MM5001 Business Law and Business Ethics

FINAL EXAM
Bankruptcy of PT Kertas Nusantara in Business and Law Perspective

29111311 Haidir Afesina MBA Executive 46

MASTER OF BUSINESS ADMINISTRATION SCHOOL OF BUSINESS AND MANAGEMENT INSTITUT TEKNOLOGI BANDUNG 2012

Abstract The phenomenon of bankruptcy in business sounds frightening for the company. It is because the cost of Bankruptcy is very expensive and it borne by the firm shareholder. It not only happened to company with unhealthy financial condition, but also healthy one. In addition, having working capital loans from any of financial or non-financial institutions is normal for the business growth and development. Therefore mostly bankruptcy results from financial distress, which happens when the market value of the assets is insufficient to satisfy the debt claims, or when the firm does not generate enough cash flow to meet the coupon and interest payments. The essay will cover the issues of bankruptcy lawsuit and its effect. The analyses use both of law and business perspective in order to see the relation. Act No. 37 of 2004 on Bankruptcy and Suspension of Payment is being used as the guideline. Taken example of PT Kertas Nusantara (formerly PT Kiani Kertas) that successfully failed from being bankrupt. It started when creditors of PT Kertas Nusantara threatened to file a case review against a Jakarta Commercial Court. Some issues from the mechanism and also the story behind made it interesting as a business lesson learned. The creditors objected to the court's approval of a time extension request, which awarded more time to the company to pay off its debts.

Background In business world, the uncertainty of economic condition may put firms in the risk of experiencing financial distress or bankruptcy. Therefore bankruptcy is a phenomenon that is often greatly feared the company, either by the owner or the management. Means the company unable to run its operations properly and could not produce normally. Thus the company is considered to have failed in business or unable to pay its debts. However, filling for bankruptcy is also considered the most appropriate solution to resolve the issue of corporate debt that could not be resolved (Fuady, 2008). For the growth of the company, there is a need of increasing demand for additional capital. Thus the company borrow capital to creditors in this case the financial institutions, both banks and the financial institutions of non-bank financial institutions. Working capital loans by these creditors abide the consequences in accordance with the payback period is determined by both parties i.e. debtor and creditor (Saliman, 2005). Nevertheless, prediction error towards the continuity of capital in the future can cause severe loss for the company. PT Kertas Nusantara The business atmosphere in Indonesia is highly competitive. It is often occurs ups and downs in terms of gains and losses. Consequently, few companies lose money and eventually go out of business. PT Kertas Nusantara (formerly PT Kiani Kertas) experienced the bankruptcy condition.
A company owning a large pulp mill in Berau East Kalimantan by Prabowo Subianto,

