By Timur Abimanyu,

The Washington Post

Settlement of business disputes through international arbitration

Pertamina case study vs. Karaha Bodas Company

Private International Law is included in a group of private law. Because it involves private law,
the Private International Law also stipulates the legal relationship between parties (party) in a
contract arising from the law of the engagement. Private International Law has a broader
dimension than in a single state jurisdiction. According to S. Gautama, Private International
Law is a civil law for international relations. What is the international relationships, while its
maxims is alone the national civil law. Contract Law, as part of civil law have some principles
that are universal like the principle of freedom of contract (authonomy party), the contract
binding as law for the parties who make them, as well as agreed principles. The parties
involved in the contract or agreement whereby the contents of the agreement beyond one
country, in the event a dispute arises is necessary to stipulate in advance the ways to resolve the
dispute. One effort to resolve the dispute is with the arbitration. According to Law No. 30 of
1999 on arbitration and alternative dispute resolution generally, the meaning of arbitration is
the way is the way of settlement of a civil disputes outside the civil court based on the
arbitration agreement is made in writing by the parties to the dispute. The arbitration agreement
is defined as an agreement in the form of an arbitration clause contained in a written agreement
made by the parties before any dispute arises, or a separate arbitration agreement the parties
made after the dispute arises.

Agreements or rules that need to be agreed in arbitration that is related to choice of law (choice
of law), choice of forum (choice of jurisdiction) and choice of residence (choice of domicile).
However, although there have been penyepakatan in front of the ways of dispute resolution
such, its implementation is not easy. Complications which arise mainly from those who do not
accept the results of arbitration, among others, is related to the competence of the parties,
judicial competence, procedures (proceedings) proceedings, the disputed material, to the power
of execution of the arbitration decision. In contemporary cases in Indonesia, namely the dispute
between Pertamina and Karaha Bodas Company in connection with disputes concerning the
termination of the contract. The dispute between Pertamina against Karaha Bodas Corporation
(KBC) began with the signing of the agreement Joint Operation Contract (JOC) on November
28, 1994. On the same date PT State Electricity Company (PLN) on the one hand and
Pertamina and KBC on the other parties signed the agreement Energy Supply Contract (ESC).
Kersasama Agreement is intended to supply electricity grid by making use of geothermal power
in the Karaha Bodas, Garut, West Java. In the course of this electrification project was deferred
by the Government under Presidential Decree No. 39 of 1997 dated 20 September 1997. This
case was interesting to be lifted, because in addition to the resistance of the party who was
defeated by the Court of Arbitration, also is due to the emergence of such cases can not be
separated from measures taken by the Government of Indonesia, which is not a party to the
treaty, but the impact of these policies affect the ability of the fulfillment of contents Contract.

The foundation of theory and analysis:

2.1. Wide scope of Private International Law:
Private International Law is the overall regulatory and legal decisions which indicate
stelsel Which law applies and whether that is the law, if the relationships and events
among citizens (citizens) at a particular time points showed affinity with stelsel-stelsel
and legal rules from two or more countries, which differ in the local authority
environment. Field or the scope of private international law include choice of law +
 choice of jurisdiction + condition des estrangers + nationalite. The scope of these
concerns which law applied to menggovern a legal relationship. Then, after that need to
be well established jurisdiction or authority of judges and courts which are competent to
adjudicate including civil procedural law which will be used in court proceedings.
Furthermore, how the legal treatment of citizens is a party in a legal relationship. The
final thing that becomes the scope of international contract law is how to put the role and
interest as well as the context of the inherent sovereignty (vested in) the national
government in relation to the implementation of the international dimension of contract.
In will define more concrete, International Private Law includes ordinary everyday
relationships where two parties subjectively subject to different legal jurisdictions.
Everyday relationships include, among others, buying and selling, marriage law, lending
and borrowing, commercial transactions, joint ventures, management contracts, technical
assistant agreement, and others. International Contract Law, as part of international civil
law, on essentially a national contract law, where no foreign element. Every country has
its own legal sovereignty, and no single legal system in which all nations subjugate
themselves to it. Thus, the national legal system, including regulation and the sovereignty
of a country's government in interpreting the public interest, should not be ignored in
making a contract that international dimension. Gautama Sudargo opinion that views
international contracts as part of a national contract system has been recognized as a
doctrine. The contract contract international dimension, the determination of choice of
law (choice of law) is very important to avoid the occurrence of conflict of law, given the
parties involved, the transactions and related legal systems of different and perhaps even
contradictory, or contrary to law jurisdictions between one with other legal jurisdictions.
Even if choice of law has been established in a contract or agreement, international civil
law still leaves the fundamental issues in the proceedings of a case. This stems from
differences in qualifications between the various international civil law systems in the
world. Qualification that there are differences mainly in three major categories, namely:
a. Qualifications according to the lex Fori (ie according to the law judge)
b. Qualification according to the lex causae (the law used to resolve the issue of
international civil law bersangkuta)
c. Qualifications autonomously (Autonomen qualification), based on the "comparative
method or analytical Jurisprudence.
2.2 Platform for binding international arbitration in the Indonesian legal system

