Uu No 8 Tahun 1995

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Indonesian Capital Market Act/UU No.8 Tahun 1995 tentang Pasar Modal …

1. 1. A LAW OF THE REPUBLIC OF INDONESIA NUMBER 8 YEAR 1996 CONCERNING THE CAPITAL MARKET - Unofficial English Translation JAKARTA, INDONESIA March 1996
2. 2. CONTENTS GENERAL PROVISIONS 1 THE CAPITAL MARKET SUPERVISORY AGENCY 7 SECURITIES EXCHANGES, CLEARING GUARANTEE INSTITUTIONS AND CENTRAL SECURITIES DEPOSITORY 13 Securities Exchanges 13 Clearing Guarantee Institutions, and The Central Securities Depository 16 INVESTMENT FUNDS 19 Legal Form and Licensing 19 Management 21 SECURITIES COMPANIES, SECURITIES COMPANY REPRESENTATIVES AND INVESTMENT ADVISORS 25 Licensing of Securities Companies 25 Licensing of Securities Company Representatives 26 Licensing of Investment Advisors 27 Code of Conduct 27 CAPITAL MARKET SUPPORTING INSTITUTIONS 31 Custodians 31 Securities Administration Agencies 33 Trust-Agents 34 COLLECTIVE CUSTODY AND THE SETTLEMENT OF EXCHANGE TRANSACTIONS 37 Settlement of Securities Exchange Transactions 37 Collective Custody 38 CAPITAL MARKET SUPPORTING PROFESSIONALS 43 Registration 43 Obligations 44 Accounting Standards 45 ISSUERS AND PUBLIC COMPANIES 47 Registration Statements 47 Procedures for Submitting Registration Statements 48 Prospectuses and Publications 49 Liability For False Or Misleading Information 50 Preemptive Rights, Conflicts of Interest, Tender Offers, Mergers, Consolidations and Acquisitions 51 REPORTING AND DISCLOSING INFORMATION 53 FRAUD, MARKET MANIPULATION AND INSIDER TRADING 55 FORMAL INVESTIGATIONS 59 CRIMINAL INVESTIGATIONS 61 ADMINISTRATIVE SANCTIONS 63 CRIMINAL PROVISIONS 65 OTHER PROVISIONS 67 TRANSITIONAL PROVISIONS 69 CLOSING PROVISIONS 71
3. 3. A LAW OF THE REPUBLIC OF INDONESIA NUMBER 8 YEAR 1996 CONCERNING THE CAPITAL MARKET WITH THE BLESSING OF GOD THE ALMIGHTY THE PRESIDENT OF THE REPUBLIC OF INDONESIA, CONSIDERING: a) that the goal of national development1 based on Pancasila and the 1945 Constitution is the advancement of a just and prosper- ous people; b) that the Capital Market has a strategic role in national de- velopment as a source of funding for business and as a vehicle for public investment; c) that in order for the Capital Market to develop, there must be a way of providing a sound legal foundation for Persons that do business in the Capital Market and of protecting the investing public against practices that may cause loss; d) that considering the goals of national development and the de- mands of economic globalization, Emergency Law No. 79 of 1951 on Exchanges2 and Enabling Laws Nos. 15 and 67 of 1952 are no longer adequate for the current situation; 1 National development reflects a pursuit of continuous improvement in the prosperity and well-being of Indonesian citizens, in ways benefiting the lives of men and women with justice and equality, and promoting a progressive, democratic nation founded on Pancasila and the 1945 Constitution. This is in accordance with the Great National Guiding Principles that set the formation of independent and progressive qualities in the Indonesian people in a climate of peace and prosperity, as a goal for the Second Long-Term Development Plan. This goal includes the preservation of fundamental traditions, based on Pancasila, and the creation of a balanced lifestyle with harmonious relations among men, and between men and the community, nature, and Almighty God. In the field of economics, one ob- jective of the Second Long-Term Development Plan is building a free, secure economy, with reasona- bly fast growth, more evenly-distributed wealth, and an environment of national stability. To reach these goals, laws are needed to stimulate, facilitate and control economic development. Necessary legislation for economic development includes regulation of the Capital Market. Until now, this has been Law 15 of 1952 entitled “The Emergency Law on the Securities Exchange”, included in the Statues of 1951 and 1952 (Books 79 and 67, respectively). With the promulgation of this new “Law on the Capital Market”, it is expected that the Capital Market will have a greater role in develop- ment, so that national economic objectives may be achieved. The purpose of the Capital Market is to support national development by enhancing public welfare through economic growth and societal stability, while fostering a more equitable distribution of wealth. To reach this objective, the Capital Market plays a strategic role by financing businesses, both large and small. At the same time, the Capital Market provides the public with investment op- portunities, including products for small and medium investors. 2 Regulation of the Capital Market under Law 15 of 1952, “The Emergency Law on the Securities Ex- change” included in the Statues of 1951 and 1952 (Books 79 and 67, respectively), is considered in- adequate in today’s environment, it does not contain important Capital Market provisions, such as the adoption of the principle of full disclosure of material information in a Public Offering, and other es- sential public safeguards. In view of the rapid development of the economy and the globalization of
4. 4. e) that based on these considerations, it is necessary to promulgate a Law on Capital Markets; IN VIEW OF: 1. Article 5 item (1), Article 20 item (1), and Article 33 of the 1945 Constitution ; 2. The Limited Liability Company Law No. 1 of 1995 (Statute Book No. 13 for 1995 and its Supplement No. 3587) With the approval of THE HOUSE OF REPRESENTATIVES OF THE REPUBLIC OF INDONESIA HAS DECIDED TO ENACT: 33 A LAW ON THE CAPITAL MARKET 33 business, the time is propitious for a new “Law on the Capital Market”, based on Pancasila and the 1945 Constitution. This new Law requires Companies making Public Offerings, as well those that qualify as Public Com- panies, to make public all information that is material regarding their finances, management, opera- tions, and other business activities. It is essential that the public have access to this information when making investment decisions. The Law also requires Persons making Public Offerings and Public Companies to comply with disclosure requirements when their securities are traded in the secondary market. Violation of such provisions by Persons making a Public Offering and the professionals in- volved, makes such persons liable to the public for losses that are due to inadequate disclosure. When the disclosure is fraudulent, violators are subject to criminal sanctions. Professionals involved in a Public Offering, such as Underwriters, Accountants, Legal Consultants, Notaries, Appraisers, and others, are required to fulfill certain obligations, and are subject to administrative and criminal sanc- tions for violations. The Law also covers securities trading in the secondary market. Securities Exchanges, Clearing and Guarantee Institutions, and the Central Securities Depository have the duty to ensure that securities trading is conducted in an orderly, fair, and efficient manner. To further ensure that the Capital Market is conducted in an orderly and fair manner, and that public investors are protected from harmful and illegal practices, a Capital Market Supervisory Agency is authorized to administer and enforce the Law. This Agency has authority to conduct investigations under the Indonesian Criminal Code.
5. 5. Page 1 CHAPTER GENERAL PROVISIONS Article 1 In this Law, what is meant by: 1. Affiliation is: a) a family relationship3 by marriage and descent to the second degree, horizontal as well as vertical; b) a relationship between a Person and its employees4 , directors, or commissioners; c) a relationship between two Companies with one or more directors or commissioners in common 5 ; d) a relationship between a Company and a Person that directly or indirectly, controls6 or is controlled by that Company; 3 What is meant by a “family relationship by marriage” is the relationship of a person with : 1. a husband or wife; 2. a mother- or father-in-law, and a son- or daughter-in-law (1 st degree, vertical); 3. a grandfather- or grandmother-in-law, and a grandson- or granddaughter-in-law (2 nd de- gree, vertical ); 4. a brother- or sister-in-law (2 nd degree, horizontal); and 5. a husband or wife of a brother- or sister-in-law (2 nd degree, horizontal). What is meant by a “family relationship by descent” is the relationship of a person with: 1. a parent or child (1 st degree, vertical); 2. a grandparent or grandchild (2 nd degree, vertical); 3. a sibling (2 nd degree, horizontal). 4 “Employee” means an individual who receives a periodic wage or salary and that works for a Person with authority to control and direct his actions. 5 An example of a relationship between two companies with directors or commissioners in common, is as follows: Mr. A is a Director of Company X and Company Y, or a Commissioner of Company X and Company Y, or a Director of Company X and a Commissioner of Company Y. 6 “Control” means the ability to determine, directly or indirectly, and by whatever means, the man- agement or policies of a Company. An example of a relationship between a Company and a Person that controls the Company is as fol- lows: Mr. A controls Company X. An example of a relationship between a Company and a Person that indirectly controls the Company is as follows:
6. 6. GENERAL PROVISIONS Page 2 e) a relationship between two Companies that are con- trolled directly or indirectly by the same Person7 ; or f) a relationship between a Company and a substantial shareholder8 . 2. A Member of a Securities Exchange is a Broker-Dealer, li- censed by BAPEPAM, that is permitted by the rules of the Securities Exchange to use its systems and facilities. 3. A Securities Administration Agency is a Person that, under contract, maintains ownership records of an Issuer’s Securi- ties and distributes entitlements on such Securities. 4. A Securities Exchange is a Person that organizes and pro- vides the system and facilities9 that are used to bring together offers of those who intend to buy and sell Securities. 5. Securities are promissory notes, commercial paper, shares, bonds, evidences of indebtedness, Participation Units of col- lective investment contracts, futures contracts related to Se- curities, and all derivatives10 of Securities . 6. An Issuer is a Person who makes a Public Offering. Mr. A controls Company X and Company X controls Company Y. Therefore Mr. A indirectly controls Company Y. An example of a relationship between a Company and a Person that is directly controlled by the Com- pany is as follows: Company Y is controlled by Company X. An example of a relationship between a Company and a Person that is indirectly controlled by the Company is as follows: Company Z is controlled by Company Y and Company Y is controlled by Company X. There- fore Company Z is indirectly controlled by Company X. 7 An example of a relationship between two Companies that are directly controlled by the same Per- son is as follows: Company X and Company Y are controlled by Mr. A. An example of a relationship between two Companies that are indirectly controlled by the same Per- son is as follows: Company X1 is controlled by Company X2 and Company Y1 is controlled by Company Y2. However, Company X2 and Company Y2 are controlled by Mr. A. Therefore, Company X1 and Company Y1 are indirectly controlled by Mr. A. 8 “Substantial Shareholder” refers to a Person that directly or indirectly holds at least twenty percent of the voting rights of a Company’s issued shares, or such lower percentage stipulated by BAPEPAM. An example of a relationship between a Company and a Substantial Shareholder is as follows: Mr. A has voting rights to twenty percent of Company X’s issued shares with voting rights. 9 This definition includes systems that bring together offers to buy and sell, even without means for trading Securities. 10 “Derivatives” refers to rights that are derived from either debt or equity Securities, such as Options or Warrants. An “Option” is the right to purchase or sell within a certain time, a specified number of Securities at a specified price. A “Warrant” is a Security issued by a Company giving the holder the right, six months or more after the Securities are issued, to subscribe to shares of the Company at a specified price.
