After studying and reviewing a thought-provoking ebook on the selection of regulation in worldwide business contracts in Indonesia final yr, I made a decision to delve additional into the topic by selecting up a ebook on Indonesian personal worldwide regulation. The ebook, titled Indonesian Non-public Worldwide Legislation, is a part of the celebrated Hart sequence on Non-public Worldwide Legislation in Asia. Authored by Dr. Afifah Kusumadara, with contributions from a crew of Indonesian students (hereafter known as “the authors”), this work was revealed throughout the COVID-19 pandemic. Spanning 226 pages throughout six chapters, the ebook goals to be the main English-language textual content on personal worldwide regulation in Indonesia. This assessment supplies an outline of its content material.
Indonesia, a civil regulation nation, has authorized rules influenced by Dutch conventional personal worldwide regulation, owing to its colonial historical past. Nonetheless, the ebook doesn’t adhere strictly to the summary type typical of civil regulation texts; as an alternative, it provides useful explanations of related case regulation.
Chapter 1 discusses the scope of Indonesian personal worldwide regulation, noting that it’s considerably restricted, masking points such because the standing of individuals, household issues, actual property, formalities, worldwide arbitration, alternative of arbitral tribunals, and enforcement of international arbitral awards. The authors spotlight that the sources of Indonesian personal worldwide regulation embody laws, customary regulation, case regulation, worldwide treaties, and doctrine. Nonetheless, Indonesia doesn’t have a complete code on personal worldwide regulation. The chapter additionally addresses preliminary issues like characterisation, incidental questions, and renvoi; connecting components corresponding to nationality, domicile, and residence; in addition to points associated to substance and process, proof of international regulation, proof in worldwide disputes, public coverage, and necessary guidelines.
Chapter 2 covers jurisdiction in personam, dividing the dialogue into normal and particular guidelines. The first rule for jurisdiction in personam in Indonesia is to sue the defendant of their house court docket. For normal jurisdiction, the precept of discussion board non conveniens is recognised in Indonesia’s judicial follow, although it has not been codified. Equally, the doctrine of lis alibi pendens is a part of Indonesian civil process, although hardly ever utilized in instances pending in international courts between the identical events and subject material. Anti-suit injunctions have been issued by Indonesian courts, albeit not codified, often to guard Indonesia’s judicial pursuits and people of its residents.
Written alternative of court docket agreements are permitted in Indonesia, although the nation’s civil process guidelines don’t particularly deal with international alternative of court docket agreements. In follow, a alternative of court docket settlement is prone to be enforced if it designates Indonesian courts and the defendant resides in Indonesia. Indonesian judges typically conflate alternative of court docket agreements with alternative of regulation, main them to say no jurisdiction when there may be an categorical alternative of international regulation.
Service of court docket processes, each inside and outdoors the jurisdiction, is allowed underneath Indonesia’s civil process guidelines. Nonetheless, the authors of the ebook notice that Indonesian regulation doesn’t explicitly deal with the service of international proceedings inside Indonesia, and so they suggest that Indonesia accede to the 1965 Hague Service Conference to deal with this hole.
The dialogue then strikes to particular guidelines governing particular contracts, torts, unjust enrichment, trusts and charitable foundations, property regulation (together with immovable property, intangible property, and succession), mental property, household regulation (masking marriage, divorce, nullity, separation, and little one welfare), company regulation, insolvency, private chapter, and competitors regulation. Notably, this construction is essentially mirrored in Chapters 3 and 4, which concentrate on alternative of regulation and the popularity and enforcement of international judgments.
Following this, Chapter 2 delves into jurisdiction over delivery claims.
Lastly, Chapter 2 addresses immunities from jurisdiction. The authors notice that the Indonesian authorities advocates for the doctrine of absolute immunity to guard the state’s pursuits in international courts. Nonetheless, Indonesian courts apply the doctrine of restrictive immunity to safeguard the pursuits of Indonesian nationals concerned in business transactions with international states inside Indonesia. Notably, diplomatic immunity underneath the Vienna Conventions on Diplomatic and Consular Relations is taken into account waived when international authorized representatives enter into employment contracts with native employees, as demonstrated within the case of Brazilian Embassy in Jakarta v. Luis F.S.S. Pereira (Supreme Court docket resolution 376 Okay/Pdt. Sus-PHI/2013, 29 October 2013, pp. 97, 111-112).
