Recognition and enforcement of foreign judgments in Indonesia

No. In general, foreign judgments arenot enforceable in Indonesia (see Article 436 (1) of the Reglement op de Rechtvordering (Rv)).

Foreign judgments are only enforceable in Indonesia if there is a bilateral or multilateral treaty for the reciprocal enforcement of foreign judgments, or if there is a specific national law that permits the enforcement of a foreign judgment such as the provision of Article 724 of the Indonesian Commercial Code on the distribution of losses in sea transportation.

In order to enforce a foreign judgment in Indonesia, the judgment creditor must ordinarily submit the case as a fresh claim to be re-litigated before an Indonesian court. The foreign judgment could serve as prima facie evidence in such a fresh claim. It is important to note that Indonesian judges also have wide discretion to evaluate and assess the foreign judgments on a case-by-case basis. This would mean that it is also possible for Indonesian courts to reject the claim if the relevant foreign judgment is held to be in contravention with public order, public policy or any prevailing Indonesian laws and regulations.

There are no applicable statutes.

Indonesia adopts the principle of non-binding force of precedent. As such, Indonesian judges are not required to follow the ruling of judicial precedents. Nonetheless, in practice Supreme Court rulings are deemed as having persuasive authority and are often followed or used as reference by the lower courts.

A notable judicial precedent relating to the application of a writ of execution is the case of Astro Nusantara International B.V., et all ( “Astro”) vs. PT Ayunda Prima Mitra, et all (“Ayunda”), where the Central Jakarta District Court rejected (and affirmed by the Supreme Court) Astro’s application for a writ of execution on the basis that the arbitral award rendered under the auspices of the Singapore International Arbitration Centre (“SIAC”) was in contravention with public order/policy. The court held that the SIAC award issuing an anti-suit injunction against Ayunda and ordering it to cease all ongoing legal proceedings in Indonesia violated the principles of non-intervention to judicial process and state sovereignty. It was also held that it was not within the ambit of commercial laws, but within the ambit of civil procedural laws.

As discussed in Question 1 above, foreign judgments are not recognized in Indonesia and therefore the enforcement of which can only be made by way of submitting a fresh claim to the Indonesian courts. The case must be re-litigated on its merits. 

As discussed above, there is no exequatur procedure in Indonesia and the disputing party(ies) will have to file a fresh claim before the Indonesian courts. and follow the procedures applicable to a civil claim proceeding. This could take months or even years to complete.

As discussed in Question 1 above, foreign judgments are not recognized in Indonesia and therefore the enforcement of which can only be made by way of submitting a fresh claim to Indonesian courts

Yes, although there is a distinction between the enforcement procedure of domestic arbitral awards and foreign or international arbitral awards.

Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution (the “Arbitration Law”) prescribes the following procedures for the enforcement of domestic arbitral awards:

1. Registration of the domestic arbitral award – the domestic arbitral award must be registered at the district court having jurisdiction over the respondent (the “Local District Court”) within 30 days from the date of issuance of the award. The Arbitration Law requires the registration to be made directly by the arbitrator(s) or by the disputing party(ies) pursuant to a power of attorney from the arbitrator(s).
2. Issuance of a deed of registration –a deed of registration of the arbitral award shall be issued and shall serve as evidence that the domestic arbitral award has been registered at the Local District Court.
3. Issuance of a writ of execution (application for an exequatur order) - The claimant may now issue a writ of execution and apply for an exequatur order from the Chairman of the Local District Court.
4. Execution of the arbitral award – If the losing party refuses to voluntarily comply with the writ of execution, the winning party may: (i) file a petition with the court to request the court to formally summon the losing party and ordering it to comply with the award within 8 days of the date of the summons (aanmaning); and (ii) request for the seizure of the losing party’s assets to be sold at a public auction.

7.2 Foreign Arbitral Awards

Indonesia has ratified the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”). The procedure for enforcing a foreign arbitral awards is set out in Articles 65 to 69 of the Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution (“Arbitration Law”).

Pursuant to the Arbitration Law, an “International Arbitral Award” is defined as “an award which is rendered by an arbitral institution or individual arbitrator outside the jurisdiction of the Republic of Indonesia, or an award which is rendered by an arbitral institution or individual arbitrator, of which, pursuant to legal provisions of the Republic of Indonesia, shall be deemed as an international arbitral award.”

