Forgot your password?
Please enter your email & we will send your password to you:
My Account:
Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
This ICC Guide to National Rules of Procedure for Recognition and Enforcement of Foreign Awards under the New York Convention is the third, updated edition to mark the 60th anniversary of the New York Convention. Country Answers, which reflect the state of law at 1 October 2018, have been provided in response to a Questionnaire drawn up by a task force of the ICC Commission on Arbitration and ADR.
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
The Republic of Indonesia.
2. Date of entry into force of the New York Convention.
5 January 1982.
(Source: Presidential Decree No. 34 of 1981, dated 5 Aug. 1981, ratifying the Convention, deposited with the Secretariat General of the United Nations on 7 Oct. 1981.)
3. Has any reservation been made under Art. I (3) of the New York Convention regarding:
(a) reciprocity?
Yes.
(Source: Presidential Decree No. 34 of 1981: ‘Pursuant to the provision of Article I (3) of the Convention, the Government of the Republic of Indonesia declares that it will apply the Convention on the basis of reciprocity, to the recognition and enforcement of awards made only in the territory of another Contracting State’. See also Art. 66(a) of Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolutions (‘Arbitration Law’), State Gazette no.138/1999, Suppl. of State Gazette no. 3871: ‘The International Arbitration Award must have been rendered by an arbitrator or arbitration tribunal in a country which, together with the Republic of Indonesia, is a party to a bilateral or multilateral treaty on the recognition and enforcement of International Arbitration Awards.’)
(b) commercial relationships?
(Source: Presidential Decree No. 34 of 1981 provides ‘it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under Indonesian law’. See also Art. 66(b) of the Arbitration Law: ‘International Arbitration Awards, as contemplated in item (a) above, are limited to awards which, under the provisions of Indonesian law, fall within the scope of commercial law.’)
4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I (1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
No. All awards made in the territory of Indonesia are considered as domestic awards. This can be inferred from Art. 1(9) of the Arbitration Law, as follows: ‘International Arbitration Award shall mean an award handed down by an arbitration institution or individual arbitrator(s) outside the jurisdiction of the Republic of Indonesia, or an award by an arbitration institution of individual arbitrator(s) which, under the provisions of Indonesian law, is deemed to be an International Arbitration Award’.
Attention is drawn to a precedent under the second part of this definition concerning a dispute between two Indonesian parties submitted to ad hoc arbitration in Jakarta using the ICC Rules. The Central Jakarta District Court held that this arbitration was ‘international’ under Art. 1(9) of the Arbitration Law (the finding was upheld by the Supreme Court) as it was substantially non-domestic, i.e. the disputed contract between parties had international elements, the arbitrators chosen were foreign, the case was submitted to an international arbitration institution (i.e. ICC).
This precedent arose from the controversy that if the award had been considered as a domestic arbitration award instead of an international arbitration award, it should have been, under the Arbitration Law, registered with the relevant district court within the statutory time of 30 days after the award was rendered. In contrast, there is no statutory time limit to register an international arbitration award.
(Source: Arbitration Law, Art. 1(9): ‘International Arbitration Awards means an award handed down by an arbitration institution or individual arbitrator outside the jurisdiction of the Republic of Indonesia, or an award by an arbitration institution or individual arbitrator which, by the provisions of Indonesian law, is deemed to be an international law’.)
B. National sources of law
5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes regulations, codes, directives, other legal instrument)?
Sources of law applicable to recognition and enforcement of foreign awards are as follows:
(i) Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolutions (‘Arbitration Law’);
(ii) Presidential Decree No. 34 of 1981 concerning ratification of the New York Convention; and
(iii) Supreme Court Regulation No. 1 of 1990 concerning procedures for enforcing foreign arbitral awards.
For the recognition and enforcement of ICSID awards, Indonesia has enacted Law No. 5 of 1968 on the Settlement of Dispute between States and Foreign Citizens on the issue of Capital Investment (State Gazette No. 32/1968).
C. Limitation periods (time limits)
6.
