I INTRODUCTION TO THE DISPUTE RESOLUTION FRAMEWORK
i Structure of law
The Republic of Indonesia inherited most of its legal system from the Dutch colonies. Indonesia is a civil law country and is characterised by codified legal provisions, and that written laws and regulations are the primary sources of laws.
The formulation of laws in Indonesia is carried out in accordance with Law No. 12 of 2011 on Formulation of Laws and Regulations as lastly amended by Law No. 15 of 2019. This Law stipulates the type and hierarchy of Indonesian laws and regulations, as follows:
- the 1945 Constitution;
- the Decree of the People's Consultative Assembly;
- law, or government regulation in lieu of law;
- government regulation;
- presidential regulation;
- provincial regulation; and
- regency or municipality regulation.
The foregoing hierarchy must be understood in conjunction with the principle of lex superior derogat legi inferiori (a law higher in the hierarchy repeals the lower one). The purpose of this principle is to ensure conformity with all of the laws and regulations listed in the hierarchy.
Although Indonesia does not acknowledge the binding force of precedents, former precedents that have frequently been referred to in adjudicating similar cases are considered to have a 'persuasive power' among the judges. If the judges find such a precedent to be relevant to the case, they will refer to it in the final ruling of the case, and thus the judges have the choice of whether to follow the precedent or not.
Another aspect of precedents in Indonesia is they tend to set a trend in understanding laws and regulations. In some cases, precedents may provide a fully different interpretation of laws and regulations – compared to the one provided by the relevant laws and regulations – on the grounds of equity or public policy. This often provokes concerns on the degree of legal certainty in Indonesia. However, some precedents may also be worthy of appreciation owing to their groundbreaking legal importance.
In addition, customary laws and shariah law also influence the Indonesian legal system. The above laws are applicable with the following limitation:
- customary laws only prevail to the extent that they do not contravene prevailing written laws and regulations; and
- shariah law only prevails for:
- civil matters stipulated under the prevailing laws and regulations (e.g., marriage and inheritance for Muslims); and
- regions stipulated under the prevailing laws and regulations (i.e., the province of Nanggroe Aceh Darussalam).
ii Structure of courts
The judiciary of Indonesia comprises the Constitutional Court and the Supreme Court. The Constitutional Court holds the authority to conduct a constitutional review of laws, which may result in revocation of certain provisions or the whole law if it is found to contravene the 1945 Constitution. As for regulations having hierarchy below the laws, the Supreme Court has the authority to review whether a regulation contradicts certain laws that again may result in certain provisions or the whole regulation being annulled by the Supreme Court.
Aside from the above, the Supreme Court serves as the highest court of appeal for the following judicial bodies:
- general courts whose jurisdiction encompasses civil and criminal cases;
- state administrative courts that deal with state administrative disputes;
- religious courts that have jurisdiction over civil disputes between Muslims, for example, marriage and inheritance law, and economic shariah law; and
- military courts whose jurisdiction covers military criminal cases and military administrative cases.
Any party conducting a dispute through these Indonesian courts (unless stipulated otherwise under certain laws) should do so in the following order:
- district courts (first instance);
- high courts (appeal); then
- the Supreme Court (cassation).
Judgments rendered by district courts may be appealed to the relevant high courts, whether on the ground of legal issues or factual issues.2 The disputing parties may also file a petition for cassation against high court judgments; however, the grounds for such petition for cassation are limited to issues pertaining to the application of laws.
Save for cassation judgments, all district court judgments and high court judgments shall not be deemed as final and binding unless all available legal recourse has been exhausted. However, under the procedural laws, even a final and binding decision may also be appealed through an extraordinary legal recourse (a case review) at the Supreme Court. In this regard, the grounds for filing a case review are limitative and must be submitted within a specific time period, in accordance with the prevailing laws and regulations.
iii Framework of arbitration and alternative dispute resolution
Alternative dispute resolution (ADR) in Indonesia is mainly regulated through the Arbitration Law.3 The Arbitration Law defines ADR as an institution for the resolution of disputes or differences of opinion through procedures agreed by the parties, namely resolutions outside the courts by:
- conciliation; or
- expert assessment.
