INDONESIA IN DEPTH: 2019 INDUSTRY OUTLOOK - HFW

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INDONESIA IN DEPTH: 2019 INDUSTRY OUTLOOK - HFW
INDONESIA IN
DEPTH: 2019
INDUSTRY
OUTLOOK
INDONESIA IN DEPTH: 2019 INDUSTRY OUTLOOK - HFW
Contents
Paving the way: The impact of
Indonesia’s Construction Law               01

Lost in translation: The use of Bahasa
Indonesia and foreign languages
in Indonesian contracts                    05

Diving deep: An analysis of key
developments and imminent changes
in Indonesia’s shipping sector             07

International arbitration in Indonesia:
Common challenges                          11

Eighteen months on: Indonesia’s
ratification of the Montréal
Convention 1999                            14

Generating progress: Updated regulation
aims to encourage consumer use of solar
energy for electricity generation          16

New IDERAs: Recent regulatory changes
affecting the aviation finance industry    18

Don’t keep your head in the sand(box):
Advice for fintechs on OJK’s new digital
financial innovation regulation            19

Our Indonesia specialists across
our global network                         22
INDONESIA IN DEPTH: 2019 INDUSTRY OUTLOOK - HFW
INDONESIA IN DEPTH: 2019 INDUSTRY OUTLOOK - HFW
Welcome to the first of our Indonesia   On 3 November 2017, HFW formed
in depth publications, a series of      an association with local law firm
articles focussing on a range of        Rahayu & Partners in Jakarta,
current issues and emerging trends      demonstrating our commitment
in Indonesia during 2019 across         to expanding our capability and
many of the country’s                   geographical reach within Indonesia
major industries.                       to offer clients enhanced ‘on the
                                        ground’ support.                      HAYDN
From construction to cabotage                                                 DARE
and innovation to international         Through this association we offer     Senior International Counsel,
arbitration, these articles, authored   clients a comprehensive range         Rahayu & Partners in
by Partners and Associates across       of corporate, finance, and            Association with HFW
our Jakarta and Singapore offices,      transactional services across         T +6221 5080 4404
illustrate the exciting future – and    HFW’s key industry sectors.           E haydn.dare@hfw.com
challenges along the way! – for
companies doing business
in Indonesia.

About Rahayu & Partners in
association with HFW

HFW has been working with a range
of local, regional and international
businesses in Indonesia for more        SRI                                   ALISTAIR
than 25 years, across all of our core   RAHAYU                                DUFFIELD
sectors. We have built an extensive     Partner, Rahayu & Partners            Partner, HFW
in-depth local knowledge, which we      in Association with HFW               T +6221 5080 4404
combine with the full services of a     T +6221 5080 4401                     E alistair.duffield@hfw.com
global law firm.                        E sri.rahayu@hfw.com
INDONESIA IN DEPTH: 2019 INDUSTRY OUTLOOK - HFW
Paving the way: The impact of Indonesia’s                                                   In particular, the Construction Law
                                                                                            prohibits foreign entities from
Construction Law                                                                            participating in the construction
                                                                                            sector unless they have:
Indonesia’s issuance of Construction              ●●   Internationally, Indonesia is        ●●   Either: Established representative
Services Law No. 2 of 2017                             anticipated to be one of the              offices in Indonesia to work in
(Construction Law) was the country’s                   biggest beneficiaries of China’s          cooperation with a national
first major construction-related                       Belt and Road Initiative (BRI); in        construction company, which
legal development in 17 years,                         April 2018, the President returned        can only implement the high
revoking 1999’s Law No. 18 regarding                   from Beijing with US$23.3 billion         risk, high technology and/or high
Construction Services.                                 of cooperation contracts².                cost of the construction services
                                                                                                 market segments.
With 12 January 2019 marking                      What challenges does the
the Construction Law’s second                     Construction Law present                  ●●   Or: Incorporated an Indonesian
anniversary, we explore how – and to              for international construction                 legal entity in a joint venture with
what extent – this landmark piece of              companies?                                     an Indonesian company.
legislation has affected construction
companies working in Indonesia.                   Foreign construction companies            2. Employment of Indonesian
                                                  working or looking to work in                 workers
What has changed in Indonesian                    Indonesia should be alive to at
construction since 2017?                          least three key ramifications of the      While foreign nationals are
                                                  Construction Law:                         permitted to work in Indonesia, the
Domestic and international factors                                                          Construction Law legislates so that
have each influenced the construction             1. E
                                                      stablishment of operations           the majority of jobs are given to
industry in Indonesia – and will very                in Indonesia                           Indonesian nationals including the
likely continue to do so in the coming                                                      head of the representative office.
years. Namely:                                    Indonesia’s success in attracting
                                                  investment for infrastructure             Whilst encouraging local
●●    Domestically, President Joko                improvement must be balanced              recruitment will increase the talent
      Widodo tripled infrastructure               against legislative requirements.         available in Indonesia, there is
      project funding in 2015¹, creating                                                    currently a chronic shortage of local
      momentum that has fuelled                                                             construction workers. The result
      Indonesian construction’s                                                             is that construction companies
      growth since 2017.                                                                    have on occasion struggled to
                                                                                            find resources while maintaining
                                                                                            compliance with the new law.

1. https://www.indonesia-investments.com/id/news/todays-headlines/infrastructure-
     development-indonesia-more-investment-licenses-issued/item5762?
2. https://www.legalbusinessonline.com/features/belt-road-indonesia/76222

                                                                                                      Indonesia in depth: 2019 industry outlook 1
INDONESIA IN DEPTH: 2019 INDUSTRY OUTLOOK - HFW
3. L anguage of construction                 The Construction Law has forced a      Project owners’ appointment of
   contracts                                  departure from this tendency and       construction companies
                                              towards closer scrutiny and greater
The Construction Law requires all             importance on the Indonesian           The Construction Law also relaxed
construction contracts to be written          language version of a contract.        the rules regarding construction
in Bahasa Indonesia.                                                                 companies’ appointment by
                                              What changes has the Construction      project owners.
If a contract is written in another           Law directly brought about?
language as well as Bahasa                                                           The previous law required all
Indonesia, the Indonesian                     Safety                                 contractors to be appointed through
language version prevails, should                                                    a public or limited tender.
a discrepancy arise.                          The Construction Law sought to
                                              improve security and safety on         Under the new Construction Law,
Foreigners have been accustomed               construction sites, introducing        privately funded projects do not
to writing contracts in Bahasa                new standards that cover usage         need to be publicly tendered before
Indonesia, particularly following a           of materials and equipment,            a contractor is appointed. Dozens
2013 decision by the West Jakarta             site security and safety, and          of project owners on privately
District Court that contracts written         environmental protection.              funded projects have benefited
only in English were void.                                                           from this change.
                                              This has provoked meaningful
In practice, however, legislating that        debate on the important issue of       On the other hand, the previous
the Indonesian version will prevail           construction sector employees’         tender requirements have continued
over the foreign language version             working conditions in the country;     to apply to publicly funded projects
was not consistent with the way in            something that health and safety       and construction projects for
which the majority of foreign parties         professionals have been carefully      public services by using electronic
drafted contracts, prior to 2017.             monitoring.                            procurement, direct appointment
                                                                                     and direct procurement in
Foreign parties tended to negotiate           We anticipate that the issue of        accordance with prevailing
contracts in English, including an            workers’ safety will move higher up    regulations. The Construction Law
Indonesian translation later. The             the political and legislative agenda   empowered regional governments
Indonesian version was not always             in the coming years.                   to issue special policies where a
checked for consistency and so                                                       construction project was funded
parties relied on a clause giving             Changes in the industry at a global
                                                                                     using the regional budget, which
the English version priority.                 level will likely exert pressure on
                                                                                     fulfill the criteria of small to
                                              all countries to demonstrate a
                                                                                     medium risk, simple technology
                                              tangible commitment to
                                                                                     to intermediate technology, and
                                              effecting positive change.
                                                                                     low to moderate cost.