7. 7. Page 3 7. Material Information11 is any important and relevant fact con- cerning events, incidents or data that may affect the price of a Security on an Exchange or that may influence the deci- sions of investors, prospective investors or others that have an interest in such information. 8. A Custodian is a Person who provides safekeeping services12 with respect to Securities and Securities-related assets and other services, including collection of dividends, interest, and other entitlements, the settlement of Securities Transactions, and agency services for clients who are account holders. 9. A Clearing Guarantee Institution is a Person that clears13 and guarantees the settlement of Securities Exchange Trans- actions. 10. A Central Securities Depository is a Person that acts as a central Custodian for Custodian banks, Securities Companies and others. 11. An Investment Manager is a Person other than an insurance Company, pension fund or bank with respect to its own lawful activities, that, as a business, manages Securities Portfolios or collective investment Portfolios for clients or groups of cli- ents. 12. The Minister is The Minister of Finance of The Republic of Indonesia 13. The Capital Market is the activity of trading and Offering Se- curities to the Public, the activity of a Public Company with respect to Securities it has issued, and the activities of Secu- rities-related institutions and professions. 14. An Investment Advisor is a Person who, for a fee, renders advice 14 to others regarding the sale or purchase of Securi- ties. 11 Material Information is information that may affect the price of Securities or the decision of inves- tors, prospective investors, or others with an interest in such information, and includes information on matters such as: 1. mergers, acquisitions, consolidations or joint ventures; 2. the distribution of stock splits or stock dividends; 3. extraordinary income or dividends 4. the making or loss of an important contract; 5. a new product or significant invention; 6. a change in a Company’s financial year; and 7. a change in control or an important change in management; 12 Safekeeping includes Collective Custody. “Account holders” are Persons whose names are regis- tered on a Securities account, based on a contract with a Custodian. Account holders may be the owners or representatives of the owners of the Securities posted to their accounts. A “Securities ac- count” is a record showing an investor’s position of Securities and funds held with a Custodian. For example, an owner deposits his Securities in an account in his name at a Securities Company. The Securities Company later deposits these Securities in an account in its name at a Custodian bank. The Custodian Bank then deposits the Securities in its account at a Central Depository. The Custodian bank is the registered account holder at the Central Depository. In this illustration, the Custodian bank with respect to securities registered in its account at the Central Depository, is the representative of the Securities Company that in turn represents the owner of the Securities. 13 “Clearing” is the process of determining the rights and obligations arising from Exchange Transac- tions. The “Guarantee” referred to is the assurance that rights and obligations of Exchange Members with respect to Exchange Transactions will be settled.
8. 8. GENERAL PROVISIONS Page 4 15. A Public Offering15 is an offer to sell Securities to the public, made by an Issuer in ways stipulated in this Law and its im- plementing regulations. 16. Collective Custody is the service of safekeeping Securities owned jointly16 by more than one Person whose interests are represented by the Custodian. 17. An Underwriter is a Person who makes an agreement with an Issuer to conduct a Public Offering, with or without the obli- gation to purchase Securities that are not sold. 18. A Broker-Dealer is a Person who engages in the business of buying and selling Securities for the account of others or for his own account. 19. A Registration Statement is the set of documents that must be submitted to BAPEPAM by a Public Company, or by an Issuer in a Public Offering. 20. A Company is a limited liability company as defined in Law Number 1 of 1995 on Limited Liability Companies (Article 1, item 1 in the General Provisions). 21. A Securities Company is a Person who engages in the busi- ness of Underwriter, Broker-Dealer and/or Investment Man- ager. 22. A Public Company is a Company that has at least 300 share- holders and a paid-in capital of at least three billion rupiah, or such other number of shareholders and paid-in capital that may be stipulated in Government Regulations. 23. A Person is a natural person, a Company, a partnership, an association or any organized group. 24. A Securities Portfolio is a collection of Securities that is owned by a Person or Persons. 25. The Disclosure Principle is the general guideline that requires an Issuer, a Public Company, and other Persons subject to 14 “Advice” includes both oral and written advice, and advice published in the mass media. 15 “Public Offering” refers to an offering of Securities that takes place within a certain time and within specified amounts, either within the territory of Indonesia, or to Indonesian citizens abroad, and of- fered either through the mass media, or otherwise to more than one hundred Persons, or resulting in sales to more than fifty Persons. An “Offering” within the territory of Indonesia includes both domes- tic and foreign Issuers, as well as offerings to both domestic and foreign investors, in compliance with Disclosure Principles. Regulations regarding Public Offerings also apply to offerings by domestic Is- suers to Indonesian citizens abroad. This provides necessary protection to Indonesian investors over- seas in the case of Securities offered by domestic Issuers. In determining whether there has been an offering of Securities to more than one hundred Persons, it is not relevant that the offering is followed by the purchase of Securities. However, the sale of Securities to more than fifty Persons is deter- mined by the actual purchase of Securities, whether or not associated with an offer. “Mass media” refers to newspapers, magazines, film, television, radio and other electronic media, as well as letters, brochures and printed matter distributed to more than one hundred Persons. The number of one hundred offerees and fifty purchasers, used to determine a Public Offering, may be adjusted by BAPEPAM in response to Capital Market developments. 16 “Jointly-owned” refers to Securities owned by more than one Person and registered in the name of a Custodian. For example, Securities in Collective Custody at a Central Depository are recorded in the Issuer’s register of Security-holders in the name of the Central Depository. These Securities are recognized by the Issuer as being owned by one or more Person represented by the Central Deposi- tory. Securities in Collective Custody with a Custodian bank or Securities Company are registered in a Securities account at a Central Depository. These Securities are recognized by the Central De- pository as being owned by more than one Person represented by such Custodian bank or Securities Company.
9. 9. Page 5 this Law, to disclose to the public within a certain time, Mate- rial Information with respect to their business or Securities, when such information may influence decisions of investors in such Securities and/or the price of the Securities. 26. A Prospectus is written information that is intended to induce another Person to buy Securities in a Public Offering 27. An Investment Fund is a vehicle used by an Investment Manager to gather funds from the public for investment in a Securities Portfolio. 28. A Securities Exchange Transaction is a contract between Members of a Securities Exchange in accordance with Ex- change rules, that relates to the purchase, sale, borrowing, lending, or other contractual arrangement regarding Securi- ties or the price of Securities17 . 29. A Participation Unit is the method of measuring a Person’s ownership interest in a collective investment Portfolio. 30. A Trust-Agent is a Person who represents the interests of holders of credit Securities. Article 2 The Minister shall determine general policy 18 with respect to the Capital Market. 17 The borrowing and lending of Securities may occur when a Securities Exchange Member lacks the Securities needed to settle a Securities Exchange transaction. Other contracts involving the price of Securities include share-price-index options. 18 General policy is Capital Market policy directly or indirectly related to fiscal and monetary policy and macro-economics in general.
10. 10. GENERAL PROVISIONS Page 6
11. 11. Page 7 CHAPTER THE CAPITAL MARKET SUPERVISORY AGENCY Article 3 1) The Capital Market Supervisory Agency, hereinafter referred to as BAPEPAM, shall provide guidance, regulation, and day-to-day su- pervision of the Capital Market19 . 2) BAPEPAM reports and is responsible to the Minister. Article 4 In providing the guidance, regulation and supervision specified in Arti- cle 3, BAPEPAM shall act with the purpose of ensuring that the Capi- tal Market is orderly, fair, and efficient and that the interests of inves- tors and the public are protected. Article 5 In order to carry out the provisions of Articles 3 and 4, BAPEPAM shall have authority to: a. grant: 1) business licenses to Securities Exchanges, Clearing Guarantee Institutions, a Central Securities Depository, Investment Funds, Securities Companies, Investment Ad- visors, and Securities Administration Agencies; 2) individual licenses to Underwriter’s Representatives, Bro- ker-Dealer’s Representatives, and Investment Manager’s Representatives; and 3) approvals to Custodian banks; b. require the registration of Capital Market Supporting Professionals and Trust-Agents; c. establish qualifications and nominating procedures for directors 19 Because the Capital Market is a source of financing for business and an investment vehicle for in- vestors, and because the market has a strategic role in national development, its activities must be supervised to ensure that they are orderly, fair, and efficient. Consequently, BAPEPAM is given ad- ministrative authority and the responsibility to guide, regulate and supervise Persons engaged in Capital Market activities. Such supervision may be preventive in the form of regulations, guidelines, guidance and directions, or remedial in the form of inspections, investigations and the imposition of sanctions.
