The Financial Services Dispute Resolution Forum at LAPS SJK1

Updated: Jul 18


Consumers will find the choice of financial products offered by financial services providers (PUJK) today to be quite appealing. Consumers now have a wider range of financial products to choose from, both for consumption or investment, that are better suited to their needs. In addition to the variation of products, consumers now also have easy access to many forms of transaction platforms. Consumers, on the other hand, must understand the desired financial product thoroughly and be enticed not only by the potential benefits and simplicity of transactions, but also by the risks associated with the product and transaction platform to be purchased or used.


Consumer carelessness, a lack of consumer understanding, and a lack of information from financial services providers about the risks of financial products are just a few of the issues that frequently arise in the financial services sector and must be resolved through courts or other dispute resolution institutions, both on the basis of defaults or unlawful acts by one of the parties. In line with the increasingly easy and practical development of the financial sector industry, the Parties who have conflicts in the financial sector demand for more effective and efficient dispute resolution mechanism. This applies too for disputes that occur between consumers and financial service business actors (PUJK).

For legal practitioners, a relevant question arises, can dispute resolution be resolved in a short time and at affordable costs? This is often an obstacle in dispute resolution. If there exists a forum with low cost, it may not necessarily be done in a short time or vice versa. This is what makes the parties ignore potential disputes or even ignore the law all together when making decisions. As a result, their business processes become vulnerable to disputes.


The judiciary, as a formal dispute resolution forum, is still viewed as unable to meet the needs of business dispute resolution, particularly disputes between consumers and PUJKs. Many parties avoid the judiciary in favor of other conflict resolution forums because of the formality and length of procedure.

Alternative dispute resolution mechanisms, such as arbitration, mediation, and others, are often used as alternatives to the judicial institutions to resolve disputes. Arbitration, in particular, is expensive, which is why not all consumers or financial services providers are willing to use this mechanisms.


In response to these challenges, the Financial Services Authority (OJK) issued Regulation No. 61/POJK.07/2020 concerning Alternative Institutions for Dispute Resolution in the Financial Services Sector – LAPS SJK (“POJK 61/2020”), which governs dispute resolution in the financial services sector. This ostensibly new dispute resolution forum provides another option for businesses to resolve their conflicts.


According to data from OJK, there has been an increase in consumer complaints against PUJKs, indicating that the potential for financial service disputes is quite large. In reference to the number of complaints, the five sectors with the most complaints are online loans, banking, insurance and finance, and investment companies2.


Meanwhile, in POJK 61/2020, PUJKs include Commercial Banks, Rural Credit/Financing Banks, Broker-Dealers, Investment Managers, Pension Funds, Insurance Companies, Reinsurance Companies, Financing Institutions, Pawn Companies, Guarantee Companies, Money Lending Service Providers Based on Information Technology, Crowdfunding Service Providers, Microfinance Institutions, Indonesian Export Financing Institutions, PT Permodalan Nasional Madani (Persero), and other financial service institutions that carry out intermediary, fund management, and depository activities in the financial services sector, both implementing its business activities both conventionally and based on sharia law, based on the provisions of laws and regulations in the financial services sector3.


Based on data released by OJK on consumer complaints in the financial services sector until the end of November 2021, it is evident that during the last five years, the number of complaints has risen dramatically. As of November 25, 2021, the total number of complaints received by OJK had increased to 595,521 from 245,083 in 20204.


As a new institution, LAPS FSS must earn the trust of both the PUJK and consumers as an institution where financial sector parties can resolve their disputes.



DISPUTE RESOLUTION PRIOR TO LAPS SJK PURSUANT TO POJK 61/2020


As a new institution that has emerged, before the establishment of LAPS SJK, there were already several other similar institutions. POJK 61/2020 itself is an amendment to OJK Regulation Number 1/POJK.07/2014 concerning Alternative Dispute Resolution Institutions (“POJK 1/2014”). This amendment is an effort to establish an alternative dispute resolution institution that is effective and efficient and is related to the development of technology, products, and services in the financial services sector.


Several dispute resolution institutions are already present and registered with the OJK, including the Indonesian Insurance Mediation Board (BMAI), the Indonesian Capital Market Arbitration Board (BAPMI), the Pension Fund Mediation Agency (BMDP), the Indonesian Banking Dispute Settlement Alternative Institution (LAPSPI), the Indonesian Banking Mediation Agency. Indonesian Financing, Pawnshops and Ventures (BMPPVI) and the Indonesian Guarantee Company Arbitration and Mediation Board (BAMPPI)5.


It should be noted that the LAPS SJK is not an amalgamation of the six institutions. Each institution has its specialty in resolving financial service disputes. The advantage of each dispute resolution institution is that it has a focus according to its respective sectors. However, on the other hand, it is possible to create confusion for consumers or PUJK by not integrating these dispute resolution institutions.


