Eksistensi perjanjian arbitrase dalam khazanah hukum perjanjian indonesia

Kurniawan, Ari (2005) Eksistensi perjanjian arbitrase dalam khazanah hukum perjanjian indonesia. Masters thesis, Universitas Pelita Harapan.

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Abstract

Arbitration agreements basically contain consensus between the parties to settle existing or potential dispute arising between such parties through arbitration. Instead of the obligation to fulfill in such a specific form according to article 9 paragraphs 3 Law No 30 of 1999, arbitration agreement also must fulfill the condition of legality formation agreement according to article 1320 Indonesia Civil Law. Should the parties involved in a dispute have entered into an arbitration agreement, than according to article 11 paragraph 3 Law No 30 of 1999 stated that the parties have no right to solve the dispute to the district court. It means by agreeing such an arbitration agreement the parties have given such an absolute competent for arbitration to adjudicate such dispute. According to article 1338 paragraph 2 Indonesian Civil Law the cancellation of an agreement can be performed based on consensus of the parties. If the parties want to cancel their arbitration agreement it only can be perform according to their consensus to cancel the arbitration agreement. Basically the arbitrator competence to cancel the arbitration agreement only exists if the parties give such an authority in the arbitration clause. Judges council also has such an authority to cancel the arbitration agreement if the arbitration agreement doesn't fulfill subjective condition based on article 1320 Indonesian Civil Law and one of the parties can not perform the obligation in arbitration agreement. Based on the cancellation of the arbitration agreement the parties have no right to solve such a dispute to arbitration, the authority to adjudicate the parties dispute has return to district court. According to opinions from the supreme court of The Republic of Indonesian about the cancellation of arbitration agreement it can conclude that the cancellation of arbitration agreement must in written in order to prove that arbitration has no absolute competence to adjudicate the parties dispute because their authority has been withdraw by the parties.

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