The 2007 Indonesian investment law granted national treatment for foreign investors, establishing a transparent 'negative list' for out-of-bonds investment sectors, and has been considired as a reformative regulation in Indonesia's economic strategy. However, decentralized systems give autonomy to local governments to manage their projects and infrastructure themselves. This leads into increasiig investment burdens through their opaque measures that are creating perceptions of risk for foreign investors. As a result, lack of legal certainty, inconsistent regulations and judiciary system would hamter investments. This article argues that law 25/2007 should be supported by a comprehensive investment policy to attract more foreign investors into Indonesia. A key element in establishing a competitive region is a free and open investment regime, This article addresses policy impediment to private investment in Indonesia as well as in the ASEAN region. Indonesia and ASEAN should have non-discriminatory treatment extended to foreign investors including ASEAN-based inveitors, as the establishment of ASEAN Economic community (AEC) will cornmence in 2015. Legal certainty of international business transaction by private investors is fostering investments by both direct investment and indirect investment (portfolio). Parties to investment agreements include individuals, small, medium and large multinational corporations, and countries. In this centralized global atmosphere, the Indonesian agovemment has to provide guarantees to leverage private investments.
In order to carry out the crime prevention and control policy, there are two ways thatcan be carried out, namely the use of penal facilities or criminal (legal) sanctions,and the use of other facilities (nonpenal). Thus the use of criminal (legal) sanctions isone of the policies in criminal politics, which in this case is not a means that occupiesa strategic position and causes many problems. Moreover, if it is associated with theuse of criminal sanctions to achieve the purpose of prevention as one of the premise ofabolitionist understanding. As a means of law enforcement policy in order to controlcrime, the use of criminal (legal) sanctions is not an absolute. Even if it will be used,then the problem is the policy of its use must be rational by paying attention to thehumanistic approach and social interests that contain certain values that need to beprotected. As a criminal policy, the extreme attitude to eliminate criminal (legal)sanctions is not a policy step. Because what needs to be done in policies to controland overcome crime is an integrated approach between penal and non-formalpolicies. This non-formal activity occupies a key and strategic position that must beintensified and streamlined in controlling and overcoming crime, not eliminatingcriminal law.
Small Medium Entreprises (SMEs) and Cooperative have not received a proper law protection in facing trade liberation of ASEAN Economic Community (AEC) and economic globalized world. In 2015 AEC has been established that would bring a huge change in Southeast Asia regionS and definitely will have a wide impact to business people in Indonesia. SMEs and Cooperative contribute to more than 90 percent of total Indonesian national economy. However, they are weak on investment and information technology and management skill as well as competition law among ASEAN Member States. Economic policies do not give a sufficient protection to SMEs and Cooperative. This article tries to seek solutions for SMEs problems especially their legal structure in order to enhance their competitiveness. This article argues that the government can provide legal protection by reforming SMEs economic sectors similar to the AEC's priority sectors by which the Indonesian' SMEs would become world class corporate.
