Showing posts with label contract. Show all posts
Showing posts with label contract. Show all posts
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Disclosure of Government Contracts in Indonesia

Thursday, October 18, 2012

A paper titled “Perjanjian Badan Publik Dengan Pihak Ketiga: Anotasi Pasal 11 ayat (1) (e) Undang Undang Nomor 14 Tahun 2008” is available for download (only in Bahasa Indonesia). The paper annotates Article 11 (1) (e) of the Indonesian Freedom of Information Law which mandates the transparency of contract. Nevertheless, the paper conclude that Article 11 (1) e does not clearly mandates “active disclosure”. The article also discusses the problem of breach of contract which may arise due to a Public Body’s compliance with a disclosure request made under the FoI Law.


English version of the article will be available soon.


See also a related working paper:

Does Regulation by Contract Decreases Transparency? - Evidence from Jakarta's Water Services Sector”.

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Protection of (Water) Consumer Rights in Indonesia (Online Discussion)

Saturday, May 29, 2010

Indonesia in Motion will hold an online discussion on how to protect water consumer’s rights in Indonesia. The discussion will be held in Bahasa Indonesia.

You can either register through event brite or follow the instructions below.  

Following is the announcement (in Bahasa Indonesia):

Serial diskusi 'Indonesia in Motion' Insya Allah akan mengudara lagi pada jumat pekan depan tanggal 2 Juni 2010. Dengan ini kami mengundang kembali Saudaraku semuanya untuk mengikuti seri diskusi online "Indonesia in Motion".
Waktu:  Rabu, 2 Juni 2010, pk. 19.00 - 20.30. (GMT + 0)

Pembicara: Mohamad Mova Al 'Afghani
(Ph.D Candidate, UNESCO Centre for Water Law, Policy and Science. University of Dundee, UK) 

Chair: Rizal Yaya
(PhD Student University of Aberdeen UK) 

Tema: "Perlindungan Hukum bagi Konsumen Air di Indonesia"

Diksusi tersebut sangat menarik mengingat belum lama ini Jakarta mengalami krisis air dan sangat mungkin kejadian serupa berulang kembali. Diskusi online akan dilakukan lewat fasilitas Yahoo Messenger. Untuk berpartisipasi, silakan add (Indonesia in Motion)

Tambahan informasi dari Indonesia Law Reporter:
Acara ini bisa juga diikuti dari twitter dengan menggunakan hashtag #lawtalk atau me reply ke @movanet atau mendengarkan broadcast di home page Web Conference Indonesia Law Report

Prosiding dari acara ini akan disiapkan oleh Indonesia in Motion. 

Bahan bahan diskusi.
Makalah diskusi dengan judul “Perlindungan Hukum Terhadap Konsumen Air di Indonesia” dapat di download di sini
Op-ed and blog posts:

Transparency in Water Services
Indonesian Water Services Suffering from a Lack of Governance
Supreme Court Decision on Water Monopoly in Batam
Missing water and shadow users
14 Disturbing Facts about Jakarta's Water
Tomorrow, the Freedom of Information Law is in force!
Three ways for your business to be implicated by the new Indonesian freedom of information law
Where to complain for bad water services – a comparison
Jakarta’s water crisis, whose fault?
Human Right  Aspects of Private Sector Participation in the Water Sector
Is water a commodity or human rights?
The human right to water is not a property right
Why busy with the right to water instead of governance
Consultation on the Human Right  Aspects of Private Sector Participation in the Water Sector: more responses from the private sector
The Economist and the human right to water
Transparency Agenda in Water Utilities Regulation
Hukum Air (Water Law) is not really a topic in Indonesia
Safeguarding water contracts in Indonesia
Constitutional Court review and the future of water law in Indonesia
Anticipating water trade

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Is Skype Auto Recharge setting illegal?

Sunday, July 12, 2009

I am a regular skype user and found that its auto-recharge feature is annoying. Recently I found out that I am not the only one with this problem. Consider for example, this, this, this and this.

Auto recharge is of course a feature that can help many users. It can however, be illegal if it is entered into without the full informed consent of the consumer.

There is a part of the purchase page where we are supposed to tick the auto-recharge box. If this box is automatically ticked by skype, I think it will give a reason for either unconscionability challenge that may entitle consumer for liquidated damages or simply a violation of consumer protection laws.

Now, to answer the question of fact: Do you experience that skype auto recharge setting is 'by default'? Let me know your answer.


