International Update Archives

Mechanism that Needs to be Considered in the IPO Procedure in the Regulation

Leave a Comment / Domestic Reference, International Update, News & Legal Update / Kamal

From: A.M Oktarina Counsellors at Law Contributors: Pramudya Yudhatama, S.H., Khaifa Muna Noer Uh’Dina, S.H., Raysha Alfira, S.H., Putri Shaquila, S.H. Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.L.M (Adv). Background Nowadays, there are many companies in practice that want to list their names for Initial Public Offering (“IPO“), that is one example such as, launching from the news “Multi Garam Utama (FOLK) Mau IPO, Incar Dana Publik Rp 60 M” (source: https://www.cnbcindonesia.com/market/20230720072955-17-455703/multi-garam utama–folk–mau-ipo-incar-dana-publik-rp-60-m), and also “IPO, Ingria Pratama Bidik Dana sebesar Rp 353, 9 Miliar” (source: https://economy.okezone.com/read/2023/07/20/278/2849194/ipo-ingria-pratama-bidik-dana-rp353-9-miliar), who will conduct their IPO as we know, the IPO system itself provides many benefits for companies if they conduct an IPO, but keep in mind the mechanism and procedure in registering a company to conduct an IPO is not that simple. Of course, there are still many companies that want to IPO, but have not been able to meet the requirements and/ or mechanisms of their own IPO that are also regulated in various related regulations. So what are the mechanisms and conditions for companies that want to conduct an IPO? Legal Basis Law Number 8 of 1995 concerning Capital Market (“Law 8/1995“). Law Number 40 of 2007 concerning Limited Liability Companies (“Law 40/2007“). Law Number 4 of 2023 concerning the Development and Strengthening of the Financial Sector (“Law 4/2023“). Financial Services Authority Regulation Number 76/POJK.04/2017 concerning Public Offering by Shareholders (“POJK 76/POJK.04/2017“). Regulation of the Financial Services Authority of the Republic of Indonesia Number 41/POJK.04/2020 concerning the Implementation of Electronic Public Offerings of Equity, Debt Securities, and/or Sukuk (“POJK 41/POJK.04/2020“). Although we are familiar with hearing IPO, we need to know based on the IPO (Go Public) Guide from the official website of the Indonesia Stock Exchange (“IDX”), namely IPO means a solution from the capital market for companies to obtain funding through the offering of part of the company’s shares to the public or commonly called going public. It may also be interpreted as a public offering that means securities offering activities carried out by issuers to sell securities to the public based on the procedures regulated in the Law on the Capital Market and it is implementing regulations, that we may find listed in Article 1 paragraph (1) POJK 41/POJK.04/2020. This process also makes the company transform from a closed company to a public company that will be managed better, more professionally and transparently. In terms of practice, the IPO mechanism involves several other agencies besides the IDX, and has its own interrelationships. The implementation of these regulations is also more or less found in institutions such as the Financial Services Authority (“OJK”) and the Capital Market Supervisory Agency (“Bapepam“). Then in carrying out the IPO process there are several requirements and procedurals that must be met first. In the provisions of POJK 76/POJK.04/2017 Article 1 paragraph 3, that there are provisions for the definition of the number of shares in becoming a public company, that reads: “A Public Company is a company whose shares have been owned by at least 300 (three hundred) shareholders and have a paid-up capital of at least IDR 3,000,000,000.00 (three billion rupiah) or a number of shareholders and paid-up capital determined by Government Regulation“. And it has also been regulated in Law 40/2007 Article 1 number 8: “A Public Company is a Company that meets the criteria for the number of shareholders and paid-up capital in accordance with the provisions of laws and regulations in the field of capital market“. So what is the mechanism? in terms of procedures for submitting IPO registration statements, it has been regulated as follows: “In conducting a public offering, it is mandatory to submit a registration statement to the OJK by submitting documents, namely a cover letter for the registration statement and prospectus. Shareholders or public companies are responsible for the completeness of the registration statement documents registered with OJK. Shareholders or public companies can make an initial offer since the registration statement is submitted to OJK. In making an initial offer, the registration statement letter must contain all information in the prospectus submitted to OJK. Announce the prospectus of a public offering of shares owned by issuers or public companies since submitting a registration statement to OJK with proof of announcement that must be submitted to OJK no later than the end of the 2nd (second) working day after the announcement. If there is improvement or additional information in the prospectus, the issuer or public company must announce no later than 2 (two) working days from the effective registration statement to OJK. A public offering can only be made if the registration statement is effective on the basis of the lapse of 45 days from the date the registration statement is received by OJK and from the date of the last amendment submitted by the issuer or public company or requested by OJK. Upon the effectiveness of the registration statement and before the commencement of the public offering period, public companies are obliged to provide a prospectus. The public offering period is carried out within a period of no less than 3 working days. Submit a report on the results of a public offering by issuers or public companies to OJK no later than 10 (ten) working days. If the number of orders during the stock offering period exceeds the number of shares offered, shareholders who make a Public Offering in allotment must give priority to share orders made by shareholders of the issuer or existing public company. If there are remaining shares, the issuer or public company must make proportional allotment to bookers who are not shareholders of the issuer or public company. In the case of allotment of shares for a public offering by issuers or public companies, it must be completed no later than 2 (two) working days after the end of the public offering period. In the event that there is a refund for the share purchase order that

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Difference between Bankruptcy and Liquidation based on Limited Liability Company Law No.40 of 2007 and Law No. 37 of 2004 concerning Bankruptcy and Suspension of Payment

Leave a Comment / Domestic Reference, International Update, News & Legal Update / Kamal

