Indonesian limited liability companies including state-owned enterprises (SOE) typically act as local sponsors and foreign legal entities or companies act as foreign sponsors. They then form a local subsidiary that will act as the project’s investment vehicle.
Export credit agencies, multilateral agencies, commercial banks, and non-bank financial institutions (both local and foreign) typically act as lenders for project finance in Indonesia.
The main regulations on public-private partnership (PPP) in Indonesia are as follows:
Type of Infrastructure and Form of Co-operation
Types of infrastructure that can be developed with PPP schemes in Indonesia under PR 38/2015 are transportation infrastructure, road infrastructure, water resources and irrigation infrastructure, water supply infrastructure, centralised and local waste-water management infrastructure systems, waste management infrastructure system, telecommunication and informatics infrastructure, electricity infrastructure, oil and gas and renewable energy infrastructure, energy conservation infrastructure, urban facilities infrastructure, education facilities infrastructure, sports and arts facilities and infrastructure, zone infrastructure (eg, industrial zones), tourism infrastructure, health infrastructure, penitentiary infrastructure and public housing infrastructure.
PR 38/2015 also stipulates that PPP may be conducted for infrastructure provision that comprises a combination of two or more types of infrastructure and may be partially financed by the government. Bappenas Regulation 4/2015 provides further elaboration on the combination of types of infrastructure projects in a PPP project as follows.
On the first point, the GCAs of the relevant infrastructure that will be developed under a PPP scheme must sign a memorandum of understanding (MoU) which at least contains the following.
The PPP scheme is conducted through a co-operation agreement (normally called a “PPP Agreement”) entered between the government contracting agency, which can be the Minister/Head of Institution/Head of Regional Government, or State-Owned Enterprise (SOE)/Regional Owned Enterprise (GCA) as provider or administrator of the infrastructure based on the laws and regulations and the implementing business entity (IBE) appointed by the GCA through a tender process.
The PPP Agreement must specify, among other things, the project scope, period of the partnership, an implementation/operation warranty, tariff and the adjustment mechanism, rights and obligations (including risk allocation), performance standards, dispute resolution mechanism, and a supervision method. A PPP project can be identified, and the preparation of the project can be conducted, by either the GCA (solicited project) or the private sector (unsolicited project). Nevertheless, the appointment of the IBE for both solicited and unsolicited PPP projects must be by way of public and transparent bidding or tender.
In brief, PPP schemes in Indonesia consist of four phases.
This phase is predominantly done by the GCA. The GCA will identify the viable project from a list of projects proposed by the Indonesian government, conduct preliminary study (which covers, among others, form, scheme and source of financing) and public consultation.
This phase covers the formulation of the pre-feasibility study, proposal for project location determination and market sounding. The GCA will analyse land required for the project and, if so, it will prepare the land procurement documents. During this phase, the GCA may also submit a proposal for government guarantee and/or support to be approved by the Minister of Finance and/or through PT Penjaminan Infrastruktur Indonesia (Persero) (or in English, the Indonesia Infrastructure Guarantee Fund, or IIGF) prior to the completion of the pre-feasibility study.
This phase covers market sounding, project location determination, procurement of IBE, signing of PPP agreement and financial close of the project.
Once the PPP agreement has been signed and IBE has been financed, the construction of the project will commence.
Solicited Versus Unsolicited PPP Projects
There are two ways to initiate PPP projects in Indonesia: solicited and unsolicited PPP projects. In Indonesia, solicited PPP projects are more common, whereby the GCA initiates the provision of infrastructure in co-operation with a private business entity (thus making it a solicited PPP). While not as common as solicited PPP projects, it is still possible for a business entity (the “Initiator”) to propose a PPP initiative to the GCA (“Unsolicited PPP”) for certain types of infrastructure, provided that such provision of infrastructure fulfils the following criteria:
In an Unsolicited PPP, the Initiator shall first submit a letter of intent which includes the pre-feasibility documents for the project to the GCA. The GCA would then assess the submitted documents and should decide on the result within 30 business days. In assessing the documents, the GCA may undertake a public consultation to gather input from the public on the proposed PPP project. Should the GCA approve the proposal, it shall instruct the Initiator to proceed with preparation of the feasibility study.
After the Initiator completes its feasibility study, it shall submit the documents (along with pre-qualification documents) to the GCA for assessment. The GCA should then make its assessment of the submitted feasibility study documents based on several criteria, including whether the project should not necessitate government support in the form of financial contribution. This assessment should be completed within 60 business days as of receipt of the documents. If the feasibility study is approved and the Initiator or the implementing business entity has passed the qualification, the GCA shall issue, among others: (i) its approval of the feasibility study; and (ii) stipulation that the PPP project proposal is an Unsolicited PPP project.
In addition to the above, there are several benefits/privileges (compensation) that may be given to the Initiator, as follows:
The form of compensation above shall be clearly set out in the GCA’s approval.
Return of Investment for IBE
There are three types of return on investment (ROI) in PPP projects, namely (i) tariff, (ii) availability payment, and (iii) other types of ROI if they are not in contradiction with the applicable laws.
Benefit of PPP
The following benefits may be available for a PPP project.
Non-recourse or limited recourse debt financing are predominantly opted for in project finance in Indonesia.
