The Indonesian Notary Association for East Java Province, in collaboration with the Indonesian National Arbitration Board (BANI) Surabaya held a Full Day Seminar on “Implications of Arbitration Clauses in Notary Deeds and Contract Law in General with Examples of the Consequences”. The seminar, held offline on Thursday (17/11/2022) at the Dyandra Convention Center, also celebrated the 41st anniversary of BANI.
One of the speakers at the seminar that day was a Professor at the Faculty of Law, Universitas Airlangga (FH UNAIR), Prof. Dr. Y. Sogar Simamora, S.H., M.Hum., FCBArb. Prof. Sogar explained the material “Implications of the Selection of the Arbitration Forum on the Indonesian National Arbitration Board in Contracts”. Prof. Sogar said that resolving disputes through arbitration forums such as BANI has many advantages, namely costs and time that are more measurable, an arbitrator who is free to be determined by the parties to the dispute, is closed, prioritizes a win-win solution, and the decision is final and binding.
“BANI as an arbitration forum is the oldest arbitration institution in Indonesia which was founded in 1977. BANI handles contract disputes domestically and internationally in various sectors such as trade, procurement of goods/services, construction, banking, insurance, maritime, telecommunication, and others. ,” explained the BANI Surabaya Advisor.
Prof. Sogar continued by explaining the arbitration clause and arbitration agreement. Based on Article 1 point 3 of Law Number 30 of 1999, an arbitration agreement is an agreement in the form of an arbitration clause contained in a written agreement made by the parties before a dispute arises or a separate arbitration agreement made by the parties after a dispute arises. The provisions of Article 1 point 3 of Law Number 30 of 1999 contain two norms: an arbitration clause (pactum de compromittendo) and an arbitration agreement (deed of compromise).
“Arbitration clause is an agreement in which the parties agree to resolve disputes that may arise through an arbitration forum. Arbitration clauses can be created in two ways. First, it is stated in the principal agreement or separate clause. Second, a separate agreement is made with a record of the agreement made and signed before the dispute occurred,” said Prof. Sogar.
Meanwhile, the arbitration agreement is made after the dispute arises and is stated in a separate agreement separate from the main agreement. The arbitration agreement contains the disputed issues, the names and addresses of the parties, the agreed arbitration forum or institution, the names and addresses of the arbitrators, and the number of arbitrators (ad hoc).
Prof. Sogar emphasized that there are legal consequences if the parties decide to use arbitration as an alternative to resolving disputes that occur. He said that the district court was no longer authorized to adjudicate disputes between the parties after an arbitration agreement bound the parties. This also applies even if the basis for the lawsuit is an unlawful act as stipulated in Article 1365 Burgerlijk Wetboek.
“The procedural law that applies in the arbitration agreement is HIR/RBG. Especially for arbitration bodies such as BANI, the 2022 BANI Arbitration Rules and Procedures also apply,” he said.
The 2022 BANI Rules and Procedures regulate details regarding procedural law in examining cases within BANI. It also stipulates provisions regarding the release of liability in which BANI cannot be held liable for any actions related to the arbitration implementation based on the 2022 BANI Rules and Procedures.
