SEXUAL VIOLENCE LAW

 On 9 May 2022, the Government and the House of Representatives of the Republic of Indonesia has passed the Law of the Republic of Indonesia No. 12 of 2022 regarding the Sexual Violence Crime (the “Sexual Violence Law”), which came into effect on the same date. Please note that upon the enactment of the Sexual Violence Law, any ongoing cases of sexual violence crimes that are still at investigation, prosecution, or court examination in court level will still be examined based on the prevailing laws and regulations regulating such offenses prior to the enactment of the Sexual Violence Law.

Sexual Violence Law was issued with the aims of (i) preventing all forms of sexual violence, (ii) treating, protecting, and reviving the victims; (iii) enforcing the law and rehabilitating the perpetrators; (iv) establishing sexual-violence-free environment; and (v) ensuring non-recurrences of sexual violence.

The following is a brief description of the new provisions of sexual violence crime regulated under the Sexual Violence Law:

1. Scope of Sexual Violence Crime

The Sexual Violence Law stipulates that sexual violence crime comprises of physical and/or nonphysical sexual harassments, forced contraception, sterilizations, and/or marriages, sexual abuses, exploitations, and/or slaveries, and electronic-based sexual violence.

In addition, sexual violence crime also include:

1. Rapes;
2. Obscene acts;
3. Sexual intercourse, obscene act, and/or sexual exploitation against underage (individuals under 18 (eighteen) years old, including unborn child);
4. Decency violence act that is contrary to the will of the victim;
5. Underage pornography or pornography explicitly containing sexual violence and exploitations;
6. Forced prostitution;
7. Human trafficking crime for sexual exploitation purposes;
8. Domestic sexual violence;
9. Money laundering crime from sexual violence crime; and
10. Other acts expressly stipulated as sexual violence crime regulated under the prevailing laws and regulations.

1. Criminal Provisions

Sexual Violence Law stipulates the following criminal sanctions:

1. Additional Sanctions

Sexual Violence Law sets out the following additional sanctions:

1. Restitution (for sexual violence crime that is punishable by imprisonment of 4 years or more), that is a compensation payment which charged to the perpetrator for material and/or immaterial losses suffered by the victim or his/her heirs;
2. Revocation of child custody or guardianship;
3. Publication of the perpetrator’s identity;
4. Confiscation of profit and/or property gained from sexual violence crime;
5. Social and medical rehabilitation (including psychiatric rehabilitation) for the perpetrator; and/or
6. Additional 1/3 (one third) of the criminal sanction as listed in the table in section 2 letter a above, in the event that the sexual violence crime is, among others:

1. Intrafamilial-related;
2. committed by health/medical workers, educators or educational workers, or other professionals who are mandated to carry out treatment, protection, and recovery;
3. committed by employees, management, or officers against individuals who are trusted to be taken care of;
4. committed by public officers, employers, superiors, or management against individuals employed by or working for them;
5. committed more than once or against more than 1 (one) individuals;
6. committed by 2 (two) individuals or more in a group;
7. committed against underage, disabled, expectant woman, non-conscious or helpless individuals, individuals who are in emergency, danger/conflict situation, disaster, or war;
8. committed through electronic platforms; and/or
9. causing the victim to suffer from severe injury, severe psychological effects, infectious diseases, cessation and/or damage to reproductive function, and/or death.

1. Sanctions against Corporations

Corporations (legal entity and/or non-legal entity) who commit sexual violence crime shall be sanctioned with a fine of at least Rp5,000,000,000 (five billion Rupiahs) and maximum Rp15,000,000,000 (fifteen billion Rupiahs), which can be imposed to the corporation itself and/or its management, instructors, controllers, beneficial owners.

In addition, corporation also can be imposed with additional sanction as follows:

1. Confiscation of profit and/or property gained from sexual violence crime;
2. Revocation of certain licenses;
3. Publication of court decision;
4. Permanent prohibition from carrying out certain actions;
5. Suspension of all or part of the corporation’s activities;
6. Closure of all or part of the corporation’s premises; and/or
7. Dissolution of the corporation.

This client alert is intended to provide a brief overview only on several provisions and may not cover all provisions under the Sexual Violence Law, thus, cannot be deemed as a legal advice. Please do not hesitate to contact us if you need a more detailed discussion, advice, and/or have specific questions.

