Journal of Private and Commercial Law最新文献

{"title":"Business Dispute Resolution: Insight from Indonesia and Saudi Arabia","authors":"Atty Genald Malvas Valones, Daniel Krisnugrahanto, Malik Al Farabi","doi":"10.15294/jpcl.v7i1.30295","DOIUrl":"https://doi.org/10.15294/jpcl.v7i1.30295","url":null,"abstract":"In legal disputes, the crucial aspect lies in the execution of a decision. A decision holds no value if it cannot be effectively enforced, even if it possesses permanent legal force. To settle civil cases, two prominent institutions are employed: the court and arbitration. In the context of international business agreements, parties turn to international arbitration as a means of resolving disputes, employing neutral third parties. This paper delves into the process of international arbitration, particularly focusing on its application within the business sector. Various arbitration clauses in international business agreements establish international arbitration, with the objective of impartially addressing disputes between parties involved. A notable institution that facilitates such resolution is the Saudi Center for Commercial Arbitration (SCCA) in Saudi Arabia. However, the effectiveness of arbitration rests on the implementation of arbitration awards, which is influenced by the type of arbitration undertaken, whether national or international. Hence, this paper aims to draw a comparative analysis between the Indonesian National Arbitration Board (BANI) and the Saudi Center for Commercial Arbitration (SCCA), examining the legal basis employed and the processes involved in resolving arbitration disputes. By understanding the contrasting practices of these arbitration institutions, stakeholders can gain insights into optimizing dispute resolution mechanisms. The study holds practical significance for businesses and individuals engaged in international trade, emphasizing the importance of selecting the appropriate arbitration institution to ensure enforceability and expeditious resolution of disputes. Ultimately, the findings of this research contribute to fostering a more efficient and reliable international arbitration framework.","PeriodicalId":32860,"journal":{"name":"Journal of Private and Commercial Law","volume":"304 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84866549","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 Comparison Between Indonesia and The Netherlands Regarding Commercial Dispute Arbitration","authors":"Christ Sella, Januari Nasya Ayu Taduri","doi":"10.15294/jpcl.v7i1.30314","DOIUrl":"https://doi.org/10.15294/jpcl.v7i1.30314","url":null,"abstract":"In the dynamic realm of business, entrepreneurs continually encounter a multitude of risks and challenges that have the potential to lead to disputes among various parties involved. To effectively navigate such situations, businesspeople often prefer to adopt alternative dispute resolution methods, such as arbitration, rather than opting for traditional litigation. This preference is primarily motivated by a desire to protect and maintain the company's valuable reputation and goodwill. In Indonesia, the practice of arbitration dates back to the colonial era and is currently governed by The Act Number 30 of 1999 concerning Arbitration and Alternative Dispute Resolution. In this paper, the author aims to conduct a comprehensive comparative analysis of arbitration mechanisms in Indonesia and the Netherlands. The main objective is to assess the progress of arbitration in Indonesia in comparison to other countries and explore innovative arbitration mechanisms that can be implemented to further enhance the effectiveness of dispute resolution. To achieve this goal, the research methodology employed for this legal analysis is normative legal research with a comparative approach. By utilizing this approach, the study seeks to gain a deeper understanding of the existing arbitration practices in both Indonesia and the Netherlands, identify strengths and weaknesses, and propose potential areas for improvement. Overall, this study endeavors to shed light on the advancements made in the field of arbitration in Indonesia while drawing insights from international practices. By exploring and adopting novel arbitration mechanisms, the hope is to contribute to the development and refinement of Indonesia's dispute resolution landscape for the benefit of businesses and stakeholders alike.","PeriodicalId":32860,"journal":{"name":"Journal of Private and Commercial Law","volume":"32 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82441799","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":"Dispute Resolution in Business Sector: Comparing Indonesia and Singapore Arbitration Model","authors":"Kelvin Leong Chun Fai, Prasasti Dyah Nugraheni","doi":"10.15294/jpcl.v7i1.30262","DOIUrl":"https://doi.org/10.15294/jpcl.v7i1.30262","url":null,"abstract":"Dispute resolution within the business sector can be accomplished through either national arbitration institutions or international arbitration institutions. International arbitration serves as a process to settle civil disputes using a neutral third party, particularly in the context of business-related conflicts arising between parties engaged in international business agreements. Such arbitration is often specified through arbitration clauses included in these international business agreements, which are mutually agreed upon by the involved