News & Legal Update Archives

Immigration Regulations on the Deportation of Overstay Foreigners

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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BREAKING GROUND IN ARBITRATION: AM OKTARINA’S KEY ROLE IN FCC CASE AA4718

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

BREAKING GROUND IN ARBITRATION: AM OKTARINA’S KEY ROLE IN FCC CASE AA4718 Contributor: Ricko Anas Extrada, S.H. Muhammad Ardin Ardiansyah, S.H. Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.LM. (Adv). Aflah Abdurrahim, S.H. Image Sources: https://pin.it/2O3fZnoeI A. Background AM Oktarina Counsellors At Law Secures Significant Victory in International Arbitration under the Federation of Cocoa Commerce (FCC) in London Kemang Point, 3rd floor, Unit 3-02 Jl. Kemang Raya No. 03, South Jakarta. Jakarta 12720 Phone: 021-22716290 www.amoktarina.net 2 AM Oktarina Counsellors At Law has successfully secured a significant victory in an international arbitration dispute under the Federation of Cocoa Commerce (FCC) in London. The case, identified as AA4718, revolved around the interpretation of contractual clauses related to the choice of arbitration forum, the fulfillment of contractual obligations, and arbitration jurisdiction under international legal principles. In this matter, AM Oktarina represented its client, an Indonesian company, against claims brought by the buyer (claimant) in an international cocoa trade transaction. This achievement not only highlights AM Oktarina’s legal expertise but also reinforces legal certainty in resolving disputes through international arbitration mechanisms. The dispute arose from an international cocoa sale transaction where the parties agreed to refer disputes to FCC arbitration, as stated in the contract clause: “The parties agreed that any issues to be resolved, arising out of the contract, will be referred to Arbitration under the prevailing rules of the Federation of Cocoa Commerce Limited, London.” The claimant alleged that the respondent (AM Oktarina’s client) had breached the contract; however, the claim was filed without adhering to the FCC’s procedural rules, such as the requirement to provide a formal written notice declaring the respondent in default. Through comprehensive legal arguments, AM Oktarina successfully persuaded the arbitration tribunal that the claimant’s claims were legally unfounded and violated the formal procedures stipulated in the FCC Arbitration and Appeal Rules. Consequently, the tribunal ruled in favor of the respondent, declaring that no breach of contract had occurred and releasing the respondent from all claims. Summary of Case AA4718 Chronology at the FCC 1. Contract Formation: Kemang Point, 3rd floor, Unit 3-02 Jl. Kemang Raya No. 03, South Jakarta. Jakarta 12720 Phone: 021-22716290 www.amoktarina.net 3 On January 27, 2023, the claimant (Kamala Consumer Care PVT Ltd.) and the respondent (PT Surya Kakao Internasional) signed a purchase agreement for 160 MT of Natural Cocoa Butter at USD 3,700 per MT, totaling USD 592,000. The agreed delivery schedule was from March to August 31, 2023 (FOB Jakarta). Payment terms included a 30% deposit and 70% upon scanning the shipping documents. 2. Delivery Schedule Breach: Out of the eight scheduled shipments, only three were completed before the deadline (August 31, 2023). The fourth shipment was made on September 10, 2023, exceeding the agreed timeline. 