2016-07-29 | 30/POJK.04/2016Added
This regulation establishes the legal framework for Sharia Real Estate Investment Funds (DIRE Syariah) structured as Collective Investment Contracts, mandating that all contracts, management practices, and underlying assets comply with Sharia principles. It imposes specific operational constraints, including a 10% threshold for non-compliant revenue or area usage, and requires Investment Managers to maintain a Sharia Supervisory Board and obtain Sharia compliance statements. The Financial Services Authority (OJK) is granted enforcement powers to impose administrative sanctions, order asset purification, and mandate compensation for losses arising from non-compliant actions by Investment Managers or Custodian Banks.
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NUMBER 30 /POJK.04/2016
CONCERNING
SHARIA REAL ESTATE INVESTMENT FUNDS
IN THE FORM OF COLLECTIVE INVESTMENT CONTRACTS
BY THE GRACE OF THE ALMIGHTY GOD
THE COMMISSIONERS' COUNCIL OF THE FINANCIAL SERVICES AUTHORITY,
Considering: that in order to provide alternative investment products and encourage the development of the Sharia Capital Market industry in Indonesia, regulations regarding Sharia Real Estate Investment Funds in the form of Collective Investment Contracts are required by establishing a Financial Services Authority Regulation concerning Sharia Real Estate Investment Funds in the form of Collective Investment Contracts;
Considering: 1. Law Number 8 of 1995 concerning Capital Markets (State Gazette of the Republic of Indonesia Year 1995 Number 64, Supplement to the State Gazette of the Republic of Indonesia Number 3608);
2. Law Number 21 of 2011 concerning the Financial Services Authority (State Gazette of the Republic of Indonesia Year 2011 Number 111, Supplement to the State Gazette of the Republic of Indonesia Number 5253);
FINANCIAL SERVICES AUTHORITY
REPUBLIC OF INDONESIA
COPY
DECIDES:
Establish: FINANCIAL SERVICES AUTHABILITY REGULATION CONCERNING SHARIA REAL ESTATE INVESTMENT FUNDS IN THE FORM OF COLLECTIVE INVESTMENT CONTRACTS.
GENERAL PROVISIONS
In this Financial Services Authority Regulation, the following terms are defined as:
Any Party issuing Sharia DIRE Units in the form of a Collective Investment Contract must comply with the Sharia Principles in the Capital Market as regulated in the Financial Services Authority Regulation concerning the Application of Sharia Principles in the Capital Market, this Financial Services Authority Regulation, and other laws and regulations in the Capital Market sector regulating Real Estate Investment Funds in the form of Collective Investment Contracts.
(1) Sharia DIRE in the form of a Collective Investment Contract meets the Sharia Principles in the Capital Market if:
a. the contract (akad); b. the management method; and
c. Real Estate Assets, Real Estate-Related Assets, and/or cash and cash equivalents,
do not conflict with the Sharia Principles in the Capital Market as regulated in the Financial Services Authority Regulation concerning the Application of Sharia Principles in the Capital Market.
(2) Real Estate Assets as referred to in paragraph (1) must have generated income.
ISSUANCE OF SHARIA REAL ESTATE INVESTMENT FUNDS IN THE FORM OF COLLECTIVE INVESTMENT CONTRACTS
Parties issuing Sharia DIRE in the form of a Collective Investment Contract must follow laws and regulations in the Capital Market sector regulating Real Estate Investment Funds in the form of Collective Investment Contracts, unless specifically regulated in this Financial Services Authority Regulation.
(1) The Collective Investment Contract for Sharia DIRE, in addition to complying with regulations in the Capital Market sector regulating Real Estate Investment Funds in the form of Collective Investment Contracts as referred to in Article 4, must also contain at least the following provisions:
a. Investment Manager and Custodian Bank are representatives (wakil/in) acting on behalf of the holders of Sharia DIRE Units in the form of Collective Investment Contracts as principals (muwakil), where the Investment Manager is authorized to manage the collective investment portfolio and the Custodian Bank is authorized to execute Collective Custody; b. Real Estate Assets, Real Estate-Related Assets, and/or cash and cash equivalents do not conflict with the Sharia Principles in the Capital Market;
c. the mechanism for purifying Real Estate Assets, Real Estate-Related Assets, and/or cash and cash equivalents from elements conflicting with the Sharia Principles in the Capital Market;
d. the word "Sharia" in the name of the issued Real Estate Investment Fund; e. Sharia Contract and Sharia transaction scheme used in the issuance of Sharia DIRE in the form of Collective Investment Contract; f. summary of the Sharia Contract conducted by the Parties; g. the magnitude of the profit-sharing ratio, margin, or service fee; and h. the schedule plan and procedure for distribution and/or payment of profit-sharing, margin, or service fee.
