"If you owe your bank a hundred pounds, you have a problem. But if you owe a million it has."
(John Maynard Keynes - British Economist and founder of the Keynesian School)
Introduction
Keynes' brilliant statement above can accurately describes one of the most crucial problems of international financing activities, i.e., overconfidence in giving loans to companies from emerging markets, which is highly risked, tends to create problems rather than improvements. Problems not only to the financial institutions involving in such financing activities but also to the debtors, as in the end both of them are facing losses, not profits.
This overconfidence, combined with a lack of supervision from the Indonesian authorities can be considered as one of the main factors of the financial crisis in 1997. In that fateful tragedy, an already huge amount of foreign debts which were borrowed recklessly by Indonesian private companies suddenly turned into an endless pool of debt where Indonesian companies were drowning frantically due to the crisis in Rupiah's value.
Some people blame the speculators for creating that disaster, but those speculators are only a part of many factors that formed the crisis back in 1997. Another crucial factor which is also very important is the management of Indonesian private foreign borrowings. Without proper supervision and good risk management, foreign borrowings might be troublesome to the monetary policy of Indonesia and also the sustainability of business activities. Considering the fact that the amount of Indonesian global debt offering transactions are increasing significantly, it might be worthwhile to see the relevant issues that we may face and the policy that should be taken to prevent or solve them.
Why Choose Foreign Debts?
There are many reasons for raising foreign debts, but I know one obvious reason and that is the lower interest rate. As you may be aware, there is a big discrepancy of interest rate between the US Fed and Bank Indonesia and therefore, to certain extent, obtaining foreign borrowings is more commercially acceptable to Indonesian companies since they can get a lower interest rate.
Of course, if there is no financial crisis, this formula might work. Unfortunately, when the Rupiah's value fell into the depth of hell in 1997, the disaster is inevitable. By having too many debts in foreign currencies and without having any hedging mechanism, the majority of Indonesian companies fall into bankruptcy when they realize that their debts have increased tremendously in correlation with the fall of Rupiah's rate.
Hiding Behind the Scene: Old Regulations on Foreign Borrowings
It is ironic that many Indonesian private companies were crushed in a crisis caused by unmanageable foreign borrowings while the Indonesian Government has already been dealing with foreign borrowings for a long time. It was in 1972, when the President of Indonesia issued Presidential Decree No. 59/1972 on Foreign Commercial Borrowings ("PD 59"), an archaic regulation which has been almost totally forgotten by everyone though it is still a full binding regulation.
Under PD 59, certain restrictions were imposed upon Indonesian companies, such as:
To cut it short, while the nominal amount of the foreign debts will not change, the real amount may change in correlation with the progress of Rupiah's value. If the Rupiah's rate increase, the companies are lucky, but if not, they will face some serious problems. Imagine if a company has too many debts in foreign denomination and at the same time Rupiah's rate falls drastically. With an increase in the actual amount of the debts and without significant additional income, could the company still afford to pay its debts? I don't think so. And if there are too many companies having the same problem, what would be the result? A financial crisis!
Therefore, in my opinion, foreign borrowings must be supervised, so that the risk can be maintained. Of course there is a question on how such supervision can actually prevent the crisis? Further, how should the Government balances the policy to maintain the flexibility for those private companies in raising foreign debts.
Current Condition: Not Much Improvement
Interestingly, there isn't much improvement since the fateful 1997 crisis. As I've seen during my practice, Indonesian companies are still happy to pursue foreign debts, whether through bilateral or syndicated loan agreements arranged by foreign commercial banks or issuing notes to international investors arranged by investment bankers. Submitting reports to the PKLN Team, the Ministry of Finance and Bank Indonesia for Indonesian private companies or obtaining PKLN approval for state owned companies before getting their foreign debts have become administrative obligations which have no value other than to secure a clean legal opinion from lawyers.
This is indeed a sad news, yet inevitable. Due to the lack of implementing policy, the PKLN Team has forgotten their own task, and I have a solid evidence for this. In one transaction, we were asked to give a presentation to members of the PKLN team on the roles and authorities of the PKLN Team relating to PKLN approval. I must say that this is quite hilarious.
That's why, it does make sense when I heard a rumor that the Government intends to revoke the 1972 and 1991 regulations. Why preserving regulations which don't have any efficacy, regulations which only create administrative problems for private companies and state owned companies when they are trying to raise foreign debts?
True, we cannot maintain ineffective regulations, but in the case of foreign debts, I believe that the Government is missing the main point. Such administrative measures were created to protect the interest of those Indonesian companies! Rather than revoking those regulations, why not improving their implementation? But I guess, the Government may have their own thoughts, and I assume that this is related to the separation of tasks between the Government, as the guardian of Indonesian fiscal policy, and Bank Indonesia, as the guardian of Indonesian monetary policy.
