JAKARTA - The trial of the case against Parbulk II AS (Parbulk) to PT Humpuss Intermoda Transport (HITS) with case number No. 116/Pdt.G/2023/PN JKT.SEL has entered the examination stage of expert witnesses. Parbulk as the plaintiff presented two expert witnesses, namely M. Yahya Harahap SH, former Supreme Court Justice at the Supreme Court of the Republic of Indonesia, and James Purba SH, MH as Chair of the Advisory Council of the Indonesian Kurator and Management Association (AKPI).
The two experts were presented to provide their views regarding the authority of the South Jakarta District Court in examining the lawsuit filed by Parbulk.
In his statement, Harahap said that the foreign court's decision was valued as an authentic deed and could be used as the basis for filing a new case lawsuit in an Indonesian court. The former Supreme Court judge said that the lawsuit for this new case could be in the form of a default lawsuit if the subject dispute decided by the foreign court's decision was default.
Based on Article 436 Reglement op de Rechtsvordering or Rv and Article 25 paragraph (2) of the Law on Judicial Power, the lawsuit for the new case is subject to the jurisdiction of the civil court.
Meanwhile, the second expert witness presented by Parbulk, namely James Purba SH, MH, said that the lawsuit for the new case must pay attention to Article 118 of Herzien Inlandsch Reglement or HIR, which is submitted to the district court where the defendant lives. Purba also explained that a PKPU process does not hinder the submission of new cases.
If there were creditors who were not properly summoned in the past, so they did not participate in the PKPU process, and their names were not listed in the PKPU decision, then filed a new case in order to implement a foreign court decision based on Article 436 Rv, then this was allowed.
In line with Harahap, a civil law expert who is also a civil law teacher from Trisakti University, Dr. Asep Iwan Iriawan, SH, MH, said that the decision of the British High Court was an authentic deed. That way, his legal force is perfect, formal, material, and binding to disputed parties. So the South Jakarta District Court Panel of Judges can use the basis of the decision of the British High Court as the basis for making a decision.
"At the British High Court HITS has lost, in arbitration as well as Heritage losing. So the debt should be paid by HITS as the person in charge. Do not let the wrong decision from the court result in disrupting foreign confidence in the future of investment in Indonesia," Asep explained.
"The case is simple, because there is already a basis for the decision of the British High Court, the Panel of Judges can grant the lawsuit, because the authentic deed is perfect and binding. The confiscation also deserves to be granted because it is based on an authentic deed," he added.
Asep assessed that he still had hope in the court that there would be justice based on the actual facts. He considered this trial to be in a fair framework in accordance with applicable legal provisions.
"So if in this case the Panel of Judges is still playing games, it will have a negative impact on investment trust abroad," he said.
Meanwhile, at the previous trial on August 15, HITS scheduled an examination of expert witnesses, but during the trial, his party could not present expert witnesses as previously scheduled.
The US Parbulk II lawsuit against PT Humpuss Intermoda Transport Tbk (HITS) began with the Ship Rental Agreement - BIMCO Standard Bareboat on December 11, 2007 (Settle Rental Agreement), where based on the Ship Rental Agreement, Parbulk agreed to lease Mahakam ships to Heritage. Previously on December 5, 2007, the Board of Directors and the Board of Commissioners of HITS signed a circular decision as a substitute for the Board of Commissioners meeting and a replacement for the Board of Commissioners meeting which approved the creation of a Certificate for Companies Legalized by Muslims, SH, MKn, Notary in Karawang Regency with No. 69/LEG/N/XII/2007 (Requirement Statement).
This Position Statement Letter is one unit with the Ship Rental Agreement carried out by Parbulk with Heritage, With the existence of a Statement of Handling, HITS has a direct legal relationship with Parbulk, and makes HITS the person in charge who provides unconditional positions and cannot be withdrawn for all Heritage obligations as part of a subsidiary of HITS. The existence of this Statement of Accounting is in accordance with what is required by the Limited Liability Company Law No. 40 of 2007 Article 102 paragraph (1), (3), and (4).
Furthermore, Heritage failed to pay Mahakam's rent from the rental period on April 16, 2009 to June 15, 2009. Various efforts have been made by Parbulk to obtain their rights according to the Ship Rental Agreement.
Parbulk has filed a lawsuit against Heritage through the London Maritime Arbitrators Association (LMAA) arbitration agency and to HITS through the High Court of England (British High Court).
These two institutions won Parbulk's lawsuit, but neither Heritage nor HITS respected these decisions and still did not pay their obligations until now. As a result of the default that had been carried out by HITS, Parbulk suffered a loss of USD 48,183,659.87.
Director of Parbulk II AS, Christian Due, said that Indonesia needs to support the enforcement of the rule of law and ensure that international business contracts are respected, both in principle and in practice.
"Indonesia needs to maintain international trust by ensuring that all its courts support the ease of doing business in Indonesia and enforcing international contracts, as well as enforcing the decisions handed down by the international arbitration assembly and foreign courts against the Indonesian side where without it, foreign investors are at risk of being reluctant to invest in Indonesia."
Currently, Parbulk is filing a lawsuit against HITS at the South Jakarta District Court for its default on the Statement of Responsibility by making the British High Court Decision the basis.
In the petitum of his lawsuit, Parbulk asked the South Jakarta District Court to grant all of his lawsuits and grant the confiscation of guarantees submitted by Parbulk to prevent the decision from being carried out in the future.
"We respectfully ask the Court to grant our rights. This case should be resolved in accordance with justice, or this will set a bad precedent for foreign investors who do business with Indonesian companies. This needs to be done to increase the level of ease of doing business in Indonesia and Indonesia's ranking in terms of enforcing international business contracts in Indonesia," added Due.
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