(2) In addition to the provisions regulated in the Capital Market sector laws and regulations concerning the Guidelines for the Form and Content of Prospectus in the Framework of Public Offerings by Real Estate Investment Funds in the form of Collective Investment Contracts, the Prospectus for Sharia DIRE in the form of Collective Investment Contract must also contain information as referred to in paragraph (1) and be accompanied by information regarding:
a. the Sharia Supervisory Board of the Investment Manager, including:
1. a brief description of the Members of the Sharia Supervisory Board; and
2. the experience of the Members of the Sharia Supervisory Board;
b. members of the board of directors or officials responsible for implementing Custodian activities at the Custodian Bank who understand activities conflicting with the Sharia Principles in the Capital Market;
c. an explanation that the investment policy conducted by the Investment Manager does not conflict with the Sharia Principles in the Capital Market;
d. the handling of complaints from Unit Holders; and e. the dispute resolution mechanism may use Alternative Dispute Resolution Institutions.
(1) Investment Managers managing Sharia DIRE in the form of Collective Investment Contract must have a Sharia Supervisory Board.
(2) The issuance of Sharia DIRE in the form of Collective Investment Contract must obtain a Sharia compliance statement issued by the Sharia Supervisory Board of the Investment Manager or the Sharia Expert Team.
(3) Members of the Sharia Supervisory Board and Sharia Expert Teams as referred to in paragraph (2) must have CMS Expert permits from the Financial Services Authority as regulated in the Financial Services Authority Regulation concerning Capital Market Sharia Experts. (4) The Sharia Supervisory Board of the Investment Manager as referred to in paragraph (1) is responsible for supervising Sharia DIRE in the form of Collective Investment Contract to ensure continuous fulfillment of Sharia Principles in the Capital Market. (5) Costs arising from the implementation of the duties of the Sharia Supervisory Board and Sharia Expert Teams as referred to in paragraph (2) and paragraph (4) are borne by the Investment Manager.
(1) The Sharia Supervisory Board as referred to in Article 6 paragraph (4) must prepare an annual supervision report on the fulfillment of compliance with Sharia Principles in the Capital Market for the supervised Sharia DIRE in the form of Collective Investment Contract. (2) The report as referred to in paragraph (1) must be submitted by the Sharia Supervisory Board to the Board of Directors of the Investment Manager managing the Sharia DIRE in the form of Collective Investment Contract. (3) The report as referred to in paragraph (2) must contain at least:
a. the intended recipient; b. the report date;
c. a statement that the prepared report is in accordance with this Financial Services Authority Regulation;
d. a statement regarding the time frame and scope of supervision conducted by the Sharia Supervisory Board; e. the opinion of the Sharia Supervisory Board on the supervision conducted as referred to in letter d; and f. the signature, name of the Sharia Supervisory Board member, position of the Sharia Supervisory Board member, and CMS Expert permit number.
(4) The annual supervision report as referred to in paragraph (1) must be submitted by the Investment Manager managing the Sharia DIRE in the form of Collective Investment Contract to the Financial Services Authority, with the submission deadline coinciding with the submission of the annual financial report of the Sharia DIRE in the form of Collective Investment Contract.
(5) In the event that the Investment Manager submits the annual supervision report beyond the deadline as referred to in paragraph (4), the calculation of the number of days of delay in submitting the report is calculated from the first working day after the final submission deadline as referred to in paragraph (1).
