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Dispute Resolution between Business Consumers and Consumers

through Arbitration in the Consumer Protection Perspective

Yuyut Prayuti

Universitas Islam Nusantara Bandung

JL. Soekarno Hatta No. 530, Bandung, Jawa Barat

Keywords: Dispute Resolution, Business Consumers, Arbitration, Consumer Protective

Abstract: The background of the problem is; what is the Process and Ways of Resolving Disputes between Business

Actors and Consumers through Arbitration in the Consumer Protection Perspective in Indonesia, What is the

Effectiveness of the Implementation of Dispute Resolution through Arbitration in the Consumer Protection

Perspective in Indonesia? The method of approach in this study uses the Normative Juridical approach, the

specifications of this study are analytical descriptive. Conclusions are; The UUPK Law also regulates dispute

resolution through the court and outside the court. One way to resolve disputes is through arbitration and

alternative dispute resolution is regulated in Law No. 30 of 1999. There are several ways to resolve disputes,

namely Arbitration, Consultation, Negotiation, Conciliation Mediation, Expert Assessment. The length of the

settlement process through Arbitration is 180 working days the Verdict is Final and Binding so that legal

certainty and a sense of justice obtained by the Parties is more guaranteed in the perspective of Consumer

Protection, Effectiveness of Arbitration in the context of Consumer Protection is more effective, efficient, fast

and low cost compared to settlement through the Court because it is vulnerable to a long settlement due to the

burden of cases that have accumulated, besides those parties who do not agree can make Appeals or

Reconsideration Efforts.

1 INTRODUCTION

In the provisions of Article 5 of Law Number 30

Year 1999 it is stated that: “Disputes that can be

resolved through arbitration are only disputes in the

field of trade and rights which according to the laws

and regulations are fully controlled by the parties to

the dispute”.

Settlement or scope of disputes between business

actors and the public, in this case consumers, in

addition to litigation or through judicial channels, in

laws and regulations can be done by using various

methods of settlement, according to Law No. 30 of

1999 concerning Arbitration and Settlement of

disputes can be sought in advance through the

Alternative Pathways for Dispute Settlement and

arbitration, while in the Consumer Protection Act

who feel disadvantaged due to the dispute is through

the Consumer Dispute Settlement Agency or BPSK.

There are several reasons behind the emergence

of interest and attention to ADR (Alternative Dispute

Resolution) and arbitration: First, the need to provide

dispute resolution mechanisms that are more flexible

and responsive to the needs of the parties to the

dispute; Second, to strengthen community

involvement in the dispute resolution process; and

third, expanding access to achieve or realize justice

so that each dispute that has its own characteristics

which sometimes does not fit into one form of

settlement, will be suitable with another form of

settlement, so the parties can choose the best

mechanism (Suparto, 2016).

The Consumer Protection Act, explains, among

others: taking the Dispute Resolution outside the

court by adopting a Solution through Negotiations,

Consultations, Reconciliation, Mediation and Expert

Assessments. As stated in Article 45 paragraph (2)

which reads: "Settlement of consumer disputes can be

taken through the court or outside the court based on

the voluntary choice of the parties to the dispute".

Dispute resolution outside the Court does not rule out

the possibility of dispute resolution through Peace by

establishing a win-win Solution regarding the form of

an agreement regarding the amount of compensation.

Based on the description in the background, the

researcher gave the title of this research is “Dispute

174

Prayuti, Y.

Dispute Resolution between Business Consumers and Consumers through Arbitration in the Consumer Protection Perspective.

DOI: 10.5220/0009989600002905

In Proceedings of the 8th Annual Southeast Asian International Seminar (ASAIS 2019), pages 174-177

ISBN: 978-989-758-468-8

Resolution Between Business Consumers And

Consumers Through Arbitration In The Consumer

Protective Perspective”.

2 METHODS

The method of approach in this study uses the

Normative Juridical approach, which is an approach

that bases on a review of legal views and uses

secondary data or library material as library material

as the main material of research (Aminudin, &

Asikin, 2004).

The specification of this research is analytical

descriptive, namely research that focuses on solving

existing problems in the present. This descriptive

research is intended to describe all data obtained

relating to the research title in a clear and detailed

manner which is then analyzed in order to answer the

existing problems. Researchers in this study want to

obtain a complete and clear picture of dispute

resolution between business actors and consumers in

the Consumer Protection Perspective.

3 DISCUSSION

3.1 Process and Methods of Settlement

of Disputes between Business

Actors and Consumers through

Arbitration in the Consumer

Protection Perspective in Indonesia

Consumer protection is any effort that guarantees

legal certainty to provide protection to consumers.

(Article 1 number 1 of Law No. 8/1999 concerning

Consumer Protection). The legal certainty includes all

efforts to empower consumers to obtain or determine

their choice of goods or services needs and to

maintain or defend their rights if harmed by the

behavior of business actors as providers of consumer

needs (Nasution, 2014).

Consumer Disputes can be resolved outside the

court and through the court. Out-of-court dispute

settlement is a solution through an institution tasked

with resolving disputes between consumers and

business actors, namely the Consumer Dispute

Resolution Agency (BPSK) or other Forums to reach

an agreement (Sidabalok, 2014).