The projects are typically financed by a combination of debt and equity (paid-up capital or shareholder loans). Debt-to-equity ratios vary depending on the sectors being financed, but it is typically at a ratio of 75:25. The debt portion is mostly funded by bank loans (offshore or onshore). Corporate bonds, project bonds and securitisation of existing projects revenues are increasingly used to fund new infrastructure projects such as through the issuance of green bonds to fund sustainable projects.
The infrastructure, energy and industry sectors (such as smelting, electric cars and batteries) are expected to continue to be more active in Indonesia in the coming year.
Type of Security Interest
Security interests in Indonesia are generally limited to those prescribed by Indonesian law. The form of security interests available under Indonesian law are: (i) mortgage, fiduciary security and pledge for in rem security interests; and (ii) (corporate and personal) guarantees for personal security interests. In rem security interests are security interests which create preferential rights for the holder of the security even in bankruptcy.
Under strict legal interpretation in Indonesia, security interests under Indonesian law are limited to those described under the following laws and regulations:
There are no other instruments (contractually crafted) that can function as security; thus parties do not have complete freedom to determine security interests contractually. However, notwithstanding questions of validity, this “contractual security” is documented in practice. Contractual security in the form of contractual arrangements (such as a conditional assignment or novation of contractual rights and obligations for security purposes or powers of attorney) may be deemed invalid by Indonesian courts in that they may be considered a circumvention of the Indonesian security laws.
Assets Typically Subject to a Security Interest and the Corresponding Security Interest
The following summarises the assets of an Indonesian debtor typically requested by creditors to be part of the security package and the respective security interest that can and would normally be taken over each asset.
Creation and Perfection of Security Interest
The following summarises the creation and perfection process of in rem security interests in Indonesia.
Land mortgage (hak tanggungan)
A land mortgage is established through the signing of a mortgage deed in the Indonesian language before a land deed official where the land is located in Indonesia and registration with the E-Mortgage Deed Registration System.
The land mortgage will be established and finalised once the electronic mortgage certificate (E-Certificate) and annotation note are issued. This will be sent to the mortgagee via email. The annotation note must be printed and attached to the original land certificate or certificates.
Under the E-Mortgage regime, each lender or creditor must initially register itself in the E-Mortgage Party Registration System prior to the registration of the mortgage deed in the E-Mortgage Deed Registration System. The online mortgage registration system is only written in Bahasa Indonesia. Registration of lenders or creditors with the system may be burdensome for offshore creditors or lenders and may take a significant amount of time to complete.
Generally, no regulatory approval or consent is required to establish a mortgage. However, in the event that the land title held by the project company is granted upon land with management rights held by the government, the establishment of a mortgage may require approval from the relevant government institution, depending on the underlying arrangement for the land co-operation or utilisation agreement entered into between the project company and the relevant government institution as the basis to apply for the land title.
A fiducia security is established by entering into a written agreement and is signed before a notary to be made into a notarial deed form in Indonesian language. The concept of a fiducia security results in a transfer of legal title from the transferor to the transferee under the condition that the legal title will automatically return to the transferor upon full repayment of the relevant debt of the transferor or debtor. The transferee’s ownership of the fiduciary secured assets lasts as long as the relevant debt of the transferor or debtor to the transferee remains outstanding. The parties may also agree that actual re-transfer by the transferee to the transferor will only take place upon full payment of the relevant debt.
The fiducia security agreement must be registered (online) at the Fiducia Registration Office within 30 days of the date of the fiduciary transfer agreement. The fiducia security becomes effective on the date of registration, and upon acceptance of the registration application the fiduciary transferee will receive a Fiduciary Certificate issued by the Fiduciary Registration Office.
If within 30 days the fiducia security agreement is not registered, the parties must re-execute the fiducia security agreement. Other specific formalities (ie, notices and acknowledgements) are relevant for fiduciary security over receivables and fiduciary security over insurance proceeds.
A pledge is established by a deed of pledge setting forth the particulars of the pledge, which can be executed in a notarial deed form or privately.
With respect to tangible assets, the requirement for the establishment of a pledge is that the pledged asset is physically transferred out of the possession of the pledgor. The right of pledge will be discharged when the pledged asset is no longer kept under the control of the creditor. With respect to intangible movable assets, a notification must be made to whomever the assets or receivables would have to be paid.
With respect to a pledge of shares, the pledge must be registered in the shareholders register of the company. To create a pledge on listed shares, both the company and the Stock Administration Bureau must be notified of the pledge. This will be recorded in the shareholders register held by the Stock Administration Bureau. For blocked shares kept in the custody of the Indonesian Central Securities Depository (KSEI), a confirmation letter will be issued by them certifying that the shares are pledged.
With respect to a pledge of a bank account, the relevant bank must be notified of and acknowledge the pledge. The acknowledgement also serves to evidence the bank’s agreement to the provisions set out in the notice. In practice, a pledge of a bank account is normally supported by the power of attorney to manage bank accounts. This power of attorney, however, does not create an in rem security interest.
For contractual security in the form of Conditional Assignment and Assumption Agreement, the assignor is required to notify and obtain acknowledgement from the counterparties under the relevant contracts.