2 Indonesia in depth: 2019 industry outlook
INDONESIA IN DEPTH: 2019 INDUSTRY OUTLOOK - HFW
This included permitting regional                    conciliation dispute resolution                       We can expect changes but, given
governments to have joint operation                  methods.                                              that the Construction Law took 17
with regional construction services                                                                        years to implement, progress is
companies and/or the regional                        Such boards are intended to assist                    unlikely to be imminent.
subcontractors to provide                            in resolving disputes that arise on
specific services.                                   construction projects.                                In the meantime, foreign investors
                                                                                                           should pay close attention to the
Greater administrative burden                        The usage of dispute boards in                        provisions of the Construction Law
                                                     construction contracts is becoming                    and other relevant Indonesian
The Construction Law continues the                   increasingly common throughout                        legislation.³
previous requirement for all foreign                 the world, spearheaded by
construction businesses to possess                   the Federation of International
licenses and certificates issued by                  Consulting Engineers (FIDIC).                         For more information, please contact
the Ministry of Public Works and                                                                           the author of this article:
Public Housing (the Ministry).                       FIDIC’s standard form contracts
                                                     generally require the establishment                   BEN
                                                                                                           BURY
However, since the implementation                    of dispute boards during the early
of Government Regulation No.                         stages of a project.
24 of 2018 concerning Online
Integrated Business Licensing                        However, Indonesia is one of
Services, the application process of                 the few countries that intends
the business permit for construction                 to legislate in favour of it.
service is made through an Online
                                                     Key takeaways
Single Submission (OSS), the new
established centralised business                     Indonesia’s construction sector                       GUSNANDI
licensing system.                                    is facing an exciting and                             HALIADI
                                                     challenging future.
Further anticipated change:
Dispute boards                                       Greater investment, including from
                                                     foreign companies, in
One anticipated change, provided
                                                     much-needed infrastructure,
for in the Construction Law
                                                     sits against a backdrop of strict
but not yet implemented, is
                                                     legislation that prioritises Indonesian
subsidiary legislation concerning
                                                     interests over those of foreign
the dispute resolution, as well
                                                     investors, and is compounded by a
as the establishment of dispute
                                                     shortage of construction workers
boards other than mediation and

3. T
    hese include but are not limited to: Indonesia Civil Code, Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution, Presidential Regulation
  No. 16 of 2018 on Government Procurement of Goods or Services, which includes provisions relating to the procurement of construction work for
  international tender, and Bank Indonesia Circular Letter No. 23/7/UKU Tahun 1991, setting out the requirements of a Bank Guarantee, which applies to
  Contractor Bonds.
                                                                                                                      Indonesia in depth: 2019 industry outlook 3
INDONESIA IN DEPTH: 2019 INDUSTRY OUTLOOK - HFW
4 Indonesia in depth: 2019 industry outlook
INDONESIA IN DEPTH: 2019 INDUSTRY OUTLOOK - HFW
Lost in translation: The use of Bahasa                                                           Strict implementation: Industry
                                                                                                 case studies
Indonesia and foreign languages in                                                               We have been observing
Indonesian contracts                                                                             developments regarding the
                                                                                                 implementation of the Language
When the Indonesian government                     Landmark case: Nine AM v PT                   Requirement. Domestically, President
enacted Law No. 24 of 2009 on the                  Bangun Karya Pratama Lestari                  Joko Widodo tripled infrastructure
National Flag, Language, Symbol and                                                              project funding in 20153, who is well
Anthem (Law 24), controversy ensued.               Despite MOLHR’s response, in 2013,            known for his support of
                                                   the District Court of West Jakarta            pro-nationalist policies.
This was due to Law 24 requiring                   nullified an agreement entered into by
the Indonesian language to be                      Nine AM Ltd. (Nine AM) as creditor and        Upstream oil and gas
used in agreements, contracts                      PT Bangun Karya Pratama Lestari as
and memoranda that involve                         borrower in respect of US$4.42 million        The upstream oil and gas sector
Indonesian governmental institutions,              worth of facilities, on the basis that        typically uses the Indonesian
private entities or citizens1.                     the agreement was not entered into            language in contracts.
(Language Requirement).                            in the Indonesian language.2
                                                                                                 Upstream oil and gas concession
In the decade since, how strictly                  The case was then brought to the              contracts and service contracts
has the Language Requirement                       Supreme Court at cassation level.             are drafted in both the Indonesian
been implemented, and what                         The Supreme Court was of the                  and English languages;therefore,
are the key issues to be aware of                  opinion that, in terms of the regulatory      they are in line with the
regarding parties’ choice of language              hierarchy, the law ranks higher than          Language Requirement.
in contracts?                                      presidential regulations.
                                                                                                 Further strict implementation of the
The Minister of Law and Human                      As such, presidential regulations,            Language Requirement is reflected in
Rights’ view                                       including MOLHR’s response to the             the Tender Guideline No. EDR-0167/
                                                   Jakarta advocates, cannot override            SKKMH0000/2017/S7, dated 26 July
Immediately after the enactment                    the provisions and obligations                2017 (PTK 0167), issued by the Special
of Law 24, Indonesia’s then                        stipulated under Law 24.                      Task Force of Upstream Oil and Gas
Minister of Law and Human Rights                                                                 Business Activities, the supervising
(MOLHR) responded to a request                     The Supreme Court therefore rejected          authority of the upstream oil and gas
by several advocates in Jakarta for                the cassation request filed                   sector (locally known as SKK Migas).
clarification on the implications                  by Nine AM.
and implementation of the                                                                        PTK 0167 expressly requires that
Language Requirement.                              This case, owing to its controversy,          tender documents submitted by
                                                   became a landmark case referred to            tender participants must be in
MOLHR’s response clarified that the                by legal practitioners when complying         either the Indonesian language
absence of an Indonesian language                  with the Language Requirement.                alone or both the English and
version of the contracts would neither                                                           Indonesian languages.
invalidate contracts nor breach the
Language Requirement.

1. Clause 31 (1) of Law 24.
2. Nine AM Ltd. v PT Bangun Karya Pratama Lestari (2015).
3. https://www.indonesia-investments.com/id/news/todays-headlines/infrastructure-development-indonesia-more-investment-licenses-issued/item5762?