12. 12. THE CAPITAL MARKET SUPERVISORY AGENCY Page 8 and commissioners of Securities Exchanges, Clearing Guarantee Institutions, the Central Securities Depository, as well as the pro- cedures for suspending such officials and for appointing interim management until the election of new commissioners or direc- tors20 . d. establish the requirements and procedures regarding Registration Statements and declare, delay, or cancel the effectiveness of such Registration Statements21 . e. inspect and investigate any Person with respect to suspected 20 Candidates for director or commissioner of Securities Exchanges, Clearing and Guarantee Institu- tions, and Central Depositories must fulfill requirements established by BAPEPAM. Among other things, candidates must: 1. have Indonesian citizenship and be legally competent; 2. have never been declared bankrupt or a director or commissioner that has been declared responsible for having caused a Company to go bankrupt; 3. have never been found guilty of a criminal act; 4. have never committed a disgraceful act in the Capital Market or in the financial sector; 5. have good character and morals; 6. have expertise in the Capital Market; and 7. have never committed a material violation of Capital Market laws and regulations. Procedures for nominating directors or commissioners of Securities Exchanges, Clearing and Guar- antee Institutions, and Central Depositories are as follows: 1. Candidates for director or commissioner shall be proposed to BAPEPAM and shall be subject to requirements established by BAPEPAM; 2. When a prospective director or commissioner meets the requirements, BAPEPAM shall give its approval. If, in its evaluation, BAPEPAM determines that the candidate does not meet the requirements, it will reject the nomination; and 3. Candidates for director and commissioner that have been approved by BAPEPAM shall be eligible for election by the General Meeting of Shareholders. BAPEPAM may temporarily suspend a director or commissioner of a Securities Exchange, Clearing and Guarantee Institution or Central Depository, when such director or commissioner, among other things: 1. loses his Indonesian citizenship or becomes legally incompetent; 2. has been declared bankrupt; 3. has been found guilty of a criminal act; 4. has committed a disgraceful act in the Capital Market or in the financial sector; 5. does not have a good character and or morals; or, 6. commits a material violation of Capital Market laws and regulations. When BAPEPAM temporarily suspends all members of a board of directors, BAPEPAM may appoint any Person, employed or not by the Securities Exchange, Clearing and Guarantee Institution or Cen- tral Depository, as a temporary manager. Thereupon, the Securities Exchange, Clearing and Guar- antee Institution or Central Depository shall convene a General Meeting of Shareholders to elect new members of the board of directors. 21 “Effectiveness” refers to having completed or fulfilled all procedures and legal requirements with re- spect to a Registration Statement. A declaration of effectiveness is not an approval of the Public Of- fering nor is it a declaration that BAPEPAM has determined that the information disclosed by the Is- suer or Public Company is true and sufficient. Issuers and Public Companies that submit a Registra- tion Statement are responsible to ensure that all information and statements therein are true and not misleading. BAPEPAM does not guarantee that information in a Registration Statement is true or complete. BAPEPAM may delay declaring a Registration Statement effective when the relevant pro- cedures or requirements have not been met. In addition, BAPEPAM may cancel the effectiveness of a Registration Statement when new information is received indicating that there is a violation of this Law or its implementing regulations.
13. 13. Page 9 violations of this Law or its implementing regulations; f. require any Person to : 1) suspend and/or correct any advertisement or promotion related to the Capital Market22 ; or 2) take actions necessary to remedy the effects of such ad- vertisement or promotion23 ; g. inspect24 : 1) Issuers and Public Companies that have submitted or that are required to submit a Registration Statement to BAPEPAM; or 2) Persons that, under this Law, are required to have a busi- ness or individual license, or to be approved, or to be registered as a professional; h. authorize a Person25 , under powers granted to BAPEPAM in letter g, to conduct an inspection; i. publish findings of inspections 26 ; j. suspend or cancel the listing of a Security on a Securities Ex- change or suspend trading in a Security on an Exchange for a certain period, in order to safeguard investors’ interests 27 ; 22 When a Person engaged in Capital Market activities makes an advertisement or promotion in con- travention of this Law or its implementing regulations, BAPEPAM may halt the advertisement or pro- motion and order the Person to make corrections in order to protect the interests of investors and/or the Capital Market. 23 When investors or others incur a loss as a result of an advertisement or promotion as referred to in item 1), BAPEPAM may order the Person responsible to take necessary measures to remedy the situation, including reimbursement of losses. 24 In this letter, “ inspection” means a routine examination of an Issuer, Public Company, or other Per- son that has a license, approval or registration from BAPEPAM. In its inspections, BAPEPAM may order the Persons inspected to submit certain reports, and may examine offices and records, such as accounts, books, documents, and working papers, whether recorded manually, mechanically, elec- tronically or by other means. 25 “Authorized Person” refers to a Securities Exchange that is authorized by BAPEPAM to inspect its Member firms. Authority to conduct inspections may be given also to Public Accountants and others when necessary. 26 The results of the BAPEPAM inspections referred to in letters e and g, may be published when BAPEPAM deems it is necessary to inform the public of its findings in order to safeguard market in- tegrity and to promote compliance with this Law and or its implementing regulations. 27 BAPEPAM may suspend or cancel the listing of a Security on a Securities Exchange or halt trad- ing in a Security on an Exchange, when investors’ interests are endangered or when it is not possible to trade fairly in a Security, such as when an Issuer fails to disclose the true condition of a Company.
14. 14. THE CAPITAL MARKET SUPERVISORY AGENCY Page 10 k. suspend all trading on a Securities Exchange in times of emer- gency28 ;. l. investigate petitions for relief from Persons sanctioned by a Secu- rities Exchange, a Clearing Guarantee Institution, or a Central Se- curities Depository and decide whether to revoke or sustain such sanctions29 ; m. set fees for the granting of licenses, approvals, registrations, and fees for inspections and examinations, and other fees related to the Capital Market30 . n. take steps necessary to avert loss to the public arising from viola- tion of Capital Market regulations31 ; o. provide technical interpretations regarding this Law and its imple- menting regulations; p. define other instruments as Securities32 , in addition to those men- 28 “Emergency” refers to circumstances beyond anyone’s control, including wars, strikes, sabotage and riots, and natural disasters such as earthquakes or floods, as well as a sudden significant drop in the prices of Securities on a Securities Exchange due to a breakdown in the trading or settlement system. 29 A Person that is sanctioned by a Securities Exchange, Clearing and Guarantee Institution or Central Depository, may petition BAPEPAM for relief. BAPEPAM may grant relief to the petitioner, when its review shows there has been an error of fact or of law in the application of the sanction. BAPEPAM may cancel or amend a decision of a Securities Exchange, Clearing and Guarantee Institution, or Central Depository. Conversely, BAPEPAM may decide that there is no basis to grant relief and reaf- firm the decision of the Securities Exchange, Clearing and Guarantee Institution, or Central Depository 30 “License fees” refer to moneys collected by BAPEPAM for processing license applications of Per- sons intending to engage in Capital Market activities, including licenses for Securities Exchanges, Clearing Guarantee Institutions, Central Depositories, Securities Companies, Investment Advisors, and Representatives of Underwriters, Broker-Dealers and Investment Managers. “Approval fees” re- fer to moneys collected by BAPEPAM for processing applications of Persons seeking approval to en- gage in certain Capital Market activities, such as banks that wish to act as Custodians. “Registration fees” refer to moneys collected for processing the registration of a Trust-agent or a Capital Market Supporting Professional, such as an Accountant, Appraiser, Notary, or Legal Consultant. “Inspection and examination fees” refer to moneys collected for reviewing a Registration Statement or for costs of a special inspection by an Accountant in connection with an investigation. “Other fees” refer to mis- cellaneous charges, such as fees for information provided investors. All fees that are collected are revenues of the State and shall be paid to the State Treasury. In view of the scope of its duties and the anticipated expansion in its workload, BAPEPAM requires an adequate appropriation in the State Income and Expenditure Budget (APBN) so that its responsibilities may be properly met. 31 “Steps necessary to prevent loss” refer to significant, timely actions taken to protect the public against violations of this Law and its implementing regulations, including such actions as: 1. Determining how transactions that the Clearing and Guarantee Institution is not able to settle, will be settled; 2. In the event of counterfeit shares, taking essential measures, such as requesting the Di- rector General of Immigration, or the Department of Justice through the Attorney General to arrest certain Persons; 3. Requiring a Securities Exchange to change its rules that are contrary to Capital Market regulations; 4. Requiring an Issuer to use funds raised in a Public Offering for purposes stated in the Prospectus; and 5. Subject to approval by the General Meeting of Shareholders, permitting changes in the utilization of funds raised through Public Offering.
15. 15. Page 11 tioned in Article 1 item 5; and q. do any other act33 required by this Law. 32 When defining other instruments as Securities, the provisions of current laws and regulations and the authority of other agencies, such as Bank Indonesia, shall be observed. 33 “Any other act” refers to powers other than those indicated in letters a through p. Among the other powers granted to BAPEPAM are: 1. The determination of the method of preparation and submission of the annual budget and profit-utilization plan of a Securities Exchange, in accordance with Article 7 item (3); 2. Approval of required rules of a Securities Exchange, including amendments thereto, in accordance with in Article 11; 3. The determination of other services that may be provided by a Clearing and Guarantee Institution and a Central Depository as stated in Article 14 paragraph (3); and 4. The determination of the method of preparation and submission of the annual budget and profit-utilization plan of a Clearing Guarantee Institution and a Central Depository, in ac- cordance with the provisions of Article 14 paragraph (4).
16. 16. THE CAPITAL MARKET SUPERVISORY AGENCY Page 12
17. 17. Page 13 CHAPTER SECURITIES EXCHANGES, CLEARING GUARANTEE INSTITUTIONS AND CENTRAL SECURITIES DEPOSITORY Section One Securities Exchanges Paragraph I Licensing Article 6 1) Only a Company that has been granted a business license by BAPEPAM may carry on business as a Securities Exchange 34 . 2) Requirements and procedures 35 for the licensing referred to in item (1) with respect to Securities Exchanges shall be determined in Government Regulations. Paragraph 2 Purpose and Ownership Article 7 1) Securities Exchanges shall be founded for the purpose of organ- izing an orderly, fair and efficient trading market for Securities 36 . 2) To achieve the purposes mentioned in item (1), a Securities Ex- 34 A Securities Exchange is organized primarily to provide systems and facilities for members to trade Securities. Because savings of the public are invested, trading must be orderly, fair and efficient. For this reason, a Securities Exchange must be licensed by BAPEPAM to conduct its business. 35 Requirements and procedures for licensing deal with such matters as: 1. the business license; 2. provisions that must be included in the articles of association; 3. the management; 4. the capital; and 5. the economic basis for establishing the Securities Exchange. 36 Securities trading is orderly, fair and efficient when it is based on clear rules that are followed con- sistently. Prices should be determined by supply and demand. Trading efficiency is reflected in the speed and cost of transactions.
