INDONESIA Trends and Developments Contributed by: Emir Nurmansyah, Theodoor Bakker, Ulyarta Naibaho and Adithya Lesmana, ABNR Counsellors at Law
Emergency arbitration In a nutshell, emergency arbitration allows a disput - ing party to request urgent interim or conservatory measures prior to the constitution of the arbitral tri - bunal. The mechanism was developed to ensure that no disputing party can undertake actions that may result in irreparable harm to the other party before the tribunal is constituted. The procedure to apply for emergency arbitration is stipulated in Attachment I of the 2025 Rules. Request for emergency arbitration The request is submitted to the Secretariat of BANI, containing: • the identity of the parties and their representation; • the grounds for emergency arbitration; • the emergency measures sought; and • the grounds for the urgent interim or conservatory measures that cannot await the constitution of the arbitral tribunal. The Chairman of BANI has the authority to authorise the commencement of an emergency arbitration Appointment of emergency arbitrator A sole emergency arbitrator will be appointed by the Chairman of BANI within two business days upon receipt of the request for emergency arbitration by the Secretariat of BANI. The emergency arbitrator shall not be part of the arbitral tribunal ruling on the dispute itself. The 2025 Rules allow parties to challenge the appoint - ed emergency arbitrator within two business days upon receipt of the notice of appointment. The Chair - man of BANI has the obligation to rule on the chal - lenge within four calendar days upon receipt of the challenge. Proceedings The venue of the emergency arbitration is agreed upon by the parties or else determined by BANI. The 2025 Rules allow for the emergency arbitration to be held online (ie, through telephone or video conference). The first hearing is held within three calendar days upon the appointment of the emergency arbitrator. The proceedings are to be concluded within 14 calendar
days upon the appointment of the emergency arbitra - tor, with a possible extension of up to seven calendar days based on legitimate grounds and if deemed nec - essary by the emergency arbitrator. Award The 2025 Rules stipulate that the award is provisional in nature but still deemed final and binding. By incor - porating the 2025 Rules into their arbitration clause, the parties agree to promptly execute the award and waive the right to appeal or seek other remedies for the award thereof to any relevant district court. Cost According to BANI’s website, the cost for emer - gency arbitration is IDR200 million (approximately USD12,000) plus VAT (currently at an effective rate of 11%). This fee must be paid on the same day the request is submitted. Absence of rules In the event that certain procedural aspects of emer - gency arbitration are not expressly regulated by the 2025 Rules, the Chairman of BANI formulates the rules on an ad-hoc basis. Consolidation of arbitral proceedings The 2025 Rules streamline the requirements for con - solidating proceedings between multiple parties or multiple agreements and proceedings involving third parties. The arbitration involving multiple parties can be consolidated if the parties have sufficiently proven the existence of a connection between the parties. Disputes arising out of or related to more than one agreement may be referred to arbitration in a single request, provided that (i) there is a connection between the agreements and (ii) BANI or BANI Rules are cho - sen for the settlement of disputes by all agreements. A third party may only participate in the proceedings if that party has a certain interest in them, and the third party’s involvement is agreed upon by the parties and approved by the arbitral tribunal. However, the 2025 Rules do not specify the parame - ters of “connection” and “interest” or other conditions necessary to initiate consolidated proceedings, which means that these matters will need to be determined on a case-by-case basis.
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