Legal Opinion
By: ATTORNEY RIKHARDUS IKUN, S.H., M.H., C.MSP., C.NSP., C.LFS., C.CPr.
Investment is one of the economic activities protected by law in Indonesia. However, in practice, investment relationships often give rise to problems, such as breach of contract, embezzlement of investment funds, fraud, profit sharing that does not comply with the agreement, and even unilateral seizure of assets.
1. Legal Basis
Several legal provisions that can serve as the basis for resolving investment disputes include:
- Article 1320 of the Civil Code regarding the validity of agreements.
- Article 1338 of the Civil Code regarding the principle of freedom of contract and the binding force of agreements.
- Article 1238 of the Civil Code regarding negligence or breach of contract.
- Article 1365 of the Civil Code regarding unlawful acts.
- Law No. 25 of 2007 on Investment, as amended.
- Criminal provisions related to fraud and embezzlement if elements of a criminal offense are found.
2. Steps for Resolving Investment Disputes
The resolution of investment disputes should be carried out through several stages:
1. Document review: Examining the investment agreement, transfer records, correspondence, financial statements, and asset ownership documents.
2. Formal notice: Issuing a legal warning to the party in breach of contract to fulfill its obligations.
3. Negotiation or mediation: Seeking an amicable resolution based on mutual agreement between the parties.
4. Civil lawsuit: If an amicable settlement cannot be reached, the aggrieved party may file a lawsuit for breach of contract or tort.
5. Criminal complaint: If there is sufficient preliminary evidence of fraud, embezzlement, or other criminal acts, the victim may pursue criminal charges in accordance with the law.
3. Legal Conclusion
Every investment dispute must be resolved based on legal facts, the terms of the agreement, and valid evidence. Not all investment failures constitute criminal offenses, as a distinction must be made between business risks, breach of contract, tortious acts, and criminal offenses.
Therefore, investment disputes may be resolved through non-litigation or litigation channels—whether civil or criminal—provided the elements of a criminal offense are met.
Key Principle: Investments must be grounded in good faith, transparency, legal certainty, and the protection of all parties’ rights. Investments, which are intended to be a means of economic growth, must not become a vehicle for fraud and loss to investors.
Note: This legal opinion is general in nature, and its application must be adapted to the specific facts and relevant investment documents.
LAW FIRM JAMES RICHARD ANP PARTNERS.
DPW PERADI UTAMA BALI.
