INTRODUCTION

Not long ago, there were three consecutive international events held on August 8-10, 2023,
inviting the legal community in Indonesia, especially in the field of Private International Law
(PIL), to become more acquainted with the Hague Conference on Private International Law,
commonly known as (“HCCH”).1 Although HCCH is an intergovernmental international
organization equivalent to the United Nations (UN), its name is not as widely recognized as the
UN, at least in Indonesia. Indonesia has not yet become a member state of the HCCH. 2

In the present study, an examination will be undertaken to assess the desirability and feasibility
of Indonesia's accession to the Hague Conference on Private International Law (HCCH) versus
the option of selectively ratifying specific conventions within the HCCH framework. This analysis
aims to provide an informed perspective on the potential advantages and challenges associated
with Indonesia's potential membership in the HCCH or targeted convention ratifications.

DISCUSSION
1. APOSTILLE
a. Introduction to Apostille
Apostille stands out as one of the most successful and esteemed conventions
under the HCCH. (a) It has garnered accession from a larger number of
Contracting Parties, spanning both developed and developing nations,
surpassing any other HCCH Convention, and this number is continually
increasing. (b) Offering a straightforward resolution to the challenging
administrative issue of consular legalization of public documents, it has been a
crucial facilitator for international trade and commerce and remains so. (c) It has
played a pivotal role in aiding millions of individuals worldwide in managing their
cross-border personal and business affairs.3

This convention aims to eliminate the requirement for diplomatic or consular

legalization of foreign documents that are of a public nature. The background for
the establishment of this convention includes the evolving relationships among
citizens, including civil-law relationships. Often, these legal relationships
necessitate or are based on public documents. In the practices of nations, public
documents originating from abroad typically need prior legalization to be valid
within their jurisdiction.

In alignment with the most recent updates, there are presently ongoing efforts to
streamline the legalization process for foreign public documents, resulting in legal
outcomes. This is being facilitated through the issuance of Presidential Decree
Number 2 of 2021, addressing the Convention on the Abolition of Legalization of

1 https://law.ui.ac.id/the-hague-conference-on-private-international-law-dan-kepentingan-indonesia-oleh-
dr-priskila-pratita-penasthika-s-h-m-h/
2 Ibid
3 https://www.elgaronline.com/edcollchap/edcoll/9781788976497/9781788976497.00034.xml
 Foreign Public Documents, commonly known as 'APOSTILLE.' Initially enacted
by President Joko Widodo on January 5, 2021, this decree adheres to the
provisions outlined in Article 12 of the Apostille Convention, which officially took
effect in Indonesia on June 4, 2022.4

b. The way forward for Apostille

There are several steps that need to be prepared by the Indonesian Government
in connection with the issuance of Presidential Regulation No. 2 of 2021
regarding the Ratification of the Apostille Convention, including:5
1. Due to the legal certainty, the government must prepare a national law to
further regulate what kind of document that must be included in the scope
of "Public Documents" which must use an apostille stamp. As a
consequence, countries that are members of the Apostille Convention
can deal with this legal certainty the same as other countries.
2. The Indonesian government is obliged to eliminate legalization
requirements for the use of Foreign Public Documents for domestic
regulations (for example, as regulated in Article 13 paragraph (4) letter C
of BPOM regulation No. 26 of 2018 concerning Electronic Integrated
Business Licensing Services in the Medicines Sector and Food)
3. The Indonesian Government must appoint a Competent Authority (CA),
which is an agency or entity authorized to issue the 'Apostille Certificate,'
for authenticating foreign public documents intended for use in Indonesia.
4. The Indonesian government needs to prepare state facilities, including
both infrastructure and supporting human resources, with an
understanding of issues related to the ratification of the apostille
convention, wherein International Private Law serves as its basic
knowledge.
5. The necessity for a comprehensive understanding of International Private
Law among all components of the nation and state, especially those in
legal professions, can be achieved if both public and private universities
make International Private Law a mandatory course in their Law Faculties
across the Republic of Indonesia.
6. Equally important is the role of representatives in the national parliament.
There is a need to enhance their insights and knowledge of International
Private Law as a logical consequence, supporting their crucial duties as
representatives, particularly those serving in the Commission overseeing
Law and Legislative Affairs in the Indonesian House of Representatives
(DPR RI).
7. The Indonesian government should actively promote the enactment of a
Law on International Private Law in Indonesia. The academic draft of this

4 Rudi Candra et al. (2022).

5 https://www.hukumonline.com/berita/a/indonesia-dan-konvensi-apostille-lt60472d0144eec/?
page=2#!>
 law has existed since 1983 and was revisited by the National Law
Development Agency (BPHN RI) in 2014-2015. Currently, there is an
ongoing extensive discussion of the bill on International Private Law in
Indonesia among relevant institutions, supported by the association of
scholars known as the Association of Observers and Instructors of
International Private Law (APPIHPI)

2. CHOICE OF LAW
a. Introduction to Choice of Law

The first “soft-law” instruments of the HCCH, are designed to promote party
autonomy in international commercial contracts. The principle recommends the
choice of applicable law in international contracts when one of the parties acts in
exercise of their business or profession. Its provisions are not applied to
consumer, employer, franchising, agency and distribution contracts.6

Regarding Freedom of Choice, a contract is governed by the law chosen by the

parties. The parties may choose: The choice may be made or modified at any
time. A choice or modification made after the contract has been concluded shall
not prejudice its formal validity or the rights of third parties. No connection is
required between the law chosen and the parties or their transaction.

The law chosen by the parties may be rules of law that are generally accepted on
an international, supranational or regional level as a neutral and balanced set of
rules, unless the law of the forum provides otherwise.

Moreover this convention regulates that a choice of law cannot be challenged

solely on the grounds that the contract containing the choice of law is invalid.

This principle of Choice of Law also recommends that the choice of law is not
subject to the rules of private international law of the law chosen by the parties
unless the parties explicitly determine otherwise.

Coercive rules and public order (ordre public) take precedence:

a. These principles shall not prevent courts from applying the legal
provisions of the place of dispute resolution that have a compelling nature
to take precedence regardless of the law chosen by the parties.
b. The law of the place of dispute resolution determines when the court may
or must apply or consider compelling rules from other laws to take
precedence.
c. The court may set aside the application of a provision of the law chosen
by the parties only if and to the extent that the consequences of its

6 Article 1 Choice of Law on Hague Convention

 application clearly conflict with the basic values of public order (ordre
public) of the place where the dispute is resolved.
d. The law of the place of dispute resolution determines when the court may
or must apply or consider the public order (order public) of a State whose
law will apply in the event that there is no choice of law.
e. These principles shall not prevent arbitration from applying or taking into
account public order (ordre public), or from applying or considering the
provisions of a law that has a compelling nature to take precedence other
than the law chosen by the parties, if the arbitration is required or entitled
to do so.

b. What is the way forward for Indonesia regarding this principle

As of current, Indonesia already promotes the HCCH principles in arbitration
centers. Given that the Hague Principles on Choice of Law constitute soft law,
Indonesia is not obligated to ratify them. However, this principle can serve as a
reference for anyone in formulating an agreement.

3. HAGUE MAINTENANCE OBLIGATION PROTOCOL

a. Introduction to Maintenance Obligation Protocol
The Twenty-First Session of the Hague Conference on Private International Law
on 23 November 2007 adopted both the Convention of 23 November 2007 on the
International Recovery of Child Support and Other Forms of Family Maintenance
(the “2007 Convention”), and the Protocol of 23 November 2007 on the Law
Applicable to Maintenance Obligations (the “Protocol”). The primary purpose of
the Protocol is to introduce uniform international rules for the determination of the
law applicable to maintenance obligations. It was decided that making applicable
law rules a part of the 2007 Convention was unrealistic due to key differences in
national legal systems. For instance, in many States of common law tradition or
in States operating administrative systems for the recovery of maintenance the
law of the forum is systematically applied to maintenance decisions. Further,
contrary to the 1956 and 1973 Hague Conventions (see supra, note 2), no
reservation is allowed under the Protocol.7

The Protocol, unlike the 2007 Convention which only applies in relations between
Contracting States, has an ergaomnes effect.8 That is, its rules will apply in a
Contracting State to the Protocol even if the applicable law is that of a non-
Contracting State. For instance, a creditor resident in a non-Contracting State
who initiates proceedings in a Contracting State (e.g., in the State of the debtor’s
domicile) will enjoy the benefit of the application of uniform rules favorable to the

7 Art. 27 Protocol
 creditor set out in the Protocol. Further, contrary to the 1956 and 1973 Hague
Conventions (see supra, note 2), no reservation is allowed under the Protocol.8

