Draft Law on Private International Law Regulates Cross-Border Civil Relations in Indonesia

1. Introduction

1.1 Background

The Government and the House of Representatives are currently discussing the Draft Law on Private International Law (“PIL Bill”), which is included in the 2026 National Priority Legislative Program. The PIL Bill is prepared to provide a more systematic and integrated framework for civil legal relations involving foreign elements, including the determination of applicable law, jurisdiction, as well as the recognition and enforcement of foreign court judgments, as outlined in the Preamble and General Elucidation.

To date, the regulation of private international law in Indonesia remains dispersed across various laws and regulations, jurisprudence, and doctrines. Most provisions still originate from old colonial regulations, whose scope and approach are no longer adequate to address the development of civil legal relations involving more than one legal system.

This condition has led to differing interpretations and legal uncertainty in resolving private international law issues, both for courts and for the parties involved. Accordingly, a more comprehensive and codified regulation is required.

1.2 Problem Identification

The increasing economic, social, and cultural interactions among countries have created a need for legal certainty within the national legal system, particularly in handling civil cases involving more than one jurisdiction. Bayu Seto Hardjowahono, in his book Dasar-Dasar Hukum Perdata Internasional, identifies three main issues in resolving cross-border disputes, such as determining the competent court, establishing the applicable law to a legal event, and recognizing and enforcing foreign court judgments by national courts. These issues have not yet been codified within a single national legal instrument.

1.3 Objective

This article aims to analyze and explain the comparison between the provisions of the PIL Bill and colonial law, as well as the regulation under the PIL Bill concerning civil legal relations involving foreign elements, the protection of the rights and obligations of the parties, and the resolution of cross-border civil disputes.

 

2. Legal Basis and Revocation of Colonial Regulations

2.1 Revocation of Previous Provisions and Regulatory Adjustments

Articles 68 and 69 of the PIL Bill revoke several provisions that have been used in the practice of private international law in Indonesia. The revoked provisions include Articles 16, 17, and 18 of the Algemeene Bepalingen van Wetgeving (“AB”), as well as Articles 100 and 436 of the Reglement op de Burgerlijke Rechtsvordering (“RV”).

Furthermore, the PIL Bill establishes a “lex specialis” on children born from marriages with foreign elements by excluding the role of the Heritage Hall (Balai Harta Peninggalan) as supervisory guardian. Previously, supervision of all children without guardians in Indonesia was generally entrusted to the Heritage Hall, as stipulated in Law Number 23 of 2002 on Child Protection, as amended by Law Number 35 of 2014 on Amendments to Law Number 23 of 2002 on Child Protection.

2.2 Comparison of Previous and New Regulations

 

3. Determination of Personal Status and Resolution of Conflict of Laws

3.1 Re-determination of Connecting Factors for Personal Status and Habitual Residence

Article 13 of the PIL Bill stipulates that a person’s personal status is determined based on the principle of nationality, which was previously also applied under Article 16 AB. This regulation aligns with the view that Indonesia adheres to the nationality principle, meaning that a person’s legal status and capacity are determined by the law of the country of which the person is a national, even if residing abroad at the time of the legal event. Article 13 also regulates personal status for stateless individuals by determining that their personal status is governed by the law of their habitual residence. The concept of habitual residence provides a clearer basis as it refers to the place where a person actually lives daily, rather than merely administrative domicile.

Indonesian law applies to personal status of Indonesian citizens or foreign nationals who have resided habitually in Indonesia for at least 5 (five) consecutive years or 10 (ten) non-consecutive years. The application of Indonesian law to such foreign nationals is limited to legal acts or civil legal events in the fields of personal, family, and inheritance law.

3.2 Renvoi Mechanism

In private international law, renvoi occurs when the foreign law designated by a country’s conflict of laws rules refers back to the law of the designating country. Generally, three approaches are recognized:

• Single/Partial Renvoi (remission): The forum court accepts the reference back from foreign law to its own law. 
• Double/Total Renvoi: The forum court positions itself as a foreign court, including fully applying foreign conflict rules, even if they refer to a third country (transmission). 
• No Renvoi: The forum court disregards foreign conflict rules and directly applies the internal law (lex causae) of the designated country. 

Article 8 of the PIL Bill adopts the Single/Partial Renvoi mechanism by stipulating that if the designated foreign law refers back to Indonesian law, the court shall apply Indonesian law. This provision prevents repeated references and ensures clarity in determining applicable law.

