To celebrate the birthday of the Indonesian National Arbitration Board (BANI), BANI Surabaya, in collaboration with the East Java Regional Board of the Indonesian Notary Association, held a Full Day Seminar, “Implications of Arbitration Clauses in Deeds and Legal Agreements in General, Accompanied by Examples of the Consequences” on Thursday (17 /11/2022). The seminar held offline at the Dyandra Convention Center, Surabaya, also invited speakers from law professors, one of whom was a Professor at the Faculty of Law, Airlangga University (FH UNAIR), Prof. Dr. Agus Yudha Hernoko, S.H., M.H.
Prof. Yudha delivered material on “Law of Engagement and the Disclosure of the Principles of Freedom of Contract in the Notary Deed”. Based on Article 1 point 1 of the Notary Law, a notary is a public official authorized to do authentic deeds and has other authorities as referred to in this law or based on other regulations. Furthermore, Article 15 of the Notary Law regulates the authority of a notary to do authentic deeds regarding all actions, agreements, and stipulations required by laws and regulations or desired by interested parties.
Contracts are the pouring of business processes into a legal format. The purpose of making contracts is to maintain harmonization of business relations, provide a legal basis for contracts, provide parameters for benchmarking the existence of contracts, provide a way out in the event of a conflict or dispute, and create a conducive business climate. In making a deed, a notary is bound by the principles of contract law, including the principle of freedom of contract, the principle of privity of contract, the principle of good faith, the principle of proportionality, the principle of consensual, the principle of pacta sunt servanda, and the principle of comprehensive-systematic. As a forum for the exchange of parties, the accuracy and suitability between the container and the contents/substance of the contract will determine the outcome of the contract. This, said Prof. Yudha, means that the container or contract format that facilitates the exchange of interests should be adjusted to the wishes of the disputing parties.
“Contract drafting is referred to as a contract drafting method that is prepared according to scientific standards and contract law principles. Contracts are designed based on principles that can be tested academically or practically. Errors in formulating business processes into contract systematics can result in errors in the legal format contained in the contract clauses, “said the lecturer in the Civil Law Department of FH UNAIR.
The development, dynamics, and problems of notary practice are not only about legal products of notary deed according to the notary’s authority. More than that, existing pragmatics should refer to legal reasoning, which is a characteristic of professional jurisprudence. According to its core business, a notary can make authentic deeds regarding all actions, agreements, stipulations, and other authorities regulated in laws and regulations. However, the notary is not responsible and not liable for the losses of other parties unless there is a causal-functional relationship between actions, mistakes, and failures based on the principle of proportionality.
“My advice and recommendation are to stick to the rule of law and protect your business practices with the rule of law because every business step is a legal step,” concluded Prof. Yudha.
