IMPLEMENTATION OF DISPUTE SETTLEMENT OUTSIDE THE COURT THROUGH THE INDONESIAN NATIONAL ARBITRATION AGENCY (BANI) BASED ON ISLAMIC JUSTICE
1Anis Mashdurohatun, Syaiful Khoiri Harahap, Gunarto
1Faculty of Law, Sultan Agung Islamic University
Email : anism@unissula.ac.id
Abstract
In the current era of globalization, the economy’s most prominent characteristic is the fast-paced nature that drives people to enter the free market and free competition. Proper implementation of what was agreed upon together is the hope of all parties bound in the agreement. Dispute resolution that arises in the implementation of an agreement can be settled through arbitration. The purpose of this study is to examine and analyze the truth about the implementation of dispute resolution outside the court through the Indonesian National Arbitration Board. It has been effective in providing legal certainty and justice. This study uses a sociolegal research approach (sociolegal research approach). The data used are primary and secondary data. In this analysis technique, the steps taken are collecting legal materials, both primary legal materials and secondary legal materials relating to the rule of law related to alternative dispute resolution, which is analyzed descriptively analytically. Research Findings found that the implementation of dispute resolution outside the court has not been effective because it has not provided legal certainty and justice. Weaknesses in the arrangement of third parties outside the arbitration agreement can participate in the dispute resolution process through arbitration, the settlement system, and the cancellation system of arbitration awarding outside the court through the Indonesian National Arbitration Board (BANI). The need for reconstruction of the provisions in Article 36, Article 46, and Article 70 of Law No. 30 of 1999 concerning Arbitration and Alternative Dispute Resolution.
Keywords: Dispute Settlement;BANI;Islamic Justice
Renegosiasi Kontrak Sebagai Upaya Penyelesaian Pelaksanaan Kontrak Saat Pandemi Covid-19
Syaiful Khoiri Harahap Departemen Hukum Perdata, Fakultas Hukum, Universitas Pembinaan Masyarakat Indonesia, Medan Email : syaifulhrp574@gmail.com
Abstract
The COVID-19 pandemic proves the difficulties for business actors to operate their businesses, hence many of them face constraints in fulfilling their obligation to the creditors, which subsequently causes these debtors to be declared in default. Creditors as parties entitled to the fulfillment of the obligation are expected to understand the difficulties faced by debtors due to the COVID-19 pandemic. The problems raised in this study are: first, is the covid-19 pandemic may constitute ground for default by the debtor in fulfilling his contractual obligations, second, how are the efforts to resolve the obstacles in fulfillment of obligation in the
covid-19 pandemic. This research was conducted using normative juridical methods and analyzed qualitatively. This study concludes that first, the covid-19 pandemic includes force majeure which resulted in the debtor experiencing economic difficulties to fulfill their obligation, leading to the debtor’s default which consequently resulted in the debtor losing his business and property which was used as collateral for debt repayment; second, if the debtor has difficulty in fulfilling their obligations, the debtor can ask the creditor to carry out renegotiation of the ongoing agreement based on the principle of kinship as mandated by Pancasila and the 1945 Constitution.
Keywords: Renegotiation; dispute resolution; default; covid-19 pandemic
PENERAPAN NILAI-NILAI PANCASILA DALAM PENOLAKAN PUTUSAN ARBITRASE INTERNASIONAL
Syaiful Khoiri Harahapa
Abstract
The choice of settlement of trade disputes through arbitration is because it is considered to have many advantages over settlement through general courts and also because the arbitration award is final and binding. On the other hand, the 1958 New York Convention authorizes member states to refuse the implementation of international arbitral awards. This research is a normative legal research using secondary data. The results of the analysis show that courts have an important role in determining the implementation of international arbitral awards. Courts are given the authority to reject international arbitral awards if the award is contrary to public policy and the prevailing laws and regulations. Therefore, it is recommended to the Court to consider the existence of Pancasila as the most important part of Indonesia’s public policy before deciding to reject or accept an international arbitration award.
Keywords: conditional sentencing; criminal law; justice; restorative justice; sentence
TELAAH KRITIS PUTUSAN ARBITRASE SEBAGAI DASAR PERMOHONAN PAILIT
Syaiful Khoiri Harahap Dosen Tetap Fakultas Hukum Universitas Pembinaan Masyarakat Indonesia Korespondensi : syaifulhrp574@gmail.com
Abstract
Against the arbitral award, the parties should be able to implement it voluntarily. If the losing party does not want to carry out its obligations by the specified deadline, then the obligation is a debt that must be paid by the debtor to the creditor. Based on article 8 paragraph 4, the proof in bankruptcy must be proven simply as a condition for bankruptcy of the debtor. The arbitration award should be the basis for the bankruptcy of the debtor. From the research results it can be concluded that bankruptcy can only occur if the debtor admits that he has debts to creditors and this must be proven simply. The commercial court considers the application of the arbitration award as the basis for filing a bankruptcy petition to be excessive and overlapping, resulting in the rejection of the bankruptcy petition. Therefore, judges are advised to enforce the provisions as stated in the law and be able to make legal breakthroughs (legal discoveries) in the field of bankruptcy.
Keywords: Arbitration Award, Application for Bankruptcy
Upaya Penegakan Hukum Terhadap Pencemaran Air Sungai di Taman Mercy Deli Tua
Muhammad Iqbal Altamis1, Indri Oktari2, Syaiful Khoiri Harahap3 1,2,3Faculty of Law, Â Universitas Pembinaan Masyarakat Indonesia Email : indrioktari123@gmail.com2
Abstract
The environment is a medium for mutual relations between living things and inanimate objects which form a unified whole, and humans are in it. Humans with their behavior can affect the environment (can pollute, damage or preserve the environment). Environmental pollution as its meaning is formulated in article 1 number 12 of Law no. 32 of 2009 concerning Environmental Management is “environmental pollution is the entry or inclusion of living things, substances, energy, and/or other components into the environment by human activities so that the quality drops to a certain level which causes the environment to not function in accordance with with the allotment. One of the most common environmental pollution is river water pollution that occurs due to the disposal of waste by humans. This study aims to evaluate law enforcement efforts against river water pollution in Taman Mercy Deli Tua, Kab. Deli Serdang, North Sumatra and also to find out the causes of the community throwing waste into the river from this writing is to know. By using the normative method it was found that the cause of the community disposing of waste into the river was due to the lack of awareness from the community itself and also the unavailability of a place for waste disposal. The legal efforts made by the community to tackle river water pollution are through preventive and repressive measures. In addition, coordination between local government and local government is still not effective in overcoming this problem. Several related parties, such as the Environmental Service and the Environmental Police, have not been able to work together effectively in imposing sanctions on the perpetrators of river water pollution. In this study, it is suggested that the local government can provide stricter sanctions against perpetrators of river water pollution and improve coordination with local governments in overcoming this problem. In addition, the government must also improve supervision and control of industrial and domestic activities that have the potential to cause river water pollution
Keywords: Effort, Law Enforcement, Pollution, Waste Disposal
