Antitrust Litigation 2022 Comparisons

The Indonesia Competition Commission (Komisi Pengawas Persaingan Usaha/KPPU) is very active in monitoring and enforcing competition law violations. In 2021, the KPPU examined 26 competition cases, higher in comparison to 2020, with only 15 cases. Of 26 competition cases in 2021, the highest number of cases are related to late merger filings (11 cases), followed by bid rigging (10 cases) and abuse of dominance (5 cases). Meanwhile, by mid-2022, the KPPU has already examined five competition cases, four of them related to late merger filings, and the remaining related to the abuse of dominance.

As the only agency overseeing competition law enforcement, the KPPU can investigate competition cases in all sectors based on reports or its own initiatives. Given the increasing exposure of the digital economy, KPPU also has shown keen interest in overseeing competition in the digital economy. One of the most notable cases in 2020 related to digital economy is the discriminatory practice violation which involves PT Solusi Transportasi Indonesia (STI) and PT Teknologi Pengangkutan Indonesia (TPI) (the “STI/TPI Case”). STI is one of the Indonesian subsidiaries of Grab Holdings Inc (“Grab”), which engages in an online ride-hailing platform. Meanwhile, TPI is a car rental company affiliated with Grab and STI.

In the STI/TPI case, the KPPU concluded that STI engaged in a discriminatory practice by prioritising TPI-related drivers against drivers from other car rental companies. As consequence, STI and TPI were proven guilty of violating the prohibition of vertical integration and discriminatory practices, which are respectively prohibited under Article 14 and Article 19(d) of Law No 5 of 1999 on the Prohibition of Monopolistic Practices and Unfair Business Competition (ICL). Subsequently, the KPPU imposed unprecedented administrative fines of:

• a total IDR30 billion (approximately USD2.08 million) on STI (consisting of IDR7.5 billion (approximately USD506,000) for the violation of Article 14 and IDR22.5 billion (approximately USD1.52 million) for the violation of Article 19(d)); and
• a total IDR19 billion (approximately USD1.22 million) on TPI (consisting of ID4 billion (approximately USD207,000) for the violation of Article 14 and IDR15 billion (approximately USD1.013 million) for the violation of Article 19(d)).

The total administrative fine to STI was unprecedented as it was the first time that the KPPU imposed a fine exceeding IDR25 billion (approximately USD1.77 million) threshold on one company in a single antitrust case. At the time the decision was made, the Omnibus Law was still not enacted, thus the maximum fine that might be imposed by ICL was only IDR25 billion. 

On top of the sum of the administrative fines on a single company, the STI/TPI Case is interesting because KPPU rarely investigates the vertical integration issue. Therefore, this decision may indicate that the KPPU has started looking at the “self-preferencing” issues under the vertical integration prohibition. Despite the above, this decision was annulled by the South Jakarta District Court on appeal (because the legal remedy was raised under the Omnibus Law, which changed the appeal process to the commercial court) and the annulment was upheld by the Supreme Court at the cassation level.

In 2021, the Indonesian government issued the implementing regulation of Law No 11 of 2020 on the Job Creation (the “Omnibus Law”) on competition, namely Government Regulation No 44 of 2021 on the Implementation of Prohibition of Monopolistic Practices and Unfair Business Competition (GR 44/2021). The Omnibus Law itself provides several amendments to the ICL, as discussed below.

Removal of the Cap on Administrative Fines and Criminal Sanctions arising from the Substantive Violations

One of the most notable amendments under the Omnibus Law relates to the removal of the cap on administrative fines and removal of criminal sanctions for violation of substantive law. Initially, KPPU could impose an administrative fine ranging from IDR1 billion to IDR25 billion. After the enactment of the Omnibus Law, the cap for administrative fines had been removed. Nevertheless, GR 44/2021 stipulates a more detailed provision so that the new administrative sanction cap is tied to either 50% of the relevant company’s net profit or 10% of its turnover, both calculated from the relevant market during the violation period.

Further, GR 44/2021 also sets the criteria that need to be considered by the KPPU in order to impose the administrative sanction, as follows:

• the sanction must be proportionate to the degree or impact of the violation;
• the sanction should ensure business continuity but be effective enough to create a deterrence effect; and
• the sanction must be based on detailed and concrete reasoning from valid and measurable data.

