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Luther LLP in collaboration
with Maqdir Ismail & Partners
Will the Real BANI Please Stand Up – An Update
Luther LLP is one of the largest continental European lawfirms in
Singapore. With our further lawfirms in Yangon and Shanghai as well
as our corporate services offices in Kuala Lumpur, Delhi-Gurgaon,
Shanghai and Singapore, we offer a comprehensive range of services
to our clients. In Indonesia we have formed a strong collaboration with
Maqdir Ismail & Partners in order to service our clients in their ventures
in this interesting market. Maqdir Ismail & Partners are highly regarded
for their expertise particularly in litigation, corporate law as well as in
mergers and acquisitions.
A
s 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.
Arbitration
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.
Luther LLP
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Bank of China Building #25-01
Singapore 049908
Phone : +65 640 88000
Fax : +65 640 88001
Email
:
Maqdir Ismail & Partners
Jl. Latuharhary No. 6A
Menteng, Jakarta Pusat 10310
Indonesia
Phone: : +62 21 3911191
Fax:
: +62 21 3147502
Email:
:
Annisa Ismail
Senior Associate at Maqdir
Ismail & Partners
+ 62 21 391 1191
R. Bayu Perdana
Associate at Maqdir Ismail &
Partners
+ 62 21 391 1191