A security agent is authorised to sign security documents, manage the secured assets and enforce security on behalf of the lenders. However, there are differing views in terms of land mortgage as the law does not expressly acknowledge the taking of security by lenders as represented by security agent. Therefore, it is recommended that each lender be listed and registered as a mortgagee as well.
Indonesian security law does not recognise “floating charges” or other universal or similar security interest. In Indonesia, specific assets must be secured by a specific type of security.
Indonesian security can secure present and future assets of a company except for land mortgage. For fiducia security, however, the fiducia secured objects registered at the fiducia registration office must be updated at the Fiduciary Registration Office.
Generally, registering collateral security interests, such as fiducia security and land mortgage, are associated with registration fees or charges and Non-Tax State Revenue (PNBP) paid to the government. The PNBP tariff is subject to change from time to time.
The secured assets must be properly identified and listed in the security documents.
A company’s articles of association typically provide the necessary internal approval(s) required to be obtained before the company can grant any security or guarantee. In the context of a third-party security or guarantee, however, the validity of any legal act performed by an Indonesian company may be contested for the want of corporate benefit and compliance with its objects and purposes of its articles of association. There is uncertainty as to whether the issuance of a third-party guarantee or security by a company to secure the fulfilment of obligations of a third party can be regarded to be in furtherance of the objectives of the company (ultra vires doctrine) and, consequently, whether such guarantee or third-party security may be voidable or unenforceable under Indonesian law.
In determining whether the issuance of a third-party guarantee or security is in furtherance of the objectives of a third-party guarantor, it is important to consider the provisions of the articles of association of that third-party guarantor and whether that third-party guarantor derives certain commercial benefit from the transaction in respect of which the third-party guarantee is issued. Based on the ultra vires doctrine, the validity or enforceability can in principle only be challenged by that third-party guarantor itself, ie, arguably through (i) the shareholders of that third-party guarantor, (ii) the board of directors of that third-party guarantor or (iii) the board of commissioners of that third-party guarantor, or by a receiver or trustee in bankruptcy. By obtaining the written consent of all of the shareholders, board of directors and commissioners of the third-party guarantor authorising that third-party guarantor to enter into a third-party guarantee or security and confirming that such transaction is in the interests of that third-party guarantor, those parties should not be able to successfully challenge the validity or enforceability of that third-party guarantee or security on the basis of the ultra vires doctrine.
In addition, it should be noted that:
For fiducia security, the lender could check for other liens on their collateral via the online website of the fiducia registration office – noting that this is only possible for fiducia registration done after 5 March 2013 when the manual registration transitioned to online registration. For fiducia registration prior to 5 March 2013, manual checking is possible in theory but not in practice.
For land mortgage, the lender (with the company’s and notary’s assistance) could check through the relevant land office and obtain a statement letter confirming the land status.
No public registry is available for pledge of shares in a private company. Pledge of shares in a private company is recorded in the shareholder register of the relevant company and the lender typically asks for the latest shareholder register to confirm this. For pledge of shares in a public company, the lender could confirm this through the Stock Administration Bureau.
For pledge of bank accounts, no public registry is available.
Under Indonesian law, a security interest is accessory in nature and when the underlying claim is paid, expired or deemed null and void, the security interest also ceases to exist. However, typically, an Indonesian law release agreement is entered between the security agent and the obligors on the payoff date. The release agreement would also set out additional steps that will be required to effect the release and discharge of the Indonesian security documents as follows.
A secured lender can enforce its collateral upon an event of default based on the underlying agreement. Security interest in Indonesia can be enforced by way of public auction or private sale. In the event of default, theoretically, secured lenders may sell the secured assets without any court decision. However, in practice, the state auction body sometimes still requires a court decision or order to be provided before it will proceed with a public auction. The state auction body may even refuse the application of a public auction sale if the party that wishes to execute the security could not provide a court decision or order for the said auction.
For a pledge of shares, the enforcement may be subject to the following restrictions. The sale of pledged shares through enforcement of the pledge will be subject to restriction of the articles of association of the company whose shares have been pledged. The articles of association may stipulate that the sale of shares is subject to other shareholders’ right of first refusal, or prior approval of a general meeting of shareholders. In some cases, licences of the company may include restrictions on changes of control of the licence holders and thus these provisions must also be observed.
It should be possible for the security agent to directly enforce and obtain proceeds of the fiducia security over receivables, fiducia security over insurance proceeds, fiducia security over reinsurance proceeds and pledge of bank account.
A choice of a foreign law as the governing law of the contract and the submission to a foreign jurisdiction will be upheld in Indonesia except where it is manifestly incompatible with the public policy of Indonesia, or where the Indonesian court may give effect to mandatory rules of the laws of another jurisdiction with which the situation has a close connection, if, and in so far as, under the laws of that other jurisdiction those rules must be applied, whatever the chosen law.
Foreign arbitral awards are enforceable under Indonesian law without re-examination of the merits and re-litigation of the matters to the extent that they are issued by an arbitrator or arbitral tribunal in a country that is also a party to the New York Convention 1958. The award needs to be registered at Central Jakarta District, with a writ of execution (known as an exequatur) from the Chairman of the Central Jakarta District Court or, where the award involves the government of Indonesia as one of the parties to the dispute, from the Supreme Court of Indonesia (through the Central Jakarta District Court).