On the duration of the violation, KPPU will round up the duration. This means that a violation of fewer than six months will be rounded up to six months, while that of between six and twelve months will be rounded up to twelve months.

On a separate note, initially the ICL stipulated that the criminal sanctions could be imposed on the business actors that violated the substantive law of the ICL. With the enactment of the Omnibus Law, criminal sanctions no longer apply for substantive violation of the ICL and they can only apply for obstruction of KPPU examination or investigation. Please also note that the criminal sanction can be enforced by the Indonesian National Police, instead of the KPPU.

Extenuating and Aggravating Factors for the Administrative Fines

GR 44/2021 also specifies several extenuating and aggravating factors that should be considered by the KPPU in determining the amount of administrative fine, such as the business actor’s efforts to comply with the competition law (eg, by establishing a code of ethics, training, or other similar activities), voluntarily terminating the violation, repetitive violation during the past eight years, role in violation (whether or not the business actor is the initiator of the violation), and the magnitude of the violation’s impact on competition.

Other Applicable Administrative Sanctions

In addition to administrative fines, the Omnibus Law also stipulates other applicable administrative sanctions as follows:

• annulment of relevant parts of the agreement that violate the ICL;
• order to terminate the vertical integration;
• order to cease any anti-competitive activities;
• order to cease the abuse of dominant position;
• annulment of the merger, consolidation or acquisition transaction; and
• determination of damages.

Penalty for Default Fines Payment

The reported party must pay the fines within 30 business days from the date of the final and binding decision. Otherwise, the KPPU will impose a penalty for default payment.

GR 44/2021 stipulates that the penalty is considered non-tax state revenue. Law No 9 of 2018 on Non-Tax State Revenue, in conjunction with Government Regulation No 58 of 2020 on Non-Tax State Revenue Management stipulates a one-day delayed payment will be considered one full month of delay. Further, the delayed payment is subject to 2% penalty of the total fine per month with a maximum period of 24 months. Therefore, business actors can be subject to penalties of up to 48% of the total fines in the case of payment default.

Other Provisions Under GR 44/2021

GR 44/2021 also stipulates the following important matters.

The KPPU power to declare the agreement as null and void

GR 44/2021 emphasises the power of the KPPU to declare an agreement which has been proven violating the ICL as null and void. Nevertheless, the KPPU must first review the infringing articles in the agreement before exercising this power. If the KPPU only finds certain infringing articles in the agreement, it must declare only the infringing articles to be null and void.

The requirement for the business actor to deposit a bank guarantee before submitting an appeal against the KPPU decision

If the business actor intends to appeal against the KPPU decision to the commercial court, they must first deposit a bank guarantee of a maximum 20% of the fine imposed. The appeal itself must be filed with the commercial court within 14 business days after the receipt date of the KPPU decision.

The regulation also extends the period of examination by the commercial court of the appeal merits to 3–12 months, from previously only 30 days.

The competition compliance of the company as the extenuating factor

GR 44/2021 stipulates that one of the factors that could extenuate the amount of fine sanction imposed by the KPPU is the competition compliance programme. However, the regulation does not specify the exact amount of fine reduction by having the competition compliance programme. It is anticipated that the reduction will be determined by the KPPU Panel of Commissioners on a case-by-case basis.

A more technical and detailed provision on the competition compliance programme is stipulated under KPPU Regulation No 1 of 2022 on the Competition Compliance Programme (KPPU Regulation 1/2022). In this regulation, the competition compliance should comprise at least the following elements:

• code of ethics;
• competition and antitrust handbook; and
• general or specific training.

The business actor must also considers its commercial activities, market power and interaction with third parties (suppliers, competitors and consumers) in preparing the programme.

Even though the registration of competition compliance is voluntary, the business actor would still be required to submit a report on the implementation of the programme. The Regulation itself is silent on the timing for the submission of such a report, and there is a possibility that the KPPU would determine the timing upon registration. After the compliance programme is registered by the business actor, the KPPU will assess the programme and issue a determination regarding approval. The KPPU approval of the compliance programme can be valid for five years (the validity itself can be extended).

