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The ISDS Mechanism and Standards of Protection in the Investment Treaty
Get PDFInternational investment activities require legal certainty for investors. While the host country also needs legal certainty related to state sovereignty, legal protection is needed for investors and the host country to realize legal certainty in investment activities. Countries in the world entered into investment agreements to provide legal protection for investment activities. In investment agreements, generally, there are requirements to comply with the national law of the host country to get protection from investment agreements. This study aims to review the implications of not fulfilling the obligations in the investment agreement to apply the benefits contained therein, specifically regarding ISDS mechanism and protection standards. This study finds that the impact of the non-fulfillment of these obligations on the ISDS mechanism depends on the admission clause specified in the Bilateral Investment Treaty (BIT). On standards of protection, it refers to general principles of international law and arbitration decisions, investments that violate these obligations do not receive international legal protection. This research suggests the Indonesian Government tighten the admission clause in the BIT to prevent investors from using the ISDS mechanism in the BIT and to specify the impact of violating obligations to comply with the national laws of the host country.
KEYWORDS: International Investment Law, Standards of Protection, Bilateral Investment Treat
Legal Aspects of Artificial Intelligence on Automated Decision-Making in Indonesia: Lessons from the European Union, the United States, and China
Get PDFThis paper analyzes the importance of Indonesia's comprehensive legal framework on automated decision-making empowered by Artificial Intelligence, comparing it to the European Union, the United States, and China. Specifically, this paper inquires about the status quo of the legal protection of automated decision-making In Indonesia. The analysis highlights profiling in an automated decision-making system with the following discussion about personal data protection. In this context, the European Union's member states set out the General Data Protection Regulation (GDPR) that prohibits automated decision-making to a certain extent. In the United States, the practice of automated decision-making is rather usual. Simultaneously, China takes an exceptional measure instead and develops this automation through a social credit system. The analysis concludes that Indonesia has weak legal protection towards personal data and profiling, which later becomes the basis in facilitating automated decision-making. The provision of automated decision-making and profiling is the absolute bare minimum to Indonesia's Personal Data Protection Bill due to insufficient legal certainty. In the end, it is paramount for lawmakers to consider a comprehensive regulation on automated decision-making by adopting the European Union's GDPR framework.
KEYWORDS: Artificial Intelligence, Automated Decision-Making, Personal Data Protection
The Scientific Principle of Food Safety in the Agreement on Sanitary and Phytosanitary Measures
Get PDFSanitary and Phytosanitary (SPS) is a procedure to protect human, animal, or plant life or health set in Article XX(b) of the General Agreement on Tariffs and Trade (GATT). This Agreement authorizes the government to arrange a policy, but this domestic measure often results in a trade dispute. Therefore, this study enquires to extent measure on the scientific principle in food safety comply with Article XX (b) GATT. In the context, each WTO Member State has two options to show that measures of handling problems related to SPS are based on science, as outlined in Article XX (b) GATT must be measured by the scientific principle. First, actions can be based on international standards so that each member state must adopt the Codex Alimentarius Commission. Second, actions can be based on Scientific Risk Assessment. SPS Agreement recognizes states' right to maintain standards that are more stringent than international standards, or because international standards do not exist. The relevant scientific principle are useful for measurable events with scientific information beforehand so that the existing measures can guide the state's policy. In vice versa, members may temporarily determine sanitary or phytosanitary actions based on available information.