Indonesian politician conglomerate of great movement of Indonesian Party (Gerindra). As one of the biggest pulp and paper companies in Indonesia and the biggest in South East Asia, it has lots of controversy since its established in 1997 especially high debts. In 2004, Prabowo bought the company from IBRA (Indonesian Bank Restructuring Agency) or BPPN, and being funded by the bank loan of USD 230 million. Then it processed into a well-established company called PT Kertas Nusantara (PT KN). Along the way, the company had difficulty working capital. Thus a number of domestic and foreign investors intend to invest in this company. Unfortunately all ended without a deal. The case started in 2005. Allied Ever Investment Ltd, a Hong Kong based company, has filed bankruptcy lawsuit against PT Kertas Nusantara for defaulted payments of US$20 million. It began since its receivables that arise from the agreement signed debts on December 20, 2004. The issue has been on and off until 2011. Indeed it is a negative publication for Prabowo who nominate as presidential candidate in 2014. The company admitted that they could not complete
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its obligations to the debtor. It might not be the same as in 1990s when Indonesian pulp producers had relatively easy access to international capital. However, PT Kertas Nusantara tried to convince for suspension of payment (PKPU) that its asset still could be used optimally. In addition it also has prospective new investors to do business again. They did so by convincing investment institutions that they had access to long-term supplies of very cheap wood and could produce the lowest-cost pulp in the world. Here are the chronicles of PT Kertas Nusantara (PT KN) lawsuit with Allied Ever Investment; 1. 2005 : claimed for US$ 20 million debts Given a penalty as PT KN could not pay its obligation based on the agreement 2. 2008 : December 12th, claimed for approximately USD 32,907 million debts (total with penalty and other costs) In January, the claimed had been withdrawn because of composition (accord) proposal 3. 2009 : In June, the second claimed bankruptcy filled return. Few days before the hearing process, the claimed had been withdrawn for the second time with the same reason on first withdrawn i.e. accord proposal 4. 2011 : June 1st , filled the suspension of payment (PKPU) July 21th, Central Jakarta Commercial Court approved the composition (accord) proposal (88% of creditors agreed for the payment scheme) October 11th, Supreme Court rejected the appeal review from Allied Ever Investment and still enforces the accord decision. Objective 1. To define the bankruptcy lawsuit process 2. To evaluate the court decision to both of parties in law perspective 3. To analyze the action that both of parties did after the final decision in business perspective Problem 1. Allian Ever Investment did not accept the judge decision that approved the vote on composition (accord) proposal by PT Kertas Nusantara 2. Allian Ever Investment felt the judge did not apply the right procedure during the reading of the decision
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Analysis The term of bankruptcy is familiar for business people. However, there is misinterpreting of the purpose itself. Instruments bankruptcy is one of the government's efforts in addition to various other measures that should be taken into account when discussing national economic recovery efforts, so that companies that do not successfully restructure will end up in the Commercial Court with bankruptcy cases (Manik, 2012). People also often misunderstand about the bankrupt as a word. It is not always because of unhealthy financial state of the company but also bankruptcy can occur in a healthy financial state of the company. Thus the company was bankrupted for unpaid debt has been due to one or more creditors. If debtor is a limited liability company (Perseroan Terbatas) then we have to pay attention to the rules governing Limited Liability Company, the consequences of bankruptcy and the management responsibilities of the Limited Liability Company (Fuady, 2008). Debtors who have problems with debt obligations have various alternative settlements. They are; 1. Negotiate debt cancellation request (part or whole) 2. Sell its assets 3. Convert the loan to equity However, the creditor can sue under the laws of the Civil Code if the debtors break a promise while it has the financial or property sufficient to pay its debts. In addition to the above possibilities, if the debtor has no financial, property or assets are sufficient as a last resort solution then the creditors take over the bankruptcy laws Bankruptcy Act 37 of 2004 by filing a bankruptcy petition to the Commercial Court in the jurisdiction (Manik, 2012). The final judgments of PT Kertas Nusantara status had been decided at the Supreme Court (Mahkamah Agung) no 581 K/Pdt .Sus /2011. The analysis will use both of law and business perspective. The main reason is to see the implication of the bankruptcy case to the business world so that it would be a valuable lesson learned. Bankruptcy Law Bankruptcy law was originally intended to protect the creditors by providing a clear and definitive way to settle the debt that could not be paid, then the Bankruptcy Act also aims to protect borrowers by providing a way to settle debts without paying in full (Fuady, 2008). Means business can be revived without the burden of debt. Thus Act No 37 of 2004 Bankruptcy and Suspension of Payment (PKPU) is one of the laws that are important in business law besides