From: A.M Oktarina Counsellors at Law Contributors: Pramudya Yudhatama, S.H., Khaifa Muna Noer Uh’Dina, S.H., Raysha Alfira, S.H., Putri Shaquila, S.H. Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.L.M (Adv). Background In recent times, there have often been companies that cannot survive when they experience destruction and / or failure in running their business and business and then decide to carry out Liquidation and / or Bankruptcy for the company. However, as we know, to carry out Liquidation and Bankruptcy requires requirements and procedures that must be fulfilled first by the company. Then what kind of steps must be taken by the company to carry out Liquidation and also Bankruptcy and what is the difference between Liquidation and Bankruptcy? Legal Basis Law Number 40 of 2007 concerning Limited Liability Companies (“UUPT“). Law Number 37 of 2004 concerning Bankruptcy and Suspension of Payment (“UUK-PKPU”). Regulation of the Minister of Finance of the Republic of Indonesia Number 272/PMk.05/2014 concerning the Implementation of Liquidation of Accounting Entities and Reporting Entities at State Ministries/Institutions (“Permenkeu No. 272/PMK.05/2014“). Indonesian Civil Code (“Civil Code“). Before diving further into the mechanism of bankruptcy and liquidation, by definition bankruptcy itself refers to Article 1 paragraph (1) of the Law that reads “Insolvency is a general confiscation of all assets of the Insolvent Debtor whose management and settlement is carried out by the Curator under the supervision of the Supervising Judge as stipulated in this Law.” And also the definition of liquidation, namely the act of settling all assets and liabilities as a result of the termination / dissolution of accounting entities and / or reporting entities at state ministries / institutions, referring to Permenkeu No.272/PMK.05/2014. Based on the results of our research there is a difference between liquidation and bankruptcy, it includes regulations, conditions, legal consequences, authorities and others. So what are the differences? Let’s look at the table below: DIFFERENCE LIQUIDATION BANKRUPTCY Regulation UUPT UUK-PKPU Condition Some conditions and mechanisms for the Liquidation process: – Based on the decision of the GMS and based on the determination of the court; – Companies that have been declared bankrupt are in a state of insolvency as stipulated in the Law on Bankruptcy and Suspension of Debt Payment Obligations; or – the revocation of the Company’s business license thus requiring the Company to liquidate in accordance with the provisions of laws and regulations. – must be followed by liquidation carried out by the liquidator or curator; – The Company cannot take legal action, unless it is necessary to settle all the Company’s affairs in the context of liquidation. – In the event that the dissolution occurs on the basis of a decision GMS, the period of establishment of that is stipulated in The articles of association have expired or are repealed bankruptcy based on a commercial court decision and GMS does not appoint liquidators, the Board of Directors acts as Liquidator. (Vide Article 142 paragraph (1), paragraph (2) and paragraph (3) of the PT Law). That the conditions for the occurrence of the mechanism or process of Insolvency must be fulfilled 2 elements: – There are 2 (two) or more creditors; – There is 1 (one) debt that is due or due and collectible that is not paid by the debtor. “A debtor who has two or more Creditors and does not pay in full at least one debt that has fallen due and can be collected, is declared bankrupt by a decision of the Court, either on his own application or on the application of one or more of his creditors.” (Vide Article 2 paragraph (1) UUK-PKPU). Application Procedure – Announcing Indonesian newspapers and state news, (“BNRI”) followed by notifying the Ministry of Law and Human Rights (“Kemenkunham“) to be recorded in the company’s register that the company is in liquidation. – In the announcement of the newspaper and BNRI are required to add the phrase “in liquidation” in the newspaper that has been created on behalf of the company that will carry out the liquidation process. – The liquidator must also notify the Minister about the plan to distribute the liquidated assets by notifying by registered letter to the relevant Minister, the payment of the remaining liquidated assets to shareholders; and other actions that need to be taken in the implementation of wealth clearance. – After the expiration of 90 days of this second announcement, the liquidator can settle by selling assets that have previously been assessed with the services of an independent appraiser followed by distributing these assets to their creditors on the basis of pari passu pro rata parte. – Conduct GMS on the accountability of the liquidation process that has been carried out. – In the event that the GMS accepts accountability for the liquidation process that has been carried out, it is followed by an announcement to the newspaper that is then followed by a notification to the Minister that the liquidation process has ended. – In the event that the announcement has been made, the Minister will record the expiration of the company’s legal entity status and remove the company’s name from the list of companies followed by an announcement in the State Gazette of the Republic of Indonesia. (Vide Article 147 paragraph (1), Article 143 paragraph (2), Article 149 paragraph (1), Article 152 paragraph (1), Article 152 paragraph (3), Article 152 paragraph (5) j.o Article 152 paragraph (8) of the Law and Article 1131 jo.1132 of the Civil Code) – The application for bankruptcy declaration is submitted to the Commercial Court and those entitled to file it include creditors, debtors, Bank Indonesia, Minister of Finance, Capital Market Supervisory Agency and prosecutors in the public interest. – The application for bankruptcy statement that has been received by the court will be processed through an examination hearing and no later than the bankruptcy decision must be read 60 (sixty) days after the date of registration of the bankruptcy statement

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Legal Protection for Debtors When the Fiduciary Guarantee Object is Unilaterally Deprived by Creditors

Leave a Comment / Domestic Reference, International Update, News & Legal Update / Kamal

