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Saturday, January 23, 2010

Pertamina VS Karaha Bodas: Judge the Law-Enforcement Perceptions in Indonesia?

Published on Bisnis Indonesia on 7 and 8 July 2004.

By: Sulistiono Kertawacana
Legal Practitioner in Jakarta

After going through the exhausting dispute, finally PERTAMINA intended to pay claims Karaha Bodas Co.. LLG (KBC) in the amount of U.S. $ 250 million to meet the decision of International Arbitration (U.S. $ 291 million-pen) because of suspension of the geothermal power plant (PLTP) Karaha project.

However, two days later (May 13, 2004), two from PERTAMINA (Priyanto as the former head of the Division of Geothermal and Syafei Sulaeman as the former chief sub Geothermal) and Robert Mc Kitchen (U.S. citizens) as Vice President KBC suspected under corruption case of Karaha PLTP project.

Karaha Geothermal Power Plant Project is a project to develop a geothermal power plant 400 Mega Watt (MW). There are two contracts signed on November 28, 1994. Namely, (i) Joint Operation Contract between PERTAMINA and KBC (associated with geothermal field development) and (ii) Energy Sales Contract between between PERTAMINA, KBC, and PLN that will act as buyer of electricity generated.

However, since the economic crisis and the recommendations from the International Monetary Fund (IMF), on 20 September 1997 the President through Presidential Decree No.39/1997 on Suspension / Re-Assessment of Government Project, State Owned Enterprises, and Private Businesses Associated with the Government /State.

Presidential was suspending the Karaha PLTP project until economic situation recovers. Furthermore, on 1 November 1997 through Presidential Decree No.47/1997, the Project should be continued. However, based on Presidential Decree No. 5 / 1998 on January 10, 1998 the Project was back on suspended.

Eventually the government, on March 22, 2002 through Presidential Decree No.15/2002, intends to continue the project. Furthermore, supported also by the Decree of the Minister of Energy and Mineral Resources of No.216K/31/MEM/2002 Geothermal Power Plant Project Status Determination of Suspended Karaha Being Forwarded.

From this series of stories, suspension PLTP the Karaha project was not purely PERTAMINA’s intention, but it is to carry out government policy.

In fact, government policy recommendations were backed by the International Monetary Fund (IMF), which is indicated by the Letter of Intent Government of Indonesia to the IMF to overcome the economic crisis. Of course, the crisis itself (and is internationally recognized) is not the will of the government. That is, suspension of the project is the impact of economic crisis follow-up beyond the control of the government; let alone PERTAMINA.

Termination of a contract by one party (not the agreement of the parties), in view of law, can be caused by defaults (default or non-fulfillment) or force majeur (emergency situation).

Starting point that distinguishes the two is the will to cancel the contract. If the intention to end the contract is one of the free will of parties, so he defaults. Meanwhile, if the failure of one party to fulfill the contract due to performance in circumstances beyond the control of one party, so in a state of forced and unpredictable events, called a force majeure.

Categorizing conditions in force majeur are (among others) government policies / regulations, natural disasters (floods, earthquakes, mountain erupted), war, riots, and armed rebellion.

If the contract cancellation is caused by the defaults, then the injured parties deserve compensation. Not so, however, if caused by force majeure. Because, on force majeur, the event is outside of the will of the parties and are not predictable.

Thus, the suspension of the project by PERTAMINA Geothermal Power Plant Karaha is force majeure. However, KBC does not care about the reason for that is the basis of suspension of project. Proved, in April 1998 sued KBC PERTAMINA through International Arbitration in Switzerland.

A Pathetic Dispute

Of the total claim for damages KBC to PERTAMINA for U.S. $ 560 million (U.S. $ 100 job losses that have been implemented for 8 exploration wells and 20 small wells by KBC million plus the value of benefits to be received), arbitration "only" claim KBC grant worth U.S. $ 261 million.

Indeed, there are some things that dubious "honesty" KBC in the disputed project. First, according to the Indonesian Geothermal Association (API) there are indications KBC to mark up for financing the project (of course in cooperation with the Indonesian side). Because, according to the API as well invests on average U.S. $ 3 million, so the maximum cost of about U.S. $ 40 million (KBC claim his expenditure of U.S. $ 100 million).

Second, based on insurance claims that have been received by KBC and the actual reserves of evidence, only 60 MW (Kompas 6/6/03). Consequently, KBC's ability to build projects for 400 MW Geothermal Power Plant as stated in the contract is still in doubt.

Third, KBC has received an insurance claim from Lloyd's - London on hold the project is U.S. $ 75 million. This means that if the insured value of the total project, the project is U.S. $ 75 million (much smaller than KBC lawsuit amounted to U.S. $ 100 for damages expenditure value KBC).

Fourth, there is a difference in the value of projects already carried out (expenditure) are reported to the Directorate General of Taxation (U.S. $ 83 million) with the proposed arbitration (approximately U.S. $ 100 million).

But, International Arbitration in 2000 had granted the lawsuit KBC with PERTAMINA to pay punitive damages of U.S. $ 261 million (. U.S. $ 111.1 million for expenses and losses of U.S. $ 150 million for loss profits (lost of profit) plus interest of four percent per year since 1 January 2001).

PERTAMINA has proposed a variety of legal efforts to cancel the implementation of the International Arbitration decision in foreign courts where the assets of PERTAMINA.

