispute

The elucidation of Article 70 of Law AAPS states : .... The reasons for the cancellation request is referred to in this article must be proven by a court decision . If the court stated that the reasons are proven or not proven , then the court ‘s ruling could be used as a basis for the judge to grant or deny the request .

Elucidation of Article 70 of Law AAPS assessed the Applicant containing the new norm or covert change as opposed to the substance of the article subject . In addition , the Applicant also assessing elucidation of Article 70 is not operational and legal right to obstruct justice seekers . Therefore , Article 70 of the Law AAPS assessed against the constitution , especially Article 28D paragraph ( 1 ) of the 1945 Constitution . ( Lulu Hanifa / mh )

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