From: A.M Oktarina Counsellors at Law Contributors: Ricki Rahmad Aulia Nasution, S.H., Pramudya Yudhatama, S.H., Raysha Alfira, S.H., Khaifa Muna Noer Uh’Dina, S.H., Putri Shaquila, S.H. Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.L.M (Adv). Background Nowadays, there are many cases of misunderstanding between Creditors and Fiduciary Debtors, in that objects to the Fiduciary Guarantee Object are executed by Creditors unilaterally and arbitrarily without a determination from the Court. The execution of Fiduciary Guarantee cannot be done carelessly by Creditors because there must be a determination from the Court and also the existence of a Notary Deed and Fiduciary Guarantee Certificate against the object of guarantee that has been registered. So what are the legal remedies that may be taken by the Debtor and legal protection against the Debtor for the Fiduciary Guarantee Object executed by the Creditor unilaterally and arbitrarily? Legal Basis Criminal Code (“KUHP“) Civil Code (“KUH Perdata“) Herziene Inlandsch Reglement (“HIR“) Rechtreglement voor de Buitengewesten (“RBg“) Law Number 42 of 1999 concerning Fiduciary Guarantee (“Law 42/1999“) Government Regulation Number 21 of 2015 concerning Procedures for Registration of Fiduciary Guarantees and Costs for Making Fiduciary Guarantee Deed (“PP 21/2015“) Constitutional Court Decision Number 18/PUU-XVII/2019 (“Constitutional Court Decision 18/PUU-XVII/2019“) Regulation of the Head of the National Police of the Republic of Indonesia Number 8 of 2011 concerning Securing the Execution of Fiduciary Guarantees. (“Perkapolri 8/2011“) Before understanding further into the fiduciary mechanism, by definition fiduciary itself refers to Article 1 number 1 of Law 42/1999 that reads: “Fiduciary is the transfer of ownership rights of an object on the basis of trust provided that the object to which ownership rights are transferred remains in the possession of the owner of the object.” and Article 1 number 2 of Law 42/1999 that reads: “Fiduciary Guarantee is a security right to movable goods, both tangible and intangible, and immovable goods, especially buildings that cannot be encumbered with dependent rights as referred to in Law Number 4 of 1996 concerning Dependent Rights that remain in the control of the Fiduciary, as collateral for the repayment of certain debts, which gives the Fiduciary a preferred position over other creditors.” Judging from the two articles above, when the Creditor transfers property rights to the Debtor for Fiduciary Guarantee, the Fiduciary Guarantee Object is still in the hands of the Debtor for use. When the Debtor is deemed to have committed Default in accordance with Article 1238 of the KUH Perdata for not carrying out its obligations in accordance with the principal agreement between the parties, the Creditor may execute the Fiduciary Guarantee Object. However, the execution cannot be carried out directly, and there are mechanisms that must be known, such as the following provisions. Referring to Article 5 paragraph (1) of Law 42/1999 that reads: “(1) The encumbrance of Objects with Fiduciary Guarantee is made by notarial deed in Indonesian and is a deed of Fiduciary Guarantee” Article 4 PP 21/2015 that reads: “The application for registration of Fiduciary Guarantee as referred to in Article 3 shall be submitted within a maximum period of 30 (thirty) days from the date of making the deed of Fiduciary Guarantee.” Article 11 paragraph (1) of Law 42/1999 that reads: “(1) Objects encumbered with Fiduciary Guarantees must be registered.” It may be explained, the fiduciary must be stated in the Notarial Deed and registered. The mechanism, after obtaining the deed of Fiduciary Guarantee, the object is registered with the Fiduciary Registration Office by the Creditor by attaching a statement of registration of Fiduciary Guarantee, after that according to Article 14 paragraph (1) of Law 42/1999 explains: “(1) The Fiduciary Registration Office issues and delivers to the Fiduciary a Certificate of Fiduciary Guarantee on the same date as the date of receipt of the application for registration.” The Fiduciary Guarantee is born if the Object of Fiduciary Guarantee has been registered and a Certificate of Fiduciary Guarantee has been issued. If the Fiduciary Guarantee Object has not been registered, the Creditor has no right to execute the Fiduciary Guarantee Object. This of course provides legal protection and legal certainty to the Debtor. In the event that the Creditor wishes to execute the Fiduciary Guarantee, it has several ways as stipulated in Article 29 paragraph of Law 42/1999 that reads: “(1) If the debtor or Fiduciary defaults, the execution of the Thing which is the object of the Fiduciary Guarantee may be carried out by: implementation of executory title as referred to in Article 15 paragraph (2) by the Fiduciary Beneficiary. sale of Objects that are the object of Fiduciary Guarantee on the Fiduciary Beneficiary’s own power through public auction and take repayment of his receivables from the proceeds of the sale; underhand sales made under the agreement of the Fiduciary Grantor and Beneficiary if in such a way the highest price in favor of the parties can be obtained. (2) The implementation of the sale as referred to in paragraph (1) point c shall be carried out after the lapse of 1 (one) month since notified in writing by the Grantor and or Fiduciary to the interested parties and announced in at least 2 (two) newspapers spread in the relevant area.” Then refer to Article 15 paragraphs (2) and (3) of Law 42/1999 that reads: “(2) The Fiduciary Guarantee Certificate as referred to in sub-article (1) shall have the same executory power as a court decision that has obtained permanent legal force. (3) If the debtor defaults, the Fiduciary Receiver shall have the right to sell the Thing which is the object of the Fiduciary Guarantee in his own discretion.” Referring to the two articles above, that has been published through the Constitutional Court Decision 18/PUU-XVII/2019, it is explained that Article 15 paragraph (2) of Law 42/1999 on the phrases “executory power” and “the same as a court decision” is contrary to the Constitution of the Republic of Indonesia Year 1945 and has no binding legal force as long as it is not interpreted “For

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Immigration Regulations on the Deportation of Overstay Foreigners

