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All Journal Brawijaya Law Journal : Journal of Legal Studies Indonesian Journal of Law and Society Indonesian Journal of International Law
Permana, Rizky Banyualam
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Law, Crime, Criminology & Criminal Justice Social Sciences

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Achieving Multilateral Investment Court Through EU-ASEAN Expansion of Bilateral Investment ‘Court’: Is It Possible? Permana, Rizky Banyualam
Indonesian Journal of International Law
Publisher : UI Scholars Hub

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (413.899 KB)

Abstract

Legitimacy of international investment law is in crisis. One particular area of international investment law that has been progressively re-developed is the area of investment dispute settlement. The EU sees the multilateral investment court as a proper solution to reform ISDS in the future. To achieve this final goal, starting from the bilateral level, the EU has included investment court provisions as an ISDS mechanism in its latest trade and investment agreement with its trading partners, among others, EU-Viet Nam FTA and IPA, as well as EU-Singapore FTA & IPA. This paper addresses central questions on how could existing investment court system in EU and ASEAN member states’ Investment Protection Agreements (IPA) can be expanded towards multilateral investment court in the future, and what are the challenges that can be expected from such expansion. It critically analyses concluded agreements between the EU and some of ASEAN Member States. I argue that for now, it is unlikely that multilateral investment court expansion will happen soon considering the challenges and concerns expressed by both sides.
Sustainable Development as a Legal Argument for the Global South Permana, Rizky Banyualam; Juwana, Hikmahanto; Afriansyah, Arie
Indonesian Journal of Law and Society Vol 5 No 2 (2024): Indigenous Human Rights and the Cultural Resistance
Publisher : Faculty of Law, University of Jember, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19184/ijls.v5i2.45427

Abstract

The concept "trade and sustainable development" is often associated with and can be traced to the Global North. However, there is a paradigmatic change in the employment of the concept as legal argument in the context of trade dispute. This paper especially focuses on the Indonesia – Raw Minerals dispute. In the WTO dispute concerning Indonesia's raw minerals export ban, the European Union (EU) challenged Indonesia over its export restrictions and Domestic Processing Requirement (DPR). Rather than invoking Article XX(g) of the GATT 1994, which addresses the conservation of exhaustible natural resources—a common approach among WTO members—Indonesia chose to rely on Article XX(d) of the GATT 1994. This article justifies trade restrictions necessary to fulfill WTO-compliant obligations, including the imperative to promote sustainable development in the minerals sector. Although Indonesia ultimately lost the dispute, its use of sustainable development as a defensive strategy merits examination. This paper analyses the narrative techniques Indonesia employed to defend its export restrictions and DPR measures in the WTO proceedings. Drawing on the “Neo” New Haven School perspective which emphasises critical perspective on international law, the paper views the dispute through the lens of “international law as language.” This approach posits that international law is intertwined with political realities and serves as a communicative tool for international actors to engage within the global community. Ultimately, this paper argues that Indonesia's invocation of "sustainable development" reflects legal mimicry, demonstrating how terminology originating from the Global North is now being appropriated as a legal argument by the Global South to empower them.
Strengthening Indonesia’s Strategic Trade Management Regulation Against Proliferation of Weapons of Mass Destruction Purnama, Hadi Rahmat; Permana, Rizky Banyualam; Afriansyah, Arie
Brawijaya Law Journal Vol. 11 No. 1 (2024): Economic Law
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2024.011.01.01

Abstract

International law governing the control of WMD proliferation cannot solely focus on state actors but must also include non-state actors. To address the risks and combat the proliferation of WMD by non-state actors through the ordinary course of trade, the UNSC issued Resolution 1540, which contains the obligation to adopt domestic policies to prevent WMD proliferation. Indonesia has a legal obligation to comply with and implement this resolution under international law. This paper discusses the need assessment for Indonesia to enact a solid regulatory framework to implement Strategic Trade Management (STM). This paper questions how STM regulations are governed in the Indonesian context presently and how they should be regulated better to accommodate contemporary dynamics. This study is a legal and policy study involving literature review or desk research. Literature review involves gathering data and information such as literary texts, policy papers, legislative regulations, and other relevant documents.  This study finds that even though Indonesia had already implemented some form of STM policy through export-import control and restriction (larangan dan pembatasan), it still left out the gap in properly regulating dual-use goods. Strategic goods regulation in Indonesian legislation is not intended in the context of dual-use goods, as export/import restrictions are designed to enhance Indonesia’s product competitiveness and market expansion, both domestically and internationally, increase the capabilities of exporters/importers, and enhance national product development and innovation. Implementation of STM policy One of the objectives that can be achieved is maintaining national security, especially in providing a sense of security for the Indonesian people and businesses. Implementing STM will also benefit businesses by reducing the risk of financial losses, such as being involved in export/import transactions prohibited by other countries or even by Indonesia. Moreover, by implementing STM, it is not unlikely that investment from countries with high technology will increase.
Co-Authors Arie Afriansyah Hadi Rahmat Purnama, Hadi Rahmat Hikmahanto Juwana