LINK PDF : BIRP-Draft-Client-Alert-re-Sexual-Violence-Law-2022-05-19_Rev-clean1.pdf

BRIGITTA I. RAHAYOE & PARTNERS

In February 2021, the Government of the Republic of Indonesia issued Government

Regulation No. 35 of 2021 concerning Fixed-Term Employment Agreement, Outsourcing,

Working Time and Rest Time, and Termination of Employment (“GR 35/2021”). GR 35/2021

is one of the implementing regulations of Law No. 11 of 2020 concerning Job Creation (“Job

Creation Law”) which has been promulgated since 2 November 2020.

The Job Creation Law and GR 35/2021 stipulate several provisions which amend provisions

under the Law No. 13 of 2003 concerning Manpower (“Law 13/2003”) especially regarding the

Termination of Employment (Pemutusan Hubungan Kerja – “PHK”) and the amount of

compensation for the employees affected by the termination.

A. Procedure of Termination of Employment

The spirit of Indonesian labor law is to prevent PHK. Under the Law 13/2003, PHK is

possible only with the consent of an institute of settlement of industrial disputes (in the

form of the Industrial Relation Court) (“Tribunal”). By the issuance of the Job Creation

Law and GR 35/2021, in the event that PHK cannot be prevented, the employer may

terminate the employment relationship with the following procedure:

1. Providing notification letter with regards to the termination from the employer to the

employees, by fulfilling the following conditions:

a. No later than 14 (fourteen) days prior to PHK for employee or labor union; and

b. No later than 7 (seven) days prior to PHK for employee on probation.

2. Upon the notification, if there is no refusal/rejection from the employees, the employer

must report the PHK in question to the local Manpower Office.

However, if the employees refuse or disagree with the termination, the parties must

resolve the dispute through the industrial relations settlement mechanism, i.e., bipartite

negotiation, non-binding mediation, and/or through industrial relation court.

The abovementioned procedure shall apply to employment relationship under a Fixedterm

Employment Agreement (Perjanjian Kerja Waktu Tertentu – “PKWT”) or a

Permanent Employment Agreement (Perjanjian Kerja Waktu Tidak Tertentu – “PKWTT”).

New Regulation on Termination of Employment and Severance Payment 29 September 2021

Brigitta I. Rahayoe & Partners Page 2

B. Compensation for Employees

1. Compensation for Employee with PKWTT

The Job Creation Law revokes provisions under Law 13/2003 regarding the calculation of severance and compensation package. Further, provisions regarding the calculation of the severance and compensation package for PKWTT’s employees are stipulated under GR 35/2021. The severance and compensation package for PKWTT’s employees shall consist of:

a. Severance Payment (Uang Pesangon);

b. Reward of Service Payment (Uang Penghargaan Masa Kerja, commonly called “Gratuity”);

c. Compensation Rights (Uang Penggantian Hak); and/or

d. Separation Payment (Uang Pisah).

The total compensation for the terminated PKWT employees generally varies depending on the reasons of termination. There are several amendments to the severance package formula which previously were stipulated under the Law 13/2003, among others:

Merger, Consolidation, or Spin-off of the Company (Employer is not willing to employ the employees) Law 13/2003 GR 35/2021 Severance Payment

2x severance payment

1x severance payment Gratuity

1x Gratuity

1x Gratuity Compensation Rights

✓

✓ Separation Payment

-

-

The Company Bankruptcy Law 13/2003 GR 35/2021 Severance Payment

1x severance payment

0.5x severance payment Gratuity

1x Gratuity

1x Gratuity Compensation Rights

✓

✓ Separation Payment

-

-

GR 35/2021 also stipulates that for micro and small businesses, the calculation of Severance Payment, Gratuity, Compensation Rights, and Separation Payment for terminated employees, are to be granted based on the mutual agreement between the employer and its employee.

New Regulation on Termination of Employment and Severance Payment 29 September 2021

Brigitta I. Rahayoe & Partners Page 3

2. Compensation for Employee with PKWT

Previously, Law 13/2003 only regulates that if a PKWT is terminated before its expiry date, then the party that terminates the agreement is obligated to pay the balance of the payment to the other party until the expiration of the agreement.

