RARELY KNOWN ADVANTAGES OF ARBITRATION
Based on the experience in handling arbitration cases, the advantages cannot frequently be obtained when the dispute resolution is resolved before the general courts. Those advantages are:
- From the Perspective of Legal Events, Arbitration Proceedings are More Flexible, But Still in Corridor of Existing Law.
Basically procedures for settling disputes through arbitration, use the civil procedural law as stipulated in Het Herziene Indonesisch Reglement (“HIR“) and Law Number. 30 of 1999 on Arbitration and Alternative Dispute Resolution (“Arbitration Law”). But Arbitrator Association, that lead the trial process is more flexible in determining the agenda of the trial, adjusting to the interest of the litigants.
In every trial, Arbitral Tribunal will definitely seek for the mediation between the parties in advance. The parties are given leeway in mediation both inside and outside the court. Nevertheless, the mediation process remains in control of the Arbitral Tribunal in order not to be protracted with no certainty of completion. Often times, Arbitral Tribunal decide to conduct caucus in order to describe the problems of the parties involved more clearly. In this process, the parties have the flexibility to separately discuss with Arbitral tribunal, particularly when the tribunal has already read the entire lawsuit (petition) and answers.
Prior to Trial Process, Arbitrators Have Already Gained Early Description of Existing Problems Because The Application and Answer from Previous Parties have been studied.
One of the main advantages of settling disputes through arbitration is our proposed case handled by arbitrators who do have skills and competencies in the fields of business which is the main issue in the case. Article 12, paragraph (2) of the Arbitration Law says that one of the requirements to be appointed as an arbitrator is having experience and actively master a particular field for at least 15 years.
As a result it can be ascertained that arbitrators have the basic knowledge and reasonable understanding related to business concerning the case to be handled. In BANI, Arbitral Tribunal will lead the proceedings. The Arbitral Tribunal consists of three arbitrators. Both the Petitioner and Respondent are given time and opportunity to appoint one arbitrator who is believed to have the knowledge, experience and sufficient background regarding the existing problems. Prior to the trial, the Arbitrator has to study the issues of cases handled by them through the requests and answers given by the parties before the first trial. Therefore, the arbitrators have understood the issues, not only from a legal perspective but also from a technical standpoint.
Opportunities for the Parties To Remain Establishing Cooperation (Business) After a Case has been settled
Nevertheless, they hope that a settlement through the arbitration process may provide the best solution. In our experience, though not always a win-win solution, at least in the case of companies having dispute with a state-owned company, a decision that gives legal certainty can be reached when disputes arise due to differences in interpretation. The reason is that without any certainty of interpretation the implementation of the further cooperation will doubt both parties. Furthermore, it is possible that the audit results can impose sanctions.
It is proven that arbitration is the best choice for business people to “cure” the problems that exist between the parties and remain to continue promoting good relations for the future. Moreover, since the nature of the arbitration resolution is closed, the confidentiality of matters that are running, is maintained. So, the parties do not be worried about public judgement; after the dispute, they can be back to business.
BP Lawyers can help you
We can assist you in providing the best solution to the problems or disputes related to contracts, settlement through the arbitration process and the general judiciary. You can contact us by:
Bimo Prasetio, S.H. dan Fairus Harris, S.H., M.Kn.