18. 18. SECURITIES EXCHANGES, CLEARING GUARANTEE INSTITUTIONS AND CENTRAL SECURITIES DEPOSITORY Page 14 change must supervise Members’ activities and provide them with facilities37 . 3) A Securities Exchange must submit an annual budget and profit- utilization plan to BAPEPAM according to BAPEPAM rules38 Article 8 Only Securities Companies that are licensed as Broker-Dealers may be shareholders of a Securities Exchange39 . Paragraph 3 Securities Exchange Rules and Inspection Units Article 9 1) A Securities Exchange must make rules on Membership, listing, fungibility of Securities, clearing and settlement of Exchange Transactions, and related Exchange matters40 . 37 The purpose of a Securities Exchange is to provide systems and facilities for trading Securities. With effective systems and facilities, shareholder-Members may trade Securities in an orderly, fair and efficient manner. Efficient systems and facilities also help Securities Exchanges to supervise their members effectively. 38 In preparing an annual budget and a profit utilization plan, a Securities Exchange must endeavor to achieve Capital Market efficiency and the Exchange must observe BAPEPAM stipulations regarding, among other things: 1. Improvement of trading systems and facilities; 2. Improvement in guidance and supervision of Members; 3. Development of efficient systems for listing Securities; 4. Development of systems for clearing and settling Exchange Transactions; 5. Improvement of information systems; 6. Development of the Capital Market through promotion and research; and 7. Training human resources. The annual budget and profit utilization plan shall be approved by the General Meeting of Sharehold- ers and submitted to BAPEPAM. After reviewing the annual budget and profit utilization plan, BAPEPAM may reject proposals that are contrary to the above objectives. Plans that are rejected by BAPEPAM shall be amended by the directors of the Exchange and after obtaining approval from the board of commissioners, resubmitted to BAPEPAM for approval. Only annual budgets and profit- utilization plans that have been approved by BAPEPAM may be implemented. 39 Considering that the purpose of a Securities Exchange is to provide facilities and systems for trad- ing Securities, and that with respect to trading, only Securities Companies may be Broker-Dealers, shareholders of a Securities Exchange are limited to licensed Securities Companies. 40 Securities Exchanges have self-regulatory powers. Exchange rules bind Members, Issuers of secu- rities listed on the Exchange, and Exchange contractors such as the Clearing Guarantee Institution, the Central Securities Depository, and Custodian banks. Rule-making on clearing and settlement must be coordinated with the Clearing Guarantee Institution. “Related matters” refers to rules on Member inspections, the coordination of trading with the Clearing Guarantee Institution and the Cen- tral Securities Depository, and rules related to new kinds of operations. Fungibility refers to an attrib- ute of Securities that relates to their interchangeability with comparable Securities with the same value, of the same Issuer.
19. 19. SECURITIES EXCHANGESSECURITIES EXCHANGES Page 15 2) Securities Exchanges shall determine the procedures for transfer- ring Securities in connection with Exchange Transactions41 . 3) Securities Exchanges may set listing fees, Membership dues, Transaction fees, and service charges42 . 4) Fees and dues referred to in item (3) shall be in accordance with functional needs of the Securities Exchange43 . Article 10 A Securities Exchange may not restrain beneficial competition nor re- strict its Members from joining other Securities Exchanges44 . Article 11 Securities Exchange rules and rule changes become effective when approved by BAPEPAM45 . Article 12 1) A Securities Exchange must have an inspection unit that is re- sponsible for periodic and surprise inspections of the Exchange and its Members 46 . 2) The supervisor of the inspection unit shall report directly to the boards of directors and commissioners of the Securities Ex- change, and to BAPEPAM, whenever matters are discovered that could materially affect a Member or the Exchange 47 . 41 Securities Exchange rules regarding the transfer of Securities must consider general practices in the Capital Market. The “transfer of Securities” also refers to the transfer of entitlements. 42 The principal revenues of a Securities Exchange are membership dues, transaction fees, and listing fees. Such revenues are intended to cover costs of services to Members related to Exchange trading, so that such operations are orderly, fair and efficient. 43 The dues and fees collected by a Securities Exchange are necessary to cover operational costs and to develop the Exchange. When income is more than sufficient for operating and development needs, the Exchange may reduce its dues and fees. 44 This Article is intended to discourage unfair competition among Securities Exchanges by allowing Securities Company to become members of more than one Exchange. 45 To ensure that rules of a Securities Exchange comply with this Law and or its implementing regula- tions, such rules must be approved by BAPEPAM in order to take effect. 46 The Securities Exchange inspection unit is intended to continuously supervise Exchange Members and management, to ensure that they comply with this Law, its implementing regulations and Securi- ties Exchange rules. 47 Reporting to the boards of directors and commissioners of the Securities Exchange and BAPEPAM is required so that they may take necessary actions to resolve problems of the Exchange and its Members.
20. 20. SECURITIES EXCHANGES, CLEARING GUARANTEE INSTITUTIONS AND CENTRAL SECURITIES DEPOSITORY Page 16 3) Securities Exchanges must make inspection reports available to BAPEPAM on request48 . Section Two Clearing Guarantee Institutions, and The Central Securities Depository Paragraph 1 Licensing Article 13 1) Only a Company that is licensed by BAPEPAM may act as a Clearing Guarantee Institution or a Central Securities Deposi- tory49 . 2) Procedures and requirements for the licensing referred to in item (1) with respect to a Clearing Guarantee Institution and a Central Securities Depository shall be stipulated in Government Regula- tions 50 . Paragraph 2 Purpose and Ownership Article 14 1) A Clearing Guarantee Institution is established for the purpose of providing clearing services 51 that are orderly, fair and efficient and of guaranteeing settlement of Exchange Transactions. 2) A Central Securities Depository is established for the purpose of providing central Custodian services and orderly, fair and efficient services relating to the settlement of Transactions. 3) Clearing Guarantee Institutions and Central Securities Depository 48 The Securities Exchanges must administer inspection unit reports properly so that they are avail- able to BAPEPAM upon request. 49 Clearing Guarantee Institution operations are a continuation of activities of the Securities Exchange through settlement of Exchange Transactions. Because public savings are involved, the Clearing Guarantee Institution must fulfill certain technical requirements to ensure that transactions are settled in an orderly, fair and efficient manner. In like manner, a Central Securities Depository, as the princi- pal Custodian for safekeeping Securities, must meet certain technical requirements. Therefore, these two institutions must be licensed by BAPEPAM. 50 Among licensing requirements and procedures are matters such as: 1. the business license; 2. required provisions in the articles of association; 3. management; and 4. capital. 51 Clearing is the process of determining and informing Securities Exchange Members of their rights and obligations of with respect to trades they have made.
21. 21. CLEARING GUARANTEE INSTITUTIONS, AND THE CENTRAL SECURITIES DEPOSITORYCLEARING GUARANTEE INSTITUTIONS, AND THE CENTRAL SECURITIES DEPOSITORY Page 17 may provide other services in accordance with BAPEPAM rules52 . 4) A Clearing Guarantee Institution as well as a Central Securities Depository must submit an annual budget and profit-utilization plan to BAPEPAM in accordance with BAPEPAM regulations53 . Article 15 1) Securities Exchanges, Securities Companies, Securities Admini- stration Agencies, Custodian banks or others approved by BAPEPAM, may be shareholders of a Clearing Guarantee Institu- tion and a Central Securities Depository54 . 2) The majority of the shares of a Clearing Guarantee Institution must be owned by a Securities Exchange55 . 52 “Other services” include such things the distribution of voting proxies and annual reports, the proc- essing of preemptive subscription rights, the receipt of Securities in a tender offer, and settlement services for foreign central Custodians. 53 The annual budget and profit-utilization plan of a Clearing Guarantee Institution or a Central Securi- ties Depository must take into consideration the goal of an efficient Capital Market and BAPEPAM provisions with respect to such matters as: 1. Improvements to clearing and guarantee services so that exchange transactions are or- derly, fair and efficient; 2. Improvements to Central Securities Depository services so that settlement of transactions is orderly, fair and efficient; 3. Improved safety of book-entry settlement of Exchange Transactions; and 4. Development of secure systems for safekeeping Securities. The annual budget and profit utilization plan of the Clearing Guarantee Institution and Central Securi- ties Depository must be approved by the General Meeting of Shareholders and submitted to BAPEPAM. When Bapepam finds that the annual budget and profit-utilization plan of a Clearing Guarantee Institution or a Central Securities Depository is not satisfactory, it may reject the proposal. When BAPEPAM rejects a budget or profit-utilization plan, the board of directors of the respective in- stitution must make changes and obtain approval of its board of commissioners before resubmitting the plan to BAPEPAM. The annual budget and profit-utilization plan can be implemented only when approved by BAPEPAM. 54 Activities of a Clearing Guarantee Institution, and a Central Securities Depository are closely related to the settlement of Securities transactions. Therefore a Clearing Guarantee Institution and a Central Securities Depository should be owned principally by users of the services of these institutions such as Securities Exchanges, Securities Companies, Securities Administration Agencies and Custodian Banks. However, when funding requirements for organizing a Clearing Guarantee Institution or a Central Securities Depository cannot be met from such sources, other Persons may be shareholders, subject to BAPEPAM approval. 55 Clearing and guaranteed settlement of Exchange Transactions are part of Securities Exchange business. Therefore, in order to assure that clearing and settlement guarantees are consistent with Securities Exchange activities, the majority of shares of a Clearing Guarantee Institution shall be owned by Securities Exchanges. Majority refers to shareholders with more than fifty percent of the is- sued and paid-in capital of the company.
22. 22. SECURITIES EXCHANGES, CLEARING GUARANTEE INSTITUTIONS AND CENTRAL SECURITIES DEPOSITORY Page 18 Paragraph 3 Rules of Clearing Guarantee Institutions and The Central Securities Depository Article 16 1) A Clearing Guarantee Institution must make rules on clearing and on the guaranteed settlement of Exchange Transactions, and its service charges56 . 2) A Central Securities Depository must make rules on central Cus- todian services and Securities Transaction settlement services, and its service charges57 . 3) The charges mentioned in items (1) and (2) shall be compatible with the functional requirements of the Clearing Guarantee Institu- tion and the Central Securities Depository58 . Article 17 Rules of a Clearing Guarantee Institution or a Central Securities De- pository, and amendments thereof, become effective when approved by BAPEPAM 59 . 56 In order to ensure that clearing and guaranteed settlement of Exchange Transactions is orderly, fair and efficient, rules protecting the interests of service-users are required. For this reason, a Clearing Guarantee Institution has authority to establish rules that bind and must be observed by all service users. 57 To protect the users’ interests, a Central Securities Depository must issue rules establishing users’ rights and obligations. 58 As non-profit institutions, services fees of a Clearing Guarantee Institution and a Central Securities Depository must be compatible with their operating and developmental costs and the interests of their users. 59 In order to ensure that rules of a Clearing Guarantee Institution or a Central Securities Depository are in accordance with this Law and its implementing regulations, such rules become effective only when approved by BAPEPAM.