The scope of maintenance obligations of the Protocol is wider than the 2007
Convention, and determines the law applicable to maintenance obligations based
on any family relationship.9 Included in its scope are any maintenance
obligations which arise from a family relationship, parentage, marriage or affinity.9
However, The Protocol does not define “family relationship” or other terms. When
interpreting these terms and the Protocol, regard should be given by competent
authorities to the international character of the Protocol and to the need to
promote uniformity in its application.10

b. The rule on Maintenance Protocol

The main applicable law rule employed by the Protocol is the law of the creditor’s
habitual residence. This general rule has the advantages of allowing a
determination of the existence and amount of the maintenance obligation with
regard to the legal and factual conditions of the social environment in the country
where the creditor lives, of securing equal treatment among creditors living in the
same country, and of designating applicable law that will often coincide with the
law of the forum.11

The Protocol provides certain “cascading” subsidiary applicable law rules,

designed to favor certain maintenance creditors. These special rules are
designed to ensure that the creditor has the greatest possibility of obtaining
maintenance. The types of creditors who will benefit from these additional rules
include children who are owed maintenance by their parents (regardless of the
age of the child), any person who has not attained the age of 21 years who is
owed maintenance by persons other than parents (with the exception of
maintenance obligations arising between spouses, ex-spouses and parties to a
marriage which has been annulled), and parents owed maintenance by their
children.12

The Protocol provides a special rule for maintenance obligations between

spouses, ex-spouses, and parties to a marriage which has been annulled. 13 In
principle, in a break from the immutable connection to the law applied to the
divorce under Article 8 of the 1973 Convention, the law of the State of the
habitual residence of the creditor applies, subject, however, to an escape clause.
Either party may raise an objection to the application of the law of the State of
habitual residence of the creditor, after which point the court or authority seized
8 Art 27
9 Art 1(1)
10 Art 20
11 Art 3
12 Art 4 (1)
13 Art 5
 will have to conduct an inquiry into whether the marriage has a closer connection
with a law other than that of the creditor’s habitual residence (for example, inter
alia the spouses’ habitual residence or domicile during the marriage, their
nationalities, the location where the marriage was celebrated, and the location of
the legal separation or divorce). The Protocol includes novel features that
enshrine the possibility for the parties, with some restrictions, to choose the
applicable law to maintenance obligations. The parties make the procedural
agreements to designate the law of the forum and law applicable to a
maintenance obligation at any time.

The Protocol enumerates a non-exhaustive list of issues to which the relevant

applicable law will be applied, including: whether, to what extent and from
whom the creditor may claim maintenance; the extent to which the creditor
may claim retroactive maintenance; the basis for calculation of the amount of
maintenance, and indexation; who is entitled to institute maintenance
proceedings, except for issues relating to procedural capacity and
representation in the proceedings; prescription or limitation periods; and the
extent of the obligation of a maintenance debtor, where a public body seeks
reimbursement of benefits provided for a creditor in place of maintenance.

c. The way forward for Indonesia

Since the term ‘protocol’ is used for agreements less formal than those entitled
‘treaty’ or ‘convention’. A protocol signifies an instrument that creates legally
binding obligations at international law. In most cases this term encompasses an
instrument which is subsidiary to a treaty.14 Moreover, no reservation is allowed
under the Protocol. Indonesia does not urgently need to ratify this convention as
well as the protocol, since Indonesia already has the law In Indonesia, child
support is governed by Law No. 1 of 1974 on Marriage. Under this law, both
parents are responsible for the financial support of their children, or any other
child support law in Indonesia. Most Indonesians have a different perspective
towards marriages as well as child support, moreover around 87% of Indonesia's
population is Muslim that already have strict regulation regarding child support.

4. SERVICE CONVENTION
a. Introduction to Service Convention
Convention of 15 November 1956 on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matters (“Service Convention”).
Service is an essential part of any legal proceeding, but one that can be costly
and time-consuming in cross-border cases. The Service Convention seeks to
simplify this process, establishing a uniform framework designed to facilitate and
streamline the channels of transmission for judicial or extrajudicial documents to
be served abroad.

14 https://www.un.org/esa/forests/wp-content/uploads/2014/12/background-3.pdf
 The Convention provides for one main channel of transmission between
Contracting Parties, while preserving flexibility to use alternative channels. The
Convention deals primarily with the transmission of documents; it does not
address or comprise substantive rules relating to the actual service of process.

