INDONESIA Law and Practice Contributed by: Emir Nurmansyah, Theodoor Bakker, Ulyarta Naibaho and Adithya Lesmana, ABNR Counsellors at Law
Written submission must be presented to the arbitral tribunal for the purpose of examining the dispute. Oral submissions may be made if agreed by the parties and considered necessary by the arbitrators. At least one hearing must be held. If deemed neces - sary by either party or the arbitral tribunal, the parties must appear at further hearings. The arbitrators must make an effort to settle the dis - pute amicably prior to examination of the dispute. If such conciliation is in fact reached, then this must be set out in a deed, which is final and binding upon both parties and instructs them to abide by its provisions. The arbitration hearings commence if a settlement cannot be reached. The examination of witnesses and experts typically follows the Indonesian Civil Procedural Law. The arbi - trators can decide to summon witnesses either at their own initiative or at the request of the parties. The cost of witnesses must be borne by the claimant. The arbi - trators may also hear expert witnesses. The testimony of the expert witnesses must be in writing. In contrast to the UNCITRAL Model Law, the arbitra - tion proceedings must be completed within 180 days after the panel of arbitrators has been established; the Arbitration Law states that arbitration procedures may not extend beyond 180 days. This term can be extended by the arbitrators at the substantiated request of one of the parties, as a result of interim measures, or if the proper resolution of the dispute so requires, as determined by the arbitral tribunal. It is possible and common to waive this provision in an arbitration clause. The award must follow the requirements set out in Article 54 (1) of the Arbitration Law (for further expla - nation, see 10. The Award ), and must be pronounced within 30 days of the examination being completed. 7.3 Powers and Duties of Arbitrators The arbitrators, acting as an arbitral tribunal, have the authority to: • determine the tribunal’s own jurisdiction;
• determine the rights and obligations of the disput - ing parties; • render an interlocutory decision at the request of one of the disputing parties; • conduct site visits if considered necessary; • determine the seat of arbitration, unless already
agreed by the parties; and • hear witnesses or experts. The arbitrators have the duty to:
• adjudicate the claims based on applicable law or the principles of fairness and appropriateness (ex aequo et bono), unless the parties have agreed to reject these principles; • complete the examination of the case within 180 days of the establishment of the panel of arbitra - tors, unless an extension is agreed by the parties; and • decide on the arbitration costs (arbitrators’ fees, transportation costs and other relevant costs, costs to summon witnesses or experts that may be necessary for the examination of the dispute, and administration costs). 7.4 Legal Representatives No particular qualification is required for a legal repre - sentative appearing before arbitration proceedings in Indonesia. In fact, there is no obligation to be admit - ted to any bar association in order to act as counsel in such proceedings. Moreover, there is no obligation for the parties to be represented at all. Foreign legal representatives require no specific qualification to act as their client’s representative. If a legal representative is an Indonesian legal counsel/ advocate, the requirements under Law No 18 of 2003 (the “Advocates Law”) will apply. For capital market arbitration in BAPMI, the legal representatives that can appear must be members of the Association of Capi - tal Market Legal Consultants ( Himpunan Konsultan Hukum Pasar Modal , or HKHPM).
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