INDONESIA Law and Practice Contributed by: Emir Nurmansyah, Ulyarta Naibaho, Adithya Lesmana and Adrian Panata, ABNR Counsellors at Law
6.2 Role of Courts The courts do not play a role in ordering preliminary or interim relief in arbitration proceedings. Arbitral tri - bunals do not have the authority to grant or lift attach - ments in the same manner and with the same binding force as the Indonesian courts. Although an arbitral tribunal is granted the power to render relief within the parameters of an arbitral procedure, in practice complications arise when the claimant party attempts to enforce the relief granted by the arbitral tribunal. Indonesian law does not reg - ulate court implementation of preliminary or interim relief awarded in arbitration proceedings. It gener - ally adopts the position that only a final and binding decision awarded in arbitration proceedings can be enforced. The Arbitration Law does not contain any reference to the use of emergency arbitrators. However, if the parties have agreed on specific rules for the arbitra - tion – either institutional or ad hoc – that allow the use of emergency arbitrators, the court should recognise the validity of an arbitral award rendered by an emer- gency arbitrator. In light of Articles 3 and 11 of the Arbitration Law, both of which stipulate that the national courts must refrain from examining disputes the parties have agreed to refer to arbitration, the national court should not be able to intervene once an emergency arbitrator has been appointed in accordance with the applicable institutional or ad hoc arbitration rules. 6.3 Security for Costs Under the Arbitration Law, there are no specific provi - sions on security for costs. In principle, the parties to a dispute could contractually agree to grant authority to the arbitrators to resolve this matter. 7. Procedure 7.1 Governing Rules The parties to a dispute that has been submitted to arbitration have the following options:
• to draw up their own procedural rules or adopt the UNCITRAL rules or other rules for ad hoc arbitra - tion; • to use the rules of a national or international arbi- tration institution; or • to use the default rules contained in the Arbitration Law, which will in any event apply if neither of the preceding options has been chosen. 7.2 Procedural Steps Pursuant to the Arbitration Law, the following default procedural steps are prescribed. When a dispute arises, the respondent must be noti - fied in writing via mail, telex, facsimile or email. The notification must include: • the names and addresses of the disputing parties; • evidence of the agreed arbitration clause; • the disputed issues; • the basis for a claim and the claim amount; • the agreed dispute settlement procedure; and • the agreed or chosen number of arbitrators. 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.
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