Ada Pertanyaan? Hubungi Kami 
2026 Hak Cipta Milik Hukumonline.com
Produk Pilihan
Ada Pertanyaan? Hubungi Kami Marcell Sihombing, Nando Narendra
The government has recently been preparing the groundwork for the establishment of state-owned enterprises (SOE) holding companies. The hope is that these companies will ultimately consolidate SOEs according to their core business sectors.
With this end in mind, the Ministry of State-Owned Enterprises plans to establish 15 SOE holding companies across seven sectors as part of the SOE Roadmap for the 2015-2019 Period. The seven sectors in question are trade and logistics, plantations, pharmaceuticals, shipping, construction and infrastructure, mining, and strategic defense. Furthermore, the government is also planning to remove 34 subsidiary companies from the current total of 119, meaning that 85 subsidiary companies will remain.
This plan, however, must be addressed and implemented cautiously, due to the possibility of various legal issues arising. Muhammad Faiz Aziz, a researcher from the Indonesian Center for Law and Policy Studies (Pusat Studi Hukum dan Kebijakan Indonesia – PSHK), asserts that at least three possible issues may arise as regards this matter.
The first issue highlighted by Mr. Aziz relates to the legal status of SOEs. According to Aziz, the definition of SOEs stipulated under Article 1.1 of Law No. 19 of 2003 on State-Owned Enterprises (SOE Law) only acknowledges SOE holding companies as SOEs. Under this provision, subsidiary companies of SOE holding companies do not constitute SOEs, and this is specifically prescribed in the phrase “…direct (capital) participation that originates from a separation of state assets”.
“If solely defined by the phrase ‘direct capital participation’, then only holding companies can be acknowledged [as SOEs], because [any capital participation by] subsidiary companies is not direct, but is tiered,” explained Mr. Aziz from his office in an interview held with hukumonline on Wednesday, 10 February 2016.
If the government wishes for subsidiary companies to also be acknowledged as SOEs, then the definition of SOEs prescribed under the SOE Law must be amended. Mr. Aziz insisted that an amendment may clarify the legal status of SOE subsidiary companies, as regards the limits of the country’s capital-participation engagement in SOEs and their subsidiary companies.
Mr. Aziz expressed his firm belief that any amendment may affect the current debate as regards the extent to which state assets can be injected to subsidiary companies, due to the fact that SOE subsidiary companies often enjoys “preferential treatment” much as SOEs themselves do. By way of example, SOE subsidiary companies often enjoy preferential treatment when procuring goods and services or when undergoing financial auditing.
Unfortunately, Mr. Aziz was unable to define which legal status would be more suitable for SOE holding companies, due to the fact that the fundamental governmental policy which should be incorporated into the SOE Roadmap for the 2015-2019 Period has yet to be signed into law by President Joko Widodo. However, Mr. Aziz believes that a clearly defined legal status as regards SOEs is an absolute necessity, even if an SOE holding-company policy does not yet exist.
A second potential issue that may arise relates to the uncompetitive business practices stipulated under Law No. 5 of 1999 on the Prohibition of Monopolies and Unfair Business Practices (Monopolies Law). According to Mr. Aziz, this potential issue relates to the concepts of oligopoly, the division of territory, trust, vertical integration, and stock ownership, as well as to mergers, consolidations, and acquisitions.
“This issue needs to be carefully examined in detail as it [an SEO holding company] may be constituted by a merger, consolidation, or acquisition, or, on the other hand, it could also constitute an oligopoly, or a trust,” asserted Mr. Aziz.
Mr. Aziz believes that only the Business Competition Oversight Commission (KPPU) has the authority to determine SEO holding companies from the perspective of business competition, as prescribed under Article 35, point (e) of the Monopolies Law. Mr. Aziz therefore suggests that the government and the KPPU cooperate as regards the issue of SOE holding companies, especially in relation to the issue of business competition.
“It is preferable that whenever the government intends to engage in an activity that constitutes a corporate action, they first seek advice from the relevant stakeholders in order to avoid violating the law. In this case, the government should take an active approach, in light of the fact that this initiative comes from the government and not from business,” asserted Mr. Aziz.
