The arbitration clause is a form of private agreement that binds the parties to resolve disputes outside the court, in accordance with the principle of freedom of contract. However, in bankruptcy cases, conflicts arise between the existence of arbitration clauses and the exclusive jurisdiction of the Commercial Court, considering that bankruptcy has a public law nature that concerns the interests of creditors in general. This research aims to analyse the legal position of arbitration clauses in bankruptcy cases and identify conflicts that arise between the two. The research method used is a normative legal approach by analysing laws and regulations, legal doctrines, and court decisions. The results showed that although the arbitration clause has a strong legal basis based on Article 1338 of the Civil Code and Law No. 30 Year 1999, the court still has exclusive jurisdiction to handle bankruptcy cases in accordance with Article 303 of Law No. 37 Year 2004. The Supreme Court decision also emphasised that arbitration clauses cannot limit the authority of the Commercial Court in determining the insolvency status of an entity. The Supreme Court confirmed that arbitration clauses do not prevent the Commercial Court from handling bankruptcy, as in Supreme Court Decisions No. 45 K/Pdt.Sus/2013 and No. 3415 K/Pdt/2021. Bankruptcy law as lex specialis has a higher position than arbitration, in accordance with the principle of lex specialis specialitet to ensure legal certainty. One recommendation is the revision of relevant laws and the issuance of special guidelines by the Supreme Court to clarify the relationship between arbitration and bankruptcy.
Ummi Maskanah (Tue,) studied this question.