Three Tips on Identifying the Validity of Signatures in Documents
Documents are all forms of writing found on a particular tool / paper / place, used for particular purpose. As time and technology developed, false documents are often found. False document is a document that has been fully/partially altered by violating the rights, made by a person with certain purpose, and may be presented as evidence. One of the most frequently forged in a document is a signature, as a proof of legality of the document. Things that should be taken into account on identifying the validity of signatures in documents are: Identifying the base of the document, which consists of: Media used to write the document. It may be a written document or an electronic document; Contents of the document; Legality of the document. It is viewed from the handwriting and/or the signature, and/or the seal of the document. Gathering things that are suspected of being falsified. Whether it is the entire contents of the document, the signature, or the seal used in the document. The alleged documents can be in the form…
Read More
Three Types of the Criminal Action of Money Laundering You Should Know
In Law Number 8 of 2010 on Countermeasure and Eradication of Money Laundering (Law on Money Laundering), the criminal actions of money laundering are classified into three provisions: The Criminal Action of Money Laundering regulated in Article 3: Anyone who places, transfers, forwards, spends, pays, grants, deposits, takes to the abroad, changes the form, changes to the currency or securities or other actions towards the Assets of which are recognized or of which are reasonably alleged as the result of criminal action, as set in Article 2 paragraph (1) of this Law with the purpose to hide or to disguise the origin of Assets, shall be subject to be sentenced due to the criminal action of Money Laundering with the imprisonment for no longer than 20 (twenty) years and fine for no more than Rp10.000.000.000,00 (ten billion rupiah). A case in point is the purchase of Garuda Indonesia National Airline shares by Muhammad Nazaruddin, whose share purchase is done only for companies with high priced share. He did the purchase to store his money…
Read More
Authentication Powers of Notarial Deed Drafted Outside the Notary’s Jurisdiction
“A Notary is prohibited to draft a Notarial Deed outside his/her jurisdiction.” One of our clients had asked the following question: “My company, domiciled in South Jakarta, will hold a General Meeting of Shareholders (GMS), requires a notary to attend the GMS to make minutes of the meeting. Is it possible for our notary partner, having jurisdiction in Tangerang, to attend the GMS?” We declared that it is not possible. If the notary is required to attend a GMS, then it is necessary to find another notary who has the jurisdiction in Jakarta. Why? This issue is related to the prohibition of a notary to run his/her position outside his/her jurisdiction [Article 17 of Law Number 2 of 2014 on Changes to the Law Number 30 of 2004 on Position of Notary (Law on Position of Notary)]. If it is violated, the notarial deed will only have authentication power as a private/under hand deed. As for the definition of a jurisdiction of notary, it covers all cities within the province of his/her jurisdiction. The…
Read More
The Doctrine of Separability in Arbitration Agreement
If the underlying contract has expired or is nullified, the arbitration clause remains valid. Arbitration clause is an additional agreement (accesoir) of the underlying contract. In accordance with the legal principle of additional agreement, the arbitration clause shall not exceed or is in contrary with the underlying contract. The existence of arbitration clause is only an addition for its underlying contract, and will not affect its fulfillment. Without an arbitration clause, the fulfillment of the underlying contract will not be obstructed. Although arbitration clause is only an additional agreement, there are some unique characteristics that cause the legal principle of additional agreement will not be fully implemented. Exceptions for this implementation are stated in Article 10 of Law Number 30 of 1999 on Arbitration and Alternative Dispute Resolution which states: “An arbitration agreement will not become void because of the circumstances mentioned below: the death of one of the parties; the bankruptcy of one of the parties; novation; the insolvency of one of the parties; inheritance; the conditions to terminate the main contract become…
Read More
Enforcement of International Arbitral Award in Indonesia
Arbitration Law gives authority to the Central Jakarta District Court to handle matters with respect to the recognition and enforcement of an international arbitral award. Arbitration is now a quite popular method of alternative dispute resolution among businesses. Arbitration law in Indonesia is regulated by Law Number 30 of 1999 on Arbitration and Alternative Dispute Resolution (hereinafter Arbitration Law) One of the important matters addressed in Arbitration Law is international arbitral award, defined as: “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, under the provisions of Indonesian law, is deemed to be an international arbitration award.” From the definition mentioned above, it is understood that if an arbitral tribunal consists of a foreign arbitrator, yet the seat of arbitration is in Indonesia, the arbitral award will be regarded as a national arbitral award. Enforcement of International Arbitral Award in Indonesia Article 65 of Arbitration Law expressly states that the Central Jakarta District…
