ANTITRUST LAW - ABNR Podcast (Eps. 9)

Summary

This podcast episode provides a comprehensive overview of the processes involved in business competition investigations conducted by the Indonesian Business Competition Supervisory Commission (KPPU). It covers the stages of case initiation, preliminary investigation, and full investigation, detailing the timelines and procedures. Legal representatives play a critical role in assisting clients throughout the process, especially in providing evidence and guidance. The episode also touches on recent legal changes, such as the shift in appeal procedures and limits on judicial reviews, which are crucial for business owners and legal practitioners to understand.

Takeaways

• 😀 KPPU (Komisi Pengawas Persaingan Usaha) can initiate cases independently or based on reports from businesses, individuals, media, or delayed merger notifications.
• 😀 Cases initiated by KPPU can stem from internal studies, media reports, or notifications that were not submitted on time.
• 😀 Lawyers play an important role in assisting clients in preparing and filing reports, reviewing evidence, and analyzing markets.
• 😀 In the initial investigation phase, KPPU checks whether the report is complete, clear, and within their jurisdiction before proceeding.
• 😀 The initial investigation phase lasts 30 days, which can be extended by 30 more days without a limit on the number of extensions.
• 😀 KPPU investigators gather documents, witness testimonies, and expert opinions during the investigation phase to build the case.
• 😀 Lawyers can assist clients by submitting evidence to KPPU but cannot represent clients in providing testimonies.
• 😀 The investigation phase lasts 60 days but can be extended by 30 more days, with no limit on the number of extensions.
• 😀 If sufficient evidence is found, the case proceeds to a hearing (Sidang Majelis), where the alleged violator is called to respond.
• 😀 If the accused acknowledges the violation, a faster 'expedited procedure' is followed (30 days), while denial of the violation leads to a longer procedure (up to 60 days, extendable).
• 😀 Recent legal changes include shifting the appeal process to the Commercial Court (Pengadilan Niaga) and limiting judicial reviews to Kasasi (Supreme Court) rather than Peninjauan Kembali.

Q & A

What are the two main sources of cases that the KPPU handles?

The two main sources of cases are: 1) KPPU's own initiative, where the commission can start cases based on research, media reports, or late merger notifications, and 2) reports or complaints from the public or business actors, which are submitted to KPPU for investigation.

How does KPPU initiate a case on its own?

KPPU can initiate a case based on its own research, findings from studies it conducts, or media reports about potential violations of competition law. It can also act on late notifications of mergers or other competitive practices.

What is the process of an initial investigation by KPPU?

In the initial investigation, KPPU reviews the report or evidence to check if there is sufficient preliminary evidence to proceed. If the case is based on a public or business actor's report, KPPU will assess the report's completeness, clarity, and relevance before moving forward.

How long does the initial investigation last, and can it be extended?

The initial investigation lasts 30 days, but it can be extended for another 30 days. The Perkom (Regulation of the Commission) does not specify how many times extensions can be applied, giving KPPU flexibility to investigate further if necessary.

What role does a lawyer play during the initial investigation and later stages?

A lawyer typically assists in preparing reports, reviewing evidence, and ensuring that the report submitted to KPPU is complete and clear. In the investigation phase, the lawyer's role is somewhat limited as they cannot represent their clients in giving testimony but can assist with submitting documents and evidence.

What happens after the initial investigation if KPPU finds sufficient evidence?

If KPPU finds sufficient evidence during the initial investigation, the case proceeds to a more detailed investigation stage, known as the 'Majelis' stage, where a panel of judges (Majelis) examines the evidence more comprehensively.

How is the process different when the respondent admits to the violation?

If the respondent admits to the violation, the process moves to a 'fast-track' procedure, which lasts 30 days. This is faster because, with the admission of guilt, there is less need for a thorough examination of all the evidence.

What happens if the respondent denies the allegations?

If the respondent denies the allegations, the case enters a longer examination phase. The investigation continues for 60 days, with possible extensions, as the Majelis panel investigates the case more thoroughly, including examining all relevant evidence.

How does the appeals process work in competition law cases in Indonesia after the Omnibus Law?

After the Omnibus Law (Cipta Kerja), the appeals process has changed. Instead of going to the District Court, appeals are now handled by the Commercial Court (Pengadilan Niaga). Additionally, cases are limited to a cassation appeal, with no possibility of judicial review (PK) anymore.

How has the legal framework changed since the original Competition Law (Law No. 5 of 1999) was enacted?

Since the enactment of Law No. 5 of 1999, there have been various changes, including amendments through Perkom regulations and the Omnibus Law. Significant changes include the restructured appeals process (to the Commercial Court) and the limitation of appeals to the cassation level, eliminating the possibility of judicial review (PK).