WT/DS592/R  
 
 30 November  2022 
(22-8906) Page: 1/103 
  Original: English  
 
  
INDONESIA – MEASURES RELATING TO RAW MATERIALS  
REPORT  OF THE PANEL  
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 WT/DS592/R  
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  TABLE OF CONTENTS  
 
1   INTRODUCTION  ................................ ................................ ................................ ........  14 
1.1   Complaint by the European  Union  ................................ ................................ ................. 14 
1.2   Panel establishment and composition  ................................ ................................ ............ 14 
1.3   Panel proceedings  ................................ ................................ ................................ .......14 
2   FACTUAL ASPECTS ................................ ................................ ................................ ..... 15 
2.1   The measures at issue  ................................ ................................ ................................ 15 
2.1.1    Export prohibition of nickel ore  ................................ ................................ .................. 15 
2.1.2    Domestic processing requirement on nickel ore  ................................ ........................... 19 
2.2   Other factual aspects  ................................ ................................ ................................ ..22 
2.2.1    Nickel  ................................ ................................ ................................ ..................... 22 
2.2.2    Nickel mining in Indonesia  ................................ ................................ ........................ 25 
2.2.2.1    Legal and policy framework of mining activities  ................................ ........................ 25 
2.2.2.2    Types of nickel ore and reserves  ................................ ................................ ............. 26 
2.2.2.3    Extraction and refining of nickel ore  ................................ ................................ ........ 28 
2.2.2.4    Environmental impact of nickel mining  ................................ ................................ .....30 
3   PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  ................................  32 
4   ARGUMENTS OF THE PARTIES  ................................ ................................ ...................  32 
5   ARGUMENTS OF THE THIRD PARTIES  ................................ ................................ ........  32 
6   INTERIM REVIEW  ................................ ................................ ................................ ...... 32 
6.1   Introduction  ................................ ................................ ................................ ............... 32 
6.2   Indonesia's specific requests for review  ................................ ................................ ......... 33 
6.2.1    Paragraph 7.17  ................................ ................................ ................................ .......33 
6.2.2    Paragraph 7.48  ................................ ................................ ................................ .......33 
6.2.3    Paragraph 7.70  ................................ ................................ ................................ .......34 
6.2.4    Paragraph 7.87  ................................ ................................ ................................ .......34 
6.2.5    Paragraph 7.111  ................................ ................................ ................................ ......34 
6.2.6    Paragraphs 7.228, 7.243, 7.277 and 7.278  ................................ ................................ .35 
6.2.7    Footnote 466 (previously 448) to paragraph  7.228  ................................ ...................... 35 
6.2.8    BCI issues raised by the Panel  ................................ ................................ ................... 36 
7   FINDINGS  ................................ ................................ ................................ .................  36 
7.1   Preliminar y issue  ................................ ................................ ................................ ........ 36 
7.1.1    Main arguments of the parties  ................................ ................................ ................... 38 
7.1.2    Analysis by the Panel  ................................ ................................ ............................... 39 
7.2   Article  XI of the GATT  1994 ................................ ................................ ......................... 40 
7.2.1    Whether Indonesia's measures constitute prohibitions or restrictions on the export or sale 
for export of nickel ore  ................................ ................................ ................................ .......41 
7.2.1.1    The export ban  ................................ ................................ ................................ .....43 
7.2.1.1.1    Main arguments of the parties and third parties  ................................ ..................... 43 
7.2.1.1.2    Analysis by the Panel  ................................ ................................ .......................... 45 WT/DS592/R  
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  7.2.1.2    Domestic processing requirement  ................................ ................................ ........... 46 
7.2.1.2.1    Whether Article  XI of the GATT  1994 applies to a measure such as the DPR  .............. 46 
7.2.1.2.2    Main arguments of the parties and third parties  ................................ ..................... 46 
7.2.1.2.3    Analysis by the Panel  ................................ ................................ .......................... 48 
7.2.1.3    Whether the DPR has a limiting effect on exports  ................................ ...................... 51 
7.2.1.3.1    Main arguments of the parties and third parties  ................................ ..................... 51 
7.2.1.3.2    Analysis by the Panel  ................................ ................................ .......................... 52 
7.2.1.4    Conclusion on whether the DPR is a restriction within the meaning of Article  XI:1 of the 
GATT  1994 ................................ ................................ ................................ ........................ 54 
7.2.2    Whether nickel ore is essential to Indonesia within the meaning of Article  XI:2(a) of the 
GATT  1994 ................................ ................................ ................................ ........................ 54 
7.2.2.1    Main arguments of the parties and third parties  ................................ ........................ 54 
7.2.2.2    Analysis by the Panel  ................................ ................................ ............................. 55 
7.2.3    Whether the export ban and the DPR are temporarily applied  ................................ ........ 58 
7.2.3.1    Main arguments of the parties and third parties  ................................ ........................ 58 
7.2.3.2    Analysis by the Panel  ................................ ................................ ............................. 60 
7.2.4    Whether the export ban a nd the DPR applied to prevent a critical shortage of nickel ore in 
Indonesia  ................................ ................................ ................................ .......................... 62 
7.2.4.1    Main arguments of the parties and third parties  ................................ ........................ 63 
7.2.4.2    Analysis by the Panel  ................................ ................................ ............................. 64 
7.2.4.2.1    Critical shortage within the meaning of Article  XI:2(a) of the GATT  1994................... 65 
7.2.4.2.2    The level of nickel ore reserves in Indonesia  ................................ .......................... 66 
7.2.4.2.3    Whether there is an imminent critical shortage of nickel ore in Indonesia  .................. 67 
7.2.5    Overall conclusion on Article  XI:2(a) of the GATT  1994 ................................ ................. 68 
7.2.6    Whether Indonesia's measures are inconsistent with Article  XI:1 of the GATT  1994 ......... 69 
7.2.6.1    The export ban  ................................ ................................ ................................ .....69 
7.2.6.2    The DPR  ................................ ................................ ................................ .............. 69 
7.3   Whether Indonesia's measures are justified under Article  XX(d) of the GATT  1994 .............. 69 
7.3.1    Whether the measures at issue are necessary to secure compliance with laws or regulations 
which are not inconsistent with the provisions of the GATT  1994 ................................ .............. 70 
7.3.1.1    Whether the measures at issue secure compliance with laws or regul ations that are 
themselves not inconsistent with the GATT  1994 ................................ ................................ ...71 
7.3.1.1.1    Laws and regulations  ................................ ................................ .......................... 71 
7.3.1.1.1.1    Main arguments of the parties and third parties  ................................ .................. 71 
7.3.1.1.1.2    Analysis by the Panel  ................................ ................................ ....................... 72 
7.3.1.1.2    Consistency of the laws and regulations with the GATT  1994 ................................ ...76 
7.3.1.1.2.1    Main arguments of the parties  ................................ ................................ ........... 77 
7.3.1.1.2.2    Analysis by the Panel  ................................ ................................ ....................... 77 
7.3.1.1.3    Secure compliance with the relevant laws and regulations  ................................ .......78 
7.3.1.1.3.1    Export ban  ................................ ................................ ................................ .....78 
7.3.1.1.3.2    DPR ................................ ................................ ................................ ............... 82 
7.3.1.2    Whether the measures at issue are necessary to secure such compliance  .................... 84 WT/DS592/R  
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  7.3.1.2.1    Relative importance of the common interests or values  ................................ ........... 85 
7.3.1.2.1.1    Main arguments of the parties  ................................ ................................ ........... 85 
7.3.1.2.1.2    Analysis by the Panel  ................................ ................................ ....................... 85 
7.3.1.2.2    Trade restrictiveness of the measures at issue  ................................ ....................... 86 
7.3.1.2.2.1    Main arguments of the parties  ................................ ................................ ........... 86 
7.3.1.2.2.2    Analysis by the Panel  ................................ ................................ ....................... 86 
7.3.1.2.3    The contribution of the measures at issue  ................................ ............................. 87 
7.3.1.2.3.1    Export ban  ................................ ................................ ................................ .....88 
7.3.1.2.3.2    DPR ................................ ................................ ................................ ............... 93 
7.3.1.2.4    Weighing and balancing  ................................ ................................ ...................... 95 
7.3.1.2.4.1    Weighing and balancing of factors relating to the measure sought to be justified as 
"necessary"  ................................ ................................ ................................ ....................... 95 
7.3.1.2.4.2    Weighing and balancing of factors relating to the proposed alternative measure  ......96 
7.3.1.2.5    Conclusion on necessity  ................................ ................................ ....................  102 
7.3.2    Conclusion on Article  XX(d) of the GATT  1994 ................................ ...........................  102 
8   CONCLUSIONS AND RECOMMENDATION  ................................ ................................ . 102  
 
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  LIST OF ANNEXES  
ANNEX A  
WORKING PROCEDURES OF THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures Concerning Business Confidential  
Information  12 
Annex  A-3 Additional Working Procedures Concerning Substantive Meetings with 
Remote Participation  15 
Annex  A-4 Additional Working Procedures Concerning Substantive Meetings with 
Remote Participation  19 
ANNEX B  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of the European Union  24 
Annex  B-2 Integrated executive summary of the arguments of Indonesia  34 
ANNEX C  
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Brazil  49 
Annex  C-2 Integrated executive summary of the arguments of Canada  52 
Annex  C-3 Integrated executive summary of the arguments of India 56 
Annex  C-4 Integrated executive summary of the arguments of Japan  59 
Annex  C-5 Integrated executive summary of the arguments of the Republic of Korea  66 
Annex  C-6 Integrated executive summary of the arguments of Ukraine  69 
Annex  C-7 Integrated executive summary of the arguments of the United Kingdom  71 
Annex  C-8 Integrated executive summary of the arguments of the United States  73 WT/DS592/R  
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  CASES CITED IN THIS REPORT  
Short Title  Full Case Title and Citation  
Argentina – Financial 
Services  Appellate  Body Report, Argentina – Measures Relating to Trade in Goods and 
Services , WT/DS453/AB/R  and Add.1,  adopted 9  May 2016, DSR 2016:II, 
p. 431 
Argentina – Hides and 
Leather  Panel  Report , Argentina – Measures Affecting the Export of Bovine Hides and 
the Import of Finished Leather , WT/DS155/R  and Corr.1 , adopted 
16 February  2001, DSR 2001:V, p. 1779  
Argentina – Import 
Measures  Appellate  Body Reports, Argentina – Measures Affecting the Importation of 
Goods , WT/DS438/AB/R  / WT/DS444/AB/R  / WT/DS445/AB/R , adopted 
26 January  2015, DSR 2015:II, p. 579  
Argentina – Textiles and 
Apparel  Appellate  Body Report, Argentina – Measures Affecting Imports of Footwear, 
Textiles, Apparel and Other Items , WT/DS56/AB/R  and Corr.1, adopted 
22 April 1998, DSR 1998:III, p. 1003  
Brazil – Desiccated Coconut  Appellate  Body Report, Brazil – Measures Affecting Desiccated Coconut , 
WT/DS22/AB/R , adopted 20  March  1997, DSR 1997:I, p. 167  
Brazil – Retreaded Tyres  Appellate  Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres , 
WT/DS332/AB/R , adopted 17  December  2007, DSR 2007:IV, p. 1527  
Brazil – Retreaded Tyres  Panel  Report , Brazil – Measures Affecting Imports of Retreaded Tyres , 
WT/DS332/R , adopted 17 December  2007, as modified by Appellate  Body 
Report WT/DS332/AB/R, DSR 2007:V, p. 1649  
Canada – Periodicals  Appellate  Body Report, Canada – Certain Measures Concerning Periodicals , 
WT/DS31/AB/R , adopted 30  July 1997, DSR 1997:I, p. 449  
Canada – Wheat Exports 
and Grain Imports  Panel  Report , Canada – Measures Relating to Expo rts of Wheat and Treatment 
of Imported Grain , WT/DS276/R , adopted 27  Septemb er 2004, upheld by 
Appellate  Body Report WT/DS276/AB/R, DSR 2004:VI, p. 2817  
Chile – Price Band System  Panel  Report , Chile – Price Band System and Safeguard Measures Relating to 
Certain Agricultural Products , WT/DS207/R , adopted 23  October  2002, as 
modified by Appellate  Body Report WT/D S207AB/R, DSR 2002:VIII, p. 3127  
China – Auto Parts  Appellate  Body Reports, China – Measures Affecting Imports of Automobile 
Parts, WT/DS339/AB/R  / WT/DS340/AB/R  / WT/DS342/AB/R , adopted 
12 January  2009, DSR 2009:I, p. 3  
Canada – FIRA GATT Panel  Report , Canada – Administration of the Foreign Investment Review 
Act, L/5504 , adopted 7 February  1984, BISD  30S/140  
China – Publications and 
Audiovisual Products  Appellate  Body Report, China – Measures Affecting Trading Rights and 
Distribution Services for Certain Publications and Audiovisual Entertainment 
Products , WT/DS363/AB/R , adopted 19  January  2010, DSR 2010:I, p. 3  
China – Publications and 
Audiovisual P roducts  Panel  Report , China – Measures Affecting Trading Rights and Distribution 
Services for Certain Publications and Audiovisual Entertainment Products , 
WT/DS363/R  and Corr.1, adopted 19  January  2010, as modified by 
Appellate  Body Report WT/DS363/AB/R, DSR 2010:II, p. 261  
China – Raw Materials  Appellate  Body Reports, China – Measures Related to the Exportation of Various 
Raw Materials , WT/DS394/AB/R  / WT/DS395/AB/R  / WT/DS398/AB/R , adopted 
22 February  2012, DSR 2012:VII, p. 3295  
China – Raw Materials  Panel  Report s, China – Measures Related to the Exportation of Various Raw 
Materials , WT/D S394/R , Add.1 and Corr.1 / WT/DS395/R , Add.1 and Corr.1 / 
WT/DS398/R , Add.1 and Corr.1, adopted 22  February  2012, as modified by 
Appellate  Body Reports WT/DS394/AB/R / WT/DS395/AB/R / WT/DS398/AB/R, 
DSR 2012:VII, p. 3501  
Colombia – Ports of Entry  Panel  Report , Colombia – Indicative Prices and Restrictions on Ports of Entry , 
WT/DS366/R  and Corr.1, adopted 20  May 2009, DSR 2009:VI, p. 2535  
Colombia – Textiles  Panel  Report , Colombia – Measures Relating to the Importation of Textiles, 
Apparel and Footwear , WT/DS461/R  and Add.1, adopte d 22 June 2016, as 
modified by Appellate  Body Report WT/DS461/AB/R, DSR 2016:III, p. 1227  
Colombia – Textiles  Appellate  Body Report, Colombia – Measures Relating to the Importation of 
Textiles, Apparel and Footwear , WT/DS461/AB/R  and Add.1, adopted 
22 June 2016, DSR 2016:III, p. 1131  
Dominican  Republic  – 
Import and Sale of 
Cigarettes  Appellate  Body Report, Dominican  Republic  – Measures Affecting the 
Importation and Internal Sale of Cigarettes , WT/DS302/AB/R , adopted 
19 May 2005, DSR 2005:XV, p. 7367  
EC – Bananas III  Appellate  Body Report, European  Communities  – Regime for the Importation, 
Sale and Distribution  of Bananas , WT/DS27/AB/R , adopted 25  September  1997, 
DSR 1997:II, p. 591  WT/DS592/R  
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  Short Title  Full Case Title and Citation  
EC – Bananas III 
(Article  21.5 – Ecuador II) / 
EC – Bananas III 
(Article  21.5 – US) Appellate  Body Reports, European  Communities  – Regime for the Importation, 
Sale and Distribution of Bananas – Second Recourse to Article  21.5 of the DSU 
by Ecuador , WT/DS27/AB/RW2/ECU , adopted 11  December  2008, and Corr.1 / 
European  Commu nities  – Regime for the Importation, Sale and Distribution of 
Bananas – Recourse to Article  21.5 of the DSU by the United  States , 
WT/DS27/AB/RW/USA  and Corr.1, adopted 22  December  2008, DSR 
2008:XVIII , p. 7165  
EC – Hormones  Appellate  Body Report, European  Communities  – Measures Concerning Meat 
and Meat Products (Hormones) , WT/DS26/AB/R , WT/DS48/ AB/R, adopted 
13 February  1998, DSR 1998:I, p. 135  
EC – IT Products  Panel  Report s, European  Communities  and its member States – Tariff 
Treatment of Certain Information Technology Products , WT/DS375/R  / 
WT/DS376/R  / WT/DS377/R , adopted 21  September  2010, DSR 2010:III, p. 
933 
EC – Seal Products  Appellate  Body Reports, European  Communities  – Measures Prohibiting the 
Importation and Marketing of Seal Products , WT/DS400/AB/R  / 
WT/DS401/AB/R , adopted 18  June 2014, DSR 2014:I, p. 7  
EC – Seal Products  Panel  Report s, European  Communities  – Measures Prohibiting the Importation 
and Marketing of Seal Products , WT/DS400/R  and Add.1 / WT/DS401/R  and 
Add.1, adopted 18  June 2014, as modified by Appellate  Body Reports 
WT/DS400/AB/R / WT/DS401/AB/R, DSR 2014:II, p. 365 
EC and certain member 
States – Large Civil Aircraft  Appellate  Body Report, European  Communities  and Certain Member States – 
Measures Affecting Trade in Large Civil Aircraft , WT/DS316/AB/R , adopted 
1 June 2011, DSR 2011:I, p. 7  
EU – Energy Package  Panel  Report , European  Union and its member States – Certain Measures 
Relating to the Energy Sector , WT/DS476/R  and Add.1, circulated to  WTO 
Members 10  August  2018, appealed  on 21 September 2018  
India – Autos  Panel  Report , India – Measures Affecting the Automotive Sector , WT/DS146/R , 
WT/DS175/R , and Corr.1, adopted 5  April 2002, DSR 2002:V, p. 1827  
India – Quantitative 
Restrictions  Panel  Report , India – Quantitative Rest rictions on Imports of Agricultural, 
Textile and Industrial Products , WT/DS90 /R, adopted 22  September  1999, 
upheld by Appellate  Body Report WT/DS90/AB/R, DSR 1999:V, p. 1799  
India – Solar Cells  Appellate  Body Report, India – Certain Measures Relating to Solar Cells and 
Solar Modules , WT/DS456/AB/R  and Add.1, adopted 14  October  2016, DSR 
2016:IV, p. 1827  
Indonesia – Chicken  Panel  Report , Indonesia – Measures Concerning the Importation of Chicken 
Meat and Chicken Products , WT/DS484/R  and Add.1, adopted 
22 November  2017, DSR 2017:VIII, p. 3769  
Indonesia – Import 
Licensing Regimes  Appellate  Body Report, Indonesia – Importation of Horticultural Products, 
Animals and Animal Products , WT/DS477/AB/R , WT/DS478/AB/R , and Add.1, 
adopted 22  November  2017, DSR 2017:VII, p. 3037  
Indonesia – Import 
Licensing Regimes  Panel  Report, Indonesia – Importation of Horticultural Products, Animals and 
Animal Products , WT/DS477/R , WT/DS478/R , Add.1 and Corr.1, adopted 
22 November  2017, as modified by Appell ate Body Report WT/DS477/AB/R, 
WT/DS478/AB/R , DSR 2017:VII, p. 3131  
Japan – Agricultural 
Products II  Appellate  Body Report, Japan – Measures Affecting Agricultural Products , 
WT/DS76/AB/R , adopted 19  March  1999, DSR 1999:I, p. 277  
Japan – Alcoholic Beverages 
II Appellate  Body Report, Japan – Taxes on Alcoholic Beverages , WT/DS8/AB/R , 
WT/DS10/AB/R , WT/DS11/AB/R , adopted 1  November  1996, DSR 1996:I, p. 97  
Japan – Apples  Appellate  Body Report, Japan – Measures Affecting the Importation of Apples , 
WT/DS245/AB/R , adopted 10  December  2003, DSR 2003:IX, p. 4391  
Japan – Film Panel  Report , Japan – Measures Affecting Consumer Photographic Film and 
Paper , WT/DS44/R , adopted 22  April 1998, DSR 1998:IV, p. 1179  
Korea – Dairy Appellate  Body Report, Korea – Definitive Safeguard Measure on Imports of 
Certain Dairy Products , WT/DS98/AB/R , adopted 12  January  2000, DSR 2000:I, 
p. 3 
Korea – Various Measures 
on Beef  Appellate  Body Report, Korea – Measures Affecting Imports of Fresh, Chilled 
and Fro zen Beef , WT/DS161/AB/R , WT/DS169/AB/R , adopted 10  January  2001, 
DSR 2001:I, p. 5  
Mexico – Corn Syrup 
(Article  21.5 – US) Appellate  Body Report, Mexico – Anti-Dumping Investigation of High Fructose 
Corn Syrup (HFCS) from the United  States  – Recourse to Article  21.5 of the 
DSU by the United  States , WT/DS132/AB/RW , adopted 21  November  2001, 
DSR 2001:XIII, p. 6675  
Mexico – Taxes on Soft 
Drinks  Appellate  Body Report, Mexico – Tax Measures on Soft Drinks and Other 
Beverages , WT/DS308/AB/R , adopted 24  March  2006, DSR 2006:I, p. 3  
Mexico – Taxes on Soft 
Drinks  Panel  Report , Mexico – Tax Measures on Soft Drinks and Other Beverages , 
WT/DS308/R , adopted 24  March  2006, as modified by Appellate  Body Report 
WT/DS308/AB/R, DSR 2006:I, p. 43  WT/DS592/R  
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  Short Title  Full Case Title and Citation  
US – 1916 Act (EC)  Panel  Report , United  States  – Anti-Dumping Act of 1916, Complaint by the 
European  Communities , WT/DS136/R  and Corr.1, adopted 26  September  2000, 
upheld by Appellate  Body Report WT/DS136/AB/R, WT/DS162/AB/R, DSR 
2000:X, p. 4593  
US – Carbon Steel  Appellate  Body Report, United  States  – Countervailing Duties on Certain 
Corrosion -Resistant Carbon Steel Flat Products from Germany , WT/DS213/AB/R  
and Corr.1, adopted 19  December  2002, DSR 2002:IX, p. 3779  
US – Carbon Steel  Panel  Report , United  States  – Countervailing Duties on Certain Corrosion -
Resistant Carbon Steel Flat Products from Germany , WT/DS213/R  and Corr.1, 
adopted 19  December  2002, as modified by Appellate  Body Report 
WT/DS213/AB/R, DSR 2002:IX, p. 3833  
US – Certain EC Products  Appellate  Body Report, United  States  – Import Measures on Certain Products 
from the Eu ropean  Communities , WT/DS165/AB/R , adopted 10  January  2001, 
DSR 2001:I, p . 373 
US – Clove Cigarettes  Appellate  Body Report, United  States  – Measures Affecting the Production and 
Sale of Clove Cigarettes , WT/DS406/AB/R , adopted 24  April 2012, DSR 
2012:XI, p. 5751  
US – Continued Zeroing  Appellate  Body Report, United  States  – Continued Existence and Application of 
Zeroing Methodology , WT/DS350/AB/R , adopted 19  February  2009, DSR 
2009:III, p. 1291  
US – Corrosion -Resistant 
Steel Sunset Review  Appellate  Body Report, United  States  – Sunset Review of Anti -Dumping Duties 
on Corrosion -Resistant Carbon Steel F lat Products from Japan , 
WT/DS244/AB/R , adopted 9  January  2004, DSR 2004: I, p. 3  
US – Gambling  Appellate  Body Report, United  States  – Measures Affecting the Cross -Border 
Supply of Gambling and Betting Services , WT/DS285/AB/R , adopted 
20 April 2005, DSR 2005:XII, p. 5663 (and Corr.1, D SR 2006:XII, p. 5475)  
US – Gasoline  Appellate  Body Report, United  States  – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R , adopted 20  May 1996, DSR 1996:I, p. 3  
US – Large Civil Aircraft  (2nd 
complaint)  Appellate  Body Report, United  States  – Measures Affecting Trade in Large Civil 
Aircraft (Second Complaint) , WT/DS353/AB/R , adopted 23  March  2012, DSR 
2012:I, p. 7  
US – Poultry (China)  Panel  Report , United  States  – Certain Measures Affecting Imports of Poultry 
from China , WT/DS392/R , adopted 25  October  2010, DSR 2010:V, p. 1909  
US – Shrimp  Appellate  Body Report, United  States  – Import Prohibition of Certain Shrimp 
and Shrimp Products , WT/DS58/AB/R , adopted 6  November  1998, DSR 
1998:VII, p. 2755  
US – Shrimp  Panel Report , United  States  – Import Prohibition of Certain Shrimp and Shrimp 
Products , WT/DS58/R  and Corr.1, adopted 6  November  1998, as modified by 
Appellate  Body Report WT/DS58/AB/R, DSR 1998:VII, p. 2821  
US – Shrimp (Ecuador)  Panel  Report , United  States  – Anti-Dumping Measure on Shrimp from Ecuador , 
WT/DS335/R , adopted on 20  February  2007, DSR 2007:II, p. 425  
US – Softwood Lumber IV 
(Article  21.5 – Canada)  Appellate  Body Report, United  States  – Final Countervailing Duty Determination 
with Respect to Certain Softwood Lumber from Canada – Recourse by Canada 
to Article  21.5 of the DSU , WT/DS257/AB/RW , adopted 20  December  2005, 
DSR 2005:XXIII, p. 11357  
US – Superfund  GATT Panel  Report , United  States  – Taxes on Petroleum and Certain Imported 
Substances , L/6175, adopted 17  June 1987, BISD  34S/136  
US – Wool Shirts and 
Blouses  Appellate  Body Report, United  States  – Measure Affecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R , adopted 23  May 1997, and 
Corr.1, DSR 1997:I, p. 323  
 
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  EXHIBITS REFERRED TO IN THIS REPORT  
Exhibit  Short title  
(if applicable)    Description/Long title  
EU-1(b)1 Law No.  4/2009  Republic of Indonesia Law on Mineral and Coal Mining, Law No.  4 of 
12 January  2009 
EU-2(b) Law No.  3/2020  Law of the Republic of Indonesia Number 3 of 2020 on Amendment 
of Law Number 4 of 2009 on Mineral and Coal Mining  
EU-3(b) Government Regulation 
No. 23/2010  Regulation of the Government No.  23/2010 of 1  February  2010 
EU-4(b) MEMR Regulation 
No. 7/2012  Minister of Energy and Mineral Resources of the Republic of 
Indonesia Number 7 Year 2012 concerning increasing added value 
of minerals through processing and refining of minerals activities  
EU-5(b) MEMR Regulation 
No. 11/2012  Minister of Energy and Mineral Resources of the Republic of 
Indonesia Number 11 Year 2012 concerning amendment to Minister 
of Energy and Mineral Resources Regulation Number 07 Year 2012  
concerning increasing added value of minerals through processing 
and refining of minerals activities  
EU-6(b) MEMR Regulation 
No. 20/2013  Minister of Energy and Mineral Resources of the Republic of 
Indonesia Number 20 Year 2013 concerning second amendment to 
Minister of Energy and Mineral Resources Regulation Number 07 
Year 2012 concerning increasing added value of minerals through 
processing and refining of minerals activities  
EU-7(b) MEMR Regulation 
No. 1/2014  Minister of Energy and Mineral Resources of the Republic of 
Indonesia Regulation Number 1 Year 2014 concerning increasing 
added value of minerals through domestic processing and refining 
of mineral activities  
EU-8(b) MOT Regulation 
No. 1/2017  Regulation of the Minister of Trade of the Republic of Indonesia 
Number : 01/M -DAG/PER/1/2017  concerning export provisions for 
processed and purified mining products  
EU-9(b) MEMR Regulation 
No. 25/2018  Regulation of Minister of Energy and Mineral Resources of the 
Republic of Indonesia Number 25 Year 2018 regarding minerals and 
coal mining busines s 
EU-10(b)  MEMR Regulation 
No. 11/2019  Regulation of the Minister for Energy and Mineral Resources of the 
Republic of Indonesia Number 11 Year 2019 regarding second 
amendment of the Regulation of the Minister of Energy and Mineral 
Resources Number 25 Year  2018 on mineral and coal mining 
businesses   
EU-11(b)  MOT Regulation 
No. 96/2019  Regulation of the Minister of Trade of the Republic of Indonesia 
Number 96 of 2019 on export provisions for processed and purified 
mining products  
EU-12(b)  MEMR Regulation 
No. 7/2020  Regulation of the Minister of Energy and Mineral Resources of the 
Republic of Indonesia Number 7 of 2020 on procedures for the 
granting of areas, licensing, and reporting in relation to mineral and 
coal-mining business activities  
EU-16 
(rev) Medium -Term National 
Development Plan 
(RPJMN) 2020 –2024 Presidential Regulation No 18 of 2020 on Medium -Term National 
Development Plan (RPJMN) 2020 –2024, signed by President Joko 
Widodo on 17  January  2020 and entered into force on 
20 January  2020 
EU-17 
(rev) Government Regulation 
No. 14 of 2015, Master 
Plan of National Industry 
Development 2015 -2035 Government Regulation No 14 of 2015 on Master Plan of National 
Industry Development 2015 – 2035, signed by President Joko 
Widodo and entered into force on 6  March  2015 
EU-18 
(rev) Presidential Regulation 
No. 2 of 2018, National 
Industrial Policy (2015 -
2019)  Presidential Regulation No 2 of 2018 on National Industrial Policy 
2015-2019, signed by President Joko Widodo on 2  February  2018 
and entered in to force on 6  February  2018 
EU-20 The Indonesian 
Government 's Arguments 
to WTO Regarding the 
Ban on Nickel Exports, 
5 December  2019 Larissa Huda, "The Indonesian Government 's Arguments to WTO 
Regarding the Ban on Nickel Exports ", 5 December  2019, availabl e 
at https://bisnis.tempo.co/read/1280152/ini -argumentasi -
pemerintah -unt  
 
1 The European  Union  provided two versions of exhibits that were originally published in Bahasaa 
Indonesian : version (a) in the original language and version (b) in English. English is an official language of the 
WTO and the working language of the Panel. The Panel, therefore , has systematically referred to version (b) of 
the EU exhibits in the Report.  WT/DS592/R  
BCI deleted , as indicated [[***]]  
- 10 - 
 
  Exhibit  Short title  
(if applicable)    Description/Long title  
EU-21  Transcript of President Joko  Widodo i's Speech (translated) at the 
groundbreaking ceremony of PT Freeport Indonesia 's (PTFI) new 
copper smelter, at the Gresik Special Economic Zone, East Java , 
12 October  2021 
EU-22  "Remarks of President of the Republic of Indonesia at the Opening 
Inauguration of the 2021 National Coordi nation Meeting and 
Investment Service Award, at Ballroom of the Ritz -Carlton Hotel at 
Pacific Place, SCBD, 24  November  2021, Special Capital Region of 
Jakarta " 
EU-23 President Joko Widodo 
Inaugurates Nickel 
Smelter in SE Sulawesi, 
27 December  2021 President Jokowi Inaugurates Nickel Smelter in SE Sulawesi, Office 
of Assistant to Deputy Cabinet Secretary for State Documents & 
Translation, 27 December  2021 
EU-24 Bisnis Indonesia 
Interview with President 
Joko Widodo, 
10 January  2022 "SPECIAL INTERVIEW : President Joko Widodo openly talks about 
coal exports and the next targets ", Bisnis Indonesia Team – 
Bisnis.com 10  January  2022 
EU-27 Macquarie, Commodities 
Outlook, M. Garvey and J. 
Lennon, March 2021  Macquarie, Commodities Outlook, Marcus Garvey & Jim Lennon, 
March 2021  
EU-28  Ministry of Energy and Mineral resources, Government of Indonesia, 
Press Release N umber:  253.Pers./04/SJI/2020 "Pushing Domestic 
Nickel Market Growth, Government Sets Reference Prices of 
Minerals (RPM) Regulations " 
IDN-1 MEMR, Indonesian Mining 
Guidance (2020)  Directorate General of Mineral and Coal MEMR, Indonesian Mining 
Guidance (2020)  
IDN-4  A. van der Ent, A.J.M. Baker, M.M.J. van Balgooy, A. Tjoa, 
"Ultramafic ni ckel laterites in Indonesia (Sulawesi, Halmahera): 
Mining, nickel hyperaccumulators and opportunities for 
phytomining", Journal of Geochemical Exploration, Vol. 128 (2013) 
72-79 
IDN-5  B. Devi, D. Prayogo, "Mining and Development in Indonesia: An 
Overview of the Regulatory Framework and Policies", International 
Mining for Development Centre: Action Research Report, (March 
2013)  
IDN-7  PWC, "Mining in Indonesia", Investment and Taxation Guide , 11th 
ed., (June 2019)  
IDN-11 Nickel Institute, "About 
nickel", (last accessed 
20 August  2021)  Nickel Institute, "About nickel", available at: 
https://nickelinstitute.org/about -nickel/ (last accessed 20 August 
2021)  
IDN-12  Minerals UK, "Nickel", British Geological Survey, Natural 
Environment Research Council , (September 2008)  
IDN-13  INSG, Report on Nickel Production and Usage in Indonesia , 
(February 2020)  
IDN-15 Sayoga Gautama Report  Expert Report of R. Sayoga Gautama (3  September  2021)  
IDN-16 IEA, Special Report on 
the Role of Critical 
Minerals in Clean Energy 
Transition (2021)  IEA, "The Role of Critical Minerals in Clean Energy Transition", 
World Energy Outlook Special Report  (2021)  
IDN-18 
(BCI)  Maryono  Report  Expert Report of A. Maryono (4  September  2021)  
IDN-19  A. Dalvi, W. Bacon, R. Osborne, "The Past and the Future of Nickel 
Laterites", PDAC 2004 International Convention, Trade Show & 
Investor Exchange , 7-10 March  2004 
IDN-20  USGS, Excel of "Nickel Reserves"  
IDN-21  INSG, "Production, Usage and Price", available at 
https://insg.org/index.php/about -nickel/production -usage/ (last 
accessed 20  August  2021)  
IDN-22  Fraser, Jake; Anderson, Jack; Lazuen, Jose; Lu, Ying; Heathman, 
Oliver; Brewster, Neal; Bedder, Jack; Masson, Oliver, Study on 
future dem and and supply security of nickel for electric vehicle 
batteries , Publications Office of the European  Union , Luxembourg, 
2021 
IDN-23 UNCTAD, Lessons from 
Indonesia's ban on nickel 
exports, Background 
document  K. Terauds, Using trade policy to drive value addition: Lessons from 
Indonesia's ban on nickel exports. Background document to the 
Commodities and Development Report , Special Unit on 
Commodities UNCTAD, 2017  WT/DS592/R  
BCI deleted, as indicated [[***]]  
- 11 - 
 
  Exhibit  Short title  
(if applicable)    Description/Long title  
IDN-24  MEMR, Excel of "Production and Sales of Nickel Ore from 2010 - 
2020"  
IDN-25 
(BCI)  Sample of Nickel Ore Sales Contract 1  
IDN-26  The White House, Building Resilient Supply Chains, Revitalizing 
American Manufacturing, and Fostering Broad -Based Growth – 100- 
day Reviews under Executive Order 14017  (June 2021), 
Washington  
IDN-30 MOT Regulation 
No. 96/2019  MOT Regulation 96/2019  
IDN-33 MEMR Regulation  
No. 5/2017  MEMR Regulation 5/2017  
IDN-37  National Standardization Agency, Indonesian National Standard 
(SNI) , 2019 Ed.  
IDN-38  Kode KCMI IAGI -PERHAPI , Indonesian Joint Committee for Mineral 
Reserves KCMI - Code, 2017 Ed.  
IDN-42  CRIRSCO, Standard Definitions and International Report Template , 
October 2012  
IDN-45 JORC Code  Australasian Code for Reporting of Exploration Results, Mineral 
Resources and Ore Reserves  (The JORC Code), 2012 Ed.  
IDN-48  MEMR, Excel of "Nickel Data 2012 – 2020"  
IDN-50  Bank Indonesia, "Gross Domestic Product by Industrial Origin at 
Current Prices", Indonesian Economic and Financial Statistics  
(2021), 226 -227 
IDN-51  NIKKEI Asia, "Indonesia teams with LG to build $1.2bn battery 
plant" (25  May 2021), available at: 
https://asia.nikkei.com/Business/Automobiles/Indonesia -teams – 
with-LG-to-build-1.2bn -battery -plant(last accessed 
30 August  2021)  
IDN-53  Law No.  32/2009  
IDN-56 MEMR Regulation 
No. 26/2018  MEMR Regulatio n 26/2018  
IDN-58 
(BCI)   Sample of Nickel Ore Sales Contract 2  
IDN-62 UNESCAP, 1992 
Environmental Impact 
Assessment, Guidelines 
for Mining Development  UNESCAP 1992. Environmental Impact Assessment, Guidelines for 
Mining Development , p. 6. New York/Bangkok: UN Econ. Soc. 
Comm. Asia Pacific  
IDN-63  G. Bridge, "Contested Terrain: Mining and the Environment", 
Annual Review of Environment and Resource  (2004), Vol. 29, 205 -
259 
IDN-64  AEER, Supply of Nickel Battery Industry from Indonesia and 
Ecological Social Issues, Action for Ecology and Emancipation of 
People  (December 2020)  
IDN-65 NIWA, "Sediment and 
Mining" (9  March  2021)  NIWA, "Sediment and Mining" (9  March  2021), available at 
https://niwa.co.nz/our -science/freshwater/tools/kaitiaki_ 
tools/land -use/mining/impacts/sedimentation -and-mining (last 
accessed 20  August  2021)  
IDN-66 Clean Technica, Image of 
Indonesia at "Electric 
Vehicles:  
The Dirty Nickel 
Problem", (Exhibit IDN -
66), available at: 
https://cleantechnica.com 
/ 
2020/09/27/electric -
vehicles -the-dirty-nickel -
problem/  (last accessed 
30 August  2021)  DigitalGlobe Earthstar Geographics, Image of Indonesia, available 
at: Clean Technica, "Electric Vehicles: The Dirty Nickel Problem" 
(27 September  2020), available at: 
https://cleantechnica.com/2020/09/27/electric -vehicles -the-dirty-
nickel -problem/   (last accessed 30  August  2021)  
IDN-67  Agricultural and Environmental Policy Minutes, Formulating Policies 
in Addressing the Environmental Damage Due to Nickel Mine 
Activities in Tinanggea Sub -District, South Konawe Regency , Vol. 4 
No. 2, August  2017: 125 -142 
IDN-68  WALHI, Study Report on Environmental Conditions around Coastal 
Sea near the Mining Area due to the Nickel Industry in Morowali 
regency. Central Sulawesi, Kolaka and North Konawe Regencies, 
Southeast Sulawesi  (2021)  WT/DS592/R  
BCI deleted , as indicated [[***]]  
- 12 - 
 
