Dispute Resolution Institutions Research Articles

Analisis Fatwa DSN MUI No. 140 Tahun 2021 Terhadap Regulasi Dewan Pengawas Syariah pada Produk Securities crowdfunding

The purpose of this study is to determine and analyze the extent of the regulation of the Sharia Supervisory Board on securities crowdfunding products based on the DSN MUI fatwa No. 140 of 2021. The research method used is descriptive qualitative method which is focused on problems based on facts carried out by observation. This research focuses on analyzing data on the Shafiq.id website on the offering of Islamic securities in the form of sukuk through crowdfunding services reviewed through the provisions contained in the DSN MUI fatwa NO. 140 of 2021 concerning Islamic securities offerings through information technology-based crowdfunding services based on sharia principles. The results of this study indicate that the Sharia Supervisory Board (DPS) is tasked with ensuring that all activities in sharia fintech always comply with sharia principles, including in sharia crowdfunding activities. Islamic crowdfunding activities must be based on the spirit of helping in goodness (ta'awun) and must be based on Islamic rules and guided by the Qur'an and As-Sunnah. DPS oversees the information technology-based financing service model to ensure that the form of crowdfunding implementation does not conflict with sharia principles. In addition, DPS adjusts the contract according to the form of sharia crowdfunding that will be used by the parties. DPS is also tasked with providing advice to the parties and, in the event of a dispute, resolving it by consensus or through a sharia dispute resolution institution in accordance with the Fatwa of DSN-MUI.

Perlindungan Hukum Pembeli atas Ketidaksesuaian Kualitas Barang dan Jasa Berdasarkan Undang-Undang Perlindungan Konsumen

The development of digital technology has encouraged changes in the way of buying and selling transactions, especially through e-commerce platforms. However, in practice, it is not uncommon for the goods and services purchased to not be in accordance with the quality promised by the seller. This study aims to analyze the implementation of Law No. 8 of 1999 concerning Consumer Protection in protecting buyers from non-conformities in the quality of goods and services. The research method used is a normative juridical approach with secondary data from literature reviews and related laws and regulations. The results of the study show that legal protection for consumers has been regulated, but its implementation still needs to be strengthened, especially in digital transactions. This research is expected to provide recommendations for the government and consumer dispute resolution institutions.

EQUAL STATUS BEFORE THE LAW BY INDIGENOUS PEOPLES IN ORDER TO IMPROVE THE QUALITY OF LIFE IN SOCIETY, NATION AND STATE

The utilization of the Nagari Customary Court is actually important because it is needed by the customary law community. In fact, it is the customary law community that knows and understands the historical aspects and the ins and outs of the lineage, environment and local culture. Therefore, this research seeks to find an optimal model of utilization of the Nagari Customary Court. How is equal status before the law by indigenous peoples in order to improve the quality of life in society, nation and state. This research is a socio-legal research that uses a qualitative approach. The data used in the research are primary and secondary data. The data collection method is through literature study and interviews. Therefore, the articles of Pancasila that regulate equal rights and justice also apply to indigenous peoples, and must also be perceived through philosophical, juridical and sociological perspectives. Indigenous Peoples according to Jawahir Thontowi is a group of citizens who have genealogical ancestors in common, live in a place, have a common goal of living within the framework of values and norms, still enforce a binding Adat system, led by the head of Adat, coordinate the administration of power and the existence of dispute resolution institutions in the community.

Choices of Law for Democratic Regional Head Election Dispute Resolution Institutions in Indonesia

This research aimed to provide a conceptual idea regarding legal options in resolving disputes of democratic regional head elections in Indonesia with two proposed options. The first option included revising the Election and Regional Election Law to grant authority to the Constitutional Court (MK) and Election Supervisory Agency (Bawaslu) for adjudicating disputes. The second option proposed implementing the Fifth Amendment to the 1945 Constitution to reconstruct the Constitutional Court as an election court correlating with the primary role of upholding regulations. These proposed options would grant the Constitutional Court the authority to examine and adjudicate substantial matters related to the constitutionality of elections. Furthermore, the analysis used normative legal research including statutory, comparative, and conceptual methods.

