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Specialized Tribunals

Specialized Tribunals

Business Supervisory Competition Commission

The Business Supervisory Competition Commission (Komisi Pengawas Persaingan Usaha-KPPU) is established by Act Number 5 Year 1999 on the Ban on Monopolistic Practice and Unfair Trade Practices (Anti Monopoly Law) as independent body to oversee the implementation of Anti Monopoly Law and answer to the President.

The commission have the authority to initiate investigation based on incoming complaint and/or its own initiatives against alleged action of business actors which violates Anti Monopoly Law. The Commission also have quasi-judicial nature where it can make decision over the results of the investigation. Further, the Commission’s decision shall have final and binding power (art 46 (1) Anti Monopoly Law) if not asked for review. The party can request the Commission’s decision to be reviewed by the District Court (art 44 (2) Anti Monopoly Law), and the review can be appealed to the Supreme Court (art 46 (3) Anti Monopoly Law).

Article 35 of Anti Monopoly Law sets the following duties to the Commission:

  1. conducting evaluations of contracts that might cause monopolistic practices and/or unfair business competition as regulated under Articles 5 through 16

  2. conducting evaluations of business activities and/or entrepreneurs’ behavior that might cause monopolistic practices and/or unfair business competition as regulated under Articles 17 through 24;

  3. conducting evaluations if there is any abuse or not in the dominant position that might cause monopolistic practices and/or unfair business competition as regulated under Articles 25 through 28;

  4. taking actions based on the authority of the Commission as regulated under Article 36; e. providing suggestions and consideration on Government policy related to monopolistic practices and/or business competition;

  5. set up guidelines and/or publication related to this Law;

  6. providing periodic report on the work results of the Commission to the President and the House of Representative.

The Commission also have the following authorities:

  1. receiving reports from the public and/or business actors concerning allegations of monopolistic practices and/or unfair business competition;

  2. conducting investigations on allegations of any business activity and/or actions by business actors that might cause monopolistic practices and/or unfair business competition;

  3. conducting investigations and/or examination on allegation cases of monopolistic practices and/or unfair business competition reported by the public or by business actors or based on the findings by the commission as a result of its investigation;

  4. concluding the results of the investigation and/or examination whether there is any monopolistic practices and/or unfair business competition or not;

  5. summoning business actors alleged to have violated the provisions in this law;

  6. summoning and bringing witnesses, expert witnesses and anybody considered knowing of any violation to the provisions in this law;

  7. requesting assistance from the investigators to bring the business actors, witness, expert witness or anybody as referred to under Paragraph e and f of this article, who are not willing to fulfill the summon by the Commission to appear;

  8. requesting information from the Government agency with regard to the investigation and/or examination of the business actors violating provisions in this law;

  9. obtaining, investigating and/or evaluating letters, documents, or other evidence for the purpose of investigation and/or examination;

  10. deciding and determining if there is any loss or not suffered by other business actors or the public;

  11. notifying the Commission’s decision to the business actors alleged of conducting monopolistic practices and/or unfair business competition; l. imposing and administrative sanction to the entrepreneurs violating provisions in this law.

Consumer Dispute Resolution Body

The Consumer Dispute Resolution Body (Badan Penyelesaian Sengketa Konsumen-BPSK) is a quasi-judicial body for consumer dispute sitting in city/regency all over-Indonesia as stipulated in Act Number 8 Year 1999 on Consumer Protection. The Body’s main task is to review consumer dispute outside the general court, on the basis of voluntary submission of the parties. The Body consist of representatives of state apparatus, consumer and business actors or principal appointed by Minister of Trade. In the course of handling the case, the Body shall have the authority to review the accuracy of the report and responses from the disputing parties, observe or request to review payment evidence, invoice lab test result or other evidences, the decision of the Body shall be final and binding for the parties.

