Annulment of the arbitration award as stipulated in Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution (“Arbitration Law“) is possible to be proposed by one of the parties of the case. Any party who would like to cancel the arbitration award, must submit the application before the district court. Although there is a time limit that is not longer than 30 days since the annulment request is received. However, the case proceedings remain using civil law procedure as stipulated in Het Indische Reglement (HIR). In the process of hearing the request, the parties of the case are called legally, and they deserve to be investigated and requested to comment on the annulment request, as filed by the applicant.
Such application must be filed along with the reasons as stipulated in Article 70 of Arbitration Law. Those reasons are:
- Letters or documents are filed in the investigation, after adjudication, being recognized as false or stated as false;
- Once the decision is taken, then those decisive documents are found, which is hidden by the other party.
- Decision taken from the ruse that was carried out by one of the parties in the dispute.
In the explanation of Article 70, it is mentioned that:
Annulment request can only be filed against a decision that has been registered in court. The reasons for the annulment request referred to this article must be proven by a court decision. If the court declares that these reasons are proven or not proven, the decision of this court can be used as a basis for the judge to grant or deny the request.
Based on the elucidation of Article 70 and before the Constitutional Court Decision No. 15 / PUU / XII / 2014 was issued, any request for annulment of arbitration, must be filed along with reasons mentioned in Article 70. The applicant must be either proven or based on a court decision which already has a permanent legal force (inkracht).
In the criminal verdict, it is declared to have proof of “trickery” in the court process of arbitral award. The investigation process of the element of “trickery” is conducted through the process of resolving criminal cases, which are separated and cannot be simultaneously carried out along with the request of annulment of this arbitration award.
Therefore, the Constitutional Court decides to accept a request for a judicial review on the elucidation of Article 70, in particular related to phrases must be proven by a court decision. until a criminal case reaches a final decision, it takes a long time for it to be legally binding. Which is impossible for any applicant to obtain the decision before submitting the application for cancelation of arbitral award.
If the elucidation of Article 70 is still valid, it will clearly burdensome and detrimental to the Applicant. This is due to 30-day deadline to apply for annulment of the arbitration award. The time limit will be exceeded surely. As a result, it will be impossible for a request of an annulment of arbitral award to be filed based on criminal decisions that have permanent legal force.
Bimo Prasetio, S.H. dan Fairus Harris, S.H., M.Kn.
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