parties. One example of an international arbitration institution that specializes in resolving civil disputes, particularly those within the business sector, is the Singapore International Arbitration Center (SIAC) located in Singapore. The implementation of arbitration awards depends on the type of arbitration being conducted, whether it is a national arbitration award or an international arbitration award. During the preparation of this paper, the author utilized a normative-juridical research method, which involves relying on legal library sources and secondary legal materials to address existing legal issues. This paper aims to compare the legal foundations and the arbitration dispute resolution processes employed by the Indonesian National Arbitration Board (BANI) and the Singapore International Arbitration Center (SIAC). The research findings reveal that the legal basis for arbitration dispute resolution utilized by the Indonesian National Arbitration Board (BANI) differs from that employed by the Singapore International Arbitration Center (SIAC). Nevertheless, the processes and procedures for resolving arbitration disputes conducted by both institutions demonstrate notable similarities.","PeriodicalId":32860,"journal":{"name":"Journal of Private and Commercial Law","volume":"9 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79566762","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":"Implementation of the Age Limitation for Marriage from the Perspective of Indonesian Family and Marriage Law","authors":"Wahyu Prabowo, I. Bhakti, Rr. Yunita Puspandari, I. Beatrice","doi":"10.15294/jpcl.v7i1.43973","DOIUrl":"https://doi.org/10.15294/jpcl.v7i1.43973","url":null,"abstract":"The fundamental purpose of marriage is to unite couples as a family within a household. However, societal perceptions of marriage have evolved, particularly among the younger generation, resulting in instances of premarital pregnancies and engaging in dating and sexual activities that may contradict their religious beliefs. This increase in promiscuity has led to a surge in requests for marriage dispensation in courts to bypass the marriage age limit set by Indonesian Law Number 16 of 2019 on Marriage. To address this issue, this research employs a qualitative method to analyze data. The study findings reveal the need to amend Article 7, paragraph (1) of Law Number 1 of 1974 to Article 7, paragraph (1) of Law Number 16 of 2019 on Marriage. This amendment proposes raising the marriage age limit to 19 years old for both men and women, with the aim of ensuring the overall well-being and promoting the possibility of leading a respectable life. However, the implementation of the marriage age limit has not been fully effective due to the existence of Supreme Court Regulation No. 5 of 2019, which outlines guidelines for Marriage Dispensation Application Trials. This regulation weakens the age limitation legally, as judges refer to it when considering granting requests for marriage dispensation. In light of these circumstances, it is crucial for law enforcers and all stakeholders to prioritize the prevention of child marriage during the review process for marriage dispensation. This approach seeks to address the root causes of increasing promiscuity and premarital pregnancies, fostering an environment that encourages responsible and mature decision-making regarding marriage. Therefore, this study also emphasized that to ensure the general welfare of individuals and combat the rise in promiscuity and child marriage, amending marriage laws should be complemented with a focused effort on preventing child marriage during the dispensation process.","PeriodicalId":32860,"journal":{"name":"Journal of Private and Commercial Law","volume":"100 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76966521","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":"Two Decades of Business Competition Law: How has Indonesian Competition Law Transformed?","authors":"Dennis Wye Keen Khon, Muhammad Iqbal Baiquni, Waspiah Waspiah","doi":"10.15294/jpcl.v7i1.44355","DOIUrl":"https://doi.org/10.15294/jpcl.v7i1.44355","url":null,"abstract":"This research focuses on the development of competition law in Indonesia, specifically examining the role and impact of Law No. 5 of 1999 concerning the Prohibition of Monopolistic Practices and Unfair Business Competition, also known as the Business Competition Law. The objective of this research is to provide an overview of the various changes in business competition law in Indonesia, particularly the establishment of the Business Competition Supervisory Commission (KPPU), responsible for enforcing the law against business competition violations committed by companies or individuals. Additionally, this article will compare Indonesian competition law with that of other countries, such as Australia and Singapore. The research adopts two main methods: a statute approach and a comparative approach. The statute approach involves analyzing three statutory regulations: Law No. 5 of 1999 (Indonesia), Australia Competition and Consumer Amendment Act 2013 (Australia), and Singapore Competition Act 2004 (Singapore). The findings of this study reveal two key weaknesses in Indonesia's Business Competition Law. First, there are deficiencies in both the material and formal aspects of determining prohibitions per se or employing the rule of reason theory. Secondly, there