Will the Real BANI Please Stand Up – An Update
As has been widely reported before, there had been a split within Badan Arbitrase Nasional Indonesia (“BANI”) between the groups often referred to as “BANI Mampang” and “BANI Sovereign”, with each claiming to be the rightful BANI. This split had led to legal uncertainty in Indonesia since 2016. However, the Supreme Court has recently reached decision number 232 K/ TUN/2018 on May 8, 2018 (the “Supreme Court Decision”) in an administrative dispute brought by BANI Mampang that would likely shed some light on which entity is rightfully entitled to call themselves BANI.
The Supreme Court Decision reversed an Administrative High Court Decision and held that the Minister of Law and Human Rights Decree Number AHU-00664837.AH.01.01 dated June 20, 2016 on the establishment of BANI Sovereign (the “MOLHR Decree”) was null and void. The Supreme Court Decision lends credence to BANI Mampang’s legality to use the name BANI, as BANI Sovereign’s legality had previously hinged on the MOLHR Decree. Also, BANI Mampang is the only rightful party to use the name BANI and Badan Arbitrase Nasional Indonesia based on a Jakarta Commercial Court Decision that previously ruled in favor of BANI Mampang on a trademark dispute. It is still hard to say which of the two BANIs is conclusively legitimate, because in another ongoing dispute at the South Jakarta District Court, the court held that the governing board of BANI Mampang was illegitimate. The case is currently under review by the Jakarta High Court.
In light of the above, the Supreme Court Decision seems to confirm BANI Mampang’s legality by revoking the MOLHR Decree confirming the establishment of BANI Sovereign. The aforementioned ongoing case at the South Jakarta District Court is not directly related to the BANI institution but to the legitimacy of the board of BANI, and the result will have an impact on the governing board of BANI. If parties considering arbitration clauses have grave concerns of a possible dispute on the choice of forum, they may consider incorporating an agreement on ad hoc arbitration in Indonesia.
*This article published on German-Indonesian Chamber of Industry and Commerce (EKONID) Law & Taxes Newsletter 9th Edition, June 2018
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