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Thursday, 25 March 21
'OMNIBUS LAW' REGULATION ON INDONESIA’S ENERGY AND MINING SECTORS TO BOOST COAL PROCESSING BUT ALSO RAISES QUESTIONS - ABNR
 February 2021 saw the issuance of a raft of new government regulations to give effect to the reformist Job Creation Law (colloquially known as the Omnibus Law), which entered into force on 2 November 2020. In this ABNR legal update, we discuss Government Regulation No. 25 of 2021 on the Energy and Mineral Sectors.
The government has issued a new regulation to give effect to the provisions of the Omnibus Law[1] relating to the mineral, coal, geothermal and power sectors. While the regulation makes some important changes, the overall purpose appears to be primarily to codify existing secondary legislation governing the relevant sectors.
The new instrument, Government Regulation No. 25 of 2021 on the Energy and Mineral Sectors (the “Regulation”),[2] was issued on 2 February 2021.
Due to the wide-ranging scope of the Regulation, we confine our analysis to its key provisions in this ABNR Legal Update.
A. Mining sector
Under the Omnibus Law, the holder of a Production-Operations Mining Business License (“IUP”) or Special Production-Operations Mining Business License (“IUPK”) for coal may be entitled to a complete exemption from the payment of royalties if it processes its coal production domestically, compared to an obligation to pay royalties of 3% to 7% (depending of calorific value and mining method) if it does not process its production domestically. This incentive should help boost investment in the coal processing industry (e.g., coal slurry, coal gasification and coal liquefaction), which is currently less developed than the mineral processing and refining industry.
The Regulation provides that the financial incentive will be given after approval by the Minister of Finance. Although not expressly stated, we believe the Minister of Finance will require a recommendation from the Minister of Energy and Mineral Resources (“MEMR”) before giving such approval as the Regulation stipulates the former should take into account considerations relating to energy sustainability and the fulfillment of industrial needs for raw materials, both of which come within the purview of the MEMR.
The financial incentives are not available for all coal that is produced by a mining license holder but only for certain types of coal that are processed domestically.
B. Geothermal Sector
The Regulation makes provision for the imposition of administrative sanctions and penalties on geothermal businesses that: (i) indirectly use geothermal energy without the required license or in a way that contravenes their license; (ii) fail to commence activities in their allocated work area within the stipulated timeframe; or (iii) fail to comply with the obligations set out in their license or the laws and regulations in general. By contrast, the Geothermal Law only imposes criminal sanctions for non-compliance with licenses.
It is prohibited for a holder of a geothermal license to assign it to a third party. Any violation of this prohibition is subject to administrative sanctions. Further, it is prohibited, once again subject to sanctions, for the holder of a geothermal license to sell its shares on the Indonesia Stock Exchange (“IDX”) without MEMR approval prior to the exploration stage.
While the text of the Regulation in this regard appears to only apply to a geothermal company that is itself listed on the IDX, and not to the holding company of a geothermal company listed on the IDX, it is as yet unclear whether this particular provision will be construed narrowly so as to exclude a holding company or widely so as to include it. The Regulation also fails to explain how the prohibition will be implemented and, more specifically, whether the IDX will be required to monitor transfers of shares of IPB holders so as to ensure that the prohibition is not violated.
C. Power Sector
The Omnibus Law has relaxed the rules in a number of key areas of the power sector, including the rules on operations areas, electricity-sector support services and joint utilization of electricity networks. However, it also imposes new obligations on electricity consumers. These changes have now been further fleshed out in the Regulation.
Under the Regulation, the term “public interest electricity business” covers (i) electricity generation; (ii) electricity transmission; (iii) electricity distribution; and (iv) sale of electricity. These various activities can be integrated and conducted by a single undertaking. For that purpose, the holder of Public Interest Electricity Business License (Izin Usaha Penyedian Tenaga Listrik Untuk Kepentingan Umum) must apply for the allocation of an Operations Area, particularly for the distribution and sale of electricity. The Regulation further stipulates that MEMR must consider the following aspects in determining the allocation of Operations Areas:
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The existing holder of an Operations Area is no longer capable of supplying electricity;
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The existing holder of Operations Area is no longer capable of maintaining the quality and reliability of its electricity supply;
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The existing holder of an Operations Area surrenders a part or all of its Operations Area to MEMR;
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The Operations Area applied for is a remote area that has not been assigned to another Operations Area holder; and/or
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The Operations Area applied for is a designated area for the development of integrated energy sources in accordance with its power needs.
