ALSA 2025 meeting

Transnational employment contracts play an important role as legal basis for cross-border employment relations, which are increasing in Asia in recent years. These relations give rise to a number of legal issues, particularly in transnational labour disputes area. Indonesian Courts are increasingly confronted with industrial relations cases involving foreign elements. In many cases, the legal facts suggest that foreign law could be applicable, indicating that such cases fall within the scope of private international law.

Although private international law in field of employment has developed rapidly in Europe or even Asia, Indonesian Courts do not seem to fully understand the transnational characteristics disputes resolution. Indonesian Courts still tend to apply Indonesian Law directly without sufficient analysis of the elements of foreign law.

One concrete example is the Supreme Court Decision Number 38 K/Pdt.Sus-PHI/2015 and 616 K/Pdt.Sus-PHI/2014. Although there are a number of legal facts that lead to the application of South Korean law (such as the nationality of the workers, the employer place of establishment, the place where the employment contract was signed, or even an implied choice of law), the Indonesian Court still does not take these legal facts into account and only depends on Indonesian Law. This continued judicial pattern might risks the neglect of parties contractual expectations and the protection of workers normative rights.

For this reason, a juridical-dogmatic research is necessary to examine and evaluate the Indonesian Court Decisions in comparison with foreign courts decisions. This research may help Indonesian courts use legal instruments and methods for determining the applicable law that are commonly used in multilateralism approaches within private international law principles. Determining the applicable law is crucial to avoid applying irrelevant laws and to protect workers from risks due to imbalance bargaining power.