Background

Corona Virus Disease 2019 (COVID-19) Pandemic has affected almost all activities, of which the trial activities both in court trial and arbitration trial are not exempted.

Supreme Court of the Republic of Indonesia as the head of judiciary institution in Indonesia has responded to the challenges caused by COVID-19 pandemic by issuing guidelines for the implementation of tasks during the preventing period of the spread of COVID-19 in the Supreme Court and its subordinate judiciary bodies through the Supreme Court Circular Letter No. 1 of 2020. This move was also immediately carried out by the Indonesian National Arbitration Board (“BANI Arbitration Center”). As one of the largest arbitration institutions in Indonesia, BANI also responded to the challenges caused by the COVID-19 pandemic by issuing Decree No. 20.015/V/SK-BANI/HU on Rules and Procedures for the Implementation of Electronic Arbitration (“Electronic Arbitration Rules”).

Conditions Causing Arbitration Proceedings be Held Electronically

Electronic Arbitration Rules can be used in disaster emergencies condition and in special condition when (i) a party wants to submit an arbitration request; or (ii) an arbitration trial will be tried or is being tried (ongoing).

Disaster emergency condition which is regulated in the Electronic Arbitration Rules are disaster emergency condition as referred to under Article 1 of Law No. 24 of 2017 on Disaster Management which causes the normal arbitration proceeding is impossible to be implemented, both natural disasters and non-natural disasters, including the occurrence of epidemic, pandemic, major flood, national emergency, riot, rebellion, condition ready for combat, war, sabotage or demonstrations of which existence is declared by authorized institutions.

Furthermore, the special conditions stipulated in the Electronic Arbitration Rules are the conditions where the party submitting an application for arbitration, another party in arbitration, or an arbitrator who is located outside the region or overseas that faces difficulty to come to the BANI Arbitration Center’s secretariat or place of arbitration trial due to an emergency disaster or any other extraordinary conditions, among others due to illness, the prohibition by health officials including doctors or other authorized officials who forbid them to travel, or other conditions that make them impossible to travel.

The implementation of arbitration trial based on the Electronic Arbitration Rules is deemed to have been carried out at the location according to the location of the Indonesian National Arbitration Board in Jakarta or at the BANI Representative’s place where the trial took place.

Procedure to Request for the Electronic Arbitration Proceeding

The electronic arbitration proceeding will be held if the parties agree to use the Electronic Arbitration Rules for the case that will be tried or is already being tried.

The agreement of the parties must be carried out in good faith based on cooperative and non-confrontative procedure.

In the event of a disaster emergency or special circumstances as referred above, a party may apply for an electronic arbitration trial. Request for electronic arbitration application is subject to the BANI Arbitration Rules and Procedures applicable as per 1 January 2018 (“BANI Arbitration Rules and Procedures”), unless otherwise stipulated under the Electronic Arbitration Rules.

The payment of an arbitration application will still refer to the BANI Arbitration Rules and Procedures. Additional costs incurred for conducting electronic arbitration proceeding shall be borne equally by the parties. The deposit to organize electronic arbitration trial deposit shall be paid before the trial is commenced.

Implementation of Arbitration Trial under the Electronic Arbitration Rules

When the parties agree to implement the Electronic Arbitration Rules, the trial can be conducted through internet-based telecommunication means, including but not limited to the method of video conference or virtual conference by a platform agreed by the parties.

The parties must agree that those who can attend and participate in the trial under the Electronic Arbitration Rules are their principal and their attorney. The parties also agree to maintain the confidentiality of the trial and not to record it.

Three days before the implementation of the trial based on the Electronic Arbitration Rules, the parties must conduct the technical preparation for the trial. The technical implementation of the trial which includes the preparation and checking of the platform that will be used by the parties and the secretary of the panel of arbitrators. The parties also need to convey who will attend the trial.

The presiding arbitrator or a single arbitrator presides the trial based on the applicable rules and procedures by giving equal opportunity to the parties. The parties are obliged to carry out the trial in an orderly manner by referring to the trial procedure.

It is possible to perform mediation for an electronic trial. If the parties do not reach settlement during mediation then the arbitration trial will be held.

Evidences and/or documents in the trial that will be submitted by the parties can be sent via email in pdf format or physically submitted. The examination of witnesses and experts is still implemented based on the civil procedural law as regulated under Article 37 paragraph (3) of Law Number 30 of 1999 on Arbitration and Alternative Dispute Resolution (“Arbitration and ADR Law”) which prior to giving the testimony, witnesses or experts must take an oath/promise.

Arbitration Award Conducted by Electronic Arbitration Rules

Arbitration award held by the Electronic Arbitration Rules is read out by the arbitrator electronically. Arbitration award read out by the arbitrator electronically by law means that an award is considered to have been implemented by sending a copy of the arbitration award through electronic media, with due regard to the provisions of Article 58 Arbitration and ADR Law as well as Article 35 of BANI Arbitration Rules and Procedures. However, after we confirm to BANI secretariat by phone call, BANI inform that the arbitration award will read out by the arbitrators in the electronic trial.

Other provisions related to the implementation of electronic arbitration that have not been regulated under the Electronic Arbitration Rules and not contained in the BANI Rules and Procedures will be determined by the BANI’s board of management.

Ghazi Luthfi