Paradigm of universalistic particularism to reform the Indonesian economic law in the framework of establishing the 2015 ASEAN Economic Community

• Author: TAUFIQURRAHMAN, PhD
• Position: Lecturer S.H., M. Hum.
• Pages: 22-55

Paradigm of universalistic particularism to reform

the Indonesian economic law in the framework of establishing

the 2015 ASEAN Economic Community

1

Lecturer S.H., M. Hum. TAUFIQURRAHMAN, PhD2

Abstract

A reality that ca nnot be denied that the laws of Indonesia a pplicable today,

especially regarding internationa l tra de tra nsactions, are less conducive to the changes.

This can be under stood beca use the law that in fact is a lega cy of the Dutch colonial

government has not been changed a t all, but the dynamics of the community continue to run

endlessly. Changes in society increasingly run quickly along with the p rogress achieved in

the field of Science and Technology, particula rly Information a nd Communication. Such an

objective conditions will in tur n lea d to new lega l issues in the co mmunity, na mely the

absence of law a nd the emergence of the legal ga p between what the law in book with what

the la w in action. The increa singly complex legal issues in r elated to be the establishment

of an ASEAN Econo mic Community (AEC) of 2015. The theor y used to a nalyze is the

Jeremy Bentham’s Legislation Theory and the Theory of Legal Development from Mochtar

Kusumaatmadja. While the research method applied is normative legal r esearch methods

with the statute, and conceptual approa ches. The analysis shows that the convergence

para digm namely universa listic par ticularism is appro priate u sed in law reform in

Indonesia. In addition, in or der to provide a clear direction of Indonesian economic la w

reform efforts in the context of the esta blishment of 2015 AEC, it is necessary to establish

the Indonesian Economic System in the nationa l legislation.

Keywords : Pa radigm, Par ticularism, Convergence, economic law, Indonesia.

JEL Classification: K20, K22, K33

1. Introduction

In to the results of the 9th Summit Association South East Asian Nations

(ASEAN) 2003 in Bali, the ASEAN Heads of State adopted the Declaration of

ASEAN Concord II, which approved the establishment of the ASEAN Community

in the frame of ASEAN Vision 2020, namely the ASEAN Political-Security

Community (APSC), ASEAN Economy Community (AEC) and the ASEAN

Socio-Culture Community (ASCC). Special AEC, the ASEAN Heads of State in

1 This article had been presented at the International Conference on Law, Policing and Justice held by

the World Academy of Science, Engineering and Technology in Paris – France on 29-30 August

2013.

2 S.H., M. Hum. Taufiqurrahman - Law Faculty of University of Wijaya Putra, Surabaya, Indonesia.

In addition, he is also an Advocate at th e TNA Law Office. He is active in some profession’s

organizations, namely Indonesian Bar Association and Indonesian Advocate Association of

Surabaya. Now, he takeholds of a member of the Honorary Board of the East Java Province

Indonesian Advocates Association.

Juridical Tribune Volume 4, Issue 1, June 2014 23

the 12th ASEAN Summit 2007 in Cebu, Manila agreed to speed up

implementation, the original 2020 to 2015.

This means that there is no longer the time shift within the next two years

the people of Indonesia and ASEAN member countries more integrated into one

large house named AEC. This in turn will result in an increase in the volume of

international trade, both performed by between the domestic consumers with the

foreign business actors, between the foreign consumers with the domestic business

actors, as well as between the foreign business actors with the domestic business

actors. As a result, the potential for legal disputes between the parties in

international trade transactions can not be avoided. In the settlement of a dispute,

the businesses of Indonesia is very open to the possibility of the injured party

against a decision rendered by a court or arbitration body because of the

determination of the applicable law refers to the force of foreign law.

