The dispute resolution process in Indonesian civil proceedings follows the Dutch civil law tradition. There are no discovery proceedings and the principle of stare decisis does not apply. Both the winning and the losing party bear their own legal costs except unless otherwise agreed. Injunctive measures are possible but, except for security attachments, rare.
Indonesia has specialised courts and proceedings for bankruptcy, antitrust, anti-corruption, tax, military, religious, fishery, and labour matters.
Domestic arbitral awards are enforced by district courts where the losing party is domiciled, while foreign arbitral awards must be registered with the Central Jakarta District Court for enforcement by the district court located where the losing party is domiciled.
The majority of civil disputes are subject to a mandatory round of mediation proceedings supervised by the mediator and the concerned court. Proceedings on merits will only commence once the mandatory round of mediation has failed.
The disputing parties, based on their mutual agreement, can also go for an out-of-court settlement for their dispute during the appeal, cassation or case review stages, as long as the dispute has not been adjudged with a final and binding decision.
Indonesia has a special arbitration act that enables arbitration proceedings and mediated settlements to be enforced through Indonesian district courts. In recent times there has been an increase in confidence that in case of breach of an arbitration award or mediated settlement, remedies are now enforceable through Indonesian courts, which in the past remained a crucial question mark.
Documentary evidence is the most common. The parties are, however, free to submit various forms of other permitted types of evidence that support their positions. The parties may, for example, submit expert testimony, which can provide evidence to the judicial panel on matters that are technically complicated, and may be subjected to cross-examination. Indonesian courts do not recognize a “pre-trial discovery procedure”.
However, the rules of civil procedure permit the parties to obtain specific evidence submitted by the opposing parties. If the opposing parties disregard these orders, then a court may draw the conclusion that such items of evidence are not favourable to the parties who disregard such orders. Even though there is no pre-trial discovery, the parties have the opportunity to examine the evidence submitted by the opposing parties during the evidence stage. The possibility exists to question the origins and legality of written evidence submitted by the opposing parties, and based on this procedure, courts may examine and determine whether the documents, the legality of which is being questioned, may or may not be used as evidence. Indonesian courts also have the power to summon witnesses to give testimony or to order the submission of certain documents to be entered as evidence.
APPEAL, CASSATION, CASE REVIEW
An appeal can be filed by a party whose interest is harmed as a result of a first-instance decision. An appeal process is a re-examination of the first-instance court decision and will cover the factual and evidentiary issues, as well as questions of law. At appeal, the parties may present new evidence and submit a memorandum/counter-memorandum, however the High Court is not compelled to consider the appeal memoranda.
Cassation to the Supreme Court is the third stage of the judicial process.
In the context of civil procedure, the Supreme Court is competent only to examine cases falling within general civil matters. Unlike appeal at High Court level, the Supreme Court’s competence in a cassation is limited to ensuring that the material and procedural laws are applied consistently. As such, the court will not entertain evidentiary questions and will focus on the application of the law by the lower courts, including resolving any unsettled questions of law.
Case Review is the re-examination of a decision by the Supreme Court and is available to the appellant after a decision on cassation has been rendered. There are several grounds available to apply for case review: fraud, new evidence, lack of basis, contradiction, judicial error, etc.
ENFORCEMENT OF DECISIONS
A judicial decision may only be enforced if such decision is either: (1) final and binding, or (2) if by virtue of a court order the decision may be executed notwithstanding appeals or other legal processes. A decision is considered final and binding if the parties do not appeal the decision, or available appeal avenues are exhausted. Note that a party that has not resorted to case review does not prevent a decision from being executed.
MOHAMED IDWAN (KIKI) GANIE is the managing partner at Lubis Ganie Surowidjojo.
Lubis Ganie Surowidjojo
Menara Imperium, 30th Fl. Jl. H.R. Rasuna Said
Kav. 1 Jakarta 12980, Indonesia
Tel: +62 21 831 5005/5025
Fax: +62 21 831 5015/5018
Email: [email protected]