GR 35/2021 stipulates additional provisions, in the event of the PKWT is terminated or completed, the employer is obligated to pay compensation to the employees, with the following requirements:

a. The compensation payment must be paid at the end of or on completion of the PKWT;

b. The compensation payment is payable to the terminated employees who have worked for at least 1 (one) month continuously;

c. If the PKWT is extended, the compensation payment will be payable when the initial PKWT term is completed, and the next compensation money will be payable when the extended PKWT term is completed;

d. The compensation payment is not applicable to expatriates;

e. If the PKWT is terminated before the intended contract period under the PKWT, the compensation payment is calculated based on the actual work period the employee has completed;

f. The compensation payment for the micro and small enterprises’ employees is based on agreements between the employer and its employees;

g. If one party terminates the employment before the expiration of the period as stipulated under PKWT, the employer must pay compensation payment calculated based on the employee’s period of employment.

The compensation’s calculation for PKWT’s employee pursuant to the GR 35/2021:

Completed PKWT’s Period Amount of Compensation Payment

12 months consecutively

1 month’s salary

1 month or more but less than 12 months

work period (in month)

X

1 month’s salary

12

More than 12 months

This client alert is intended to provide a brief overview only on several provisions and may not cover all provisions of Law 13/2003 as amended by Job Creation Law and GR 35/2021, thus,

New Regulation on Termination of Employment and Severance Payment 29 September 2021

Brigitta I. Rahayoe & Partners Page 4

cannot be deemed as a legal advice. Please do not hesitate to contact us if you need a more detailed discussion and/or advice and/or have specific questions.

BRIGITTA I. RAHAYOE & PARTNERS

Emails:

Brigitta I. Rahayoe

brigitta@brigitta.co.id

Ahmad Fadli

ahmad.fadli@brigitta.co.id

Michael H. Giovanni

michael.giovanni@brigitta.co.id

Link PDF : www.brigitta.co.id/wp-content/uploads/2021/09/BIRP-Client-Alert-New-Regulation-on-Termination-of-Employment-and-Severance-Payment1.pdf

Klik Link Document : BIRP-Client-Alert-New-Regulation-on-Risk-Based-Business-Licensing1.pdf (brigitta.co.id)

In November 2020, the Minister of Energy and Mineral Resources of the Republic of Indonesia (“MEMR”) issued the Regulation No. 17 of 2020 (“RM 17/2020”) concerning the Third Amendments to the Regulation of Minister of Energy and Mineral Resources No. 25 of 2018 concerning the Minerals and Coal Mining Businesses (“RM 25/2018”). This regulation was issued to ensure the development of domestic refinery facilities by the holders of coal and mineral mining business licenses. RM 17/2020 provides for the extensions of periods during which certain types of businesses are allowed to export their respective products, which were previously regulated under RM 25/2018. The following table summarizes the period extensions contained in RM 17/2020: No. Description Previous Deadline New Deadline Notes 1 Sales of processed products abroad for holders of: a. Mining Business License (Izin Usaha Pertambangan – “IUP”) Metal Mineral Production Operations (IUP Operasi Produksi Mineral Logam); or b. Special Mining Business License (Izin Usaha Pertambangan Khusus – “IUPK”) Metal Mineral Production Operations (IUPK Operasi Produksi Mineral Logam) 11 January 2022 10 June 2023 Subject to approval from the Directorate General of Foreign Trade (“DGFT”) and recommendation from the Directorate General of Minerals and Coals (“DGMC”) 2 Sales of processed products abroad for holders of the Processing and/or Refinery Business Licenses (Izin Usaha Pengolahan dan/atau Pemurnian) which were issued prior to the issuance of the Government Regulation No. 1 of 2017 regarding the Fourth Amendments to the 11 January 2022 Until the export approval expires Subject to DGFT approval and DGMC recommendationNew Regulation of the Minister of Energy and Mineral Resources 23 March 2021 Brigitta I. Rahayoe & Partners Page 2 No. Description Previous Deadline New Deadline Notes Government Regulation No. 23 of 2010 regarding the Implementation of Mineral and Coal Mining Business Activities 3 Sales of anode slime as byproducts or residues produced during copper refining processes for holders of the Processing and/or Refinery Business Licenses 11 January 2022 10 June 2023 Subject to DGFT approval and DGMC recommendation 4 Sales of washed bauxite with A12O3 content ≥ 42% for holders of IUP Production Operations which have built or in the process in building, their own refinery facility or cooperating with other party(ies) to build refinery facility 11 January 2022 10 June 2023 Subject to approval from DGFT and recommendation from DGMC The recommendation as mentioned in table above, will be granted to holders of IUP Production Operations if the physical progress of the construction of refinery facility have reached the level of progress in accordance with the refinery facility construction plan that has been verified by an independent appraiser no later than 10 June 2023. Similar requirements also apply for holders of IUPK Production Operations although no deadline has been determined in this regard. Apart from the amendments under RM 17/2020 as mentioned above, RM 17/2020 removes Article 48 of RM 25/2018 which stipulates that holders of Contract of Work (Kontrak Karya – “KK”) that have converted their mining business licenses to IUPK Production Operations can export processing products in certain quantities by using the relevant Tariff Post/HS (Harmonized System). Furthermore, RM 17/2020 stipulates 2 (two) new provisions, as follows: 1. Article 52 A This provision allows the holders of IUP Production Operations to amend their respective refinery facility construction plan after it has been verified by an independent appraiser. New Regulation of the Minister of Energy and Mineral Resources 23 March 2021 Brigitta I. Rahayoe & Partners Page 3 Such amendment must be notified to MEMR through DGMC no later than 90 (ninety) days after the enactment of RM 17/2020. 2. Article 57 A This provision stipulates that the export approvals granted before RM 17/2020 comes into effect will remain valid until the expiration of the relevant export approvals. This client alert is intended to provide an overview only, thus, cannot be deemed as a legal advice. Please do not hesitate to contact us if you need a more detailed discussion and/or advice. BRIGITTA I. RAHAYOE & PARTNERS