3. Contract Termination: On April 24, 2024, the respondent declared its inability to continue the contract due to a sharp increase in raw material prices (cocoa beans). The respondent claimed that the price of Grade “A” Natural Cocoa Butter had soared to USD 40,000 per MT, far above the initial contract price. 4. Arbitration Claim Submission: On June 29, 2024, the claimant submitted an arbitration claim to the FCC, accusing the respondent of failing to deliver the remaining 80 MT and seeking damages for financial and reputational losses. 5. Respondent’s Defense: Represented by AM Oktarina Counsellors At Law, the respondent argued that the claimant’s submission exceeded the 56-day deadline as stipulated by the FCC Arbitration Rules. The respondent also rejected the claimant’s demand for USD 2,904,000 in damages, citing unrealistic and inaccurate calculations. 6. Arbitration Proceedings: Kemang Point, 3rd floor, Unit 3-02 Jl. Kemang Raya No. 03, South Jakarta. Jakarta 12720 Phone: 021-22716290 www.amoktarina.net 4 The FCC Tribunal reviewed submissions and arguments from both parties. It concluded that the claimant had failed to formally declare the respondent in default in compliance with FCC Rules. 7. Final Decision: The tribunal ruled that while the respondent wrongfully terminated the contract on April 24, 2024, the claimant had also failed to meet procedural obligations. The tribunal ordered the contract to remain enforceable for the remaining deliveries but split the arbitration costs evenly, with each party bearing their legal expenses. This case exemplifies the importance of adhering to procedural rules in arbitration and underscores AM Oktarina Counsellors At Law’s ability to navigate complex international legal disputes effectively. Legal Basis 1. FCC Arbitration and Appeal Rules (Applicable to contracts concluded on or after 0 July 2021) [“FCC Arbitration and Appeal Rules”] 2. Contract Rules for Cocoa Beans (Applicable to contracts concluded on or after 01 March 2023) [“CP4 Rules”) 3. Arbitration Act 1996 Disputing parties in international transactions generally predetermine the forum and/or applicable law to be used when disputes arise. Determining such formalities is critical since the parties often come from different countries with distinct legal systems. Therefore, choice of forum and choice of law are essential for contracting parties when determining which international arbitration forum will be used to resolve future disputes. Kemang Point, 3rd floor, Unit 3-02 Jl. Kemang Raya No. 03, South Jakarta. Jakarta 12720 Phone: 021-22716290 www.amoktarina.net 5 When parties have predetermined their preferred international arbitration forum for resolving disputes, they must clearly and explicitly state this choice in a written agreement prior to any dispute. This ensures legal certainty for the contracting parties and provides the arbitral tribunal with the necessary legal standing or authority to adjudicate the dispute. In the case experienced by our client, the arbitration was conducted under FCC Arbitration, where the parties had explicitly stated in their contract: “The parties agreed that any issues to be resolved, arising out of the contract, will be referred to Arbitration under the prevailing rules of the Federation of Cocoa Commerce Limited, London.” Additionally, both parties must agree and declare that they are aware of, familiar with, and willing to comply with the agreement incorporating the FCC Arbitration Rules. In other words, one party must not exploit a dominant position to the detriment of the other party’s understanding of the FCC Arbitration or other