A third and final potential issue, according to Mr. Aziz, relates to conformity with the laws which govern the capital-market sector. Mr. Aziz revealed that out of a total of 119 currently existing SOEs, some have inevitably become publicly listed companies (perusahaan terbuka, usually sporting “Tbk” behind their company names). Any SOE holding-company plan must therefore also provide sufficient protection for investors.
“We mustn’t forget to assess in detail whether it [the SOE holding-company plan] will end up affecting stock ownership or not,” asserted Mr. Aziz.
Mr. Aziz further suggested that seeing as a number of SOEs had already become publicly listed companies, the SOE holding-company plan had to adhere to current capital-market procedures. At least three regulations must be considered here, specifically Capital Market and Financial Institutions Supervisory Agency (Bapepam-LK) Regulation No. IX.H.1, Bapepam-LK Regulation No. IX.G.1, and Bapepam-LK Regulation No. IX.F.1.
“Although there has been no significant impact as yet, we must be careful when publicly listed companies are involved. There are capital-market regulations that must be adhered to. Firstly, we must confirm the necessary type of corporate action to be taken: is it a dissolution, an acquisition, or a merger? Each type of corporate action is governed by separate Bapepam-LK Regulations. Obviously, any corporate action must be undertaken in a transparent way and also adhere to the prescribed procedures,” concluded Mr. Aziz.
Dian Puji Simatupang, a Public Finance and State Budget Law Lecturer from Universitas Indonesia’s Faculty of Law, is of the same opinion as Mr. Aziz as regards the legal status of SOEs. Mr. Simatupang asserted that the current regulatory framework was indeed very complex, especially as it relates to the realms of state finance and capital, and that the legal status of SOEs is clearly related to this policy.
“For Indonesia, holding or not holding is not the issue. The issue is the fact that the legal status of SOEs remains over-regulated,” asserted Mr. Simatupang in an interview with hukumonline.
Mr. Simatupang further asserted that ideally, only parent companies would be acknowledged as SOEs. This is in contrast with the current practice, whereby state financing is channeled to the parent company, its subsidiary companies, and even to subsidiary companies of subsidiary companies.
Legal status, as it relates to SOE holding-company policy, has thus become an essential matter that needs resolving, as the absence of any strictly defined legal status will mean that the implementing regulation for SOE holding companies will ultimately become vague and unclear.
“Such complexities need to be ironed out. No matter what measures are taken, the legal status of SOE financing must be made clear,” Mr. Simatupang concluded.
With this end in mind, the Ministry of State-Owned Enterprises plans to establish 15 SOE holding companies across seven sectors as part of the SOE Roadmap for the 2015-2019 Period. The seven sectors in question are trade and logistics, plantations, pharmaceuticals, shipping, construction and infrastructure, mining, and strategic defense. Furthermore, the government is also planning to remove 34 subsidiary companies from the current total of 119, meaning that 85 subsidiary companies will remain.
This plan, however, must be addressed and implemented cautiously, due to the possibility of various legal issues arising. Muhammad Faiz Aziz, a researcher from the Indonesian Center for Law and Policy Studies (Pusat Studi Hukum dan Kebijakan Indonesia – PSHK), asserts that at least three possible issues may arise as regards this matter.
The first issue highlighted by Mr. Aziz relates to the legal status of SOEs. According to Aziz, the definition of SOEs stipulated under Article 1.1 of Law No. 19 of 2003 on State-Owned Enterprises (SOE Law) only acknowledges SOE holding companies as SOEs. Under this provision, subsidiary companies of SOE holding companies do not constitute SOEs, and this is specifically prescribed in the phrase “…direct (capital) participation that originates from a separation of state assets”.
“If solely defined by the phrase ‘direct capital participation’, then only holding companies can be acknowledged [as SOEs], because [any capital participation by] subsidiary companies is not direct, but is tiered,” explained Mr. Aziz from his office in an interview held with hukumonline on Wednesday, 10 February 2016.
If the government wishes for subsidiary companies to also be acknowledged as SOEs, then the definition of SOEs prescribed under the SOE Law must be amended. Mr. Aziz insisted that an amendment may clarify the legal status of SOE subsidiary companies, as regards the limits of the country’s capital-participation engagement in SOEs and their subsidiary companies.
