After many months of rumor and oftentimes ill-informed comment, Bank Indonesia (“BI”), the country’s central bank, has issued Regulation 14/8/PBI/2012 (“Regulation”), which imposes caps on the ownership of Indonesia’s conventional and Shariah commercial banks. Local branches of overseas-domiciled banks are expressly excluded from the ambit of the Regulation.
Prior to the issuance of the Regulation, much discussion revolved around fears that growing protectionist sentiment would lead to foreign investors being shut out of the domestic banking sector, and the possibility of such exclusion being applied retroactively.
Such dire predictions have not come to pass. Nevertheless, the Regulation makes significant changes to the banking landscape, imposing ownership caps ranging from as low as 20 percent to as high as 40 percent on both Indonesian and non-Indonesian investors alike. However, the Regulation also provides for considerable flexibility in the form of wide-ranging authority to grant exemptions on the part of BI
As regards the question of whether particular provisions apply to existing shareholders only, new entrants only, or both existing shareholders and new entrants, the Regulation unfortunately suffers from a pronounced lack of clarity, although it appears that for the most part it is intended to apply to existing shareholders and new investors. As is the normal practice, it is expected that BI will issue Circular Notices to clarify policy in this regard.
Prior to the coming into effect of the Regulation, a foreign investor could own up to 99 percent of the issued and paid-up capital of an Indonesian commercial bank. Such a high ownership level can be traced back to the Asian financial crisis of 1997/1998, and the Government’s desperation at that time to attract new investors to recapitalize the decimated domestic banking industry. No restrictions at all were imposed on the ownership of banks by Indonesian entities and individuals.
In the Elucidation on the Regulation, the central bank states that tighter ownership rules are necessary due to (i) the increasing competition in the banking sector that will result from integration of the Asian financial sector in 2020, (ii) the need to enhance good corporate governance; and (iii) the adverse implications of ownership being concentrated in a single shareholder.
New Ownership Caps
First and foremost, the new ownership caps are of general applicability to both Indonesian and non-Indonesian entities and individuals. Different maximum ownership limits are imposed in respect of three categories of shareholder (Article 2(2)):
(a) Maximum 40% ownership in the case of both bank and non-bank financial institutions (non bank financial institutions include finance companies, insurance companies and pension funds);
(b) Maximum 30% ownership in the case of legal entities other than financial institutions (includes special purpose vehicles, funds and hedge funds); and
(c) Maximum 20% ownership in the case of Individual shareholders (25% in the case of an investment by an individual shareholder in a Shariah bank)
The maximum ownership limits do not apply to central government-owned banks and ailing banks rescued by the Indonesian Deposit Insurance Corporation (LPS). Thus, Indonesia’s extensive state ownership in the banking sector remains unaffected, while the LPS is able to maintain its ownership of a rescued bank until such time as a suitable buyer is found.
In addition to shareholder categories, the Regulation (Article 4) also applies the aforesaid ownership caps to two or more shareholders that:
(1) are linked by a relationship of ownership;
(2) are linked by a familial relationship (up to the second degree); and/or
(3) are acting in concert, whether based on a written or unwritten agreement.
In such situations, the shareholders concerned shall be treated as a single entity.
Besides complying with other relevant BI regulations (particularly those on the fit-and-proper test process), Article 5 of the Regulation provides that a potential non-Indonesian controlling shareholder must also:
a. be committed to supporting the development of the Indonesian economy through the bank it owns;
b. in the case of a financial institution, present a recommendation from the financial services authority in its country of origin; and
c. satisfy the ratings requirements stipulated in Article 5(c), namely:
(i) one notch above the lowest investment grade in the case of a potential controlling shareholder that is a bank;
(ii) two notches above the lowest investment grade in the case of a potential controlling shareholder that is a non-bank financial institution; and
(iii) three notches above the lowest investment grade in the case of a potential controlling shareholder that is not a financial institution.
The said ratings refer to those issued by ratings agencies recognized by BI based on Bank Indonesia Circular No. 13/31/DPNP.