Customary Mediation Practices: Practical Experiences from Indonesia

The current view of society no longer sees that the court is the only dispute resolution institution. The existence of court institutions has been indicated by various cases of corruption, collusion, and nepotism, better known as KKN. This is given that many products of court decisions deviate from the principles of justice, are quick and inexpensive. In this context, an alternative dispute resolution model is needed in the customary law community that is more efficient, fair and accommodating in order to maintain the continuity and sustainability of the life of the customary law community, which is more humane and equitable. The tradition of dispute resolution in customary law communities is based on the value of the philosophy of togetherness (communal), sacrifice, supernatural values, and Justice. In customary law Community, common interest is a philosophy of life that permeates every member of the indigenous community. The practice of customary mediation in this paper in practice, the karo people of North Sumatra and papu is a form of local wisdom in resolving disputes or conflicts in Customary Law communities with a community mediation approach where in Community Mediation, leaders (customary leaders) have an important role and must have skills in resolving disputes using customary rules contained in Indigenous communities. The purpose of adat mediation practices in Indonesia is the existence of community adat mediation to maintain the balance and harmony of Indigenous Peoples by prioritizing deliberation rather than dispute resolution through legal channels.

Sharia Economic Dispute Resolution Model According to Qanun No. 11 of 2018 concerning Sharia Financial Institutions

When many business entity activities start to appear that use the sharia label, the resolution must be carried out by institutions that truly understand sharia economics. So, creating economic products that have the term sharia attached to them is not easy and requires various kinds of adjustments, such as; applicable laws and regulations, contemporary economic developments in global society which tend to be value-free, varied transaction models, and so on. All of this must be able to be adjusted to sharia principles. The problem formulation in this research is: What is the Sharia Economic Dispute Resolution Model seen from Qanun No. 11 of 2018 concerning Sharia Financial Institutions? The type of research used is library research, namely by studying and examining sources. written text that is relevant to the discussion material. The results of this research are a model for Sharia Economic Dispute Resolution after the implementation of Qanun No. 11 of 2018 concerning Sharia Financial Institutions, a model for resolving disputes through non-litigation (outside of court), namely a model for resolving disputes that is carried out using methods that exist outside of court. usually called an alternative dispute resolution institution.

Pertanggungjawaban Hukum Kepada Lender dari Konsep Bisnis Inventory Financing serta Penyelesaian Sengketa

The Inventory Financing business model is starting to develop in the peer-to-peer lending system in Indonesia. The development factor from peer-to-peer lending to Inventory Financing is the existence of collateral that is still controlled by the borrower (debtor). This research examines the legal responsibility of the lender in Inventory Financing, and dispute resolution when one party is negligent in performing its obligations. This article aims to find Inventory Financing arrangements that protect lenders and dispute resolution methods of Inventory Financing. This research uses a normative juridical method (desk research) using secondary data, namely laws and regulations and theories of contract law, development law, and legal protection. The findings in this study are that Inventory Financing is still not regulated, so it has the potential to cause disputes in its implementation. Another finding is that the method of resolving inventory financing disputes can be done through judicial and non-judicial institutions (Alternative Dispute Resolution Institutions). Alternative Dispute Resolution Institutions can be ideal because they can resolve problems quickly, easily, and cheaply.Keywords: Alternative Dispute Resolution Institution, Financial Services Authority, Peer to Peer Lending

Kompleksitas Perceraian Akibat Murtad: Analisis Peran Pengadilan Agama dalam Konteks Hukum Islam

