cover
Article Per Year (5 Year)
All
Home Page
OAI Link
Editorial Team
Contact
Reviewer
Google Scholar
Contact Name
-
Contact Email
-
Phone
-
Journal Mail Official
-
Editorial Address
-
Location
Kota malang,
Jawa timur
INDONESIA
Brawijaya Law Journal : Journal of Legal Studies
Published by Universitas Brawijaya
ISSN : 23564512     EISSN : 25030841     DOI : -
Core Subject : Social,
Law, Crime, Criminology & Criminal Justice
BRAWIJAYA LAW JOURNAL, Journal of Legal Studies Brawijaya Law Journal (BLJ) is a newly established journal in the field of legal studies. The Journal is published annually by Law Faculty Brawijaya University, Indonesia. BLJ is an open access, peer-reviewed e-journal which aims to offer an international scientific platform for national as well as cross-border legal research. The materials published include major academic papers dealing critically with various aspects and field of laws as well as shorter papers such as recently published book review and notes on topical issues of law. Printed version of the series can be printed on demand (POD). The website of the journal can be accessed through lawjournal.ub.ac.id
Arjuna Subject : -
Articles 287 Documents
 20   21   22   23   24 
Discourse Interpretation of Public Policy in the Context of Enforcement of Foreign Arbitral Awards in Indonesia Saraswati, AAA Nanda; Hidayat, Choirul
Brawijaya Law Journal Vol. 6 No. 1 (2019): Alternative Dispute Resolution
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2019.006.01.04

Abstract

The use of the concept of "public policy" by the national judiciary as a basis for the refusal of recognition and enforcement of foreign arbitral awards leaves an issue in the Indonesian judicial system. The main problem often questioned by the international community is that Indonesia refuses to enforce and even reject foreign arbitral awards on the grounds of violating public policy. This paper aims to analyze the interpretation of the concept of public policy used by judges as one of the reasons for the refusal of the recognition and enforcement of foreign arbitral awards and whether such interpretation is in accordance with international standards. The results shows that Indonesian courts tend to use a "domestic" approach when interpreting public policy namely as a provision and principles of law and national interests, rather than the international standard approach. Such approach have raised a number of critics from other countries. Not only because it is not in accordance with the values and principles of international law, but the interpretation is considered not to prioritize the purpose of the New York Convention, namely facilitating the recognition and enforcement of foreign arbitral awards
Arbitration Mechanisms in Settlement of Maritime Disputes in Nigeria: Challenges and Prospects Babatunde, Ekundayo O
Brawijaya Law Journal Vol. 6 No. 1 (2019): Alternative Dispute Resolution
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2019.006.01.01

Abstract

The maritime industry is globally recognized as one of the most economically viable industry capable of facilitating sustainable development thus, amicable settlement of maritime disputes is paramount to guarantee unhindered trade and commerce environment. Arbitration is an age-long Alternative Dispute Resolution (ADR) mechanism applied in the amicable settlement of disputes in a relaxed and semi-formal environment. It is particularly suitable for resolving commercial disputes because of the enforceability of arbitral awards as depicted by the existing international arbitral jurisprudence. Various law of the Sea tribunals such as the International Tribunal for the Law of the Sea (ITLOS) or an ad hoc panels expressly recognizes arbitration as one of the models for settlement of disputes as a suitable alternative to litigation. In Africa, as nations recover from the era of ocean blindness, maritime practice and administration is prioritized to aid economic growth. The objective of this study is to evaluate application of arbitration as an ADR mechanism for settling maritime disputes in Nigeria's maritime practices with the aim of identifying the challenges confronting Nigerian's involvement in maritime business, particularly as it relates to application of Arbitration to dispute settlement. It was found that there are certain loopholes in relevant laws which work hardship against local businesses in cases of maritime disputes settlement. The study suggests viable solutions based on lessons from other climes to create level playing field for parties who opt for arbitration to settle maritime related disputes.
The Supremacy of the Dispute Settlement Mechanism (DSM) under the World Trade Organization (WTO) Widiatedja, I Gusti Ngurah Parikesit
Brawijaya Law Journal Vol. 6 No. 1 (2019): Alternative Dispute Resolution
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2019.006.01.05