Selain memiliki dimensi sosial ekonomi, konflik agraria di Bongkoran, Kabupaten Banyuwangi, Provinsi Jawa Timur, Indonesia, juga memiliki dimensi hukum. Terdapat dualisme hukum yang konfliktual dalam hal penguasaan tanah dan klaim penggunaan. Satu pihak, pemerintah, dan korporasi mengandalkan hukum negara yang legalistik-positivistik, sedangkan masyarakat lokal mengandalkan hukum rakyat yaitu hukum informal yang sudah ada, hidup, dan berkembang dalam masyarakat komunal secara turun-temurun. Penelitian ini berfokus pada bagaimana perspektif sosiologis hukum menganalisis konflik hukum yang terjadi dalam konflik agraria Bongkoran, khususnya antara hukum negara dan hukum rakyat. Penelitian ini menggunakan metode kualitatif dengan perspektif sosiologi hukum. Subjek penelitian adalah petani/masyarakat Bongkoran, Penasehat Hukum Masyarakat, Pemerintah (Pemerintah Daerah, Badan Pertanahan Nasional, dan Kepolisian), dan unsur korporasi (PT Wongsorejo). Informan dipilih dengan menggunakan teknik purposive sampling, berdasarkan pertimbangan tertentu yang dapat dikenali terlebih dahulu yaitu mengenali dan memahami masalah yang diteliti. Pengumpulan data dilakukan melalui observasi, wawancara mendalam, dan dokumentasi. Data yang terkumpul dianalisis secara kualitatif dengan mengacu pada perspektif yang telah disajikan. Hasil penelitian menunjukkan bahwa penyelesaian konflik agraria di Bongkoran memerlukan implementasi hukum yang lebih berkeadilan bagi masyarakat lokal. Implementasi hukum tidak hanya berdasarkan pasal-pasal yang rigid dalam undang-undang, tetapi perlu memperhatikan konteks sosial budaya dan historis dari masyarakat. Dominasi hukum negara atas hukum rakyat dalam konflik agraria mengakibatkan praktik penundukan hukum negara ke hukum rakyat, baik secara persuasif maupun represif. Oleh karena itu, untuk meminimalisir ketegangan dan konflik antara hukum negara dan hukum rakyat dalam konflik agraria, diperlukan pemahaman baru tentang hubungan kedua hukum tersebut. Keberadaan dan penegakan hukum rakyat dijadikan sebagai elemen yang saling melengkapi dalam aspek normatif yang belum diatur dalam hukum negara. ; Apart from having a socio-economic dimension, agrarian conflicts in Bongkoran, Banyuwangi Regency, East Java Province, Indonesia, also have a legal dimension. There is a dualism of law that is conflictual in terms of land tenure and use claims. One party, the government, and corporations rely on legalistic-positivistic state laws, while local people rely on folk law, namely informal laws that have existed, lived, and developed in communal society for generations. This research focuses on how the sociological perspective of law analyzes the legal conflicts that occur in Bongkoran agrarian conflict, particularly between state law and folk law. This research used a qualitative method with a legal sociology perspective. The research subjects were farmers/people of Bongkoran, Community Legal Advisors (CLA), Government (Local Government, National Land Agency, and Police), and corporate elements (PT Wongsorejo). Informants were selected using a purposive sampling technique, based on certain considerations that can be recognized beforehand, namely recognizing and understanding the problem under this research. Data collection was conducted through observation, in-depth interviews, and documentation. The collected data were analyzed qualitatively by referring to the perspectives that have been presented. The results indicated that the resolution of agrarian conflicts in Bongkoran requires the implementation of laws that are more just for local communities. The implementation of the laws is not only based on rigid articles in the law, but it needs attention to the socio-cultural and historical context of the community. The dominance of state law over folk law in agrarian conflicts results in the practice of subjugation of state law to folk law, both persuasively and repressively. Therefore, to minimize the tension and conflict between state law and folk law in agrarian conflicts, it is necessary to have a new understanding of the relationship between the two laws. The existence and enforcement of folk law are used as a complementary element in normative aspects that have not been regulated in state law.
Development of Indonesian national law should not leave attention to development of legal plurality as its source. Focus of this study is to see the influence of Indonesian social factors on the development of Islamic law and how Islamic law can be integratively transformed into the National Law. By qualitative method and socio-legal approach and constructivism paradigm, this study bases on theories of social change influeces on Islamic law law without leaving methodology of usul fiqh and the sources of Islamic law. Islamic law has broad opportunity and experiences to be integratively transformed into national law within Indonesia's own character. Transformation can be done in the whole structure of Islamic law including its values of philosophy, principles and norms, and can be performed in all areas, both private and public Law, written law by political power and unwritten law with cultural approach. However, Islamic law as one of the Indonesia living laws and the sources of National law, still today is viewed in dichotomy to the National law and only transformed in limited norms. There are many obstacles to be transformed into national law integratively and widely, though Islamic law has wide space of interpretation and intellectualism that can adapt to different contexts and National law.