23. 23. Page 19 CHAPTER INVESTMENT FUNDS Section One Legal Form and Licensing Article 18 1. An Investment Fund can be organized as a: a) Company 60 ; or b) collective investment contract 61 . 2. The Investment Funds referred to in item (1) letter a may be open-ended or closed-ended 62 . 3. An Investment Fund organized in accordance with item (1) letter a must be Company licensed by BAPEPAM. 4. An Investment Fund organized in accordance with item (1) letter b must be managed by an Investment Manager under Contract 63 . 5. Requirements and licensing procedures for Investment Funds referred to in item (3) shall be determined in Government Regulations 64 . 60 The business of an Investment Fund in corporate form is investing the proceeds of the sale of its shares in Securities traded on the Capital and the money markets. 61 A Collective investment contract is an agreement between an Investment Manager and a Custodian Bank that binds participating unit-holders and that authorizes the Investment Manager to manage the collective investment portfolio and the Custodian Bank to provide Collective Custody services. Funds organized as collective investment contracts raise funds by issuing Participation Units to investors for the purchase of Securities traded in capital and money markets. 62 An open-end Investment Fund is a Fund that offers to sell and re-purchases shares from investors up to its authorized capital, whereas a closed-end Investment Fund is a Fund that does not re- purchase shares from its shareholders. 63 To ensure that the portfolio of a collective investment contract is managed professionally, the man- agement must be done by an Investment Manager. 64 Licensing rules and procedures include such matters as: 1. the business license; 2. provisions that must be included in the articles of association; 3. management; and 4. capital
24. 24. INVESTMENT FUNDS Page 20 Article 19 1. Shareholders of open-end Investment Funds may sell their shares back to the Fund. 2. When shareholders wish to sell back their shares, an open- end Investment Fund must buy the shares. 3. Exceptions to the requirement of item (2) may be made when a) the Securities Exchange where most of the Securities in the Investment Fund Portfolio are traded, is closed65 ; b) trading is suspended on the Exchange with respect to Securities that make up most of the Investment Fund Securities Portfolio66 ; c) there is an emergency67 ; or d) there has occurred some other circumstance stipu- lated in the investment management contract ap- proved by BAPEPAM68 . Article 20 1. The Investment Manager, as administrator of an open-end Investment Fund in the form of a collective investment con- tract, may continuously sell and re-purchase Participation Units, within limits stipulated in the contract 69 . 2. An Investment Manager must re-purchase the Participation Units of holders that wish to sell their Units. 3. Exceptions from the stipulation of item (2) can be made when: a) the Securities Exchange where most of the Securities in the Investment Fund Portfolio are traded, is closed 70 ; 65 “Most of the portfolio” refers to that amount that may significantly affect the valuation of the portfolio and the Fund’s net asset value per share. Valuation of a portfolio and the per share net asset value is based on prices on the Exchange where the securities are traded. When the Exchange is closed, there are no prices to serve as a basis for evaluating of the Fund’s portfolio or the net asset value of per share. 66 “Most of the portfolio” has the same meaning as in letter a. When Exchange trading in a Security in the Fund’s portfolio is suspended, there is no price basis for the Security. 67 “Emergency” has the same meaning as in the note to Article 5, letter k. 68 The provision for “other circumstances” is meant to anticipate Capital Market developments that give rise to a situations other than those referred to in letters a, b and c and provisions ordinarily in- cluded in contracts under Article 1338 of the Indonesian Civil Code that establishes freedom of con- tract. Provisions other than those referred to in letters a, b and c, are binding only when approved by BAPEPAM. 69 Units of Participation of an Investment Fund in the form of a collective investment contract shall be redeemed by the Investment Manager for the account of the Fund. Money used by the Investment Manager to redeem Participation Units comes from the Fund’s assets. 70 “Most of the portfolio” refers to that amount that may significantly affect the valuation of the portfolio and the Fund’s net asset value per Unit. Valuation of a portfolio and the per share net asset value is based on prices on the Exchange where the securities are traded. When the Exchange is closed, there
25. 25. MANAGEMENTMANAGEMENT Page 21 b) trading is suspended on the Exchange with respect to Securities that make up most of the Investment Fund Securities Portfolio71 ; c) there is an emergency72 ; or d) some other circumstance stipulated in the investment management contract approved by BAPEPAM has occurred73 . Section Two Management Article 21 1. Administration of Investment Funds, whether in corporate or collective investment contract form, shall be carried out by an Investment Manager under contract74 . 2. Parties to an Investment Fund management contract with re- spect to Funds in corporate form, shall be the board of direc- tors and the Investment Manager75 . 3. Parties to an Investment Fund management contract are the Investment Manager and the Custodian bank in the case of a open-end collective investment contract, and this contract in- cludes the management contract 76 . 4. Further regulation of the provisions of items (2) and (3) shall be made by BAPEPAM 77 . are no prices to serve as a basis for evaluating of the Fund’s portfolio or the net asset value of per Unit. 71 “Most of the portfolio” has the same meaning as in letter a. When Exchange trading in a Security in the Fund’s portfolio is suspended, there is no price basis for the Security. 72 “Emergency” has the same meaning as in the note to Article 5, letter k. 73 “Other circumstances” has the same meaning as in Article 19, item (3) letter d. 74 “Administration of an Investment Fund” means management of an Investment Fund by an Invest- ment Manager. 75 A management contract includes such things as: 1. Portfolio diversification policy with respect to the money market and the Capital Market; 2. Diversification policy with respect to bonds and shares; 3. Diversification policy with respect to industry groups; and 4. Prohibitions regarding certain types of investment. 76 A management contract includes such things as: 1. Portfolio diversification policy with respect to the money market and the Capital Market; 2. Diversification policy with respect to bonds and shares; 3. Diversification policy with respect to industry groups; and 4. Prohibitions regarding certain types of investment. 77 Further regulation refers to such matters as:
26. 26. INVESTMENT FUNDS Page 22 Article 22 On every Exchange day, the Investment Manager shall determine the fair market value of Securities in the Portfolio of an open-end Invest- ment Fund, whether organized as a corporation or as a collective in- vestment contract, in accordance with BAPEPAM rules78 . Article 23 Net asset value shall be the basis for evaluating shares of an open- end, corporate Investment Fund and Participation Units of a collective investment contract79 . Article 24 1. An Investment Fund may neither borrow nor lend money80 . 2. An Investment Fund may not acquire shares or Participation Units of another Investment Fund. 3. Further restrictions on Investment Fund operations may be set by BAPEPAM81 . Article 25 1. The assets of an Investment Fund must kept with a Custo- dian bank 82 . 2. The Custodian bank mentioned in item (1) may not be Affili- ated with the Fund’s Investment Manager 83 . 1. Guidelines for investment management contracts; and 2. Submission procedures for draft investment management contracts. 78 The fair market value of a Security that is actively traded on a Securities Exchange is its market price or quotation. The fair market value may differ from the market price when a Security is not ac- tively traded or has not been traded for some time. In such cases, fair market value is determined in accordance with criteria established by BAPEPAM. An “Exchange day” is any day on which a Secu- rities Exchange is open for business. 79 “Net asset value” is the fair market value of the Securities portfolio and other assets of a Fund, less the liabilities of the Fund. 80 This provision does not prohibit the purchase of bonds or other debt Securities by an Investment Fund, nor the deposit of cash in banks. 81 Investment limitations include such things as: 1. The amount invested in a single Security; 2. Limitations on investment in foreign Securities; and 3. Certain instruments that may not be purchased by the Fund. 82 Investment Fund assets include cash and such Securities as deposit certificates, commercial paper, shares, bonds, and promissory notes. The mandatory deposit of Investment Fund assets with a Custodian Bank is intended to protect the Fund’s assets. For the same reason, the function of Cus- todian is separate from the function of Investment Manager. 83 To avoid conflicts of interest in Investment Fund administration, the powers of the both the Invest- ment Manager and the Custodian Bank are limited. The Investment Manager acts only as portfolio
27. 27. MANAGEMENTMANAGEMENT Page 23 3. Investment Funds must calculate and publish their net asset value84 . Article 26 1. Parties to the contract for custody of the assets of an Invest- ment Fund in corporate form, shall be the board of directors and the Custodian bank85 . 2. A collective investment contract shall include the custodial agreement and shall be made by the Investment Manager and the Custodian bank86 . 3. Further regulation87 regarding items (1) and (2) shall be made by BAPEPAM. Article 27 1. To the extent possible, an Investment Manager must, in good faith and in a fully responsible manner, carry out his duties in the sole interest of the Investment Fund88 . 2. An Investment Manager that does not carry out his duties in accordance with item (1) shall be liable for losses resulting from his actions 89 . manager, while the Custodian provides safekeeping and administrative services for Fund assets. As an additional safeguard, Investment Managers may not be affiliated with the Fund’s Custodian Bank. 84 The net asset value of open-end Investment Funds must be calculated and published each trading day. The net asset value of a closed-end Investment Fund must be calculated and published at least once a week. 85 The board of directors of an Investment Fund oversees the management and administration of the Fund, including the custody of Fund assets. Therefore, the board of directors must contract with a Custodian Bank with respect to Investment Fund assets. 86 A custodial contract must include at least the following provisions: 1. Investment Fund Securities must be segregated from those of the Custodian; 2. Changes in Fund assets must be recorded; 3. A Custodian may not terminate its services until a new Custodian is appointed; and 4. Certain reports must be prepared and submitted to the Investment Manager and to BAPEPAM. 87 Such regulation includes such matters as: 1. guidelines for a custodial contract; and 2. procedures for submitting a draft collective custody contract. 88 Because Investment Managers administer public funds, there must be maximum assurance that the Investment Manager acts with good intentions and full responsibility with respect to the interests of the Fund. 89 An Investment Manager is liable for the Fund’s losses that result from its irresponsible management or bad faith.
