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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.
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:
==========================
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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