Provided that the international or foreign arbitral award fulfils the following prerequisites, it would be enforceable in Indonesia:

1. the award is rendered by an arbitrator or arbitration panel in a country that is a party to a bilateral or multilateral treaty on the recognition and enforcement of international arbitral awards (e.g. the New York Convention); 1 Article 66, the Arbitration Law.
2. the subject matter of the award must be within the ambit of commercial law (e.g. trade, banking, investment, industry, financing, and intellectual property); 2 Article 66, the Arbitration Law.
3. the award does not contravene public order/policy; 3 Article 66, the Arbitration Law.
4. the award must be registered at the Registrar of Central Jakarta District Court; 4 Article 65, the Arbitration Law.` and 
5. a writ of execution (exequatur order) for the award has been issued by the Chairman of Central Jakarta District Court (save for arbitral awards which involve the State of the Republic of Indonesia as one of the disputing parties, in which case the writ of execution shall be issued by the Supreme Court). 5 Article 66, the Arbitration Law.`

Below is a brief overview on the procedures for the enforcement and execution of foreign arbitral awards.

1. Registration of the foreign arbitral award -  the foreign arbitral award must be registered at the Central Jakarta District Court. The Arbitration Law requires the registration to be made directly by the arbitrator(s) or by the disputing party(ies) by virtue of a power of attorney from the arbitrator(s). Unlike the registration of domestic arbitral awards, there is no time limit prescribed for the registration of foreign arbitral awards.
2. Issuance of a deed of registration – a deed of registration of the arbitral award shall be issued and shall serve as evidence that the foreign arbitral award has been registered at the Central Jakarta District Court.
3. Issuance of a writ of execution (application for an exequatur order) - The claimant may now issue a writ of execution and apply for an exequatur order from the Chairman of Central Jakarta District Court. If the execution is to be effected in a place which falls under the jurisdiction of another district court, the Central Jakarta District Court will transfer the writ of execution to the relevant district court for execution purposes.
4. Execution of the foreign arbitral award – if the losing party refuses to voluntarily comply with the writ of execution, the winning party may: (i) file a petition with the court to request the court to formally summon the losing party and ordering it to comply with the award within 8 days of the date of the summons (aanmaning); and (ii) request for the seizure of the losing party’s assets to be sold at a public auction.

Please see our discussion in Question 3 above.

Indonesian laws do not prescribe a specific time limit for the exequatur procedure. In practice, it typically takes 2 to 3 months to obtain an exequatur order for a domestic arbitral award, and about 5 to 8 months for a foreign arbitral award, from the Central Jakarta District Court, depending on the complexity of the case and whether or not the application for an exequatur order is challenged.

As for the execution process, if the losing party refuses to voluntarily comply with the writ of execution, it may take 6 months or more depending on the complexity of the case (i.e if there is a challenge on the ownership of the assets that will be executed  to satisfy the arbitral award).

10.1 Domestic Arbitral Awards

The application for an exequatur order for domestic arbitral awards is an ex parte proceeding. This means that the order could be issued without needing to hear the award debtor. However, it is not uncommon for the losing party to challenge the enforcement and execution process. Based on our experience, a losing party will usually rely on the absence of clarity on the definition of public order/policy grounds to challenge the enforcement of a domestic arbitral award on the basis that the arbitral award violates Indonesian public policy.

10.2 Foreign Arbitral Awards

The application to obtain an exequatur order for foreign arbitral awards is also an ex parte proceeding. Furthermore, Article 68 of the Arbitration Law provides that an exequatur order of the decision of Central Jakarta District Court cannot be challenged (no appeal or cassation can be filed). In considering whether to recognize and enforce  foreign arbitral awards,  Central Jakarta District Court will not review the awards on the merits of the case.

As it is possible to refuse the enforcement of a foreign arbitral award under the New York Convention on the grounds of violation of public policy/order, in practice a losing party will try to block the enforcement of a foreign arbitral award by filing a lawsuit and arguing that the recognition and enforcement of such an award will violate Indonesian public order/policy.