since 2007 ASEAN has moved towards an ASEAN Economic community(AEC) as an economi integration of member states based on four economic pillars. One of AEC economic pillar the single market and Production base, means,the region as a whole must become a single market and production base to produce and commercialize good and services anywhere in ASEAN. The establishment of AEC is offering opprtunities in the from of a huge market of US$ 2.6 Trillion and over 622 million people. Of this number, around 40 per cent or 245 million people live in Indonesia. Numerous officials and othes have their doubts and worried that Indonesia will mainly be the market for the AEC and Indonesia's progress in developing its human capital will be negatively impected compettition from other ASEAN nations. The crucial futher step of the AEC is to implement the free movement of skilled labors as one of five core principles of single market and production base pillar, as it will boost economic integration in the region levels. In practice however, progress towords freer mobility has been slow and uneven. In practice however, progress towards freer mobility has been slow and uneven, due to rigid national immigration policies, inequalities in professional education and licensing regimes, public ambivalence toward the AEC, and the vast income gap that many countries fear will contribute to brain drain. This article examines impediment of free movement of skilled labors as a result of weak political and public support to drive the process forward as well as the myriad policy and procedural obstacles of free movement of skilled labor of selected categories of professions associated mainly with trade in service and invesment, this article also reviews the AMSs' policies in these areas
Currently, ASEAN has come to the new phase of cooperation on political security, economic, and socio-cultural by the establishment of ASEAN Charter in 2008. The cooperation has been deepened, widened, and enlarged. Accordingly, the AEC is the most significant cooperations, namely the economic integration of ASEAN which not mere free trade area but to make the region as a production basefor all products of ASEAN as well as to accomplish the region as a single market by applying scorecard system of AEC's blueprint that should be preserved by all ASEAN state members. Theformation of AEC in 2015 totally depends to the commitments of the member states of ASEAN to apply those agreed trade agreements, roadmaps, and plan of actions including AEC's blueprint.
A soft Brexit scenario will include an implementation period from the day the UK formally leaves the EU to 31 December 2020. During the implementation period, the UK will continue to be functionally treated as an EU member state and remain a party to EU international agreement. Associated with the ASEAN single market, should be considered the readiness of Indonesian regulations and legislations that in sectorial concerns at least three aforementioned legal instruments to be harmonized with the laws of the ASEAN countries. Important findings were shown by the research from the perspectives of business law, especially, capital investment law, intellectual property and international trade law that Brexit has significant impact for the EU itself, Indonesia and also AEC.
In the era of independence, guided democracy, the new order, until the era ofgovernance reform in Indonesia tended to override the importance of diversity.Power consolidation tends to deny the existence of customary law community unitsand is usually accompanied by etatism tendencies. This article describes how theexistence and regulation of customary law community units as subjects ofConstitutional Law. The conclusion obtained is that the existence and regulation ofcustomary law community units as subjects of constitutional law in the legal systemof the Republic of Indonesia constitution is guaranteed and recognized based on theprovisions of Article 28 B paragraph (2) article and 28 I paragraph (3) of the 1945Constitution, as well as in Article 6 UU no. 39 of 1999 concerning human rights
Changes in regulations concerning employment, in particular regarding dispute resolution mechanisms State Civil Apparatus then indirectly affect the implementation of dispute resolution for the State Civil Apparatus. In contrast to what was in the previous law that the administrative appeals filed with the Personnel Advisory Board. In Article 129 of Constitution Number 5 of 2014 about civilian state apparatus.arranged among others on the administrative appeal submitted to the Advisory Board of civilian state apparatus, in which the efforts of administrative appeals and on the Advisory Board of the civilian state apparatus regulated by Government Regulation. But until now the government regulation has not been issued so that the dispute settlement civilian state apparatus, particularly for government employees with work agreementwill be problems in implementation.Legal protection of the state apparatus in the employment dispute resolution after the enactment of Constitution Number 5 of 2014 about civilian state apparatus can not be optimal be given and legal protection that the government can do isimmediately issued Government Regulation.