The Arbitration Law does not provide detailed rules and procedures of conducting ADR. The disputing parties are at liberty to choose ADR rules and procedures.
Although the same principle applies to virtually every ADR, rules and procedures of court-annexed mediation are strictly regulated under the Supreme Court Regulation.4
In Indonesia, the Arbitration Law also serves as lex arbitri. As such, all arbitration proceedings conducted in Indonesia must not contradict the provisions of the Arbitration Law.
Even though Indonesia has ratified the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, international arbitral awards5 are enforced in accordance with the provisions of the Arbitration Law.6
Indonesia has also become a signatory to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) since 1968. However, Indonesia excludes disputes arising from state administrative decisions issued by regencies from the types of dispute that may be settled by ICSID.7
II THE YEAR IN REVIEW
i E-litigation: a new development regarding Indonesia's e-court system
In 2019, the Supreme Court issued a new regulation pertaining to Indonesia's e-court system, namely Supreme Court Regulation No. 1 of 2019 on Administration of Case and Legal Proceedings in Court via Electronic Means (SC Regulation No. 1/2019); along with its implementing regulation, Supreme Court Decree No. 129/KMA/SK/VIII/2019 of 2019 on Technicalities Guidance of Administration of Case and Legal Proceedings in Court via Electronic Means (SC Decree No. 129/2019). These new regulations have repealed the previous regulations on a similar matter (i.e., Supreme Court Regulation No. 3 of 2018 on Case Administration in Court via Electronic Means (SC Regulation No. 3/2018) and Supreme Court Decree No. 122/KMA/SK/VII/2018 of 2018 on Guidelines for Registered User of Court Information System (SC Decree No. 122/2018)) and introduced the new concept of electronic proceedings (e-litigation).
Under the concept of e-litigation, the implementation of the e-court system has been broadened. In addition to electronic mechanisms for filing claims, summons, payment of legal cost, and obtaining judgments and stipulations, e-litigation has made it possible for the parties to carry out other substantial legal proceedings via electronic means, such as document exchanges (e.g., the defendant's response; the plaintiff's counterplea; the defendant's rejoinder; the parties' statement of conclusion)8 and the evidentiary process.9,10 Therefore, e-litigation has allowed the disputing parties to carry out most of the legal proceedings via electronic means without the need for conducting conventional hearings (unless it is deemed necessary).
Another notable update that has been made (under SC Regulation No. 1/2019) is that the disputing parties are allowed to file appeals, cassations and civil reviews through the e-court system.
Despite the foregoing, it is worth noting that e-litigation (including filing of appeals, cassations and civil reviews) may only be implemented upon the agreement of the disputing parties. This agreement is to be obtained by the panel of judges following the failure of the disputing parties to engage in a court-annexed mediation process.11
The Indonesian Supreme Court's effort to implement e-litigation should be appreciated as this may make court proceedings much simpler – insofar as it is agreed to by the disputing parties. Nevertheless, it is important for the Supreme Court to be aware that e-litigation might be prone to cybersecurity issues in relation to the collection and storage of case-related documents.12 Further, it is important for the Supreme Court to maintain and continue the improvement of this system, in order to optimise this system.
ii Urgency to improve the requirements of the suspension of debt payment obligation (PKPU) under Indonesian laws
Law No. 37 of 2004 on Bankruptcy and Suspension of Debt Payment Obligation (the Indonesian Bankruptcy Law) has been known for its lenient standard on the requirements for creditors to file a PKPU petition,13 as it only requires creditors to foresee that a debtor will not be able to repay a due and payable debt (Article 222 Paragraph (3) of the Indonesian Bankruptcy Law).
In this regard, there are no other requirements to be fulfilled, such as a minimum amount of debt percentage or an insolvency test. That being said, a creditor may file a PKPU petition despite the fact that: (1) the amount of debt to be paid to the creditor is minimal compared to the entire debt of the debtor; and (2) the debtor is not insolvent (i.e., financially healthy) and still capable of settling the outstanding debt to the concerned creditor.
