Q & A – Part 1

Q: Do District Court had authorization to take on dispute which has been bound by arbitration agreement through Indonesia National Arbitration Centre (BANI)?

A: If in the agreement has been agreed that any dispute arise will be settled through arbitration conducted by Indonesia National Arbitration Centre (BANI) or other recognized arbitration entity based on Article 1 point 9 Law No. 30 of 1999 (Arbitration Law), referring to the provision of Article 3 Arbitration Law then District Court shall not have authority to take on the dispute.

Moreover, Article 11 of Arbitration Law regulate that parties that has agreed to settle their differences through arbitration will caused both parties to lose their rights to file dispute resolution to District Court. Furthermore, District Court according to Article 11 paragraph 2 must reject any dispute settlement, which has been determined through arbitration.

In conclusion, in the event in the agreement has been agreed to settle their differences through arbitration, then based on its competence District Court doesn’t have jurisdiction to take on the settlement process. MAd/HES

Q: Who can be appointed to become an arbitrator in Indonesia National Arbitration Centre (BANI)? How far is Arbitrator’s responsibility when taking on arbitration case?

A: Pursuant to Law No. 30 of 1999 (Arbitration Law) to be appointed as an arbitrator must be one or more individuals chosen by the disputed party or appointed by District Court or arbitration institute to decide on a certain matter which are settled through arbitration. In addition, based on Article 12 of the Arbitration Law and Article 10 paragraph 3 BANI Rules, it is stated that to be appointed as an arbitrator one shall not act as a judge, prosecutor, clerk of court or other government official.

On commencing its duty as an arbitrator on arbitration process, BANI Rules has yet to provide specific regulation, however pursuant to Article 21 Arbitration Law stipulates that the arbitrator or arbitration tribunal may not be held legally responsible for any action taken during the proceedings to carry out the function of arbitrator or arbitration tribunal unless it
is proved that there was bad faith in the action. MAd/HES

Q: What is Anton Piller Order? Is it possible to enforce Anton Piller Order on the Indonesia National Arbitration Centre (BANI)?

A: Anton Piller Order is one of the types of injunction, commonly used by the Anglo-Saxon country. Anton Piller Order originated from the Anton Piller KG v Manufacturing Processes Ltd. Case, which resulted claimant without giving notification to the defendant (Ex Parte), conduct inspection on the property of defendant in which the claimant is authorized to conduct seizure, discovery or copy of evidence related to the case.

Based on the above explanation can be informed that based on Supreme Court Regulation No. 5 of 2012 only dispute of intellectual property rights through the jurisdiction of Commercial Court that recognize the submission of injunction. However, even though the practice did not recognize the concept of injunction, on the elucidation of Law No. 30 of 1999 (Arbitration Law), the arbitrator at the request of one of the parties may make a provisional award or other interlocutory decision including decreeing a security attachment, ordering the deposit of goods or the sale of perishable goods and also to hear witness and expert statement. MAd/HES