Indonesia

Introduction

Franchising has become one of the most prominent business models in recent years, particularly in sectors such as food & beverage (F&B), education, fashion and modern lifestyle. The Indonesian franchise regime began in 1997, but has changed several times since then, the latest being under Minister of Trade Regulation No. 53/M-DAG/PER/8/2012 on the Implementation of Franchises as amended by Minister of Trade Regulation No. 57/M-DAG/PER/9/2014 (“Regulation 53”).

Controversy followed the issuance of Regulation 53 and many franchise players raised complaints, mainly with regard to the onerous 80-20 obligation (ie, the minimum local component must be 80%) and the limitation on the number of outlets that each franchisee could own in the F&B and modern store business sectors, as set out under Minister of Trade Regulation No. 07/M-DAG/PER/2/2013 on The Development of Partnerships in the Franchising of Food and Beverages Services Business Activities and Minister of Trade Regulation No. 68/M-DAG/PER/10/2012 on Modern Store Franchising.

A new franchise regulation was issued on 3 September 2019 and came into force on 4 September 2019. Minister of Trade Regulation No. 71 of 2019 on the Implementation of Franchises (“Regulation 71”), which was introduced with the intention of simplifying the registration process and to facilitating investors has replaced all of the previous ministerial-level franchise regulations referred to above, as well as Regulation No. 60/M-DAG/ PER/9/2013 on The Obligation to Use a Franchise Logo.

Regulation 71
Please find below some highlights of Regulation 71:

  1. Direct or Indirect Control Relationship
    Since Regulation 53 has been revoked, the restriction regarding the direct or indirect control relationship between franchisor and franchisee is no longer valid. This means the franchisor will be able to appoint its subsidiary or affiliate to be its franchisee or even to hold a share in its franchisee entity depending on whether the franchise business is open for foreign investment.
  2. Local Sourcing Requirements
    Unlike Regulation 53, which explicitly required the use of at least 80% domestic production for materials, business equipment and trade goods in a franchised business, Regulation 71 is more relaxed as it only requires franchisors to prioritize the use of domestic goods and services as long they meet (i) the standards of the franchisor, and (ii) the requirements under the relevant technical/sectoral regulations (if applicable). However, information about the use of local products is still required in the Annual Report and it is unclear how the “priority” requirement will be interpreted by the authorities.
  3. Franchise Registration Certificates – STPW
    Under Regulation 71, STPWs are valid for as long as the franchisor and franchisee remain in business so this new regulation does not recognize extensions/renewals. This will benefit the franchising business compared to the old regime which only provided for a franchise period of 5 years, albeit this was renewable. Meanwhile, existing STPWs issued under the previous franchise regulation (Regulation 53) remain valid until their expiry dates, after which a new application for an STPW must be submitted.However, the STPW will be deemed invalid if, among other things, (i) the franchisor or franchisee ceases doing business, or (ii) the franchise agreement expires, or (iii) if the pending trademark application is not approved by the Directorate General of Intellectual Property or the trademark registration expires (or is not renewed).
  4. 5 Years’ Experience
    Regulation 71 requires a franchise to have proven to be a profitable business, according to the experience of the franchisor over a period of at least 5 years. This means that the franchisor (or master franchisee) should wait for at least 5 years in order to be able to offer a franchise (or subfranchise) of its business to another party. Assuming this provision is implemented as is, it will likely be problematic, both for local and international franchisors.
  5. Master Franchisee
    The requirement to appoint one master franchisee under Regulation 53 has been removed. A franchisor can now appoint a number of franchisees in Indonesia.
  6. Annual Report
    The deadline for submitting the annual report has been extended by 3 months to the end of June of each year (compared to the end of March under Regulation 53). In addition, under Regulation 71, the Ministry may conduct a site inspection of the location of the franchise business, and may question the information provided in the annual report, in particular with regard to the use of local products. The sanctions for failure to submit the annual report remain the same (from written warnings up to revocation of the business license, to be applied progressively).
  7. Self-Owned Outlets
    Previously, franchisors or franchisees in the F&B sector were only allowed to establish up to 250 self-owned outlets. Those engaged in the modern store business were permitted to operate up to 150 company-owned units. Since Regulation 71 revokes the relevant regulations, the restrictions on self-owned outlets no longer apply.
  8. Clean Break Letters
    The clean break requirement was provided in Regulation 53. Since this regulation has been revoked and Regulation 71 is silent on this issue, it would appear that the clean break is no longer required. However, it remains to be seen whether a clean break letter will still be required on deregistration of an STPW.

Conclusion

Although questions remain concerning Regulation 71, it does appear that there has been some relaxation in Indonesia’s franchising requirements compared to the previous regulatory regime, apart that is from the new 5 years’ profitable experience requirement, which will likely be an unexpectedly onerous imposition in many cases. We do recommend that detailed advice on the legal franchising requirements as well as specific comments on common franchising practice (and the possible alternative business models to franchising which may be available) should be sought before engaging in any franchising activities in Indonesia.

