Dr Madjedi Hasan, Arbitrator, Indonesian National Board of Arbitration (BANI) - Dispute resolution...
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Transcript of Dr Madjedi Hasan, Arbitrator, Indonesian National Board of Arbitration (BANI) - Dispute resolution...
By Dr. Ir. Madjedi Hasan, FCBarb
Kalimantan Coal Conference 4 September 2013, Balikpapan
• Overview of modern commercial arbitration as a
mean to resolve commercial dispute.
• Relevance of arbitration to the coal mining.
� Dispute resolution processes: � Litigation in national courts; � No international court to deal with international disputes, therefore
dispute resolution is through: � International arbitration; � Alternative Dispute Resolution (ADR) & Expert Determination.
� Dispute resolutions between States and corporation: � Investment arbitration: related to investment (BIT and MIT); � Commercial arbitration: related to commercial contract.
� Need to plan and implement dispute resolution strategy: � To maximize their potential benefits; � To minimize their potential losses; � Key junctures in any transaction where companies can have a
significant impact: � Dispute resolution clause in their agreement; and � Select their dispute counsel and the arbitrators, mediator or other dispute
resolution facilitators.
• Advantages: • Preferred initial method for the settlement of commercial disputes. • Less undesirable characteristics of court litigation . • Parties have privilege of contractually determining manner & procedure. • Flexibility : free to choose manner in which the arbitration is conducted. • Speed: fixed and stringent timelines. • Confidentiality : can avoid intrinsic complexities & technicalities of the
litigation process. • Informal: freely select their arbitrator, applicable laws, seat of arbitration. • Final and Binding Award.
• Downsides: • Somewhat expensive (dependent on amount of claim), but it is
measurable or known beforehand. • May not be practical or cost-‐effective for small claims. • It offers an alternative to parties as opposed to the somewhat more
hostile and confrontational method of civil litigation.
� Important provision in an international contract with the Government: � Company’s right to claim waiver of sovereign immunity, i.e. a judicial doctrine
that prevents the government or its political subdivisions, departments, and agencies from being sued without its consent.
� Rights and obligations are of a commercial and not a government act. � State Sovereign Immunity:
� Absolute Immunity � Restrictive or qualified immunity (1976 Foreign Sovereignty Act):
� Jure imperii (government public acts) and � Jure gestionis (i.e. commercial activities).
� GOI still upholds absolute immunity approach, but in Joint Operation Contract (JOC) and Energy Sales Contract (ESC) for Geothermal undertaking has agreed with clauses: � Acknowledging that the execution, delivery and performance of the contract
constitute private and commercial acts rather public or governmental acts. � Agree with the clause Force Majeure caused by GOI action will be applicable
only for the Company (not for PLN or PERTAMINA).
� International Centre for the Settlement of Investment Dispute (ICSID) provides the arbitration facilities to resolve disputes between Contracting States versus National of Other States (Indonesia’s ratification: Law Nr. 5/1968);
• Objective of ICSID is to foster conducive climate for investment that will facilitating the flow of natural resources to the developing nation with reasonable terms.
• ICSID Arbitration is to maintain balances between the investors and host states ’ interests. � Government significantly change terms of original deal/expropriate an investment. � These disputes do not often happened to international oil companies (IOC).
• Number of State participating in ICSCID = 158 � Parties must consent in writing to submit disputes to the ICSID and such
consent may be expressed in Bilateral Investment Treaty (BIT) or Multilateral Investment Treaty (MIT) and foreign investment laws as well as in contracts.
� Multilateral Investment Treaty (MIT): � Energy Charter Treaty (Europe); � ASEAN Agreement for the Promotion and Protection of Investments.
� Company versus Company: � Dispute amongst the joint venture participants in contracts (Joint Operating
Agreement, Unitization Agreement, Farm-‐out Agreement, Area of Mutual Interest Agreement, Study and Bid Agreement and Confidentiality Agreement).
� Dispute between operators and contractors for the services (drilling , mining construction, equipment leasing and facilities contracts, etc) . Potential for dispute is immense.
� In Coal Contract (Contract of Work): � Contractual arrangement between foreign company (Contractor) & State
enterprise (State party) authorizing the Contractor to conduct coal mining activities within a certain area in accordance with the agreement.
� The State party owns the resources and Contractor is responsible for funding the exploration and exploitation work.
� Dispute resolution is arbitration (commercial).
� Individual versus Company: � Personal injury. Tort claim.
� Joint Interest: � Between a coal company and a designated State enterprise; � Between coal companies; � Issues which may likely lead to disputes in this Joint Venture Agreement
include cash call requirements; supplies made to the Joint Venture Operations; control of the Operator and approvals by the Joint Operating Committee.
� Farm Out Agreement: � Between a third party who agrees to acquire from one or more of the existing
licensees an interest in a production license and in the operating agreement relating to it, for a consideration which in coal industry practice will normally consist of the carrying out of a specified work obligation, known as the earning obligation.