3.3 Nationality of Legal Entities (Associations)

Pursuant to Article 20, associations have the capacity and authority to perform legal acts and bear rights, obligations, and liabilities as a single entity. Associations include, but are not limited to, partnerships of capital or persons established by agreement to achieve common objectives in social, religious, commercial, or humanitarian fields, whether incorporated or unincorporated, and whether for profit or non-profit.

The nationality and personal status of such associations are governed by the law of the place where they are established and/or domiciled. Domicile refers to the place of registration, central administration, main place of business, or center of control. Associations established outside Indonesia but operating within Indonesia are subject to Indonesian law.

 

4. Family Law and Cross-Border Child Protection

4.1 Validity of Overseas Marriages and Legal Recognition

Marriages involving foreign elements are recognized as valid in Indonesia if they fulfill two cumulative requirements under Article 21 of the PIL Bill. Such marriages include marriages between Indonesian citizens and foreign nationals, between foreign nationals in Indonesia, or between Indonesian citizens conducted abroad. The first requirement concerns material aspects, namely compliance with the personal law of each party, including minimum age, consanguinity, and parental consent. The second concerns formal aspects, namely compliance with the law of the place where the marriage is celebrated (lex loci celebrationis), such as registration or prior notification. Here is the illustration of its application:

Illustration of Indonesian citizen marrying a Dutch national in Singapore

• Material requirements for the Indonesian citizen → governed by Indonesian law (UU Perkawinan): minimum age of 19 years, parental consent if under 21, and not currently married. 
• Material requirements for the Dutch national → governed by Dutch law: minimum age of 18 years and absence of marriage prohibitions. 
• Formal requirements → governed by Singapore law (lex loci celebrationis): registration with the Registry of Marriages and 21-day prior notice. 

Regarding matrimonial property, if the parties have different nationalities and no marital agreement, the applicable law is the law of their habitual residence during the marriage (Article 22 paragraph (3)). If such residence cannot be determined, the applicable law is the law of the habitual residence of one party deemed by the Indonesian court to have the closest and most substantial connection to the property.

4.2 Intercountry Adoption and the Best Interests of the Child

Intercountry adoption must prioritize the best interests of the child at every stage of the process. This provision is set out in Articles 30, 35, and 36 of the PIL Bill. In its implementation, the adoption process is subject to the law governing the child’s personal status as well as the law governing the personal status of the adoptive parents. Pursuant to Article 35 of the PIL Bill, intercountry adoption is governed by the law applicable to the personal status of the child and the adoptive parents, with due regard to the best interests of the child.

Furthermore, under Article 36 of the PIL Bill, the legal relationship between the adopted child and the biological parents and biological family following intercountry adoption is governed by the law of the child’s personal status at the time the adoption takes place.

 

5. Property Law and Transfer of Rights through Inheritance

5.1 Status of Movable Property of Indonesian Citizens

The legal status of property is, in principle, governed by the law of the place where the property is located (lex situs), as stipulated in Articles 37 and 38 of the PIL Bill. Movable property that is not registered constitutes an exception to this principle and is subject to the law governing the personal status of its owner, as provided in Article 39 of the PIL Bill. Accordingly, with respect to unregistered movable property carried abroad by Indonesian nationals, the classification and rights over such property continue to be governed by the law of the owner’s personal status. As Indonesian nationals are subject to Indonesian law, such property remains regulated under Indonesian law even when it is located outside the territory of the state.

5.2 Cross-Border Inheritance Mechanism

The law governing succession is, in principle, determined by the law of the decedent’s personal status at the time of death, as stipulated in Article 42 of the PIL Bill. Pursuant to Article 44 of the PIL Bill, the succession of proprietary rights over movable property is carried out in accordance with the law applicable to the decedent’s personal status at the time of death. Meanwhile, for immovable property such as land and buildings, Article 45 of the PIL Bill provides that the transfer of rights remains subject to the law of the place where the property is located. This provision ensures that the control and transfer of rights over land in Indonesia remain governed by national law. This approach is consistent with the explanation of Sudargo Gautama regarding the application of the *lex rei sitae* principle, which means that all legal aspects relating to ownership, encumbrance, and transfer of rights over land must follow the law of the state where the land is situated. In addition, under Article 46 of the PIL Bill, the succession of proprietary rights over registered property is conducted in accordance with the law of the place where the property is registered.

