On 20 February 2018, the Supreme Court along with Ministry of Foreign Affairs (Kementerian Luar Negeri / “MoFA“) signed Memorandum of Understanding No. PRJ/HI/102/02/2018/01, No. 01/NK/MA/2/2018 (the “MoU“) which renews the prior existing MoU concerning Judicial Assistance in Civil Matters dated 19 February 2013. The renewal of such MoU is important due to the increasing number of requests from Indonesian courts to send court documents in civil matters (i.e, court summons, notice of decision) to foreign courts and vice versa. Points from the MoU that are worth noting are as follows:
Although the new MoU provides clear guidelines regarding the mechanism to send court summons and document requests, parties to a dispute should still be aware of remaining loopholes.
Prior to the MoU, parties were required to attach official English translations of the documents, whereas the new MoU requires use of a standardized letter for the parties in bilingual form. However, is important to note that recipient countries often have their own regulations regarding the format of judicial assistance requests. Therefore, parties to a dispute need to consider not only the Indonesian regulations, but also the regulations of the recipient country in order to ensure document delivery. For example, the Netherlands requires documents to include an official English translation, whereas Japan requires the letter and documents to include the Japanese language translation. Further, Switzerland requires the document to be translated to one of the Swiss official languages such as French, German, Italian or Romansh, depending on the domicile of the citizen or legal entity.
In some recipient countries, failure to translate the documents would cause the documents to be denied and returned to the requesting country. In 2014, Japan returned several letter and document requests to MoFA because they were not translated into Japanese. Accordingly, a disputing party should undertake an analysis of the requirements of the receiving country or seek our assistance in determining the requirements of the recipient country.
Another loophole concerns the uncertainty regarding the time limit of judicial assistance in civil matters. According to Supreme Court Circular Letter No. 2 of 2014, ongoing court proceedings in the first instance should be decided by the judges within five months. Thus, uncertainty concerning the time limit may prolong the ongoing court proceedings. However, with the help of Rom Website technology, parties will be updated in real time regarding the status of the document request.
AHP Client Alert is a publication of Assegaf Hamzah & Partners. It brings an overview of selected Indonesian laws and regulations to the attention of clients but is not intended to be viewed or relied upon as legal advice. Clients should seek advice of qualified Indonesian legal practitioners with respect to the precise effect of the laws and regulations referred to in AHP Client Alert. Whilst care has been taken in the preparation of AHP Client Alert, no warranty is given as to the accuracy of the information it contains and no liability is accepted for any statement, opinion, error or omission.