RULES & PROCEDURES
Rules Of Arbitral Procedure Of The Indonesia National Board Of Arbitration
Article 1. Arbitration Agreement
If the parties to a commercial agreement or transaction have agreed in writing that disputes in relation to that agreement or transaction shall be referred to arbitration before the Indonesian National Board of Arbitration (“BANI”), or under the Rules of BANI, then such dispute shall be settled under the administration of BANI in accordance with these Rules, subject to such modifications as the parties may agree in writing, so long as such modifications do not contradict mandatory provisions of law nor the policies of BANI. Amicable resolution of dispute through arbitration at BANI shall be based on goodwill of the parties based on cooperative and non-confrontational procedures.
Article 2. Prevailing Procedure
These Procedural Rules shall apply to arbitrations conducted by BANI. By designating BANI and/or choosing the BANI Procedural Rules for resolution of a dispute, the parties to the agreement or dispute shall be deemed to have agreed to waive the process of case examination through the District Court in connection with the agreement or dispute, and to execute any award made by the Arbitration Tribunal based on the BANI Procedural Rules.
Article 3. Definitions
Unless specifically stipulated otherwise, the terms below shall have the following definitions when referred to herein:
a. “BANI Arbitration Tribunal” or “Tribunal”, in capital letters or small letters, shall be the Tribunal formed according to the BANI Procedure and comprising one or three or more arbitrators;
b. “Award”, in capital letters or small letters, shall be any award rendered by the Tribunal either interim or final;
c. “BANI” shall be the Indonesian National Arbitration Board;
d. “Board” shall be the governing board of BANI;
e. “Chairman” shall be the Chairman of the Board of BANI, unless and if it is clearly stated that what is meant is the Chairman of the Arbitration Tribunal. The BANI Chairman may appoint a Vice Chairman or other Member of the Board to perform the duties of the Chairman, as set forth in these Rules, for one or more specific arbitral references, in which case reference to the Chairman in these Rules will mean that the Vice Chairman or other member of the Board designated;
f. “Claimant” shall mean and refer to one or more claimants, or parties bringing the arbitral reference;
g. “Law” shall mean and refer to Law of the Republic of Indonesia No. 30 of 1999 regarding Arbitration and Alternative Dispute Resolution;
h. “Respondent” shall mean and shall refer to one or more Respondents or the parties to whom the petition for arbitration is addressed or against whom the arbitral reference is brought.
i. “Parties” shall mean the Claimant and the Respondent;
j. “Procedural Rules” or “Rules” shall mean and refer to the stipulations of these BANI Procedural Rules prevailing at the time of commencement of the arbitration, with due regard to the certain agreements that may have been made by the parties concerned, one and or another by observing the provision of Article 1;
k. “Secretariat” shall mean and refer to the administrative facility of BANI which shall be responsible for registration of the arbitral reference and other matters of an administrative nature in furtherance of the arbitration process.
l. “Secretary of the Tribunal” shall mean and refer to the secretary designated by BANI to assist in the administration of the arbitration proceeding in question; and
m. “Writing”, in capital letters or small letters, shall include not only documents written or printed on paper but also electronically created and/or transmitted documentation; such writings to include not only agreements but also exchange of correspondence, minutes of meetings, telex, telefax, e-mail and other such communications; and no agreement, document, correspondence, notice or other instrument which is required to be in writing shall be denied legal effect solely for the reason that it is contained in an electronically created or transmitted message.
Article 4. Submission, Written Notice, and Deadline
1. Submission of written communication and number of copies
All written communication submissions to each party, together with each and every supporting document, must be handed over to the BANI Secretariat to be registered with adequate number of copies to enable BANI to give a copy of each communication to each party, to each of the arbitrators, and for filing at the BANI Secretariat. For this purpose, the parties and/or their attorneys must guarantee that BANI at any time shall have the latest address and telephone number, fax, e-mail that are relevant to the communication required. Each communication sent directly by the Tribunal to the parties shall be copied to the Secretariat and each communication sent by the parties to the Tribunal must be copied to the other party and to the Secretariat.
2. Communication with the Tribunal
Once the Arbitral Tribunal has been constituted, no communication shall be made by any party with any one or more of the arbitrators in any way relating to the arbitral reference except: (i) in the presence and/or with participation of the other party (if verbal); or (ii) with a copy sent simultaneously to the other party or parties, and to the Secretariat (if written).
Each notice that has to be given based on these Rules, unless the Tribunal instructs otherwise, must be given directly, through courier, facsimile or e-mail and shall be considered effective on the date of receipt or if the date of receipt cannot be determined, on the day after the delivery in question.
4. Time Calculation
Any period of time specified in or fixed under these Rules or under any applicable agreement to arbitrate, shall commence on the day following the date the notice or communication is deemed to be effective, as provided in Rule 4, paragraph (3), above. Where the expiration date of any notice or time limit falls upon a Sunday or Indonesian national holiday, such time limit shall expire on the next business day following such Sunday or holiday.
5. Calendar Days
Reference to numbers of days in these Rules shall refer to calendar days.
