scholarly journals TARIK ULUR KOMPETENSI ABSOLUT LEMBAGA ARBITRASE (Kajian Terhadap Prinsip Niet van Openbaar Orde dan Pacta Sunt Servanda Dalam Klausul Arbitrase)

2018 ◽  
Vol 9 (2) ◽  
Author(s):  
Ayu Atika Dewi
Keyword(s):  
Legal System ◽  
Dispute Settlement ◽  
Legal Norm ◽  
Duality Principle ◽  
Legal Certainty ◽  
Arbitration Clause ◽  
The Absolute

Arbitration is an institution of dispute settlement based on arbitration agreements. An arbitration agreement may be an arbitration clause incorporated by a standing agreement or an arbitral agreement independent of its principal agreement. Based on the arbitration agreement, there are two principles named Niet van Openbaar Order and Pacta Sunt Servanda. Based on the principle of the arbitration clause of the Niet van Openbaar Order, the arbitration clause does not necessarily provide the competence of the arbitration body to resolve the dispute under arbitration agreements. Instead the principle of clause is Pacta Sunt Servanda provides absolute competence for the arbitration body to resolve the dispute. The existence of these two principles leads to a lack of interpretation of the absolute competence of arbitration among law practitioners. This study aims to find out how exactly the competence of arbitration institutions in settling disputes that have been bound arbitration agreement is based on the duality principle of Niet van Openbaar Order and Pacta Sunt Servanda arbitration clause in Indonesian law. The results of the study explained that the legislation in the legal system of Indonesia as stipulated in Law no. 30 of 1999 has expressly stated that absolute competence for arbitration institution as the institution of dispute settlement which is bound by arbitration agreement. Therefore, the legal practitioners should return to the legal norm in order not to happen again the tug of competence to adjudicate disputes between the arbitration institution and the court institution. With this it is expected that the legal certainty in the arbitration order can be enforced.

Competitive Jurisdictions of Local Administration Authorities and Notaries for the Certification Purposes in Montenegro

2021 ◽  
Vol 19 (3) ◽  
pp. 439-459
Author(s):  
Velibor Korać
Keyword(s):  
Legal System ◽  
Public Interest ◽  
Local Administration ◽  
Legal Certainty ◽  
Public Authorities ◽  
Political Reason

With the adoption of the new Law on Certification of Signatures, Manuscripts and Transcripts the Montenegrin legislator did not take into account the fact of introducing the notary services into the legal system of Montenegro. Unlike most of the comparative legislations, certification of signatures, transcripts and manuscripts have not been transferred to the exclusive competence of notaries, but a competitive competence of notaries, local administration authorities and the courts in carrying out these assignments has been retained. Further retention of competitive jurisdiction in this matter is not justified any more. The analysis of this decision has shown that it leads to an unequal position, depending on the authority before which the certification is performed, whereas the obligations and professional competences of officials and notaries are different. Notarial certifications contribute to greater legal certainty and besides are more available to the citizens and not more expensive. Parallel jurisdiction is not a standard of notarial services in European continental law which has adopted the Latin model of notary as a independent profession having public authorities. This solution does not lead to building a legal certainty, protection of public interest and relieving the work of courts and administrative authorities, which has been the underlying legal political reason for introducing notariat.

scholarly journals Zdatność arbitrażowa sporów uchwałowych w wybranych zagranicznych porządkach prawnych

2017 ◽  
Vol 21 ◽  
pp. 79-102
Author(s):  
Justyna Glinka ◽  
Łukasz Chyla
Keyword(s):  
Legal System ◽  
Comparative Perspective ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Arbitration Clause ◽  
Main Emphasis ◽  
Near Future ◽  
Legal Barriers

The aim of the article is to present one of the greatest controversy of international commercial arbitration, which is an objective arbitrability of corporate disputes. The article presents the comparative perspective on arbitrability in certain jurisdictions as well as legal barriers that prevent some corporate disputes from being fully subjected to arbitration proceedings by the parties by an arbitration clause. Thorough analysis helps to identify the Polish approach amid international ones and propose certain solutions to challenges faced by Polish legislator. Due to all the similarities, the main emphasis is put on the analysis of German legal system, which can thus be used by Polish doctrine and judicature to successfully overcome some of the respective obstacles to be faced in the near future.

