A new regulation enacted by the Attorney General Office ("AGO") allows the discontinuation of prosecution based on restorative justice. While the concept of restorative justice is not new, it used to be the case that restorative justice only applies at the investigation stage. This regulation broadens its scope and in effect allows a perpetrator to avoid a criminal conviction.
Under the regulation, the dismissal of a prosecution based on restorative justice must meet certain conditions. These conditions include the requirement that the suspect is a first-time offender and the offence is punishable by a fine or imprisonment of fewer than five years. The suspect and the victim must also sign a settlement agreement.
Restorative justice can only be invoked by AGO. Neither the suspect nor the victim can apply for restorative justice. In addition, the scope of restorative justice is relatively narrow. It does not apply to particular offences, including those against state security, public order and insults, drug offences, and environmental crimes.
Following the issuance of the new merger regulation, the Indonesia Competition Commission or Komisi Pengawas Persaingan Usaha ("KPPU") held a public webinar to clarify various questions on asset acquisition notifications.
First, KPPU made it clear that certain asset acquisitions will not trigger the mandatory notification post-acquisition. These include assets acquisitions that (i) are below the threshold value; (ii) do not form part of the acquiring company's ordinary course of business; (iii) acquire assets for a specific use; and (iv) acquire assets that do not relate to the acquiring company's business activities.
Second, KPPU simplified the notification procedure for eligible transactions, which are those with no or minimum anti-competitive concerns.
KPPU stated that both topics would be included in the implementing guidelines for the merger regulation, which is currently being finalised by KPPU.
Public companies entering an affiliated party transaction must now obtain approval from their independent shareholders. In addition, they must have an adequate procedure in place to compare the terms and conditions of the affiliated party transaction against an ordinary transaction, to ensure that the former is carried out based on generally accepted business principles and an arm's length basis.
The independent shareholders' approval requirement applies if (i) the value of the transaction is above the company's material transaction threshold; (ii) the transaction may affect the company's business activities; or (iii) it is ordered by Indonesia's Financial Services Authority or Otoritas Jasa Keuangan ("OJK"). Some transactions are exempted, including entering into a direct facility agreement with a bank or similar entity.
On conflict of interest transactions, OJK broadens its definition to mean any transaction between a public company or a controlled company with any party, either affiliated or non-affiliated, that contains a conflict of interest.
