ELECTRONIC HEARING IN BANI ARBITRATION CENTER (BANI)
On May 28, 2020, BANI issued Decree Number 20.015/V.SK-BANI/HU concerning the Rules and Procedures for Electronic Arbitration ("Electronic Arbitration Decree") signed by the Chairman of the Governing Board of BANI M. Husseyn Umar, SH FCBArb, FCIArb.
The Electronic Arbitration Decree was issued by considering that the meeting and hearing of the Arbitration Tribunal or Sole Arbitrator can be held at any time and place including through the internet if deemed necessary. In addition, the state of disaster emergency and other special circumstances and the demands of the times require more effective and efficient electronic case administration and arbitration hearings.
Thus, with the Electronic Arbitration Decree, BANI Governing Board's Decree No. 20.07/III/SK-BANI/HU dated March 23, 20202 concerning Temporary Suspension of Hearings at BANI During the Corona Virus Disease (COVID-19) Pandemic is declared inapplicable. Meanwhile, the Electronic Arbitration Decree came into force on May 28, 2020.
In the Rules and Procedures for Electronic Arbitration, there are 12 Articles as follows:
Article 1. Scope
- These Electronic Arbitration Rules and Procedures can be used if a state of disaster emergency and special circumstances occur when:
a) A party wishes to submit a request for arbitration;
b) An arbitration hearing is going to take place or an arbitration hearing is in progress
- What is meant by a state of disaster emergency is referred to in Article 1 of Law Number 24 of 2017, which makes it impossible to carry out the normal arbitration proceedings.
- Circumstances that qualify as a state of disaster emergency, either natural disaster and non-natural disaster, include epidemics, pandemics, major floods, national emergencies, riots, rebellions, conditions of combat, war, sabotage or demonstrations whose existence is declared by the authorities.
- Circumstances that qualify as special circumstances are circumstances where:
a) The party who wishes to submit a request for arbitration; or
b) One or both parties or one or more arbitrators are outside the region or overseas, who have difficulties coming to BANI secretariat or the place of the arbitration proceedings due to a state of disaster emergency as stipulated in paragraph 2 and paragraph 3 above and or there are other special circumstances that do not allow the party requesting the arbitration or the parties to appear at BANI secretariat or the place of the arbitration proceedings. These special circumstances include illness; prohibitions from health officials including doctors or other authorized officials who forbid him to travel or other circumstances that do not allow him to travel.
- The hearing using electronic arbitration rules and procedures is considered to be held at BANI Arbitration Center, Jakarta or at BANI Representative's place where the hearing is held.
Article 2. Agreement of the Parties
- These electronic arbitration rules and procedures will be implemented if the parties agree to use these rules and procedures for cases to be carried out or those that are being carried out.
- This agreement of the parties must be carried out in good faith based on cooperative and non-confrontational procedures.
Article 3. Request for Arbitration
- In the event of circumstances as regulated in Article 1 paragraphs 1,2,3 and 4, a party may submit a request for arbitration electronically.
- This request for arbitration submitted electronically, unless determined according to these rules and procedures for electronic arbitration, is subject to the requirements for a request for arbitration as stipulated in the applicable BANI Arbitration Rules and Procedures.
- Payment for a request for arbitration electronically is carried out according to the provisions as stipulated in the applicable BANI Arbitration Rules and Procedures.
Article 4. Hearing Rules
In the event that the parties agree to implement these electronic arbitration rules and procedures, the hearing can be conducted using internet-based telecommunications facilities including but not limited to video-conference or virtual conference teleconferences using platforms agreed upon by the parties.
Article 5. Hearing Confidentiality
- The parties must agree that those who can attend and participate in the hearing according to these rules and procedures for electronic arbitration are the principals and their legal counsels.
- The parties agree to maintain the confidentiality of the hearing, bearing in mind that the arbitration hearing is held in private.
- The parties agree not to record the hearing, which is subject to these rules and procedures.
Article 6. Technical Preparation for Hearing
- Three days before the hearing according to these rules and procedures for electronic arbitration, the parties are required to carry out technical preparations for the hearing.
- The technical implementation of the hearing shall be carried out by the parties and the secretary of the Arbitration Tribunal.
- The technical implementation of the hearing includes the preparation and checking of the platform equipment to be used.
- Submission of who from both parties will attend the hearing.
Article 7. Administration of Hearing
- The Chairperson of the Arbitration Tribunal/Sole Arbitrator presides on the hearing according to the applicable hearing rules and procedures by giving equal opportunities to the parties.
- The parties are obliged to carry out the hearing in an orderly manner with due regard to the hearing procedures.
- In electronic hearings, it is still possible to hold a mediation. If the mediation does not reach an amicable settlement, the arbitration proceedings can continue.
Article 8. Evidence and Documents
Evidence and/or documents to be submitted by the parties can be sent via email in PDF format or submitted physically.
Article 9 Witnesses and Experts
- Witness and expert statements must be preceded by taking an oath/pledge.
- Examination of witnesses and experts is carried out by observing Civil Procedure Law in Indonesia in accordance with Article 37 paragraph 3 of Law Number 30 of 1999.
Article 10. Award
- The award is pronounced by the Arbitrator electronically.
- The pronouncement of the award referred to in paragraph 1 is legally carried out by sending a copy of the electronic award to the parties, through electronic media, with due regard to Article 58 of Law Number 30 of 1999 in conjunction with Article 35 of BANI Rules and Procedures.
Article 11. Hearing Fees
- Additional fees incurred for conducting electronic hearings are borne equally by the parties.
- The electronic hearing deposit is paid before the hearing is held.
Article 12. Vacuum in Rules and Procedures
- Unless otherwise specified in these Arbitration Rules and Procedures, BANI Rules and Procedures that apply to normal arbitration proceedings remain in force.
- Other provisions relating to electronic arbitration that are not regulated in these rules and procedures and which are not contained in normal arbitration rules and procedures, will be determined by BANI Governing Board.