Franchise in Indonesia

Saturday, July 4, 2009

The franchise industry is booming in Indonesia, generating up to IDR 50 trillion annually, said the Jakarta Post. The legal framework for franchising has never been clearly outlined by the government. The nitty gritty of franchise agreement and the legislation surrounding it is elaborated in this page.

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The Tanzania Water Privatization Problem

Saturday, August 18, 2007

Guardian issued an interesting article elaborating the Dar-es-Salam Water Privatization problem:
At 11.30am on June 1 2005, three British expatriates were detained by the police in Tanzania. Cliff Stone, Michael Livermore and Roger Harrington were the senior managers at City Water, a consortium responsible for managing Dar es Salaam's water supply. After being held for several hours, the men were served with notices describing them as "undesirable immigrants" and told to leave the country.

I do not know the privatization scheme of Dar-es-Salam water service, but it appears to me that they are using a leasing scheme, where the authority retains ownership of the infrastructure (plus doing some administrative work) and the private operator runs the water treatment, extend network, and in this case, do the billing.

There is one contractual issue that I would like to highlight in this Dar-es-Salam case:

City Water repeatedly complained to the Tanzanian water ministry that its bid was based on flawed information supplied by Dawasa. According to a subsequent World Bank report, signed by the bank's then-president, Paul Wolfowitz, City Water stopped paying its monthly fee for leasing Dawasa's piping and other infrastructure in July 2004, less than a year into the contract. The company was also insisting that its operating fee be raised.

Asked by Dawasa to assess if this was justified, auditors PricewaterhouseCoopers and the British engineering consultants Howard Humphreys rejected City Water's arguments. (Biwater, for its part, directs blame at Dar es Salaam's water authority, saying that Dawasa had "barely started" big capital-works projects on which rehabilitation of the system depended.)

In infrastructure projects, it is common to assume that the local authority knows more about the condition of the installations, more than the investors. The investor then makes the bid (and calculate the prices) based on these estimates. And then, if they won the bid, the contract is concluded. What can make things worse is if the investor puts some clauses on the contract, making the authority liable for imperfect or inaccurate information they supplied to investors. In the Tanzania case above, the Govt was lucky because the PwC audit confirm that they were correct. But what if the result is otherwise?

Some lessons for government's lawyers:
  1. Make sure the client makes proper disclosures
  2. Find a way to get around with the clause that puts the burden of liability on the client's shoulder, for giving inaccurate information
  3. Put a clause that the counterpart is also responsible for their own judgement, in addition to information supplied by the client
  4. Find a win-win solution if a case on imperfect information arise, in any event, avoid the Court

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Safeguarding a water contract

Monday, July 23, 2007

If you are representing a municipality or a central government, and you have to deal with water MNCs in concluding an agreement, what will you do?

I wrote a paper on this issue for a conference held by the IELRC in Geneva, last April. Here's the abstract:

Due to financial and technological reasons, water undertakings are often being conducted by large scale Multi National Corporations (MNC). Governments often positioned Regional Authorities as a regulator to these MNCs, and at the same time engaged in water contracts with them through State Owned Enterprise (SOE).

However, the relationship between Water MNC and Governments is asymmetrical as MNCs can move their assets overnight, transfer their ownership to third parties, seek various means of redress through bilateral, regional or international investment treaties and avoid confiscation by reallocating their assets. These are often done by hiding behind multiple jurisdictions enjoyed either by their parent companies, subsidiaries or shareholders.

The positions of Governments are the opposite as they do not have the flexibilities enjoyed by MNCs. This paper attempts to prescribe issues that need to be highlighted in safeguarding water contracts in Indonesia.

The first part discusses the legal relationship between institutions involved in a water undertaking. The second part listed down regulatory mechanisms in Indonesian context, more specific towards the impact of Constitutional Court’s review of the Water Law (2004). The third part of the paper examines the provisions existing normally in water contracts between a local subsidiary of MNC and regional authorities and presents a point of view in drafting the clauses.

Note that all laws mentioned there are as of March, 2007. The investment law has been modified recently. See the paper here.


Click-wrap agreement unenforceable in Secondlife

Thursday, July 19, 2007

Last May I had an interesting discussions with Priyadi and others on the enforceability of Creative Commons license in Indonesia. In that previous post, I mentioned the example of Comb v PayPal (US District Court of San Jose), in which the Court find the agreement unenforceable.