Leave a Comment / International Update, News & Legal Update / Kamal

From: A.M Oktarina Counsellors at Law Contributors: Pramudya Yudhatama, S.H., Raysha Alfira, S.H., Khaifa Muna Noer Uh’Dina, S.H., Putri Shaquila, S.H. Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.L.M (Adv). Background Indonesia, especially the island of Bali transformed into one of the favorite tourist destinations of the world community. Many people flock to enjoy the holiday period. Of the many tourists, of course, we cannot “turn a blind eye” to the existence of some unscrupulous tourists who sometimes do not comply with regulations in Indonesia. One of them is due to overstay. Of course, there are various reasons that cause this to happen. But have we ever thought, what is the meaning of overstay? Overstay is the condition of a foreign who is still in Indonesian territory, but the person concerned does not have a valid stay permit. This raises its own problems, and needs the right solution to deal with it. In Indonesian immigration regulations, this has been regulated, related to what matters and the following sanctions related to the deportation mechanism for overstaying. Because nowadays, quite a lot of unscrupulous foreign tourists adorn our social media timelines, and are subject to sanctions, one of that is deportation. Legal Basis Law Number 6 of 2011 on Immigration (“Law 6/2011”) Government Regulation Number 31 of 2013 on Regulations for the Implementation of Law Number 6 of 2011 on Immigration (“PP 31/2013“) Government Regulation Number 48 of 2021 on the Third Amendment to Government Regulation Number 31 of 2013 on Implementing Regulations of Law Number 6 of 2011 on Immigration. (“PP 48/2021“) Government Regulation Number 28 of 2019 on Types and Tariffs of Non-Tax Types of State Revenues that apply to the Ministry of Law and Human Rights (“PP 28/2019“) In Indonesian immigration regulations, foreigners have been regulated by Law 6/2011. This is reflected in the sound of Article 1 number (9) that reads: “ Foreign National means a person who is a non-Indonesian citizen.” Meanwhile, permits related to foreigners residing in Indonesian territory are contained in Article 1 number (18) of PP 48/2021 that reads: “A Stay Permit is a permit granted to a Foreign National by an Immigration Officer or Foreign Service Officer either manually or electronically to be in Indonesian Territory.” The types of stay permits themselves, referring to Article 48 paragraph (3) of Law 6/2011 are divided into several types, namely diplomatic Stay Permit, service Stay Permit, visitor Stay Permit, temporary Stay Permit; and Permanent Stay Permit. In the definition of deportation itself, specifically contained in Article 1 number (36) of Law 6/2011 that reads: “Deportation means an action to forcibly remove a Foreign National from Indonesian Territory.” Please note, before the existence of deportation sanctions, Indonesian immigration regulations are known to take several preventive measures against foreigners who will enter Indonesia. In this case, an example is that immigration officials have the authority to reject foreigners in the event that: “Immigration Officer refuses any Foreign National to enter into Indonesian Territory in the event that the foreign nationals: are included in the Entry Ban list; do not have a legal and valid Travel Document; have a false Immigration document; do not have a Visa, unless those who are exempted from the obligation to have a Visa; provided false statement when applying for a Visa; suffer from a contagious or infectious disease harmful to public health; are involved in any international crime and transnational organized crime; are included in a wanted person list to arrest of a foreign country; are involved in any insurgency against the Government of the Republic of Indonesia; or are affiliated with any network of prostitution, human trafficking, and people smuggling activities or practices.” (Article 13 paragraph (1) Law 6/2011) Then in practice often foreign nationals, such as some examples in Bali, experience overstays. In Article 78 of Law 6/2011 itself, several sanctions mechanisms are regulated imposed on foreigners who experience overstay. “(1) A Foreign National holding a Stay Permit which validity period has expired and still remaining in Indonesian Territory not exceeding 60 (sixty) days from the Stay Permit expiry date is liable to a fine in accordance with the provisions of legislation. (2) The Foreign National who fails to pay fines as referred to in section (1) is subject to Immigration Administrative Action in the form of Deportation and Entry Ban. (3) A Foreign National who holds a Stay Permit which validity period has expired and still remaining in Indonesian Territory exceeding 60 (sixty) days from the Stay Permit expiry date is subject to Immigration Administrative Action in the form of Deportation and Entry Ban.” Continuing this, for foreigners who experience overstay, there are fines and entry ban, other than deportation. The fine mechanism is imposed through the legal basis in Article 5 point (6) PP 28/2019, while for entry ban there is Article 1 point (29) Law 6/2011 that reads: “Entry Ban means a prohibition against a Foreign National from entering Indonesian Territory for Immigration reasons.” So will foreign nationals who overstay be immediately deported in other cases? Of course, this is not the case, considering that before deportation there is a mechanism that needs to be done. One of them is to place the foreigner in an immigration detention room. “(1) The Immigration Officer shall be authorized to place an Foreigners in the Immigration Detention Room if the Foreigner: be in Indonesian Territory without having a valid Stay Permit or having an expired Stay Permit; reside in Indonesian Territory without having a valid Travel Document; subject to Immigration Administrative Action in the form of cancellation of a Stay Permit for committing acts that are contrary to the provisions of laws and regulations or disturbing public security and order; pending the execution of Deportation; or waiting for departure out of Indonesian Territory because of being denied an Entry Certificate. (2) Placement of Foreigners in the Immigration Detention Room as referred

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Announcement of Cooperation between AM OKTARINA Counselor at Law and Chongqing Jingsheng Law Firm

Leave a Comment / Domestic Reference, International Update, News, News & Legal Update / Kamal

Announcement of Cooperation between AM OKTARINA Counselor at Law and Chongqing Jingsheng Law Firm It is with great pride, and honor, that we announce that we have entered into a Cooperation with Chongqing Jingsheng Law Firm. Our main goals are to improve each other’s business, recommend each other in the best legal services between countries, and increase investment opportunities. Chongqing Jingsheng Law Firm is a law firm that focuses on legal consulting services, non- litigation services, and litigation and arbitration. Established since 1996, founding by Ms. Jing Peng, it has various fields of competence, such as M&A investment financing, Real estate and construction, Internal business and intellectual property, Government and public affairs, Healthcare and life sciences, Cybersecurity and data compliance, Liquidation and restructuring, Commercial and corporate, Financial securities insurance, Criminal, Environmental resources and safety production Family cases and family succession services, with competent lawyers in their fields, Chongqing Jingsheng Law Firm has become one of the leading law firms in China, and widely in East Asia, and has also spread its wings to Europe, namely in the UK, with JINGSHENG Ltd UK. Chongqing Jingsheng Law Firm has a long history, excellent reputation, and has won many prestigious titles, Chongqing Jingsheng Law Firm has twice been named an Outstanding Law Firm in China by the Ministry of Justice of the People’s Republic of China and the China Lawyers Association. We have been called an Outstanding Law Firm, Integrity Law Firm, and Annual Top Law Firm in Chongqing by the Department of Justice of Chongqing and the Chongqing Bar Association. In 2017, Chongqing Jingsheng Law Firm was selected as Corporate/Commercial Recognized Law Firm: Chongqing by Chambers and Partners Asia- Pacific Rankings. Having partners in many countries and continents, Chongqing Jingsheng Law Firm has become a global law firm with outstanding competence. This is a competence and excellence, which of course clients will be given good, structured, and detail-oriented solutions that are positive. It is an honor to work with and collaborate with one of the best law firms. We are certainly determined to be able to help each other, assist, and provide the best competence and always improve the relationship to a level that is always profitable and easy for clients. AM OKTARINA Counselor at Law together with Chongqing Jingsheng Law Firm wishes that the cooperation that will be built will be a good, big, profitable, and positive collaboration in a larger scope. Do you want to know more about Chongqing Jingsheng Law Firm? We can see it through the web htt ps:/ /www.ji ngshenguk.com/ ! Thank you for your cooperation and trust! For further information, please call: – partner@ amokt arina.n et – n.pasaribu@amokt a rina. net – 0817779122

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The Mechanism for Granting Golden Visas, How Indonesia Regulations Regulate It?