Divorce on grounds of apostasy is a complex research topic within Islamic law. This study explores the legal provisions of apostasy within the context of Islamic marriage law, with a focus on the role of the Religious Courts as dispute resolution institutions. The aim of this research is to investigate whether apostasy can constitute a valid basis for divorce according to the applicable law in the Religious Courts. The research method employed is a normative juridical approach to analyze the legal framework governing divorce cases involving apostasy. The research findings indicate that although apostasy can annul a marriage in religious terms, the Religious Courts do not always grant divorce without evidence of marital discord related to apostasy. This highlights the complexity of applying Islamic law in the context of divorce within the Religious Courts. Analysis of Article 116 (h) of the Compilation of Islamic Law regarding apostasy as a basis for divorce reveals that divorce is determined not only by religious conversion but also by the occurrence of marital discord resulting from apostasy. The implications of this discovery underscore the importance of a comprehensive understanding of Islamic law and contextual considerations in the process of resolving divorce disputes in the Religious Courts.

Conceptualization of the expansion of the Authority of the Supreme Court as a Dispute Settlement Institution for Authority of State Institutions outside the Constitution

The authority to form state institutions outside the constitution, especially Non-Ministry Government Institutions (LPNK) rests with the President based on Article 4 paragraph (1) of the 1945 Constitution of the Republic of Indonesia. The formation of these state institutions is not limited as the regulation on the number of state ministries which limits the number of ministries to 34 (thirty four). This can create the potential for overlapping authorities and authority disputes between state institutions outside the constitution so that it requires a state institution that can resolve them. Based on this, this study will examine related 1) how to reconstruct the President's authority in forming state institutions outside the constitution; and 2) how to conceptualize the extension of the authority of the Supreme Court as a dispute resolution institution for the authority of state institutions outside the constitution. This study uses a normative juridical method with a statutory approach. The results of the study indicate that the President has the authority to form state institutions outside the constitution through his authority in submitting Draft Laws, forming Government Regulations in Lieu of Laws, and forming Presidential Regulations, in which there are no restrictions. Arrangements for the formation of state institutions outside the constitution must be limited as state ministries in Article 15 of the Law on State Ministries. Then the concept of extending the authority of the Supreme Court as an institution for resolving disputes over the authority of state institutions outside the constitution can be taken from the granting of authority through attribution through Article 24A paragraph (1) of the 1945 Constitution of the Republic of Indonesia. The position of the Supreme Court as a constitutional organ and institution of judicial power is independent from other powers so that it has the potential to become an institution for resolving disputes over the authority of state institutions outside the constitution

The Effectiveness of the Government Regulation Concerning Franchises in Resolving Franchise Business Disputes in Indonesia

<p>Franchising is a business system that is growing with the current in Indonesia and the legal relationship between the franchiser and the franchisee is regulated in a contract that regulates the rights and obligations of the parties who have a relationship to comply with the contents of the agreement, which if violated can have consequences for the future law according to the agreement in the franchise agreement. Since the enactment of Government Regulation No. 42 of 2007, franchise business disputes still occur in Indonesia, such as abuse of franchisor authority, quality of technical and managerial support provided by franchisors to franchisees, and unfairness in profit sharing between franchisees and franchisees. This study aims to examine the effectiveness of Government Regulation No. 42 of 2007 as a legal basis for resolving franchise business dispute cases in Indonesia. The research method used is normative legal research with a literature study approach. The results showed that Government Regulation No. 42 of 2007 is a regulation that regulates the mechanism for resolving business disputes in Indonesia, including in the case of franchise business disputes. This research also identifies several challenges that may be faced in the application of Government Regulation No. 42 of 2007 in resolving franchise business dispute cases, such as the complexity of the dispute resolution process, limited access to dispute resolution institutions, and low awareness and understanding of business people regarding the dispute resolution mechanism regulated in the regulation. Steps are needed such as counseling and persuasive approaches to franchise business actors regarding the importance of resolving business disputes through the mechanisms regulated in the regulation, monitoring, and evaluation of the dispute resolution process carried out by the appointed institution.</p>

Bentuk Perlindungan Hukum Penyelesaian Sengketa Pinjaman Online di Indonesia (Suatu Pendekatan Norma Hukum)