                                                                                                           Indonesia in depth: 2019 industry outlook 5
INDONESIA IN DEPTH: 2019 INDUSTRY OUTLOOK - HFW
“It is imperative that parties check
that they will not be in breach of
any relevant regulations before
opting for a foreign language
(such as English) to be a
contract’s prevailing language.”

It also provides that, in the event           Therefore, it is imperative that parties   For more information, please contact
of any perceived conflicts when               check that they will not be in breach      the authors of this article:
interpreting the Indonesian language          of any relevant regulations before
and English language provisions, the          opting for a foreign language to be a      EVIATY
                                                                                         JENIE
Indonesian language                           contract’s prevailing language.
provisions prevail. 3
                                              To avoid challenges by contractual
Construction                                  counterparties, we recommend
                                              adopting a conservative approach,
The construction sector also                  particularly with high-value contracts.
strictly implements the Language
Requirement regarding construction            Given the above mentioned exposure
contracts according to the recently           to non-compliance with Law 24, we
enacted Construction Law No.                  recommend that parties prepare the         TASHIA
                                                                                         NOVIASI
2 of 2017.                                    Indonesian language version of the
                                              contract in sufficient time to execute
Ben Bury and Gusnandi Haliadi’s               the Indonesian and English versions of
article in this publication provides an       the contract concurrently.
in-depth exploration.
                                              How can HFW help?
Key takeaways
                                              We can advise on the further
The above industry case studies               implications of Law 24 and assist with
clearly differ from the way in which                                                     Research conducted by Stephanie
                                              drafting and translating the full range
Law 24 (which is silent on the                                                           Koh, Trainee Solicitor.
                                              of commercial contracts, whether in
question of a prevailing language) is         the Indonesian or English language.
generally interpreted – i.e., parties to
the agreements are free to make the           Our team is also composed of
foreign language of the contract the          Indonesian-qualified lawyers, who can
prevailing language, in the event that        assist ininterpreting contracts drafted
there are conflicts in interpretation.        in the Indonesian language.

Our observation suggests that foreign
parties’ awareness and acceptance
of the Language Requirement
has increased.

3. PTK 0167, Chapter II, 2.2.

6 Indonesia in depth: 2019 industry outlook
The Shipping Law applies a “closed”
Diving deep: An analysis of key                                                                      ship registry in Indonesia, meaning
developments and imminent changes                                                                    that Indonesian-flagged vessels can
                                                                                                     only be owned by and registered to
in Indonesia’s shipping sector                                                                       Indonesian individuals or legal entities.

Cabotage rules                                    They aim to increase and                           This includes Indonesian companies
                                                  promote Indonesian shipping and                    with foreign shareholders; these
Indonesia’s implementation of the                 shipbuilding interests, by restricting             are commonly referred to as a PMA
cabotage principles has been a key                certain activities of foreign vessels              companies (Perseroan Terbatas
factor in the fast pace of the growth             operating within Indonesian waters.                Penanaman Modal Asing, limited
of Indonesia’s shipping industry.                 The principals introduced under                    liability companies established under
                                                  the Shipping Law have since been                   Indonesian laws.). PMA companies
A brief history of cabotage
                                                  periodically supplemented by                       are the only permitted form of inward
in Indonesia
                                                  various regulations.                               Foreign Direct Investment (FDI) in
Indonesia’s cabotage rules were                                                                      Indonesian shipping by foreigners.
                                                  A number of exemptions to the
introduced via Law No. 17 of 2008 on
                                                  restrictions have allowed the                      Foreign ownership restrictions
Shipping (Shipping Law). Under this
                                                  operation of foreign flagged vessels,
law and its implementing regulations,                                                                There is also a restriction on the
                                                  in order to support certain activities in
only Indonesian flagged vessels are                                                                  level of capital ownership in an
                                                  particular sectors.
allowed to carry passengers and                                                                      Indonesian shipping company by
goods between ports located in                    For example, the oil and gas sector                foreign investors.
Indonesian territorial waters (subject            has a requirement for specialised
to certain exemptions discussed                   vessels that are not generally available           Presidential Regulation No. 44 of 2016
later in this article).1                          within Indonesia. Exemptions have                  (Negative Investment List)2 stipulated
                                                  been introduced to enable the                      that an Indonesian shipping company
The cabotage principles broadly                                                                      may only have up to 49% of its shares
                                                  operation of specialised vessels in the
require that domestic sea trade is                                                                   owned by a foreign individuals or
                                                  oil and gas sector and to support the
carried out by an Indonesian shipping                                                                companies and must own at least one
                                                  government’s planned infrastructure
entity, flagged in Indonesia and                                                                     Indonesian flagged vessel with a gross
                                                  development projects, especially
manned by an Indonesian crew.                                                                        tonnage of at least 5000 tonnes, if it
                                                  with regards to construction and
                                                  power plants.                                      has any foreign shareholders.

1. See our recent article http://www.hfw.com/Murky-waters-Six-key-maritime-issues-to-understand-before-doing business-in-Indonesia-
   Sep-2018 accessed 2 January 2019.
2. See our previous article on the topic: http://www.hfw.com/The-New-Indonesia-Investment-Negative-List accessed 2 January 2019.

                                                                                                               Indonesia in depth: 2019 industry outlook 7
However, the government recently announced the 16th Economic Policy Package, which includes a revision to the
Negative Investment List, opening up permitted foreign capital ownership to 100% in 25 business categories:

 Category                                                                    Previous limit on foreign ownership

 Oil and gas construction services                                           49% for offshore pipeline installation