Consumers as users of financial services often experience confusion in submitting dispute resolution efforts if they feel disadvantaged when using the product. This condition is exacerbated by the fact that PUJK seems to ignore and avoid complaints from consumers6.


Another issue that also needs attention is related to costs in dispute resolution. Most consumer cases are not disputes with large amounts or can be said to be retail cases. Regarding cost, consumers are often reluctant to trigger a dispute resolution processif there is a dispute with the PUJK.


In contradiction to POJK 1/2014, POJK 61/2020 regulates thatcases with nominal values below a certain value can be free from court fees. This is certainly progress and can encourage consumers with retail type cases not to hesitate to register their disputes through the LAPS SJK.


ALTERNATIVE DISPUTE RESOLUTION INSTITUTIONS PURSUANT TO POJK 61/2020


One of the requirements for parties who wish to resolve disputes through the LAPS SJK forum is that they must have an agreement to resolve their disputes through LAPS SJK regardless of the choice of mechanism (binding opinion, arbitration or mediation). The following are several dispute resolution mechanisms at LAPS SJK:


a. Binding Opinion


As an alternative to resolving disputes, binding opinions are not very popular. This binding opinion itself comes from the arbitration process and in practice, it is not uncommon to include the agreement in the dispute resolution clause in the main agreement. In Law Number 30 of 1999 concerning Arbitration, binding opinions are regulated in Chapter V article 52:


“The parties to an agreement have the right to request a binding opinion from the arbitration institution on certain legal relationships set out in an agreement.” Furthermore, in the Elucidation of Article 52 of Law 30/1999 it is stated:

Even without a dispute, the arbitration institution may accept a request submitted by the parties to an agreement to provide a binding opinion on a matter relating to the agreement. For example regarding the interpretation of the provisions that are not clear; additions or changes to provisions relating to the emergence of new conditions and others. By giving an opinion by the arbitration institution, both parties are bound by it and one of the parties acting contrary to that opinion will be deemed to have violated the agreement.” So it can be concluded that a binding opinion is an opinion that is binding in nature and related to any issue pertaining to the agreement, for example regarding:

  • Unclear interpretation of the provisions;

  • Additions or changes to provisions relating to the emergence of new circumstances;

  • And other aspects regarding certain legal relationships of an agreement7.

The process of a binding opinion process administered by LAPS SJK can simply be explained through the following steps:

  1. Agreement to settle disputes through LAPS SJK;

  2. Register an application with the LAPS SJK;

  3. Payment of fees;

  4. Formation of the panel team;

  5. Examination by the panel team of the documents and statements of the parties;

  6. Formulation and reading of binding opinion;

  7. Implementation.


The Parties are bound by the Binding Opinion that has been given by LAPS SJK. Against the Binding Opinion of the LAPS SJK, it cannot be contested through any legal remedies, and if one of the Parties acts contrary to the Binding Opinion, it will be deemed to have violated the agreement8. b. Arbitration Of the several alternative dispute resolution methods, arbitration, is the most popular avenue in Indonesia, it is regulated in Law Number 30 of 1999 concerning Arbitration and Alternative Dispute Resolution (“Law 30/1999”). The definition of Arbitration itself refers to Article 1 number 1 of Law 30/1999: “Arbitration is a way of settling a civil dispute outside the general court based on an arbitration agreement made in writing by the disputing parties.”


The Arbitration process in the FSS LAPS can simply be explained through the following steps:

  1. Agreement to settle disputes through LAPS SJK Arbitration;

  2. Register an application for Arbitration with the LAPS SJK;

  3. Payment of Arbitration fees;

  4. Appointment of Arbitrators;

  5. Trial (Maximum 180 days and can be extended);

  6. Arbitration Award; and

  7. Implementation.

The LAPS SJK Arbitration Award is final, has permanent legal force and is binding on the Parties, and must be implemented voluntarily. If it is not implemented voluntarily, then the Arbitration Award will be implemented based on an order from the Head of the District Court at the request of one of the Parties. The LAPS SJK Arbitration Award in the form of a Peace Award (Deed of Peace/ Deed of Van Dading) has legal force equivalent to that of a decision that has permanent legal force9.


c. Mediation


Mediation is a method of resolving disputes through a negotiation process to obtain an agreement between the Parties with the assistance of a Mediator10. Meanwhile, another definition of Mediation in LAPS SJK is a method of dispute resolution through a negotiation process between the disputing Parties with the assistance of the LAPS SJK Mediator in order to seek various possibilities of dispute resolution without breaking/imposing a will so that a win-win solution can be reached through a settlement agreement11.