The research aims to explore and analyze legal protection for parties in online loan transaction disputes and alternative dispute resolution through online loan application service networks. The type of research is normative legal research (normative research) using a statutory approach, a conceptual approach, analysis of legal materials is carried out by interpreting and assessing related laws and regulations and selecting relevant legal materials. The research results show that legal protection for parties in transaction disputes through the online loan application service network must be based on an agreement based on mutual agreement with the legal online loan provider and a dispute resolution institution must be determined in the initial agreement, carrying out legal enforcement for unlawful acts committed by the provider. and provide, in principle, this protection to protect the rights of debtors as consumers, resolving disputes in online loan transactions for technology-based loan actors because borrowers still do not know in detail the dispute resolution mechanism, Financial Services Authority Regulation Number 77/POJK. 01/2016 Article 29 letter e only regulates the principle of dispute resolution which is carried out simply, quickly and at low cost, the parties can freely choose a dispute resolution institution that has been recommended by the Financial Services Authority.

Conceptualising State-Centric Mediation: An Analysis of China's Foreign Investment Complaints Mechanism

AbstractThis article argues that China's foreign investor complaints system constitutes ‘state-centric investment mediation’. The Rules on Handling Complaints of Foreign-Invested Enterprises, which entered into force on 1 October 2020, place a state agency in the position of facilitating negotiations between a foreign investor and the agency being complained against. The prospects for this complaints system depend on how the state-as-mediator dynamic is perceived by foreign investors. To this end, it will be argued that settlement agreements reached pursuant to this system may be enforceable under the Singapore Convention on Mediation in certain circumstances. Investors and government entities operating similar systems worldwide should be cognisant of the broad drafting terminology of the Singapore Convention. Moreover, it is proposed that further clarification of the procedural rules and the inclusion of China's foreign-related dispute resolution institutions may enhance investor confidence and encourage use of the complaints system.

Predicting Critical Path of Labor Dispute Resolution in Legal Domain by Machine Learning Models Based on SHapley Additive exPlanations and Soft Voting Strategy

The labor dispute is one of the most common civil disputes. It can be resolved in the order of the following steps, which include mediation in arbitration, arbitration award, first-instance mediation, first-instance judgment, and second-instance judgment. The process can cease at any step when it is successfully resolved. In recent years, due to the increasing rights awareness of employees, the number of labor disputes has been rising annually. However, resolving labor disputes is time-consuming and labor-intensive, which brings a heavy burden to employees and dispute resolution institutions. Using artificial intelligence algorithms to identify and predict the critical path of labor dispute resolution is helpful for saving resources and improving the efficiency of, and reducing the cost of dispute resolution. In this study, a machine learning approach based on Shapley Additive exPlanations (SHAP) and a soft voting strategy is applied to predict the critical path of labor dispute resolution. We name our approach LDMLSV (stands for Labor Dispute Machine Learning based on SHapley additive exPlanations and Voting). This approach employs three machine learning models (Random Forest, Extra Trees, and CatBoost) and then integrates them using a soft voting strategy. Additionally, SHAP is used to explain the model and analyze the feature contribution. Based on the ranking of feature importance obtained from SHAP and an incremental feature selection method, we obtained an optimal feature subset comprising 33 features. The LDMLSV achieves an accuracy of 0.90 on this optimal feature subset. Therefore, the proposed approach is a highly effective method for predicting the critical path of labor dispute resolution.

What constitutes “unreasonable delays” in finalising court cases that led to the withholding of members' retirement benefits?

This paper discusses the approaches of both the High Court and the Office of the Pension Funds Adjudicator regarding delays that generally occur in the finalisation of court cases instituted by employers against their employees who are retirement-fund members. Particularly when such employees are alleged to have caused their employers’ economic loss and employers wish to be compensated from their retirement benefits. This paper demonstrates that, while the concept of “unreasonable delay” is relied upon to determine whether retirement funds should release retirement benefits to their members pending the finalisation of employers’ cases against them, both the courts and the adjudicator are yet to develop a workable test that can adequately guide them whendeciding such disputes. This has also exposed retirement funds to continuous litigation regarding decisions that they take, in order to withhold their members’ retirement benefits. This paper argues that there is a need for the judicial development of a test that can guide both the dispute-resolution institutions and boards of retirement funds on how employers’ requests for the withholding of retirement funds’ members’ benefits based on courtcases instituted by employers should be addressed. Particularly, when there are delays in the finalisation of such court cases.

