2015-11-10 | 18/POJK.04/2015Added
The Financial Services Authority establishes regulations for the issuance and requirements of Sukuk, defining Sukuk as Sharia-compliant certificates representing undivided shares in underlying assets. Issuers must ensure underlying assets and transactions comply with Sharia principles, obtain Sharia compliance statements from a Sharia Supervisory Board or Sharia Expert Team, and include specific disclosures in prospectuses and trust deeds. The regulation mandates the use of proceeds for Sharia-compliant activities, outlines the conversion of Sukuk to debt if Sharia principles are violated, and grants the Authority power to impose administrative sanctions for non-compliance.
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BY THE GRACE OF GOD THE ALMIGHTY,
THE COMMISSIONERS OF THE FINANCIAL SERVICES AUTHORITY,
Considering: that in order to encourage the development of the Islamic Capital Market industry in Indonesia, it is necessary to refine regulations regarding the Issuance of Sharia Securities by establishing a Financial Services Authority Regulation concerning the Issuance and Requirements of Sukuk;
Recalling: 1. Law Number 8 of 1995 concerning the Capital Market (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);
DECIDING:
To Establish: A FINANCIAL SERVICES AUTHORITY REGULATION CONCERNING THE ISSUANCE AND REQUIREMENTS OF SUKUK.
FINANCIAL SERVICES AUTHORITY
REPUBLIC OF INDONESIA
COPY
In this Financial Services Authority Regulation, the following terms are defined as:
Assets that form the basis of Sukuk must not contradict the Sharia Principles in the Capital Market.
Assets that form the basis of Sukuk as referred to in Article 2 may consist of:
a. specific tangible assets (a’yan maujudat); b. the value of benefits over specific tangible assets (manafiul a’yan), whether existing or to be created;
c. services (al khadamat) that are existing or to be created;
d. specific project assets (maujudat masyru’ mu’ayyan); and/or e. determined investment activities (nasyath ististmarin khashah).
Issuers conducting a Public Offering of Sukuk must comply with the provisions in the Financial Services Authority Regulation concerning the Implementation of Sharia Principles in the Capital Market, this Financial Services Authority Regulation, and other legislation in the Capital Market sector.
(1) Issuers conducting a Public Offering of Sukuk as referred to in Article 4 must obtain a statement of Sharia compliance for the Sukuk in the Public Offering from the Issuer's Sharia Supervisory Board or the Sharia Expert Team. (2) The statement of Sharia compliance as referred to in paragraph (1) must:
a. be submitted by Issuers that are not Medium or Small Enterprises to the Financial Services Authority before the Issuer can begin announcing the Short Prospectus and be included in the Short Prospectus and Prospectus; or b. be submitted by Issuers that are Medium or Small Enterprises to the Financial Services Authority before the Issuer can begin announcing the Initial Prospectus and Prospectus and be included in the Initial Prospectus and Prospectus. (3) Members of the Sharia Supervisory Board or members of the Sharia Expert Team as referred to in paragraph (1) must possess an ASPM license as regulated in the Financial Services Authority Regulation concerning Capital Market Sharia Experts.
The Registration Statement in the context of a Public Offering of Sukuk must follow the legislation in the Capital Market sector regulating Registration Statements, Public Offerings, and other related regulations, as well as this Financial Services Authority Regulation.