Foreign court decisions are not enforceable within Indonesia. The judgment can be used as evidence in a retrial of the merits of the case, but subject to the prevailing laws and regulations. Indonesia is not a party to any treaty, convention or bilateral agreement that recognises the enforcement of a foreign court judgment.
In general, there are no other matters that might impact a foreign lender’s ability to enforce its rights under a loan or security agreement. However, pursuant to the Minister of Finance Regulation 213/PMK.06/2020 (the “MOF Regulation 213/2020”), a lender holding security that wishes to sell the assets by way of public auction (via Auction Service Office (Kantor Pelayanan Kekayaan Negara dan Lelang or KPKNL), Auction House or Class II Auction Official Office) must have an Indonesian Tax Identification Number (Nomor Pokok Wajib Pajak or NPWP). Based on reading MOF Regulation 213/2020, as well as discussions with the Ministry of Finance and KPKNL, it is understood that the requirement to have NPWP for a seller is absolute without an exemption. This requirement may not be fulfilled by a foreign lender but could be overcome by appointing a local security agent who holds NPWP.
In general, foreign lenders are not restricted from granting loans. However, foreign lenders are restricted from granting loans to Indonesian entities if such loans require security from the government of Indonesia, Bank Indonesia or other state-owned banks and resulting in any liabilities of the government of Indonesia due to such loan.
In general, the granting of security or guarantees to foreign lenders is not restricted or impeded. However, it should be noted that:
Foreign direct investment is subject to restrictions or requirements that vary based on the line of business of the company. For example:
There are no restrictions on payments abroad or repatriation of capital by foreign investors. However, any transfer of foreign exchange to and from abroad by such person is subject to the reporting obligation to Bank Indonesia as regulated by Bank Indonesia regulations concerning the monitoring of the flow of foreign exchange activities and the reporting of foreign exchange activities other than offshore loans, as may be amended from time to time. Certain transactions of Rupiah have been restricted by the Bank Indonesia Regulation on the Restrictions on Rupiah Transactions and Foreign Currency Credit Offered by Banks, as may be amended from time to time. Violation of these regulations is subject to administrative sanctions.
A project company may establish and maintain offshore foreign currency accounts.
The financing agreement is subject to the company’s report to: (i) Bank Indonesia on the offshore loans, foreign exchange flows and fulfilment of offshore loan prudential principles; and (ii) Minister of Finance on the offshore loans. The timing of such report is subject to the relevant regulations.
The financing or project agreements need to be prepared and signed in Indonesian language in addition to the foreign language for compliance with the Indonesian language regulations and to ensure the validity and enforceability of such agreements.
Ownership of land requires a title over such land evidenced by the relevant title certificate. The different types of land title are as follows:
Only right of use can be granted to foreign legal entities having a representative in Indonesia and foreigners.
Natural resources cannot be owned by a private entity as they are controlled by the state, although such private entity may use natural resources based on the relevant permit. For example, a company may explore and exploit geothermal resources based on a geothermal business licence issued by the Minister of Energy and Mineral Resources.
Undertaking the business of ownership or operation of such assets requires licence(s) under the relevant regulations. It is not possible for a foreign entity to hold such a licence; it would need to be done through the establishment of a foreign investment company in Indonesia, which would apply for and be granted such licence.
The security trust concept is not recognised in Indonesia. The common arrangement used in Indonesia is the concept of security agent as an alternative to security trust.
Methods of Subordination
The following methods of subordination are used.
The priority will be applicable in the insolvency/bankruptcy proceeding. Creditors that hold in rem security interest will have higher ranking than creditors that do not hold any in rem security interest. Generally, mortgages, pledges and fiduciary transfers or assignments are in rem security interests that are absolute and exclusive. They create preferential rights to the holder.
Typically, the project sponsors establish a special purpose vehicle, often in the form of an Indonesian limited liability company, to oversee the development and operation of the project, known as the project company.
Typically, when it comes to debt restructuring, parties can engage in private negotiations regarding the unpaid debt as long as the company has not been officially declared bankrupt by a court. Nevertheless, the Indonesian Bankruptcy Law does offer a formal mechanism for corporate rescue known as the “suspension of payments” process. This process is applicable to all individuals and businesses with their registered address or place of operation in Indonesia.
Suspension of Payments
The process of suspension of payments begins when either the debtor or their creditors file a petition with the Commercial Court. This petition includes a proposal to repay some or all of the debt to both secured and unsecured creditors. The primary aim is to provide the debtor with an opportunity to reorganise the company, with the hope that it can continue operating and eventually satisfy the claims of its creditors. Following the submission of the petition, the Commercial Court grants the debtor provisional suspension of payments and appoints two key figures: (i) a supervisory judge; and (ii) an administrator. These individuals work alongside the debtor to oversee its financial affairs.
During this suspension period, the debtor retains the ability to manage and dispose of its assets, but always in collaboration with the appointed administrator. Importantly, the debtor is not obligated to make payments to unsecured creditors during this time, and secured creditors cannot enforce their security interests without the court’s approval. Additionally, the debtor has the option to present a proposed composition plan to all of its creditors.