Tanggung Jawab Wali Amanat Kepada Pemegang Obligasi Dalam Hal Wali Amanat Melakukan Kelalaian Terhadap Kontrak Perwaliamanatan

The trustee is the party responsible for assisting the implementation of bond issuance and transactions in the capital market. In the implementation of bond issuance, the role of the trustee is crucial in creating legal protection for bondholders. The purpose of this study is to clearly understand the duties and responsibilities of the trustee towards bondholders as well as the legal protection rights possessed by bondholders if the trustee commits acts of negligence under capital market law. The results showed that the trustee must make compensation as a form of legal protection to bondholders in accordance with the regulations contained in the laws and regulations in the field of capital market and bondholders who feel aggrieved can ask the trustee for compensation by means of consensus deliberation or dispute resolution at an alternative dispute resolution institution established by the Service Authority Finance (OJK). Bondholders can also prove to court because the losses suffered are the result of the negligence of the trustee who represents them in a bond issuance process.

Using res judicata to resolve jurisdictional conflicts between WTO and regional trade agreements’ dispute settlement mechanisms

The WTO has a renowned dispute settlement body, distinguished from other dispute settlement bodies by its compulsory and exclusive jurisdiction. However, regional trade agreements provide for rights and obligations similar to those guaranteed by the WTO thus, causing material jurisdictional overlaps between the WTO institutions and regional dispute resolution institutions. Potentially, a State aggrieved by measures that contravene rights or obligations within such overlaps has two alternative fora for dispute resolution. Where the regional trade agreement dispute resolution mechanism resolves the dispute first, the compulsory and exclusive nature of the WTO jurisdiction allows the matter to be re-determined at the WTO level, causing jurisdictional conflicts and duplicative proceedings. Although it is an established principle in customary international law, res judicata is not provided in any of the instruments guiding the jurisdiction of the WTO dispute settlement system. The jurisprudence of WTO Panels and the Appellate Body are also thin on this matter. Seemingly, the inclination has been to exercise the compulsory and exclusive jurisdiction, without regard to other existing fora. This paper therefore suggests clear recommendations to be employed in widening the existing WTO jurisprudence on res judicata as a solution to jurisdictional conflicts. In doing so, this paper further acknowledges the possible criticisms against res judicata in WTO dispute settlement and provides possible solutions to these challenges to ensure the peaceful and harmonious coexistence of the WTO dispute settlement mechanisms vis-à-vis those of regional trade agreements. Using the South American region as an example, this paper enunciates the jurisdictional overlaps and proposes the application of res judicata by the WTO dispute settlement mechanisms in judicial restraint

THE IMPLEMENTATION OF INTELLECTUAL PROPERTY DISPUTE RESOLUTION THROUGH MEDIATION & ARBITRATION

This article aims at determining, describing, and analyzing the application of intellectual property rights through mediation & arbitration from the perspective of Indonesian law and its practice in the Arbitration Regulations of the Indonesian National Arbitration Board. Intellectual Property dispute resolution among the disputing parties by mediation and arbitration (out-of-state court settlement) has not been effective because of limited and lack of socialization from the Government or mediation and arbitration institution. The resolution of IPR disputes has not been effective, this is evident from the results of discussions with the DJKI and the West Java Kanwilkumham, which are still few IPR cases that have been registered to be resolved. Likewise, very few IPR cases have been submitted to the Dispute Resolution Institution.