Abstract

The existence of inequality and poverty in some countries doubted the contribution of the WTO. The overwhelming spirit of national interest through the imposition of discriminatory and protective measures has deteriorated the WTO. Given its role for enforcing trade commitments, the dispute settlement mechanism is crucial to save the future of WTO. This paper aims to analyse the existence of the dispute settlement mechanism of WTO, whether it is still supreme in upholding the vision of trade liberalization. This paper argues that the supremacy of this mechanism has ensured the future of WTO by looking at two parameters. Firstly, it has a ruled-based character with a high level of legalism. Next, by looking at the decision of the Panel and the Appellate Body, the dispute settlement mechanism has effectively controlled the overwhelming spirit of national interest. This mechanism shows its supremacy by limiting the capacity of the WTO member states to impose discriminatory and protective measures, particularly related to public morals exception and cultural concern.
Development of Non-Litigation Civil Dispute Settlement Model Based on Madurese Local Wisdom to Reduce Cases Accumulation in Court Hasanah, Uswatun; Hamzah, Mohammad Amir; Winarwati, Indien
Brawijaya Law Journal Vol. 6 No. 1 (2019): Alternative Dispute Resolution
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2019.006.01.09

Abstract

Madurese community prefer to settle civil disputes outside the court by generating peace between the parties in the form of undertable bond, while the mediation results outside the court, the legality is weak. In this regard, this study would like to produce model of non-litigation civil dispute settlement that guarantees binding force of settlement so have binding strength as well as dispute settlement through mediators in court. This research is normative-qualitative research, so the method is combination of legal research methods and sociological research methods. The study results indicate that the mechanism to settle civil disputes in Madura is carried out peacefully through consensus meetings with the mediators help. The mediation has the binding power of customary law because it is based on the voluntary willingness of the parties, carried out through deliberation. This is in line with the local wisdom values such as the value of maintaining "shame" and the value of respect for parents, ulama (Keyae), and leader. Institutionalization of civil disputes settlement in Madurese community through conducted certification to mediator’s village, legitimized by regional regulation, and accommodates the law in society because the law applies in accordance with the sense of justice of the community
Criminal Law Enforcement of Indonesian Commerce Act Number 7 the Year 2014 for Corporation Perpetrators: Why It Will Be Difficult Zakaria, Alfons
Brawijaya Law Journal Vol. 6 No. 2 (2019): State Regulations and Law Enforcement
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2019.006.02.01

Abstract

Indonesian laws have recognized the legal person as a subject of criminal law. It can be seen in all regulations enacted recently acknowledging that “any person” is a natural person (natuurlijk persoon) and legal person (rechtspersoon) who are liable for criminal punishments. Related to legal person or corporation, Indonesia, on the other hand, regulates corporate criminal responsibility differently in every single law. Some laws contain complete provisions, but others may fail to set the regulation properly. The Indonesian Commerce Act Number 7 the year 2014, for example, the legislators might miss drawing the provisions regulating corporate criminal responsibility. The Act recognizes corporations as a legal subject, but there is the absence of provisions related to when corporations shall be categorized committing a crime, which party shall be responsible when corporations shall be responsible, and what punishments shall be proper for corporations. Furthermore, it is commonly used, that if there is an absence of criminal law provisions in an act, the Criminal Code and Criminal Procedure Code will be the referral sources. In terms of corporate criminal responsibility regulation, however, both the Criminal Code and Criminal Procedure Code do not recognize the corporation as the subject of criminal law. Thus, the codes may not suitable as the referral sources for corporate crime law. Unfortunately, corporations violating the Act, then, will be difficult to be enforced in the judicial process. As a legal research paper, it will argue that the absence of the provision related to corporate criminal responsibility leads to the failure of law enforcement of corporation wrongdoings by presenting prospective consequences of the absence of such provisions.
Access to Justice through Legal Aid in Nigeria: An Exposition on Some Salient Features of the Legal Aid Act Adebayo, Akintunde Abidemi; Ugowe, Anthonia Omosefe
Brawijaya Law Journal Vol. 6 No. 2 (2019): State Regulations and Law Enforcement
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2019.006.02.02