Read More
Procedures of Dispute Resolution Through Arbitration That You Must Know
“Besides its numerous advantages of dispute resolution in arbitration, we believe that the arbitrator who is competent and an expert in the field of dispute is also an advantage.” The procedure of arbitration is different from handling civil cases in the district court. Arbitration is preceded by submitting a petition for arbitration, followed by request for appointing arbitrator(s) chosen by the parties to handle the matter in dispute. The parties also required to submit evidences to support their claims in their petition (statement of claim). Arbitration as a method of alternative dispute resolution may impose a final and binding award. Ideally, the parties who resolve their dispute through arbitration will not bring the aforesaid dispute to the court, either for an enforcement or setting aside the arbitral award. Although arbitration is only a quasi judicial institution, it is more effective to resolve business disputes, as long as it is done voluntarily and in a good faith. This is because the parties choose to resolve their dispute through arbitration to avoid the court. One of…
Read More
Is It Possible to File for Bankruptcy on Debt Under the Contract Which Contains Arbitration Clause?
“Existence of arbitration clause shall not make the competency of commercial court to examine and adjudicate the petition for declaration of bankruptcy cease to exist.” The existence of choosing arbitration as a method of dispute resolution in a contract automatically makes the competency of district court in adjudicate the dispute arising in relation of aforesaid contract cease to exist, whether the dispute is in a form of breach of contract or unlawful act. However, it does not apply in the commercial court, particularly in bankruptcy case. The provision under Article 303 Law Number 34 of 1994 on Bankruptcy and Suspension of Obligation for Payment of Debts (hereinafter Bankruptcy Law) states: “The Court shall remain be competent to examine and adjudicate the petition for declaration of bankruptcy from contracting parties containing arbitration clause provided that the debt being basis of application for bankruptcy has fulfilled the requirements as referred to in Article 2 paragraph (1) hereof.” Based on this provision, a party who perform a breach of contract which contains arbitration clause may still be…
Read More
Questioning the Pros and Cons of Arbitration in Indonesia
Arbitration is now a quite popular method of alternative dispute resolution among businesses. The rule of arbitration in Indonesia are regulated in Law Number 30 Year 1999 on Arbitration and Alternative Dispute Resolution (hereinafter Arbitration Law). It is said in many literatures that the advantages of arbitration compared to judiciary are: Confidentiality of the matter in dispute. Arbitration and its tribunal are bound by agreement to ensure the confidentiality of all disputes they deal with. Thus, the disputes that are being resolved in arbitration will not come up in the media and public. It is very advantageous for businesses, particularly for the businesses related to the end customers. Disputes are very bad for their business. The arbitration hearing is done on time as scheduled. Punctuality will result in prevention of delays caused by procedural and administrative matters. It means a lot for businesses as it is not time-wasting and more cost-effective, particularly for those who use lawyer services in hourly basis. Arbitrators are not only experienced, but also expert in matter of business dispute.…
Read More
Two Conditions to Be Met in Setting Aside an Agreement Through Arbitration
It is common to find arbitration clauses in construction, real estate, transportation, or other commercial agreements which mandate the concerned parties to use arbitration as a method of dispute resolution. This brings consequences if any party wishes to set aside the agreement, it cannot be submitted to the court, but rather to the arbitration. This is in line with the provision of Article 1266 of Kitab Undang-Undang Hukum Perdata (Indonesian Civil Code): “A void condition is deemed to have been included in reciprocal agreements, in case a party does not fulfill his obligation. In such case, the agreement is not void by law, but voidance must be requested to the Court.” It should be noted that “court” phrase in this provision cannot be rigidly interpreted that any request to set aside an agreement shall be submitted to the district court. Although Article 1226 of Indonesian Civil Code is mandatory (dwingend), it does not mean that what has been written in the Law shall be interpreted textually, but rather contextually. Referring to the provision of…
Read More