INDONESIA Law and Practice Contributed by: Enny Purnomo Widhya, Nugrahani Astiyanti and I Gusti Ngurah Oka Anantajaya, Mochtar Karuwin Komar
3.3.4 Statutory Rights of Detention or Non- Consensual Preferential Liens Statutory rights of detention or non-consensual pref - erential liens should only arise over the relevant air- craft, not on a “fleet-wide” basis. 3.3.5 Verification of an Aircraft’s Freedom From Encumbrances As mentioned above, the DGCA no longer maintains records of mortgages on aircraft registered in Indo - nesia. 3.4 Enforcement 3.4.1 Differences Between Enforcing Security Assignments, Loans and Guarantees As with enforcing a loan or a guarantee, a court in Indonesia should give effect to a security assignment in accordance with its terms to the extent it is valid and enforceable under the governing law thereof. 3.4.2 Security Trustees’ Enforcement of Their Rights Subject to the discussion at 2.2.5 Recognition of the Concepts of Trust/Trustee and provided that the Indonesian court accepts the governing law of the security assignment and the application of equita - ble principles, the security trustee should be able to enforce their rights. 3.4.3 Application of Foreign Laws In general, Indonesian courts should uphold and apply the law chosen where there is a connection between the parties or the transaction and the chosen law and the choice of law is not against public order, upon proof thereof. Specifically for agreements that are subject to the Aviation Law and the Cape Town Convention (namely security agreement, title reservation agreement and leasing agreement – each as defined in the Cape Town Convention), parties to such agreements are free to choose the law that will govern the agreements regard - less of whether or not there is a connection between the parties or the transaction and the chosen law.
3.4.4 Recognition and Enforcement of Foreign Judgments and Arbitral Awards Judgments from a foreign court are not recognised or enforceable in an Indonesian court. The Indone - sian court would not enforce any other order including (i) judgment, (ii) foreign decree or (iii) other executive act confiscating the aircraft regardless of the mortga - gee’s security interest in it, without a rehearing of the issues. However, in any Indonesian court proceed - ings, a judgment of a foreign court could be offered and accepted into evidence and may be given such evidentiary weight as the Indonesian court deems appropriate under the circumstances. Indonesia is a party to the New York Convention and Foreign Arbitral Awards are recognised in Indonesia without re-examination, although enforcement of a Foreign Arbitral Award requires a court order from the District Court. See 2.6.12 Enforcement of Foreign Arbitral Decisions . 3.4.5 Secured Parties’ Right to Take Possession of Aircraft See 2.6.2 Lessor Taking Possession of the Aircraft with respect to a creditor. 3.4.6 Domestic Courts Competent to Decide on Enforcement Actions There are no specific courts to decide on security agreement/aircraft mortgage enforcement actions; usually it is the court where the lessee is domiciled. 3.4.7 Summary Judgments or Other Relief See 2.6.4 Summary Judgment or Other Relief . 3.4.8 Judgments in Foreign Currencies If so requested, an Indonesian court may render a judgment in a currency that differs from legal tender in Indonesia. However, this will be at the full discretion of the court. 3.4.9 Taxes/Fees Payable For any tax advice, please consult with an Indonesian
tax consultant on this matter. 3.4.10 Other Relevant Issues
It is considered advisable that any assignment of lessor’s rights in favour of the lender for any aircraft
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