At a glance: energy disputes procedure in Indonesia

Commercial/civil law – procedural

How do courts in your jurisdiction resolve competing clauses in multiple contracts relating to a single transaction, lease, licence or concession, with respect to choice of forum, choice of law or mode of dispute resolution?

There is no specific procedure to resolve competing clauses in multiple contracts relating to a single transaction, lease, licence or concession because each court may determine their own assessment and decision based on the submissions made by the parties to the dispute. However, judges will primarily refer to the Indonesian Civil Procedural Law to assess whether the dispute of the relevant contract falls under their competence or jurisdiction. Unlike the common law system, judges are not bound by past court precedent and, therefore, there will be a case-by-case approach applied by the judges.

Are stepped and split dispute clauses common? Are they enforceable under the law of your jurisdiction?

Stepped dispute resolution clauses are common in Indonesia. This type of dispute resolution clause is enforceable in Indonesia. If a civil dispute is administered in the District Court, court annexed mediation is mandatory. On the other hand, split dispute resolution clauses are not common but there is no express prohibition under the statutory regulation.

How is expert evidence used in your courts? What are the rules on engagement and use of experts?

Parties are free to present expert evidence to support their arguments. Under the Civil Procedural Law, expert testimony is not recognises as a form of statutory evidence unlike in specific cases such as environmental cases. There are no regulations that provide the rules of engagement and use of an expert by the disputing parties. In certain condition, the Panel of Judges has the authority to summon an expert based on the request of one of the parties or in ex officio.

What interim and emergency relief may a court in your jurisdiction grant for energy disputes?

There is no specific interim and emergency relief for energy disputes. In general, the court may grant interim relief, among others, for one of the parties to temporarily cease the construction on the land object of the dispute and conservatory attachment of assets.

What is the enforcement process for foreign judgments and foreign arbitral awards in energy disputes in your jurisdiction?

A foreign judgment is not enforceable in Indonesia.

Foreign arbitral awards are enforceable in Indonesia as Indonesia is a party to the New York Convention and further regulated in Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution (AADR Law) as amended by Constitutional Court Decision No. 100/PUU-XXII/2024. The enforcement process of foreign arbitral awards can be summarised as follows:

• the arbitrator or its legal counsel may register the foreign arbitral award to the Registrar of Central Jakarta District Court. The registration process requires the submission of the following documents:
  • an authentic copy of the award and its official translation;
  • an authentic copy of the agreement that served as the object of the dispute and its official translation; and
  • a statement from the diplomatic representative of the Republic of Indonesia in the country where the award is issued, stating that the issuing country is party to the New York Convention;
• submission of recognition and enforcement (exequatur) petition to Central Jakarta District Court;
• issuance of exequatur stipulation by the Head of Central Jakarta District Court; and
• if the respondent refuse to comply with the award voluntarily, then the usual court decision enforcement will take place (reprimand/aanmaning, attachment, and auction).

Are there any arbitration institutions that specifically administer energy disputes in your jurisdiction?

No. However, the Indonesian Special Task Force for Upstream Oil and Gas Business Activities through PTK 007 mandates that if an agreement concerning the supply of goods or services between subcontractors and holders of a Production Sharing Contract chose arbitration as a dispute resolution forum, then the arbitration should be domestic. AADR Law does not provide an explicit definition of domestic arbitration but in practice, the parties will generally choose the Indonesian National Arbitration Agency.

Is there any general preference for litigation over arbitration or vice versa in the energy sector in your jurisdiction?

In practice, parties in energy sector contracts are generally inclined to choose arbitration as a dispute resolution forum. This is because other than the consideration of the complexity of the case, arbitration offers flexibility on procedure, confidentiality, clearer timeline, freedom to choose arbitrators, and finality. Based on AADR Law, arbitration is only allowed for commercial dispute. AADR Law does not define "commercial dispute", but lists examples of commercial activities that include trade, banking, finance, investment, industrial activities and intellectual property.

Are statements made in settlement discussions (including mediation) confidential, discoverable or without prejudice?

Under the Advocates Code of Ethics issued by the Indonesian Bar Association, statements made in a settlement discussion are without prejudice (ie, the statements and confessions of the parties for settlement purposes cannot be used as evidence in the proceeding if the parties fail to reach an agreement). The Supreme Court also mandates identical obligation for mediation administered by the District Court.

Are there any data protection, trade secret or other privacy issues for the purposes of e-disclosure/e-discovery in a proceeding?

Indonesian law does not recognise disclosure and discovery process in a proceeding. The disputing parties are free to choose the documentary evidence to be submitted and uploaded to the court system, which will be available to be downloaded by the other disputing parties.

What are the rules in your jurisdiction regarding attorney–client privilege and work product privileges?

Law No. 18 of 2003 on Advocates (Advocates Law) provides that advocates must keep confidential everything that is known or obtained from their clients unless required by law. Advocates are entitled to a confidential relationship with the client, including protection of their files and documents against confiscation or inspection and protection against interception of the advocate's electronic communications.

Must some energy disputes, as a matter of jurisdiction, first be heard before an administrative agency?

Any civil disputes between individuals, legal entities, and the government may be directly heard by the district court. An administrative court is only authorised to settle a dispute filed by an individual or legal entity against a state administrative agency or officials, regarding the validity of a state administrative decree (eg, environmental permit, mining business licence, etc).