Respect for contracts imperative<\/p>\n
By Bob P. Nainggolan<\/p>\n
JAKARTA (JP): The machinations of the dispute between PT Roche
\nIndonesia as the accused and PT Perusahaan Dagang Tempo as the
\nplaintiff in a recent legal case has opened up discussion on a
\nnumber of important and far reaching points in regards to
\ncontractual certainty in Indonesia.<\/p>\n
This article is written as a reaction to the public
\nannouncements that appeared in The Jakarta Post last month, in
\nwhich both parties' lawyers raised legal issues that demand
\ncomprehensive attention and need to be studied further.<\/p>\n
The issue has arisen as a result of PT Roche wishing to
\nterminate one division of its distribution network with PT
\nPerusahaan Dagang Tempo.<\/p>\n
The remaining division, which still constitutes over 60
\npercent of the distribution contract, would still remain with
\nTempo.<\/p>\n
The issue seems to be a case where one company -- Roche
\nIndonesia -- is trying to diversify its distributor network,
\nwhile the distributor -- Perusahaan Dagang Tempo -- does not want
\nto give up their exclusive distributor relationship with Roche.<\/p>\n
In the case itself, among the issues most interesting include
\nwhat the core legal issue in this case is: whether the conflict
\nsettlement that has been promised by both parties in an agreement
\nthrough an Arbitrary institution can be rightfully examined by
\nthe district court.<\/p>\n
This right needs to be assessed in light of understanding that
\nbased on Law No. 30\/1999 the district court lacks the competence
\nto handle a case if each party has agreed to settle the matter
\nthrough an Arbitrary institution.<\/p>\n
It would appear that based on the legal power of an agreement
\nbetween the parties and according to the rules of a civil case
\n(Chapter 1338 of the Civil Penal Code), proper contractual
\nprocesses should be carried out.<\/p>\n
Additionally, based on Chapters 2 and 3 of Law No. 30\/1999 on
\nArbitrary and the Alternative for Conflict Settlement, it is
\nstipulated that if an agreement contains a clause of issue
\nsettlement through Arbitration, then the settlement should
\naccordingly be implemented through the Arbitrary institution.<\/p>\n
In Chapter 3 it is mentioned that the district court has no
\nauthority to examine a case when it is bound to a settlement
\nthrough the Arbitrary institution.<\/p>\n
If this is true, then the question needs to be asked why then
\ndid this issue ever reach the district court?<\/p>\n
Based on the two statements indicating the case and judicial
\narguments forwarded by each party, we observe that the efforts
\nmade by them can be categorized as deviating from the law and
\nrisking the professional ethics that should be rectified by
\nprofessionals engaged in this sector.<\/p>\n
This means that if they understand properly the regulation as
\nstipulated in Chapter 1338 and Law No. 30\/1999, the appropriate
\nsteps that should have been taken through an Arbitrary
\ninstitution and not by directly proposing a charge via court
\nproceedings.<\/p>\n
In other words, whatever the reason, it is appropriate that
\nboth the plaintiff and defendant are bound to an agreement.<\/p>\n
Another aspect of interest from the two parties' recent public
\nannouncements in this newspaper was that the South Jakarta
\ndistrict court has, under the request, determined to confiscate
\nall assets owned by the accused so that it would be impossible
\nfor the accused to run a business.<\/p>\n
The problem with this is that the South Jakarta district court
\ndid not pay attention to the applied law for it has not handled
\nthe proposal of the plaintiff with the right law foundation,
\nwhich said that the South Jakarta court did not have the
\nauthority to evaluate the case between the plaintiff and
\ndefendant when they have committed themselves to solve their
\ndispute through an arbitration.<\/p>\n
According to the statement announced by the plaintiff PT
\nPerusahaan Dagang Tempo, as the issue consisted of arguments
\nconsidered juridical and not business related, judicial
\nintervention was justified from the beginning.<\/p>\n
Nevertheless, the juridical arguments were not the kind of
\nstatements that facilitated juridical arguments for they were
\nbased on a misinterpretation of an opinion of law expert Prof.
\nSubekti.<\/p>\n
If Prof. Subekti's views were considered as a reference to the
\narbitration dispute evaluation, then the roles of the experts --
\nthe business experts -- would be highly necessary.<\/p>\n
However, the opinions of the experts did not automatically
\nbecome the solution for the dispute.<\/p>\n
The solution of a dispute should be based on the law.<\/p>\n
In other words, there is a basic misunderstanding if the
\naccuser argues that the solution of the case via Arbitration
\nclause can only occur if the issue is business related and not
\nrelated to legal complications.<\/p>\n
Settlements for solving cases through arbitration are highly
\nnecessary.<\/p>\n
Therefore the settlement of the dispute can only occur through
\nthe Arbitration and not by the court system.<\/p>\n
Consequently, where there is an arbitration clause, a dispute
\nsettlement between a plaintiff and a defendant can only be
\nreached through arbitration, not through a judicial institution.<\/p>\n
In conclusion, in order to allow both local and multinational
\nbusinesses to breathe a collective sigh of relief, it would
\nappear that the South Jakarta court should govern a temporary
\nindictment and declare itself incompetent to authorize the case.<\/p>\n
If this was to occur, then both parties should then be aware
\nthat efforts to uphold justice and legal procedures should be
\nparamount, including the settling of the dispute through the
\ninstitution of the BANI Arbitration as it has been agreed
\npreviously.<\/p>\n
The writer is current Chairman of the Advisory Board for the
\nIndonesian Advocate Association and former chairman of the
\nIndonesian Advocate Association.<\/p>",
"url": "https:\/\/jawawa.id\/newsitem\/respect-for-contracts-imperative-1447893297",
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"sponsor": "Okusi Associates",
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