à Arbitration : Law number 30, 1999. (Indonesia)
à Court System in
Indonesia
à Legal Efforts :
Appeal à
Cassation à Civil Request
à Schuyt’s Horseshoe (Hoefijzer) model:
1.
Implied
Subjection (Penundukan Diri)
2.
Negotiation
(Self-Managed) : Pengelolaan sendiri
3.
Mediation (using
3rd parties) : Pra-yuridis
4.
Adjudication and
Arbitration : yuridis-kehakiman
5.
Political
Pressure : yuridis-politis
6.
Violence :
Kekerasa
à Justifications
for ADR:
Why Choose ADR?
a.
To lower court
caseloads and expenses
b.
To reduce the
parties expenses and time
c.
To provide speedy
settlement of those disputes that were disruptive of the community or the lives
of the parties’ families
d.
To improve the
public’s satisfaction with the justice system
e.
To encourage
resolutions that were suited to the parties needs
f.
To increase
voluntary compliance with resolutions
g.
To restore the
influence of neighborhood and community values and the cohesiveness of
communities (win-win solution)
h.
To provide
accessible forums to people with disputes
i.
To teach the
public to try more effective processes than violence or litigation for settling
disputes.
à Several
outcomes from the ADR process:
a.
Win/Lose : I win,
you lose
b.
Lose/Win : I
capitulate and give up, you ein
c.
Win/Win : both
winners
d.
Lose/Lose : both
losers
e.
No deal
à Other ways to
settle disputes :
a a. Negotiation : à No third party facilitator
à Voluntary
à If agreement, enforceable as contract
à Usually informal, unstructured
à Nature of proceeding : unbounded presentation of
evidence, arguments and interest
à Outcome : mutually acceptable, agreement sought
à Private
à If parties cannot settle the dispute by themselves,
and bring in a third party, they give up some control over the process but not
necessarily over the solution.
b.
Mediation : à Parties select the third one as the mediator
à Voluntary
à If agreement, enforceable as contract
à Usually informal, unstructured
à
Nature of proceeding: unbounded presentation or evidence, arguments and
interests
à Outcome : mutually acceptable agreement sought
à Private
à
The disputing parties determine when and how to proceed the settlement
à
The mediator informally proposes any kind of settlement
à
The parties are free to accept or reject the proposal
à
If the settlement fails, the process can be through another mechanism
c.
Conciliation : à Parties select the third one as the conciliator
à Voluntary
à If agreement, enforceable as contract
à Formal, structured
d.
Adjudication : à Involuntary
à Binding ; subject to appeal
à
Third party is imposed, third-party neutral decision maker, generally with no
specialized expertise in dispute subject
à
Formalized, highly structured by predetermined, rigid rules
à
Nature of proceeding: opportunity for each party to present proofs and
arguments
à
Outcome: principled decision, supported by reasoned opinion
à
Public
e.
Arbitration : à Parties selected third party decision makers, often
with specialized subject expertise. Procedural rules and substantive law may be
set by parties (written).
à Binding; subject to review on limited grounds
à
Less formal
à Nature of proceeding: Opportunity for each party to
present proofs and arguments
à Private, unless judicial review sought
à
Choice of Law
All
disputes arising in connection with this agreement shall be finally settled
under the rules of conciliation and arbitration of the ICC by one or more
arbitrators appointed in accordance with the rules and the arbitration shall be
held in Jakarta.
à
Choice of Forum
Choice
on how to settle the dispute, either by adjudication, arbitration, mediation,
conciliation or negotiation.
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