ALTERNATIVE DISPUTE RESOLUTION IN COMMON AND CIVIL LAW COUNTRIES

Abstract

The distinction between the civil law and common law systems significantly influences the formation and implementation of legal frameworks in various jurisdictions. The civil law system, rooted in Roman Law and characterized by the codification of statutes, offers a high degree of legal certainty and predictability, though it tends to be less adaptable to rapid societal changes. Conversely, the common law system, which developed in England, is based on judicial precedents and the doctrine of stare decisis, providing greater flexibility but introducing potential legal uncertainties. In the context of dispute resolution, both systems incorporate mechanisms such as Alternative Dispute Resolution (ADR) and arbitration, which enable out-of-court settlements. In Indonesia, ADR is governed by Law No. 30 of 1999, which encompasses processes such as mediation, negotiation, and expert evaluation to achieve consensus and avoid litigation. While ADR offers greater efficiency and cost-effectiveness, challenges remain regarding its enforceability and the involvement of courts in the arbitration process. In the common law system, anti-suit injunctions are employed to safeguard the integrity of the arbitration process, whereas their application in civil law jurisdictions is often met with legal challenges. The practical application of arbitration and ADR reveals both advantages and limitations that depend on the specific legal, cultural, and procedural contexts of each legal system. In the case of PT PLN (Persero) and its construction contractors, arbitration is frequently chosen as an alternative dispute resolution method to avoid protracted court proceedings. However, the reliance on the judiciary to enforce arbitration awards underscores the need for a more cohesive interaction between arbitration bodies and the judiciary to ensure effective legal outcomes and uphold the principles of justice and legal certainty.