 Offshore oil and gas drilling services                                      75%

 Geothermal drilling services                                                95%

The Government has also decided                    shares in an Indonesian company                      This regulation will further complicate
to open up international freight                   are held for and in the name of                      the creation of workable foreign
sea transport (excluding cabotage)                 another person.                                      shareholding arrangements
(CPC 7211) business activities to                                                                       in Indonesia.
100% foreign investment. This sector               The Investment Law further
was previously limited to foreign                  provides that any kind of nominee                    New Minister of Transportation
investment by ASEAN countries                      arrangements in an Indonesian                        regulation: Updates on the
investors with maximum                             company are void by law.                             exemption for the use of certain
ownership of 70%.                                                                                       foreign flagged vessels
                                                   The government also recently issued
While the 49% cap on the ownership                 Presidential Regulation No. 13 of                    In 2011, the Indonesian Ministry
of Indonesian shipping companies                   2018 on the Implementation of the                    of Transportation (MOTP) issued a
remains, these changes give                        Principle on Recognising Beneficial                  regulation permitting the use of
foreign investors greater scope                    Ownership of Corporations in the                     certain types of foreign flagged
when structuring investments in                    Framework of the Prevention and                      vessels for certain activities, other
these sectors.                                     Eradication of Money Laundering and                  than the transportation of passengers
                                                   Criminal Acts of Terrorism Financing                 and/or goods. 3 Such permitted
The Government is currently in the                 (PR 13/2018).                                        activities included offshore drilling,
process of issuing a new regulation                                                                     construction, surveys, dredging,
on the Negative Investment List.                   This regulation obliges Indonesian                   salvage and underwater work4.
Following its issuance, we will provide            business entities and non-business
a further update.                                  organisations to disclose and declare                The government has since issued
                                                   their ultimate beneficial owners                     MOTP Regulation PM 92 of 2018,
Nominee arrangements,                              and to provide information on their                  which provides a further extension on
prohibition in the Investment Law                  beneficial ownership.                                the exemptions on the use of foreign
and the requirement to report the                                                                       flagged vessels until 31 December
ultimate beneficial owner                          While the stated primary purpose of                  2020 (PM 92/2018). It also makes a
                                                   PR 13/2018 is to tackle the misuse of                wider range of vessel types exempt.
There have been instances where                    a business entities or organisations
foreign investors have used various                for illicit purposes, such as terrorism              In order to secure a permit to use
forms of nominee arrangements to                   financing, money laundering, tax                     foreign flagged vessels for offshore
circumvent the Negative Investment                 evasion and corruption, it’s disclosure              activities, the Indonesian shipping
List restrictions.                                 requirements will provide more                       company must submit an application
                                                   transparency in the ownership of                     to the MOTP5.
Foreign investors should be aware that             business entities and enable the
Law No. 25 of 2007 on Investment                   relevant government agencies                         Before submitting the application,
(Investment Law) clearly prohibits                 to monitor the ownership of                          the applicant is required to conduct
domestic and foreign investors alike               business entities.                                   at least one procurement process
from entering into agreements and/                                                                      to ascertain the availability of an
or making statements asserting that                                                                     Indonesian flagged vessel of the same
                                                                                                        type and specification.

3. M
    OTP Regulation PM 14 of 2011 on Procedures and Requirements to Grant Permits to Use Foreign Vessels for Domestic Sea
   Transportation for Activities Other Than the Transportation of Passengers and/or Goods.
4. T
    his regulation was then replaced by MOTP Regulation No. 100 of 2016, which was, in turn, amended by the MOT Regulation No. 115
   of 2017 (PM 100/2016). PM 100/2016 permitted the use of certain foreign flagged vessels in Indonesia up to 31 December 2018.

8 Indonesia in depth: 2019 industry outlook
Permitted vessel types and activities in Indonesian waters by foreign flagged vessels now include:

Activities                                                   Vessel types

Offshore drilling                                            ●   Jack up rigjack up barge/self elevating drilling unit (SEDU).
                                                             ●   Semi-submersible rig.
                                                             ●   Deep water drill ship.
                                                             ●   Tender assist rig.

Offshore construction                                        ●   Derrick/crane, pipe/cable laying/barge/vessel/sub sea umbilical riser
                                                                 flexible (surf) with dynamic position (at least DP1).
                                                             ●   Anchor handling tug supply vessel (at least 10,000 BHP).
                                                             ●   Pilling barge with crane capacity at least 150 tonnes safety
                                                                 working load (SWL).
                                                             ●   Diving support vessel (DSV) with dynamic position (DP2/DP3).
                                                             ●   Semi submersible accommodation barge.

Oil and gas survey                                           ●   Seismic survey with electromagnetic/broadband triple source.
                                                             ●   Geophysical survey.
                                                             ●   Geotechnical survey.

Dredging                                                     ●   Cutter suction dredger (csd) with cutter head of at least 30 inches.
                                                             ●   Trailing suction hopper dredger (TSHD) with the capacity of a hopper
                                                                 of at least 3,700 M3.
                                                             ●   Multicat with crane with a capacity at least 100 tonnes.

Salvage and underwater works                                 ●   Floating crate with capacity of at least 300 tonnes.
                                                             ●   Survey salvage/cable ship/barge with dynamic position of at least DP1.
                                                             ●   Diving support vessel with dynamic position of at least DP2.

Offshore supporting operations                               ●   Liquid natural gas (LNG) storage.
                                                             ●   Floating storage offloading/floating production storage unit.

Floating power plants                                        ●   Any type of floating power vessel.

Wharf constructions                                          ●   Concrete deep mixing (CDM) barge.
                                                             ●   Concrete pipe mixing (CPM) pneumatic pumping barge.
                                                             ●   Concrete pipe mixing (CPM) cement placing barge.
                                                             ●   Concrete pipe mixing (CPM) anchor boat.

                                                                                                     Indonesia in depth: 2019 industry outlook 9
PMA 92/2018 requires the                           This regulation left a number of                   numerous positive opportunities to
procurement to be conducted                        points unclear, including:                         invest in the Indonesian shipping
through national electronic or                                                                        sector, particularly in view of the
printed media at least three months                1. W
                                                       hether the term “controlled”                  government’s new economic policy to
before the applicant can submit its                    means vessels are required to be               further opening up certain business
application to use foreign flagged                     owned by an Indonesian shipping                fields to foreign investment.
vessels to the MOTP. This is a                         company or if the relevant vessels
significant change from the previous                   could be chartered.                            However, it is important that
regulation, which only required                                                                       foreign investors are guided
                                                   2. W
                                                       hether the vessels used by the                through the entire process of
the procurement to be conducted
                                                      exporters or importers must be                  investment realisation in Indonesia,
up to five days before submitting
                                                      Indonesian flagged vessels or be                from structuring the investment,
the application.
                                                      manned by an Indonesian crew.                   incorporating or purchasing the
The procurement process prioritises                                                                   correct investment vehicles in
                                                   MOT 82/2017 provides an exemption
Indonesian flagged vessels. If an                                                                     Indonesia and other jurisdictions, and
                                                   to the requirement for the use of
Indonesian flagged vessel is not                                                                      obtaining the necessary mandatory
                                                   vessels controlled by Indonesian
available, then the procurement                                                                       permits to producing the relevant
                                                   shipping companies and the
should prioritise either those foreign                                                                investment documentation, in order
                                                   requirement for insurance to be
vessels that are to be reflagged                                                                      to ensure smooth navigation of
                                                   provided by Indonesian insurance
as Indonesian flagged or foreign                                                                      Indonesia’s specific legislative and
                                                   companies in the event that the
flagged vessels acquired by                                                                           regulatory frameworks.
                                                   necessary vessels controlled by
Indonesian nationals or entities under
                                                   Indonesian shipping companies or                   We can assist you in structuring
leasing schemes.
                                                   insurance provided by Indonesian                   and restructuring your investments
The applicant should notify and                    insurance companies were in limited                in Indonesia, with lawyers
provide evidence to the regulators                 supply or unavailable.                             who have advised on complex
that an attempt has been made to                                                                      Indonesian investment and joint
                                                   Initially, the requirement to use vessels
procure an Indonesian flagged vessel                                                                  venture structures and specialist
                                                   controlled by Indonesian shipping
without success.                                                                                      shipping expertise.
                                                   companies and to use insurance
Under PM 92/2018, the permit to use                provided by Indonesian insurance                   We can also assist you further in a
foreign flagged vessels is granted for             companies was scheduled to come                    detailed understanding of regulatory
6 months and may be extended after                 into effect on 30 April 2018.                      conditions and requirements under
being evaluated by, and subject to the                                                                the Indonesian shipping and related
                                                   There was a great deal of concern
discretion of, the MOTP. This period of                                                               legislation, including PM 92/2018 and
                                                   among industry players that both the
use of foreign flagged vessels has also                                                               MOT 82/2017.
                                                   Indonesian shipping and insurance
been tightened by the MOTP, as the
                                                   sectors did not have the necessary
previous regulation allowed the vessel                                                                For further discussion, please contact
                                                   resources to provide the requisite
to be used for up to one year.                                                                        the author of this article:
                                                   shipping and insurance coverage to
                                                   comply with these obligations.                     HAYDN
New export and import                                                                                 DARE
regulations: Use of Indonesian
                                                   As a consequence, through a series of
shipping and insurance companies
                                                   amendments to the initial regulations,
The Minister of Trade (MOT) issued                 most recently by MOT 80/2018, the
Regulation No. 80 of 2018 (MOT                     government decided to delay the
80/2018) on 30 July 20186.                         implementation of the obligation to
                                                   use vessels controlled by Indonesian
This requires any company using                    shipping companies until 1 May 2020,
sea transportation to export coal or               and to delay the implementation
                                                                                                      INDRA
crude palm oil or to import rice or                of the obligation to use insurance                 PRAWIRA
government-procured goods to:                      provided by Indonesian insurance
                                                   companies until 1 February 2019.
●   Utilise sea transportation that
    is controlled by an Indonesian                 Key takeaways for foreign
    shipping company.                              companies and investors in
                                                   Indonesia
●   Obtain insurance from an
    Indonesian insurance company.                  Despite legal and political challenges
                                                   in Indonesia, many foreign investors
                                                   still consider that there are