First Creditors’ Meeting
Within 45 days of the provisional suspension of payments being granted, it is mandatory to convene a meeting of the creditors. During this meeting, secured and unsecured creditors have two options.
In the event that the creditors do not reach an agreement, the debtor will be officially declared bankrupt.
Composition Plan Ratification
If the creditors give their approval to the plan, a written report must be submitted by the supervisory judge to the Commercial Court. The court then evaluates this report and listens to input from the administrator and creditors, who may have objections. The court is required to reject the plan in the following circumstances.
Once ratified, the composition plan becomes legally binding for all secured and unsecured creditors, except for those secured creditors who dissented. Dissenting secured creditors have the right to receive compensation from the debtor, calculated at the lower of either:
After the plan is approved, the temporary suspension of payments comes to an end, and the administrator or receiver (as relevant) is released from their duties. The control of the debtor’s business and assets is then returned to the debtor, with any specific terms outlined in the plan still in effect.
A bankruptcy proceeding may affect the ability to enforce security during the “stay period”. The stay period is 90 days from the rendering of a bankruptcy declaration, and a maximum of 270 days from the rendering of a suspension of payments decision.
Preferential creditors would have a higher ranking with respect to proceeds arising out of the bankruptcy asset’s liquidation, even though the assets might be part of a secured claim of a creditor. Claims for costs of foreclosure, costs incurred to protect the bankruptcy assets, claims from the government (including tax) and employees’ claims all have a higher ranking than a secured claim.
No entity is excluded from bankruptcy proceedings. However, certain financial institutions can only be the subject of a bankruptcy petition made by a relevant government institution. For example, insurance companies can only be petitioned by the Indonesian Financial Services Authority. The legislation applicable to them is Law No 40 of 2014 on Insurance.
Based on Law No 37 of 2004 on Bankruptcy and Suspension of Payments (Bankruptcy Law), there are two types of court-sanctioned insolvency proceedings applicable to Indonesian limited liability companies: bankruptcy proceedings and suspension of payment proceedings.
When a bankruptcy estate is declared to be in a state of insolvency and the receiver decides to liquidate the bankruptcy estate for distribution to the creditors of the bankrupt debtor, a ranking will need to be applied.
The general rule on distributing the proceeds of a bankruptcy estate to unsecured creditors is one of equality, subject to the statutory priority rights of certain categories of creditors. Shareholders rank behind all creditors in the distribution of the proceeds of the bankrupt estate. Secured creditors may enforce their security rights as if there were no bankruptcy, subject to any applicable stay of enforcement. However, upon the request of the receiver or the preferred creditor having rank higher than the secured creditors, the relevant secured creditor must grant its portion from the proceeds of the enforcement of in remsecurity for the same amount as such preferred creditor’s claim.
The ranking order of creditors under the bankruptcy is as follows.
1. Outstanding wages (excluding severance payments and other rights) of the employees of the bankrupt debtor would rank higher than any claims. Outstanding rights of the employees of the bankrupt debtor other than outstanding wages would rank below the secured creditors.
2. Specific expenses stipulated by the Tax Law:
3. Preferred creditors ranked above the secured creditors:
4. Bankruptcy estate creditors (ie, claim against bankruptcy estate), for example:
5. Secured creditors, which under Indonesian law consist of:
6. Specific statutorily preferred creditors whose preference relates only to specific assets.
7. General statutorily preferred creditors (eg, revenue authorities), which should include the severance payments.
8. Unsecured creditors receive their pro rata share of any of the remaining proceeds. The cost of the bankruptcy is shared pro rata among the statutorily preferred creditors and the unsecured creditors.
However, it should be noted that the above priority order may not always be upheld strictly for specified and unspecified reasons.
Indonesian Bankruptcy Law regulates nullification of preferential transfer transactions conducted by a borrower before its bankruptcy, if such transaction were considered detrimental to the creditors by the receiver. The receiver may nullify such transfer if the following requirements are fulfilled:
If the preferential transfer transaction was carried out within one year before the borrower’s bankruptcy, provided that the transaction was not mandatory for the borrower and unless it could be proven otherwise, both the borrower and the third party with whom the act was performed are deemed to have known that the transaction was detrimental to the creditors if the transaction falls into one of the following three categories:
There is no provision under the Indonesian Bankruptcy Law that stipulates a specific period when the preferential transfer claim can be made. However, a request for the nullification of a preferential transfer shall be made by the receiver. The claim can be made only if the borrower has a receiver.
If the creditors find borrower’s assets that existed during the bankruptcy proceedings but are discovered only after the bankruptcy proceedings have been completed, the creditors may report such findings to the Commercial Court. The Commercial Court will then appoint a receiver to distribute such newly discovered assets to the creditors whose rights have not been satisfied in full.
No entity is exempted from bankruptcy proceedings. Nonetheless, specific financial institutions can only be the target of a bankruptcy petition if initiated by a relevant government agency. For instance, insurance companies can solely be petitioned by the Indonesian Financial Services Authority. The applicable legislation is Law No 40 of 2014 on Insurance.
There are no limitations imposed on insurance policies for project assets issued or guaranteed by foreign insurance companies. Nevertheless, the income tax in Indonesia, set at 20%, applies to the payment of insurance premiums received by these foreign insurance companies.
