2020-12-11 | 53/POJK.04/2020Added · Updated
This regulation establishes the legal framework for securities accounts held by custodians, defining securities, collective custody, and beneficial ownership rights. It mandates that custodians provide written confirmations of beneficial ownership and maintain records of transactions, while ensuring that securities in collective custody are treated as fungible unless specified otherwise. The document outlines the rights of account holders to receive dividends, voting materials, and account statements, and imposes strict obligations on custodians regarding insurance, confidentiality, and the handling of securities in the event of liquidation. It further regulates the registration of securities under the custodian's name and the absolute confirmation of delivery against payment to ensure transactional certainty.
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COPY
FINANCIAL SERVICES AUTHORITY REGULATION
NUMBER 53/POJK.04/2020
REGARDING
SECURITIES ACCOUNTS WITH CUSTODIANS
BY THE GRACE OF GOD THE ALMIGHTY
THE BOARD OF COMMISSIONERS OF THE FINANCIAL SERVICES AUTHORITY, Considering:
a. that with the enactment of Law Number 21 of 2011 concerning the Financial Services Authority, since December 31, 2012, the functions, duties, and authority for regulation and supervision of financial services activities in the capital market sector, including regulation regarding securities accounts with custodians, have been transferred from the Capital Market Supervisory Agency and Financial Institutions to the Financial Services Authority; b. that to provide clarity and certainty regarding the regulation of securities accounts with custodians, existing capital market sector regulations regarding securities accounts with custodians issued prior to the establishment of the Financial Services Authority need to be changed into a Financial Services Authority Regulation; FINANCIAL SERVICES AUTHORITY REPUBLIC OF INDONESIA
c. that based on the considerations referred to in letters a and b, it is necessary to establish a Financial Services Authority Regulation regarding Securities Accounts with Custodians;
Recalling:
CHAPTER I
GENERAL PROVISIONS
Article 1
In this Financial Services Authority Regulation, the following definitions apply:
CHAPTER II
EVIDENCE OF BENEFICIAL OWNERSHIP OF SECURITIES
Article 2
Securities recorded in the Securities account with the Custodian in Collective Custody may take the following forms:
a. registered certificates in the name of a specific Party, provided the Custodian has the authority to sell or transfer such Securities in another manner and register such Securities in the name of another Party; b. certificates registered in the name of the Custodian;
c. bearer certificates;
d. Securities to be received by the Custodian from another Custodian's Securities account in the name of the said Custodian; e. Securities to be received by the Custodian from the Issuer or the Securities Administration Office; f. Securities to be received by the Custodian from the clearing and guarantee institution; g. Securities to be received by the Custodian from another Securities Company; h. Securities lent by the Custodian at the request or with the approval of the Securities account holder;
i. Securities to be received by the Custodian from another Securities account holder with the same Custodian;
j. Securities to be received by the Custodian from other Parties; and k. Securities that must be replaced by the Custodian, lost, or represent the difference between the Securities balance and the physical calculation.
Article 3
Evidence of Beneficial Ownership of Securities must be provided by the Custodian to the Securities account holder in the form of written confirmation.
Article 4
The transfer of Beneficial Ownership of Securities must be recorded by debiting and crediting the Securities account with the Custodian and confirmed to the Securities account holder by providing:
a. confirmation of purchase or sale of Securities; b. receipt of storage of Securities into the Securities account;
c. confirmation of receipt or delivery of Securities;
d. monthly Securities account report regarding debits and credits in the Securities account; or e. other documents issued by the Custodian related to debits and credits in the Securities account, including electronic confirmations.
Article 5
Beneficial Ownership of Securities in the Securities account can be proven from the Issuer's announcement regarding the distribution of rights to Registered Ownership of Securities, if the relevant Securities are recorded in the Securities account on a specific date, such as:
a. distribution of bonus shares or stock dividends; b. consolidation or splitting of shares;
c. distribution of pre-emptive rights;
d. payment of bond maturity or conversion of Securities; or e. distribution of other rights.
Article 6
In the event of a dispute between the account holder and the Custodian regarding the balance in the Securities account, such dispute must be resolved based on available evidence, including but not limited to:
a. the Securities account report and confirmations sent by the Custodian to the account holder; b. the Custodian's books and records, with the provisions that:
CHAPTER III
REGISTRATION OF SECURITIES IN THE NAME OF THE CUSTODIAN
Article 7
Registration of Securities in the name of the Custodian as a representative of the account holder may be accompanied by information regarding the citizenship and tax status of the account holders.
