Hpi Topik III-IV

HUKUM PERDAGANGAN INTERNASIONAL
TOPIK III-IV
KEDUDUKAN NEGARA SEBAGAI PELAKU TRANSAKSI KOMERSIAL

DAN UPAYA UNIFIKASI HUKUM KOMERSIAL INTERNASIONAL
RUSLI PANDIKA
PROGAM MAGISTER HUKUM
UNIVERSITAS PELITA HARAPAN
JAKARTA
REASONS FOR NOT RECOGNIZING AND ENFORCING FOREIGN JUDGMENTS
It is become common practice in international community that a state

would not recognize and enforce a foreign court’s judgment. The reasons
behind the attitude:
1. principle of sovereign equality;
2. a state court judgment will only effective within the territorial
jurisdiction of the state.
RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGEMENTS
• Indonesia, dengan tegas berpendirian bahwa putusan suatu pengadilan hanya efektif
di dalam lingkungan yurisdiksi negara dimana pengadilan berada (v. 22.a. A.B.1847);
• Di Ingris, tidak mengakui. Kecuali putusan mengenai uang akan diakui sebagai prima
facie evidence di muka pengadilannya;
• Di US dalam lingkungan sesama state di dalam federasi saling mengakui putusan

pengadilan berdasarkan “the Full Faith and Credit clause” di dalam the US Constitution
(v. Art. IV § 1). Tetapi US Constitution tidak mengatur tentang bagaimana pengadilan
harus bersikap terhadap putusan pengadilan asing, sehingga diserahkan kepada
masing-masing pengadilan;
STATE IMMUNITY IN COMMERCIAL TRANSACTION
Article 10 of the UN Convention on Jurisdictional Immunities of

States and Their Property (2004) provides that:
there is no immunity where a State engages in a ‘commercial
transaction’ with a foreign natural or juridical person (but not
another State) in a situation where by virtue of the rules of private
international law a dispute comes before the court of another
State, unless the parties otherwise expressly agree.
SOVEREIGN IMMUNITY IN COMMERCIAL TRANSACTION
• Sovereign or public acts of State (jus imperii) and private acts

of State (jus gestionis);
• Restrictive immunity of sovereign acts has been accepted
worldwide;
• Commercial transactions are generally accepted as jus
gestionis, therefore not immune from jurisdiction of foreign
State court.
ACTIVITIES THAT ARE NOT SUBJECT TO STATE IMMUNITY
Following activities are not subject to State immunity under the

UN Convention on Jurisdictional Immunities (2004):
þ Commercial activities;
þ Contracts of employment;
þ Torts;
þ Title to or possession of property;
þ Patents and Trademarks; and:
þ Commercial shipping.
COMMERCIAL TRANSACTIONS
Article 2(1) of the UN Convention on Jurisdictional Immunities

(2004) provides that the term ‘commercial transaction’ means:
i. A commercial contract or transaction for the sale of goods or the
supply of services;
ii. Any contract for a loan or other transaction of a financial nature,
including any obligation of guarantee or of indemnity in respect of
any such loan or transaction;
iii. Any other contract or transaction of a commercial, industrial,
trading or professional nature, but not including a contract of
employment of persons.
DOMESTIC AND REGIONAL REGULATIONS CONCERNING STATE IMMUNITY
• The US Foreign Sovereign Immunites Act of 1976;
• The UK State Immunity Act of 1978;
• The European Convention on State Immunity of 1972.

INSTITUSI YANG AKTIF DALAM UPAYA UNIFIKASI HUKUM KOMERSIAL INTERNASIONAL
• UNIDROIT (the International Institute for the Unification of

Private Law);
• UNCITRAL (the United Nations Commission on International
Trade Law);
• ICC (International Chamber of Commerce).
METHODS OF UNIFYING INTERNATIONAL TRADE LAW
There are 4 (four) methods of unification of international

commercial law:
1) Convention;
2) Model law;
3) Legislative Guidance
4) Uniform of Practice.
CONTOH CONVENTIONS
• Convention on the Recognition and Enforcement of Foreign Arbitral

Awards, New York, 1958
• United Nations Convention on International Multimodal Transport
of Goods, Geneva, 1980;
• UNIDROIT Convention on Agency in the International Sale of
Goods, Geneva, 1983;
• Convention on the Law Applicable to Contracts for the International
Sale of Goods, the Hague, 1985; [CISG]
CONTOH MODEL LAW
• UNCITRAL Model Law on International Commercial