MANAGEMENT OF SHARIA DIRE IN THE FORM OF COLLECTIVE INVESTMENT CONTRACTS
Sharia DIRE in the form of Collective Investment Contract is prohibited from having:
a. income conflicting with the Sharia Principles in the Capital Market originating from Real Estate Assets exceeding 10% (ten percent) of the total income of the Sharia DIRE; and/or b. area usage conflicting with the Sharia Principles in the Capital Market exceeding 10% (ten percent) of the area of Real Estate Assets.
Investment Managers must ensure that the management of wealth of Sharia DIRE in the form of Collective Investment Contract and financing obtained by Sharia DIRE in the form of Collective Investment Contract do not conflict with the Sharia Principles in the Capital Market.
In the event that Sharia DIRE in the form of Collective Investment Contract uses financial services, Sharia DIRE in the form of Collective Investment Contract must use financial services that do not conflict with Sharia principles.
(1) In the event that Sharia DIRE in the form of Collective Investment Contract has income from the management of Real Estate Assets of Sharia DIRE in the form of Collective Investment Contract that conflicts with the Sharia Principles in the Capital Market, which is not caused by the actions of the Investment Manager and Custodian Bank, then:
a. The Investment Manager must make adjustments as soon as possible to the composition of income conflicting with the Sharia Principles in the Capital Market exceeding 10% (ten percent) of the total income of Sharia DIRE in the form of Collective Investment Contract in accordance with the provisions in Article 8, no later than 1 (one) year since the income conflicting with the Sharia Principles in the Capital Market originating from Real Estate Assets of Sharia DIRE in the form of Collective Investment Contract exceeded 10% (ten percent) of the total income of Sharia DIRE in the form of Collective Investment Contract. b. Income originating from Real Estate Assets conflicting with the Sharia Principles in the Capital Market can be calculated in the Net Asset Value of Sharia DIRE.
(2) In the event that Sharia DIRE in the form of Collective Investment Contract has Real Estate-Related Assets conflicting with the Sharia Principles in the Capital Market, which is not caused by the actions of the Investment Manager and Custodian Bank, the Investment Manager must sell as soon as possible no later than 10 (ten) working days since:
a. Real Estate-Related Assets in the form of stocks are no longer listed in the Sharia Securities List, with the provision that the capital gain from the selling price compared to the Fair Market Value at the time they were still listed in the Sharia Securities List can be calculated in the Net Asset Value of Sharia DIRE; and/or b. Securities other than stocks and/or money market instruments do not meet Sharia Principles, with the provision that the capital gain from the selling price compared to the Fair Market Value at the time they still met the Sharia Principles in the Capital Market can be calculated in the Net Asset Value of Sharia DIRE.
(1) In the event that the actions of the Investment Manager and Custodian Bank result in Sharia DIRE in the form of Collective Investment Contract having income from the management of Real Estate Assets of Sharia DIRE in the form of Collective Investment Contract that conflicts with the Sharia Principles in the Capital Market, the Financial Services Authority has the authority to:
a. mandate the Investment Manager to make adjustments as soon as possible to the composition of income conflicting with the Sharia Principles in the Capital Market exceeding 10% (ten percent) of the total income of Sharia DIRE in the form of Collective Investment Contract in accordance with the provisions in Article 8, no later than 90 (ninety) days since the income conflicting with the Sharia Principles in the Capital Market originating from Real Estate Assets of Sharia DIRE in the form of Collective Investment Contract exceeded 10% (ten percent) of the total income of Sharia DIRE in the form of Collective Investment Contract; b. mandate the Investment Manager to purify income conflicting with the Sharia Principles in the Capital Market from the management of Real Estate Assets of Sharia DIRE in the form of Collective Investment Contract, without calculating such income in the calculation of the Net Asset Value of Sharia DIRE in the form of Collective Investment Contract and treating it as social funds;
c. mandate the Investment Manager and Custodian Bank jointly and severally to replace the assets of Sharia DIRE in the form of Collective Investment Contract resulting from the price difference from the Fair Market Value at the time they still met the Sharia Principles in the Capital Market; and/or
d. mandate the Investment Manager to announce to the public the obligations imposed by the Financial Services Authority as referred to in letter a and letter b, no later than the end of the 2nd (second) working day after receiving the Financial Services Authority letter, in 2 (two) daily newspapers in the Indonesian language with national circulation, at the expense of the Investment Manager and Custodian Bank.
