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INDONESIA
Indonesia Law Review (ILREV)
Published by Universitas Indonesia
ISSN : 20888430     EISSN : 23562129     DOI : 10.15742/ilrev
Core Subject : Social,
Law, Crime, Criminology & Criminal Justice
Indonesia Law Review (ILREV) is an open access, double-blind peer-reviewed law journal. It was first published by the Djokosoetono Research Center (DRC) in 2011 to address the lack of scholarly literatures on Indonesian law accessible in English for an international audience. ILREV focuses on recent developments of legal scholarship, covering legal reform and development, contemporary societal issues, as well as institutional change in Indonesia. Realizing the global challenges and ever-increasing legal interaction among developing countries, ILREV also welcomes articles on legal development in the ASEAN region and the larger Global South. By that token, it aims to provide a platform for academic dialogue and exchanges of ideas between scholars and professionals, especially from the Global South. As such, ILREV encourages comparative, multidisciplinary, interdisciplinary, and other approaches to law which can enrich the development of legal scholarship not only in Indonesia but also the Global South as a whole.
Arjuna Subject : Ilmu Sosial - Hukum
Articles 296 Documents
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An Ineffective Institutional Investors Law in Indonesia? Why Bother Lie, Luther; Dewi, Yetty Komalasari
Indonesia Law Review Vol. 11, No. 3
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Abstract

Corporate governance failures are one of the major factors that have crippled the Indonesian economy through financial crises. In response, the OECD has prescribed Principles II and III of the G20/OECD Principles of Corporate Governance to ensure the rights and equitable treatment of all shareholders and the acknowledged role of institutional investors in improving corporate governance. Institutional investors play a significant role as corporate monitors in protecting the public investors’ money and improving corporate financial performance. They are therefore acknowledged as the policies of economic crises, creators of firm values, and drivers of economic development. However, as this paper explains, the existing legal framework of institutional investors in Indonesia is implicit and inadequate to comply with these Principles. It draws hard lessons from, for example, the Malaysian legal framework of institutional investors, which are advanced but flawed, paving for the exceptional 1MDB multibillion dollars of corruption and political mayhems. Stakeholder governance on institutional investors that leaves to private ordering and makes government intervention unnecessary is counterproductive to protect the interests of stakeholders. This paper proposes the rules of the game for institutional investors in Indonesia that could maintain their nimbleness to drive corporate financial performance and economic development.
The Role Of Expropriation Clauses In Protection And Promotion Of Foreign Investments In Renewable Energy: An Essential But Overlooked Legal Consideration Ghaziani, Moosa Akefi; Ghaziani, Mohammad Akefi
Indonesia Law Review Vol. 11, No. 2
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Abstract

Today the world is tackling climate change. The global threat of energy poverty along with the growing need for energy has escalated this crisis. The promotion of renewable energy sources is widely known as the main solution to this challenge. Many International and regional agreements address various aspects of renewable energy development such as trade, transit, security, and investment. Since not all states have the financial and technological abilities to develop this sector, foreign investment is recognised as a crucial prerequisite for the global deployment of renewable energies. Various investment agreements are signed to facilitate and promote investments. These instruments contain a mixture of obligations that have direct or indirect effects. Expropriation provisions which are often crystallised in the form of ‘a duty not to expropriate’ are among these obligations. This article analytically describes the legal aspects of this criterion and proposes trends that can better protect the foreign investments inter alia in this sector; a factor without which the foreign investors are normally reluctant to invest. It is concluded that restricted police power, guarantees of transfer, and a full compensation standard that entails the payment of compound interest are the prominent legal features that can best perform this task.
An Analytical Study on Legal Validity of Online Dispute Resolution (ODR) System in India and Indonesia Nikam, Dr Rahul; Nongthombam, Bangkim Singh
Indonesia Law Review Vol. 12, No. 2
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Abstract

Advancement in technology brought many inevitable changes with more efficiency, making human life easier. Benefit of technology shall be incorporated for effective and efficient justice delivery in dispute resolution mechanism. New development in this area is online arbitration dispute resolutions (ODR) which have been without doubt adopted and practices by justice delivery system across the globe. But the question remains the same as whether justice delivery system is equipped to cope up in the same pace with the changes taking place in the society and technology. Are the existing laws being enough to conduct online system as an effective mechanism to settle disputes among the parties? Keeping in context the preceding query, the present research resorted tracing the laws relevant to the use of ODR mechanism in India and Indonesia, as their present legal framework of arbitration addressing dispute resolution through the ODR mechanism lack specific laws. The present research adopts a mixed method using both primary and secondary data for tracing and comparison the ODR system in India and Indonesia. It is concluded that ODR deliverance are valid and enforceable in the present legal framework of both the countries. Therefore, people must not be doubtful while using ODR mechanism to settle their disputes. It also demonstrates that an ample scope is there in the existing laws of both the countries to accommodate and enhance the overall process and deliverance of ODR mechanism through amendments and separate guidelines.
Sanctioning Ideas: Alternative International Law Argument in Defence of Indonesia’s Ideological Curtailment on Societal Organization Esratian, Billy
Indonesia Law Review Vol. 12, No. 2
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Abstract