If insurance policies for project assets are encumbered by a fiduciary security and the relevant insurance company acknowledges this security or assignment, then the payouts from these policies may be payable to foreign secured creditors. It is also typical for secured creditors to be listed as an insured through a banker’s clause under the insurance policy.
Payments made by the company to lenders under the financing agreements are subject to withholding tax in Indonesia unless the recipient is an Indonesian bank and/or an Indonesian branch of a foreign bank. If the recipient is a tax resident of a jurisdiction which has an effective tax treaty with Indonesia, it could get the benefit of a reduced withholding tax rate under the tax treaty.
Other than the registration fee for the security interest, as stated in 2.3 Registering Collateral Security Interests, all agreements entered in Indonesia or to be used in Indonesian territory are subject to Indonesian stamp duty. Currently, the nominal amount of Indonesian stamp duty is IDR10,000 for transactions of more than IDR5 million. Generally, stamp duty is due and payable at the time documents are executed.
Generally, parties can agree on the amount of interest that can be charged. In the absence of such agreement and to the extent Indonesian law applies, 6% per annum is the maximum interest rate that can be charged.
Usually, project agreements are governed by Indonesian law. However, certain project agreements, where the execution does not necessarily occur in Indonesia (ie, offshore supply contracts, offshore EPC or technical services agreements), are typically governed by foreign law.
Financing agreements are generally governed by foreign law (commonly English or New York law), save for the Indonesian security documents which must be governed by Indonesian law.
Indonesian law security must be governed by Indonesian law. Specific project agreements, such as those for onshore construction, are legally mandated to be subject to Indonesian law.
Indonesia’s project financing landscape is ever evolving and influenced by global trends, aligning itself with global financial paradigms and local regulatory dynamics. Here are some recent key trends in the project financing scene in Indonesia.
Energy Transition Initiatives and Programmes
Currently, the Indonesian project financing landscape is undergoing significant development, primarily driven by a surge in energy transition initiatives in Indonesia. As the global community intensifies its efforts to combat climate change, the government of Indonesia (GOI) affirmed its commitment to energy transition as a strategic agenda for its presidency of the 17th G20 in 2022, which was evident through the introduction of both the Just Energy Transition Partnership (JETP) and the Energy Transition Mechanism (ETM) Country Platform, which were officially unveiled during the 2022 G20 Summit in Bali.
JETP is an umbrella initiative for international support for a just energy transition. Indonesia and the International Partners Group (IPG) announced the mobilisation of an initial funding pool of USD20 billion, drawn from both public and private financing over a three to five-year period. This substantial capital injection is earmarked for the purpose of decarbonising Indonesia’s energy sector through an accelerated deployment of renewable energy and a phase down of coal power plants. The funding approach encompasses a diverse array of financial instruments, including grants, concessional loans, market-rate loans, guarantees, and private investments.
The objective of JETP is to align Indonesia’s energy transition efforts with global climate goals, specifically targeting the ambitious target of limiting global warming to 1.5 degrees Celsius. This effort to secure substantial financial support underscores Indonesia’s commitment to addressing climate change and underscores the pivotal role that project finance plays in facilitating the country’s transition towards cleaner and more sustainable energy sources.
ETM Country Platform
On 14 November 2022, the GOI through the Ministry of Finance (MOF) officially launched the Energy Transition Mechanism (ETM) Country Platform. The platform was launched by the Indonesian Minister of Finance, Asian Development Bank (ADB), the Islamic Development Bank (IsDB), and World Bank representatives. The programme or pilot project will include the initial scenarios of coal power plants (CPPs) phasing out, where GOI intends to cut down the economic life span of running CPPs.
GOI has appointed PT Sarana Multi Infrastruktur (PT SMI) as the ETM Country Platform Manager, responsible for developing a financing and investment framework for the ETM programme. The ETM programme will be funded through a blended finance scheme from public and private investments, such as government agencies, development banks, commercial banks, climate change funds, equity investors, and insurance companies, as well as local and international philanthropists, to mobilise the funds in the early retirement of CPPs and the development of clean and renewable energy. PT SMI collaborates with various institutional partners, including the following.
In line with the implementation of the ETM programme, the GOI has also taken significant steps to encourage the phase-out of coal. One such initiative is the introduction of a carbon pricing mechanism, which imposes a cost on carbon emissions. This not only provides a financial incentive for companies to reduce their coal reliance but also generates revenue that can be reinvested in clean energy projects.
GOI’s Support of CPP Phase-Out Programme Through Blended Financing
With the enactment of Presidential Regulation No 112 of 2022 on the Acceleration of Renewable Energy Development for Electricity Generation (PR 112/2022) in September 2022, the GOI finally administered the framework of CPP early retirement and a moratorium for new coal power plants after 2030.
There are several minimum criteria set out in PR 112/2022 that PT Perusahaan Listrik Negara (Persero) (PLN) must consider in the early retirement of CPPs, including the availability of domestic and international financial support – highlighting the importance of financing support to allow successful implementation of the CPP early retirement programme. PR 112/2022 also provides that the government may give fiscal support through funding and financing, including blended finance sourced from state budget and/or other legitimate sources that are aimed to accelerate energy transition implementation in Indonesia. This will be further regulated in an MOF regulation.