The body shall handle and resolve consumer dispute, by way of mediation or arbitration or conciliation; providing consumer protection consultation, conduct supervision on the inclusion of standard clause; file report to the investigator for violation of Act Number 8 Year 1999 on Consumer Protection, receive written as well as unwritten complaint from consumer on the event of violation of the right of consumer, summon business actors suspected to commit violation on consumer protection, summons and make present witness, expert witness and/or anyone regarded as having knowledge on the violation of Act Number 8 Year 1999, request assistance from investigator to make present, business actors, witness, expert witness or anyone which refuse to comply with the summons served by the Body; to obtain, study and/or review any letter, document, or other evidences for the purpose of investigation and/or inquiry, decide and determine, the presence of loss at the consumer side; to notify the decision to the business actors violating the consumer protection; impose administrative sanction to business actors violating the Law;

The Body must decide on the matter no later than 21 working days after the claim is received; and in the period of no later 7 working days upon receiving the decision, the parties can file for objection to the District Court. The parties will be regarded as accepting the order if in 14 days upon receiving the order make no response at all. If the parties failed to comply with the order within 14 days upon receiving the order, the Body may file the order to the investigator, which may use them as initial sufficient evidence to commence investigation and request the District Court to issue write of execution over such order.

In the case of review by the District Court, the District court must issue their decision in maximum 21 days after receiving such request. The District Court decision can be appealed to the Supreme Court which must make its decision no later than 30 days upon receiving the request.

Public Information Commission

The Public Information Commission is independent agency mandated to oversee the implementation of Act Number 14 Year 2008 on Transparency of Public Information by way of issuing technical implementing regulation, and resolving public information dispute by way of mediation and non-litigation adjudication.

The commission is established in national and regional level. The national commission sits in the capital city and the regional commission sits in the capital of provinces and city/regencies. In the course of implementation of its duties, the commission shall have the following authorities, to summons and/or conduct meeting among the parties to the dispute; request the public body to produce notes or relevant materials related to the process to decide the dispute; to request explanation or to summons public official as well as all relevant parties as witness in the resolution of a public information dispute; to take oath of any witness being heard in non-litigation adjudication to resolve public information dispute; and establish code of ethic to be published to public to ensure public can review the performance of the commission.

The National Public Information Commission’s jurisdiction shall cover the authority to resolve public information dispute related to national public body and provincial public body and/or city/regency public body as long as the public information commission in such level has not been established.

The provincial Public Information Commission’s jurisdiction shall cover the authority resolve public information dispute related to relevant provincial public body and the jurisdiction of city/regency public information commission jurisdiction shall cover authority to resolve public information dispute over public body in the relevant city/regency.

Trade Mark Appeal Committee

The Trade Mark Appeal Committee is regulated under Government Regulation Number 7 Year 2005 and responsible to receive, examine and decide upon the appeal filed by the applicant over the rejection of Trademark Registration according to the substantive reasons as stipulated in Article 4, 5 or 6 of Trade Mark Law.

The committee sits under the Directorate General of Intellectual Property Ministry of Law and Human Rights.

In conducting examination, the Chairman of Appeal Commission shall establish a panel in odd number of commissioner, consist of at least 3 commissioners, one of them must be the Senior Examiner which has not involved in conducting substantive examination to the Trade Mark registration being rejected.

Patent Appeal Committee

Patent appeal Committee is tasked to receive, examine and decide upon appeal filed over the rejection to the application of patent, if under substantive examination reported by Examiner shown that Invention requested failed to meet provisions stipulated in article 2, 3,5, 6, 35, 52 (1), 52 (2) or exceptions under article 7 of Patent Law, or if the substantive examination shows that invention filed by applicant failed to meet provisions under article 36 (2) or (3) of Patent Law.

The committee sits under the Directorate General of Intellectual Property Ministry of Law and Human Rights.

Types of Dispute Resolution

Types of Dispute Resolution

In addition to ordinary dispute resolution through the channel provided by the court system, Indonesia recognize Arbitration and Alternative Dispute Resolution. Act Number 30 Year 1999 provides the foundation for recognition of arbitration, both national and international arbitration award.

There are several national arbitration body available in Indonesia, the oldest one is Badan Arbitrase Indonesia (BANI) established by the Chamber of Commerce, established in 1977.