5. Along with various supporting documents as set out in PM 92/2018.
6. This was the second amendment to MOT Regulation No. 82 of 2017 on Provisions on the Utilisation of National Sea Transportation and Insurance for
    Export and Import of Certain Goods, which came into effect on 1 August 2018 (MOT 82/2017).

10 Indonesia in depth: 2019 industry outlook
One commentator explains:
International arbitration in Indonesia:
Common challenges                                                                                “Indonesia currently has no specially
                                                                                                 trained judges who can be assigned
Badan Arbitrase Nasional Indonesia                   The Indonesian Arbitration Law of           to handle arbitration related cases.
(BANI) is an important arbitral                      1999 (AL) provides that, in order for       Besides, the court staff assigned
institution, as oil and gas contracts                disputes to be arbitrable:                  to assist in handling arbitral award
involving Indonesian projects almost                                                             registration and enforcement
invariably require BANI as their                     ●●   The dispute must be of a               matters generally show no strong
dispute resolution forum.                                 commercial nature and                  understanding of arbitration.
                                                                                                 Indonesia is also well known for its
For any arbitral institution to gain                 ●●   The parties themselves must            unnecessary court interference in
the confidence of its prospective                         have the authority to resolve          matters related to arbitral awards,
users, parties must feel assured of                       the dispute.                           although the situation is now
its transparency and institutional                                                               gradually improving.”1
                                                     If the parties have a valid arbitration
reliability. Our experience has shown
                                                     agreement, it is a violation of the AL to   Processes and procedures
that the theory and the practice of
                                                     initiate court proceedings to resolve
applicable arbitral procedures in
                                                     a dispute.                                  BANI Rules are less comprehensive
Indonesia do not always reconcile.
                                                                                                 than the institutional rules of more
                                                     If a party initiates court proceedings      established international arbitration
In this article we outline some of the
                                                     in relation to a dispute, which the         bodies. They can be vague and, in
challenges we have encountered
                                                     parties have agreed in writing to refer     parts, even contradict themselves.
in BANI arbitrations, and some of
                                                     to arbitration, judges must declare
the measures we believe could be
                                                     themselves to have no jurisdiction.         Compounding this, many of the BANI
taken in order to improve Indonesia’s
                                                                                                 procedures are overly bureaucratic,
standing as a credible international                 Despite this, the courts have, on           which can hamper efficiency.
arbitration centre.                                  occasion, shown themselves willing to       For example:
                                                     try cases in spite of the existence of a
Court intervention
                                                     valid arbitration agreement.                ●   The parties have to be physically
Under Indonesian law, an agreement                                                                   present for all procedural and
                                                     This causes delay and additional costs.         other hearings, which must be
to arbitrate must be in writing.
                                                     It also becomes very difficult for the          conducted orally. There is no
This is the case in many jurisdictions
                                                     claimant to prevent their consensual            scope for the tribunal to decide
including in many “arbitration-friendly”
                                                     agreement to arbitrate from being               even procedural directions on
ones, such as Singapore and England).
                                                     derailed by an obstructive respondent.          paper or following a telephone
                                                                                                     call with the parties.

1. Tony Budidjaja (Budidjaja International Lawyers) (2017).

                                                                                                         Indonesia in depth: 2019 industry outlook 11
●   Each party has to submit                   from time to time to represent a client    proceedings where the parties have
    all correspondence to BANI.                at a hearing.                              agreed to arbitrate.
    BANI then distributes it to the
    tribunal and other parties, rather         A business visa only entitles holders      Amongst others, some of the
    than the parties and tribunal              to attend meetings; it is not clear        particular challenges we have
    communicating directly with                whether arbitration hearings would         encountered with hostile respondents
    one another.                               fall within that scope.                    in Indonesia include those who have:

●   The final hearing is when the              This issue needs to be addressed           ●   Refused to enclose the
    award is read out. Again, all              urgently by relevant parties, including        documents referred to in their
    parties must be present, requiring         BANI, as it creates uncertainty and            submissions, communicate with
    the tribunal and parties to be             opens the door for obstructive                 us directly, and threatened to
    physically present in Jakarta.             respondents to exclude foreign                 appeal any procedural directions
    In contrast, many other arbitral           lawyers from representing their                given by the tribunal that they do
    institutions circulate their awards        clients in Indonesian arbitrations.            not like to court (despite them
    to the parties by email and post.                                                         being disentitled from doing so).
                                               The impact of this is far-reaching
International counsel                          and it undermines Indonesia’s              ●   Tried to ensure that the
                                               potential as a credible international          arbitration is conducted in
Whilst no arbitration is immune to             arbitration centre.                            Bahasa Indonesian, despite the
obstruction by hostile respondents,                                                           parties’ agreement to conduct
in our experience, the relative lack of        Will the real BANI please                      it in English.
infrastructure to support arbitration          stand up?
in Indonesia makes it a particularly                                                      Such conduct is particularly
fertile terrain for derailment by              In 2016 some members of BANI’s             disappointing given that the AL
obstructive respondents.                       board defected, establishing another       and BANI Rules both expressly
                                               arbitral institution that they named       provide that the parties will conduct
It is a principle of international arbitral    “BANI Pembaharuan”.                        themselves in good faith during the
jurisprudence that anyone may                                                             arbitration process.
represent a party in arbitration, even         We understand that currently BANI
the individual themselves. Unlike in           and BANI Pembaharuan are in                These tactics serve only to deter
court litigation, parties’ representatives     the process of lawsuit in several          parties from choosing to arbitrate in
in arbitrations do not have to be              Indonesian courts to determine on          Indonesia and undermine Indonesia’s
lawyers (although, in practice,                the legitimacy of their entity status.     substantial potential as a dispute
they usually are).                             However, to date, there is still no        resolution centre.
                                               certainty on the outcome. In its
Not unusually, the BANI Rules provide          press release, the newly established       Conclusion
that, where the substantive law of the         institution hailed BANI Pembaharuan
                                                                                          The international arbitration
contract is Indonesian, any counsel            as a “transformed BANI”. The scope for
                                                                                          community welcomes Indonesia’s
has to be either Indonesian-qualified          costly and time-consuming confusion
                                                                                          emergence as a credible arbitral
or, if they are a non-Indonesian               requires no explanation.
                                                                                          jurisdiction and wants to see a
representative, must be accompanied
                                               Whilst this issue is not                   robust institutional and legislative
by Indonesian counsel.
                                               insurmountable, for example by             infrastructure to support
However, uncertainty surrounding               parties ensuring that their arbitration    its development.
Indonesia’s immigration laws can               agreement clearly specifies to which
                                                                                          BANI, as the flagship arbitration body
allow an obstructive respondent to             of the two BANIs they intend to refer
                                                                                          for administered arbitrations, needs
effectively ban parties from being             disputes, it is a further example of
                                                                                          to be better equipped and supported
represented by international counsel           the lack of clarity and reliability that
                                                                                          to withstand the challenges we
– even where they are accompanied              continues to blight the arbitration
                                                                                          have outlined.
by local counsel – by threatening              landscape in Indonesia.
to report them to the immigration                                                         Relevant parties must rally together
authorities and having them detained.          Obstructive respondents
                                                                                          to ensure that the process is impartial,
                                               The lack of institutional coherence        objective and expedient, and that
It is unclear whether a work permit,
                                               can make the arbitral process in           the courts respect the parties’
simply for the purpose of representing
                                               Indonesia all too vulnerable to            agreement to resolve their disputes
a client at arbitration hearings, is
                                               derailment by an unresponsive or           through arbitration.
required by those foreign counsel not
resident and employed in Indonesia.            obstructive respondent.
                                                                                          Interference with the arbitral process
                                               This is compounded by the district         should be restricted to well-defined
However, if a work permit is,
                                               courts’ willingness to intervene in any    and narrow grounds, rights of appeal
indeed, required then parties face a
                                               proceedings referred to them, even         to the courts should be limited, and
conundrum: there is no temporary
                                               though it is a violation of the AL and     practices such as permitting an
work permit available that would
                                               of the BANI Rules to instigate court       unsatisfied party to have a second bite
entitle them to travel to Indonesia
                                                                                          at the proverbial cherry through the

12 Indonesia in depth: 2019 industry outlook
re-litigation of disputes in the courts
should be eradicated.

As was the case with many
jurisdictions that are now widely
considered ‘arbitration-friendly”, if
Indonesia is to realise its potential
as a trusted and credible arbitral
jurisdiction, the courts and legislative
bodies need to become the guardians
of arbitration, rather than the enablers
of obstructive parties.

There are many practitioners, jurists
and academics putting considerable
energy into promoting international
arbitration in Indonesia; their efforts
must be underpinned by institutional
support and infrastructure at
the macro level in order to make
meaningful progress.

For more information on conducting
arbitrations in Indonesia, please
contact the authors of this article:

PAUL
ASTON

DWI
DARUHERDANI

SUZANNE
MEIKLEJOHN

                                           Indonesia in depth: 2019 industry outlook 13
Eighteen months on: Indonesia’s                                                       The outdated nature of the Poincare
                                                                                      Franc meant that its usage often
ratification of the Montréal                                                          led to differing results, depending
                                                                                      on the state in which a claim was
Convention 1999                                                                       presented.

Indonesia ratified the Montreal                Adopting MC99 was a positive step      Modernising the international
Convention 1999 (MC99) on 20                   towards the global unification of      carriage regime in Indonesia through
March 2017. It officially came                 global aviation law and subsequently   use of SDR should, theoretically,
into force on 19 May 2017.                     provided more certainty for            provide greater certainty for carriers;
                                               participants. Before MC99, parties     in particular, regarding the table
The importance of Indonesia’s                  needed to navigate a patchwork of      to the right.
ratification of MC99                           differing liability regimes.
                                                                                      Practical implications:
This brought Indonesia in line                 The global civil aviation community,   Uncertainty still remains
with the, now, more than 130                   therefore, welcomed Indonesia’s
ratifying nations that have ratified           ratification of MC99.                  While there is widespread
MC99, following a global push                                                         agreement that Indonesia’s MC99
by the International Air Transport             The key benefits of MC99               ratification and adoption should
Association (IATA) for its global              to Indonesia: Promoting                have led to more certainty for
ratification and adoption.                     greater certainty                      carriers, it is very noteworthy that, in
                                                                                      the eighteen months since adoption,
Indonesia’s only prior ratification            One of MC99’s primary effects was      the Indonesian courts have yet to
in this space was the Warsaw                   abandoning the Poincaré Franc, in      make any landmark adjudications in
Convention of 1929 (WC29); it had              favour of the more commonly used       this regard.
neither ratified the 1955 Hague                International Monetary
Protocol nor any of the Montreal               Fund standard of Special
Protocols.                                     Drawing Rights (SDR).

14 Indonesia in depth: 2019 industry outlook
Prior WC29 regime                             Change under MC99                              Benefits of MC99

Cargo claims:        If carriers wanted to rely on the limits of   MC99 allows the use of electronic              Allowing e-airway bills will speed up
E-freight
                     liability, they needed a paper airway bill.   documents to record the carriage of            the air freight process, eliminating
                                                                   cargo by air.                                  paper-based processes, which will boost
                                                                                                                  Indonesia's competitiveness in the air
                                                                                                                  freight market.

 Cargo claims:       Limited to 250 Poincaré Francs                Abandonment of Poincaré Franc.                 New compensatory regime - clarity and
 Greater certainty
                     per kilogram of cargo carried                                                                greater certainty.
 with regards to
                                                                   Imposes a 19 SDR (approx. US$26) per
 cargo limits        (breakable limits).
                                                                   kilogram unbreakable liability limit for
                     Much uncertainty re carrier liability for     claims relating to cargo destruction, loss,
                     cargo losses due to variations between        damage or delay.
                     jurisdictions in which claims were
                     brought.

