B&A News Brief – The Procedural Of Service Of Foreign Court Process In Indonesia And Indonesian Court Process Abroad

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The expansion of international trade has led to the growing number of cross-border disputes. To help address issues relating to the service of judicial and extrajudicial documents on parties in situ in another jurisdiction, some states signed up to the Hague Convention 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Indonesia, however, is not a party to the Convention nor to any other convention relating to the service of foreign process (other than a bilateral agreement with Thailand). There is also no national legislation regulating the matter in the country.

On 19 February 2013, amid the increasing number of requests for judicial assistance in civil matters between foreign and Indonesian courts, the Indonesian Ministry of Foreign Affairs (“MOFA”) and the Indonesian Supreme Court (“SC”) introduced Memorandum of Understanding No. 162/PAN/HK.00/II/2013 No. NK/HI/01/02/2013/58 (the “MoU”). The MoU provides guidelines for the handling of a letter rogatory, as well as guidelines for requests for assistance for service of documents in civil proceedings. The guidelines are summarized below.

1.    LETTER ROGATORY

The MoU defines a letter rogatory as a formal letter from a foreign court to an Indonesian court and vice versa, requesting assistance in civil matters relating (but not limited) to the location or identification of persons, assets or properties, the obtaining of witness testimony, the obtaining of documents or other evidence, and the implementation of civil process.

 Procedure

 The MoU provides that:

  • 1.  A letter rogatory from a foreign court must be submitted through a diplomatic representative of the   
  •      requesting country who is situated in Indonesia.
  • 2.  The letter must be in English or the language of the requesting country (accompanied by official
  •      translations in English and Bahasa Indonesia).
  • 3.  The letter must include information on the following:
  • –   the identity of the Court making the request;
  • –   the institution which is authorized to receive the outcome of the request;
  • –   the government official in Jakarta who is authorized to follow up the request;
  • –   the names and addresses of the disputing parties and their proxies (the plaintiff(s) and the 
  •     defendant(s));
  • –   an explanation of the dispute;
  • –   the nature of any search/inspection required to be undertaken;
  • –   the names and addresses of any witness to be called and examined;
  • –   the questions to be addressed and matters to be explained by any witness;
  • –   the documents or objects to be examined;
  • –   the requirements for any witness to give testimony under oath or ordinary queries and, if
  •     needed, the enunciation of the spoken oath;
  • –   details which will enable the assistance requested to be performed (e.g. in the case of service
  •     of summons
  •     against a person/company, the name and address of the person/company to be served with
  •     the summons and the date by which the summons is to be served), as well as the details (e.g. the name
  •     and address) of the (local) institution or official required to perform the assistance requested;
  • –   the details of any taxes and fees to be reasonably refunded; and
  • –   the date of the request.
  •  
  • 4.  The letter must be signed by a duly authorized representative of the requesting court and affixed with
  •      the court’s stamp.

A letter rogatory that meets the above requirements will be sent by MOFA to the SC within seven (7) working days of receipt. The SC will assign the authorized court to effect the letter rogatory. The SC will report the implementation of the letter rogatory to MOFA which will then convey this information to the diplomatic representative of the requesting country.

The above procedures and requirements also apply mutatis mutandis for any letter rogatory from Indonesian courts.

2.    REQUEST FOR ASSISTANCE FOR THE SERVICE OF DOCUMENTS IN CIVIL MATTERS

The MoU also provides guidelines for the service of civil claims documents, court summons for civil proceedings, court summons for witnesses, court decisions or decrees, letters, deeds, and other documents relating to civil matters, from foreign courts on Indonesian citizens and/or Indonesian entities residing in Indonesia, and vice versa.

MOFA will forward to the SC for action, any request from a foreign court to assist with the service of documents. Once service is completed, the SC will send the receipt of service to MOFA which will then pass it on to the diplomatic representative in Indonesia of the country where the requesting court sits.

An area where the MoU could provide more clarity is the timeframe for the SC to process letter rogatory and requests for assistance. The MoU suggests that processes are to be detailed under SC regulations. As at the date of this article, these regulations have yet to be issued.

It is noteworthy that the MoU is not law in Indonesia and therefore does not preclude foreign parties from using private services for the service of court documents in Indonesia, to the extent it is allowed under the law of the foreign parties’ jurisdiction.

 

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For further information, please contact: lawyers@budidjaja.com.

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