BANI Duality: Between the Original and the Renewed One
On 8 September 2016, BANI Pembaharuan or Renewed BANI was launched in Indonesia. Its name is very similar to that of the already existing arbitration center, BANI (Badan Arbitrase Nasional Indonesia). Up to now, BANI has been regarded as the most prominent Indonesian arbitration institution.
BANI Pembaharuan claims that it is actually a transformation of the existing BANI. According to BANI Pembaharuan, the original BANI was based on a statute that stipulates that the original BANI founders have the authority to appoint the governing board of BANI. However, by 2015, all of the original BANI founders had passed away and BANI Pembaharuan initiators felt the need for BANI to improve the governance of the institution by among other things ensuring its status as a legal entity. They also added that BANI Pembaharuan has asked the original BANI to unify but acknowledged that they have not reached an agreement on the terms of the unification. BANI Pembaharuan further claims that its status as a legal entity has been approved by the Minister of Law and Human Rights.
In rebuttal, as explained in their media announcement dated 15 September 2016, the board of the original BANI does not recognize BANI Pembaharuan and has stated that BANI Pembaharuan is unlawfully using its name. The board of the original BANI also insisted that although nothing in the law requires BANI to have a legal entity status, it is an institution that has articles of association/statute, an organization structure and a working plan like a normal organization. The board of the original BANI also argued that BANI has gained international recognition. It was among the initiators of regional forums such as the Asia Pacific Regional Arbitration Group and Regional Arbitral Institutes Forum. It is also a member of the International Council for Commercial Arbitration.
Given BANI duality, parties whose existing arbitration clause refers to BANI and intend to choose BANI as their dispute resolution forum should take legal advice on the possible consequences if they refer a dispute to BANI.