Applicability of foreign law in international trade transactions in which one

party from Indonesia could be possible due to several circumstances: (1) both

parties have determined the choice of law clause that the foreign law as the

applicable law; (2) is based on application of the principles of International Private

Law (some of them are Lex Loci Contractus, Lex Loci Solutionis, The Proper Law

of the Contr act, The Most Char acteristic Connection, The Vested Rights, and The

Governmental Analysis) which refers to the foreign law; and (3) based on the

power of force of the United Nations Convention on Contra cts for the International

Sale of Goods (CISG) that accommodates the "opting-out" in the determination of

the applicable law as stipulated at Clause 6 of CISG as follows : "The Parties may

exclude the applica tion of this Convention or, subject to article 12, derogate from

or vary the effect of any of provisions". Whereas a clause of “sphere of application

and general provision” of the CISG is stipulated at Clause 1 of the Convention as

follows:

3

“(1) This Convention applies to contract of sale of goods between

parties whose place of business are in different states:

(a) when the States are Contracting States, or;

(b) when the rules of private international law lead to the

application of the law of a Contracting State.

(2) The fact that the parties have their places of business in different

States is to be disregarded whenever this fact does not appear

either from the contract or from any dealings between, or from

information disclosed by, the parties at any time before or at the

conclusion of the contract;

(3) Neither the nationality of the parties nor the civil or commercial

character of the parties or of the contract is to be taken into

consideration in determining the application of this Convention”.

3 See Taufiqurrahman, Karakter P ilihan Hukum, Kajian tenta ng Lingkup Penerapa n United Nations

Convention on Contracts Sale of Goods (CISG) 1980 (Cha racter of Law Choice, Study on

Application Scope of United Nations Convention on Contracts Sale of Goods [ CISG] 1980 ), PT.

Bayumedia, Malang, 2010, pp. 230-240.

24 Volume 4, Issue 1, June 2014 Juridical Tribune

With this approach, if the parties do not specify the rejection of the CISG

expressly in the contract is made, it automatically CSIG will serve as the applicable

law of the place of business where one party or both parties is a country that has

ratified the CISG or by the application of the principle of the principle of

International Law that refers to the enactment of the law of a country which has

ratified the CISG.

Especially for Indonesia, this establishment of the 2015 AEC should be

given serious consideration, both as regards to the quality of human resources,

quality of production and the quality of the law, particularly with regard to

international trade transactions. Reviewing to the existence of Indonesian laws in

economics and international trade transaction can not be delayed. This is

understandable because of the positive law of Indonesia, particularly relating to

commercial transactions, both domestic and international, is largely a legacy of the

Dutch government about 165 years old.

The existence of Indonesian economic law in the field of international

trade is considered to be not in accordance with the development and advancement

in the field of Information & Communication Technology (ICT). Especially with

the various model laws and international conventions in the field of international

trade generated by international organizations, the existence of the Indonesian

economic law in the field of international trade will be increasingly marginalized in

international trade traffic. Therefore, this is a quite naturally when the foreign

businessmen have a tendency to shy to choose Indonesian law because they feel

less comfortable when contracts are governed and construed in accordance with the

Indonesian law

4. The businessmen prefer to apply laws which they consider a more

neutral that can accommodate the interests of all parties in a transaction.

Indonesian economic law reform must be done conceptually. He is not just

patchwork and sporadic that only meet immediate needs, but actually based on the

reality and needs, both internal and external dimensions of the long-term oriented.

Therefore, the paradigm as a reference point in Indonesian economy law reform in

which it responds to the current development and challenges facing in future have a

very significant meaning.

Based on the objective conditions as described in previous, main issues

from this research are focused to seek the significance for Indonesia to reform its

economic law in the field of international trade in framework establishing the

2015 AEC and to analysis the Paradigm that can be used as a basis to perform it.

This type of research is a normative law research. While the approaches

used in this study are a statute approach and a conceptual approach.

1.1 Theory framework

Through his work entitled “Introduction to the Principles of Mora ls and

Legislation” (1780), Jeremy Bentham (1748-1832) introduced a theory about the

4 Erman Radjagukguk, "Hukum Kontrak Inter nasional dan Per dagangan Bebas (International

Contract Law and Free Trade)", "Journal of Business Law", vol. 2/1997, p. 27.