There is also Capital Market Arbitration Board (Badan Arbitrase Pasar Modal-BAPMI) established solely to provide arbitration service for capital market dispute, and the most recently established is the Arbitration and Mediation Center (Pusat Arbitrase dan Mediasi) under the Asosiasi Pengusaha Indonesia (APINDO).

Establishment

Establishment

Civil Partnership

At present, establishment of a civil partnership does not require registration, or announcement. Article 22 of Commercial Code only require establishment of civil partnership to be conducted in verbal or in writings. In practice, parties establish civil partnership by way of notarial deed, and registration to the Registry of the relevant court and announcement in the Supplement of State Gazette.

Limited Liability Company

Establishment of Limited Liability Company follows the procedures set by the Company Law. In principle, a Limited Liability Company is established by way of a notarial deed, registration to the Ministry of Law and Human Rights, and announcement in the State Gazette.

Without registration to the Ministry of Law and Human Rights, the shareholders will be personally liable to the debt of the company.

Procedure to Establish a Limited Liability Company

In principal, establishment of a new business require approximately 23 days, with the following processes (source : Doing Business Survey Report 2017)

  1. Ordering Name of the Company (1 day)

  2. Notarial Deed, Article of Association (1 day)

  3. Legalization of Notarial Deed (1 day)

  4. Issuance of Domicile Letter (3 day)

  5. Tax ID Number (1 day)

  6. Business trading license and Company Registration Certificate (SIUP and TDP) (2 days)

  7. Worker’s Insurance (7 days)

Types of Business Entities

Types of Business Entities

Aside of the business entity owned by the government, In general, business entity in Indonesia consist of the following types:

Civil Partnership

Civil partnership is a company consist of 2 or more legal subject, there are 3 forms of partnership:

  1. Firms (Firma), regulated under Commercial Code, Firm is a partnership to carry out business by two or more people with joint name. Owner of the firm consist of several persons who engage in partnership and each partners shall set aside their personal assets as mentioned in the company’s article of association.


    Characteristic of a firms:

    • all partners are active in managing the company

    • unlimited responsibilities

    • firms will cease from existence if one of the member resign or deceased.

  2. Limited Partnership (Commandiatire Vennotschap or CV) is a partnership established by more than 2 partners. Limited Partnership recognize two types of partners:

    • Active partner is the partner who in charge of the running of the company and fully responsible of the company’s debt

    • Passive partner, is the partner who only invest funds to the active partner and not involve in the business of the company. Passive partner is responsible to the risks to the extent of the capital invested.

Profit of the company shall be divided to the members accordingly to the proportion as agreed in the article of association.

Limited Liability Company

A Limited Liability Company (Perseroan Terbatas-PT) is a legal entity which is an association of capital, established on the basis of agreement, conduct business activity on the basic capital which is wholly divided into shares and comply with the requirements as set by the company laws and its implementing regulation.

Limited Liability Company is the most commonly used type of business applicable in Indonesia.

General

General

Not all types of business are open for foreign investors. Foreign investors must observe Presidential Regulation No. 44/2016 on Negative List of Investment which sets the lines of business open and closed to foreign investors (Negative List of Investment/NLI). Under the NLI, foreign investors can identify business areas closed for foreign investment, business areas which can be fully owned by a foreign investor or those which require joint venture with a domestic investor. A certain privilege is given to investors from ASEAN countries where the NLI, based on ASEAN agreement, can provide a higher shareholding percentage compared to investors from other countries. The NLI will be reviewed every three years to accommodate the recent business updates.

Presidential Regulation Number 44 Year 2016 divide the sectors open to foreign investors to be as follows:

  1. Sector which is closed

  2. Sector which is open under condition, sectors reserved or partnering with Micro, Small Medium Enterprise and Cooperatives

  3. Sector which is open with certain condition.

International Law in Indonesia

International Law in Indonesia

International Law in Indonesia (Internasional Treatieses that Indonesian is Party To)

As fully independent country, Indonesia has been playing active role in international relation by conducting various international agreements with other countries, be it bilateral as well as multilateral.