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the Act on Limited Liability Companies (Perseroan Terbatas), Law on Investment, Law on capital markets, Law on Manpower and other laws relating to the business. The Act has been set on the composition (accord) plan, the process and the legal consequences of any attempt Suspension of Payment (PKPU) for bankrupt debtors. The Process Allied Ever Investment ltd filed bankruptcy lawsuit against PT Kertas Nusantara at Central Jakarta Commercial Court after the company failed to do its obligations so that fines is given. In the loan agreement, one year period is set for PT KN obligated to pay the principal amount also contains provisions if no payment on principal and fees the penalty of 1 percent per month of the amount of money owed. The overall amount of debt PT KN to Allied Ever Investment is USD 32 millions with the details, the principal amount of US$ 20 million, the cost of a loan of USD 3 million for 36 months and a fine of USD 9 millions. According to Act No. 37 of 2004 on Bankruptcy and Suspension of Payment Article 1 1. Bankruptcy shall mean general confiscation of all assets of a bankrupt debtor that will be managed and liquidated by a curator under the supervision of Supervisory Judge as provided for herein. Section 1 Conditions and Judgment of Bankruptcy Article 2 (1) A Debtor having two or more creditors and failing to pay at least one debt which has matured and became payable, shall be declared bankrupt through a Court decision, either at his own petition or at the request of one or more of his creditors. To meet the elements of bankruptcy as set out in above, Allied Ever also includes other creditors, i.e. PT Kristal Anugerah Abadi (USD 15,000) and CV Mandiri Pratama Sejahtera (IDR 2.79 billion). With such elements bankruptcy under Article 2 (1) the Bankruptcy Act, debts due and collectible, and there are two or more creditors, are fulfilled. With the declaration of bankruptcy, foreclosure and execution of the debtors assets are generally conducted for the benefit of its creditors by dividing the wealth among the creditors of the debtor by curator (Manik, 2012). In business world, most capital owned by entrepreneurs or companies are coming from banks loan. Thus sometimes it causes lot of problems for debts settlement. Logically, the assumption lending by creditors to debtors believes the debtor able to repay on time. In fact, repayment of debt owed to the creditor does not always run smoothly. Moreover, sometimes debtors do not pay their debts to creditors even when the businesses already develop.
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Referring to Article 1131-1132 Indonesian Civil Code, the debts that have to be paid first are; Section 1 Concerning priority of debts in general Article 1131 All movable and immovable assets of the debtor, either present or future, shall be regarded as securities for the debtor's personal agreements. Article 1132 The assets shall serve as joint guarantees for his creditors; the proceeds thereof shall be divided among the creditor in proportion to their loan, unless there exists a legal order of priority among the creditors. The two articles mentioned above, showed that creditors might not get full of payment (100%), however the bankruptcy law and suspension of payment will give justice for creditors to obtain their rights in the debt-repayment claims (Manik, 2012). The law also provides assurance to the creditor that if the debtor did not pay off the debt at a specified time, then the debtor's property, whether movable or immovable which has existed and will exist in the future, will be the collateral can be sold to settle debts. However, it implies that each creditor has the same position against other creditors, unless otherwise provided by law because they have legitimate reasons to take precedence over other creditors (Saliman, 2005). Then PT Kertas Nusantara tried for suspension of payment (PKPU). They admitted that there is a problem to pay the creditors i.e. insufficient fund. Then they try to convince the judge that its asset still could be used optimally and also has prospective new investors to do business again (www.bisnis.com). They did so by convincing investment institutions that they had access to long-term supplies of very cheap wood and could produce the lowest-cost pulp in the world (www.finance.detik.com). This case started from the failure to pay the debt to 161 creditors. According to Act No. 37 of 2004 on Bankruptcy and Suspension of Payment Article 222 (2) Debtors are unable to continue to pay its debts which have fallen over time and in the notes, may apply for postponement of debt payment obligations, with a view to propose a composition (accord) plan which includes an offer to pay some or all of the debt to the creditor. According to Fuady (2008, p.82), the definition of suspension of payment is; A certain period provided by law through the commercial court within that period of time in which the creditor and the debtor is given the opportunity to deliberate on ways to provide debt payment plan to pay all or part of the debt, including the debt restructuring if necessary
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During Suspension of Payment (PKPU), the debtor without the agreement of the board could not take any management action or ownership of all or part of his property (Saliman, 2005). The judge gave 45 days for PT Kertas Nusantara to do its obligations to all creditors. Otherwise, it will be declared bankrupt. Being declared bankruptcy will loss both of PT Kertas Nusantara and all the creditors. The reasons are; 1. The creditors will not get their money back. The assets will be selling in public through action. Thus the amount of money and value will not be equal to their loss. 2. In business, being regard as the biggest pulp and paper factories in South East Asia and Indonesia still has competitive advantage to gain investor along with natural resources. The main reason why many investors ended without a deal is that it has to be Indonesian. Otherwise the profit will all move overseas. 3. Having 161 creditors show that the business is still profitable. They realized that it bring mutual benefit for both of PT Kertas Nusantara and creditors. The business has long term prospect regardless the late payment of the debts. It is also show that the creditors depend on PT Kertas Nusantara. 4. PT Kertas Nusantara main problems is the inability of their management system and its capital. Business is not just about the number but also the people and history behind it. The other issue at that time was how the settlement of debts in the business world. It is common that both of foreign and local creditors with all its resources insist that the majority of debtors who are national private companies to pay off their obligations. In 2005, the situation of the business world is not conducive to repay debt, it has grown to be doubled due to the weakening of the rupiah against all other currencies. The majority of loans at PT Kertas Nusantara are in foreign currency and business activities have been paralyzed as a result of the industry crisis in Indonesia 2005 has turned into a multi-dimensional crisis. The Composition Plan The courts accepted the suspension of payment of PT Kertas Nusantara in order to be given a chance for accord (composition) with creditors and obtain concessions and debt restructuring.