Abstract

According to Black's Law Dictionary, justice is the fair and proper administration of law. Similarly, access to justice is the ability to make use of the courts and other relevant institutions to efficiently protect and enforce rights. Access to justice is imperative in every society. People will access justice only if the proper situation creates. In a bid, to remove this major barrier in accessing justice, the Legal Aid Council of Nigeria was established in 1976. The concept of legal aid means the provision of free legal services to the indigent and underprivileged members of the society. Its importance and cannot be overemphasized particularly considering the level of illiteracy and poverty which are considered on the high side in Nigeria. Hence, in 2011, the Legal Aid Act 2011 was enacted. The birth of the Act repealed the old Act. This article analyses 3ethe provisions of both Acts with emphasis on the innovations of the new Act to promote access to justice and concludes with recommendations. Concerning the Council, it finds that there is a need for better funding and engagement of more salaried lawyers in order to enable it to carry out its functions as the Council is grappling with the challenge of underfunding and recruitment of more hands to work towards the achievement of its set objectives, among others.
Restorative Justice: an Alternative Process for Solving Juvenile Crimes in Indonesia Jufri, Mahfud; Nazeri, Norbani Mohamed; Dhanapal, Saroja
Brawijaya Law Journal Vol. 6 No. 2 (2019): State Regulations and Law Enforcement
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2019.006.02.03

Abstract

Restorative justice concept may refer to an alternative process for solving disputes including criminal law violation has been well known in Indonesia. The Act Number 11, 2012 on Juvenile Justice System has acknowledged restorative justice approach as a part of criminal justice system in dealing with a child in conflict with the law. It has become an essential provision in the Act as it provides option for law enforcers to avoid punishing juvenile offenders through traditional criminal approach. This research aims to examine restorative justice for juvenile offenders in Indonesia based on the Juvenile Justice System Act Number 11, 2012 as a form of alternative dispute resolution for juvenile crimes and other related laws and to provide a brief of the implementation of restorative justice in Indonesia that is integrally enforced in Indonesian criminal justice system dealing with a child in conflict with the law. It divides the discussion into two parts restorative justice in the juvenile justice system act 2012 and the implementation of restorative juvenile justice in Indonesia. In order to response to these research aims, this paper employs doctrinal legal research.
Characteristic and Legality of Non-Litigation Regulatory Dispute Resolution Based on Constitutional Interpretation Winata, Muhammad Reza; Aditya, Zaka Firma
Brawijaya Law Journal Vol. 6 No. 2 (2019): State Regulations and Law Enforcement
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2019.006.02.04

Abstract

Hyper-regulation and disharmonization of regulations is a serious challenge in Indonesia. Ministry of Law and Human Right make a breakthrough stipulates regulation on Regulatory Dispute Resolution through Non-litigation. This mechanism is unique because commonly alternative dispute resolution (ADR) used in civil law however, this instrument exercised in constitutional law. There are two research questions: First, what are the typical characteristics of non-litigation regulatory dispute resolution on Indonesia norm harmonization system; Second, how is the legality of non-litigation regulatory dispute resolution, mainly based on constitutional perspective. Author use statute, conceptual, and historical approach as research methods. The research result found the typical characteristics of non-litigation regulatory dispute resolution that most distinguish from litigation resolution: the resolution institution is Ministry under the executive branch, the final results limited only give a recommendation, and the nature of recommendation not final and binding. Next, the legality of the authority found even though only regulated at the level of Ministerial of Law and Human Rights Regulation. However, in the analysis of constitutional interpretation methods shows clearly this authority is legally based (1) Textual interpretation; (2) Structural interpretation; (3) Prudential interpretation; and (4) Consensus interpretation. Although, by nature, this process limited to resolve the conflict between norms and overregulation because it is voluntary and the result only recommendation, but the important thing is it can open alternative resolution to stimulate the harmonization and streamlining of regulations.
Role and Position of the Defendant in the Plea Agreement Sadriu, Vaxhid; Hajdari, Azem
Brawijaya Law Journal Vol. 6 No. 2 (2019): State Regulations and Law Enforcement
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2019.006.02.05

Abstract

The object of this study is the plea agreement in the criminal procedure of Kosovo. The study focuses on defining the understanding of the plea agreement, specifying the role and position of defendant in the plea agreement, specifying the rights and obligations of the defendant in the plea agreement, and on the elaboration of the importance and effects of the plea agreement for the defendant and withdrawal of such agreement for the reasons that may be related to it. The results of this paper prove that the guilty plea agreement in the Kosovo courts practice has had a direct effect on mitigation the level of sentence or in some cases acquits punishment. Looking into this aspect, the biggest benefits resulted on favor of defendants with the status of cooperative witness. The contribution of this paper is theoretical and practical, since it deals with an issue almost untreated in Kosovo. These issues focus on legal solutions, theoretical approach, as well as operational aspects concretized in the practical activity of criminal procedure subjects. The legal, comparative, tracing and theoretical analysis methods have been helped in the preparation of this study.
A Realistic Theory of Law (Book Review) Kabir, Syahrul Fauzul
Brawijaya Law Journal Vol. 6 No. 2 (2019): State Regulations and Law Enforcement
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2019.006.02.09