6. Quick Resolution
By referring resolution of dispute to BANI in accordance with these Rules, all parties agree to pursue resolution of such dispute in good faith, endeavoring at all times to effect resolution of such dispute as quickly and efficiently as possible, not to take any unnecessary delaying action nor other step to impede the smooth and just arbitral process.
7. Proceeding Deadline
Unless specifically agreed upon by the parties, the proceeding shall be completed within a period of not longer than 180 (one hundred eighty) days from the date of composition of the full Tribunal. In special conditions where the dispute is of a highly complex nature, the Tribunal shall be empowered to extend the deadline upon notice to the parties.
Article 5. Representatives of Parties
1. The Parties may be represented in the arbitration by an individual or individuals chosen by them. In the first submission, namely in the Petition for Arbitration from the Claimant and likewise in the Reply of the Respondent on the Petition, each party must state the name, address data, and information as well as the position of each individual representing the party in the arbitration and such designation must be supported by a special power of attorney special duly stamped with enough copies as stipulated in Article 4 paragraph (1) above] giving the right to the individual to represent the party in question.
2. However, if a party is represented by a foreign advisor or a foreign legal advisor in an arbitration case relating to dispute that abides by the Indonesian law, the foreign advisor or the foreign legal advisor may attend only if he is accompanied by an Indonesian advisor or legal advisor.
Commencement of Arbitration
Article 6. Petition for Arbitration
1. The arbitral procedure commences with the registration and filing the Petition for Arbitration by the party initiating recourse to arbitration (the “Claimant”).
2. Designation of Arbitrator
In the petition for arbitration, the Claimant and in its reply on the petition the Respondent may designate an arbitrator or hand over the designation to the BANI Chairman.
Petition for Arbitration must be accompanied by payment of the registration fee and the administrative fee in accordance with the BANI regulation.
The administrative fee shall include the administrative fee of the Secretariat, proceedings expenses and arbitrators fee.
If a third party beyond the arbitration agreement participates and joins in the process of dispute resolution through arbitration as referred to by article 30 of Law No. 30 of 1999, then the third party shall be obliged to pay the administrative fee and other fees in connection with the participation.
4. Examination of arbitration case shall not be commenced before the administrative fee has been settled by the parties in accordance with the BANI regulation.
Article 7. Registration
1. After receiving the Petition for Arbitration and documents as well as the registration fee required, the Secretariat shall register the Petition in the BANI register.
2. The Board of BANI shall review the petition to determine whether or not the arbitration agreement or arbitration clause in the contract is adequate to provide a basis of authority for BANI to examine the dispute.
Article 8. Response of Respondent
1. If the Board determines that BANI is authorized to adjudicate the dispute, then after registration of the Petition, one or more Secretaries of the Tribunal must be designated to assist in the administration of the arbitration case.
2. The Secretariat shall give a copy of the Petition for Arbitration and the attached documents to the Respondent, and request the Respondent to submit its written response within a period of not longer than 30 (thirty) days.
Within a period of not longer than 30 (thirty) days after receiving the submission of Petition for Arbitration, the Respondent shall be obliged to submit its Reply. In the Reply, the Respondent may designate an arbitrator or hand over the designation to the BANI Chairman. If, in the reply, the Respondent does not designate an arbitrator, then it shall be considered that the designation has absolutely been handed over to the BANI Chairman.
4. Extension of Period
The BANI Chairman shall be authorized, at the request of the Respondent, to extend the period for submission of reply and or the designation of an arbitrator by the Respondent with legitimate reasons, on the condition that the extension of period may not exceed 14 (fourteen) days.
Article 9. Individuals empowered to be Arbitrators
1. Arbitration Panel
Except in special situations as referred to in Article 9 paragraph (2) below, only those who are recognized included in the list of arbitrators provided by BANI and/or having ADR/Arbitration certificate recognized by BANI may act as arbitrators based on these Rules that may be chosen by the parties.
The BANI list of arbitrators shall comprise arbitrators meeting the requirements, residing in Indonesia and in various jurisdictions throughout the world, either legal experts or non-legal practitioners and experts such as engineers, architects, and other individuals meeting the requirements. The list of arbitrators from time to time may be reviewed, added or amended by the Board.
2. External Arbitrator
In the event that the nature of the dispute requires an arbitrator possessing special expertise to properly adjudicate the dispute referred to BANI, a petition may be filed with the Chairman of BANI to designate an arbitrator who is not listed in the BANI list of arbitrators on the condition that the arbitrator concerned meets the requirements referred to in paragraphs 1 above and 3, below. Each petition must clearly state the reason for the need for such an external arbitrator together with a complete curriculum vitae of the arbitrator being proposed. If the Chairman of BANI considers that there is no arbitrator in the BANI list of arbitrators with the required professional qualification, whilst the arbitrator requested does possess such qualification, is neutral and independent, then the Chairman of BANI may, based on his own consideration, approve the designation of the arbitrator.