Latest Regulations on Foreign Borrowings
After going through an enduring period, Bank Indonesia issued Bank Indonesia Regulation No. 10/7/PBI/2008 on Foreign Borrowings of Indonesian Non-Bank Companies on 19 February 2008 which was further followed up by an implementing regulation in the form of a circular letter on 22 December 2008. Basically, this regulation requires Indonesian non-bank companies to submit periodical reports (annually or semi annually) concerning their financial viability (this include the submission of a report on their financial ratio and their financial statement) and risk management analysis before they obtain foreign borrowings in any form whatsoever. The regulation also requires these Indonesian non-bank companies to obtain ratings from local or international rating agencies for each debt that they would obtain. Those who are interested to see the form of the report can see it here.
The purpose of this regulation is to ensure that Indonesian companies have sufficient consideration and a proper risk analysis in determining whether they should pursue loans from foreign parties, whether they are banks, other financial institutions, or bonds investors. Bank Indonesia states in this regulation that foreign borrowing is one of the major factors which may affect the Indonesian monetary stability and the sustainability of the Indonesian economic development, and therefore proper supervision is needed.
In my opinion, this regulation is quite balanced. I don't think that it can significantly affect the flexibility of Indonesian private companies in raising foreign debts. On the other hand, the regulation might provide various useful guidelines for the companies in conducting proper analysis before they get those foreign debts. In other words, this regulation is a further advancement to the old 1972 and 1991 regulations which only required submission of simple reports.
The regulation also imposes sanctions in the form of warning letters and announcements to the public (domestic or international). This is a good move from Bank Indonesia and the sanction should be more effective than any other penal sanctions, since reputation is very valuable in the market, and no companies dare to risk their good reputation for unclear benefits. It should be noted though that the sanctions will be effective on 1 January 2010.
I have high hopes on the further implementation of this regulation. Getting many global debt offering and other international financing deals are good for lawyer's business. However, it is also important to ensure that we are not advancing these companies toward doom because of reckless debt policy. Bank Indonesia should be strict when it deals with this reporting obligation to ensure the compliance of the Indonesian companies. After all, these regulations are made to protect their interest in the long term and the regulation can be a good nudge for them.
Introduction
Keynes' brilliant statement above can accurately describes one of the most crucial problems of international financing activities, i.e., overconfidence in giving loans to companies from emerging markets, which is highly risked, tends to create problems rather than improvements. Problems not only to the financial institutions involving in such financing activities but also to the debtors, as in the end both of them are facing losses, not profits.
This overconfidence, combined with a lack of supervision from the Indonesian authorities can be considered as one of the main factors of the financial crisis in 1997. In that fateful tragedy, an already huge amount of foreign debts which were borrowed recklessly by Indonesian private companies suddenly turned into an endless pool of debt where Indonesian companies were drowning frantically due to the crisis in Rupiah's value.
Some people blame the speculators for creating that disaster, but those speculators are only a part of many factors that formed the crisis back in 1997. Another crucial factor which is also very important is the management of Indonesian private foreign borrowings. Without proper supervision and good risk management, foreign borrowings might be troublesome to the monetary policy of Indonesia and also the sustainability of business activities. Considering the fact that the amount of Indonesian global debt offering transactions are increasing significantly, it might be worthwhile to see the relevant issues that we may face and the policy that should be taken to prevent or solve them.
Why Choose Foreign Debts?
There are many reasons for raising foreign debts, but I know one obvious reason and that is the lower interest rate. As you may be aware, there is a big discrepancy of interest rate between the US Fed and Bank Indonesia and therefore, to certain extent, obtaining foreign borrowings is more commercially acceptable to Indonesian companies since they can get a lower interest rate.
Of course, if there is no financial crisis, this formula might work. Unfortunately, when the Rupiah's value fell into the depth of hell in 1997, the disaster is inevitable. By having too many debts in foreign currencies and without having any hedging mechanism, the majority of Indonesian companies fall into bankruptcy when they realize that their debts have increased tremendously in correlation with the fall of Rupiah's rate.
Hiding Behind the Scene: Old Regulations on Foreign Borrowings
It is ironic that many Indonesian private companies were crushed in a crisis caused by unmanageable foreign borrowings while the Indonesian Government has already been dealing with foreign borrowings for a long time. It was in 1972, when the President of Indonesia issued Presidential Decree No. 59/1972 on Foreign Commercial Borrowings ("PD 59"), an archaic regulation which has been almost totally forgotten by everyone though it is still a full binding regulation.