The Registration Statement in the context of a Public Offering of Sukuk by the Issuer must be accompanied by additional documents as follows:
a. the Sukuk rating result as referred to in the legislation in the Capital Market sector regulating the Rating of Debt Nature Securities and/or Sukuk; b. the Sukuk Trust Deed;
c. the Sharia Contract used in the issuance of Sukuk;
d. a statement letter from the Issuer stating that:
The Prospectus in the context of a Registration Statement and Public Offering of Sukuk by the Issuer as referred to in Article 7 must disclose additional information as follows:
a. the assets forming the basis of Sukuk do not contradict the Sharia Principles in the Capital Market and the Issuer guarantees that during the Sukuk period, the assets forming the basis of Sukuk will not contradict the Sharia Principles in the Capital Market; b. the type of Sharia Contract and the Sharia transaction scheme, as well as an explanation of the Sharia transaction scheme used in the issuance of Sukuk;
c. a summary of the Sharia Contract conducted by the Parties;
d. the revenue source that forms the basis for calculating profit-sharing, margin, or fee payments according to the characteristics of the Sharia Contract; e. the size of the ratio for profit-sharing, margin, or fee payments according to the characteristics of the Sharia Contract; f. the planned schedule and method for distributing and/or paying profit-sharing, margin, or fee payments according to the characteristics of the Sharia Contract; g. the Sukuk rating result; h. the plan for the use of proceeds from the Sukuk issuance according to the characteristics of the Sharia Contract;
i. the source of funds used to make profit-sharing, margin, or fee payments according to the characteristics of the Sharia Contract;
j. guarantees including at least the type, value, and ownership status (if any); k. replacement of the assets forming the basis of Sukuk if events occur causing their value to no longer match the value of the issued Sukuk (if required according to the characteristics of the Sharia Contract);
l. conditions and terms in the event the Issuer will change the type of Sharia Contract, content of the Sharia Contract, and/or the assets forming the basis of Sukuk;
m. provisions in the event the Issuer fails to meet its obligations; n. handling mechanisms in the event the Issuer fails to meet its obligations; o. provisions regarding sanctions related to the non-fulfillment of obligations in the trust deed; and p. a statement of Sharia compliance for the Sukuk in the Public Offering from the Issuer's Sharia Supervisory Board or the Sharia Expert Team.
Issuers must present Audited Financial Reports for the last 2 (two) years in the Prospectus, in the event that the Issuer conducting the Public Offering of Sukuk has an obligation to submit periodic financial reports.
(1) Sukuk ceases to be a Sharia Security if the following conditions occur:
a. it no longer has assets forming the basis of Sukuk; and/or b. there is a change in the type of Sharia Contract, content of the Sharia Contract, and/or assets forming the basis of Sukuk, which causes a contradiction with the Sharia Principles in the Capital Market. (2) In the event conditions as referred to in paragraph (1) occur, Sukuk changes into debt, and the Issuer must settle the obligations for the said debt to the Sukuk holders.
Issuers must use the proceeds from the Public Offering of Sukuk to finance activities or make investments that do not contradict the Sharia Principles in the Capital Market.
(1) Issuers conducting a Public Offering of Sukuk must prepare a Sukuk Trust Deed.
(2) Provisions regarding trust deeds in the legislation in the Capital Market sector regulating general provisions and contracts for debt nature securities apply mutatis mutandis to the preparation of Sukuk Trust Deeds. (3) The Sukuk Trust Deed as referred to in paragraph (1) must contain additional provisions including:
a. an explanation of the Sharia Contract forming the basis of Sukuk; b. an explanation of the assets forming the basis of Sukuk;
c. the use of proceeds from the Sukuk issuance according to the characteristics of the Sharia Contract;
d. the source of funds used to make profit-sharing, margin, or fee payments according to the characteristics of the Sharia Contract; e. the size of the ratio for profit-sharing, margin, or fee payments according to the characteristics of the Sharia Contract; f. guarantees including at least the type, value, and ownership status (if any); g. the planned schedule and method for distributing and/or paying profit-sharing, margin, or fee payments according to the characteristics of the Sharia Contract; h. an explanation of the obligations of the Sukuk Trustee to take all necessary actions:
Provisions regarding the duties and responsibilities of Trustees in the legislation in the Capital Market sector regulating general provisions and contracts for debt nature securities apply mutatis mutandis to Sukuk Trustees.
(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 that violates 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) letters b, c, d, e, f, or g may be imposed with or without prior imposition of administrative sanctions in the form of a written warning as referred to in paragraph (1) letter a. (3) Administrative sanctions in the form of a fine 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) letters c, d, e, f, or g.
In addition to administrative sanctions as referred to in Article 14 paragraph (1), the Financial Services Authority may take specific actions against any party that violates 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.
(1) The obligation of members of the Sharia Supervisory Board or the Sharia Expert Team to have an ASPM license as referred to in Article 5 paragraph (3) for a period of 2 (two) years since this Financial Services Authority Regulation takes effect may be replaced by an individual who meets the requirements as referred to in Article 29 paragraph (1) of the Financial Services Authority Regulation concerning Capital Market Sharia Experts, provided that the individual reports to the Financial Services Authority no later than 6 (six) months since the Financial Services Authority Regulation concerning Capital Market Sharia Experts takes effect. (2) Individuals who have submitted reports to the Financial Services Authority as referred to in paragraph (1) may become members of the Sharia Supervisory Board or members of the Sharia Expert Team even without possessing an ASPM license as referred to in Article 5 paragraph (3) for a maximum of 2 (two) years since the Financial Services Authority Regulation concerning Capital Market Sharia Experts takes effect.
