Ali Budiardjo, Nugroho, Reksodiputro
Ali Budiardjo, Nugroho, Reksodiputro (ABNR) was founded in 1967 as a partnership of legal consultants engaging in all aspects of Indonesian business law. The firm is one of Indonesia’s largest independent full-service law firms.Show more
Fintech-based lending in Indonesia grew rapidly in 2019. Various crowdfunding models (in particular, peer-to-peer lending) emerged and gave the regulatory authorities a new focus for their attention. In this regard, the Financial Services Authority issued a number of new regulations concerning equity funding, digital financial innovation in the financial services sector, standing facilities, money markets and open operations.
Bank Indonesia recently issued an umbrella regulation on the application of prudential norms. As with the now revoked Regulation on Offshore Loans in the Banking Sector (as amended), Regulation 21 stresses the importance of compliance with prudential norms for maintaining macroeconomic and financial system stability. However, while the previous regulation's scope was confined to offshore bank loans, Regulation 21 encompasses "offshore bank debt and FX-denominated other bank liabilities".
Until recently, the Financial Services Authority (OJK) had never issued an overarching regulation governing the development of the fintech sector as a whole or replicating the sandbox regime and pre-audit mechanism established by Bank Indonesia for fintech in the payments arena. This gap has now been filled by OJK Regulation 13/POJK.02/2018 on Digital Financial Innovation in the Financial Services Sector.
After nine years of regulating e-money transactions, the Indonesian Central Bank has responded to changes in technology by replacing the previous e-money regulation. The issuance of the new regulation has significantly changed the e-money landscape, as it applies to all licensed e-money players and prioritises consumer protection by requiring minimum capital and the placement of floating funds.
The new Financial Services Authority Regulation on the Single Presence Policy in Indonesian Banking was issued in July 2017. The policy aims to ensure that a single entity does not simultaneously hold a controlling interest in more than one bank. Therefore, a controlling shareholder of more than one bank is required to merge or consolidate its controlled banks, establish a bank holding company or establish a holding function.
The Financial Services Authority (OJK) has introduced rules for the employment of expatriates and the transfer of knowledge in the banking sector, pursuant to which it has taken over the supervisory role previously performed by Bank Indonesia. Therefore, in order to employ an expatriate, a bank must now obtain OJK approval and submit reports on its expatriate staff. An expatriate's work permit will be processed by the Ministry of Manpower only after having been approved by the OJK.
New regulations require the banking and finance industries to comply with heightened supervision by financial authorities and will be welcomed by foreign investors and customers concerned with Indonesia's financial stability. Key developments include intensifying reporting obligations for systemically important banks, introducing tiered supervision and raising safeguard measures.
To support the development of a technology-based financial industry in Indonesia, the Financial Services Authority recently issued Regulation 77/POJK01/2016 regarding technology-based fund-lending services. The regulation is designed to protect consumer and national interests, while at the same time provide opportunities for local providers of financial technology to grow and contribute to the national economy.
Bank Indonesia (the Indonesian central bank) has issued a regulation and accompanying circular letter governing the mandatory use of rupiah for all cash and non-cash transactions. In prescribing the mandatory use of rupiah – with certain exemptions and special considerations – the regulation and circular letter apply the territoriality principle that underlies many of Bank Indonesia's other regulations.
Bank Indonesia has issued a regulation concerning the mandatory use of the rupiah within Indonesian territory, which applies to cash transactions as of March 31 2015 and non-cash transactions as of July 1 2015. However, there are a number of issues on which the regulation is less clear than might have been hoped.
With the introduction of the new Banking Bill in Parliament, the Indonesian banking industry is set to enter a new phase. Unlike the existing law, the new bill is clearly underpinned by a spirit of nationalism, stressing reciprocal treatment of Indonesian banks operating in other countries and requiring the financial authorities to ensure this reciprocity at home.
The newly established Financial Services Authority recently issued a set of regulations governing the financial services industry. The regulations are intended to promote sustainability, stability and competitiveness in light of the increasing complexity of transactions and interactions between financial institutions, as well as between companies within a financial conglomerate.
The Indonesia Deposit Insurance Corporation (LPS) recently issued the new Regulation on Procedures to Sell Shares of Failing Banks, which replaces the previous regulation. The new regulation provides clearer and more thorough information regarding procedures to sell shares of failing banks. Among other things, the new regulation requires the LPS to sell all shares of rescued banks.
As a reaction to the volatility of the rupiah over the past year, Bank Indonesia has issued a new regulation on hedging transactions. The regulation is expected to encourage the use of derivatives as a tool to hedge foreign currency exposure, and subsequently to reduce foreign currency spot transactions and ease pressure on the rupiah.