In practice, the above leniency may create a condition where the majority creditors may feel aggrieved for certain reasons, among others, for example if they prefer to have the debt restructured outside the court.14 This kind of issue has recently occurred in the PKPU case of Duniatex Group (the Duniatex case),15 whereby six entities of Duniatex Group16 had been declared to be under PKPU by Semarang Commercial Court based on a petition made by one of its creditors, PT Shine Golden Bridge (PT SGB). The court judgment was rather surprising because prior to the filing of the PKPU petition by PT SGB, there were seven banks who had agreed to restructure Duniatex Group's debt (e.g., PT Bank Rakyat Indonesia Tbk, PT Bank Mega Tbk, PT Bank BNI Syariah) outside the PKPU mechanism.17 The accumulation of these seven banks' debts had represented at least 21.29 per cent of the entire debt; while on the other hand, PT SGB's debt only constituted 0.009 per cent of the entire debt.18
The above case is only one of hundreds of PKPU cases in Indonesia, which signifies the urgency to improve the Indonesian Bankruptcy Law, especially on the PKPU requirements. The main purpose of such improvement is to prevent any abuse of the PKPU process by certain parties to gain unfair benefits (e.g., hampering an ongoing restructuring process outside the court or as means for the debtor to simply circumvent its payment obligation to large creditors). If the Indonesian lawmakers do not see the urgency, then the current condition may become one of obstructing factors for Indonesia to attract more investment in the future.
III COURT PROCEDURE
i Overview of court procedure
The official language to be used in the court proceedings is Indonesian. A civil court case is commenced by filing a lawsuit that is addressed to the chairman of the relevant district court – in general, the district court whose jurisdiction encompasses the defendant's domicile. The lawsuit must comprise factual grounds and legal bases, and prayer for relief (where the plaintiff describes the remedies that they seek from the court).
After the filing of lawsuit, the chairman of the district court appoints the examining panel of judges. The panel of judges determines the first hearing date and summons the defendant to appear before the court.
In the first hearing, the panel of judges verifies the parties' credentials and orders the parties to enter into a court-annexed mediation process. If the mediation process fails, the court will proceed with the pronouncement of the lawsuit and allow the defendant to produce a statement of defence consisting of a demurrer and response to the case merits. The demurrer section may contain a challenge to the court's competence, the formality of the lawsuit, or both.
At the same time, the laws also provide the defendant with the right to file a counterclaim against the plaintiff.
Afterwards, the plaintiff may file a counter plea against the defendant's statement of defence and a statement of defence against the defendant's counterclaim (if any). Subsequently, the defendant is given the right to submit a rejoinder against the plaintiff's counter plea and a counter plea against the plaintiff's statement of defence in the counterclaim (if any). For final submissions, the court gives the opportunity for the plaintiff to lodge a rejoinder against the defendant's counter plea in a counterclaim.
Before proceeding to the evidentiary process, the court shall render an interlocutory judgment over the court competence demurrer. If the court grants the court competence demurrer, then the court shall declare the lawsuit to be inadmissible. Otherwise, the court shall proceed with the evidentiary hearing.
In the evidentiary hearing, the judges will provide the widest opportunity for the parties to submit any and all evidence that the parties deem to be relevant and in support of their argument.
Subsequent to the evidentiary process, the court shall provide the opportunity for the parties to submit a written statement of conclusion. After receiving the statement of conclusion, the panel of judges will adjourn the hearing in order for the judges to prepare the judgment, usually within two to four weeks.
The laws provide the litigants with the right to file an appeal to the district court. If the litigants are not satisfied with the judgment of the appeal court, the litigants may also file a cassation petition to the Supreme Court.
ii Time frames
The Supreme Court has been encouraging the district courts to conclude their proceedings within five months; and the high courts to conclude appeal proceedings within three months.19 In practice, however, there have been cases where the district court proceedings take around six to 12 months.
For cassation and case review proceedings, the Supreme Court has determined that such proceedings shall be concluded within 250 days of when the case dossiers are received by the Supreme Court.20 Nonetheless, in practice, owing to its load of cases, it is very rare for the Supreme Court to finish case examination within that period.
iii Class actions
Class actions are permissible only if the claim satisfies the following requirements:
- there are so many group members that it would be ineffective and inefficient if the lawsuit was separately filed or jointly filed;
- there is a similarity of facts or events, legal bases, and types of prayer for relief between the representative of the group and its group members; and
- the group representative has the honesty and determination to protect the interest of its group members.