1. The scope of arbitration:

Recognition of the justice system in Indonesia will be arbitration has been held since
the colonial era. The existence of arbitration as an alternative in the settlement of civil
disputes has received formal legal recognition in Indonesia's legal system. Trail rules,
among others can be seen in Article 377 HIR, article 3 of law no. 4 of 1970 on judicial
authority, the Law no. 5 year 1968, the Supreme Court Rules (Perma) No.1 of 1990 and
the latest in Law no. 30 year 1999. According to Law No. 30 of 1999 on arbitration and
alternative dispute resolution generally, the meaning of arbitration is the way is the way
of settlement of a civil disputes outside the civil court based on the arbitration
agreement is made in writing by the parties to the dispute. The arbitration agreement is
defined as an agreement in the form of an arbitration clause contained in a written
agreement made by the parties before any dispute arises, or a separate arbitration
agreement the parties made after the dispute arises. 1958 New York Convention is the
Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the
Convention on recognition of the implementation of foreign arbitral award) who have
been accepted / acceded to by Indonesia through Presidential Decree no. 34 in 1981 is
an official recognition of international arbitration in a system of national law in
Indonesia.

The main points of material provided for in the convention include:

a. Meaning of a foreign award, the arbitration decisions are made in the territory of
another country from where the requested country where recognition and execution
of the award concerned.
b. The principle of reciprocity, meaning the application of recognition and execution of
foreign arbitral award in a country at the request of another country, can only be
applied if the country concerned has no ties earlier bilateral or multilateral relations.
c. Restrictions during trade disputes, a party to limit the conquest itself only to the
recognition and enforcement of foreign arbitration, all disputes regarding business
and trade agreements
d. Be in writing, the agreement or clause must be specified in writing
e. Arbitration has the absolute competence, meaning that once the parties make the
approval of the resolution of disputes through arbitration, since arbitration has
absolute competence to decide disputes arising from the agreement in question.
f. Decision final and binding arbitration, meaning that as a decision binding and
binding and shall be executed according to the rules of procedural law applicable in
wilayan country where the arbitral award in question applied for execution.
g. Execution is subject to the principle of ius sanguinis, or the principle of personality,
namely the execution procedure is subject to the court where the petition filed
h. Documents attached to the application for recognition of execution, include the
entire document as a basis for the issuance of arbitral award
i. The refusal of execution, may be possible if:
• Issues in dispute under the laws of the country in places where the application is
 submitted, should not be resolved by arbitration forum
• Recognition and execution of foreign arbitral award in question would cause
conflict with the public interest.
The meaning of arbitration is the choice of the parties to the contract are to:
• Arbitration is a dispute resolution mechanism chosen by the parties.
• Arbitration is a private institution (private tools) or extra-judicial or out of court
penyelaian mechanism
• The existence of arbitration is held on the principle of independence
• The source or basis of legal jurisdiction and linbgkupnya space is defined and limited
by the will of the parties themselves, in the sense that the parties can determine its
own rules of law which will apply, with the procedure or what procedural law, and
the other to agree on a way how to run arbitration .
2. Restrictions on the effectiveness of arbitration:
Options for dispute resolution through arbitration the parties intended to obtain the
settlement of disputes quickly, cheaply and effectively. The agreement of the parties
are expected not to be denied - according to the principle of pacta sunt servanda -
which when there is a dispute, to resolve it through arbitration. However, the defeated
party in the arbitration, often to challenge the arbitration decision, either on the basis
that the arbitral tribunal has no authority in deciding the material that became the
object of dispute, or the arbitrators acted in accordance with the principles of justice,
cover both side or impartiality. Furthermore, often purely a business decision in the
arbitration, was associated with suppression or interference of certain politically
powerful state which suppresses one of the parties. Based on normative rules, if the
parties agree to resolve disputes through arbitration, there is no longer the authority of
district courts to examine the substance of the dispute. However, for various reasons
and justifications that are possible, often the award once again tested by the district
court in Indonesia, or the execution was not carried out, making many question the