Mr. Aziz expressed his firm belief that any amendment may affect the current debate as regards the extent to which state assets can be injected to subsidiary companies, due to the fact that SOE subsidiary companies often enjoys “preferential treatment” much as SOEs themselves do. By way of example, SOE subsidiary companies often enjoy preferential treatment when procuring goods and services or when undergoing financial auditing.
Unfortunately, Mr. Aziz was unable to define which legal status would be more suitable for SOE holding companies, due to the fact that the fundamental governmental policy which should be incorporated into the SOE Roadmap for the 2015-2019 Period has yet to be signed into law by President Joko Widodo. However, Mr. Aziz believes that a clearly defined legal status as regards SOEs is an absolute necessity, even if an SOE holding-company policy does not yet exist.
A second potential issue that may arise relates to the uncompetitive business practices stipulated under Law No. 5 of 1999 on the Prohibition of Monopolies and Unfair Business Practices (Monopolies Law). According to Mr. Aziz, this potential issue relates to the concepts of oligopoly, the division of territory, trust, vertical integration, and stock ownership, as well as to mergers, consolidations, and acquisitions.
“This issue needs to be carefully examined in detail as it [an SEO holding company] may be constituted by a merger, consolidation, or acquisition, or, on the other hand, it could also constitute an oligopoly, or a trust,” asserted Mr. Aziz.
Mr. Aziz believes that only the Business Competition Oversight Commission (KPPU) has the authority to determine SEO holding companies from the perspective of business competition, as prescribed under Article 35, point (e) of the Monopolies Law. Mr. Aziz therefore suggests that the government and the KPPU cooperate as regards the issue of SOE holding companies, especially in relation to the issue of business competition.
“It is preferable that whenever the government intends to engage in an activity that constitutes a corporate action, they first seek advice from the relevant stakeholders in order to avoid violating the law. In this case, the government should take an active approach, in light of the fact that this initiative comes from the government and not from business,” asserted Mr. Aziz.
A third and final potential issue, according to Mr. Aziz, relates to conformity with the laws which govern the capital-market sector. Mr. Aziz revealed that out of a total of 119 currently existing SOEs, some have inevitably become publicly listed companies (perusahaan terbuka, usually sporting “Tbk” behind their company names). Any SOE holding-company plan must therefore also provide sufficient protection for investors.
“We mustn’t forget to assess in detail whether it [the SOE holding-company plan] will end up affecting stock ownership or not,” asserted Mr. Aziz.
Mr. Aziz further suggested that seeing as a number of SOEs had already become publicly listed companies, the SOE holding-company plan had to adhere to current capital-market procedures. At least three regulations must be considered here, specifically Capital Market and Financial Institutions Supervisory Agency (Bapepam-LK) Regulation No. IX.H.1, Bapepam-LK Regulation No. IX.G.1, and Bapepam-LK Regulation No. IX.F.1.
“Although there has been no significant impact as yet, we must be careful when publicly listed companies are involved. There are capital-market regulations that must be adhered to. Firstly, we must confirm the necessary type of corporate action to be taken: is it a dissolution, an acquisition, or a merger? Each type of corporate action is governed by separate Bapepam-LK Regulations. Obviously, any corporate action must be undertaken in a transparent way and also adhere to the prescribed procedures,” concluded Mr. Aziz.
Dian Puji Simatupang, a Public Finance and State Budget Law Lecturer from Universitas Indonesia’s Faculty of Law, is of the same opinion as Mr. Aziz as regards the legal status of SOEs. Mr. Simatupang asserted that the current regulatory framework was indeed very complex, especially as it relates to the realms of state finance and capital, and that the legal status of SOEs is clearly related to this policy.
“For Indonesia, holding or not holding is not the issue. The issue is the fact that the legal status of SOEs remains over-regulated,” asserted Mr. Simatupang in an interview with hukumonline.
Mr. Simatupang further asserted that ideally, only parent companies would be acknowledged as SOEs. This is in contrast with the current practice, whereby state financing is channeled to the parent company, its subsidiary companies, and even to subsidiary companies of subsidiary companies.
Legal status, as it relates to SOE holding-company policy, has thus become an essential matter that needs resolving, as the absence of any strictly defined legal status will mean that the implementing regulation for SOE holding companies will ultimately become vague and unclear.
“Such complexities need to be ironed out. No matter what measures are taken, the legal status of SOE financing must be made clear,” Mr. Simatupang concluded.
(rfs/sp)
Marcell Sihombing, Nando Narendra
The government has recently been preparing the groundwork for the establishment of state-owned enterprises (SOE) holding companies. The hope is that these companies will ultimately consolidate SOEs according to their core business sectors.
With this end in mind, the Ministry of State-Owned Enterprises plans to establish 15 SOE holding companies across seven sectors as part of the SOE Roadmap for the 2015-2019 Period. The seven sectors in question are trade and logistics, plantations, pharmaceuticals, shipping, construction and infrastructure, mining, and strategic defense. Furthermore, the government is also planning to remove 34 subsidiary companies from the current total of 119, meaning that 85 subsidiary companies will remain.
This plan, however, must be addressed and implemented cautiously, due to the possibility of various legal issues arising. Muhammad Faiz Aziz, a researcher from the Indonesian Center for Law and Policy Studies (Pusat Studi Hukum dan Kebijakan Indonesia – PSHK), asserts that at least three possible issues may arise as regards this matter.
The first issue highlighted by Mr. Aziz relates to the legal status of SOEs. According to Aziz, the definition of SOEs stipulated under Article 1.1 of Law No. 19 of 2003 on State-Owned Enterprises (SOE Law) only acknowledges SOE holding companies as SOEs. Under this provision, subsidiary companies of SOE holding companies do not constitute SOEs, and this is specifically prescribed in the phrase “…direct (capital) participation that originates from a separation of state assets”.
“If solely defined by the phrase ‘direct capital participation’, then only holding companies can be acknowledged [as SOEs], because [any capital participation by] subsidiary companies is not direct, but is tiered,” explained Mr. Aziz from his office in an interview held with hukumonline on Wednesday, 10 February 2016.
If the government wishes for subsidiary companies to also be acknowledged as SOEs, then the definition of SOEs prescribed under the SOE Law must be amended. Mr. Aziz insisted that an amendment may clarify the legal status of SOE subsidiary companies, as regards the limits of the country’s capital-participation engagement in SOEs and their subsidiary companies.
Mr. Aziz expressed his firm belief that any amendment may affect the current debate as regards the extent to which state assets can be injected to subsidiary companies, due to the fact that SOE subsidiary companies often enjoys “preferential treatment” much as SOEs themselves do. By way of example, SOE subsidiary companies often enjoy preferential treatment when procuring goods and services or when undergoing financial auditing.
Unfortunately, Mr. Aziz was unable to define which legal status would be more suitable for SOE holding companies, due to the fact that the fundamental governmental policy which should be incorporated into the SOE Roadmap for the 2015-2019 Period has yet to be signed into law by President Joko Widodo. However, Mr. Aziz believes that a clearly defined legal status as regards SOEs is an absolute necessity, even if an SOE holding-company policy does not yet exist.
A second potential issue that may arise relates to the uncompetitive business practices stipulated under Law No. 5 of 1999 on the Prohibition of Monopolies and Unfair Business Practices (Monopolies Law). According to Mr. Aziz, this potential issue relates to the concepts of oligopoly, the division of territory, trust, vertical integration, and stock ownership, as well as to mergers, consolidations, and acquisitions.
“This issue needs to be carefully examined in detail as it [an SEO holding company] may be constituted by a merger, consolidation, or acquisition, or, on the other hand, it could also constitute an oligopoly, or a trust,” asserted Mr. Aziz.
Mr. Aziz believes that only the Business Competition Oversight Commission (KPPU) has the authority to determine SEO holding companies from the perspective of business competition, as prescribed under Article 35, point (e) of the Monopolies Law. Mr. Aziz therefore suggests that the government and the KPPU cooperate as regards the issue of SOE holding companies, especially in relation to the issue of business competition.
“It is preferable that whenever the government intends to engage in an activity that constitutes a corporate action, they first seek advice from the relevant stakeholders in order to avoid violating the law. In this case, the government should take an active approach, in light of the fact that this initiative comes from the government and not from business,” asserted Mr. Aziz.
A third and final potential issue, according to Mr. Aziz, relates to conformity with the laws which govern the capital-market sector. Mr. Aziz revealed that out of a total of 119 currently existing SOEs, some have inevitably become publicly listed companies (perusahaan terbuka, usually sporting “Tbk” behind their company names). Any SOE holding-company plan must therefore also provide sufficient protection for investors.