The above requirements will first be assessed by the panel of judges in order to determine whether or not the class action may proceed. Subject to fulfilment of these requirements, the plaintiff will be required to provide a proposal for the notification to the group members. The remaining procedure shall follow the prevailing civil procedural laws.
iv Representation in proceedings
In general, it is the right of the litigants to be represented by lawyers.
All representation, except for the representative in class action proceedings, must be based on power of attorney. If power of attorney is executed outside the territory of Indonesia, then it must be consularised at the embassy of Indonesia and notarised in the country where the power of attorney is executed.
v Service out of the jurisdiction and assistance to foreign courts
Indonesia is not a member of any convention pertaining to judicial assistance, and, to date, Indonesia only has mutual judicial assistance with the Kingdom of Thailand. As such, in general, when Indonesian courts are in need of judicial assistance from foreign court or the other way around, the procedure will be done through a diplomatic channel.
Up to now, there are no laws and regulations regulating the procedure of service out of the jurisdiction. The same applies to matters concerning assistance to foreign courts.
vi Recognition and enforcement of foreign court judgments
A foreign court judgment cannot be enforced in Indonesia. If a party would like to enforce its right based on a foreign court judgment then it must file a new lawsuit at a relevant Indonesian district court (relitigate the case). During the court proceedings, the plaintiff may submit the foreign court judgment to the court as documentary evidence.
vii Access to court files
Indonesian courts have adopted a case tracking system that allows the public to access information regarding ongoing or concluded cases at the relevant court. This includes:
- date of case registration;
- classification of case;
- names of the parties;
- prayer for relief;
- hearing schedule; and
- the administrative cost of the case and its disbursement report by the court.
If the case has been concluded by the first instance court, the case tracking system may publish the names of judges and the substitute registrar of the case.
Members of the public may obtain an unofficial copy of a court judgment or court decree, but court submission or pleading documents or evidence are unavailable for the public in principle.
viii Litigation funding
Any practice of litigation funding is not recognised by Indonesian laws and regulations. Some law practitioners argue that litigation funding may raise issues of ethics and may violate decency or any other source of unwritten laws in Indonesia.
IV LEGAL PRACTICE
i Conflicts of interest and Chinese walls
The Advocates Law21 does not set forth a rule on conflict of interest. However, the Indonesian Advocate Code of Ethics22 provides a basic rule that an advocate (lawyer) handling the joint interest of two parties is required to fully resign from handling such interest, if in the future there is a conflict of interest between the relevant parties.
There is no specific provision for explaining this basic rule. Some law practitioners argue that the above rule may be broadly interpreted, and it may depend on the advocate.
Indonesian legal practice does not recognise the concept of Chinese walls, and as such no set of rules provide any definition of Chinese walls.
ii Money laundering, proceeds of crime and funds related to terrorism
For some matters outside litigation or arbitration proceedings, Indonesian advocates are obliged to:
- provide a report on suspicious financial transactions23 to the Indonesian Financial Transaction Reports and Analysis Center (PPATK); and
- apply the principle of 'know your service user'.24
The matters outside litigation or arbitration proceedings are related to:
- the purchase and sale of a property;
- the management of money, stocks or other financial service products;
- the management of a checking account, savings account, deposit account or stocks account;
- the operation and the management of a company; and
- the establishment, purchase and sale of legal entities.
Advocates are obliged to apply the principle of know your service user at the following times:
- there is a business or commercial relation with its service user;
- there is a financial transaction in Indonesian rupiahs or foreign currency involving a minimal amount of or equal to 100 million rupiahs;
- there is a suspicious financial transaction relating to money laundering and terrorism funding; or
- the advocate has doubts regarding the truth of the information from its service user.
iii Data protection
The legal framework of personal data protection comprises various laws and regulations.25 The following is considered as protected personal data under Indonesian laws and regulations:
- Based on the Public Information Disclosure Law:
- the history and condition of a family member;
- the history, condition, treatment and medication of physical and psychological health;
- finances, assets, income and condition of bank account;
- the result of evaluation in connection with the capability and intellectuality recommendation; and
- records concerning the individual with regard to formal education and non-formal education.