Emails: Brigitta I. Rahayoe brigitta@brigitta.co.id

Ahmad Fadli ahmad.fadli@brigitta.co.id

Michael H. Giovanni michael.giovanni@brigitta.co.id

Download Link PDF :

BIRP-Client-Alert-ESDM-Regulation-2021-03-233.pdf (brigitta.co.id)

On 6 November 2020, Indonesia’s Investment Coordinating Board (Badan Koordinasi Penanaman Modal – “BKPM”) issued BKPM Regulation No. 6 of 2020 regarding Guideline and Procedure for Controlling the Implementation of Capital Investment (“RBKPM 6/2020”) which came into effect as of 13 November 2020. This regulation revokes the previous regulation i.e., BKPM Regulation No. 7 of 2018, which was issued in July 2018.

RBKPM 6/2020 provides for, among others, guidelines for submitting Investment Activity Reports (Laporan Kegiatan Penanaman Modal – “LKPM”) by business practitioners through the Online Single Submission (“OSS”) system. Pursuant to RBKPM 6/2020, every business practitioner, both individual and non-individual (a company, either local or foreign investment company) that has obtained a business license from the OSS system is required to submit LKPMs with the following conditions:

1. Businesses with an investment value of IDR 50 million to IDR 500 million are required to submit LKPMs semesterly (every 6 (six) months), with the following deadlines:

1. for the first semester, no later than 10 July of the ongoing year; and
2. for the second semester, no later than 10 January of the following year.

1. Businesses with an investment value of more than IDR 500 million are required to submit LKPMs quarterly (every 3 (three) months), with the following deadlines:

1. for the first quarter, no later than 10 April of the ongoing year;
2. for the second quarter, no later than 10 July of the ongoing year;
3. for the third quarter, no later than 10 October of the ongoing year; and
4. for the fourth quarter, no later than 10 January of the following year.

However, pursuant to RBKPM 6/2020 the following business sectors are not required to submit LKPM:

1. upstream oil and gas business;
2. banking business;
3. non-banking financial business; and
4. insurance business.

Please note, however, that non-obligatory LKPM reporting to BKPM for the abovementioned business sector does not relieve those businesses from reporting their respective business activities to other governmental institutions as required under the prevailing laws and regulations.

Furthermore, RBKPM 6/2020 stipulates that for businesses that fail to submit LKPMs through OSS system shall be subject to the following administrative sanctions:

1. warning letter;
2. restriction and/or temporary business activities suspension;
3. revocation and/or cancellation of business licenses;
4. closure of administrative branch offices; and/or
5. imposition of administrative fines.

In addition, RBKPM 6/2020 also provides for the obligation for representative offices of foreign companies to submit representative office’s activity reports, and the obligation for companies that have obtained import duty exemption facilities to submit import realization reports, with the following conditions:

1. general representative offices of foreign companies (“KPPA”), representative offices for foreign trading companies (“KP3A”), and representative offices for foreign oil and gas companies (“KPA Migas”) are required to submit representative office’s activity reports semesterly through the OSS system with deadlines as abovementioned;

1. representative offices for foreign construction companies (“BUJKA”) are required to submit representative office’s activity reports annually through the OSS system (or silapta.pu.go.id as the case maybe) no later than 10 January of the following year; and

1. companies that have obtained import duty exemption facilities are required to submit import realization reports through the OSS system no later than 7 (seven) days after obtaining the approval letter from the Directorate General of Customs and Excise.

