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All Journal DE JURE Diponegoro Law Review Sriwijaya Law Review Jurnal Bina Mulia Hukum JURNAL PEMBANGUNAN HUKUM INDONESIA The Indonesian Journal of International Clinical Legal Education JKPBL (Jurnal Kesehatan Panca Bhakti Lampung) Indonesian Journal of International Law Yuridika Jurnal Hukum dan Pembangunan The Indonesian Journal of International Clinical Legal Education Jurnal Jurisprudence
Herliana Herliana
Faculty Of Law, Universitas Gadjah Mada
Decision Sciences, Operations Research & Management Education Health Professions Law, Crime, Criminology & Criminal Justice Social Sciences

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ASEAN SYNERGY TO OVERCOME CHALLENGES IN INVESTMENT ARBITRATION Herliana, Herliana
Indonesian Journal of International Law
Publisher : UI Scholars Hub

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (319.725 KB)

Abstract

Cambodia, Indonesia, Lao, Malaysia, Thailand, and the Philippines, have been sued by foreign investors through international investment arbitrations (IIA). No matter whether the outcome is favorable or not, those countries have spend significant time, energy, and financial resources to arbitrate. ASEAN countries are not in advantageous position in IIA.The first and the most obvious reason is language barrier. Arbitration proceedins are mainly conducted in English. Consequently, the arbitrators and counsels more often than not come from English speaking countries. Not only do they lead to high cost, but also they lack of familiarity with South East Asia’s social, politics, economic, culture and customs. This may influence how they treat the cases such as the interpretation of provisions specifically designed to protect foreign investors such as: national treatment; fair and equitable treatment; most favored nation; and also in deciding jurisdictional issues. regional news as a legal basis for foreign investment activities aim to provide protection for foreign investor. On the other hand, it also serves as a mean to facilitate economic development in the host states of investment. Unfortunately, BITs often contain excessive and limitless protection clauses in order to attract foreign investors. This may endanger host states position as it can be used as a weapon by the investors to sue the host states. In responding to this fact, it is necessary to strengthen cooperation among ASEAN members in dealing with foreign investors through BIT. The ideal picture will be that SEA is pro-market and pro-arbitration reform. It is unavoidable that in order to protect themselves from harsh investors as well as intricate arbitration, ASEAN would be better off having its own investment arbitration center run by its experts. Thus, the short-term challenge is to equip legal practitioners, business players and academicians with more knowledge, skills and experiences in dealing with investment disputes. The long-term step will be to negotiate model of investment treaties applicable in the region and to harmonize national investment laws. These efforts are strategic opportunities for ASEAN as single market to keep balance between promoting investment, protecting investors and the host states at the same time.
INCONSISTENCIES IN ICSID AWARDS ON DISPUTES RELATED TO MFN AND UMBRELLA CLAUSE Herliana Herliana
Diponegoro Law Review Vol 6, No 2 (2021): Diponegoro Law Review October 2021
Publisher : Fakultas Hukum, Universitas Diponegoro

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (831.186 KB) | DOI: 10.14710/dilrev.6.2.2021.247-264

Abstract

Investment arbitration has been acclaimed as an important part of Foreign Direct Investment (FDI) movement around the globe because it provides a neutral and trustable forum for settling investment dispute. However, many argue that investment arbitration often becomes advocates of foreign investors and neglect the developing country’s interests as the host of investment. This paper aims at studying the investment arbitration awards rendered by International Center for Settlement of Investment Dispute (ICSID) tribunals launched against developing countries. The question is whether and to what extent those awards have equally observed the interests of foreign investors and host states of investments. To answer the questions, this paper employs case study method and use publicly available ICSID cases. This research shows that some ICSID tribunals have inconsistent reasoning which led to contradictory decisions. Apparently, as some cases indicate ICSID tribunals gave more weight to the need to protect foreign investors rather than host countries’ development interests. As a consequence, inconsistency and ambiguity have led to uncertainty and unpredictability of the forum. This is not only disadvantaged the parties due to inability to foresee the likely outcome of the disputes but also endanger the ICSID tribunals’ credibility as neutral and reliable forum.
NALAR MAZHAB SOSIOLOGIS DALAM PENEMUAN HUKUM YANG BERKEADILAN OLEH HAKIM Widowati, Christiani; Herliana, Herliana
Jurnal Hukum & Pembangunan
Publisher : UI Scholars Hub

