A Post-Colonial Comparative Critical Legal Study of the Open Norm of Reasonableness and Fairness (or Good Faith) in Dutch and Indonesian Corporate Law

Posted: 24 May 2021

See all articles by Bart Jansen

Bart Jansen

Law and Ethics

Faizal Kurniawan

Airlangga University - Faculty of Law

Annida Putri

affiliation not provided to SSRN

Tineke Lambooy

Utrecht University School of Law

Date Written: May 18, 2021

Abstract

Both Dutch and Indonesian corporate law contain ‘open norms’. This means that there is room for interpretation of the content and purpose of these standards. The best-known Dutch open norm is that of ‘reasonableness and fairness’ — a standard also known in Indonesia as ‘reasonableness and fairness’ and as ‘good faith’. This contribution offers a perspective on the anthropo-legal background that is so important to the interpretation of open norms both in Dutch and in Indonesian corporate law. The comparison of good faith and reasonableness and fairness standards in the corporate laws of both countries is interesting because of their colonial and, therefore, legal ‘transplant’ relationship. The countries differ significantly in terms of cultural, economic, political, and religious dimensions, which influences the way in which open norms are interpreted. Interestingly, a centralistic legal system is applied in the Netherlands, as opposed to a pluralistic legal system in Indonesia. This fundamental distinction leads to differences in the interpretation of open norms in the corporate law of both countries. The findings show that although corporate law as well as the open norms contained therein are rooted in Dutch and Indonesian civil law, corporate law has undergone a development that is partly independent therefrom. At the same time, the manner in which corporate open norms are interpreted in the Dutch and Indonesian legal systems is remarkably similar.

Suggested Citation

Jansen, Bart and Kurniawan, Faizal and Putri, Annida and Lambooy, Tineke, A Post-Colonial Comparative Critical Legal Study of the Open Norm of Reasonableness and Fairness (or Good Faith) in Dutch and Indonesian Corporate Law (May 18, 2021). ICCLJ volume 15 issue 1 (2021)., University of Oslo Faculty of Law Research Paper No. 2021-11, Available at SSRN: https://ssrn.com/abstract=3848736

Bart Jansen (Contact Author)

Law and Ethics ( email )

Straatweg 25
P.O. Box 130
Breukelen, 3620 AC
Netherlands

Faizal Kurniawan

Airlangga University - Faculty of Law ( email )

Dharmawangsa Dalam Selatan
Surabaya, East Java 60286
Indonesia

Annida Putri

affiliation not provided to SSRN

Tineke Lambooy

Utrecht University School of Law ( email )

3508 TC Utrecht
Utrecht
Netherlands

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