PERAN OJK DALAM PERLINDUNGAN KONSUMEN PERBANKAN SYARIAH PERSPEKTIF EKONOMI ISLAM

The Financial Services Authority is an independent institution and free from interference from other parties that have functions, duties, authorities as regulation, supervision, and protection. The consumer protection function of the Financial Services Authority is contained in the Financial Services Authority Regulation Number 1 / POJK.07 / 2013 concerning Consumer Protection in the Financial Services Sector, Financial Services Authority Regulation Number 1 / POJK.07 / 2014 concerning Alternative Dispute Resolution Institutions, as well as Consumer Service and Complaint Resolution to Financial Service Institutions contained in the Financial Services Authority Circular Letter Number 2 / SEOJK.07 / 2014. The purpose of this study is to describe the form of implementation of consumer protection based on an Islamic economic perspective carried out by the Financial Services Authority of the Special Region of Yogyakarta (DIY) in handling consumer complaints in the Islamic banking sector. Research methods are qualitative methods through interviews, observation, and documentation. From the research, it is known that the Implementation of the Financial Services Authority in Consumer Protection in the Sharia Banking Sector has been well implemented in accordance with applicable laws and regulations and the application of principles in accordance with consumer protection in an Islamic economic perspective according to Alimin's theory.

Analisis Hukum Ekonomi Syariah Mengenai Online Marketplace Shopee (Studi perbandingan Akad Qardh, Fatwa DSN No 19/DSNMUI/IV/2001 dan ketentuan perjanjian Fitur "SPinjam")

This study aims to determine how the Qardh Akad Analysis in the SPinjam Feature on the Shopee Application. Shopee Pinjam (SPinjam) is an online cash loan product that offers loans with a fast, safe, minimal risk and unsecured process. So that SPinjam becomes an alternative for people who need funds. because Indonesia is a majority Muslim community, this Marketplace must be adjusted to Sharia provisions. There is no Fatwa specifically related to the Marketplace. The formulation of the problem in this study How is the mechanism of Terms and Conditions of Shopee Pinjam Services for Loan Recipients on the Shopee Application, How is the Analysis of the Conformity of Qardh Akad with the Terms and Conditions of Shopee Pinjam Services for Loan Recipients on the Shopee Application and How is the Analysis of DSN-MUI Fatwa No: 19/DSNMUI/IV/2001 with the Terms and Conditions of Shopee Pinjam Services for Loan Recipients on the Shopee Application.This type of research is library research, the data analysis method uses normative descriptive methods, uses a fatwa approach and inductive thinking. The results of this study indicate that: Users of the SPinjam feature in the Shopee application are Shopee application users who have reached the gold member level with a certain credit limit. The loan consists of a disbursement fee of 1% monthly installment fee (5%/month) and a monthly SPinjam protection fee (0.25%/month). The conformity between DSN MUI Fatwa No.19/DSN-MUI/IV/2001 and the SPinjam Terms and Conditions of Service document can be concluded that it is not fully in accordance with the provisions of sharia principles. The conflicting points of the SPinjam Document are related to the following; loan repayment system in the form of credit, late fees, loan interest, risk of credit failure for borrowers and dispute resolution institutions

Political and Cultural Boundaries in the Conflict between Indonesia and China in the South China Sea

China's unilateral claim to an area in the South China Sea, which it calls the nine-dash line, the traditional fishing ground, has triggered boundary conflicts in border countries. In this context, Indonesia calls the area that intersects the North Natuna Sea based on the 1982 United Nations Convention on the Law of the Sea (UNCLOS). This difference in perception is alarming to the international relations between the two countries. This paper aims to analyze how international law views the position of political and cultural boundaries as the basis for claims to an area. This way, dispute resolution with a win-win solution perspective can be formulated in the South China Sea case. The analysis results show that political and cultural boundaries have justification and legitimacy based on international law. Political boundaries emphasize the State's commitment to translating agreements into international treaties bilaterally, regionally, or universally. In contrast, cultural boundaries still require an inventory of the evidence that China's claim is based on, whose legitimacy process must be based on a decision-making institution. However, any legal process will be challenging if the cultural approach is not completed. Apart from that, the essential thing in resolving the South China Sea conflict is the commitment of the State's compliance to international agreements made, decisions of dispute resolution institutions, and settlement steps through a cultural approach.