  Exhibit  Short title  
(if applicable)    Description/Long title  
IDN-69  Images of Environmental Destruction in Indonesia  
IDN-70  World Bank, "The impact of a nickel mine in Tanjung Buli, 
Indonesia" (27  March, 2009), available at: 
https://www.youtube.com/watch?v=ToiPA7RThSQ   (last accessed 
30 August  2021)  
IDN-71 
(BCI)  Sample of Nickel Ore Sales Contract 3  
IDN-78  Financial Times, "Indonesia and Foxconn in talks over electric 
vehicle investment" (01  November  2021), available at: 
https://www.ft.com/content/f1a805aa -82ac-4f24-ad22- 
58e43712091e (last accessed 11  November  2021)  
IDN-91 BPS Export Data 
Indonesia  Excel of "BPS Export Data Indonesia"  
IDN-92  Press Release from the MEMR, 2  September  2019 
IDN-97 MEMR Director General 
Circular No.  741/2021  MEMR Director General Circular 741/2021  Regarding 
Implementation of the Use of Competent Person in the Estimation 
of Mineral and Coal Resources and Reserves  
IDN-99  Nikkei Asia, Automobiles "Indonesia's electric car dreams at odds 
with deforestation pledge", available at: 
https://asia.nikkei.c om/Business/Automobiles/Indonesia -s-electric -
car-dreams -at-odds-with-deforestation -pledge   (last accessed 
21 January  2022)  
IDN-100  BPS, Excel of "GRDP of South Sulawesi, Central Sulawesi and North 
Maluku"  
IDN-106  Reuters, "Update 1 – Indonesia Stays Ch ina's Second -Biggest 
Nickel Ore Supplier Despite Export Ban (January 2021)", available 
at https://www.reuters.com/article/china -economy -trade-nickel -
idUSL1N2JV0FP (last accessed 20  January  2022) 
IDN-108  The Pan -European Reserves and Resources Reporting Committee 
(PERC asbl), Pan -European Standard for the Public Reporting of 
Exploration Results, Mineral Resources and Mineral Reserves 
(1 October  2021)  
IDN-109 Sayoga Gautama 
Supplemental Expert 
Report, 17  March  2022 Supplemental Expert Report of R. Sayoga Gautama 
(17 March  2022)  
IDN-110 
(BCI)   Criminal Investigation Agency, Excel of "Recap of Nickel Criminal 
Case handled by the Police"  
IDN-111 
(BCI)   Expert Affidavit of [[***]] (15 March  2022)  
IDN-113 
(BCI)   Expert Affidavit of [[***]] (17 March  2022)  
IDN-114 
(BCI)   Sample of Nickel Ore Sales Contract 4  
IDN-115 
(BCI)   Sample of Nickel Ore Sales Contract 5  
IDN-116 
(BCI)   Sample of Nickel Ore Sales Contract 6  
IDN-123 
(BCI)   MOT, Excel of "Approved Export Applications"  
IDN-127 
(BCI)   MEMR, Presentation on "The Role of Minerals in the Development of 
Indonesia's Battery Industry" (10  September  2021)  
 WT/DS592/R  
BCI deleted, as indicated [[***]]  
- 13 - 
 
  ABBREVIATIONS USED IN THIS REPORT  
Abbreviation  Description  
AMDAL  Environmental impact analysis   
BCI Business Confidential Information  
CRIRSCO  Committee for Mineral Reserves International Reporting Standards  
dmt Dry metric tonne  
DPR Domestic Processing Requirement  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
GATT  1994 General Agreement on Tariffs and Trade 1994  
GDP Gross domestic product  
GRDP  Gross regional domestic product  
HGSO  High-grade saprolite ore  
HPAL High Pressure Acid Leach  
HS  Harmonized system  
IEA International Energy Agency  
IPR Community Mining Licen ces 
IUP Mining Licen ces 
IUPK Special Mining Licen ces 
KK Contract of Work  
LGSO  Low-grade saprolite ore  
MEMR  Ministry of Energy and Mineral Resources  of the Republic of Indonesia  
MOT  Minister of Trade of the Republic of Indonesia  
RIPIN  National Industry Development Master Plan 2015 -2035  
RKAB  Work Plan and Budget  
RKEF Rotary Kiln Electric Furnace  
SCM Agreement  Agreement on Subsidies and Countervailing Measures  
USGS  United  States  Geological Survey  
WTO World Trade Organization  WT/DS592/R  
BCI deleted , as indicated [[***]]  
- 14 - 
 
  1  INTRODUCTION  
1.1.  This dispute concerns Indonesia's imposition of two measures that the European  Union  alleges 
prevent the export of nickel ore from Indonesia. The European  Union  challenges a prohibition on the 
exportation of nickel ore as well as another measure that requires that all nickel ore be processed 
domestically.  
1.1  Complaint by the European  Union  
1.2.  On 22 November  2019, the European  Union  requested consultations with Indonesia pursuant 
to Articles 1 and 4 of the Understanding on Rules and Procedures Governing the Settlement of 
Disputes (DSU) and Article  XXII:1 of the General Agreement on Tariffs and Tr ade 1994 (GATT  1994) 
and Article  4.1 of the Agreement on Subsidies and Countervailing Measures (SCM  Agreement ) with 
respect to the measures and claims set forth below.2 
1.3.  Consultations were held on 30  January  2020, but they were unsuccessful.  
1.2  Panel establis hment and composition  
1.4.  On 14  January  2021, the European  Union  requested the establishment of a panel pursuant to 
Article  6 of the DSU with standard terms of reference.3 At its meeting on 22  February  2021, the 
Dispute Settlement Body (DSB) established a panel pursuant to the request of the European  Union  
in document WT/DS 592/3 , in accordance with Article  6 of the DSU.4 
1.5.  The Panel's terms of reference are the following:  
To examine, in the light of the r elevant provisions of the covered agreements cited by 
the parties to the dispute, the matter referred to the DSB by the European  Union  in 
document WT/DS592/3 and to make such findings as will assist the DSB in making the 
recommendations or in giving the ru lings provided for in those agreements.5 
1.6.  On 19 April 2021, the European  Union  requested the Director -General to determine the 
composition of the panel, pursuant to Article  8.7 of the DSU . On 29  April 2021, the Director -General 
accordingly composed the Panel as follows:  
Chairperson:  Ms Leora BLUMBERG  
 
Members:   Mr Gonzalo DE LAS CASA S SALINAS  
Ms Sanji M. MONAGENG  
 
1.7.  Brazil, Canada, China, India,  Japan, Korea, the Russian  Federation , the Kingdom of Saudi 
Arabia, Singapore, Chinese Taipei, Türkiye6, Ukraine, the United Arab Emirates, the United Kingdom, 
and the United  States  reserved their rights to participate in the Panel proceedings as third parties.7 
1.3  Panel proceedings  
1.8.  After cons ultation with the parties, the Panel adopted its Working Procedures8,  timetable , and 
Additional Working Procedures Concerning Business Confidential Information (BCI)9 on 
28 May 2021. The Panel amended its timetable on 29  June and 5  October  2021,  and 
17 August  2022. 
 
2 See WT/DS592/1. The Panel notes that the European  Union  did not advance claims under the 
SCM Agreement in the panel request or in its submissions before the Panel.  
3 Request for the establishment of a panel by the European  Union , WT/DS592/3 (European  Union 's 
panel request).  
4 See WT/DSB/M/449.  
5 WT/DS592/4.  
6 Formerly "Turkey" (see WT/INF/43/Rev.23).  
7 WT/DS592/4.  
8 Working Procedures of the Panel (Annex  A-1). 
9 Additional Wor king Procedures Concerning Business Confidential Information (Annex  A-2). WT/DS592/R  
BCI deleted, as indicated [[***]]  
- 15 - 
 
  1.9.  In light of the rapidly changing sanitary situation with respect to the COVID -19 pandemic , the 
Panel committed in its communication of 28  May 2021 transmitting the Working Procedures, 
timetable,  and BCI Procedures  to inform the parties by 30  September  2021 as to whether the Panel 
would hold the first substantive meeting in -person or remotely.  
1.10.   On 23  September  2021, the Panel informed the parties that due to sanitary requirements for 
both outbound and inbound travellers in the places of residence  of the panelists, the Panel would be 
unable to attend the first substantive meeting in Geneva during the week of 15  November  2021. 
That same day, the Panel sent to the parties draft Additional Working Procedures Concerning 
Substantive Meetings with Remote  Participation10 to complement the Working Procedures with 
respect to the conduct of the substantive meeting, and a proposed amended timetable reflecting the 
need to spread the meeting over more days due to the time differences between the various 
particip ants. 
1.11.   The European  Union  informed the Panel that it had no comments on the Panel's draft 
Additional Working Procedures Concerning Substantive Meetings with Remote Participation or the 
proposed amended timetable. Indonesia objected to the Panel's proposal to conduct the first 
substantive meeting with the parties and third parties remotely and requested that the Panel hold 
in-person hearings. Indonesia suggested that the Panel either consider postponing the first 
substantive meeting or holding it in hybrid format if applicable quara ntine requirements rendered it 
more difficult for individual panelists to attend the substantive meeting in -person. On 
5 October  2021 the Panel informed the parties that it was  not in a position to hold an in -person first 
substantive meeting inter alia due to restrictions on travel and meeting room capacity at the WTO. 
The Panel further noted that it had based its decision on preserving the due process rights of all 
parties and that delaying the meeting until an uncertain future date could prevent the Panel  from 
ensuring the prompt settlement of the dispute in accordance with Article  3.3 of the DSU. The Panel 
therefore confirmed its intention to hold the first substantive meeting remotely.11 
1.12.   The Panel held a first substantive meeting with the parties on 15 a nd 17 -19 November 2021. 
A session with the third parties took place on 18  November  2021. The Panel conducted the first 
substantive meeting and third -party session via secure videoconference.  
1.13.   The Panel held an in -person second substantive meeting with the parties on 
22-23 March 2022.  
1.14.   On 7 June 2022, the Panel issued the descriptive part of its Report to the parties. The Panel 
issued its Interim Report to the parties on 29 August  2022. The Panel issued its Final Report to the 
parties on 17 October  2022. 
2  FACTUAL ASPECTS  
2.1  The measures at issue  
2.1.  The European  Union 's claims concern two measures, namely a prohibition on the exportation 
of nickel ore and a requirement that all nickel ore be processed (purified or refined) domestically. 
The European  Union  refers t o the latter measure as the Domestic Processing Requirement (DPR).  
2.1.1   Export prohibition of nickel ore  
2.2.  The European  Union  describes the export prohibition of nickel ore in its consultations request 
as follows:  
As part of the implementation of a national plan  to develop certain downstream industry 
sectors including that of stainless steel production, Indonesia introduced a number of 
limitations on exports of raw materials. In particular, exports of nickel ore were 
prohibited in Indonesia in 2014. In 2017, Indo nesia partially relaxed the export ban by 
temporarily allowing exports of certain minerals, including nickel ore with a 
 
10 Additional Working Procedures Concerning Substantive Meetings with Remote Participation 
(Annex  A-3). 
11 Panel's communication to the parties, 5  October  2021.  WT/DS592/R  
BCI deleted , as indicated [[***]]  
- 16 - 
 
  concentration below 1.7%, subject to certain additional requirements (see below). It 
was foreseen that these requirements be temporary a nd that the full export prohibition 
be reinstated on 11  January  2022. However, in August 2019 Indonesia's Ministry of 
Energy and Mineral Resources (MEMR) established that the validity of certain documents 
necessary to export low -concentration nickel ore ex pire on 31  December  2019, thereby 
effectively reinstating the total export prohibition of nickel ore as of 1  January  2020.  
The temporary permission to export low -concentration nickel ore has been without 
prejudice to the continued prohibition to export nic kel ore with a concentration above 
1.7%, which may not be exported even during the temporary relaxation of the export 
ban. Exports of nickel ore is also subject to the additional export requirements as 
described below.12 
2.3.  In its request for establishment of  a panel the European  Union  describes the measure at issue 
thusly:  
Indonesia has restricted exports of nickel ore to different extents and under different 
rules since at least 2014. In January 2014 nickel was excluded from the regime on the 
necessary processing and purification of mining commodities for export, which 
effectively outlawed exports of nickel ore. From January 2017 to December 2019 
exports of nickel ore with a concentration below 1.7% were permitted subject to certain 
conditions,  while those of nickel ore with a higher concentration remained prohibited. 
Since January 2020 all exports of nickel ore, regardless of its concentration, are 
banned.13 
2.4.  In its request for establishment of a panel, the European  Union  also provides the follo wing 
illustrative list of legal instruments through which this prohibition has been implemented over time14:  
i. Law No.  4/2009 on Coal and Mining;  
ii. Regulation of the Minister of Energy and Mineral Resources of the Republic of Indonesia 
(MEMR Regulation) No.  7/2012 concerning increasing added value of minerals through 
processing and refining of minerals activities of 6  February  2012;  
iii. MEMR Regulation No.  11/2012 amending MEMR Regulation No.  7/2012 of 
16 May 2012;  
iv. MEMR Regulation No.  20/2013 amending MEMR Regulat ion No.  7/2012 of 
1 August  2013;  
v. MEMR Regulation No.  1/2014 concerning increasing added value of minerals through 
domestic processing and refining of minerals activities of 11  January  2014;  
vi. Regulation of the Minister of Trade of the Republic of Indonesia ( MOT Regulation) 
No. 1/2017 concerning export provisions for processed and purified mining products 
of 9 January  2017;  
vii. MEMR Regulation No.  25/2018 concerning mineral and coal mining business of 
3 May 2018;  
viii. MEMR Regulation No.  11/2019 amending MEMR Regulatio n No.  25/2018 of 
28 August  2019;  
 
12 WT/DS592/1.  
13 WT/DS592/3.  
14 It should be noted that four of the legal instruments listed in the European  Union 's request for 
establishment of a panel (namely MEMR Regulation Nos. 7/2012, 11/2012, 20/2013, and 1/2014) were not 
expressly listed in the Europ ean Union 's consultations request even though they pre -date that request).  WT/DS592/R  
BCI deleted, as indicated [[***]]  
- 17 - 
 
  ix. MOT Regulation No.  96/2019 on export provisions for processed and purified mining 
products of 30  December  2019; and  
x. any annexes thereto, notices, preliminary findings, reviews, amendments, 
supplements, replacements, renewa ls, extensions, implementing measures or any 
other related measures.  
2.5.  In its first written submission, the European  Union  notes that since 1  January  2020 the export 
prohibition has, in particular, been implemented through Article  3 and Appendix  IV of the MOT 
Regulation No.  96/2019  and Article  1 paragraph 2 of the MEMR Regulation No.  11/2019 .15  
2.6.  Article  3 of MOT Regulation No.  96/2019 states that "[p] rocessed and/or Purified Mining 
Products and Mining Products in the form of raw material or ore with certain  criteria which export is 
restricted are as contained in Appendix IV, which constitutes an integral part of this Regulation of 
the Minister. "16 Appendix  IV is set out below in relevant part:  
Appendix  IV of MOT Regulation No.  96/201917 
 
MINING PRODUCTS WHOSE EXPORTS ARE PROHIBITED  
 
A. ORE/ RAW MATERIAL  
No.  Goods Description  Tariff Head/HS  
… … … 
8.  Nickel ore and its concentrate  2604.00.00  
… … … 
 
2.7.  Article  1 paragraph 2 of MEMR Regulation No.  11/2019  provides for the insertion of Article  62A 
into MEMR Regulation No.  25/2018. Pursuant to Article  62A, exports of nickel ore with a nickel 
content of <1 .7% were allowed until 31  December  2019. Previously,  Article  46 of MEMR Regulation 
No. 25/2018 (as amended by MEMR Regulation No.  50/2018) permi tted the  export  of nickel ore with 
a nickel content of <1 .7% (less than one point seven percent) until 11  January  2022.18 
2.8.  In its first written submission, the European  Union  reiterated that Indonesia had imposed an 
export prohibition since Janu ary 2014 and made specific reference to 
 
15 European  Union 's first written submission, paras.  24-26 (referring to  MOT Regulation No.  96/2019, 
(Exhibit EU -11(b) ) and MEMR Regulation No.  11/2019, ( Exhibit EU -10(b) )). The European  Union , as the 
complainant , placed English versions of the relevant Indonesian legal instruments on the record. Indonesia 
placed its own versions of some of the same documents on the record with its own submissions. The Panel 
raised the issue with the parties, and Indonesia has confirmed that it has no objection to the Panel relying 
upon the European  Union 's versions of the following legal instruments: Law No.  4/2009 (Exhibit EU -1(b)); Law 
No. 3/2020 (Exhibit EU -2(b)); Government Regulation No.  23/2010 (Exhibit EU -3(b)); MEMR Regulation 
Nos. 7/2012 (Exhibit EU -4(b)), 11/2012 (Exhibit EU -5(b)), 20/2013 (Exhibit EU -6(b)), 1/2014 (Exhibit EU -
7(b)), 25/2018 (Exhibit EU -9(b)), 11/2019 (Exhibit EU -10(b)) and 7/2020 (Exhibit EU -12(b)); and MOT 
Regulati on Nos. 1/2017 (Exhibit EU -8(b)) and 96/2019 (Exhibit EU -11(b)). Indonesia did note that Exhibit EU -
11(b) did not include Appendix  IV of that regulation. See Indonesia's response to Panel question No.  15. The 
Panel , therefore,  will use the Indonesian versi on of MOT Regulation No.  96/2019 (Exhibit IDN -30) when it 
refers to Appendix .  
16 MOT Regulation No.  96/2019, (Exhibit EU -11(b)).   
17 MOT Regulation No.  96/2019, (Exhibit IDN-30). 
18 MEMR Regulation No.  11/2019, (Exhibit EU -10(b)) : 
1. Provisions in Article  46 are revised to be written as follow:  
Article  46 
(1) The holders of Mining Business License (IUP) for Production Operation or Special Mining 
Business License (IUPK) for Production Operation can conduct the sales of nickel with a level of 
<1,7% (less than one point seven percent) or  washed bauxite with a level of A12O3 >42% 
(more than or equal to forty two percent) abroad in the specific quantities by using the Tariff 
Post/ HS (Harmonized System) in accordance with the provisions of the laws and regulations at 
the latest of the date of January  11, 2022.  
(2) The sales of nickel with a level of <1,7% (less than one point seven percent) or  washed 
bauxite with a level of A12O3 >42% (more than or equal to forty two percent) as referred to in 
Paragraph (1) is conducted with the conditions…  WT/DS592/R  
BCI deleted , as indicated [[***]]  
- 18 - 
 
  MEMR  Regulation  No. 1/2014.19 The European  Union  requested the Panel to make findings on the 
legal instruments that implemented the export prohibition  that were currently in force20, which, in 
its view , includ ed MEMR  Regulation No.  1/2014.21 In that regulation, Indonesia prohibited the 
exportation of all types of nickel ore from 12  January  2014 until 11  January  2017.22  
2.9.  For its part, Indonesia noted that MEMR Regulation No.  1/2014 was revoked by MEMR 
Regulation No.  5/2017 which, along with MOT Regulation No.  1/2017, continued the prohibition on 
the exportation of nickel ore but only with respect to nickel content over 1.7% from 12  January  2017 
until 11  January  2022.23 Both MEMR Regulation No.  5/2017 and MOT Regulation No.  1/2017 allowed 
for the export of nickel ore with a nickel content below 1.7%.24 These regulations were subsequently 
revoked by MEMR Regulation No.  25/2018 and MOT Regulation No.  96/2019, respectively. MEMR 
Regulation No.  25/2018, as amended by MEMR Regulation No.  11/2019, prohibits exportation of all 
types of nickel ore since 1  January  2020.25 MOT Regulation No.  96/2019 prohibits exportation of all 
types of nickel ore since 2  January  2020. Based on these regulations , as of 1  January  2020 the 
exportation of all nickel ore, regardless of nickel content, was prohibited.  
2.10.   In its first written submission, Indonesia noted that the European  Union  had included in its 
panel request several  legal instruments that had not been subject of consultat ions and that 
purportedly implemented the export prohibition on nickel ore , namely MEMR Regulation 
Nos. 7/2012, 11/2012, 20/2013, and 1/2014, and MOT  Regulation No. 96/2019 .26 Indonesia 
consider ed that the inclusion of MEMR Regulation Nos. 7/2012, 11/2012, 20/2013 and 1/2014   in 
the European  Union 's panel request "expanded the scope and changed the essence of the dispute" .27 
Indonesia argue d that the Panel should find that MEMR Regulation Nos. 7/2012, 11/2012, 20/2013 
and 1/2014  fall outside  its ter ms of reference. Indonesia clarified that if the European  Union  did not 
request the Panel to make findings on the above -mentioned legal instruments, Indonesia's "due 
process rights [would] not … be prejudiced  if the Panel were to address its jurisdictional  challenge 
together with the issuance of its report" .28  
2.11.   The European  Union  maintains that MEMR Regulation No.  1/2014 is within the Panel's terms 
of reference as it was described, although not explicitly named, in both the consultations request 
and the req uest for establishment of a panel.29 At the same time, the European  Union  clarified that 
it requests that the Panel make findings on the export prohibition that began with MEMR Regulation 
No. 1/2014 but also acknowledges that any findings or recommendation s should be addressed 
towards the legal instruments implementing the export prohibition that are legally in force.30 The 
European  Union  also acknowledges and accepts Indonesia's explanation that MEMR Regulation 
No. 1/2014 was repealed and replaced by MEMR Regulation No.  5/2017 , which was itself 
subsequently revoked and replaced .31  
2.12.   The Panel understands that the measure at issue is an exp ort prohibition that has been  in 
place since  January 2014 and is currently implemented through MEMR Regulation No.  11/2019 and 
MOT Regulation No.  96/2019 .32 The Panel, therefore, will make its findings on this basis and sees 
 
19 European  Union 's firs t written submission, para.  19, referring to MEMR Regulation No.  1/2014 
(Exhibit  EU-7(b)). 
20 European  Union 's opening statement at the first meeting of the Panel, para.  6. 
21 European  Union 's response to Panel question No.  20(b). 
22 MEMR Regulation No. 1/2014, (Exhibit EU -7(b)), Article  12(4).  
23 Indonesia's second written submission, para.  22, referring to  Article  22 of MEMR Regulation 
No. 5/2017 (Exhibit IDN -33). 
24 MEMR Regulation No.  5/2017 (Exhibit IDN -33) and MOT Regulation No.  1/2017 (Exhibit EU-8(b)). 
25 Before this amendment, MEMR Regulation No.  25/2018 prohibited exports of nickel ore with a nickel 
content over 1.7% while permitting exports of nickel ore with a nickel content below 1.7% provided that 
holders of IUP for Production Operation or IUPK for P roduction Operation had, inter alia,  a purification facility or 
were in the process of building one. See MEMR Regulation No.  25/2018, (Exhibit EU-9(b)), Arts. 17, 44, 46.  
26 Indonesia's first written submission, para.  71. 
27 Indonesia's first written submission, para.  72, referring to  Appellate  Body Report, Argentina – Import 
Measures , para.  5.3. 
28 Indonesia's first written submission, para.  76. 
29 European  Union 's response to Panel question Nos. 20 and 72.  
30 European  Union 's response to Panel question No.  20(b). 
31 European  Union 's response to Panel question No.  72. 
32 The Panel notes that the export ban was originally imposed in January 2014 through MEMR 
Regulation No.  1/2014. This MEMR Regulation was revoked by MEMR Regulation No.  5/2017, which partially 
 WT/DS592/R  
BCI deleted, as indicated [[***]]  
- 19 - 
 
  no need for a preliminary rulin g on its terms of reference with regard to the prohibition on the export 
of nickel ore.  
2.1.2   Domestic processing requirement on nickel ore  
2.13.   The European  Union  challenges the requirement whereby holders of mining business licen ce 
(IUP) for Production Operation, S pecial Mining Business Licen ce (IUPK) for Production Operation, 
and Mining Business Licen ce (IUP) for Production Operation specifically for the processing and/or 
purification of metallic mineral, non -metallic mineral, or rocks33 are required to process (pu rify or 
refine) nickel ore in Indonesia.  
2.14.   In its consultations request the European  Union  provides a narrative description of the 
measure as:  
Exports of certain mining products are subject to them undergoing an added value 
enhancement through certain proce ssing and/or purification activities in Indonesia as 
determined by the MEMR. This obligation is directed to holders of production permits 
and applies, among others, to nickel ore, iron ore and chromium, as well as to coal and 
coal products. As a result, mi nerals that have not undergone such processing and/or 
purification operations, as required by law, may not be exported. This obligation does 
not apply in cases of domestic interest or research and development.34 
2.15.   In its request for establishment of a panel,  the European  Union  describes the DPR as:  
Indonesia applies domestic processing requirements with regard to certain raw 
materials, notably nickel ore and iron ore, prior to them being exported. Domestic 
processing requirements oblige mining companies to en hance the value of the relevant 
raw materials through the conduct of certain processing and/or purification operations 
in Indonesia before exporting them.35 
2.16.   According to the European  Union , the DPR has "the consequence of preventing exports of the 
raw mate rials concerned unless they have been duly processed and/or purified" .36 The 
European  Union  also provides in its request for establishment of a panel an illustrative list of the 
legal instruments through which the DPR is implemented. These instruments are:  
i. Law Number No. 4/2009 on Coal and Mining.  
ii. Regulation of the Minister of Energy and Mineral Resources of the Republic of Indonesia 
(MEMR Regulation) No.  25/2018 concerning mineral and coal mining 
commercialisation of 3  May 2018.  
iii. MEMR Regulation No. 50/2018 amending MEMR Regulation No. 25/2018 of 
5 December  2018.  
 
lifted the export ban on nickel ore as from 12  January  2017 by allowing for the exportation of nickel  ore with a 
nickel content less than  1.7%. The prohibition of nickel ore with a nickel content over 1.7% remained  in place . 
MOT Regulation No . 1/2017, which entered into force on 1  February  2017, also provided for an export ban on 
nickel ore with a nickel content less than  1.7%. MEMR Regulation No. 5/2017 and MOT Regulation No.  1/2017 
were revoked by MEMR Regulation No.  25/2018  and MOT Regulation No.  96/2019, respectively.  MEMR 
Regulation No.  25/2018 set a deadline for the exportation of nickel ore with a n ickel content less than  1.7%, 
i.e. 11  January  2022. MEMR Regulation No.  11/2019 amended MEMR Regulation No.  25/2018 and established a 
prohibition on the exportation of all types of nickel ore as from 1  January  2020. MOT Regulation No.  96/2019 
confirmed tha t prohibition as from 2  January  2020 and revoked the approvals to export nickel ore.  
33 The names of the types of mining licence s available  were established in 2009 in the Law on Mineral 
and Coal Mining (Law No.  4/2009). Law No.  4/2009 was amended in 2020 by Law No.  3/2020. The 
amendments replaced this categorization. The text of the relevant regulations that the parties provided the 
Panel do es not reflect the 2020 amendments and throughout their argumentation the parties have utilized the 
pre-2020 nomenclature. The Panel, therefore, will continue to refer to the relevant licences using the 
nomenclature that was in force prior to 2020.  
34 WT/DS592/1.  
35 WT/DS592/3.  
36 WT/DS592/3.  WT/DS592/R  
BCI deleted , as indicated [[***]]  
- 20 - 
 
  iv. MEMR Regulation No. 11/2019 amending MEMR Regulation No. 25/2018 of 
28 August  2019. 
v. This request also covers any annexes thereto, notices, preliminary findings, reviews, 
amendments, supplements , replacements, renewals, extensions, implementing 
measures or any other related measures.37 
2.17.   The requirement to process or refine mining products domestically is imposed in 
Article  103(1) of Law No.  4/2009 , which states that "[t] he holders of IUP and IUPK […] must conduct 
mineral processing and/or refinery of mining products domestically."38 
2.18.   MEMR Regulation No.  25/2018 contains relevant articles that the European  Union  challenges 
with respect to a requirement to process or purify nickel ore domestically.39 First, Article  17, which 
is entitled "Mineral Sales of the results of Processing and/or Purification Abroad" , states in relevant 
part: 
(1) The holders of Mining Business License (IUP) for Production Operation, Special 
Mining Business License (IUPK) for Pro duction Operation, and Mining Business License 
(IUP) for Production Operation specifically for the processing and/or purification of 
metallic Mineral, nonmetallic Mineral, or rocks before conducting the sales activity 
abroad shall at first conducting the E nhancement of Added Values through the activities 
of Processing and/or Purification in accordance with the minimum limits of Processing 
and/or Purification as included in Appendix  I, Appendix  II, and Appendix  III which are 
the integral part of this Ministerial Regulation.  
 
(2) Type of mining commodities of metallic Mineral, nonmetallic Mineral, or rocks that 
have not been included in the Appendix  I, Appendix  II, and Appendix  III may only be 
sale abroad after the m inimum limits of the Processing and/or Purification is stipulated 
by the Minister.40 
2.19.   Secondly , Article  19(1) states that IUP and IUPK holders may conduct sales abroad of the 
specified metallic minerals that have met the minimum limits of purification and/o r non -metallic 
minerals that have met the minimum limits of processing. Article  19(2) permits other parties who 
process and/or purify minerals  to conduct sales abroad if they have met the requisite minimum limits 
for purification (in the case of metallic m inerals) or processing  (in the case of non -metallic minerals) . 
Article  19(3) exempts minerals used for domestic interest and research and development through 
the delivery of mineral samples abroad from the processing and purification limits.41  
2.20.   Finally, in  Chapter XV of MEMR Regulation No.  25/2018 in a section entitled "Transitional 
Provisions", Article  46 allowed IUP and IUPK holders to conduct sales abroad of nickel with a level 
of <1 .7% (less than one point seven percent) in accordance with the provision s of laws and 
regulations, up until 11  January  2022 if such sales are conducted by a licence  holder who has or is 
building a facility for purification and pays the relevant export duty.42 As noted in paragraph  2.7 
above, Article  1 paragraph 2 of MEMR Regulation No.  11/2019 added Article  62A of MEMR Regulation 
No. 25/2018 , which  remove d the permission to conduct sales abroad of nickel with a level of <1 .7% 
(less than one point seven percent) as of 1  January  2020.43 
 
37 WT/DS592/3.  
38 Law No.  4/2009, (Exhibit EU -1(b)), Article  103(1). 
39 Article  16 of MEMR Regulation No.  25/2018  also sets out a requirement that IUP and IUPK holders 
enhance added value of mineral and coal mining inc luding through the activities of processing and/or purifying 
metallic minerals. The European  Union , however, does not specifically challenge Article  16. 
40 MEMR Regulation No.  25/2018, (Exhibit EU -9(b)).  
41 MEMR Regulation No.  25/2018, (Exhibit EU-9(b)).  
42 MEMR Regulation No.  25/2018, (Exhibit EU -9(b)), Article  46. According to Article  46, "[h]as or is 
building the facility of Purification" can take the form of (a) building one's own purification facility or (b) 
cooperating to build a purificatio n facility through share ownership directly to the Business Entity of the holders 
of Mining Business Licence  (IUP) for Production Operation specifically for the processing and/or purification; or 
share ownership directly to the holders of Mining Business Licence  (IUP) for Production Operation specifically 
for the processing and/or purification at the Business Entity of the holders of Mining Business Licence  (IUP) for 
Production Operation or Special Mining Business Licence  (IUPK) for Production Operation.   
43 MEMR Regulation No.  11/2019, (Exhibit EU -10(b)).  WT/DS592/R  
BCI deleted, as indicated [[***]]  
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  2.21.   Indonesia's laws and regulations make a distinction between "processing" and "purification" 
or "refining".44 Indonesia has also explained  that the term "processing" has two meanings. It can 
refer to "all activity conducted to treat ore" or it can be understood as "an effort to improve the 
quality of Minerals that produce products with the same physical and chemical properties as the 
origin Minerals" .45 This latter definition is what is used in MEMR Regulation No.  25/2018. Indonesia 
confirmed that while some minerals can be both processed and purified (such as iron, manganese, 
or chromium) others (such as nickel or ba uxite) can only be purified .46 This is because any treatment 
to nickel will result in a change in its physical or chemical property.  The Panel notes that while MEMR 
Regulation No.  25/2018 uses the term "purification", Law No.  4/2009, as amended by Law 
No. 3/2020, refers to "refining". Indonesia has clarified that the distinction is merely an issue of 
translation and that the same Bahasa term 'pemurnian' is used in both legal instruments. The Panel, 
thus, understands that the terms refining and purification can be used interchangeably . When 
referencing exhibits or the arguments of the parties, the Panel will, therefore, use the term that 
appears in the exhibit or arguments.  
2.22.   Appendix  I of MEMR Regulation No.  25/2018  (reproduced below) sets forth the minimum 
limits of processing and purification referred to in Article  19 for each relevant ore or mineral. It 
contains a column for processing and a separate one for purification, recognizing that these are two 
separate an d distinct phases in production.   
Appendix  I of MEMR Regulation No.  25/2018  
LIMITATION OF MINIMUM PROCESSING AND PURIFICATION MINING MINERAL METAL 
COMMODITIES IN THE STATE  
Ore or  
Mineral  Processing  Purification  
Product  Quality  Product  Quality  
Nickel and / 
or cobalt 
(process 
smelting)  
a. Saprolite;  
b. Limonite    
Nickel mate, 
metal alloy,  
metal nickel 
and metal 
oxide  a. Ni Mate, Ni ≥ 70%;  
b. Metal FeNi, Ni ≥ 8 %;  
c. Nickel Pig Iron (NPI), 2% ≤ Ni <4% , and Fe ≥ 
75% ;  
d. Nickel Pig Iron (NPI), Ni ≥ 4%;  
e. Nickel Metal, Ni ≥ 93%; and / or  
f. Nickel Oksida (NiO), Ni ≥ 65 %.  
Nickel and / 
or cobalt  
(process 
[l]eaching) 
Limonite    
Metal, metal 
oxide, metal 
sulfide, mix 
it up 
hydroxide/ 
sulfide 
precipitate, 
and 
hydroxide 
nickel 
carbonate  a. Nickel Metal, Ni ≥ 93%;  
b. Mix Hydroxide Precipitate (MHP), Ni ≥ 25%;  
c. Mix Sulfide Precipitate (MSP), Ni ≥ 45%;  
d. Hydroxide Nickel Carbonate (HNC), Ni ≥ 40%;  
e. Nickel Sulphate and Nickel Sulfate Hydrate 
(NiSO4 and NiSO4xH2O), Ni ≥ 20%;  
f. Cobalt sulfate and Cobalt Sulfate Hydrate 
(CoSO4 and CoSO4.xH2O), Co ≥ 19 %;  
g. Nickel Chloride and Nickel Hydrate Chloride 
(NiCl2 and NiCl2.xH2O), Ni ≥ 20%;  
h. Cobalt Chloride and Cobalt Klorida Hydrate 
(CoCl2 and CoCl2.xH2O), Co ≥19%;  
i. Nickel Carbonate  (NiCO3), Ni≥40%;  
j. Cobalt Carbonate (CoCO3 ), Co ≥ 40% Co;  
k. Nickel Oxide (NiO), Ni ≥ 65%;  
l. Cobalt Oxide (CoO), Co ≥ 65%;  
m. Hydroxide Nickel (Ni(OH)2), Ni ≥ 50%;  
n. Cobalt Hydroxide (Co(OH)2), Co ≥ 50%;  
o. Sulfide Nickel (NiS), Ni ≥ 40%;  
p. Metal Cobalt, Co ≥ 93% ;  
q. Cobalt Sulfide (CoS), Co ≥ 40%; and / or  
r. Metal Chromium, Cr ≥ 99%.  
 
44 Indonesia's response to Panel question No.  66(a). 
45 Indonesia's response to Panel question No.  66(a) (referring to Article  1(20) of MEMR Regulation 
No. 25/2018) . 
46 Indonesia's response to Panel question N o. 66(a). WT/DS592/R  
BCI deleted , as indicated [[***]]  
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  Ore or  
Mineral  Processing  Purification  
Product  Quality  Product  Quality  
Nickel and / 
or cobalt 
(process 
reduction)  
a. Saprolite;  
b. Limonite    
Metal alloy  a. FeNi sponge (Sponge FeNi), 2% ≤ Ni <4%, and 
Fe ≥ 75%;  
b. FeNi sponge (Sponge FeNi), Ni ≥ 4%;  
c. Luppen FeNi, 2% ≤ Ni <4% and Fe ≥ 75%; and / 
or 
d. Luppen FeNi, Ni ≥ 4%;  
e. Nugget FeNi, 2% ≤ Ni <4%, and Fe ≥ 75%; and 
/ or 
f. Nugget FeNi , Ni ≥ 4%.  
 