- Pursuant to population administration laws and regulations:
- records on physical or mental disability;
- iris recognition;
- other data elements regarding a person that are considered unacceptable;
- citizen identification number;
- place and date of birth;
- parent names;
- home address;
- records on marriage, as well as the date and status of marriage;
- records on divorce as well as the date of divorce;
- blood type;
- records concerning children born outside of marriage;
- records on adoption;
- type of work;
- last education; and
- the ownership of deed of birth or marriage.
Government and private institutions are prohibited from making personal data public information. Specifically for personal data in electronic systems, the Indonesian Minister of Communication and Informatics has issued a regulation that specifies that the protection of personal data includes protection of the acquisition, collection, processing, analysis, storage, appearance, announcement, transmission, dissemination and destruction of personal data.
V DOCUMENTS AND THE PROTECTION OF PRIVILEGE
The Advocates Law provides that advocates have the right on confidentiality of relationship with their clients, including protection of materials and documents against seizure or examination measures, and protection against recording or tapping of electronic communications.
The Indonesian Advocates Code of Ethics further provides that letters sent by advocates to other advocates in a case may be presented before the judges unless they are made 'without prejudice'. Also, advocate-to-advocate correspondence or contents of conversations in the failed attempt of amicable settlement shall not be presented as evidence before the court.
The Advocates Law and Indonesian Advocates Code of Ethics are silent on whether its provisions may also be applied to in-house lawyers.
ii Production of documents in civil proceedings
In principle, a party asserting or rebutting a right or entitlement is obliged to prove it based on the available evidence. The law does not require the disputing parties to produce all documents or evidence relevant to the case; as such, it fully depends on the parties' strategy and possession of documents.
Indonesian civil procedure laws consider written evidence as primary evidence. To be accepted by the court, the parties must be able to present the original written evidence before the court because, under Indonesian civil procedure law, the power of written evidence lies within its originals.
Indonesian civil procedure law provides that a party may request the judges to order the opponent to submit letters or documents belonging to the disputing parties concerning matters being disputed if such letters or documents are possessed by the opponent.26 Nonetheless, in practice, the foregoing provision has rarely, if ever, been invoked by Indonesian litigants. As such, in practice, the disputing parties rely on any evidence in their possession to prove their right or to rebut the opponent's arguments.
VI ALTERNATIVES TO LITIGATION
In Indonesia, Arbitration is commonly used to resolve commercial disputes involving particular expertise (e.g., construction, capital market, insurance). Meanwhile, the major arbitral institution commonly used in Indonesia is the Indonesian National Board of Arbitration.
The Arbitration Law categorises arbitration awards according to the place where the arbitration award is rendered. If the arbitration award is rendered outside the jurisdiction of Indonesia, it shall be deemed as an international arbitration award. If it is the other way around, the arbitration award shall be deemed a domestic arbitration award.
The Arbitration Law does not recognise the right of appeal against arbitration awards. However, the district court may refuse to enforce the domestic arbitration award for the following reasons:
- the arbitration agreement is absent;
- the dispute is not allowed to be resolved through arbitration; or
- the award violates morality and public policy.
Aside from the above, the newly issued Decree of the Directorate General of the General Judiciary No. 40/DJU/SK/HM.02.3./1/2019 of 2019 on the District Court Execution Guideline has now required the court to verify whether the international arbitration award has been registered within 30 days as of the pronouncement of the award. Unfortunately, the Decree did not come up with any explanation regarding the rationale behind this provision.
The grounds for refusal of recognition and enforcement of international arbitration awards under the Arbitration Law are more limited, compared to the one provided by the New York Convention.
Moreover, in Indonesia, the disputing parties are entitled to request annulment of the arbitration award on the following grounds:
- letters or documents submitted in the hearing, after the award is rendered, are acknowledged to be false or declared to be forgeries;
- discovery of documents, after the award has been rendered, which are decisive in nature and were deliberately concealed by the opposing party; and
- the award is rendered as a result of fraud committed by one of the parties in the proceedings.