According to Act No. 37 of 2004 on Bankruptcy and Suspension of Payment; Article 144 Bankrupt debtor reserves the right to offer composition (accord) to all creditors. Article 165 In terms of peace or endorsement, rejected Bankrupt Debtor can no longer offer the reconciliation (accord) in bankruptcy. Meeting held for composition (accord) plan with 120 creditors that will decide the composition plan. There are three aims having the composition plan meeting (www.tempo.co); 1. PT Kertas Nusantara can resume operations and production of paper pulp or pulp 2. Provides a reasonable payment for both of separatists creditors and concurrent creditor 3. Composition plan can realistically be implemented and completed by the company According to Act No. 37 of 2004 on Bankruptcy and Suspension of Payment Article 151 Composition plan accepted if approved at the meeting of creditors by more than 1/2 (one half) of unsecured creditors who attended the meeting and whose rights are recognized or acknowledged temporarily, representing at least 2/3 (two thirds) of the total accounts receivable concurrent recognized or acknowledged temporarily unsecured creditors or their proxies present at the meeting. PT Kertas Nusantara managed to avoid being legally declared bankrupt because 120 of its 143 creditors agreed to give the firm more time to pay off its debts while 12 creditors disagreed. It is 89 percent agreed to grant the extension of debt repayment. The decision was taken in a vote that was overseen by a judge who oversaw the proceedings. The vote was held whether or not to reject or approve a request to extend the time limit given to the firm to pay off its debts. June 21st, 2011, Central Jakarta Commercial Court approved and accepted the composition plan proposal resulted. The debt payment time limit extension officially on July 27th and the payment of debts will start in 2013. According to Act No. 37 of 2004, article 55, the creditors are divided into three groups; 1. Separatist Creditor Special creditors who can execute his rights as if no bankruptcy occurred 2. Preferential Creditor Creditors have the right to take precedence over claims of other creditors payments, which by their nature are privileged claims of receiving repayment of advance 3. Concurrent Creditor
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Creditors that its receivables are paid by the rest of the sale / auction of property taken by the bankruptcy after creditors separatist groups and preferential creditors In short, Concurrent creditors are creditors that are not guaranteed by the assets of the company while Separatist creditors are guaranteed (Saliman, 2005). According to Act No 13 of 2003 on Manpower Article 95 (4) If the company is declared bankrupt or liquidated under the rules applicable legislation, wages and other rights of workers / laborers are prioritized debt payments. The article above showed that employees are being categorized as preferential creditor if the company declared bankrupt. Thus they have their rights as well. Below are the creditors complete composition plans (www.hukumonline.com); 1. Separatist Separatist creditors will get 100 percent repayment of the principal amount for 15 years. 2013 USD 5 million and gradually increase to USD25 million in 2017. 2017-2025 USD 25 million annually 2026 debt will be paid off using new loan for the remaining USD 115 million. 2. Concurrent Concurrent creditor will get 100 percent repayment of the principal amount for 20 years. 2013 USD 1 million and gradually increase to USD 2 million in 2014 2015-2031 USD 4 million annually 2031 will be paid off using new loan for the remaining USD 383 million debts. The Consequences Once the Court had made the decision, there are some problems appear such as dissatisfaction of the decision from the creditors. First, employees who deserve their rights as preferential creditor, as mention on the statement above. There were 600 employees of PT Kertas Nusantara who asked the payment of 40% remaining total payroll that expired in June (www.kaltim.tribunnews.com). Thus, the author argued that it was the right move by PT Kertas Nusantara, which proposes the composition plan to the creditors, and had it accepted. The reason is that the company which
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unable to pay creditors need the employee to work as soon as possible. Regardless of the production result, the company has huge potential to keep gain investor and consumer. Then, the total asset if being sold will not able to cover total costs of the company. In fact, the total value of its asset is very huge. That is one the reason creditors want it. Moreover, the people and the city need the company to start again. As many people are depend on PT Kertas Nusantara as their source of earning. Second, there are unhappy creditors who disappointed with the court decision. Allied Ever Investment filed an appeal for accord review to the proposal made by PT Kertas Nusantara that was considered unreasonable. Allied Ever Investment felt that it should not be legalized. The author tried to analyze each of the objections by Allied Ever Investment through their lawyer. There are; 1. Unreasonable proposal (15-20 years to repayment) and the judges are not an expert regarding this Peace plan with the debt around almost Rp15 trillion in just 4 pieces, decided and discussed together with the debtor in just 3 hours, Sheila Salomo said (www.tempo.co) From law perspective, Judge has to be neutral and focus on how the law and act applied on every decision that will be made. The author felt that Allied Ever Investment do not want this accord. They want the asset of PT Kertas Nusantara. However, the author agreed that the need of expertise during the meeting would help the judge to see a bigger picture and its business validity. It will never be satisfied all the parties involved, but tried to get the fair options. From business perspective, 15-20 years are normal. Looking at the business opportunity, the money has to be moving for the growth and development. Thus the creditors will still get theirs rights, as the company will start getting its positive performance after 10 years. The first 5 years is recovery time. However it will still be enough for them to pay using their emergency fund. There is also an opportunity to go public to get more working capital. There is nothing instant in the business, especially the uncertainty of Indonesian economic. It might be funny, the economy concept in business that the bigger the company the greater the debts. However, it will bring the benefit for the development of the business as long as having the right management. Last the total asset of the company is very huge. Thus some creditors thought it is a good chance for them if the company is declared bankrupt.
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2. The financial report was not transparent and it has not been audited. The most important aspect here is that the financial report and statement has to be shown during the meeting. The report has to publish the company latest condition. It might not be audited yet, as the company stops the production. Thus the point that Allied Ever Investment should focus is the amount of the net profit along with its current asset as value. 3. The judges were ignoring the interruption. The judge violated the procedure based on Article 284 paragraph 1 of the Bankruptcy Act. It is mentioned in the bankruptcy court decision, the judge must listen and consider to the creditors objections of the results. Here is just a matter of the mechanism. Thus it will not be affected to the decision itself. In other words, Allied Ever Investment still going to receive and accept the composition plan as it is already legalized. It is normal for unhappy creditors to question whether PT Kertas Nusantara would be able to abide the composition plan agreement. However, having had 89 percent of the creditors who agreed show that they depend on the business. The name of the company with the biggest pulp machine and its popularity within industry still potential to be profitable once it works again. It is shown by the big name from international investment companies that lend money to PT Kertas Nusantara such as Boshendal Investment Ltd, Langass Offshore Inc. to JP Morgan Europe Ltd. and Credit Suisse International. In addition, the implementation of the composition plan is also depends on the good faith and willingness PT Kertas Nusantara to exist or not. According to law that there is still a possibility to canceled and declared bankrupt. The current condition of the company is that they start producing again since April 2012. In addition the agreement for operational cooperation (KSO) with PT Medco that already signed during the bankruptcy lawsuit is being continue along with high demand from importing countries, especially China (www.kaltim.tribunnews.com). Thus shows that the business is still promising. Also it can be said that there is a management restructure in order to face the 2015 i.e. Asean Free Trade. This is also become the reason why PT Kertas Nusantara is believed to be survived from bankruptcy.

