The development of Indonesian lawyers’ international business law. The development of business law in Indonesia is also controlled by the development of international law. The working area of Indonesian lawyers is getting wider, and all of them will compete with foreign lawyers.
The development of business law in Indonesia cannot be separated from the relevant international agreements. Through Law no. 7 of 1994, Indonesia has ratified the Agreement Establishing the World Trade Organization. This ratification initiated a new world of international trade which most influenced the rule of law in each country. For Indonesia, the agreements reached by the ASEAN Economic Community have increasingly removed national boundaries. Including the provision of legal services.
The provision of cross-country legal services will be seen more often. Foreign advocates arrive in Indonesia, or vice versa, Indonesian advocates provide legal services in other countries or cross-country law firm cooperation.
By referring to the notion of ‘service trade and modes of supply’ in the World Trade Organization, the Chairperson of the National Leadership Council of the Indonesian Advocates Association (DPN Peradi), Fauzie Yusuf Hasibuan, explained that the legal services sub-sector in global competition would cover many things.
First, from the territory of one member country to the territory of another member country (from the territory of one Member into the territory of any other Member). This is known as cross border trade. In this case, the provision of legal services crosses the geographical boundaries of the country.
Second, what is mentioned in consumption abroad, in the area of one country for service customers from other member countries (in the territory of one member to the service consumer of other members). Third, the mode of commercial presence, in the sense that by a service supplier of one member country, through the presence of a service provider’s business in the territory of another member country (by a service vendor, through commercial presence in the territory of any other member).
Fourth, the mode of presence of natural persons, in the sense by a service supplier of one member country, through the presence of people in the territory of another member country (by a service vendor of one member, through the presence of natural persons of a member in the territory of any other member). ).
According to Fauzie, the government of international trade is impossible to be avoided at this time. The impact will be felt on several law enforcers including advocates. That is the reason, the responsibility for preparing all resources and infrastructure is not only in the hands of the government, but also legal careers such as advocates.
The human resources of Indonesian advocates must also be well prepared to enter the international legal service highway. As an advocate organization, said Fauzie, Peradi has played a role in improving the quality of approximately 45 thousand members spread across 102 branches and 57 Legal Contribution Centers (PBH). “Peradi is committed to improving the quality of Indonesian advocates,” said Fauzie in an international seminar held by Peradi’s DPN and the Faculty of Law, North Sumatra Campus in Medan, Monday (23/4).
In line with Fauzie’s vision, the Chancellor of the North Sumatra Campus, Runtung Sitepu, touched on the priority of the academic community group to prepare themselves to enter global competition. Competition between countries enters into many fields, including some sectors of legal services and law teaching. For academics, for example, it is important to be able to take action to produce creations that are considered international (international journals).
This problem also emerged in Peradi’s international seminar with the topic ‘Internationalizing Business Movement in the Globalization of Markets and Economics from the Perspective of the Indonesian Business Law’. Mention, for example, how to ensure that international contracts that are made can truly protect common needs.
The development of technology has made it easier to work on cross-country contracts. One thing that needs to be emphasized, according to Nicholas M. Watson, Foreign Legal Consultant at Irianto Andreas and Partners Law Office, is which law will occur in international agreements.
Another thing that emerged and was asked by participants was the language in the agreement. The arrival of Law no. 24 of 2009 concerning the flag, language and symbols of the state and the national anthem and several cases that were decided by the courts showed the primacy of making bilingual contracts. If the contract is made in Indonesia, then the contract must use the Indonesian language. Even so, the power of a foreign language for an advocate is really important in this globalization era.
The development of business law that is no less interesting in the global trade highway is mergers and acquisitions. The more aggressively the Government opens the investment valve, the greater the merger and acquisition process, whether involving shares or businesses.
There are several things that advocates need to understand in implementing mergers and acquisitions, including the issue of disputes over needs. Article 126 of Law no. 40 of 2007 concerning Limited Liability Companies makes it clear that legal actions for merger, consolidation, acquisition or division must take into account the needs of the company, minority shareholders, company employees, creditors and other business partners of the company, and citizens and healthy competition when doing business.
Cross-border insolvency is another problem that must get the attention of advocates in an age of global competition. Advocate Ricardo Simanjuntak explained that the markets of several Southeast Asian countries could become single because of the economic integration that had been agreed at the ASEAN Economic Community meetings.
Article 5 paragraph (1) of the Asean Charter expressly states that the highway of goods, people and capital that cannot be avoided: “to create single and production base which is stable, prosperous, highly competitive and economically integrated with effective facilitation for trade and investment in which there is is free flow of goods, services and investment, facilitated movement of business persons, professionals, talents and labor, and freer flow of capital”.
The provision of legal services in cross-border company bankruptcy plans is difficult to avoid because multinational companies have assets in a number of countries at once. The basic question is what can be done if the assets of a company that are confirmed bankrupt by the Indonesian courts are located in another Southeast Asian country?
Articles 212 and 213 of Law no. 37 of 2004 concerning Bankruptcy and Postponement of Debt Payment Obligations (PKPU) states that creditors who after the bankruptcy decision is submitted take payment of settlements or some of their receivables from objects that are counted as bankrupt assets located outside the territory of Indonesia, which are not attached to them with the right to be prioritized, must exchange to the bankrupt property all what he got.
A creditor who transfers all or some of his receivables to a bankrupt debtor to a 3rd party, intends that the 3rd faction take priority payments over someone for all or some of his receivables from bankrupt assets located abroad, must exchange what he gets.
In the event of a bankruptcy that causes a bankrupt company to be located in a number of countries, the work of a curator and an advocate becomes more complex. Allows Indonesian lawyers to be obliged to carry out litigation or ask for contributions from state advocates in place to take care of it.
Peradi’s Role
In the midst of competition and global trade highways, the increase in the quality of Indonesian lawyers has become one truth. The Indonesian Advocates Association has held frequent international seminars to equip its members with knowledge and knowledge regarding the development of business law.
Most recently, it was held in Medan, April 23 yesterday. This is in line with Peradi’s 2022-2022 mission, which is to realize the quality of legal services that are professional, fair and dignified. The chairman of Peradi’s DPN, Fauzie Yusuf Hasibuan, explained that advocate organizations have a major role in preparing Indonesian lawyers to enter the era of global competition that affects several legal services.
The first role is related to improving the quality of legal services provided by advocates. Confidence is the key to providing advocate services to clients. The more quality the service provided by the lawyer and the law firm, the happier the client.
One of the homework for advocate organizations that is still untouched in the latest developments in global business is to make tutorials on business and human rights. Referring to the tutorial made by the Human Rights Council of the Federation of Nations, the International Bar Association (IBA) has issued the IBA Practical Guide on Business and Human Rights for Business Lawyers.
This tutorial points out what to pay attention to and what some corporate advocates do when doing their due diligence.
