Prof. Dr. Sefriani, SH, MHum inaugurated as Professor of International Law
Prof. Dr. Sefriani, S.H., M. Hum. inaugurated as Professor of International Law at the UII Senate Open Session, at the Auditorium Prof. Dr. Abdulkahar Mudzakkir, Saturday (1/12). Prof. Sefriani delivered a scientific speech entitled Earthing and Utilizing International Law: the BIT model for Indonesia.
In her speech, Prof. Sefriani said that the international legal product that should receive extra attention and provide benefits for all Indonesian people is the Bilateral Investment Treaty (BIT).
According to her, so far it has been realized that BIT is an asymmetrical agreement, not balanced in regulating rights and obligations between capital exporting countries which are generally developed countries with capital importing countries which are generally developing and underdeveloped countries. Both of these groups have different interests.
Prof. explained Sefriani, for exporting countries capital BIT is a protective instrument of all risks as well as political and legal uncertainty in the importing country. Therefore the classic BIT always contains the investor protection clause complete with a dispute settlement mechanism which is commonly referred to as the Investor-State Dispute Settlement (ISDS). Where foreign investors can directly bring the case to the arbitration panel.
“This panel has the authority to decide the loss that must be paid by the host if it finds a violation of the protection clause guaranteed by the BIT,” said Prof. Sefriani who is the 16th Professor at UII.
She added, as for the capital importing country, the existence of BIT is an instrument to attract investment in her country. Dependence on foreign investment makes the capital importing countries including Indonesia.
In her speech, Sefriani conveyed several recommendations for the Indonesian BIT model. First Protection of investment and liberalization must not sacrifice the interests of the state in making policies in the public interest. Second, the new BIT should guarantee the absence of a denial of justice for investors.
Furthermore, the third, the new BIT should revise the definitions of terms such as investment, Fair and Equitable Treatment (FET), expropriation that has been provided with a very open and open opportunity to be interpreted very broadly. Fourth, the new BIT should contain the obligation clause of foreign investors, not just the obligations of Indonesia as the host.
“Fifth, the dispute resolution mechanism in the new BIT should with certain conditions such as consent in writing and must be carried out through a separate agreement (SWA). Sixth, the possibility of establishing a new Investor-State Dispute Settlement (ISDS) in addition to the International Settlement Investment Dispute (ICSID) and UNCITRAL, ” she explained.
Prof. Sefriani said, as acknowledged by the Investment Coordinating Board (BKPM), was one of the causes of the Indonesia-foreign investor dispute at the ISDS forum because of a lack of understanding of the obligations arising from BIT in various executive, legislative and judicial elements at the central and regional levels.
Therefore, it is very important to ground international law on this beloved Indonesia, so that Indonesia can use international law for foreign parties for the benefit of Indonesia. “It’s not the time for Indonesia to only be an object, where foreign parties use international law for Indonesia for their interests,” said Prof. Sefriani.