*****

M&T Advisory is an email publication prepared by the Indonesian law firm, Makarim & Taira S. It is only intended to inform generally on the topics covered and should not be treated as a legal advice or relied upon when making investment or business decisions. Should you have any questions on any matter contained in M&T Advisory, or other comments generally, please contact your usual M&T contact or advisories@makarim.com.

Contacts:

Reagan Roy Teguh – reagan.teguh@makarim.com
Mira Ayu Lestari – mira.ayu@makarim.com
Norma Mutalib – norma.mutalib@makarim.com
Lia Alizia – lia.alizia@makarim.com

Related Articles by Firm
Domestic non-deliverable forwards under Indonesian law
It is hoped that DNDF transactions in the market will provide confidence to business actors regarding owning assets in rupiah.
Indonesia: The Omnibus Law on Job Creation
What the bill has to offer ...
Indonesia: New regulation on the procurement of goods and services in the state-owned enterprises sector
On 12 December 2019, the new Minister of State-Owned Enterprises, Erick Thohir, issued new Ministry of State Owned Enterprises Regulation ...
Indonesian government simplifies outsourcing requirements
But users and providers still need to be aware of their restrictive and far-reaching breadth and scope.
Regulation on integrated mortgage services through electronic systems
The service aims to improve disclosure, punctuality, simplicity and affordability.
New amendment to Indonesia’s KPK Law
The main purpose of the amendments is to change the corruption eradication paradigm from prosecution measure to prevention measure.
Aircraft finance and leasing in Indonesia
The Indonesian aviation sector has grown rapidly over the past few years. Due to this, airlines and lessors have been capitalising on the general availability of diverse sources of funding ...
New KPPU regulation on merger filings
Simplification yet some clarity is needed.
Reminder – Requirement in the OSS System for companies to adjust their Business Classification Code
This joint notice requires limited liability companies to adjust their purpose and objectives.
Requirement to use the Indonesian language is regulated further
Indonesia has finally issued an implementing regulation of the Language Law.
BKPM amends its regulation on the procedures for licence and investment facilities
Divestment and foreign directors and commissioners’ requirements.
Indonesia's new regulation on e-litigation
The Supreme Court aims to have e-litigation operating in all courts of first instance by early 2020.
Latest amendment to the procedure for the resolution of small claims lawsuit
The new procedure provides more optimal and effective regulation than the previous regulation.
New government regulation on organisation of electronic systems and transactions
The Government of Indonesia finally issued Government Regulation No. 71 of 2019 on Organisation of Electronic Systems and Transactions on 4 October 2019, gaining momentum as the country sees the rise of ‘unicorns’ and President Joko Widodo boasting about the country’s digital economy ...
New decree on foreign workers in Indonesia
The Ministry of Manpower has issued a codified list of businesses in which foreign employees may be employed.
Regulating the sale and provision of digital content through mobile cellular networks
Regulations on digital content are becoming more relevant as investor interest in the Indonesian market rises.
Joko Widodo re-elected: How will it affect doing business in Indonesia?
In his election campaign, Jokowi declared nine missions ...
Indonesia: New regulation on Foreign Construction Representative Offices and Construction Foreign Investment Companies
On 13 June 2019, the Minister of Public Works and Public Housing issued Regulation No. 09/PRT/M/2019 on Guidelines on Licensing Services for Foreign Construction Business Entities ...
Settlement of disharmony between laws and regulations through mediation
On February 12, 2019, the Minister of Laws and Human Rights (MOLHR) issued Regulation No. 2 of 2019 on The Settlement of Disharmony between Laws and Regulations through Mediation (MOLHR Reg 2/2019), which came into effect on February 14, 2019 ...
Bank Indonesia issues a new regulation on the reporting of foreign exchange flows
Bank Indonesia (BI) recently issued Regulation No. 21/2/PBI/2019 on the Reporting of Foreign Exchange Flow Activities ...
Related Articles
"You can’t manage what you don’t measure"
….so said a General Counsel in a recent discussion we had about the use of data in their legal department.
Electronic signatures and virtual meetings — the Bermuda, British Virgin Islands and Cayman Islands legal framework
The introduction globally of travel restrictions and containment measures arising from Covid-19 has significantly disrupted business, including creating logistical issues in closing corporate or financing transactions or holding board and shareholders’ meetings ...
Related Articles by Jurisdiction
Indonesia: New regulation on Foreign Construction Representative Offices and Construction Foreign Investment Companies
On 13 June 2019, the Minister of Public Works and Public Housing issued Regulation No. 09/PRT/M/2019 on Guidelines on Licensing Services for Foreign Construction Business Entities ...
Indonesia: Amendment to government regulation on oil and gas cost recovery
On June 15, 2017, Indonesian Government issued Government Regulation No. 27 of 2017, amending Government Regulation No. 79 of 2010 on the Recoverable Operational Costs ...
Latest Articles
"You can’t manage what you don’t measure"
….so said a General Counsel in a recent discussion we had about the use of data in their legal department.
Are you ready for the global tax reform?
A brief discussion on how MNCs should respond to the OECD’s new measures relating to Automatic Exchange of Information and Transfer Pricing issues