In general, the ICL adopts a standalone claim as the basis for a claim for damages for breach of competition law through the KPPU. Based on Article 38(1) and (2) of the ICL, it is stipulated that any party who suffers loss from anti-competitive conduct may file a written report to the KPPU, explaining the identity of the reported party and its alleged violations as well as the amount of damages resulting from such violation.

Further, Article 47 paragraph (2)(f) stipulates that the KPPU can issue determination for payment of damages by a business actor proven guilty of violating the ICL. In general, a claim for damages can apply to any violation of the ICL.

The ICL is silent on the amount of damages claimed for the competition law infringement. Nevertheless, KPPU Regulation 4 of 2009 on the Guidelines for the Administrative Sanction (KPPU Regulation 4/2009) stipulates that the KPPU has sole discretion in determining the amount of actual damages or compensation that has to be paid by the reported party. Further explanation on the KPPU assessment of actual damages is elaborated in 7.1 Assessment of Damages.

Follow-on damage claims are possible but will not be examined by the KPPU. Rather, follow-on damage claims can be filed in district courts based on the KPPU’s final and binding decision as a tort claim.

The KPPU is an independent institution that has the authority to enforce the ICL in Indonesia. Under the ICL, the KPPU has power to investigate and impose administrative sanctions for any violation of the ICL. The commercial court and the Supreme Court are authorised only to examine the KPPU Decision in the appeal and cassation level respectively.

If an appeal is submitted, the KPPU decision is not final and binding. A business actor proven guilty by the KPPU for violating the ICL can file an appeal against the KPPU decision to the commercial court. The appeal must be submitted within 14 working days after the business actor receives notification of the KPPU decision. If the business actor does not submit an appeal against the KPPU decision to the commercial court within the specified deadline, the KPPU decision will be automatically final and binding.

Further, the KPPU or business actor objecting to the commercial court decision can file a cassation to the Supreme Court within 14 working days after receiving notification of the decision of the commercial court. The cassation to the Supreme Court is the last legal remedy against the district court’s decision.

On damages actions through a tort claim, given that the claim would be based on a KPPU final and binding decision, it is unlikely that the KPPU would intervene in damages actions.

In general, the burden of proof is on the party who claims the infringement of the ICL. Thus, if the competition case is initiated by the KPPU or if it is derived from a complaint from a public/reporting party not seeking damages, the burden of proof rests on the KPPU. However, if the competition case is derived from a public/reporting party also seeking compensatory damages, the burden of proof for damages will rest on the said reporting party.

Further, at the time of writing, the ICL does not specifically address the “pass-on” defence mechanism. As explained above, any party who submits a claim for damages has a burden of proof to establish that they suffered the loss resulting from the anti-competitive conduct. In that sense, the “pass-on” defence can be used to rebut any damages claim if the loss is actually passed on to other parties.

In assessing the competition case, the KPPU will consider the following types of evidence to prove whether the reported party is violating the ICL:

• witness testimonies;
• expert testimonies;
• letters and/or documents;
• circumstantial evidence; and
• statements by business actors.

KPPU Regulation 1/2019 stipulates that a party reporting as an individual may submit the report to the KPPU on the alleged violation of the ICL, including a request for damages in compensation. However, KPPU Regulation 1/2019 does not provide any specific provision on whether claims can be brought by direct and indirect purchasers.

Referring to 2.4 Burden and Standard of Proof, any party who submits a claim must prove that they suffered loss and that it resulted from the anti-competitive conduct. Consequently, if the direct purchaser (eg, the distributor) passes on the damage resulting from the anti-competitive conduct to retailers (ie, indirect purchasers), the claim can only be brought by indirect purchasers because the direct purchaser does not suffer any loss.   

Given that the KPPU is the sole institution with authority to enforce the ICL, any claim and/or report on the alleged violation of the ICL must be submitted to the KPPU. Based on KPPU Regulation No 1 of 2019 on the Procedures for Handling Cases of Monopolistic Practices and Unfair Business Competition (KPPU Regulation 1/2019), any report from the public and/or business actor on the alleged violation of the ICL to the KPPU will proceed through the following phases.

Clarification Phase

The KPPU will clarify any report from the public on the alleged violation of the ICL within 14 business days of receipt of said report.

