Commercial disputes in the Indonesian civil proceedings may involve legal relationships that extend beyond the original parties. As the subject matter may concern assets, contractual rights, or financial interests held by or connected to third parties, excluding such parties from the court proceedings may result in exposing them to significant legal and financial risks. In some cases, liability arising from the disputes may even rest with these third parties. To address these risks and to uphold procedural fairness, the Indonesian civil procedural laws provide mechanisms for third‑party interventions within ongoing court proceedings.
Third-Party Interventions under the Indonesian Law
Intervention is the participation of a third party with a legal interest in an ongoing civil proceeding. It enables such parties to protect their own rights or the interests of the original litigants without having to initiate a separate proceeding.
In Indonesia, the Regulation on Civil Procedures (Reglement op de Rechtsvordering or “Rv”) permits third parties with a connected legal interest to intervene or join one of the existing parties in a civil case. In another scenario, a third party may be brought into the proceeding at the request of the original parties, particularly to assume or share liability.
Voeging, Tussenkomst, and Vrijwaring
According to Articles 70 and 279 of the Rv, there are 3 (three) types of third-party intervention, they are:
1.Voeging
Voeging is an intervention by a third party on their own initiative to join one of the existing litigants, either the plaintiffs or the defendants, in an ongoing civil proceeding.
In voeging, the intervenor does not act as an independent party. They take part in the proceeding solely as a supporting party to one of the original parties and therefore are not allowed to assert their own separate claims.
Hence, to intervene in an ongoing civil proceeding by way of voeging, a third party must demonstrate legal interests directly connected to the subject matter of the dispute, which requires protection or defense through aligning with one of the original parties.
2. Tussenkomst
Tussenkomst is a third-party intervention in an ongoing civil proceeding which also initiated on the initiative of the third parties themselves. However, such intervention is often intended to defend the intervenor’s own legal rights independently, without joining or aligning with any of the existing parties in the court proceeding.
A third party with sufficient legal grounds to defend their own interests may intervene in an ongoing civil proceeding as an independent party by filing an application for tussenkomst. If the presiding judges grant the application, the intervenor is permitted to assert their own claims within the case aside from the original parties’. Therefore, tussenkomst may take place only if a third party has legal interests of their own that are directly tied to the matter being examined in the ongoing civil proceeding.
3. Vrijwaring
Unlike the third‑party interventions discussed earlier, vrijwaring is an intervention when a third party is brought into an ongoing civil proceeding at the request of one of the original parties. Its purpose is typically to transfer or share liability arising from the dispute with a third party who is believed to be, or should be, partly responsible.
In contrast to voeging and tussenkomst, vrijwaring involves a third party joining an ongoing civil proceeding only at the request of an original party rather than on their own initiative, without necessarily having claims of their own to pursue.
The Practice of Third-Party Interventions
- In voeging and tussenkomst, a third party with a legal interest connected to the subject matter of the dispute may apply to the court for intervention in an ongoing civil proceeding. In contrast, in vrijwaring, the request to involve a third party is submitted by one of the original parties to the presiding judges.
- Under Articles 279 and 280 of the Rv, in cases of voeging and tussenkomst, a third party may file an application for intervention at any hearing before the schedule for submission of conclusions.
- With respect to vrijwaring, Article 70 of the Rv provides that a defendant may submit a request at the initial hearing, while a plaintiff may submit such a request during the hearing scheduled for the submission of a reply.
- Once an application or request for third‑party intervention is filed, the presiding panel of judges will decide whether to grant or deny it by issuing an interlocutory decision or interim order.
- If the application is granted, the third party will be heard in the proceeding. If denied, the case continues without the third party’s involvement.
Third-Party Interventions and the Mandatory Court-Annexed Mediation
Under the Indonesian law, parties are required to undergo court‑annexed mediation before the commencement of a civil proceeding. However, the Supreme Court Regulation No. 1 of 2016 on Court‑Annexed Mediation Procedures exempts disputes involving third‑party interventions from this mandatory mediation.
In the specific case of vrijwaring, the request is typically submitted by the defendant at the initial hearing. Since the judges may rule on the intervention before mandatory mediation begins, the third party may still participate in the mediation if the request for vrijwaring is granted, notwithstanding the exemption.
Furthermore, the Chief Justice of the Indonesian Supreme Court, through Guidelines No. 359/KMA/SK/XII/2022, implicitly permits mandatory mediation to be reconvened between the original party requesting vrijwaring and the third party, if the intervention is approved after the initial mediation between the original parties has concluded.