If the Chairman of BANI does not approve the designation of the external arbitrator, the Chairman must recommend, or designate, with his own choice, an arbitrator alternative chosen from the BANI list of arbitrators or an expert meeting the requirements in the required field but is not registered in the BANI list of arbitrators. The Board may consider the designation of a foreign arbitrator who is recognized on the condition that the foreign arbitrator meets the qualification requirements and is prepared to comply with the BANI Procedural Regulation, including the stipulation regarding arbitrator fee, whereby the designating party shall be obliged to bear the travel, accommodation and other extraordinary expenses related to the designation of the foreign arbitrator.
Besides possessing ADR/Arbitration certificate as referred to in paragraph 1 above and/or other qualification recognized by BANI, all arbitrators must possess requirements as follows:
a. authorized or qualified to take legal actions;
b. being at least 35 years of age;
c. not having familial relationship based on descent and marriage down to the third generation, with any of the parties in dispute;
d. not possessing financial interest or anything whatsoever on the result of arbitration resolution;
e. experienced for at least 15 years and mastering actively the relevant field;
f. not serving or acting as judge, prosecutor, clerk of court, or other government official.
4. Statement of Independence
Arbitrators who have been appointed in accordance to BANI Rules to handle the case, shall be obliged to sign a Statement of Independence as provided by BANI Secretariat.
5. Indonesian Law
If according to the arbitration agreement the dispute is governed by Indonesian law, at least one arbitrator, preferably but not necessarily the Chair, shall be a law graduate or practitioner who knows Indonesian law well and resides in Indonesia.
Article 10. Composition of Tribunal
1. Sole Arbitrator
If the Tribunal is to comprise only one sole arbitrator, the Claimant may, in the petition for arbitration, propose to the Chairman one or more individuals meeting the requirements as a recommendation to act as sole arbitrator. If the Respondent accepts one of the candidates nominated by the Claimant, with the approval of the Chairman, the individual may be designated as sole arbitrator. However, if there is no candidate nominated by the Claimant that is acceptable to the Respondent, unless both parties agree on a Tribunal comprising three arbitrators, the Chairman of BANI shall be obliged to immediately designate an individual who shall act as sole arbitrator, which designation may not be rejected or objection may not be lodged by either party except on demonstrable grounds of lack of independence or impartiality. If the parties do not accept a sole arbitrator, and/or the Chairman considers that the dispute in question is of a complex nature and/or the scale of the dispute in question or the quantum in dispute is such that a Tribunal comprising three arbitrators is clearly warranted, then the Chairman shall inform the parties of the matter and a period of 7 (seven) days shall be given to them each to designate an arbitrator chosen by them and if this is not complied with then the stipulation in Article 10 paragraph (3) below shall apply.
2. Designation Failure
In any case in which either party shall fail to designate or appoint an arbitrator within the time limitation as set out herein within not more than 14 (fourteen) days from notice or request to do so, taking into consideration the provision in Article 8 (3), the Chairman shall be authorised to make such appointment on behalf of that party.
3. In Case of Three Arbitrators
If the Tribunal is to consist of three arbitrators, in case both parties have appointed their respective arbitrators, the Chairman of BANI will appoint an arbitrator to preside the Tribunal.
The appointment of the arbitrator who will preside the Tribunal shall take place after taking into consideration the proposals from the respective arbitrators of both parties which choice can be made from the list of BANI arbitrators.
4. If Number is not Fixed
If the parties have not agreed earlier regarding the number of arbitrators (such as one or three arbitrators), the Chairman shall be empowered to rule, based on the nature, complexity, and scale of the dispute in question, whether the case in question requires one or three arbitrators and, in such case, the stipulations in the previous paragraphs of Article 10 shall apply.
5. Multiple Parties
In case there are more than two parties in the dispute, then all of the parties acting as Claimant(s) shall be considered as a single party Claimant with regard to designation of arbitrator, and all parties being claimed against shall be considered as a single party Respondent for purposes of designation of an arbitrator. In the event that such multiple parties cannot agree upon the designation of an arbitrator within the allotted time frame, the selection of an arbitrator shall be deemed to have been left to the Chairman of BANI, who shall make the selection on their collective behalf.. In special situations, if requested by a majority of the parties in dispute, the Chairman of BANI may approve the formation of a Tribunal comprising more than 3 arbitrators. Additional third parties may join in an arbitration case only insofar as this is allowed based on the stipulation of Article 30 of Law No. 30/1999.
6. Authority of Chairman of BANI
Final decision or approval regarding the designation of all arbitrators shall be in the hands of the Chairman of BANI. In giving such approval, the Chairman may request additional information in connection with the independence, neutrality and/or criteria of the arbitrators being nominated. The Chairman may also consider the citizenship of the arbitrator nominated in connection with the citizenship of the parties in dispute by observing the standard requirements prevailing at BANI.
The Chairman shall make an effort to ensure that the decision with regards the arbitrator designation is made or approved within a period of not longer than 7 (seven) days from the time the matter is submitted to him.
7. Acceptance of Arbitrators
An arbitrator candidate, within a period of 7 (seven) days from his or her designation, shall submit to BANI curriculum vitae and a written statement of willingness to act as arbitrator, in which statement he or she shall disclose any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence.