Investigation Phase

After the KPPU declares that the report is complete, the KPPU will proceed to the investigation phase, which will last for 60 business days (it can be extended based on a Coordination Meeting decision). In this phase, the KPPU will collect sufficient evidence relating to the alleged violation.

Initial Examination Phase

In this phase, the KPPU Commissioner will hold a hearing and order the reported party to appear before the Commissioner. The initial examination phase will last for 30 business days as the hearing is attended by the reported party.

It is worth noting that KPPU Regulation 1/2019 gives the KPPU authority to offer the reported party opportunity to change behaviour. If the reported party accepts the change of behaviour proposal, the KPPU will issue a determination on the change of behaviour, the reported party may avoid any sanction and the KPPU examination will stop. 

Further Examination Phase

In this phase, the KPPU will examine the reported party and the witness, expert, as well as other evidence of the case. This phase will last for 60 business days, and it can be extended by up to 30 business days.

The Issuance of KPPU Decision

KPPU will issue the decision within 30 business days after the further examination phase ends.

The reported party may submit an appeal against the KPPU decision to the commercial court. Further, the reported party and the KPPU can file a cassation against the commercial court decision to the Supreme Court. Please refer to 2.3 Decisions of National Competition Authorities for explanation regarding appeal and cassation of the KPPU decision.

On a separate note, the ICL also does not stipulate any stay proceeding mechanism. Considering that all competition cases must firstly be examined by the KPPU, the commercial court and Supreme Court may only examine the competition case respectively in the appeal and cassation process after the KPPU decision has been issued.

Currently, Indonesian law only recognises class action lawsuits for civil matters on an opt-out basis. A class action usually occurs due to an act of tort/violation of the law (perbuatan melawan hukum) or breach of contract as the object of a lawsuit.

There is no express prohibition or provision to allow class action lawsuits on competition cases. In the past, there have been several attempts at class action lawsuits related to competition law violations, most notably one against a major telecommunications group of companies. However, none of the attempts was successful, as the judge deemed that they did not fulfil the class action certification. Therefore, provided that class action lawsuits can fulfil the formal requirements, in theory, class action lawsuits for competition law violations are possible.

Referring to 2.4 Burden and Standard of Proof and 2.5 Direct and Indirect Purchasers, claims for damages (including claims in a class action lawsuit) can only be brought by the party who suffers the loss from the anti-competitive conduct. Consequently, if the direct purchaser passes on their loss to indirect purchasers, the class action lawsuit cannot be brought on behalf of direct purchasers.

Indonesian law recognises class action lawsuits as civil procedures. The class action lawsuit must be submitted by the class representative as the applicant. Following the submission, a certification process will occur where the presiding judge will assess whether the lawsuit fulfils the requirements for a class action lawsuit and decide whether to accept or deny the lawsuit. At the certification stage, the applicant must demonstrate that the lawsuit has fulfilled the requirements for a class action under Supreme Court Regulation No 1 of 2002 on Class Action Lawsuits (SCR 1/2002).

In general, the requirements for a class action are as follows:

• numerosity: numerous class members. While SCR 1/2002 does not dictate the minimum/maximum number of people to qualify for class action, note that several written works suggest that a lawsuit with less than 10 plaintiffs is better brought as a regular lawsuit, as the examination process is relatively simpler than class action;
• commonality: common event, legal basis and facts among class members;
• typicality: similarity in claims among class members; and
• representation: the party appointed as class representative must be honest in character and earnest in protecting the interest of the class member they represent.

In addition to the above requirements, the class action lawsuit submitted by the applicant must also include the following information:

• clear and complete identity of the class representative;
• specific and detailed definition of the class;
• description of the member of the class necessary for mandatory notification;
• clear and detailed explanation of the basis for the lawsuit (posita) by the class (either by the class representative or its members); and
• clear and detailed explanation of the claim for damages (petitum), containing suggested mechanisms for distribution of the compensation among class members, including the formation of a team or panel to aid such distribution.

The presiding judge shall decide on how the settlement is distributed as well as the class/sub-class members due to receive the settlement. The presiding judge will also decide the necessary steps to be taken by the class representatives to ensure the settlement is fulfilled accordingly.

