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By Timur Abimanyu, SH.

MH

ARBITRATION AS ALTERNATIVE CASE


UNDER THE LAW NUMBER
30 YEAR 1999

Many cases of disputes both civil and religious civil case / syari 'ah who settled in
the General Court and Court of Religion / syari' ah, this is because the implementation
of the judicial authorities handed over to the judiciary by referring to Law No. 14 of
1970 on Basic Provisions Powers Justice / that now because it is a judicial one roof
under which is governed by the Supreme Court Act. 4 Year 2004 on Judicial Power and
the Law No. 5 of 2005 on the Supreme Court. As is known that Law No. 14 of 1970 on
Basic Provisions for Judicial Authority is the parent and the general framework laid the
foundations and principles of environmental justice as well as guidelines for public
justice, religious courts, military courts and state administrative courts, each of which
regulated in separate laws. In the explanation of Article 3 paragraph (1) of Act No. 14
of 1970 mentioned, among others, that settling disputes out of court on the basis of
peace or through arbitration still allowed, but the decision of the arbitrator has the
power eksekutorial only after obtaining permission or the command to be executed
(exccutoir) from the court.
During this examination used as the basis for arbitration in Indonesia is Article
615 through Article 651 Reviewed Inland Regulation Civil Procedure Code (Reglement
op de Rechtsvdering, Staatblad 1847:52) and Article 377 Indonesia HE Reviewed
Inland Regulation updated (Het Reglement Herziene Indonesisch, Staatblad 1941:44)
and Reviewed Inland Regulation Article 705 of events to areas outside Java and
Madura (Rechtsreglement Builengewesten, Staatblad 1927:227). Arbitration institution
has advantages compared with the judiciary, where the advantages are:a. confidentiality
of the parties dispute, b. unavoidable delays caused by procedural and administrative
terms; c.parties may choose arbitrators which he believed to have knowledge,
experience and background that enough of the issues in dispute, honest and fair, d.party
may determine the legal options to resolve the problem and the process and place of the
arbitration, and arbitrators are e.decisions binding on the parties and with the procedure
(procedure) is simple or can be implemented immediately.
But the statement is less relevant, because many in certain countries the judicial
process can be faster than the arbitration process, where the arbitration is an alternative
option and one of the advantages of arbitration to the courts is the nature of
anonymizing because his decision was not published, and the settlement of disputes
through arbitration still more or very desirable than litigation, especially for business
contracts is international. In accordance with the development of business and traffic
growth in trade both nationally and internationally as well as the development of law in
general, the rules contained in the Reviewed Inland Regulation Civil Procedure Code
(Reglement op de Recthvordering) are used as guidelines for arbitration has been
deemed no longer appropriate, so there needs to be adjustments because of international
trade arrangements is already a requirement sine qua non condotio while it is not
regulated in the event Reviewed Inland Regulation Civil Code (Reglement op de
Recthvordering). Starting from these conditions, substantial changes to the Reviewed
Inland Regulation Civil Procedure Code (Reglement op de Recthvordering)
philosophically as well as substantive was time to be implemented.
Arbitration is governed by law No. 30 of 1999 is a way of solving a dispute
outside the civil court based on the written agreement of the parties to the dispute, but
not all disputes can be resolved through arbitration, but only a dispute about rights
which by law is fully controlled by the parties to the dispute on the basis of their
agreement / both sides .. Provision that prohibits the presence of women as an arbitrator
referred to in Article 617 paragraph (2) Reviewed Inland Regulation Civil Procedure
Code (Reglement op de Recthvordering) is already considered no longer relevant to the
development of time in the era of globalization which fully recognize women's equal
rights with men's rights. Towards alternative dispute resolution (provided for in Chapter
II) by the way of deliberation of the parties to the dispute, alternative dispute resolution
(alternative dispute resolution or ADR) is an institution or a difference of opinion the
settlement of disputes through procedures agreed by the parties, the settlement outside
the court by way of consultation, negotiation, mediation, conciliation or expert
assessments, while in chapter III is to provide an overview of the specific terms and
conditions that must be met for the arbitration and the terms of appointment of
arbitrators as well as regulating the right to refuse from the parties to the dispute and in
chapter IV set procedure for proceedings before the arbitral tribunal and the possibility
for arbitrators to take a decision provisionil or other interlocutory including setting
sequestration, ordered custody of goods, or selling goods that have been damaged and
to hear testimony of witnesses and expert witnesses, while in chapter V set other
conditions prevailing on award which daiatur by Law no. 30 of 1999. In chapter V is to
regulate the possibility of a dispute regarding the authority of arbitrators, the
implementation of national and international award and rejecting the request to order
the implementation of the award by the Chief District Court in the first and last, and
Chairman of the District Court did not examine the reasons or considerations of the
arbitration decision.