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PENGGABUNGAN, PELEBURAN ATAU PENGAMBILALIHAN SAHAM DAN/ATAU ASET DARI SUDUT PANDANG HUKUM PERSAINGAN USAHA DAN PERAN KPPU

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

Contributor: Moh. Ilham Makhal, S.H. Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.LM. (Adv). Aflah Abdurrahim, S.H. Sumber Gambar: https://www.freepik.com/free-vector/hand-drawn-international-trade_20289224.htm#fromView=search&page=1&position=22&uuid=5f9155ba-2c8a-4e84-95b1-7a4cf8a97540 Background Akhir-akhir ini praktik pasar modal di Indoesia semakin marak dan berdampak kepada banyaknya transaksi yang dilakukan oleh para pelaku usaha (Perusahaan). Salah satunya adalah transaksi yang dilakukan oleh Perusahaan seperti Penggabungan, Peleburan atau Pengambilalihan Saham dan/atau Aset atau yang lebih dikenal dengan Merger and Akuisisi yang dilakukan oleh pelaku usaha merupakan suatu Corporate Action yang dilakukan oleh satu badan hukum atau lebih untuk menggabungkan diri dengan badan usaha lain, meleburkan diri dengan cara mendirikan satu bandan usaha baru, atau mengambilalih saham dan/atau aset yang mengakibatkan beralihnya pengendali Perusahaan. Namun bagaimana regulasi di Indonesia yang mengatur terkait pelaksanaaan Penggabungan, Peleburan atau Pengambilalihan Saham dan/atau Aset atau yang lebih dikenal dengan Merger and Akuisisi dari suduh pandang persaingan usaha? Apakah dampak yang akan terjadi setelah dilakukan Penggabungan, Peleburan atau Pengambilalihan Saham dan/atau Aset atau yang lebih dikenal dengan Merger and Akuisisi tersebut dan bagaimana pengawasannya? Mari kita simak lebih dalam terkait peraturan dan dampak Penggabungan, Peleburan atau Pengambilalihan Saham dan/atau Aset atau yang lebih dikenal dengan Merger and Akuisisi dari sudut pandang hukum persaingan usaha di Indonesia. Legal Basis Undang-Undang Nomor 5 Tahun 1999 tentang Larangan Praktik Monopoli dan Persaingan Usaha Tidak Sehat (“UU No. 5/1999”). Peraturan Pemerintah Nomor 57 Tahun 2010 tentang Penggabungan atau Peleburan Badan Usaha dan Pengambilalihan Saham Perusahaan yang Dapat Mengakibatkan Terjadinya Praktik Monopoli dan Persaingan Usaha Tidak Sehat (“PP No. 57/2010”) Peraturan Komisi Pengawas Persaingan Usaha Nomor 3 Tahun 2023 tentang Penilaian Terhadap Penggabungan, Peleburan, atau Pengambilalihan Saham dan/atau Aset Yang Dapat Mengakibatkan Terjadinya Praktik Monopoli dan/atau Persaingan Usaha Tidak Sehat (“PerKPPU No. 3/2023”) Secara definisi hukum, menurut Pasal 1 PerKPPU No. 3/2023 menjelaskan tentang pengertian Penggabungan, Peleburan atau Pengambilalihan Saham dan/atau Aset sebagai berikut: “Penggabungan adalah perbuatan