Registration Statements that have been accepted by the Financial Services Authority before this Financial Services Authority Regulation takes effect but have not yet become effective shall continue to follow Regulation Number IX.A.13, Appendix of the Decision of the Chairman of the Capital Market and Financial Institution Supervisory Board Number: KEP-181/BL/2009 dated June 30, 2009 concerning the Issuance of Sharia Securities.
At the time this Financial Services Authority Regulation takes effect, item 3 of Regulation Number IX.A.13, Appendix of the Decision of the Chairman of the Capital Market and Financial Institution Supervisory Board Number: KEP-181/BL/2009 dated June 30, 2009 concerning the Issuance of Sharia Securities is repealed and declared invalid.
This Financial Services Authority Regulation takes effect on the date of its enactment.
To ensure that everyone knows it, order the enactment of this Financial Services Authority Regulation by placing it in the State Gazette of the Republic of Indonesia.
Established in Jakarta on November 3, 2015
CHAIRMAN OF THE COMMISSIONERS
FINANCIAL SERVICES AUTHORITY,
s.d.
MULIAMAN D. HADAD
Enacted in Jakarta on November 10, 2015
MINISTER OF LAW AND HUMAN RIGHTS
REPUBLIC OF INDONESIA,
s.d.
YASONNA H. LAOLY
STATE GAZETTE OF THE REPUBLIC OF INDONESIA YEAR 2015 NUMBER 269
A copy in accordance with the original
Legal Director
Department of Law
s.d.
Sudarmaji
In order to develop the Sharia Capital Market to grow stably and sustainably, the development of adequate market infrastructure is required. One important infrastructure is the availability of clear, understandable, and applicable regulations so that the regulations become market-friendly. Furthermore, given that Sharia Securities have special characteristics, appropriate regulations are needed according to the characteristics of each type of Security.
The dynamic development of the Sharia Capital Market requires refinement of Regulation Number IX.A.13, Appendix of the Decision of the Chairman of the Capital Market and Financial Institution Supervisory Board Number: KEP-181/BL/2009 dated June 30, 2009 concerning the Issuance of Sharia Securities, given that the regulation regulates the issuance of various types of Sharia Securities. Seeing this condition, specific provisions are needed that are appropriate for each type of Sharia Security. This is in line with common practice and international standards. This Financial Services Authority Regulation is one of 5 (five) regulations derived from Regulation Number IX.A.13, Appendix of the Decision of the Chairman of the Capital Market and Financial Institution Supervisory Board Number: KEP-181/BL/2009 dated June 30, 2009 concerning the Issuance of Sharia Securities but specifically regulates the issuance of Sukuk while refining existing provisions in Regulation Number IX.A.13.
The main points of refining the Sukuk issuance regulations include refining the definition of Sukuk, regulating assets or business activities that form the basis of Sukuk and the issuance of Sukuk (underlying asset), regulating the trust deed, regulating the role of the Sharia Supervisory Board or Sharia Expert Team in the issuance of Sukuk, and simplifying the Registration Statement documents for the Public Offering of Sukuk.
Clear enough.
What is meant by "assets forming the basis of Sukuk" are assets that form the basis of the issuance of Sukuk as well as during the life of the Sukuk. Examples of assets that contradict the Sharia Principles in the Capital Market are goods/services/intangible assets related to activities:
a. gambling and games classified as gambling; b. ribawi financial services;
c. risk sales containing elements of uncertainty (gharar) and/or gambling (maisir); and
d. producing, distributing, trading, and/or providing among others:
Clear enough.
Clear enough.
Paragraph (1)
In the event the Issuer has a Sharia Supervisory Board, the statement of Sharia compliance for the Sukuk issued by the Issuer can be issued by the Issuer's Sharia Supervisory Board. In the event the Issuer does not have a Sharia Supervisory Board, the statement of Sharia compliance for the Sukuk in the Public Offering is conducted by the Sharia Expert Team appointed by the Issuer.
Paragraph (2)
What is meant by Prospectus is the Prospectus as regulated in the Law concerning the Capital Market.
What is meant by Initial Prospectus is the Initial Prospectus as regulated in the legislation in the Capital Market sector regulating the Initial Prospectus.
