Analisis normatif terhadap perjanjian nominee (studi kasus sengketa churchill mining) = Normative analysis towards the nominee agreement (churchill mining dispute case study)

Rachmadani, Aulia (2018) Analisis normatif terhadap perjanjian nominee (studi kasus sengketa churchill mining) = Normative analysis towards the nominee agreement (churchill mining dispute case study). Bachelor thesis, Universitas Pelita Harapan.

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Abstract

These research aims to find out and analyst how the principle freedom of contract between parties if correlate to prohibition of creating agreement onward nominee and how the law implementation and the Undang – Undang No. 25 Tahun 2007 about the “Capital Investment” correlate the shareholding nominee in Churchill Mining dispute. These research aspect is prescriptive and the method used in this research is normative Law. Analyst technique used in these research in qualitative data analyst. Data analysis that used in these research is secondary data. Data collection technique that used through documents journals, books, regulations of Legislation, literature, analyst in Agreement Law and Mining Law, Law Dictionary, and the classified files or documents that is related. Based on the outcome of these research, the conclusion were; First, that the principle freedom of contract between parties in making an agreement probably have a limit that should not be contradictory with Undang- Undang, should not be contradictory with decency and public order, and must held in outmost good faith. As in agreement, nominee agreement is legitimate and have the power to binding between parties. However, if creating nominee agreement not either eligible the existence of a lawful cause, as purpose to avoid the limits which have been set by the Indonesian law (law smuggling) so the meaning and the purpose of using those nominee have broke the element of outmost good faith in carrying out an agreement because it has unknown purpose to violate the provisions of law in Indonesia, so that the law in nominee agreement declare aborted by law. Second, the implementation of law in Undang-Undang No. 25 Tahun 2017 about “Capital Investment” related to nominee clause, Churchill Mining dispute have been violates the provisions of article 33 that affirms prohibition on nominee share ownership. Then in this dispute, Ridlatama Group could not make an agreement or statement that affirms share ownership in company in the name of Churchill Mining. So that Churchill Mining could not sue Indonesian Government in ICSID due to Churchill Mining doesn’t have a relations with Republic of Indonesia Government, although Churchill only have a relation with Ridlatama Group, and in any case happen dispute then Churchill should negotiate the dispute to Ridlatama Group.

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