Lastly, RBKPM 6/2020 in its attachments also provides for the newest LKPM forms, which distinguish the LKPM form for businesses with investment values between IDR50,000,000 (fifty million Rupiah) and IDR500,000,000 (five hundred million Rupiah) and the LKPM form for businesses with investment values of more than IDR 500,000,000 (five hundred million Rupiah). Additionally, for those businesses with investment value of more than IDR 500,000,000 (five hundred million Rupiah) there are separate LKPM forms for businesses that have entered into a commercial production stage and not in the commercial production stage.

This client alert is intended to provide a general overview only, thus, cannot be deemed or treated as a legal advice. Please do not hesitate to contact us if you need a more detailed discussion and/or advice.

BRIGITTA I. RAHAYOE & PARTNERS

Download Link :

Client-Alert-New-Regulation-on-Guideline-to-Submit-an-Investment-Activity-Report-2020-02-25-FINAL1.pdf

On 5 October 1961, the Convention Abolishing the Requirement of Legalization for Foreign
Public Documents (the “Hague Convention”) was signed and agreed upon as an international
treaty by several countries which participated in the convention. As of 2021, there are 120
countries around the world that have ratified and implemented the Hague Convention (these
countries each is typically referred to as the “Contracting State”).
Pursuant to the Hague Convention, any public document (as shall be defined hereunder)
produced or signed within the territory of a Contracting State shall be exempt from having to
go through the legalization process before it can be used in territory of any other Contracting
State. The process to validate or certify the authenticity of signature in the public documents
is conducted by applying the apostille, so that the public documents can be recognized in any
other Contracting State’s territory. Apostille is a process in which the appointed government
official certifies that the notary’s or other competent officer’s signature, seal, and license are
valid. The appointed government official then attaches a certificate to the public document with
his/her authorization seal and signature. It should be noted, however, that an apostille does
not typically certify and/or validate the contents of a document. Instead, it usually only certifies
the authenticity of signatures, the capacity of the signatories, and validity and correctness of
the seal(s) and/or stamp(s) contained in a particular document.
Pursuant to the Hague Convention, documents that are categorized as “public documents”
are as follows:
1. Documents issued by authority or official relating to the state court or tribunal;
2. Administrative documents;
3. Documents issued by a notary; and
4. Official certificate(s) attached to a document signed by an individual in his/her civil
authority, such as a certificate that records the registration of a document or one that
records a certain validity period of a document on a certain date or legalization of
signatures by officials and notaries.
On 5 January 2021, the President of the Republic of Indonesia has enacted the Presidential
Regulation No. 2 of 2021 concerning Ratification of the Convention Abolishing the
Requirement of Legalization for Foreign Public Documents (“PR 2/2021″). With the enactment
of PR 2/2021 which ratifies the Hague Convention, the validation process of public documents
executed in the territory of a Contracting State in the form of consular legalization shall not be
required, accepting, instead, documents that have gone through the apostille process.

The Abolition of Legalization Requirement 19 February 2021

However, the Annexure of PR 2/2021 conveys that any documents issued by the prosecutor’s office, as a prosecuting agency in Indonesia, are not included as public documents as referred to in the Hague Convention. Therefore, documents issued by the prosecutor’s office will still go through the legalization process.
Based on confirmation from relevant government agencies, currently the Indonesian government is taking all necessary steps, so that the Hague Convention can come into force in Indonesia, including the apostille system. If there is no objection raised by any existing Contracting State, the Hague Convention would come into force in Indonesia in the near future. Nevertheless, we still need to see further measures to be taken by related government agencies and view from notary public in Indonesia as to whether, when the Hague Convention comes into force in Indonesia, corporate documents, such as shareholders’ resolutions or powers of attorney are included in the definition of public documents as referred to in the Hague Convention.
This client alert is intended to provide an overview only, thus, cannot be deemed as a legal advice. Please do not hesitate to contact us if you need a more detailed discussion and/or advice.
BRIGITTA I. RAHAYOE & PARTNERS
Emails:
Brigitta I. Rahayoe
brigitta@brigitta.co.id
Ahmad Fadli
ahmad.fadli@brigitta.co.id
Michael H. Giovanni
michael.giovanni@brigitta.co.id