are concerns related to the definition of dominant market positions, necessitating a review of the Business Competition Law to align it with best practices. Additionally, there are issues regarding the neutrality of KPPU as a Quasi-Judicial institution, and the need to safeguard the rights of the reported parties during the judicial process at KPPU. Furthermore, a legal comparison with Australia and Singapore highlights that Indonesia's Business Competition Law lags behind in several areas, resulting in a legal vacuum concerning Mergers and Acquisitions Regulations, Horizontal and Vertical Agreements, Dispute Resolution, and Consumer Protection. In conclusion, this research emphasizes the significance of robust competition laws in promoting fair business competition, economic growth, and foreign investment. It sheds light on the weaknesses of Indonesia's current Business Competition Law and suggests potential areas for improvement based on a comparison with competition laws in Australia and Singapore. Addressing these issues would strengthen Indonesia's competitive landscape and foster a more conducive business environment.","PeriodicalId":32860,"journal":{"name":"Journal of Private and Commercial Law","volume":"52 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74156685","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":"Drug Patent Monopoly During Covid-19 Outbreaks: How the Government Regulates this?","authors":"Devica Rully Masrur, O. Constance","doi":"10.15294/jpcl.v7i1.44391","DOIUrl":"https://doi.org/10.15294/jpcl.v7i1.44391","url":null,"abstract":"Health is an inherent human right constitutionally guaranteed, and during the Global Covid-19 Pandemic, the Indonesian government faced a delicate balance between safeguarding public health and complying with its obligations as a member of the WTO under the TRIPS Agreement, which mandates patent protection for medicines, medical devices, and vaccines, crucially needed during the pandemic. International and national laws have addressed these challenges through the TRIPs Protector Article, providing options for member states to take specific measures, such as Parallel Imports, Bolar Provisions, Compulsory Licenses, and Government Use of Patents. These solutions demonstrate that even in emergency situations, the rights of inventors can still be upheld while ensuring access to essential medicines for the public. In the case of Indonesia, the government employed the Government Use of Patents policy through Presidential Regulations Number 77 of 2020, Number 100 of 2021, and Number 101 of 2021, pertaining to Remdesivir and Favipiravir medicines, respectively. This approach, though involving compulsory acquisition, is time-limited, non-exclusive, and provides fair compensation to patent holders, reflecting a balanced and just approach to addressing the critical public health needs during the pandemic.","PeriodicalId":32860,"journal":{"name":"Journal of Private and Commercial Law","volume":"21 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81266303","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":"Protection of Patent Holders’ Rights in Indonesia: Between Theories and Practices","authors":"U. Nnawulezi, Eva Diah Pitaloka, Indah Fitri Cahyani, Julian Naridha Putri","doi":"10.15294/jpcl.v7i1.38639","DOIUrl":"https://doi.org/10.15294/jpcl.v7i1.38639","url":null,"abstract":"Intellectual property constitutes a vital aspect of rights, with patents being a crucial element of intellectual property rights (IPRs). A patent grants an inventor the exclusive right, recognized by the state, to their technological invention for a specified duration, either for personal implementation or through agreements with others. Patents hold great strategic and economic significance for their owners, offering legal protection under national law. This protection serves to incentivize creators to advance quantity and quality, fostering prosperity and a healthy business environment within society. Indonesia, as an active participant in international trade, ratified the establishment of the WTO on November 2, 1994, encompassing the TRIPs agreement, which sets international standards for intellectual property rights. Presently, the safeguarding of patent rights in Indonesia is governed by Law No. 13 of 2016, encompassing both patents and simple patents. This legal framework underscores the government’s commitment to enforcing intellectual property rights protection. The study adopts a qualitative approach, aiming to explore and optimize the legal protection of patent holders in Indonesia.","PeriodicalId":32860,"journal":{"name":"Journal of Private and Commercial Law","volume":"10 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90676588","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":"Anti-Dumping Committee’s Strategy to Confront Dumping Practices: Indonesian Law and International Law Perspective","authors":"Rifda Ayu Akmaliya, Satria Unggul Wicaksana Prakasa, Sonny Zulhuda","doi":"10.15294/jpcl.v7i1.44491","DOIUrl":"https://doi.org/10.15294/jpcl.v7i1.44491","url":null,"abstract":"This study investigates the Indonesian Anti-Dumping Committee's role and legal efforts in addressing dumping practices within the context of Indonesia's membership in the World Trade Organization (WTO) and adherence to the General Agreement on Tariffs and Trade (GATT). Previous research has demonstrated the existence of dumping