INDONESIA Law and Practice Contributed by: Enny Purnomo Widhya, Nugrahani Astiyanti and I Gusti Ngurah Oka Anantajaya, Mochtar Karuwin Komar
2.6.4 Summary Judgment or Other Relief Under Indonesian law in general (and not specifically related to transactions subject to the Cape Town Con - vention), a summary process may be available to a mortgagee or a beneficiary of an acknowledgement of indebtedness that is made in a notarial deed form. Where the party bringing the lawsuit is a mortgagee, the District Court may simply pronounce an exequatur judgment. Where the party bringing the lawsuit is a beneficiary of an acknowledgement of indebtedness, the court may, in general, grant the party an expe - dited proceeding as well. However, such an expedited proceeding would only be granted if the underlying loan transaction is deemed straightforward and the acknowledgment of indebtedness is executed by the borrower upon the receipt of the relevant sum. It is doubtful that the Indonesian court would grant such proceeding in aircraft financing transactions (where the borrower is usually not an Indonesian par - ty). Even though the summary process may not be available to the lessor, the lessor may still exercise the remedies available under the Cape Town Convention (to the extent the relevant agreement is subject to the Cape Town Convention). To the extent the relevant agreement is subject to the Cape Town Convention and the lessee has agreed to such remedies, the types of remedies that are avail - able to the lessor in Indonesia under the Convention are as follows: • preservation of the aircraft object and its value; • obtaining possession, control or custody of the aircraft object; • immobilisation of the aircraft object; • permission to lease out the aircraft object or to manage it and to obtain the income therefrom; and • if at any time the debtor and the creditor specifi - cally agree, to sell the aircraft object and to apply the proceeds therefrom to meet the debts. Pursuant to the declarations made by Indonesia with respect to the Cape Town Convention and the Aviation Law, the court order for interim relief shall be issued within the following timeframe:
• for preservation of the value, the obtaining of pos - session, control or custody and/or immobilisation of the aircraft objects, not more than ten calendar days from the date of filing the application; or • in the case of a lease or the management of the aircraft objects and the income therefrom and the sale of the aircraft objects and the application of the proceeds therefrom, not more than 30 calendar days from the date of filing the application. The Aviation Law does not set out detailed proce - dures as to how a creditor (in this case the lessor) should file the request with the court. The Aviation Law simply states that the creditor may file a request with the competent court (ie, the court where the les - see is domiciled or the aircraft is situated) to issue a court order for injunctive relief. The types of interim relief stated above are relatively new under Indonesian Law and, therefore, the request for such relief may meet many technical impediments, and the exercise of such remedies may take much longer than the timeframes stipulated in the Aviation Law. Further, the authors are not aware of any pub - lished court decisions dealing with such reliefs and remedies provided under the Cape Town Convention. 2.6.5 Domestic Courts’ Approach to Foreign Laws and Judgments In general, Indonesian courts should uphold and apply the law and jurisdiction chosen as long as the foreign law and jurisdiction chosen are not against public order. Specifically for agreements that are subject to the Indonesian Aviation Law and the Cape Town Con - vention (namely security agreement, title reservation agreement and leasing agreement – each as defined in the Cape Town Convention), parties to such agree - ments are free to choose the law that will govern the agreements regardless of whether or not there is a connection between the parties or the transaction and the chosen law. However, unless a bilateral treaty on the execution of foreign judgments exists between the Republic of Indonesia and the foreign country, any judgment obtained in the courts of such foreign country will not
285 CHAMBERS.COM
Powered by FlippingBook