effectiveness of the execution of the arbitral award in the Indonesian legal system.
Things like conflict of law, error in persona, questioning the jurisdiction of the court is
legally common reasons presented by lawyers. It is often dipelesetkan, not a conflict of
law, but the conflict of lawyers.
3. Gap international law:
Public interest or public order, itself contains a very loose boundaries, multi-
interpretation and may change according to time and place. Public order is also
significant internal (internal public order) and some are related to international orders.
Internal public order are the provisions which restrict an individual only while external
public order are the rules that aim to protect the welfare state in the sense entirely. But
in practice, this is not too easily distinguished. Every country has its rules, norms and
order size is generally own. For example, in Egypt is commonplace and in accordance
 with personal conscience if someone calls for polygamy, but it is a violation of public
order, when conducted in France. Formulation or construction of law at New York's
1958 convention contains some controversy, ambiguity and contradiction in terms in
the clause-klausulanya. On the one hand, the convention asserted that as extra judicial
arbitration for settling disputes has absolute competence, but on the other hand also
opens the space to its member countries to set aside an arbitration decision when it is
deemed contrary to public interest, and foretell things that are not be contracted by a
specific state law (causa not kosher). Even if not bertentanganpun with the rules of
substantive law in a country, its execution depends on the government of the country
where the object of dispute is located. Does the public interest? Criteria of public
interest is something that is very loose and varies in each country. Even within one
country, the public interest to different understanding and meaning is in the range
dimension of time, space, place and subject are different. Therefore, Tineke Longdong
suggested that this conception of public order may be used seirit. Such a structural
sense the public interest (public policy), so can reduce the effectiveness of an
arbitration decision. In the case of one country do not recognize the outcome of an
arbitration decision and the proposition violated under the pretext of national interests,
other countries can not impose his execution in the country. Every country has its own
legal sovereignty. Most remote that can be done is a kind of collective punishment of
non-legal nature such as the boycott of goods and services flowing to and from the
country concerned, quota restrictions and other hostile actions. Withdrawn and
expansion of business issues among non-state entities to be due to factors like the state
government that is directed to collective punishment, is because it was thought that the
award is not complied with by the parties, especially the losing party is partly due to
interference or influence of the host country. Countries in this case argued by a state
responsibility to its citizens.
4. Gap national law:
If the note appears to have ambivalent attitudes in the court system in Indonesia in
order to receive a final binding force and execution have power over a decision of the
case through arbitration, particularly by international arbitration. Even according to the
Indonesian legal system, to the arbitrators themselves to put forward demands
punishment. Article 22 paragraph 1 of Law no. 30 year 1999 concerning Arbitration
and Alternative Dispute Resolution states that the arbitrator may be filed against bad-
faith claim if there is enough reason and enough authentic evidence that cast doubt that
the arbitrator will perform their duties independently and will not take sides in making
a decision. Against International arbitral award, courts of law in Indonesia to conduct
denial of recognition (denial of awards) will be the substance which has been decided
by international arbitration institutions, and also to the execution (denial of awards) to
the object of arbitration is in the legal jurisdiction of Indonesia. In article 65 of Law no.
30 of 1999 under international arbitration subtitles read: The authorities dealing with
the recognition and enforcement of international arbitration is the Central Jakarta
District Court. From understanding the article is not the only court authorized to refuse
to execute an arbitration decision, even had the authority to refuse recognition of the
material that has been decided by international arbitration institutions. Recognition of
the award holding capacity, placed in Bawan subtitles national arbitration, in article 60
that reads: arbitration decision shall be final and have a legally enforceable and binding
on the parties. On the other side in section 456 RV or the Civil Procedure Code states
that Indonesian courts will not recognize and implement the court ruling made in
another country. In other words, if about to execute an international arbitration
decision, concerned parties must file a new lawsuit in Indonesia.