� Service Contract: � Between the companies and the contractor for various services (major
construction, lease of equipment contracts, specialized services or plant and equipment, production facilities).
� Arbitration clauses are a common feature of contracts in this category, with the Contractor/Operator often providing standard forms of contract.
• Several factors contribute to the use of arbitration for dispute resolution in agreements in the coal industry including: • Coal transactions operate in a complex environment; • Industry is highly competitive and commercial terms are closely
guarded secrets. • Overlapping commercial interests and long term contractual
relationships between coal companies militate against litigation which is often expensive, time consuming, adversarial and destructive of good relationships.
• Disputing parties also often come from diverse legal and cultural backgrounds, making the submission of a dispute to the national courts of either party an unpalatable option.
• The technical nature of the industry requires an arbitrator w/specialist knowledge.
• The international nature of the operations of multinational favor arbitration as a mode of dispute resolution.
� AIM of arbitration Law Nr. 30/1999: � To stop the courts from interfering with proposed and ongoing arbitrations; � Court has no authority to adjudicate disputes between parties to an arbitration
agreement , except if the appointment of an arbitrator is challenged). � Indonesia’s Arbitration Law does not reflect UNCITRAL Model Law. � Arbitration:
� Institutional (BANI, ICC, SIAC, RCAKL, CIETAC, HKIAC, JCAA, LCIA) � Ad-‐hoc
� Hearings on the dispute must be completed within 180 days from the formation of the Tribunal and may be extended upon consent of the parties.
� Indonesia maintains a single regime for international and national arbitration, except in the procedure for enforcement : � National � International: � An award rendered by an arbitration institution or individual arbitrator(s) outside the
jurisdiction of the Republic of Indonesia, or � An award by an arbitration institution or individual arbitrator(s) which under the provisions
of Indonesian law are deemed to be international arbitration awards.
� An international arbitral award may be recognized & enforced when: � It is rendered by a tribunal in a country which is a party to a bilateral or
multilateral convention with Indonesia concerning recognition and enforcement of foreign arbitral awards;
� It relates to the field of commercial law as that term is defined under the Indonesian law;
� The arbitral award does not "manifestly" contravene "public order". These conditions in the Regulation are consistent with the New York Convention.
� Award registration (w/application for a writ of execution): � National award: 30 days after the award is rendered & read. � International award is registered at
� Central Jakarta District Court together with exequatur. � Supreme Court (in case that GOI itself is the party to the arbitrated dispute). � No time limit for registration.
� Indonesia acceded to the New York Convention in Oct. 1981, (implementation regulation : Supreme Court Reg. No. 1/1990).
� Award registration (w/application for a writ of execution): � National award: 30 days after the award is rendered & read. � International award is registered at
� Central Jakarta District Court together with exequatur. � Supreme Court: in the case that Republic of Indonesia itself is the party to the
arbitrated dispute. � No time limit for registration.
� Indonesia acceded to the New York Convention in Oct. 1981, (implementation: Supreme Court Regulation No. 1/1990).
� An international arbitral award may be recognized and enforced when: � It is rendered by a tribunal in a country which is a party to a bilateral or
multilateral convention with Indonesia concerning recognition and enforcement of foreign arbitral awards;
� It relates to the field of commercial law as that term is defined under the Indonesian law;
� The arbitral award does not "manifestly" contravene "public order". These conditions in the Regulation are consistent with the New York Convention.
� The differentiation of international and domestic-‐rendered awards is based on substantive grounds rather than territorial borders: � Limited importance of the place of arbitration in international cases. � The place of arbitration is often chosen for reasons of convenience of the
parties and the dispute may have little or no connection with the State where the arbitration legally takes place.
� Treating awards rendered in international commercial arbitration in a uniform manner irrespective of where they were made.
� BANI’s Arbitration Rules & Procedures: � All proceedings shall be conducted closed to the public, and all matters related
to the arbitral reference, including documents, reports/notes on sessions, testimonies of witnesses and awards, shall be kept in strict confidence among the parties, the arbitrators and BANI, except to the extent required by law or otherwise as may agreed by all parties to the dispute (Art. 13.2).
� The process of case examination shall be conducted in the Indonesian language, unless the Tribunal taking into consideration the situation such as (existence of foreign parties and/or foreign arbitrators who cannot speak Indonesian, and/or where the transaction arising from the dispute is conducted in another language), deems it appropriate to use the English or another language (Art. 14).
• Coal transactions operate in a complex environment: • Industry is highly competitive & commercial terms are guarded secrets. • Disputing parties also often come from diverse legal and cultural
backgrounds, making the submission of a dispute to the national courts of either party an unpalatable option.
• International arbitration is the logical forum for cross border dispute resolution.
• Arbitral awards made in Indonesia have the same effect as final and conclusive judgments and the enforceability of such arbitral awards is guaranteed under the Indonesia arbitration law.
• Enforcement in Indonesia of awards rendered in foreign treaty countries is also guaranteed by the multilateral treaties, namely "the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards".