Transnational Business Law Journal最新文献

{"title":"THE ROLE OF TRANSPARENCY STANDARD: EFFECTIVITY IN PROVING THE BREACH OF FAIR AND EQUITABLE TREATMENT","authors":"C. Musu, Purnama Trisnamansyah","doi":"10.23920/transbuslj.v5i1.1575","DOIUrl":"https://doi.org/10.23920/transbuslj.v5i1.1575","url":null,"abstract":"The existence of agreements in foreign investment does not avoid disputes that occur in foreign investment agreements so there is a dispute resolution mechanism known as investor-state dispute settlement (ISDS). One of the claims often used as the basis for ISDS claims is the Fair and Equitable Treatment (FET) principle. In practice, investors often fail to prove violations due to lacking elements in their proof. The transparency standard is one of the elements that can support investors in proving the violations. In practice, transparency standards are rarely used to prove violations of the FET principle because there are still no clear parameters regarding implementing these standards and what kind of transparency standards can be said to violate the FET principle. The purpose of this study is to determine the role of transparency standards in their position as part of the FET principle and to determine the effectiveness of transparency standards in proving violations of FET in ISDS practices. The research method used in writing this thesis is to take a normative juridical approach by studying and examining secondary data in the form of international arbitration case jurisprudence, bilateral agreements, and international customs. The data is collected through literature studies obtained from primary and secondary data, which are then analyzed qualitatively. Based on the results of this study, it can be concluded that transparency standards have a protective role for investors and host states as an instrument to resolve legal uncertainty about existing decisions and policies and as a basis for analytical considerations to distinguish between legitimate regulatory actions and takeover actions that can indirectly violate the FET principle. Nonetheless, the Tribunal did not explicitly mention the transparency standard, but it was effectively used as a basis for arguments in evidence.","PeriodicalId":175924,"journal":{"name":"Transnational Business Law Journal","volume":"83 6","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140411338","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":"MAPPING EFFECTIVE MULTI REGIONAL TREATIES ON BLUE ECONOMY","authors":"Aurora Meliala","doi":"10.23920/transbuslj.v5i1.1609","DOIUrl":"https://doi.org/10.23920/transbuslj.v5i1.1609","url":null,"abstract":"Indonesia as an archipelago with more than 17,000 islands, has a unique geographical and great potential as a maritime country. Primarily, Indonesia's efforts to realize sustainable fisheries is by promoting and implementing the ASEAN Blue Economy Framework as one of the country's economic deliverables. Furthermore, among the various measures and policies that have been set by the Indonesian government, measurable fishing is a breakthrough in fostering the marine and fisheries sector and specifically regulating the blue economy. In the context of international trade, Indonesia has also made several efforts including the implementation of measured quotas and sustainable certification. Quotas and certification are two ways to resolve the issue of legality. Even so, illegal fishing is still a major challenge in the framework of sustainability. One of the main goals that Indonesia can set to ensure its involvement and leadership in ASEAN maritime connectivity is the construction of a national sustainable fisheries system, that is specifically related to the implementation strategy of sustainability commitment, that serves as a pioneer/pioneer of similar systems in the regional arena.","PeriodicalId":175924,"journal":{"name":"Transnational Business Law Journal","volume":"8 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140415398","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":"REVIEW OF REVERSIONARY RIGHTS IN THE SOLD-FLAT AGREEMENT OF SONG CREATION ASSOCIATED WITH LAW NUMBER 28 OF 2014 ON COPYRIGHT","authors":"Atika Nur Rahmah Utama, Miranda Risang Ayu Palar, Helitha Novianty Muchtar","doi":"10.23920/transbuslj.v5i1.1608","DOIUrl":"https://doi.org/10.23920/transbuslj.v5i1.1608","url":null,"abstract":"The copyright reversion provision or known as reversionary right contained in Article 18, 30, and 122 Law of the Republic Indonesia Number 28 of 2014 on Copyright is a legal substance that has been regulated by various countries in the world. This provision is intended to provide justice for creators whose rights are often violated in the implementation of copyright transfer agreements with a sold-flat mechanism. Indonesia Copyright Law is not specifically determined an implementing rules or guidelines to exercise this rights of reversions provisions. In its application, there have been rejections from record producer company such as in the case of Constitutional Court Decision Number 63/PUU-XIX/2021. This article is placed to review the implementation of reversionary rights provisions in Indonesia by analyzing national dan international provisions and court decisions with normative juridical methods and comparative law, as well as analytical and exploratory descriptive approaches. The implementation of reversionary rights provisions in Indonesia will raise challenges of weak legal understanding and disruption of rejection by record producers, which will weaken aspects of the implementation process. The provisions of the stages of the submission notifications process and documentation of reversionary rights in writing applied by the United States and the Netherlands can be something that Indonesia develops in strengthening the implementation process of reversionary rights provisions. To exercise and enforce their reversion rights, songwriters can renegotiate the agreement with the record producer, file for compensation with the commercial court, or also join the Collective Management Organization.","PeriodicalId":175924,"journal":{"name":"Transnational Business Law Journal","volume":"21 10","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140411324","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":"APPLICATION FOR TERMINATION OF EMPLOYMENT BY WORKERS / LABORERS BECAUSE THEY ARE LAID OFF WITHOUT WAGES MORE FROM MOON","authors":"Joni Hermanto, Rumainur Rum","doi":"10.23920/transbuslj.v5i1.1570","DOIUrl":"https://doi.org/10.23920/transbuslj.v5i1.1570","url":null,"abstract":"Government in November 2020 passed Law Number 11 of 2020 concerning Job Creation, then in February 2021 the Government stipulated implementing regulations from Law Number 11 of 2020, namely Government Regulation Number 35 of 2021 concerning Certain Time Work Agreements, Outsourcing, Working Time, and Rest Time, and Termination of Employment. On March 11, 2020, the world health organization World Health Organization (WHO) declared COVID-19 as a Global Pandemic, and on April 13, 2020, the Government of Indonesia issued a Presidential Decree of the Republic of Indonesia Number 12 of 2020 concerning the Determination of Non-Natural Disasters for the Spread of Corona Virus Disease 2019 (COVID-19) as National Disasters. People infected with the Covid-19 outbreak every day continue to increase, as well as the number of deaths due to the Covid-19 outbreak continues to grow. The Central Government and the Dareah Government issued policies to prevent and overcome the spread of the COVID-19 outbreak, namely by implementing Large-Scale Social Restrictions (PSBB) and the Implementation of Community Activity Restrictions (PPKM). With the existence of PSBB and PPKM by the Government, several sectors, especially the accommodation provision sector, tourism business, food and beverage business, real estate, and construction, have experienced a direct impact as a result of the Covid-19 pandemic and the existence of PSBB and PPKM. The tourism sector, especially hotels, has experienced a decrease in income due to the lack of guests staying, forcing employers to lay off their workers/workers without providing wages to reduce expenses and save company finances. This thesis research analyzes the impact arising from workers/workers being laid off without being given wages and legal considerations on the decision of the Industrial Relations Court at the Central Jakarta District Court with case number: 398 / Pdt. Sus PHI / 2021 / PN. JKT. PST. The purpose of this decision analysis is to find out the Request for Termination of Employment (PHK) by Workers / Workers because they were laid off for more than three months without wages based on Law Number 11 of 2020 concerning Job Creation.","PeriodicalId":175924,"journal":{"name":"Transnational Business Law Journal","volume":"17 3","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140411841","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 REFORM OF DISPUTE SETTLEMENT SYSTEM OF THE WORLD TRADE ORGANIZATION: CONTRIBUTION AND PERSPECTIVES FROM INDONESIA","authors":"Angga Handian Putra","doi":"10.23920/transbuslj.v5i1.1643","DOIUrl":"https://doi.org/10.23920/transbuslj.v5i1.1643","url":null,"abstract":"The WTO dispute settlement system is currently in crisis as the Appellate Body has been unable to perform its appellate review since December 11th, 2019. The US asserted that the AB has exceeded its authority. The crisis can be detrimental, especially for developing countries in international trade. The WTO Members have made efforts to reform the system. This paper uses qualitative and descriptive research to analyse the contribution of Indonesia to the system and its perspectives on the reform negotiations. \u0000Indonesia has contributed to the system and the Organization by clarifying interpretations of WTO agreements. In the reform negotiations, Indonesia has actively participated by joining a proposal to commence the selection of new AB members, supporting the result of “Walker Process” negotiations as a basis for future negotiation, and making some proposals such as formal communication to the WTO on a process in an informal process to implement the mandate of MC12 Outcome Document. As a negotiation strategy, Indonesia should continue its active participation by prioritizing accessible aspects that are interests of developing and LDC members, emphasizing the need to limit negotiation scope and urging the fulfilment of the 2024 deadline, safeguarding a legalistic system, and conducting a comprehensive analysis on two-tier litigation.","PeriodicalId":175924,"journal":{"name":"Transnational Business Law Journal","volume":"19 3","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140413082","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":"SETTLEMENT OF APARTMENT ARREARS ON A NON-LITIGATION BASIS BETWEEN MRS. MP AND PT. ELITE ON CONSUMER PROTECTION LAWS","authors":"I. Gunawan","doi":"10.23920/transbuslj.v2i2.1112","DOIUrl":"https://doi.org/10.23920/transbuslj.v2i2.1112","url":null,"abstract":"Consumer protection is a consequence of the force of law in meeting the interests of consumers. This requires a balance between the quality of service so that creditors/banks improve the quality of service in a fair (honest) manner to inform in detail about advertising and other services. to the ever-changing demands of this era of globalization. The legal force in information is a means of consumer protection in an agreement that is mutually binding between rights and obligations. Consumer protection law as the basis for the settlement of peace underhand on the heading \"Settlement of Apartment Arrears in Non-litigation Between Mrs. Mut Pen and PT. ELITEE Related to Consumer Protection Act\", is the title that the author gives in this Thesis. With the negotiations, the parties to the dispute where the case is a settlement are willing to continue the process of the rights and obligations of the parties to the dispute under mutually beneficial conditions, by waiving or relinquishing part of their rights in reaching an agreement on certain rights based on the principle of reciprocity to the word agree and there is no element of coercion from the other party.","PeriodicalId":175924,"journal":{"name":"Transnational Business Law Journal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114947131","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 ONLY CERTAINTY IS UNCERTAINTY: REMOTE HEARING IN INDONESIAN ARBITRATION","authors":"Amrul Akbar, Prita Amalia","doi":"10.23920/transbuslj.v2i2.792","DOIUrl":"https://doi.org/10.23920/transbuslj.v2i2.792","url":null,"abstract":"The remote hearing practice emerges as an alternative to in-person hearing as the established practice in arbitration. Yet, the practice of remote hearing does not always agreed upon by the parties in certain circumstances. The lack of certain laws governing its application raises a number of issues surrounding its application in arbitration. This paper examines legal theories and principles in domestic procedure law, international arbitration law, and their implementation in practice through comparative cases, utilizing a normative legal and case analysis method. The study employs a descriptive-analytical approach to describe the relevant legal rules, as well as legal theories and their application in the study object. Secondary data was gathered from primary, secondary, and tertiary sources of law for the study. The study's findings indicate that the laws governing remote hearings in Indonesia are uncertain in terms of confidentiality, the need for consent, mandatory preparation, control, and, very crucially, enforcement of the arbitration award. In contrast, it should address the issues generated by its extensive role in arbitration. The Indonesian government can address the aforementioned issue by enacting a particular procedural legislation that contains provisions for remote hearings in arbitration practice.","PeriodicalId":175924,"journal":{"name":"Transnational Business Law Journal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126002624","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":"UNFORESEEN DEVELOPMENT AS A DEVICE TO ASSESS SAFEGUARD INVESTIGATION","authors":"Achmad