Article 11. Challenge/Recusal of an Arbitrator
Any arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality or independence. A party wishing to make such challenge shall so notify BANI in writing within 14 (fourteen) days from the time it is advised of the identity of such arbitrator, attaching documentation establishing the basis for such challenge. Or, if the information which forms the basis of the challenge becomes known to the challenging party thereafter, such challenge must be submitted within 14 (fourteen) days after such information becomes known to the challenging party.
BANI shall be obliged to review the exhibits through a special team and convey the result to the arbitrator being challenged and the other parties regarding the challenge. If the arbitrator being challenged agrees to resign, or another party agrees with the challenge, a replacement arbitrator shall be designated in the same manner as in the case of designation of the recused arbitrator, based on the stipulations in article 10 above. Otherwise BANI may, but not required to, approve the recusal, in which case the Chairman of BANI shall designate a replacement arbitrator.
3. Recusal Failure
If the other party or arbitrator does not agree to the challenge, and the Chairman of BANI also considers that the challenge is groundless, then the arbitrator being challenged shall continue his duties as arbitrator.
4. Recusal of Designating Party
A party may challenge the arbitrator designated by itself only for reasons of which such party becomes aware after the appointment has been made.
Article 12. Replacement of an Arbitrator
1. Death or Disability
In the event, during the course of the arbitral proceedings, of the death or incapacitation of an arbitrator, a substitute arbitrator shall be appointed pursuant to the same paragraph of article 10 as was applicable to the appointment or choice of the arbitrator being replaced.
2. Resignation of Arbitrator
The candidate or the arbitrator having conflict of interests with the case or the parties in dispute shall be obliged to resign.
Otherwise, once the Tribunal has been constituted, no arbitrator may resign from his/her post, except in the event he is challenged in accordance with the stipulations of this Rules of Procedures and laws and regulations.
3. Failure to Act
In case an arbitrator fails in performing his duties, on a de jure or de facto basis, to the extent that it becomes impossible for him to perform his function, as determined by the Chairman of BANI, then the procedure related to recusal and replacement of an arbitrator in accordance with the stipulations in Article 11 shall apply.
4. Repetition of Proceedings
If based n Articles 11, 12(1), or 12(3), a sole arbitrator is replaced, then proceedings, including the hearings conducted earlier must be repeated. If the Chairman of the Tribunal is replaced, each testimony hearing session earlier may be repeated if deemed necessary by the other arbitrators. If any other arbitrator is replaced, the other arbitrators shall brief the new arbitrator and no prior hearings shall be repeated except in extraordinary circumstances where, and to the extent that, the Tribunal, in its sole discretion, deems necessary in the interests of natural justice. The repetition of any hearings for above reasons may be taken into account and, if the Tribunal deems it appropriate, the deadline for completion of case examination in the proceeding referred to in Article 4 paragraph (7) may be extended.
Article 13. General Stipulations/Proceedings
1. Authority of Tribunal
After the formation or designation based on the stipulations in Chapter III above, the Arbitration Tribunal shall examine and rule on the dispute between the parties on behalf of BANI and therefore may exercise all of the authority possessed by BANI in connection with examination and passing of resolutions on the dispute in question. Before and during the proceeding period the Tribunal may make an effort to encourage amicable resolution between the parties. The effort to achieve amicable resolution shall not affect the deadline for examination in the proceeding referred to in Article 4 paragraph (7).
All proceedings shall be conducted closed to the public, and all matters related to the arbitral reference, including documents, reports/notes on sessions, testimonies of witnesses and awards, shall be kept in strict confidence among the parties, the arbitrators and BANI, except to the extent required by law or otherwise as may be agreed by all parties to the dispute.
3. Natural Justice
Subject to these Rules and applicable law, the Arbitral Tribunal may conduct the arbitration in any such manner as it considers appropriate, provided that the parties are treated with equality and that at any stage of the proceedings each party is given a fair and equal opportunity of presenting its case.
4. Venue of Hearings
Hearings shall be conducted at a venue designated by BANI, and the agreement of the parties but may also be at another venue if deemed necessary by the Tribunal with the agreement of the Parties. The Arbitration Tribunal may request that meetings be held to examine assets, other goods, or documents at any time and at the required place, with notice as required to the parties, to allow them to be able to attend the examination. Internal meetings and sessions of the Tribunal may be held at any time and venue, including over the internet, if the Tribunal deems this appropriate.
Article 14. Language
1. Language of Proceedings
If the parties have not agreed otherwise, the process of case examination shall be conducted in the Indonesian language, unless the Tribunal, taking into consideration the situation (such as existence of foreign parties and/or foreign arbitrators who cannot speak Indonesian, and/or where the transaction arising from the dispute is conducted in another language), deems it appropriate to use the English language or another language.
2. Document Language
If the original documentation submitted or relied upon by the parties in the submission of the case in question in a language other than the Indonesian language, then the Tribunal shall be empowered to determine whether or not the original documents must be accompanied by translation into the Indonesian language, or from the Indonesian language to another language. However, if the parties agree, or the Tribunal designates, that the language used in the case shall be a language other than the Indonesian language, then the Tribunal may request that the documents be submitted in the Indonesian language accompanied with translation by a sworn translator in the English language or the other language to be used.