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The case was closed by the final decision from Supreme Court that there is no reason to review and to reject the accord of suspension of payment. The reasons are; 1. It is accordance to the law that 2/3 of total creditors agreed with the accord 2. Ms. Pininta said during lecturing in class that the appeal review would be accepted if it could be proven in a simple way. It is the same with the bankruptcy settlement will be accepted without complicated evidentiary.

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Conclusion Bankruptcy settlement was carried out with a definite period of time, through a Commercial Court. Bankruptcy Law aims to balance several objectives, including protecting the rights of creditors and to avoid premature liquidation. In addition it is the choice of law for creditors to recover their receivables i.e. all receivables are past due. Also simply does not require complicated evidentiary. The Judge will declare bankrupt the company only if the matter can be proven in a simple way. The settlement can be happening to both of healthy and unhealthy company i.e. financial condition. Bankruptcy petition can only be done if it meets the following requirements: 1. Debtor has at least two creditors in other words to have more than one creditor; 2. Debtor does not pay at least one debt to creditors, and 3. An unpaid debt that had matured and been able to be billed Suspension of payment (PKPU) is the action that the debtors do in order to propose accord (composition) with creditors and obtain concessions and debt restructuring. It is also called surseance condition, as there is goodwill from the debtors with its inability to pay the debts to creditors. The accord (composition) plan will first accepted by the 2/3 creditors then it has to be accepted as well by the Court in order to legalize it. Thus bankrupt is the last options for company if they unable to reach agreement with the creditors. Recommendation When debtors declared bankrupt, regardless its financial condition, the creditors is the one who will benefit the most. Logically, the assets of the company will be very huge and worth billion dollars. 1. The company needs to be protected by law especially when the creditors filled the bankruptcy lawsuit. It has to be considered how the decision effected to the economy of the country, city and people. 2. The need of expertise from third party is needed in order to help the judges decide in accordance to see a bigger picture in both of law and business side.

