Pacta Sunt Servanda Research Articles

Myanmar's Rejection Of The United Nations Resolution: Allowed of Not?

Myanmar's Ministry of Foreign Affairs rejected the Myanmar Ministry of Foreign Affairs calls for an arms embargo and power struggle by the military in a UN general assembly resolution last February because the resolution was considered based on unilateral accusations and false assumptions, and the resolution was deemed not legally binding. In addition, several Myanmar statements have been adopted by the UN security council, which has the authority as well as resolutions deemed legally binding, such as the prohibition of acts of violence against protesters. In addition, the resolution calls on the military not to commit acts of violence as well as restore the democratic transition. The purpose of this study is to find out whether Myanmar may reject the UN General Assembly resolution or not. The study uses normative legal research with a case approach using qualitative descriptive methods to describe the legal reasons used in Myanmar's rejection of the UN General Assembly resolution and how to apply the principle of pacta sunt servanda in this case. The results show that Myanmar rejects the UN resolution calling for an arms embargo because Myanmar considers that the resolution is not legally binding and based on the pacta sunt servanda. Myanmar should accept the UN General Assembly resolution because it binds an agreement to the parties who made it.

EFEKTIVITAS ASAS PACTA SUNT SERVANDA SAAT TERJADI KEADAAN MEMAKSA (FORCE MAJEURE) DALAM HUKUM PERJANJIAN INDONESIA

The effectiveness of the Pacta Sunt Servanda principle in Indonesian treaty law becomes an important subject when force majeure occurs. This principle implies the obligation of parties to comply with the agreed contents of the agreement. However, when events beyond control, such as natural disasters, war, or other unexpected events (force majeure), this principle becomes tested. In this context, the effectiveness of the Pacta Sunt Servanda principle in Indonesian treaty law requires a balance between adherence to the agreed agreement and recognition of unforeseen circumstances that may affect its implementation. Awareness of the legal implications of force majeure is very important for the parties involved in the agreement, to maintain clarity, fairness and order in the implementation of the agreement amid the dynamics of unforeseen circumstances. The Pacta Sunt Servanda principle in Indonesian treaty law is intended to provide equal rights for all parties involved in a contract. However, in force majeure conditions, this principle may not apply due to circumstances that prevent contract compliance. By using a normative juridical approach, this research aims to evaluate the effectiveness of the Pacta Sunt Servanda principle in force majeure. The results of this study show that force majeure is one of the factors that affect the effectiveness of the Pacta Sunt Servanda principle in Indonesian treaty law. Therefore, the application of the Pacta Sunt Servanda principle can be delayed due to force majeure. The consequences are the loss of rights and obligations of the agreement and the non-fulfillment of the rights and obligations stipulated in the contract.

Legal Certainty of Digital Assets Non-Fungible Token (NFT) on The Opensea Platform

The role of technology in everyday life has become more sufficient. This technology results in digitalization which gives rise to digital assets that later become crypto assets that use blockchain technology to store data. The development of these crypto assets presents a technology called Non-Fungible Token (NFT) which is a technology linked to a work of art or other digital assets that serves to protect the artwork or digital assets and as proof of ownership. NFT presents a new way for artists to sell their art more safely and avoid harmful actions. However, the widespread use of NFT technology has created a problem due to the lack of legality regarding NFT. The formulation of the problems discussed in this thesis are: 1. What is the legal certainty for digital assets in the form of Non-Fungible Tokens (NFT) on the Opensea digital platform? 2. What is the legality of Smart Contracts in each transaction of Non-Fungible Token (NFT) through the Opensea digital platform? The research method used is a normative juridical research method, taking a statutory approach and having a descriptive-analytical nature. From the results of this research, can be seen that NFT has not been clearly regulated in Indonesian positive law, resulting in a legal vacuum. Regulations regarding Crypto are regulated by Bappebti as the governing body. Bappebti itself has not specifically regulated NFT regulations in Bappebti regulations. Besides that, other arrangements are seen through the Civil Code which regulates NFT as an intangible object ITE Law which regulates the implementation of the transaction. And regarding the protection of its Intelectual Property Rights through the Copyright Law. Then regarding the validity of the Smart Contract in Non-Fungible Token (NFT) transactions it is considered valid in Indonesian positive law based on the Pacta sunt servanda principle and must be based on the compliance of Article 1320 of the Civil Code.