If the Tribunal and/or any party requires the assistance of an interpreter during the proceeding, such interpreter shall be provided by BANI at the request of the Tribunal, and the fee of the interpreter shall be borne by the parties as deemed appropriate by the Tribunal.
4. Award Language
The Award shall be prepared in the Indonesian language, and if requested by one party or otherwise deemed appropriate by the Tribunal, in the English language or another language. In case the original Award document is prepared in the English language or another language, an official translation shall be provided by BANI for registration purposes, and the cost for this shall be borne by the parties as instructed by the Tribunal.
Article 15. Applicable Law
1. Governing Law
The law that shall govern the substance of the dispute shall be the law that has been designated so to govern in the underlying commercial agreement between or among the parties in connection with which the dispute has arisen. In the absence of any such prior agreement by the parties as to the law that shall govern, the parties shall be free to designate the governing law on their mutual agreement. In the absence of any such agreement, the Tribunal shall have the authority to apply such rules of law as it deems appropriate, considering the circumstances of the matter.
2. Contract Stipulations
In applying the governing law, the Tribunal shall take into account the provisions of the underlying agreement as well as relevant trade practices and usage.
3. Ex Aequo et Bono
The Tribunal may assume the powers of an amiable compositeur and or decide ex aequo et bono where, and to the extent that, the parties have so agreed.
Article 16. Petition for Arbitration
The petition for arbitration which includes Statement of Claim submitted to BANI will be distributed to each member of the Tribunal and to the other party (or parties).
The Petition for Arbitration must contain at least:
a. Name and address of each of the parties;
b. Information regarding facts supporting Petition for Arbitration;
c. Points at issue; and
d. The amount of relief or other remedy sought.
The Claimant shall annex to the Statement of Claim a copy of the underlying agreement or agreements between or among the parties in connection with which the dispute has arisen and a copy of the agreement to arbitrate (if not included in the aforesaid underlying agreement), and may also annex all other documents deemed by the Claimant to be relevant. If additional documents or other evidence are intended to be submitted at a subsequent time, the Claimant should make reference to these in the Statement of Claim.
Article 17. Statement of Defense
Within a period of not longer than 30 (thirty) days the Respondent must submit its Statement of Defense to BANI to be conveyed to the Tribunal and the Claimant.
The Respondent shall, in its Statement of Defense, address the matters enumerated under (b) and (c) of Article 16 paragraph (2) above. The Respondent may also annex to its Statement the documents on which it relies for its defense or shall make reference to any additional documents or other evidence intended to be submitted at a subsequent time.
a. If the Respondent wishes to assert against the Claimant a counter-claim or set-off arising in connection with the dispute or in relation to the Claimant’s claim, Respondent may submit such counter-claim or set-off together with its Statement of Defense or as the latest as the first hearing. The Tribunal shall have the authority, on application by the Respondent, to allow such counter-claim or set-off to be submitted at a later date if Respondent can establish that such delay is justified in accordance with the stipulations of Article 6 paragraphs (1) and (2) and Article 16 paragraphs (2) and (3).
b. Separate costs and fees shall be assessed with respect to such counter-claim or set-off in the same manner as for the primary claim, as provided in these Rules and the current schedule of fees as promulgated by BANI from time to time. Provided such additional fees and costs have been paid by the parties, the counter-claim or set-off will be heard, considered, and decided simultaneously and jointly with the original claim
c. Failure of the parties, or either of them, to pay the fees and costs assessed with respect to any counter-claim or set-off will not prevent nor delay continuation of the arbitral reference with respect to the main claim, which, provided the fees and costs have been paid with respect to such main claim, shall proceed as though no counter-claim or set-off had been asserted.
4. Response to Counter-claim
In the event that the Respondent has submitted a counter-claim or set-off, the Claimant (being a respondent thereunder) shall be afforded a period of thirty (30) days, or such other time limit as the Tribunal may deem appropriate, to submit its Answer to the counter-claim or claim for set-off, following the provisions of Article 17 paragraph (2) above.
Article 18. Jurisdiction
1. Competenz Competenz
The Tribunal shall have the power to rule on any objection that it does not have jurisdiction, including any objection with respect to the existence or validity of the agreement to arbitrate.
2. Independent Arbitration Clause
The Tribunal shall be empowered to determine the existence of validity of an agreement in which the arbitration clause constitutes a part. For the purposes of this Rule an arbitration clause which forms part of a contract and which provides for arbitration under these Rules shall be treated as an agreement independent of the other terms of the contract. A determination by the Tribunal that a contract is annulled by law shall not automatically annul the validity of the arbitration clause.
3. Denial Deadline
A contention that the Tribunal does not have jurisdiction shall be raised not later than in the Statement of Defense or, with respect to a counter-clam or set off arising in connection with the dispute in the Answer to the counter-claim or set off.
