Indonesia Law Review最新文献

{"title":"THE DEVELOPMENT OF ASEAN'S INTELLECTUAL PROPERTY RIGHTS LAW; FROM TRIPS COMPLIANCE TO HARMONIZATION","authors":"N. Barizah","doi":"10.15742/ILREV.V7N1.247","DOIUrl":"https://doi.org/10.15742/ILREV.V7N1.247","url":null,"abstract":"Intellectual Property Rights (IPR) is one of the most important subjects of trading, not only in the era of globalism, but also in this era of regionalism.  In the regional ASEAN, its significant of IPR protection has made Member Nations introduced ASEAN Framework Agreement on Intellectual Property (IP) Cooperation in 1995, a year after the conclusion of the Trade-related Aspects of Intellectual Property Rights (TRIPs) Agreement of the World Trade Organization (WTO). This paper discusses  the current development of this Framework in the light to harmonise Intellectual Property (IP) laws in the region, covering  the objectives, the basic principles, and some substantial provisions. Then, it examines whether fast pace of IP laws development in ASEAN have been mainly driven by this Framework Agreement or the countries’s deadline to comply with the TRIPs obligations. This paper also examines whether the regional economic cooperation of ASEAN Free Trade Agreement (FTA) with their trading partners pay a specific attention to the issue of IPR. By taking into account the different level of national IPRs laws, and its current development, it can be concluded that the ASEAN framework on IP Cooperation is rather ambitious. The Working Groups succeeded in developing draft on regional filing forms for IP registration, but the progress in the introduction of the system has been very slow. Abstrak Hak Kekayaan Intelektual (HKI) merupakan salah satu subyek perdagangan yang sangat penting, tidak hanya di era globalisasi, tetapi juga di era regionalisasi. Dalam regional ASEAN,  pentingnya perlindungan HKI telah membuat negara-negara anggota menyepakati Kerangka Perjanjian Kerjasama Kekayaan Intelektual tahun 1995, setahun setelah disepakatinya Perjanjian yang terkait dengan Hak Kekayaan Intelektual (TRIPs) yang diprakasai Organisasi Perdagangan Dunia (WTO).  Tulisan ini mendiskusikan perkembangan terakhir Kerangka Perjanjian Kerjasama tersebut dalam rangka mengharmonisasikan HKI di wilayah ASEAN yang meliputi, tujuan, prinsip-prinsip dasar, dan beberapa ketentuan penting. Kemudian, tulisan ini menguji apakah perkembangan hukum HKI yang sangat cepat di ASEAN digerakkan oleh Kerangka Perjanjian Kerjasama ini atau karena deadline negara-negara anggota ASEAN untuk menyesuaikan dengan kewajiban-kewajiban yang disepakati dalam Perjanjian TRIPs. Tulisan ini juga menguji apakah kerja sama ekonomi regional dalam Perjanjian Perdagangan Bebas (FTA) - ASEAN dengan negara mintra dagangnya memberikan perhatian khusus pada issue HKI. Dengan mempertimbangkan hukum nasional mengenai HKI di negara-negara anggota ASEAN yang berbeda-beda levelnya, and perkembangannya yang terakhir, dapat disimpulkan bahwa Kerangka Perjanjian Kerjasama HKI ini cukup ambisius. Kelompok kerja yang dibentuk  telah sukses mengembangkan draft tentang pengisian formulir aplikasi regional untuk pendaftaran HKI, tetapi perkembangan diperkenalkannya sistem ini masih sangat lambat sekali.","PeriodicalId":13484,"journal":{"name":"Indonesia Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-04-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43356662","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Human Trafficking Drug Trafficking, And The Death Penalty","authors":"Felicity Gerry, Narelle Sherwill","doi":"10.15742/ILREV.V6N3.263","DOIUrl":"https://doi.org/10.15742/ILREV.V6N3.263","url":null,"abstract":"Both Australia and Indonesia have made commitments to combatting human trafficking.  Through the experience of Mary Jane Veloso it can be seen that it is most often the vulnerable ‘mule’ that is apprehended by law enforcement and not the powerful leaders of crime syndicates. It is unacceptable that those vulnerable individuals may face execution for acts committed under threat of force, coercion, fraud, deception or abuse of power. For this reason it is vital that a system of victim identification is developed, including better training for law enforcement, legal representatives and members of the judiciary. This paper builds on submissions by authors for Australian Parliamentary Inquiry into Human Trafficking, and focusses on issues arising in the complex cross section of human trafficking, drug trafficking, and the death penalty with particular attention on identifying victims and effective reporting mechanisms in both Australia and Indonesia. It concludes that, in the context of human trafficking both countries could make three main improvements