Ariawan Gunadi
Faculty of Law, Universitas Tarumanegara, Jakarta, Indonesia

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The Due Diligence Gap in Corporate Acquisitions Agnes Sri Fortuna Nainggolan; Ariawan Gunadi
Era Hukum - Jurnal Ilmiah Ilmu Hukum Vol. 23 No. 1 (2025): Era Hukum: Jurnal Ilmiah Ilmu Hukum
Publisher : Faculty of Law - Tarumanagara University

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24912/erahukum.v23i1.38533

Abstract

While mergers and acquisitions have become an important tool for business expansion and corporate reorganization, the legal structure that governs acquisition transactions does not oblige the parties to undertake a full due diligence before closing an acquisition. This regulatory gap generates legal uncertainty since acquiring parties face potential concealed obligations, knowledge asymmetry and governance issues that may arise following the transfer of business control. This article analyzes the legal repercussions of the lack of an obligatory due diligence obligation in corporate acquisitions and discusses the need of responsive legal theory as a normative foundation for legal reform. The research is based on the normative legal technique with statutory, conceptual and comparative methods in an effort to analyze the sufficiency of the present legal framework and its ability to provide preventative legal protection. The results show that the lack of an obligatory due diligence obligation reduces the legal protection of purchasing shareholders, increases the possibility of post-acquisition challenges and does not promote openness, accountability and legal certainty in business transactions. The research also shows that responsive legal theory can serve as an acceptable foundation for the reconstruction of the acquisition regulations by incorporating mandated due diligence as a preventative legal mechanism that suits modern business practices. The study indicates that the introduction of a required due diligence obligation is necessary to provide legal clarity, to reduce the risk of transactions, to promote good corporate governance, and to provide balanced legal protection to all parties involved in corporate acquisitions.
The Secured Creditor's Dilemma Ayu Puspita Sari; Ariawan Gunadi
Era Hukum - Jurnal Ilmiah Ilmu Hukum Vol. 23 No. 2 (2025): Era Hukum: Jurnal Ilmiah Ilmu Hukum
Publisher : Faculty of Law - Tarumanagara University

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24912/erahukum.v23i2.38541

Abstract

Secured creditors occupy a fundamental position in commercial transactions because security rights provide priority in the repayment of debts when debtors fail to fulfil their obligations. This protection becomes more complex when a debtor enters bankruptcy because bankruptcy proceedings impose procedural restrictions on the exercise of secured creditors’ enforcement rights and involve curators in the administration and realization of secured collateral. This study examines the legal certainty of secured creditors’ enforcement rights during Indonesian bankruptcy proceedings and analyzes the legal consequences arising when secured creditors fail to execute their collateral within the statutory period. The study employs normative legal research using statutory, conceptual, and case approaches to examine the interaction between bankruptcy law and the legal principles governing secured transactions. The analysis examines Supreme Court Decision No. 521 K/Pdt.Sus Pailit/2021 and Supreme Court Decision No. 527 K/Pdt.Sus Pailit/2020. The findings demonstrate that Indonesian law formally recognizes secured creditors’ enforcement rights and preferential position, but procedural limitations, curator authority, and differences in judicial interpretation reduce the practical certainty of those rights. Failure to execute collateral within the statutory period may alter the mechanism of collateral realization and increase curator involvement without automatically eliminating the secured creditor’s preferential position over the proceeds. The study concludes that coherent legal interpretation, clearer boundaries between secured creditor and curator authority, and consistent procedural application are essential to strengthening legal certainty, ensuring effective enforcement of security rights, and maintaining the collective objectives of bankruptcy proceedings.