Engulfed in a constant ideological challenge from various societal organizations, Indonesia inflicts an ideological curtailment measure as an attempt to defend the reign of its state ideology, Pancasila. To this end, societal organization is barred to actively adopt, develop, and spread any teaching or idea which contradicts Pancasila. From international law standpoint, assertion over the measure’s incompatibility with human rights norms emerges. Although, a portion of the justification conveyed by the Government of Indonesia did stipulate a reference to international human rights law regime by virtue of the invocation of state of emergency and a presumably regional norm, such defence is shaky at best when being confronted with the temporal nature of state of emergency and the high threshold to ascertain a regional customary international law. This Article, therefore, proposes an alternative defence for such curtailment measure from international law perspective. In doing so, this Article will first delve to pinpoint the ideological issue within the corpus of international law. Subsequently, by navigating through international conventions and jurisprudences, it will establish conceivable justifications for Indonesia’s ideological curtailment. Finally, this Article will also observe the looming challenges and opportunities as Indonesia embraces a restrictive approach to societal organization existing under its jurisdiction.
Rediscovery of The Living Law in Natural Disaster Mitigation in Majene Regency, West Sulawesi Province, Indonesia Bakri, Rahmat; Sulbadana, Sulbadana; Saharuddin3, Saharuddin; Ahmad, Asria Wayuni
Indonesia Law Review Vol. 12, No. 2
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Abstract

The living law and state law are two schools of law that are always dialectical in the development of law in a country. If the two can be synergized properly, then the legal function will run effectively and the legal objectives will be achieved. In the context of natural disaster mitigation in Indonesia, the synergy between the living law and state law can be proposed as a solution to streamline the various existing laws. This study aims to reidentify natural disaster mitigation models a previous result of the collective creativity of the people of Totolisi Sendana Village, Majene Regency, West Sulawesi Province in responding to the 1969 earthquake and tsunami. As a living law, mitigation models that have been institutionalized can remain relevant in the face of similar events in the future as long as they are adapted to the dynamics of community development and integrated with various positive laws established by the state.
THE NON-APPLICATIONS OF GOOD FAITH, TRUST, AND CONFIDENTIALITY IN ARBITRATION: A STUDY OF THE ANNULMENT CASES IN INDONESIA Roosdiono, Anangga W.; Taqwa, Muhamad Dzadit; Salsabila, Mayta Ciara
Indonesia Law Review Vol. 12, No. 2
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Abstract

Arbitration is a dispute resolution method that is chosen by the parties for, mainly, avoiding weaknesses of resolving disputes through the general court. It has three principles, that strongly connect to one another, to hold: good faith, trust, and confidentiality. These principles determine whether a dispute resolution through arbitration will be successful. However, in many - if not all - cases, many disputing parties still do not maintain these principles. This reality can be observed in annulment cases. Although the annulment mechanism renders a protection to the parties from the errors made by intention, this mechanism opens an opportunity for these people just to pause the execution of the arbitral awards, makes their cases become open for the public, and even puts the final-and-binding status of the awards in question. On the other hand, there are still a few cases showing that such errors, made by the tribunals or the winning parties, occurred. From these cases, this paper is to question whether the existence of annulment is the key factor of the non-applications of these three principles or the tool to prevent the non-applications. First, a descriptive comprehension of these principles is elaborated. Afterwards, the annulment mechanism, provided by Article 70 of Law 30 of 1999 on Arbitration and Alternative Dispute Resolutions, is comprehended to see its nature and practical implications. At the end, some annulment cases are dissected to answer the research question.
Most Favoured Nation Clause: Unleashing its Legal Potential in Favour of Foreign Investors in Renewable Energy Sector Ghaziani, Mohammad Akefi; Ghaziani, Vahid Akefi; Ghaziani, Moosa Akefi, Dr.
Indonesia Law Review Vol. 12, No. 2
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Abstract