Exemption from the 40% Ownership Cap
The Regulation expressly provides that BI may grant exemptions so that an investor in the form of a bank may own more than 40 percent of a target bank, provided that certain conditions are complied with by both the investor bank and target bank. It should be noted that this exemption only applies to investors in the form of banks (Article 6(1)). The relevant conditions are as set out below:
1. Requirements for ownership of more than 40% stake in target bank by investor bank (Article 6(1))
The investor bank must:
2. Minimum requirements for target bank to be more than 40% owned by investor bank (Article 7)
The target bank must go public, with retail investors owning not less than 20% of the bank’s capital, within 5 years of the bank’s shares being acquired by the investor bank based on the relevant BI investment approval.
3. Procedure for acquisition of stake in excess of 40% (Article 8)
An investor bank may only acquire a stake in excess of 40 percent based on the following scheme:
The overall rules governing the practical implementation of the Regulation may generally be summarized as follows:
Article 10 of the Regulation specifically states that a shareholder (whether in the form of a bank, non-bank financial institution or private investor) may continue to freely increase its shareholding in a bank up until 31 December 2013, subject to the proviso that its shareholding in the bank will be subject to evaluation based on the condition of the bank as per December 2013. If the bank is found to have a Soundness and/or GCG rating of 3 or worse per December 2013, then the ownership caps will apply. Conversely, if the bank has a Soundness and/or GCG rating of 1 or 2 per December 2013, then the shareholder may maintain its current shareholding in the bank.
The exemption in paragraph 3 above does not apply in the following circumstances:
Timeframe for Compliance with Ownership Caps
An investor to which an ownership cap applies and which is unable to avail of an exemption has five years counting from 1 January 2014 to bring itself into compliance with the requirements of the Regulation. Should a private sale by another shareholder of the bank (non-corporate action) mean that an investor falls foul of the maximum ownership limits, the investor will also have 5 years from the date of the operative transaction to comply with the ownership restrictions.
These time limits may be extended by between 10 and 20 years in the case of:
Obligations of bank should investor fail to comply with the Regulation
Should an investor in a bank fail to comply with the provisions of the Regulation, the bank is required to:
Sanctions for non-compliance by investor
An investor that fails to comply with the Regulation’s requirements is subject to the following sanctions:
Sanctions for non-compliance by bank:
Despite tightening up bank ownership requirements, it is clear that Bank Indonesia has refrained from succumbing to extreme protectionist sentiment, and instead has introduced a relatively benign reform that should help to further strengthen the domestic banking industry, while at the same time leaving the door open to significant foreign ownership. While the worries prior to the issuance of the Regulation primarily concerned restrictions on foreign ownership, the fact that the permitted ownership levels for the most part apply to both Indonesian and non-Indonesian investors and are in most cases predicated upon a target bank’s financial health has greater implications for small and medium-scale Indonesian banks than the relatively well-run and well-capitalized foreign sector. The only real worry concerning the overall health of the banking industry that arises in relation to the Regulation is the sweeping discretion accorded to Bank Indonesia in determining whether or not a shareholder should be allowed to exceed the 40 percent ownership cap. It is to be earnestly hoped that the abuses that afflicted the banking sector in the past as a result of unfettered discretion will not be repeated in the future.
 Soundness Rating: Pursuant to Bank Indonesia Regulation No. 13/1/PBI/2011, BI periodically monitors the soundness of banks so as to assess the overall health of the national banking industry. The yardsticks employed consist of risk profile, good corporate governance, earnings and capital (abbreviated as RGEC).
 The precise purport of this requirement (Article 6(2)(f)) is somewhat unclear. However, it appears to be aimed at ensuring the investor agrees upfront to inject capital through the purchase of equity-based debt instruments issued by the bank should the bank suffer a capital shortfall.
 Good Corporate Governance Rating: The rules governing the application and assessment of good corporate governance in the banking sector are set out in Bank Indonesia Regulations 8/4/PBI/2006 (as amended) in the case of the conventional sector, and No. 11/33/PBI/2009 for the Shariah sector, as well as in related BI Circulars.
AHP Client Alert is a publication of Assegaf Hamzah & Partners. It brings an overview of selected Indonesian laws and regulations to the attention of clients but is not intended to be viewed or relied upon as legal advice. Clients should seek advice of qualified Indonesian legal practitioners with respect to the precise effect of the laws and regulations referred to in AHP Client Alert. Whilst care has been taken in the preparation of AHP Client Alert, no warranty is given as to the accuracy of the information it contains and no liability is accepted for any statement, opinion, error or omission.