to law and policy, among others, 1) enactment of laws that create clear mandatory protection for human trafficking victims; 2) enactment of criminal laws that provides complete defence for victim of human trafficking; 3) enactment of corporate reporting mechanisms. Systemic protection and support is not sufficiently available without clear legislative protection as this paper suggests together with standardised referral mechanisms and effective financial reporting mechanisms. The implementation can be achieved through collaborative responses and inter-agency coordination with data collection and properly trained specialists.","PeriodicalId":13484,"journal":{"name":"Indonesia Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67352857","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"FINDING A FAIR LAND DISPUTE SETTLEMENT MECHANISM BETWEEN ADAT LAW COMMUNITY VS. INVESTOR","authors":"R. Lestarini","doi":"10.15742/ilrev.v6n3.252","DOIUrl":"https://doi.org/10.15742/ilrev.v6n3.252","url":null,"abstract":"Land utilization for investment in local areas raises various land related problems that ends with conflicts within the community. A conflict that occurs, usually begins with the management of communal land “ tanah ulayat ” within the adat law community environment, and in this case, land utilization that is managed by the third party (investors). The basic problem is the difference of perception and expectations toward the company that exists in the land which is claimed by the community. Both parties have their own claim on the land based on each legal systems, in this situation adat law or local law faced with state law which is used by investors. So far, the Indonesian government has yet to have legal grounds in giving a directions for land dispute/conflict settlement mechanism. This paper attempts to give an input regarding a land dispute settlement mechanism that can be accepted for all disputing parties. The paper features critical analysis using legal pluralism approach towards related government policies and technical regulations in the ministerial level. These regulations, among others are, Minister of Agrarian Regulation No. 5 of 1999 on the Guidance for Dispute Settlement of Communal Land Rights, and Ministry of Agrarian and Spatial Affairs Regulation No. 9 of 2015 on Procedures of Appointment of Communal Land Rights for Adat Law Community and Communities Located in certain regions, also the draft of Law regarding Recognition and Protection of Adat Law Community.","PeriodicalId":13484,"journal":{"name":"Indonesia Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-12-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67352696","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Are you Wo(man) enough to get married","authors":"Tiurma M. P. Allagan","doi":"10.15742/ILREV.V6N3.219","DOIUrl":"https://doi.org/10.15742/ILREV.V6N3.219","url":null,"abstract":"Indonesian marriage states that marriage is physical and spiritual relationship between a man and a woman as husband and wife in order to create an eternal happy family based on the Almighty God. This definition reflects that the marriage in Indonesia must be between heterosexual couple. However, a question appears as to whether a man or a woman mentioned thereof is included a man and a woman who were, hermaphrodite, intersex, or nowadays known as person with Disorder of Sexual Development (DSD)? The case of AH whereby his marriage is cancelled by the Supreme Court in 2014 for he is not considered as a man, is confirming that this question is important to value the capacity of a person to marry. This writing will apply normative research as well as literature research method upon the positive rules and regulations. The decisions of district courts upon the revision or change of gender and its legal basis will be analysed and be the topic of discussion. Comparison will be applied to compare the marriage requirements between Indonesian Law, Singapore Law and Hong Kong Law. The results of analyse and discussion will be the closure of the writing, as conclusions and advise, if any.","PeriodicalId":13484,"journal":{"name":"Indonesia Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-12-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67352803","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"MINING LAW & REGULATORY: PRACTICE IN INDONESIA","authors":"Tri Hayati","doi":"10.15742/ILREV.V6N3.264","DOIUrl":"https://doi.org/10.15742/ILREV.V6N3.264","url":null,"abstract":"Mining law, since before the Indonesian independence has already been a debatable topic between the business sector, Government, and other stakeholders until now. Several issues of mining law that have been debated