28. 28. INVESTMENT FUNDS Page 24 Article 28 1. Shares of a corporate open-end Investment Fund have no par value90 . 2. At least one percent of the authorized capital of a corporate Investment Fund shall be issued and paid-in when the fund is established91 . 3. Shares of a corporate Investment Fund may be repurchased and resold without the approval of the General Meeting of Shareholders92 . 4. The re-purchase of shares of a corporate Investment Fund shall be made from the Fund’s assets93 . Article 29 1. A corporate Investment Fund is not required to maintain re- serves. 2. BAPEPAM shall determine the reserves that may be main- tained by an Investment Fund94 . 90 The value of Investment Fund shares is based on the net portfolio value. As the portfolio value changes, the net asset value per share also changes. Investors buy and sell Fund shares at net asset value. From the time the Fund is established, the price of Fund shares is always equal to the net asset value per share. Because the net asset value per share constantly changes with the value of the portfolio, Investment Fund shares are issued without par value. 91 The initial capital of a Fund is supplied by the founder in order to start operations. A Fund’s founder need only pay in one percent of the authorized capital. The purpose of a Fund is to gather public savings for portfolio investment. Therefore, additional capital, up to the amount authorized, is ob- tained through a Public Offering,. 92 Approval of the General Meeting of Shareholders is not required, because the re-purchase of In- vestment Fund shares and subsequent re-sales occur constantly as a result of shareholder redemp- tions. 93 The Fund’s assets include cash and proceeds from the sale of securities from the Fund’s portfolio. 94 In principle, profits of a corporate Investment Fund are distributed as dividends to shareholders. In- vestment Funds may not borrow from third parties. Therefore, reserve are not needed for the protec- tion of creditors. However, reserves may be maintained to increase the size of the Fund and the value of its investment portfolio.
29. 29. Page 25 CHAPTER SECURITIES COMPANIES, SECURITIES COMPANY REPRESENTATIVES AND INVESTMENT ADVISORS Section One Licensing of Securities Companies Article 30 1. Only a Company licensed by BAPEPAM may carry on busi- ness as a Securities Company 95 . 2. A Securities Company licensed under item (1) may carry on business as an Underwriter, Broker-Dealer and/or Investment Manager and any other business permitted by BAPEPAM rules 96 . 3. A Securities Company license is not required when a Person acts as an Underwriter, Broker-Dealer and/or Investment Manager only with respect to credit Securities that have a maturity of less than one year, or certificates of deposit, in- surance policies, Securities issued or guaranteed by the In- donesian Government or other Securities determined by BAPEPAM 97 , 4. Further licensing requirements and procedures with respect to Securities Companies shall be stipulated in Government Regulations 98 . 95 Securities Company must meet certain licensing requirements, such as sufficient expertise and capital. 96 An Underwriter’s license also serves as a license to act as a Broker-Dealer. Securities Companies that are licensed Underwriters may carry on business as Broker-Dealers. However, a Securities Com- pany licensed only as a Broker-Dealer may not act as an Underwriter. 97 Persons that act as Underwriters, Broker-Dealers, or Investment Managers only with respect to the types of Securities described in this item are not required to be licensed by BAPEPAM. However, be- cause Persons licensed by BAPEPAM may also deal in such exempt securities, and because opera- tions in these Securities may give rise to new types of Securities that are not regulated or supervised by other government agencies, BAPEPAM has the authority to regulate such activities by virtue of this Law and its implementing regulations. 98 Licensing requirements and procedure include such things as: 1. Requirements with respect to management, capital and expertise; and 2. Procedures for submitting license applications.
30. 30. SECURITIES COMPANIES, SECURITIES COMPANY REPRESENTATIVES AND INVESTMENT ADVISORS Page 26 Article 31 A Securities Company is accountable for all Securities-related activi- ties of its directors, employees and other Persons that work for the Company99 . Section Two Licensing of Securities Company Representatives Article 32 1. Only individuals licensed by BAPEPAM may act as Under- writer Representatives, Broker-Dealer Representatives or In- vestment Manager Representatives100 . 2. Further licensing requirements and procedures for Securities Company Representatives shall be stipulated in Government Regulations101 . Article 33 1. An individual licensed as an Underwriter Representative may also act as a Broker-Dealer Representative 102 . 2. An individual licensed as an Underwriter Representative, Bro- ker-Dealer Representative or Investment Manager Repre- sentative may only be employed by one Securities Com- pany 103 . 99 Securities-related activities refer to the business activities of the Securities Company, such as act- ing as an Underwriter, Broker-Dealer, or Investment Manager. “Employee” has the same meaning as defined in the note to Article 1 item 1 letter b. “Other Persons that work for the Company” includes non-employees authorized by the Company to perform specific duties. 100 An Underwriter’s Representative acts for the Securities Company with respect to its Securities un- derwriting business. A Broker-Dealer’s Representative acts for the Securities Company with respect to its Securities trading business An Investment Manager’s Representative acts for the Securities Com- pany with respect to its Securities Portfolio management business. 101 Licensing requirements and procedure include such things as: 1. Requirements with respect to experience and expertise; and 2. Procedures for submitting license applications. 102 Since a licensed Underwriter’s Representative is also a licensed Broker-Dealer’s Representative, a licensed Underwriter’s Representative may represent the Company in both the Underwriting and Bro- ker-Dealer business. However, an individual licensed only as a Broker-Dealer’s Representative may only represent a Securities Company with respect to its Broker-Dealer activities. 103 The individuals in question work both for a company and its clients. In order to avoid conflicts of interest, Underwriter’s Representatives, Broker-Dealer’s Representatives and Investment Manager’s Representatives may work for only one Securities Company.
31. 31. CODE OF CONDUCTCODE OF CONDUCT Page 27 Section Three Licensing of Investment Advisors Article 34 1. Only Persons licensed by BAPEPAM may engage in the business of Investment Advisor104 . 2. Further requirements and licensing procedures for Invest- ment Advisors shall be stipulated in Government Regula- tions105 . Section Four Code of Conduct Article 35 Securities Companies and Investment Advisors are prohibited from: a) influencing or pressuring clients to act in ways con- trary to their interests 106 ; b) disclosing a client’s name or business, unless authorized in writing by the client or otherwise re- quired by current law and regulations; c) concealing material information from clients or mak- ing misrepresentations regarding their business ca- pabilities or financial condition 107 ; d) recommending that clients buy or sell Securities, without revealing that the Securities Company or In- vestment Advisor has an interest in such Securi- ties 108 ; or 104 The business of an Investment Advisor is to give advice with respect to the sale or purchase of Se- curities, for a fee. An Investment Advisor must have certain qualifications, such as proficiency in Se- curities analysis. The scope of the Investment Advisory business includes the activities of a Securities Rating Agency. To ensure they have adequate qualifications, Investment Advisors must be licensed by BAPEPAM in order to do business in the capital market . 105 Licensing requirements and procedure include such things as: 1. Competency requirements, such as being a licensed Investment Manager’s Representa- tive; and 2. Procedures for submitting license applications. 106 The business of Securities Companies and Investment Advisors is based on trust. In going about their business, Securities Companies and Investment Advisors must give priority to protecting the le- gitimate interests of their clients. They must avoid actions contrary to the interests of their clients. For example, a Securities Company salesman must not persuade a customer with limited resources to in- vest in high-risk Securities. 107 In view of the trust and confidence of their clients, Securities Companies and Investment Advisors must honestly inform customers regarding their professional skills and financial situation, truthfully disclosing all information that is relevant. 108 This prohibition is meant to avoid possible conflicts of interest, by requiring a Securities Company or Investment Advisor to disclose any interests they may have certain Securities. When Securities Companies or Investment Advisors and their clients have interests in the same Securities, the clients
32. 32. SECURITIES COMPANIES, SECURITIES COMPANY REPRESENTATIVES AND INVESTMENT ADVISORS Page 28 e) buying or holding in its name or in the name of an Af- filiated Person, Securities of an over-subscribed Pub- lic Offering, with respect to which the Securities Company is the Underwriter or selling agent, until or- ders of Unaffiliated Persons are filled109 . Article 36 Securities Companies and Investment Advisors must110 : a) know the background, financial situation, and invest- ment objectives of their clients; and b) prepare and maintain proper records of their financial condition, orders, and Transactions Article 37 Securities Companies must follow procedures stipulated by BAPEPAM when receiving clients’ Securities and must: a) register clients’ Securities in accounts that are sepa- rate from accounts of the Securities Company111 ; and b) maintain secure facilities for safekeeping clients’ as- sets, with separate records for each client 112 . must be informed of such interest before making a recommendation. An interest in Securities exists when: 1. Persons, directly or indirectly, individually or jointly with others, own Securities or are en- titled to dividends, interest or proceeds from the sale and or use of the Securities; 2. Persons are bound by covenants or agreements to buy Securities, or have the right to transfer or change the ownership of Securities, or have preemptive subscription rights; 3. Persons are under obligation to buy unsold Securities in a Public Offering; and 4. Persons, individually or jointly with others, control any Person referred to in the previous three items. 109 Besides serving to mobilize public funds, Public Offerings are meant to create liquidity for Securi- ties. Wide distribution of Securities among investors is important. When Securities are only held by a few investors, distribution is insufficient to create liquidity. On the other hand, liquidity creates oppor- tunities for investors to use the market to increase their wealth. To achieve this end, when there is strong demand for a Public Offering, Underwriters must give priority to unaffiliated subscribers, in- stead of their own orders, or orders of their sales agents or other affiliated Persons. 110 Because the relationship between Securities Companies and Investment Advisors and their clients is based on trust, they should know the objectives, qualifications and background of their clients. With such knowledge, the Securities Company or Investment Advisor is able adjust its services to fit the needs of each client. Securities Companies and Investment Advisors must avoid situations in which the trust of their clients is abused or actions in their own interest that are against the interest of their clients. In addition, Securities Companies or Investment Advisors must maintain proper records of cli- ents’ orders, transactions and investment activities. In this way, at all times documentation is avail- able as proof when needed by clients. 111 Clients’ Securities in safekeeping with a Securities Company are not part of the Securities Com- pany’s assets. For this reason, clients’ Securities must be maintained in accounts that are segregated from accounts of the Securities Company. Since clients’ Securities are not assets of the Securities Company, when the Company is bankrupt or is liquidated, clients’ Securities are not part of the assets in bankruptcy or liquidation. Therefore, creditors or others with claims against the Securities Com- pany have no rights with respect to the Securities of clients in custody with the Securities Company. 112 Besides being obligated to segregate client’s Securities from their own assets, a Securities Com- pany must also keep separate records for each client to avoid confusing ownership of Securities. A
33. 33. CODE OF CONDUCTCODE OF CONDUCT Page 29 Article 38 A Broker-Dealer may not execute transactions on a Securities Ex- change for his own account or for the account of Affiliated Persons, until all buy and sell orders with respect to the same Securities for Un- affiliated clients have been executed113 . Article 39 An Underwriter must fulfill all terms of the underwriting agreement disclosed in the Registration Statement114 . Article 40 An Underwriter must disclose in the Prospectus115 any Affiliation or other material relationship with the Issuer . Article 41 A Broker-Dealer that is the Investment Manager of an Investment Fund, or a Broker-Dealer that is Affiliated with a Fund’s Investment Securities Company must also provide safe storage facilities for assets to reduce the chance that cli- ents’ securities will be lost, damaged or stolen. With separate accounts, clients of Securities Compa- nies can readily determine the number of Securities they own and use such records as evidence 113 A Broker-Dealer may not purchase Securities for his own account or for the account of an affiliated Person, when there is an open purchase order with better terms from a non-affiliated Person with re- spect to the same Securities. However, a Broker-Dealer may purchase Securities for his own ac- count or for the account of an affiliated Person on less favorable terms than orders of non-affiliated Persons. A Broker-Dealer may not sell Securities for his own account or for the account of an affili- ated Person, when there is an open selling order on more favorable terms from a non-affiliated Person with respect to the same Securities. A Broker-Dealer may sell Securities for his own account or for the account of an affiliated Person on less favorable terms than orders of non-affiliated Persons. For example, if an non-affiliated Person gives an order to buy shares of PT X for Rp 10,000.00, the Bro- ker-Dealer may purchase the same shares for his own account or for the account of an affiliated per- son for more than Rp 10,000.00. When a non-affiliated Person gives an order to sell shares of PT X for Rp 10,000.00, the Broker-Dealer may sell the same type of shares for his own account or for the account of an affiliated Person for less than Rp 10,000.00. 114 The agreement between the Underwriter and the Issuer with respect to a Public Offering must be disclosed in the Prospectus and the parties are required to comply with its terms. An Underwriting contract may be on a full commitment or best efforts basis. Under a full commitment contract, Un- derwriters must purchase unsold Securities. Under a best efforts contract, Underwriters must do their best to sell the Securities, but are not obliged to purchase Securities that are not sold. 115 Issuers can issue Securities without using an Underwriter. In such cases, the Issuer determines the price. Underwriters may assist Issuers in marketing or may provide Issuers with assurances that they will receive the expected proceeds from the sale. In either case, the investor decides whether or not to purchase the Securities. Investors consider offerings in which the Underwriter is affiliated with the Issuer as similar to offerings by an Issuer acting without an Underwriter. When the Underwriter is affiliated with the Issuer, the investor is aware of possible conflicts of interest. When clearly disclosed in the Prospectus, the relationship between the Issuer and the Underwriter is not the decisive factor for investors. With disclosure, investors may evaluate the degree of independence of the Underwriter with respect to the Issuer. “Other material relationships” include such things as a business or debtor- creditor relationship between an Issuer and an Underwriter or a contract to provide certain services.