The Arbitration Law does not clearly state that the grounds for annulment are applicable for domestic and international arbitration awards. However, most decisions have declared that Indonesian courts have no jurisdiction to adjudicate matters regarding annulment of international arbitration awards.
There are two types of mediation recognised under Indonesian law; namely, court-annexed mediation and voluntary mediation (non-court mediation). While court-annexed mediation has been used since the Dutch colonial era, non-court mediation was introduced in 1999 through the promulgation of the Arbitration Law.
With regard to court-annexed mediation, the Supreme Court has also issued a regulation pertaining to Procedure of Court-Annexed Mediation.27
There are two major differences between court-annexed mediation and voluntary mediation, namely:
- court-annexed mediation is mandatory in nature, thus it must be conducted at the preliminary stage of civil court proceedings. On the other hand, voluntary mediation will only be conducted upon the disputing parties' agreement; and
- rules and procedures of court-annexed mediation shall comply with the prevailing laws and regulations, while rules and procedures of voluntary mediation fully depend on the agreement between the disputing parties.
Although mediation has long been recognised by law, it has yet to be as popular as arbitration in terms of alternatives to litigation. This might be for several reasons, including:
- the disputing parties are pessimistic that mediation will result in a win-win solution, as their first attempt to negotiate has already been failed;
- the settlement agreement remains vulnerable to any violation by the disputing parties, which later ends up in court or arbitration proceedings; and
- court-annexed mediation still contains shortcomings, such as a relatively short time period for conducting mediation without considering the degree of complexity of the cases (i.e., only 30 business days with a chance to extend the period by up to another 30 business days with the parties' consent).
VII OUTLOOK AND CONCLUSIONS
In 2019, the Supreme Court has made a concrete effort to modernise the Indonesian civil procedural laws, which is apparent from the implementation of e-litigation under SC Regulation No. 1/2019 and SC Decree No. 129/2019. While there might be some practical issues in its implementation, the newly introduced system is, however, expected to help the court in managing the cases more effectively, while also benefiting litigants in terms of time and cost saved in legal proceedings.
Nevertheless, aside from the above improvement, there is still a big challenge to be faced by the Indonesian government in terms of dealing with more 'legally substantial' matter in order for Indonesia to attract more investments in the future. This includes, among others, the long-awaited reform of some old laws that derive from Dutch colonial laws as well as the synchronisation of overlapping regulations, which has been a major problem for foreign investors over the years.
1 Ahmad Irfan Arifin is a litigation partner at Lubis, Santosa & Maramis. The author wishes to thank the firm associates Kristian Takasdo Simorangkir and Edgar Christian Martua Raja for their great help in the preparation of this chapter.
2 In criminal cases, judgments stating that the defendant is acquitted or discharged from all legal charges may not be appealed to the high court. The available legal recourse for such judgment is by filing for cassation to the Supreme Court. Nevertheless, filing for cassation against a judgment that acquits a criminal defendant was once prohibited by Article 244 of Indonesian Code of Criminal Procedure until the provision was amended under the ruling of Constitutional Court Judgment No. 114/PUU-X/2012 dated 28 March 2013.
3 Law No. 30 of 1999 on Arbitration and ADR.
4 Supreme Court Regulation No. 1 of 2016 on Procedure of Court-Annexed Mediation.
5 Under Article 1 Paragraph 9 of the Arbitration Law, international arbitration awards are awards rendered by an arbitration institution or ad hoc arbitration outside the legal jurisdiction of the Republic of Indonesia, or such awards are deemed as international arbitration awards under Indonesian laws and regulations.
6 Articles 65–69 of the Arbitration Law.
7 President Decree No. 31 of 2012 on Disputes Whose Settlement Shall Not Be Submitted to the Jurisdiction of International Centre for Settlement of Investment Disputes.
8 SC Regulation No. 3/2018 and SC Decree No. 122/2018 did not provide further explanations on the technicalities of document exchanges. However, SC Regulation No. 1/2019 and SC Decree No. 129/2019 have included further explanations pertaining to this matter. For instance, with regard to the submissions schedule, SC Regulation No. 1/2019 and SC Decree No. 129/2019 give the authority to the panel of judges to make the submissions schedule that must be complied by the disputing parties.