2.23.   Indonesia has confirmed that the column for "processing" is blank  because nickel is a mineral 
that can only be purified or refined.47 Indonesia has further confirmed that the product resulting 
from the purification or refining of nickel ore ceases to be nickel ore and becomes a different product, 
such as nickel pig iron, fe rro nickel and nickel matte, which are classified under different codes in 
the Harmonized System.48 Thus, any products exported after compliance with MEMR Regulation 
No. 25/2018 would not be nickel ore, but another product.  
2.24.   In its first written submission, the European  Union  also identifies and requests findings on 
Article  66 of MEMR Regulation No.  7/2020  as one of the legal instruments through which the DPR is 
implemented.49 Article  66 of MEMR Regulation No.  7/2020  which is in a subdivision enti tled 
"Prohibitions" notes that holders of IUP and IUPK are prohibited from " sell[ing] products resulting 
from Mining abroad before carrying out processing and/or refineries domestically in accordance with 
provisions of laws and regulation s…".50 
2.25.   This regula tion was not explicitly mentioned in either the European  Union 's consultations 
request or its request for establishment of a panel. Indonesia considers that "the inclusion of MEMR 
Regulation 7/2020 [in] these proceedings would impermissibly expand the scop e and change the 
essence of this dispute" .51 The Panel will deal with this issue in section 7.1 below.  
2.2  Other factual aspects  
2.2.1   Nickel  
2.26.   Nickel is a naturally  occurring metallic element. It is the fifth most common element on earth 
and occurs extensively in the earth's crust and core.52 Economic concentrations of nickel occur in 
sulfide and laterite -type ore deposits.53 Nickel occurs naturally, principally as ox ides, sul fides, and 
silicates. There are many different nickel ores requiring a variety of technique s to extract the nickel. 
Improved technologies in mining, smelting, and refining, as well as increased capacities allow lower -
grade nickel ore to be utilized. Decreasing ore grade is, therefore, not necessarily a sign of 
diminishing resources , but a reflection of innovation and improvements made in mining and process 
 
47 Indonesia confirms that the relevant term in Bahasa Indonesian ("pemurnian") is translated as both 
"refining" and "purifying". See Indonesia's response to Panel question No.  66(a). 
48 Nickel pig iron is produced from low -grade laterite ores, it can be used to produce the low -nickel 200 -
series stainless steels and contains only 3 -5% of nickel and higher concentrations of sulfur and phosphorus 
than ferronickel. Ferronickel is an alloy normally produced by direct smelting of lateritic ore that conta ins 20 -
38% of nickel. Nickel matte is an intermediate product of nickel metallurgy that contains approximately 70% of 
nickel and is used in the preparation of refined metal. It is produced in smelters and comprises a mixture of 
nickel and iron sulfides. Th e HS codes for nickel ore, nickel pig iron, ferronickel and nickel matte are 260400, 
720150, 720260, and 750110, respectively. See Minerals UK, "Nickel", British Geological Survey, Natural 
Environment Research Council , (September 2008), (Exhibit IDN-12), p. 10; and Indonesia's response to Panel 
question No.  66(c). 
49 European  Union 's first written submission, para.  36. See also, European  Union 's response to Panel 
question No.  22. 
50 MEMR Regulation No.  7/2020 (Exhibit EU -12(b)).  
51 Indonesia's commen ts on the European  Union 's response to Panel question No.  72. 
52 Nickel Institute, "About nickel" , (last accessed 20  August  2021) , (Exhibit IDN -11).  
53 Nickel Institute, "About nickel", (last accessed 20  August  2021), ( Exhibit IDN -11) noting that the 
Commit tee for Mineral Reserves International Reporting Standards defines a mineral resource as "a 
concentration or occurrence of solid material of economic interest in or on the Earth's crust in such form, grade 
or quality that there are reasonable prospects for  eventual economic extraction".  WT/DS592/R  
BCI deleted, as indicated [[***]]  
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  technology .54 Essentially, the development of technology may render it economic to process lo wer 
grades of nickel, which could, therefore, expand economically viable nickel reserves.  A change in 
the type of processing technology operating in a country , therefore, could result in a change in the 
volume of its mineral reserves .55  
2.27.   Australia, Indones ia, South Africa, the Russia n Federation , and Canada account for more than 
50% of the global nickel resources.56 Indonesia account s for one  quarter of overall global reserves57 
and is the world's biggest nickel producer, with a production contribution to t he world of 800,000 
tonnes, i.e. 29.6% of the world production, in 2019.58 The Philippines and the Russia n Federation  
join Indonesia in the top three nickel -producing countries that provide around half of the global 
supply of nickel.59 Indonesia is expected to dominate nickel ore production through 2040. Multiple 
nickel -refining projects with a combined capacity of 0.42 Mt per year as of 2020 are under 
construction in Indonesia.60 
2.28.   Nickel ore production and export in Indonesia in the per iod 2010 -2020 is shown in Figure 1 
below.  
Figure 1: Indonesian nickel ore production and export (2010 -2020)  
 
Source: MEMR 2021 Sayoga Gautama Report, (Exhibit IDN -15, Figure 5, p. 5; and Exhibit IDN -24) 
 
2.29.   Over the past two decades, the nickel market has increased in total production from 
1.1 million  tonnes in 2000 to 2.4  million  tonnes in 2019.61 This growth was largely d ue to rapid 
expansion in demand for stainless steel. From 2010 -2021 nickel demand for the production of 
stainless steel has more than doubled.62 In 2020, 73% of the global nickel consumption by first use 
was for production of stainless steel, while 8% was assigned to producing batteries.63  
 
54 Nickel Institute, "About nickel", (last accessed 20  August  2021), (Exhibit IDN -11). 
55 Indonesia's response to Panel question No.  9(b). 
56 Nickel Institute, "About nickel", (last accessed 20 August 2021), (Exhibit IDN -11).  
57 The White House, Building Resilient Supply Chains, Revitalizing American Manufacturing, and 
Fostering Broad -Based Growth – 100-day Reviews under Executive Order 14017 (June 2021), Washington , 
(Exhibit IDN -26), p. 99.  
58 MEMR, Indonesian Mining Guidance (2 020), (Exhibit IDN -1), p. 52.  
59 IEA, Special Report on the Role of Critical Minerals in Clean Energy Transition (2021), (Exhibit 
IDN-16), p. 30.  
60 The White House, Building Resilient Supply Chains, Revitalizing American Manufacturing, and 
Fostering Broad -Based Growth – 100-day Reviews under Executive Order 14017 (June 2021), Washington , 
(Exhibit IDN -26), p.100.  
61 INSG, "Production, Usage and Price", available at https://insg.org/index.php/aboutnickel/production -
usage/  (last accessed 20  August  2021), (Exhibit IDN -21). See also, The White House, Building Resilient Supply 
Chains, Revitalizing Amer ican Manufacturing, and Fostering Broad -Based Growth – 100-day Reviews under 
Executive Order 14017  (June 2021), Washington , (Exhibit IDN -26), p. 99.  
62 J. Fraser, J. Anderson, J. Lazuen, et al., Study on future demand and supply security of nickel for 
electric vehicle batteries , Publications Office of the European  Union , Luxembourg, 2021, (Exhibit IDN -22), p.1.  
63 Macquarie, Commodities Outlook, M. Garvey and J. Lennon, March 2021, (Exhibit  EU-27), p. 3. See 
also IEA, Special Report on the Role of Critic al Minerals in Clean Energy Transition (2021) , (Exhibit IDN -16), 
 
WT/DS592/R  
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  2.30.   It is expected that world nickel demand will increase due to the use of nickel in the production 
of lithium -ion batteries, which are an important component in electric vehicles and stationary 
storage.64 In this respect, some reports estimate that the global nickel consumption by first use will 
considerably  increase in the coming years , as a result of  growing demand f rom stainless steel and 
EV battery production.65 The combination of demand from stainless steel production and in electric 
vehicles and battery storage could see demand for nickel increase between 20 -25 times by 2040.66 
2.31.   The increasing demand for nickel in recent years finds reflection in the nickel pric e, which 
increased from 11,526 USD  per dry metric tonne (dmt) in 2017 to 13,558 USD/dmt in 2019.67 The 
drop in 2020 is probably due to the impact of the COVID -19 pandemic on nickel demand (e.g. less 
need for stainless steel because of construction projects  in standby).68 Figure 2 below summarizes 
nickel price trends from 1991 to 2021:  
Figure 2: Nickel price trends (1991 -2021)  
 
Source: London M etal Exchange and Shanghai Futures Exchange (Exhibit IDN -21) 
 
2.32.   Globally, the nickel value chain supports large numbers of jobs, from mining through to end 
use and recycling.69 
 
p. 144; and J. Fraser, J. Anderson, J. Lazuen, Y. Lu, O. Heathman, N. Brewster, J. Bedder, M.  Oliver, Study on 
future demand and supply security of nickel for electric vehicle batteries , Publ ications Office of the 
European  Union , Luxembourg, 2021, (Exhibit IDN-22), pp. 11 and 56.  
64 MEMR, Indonesian Mining Guidance (2020) , (Exhibit IDN -1), p. 33. See also IEA, Special Report on 
the Role of Critical Minerals in Clean Energy Transition (2021) , (Exhibit IDN -16), pp. 26 and 28; and The White 
House, Building Resilient Supply Chains, Revitalizing American Manufacturing, and Fostering Broad -Based  
Growth – 100-day Reviews under Executive Order 14017  (June 2021), Washington , (Exhibit IDN -26), 
pp. 99-100. 
65 According to Macquarie, global nickel consumption by first use will have increased around 80% 
(4.3 mt by 2030 versus 2.4  mt in 2020), and 57% will go to stainless steel production and the 30% to battery 
production . For its part, the IEA estimates  that "EVs and battery storage … are set to take over from stainless 
steel as the largest end user of nickel by 2040". See Macquarie, Commodities Outlook, M. Garvey and J. 
Lennon, March 2021, (Exhibit EU -27), p. 3 , and IEA,  Special Report on the Role of Critical Minerals in Clean 
Energy Transition (2021) , (Exhibit IDN -16), p. 5. The Panel notes that some exhibits refer to metric tonnes 
while others refer to imperial tons. This is not a matter of a mere spelling difference. A  metric tonne is 
1,000 kilograms while an imperial ton is 2,240 pounds (about 1,016 k ilograms). For this reason, the Panel will 
continue to use the terminology as present ed in the exhibits or submissions and not attempt to harmonize the 
terminology.   
66 IEA, Special Report on the Role of Critical Minerals in Clean Energy Transition (2021), 
(Exhibit  IDN-16), p. 8.  
67 MEMR, Indonesian Mining Guidance (2020), (Exhibit IDN -1), p. 55.  
68 INSG, "Production, Usage and Price", available at https://insg.org/index.php/aboutnickel/production -
usage/  (last accessed 20  August  2021), (Exhibit IDN -21). 
69 Nickel Institute, "About nickel", (last accessed 20  August  2021), (Exhibit IDN -11). 
WT/DS592/R  
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  2.2.2   Nickel mining in Indonesia  
2.2.2.1   Legal and policy framework of mining activities  
2.33.   Mining in Indonesia is regulated by several  legal instruments on a variety of issues ranging 
from environmental protection, water and forestry, resource conservation policy, resource and 
reserves reporting mechanisms to raw material certificati on, land reclamation and post -mining 
activities.70  
2.34.   Law No.  4/2009 establishes the fundamental regulatory framework for coal and mineral 
mining in Indonesia. This law establishes the  regime for granting  licenses and permit s for mining 
activities.71 In 2014, pursuant to Local Government Law No.  23/2014, authority for issuing mining 
permits was transferred from the central government to regional governors. In 2020, following the 
adoption of Law No.  3/2020, which amended Law No . 4/2009, the authority for mining permits 
returned again to the central government.72 
2.35.   In its preamble, Law No.  4/2009 emphasizes the important role of the mining industry in 
giving real added value to the national economy. It also establishes that managem ent of mineral 
mining will be conducted  "siding with national interests" and from a "sustainable and environment -
oriented" approach.73 In line with these principles, Law No.  4/2009 sets out objectives to provide for 
sustainable management of mineral resour ces such as "ensur ing the benefit of mineral and coal 
mining in a sustainable  and environment -oriented way ", "ensuring the availability of mineral[s] … 
as raw materials and/or energy sources to meet the domestic needs" , and "supporting and 
developing natio nal capacity to enable the nation to compete with other countries …".74  
2.36.   Indonesia also regulates mining activities in relation to their impact on the environment 
through Law No.  32/2009 on the Protection and Management of the Environment, which entered 
into force on 3  October  2009.75 This law requires that businesses that may have a significant 
environmental impact, such as mining companies, prepare an environmental impact analysis 
(AMDAL).76 Some of the objectives of Law No.  32/2009 concern "the control [o ver] the use of natural 
resources on a wise basis" ; the "realiz[ation of] …  sustainable development "; and "anticipat[ing] any 
of global issues on environment".77 
2.37.   Finally, in addition to the legal instruments that regulate the industry, mining activity in 
general and nickel mining , in particular , are an important focus of the industrial policy of Indonesia. 
The National Industry Development Master Plan  2015-2035 (RIPIN) sets 10 priority industries for 
the 2015 -2035 period. One of these priority industries is the basic metal and non -metal mineral 
industry. The RIPIN outlines 11 strategies to achieve the vision and mission of national industry 
development. Two of the 11 strategies concern the development of the upstre am and intermediate 
industry based on natural resources; and the control on the exportation of raw materials and energy 
resources.78 The RIPIN establishes a first phase covering the 2015 -2019 period. In this first phase 
 
70 Indonesia's firs t written submission, para.  7 and Figure 10.  
71 Indonesia's first written submission, para.  154. 
72 Sayoga Gautama  Supplemental Expert Report, 17  March  2022, (Exhibit IDN -109), pp.  1-2. 
73 Law No.  4/2009, (Exhibit EU -1(b)), Article  2(b) and (d).  
74 Law No.  4/2009, (Exhibit EU -1(b)), Article  3(b), (c), and (d). The preference accorded to domestic 
needs is also reflected in one of the first implementing measures of Law No.  4/2009. See Government 
Regulation No.  23/2010 as amended by Government Regulati on No.  24/2012, (Exhibit EU -3(b)), Article  84. In 
its defence under Article  XX(d)  of the GATT  1994, Indonesia specifically refers to Articles 96(c) and (d) of Law 
No. 4/2009.  
75 Indonesia's first written submission, para.  161. 
76 The AMDAL consists of an env ironmental impact assessment, an environmental management plan, 
and an environmental monitoring plan. In cases where an AMDAL is not required, other documents such as 
environmental management effort documents and environment monitoring effort documents are  generally 
required. See INSG, Report on Nickel Production and Usage in Indonesia, February 2020 , (Exhibit IDN -13 
(revised) ), p. 57; and  PWC, "Mining in Indonesia", Investment and Taxation Guide , 11th ed n., June 2019, 
(Exhibit  IDN-7), p.  143. 
77 Law No.  32/2009, (Exhibit IDN -53), Article  3. In its defence under Article  XX(d) of the GATT  1994, 
Indonesia specifically refers to Article  57 of Law No.  32/2009.  
78 Government Regulation No.  14 of 2015 , Master Plan of National Industry Development 2015 -2035, 
(Exhibit EU -17 (rev)), Chapter I, p. 1 8. The Panel notes that t he European  Union  initially submitted this exhibit 
in a non -official WTO language and provided a summary in English of the main relevant provisions in 
 WT/DS592/R  
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  the increase of the added value of t he natural resources in agricultural, mineral, and oil -processing -
based upstream industry took a prominent role.79 Although not legally binding, the RIPIN describes 
the overall industrialization goals of the Indonesian government for the relevant period.  Presidential 
Regulation No.  2 of 2018 on the National Industrial Policy (2015 -2019) outlines the target to secure 
the supply and distribution of natural resources to meet the demand for raw materials, intermediate 
goods, energy and water resources for Indon esia's national industry.80 
2.38.   The RIPIN further outlines programmes that the Indonesian government will implement to 
guarantee the availability of natural resources for industrial development, in particular those that 
are based on mining mineral, coal, oil a nd gas, and agriculture. One of the programmes relates to 
the prohibition or restriction of exports of natural resources required for the utilization plan and the 
needs of industrial companies and industrial areas companies.81 
2.2.2.2   Types of nickel ore and reser ves  
2.39.   The two measures at issue, namely the export ban and the DPR, concern the same product: 
nickel ore. Ore is defined as "[a] naturally occurring solid material containing a precious or useful 
metal in such quantity and in such chemical combination as to  make its extraction profitable"82 or 
"rock or soil from which metal can be obtained".83 In 2021 nickel mining  (including smelter activity)  
in Indonesia represented [[***]] of its gross domestic product ( GDP) and [[***]] of its total 
employment.84 In certa in regions of Indonesia where nickel mining predominantly takes place it 
makes a significant contribution to the gross regional domestic product (GRDP). In 2020, nickel 
mining  (including purification and refining)  accounted for 27% of the GRDP in Southeast  Sulawesi, 
41% of the GRDP in Central Sulawesi, and 23% of the GRDP in North Maluku .85 
2.40.   Nickel ore originates from two types of deposits: sul fide deposits and laterite deposits. 
Indonesia's nickel resources are mainly of the laterite type since they "are formed by weathering in 
a high -temperature and humid climate".86 Lateritic ore is divided into limonite (more weathered 
upper soil) and saprolite (less weathered lower soil) ore. Saprolite ore has a higher grade of nickel 
than limonite.87 
 
Exhibit  EU-19. The European  Union  filed a revi sed version of Exhibit EU -17 with its responses to the Panel 
questions following the second meeting . This revised version includes translations into English of the relevant 
excerpts of the original document . 
79 Government Regulation No.  14 of 2015 , Master P lan of National Industry Development 2015 -2035, 
(Exhibit EU -17 (rev)), Chapter II, part B, p. 20.  See above explanation on the filing of a revised version of 
Exhibit EU -17 by the European  Union . 
80 Presidential Regulation No.  2 of 2018 , National Industrial Policy (2015 -2019) , (Exhibit  EU-18 (rev)), 
p. 21. The Panel notes that the European  Union  initially submitted this exhibit in a non -official WTO language 
and provided a summary in English of the main relevant provisions in Exhibit EU -19. The European  Union  filed 
a revised version of Exhibit EU -18 with its responses to the Panel questions following the second meeting. This 
revised version includes translations into English of the relevant excerpts of the original document.  
81 Government R egulation No.  14 of 2015 , Master Plan of National Industry Development 2015 -2035, 
(Exhibit EU -17 (rev)), pp. 53 -54. See above explanation on the filing of a revised version of Exhibit EU -17 by 
the European  Union . 
82 Oxford English Dictionary Online, at 
https://www.oed.com/search?searchType=dictionary&q=ore&_searchBtn=Search   
83 Cambridge Dictionary Online, at https://dictionary.cambridge.org/dictionary/english/ore   
84 Indonesia's response to Panel question No.  101. 
85 See Indonesia's second written submission, para.  109, referring to BPS, Excel of "GRDP of South 
Sulawesi, Central Sulawesi and North Maluku" , (Exhibit IDN -100).  
86 IEA, Special Report on the  Role of Critical Minerals in Clean Energy Transition (2021), 
(Exhibit IDN-16), pp. 144 and 146 ; J. Fraser, J. Anderson, J. Lazuen, Y. Lu, O. Heathman, N. Brewster, J. 
Bedder, M. Oliver, Study on future demand and supply security of nickel for electric vehicle batteries , 
Publications Office of the European  Union , Luxembo urg, 2021, (Exhibit IDN -22), p. 2 3; and WALHI, Study 
report on Environmental Conditions around Coastal Sea near the Mining Area due to the Nickel Industry in 
Morowali regency. Central Sulawesi, Kolaka and North Konawe Regencies, Southeast Sulawesi  (2021), 
(Exhibit  IDN-68), p. 15. 
87 IEA, Special Report on the  Role of Critical Minerals in Clean Energy Transition  (2021), 
(Exhibit  IDN-16), p. 144.  WT/DS592/R  
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  2.41.   As regards Indonesia's nickel reserves, the term "mineral reserve" refers to the "economically 
mineable part of a measured and/or indicated mineral resource".88 Mineral reserves are divided into 
probable or prove d reserves depending on the lower or higher level of confidence in the modifying 
factors.89 Probable reserves  are "the economically mineable part of an Indicated, and in some 
circumstances, a Measured Mineral Resource.90 The confidence in the Modifying Factors applying to 
a Probable Mineral Reserve is lower than that applying to a Proved Mineral Reserve." Proved reserves 
are "the economically mineable part of a Measured Mineral Resource. A Proved Mineral Reserve 
implies a high degree of confidence in the Modifying Factors" .91  
2.42.   The Panel notes that ev idence on the record provides different estimates on the level of nickel 
reserves in Indonesia.  The divergences may be due, inter alia , to the economic value attributed to 
limonite and low -grade saprolite nickel ore (LGSO).92 In its argumentation Indonesia  asserts that 
only reserves of high -grade saprolite ore (HGSO) are economically mineable and, therefore,  it is 
only that ore that  is relevant for the reserve calculations.93 Additionally, in accordance with the 
Indonesia National Standard (SNI) 2019 Editi on and the Indonesian KCMI Code 2017 Edition by 
Kombers KCMI IAGI -PERHAPI94 and CRIRSCO , Indonesia  only includes in its reserves  those reported 
by IUP and IUPK holders , as part of the application for a mining permit, which were verified by a 
Competent Pers on.95 A "Competent Person" is defined as a minerals industry professional with at 
least five years of relevant experience in the style of mineralization or type of deposit under 
consideration and in the activity that the person is undertaking.96 
2.43.   The following table summarizes the reserve estimates (in  million  tonnes) provided to the 
Panel:  
 
88 CRIRSCO, Standard Definitions and International Report Template , October 2012, (Exhibit IDN -42), 
pp. 3-5. "Minera l resource" is in turn defined as "a concentration or occurrence of solid material of economic 
interest in or on the Earth 's crust in such form, grade or quality and quantity that there are reasonable 
prospects for eventual economic extraction" . An "Indica ted Mineral Resource" is "that part of a Mineral 
Resource for which quantity, grade or quality, densities, shape and physical characteristics are estimated with 
sufficient confidence to allow the application of Modifying Factors in sufficient detail to sup port mine planning 
and evaluation of the economic viability of the deposit" . This type of mineral resource "has a lower level of 
confidence than that applying to a Measured Mineral Resource and may only be converted to a Probable 
Mineral Reserve" . Measured  Mineral Resource is "that part of a Mineral Resource for which quantity, grade or 
quality, densities, shape, and physical characteristics are estimated with confidence sufficient to allow the 
application of Modifying Factors to support detailed mine plann ing and final evaluation of the economic viability 
of the deposit" . This type of mineral resource "has a higher level of confidence than that applying to either an 
Indicated Mineral Resource or an Inferred Mineral Resource. It may be converted to a Proved Mineral Reserve 
or to a Probable Mineral Reserve" . Similar definitions of "mineral reserve" and "mineral resource" can be found 
in Exhibits IDN -37, p. 7; IDN -5, and IDN -108.  
89 The modifying factors are "considerations used to convert Mineral Resources to Mineral Reserves. 
These include, but are not restricted to, mining, processing, metallurgical, infrastructure, economic, marketing, 
legal, environmental, social and governmental factors". See CRIRSCO, Standard Definitions and International 
Report Template , October 2012, (Exhibit IDN -42), p.  3. 
90 CRIRSCO, Standard Definitions and International Report Template, October 2012, (Exhibit IDN -42), 
p. 5. 
91 CRIRSCO, Standard Definitions and International Report Template, October 2012, (Exhibit IDN -42), 
p. 5. 
92 The Pan el notes that the parties dispute the economic value of low -grade saprolite nickel ore and 
limonite nickel ore . Indonesia does not include low -grade saprolite ore and limonite nickel ore in its reserve 
estimate  because it considers that only high -grade saprolite ore has economic value whereas the 
European  Union  notes that  low-grade saprolite ore and limonite nickel ore can be processed using 
hydrometallurgical processes. See Indonesia's first written submission, para.  118; and European  Union 's 
second written submission, para.  98. 
93 Indonesia's first written submission, para.  118; Indonesia's responses to Panel question Nos. 16 and 
38. See also the  Maryono Report, (Exhibit IDN -18 (BCI) ), pp. 18 -19. 
94 National Standardization Agency, Indonesian National Standard (SNI) , 2019 edn. (Exhibit IDN -37) 
and Kode KCMI IAGI -PERHAPI, Indonesian Joint Committee for Mineral Reserves KCMI  – Code, 2017 edn.  
(Exhibit IDN-38). 
95 MEMR Director General Circular No. 741/2021 Regarding Implementation of the Use of Competent 
Person in the Estimation of Mineral and Coal Resources and Reserves, (Exhibit IDN -97), p. 3 . Failure to use a 
Competent Person results in a s anction and the non -approval of the Annual Work Plan and Budget.  
96 CRIRSCO, Standard Definitions and International Report Template, October 2012, (Exhibit IDN -42), 
pp. 2-3. WT/DS592/R  
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  Table  1: Estimates of Indonesian nickel ore reserves (in million tonnes) (2012 -2020)  
  Year → 
Source  ↓ 2012  2013  2014  2015  2016  2017  2018  2019  2020  
Mining 
Guidance 
of 2020 
IDN-1    3.19 3.15 3.16 3.57 4.59  
Maryono 
Report 
IDN-
18(BCI)97 
(only HGSO 
reserves)  [[***]] [[***]] [[***]] [[***]] [[***]] [[***]] [[***]] [[***]] [[***]] 
USGS  
IDN-2098 3.9 3.9 4.5 4.5 4.5 4.5 21 21 21 
MEMR / 
Indonesia's 
Geological 
Agency  
IDN-4899 2.5– 
prov.- / 
19.1– 
prob. - 2.6 
prov./ 
18.9 
prob.  2.4 
prov./ 
18.9 
prob.  3.9 
prov./ 
46.9 
prob.  4.2 
prov./ 
44.2 
prob.  22.5 
prov./ 
39.7 
prob.  37 
prov./ 
39.7 
prob 17 
prov./ 
54.2 
prob 20.9 
prov./ 
48.4 
prob 
Prov.= prove n reserves; Prob. = probable reserves  
 
2.2.2.3   Extraction and refining of nickel ore  
2.44.   Nickel ore extraction  from lateritic deposits is normally accomplished through strip or open -
cast mining techniques.100 It is essentially an earth -moving exercise requiring  more land clearing 
than vertical digging. This makes nickel mining land intensive  and facilitates the development of 
small nickel mines in which strip -mining operations using "relatively crude" techniques are 
conducted, with the subsequent higher impact on the environment, mainly in terms of deforestation 
and water pollution .101  
2.45.   The nickel mining activity basically consists of the following steps: (i)  Land clearing; (ii)  Top 
soil (red limonite) stripping and stockpiling for later use for reclamation of mined -out area, 
(iii) Stripping of overburden (yellow limonite) and dumped in overburden stockpile area; 
(iv) Stripping of saprolite ore, the main target of nickel mine, as run -of-mine product; and 
(v) Reclamation of mined -out area.102 
 
97 This reserve estimate only includes high-grade saprolite ore (HGSO). See the Mary ono Report, 
(Exhibit IDN -18 (BCI)) , p. 21. 
98This exhibit was the only source that contained estimates for 2010 and 2011. That estimate – 
3.9 million  tonnes – was the same as the estimate for 2012. See USGS, Excel of "Nickel Reserves", 
(Exhibit  IDN-20), p.1. 
99 This reserve estimate encompasses limonite ore, low -grade saprolite ore (LGSO), and high -grade 
saprolite ore (HGSO) based on the reports by holders of mining permits.  See Indonesia's first written 
submission, para.  117. 
100 Clean Technica, Image of In donesia at "Electric Vehicles: The Dirty Nickel Problem", 
(Exhibit  IDN-66), available at: https://cleantechnica.com/2020/09/27/electric -vehicles -the-dirty-nickel-
problem/  (last accessed 30  August  2021) ; Sayoga Gautama Report , (Exhibit IDN -15), pp. 1-2; and NIWA, 
"Sediment and Mining" (9  March  2021), available at https://niwa.co.nz/our -
science/freshwater/tools/kaitiaki_tools/land -use/mining/impacts/sedimentation -and-mining  (last accessed 
20 August 2021) , (Exhibit IDN -65). 
101 UNCTAD, Lessons from Indonesia's ban on nickel exports, Backgroun d document, (Exhibit IDN -23), 
p. 12. 
102 Sayoga Gautama Report , (Exhibit IDN -15), pp. 2 -3. WT/DS592/R  
BCI deleted, as indicated [[***]]  
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  Figure 3: Complete profile of nickel laterite  
 
Source: Maryono  Report, (Exhibit IDN-18(BCI) ), p. 13.  
 
2.46.   Because lateritic nickel ore deposits do not produce the same reaction heats as sul fide nickel 
deposits, pyrometallurgical processing techniques such as r otary kiln  electric furnace (RKEF), which 
are energy intensive, are commonly used, particularly as regards HGSO . In these pyrometallurgical 
processes, "the dried ore is smelted in an electric furnace with carbon as a reducing agent" and heat 
is required "to remove free moisture and combined water in addition to calcining and smelting" .103 
As regards the processing of LGSO  and limonite ore, hydrometallurgical methods such as the Caron 
process104 and High Pressure Acid Leaching (HPAL) are normally us ed. The figure  summarizes these 
two processing techniques.  
 
103 Minerals UK, "Nickel", British Geological Survey, Natural Environment Research Council , (September 
2008), (Exhibit IDN -12), p. 8. Pyrometallurgical processes may also involve the use of sulfur, if matte is 
required. These processes are completed by further refining to produce ferronickel or matte.  
104 The Caron process involves "selective reduction of the ore and ammonia leaching". It is more energy 
intensive than HPAL "as it includes drying, calcining and reduction stages" . HPAL involves "preheating the 
slurried ore and leaching with concentrated sul furic acid at high temperature and pressure" . The nickel is 
converted to "soluble sulphate salts which ar e recovered from the slurry in a counter -current decantation 
circuit (CCD). CCD involves several stages of washing the residue and recovering soluble nickel … in the liquid. 
The remaining acid in this liquid is neutrali zed using a limestone slurry, produci ng a gypsum precipitate. Nickel 
and other sul fides are precipitated in the next stage, through a reaction with injected hydrogen sul fide. This 
mixed metal sul fide is refined through re -leaching with oxygen at high pressure, then removing iron and 
copper us ing chemical reactions with ammonia and air, and sul fide, respectively. Anhydrious ammonia and 
ammonium sulphate are added to the preheated nickel solution, hydrogen is introduced under high pressure 
and nickel is precipitated . See Minerals UK, "Nickel", B ritish Geological Survey, Natural Environment Research 
Council, (September 2008), (Exhibit IDN -12), pp. 8-9. 
WT/DS592/R  
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  Figure  4: Caron and HPAL smelter processes  
 
Source: Minerals UK, "Nickel", British Geological Survey, Natural Environment Research Council , (September 
2008), (Exhibit IDN-12, p. 9 ) 
 
2.47.   At the time of the Panel's establishment, all smelter facilities in Indonesia used 
pyrometallur gical processes, namely RKEF . Indonesia has confirmed that the first HPAL plants in 
Indonesia were not yet operational at the time of this Panel's analysis. Although d ifferent sources 
provide different estimates on when HPAL plants would become operational, Indonesia tells the Panel  
that [[***]] plants will be operational starting in [[***]].105 Indonesia expects a significant  increase 
in the number of operational RKEF facilities in the coming years .106 This will resu lt in a significant 
increase in the number of refining facilities  in the next few years .107  
2.2.2.4   Environmental impact of nickel mining  
2.48.   Mining activities, in general, and nickel mining, more particularly, have an impact on the 
environment. As mentioned above, n ickel deposits in Indonesia are mostly lateritic in nature, which 
requires open -cast or strip mining to extract the nickel ore.108 This type of mining entails extensive 
land clearing, stripping of topsoil and overburden (rock or soil layer covering the mine ral resources, 
which must be stockpiled) and stripping of saprolite ore, the main object of nickel mining. This 
results in a negative environmental impact on landscape, water resources, air quality, and emissions. 
Waste management is also a challenge for a ll the players involved in the mining business, including 
governments.  
2.49.   The main environmental impact of laterite nickel mining is land disturbance because 
extraction of this type of nickel requires clearing trees, plants and topsoil from the mining area. T his 
 
105 Indonesia's response to Panel question No.  100. 
106 Indonesia's response to Panel question No.  100 (an increase of [[ ***]] by [[ ***]]). 
107 Indonesia 's first written submission, para.  42. The Panel notes, nonetheless, that s ome exhibits on 
the record indicate that there may be 30 smelters  in 2024 or [[ ***]] smelters by 2023. See MEMR, Indonesian 
Mining Guidance (2020), (Exhibit IDN -1), p. 143; and t he Maryono Report , (Exhibit IDN -18(BCI)), p.  30, 
respectively.  
108 See para.  2.40 above. See also A. van der Ent, A.J.M. Baker, M.M.J. van Balgooy, A. Tjoa, 
"Ultrama fic nickel laterites in Indonesia (Sulawesi, Halmahera): Mining, nickel hyperaccumulators and 
opportunities for phytomining", Journal of Geochemical Exploration , Vol. 128 (2013), (Exhibit IDN -4); and 
Clean Technica, Image of Indonesia at "Electric Vehicles : The Dirty Nickel Problem", (Exhibit IDN -66), available 
at: https://cleantechnica.com/2020/09/27/electric -vehicles -the-dirty-nickel -problem/  (last accessed 
30 August  2021) .  
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  results in deforestation, loss of biodiversity, soil erosion and contamination, destruction of 
agricultural land and water pollution through sediments that are washed from the loosened topsoil 
when it rains.109 
2.50.   Water resources are also severely affected  by nickel mining activities, both as regards its 
intensive use and the risk of pollution. Mineral processing requires large volumes of water from 
exploration to processing, which reduces water availability for other purposes.110 Further, nickel 
mining can also be a source of water contamination, e.g. through acid mine drainage111 or 
wastewater discharge.112 Water pollution is particularly relevant at the processing stage, where 
grinding, milling and concentration methods generate toxic effluents rich in heavy  metals and 
chemicals.113 The marine environment is also negatively affected by mining activities because of 
sedimentation, wastewater discharge, and deep -sea facilities to store tailings.114  
2.51.   Waste management remains a challenge in the field of mining. Wast e includes overburden, 
waste rock (uneconomic materials removed in ore extraction) and tailings (fine -grained materials 
left after separating the valuable fraction of the ore).115 The declining quality of ore causes a 
considerable increase in mining waste.116 Due to the low -nickel ore grade, almost 700 tonnes of 
waste rock and tailings were generated to produce one tonne of nickel in 2017, which is 30% more 
than in 2010.117 Tailings storage facilities may pollute soil and waterbodies due e.g. to the leaching 
of waste piles.118 
 
109 Clean Technica, Image of Indonesia at "Electric Vehicles: The Dirty Nickel Problem", (Exhibit IDN -
66); available at: https://cleantechnica.co m/2020/09/27/electric -vehicles -the-dirty-nickel -problem/  (last 
accessed 30 August 2021) ; Sayoga Gautama Report , (Exhibit IDN -15), p.  3; IEA, Special Report on the  Role of 
Critical Minerals in Clean Energy Transition (2021), (Exhibit IDN -16), pp. 209 and 211; UNESCAP, 1992 
Environmental Impact Assessment, Guidelines for Mining Development , (Exhibit IDN -62); G. Bridge, 
"Contested Terrain: Mining and the Environment",  Annual Review of Environment and Resource  (2004), 
Vol. 29, (Exhibit IDN -63), p. 5; NIWA, "Sediment and Mining" (9  March  2021), (Exhibit IDN -65); Agricultural 
and Environmental Policy Minutes, Formulating Policies in Addressing the Environmental Damage Due  to Nickel 
Mine Activities in Tinanggea Sub -District, South Konawe Regency, Vol. 4 No.  2, August 2017, (Exhibit IDN -67), 
pp. 6-7 and 21; and Sayoga Gautama Supplemental Expert Report (17  March  2022), (Exhibit IDN -109), p. 4.  
110 Water consumption levels for nickel production are more than double in hydrometallurgy than using 
the pyrometallurgical method. See IEA, Special Report on the  Role of Critical Minerals in Clean Energy 
Transition  (2021), (Exhibit IDN -16), p. 215.  
111 Acid mine drainage results from oxyge n and water coming  into contact with sulfide -rich materials. 
These materials undergo a chemical reaction called "oxidation" that can inhibit plant growth at the surface of a 
waste pile. If water infiltrates into waste rock containing sulfide, water become acidified and it  is a source of 
contamination of streams. It remains long time after the mine is closed. See IEA, Special Report on the  Role of 
Critical Minerals in Clean Energy Transition (2021), (Exhibit IDN -16), p. 215; UNESCAP, 1992 Environmental 
Impac t Assessment, Guidelines for Mining Development , (Exhibit IDN -62); and G. Bridge, "Contested Terrain: 
Mining and the Environment", Annual Review of Environment and Resource  (2004), Vol. 29, (Exhibit IDN -63), 
p. 213.  
112 IEA, Special Report on the  Role of Cri tical Minerals in Clean Energy Transition  (2021), 
(Exhibit  IDN-16), p. 209. 
113 IEA, Special Report on the Role of Critical Minerals in Clean Energy Transition (2021), 
(Exhibit  IDN-16), p. 215.  
114 IEA, Special Report on the Role of Critical Minerals in Clean Energy Transition  (2021), 
(Exhibit  IDN-16), pp. 40, 146, 215-216. Deep -sea tailings placement has been considered an option for 
Indonesia due to its high precipitation and seismic activity.; and Clean Technica, Image of Indonesia at 
"Electric Vehicles: The Dirty Nickel Problem", (Exhibit IDN -66), available at: 
https://cleantechnica.com/2020/09/27/electric -vehicles -the-dirty-nickel -problem/  (last acc essed 
30 August  2021) . See also AEER, Supply of Nickel Battery Industry from Indonesia and Ecological Social 
Issues, Action for Ecology and Emancipation of People  (December 2020) , (Exhibit IDN -64) for further 
information on the potential environmental impa ct of tailings disposal into the deep sea.  
115 IEA, Special Report on the  Role of Critical Minerals in Clean Energy Transition  (2021), 
(Exhibit  IDN-16), p. 220.  
116 IEA, Special Report on the Role of Critical Minerals in Clean Energy Transition (2021) , 
(Exhibi t IDN-16), p. 40. See also A. Dalvi, W. Bacon, R. Osborne, "The Past and the Future of Nickel Laterites", 
PDAC 2004 International Convention, Trade Show & Investor Exchange, 7 -10 March  2004, (Exhibit IDN -19), 
p. 17; and UNCTAD, Lessons from Indonesia's ban  on nickel exports, Background document , (Exhibit IDN -23), 
pp. 28-29. 
117 IEA, Special Report on the Role of Critical Minerals in Clean Energy Transition (2021), 
(Exhibit  IDN-16), p. 220.  
118 IEA, Special Report on the Role of Critical Minerals in Clean Energy  Transition (2021), 
(Exhibit  IDN-16), pp. 215 and 220.  WT/DS592/R  
BCI deleted , as indicated [[***]]  
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  2.52.   Air quality is also negatively affected by particles mobilized during excavations, blasting, and 
ore crushing and by gaseous emissions from fuel combustion in e.g. drying and smelting 
operations.119 Sulfur dioxide emissions resulting from s melting operations react with atmospheric 
water vapour to form sulfuric acid or "acid rain", which could harm vegetation.120 
2.53.   Another growing environmental concern related to nickel mining is the increase in carbon 
dioxide (CO 2) emissions.121 Laterite nickel ore has lower concentrations of nickel than sulfide ore. 
Lower -grade ores require more energy to extract the valuable fraction, and to move and treat the 
waste fraction.122 This energy mainly comes from burning coal. Smelting and refining l aterite nickel 
ore releases nearly 90 tons of CO 2 for every tonne of nickel produced.123 
3  PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  
3.1.   The European  Union  requests the Panel  to find that the export prohibition of nickel ore and 
the DPR are inconsistent with Indonesia's obligations under Article  XI:1 of the GATT  1994. The 
European  Union  further requests, pursuant to Article  19.1 of the DSU, that the Panel recommend 
that Indonesia  bring its measures into conformity with the GATT  1994.124 
3.2.  Indonesia requests the Panel to find that  (i) the European  Union  has failed to establish a prima 
facie case that the DPR is inconsistent with Article  XI:1 of the GATT  1994, (ii) the measures at issu e  
constitute export prohibitions or restrictions temporarily applied to prevent or relieve critical 
shortages of  a product essential to Indonesia, within the meaning of Article  XI:2(a) of the 
GATT  1994, and (iii)  alternatively, should the Panel find that the measures at issue do not fall within 
the scope of Article  XI:2(a) and are inconsistent with Article  XI:1 of the GATT  1994, these measures 
are justified under Article  XX(d) of the GATT  1994.125  
4  ARGUMENTS OF THE PARTIES  
4.1.  The arguments of the parties are reflected in their executive summaries, provided to the Panel 
in accordance with paragraph 25 of the Working Procedures of the Panel (see Annexes B -1 and B -2). 
5  ARGUMENTS OF THE THIRD PARTIES  
5.1.  The arguments of Brazil, Canada,  India, Japan, Korea, Ukraine, the United Kingdom, and the 
United  States  are reflected in their executive summaries, provided in accordance with paragraph 27 
of the Working Procedures of the Panel (see Annexes C-1, C-2, C-3, C-4, C-5, C-6, C-7, and C -8). 
China, the Russian  Federation , the Kingdom of Saudi Arabia, Singapore, Chinese Taipei,  Türkiye , 
and the United Arab Emirates did not submit written or oral arguments to the Panel.  
6  INTERIM REVIEW  
6.1  Introduction  
6.1.  The Panel issued its Interim Report to the parti es on 29 August 2022 . Indonesia submitted its 
written request to review precise aspects of the Interim Report o n 12 September 2022 . The 
 
