The Tribunal’s Power of Attorney to register an arbitral award in Indonesia
Authors：Dimitrios Katsikis，Anthony Cheah Nicholls
[The views and opinions expressed are those of the authors and do not necessarily reflect the official policy or position of BAIAC]
Indonesian law requires that arbitral awards must first be registered with the Indonesian courts before enforcement proceedings can commence. Crucially however, responsibility for registration lies with the arbitral tribunal, not the parties. If the tribunal does not undertake certain steps before it becomes functus officio, a party can find itself with a valid award that cannot be enforced in Indonesia.
In light of the practical significance of observing the registration requirement under Indonesian law, this article explores the registration requirement and discusses steps that parties cantake to ensure that registration proceeds smoothly.
Articles 59(1) and 67(1) of Indonesia’s Law No. 30 of 1999 (the “Arbitration Law”) require that an arbitral tribunal “or its proxy” must submit an award for registration with the Indonesian courts before the award can be recognized and enforced. Registration is therefore a necessary step towards enforcement in both domestic and international arbitrations i.e. regardless of whether the seat of the arbitrationis in Indonesia or elsewhere.
Articles 59(1) and 67(1) ofthe Arbitration Law allow the tribunal to undertake the registration process itself. However, it is generally not advisable to leavethe tribunal to adopt this “Do-It-Yourself” option.
《仲裁法》第59(1)条和第67(1)条允许仲裁庭的自行登记。不过，一般不宜让仲裁庭采用此种“自行” (DIY) 的办法。
First, although experienced tribunals may know that they must complete registration for the award to be enforceable in Indonesia, not every tribunal will have this experience. If the arbitral tribunal is unaware of the registration requirement, and if the administering institution (assuming there is one) fails to inform the tribunal, parties risk receiving an award which is impossible to enforce in Indonesia. Once the tribunal becomes functus officio, it will be too late for registration and, at least on the face of Articles 59(1) and 67(1) of the Arbitration Law, an administering institution cannot request the registration of the award.
Second, the registration process involves a certain degree of preparation that should not be underestimated. Many arbitrators may not have the time or energy to devote to the registration process and, even if they do, may commit errors during the process that could affect the enforceability of the award.
Third, precisely due to the various steps involved, the process is time-consuming. For domestic arbitrations, Article 59(1) of the Arbitration Law provides clearly that registration must be commenced within 30 days of an award’s issuance. There is therefore a risk that the tribunal fails to meet the prescribed deadline, leading to an unenforceable award, although some institutions in Indonesia such as BANI are familiar with the requirement of Indonesian law, and will apply for registration on behalf of the tribunal. Whilst the risk of failing to meet the deadline does not arise in the context of international arbitrations since there is no time limit for registration, there is value in completing the registration process quickly: a party that has prevailed in the arbitration and wishes to proceed to enforcement is unlikely to want to spend additional time waiting for the arbitral tribunal to complete all of the afore-mentioned steps.
第三，正是由于涉及各种步骤，登记过程才相当耗时。《仲裁法》第59(1)条明确规定，国内仲裁必须在裁决签发后30天内开始登记。因此，尽管印度尼西亚国家仲裁委员会 (BANI) 等一些熟悉印度尼西亚法律要求的机构会代表仲裁庭申请登记，但仍可能出现仲裁庭未能在规定的期限内完成登记，继而导致裁决无法执行的情况。虽然针对国际仲裁中未设登记期限，因此不存在逾期风险，但最好尽快完成登记：因为仲裁中获胜的一方希望尽快执行，可能并不愿意再多花时间等待仲裁庭完成上述所有步骤。
For these reasons, instead of this DIY approach, where the tribunal registers the award itself, a better approach may be to ask the tribunal during proceedings to grant a Power-of-Attorney (“POA”) to counsel, so that counsel can carry out the registration on behalf of the tribunal. This is permitted by Articles 59(1) and 67(1), both of which expressly envisage that registration may be done by the arbitrators or by “his/her/its proxy”.