Based on Article 5 paragraph (2) b of the Convention on the Recognition and Enforcement of Foreign Arbitral Award dated June 10, 1958 ( "1958 New York Convention") - Indonesia has ratified a presidential decree stipulated that the petition No.34/1981- enforcement of arbitration International can be rejected as contrary to public order (public policy / public order).

Reasons for refusing a weapon contrary to public order are very flexible. Even sometimes seems so subjective. Especially for the countries that were defeated. In general, the public order is defined as the order, prosperity and security, justice, or not contrary to law.

By considering the suspension of the project based on state policies as stipulated in the Decree, then on August 27, 2002 the Central Jakarta District Court has awarded to grant the request of PERTAMINA that refused the execution of international-arbitration award.

The reason, contrary to public order, as allowed by Article 66 of Law No.30/1999 on Arbitration and Alternative Dispute Resolution.

The fate of Assets

The issue is, how the fate of PERTAMINA's assets frozen by the courts in foreign countries? KBC has sued for the conduct of arbitration decision in the courts of New York, Texas, Hong Kong, and Canada to be able to freeze the assets of PERTAMINA in the country.

New York court had frozen the existing PERTAMINA deposits in the Bank of New York. PERTAMINA fate that will be decided by the Supreme Court (Supreme Court / Supreme Court) in New Oreleans, United States (U.S.) in September 2004 to come.

Therefore, efforts to uncover cases of police corruption in Karaha PLTP project are one of the searches for new evidence (Novum) other than Novum in the form of an insurance claim payment from the Lloyd-London over the suspension of the project.

As we know, the U.S. has a Foreign Corruption Practice Act (FCPA) in 1977 which has been changed several times. U.S. companies operating in Foreign Affairs do FCPA jurisdiction outside the United States to reach that prohibits the practice of corruption (including bribery). Threats are fines up to U.S. $ 2 million for legal entities or U.S. $ 250 thousand for individuals and imprisonment of up to 5 years..

It is said, as quoted by Tempo Magazine, one had thought that corruption was investigated by the police include the status of PT Sumarah in Karaha Bodas. Allegedly, 10% of shares owned PT Karaha Bodas Sumarah is blank stock only alias no deposit on paid capital.

That is, Karaha Bodas was reasonably suspected to violate FCPA. The hope, if only stock proven no paid up, then the U.S. Supreme Court that will decide the case in September 2004, will refuse enforcement of international arbitration on the grounds KBC has been violated Indonesian law in violation of the FCPA substantially.

Therefore, police, prosecutors, and courts in Indonesia to quickly process cases of alleged corruption and KBC are expected to be terminated before the U.S. Supreme Court decision. It is a work effort that cannot be delayed.

Investment Insurance

Indeed, to anticipate the risk of direct foreign investment (especially in developing countries), the World Bank (WB) has initiated the Convention Establishing the Multilateral Investment Guarantee Agency (MIGA). The Convention has received the World Bank in the 1985 annual meeting in Seoul (South Korea). All member countries of the World Bank and Switzerland can be a MIGA member (Article 4).

MIGA will promote investment flows MIGA Convention participating countries (especially developing countries). The way is to provide guarantees against non-commercial risk on capital investment (direct) in a participating country (host country) that came from countries other participants (investors).

Non-commercial risk is the risk of (i) monetary transfer, (ii) the revocation or nationalization of property and similar actions, (iii) breach of contract (breach of contract), and (iv) war or civil war (Article 11 a), but it can also be extended provided that the guarantee is requested by the host country and investors.

Indonesia has ratified the convention signed in Washington DC on June 27, 1986 and put it in the form of Presidential Decree No.31/1986 on the Ratification of MIGA Convention.

Judge Perception?

If we look, the international award granted claims of foreign investors due to the suspension or cancellation of projects in Indonesia is more of an international perception of the poor in the Indonesian legal certainty than the legal substance of the suspension or cancellation of the reasons the project itself.

Because, in fact we have a strong reason and fundamental to review various private power projects that were approved in the Suharto era. Whether those force majeur reasons for the crisis that hit Indonesia and indicated the reasons of corruption, collusion or nepotism ("CCN").

During his rule, Suharto has approved 27 private power contracts are handled by foreign companies in partnership with local companies owned by Suharto's family and cronies. Several of contracts clumsiness began to unfold after his downfall.

It is said that 20 of the 27 private power projects were not feasible. Even sometimes a tricky course (because not necessary). Private electricity prices to buy comparatively expensive PLN ie between U.S. $ 5.6 cents (Rp504) to U.S. $ 8.6 cents (Rp774) per kWh. Though the price of PLN electricity only Rp161 per kWh. In comparison, private electricity prices in Thailand, Laos, and Philippines as well, each for U.S. $ 4.2 cents, U.S. $ 1.29 cents and 5.3 cents (Trust No.34 Year II).

Clearly, the transaction is detrimental Indonesia. Therefore, although no reason was the economic crisis the Indonesian government should have a strong legal basis to review various private power projects are for the sake of Indonesian consumers.

Moreover, the IMF has also recommended the cancellation or suspensions of project reinforced by economic crisis conditions. That is, not the subjective reasons for the government of Indonesia alone; let alone PERTAMINA.

However, what power, bad image of law enforcement in Indonesia are now the 'attractiveness' of the International Arbitration to consider punishing RI. We must unite to provide an adequate explanation. It was this time, and Indonesia in the correct position.

Hopefully PERTAMINA case that we all can realize that sometimes perception is more important than objective conditions. Therefore, the perception is built in a long period.

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