PERLINDUNGAN HUKUM BAGI PARA PIHAK YANG TERLIBAT DALAM PERJANJIAN PADA PLATFORM LOAN-BASED CROWDFUNDING

2019 ◽  
Vol 7 (2) ◽  
pp. 181
Author(s):  
Chartilia Gendis Napinillit M. ◽  
Anjar Sri Ciptorukmi
Keyword(s):  
Dispute Settlement ◽  
Legal Protection ◽  
Legal Rights ◽  
Legal Action ◽  
Legal Certainty ◽  
Important Thing ◽  
Legal Relationship ◽  
The Law ◽  
Legal Consequences ◽  
Laws And Regulations

<p>This article aims to analyze and know the law protection provided to parties involved in the agreement through the loan-based crowdfunding platform. The legal protection granted to the parties is contained within the agreement itself, namely within the clause of the clause agreed upon by the parties, and there is also an out of the agreement, that is, in the provisions of current laws and regulations. Law protection is an important thing to guarantee the fulfillment of the legal rights of a person. In addition to these objectives, law protection is provided to bring about legal certainty, legal benefit, and justice for the parties. Law protection can be preventive (prevent) or repressive (fix). The agreed agreement on the loan-based crowdfunding platform creates a legal relationship between the two parties of the manufacturer.  Legal Relationship is a relationship that gives rise to the consequences of a law guaranteed by law or law. Any legal action that raises legal consequences on a loan-based crowdfunding platform should have legal protection, especially when there is a dispute between the<br />parties. Peaceful forums or through deliberations can not be guaranteed to resolve existing disputes, therefore legal protection is required to provide a solution and clarity of existing dispute settlement or potentially occurring after the agreement is agreed.</p><p>Keywords: Law Protection, Agreement, Loan-based crowdfunding, .</p><p>Abstrak<br />Artikel ini bertujuan untuk menganalisis dan mengetahui perlindungan hukum yang diberikan bagi para pihak yang terlibat didalam perjanjian melaui platform loan-based crowdfunding. Perlindungan hukum yang diberikan bagi para pihak terdapat didalam perjanjian itu sendiri, yaitu didalam klausula klausula yang telah disepakati para pihak, dan terdapat juga diluar perjanjian, yaitu didalam ketentuan peraturan perundang-undangan yang berlaku saat ini. Perlindungan hukum merupakan suatu hal yang penting untuk menjamin terpenuhinya hak hak hukum dari seseorang. Selain tujuan tersebut, perlindungan hukum yang diberikan guna mewujudkan kepastian hukum, kemanfaatan hukum, dan keadilan bagi para pihak. Perlindungan hukum yang diberikan dapat bersifat preventif (mencegah) atau represif (memperbaiki).  Perjanjian yang disepakati pada platform loan-based crowdfunding menimbulkan suatu hubungan Hukum antara dua pihak pembuatnya. Hubungan Hukum yaitu hubungan yang menimbulkan akibat Hukum yang dijamin oleh Hukum atau Undang-Undang. Setiap perbuatan hukum yang memunculkan akibat hukum pada platform loan-based crowdfunding harus memiliki perlindungan hukum, terlebih disaat terjadi suatu sengketa antar pihak. Forum damai atau melalui cara musyawarah belum dapat menjadi jaminan akan terselesaikannya sengketa yang ada, maka dari itu perlindungan hukum diperlukan untuk  memberi solusi dan kejelasan akan penyelesaian sengketa yang ada atau yang berpotensi terjadi pasca perjanjian disepakati.</p><p>Kata Kunci: Perlindungan Hukum, Perjanjian, Loan based crowdfunding.</p>

scholarly journals THE EVALUATION OF SURROGACY’S LEGAL SYSTEM IN INDONESIA AS COMPARISON TO INDIA’S LEGISLATION

2019 ◽  
Vol 4 (2) ◽  
pp. 167
Author(s):  
Mega Dewi Ambarwati ◽  
Ghina Azmita Kamila
Keyword(s):  
Legal System ◽  
Research Methodology ◽  
Functional Method ◽  
Scientific Field ◽  
Legal Certainty ◽  
Legal Research ◽  
Surrogate Mother