 

6. Freedom of Contract and Challenges in the Digital Era

6.1 Autonomy in Choice of Law and Public Policy Limitations

The PIL Bill grants parties in commercial contracts the freedom to determine the law governing their agreement, as provided under Articles 47 and 51 of the PIL Bill. The regulation on choice of law in agreements adopts the principle of freedom of contract, or party autonomy. This principle confers upon parties in cross-border commercial transactions the right to independently select the legal system that will govern their contract. Pursuant to Article 47 of the PIL Bill, an agreement is subject to the law chosen and agreed upon by the parties. The validity of an agreement must satisfy both substantive and formal requirements. Substantive requirements are governed by the law applicable to the Personal Status of the parties, while formal requirements are governed by the law of the place where the agreement is concluded.

Based on Article 51 of the PIL Bill, the parties may choose different applicable laws to govern specific parts of the agreement, distinct from the law governing other parts of the same agreement. The applicable law governing an agreement includes:

1. The essential requirements for the validity of the agreement and the legal consequences of its invalidity;
2. The interpretation of the terms of the agreement;
3. The rights and obligations arising for the parties from the agreement;
4. The performance of the agreement;
5. The legal consequences of non-performance by the parties;
6. The termination of obligations arising from the agreement; and/or
7. The limitation periods for claims arising under the agreement.

In the absence of a choice of law, the performance of the agreement and the legal consequences arising therefrom are governed by the law of the place that has the most real and substantial connection to the agreement. The phrase “absence” refers to situations where no law has been expressly chosen and agreed upon by the parties, where such choice cannot be determined, or where it is invalid under mandatory rules of law, morality, or public order. In the event that an Indonesian court is unable to determine the law with the most real and substantial connection to the agreement, the parties’ agreement to submit the dispute to an Indonesian court shall constitute a choice of law in favor of Indonesian domestic law.

6.2 Electronic Transactions and Consumer Protection

The PIL Bill regulates electronic transactions and their legal consequences in legal relationships involving foreign elements, as provided under Articles 54 and 55. These provisions recognize that the law unilaterally determined by digital service providers may bind the parties, insofar as it does not conflict with mandatory legal provisions and standards of propriety in Indonesia. Where such unilateral terms are declared invalid or create an imbalance that is detrimental to consumers, the legal consequences of the electronic transaction shall be governed by Indonesian law.

 

7. Tort

The determination of whether an act constitutes a tort and its legal consequences, in principle, follows the law of the place where the act occurred (lex loci delicti commissi), as provided under Article 57 of the PIL Bill. Pursuant to Article 58 of the PIL Bill, the parties in a tort claim may agree, prior to the commencement of proceedings, to choose the applicable law from among the legal systems that have the most real and substantial connection to the tort, subject to the provisions of Article 50. Such agreement of the parties to select the governing law, as stipulated in the contract, shall not set aside the applicability of mandatory rules of law, morality, or public order prevailing in the forum.

 

8. International Jurisdiction of Indonesian Courts

8.1 Expansion of Jurisdiction

The PIL Bill regulates the jurisdiction of Indonesian courts to adjudicate civil cases containing foreign elements, as stipulated in Article 59. Indonesian courts have jurisdiction where the defendant has habitual residence in Indonesia, has a place of business or a representative office in Indonesia, the object of the dispute is property located in Indonesia, or the tortious act occurred within Indonesian territory.

On the other hand, Article 9 of the PIL Bill provides that Indonesian courts may apply Foreign Law in the settlement of Private International Law cases. The elucidation of Article 9 specifies two methods of applying foreign law: 

1. As a fact: it must be pleaded and proven.
2. As law: the judge applies foreign law based on scholarly analysis or the application of statutory regulations.

However, pursuant to Article 5, Indonesian courts may refuse to apply foreign law that contradicts Mandatory Rules, or that may result in a conflict with Indonesian morality or public order. Under Article 6, in the event of a difference in qualification between foreign law and Indonesian law, the qualification shall be determined based on Indonesian law (lex fori qualification). According to Article 10, in handling Private International Law cases, Indonesian courts may request assistance from foreign authorities or institutions (including presenting experts, summoning parties, and processing court documents) to understand the applicable foreign law.

8.2 Grounds for Declining Jurisdiction and Arbitration Agreements

The PIL Bill regulates circumstances in which courts may refuse to hear civil cases involving foreign elements, as stipulated in Article 60. Courts are required to decline jurisdiction where the parties are validly bound by an arbitration clause or have agreed to an exclusive choice of a foreign court forum. Furthermore, courts may decline jurisdiction where the same case is being examined by a foreign court with equivalent jurisdiction, in order to prevent conflicting judgments.

