Looking at the current trend in Indonesian arbitration practice, it is now more common for arbitrators to request the submission of affidavits of witnesses and experts prior to their examination in the hearing. While Indonesian Civil Procedural Law does not specifically recognise the concept of affidavits, the concept of affidavits in the Indonesian Arbitration Law may stem from international arbitration practice. In established international arbitration practice, arbitrators tend to order each party to submit the affidavits of witnesses and experts as reflected in the IBA Rules on the taking of Evidence in International Arbitration ("IBA Rules"). This has led arbitrators with an Indonesian law background to use the Indonesian law approach when examining witnesses or experts that have previously provided the tribunal with a written affidavit.
It is very important for the parties to formulate affidavits in a specific way to ensure that they can benefit from this approach. The strategy must take into account all possible advantages and disadvantages when conducting direct or cross examination.
In this Update, we will set out practical tips on the format, content, and structure of affidavits that parties, witnesses, and experts may wish to consider when drafting affidavits to be submitted before an Indonesian tribunal or an Indonesian-seated arbitration.