What is meant by Short Prospectus is the Short Prospectus as regulated in the legislation in the Capital Market sector regulating the Short Prospectus in the context of a Public Offering. At the time this Financial Services Authority Regulation takes effect, the legislation in the Capital Market sector regulating the Initial Prospectus is Regulation Number IX.A.8, Appendix of the Decision of the Chairman of the Capital Market Supervisory Board Number: KEP-41/PM/2000 dated October 27, 2000 concerning the Amendment of Regulation Number IX.A.8 concerning Initial Prospectus and Info Memo. At the time this Financial Services Authority Regulation takes effect, the legislation in the Capital Market sector regulating the Short Prospectus is Regulation Number IX.C.3, Appendix of the Decision of the Chairman of the Capital Market Supervisory Board Number: KEP-43/PM/2000 dated October 27, 2000 concerning the Amendment of Regulation Number IX.C.3 concerning Guidelines on the Form and Content of Short Prospectus in the Context of a Public Offering.
Paragraph (3)
Clear enough.
At the time this Financial Services Authority Regulation takes effect, the legislation in the Capital Market sector regulating Registration Statements and Public Offerings includes among others as follows:
a. Regulation Number IX.A.3, Appendix of the Decision of the Chairman of the Capital Market Supervisory Board Number: KEP-44/PM/1996 dated January 17, 1996 concerning Procedures for Requesting Changes and/or Additional Information Over the Registration Statement; b. Regulation Number IX.C.2, Appendix of the Decision of the Chairman of the Capital Market Supervisory Board Number: KEP-51/PM/1996 dated January 17, 1996 concerning Guidelines on the Form and Content of Prospectus in the Context of a Public Offering;
c. Regulation Number IX.A.8, Appendix of the Decision of the Chairman of the Capital Market Supervisory Board Number: KEP-41/PM/2000 dated October 27, 2000 concerning Initial Prospectus and Info Memo;
d. Regulation Number IX.C.1, Appendix of the Decision of the Chairman of the Capital Market Supervisory Board Number: KEP-42/PM/2000 dated October 27, 2000 concerning Guidelines on the Form and Content of Registration Statement in the Context of a Public Offering; e. Regulation Number IX.C.3, Appendix of the Decision of the Chairman of the Capital Market Supervisory Board Number: KEP-43/PM/2000 dated October 27, 2000 concerning Guidelines on the Form and Content of Short Prospectus in the Context of a Public Offering; f. Regulation Number IX.A.6, Appendix of the Decision of the Chairman of the Capital Market Supervisory Board Number: KEP-06/PM/2001 dated March 8, 2001 concerning Restrictions on Shares Issued Before the Public Offering; g. Regulation Number IX.A.2, Appendix of the Decision of the Chairman of the Capital Market and Financial Institution Supervisory Board Number: KEP-122/BL/2009 dated May 29, 2009 concerning Procedures for Registration in the Context of a Public Offering;
h. Regulation Number IX.A.1, Annex of the Decision of the Head of the Capital Market Supervisory Board and Financial Institutions Number: KEP-690/BL/2011 dated December 30, 2011 concerning General Provisions on Submission of Registration Statements;
i. Regulation Number IX.A.7, Annex of the Decision of the Head of the Capital Market Supervisory Board and Financial Institutions Number: KEP-691/BL/2011 dated December 30, 2011 concerning Ordering and Allocation of Securities in Public Offerings; and
j. Financial Services Authority Regulation Number 36/POJK.04/2014 concerning Continuous Offering of Debt-like Securities and/or Sukuk.
Article 7
Letter a
At the time this Financial Services Authority Regulation comes into force, the legislation in the Capital Market sector governing the rating of debt-like securities and/or Sukuk is Regulation Number IX.C.11 Annex of the Decision of the Head of the Capital Market Supervisory Board Number KEP-712/BL/2012 dated December 26, 2012 concerning Rating of Debt-like Securities and/or Sukuk.
Letter b
At the time this Financial Services Authority Regulation comes into force, the legislation in the Capital Market sector governing sukuk trustee agreements is Regulation Number VI.C.4, Annex of the Decision of the Head of the Capital Market Supervisory Board and Financial Institutions Number KEP-412/BL/2010 dated September 6, 2010 concerning General Provisions and Trustee Contracts for Debt-like Securities.
Letter c
Types of Sharia Agreements in accordance with legislation in the Capital Market sector governing the agreements used in the issuance of Sharia securities in the Capital Market are Ijarah, Istishna, Kafalah, Mudharabah, Musyarakah, Wakalah, and other agreements that do not conflict with Sharia Principles in the Capital Market.