among others, are: the form of concession and the authority for issuing mining licenses in relations with the right of state control stipulated under Article 33 paragraph (3) of the 1945 Indonesian Constitution, issues regarding taxes and royalties, environmental issues and other obligations. Since the enactment of Indische Mijn Wet 1899 until the enactment of Law No. 4 of 2009, these debates have yet to be settled; more, other serious issues are rising. These issues are steeply raised since the beginning of the reformation era of Local Governance which was marked by the enactment of Law No. 22 of 1999 that gives the power for the Municipal/City level Government to regulate the mining sector.","PeriodicalId":13484,"journal":{"name":"Indonesia Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-12-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67352991","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"DEBUNKING THE RELATIONSHIP BETWEEN LAW AND CAPITALISM: HOW CORPORATE GOVERNANCE FAILURES CONTRIBUTE TO THE FINANCIAL CRISIS IN INDONESIA?","authors":"M. Y. Salampessy, N. L. Sopian","doi":"10.15742/ilrev.v6n3.190","DOIUrl":"https://doi.org/10.15742/ilrev.v6n3.190","url":null,"abstract":"The recent global financial catastrophe has raised questions about the relationship between corporate governance and the crisis. Many scholars attribute the crisis to the corporate failure and the Anglo-Saxon model of capitalism. Much of the literatures, however, tend to focus on examining the issue of financial crisis in the developed economy. Following up this line of literatures, this paper will extend the discussion of the role of corporate governance in financial crisis in the developing world. Using Indonesia as a case study, this paper will look at evidence that has emerged from the recent financial crisis regarding the failures of corporate governance in addressing and preventing the crisis.","PeriodicalId":13484,"journal":{"name":"Indonesia Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-12-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67352318","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Biodiversity Beyond National Jurisdiction: Current Debate and Indonesia's Interest","authors":"Gulardi Nurbintoro, Haryo Budi Nugroho","doi":"10.15742/ILREV.V6N3.213","DOIUrl":"https://doi.org/10.15742/ILREV.V6N3.213","url":null,"abstract":"The drafters of the 1982 UN Convention on the Law of the Sea (UNCLOS) have left behind a lacunae in terms of the regulations concerning Biodiversity in the Areas Beyond National Jurisdiction (BBNJ). As living organisms are found in the deep seabed in areas beyond national jurisdiction, as well as the utilization of marine genetic resources beyond national jurisdiction for commercial purposes, States are currently deliberating on the proper regime in dealing with the management and exploitation of the biodiversity. Some States argue that Part XI UNCLOS applies hence BBNJ is also part of the Common Heritage of Mankind. On the other hand, some States believe that Part VII UNCLOS applies which will allow individual States to exploit the resources in accordance with the principle of the freedom of the high seas. Since 2004, the UN General Assembly has established a Working Group to discuss the issue. Indonesia as a Party to UNCLOS which in general advocates the importance of the rule of law in the oceans has the interest that the discussion in the UN will allow developing countries, including Indonesia, to enjoy the result of the exploration and exploitation of non-mineral resources at the bottom of the ocean.","PeriodicalId":13484,"journal":{"name":"Indonesia Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-12-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67352498","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Effectiveness of National Collective Management Organization Regulation","authors":"A. Sardjono, B. Prastyo, Desrezka Gunti Larasati","doi":"10.15742/ILREV.V6N3.250","DOIUrl":"https://doi.org/10.15742/ILREV.V6N3.250","url":null,"abstract":"Law Number 28 of 2014 concerning Copyright in Article 89 provides for two National Collective Management Organizations (briefly referred to as LMKN), both of which represent the interests of Authors and the Owners of Related Rights. Both of the said organizations possess the authority to impose, collect, and distribute royalty obtained from commercial users. The Minister of Law and Human Rights inaugurated commissioners assigned to the said Authors’ LMKN and Related Rights LMKN. The LMKN is bound to have an operational effect on previously existing LMKs in Indonesia. Therefore, the objective of this study is to assess whether the existing LMKs feel that their