Recently, in the case of Marc Bragg v Linden, the Court also finds Secondlife's wraps agreement unenforceable:
Linden presents the TOS on a take-it-or-leave-it basis. A potential participant can either click “assent” to the TOS, and then gain entrance to Second Life’s virtual world, or refuse assent and be denied access. Linden also clearly has superior bargaining strength over Bragg. Although Bragg is an experienced attorney, who believes he is expert enough to comment on numerous industry standards and the ‘rights’ or participants in virtual worlds, … he was never presented with an opportunity to use his experience and lawyering skills to negotiate terms different from the TOS that Linden offered.
Creative Commons license is of course, different from these wraps. Nevertheless the same question remain, can it be declared unconscionable?


Cost recovery in oil projects

Sunday, January 7, 2007

An op-ed piece in today's JP criticizing a government's plan in amending regulations affecting cost recovery in oil projects:
Before signing the PSC (or KKS as it is now called), the investor built an economic model, calculating his return on investment using several scenarios. He negotiated a contract expecting a certain minimum net result. If this expected net result no longer holds true because the deal was unilaterally changed, or if he is, for example, subject to sudden spurious tax levies at the central and local levels, he will demand that his economic expectations under the agreed contract be restored. If he does not get that, he may pack his bags and leave, and/or resort to arbitration.

Admittedly, there will always be a need for some degree of regulation, especially in the event of what economists call market failures. But the government should step in only when it needs to fix something. As the saying goes, if it ain't broke, don't fix it. That is the prevailing management theory and a fundamental credo of microeconomics.
Some official thinks that oil companies takes too much from cost recovery, oil company says there are not so much to be taken. I haven't look at the draft regulation so I can't say anything.

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2007 Legal Predictions: What is HOT?

Thursday, January 4, 2007

No computer as a legal subject, no determining your child using copyright, no international law on online games, we only talk about 2007 not 2030. What's going to be hot? Jennifer Granick wrote in Wired that (i) contract law and (ii) privacy law will be the two hot topics for 2007.:
Free speech and fair use don't mean much if software end user license agreements, or EULAs, or website terms of service, or TOS, can take those rights away. Contract law allows private parties to agree to forgo most rights in exchange for some privilege. Vendors of goods and services take advantage of modern contracting tools, like click-through or shrink-wrap, to impose terms and conditions on using software or websites. These documents purport to limit the user's legal rights.

Two things have changed. First, it's no longer acceptable only to catch criminals during or after a crime has been committed. Counter-terrorism requires identifying and neutralizing threats ahead of time. Second, collecting information about everyone is now much cheaper and easier than it used to be. We spread information about ourselves as we use the internet, shop online, talk on our cell phones, send e-mail or use electricity. These activities leave a digital trail that database and search technology can store and access relatively inexpensively.
Privacy has been quite a debate in 2006, both for lawyers and non lawyers. Futurist such as Brin had invented the concept of "Transparent Society"and Cascio introduced the "Participatory Panopticon". For the lawyers, Posner's books "Uncertain Shield: The U.S. Intelligence System in the Throes of Reform" and Not a Suicide Pact: The Constitution in a Time of National Emergency both discusses privacy issues as an inevetable aspect of law enforcement. I think these thoughts contributes significantly to the privacy legal debate in 2007.

I agree with her analysis on online contracts. Even lawyers wouldn't bother spending time to study the content of online contracts. Thus, following this, another aspects of law will arise: consumer protection and competition law.

You can read the whole thing here.

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Lawyers, update your nano vocabulary!

Monday, December 11, 2006

My previous posts had discussed various definitions of nanotechnology in order for us to exercise more prudency before drafting a contract. We shall avoid categorizing non nano products into "nano", although the barriers are not clear enough. Aerosol for example may be less than 10 nm but they may not qualified as an "engineered nanoparticle".

However, contracts related to existing nanotechnology may not contain the word "nanotechnology" at all. Our client can be either a producer of nanocrystal or nanowire or nanocomposite or nanorob or nanotube or nanoribbon or nanofibre, all that is too specific to be categorized simply as nanotechnology. So, how are we going to distinguish between one nano and the other nano?

Some institutions has been developing a standard nomenclature for nanomaterials:
Last month at the ACS national meeting in San Diego, Vicki Colvin, director of the Center for Biological & Environmental Nanotechnology and chemistry professor at Rice University, told a standing-room-only crowd about a project she’s spearheaded to create a dictionary for the nanoscale. Colvin hopes that by developing standard terminology for nanomaterials, she and her colleagues will be able to create a common language that helps scientists and nonscientists alike.
So, go and update your vocabs! The British Standard nano-nomenclatures is available for a free download here (as of 11/12/06).