Ensuring Legal Certainty: The Disbursement of Bank Guarantees

Abstract

The precautionary principle, commonly associated with lending, extends beyond credit transactions to include other banking services such as bank guarantees. Bank guarantees serve as a form of debt guarantee provided by banks to their customers. This article addresses concerns related to the disbursement of bank guarantees during disputes and emphasizes the importance of customer protection in this context. The method employed is a normative juridical approach, incorporating conceptual, statute, and philosophical considerations. The findings reveal that the application of the Precautionary Principle in the Financial Services Authority Regulation (POJK) Number 18/2016 is evident through the inclusion of "Risk Management" provisions. In line with the Precautionary Principle, banks are advised to postpone disbursement when a legal dispute arises between the beneficiary of the bank guarantee and the customer who applied for it. To prevent controversies arising from bank guarantee disbursements, it is recommended that Bank Indonesia or the Financial Services Authority (OJK) establishes regulations specifically addressing the disbursement process for bank guarantees. This regulatory framework would contribute to the effective implementation of the Precautionary Principle in the context of bank guarantees.