(2) In the event that the actions of the Investment Manager and Custodian Bank result in Sharia DIRE in the form of Collective Investment Contract having income from Real Estate-Related Assets and/or cash and cash equivalents that conflicts with the Sharia Principles in the Capital Market, the Financial Services Authority has the authority to:
a. prohibit the Investment Manager and Custodian Bank from transferring the wealth of Sharia DIRE in the form of Collective Investment Contract other than for the purpose of purifying the wealth of Sharia DIRE in the form of Collective Investment Contract from elements conflicting with the Sharia Principles in the Capital Market; b. mandate the Investment Manager on behalf of Sharia DIRE in the form of Collective Investment Contract to sell or transfer the assets of Sharia DIRE in the form of Collective Investment Contract from assets conflicting with the Sharia Principles in the Capital Market, with the provisions:
1. The Investment Manager and Custodian Bank jointly and severally must replace the assets of Sharia DIRE in the form of Collective Investment Contract resulting from the price difference from the Fair Market Value at the time they still met the Sharia Principles in the Capital Market; and
2. in the event of capital gain from the selling price compared to the Fair Market Value at the time they still met the Sharia Principles in the Capital Market, such gain is separated from the calculation of the Net Asset Value of Sharia DIRE in the form of Collective Investment Contract and treated as social funds;
c. mandate the Investment Manager and Custodian Bank jointly and severally to purchase the portfolio of Sharia DIRE in the form of Collective Investment Contract at acquisition price or clean the funds of Sharia DIRE in the form of Collective Investment Contract conflicting with the Sharia Principles in the Capital Market within a time frame determined by the Financial Services Authority; and/or
d. announce to the public the prohibitions and/or obligations imposed by the Financial Services Authority as referred to in letter a, letter b, and letter c, no later than the end of the 2nd (second) working day after receiving the Financial Services Authority letter, in 2 (two) daily newspapers in the Indonesian language with national circulation, at the expense of the Investment Manager and Custodian Bank.
(3) The Custodian Bank must submit to the Financial Services Authority and holders of Sharia DIRE in the form of Collective Investment Contract information regarding the acquisition of price differences from the Fair Market Value as referred to in paragraph (1) letter c and paragraph (2) letter b number 1, as well as information regarding its use as social funds as referred to in paragraph (2) letter b number 2, no later than on the 12th (twelfth) day of the following month (if any).
(4) In the event that the 12th (twelfth) day falls on a holiday, the information as referred to in paragraph (3) must be submitted no later than 1 (one) working day thereafter.
(1) In the event that the Investment Manager and Custodian Bank do not fulfill their obligations as referred to in Article 12, the Financial Services Authority has the authority to replace the Investment Manager, Custodian Bank, or order the dissolution of the Sharia DIRE in the form of Collective Investment Contract. (2) In the event that the Investment Manager and Custodian Bank do not dissolve the Sharia DIRE in the form of Collective Investment Contract as referred to in paragraph (1), the Financial Services Authority has the authority to dissolve the Sharia DIRE in the form of Collective Investment Contract.
SANCTION PROVISIONS
(1) Without prejudice to criminal provisions in the Capital Market sector, the Financial Services Authority has the authority to impose administrative sanctions on any party violating the provisions of this Financial Services Authority Regulation, including parties causing the violation, in the form of:
a. written warning; b. fine, namely the obligation to pay a certain amount of money;
c. restriction of business activities;
d. suspension of business activities; e. revocation of business license; f. cancellation of approval; and g. cancellation of registration.
(2) Administrative sanctions as referred to in paragraph (1) letter b, letter c, letter d, letter e, letter f, or letter g may be imposed with or without prior imposition of administrative sanctions in the form of written warning as referred to in paragraph (1) letter a.
(3) Administrative sanctions in the form of fines as referred to in paragraph (1) letter b may be imposed separately or together with the imposition of administrative sanctions as referred to in paragraph (1) letter c, letter d, letter e, letter f, or letter g.
In addition to administrative sanctions as referred to in Article 14 paragraph (1), the Financial Services Authority may take certain actions against any party violating the provisions of this Financial Services Authority Regulation.
