Arbitration Session at BANI Will Be Conducted Electronically
BANI (Indonesian National Arbitration Board) on May 28, 2020, has just issued Decree Number 20.015/V.SK-BANI/HU concerning the Rules and Procedures for Organizing Electronic Arbitration (Electronic Arbitration Decree).
Decree on Arbitration Electronically issued under the consideration that meeting and session of the Arbitration Council or Single Arbitrator can be held at any time and place including through the internet network. With this Electronic Arbitration Decree, the BANI Board of Directors Decree regarding the Temporary Termination of the Tribunal Process at BANI during the Corona Virus Disease Pandemic Period (COVID-19) was declared invalid. The Electronic Arbitration Decree shall take effect as from the date of stipulation.
There are 12 Articles in the Electronic Arbitration Decree including the following:
Article 1. Scope
- The Electronic Arbitration Rules and Procedures can be used in the event of a disaster emergency and special situation occur when:
- A party wishes to submit an application for arbitration;
- An arbitration tribunal will take place or an arbitration tribunal is in progress
- The meaning of a state of disaster emergency is as referred to in Article 1 of Law Number 24 Year 2017, which makes it impossible to carry out the normal implementation of arbitration
- Circumstances including natural disasters, both natural disasters and non-natural disasters, include epidemics, pandemics, major floods, national emergencies, riots, rebellions, conditions of combat, war, sabotage or demonstrations whose existence is declared by the authorized Institution
- Circumstances which include special circumstances are circumstances where:
- Parties wishing to submit applications for arbitration; or
- One or both unilateral one or more arbitrators are outside the region or abroad that are difficult to be able to come to the BANI secretariat or the place of arbitration due to a disaster emergency as stipulated in paragraph 2 and paragraph 3 above and or there are other special circumstances which does not allow the party requesting arbitration or the parties to be present at the BANI secretariat or the place of arbitration proceedings. This special situation includes illness; there are prohibitions from health officials including doctors or other authorized officials who forbid him to travel or other conditions that do not allow him to travel.
- The conduct of proceedings using Electronic Arbitration Rules and Procedures is considered to be held at the Indonesian National Arbitration Board, Jakarta or at the BANI Representative’s place where the hearing is held.
Article 2. Agreement of the Parties
- The Electronic Arbitration Rules and Procedures will be implemented in the event of the parties agree to use the rules and procedures for cases to be carried out or those that are being carried out.
- The agreement of the parties must be carried out in good faith based on cooperative and non-confrontational procedures.
Article 3. Petition for Arbitration
- In the event of a situation as regulated in Article 1 paragraph 1,2,3 and 4, a party may submit an application for arbitration electronically
- The request for arbitration submitted electronically, unless determined according to the rules and procedures for this electronic arbitration, is subject to the requirements of the arbitration application as stipulated in the applicable BANI Arbitration Rules and Procedures
- Payment of an arbitration application electronically is carried out according to the provisions stipulated in the applicable BANI Arbitration Rules and Procedures.
Article 4. Tribunal Rules
In the event that the parties agree to implement the Electronic Arbitration Rules and Procedures, the tribunal can be conducted using internet-based telecommunications facilities including but not limited to video-conference teleconferences or virtual conferences using platforms agreed by the parties.
Article 5. Confidentiality of the Tribunal
- The parties must agree that those who can attend and participate in the proceedings according to Electronic Arbitration Rules and Procedures are the principal and their attorney.
- The parties agreed to maintain the confidentiality of the tribunal, bearing in mind the arbitration proceedings were held in private
- The parties agree not to record proceedings which are subject to the rules and procedures.
Article 6. Technical Preparation for Tribunal
- Three days before the conduct of the tribunal according to the rules and procedures of this electronic arbitration carried out, the parties must carry out technical preparations for the tribunal.
- The technical implementation of the tribunal is conducted by the parties and the secretary of the Arbitration Council.
- The technical implementation of the tribunal includes the preparation and checking of the platform equipment to be used.
- Submission of participants from both parties who will attend the tribunal.
Article 7. Organization of Tribunals
- The Chairperson of the Arbitration Tribunal/Sole Arbitrator presides on the tribunal according to the applicable court rules and procedures by giving equal opportunities to the parties.
- The parties are obliged to carry out the tribunal in an orderly manner with regard to the tribunal procedure.
- In electronic tribunals, it is still possible to hold a mediation process. The arbitration process shall continue in the event of the mediation process does not reach a peace agreement.
Article 8. Evidence and Documents
Evidence and/or documents to be submitted by the parties can be sent via email in PDF format or submitted physically.
Article 9. Witnesses and Experts
- Witness and expert statements must be preceded by taking an oath/sworn.
- The examination of witnesses and experts is carried out by showing Civil Procedure Law in Indonesia in accordance with Article 37 paragraph 3 of Law Number 30 of 1999.
Article 10. Decision
- The decision was pronounced by the Arbitrator electronically
- The pronouncement of the decision referred to in paragraph 1, has been legally implemented by submitting a copy of the electronic decision to the parties, through electronic media, taking into account Article 58 of Law Number 30 of 1999 in conjunction with Article 35 of BANI’s Regulations and Procedures.
Article 11. Tribunal Fees
- Additional costs incurred for conducting electronic tribunals are borne equally by the parties.
- The tribunal electronic deposit is paid before the tribunal is held
Article 12. Vacancy in Rules and Procedures
- Unless otherwise specified in the Arbitration Rules and Procedures, BANI Rules and Procedures that apply to arbitration proceedings normally remain in force.
- Other provisions relating to the conduct of electronic arbitration that are not regulated in the rules and procedures and that are not normally contained in arbitration rules and procedures will be determined by the BANI Management Board.
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