While in practice we expect that PT PLN (Persero), the state power company and largest player in the Indonesian power sector, will continue to dominate the development of new or existing Operations Areas, the considerations listed above could still open opportunities for private investors to proactively seek out prospective Operations Areas for development.
The Regulation also establishes the following licensing and reporting requirements for own-interest power producers (i.e., operators of captive power plants):
> 500 kW – requires an Own-Interest Electricity Business License (Izin Usaha Penyediaan Tenaga Listrik untuk Kepentingan Sendiri) from MEMR or relevant provincial governor, plus a certificate of operational worthiness.
< 500kW - must submit a prior written report to the Minister or relevant governor and satisfy technical specifications, as evidenced by a certificate of operational worthiness and other technical documents to be registered with MEMR.
It interesting to note that the Regulation also imposes various new obligations on electricity consumers, Including obligations to ensure the security of their electricity installations, to use electricity in accordance with its purposes, to pay their electricity bills and to comply with technical requirements in the power sector. A consumer may be sued for any losses suffered by the holder of a Public Interest Electricity Business License if they fail to perform their obligations. This provision may also be regarded as setting out the minimum provisions that should be incorporated in an electricity purchase agreement between a power provider and its customers, including industrial customers.
As regards the electricity support services sector (“Support Services”), a foreign investor that wishes to carry on business in this field has the option of establishing a representative office / Kantor Perwakilan Asing (“KPA”). The Support Services that can be performed by a KPA are restricted to a list of clearly defined activities, including consultation on electricity installations, construction and installation of electricity infrastructure, and the maintenance of power installations. The projects developed by a KPA must also come within the “high cost” category, with a minimum contract value of Rp 100 billion for construction and installation activities.
It should be noted in this regard that the Regulation is somewhat unclear. While it goes into noticeable detail on the rules governing KPA, it is silent as to the role to be played by foreign invested companies (PT PMA) in the electricity support services sector.
As mandated by the Omnibus Law, the Regulation further provides for the joint utilization of power transmission networks by telecommunication, multimedia and IT companies. Such joint utilization must be based on the permission of the network owner, which may only be given if the joint utilization does not have the potential to disrupt electricity supplies. The network owner must submit a report to MEMR on its consent to joint utilization, enclosing certain supporting documents, including the joint utilization agreement and details of the telecommunications equipment to be installed in the power transmission network.
ABNR Commentary
Despite the lack of clarity and question marks regarding some provisions, as mentioned above, the Regulation fills in some obvious gaps in the Omnibus Law relating to the mineral, coal and power sectors. However, there remain a number of outstanding issues that require attention. In this regard, the Regulation incorporates an enabling provision that allows MEMR to take whatever action is required to resolve any issues that are not, or are inadequately, addressed in the Regulation. This is a new type of catch-all “fix-it-up” provision in Indonesian law that is also used in a number of other sectoral regulations issued under the Omnibus Law. It will be interesting to see the extent to which the MEMR, as well as other ministries, avail of this power to make legislative and regulatory changes going ahead.
By partner Mr. Freddy Karyadi and senior associate Mr. Mahatma Hadhi
Source: ABNR
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Tuesday, 23 March 21
LOWER WHOLESALE PRICES PUT PRESSURE ON AUSTRALIAN ENERGY RETAILERS - FITCH RATINGS
Fitch Ratings expects the low wholesale energy prices in the Australian National Energy Market to persist through to 2022, which will affect electr ...
Tuesday, 23 March 21
SCRUBBER-FITTED SHIPS NEARLY DOUBLE AS FUEL SPREAD SETTLES AT $118 PER MT - PETER SAND
As the lion’s share of the world fleet replaced high-sulphur fuel oil (HSFO) with low-sulphur fuel oil (LFSO) as a mean of propulsion to be c ...
Tuesday, 23 March 21
CHINA'S COAL OUTPUT EDGES UP IN FIRST TWO MONTHS - XINHUA
China’s raw coal output rose 25 percent year on year to 620 million tonnes in the first two months of 2021, official data showed.
...
Wednesday, 17 March 21
MARKET INSIGHT - INTERMODAL
Shipping market players are familiar with the inverse correlation between the freight market and demolition activity i.e. when the market picks up ...
Friday, 12 March 21
INDIA SHOULD FOCUS ON REDUCING COAL POWER GENERATION INSTEAD OF CAPACITY - IEEFA
Nearly half of existing coal power in India is more expensive than new renewable power
To get to its ambitious climate targets, Indi ...