 Passenger           Passenger loss of life claims were            Two tier compensation system: -
 claims
                     limited to 125,000 Poincaré Francs,
                                                                   1. S
                                                                       trict liability up to 113,100 SDRs
                     which effectively limited claims to
                                                                     subject to proof of loss: liable
                     approximately US$20,000 (breakable
                                                                     without exclusion or limitation –
                     limits).
                                                                     but exoneration for contributory
                     This was significantly less than the            negligence is available
                     standard set by the Indonesian
                                                                   2. Unlimited damages (above 113,100
                     Government by way of Regulation 77 (see
                                                                     SDRs) unless the carrier can prove
                     below), which provides for compensation
                                                                     death/injury not due to own
                     of more than than IDR1 billion
                                                                     negligence or solely due to negligence
                     (approximately. US$70,000).
                                                                     of third party.

In terms of the interplay with                        It is therefore conceivable that                        To discuss further, please contact the
Indonesian domestic aviation                          if an aviation accident occurs in                       authors of this article:
regulations, it is unclear if MC99                    the airspace above the territory of
will be regarded as the sole basis                    Indonesia arising from international                    MERT
                                                                                                              HIFZI
for air carrier liability for passenger               carriage it could potentially be
injury or death arising from                          regulated by both domestic
international carriage.                               Indonesian law as well as MC99.

In this context, it should be noted                   In which case, it remains to be seen
that Indonesian domestic aviation                     as to how the Indonesian courts will
legislation/regulations, including but                resolve any conflicts of law post-
not limited to the 2011 Minister of                   MC99 adoption.
Transportation Regulation No. 77                                                                              TERENCE
as amended by Regulation No. 92                       Nonetheless, it is envisaged that
                                                                                                              LIEW
(Regulation 77) that provides for a                   more detailed guidelines on
different compensatory regime for                     the incorporation of MC99 into
passenger injury or death, does not                   Indonesian law may be enacted,
seem to clearly distinguish between                   which should provide some
domestic and international carriage.                  welcome clarity.

                                                                                                              INDRA
                                                                                                              PRAWIRA

                                                                                                                      Indonesia in depth: 2019 industry outlook 15
Generating progress: Updated regulation aims to encourage
consumer use of solar energy for electricity generation
Through the Presidential Regulation            operation of state electricity company   A Rooftop PV System may also
No. 22 of 2017 regarding General               Perusahaan Listrik Negara (Persero)      be operated consumers who are
Planning for National Energy                   (PLN)’s grid, and comply with the        not consumers of PLN, provided
(RUEN), the Indonesian government              provisions of laws and regulations on    that they submit a report on the
mandated that rooftops of all                  the use of domestic goods/services.      System’s construction and installation
government buildings and luxury                                                         to the Director General of New
housing/residential/apartment                  However, the Rooftop PV System is        Energy, Renewable Energy and
complexes had, respectively, at                not subject to a capacity charge and     Conservation at Ministry of Energy and
least 30% or at least 25% cover by             emergency energy charge.                 Mineral Resources.
photovoltaic panels.
                                               The capacity of a Rooftop PV System      Following the issuance of MEMR
In order to accelerate consumer use            is limited to a maximum of 100% of       49/2018, Rooftop PV Systems that
of green energy, on 16 November                the consumers’ installed capacity,       have been built and installed
2018, the Ministry of Environment              which is determined by the inverter’s    previously are declared to be in
and Mineral Resources issued                   total capacity.                          accordance with the provisions of
MEMR 49/2018 , which sets out the                                                       MEMR 49/2018.
                                               The calculation of a consumer’s
requirements for consumers to use
                                               exported electricity is made based       The method of calculation of the
a rooftop photovoltaic power station
                                               on export kWh value recorded at the      consumers’ electrical power export-
system (Rooftop PV System).
                                               export-import kWh meter multiplied       import by a Rooftop PV System that
What is a Rooftop PV System?                   by 65%. This differs from the previous   was built before the issuance of
                                               regime, where consumers were             MEMR 49/2018 will remain valid
A Rooftop PV System consists of                paid 100%.                               until 31 December 2018.
photovoltaic modules, inverters,
electrical connections, security               A monthly calculation is made
systems and an export-import                   regarding to the difference between
kWh meter.                                     the import kWh value and export
                                               kWh value. The calculation of a
With the aim of reducing consumers’            consumer’s electrical power export-
electricity bills, its use must take into      import took effect on 1 January 2019.
account the safety and reliability of

16 Indonesia in depth: 2019 industry outlook
For further information on this or
                                                                                   other issues in the energy sector,
                                                                                   please contact the authors
                                                                                   of this article:

                                                                                   HAYDN                    IVAN
                                                                                   DARE                     CHIA

                                                                                   GUSNANDI
                                                                                   HALIADI

What is the new process for consumers?

                   • C
                      onsumers must file an application with the general manager of the regional/distribution base unit of
 Application         PLN, with a copy to the Director General of Electricity and Director General of New Energy, Renewable
                     Energy and Conservation at Ministry of Energy and Mineral Resources.

 Evaluation        • PLN verifies and evlauates the appliation within 15 working days of submission.

                   • Consumers must not construct or install the System prior to receiving PLN approval.
 Construction      • The construction and installation must be done by either:
 and                  • a business entity for the construction and installation of the Rooftop PV System.
 installation         • or a state-owned or regional government-owned institution that carries out the construction and
                         installation of new energy power plants and other renewable energy

 Inspection
                   • A
                      n Operational Worthiness Certificate (Sertifikat Laik Operasi) is required, issued by the accredited
 and                 Electrical Engineering Inspection Agency (Lembaga Inspeksi Teknik Tenaga Listrik).
 examination

 Installation of
                   • P
                      LN is obliged to provide and install a kWh meter to measure the export and import
 Export-import       of electricity by consumers.
 kWh Meter