34. 34. SECURITIES COMPANIES, SECURITIES COMPANY REPRESENTATIVES AND INVESTMENT ADVISORS Page 30 Manager, may not charge commissions to the Fund that are higher than would be charged by an Unaffiliated Broker-Dealer116 . Article 42 An Investment Manager or an Affiliated Person may not receive any form of direct or indirect compensation that might influence that In- vestment Manager to buy or sell Securities for the Investment Fund117 . 116 This is to safeguard the Investment Fund against excessive commissions charged by a Securities Company that is both Investment Manager and Broker-Dealer for the Fund, or by a Broker-Dealer that is affiliated with the Investment Manager 117 Investment Managers may not receive compensation of any type that influences their decisions to buy or sell Securities for an Investment Fund. Such decisions must be based solely on the interests of share or unit-holders of the Fund. An Investment Manager providing Broker-Dealer services may receive commissions without violating Article 41, as long as such commissions are not excessive. Other compensation related to fund management and stipulated in the investment management con- tract is also permitted.
35. 35. Page 31 CHAPTER CAPITAL MARKET SUPPORTING INSTITUTIONS Section One Custodians Paragraph 1 Approval Article 43 1. Only a Central Securities Depository, a Securities Company or a Commercial bank approved by BAPEPAM may carry on business as a Custodian 118 . 2. Further requirements and procedures for approving commer- cial banks as Custodians shall be stipulated in Government Regulations 119 . Paragraph 2 Securities in Custody Article 44 1. A Custodian is responsible for safekeeping an account- holder’s Securities and for fulfilling the conditions of the ac- count-holder’s contract with the Custodian. 2. Securities on deposit must be maintained and recorded sepa- rately. 3. Securities in safekeeping or posted to a Securities account with a Custodian are not part of the Custodian’s assets120 . 118 Safekeeping is an activity of Commercial Banks that is permitted under banking laws. Therefore, Commercial Banks do not require a license from BAPEPAM to provide safekeeping services. To act as Custodians, Commercial Banks must be approved by BAPEPAM since custody involves a wider range of services than safekeeping and relates to activities of the Central Securities Depository, Secu- rities Companies, and Investment Funds. Neither A Central Securities Depository nor a Securities Company requires a separate license or approval to act as a Custodian, because their licenses al- ready cover Custodial activities. 119 Approval requirements and procedures include such things as: 1. Requirements regarding facilities; 2. Requirements with respect to expertise. 3. Qualifications for supervisors of Custodial activities; and 4. Procedures for submitting an application for approval.
36. 36. CAPITAL MARKET SUPPORTING INSTITUTIONS Page 32 Article 45 A Custodian may deliver Securities or funds recorded in a Securities account only upon written instruction from the account-holder or from a Person authorized to act in the account-holder’s name121 . Article 46 A Custodian must reimburse account-holders for losses resulting from the Custodian’s mistake122 . Article 47 1. A Custodian or an Affiliated Person may not give out infor- mation on a client’s Securities account to any Person other than123 : a) a Person authorized in writing by the account-holder or his heirs; b) the police, public prosecutor or a judge with regards to criminal proceedings; c) the Court with regards to civil proceedings on request of the disputing Persons; d) tax officials for tax purposes; e) BAPEPAM, a Securities Exchange, a Clearing Guar- antee Institution, an Issuer, a Securities Administra- tion Agency or another Custodian in the execution of their respective functions; or f) a Person serving the Custodian, including a consult- ant, a legal advisor and a public accountant. 2. Other than as necessary in carrying out their duties, Persons mentioned in letters a through f of item (1) may not disclose information received from a Custodian or an Affiliate con- 120 Because Securities held in Securities accounts are not property of the Custodian, such Securities cannot be taken or seized by the creditors of the Custodian. When a Custodian is bankrupt, the Secu- rities deposited with the Custodian are excluded from the bankruptcy assets and must be returned to the account-holders. 121 “Written instruction” includes a signed letter or any other type of instruction authorized in the con- tract between the Custodian and the account-holder. 122 Since Securities held by a Custodian in a Securities account are under his administration, the ac- count-holders must be safeguarded against losses for which the Custodian is responsible, such as: 1. loss or damage to assets and related records; 2. delay in transferring assets; or 3. failure to collect income on assets, such as dividends, interest and other rights. 123 Exceptions are necessary to make it possible to implement systems for trading Securities, includ- ing related clearing services, settlement guarantees, and custody of securities, since the institutions involved need information on Securities accounts. For such purposes, Securities Exchanges and Clearing Guarantee Institutions must have access to information on Securities accounts with Custo- dians, including Custodian Banks and the Central Securities Depository. In addition, Securities Ad- ministration Agencies need information on Securities accounts with Custodians, including Custodian Banks and the Central Securities Depository, in order to keep records of Security-holders and to dis- tribute entitlements, such as dividends. Exceptions are also needed for BAPEPAM to carry out its supervisory function under the powers stipulated in this Law.
37. 37. SECURITIES ADMINISTRATION AGENCIESSECURITIES ADMINISTRATION AGENCIES Page 33 cerning a client’s Securities account124 . 3. Requests for information on clients’ Securities accounts re- ferred to in letters b, c, and d of item (1) shall be submitted for approval to BAPEPAM by the Commander-in-Chief of the Police Force of the Republic of Indonesia, the Attorney Gen- eral, the Chairman or official of the Supreme Court, or the Di- rector General of Taxation, stating the name and rank of the police officer, prosecutor, judge, or tax official, and the name or number of the account-holder and the reasons and justifi- cation for the request125 . Section Two Securities Administration Agencies Article 48 1. Only a Company that is licensed by BAPEPAM may carry on business as a Securities Administration Agency. 2. Further requirements and procedures for the Securities Ad- ministration Agency license referred to in item (1) shall be stipulated in Government Regulations 126 . Article 49 1. A Securities Administration Agency may record Securities ownership in the Issuer’s register of Security-holders, and may distribute entitlements on such Securities, in accordance with the written contract between the Issuer and the Sec- urities Administration Agency; 2. The contract mentioned in item (1) must clearly indicate the rights and obligations of the Securities Administration Agency and the Issuer, as well as their duties to Security-holders. 124 Although Persons indicated in item (1), letters a through f, are authorized to have access to infor- mation on Clients’ Securities accounts with Custodian and their affiliated Persons, such information may not be passed on freely to other Persons. Information regarding Securities accounts only may be passed to others that needed it to carry out their duties. For example, a Securities Administration Agency needs information about the Securities accounts of Clients of a Central Securities Depository in order to give Issuers the names of shareholders that are entitled to participate in the General Meet- ing of Shareholders. 125 The named official is the individual who is authorized to have access to information from Securities accounts by the Commander-in-Chief of the Police Force of the Republic of Indonesia, the Attorney General, or the Chairman of the Supreme Court. 126 Licensing requirements and procedures refer to such matters as: 1. requirements concerning the availability of facilities; 2. qualifications of staff experts; 3. capital requirements; and 4. procedures for submitting an application for approval.