On 9 February 2021, Indonesia National Task Force for Covid-19 issued Circular Letter No. 8
of 2021 concerning International Travel Health Protocols during the Corona Virus Disease
2019 (COVID-19) Pandemic (“CL 8/2021”). CL 8/2021 was issued to extend the validity period
of the implementation of health protocols for international travels, which was previously
stipulated under the Circular Letter No. 6 of 2021. CL 8/2021 was issued to protect Indonesian
citizens from the transmission of the Corona Virus Disease 2019 (“COVID-19”), including new
strains and potential new variants of the virus from abroad.
CL 8/2021 stipulates that:
1. Indonesian citizens from overseas can enter Indonesian territory by strictly following the
health protocols provided for by the government;
2. Foreign international travelers from any countries who enter Indonesia, either directly or
by transiting in any foreign country, are temporarily prohibited to enter Indonesia, except
if the said international travelers meet the following criteria:
a. holders of valid visas and stay permits for service, diplomatic, visiting and permanent
stay;
b. holders of valid Asia-Pacific Economic Cooperation Business Travel Cards, and
Traditional Border Crossers;
c. foreigners who meet the conditions prescribed in the Travel Corridor Arrangement
(“TCA”) bilateral agreement, between Indonesia and related countries; and/or
d. foreigners with written special consideration/permission from relevant government
institution(s);
3. Any international travelers, Indonesian citizens and foreigners, from any countries who
enter Indonesia, either directly or by transiting in any foreign country, must comply with
certain terms and conditions, among others:
a. comply with health protocols provided for by the Indonesian government;
b. present a negative RT-PCR test results from their respective country of origin, which
samples are taken within a maximum period of 3 x 24 hours before the departure;
c. conduct RT-PCR retests upon arrival;

Health Protocols for International Travels 11 February 2021
Brigitta I. Rahayoe & Partners Page 2
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d. undergo quarantine for 5 x 24 hours, with the following terms:
(i) for Indonesian citizens, i.e., migrant workers, students/college students, government employees returning from foreign official trips, shall undergo the quarantine at Wisma Pademangan, at the expense of the government; and
(ii) for Indonesian citizens who do not meet the criteria as mentioned in point (i) above, and for foreigners, including foreign diplomats, shall undergo the quarantine at the quarantine accommodation (hotels and/or lodging) which have received certification to facilitate COVID-19 quarantine accommodation by the Ministry of Health at their own expenses; and
e. carry out self-quarantine at their respective residences for 5 x 24 hours (strictly for heads of foreign representative and their respective family members);
4. If the result of the RT-PCR re-examination on arrival shows a positive result, then the foreign travelers shall be treated in the hospital. The treatment for Indonesian citizens shall be borne by the government and for foreigners at their own expenses;
5. In the event that the foreigners are unable to pay for self-quarantine and/or treatment at the hospital, then the sponsor, the ministry/institution/state-owned company, that previously issued the recommendation and/or sponsor letters must be responsible for the costs;
6. After 5 x 24 hours of quarantine from the date of arrival, RT-PCR re-examination will be carried out. If the result is negative, the Indonesian citizens and foreigners can continue their journey. If the result is positive, the Indonesian citizens will be treated at the hospital at the expense of the government, and foreigners at their own expenses; and
7. The self-quarantine obligation is not mandatory for holders of diplomatic visas and official visas related to official/state visits of foreign officials at ministerial level and above. This obligation is also not applicable for foreigners who enter Indonesia through TCA scheme in accordance with the principle of reciprocity while still implementing strict health protocols.
The special provisions as stipulated in CL 8/2021 are effective as of 9 February 2021 and can be evaluated at any time.

