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

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.