Abstract
This Article recounts a complete history of Indonesia’s implementation of the 1958 NY Convention. In particular, the elaboration and analysis focus on the comparison between related provisions in the 1999 Indonesian Arbitration Law and the Convention’s provisions as well as on several key Indonesian court decisions on enforcement of foreign arbitral awards. Different than other writings in this area, this Article looks more closely at the practical issues which affect the way Indonesian courts apply or interpret the 1958 NY Convention, such as procedural hurdle and the judicial capacity to comprehend and understand basic concepts and principles of arbitration. The Article shows that those practical issues very much influence the implementation of the Convention in Indonesia while the courts oscillate between monism and dualism, and highlights the important role of doctrines in developing Indonesian jurisprudence on this area. In that vein, the conclusion here may also contribute in answering the wider question about the position of treaties under Indonesian law and how they are implemented in Indonesia beyond the superficial debate on monism-dualism.
Highlights
This Article broaches the issue of the application of treaties in Indonesian legal system through the lens of Indonesian legislative and court practices on the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards [‘1958 NY Convention’ or ‘Convention’], a convention under which a state party in principle undertakes to recognise and enforce foreign arbitral awards
In the wider context of international law generally, the elaboration here will contribute in showing that those practical issues often are much more determinative in shaping a treaty’s domestic implementation and shed more light rather than dwelling in a never-ending conundrum of monism or dualism as the two theories so far dominating the discourse on the position and effect of international law in Indonesian legal order
Higgin’s observation that it is right that “the difference in response to a clash of international law and domestic law in various domestic courts is substantially conditioned by whether the country concerned is monist or dualist in its approach.”13 The problem in Indonesia, is that the law has not settled on either approach and there is every reason to expect that it will not be settled in the foreseeable future
Summary
This Article broaches the issue of the application of treaties in Indonesian legal system through the lens of Indonesian legislative and court practices on the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards [‘1958 NY Convention’ or ‘Convention’], a convention under which a state party in principle undertakes to recognise and enforce foreign arbitral awards. The main purpose is to provide a complete historical account of the Convention’s implementation in Indonesia and related practical issues in particular regarding domestic capacity: to examine the factors which may affect the way that Indonesia, in particular its courts, apply or interpret the 1958 Convention directly. In the wider context of international law generally, the elaboration here will contribute in showing that those practical issues often are much more determinative in shaping a treaty’s domestic implementation and shed more light rather than dwelling in a never-ending conundrum of monism or dualism as the two theories so far dominating the discourse on the position and effect of international law in Indonesian legal order. Some of the practical backgrounds, causes and possible solutions will be examined in the last section (section IV) before the Article ends with the Conclusion
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