因此，在仲裁过程中要求仲裁庭向律师授予授权委托书 (“POA”)，委托律师代表仲裁庭进行登记，可能比由仲裁庭自行登记裁决 (“DIY”) 更好。第59(1)条和第67(1)条都明确规定，登记可由仲裁员或“其代理人”进行。
2. Key aspects of the POA
a) Who grants the POA?
The tribunal as a collective grants the POA, though individual tribunal members can sign on separate copies.This can be useful if not all the tribunal members are in the same country. There is no requirement for tribunal members to sign the POA at the arbitration’s seat although tribunal members do so as a matter of practice.
Tribunal members must sign before a notary at the place of signature. If the place of signature is not Indonesia, then the signed and notarised POA must also be legalised. Legalisation can be done by the embassy of the Republic of Indonesia in the country (or countries) where the POA is signed.
Drafting tips The POA should state the names of the tribunal members, list their professional addresses and refer to them collectively as the “Grantors”. The POA should also mention the parties, the arbitral seat, the type of arbitration that gave rise to the award (e.g., ICC, BANI, ad hoc, etc.), the arbitration’s institutional registration number (if applicable) and the date of the award. It is also prudent for the tribunal members to attach their letter of appointment from the administering arbitral institution (if applicable).
起草注意事项授权委托书中应写明仲裁庭成员的姓名，列出他们的办公地址，并将他们统称为“委托人” (Grantors)。授权委托书中还应提及当事人、仲裁地、裁决的仲裁类型 (如国际商会仲裁、BANI仲裁、临时仲裁等)、仲裁机构注册号码(如适用)和裁决日期。谨慎起见，仲裁庭成员会附上仲裁管理机构的任命书(如适用)。
b) To whom is the POA granted?
It is advisable for the POA to be granted to Indonesian counsel. Notably, there is no restriction against granting the POA to Indonesian counsel that has represented one of the parties during the arbitration. This can prove useful as the registration process will be carried out by counsel that is familiar with the case.
Whilst Articles 59(1) and 67(1) do not expressly prevent the tribunal from granting a POA to international counsel, appointing Indonesian counsel is preferable. Enforcement proceedings must ultimately be undertaken by local counsel and there is a risk that the District Court might not accept the registration of an award submitted by international counsel.
Drafting tipsThe POA should state the names, professional address and organisation of the specific individuals to whom the POA is granted. These individuals should be collectively referred to as the “Attorney(s)”. It is prudent to provide that the “Attorney(s)” have the power to appoint another person to carry out any acts that may be necessary for the registration of the award in case they become unable to do so themselves. This point is discussed in greater detail below.
c) What actions should the POA empower the Attorneys to perform?
The objective of a POA is to empower the Attorneys to register the award with the Registrar of the District Court. It is therefore useful to frame the actions that the Attorneys are authorised to perform in broad terms, so as to capture all the steps necessary to carry out registration. The POA should ensure that the Attorneys are authorised to approach the Registrar of the District Court, and to prepare, execute and submit all necessary documents required for the registration of the arbitral award.
In addition to all-inclusive language, the party drafting the POA may wish to set out a non-exhaustive list in order to remove any doubt about whether the Attorneys have authority to carry out a particular action on behalf of the tribunal.
Drafting tipsIn addition to considering carefully what actions the POA should authorize the Attorneys to do, parties should consider whether the POA will beof a “general” or “specific” nature. The distinction stems from Article 1795 of the Indonesian Civil Code, which explains that a general POA enables the grantee to act with respect to all of the grantor’s interests, whereas a specific POA allows the grantee to only act with respect to one or more of the interests specified in the POA. Articles 59(1) and 67(1) of the Arbitration Law do not expressly state whether a tribunal issued POA must be general or specific. However, given that Indonesian counsel’s only mandate from the tribunal is to register the award – a specific task – the POA should indicate that it is specific.
