Penerapan prinsip yurisdiksi konkuren dalam putusan provisional arbitrase komersial internasional = The concurrent jurisdiction principle in provisional measures of international commercial arbitration
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Institusion
Universitas Pelita Harapan
Author
Afla, Edwina Chairmanda
Subject
K Law (General)
Datestamp
2021-08-09 07:33:51
Abstract :
Arbitration as an alternative dispute resolution has grown rapidly due to the need of an effective and efficient legal infrastructure in solving international commercial disputes. One of the main discussion in the international arbitration is regarding the importance of interim measures or provisional measures. Interim measures or provisional measures are procedural mechanism used by courts and arbitral tribunals to address urgent matters, chiefly with a view to protecting the subject matter of the dispute. Parties to an arbitration agreement can have a critical interest in obtaining provisional measures swiftly and effectively, as time is of the essence when a party?s interest may be irreparably harmed by the conduct of the opposing party. Despite the principle of the autonomy of the arbitral proceeding, there is a principle of concurrent jurisdiction that allows the parties to request a provisional measure from a court or arbitral tribunal. The various sources of arbitration law reveal a growing acceptance of this principle that courts and arbitral tribunal have concurrent powers to order provisional measures. The focus of this study is the rules regulating concurrent jurisdiction, the existence of the concurrent jurisdiction principle in arbitration practice, and Indonesia?s arbitration law responses to the principle. This study uses a normative approach with descriptive analytical and qualitative data analysis method. The result suggests that the principle is widely accepted and existed in international arbitration practice but Indonesia?s arbitration law is silent to the issue.
Arbitration as an alternative dispute resolution has grown rapidly due to the need of an effective and efficient legal infrastructure in solving international commercial disputes. One of the main discussion in the international arbitration is regarding the importance of interim measures or provisional measures. Interim measures or provisional measures are procedural mechanism used by courts and arbitral tribunals to address urgent matters, chiefly with a view to protecting the subject matter of the dispute. Parties to an arbitration agreement can have a critical interest in obtaining provisional measures swiftly and effectively, as time is of the essence when a party?s interest may be irreparably harmed by the conduct of the opposing party. Despite the principle of the autonomy of the arbitral proceeding, there is a principle of concurrent jurisdiction that allows the parties to request a provisional measure from a court or arbitral tribunal. The various sources of arbitration law reveal a growing acceptance of this principle that courts and arbitral tribunal have concurrent powers to order provisional measures. The focus of this study is the rules regulating concurrent jurisdiction, the existence of the concurrent jurisdiction principle in arbitration practice, and Indonesia?s arbitration law responses to the principle. This study uses a normative approach with descriptive analytical and qualitative data analysis method. The result suggests that the principle is widely accepted and existed in international arbitration practice but Indonesia?s arbitration law is silent to the issue.
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