INDONESIA Law and Practice Contributed by: Emir Nurmansyah, Theodoor Bakker, Ulyarta Naibaho and Adithya Lesmana, ABNR Counsellors at Law
8. Evidence 8.1 Collection and Submission of Evidence As Indonesia is a civil law country, under Indonesian procedural law a party must present its own evidence to substantiate its claim; hence, the common law con - cept of discovery is generally not recognised. Under the Arbitration Law, arbitrators do have the power to request parties to provide additional information in writing, documents or other evidence necessary. However, arbitrators have no executorial authority to compel the parties to provide the requested docu - ments. 8.2 Rules of Evidence The Arbitration Law adopts a combination of rules of evidence provided under the provisions of the Arbitra - tion Law and the Indonesian Civil Code. The approach taken to implement such a combination is the princi - ple of lex specialis derogit lex generalis; therefore, if the provisions in the Arbitration Law stipulate a spe - cific subject matter, this would override the law gov - erning general matters (for example, the Indonesian Civil Code). The Arbitration Law also adopts the civil procedural law or HIR. A party may submit any of the following evidence rec - ognised under the Indonesian Civil Code and HIR: • documents/written evidence; • witness statements; • presumptions/indications ( vermoedens ); • confessions or admissions; and • oaths. In order to ensure that the evidence is admissible, there are specific requirements for each type of evi - dence. The International Bar Association (IBA) Rules on the Taking of Evidence in International Arbitration are often referred to as guidance in cross-border arbi -
The arbitral tribunal should rely on the powers vested in it pursuant to the arbitration agreement, the Arbitra - tion Law and the institutional arbitration rules, where applicable.
9. Confidentiality 9.1 Extent of Confidentiality
The examination of a dispute by arbitrators takes place in a closed proceeding, and registration details, documents, submissions and hearings can only be disclosed to third parties with the consent of the dis - puting parties or if legally required by law. Indonesian law is silent on whether information in arbitration pro - ceedings may be disclosed in subsequent arbitration proceedings. The Arbitration Law does not expressly state that the award is confidential. Most of the rules adopted by arbitration institutions have their own provisions on confidentiality. The BANI Rules, for instance, specify that all matters relating to the arbitration must be kept in strict confidence between the parties, the arbitrators and BANI itself. Article 54 paragraph (1) of the Arbitration Law requires that an arbitral award must contain at least the fol - lowing: • the statement “ • Berdasarkan Keadilan yang Berdasarkan Ketuhanan Yang Maha Esa ” (for the sake of justice based on the almighty God), written at the top of the award; • the full names and addresses of the parties; • a brief description of the dispute; • the positions of the respective parties; • the full names and addresses of the arbitrators; • the considerations and conclusions of the tribunal concerning the dispute; • the opinion of each of the respective arbitrators if there is a difference of opinion within the tribunal; • the dictum of the award; • the place and date of the award; and 10. The Award 10.1 Legal Requirements
trations seated in Indonesia. 8.3 Powers of Compulsion
With the absolute competence of arbitration and pur - suant to the limitation on court involvement in arbi - tration, there are no powers of compulsion or court assistance for arbitrators to order the production of a document or require the attendance of witnesses.
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