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Abstract

The issue of justice is a philosophical and contemporary issue. As a philosophical study, justice is examined from several schools of thoughts within the philosophy of law. This study focuses on the sociological jurisprudence discipline which basically states that law as a social norm which is inseparable from the values prevailing in a society because there is a close correlation between law and society. In relation to judicial authority, the denotation of justice in the judge's decision is that it should be in accordance with the law prevailing in the community. This research was conducted through the statute approach method by collecting and analyzing laws and regulations related to the focus of this study, complemented by a conceptual approach based on the legal principles found in the laws and regulations and legal doctrines. Thus, it is perceivable that the sociological jurisprudence is the synthesis of the dialectical studies between normative and positivist views on the legal findings made by judges by interpreting justice as an accord between judges' decisions and legal values living in the society.
ACTOR SEQUITUR FORUM REI: A THEORITICAL STUDY Sujayadi, Sujayadi; Wijayanta, Tata; Herliana, Herliana
Jurnal Bina Mulia Hukum Vol. 7 No. 2 (2023): Jurnal Bina Mulia Hukum Volume 7 Number 2 March 2023
Publisher : Faculty of Law Universitas Padjadjaran

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.23920/jbmh.v7i2.896

Abstract

The actor sequitur forum rei principle is the primary basis for determining the relative competence of civil courts in countries that adopt civil law systems. In this article, the role of the actor sequitur forum rei will be examined theoretically by analyzing theories related to personal jurisdiction, categorization of jurisdiction, and procedural justice theory. The analysis results indicate that actor sequitur forum rei is founded on the theory of power and is classified as a "connected" jurisdiction with a general nature, as jurisdiction is linked to the defendant's domicile. It enables the defendant to be sued in the forum of their domicile at any time and for any reason. Additionally, according to procedural justice theory, actor sequitur forum rei is shown to provide the defendant with protective aspects.
Enhancing ADR through Collaborative Clinical Legal Education: Law Schools and BANI's Optimized Partnership in Indonesia Herliana, Herliana; Mubdi, Umar; Sempurno, Arief; Syifa, Erma Nuzulia
The Indonesian Journal of International Clinical Legal Education Vol 5 No 2 (2023): Legal Education in Current Development: Problems and Challenges
Publisher : Faculty of Law Universitas Negeri Semarang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.15294/ijicle.v5i2.67001

Abstract

This article endeavors to seamlessly incorporate the teaching of Alternative Dispute Resolution (ADR) directly into the framework of Clinical Legal Education (CLE), utilizing collaboration with esteemed dispute settlement institutions, notably the Indonesian Arbitration Center (BANI) and the Indonesian National Mediation Center (PMN). The imperative for such integration is underscored by the heightened demand for skilled arbitrators and mediators, given the ubiquitous inclusion of ADR clauses in nearly every contractual arrangement. In the contemporary legal landscape where ADR clauses have become standard practice for resolving disputes arising from contractual relationships, the professional roles of arbitrators and mediators are indispensable. The significance of this initiative lies in recognizing that the success of CLE in ADR in Indonesia necessitates a fundamental shift in the mindset of the legal community. It is asserted that the conventional teaching methods, traditionally confined to the classroom, are insufficient for the cultivation of skills pertinent to amicable dispute resolution. Thus, the article advocates for the active involvement of professional arbitrators and mediators, calling for their comprehensive integration and support not only within law school curricula but also in the broader community. This transformative approach aims to bridge the practical gap between theoretical instruction and real-world application, envisioning a legal education system that produces professionals adept at ethical and effective dispute resolution in Indonesia.
Maqasid al-Sharia in Court-Mediation Reform: A Study on Efficiency and Social Justice in Medical Disputes Herliana, Herliana
De Jure: Jurnal Hukum dan Syari'ah Vol 15, No 2 (2023)
Publisher : Shariah Faculty UIN Maulana Malik Ibrahim Malang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18860/j-fsh.v15i2.23962

Abstract

Islam prioritises peace as a means of resolving disputes. Peace between parties can be achieved in various ways, one of which is mediation. Despite creating social justice, the effectiveness of mediation in resolving various complex civil cases is still questionable. This article aims to analyse the efficiency of resolving medical disputes through mediation based on the principles of Islamic law. This article is based on the results of normative juridical research with a statutory approach and a conceptual approach. The results of this study found that the implementation of facilitative mediation by the mediator in medical dispute resolution helps improve its efficiency. Furthermore, before mediating conflicts, judge-mediators need to take a more proactive position, improve their communication skills, and have sufficient knowledge of health law. A well-informed mediator is likely to provide social justice for doctors and patients. Keywords: mediation; medical disputes; social justice; court.
Third-Party Litigation Funding: Legal Feasibility and Insights from Australia, the UK, and the US for Expanding Access to Justice in Indonesia Herliana, Herliana
Sriwijaya Law Review Volume 9 Issue 1, January 2025
Publisher : Faculty of Law, Sriwijaya University, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.28946/slrev.Vol9.Iss1.3444.pp173-193