Article 8
Shares registered in the name of the Custodian as a representative of the founding shareholders must be treated by the Issuer as shares owned by the founding shareholders.
Article 9
In determining citizenship, tax status, identity, and other information regarding account holders represented by the Custodian, the Issuer and the Securities Administration Office must base their actions on a written statement from such Custodian.
CHAPTER IV
FUNGIBILITY OF SECURITIES
Article 10
(1) Securities recorded in the Securities account with the Custodian are considered Securities in Collective Custody.
(2) Securities in Collective Custody are considered fungible.
(3) In the event of an Issuer's action related to Securities that generates benefits or costs for specific Securities in Collective Custody but does not apply to all similar Securities, such benefits and/or costs must be distributed and/or borne proportionally based on the Beneficial Ownership of such Securities with the Custodian.
Article 11
Account holders may assert that specific Securities are non-fungible Securities with the following provisions:
a. such Securities are stored in a separate Safekeeping Account from the Securities account based on the account holder's instruction; and b. Securities intended as non-fungible Securities must be asserted in the confirmation by the Custodian to the account holder at the time such Securities are recorded in the Safekeeping Account.
Article 12
This regulation only applies to Securities in Collective Custody.
CHAPTER V
RIGHTS AND OBLIGATIONS OF SECURITIES ACCOUNT HOLDERS
Article 13
The rights and obligations of account holders are determined in the written account opening contract between the account holder and the Custodian.
Article 14
Beneficial Ownership of Securities includes the right to claim against the Custodian to:
a. deliver Securities certificates recorded in the Securities account to be in the name of the account holder within 7 (seven) working days since the request for delivery of Securities is received by the Custodian, except:
Article 15
Securities recorded in the Securities account are not the property of the Custodian; therefore, such Securities cannot be taken or seized by the Custodian's creditors.
Article 16
(1) In the event that the Custodian is liquidated due to bankruptcy or dissolution, the liquidator must return Securities recorded in the Securities account to the respective account holder, with the following provisions:
a. Securities in the name of Parties other than the account holder must be registered in the name of the account holder; b. Securities that are still claims from other parties must be claimed and registered in the name of the account holder;
c. Securities that are doubtful claims from other Parties or Securities that are lost, fake, damaged, or for any other reason cannot be used must be replaced by purchasing similar Securities and registered in the name of the account holder at the cost of the Custodian, the payment of which is taken from:
Article 17
In the event that there is no instruction from the account holder stating otherwise, the Custodian must maintain the confidentiality of the account holder's identity, except for informing the Issuer about the tax status and citizenship of the account holder or as otherwise determined in applicable regulations.
CHAPTER VI
RIGHTS AND OBLIGATIONS OF CUSTODIANS
Article 18
The Custodian has the right to claim damages arising from the actions of the account holder and/or cancel the recording of Securities into the Securities account, with the provisions that:
a. in the event of errors in recording Securities and/or funds into the Securities account, the Custodian must correct such errors by notifying the account holder; and b. in the event that Securities recorded in the Securities account are fake, lost, stolen, or obtained through illegal means, the Custodian has the right to cancel the recording of such Securities, and if such Securities have been stored in the Securities account by the account holder and subsequently transferred out of the Securities account, the Custodian has the right to claim damages (if there is a claim for damages) from the account holder.
Article 19
(1) Securities Companies and Custodian Banks must insure Securities accounts against risks of losses to account holders in the event that such companies go bankrupt.
(2) Directors and commissioners of Securities Companies and Custodian Banks must issue a statement at the end of each year stating that such Securities Company and Custodian Bank have insurance policies as referred to in paragraph (1) for the interest of account holders, and such statements must disclose material matters regarding the insurance. (3) Copies of statements as referred to in paragraph (2) must be displayed in an easily visible place at the marketing offices of Securities Companies or Custodian Banks and must be sent to all Securities account holders at the end of each year.
CHAPTER VII
LIABILITY FOR SECURITIES DELIVERED
Article 20
(1) Parties who input and store Securities into the Securities account are responsible to the Custodian for the authenticity of such Securities.
(2) The Custodian must be responsible for the authenticity of Securities delivered to other Parties, both physically and through book transfers.
(3) Issuers who register Securities in the name of the Custodian as a representative of the Securities account holder or issue confirmations of the authenticity of specific Securities certificates must be responsible for the authenticity of such Securities.