Wardana","doi":"10.23920/transbuslj.v2i2.1089","DOIUrl":"https://doi.org/10.23920/transbuslj.v2i2.1089","url":null,"abstract":"Unforeseen Development requirement is indeed essential for the World Trade Organization (WTO) member countries to make safeguard investigations in their own country, this study has analysed the affecting unforeseen development requirement in safeguard investigations. Additionally, this study examined how an unforeseen development affects safeguard investigations in Indonesia. The method of this study is qualitative research, and descriptive research is to analyze the data by using case analyses. The author presents major findings by subject on unforeseen development covers increased imports, the stages of an investigation, and determination of safeguard measures. The results further confirm that this study shows policy implications to elaborate the effect of unforeseen developments for safeguard investigations and after a measure taken. Also, this study shows policy recommendations as added value on this study to improving standard quality. For addition, this study provides a new theory that calls three fresh arguments (Zhou and Fang 2022). The reader would be get the fruitful discussions and recommendations on safeguard basis especially to the unforeseen developments requirements under safeguard investigations.","PeriodicalId":175924,"journal":{"name":"Transnational Business Law Journal","volume":"98 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124879966","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":"OUTLOOK OF ARBITRARY MEASURES OF FAIR AND EQUITABLE TREATMENT UNDER HEALTH URGENCY: THE WAIVER OF PHARMACEUTICAL PATENT","authors":"Clara Amanda Musu, Dona Regina Napitupulu, Marla Satika Qurratu’aini","doi":"10.23920/transbuslj.v2i1.795","DOIUrl":"https://doi.org/10.23920/transbuslj.v2i1.795","url":null,"abstract":"Patent has long been recognized as an important subject of investment particularly for Pharmaceutical Companies. In its development, patents have become one of the most prominent tools in international health investment for its economic benefit sourced from its exclusive right. Most of the Multilateral and Bilateral Investment Treaties recognized intellectual property rights as protected investments, which allows patent holders to benefit from the substantive and procedural safeguards granted by the applicable treaty for foreign investments. In the situation of health urgency, many patents rights are being waived by the government to make the innovation more affordable and accessible to citizens. In this situation, tension in the governance of pharmaceutical patents between patent holders and state authorities is an example of a broader recurring dynamic in international law: the tension between foreign investors' private interests and the host state's regulatory autonom. This research paper will discuss whether the patent waiver enacted by the government is considered as an arbitrary action under the Fair and Equitable Treatment standard as it causes harm to the foreign investor by analyzing several precedent jurisprudences through juridical normative methods","PeriodicalId":175924,"journal":{"name":"Transnational Business Law Journal","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125182588","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 EXHAUSTION OF COOLING-OFF PERIOD: A NON-MANDATORY PRE-CONDITION IN INVESTMENT ARBITRATION","authors":"Addyana Belaputri, Gregory Joshua, Jesslyn Febria, Muhammad Irsyad Marwandy","doi":"10.23920/transbuslj.v2i2.788","DOIUrl":"https://doi.org/10.23920/transbuslj.v2i2.788","url":null,"abstract":"Arbitration as an alternative institution to settle commercial disputes has been widely recognized by the business community and state governments. Dispute settlement through arbitration usually derives from the treaty or contract breach which is put under dispute settlement clause. In regard to investor-state dispute settlement, international arbitration plays an important role. However, there are several admissibility requirements that relate to the jurisdiction of the Tribunal, in particular, cooling-off period requirement. This article is placed for the nature and provision of cooling-off period requirement by analyzing several precedent jurisprudences through juridical normative methods. The cooling-off period in Investment Arbitration has been considered as jurisdictional requirement which also integrated with the procedural requirement to submit investment dispute to ISDS arbitration.","PeriodicalId":175924,"journal":{"name":"Transnational Business Law Journal","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126962216","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}