Leave a Comment / Domestic Reference, International Update, News & Legal Update / M Kamal

Source : https://www.flaticon.com/free-icon/conversation_610407 From: A.M Oktarina Counsellors at Law Contributors: Pramudya Yudhatama, S.H., C.L.A., Ethania Surinitulo Duha, S.H. Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.L.M (Adv). Background Moving a person, from one country to another, whether for a tourist visit, or for work, is common nowadays. Many countries, including Indonesia, have immigration-related regulations to deal with this, to provide clear and clear procedures, mechanisms, and restrictions. Until it comes down to legal certainty. In this move, we usually find the phrase “Residence permit” which is a legal instrument that is the basis for foreign nationals to stay for some time in Indonesia. However, this must begin with having a visa first. This then becomes interesting, because as we know, recently, the mass media has been hotly talking about giving a Golden Visa to Shin Tae-Yong, through the news “Diterima Shin Tae Yong, Apa Itu Golden Visa?” which was published on July 25th, 2024 (as the link attached). Then the next question is, what is the Golden Visa? Is there any difference with visas in general? Let’s take a look at the following explanation! Legal Basis Law Number 6 of 2011 concerning Immigration as amended by Law Number 6 of 2023 concerning Determination of Government Regulations In Lieu of Law Number 2 of 2022 concerning About Job Creation Become Law (“Law 6/2011“) Regulation of the Minister of Law and Human Rights of the Republic of Indonesia Number 22 of 2023 concerning Visas and Residence Permits (“Permenkumham 22/2023“) Regulation of the Minister of Law and Human Rights of the Republic of Indonesia Number 11 of 2024 concerning Amendments to the Regulation of the Minister of Law and Human Rights Number 22 of 2023 concerning Visas and Residence Permits (“Permenkumham 11/2024“) Before we dive further into the golden visa itself, let’s look at the definition of a visa from Article 1 number 18 of Law 6/2011 as follows : “The Visa of the Republic of Indonesia, hereinafter referred to as the Visa, is a written information, both manually and electronically, given by the official authorized to travel to Indonesia Territory and is the basis for the granting of a Residence permit.” Looking at this definition, a visa is given to a foreigner, as a residence permit for a person for several periods in Indonesia. Furthermore, the visa is the basis for granting a residence permit, which has the following definition, in Article 1 number 21 of Law 6/2011 : “A Residence Permit is a permit granted to a Foreigner by an Immigration Officer or a foreign service official either manually or electronically to be in Indonesia Territory.” Visas themselves, along with residence permits, are divided into several types. For example, for visas themselves, they are divided into 2 (two), namely visit visas, and limited stay visas (Article 3 paragraph 1 of Permenkumham 22/2023), but furthermore, Indonesia also recognizes diplomatic visas and service visas as stated in Article 34 of Law 6/2011. However, through Permenkumham 22/2023, Indonesia issued the latest visa, namely the golden visa. This is stated in Chapter V of the Golden Visa. Article 184 of Permenkumham 22/2023 states “Golden Visa is a grouping of Limited Stay Visas, Limited Stay Permits, Permanent Stay Permits, and Re-entry Permits for a certain period of time.” The golden visa itself can be used for investment, family reunification, repatriation, and a second home. The validity can be valid for 5 (five) years, or 10 (ten) years. (Article 185 of Permenkumham 22/2023) Going deeper, let’s discuss each of the uses of the golden visa, as follows: Investment, which may be given to a Foreigner as an individual investor who intends to establish a company in Indonesia, or who does not intend to establish a company in Indonesia, who will serve as a member of the board of directors or a member of the board of commissioners in a company to be established in Indonesia that is a branch or subsidiary of a company outside the Territory of Indonesia, and a Foreigner a representative of a holding company abroad, who make visits or duties to branches or subsidiaries in Indonesia. (Article 186 paragraph 1 of Permenkumham 11/2024) Family Reunification, which can be granted to foreigners who join their husband or wife as holders of Limited Stay Permits or Permanent Residence Permits, children who are not yet 18 (eighteen) years old and unmarried who join their fathers and/or mothers who hold Limited Stay Permits or Permanent Stay Permits; and foreigners who join with children of holders of Limited Stay Permits or Permanent Stay Permits. (Article 187 of Permenkumham 22/2023) Repatriation, which can be given to former Indonesia citizens who will live without a Guarantor, and the descendants of former Indonesia citizens at most the second degree without a Guarantor. (Article 188 of Permenkumham 22/2023) Second home, which can be given to second homes, special skills, world figures, and elderly foreigners aged 55 (fifty-five) years or older. (Article 189 of Permenkumham 11/2024) Therefore, this is a breakthrough that will make it easier for foreigners to be able to contribute more, but of course, the implementation of the golden visa regulation, must be with optimal synergy and coordination. Conclusion It can be concluded that the granting of Golden Visa is a good and useful breakthrough. This can certainly open up good opportunities for foreigners who want to stay longer and contribute positively in Indonesia. However, of course, in its implementation, supervision from related agencies is required, so that the provision can be effective and on target, which in the end produces the same opportunities, and is beneficial for Indonesia. References : https://www.liputan6.com/hot/read/5654095/diterima-shin-tae-yong-apa-itu-golden-visa For further information, please call: partner@amoktarina.co pasaribu@amoktarina.co 0817779122

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Get to Know More about Moral Rights and Economic Matters in Intellectual Property

Leave a Comment / Domestic Reference, International Update, News & Legal Update / Kamal

