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.