Further, as part of the civil law procedure, the disputing parties may choose to settle their dispute through mediation, be it out of court, or as part of court procedures. However, under Supreme Court Regulation No 1 of 2016 (SCR 1/2016), all cases filed to the district court, unless excluded under SCR 1/2016, must first undergo mediation. Only if the parties fail to settle through mediation can they proceed to court. Such excluded matters include:

• disputes settled through commercial court;
• disputes settled through industrial relations court;
• appeal over KPPU decision;
• disputes whereby the parties failed to settle through out-of-court mediation; and
• other disputes whereby the term for examination is determined under the laws and regulations.

In general, mediation (whether out-of-court or in-court) will undergo the following stages.

• Pre-mediation: the parties will choose a mediator to mediate their settlement. The mediator will then summon the parties for mediation.
• Mediation: the parties will meet to settle their dispute by negotiation. The mediator serves only to facilitate a peaceful settlement among the disputing parties and must not resort to deciding or coercing a settlement.
• Post-mediation: the disputing parties will execute their agreement through a settlement agreement.

If the parties succeed in settling their dispute through mediation, the presiding judge will then reinforce their settlement agreement as a deed of settlement. If the mediation was performed out-of-court, the parties must file a lawsuit along with their settlement agreement in order to acquire the deed of settlement.

Strike-out/summary judgment is currently not available under the ICL.

The applicable law and basic rules in Indonesian jurisdiction for antitrust litigation fall within several laws and regulations, as follows:

• the ICL as amended by the Omnibus Law;
• GR 44/2021;
• KPPU Regulation 1/2019;
• KPPU Regulation No 1 of 2020 on the Electronic Competition Case Handling Procedure (KPPU Regulation 1/2020);
• KPPU Regulation No 2 of 2021 concerning the Guidelines for Imposing Administrative Fines (KPPU Regulation 2/2021); and
• Supreme Court Regulation No 3 of 2021 concerning the Submission and Examination of Appeals Against KPPU Decisions in the Commercial Court (SC Regulation 3/2021).

In relation to the case handling for foreign parties, the ICL does not adhere to the principle of extraterritoriality. However, there have been cases where foreign parties are considered subject to the ICL under the single economic entity doctrine.

As an aside, concerning the government’s handling of the ongoing COVID-19 pandemic, the KPPU aimed to optimise the use of electronic processes in relation to any litigation activities. Accordingly, the KPPU issued KPPU Regulation 1/2020, which sets out a regulatory framework for the use of electronic media, domiciles and/or documents by the KPPU for the following purposes:

• assessments of notifications;
• supervision of partnerships;
• case handling, including:
• business competition cases;
• cases relating to late/overdue notifications for mergers, consolidations and acquisitions of businesses; and
• partnership cases; and
• KPPU panel hearings.

The term “electronic media” refers to any facilities that are used by the KPPU in order to facilitate the electronic interaction of the relevant parties and is not limited to audiovisual teleconferencing and email. The term “electronic domiciles” refers to the email addresses of the relevant parties.

The following are the electronic competition case handling procedures.

• In order to carry out reports, clarifications, research, investigations, filings, examinations, and supervision of changes in behaviour, summons to a party shall be made using electronic documents sent to the electronic domicile of such party.
• Examination of a party may be carried out by means of electronic media.
• Requests, submissions and/or receipts of evidence by a party in the form of electronic documents may be submitted through electronic domicile.
• In the event that it is necessary for witnesses or experts to take an oath, then they must use visual teleconferencing.
• The taking of oaths of witnesses or experts is guided by the investigator in the investigation stage or the commissioners panel in the examination/hearing stage.
• A witness or expert who takes an oath must be equipped with a means of pronouncing the oath.
• The testimony that has been given by an examined party is recorded in the minutes of investigation (berita acara penyelidikan) in the investigation stage or minutes of hearing in the examination/hearing (berita acara sidang).
• The approval form of minutes of investigation or minutes of hearing is sent by an examined party to the KPPU through the electronic domicile.
• The commissioners panel may conduct the entire series of trials by electronic media.

There is no clear statute of limitation for violation of the ICL. Based on precedent, in 2021 the KPPU investigated a failure to notify case for a transaction that occurred in 2011.

