What happens when an Indonesian company intends to sue a foreign company for alleged Trademark, Patent, or copyright infringement, but the defendant is based overseas? Can an Indonesian court simply send a court summons directly to the country where the company is located?
In fact, specific procedures must be followed, including a mechanism commonly associated with rogatory.
In Intellectual Property (IP) disputes, the involvement of foreign parties is not uncommon. A foreign company may own a Trademark or hold a Patent that has allegedly been infringed in Indonesia. Conversely, a foreign company may itself become a defendant in a lawsuit involving alleged infringement of IP rights protected under Indonesian law.
The challenge arises when the defendant is located outside Indonesia. In such circumstances, the court must ensure that the summons is properly and lawfully served in accordance with the applicable procedural rules.
In certain cases, this requires cross-border judicial assistance through a cooperation mechanism involving the Supreme Court of the Republic of Indonesia and the Ministry of Foreign Affairs.
Understanding these procedures is essential, as they directly affect the progress of litigation, the parties’ right to defend themselves, and the procedural validity of court proceedings.
What is Rogatory?
Generally, rogatory is a formal request for judicial assistance issued by a court in one country to the competent authorities in another country to perform specific acts in connection with legal proceedings.
In cross-border civil litigation, such assistance may include obtaining evidence, examining witnesses or expert witnesses, or performing other judicial acts.
However, Indonesian judicial practice makes an important distinction between two mechanisms:
- Rogatory
Formal request for judicial assistance addressed to foreign authorities to perform specific acts required in cross-border civil proceedings, such as obtaining witness testimony or collecting evidence. - Requests for Service of Judicial Documents (Service of Process)
Requests for assistance in serving court documents on parties located overseas. These documents may include court summonses, statements of claim, notices of judgments, or other documents related to judicial proceedings.
Accordingly, when a foreign company is named as a defendant in an IP dispute in Indonesia and is located overseas, the court must determine the appropriate procedure for cross-border service of documents.
Importantly, from a more precise legal perspective, serving a court summons on a foreign defendant does not necessarily constitute a request through rogatory. It may instead involve a request for assistance in the service of judicial documents.
What Is the Legal Basis for Serving Court Summonses on Parties Located Overseas?
Under Indonesian civil procedural law, every party involved in litigation must, in principle, be given an opportunity to be informed of and respond to the proceedings against them.
This requirement reflects the principle of audi et alteram partem, which provides that both parties must be allowed to be heard.
Several relevant legal provisions and instruments include:
- Article 121 of the Herzien Inlandsch Reglement (HIR) and Article 145 of the RBg
These provisions govern the scheduling of court hearings and the issuance of summonses requiring the parties to appear before the court. - Article 100 of the Reglement op de Rechtsvordering (Rv)
This provision serves as one of the relevant legal bases for summoning parties located outside Indonesian territory. - The 2023 Memorandum of Understanding Between the Supreme Court and the Ministry of Foreign Affairs
This cooperation framework governs requests for judicial assistance in cross-border civil matters, including rogatory and the service of judicial documents. The memorandum covers a cooperation period extending through 2028. - Supreme Court Registrar’s Letter No. 1723/PAN/HK.01/8/2023
Issued on August 25, 2023, this letter updates the documentary requirements and standardized request forms for assistance in serving summonses or notifications on parties located overseas.
- Supreme Court Regulation (PERMA) No. 7 of 2022
Article 17(3) provides that summonses or notifications to parties residing overseas whose electronic addresses are known must be served electronically. Meanwhile, Article 17(4) provides that where an electronic address is unknown or unverified, summonses or notifications must be served in accordance with the applicable procedures.
Under these provisions, foreign defendants cannot all be treated in the same manner when it comes to service of process. Courts must consider the defendant’s address, electronic domicile, and the procedures applicable to the particular case and destination country.
How Are Court Summonses Served on Defendants Located Overseas?
Where cross-border judicial assistance is required to serve court documents, the process generally involves several stages.
- Identifying the Defendant and Verifying Their Address
Before filing a lawsuit, the plaintiff must establish the identity of the prospective defendant and verify an address suitable for service of process.
For foreign companies, relevant information may include the company’s legal name, registered office address, country of incorporation or establishment, and any additional details necessary to identify the defendant.
Accuracy is critical. Incomplete or incorrect address information may cause complications or delays in serving court documents. - The Court Prepares the Summons and Supporting Documents
Once the case has been registered and a hearing date has been scheduled, the court prepares the necessary documents.
Where cross-border judicial assistance is required, the court uses the standardized request forms prescribed by the Supreme Court.
The required documents may include the court summons, statement of claim, request for judicial assistance, and any translations or supporting documents required by the destination country. - The Request Is Processed Through Official Channels
Requests for assistance originating from Indonesian courts are processed through an established cooperation mechanism involving the Supreme Court and the Ministry of Foreign Affairs.
Transmission to the destination country may involve Indonesian diplomatic missions and the competent authorities in that jurisdiction.
Consequently, cross-border service of process cannot be treated in the same manner as ordinary domestic service carried out by court bailiffs on defendants domiciled in Indonesia. - Documents Are Served on the Defendant
The relevant documents are then delivered through the procedures applicable in the destination country.
Requirements and methods of service may vary between jurisdictions, including those concerning language, authorized recipients, and proof of service. - Proof of Service Determines the Next Procedural Steps
The court must obtain information confirming the outcome of the service process.
Proof and the status of service are essential in determining whether the defendant has been properly and lawfully summoned.
If the service requirements have not been satisfied, the court may need to arrange further service before the proceedings can continue.
Must All Foreign Defendants Be Summoned Through Rogatory?
Not necessarily. A defendant’s overseas location does not automatically mean every summons must be served through a physical cross-border judicial assistance mechanism.
Under Article 17(3) of PERMA No. 7 of 2022, where a party residing overseas has a known electronic domicile, summonses or notifications must be served electronically within the framework of the applicable electronic case administration and court proceedings regulations.
Conversely, where the electronic domicile is unknown or cannot be verified, service must be carried out in accordance with the applicable procedures.
A distinction must also be made between defendants with identifiable overseas addresses and those whose whereabouts are genuinely unknown.
Therefore, foreign nationality alone does not determine whether the rogatory mechanism applies. The relevant considerations include the defendant’s location or domicile, available address information, and the applicable procedural rules.
Why Does This Procedure Matter in Intellectual Property Disputes?
IP disputes frequently arise from cross-border business relationships. As a result, serving court documents on foreign defendants can become a significant procedural issue that should be addressed at the outset of litigation.
Several situations illustrate its importance.
- Trademark Disputes Involving Foreign Companies
Consider an Indonesian company that discovers an alleged infringement of its registered Trademark involving a foreign legal entity.
If the Indonesian company intends to initiate legal proceedings in Indonesia and the foreign defendant has no domicile in the country, the applicable cross-border service procedures must be carefully considered.
However, before commencing litigation, it is essential to determine whether the Indonesian court has jurisdiction over the dispute and whether the foreign company is the appropriate party to name as defendant. - Patent Disputes Arising from International Business Relationships
Patent infringement may involve foreign manufacturers, technology suppliers, or companies engaged in commercial relationships with businesses in Indonesia.
Where a patent holder brings an infringement action against a company based overseas, serving court documents may require cross-border judicial assistance.
This procedural consideration must be assessed alongside the evidence of infringement, identification of the responsible parties, and the court’s jurisdiction. - Copyright Disputes Involving Overseas Businesses
Alleged copyright infringement may also involve foreign parties, including companies operating digital services or conducting commercial activities across borders.
If such a dispute is brought before an Indonesian court as a civil lawsuit and the defendant is located overseas, the appropriate method of service must be established to ensure that the proceedings comply with applicable procedural law.