For full lists of international agreements, treaties signed by the government of the Republic of Indonesia is accessible at

http://treaty.kemlu.go.id/

Link to Relevant Websites

Litigation Processes

Litigation Processes

Criminal Matters

Investigation

Criminal justice system commences with inquiry and investigation process. According to article 6 par (1) Criminal Procedural Law investigator shall be the investigator from the Police Force and certain civil servant official provided with special authority by the Law. In addition to that, for criminal act of corruption, according to article 6 letter c Act Number 30 Year 2002, the Anti Corruption Commission shall have the authority to conduct inquiry, investigation and prosecution over corruption offences and further article 30 par (1) letter d mention that one of the authority of the prosecutor general is to conduct investigation over certain offences according to the laws.

Offences under the Indonesian legal system shall consist of general offences and special offences. General Offences is offences regulated under Criminal Code, such as murder (art 338), theft (art 362), fraud (art 378) whereas special offences are offences regulated in specific laws such as Criminal Act of Corruption (Act Number 31 Year 1999 jo Act Number 20 Year 2001) Criminal Act of Money Laundering (Act Number 8 Year 2010) Criminal Act of Human Trafficking (Act Number 21 Year 2007).

Prosecution

Prosecution according to Article 1 Number 7 Criminal Code shall be the action taken by public prosecutor to file a criminal case to the court having jurisdiction over such matters in accordance with the applicable procedure with the request to the judge to review and decide upon the matter. If the public prosecutor is in the opinion that the result of investigation has been sufficient to prosecution, the prosecutor shall prepare indictment and file the case to the court. In the case where prosecutor is in the opinion that there is not sufficient evidence, or the event is not an offence, or the case must be closed on behalf of public order, the prosecutor may discontinue the prosecution by issuing the Order to Terminate the Prosecution.

Court Hearing

Court hearing is conducted by panel of judges consist of at least 3 (three) judges, except the laws determine the otherwise. Exceptions include hearing for juvenile cases, minor offences, expeditious procedures and pre-hearing procedures.

The hearing process is open for public except the laws determine the otherwise. Cases examined with closed procedure shall be offences committed by minor. According to Article 1 Number 3 Act Number 11 Year 2012 on Juvenile Court System, referred to as minor shall be child at the age of 12 but not exceeding 18 years old suspected to have commit crime.

The timeframe for court examination for criminal cases shall be based according to the following condition:

  1. If the defendant is under detention, the examination process shall take the consideration of the detention time. A judge can apply detention for 30 days. If the examination is not yet complete, the detention can be extended into 60 days. In the case where the defendant commit offences which subject to more than 9 years of imprisonment or the defendant is ill, the detention can be extended to maximum 30 days and can be extended further for 30 days.

  2. If the defendant is not in detention, the examination shall be conducted in accordance to the Supreme Court Circular Number 2 Year 2014 which is 5 months for court of first instance and 3 months for court of appeal.

Court agenda in a simple criminal case shall consist of the followings:

  1. Reading the Indictment

  2. Exception from the defendant

  3. Examination of evidences

  4. Reading the Requisitoir / prosecutor’s charges

  5. Reading the Pledoi / defences

  6. Reading the Decisions

The court decision shall be read in a public hearing, a typical criminal court decisions shall consist of:

  1. The decision to punish, a decisions imposed if the defendant has been proven to be guilty committing the offences mentioned by prosecutor, followings are type of the punishment:

    • Death penalty
    • Lifetime penalty
    • Jail penalty
    • Fine
    • confinement

  2. Acquittal, decision imposed if the defendant cannot be proven to commit the offences

  3. Release from the charges, if the defendant is proven to commit the act but such act is not offences.

Civil Matters

Both petition or claim under civil case shall be filed into the Court of First Instance in the general court jurisdiction. However, family cases for moslem citizen, which include divorce claim, inheritance, guardianship, shall falls under the jurisdiction of Religious Court, while same matters for non-moslem citizen shall falls under the jurisdiction of General Court.

Party can file the claim by themselves or having its own legal representation to the President of the Court of First Instance having the jurisdiction over the matter (article 118 HIR). The claim will only be registered if the plaintiff pay the court fees stipulated by the Registrar.