Pactum De Compromittendo In Shares Purchase Agreement

The parties, namely the Seller and the Buyer have agreed to determine the arbitration clause in the form of a pactum de compromittendo made in writing and incorporated into the deed of the principal agreement for the sale and purchase of shares of PT. Indonesian Rice Granary. This means that since the beginning before the occurrence of a dispute, the choice of settlement has been determined through the Indonesian National Arbitration Board. In 2021, the Seller files a lawsuit against the Buyer as the Defendant through the general court to request that the said share sale and purchase agreement be declared null and void and has no binding force. In their decision, the Panel of Judges stated that in essence the Central Jakarta District Court had no authority to try this case. Regarding the legal considerations, the assembly based the rules in Article 118 HIR and Article 3 of Law no. 30 of 1999 concerning Arbitration and Alternative Dispute Resolution. This study uses a normative juridical approach with the results of the research showing that the enforceability of an arbitration clause in the form of a pactum de compromittendo is binding on the parties according to the pacta sunt servanda principle contained in Article 1338 Paragraph (1) of the Civil Code and the judge's decision as in its considerations is correct and has been according to law.

Legal Analysis of Cryptocurency Utilization in Indonesia

Background. Bitcoin is the world's first digital currency that uses the concept of Cryptocurrency, which is a digital asset designed as a medium of exchange using cryptographic techniques to secure transactions and control the administration of its currency units that are likely to continue to grow in the future. Based on Law No. 7 of 2011 on Currency or cryptocurrencies, Bitcoin cannot be considered as legal tender in Indonesia. Purpose. It is said to be a means of payment because the means of payment in Indonesia is the Rupiah, but based on the Regulation of the Minister of Trade of the Republic of Indonesia Number 99 of 2019, crypto assets are one of the commodities that can be used as the subject of futures contracts traded on futures exchanges. Method. his research uses a statute approach. In addition, a case approach is also used to find out the ratio decidendi used by the Constitutional Court judges in deciding cases of judicial review of laws related to indigenous peoples. Results. This type of research is normative juridical research. The nature of research in this research is descriptive analytical. The type of data used in this research is library research. The validity of crypto asset transactions based on Indonesian contract law which refers to the Civil Code is valid because it fulfills the terms of the agreement in article 1320 of the Civil Code and is supported by the principles contained in the Civil Code itself, including the principle of freedom of contract, the principle of consensualism, the principle of pacta sunt servanda, and the principle of good faith. Therefore, crypto asset transactions are also legalized according to Law Number 11 of 2008 concerning Electronic Information and Transactions (UU ITE) because crypto asset transactions are carried out online through the internet network. Conclusion. The Indonesian government then compiled several rules to accommodate interests as guidelines and clarity for the public regarding the government's recognition of the existence of bitcoin and virtual currencies, namely through the policy of the Minister of Trade of the Republic of Indonesia Number 99 of 2019, and based on the rules of the Bappebti Regulation Number 5 of 2019 concerning Technical Provisions for the Implementation of the Crypto Asset Physical Market on the Futures Exchange.