The Financial Services Authority may announce the imposition of administrative sanctions as referred to in Article 14 paragraph (1) and specific actions as referred to in Article 15 to the public.
CLOSING PROVISIONS
This Financial Services Authority Regulation takes effect on the date of enactment.
To ensure that everyone knows it, ordering the enactment of this Financial Services Authority Regulation by placing it in the State Gazette of the Republic of Indonesia.
Established in Jakarta on July 29, 2016
CHAIRMAN OF THE COMMISSIONERS' COUNCIL
FINANCIAL SERVICES AUTHORITY, signed
MULIAMAN D. HADAD
Enacted in Jakarta on July 29, 2016
MINISTER OF LAW AND HUMAN RIGHTS
REPUBLIC OF INDONESIA, signed
YASONNA H. LAOLY
STATE GAZETTE OF THE REPUBLIC OF INDONESIA YEAR 2016 NUMBER 151
Copy in accordance with the original
Legal Director 1
Legal Department signed
Yuliana
OF
FINANCIAL SERVICES AUTHORITY REGULATION
NUMBER 30 /POJK.04/2016
CONCERNING
SHARIA REAL ESTATE INVESTMENT FUNDS
IN THE FORM OF COLLECTIVE INVESTMENT CONTRACTS
In order to develop the Sharia Capital Market so that it can grow sustainably, adequate infrastructure development is required. One of the efforts to develop Sharia Capital Market infrastructure is by diversifying Sharia-based investment products in the Capital Market.
Diversification of Sharia-based investment products in the Capital Market can be done by creating new products or by applying Sharia principles to conventional investment products. Real Estate Investment Funds in the form of Collective Investment Contracts are one of the conventional investment products that have the potential to be developed into one of the Sharia-based investment products, considering that Real Estate Investment Funds in the form of Collective Investment Contracts are investment products directly related to the real sector and have the potential for significant contribution to the growth of the Capital Market industry. With the existence of the Sharia Real Estate Investment Fund in the form of Collective Investment Contract product, it can enrich investment alternatives for investors, especially for investors who will invest in Sharia products in the Capital Market, to choose Sharia-based investment alternatives.
The Financial Services Authority Regulation concerning Real Estate Investment Funds in the form of Collective Investment Contracts provides guidelines for Investment Managers and Custodian Banks in the issuance of Sharia Real Estate Investment Funds in the form of Collective Investment Contracts, covering Sharia provisions in such issuance. Several main provisions regarding Sharia in the aforementioned Financial Services Authority Regulation include: the contract (akad), management method, and Real Estate Assets, Real Estate-Related Assets and/or cash and cash equivalents do not conflict with the Sharia Principles in the Capital Market.
Sufficiently clear.
At the time this Financial Services Authority Regulation takes effect, the laws and regulations in the Capital Market sector regulating Real Estate Investment Funds in the form of Collective Investment Contracts that apply are:
a. Regulation Number IX.C.15, Annex of the Decision of the Chairman of the Capital Market Supervisory Board and Financial Institutions Number: Kep-423/BL/2007 dated December 18, 2007 concerning Registration Statement in the Framework of Public Offerings by Real Estate Investment Funds in the form of Collective Investment Contracts; b. Regulation Number IX.C.16, Annex of the Decision of the Chairman of the Capital Market Supervisory Board and Financial Institutions Number: Kep-424/BL/2007 dated December 18, 2007 concerning Guidelines on the Form and Content of Prospectus in the Framework of Public Offerings by Real Estate Investment Funds in the form of Collective Investment Contracts;
c. Regulation Number IX.M.2, Annex of the Decision of the Chairman of the Capital Market Supervisory Board and Financial Institutions Number: Kep-426/BL/2007 dated December 18, 2007 concerning Guidelines for Collective Investment Contracts of Real Estate Investment Funds in the form of Collective Investment Contracts; and
d. Financial Services Authority Regulation Number 19/POJK.04/2016 concerning Guidelines for Investment Managers and Custodian Banks Managing Real Estate Investment Funds in the form of Collective Investment Contracts.
Article 3
It is clear enough.