Settings of the Act Bo. 30 of 1999 is to keep from the settlement of disputes
through arbitration into a protracted, in running the formal law is intact, then the Act
contains provisions on the tasks of national and international arbitration, where in
Chapter VI regulates the implementation of the decision at once in one package, so that
the Law can be operationalized through the decisions, both involving issues of national
and international arbitration, which by law can be justified.
Regarding the cancellation of arbitration decision (chapter VII), would be
possible if there are a few things: a. letter or document filed in the investigation,
acknowledged after the verdict rendered false or otherwise fraudulent, b. after the
decision was taken was found a document that is determining who the opponent or
deliberately hidden c. decision is taken from the results of deception committed by one
party to a dispute investigation. On request the cancellation of the arbitration decision
filed with the Chief District Court against the decision of the District Court and can
only be filed notice of appeal to the Supreme Court which decided in the first and last.
On The award is considered ended (provided for in chapter VIII), when the task
ended because the arbitrator arbitrator duty period has past or the two sides agreed to
withdraw the appointment of the arbitrator or because of the death of either party,
which may lead to a task that has been given to the arbitrators ends. Regarding the costs
of arbitration (under chapter IX), which is determined by the arbitrator, where in
chapter X is the set of transition provisions of the disputes that have been filed but not
yet processed, the dispute is in the process or that have been decided upon and have
permanent legal magnitude.
Chapter XI arrangement due to the enactment of Law No. 30 of 1999, Article 615
through Article 651Reglemen event Civil Code (Reglement op de Rechtsvordering,
Staatblad 1847:52) Article 377 Reviewed Inland Regulation Indonesia Yang Updated
(Hertziene Indonesisch Het Reglement, Staatblad 1941: 44) and Article 705 Reviewed
Inland Regulation Java Event To Countryside and Madura (Recthtsregment
Builengewesten, Staatblad 1927:227) declared null and void.
Legal Foundation :
1. Article 5 paragraph (1) and Article 20 paragraph (1) of the 1945 Constitution;
2. Law number 14 year 1970 on Conditions - Basic Principles of Judicial Power (State
Gazette of 1970 number 74, Supplementary State Gazette number 2951);
3. Act. 4 of 2004 on Judicial Power.
4. Act. 5 of 2005 on the Supreme Court.
Arbitration is a way of settlement of a civil disputes outside the civil court based
on the arbitration agreement made in writing by the parties to the dispute, which the
parties are subject to the laws, both civil and public law, because of an agreement in the
form of the arbitration clause contained in an agreement the parties in writing made
before a dispute, or a separate arbitration agreement made by the parties after a dispute,
which can be resolved through the district court ruling didaearh including respondent
residence, where the applicant is a party to apply for settlement of disputes through
arbitration, with the help of an arbitrator or more selected by the parties or appointed by
the district court or arbitration body, to make a decision regarding a particular dispute
submitted its resolution through arbitration;
Thus the Arbitration Institute is a body elected by the parties to the dispute to
make a decision regarding a particular dispute, the agency also can provide a binding
opinion on a particular legal relationship in the case before any dispute arises, while the
international award is a decision imposed by a arbitration institution or individual
arbitrator outside the jurisdiction of Indonesia, or decision of an arbitration institution
or individual arbitrator RI legally regarded as an international arbitration decision, there
are also alternative dispute resolution of the dispute settlement institution or a
difference of opinion through procedures agreed by the parties, the settlement outside
the court by way of consultation, negotiation, conciliation or expert assessment.