International and national significance of the realization (implementation) of the norms of international law

The article deals with the most important theoretical and practical issues of the realization (implementation) of international law, examines the concepts, forms and content of the realization (implementation) of international law, finds out the reasons that affect the inefficiency of international law. It is noted that the realization (implementation) of the norms of international law includes two levels: international (collective activity of states) and national (individual activity of the state). Particular attention is paid to the importance of the implementation of the norms of international law and their primacy both over domestic law and over politics in international relations. It is mentioned that in international law the UN Charter enshrined the principle of conscientious observance of international obligations (pacta sunt servanda), which extends its effect to all norms, regardless of functions, purpose, form of expression. According to this principle, each state must fulfill in good faith its obligations arising from the generally recognized principles and norms of international law and specific international treaties. The article argues that this principle is mandatory not only in relations between states, but also extends to the sphere of national law in the context of the implementation of international law. The article emphasizes that in modern conditions the solution of global problems of peace, the stability of the international order, as well as the solution of many domestic problems in the literal sense depends on the effectiveness of international law. An opinion is expressed about the need to develop a unified science of the law of both domestic and international law. Since, just as it is correctly noted in the legal literature, the issues of the realization (implementation) of international law are shifted from the international to the national sphere, due to the fact that a significant number of international legal norms are intended for final implementation within states. Such a statement is true in relation to all branches of international law, in particular in the field of human rights and the protection of the environment. It is indicated that in order to fulfill international obligations, it is required from the state on a national level to ensure the harmonization of their laws and practices with obligations under international law.

The Discretionary Power Vested in the Judge in Evading the Principle of Pacta Sunt Servanda: A case study of pandemics in Jordanian and Egyptian law

The Discretionary Power Vested in the Judge in Evading the Principle of Pacta Sunt Servanda: A case study of pandemics in Jordanian and Egyptian law

International Law and Sustainable Development: Grounds for Cancellation of Africa Debts

Abstract As of April 2020, the IMF categorised seven African countries as being in debt distress, whilst identifying twelve more that were at high risk of becoming distress. It is no longer a secret that considered immutable and eternally binding, debt by the global south (i.e., poor developing African countries) has become a tool for imperial powers in the post-colonial world to enforce and perpetuate their dominance over the global south. This is despite serious global crises that emerge from, and/or were caused by the rich countries of the global north; specifically, the negative effects of the global financial crisis of 2008, devastating impact of Covid-19 pandemic, and impact of Russia–Ukraine war on the African economies and contribution to these debt vulnerabilities. Yet, the rich countries of the global north have insisted on these poor countries to continue financing their debts. The paper considers how African countries could legally cancel the repayment of the debts by relying on the principles of international law (such as pacta sunt servanda, limit to legal obligation to pay, force majeure, State of Necessity or rebus sic stantibus) and States’ declarations to commitment to sustainable development agenda (such as the European Union’s response to the adoption of the 2030 Agenda featured in its Commission’s 2016 Communication) could be used as justifying grounds for cancellation of Africa debts. The paper draws on international law and development in the light of dependency and postcolonial theories and employs the human rights-based approach, interdisciplinary and critical-analytical perspective and using qualitative empirical evidence from rich countries and institutions of the global north and poor developing countries of the global south for analysis.

THE IMPLEMENTATION OF PACTA SUNT SERVANDA PRINCIPLE AS A BASIS FOR MAKING MEMORANDUM OF UNDERSTANDING

Memorandum of Undersatanding is an initial agreement that regulates and provides an opportunity for the parties to conduct a feasibility study before arriving at a more comprehensive agreement. Making a Memorandum of Undersatanding requires the implementation of the principle of pacta sunt servanda to show that the parties have a binding agreement with each other. This research aims to find out how the implementation of pacta sunt servanda principle as the basis for making Memorandum of Undersatanding and how the legal position of Memorandum of Undersatanding. Using normative juridical legal research method with qualitative analysis. The results of this study conclude that the implementation of the principle of pacta sunt servanda as the basis for making Memorandum of Undersatanding is very important to ensure that the parties fulfill their promises and commitments and the agreement is respected and fulfilled by the parties. The legal position of the Memorandum of Understanding from the perspective of contract law is as an informal agreement that is not legally binding, but has strategic and diplomatic importance.

