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Korban kekerasan dalam rumah tangga yang paling rentan adalah perempuan. Hal ini tersebut membutuhkan reinterpretasi karena relevansinya dengan keberlakuan UU RI PKDRT No. Request Full-text Paper PDF. (Kajian Terhadap UU No. 23 Tahun Tentang. Penghapusan Kekerasan dalam Rumah Tangga). Nuswantarl. Abstract. The aims of the research are: (1) to . Kriminalisasi Merayap: Pemetaan Undang-undang Nasional 23/ tentang KDRT dan UU Perkawinan , lihat Nursyahbani Katjasungkana .

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On the 14 See Siemens AG v.

Another tribunal rendering decision at about the same time, in Plama v. Bulgaria, produced a similar outcome. Yet the Plama tribunal went even bolder by expressly advocating a new presumption: that an MFN provision in a basic treaty does not incorporate by reference dispute settlement provisions in whole or in part set forth in another treaty, unless the MFN provision in the basic treaty leaves no doubt that the Contracting Parties intended to incorporate them.

Some other tribunals subsequently followed suit Salini, ibid at par Plama Consortium Limited v. The Latest Round of Cases and Taking Stock of the Debate Based on the illustration above, it is clear that in general the jurisprudence of investment arbitration tribunals is still sharply divided over the issue.

The latest round of cases dealing with MFN and dispute settlement in and did nothing to end the discord. In Impregilo v.

Argentina 20 and Hochtief v. Argentina, 21 the tribunals ruled that the claimant may import a more favorable term from Argentina s other BITs in order to avoid the pre-arbitration requirement to litigate its claim before local court for 18 months.

These decisions, decided by a majority, attracted two very strong dissents that will be highlighted in the analysis below. Argentina 23 and Daimler v. Argentina 24 refused to extend the application of MFN clause to dispute settlement.

It seems that there is still a long way from jurisprudence constante on this issue. This is true even among various BITs signed by one state. It is one of the reasons that many tribunals have come to different conclusions on the relation between MFN clause and dispute settlement.

Some investment treaties expressly determine whether the MFN clause there apply to dispute settlement or not. See section V a. It is submitted that the basic position should be the one put forth by the Plama tribunal: that an MFN clause does not apply to dispute settlement unless it can be clearly ascertained that the state parties intend otherwise.

Therefore claimants cannot benefit from more favorable provisions in other treaties in order to establish or expand the jurisdiction of a tribunal.

Afterwards, there will be an elaboration of the fundamental concepts that should be applied when dealing with the issue of MFN and dispute settlement section IV.

It will be shown below that those three cases cannot be used to support the view that MFN clause extend to dispute settlement as a procedural matter. This is because Iran had concluded another treaty with Denmark in that would enable Denmark to submit a dispute with Iran concerning the interpretation and application of that treaty to the ICJ.

This is especially telling when put within the context of the modern debate on MFN clause and jurisdiction because the MFN clause in the UK-Iran treaty was couched in broad terms, requiring MFN treatment in every respect and in all respect. Article IX of the Treaty of The High Contracting Parties engage that, in the establishment and recognition of Consuls-General, Consuls, Vice-Consuls, and Consular Agents, each shall be placed in the dominions of the other on the footing of the most-favored nation; and that the treatment of their respective subjects, and their trade, shall also, in every respect, be placed on the footing of the treatment of the subjects and commerce of the mostfavored nation.

Article II of the Commercial Convention of It is formally stipulated that British subjects and importations in Persia, as well as Persian subjects and Persian importations in the British Empire, shall continue to enjoy in all respects, the regime of the most-favored nation.

If Denmark is entitled under Article 36, paragraph 2, of the Statute, to bring before the Court any dispute as to the application of its Treaty with Iran, it is because that Treaty is subsequent to the ratification of the Iranian Declaration.

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This can not give rise to any question relating to most-favored-nation treatment. The court effectively distinguished between substantive benefit emanating from an MFN clause and jurisdictional matters that fall outside the ambit of that clause.

When it comes to the issue of the court s jurisdiction, the court was unequivocal in its rejection to applying the MFN clause to extend its jurisdiction beyond the limit prescribed by Iran s declaration. On the other hand, the tribunal in Plama faithfully followed ICJ s conclusion that the MFN clause has no relation to jurisdictional matters. Case Concerning the Rights of US Nationals in Morocco At the heart of the case was the question of whether the United States is entitled to exercise consular jurisdiction in Morocco in cases where an American citizen is the defendant.

In the United States concluded a bilateral treaty with Morocco conferring consular jurisdiction to the United States in all civil and criminal cases between American citizens. The United States here asserted that, by virtue of the MFN clause in the US-Moroccan treaty, all cases in which an American citizen is the defendant also fall within its consular jurisdiction to the extent that subsequent treaties between Morocco and Great Britain and Spain confer such broader jurisdiction on those states.

USA , I. It should be noted, however, that the court s jurisdiction in the case, based on France s and the United States declarations under the optional clause, was never in dispute.

Hence the MFN clause in the US- Moroccan treaty was invoked not in relation to any aspect of the court s jurisdiction or procedure. It was instead invoked in relation to the United States substantive right to exercise consular jurisdiction under the treaty.

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The Plama tribunal indeed made such observation. For example, the tribunal in Siemens stated, it is evident that the ICJ accepted that MFN clauses may extend to provisions related to jurisdictional matters, but this was not really the issue between 42 See Douglas, supra note 11 at In short, the court rejected the United States assertion of permanent incorporation by reference so that any right to exercise broader consular jurisdiction, which the United States may have enjoyed under the MFN clause, will cease insofar as Morocco treaties with third states that confer such broader rights have expired.

