Contoh Kasus Arbitrase

Summary

Muhammad Yusuf discusses the case of Rafat Ali Rizvi versus the Republic of Indonesia, resolved through arbitration. The case revolves around Rafat, an investor from the UK, who filed a claim against Indonesia for damages due to the government's bailout of Bank Century, which impacted his investments. The arbitration tribunal, composed of international arbitrators, ruled against Rafat, emphasizing that his portfolio investment didn't qualify for legal protection under Indonesian law. The ruling also reinforced the requirement for proper approval from the Indonesian Investment Coordinating Board for investments to be protected.

Takeaways

• 📅 Rafat Ali Rizvi filed a lawsuit against the Republic of Indonesia on April 5, 2011, at ICSID, claiming investor protection violations.
• 🇬🇧 Rafat Ali Rizvi is a British investor, citing a 1977 bilateral agreement between the UK and Indonesia for the protection of foreign investments.
• 🏦 Rizvi invested in three Indonesian banks (Bank Pikko, PT Danpac, and PT Banks iicc) before they merged into Bank Century in 2004.
• 💸 The dispute arose when Indonesia provided a $6.7 trillion bailout to Bank Century, which Rizvi argued devalued his investments.
• 📜 Rizvi claimed protection under Indonesia's Foreign Investment Law (Law No. 1 of 1967), but Indonesia disputed the applicability of this law to his investments.
• ⚖️ The arbitration was conducted with three arbitrators, each side selecting one and a mutually agreed-upon chairperson for the tribunal.
• ❌ Indonesia challenged ICSID's jurisdiction, arguing that Rizvi's investments were not the type protected by their foreign investment laws.
• 🔍 The tribunal ultimately ruled in favor of Indonesia, stating that Rizvi's investment did not qualify for legal protection under Indonesian law.
• 💼 A dissenting opinion from one of the arbitrators, Professor Najah, acknowledged the tribunal's decision but offered differing legal reasoning.
• 🚫 Rizvi’s investment through Chinkara Capital was deemed an indirect investment, which did not qualify for legal protection under the bilateral investment treaty (BIT).

Q & A

What is the case discussed in the video?

The video discusses the arbitration case of Rafat Ali Rizvi versus the Republic of Indonesia. Rafat, a foreign investor from the UK, filed a claim against Indonesia over losses related to the government's bailout of Bank Century.

Why did Rafat Ali Rizvi file a case against Indonesia?

Rafat Ali Rizvi filed a case because he believed that the bailout of Bank Century by the Indonesian government caused him significant financial losses as a shareholder. He argued that his investment should have been protected under Indonesian law.

What was the basis of Rafat Ali Rizvi’s claim?

Rafat's claim was based on the violation of the 'Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Indonesia for the Promotion and Protection of Investment.' He argued that his investment in Bank Century was protected under this agreement and Indonesian laws governing foreign investment.

How did the Indonesian government respond to Rafat’s claim?

The Indonesian government argued that the investment made by Rafat was not covered under Indonesia’s foreign investment law, as it was not approved by the Indonesian Investment Coordinating Board (BKPM), and therefore, did not qualify for legal protection.

Who were the arbitrators in this case?

Rafat Ali Rizvi appointed Judge Juan Fernandez-Armesto from the United States, and Indonesia appointed Professor Lowe from Australia. The two parties agreed on Dr. Gavan Griffith from Australia to serve as the presiding arbitrator.

What was the final decision of the ICSID tribunal?

The ICSID tribunal ruled in favor of the Indonesian government, agreeing that Rafat's investment was not protected under the laws of Indonesia since it was a portfolio investment and not a direct investment, and it lacked approval from BKPM.

What were the key legal issues raised during the arbitration process?

The key legal issues were whether Rafat's investment qualified as a protected investment under Indonesian law and the bilateral investment treaty, and whether ICSID had jurisdiction over the dispute.

What did Professor Najah’s dissenting opinion state?

Professor Najah agreed with the tribunal’s ruling but offered a different legal reasoning. He argued that there was no special procedure for granting approval for portfolio investments and that the investment was indirect, and thus not protected under the BIT agreement.

What lessons can be drawn from this case regarding foreign investment protection in Indonesia?

The case highlights that for foreign investments to receive legal protection in Indonesia, they must be direct investments approved by the BKPM. Portfolio investments or investments without BKPM approval do not qualify for protection under Indonesian law.

What was the significance of the tribunal’s ruling in this case?

The ruling clarified the legal distinction between direct and portfolio investments under Indonesian law and reinforced the requirement for foreign investments to obtain proper approval from local authorities to receive legal protection.