INDONESIA Law and Practice Contributed by: Emir Nurmansyah, Theodoor Bakker, Ulyarta Naibaho and Adithya Lesmana, ABNR Counsellors at Law
• the grounds for annulment of Indonesian awards are limited to fraud, forgery or the concealment of material documents. Some of these points will be discussed in further detail in this chapter. Generally, the role of the courts is relatively limited compared to the role granted to the courts in the Model Law. The Supreme Court recently enacted Supreme Court Regulation No 3 of 2023 on the Procedure for the Appointment of Arbitrators by the Court, Rights to Challenge Arbitrators, and Examination of Appli - cations for Enforcement and Annulment of Arbitral Awards (“Supreme Court Reg No 3/2023”). The Regu - lation introduces key updates to the Arbitration Law, including arbitrator immunity, the procedures for chal - lenging arbitrators and the timeline for issuing exequa - tur after award registration. 2.2 Changes to National Law No statutory amendments with a significant impact on Indonesian arbitration practices have been intro - duced in the past year, and no further major reforms are underway or expected. The Arbitration Law requires an arbitration agreement to be made in writing and signed by the parties. It may be in the form of: • an arbitration clause contained in a written agree - ment made before the dispute arises; or • an agreement entered into especially by the parties after the dispute arises. If an arbitration agreement is made before the dispute arises, the Arbitration Law requires that it should state that all disputes that arise or may arise from a legal relationship between the parties must be settled by means of arbitration. If an arbitration agreement is made after the dispute arises, it must include at least: • the subject matter of the dispute; • the names and addresses of the parties; 3. The Arbitration Agreement 3.1 Enforceability
• the names and residential addresses of the mem- bers of the arbitral tribunal; • the place where the arbitral tribunal will render the award; • the name of the secretary to the arbitral tribunal; • the time period within which the arbitration is to be completed; • a statement from the members of the arbitral tribu- nal accepting their appointment; and • a statement from the disputing parties that they will bear all costs of the arbitration. The Arbitration Law does not require the seat of the arbitration – the legal concept tying the arbitration to a legal jurisdiction – to be mentioned in the arbi - tration agreement. However, if the place where the arbitral tribunal will render the award is Jakarta, it is safe to assume that the Arbitration Law will govern the arbitration, and that the Indonesian courts will have control in relation to the arbitration and the powers that are elsewhere granted to the courts of the seat of arbitration. An arbitration agreement can be contained in an exchange of correspondence that provides a record of its content, and any dispatch by telex, telegram, facsimile, email or other means of telecommunica - tion must be accompanied by an acknowledgment of receipt. The Arbitration Law does not deal with optional arbitration clauses that give one or more of the parties the ability to decide after a dispute has arisen whether to arbitrate or litigate that dispute. 3.2 Arbitrability Matters that may not be referred to arbitration are those in which, according to Indonesian law, no ami - cable settlement is possible (eg, criminal matters, bankruptcy, adoption). The general approach to deter - mine whether or not a dispute is arbitrable is found in Article 5 (1) of the Arbitration Law, which states that a dispute can be settled by means of arbitration if it is of a commercial nature and “falls within the full legal authority of the disputing parties”. The latter require - ment appears to give arbitrators the authority to exam - ine whether particular parties (eg, government-owned entities) have the requisite power to submit disputes to arbitration. As regards the meaning of disputes of a “commercial nature”, the elucidation to Article 66
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