Article 21
Registration of Securities or confirmation of the authenticity of Securities certificates by the Issuer must be carried out with the following provisions:
a. the Issuer may appoint a Securities Administration Office to conduct registration or confirmation of the authenticity of Securities certificates and other activities as the Issuer's representative, but the Issuer remains responsible for all such activities; b. requests for registration of Securities in the name of the Custodian or other Parties, or requests for confirmation of the authenticity of Securities certificates, must be resolved by the Issuer within 5 (five) working days since the request is received by the Issuer;
c. confirmation of the authenticity of Securities certificates must be made in the form of embossed stamps or in the form of documents with high security systems permanently attached to the Securities certificates;
d. the Issuer must reject requests for registration of Securities or confirmation of the authenticity of Securities certificates submitted to it if the Issuer finds that such Securities are pledged, seized, fake, reported lost or stolen, or for any other reason according to law, the registration of Securities or confirmation of the authenticity of such Securities certificates cannot be implemented, and such rejection must be submitted in writing, including the relevant Securities certificates, to the applicant no later than 5 (five) working days since the request is received by the Issuer, providing reasons for rejection; e. letters of rejection for registration of Securities or confirmation of the authenticity of Securities certificates as referred to in letter d must be signed by the Issuer or the Securities Administration Office appointed by the Issuer; f. in the event that the reasons for rejection involve or relate to criminal acts such as embezzlement, theft, or forgery, a copy of the rejection letter must be submitted to the Financial Services Authority; and g. in the event of negligence or insufficient internal controls or security in processing, issuing, or storing Securities, resulting in the loss of Securities or errors in the issuance of Securities, including the issuance of Securities exceeding the correct amount, the Issuer must immediately take action to resolve such issues, including purchasing and canceling Securities that should not have been issued or replacing such Securities with similar Securities obtained through purchase and then delivered to the respective Securities holder.
CHAPTER VIII
ABSOLUTE CONFIRMATION OF DELIVERY OF SECURITIES AGAINST PAYMENT
Article 22
Account holders have the right to instruct the Custodian to issue and implement absolute confirmation of delivery of Securities against payment, unless otherwise determined in the account opening agreement, with the following provisions:
a. such confirmation must be issued by the Custodian for Securities Companies that are Members of the Stock Exchange; b. such confirmation is an order from the account holder to the Custodian to deliver or receive Securities against payment, in connection with transactions executed by the Securities Company within certain price limits;
c. such confirmation can only be used by the Securities Company designated by the account holder for a specific period of no less than 7 (seven) days, with the following provisions:
to issue such Confirmation, with the following provisions:
a) if the order is received before 14:00 Western Indonesian Time (WIB), written confirmation must be submitted no later than two hours after the order is received; and b) if the order is received after 14:00 WIB, such written confirmation must be submitted no later than 09:30 WIB on the next working day;
f. Transfer of Securities from one Securities Account to another Securities Account at the same Custodian in the course of implementing such Confirmation is considered as full settlement of such Confirmation; g. issuance of such Confirmation does not oblige the Brokerage Company to execute Securities Transactions; h. The Custodian is liable for losses suffered by the designated Brokerage Company in such Confirmation, including losses related to replacement funds for Stock Exchange settlement, if such losses are caused by the Custodian:
i. such Confirmation must be in written form accompanied by authenticity verification and issued by the Custodian using the following procedures:
CHAPTER IX
ADMINISTRATIVE SANCTIONS
Article 23
(1) Any party who violates the provisions as referred to in Article 3, Article 4, Article 6, Article 8, Article 9, Article 10 paragraph (3), Article 11 letter b, Article 16, Article 17, Article 19, Article 20, Article 21, and Article 22 letter a, letter c number 1, letter d, letter e, letter h, and letter i shall be subject to administrative sanctions.
(2) Sanctions as referred to in paragraph (1) shall also be imposed on Parties who cause the occurrence of violations as referred to in paragraph (1).
(3) Sanctions as referred to in paragraph (1) and paragraph (2) shall be imposed by the Financial Services Authority.
(4) Administrative sanctions as referred to in paragraph (1) consist of:
a. written warning; b. fines, namely the obligation to pay a certain amount of money;
c. restriction of business activities;
d. suspension of business activities; e. revocation of business licenses; f. cancellation of approvals; and/or g. cancellation of registration.