in imported polyester staple fiber products, leading to the committee's proposal of anti-dumping duties. The committee is responsible for receiving reports on alleged dumping and producing final reports. Despite these efforts, the study reveals an ongoing increase in dumping cases, causing significant social, psychological, and economic consequences for the country. The current institution dealing with dumping practices is considered inefficient and ineffective. To gain a comprehensive understanding of the issue, the research employs a sociolegal research method with a disciplinary approach, acknowledging that relying solely on normative law is insufficient to address dumping practices. In conclusion, this study aims to shed light on the Indonesian Anti-Dumping Committee's role and its legal framework in countering dumping practices. The rising dumping cases and the perceived inefficiency of the existing institution are worrisome. By utilizing a sociolegal research method with a disciplinary approach, the study strives to offer a holistic understanding and potentially contribute to more effective solutions in combating dumping practices.","PeriodicalId":32860,"journal":{"name":"Journal of Private and Commercial Law","volume":"AES-9 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84511118","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":"Intellectual Property as an Object of Banks Collateral in Startup Development in Indonesia (Comparation Study of Singapore and Malaysia)","authors":"Giovanni Marcello, Rafi Rifal Mastiyanto","doi":"10.15294/jpcl.v7i1.44338","DOIUrl":"https://doi.org/10.15294/jpcl.v7i1.44338","url":null,"abstract":"Startups heavily rely on capital for their business activities, often acquired through borrowing. Securing capital loans with guarantees is vital to ensure repayment. Intellectual Property Rights (IPR) offer valuable intangible assets that can serve as collateral. However, Indonesia's current regulations on using IPR as collateral, particularly in debt financing, are insufficient. In contrast, Singapore and Malaysia successfully implemented the Intellectual Property Financing Scheme (IPFS). This paper examines a regulatory model for implementing IPFS in Indonesia. It explores how to effectively utilize intellectual property schemes as debt guarantees in Indonesia, Singapore, and Malaysia. The author uses the normative juridical research method for this study. The analysis concludes that IPFS is a viable solution for Indonesia if two key indicators are met. First, a due diligence scheme for intellectual property assets must be developed and optimized to ensure reliable and valuable collateral. Second, implementing a nationally integrated Government Program to optimize startup capital will support the successful adoption of IPFS in Indonesia. By establishing a robust regulatory model and embracing IPFS, Indonesia can harness the potential of its intellectual property assets to boost startup capital and encourage business growth. This will improve financing accessibility for startups and foster an environment conducive to innovation and entrepreneurship in the country.","PeriodicalId":32860,"journal":{"name":"Journal of Private and Commercial Law","volume":"78 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74089305","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":"Regulation Concept of Optimizing Biodiversity Function due to Climate Change through Biological Insurance","authors":"Efridani Lubis, Andrean Al Iksan","doi":"10.15294/jpcl.v7i1.44132","DOIUrl":"https://doi.org/10.15294/jpcl.v7i1.44132","url":null,"abstract":"Biological diversity, also known as genetic resources, plays a crucial role in sustaining human existence. Despite its significance, the destruction of these resources continues to persist over time, partly due to the impact of climate change. Numerous mechanisms have been implemented at both international and national levels to address this issue. However, the IUCN Red List indicates that the apprehensive situation persists, with 28% (35,765 species) of known species categorized as threatened with extinction as of 2020. In light of this challenge, an alternative worth considering is the concept of biological insurance, wherein biological or genetic resources become objects of insurance in general. Implementing this approach would require careful adjustments and, more importantly, scientific argumentation to support the idea both legally and economically. By employing normative legal research alongside statute and conceptual approaches, it has become evident that the current environmental insurance available in the market does not adequately protect the uniqueness of biological diversity. To strengthen the protection of biological diversity, it is essential to incorporate the sustainable use of natural resources for the prosperity of people while ensuring their sustainability indefinitely. Developing a comprehensive environmental insurance system would involve proposing a specific set of terms and conditions for biological insurance tailored to its unique characteristics. This approach seeks to safeguard and promote the conservation of biological or genetic diversity effectively.","PeriodicalId":32860,"journal":{"name":"Journal of Private and Commercial Law","volume":"4 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88889403","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}