Arbitration 1985;
• UNCITRAL Model Law on international Commercial
Conciliation, 2003;
• UNIDROIT Principles of International Commercial Contracts,
2004.
CONTOH LEGISLATIVE GUIDANCES
1. UNCITRAL Recommendations to Governments and

International Organizations concerning Legal Value of
Computer Records (1985);
2. The Legislative Guide on Privately Financed Infrastructure
Projects (2000);
3. Model Legislative Provisions on Privately Financed
Infrastructure Projects (2003);
CONTOH UNIFORM PRACTICES
• Uniform Customs and Practice for Documentary

Credit 600 (UCP 600), 2007;
• International Standby Practices 1998 (ISP98)
• International Commercial Terms 2020 (INCOTERMS

2020).
CISG: BACKGROUND
• CISG (the UN Convention on Contracts for

International Sale of Goods, 1980) entered into
force on January 1, 1988;
• The draft of CISG was prepared by UNCITRAL;

• The goal of CISG is to unify and codify an
international law of sales.
CISG: GENERAL PRINCIPLES
• The CISG contains four part and 101 articles designated

to assist buyers and sellers in creating, performing and
enforcing contracts.
• The CISG steered clear of favoring any single set of
domestic laws, opting instead to compromise among
the world’s predominant legal systems;
• The CISG to have balanced the positions of buyers and
sellers by ensuring ther respectives rights and
obligations mirror each other.
CISG: LIMITS OF COVERAGE
The CISG contains 5 (five) limitations:

1. The CISG applies only to commercial contracts;
2. The CISG governs only sales of goods;
3. The CISG is concerned with international contracts;
4. There are excluded topics in the CISG in order to permit
universal acceptance among nations;
5. The CISG literally permts buyers and sellers through their
contract to expressly exclude any or all of its provisions.
COMMERCIAL CONTRACTS
The CISG covers merchant-to-

merchant sales, it does not govern
merchant-to-consumer sales .
SALES OF GOODS
• The CISG coverage is limited to sales of

goods;
• Services and real estate transactions are not
covered by the CISG.
INTERNATIONAL TRANSACTIONS
• The CISG will automatically applies to commercial

sales of goods between buyers and sellers whose
place of business are in different ratifying nations;
• The CISG may be applied to an international contract
which one of the parties’ place of business in a nation
which is not the party to the CISG, if the normal
choice of law rules would find the contract had the
closest connection to the party whose place of
business is in the ratifying nation.
OPTING OUT
ü The CISG is not the controlling law for international

contract of sale of goods between the parties whose
place of business in different ratifying nations.
ü The CISG permits the parties to the transaction to opt
out of its coverage.
ü The parties may reject its application and select
another set of rules to govern their contract or to
accept its coverage but vary any of its provisions.

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HUKUM PERDAGANGAN INTERNASIONAL

KEDUDUKAN NEGARA SEBAGAI PELAKU TRANSAKSI KOMERSIAL

It is become common practice in international community that a state

• Di US dalam lingkungan sesama state di dalam federasi saling mengakui putusan

Article 10 of the UN Convention on Jurisdictional Immunities of

• Sovereign or public acts of State (jus imperii) and private acts

Following activities are not subject to State immunity under the

Article 2(1) of the UN Convention on Jurisdictional Immunities

• The US Foreign Sovereign Immunites Act of 1976;

• The UK State Immunity Act of 1978;

• The European Convention on State Immunity of 1972.

• UNIDROIT (the International Institute for the Unification of

There are 4 (four) methods of unification of international

• Convention on the Recognition and Enforcement of Foreign Arbitral

• UNCITRAL Model Law on International Commercial

1. UNCITRAL Recommendations to Governments and

• Uniform Customs and Practice for Documentary

• International Commercial Terms 2020 (INCOTERMS

• CISG (the UN Convention on Contracts for

• The draft of CISG was prepared by UNCITRAL;

• The CISG contains four part and 101 articles designated

The CISG contains 5 (five) limitations:

The CISG covers merchant-to-

• The CISG coverage is limited to sales of

• The CISG will automatically applies to commercial

ü The CISG is not the controlling law for international

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