Article 66 of Law no. 30 of 1999

International Arbitration Award is recognized and can be exercised only within the
territory of the Republic of Indonesia, if it meets the following requirements:
a. International Arbitration Award rendered by the arbitrator or arbitration tribunal in a
country with the Indonesian state bound to the agreement, either bilaterally or
multilaterally, on the recognition and implementation of the International Arbitration
Award;
b. International Arbitration Decision referred to in point a decision is limited to that
under Indonesian law within the scope of trade law;
c. International Arbitration Decision referred to in letter a can only be implemented in
Indonesia is limited to decisions that are not contrary to public order;
d. International Arbitration Decision can be implemented in Indonesia after obtaining
eksekuatur from the Chairman of the Central Jakarta District Court, and]
e. International Arbitration Decision referred to in letter a which involves the Republic
of Indonesia as one of the parties to the dispute, can only be implemented after
obtaining eksekuatur from the Supreme Court of the Republic of Indonesia, which
subsequently delegated to the Central Jakarta District Court. According to Article 3
of Law No. 30 in 1999 stipulating that the District Court was not authorized to
adjudicate disputes which the parties have been bound by the arbitration agreement.
M. Yahya Harahap said that the formulation of the article is ambiguous (ambiguity)
and unclear (unplain meaning). Then in article 11 paragraph 2 of Law no. 30 of 1999
provides that the District Court must reject and will not intervene in a dispute that
has been determined by arbitration, except in certain cases specified in this law.
However, if one party considers that their civil disputes are disputes bankruptcy
under the Law number 37 year 2004, then that party will see there is a gap to check
the case to the Commercial Court which is one of the district court. If someone is
declared bankrupt, it basically has happened confiscation of all his wealth, and he's
not capable anymore to engage in civil law. The entire management of their wealth
the authority was transferred to the curator. Curator is not bound by the arbitration
agreement that was made originally by the debtor bankrupt with its business partners.

One example is in case an appeal (case no. 019/K/N/1999). Among others, the
decision states that the legal effect as an extra-judicial arbitration can not get rid of
 the position and authority of the Commercial Court to resolve the petition of
insolvency or bankruptcy categorized according to Law No. 4 year 1998, although
the birth was due to the problems of insolvency debt agreements that contain
arbitration clauses. What a dynamic and flexible understanding of violations of the
general provisions, and requirements can be viewed on the kosher causa Supreme
Court decision No. 1205.K/Pdt/1990, concerns a case of sugar imported by the
Indonesian private sector from the private sector in England, where in his contract
stated that the dispute be resolved through arbitration. But when asked to be executed
in Indonesia, the Indonesian Courts argued that execution can not be implemented
because it contains non kosher causa, and violating public order. Public order is
meant is that at that time the only agency authorized to import sugar is BULOG.
Indonesian court judge ruled that the decision of other countries do not have the
holding capacity in Indonesia. Even for just about titles eksekutorial, MA
determination is prima facie only, meaning no need to do a legal assessment of the
contents of the agreement made by the parties to the dispute. Settlement of disputes
Pertamina - Karaha Bodas through international arbitration:

