Analisis Asas Pacta Sunt Servanda Terhadap Keberlakuan Kontrak Kerja Sama Usaha Hulu Minyak Dan Gas Bumi Dengan Kewajiban Non-Kontraktual

Tua, Jhonatan Sintong Saut Maruli (2021) Analisis Asas Pacta Sunt Servanda Terhadap Keberlakuan Kontrak Kerja Sama Usaha Hulu Minyak Dan Gas Bumi Dengan Kewajiban Non-Kontraktual. Other thesis, Universitas Islam Riau.

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Abstract

Oil and gas upstream business activity has a high-risk-high-cost characteristic where all capital and risk are borne by contractor of oil and gas cooperation contract (COGCC). Therefore, partnership mechanism in form of cooperation contract is deemed able to stimulate oil and gas block development (i.e., Rokan PSC between PT Chevron Pacific Indonesia (PT CPI) and Republic of Indonesia Government). By the said contract mechanism, then basic principle of contract law is applied namely Pacta Sunt Servanda in which contract bind the agreed parties as the law being. However, in practice the oil and gas cooperation contract may easily intervened by the issuance of Minister of Finance Regulation No. 140/PMK.06/2020 regarding Management of State-Owned Asset in Oil and Gas Upstream Business Activity (MoF No. 140/2020) which impose noncontractual obligation to COGCC. Main problems in this research are: (1) how is stipulation of noncontratual obligation for COGCC with regards to management of state owned aset in form of land within MoF No. 140/2020? and (2) how is applicability of Pacta Sunt Servanda principle in upstream oil and gas cooperation contract between PT CPI and Republic of Indonesia Government against non-contractual obligation with regards to management of state owned aset in form of land within MoF No. 140/2020? Research method used is normative law research method and it is inherently a descriptive analytical research. The issuance of MoF No. 140/2020 also presented several polemics in the application of Pacta Sunt Servanda principle in relation with the implementation of oil and gas cooperation contracts (specifically Rokan PSC). MoF No. 140/2020 creates non-contractual obligations imposed to the COGCC with regards to protection on State-Owned Asset in Oil and Gas Upstream Business Activity, in form of administrative, physical, and legal protection. All costs arising from the implementation of these obligations must be borne in advance by the COGCC. This circumstance of course makes the implementation of Pacta Sunt Servanda principle being distorted and inconsistent at a practical level. In one case, the Republic of Indonesia Government c.q. SKK Migas can uphold the sacred power of contracts when they want to impose additional clauses in the Rokan PSC through an addendum mechanism. But on the other hand, the Republic of Indonesia Government c.q. Minister of Finance even imposed non-contractual obligations unilaterally by issuing MoF No. 140/2020. The binding capacity of the contract as a law being, has become questionable with ease of third-party intervention carried out by Minister of Finance (which incidentally not the contracting party). The ease of intervention to oil and gas cooperation contract can lead to the potential appearance of negative stigma against the oil and gas investment climate in Indonesia. The calculation of risk in upstream oil and gas business activity becomes difficult to predict, even though as mentioned earlier, all capital and risks are borne by the COGCC.

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