In general, Mediation is compulsory procedure before the hearing commences, as implementation of article 130 HIR/154 RBg. As compulsory procedure, failure to offer mediation prior the hearing shall render the court decision’s null and void.

According to Supreme Court Regulation Number 1 Year 2016 on Mediation, if the mediation succeeded, the court shall issue the deed of settlement which have equal power to a final and binding court decision, and failure to implement such deed, will allow the plaintiff to request court order from the President of the Court for execution.

If the mediation failed to reach settlement, the result of the mediation shall be recorded in the minutes of hearing, and the hearing will be continued. (Pasal 131 HIR/Pasal 155 RBg).

A summary civil dispute shall be handled by the procedure according to the Supreme Court Regulation Number 2 Year 2014 on Small Claim Court which allow the case to be settled not more than 25 days after filing, heard by single judge and appeal only possible to full panel at the same court. For ordinary civil dispute, the process is handled according to Supreme Court Circular Number 2 Year 2014 on the Settlement of Cases in the Court of First Instances and Appellate Court for Four Court Jurisdiction which stipulates that cases in the court of first instance should be finished by maximum 5 months and maximum 3 months for appellate court.

Generally, court hear cases in panel of three judges, except for petition cases, which usually heard by single judge. According to Small Claim Procedure, small claim cases shall be handled by single judge.

Appeal to the decision of the court of first instance can be made to appellate court, further appeal is available under Cassation to the Supreme Court. Special Review to the Supreme Court is possible under very limited reasons, i.e. after the decision was rendered, it is then known that the decision was based on fraud, deception from the defendant or based on the evidences which later decided by criminal judges as false or fabricated; after the decision was rendered, key evidences that may determine the outcome of the decision was found; the court decision grant matters that is not requested or decide more than requested by the prosecutor; in the case where some part of the requisitor has not been decided without any consideration; in the case where the same parties, on the same matters, on the same basis has receive inconsistent decision one to another; in the event where there are error of the judges or visible mistakes. (Article 67 Act Number 14 Year 1985 as amended by Act Number 5 Year 2004 on the Supreme Court)

Certain type of cases can be appealed directly to the Supreme Court without the need to go through the appellate court, for example in bankruptcy, Intellectual Property, Appeal Against the decision of the Consumer Protection Body, Appeal Against the Decision of Business Competition Commission, and Industrial Relation Dispute, which allow cases to be finalized in more expeditiously.

State Administrative Court

State Administrative Court is the forum for individual or private entity to sue an individual government’s decision which they consider to be on the contrary with their interest. All application shall be reviewed for its documentation before it enters the second stage, the dismissal process.

Dismissal Process in principle is a process to review whether the claim made by plaintiff meets the qualification as State Administrative claims. A dismissal procedure is conducted in summary manner in a deliberation meeting by the President of the Court or appointed judge as rapporteur.

In the dismissal procedure, the President of State Administrative Court shall summon and hear the information from both parties, and whenever necessary, the President of State Administrative Court may decide in one Court Order with argument outlining whether the petition is accepted or should be rejected.

Several reasons that may be the basis for rejection of petition in a dismissal process, as follows:

  1. the core of the claim is clearly outside the jurisdiction of the State Administrative Court

  2. the claimant does not met the condition for filing the claim, as regulated in Article 56 State Administrative Court Law even though the court has reminded the claimant

  3. the claim was based on insufficient reasons

  4. the claim requested has actually been fulfilled by the administrative decision being complained

  5. the claim was filed before the time or exceed the time.

Appeal to the decision of the State Administrative Court is made to the Appellate Administrative Court and cassation to the Supreme Court. It also follows the general rules of special review regulated in the Supreme Court Law.

Small Claim Procedure

The Supreme Court Regulation Number 3 Year 2015 in Small Claim Procedure introduce new simplified procedure for resolving simple civil case with the value of claim not exceeding Rp. 200 million (approx. 15,000 USD). Under this procedure, the court must grant its decision no later than 25 days after the first hearing.

The process is simplified compared ordinary civil litigation and examined by single judge. The procedure requires that both parties must reside under the same court jurisdiction, and identity of both parties must be clear. The procedures allow the litigants to litigate without representation.