Regarding alternative dispute resolution provided for in Article 6 of Law No. 30
of 1999 namely: (1). A civil dispute or difference of opinion can be resolved by the
parties through alternative dispute resolution didasrkan in good faith to the exclusion of
a litigation settlement in pengadialan country, (2). Settlement of disputes or differences
of opinion through alternative dispute resolution referred to in paragraph (1)
diselesaiakn in direct meetings by the parties within a period of 14 (fourteen) days and
the results are set forth in a written agreement, (3). In the event of disputes or
differences of opinion as referred to in paragraph (2) no can be resolved, then the above
written agreement of the parties, dispute or difference of opinion resolved through the
help of one or more expert advisor or through a mediator, (4). If the parties are in no
later than 14 days with the help of one or more experts or advisers through a mediator
failed to reach an agreement, or mediators failed to bring both parties, the parties may
contact an institution of arbitration or alternative dispute resolution institution to
appoint a mediator, (5). After the appointment of a mediator by the institution of
alternative dispute resolution, dala time no later than 7 (seven) days of mediation
efforts should be started, (6). Enterprises settlement of disputes or differences of
opinion through a mediator as referred to in subsection (5) to uphold the confidentiality,
within a period of 30 (thirty) days have reached an agreement in written form signed by
all parties concerned, (7). Understanding the settlement of disputes or differences of
opinion in writing, is final and binding on the parties to be implemented in good faith
and must be registered in the District Court within a period of 30 (thirty) days
Agreement's signing, (8),. Agreement dispute or difference pendapatsebagaimana
diamaksud in paragraph (seven) must be completed no later than within 30 (thirty) days
from signing, and (nine) If the peace efforts referred to in paragraph (1) up to
subsection (6) can not be achieved, the parties on the basis of a written agreement in
writing to submit the business settlement through arbitration institution or ad-hoc
arbitration.
The scope of arbitration is to include disputes of the parties, the terms of
arbitration, appointment of arbitrators and the right to refuse, in which the parties may
agree to a dispute that occurred or will occur between them to be resolved through
arbitration and in the case of the emergence of a dispute, then the applicant must notify
the registered letter, telegram, telex, fax, e-mail or to book an expedition to the
defendant that the terms of arbitration conducted by the applicant or the respondent
applies for the purpose of holding the settlement of disputes through arbitration, on the
basis of the perjnjian held by the parties regarding the number of arbitrators, but if no
such agreement was ever held, the applicant may propose regarding the desired number
of arbitrators in an odd number, then the agreement has been approved to be made in a
written agreement signed by both parties, if the parties can sign a written agreement,
the agreement writing must be made in the form of notarial deed.
Which is the intent of the written agreement shall contain the following complete
identity problem, because if the written agreement does not contain these requirements
will result in null and void, but there are exceptions, where an arbitration agreement
does not become void when: one party a.meninggalnya , b. bankruptcy of either party,
c.novasi, d. insolvency by either party, e. inheritance, f. enactment of the terms of the
abolishment of the engagement principal, g. when the implementation of the agreement
dialihtugaskan third parties with the consent of the parties conducting arbitrse
agreement, and h. termination or cancellation of the principal agreement.
If you already have a written arbitration agreement negate the rights of the parties
to submit the settlement of disputes or differences of opinion contained in the contract
to the district court, which the courts must reject and will not intervene in a dispute that
has been determined by arbitration, except in the case - certain matters set forth in the
law No. 30 of year 1999.
If the parties agree will be settled in arbitration, then under Article 12, shall be
appointed or appointed an arbitrator who meets the following requirements: a.cakap
legal action, b. lowest 35-year-old, has a family relationship c.tidak blood or marriage
up to second degree with one of the parties to the dispute, d.tidak have a financial
interest or other interest on the award, and e. has the experience and actively in their
field to master at least 15 years (Judges, prosecutors, clerks and other court officials can
not be appointed or appointed as arbitrator). If the parties can not reach agreement on
the selection of arbitrators or no provision was made concerning the appointment of
arbitrators, the Chairman of the district court appointed arbitrator or arbitration tribunal
(Article 13), then to avoid in practice will occur stalemate need something in the
arbitration requirement should be regulated well and carefully about the event that must
be taken in the appointment of an arbitrator.