 

9. Recognition and Enforcement of Foreign Judgments

9.1 Types of Recognizable Judgments

The PIL Bill regulates the types of foreign court judgments that may be recognized and enforced in Indonesia. Pursuant to Article 64, Foreign Court Judgments may be recognized in Indonesia. The types of judgments include:

1. Declaratory judgments, which serve to affirm or determine a legal status or condition;
2. Constitutive judgments, which establish a right, title, or legal status;
3. Condemnatory judgments, which contain an order or sanction requiring one party to perform a specific obligation.

Under Article 65 paragraph (1), the enforcement of condemnatory judgments is subject to reciprocal international agreements between Indonesia and the state of origin of the judgment. Article 65 paragraph (2) provides that an application for enforcement shall be submitted to the Supreme Court by the applicant or their legal representative. The required documents include a copy of the judgment and its sworn translation, a document confirming its final and binding status, and (in the case of a default judgment) proof of proper notification to the absent party.

According to Article 65 paragraph (4), the Supreme Court does not re-examine the merits of the case in an application for enforcement of a Foreign Court Judgment. The judgment shall be enforced after obtaining an exequatur from the Chief Justice of the Supreme Court. The exequatur is executed by an Indonesian court designated by the Supreme Court. Therefore, the examination or exequatur process through the Supreme Court constitutes a mandatory stage to ensure that the foreign judgment was rendered by a competent court and does not violate Indonesian public order. Previously, under Article 436 of the RV, foreign judgments could not be enforced at all in Indonesia, requiring the case to be refiled from the beginning before an Indonesian court. The PIL Bill changes this by introducing an exequatur mechanism. 

9.2 Public Policy Objection Mechanism

The PIL Bill stipulates that the Supreme Court does not re-examine the merits of a case in relation to foreign court judgments for which recognition and enforcement are sought in Indonesia. This provision is set out in Article 65.

Nevertheless, Indonesian courts may refuse the recognition and enforcement of a foreign judgment if its contents are contrary to public order, moral norms, or mandatory provisions of Indonesian law, as provided under Article 5 and Article 65. This refusal mechanism allows the courts to ensure that foreign judgments enforced in Indonesia remain consistent with the fundamental principles of national law. 

9.3 Exequatur Procedure and Reciprocity Principle

The PIL Bill provides that the enforcement of foreign court judgments is carried out through an application for exequatur submitted to the Supreme Court, as stipulated in Articles 64 and 65. For judgments of a condemnatory nature, their enforcement requires the existence of reciprocity between Indonesia and the state of origin of the judgment. In the absence of a reciprocal agreement, condemnatory judgments may be recognized but cannot be enforced (Article 66). The PIL Bill uses the phrase “reciprocal international agreement,” which may take the form of either a bilateral agreement or a ratified multilateral convention.

On the other hand, declaratory and constitutive judgments do not require a reciprocal agreement, and therefore may be recognized provided they satisfy procedural requirements and do not violate public order. The applicant must submit an official copy of the judgment that has obtained final and binding legal force, along with an official translation prepared by a sworn translator, ensuring that the contents of the judgment sought to be enforced can be properly understood by Indonesian courts.

 

10. Closing

The PIL Bill is designed to replace colonial regulations (the AB and the RV) with a codified and modern system of private international law in Indonesia. This framework provides that a person’s personal status is determined based on nationality, or habitual residence for stateless individuals, while property law and the transfer of rights over immovable property consistently follow the principle of lex situs (the law of the place where the property is located). In the areas of family law and contracts, the Bill emphasizes the validity of marriage based on personal law and grants autonomy to parties in commercial transactions to choose the applicable law (party autonomy), provided that such choice does not conflict with national public order.

With regard to enforcement, the PIL Bill expands the jurisdiction of Indonesian courts through the existence of a genuine legal nexus and introduces mechanisms for the recognition and enforcement of foreign court judgments. Through the exequatur procedure before the Supreme Court, foreign judgments may now be enforced without a re-examination of the merits, provided that reciprocity exists and that the judgment complies with moral norms and mandatory provisions of Indonesian law. These reforms are intended to ensure legal certainty and provide maximum protection for legal subjects engaged in increasingly complex cross-border interactions in the digital era.

 

 

References

Gautama, Sudargo. Indonesian Private International Law. Jakarta: Eresco, 1987.

Hardjowahono, Bayu Seto. Fundamentals of Private International Law. Bandung: Citra Aditya Bakti, 2013.

Draft Law on Private International Law (February 2026 Version).

Law Number 23 of 2002 on Child Protection as amended by Law Number 35 of 2014.

Algemeene Bepalingen van Wetgeving voor Nederlandsch Indie (Staatsblad 1847:23).

Reglement op de Burgerlijke Rechtsvordering (Staatsblad 1847:52 in conjunction with Staatsblad 1849:63).