Sustainable Finance Roadmap I and II
Indonesia Financial Services Authority (IFSA/OJK) published the Sustainable Finance Roadmap Phase I (2015–19) with the objectives of enhancing the knowledge and capabilities of financial industry participants in transitioning towards a low-carbon economy. The Phase I roadmap outlined three key strategies for implementing sustainable finance:
These strategies were planned and will be implemented in the medium term (2015–19) and long term (2020–24).
The Sustainable Finance Roadmap Phase I accomplished a number of milestones, including the issuance of several regulations as follows:
Despite the above efforts, given the industry’s low level of understanding on sustainable financing and the absence of nationally applicable green standards, OJK also developed the Sustainable Finance Roadmap Phase II (2021–25). The Sustainable Finance Roadmap Phase II concentrates on addressing the physical risk, transition risk and liability risk associated with transitioning to a low carbon economy by focusing on the development of seven components:
The above components have been implemented through various programmes such as a Sustainable Finance Information Hub initiated by Bappenas, a programme focusing on accelerating sustainable financing to achieve the Sustainable Development Goals (SDGs) by synergising financial and non-financial resources. A National Task Force was also formed, where one of the programmes is to expand the use of local currency transactions in Indonesia with partner countries. This programme involves the participation of Bank Indonesia, the Co-ordinating Ministry for Economic Affairs, Co-ordinating Ministry for Maritime Affairs and Investment, Ministry of Finance, Ministry of Foreign Affairs, Ministry of Industry, Ministry of Trade, Ministry of State-Owned Enterprises, OJK and Indonesia Deposit Insurance Corporation.
In September 2023, SMI successfully secured its inaugural Sustainability-Linked Syndicated Term Loan Facility, a substantial USD700 million endeavour involving collaboration with esteemed banking partners across multiple regions. This loan aims to refinance a maturing USD700 million facilities obtained in 2020. A group of Mandated Lead Arrangers and book runners, including Bank of China (Hong Kong), CTBC Bank, DBS Bank, Mizuho Bank, MUFG Bank, and UOB supported this complex transaction. UOB served as the Co-ordinator and overall Sustainability Co-ordinator. Environmental Resources Management (ERM) provided a second-party opinion on Key Performance Indicators (KPI) and Sustainability Performance Targets (SPT). This reaffirmed SMI’s commitment and role in Indonesia’s sustainable infrastructure development. The syndicated USD700 million loans garnered approximately USD1.8 billion in commitments. It aims to refinance existing projects and support infrastructure initiatives.
Indonesia Green Taxonomy Edition 1.0 – 2022 (Indonesia Green Taxonomy)
On 20 January 2022, OJK issued the implementation of Sustainable Finance Roadmap Phase II, continuing the implementation of Sustainable Finance Roadmap Phase I, which outlines how the financial sector will move towards a more sustainable trajectory over the next few years (2021–25), with Indonesia’s Green Taxonomy as a priority.
Indonesia Green Taxonomy is voluntary and serves as a primary guideline to help users (financial services sectors) in conducting a quantifiable categorisation green portfolio. It also serves as a foundation for regulators in conducting risk exposure analysis of nature and climate-related risks.
The strategic objectives of the Green Taxonomy are, among others:
The Indonesia Green Taxonomy is structured based on Indonesia Standard Industrial Classification (Klasifikasi Baku Lapangan Usaha Indonesia or KBLI) and it does not focus only on sub-sector/group/business activities that are categorised as green but also includes sectors/groups/ business activities that are yet to be classified into the green category. The Indonesia Green Taxonomy also opens up some room for sectors/groups/business activities that are yet to be listed in KBLI according to clarifications from the relevant ministries.
OJK classifies environmental damage in the Indonesia Green Taxonomy in three tiers:
The Indonesia Green Taxonomy is targeted at (but not limited to) the following users:
Since the Indonesia Green Taxonomy is a dynamic/living document and is flexible in nature, it will continue to be reviewed periodically to adjust to the development of green criteria, standards, scientific development, technological change, and relevant policies. As financial services sectors in Indonesia now have standardised characteristics for green portfolios, it will help them conduct the periodic monitoring process to implement credit/financing/investment disbursement into the green sector and prevent the potential for misleading reporting of green activities (greenwashing). It will also affect the legal-environmental aspect of due diligence in assessing a project.
Further, it appears that the Indonesia Green Taxonomy will be used by the regulators and government agencies involved in developing green taxonomy to monitor financial flows in order to achieve national environmental priorities. The preparation of the reporting guidelines is mentioned as the last point of the stages in developing the Indonesia Green Taxonomy. Such monitoring will be applied to financial services sectors in reporting their disclosure.
The ESG Framework and Manual for PPP Projects
Not only OJK but also the Ministry of Finance makes efforts to integrate ESG in its activities by issuing the ESG Framework and Manual in Government Support and Facility for Infrastructure Financing. The ESG Framework and Manual aim to implement ESG principles in Public-Private Partnership (PPP) schemes in Indonesia – a contract between a government entity (usually called a Government Contracting Agency/GCA) and a private sector entity (usually called an Implementing Business Entity/IBE) to provide a public asset or service jointly with allocated risks and responsibilities. The Ministry of Finance initially intends to focus the implementation of the ESG Framework and Manual on PPP projects and then by 2025 to work its way to non-PPP projects that receive government support.