Nowadays, in marriage life, spouse often dealing with big problem as like infertility which make them unable to have offspring. However, due to infertility, the spouse has obtained some efforts to solve their problems. One way to solve the problem is by obtaining surrogacy with the help of surrogate mother. Nevertheless, in Indonesia, especially, surrogacy as well as surrogate mother is still considered to be taboo things and no legal system which regulate the surrogacy and/or surrogate mother. Yet other countries have allowed or legalize the surrogacy practice as well as surrogate mother. Hence, this study aimed to reveal a comparison of legal system on surrogate mother and surrogacy law in Indonesia and India. This study used comparative legal research methodology through the functional method since Indonesia has the same function over the purpose of law establishment on the surrogate mother in India. The result reveals that it needs a legal system on surrogacy and surrogate mother as the legal certainty for any individual especially spouse who could not have offspring along with some reasons such as minimalize prostitution and unregistered marriage, prevent dispute, and to develop scientific field.

Jerzy Wróblewski’s Legal Theory and His Influence on Humanist Legal Thought

2020 ◽  
Vol 45 (2-3) ◽  
pp. 200-216
Author(s):  
Marek Zirk-Sadowski
Keyword(s):  
System Theory ◽  
Legal System ◽  
Legal Theory ◽  
Analytical Theory ◽  
Legal Norm ◽  
Legal Interpretation ◽  
Legal Philosopher ◽  
Application Of Law ◽  
Theory Of Law ◽  
Law Making

This paper presents Jerzy Wróblewski’s (1926–1990) theory of law. He was an eminent Polish legal philosopher. His philosophical minimalism, anticognitivism, relativism and moderate reconstructivism constitute the basis for analytical theory of law in Poland. He was developing his theory of law over the span of several dozens of years but the assumptions were formulated already in his first work on legal interpretation published in 1959. His paradigm of legal theory includes several areas: the theory of the legal norm, theory of legal interpretation, theory of the legal system, theory of application of law, theory of law-making and the methodology of legal sciences.

The Effect of Foreign Law on the Law of Israel: Remnants of the Ottoman Period

1975 ◽  
Vol 10 (2) ◽  
pp. 192-206 ◽  
Author(s):  
Daniel Friedmann
Keyword(s):  
Legal System ◽  
Case Law ◽  
Legal Norm ◽  
Legal Systems ◽  
Historical Source ◽  
Foreign Law ◽  
Local Law ◽  
The Law

This series of articles is intended to deal with one aspect of the sources of Israel law, namely the influence of foreign legal systems and principles derived therefrom on Israel law and on the attempt in recent years to independent creation of local law.Foreign law constitutes on occasion an actual legal source for the law of Israel. This occurs when a local enactment refers to foreign law and makes it applicable in certain situations. In such case the foreign law which we are to apply constitutes an obligatory legal norm in Israel and is, in fact, part of the Israel legal system. In other cases foreign law influences the process of creation of local law but does not constitute a formal source of law in the Israel system. This happens, for example, when Israel case law relies for authority upon some rule established in an American decision (which is, of course, not binding in Israel) or when the Israel legislator is influenced by a principle of law derived from another legal system. We might say there that the foreign law is an historical source for the Israel rule.