The mediation process in the LAPS SJK can simply be explained through the steps below:

  1. Agreement to mediate through LAPS SJK;

  2. Register an application for mediation with LAPS SJK;

  3. Payment of mediation fees;

  4. Appointment of mediators

  5. Mediation negotiations (Maximum 30 days and can be extended);

  6. Execution of settlement agreement;

  7. Implementation.

The settlement agreement reached from the Mediation is final and binding for the Parties to be implemented in good faith. If the parties so desire, then the settlement agreement can be stated in a Peace Decision (Deed of Peace/Deed of van Dading) through the LAPS SJK Arbitration process12.



CONCLUSION


LAPS SJK is expected to meet the needs of disputing parties in the financial services sector as a newly formed institution. The large number of consumer complaints against PUJKs, as well as the fact that the number of complaints is increasing every year, demonstrates the importance of institutions like the LAPS SJK.


Substantially, the dispute resolution mechanisms offered by LAPS OJK, which includes binding opinion, arbitration, and mediation, have existed before the LAPS SJK itself. However, through POJK 61/2021 regarding the LAPS SJK, the three forums are integrated into one forum under the LAPS SJK that can be accessed by consumers and PUJK.

With the integration of those dispute mechanisms, it is hoped that the dispute resolution mechanism in the financial services sector will become more efficient and effective, as well as more convenient for parties who require dispute resolution institutions in the financial services sector. The dispute parties can use the LAPS SJK to determine which forum to use, in accordance with the terms and conditions.


At LAPS SJK, the stages of the settlement process are also simple to understand, not overly complicated, and don’t take long. This is often a consideration in choosing a dispute resolution forum and, given the short completion time from the institutional side of the LAPS SJK, it is possible to receive a large number of complaints at once.


The processing fee that the parties must pay is proportional to the value of the dispute, and it may even be waived in the retail or small case category. This may encourage consumers of financial services, in particular, to use LAPS SJK to resolve their disputes with PUJK.


Seeing future opportunities, LAPS SJK can become an institution that provides a “feel of security” for consumers and PUJK in the event of a dispute. LAPS SJK would need to continue to improve and develop in order to become a leading institution for resolving financial service disputes.


 
  1. LAPS SJK (Lembaga Alternatif Penyelesaian Sengketa Sektor Jasa Keuangan)

  2. Dikutip dari laman situs www.hukumonline.com, https://www.hukumonline.com/berita/a/pengaduan-konsumen-jasa-keuangan-lt61ab1ad37d0d2?r=6&p=1&q=LAPS%20SJK&rs=1847&re=2022.

  3. Pasal 1 angka 2 POJK 61/2021.

  4. Dikutip dari laman situs www.hukumonline.com, https://www.hukumonline.com/berita/a/pengaduan-konsumen-jasa-keuangan-lt61ab1ad37d0d2?r=6&p=1&q=LAPS%20SJK&rs=1847&re=2022.

  5. Dikutip dari laman situs OJK, Daftar Lembaga Alternatif Penyelesaian Sengketa Di Sektor Jasa Keuangan https://www.ojk.go.id/id/berita-dankegiatan/ pengumuman/Documents/DAFTAR%20LAPS.pdf.

  6. Dikutip dari laman situs www.hukumonline.com, https://www.hukumonline.com/berita/a/urgensi-penggabungan-laps-dalam-penyelesaian-sengketa-jasakeuanganlt5ccff431b37f9?r=8&p=2&q=LAPS%20SJK&rs=1847&re=2022.

  7. Dikutip dari laman situs LAPS SJK https://lapssjk.id/pengertian-pendapat-mengikat/.

  8. Dikutip dari laman situs LAPS SJK https://lapssjk.id/kepastian-hukum-hasil-pendapat-mengikat/.

  9. Dikutip dari laman situs LAPS SJK https://lapssjk.id/kepastian-hukum-hasil-arbitrase/.

  10. Pasal 1 angka 1 Peraturan Mahkamah Agung RI No. 1 Tahun 2016 tentang Mediasi.

  11. Dikutip dari laman situs LAPS SJK https://lapssjk.id/pengertian-mediasi/.

  12. Dikutip dari laman situs LAPS SJK https://lapssjk.id/kepastian-hukum-hasil-mediasi/.

 

For any particular question regarding the matters highlighted in this article or if you would like any advice pertaining to your potential dispute that you would like to resolve through LAPS SJK, please do not hesitate to contact us.



DOVY B. HANOTO Partner PSHP Law t + 62 5229705 - 06 e dovy.hanoto@pshp.law



ELLRICO P. SITUMORANG

Partner PSHP Law t + 62 5229705 - 06 e ellrico.situmorang@pshp.law



ANDI KOMARA Mid-Associate PSHP Law t + 62 5229705 - 06 e andi.komara@pshp.law

The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Readers should take legal advice before applying it to specific issues or transactions.

 

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