“We mustn’t forget to assess in detail whether it [the SOE holding-company plan] will end up affecting stock ownership or not,” asserted Mr. Aziz.
Mr. Aziz further suggested that seeing as a number of SOEs had already become publicly listed companies, the SOE holding-company plan had to adhere to current capital-market procedures. At least three regulations must be considered here, specifically Capital Market and Financial Institutions Supervisory Agency (Bapepam-LK) Regulation No. IX.H.1, Bapepam-LK Regulation No. IX.G.1, and Bapepam-LK Regulation No. IX.F.1.
“Although there has been no significant impact as yet, we must be careful when publicly listed companies are involved. There are capital-market regulations that must be adhered to. Firstly, we must confirm the necessary type of corporate action to be taken: is it a dissolution, an acquisition, or a merger? Each type of corporate action is governed by separate Bapepam-LK Regulations. Obviously, any corporate action must be undertaken in a transparent way and also adhere to the prescribed procedures,” concluded Mr. Aziz.
Dian Puji Simatupang, a Public Finance and State Budget Law Lecturer from Universitas Indonesia’s Faculty of Law, is of the same opinion as Mr. Aziz as regards the legal status of SOEs. Mr. Simatupang asserted that the current regulatory framework was indeed very complex, especially as it relates to the realms of state finance and capital, and that the legal status of SOEs is clearly related to this policy.
“For Indonesia, holding or not holding is not the issue. The issue is the fact that the legal status of SOEs remains over-regulated,” asserted Mr. Simatupang in an interview with hukumonline.
Mr. Simatupang further asserted that ideally, only parent companies would be acknowledged as SOEs. This is in contrast with the current practice, whereby state financing is channeled to the parent company, its subsidiary companies, and even to subsidiary companies of subsidiary companies.
Legal status, as it relates to SOE holding-company policy, has thus become an essential matter that needs resolving, as the absence of any strictly defined legal status will mean that the implementing regulation for SOE holding companies will ultimately become vague and unclear.
“Such complexities need to be ironed out. No matter what measures are taken, the legal status of SOE financing must be made clear,” Mr. Simatupang concluded.
With this end in mind, the Ministry of State-Owned Enterprises plans to establish 15 SOE holding companies across seven sectors as part of the SOE Roadmap for the 2015-2019 Period. The seven sectors in question are trade and logistics, plantations, pharmaceuticals, shipping, construction and infrastructure, mining, and strategic defense. Furthermore, the government is also planning to remove 34 subsidiary companies from the current total of 119, meaning that 85 subsidiary companies will remain.
This plan, however, must be addressed and implemented cautiously, due to the possibility of various legal issues arising. Muhammad Faiz Aziz, a researcher from the Indonesian Center for Law and Policy Studies (Pusat Studi Hukum dan Kebijakan Indonesia – PSHK), asserts that at least three possible issues may arise as regards this matter.
The first issue highlighted by Mr. Aziz relates to the legal status of SOEs. According to Aziz, the definition of SOEs stipulated under Article 1.1 of Law No. 19 of 2003 on State-Owned Enterprises (SOE Law) only acknowledges SOE holding companies as SOEs. Under this provision, subsidiary companies of SOE holding companies do not constitute SOEs, and this is specifically prescribed in the phrase “…direct (capital) participation that originates from a separation of state assets”.
“If solely defined by the phrase ‘direct capital participation’, then only holding companies can be acknowledged [as SOEs], because [any capital participation by] subsidiary companies is not direct, but is tiered,” explained Mr. Aziz from his office in an interview held with hukumonline on Wednesday, 10 February 2016.
If the government wishes for subsidiary companies to also be acknowledged as SOEs, then the definition of SOEs prescribed under the SOE Law must be amended. Mr. Aziz insisted that an amendment may clarify the legal status of SOE subsidiary companies, as regards the limits of the country’s capital-participation engagement in SOEs and their subsidiary companies.
Mr. Aziz expressed his firm belief that any amendment may affect the current debate as regards the extent to which state assets can be injected to subsidiary companies, due to the fact that SOE subsidiary companies often enjoys “preferential treatment” much as SOEs themselves do. By way of example, SOE subsidiary companies often enjoy preferential treatment when procuring goods and services or when undergoing financial auditing.