hukum yang dilakukan oleh satu badan usaha atau lebih untuk menggabungkan diri dengan badan usaha lain yang telah ada yang mengakibatkan aktiva dan pasiva dari badan usaha yang menggabungkan diri beralih karena hukum kepada badan usaha yang menerima penggabungan dan selanjutnya status badan usaha yang menggabungkan diri berakhir karena hukum”; “Peleburan adalah perbuatan hukum yang dilakukan oleh dua badan usaha atau lebih untuk meleburkan diri dengan cara mendirikan satu badan usaha baru yang karena hukum memperoleh aktiva dan pasiva dari badan usaha yang meleburkan diri dan status badan usaha yang meleburkan diri berakhir karena hukum”; “Pengambilalihan adalah perbuatan hukum yang dilakukan oleh pelaku usaha untuk mengambilalih saham dan/atau aset yang mengakibatkan beralihnya pengendalian perusahaan dan/atau aset tersebut”. Kegiatan Penggabungan, Peleburan atau Pengambilalihan Saham dan/atau Aset dapat mengakibatkan terjadinya penguasaan pasar oleh satu atau lebih badan usaha yang hal ini dapat mengakibatkan terjadinya Praktik Monopoli dan/atau Persaingan Usaha Tidak Sehat. Komisi Pengawas Persaingan Usaha (KPPU) yang merupakan otoritas yang bertugas mengawasi persaingan usaha di Indonesia melalui Undang-Undang Nomor 5 Tahun 1999 tentang Larangan Praktik Monopoli dan Persaingan usaha Tidak Sehat (“UU No. 5/1999”) dan Peraturan Komisi Pengawas Persaingan Usaha Nomor 3 Tahun 2023 tentang Penilaian Terhadap Penggabungan, Peleburan, atau Pengambilalihan Saham dan/atau Aset Yang Dapat Mengakibatkan Terjadinya Praktik Monopoli dan/atau Persaingan Usaha Tidak Sehat (“PerKPPU No. 3/2023”) mengatur tentang Penggabungan, Peleburan atau Pengambilalihan Saham dan/atau Aset. Penggabungan, Peleburan atau Pengambilalihan Saham dan/atau Aset diatur di Pasal 29 UU No. 5/1999 yang mengatur sebagai berikut: “Ayat Penggabungan atau peleburan badan usaha, atau pengambilalihan saham sebagaimana dimaksud dalam Pasal 28 yang berakibat nilai aset dan atau nilai penjualannya melebihi jumlah tertentu, wajib diberitahukan kepada Komisi, selambat-lambatnya 30 (tiga puluh) hari sejak tanggal penggabungan, peleburan, atau pengambilalihan tersebut. Ketentuan tentang penetapan nilai aset dan atau nilai penjualan serta tata cara pemberitahuan sebagaimana dimaksud dalam ayat (1) diatur dalam Peraturan Pemerintah.” Pelaku usaha yang melakukan Penggabungan, Peleburan atau Pengambilalihan Saham dan/atau Aset wajib melakukan notifikasi kepada KPPU. Notifikasi adalah pemberitahuan secara tertulis kepada KPPU yang wajib dilakukan oleh pelaku usaha sejak Penggabungan, Peleburan, atau Pengambilalihan saham dan/atau aset berlaku efektif secara yuridis. Pelaku usaha yang telah melakukan