This paper is a revised version and an expanded version of the paper entitled 'Shares Divestment Scheme in Indonesian Mining Law'. Several cases of ICSID are cases of shares divestment, one of them is the Freeport case that offers divestment by giving the assumption of investment if the Government extends the Freeport Operational License until 2041. It violates determination of divestment share price as the value should be based on fair market price without calculating the amount of minerals. Shares divestment execution is often hampered by the determination of divestment shares' price. The purpose of the divestment arrangement was not achieved because of the price fixing issue which causes divestment failure or causes divestment delay, and the shares that were previously for the government eventually fell on private shareholders which might be owned by foreign parties. This paper is a legal research. It is intended to formulate a shares divestment scheme in the mining sector in Indonesia based on rational choice theory and public choice theory, which is expected to give a valuable contribution to the Government of the Republic of Indonesia as well as stakeholders and can be the ontological basis for laws and policies related to the investment and mining laws in Indonesia. The approaches which are used are the conceptual, statute, case and comparative approach. The primary legal materials that are used are legislation, international conventions and court decisions, while the secondary legal materials are in the form of literature and related materials.Key words: Investment law, mining law, national interest, rational choice theory, shares divestment.
Abstract Corruption is a criminal act that breaks and against the state law and the religion law. Due tothe fact that this corruption is not only prohibited by the greatest one God but the effectivelegislation rule as well. Furthermore, the corruption can bring about a loss to all side. Forinstance; being able to make a misery society and country, locking the country economygrowth rapidity, putting in disorder country, being able to bring about a bad image for thecountry on the international people's view, in addition to, being able to cut down the countrythrust level on the international worl eithin doing cooperation, mainly in economy sector. Evenfor further more, the corruption make afraid of all foreigner investors to invest their stock orshare in Indonesia.On the other hand, the corruption can also induce the blocked project being carried out inourselves country as well as can hamper routine's job of the country. Thus the corruption actcan become the cause of the stopped country advance or progress. As a final point, thosecorruptors' re properly given a punishment dealing with their deed. Even a great deal ofsociety group wish those corruptors to be killed out or be given as a death sentence or in otherwords, at least is to be imposed as heavy as punishment in order to making them discourageto redo their deed. As a matter of the fact, this is only an example for other people who want todo what was done by the perpetrators before. In the long run, the corruption level can bedecreased in this our motherland's country.Keywords: the corrupt criminal act constitution, constituonal law, the effectivelegislation rule, Islamic law, Al-Qur'an & Al-Hadist.
This paper analyses the important of regional investment agreements for promoting international trade in ASEAN countries. To visualize the above idea, this work will explain the roles of regional investment agreements to serve investment, trade facilitation and to protect regional investment interests. It is argued that regional investment agreements can serve as a vehicle for dialogue, coordination on and to response regional issues including regulatory harmonization, infrastructure development, and collaboration among members to facilitate investment. The paper shows how regional agreements will commit to eliminate barriers on substantially trade and investment, create positive welfare gains, the productivity and stimulus to growth in the region. This paper also analyses the effect of the establishment of an ASEAN Economic Community (AEC) by 2015 to the regional investment policies. AEC aiming at transforming ASEAN into a single market and production base with a highly competitive economic region, equitable economic development, free movement of goods, services, investment, skilled labor, and freer flow of capital, will likely accelerate regional integration and cooperation in the investment sectors fully integrated into the international trade. Then, this work demonstrates the implementation of regional investment cooperation into the formal instruments/agreements of investment policy architecture promoting and protecting cross border investment among nationals of ASEAN member states, such as ASEAN Investment Guarantee Agreement (IGA), the ASEAN Investment Area (AIA) and ASEAN Comprehensive Investment Agreement (ACIA). However, it is realized that the ASEAN members may resist and protest against the regional investment agreements because of conflicting their national interest. The paper proposed that the regional inv stment agreements need to be strengthened by harmonization and structural adjustment due to the member's resistance and protest. This idea may spark challenge because each member has fundamental differences on the nature and character of legal and economic systems reflecting different political systems, economic and social cultures in accordance with the philosophy of life values and national interests of each country. To overcome the challenge, this paper argues that ASEAN member countries need to unilaterally and collectively come up with structuring trade and investment policy harmonization to move ahead and reap the benefits from regional investment agreement as a common tool for contesting their interest in international trade. In addition, pre agreed flexibilities to accommodate the interests of all ASEAN countries may eliminate the problem.