Abstract

Despite the law has been developing through the span of the history of human civilization, law has been formulated by legal thinkers, theologians, philosophers; constructed with various pretexts and objectives: for legal certainty, utility, justice and order; used to regulate social life in various forms and dimensions: customary law, religious law, state law, international law, the formulation of legal theory, to date, is still an academic debate. It is Brian Z. Tamanaha, a professor of law from America, who also entered the theoretical debate's arena through his academic works. In the contemporary legal discourse, Tamanaha is quite popular among academics and legal activists. Tamanaha is known globally due to his famous works, such as "A General Jurisprudence of Law and Society (2001)", which received Herbert Jacob Bookrize awards, and "On the Rule of Law: History, Politics and Theory (2004)", which have been translated into 6 languages. His position as an important legal thinker in the 21st century gained his legitimacy in 2013. Through a poll, which involved 300 deans and professors from various universities in America, Tamanaha was regarded as the most influential legal educator. Tamanaha is often cited by many legal thinkers in Indonesia, among others, by Satjipto Rahardjo, especially regarding Tamanaha's concept known as the mirror thesis. Through this notion, Tamanaha argues that law is only a reflection of certain ideas, values, cultures and traditions of society. Because law is always particular, referring to certain societies in particular temporal circumstances, then, legal transplantation from and/or to other communities is not realistic if not impossible. His thinking, inevitably influenced by the Anglo Saxon legal tradition that grows and practiced in his homeland America, which tends to be more dynamic and reliant on jurisprudence. On April 24, 2017, Cambridge University Press published Tamanaha's latest book entitled "A Realistic Theory of Law". Examining the composition of the book's contents: contained a debate regarding law's definition, the schools of law, genealogy of law, while questioning the truth and the universality of law, presumably implying that Tamanaha was constructing his own legal theory as reflected in the book's title ("Theory of Law"). Based on this description, the author is interested in exploring Tamanaha's legal thinking; outlining his opinions on the essence of law, through his newest book which numbered 202 pages. The first part of the book discusses three most prominent theories or legal philosophies (Jurisprudence) in various legal discourses: The School of analytical law (legal positivism), philosophical/ethical (natural law) and historical (historical schools). Throughout history, from medieval times to renaissance, the conflict between these schools of jurisprudence was reviewed through its exponents thinkers. Then, Tamanaha entered the arena using the socio-legal framework's, in order to overcome the gap between these schools of law. In the second chapter, Tamanaha reviews the classical debate on law, namely questioning the legal definition in a sub-title "what is law?". The three branch of jurisprudence, as mentioned previously, are joined to disscuss the problematic definition of law. Then, Tamanaha not only criticizes the proposed law definitions, elucidating the shortcomings and failures of established legal definitions, but also tries to reconstruct it. Chapter three contains description with regard to the claim of law's universality. Here, Tamanaha critically discusses the basic assumptions of law and the implicit legal features from the mainstream law's perspective. Differentiation between laws as social construction, which varies in each society due to the variety of cultures, environments, etc. (a posteriori), is faced diametrically with the identification of idealized laws, which can be applied universally (a priori). The discussion raises a debate on the universality of the nature of law (universal truth); identification of legal characteristics, and the possibility of its implementation in a universal way. Tamanaha, in the fourth part, uses genealogical approach of law; tracing the relationship between law and non-law elements, such as: economic, social, political, environmental, technological, cultural, in a diverse historical contexts. On the one hand, Tamanaha is concerned with historical developments related to legal structures; how law is formed and what elements have influenced law, by citing historians, sociologists, anthropologists viewpoint, etc. On the other hand, Tamanaha scrutinize analytical law's arguments, especially the positivist school; suing the basic assumptions of state law which has been hegemonic as the standard, in determining entity referred to as law. The fifth part of the book is entitled "Law in the Age of Organizations". Tamanaha begins this chapter by claiming that legal theories have failed in calculating fundamental changes in law and society, which are marked by the rise of formal legal instruments. Tamanaha claims that his legal theory is more suited to modernity. Tamanaha distinguishes between law as the core regulation for social interaction and the use of law by the state. Furthermore Tamanaha explained how the interaction between the two categories affected the creation of legal structures in the community. Before arriving at conclusions, Tamanaha ends the discussion in this book through the last part entitled "What is International Law". Tamanaha claims that international legal theories have a problem due to the confusions of concepts and ideological views constructed in international legal discourse. Conceptual barriers trigerred by Jeremy Bentham's theoretical paradigm in which he created a gap between domestic law and international law as separate entities. While ideological barriers stem from normative tendencies or commitments among international law experts in establishing a universal legal system; thus creating a false vision related to the locus of international law and its relation with national law. By outlining these confusion, Tamanaha believes he can provide a more comprehensive understanding of international law.

