Thesis Published

ANALYSIS OF INTERNATIONAL ARBITRATION BASED ON MAQASHID SHARIA: A REVIEW OF LAW NUMBER 30 OF 1999

Shadrina, Gafita Almas
Abstract
Regulations related to International Arbitration in Indonesia are governed by Law No. 30 of 1999. However, in the execution of its decisions, there are four stages (submission for registration, application for execution, issuance of an execution order (exequatur), and the enforcement of the decision), each of which encounters implementation challenges, leading to inconsistencies, ambiguities, and multiple interpretations. These issues result in legal uncertainty and disadvantage the involved parties, failing to reflect justice and welfare. In Islam, parties involved in arbitration (tahkim) are entitled to legal certainty and welfare, which are the primary objectives of maqashid sharia for the well-being in this world and the hereafter. This study aims to analyze maqashid sharia and integrate it with legal practices in the enforcing international arbitration decisions in Indonesia by improving implementation stages, regulations, and developing the competencies of involved legal practitioners. This research is a qualitative study with an empirical juridical approach. In data collection, the researcher employs literature study, documentation, and interviews. The Atlas.ti software is used in this study to facilitate problem mapping by coding and analyzing text-based data. The research findings indicate that: 1) The enforcement of international arbitration decisions in Indonesia involves stages with complex issues when viewed from Law No. 30 of 1999, starting from the registration submission to the execution stage. 2) Additionally, in the requirement to meet public order, there are multiple interpretations in understanding public order in the enforcing international arbitration decisions; some interpret it as limited to written laws in Indonesia, while others interpret it with the boundaries of societal norms and values. 3) Addressing these implementation obstacles, maqashid sharia seeks to integrate several of its principles to improve the enforcement of international arbitration decisions, such as: the principles of justice and certainty, saddu dzari'ah (blocking the means to harm), consideration of legal substance in legal determinations, and general welfare, which should ensure the well-being of the involved parties. Considering the challenges and findings, it is recommended that the government improve regulations in the enforcement of arbitration decisions, both in the application of laws by deeply considering legal analysis and maqashid sharia as a strong basis for regulatory improvements. Additionally, legal practitioners and law enforcers should enhance their competencies to provide the best and most substantial decisions for the parties involved, ensuring fairness.
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