Pacta sunt servanda

Legal maxims written in Latin are a constant in European and American legal cultures, where they have great authority due to perceived antiquity and origins in Roman law. However, sometimes these maxims are actually fairly recent, neologisms that only purport to be ancient. The purpose of this article is to explore one such maxim, pacta sunt servanda, agreements have to be upheld, and the cultural, political and legal connotations and contemporary significances that the phrase has. Through the convoluted history of the maxim pacta sunt servanda, the article explores the role of tradition and history in the making and legimitizing rules.

International Legal Instruments as the Rule of the Game for the Trade in COVID-19 Vaccine

<em>This article discusses international legal instruments that guide the trade in COVID-19 Vaccine. After efforts to discover and develop COVID-19 Vaccine which in fact are in favor of developed countries and high-tech countries as well as rich countries and high-income countries, and then this condition continues to have an impact on the distribution and trade stages resulting in difficulty in accessing the COVID-19 Vaccine fairly and equitably for developing countries and least-developed countries. Tracking international legal instruments from upstream to downstream have been needed to form a comprehensive mindset and find the right of rule of the game of trade in COVID-19 Vaccine. Finally, it was found that various of international legal instruments in form of international agreement that were closely related to the trade in COVID-19 Vaccine is already available, as well as being able to frame the interest of developing countries and least-developed countries on a reasonable basis, that is the occurrence of a national health emergency due to the COVID-19 disease. The principle of pacta sunt servanda must be used as a basic reason that binding all world countries to obey and comply with the contents of international agreement in accordance with the legal will of the competent authorities through the ratification process of that international agreement.</em>

Elephant in the Room: CISG, Hardship, and Uniform Application

It has long been disputed by scholars, courts, and arbitral tribunals whether or not hardship is covered by Article 79 of the CISG. In 2020, the CISG Advisory Council published an opinion and expressed the view that CISG governs cases of hardship but under Article 79, the parties have no duty to renegotiate the contract; and a court or arbitral tribunal may not adapt the contract or bring the contract to an end. Council’s opinion is primarily based on the aim to prevent recourse to domestic law. In fact, if one accepts that CISG contains a gap concerning hardship, domestic law will apply to fill such gap, and this would undermine the unification of the law. However, this can hardly be a reason to accept that cases of hardship are covered by Article 79 CISG. Historical, textual, and teleological interpretation of Article 79 as well as an economic analysis of the concerned remedies show that Article 79 does not cover and/or is not suited to apply to cases of hardship. Therefore, there is an internal gap within the CISG concerning hardship and except for some exceptional cases, where one could find an international trade usage between the parties, the last resort to fill such gap is resorting to the domestic law applicable through private international law. Hardship, adaptation, renegotiation, CISG, external gap, internal gap, pacta sunt servanda, clausula rebus sic stantibus, observance of good-faith in international trade, international trade usage

The Concept of Fairness In The Principle of Decency Reviewed From Business Ethics In Business Contracts

Business agreements are often made only for the benefit of one party so that one party benefits and one party is harmed which only continues to put forward the principle of pacta sunt servanda. It is as if freedom in making a contract is final and absolute without anyone being able to intervene in the contract. This research has the basic purpose of reviewing business agreements judged by the implementation of business ethics as a reasonable consideration or not of a business agreement. The research method used in this study is a normative juridical method with a statute approach. Based on the results of existing research, the principle of propriety is closely related to the reasonableness of the contract agreement. Business agreements are basically formed not only based on consideration of legal provisions but also pay attention to business ethics. So business ethics can be applied as an indicator of the reasonableness of a business contract for the achievement of fairness.

