International Update

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:

[vc_row][vc_column][vc_column_text]By: AMO Lawyers Contributors: Noverizky Tri Putra Pasaribu S.H LL.M (Adv)[/vc_column_text][vc_tta_tabs][vc_tta_section title=”English” tab_id=”1539672689117-39c88d08-c03e”][vc_column_text]In international business transaction, it is very common for entrepreneur to conduct the financing or loan transaction. This transaction generally is to support the entrepreneur business activity for certain sector such the construction development, company capital injection, contractor settlement payment, to secure the process of the facilities and infrastructure construction and etc. Accordingly, before the Bank may proceed with its approval for the entrepreneur financing or loan transaction, the Bank commonly proceed with its full compliance investigation covering Legal Due Diligence and Financial Due Diligence, where each of the corporate sector, license, government approval, capital current condition, debt and other loan, third party agreement, financial recapitulation, financial report and other elements shall be check very thoroughly. Specifically for the mining company, there is one specific factor that currently becomes a high level of concern or threat for the Bank related with its approval for the financing or loan transaction, respectively for the government approval to the mining company to proceed with its activity for the financing or loan transaction with the Bank. As you may aware, every entrepreneur who wishes to conduct its business in the mining sector shall require complying with the Law No 4 of 2009 concerning mineral and coal mining (“Mining Law”). At the beginning, the holder of IUP (Mining License) and IUPK (Special Mining License) shall have the obligation to conduct a report for its mining activity which regulated under Article 111 of the Mining Law, as follow “Mining Permit holders and Special Mining Permit holders must submit reports in writing periodically on activity plans and implementation of mineral and coal mining business activities to the Minister, governors, or regents/mayors within their authority”. The detail of this written report shall be governed under Government Regulation. One of the detail reference that being use for mining activity report is regulated under the Article of 101 to 105 of the Government Regulation No 23 of 2010 concerning the Implementation of the Mineral and Coal Mining Activity (“PP No 23/2010”) covering the written report for the Work and Budget Plan (Rencana Kerja dan Anggaran Biaya/”RKAB”) where Work and Budget plan shall include change of capital activity for the financing or loan transaction governed under the Ministry Regulation of Energy and Mineral Resources of Republic of Indonesia No 27 of 2013 concerning the Procedure and Determination of the Stock Divestment Price, and the Change of Capital Investment in the Mineral and Mining Coal Sector (“Permen No 27/2013”)    Under Article 15 Permen No 27/2013 stipulated that “the Change of Capital Investment only can be conducted after obtained the approval from the Ministry, Governor or Head of Region/Mayor as in accordance with its authority” and the Change of the Capital Investment shall include the following: the change of investment and financing resources; the change of the company status from Foreign Direct Investment Company (FDI) to the National Investment Company (PMDN) and vice versa; the amendment of Article of Associations; the change of the Director and Board of Commissioner; and the change of Shareholders ownership. For more detail, the regulation provided in the Article 16 of the Permen No 27/2013 stipulated that the request for the change of investment financial resources as provided before shall be conducted with the following required documents, as follow: a. Ground / reason for the change of investment and financial resources; b. Evidence of settlement for the Dead-rent for the IUP Exploration Holder, IUPK Exploration Holder, IUP Operation Production Holder, IUPK Operation Production Holder; c. Evidence of settlement for production dues consecutively for the period of the last 2 (two) years for the IUP Operation Production Holder and IUPK Operation Production Holder; d. Evidence of settlement for production dues for the IUP Exploration Holder and IUPK Exploration Holder that owned the temporary license to conducted the transporting and selling activity. And IUP Operation Production Holder specifically for processing and or refinement that harness the connatural mineral; e. Audited financial report for the last 2 (two) years by the Public Accountant; f. The Facility or Loan Agreement or Financing and credit Agreement; g. The Copy of IUP Exploration Certificate or IUPK Exploration Certificate or IUP Operation Production Certificate or IUPK Operation Production Certificate owned by the mining company registered at the General Directorate of Mining and Mineral Resources and has been declared clean and clear. Furthermore the issue is, that the legal infringement of this provision is not regulated under the Article 30 of Permen No 27/2013 concerning administration sanction. Although such sanction does not stipulated under the Permen No 27/2013, the obligation to obtain the approval from the Ministry, Governor or Head of Region/Mayor as in accordance with its authority for the change of the capital investment and financial resources shall keep binding the mining company. In practice, this issue has become a very imperative concern from the Bank, considering that to conduct the financing or loan transaction, every mining company must in the full compliance position (comply to all obligation under the prevailing law and regulation) except for other obligation that has yet to arise based on the prevailing law and regulation. Further in practice, the Bank shall request to the mining company to provide a security or guarantee in order for the Bank to have the legal immunity to proceed with its approval for the financing or loan transaction as regulated under the prevailing Indonesian Law. To understand its broader context, the mining company generally shall provide the following documents of security in the form of: Corporate guarantee and certificate; Director guarantee and certificate; Commissioner guarantee and certificate; Comfort Letter; etc.   The following security documents as abovementioned shall become the basis or ground of legal immunity for the Bank to provide the financing or loan transaction to the mining company as regulated under the prevailing law and regulation in Indonesia. Therefore, the security for such compliance can be conducted by the mining company and shall not be waived without exception as agreed