Health Protocols for International Travels 11 February 2021
Brigitta I. Rahayoe & Partners Page 3
Page 3 of 3
This client alert is intended to provide an overview only, thus, cannot be deemed as a legal advice. Please do not hesitate to contact us if you need a more detailed discussion and/or advice.
BRIGITTA I. RAHAYOE & PARTNERS
Emails:
Brigitta I. Rahayoe
brigitta@brigitta.co.id
Ahmad Fadli
ahmad.fadli@brigitta.co.id
Michael H. Giovanni
michael.giovanni@brigitta.co.id

On 5 October 1961, the Convention Abolishing the Requirement of Legalization for Foreign
Public Documents (the “Hague Convention”) was signed and agreed upon as an international
treaty by several countries which participated in the convention. As of 2021, there are 120
countries around the world that have ratified and implemented the Hague Convention (these
countries each is typically referred to as the “Contracting State”).
Pursuant to the Hague Convention, any public document (as shall be defined hereunder)
produced or signed within the territory of a Contracting State shall be exempt from having to
go through the legalization process before it can be used in territory of any other Contracting
State. The process to validate or certify the authenticity of signature in the public documents
is conducted by applying the apostille, so that the public documents can be recognized in any
other Contracting State’s territory. Apostille is a process in which the appointed government
official certifies that the notary’s or other competent officer’s signature, seal, and license are
valid. The appointed government official then attaches a certificate to the public document with
his/her authorization seal and signature. It should be noted, however, that an apostille does
not typically certify and/or validate the contents of a document. Instead, it usually only certifies
the authenticity of signatures, the capacity of the signatories, and validity and correctness of
the seal(s) and/or stamp(s) contained in a particular document.
Pursuant to the Hague Convention, documents that are categorized as “public documents”
are as follows:
1. Documents issued by authority or official relating to the state court or tribunal;
2. Administrative documents;
3. Documents issued by a notary; and
4. Official certificate(s) attached to a document signed by an individual in his/her civil
authority, such as a certificate that records the registration of a document or one that
records a certain validity period of a document on a certain date or legalization of
signatures by officials and notaries.
On 5 January 2021, the President of the Republic of Indonesia has enacted the Presidential
Regulation No. 2 of 2021 concerning Ratification of the Convention Abolishing the
Requirement of Legalization for Foreign Public Documents (“PR 2/2021″). With the enactment
of PR 2/2021 which ratifies the Hague Convention, the validation process of public documents
executed in the territory of a Contracting State in the form of consular legalization shall not be
required, accepting, instead, documents that have gone through the apostille process.

The Abolition of Legalization Requirement 19 February 2021

However, the Annexure of PR 2/2021 conveys that any documents issued by the prosecutor’s office, as a prosecuting agency in Indonesia, are not included as public documents as referred to in the Hague Convention. Therefore, documents issued by the prosecutor’s office will still go through the legalization process.
Based on confirmation from relevant government agencies, currently the Indonesian government is taking all necessary steps, so that the Hague Convention can come into force in Indonesia, including the apostille system. If there is no objection raised by any existing Contracting State, the Hague Convention would come into force in Indonesia in the near future. Nevertheless, we still need to see further measures to be taken by related government agencies and view from notary public in Indonesia as to whether, when the Hague Convention comes into force in Indonesia, corporate documents, such as shareholders’ resolutions or powers of attorney are included in the definition of public documents as referred to in the Hague Convention.
This client alert is intended to provide an overview only, thus, cannot be deemed as a legal advice. Please do not hesitate to contact us if you need a more detailed discussion and/or advice.
BRIGITTA I. RAHAYOE & PARTNERS
Emails:
Brigitta I. Rahayoe
brigitta@brigitta.co.id
Ahmad Fadli
ahmad.fadli@brigitta.co.id
Michael H. Giovanni
michael.giovanni@brigitta.co.id

The PR 63/2019 applies more comprehensive provisions than the previous regulation which only regulated the language used in official speeches of state officials. Article 26 of PR 63/2019 requires the Indonesian language to be utilized in all Memoranda of Understandings (“MoU”) and/or agreements which involve Indonesian state institutions, government agencies of the Republic of Indonesia, Indonesian private entities, and individuals as Indonesian citizens. If an MoU and/or agreement involve foreign parties, then the MoU or agreement could also be drawn up in the national language of the relevant foreign parties and/or in English. However, Article 26(4) of PR 63/2019 stipulates that the parties are free to choose the prevailing version of the document should inconsistencies be found between the Indonesian-language version and the foreign-language version.

In addition, Article 28 of PR 63/2019 requires that Indonesian language is used in official communications carried out within the working environments of both the Indonesian government and private sectors. This includes all verbal and written communications through both electronic and non-electronic media, which are undertaken between employees and institutions, as well as between institutions and the general public, and which relate to the duties and functions of the relevant institutions. Further, Article 29 of PR 63/2019 allows for the use of translators for any official communications which are undertaken within the working environments of both the Indonesian government and the private sectors which involve international organizations or institutions of foreign countries.