VALIDITY OF STANDARD CLAUSES IN PRODUCT DETAILS ADVERTISED ON E-COMMERCE PLATFORMS IN INDONESIA

The existence of standard clauses contained in various types of agreements until now has always been a controversy over the validity of a contract or agreement. The Civil Code does not specifically regulate the standard clauses contained in the preparation of an agreement. This research is normative by using primary and secondary legal materials. The technique of collecting legal materials that the author uses in this study uses a literature study technique. The legal material analysis technique uses the deductive syllogism method. The results of the study indicate that as long as the agreement is made by the parties bound in the agreement, even though it contains standard clauses in it as long as it does not violate the applicable legal rules, the agreement remains valid and becomes law for those who make it. The best possible agreement is prepared by taking into account the principles of agreement formation such as the principle of freedom of contract, the principle of consensualism, the principle of pacta sunt servanda, the principle of good faith, and the principle of personality. Making an agreement that does not comply with subjective conditions can apply for cancellation of the agreement through the court and if it does not meet the objective requirements, then the agreement is null and void or deemed to have never existed.

국제법상 자연법론에 대한 고찰

The purpose of this study is to review the natural law theory in international law in order to examine some of the limitations of today’s international legal system, that is, the legal system based on voluntaristic legal positivism, and to consider the modern implications of natural law theory. Today, it is difficult to find international law scholars who take natural law as their legal theory. Even if there are natural law theorists, they may simply be referring to or emphasizing morality/justice rather than taking an approach based on “true law” or metaphysics like the classical natural law theorists. Therefore, there may be more cases of doubts on the necessity of studying natural law. Nevertheless, there is significance in studying natural law. This is because it is difficult to say that there are no remnants of natural law in the international legal system today. Historical study of natural law has been taken in order to comprehend how it has changed its nature throughout the history of international law. Furthermore, the inter-related thesis of (classical) natural law has been identified. Even though it is difficult to find the adherents of natural law today, the traces of natural law could be identified. Traces such as pacta sunt servanda, opinio juris, general principles of law, obligation of reparation, jus cogens, right of self-defence, equity, and human rights are discussed. Apparently, depending on your point of view, these issues may not be traces of natural law theory. However, in this study, it will be stated that there is a part to increase the understanding of the international legal system through the study of natural law theory. The fact that natural law was influential until the 19th century means that this jurisprudence could not have evaporated in an instant. It does not simply mean that there was a transitional period. There may be remnants of natural law in today’s international legal system, and they may still be affecting it. Therefore, an understanding of natural law may be necessary to deeply examine the limitations of today’s international legal system.

Application of the Pacts Sunt Servanda Principles in the settlement of business Disputes through Arbitration

Arbitration is a means of resolving business disputes that is most similar to a court body and is considered to have many advantages over other alternative dispute resolutions. Pacta Sunt Servanda is one of the main principles of Arbitration, which states that the settlement produced in a settlement is binding on the parties, like a law must be faithfully executed. Arbitration must be respected and followed by the parties in addition to their obligation to resolve conflicts through mediation. Pursuant under Article 3 of the Arbitration and Alternative Dispute Resolution Act No. 30 of 1999, if parties to a commercial dispute have engaged in an arbitration settlement, The District Court isn't entitled to make your mind up among the parties. A normative approach to legal principles is used in this work. This research is descriptive-analytical, and it collects secondary data from legal materials such as laws and regulations, literature, and legal documents relevant to arbitration law utilizing a document study data gathering tool, contract law and legal certainty theory, where the research results will be analyzed qualitatively.

Penerapan Asas Pacta Sunt Servanda Pada Perjanjian Lisan Antara Nelayan Pemilik Bagang Ikan Teri (PENJUAL) Dengan Pembeli Di Desa Tanggetada, Kecamatan Tanggetada

