Author: Fica Candra Isnani, S.H.
On Wednesday, July 14, 2021, a webinar will be held with the theme “Solving International Business Dispute” organized by Smart Wikan. The resource persons for this webinar are Ricardo Simanjuntak (Ricardo Simanjuntak & Partners) and Byron Perez (Counsel, HKIAC) moderated by Ketut Octania Fineta Diarsa (PDB Law Firm).
As we all know, an Agreement can be created in two forms: written or oral. It is highly recommended to form written Agreements—in this regard, contracts—for business-related Agreements to ensure the protection of interest of both parties when a dispute arises. In contract drafting, it is very important for both parties to write down their clauses/interests in the form of clear sentences to avoid misinterpretation. Some other factors that needs to be looked carefully at is regarding good faith and whether the object of the Agreement is probibited by the law or not. Thus it is safe to assume that the key to a successful, solid and secure business Agreement lies in the content of the clauses included by the parties in the Agreement.
Ricardo Simanjuntak explained about the factors why it happened between the parties, namely: The agreement (agreement) was not made in writing, the agreement was made in writing but with unclear/biased words, the capacity of the parties that made the parties one of the parties to the contract is a party with bad intentions, one of the parties is facing financial problems/bankruptcy, the object of the agreement is against the law/or prohibited by law, and contract television is non adimpleti.
In disputes the international business parties prefer not to take it to the court where it was done, but to Arbitration. Ricardo Simanjuntak also conveyed that the Arbitration Agreement was not terminated/cancelled due to: Death of one of the parties who entered into the contract, One of the contractors went bankrupt, Something new was used, One of the contractors was insolvent, inheritance, the conditions for the termination of the main engagement were applied, When the agreement was submitted to third parties and Termination or in the main contract.
Byron Perez explained more about the Hong Kong International Arbitration Center (HKIAC). HKIAC is a non-profit institution and organization established under the laws of Hong Kong. HKIAC is one of the world’s largest dispute settlements, agreed upon in arbitration, mediation, adjudication, and domain name disputes. The agreement made by the parties before the dispute occurs must contain an HKIAC model arbitration clause whose examples of clauses are as follows:
“Any dispute, controversy, difference or claim arising out of or relating to this contract, including the existence, validity, performance, breach or termination thereof or any other regarding non-contractual obligations arising out of or relating thereto shall come and be finally resolved by arbitration administered by the Hong Kong International Arbitration Center (HKIAC) under the Arbitration rules governed by HKIAC in effect at the time the notice of arbitration is submitted which governs: clauses of arbitration law, position of arbitration, number of arbitrators and arbitration.”
If the disputing parties choose to settle the dispute through HKIAC but the agreement has been made before the dispute occurs and there is no arbitration clause that regulates, then the parties can make a settlement through HKIAC based on the rules regulated by HKIAC, where the disputing parties must make an agreement which contains the following clauses:
“We the undersigned agree to refer to arbitration administered by the Hong Kong International Arbitration Center (HKIAC) under the rules of arbitration governed by HKIAC against any meeting, controversy, difference or claim (including any statement of non-contractual liability) arising of or relating to: (Short description of the contract regarding any controversy, difference or claim that has arisen or may arise).”
Since its establishment in 1985, HKIAC has handled more than 11,000 disputes. Apart from Hong Kong, HKIAC also has representatives in Seoul and Shanghai. HKIAC consists of experienced Arbitrators and Mediators with various backgrounds who assist in resolving disputes. It is hoped that the current existence of HKIAC can help business actors in resolving international business disputes that occur.