KEYWORDS: Scientific Principle, Food Safety, SPS Measures, WTO
Transfer Pricing Terhadap Penerimaan Negara Pada Sektor Pajak di Indonesia
Get PDFThe development of the current globalization has made large companies throughout the world to plant their branch companies out of their country. Their companies are called Multinational Companies. The negative impact caused by this development is that with the presence of branches in various countries, a company in a country can move some or all of the profits they earn to other countries that are still in the same parent company. Transfer of profits is done from countries that have high tax rates to countries that have low tax rates between companies that have special relationships. This is done so that the income tax is reduced. This event can be called transfer pricing or transfer pricing between parties that have special relationships. This article examines how the process of transfer pricing and legal consequences arises from tax avoidance events through transfer pricing. Transfer pricing greatly affects the amount of state income, especially in the income tax sector because the tax burden paid by companies is not following the profits they earn. State losses resulting from transfer pricing events reach 1300 trillion annually. But the weakness of institutions in the Tax Directorate General makes transfer pricing events grow. This article concludes with a suggestion that the government further increase tax control by the subject of Permanent Business Forms tax so that taxpayers become law-abiding.
KEYWORDS: Transfer Pricing, Tax Avoidance Practices, Income Tax
Outlining Gay's Right to Health in Jember, Indonesia: Challenges and Opportunities
Get PDFIncreased HIV prevalence in gay populations is a warning that needs to get government attention. AIDS prevention programs in gay populations have been implementing various methods to change high-risk behavior. However, HIV prevalence in gay populations continues to rise. The Indonesian Constitution affirms human rights, including the right to life, the right against discrimination, and other fundamental rights protected by the state. The research results showed that the fulfillment of the right to health in gay is not going well or less effective. It was evidenced by the percentage of gay that reaches out to health services was still limited. Gays were reluctant to access health services because of the lack of confidentiality and privacy of the services of health workers, the general public, and the limited facilities. Besides, stigma and discrimination are still often received both from health workers and families and communities. They worried other gays would know the result of the test of VCT. There is a need for standardization of services at all subdistrict health centers and hospitals providing VCT services for gay in Jember.
KEYWORDS: Constitutional Rights, Human Rights, the Right to Health
Geographical Indications in Trade Commodities for Promoting Sustainable Economic Development in Indonesia
Get PDFThe recent COVID-19 pandemic has disrupted many countries. It leads them to imbalance conditions in various sectors, particularly in the economic sector due to the shifting of people's habits. Amidst the recession, Indonesian local horticulture commodities increase in rates, supporting Indonesia's revenue. In Indonesia, abundant natural resources with numerous potential Geographical Indications (GI) need the government and other related parties' intense role. It currently results in weakness in many ways to support sustainable economic development. This study aims to discuss the protection of Geographical Indications both in national and international laws, and analyze certain vital steps to efficiently utilizing Indonesia's GI as trade commodities. The paper will mainly discuss Geographical Indication legal protection and ways to utilize it for the country's economy. The study finds that the legal protection of GI in Indonesia is still considered weak and lacks in parties' active involvement in managing GI-based trade commodities and products. The research concluded that to strengthen GI protection in Indonesia, related party involvement and continuous monitoring and promoting are necessary to be done. Furthermore, the advice is to increase local community awareness by government and non-governmental organizations toward GI potential. It includes developing an efficient protection and management system that fully maximized each party's ability to execute its responsibility.
KEYWORDS: Geographical Indications, Intellectual Property, Economic Development
Living Constitution in Indonesia: The Study of Constitutional Changes Without A Formal Amendment
Get PDFThe discussion regarding the living constitution in Indonesia has been increasingly important. The importance of this discussion deals with to the extent it has developed, particularly after Indonesia's constitutional amendment from 1999 to 2002. The current study of constitutional change in Indonesia, as a result of the constitutional amendment during Reformation, adds an emphasis on its change without a formal amendment. Thus, this paper will discuss the urgency of enforcing the amended 1945 Constitution in the lens of the living constitution and how to uphold it through the living constitution. This study uses doctrinal research and, in examining the case, it uses the statutory and conceptual approaches. The result of the study shows that the urgency of upholding the constitution through the living constitution relies on the concept of the living constitution that can dynamize the 1945 Constitution. In response to difficulties to formally amend the 1945 Constitution that depends on political will and rigid juridical condition, there should be a shift in the method of interpretation of the constitution by the Constitutional Court judges, from originalism to the living constitution. The enforcement of the 1945 Constitution through the living constitution can apply the constitutional convention and the interpretation by constitutional judges. This study suggests that the Government and the House of Representatives and other relevant state institutions can use the living constitution, by taking into account the constitutional convention is a source in the organization of the state to patch up the weaknesses of the constitution.
