indonesia arbitration - Bani

Reader’s Comment on Newsletter /2008 Article
“Certain Indonesian Contract Law Principles that are Relevant
in International Arbitration”
August 15, 2008
Dear Fred,
We have not met but I read with interest your article Certain Indonesian Contract
Law Principles that are Relevant in International Arbitration in the recent
issue of “Indonesian Arbitration”.
It might be of interest to you to know that certain Common Law jurisdictions
do provide for Good Faith principles in contracts. For example, New York law
requires in both the creation and conduct of a contract “good faith and fair dealing”
as a statutory duty. Other common law jurisdictions have adopted principles
of “good faith” and are being introduced into the development of the law.
Yours sincerely,
Toni de Fina
August 20, 2008
Dear Toni,
Thank you very much for your input on the recognition and the requirement of
“good faith and fair dealing” as a statutory duty in both the formation and implementation
of contracts in certain common law jurisdictions.
Yours sincerely,
Fred B.G. Tumbuan
August 26, 2008
Dear Fred,
Thank you so much for your letter. I hope you did not think I was criticizing
your article because that was not the case. I thought you may not have been
aware of the provisions of the US Uniform Commercial Code requiring “good
faith and fair dealing”.
I do not think other common law countries will adopt like provisions by statute,
but interestingly in Australia, under the provisions of the Trade Practices Act
1974 (Clth) there is by s.52 a prohibition on “misleading or deceptive conduct or
conduct likely to mislead and deceive”. This is, of course, not a positive obligation
for “good faith and fair dealing” but it could be argued that there are some common
elements.
INDONESIA ARBITRATION - Quarterly Newsletter No. 4/2008