ARTI PENTING KLAUSULA ARBITRASE YANG KOMPREHENSIF

Abstract

The settlement of trade dispute, particular in the international trade through the Alternative Dispute Resolution such as arbitration in not a new solution that can be taken by party legally bound to a contract of a trade contract. The settlement of dispute through arbitration had been known since hundreds years ago either in England or United States of America. The Arbitration has some advantages in settling a trade dispute than the settlement of dispute through the court. The main advantage of arbitration is its confidentiality or known the Right of Privacy, therefore it is expected that it will not damage the reputation of the business actor concerned. In addition to its confidentiality, the advantage of arbitration is a principle of "win-win solution" in its decision that it is considered will bring more to justice for the disputing parties. Practically, the advantages of arbitration in settling a dispute may not be always reached, it means that it will often take more times in settling a dispute through arbitration than through a court due to the difficulty finding a mutual agreement to appoint an arbiter for example, or due to the arbitration clause brings a multi interpretation. In addition, the satisfaction of an arbitration decision of its execution may not be often easy to be implemented that it needs an intervention of the Court (Pengadilan Negeri). Generally those cases coused by the arbitration clause was not comprehensive formulated. However, people still choose arbitration in settling an international trade dispute with the reason that : a. There is none of the international court that can investigate an international trade dispute in this world, b. A national court is considered as the unsafe court by the developed countries, c. Avoiding a 'forum shopping', means the same disputes may be undertaken by the court from different countries. It needs to be considered that even has some advantages, not all disputes or cases can be settled through arbitration. A dispute that cannot be settled by a mutual agreement prevailing to the laws shall not be settled through arbitration. Therefore, arbitration shall only settle a trade disputes and a thing fully delegated to parties concerned prevailing to the laws. Basically, parties concerned are free to choose words used in arbitration clause, however, it needs to consider some certain matters that have been standardized for these formulation and have been in effect internationally. Some norms and rules in arbitration that have been in effect internationally are from UNCITRAL, Arbitration Rules (UAR), International Chamber of Commerce (ICC) and American Association (AAA), and Badan Arbitrase Nasional Indonesia (BANI) that is in effect in Indonesia. In a formal judicial, the provision of arbitration in Indonesia is governed in Act No. 30 of 1999 on Arbitration and Alternative Dispute Resolution. The settled of dispute through arbitration shall not always be conducted fluently. There are still problem and barriers occurred if the arbitration clause was not comprehensive formulated either related to the appointment of an arbiter, the determination of a place of arbitration, the laws basic, the language, or how to appeal its decision and the arbitration costs. On the appointment of an arbitration, each party concerned is unwilling to appoint the arbiter immediately. It is needed a certain qualification that has to be fulfilled by a candidate of arbiter. So that, there might be a difficulty occurred to find a qualified person as an arbiter prevailing to the qualification requiredBased on the above explanation, there are so many variety of arbitration clause elemens, so that why how important the arbritration clause should be comprehensive formulated for increasing the "bargaining position" both of parties in settlinga dispute.