On Environmental Dispute Settlement Mechanisms in China

2012 ◽  
Vol 524-527 ◽  
pp. 3416-3419
Author(s):  
Zhong Lin Xu ◽  
Jin Hua Song
Keyword(s):  
Legal System ◽  
Dispute Settlement ◽  
Status Quo ◽  
Environmental Dispute ◽  
The Status ◽  
Dispute Settlement Mechanisms

This paper explores the environmental dispute settlement mechanisms (EDSM) in China. By the analysis of China's legal system concerned and the status quo of EDSM, it can be concluded that this mechanisms include reconciliation, mediation, administrative handling, arbitration and litigation.

scholarly journals Kompetensi Pengadilan Tata Usaha Negara dalam Menyelesaikan Kasus Tanah tentang Hak Pengelolaan

2017 ◽  
Vol 5 (2) ◽  
pp. 108
Author(s):  
Rafiqi Rafiqi
Keyword(s):  
Legal System ◽  
Legal Certainty ◽  
Rights Management ◽  
The Law ◽  
The Right ◽  
Civil Trial ◽  
Civil Courts

<p><em>The Law of Execution in the Administrative Court is different from the law of execution in civil courts. The civil trial of execution law is supplemented by physical means, namely: Jita Sita, aid of State Instruments (Police) and so on, which can force fiction so that the losers obey the court's decision. In the Administrative Court it is not possible, the Administrative Court is only equipped with administrative facilities only, in accordance with its authority which only judges in terms of administrative legality (administrative court). Rights Management issued a letter of proof of rights in the form of a certificate of Right of Management by the Land Office. The management rights are the right to land. The purpose of legal certainty itself will be fulfilled if if a device or legal system that can run and support the achievement of a legal kepolisia, especially the role of institutions that are authorized</em></p>

scholarly journals Penyelesaian Sengketa Para Pihak di Bidang Bisnis melalui Arbitrase

to-ra ◽  
2016 ◽  
Vol 2 (1) ◽  
pp. 305
Author(s):  
Nurdin Siregar ◽  
Radisman Saragih
Keyword(s):  
Everyday Life ◽  
The Other ◽  
Legal Certainty ◽  
The Public ◽  
The Core ◽  
Arbitration Clause ◽  
Good For ◽  
The Law ◽  
Core Issues ◽  
Made In

Arbitration is a way of solving civil disputes outside the public courts based the arbitration agreement made in writing by the parties to the dispute. The arbitration agreement is an agreement in the form of the arbitration clause contained in a written agreement made by the parties before a dispute arises or a separate arbitration agreement made by the parties after a dispute arises. In everyday life with various activities of members of today’s society, immense possibility of friction-friction in running business and trade that ended with disputes between members of the public and businesses. In efforts to completion, it would seem that this form of dispute diversity define the core issues then this diversity will be easy settlement with the provisions and rules of law that are sure to be able to look for the solution either arbitration or by mediation, consulting, negotiations, konsialiasi. The arbitration decision will be implemented after the verdict copy officially registered, but the arbitration ruling in accordance with the provisions of the law Arbitration can still be filed annulment if the decision is thought to contain elements, letters or documents are filed in the examination after the verdict recognized dinyataakan counterfeit or fake, after adjudication documents found prescriptive, which is hidden by the other party or the decision taken on the results of a ruse conducted by one of the parties in the dispute. That for legal certainty associated with the judiciary also good for the winning side and the decision is legally binding.   Kata Kunci: Penyelesaian sengketa bisnis melalui arbitrase  

scholarly journals Dictum on Dicta: Obiter Dicta in WTO Disputes

2018 ◽  
Vol 17 (3) ◽  
pp. 509-533 ◽  
Author(s):  
HENRY GAO
Keyword(s):  
Legal System ◽  
Dispute Settlement ◽  
Common Law ◽  
The United States ◽  
Legal Issue ◽  
Recent Attempt ◽  
Stare Decisis ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The Us

AbstractThis paper discusses an important legal issue raised by the United States in its recent attempt to block the reappointment of an Appellate Body member. According to the US, in some of his decisions, the member has made overreaching findings that amount to obiter dicta. As obiter dictum is a unique concept in the Common Law system, the US argument may only stand if the concept may be found in the WTO legal system as well. With a careful analysis of the concept of dicta in Common Law and a close examination of the effects of past panel and Appellate Body decisions in WTO dispute settlement, the paper rejects the US argument by refuting each of the three premises of the US argument, i.e., the WTO legal system based on Common Law; WTO follows stare decisis; and the WTO has rules against dicta. In addition to original contributions on the nature of the WTO dispute settlement system in theory, the article also provides some practical advice on how the controversy may be resolved.

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