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Kaye Scholer LLP
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Florjan Osmani
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The Cape Town Convention: An Evolving Process (with Side Notes on Selected Issues)
Erin M. Van Laanen & Maria E. Gonzalez, McAfee & Taft
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The Need to Extend WALAs Presence in the Airport Industry Alan Meneghetti & Michael Siebold,
Worldwide Airports Lawyers Association (WALA)
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Argentina
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Chapter 15
Indonesia
Theodoor Bakker
1 General
1.1
2.
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a.
b.
c.
d.
e.
f.
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Emir Nurmansyah
g.
h.
i.
j.
k.
l.
m.
In line with letter a. of the above provisions of the Aviation Law, the
DGCA confirmed that to obtain an AOC, an operator/company must
first obtain a Commercial Air Transportation Business Licence.
After obtaining a Commercial Air Transportation Business Licence,
the operator/company must then submit an application for an AOC
to the DGCA. In accordance with Article 118 paragraph (1) letter a.
of the Aviation Law, the application must be submitted no later than
12 months after the operator/legal entity obtained its Commercial
Air Transportation Business Licence. The 12-month period is
intended for the operator/company to realistically implement and
perform actual air transportation activities (de facto) by operating
the minimum number of aircraft owned and possessed in accordance
with its intended scope of business or activities. If the holder of the
Commercial Air Transportation Business Licence does not actually
undertake air transportation activities by operating aircraft during
the 12-month period, then the Commercial or Non-Commercial
Air Transportation Business Licence issued shall be deemed to be
automatically invalid.
Another requirement during the 12-month period is for the air
carrier/operator to own and possess a certain number of aircraft
for its fleet of operations. According to Article 118 paragraph (2)
of the Aviation Law, an air carrier/operator having the following
Commercial Air Transportation Business Licence must:
a.
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1.3
1.
2.
3.
b.
c.
1.6
The Aviation Law provides that the general rule for aircraft that can
be operated in Indonesia is that they can be both Indonesian-registered
aircraft (under PK registration) and foreign-registered aircraft (Article
24 of the Aviation Law). However, Article 63 of the Aviation Law, in
line with SKEP/195/IX/2008 concerning the Guidelines of Obtaining
a Flight Approval (SKEP 195), specifies that only Indonesianregistered aircraft can be operated within the jurisdiction of the
Republic of Indonesia. An exception to this rule, which is regulated
under the Aviation Law and SKEP 195, is that for certain situations and
for a limited time only, foreign-registered aircraft may be operated after
obtaining approval from the Minister of Transportation and fulfilling
the standard of airworthiness certificate in Indonesia. The particular
situations and limited time periods that allow for this exception are:
a.
b.
c.
d.
Indonesia
According to verbal confirmation from the DGCA, the certain
situations and limited time periods as mentioned above were
interpreted by the DGCA as allowing foreign-registered aircraft to
operate under Indonesian territory as long as they obtain the above
approvals and standard airworthiness certification requirements
from the Minister and the DGCA. However, we should keep in
mind the certain priority from the DGCA over Indonesian-registered
aircraft especially once such operations can be handled by the said
Indonesian aircraft.
As further regulated, Clause 121.155 of Civil Aviation Safety
Regulation (CASR) Part 121 amendment 6 concerning Certification
and Operating Requirements: Domestic, Flag and Supplemental Air
Carriers (CASR 121) provides further exception for ForeignRegistered Aircraft in which they may be operated in Indonesia
as long as the aircraft is registered in a country which is party
to the Convention on International Civil Aviation (Chicago
Convention). We understand that the foreign aircraft will be/or
is registered under the N-registry under the FAA, therefore this is
applicable to the respective aircraft. Furthermore, the aircraft must
be carrying an appropriate airworthiness certificate issued under
the FAA, as well as meeting the registration and identification
requirements of the FAA. However, we should note that the type and
design of the aircraft must also be approved under the Indonesian
certification and comply with all of the requirements of the CASRs
that would be applicable if the aircraft were registered in Indonesia
(including the standard Aircraft Airworthiness Certificate).
Indonesia
airports to be used;
(2)
(3)
(4)
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Indonesia
2.
One of the most recent and most publicised cases was the Batavia
Airline case. On 30 January 2013, through Decision No. 77/
Pailit/2012/PN.Niaga, Jkt. Pst, the Central Jakarta District Court
ruled the bankruptcy of PT Metro Batavia (Batavia Airline). Prior
to the bankruptcy decision, the said air operator owed large numbers
of debts to several creditors. However, since none of the debts
were being paid by Batavia Airline, International Lease Finance
Corporation (ILFC) and Sierra Leasing submitted a bankruptcy
petition to the Central Jakarta District Court, which resulted
in Batavia Airlines management accepting the decision of the
bankruptcy and ended the operations of the said air operator.
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Indonesia
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3.1
b.
c.
3.2
Yes. Cases of the losing party may be appealed from the District
Court to the High Court and then ultimately to the Supreme Court.
Foreign Arbitral Awards (after they have been successfully enforced
in Indonesia through the District Court of Central Jakarta) may also
be appealed to the Indonesian Supreme Court.
No. The Aviation Law does not recognise the act of self-help.
Any attachment or seizure over (i) airplanes used for the purpose of
foreign countries, including postal transportation, with the exception
of trade transportation, and (ii) airplanes which are used for regular
public transportation and spare planes provided for such purposes,
is prohibited. However, there is no certainty that the code which
specifically provides for such prohibition is still applicable.
3.3
4.2
The appropriate courts would not depend on the value of the dispute
itself. The appropriate courts within the Indonesian court system
would be:
Indonesia
Indonesia
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Indonesia
b.
c.
However, if the business entities which carry out the merger are not
limited liability companies, the notification must be submitted, at
the latest, within 30 (thirty) working days of the date of the signing
of the merger, consolidation or acquisition agreement between
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Indonesia
the parties. However, in any case, for special circumstances,
the obligation to notify the KPPU shall be conducted 30 (thirty)
working days after all transactions resulting in the effectiveness of
such merger, consolidation, or acquisition have been completed.
Article 8 of Regulation 57/2010, and KPPU Regulation 10/2011,
provide the following procedure of notification to the KPPU:
a.
b.
c.
d.
to revoke contracts;
b.
c.
d.
e.
f.
g.
There are no specific rules in this matter. The tax authorities, however,
waive the requirement of being subject to value-added tax when an
Indonesian aircraft operator imports an aircraft in the jurisdiction.
4.7
There are none available. However, the DGCA will usually provide
more support towards undeveloped routes in the eastern region of
Indonesia.
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Yes, the Aviation Law provides the right of an air carrier to deny a
passenger to board, for example, if the passenger is considered to be
ill/sick, unless the passenger can surrender a doctors letter which
provides that the passenger may travel through air.
Yes, Articles 192 to 260 of the Aviation Law govern the obligations,
rights and responsibilities, as well as the existence, of an airport
authority.
4.14 To what extent does general consumer protection
legislation apply to the relationship between the
airport operator and the passenger?
Indonesia
4.8
Indonesia
Acknowledgment
The authors wish to express their gratitude to thank Putra Ariyavira,
associate at Ali Budiardjo, Nugroho, Reksodiputro, for his valuable
assistance in the preparation of this chapter.
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85
Indonesia
Indonesia
Theodoor Bakker
Emir Nurmansyah
Mr. Emir Nurmansyah has worked with ABNR since 1989 and has
been a partner since 1 January 1997. He graduated from the Faculty
of Law, University of Indonesia in 1989, majoring in Economic Law.
In 1993, he earned an LL.M. degree from the Faculty of Law at Bond
University in Australia, majoring in International Transactions.
Emir has, since 1993, dealt with a large number of transactions
involving privatisation, corporate restructuring, and project and debt
financing. He has been involved in most of the restructuring projects
in which ABNR is involved; both as a member, and as the leader, of
the ABNR team. He has also acted as the advisor of IBRA in several
restructuring and asset disposal projects.
Ali Budiardjo, Nugroho, Reksodiputro, usually abbreviated to ABNR, was established in Jakarta in 1967 as a partnership of legal
consultants in Indonesian business law. The firm is one of Indonesias largest independent full-service law firms. The commitment
we make to clients is to provide a broad-based, personalised service from top quality teams of lawyers with international experience
that includes groundbreaking deals and projects. ABNRs reputation has been recognised around the world by independent
industry surveys and law firm guides. ABNR was selected, based on its high level of integrity and professionalism, to be the
sole Indonesian member of the worlds largest law firm association, Lex Mundi, and the prestigious Pacific Rim Advisory Council
(PRAC).
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