This Country Answer reflects the state of the law as of 31 December 2012. Please refer to the explanations in the chapter entitled Preliminary Note.

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: Law No. 30 of 1999 ('Arbitration Law'), Art. 66(a): '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?

Yes.

(Source: Arbitration Law, Art. 66(b): '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 Jarkarta 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), etc. The decision of the Central Jakarta District Court was later upheld by the Supreme Court, which basically agreed that, because the dispute had international elements, the award should be treated as an international rather than a domestic arbitral award. However, the legal reasoning underlying this decision is still being debated among legal practitioners.

(Source: Arbitration Law, Art. 1(9).)

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) Arbitration Law;

(ii) Presidential Decree No. 34 of 1981 concerning ratification of the New York Convention;

(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.

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?

(b) If yes, what if the applicable limitation period (time limit) and when does it start running?

The Arbitration Law only mentions a limitation period/time limit for commencing legal proceedings to register domestic arbitration awards (which is 30 days from the date on which the award is rendered), but does not mention any limitation period/time limit for commencing legal proceedings to register foreign arbitration awards.

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.

(Source: Arbitration Law, Art. 65.)

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.)?

The Arbitration Law does not subject the acceptance of jurisdiction over the enforcement of foreign awards to any limits. Logically, a party seeking to register a foreign award in Indonesia should know that the party against whom enforcement is sought has assets in Indonesia, upon which the award can be executed once it has been registered.

9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?

To be enforced, a foreign award must first be registered. This is done not by the parties, but by the arbitrator or the arbitrator's proxy. After the award has been registered, the parties may submit a petition for enforcement (exequatur) through ex parte proceedings.

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).)

It is possible to request the annulment of part of a foreign arbitral award on the grounds listed in Art. 70 of the Arbitration Law: (i) submission of false or forged letters or documents; (ii) after the award has been made, discovery of decisive documents concealed by the other party; (iii) fraud.

(b) How many levels of appeal or recourse are available against this decision?

There is one level of appeal available against the first decision denying recognition and enforcement: an appeal to the Supreme Court.

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: (i) submission and registration of the award; (ii) petition for enforcement of the arbitral; (iii) order of enforcement from the chief judge of the District Court (eksekuatur); (iv) enforcement of the award.

The order of enforcement also breaks down into several stages. First, the chief judge of the District Court issues a warning to the party that is supposed to perform the award (aanmaning). Once an aanmaning is issued, the losing party has eight (8) days in which to carry out its obligation. This is an indispensable requirement without which execution cannot be obtained.

(Sources: 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) the original of the agreement under which the award was made, or a copy authenticated in accordance with the provisions on authentication of foreign documents; (iii) certification from the diplomatic representative of the Republic of Indonesia in the country in which the award was rendered stating that such country and the Republic of Indonesia are both bound by a bilateral or multilateral treaty on the recognition and enforcement of international arbitration awards.

(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 asks only for an authenticated copy, not the original.

13.

(a) Is it necessary to provide a translation of the documents supplied?

Yes.

(Source: Arbitration Law, Art. 67(2).)

(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.

(Source: Arbitration Law, art. 67(2).)

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?

(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?

No stay of proceedings is possible once an award has been recognized.

A stay of proceedings may occur in the following circumstances:

(i) an appeal is filed against the decision of the chief judge of the District Court of Central Jakarta not to recognize the award (the appeal automatically stays the proceedings);

(ii) an application to annul the award is filed with the chief judge of the District Court.

(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?

Provision of security does not affect the granting of a stay of legal proceedings for recognition and enforcement.

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 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.

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.')

In proceedings to annul an arbitral award governed by Chapter VII of the Arbitration Law, a hearing will be held by the District Court, which will be open to public in accordance with the normal procedure for civil proceedings.

(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. On the other hand, the Supreme Court's decision on the annulment of an arbitral award will be released in its directory of judgments.

(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. It is doubtful that a party could obtain recognition and enforcement of only part of 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?

A foreign award that has been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention is not a final and binding award and cannot be enforced.

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.)?

In practice, one of the obstacles preventing enforcement of an arbitral award is the fact that the District Court or the Supreme Court often grants a request for annulment, which makes the award non-enforceable.

Country Rapporteur:

Frans H. Winarta

Other contributor:

Charles Ball