                                                                                                     Indonesia in depth: 2019 industry outlook 17
If the IDERA is in favour of the direct
New IDERAs: Recent regulatory changes                                                    lessor, the DGCA will accept a CDDA
affecting the aviation finance industry                                                  from the direct lessor in favour of
                                                                                         any owner or financier, provided the
                                                                                         IDERA and CDDA are submitted to
The Indonesian aviation sector                 What is an IDERA?
                                                                                         the DGCA together with the CDL
continues to grow rapidly. With the
                                               An IDERA is an authority document         (which will be acknowledged by and
majority of aircraft operated by
                                               executed by the owner/operator of an      registered with the DGCA).
Indonesian airlines being procured
from foreign lessors or purchased              aircraft, granting the authorised party
                                                                                         Key considerations
with financing from foreign lenders,           or its certified designee the right to,
it is important for international              following a default, deregister and       It is important to note that if the
stakeholders to be aware of the                export such aircraft from the aircraft    DGCA, for whatever reason, refuses to
implications of the Regulation of              registry in the state in which the        record an IDERA or even if it simply
Minister of Transportation No.52 of            aircraft is habitually registered.        takes a long time for the IDERA and
2018 (New MOT Regulation).                                                               any CDL to be recorded in Indonesia
                                               How does the New MOT Regulation
                                                                                         and that, in the meantime, an event
What brought about the New MOT                 affect IDERAs?
                                                                                         of default occurs, the parties can
Regulation?                                                                              produce any Deregistration Power
                                               The New MOT Regulation expressly
                                               permits an IDERA to be granted in         of Attorney (DPOA), which would
The Cape Town Convention is fully
                                               favour of a creditor i.e. chargee in a    be in favour of the owner, and any
implemented and enforceable
                                               security agreement, conditional seller    Deregistration Consent Letter (DCL),
in Indonesia.
                                               in a title reservation agreement, or      which would be in favour of the
However, there was confusion                   lessor in a lease agreement.              financier, in an Indonesian court for
surrounding Indonesia’s Directorate                                                      the purposes of applying for the
General of Civil Aviation’s                    The DGCA will consider accepting          deregistration of the aircraft from the
(DGCA) treatment of Irrevocable                registration of an IDERA, provided the    DGCA. The DPOA and DCL do not
Deregistration and Export Request              following requirements are fulfilled:     need to be registered in Indonesia for
Authorisations (IDERAs) until the                                                        this purpose.
                                               ●   The DGCA’s new IDERA
New MOT Regulation was
                                                   form is used.                         Note: This advice is correct as at
implemented in November 2018.
                                                                                         December 2018. It is important to
                                               ●   DGCA prescribed application
What is the Cape Town                                                                    obtain advice on current practice
                                                   forms, which may include a
Convention?                                                                              and procedure in Indonesia when
                                                   Certified Designee Deed of
                                                                                         considering aircraft transactions
The 2001 Cape Town Convention                      Appointment (CDDA) and
                                                                                         in Indonesia.
and its Aircraft Equipment Protocol                Certified Designee Letter (CDL)
are, together, known as the Cape                   are completed and submitted.
                                                                                         For more information on this or other
Town Convention.                                                                         topics regarding Aviation Finance,
                                               ●   The IDERA is in favour of a party
                                                   other than the direct lessor, e.g.    please contact the author of this article:
The Cape Town Convention on
International Interests in Mobile                  the financier.
Equipment is an international treaty                                                     ALEXANDRA            HERBERT
                                               ●   A summary of agreements,              FORREST              STAYER
intended to standardise transactions
                                                   written bilingually (Bahasa
involving movable property by
                                                   Indonesian and English), and
creating an international framework
                                                   signed by all parties involved in
for the formation, registration –
                                                   the agreement is submitted.
through an International Registry,
protection and enforcement of certain          ●   A Statement Letter on the DGCA’s
international interests in airframes,              prescribed form, signed by the
aircraft, engines and helicopters.                 aircraft operator and the party
                                                   authorised under the IDERA, not
                                                   to bring any legal action against
                                                   the DGCA as a result of the IDERA
                                                   registration.

18 Indonesia in depth: 2019 industry outlook
To test whether a company has
Don’t keep your head in the sand(box):                                                                  fulfilled those criteria and can be
Advice for fintechs on OJK’s new digital                                                                legally operating as an IKD, POJK
                                                                                                        13/2018 sets three stages that a
financial innovation regulation                                                                         company must undergo, namely:

Following OJK’s recent passing of a                  innovation, customer protection and                1. Recordation.
new regulation on digital financial                  stronger risk management.
innovation, we outline its remit                                                                        2. Regulatory sandbox,
and explore its likely benefits and                  Amongst its key features are the
                                                     establishment of a sandbox and                     3. Registration.
challenges alike for the financial
technology (fintech) industry in the                 requirements to record and register
                                                                                                        How to apply
months ahead.                                        for fintech operators,.
                                                                                                        The first step, which is recordation, is
Current fintech climate                              The scope of POJK 13/2018
                                                                                                        a must for any operator of business
                                                     The regulation shall be applicable to              within the scope of IKD, except for
Both the fintech industry and the
                                                     any digital financial innovation (Inovasi          those who have been registered
market have been growing at a rapid
                                                     Keuangan Digital or IKD), which is                 or have obtained licensed from
pace over the last couple of years.
                                                     defined as activities surrounding                  the OJK prior to the enactment of
Based on data compiled by                            updating Business processes and                    the regulation.
Fintechnews, there were a total of                   business models, and financial
                                                                                                        This obligation was effective since
167 fintech companies established                    instruments that provide new added
                                                                                                        16 September 2018. The application
in Indonesia in May 2018; more than                  value in the financial services sector,
                                                                                                        for recordation automatically serves
triple the number in 2015.1                          by engaging in the digital ecosystem.
                                                                                                        as an application to be tested at the
Payment and lending fintechs each                    Activities covered under these                     regulatory sandbox. Such application
compose more than 30% of the pie                     criteria are:                                      should be accompanied by
chart, with these services growing at                                                                   documentations provided under
16.3% annually.                                      ●●   Transaction settlement.                       Article 6.

However, other services, such as                     ●●   Capital raising.                              To be accepted into the regulatory
market provisioning and aggregators,                                                                    sandbox, a fintech has to fulfil a set
                                                     ●●   Investment management.                        of criteria, e.g. being a novel business
are predicted to gain traction in the
coming years.                                                                                           model, having a sizeable market and
                                                     ●●   Fund raising and distribution.
                                                                                                        being registered in the association
The background to POJK 13/2018                       ●●   Insurance.                                    of operators.

Keeping up with the market trends,                   ●●   Market support.                               To clarify, the sandbox may not
OJK has issued a series of regulation                                                                   be suitable for fintech businesses
targeting fintech services.                          ●●   Other digital financial supporter.            deemed by the OJK to be similar to
                                                                                                        those already regulated.
It started with fintech lending through              ●●   Other financial services activities,
Regulation No. 77/POJK.01/2016 on                         such as block chain-based                     POJK 13/2018 also makes a
Technology-Based Fund-Lending                             products.                                     distinction between a financial
Services, dated 28 December 2016.                                                                       services institution (LJK) and another
                                                     Mechanism of recordation, regulatory
                                                                                                        party conducting business in the
More recently, it has sought to extend               sandbox and registration
                                                                                                        financial sector (non-LJK), in terms
its arm to other services by releasing                                                                  of which authority should receive
                                                     To harness the innovation of
Regulation No. 13/POJK.02/2018 on                                                                       the application.
                                                     fintech, POJK 13/2018 requires a
Digital Financial Innovation in the
                                                     company to meet certain criteria.
Financial Services Sector on 15 August                                                                  A non-LJK’s application should be
                                                     Such requirements include the ability
2018 (POJK 13/2018).                                                                                    submitted to the unit in charge of
                                                     to collaborate with other financial
                                                                                                        the research and development of IKD
POJK 13/2018 sets out the basic                      services, benefit for financial inclusion
                                                                                                        at the OJK (which as we understand
regulatory framework to which all                    and compliance with consumer and
                                                                                                        has been established since August
digital financial companies will be                  data protection-related regulations.
                                                                                                        2018 under the name OJK Innovation
subject. It is designed to promote                                                                      Centre for Digital Financial Technology
                                                                                                        or OJK Infinity).
1. F
    intechnews Singapore, “Fintech Indonesia Report 2018 – The State of Play for Fintech Indonesia,”
  http://fintechnews.sg/20712/indonesia/fintech-indonesia-report-2018/, accessed on 3 January 2018.             Indonesia in depth: 2019 industry outlook 19
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