Abstract

Access to justice is often hindered by financial constraints, preventing plaintiffs from pursuing legal claims. Third-Party Litigation Funding (TPLF) offers a potential solution by allowing external funders to finance litigation in exchange for a share of any awarded damages or settlement. By covering litigation costs, TPLF enables financially disadvantaged plaintiffs to seek legal redress, making it a crucial mechanism for expanding access to justice. However, unregulated TPLF poses risks, including the encouragement of frivolous claims, ethical concerns, and profit-driven motivations that may override legal merit. Indonesia currently lacks specific regulations governing TPLF, raising questions about its legal permissibility and practical implementation. This study examines TPLF frameworks in Australia, the United Kingdom, and the United States to derive insights that may inform the development of TPLF practices in Indonesia. Utilizing a normative legal research methodology based on secondary data, the study explores the opportunities and challenges of introducing TPLF into the Indonesian legal system. The findings indicate that while TPLF can be legally accepted in Indonesia, its application should be restricted to cases with broad public interest, such as environmental and consumer litigation. Furthermore, Indonesia’s ongoing efforts to enhance access to justice and the absence of explicit legal prohibitions present opportunities for the regulated adoption of TPLF. This research contributes to the discourse on litigation funding by providing recommendations for policymakers, legal practitioners, and stakeholders in shaping a fair and regulated TPLF framework in Indonesia.
Integrating Artificial Intelligence in Indonesia’s Arbitration: Navigating Legal and Political Challenges Herliana, Herliana; Widowati, Dyah Ayu
Yuridika Vol. 40 No. 2 (2025): Volume 40 No 2 May 2025
Publisher : Universitas Airlangga

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.20473/ydk.v40i2.62700

Abstract

As Indonesia explores the integration of artificial intelligence (AI) into its arbitration processes, it faces a complex landscape of challenges and opportunities. This study investigates how AI can enhance efficiency, transparency, and decision-making in arbitration, while also addressing significant legal and political concerns. From a legal perspective, the use of AI in arbitration raises issues of compatibility with existing laws, the need for ethical guidelines, and the protection of data privacy. Politically, the adoption of AI is influenced by the potential for shifting power dynamics, regulatory concerns, and the broader implications for national sovereignty and international relations. Through a detailed analysis of these factors, the study aims to provide insights into how Indonesia can effectively navigate the integration of AI in arbitration, balancing technological advancements with legal and political considerations. By offering recommendations for addressing these challenges, the research seeks to contribute to the development of a robust framework for AI-driven arbitration in Indonesia. This research finds that the legal political landscape influences how AI is regulated, with potential resistance from established legal institutions or political entities concerned about losing control or influence. From a legal perspective, AI systems can minimize biases or inaccuracies and potentially improve the impartiality and fairness of arbitration decisions. Current regulations may not fully address the unique challenges posed by AI, necessitating updates or new legislation to govern AI use in arbitration. It is therefore important to engage with political and legal stakeholders to address concerns and build consensus on the adoption of AI in arbitration.
Ensuring Certainty through Legal Reasoning: What Can Indonesia Learn from the United Kingdom and the Unites States? Herliana, Herliana
Jurnal Jurisprudence Vol. 13, No. 2, December 2023
Publisher : Universitas Muhammadiyah Surakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.23917/jurisprudence.v13i2.3057