Under PD 59, certain restrictions were imposed upon Indonesian companies, such as:
- in case the borrowings involve the Government's guarantee, state owned companies are restricted to receive foreign borrowings without prior approval from the Minister of Finance (later on, the minister approval will be replaced by the approval of the Coordinating Minister of Economy, as the head of the Foreign Commercial Borrowing Team ("PKLN Team"), and the state owned companies are required to obtain prior approval from the PKLN Team before receiving any foreign debts, regardless of whether the Government acts as a guarantor or not to such foreign debts); and
- private companies must report their foreign borrowings in a periodical basis to the Ministry of Finance and Bank Indonesia.
To cut it short, while the nominal amount of the foreign debts will not change, the real amount may change in correlation with the progress of Rupiah's value. If the Rupiah's rate increase, the companies are lucky, but if not, they will face some serious problems. Imagine if a company has too many debts in foreign denomination and at the same time Rupiah's rate falls drastically. With an increase in the actual amount of the debts and without significant additional income, could the company still afford to pay its debts? I don't think so. And if there are too many companies having the same problem, what would be the result? A financial crisis!
Therefore, in my opinion, foreign borrowings must be supervised, so that the risk can be maintained. Of course there is a question on how such supervision can actually prevent the crisis? Further, how should the Government balances the policy to maintain the flexibility for those private companies in raising foreign debts.
Current Condition: Not Much Improvement
Interestingly, there isn't much improvement since the fateful 1997 crisis. As I've seen during my practice, Indonesian companies are still happy to pursue foreign debts, whether through bilateral or syndicated loan agreements arranged by foreign commercial banks or issuing notes to international investors arranged by investment bankers. Submitting reports to the PKLN Team, the Ministry of Finance and Bank Indonesia for Indonesian private companies or obtaining PKLN approval for state owned companies before getting their foreign debts have become administrative obligations which have no value other than to secure a clean legal opinion from lawyers.
This is indeed a sad news, yet inevitable. Due to the lack of implementing policy, the PKLN Team has forgotten their own task, and I have a solid evidence for this. In one transaction, we were asked to give a presentation to members of the PKLN team on the roles and authorities of the PKLN Team relating to PKLN approval. I must say that this is quite hilarious.
That's why, it does make sense when I heard a rumor that the Government intends to revoke the 1972 and 1991 regulations. Why preserving regulations which don't have any efficacy, regulations which only create administrative problems for private companies and state owned companies when they are trying to raise foreign debts?
True, we cannot maintain ineffective regulations, but in the case of foreign debts, I believe that the Government is missing the main point. Such administrative measures were created to protect the interest of those Indonesian companies! Rather than revoking those regulations, why not improving their implementation? But I guess, the Government may have their own thoughts, and I assume that this is related to the separation of tasks between the Government, as the guardian of Indonesian fiscal policy, and Bank Indonesia, as the guardian of Indonesian monetary policy.
Latest Regulations on Foreign Borrowings
After going through an enduring period, Bank Indonesia issued Bank Indonesia Regulation No. 10/7/PBI/2008 on Foreign Borrowings of Indonesian Non-Bank Companies on 19 February 2008 which was further followed up by an implementing regulation in the form of a circular letter on 22 December 2008. Basically, this regulation requires Indonesian non-bank companies to submit periodical reports (annually or semi annually) concerning their financial viability (this include the submission of a report on their financial ratio and their financial statement) and risk management analysis before they obtain foreign borrowings in any form whatsoever. The regulation also requires these Indonesian non-bank companies to obtain ratings from local or international rating agencies for each debt that they would obtain. Those who are interested to see the form of the report can see it here.
The purpose of this regulation is to ensure that Indonesian companies have sufficient consideration and a proper risk analysis in determining whether they should pursue loans from foreign parties, whether they are banks, other financial institutions, or bonds investors. Bank Indonesia states in this regulation that foreign borrowing is one of the major factors which may affect the Indonesian monetary stability and the sustainability of the Indonesian economic development, and therefore proper supervision is needed.
In my opinion, this regulation is quite balanced. I don't think that it can significantly affect the flexibility of Indonesian private companies in raising foreign debts. On the other hand, the regulation might provide various useful guidelines for the companies in conducting proper analysis before they get those foreign debts. In other words, this regulation is a further advancement to the old 1972 and 1991 regulations which only required submission of simple reports.
The regulation also imposes sanctions in the form of warning letters and announcements to the public (domestic or international). This is a good move from Bank Indonesia and the sanction should be more effective than any other penal sanctions, since reputation is very valuable in the market, and no companies dare to risk their good reputation for unclear benefits. It should be noted though that the sanctions will be effective on 1 January 2010.
I have high hopes on the further implementation of this regulation. Getting many global debt offering and other international financing deals are good for lawyer's business. However, it is also important to ensure that we are not advancing these companies toward doom because of reckless debt policy. Bank Indonesia should be strict when it deals with this reporting obligation to ensure the compliance of the Indonesian companies. After all, these regulations are made to protect their interest in the long term and the regulation can be a good nudge for them.
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