119 IEA, Special Report on the Role of Critical Minerals in Clean Energy Transition (2021), 
(Exhibit  IDN-16), p. 224. See also UNCTAD, Lessons from Indonesia's ban on nickel exports, Background 
document,  (Exhibit IDN -23), pp. 28 -29. 
120 UNESCAP, 1992 Environmental Impact Assessment, Guidelines for Mining Development , 
(Exhibit -IDN-62). It should be noted that modern smelters have drastically reduced particulate and sulfur 
dioxide emissions.  
121 IEA, Special Report on the Role of Critical Minerals in Clean Energy Transition  (2021), 
(Exhibit  IDN-16), p. 133.  
122 IEA, Special Report on the Role of Critical Minerals in Clean Energy Transition (2021), 
(Exhibit  IDN-16), p. 197.  
123 Clean Technica, Image of Indo nesia at "Electric Vehicles: The Dirty Nickel Problem", (Exhibit IDN -
66), available at: https://cleantechnica.com/2020/09/27/electric -vehicles -the-dirty-nickel -problem/  (last 
accessed 30  August  2021). 
124 European  Union 's first written submission, para.  53. 
125 Indonesia's first written submission, para s. 230-232; second written submission, para s. 202-204. WT/DS592/R  
BCI deleted, as indicated [[***]]  
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  European  Union informed the Panel that it had no comments on the Interim Report. On 
26 September 2022, the European Union submitted comments on Indonesia's request for review.  
6.2.  In addition to its written request to review precise  aspects of the Interim Report, Indonesia 
made general comments expressing disappointment with the panel's  analysis and  approach  to the  
evidence  in its cover letter addressed to the Panel. The Panel declines to address these comments  
in the interim review  as they do not pertain to precise aspect s of the Interim Report as required 
under Article 15.2 of the DSU , but rather to Indonesia's view of the broader geopolitical context in 
which the dispute sits . The Panel recalls that its duty under Article 11 of the DSU is to make an 
objective assessment of the matter before it, and assist the DSB in making recommendations and 
rulings provided for in the covered agreements.126 The Panel's assessment was based on the facts 
and legal argument presented to the Panel as well as an interpretation of the covered agreements 
consistent with customary rules of interpretation of public international law , also  in light of the role  
of WTO dispute settlement as a central element in  "provid ing security and predictability to the 
multilateral trading system ".127 The Panel is also mindful that any of the Panel's recommendations  
that the  DSB may adopt  "cannot add to or  diminish the rights and obligations provided in the covered 
agreements" .128 To the ext ent that the Panel's understanding of the relevant WTO rules,  reached 
pursuant to its obligations under   the DSU , needs to be revised to take into account the concerns 
Indonesia has raised, the appropriate vehicle for pursuing that is negotiations.  Revising the Interim 
Report in response to Indonesia's general comments would therefore not accord with the Panel's 
duties und er the DSU .129  
6.3.  In accordance with Article 15.3 of the DSU, this section of the Report sets out the Panel's 
response to the parties' requests made at the interim review stage. In addition to the parties' 
requests for substantive modifications, the Panel als o made minor editorial changes in the following 
paragraphs: 7.6, 7.10, 7.11, 7.12, 7.14, 7.22, 7.28, 7.31, 7.52, 7.54, 7.58, 7.59, 7.60, 7.62, 7. 63,  
7.65, 7.67, 7.74, 7.81, 7.85, 7.88, 7.89, 7.90, 7.97, 7.99, 7.101, 7.106, 7.108, 7.109, 7.118, 7.124, 
7.125, 7.137, 7.138, 7.153, 7.158, 7.166, 7.168, 7.186, 7.231, 7.262 and Figures 5 and 6.  The 
numbering of some of the paragraphs and footnotes in the Final Report has changed from the 
numbering in the Interim Report.  If one of the paragraphs or footnotes refe rred to in 
section  6.2  below has changed , the Panel indicates the paragraph or footnote number in the Final 
Report as well as the original numberin g in the Interim Report .  
6.2  Indonesia's s pecific requests for review  
6.2.1   Paragraph 7.17  
6.4.  Indonesia requests that the Panel revise paragraph 7.17 to reflect its position as summarized 
in paragraph 3.2 of the Panel Report , which it considers  to be a more accurate and complete 
representation of its position .130  
6.5.  The Panel notes that paragraph 7.17 is intended to  provide a brief broad summary  of the 
parties' positions  in relation to Article XI of the GATT . Nevertheless, the Panel accepts Indonesia's 
request and has reformulated the paragraph accordingly.  
6.2.2   Paragraph 7.48  
6.6.  Indonesia argues that the use of the term "therefore" in the third sentence of paragraph 7.48 
could lead to a misapprehension that its two separate argume nts on the internal nature of the DPR 
and whether it has a limiting effect on exports are dependent on each other. Indonesia requests the 
Panel to revise paragraph 7.48 to reflect the separate nature of the two arguments.   
 
126 Specifically, Article 11 of the DSU provides that a panel should "make an objective assessment of the 
matter before it, including an objective assessment of the facts of the case and the applicability of and 
conformity with the relevant covered agreements, and make such other findings as will assist the DSB in 
making the recommendations or in giving the rulings provided for in the covered agreements".  
127 Article 3.2 of the DSU.  
128 Article 3.2  of the  DSU. 
129 See Panel Report, Korea – Stainless Steel Bars , Annex A -3, para. 1.3.  
130 Indonesia's comments on the Interim Report, paras. 3 -5. WT/DS592/R  
BCI deleted , as indicated [[***]]  
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  6.7.  In response to Indonesia's reques t the Panel has re -ordered the sentences in  paragraph 7.48 
to start with Indonesia's argument that the DPR is an internal measure and then to note Indonesia's 
argument that the DPR was rendered inoperative with respect to exports by the export ban.  
6.2.3   Paragr aph 7.70  
6.8.  Indonesia requests the Panel to revise paragraph 7.70 to note that  the export data referred to 
in paragraph 7.69 confirm its arguments that the DPR does not govern whether nickel ore can be 
exported  rather than to be considered a separate argument .131  
6.9.  The Panel notes that Indonesia referred to the export data in response to Panel question No.  13, 
which asked Indonesia  what would happen if the export ban were lifted and the DPR remained in 
force. The Panel, for this reason  treated the export data as  separate from Indonesia's main argument 
on the DPR's status in Indonesia's legal system. Indonesia called to the Panel's attention its 
comments on the European Union's response to Panel question No. 77 where it argues that the 
exports occurred because spe cific legal instruments, which are lex specialis , allowed the exports 
despite the DPR.  In light of this, t he Panel has removed the phrase "separate from the export data" 
from the first sentence of paragraph 7.70 and added a reference to Indonesia's comment s to the 
European Union's response to Panel question No. 77 .  
6.2.4   Paragraph 7.87  
6.10.   Indonesia requests the Panel to better reflect its arguments on why nickel is essential to 
Indonesia in paragraph 7.87 while acknowledging that the paragraph is meant to provide a brief 
summary of its arguments.132 In this regard, Indonesia refers to paragraphs 109 -115 of its second 
written submission where it presented its data and arguments on why nickel was "essential" to 
Indonesia within the meaning of Article XI:2(a) o f the GATT.133  
6.11.   The Panel accepts Indonesia's request and has modified paragraph 7.87 to elaborate 
Indonesia's arguments  and include a reference to paragraphs 109 -115 of its second written 
submission, in addition to paragraph 136 of its first written submis sion. Because these arguments 
were repetitive of those summarized in paragraph 7.89, the Panel has removed the references from 
that paragraph.  
6.2.5   Paragraph 7.111  
6.12.   In paragraph  7.111 the Panel concludes that Indonesia does not cite any text in the current 
regulations that demonstrate s the temporary nature or a specific timeframe of application of the 
measures . Indonesia argues that this  is an inaccurate description of Indonesia's arguments  and 
requests the Panel to modify the paragraph . Indonesia maintains that it has argued that  it was 
facially evident  from its regulations  that Indonesia only applies export pr ohibitions on nickel ore for 
limited time periods. With respect to the DPR, Indonesia comments  that it had pointed to specific 
provisions demonstrating tha t the DPR has been applied to restrict exports of nickel ore for only 
limited time -periods.134  
6.13.   The Panel notes that the paragraph Indonesia requests be modified occurs in the section for 
the analysis of the Panel and not the summary of Indonesia's argument s. In this paragraph, t he 
Panel is not describing Indonesia's arguments but reaching a conclusion. The Panel has reviewed 
paragraphs 100 and 102 of Indonesia's first written submission, which Indonesia refers to in its 
request . The Panel  does not find in these paragraphs a referral to a specific textual basis in current 
regulations that explicitly states that they are meant to be temporary , or sets out a specific 
timeframe in which they will be lifted , or triggering criteria for lifting them. The Panel, the refore, 
sees no reason to make the changes requested by Indonesia.   
 
131 Indonesia's comments on the Interim Report, para. 10.  
132 Indonesia's comments on the Interim Report, para. 15.  
133 Indonesia's comments on the Interim Report, para. 14.  
134 Indonesia's comments on the Interim Report, paras. 16 -17. WT/DS592/R  
BCI deleted, as indicated [[***]]  
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  6.2.6   Paragraphs 7.228, 7.243, 7.277 and 7.278  
6.14.   With respect to the reference to the National Industry Development Master Plan 2015 -2035 
(RIPIN), Indonesia requests the Panel not to base its finding on the RIPIN as it is not properly before 
the Panel. Indonesia argues that European Union's submission of  the exhibit does not comport with 
the Panel's Working Procedures  and reflects extensive paraphrasing of the original text . 
Alternatively, Indonesia requests that the Panel clarify the status of the RIPIN as not forming a part 
of the legal and policy frame work of mining activities in Indonesia, but merely acting as a guideline 
for long -term economic development.135   
6.15.   In the European Union's view, Indonesia's argument that there were no ground s to contest 
the accuracy of the translation on the basis that the European Union had not submitted a complete 
translation is "entirely circular". The European Union requests the Panel to reject Indonesia's 
arguments as neither the factual accuracy of the statement  in paragraph 7.228  nor the accuracy of 
the translation  has been challenged .136 
6.16.   As noted in footnote 78, the European Union initially submitted this exhibit 
(Exhibit  EU-17(rev)) as well as exhibits EU -16 and EU -18 in a non -official WTO language 
accompanied by a separate exhibit, EU -19, which contained a summary in  English of the relevant 
provisions  of all three documents . In response to the Panel's questions following the second meeting, 
the European Union filed a revised version of the exhibit highlighting the relevant portions of the 
text and including the corres ponding English translations.137 Paragraph 6(1) of the Working 
Procedures, contemplates the submission of translation of only relevant portions of an exhibit, rather 
than the entire document, into a WTO official working language  if the original language of the exhibit 
is not a WTO official working language. The Panel, therefore, considered the issue it raised with the 
European Union on this exhibit resolved with the submission of the revised exhibit. Moreover, 
Indonesia has acces s to and the ability to read the full Indonesian original of the documents and 
decide whether the translated portions are, in its view, inaccurate  or incomplete (in that other 
portions should have been translated as wel l). Per the Working Procedures, Indon esia was , 
therefore,  required to raise its objection along with the submission of an alternative translation.138 
It did not do so. The  Panel , therefore, maintains  that the RIPIN contained in Exhibit EU -17(rev) is 
properly before it.  
6.17.   On the status of the RIPIN, the Panel accepts Indonesia's request to clarify that the RIPIN 
acts as a statement of overall goals of the Indonesian government and is not a legally binding 
instrument. The Panel has modified the description of the RIPIN in para graph 2.37 to reflect this.   
6.18.   The Panel notes that it does not rely on the RIPIN for its findings  on any issue. In 
paragraph  7.228 the Panel refers  to the RIPIN 's prediction that increasing domestic demand will 
require an expansion in nickel ore extraction as part  of its overall analysis of whether the export ban 
and DPR secure compliance with Article 96(c). In paragraph 7.243, the Panel refers to the RIPIN to 
find additional support for its observation that the legal instruments implementing the DPR priorit ize 
the development of industries based on natural resources and generating added value in Indonesia  
rather than on the objectives of Article 96(c) .  
6.19.   In paragraphs 7.277 and 7.278 , in the context of analyzing the contribution of the measures 
at issue towards achieving the objective within the meaning of Article XX(d) , the Panel refers to the 
RIPIN to highlight the projection of natural resources need ed for the Indonesian industry an d the 
expected increase in demand for nickel every five years from 2015 to 2035. In this regard, the Panel 
notes it has not referred to the RIPIN as the sole basis for supporting its analysis but only to provide 
additional context. The Panel therefore decl ines Indonesia's request in this respect.  
6.2.7   Footnote 466 (previously 448) to paragraph 7.228  
6.20.   Indonesia requests the Panel to delete footnote 466 (previously 448 ) to paragraph 7.228 
where the Panel refers to Indonesia's response to the Panel's questions duri ng the second meeting. 
Indonesia submits that its argument was in response to the European Union's argument that demand 
 
135 Indonesia's comments on the Interim Report, paras. 20 -21. 
136 European Union's comments on Indonesia's comments on the Interim Report, para s. 4-7. 
137 European Union's response to Panel Question No. 125; Exhibit EU -17(rev).  
138 Working Procedures of the Panel, para. 6(2).  WT/DS592/R  
BCI deleted , as indicated [[***]]  
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  for stainless steel and EV batter ies could be met through imports. Further, Indonesia argues that its 
comments were made in response to question s by the Panel on Indonesia's affirmative defence  
under Article XX(d) of the GATT 1994. Indonesia notes that its defence under Article XX(d) of the 
GATT 1994  was put forward in the alternative to its justification under Article XI:2(a) and, therefo re, 
is premised on the assumption that the Panel had rejected its  argument that there is an imminent 
critical shortage of nickel in Indonesia .139 Relying on the panel report in Dominican Republic – Import 
and Sale of Cigarettes , Indonesia argues that the legal arguments presented by a party in support 
of a particular claim or defence should not be invoked against it in the assessment of an alternative 
claim or defence.  
6.21.   In response, t he European Union observes that the Panel's citation to Indonesia's respon se in 
footnote 466 forms  a part of the analysis under Article XX(d)  of the GATT 1994  and that Indonesia 
itself acknowledges that its response was in the context of the same provision. The European Union 
therefore requests the Panel to reject Indonesia's re quest  to delete the footnote .140 
6.22.   The Panel has reviewed the statements made at the second meeting. The response by 
Indonesia was made in the context of question s regarding  Article XI:2(a) and not Article XX(d)  of 
the GATT 1994 . Moreover, t he statement relat es to a factual matter not one of legal argumentation . 
The Panel is, therefore, of the view that the reasoning of the panel in Dominican Republic – Import 
and Sale of Cigarettes  is inapposite . The factual matter at issue  was whether Indonesia imported 
nickel ore or sought to satisfy  increasing  demand through expansion of domestic nickel extraction. 
In the interest of avoiding confusion, the Panel has modified the footnote to refer to INSG, Report 
on Nickel Production and Usage in Indonesia , February 2020 (E xhibit IDN -13) with respect to the 
factual matter of Indonesia's imports of nickel products. The Panel has removed the quotation but 
maintain s that Indonesia confirmed the lack of imports at the second meeting.    
6.2.8   BCI issues raised by the Panel  
6.23.   At the same time it issued  the Interim Report, the Panel noted that the parties' executive 
summaries of their submission s contained BCI and requested the parties to submit non -confidential 
versions of the same. Both parties submitted the requested non -confidentia l versions of their 
executive summaries  (see Annex es B-1 and  B-2).  
6.24.   With respect to titles of exhibits, the Panel noted that Indonesia had not specifically indicated 
that the titles of exhibits contained BCI and, therefore, the Panel did not intend to reda ct any of the 
exhibit titles even if the content of an exhibit might be redacted. Indonesia  responded by  request ing 
the Panel to treat the titles of two exhibits as BCI: Exhibit s IDN-111 and IDN-113. Both of these 
exhibits contain affidavits from individua ls with direct knowledge of mining activities in Indonesia. 
Indonesia has asked the Panel to protect the names of those individual s and maintains that  the titles 
fulfil the definition of BCI as provided under the Additional Working Procedures concerning BC I.141 
The Panel will treat as BCI the names of the affiants in the titles of Exhibits IDN -111 and IDN -113 
in the list of exhibits. The Panel will also redact the names and identifying characteristics of the 
affiants wherever referenced in the Panel Report  (see paragraphs  7.246, 7.282, 7.284 ).  
6.25.   Indonesia agreed with the Panel that although Figure 3 of the Interim Report  was taken from 
the Maryono Report (Exhibit IDN -18 (BCI)), it did not contain BCI and could be included in the Final 
Report without redaction.142 The Panel , therefore,  makes no change to the Interim Report with 
respect to Figure 3 . 
7  FINDINGS  
7.1  Preliminary issue  
7.1.  In its first written submission, Indonesia raises a preliminary objection to the inclusion in the 
European  Union 's request for establishment of a panel the following regulations: MEMR Regulation 
 
139 Indonesia's comments on the Interim Report, paras. 23 -26 (referring to Panel Report, Dominican 
Republic – Import and Sale of Cigarett es, paras. 7.275 and 7.277 ). 
140 European Union's comments on Indonesia's comments on the Interim Report, para. 9.  
141 Indonesia's comments on the Interim Report, para. 29.  
142 Indonesia's comments on the Interim Report, para. 30.  WT/DS592/R  
BCI deleted, as indicated [[***]]  
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  Nos. 7/2012, 11/2012, 20/2013, and 1/2014, and MOT  Regulation No. 96/2019 .143 Indonesia 
argued that the Panel s hould find that MEMR Regulation Nos. 7/2012, 11/2012, 20/2013 and 1/2014  
are outside its terms of reference because they were not the subject of consultations and expanded 
the scope and changed the essence of the dispute.144 Indonesia requests that the Pane l address its 
jurisdictional challenge, either as a preliminary ruling or in its report.145 Additionally , as noted in 
paragraph  2.24 above , the Panel observed that the European  Union  mentions in its first written 
submission two measures adopted in 2020 – Law No.  3/2020 amending Law No.  4/2009 and MEMR 
Regulation No.  7/2020. Neither of these measures appears in the consultations request, which dates 
from 2019146 nor in the request for establishment of a panel, which dates from early 2021.147  
7.2.  Article  7.1 of the DSU sets the parameters of the Panel's terms of reference (or jurisdiction) as 
being limited to the matter referred to in the request for establishment of a panel.148 The terms of 
reference have two essential purposes: first, to give the parties and third parties sufficient 
information concerning the claims at issue in the dispute to allow them an opportunity to respond 
to the complainant's case; and second, to establi sh the jurisdiction of the panel by defining the 
precise claims at issue in the dispute.149 
7.3.  The requirements for the request for establishment of a panel are set out in Article  6.2 of the 
DSU, which requires that complaining Members note whether consultatio ns were held and, in 
relevant part, identify the specific measures at issue. Article  4.4 of the DSU sets out the provisions 
relating to requests for consultations , and it also requires that complaining Members identify the 
measures at issue. A panel analys es a request for establishment of a panel for consistency with 
Article  6 of the DSU on a case -by-case basis looking at the request on its face and in light of the 
attendant circumstances.150 Although subsequent events in panel proceedings, including 
submiss ions by a party, may assist a panel in confirming the meaning of the wording in a panel 
request, those events do not have the effect of curing a deficient panel request.151 
7.4.  The Appellate  Body has clarified, and this Panel agrees, "that the vesting of jurisd iction in a 
panel is a fundamental prerequisite for a lawful panel proceeding ".152 A panel must therefore 
scrutinize the parties' requests for findings in their submissions and the request for establishment 
of a panel to ensure compliance with both the lett er and spirit of the DSU.153 In light of the 
fundamental requirement that a panel not exceed its mandate, the Appellate  Body has confirmed 
that:  
[P]anels cannot simply ignore issues which go to the root of their jurisdiction – that is, 
to their authority t o deal with and dispose of matters. Rather, panels must deal with 
such issues – if necessary, on their own motion – in order to satisfy themselves that 
they have authority to proceed.154 
7.5.   The Panel, therefore, in addition to querying the European  Union  about the regulations 
Indonesia raised in its preliminary objection, brought to the parties' attention that the 
 
143 Indonesia's first written sub mission, para.  71. 
144 Indonesia's first written submission, para.  72. 
 Indonesia's response to Panel question No.  21. With respect to MOT Regulation No.  96/2019 Indonesia 
acknowledged that it fell within the Panel's terms of reference under Articles 6.2 and 7.1 of the DSU.  
145 Indonesia's first written submission, para.  76. 
146 WT/DS592/1 . 
147 WT/DS592/3.  
148 Specifically, Article  7.1 of the DSU provides that a panel's standard terms of reference shall be:  
To examine, in the light of the relevant provisions in (name of the covered agreement(s) cited by 
the parties to the dispute), the matter referred to the DSB by (name of party) in document … 
and to make such findings as will assist the DSB in making the re commendations or in giving the 
rulings provided for in that/those agreement(s).  
149 Panel  Report , China – Publications and Audiovisual Products, para. 7.27 (referring to  Appellate  Body 
Report, Brazil – Desiccated Coconut , p. 22, DSR 1997:I, 167 at 186 ).   
150 Appellate  Body Report, US – Carbon Steel , para.  127. See also Appellate  Body Report, Korea – Dairy , 
paras.  124-127. 
151 Appellate  Body Report, EC and certain member States – Large Civil Aircraft , para.  642 (referring to 
Appellate  Body Report s, EC – Bananas III, para.  143; and US – Carbon Steel , para.  127). 
152 Appellate  Body Report , Mexico – Corn Syrup  (Article  21.5 – US), para.  36 (quoting Appellate  Body 
Report, United  States  – 1916 Act , fn 32, para.  54). 
153 Appellate  Body Report , EC – Bananas III , para.  142. 
154 Appellate  Body Report , Mexico – Corn Syrup (Article  21.5 – US), para.  36. See also para.  53. WT/DS592/R  
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  European  Union  had referred to MEMR Regulation No.  7/2020 as a measure  that implemented the 
DPR155 and asked the European  Union  to clarify whether it  sought findings with respect to this 
regulation in its claim against the DPR.156 The regulation post -dates the consultations request 
(2019), but not the request for establishment of a panel (2021).  
7.1.1   Main a rguments of the parties  
7.6.  The European  Union  clarifie s that its request for findings on the export prohibition is limited to 
the legal instruments that currently implement the measure.157 The European  Union  states that it 
only mentioned any previously applicable instruments of Indonesia through which the expo rt 
prohibition was implemented " to give the proper framework of the instruments currently in force ".158 
The European  Union  referred to Article  66 of MEMR Regulation No.  7/2020 in its first written 
submission as one of the legal instruments by which the DPR is implemented.159 In response to a 
request for clarification from the Panel, the European  Union  explained that it requests the Panel to 
make findings on this regulation.160  
7.7.  The Panel subsequently asked the European  Union  to specifically address the iss ue of whether 
MEMR Regulation No.  7/2020 was within the Panel's terms of reference even though it was not listed 
in either the consultations or panel request.161 In response, the European  Union  noted that the 
regulation was not in force at the time of the c onsultations request.162 The European  Union  contends 
that the DPR is described clearly in both the consultations request and the request for establishment 
of a panel and that the list of legal instruments implementing the DPR contained in those requests 
makes clear that it is not exhaustive.163  
7.8.  The European  Union  notes that the recitals in MEMR Regulation No.  7/2020 indicate that it is 
meant to adjust MEMR Regulation No.  11/2018 and serves to implement Law No.  4/2009. MEMR 
Regulation No.  11/2018 and Law No.  4/2009 were both listed in the consultations request while 
Law No. 4/2009 was listed in the request for establishment of a panel. The European  Union  explains, 
in this respect, that its request for establishment of a panel covers amendments and implementing  
measures or any other related measures to those contained in the request. The European  Union  also 
notes that the express language of Article  66 of MEMR Regulation No.  7/2020 is directly linked to 
and reinforces the DPR.164  
7.9.  Indonesia maintains that MEMR Re gulations 7/2012, 11/2012, and 20/2013 clearly do not fall 
within the Panel's terms of reference because they expanded the temporal scope of the dispute to 
include measures that pre -date those that were referred to in the consultations request and changed 
the essence of the dispute to include measures that permitted the export of nickel ore.165 Indonesia  
argues that the purpose of MEMR Regulation No.  7/2020 is not to implement any of the legal 
instruments the European  Union  identified as a specific measure at issue in its request for 
establishment of a panel. According to Indonesia , MEMR Regulation No.  7/2020 is not aimed at 
adjusting the DPR, but rather at regulating the provisions on the procedures for the granting of 
areas, licensing, and reporting for mineral and coal -mining business activities and is expressly linked 
 
155 With respect to Law No.  3/2020, the Panel notes that the law expressly amends Law No.  4/2009. 
Both the European  Union 's requests for consultations and establishment of a panel state that the requests 
cover the listed legal instruments as well as "any annexes thereto, notices, preliminary findings, reviews, 
amendments, supplements, replacements, renewals, extensions, implementing measure s or any other related 
measures" . The Appellate  Body and prior panels have accepted the use of such language as an appropriate 
mechanism for including legal instruments that are not expressly listed within a panel's terms of reference. See 
Appellate  Body Report, European  Communities  – Bananas III , para.  140. See also, Panel  Report s, EC – IT 
Products , para.  7.140; Japan – Film, para.  10.8; and China – Publications and Audiovisual Products , 
para. 7.20. The Panel, therefore, saw no reason to doubt that Law No.  3/2020 is included within the Panel's 
terms of reference.  
156 Panel question No s. 20 and 22.  
157 European  Union 's opening statement at the first meeting of the Panel, para.  6. 
158 European  Union 's opening statement at the first meeting of the Panel, para.  8. 
159 European  Union 's first written submission, para.  36. 
160 European  Union 's response to Panel question No.  22. 
161 Panel question No.  72. 
162 European  Union 's response to Panel question No.  72. 
163 European  Union 's response to Panel question No.  72. 
164 European  Union's response to Panel question No.  72. 
165 Indonesia's response to Panel question No.  21 (referring to Appellate  Body Report, 
Argentina  – Import Measures , para.  5.3). WT/DS592/R  
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  to Articles 124 -126 of Law No.  4/2009 , which relate to mining services efforts. Indonesia also notes 
that MEMR Regulation No.  11/2018, which MEMR Regulation  No. 7/2020 amends, was not identified 
by the European  Union  in its request for establishment of a panel as one of the specific measures at 
issue that purportedly implement the DPR.166 In Indonesia's view, the inclusion of MEMR Regulation 
No. 7/2020 in thes e proceedings would impermissibly expand the scope and change the essence of 
this dispute.167 
7.1.2   Analysis by the Panel  
7.10.   Articles 4 and 6 of the DSU require that complaining Members identify the measures at issue 
in both the consultations request and request for  establishment of a panel and that such measures 
be the subject of consultations before they can be included in a panel's terms of reference. If the 
European  Union  requests findings on a measure that was neither consulted upon nor mentioned in 
its request for establishment of a panel , that measure could be outside the Panel's terms of 
reference. At the same time panels and the Appellate  Body have recogni zed that the situation of a 
dispute may change over time as a complaining Member learns more through the course of 
consultations or as a responding Member updates or changes its measures. Complainants are, 
therefore, given some flexibility with respect to their manner of compliance with the obligations in 
Articles 4 and 6 of the DSU so long as the respondent' s due process rights are not prejudiced. Panels 
and the Appellate  Body have recognized that respondents must receive adequate notice of the case 
before them and that additions to the legal instruments considered under a panel's jurisdiction 
should not chan ge the essence of the nature of a dispute or expand its scope.168 
7.11.   Although identification of a measure by reference to the name and number of a particular 
legal instrument is the easiest way for a Member to comply with Articles 4 and 6 of the DSU, it is 
not required. A complainant may substantively identify a measure, e.g. by providing a narrative 
description of the nature of the measure so that a panel and the responding party may discern the 
measure from the consultations or panel request.169 This is especi ally important as the concept of a 
measure as contained in Article  3.3 of the DSU is not to be equated with the concept of a particular 
legal instrument (e.g. laws or regulations). A measure for the purposes of WTO dispute settlement 
encompasses any act or  omission attributable to a Member and may, therefore, be inclusive not only 
of individual legal instruments but also of actions, unwritten practices, or several instruments or 
actions operating together.170 
7.12.   With respect to the additional regulations Indone sia refers to, the Panel notes the 
European  Union 's clarification that it is only seeking findings and recommendations with respect to 
the export prohibition that was imposed in January 2014 as it is currently legally enforced – i.e. via 
MOT Regulation No.  96/2019 and MEMR Regulation No.  11/2019. There is no debate that these 
instruments are within the Panel's terms of reference. The Panel takes note of the European  Union 's 
clarification that any reference to prior instruments, including those that pre -date 2014,  was to 
provide context for understanding the current situation and that it did not seek findings or 
recommendations on those legal instruments. This clarification is sufficient to ensure that the 
European  Union 's claims have not prejudiced Indonesia's due process rights, nor have they exceeded 
the Panel's terms of reference. T he inclusion of legal instruments in the request for establishment of 
a panel or in written submissions that did not appear in the consultations request is not ideal.  The 
European  Union, however,  is not seeking finding s on these regulations. The Panel, therefore , sees 
no need to make a specific ruling with respect to whether they might be included in its terms of 
reference under the standard discussed above.    
7.13.   Turning to MEMR Regulation  No. 7/2020, i n light of the guidance from the Appellate  Body and 
of previous panels, the Panel is of the view that it would be within the Panel's terms of reference if 
its content is covered by the narrative description of the DPR in the requests for cons ultations and 
establishment of a panel.  
 
166 Indonesia's comments on the European  Union 's response to Panel question No.  72. 
167 Indonesia's comments on the European  Union 's response to Panel question No.  72. 
168 Panel  Report , China  – Publications and Audiovisual Products , para.  7.20 (referring to  Panel  Report , 
EC – Bananas III , para.  7.27; also Panel  Report , US – Carbon Steel , para.  8.41).  
169 Appellate  Body Report , US – Continued Zeroing , para.  168. 
170 Appellate  Body Report, US – Corrosion -Resistant Steel Sunset Review , para.  81. See also 
Appellate  Body Report, US – Softwood Lumber IV (Article  21.5 – Canada) , para.  67. WT/DS592/R  
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  7.14.   In this case, the European  Union  identified the specific measure at issue as the DPR and 
provided a narrat ive description of the DPR in both its requests for consultations and establishment 
of a panel. In its consul tations request, the European  Union  noted that exports of certain mining 
products, including nickel had to undergo processing and/or purification activities in Indonesia as 
determined by the MEMR and that minerals that have not undergone such processing an d/or 
purification operations may not be exported.171 In its request for establishment of a panel, the 
European  Union  noted that the DPR obliges  mining companies to enhance the value of the relevant 
raw materials through the conduct of certain processing and /or purification operations in Indonesia 
before exporting them , which has "the consequence of preventing exports of the raw materials 
concerned unless they have been duly processed and/or purified" .172 Although the European  Union  
provided an illustrative li st of legal instruments that implement the challenged measures in both its 
requests for consultations and establishment of a panel, the narrative description of the measure 
serves to notify Indonesia of the essence and scope of the dispute irrespective of what legal 
instruments within Indonesia's system create the situation identified. Indonesia was adequately 
notified that the European  Union  was concerned with the Indonesian government 's efforts to prohibit 
the exportation of nickel ore and require, instea d, that it be processed or refined domestically with 
only the subsequent downstream products permitted to be exported.  
7.15.   The Panel compares the European  Union 's description of the DPR to the wording in Article  66 
of MEMR Regulation No.  7/2020. Article  66 prohibits holders of IUP and IUPK from " sell[ing] products 
resulting from Mining abroad before carrying out processing and/or refineries domestically in 
accordance with provisions of laws and regulation s…".173 The Panel finds striking identity between 
the w ording of Article  66 and the European  Union 's description of the DPR. Article  66 operates 
precisely as the European  Union  alleges the measure it refers to as the DPR operates. In the Panel's 
view, the European  Union 's requests for consultations and establi shment of a panel adequately 
described the substantive nature of Article  66 of MEMR Regulation No.  7/2020 such that the 
European  Union  has complied with both Articles 4 and 6 of the DSU.  
7.16.   In light of the above, the Panel finds that Article  66 of MEMR Regul ation No.  7/2020 is, 
therefore, within its terms of reference.  
7.2  Article  XI of the GATT  1994  
7.17.   The European  Union  challenges both the export ban and the DPR as being inconsistent with 
Article  XI:1 of the GATT  1994. Indonesia, for its part,  requests the Panel to find that (i) the European 
Union has failed to establish a prima facie  case that the DPR is inconsistent with Article XI:1 of the 
GATT 1994, (ii) the measures at issue constitute export prohibitions or restrictions temporarily 
applied to prevent or reli eve critical shortages of a product essential to Indonesia, within the meaning 
of Article XI:2(a) of the GATT 1994, and (iii) alternatively, should the Panel find that the measures 
at issue do not fall within the scope of Article XI:2(a) and are inconsiste nt with Article XI:1 of the 
GATT 1994, these measures are justified under Article XX(d) of the GATT 1994 . 
7.18.   Article  XI:1 of the GATT  1994 states:  
No prohibitions or restrictions other than duties, taxes or other charges, whether made 
effective through quotas , import or export licences or other measures, shall be instituted 
or maintained by any contracting party on the importation of any product of the territory 
of any other contracting party or on the exportation or sale for export of any product 
destined for  the territory of any other contracting party.  
7.19.   Article  XI:1 does not permit the maintenance or imposition of prohibitions or restrictions other 
than duties, taxes or other  charges, whether made effective through quotas, export  licences or other 
measures, o n the exportation  or sale for export of any product destined for  the territory  of any other 
Member . Thus, to prove an inconsistency with Article  XI:1, the European  Union  must demonstrate 
two elements: (i)  that Indonesia's measures are a prohibition or restriction on the exportation or 
 
171 WT/DS592/1.  
172 WT/DS592/3.  
173 MEMR Regulation No.  7/2020 (Exhibit EU -12(b)).   WT/DS592/R  
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  sale for export of products from Indonesia, and (ii)  that the prohibition is made effective through 
"quotas, import or export licences or other measures".174  
7.20.   Article  XI:2 of t he GATT  1994 excludes certain types of restrictions or prohibitions on 
importation and exportation from the general obligation to eliminate quantitative restrictions under 
Article  XI:1. In particular, subparagraph (a) of Article  XI:2 provides that the prov isions of paragraph 
1 shall not extend to:  
Export prohibitions or restrictions temporarily applied to prevent or relieve critical 
shortages of foodstuffs or other products essential to the exporting contracting party; 
… 
7.21.   Unlike with an affirmative defence, a respondent invoking Article  XI:2(a) is not admitting to 
an inconsistency with Article  XI:1 that is nevertheless justified, but rather maintaining that there is 
no obligation under Article  XI:1 of the GATT  1994.175 Although Article  XI:2(a) is not an affirmative 
defence, prior panels have found that the burden of proof still rests on the respondent to 
demonstrate that the conditions of Article  XI:2(a) are satisfied.176  
7.22.   To demonstrate that a measure satisfies the conditions of Article  XI:2(a), Indonesia must 
show that its measures are export prohibitions or restrictions  on foodstuffs or products that are 
essential to it and that  are temporarily applied to prevent or relieve critical shortages. These 
requirements are cumulative. If a respon dent fails to demonstrate one of them then exclusion from 
the obligations in Article  XI:1 of the GATT  1994 would not apply.177 
7.23.   The Appellate  Body has explained that Article  XI:2(a) of the GATT  1994 "must be interpreted 
so as to give meaning to each of the c oncepts contained in that provision. At the same time, the 
Panel  must take into account that these different concepts impart meaning to each other".178 "For 
example, whether a shortage is 'critical ' may be informed by how 'essential ' a particular product is. 
In addition, the characteristics of the product as well as factors pertaining to a critical situation, may 
inform the duration that a measure can be maintained. "179 
7.24.   The Panel notes that Indonesia formulates its arguments in a manne r that treats 
Article  XI:2(a) of the GATT  1994 more as an affirmative defence rather than an exclusion from 
application of Article  XI:1 of the GATT  1994. Specifically, Indonesia only argues that the measures 
are within the scope of Article  XI:2(a) of the G ATT 1994 in the event that the Panel finds that the 
measures at issue are inconsistent with Article  XI:1 of the GATT  1994.180 
7.25.   Article  12.7 of the DSU requires that the report of a panel "set out the findings of fact, the 
applicability of relevant provisions  and the basic rationale behind any findings and recommendations 
that it makes" .181 Given the nature of Article  XI:2(a) of the GATT  1994 as an exclusion from 
applicability of the obligations in Article  XI:1 of the GATT  1994, the Panel will first determine w hether 
Indonesia's measures satisfy all the elements of Article  XI:2(a) of the GATT  1994. If the Panel  finds 
that Article  XI:1 is applicable to the measures at issue, the Panel will move  on to an analysis of the 
European  Union 's claims under Article  XI:1 o f the GATT  1994. 
7.2.1   Whether  Indonesia 's measures constitute prohibit ions or restrictions on  the export  
or sale for export  of nickel ore  
7.26.   The Appellate  Body explained in China – Raw Materials  that the exemption from application 
of Article  XI:1 of the GATT  1994 contained in Article  XI:2(a) of the GATT  1994 necessarily applies 
 