4. Interim Award
Normally, the Tribunal should rule on a plea concerning its jurisdiction as a preliminary question. However, if it deems appropriate, the Tribunal may proceed with the arbitration and rule on such a contention in their final Award.
Article 19. Documents and Other Rulings
1. Procedural Hearing
After receipt of the submissions, the Tribunal must determine, on its sole discretion, whether or not the dispute can be resolved based on the documents alone, or it is necessary to call the parties to appear at a hearing. For such purpose the Tribunal may call for an initial procedural hearing, at which the schedule for other submissions, if any, and for hearings, if any, as well as other procedural matters shall be discussed with and/or communicated to the parties, either directly or through the BANI Secretariat.
2. Procedural rulings
The Tribunal shall, subject to these Rules, have full authority to determine the procedure and to make such rulings as it deems appropriate, which rulings shall be binding upon the parties. If the Tribunal deems it necessary, it may draw up Terms of Reference to be signed by the Tribunal and the parties. In any case the Secretary of the Tribunal shall take minutes of the proceedings and rulings of the Tribunal, which minutes, when signed by the Tribunal, shall constitute conclusive documentation of the proceedings.
Should either of the parties wish to make a record of the proceedings, or any part thereof, upon approval of the Tribunal such party may engage the services of an independent reporter or secretary who shall deliver each transcript to the Tribunal for distribution to all parties. The costs of any such transcript shall be borne by the party or parties requesting same, such costs to be paid in advance to BANI for remittance by BANI to the reporter upon receipt of proper invoicing therefor.
4. Payable Fee
The examination of a case and/or session shall not be conducted before all of the arbitration fees, as notified by the Secretariat to the parties based on the extent of the scale of the demand and the list of expenses that from time to time are announced by BANI, have been settled by one of or both parties.
5. Interlocutory Award
The Tribunal shall have the authority to make any provisional award or other interlocutory decision it may deem appropriate to regulate the manner of running the dispute, including decreeing a security attachment, ordering the deposit of goods with third parties, or the sale of perishable goods. The Tribunal shall be entitled to require security for the costs of any such measures.
The Tribunal shall have authority to impose sanctions on any party which fails or refuses to comply with any ruling made by the Tribunal or otherwise engages in conduct which impedes the smooth adjudication of the dispute by the Tribunal.
Article 20. Effort to Seek Amicable Resolution
1. Amicable Resolution
The Tribunal shall first endeavor to encourage the parties to make an amicable settlement either on their own or with assistance of an independent third party mediator or facilitator or with the assistance of the Tribunal if it is agreed upon by the parties.
2. Award on Amicable Agreement
If such a settlement can be reached, the Tribunal will prepare a written memorandum of such settlement, which memorandum shall have the force of a consent Award and shall be binding upon both parties and enforceable in the same manner as an Award of the Tribunal.
3. Failure to Resolve Amicably
If no settlement can be reached, the Tribunal will continue the arbitral procedure in accordance with these Rules.
Article 21. Default in Appearance
1. Failure of Claimant
In case the Claimant fails and/or does not come to the first session conducted by the Tribunal without a legitimate reason, then the Tribunal may declare the Petition for Arbitration annulled.
2. Failure of Respondent
In the event that the Respondent fails to submit its Response and/or its Statement of Defense, the Tribunal shall send written notice to the Respondent and allow a further time period of not more than fourteen (14) days in which to submit its Defense and/or appear at a hearing. In the event that the Respondent neither appears at a hearing, if properly called, nor submits its written Defense, the Tribunal shall send a second notice to the Respondent to appear or submit its Defense. If the Respondent fails to respond for the second time without any valid reason, the Tribunal may decide and make its award based upon the documents and evidence which have been submitted by the Claimant.
Article 22. Amendments and Subsequent Submissions
Once the submissions, as aforesaid, have been completed, and once the initial hearing has been held, the parties shall not have the right to amend their Claims and/or Responses in any material manner, unless the Tribunal and all parties agree to such amendments. No claim may, however, be amended in such a manner that the amended claim falls outside the scope of the agreement to arbitrate.
2. Subsequent Submissions
The Tribunal shall decide which further evidences and/or written statements, in addition to the Statement of Claim and the Statement of Defense, shall be required from the parties or may be presented by them and shall fix the periods of time for submitting such statements. The Tribunal shall not be required to consider any additional submissions other than those which it has ruled to be appropriate.
Article 23. Evidence and Hearings
1. Burden of Proof
Each of the parties has the burden to explain its respective position, to submit evidence substantiating such position and to prove the facts relied upon it in support of its claim or defense.
2. Summary of Exhibits
The Tribunal may, if it considers it appropriate, require the parties either to address any enquiry or present any documentation the Tribunal deems necessary, and/or to present a summary of all documents and other evidence which that party has presented and/or intends to present in support of the facts in issue set out in its Statement of Claim or Statement of Defense, within such time limits as the Tribunal shall deem appropriate
3. Weight of evidences
The Tribunal shall determine the admissibility, relevance, materiality and weight of the evidence offered
If the Tribunal considers it necessary, and/or at the request of either party, expert witnesses or witnesses as to facts may be summoned. Such witnesses may be required by the Tribunal to present their testimony in a written statement first, on the basis of which the Tribunal shall determine, on its own or upon request of either party, whether oral testimony of any such witness shall be required
5. Expenses of Witnesses
The party requesting the summons of a witness or expert witness must pay in advance all of the cost related to the presence of the witness. For this purpose the Tribunal may request that on the payment a deposit be made first to BANI.