This study aims to analyze the Application of the Pacta Sunt Servanda Principle in Oral Agreements Between Fishermen Who Have Anchovy Bagang (sellers) and Buyers in Tanggetada Village, Tanggetada District. The formulation of the problem posed, How is the application of the principles of the agreement to the verbal agreement between fishermen who own anchovy bagang and buyers in the village of Tanggetada, Tanggetada sub-district and What are the legal consequences of not applying the principles of the agreement to an oral agreement between fishermen who own anchovy bagang and buyers, Type the study used the Normative-Empirical research method where the results showed that the application of the pacta sunt servanda principle from the buyer was not fulfilled where in the agreement between the seller and the buyer had agreed on a price of 500,000. but the buyer only paid 400,000. so that the buyer violates the agreement that has been made. Legitimate legal consequences based on Article 1388 of the Civil Code, namely all agreements made legally apply as laws to those who make them, an agreement cannot be withdrawn other than by agreement of both parties or for reasons stated by law. , and an agreement must be implemented in good faith. The consequences for buyers who violate the principle of pacta sunt servanda are giving compensation as stipulated in article 1246. an agreement cannot be withdrawn other than by agreement of both parties or for reasons stated by law, and an agreement must be carried out in good faith. The consequences for buyers who violate the principle of pacta sunt servanda are giving compensation as stipulated in article 1246. an agreement cannot be withdrawn other than by agreement of both parties or for reasons stated by law, and an agreement must be carried out in good faith. The consequences for buyers who violate the principle of pacta sunt servanda are giving compensation as stipulated in article 1246.

The Implementation of Oil and Gas Cooperation Contract Based on the Legal Principles of Pacta Sunt Servanda and The State’s Right to Control Land, Water and Natural Wealth Pursuant to Article 33 Paragraph (3) of The 1945 Constitution of The Republic of

The legal relationship that is born from the oil and gas contract is binding as law for the parties who make it. This is because the formation of oil and gas contracts is in accordance with Article 1320 of the Civil Code and therefore based on Article 1338 paragraph (1) of the Civil Code, the government and contractors are legally bound to comply with all provisions in the oil and gas contract. However, considering the fact and investment sentiment towards the oil and gas industry in Indonesia that is decreasing, especially regarding investor confidence in legal certainty in Indonesia, it is necessary to have a significant increase and improvement in oil and gas contracts in Indonesia. Managing upstream business activities using a contract system has its own peculiarities because the upstream oil and gas business has many risks and given that the government also has many limitations. Another peculiarity is that in the oil and gas contract, one of the parties is the government which is constitutionally in the realm of private and public law simultaneously. The juridical question here is, what is the impact of the position of the Government as a party to an agreement that can change the laws and regulations in the oil and gas sector which results in the certainty of oil and gas contracts and justice for the parties? What is the ideal oil and gas contract that puts the parties in a balanced position? This dissertation will look at how the application of laws and regulations, both in the fields of public law and civil law, in oil and gas contracts and find out why legal uncertainty in the application of oil and gas contracts is still a problem today. In addition, this dissertation discusses the application of oil and gas contracts and examines the legal relationship that has occurred so far and looks for ideal points from oil and gas contracts from both government and private parties. The research will be conducted using the juridical normative research methodology and the data collected is secondary data (consisting of primary, secondary and tertiary legal materials). In conclusion, in the implementation of oil and gas contracts, apart from the level of implementation, there are several legal restructurings that can have an impact on the creation of a better legal relationship between the government and oil and gas contractors in implementing oil and gas contracts.

Pacta Sunt Servanda – A Maxim and Its Exceptions in Comparative Perspective

Pacta Sunt Servanda – A Maxim and Its Exceptions in Comparative Perspective

Stabilization Clause, Unilateral Variation of Terms and the Petroleum International Agreement

The objective of this study is to highlight the multiplicity of scenarios regarding issues of stability and underscore certain stability stipulations in the contemporaneous application, and certain developments, which gives a great cause for concern to parties to Petroleum International Agreements (PIAs) Amongst which are the recurrent problem of the impossibility of performance occasioned by supervening circumstances and disequilibria in relationships occasioned by events, which render the possibility of performance onerous. The study found that pacta sunt servanda cannot apply in absolute terms when ranged against the consideration of sovereignty of the state party over the natural resources in situ within its territorial sovereignty. It concluded that it is inconceivable to have immutable PIAs whose terms are frozen in time and or incorporate stabilization clauses that are contrived to freeze the HC’s laws; or remove the PIA from the purview of the municipal law of the HC.