174 Panel  Report , EU – Energy Package, para.  7.243; and India – Quantitative Restrictions, para.  5.129.  
175 Appellate  Body Report s, China – Raw Materials , para.  334. 
176 Panel  Report s, China – Raw Materials, para. 7.213.  
177 Appellate  Body Report, Japan  – Apples , para.  176, referring to Appellate  Body Report, 
Japan  – Agricultural Products II , para.  89 (explaining that when requirements are clearly cumulative in nature 
whenever one of them is not met the measure at issue does not satisfy that provision).  
178 Appellate  Body Reports, China – Raw Materials , para.  328. 
179 Appellate  Body Reports, China – Raw Materials , para.  328. 
180 Indonesia's first written submission, para.  231. 
181 Article  12.7 of the DSU (emphasis added).  WT/DS592/R  
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  to the same types of measures as Article  XI:1 of the GATT  1994 namely any measure prohibiting or 
restricting the exporta tion of certain goods.182 
7.27.   The term "prohibition" within the meaning of Article  XI of the GATT  1994 is a " legal ban on 
the trade or importation of a specified commodity ", whereas the term "restriction", which is broader 
than prohibition183, is defined as a "t hing which restricts someone or something, a limitation on 
action, a limiting condition or regulation".184 The Appellate  Body has considered that these terms 
are informed by the notion of "quantitative" in the title of Article  XI:1 of the GATT  1994.185 
Accor dingly, this provision "covers those prohibitions and restrictions that have a limiting effect on 
the quantity or amount of a product being imported or exported".186 Thus, only those prohibitions 
or restrictions limiting importation or exportation fall with in the scope of Article  XI:1 of the 
GATT  1994. The complaining Member must specify how it believes a challenged measure is 
inconsistent with Article  XI:1 of the GATT  1994 and thus must explain whether it believes the 
measure restricts or prohibits exportat ion and how it does so.  
7.28.   A party demonstrates whether a restriction or prohibition exists through the design, 
architecture and revealing structure of the measure considered in its relevant context, and not by 
quantifying its effects through examining trade flows.187 While numerical or statistical data on the 
actual effects of a measure on trade flows is not essential to establishing an inconsistency, it may 
be used as evidence to inform the overall examination of whether a measure has a limiting effect 
within  the meaning of Article  XI:1 of the GATT  1994.188 Although intent is not an element specifically 
referred to or required in WTO dispute settlement, evidence of an intended outcome of a policy may, 
similarly, be part of the relevant context a panel examines when evaluating a measure.189 
7.29.   The phrase "made effective through", which precedes the terms "quotas, import or export 
licences or other measures" in the provision is understood to mean that "the scope of Article  XI:1 
covers measures through which a prohibit ion or restriction is produced or becomes operative".190 
The Appellate  Body has also referred to the concept of effectiveness when relating to a legal 
instrument or governmental measure, as "in operation at a given time" or "being 'operative', 'in 
force', o r as having 'come into effect' ".191  
7.30.   With respect to the type of measure the prohibition or restriction must be made effective 
through, in this dispute the European  Union  has referenced an export prohibition and a requirement 
to process or purify ore before the resulting product can be exported. Both of these measures fall 
within the broad category of "other measures ".192 Although the concept of "other measures" is broad, 
the scope of Article  XI:1 is not unfettered. Article  XI:2 restricts the scope of application of 
Article  XI:1 by providing that the provisions of Article  XI:1 shall not extend to the areas listed 
therein.193 Similarly, certain provisions of the GATT  1994, such as Articles XII, XIV, XV, XVIII, XX, 
 
182 See Appellate  Body Report s, China – Raw Materials, paras.  319-321. 
183 Panel  Report , India – Autos , para.  7.270.  
184 Appellate  Body Report s, Argentina – Import Measures , para.  5.217 (quoting  Appellate  Body Report s, 
China – Raw Materials , para.  319). 
185 Appellate  Body Report s, China – Raw Materials,  para. 320. 
186 Appellate  Body Report s, China – Raw Materials,  para. 320. 
187 Appellate  Body Report s, Argentina – Import Measures , para.  5.217.  
188 Panel  Report , Indonesia – Import Licensing Regimes, para.  7.50. 
189 Panel  Report , Mexico – Taxes on Soft Drinks , para.  8.91. See also  Appellate  Body Report , 
Japan  – Alcoholic Beverages II , pp. 27 -28, DSR 1996:I, p. 97, at pp. 119  and Appellate  Body Report , 
Canada  – Period icals, pp. 30 -32, DSR 1997:1, p. 449, at pp. 475 -476.   
190 Appellate  Body Report s, Argentina – Import Measures , para.  5.218.  
191 Appellate  Body Report, US – Gasoline , p. 20, DSR 1996:I, p. 19 (quoting The New Shorter Oxford 
English Dictionary on Historical Principles, L. Brown (ed.) (Clarendon Press, 1993), Vol. I, p. 786). See also 
Appellate  Body Reports, Argentina – Import Measures , para.  5.218.  
192 Panel  Report , Argentina – Hides and Leather , para.  11.17  (noting that this category includes de facto 
measures ); and Panel  Report , Japan – Film, para.  10.56; and China – Raw Materials , para s. 7.1005 , 7.1026, 
and 7.1036 . (other measures include those implemented or enforced by non -government actors if there is 
sufficient governmental involvement) . 
193 Appellate  Body Reports , Argentina – Import Measures , para.  5.219.  WT/DS592/R  
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  and XXI, permit a Member, to justify an inconsistency with the obligations under Article  XI:1 if all of 
the conditions for that justification are satisfied.194  
7.31.   Indonesia  argues that both the export prohibition and the  DPR fall within the scope of 
Article  XI:2(a) of the GATT  1994 because "[b]y its express terms, Article  XI:2(a) applies in respect 
of 'export prohibitions or restrictions'"195, that is, it applies to "measures which either 'legally ban' 
or have a 'limiting effect' on exports ".196 Indonesia submits that because both sides agree that the 
measures at issue restrict or limit exports that it is undisputed that they fall within the purview of 
Article  XI:2(a).197 At the same time, Indonesia also argues that to the ex tent the DPR remained in 
place while exports were entirely prohibited , it would be a measure affecting internal sale of nickel 
to be assessed under Article  III:4 rather than Article  XI:1.198 Indonesia explains that its invocation 
of Article  XI:2(a) of the G ATT 1994 with respect to the DPR is contingent upon this Panel concluding 
that the DPR entails an export restriction under Article  XI:1 of the GATT  1994. Should the Panel 
agree with the European  Union  that the DPR entails a "restriction" on the exportation  of nickel ore, 
then Indonesia posits that this measure falls within the scope and meets the requirements of 
Article  XI:2(a) of the GATT  1994.199  
7.32.   The Panel will, therefore, begin its analysis under Article  XI of the GATT  1994 with the element 
in common between both Article  XI:1 and Article  XI:2(a) – whether the measures at issue are 
prohibitions or restrictions. The Panel will address each measure in turn.  
7.2.1.1    The export ban  
7.2.1.1.1   Main arguments of the parties and third parties  
7.33.   The Eur opean  Union  argues that Indonesia has prohibited or restricted the export of nickel 
ore intermittently since January 2014 and presents a selection of Indonesia's various regulations in 
a chronological progression since 2014 ending with MEMR Regulation No.  11/2019 and MOT 
Regulation No.  96/2019 that were promulgated in 2019 and entered into force on 1  January  2020. 
As noted in section 2.1.1 above, the European  Union  has clarified that its references to the various 
regulations prior to 2019 provide context on the export prohibition currently implemented through 
MEMR Regulation No.  11/2019 and MOT Regulation No.  96/2019 , but it does not seek specific 
findings or recommen dations on those legal instruments that did implement the export ban, but are 
no longer in force.  
7.34.   The European  Union  explains the timeline and scope of the various restrictions and 
prohibitions thus200: 
 
194 Appellate  Body Reports, Argentina – Import Measures , para s. 5.220 -5.221  (referring to 
Appellate  Body Report, Argentina – Textiles and Apparel , para.  73). The Panel notes Indonesia has raised a 
defence under Article  XX(d) of the GATT  1994 if the Panel were to find Indonesia's measures not within the 
scope of Article  XI:2(a) an d inconsistent with Article  XI:1. The Panel will discuss this in section 7.3 below.   
195 Indonesia's first written submission, para.  89. 
196 Indonesia's first written s ubmission, para.  90. 
197 Indonesia's first written submission, para.  91. 
198 Indonesia's first written submission, paras.  102-103. 
199 Indonesia's response to Panel question No.  14. 
200 European  Union 's first written submission, paras.  23-26. WT/DS592/R  
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  Table  2: European  Union 's timeline of Indonesia's restrictions and prohibitions  
Regulation  Provision  Scope of the restriction  
MEMR Regulation 
No. 7/2012  Article  1 No.  6, and 
Article  21 Prohibition on the export of unprocessed and 
unrefined minerals . 
MEMR Regulation 
No. 11/2012  Article  1 No.  1, amending 
MEMR Regulation 
No. 7/2012 by inserting a 
new Article  21A into MEMR 
Regulation No.  7/2012  Allows for the export of mineral ore subject to a 
"recommendation" by the minister . 
MEMR Regulation 
No. 20/2013  Article  I, amending 
Article  21A of MEMR 
Regulation No.  7/2012  Allows for the export of mineral ore until 
12 January  2014, subject to obtaining an approval 
by the minister of trade. Approval granted if the 
mining permit holders submitted a plan concerning 
the domestic  processing and/or refining of minerals.  
 
Complete prohibition on export of mineral ore as of 
13 January  2014. 
MEMR Regulation 
No. 1/2014  Article  12(1), (3) and (4)201 
 Allows for the export of certain minerals subject to 
compliance with DPR and approval by the minister.  
 
Any export of nickel was however specifically 
excluded from this possibility.  
MOT Regulation 
No. 1/2017  Article  3, 4(a)(2), and 
Appendices III and IV  Unprocessed and unrefined mining products were 
subject to an export prohibition, unless they were 
mentioned in Appendix  III to the Regulation. 
Appendix  III mentions ore with a concentration of 
less than 1.7 % Nickel. Such ore could therefore be 
exported, subject to several  strict conditions and 
notably to the condition that the exporter had built 
(or was building) a purifying facility.  
 
Ore with a nickel content above 1.7 % (high -value 
ore) however could not be exported.  
MEMR Regulation 
No. 25/2018  Article  46(1), (2) and 5 0(1) Export of ore with a nickel content of less than 1.7 
% could only occur until 11  January  2022. Such 
exports were furthermore subject to the condition 
that the exporters had built (or was building) a 
purification facility and to approval by the ministe r. 
MEMR Regulation 
No. 11/2019  Article  I(1), amending MEMR 
Regulation No.  25/2018 by 
deleting the relevant 
reference in Article  46(1) of 
MEMR Regulation 
No. 25/2018, and Articles 
I(2) and II  Revokes the possibility to export low -quality ore 
(with a nickel content of less than 1.7%)  
As from the entry into force of this regulation, prior 
ministerial approvals for export of ore with nickel 
content of less than 1 .7 % became invalid.  
 
It results in a total prohibition of exports of nickel 
ore as of 1  January 2020. 
MOT Regulation 
No. 96/2019  Articles 3 and 27(1)  Exports of raw material or ore mentioned in 
Appendix  IV to the Regulation is prohibited. Nickel 
ore is specifically mentioned in this appendix.  
 
Export approvals issued on the basis of Regulation 
1/2017 become invalid.  
7.35.   In its substantive arguments, the European  Union  focuses on the plain meaning of MEMR 
Regulation No.  11/2019 and MOT Regulation No.  96/2019 and argues that the two measures 
expressly prohibit the export of nickel ore.  
7.36.   MEMR Regulation No.  11/2019 does not itself expressly prohibit all nickel exports, but rather 
amends an earlier regulation to remove an exemption from previous prohibitions that allowed for a 
limited possibility to export low -quality nickel ore (with content of  less than 1.7%) and invalidated 
any pre -existing export approvals as of 1  January  2020. The European  Union  argues that this was 
 
201 Article  13 revokes MEMR Regulation No.  7/2012 as amended by MEMR Regulation No.  20/2013.  WT/DS592/R  
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  accomplished by Article  1 of MEMR Regulation No.  11/2019 deleting the relevant reference in 
Article  46(1) of MEMR Regulation No . 25/2018. The European  Union  argues, therefore, that MEMR 
Regulation No.  11/2019 resulted in a total prohibition on exports of nickel ore starting from 
1 January  2020.202  
7.37.   The earlier -in-time regulations  the European  Union  describes as implementing the export ban 
in the past are not, therefore, completely irrelevant to an understanding of the current situation . 
The 2019  regulations cannot be read in isolation from the 2017 and 2018 regulations as the 2019 
regulations simply  remove exemptions that had been granted and thus return to the status quo ante 
of a complete prohibition.  Those  regulations also relate back to the initial ban in January 2014. As 
noted in paragraph  2.12, the Panel is therefore of the view that the measure before it is the export 
ban. That ban is currently being implemented via MOT Regulation No.  96/2019 and MEMR Regulation 
No. 11/2019.203 The Panel w ill, therefore, consider in its analysis of the export ban the prior legal 
instruments that implemented it204, but will limit any  recommendations the Panel  makes to those 
legal instruments currently in force.205   
7.38.   Indonesia  does not dispute that it currently  prohibits the export of nickel ore206 or that it has 
done so in some form or another since January 2014.207 Indeed, Indonesia acknowledges that 
demonstrating that the measure is a prohibition or restriction within the meaning of Article  XI of the 
GATT  1994 is a necessary element of its case that the measure is excluded from the application of 
Article  XI:1 by virtue of its falling within the scope of Article  XI:2(a).208   
7.2.1.1.2   Analysis by the Panel  
7.39.   The European  Union  argues that the specific wording of the relevant regulations clearly and 
unequivocally spell s out an export  prohibition  on nickel ore . The two regulations, MEMR Regulation 
No. 11/2019 and MOT Regulation No.  96/2019  contain , according to the European  Union , by their 
very terms , a prohibition of exports. The European  Union  contends that by making exports illegal, 
the two regulations have the inherent effect of limiting exports and therefore constitute an export 
prohibition within the meaning of Article  XI:1 of the GATT  1994.209 As noted above, Indonesia does 
not dispute this.  
7.40.   The explicit language of the two regulations shows their design, architecture and revealing 
structure to be that of a prohibition on exports of nickel ore. The Panel finds relevant contex t in Law 
No. 4/2009 that created the framework for the MEMR and MOT to regulate mining in Indonesia, 
including nickel ore. The Panel also considers the succession of regulations limiting or prohibiting 
the export of nickel ore, all adopted pursuant to Law No. 4/2009, dating back to at least 
January  2014 as relevant context for understanding the impact of the two regulations (MEMR 
Regulation No.  11/2019 and MOT Regulation No.  96/2019) that are currently in force.  
7.41.   Considering all these elements, the Panel fi nds that the European  Union  has demonstrated, 
and Indonesia has admitted, that Indonesia imposes a prohibition on exports of nickel ore that is 
currently implemented through the operation of MEMR Regulation No.  11/2019 and MOT Regulation 
No. 96/2019.  
 
202 European  Union 's first written submission, para.  24 referring to  MEMR Regulation No.  11/2019  
(Exhibit EU -10(b)).  
203 As noted above, if those measures were to be amended or superseded by new ones, they may well 
fall within the Panel's terms of reference without expanding the essence or scope of the dispute in light of how 
the European  Union  has identified the challenged  measure and formulated its claim.  
204 The Panel notes, in this respect, that Indonesia itself argues that the prior instances of the imposition 
of the export ban are relevant to evaluating the present situation in its defence under Article  XI:2(a) with 
respect to the temporary nature of the ban. See Indonesia's first written submission, paras.  58-59. 
205 Panel  Report , Chile – Price Band System , para.  7.112. See also Appellate  Body Report, US – Certain 
EC Products , para.  81 ("the panel erred in recommending that the DSB request the US to bring into conformity 
… a measure which the panel has found no longer exists").  
206 Indonesia's first written submission, paras.  56-57. 
207 See e.g. Indonesia's response to Panel question No.  13 ("This corroborates Indonesia's position that 
export prohibitions introduced by MEMR Regulation 1/2014 had a limiting effect on international trade in nickel 
ore.") . 
208 Indonesia's first written submission, para.  91. 
209 European  Union 's first written subm ission, para.  47. WT/DS592/R  
BCI deleted , as indicated [[***]]  
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  7.2.1.2   Domes tic processing requirement  
7.42.   Unlike with the export ban, Indonesia disputes the European  Union 's assertion that the DPR 
is a restriction within the meaning of Article  XI of the GATT  1994. Indonesia maintains that the DPR 
does not fall within the scope of Art icle XI of the GATT  1994.210 Indonesia first argues that the scope 
of Article  XI only extends to border measures and that the DPR is an internal measure. Indonesia 
next argues that the DPR does not have a limiting effect and thus cannot be a restriction wit hin the 
meaning of Article  XI of the GATT  1994.  
7.2.1.2.1   Whether Article  XI of the GATT  1994  applies to a measure such as the DPR  
7.2.1.2.2   Main a rguments of the parties and third parties  
7.43.   The European  Union  argues that the DPR, made effective via Law No.  4/2009 together with 
the implementing regulations, i.e. MEMR Regulation No.  25/2018 (and its amendments in MEMR 
Regulation Nos. 50/2018 and  11/2019) as well as MEMR Regulation No.  7/2020, is a restriction on  
the export of nickel ore from Indonesia within the meaning of Article  XI:1 of the GATT  1994.211 
7.44.   The European  Union  identifies, in particular, Articles 102 and 103 that require holders of IUP 
and IUPK permits to increase the added value of mineral in mining  business activities through 
processing and refinery for metal mineral mining commodity (Article  102)212 and to conduct mineral 
processing and/or refinery of mining products domestically  (Article  103).213  
7.45.   With respect to MEMR Regulation No.  25/2018, the Eur opean  Union  points to the following 
provisions as creating a restriction on the export of nickel ore from Indonesia.214 
Table  3: Provisions of MEMR Regulation No.  25/2018 identified by the European  Union   
Provision  Substance  
Article  1 
(paras.  19-
21) 19. Processing and/or refining shall mean mining business activities to improve the quality 
of mineral and/or coal, utilize and obtain its derived minerals.  
20. Mineral processing shall mean an effort to improve the quality  of mineral that produces 
products with the same physical and chemical characteristics as the origin mineral  
21. Mineral refining shall mean an effort to improve the quality of metal minerals through an 
extraction process and an additional purity enhanceme nt process resulting in products with 
different physical and chemical properties from the origin minerals.  
Article  16 Obligation for the holders of a mining business licen ce to engage in processing and 
purification of coal and of minerals which they mine . 
Article  17 Requires IUP and IUPK for operation holders and IUP for processing holders to first carry out 
the value added enhancement through processing and/or refining activities in accordance 
with the minimum thresholds of processing and/or refining  as listed in Appendix  I, 
Appendix  II, and Appendix  III before conducting export activities. Those minerals not listed 
in the Appendices may only be sold to overseas after the Minister stipulates the minimum 
thresholds for processing and/or refining . 
Appendices 
I, II, III  Contain detailed descriptions for the kind of processing or purification required for different 
types of minerals . 
Article  19 Confirms that minerals can only be sold abroad once they have been subject to the "minimum 
limits of proces sing/purification" fixed by the Regulation. These obligations exist for holders 
of mining business permits (Article  19(1)) as well as for "other parties" (Article  19(3)) . 
Chapter XV  Contains more obligations concerning purification and/or processing before minerals or coal 
can be exported . 
Source: MEMR Regulation No.  25/2018 (Exhibit EU -9(b)). 
 
 
210 Indonesia's first written submission, para.  12. See also Indonesia's first written submission, 
paras. 80 and  84. 
211 European  Union 's first written submission, para s. 50-51. 
212 European  Union 's first written submission, para.  28, quoting  Law No.  4/2009, as amended by Law 
No. 3/2020  (Exhibit EU -2(b)). 
213 European  Union 's first written submission, para.  29, quoting  Law No.  4/2009  (Exhibit EU -1(b)). 
214 European  Union 's first written submission, paras.  30-35, referring to  MEMR Regulation No.  25/2018  
(Exhibit EU -9(b)). WT/DS592/R  
BCI deleted, as indicated [[***]]  
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  7.46.   With respect to MEMR Regulation No.  7/2020 the European  Union  argues that Article   66 of 
that Regulation prohibits IUP and IUPK holders from " selling products resulting from Mining abroad 
before carrying out processing and/or refineries domestically in accordance with provisions of laws 
and regulations ".215 
7.47.   The European  Union  notes that it is only the permit holders subject to the processing 
obligations that can conduct mining business activities in Indonesia. Insofar as these companies are 
under a legal obligation to purify or process raw mining products in Indonesia prior to exporting the 
relevant goo ds, these legal obligations are , according to the European  Union , designed and operate 
to restrict the possibility to export the unpurified and unprocessed raw mineral products  and, 
therefore,  have an inherent direct limiting effect on exports.216 
7.48.   Indonesia  argues that the DPR is  an internal requirement regulating the sale and processing 
of nickel ore, rather than a border measure regulating the "exportation …of [a] product", within the 
meaning of Article  XI:1. Indonesia submits that, properly interpreted, Article  XI:1 applies strictly to 
border measures that have a direct limiting effect on importation or exportation, and does not apply 
to internal measures.217 Moreover, Indonesia argues that since the adoption of the export ban on 1 
January 2020, the DPR re quirement in MEMR Regulation No.  25/2018 neither operates as a pre -
condition for the exportation of nickel ore nor restricts these exports because the exportation of 
nickel ore, regardless of concentration, is legally prohibited in the first place.218 According to 
Indonesia,  the export ban render s the DPR entirely inoperative with respect to exports.219  
7.49.   Indonesia notes that the measures in the illustrative list in Article  XI:1 of the GATT  1994 – 
quotas, import or export licences – are all border measur es in that they are triggered by, or apply 
by virtue of, importation or exportation rather than an internal factor behind the border – such as 
mining, processing, sale, or distribution.220 Indonesia argues that this delineation is not unfamiliar 
and has bee n endorsed by the Appellate  Body when seeking to define the scope of application of 
legal disciplines under the GATT  1994.221 In Indonesia's view, border measures apply by virtue of 
the event of importation (or exportation), while internal measures apply be cause of an internal 
factor. Indonesia's position is that as Article  XI:1 of the GATT  1994 only applies to border measures, 
the DPR, as an internal measure, is not subject to the obligations in Article  XI:1 of the GATT  1994.222 
7.50.   Indonesia argues that  the DPR imposes processing obligations on all mining companies 
regardless of whether sales are being conducted in the domestic or foreign market.223 Indonesia 
acknowledges that Article  17 of MEMR Regulation No.  25/2018 proscribes the exportation of nickel 
ore that has not undergone processing in accordance with the DPR. Indonesia, however, takes the 
position that this merely enforces the DPR in respect of exports and does not transform the DPR – 
an internal measure regulating the sale and processing of nickel or e – into a border measure.224  
7.51.   Indonesia relies on the Appellate  Body's reasoning in China – Auto Parts  to argue that the 
Panel must scrutinize the design , architecture , and revealing structure  of the measure as a whole  
to determine whether it applies by v irtue of exportation or, instead, by virtue of an internal factor.225 
Indonesia argues that a proper analysis of the DPR will show that its centre of gravity is not 
 
215 European  Union 's first written submission, para.  36, quoting  MEMR Regulation No.  7/2020 
(Exhibit  EU-12(b) ). 
216 European  Union 's first written submission, para.  50.  
217 Indonesia's second written submission, paras.  26 and 35.  
218 Indonesia's first written submission, para.  83. 
219 Indonesia's second written submission, para.  51. 
220 Indonesia's second written submission, para.  34. 
221 Indonesia's second written submission, para.  37 (referring to  Appellate  Body Report s, China – Auto 
Parts, paras.  158 and 167.  
222 Indonesia's second written submission, paras.  38-39. 
223 Indonesia's second written submission, paras.  41-42 (referring to Article  102 of Law No.  4/2009 and 
Article  16 of MEMR Regulation No.  25/2018). See also Indon esia's opening statement at the second meeting of 
the panel, para.  17. 
224 Indonesia's second written submission, para.  43. 
225 Indonesia's second written submission, paras.  43 and 44 (quoting  Appellate  Body Report s, China – 
Auto Parts , para . 171 – where the A ppellate  Body stated that:  
[A] panel must identify all relevant characteristics of the measure, and recognize which features 
are the most central to that measure itself, and which are to be accorded the most significance, 
for purposes of …determining the discipline(s) to which it is subject under the covered 
agreements. (emphasis original) )  WT/DS592/R  
BCI deleted , as indicated [[***]]  
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  exportation, but that it is an internal measure triggered by an internal factor, namely the production, 
sale and use of nickel ore.226 In Indonesia's view the European  Union  is seeking to radically expand 
Article  XI:1 of the GATT  1994 to prohibit non -discriminatory internal measures that are fully 
consistent with Article  III:4 of the GATT  1994, wh ich would be manifestly absurd and 
unreasonable.227 
7.52.   The European  Union  responds to Indonesia's arguments on the scope of Article  XI:1 of the 
GATT  1994 by noting three relevant aspects of Article  XI:1 of the GATT  1994. First, that the 
provision's wording is broad with no express limitation to border measures. The European  Union  
contrasts this with other provisions of the GATT  1994 that make specific reference to where  they 
apply – noting for example, that Article  III:2 refers to internal taxes or internal cha rges. Second, 
that the provision refers to "sale for export", which in the European  Union 's view is by its very 
definition a business activity that will regularly occur not on the occasion of a border crossing, but 
before  such a border crossing, i.e. internally . Third, that Article  XI:1 of the GATT  1994 would not 
specifically exclude taxes or other charges (which can be applied internally) from its scope if it were 
exclusively addressing border measures.228 
7.53.   Japan disagrees with Indonesia that the DPR is  subject to Article  III:4 of the GATT  1994 noting 
that the European  Union  does not allege differential treatment between products imported into 
Indonesia and those of national origin. Furthermore, the text of the underlying measure makes clear 
that the DPR  applies on the exportation of unprocessed nickel ore rather than on the internal sale of 
the product.229 
7.54.   Canada  comments that the Panel should focus on the "nature of the measure" rather than on 
whether the measure is an internal one or one that is applied  at the border. In Canada's view t he 
DPR operate s to limit the quantity or amount of product that may be exported and therefore properly 
falls under Article  XI:1 of the GATT  1994 rather than a case covered by Article  III:4 of the 
GATT  1994.230 Similarly, th e United Kingdom  states that the analysis should focus on whether there 
is sufficient nexus between the relevant measures and the act of importing and exporting the 
relevant product and that this requirement does not mean that a measure has to be applied a t the 
time of import (or export). 231  
7.2.1.2.3   Analysis by the Panel  
7.55.   Indonesia's arguments in this respect raise an interpretative question about the scope of 
Article  XI:1 of the GATT  1994 and then a factual contention with respect to the operation of the DPR 
itself. Indonesia's factual contention is only relevant if the Panel accepts Indonesia's interpretation 
that there are strict delineations in the GATT  1994 with respect to the scope of  obligations whereby 
some apply to internal measures and others to border measures.  
7.56.   In Indonesia's view, Article  XI:1 of the GATT  1994 only applies to so -called border measures 
and the DPR is not a border measure. In Indonesia's view this means that the D PR is outside the 
scope of Article  XI:1 of the GATT  1994.  
7.57.   The Panel notes that the term "border measure" appears nowhere in the GATT  1994. 
Members, panels, and the Appellate  Body have used the parlance of internal and border measures 
as a technique to dis tinguish between the types of measures that are covered by the basic obligations 
in the GATT  1994 – most-favoured nation (MFN), tariff bindings, quantitative restrictions, and 
national treatment. In the past, a delineation between what a border measure is and what an internal 
measure is has been used to determine which of the obligations in the GATT  1994 would be 
applicable to particular measures.232  
 
226 Indonesia's opening statement at the second meeting of the panel, para.  19. 
227 Indonesia's opening statement at the second meeting of the panel, para.  3. 
228 European  Union's response to Panel question No.  78. 
229 Japan's third -party submission, paras.  13-14. 
230 Canada's third -party response to Panel question No.  1 (referring to Panel  Report , Brazil – Retreaded 
Tyres , para.  7.372).  
231 United Kingdom's third -party response to Panel question No.  1. 
232 See Panel  Report , India – Autos, paras.  7.217 -7.224 ( quoting GATT Panel  Report , Canada – FIRA,  
para. 5.14). WT/DS592/R  
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  7.58.   Although such a technique  is useful when there is potential for more than one obligation to 
be applicable to  a particular measure, this is more likely to be the situation for measures that affect 
imports as Articles I, II, III, and XI of the GATT  1994 all regulate the treatment of imports from 
different perspectives. The GATT  1994 does not, however, require a st rict separation of the concepts 
permitting no overlap. Article  I states that the MFN obligation applies not only at the border, but 
also to measures covered under Article  III of the GATT  1994. Moreover, the Ad Note  to Article  III of 
the GATT  1994 clarifies  that measures may fall within the ambit of Article  III, which is typically seen 
as being triggered by an internal event, even if they are applied at the border.  
7.59.   With respect to Article  XI itself, there are several important elements to consider. First, 
Article XI:1 is an obligation to refrain from imposing quantitative restrictions, it is not a non -
discrimination provision, such as Article  III:4. Its coverage is not limited to imports, but also applies 
to measures on exportation or sale for export. The Pa nel also note s that  the provision distinguishes 
between the way it refers to the obligation with respect to imports and exports. Article  XI:1 of the 
GATT  1994 refers to measures on the importation of any product when referring to imports. When 
referring to  exports the provision uses a similar phrase: "on the exportation " but it also adds the 
additional clause "or sale for export". This must be given meaning. The use of the disjunctive "or" 
indicates that the two concepts exportation and sale for export are not to be conflated with each 
other. The similarity in the term "on the exportation" with "on the importation" indicates that it is 
this phrase that refers to border measures while sale for export refers to something else. As the 
European  Union  notes, sales for export will often take place entirely within the territory of the 
exporting Member. Accepting Indonesia's reading that Article  XI:1 of the GATT  1994 only applies to 
measures that regulate action at the border would, therefore, render the term "or sale for export" 
inutile.233  
7.60.   The Panel  agree s with Indonesia that the panel and Appellate  Body reports in China – Auto 
Parts provide useful guidance in this respect. That panel examined  the underlying purpose and centre 
of gravity of the measures rather than how the respondent classified or fashioned the challenged 
measure. In that case, the panel and Appellate  Body found that a measure that purported to be a 
customs duty was really an i nternal measure subject to Article  III:4 of the GATT  1994 (and not 
Article  II:1) because the additional duties charged were triggered by the internal use of the imported 
auto parts. In the instant case the Panel has  the converse situation – the measure app lies to 
domestic actors but operates to prevent the sale of nickel ore for export.  
7.61.   By their very nature measures governing exports will be addressed to domestic actors and 
not to foreign actors or products. Indeed, Indonesia has cited its inability to exe rcise jurisdiction 
over foreign purchasers as one of the reasons why the export prohibition is necessary to secure 
compliance with Indonesia's sustainable mining and mineral resource management requirements.234 
Measures on exportation or the sale for export  may be addressed to the producers of a product that 
only that Member produces or that faces no import competition.235 Indonesia's argument that the 
measure applies to all domestic producers regardless of whether they intend to sell on the domestic 
or forei gn market is , however,  tautological as what the measure does is require sales in the domestic 
market. The fact, therefore, that the measure addresses domestic actors does not remove it from 
the scope of Article  XI:1 of the GATT  1994. If this alone were suf ficient to make a measure fall 
outside the scope of Article  XI:1 of the GATT  1994 the entire obligation to avoid export restraints 
could be rendered inutile. This is so, particularly in the case of products where a country exports but 
does not import, whic h could often be the case with natural resources.  
7.62.   Indonesia acknowledges that the DPR is "triggered" by the production and sale of nickel ore.236 
Indonesia also acknowledges that miners of raw unprocessed nickel ore are not permitted to sell 
 
233 Panel  Report , India – Autos , para.  7.222 (noting that the principle of effective  treaty interpretation 
applies to prevent reducing any provision to inutility) . 
234 Indonesia's second written submission, paras.  174-175.  
235 The Panel recall s that Indonesia initially argued that the DPR would fall to be assessed under 
Article  III:4 of the GATT  1994. This, however, would be impossible as Article  III:4 applies to situations of 
competition between imports and a domestic like product. As Indonesia itself noted during the second meeting 
of the Panel it would be absurd to expect that Indonesi a would be importing nickel ore. In essence, therefore, 
the present case is not like the ones in India – Autos or China – Auto Parts  where a panel is faced with the 
question of whether one or the other provision of the GATT  1994 regulates a measure. The qu estion is whether 
the measure is covered by Article  XI:1 of the GATT  1994 or not at all.  
236 Indonesia's response to P anel question No.  78. WT/DS592/R  
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  their ore for e xport, turning domestic refineries into the only potential buyers.237 Indonesia also 
acknowledges that the refining process , which must take place domestically , transforms the nickel 
ore into another product and it is only these products that can be exported.238 This means that, if 
miners and producers fully adhere to the DPR, no nickel ore exists in Indonesia to be exported. The 
DPR thus prevents sale for export of raw unrefined nickel ore. The centre of gravity of the measure 
is precisely who the ore can be sold to. This is confirmed by Indonesia's response to the Panel's 
question as to how the DPR contributes to preventing the depletion of nickel ore reserves. I ndonesia 
explains that one way the DPR prevents depletion of nickel ore reserves is by limiting extraction to 
the installed capacity of domestic smelters and "entirely eliminat [ing] from the market extraction 
that is not in conformity with Indonesia's sust ainable mining and mineral resource management 
requirements" .239 Indonesia goes on to explain that mines that cannot comply with the requirements 
to sell to domestic smelters and were previously export -oriented are giving up their licen ces.240 
7.63.   Indonesia urge s the Panel to  find that the export ban renders the DPR irrelevant with respect 
to exports. If the Panel agreed with Indonesia in this regard and, at the same time, also found that 
the export ban is (a) not covered by Article  XI:2(a) of the GATT  1994, (b) inconsistent with 
Article  XI:1 of the GATT  1994, and (c) not justified under Article  XX(d) of the GATT  1994, the Panel 
would recommend that Indonesia remove the export ban. Indonesia could comply. In such a scenario 
the DPR would then spring back into effe ct. The European  Union would have undertaken lengthy 
dispute settlement proceedings yet still be left with the DPR in place and needing to once again 
pursue dispute settlement to obtain findings with respect to the consistency of a measure it had 
sought co nsultations  on in 2019. The Panel does not believe such a situation would constitute prompt 
settlement of the dispute. The Panel agrees, therefore, with the United  States and the United 
Kingdom that for the European  Union to seek a ruling on the DPR, the D PR does not have to currently  
be creating a limiting effect.  
7.64.   The Panel notes that the DPR was first referred to in Law No.  4/2009 and the European  Union  
requested consultations on this measure in 2019 before the new export bans took effect on 
1 January  2020. Nevertheless, with respect to Indonesia's arguments it is important to recall that 
Members may bring to WTO dispute settlement measures that have not yet been implemented as 
well as those that have expired or are no longer in force.241 Indonesia's argum ent that the DPR 
neither operates as a pre -condition for the exportation of nickel ore nor restricts exports because 
the exportation of nickel ore  is prohibited contradicts these well -understood principles of WTO law. 
Accepting Indonesia's argument would m ean that a Member could avoid a finding of non -compliance 
with respect to one measure by adopting another measure that it freely admits is inconsistent with 
Article  XI:1, to pre -empt the effects of the first measure. Such an approach could thwart the princ iple 
of prompt settlement of disputes between Members set out in Article  3.3 of the DSU.  
 