Unfortunately, Mr. Aziz was unable to define which legal status would be more suitable for SOE holding companies, due to the fact that the fundamental governmental policy which should be incorporated into the SOE Roadmap for the 2015-2019 Period has yet to be signed into law by President Joko Widodo. However, Mr. Aziz believes that a clearly defined legal status as regards SOEs is an absolute necessity, even if an SOE holding-company policy does not yet exist.
A second potential issue that may arise relates to the uncompetitive business practices stipulated under Law No. 5 of 1999 on the Prohibition of Monopolies and Unfair Business Practices (Monopolies Law). According to Mr. Aziz, this potential issue relates to the concepts of oligopoly, the division of territory, trust, vertical integration, and stock ownership, as well as to mergers, consolidations, and acquisitions.
“This issue needs to be carefully examined in detail as it [an SEO holding company] may be constituted by a merger, consolidation, or acquisition, or, on the other hand, it could also constitute an oligopoly, or a trust,” asserted Mr. Aziz.
Mr. Aziz believes that only the Business Competition Oversight Commission (KPPU) has the authority to determine SEO holding companies from the perspective of business competition, as prescribed under Article 35, point (e) of the Monopolies Law. Mr. Aziz therefore suggests that the government and the KPPU cooperate as regards the issue of SOE holding companies, especially in relation to the issue of business competition.
“It is preferable that whenever the government intends to engage in an activity that constitutes a corporate action, they first seek advice from the relevant stakeholders in order to avoid violating the law. In this case, the government should take an active approach, in light of the fact that this initiative comes from the government and not from business,” asserted Mr. Aziz.
A third and final potential issue, according to Mr. Aziz, relates to conformity with the laws which govern the capital-market sector. Mr. Aziz revealed that out of a total of 119 currently existing SOEs, some have inevitably become publicly listed companies (perusahaan terbuka, usually sporting “Tbk” behind their company names). Any SOE holding-company plan must therefore also provide sufficient protection for investors.
“We mustn’t forget to assess in detail whether it [the SOE holding-company plan] will end up affecting stock ownership or not,” asserted Mr. Aziz.
Mr. Aziz further suggested that seeing as a number of SOEs had already become publicly listed companies, the SOE holding-company plan had to adhere to current capital-market procedures. At least three regulations must be considered here, specifically Capital Market and Financial Institutions Supervisory Agency (Bapepam-LK) Regulation No. IX.H.1, Bapepam-LK Regulation No. IX.G.1, and Bapepam-LK Regulation No. IX.F.1.
“Although there has been no significant impact as yet, we must be careful when publicly listed companies are involved. There are capital-market regulations that must be adhered to. Firstly, we must confirm the necessary type of corporate action to be taken: is it a dissolution, an acquisition, or a merger? Each type of corporate action is governed by separate Bapepam-LK Regulations. Obviously, any corporate action must be undertaken in a transparent way and also adhere to the prescribed procedures,” concluded Mr. Aziz.
Dian Puji Simatupang, a Public Finance and State Budget Law Lecturer from Universitas Indonesia’s Faculty of Law, is of the same opinion as Mr. Aziz as regards the legal status of SOEs. Mr. Simatupang asserted that the current regulatory framework was indeed very complex, especially as it relates to the realms of state finance and capital, and that the legal status of SOEs is clearly related to this policy.
“For Indonesia, holding or not holding is not the issue. The issue is the fact that the legal status of SOEs remains over-regulated,” asserted Mr. Simatupang in an interview with hukumonline.
Mr. Simatupang further asserted that ideally, only parent companies would be acknowledged as SOEs. This is in contrast with the current practice, whereby state financing is channeled to the parent company, its subsidiary companies, and even to subsidiary companies of subsidiary companies.
Legal status, as it relates to SOE holding-company policy, has thus become an essential matter that needs resolving, as the absence of any strictly defined legal status will mean that the implementing regulation for SOE holding companies will ultimately become vague and unclear.
“Such complexities need to be ironed out. No matter what measures are taken, the legal status of SOE financing must be made clear,” Mr. Simatupang concluded.
(rfs/sp)