3.1 A brief description of Pertamina case versus Karaha Bodas Company:

The dispute between Pertamina against Karaha Bodas Corporation (KBC) began with the
signing of the agreement Joint Operation Contract (JOC) on November 28, 1994. On the
same date PT State Electricity Company (PLN) on the one hand and Pertamina and KBC
on the other parties signed the agreement Energy Supply Contract (ESC). Kersasama
Agreement is intended to supply electricity grid by making use of geothermal power in
the Karaha Bodas, Garut, West Java. In the course of this electrification project was
deferred by the Government under Presidential Decree No. 39 of 1997 dated 20
September 1997. The impact of the suspension is collaboration with the KBC, Pertamina
can not continue. KBC on 30 April 1998 filed suit to redress the Geneva arbitration in
accordance with the dispute resolution chosen by the parties in the JOC. On December
18, 2000 Arbitration Geneva made the decision for Pertamina and PLN to pay
compensation to KBC, approximately U.S. $ 261,000,000. Top award Geneva, Pertamina
is not willing to voluntarily implement it. As a remedy, Pertamina has asked a court in
Switzerland to cancel the arbitration decision. It's just that this effort did not proceed
(dismiss) because they do not pay cash deposit as required by the Swiss Federal Supreme
Court. Meanwhile, KBC has done its legal form of the petition for the implementation of
the Geneva Arbitration Award in the courts several countries in which Pertamina's assets
and goods are, except in Indonesia. On February 21, 2001, KBC filed the petition in U.S.
District Court for the Southern District of Texas to implement the Geneva Arbitration
Award. Next KBC apply the same in Singapore and Hong Kong courts. In addressing the
legal effort KBC, Pertamina to bring a legal form of rejection in the courts of execution
requested by KBC to perform executions. Pertamina's continuing legal efforts to cancel
the award of Geneva in Indonesian courts. On 14 March 2002, Pertamina officially filed
for the cancellation of the Geneva Arbitration Award to the Central Jakarta District
Court. The lawsuit was based on the provisions of article 70 of Law no. 30 year 1999 on
the terms of the cancellation of the decision of International Arbitration, which reads:
 Application for revocation may be filed against the award that has been registered in
court. The reason for the cancellation request reason mentioned in this article must be
proven by a court decision. If the court held that these reasons are proven or not proven,
then this court can be used as a basis for consideration for the judge to grant or deny the
petition. In its decision 86/PN/Jkt.Pst/2002 number 9 September 2002, the Central Jakarta
District Court eventually granted the claim of Pertamina by canceling the decision of
international arbitration, UNCITRAL, in Geneva, Switzerland. As for several reasons,
among others, the appointment of arbitrators was not done as promised and did not have
the desired arbitrator appointed by the parties under the agreement, while Pertamina was
not given proper notice regarding this arbitration and not given the opportunity to defend
himself. Council of arbitration has been misinterpreted force majeure, so it should not be
requested pertanggungjawab Pertamina for something beyond their means. In addition,
the Arbitration Tribunal deemed to have exceeded its authority because it does not use the
laws of Indonesia, the Indonesian law it is to be used by agreement of the parties,
arbitration Assembly only use their own conscience based on the consideration of ex
aequeo et bono
3.2 Comments on the case of Pertamina versus Karaha Bodas Company:
Unlike the case of sugar, as described in the previous chapter where an Indonesian court
confidently declare that there is a violation of a lawful causa and public order, in this case
that public order is not mentioned. On thing is very real, that does not excuse failure by
Pertamina to meet its contractual obligations is due to the prohibition of the sovereign
Government of Indonesia through Presidential Decree number 39 year 1997 dated 20
September 1997 concerning the postponement / review of government projects, state
enterprises, and related private with government / state owned enterprises in amar weigh
clearly stated that the Government decision was related to efforts to secure the
sustainability of the economy and the course of national development, and based on the
constitutional basis which is owned by the President. It is clear here, that interpretation,
extension and public interest and understanding meaning of kosher causa very situational
and contextual that can be widened and extended out of the jurisdiction and enter the
territory of political considerations, economic and others. Indeed, in international civil
law, there is a principle that states if the use of foreign law means a violation of human
joints joints so than national law, judges in matters exceptions, foreign law can override