38. 38. CAPITAL MARKET SUPPORTING INSTITUTIONS Page 34 Section Three Trust-Agents Article 50 1. The function of Trust-Agent may be performed by127 : a) a commercial bank; and b) any other Person permitted by Government Regula- tion 2. Commercial banks or other Persons mentioned in item (1) must register with BAPEPAM before acting as a Trust- Agent128 . 3. Further requirements and procedures for the registration of Trust-Agents shall be stipulated in Government Regula- tions129 . Article 51 1. A Trust-Agent may not be Affiliated with an Issuer, except for Government-owned Trust-Agents 130 . 2. A Trust-Agent shall represent the interests of the credit Secu- rity-holders in and out of court 131 . 3. A Trust-Agent may not have any credit relationship with an Issuer that exceed limits set by BAPEPAM as representing a possible conflict of interests between the Trust-Agent as 127 Because debt securities acknowledge the indebtedness of one Person with respect to widely- dispersed creditors, Trust-agents are needed in order to represent these creditors and manage their interests. In order that Trust-agents may represent the interests of holders of debt securities, Com- mercial Banks may engage in trust-agency activities since they have wide business connections. However, as the Capital Market grows, Persons other than Commercial Banks may be permitted by Government Regulation to act as Trust-agents. 128 Trust-agency is one of the functions of Commercial Banks under the banking laws. Therefore, Commercial Banks do not require a license from BAPEPAM to act as Trust-agents. Nevertheless, in order to undertake such activities, Commercial Banks still need to register with BAPEPAM. 129 Licensing requirements and procedure for Trust-agents include such things as: 1. Requirements with respect to expertise; 2. Capital requirements; and 3. Procedures for submitting registration applications. 130 These requirements are intended to prevent conflicts of interest between a Trust-agent as the rep- resentative of creditors and the interests of the Trust-agent as a Person affiliated with the Debt Issuer. This is necessary so that a Trust-agent does its duty to fully protect the interests of creditors with in- dependence. 131 When signing a trust-agency contract with an Issuer, the Trust-agent agrees to represent the holders of the debt securities. Such representation becomes effective when the securities have been allocated to these creditors. In this process, the Law authorizes Trust-agents to represent debt secu- rity-holders of in court to defend their interests as creditors. A Trust-agents authority encompasses claiming the rights of debt security-holders, both in and out of court, without the need for specific powers-of-attorney from these creditors.
39. 39. TRUST-AGENTSTRUST-AGENTS Page 35 creditor and as a representative of credit Security-holders132 . 4. The use of Trust-Agent services shall be regulated by BAPEPAM133 . Article 52 The terms of the trust-agency agreement between an Issuer and a Trust-Agent shall be regulated by BAPEPAM134 . Article 53 A Trust-Agent must reimburse credit Security-holders for losses due to its negligence in performing its duties under this Law and the imple- menting regulations or under the terms of the Trust-Agency agree- ment135 . Article 54 A Trust-Agent may not represent the interests of both the holders and guarantors of the same credit Securities 136 . 132 This is to avoid conflicts of interest between a Trust-agent in its capacity as representative of debt security-holders and the Trust-agent as a creditor or debtor of the Issuer. This is necessary so that the Trust-agent performs its functions independently so as to fully protect the interests of debt secu- rity-holders. 133 This item refers to the need of an Issuer of bonds or other long-term debt Securities to use Trust Agency services. 134 BAPEPAM may stipulate that the terms of the Trust-agency agreement cover matters such as: 1. the principal, interest and other benefits to be paid by the Issuer; 2. the maturity date; 3. the guarantee (if any); 4. the paying agent; and 5. the duties and functions of the Trust-agent. 135 This Article gives debt security-holders the right to claim compensation from a Trust-agent that, through negligence to its duties, is the cause of their loss. 136 This Article prevents a Trust-agent from having a conflict of interest between its role as represen- tative of the interests of debt security-holders and interests it would have as a guarantor that was bound to fulfill the Issuer’s obligations in the event of default.
40. 40. CAPITAL MARKET SUPPORTING INSTITUTIONS Page 36
41. 41. Page 37 CHAPTER COLLECTIVE CUSTODY AND THE SETTLEMENT OF EXCHANGE TRANSACTIONS Section One Settlement of Securities Exchange Transactions Article 55 1. Settlement of Securities Exchange Transactions may occur by book-entry, physical delivery or other means stipulated in Government Regulations 137 . 2. A Clearing Guarantee Institution must guarantee settlement of Securities Exchange Transactions 138 . 3. Procedures for guaranteeing the settlement of Securities Ex- change Transactions mentioned in items (1) and (2), shall be stipulated by contracts with the Securities Exchange, the Clearing Guarantee Institution, and the Central Securities Depository 139 . 4. In guaranteeing the settlement of Securities Exchange Transactions as stipulated in item (2), a Clearing Guarantee Institution may require collateral from users of its services. 137 “Book-entry settlement” refers to the fulfillment of rights and obligations arising from an Exchange Transaction, by means of debits and credits to Securities accounts with a Custodian, including elec- tronic transfers. The transfer of rights to such Securities occurs at the time of delivery, or at the time the Securities are debited to one Securities account and credited to another. “Physical Delivery” refers to settlement of Exchange Transactions by conveyance of Security certificates between Broker- Dealers. “Other means of settlement of Exchange Transactions” refers to such methods as: 1. posting to the Issuer’s registry of Security-holders rather than posting to Securities ac- counts at a Custodian; 2. settlements between countries or in other countries; 3. electronic settlement or settlement using new technology; 4. other means of settlement that may become necessary as are result of new laws and regulations. 138 Because Exchange Transactions are inter-related, all trades must be settled by the parties. Since prior transactions are the basis for subsequent Transactions, the cancellation of a trade affects suc- ceeding trades. A Clearing Guarantee Institution is necessary to guarantee settlement of Exchange contracts by assuring that the obligations of Exchange Members are met. 139 Because the functions of Securities Exchanges, Clearing Guarantee Institutions, and the Central Securities Depository are linked and inter-related, from the execution of the trade until settlement, these institutions must ensure that their activities are performed with efficiency and safety. To this end, these institutions must agree among themselves in writing with respect to such matters as pro- cedures and scheduling for trading and settlement, methods of acquiring collateral from Exchange Members and the amount of collateral required, and transaction and settlement fees.
42. 42. COLLECTIVE CUSTODY AND THE SETTLEMENT OF EXCHANGE TRANSACTIONS Page 38 5. The contracts and collateral guarantees mentioned in items (3) and (4) shall be subject to BAPEPAM approval. Section Two Collective Custody Article 56 1. Securities in Collective Custody at a Central Securities De- pository shall be recorded in the Issuer’s registry of Security- holders in the name of the Central Securities Depository as the representative of its account-holders140 . 2. Securities in Collective Custody at a Custodian bank or a Se- curities Company and posted to a Securities account at a Central Securities Depository, shall be registered in such ac- count in the name of the Custodian bank or Securities Com- pany as the representative of its account holders141 . 3. Securities in Collective Custody at a Custodian bank that are part of a Securities Portfolio under a collective investment contract and that are not deposited in Collective Custody at a Central Securities Depository, shall be recorded in the Is- suer’s registry of Security-holders in the name of the Custo- dian bank as the representative of owners of Participation Units of the collective investment contract 142 . 4. Issuers must provide either certificates or confirmations to the Central Securities Depository referred to in item (1) or to the Custodian bank referred to in item (3), as proof of registry in the Issuer’s record of Security-holders 143 . 5. Central Securities Depository, Custodian banks, and Securi- 140 This provision provides legal assurance that holders of accounts at a Central Securities Depository are recognized as the owners of the Securities or as Persons with rights with respect to the Securities, while their interests are represented by the Central Securities Depository in whose name the Securities are recorded in the Issuer’s registry of Security-holders. 141 This provision provides legal assurance that account-holders at Custodian Banks and Securities Companies are either the owners or Persons with other rights with respect to Securities recorded in Securities accounts at the Central Securities Depository, even though the names of the Custodian Banks and Securities Companies are recorded on the accounts at the Central Securities Depository. In this case, Custodian Banks and Securities Companies represent the interests of their account- holders. 142 This provision provides legal assurance that all holders of Participation Units in an Investment Fund that is organized as a collective investment contract, are the owners or Persons with other rights with respect to the Securities in the Fund’s portfolio. The Custodian Bank in whose name the Securi- ties are registered on the Issuers registry of Security-holders, represents the owners. In this case, the Custodian Bank acts solely as representative of the owners of Participation Units in the Investment Fund. 143 A Confirmation may be a written statement or any other form that indicates the number of Securi- ties that are registered in the name of the Central Securities Depository in the Issuer’s record of Secu- rity-holders, as representative of the interests of its account holders, or Securities registered in the name of a Custodian Bank that represents the interests of holders of Participation Units in an Invest- ment Fund that is organized as a collective investment contract.
43. 43. COLLECTIVE CUSTODYCOLLECTIVE CUSTODY Page 39 ties Companies must provide account-holders with confirma- tions144 that serve as proof of registry in the Securities ac- counts mentioned in items (1) and (2). Article 57 Securities In Collective Custody are interchangeable with and equivalent to other Securities of the same type and class of the same Issuer145 . Article 58 1. A Custodian shall record the transfer of ownership of Securi- ties in Collective Custody by debiting and crediting the re- spective Securities accounts with the number of Securities transferred. 2. On the instruction of the Central Securities Depository or Custodian bank, the Issuer must record on its books, the transfer of Securities out of Collective Custody, from the name of the Central Securities Depository or Custodian bank, to the name of the Person indicated 146 . 3. An Issuer shall refuse to record in Collective Custody, Secu- rities that have been reported lost or destroyed, unless the Person requesting such registry can provide the Issuer with proof or a guarantee that it considers sufficient 147 . 144 This provision requires a Central Securities Depository, a Custodian Bank and a Securities Com- pany to provide proof of registration in the form of confirmations to their account-holders. 145 Securities in Collective Custody are deemed to be fungible, so that settlement of Securities trans- actions is more efficient. In this respect, Securities are considered as having the same characteristics as money. For example, when someone withdraws money from a bank account, he cannot claim that the bank deliver money that is the same tangible currency he had previously deposited. In the same way, holders of Securities accounts cannot claim ownership of specific Securities based on certificate numbers, serial numbers or other characteristic of the Securities that had been deposited in the ac- count. Account-holders can only lay claim to a certain quantity of Securities of a specific type and class. 146 Although the name of a Central Securities Depository or Custodian Bank is recorded in an Issuer’s registry of Security-holders, an account-holder may instruct the Central Securities Depository or Cus- todian Bank to transfer the Securities in the Issuer’s registry of Security-holders into his own name or into the name of any other Person that he indicates. A Central Securities Depository or Custodian Bank, on receiving such instructions, must instruct the Issuer to record the Securities in its registry of Security-holders, in the name of the account-holder or such other Person indicated by the account- holder. Issuers, on receiving such instructions, must execute them in accordance with this item. 147 This provision is to ensure that Securities in Collective Custody are valid, which means that they are clear from any legal defect including claims from anyone with respect to any rights to such Secu- rities. This is necessary so that Securities in Collective Custody are truly available for trading. Secu- rities that have been reported as lost or destroyed are considered to be defective, and therefore, can- not be included in Collective Custody. However, a Person may be able to prove that he owns the lost or destroyed Securities and that these Securities have never been transferred to anyone else. In this case, an Issuer may decide to allow the registry of such Securities in Collective Custody and to take responsibility for such registration.

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