237 Indonesia's second written submission, paras, 174 -175 and Indonesia's response to Panel question 
No. 45(c) . See als o Indonesia's response to Panel question No.  79 ("The domestic processing requirement 
simply imposes processing obligations on all mining companies in Indonesia, regardless of whether sales are 
being conducted in the domestic or foreign market." ). 
238 Indone sia's response to Panel question No.  66(c). 
239 Indonesia's response to Panel question No.  75(b). 
240 Indonesia's response to Panel question No.  75(b). 
241 If the Panel were to find that the DPR is no longer in force it might be limited in the recommendation 
it could make pursuant to Article  19 of the DSU with respect to compliance, but it would not be precluded from 
making findings as to the consistency of the DPR with Indonesia's WTO obligations . See e.g. P anel Report , 
Chile – Price Band Syste m, paras.  7.112 and 7.124  where the panel refrained from making a recommendation 
to the respondent under Article  19 of the DSU to bring into conformity a measure that was no longer in 
existence but concluded that nothing precluded it from making findings  on such a measure. See also GATT 
Panel  Report , US — Superfund , para.  5.2.2 ; Panel  Report , US — Poultry (China) , para.  7.56; and 
Appellate  Body Report s, EC – Bananas III (Article  21.5 – Ecuador II)  / EC – Bananas III (Article  21.5 – US), 
para. 270. In US — Superfund , the GATT panel found  that Articles III and XI of the GATT 1947 also purport to 
create the predictability needed to plan future trade. The panel  noted that the coming into force of the tax at 
issue at the beginning of the second year following th at of the dispute was a timeframe within which the trade 
and investment decisions that could be influenced by the tax would be taken.  The panel in US — Poultry 
(China)  proceeded to make findings on the WTO consistency of an expired measure while also recog nizing that 
it would not be appropriate to make recommendations with respect such measures . In EC – Bananas III 
(Article  21.5 – Ecuador II) ) / EC – Bananas III (Article  21.5 – US), the Appellate  Body considered that it is 
"within the discretion of the pane l to decide how it  takes into account subsequent modifications or a repe al of 
the measure at issue…  depending on the particularities of the disputes before them ". WT/DS592/R  
BCI deleted, as indicated [[***]]  
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  7.65.   As noted in section 2.1.2 above, the DPR requires the IUP and IUPK permit holders to purify 
(i.e. refine) nickel ore domestically. Indonesia has explained that the Appendix  I to MEMR Regulation 
No. 25/2018 only contains information with respect to purification of nickel ore, rathe r than 
processing, because nickel ore cannot undergo minimal processing and must be purified or 
refined.242 Indonesia also clarified that the products that result after the required purification or 
refining are no longer nickel ore, but would be such produc ts as nickel mate, ferro nickel, nickel pig 
iron, or mix hydroxide precipitate, or mix sulfide precipitate , which fall under different HS codes than 
nickel ore.243 Although the DPR does not explicitly prohibit export of nickel ore in the same manner 
as the regulations that implement the export ban , it creates a situation whereby only refined nickel 
products will be available for export. By its very nature, such a measure limits exports on nickel ore.  
7.66.   The DPR regulates the sale of nickel ore and operates to create a situation where there is no 
nickel ore available for exporters to sell abroad. The only products available for export are 
downstream ones such as ferro nickel, nickel pig iron and nickel matte.244 The Panel concludes, 
therefore, that the DPR is a m easure on the sale for export within the meaning of Article  XI:1 of the 
GATT  1994 and is subject to the obligations therein.  
7.2.1.3   Whether the DPR has a limiting effect on exports  
7.2.1.3.1   Main a rguments of the parties and third parties  
7.67.   As noted above, the European  Union  argues that the DPR is designed and operates so as to 
restrict the possibility to export the unpurified and unprocessed raw mineral products  and, therefore,  
has an inherent direct limiting effect on exports.245  
7.68.   Indonesia  argues that even if the Panel were  to consider that the DPR falls within the scope 
of Article  XI:1 of the GATT  1994, the European  Union  failed to make a prima facie case of 
inconsistency with Article  XI:1 of the GATT  1994 because it did not demonstrate that the DPR has a 
limiting effect on nickel ore trade that is fully attributable to that measure separate and apart from 
the limiting effect of the export ban.246 Indonesia contends that because the export prohibition in 
MEMR Regulation No.  11/2019 totally prohibits exports of nickel ore as of 1 January 2020, there is 
simply no circumstance in which the DPR can currently have any limiting effect on nickel ore 
exports.247 
7.69.   Indonesia argues that the facts demonstrate that even without the export ban, the DPR would 
have no limiting effect on exports of nickel ore.248 Indonesia supports its argument by pointing to 
evidence from when the export ban w as not in place  (first from 12  January  2009 to 12 January 2014 
and second from 11  January  2017 to 31  December  2019).249 According to Indonesia, in the first 
period of suspension of the export ban exports of unprocessed nickel ore increased five -fold from 
10 million  wet metric tonnes in 2009 to 52  millio n tonnes in 2013, and in the second period more 
than six times from 4.9  million  wet metric tonnes in 2017 to 30.2  million  wet metric tonnes in 
2019.250 In Indonesia's view, while trade effects are not required to demonstrate a limiting effect 
they cannot be ignored when they disprove one. According to Indonesia, t he European  Union  is 
effectively ask ing the Panel "to set aside empirical export data in favour of conjecture to conclude 
that a non -discriminatory internal regulation is a prohibited quant itative restriction under 
Article  XI:1".251 
7.70.   Indonesia argues that the DPR cannot directly restrict exports, because it does not govern 
whether nickel ore can be exported. Under Indonesian law, the authorization or prohibition to export 
nickel ore or any oth er raw minerals is implemented through specific legal provisions that are distinct 
 
242 Indonesia's response to Panel question No.  66(a). 
243 Indonesia's response to Panel question Nos. 12 and 66.  
244 Indonesia's response to Panel question No.  66. 
245 European  Union 's first written submission, para.  50. (fns omitted)  
246 Indonesia's first written submission, para.  12. See also Indonesia's first writt en submission, 
paras. 80 and 84 and Indonesia's second written submission, para.  27. 
247 Indonesia's second written submission, para.  52. 
248 Indonesia's response to Panel question No. 13.  
249 Indonesia's second written submission, paras.  52-54; and response to Panel question No. 13.  
250 Indonesia's response to Panel question No. 13 referring to MEMR, Excel of "Production and Sales of 
Nickel Ore from 2010 -2020", (Exhibit IDN -24). 
251 Indonesia's opening statement at the second meeting of the Panel, para. 4.  WT/DS592/R  
BCI deleted , as indicated [[***]]  
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  from, and apply regardless of, any DPR. Indonesia argues that  the legal provisions specifically 
governing the exportation of nickel ore are lex specialis  to the general requ irement to conduct 
minimum processing activities in Indonesia.252 Indonesia points to the export data as confirming 
that Indonesia's legal regime permits exports separately from the DPR.253 The European  Union , for 
its part, argues that "[i] t is immaterial fo r the application of Art.  XI:1 of the GATT 1994 how the 
national law in question calls and categorizes the national measure in question " what matters is 
whether an objective assessment of the matter revealed that the measure prohibited or restricted 
exports.254 The European  Union  compares the relevant provisions in MEMR Regulation No.  25/2018 
(Articles 16, 17, and 46) and concludes that Indonesia 's argument that the DPR  does not regulate 
exports at all cannot be sustained .255   
7.71.   Japan, Korea, the United Kingdom, and the United  States  contend that it is not necessary for 
a complainant to demonstrate that an export restriction or prohibition has actual trade effects.  The 
Panel could find a violation of Article  XI:1 if the DPR were to constitute a  limitation on action or 
exports without the need to show that it has caused an actual decrease in exports.256 Ukraine, for 
its part, argues that a  complainant cannot simply state  its claims ; it should demonstrate what the 
measures do in terms of their effect on trade.257  
7.72.   The United  States  notes that the Panel is not prevented from finding that a measure breaches 
Article  XI:1 simply because there exists another measure that may also prohibit or restrict 
exportation  and submits that Indonesia's export ban does not prevent the Panel from evaluating the 
domestic processing  requirement under Article  XI:1.258 The United Kingdom  notes that , although the 
export ban deprived the DPR of practical effect, it does not appear to have changed the nature of 
the DPR or its nexus with the exportation of the product at issue.259 
7.73.   Canada and the United Kingdom contend that the issue is the nexus between the relevant 
measure and its effect on the quantity of exports of a particular product . In times when exports are 
permitted, they nevertheless cannot take place unless the DPR has been satisfied. This means that 
the act of exportation is dependent on compliance with the DPR.  
7.2.1.3.2   Analysis by the Panel  
7.74.   As noted above260, not all restrictions on ex portation or sale for export would be inconsistent 
with Article  XI:1 of the GATT  1994. Rather , it would only be those that have a limiting effect on the 
quantity of exports. Panels determine consistency with Article  XI:1 based on the design, architecture 
and revealing structure of the measure considered in its relevant context.261 Data on trade flows 
may serve to illustrate or confirm a conclusion on the limiting effect or lack thereof of a particular 
measure262 but is not dispositive of whether a measure is a restriction on export or sale for export 
within the meaning of Article  XI:1 of the GATT  1994. In this context, it is important to recall that a 
measure may be challenged based on its de jure  nature and its past or potential limiting effect, even 
if it is  not currently having an effect.  
7.75.   The DPR by its very nature requires nickel ore to be sold to domestic processors who then 
transform it into something other than nickel ore. This necessarily means that if mines and refineries 
comply with the DPR there wil l be no nickel ore available to be sold for export. The European  Union  
has presented a prima facie  case that the DPR creates a de jure  restriction on the export of nickel 
ore even in times when there is no export ban in effect.  
 
252 Indonesia's opening statement a t the second meeting of the Panel, para.  29; and response to Panel 
questions No.  73; No. 74(c). 
253 Indonesia's comments on European Union's reply to Panel question No. 77.  
254 European  Union 's comments on Indonesia's reply to Panel question No.  74. 
255 European  Union 's comments on Indonesia's reply to Panel question No.  74. 
256 Japan's third -party submission, para.  10; Korea's third -party submission, para.  12; United Kingdom's 
third-party submission, paras.  4-6; United  States ' third -party submission, paras.  12-13.  
257 Ukraine's third -party submission, para. 9. 
258 United  States ' third -party response to Panel question No.  1. 
259 United Kingdom's third -party response to Panel question No.  1. 
260 See para.  7.27 above.  
261 Appellate  Body Report s, Argentina – Import Measures , para.  5.217.  
262 Panel  Report , Indonesia – Import Licen sing Regimes, para.  7.132.  WT/DS592/R  
BCI deleted, as indicated [[***]]  
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  7.76.   In seeking to rebut the Eur opean  Union 's prima facie case, Indonesia  argues that the entirety 
of the limiting effect is attributable to the export ban and not the DPR. In support of its argument 
Indonesia points to export data for periods when Indonesia claims export was permitted, but the 
DPR was nevertheless in effect. Indonesia also argues that the DPR cannot have a limiting effect on 
exports because in Indonesia's legal system it is the MOT, not the MEMR, that can authorize or 
prohibit exportation.  
7.77.    Indonesia provides data that shows increasing exports of nickel ore in the periods when it 
claims the export ban was "lifted" and the DPR remained in force to argue that the DPR has no 
limiting effect on exports separate and apart from the export ban itself. The Panel notes, however, 
that the relaxation of the ban in the relevant periods only related to low -grade ore.263 The prohibition 
on export of high -grade ore remained throughout. The data, therefore, does not demonstrate what 
would happen if the two measures – the export ban and the DPR – were not in place simultaneously.  
7.78.   With respect to the data itself, the Panel notes that it is presented as absolute volumes of 
export data. Limiting effects can be demonstrated not only by a reduction in absolute numbers, but 
also through suppression of increases or reduction in market share.264 The Panel also notes that 
Indon esia itself reports a current imbalance between supply and demand as well as predicting an 
exploding demand for nickel ore.265  
7.79.   The Panel notes that these exports would have been taking place pursuant to separate 
regulatory provisions (MEMR Regulation Nos. 20/2013, then 1/2014, then 25/2018 and MOT 
Regulation No.  1/2017) , which allowed exportation of low -grade ore upon approval by the Minister 
of Trade if certain conditions were met – most notably the building of refining facilities.266 The 
creation of limite d opportunities to export through special application to the Minister of Trade does 
not cancel out the overall design, architecture, revealing structure , and effect of the DPR.  
7.80.   In light of the above, the Panel concludes that Indonesia's export data has not  rebutted the 
prima facie  case that the DPR has a limiting effect by its very nature.  
7.81.   Indonesia also argues that the DPR cannot have a limiting effect on exports because of where 
it is situated within the domestic legal regime of Indonesia. Indonesia expla ins that the DPR was 
issued by the MEMR and only the MOT has the authority to permit or prohibit exports. The Panel 
notes that how a measure is characterized by the respondent within its own legal regime is not 
dispositive on how that measure will be consi dered by a panel or the Appellate  Body.267 The Panel 
also notes that measures can have the effect of restricting exports without taking the form of an 
express export prohibition. Nothing in the WTO agreements states that government measures that 
restrict ex portation are limited to only those that do so explicitly and pursuant to a specific 
governmental authority.  
7.82.   The DPR is set out in Article  103 of Law No.  4/2009 and has been implemented  over time  
through a variety of regulations , most recently MEMR Regula tion No.  25/2018 , which explicitly  
restrict s the ability of holders of IUP/IUPK for Production Operation and IUP for Production Operation 
specifically for the processing and/or purification of metallic Mineral, nonmetallic Mineral, or rocks 
to sell nickel ore abroad.268 Other MEMR regulations state that they permit or prohibit exports or 
provide an exception to an existing prohibition if the exporter gets permission from the minister of 
 
263 The Panel asked Indonesia to provide export dat a for both low -grade and high -grade ore (see Panel 
question No.  17(a)). Indonesia's reply did not make such a distinction.  When asked whether the data 
represented only low -grade ore, Indonesia indicated that not all of the exports were of low -grade ore, bu t also 
noted that "[u] pon the relaxation of the export prohibition, a large amount of low -grade ore was exported. " 
See Indonesia's response to Panel question No.  76. Indonesia also noted in its first written submission that the  
purity of the nickel exporte d by one major Indonesian concern  to China in 2019 averaged [[***]]. See 
Indonesia's first written submission, para.  48. 
264 Appellate  Body Report, US – Large Civil Aircraft (2nd complaint) para.  1006. 
265 Indonesia's second written submission, para.  88. 
266 Indonesia's response to Panel question No.  74(c), referring to MOT, Excel of "Approved Export 
Applications", Exhibit IDN -123 (BCI). [[***]] "Between 2017 -2019, MOT did not reject any export approval 
application, which fulfilled all statutory requirements ". 
267 Appellate  Body Report, US – Large Civil Aircraft (2nd complaint) , para.  593. 
268 Article  19 of MEMR Regulation No.  25/2018  also re fers to  holders of  IUP for Production Operation 
specifically for transportation and sales.  WT/DS592/R  
BCI deleted , as indicated [[***]]  
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  trade and demonstrates that they are building refining facilities.269 The MEMR has issued multiple 
regulations referring to and regulating the sales abroad of nickel ore, the Panel therefore must 
presume it has the competence to do so. The Panel also notes that, in the context of the export ban, 
Indonesia has not argued that ME MR Regulation No.  11/2019 cannot serve as the basis of a claim 
for violation of Article  XI:1 because it was issued by the MEMR and not the MOT.  
7.83.   The Panel finds, therefore, that the fact that DPR is administered by the MEMR and not the 
MOT and is addressed  to mining companies and refineries and not to exporters is not enough to 
conclude that it does not have a limiting effect on exports.  
7.84.    In sum, the European  Union  has demonstrated that the design, architecture, and revealing 
structure of the DPR establish that by its very nature it has a limiting effect on exports. As such, the 
European  Union  has established a prima facie case that the DPR is inconsistent with Article  XI:1 of 
the GATT  1994, which Indonesia has not rebutted.  
7.2.1.4   Conclusion on whether the DPR is a restriction within the meaning of Article  XI:1 
of the GATT  1994  
7.85.   The Panel finds that the text of Article  XI:1 of the GATT  1994 plainly includes measures 
relating to the "sale for export". The Panel finds that the DPR falls  within the scope of Article  XI:1 of 
the GATT  1994 because it is a restriction on the sale for export of nickel ore , which has a limiting 
effect on exports by its very nature. The Panel, therefore, finds that the DPR is subject to the 
obligation in Article  XI:1 of the GATT  1994 and eligible for the exclusion from that obligation 
contained in Article  XI:2(a) of the GATT  1994 if the other elements of that provision are satisfied.  
7.2.2   Whether nickel ore is essential to Indonesia within the meaning of Article  XI:2( a) 
of the GATT  1994  
7.86.   As noted above, to fall within the scope of Article  XI:2(a) and thus not fall within the obligation 
in Article  XI:1 the prohibitions or restrictions must be on foodstuffs or other essential products to 
the responding Member. The Panel w ill, therefore, now move to a determination of whether nickel 
ore is essential to Indonesia.270 
7.2.2.1   Main a rguments of the parties and third parties  
7.87.   Indonesia identifies three main reasons why nickel is essential to it. First, the importance of 
mining for the In donesian economy, accounting for a substantial portion of its GDP. In this regard, 
Indonesia notes that Indonesia is a top nickel producer in the world accounting for 7% of global 
output, and nickel mining contributes significantly to government revenue an d to employment271 
while being of particular economic and strategic significance  in the impoverished regions where it is 
produced,  such as Sulawesi and Maluku .272 Second, Indonesia argues that  nickel is an indispensable 
input for the steel industry which  accounts for 3.94% of total industrial GDP . Indonesia notes that  
the domestic steel industry is not able to meet demand and that nearly half of Indonesia's demand 
for steel is supplied from abroad.273 Third, Indonesia points to  the implementation of a strategic plan 
 
269 MEMR Regulation Nos. 20/2013, 1/2014, and 11/2019. The Panel is not finding that these 
regulations are part of the current iteration of the DPR nor is the Panel  making findings on t heir consistency  
with Indonesia's obligations under the GATT  1994, the Panel is simply noting a factual pattern in Indonesian 
regulations issued by the MEMR and governing nickel ore (among other minerals).  
270 The Panel notes that the panel in China – Raw M aterials , followed a similar order of analysis first 
determining whether the measures were prohibitions or restrictions, then whether they related to an essential 
product, and then moving on to the other elements of Article  XI:2(a). See Panel  Report s, China – Raw 
Materials, section D.1.b.  
271 Indonesia's first written submission, para.  136; Indonesia's second written submission, paras. 109 -
115. 
272 Indonesia's second written submission, para.  100. 
273 Indonesia's first written submission, para.  137 referring to  (Bank Indonesia, "Gross Domestic Product 
by Industrial Origin at Current Prices", Indonesian Economic and Financial Statistics (2021), 226 -227, Exhibit 
IDN-50.) The Panel notes that Indonesia re fers here to the share of industrial  GDP and not total GDP 
represented by the steel industry.  WT/DS592/R  
BCI deleted, as indicated [[***]]  
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  to expand EV battery production in Indonesia in the short term, which results in a need to secure a 
critical input for such production, i.e. nickel.274  
7.88.   In support of its argument, Indonesia notes that the panel in China – Raw Materials  recognized 
refractory -grade bauxite as "essential" to China because it was an input into steel making and the 
relevant importance of that sector to China's economy.275  
7.89.   Indonesia argues that its case t hat nickel is "essential" to Indonesia within the meaning of 
Article  XI:2(a) of the GATT  1994 has not been successfully rebutted by the European  Union .  
7.90.   The European  Union  argues  that merely being the source of primary economic activity in a 
region or a Me mber is not enough to qualify a product as essential within the meaning of 
Article  XI:2(a) of the GATT  1994. The European  Union  contends  that one must interpret the types 
of products covered by the provision b y reference to the express inclusion of "foodst uffs" in 
Article  XI:2(a). In the European  Union 's view, which it argues the Appellate  Body agrees with, "other 
products essential to the contracting party" must be similar in kind to foodstuffs and thus must 
address the essential needs of the population.276 According t o the European  Union , a product that 
has great economic importance in terms of providing employment or government revenue may not 
be "essential" if it does not address a particular vital need of the population.277 In the 
European  Union 's view these types of products would be more or less the same across all Members, 
with some differentiation for local dietary customs or climate differences.278 The European  Union  
argues that accepting Indonesia's interpretation would lead to an overly broad interpretation of 
Article  XI:2(a) of the GATT  1994, which would have the consequence of eviscerating the obligation 
in Article  XI:1 of the GATT  1994. 
7.91.   Canada suggests that the Panel's consideration of whether nickel production is essential 
requires it to ex amine data regarding nickel production capacity in recent years and compare that 
data with data regarding domestic demand over the same period, as well as assessing the 
contribution of nickel ore as a sector of production to the Indonesian economy .279  
7.92.   With respect to whether Article  XI:2(a) of the GATT  1994 is available for the imposition of 
measures to ensure supply for a domestic industry, Korea, refers to a GATT Working Party report in 
which the Working Party confirmed  that the GATT  1994 "does not permit  the imposition of restriction 
upon the export of a raw material in order to protect or promote a domestic industry".280 The United 
Kingdom comments that "access to domestic supplies of input products is not, in and of itself, 
'essential' to the development  of a domestic industry"281 and that one should look at whether 
imported inputs could satisfy the need of the domestic industry without requiring an export restraint. 
Japan and the United  States  accept  the possibility that securing inputs for a domestic ind ustry could 
be allowed under Article  XI:2(a) . Japan, argues that a Member using this line of argument would be 
required to explain why the development of that particular industry is absolutely necessary or 
indispensable to meet the basic needs of the popul ation of that Member, and thus why an input 
product in that particular industry is "essential" to the Member .282 For its part,  the United  States  
argues that a product that is an input product for an industry that a Member wishes to develop "can 
be a supporting factor for the product's 'essentialness' to the Member".283 
7.2.2.2   Analysis by the Panel  
7.93.   The term "essential" is defined as "[a]bsolutely indispensable or necessary".284 Accordingly, 
Article  XI:2(a) refers to critical shortages of foodstuffs or otherwise  absolutely indispensable or 
necessary products. By including, in particular, the word "foodstuffs", Article  XI:2(a) provides a 
 
274 Indonesia's first written submission, para.  138; Indonesia's second written submission, para. 100 . 
275 Indonesia's first written submission, para.  135. 
276 Europea n Union 's second written submission, paras.  129-131; European  Union 's response to Panel 
question No.  29. 
277 European  Union 's second written submission, para.  132. 
278 European  Union 's response to Panel question Nos. 29  and 31.  
279 Canada's third -party response to Panel question No.  4.  
280 Korea's third -party response to Panel question, No.  4. 
281 United Kingdom's third -party response to Panel question No.  4. 
282 Japan's third -party response to Panel question No.  4. 
283 United  States ' third -party response to Panel question No.  4. 
284 Appellate  Body Reports, China – Raw Materials, para. 326. WT/DS592/R  
BCI deleted , as indicated [[***]]  
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  measure of what might be considered a product essential to the contracting party, but it does not 
limit the scope of other essen tial products to only foodstuffs.  
7.94.   This Panel agrees with the panel in China – Raw Materials that "[t]he phrase 'to the exporting' 
Member appears to have been added to the initial draft of Article  XI:2(a) to clarify that 'the 
importance of any product shoul d be judged in relation to the particular country concerned'".285 This 
does not mean that a Member may simply assert that a product is essential to it.286 It does mean, 
however, that the types of products that are essential may vary from Member to Member. A 
determination  whether a product is essential should thus be focused on the particular circumstances 
faced by the responding Member at a time when that Member applies a restriction or prohibition 
under Article  XI:2(a) of the GATT  1994.287 
7.95.   The Panel also agre es with the panel in China – Raw Materials  that the definition of essential 
product within the meaning of Article  XI:2(a) of the GATT  1994 "may include a product that is an 
'input' to an important product or industry" .288 Like the Appellate  Body, the Panel does not exclude 
that a measure falling within the ambit of Article  XI:2(a) could relate to an exhaustible natural 
resource.289  
7.96.   Applying this understanding to the facts of this case, the Panel recalls that Indonesia has 
described low -grade nickel ore as wa ste and over burden and not economically viable. The Panel, 
therefore, concludes that Indonesia has not demonstrated that low -grade nickel ore is currently an 
essential product to Indonesia.  
7.97.   With respect to high -grade ore, Indonesia has based its argument ation on the fact that the 
product is essential to the economies of two regions – Maluku and Sulawesi – and in three industries: 
nickel mining, stainless  steel, and EV batteries.290 Indonesia indicates that i n 2020, nickel mining 
accounted for 27% of the Gross Regional Domestic Product ( GRDP ) in Southeast Sulawesi, 41% of 
the GRDP in Central Sulawesi, and 23% of the GRDP in North Maluku .291 
7.98.   The Panel asked Indonesia to provide information on employment  and revenue  in the three 
areas Indonesia identified that nickel ore was essential to: nickel mining, stainless steel, and EV 
batteries. Indonesia submitted the following data with respect to the nickel mining and stainless 
steel industries292: 
 
285 Panel  Report s, China – Raw Materials , para.  7.275 (quoting UN Economic and Social Council, Second 
Session of the Preparatory Committee of the United Nations Conference on Trade a nd Employment. 
Commission A: Report of Sub -Committee on Articles 25 and 27 E/PC/T/141 (1  August  1947) ). 
286 Panel  Report s, China – Raw Materials , para.  7.345.  
287 Panel  Report s, China – Raw Materials , para.  7.276.  
288 Panel  Report s, China – Raw Materials, para. 7.282.  
289 Appellate  Body Report s, China – Raw Materials , para.  337. 
290 Indonesia's second written submission, para.  100, referring to  Indonesia's response to Panel 
question No.  39(a); B. Devi, D. Prayogo, "Mining and Development in Indonesia: An Overview of the 
Regulatory Framework and Policies", International Mining for Development Centre: Action Research Report, 
(March 2013), (Exhibit IDN -5), p. 11 ; and Nikkei Asia, Automobiles  "Indonesia's electric car dreams at odds 
with deforestation pledge", available at: https://asia.nikkei.com/Business/Automobiles/Indonesia -s-electric -
car-dreams -at-odds-with-deforestation -pledge (last accessed 21  January  2022), (Exhibit IDN -99). 
291 BPS, Exc el of "GRDP of South Sulawesi, Central Sulawesi and North Maluku" (Exhibit IDN -100).  
292 Indonesia's response to Panel question No.  101 (contains BCI) . The Panel notes that Indonesia 
provided the data with respect to nickel mining in percentages whereas it p resented the data on the stainless 
steel industry in decimals. The Panel has adjusted the data on the stainless steel industry so that they are 
comparable with that for nickel mining.  WT/DS592/R  
BCI deleted, as indicated [[***]]  
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  NICKEL MINING INDUSTRY (NICKEL MINING + SMELTER)  
Year  % of 
Indonesia's 
GDP Total # of 
employees  % of total 
employment  % of 
government 
revenue  
2012  [[*** *** *** *** 
2013  *** *** *** *** 
2014  *** *** *** *** 
2015  *** *** *** *** 
2016  *** *** *** *** 
2017  *** *** *** *** 
2018  *** *** *** *** 
2019  *** *** *** *** 
2020  *** *** *** *** 
2021  *** *** *** ***]] 
 
STAINLESS STEEL INDUSTRY  
Year % of 
Indonesia's 
GDP Total # of 
employees  % of total 
employment  % of 
government 
revenue  
2012 [[*** *** *** *** 
2013 *** *** *** *** 
2014 *** *** *** *** 
2015 *** *** *** *** 
2016 *** *** *** *** 
2017 *** *** *** *** 
2018 *** *** *** *** 
2019 *** *** *** *** 
2020 *** *** *** *** 
2021 *** *** *** ***]] 
 
7.99.   The data show s that nickel mining has represented a significant share of Indonesia's GDP 
(above 10%) at a steady level from 2012 -2021. Likewise nickel mining was an important share of 
government revenu e in 2012/2013 and declined thereafter although still remai ning significant. The 
number of employees in nickel mining was small in the years 2012 -2105 and increased significantly 
from 2016 to 2017 and continued to grow thereafter until beginning to decline in 2021. As a share 
of total employment , nickel mining has  represented a substantial share of total employment since 
2017. By contrast, stainless steel represents a minor percentage of Indonesia's GDP and represents 
a very small percentage of total employment and government revenue.  As regards the EV battery 
industry, Indonesia acknowledges that when the measures were adopted, there was no employment 
in the EV battery industry, but there were estimates that building an EV ecosystem would contribute 
significantly to GDP and result in the creation of thousands of di rect jobs, generate state revenue, 
as well as create thousands of additional downstream jobs, and increase Indonesia's trade 
balance .293 
7.100.   The Panel recalls the guidance from the Appellate  Body that the various elements of 
Article  XI:2(a) inform one another, and one element can impart meaning to the other. The Panel will 
discuss further in section 7.2.3 below the element of the temporary application of measures under 
Article XI:2(a) that they must be to bridge a passing need and not to be permanent or maintained 
until a natural resource is completely depleted. As will be discussed further in section  7.2.4  below 
with respect to critical shortage, th e Panel also understand th at the flexibility in Article  XI:2(a) is 
not meant to enable Members to impose restrictions upon the export of a raw material in order to 
protect or promote a d omestic industry .294 Bearing that in mind, it is  the Panel's view  that an 
industrial input product can be essential and within the category of "absolutely indispensable or 
necessary" if it is needed to maintain an industry through a passing need, but not to protect it from 
the vagaries of competition or ordinary market condi tions with respect to access to inputs, or to 
create an industry that did not yet exist . In that sense, the Panel is  of the view that it may be difficult 
to prove that an input product is essential within the meaning of Article  XI:2(a) of the GATT  1994 if 
it is not yet actually being used by a domestic industry in the responding Member.  The implication 
of Indonesia's arguments is that if the panel in China – Raw Materials was correct that bauxite was 
 
293 Indonesia's response to Panel question No.  101, referring to  MEMR, Pre sentation on "The Role of 
Minerals in the Development of Indonesia's Battery Industry" (10  September  2021), (Exhibit IDN -127 (BCI) ). 
294 GATT/CP.4/33, Report of the Working Party "D" on Quantitative Restrictions of 28  March  1950 
republished as "The Use of Quantitative Restrictions for Protective and Commercial Purposes, " Sales No. 
GATT/1950 -3, para.  12. WT/DS592/R  
BCI deleted , as indicated [[***]]  
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  "essential" to an economy as diverse as China's then this Panel must necessarily conclude that nickel 
ore is essential to Indonesia. The Panel , however,  does not see a n exact  parallel between the 
situation of bauxite in China and nickel in Indonesia.  In this respect, the Panel recalls the factors 
that the panel in China – Raw Materials  found relevant when determining that bauxite was an 
essential product to China.  That panel noted that refractory -grade bauxite was used in the production 
of iron, steel, and other important products to China's domestic and export m arkets. That China was 
the leading producer of steel – the downstream product – in the world and that its steel industry 
was a primary consumer of the input product (refractory -grade bauxite) and represented a 
significant source of employment. It was also the case that the downstream products were 
themselves important products in the manufacturing and construction industries, two fundamental 
sectors that drive China's industry and development.295 
7.101.   Nickel mining  is an important source of employment and governm ent revenue for Indonesia, 
particularly if one looks at the regions of Maluku and Sulawesi. The measures, however, are not 
designed to address a critical shortage of nickel ore to the mining industry. Rather, as Indonesia 
explains, the measures address the availability of nickel ore as an input product to downstream 
industries.296 Unlike the situation of bauxite in China, however, nickel ore is not already an input to 
important downstream industries in Indonesia. Indonesia  acknowledges  that as at the time of 
establishment of the Panel,  EV battery production ha d not yet started in Indonesia and was only 
projected to become a source of employment and government revenue in the future .297 Likewise, 
stainless steel  production  is currently a minor part  of Indonesia's economy, representing a low share 
of employment and government revenue over the period 2012 -2020. Moreover, Indonesia has not 
presented evidence on how stainless steel and EV batteries are important products to other 
manufacturing industrie s in Indonesia.  
7.102.   The Panel finds, therefore, that based on the argumentation and evidence Indonesia 
provided , Indonesia  has not satisfied its burden to demonstrate that nickel ore is essential to 
Indonesia within the meaning of Article  XI:2(a).  
7.103.   As the Panel  will discuss further  in paragraph 7.137  below,  the principle of permanent 
sovereignty over natural resources is relevant to an interpretation of GATT obligations. The Panel's  
finding  here does not contradict that understanding.  
7.2.3   Whether the export ban and the DPR are temporarily applied  
7.2.3.1   Main a rguments of the parties and third parties  
7.104.   Indonesia  relies on its application of export prohibitions and restrictions on nickel ore in the 
past for what it calls "only for limited time -periods"298 as proof that the current implementing 
regulations are also only temporarily applied. Specifically, Indonesia r efers to two export prohibitions 
that were implemented through MEMR Regulations No.  7/2012 (which was in force for 15 days)299 
and No.  1/2014 (which Indonesia submits was in force from 11  January  2014 until it was revoked in 
January 2017).300  
7.105.   Similarly, in relation to the DPR, Indonesia argues that these requirements " only operated 
to restrict exports of unprocessed or unrefined nickel for limited time -periods ".301 Further, Indonesia 
submits that to the extent domestic producers were subject to these requirements, they affected 
the internal sale of nickel and, therefore, fell under Article  III:4 of the GATT  1994.302  
7.106.   Indonesia asserts that it has a consistent practice of applying export prohibitions and 
restrictions on nickel ore exclusively on a temporary basis.303 Indonesia also argues that it has 
 
295 Panel  Report s, China – Raw Materials, para. 7.340.  
296 Indonesia's first written submission, paras.  137-138; and second written s ubmission, para.  116.  
297 Indonesia's response to Panel question Nos. 39(c) and 101.  
298 Indonesia's first written submission, para.  94. 
299 Indonesia's first written submission, paras.  95-96. 
300 Indonesia's first written submission, para.  99. 
301 Indonesia's first written submission, para.  103. 
302 Indonesia's first written submission, para.  103. 
303 Indonesia's second written submission, para.  78 referring to  Indonesia's first written submission, 
paras. 94-103. WT/DS592/R  
BCI deleted, as indicated [[***]]  
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  produced contemporaneous evidence that the rationale for the adoption of the export prohibition on 
nickel ore was to secure the immediate supply needs of the domestic processing industry and that 
its app lication is, therefore, to bridge a passing need.304 Finally, Indonesia argues that the 
European  Union  appears to agree that, in the past, export prohibitions on low -grade nickel ore have 
been in place only for a limited time, such that the only remaining d isagreement between the parties 
appears to relate exclusively to grades of nickel ore above 1.7%.305 Indonesia  notes that at the time 
the European  Union  requested consultations in 2019 , MEMR Regulation 2 5/2018 had been in place 
for less than 1 year and 7 mo nths, while the export prohibitions in MEMR Regulation 11/2019 and 
MOT Regulation 96/2019 were not in effect at all. Indonesia notes that while the Panel proceedings 
were ongoing, MEMR Regulation 25/2018 ha d been in effect for 3 years and 8 months, while M EMR 
Regulation 11/2019 and MOT Regulation 96/2019 ha d been in effect for 2 years .306 In Indonesia's 
view, in light of exploration to production timetables for nickel ore, less than four years of application 
is a very short period of time in the mining industry.307 
7.107.   The European  Union  submits  that it is unpersuasive to refer to the way in whi ch export 
prohibitions were applied in the past to argue that a current export prohibition is also only applied 
temporarily.308 The European  Union  also notes that the arguments of historical temporary application 
can only be said to be valid for low -grade o re because the export of high -grade ore has been 
continuously prohibited since January 2014.309 The European  Union  argues that the length of time 
the 2019 regulations  were in force before consultations were requested cannot be  dispositive  
because it implies  that a Member must wait for a prolonged period of time before bringing a claim 
and therefore accept the nullification or impairment of its benefits under the WTO agreements.310 
7.108.   Brazil and Japan query whether the motivation behind the adoption of the measur e – which 
seems to be , in their view,  the depletion of nickel ore reserves – can be considered a passing need.311 
The United  States  comments that as Indonesia considers its processing capacity will continue to 
expand, which will result in increased demand , it is unclear and unlikely that the   export restriction 
would be applied for a limited time.312 The United Kingdom references the Appellate  Body finding  in 
China – Raw Materials  that an export restriction applied to an exhaustible resource that is intended 
to be maintained until the remaining reserves have been depleted, or until new technology or 
conditions lessen the demand for that product, cannot be said to be "temporarily applied ".313  
7.109.   Canada is of the view that  even though Indonesia's export prohibition has not been 
consistently applied, the Panel should consider whether  the ban i s more in the nature of a long -term 
conservation measure that is applied to an exhaustible mineral resource and whether it is possible 
that the expected shortage would  ever cease to exist. Canada submits that "a restriction that is 
imposed almost all the time until reserves are depleted would not meet the 'temporarily applied' 
requirement".314 Further, Canada submits that the Panel should also consider whether there are 
indications that the ban would be effectively applied permanently, or whether it will be lifted, at a 
time when the critical shortage has been resolved.315 Korea considers that a measure may fall short 
of being temporary if o ne cannot reasonably anticipate that the measure would be lifted in due time 
or under certain non -temporary conditions.316  
7.110.   Japan, Korea, the United  States , and the United Kingdom  all express concern that a series 
of measures with some breaks in application  or a single measure that is frequently paused and 
reinitiated, may indicate that the measure is in fact intended to be permanent, subject to periodic 
 
304 Indonesia's second written submission, paras.  75-76 referring to Press Release from the MEMR, 
2 September  2019 (Exhibit IDN -92), p.2.  
305 Indonesia's second written submission, para.  79. 
306 Indonesia's second written submission, para.  81. 
307 Indon esia's second written submission, para.  82. 
308 European  Union 's second written submission, para.  149. 
309 European  Union 's second written submission, para.  151. 
310 European  Union 's second written submission, para.  156. 
311 Brazil's third -party submission, para.  16; and Japan's third -party submission, paras.  25-26. 
312 United  States ' third -party submission, para.  22 and United  States' third -party response to Panel 
question No.  2. 
313 United Kingdom's third -party submission, para.  12 (referring to Appellate  Body Report s, China – Raw 
Materials , para.  340). 
314 Canada's third -party statement, para.11, and third -party response to Panel question No.  2. 
315 Canada's third -party response to Pane l question No.  5. 
316 Korea's third -party response to Panel question No.  2; United  States ' third -party response to Panel 
question No.  5. WT/DS592/R  
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  exceptions . Considering such a measure(s) to be temporarily applied within the meaning of 
Article  XI:2(a)  could create the possibility for Members to circumvent that narrow exception thereby 
rendering the substantive obligation meaningless.317  
7.2.3.2   Analysis by the Panel  
7.111.   Indonesia does not cite any text in the current regulations that indicates explicitly that they  
are meant to be temporary or if there is a specific timeframe in which it is envisaged that they will 
be lifted or triggering criteria for lifting them.  
7.112.   The Appellate  Body has noted that the setting forth of a specific timeframe in advance  is not 
require d for a measure to be considered "temporarily applied" within the meaning of Article  XI:2(a). 
At the same time, the Appellate  Body agreed with the panel in China – Raw Materials that a measure 
"applied 'temporarily' in the sense of Article  XI:2(a) is a measure applied in the interim, to provide 
relief in extraordinary conditions to bridge a passing need. It must be finite, that is, applied  for a 
limited time " and not indefinitely.318  
7.113.   With respect to Indonesia's arguments about the limited time  periods in which the measures 
were in force, the Panel presents the table below to reflect its understanding of the application of 
the two measures – export ban and DPR – over time.  
Figure 5: Timeline of application of the export b an 
 
 
 
317 Japan's third -party response to Panel question No.  2; Korea's third -party response to Panel question 
No. 5; United  States ' third-party response to Panel question No.  5, and United Kingdom's third -party response 
to Panel question No.  2. 
318 Appellate  Body Report s, China – Raw Materials , para.  330. 
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  Figure 6: Timeline of application of the DPR  
 