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- Antam Resourcindo - Indonesia
- Ind-Barath Power Infra Limited - India
- Directorate Of Revenue Intelligence - India
- Wood Mackenzie - Singapore
- Posco Energy - South Korea
- Bukit Asam (Persero) Tbk - Indonesia
- Indian Energy Exchange, India
- Semirara Mining and Power Corporation, Philippines
- Energy Development Corp, Philippines
- Holcim Trading Pte Ltd - Singapore
- AsiaOL BioFuels Corp., Philippines
- Thai Mozambique Logistica
- Price Waterhouse Coopers - Russia
- South Luzon Thermal Energy Corporation
- TNB Fuel Sdn Bhd - Malaysia
- Energy Link Ltd, New Zealand
- Marubeni Corporation - India
- SN Aboitiz Power Inc, Philippines
- Jindal Steel & Power Ltd - India
- Commonwealth Bank - Australia
- TeaM Sual Corporation - Philippines
- Iligan Light & Power Inc, Philippines
- IHS Mccloskey Coal Group - USA
- Barasentosa Lestari - Indonesia
- Salva Resources Pvt Ltd - India
- MS Steel International - UAE
- Bulk Trading Sa - Switzerland
- Orica Mining Services - Indonesia
- Kaltim Prima Coal - Indonesia
- Intertek Mineral Services - Indonesia
- Therma Luzon, Inc, Philippines
- Chettinad Cement Corporation Ltd - India
- Aboitiz Power Corporation - Philippines
- Videocon Industries ltd - India
- International Coal Ventures Pvt Ltd - India
- Georgia Ports Authority, United States
- Karaikal Port Pvt Ltd - India
- SMG Consultants - Indonesia
- Bhatia International Limited - India
- Parry Sugars Refinery, India
- Rashtriya Ispat Nigam Limited - India
- Bahari Cakrawala Sebuku - Indonesia
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Cigading International Bulk Terminal - Indonesia
- Vijayanagar Sugar Pvt Ltd - India
- The Treasury - Australian Government
- Trasteel International SA, Italy
- Dalmia Cement Bharat India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Indonesian Coal Mining Association
- Electricity Generating Authority of Thailand
- Essar Steel Hazira Ltd - India
- Bukit Baiduri Energy - Indonesia
- Independent Power Producers Association of India
- Kartika Selabumi Mining - Indonesia
- Kohat Cement Company Ltd. - Pakistan
- Wilmar Investment Holdings
- LBH Netherlands Bv - Netherlands
- Port Waratah Coal Services - Australia
- Larsen & Toubro Limited - India
- Bangladesh Power Developement Board
- Renaissance Capital - South Africa
- Meralco Power Generation, Philippines
- Formosa Plastics Group - Taiwan
- Kumho Petrochemical, South Korea
- GMR Energy Limited - India
- Sree Jayajothi Cements Limited - India
- Kapuas Tunggal Persada - Indonesia
- Tamil Nadu electricity Board
- Medco Energi Mining Internasional
- Samtan Co., Ltd - South Korea
- Straits Asia Resources Limited - Singapore
- New Zealand Coal & Carbon
- Eastern Coal Council - USA
- Makarim & Taira - Indonesia
- Bharathi Cement Corporation - India
- Xindia Steels Limited - India
- Maharashtra Electricity Regulatory Commission - India
- Coal and Oil Company - UAE
- Offshore Bulk Terminal Pte Ltd, Singapore
- Meenaskhi Energy Private Limited - India
- Simpson Spence & Young - Indonesia
- GN Power Mariveles Coal Plant, Philippines
- Miang Besar Coal Terminal - Indonesia
- Cement Manufacturers Association - India
- Edison Trading Spa - Italy
- Interocean Group of Companies - India
- VISA Power Limited - India
- Global Business Power Corporation, Philippines
- Directorate General of MIneral and Coal - Indonesia
- Kobexindo Tractors - Indoneisa
- CNBM International Corporation - China
- Malabar Cements Ltd - India
- Bank of Tokyo Mitsubishi UFJ Ltd
- Planning Commission, India
- Gujarat Electricity Regulatory Commission - India
- The State Trading Corporation of India Ltd
- Merrill Lynch Commodities Europe
- Indika Energy - Indonesia
- Vizag Seaport Private Limited - India
- Attock Cement Pakistan Limited
- Kepco SPC Power Corporation, Philippines
- IEA Clean Coal Centre - UK
- Gujarat Sidhee Cement - India
- Tata Chemicals Ltd - India
- OPG Power Generation Pvt Ltd - India
- Kalimantan Lumbung Energi - Indonesia
- Toyota Tsusho Corporation, Japan
- Africa Commodities Group - South Africa
- Indogreen Group - Indonesia
- Rio Tinto Coal - Australia
- Latin American Coal - Colombia
- Alfred C Toepfer International GmbH - Germany
- Asmin Koalindo Tuhup - Indonesia
- Leighton Contractors Pty Ltd - Australia
- PowerSource Philippines DevCo
- Mercator Lines Limited - India
- Ministry of Finance - Indonesia
- Savvy Resources Ltd - HongKong
- Central Java Power - Indonesia
- PetroVietnam Power Coal Import and Supply Company
- Orica Australia Pty. Ltd.