International Investment Law and other international legal systems, such as trade law and environmental law have interactions and dynamic interrelationships in meeting global challenges including energy security, climate change, and the need for the renewable energy transition. They help in delivering the principles of justice in the context of changing global values and legal practices. Accordingly, they have a potential share in the global climate change mitigation agenda through innovative policies and regulations, inter alia, to facilitate and promote foreign investment and trade in the renewable energy sector. Similarly, these systems have common principles in their respective agreements. The Most-Favoured Nation Treatment (MFN) is among these. Hence to analyse the potential role of MFN in the context of the renewable energy transition is significant. This article sheds light on this dilemma by expounding on the concept of MFN, analysing the MFN clauses under IIAs, and its relevance in terms of renewable energy investment protection. It concludes that the application of MFN has been especially problematic since it is incorporated somewhat differently in the international investment and trade regimes. While it is one of the basic principles of WTO, it remains among the least successful provisions in investor-State arbitration. Despite its nearly ubiquitous usage, the interpretation of the MFN clause and its scope of application has been disputable so far. IIAs contain different MFN clauses with various exemptions, and the arbitral practice has demonstrated several divergent decisions that other tribunals and legal scholars feel should be subject to a more focused review.
IMPLICATIONS OF NON-EXCLUSIVE CHOICE OF FORUM CLAUSES IN DETERMINING THE COMPETENT DISPUTE RESOLUTION FORUM IN INDONESIA Vickya, Alvansa; Allagan, Tiurma M.P.
Indonesia Law Review Vol. 12, No. 1
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Abstract

This research aims to analyze the implications of a non-exclusive choice of forum clause in determining the competent dispute resolution forum in Indonesia based on theories related to Private International Law, International Contract Law, and International Civil Procedure Law. Based on the results of this research, the implications of the non-exclusive choice of forum clause in determining the competent dispute resolution forum in Indonesia have not been fully regulated by Indonesian laws and regulations. This can be seen from the use of the doctrines of forum non conveniens, lis pendens, and res judicata, the three of which are still not contained in the laws and regulations in Indonesia, even though there are already doctrines implied in Article 118 of HIR, namely the basis of presence and the principle of effectiveness. This shows that there is no legal certainty regarding a dispute in which the parties have a non-exclusive choice of forum. Therefore, it would be better if Indonesia had a written law about Private International Law and ratified the Hague Choice of Court Convention 2005 to provide certainty, justice, and legal benefits for every party who will act in the civil and commercial law field, especially in disputes arising from international contracts in which there is a non-exclusive choice of forum.
CHOICE-OF-LAW PRINCIPLES IN INHERITANCE RELATIONS INVOLVING FOREIGN ELEMENT(S) UNDER VIETNAMESE PRIVATE INTERNATIONAL LAW Khoi, Nguyen Phan; Huong, Bui Thi My
Indonesia Law Review
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Abstract

Inheritance relations with a foreign element(s) are a part of civil relations with a foreign element(s) and are governed by Vietnamese private international law. This article aims to introduce the general principle and its supporting principles in the choice-of-law rules applicable to inheritance relations with a foreign element(s) under the private international law of Vietnam. In addition, the authors also look into the relevant regulations in the Law of the People’s Republic of China on the Law applicable to Foreign-related civil relations and the most recent draft of Private International Law of Indonesia3 to review the trend of national laws concerning matters of inheritance relations involving foreign element(s). Based on that analysis, the authors point out some inadequacies in Vietnamese private international law on matters such as the unclear scope of exercising inheritance rights on immovable assets and the uncertain meaning of the rule to choose “law of the closest connection” as the applicable law. With regard to the first question, the authors suggest that the exercise of inheritance rights over immovable properties should only be considered after a person has inherited the estate, thus he becomes the owner of the property and exercises his rights related to the property. In reference to the second question, it is suggested that the “law of the closest connection” should be the law of the country where the immovable property is located; however, if the estate does not include any immovable property, the “law of the closest connection” is the law of the country where all or most of the property is situated
THE CONCEPT OF “ELDERLY CITIZENS” IN THE INDONESIAN CONSTITUTION: A CRITICAL ANALYSIS Hertanto, Ari Wahyudi; Arinanto, Satya; Rizal, Jufrina
Indonesia Law Review Vol. 12, No. 3
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Abstract

Human existence is the most important element of the law and the state. They contribute greatly to the growth and development of a nation. Despite their great contribution, all human beings will experience a gradual decrease in their physical and psychological capacity due to ageing. According to the latest Central Statistics Agency report, there exists 29.3 million elderly citizens in Indonesia. This figure is equivalent to 10.82% of the total population. To anticipate this demographic condition, the government ought to ensure the welfare of its elderly citizens in accordance with the mandate of the 1945 Constitution. However, the 1945 Constitution does not specifically regulate the term “elderly citizen”. Human beings who are considered as legal subjects under the 1945 Constitution are simply referred to as “citizen.” The term “elderly citizen” can only be found under Law Number 13 of 1998 concerning the Welfare of Elderly Citizens. Although the law is intended to provide sufficient social and legal protection to elderly citizens, it has not yet to grasp the essence of elderly citizen as an overall legal subject. This is indicated by the use of the term “Potential Elderly Citizen” and “Non-Potential Elderly Citizen” in its provisions. Therefore, a more in-depth legal study regarding human beings (elderly citizens) as an overall legal subjects is required. This article tries to answer how elderly citizens are viewed theoretically as legal subjects, how the 1945 Constitution regulates elderly citizens as overall legal subjects, and how the concept of elderly citizens is critically interpreted as a form of reorientation.

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