The Indonesian central bank, Bank Indonesia, has issued two regulations that will change the way in which banks in the country do business. The regulations govern the business activities of banks on the basis of their capital. As a result, commercial banks which in the past had more freedom in their operations are now limited to undertaking business transactions that are in line with their capital strength.
Bank Indonesia has issued the updated Regulation on Single Ownership in Indonesian Banks in an attempt to improve the competitiveness of Indonesia's banking industry in light of economic development at regional and global levels by reducing the number of Indonesian banks through consolidation. This policy is commonly known as the 'single presence policy' and was first introduced by Bank Indonesia in 2006.
After heated debate among regulators and politicians on what was seen as unhealthy concentrated ownership of banks by groups of companies – particularly foreign groups of companies – Bank Indonesia, the country's central bank and industry regulator, has issued the Regulation on Ownership of Shares in Commercial Banks, which restricts ownership of banks by individual shareholders.
Parliament's long-awaited approval of the Bill on the Financial Services Authority is one of the most significant developments in the history of Indonesian law and will change the landscape of the country's financial industry. It not only establishes a new financial services authority, but also positions this new body as the main regulator and supervisor of Indonesia's financial sector.
In light of the current financial instability, Bank Indonesia has recently issued three regulations in an effort to make Indonesian exporters deposit their export revenues into banks in Indonesia. They include the requirement that stipulates that all foreign exchange export proceeds be received and deposited by the exporter in a foreign exchange bank.
The new Currency Law is likely to have a major impact on Indonesia's payment systems and in the fields of trade and finance due to its requirements regarding the use of rupiah for payments. Its controversial prohibition of foreign currency for domestic payments appears to catch Indonesian subsidiaries and branches of foreign companies, including foreign-owned companies and bank branches.
Bank Indonesia has issued the Regulation on Asset Quality Assessment for Commercial Sharia Banks and Sharia Business Units. It requires Sharia-compliant banks and Sharia business units to assess and supervise their own asset activities and to be proactive in ensuring the liquidity of their productive and non-productive assets.
The head of the Indonesian Financial Transactions Report and Analysis Centre has issued a new regulation on the procedure for the submission of reports on suspicious financial transactions. Among other things, the regulation is intended to prevent and eventually abolish money laundering, and to improve the reporting system used by financial providers.
Bank Indonesia's Regulation on Monetary Operations is in effect. Among other things, the regulation stipulates the mechanics and instruments that the bank uses in its open market operations, including the purchase and sale of securities and foreign currencies. A key provision regulates the administration and trading of Bank Indonesia certificates.
Bank Indonesia recently issued a number of regulations as part of a new monetary policy package, including the Regulation on Commercial Banks' Obligation to Apply the Prudential Principles in their Activities as Agent for Overseas Financial Products. Among other things, the new regulation broadens the scope of what Bank Indonesia considers to be agency activities in foreign financial products.
A new Bank Indonesia circular implements the Regulation on Risk Management Application for Commercial Banks, which seeks to address the ever-growing risks arising from the increased complexity of banking products and services. In essence, the circular states that all banks must obtain Bank Indonesia's confirmation before issuing a new product or engaging in a new activity.
Bank Indonesia has introduced an intra-day liquidity facility to ensure smoother payments for banks that operate on the basis of Islamic and shariah principles. It is hoped that the facility will help to prevent payment gridlocks in money transfers or securities transfers that could cause wider instability in Indonesia's financial system.
The governor of Bank Indonesia recently issued the Regulation on the Conversion of a Conventional Bank to a Shariah Bank. The main effect of the regulation allows conventional banks to convert to shariah banks and community credit banks to convert to shariah community credit banks, but not vice versa.
In order to address developments in the use of electronic money as a payment instrument, Bank Indonesia has issued two comprehensive regulations on the subject. They apply not only to banking institutions, which are traditionally under the watch of Bank Indonesia, but also to other institutions that act as principals, issuers, acquirers, clearing entities or settlement agencies for payment card business.
In keeping with its statutory duty to stabilize Indonesia's currency, the Bank of Indonesia has taken measures to control speculative rupiah transactions, capping purchases of foreign currency from a bank at $100,000 a month. An individual or legal entity, whether foreign or Indonesian, must demonstrate the economic necessity of a transaction that exceeds the threshold.
The Financial Services Authority recently issued a new regulation which provides a framework to establish the Securities Finance Agency (SFA). The agency aims to boost transaction volumes and liquidity in the Indonesian stock market, particularly by encouraging margin trading and short selling. Upon its establishment, the SFA will provide securities financing to brokerage firms.
Company & Commercial
Government acts to regulate booming e-commerce sector and foreign providers operating in Indonesian marketIndonesia | 13 January 2020
Despite being mandated by Article 66 of the Trade Law, which entered into force in 2014, a government regulation specifically focused on e-commerce has only recently been issued after having been under discussion since 2015. This article describes the key aspects of the regulation that directly affect e-commerce operators and consumers.
After a 10-year delay, a presidential regulation has finally been issued to give effect to key language provisions of the Law on the National Flag, Language, Coat of Arms and Anthem. Of primary interest to businesses are the provisions on contractual language, as they refer to the controversial requirement that agreements involving an Indonesian party must be written in Indonesian and that agreements involving a foreign party must also be written in the national language of the foreign party or in English.
The online single submission (OSS) system constitutes a significant overhaul of Indonesia's business and investment licensing regime. Although much later than scheduled, responsibility for the OSS has now officially transferred to the Investment Coordinating Board. The government made it clear from the outset that the OSS would take time to perfect. Although the OSS works reasonably well for the most part, a number of problems remain.
Government Regulation 24/2018 recently entered into force and established the integrated online single submission (OSS) system, which constitutes a significant overhaul of Indonesia's business licensing regime. The system aims to enable businesses to obtain all necessary central and local government business and operating licences online using the OSS portal. Although these changes have been welcomed, the OSS system remains a work in progress.
The Ministry of Manpower recently issued Regulation 18/2017, which introduces an online-only procedure for mandatory manpower reporting. The regulation specifies when companies must submit an online report and requires them to do so via the ministry website. It also regulates the usage and management of data from manpower reports.
The minister of home affairs recently enacted Regulation 22/2016, amending Regulation 27/2009 on the Guidelines for the Granting of Regional Nuisance Permits. The amendment is part of the president's policy to reduce the number of business permits and licences required to start a business. It introduces important changes to the criteria considered in nuisance permit applications and the types of business that are exempted from the requirement to obtain a permit.
Competition & Antitrust
After fining numerous companies for late notification of mergers, consolidations and acquisitions in recent months, the new commissioners of the Indonesian Competition Commission who took office in May 2018 have once again shown their commitment to a more active enforcement of merger control rules by introducing new merger control guidelines.
New BKPM regulation clarifies guidelines and procedures for licensing and facilities under FDI regimeIndonesia | 11 September 2019
Indonesia's Investment Coordinating Board (BKPM) recently issued a new regulation that amends BKPM Regulation 6/2018, which sets out guidelines and procedures for licensing and facilities under Indonesia's foreign direct investment (FDI) regime. The most significant changes include the reaffirmation that certain FDI companies must comply with divestment obligations and the confirmation that shareholding foreign directors and commissioners are exempt from the normal expatriate employment rules.
The Indonesian Investment Coordinating Board (BKPM) recently issued the Regulation concerning Guidelines and Procedures for Investment Licensing and Facilities. The regulation enables companies investing in a specific business field to apply for a business licence directly without obtaining an investment registration in certain circumstances. Further, it is relatively more lenient than the previous regulation with regard to the divestment obligation imposed on foreign companies.
The Financial Services Authority recently showed its support for the government's tax amnesty programme by issuing a circular letter regarding mandatory tender offers as a result of public company acquisitions. The circular letter exempts any investor that has become the controller of a public company through an acquisition from the obligation to conduct a tender offer and is meant as an incentive for investors that control public companies through nominees to participate in the programme.
The government has finally published the long-awaited new Investment Negative List. The new list sets out the lines of business that are closed to investment, as well as those that are open to investment on certain conditions. The new list replaces the previous list, which was issued in 2007.
The Capital Market and Financial Institutions Supervisory Board has issued a regulation regarding the buyback of shares issued by issuers or public companies. This regulation repealed and replaced previous decisions on the same subject matter. Among the board's considerations for issuing the regulation was the need to implement policies that are in line with provisions on share buybacks of the new Company Law.
Energy & Natural Resources
New regulation establishes penalties for failure to repatriate proceeds of natural resources exportsIndonesia | 05 August 2019
The start of 2019 saw a renewed attempt by the government to compel exporters of natural resources-based commodities to repatriate their export earnings and deposit them in the Indonesian financial system with the issuance of new rules in this regard. The minister of finance has now established penalties for non-compliance with these rules.
Government Regulation 1/2019 requires exporters in the natural resources sector to repatriate their forex-denominated export earnings to Indonesia. Thus, forex-denominated export proceeds in the mining, plantation, forestry and fisheries sectors must be deposited in the Indonesian financial system. Overall, the regulation is clearly intended to bolster Indonesia's balance of payments situation, which has worsened considerably over the past year.
Following the recent issuance of the Ministry of Energy and Mineral Resources decree which imposed price caps on coal supplied for power generation in the public interest, the coal industry was expected to undertake significant lobbying in order to reduce or limit the decree's impact. This anticipated lobbying appears to have commenced already, as the decree was amended on March 12 2018 after having been on the statute books for just four days.
The government recently imposed caps on the prices payable for coal to be used for power generation in the public interest. The maximum price payable under the new Ministry of Energy and Mineral Resources decree is 30% less than the Indonesian benchmark price for equivalent coal sold for export in February 2018, which means that the country's coal producers will suffer a substantial cut to their profitability by selling coal for domestic power generation.
The Ministry of Energy and Mineral Resources recently announced the revocation of 32 regulations in furtherance of the government's efforts to reduce the regulatory burden on the energy and mineral resources sector. However, it was unclear which of these regulations had been revoked before the announcement and which would be revoked in the future. This situation has now been clarified with the issuance of four new revoking regulations, which form part of what some have called a 'big-bang' reform.
The Ministry of Energy and Mineral Resources recently announced the revocation of 32 regulations in the energy and mineral resources sector, three of which are of particular importance to independent power producers in the new and renewable power sub-sector. However, a subsequent examination revealed that most if not all of the regulations have yet to be revoked, and the lack of clarity in this regard has called the ministry's commitment to transparency into question.
Permit to establish foreign representative office in oil and gas sub-sector can now be obtained onlineIndonesia | 05 February 2018
The Indonesian Investment Coordinating Board recently issued the Regulation concerning Guidelines and Procedures for Investment Licensing and Facilities. As regards the oil and gas sub-sector, the regulation states that a permanent business entity may apply for a permit to establish a foreign representative office in the oil and gas sub-sector through the Electronic Investment Information and Licensing Services. Foreign representative office permits are valid for three years and are extendable.
The government and the House of Representatives recently agreed to prioritise the Bill on Palm Oil's enactment in 2017. This is despite the fact that the bill has been subject to criticism, particularly from environmental activists, who argue that there is no urgency for its enactment as most of the provisions are already contained in the Plantation Law. Regardless of the controversy surrounding its enactment, the bill contains a number of key provisions.
To promote a more conducive investment climate, the Ministry of Energy and Natural Resources recently simplified and streamlined the procedures for the application of upstream and downstream oil and gas-related licences through the Regulation concerning Licences in the Field of Oil and Gas. The new regulation has introduced some welcome changes – namely, licence applications can now be made online and most licences can now be issued within 10 to 15 calendar days.
The minister of energy and mineral resources recently enacted Regulation 48/2017 on the supervision of business activities in the energy and mineral resources sector, which revoked the short-lived Regulation 42/2017 on the same subject. In a press release, the minister explained that the regulation's aim is to accommodate the interests of investors and prevent any hindrance to investment.
Despite the primary role that coal and gas continue to play in meeting Indonesia's electricity needs, the government seems to be demonstrating a commitment to promoting renewable energies. New regulations have provided clarity for investors interested in solar, wind, hydro, geothermal and biogas projects by introducing incentives for undertaking such projects, detailing the procedures for renewable power purchase agreements and updating the tariff rates.
A recently promulgated regulation has triggered a major shift in Indonesia's mineral and coal mining industries. Mineral mining companies that depend heavily on mineral exports will be particularly affected by the new policies. Primary changes require all companies operating under a contract of work to transfer to a single licensing regime and introduce stringent mineral export processing standards.
The minister of energy and mineral resources recently issued the Regulation on the Procedure for the Issuance of Recommendation for Export Sales of Processed and Purified Minerals. The regulation – which has simplified the mineral export procedure – covers mineral export sales, the recommendation procedure, domestic refining facility construction plans and the issuance of performance bonds.
The government recently promulgated Presidential Regulation 4/2016 on Acceleration of Electricity Infrastructure Development as part of its commitment to ensuring the success of the 35,000 megawatt programme. The regulation shows the government's support for the prioritisation of new and renewable energy for the implementation of the development and provision of easy licence and permit processes.
To accelerate power plant development by the state electricity company (PLN), the minister of energy and mineral resources has issued a regulation that allows PLN to purchase electricity from independent producers through direct election and direct appointment, provided that certain criteria are met. The regulation also provides benchmark prices for the purchase of electricity.
