Penyelesaian Perkara Hukum Perdata Internasional

Resolving International Civil Law Cases

The lecture explains how to identify and resolve civil cases involving a foreign element—for example, parties with different nationalities, a party living abroad, or property or conduct located in another country. Such cases may concern marriage and divorce, inheritance, property, contracts, or other obligations.

1. Identify the Foreign Element

Determine whether the dispute has a foreign element. If it does, it is treated as an international civil-law case; without one, it is an ordinary domestic civil case.

2. Determine Whether a Court Has Jurisdiction

Nationality and domicile are key connecting factors when considering whether a court may hear a case. For example, an Indonesian court may have jurisdiction over an Indonesian citizen or a foreigner domiciled in Indonesia. A person’s residence abroad may also be relevant to where they bring a case.

Jurisdiction—whether a court can hear the dispute—is distinct from the question of which country’s law should govern it.

3. Understand the Stages of Handling the Case

The lecture describes three broad stages:

• Case examination and procedure: The court handles procedural matters and evidence under lex fori, meaning the law of the court hearing the case. For instance, an Indonesian court generally uses Indonesian procedural law, even when a party is foreign.
• Qualification: The judge categorizes the facts legally—for example, as a property, contract, tort, or personal-status dispute. This classification helps identify the relevant choice-of-law rule.
• Decision on the merits: The court applies the governing law, called lex causae, selected through the relevant connecting factor.

4. Select the Governing Law Using Connecting Factors

The lecture refers to these as secondary connecting points and gives several examples:

• Immovable property — lex situs: Apply the law of the place where the property is located. Thus, a dispute over land in Indonesia is governed by Indonesian law, even if a foreign court is involved.
• Legal acts and contracts: The law of the place where an act is performed may be relevant. For contracts, the lecture mentions lex loci contractus, the law of the place where the contract is made or carried out.
• Unlawful acts or torts: The law of the place where the wrongful act occurred may apply.
• Personal status: The applicable rule may depend on nationality or domicile, depending on the legal system.

5. Nationality and Domicile Approaches to Personal Status

The lecture contrasts two approaches:

• Nationality principle: Used in the lecture’s examples of continental European systems. A person’s national law may govern personal-status matters, such as divorce or inheritance. The presenter gives examples of courts considering the law of a foreign party’s country of citizenship.
• Domicile principle: Used in the lecture’s examples of England, the United States, and Australia. The law of the person’s domicile may govern. For example, a foreigner domiciled in England may have personal-status matters considered under English law.

Overall Framework

Identify the foreign element, consider jurisdiction, use the forum’s law (lex fori) for procedure, classify the dispute, and then use the relevant connecting factor to select the governing law (lex causae) for the decision.

Speaker or Source

The subtitles do not name the lecturer. The video metadata identifies the presenter as Dr. Sri Wahyuni.