However, under Indonesian civil law, the general statute of limitation for a civil claim is 30 years, but there is no specification on when the period begins. In practice, it begins when the relevant rights first appear.

The Indonesian civil code provides certain conditions where the statute of limitation can be affected, among other things:

• if it is excluded by the law;
• if it is sought to be imposed against minors or anyone under guardianship, unless otherwise stipulated by the law;
• if within a period of more than one year, the owner has been denied enjoyment of a matter; and
• if it is excluded based on a reminder, summons, or any legal claim, submitted in the required format by an authorised official on behalf of the rightful party.

There is no procedure for the disclosure or discovery of documents within Indonesian antitrust litigation. The Indonesian legal system, however, recognises a term that is similar to discovery, namely inzage. However, as opposed to discovery or disclosure, which allows the parties to obtain full knowledge about the witnesses and evidence that will be presented at trial, the ICL allows inzage to be conducted only prior to making the statement of conclusions. In other words, inzage is carried out after the entire hearing process has been concluded. Each party to the trial may only examine the other party’s documents; they do not have the authority to obtain the relevant documents. It is mentioned in KPPU Regulation 1/2019 that the Prosecution Investigator and/or the reported party or their attorney may only record/take notes on the essence of the documents with the permission of the Commissioners Council.

Legal professional privilege is primarily regulated under Law No 18 of 2003 on Advocates (Law 18/2003). Article 19 of Law 18/2003 stipulates that:

• attorneys must keep in confidence all information that is known or obtained from their clients in relation to their profession unless otherwise stipulated by the law; and
• attorneys are entitled to keep their relationship with the client confidential, including protecting files and documents from any seizure or inspection and protecting against eavesdropping on the attorney’s electronic communications.

The above provisions also mean that such attorney’s files/documents need not be disclosed in an evidentiary proceeding, despite the confidential documents being in the possession of the advocate, client or a third party.

The current Indonesian antitrust regime does not regulate any leniency programme or settlement agreements. As such, no statutory protection from disclosure exists. However, in certain cases, the Indonesian antitrust regime allows a reported party to pursue behaviour change undertakings, requiring them to submit an integrity pact containing the defendant’s admission of guilt and commitment to changing their behaviour (ie, never to repeat their offence). The undertakings stop the KPPU examination process and business actors would avoid the imposition of administrative sanctions.

Witnesses of fact are acknowledged within the scope of Indonesian antitrust litigation to the extent that their testimony relates to the things experienced, seen or heard by the witnesses themselves. In the examination process, witnesses testify in an oral hearing and are subject to cross-examination by the commissioners council, KPPU investigators, and other reported parties. KPPU Regulation 1/2019 is silent on the submission of a written witness statement in the context of Indonesian antitrust litigation. This means that, while the submission itself is possible, the commissioners council is allowed to disregard a written witness statement in deciding the case.

Further, the reported parties in general are the parties that are required to provide evidence in the case. While the witnesses could also be requested to provide data and information to the commissioners council or the KPPU investigators, no direct consequences arise from disregarding this request. While it is arguable whether disregarding this request could be considered an obstruction to the KPPU examination, criminal sanctions under the ICL are applicable only for obstruction of the KPPU examination or investigation. However, it is worth noting that there have been no precedents on the implementation of these criminal sanctions to date. Nevertheless, in the context of summoning witnesses, the KPPU also has the authority to request an external investigator (eg, the Indonesian National Police) to present any witnesses to testify in a hearing.

Expert witnesses are also relied on in Indonesian antitrust litigation. Similar to witnesses of fact, expert witnesses are heard in the examination process where their testimony is subject to cross-examination by the Commissioners Council, KPPU investigators and other reported parties. In addition, KPPU Regulation 1/2019 also allows the submission of expert witnesses’ written statements.

The parties in general are free to select the expert that they would present in the hearing and do not require permission from the court to submit expert evidence.

Based on KPPU Regulation 4/2009, the KPPU will assess the damages based on actual losses suffered by the reporting party (actual damages). Exemplary or punitive damages are not available under the current ICL.