Law Number 30 Year 1999 Concerning

Arbitration and Alternative Dispute Resolution, the

forum in question is the Negotiation Forum,

Consultation, Conciliation, Mediation and Expert

Assessment and Arbitration, thus opening three

forums and ways to resolve consumer disputes,

namely:

1. Settlement of consumer disputes through

immediate demands through the Forum of

Negotiations, Consultations, Conciliations,

Expert Assessments and Arbitrations;

2. Settlement of disputes through the

Consumer Dispute Resolution Agency or

BPSK;

3. Settlement of consumer disputes through the

Courts.

The process of Settlement of Consumer disputes

through Arbitration can be taken and carried out

Settlement of disputes through arbitration which

results in a forced decision which is handed down by

a third party, namely the arbitrator or the arbitrator's

panel. The arbitration award is final and has

permanent legal force and is binding on the parties.

Arbitration award is final means that the arbitration

award is final and therefore cannot be appealed,

appealed, or reviewed.

The process of dispute resolution through

arbitration is as follows: a) Starting with the

registration and submission of an application for

arbitration by the parties through and addressed to the

BANI secretariat; b) In the case of a dispute to be

examined and decided by the arbitral panel, the

Petitioner and Respondent must first appoint an

arbitrator; c) The BANI Secretariat will study the

application for arbitration and the contract for the

application of arbitration in which the purpose is

whether BANI has the authority to examine and

decide on the arbitration application; d) The BANI

Secretariat will send a notification letter regarding the

amount of costs that must be borne by the parties to

conduct an arbitration at BANI; e) After the parties

pay the fees, BANI will send a summons for the case

examination; f) The arbitral tribunal must first make

mediation efforts between the parties for a period of

40 working days but can be extended according to the

agreement of the parties; g) If mediation is not

reached, the Arbitral Tribunal can directly examine

and decide upon the Case which becomes their

authority within 180 working days.

While the Process of Settlement of disputes

between Business Actors in the world of business and

Commerce with consumers or the public using

Consultation, Negotiation, Mediation, Conciliation,

and Expert judgment referring to Law No.30 of 1999

Concerning arbitration and APS is more Flexsible

because the nature of APS is to find a Solution or win-

win Solution is not deciding who is wrong or right so

Dispute Resolution between Business Consumers and Consumers through Arbitration in the Consumer Protection Perspective

175

that the agreement will benefit the parties, neither

party feels defeated in the dispute.

3.2 Effectiveness of the Application of

Dispute Resolution through

Arbitration in the Consumer

Protection Perspective in Indonesia

The patterns of settlement of consumer disputes

outside the court desired by the UUPK, are the right

choice, because the formulated solution contains a

solution that satisfies the disputing party. According

to IBR Supancana (2006), among the factors that

constitute weaknesses in competitiveness to attract

direct investment in a country is the existence of an

effective dispute resolution mechanism which is one

of the factors taken into account before deciding to

undertake investment activities.

The effective dispute resolution mechanism

involves: a) Dispute resolution forums, whether

through national courts, national and international

arbitration bodies, or other alternative dispute

resolution forums; b) Effectiveness of the validity of

the law applied in the dispute; c) Fast decision making

process and reasonable cost; d) The neutrality and

professionalism of judges, arbitrators or third parties

involved in the decision making process; e) The

effectiveness of the implementation or

implementation of court decisions, arbitration bodies

and other dispute resolution bodies; f) Compliance of

the parties to the decisions made.

The parties to the dispute can choose other ways

in resolving the dispute they face, if the litigation path

makes their dispute takes a long time, namely by

Settling through a non-litigation route or Alternative

Dispute Resolution as set out in Law Number 30 of

1999 Arbitration and Alternative Dispute Resolution

(hereinafter abbreviated as Arbitration Law and

APS). Alternative Dispute Resolution (hereinafter

abbreviated as APS) is a dispute resolution process

carried out outside the court (Nurhayati, 2009).

The effectiveness of the application of arbitration

over the court can at least be seen in terms of: First,

the Parties to the dispute can choose their own

arbitrators. Second, the implementation of the arbitral

tribunal guarantees unwanted secrecy and publicity.

Third, the Final and Binding Arbitration Award.

Fourth, fast and cheap. Fifth, the parties can

determine the choice of law, as well as the process or

arbitration held. Sixth, Arbitration procedures are

more informal than court procedures. Seventh, the

Arbitrator is also not obliged to follow the arbitrator's

previous decision. Eighth, the arbitration decision has

the power of the Executorial through the District

Court.

4 CONCLUSION

The UUPK Law also regulates dispute resolution

through the court and outside the court. One way to

resolve disputes is through arbitration and alternative

dispute resolution is regulated in Law No. 30 of 1999.

There are several ways to resolve disputes, namely

Arbitration, Consultation, Negotiation, Conciliation

Mediation, and Expert Assessment. The length of the

settlement process through Arbitration is 180

working days, the Verdict is Final and Binding, so

that legal certainty and a sense of justice obtained by

the Parties are more secure in the Consumer

Protection perspective.

Effectiveness of the implementation of arbitration

in the context of Consumer Protection is more

effective, efficient, fast and low cost compared to

settlement through the Court because it is vulnerable

to a long settlement time due to a burdensome case

load, besides that the parties who disagree can make

an Appeal, Cassation or Review Effort Back.

The Suggestions in this article is: a) There is a

need for legal certainty that when the parties in

choosing a dispute resolution between the business

actors of the community or consumers through

Arbitration or BPSK, the results of the decision can

not be tested in other Judicial institutions; b) For

Settlement through Arbitration or Consumer Dispute

Settlement Agency (BPSK) the results of the

Decision issued through the dispute settlement

agency can be done by the Executorial itself not

through the Court.

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