起草注意事项除了应仔细考虑授权委托书中应授予代理人的各项权利外，双方当事人还应考虑授权委托书的性质是“一般授权”还是“特别授权”。《印度尼西亚民法典》第1795条规定，一般授权委托书中，被委托人 (grantee) 有权为了委托人的所有利益而展开行动，而特别授权委托书仅允许被委托人执行一项或多项在授权委托书中特别规定的事项。《仲裁法》第59(1)条和第67(1)条没有明确规定仲裁庭发布的授权委托书必须是一般性授权还是特别授权。但鉴于仲裁庭仅委托印度尼西亚律师进行裁决登记这一特定任务，因此，授权委托书应表明其为特别授权。
d) The rights of retention and substitution
A common feature of POAs inIndonesia are the rights of retention and substitution.
The right of retention stems from Article 1812 of the Indonesian Civil Code. Pursuant to the right of retention, Attorneys authorised by the POA may with hold certain objects (such as original documents) which belong to the grantor of the POA if the grantor does not compensate the Attorneys. In this case, the grantor of the POA will be the arbitral tribunal. In practice, however, if the tribunal grants a POA in favour of a party’s Indonesian counsel, it is that party which will shoulder the cost of registration. It is therefore unlikely that the Attorneys will withhold documents, since they will be compensated by the enforcing party. The right of retention is therefore unlikely to be of much practical use. Nonetheless, Indonesian counsel will typically request that the right of retention be expressly mentioned in the POA to emphasise their ability to retain documents if the enforcing party does not compensate them. The grantor of the POA (here, the arbitral tribunal) can decide to opt out of granting the Attorneys aright of retention under the POA, by stating so expressly in the POA.
The right of substitution arises from Article 1803 of the Indonesian Civil Code. It allows Attorneys to delegate powers granted in the POA to others so that the actions under the POA can be carried out even if the Attorneys listed therein are unable to do so. Unless the POA provides for the right of substitution, an argument could be made that the Attorneys listed in the POA cannot delegate their mandate to another person, on the basis of Article 1797 of the Indonesian Civil Code, which provides that “A mandatary is not to do anything which is outside the scope of his authority”. To avoid this potential argument, it is helpful to expressly provide for the right of substitution in the POA. As with the right of retention, the grantor can decide to opt out of the right of substitution, by stating so expressly in the POA.
Drafting tipsThe POA should state expressly that it is granted to the Attorneys with the right of substitution. The POA can also state that it is granted with the right of retention.
3. Are there any signingformalities?
Signing by the tribunal: Tribunal members must sign the POA before a notary. If signing takes place in Indonesia before an Indonesian notary, no other steps are necessary. If the POA is signed overseas however, the POA must be notarised by a notary and then be legalised at the Indonesian embassy in the country where the POA is signed.
In practice, different Indonesian embassies have different requirements for legalising a POA. For example, some embassies will require that the POA be notarised by a notary who is formally registered with the embassy, before they legalise the POA. Counsel should therefore check with the relevant Indonesian embassy in advance and notify the tribunal of the embassy’s requirements.
Signing by the Attorneys: The Attorneys authorised to register the award through the POA do not need to sign the POA on the same occasion as the arbitral tribunal. They can sign at any time before the POA is submitted to the Registrar of the District Court. There is no need for the Attorneys’ signatures to be notarised.
Language of the POA: If one or more of the parties involved in the granting of the POA are Indonesian companies or individuals, which will be the case if the POA is granted to Indonesian (as opposed to international) counsel, then the POA must be in Bahasa Indonesia.
Registration of the arbitral award is a necessary step, but not necessarily a simple one. Parties should be alert that it is the arbitral tribunal, or its proxy, that must submit an award for registration. To meet this requirement, Parties should consider alleviating the tribunal of the responsibility, and considerable burden, that the registration process entails. We hope that the present contribution offers parties a reasonably clear map of how they can do so, allowing them to take control of the necessary first step in the process of enforcing their award in Indonesia.
 An English translation is available at the following website: http://bphn.go.id/data/documents/arbitrationindonesia.pdf)
 Article 59(1) requires that domestic awards be issued within 30 days of issuance. Article 67(1) does not put any time limits for international awards.
 See Article 31 of Indonesian Law No 24 of 2009 Concerning the National Flag, Language, Emblem, and Anthem.
作者简介 About the authors
Anthony Cheah Nicholls