In general, the assessment of the actual damages conducted by the KPPU is similar to the approach used in the civil law context, where the burden of proof related to the amount of damages resulting from the anti-competitive conduct will be the responsibility of the claimant. However, the ICL and KPPU Regulation 4/2009 are silent on the mechanism for calculation and determination of the amount of damages by the KPPU.

Even though the ICL and KPPU Regulation 4/2009 do not clearly stipulate the damages calculation mechanism, there is precedent where KPPU imposed the order of payment of damages by the reported parties. In 2008, the KPPU issued a decision declaring that there was a violation of Article 23 of the ICL on the conspiracy behaviour conducted by: (i) EMI Music South-East Asia and PT EMI Indonesia (recording companies); (ii) Dewa 19 (local music band); and (iii) Iwan Sastra Wijaya (music entrepreneur) (collectively, “reported parties”).

In this case, PT Aquarius Musikindo (“Aquarius”) as the music recording company filed a claim for damages against the reported parties by calculating the losses from sales of Dewa 19’s cassette and CD albums amounting to IDR4,295,627,881. In its decision, the KPPU calculated the actual damages based on the proportional sales of cassette and CD albums, average sales, and profits from the sales of cassettes and CDs. From this calculation, KPPU then ordered EMI Music South-East Asia and PT EMI Indonesia to pay damages to Aquarius of IDR3,814,749,520.

Currently, the pass-on defence is not available in the ICL.

There is no provision under the ICL that stipulates interest payable on damages. The ICL (as amended by the Omnibus Law) only provides a penalty interest for default fines payment, which is explained in 1.2 Other Developments.

The interest on damages is generally governed under Indonesian Civil Law, which determines that interest for the late payment of damages is 6% per annum. This interest can be imposed without having to prove the loss suffered by the claimant/reporting party. However, the interest would only be payable if requested by the claimant before the court.

As discussed in the previous sections, the direct purchaser may request compensation for losses due to violation of the ICL. If the KPPU awards the request, the defendant shall be liable to pay compensation to the plaintiff. The ICL does not set a cap for damages, so the plaintiff may request freely the amount of damages and prove them. Further, there is no regulation on whether the damages can be joint or several. It would therefore depend on how the request for damages is made and how the KPPU decides on liability.

The current Indonesian antitrust regime does not recognise antitrust immunity or have a leniency programme. Therefore, there are no specific regulations on limitation of liability to direct purchasers. Liability would largely depend on proving causation between the conduct and the damage.

The current regime does not acknowledge contribution proceedings against a third party. Despite the absence of provisions concerning contribution proceedings, there was an antitrust case related to bid-rigging, whereby the judge allowed the defendant to settle the claims jointly. However, in recent years, no such cases exist, as the mechanism is not regulated under the laws and regulations.

The ICL does not allow the application or granting of injunctive relief. The KPPU can only issue a decision in the context of antitrust cases after all the examination process has been concluded. Therefore, any fines or instructions to cease certain activities can only be imposed by the KPPU at the end of the examination process.

In general, the ICL does not specifically stipulate any forms of alternative dispute settlement for antitrust cases. However, any party suffering loss or damage as a result of anti-competitive conduct can seek damages under a tort claim based on the final and binding KPPU decisions.

At the time of writing, there is no litigation funding available in Indonesia. Each of the reporting and reported parties must fund their cases, including their arrangements with their lawyers.

At the time of writing, awards of costs and security for costs are not available in Indonesia. 

However, there is a court fee in the appeal and cassation process of the KPPU decision to the commercial court and the Supreme Court, respectively. The losing party is usually ordered to pay the court fees, which are minimal.

On an appeal, a reported party can argue based on formality as well as the substance of the case. The substance of the case includes the facts of the case and the application of the law. This appeal must be filed in the commercial court where the reported party is domiciled. The procedure of the appeal against the KPPU decision is explained in 2.3 Decisions of National Competition Authorities.

The commercial court decisions are subject to cassation to the Supreme Court. Unlike the appeal to the commercial court, the Supreme Court would only review the application of laws and not the facts of the case. Therefore, cassation to the Supreme Court is only possible on the following limited basis:

• the lower court is not authorised to examine or it exceeds the limit of its authority;
• the lower court misapplied or violated the applicable law;
• the lower court failed to fulfil the conditions required by laws and regulations, the failure of which may result in annulment of the decision.