INDONESIA Law and Practice Contributed by: Emir Nurmansyah, Theodoor Bakker, Ulyarta Naibaho and Adithya Lesmana, ABNR Counsellors at Law
Conditions for Enforcement In order to seek enforcement in Indonesia, the enforc - ing party must observe Article 66 of the Arbitration Law, which requires fulfilment of the following: • the award was rendered by an arbitrator or arbitral tribunal in a state that has a bilateral or multilateral convention on the recognition and enforcement of arbitral awards with Indonesia (the reciprocity principle); • the subject matter of the dispute falls within the scope of commercial law (the commerciality prin - ciple); • the execution of the award would not violate public policy; and • an exequatur (writ of execution) has been obtained from the chair of the CJDC. There are three relevant steps to enforcing a foreign arbitral award in Indonesia: • registration; • obtaining an exequatur; and • execution ( eksekusi ). Registration Registration of a foreign arbitral award is effected by the arbitral tribunal or its attorney at the CJDC. The application must be accompanied by the following documents: • the original or a certified true copy of the award and a sworn Indonesian translation; • the original or a certified true copy of the arbitra - tion clause or agreement and a sworn Indonesian translation; and • a confirmation from the Indonesian embassy in the country where the award was issued that said country is bound by the New York Convention or another international agreement on recognition and enforcement of arbitration, to ensure that the reciprocity requirement is fulfilled. All documents produced or signed outside Indonesia must first be apostilled or consularised by the Indo - nesian Embassy where they were produced or signed, by virtue of Articles 68 and 70 of the Regulation of the Ministry of Foreign Affairs No 09/A/KP/XII/2006/01 on
General Guidelines on the Procedure for International Relations and Co-operation. A power of attorney from the arbitral tribunal is required if the award is registered by an attorney. The Arbitration Law assumes that arbitrators themselves register the award. Obviously, this will be difficult to achieve in practice because, as discussed in 4.2 Default Procedures , the function of the arbitrators ends after an award has been issued. For this reason, parties often request in their claim that the arbitrators grant a power of attorney at the time of issuance of the award, allowing an attorney to register the award. The power of attorney must be notarised and apostilled or consularised by the Indonesian Consulate or Embassy having jurisdiction over the place of signing by the arbitrators or arbitration institution (for an institutional arbitration). The examination in this phase is limited to whether it has fulfilled all administrative requirements. The CJDC will then issue a deed of registration once the documents are found to be complete. The Exequatur An exequatur application follows once the award is successfully registered. Unlike registration, which is effected on behalf of the arbitral tribunal, the exequa - tur is requested by the party seeking to enforce the award. The examination will determine whether the award fulfils the reciprocity, commerciality and public policy requirements. The Arbitration Law does not provide a mechanism for how the respondent party may intervene in the enforcement request. The nature of the request is uni - lateral. Once an exequatur has been issued, the foreign arbi - tral award can be enforced in Indonesia. The decision to grant an exequatur cannot be appealed. However, if the application for an exequatur is rejected, that rejec - tion can be appealed before the Supreme Court. The appeal must be adjudicated within 90 days of the date of filing. Nevertheless, in recent case court practice, it appears that the decision to grant an exequatur can be over - turned; please see 3.3 National Courts’ Approach for further details.
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