Ambatielos Case Mr. Ambatielos was a Greek ship owner who had concluded a contract with the British Ministry of Shipping. When a dispute subsequently arose, Ambatielos brought a claim before the English Admiralty Court in accordance with the contract.

The admiralty court ruled against Ambatielos, and a subsequent appeal also failed. While the court ruled that it is without jurisdiction to hear the merit Greece s claim, the court nevertheless found it has jurisdiction to rule that the United Kingdom must submit to arbitration pursuant to a Declaration to the Treaty of Commerce and Navigation between the two states TCN Treaty. Argentina, supra note 13 at par. Hence the issue, as far as the MFN clause is concerned, is whether such clause in the TCN Treaty extends to matters concerning the administration of justice by UK courts.

It should be clarified first that the term administration of justice here is akin to the concept of denial of justice DoJ under international law.

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DoJ in principle is a concept whereby a state incurs in the dominions and possessions of the other shall have free access to the Courts of Justice for the prosecution and defense of their rights See Ambatielos ICJ , ibid at The Ambatielos Claim Greece v.

According to Greece, Ambatielos is entitled to no less favorable treatment than those stipulated in UK s other bilateral treaties that provides for protection from DoJ. The arbitration panel, noting that Article X of the TCN Treaty stipulates that MFN is to apply in all matters relating to commerce and navigation and that such term does not have strictly defined meaning, states: It is true that the administration of justice, when viewed in isolation, is a subject-matter other than commerce and navigation, but this is not necessarily so when it is viewed in connection with the protection of the rights of traders.

Protection of the rights of traders naturally finds a place among the matters dealt with by treaties of commerce and navigation. Therefore it cannot be said that the administration of justice, in so far as it is concerned with the protection of these rights, must necessarily be excluded from the field of application of the most-favored-nation clause, when the latter includes all matters relating to commerce and navigation On the concept of DoJ in general, see Jan Paulsson, Denial of Justice in International Law , Chapter Ambatielos Arbitration, supra note 47 at 28 Thus in the passage above the arbitration panel found that MFN may operate in matters concerning administration of justice also subject to the extent it is connected with the rights of traders and the wording of the MFN clause itself.

This is not a case where the claimant, Greece, seeks to establish the arbitral panel s jurisdiction through the MFN clause where none actually exists. The panel s own jurisdiction is not in dispute.

Some early investment treaty tribunals have correctly pointed this out. The Maffezini tribunal purportedly relied on the Ambatielos decision and wrote that the arbitral panel had concluded, The protection of the rights of persons engaged in commerce and navigation by means of dispute settlement provisions embraces the overall treatment 51 Although note that the arbitration panel ultimately does not find UK treaties with other states to be more favorable than the TCN Treaty in this regard.

See Ambatielos Arbitration, supra note 47 at Plama, supra note 17 at par. Getting the Fundamental Concepts Right Since the Maffezini tribunal became the first one to apply MFN clause on matters concerning the tribunal s jurisdiction up until the latest ones in Impregilo and Hochtief, the emphasis has been on the nature of dispute settlement mechanism in particular, access to international arbitration as being essential to the protection of foreign investment.

In general, this view attaches great importance to the object and purpose of the treaty as one of the means of interpretation. However, such emphasis led those tribunals to the wrong direction. If we subscribe to this view, then there is no logical bar to the importation of, for instance, an ICSID clause into an investment treaty that does not provide for international arbitration at all.

Surely this is not a desirable outcome even for the proponent of applying MFN clause to jurisdictional matters. Stern, separate and dissenting opinion] at par 30 such distinction making the application of the MFN clause to the latter impermissible.

Therefore dispute settlement matters fall outside the ambit of an MFN clause. In order to reach such conclusion, it is essential to get at least two fundamental concepts right. They are i the rule of consent; ii the distinction between jurisdiction and admissibility. While the first concept should be straightforward, the second one often proves difficult to ascertain or apply in practice. Once these two concepts are clarified, the idea of the intrinsic distinction between MFN clause and dispute resolution provision would be clearer.

Such idea will be discussed here in the context of the broader concept of severability of dispute resolution clause. The Rule of Consent The first fundamental concept is the rule of consent, whereas the jurisdiction of an international court or tribunal is based on the consent of the parties. Most investment arbitrations are based on an investment treaty between states, such as BITs, that provide for reciprocal protection for investors from the other state party or pursuant to an option of submitting to international arbitration in the respondent state s domestic investment law.

The offer is made by the state in an investment treaty or in national investment law, which is then perfected by the investor s acceptance when instituting proceedings. This is the point advanced by arbitrator Thomas in his Hochtief dissent. He argued that Hochtief, by invoking the MFN clause to import jurisdictional terms from other treaty, has effectively attempted to alter and eliminate the conditions of Argentina s consent.

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In his view, this interplay generates a counteroffer on different terms instead of a perfected consent. Another aspect of the rule of consent is the requirement for clarity and unambiguity. First, consent to arbitration must be made in writing a universal rule both under international law and domestic arbitration laws. See also 62 See e. Marcus A Asner,[et. Susan E. A Fallacy of Victim Empowerment? Full Indexed Service. User Username Password Remember me. Notifications View Subscribe. Mahrus Ali, Ari Wibowo.

Keywords compensation; restitution; victim of crime; restorative justice. Full Text: References Buku Andi Sofyan dan Abd. Asis, Hukum Acara Pidana:

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