 
7.114.   Although the length of time a series of similar measures has been imposed could indicate a 
pattern of short -term measures it could also indicate a long -term measure that was sim ply being 
updated by different legal instruments. The Panel notes in this regard that there were no breaks in 
the application of the DPR and any breaks in the application of the export ban were limited to low -
grade ore.  
7.115.   Indonesia  argues that because an in itial ban in 2012 only lasted 15 days and the 2019 
regulations had only been in place for two weeks when the European  Union  requested consultations 
that the ban on high -grade ore also has a history of only being applied temporarily.319 Indonesia 
overlooks t he fact that export of high -grade ore has remained prohibited continuously since 
1 January 2014 and that Indonesia itself has averred to this when asserting that the export ban has 
a limiting effect.320 The Panel notes that at the time of panel establishment export of high -grade 
nickel ore had been continuously prohibited for seven  years and the DPR had been in place for nine 
years.321 
7.116.   The Panel, therefore, does not find the history of various  sequential  measures governing 
nickel ore to support Indonesia's argument that the export ban and DPR are temporarily applied.  
7.117.   The Panel next looks to whether there is any indication when Indonesia might lift the 
measures, such as criteria for lifting the measures eit her in the regulations themselves or in 
contemporaneous government documents.  
7.118.   Indonesia cites a press release announcing the 2019 regulations that removed the 
permission to export low -grade nickel ore and returned Indonesia to a state of a total export ba n. 
In that press release while there are indications of the length of proven reserves (7.3 years) and the 
hope that reserves could fulfil demand for  42.67 years there is no indication that the measure is 
meant to be lifted before the depletion of reserves.322 There is a reference in the press release to 
the technology development of low -grade nickel ore so that existing reserves can be processed 
 
319 Indonesia's response to Panel question No.  25(b). 
320 See Indonesia's response to Panel question No.  13. 
321 The Panel notes in this regard that Indonesia repeatedly compared its situation to that of China in 
China – Raw Materials  where China's export ban on bauxite, which the panel found was inconsistent with  
Article  XI:1 of the GATT  1994, had been in place uninterrupted for nearly 11 years. The Panel does not believe 
that the panel in China – Raw Materials  made any type of declaration that such a length of t ime of continued 
application was necessary for a measure not to be considered temporarily applied within the meaning of 
Article  XI:2(a) of the GATT  1994. That simply happened to be the factual situation that panel was presented 
with. 
322 Press Release from t he MEMR, 2  September  2019 (Exhibit IDN -92).  
WT/DS592/R  
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  domestically with no need to export. But there is no indication of when that technology will be 
available.323  
7.119.   Indonesia has told the Panel that it cannot currently process low -grade ore. It has also told 
the Panel that Indonesia expects to nearly double its refining capacity in the next five years. It 
intends, however, to mostly rely on the existing predominant method  of refining – pyrometallurgical 
– with less than 20% of smelters expected to use HPAL technology.324 It is not evident, therefore, 
that these technological developments are expected to be available sufficiently soon to consider that 
the measures bridge a p assing need.  
7.120.   Indonesia argues that it does not intend to maintain the measures until the reserves of nickel 
ore are depleted, but rather constantly reassesses the measures as well as the level of reserves.325 
Indonesia is in the process of increasing domes tic refining capacity as well as the downstream 
industries that would use nickel products. Indonesia tells the Panel that increasing domestic 
processing capacity is not equivalent to a perennial state of critical shortage that would require the 
permanent i mposition of the measures.326 At the same time Indonesia states that the measures will 
remain in place until "economically useful nickel reserves are sufficient to meet demand of the 
domestic processing industry, estimated at 292.4 million wmt by 2026" .327 
7.121.    The Panel finds that the measures had been in place, albeit with short breaks that allowed 
the exportation of low -grade ore328, for seven (export ban) and nine (DPR) years when the Panel 
was established and remain in place to date. Indonesia has presented n o direct, contemporaneous 
evidence in the measures themselves or the circumstances around their adoption to indicate a 
timeframe or even specific achievable criteria for when the measures would be lifted.  
7.122.   The Panel does not find that Indonesia intends to keep the measures in place until all 
reserves are depleted. Indonesia itself informed the Panel that it intends to keep the measures in 
place until supply meets demand or new technology allows.329 Given the projected rates of increasing 
demand Indonesia has placed on the record as well the limited potential HPAL capacity in the near 
future, the Panel finds that the measures would be expected to last an indefinite  period .330 The Panel 
notes that the panel in China – Raw Materials  reached a similar conclusion when it found that China's 
export restraints on bauxite were not temporarily applied despite China's argument that they would 
be maintained "until new technology or conditions lessen demand" .331 
7.123.   In light of the above, the Panel finds that neither the export ban nor the DPR are temporarily 
applied within the meaning of Article  XI:2(a) of the GATT  1994. 
7.2.4   Whether the export ban and the DPR applied to prevent a critical shortage of nickel 
ore in Indonesia  
7.124.   Article  XI:2(a) allows Members to apply prohibitions or restrictions temporarily to either 
prevent or relieve critical shortages. The Appellate  Body has concluded that Article  XI:2(a) provides 
a basis for measures "adopted to alleviate or reduce an existing critic al shortage, as well as for 
preventive or anticipatory measures adopted to pre -empt an imminent critical shortage" .332 As the 
 
323 Press Release from the MEMR, 2 September 2019  (Exhibit IDN -92). The press release also states 
that the policy is "merely to increase value added for nickel to process minerals all over Indonesia" . 
324 Indonesia' s response to Panel question No.  9(c). See also, Maryono Report (Exhibit IDN -18 (BCI)), 
p. 30.  
325 Indonesia's response to Panel question No.  26. 
326 Indonesia's opening statement at the first meeting of the Panel, para.  53. 
327 Indonesia's response to Panel question No.  26.  
328 As will be discussed further below in section 7.2.4.2.2 , Indonesia has not provided any evidence on 
the reserve levels of low -grade ore.  
329 Indonesia's second written submission, para.  77 ("… The MEMR press release also buttresses the 
temporary nature of such measures by evidencing MEMR's in tent to remove the measures once technological 
developments enable the expansion of proven reserves and the processing of lower grades of nickel, thus 
alleviating the supply deficiency that justifies the measures." ). See also Indonesia's response to Panel question 
No. 25(a). 
330 Indonesia argues that demand for nickel is expected to grow 20 -25 times by 2040. See IEA, Special 
Report on the Role of Critical Minerals in Clean Energy Transition (2021) , (Exhibit IDN -16), p. 8.  
331 See e.g. Panel  Report s, China – Raw Materials, paras.  7.348 and 7.350.  
332 Appellate  Body Report s, China – Raw Materials , para.  326. WT/DS592/R  
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  Appellate  Body stated, "i nherent in the notion of criticality is the expectation of reaching a  point in 
time at which conditions ar e no longer 'critical ', such that measures will no longer fulfil the 
requirement of addressing a critical shortage" .333 
7.2.4.1   Main a rguments of the parties and third parties  
7.125.   Indonesia explains that the increase in demand for nickel ore has resulted in higher (and  
unsustainable) levels of extraction and production in Indonesia. It is Indonesia's view that failure to 
act preventively would have resulted in an imminent crucial deficiency of nickel ore. Indonesia argues 
that the temporary restrictions it imposed betwe en 2014 and 2017 were successful because 
production diminished to sustainable levels. It further states that the current demand for nickel ore 
in Indonesia and the corresponding extraction and production levels may indicate that " a crucial 
deficiency in qu antities of  HGSO  is likely to ensue if export restrictions on nickel ore were no longer 
in place ".334 
7.126.   Indonesia argues that the measures are applied to prevent critical shortages of nickel ore in 
its territory. Indonesia submits that "[f]aced with a surge i n nickel ore production and consumption 
and anticipating even greater demand for its nickel in the short term as a critical input into EV 
batteries, Indonesia acted preventively  to mitigate the risk that its nickel reserves would be depleted 
at unsustainab le rates"335 by adopting temporary export restrictions.  
7.127.   Indonesia presents three main types of evidence in support of its argument that there is a 
risk of a critical shortage of nickel ore that it needs to prevent. Indonesia focuses on estimates of its 
nickel reserves, ore production, and projections for consumption that it argues demonstrate the risk 
of crucial deficiencies.  
7.128.   Based on a variety of methodologies, including reporting from mining permit holders, 
Indonesia provided the following estimate of the  evolution of its reserves from 2012 -2020:  
Table  4: Evolution of Indonesia's nickel ore reserves  
 2012  2013  2014  2015  2016  2017  2018  2019  2020  
Probable  
Reserves 
of 
Nickel 
metal  
(tons) 19,154,662  18,916,367  18,915,262  46,931,459  44,287,596  39,786,145  39,700,090  54,273,601  48,444,790  
Prove d 
Reserves 
of 
Nickel 
metal  
(tons) 2,548,956  2,631,146  2,463,051  3,940,845  4,277,095  22,563,738  37,021,667  17,716,023  20,949,290  
Source: MEMR, Excel of "Nickel Data 2012 -2020", (Exhibit IDN -48). 
 
7.129.   As discussed in paragraph 2.41 above, Indonesia argues that only "prove d", rather than 
"probabl e" reserves can be considered when estimating Indonesia's nickel ore reserves for the 
purpose of determining whether there is a n imminent critical shortage. Moreover, Indonesia argues 
that only the proportion of its "prove d" reserves  that can be mined economically can be considered 
"reserves" .336 Relying on this definition Indonesia posits that its actual reserves are lower than 
estimates from various sources such as the USGS and the MEMR, because only HGSO is economically 
viable given the methodology used in Indonesian smelters. Indonesia notes t hat "[a]verage costs of 
production for Indonesian smelters render it uneconomic to process nickel ores at lower grades, 
including low -grade saprolite ores and all types of limonite ores. For this reason, while HGSO is used 
as an input for further processin g downstream, low -grade nickel ore stockpiles below 1.7% purity 
are considered waste and over burden, or inventory that might have economic value in the future.337  
 
333 Appellate  Body Reports, China – Raw Materials, para. 328. 
334 Indonesia's first written submission, paras.  130-131. 
335 Indonesia's first written submission, para.  107. (emphasis added)  
336 Indonesia's first written submission, para.  118 ( referring to  CRIRSCO, Standard Definitions, 
October  2012, (Exhibit IDN -42)). 
337 Indonesia's first written submission, para.  118. WT/DS592/R  
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  7.130.   According to Indonesia, evidence on the record shows that the current level of reserves of 
HGSO have "a total lifespan of merely 6 years at current production and consumption levels"338, 
even without considering the future surge in demand resulting from EV battery production. Indonesia 
considers that "[t]he potential removal of the measures at iss ue would exacerbate the critical 
shortage of Indonesia's nickel ore even further by adding foreign demand for HGSO, particularly 
from China, to current domestic demand for HGSO in Indonesia."339 
7.131.   With respect to nickel production, Indonesia provides several data points referring to 
production, number of processing facilities, domestic consumption, and domestic  processing 
capacity. Again, Indonesia's argument focuses primarily on nickel ore being consumed domestically 
for stainless steel production.340 Indeed, its forecasts for nickel ore consumption based on historical 
data are "according to nickel input processing capacity".341 
7.132.   The European  Union  seeks to rebut Indonesia's contention that the measures are designed 
to prevent a critical shortage by arguing that they are designed to promote Indonesia's domestic 
downstream processing industries.342 The European  Union  also provides a detailed challenge to 
Indonesia's data used to support its argument that a critical shortage is imminent.343 In particular, 
the European  Union  maintains that the alleged risk of shortage is too remote344, not temporary345, 
self-created by Indonesia through the application of the measures346, and that the alleged deficiency 
in quantity is neither likely nor serious.347 
7.133.   Canada submits that if In donesia's measures were designed to prevent long -term depletion 
of nickel reserves, and therefore was not responding to a "critical shortage" then the Article  XI:2(a) 
requirement would likely not be met.348 Korea, likewise argues that as nickel ore is not a  regenerating 
resource that can recover over time it would seem that only "a measure with perpetual effect, instead 
of a 'temporary measure ', would be apt to relieve the ongoing shortage".349 Japan and the United 
Kingdom consider that where the depletion of  ore reserves is caused or exacerbated by continued 
mining it will be difficult to demonstrate that this is a critical shortage within the meaning of the 
provision.350 Japan  also notes that if a shortage is permanent, the n a measure could not be applied 
to prevent a critical shortage.351  
7.2.4.2   Analysis by the Panel  
7.134.   The Panel is presented with several questions in determining whether Indonesia's measures 
satisfy this element of Article  XI:2(a) of the GATT  1994. The first is an inter pretative question with 
respect to what types of situations may be considered a critical shortage within the meaning of 
Article  XI:2(a) that is eligible to be prevented or relieved. In particular, the parties differ on whether 
such measures can be taken to  address the normal depletion of natural resources and also whether 
they can be used to satisfy expanding domestic demand related to the development of downstream 
processing industries for the input product. The second question relates to a factual determi nation 
on the level of reserves of nickel ore in Indonesia. The Panel must then apply the law to the facts 
and determine whether there is an imminent critical shortage in nickel ore in Indonesia that could 
be prevented.  
 
338 Indonesi a's first written submission, para.  131. 
339 Indonesia's first written submission, para.  131. 
340 Indonesia's first written submission, paras.  124-127. 
341 Indonesia's first written submission, para.  126, Table  3 (referring to  the Maryono  Report , 
(Exhibit  IDN-18 (BCI) ), p. 19 ). 
342 European  Union 's second written submission, para s. 26-62. 
343 European  Union 's second written submission, para s. 73-127. 
344 European  Union 's second written submission, paras.  73-80. 
345 European  Union 's second written submission, paras.  81-87. 
346 European  Union 's second written submission, paras.  88-90. 
347 European  Union 's second written submission, paras.  91-127. 
348 Canada's third -party response to Panel question No.  3. 
349 Korea's third -party statement, para.  7. 
350 Japan's third-party response to Panel question No.  3; and United Kingdom's third -party response to 
Panel question No.  3. 
351 Japan's third -party submission, para.  29. WT/DS592/R  
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  7.2.4.2.1   Critical shortage within the meanin g of Article  XI:2(a) of the GATT  1994  
7.135.   The term "critical shortage" was first interpreted by the Appellate  Body in the China – Raw 
Materials dispute. In that case, the Appellate  Body looked to the dictionary definitions of shortage 
and critical as well as t he context supplied by other provisions of the GATT  1994 that refer to 
shortages – notably the reference to "short supply" in Article  XX(j) – to determine that a "critical 
shortage" within the meaning of Article  XI:2(a) refers to "those deficiencies in qua ntity that are 
crucial, that amount to a situation of decisive importance, or that reach a vitally important or decisive 
stage, or a turning point" , which is more narrowly circumscribed than the type of shortage that 
would fall within the scope of Article  XX(j).352 Addressing a mere shortage or a situation of short 
supply will not be enough to bring a measure within the scope of Article  XI:2(a), the shortage must 
be critical.  
7.136.   Similarly, Article  XI:2(a) and Article  XX(i) must address separate circumstances. Essential 
quantities of materials necessary to a domestic industry must mean something different than a 
critical shortage of an essential product.353  A need to secure essential quantities for the domestic 
industry cannot be considered equiva lent to a critical shortage. As noted above, a critical shortage 
has to be of decisive importance and capable of reaching a turning point. The Panel  is of the view, 
therefore, that securing enough of a particular input to meet potential increases in demand  brought 
about by normal market forces that are expected to continue for some time is not responding to a 
critical shortage.   
7.137.   The Panel understands that the GATT  1994 must be interpreted  in a manner consistent with 
general principles of customary internati onal law, including the principle of permanent sovereignty 
over natural resources.354 The Panel agrees with the panel in China – Raw Materials that the ability 
to enter into international agreements such as the WTO  Agreement  is a quintessential example of 
the exercise of sovereignty. The Panel also notes that the principle of harmonious interpretation 
requires that Members must exercise their sovereignty over natural resources consistently with their 
WTO obligations.355 At the same time, the flexibilities built in the GATT  1994 and the other covered 
agreements must be interpreted in a way that respects this principle as well as the goals of the 
Preamble of the WTO  Agreement  with respect to sustainable development. For this reason, li ke the 
Appellate  Body, the Panel does not exclude  the possibility  that a measure falling within the ambit of 
Article  XI:2(a) of the GATT  1994 could relate to an exhaustible natural resource. Nevertheless , 
Indonesia would still have to demonstrate that all of the component elements of Article  XI:2(a) are 
satisfied.  
7.138.   With respect to the availability of Article  XI:2(a) measures to address critical shortages of 
exhaustible natural resources, the Appellate  Body has explained that they could be imposed, "for 
examp le, if a natural disaster caused a 'critical shortage' of an exhaustible natural resource, which, 
at the same time, constituted a foodstuff or other essential product" .356 The Panel does not read the 
Appellate  Body's statement as limiting the types of criti cal shortages of exhaustible natural resources 
to natural disasters. The Panel does not find support in the Appellate  Body's statement, however, 
for the notion that the concept of a critical shortage of an exhaustible natural resource can simply 
be that un der ordinary market conditions supply cannot currently meet demand or that it is projected 
to be unable to meet demand in the future.    
 
352 Appellate  Body Report s, China – Raw Materials, paras.  324-325. 
353 That difference is reflected in the criteria for the application of Article  XX(i), which  require Members 
to hold the domestic price of such materials below the world price as part of a governmental stabilization plan 
and that any restrictions applied shall not operate to increase the exports of or the protection afforded to such 
domestic industry and shall not depart from the provisions of this agreement relating to non -discrimination.  
The Panel notes that there is evidence on the record that in conjunction with the export ban and DPR,  
Indonesia applies a reference price to nickel ore, which is held below the world market price to " create a 
balance or fair pricing between profits for the smelters while at the same time ensuring the nickel mining 
activities can provide sufficient margin for the miners ". See Ministry of Energy and Mineral resources, 
Government of Indonesia, Press Release No 253.Pers./04/SJI/2020 "Pushing Domestic Nickel Market Growth, 
Government Sets Reference Prices of Minerals (RPM) Regulations ", (Exhibit EU –28). 
354 Article 3.2 of the DSU. See also Panel  Report s, China – Raw Materials , paras.  7.377 –7.383.  
355 Panel  Report s, China – Raw Materials , paras.  7.381 -7.382.  
356 Appellate  Body Report s, China – Raw Materials , para.  337. WT/DS592/R  
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  7.139.   In sum, the Panel is of the view that , Article  XI:2(a) can be utilized by Members to address 
a critical shortage of ind ustrial inputs , including exhaustible natural resources, but the  shortage has 
to be critical and capable of being resolved.357  
7.2.4.2.2   The level of nickel ore reserves in Indonesia  
7.140.   To demonstrate that there is an imminent critical shortage of nickel ore, Indonesia  must 
provide evidence to the Panel on the level of reserves. In that respect, Indonesia provides an expert 
report – the Maryono Report – as well as other relevant data on the level of Indonesia's nickel 
reserves . The European  Union  raises t wo major issues  with respect to the reserve calculations put 
forward by Indonesia. Specifically, the European  Union  takes issue with the fact that Indonesia 
excludes low-grade ore from the calculation of reserves and th at Indonesia also  excluded any data  
on nickel reserves  not verified by a "competent person".358  
7.141.   With respect to the low -grade ore, Indonesia acknowledges that  it has excluded low -grade 
ore from its calculations. Indonesia relies on an industry standard definition of reserves to include 
only economical ly viable product. In Indonesia's view low -grade ore is properly excluded from 
reserve calculations because its smelters cannot currently process it and, therefore, this ore is not 
economically viable.359 
7.142.   Indonesia's  regulations (particularly the two from 2 017) specifically require the use of low -
grade ore in domestic facilities (and the construction of such facilities) before the product can be 
exported.360 Indonesia has acknowledged to the Panel that some of its facilities use low -grade ore 
for "blending".361 Moreover, Indonesia does not take into account that the miners may economically 
exploit this low -grade ore by selling it to foreign purchasers.362 This appears inconsistent with 
Indonesia's arguments on why nickel ore is essential  to Indonesia, which high light the importance 
of the nickel ore industry in certain Indonesian regions such as Sulawesi and Maluku.363 
7.143.   With respect to high -grade ore there are several estimates on the record. The estimates 
from the Maryono Report, dated September 2021, indicate bet ween [[ ***-***]] years of remaining 
reserves.364 This calculation is based on the proven reserves calculated with respect to high -grade 
ore reported by competent persons365 as well as recent production data and capacity of existing 
smelters. At the same time , Indonesia's Mining Guidance which is provided to potential investors to 
encourage them to build refining facilities and downstream manufacturing facilities (stainless  steel 
and EV battery) in Indonesia indicates that "the mineral mining production is ver y high and the 
reserves availability is still abundant for a long term" .366  
7.144.   Indonesia also notes that reserves may be calculated upwards if new HPAL refineries that 
can refine low -grade  nickel ore  come online.367 Indonesia notes that the first of these plants is 
intended to start production in 2026 with more soon to follow.368 This potential upward trend is also 
addressed in  Indonesia's Mining Guidance which indicates that the proven reserves security of 
nickel  – hydrometallurgy from 2020 should last until 2030, or 2029 in case of nickel – pyrometallurgy 
 
357 Hence the requirement that measures under Artic le XI:2(a) of the GATT  1994 be temporarily applied.  
358 European  Union 's second written submission, paras.  95 – 104. 
359 Indonesia's response to Panel question No.  27(b). 
360 See e.g.  MOT Regulation No.  1/2017, (Exhibit EU -8(b)), Article  4. 
361 Indonesia's response to Panel question No.  76(b). 
362 Indonesia's response to Panel question No.  9(a). 
363 Indonesia's second  written submission, paras. 100, 109, and 112. See also, Indonesia's response to 
Panel question No.  97 ("Between 2017 and 2019, Indone sia has decided to permit the exportation of lower 
grades of nickel ore. At the time, Indonesia attempted to respond to pleas by mining companies that they 
would not remain economically viable if deprived of the opportunity to export nickel ore, while at t he same 
time ensuring the continuity of supply of higher grades of nickel ore for Indonesia's expanding processing 
capacity. ")  
364 The Maryono Report, (Exhibit IDN -18 (BCI)), p. 31.  
365 The European  Union  objects to the exclusion of potential reserve data that were not reported by a 
competent person – indicating that leaving out this information depresses the overall calculation of reserves. 
The Panel notes that reliance on competent persons is industry st andard (See Exhibits IDN -37, IDN -42, and 
IDN-45) and that the total volume of remaining nickel ore estimated in the Maryono Report is larger than those 
estimated generated using alternate methodologies that did not require a competent person.  
366 MEMR, Indon esian Mining Guidance (2020), (Exhibit IDN -1), p. 142.  
367 Indonesia's response to Panel question No.  9(b). 
368 Indonesia's response to Panel question No.  100(a). WT/DS592/R  
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  commodity. According to the Mining Guidance, t hese time periods are significantly longer when  the 
reference is to  total reserves instead of proven reserves: the tot al nickel reserves security would 
cover until 2052 for nickel – pyrometallurgy and 2091 for nickel – hydrometallurgy.369 It should be 
recalled that Indonesia currently only has smelters that refine through pyrometallurgical processes 
but expects to bring hydrometallurgical (HPAL) smelters on-line in the coming years. The Mining 
Guidance recogni zes that adding the use of HPA L facilities would extend the life of reserves as would 
including probable rather than proven reserves in the estimates.  
7.2.4.2.3   Whether there is an imminent critical shortage of nickel ore in Indonesia  
7.145.   In analysing this question, the Panel will apply its underst anding of the type of situation that 
qualifies as a critical shortage for the purposes of Article  XI:2(a) of the GATT  1994 to the factual 
situation in Indonesia. In this respect,  the Panel recalls that Indonesia has made a distinction in its 
calculation of  reserves between low -grade ore (with a nickel content of <1.7%) and high -grade ore 
(with a nickel content of >1.7%).  
7.146.   The Panel notes that, despite Indonesia's position regarding the value of low -grade ore, the 
measures also apply to low -grade ore.  Indone sia has periodically lifted the export ban on low -grade 
ore. With respect to the DPR the Panel notes that it applies to both low -grade and high -grade ore. 
Permission to export unrefined ore only applies to low -grade ore and is specifically conditioned upon  
a commitment to domestic refining.370  
7.147.   Without any data on the level of reserves of low -grade ore in Indonesia, the Panel does not 
see how Indonesia can demonstrate that its measures are temporarily applied to prevent a critical 
shortage of that very produ ct. Indonesia itself acknowledges that the export ban on low -grade nickel 
ore is not related to preventing a critical shortage of that product, but rather to prevent 
environmental degradation such as deforestation, land disturbance, and water contamination  
typically associated with export -oriented shallow strip mines .371 Indonesia  also argues that the ban 
on low -grade ore is necessary to prevent exporters from using the ability to export low -grade ore to 
present fraudulent customs declarations and actually export high -grade ore and that the surge in 
exports of nickel ore between 2017 and 2019 had the effect of reducing Indonesia's economic 
reserves of higher grades of nickel ore, even though exports of high -grade ore were not legally 
permitted.372 Yet at the same time Indonesia has repeatedly noted that in 2018 the amount of 
reserves was revised upward significantly.373 In any event , this does not demonstrate that the 
measure was applied to prevent a critical shortage of low-grade  nickel ore.  
7.148.   Indonesia  also refers to the potential uses of low -grade ore once HPAL capacity becomes 
operational but cannot point to any imminent shortage of low -grade ore at the time the measures 
were adopted.  
7.149.   With respect to high -grade ore,  the Panel first notes that , as dis cussed above , a critical 
shortage within the meaning of Article  XI:2(a) cannot simply be a situation of short supply. It cannot 
also merely be a situation of needing to secure essential quantities for a domestic industry to meet 
demand. A critical shortage  must be of decisive importance or at a turning point and capable of 
being resolved.  
7.150.   The data provided by Indonesia refer to projections for demand in areas of production that 
are currently not yet fully developed in Indonesia.374 Indonesia's estimates on the ability of HPAL 
technology to enable broader use of low -grade ore and thus obviate the need for an export restraint 
 
369 MEMR, Indonesian Mining Guidance (2020) , (Exhibit IDN -1), p. 142, Table  9.3. 
370 MEMR Regulation No. 25/2018, Article  46 (Exhibit EU -9(b)). See MEMR Regulation No.  5/2017, 
Article  10 (Exhibit IDN -33), MOT Regulation No.  1/2017, Article  4 (Exhibit EU -8(b)) and MEMR Regulation 
No. 11/2012, Article  21A (Exhibit EU -5(b)) for prior formulations of this req uirement . 
371 Indonesia's response to Panel question No.  27(c). 
372 Indonesia's response to Panel question No.  97. This reasoning sounds closer to that Indonesia used 
under Article  XX(d) of the GATT  1994 than demonstrating that there is a critical shortage of low -grade nickel 
ore within the meaning of Article  XI:2(a) of the GATT  1994. 
373 See e.g., Indonesia's response to Panel question No.  33 ("Indonesia's nickel reserves have been 
revised more than five -fold in 2018 as a result of improvements in reporting compliance by nickel permit 
holders. ") 
374 Indonesia's response to Panel question No.  101. WT/DS592/R  
BCI deleted , as indicated [[***]]  
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  have also been continuously revised to be further in the future (from [[ ***]] to now [[ ***]]).375 
With respect to EV battery production, Indonesia has acknowledged  that there are currently no EV 
battery production plants in operation in Indonesia and that the first plants would not be expected 
to be operational until 2024.376 This would be five years after the adoption of the most recent 
regulation implementing the export ban in 2019 , 10 years from the imposition of the export ban on 
high-grade nickel ore in 2014,  and 12 years from the imposition of the DPR in 2012.377 Indonesia 
has also indicated that employment in the stainless  steel industr y currently only accounts for a small 
percentage [[***]] of its total workforce.378 
7.151.   The Panel finds that this prospective future demand is too attenuated to be reasonably relied 
upon as evidence of an imminent critical shortage that can be prevented through the measures at 
issue.   
7.152.   In light of the above, the Panel finds that Indonesia has not demonstrated the existence of 
an imminent critical shortage of nickel ore, either low -grade or high -grade, within the meaning of 
Article  XI:2(a) of the GATT  1994. 
7.2.5   Overall conclusion on Article  XI:2(a) of the GATT  1994  
7.153.   It should be recalled that the analysis under Article  XI:2(a)  of the GATT  1994 is cumulative. 
All the elements must be demonstrated for a respondent to be able to avail itself of the exempti on 
from the obligation in Article  XI:1 of the GATT  1994. In this case the Panel has found that:  
a. The export ban is a prohibition and the DPR is a restriction within the meaning of 
Article  XI:1 of the GATT  1994. Both measures, therefore, are eligible for exe mption from 
the application of Article  XI:1 contained in Article  XI:2(a) of the GATT  1994; 
b. Indonesia has not demonstrated that nickel ore is an essential product within the meaning 
of Article  XI:2(a) of the GATT  1994; 
c. Neither the export ban nor the DPR are  temporarily applied within the meaning of 
Article  XI:2(a) of the GATT  1994; and  
d. Indonesia has not satisfied the burden of proof to demonstrate that there is an imminent 
critical shortage of nickel ore (either low -grade or high -grade) that the measures can  
prevent.  
7.154.   Having found that Indonesia has not demonstrated that all of the component elements of 
Article  XI:2(a) of the GATT  1994 are present, the Panel finds that neither the export ban nor the 
DPR are exempt from the obligations in Article  XI:1 of the GATT  1994.  
7.155.   The Panel, therefore, moves on to address the European  Union 's claims that the export ban 
and the DPR are inconsistent with Article  XI:1 of the GATT  1994. 
 
375 Indonesia's response to Panel question No.  100 (noting that HPAL technology is still experimental in 
Indonesia and different . sources had different estimates in respect of when HPAL plants would become 
operational. Indonesia is now in a position to confirm that the first HPAL plants in Indonesia are becoming 
operational, with eight plants starting until 2 026.).  
376 See MEMR, Presentation on "The Role of Minerals in the Development of Indonesia's Battery 
Industry" (10  September  2021), (Exhibit IDN -127 (BCI) ) providing estimates on projected impact of GDP from 
EV battery production by [[***]]. See also, Media report that in September 2021 Hyundai Motor Group and LG 
Energy Solution started construction of a 1.1 billion US dollar battery plant near Jakarta, which is scheduled to 
start production in 2024 . See Indonesia's opening statement at the first meeting with  the Panel, referring to  
Financial Times, "Indonesia and Foxconn in talks over electric vehicle investment" (1 November 2021), 
available at: https://www.ft.com/content/f1a805aa -82ac-4f24-ad22-58e43712091e , (Exhibit IDN -78). See 
also NIKKEI Asia, "Indonesia teams with LG to build $1.2bn battery plant" (25  May 2021), available at: 
https://asia.nikkei.com/Business/Automobiles/Indonesia -teams -with-LG-to-build-1.2bn -battery -plant, (Exhibit 
IDN-51). 
377 Although the content of the DPR is contained in Article  103 of Law No.  4/2009 it was first 
implemented via regulation in 2012 (see MEMR Regulation No.  7/2012).  
378 Indonesia's response to Panel question No.  101. WT/DS592/R  
BCI deleted, as indicated [[***]]  
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  7.2.6   Whether Indonesia's measures are inconsistent with Article  XI:1 of the GATT  1994  
7.2.6.1   The export ban  
7.156.   As noted above, Indonesia does not dispute that the export ban is a prohibition on 
exportation within the meaning of Article  XI:1 of the GATT  1994. Nor does it dispute that it has a 
limiting effect.  
7.157.   Despite Indonesia's admission, the burden remains on the European  Union  to make a prima 
facie case379 that the challenged measure – in this case, the alleged export ban on nic kel ore as 
currently implemented via MEMR Regulation No.  11/2019 and MOT Regulation No.  96/2019 – is a 
prohibition within the meaning of Article  XI of the GATT  1994.380  
7.158.   The Panel has found in paragraph  7.84 above  that the design, architecture, and revealing 
structure of the export ban, as explained by the European  Union  and confirmed by Indonesia, 
demonstrate that the export ban is a prohibition on exportation. T he Panel finds, therefore, that the 
export ban is inconsistent with the obligation in Article  XI:1 of the GATT  1994. 
7.2.6.2   The DPR  
7.159.   The Panel has found that the DPR falls within the scope of Article  XI:1 of the GATT  1994 
because it is a restriction on the sale fo r export of nickel ore.  
7.160.   The Panel has also found that the DPR has a limiting effect on exports by its very nature.  
7.161.   The Panel finds, therefore, that the DPR as set out in Law No.  4/2009 and implemented via 
MEMR Regulation Nos. 25/2018 and 7/2020, is incons istent with Article  XI:1 of the GATT  1994.  
7.162.   Indonesia has also raised an affirmative defence that its measures are justified under 
Article  XX(d) of the GATT  1994. The Panel  now analyse s this defence.  
7.3  Whether Indonesia's measures are justified under Article  XX(d) of the GATT  1994  
7.163.   Indonesia  submits an alternative affirmative defence under Article  XX(d) of the GATT  1994 
if the Panel concludes that the measures at issue do not fall within the scope of Article  XI:2(a) of 
the GATT  1994 and are inconsistent with Article  XI:1 of the GATT  1994.381 
7.164.   The Panel has found in section  7.2 above that the measures at issue are inconsistent with 
Article  XI:1 o f the GATT  1994 and do not fall within the scope Article  XI:2(a) of the GATT  1994. The 
Panel will therefore address Indonesia's alternative affirmative defence under subparagraph (d) of 
Article  XX of the GATT  1994. 
 