Abstract

Purpose of the study : This study analyzes the principle and methodologies of legal reasoning by judges in the United Kingdom and the United States. Legal reasoning ensures legal certainty by promoting consistency, predictability, transparency, and adherence to legal principles and precedents. Legal reasoning provides a structured and principled approach to judicial decision making. The Indonesian legal system which predominantly follows a civil law tradition, stands to gain valuable insights from these common law models. Learning from common law models of legal reasoning can be used to overcome the existing problems with Indonesian judgment which considered to be lacking legal certainty. Methodology: This study is primarily normative legal research design to analyze and contrast legal reasoning practices in the United Kingdom and the United States. Results : This paper finds that elements of common law legal reasoning that can be implemented in Indonesia are the requirement for judge to provide ratio decidendi and obiter dicta in the court decision. The lesson Indonesia can learn from legal reasoning done by judges in the UK and the US are that Indonesian judges should not put the parties’ argument in their decision. Rather, the judges only need to focus on their own reason to be written in the judgment. In addition, Indonesian judges should not be too formalistic as this can result in a strict law enforcement without considering broader policy considerations or context. This paper posits that Indonesia's path to legal certainty lies in the consistency of legal reasoning in court judgment.  The experiences of the United Kingdom and the United States, when thoughtfully adapted, promise a brighter future for Indonesian judiciary in which legal certainty thrives and justice prevails. Applications of this study : This analysis can provide insight into how the UK and the US that follow a common law system approach, provide takeaways or lessons that Indonesia can apply in order to ensure the principle of legal uncertainty. Novelty/ Originality of this study: This research offers a novel point of view on how the problem of lack of legal certainty in Indonesian judiciary can be overcome by implementing elements in the common law system. The author did not find any studies which use the United Kingdom and the United States approaches to legal reasoning as case studies to be learned from when Indonesia is about to ensure legal certainty. Therefore, this research provide a novelty in the field of Jurisprudence. ABSTRAK Tujuan: Tujuan penlitian ini adalah menganalisis asas dan metodologi penalaran hukum yang dilakukan oleh hakim di Inggris dan Amerika Serikat. Penalaran hukum merupakan unsur yang penting dalam  kepastian hukum karena dengan penalaran putusan hakim dapat memberikan konsistensi dan prediktabilitas, transparansi dan kepatuhan terhadap asas hukum dan yurisprudensi. Penalaran hukum memberikan panduan structural dalam putusan hakim. Sistem hukum Indonesia yang mengikuti civil law system dapat mengambil manfaat dari common law system yang berlau di Inggris dan Amerika Serikat. Dengan mempelajari system di dua negara tersebut, penalaran hukum dapat digunakan untuk mengatasi masalah kurnagnya kepastian hukum di Indonesia.     Metodologi: Penelitian ini adalah penelitian hukum normative yang didesain untuk menganalisis dan membandingkan praktek penalaran hukum di Inggris dan Amerika Serikat. Temuan:   Hasil penelitian ini menunjukkan bahwa elemen dari penalaran hukum di system common law yang dapat diterapkan di Indonesia adalah keharusan bagi hakim untuk mencantumkan ratio decidendi dan obitur dicta. Pelajaran yang dapat diambil oleh Indonesia dari penalaran hukum di Inggris dan Amerika Serikat adalah bahwa putusan hakim tidak perlu memuat argumen para pihak secara keseluruhan karena hakim seharusnya fokus pada penalaran hukum, memberikan argumentasinya sendiri. Selain itu, dalam memutus perkara, hakim tidak bersikap terlalu formalistik karena hal itu akan mengesampingkan konteks perkara dan pertimbangan lain. Hal ini akan memberikan kepastian hukum. Penelitian ini menunjukkan bahwa apabila Indonesia ingin mewujudkan kepastian hukum salah satunya dapat dicapai melalui penalaran hukum. Pengalama Inggris dan Amerika Serikat bila diterapkan dapat memberikan masa depan yang lebih baik bagi penegakan hukum di Indonesia dimana kepastian dan keadilan hukum dijunjung tinggi. Kata kunci: Kepastian hukum, Penalaran hukum, system common law, system civil law
Reconstruction of Arbitration Agreement Arrangements to Prevent Pathological Arbitration Clauses in Indonesia Nugrahenti, Meydora Cahya; Herliana, Herliana; Sugiharti, Rr. Retno
Jurnal Pembangunan Hukum Indonesia Volume 7, Nomor 3, Tahun 2025
Publisher : PROGRAM STUDI MAGISTER HUKUM FAKULTAS HUKUM UNIVERSITAS DIPONEGORO

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.14710/jphi.v7i3.%p

Abstract

Pathological arbitration clauses can hinder the arbitration process and open up opportunities for the parties to avoid arbitration or challenge its decision. These clauses may arise due to deliberate intent or a lack of understanding on the part of the parties. Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution (AAPS Law) does regulate arbitration agreements, but it is not comprehensive in preventing the emergence of pathological clauses. This study aims to identify forms of pathological arbitration clauses that hinder the effectiveness of arbitration and to formulate a reconstruction of arbitration agreement regulations to prevent them in Indonesia. The research method used is juridical-normative with an emphasis on legal norms as the main object. The data used consists of primary and secondary legal materials through legislative, analytical, comparative, and conceptual approaches. The results of the study show that pathological arbitration clauses hinder arbitration because they contain ambiguities, such as unclear arbitration authority to resolve disputes, the existence of options for the parties to choose a court, and the appointment of unavailable arbitrators. To prevent pathological arbitration clauses, Article 9 of the AAPS Law needs to be reconstructed by including arbitration clause regulations that explicitly state the authority of arbitration without exception. The conclusion of this study is that there are pathological clauses in the agreement and therefore the reconstruction of Article 9 of the AAPS Law is carried out by providing legal certainty on the pactum de compromittendo in the arbitration agreement.
Co-Authors Arief Sempurno Christiani Widowati Dyah Ayu Widowati Erma Nuzulia Syifa Hariyanto Hariyanto Irna Nurhayati Kusuma Raditya Laurensia Andrini M. Hawin Mubdi, Umar Muhammad Rifky Wicaksono Novi Eniastina Jasa Nugrahenti, Meydora Cahya Paripurna Sugarda Rahmah Fitria Sempurno, Arief Sugiharti, Rr. Retno Sujayadi ., Sujayadi Syifa, Erma Nuzulia Tata Wijayanta