(5) Administrative sanctions as referred to in paragraph (4) letters b, c, d, e, f, or g may be imposed with or without being preceded by the imposition of administrative sanctions in the form of a written warning as referred to in paragraph (4) letter a. (6) Administrative sanctions in the form of fines as referred to in paragraph (4) letter b may be imposed separately or together with the imposition of administrative sanctions as referred to in paragraph (4) letters c, d, e, f, or g. (7) The procedure for imposing sanctions as referred to in paragraph (3) shall be implemented in accordance with applicable legislation.
Article 24
In addition to administrative sanctions as referred to in Article 23 paragraph (4), the Financial Services Authority may take specific actions against any party who violates the provisions of this Financial Services Authority Regulation.
Article 25
The Financial Services Authority may announce the imposition of administrative sanctions as referred to in Article 24 paragraph (4) and specific actions as referred to in Article 25 to the public.
CHAPTER X
CLOSING PROVISIONS
Article 26
Upon the commencement of this Financial Services Authority Regulation, the Decision of the Head of the Capital Market Supervisory Agency Number Kep-48/PM/1997 dated December 26, 1997 concerning Securities Accounts at Custodians, along with Regulation Number VI.A.3 which serves as its attachment, is revoked and declared invalid.
Article 27
This Financial Services Authority Regulation comes into force on the date it is promulgated.
This copy corresponds to the original
Director of Law 1
Legal Department signed
Mufli Asmawidjaja
To ensure everyone knows, ordering the promulgation of this Financial Services Authority Regulation by placing it in the State Gazette of the Republic of Indonesia.
Determined in Jakarta on December 3, 2020
CHAIRMAN OF THE COMMISSIONERS BOARD
FINANCIAL SERVICES AUTHORITY
REPUBLIC OF INDONESIA, signed
WIMBOH SANTOSO
Promulgated in Jakarta on December 11, 2020
MINISTER OF LAW AND HUMAN RIGHTS
REPUBLIC OF INDONESIA, signed
YASONNA H. LAOLY
STATE GAZETTE OF THE REPUBLIC OF INDONESIA YEAR 2020 NUMBER 277
EXPLANATION
OF
FINANCIAL SERVICES AUTHORITY REGULATION
NUMBER 53 /POJK.04/2020
CONCERNING
SECURITIES ACCOUNTS AT CUSTODIANS
I. GENERAL
That since December 31, 2012, the functions, duties, and authorities for regulating and supervising financial services activities in the capital market, insurance, pension funds, financing institutions, and other financial service institutions have shifted from the Minister of Finance and the Capital Market and Financial Institution Supervisory Agency to the Financial Services Authority.
In light of the above, it is necessary to restructure existing regulations, particularly those related to the capital market sector, by converting Capital Market and Financial Institution Supervisory Agency regulations related to the capital market into Financial Services Authority regulations. This restructuring is carried out so that there are Financial Services Authority regulations regarding the capital market sector that are consistent with Financial Services Authority regulations in other sectors.
Based on the background thinking and aspects mentioned, it is necessary to replace the existing legislation in the capital market sector regulating Securities Accounts at Custodians, namely the Decision of the Head of the Capital Market Supervisory Agency Number Kep-48/PM/1997 dated December 26, 1997 concerning Securities Accounts at Custodians along with Regulation Number VI.A.3 which serves as its attachment, into a Financial Services Authority Regulation concerning Securities Accounts at Custodians.
II. ARTICLE BY ARTICLE
Article 1
Quite clear.
Article 2
Quite clear.
Article 3
Quite clear.
Article 4
Quite clear.
Article 5
Quite clear.
Article 6
Quite clear.
Article 7
Quite clear.
Article 8
Quite clear.
Article 9
Quite clear.
Article 10
Quite clear.
Article 11
Quite clear.
Article 12
Quite clear.
Article 13
Quite clear.
Article 14
Quite clear.
Article 15
Quite clear.
Article 16
Quite clear.
Article 17
Quite clear.
Article 18
Quite clear.
Article 19
Quite clear.
Article 20
Quite clear.
Article 21
Quite clear.
Article 22
Quite clear.
Article 23
Quite clear.
Article 24
What is meant by "specific actions" includes among other things actions by the Financial Services Authority ordering the Custodian to improve standard operating procedures.
Article 25
Quite clear.
Article 26
Quite clear.
Article 27
Quite clear.
SUPPLEMENT TO THE STATE GAZETTE OF THE REPUBLIC OF INDONESIA NUMBER 6590
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Source: Otoritas Jasa Keuangan (Financial Services Authority) — original document · Summary generated with machine assistance and reviewed before publication; the authoritative text is the regulator's original document. How RegAlert works
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