needs are accommodated by the introduction of the LMKN. This research also aims to reveal the causing factors of the conflict which has been occurring between LMK and Authors/ Musicians/Singers, between LMKs, and between LMK and Commercial Users of Songs/Music. This research also aims to elaborate on the existing regulation patterns concerning LMKs worldwide. The research will be conducted by using the normative and empirical legal research method. Normative research will be conducted to examine the normative aspects of LMK and LMKN. On the other hand, empirical research will be aimed at understanding and analyzing the outlook of actors, particularly LMKs existing prior to the 2014 Copyright Law coming into effect. This research is expected to come up with recommendations concerning the regulation of music/song LMKs in Indonesia in the future.","PeriodicalId":13484,"journal":{"name":"Indonesia Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-12-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67352589","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Urgency for Legal Framework on Drones: Lessons for Indonesia, India, and Thailand","authors":"Ridha Aditya Nugraha, Deepika Jeyakodi, Thitipon Mahem","doi":"10.15742/ILREV.V6N2.229","DOIUrl":"https://doi.org/10.15742/ILREV.V6N2.229","url":null,"abstract":"Civilian drones are revolutionizing the skies, ushering in several beneficial possibilities and along with it several questions. From checking damage to a roof and aerial photography to border patrolling and emergency response, drones are increasingly put to civil and commercial use. Such a common use requires regulation. Technology has always grown exponentially, whereas the law governing such technology has to contend with such growth. Developed western countries are not the only ones grappling with reigning in these drones. The unique geographic conditions and national interests of Indonesia, India, and Thailand, find more utility for civilian drones, welcoming in the technology and the disruption it brings along. Each of these nations has adopted a measure of regulation for civilian usage of drones, which is the subject of this paper; An overview of its impact on this burgeoning phenomenon is provided, by comparing the existing legal framework in these three countries. Further, an attempt has been made to draw out suggestions for the Governments by highlighting factors that will require more deliberation in the process of establishing a sound legal and regulatory environment for civilian drones. Finally, the possibility of regional co-operation in establishing uniform standards, practices, and legal framework is explored.","PeriodicalId":13484,"journal":{"name":"Indonesia Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67351850","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"In Search of Legal Foundation for Indonesian Family Firms","authors":"Y. Dewi","doi":"10.15742/ILREV.V6N2.228","DOIUrl":"https://doi.org/10.15742/ILREV.V6N2.228","url":null,"abstract":"One of the factors that affect Indonesia's economic growth is the existence of business firms. It cannot be ignored that most business firms in Indonesia is family owned firms, and which are considered to constitute as the backbone of the economic development. Family firms represent the most enduring business model in the world. The continuing success of family firms through the generations relies on ensuring the next generation. However, the issue of family firms is rarely discussed in particular from the perspective of corporate law. In fact, from legal perspectives, there is some issues deal with this type of firms, amongst other, the lack of an overall definition of the term “family business”. It is because family businesses and small medium enterprises (SMEs) are widely understood synonymously in spite of the fact that they exist in every size class. Other issue is the questions of its legal basis or legal framework in terms of its corporate governance. Many Indonesian business players lack the basic understanding of corporation's law. It is partly because these obligations are incompatible with the values and cultures in Indonesia where “kinship principle” is deeply rooted. This article aims to describe the characteristics and the legal frameworks for the family firms in Indonesia. It also recommends the government to take progressive measure by providing clear regulations on the family firms in Indonesia. This will reinforce family firms contribution in economic development of Indonesia in the future.","PeriodicalId":13484,"journal":{"name":"Indonesia Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67352296","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}