Penggabungan, Peleburan atau Pengambilalihan Saham dan/atau Aset wajib melakukan Notifikasi kepada KPPU paling lama 30 (tiga puluh) hari sejak tanggal Penggabungan, Peleburan atau Pengambilalihan Saham dan/atau Aset berlaku efektif secara yuridis. Ketentuan wajib Notifikasi ini sesuai dengan PerKPPU No. 3/2023 terdiri atas: Memenuhi batasan nilai asset dan/atau nilai saham penjualan; Terjadi perubahan pengendali; Bukan transaksi antar pelaku usaha terafiliasi; dan Transaksi antar pelaku usaha yang memiliki asset dan/atau penjualan di Indonesia. Selain ketentuan wajib Notifikasi sebagaimana yang telah diuraikan diatas, pelaku usaha wajib menyampaikan Notifikasi kepada KPPU dalam hal Pengambilan Aset mengakibatkan peningkatan kemampuan penguasaan atas suatu pasar tertentu oleh Pelaku Usaha yang melakukan Pengambilan Aset dan tidak termasuk transaksi Pengambilalihan Aset yang dikecualikan. Sehubungan dengan batasan nilai Aset dan/atau nilai penjualan (Thresshold) dari hasil Penggabungan, Peleburan, atau Pengambilalihan saham dan/atau aset yang wajib dilakukan oleh pelaku usaha untuk Notifikasi ke KPPU adalah: Nilai aset pelaku usaha hasil Penggabungan, Peleburan, atau Pengambilalihan Saham dan/atau Aset melebihi Rp2.500.000.000.000,00 (dua triliun lima ratus miliar rupiah); atau Nilai Penjualan Pelaku Usaha hasil Penggabungan, Peleburan, atau Pengambilalihan Saham dan/atau Aset melebihi Rp5.000.000.000.000,00 (lima triliun rupiah). Untuk batasan nilai aset dan/atau nilai penjualan dalam hal transaksi dilakukan oleh para Pelaku Usaha yang bergerak di bidang perbankan jika nilai aset Pelaku Usaha hasil Penggabungan, Peleburan, atau Pengambilalihan saham dan/atau asset melebihi Rp20.000.000.000.000,00 (dua puluh triliun rupiah). Pelaksanaan Penggabungan, Peleburan, atau Pengambilalihan saham dan/atau asset yang terjadi di Indonesia diatur dalam Peraturan Komisi Pengawas Persaingan Usaha Nomor 3 Tahun 2023 tentang Penilaian Terhadap Penggabungan, Peleburan, atau Pengambilalihan Saham dan/atau Aset Yang Dapat Mengakibatkan Terjadinya Praktik Monopoli dan/atau Persaingan Usaha Tidak Sehat (“PerKPPU No. 3/2023”) Jo. Peraturan Pemerintah Nomor 57 Tahun 2010 tentang Penggabungan atau Peleburan Badan Usaha dan Pengambilalihan Saham Perusahaan Yang Dapat Mengakibatkan Terjadinya Praktik Monopoli dan Persaingan Usaha Tidak Sehat (“PP No. 57/2010”). Sanksi terhadap pelaku usaha yang tidak/terlambat melakukan Notifikasi ke KPPU sesuai dengan batas paling lama yaitu 30 (tiga puluh) hari sejak tanggal Penggabungan, Peleburan atau Pengambilalihan Aset/Saham berlaku efektif secara yuridis, yang mana sanksi tersebut diatur dalam Pasal 6 PP No. 57/2010 adalah

