Innovation and digitalization in the financial sector have made it easier for investors to access various investment products (including securities issued abroad). The recent emergence of certain market participants providing access to various types of foreign-issued securities and other investment products to Indonesian investors has attracted greater attention from a consumer protection perspective.
Considering the large number of securities and other investment products offered to the public, and to enhance consumer protection for the public, the Indonesian Financial Services Authority (Otoritas Jasa Keuangan Where OJK) has now announced through a press release that Indonesian financial services companies in the capital markets industry, including Indonesian licensed securities companies, are prohibited from marketing, promoting and advertisement of any investment product not approved by the OJK (including foreign-issued securities) with limited exceptions, including authorized mutual funds whose portfolio contains qualifying foreign-issued securities products .
Key messages from the OJK press release
On July 9, 2022, the OJK issued a press release prohibiting all Indonesian financial services companies in the capital markets industry from marketing, promoting and advertising any product and service not licensed by the OJK , including securities issued abroad.
Although the press release itself does not have regulatory force, it appears to specifically target Indonesian financial services companies in the capital markets sector and could be seen as suggesting a general guideline on how OJK views financial services. securities issued abroad, offshore investment products and other investment products. which have not yet been regulated by the OJK.
As explained by the Executive Head of Capital Markets Supervision of OJK, “Investment products that are supervised by OJK include securities issued by Indonesian legal entities that have been declared effective by the OJK to be offered to the public. Other investment products such as securities issued by offshore entities, crypto assets and gold are not products licensed and supervised by the OJK”. It was further added that the marketing of foreign-issued securities in Indonesia is not yet permitted as these securities are not licensed products of OJK and may pose a considerable risk to the public.
This press release aims to prevent public misunderstandings regarding unregistered investment products and also responds to the emergence of some super integrated application platforms that also offer the purchase of securities issued abroad and other investment products presenting a considerable potential risk to the public.
In addition, the press release also prohibits any platform owned or linked to a financial services company in the capital markets industry that offers non-OJK licensed products and services from including an OJK logo or statement indicating that the products or services offered are licensed and supervised. by OJK.
The press release prohibits Indonesian financial services companies in the capital markets sector from marketing, promoting and advertising products and services not authorized by OJK. However, it does not specifically prohibit Indonesian investors from buying such securities. Further, OJK has no jurisdiction to regulate the conduct of offshore financial services companies outside of Indonesia, although careful conduct should be adopted in dealing with investors in Indonesia and Indonesian investors outside of Indonesia. We note that the prohibitions are expressed to apply to all marketing, promotion and advertising of unlicensed products, not just public offerings, so private placements (and potentially one-time transactions involving) securities issued to the relevant foreigner appear to be subject to the ban. This could be interpreted as covering structures under which Indonesian parties are offered investments in offshore bonds of various types.
OJK monitoring measures
Any violation of the above prohibitions may subject the relevant financial services firm to an order requiring, among other things, the immediate termination of the affected services and/or product offerings. In addition, since in general this may also be considered a violation of regulation/license, this financial services company may also be subject to other OJK sanctions such as fines and suspension of license and ultimately revocation. At this point, OJK seems more focused on instructing the financial services companies involved to immediately cease all marketing, promotion and advertising of products and services not authorized by OJK. The parties should also closely monitor the extent to which the OJK is prepared to impose a sanction in relation to the above.
Since OJK has confirmed that all investment products not authorized by OJK (including securities issued overseas) are prohibited from being offered, marketed and advertised by Indonesian securities companies, this may affect certain business models (e.g. cross-referencing activities and cross-border marketing) that are linked to foreign affiliated entities. Such business models may need to be reassessed. It will be interesting to see whether OJK translates the policy into a more detailed rule and to what extent OJK actively monitors such activities, noting that such conduct is often undertaken in a private capacity.