this. But the waiver must be in such a way the reason, so as not to slip into narrow pride
in national law, which by Sudargo Gautam termed judicial chauvinism. On the other
hand, if a specific national law excluded, and vice versa to Adopt a certain part of
international law for the sake of momentary and contextual, this can be categorized as
smuggling law. Case Karaha Bodas Company is a case of international civil law in the
field of international contract law interesting. Unfortunately the decision of the Court in
Indonesia on the cancellation of the case is not comprehensive in terms of legal.
According Hikmahanto Juwana, in the International Arbitration Award case can not be
undone by a national court. Even if national courts do cancellation, courts in other
countries are requested to implement the arbitration decision can not be bound, even
ignored.
 Some things to note Hikmahanto are:
a. Basic Authority Courts in Indonesia:
Hikmahanto distinguish between the cancellation of the rejection decision of the
arbitration as follows: On the canceled arbitsrase verdict, the court may request that
the parties to repeat the process of arbitration. Arbitral award is canceled, will deny
(though never made) the decision of the arbitration. In this case the Court was not
authorized to examine the principal case, but is limited to checking the validity of the
terms of the arbitration decision-making procedures, such as the selection of the
arbitrators and law enforcement are selected. In the cancellation of the arbitration court
decision is considered contrary to the principle of freedom of contract. While the
rejection of the arbitration decision does not mean that the court deny the decision, but
no failure by the arbitral award was conducted in the jurisdiction of the courts that
have rejected it. If it turns out in other countries there are assets of the defeated party,
the party won still able to request execution in the state court. According Hikmahanto,
the authority of the District Court in Indonesia to prosecute cases of KBC in Indonesia,
should be questioned. In the process of arbitration at least three types of laws, the laws
of the material (substantive law), legal binding event (governing / curial law) and laws
of a country's underlying dispute settlement (lex arbitri). Of the three types of law is
not one jenispun which authorizes the Court of Indonesia to try the case in question. In
the case of Karaha Bodas Company (KBC), which used the law is the law of
Switzerland (Switzerland).
b. Pertamina's legal efforts made, the decision Geneva arbitration, Pertamina is not
willing to voluntarily implement it. As a remedy, Pertamina has asked a court in
Switzerland to cancel the arbitration decision. It's just that this effort did not proceed
(dismiss) because they do not pay cash deposit as required by the Swiss Federal
Supreme Court. Hikmahanto remedy through the court believes that is the genuine
Swiss. Swiss Court is a court of competent jurisdiction to cancel the arbitration
decision based on those two lalasan Geneva. Pertaman, Pertamina and KBC have
determined the seat of arbitration in the JOC in Geneva, and the second award made in
Geneva in Switzerland. As the losing party should be questioned why it Pertamina
register Geneva arbitration in Indonesia. If the intention is to make the cancellation to
meet the principle of registration sesujai Article 71 of Law 30 of 1999, and the reason
can be accepted by the panel of judges, the establishment of such incorrect. Authority
District Court in Indonesia to cancel the arbitration decision is limited to the arbitral
award made in Indonesia. Against a foreign award, there is only limited authority in
the context of the implementation (execution) of a decision. Later, it Hikmahanto
opinion above seems consistent with the Supreme Court. Supreme Court overturned
the decision of the Central Jakarta District Court. Edward Baldwin et al noted, in the
end the decision issued by the Central Jakarta District Court mentioned above, be
revoked by the Supreme Court on the grounds that the Central Jakarta district court
was not authorized to examine this matter, and also not have the authority to decide
claims of KBC. In our opinion, because the root problem is from the decree or
 government settings that caused Pertamina can not meet contractual obligations, so if
there are legal consequences and a claim or loss thereof, should it be taken over by the
Government. Following the provisions of the Government should not bring harm to
oneself. It is in construction law to dianalogkan with common adage in civil law in
which a subordinate not to blame from the consequences of his actions are simply
carrying out orders which assigned him. This is also consistent with the view of law in
the Black Law which states quicunque jussu judicis fecerit allquid non videtur Dolo
malo fecisse, qula parere necesse est.
Conclusion:

Of exposure and discussion in the previous section, we can conclude the

following:
a. Private International Law is required when there are legal relationships between two
parties who are subject to different legal jurisdictions,
b. The field of Private International Law covers setting family relationship (marriage,
divorce, inheritance), trade relations, joint venture, management contract.
c. International arbitration is one method chosen for the settlement of disputes in
contractual relations dimension of international civil
d. Agreement or the rules of the game need to be agreed upon in an arbitration
concerning the choice of law (choice of law), choice of forum (choice of
jurisdiction) and choice of residence (choice of domicile)
e. The principle of public order in the principle of international arbitration, the use and
penerapannuya must remain within the context of the objectives of the parties as
outlined in the contract.
f. Case Pertamina versus Karaha Bodas Company, should remain dikontes and tested
in a legal perspective. The losses that arise on the one hand due to government
policy, should it be completed and ditanggungjawabkan by the Government. By
Sampe Purba

==========================
Illustration By Timur Abimanyu, SH.MH
The court of arbitration is that the incidence of such cases can not be separated from measures
taken by the Government which is not a party to the treaty, but the impact of these policies
affect the ability of the fulfillment of the contents of the Contract. Must look to the foundation
of theory and analysis as the scope of Private International Law, there are differences in
qualifications, namely: a. Qualifications according to the lex Fori (ie according to the law
judge), b. Qualification according to the lex causae (the law used to resolve the issue of
international civil law bersangkuta) and c. Qualifications autonomously (Autonomen
qualification), based on the "comparative method or analytical Jurisprudence. Not loosed on the
basis of binding international arbitration in the Indonesian legal system.On the basis of this
thought then the meaning of arbitration is the choice of the parties to the contract are to:
Arbitration is a dispute resolution mechanism chosen by the parties, arbitration is a private
institution (private tools) or extra-judicial or out of court penyelaian mechanism, the existence
of arbitration is the principle of independence and resources of its jurisdiction or legal basis and
linbgkupnya space is defined and limited by the will of the parties themselves, in the sense that
the parties can determine its own rules of law which will apply, with the procedure or what
procedural law, nor can agree on Another way how the arbitration is run by the limitation on
the effectiveness of arbitration. And how Gap internasionaln law on national legal loophole.
International arbitration for dispute settlement can be as effective as possible with no disregard
national law.
Daftar Pustaka :
Emmy Yuhassaire, ed. , Interaksi antara arbitrase dan proses kepailitan – Prosiding, Pusat
Kajian Hukum, Jakarta, 2005
——————, Transaksi Perdagangan Internasional – Prosiding, Pusat Pengkajian Hukum,
Jakarta, 2006
Huala Adolf, Dasar-Dasar Hukum Kontrak Internasional, Refika Aditama, Bandung, 2007
Sudargo Gautama, Pengantar Hukum Perdata Internasional Indonesia, Bina Cipta, Bandung,
1987
M. Yahya Harahap, Arbitrase, Sinar Grafika, Jakarta, 2006
Tineke Louise Tuegeh Longdong, Asas ketertiban Umum & Konvensi New York 1958, PT
Citra Aditya Bakti Bandung , 1998
Jurnal
Jurnal Hukum Bisnis, Volume 21 Oktober – November .2002
Undang-undang
Undang-undang no. 30 tahun 1999 tentang arbitrase dan alternatif penyelesaian sengketa
Undang-undang no. 37 tahun 2004 tentang Kepailitan dan Penundaan Kewajiban Pembayaran
Utang
Kamus
Black’s Law dictionary, fifth ed., West Publishing Co., USA, 1979

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