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All Journal Siyasah Dusturiyah: State Law Review Legitimacy: Journal of Law and Islamic Law Open Access DRIVERset
Rolis Barson Sembiring
Faculty of Law, University of Indonesia, Indonesia
Religion Law, Crime, Criminology & Criminal Justice Social Sciences

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Reconstructing Corporate Opportunity Doctrine in Indonesia: Addressing Legal Vacuum and Fiduciary Duty Rolis Barson Sembiring
Legtimacy: Journal of Law and Islamic Law Vol. 2 No. 1 (2026): Legitimacy: Journal of Law and Islamic Law
Publisher : CV. Era Digital Nusantara

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.59066/jolil.v2i1.2426

Abstract

The absence of explicit provisions governing the Corporate Opportunity Doctrine in Indonesian Company Law creates a critical legal vacuum, exacerbating agency costs and facilitating fiduciary duty breaches. Opportunistic directors frequently exploit this regulatory void, weaponizing the Business Judgment Rule as a safe harbor against tort claims. Through a functional comparative approach, this article examines mandatory disclosure frameworks in the United States and strict prophylactic rules in Singapore to evaluate fiduciary boundaries. The analysis demonstrates that effective corporate governance requires precise operational limits and absolute transparency. To resolve this doctrinal deadlock, this study proposes a legislative reconstruction by integrating the doctrine into the unique dual board system of Indonesia. The proposed framework mandates proactive disclosure and independent corporate rejection by the Board of Commissioners. Furthermore, introducing disgorgement of profits as an equitable remedy is essential to restore legal certainty, mitigate managerial misconduct, and fully align national corporate governance with rigorous global standards.
Reconstructing Corporate Opportunity Doctrine in Indonesia: Addressing Legal Vacuum and Fiduciary Duty Rolis Barson Sembiring
Legtimacy: Journal of Law and Islamic Law Vol. 2 No. 1 (2026): Legitimacy: Journal of Law and Islamic Law
Publisher : CV. Era Digital Nusantara

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.59066/jolil.v2i1.2426

Abstract

The absence of explicit provisions governing the Corporate Opportunity Doctrine in Indonesian Company Law creates a critical legal vacuum, exacerbating agency costs and facilitating fiduciary duty breaches. Opportunistic directors frequently exploit this regulatory void, weaponizing the Business Judgment Rule as a safe harbor against tort claims. Through a functional comparative approach, this article examines mandatory disclosure frameworks in the United States and strict prophylactic rules in Singapore to evaluate fiduciary boundaries. The analysis demonstrates that effective corporate governance requires precise operational limits and absolute transparency. To resolve this doctrinal deadlock, this study proposes a legislative reconstruction by integrating the doctrine into the unique dual board system of Indonesia. The proposed framework mandates proactive disclosure and independent corporate rejection by the Board of Commissioners. Furthermore, introducing disgorgement of profits as an equitable remedy is essential to restore legal certainty, mitigate managerial misconduct, and fully align national corporate governance with rigorous global standards.
Unregulated Foreign Investment Screening in Indonesia: State Sovereignty and Legal Certainty Implications Rolis Barson Sembiring
Siyasah Dusturiyah: State Law Review Vol. 2 No. 1 (2026): Siyasah Dusturiyah: State Law Review
Publisher : Yayasan Cahaya Generasi Positif

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.65101/r0p3tp31

Abstract

This article examines the regulatory vacuum in Indonesia regarding foreign direct investment screening mechanisms and its implications for state sovereignty and legal certainty. Despite the global paradigm shift towards national security screening, the current licensing system prioritizes economic facilitation, lacking an ex ante review procedure for strategic sectors. Utilizing doctrinal legal research with statute, conceptual, and comparative approaches, this study systematically analyzes the risks of this legislative void. The findings demonstrate that the absence of structured screening compromises national interests and degrades legal certainty. Arbitrary revocations of investments without established procedural frameworks expose Indonesia to international arbitration disputes under international investment agreements, risking fatal violations of the fair and equitable treatment standard. Consequently, this study concludes that Indonesia must urgently institutionalize a comprehensive investment screening system. This mechanism is absolutely imperative to proportionally balance open investment policies with essential security safeguards, thereby mitigating international litigation risks and protecting territorial sovereignty.
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