INDONESIA Law and Practice Contributed by: Chandrawati Dewi, Gustaaf Reerink and Bilal Anwari, ABNR Counsellors at Law
Subsequently, taking into account the coun - ter-proposal, the panel will issue a conditional approval that requires the notifying party to accept the remedies. Although the notifying party can submit a counter-proposal, the author - ity to decide on the type of remedies and the timeline for the implementation rests with the KPPU panel. 5.5 Conditions and Timing for Divestitures As Indonesia has a post-merger notification regime, a transaction will be legally effective by the time any remedies for divestitures are imposed. The KPPU will specify the timeline for complying with the remedies. For behavioural remedies, compliance is required for three years. If an undertaking fails to comply with a con - ditional approval that imposes remedies, the KPPU can initiate an investigation for alleged violation of the Competition Law, which may result in penalties of IDR1 billion (approximately USD61,000) per day, with a maximum of IDR25 billion (approximately USD1.525 million). How - ever, to the authors’ knowledge, the KPPU has never imposed penalties or sanctions due to a party’s failure to comply with its remedies. 5.6 Issuance of Decisions Unlike in other jurisdictions, in Indonesia a merger notification does not result in the KPPU issuing a formal decision to permit or prohibit a transaction. Instead, the KPPU will issue a non- binding opinion, which can be: • no allegation of monopolistic practice or unfair business competition; • an allegation of monopolistic practice or unfair business competition with conditional approval; or
• an allegation of monopolistic practice or unfair business competition. As mentioned in 5.4 Negotiating Remedies With Authorities , if the KPPU’s review indicates that the transaction could result in monopolistic practices or unhealthy business competition, it may issue conditional approval, which requires the undertaking to accept certain remedies. Before 2019, the KPPU published its opinion on certain notifications. However, since 2019, the published information has been limited to the registration number, the date of the notification, the identity of the acquirer and the target, and the status of the notification (completed or under review). 5.7 Prohibitions and Remedies for Foreign-to-Foreign Transactions To the best of the authors’ knowledge, the KPPU has never implemented structural remedies or prohibited transactions. The KPPU has imposed behavioural remedies, usually involving reporting obligations, in at least five cases – none of which involved foreign-to foreign transactions. 6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications The KPPU’s opinion does not extend to related arrangements (ancillary restraints).
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