A. Preliminary
Transactions or trade links many forms, from which a relationship buying and selling of goods, shipping and receiving goods, the production of goods and services pursuant to acontract and others. All transactions are loaded with the potential to give birth to a dispute.Generally, trade disputes are often preceded by the settlement of disputes by negotiation.If the way of settlement negotiations fail or not work, then pursued other means such as thesettlement of disputes through the courts or arbitration. Submission of the dispute, either tocourt or to arbitration, often based on an agreement between the parties. Usual step taken is to make an agreement or enter into a dispute resolution clause in the contract oragreement that they make, either to court or arbitration body. The legal basis for thedispute resolution forum or agency that will handle the dispute is the agreement of the parties. The agreement was put either at the time the contract is signed or after thedispute arises. In addition to the forum of a court or arbitration, the parties may also submittheir disputes to alternative dispute resolution, commonly known as ADR (AlternativeDispute Resolution).
Transactions or trade links many forms, from which a relationship buying and selling of goods, shipping and receiving goods, the production of goods and services pursuant to acontract and others. All transactions are loaded with the potential to give birth to a dispute.Generally, trade disputes are often preceded by the settlement of disputes by negotiation.If the way of settlement negotiations fail or not work, then pursued other means such as thesettlement of disputes through the courts or arbitration. Submission of the dispute, either tocourt or to arbitration, often based on an agreement between the parties. Usual step taken is to make an agreement or enter into a dispute resolution clause in the contract oragreement that they make, either to court or arbitration body. The legal basis for thedispute resolution forum or agency that will handle the dispute is the agreement of the parties. The agreement was put either at the time the contract is signed or after thedispute arises. In addition to the forum of a court or arbitration, the parties may also submittheir disputes to alternative dispute resolution, commonly known as ADR (AlternativeDispute Resolution).
B. The Parties in International Trade Dispute
As we all know that the subject of law in international trade law, namely the State, companies or individuals and others. In the following description, the parties to the discussion is limited to the merchant (individual or legal entity) and State. Due to the nature of international trade law is a cross-border, pembahasannyapun restricted only between traders and merchants, then merchants and foreign countries.
1. Dispute Between Merchants and Traders.
As we all know that the subject of law in international trade law, namely the State, companies or individuals and others. In the following description, the parties to the discussion is limited to the merchant (individual or legal entity) and State. Due to the nature of international trade law is a cross-border, pembahasannyapun restricted only between traders and merchants, then merchants and foreign countries.
1. Dispute Between Merchants and Traders.
Dispute between two traders is a dispute that often and most common. Disputes like this happen almost every day. The dispute was resolved through a variety of ways. The way the settlement is dependent on the freedom and the agreement of the parties.
Agreements and freedom of the forum court will determine who will resolve their dispute. In addition the agreement and this freedom will determine what law will be applied and implemented by the agency
courts adjudicate disputes. Agreements and freedom of the parties is an essential thing.Law respecting an agreement and freedoms. Of course, there is agreement and kebabasan limits. Usually the limits are not violated the Act and public order.
2. Dispute Between Merchants and Foreign Countries
Disputes between traders and the State is also not an exception. Commercial contracts between merchants and the state already prevalent signed. Such contracts are usually in the amount (value) is relatively large. Problems may arise related to the concept of immunity of a State that is recognized by international law. The concept of immunity is most traders do not affect the decision to determine the settlement of disputes. The main problem is with the concept of this immunity, a State in any situation will never be tried before a foreign judicial bodies. Nevertheless, international law was flexible. International law does not recognize the attribute sematamata State as a subject of international law is perfect (par excellence). International law also respects individuals (traders) as a subject of international law is limited. Therefore, in developing international law imperii jure sense, the State acts in public in his capacity as a sovereign State, as well as gestiones jure, ie the actions of the State in civil or commercial areas. Therefore, such actions were none other than the State acts in its capacity as the peorangan (dealer or private), so that such actions could be considered as actions as appropriate ordinary traders. Therefore, such actions, which led to the dispute can be resolved before the general judicial bodies, arbitration and others. Instead countries who submitted a rebuttal that the judiciary has no jurisdiction to adjudicate the State as a party in a business dispute, are usually rejected.Judicial bodies generally embraced the concept of this gestiones jure.
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