Constitutional Justice Anwar Usman leading the panel preliminary hearing of the material judicial review of Law No. 30 of 1999 on Arbitration, Tuesday (1/23/2024). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — Diding Jalaludin, an advocate, has filed a material judicial review petition of Article 65, Article 66 letter d, Article 67 paragraph (2), and Article 68 paragraphs (1) and (2) of Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution (Arbitration Law).

The Petitioner, who appeared before the Court without legal counsel, revealed that he was exploring an agreement with a foreign company involved in an international arbitration case. The case, which it won, had been ruled by an arbitration body in a foreign arbitration agency. He received information from said company that the arbitration award had been registered with the Central Jakarta District Court, which he was happy about. Therefore, he wishes that it is executed in Indonesia soon.

The Petitioner was surprised and wondered how the foreign company had been aware that the international arbitration award had been registered when there is no provision in the Arbitration Law stipulating that the Central Jakarta District Court is obliged to notify the parties regarding the registration of international arbitration award.

“If [I] delivered the information as is when some of it is not in line with the provisions of the Arbitration Law, he would [be subject to sanction] and could potentially lose [my] clients’ trust,” he said at the preliminary hearing of the judicial review of the case No. 4/PUU-XXII/2024 in the plenary courtroom on Tuesday, January 23, 2024.

He believes that parties involved in a case must be properly notified of every action or result of an action taken by one of them so that they are aware and can exercise legal rights or obligations from the action or result of the action. The obligation to notify all parties falls to the petitioner who will make a request for arbitration. They are obliged to notify the respondent of his intention. This is regulated in Article 8 paragraph (1) of the Arbitration Law.

The Petitioner argues that the absence of rules requiring the Central Jakarta District Court to notify the registration of an international arbitration award, which should be contained in Article 65 of the Arbitration Law, has harmed his constitutional rights as a legal representative of the parties concerned, who has the right to fair legal certainty and equality before the law as guaranteed by Article 28D paragraph (1) of the 1945 Constitution and the right to obtain information as stipulated in Article 28F of the 1945 Constitution.

The Petitioner is an advocate, legal consultant, and certified mediator. He has been a legal representative for an arbitrator of a foreign arbitration institution to take legal action on an international arbitration award and ensure it can be implemented in Indonesia.

Petitums

In the petitums, the Petitioner requests that Article 65 of the Arbitration Law be declared unconstitutional and not legally binding if not interpreted as “(1) The authority to handle matters with respect to the registration, recognition, and enforcement of International Arbitration Awards shall be the Central Jakarta District Court; (2) Within a maximum period of 45 (forty-five) days from the date the International Arbitration Award is pronounced, the Arbitrator or their Proxy shall register the award with the Registrar’s Office of the Central Jakarta District Court; (3) Registration as referred to in paragraph (1) must attach: a. the original text or an authentic copy of the International Arbitration Award in accordance with the provisions on authentication of foreign documents and an official Indonesian translation of the text; b. the original text or an authentic copy of the agreement that is the basis for the International Arbitration Award in accordance with the provisions on authentication of foreign documents and an official Indonesian translation of the text; and c. a statement from the diplomatic representative of the Republic of Indonesia in the country where the International Arbitration Award was rendered, stating that the claimant’s country is bound to the Republic of Indonesia by bilateral or multilateral treaty on the recognition and execution of International Arbitration Award; (4) The Central Jakarta District Court shall issue a Deed of Registration of International Arbitration Award and deliver it to the Arbitrator, the Claimant, the Respondent, and/or their Attorneys no later than 14 (fourteen) days since the registration request is received; (5) A request for recognition and execution of an International Arbitration Award must attach a Letter of Request and a copy of the Deed of Registration of the International Arbitration Award.”

The Petitioner also requests that the Court declare Article 66 letter d unconstitutional and not legally binding. Similarly, he requests that the Court declare Article 67 paragraph (2) unconstitutional and not legally binding if not interpreted as “The Chairman of the District Court may accept an application of the recognition and execution of an International Arbitration Award by ordering the enforcement/execution of the Award or rejecting the application by taking into account Article 66 of this Law.”

The Petitioner also requests the Court to declare Article 68 paragraphs (1) and (2) unconstitutional and not legally binding if not interpreted as “(1) No appeal or cassation to the Supreme Court may be made against a decision of the Chairman of the Central Jakarta District Court as contemplated in Article 67 paragraph (2) that recognizes and enforces the International Arbitration Award; (2) A cassation may be made against a decision of the Chairman of the Central Jakarta District Court contemplated in Article 67 paragraph (2) for refusing to recognize and enforce an International Arbitration Award; (3) The Supreme Court Shall review and decide on any appeal submitted to it, as contemplated in paragraph (2), within a period of 90 (ninety) days after the application for cassation has been received by the Supreme Court; (4) No appeal can be submitted against the decision of the Supreme Court contemplated in Article 66 letter e.”

Justices’ Advice

The hearing was presided over by Constitutional Justices Anwar Usman (panel chair), Daniel Yusmic P. Foekh, and M. Guntur Hamzah. Justice Guntur stated that the Petitioner could elaborate his legal standing, his constitutional impairment, and petitums more.

“Is there any relevance between the posita and petitums. Are the petitums clear? If they are not clear, the petition may be obscure,” he said.

Justice Foekh observed that the Petitioner had not included articles in the 1945 Constitution used as touchstones. He also hoped that the Petitioner can explain in more detail the contradiction between the norms petitioned and the touchstones.

“If it is not explained, the constitutional impairment will not exist, there will be no norm constitutionality issue, since it is related to the posita,” he added.

Before concluding the hearing, Justice Anwar announced that the Petitioner would have until Monday, February 5, 2024 to revise the petition after taking into account the justices’ advice.

Author       : Mimi Kartika
Editor        : Lulu Anjarsari P.
PR            : Tiara Agustina
Translator  : Yuniar Widiastuti (NL)

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

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