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Analysis of the Interpretation of Pre-Trial Decision Number 10/Pid.Pra/2024/Bandung District Court Regarding the Revocation of Pegi Setiawan’s Suspect Status

Domestic Reference, News & Legal Update / Kamalisten

Image Source : https://www.freepik.com/premium-vector/bad-policeman-officer-cop-character-arrestinterrogatessuspect_12861406.htm?epik=dj0yJnU9UUhXMEVwV2RTR1ZzOHo2Tmt3andsLXhITmFHa191WmcmcD0wJm49MHB5QXgxdTRUZkZFTTJweU5BcGM1ZyZ0PUFBQUFBR2FqV3pZ From: A.M Oktarina Counsellors at Law Contributors: Pramudya Yudhatam, S.H., Muhammad Ardin Ardiansyah,S.H. Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.L.M (Adv). A. Background A pre-trial decision is a legal remedy that can be filed by a suspect, their family, or their legal representative in the law enforcement process in Indonesia. The purpose of a pre-trial is to examine the legality of an arrest, detention, termination of investigation or prosecution, and to seek compensation and rehabilitation for someone who feels their rights have been violated during the legal process. In pre-trial case number 10/Pid.Pra/2024/Pengadilan Negeri Bandung, with the respondent Pegi Setiawan, there are several legal aspects that need to be analyzed to understand the decision moreover its became a trending topic in the mass media as reported by the BBC with the title ” Pegi Setiawan bebas, hakim menyatakan penetapan tersangka dalam kasus Vina ‘tidak sah dan batal demi hukum – Polisi diperintahkan pulihkan nama baik Pegi” which was published on July 2, 2024 (as the link attached) This raises the subsequent question: how should this decision be interpreted? B. Legal Basis 1. The 1945 Constitution of the Republic of Indonesia (“UUD NRI 1945”) 2. Law Number 8 of 1981 on the Criminal Procedure Code (“KUHAP”) 3. Supreme Court Regulation Number 4 of 2016 on the Prohibition of Reconsideration of Pre-Trial Decisions. (“Perma 4/2016“) In the pre-trial decision number 10/Pid.Pra/2024/Pengadilan Negeri Bandung, the judge ruled that the arrest and detention of Pegi Setiawan were legally invalid. This decision was based on several legal considerations, including: Article 1 point 10 of KUHAP: “Pre-trial is the authority of the district court to examine and decide in the manner regulated in this law, concerning: a. the legality or illegality of an arrest or detention upon petition of the suspect or their family or another party on behalf of the suspect; b. the legality or illegality of the termination of an investigation or prosecution upon petition for the sake of upholding law and justice; c. a petition for compensation or rehabilitation by a suspect or their family or another party on their behalf whose case is not submitted to the court.” Article 2 paragraph (3) of Perma 4/2016: “(3) A pre-trial decision that grants a petition regarding the illegality of the suspect’s designation does not nullify the Investigator’s authority to designate the person as a suspect again after meeting at least two new valid pieces of evidence, different from the previous evidence related to the matter of the case.” In the pre-trial case number 10/Pid.Pra/2024/Pengadilan Negeri Bandung, Pegi Setiawan filed a petition to revoke his suspect status designated by the investigator. The Bandung District Court decided to grant the petition with the following legal considerations: 1. Compliance with the Legal Procedure for Suspect Designation The court found that the designation of Pegi Setiawan as a suspect did not comply with the prevailing legal procedures. Based on Article 77 of KUHAP, the designation of a suspect must be based on sufficient preliminary evidence. In this case, the investigator failed to present sufficient preliminary evidence to designate Pegi Setiawan as a suspect. 2. Human Rights of the Suspect The decision also considered the human rights of the suspect as stipulated in Article 28D paragraph (1) of UUD NRI 1945, which states that every person has the right to recognition, guarantees, protection, and fair legal certainty as well as equal treatment before the law. The designation of a suspect without sufficient evidence was deemed to violate these human rights. 3. Upholding the Principle of Legality The court emphasized the importance of the principle of legality in the law enforcement process. Investigators are required to comply with the provisions of the prevailing laws at every stage of the investigation. In this case, the investigator did not adhere to the legal procedures outlined in KUHAP, rendering the suspect designation invalid. C. Conclusion The pre-trial decision number 10/Pid.Pra/2024/Pengadilan Negeri Bandung, which revoked the suspect status of Pegi Setiawan, provides an important lesson on fair and lawful law enforcement. This decision affirms that the designation of a suspect must be based on sufficient preliminary evidence and comply with the prevailing legal provisions. The human rights of suspects must be protected, and the principle of legality must be upheld at every stage of the law enforcement process. The interpretation of this decision provides guidance for law enforcement officials to always act in accordance with existing regulations, ensuring legal certainty and fair treatment for all citizens. References: • https://www.bbc.com/indonesia/articles/c97dl9qx4glo For further information, please call: – partner@amoktarina.co – n.pasaribu@amoktarina.co – 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 / Kamalisten

