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Amid the soaring price of coal in the world market, two
Indonesian business tycoons and a major international bank began a
legal battle in Singapore on Tuesday, as part of a struggle between the
tycoons to ensure control of one of Indonesia's most lucrative coal
mines worth billions of U.S. dollars. While for the bank, the battle is
aimed at maintaining its international reputation and credibility,
which could be in real danger if it loses this battle.
This struggle, however, could prove to be very costly and time
consuming for all parties involved, because the problem itself is
complicated and even those who are intensively involved in the dispute
acknowledge the shareholdership is "complicated and can be confusing".
Sukanto Tanoto, the chairman of the widely diversified Raja Garuda Mas
International, believes he lost a coal mine concession in South
Kalimantan with three billion tons of reserves because Edwin
Soeryadjaya and the German Deutsche Bank conspired against him.
Edwin is the youngest son of the widely respected businessman William
Soeryadjaya, who once owned the country's largest carmaker, PT Astra
International, before losing it to former president Soeharto and his
cronies in 1993. Edwin's side insists they are innocent and the shares
transaction was conducted legally and in a very transparent manner.
Meanwhile, the bank, in a press released issued here, insisted it "sold
the pledged (Adaro) shares as it was entitled to after three years of
attempts to restructure the loan were rejected".
Singapore-registered Beckkett Pte Ltd. -- indirectly owned by Sukanto
-- is suing Deutsche Bank and the Jakarta-based company PT Dianlia
Setyamukti (DSM) -- indirectly owned by Edwin -- to get back its 40
percent share in coal miner PT Adaro Indonesia and PT Indonesia Bulk
Terminal (IBT).
The hearing at the Singapore High Court began Tuesday and is expected
to last for three weeks. In June, at the earliest, Judge Kan Ting Chiu,
is expected to issue his verdict.
Meanwhile, Sukanto and Deutsche Bank also have a separate legal fight
in Jakarta. They are now waiting for a final say from the Supreme
Court, which is also facing its own struggle to repair its damaged
reputation due to allegations of corruption and power abuses in
Indonesia's highest court.
At the request of the bank, the South Jakarta District Dourt issued 12
decrees Dec. 11, 2001, to endorse the sale of the pledged Adaro shares.
On Feb. 19, 2002, the court issued four more similar decrees.
On Feb. 25, 2005, Jakarta High Court found fault with the 16 decrees.
The bank appealed the high court's decision to the Supreme Court and
the case is still pending.
The dispute itself is a legacy of the Asian financial crisis that swept
through the region in 1997, with Indonesia still struggling to recover
from the impact of the economic turmoil. Many Indonesian companies went
bankrupt, and failed to repay billions of U.S. dollars in debts to
banks and financial institutions, including foreign ones.
The coal saga began in 1997, when the government granted Adaro a
25-year concession to mine coal in North Hulu Sungai regency, South
Kalimantan. Sukanto and Hashim Djojohadikusumo -- the chairman of
Tirtamas Group -- through subsidiary companies, were major (but
passive) shareholders at the time, while the remaining 41.6 percent
stake was owned by Management Group (controlled by Australian company
New Hope Co. Ltd.).
Hashim is the brother of Lt. Gen. (ret) Prabowo Subianto, the
son-in-law of former president Soeharto.
Beckkett, a wholly owned subsidiary of the Mauritius-based Asian Mining
Energy Cooperation, prior to February 2002, owned about 74.2 percent of
PT Swabara Mining and Energy, which in turn owned practically the
entire stake in a subsidiary called PT Asminco Bara Utama (Asminco).
Prior to December 1997, Asminco owned 15 percent of Adaro and 20
percent of IBT, which serves Adaro's coal production business. The
group of the companies is called Swabara Group. Graeme Robertson at
that time acted as chairman, CEO and president director of Swabara
Group as well as managing director of New Hope.
Hashim's family intended to give up their coal business in 1997 and
offered their shares to Sukanto. Sukanto, through his company Asminco,
had the chance to increase his stake in the giant coal producer to up
to 40 percent, if he could buy Hashim's 25 percent stake in Adaro.
The economic crisis had already hit Indonesia, but many investors
falsely believed it was only temporary, and then president Soeharto
still boasted that the country's macro-economic situation was very
solid and was only suffering from "influenza". For many Indonesian
companies, it was still business as usual.
It was not difficult for Asminco to find a creditor. In October 1997,
Deutsche Bank agreed to provide a $100 bridging loan for the company,
to be used, among other things, to purchase Hashim's stake and some
other shares and to expand the coal mining activities.
One month later, the bank and Asminco signed a share pledge agreement,
in which the company's 40 percent stake at Adaro, including the newly
acquired shares from Hashim's family, was used a collateral. Sukanto's
lawyers contend their client believed at that time the bridging loan
would be followed up by more long-term credit from the bank.
Three months after Soeharto's fall in May 1998, and with the country's
economic picture becoming more chaotic, Asminco's debt reached its
maturity date and the company was not able to meet its obligations to
Deutsche Bank. At that time, many financial institutions in Indonesia
were in trouble because billions of dollars of their loans in Indonesia
were in danger of becoming worthless. The aggressive lending before the
economic crisis quickly turned into panicked attempts to salvage loans.
In May 2000, the bank and Asminco agreed to extend the loan maturity
date until June 2001. The debt was defaulted as the company was
struggling for its very survival. The two parties held a series of
negotiations to restructure the loan, but no deal was reached.
Deutsche Bank then sold the shares to Edwin's DSM in a private deal in
February 2002. After selling other collateral, the bank was able to
retrieve $46 million.
In Tuesday's session in Singapore's High Court, Beckkett, as the
plaintiff, said the sale of the pledged shares by Deutsche Bank to DSM,
as the first and second defendants, was part of a conspiracy between
the two companies.
"Pursuant to the sale agreement, Deutsche Bank purported to sell the
pledged shares at a significant undervalue. As such, by agreeing to
such a sale at an undervalue, in breach of Deutsche Bank's mortgagee
duties, DSM and Deutsche Bank have, in fact, acted in concert in order
to interfered with Beckkett's interests by unlawful means," said
Beckkett lawyer Steven Chong in his opening statement. Beckkett
demanded the return of its shares.
The bank insisted that, according to the contract, in the case of
default it had the right to sell the shares in private and could
determine the price.
After a closed-door session Monday, Singapore High Court Judge Kan Ting
Chiu on Tuesday began the trial, which is scheduled to last for three
weeks. The judge is expected to issue his verdict within six months.
But when the war will be over?.
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