Chapter 3 focuses on the selection of regulation. Indonesian laws and court docket follow typically uphold the precept of social gathering autonomy. In conditions the place the relevant regulation is just not specified, Indonesian students are inclined to favor the regulation of the recurring residence of the attribute performer, though judicial follow on this space stays unsure. The authors point out that there are Indonesian Non-public Worldwide Legislation Payments that assist this precept, however I have no idea whether or not these have been at the moment enacted into regulation.
The chapter then explores formal validity, materials validity, capability, and necessary guidelines. It additionally delves into particular forms of contracts, corresponding to client contracts, employment contracts, insurance coverage contracts, contracts for the sale and rent of products, contracts of carriage, negotiable devices, letters of credit score, contracts involving the switch of international foreign money, and company agreements.
Whereas Indonesian Non-public Worldwide Legislation doesn’t explicitly deal with the regulation relevant to torts, the prevailing doctrine is lex loci delicti commissi (the regulation of the place the place the tort was dedicated). Nonetheless, Indonesian judges typically apply lex fori (the regulation of the discussion board) to guard Indonesian residents. The authors notice that there are additionally Indonesian Non-public Worldwide Legislation Payments that assist the place of lex loci delicti commissi. The chapter additional discusses the regulation relevant to particular torts, together with negligence, nuisance, wrongful interference with items, defamation, and environmental harm and air pollution.
Lastly, Chapter 3 revisits different subjects beforehand coated in Chapter 2, analyzing them from a alternative of regulation perspective
Chapter 4 addresses the popularity and enforcement of international judgments. Usually, international judgments, notably condemnatory judgments, should not recognised or enforced in Indonesia, besides in instances involving normal maritime common the place Indonesian events are concerned. Nonetheless, sure international judgments, corresponding to declaratory and constitutive judgments, could also be recognised and enforced if the issuing international locations present reciprocal remedy to Indonesian judgments and the judgment doesn’t battle with Indonesia’s public coverage. The authors clarify that declaratory and constitutive judgments affirm a authorized standing or set up a brand new authorized situation for the events, as seen in instances involving property possession, adoption, or divorce.
Lastly, Chapter 4 revisits subjects beforehand coated in Chapters 2 and three, analyzing them from the angle of recognition and enforcement of international judgments.
Chapter 5 covers business arbitration in Indonesia. The authority of arbitral tribunals within the nation relies on social gathering consent, which is upheld so long as it doesn’t battle with Indonesia’s public coverage. This precept equally applies within the context of alternative of regulation. Indonesia has acceded to the 1958 New York Conference and has included it into its authorized system. Nonetheless, the authors level out that Indonesian courts haven’t constantly interpreted this regulation, notably concerning the definition of public coverage.
The chapter additionally addresses funding treaty arbitration, discussing features corresponding to jurisdiction, alternative of regulation, and the popularity and enforcement of arbitral awards. Indonesia is a signatory to the ICSID Conference, which governs worldwide funding disputes.
Chapter 6, the ultimate chapter, discusses the harmonisation of personal worldwide regulation, together with Indonesia’s involvement in world initiatives corresponding to The Hague Convention, UNCITRAL, and UNIDROIT. The chapter concludes with feedback on the way forward for personal worldwide regulation in Indonesia. The authors observe that Indonesia has performed a restricted position in world efforts to harmonise personal worldwide regulation and suggest quite a few methods for the nation to higher align its personal worldwide regulation guidelines with present world realities.
Total, Indonesian Non-public Worldwide Legislation is a well-written and informative ebook, notably worthwhile for these unfamiliar with Indonesia’s authorized panorama. Whereas a fundamental understanding of personal worldwide regulation is critical to totally recognize the textual content, the ebook is accessible and enlightening. Regardless of a couple of minor typographical errors, it was a pleasure to learn, and I extremely suggest it.
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