“Since 170 years ago until today, Indonesia have not owned Private International Law for itself”
Nowadays, many of the activities by Indonesian Citizens are intersecting with the Foreign Nationals, ranging from marriage affairs or divorce between the Indonesian Citizen with the Foreign Nationals within Indonesia territory or oversea, adoption of Indonesian children by Foreign Nationals, to business transaction between Indonesian Citizen with the Foreign Nationals within the Indonesia territory of oversea.
The private international law that is being used in Indonesia up until now are the provisions of Article 16, Article 17, and Article 18 of Algemeene Bepalingen van Wetgeving voor Nederlands Indie (AB) Staatsblad 1847 No 23 of 1847. This regulation is a legacy of the Dutch colonials and it is not applicable to today’s condition.
If we see the development of the private international law in other countries, Japan has already regulated its private international law since 1898, China since 1918, and Thailand since 1939. Even the Dutch as the makers of Algemeene Bepalingen van Wetgeving voor Nederlands Indie (AB) Staatsblad 1847 No 23 of 1847 already have an updated regulation since 19th of May 2011.
For your knowledge, we cite Article 16, Article 17, and Article 18 of Algemeene Bepalingen van Wetgeving voor Nederlands Indie (AB) Staatsblad 1847 No 23 of 1847 as follow:
Furthermore, affairs that are intersecting with private international law, other than referring to the Article 16, Article 17, and Article 18 of Algemeene Bepalingen van Wetgeving voor Nederlands Indie (AB) Staatsblad 1847 No 23 of 1847, are matters regulated by international instruments such as:
Including national instrument:
However, our main concern is that the abovementioned sources of law are currently unable to provide legal certainty. We observe in the practices of contract drafting in the mining sector, where the majority of mining contract and oil & gas contract between the Indonesian party and the foreign party is still using foreign law as their choice of law. This is due to the current private international law is unable to provide trust on Indonesian law.
Currently, there is a Draft on the Regulations concerning Private International Law made by the Government, however, such draft has not yet included in the National Legislation Programme year 2015-2019 in the House of Representatives. This is an issue to be solved by the Government and House of Representatives immediately, due to the urgent need of the new Regulations concerning Private International Law in corresponding with high interaction level between the Indonesian Citizens and the Foreign Nationals.
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