Reformasi Hukum Arbitrase Indonesia: Rekonstruksi Regulasi Emergency Arbitrator Pasca Peraturan BANI 2025

Abstract

This study aims to analyze the normative conflict (legal gap) concerning the existence of the Emergency Arbitrator (EA) following the enactment of the 2025 BANI Rules under the framework of Law No. 30 of 1999 on Arbitration. Furthermore, it formulates an ideal model of legislative reconstruction to ensure legal certainty in enforcing emergency decisions in Indonesia. This study employs a normative doctrinal legal research method with statutory, conceptual, and comparative approaches. The comparative analysis benchmarks Indonesia's legal framework against established pro-arbitration regimes in Singapore, Hong Kong, and Canada. The findings reveal a statutory recognition gap since Law No. 30 of 1999 lacks provisions for EAs, generating potential doctrinal obstacles regarding enforceability. The challenge stems from rigid interpretations of "finality" and arbitral award definitions, rather than inherent non-enforceability. Procedurally, short challenge deadlines represent procedural inconveniences, whereas due process violations (audi et alteram partem) constitute fatal defects. In SOE disputes, commercial activities (acta jure gestionis) require express waivers for execution immunity, making non-seizure interim measures on separated state assets effective without breaching Article 50 of Law No. 1 of 2004. This study recommends amending Law No. 30 of 1999 by incorporating a statutory definition of EA in Article 1, extending pre-tribunal interim relief jurisdiction in Article 32, establishing a fast-track exequatur integrated with PERMA No. 3 of 2023, and clarifying non-seizure interim relief for SOE assets to enhance legal certainty and investment competitiveness.