9 Based on Section E.5 of the Appendix of SC Decree No. 129/2019:
a the disputing parties shall upload their written evidence in the form of duty-stamped electronic documents to the court information system. Nevertheless, the disputing parties are still required to bring the original duty-stamped documents to be verified by the panel of judges in conventional hearings;
b as for the examination of witnesses and experts, the disputing parties may conduct the hearing remotely by means of audiovisual media communication.
10 Articles 1 Paragraph 6 and 4 of SC Regulation No. 1/2019 in conjunction with Section E of the Appendix of SC Decree No. 129/2019.
11 Article 20 of SC Regulation No. 1/2019.
13 See pages 27–48; pages 143–148 of Academic Script of Draft Law on Amendment to Law No. 37 of 2004 on Bankruptcy and Suspension of Debt Payment Obligation (issued by National Law Development Agency, Ministry of Law and Human Rights in 2018).
14 The decision to perform debt restructuring outside the court is made for many reasons. However, most of them are because the creditor wants to make its own debt restructuring structure without any involvement of other creditors, which is required under Article 281 Paragraph (1) of the Indonesian Bankruptcy Law.
15 Registered under Case No. 22/Pdt.Sus-PKPU/2019/PN Niaga Smg of 11 September 2019.
16 The six entities of Duniatex Group are: (1) PT Delta Merlin Dunia Textile; (2) PT Delta Dunia Tekstil; (3) PT Delta Dunia Sandang Tekstil; (4) PT Delta Merlin Sandang Tekstil; (5) PT Dunia Setia Sandang Asli Tekstil; and (6) PT Perusahaan Dagang dan Perindustrian Damai.
18 The entire debt of Duniatex Group is in the region of 18.79 trillion rupees, while the outstanding debt of PT SGB is only in the region of 1.69 billion rupees (https://nasional.kontan.co.id/news/pkpu-duniatex-dikabulkan). On the other hand, the seven-bank debt is amounting to 4 trillion rupees (https://keuangan.kontan.co.id/news/sebanyak-7-bank-dikabarkan-sepakati-skema-restrukturisasi-dengan-duniatex?page=1).
19 Circular Letter No. 2 of 2014 on Resolution of Case in The First Instance Court and Appeal at 4 (Four) Types of Judiciary dated 13 March 2014.
20 Decree of the Chairman of Supreme Court Number 214/KMA/SK/XII/2014 dated 31 December 2014.
21 Law No. 18 of 2003 on Advocates.
22 Indonesian Advocate Code of Ethics, ratified on 23 May 2002.
23 Article 1 Paragraph 8 of Government Regulation No. 43 of 2015 on Reporting Party in the Prevention and Eradication of Money Laundering provides that suspicious financial transaction is (1) a financial transaction that deviates from the profile, characteristic or behaviour of transaction pattern of the service user; (2) a financial transaction conducted by the service user that is reasonably considered as having the purpose of avoiding the reporting obligation of the service user under the laws and regulations pertaining to the prevention and eradication of money laundering; (3) a financial transaction that is conducted by or being cancelled to be carried out by using assets that allegedly originated from proceeds of crime; and (4) a financial transaction that is requested by the PPATK to be reported by the advocate because the transaction involves assets that allegedly originated from proceeds of crime.
24 Article 1 Paragraph 3 of PPATK Regulation No. 10 of 2017 on the Application of the Principle of Know Your Service User for Advocates provides that the principle of know your service user is the principle applied by advocates to know the profile and transaction of its service user by implementing certain obligations under the regulation.
25 Law No. 23 of 2006 on Population Administration, as amended; Law No. 14 of 2008 on Public Information Disclosure; and Government Regulation No. 37 of 2007 on Implementation of Law No. 23 of 2006.
26 Article 1886 of the Indonesian Civil Code; Article 300 of Civil Procedure Law for Regions Outside Java and Madura.
27 Supreme Court Regulation No. 1 of 2016 on Procedure of Court-Annexed Mediation.