Letter d
It is clear enough.
Letter e
It is clear enough.
Letter f
It is clear enough.
Letter g
It is clear enough.
Letter h
It is clear enough.
Article 8
Letter a
It is clear enough.
Letter b
It is clear enough.
Letter c
It is clear enough.
Letter d
It is clear enough.
Letter e
It is clear enough.
Letter f
It is clear enough.
Letter g
It is clear enough.
Letter h
It is clear enough.
Letter i
It is clear enough.
Letter j
It is clear enough.
Letter k
It is clear enough.
Letter l
It is clear enough.
Letter m
What is meant by "failure to fulfill its obligations" is failing to fulfill financial obligations and/or failing to comply with Sharia Principles in the Capital Market.
Letter n
It is clear enough.
Letter o
It is clear enough.
Letter p
It is clear enough.
Article 9
It is clear enough.
Article 10
It is clear enough.
Article 11
It is clear enough.
Article 12
Paragraph (1)
It is clear enough.
Paragraph (2)
At the time this Financial Services Authority Regulation comes into force, the legislation in the Capital Market sector governing general provisions and trustee contracts for debt-like securities is Regulation Number VI.C.4, Annex of the Decision of the Head of the Capital Market Supervisory Board Number Kep-412/BL/2010 dated September 6, 2010 concerning General Provisions and Trustee Contracts for Debt-like Securities.
Paragraph (3)
Letter a
It is clear enough.
Letter b
The description of assets serving as the basis for Sukuk consists at least of the type/form of assets, location of assets, ownership status of assets, asset status (as collateral or not) and accompanying legal and economic implications (if any), as well as the value of assets based on valuation results from the Appraiser.
Letter c
It is clear enough.
Letter d
It is clear enough.
Letter e
It is clear enough.
Letter f
It is clear enough.
Letter g
It is clear enough.
Letter h
Number 1
It is clear enough.
Number 2
It is clear enough.
Number 3
What is meant by "violation of compliance with the application of Sharia Principles in the Capital Market" includes among others violations of Sharia Agreements and/or assets serving as the basis for Sukuk. What is meant by "violation of obligations in Sharia Agreements and/or trustee agreements (breach of contract)" includes among others the Issuer failing to pay profit shares, margins, service fees, or the principal value of Sukuk in accordance with the agreement.
Number 4
It is clear enough.
Letter i
It is clear enough.
Letter j
It is clear enough.
Letter k
What is meant by "its value no longer corresponds to the value of the issued Sukuk" is that the value of the object serving as the basis for Sukuk has changed and is insufficient to be used as a basis for paying profit shares, margins, service fees (fee), or the principal value of Sukuk.
Letter l
Number 1
It is clear enough.
Number 2
An example mechanism for fulfilling the rights of Sukuk holders who disagree with the aforementioned changes is the repurchase of Sukuk or cancellation of the aforementioned changes.
Number 3
The Sharia compliance statement from the Issuer's Sharia Supervisory Board or Sharia Expert Team is obtained prior to the implementation of the General Meeting of Sukuk Holders (RUP Sukuk).
Letter m
What is meant by "failure to fulfill its obligations" is failing to fulfill financial obligations and/or compliance with Sharia Principles in the Capital Market.
Letter n
It is clear enough.
Letter o
It is clear enough.
Article 13
At the time this Financial Services Authority Regulation comes into force, the legislation in the Capital Market sector governing general provisions and trustee contracts for debt-like securities is Regulation Number VI.C.4 Annex of the Decision of the Capital Market Supervisory Board Number KEP-412/BL/2010 dated September 6, 2010 concerning General Provisions and Trustee Contracts for Debt-like Securities.
Article 14
It is clear enough.
Article 15
What is meant by "specific actions" includes among others:
a. postponement of granting effectiveness statements, for example, effectiveness statements for business mergers, business consolidations; and b. postponement of granting statements from the Financial Services Authority that there are no further responses to documents submitted to the Financial Services Authority in the context of adding capital with Preemptive Rights for Open Companies.
Article 16
It is clear enough.
Article 17
It is clear enough.
Article 18
It is clear enough.
Article 19
It is clear enough.
Article 20
It is clear enough.
SUPPLEMENT TO THE STATE GAZETTE OF THE REPUBLIC OF INDONESIA NUMBER 5758
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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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