Arbitration as Lex Specialis: A Review of Position and Implementation in National Law

Abstract

This study aims to analyze the position of arbitration as Lex Specialis Derogat Legi Generali (special law overrides general law) in the Indonesian national legal system and review its implementation, particularly in the context of commercial dispute resolution. This Lex Specialis principle grants higher legal force to mutually agreed arbitration provisions compared to general court litigation provisions. Normatively, the position of arbitration is affirmed by Law Number 30 of 1999 concerning Arbitration and Dispute Resolution Options, which explicitly limits the authority of general courts to interfere in the arbitration process. The implementation of this principle is tested through the practice of court decisions. The results of the review indicate that Indonesian courts, particularly at the cassation and judicial review levels, tend to be consistent in recognizing and enforcing valid arbitration clauses, and rejecting opposing requests that violate the principle of judicial non-intervention. However, there are challenges in its implementation, particularly regarding the interpretation of the objects of dispute that can be arbitrated and the execution of international arbitration awards. In conclusion, arbitration has been recognized as an effective Lex Specialis in resolving commercial disputes in Indonesia, but harmony of interpretation between the arbitration body and the judicial institution remains the key to ensuring legal certainty.