Melbourne Law School - Theses
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ItemEnforcement of foreign arbitral awards in Indonesia: a legal and practical analysis( 1996)Indonesia has ratified the 1958 New York Convention and promulgated Supreme Court Regulation No 1/1990 as its implementing regulation for the recognition and enforcement of foreign arbitral awards. In addition, Indonesia is also the party to the 1965 ICSID Convention. Therefore, foreign arbitral awards should now be enforceable, in theory at least. Yet, in practice the enforcement of foreign arbitral awards in Indonesia remains uncertain. This thesis examines legal and practical problems related to the enforcement of foreign arbitral awards in Indonesia. They include, first, uncertainty as to the application of the competence-competence principle and non-recognition of the severability principle. Secondly, uncertainty as to the legal status of the colonial laws on arbitration, in particular, the provisions of article 100 of the Reglement op de Burgerlijke Rechtsvordering (Regulation on Civil Procedure for European) which are potentially confusing and lead to ambiguity. Thirdly, and related to the first and second matters, uncertainty remains as to the availability of means of recourse against the arbitral awards and in respect of obtaining leave for enforcement. Finally, there are several unclarified matters in Supreme Court Regulation No 1/1990, in particular, the definition and criteria of "foreign arbitral awards", "commercial law" and “public policy” reservations. In addition, this thesis also analyses the academic drafts for reform of current arbitration law. These drafts deal more comprehensively with the practical implementation of arbitration agreements. They recognise the competence-competence principle, provide for the minimal involvement of court in arbitration proceedings and establish simple procedures for the enforcement of foreign arbitral awards. The drafts do, however, retain Supreme Court Regulation No 1/1990 which requires proof of the existence of a bilateral agreement, commercial matter or law and public policy to enforce foreign awards, thus maintaining long-standing problems in enforcement from a lack of definition in the rules. In addition, the problem of the status of the severability principle is not resolved in the drafts.
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ItemThe Indonesian regime of mineral regulation: analysis of the current system and proposals for reform( 1998)Indonesian mineral law (which places emphasis on state-owned and operated mines) is ineffective because, in practice, the private sector (which comprises mainly foreign investment mining companies) carries out most of today’s major mining operations through a contract system which, to some extent, excludes the law. The Mining Act 1967 authorises state corporations to enter such contracts, in practice however, more than one hundred unratified mining contracts (the so-called ‘Contracts of Work’) have been concluded by the government directly with private parties. The Act limits the activities of national private parties in terms of minerals, size of mineral deposits, and their capacity to involve foreign investors in their mining activities. The situation is now that the government does not have sufficient funds to support state mining corporations. The status of most of these corporations has been changed from ‘state companies’ or ‘public corporations’ to ‘limited liability companies’. Thus, the state’s theoretical monopoly in the mining industry has not been applied in practice. The Mining Act 1967 has not, however, been amended to reflect this. Further, there has been a significant shift in the operational sphere of mining law, mainly due to the introduction of environmental and planning law, as well as a relaxation of the foreign investment regime in response to increasing economic globalisation. Reform is therefore required and, in particular, by adopting the concept of privatisation. With privatisation, foreign investors may be offered opportunities to hold licences, and the law may come to better reflect commercial reality and provide mining ventures with more certainty and security. The first part of this dissertation is a discussion of the current mineral regime. The second part looks at the problem of regime in practice and two cases of land compensation are examined. Part three recommends reforms, including, in particular, changing the types of licence by reducing tiers from six to two (exploration and exploitation licences); introducing a system of legislative ratification for government agreements; the passing of separate regulations for quarrying minerals controlled by governors in provinces; and the changing of the mining council’s power to include arbitration on mining disputes.