Keywords: Living Constitution, Constitutional Changes, Formal Amendment
Law Enforcement Issues and Regulations in Undelimited Maritime Boundaries: An International Law Perspective
Get PDFMaritime boundaries play an essential role in determining the state's sovereignty, rights to exploit natural resources, maintain security, and territorial integrity. However, maritime boundaries often overlap between states, which can amount to conflicts. Maritime areas whose boundaries have not been agreed between neighboring states are referred to as “undelimited maritime boundaries†(UMB). Indeed, Article 74 of the United Nations Convention on the Law of the Sea 1982 has set out rules regarding UMB. However, conflicts still arise between states; for instance, the conflict related to law enforcement between Indonesia and Viet Nam in the South China Sea. This study aims to analyze law enforcement issues and the rights and obligations of states in UMB under international law. This study uses normative legal research which applies the method of legislative, conceptual, and analytical approaches. This study finds that states involved in UMB are prohibited from carrying out excessive law enforcement since it could trigger more conflicts and will hamper the ongoing final maritime delimitation negotiation process. In order to ensure zero conflicts during the negotiation process, this paper recommends that Indonesia should make every effort to enter into a comprehensive provisional arrangement about UMB with its neighboring states.
Keywords: International Law, Law Enforcement, Undelimited Maritime Boundaries
Theoretical and Conceptual Reflection Regarding Corporate Criminal Responsibilities Influencing the Formulation of Laws
Get PDFIn Indonesia, the development of the corporation as the subject to criminal acts takes place outside the Criminal Code, regulated in special legislation. While the Criminal Code itself still adheres to the subject of criminal acts in the form of people, the corporation (juridical person) appears as a subject that can commit a crime and should also be accountable in criminal law. However, this condition has not been realized concretely in our Criminal Code. The formulation policy regarding corporate criminal liability for victims of corporate crime that exists or is currently in force has not been able to realize the corporate criminal liability. Although there are sanctions that can be imposed on corporations, most of these provisions only protect potential victims and are not responsible for actual or real victims. In other words, the current formulation policy has not been able to ensnare and impose criminal sanctions on corporations who commit crimes, especially criminal sanctions which are oriented to the fulfillment or restoration of victims' rights in the form of compensation payments after the crime. This paper will discuss the position and the responsibility of the corporation as a subject of criminal law in Indonesia and analyze policy formulation of the Criminal Code and the draft of the Criminal Code that related to corporate responsibility as a legal subject.
Keywords: Corporate Criminal Responsibilities, Criminal Law, Corporate Responsibility
Examining Recall of the House Member: How Does It Impact on Eradicating Corruption in Indonesia?
Get PDFThis study aims to discuss the existing contentious recall policy that becomes the legitimate reason to replace or retire the House member proposed by political parties. The discussion also examines to what extent recall, in practice, whether it enables the promotion of Indonesia's anti-corruption agenda. Through the recall, political parties can withdraw their members in the House, either in the form of dismissal or changing positions before the end of the term of office of members who sit in the House of representatives. This study finds that the existing recall policy impedes democracy and negates how to eradicate corruption in Indonesia. As a result, the current policy needs an option to ensure that recall will work as it is expected. Therefore, this alternative should include constituents to propose recall, which will disrupt the existing parties' domination, resulted in a more participatory system, and it reflects the more reciprocal ways to link people, parties, and the House in Indonesian politics. The judiciary's role is another essential aspect to highlight, in which the process and settlement of the recall may involve the Constitutional Court as the hub of the political and constitutional settlement.
KEYWORDS: Indonesian Democracy, Anti-Corruption Agenda, Recall Policy, Political System