In all three scenarios, service of process is only one aspect of the broader litigation strategy.
The plaintiff must also ensure that the lawsuit is brought against the appropriate defendant, before a court with competent jurisdiction, and is supported by sufficient legal grounds and evidence.
What Are the Risks of Improper Service of Process?
Serving a court summons is more than an administrative formality. Valid service is an essential procedural safeguard that protects the rights of the parties throughout litigation.
Errors in the service process may result in several consequences:
- Delays in court proceedings. Where service cannot be confirmed or fails to meet the applicable requirements, the court’s hearing schedule may be affected.
- Additional litigation costs. Cross-border procedures may involve document delivery, translation, and other expenses arising from applicable requirements.
- Challenges to procedural validity. Improper or legally defective service may give rise to objections concerning the defendant’s right to be heard and to present a defense.
- Complications in case management. Uncertainty regarding the status of service may affect when the court can proceed with its examination of the case.
What Happens if a Foreign Defendant Fails to Appear Despite Being Properly Summoned?
Under Indonesian civil procedural law, Article 125 of the HIR generally allows a court to issue a default judgment (verstek) in the defendant’s absence, provided that the applicable legal requirements are satisfied.
However, a defendant’s failure to appear does not automatically mean that the plaintiff’s claims will be granted.
The judge must still assess whether the summons was lawfully served and whether the claims have sufficient legal grounds.
How Long Does It Take to Serve Court Summonses Overseas?
There is no single timeline applicable to all cross-border service procedures.
The duration may depend on several factors, including the destination country, completeness of the documents, translation requirements, delivery methods, and responsiveness of the authorities involved.
Plaintiffs should therefore not assume that serving a foreign company will take as little time as serving a company domiciled in Indonesia.
In IP disputes involving foreign parties, litigation planning must account for the additional time potentially required to complete cross-border service of process.
This becomes particularly important when urgent commercial interests are at stake, such as ongoing alleged infringement, continued distribution of disputed products, or potentially escalating financial losses.
What Should You Prepare Before Suing a Foreign Company?
Before initiating IP litigation against a party located overseas, several important matters should be carefully considered.
- Verify the defendant’s identity and legal status. Carefully examine the company’s legal name, registered address, and connection to the alleged infringement.
- Confirm the jurisdiction of the Indonesian court. Not every dispute involving a foreign company automatically falls within the jurisdiction of Indonesian courts. A proper jurisdictional assessment is essential.
- Prepare evidence of IP ownership and the alleged infringement. Depending on the nature of the dispute, relevant evidence may include Trademark or patent certificates, copyright ownership documentation, licensing agreements, and records of commercial activities.
- Identify the applicable service of process mechanism. This includes verifying the defendant’s domicile information, assessing whether electronic service is available, and determining the requirements for cross-border service of judicial documents.
- Account for time and costs. Document translation and service through international procedures may affect both the litigation timeline and overall legal expenses.
Early preparation can help minimize administrative and procedural obstacles that might otherwise disrupt the progress of litigation.
If you require legal assistance with an Intellectual Property dispute in Indonesia, including cases involving foreign companies or individuals, AFFA is ready to assist you in developing effective IP protection and enforcement strategies in accordance with applicable Indonesian law.
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About AFFA:
Established in 1999, AFFA Intellectual Property Rights is an Indonesia-based boutique IP law firm serving international brands and innovators, offering full-service support—from prosecution and licensing to enforcement and commercialization—in Indonesia’s dynamic IP landscape. Our firm is widely recognized for its excellence, with accolades including “Best Boutique Law Firm in Indonesia” and “IP Enforcement Firm” at the Indonesia Law Firm Awards 2025 by Asia Business Law Journal, as well as being listed as a “Recommended Firm 2024 — Indonesia” by WTR 1000: The World’s Leading Trademark Professionals.