- Goldman Sachs - Singapore
- Sical Logistics Limited - India
- PTC India Limited - India
- CIMB Investment Bank - Malaysia
- Heidelberg Cement - Germany
- European Bulk Services B.V. - Netherlands
- Ambuja Cements Ltd - India
- Mercuria Energy - Indonesia
- Economic Council, Georgia
- Global Green Power PLC Corporation, Philippines
- Ceylon Electricity Board - Sri Lanka
- Deloitte Consulting - India
- White Energy Company Limited
- Pipit Mutiara Jaya. PT, Indonesia
- Agrawal Coal Company - India
- Aditya Birla Group - India
- Romanian Commodities Exchange
- Sinarmas Energy and Mining - Indonesia
- Oldendorff Carriers - Singapore
- Standard Chartered Bank - UAE
- ICICI Bank Limited - India
- Minerals Council of Australia
- Neyveli Lignite Corporation Ltd, - India
- Star Paper Mills Limited - India
- Semirara Mining Corp, Philippines
- Pendopo Energi Batubara - Indonesia
- Baramulti Group, Indonesia
- Sindya Power Generating Company Private Ltd
- Uttam Galva Steels Limited - India
- Riau Bara Harum - Indonesia
- GAC Shipping (India) Pvt Ltd
- India Bulls Power Limited - India
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Jorong Barutama Greston.PT - Indonesia
- Eastern Energy - Thailand
- GVK Power & Infra Limited - India
- Metalloyd Limited - United Kingdom
- Global Coal Blending Company Limited - Australia
- Australian Commodity Traders Exchange
- Parliament of New Zealand
- Manunggal Multi Energi - Indonesia
- Lanco Infratech Ltd - India
- Borneo Indobara - Indonesia
- Australian Coal Association
- Ministry of Mines - Canada
- London Commodity Brokers - England
- Globalindo Alam Lestari - Indonesia
- Billiton Holdings Pty Ltd - Australia
- Bayan Resources Tbk. - Indonesia
- PNOC Exploration Corporation - Philippines
- Mjunction Services Limited - India
- Indian Oil Corporation Limited
- Sakthi Sugars Limited - India
- Maheswari Brothers Coal Limited - India
- Bukit Makmur.PT - Indonesia
- Indo Tambangraya Megah - Indonesia
- Siam City Cement - Thailand
- Gujarat Mineral Development Corp Ltd - India
- SMC Global Power, Philippines
- Vedanta Resources Plc - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Sojitz Corporation - Japan
- Ministry of Transport, Egypt
- Thiess Contractors Indonesia
- The University of Queensland
- Bhushan Steel Limited - India
- Petrochimia International Co. Ltd.- Taiwan
- ASAPP Information Group - India
- San Jose City I Power Corp, Philippines
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Bhoruka Overseas - Indonesia
- Power Finance Corporation Ltd., India
- Grasim Industreis Ltd - India
- Timah Investasi Mineral - Indoneisa
- Binh Thuan Hamico - Vietnam
- Jaiprakash Power Ventures ltd
- Electricity Authority, New Zealand
- Krishnapatnam Port Company Ltd. - India
- Sarangani Energy Corporation, Philippines
- Kideco Jaya Agung - Indonesia
- Banpu Public Company Limited - Thailand
- Mintek Dendrill Indonesia
- Coalindo Energy - Indonesia
- Central Electricity Authority - India
- Karbindo Abesyapradhi - Indoneisa
- Singapore Mercantile Exchange
- Anglo American - United Kingdom
- Chamber of Mines of South Africa
- Carbofer General Trading SA - India
- Madhucon Powers Ltd - India
- Altura Mining Limited, Indonesia
- Petron Corporation, Philippines
- Coastal Gujarat Power Limited - India
- McConnell Dowell - Australia
- Siam City Cement PLC, Thailand
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