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
The Arbitration Law only mentions a limitation period/time limit to register domestic arbitration awards (which is 30 days from the date on which the award is rendered).
(b) If yes, what if the applicable limitation period (time limit) and when does it start running?
The Arbitration Law does not mention any limitation period/time limit to register foreign arbitration awards or commence legal proceedings for enforcement.
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
Applications for the recognition and enforcement of International Arbitration Awards are handled by the District Court of Central Jakarta only. The enforcement decision is issued by the Chairman of the District Court of Central Jakarta.
(Source: Arbitration Law, Art. 65; Supreme Court Regulation, Art. 1, Art 4-5)
8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition or enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?
To be enforced, a foreign award must first be registered. This is done by the arbitrator or the arbitrator’s proxy (not by the parties). In practice, the arbitrator’s proxy is usually the party seeking recognition and enforcement or that party’s attorney. any requirements.
In principle, a party seeking to register a foreign award in Indonesia should have knowledge that the party against whom enforcement is sought has assets in Indonesia. upon which the award can be executed once it has been registered and recognized by the enforcement decision.
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
After the award has been registered (see Q. 8 above), the parties may submit a petition for recognition and enforcement (exequatur) through ex parte proceedings. However, if the losing party challenges the enforceability of the award by submitting a lawsuit before the Central Jakarta District Court, the District Court may in practice summons both parties to present their arguments and evidence. The District Court will then render grant or deny enforceability of the award.
10.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
The first decision granting recognition and enforcement is not subject to any form of appeal or recourse.
(Source: Arbitration Law: Art. 68(1).)
The first decision denying recognition and enforcement is subject to appeal.
(Source: Arbitration Law: Art. 68(2).)
(b) How many levels of appeal or recourse are available against this decision?
There is only one level of appeal available against the first decision denying recognition and enforcement: an appeal to the Supreme Court. The Supreme Court must issue the decision within 90 days upon receiving the appeal memorandum.
11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as apposed to simply freezing assets)?
Legal proceedings to enforce of foreign arbitral awards break down into four main stages:
The order of recognition and enforcement also breaks down into several stages.
(Source: Civil procedure codes: Het Herziene Indonesisch Reglement, Art. 196; Reglement Tot Regeling van Het Rechtswezen In De Gewesten Buiten Java En Madura, Art. 207.)
At the aanmaning stage, the assets of the losing party are neither frozen nor seized and remain in the possession of the losing party. They can be frozen, seized or auctioned only if the losing party does not execute the award voluntarily after receiving the warning.
E. Evidence required
12.
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?
(i) The original award or a copy authenticated in accordance with the provisions on authentication of foreign documents;
(ii) a sworn Bahasa Indonesia translation of the award;
(Source: Arbitration Law, Art. 67(2).)
(b) Is it necessary to provide the entire documents or only certain parts (e.g. entire contract or only arbitration clause)?
The entire documents are required.
(Source: Arbitration Law, Art. 67(1)(b).)
(c) Are originals or duly certified copies required?
Either originals or duly certified (authentic) copies, as stated above.
(d) How many originals or duly certified copies are required?
On the basis of the practice of the Central Jakarta District Court, only one original or one certified copy of each document is required for registration with the Central Jakarta District Court.
(e) Does the authority or court keep the originals that are filed?
The court keeps the originals, except for the award, as the court usually requests only an authenticated copy, not the original.
13.
(a) Is it necessary to provide a translation of the documents supplied?
(b) If yes, into what language?
Indonesian.
(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?
The Arbitration Law does not define what is to be understood by an official translation. On the basis of the practice of the District Court of Central Jakarta, an official translation means a translation by a sworn translator.
(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?
It is necessary to provide a full translation of the original or an authenticated copy of the award and the agreement upon the basis of which the award is made, given there is no provision specifying that only a translation of certain parts is required.
F. Stay of enforcement
14.
(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?