Before giving their testimonies, the witnesses or expert witnesses may be requested to take an oath.
7. Conclusion of Proceeding
If the submission of exhibits, testimonies and proceedings are considered adequate by the Tribunal, the proceeding on the dispute shall be closed by the Chairman of the Tribunal who subsequently may designate a session for the final award announcement.
Article 24. Revocation of Arbitration
So an persidangan telah dianggap cukup oleh Majelis, maka persidangan mengenai sengketa tersebut ditutup oleh Ketua Majelis yang kemudian dapat menetapkan suatu sidang untuk penyampaian Putusan akhir.
Pasal 24. Pencabutan Arbitrase
Sepanjang Majelis belum mengeluarkan putusannya, Pemohon berhak mencabut tuntutannya melalui pemberitahuan tertulis kepada Majelis, pihak lain dan BANI. Namun demikian apa¬bila Termohon telah mengajukan Surat Jawaban, dan/atau tuntutan balik (rekonvensi), maka tuntutan hanya dapat dicabut kembali dengan persetujuan Termohon. Apabila para pihak sepakat untuk mencabut tuntutan/perkara setelah sidang dimulai, maka pencabutan tersebut dilakukan dengan penetapan putusan oleh Majelis.
2. Pengembalian Pembayaran Biaya-biaya.
Dalam hal persidangan belum dimulai, seluruh ongkos yang dibayar, kecuali biaya pendaftaran, dikembalikan kepada Pemohon dimana dilakukan perhitungan dengan biaya-biaya administrasi Sekretariat BANI yang telah dikeluarkan. Apabila persidangan atau rapat-rapat musyawarah telah dimulai, maka biaya administrasi, termasuk ongkos-ongkos yang menjadi hak para arbiter yang dianggap wajar oleh Ketua BANI, setelah berkonsultasi dengan Majelis, akan diperhitungkan dalam pengem¬balian tersebut.
BAB VI Putusan
Pasal 25. Putusan Akhir
Majelis wajib menetapkan Putusan akhir dalam waktu paling lama 30 hari terhitung sejak ditutupnya persidangan, kecuali Majelis mempertimbangkan bahwa jangka waktu tersebut perlu diperpanjang secukupnya.
Pasal 26. Putusan-Putusan Lain
Selain menetapkan Putusan akhir, Majelis juga berhak menetapkan putusan-putusan pendahuluan, sela atau Putusan-putusan parsial.
Pasal 27. Mayoritas
Apabila Majelis terdiri dari tiga (atau lebih) arbiter, maka setiap putusan atau putusan lain dari Majelis, harus ditetapkan berdasarkan suatu putusan mayoritas para arbiter.
Apabila terdapat perbedaan pendapat dari arbiter mengenai bagian tertentu dari putusan, maka perbedaan tersebut harus dicantumkan dalam Putusan.
Apabila diantara para arbiter tidak terdapat kesepakatan mengenai putusan atau bagian dari putusan yang akan diambil, maka putusan Ketua Majelis mengenai hal yang bersangkutan yang dianggap berlaku.
Pasal 28. Penetapan-penetapan Prosedural
Untuk hal-hal yang bersifat prosedural, apabila tidak terdapat kesepakatan mayoritas, dan apabila Majelis menguasakan untuk hal tersebut, Ketua Majelis dapat memutuskan atas pertimbangan sendiri.
Pasal 29. Pertimbangan Putusan
Putusan harus dibuat tertulis dan harus memuat pertimbangan-pertimbangan yang menjadi dasar Putusan tersebut, kecuali para pihak setuju bahwa pertimbangan-pertimbangan itu tidak perlu dicantumkan.
Putusan Majelis ditetapkan berdasarkan ketentuan-ketentuan hukum atau berdasarkan keadilan dan kepatutan.
Pasal 30. Penandatanganan Putusan
Putusan harus ditandatangani para arbiter dan harus memuat tanggal dan tempat dikeluarkannya. Apabila ada tiga Arbiter dan satu dari mereka tidak menandatangani, maka dalam Putusan tersebut harus dinyatakan alasannya.
Pasal 31. Penyampaian
Dalam waktu 14 (empat belas) hari, Putusan yang telah ditandatangani para arbiter tersebut harus disampaikan kepada setiap pihak, bersama 2 (dua) lembar salinan untuk BANI, dimana salah satu dari salinan itu akan didaftarkan oleh BANI di Pengadilan Negeri yang bersangkutan.
Pasal 32. Final dan Mengikat
Putusan bersifat final dan mengikat para pihak. Para pihak menjamin akan langsung melaksanakan Putusan tersebut.