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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Analysis of Regulations on the Birth of Children of Indonesian Descent Outside of Marriage Occurring Outside Indonesian Territory

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

Image Source : https://www.freepik.com/free-vector/wedding-concept-illustration_7171680.htm#query=marriage&position=29&from_view=search&track=sph&uuid=80302d1d-1c38-4c2d-9c47-fba7fafd3183 From: A.M Oktarina Counsellors at Law Contributors: Pramudya Yudhatama, S.H., Khaifa Muna Noer Uh’Dina, S.H., Raysha Alfira, S.H. Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.L.M (Adv). Ricki Rachmad Aulia Nasution, S.H. A. Background Marriage is an important and sacred event for all citizens. This is because through marriage, an individual will cause a relationship bound by rights and obligations to the marriage. Of course, as the purpose of marriage, it will produce descendants. Today, however, there are several status classifications of these “descendants”, or in general they can be referred to as children. For the status of children themselves, there is a classification, namely legitimate children born from marriages that are religiously recognized and legally valid, and children born outside marriage religiously and legally. Seeing the increasingly dynamic development, of course this in practice can happen to an Indonesian Citizen (“WNI”) and Foreign Citizen (“WNA”), who can become a child born out of wedlock and born outside the territory of Indonesia. On this matter, the next question becomes, what is the legal certainty and citizenship for the child? B. Legal Basis 1. Law Number 1 of 1974 concerning Marriage j.o Law Number 16 of 2019 concerning Amendments to Law Number 1 of 1974 concerning Marriage. (“Law No.16/2019”) 2. Law Number 35 of 2014 concerning Amendments to Law Number 23 of 2002 concerning Child Protection jo. Law Number 1 of 2023 concerning the Criminal Code. (“Law No. 35/2014”) 3. Law Number 12 of 2006 concerning Indonesian Citizenship. (“Law No. 12/2006”) 4. Law Number 23 of 2006 concerning Population Administration jo. Law Number 24 of 2013 concerning Amendments to Law Number 23 of 2006 concerning Population Administration. (“Law No.23/2006”) 5. Government Regulation Number 40 of 2023 concerning the Fourth Amendment to Government Regulation Number 31 of 2013 concerning Implementing Regulations of Law Number 6 of 2011 concerning Immigration. (“Government Regulation No.40/2023”). 6. Decision of the Constitutional Court of the Republic of Indonesia Number 46/PUU-VIII/2010 (“Constitutional Court Decision No.46/2010”). In principle, the birth of a child in a marriage is an inseparable part of human survival to continue the descendants produced by legal or unmarried couples. We can see by definition in Article 42 and Article 43 paragraph (1) of Law No.1/1974 explains that: Article 42 of Law No.1/1974: “A legitimate child is a child born in or as a result of a legal marriage.” Article 43 paragraph (1) of Law No.1/1974 jo Constitutional Court Decision No.46/2010: “A child born out of wedlock has a civil relationship with his mother and his mother’s family and with a man as his father which can be proven based on science and technology and/or other evidence according to law to have a blood relationship, including a civil relationship with his father’s family” Based on the two provisions above, it should be noted, that the civil relationship of children outside marriage, only to their mothers. But what if we look at the context from the citizenship side? Furthermore, before looking at the citizenship aspect, it is necessary to know that for children’s rights first, we can refer to the provisions of Article 1 paragraph 12 of Law No. 35/2014, which states that: “Children’s rights are part of human rights that must be guaranteed, protected, and fulfilled by parents, families, communities, states, governments, and local governments.”. Every child as an individual has human rights that must be guaranteed and recognized, so that with the differences in the status of children previously described, there will be no distinction between the rights of a child. Basically, children born outside the legal marriage of WNI and WNA couples, then the child is an WNI because there are provisions in citizenship regulations. This has been strengthened by the provisions in Article 4 letter h, and Article 5 paragraph (1) of Law No.12/2006 which states: Article 4 letter h of Law No.12/2006: “A child born out of legal wedlock to a Foreign Citizen mother who is recognized by an Indonesian father as his child and the recognition is made before the child turns 18 (eighteen) years old or unmarried;” Article 5 paragraph (1) of Law No.12/2006 “Children of Indonesian citizens born outside of legal marriage, not yet 18 (eighteen) years old and unmarried legally recognized by their foreign fathers are still recognized as Indonesian citizens.” Looking at the provisions above, it can be seen that children born outside marriage between WNI and WNA, either by lineage through father, or mother are still recognized as WNI. After knowing his citizenship status, the next step is administrative registration related to the child’s documents. That every child born outside the territory of Indonesia must be registered by the Indonesian representative and reported to the local civil registry agency. Even though the child was born outside the territory of Indonesia, the child born still receives the same registration treatment in administrative matters, as explained in Article 29 of Law No.23/2006 which reads: (1) “The birth of an Indonesian citizen outside the territory of the Republic of Indonesia must be recorded at the competent agency in the local country and reported to the Representative of the Republic of Indonesia. (2) If the local country as referred to in paragraph (1) does not provide birth registration for foreigners, the registration shall be carried out at the local Representative of the Republic of Indonesia. (3) The Representative of the Republic of Indonesia as referred to in paragraph (2) records the event of birth in the Birth Certificate Register and issues a Birth Certificate Citation. (4) Birth Registration as referred to in paragraph (1) and paragraph (2) shall be reported to the Implementing Agency no later than 30 (thirty) days after the Indonesian citizen concerned returns to Indonesia” As required by regulations, later after the child turns 18 (eighteen) years old, the child must choose his nationality. This is in accordance with Article 6 paragraph 1 of Law No. 12/2006. This must be done considering that Indonesia does not recognize the concept of dual citizenship in