Article 4
At the time this Financial Services Authority regulation comes into force, the existing legislation in the Capital Market sector regulating Sharia Real Estate Investment Funds in the form of Collective Investment Contracts that are in effect are:
a. Regulation Number IX.C.15, Appendix of the Decision of the Chairman of the Capital Market Supervisory Board and Financial Institutions Number: Kep-423/BL/2007 dated December 18, 2007 concerning Registration Statements in the Framework of Public Offerings by Sharia Real Estate Investment Funds in the form of Collective Investment Contracts; b. Regulation Number IX.C.16, Appendix of the Decision of the Chairman of the Capital Market Supervisory Board and Financial Institutions Number: Kep-424/BL/2007 dated December 18, 2007 concerning Guidelines on the Form and Content of Prospectuses in the Framework of Public Offerings by Sharia Real Estate Investment Funds in the form of Collective Investment Contracts;
c. Regulation Number IX.M.2, Appendix of the Decision of the Chairman of the Capital Market Supervisory Board and Financial Institutions Number: Kep-426/BL/2007 dated December 18, 2007 concerning Guidelines for Collective Investment Contracts of Sharia Real Estate Investment Funds in the form of Collective Investment Contracts; and
d. Financial Services Authority Regulation Number 19/POJK.04/2016 concerning Guidelines for Investment Managers and Custodian Banks Managing Sharia Real Estate Investment Funds in the form of Collective Investment Contracts.
Article 5
Paragraph (1)
It is clear enough.
Paragraph (2)
At the time this Financial Services Authority regulation comes into force, the existing legislation in the Capital Market sector regulating the Guidelines on the Form and Content of Prospectuses in the Framework of Public Offerings by Sharia Real Estate Investment Funds in the form of Collective Investment Contracts that are in effect is Regulation Number IX.C.16, Appendix of the Decision of the Chairman of the Capital Market Supervisory Board and Financial Institutions Number: Kep-424/BL/2007 dated December 18, 2007 concerning Guidelines on the Form and Content of Prospectuses in the Framework of Public Offerings by Sharia Real Estate Investment Funds in the form of Collective Investment Contracts.
Letter a
It is clear enough.
Letter b
In the event that the Custodian Bank is a Branch of a Foreign Bank, the term "board of directors or responsible official" refers to the highest leadership of that Foreign Bank Branch.
Letter c
It is clear enough.
Letter d
Examples of handling unit holder complaints include the complaint resolution mechanism.
Letter e
It is clear enough.
Article 6
It is clear enough.
Article 7
It is clear enough.
Article 8
Letter a
Example of income limits for Sharia Real Estate Investment Funds (DIRE Syariah) in the form of Collective Investment Contracts that contradict Sharia Principles in the Capital Market originating from Real Estate assets:
The total income of Sharia Real Estate Investment Funds in the form of Collective Investment Contracts includes income from Real Estate assets, Real Estate-related assets, and/or cash and cash equivalents totaling Rp2,000,000,000.00, detailed as:
Letter b
Example of area limits for Sharia Real Estate Investment Funds (DIRE Syariah) in the form of Collective Investment Contracts that contradict Sharia Principles in the Capital Market:
The total area used by Sharia Real Estate Investment Funds in the form of Collective Investment Contracts is 10,000 m², so the calculation of the area limit used by Sharia Real Estate Investment Funds in the form of Collective Investment Contracts that contradict Sharia Principles in the Capital Market is 10,000 m² x 10% = 1,000 m².
Article 9
It is clear enough.
Article 10
The term "financial services that do not contradict Sharia principles" refers to financial services provided by Sharia financial institutions or conventional financial institutions, provided that the financial services do not contradict Sharia principles.
Article 11
It is clear enough.
Article 12
It is clear enough.
Article 13
It is clear enough.
Article 14
It is clear enough.
Article 15
The term "specific actions" includes, among others, ordering the Investment Manager to halt the issuance of Sharia Real Estate Investment Funds in the form of Collective Investment Contracts.
Article 16
It is clear enough.
Article 17
It is clear enough.
SUPPLEMENT TO THE STATE GAZETTE OF THE REPUBLIC OF INDONESIA NUMBER 5912
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