CONCEPT OF TAHKIM IN INDONESIA

FOR ISLAMIC BUSSINESS DISPUTE SETTLEMENT

DARYANTO
Master Degree of Law, Padjadjaran University, Bandung -
Indonesia
The author would like to acknowledge and express gratitude
to the Indonesia Endowment Fund for Education (LPDP) for
their support of Daryantos postgraduate research.

1st International Conference on Islamic Law in Indonesia whit the theme

Reviving and Islamic Law as a Living Law within Legal System of the
World 25th 26th November 2016, Indonesia University.
 ABSTRACT

In pre-Islamic Arabian, the Concept of Tahkim (arbitration) was

known practiced to settle various types of civil an commercial
disputes. In Islamic law, the concept of Tahkim has not yet become
the rule of Islamic law. But concept of Tahkim is still the ideology
that can be developed into a basic validity of Arbitration. In the past
period, the practice of Tahkim was often done by the prophets
friends. The concept of Tahkim in Indonesia is applied for Islamic
business dispute settlement, for example Islamic Banking.
Indonesia applies the concept of Tahkim which is called Basyarnas
(Arbitration Institutions). Basyarnas is an institution that resolving
disputes based on Islamic principles and run the settlement of
disputes in Islamic business sector (non-Litigation) .

Key note: Concept, Tahkim in Indonesia

 RESEARCH METHODS

This study uses a comparative descriptive, which describe
the method of comparative law that explains the
application and arrangement clearly.

IDENTIFICATION OF PROBLEMS

How is the Application of Tahkim Concept in Indonesia to resolve

the disputes on Islamic business ?
How is the competency of Basyarnas (Arbitration Institution) to
resolve the disputes on Islamic business ?
Application Cocept of Tahkim (Arbitration) in Indonesia
for Islamic Bussiness Dispute Settlement.
1. The Republic of Indonesia is a country that is based on Pancasila, with
divine Almighty and recognizes six religions. The Republic of Indonesia
does not only concern with the development of six religions, but also
provides facilities for its followers to carry out their worship according
to their religion.
2. The Preamble of the 1945 Constitution explicitly confirms the existence
of five principals known as Pancasila. Article 29 verse (1) and (2) of the
1945 Constitution as the foundation norm or ground norm for
Indonesian nation that their freedom in religion is fully guaranteed by
constitution. The Republic of Indonesia shall enforce Sharia Law for
Muslims, Christian for Christians, and Hindu for Hindus. etc
3. based on these , the concept of tahkim was applied in Indonesia.
Competence of Basyarnas (Arbitration institution)
For Islamic Bussiness Dispute Settlement
Absolute competence of Basyarnas (Arbitration
institution) to receive, examine and rule on the dispute which
has been submitted, namely :
1. Resolve in a fair and speedy dispute (civil) arising in trade,
finance, industry, services, and others are under the laws and
regulations fully occupied by the parties, and the parties agree
in writing to submit the settlement to Basyarnas (Arbitration
institution) in accordance with the procedures of Basyarnas
(Arbitration institution).
2. Give opinions binding on the parties demanders absence of a
dispute regarding the issues with respect to an agreement.
Related to the absolute competence of Basyarnas
(Arbitration institution) based on an agreement or clause of
settling disputes through Basyarnas (Arbitration institution)
which has been agreed by the parties, then it is possible for the
CONCLUSION
Application of the concept of tahkim in Indonesia refers to the
philosophical foundation of Pancasila by considering three legal
systems (customary law, Islamic law, western law) in Indonesia as
a positive law outlined in the constitution in article 29 of the 1945
Constitution as ground norm. This perspectives, concept of tahkim
(arbitration) in Indonesia occupies the position. The presence of
Islamic arbitration in Indonesia has a strong position in the positive
law and is as a mean that can be used in the economic development
of Islam in Indonesia.
Basyarnas is a permanent and independent Institution.Competence
of Basyarnas (arbitration institution) to resolve disputes arising in
trade, finance, industry, services in the field of Islamic economy.
competence of Basyarnas (Arbitration institution) to receive,
examine and rule on the dispute which has been submitted.
 BIBLIOGRAPHY

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 ACKNOWLEDMENTS
The author would like to acknowledge and express gratitude to the
Indonesia Endowment Fund for Education (LPDP) for their support
of Daryantos postgraduate research.

Special Thanks to:

Center of Islam and Islamic Law Studies
The Authors of LKIHI 2016