Regulation 4/2015, which applies to the export of numerous products from natural resources, recently entered into force. The regulation requires Indonesian exporters of these products to obtain a letter of credit from their product buyer for an amount equal to the value of the products sold before their export.
The House of Representatives has passed new legislation concerning geothermal energy. The new Geothermal Resources Act is a revised version of the 2003 Geothermal Energy Act, with major changes that are meant to ease development of the country's geothermal energy industry.
The minister of energy and mineral resources recently issued a regulation intended to promote greater use of solar energy for electricity generation. The regulation stipulates that Perusahaan Listrik Negara – the state-owned electricity company – will purchase the electricity produced by the solar power plant of the business entity that wins a capacity quota tender.
The minister of energy and mineral resources has issued Regulation 11/2012, which amends the obligation to refine minerals imposed under Regulation 7/2012 on Increasing Minerals' Added Value Through Mineral Processing and Refining Activities. This new regulation relaxes the previous ban on miners exporting raw materials, ore and rocks.
In an effort to curb raw mineral exports, the minister of trade has issued the Regulation on Provisions of Mining Products Export. The mining products subject to the regulation comprise 65 metal minerals, non-metal minerals and rocks. Under the regulation, these regulated products may be sourced only from parties that hold a mining permit and their export may be conducted only by exporters that are licensed as a registered exporter.
The president has finally signed the long-awaited implementing regulation for Article 74(4) of Law on Limited Liability Companies. The regulation answers the controversial question of whether corporate social responsibility is voluntary or obligatory for companies, and has particular relevance for natural resources companies and those in related industries.
Government Regulation 42/2012 on Cross-Border Power Sale and Purchase was recently signed by the president. The regulation stipulates that cross-border electricity sale and purchase are subject to the prevailing customs laws and regulations, and must adhere to certain requirements.
The government has issued a new regulation to implement certain provisions of the Electricity Law. It covers a range of issues, including licensing and certification, land use for electrical power supply activities and the determination of sales prices, network leases and tariffs.
The Regulation on Mining Business Activities created divestment obligations for foreign shareholders of a company with a mining licence or a special mining licence. A new amendment requires a further divestment of up to 51% to an Indonesian party no later than 10 years after the start of commercial production. A number of other changes may also affect investors in the extractive industries.
Under Article 71 of the Regulation on Forest Land Use and Development of Forest Management Planning and Forest Utilisation, forest utilisation permit holders must submit a perimeter establishment plan for their work area within one year of the permit issue date. The minister of forestry has issued a regulation on boundary arrangements of working areas for forest utilisation licences.
The minister of forestry has issued new implementation regulations regarding forest land reclamation. Forest licence holders are required to prepare a five-year reclamation plan. Each plan must specify, among others things, schedule, budget, the reclamation activities and an annual reclamation plan map.
The government has taken steps to address Indonesia's declining oil production by providing fiscal incentives to oil and gas operators. It will waive value-added tax on goods imported for the purposes of upstream oil and gas activities or geothermal exploration for the budgetary year 2011.
Indonesia's director general of oil and gas has issued a decree to implement the Regulation on Oil and Gas Supporting Business Activities. It regulates the procedure whereby the Directorate General issues registration certificates to entities or individuals in the oil and gas business, and the application procedure for additional business field classification.
Together with the respective governors, regents and mayors, the minister of energy and mineral resources is tasked with fostering and supervising the activities of mining licensees. As a new regulation makes clear, the scope of the fostering and supervision obligation is broad, including technical and marketing aspects of mining operations, finance, environmental impact and operational safety.
Indonesia's declining oil and gas production has resulted in the country becoming a net oil importer. The minister of energy and mineral resources recently issued a regulation that, among other things, requires contractors to expedite submission of proposals for the development of newly discovered reserve fields and to implement plans to develop or reactivate oil fields with good production potential.
The Supreme Court has issued a new regulation on e-litigation which significantly expands the scope of earlier regulations and envisages the eventual development of a full-blown electronic court system, which would mean that proceedings could be commenced, court fees paid, documents and pleadings submitted, hearings conducted and judgments pronounced electronically.
White Collar Crime
Anti-corruption update: some encouragement for whistleblowers and first-ever prosecution of corporationIndonesia | 24 December 2018
A number of anti-corruption developments took place in Indonesia in 2018. For example, the Government Regulation on Public Participation in the Prevention and Suppression of Corruption was issued in order to incentivise more whistleblowers to come forward and encourage public participation in the fight against corruption. Further, the Corruption Eradication Commission brought its first-ever prosecution against a corporation.