Furthermore, it is important to note that PR 63/2019 requires all non-Indonesian names and the use of traditional language or foreign language to be written in the latin alphabet, including names of buildings, apartments or residences, offices and trading complexes that are built or owned by Indonesian citizens or Indonesian legal entities. However, if the buildings have historical, cultural, customary, and/or religious values, they may use traditional language or foreign languages which must be written in the latin alphabet.

PR 63/2019 does not provide for clear sanctions for any violations. However, there remains a risk that a contract executed only in foreign language may be held void for lack of an Indonesian translation. Therefore, in the event a contract (agreement and/or MoU) involving Indonesian party, and the parties would like to have the contract in a foreign language, then the contract should be made in billingual version, i.e., in Indonesian language and the national language of the relevant foreign party or in English.

This client alert is intended to provide an overview only, thus, cannot be deemed as a legal advice. If you need a more detailed discussion and/or advice, please do not hesitate to contact us.

BRIGITTA I. RAHAYOE & PARTNERS

1. RMOT No. 53/M-DAG/PER/8/2012 of 2012 regarding Franchising;
2. RMOT No. 68/M-DAG/PER/10/2012 of 2012 regarding Franchises for Modern Store Business;
3. RMOT No. 07/M-DAG/PER/2/2013 of 2013 regarding the Development of Partnerships in Food and Beverages Franchises; and
4. RMOT No. 60/M-DAG/PER/2013 of 2013 regarding Franchises Logo;

(“Previous Regulations”).

New Key Provisions

Some new key provisions under the RMOT 71/2019 are as follows:

1. RMOT 71/2019 provides more defined explanation of the criteria of a franchise, namel
2. It must have a Special Business Characteristic (Ciri Khas Usaha);
3. Proven to be profitable, i.e. if the franchisor has at least 5 years of experience;
4. Easy to be taught and applied; 
5. Ongoing support shall be available; and
6. The Intellectual Property Rights, as part of the franchise, has been registered or in the process of registration to the Directorate General of Intellectual Property (“DGIP”),
7. RMOT 71/2019 obliges Franchisor, Franchisee, Sub-Franchisor and Sub-Franchisee (“Franchise Business Actors”) to obtain Franchise Registration Certificate (Surat Tanda Pendaftaran Waralaba – “STPW”) by applying through the Online Single Submission system;
8. RMOT 71/2019 affirms that franchise agreement must be formed and resolved under Indonesian law and drafted in Indonesian language. In addition to this, the franchise offering prospectus must also be made in Indonesian language. If it is written in foreign language it must be officially translated into Indonesian language; and
9.  Franchise agreement must include a provision regarding the change of franchise ownership.

Revoked Terms

The limitation number of 150 outlets for modern store and 250 outlets for food and beverage business (as stipulated in the Previous Regulations) is no longer stipulated in RMOT 71/2019; and

The restriction to franchisors to appoint new franchisee in the same area upon the occurrence of unilateral termination of the franchise agreement (unless a “clean break” or a final and binding court decision is granted), is revoked. Thus, this can be interpreted that franchisor may appoint new franchisee in the same area although the existing franchise agreement is terminated unilaterally (without clean break or obtained court decision).

Amended Terms

RMOT 71/2019 also amend several provisions, among others:

1. Franchise Business Actors are now required to submit annual reports to the Director of Business Development and Distribution Performers of the MOT through the Online Single Submission system; and
2. Amending the limitation on the use of 80% locally sourced raw materials, equipment or products. RMOT 71/2019 now only obliges Franchise Business Actors to prioritize the use of local goods and services.
 

Sanctions

1. Any Franchise Business Actors who does not hold a STPW may be subject to criminal sanction as stipulated in Law No. 7 of 2014 regarding Trade i.e. imprisonment of at most 4 (four) years or a tine of at most Rp10,000,000,000 (ten billion rupiah); and
2. Any violation to the provision under the RMOT 71/2019 i.e. negligence in providing guidance to the franchisee and in reporting business activities or improper use of franchise logo may be subject to an administrative sanction i.e. written warning and revocation of STPW.

This client alert is intended to provide an overview only, thus, cannot be deemed as a legal advice. Please do not hesitate to contact us if you need a more detailed discussion and/or advice.

BRIGITTA I. RAHAYOE & PARTNERS