Image Source : https://www.freepik.com/free-vector/education-easy-learning-set-icons_5152558.htm#fromView=search&page=1&position=0&uuid=09ec3e09-3c03-4e8d-81e6-8c494933448f From: A.M Oktarina Counsellors at Law Contributors: Poppy Putri Hidayani, S.H., L.L.M., Ricky Rahmad Aulia Nasution, S.H., Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.L.M (Adv). Background Intellectual Property is property derived from human Intellectual capacity. For example, works of Literature, Science, Knowledge, Technology, and Art and Brand are works derived from Human Intellectual skills. Human intelligence is clearly visible in these works because it requires a lot of time, effort, energy, thought, imagination, taste, and energy. So that this Intellectual Property raises several rights including Economic Rights and Moral Rights. The owner of the rights in the creative work owns the copyright, It consists of two main rights namely economic rights and moral rights. Economic rights include the right to obtain financial benefits derived from copyright and other related rights. In contrast, moral rights include the right of authors to resist any deviation, mutilation, or other adjustment of their work that harms his honor or reputation. The concept of copyright originally came from the legal systems of civil law countries such as France and Germany which concentrated on individual copyrights, while common law countries such as the United States and the United Kingdom concentrated on copyright. This is stated in several studies that examine the economic concept and moral rights of creators according to the Civil Law and Common Law System. Legal Base Constitution of 1945 (“1945 Constitution”) Law No. 28 of 2014 (Law No.28/2014) Law No. 14 of 2001 (Law No.14/2001) Law No. 15 of 2001 (Law No.15/2001) Law No. 19 of 2002 (Law No.19/2002) Article 1 point 1 of Law No.28/2014 concerning Copyright, states that: “Copyright is the exclusive right of the creator that arises automatically based on the declarative principle after a work is realized in tangible form without prejudice to restrictions in accordance with the provisions of laws and regulations.” Moral rights, which are rights related to the honor and reputation of the creator, are an important part of copyright in many countries, including Indonesia. This is because moral rights are the embodiment of property rights. A global consensus has been reached to regulate copyright taking into account the importance of moral rights. This consensus covers a wide range of international treaties, including the Berne Convention. The term “moral droit” comes from French and has the same meaning as “moral rights”. The term was first used in France and later spread to other countries on the European continent. Quoting Article 5 paragraph 1 of Law No.28/2014 on copyright, “moral rights are exclusive rights owned by the creator forever and consist of: Keep his name on or without his name on the copy in connection with the Public Use of his Work, Using his alias or pseudonym, Changing His Creation in accordance with the propriety in Society Change the title and child titles of a Work Retain its rights in the event of distortion of the Work, mutilation of the Work, modification of the Work, or anything of a nature detrimental to its self-honor or reputation. Article 6 –Article 7 of Law No.28/2014 states “to protect moral rights” When the Creator is alive, his moral rights cannot be transferred, however, after his death, his rights can be exercised for other reasons or on the basis of a will, in accordance with applicable laws and regulations. To protect moral rights, the law stipulates that creators have certain rights. As referred to in Article 5 paragraph 1 of Law No.28/2014, the Creator may have: Copyright management information includes information about methods or systems that can identify the originality of the substance of the Work and its Creator; and information codes and access odes. Copyright electronic information includes information about a Work, which appears and is attached electronically in connection with the Work Announcement activity, the name of the creator, his alias or pseudonym, the Creator as the Copyright Holder, the period and conditions of use of the Work, the number, and information code. As for Marks, what is meant by marks in (Law No.15/2001) is a mark in the form of images, names, words, letters, numbers, color arrangements, or combinations of these elements that have distinguishing power and are used in trading activities for goods or services. Economic rights held by the Creator under the Indonesian Copyright Law are divided into two categories, namely the Right to Publish and the Right to Reproduce the Creation. The first right includes Economic Rights in Law No.28/2014 concerning Copyright, regulated in Article 9 paragraph 1 of Law No.28/2014, which states that: Economic Rights for Creators or Copyright Holders consist of: Publishing Works The Multiplication of Creation in all its forms Translation of Creation Adapting, arranging, or transforming the Creation Distribution of Works Creation Show Creation Announcement Creation Communication Creation Rental In addition, authorization from the Creator or Copyright Holder is required for any person or party who wishes to exercise such economic rights. Based on the Copyright Law, economic rights are valid during the life of the creator and for 70 years after his death, in contrast to Patent Rights as explained in (Law No.14/2001) that: “The patent is granted for a period of twenty years from the Date of Receipt and that period cannot be extended” This economic right includes the right to reproduce, announce, distribute, rent, lend, and commercially exploit copyrighted works. Economic rights apply to the creator, but can also be granted to legal entities for a period of 50 years from the time the copyrighted work is published. Articles 23-28 of Law No.28/2014 regulate subjects that acquire economic rights, such as artists, record producers, writers and broadcasters. As a case in point, Farah Quinn, a celebrity and presenter, sued an online shopping site for using photos of her for commercial purposes without her consent. At a news conference, Farah, who came with his legal team, said the case began when a friend contacted him and confirmed that his photo was

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Regulatory Analysis of Arm’s Length Principle in Transactions Affected by Special Relationships

Leave a Comment / Domestic Reference, International Update, News & Legal Update / Kamal