If in ad hoc arbitration there is disagreement in the appointment of one or several
arbitrators, the parties may apply to the Chairman of the district court to appoint an
arbitrator or more within the framework of dispute resolution the parties, after the
appointment of the Chairman of the District Court olek agreed by the parties that the
dispute arising will be examined and decided by a single arbitrator, the parties are
obliged to reach an agreement on the appointment of a sole arbitrator (notice as
required by law) and if within a period of 14 days after the defendant accepted the
proposal the applicant as referred to in paragraph ( 2), the parties failed to specify a
single arbitrator at the request of either party, chairman of the district court can appoint
a sole arbitrator.
In case the Chairman of the district court will appoint a sole arbitrator under the
list of names submitted by the parties, or obtained from an arbitration organization or
institution referred to in article 34, taking into account both the recommendations and
objections raised by the party against that person / that will menajdi arbitrator
tersebut.Terdapatnya an appointment of two arbitrators by the parties which gives
authority to the two arbitrators, to select and appoint the third arbitrator, in which the
third arbitrator who will be appointed as chairman of the arbitration tribunal.
(notification no later than 30 days stipulated in Article 8 paragraph (1)), If the two
arbitrators fail appoint the third arbitrator within a period of 14 days, then the chairman
of the district court can appoint a third arbitrator can not be proposed cancellation
efforts.
On the basis of the appointment of one / some of arbitrators by the parties in
writing and receipt of such designation, then a / some arbitrator in writing, with the
parties and the arbitrator appointed is determined in a civil agreement, which is charged
against an arbitrator or the arbitrators shall give its decision honestly, fairly, and in
accordance with applicable regulations and the parties must accept the verdict is final
and binding as has been agreed jointly by the parties.
Against certain things when an arbitrator has accepted the appointment or
removal of states that have been agreed, then the question is not able to withdraw,
except upon consent of the parties and shall submit a written application to the parties,
if the parties can agree to a withdrawal request as referred to in paragraph (2), it is
concerned, can be exempted from duties as an arbitrator with the determination by the
head of the district court (arbitrator / arbitration panel without valid reason does not
make a decision within the time specified, then the arbitrator may be punished for
changing costs and losses resulting from such delay to the parties) and the arbitrators /
arbitral tribunal can not bear any legal responsibility for any actions taken during the
trial process to perform its function as an arbitrator or arbitration panel, unless it can
prove the existence of bad faith from the actions of such arbitrator .
Against a / the arbitrators may be prosecuted if there is sufficient reason for bad
faith and authentic evidence and cast doubt that the arbitrator will not do its job freely,
because it will take sides in the decision-making and found the existence of family
relationships, finances or work with one of the parties or their proxies ( provided for in
Article 22 through Article 26).
The implementation of the applicable proceedings dihadapam Assembly is an
examination of the dispute by the arbitrator / arbitration panel is conducted in private,
in the arbitration process by using the Indonesian language, except with the approval of
the arbitrator / arbitration panel if the parties wish to choose another language to be
used in the arbitration process.
In the process of arbitration where the parties have the same rights and obligations
in their opinions and can be represented by the attorney with a special power of
attorney, nor against any third party outside of the arbitration agreement to participate
and join in the process of settlement of disputes through arbitration, if there is an
element related interests and keturutsertaannya and must be agreed by the parties to the
dispute, and shall be approved by the arbitrator / or arbitration panel that examined the
dispute in question (provided for in Article 26 through Article 48 of Law. No. 30 of
1999).
In the implementation process of arbitration, the parties may produce witnesses
and expert witnesses on the orders of the arbitrator / arbitration panel or at the request
of the parties to hear the information and summons and travel expenses of the witness
or expert witness be borne by the parties of the request (with the mandatory oath.)
Concerning the description of one or more expert witnesses to provide written
information about a specific issue related to the main dispute, which is then the
arbitrator or arbitration panel forward a copy of the expert witness is to the parties to
respond to in writing by the parties to the dispute, if there are things that are not clear,
then at the request of the parties concerned, the relevant expert witness testimony can
be heard in advance of the arbitral tribunal to be attended to by the parties or their
proxies (the activities in the examination and the arbitral tribunal made an official
report by the secretary of the examination is governed by Article 49 to the Article 51 of
Law no. 30 of 1999).
