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All Journal International Journal of Social Service and Research Indonesia Law Review (ILREV) Eduvest - Journal of Universal Studies
Sumarsih, Ida
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Aerospace Engineering Computer Science & IT Decision Sciences, Operations Research & Management Economics, Econometrics & Finance Environmental Science Health Professions Languange, Linguistic, Communication & Media Law, Crime, Criminology & Criminal Justice Neuroscience Social Sciences

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Impact of Nominee Agreement on Mining Business Entities Against the Welfare of the People Sumarsih, Ida
International Journal of Social Service and Research Vol. 4 No. 03 (2024): International Journal of Social Service and Research (IJSSR)
Publisher : Ridwan Institute

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.46799/ijssr.v4i03.753

Abstract

This study delves into the regulation of foreign share ownership and the prohibition of nominee agreements in the establishment of mineral and coal mining entities in Indonesia, aiming to ensure legal certainty and promote the welfare of the people, as mandated by Article 33 paragraph (3) of the 1945 Constitution. Employing three legal theories—basic legal values (Gustav Radbruch), legal system theory (Lawrence Friedman), and the welfare state—the research method incorporates both normative juridical and empirical juridical approaches. The findings reveal that nominee agreements, though legally questionable under Article 1320 of the Civil Code, serve as a means for foreign investors to secure their interests in Indonesian mining ventures. An Environmental Analysis of Law (EAL) employing the Cost-Benefit Analysis (CBA) method indicates a positive impact on the welfare of communities in Morowali and Kutai Kartanegara regencies due to these agreements. Proposing an ius constituent approach, the study advocates for relaxed foreign ownership regulations, allowing up to 51% ownership during the initial establishment period, accompanied by a mandatory divestment to 49% after ten years of exploration. Such a policy shift obviates the need for nominee agreements, ensuring both investment security and legal clarity. Supervisory mechanisms are recommended to oversee divestment and reinvestment processes, ensuring equitable distribution of mining dividends and bolstering legal certainty in mining operations. These proposed regulatory adjustments are envisioned to foster equitable resource management, thereby advancing the welfare of the Indonesian populace, particularly in Morowali and Kutai Kartanegara regencies.
Study of Stock Ownership Nominee Agreement in Mining Business to People’s Welfare That Is Aligned for Sustainable Development Goals Sumarsih, Ida
Eduvest - Journal of Universal Studies Vol. 4 No. 3 (2024): Journal Eduvest - Journal of Universal Studies
Publisher : Green Publisher Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.59188/eduvest.v4i3.1100

Abstract

The goal for Limitation of Foreign Stock’s ownership to protect natural resources in Indonesia is not yet optimal because of the existence of nominee agreement. Which is a form of law smuggling. So natural resources that should be benefiting for Indonesia people’s welfare, in reality it is enjoyed by Foreign Investor. This research is a normatif juridical research using secondary data and doing inductive analysis. From the result of the research is concluded that law smuggling in stock ownership nominee agreement prohibition in mining field is still exist because there is no monitoring, control, field observation, evaluation and law enforcement for nominee agreement practices in mineral and coal mining up to beneficial ownership in establishment and operational of mineral and coal mining business. Therefore it is needed to make a regulation to monitor, supervise and doing law enforcement by The Energy and Mineral Resources Ministry (ESDM) through Monitoring, Conrolling, Field Observation and Evaluation System (P3LE) towards stock ownership nominee agreement practices in mining business so that the management of natural resources can be benefitting for poeple’s welfare and Sustainable Development Goals (SDGs) is achieved.
Challenging Nominee Agreements in the Mining Industry: Between Constitutional Mandates and Legal Evasion Sumarsih, Ida
Indonesia Law Review Vol. 15, No. 1
Publisher : UI Scholars Hub

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Abstract

The restriction of foreign ownership in Indonesia’s mineral and coal mining sector is intended to uphold national sovereignty over natural resources and ensure equitable public welfare. However, these objectives are undermined by the widespread use of nominee agreements, a form of legal circumvention that enables foreign investors to covertly maintain control over mining operations. This normative juridical study, based on secondary legal sources and inductive analysis, finds that the persistence of nominee practices is primarily due to inadequate regulatory oversight and weak law enforcement. As a result, the benefits of mining activities are diverted away from the Indonesian people, contradicting the constitutional mandate that natural resources be utilized for the greatest possible prosperity of the population. The study recommends the establishment of a coordinated regulatory framework involving the Ministry of Energy and Mineral Resources, the Directorate General of Mineral and Coal, the Ministry of Law and Human Rights, and the Investment Coordinating Board to monitor beneficial ownership structures and enforce existing prohibitions on nominee arrangements. Strengthening these mechanisms is essential to safeguard Indonesia’s resource sovereignty and ensure the fair distribution of mining revenues.
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