As the New York Convention has been ratified by the Government of the Republic of Indonesia, theoretically it is possible to request a stay of legal proceedings to obtain an exequatur. In the absence of statutory guidelines, the District Court may simply delay the issuance of an exequatur pending the outcome of an application to set aside the awards before the competent authority.
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
The Arbitration Law is silent on this matter. Whilst not a stay of proceedings in a litteral meaning, delay in enforcement may in practice occur in the following circumstances:
(i) an application to set aside the foreign award is being heard by the competent authority; and
(ii) a losing party files a lawsuit to challenge the enforceability of award before the Indonesian court.
It should be noted that the grounds for setting aside are very limited and the Indonesian courts have consistently refused to apply the statutory setting aside procedure to foreign arbitral awards.
(Source: Arbitration Law: Arts. 70(72.)
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
No.
G. Confidentiality
15.
(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?
There is no provision in Indonesian law expressly providing for the confidentiality of documents filed in legal proceedings for recognition and enforcement. On the basis of the practice of the District Court of Central Jakarta, the documents will not be kept confidential by the court.
(Source: Arbitration Law, Art. 27. The General Elucidation of the Arbitration Law states as follows: ‘All examinations of disputes by an arbitrator or a panel of arbitrators shall be closed to the public. The provision that examinations shall be closed to the public is different from the civil procedures applicable at the District Court, which is open to the public. This is to emphasize the confidential nature of a settlement by arbitration’.)
(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?
On the basis of the practice of the District Court of Central Jakarta, there are no hearings on recognition and enforcement of foreign arbitral awards, unless the losing party files a lawsuit to challenge the enforceability of the award before the Indonesian court.
If an appeal is made to the Supreme Court against a decision by the chief judge of the District Court of Central Jakarta not to recognize the award, the purpose of the appeal will be to determine whether or not the law has been correctly applied by the District Court and will normally be done without the presence of the parties.
(Source: Law No. 14 of 1985, Art. 50: ‘Cassation examination is done by the Supreme Court, based on letters, and only if necessary, the Supreme Court will hear the parties or witnesses, or order the Court of First Instance or the Appellate Court which decided the case to hear the parties or witnesses’.)
(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?
On the basis of the practice of the District Court of Central Jakarta, the decision of the Chairman of the Central Jakarta District Court to recognize and enforce a foreign arbitration award will not be published. However, if the losing party files a lawsuit to challenge the enforceability of the award before the Indonesian court, the outcome of this proceeding will be published. There is no recourse to request the redaction of the court's judgment.
(Source: The General Elucidation of the Arbitration Law states as follows: ‘The only advantage of arbitration over the court is its confidentiality nature because the award is not published’.)
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
The Arbitration Law does not have any specific provisions which deal with the recognition and enforcement of either an interim or a partial award. As a consequence, in order to execute an interim or a partial award related to a monetary obligation (e.g. seizure of assets), recognition and enforcement will follow the procedure for enforcing a foreign award as governed by Arts. 65(68 of the Arbitration Law.
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up shares certificate or other property)?
The recognition and enforcement of non-monetary relief in foreign arbitral awards is possible.
18. When, if ever, can a party obtain recognition and enforcement of only part of relief granted in foreign awards?
In principle, the judge may only grant or refuse recognition and enforcement of the entire award. There is no published precedent of recognition or enforcement of only part of the relief granted in a foreign award.
(Source: Arbitration Law, Art. 72(2).)
19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?
This is unsettled legal issue in Indonesia. The Arbitration Law is silent on this matter; there is also no
court precedent/judiciary guideline on this issue.
20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?
Award debtors may attempt to prevent the issuance of an enforcement decision by filing an objection letter, application or lawsuit for a refusal to recognize or enforce the award to the Chairman of the District Court of Central Jakarta. This application is not provided for under the Arbitration Law but has been used several times by award debtors to obstruct the process of examination of an international arbitration award. Although not very common, District Court Chairmen have in response issued non-enforcement orders.
Country Rapporteur: Theodoor Bakker FCIArb
Other contributor: Andi Y. Kadir