Written Test Answer – Tengku Adika Suryatama

1. The primary difference between a claim and a petition is that is that as a consequence of
a claim, the relevant court decision will be binding on the disputing parties, while a
petition’s decision by a court binds everyone. A tort claim is regulated under Article 1365
of the KUHPer, A tort lawsuit must meet the criteria of four elements in the form of the
unlawful act itself, the existence of an error, the existence of a loss, and the existence of
a causal relationship between the unlawful act by the perpetrator and the loss. While on
the other hand, the default of an agreement is generally understood as the breach of
obligations under an agreement by a party or parties to said agreement. Under
Indonesian law, specifically as regulated under Article 1238 of the KUHPer, a debtor
shall be declared to have defaulted, either by an order or other such similar deed, or
pursuant to the contract itself, which stipulates that the debtor shall be in default, upon
failure to deliver within the stipulated time. A default of an agreement may occur if the
following happens:
a. The failure to perform what is promised upon under the agreement by the parties
or the non-performance of the provisions of the agreement;
b. The performance of an obligation under an agreement without adhering the
provisions on how to perform said obligation;
c. The late performance of an obligation under an agreement; or
d. The performance of an action prohibited under an agreement.

Hence, the essential difference between a tort claim and a default claim comes from the
source of the claim. While tort claim is based on one’s alleged failure to comply with the
laws and regulations, a default claim originates from an agreement by the parties.

2. a. In this matter, the legal aspects that must be into account by SingCo Pte Ltd and PTIC
(hereinafter collectively referred to as the “Parties” and individually as a “Party”) is the
legal framework concerning foreign investment in Indonesia. First, pursuant to Article 5
paragraph (3) of Law Number 25 of 2007 on Investment as amended by Government
Regulation in Lieu of Law Number 2 of 2022 on Job Creation (hereinafter referred to as
the “Investment Law”), foreign investors, be it legal or natural persons, shall invest in
Indonesia in the form of a limited liability company by way of:
a. taking part of the shares of said company in its establishment;
b. acquiring the company’s shares after its establishment; and
c. performing other methods in line with the prevailing laws and regulations

Furthermore, in relation with the second essential aspect to be taken account here,
which is those concerning the prevailing company law in Indonesia, Article 7 paragraph
(2) of Law Number 40 of 2007 on Limited Liability Company as amended by Government
Regulation in Lieu of Law Number 2 of 2022 on Job Creation (hereinafter referred to as
“Company Law”) stipulates that the parties involved in the establishment of a limited
liability company in Indonesia must take part of in its shares in its establishment. Hence,
it is essential that each Party takes their respective partes in JVCo’s shares.

The above agreement and other relevant matters as regulated under Article 8 paragraph
(2) the Company Law are incorporated under a notarial deed of establishment, which
must include at a minimum:

a. full name, place and date of birth, occupation, place of residence, and nationality
of the founder individual, or name, place of domicile and complete address as
well as the number and date of the minister decision regarding the ratification of
legal entities from the founder of the Company;
b. full name, place and date of birth, occupation, place of residence, nationality of
members of the Board of Directors and the first appointed Board of
Commissioners;
c. the names of the shareholders who have taken part shares, details of number of
shares, and nominal value issued and paid-up shares.

In this regard, as stipulated under the elucidation of Article 8 paragraph (2) of the
Company Law, the Parties’ nationality must be explicitly incorporated within the deed of
establishment. In the case of SingCo Pte Ltd, as a foreign legal entity, its certificate of
incorporation is needed here. JVCo shall only be established as a limited liability
company given that it has received the Minister of Law and Human Right’s Decision
which must be requested upon by the Parties as regulated under Article 9 of the
Company Law via an online platform.

To establish JVCo, the Parties, as regulated under Article 32 paragraph (2) of the
Company Law, are not restricted to any minimum authorized capital other than that
which is mutually upon thereof. However, one other aspect that must be considered is
 that concerning the business sector in which JVCo operates in. The toy manufacturing
sector chosen by the Parties for JVCo, must be invested in accordance with the
Standard Classification of Indonesian Business Fields regulated under Presidential
Regulation Number 49 of 2021 on the Amendment of Presidential Regulation Number 10
of 2021 on Investment Business Sectors.

b. In accordance with Article 1 paragraph (2) of the Company Law, Company Organs
consist of the General Meeting of the Shareholders (hereinafter referred to as “GMS”),
the Board of Directors (hereinafter referred to as the “BoD”), and the Board of
Commissioners (hereinafter referred to as the “BoC”). The GMS, as regulated under
Article 1 paragraph (4) of the Company Law, is given the authorities in which the BoD
and BoC are not given either by Law or by its articles of association. In this sense,
pursuant to Article 1 paragraph (5) of the Company Law, the BoD has the authority and
responsible for the management of the company for the interest of the company, and
represents the Company in matters in and out of court pursuant to its articles of
association. While on the other hand, in accordance with the provision of Article 1
paragraph (6) of the Company Law, the BoC is tasked for the general or specific
supervision of the company’s activities and to provide advice in its regards.

3. Legal due diligence refers to the activity of performing investigation over several different
factors by the request of a certain client in matters concerning a transaction. For instance, if
Company A wants to acquire Company B, then it would want to check on Company B’s
backgrounds, for instance whether it has complied with the prevailing laws and regulations
concerning its documents, whether it has a history of problems in courts across in Indonesia,
or whether its assets have issues, etc.

4. In my knowledge, the Government Regulation in Lieu of Law Number 2 of 2022 on Job

(hereinafter referred to as “Perppu Ciptaker”) is the Government Regulation in Lieu of Law
which is promulgated to ‘bypass’ Law Number 11 of 2020 on Job Creation which is decided
to be ‘unconstitutional with terms and conditions’ by MK Decision Number 91/PUU-
XVIII/2020. A Perppu is regulated under Article 22 of the 1945 Constitution. Although by the
promulgation of this Perppu Ciptaker Law Number 11 of 2020 is no longer in force, the
derivative regulations thereunder are still in force so long as they are not in conflict with the
provisions of Perppu Ciptaker.