Indonesia: Asia Pacific Competition Highlights, Q2 2021

In brief

  • Indonesian Competition Commission applies new sentencing guidelines
  • Courts begin to hear appeals on antitrust decisions under amended rules

The ICC started applying the new criteria for sentencing under a government regulation that takes effect in late February 2021. Courts have handed out their first competition law appeal decisions under the Omnibus Law of 2020, but so far not much have changed in terms of process or substance.


​​​​​​This update was published in July 2021, as part of our quarterly newsletter, Asia Pacific Competition Highlights. Click here to access the full report, which covers the most notable antitrust developments across 10 Asia Pacific jurisdictions.


Indonesian Competition Commission applies new sentencing guidelines

The Indonesian Competition Commission (ICC) has begun to apply the new criteria for sentencing under a Government Regulation that took effect in late February 2021.

In late February 2021, the Indonesian Government issued a regulation requiring the ICC to consider mitigating factors in imposing administrative fines, including (i) whether the accused party has a compliance initiative, (ii) whether the violation was done intentionally, (iii) whether the accused has committed the same violation in the past, (iv) whether the accused initiated the violation, (v) whether the accused has voluntarily stopped its violation, and (vi) whether the violation has a significant impact on competition.

The ICC has started referring to those mitigating factors in its decision. For example, in April 2021, the ICC imposed a minimum fine of IDR1 billion (approximately US$70,000) on Orix Corporation's late filing of its acquisition of SMS Finance, citing Orix's implementation of an antitrust compliance program, its lack of intent to violate, and the absence of significant impact on competition.

Likewise in its decision dated 12 April 2021 on the late filing of the acquisition of Dei Holdings Limited by Travel Circle International, the ICC imposed a minimum penalty of IDR 1 billion (approximately US$70,000). It cited the lack of intent and lack of negative impact on competition as mitigating factors.

The above decisions show the importance of having a compliance program and having a strong economic case when facing antitrust enforcement actions in Indonesia.


Courts begin to hear appeals on antitrust decisions under amended rules

The Commercial Courts have handed out their first competition law appeal decisions under the Omnibus Law of 2020, but not much have changed in terms of process or substance.

The Omnibus Law of 2020 transfers the authority to try appeals to the decisions of the ICC from the Civil Court to the Commercial Court. In February 2021 a Government Regulation implementing this law specifies that the Commercial Court's review of the appeal should last between three months to a year and should cover both substantive and procedural aspects. These provisions give hope that the Omnibus Law would improve the appeal proceedings which were previously characterised by lack of due process due to requirements that the Court must completed its examination and issue a decision within 30 days.

Since the promulgation of the Omnibus Law of 2020, four cases have gone through the appeal stage at various Commercial Courts in Indonesia. Whether there will be improvements in due process remains to be seen. The first appeals were decided within three months, with the Courts evidently still adhering to the old 30 days' deadline. Later appeals were decided within less than four months from their registration. These timelines show that the Commercial Courts have not taken up the opportunity to examine the case dossier in detail despite an extended review period of up to one year.

Contact Information
Wimbanu Widyatmoko
Principal at BakerMcKenzie
Mochamad Fachri
Associate Partner at BakerMcKenzie

Copyright © 2023 Baker & McKenzie. All rights reserved. Ownership: This documentation and content (Content) is a proprietary resource owned exclusively by Baker McKenzie (meaning Baker & McKenzie International and its member firms). The Content is protected under international copyright conventions. Use of this Content does not of itself create a contractual relationship, nor any attorney/client relationship, between Baker McKenzie and any person. Non-reliance and exclusion: All Content is for informational purposes only and may not reflect the most current legal and regulatory developments. All summaries of the laws, regulations and practice are subject to change. The Content is not offered as legal or professional advice for any specific matter. It is not intended to be a substitute for reference to (and compliance with) the detailed provisions of applicable laws, rules, regulations or forms. Legal advice should always be sought before taking any action or refraining from taking any action based on any Content. Baker McKenzie and the editors and the contributing authors do not guarantee the accuracy of the Content and expressly disclaim any and all liability to any person in respect of the consequences of anything done or permitted to be done or omitted to be done wholly or partly in reliance upon the whole or any part of the Content. The Content may contain links to external websites and external websites may link to the Content. Baker McKenzie is not responsible for the content or operation of any such external sites and disclaims all liability, howsoever occurring, in respect of the content or operation of any such external websites. Attorney Advertising: This Content may qualify as “Attorney Advertising” requiring notice in some jurisdictions. To the extent that this Content may qualify as Attorney Advertising, PRIOR RESULTS DO NOT GUARANTEE A SIMILAR OUTCOME. Reproduction: Reproduction of reasonable portions of the Content is permitted provided that (i) such reproductions are made available free of charge and for non-commercial purposes, (ii) such reproductions are properly attributed to Baker McKenzie, (iii) the portion of the Content being reproduced is not altered or made available in a manner that modifies the Content or presents the Content being reproduced in a false light and (iv) notice is made to the disclaimers included on the Content. The permission to re-copy does not allow for incorporation of any substantial portion of the Content in any work or publication, whether in hard copy, electronic or any other form or for commercial purposes.