Against the opinion and decision of Arbitration, which the parties in an agreement
are entitled to request the binding opinion of the arbitration body of the legal
relationship of an agreement and against opinions that are binding, can not be done
through all means of resistance. And if the dispute investigation has been completed,
the investigation was closed immediately and set date for a hearing to say the award is
based on legal provisions, or based on fairness and decency and of the decision within a
period of 30 days after close examination, as well as the latest 14 days after the decision
is received by the parties may apply to the arbitrator / arbitration panel to make
corrections to an administrative error or that it reduces the matter claimed the decision
(provided for in Article 52 to Article 58 of Law no. 30 of 1999).
On cancellation of the award is at the request or request cancellation if the
decision is alleged to contain the following elements: a. letter or document filed in the
examination, after the verdict was dropped, false otherwise recognized false atu, b. after
the decision was taken was found a prescriptive document, which was hidden by the
opposing party, and c. decision is taken from the results of deception committed by one
party to a dispute investigation, with proposed in writing within a period of 30 days
from the day of submission and registration of the arbitral award to the district court
clerk, addressed to the chairman to the chairman of the district court and if the petition
is granted, then the chairman of the district court to determine further due to
cancellation in whole or in part the decision of the arbitration. And against a court
decision the district court can be lodged an appeal to the supreme court, which will
decide in the first and last in a period of 30 days after the notice of appeal is received by
the supreme court (diatus in Article 70 through Article 72).
Duties of arbitrators shall terminate if: a. decision regarding the dispute has been
taken, b. period of time specified in the arbitration agreement or extended by the parties
after the past, or c. the parties agreed to withdraw the appointment of the arbitrator. Can
where duty ended in conflict arbitrators can also be caused by: 1. since the death of one
of the parties does not result in a task that has been given to the arbitrator end, 2 the
duration of the task of arbitrators referred to in Article 48 be postponed later than 60 of
Law No.. 30 of 1999 or since the death of either party.
Against arbitrators who died, will be granted the demands of bad faith or
termination of one or more arbitrators, which the parties shall appoint a replacement
arbitrator and agreed to appoint a replacement arbitrator, the chairman of the district
court at the request of interested parties, appoint one or more replacement arbitrator
who charge continue the dispute in question based on the final conclusions that have
held them. And towards the costs of arbitration, the arbitrator determines the cost of
arbitration, including: a.honorarium arbitrator, b.biaya travel and other expenses
incurred by the arbitrator, c.biaya witnesses and expert witnesses necessary or in the
examination of disputes, and d. administrative costs. And towards the cost of arbitration
will be borne by the losing side in the case while the prosecution is only granted in part,
then the arbitration fee is charged to the parties in a balanced / joint responsibility
equally.
Analysis of internal factors on the process of national arbitration and international
arbitration is to see to the instrumental of Law no. 30 of 1999, where the law is a
fundamental policy of the mediation process of national and international mediation are
based by Law No. 30 of 1999 which did perberlakukan policy which is as an arbitration
institution in performing the arbitration process with national and international
arbitration based on the determination or decision of this Court in the territory of the
Central Jakarta District Court of law both in the application for arbitration proceedings
or until the arbitration decision ditetakan. Particularly against international mediation
process, against which the award must be based upon the determination and registered
with the district court center, which is then submitted to the court's realization
diwalayah legal dispute process occurs. (In the actual application execution attachment
or execution pelaksnaan).
Analysis of external factors on the process of national arbitration and international
arbitration is that based on the basic policy and policy implementation to the process of
settlement of disputes by arbitration, which is a settlement out of court, to dispute about
rights, will tertapi although the dispute settlement process diselesaian outside the court,
nonetheless of processes such as agreement, application / registration, request the
arbitrator to the decisions of the arbitration shall be through the judiciary, in this case
the Central Jakarta District Court, especially concerning the confiscation of execution
until the application execution that implement the arbitration decision.
So a quick analysis of the author based on analysis of internal factors and external
factors, based upon the basic policy and its policy of implementation of Law No. 30 of
1999.

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