Image Source: https://www.freepik.com/free-vector/hand-drawn-credit-assessment-concept_20289181.htm#fromView=search&page=1&position=36&uuid=8ba850a8-ee57-4c96-93e0-b3c7ffaa7a49 From: A.M Oktarina Counsellors at Law Contributors: Ethania Surinitulo Duha, S.H., Pramudya Yudhatama, S.H., C.L.A. Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.L.M (Adv). Background A business activity must be inseparable from the transaction, both with parties who have a special relationship and with parties who do not have a special relationship. Often entrepreneurs look for loopholes to be able to manipulate prices far from reasonable limits. Due to the prevalence of these events, the Directorate General of Taxes of Indonesia issued regulations as a preventive measure to reduce or even eliminate these acts of price manipulation. Entrepreneurs in their capacity as taxpayers also have an obligation to comply with existing tax regulations. One way to counter such price manipulation is to establish the Arm’s Length Principle (“ALP“). Basically, ALP applies when there is a transaction that is affected by a special relationship. However, what is this special relationship meant by? And what kind of transactions require ALP? Legal Basis Government Regulation Number 55 of 2022 concerning Adjustment of Arrangements in the Field of Income Tax; (“PP No.55/2022“) Regulation of the Ministry of Finance of the Republic of Indonesia Directorate General of Taxes Regulation of the Director General of Taxes No. Per-32/PJ/2011 concerning Amendments to the Regulation of the Director General of Taxes No. Per-42/PJ/2010 concerning the Application of the Principles of Fairness and Business Practices in Transactions between Taxpayers and Parties with Special Relationships; (“PMK No. Per-32/PJ/2011“) Regulation of the Minister of Finance of the Republic of Indonesia Number 172 of 2023 concerning the Application of the Principles of Fairness and Business Practices in Transactions Influenced by Special Relationships; (“PMK No.172/2023“) ALP is a principle that regulates that if the conditions in the transaction carried out between the parties who have a special relationship are equal to or comparable to the conditions in the transaction carried out between the parties who do not have a special relationship, the price or profit in the transaction carried out between the parties who have a special relationship must be within the price or profit range in the transaction carried out between the parties who do not have a special relationship as a comparison as explained in Article 1 number 5 of PMK No. Per-32/PJ/2011 that: Article 1 number 5 of PMK No. Per-32/PJ/2011: “The Arm’s length principle (ALP) is a principle that regulates that if the conditions in the transaction conducted between the parties who have a Special Relationship are the same or comparable to the conditions in the transaction carried out between the parties who do not have a Special Relationship that is comparable, then the price or profit in the transaction made between the parties who have a Special Relationship must be equal to or within the the price range or profit in transactions made between parties who do not have a Special Relationship that is a comparator.” What kind of special relationship then that the parties have? A special relationship means that the parties are in a state of dependence or have attachments caused by ownership or participation of capital, control, or blood or family relationships that result in one party being able to control the other party or resulting in the other party not standing independently in carrying out business activities as explained in Article 33 paragraph (1) of Government Regulation No.55/2022 and Article 2 paragraph (2) of PMK No.172/2023 that: Article 33 paragraph (1) of Government Regulation No.55/2022: “A special relationship as referred to in Article 32 paragraph (3) is a state of dependence or attachment of one party to another caused by: ownership or participation of capital; mastery; or blood or blood family relations, which results in one party being able to control the other or not standing independently in running a business or carrying out activities.” Article 2 paragraph (2) PMK No.172/2023: “A special relationship as referred to in paragraph (1) is a state of dependence or attachment of one party to another caused by: ownership or participation of capital; mastery; or claret or blood family relationship.” Then what kind of transaction requires ALP? Transactions that require ALP are transactions that are affected by a special relationship as explained in Article 4 paragraph (6) of PMK No.172/2023 that: Article 4 paragraph (6) PMK No.172/2023: “Transactions Affected by Certain Special Relationships as referred to in paragraph (5) include: service transactions; transactions related to the use or right to use intangible property; financial transactions related to loans; other financial transactions; property transfer transactions; business restructuring; and cost contribution agreement.“ The purpose of the ALP is to determine a reasonable transfer price when there is a transaction that is affected by the existence of a special relationship and its application is carried out by comparing the conditions and indicators of transaction prices affected by the special relationship with the conditions and price indicators of the same or comparable independent transaction as explained in Article 3 paragraph (2) and paragraph (3) of PMK No.172/2023 that: Article 3 paragraph (2) PMK No.172/2023: “The principles of Fairness and Business Practices as referred to in paragraph (1) are applied to determine a reasonable Transfer Price.” Article 3 paragraph (3) PMK No.172/2023: “The principle of Fairness and Business Practices as referred to in paragraph (2) is applied by comparing the conditions and price indicators of Transactions Affected by Special Relationships with the conditions and price indicators of the same or comparable Independent Transactions.” Therefore, it is necessary to know the stages of implementing ALP before making transactions that are affected by special relationships as explained in Article 4 paragraph (1) and paragraph (4) of PMK No.172/2023 that: Article 4 paragraph (1) PMK No.172/2023: “The application of the Principles of Fairness and Business Practices as referred to in Article 3 paragraph (3) must be carried out: based on the actual circumstances; at the time of the Transfer Pricing and/or at

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A.M | Oktarina Counselor at Law is one of the law firms participating in the International Conference “The Future of ADR In Asia- The Collaborative Approach” at Sunway Hotel, Phnom Penh Cambodia

Leave a Comment / Domestic Reference, International Update, News & Legal Update / Kamal

A.M | Oktarina Counselor at Law is one of the law firms participating in the International Conference “The Future of ADR In Asia- The Collaborative Approach” at Sunway Hotel, Phnom Penh Cambodia International Conference “The Future of ADR In Asia- The Collaborative Approach” organized by the Collaboration between Indonesia Dispute Board (IDB) and Cambodian Centre for Mediation (CCM) on 15th May, 2024 at Sunway Hotel, Phnom Penh, Cambodia, attended by dispute resolution experts, Indonesian Supreme Court Judges, Lawyers, Businessmen, and Academics from ASEAN countries, including Cambodia, Indonesia, Singapore, Vietnam, and Australia. One of them who participated was Poppy Putri Hidayani, S.H., LL.M., CPM, Mediator who is also an Internship Associates at A.M | Oktarina Counselor at Law. The purpose of this international conference is to give a message to professional practitioners of dispute resolution outside the court to better understand the process as well. At the same time through this conference, the organizers want to convey a message to practitioners of out-of-court dispute resolution that in the current era, out-of-court disputes are not for resolving it’s not just for family disputes even the international community has now reached a stage where they can use out-of-court dispute resolution mechanisms to resolve international trade disputes or also cross-border disputs. President of the Indonesian Dispute Council (DSI) Prof. Sabela Gayo, S.H., M.H., Ph.D., said, “The Indonesian Dispute Council today has implemented a historic agenda of holding an International Conference on Alternative Dispute Resolution in Asia in the future with the theme Collaborative Approach,” The event is certainly not only a form of cooperation between the Indonesian Dispute Council (DSI) and the Cambodian Mediation Center (CCM), but there will also be more opportunities for Mediators from both countries to exchange knowledge and experience in carrying out their profession as Professional Mediators. For more information, please contact: partner@amoktarina.net pasaribu@amoktarina.net 0817779122

