Kantiana, Indira Dewi
(2019)
Pembatalan sebagai tantangan terhadap keabsahan sebuah putusan arbitrase internasional investor-negara dengan adanya kekurangan independensi dan ketidakberpihakan majelis arbitrase = Annulment as a challenge to the validity of an international investor state-arbitral award in the existence of tribunal’s lack of independence and imaprtiality.
Bachelor thesis, Universitas Pelita Harapan.
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Abstract
Law No. 30 Year 1999 concerning Arbitration and Alternative Dispute Settlement clearly governs that an arbitrator has the obligation to act in an independent and impartial manner. However, if an arbitrator is suspected to be lacking such in his or her actions, either it is because economical, familial or employment relationships with one of the disputing parties, the applicable standard that must be proven by the suspecting party is not clear within the context of the right to recuse the arbitrator. This is also true when we move on to the article that governs the annulment mechanism itself, the lack of independence and impartiality is not a factor that is considered to be a concrete ground to annul in Indonesia. This lack of clarity very unfortunate, because the law on international arbitration out there has regulated with sufficient clarity the standard to determine when conducts or circumstances of an arbitrator can be considered to have diminished its ability to be independent and impartial. International arbitration law includes improper constitution of the tribunal and serious departure from a fundamental rule of procedure as reasons to annul. These two grounds allow parties to challenge the validity of an arbitration award in light of the lack of independence and impartiality one of the arbitrators. It is suggested that Indonesia could adopt the standard and grounds as has been utilized under international arbitration law in accordance to the culture and condition of the law in Indonesia.
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