Both the ESG Framework and Manual provide guidance for all PPP stakeholders, including the Ministry of Finance, GCA, IBE, and the facility implementers, in implementing ESG in every business process of providing government support for PPP. For example, including ESG risk analysis and assessment in the government support’s scope, taking necessary ESG-related mitigation measures throughout the entire project cycle, and incorporating ESG elements in the transaction documents and performance indicators. The framework comprises ten ESG principles, including:
The ESG Manual itself is a more detailed explanation of the ESG Framework containing technical instructions for implementing ESG in the infrastructure project stages, setting out clearly “who” does “what” to implement ESG principles in business processes, and providing a number of tools that can be used by stakeholders in carrying out ESG activities.
Sharia Financing Trend in Indonesia
Indonesia, home to a sizable Muslim population, sees growing demand for Sharia-compliant finance. Indonesia has established its own Sharia national board (Dewan Syariah Nasional – Majelis Ulama Indonesia) that provides Sharia principles guidance to be applied in financing transactions. Sharia financing has been applied to various projects, including large-scale infrastructure and renewables financing. A notable example of successful Sharia financing is the IDR750 million financing under the Musyarakah structure provided by PT Bank Syariah Indonesia Tbk to Medco Power Indonesia for its renewable energy project.
There is also an uptrend in using hybrid financing for large-scale project financing, as applied in the IDR1 trillion financing to fund the Makassar–Parepare Railway project, the first public-private partnership railway project in Indonesia, using conventional financing structures and Musyarakah Mutanaqishah principles.
Increased Involvement of SOEs in Project Financing
Traditionally, the project financing landscape in Indonesia is mainly occupied by private companies, but things are changing. With the growing prominence of renewable energy projects that are implemented through co-operation between private independent power producers (IPPs) with subsidiaries of PT Perusahaan Listrik Negara (Persero) (PLN), as well as public-private partnership (PPP) projects, an increased involvement of state-owned enterprises (SOEs) has been observed in the project finance landscape in Indonesia.
Moreover, as the participation of SOEs in project financing activities increases, there is a trend towards innovative structuring and new hybrid security models to address concerns related to certain negative pledge clauses requirements which may affect SOEs and SOEs group financing.
Increased Involvement of Local Banks in Project Financing
Notably, alongside SOEs, local banks are increasingly engaging in project financing for renewable energy initiatives. A prime example is PT Sarana Multi Infrastruktur (PT SMI) functioning as a special mission vehicle under the Ministry of Finance, which is poised to accelerate infrastructure development in Indonesia through the mobilisation of resources from financial institutions, as well as contributing to the improvement of the new and renewable energy (NRE) mix in Indonesia.
In September 2023, PTSMI also successfully completed the process of obtaining its first-ever, Sustainability-linked Syndicated Term Loan Facility from a number of banking partners across geographies including Indonesia, Singapore, Japan, Hong Kong, Taiwan and South Korea. This syndicated term loan facility amounting to USD700 million or around IDR10.65 trillion is in line with the company commitment to support sustainable infrastructure projects in Indonesia. The transaction was supported by several Mandated Lead Arrangers & Bookrunners (MLABs), namely Bank of China (Hong Kong), CTBC Bank Co Ltd, DBS Bank, Mizuho Bank, MUFG Bank Ltd, and United Overseas Bank (UOB). UOB also acted as the MLABs’ Co-ordinator and the overall Sustainability Co-ordinator for the transaction. PT SMI engaged Environmental Resources Management (ERM) as the second party opinion provider, to provide a review on the Key Performance Indicators (KPI) and Sustainability Performance Targets (SPT) for the transaction. This syndicated loan is intended to fulfil financing needs primarily for sustainable infrastructure projects in Indonesia, which will further strengthen the asset liability management of the company.
An illustration of green/renewable energy projects that have been facilitated by PT SMI is the Financing Agreement signed in early 2023 between PT SMI and PT Medco Cahaya Geothermal for the development of the Blawan Ijen Geothermal project in East Java, Indonesia. This was one of the first financings of geothermal projects in Indonesia by an Indonesian lender – that also marks the interest and readiness of Indonesian lenders to finance development of geothermal projects in Indonesia to support Indonesia’s commitment to achieve net zero emissions by 2060 and the acceleration of the energy transition from fossil fuels to renewable energy.
Furthermore, in September 2022, PT SMI also provided financing facilities for the development of the Tongar Mini-hydro Power Plant project, valued at IDR200 billion, with a capacity of 2x3 MW in West Pasaman district, West Sumatera. This project received bilateral support from the governments of Indonesia and Japan as a Joint Crediting Mechanism project, being a joint venture project of an Indonesian listed construction company and a Japanese power and infrastructure company.
While there have been instances of local banks participating in such endeavours, it is important to note that pure project financing remains somewhat elusive in Indonesia. Most local banks continue to require and rely on letters of undertaking (LOU) from project sponsors, although it has been observed that some exceptions in certain projects exist, where LOUs are not required to be provided for the entire debt term but can be released upon reaching the project’s commercial operation date (COD) and/or if certain financial criteria or minimum guaranteed revenue is met by the project company as a borrower.