Procedures Of Application For And Issuance Of Transportation Business License For BBG (CNG), LPG, LNG

Domestic Reference, International Update, News & Legal Update / Kamal

By AMO Lawyer in conjunction with the Indonesia Directorate General of Oil and Gas Procedures for Obtaining Temporary Business License 1. Business Entity should submit an application for Business License to the Minister of Energy and Mineral Resources through the Director General of Oil and Gas by enclosing the documents specified in the administrative and technical requirements. The application will be further processed upon completion and fulfillment of the specified administrative and technical requirements. All application documents will be returned if the administrative and technical requirements are not completed. The Business Entity may resubmit application upon completion of all required documents. 2. The completed administrative and technical documents submitted by the Business Entity will be assessed and evaluated by the Directorate General of Oil and Gas. 3. For clarification of administrative and technical data and company’s performance, the Business Entity should conduct a presentation. 4. Site visit will be conducted to ensure the conformity of the administrative data with the information of the Business Entity’s plan. 5. The Directorate General of Oil and Gas will examine and evaluate the administrative and technical data for approval/refusal of the Temporary Business License. 6. The Director General of Oil and Gas on behalf of the Minister of Energy and Mineral Resources will issue the Temporary Business License with effective period of maximally 3 (three) years with regard to the approved application for Business License. Procedures for Obtaining Business License 1. Business Entity shall complete the documents specified in the requirements for issuance of Business License. 2. Business Entity shall submit an application for Business License. 3. The Directorate General of Oil and Gas will examine and evaluate the administrative and technical data for approval/refusal of Business License. 4. The Director General of Oil and Gas on behalf of the Minister of Energy and Mineral Resources will issue the Business License with effective period of maximally 20 (twenty) years with regard to the approved application for Business License. Service Standard In order to provide excellent service to Business Entities, the service process will be completed within 10 working days upon fulfillment of all requirements and accurate completion of all required documents. TRANSPORTATION BUSINESS LICENSE Transportation Business License for Gas Fuel (CNG), LNG and LPG A. TEMPORARY BUSINESS LICENSE 1. Administrative Requirements: a. The Company’s Deed of Incorporation and its amendment that have been approved by the competent authority. b. Company Profile. c. Company Tax Registration Number (NPWP). d. Certificate of Company Registration (TDP). e. Certificate of Business Domicile. f. A written declaration with sufficient stamp duty regarding the company’s commitment to operational safety, occupational health, environmental management and local people development. g. A written declaration with sufficient stamp duty regarding the company’s commitment to complying with the prevailing laws and regulations. h. Principle Approval from the Local Government with regard to location for the construction of facilities and infrastructure. i. A written declaration with sufficient stamp duty regarding the company’s willingness to accept the site visit made by the staff of the Directorate General of Oil and Gas. 2. Technical Requirements: a. Preliminary Feasibility Study. b. Funding guarantee arrangement or any other funding guarantee; c. Waste Management Plan; d. Environmental Study Plan; e. Plan regarding type, quantity, capacity and operating area of transportation facility including the technology to be used. f. Plan regarding product, standard and quality of product to be transported. g. Relevant Agency’s Recommendation. Land Ministry of Transportation ● Motor Vehicle Inspection (KIR) Book/Periodic Inspection Book ● Copy of Vehicle’s Identification Number (STNK) Directorate of Metrology, Directorate General of Domestic Trade ● Certificate of Measuring Device Calibration Sea Directorate General of Sea Transportation, Ministry of Transportation ● SIUPAL (Sea Shipping Business License) ● Vessel Registration Card ● Hull Classification Certificate ● International Oil Pollution Prevention Certificate ● Certificate of Seaworthiness ● Nautical Certificate of Registry/Ship Flag Certificate of Registry ● ISM Code (Document of Compliance and Safety Management Certificate) ● Route Plan (RPT) ● Certificate of Equipment ● Certificate of Machinery ● Certificate of Fitness for LPG/LNG Directorate of Metrology, Directorate General of Domestic Trade ● Certificate of Measuring Device Calibration 3. Obligations of the business entity: a. Within 2 years upon issuance of the Temporary Transportation Business License, the Business Entity shall execute: ● Head of Financial Agreement ● Facility Procurement Agreement Extension may be granted for maximally 1 (one) year. The Temporary Business License shall lawfully expire if within the specified period the Business Entity fails to fully perform the aforesaid obligations. b. Submit report in writing to the Minister of Energy and Mineral Resources through the Director General of Oil and Gas regarding the progress in the performance of the obligations as referred to in letter a once every 1 (one) month. c. Complete the procurement of the Transportation facilities and infrastructure within 3 (three) years and such period may be extended for maximally 2 (two) years if the facility procurement process has reached 60% completion. The principle approval shall lawfully terminate if within the specified period the Business Entity fails to complete the procurement of the required Transportation facility and infrastructure. d. Submit a report to the Minister of Energy and Mineral Resources through the Director General of Oil and Gas regarding the progress in the procurement of the Transportation facility and infrastructure as referred to in letter c above once every 1 (one) month. e. Submit an application for Transportation business license to the Minister of Energy and Mineral Resources through the Director General of Oil and Gas upon completion of all obligations under the Temporary Business License. 4. Sanctions Notwithstanding the provision of Article 1266 of the Indonesian Civil Code, the Temporary Transportation Business License for Gas Fuel (CNG), LNG and LPG may be revoked and rendered null and void if: a. the Business Entity violates any of the prevailing statutory regulations. b. the Business Entity fails to fulfill its obligations and the provisions set out in the Temporary Transportation Business License for Gas Fuel (BBG/CNG), LNG, LPG. B. BUSINESS LICENSE 1. Administrative Requirements:

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