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References Books Fuady, Munir (2008) Pengantar Hukum Bisnis: Menata Bisnis Modern di Era Global Bandung: PT. Citra Aditya Bakti Manik, Edward (2012) Cara Mudah Memahami Proses Kepailitan dan Penundaan Kewajiban Pembayaran Utang Bandung: CV. Mandar Maju Saiman, Abdul R (2005) Hukum Bisnis Untuk Perusahaan (2nd Ed) Jakarta: Kencana Pranada Media Group Law and Regulation Indonesian Civil Code (Burgerlijk Wetboek voor Indonesie) KITAB UNDANG UNDANG HUKUM PERDATA Act No. 37 of 2004 on Bankruptcy and Suspension of Payment Act No. 13 of 2003 on Manpower Supreme Court decision No. 581 K/Pdt .Sus /2011 Internet http://www.asiaviews.org/headlines/1-headlines/775-headlinealias775 (Accessed 5 December 2012) http://en.bisnis.com/articles/ma-tolak-kasasi-allied-soal-pkpu-pt-kertas-nusantara (Accessed 5 December 2012) http://finance.detik.com/read/2011/10/19/164523/1747888/4/perusahaan-kertas-milik-prabowoharus-cicil-utang-20-tahun?f990101mainnews (Accessed 5 December 2012) http://www.hukumonline.com/berita/baca/hol22207/lagi-pt-kertas-nusantara-batal-dipailitkan (Accessed 5 December 2012) http://kaltim.tribunnews.com/2012/04/15/pt-kertas-nusantara-kembali-berproduksi (Accessed 5 December 2012) http://kaltim.tribunnews.com/2011/08/11/karyawan-kiani-datangi-kantor-bupati-berau (Accessed 5 December 2012) http://nasional.kontan.co.id/news/allied-ever-investment-cabut-gugatan-terhadap-kertasnusantara (Accessed 5 December 2012) http://nasional.news.viva.co.id/news/read/234297-perusahaan-prabowo-bertemu-120-pemberiutang (Accessed 6 December 2012)
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http://www.tempo.co/read/news/2011/06/09/087339729/PT-Kertas-Nusantara-Terancam-Pailit (Accessed 6 December 2012) http://www.tempo.co/read/news/2011/07/21/090347744/PT-Kertas-Nusantara-Lolos-dariAncaman-Pailit (Accessed 6 December 2012) http://www.tempo.co/read/news/2011/07/27/090348676/Kreditor-Kertas-Nusantara-AkanLaporkan-Hakim-ke-Komisi-Yudisial (Accessed 6 December 2012) http://www2.tempo.co/read/news/2011/07/27/090348675/Kertas-Nusantara-Menang-diPengadilan-Niaga (Accessed 6 December 2012)

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