Dalam Putusan tersebut, Majelis menetapkan suatu batas waktu bagi pihak yang kalah untuk melaksanakan Putusan dimana dalam Putusan Majelis dapat menetapkan sanksi dan/atau denda dan/atau tingkat bunga dalam jumlah yang wajar apabila pihak yang kalah lalai dalam melaksanakan Putusan itu.
Pasal 33. Pendaftaran
Kerahasiaan proses arbitrase tidak berarti mencegah pendaftaran Putusan pada Pengadilan Negeri ataupun pengajuannya ke Pengadilan Negeri dimanapun dimana pihak yang menang dapat meminta pelaksanaan dan/atau eksekusi Putusan tersebut.
Pasal 34. Pembetulan Kesalahan-Kesalahan
Dalam waktu paling lama 14 (empat belas) hari setelah Putusan diterima, para pihak dapat mengajukan permohonan ke BANI agar Majelis memperbaiki kesalahan-kesalahan administratif yang mungkin terjadi dan/atau untuk menambah atau menghapus sesuatu apabila dalam Putusan tersebut sesuatu tuntutan tidak disinggung.
Pasal 35. Daftar Biaya
Biaya arbitrase ditetapkan dalam suatu daftar terpisah dan terlampir pada Peraturan Prosedur ini. Daftar tersebut dapat diperbaiki atau diubah dari waktu ke waktu apabila dipandang perlu oleh BANI.
Pasal 36. Pembayaran Biaya
BANI harus menagih kepada setiap pihak setengah dari estimasi biaya arbitrase, dan memberikan jangka waktu secepatnya untuk membayarnya. Apabila suatu pihak lalai membayar bagiannya, maka jumlah yang sama harus dibayarkan oleh pihak lain yang kemudian akan diperhitungkan dalam Putusan dengan kewajiban pihak yang lalai membayar tersebut.
BANI atas permintaan Majelis yang bersangkutan dapat meminta penambahan biaya dari waktu ke waktu selama berlangsungnya arbitrase apabila Majelis menganggap bahwa perkara yang sedang diperiksa atau besarnya tuntutan ternyata telah meningkat daripada yang semula diperkirakan.
Pasal 37. Alokasi
Majelis berwenang menentukan pihak mana yang harus bertanggung jawab untuk membayar, atau melakukan pengembalian pembayaran kepada pihak lain, untuk seluruh atau sebagian biaya-biaya itu, pembagian mana harus dicantumkan dalam Putusan.
Pada umumnya apabila salah satu pihak sepenuhnya berhasil dalam tuntutannya maka pihak lawannya memikul seluruh biaya dan apabila masing-masing pihak berhasil memperoleh sebagian dari tuntutan¬nya, biaya-biaya menjadi beban kedua belah pihak secara proporsional.
Pasal 38. Biaya-biaya Jasa Hukum
Kecuali dalam keadaan-keadaan khusus, biaya-biaya jasa hukum dari masing-masing pihak harus ditanggung oleh pihak yang memakai jasa hukum tersebut dan biasanya tidak akan diperhitungkan terhadap pihak lainnya. Namun apabila Majelis menentukan bahwa suatu tuntutan menjadi rumit atau bahwa suatu pihak secara tidak sepatutnya menyebabkan timbulnya kesulitan-kesulitan atau hambatan-hambatan dalam kemajuan proses arbitrase, maka biaya jasa hukum dapat dilimpahkan kepada pihak yang menimbulkan kesulitan tersebut.
Pasal 39. Biaya-biaya Eksekusi
Biaya-biaya eksekusi Putusan ditanggung oleh pihak yang kalah dan yang lalai untuk memenuhi ketentun-ketentuan dalam Putusan.
Pendapat yang Mengikat dan Klausula Arbitrase
Pendapat yang Mengikat
Tanpa adanya suatu sengketa, BANI dapat menerima permintaan yang diajukan oleh para pihak dalam suatu perjanjian, untuk mem-berikan suatu pendapat yang mengikat mngenai sesuatu persoalan berkenaan dengan perjanjian tersebut.
BANI dapat diminta memberikan pendapat yang mengikat misalnya mengenai: penafsiran ketentuan-ketentuan yang kurang jelas, dalam kontrak penambahan atau perubahan pada ketentuan-ketentuan berhubungan dengan timbulnya keadaan-keadaan baru, dan lain-lain.
Dengan diberikannya pendapat oleh BANI tersebut, kedua belah pihak terikat padanya dan siapa saja dari mereka yang bertindak bertentangan dengan pendapat itu, akan dianggap melanggar perjanjian.
BANI menyarankan kepada para pihak yang ingin menggunakan arbitrase BANI, untuk mencantumkan dalam perjanjian-perjanjian mereka klausula standard sebagai berikut:
“Semua sengketa yang timbul dari perjanjian ini, akan diselesaikan dan diputus oleh Badan Arbitrase Nasional Indonesia (BANI) menurut peraturan-peraturan administrasi dan peraturan-peraturan prosedur arbitrase BANI, yang keputusannya mengikat kedua belah pihak yang bersengketa sebagai keputusan tingkat pertama dan terakhir”.