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Regulatory Analysis of the Position of Supreme Court Legal Products in the Hierarchy of Laws and Regulations

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

Image Source: https://www.freepik.com/free-vector/judges-court-hearing-illustration-courtroom-interior-background_3264805.htm#fromView=search&page=2&position=2&uuid=65cb1fa8-87a9-4d87-b5e2-7a40dd13cb5c 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 The Supreme Court (“MA”) is an institution that functions and is authorized as a judicial institution. This means that the Supreme Court has independent power as an actor of judicial power to uphold law and justice in Indonesia through the administration of justice. However, there are often circumstances in which the Supreme Court must regulate several things. Thus, the authority of the Supreme Court is not limited only to its function as a judicial institution because the Supreme Court also has the authority to make regulations. Therefore, the Supreme Court is also given the authority to regulate which can be seen in the legal products issued by it. So, what is the position of Supreme Court legal products in the hierarchy of laws and regulations? Then, do the Supreme Court legal products have legal force? Legal Base Constitution of 1945; (“1945 Constitution“) Law Number 14 of 1985 concerning the Supreme Court Law Number 5 of 2004 concerning Amendments to Law Number 14 of 1985 concerning the Supreme Court jo. Law Number 3 of 2009 concerning the Second Amendment to Law Number 14 of 1985 concerning the Supreme Court; (“Law No.14/1985“) Law Number 12 of 2011 concerning the Establishment of Laws and Regulations Law Number 15 of 2019 concerning Amendments to Law Number 12 of 2011 concerning the Establishment of Laws and Regulations jo. Law Number 13 of 2022 concerning the Second Amendment to Law Number 12 of 2011 concerning the Establishment of Laws and Regulations. (“Law No.12/2011“) In carrying out its duties and functions, the Supreme Court is given the authority to adjudicate at the cassation level, examine laws and regulations, and other authorities granted by law as stated in Article 24A paragraph (1) of the 1945 Constitution that: Article 24A paragraph (1) of the 1945 Constitution: “The Supreme Court has the authority to adjudicate at the cassation level, examine laws and regulations under the law against the law, and has other powers granted by law.” The other authority of the Supreme Court includes one of the regulatory authorities. However, the Supreme Court can only issue regulations as a supplement when there are legal deficiencies or vacancies in a matter even though these matters have not been adequately regulated in Law Number 14 of 1985 concerning the Supreme Court. In addition, the regulations issued by the Supreme Court are also distinguished from regulations prepared by the framer of the Law and will not interfere and exceed the regulation on the rights and obligations of citizens in general and also do not regulate the nature, strength, means of proof and assessment as well as the distribution of the burden of proof as explained in Article 79 of Law No.14/1985 and Explanation of Article 79 of Law No.14/1985 that: Article 79 of Law No.14/1985: “The Supreme Court may further regulate matters necessary for the smooth administration of justice if there are matters that have not been adequately regulated in this Law.” Explanation of Article 79 of Law No.14/1985: “If in the course of justice there is a lack or vacuum of law in a matter, the Supreme Court has the authority to make regulations as a supplement to fill the deficiency or vacancy. With this Law, the Supreme Court has the authority to determine arrangements on how to resolve a problem that has not been or is not regulated in this Law. In this case, the regulations issued by the Supreme Court are distinguished by the regulations prepared by the framer of the Law. The administration of justice contemplated by this Act is only part of the procedural law as a whole. Thus the Supreme Court will not interfere with and exceed the regulation of the rights and duties of citizens in general nor will it regulate the nature, power, means of proof and judgment or the sharing of the burden of proof.” That way, the Supreme Court can be said to have the authority to issue legal products. Then, what legal products can be issued by the Supreme Court? There are 4 types of legal products that can be issued by the Supreme Court which include: Supreme Court Rules (“PERMA”) Supreme Court Circular (“SEMA”); Supreme Court Fatwa; and Decree of the Head Justice of the Supreme Court; Then, what is the position of the Supreme Court legal product in the hierarchy of laws and regulations? To answer this question, it is necessary to know in advance what is included in the hierarchy of laws and regulations consisting of 7 types of regulations as explained in Article 7 paragraph (1) of Law No.12/2011 that: Article 7 paragraph (1) of Law No.12/2011: “The types and hierarchy of laws and regulations consist of: Constitution of the Republic of Indonesia Year 1945; Decrees of the People’s Consultative Assembly; Government Laws/Regulations in Lieu of Law; Government Regulations; Presidential Regulation; Provincial Local Regulations; and District/City Regulations.” For the legal products issued by the Supreme Court, their existence is recognized and has binding legal force to the extent ordered by higher laws and regulations or their formation based on the authority as explained in Article 8 paragraph (1) and paragraph (2) of Law No.12/2011 that: Article 8 paragraph (1) of Law No.12/2011: “Types of laws and regulations other than those referred to in Article 7 paragraph (1) include regulations stipulated by the People’s Consultative Assembly, House of Representatives, Regional Representative Council, Supreme Court, Constitutional Court, Audit Board, Judicial Commission, Bank Indonesia, Ministers, agencies, institutions, or commissions at the same level established by Law or the Government by order of the Law, Provincial People’s Representative Council, Governor, Regency/City People’s Representative Council, Regent/Mayor, Village Head or equivalent.” Article 8 paragraph (2) of Law No.12/2011: “Laws and regulations as referred to in

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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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