The Convention applies where: (i) a judicial or extrajudicial document is (ii) to be

transmitted for service from one Contracting Party to another, (iii) the address of
the person to be served is known, and (iv) the document to be served relates to a
civil or commercial matter (Art. 1). The Convention is exclusive, which means, if
these requirements are met, the transmission channels provided for under the
Convention must be applied. In relation to the requirement of transmission to
another Contracting Party, it is important to note that it remains for the law of the
forum to determine whether transmission abroad is necessary.

The main channel of transmission under the Convention is where an authority or

judicial officer competent in one Contracting Party transmits a request for service
to the Central Authority of the Contracting Party in which service is to be effected
(Art. 5). The request must conform to the Model Form annexed to the
Convention.

The Convention preserves the freedom of Contracting Parties to use alternative

channels of transmission, including through:
● diplomatic or consular channels (Arts 8 and 9);
● postal channels (Art. 10(a));
● direct communication between judicial officers, officials or other
competent persons (Art. 10(b)); and
● direct communication between an interested party and judicial officers,
officials or other competent persons (Art. 10(c)).

There is no hierarchy of the channels of transmission, and transmission through

one of the alternative channels does not lead to service of lesser quality. A
Contracting Party may object to the use of these alternative channels (Art. 10).
This information is available on the status table on the Service Section of the
HCCH website.

b. Advantages of Service Convention

● International Standardization:
The Hague Service Convention establishes a standardized and
formalized process for the service of legal documents, providing a
consistent framework that participating countries agree upon. This helps
to avoid confusion and ensures a recognized and accepted method for
serving documents internationally.
● Efficiency
 The convention aims to streamline the process of serving judicial and
extrajudicial documents, contributing to the efficiency of legal proceedings
by providing a clear and defined mechanism for international service. This
can help reduce delays and uncertainties.
● Avoids Legal Challenge:
By following the procedures outlined in the convention, the likelihood of
legal challenges to the validity of service is minimized. This helps
maintain the integrity of legal proceedings and ensures that parties are
properly notified.
● Mutual Cooperation:
The convention fosters international cooperation in legal matters by
creating a framework for the service of documents between member
states. It reflects a commitment to mutual assistance in legal proceedings.

According to data from the Investment Coordinating Board (BKPM), the

realization of foreign investment (PMA) in Indonesia reached US$33.39
billion throughout 2022. The largest realization of foreign investment
came from Singapore, namely US$10.54 billion or 31.56% of the total.
PMA in 2022.15 Followed by China, Hong Kong, Japan, United States,
South Korea, Netherland, United Kingdom, that are contracting parties of
the Hague Service Convention. Hence, Joining the Hague Service
Convention fosters international communication and cooperation in legal
matters. It provides a framework for transmitting judicial and extrajudicial
documents between member states, promoting collaboration in legal
proceedings and facilitating cross-border legal actions.

c. Disadvantages of Service Convention

● Not Universal: While many countries are signatories to the Hague Service
Convention, it is not universally adopted. Some countries may not be
parties to the convention, making it inapplicable in those jurisdictions and
potentially requiring alternative methods for service.
● Potential Delays: Despite its goal of expediting the service of documents,
the Hague Service Convention may still introduce delays. Factors such as
translation requirements, objections raised by the receiving country, or
procedural differences can contribute to the time it takes to serve
documents.
● Limited Scope: The convention primarily applies to civil and commercial
matters. It may not cover certain types of documents or specific legal
proceedings, limiting its scope in certain situations.

15 https://databoks.katadata.co.id/datapublish/2023/01/10/10-negara-asal-investasi-
asing-terbesar-di-indonesia-tahun-2022
 ● Language Barriers: The need for translations of documents into the
official language of the receiving country can be a potential drawback,
adding complexity to the service process and potentially increasing costs.

In summary, while the Hague Service Convention offers several

advantages for Indonesia in terms of standardization, efficiency, and
international cooperation, there are also potential challenges related to its
universal applicability and practical implementation. The specific
circumstances of each case, as well as the nature of legal proceedings,
should be carefully considered when assessing the overall impact of the
convention from Indonesia's perspective. Legal professionals and
policymakers in Indonesia may need to weigh these factors based on
their priorities and the specific requirements of international legal matters.

RECOMMENDATION AND CONCLUSION

Indeed, each independent sovereign territory has a different International Private Law system.
By facilitating the legalization process in the event of a civil issue involving more than one
country; countries usually establish international cooperation by drafting convention agreements
aimed at unification in the field of law, especially civil law (Suparman, 2012)