Page 22 of 29 | Total Record : 287

 20   21   22   23   24 

Filter by Year

2014 2025


Reset
Filter By Issues
All Issue Vol. 12 No. 2 (2025): The Evolution of International Humanitarian Law : Historical Roots to Future D Vol. 12 No. 1 (2025): Protecting People Crossing Border in The Context of International Migration La Vol. 11 No. 2 (2024): The Role Of Human Rights on ASIA Pacific Policies and Strategies Vol. 11 No. 1 (2024): Economic Law Vol. 10 No. 2 (2023): Current Challenges, Developments and Events in The International Law Vol. 10 No. 1 (2023): The Discourse of Civil and Political Rights in Theory and Practice Vol. 9 No. 2 (2022): Energy and Environmental Law Vol. 9 No. 1 (2022): International Law and Security Vol. 8 No. 2 (2021): State Administration Role in Establishing Constitutional Obligation Vol 8, No 2 (2021): State Administration Role in Establishing Constitutional Obligation Vol. 8 No. 1 (2021): Contemporary Issue in Private Law Vol 8, No 1 (2021): Contemporary Issue in Private Law Vol 7, No 2 (2020): Contemporary Legal Issue in Children and Women Protection Vol. 7 No. 2 (2020): Contemporary Legal Issue in Children and Women Protection Vol. 7 No. 1 (2020): Contitutional Issues: Economic, Social and Cultural Rights Vol 7, No 1 (2020): Contitutional Issues: Economic, Social and Cultural Rights Vol. 6 No. 2 (2019): State Regulations and Law Enforcement Vol 6, No 2 (2019): State Regulations and Law Enforcement Vol. 6 No. 1 (2019): Alternative Dispute Resolution Vol 6, No 1 (2019): Alternative Dispute Resolution Vol 5, No 2 (2018): The Role of State in Contemporary Legal Development Vol 5, No 2 (2018): The Role of State in Contemporary Legal Development Vol. 5 No. 2 (2018): The Role of State in Contemporary Legal Development Vol. 5 No. 1 (2018): Culture and Technological Influence in Regulation Vol 5, No 1 (2018): Culture and Technological Influence in Regulation Vol 5, No 1 (2018): Culture and Technological Influence in Regulation Vol 4, No 2 (2017): Law and Sustainable Development Vol 4, No 2 (2017): Law and Sustainable Development Vol. 4 No. 2 (2017): Law and Sustainable Development Vol 4, No 1 (2017): Constitutional Issues and Indigenous Rights Vol. 4 No. 1 (2017): Constitutional Issues and Indigenous Rights Vol 4, No 1 (2017): Constitutional Issues and Indigenous Rights Vol 3, No 2 (2016): Contemporary Indigenous and Constitutional Issues: Transnational Perspective Vol 3, No 2 (2016): Contemporary Indigenous and Constitutional Issues: Transnational Perspective Vol. 3 No. 2 (2016): Contemporary Indigenous and Constitutional Issues: Transnational Perspective Vol 3, No 1 (2016): Law and Human Rights Issues Vol. 3 No. 1 (2016): Law and Human Rights Issues Vol 3, No 1 (2016): Law and Human Rights Issues Vol. 2 No. 2 (2015): Law and Globalization Vol 2, No 2 (2015): Law and Globalization Vol 2, No 1 (S) (2015): Contemporary Issues in South-East Asia Countries Vol. 2 No. 1 (S) (2015): Contemporary Issues in South-East Asia Countries Vol 2, No 1 (S) (2015): Contemporary Issues in South-East Asia Countries Vol 1, No 1 (2014): Legal and Development Vol 1, No 1 (2014): Legal and Development Vol. 1 No. 1 (2014): Legal and Development More Issue