379 A prima facie  case is generally understood in WTO law to be one which, in the absence of effective 
refutation by the defending party, requires a panel,  as a matter of law, to rule in favour of the complaining 
party. See e.g. Appellate  Body Report, EC – Hormones , para. 104, and US – Wool Shirts and Blouses , p. 14, 
DSR 1997:I, p. 335. The Appellate  Body explained in US – Gambling  that such a prima facie  case must include 
evidence and legal argument that  "must be sufficient to identify the challenged measure and its basic import, 
identify the relevant WTO provision and obligation contained therein, and explain the basis for the claimed 
inconsistency of the m easure with that provision " (Appellate  Body Report, US – Gambling , para.  141). 
380 See Panel  Report , US – Shrimp (Ecuador), para. 7.9 finding that even though the United  States  did 
not contest Ecuador's claims the Panel was obligated under Article  11 of the DSU to determine whether 
Ecuador had made a prima facie case in order to find for Ecuador. See also Appellate  Body Report, 
US – Gambling, para. 139 ("[a] panel errs when it r ules on a claim for which the complaining party has failed 
to make a prima facie  case").  
381 Indonesia's first written submission, para.  14. See also Indonesia's first written submission, 
para. 232. WT/DS592/R  
BCI deleted , as indicated [[***]]  
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  7.165.   Article  XX(d) of th e GATT  1994 provides a s follows:  
Subject to the requirement that such measures are not applied in a manner which would 
constitute a means of arbitrary or unjustifiable discrimination between countries where 
the same conditions prevail, or a disguised restriction on internationa l trade, nothing in 
this Agreement shall be construed to prevent the adoption or enforcement by any 
contracting party of measures:  
… 
(d) necessary to secure compliance with laws or regulations which are not inconsistent 
with the provisions of this Agreemen t, including those relating to customs enforcement, 
the enforcement of monopolies operated under paragraph 4 of Article  II and 
Article  XVII, the protection of patents, trade marks and copyrights, and the prevention 
of deceptive practices; …  
7.166.   The Appellate  Body explained in US – Gasoline that a two -tiered analysis is the proper 
manner to consider  a defence under Article  XX of the GATT  1994: a panel is to first determine 
whether the measure satisfies the conditions set out in the subparagraph being invoked , and second 
to determine  whether the measure complies with the chapeau  of Article  XX.382 Subsequent panels 
dealing with defences under Article  XX of the GATT  1994 have consistently followed this approach.383 
In Indonesia – Import Licensing Regimes , the Appellate  Body stated that in particular circumstances 
a panel may decide to proceed with the analysis under the chapeau  without committing a reversible 
error.384 In its third -party submission, the United  States  submitted that  this might be such a case.385 
The European  Union , for its part, did not specifically ask the Panel to begin its analysis with the 
chapeau , but noted that this might be a case where it is appropriate to begin the analysis with the 
chapeau .386 
7.167.   The Panel  notes  that Indonesia – Import Licensing Regimes  involved the invocation of 
multiple subparagraphs of Article  XX. The Panel in that case, therefore, had a specific reason for 
beginning its analysis with the chapeau .387 There are no  similar compelling circumstance s in this 
case and the Panel, therefore, sees no reason to depart from the well -established practice of 
conducting the two -tiered analysis beginning with whether Indonesia's measures satisfy the 
subparagraph invoked, in this case subparagraph (d) of Articl e XX of the GATT  1994. 
7.168.   Indonesia, as the party invoking this defence, bears the burden of proof in this respect. The 
Panel will therefore determine whether Indonesia has demonstrated that (i)  its measures fall under 
subparagraph  (d) of Article  XX; and if they do, (ii) whether  they are consistent with the chapeau  of 
Article  XX. 
7.3.1   Whether the measures at issue are necessary to secure compliance with laws or 
regulations which are not inconsistent with the provisions  of the GATT  1994  
7.169.   For the challenged measur es – i.e. the export ban and the DPR – to be provisionally justified 
under subparagraph (d) of Article  XX Indonesia must demonstrate that (i)  the export ban and the 
 
382 Appellate  Body Report, US – Gasoline , p. 22, DSR 1996:I, p. 20. 
383 Appellate  Body Reports, US – Shrimp , para.  118; Dominican  Republic  – Import and Sale of 
Cigarettes , para.  64 (both quoting Appellate  Body Report, US – Gasoline , p. 22, DSR 1996:I, p. 20 ); 
Brazil  – Retreated Tyres , para.  139 (referring to Appellate  Body Reports, US – Gasoline , p. 22, DSR 1996:I, 
p. 20; Dominican  Republic  – Import and Sales of Cigarettes , para.  64; US – Shrimp , para.  149); EC – Seal 
Products , para.  5.169 (referring to Appellate  Body Reports, US – Gasoline , p. 22; US – Shrimp , paras.  119 and 
120; US – Gambling , para.  292); Colombia – Textiles , para.  5.67 (referring to Appellate  Body Reports, 
US – Gasoline , p. 22; Dominican  Republic  – Import and Sale of Cigarettes , para.  64; US – Shrimp , 
paras.  118-120; Brazil – Retreaded Tyres , para.  139). 
384 Appellate  Body Report, Indonesia – Import Licensing Regimes , para.  5.100.  
385 United  States ' third -party submission, para.  27 where the United  States  stated that "[n]othing in the 
text of Article  XX suggests that it is not possible to conduct an appropriate legal analysis beginning with the 
chapeau" because the chapeau and the subparagraphs are independent requirements.  
386 European  Union 's second written submission, para.  291; and response to Panel question No.  120. 
387 The Appellate  Body stated that "depending on the particular circumstances of the case at hand, 
including the way in which the defence is presented", a deviation from the sequence of analysis under 
Article  XX may be justified. See Appellate  Body Report, Indonesia – Import Lic ensing Regimes , para.  5.100 . WT/DS592/R  
BCI deleted, as indicated [[***]]  
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  DPR are designed to secure compliance with laws or regulations that are themselves not in consistent 
with the GATT  1994; and (ii)  the export ban and the DPR are necessary to secure such 
compliance.388 
7.3.1.1   Whether the measures at issue secure compliance with laws or regulations that 
are themselves not inconsistent with the GATT  1994  
7.170.   The Appellate  Body explained in India – Solar Cells that to demonstrate that a measure falls 
within the scope of subparagraph (d) of Article  XX of the GATT  1994 a responding Member must 
make three showings that apply cumulatively: (i)  that there are laws or regulations for w hich it 
seeks to secure compliance; (ii)  that such laws and regulations are not themselves inconsistent with 
the GATT  1994; and (iii)  that the challenged measures are designed to secure compliance with those 
laws and regulations.389   
7.3.1.1.1   Laws and regulations  
7.171.   The term "laws and regulations" is  broad and can refer to a wide variety of government 
measures. The term, however, must be read in the context of subparagraph (d) of Article  XX. For 
this reason, panels and the Appellate  Body have reasoned that not all laws  and regulations fall within 
the scope of subparagraph (d). In light of the obligation that the measures a respondent seeks to 
justify must be to secure compliance with those laws and regulations, prior panels and the 
Appellate  Body have, in the Panel's view, correctly  reasoned that the types of laws and regulations 
that can be justified under subparagraph  (d) must be those "in respect of which conduct would, or 
would not, be in 'compliance'" .390 
7.172.   The Appellate  Body has identified a number of  factors for panels to consider when evaluating 
whether a legal instrument raised by a respondent falls within the scope of laws and regulations 
within the meaning of Article  XX(d). These factors include " (i) the degree of normat ivity of the 
instrument and the extent to which the instrument operates to set out a rule of conduct or course 
of action that is to be observed within the domestic legal system of a Member; (ii) the degree of 
specificity of the relevant rule; (iii) whether  the rule is legally enforceable, including, e.g. before a 
court of law; (iv) whether the rule has been adopted or recognized by a competent authority 
possessing the necessary powers under the domestic legal system of a Member; (v) the form and 
title given  to any instrument or instruments containing the rule under the domestic legal system of 
a Member; and (vi) the penalties or sanctions that may accompany the relevant rule ".391 Further, 
the assessment of the legal instruments or provisions identified by the  respondent must be carried 
out "in light of the specific characteristics and features of the  instruments at issue, the rule alleged 
to exist, as well as the domestic legal system of the  Member concerned ".392 The Panel  finds valuable 
guidance in this approa ch. 
7.3.1.1.1.1   Main arguments of the parties and third parties  
7.173.   Indonesia's position on what the relevant laws and regulations are for the purposes of 
Article  XX(d) of the GATT  1994 has evolved throughout the proceedings.393 Ultimately, Indonesia 
 
388 Appellate  Body Report, Korea – Various Measures on Beef , para.  157. 
389 Appellate  Body Report, India – Solar Cells , para.  5.58. 
390 Appellate  Body Report, India – Solar Cells , para.  5.108. 
391 Appellate  Body Report, India – Solar Cells , para s. 5.150 and  6.6. 
392 Appellate  Body Report, India – Solar Cells , paras.  5.114 and  6.6. 
393 Indonesia initially identified  in its first written submission Articles 2, 3, 96 -98 of Law No.  4/2009, 
Articles 3, 10, 23(1)(b)  and 57 of Law No.  32/2009 and other implementing regulations as the "laws and 
regulations" within the meaning of Article  XX(d) of the GATT  1994. Indonesia  subsequently argued in its 
opening statement at the first meeting with the Panel that the relevant provisions were Articles  2(d), 3(b) , and 
96 of Law No.  4/2009 , Articles 3 and 57 of Law No.  32/2009 a nd their respective implementing regulations. 
Then Indonesia further narrowed the scope of its relevant "laws and regulations" in its responses to the Panel's 
questions following t he first meeting with the Panel by deleting the reference to the implementing regulations. 
In its second written submission, Indonesia first identified Articles 2 and 96 of Law No.  4/2009 and Articles 3 
and 57 of Law No.  32/2009 and three paragraphs later it referred to Articles 2(d), 3(b) and 96 of Law 
No. 4/2009, Articles 3 and 57 of Law No.  32/2009 and the respective implementing regulations. S ee 
Indonesia's first written submission, paras.  153-169; opening  statement at the first meeting with the Panel, 
para. 63; response to Panel question No.  10(c); and second written submission, para s. 121 and 12 4. See also 
European  Union 's second written submission, paras.  174, 189 -192, and 217.  WT/DS592/R  
BCI deleted , as indicated [[***]]  
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  submits that the export ban and the DPR secure compliance with Articles 96(c) and (d) of Law 
No. 4/2009 and Article  57 of Law No.  32/2009.394 Indonesia further submits that these provisions 
are part of two of the main pillars of its comprehensive policy framework to regulat e mining activities, 
namely the protection of Indonesia's environment through the imposition of sustainable mining 
requirements, and the conservation of natural resources through the imposition of mineral resource 
management requirements.395  
7.174.   The European  Union argues that the provisions identified by Indonesia do not constitute laws 
or regulations for the purposes of Article  XX(d) because they have an aspirational nature and provide 
for general objectives.396  
7.175.   The third parties tend to support the European  Union 's view with Canada, Korea, the United 
Kingdom, and the United  States  all arguing that broad policy objectives cannot serve as the laws 
and regulations referred to under Article  XX(d).397 Japan, for its part, submits that "a law or 
regulation that lays out broad policy goals without requiring specific actions is not necessarily 
excluded from the coverage of Article  XX(d) ".398 It further clarifies though that although laws and 
regulations "with a general objective and normative content  are not ex cluded from the coverage of 
Article  XX(d), the assessment of contribution of a measure at issue needs to have a minimum degree 
of specificity ".399 
7.3.1.1.1.2   Analysis by the Panel  
Article  96(c) of Law No.  4/2009  
7.176.   Article  96(c) of Law No.  4/2009 (Article  96(c)) is one o f the 18 provisions included in Part 
Two (Obligations) of Chapter XIII (Rights and obligations), and reads as follows:  
In applying the principles of good mining technique, the holders of IUP and IUPK shall:  
(c) manage and monitor the mining environment, including reclamation and post -
mining; …400 
7.177.   Indonesia explains that this provision , which  is part of Indonesia's comprehensive framework 
on sustainable mining and mineral resource management, sets out a sustainable mining binding 
requirement401 that imposes specific legally pr escribed rules of conduct  on Indonesian market 
operators.402 
7.178.   The Europ ean Union  argues that  Article  96 identifies general categories of rules that mining 
business licence holders are required to implement.403 In the European  Union 's view, this provision 
 
394 Indonesia's response to Panel question No.  105. 
395 Indonesia's first written submission, paras.  142-143. 
396 European  Union 's second written submission, paras.  200-201 and 210 -211; and opening statement 
at the first meeting of the Panel, para.  68. 
397 Canada's third -party response to Panel question Nos. 7 and 9; Korea's response to Panel question 
No. 7 (noting that while broad policy objectives can be used as an interpretative tool to clarify the meaning of 
other provisions the actual laws and regulations must give rise to specific rul es or norms); United Kingdom's 
response to Panel question Nos. 7 and 9 (arguing that an overly expansive interpretation of laws and 
regulations would allow GATT -inconsistent measures to be justified by referring to "aspirational objectives or 
broad policy goals, which would disturb the balance between trade liberalisation and the right to regulate 
enshrined in Article  XX"); and United  States ' response to Panel question No.  7. 
398 Japan's third -party response to Panel question No.  7. 
399 Japan's third -party resp onse to Panel question No.  7. 
400 Law No.  4/2009, (Exhibit  EU-1(b)), Article  96(c). The Panel notes that Law No.  3/2020 amended  
Law 4/2009 so that what had been  Article  96(c) is now Article  96(b) ; moreover the text was slightly modified  
in the following manner: "In the application of good mining technique principles, the holder of IUP or IUPK 
must  implement …". The Panel does not find these changes material to the analysis and will continue to refer  to 
Article  96(c) of Law No.  4/2009 as the parties do  so throughout their argumentation.  
401 Indonesia's response to Panel question No. 105.  
402 Indonesia's second written submission, para.  146. 
403 European  Union 's second written submission, para.  205. WT/DS592/R  
BCI deleted, as indicated [[***]]  
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  is insufficiently specific for the purposes of Article  XX(d) because it i s "framed in general terms and 
defines a broad task as opposed to specific rules or a course of conduct" .404 
7.179.   The obligation imposed on IUP and IUPK holders in Article  96(c) to manage and monitor the 
mining environment, including reclamation and post -mining,  takes places in the context of the 
application of the principles of good mining techniques. MEMR Regulation No. 26/2018 on the 
implementation of good mining principles and mineral and coal mining supervision405 provides 
guidance for the implementation of g ood mining technical practices. Good mining principles are 
divided into those dealing with technical issues and those concerning enterprise management, as 
shown below:  
Table  5: Good mining principles in MEMR Regulation No.  26/2018  
Good mining principles  
Good mining technical principles  
(implementation of the following aspects)406 ↓ Mining enterprise management 
(implementation of the following aspects)407 ↓ 
(a) mining technical matters;  (a) marketing;  
(b) mineral and coal conservation;  (b) finance;  
(c) mining occupational health and safety;  (c) data management;  
(d) mining operation safety;  (d) use of goods, services, and technology;  
(e) management of the mining environment, 
reclamation, post -mining, and post -operation; and  (e) development of mining technical manpower;  
(f) use of technology, engineering capability, design, 
development, and application of the mining 
technology.  (f) local community development and 
empowerment;  
 (g) other activities in the field of mining business 
related to public interests;  
 (h) implementation of activities pursuant to IUP or 
IUPK; and  
 (i) amount/number, type, and quality of mining 
business products.  
 
7.180.   Both Article  96(c) of Law No.  4/2009 and the good mining technical principle set out in 
Article  3(3)(e) of MEMR Regulation No.  26/2018 deal with management of the mining environment, 
including reclamation and post -mining.  
7.181.   The first rel evant factor is the degree of normativity of the relevant provision  and the extent 
to which it sets out a rule of action to be observed within the domestic legal system. As noted above, 
this has been interpreted as "[t]he 'laws or regulations' … in respect  of which conduct would, or 
would not, be in 'compliance'."408 The Appellate  Body drew a distinction between a legal instrument 
that "lays down a particular rule of conduct or course of action within the domestic legal system of 
a Member" and a legal instru ment that "simply provid[es] a legal basis for action that may be 
consistent with certain objectives" .409 The use of coercion or an absolute certainty in the achievement 
of the stated goal of a measure is not required to find that a provision or a legal ins trument 
constitutes a "law or regulation".410 Article  96(c) establishes an obligation for IUP and IUPK holders, 
as denoted by the use of the term "shall" followed by the verbs "manage and monitor". The obligation 
to manage and monitor the mining environment  established in subparagraph (c) entails certain acts 
or omissions for the IUP and IUPK holders, which may consist, for example, in conducting certain 
monitoring activities or refraining from remaining passive in certain situations such as environmental 
degradation beyond what is acceptable according to Indonesia's  environmental laws and regulations. 
For this reason, the Panel  consider s that it may be possible to determine whether the conduct of an 
IUP and IUPK holder would be in compliance with the obligat ion provided in Article  96(c) of Law 
No. 4/2009.  
7.182.   The second relevant factor is the degree of specificity  of Article  96(c) . The Appellate  Body 
considered  that "[t]he "'more precise ly' a respondent is able to identify  specific rules, obligations, or 
 
404 European  Union 's second written submission, para.  208. 
405 MEMR Regulation No.  26/2018 , (Exhibit IDN -56). 
406 MEMR Regulation No.  26/2018 , (Exhibit IDN -56), Article 3(3).  
407 MEMR Regulation No. 26/2018 , (Exhibit IDN -56), Article  3(4). 
408 See para.  7.171  above referring to  Appellate  Body Report, India – Solar Cells , para.  5.108.  
409 Appellate  Body Report, India – Solar Cells , para.  5.110.  
410 Appellate  Body Report, Mexico – Taxes on Soft Drinks , para. 74. See also Appellate  Body Report, 
India – Solar Cells , para.  5.108 . WT/DS592/R  
BCI deleted , as indicated [[***]]  
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  requirements contained in the  relevant  'laws or regulations ', the 'more likely ' it will be able to 
elucidate how and why the inconsistent measure secures compliance with such 'laws or 
regulations '".411 The Panel  notes that  Article 96(c) touches upon broad areas of mining activities 
such as the management and monitoring of the mining environment.  
7.183.   The third relevant factor concerns the enforceability of Article  96(c). Although there is no 
need for a law or regulation within th e meaning of Article  XX(d) to be legally enforceable, the 
Appellate  Body has considered that legal enforceability "may demonstrate the extent to which [a 
law or regulation] sets out a rule of conduct or course of action that is to be observed within the 
domestic legal system of a Member".412 The Panel  considers Article  96(c) to be an enforceable 
provision because of the binding nature of the obligation it contains, i.e. "shall manage and monitor 
the mining environment ". Further, the Panel  notes that Article  151 of Law No.  4/2009 provides for 
administrative sanctions for non -compliance with Article  96 that can take the form of a written 
warning, the suspension of part or all of the exploration or operational production, or the revocation 
of an IUP/IPR/IUPK . The Panel  recalls that the imposition of penalties and sa nctions is not required 
for a provision or legal instrument to qualify as a law or regulation but it is nonetheless relevant to 
the Panel's analysis.413 
7.184.   The last two relevant factors relat e to the authority that has adopted or recognized 
Article  96(c)  and the form and title of the instrument containing Article  96(c) , which "may shed light 
on its legal status a nd content " but are not determinative of whether it qualifies as a "law or 
regulat ion".414 Article  96(c) is one of the 18 provisions included in Part Two of the Law on Mineral 
and Coal Mining of Indonesia, i.e. Law No.  4/2009 , entitled "Obligations" . The Government of 
Indonesia enacted th is Law.415 
7.185.   A careful analysis of the above -mentione d factors leads us to conclude that Article  96(c) is 
a law or regulation within the meaning of Article  XX(d) of the GATT  1994 because it  sets out an 
obligation  to be observed by IUP and IUPK holders within the Indonesian  legal system  that can be 
enforced,  and its degree of normativity is sufficient for the purposes of Article  XX(d) of the 
GATT  1994. 
Article  96(d) of Law No.  4/2009  
7.186.   Article  96(d) of Law No.  4/2009 (Article  96(d)) is one of the 18 provisions included in Part 
Two (Obligat ions) of Chapter XIII (Rights and obligations) . The Government of Indonesia enacted 
this Law.416 The provision reads as follows:  
In applying the principles of good mining technique, the holders of IUP and IUPK shall:  
… (d) make mineral and coal resources conservation efforts; …  
7.187.   Indonesia explains that this provision, which is part of Indonesia's comprehensive framework 
on sustainab le mining and mineral resource management, sets out a resource management  
requirement417 that imposes on Indonesian market operators  "specific , legally prescribed rules of 
conduct" .418 
7.188.   The European  Union  argues that Article  96(d)  is framed in general terms and is insufficiently 
specific since it establishes a broad task, and not specific rules or course of conduct as required by 
Article  XX of the GATT  1994.419 
 
411 Appellate  Body Report, Argentina – Financial Services , para.  6.203. See also Appellate  Body Report, 
India – Solar Cells , para.  5.110.  
412 Appellate  Body Report, India – Solar Cells , para.  5.109.  
413 Appellate  Body Report, India – Solar Cells , para.  5.109.  
414 Appellate  Body Report, India – Solar Cells , para.  5.112.  
415 Indonesia's first written submission, para.  154. 
416 Indonesia's first written submission, para.  154. 
417 Indonesia's response to Panel question No.  105. 
418 Indonesia's response to Panel question No.  105. See more generally Indonesia's second written 
submission, para.  146. 
419 European  Union 's second written submission, para.  208. WT/DS592/R  
BCI deleted, as indicated [[***]]  
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  7.189.   Article  96(d) refers to the obligation of IUP and IUPK holders to " make  mineral and coal 
resou rces conservation efforts ". (emphasis added) Such vague language about the content of the 
obligation make s this provision closer to a legal basis for action consistent with good mining 
principles than to an established rule of conduct or course of action. Even more so as the efforts 
referred to in Article  96(d) concern a very broad area of mining activities, namely mineral and coal 
resources conservation . The Panel  refers to its analysis above concerning  the authority that adopted 
Article  96(d)  and the form  and title of the legal instrument in which it is found since both provisions 
form part of the same legal instrument, i.e. Law No.  4/2009.    
7.190.   Similar to subparagraph (c) , subparagraph (d) also closely resembles the good mining 
technical principle set out in  Article  3(3)(b) of MEMR Regulation No.  26/2018, which concerns 
mineral and coal conservation.  
7.191.   The Panel acknowledges that Article  151 of Law No.  4/2009 establishes the ability to impose 
sanctions for non -compliance with Article  96. The Panel is not convinced , however,  that this would 
disturb its understanding of Article  96(d). Because of the "best efforts " character of the provision it 
is hard to see how the sanctions under Article  151 could be enforced .  
7.192.   In light of the above, the Panel  consider s that Article  96(d) of Law No.  4/2009 does not 
qualify as a law or regulation for the purposes of Article  XX(d) of the GATT  1994 because it is not 
an enforceable obligation whose compliance can be secured.  
Article  57 of Law No.  32/2009  
7.193.   Finally, the Panel  turns to the third provision identified by Indonesia, namely Article  57 of 
Law No.  32/2009 concerning the protection and management of environment (Article  57). This 
provision, which is the only provision in Chapter VI of Law No.  32/2009, entitled "Maintenance ", 
reads as follows:  
(1) Maintenance of environment shall be conducted by ways of: a. conservation of 
natural resources; b. reserves of natural resources; and/or c. preservation of the 
function of atmosphere.  
(2) Conservation of natural resources as cited  in paragraph (1) letter a shall cover the 
activities of: a. protecting the natural resources; b. preserving the natural resources; 
and c. sustaining the natural resources.  
(3) Preserving the natural resources as cited in paragraph (1) letter b shall be of  the 
natural resource that cannot be managed in a certain period of time.  
(4) Sustaining the function of atmosphere as cited in paragraph (1) letter c shall include: 
a. the mitigation and adaptation to climate change; b. the protection of ozone layer; 
and c. the safeguard against acid rain.  
(5) Further provisions on the conservation and reserves of natural resources and the 
preservation of the function of atmosphere as cited in paragraph (1) shall be regulated 
under a Government Regulation.420 
7.194.   Indonesia expl ains that this provision is part of Indonesia's comprehensive framework on 
sustainable mining and mineral resource management and sets out both sustainable mining and 
resource management requirement s. Indonesia argues that Article  57 imposes "specific legally 
prescribed rules of conduct"  that are not hortatory or vague421, as can be seen from its language 
("shall be conducted").422  
7.195.   The European  Union  submits that Article  57 is formulated in general terms and, therefore, 
lacks the requi red degree of normative content or specificity.  In particular , the European  Union 
 
420 Law No.  32/2009 , (Exhibit IDN -53).  
421 Indonesia's response to Panel question No.  105. 
422 Indonesia's second written submission, para.  146. WT/DS592/R  
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  argues that it is  unclear how the obligation to ensure the preservation of the function of the 
atmosphere can constitute a sustainable mining requirement.423 
7.196.   Indonesia refers to the entirety of Article  57 and not to any one particular subparagraph. 
Paragraph (1) of this provision contains the only obligation, namely that IUP and IUPK holders 
preserve the  environment by three means, i.e. (i)  conservation of natu ral resources; (ii) reserves of 
natural resources; and/or (iii) preservation of the function of atmosphere . Paragraphs  (2) to (4) 
define the scope of each of the se means, and paragraph (5) provides for further regulatory 
development of this provision throu gh a government regulation.  
7.197.   The scope of application of this provision  is broad, playing an umbrella role on several  issues 
related to the preservation of the environment.  Paragraph (5) indicates that Article  57 does not itself 
set out the specific manner in which IUP and IUPK holders can comply with the obligation in 
paragraph (1), but rather that the specific provisions are meant to be set down in a n implementing 
regulation. Such implementing regulations should have been enacted or issued within a period of no 
longer than one year after the enactment of Law No.  32/2009.424 Indonesia did not argue that 
Article  57 needed to be read together with a particular implementing regulation in terms of its 
affirmative defence under Article  XX(d) of the GATT  1994. Moreover, nothing in  Law No.  32/2009 
provide s for penalties or sanctions in case of non -compliance.  The Panel  concludes, therefore, that  
Article  57 on its own does not contain  a legally enforceable  obligation.   
7.198.   Article  57 is the only provision in Chapte r VI of Law No.  32/2009 on "Maintenance". Th e 
Government of Indonesia enacted th is Law.425  
7.199.   The Panel  considers that the distinction drawn by the Appellate  Body between a legal 
instrument that "lays down a particular rule of conduct or course of action with in the domestic legal 
system of a Member" and a legal instrument that "simply provid[es] a legal basis for action that may 
be consistent with certain objectives"426 is particularly relevant when assessing this provision. The 
Panel considers that  Article  57 falls into the category of provisions that provide a legal basis for 
action; it does not lay down a sufficiently specific rule of conduct or course of action that can be 
enforced but rather some broad guidelines that should be translated into specific acti ons aiming at 
preserving the environment in the fields of conservation and reserves of natural resources and 
preservation of the function of atmosphere.  
7.200.   Based on the above considerations, the Panel  conclude s that Article  57 of Law No.  32/2009  
does not qualify as a law or regulation for the purposes of Article  XX(d) of the GATT  1994 because 
its normative content and specificity are not sufficient to consider that it is an enforceable obligation 
whose compliance can be secured . 
Conclusion  
7.201.   In sum , the Panel  finds that Indonesia has demonstrated that Article  96(c) of Law 
No. 4/2009 is a law or regulation within the meaning of Article  XX(d) of the GATT  1994, but 
Indonesia has failed to demonstrate that Article  96(d) of Law  No. 4/2009 and Article  57 of Law 
No. 32/2009 fall within the scope of the subparagraph.  
7.202.   Consequently, the Panel  will continue its  analysis with respect to Article  96(c) of Law 
No. 4/2009 only. The Panel  now examine s whether this provision is "not inconsistent " with the  
provisions of the  GATT  1994.  
7.3.1.1.2   Consistency of the laws and regulations with the GATT  1994  
7.203.   Past panels dealing with defences under Article  XX(d) such as Colombia – Ports of Entry  and 
Colombia – Textiles  found that a responding Member's law should be treated as WTO  consistent until 
proven otherwise on the basis of an Appellate  Body statement in US – Carbon Steel .427 Even if this 
 
423 European  Union 's comments on Indonesia's response to Panel question No.  106. 
424 Law No. 32/2009, (Exhibit IDN -53), Article  126. 
425 Indonesia's first written submission, paras.  154 and 161.  
426 Appellate  Body Report, India – Solar Cells , para.  5.110.  
427 Panel  Report s, Colombia – Ports of Entry , para . 7.531; and Colombia – Textiles , para . 7.511  
(referring to Appella te Body Report, US – Carbon Steel , para.  157).  WT/DS592/R  
BCI deleted, as indicated [[***]]  
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  Appellate  Body statement concerned the consistency of the challenged measures, and not the 
consistency of the legal instruments the measures at issue seek to secure compliance with, the Panel 
considers it also relevant for this element of the legal standard because it r eflects the general 
principle that the party arguing that a measure is WTO  inconsistent must prove it.  
7.3.1.1.2.1   Main arguments of the parties  
7.204.   Indonesia  argues that the sustainable mining and mineral resource management 
requirements of Indonesia's comprehensive po licy framework on mining activities  are consistent with 
its WTO obligations as well as with other international commitments.428 In particular, Indonesia 
submits that " its sustainable mining and mineral resource management requirements pursue, and 
are fully in line with, a core objective of the WTO covered agreements, namely, the sustainable use 
of natural resources and the preservation of the environment, which finds explicit expression in the 
Preamble to the WTO  Agreement ".429 Further, Indonesia contends tha t its "sustainable mining and 
mineral resource management laws … are non -discriminatory, do not entail quantitative restrictions, 
are fully transparent and administered in a uniform, reasonable and impartial manner" .430 
7.205.   Indonesia further submits that " gener ally, and in the absence of any indication to the 
contrary, laws and regulations consistent with the sustainable use of natural resources and the 
preservation of the environment can properly be characterized as GATT -consistent 'laws or 
regulations ' for the  purposes of Article  XX(d) ".431 
7.206.   The European  Union  initially did not express its views on the consistency of Indonesia's laws 
and regulations with the GATT  1994 because it considered Indonesia had not particulari zed its case. 
Nonetheless, the European  Union  states that, in general terms, it is not suggest ing that laws or 
regulations that are designed to ensure environmental protection or sustainable mining are WTO 
inconsistent.432 After clarifications by Indonesia at the second substantive meeting regarding t he 
provisions on which it relies for the purpose of its defence under Article  XX, the European  Union  
indicate s that it does not contest that those specific provisions are WTO consistent.433 
7.3.1.1.2.2   Analysis by the Panel  
7.207.   Past panels have presumed the consistency of the relevant laws and regulations  under 
Article  XX(d) of the GATT  1994 when the complainant did not contest it.434 
7.208.   Article  96(c) of Law No.  4/2009 reads as follows:  
In applying the principles of good mining technique, the holders of IUP and I UPK shall:  
(c) manage and monitor the mining environment, including reclamation and post -
mining; …435 
7.209.   The Panel finds nothing in the text of Article  96(c) of Law No 4/2009 that indicates that this 
provision is inconsistent with the GATT  1994. 
7.210.   As the Europe an Union  does not dispute the GATT -consistency of Article  96(c) and in the 
absence of any evidence to the contrary, the Panel sees no basis to find that Article  96(c) of Law 
 
428 Indonesia's first written submission, para.  143. See also Indonesia's first written submission, 
para. 152; and second written submission, para.  125. For example, Indonesia claims that its "laws and 
regulations  directly conform with paragraph 46 of the Annex to the Johannesburg Declaration on Sustainable 
Development, Plan of Implementation of the World Summit on Sustainable Development" . See Indonesia's first 
written submission, para.  173. 
429 Indonesia's second written submission, para.  125. 
430 Indonesia's first written submission, para.  172. 
431 Indonesia's second written submission, para.  125. 
432 European  Union 's response to Panel question No.  40. 
433 European  Union 's response to Panel question No.  104. 
434 See e.g. Panel  Report , Indonesia – Chicken , para.  7.124 (referring to Appellate  Body Report, 
US – Carbon Steel , para.  157). 
435 Law No.  4/2009, (Exhibit  EU-1(b)), Article  96(c).  WT/DS592/R  
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  No. 4/2009 is inconsistent with the GATT  1994. The Panel  will therefore  proceed wi th its analysis on 
the basis that Article  96(c) of Law 4/2009 is not inconsistent with the GATT  1994. 
7.3.1.1.3   Secure compliance with the relevant laws and regulations  
7.211.   The next element of analysis under Article  XX(d) is whether the challenged measures – 
export ban and the DPR – secure compliance with Article  96(c). The Panel  will examine each measure 
separately.  
7.212.   To determine whether a measure at issue secures  compliance with the relevant laws or 
regulations a panel must assess whether those measures are designed  to secure compliance with 
them436, that is, whether there is a relationship between the measure at issue and ensuring 
compliance with those laws or regulations . This initial assessment has been traditionally considered 
to be "not… particularly demanding"437 since it requires that an  examination of the design of the 
measure at issue, including its content, structure, and expected operation, reveals that the measure 
is not incapable of ensuring compliance with the relevant law or regulation.438 
7.213.   Thus, if the Panel were to find that either the  export ban or the DPR is capable , even remotely 
or hypothetically, of securing compliance with Article  96(c) , that would be enough to conclude that 
the measure (s) at issue secure compliance with this provision with in the meaning of Article  XX(d) of 
the GATT  1994. 
7.3.1.1.3.1   Export ban  
Main arguments of the parties  
7.214.   Indonesia submits that the export ban is "manifestly not 'incapable' of securing compliance 
with Indonesia's sustainable mining and mineral resource management requ irements" .439 Indonesia  
argues that the export prohibition is a " preventive  measure[] to secure compliance with its 
comprehensive policy framework for mining activities, in particular sustainable mining and mineral 
resource management requirements" .440 In th is regard, Indonesia notes that foreign demand 
presents a greater risk of non -compliance because foreign purchasers of nickel ore do not fall within 
Indonesia's jurisdiction.441 Indonesia further argues that remedial measures to address these risks 
have not  worked in the past.442  
7.215.   Indonesia argues that the export prohibition "reduces total Indonesian production and 
extraction of nickel ore".443 In this respect Indonesia notes that " export demand was met almost 
exclusively by illegal or poorly regulated mining activities "444 and, therefore, an export ban would 
reduce such mining practices and the adverse environmental and resource conservation effects 
closely associated with them.445  
 
436 Appellate  Body Report, Korea  – Various Measures on Beef , para. 157. 
437 Appellate  Body Report, Colombia – Textiles , para.  5.70. 
438 Appellate  Body Report, Argentina – Financial Services , para.  6.203. The Appellate Body has warned 
about an "analysis of the ["design" step] in such a way as to lead [the Panel] to truncate its analysis 
prematurely and thereby foreclose consideration of crucial aspects of the respondent's defence relating to the 
'necessity' analysis" . See Appellate  Body Report, Argentina – Financial Services , para.  6.203.  
439 Indonesia's first written submission, para.  176. 
440 Indonesia's first written submission, para.  145. See also Indonesia's first written submission, 
para. 144. 
441 Indonesia's second written submission, para.  173. 
442 Indonesia's second written submission, paras.  171-172; and opening sta tement at the second  
meeting of the Panel, para.  84.  
443 Indonesia's first written submission, para.  177. 
444 Indonesia's response to Panel question No.  64. 
445 Indonesia's first written submission, para.  177. See also Indonesia's second written submission, 
para. 128. WT/DS592/R  
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  7.216.   Indonesia contends that the fact that the export ban has an eco nomic objective related to 
the increase of added value in Indonesia does not detract from the fact that it also has a resource 
conservation objective, namely,  to decrease the extraction rate.446 
7.217.   Indonesia further emphasizes the close relationship between th e export ban and Indonesia's 
sustainable mining and mineral resource management requirements in light of the explicit references 
to Law Nos. 4/2009 and 32/2009  in MEMR Regulation No. 11/2019  and MOT Regulation 
No. 96/2019 .447  
7.218.   The European  Union  contends that the export ban is not designed to secure compliance with 
the relevant laws and regulations identified by Indonesia but instead to increase the added value of 
Indonesia's exports.448 The European  Union  argues that Indonesia has not demonstrate d a 
relationship between the export ban and t he objective of securing the enforcement of rules requiring 
permit holders in general terms to adhere to environmental standards  for the following reasons .  
7.219.   First, the European  Union  contends that the export ban  does not prevent or limit ore 
extraction and that Indonesia has not identified any limitation on domestic consumption or 
extraction. The European  Union  explains that, on the contrary, evidence on the record shows that 
overall domestic extraction and consu mption will increase in the coming years. In the 
European  Union 's view, this means that the export ban " is plainly not designed to reduce nickel ore 
production and extraction but solely to modify the destination of the ore once extracted" .449 In this 
regard , the European  Union  considers that its approach finds support in the same UNCTAD Report 
Indonesia relies upon, which "suggests that the primary objective was in fact that of value 
addition"450 and not ensuring adherence to environmental standards.  
7.220.   Second,  the European  Union  is of the view that Indonesia has not demonstrated how the 
ban on exports of nickel ore incentivizes domestic producers to comply with the relevant domestic 
regulatory requirements or  improves the enforcement issues Indonesia is facing.451 
7.221.   In response to Indonesia's argument that there is a relationship between the export ban and 
Law No.  4/2009 because the legal instruments that implement the export ban refer to Law 
No. 4/2009, the European  Union  notes that the references made in MEMR Reg ulation No.  11/2019 
and MOT Regulation No.  96/2019 to Law No.  4/2009 do not indicate that the export ban seeks to 
secure compliance with Article  96(c). In this respect, the European  Union  notes that MEMR 
Regulation No.  11/2019 refers to 11 different legal instruments and does not elaborate on the link 
between this Regulation and Law No.  4/2009.452 The European  Union  notes that MEMR Regulation 
No. 11/2019 explains in its preamble that the changes it introduces aim at "ensur[ing] the continuity 
of supply of ni ckel processing and refining facilities as directed by the President of the Republic of 
Indonesia on 24  July 2019 and 26  August  2019" in light of the domestic nickel processing and 
refining facilities that have been built .453  
7.222.   As regards MOT Regulation No.  96/2019, the European  Union  notes that it was enacted to 
"provide business certainty, increase the added value of the Export of Mining commodities, and 
support the effectiveness of the implementation of the Export of Mining commodities as th e 
Processing and refining products through online single licensing service system ".454 The 
European  Union  emphasizes that MOT Regulation No.  96/2019 only refers to Article  102 of Law 
No. 4/2009 in the context of the need for IUP and IUPK holders to increase  the added value of the 
mineral resources. For the European  Union , this indicates that the objective of MOT Regulation 
 
446 Indonesia's second written submission, para.  143 (referring to UNCTAD, Lessons from Indonesia's 
ban on nickel exports, Background document, (Exhibit IDN -23), p. 3).  
447 Indonesia's first written submission, para.  179. 
448 European  Union's second written submission, para.  175. See also European  Union 's second written 
submission, para.  219. 
449 European  Union 's second written submission, paras.  225-226. 
450 European  Union 's second written submission, para.  230. 
451 European  Union 's second writ ten submission, paras.  233-234. 
452 European  Union 's second written submission, para.  245. 
453 European  Union 's second written submission, para.  245. 
454 European  Union 's second written submission, para.  245. WT/DS592/R  
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  No. 96/2019 "is about securing added value and not ensuring that there are high standards of 
environmental protection or the conservation  of natural resources".455 
Analysis by the Panel  
7.223.   The question before the Panel is whether the export ban is not incapable of securing  
compliance with Article  96(c) of the Law No.  4/2009. The Panel  agrees with past panels and the 
Appellate  Body that an  exami nation of the design of the export ban , including its content, structure, 
and expected operation  may reveal whether that is indeed the case.  
7.224.   The export ban is implemented through Article  3 and Appendix  IV of MOT Regulation 
No. 96/2019  and Article  1 paragraph 2 of MEMR Regulation No.  11/2019 .456 The exportation of nickel 
ore was prohibited as from 1  January  2020, without any indication of a date when the prohibition 
would end.  
7.225.   MEMR Regulation No.  11/2019 is the second amendment to MEMR Regulation No.  25/2018, 
which concerns mineral and coal businesses. The preamble of MEMR Regulation No.  11/2019 refers 
to the need to amend MEMR Regulation No.  25/2018 to "ensure sustainability of supply for purifying 
and processing facilities of nickel " and  mentions the establishment of several nickel and purifying 
and processing facilities in Indonesia.457 MOT Regulation No.  96/2019 deals with exports of 
processed and purified mining products. The preamble of MOT Regulation No.  96/2019 refers to the 
need to improve export regulations for processed and purified mining products to "provide business 
certainty" and "increase the added value of Mining Products".458 It also refers to the obligation of 
IUP and IUPK holders to "increase the added value of mineral resources in  mining, processing and 
refining, as well as mineral utilization".459 
7.226.   The legal instruments that implement  the export ban do not explicitly pursue an 
environmental objective, which is, according to Indonesia, the objective of Article  96(c), but rather 
an ec onomic objective. Yet, the Panel  cannot rule out that the export ban may have a positive impact 
on the environment, as alleged by Indonesia, which considers that the export ban fulfils a resource 
conservation objective by decreasing the extraction rate.  
7.227.   In this respect, the Panel  observes that there has been a reduction in the  total production 
of nickel ore  since the entry into force of the export ban , i.e. 61  million  tonnes in 2019 vs 52.7  million 
tonnes in 2020.460 The reduction in production (8.3  million  tonnes) is lower than the reduction in 
exports (from 30.2  million  tonnes in 2019 to zero in 2020) . The Panel further notes that domestic 
consumption of nickel ore doubled from 2019 (21.6  million  tonnes) to 2020 (43.5  million  tonnes461). 
Domestic consumption is expected to increase even more significantly with the introduction of a 
large number of new sm elters expected to be operational by 2026462, which would  enable th e 
development in Indonesia of an EV battery industry in the future.463 This shift aligns with the purpose 
expressed in the preamble of MEMR Regulation No.  11/2019 of  "ensur [ing] sustainabilit y of supply 
for purifying and processing facilities of nickel  … established domestically ".464  
7.228.   In light of this evidence, the Panel cannot exclude the possibility that the export ban has 
had some downward pressure on extraction rates. The Panel notes, howev er, that Indonesia itself 
 
455 European  Union 's second written submission, para.  245. 
456 See section 2.1.1 above and European  Union 's first written submission, paras.  24-26.  
457 MEMR Regulation No.  11/2019, (Exhibit EU -10(b)), preamble , para.  (a). 
458 MOT Regulation No.  96/2019, (Exhibit EU -11(b)), preamble , para.  (a). 
459 MOT Regulation No.  96/2019, (Exhibit EU -11(b)), preamble , para.  (b). 
460 MEMR, Excel of "Production and Sales of Nickel Ore from 2010 -2020", (Exhibit IDN -24). 
461 The Maryono Report indicates that [[***]] (Exhibit IDN -18(BCI)), p. 24.  
462 Maryono Report, (Exhibit IDN -18(BCI) ), p. 24 [[ ***]]. 
463 Indonesia's response to Panel question No.  100; MEMR, Presentation on "The Role of Minerals in the 
Development of Indonesia's Battery Industry", 10  September  2021, (Exhibit IDN -127 (BCI)); NIKKEI Asia, 
"Indonesia teams with LG to build $1.2bn battery plant" , 25 May 2021,  (Exhibit IDN -51); Financial Times, 
"Indonesia and Foxconn in talks over electric vehicle investment", 1 November 2021, (Exhibit IDN -78); The 
Indonesian Government 's Arguments to WTO Regarding the Ban on Nickel Exports , 5 December  2019, (Exhibit 
EU-20), p.  1; and Remarks of President of the Republic of Indonesia at the Opening Inauguration of the 2021 
National Coordination Meeting and Investment Service Award, 24  November  2021, (Exhibit EU -22), p. 5.  
464 MEMR Regulation No.  11/ 2019, (Exh ibit 10(b)), preamble , para.  (a). WT/DS592/R  
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  predicts that increased domestic demand will require expansion in nickel ore extraction465 as 
Indonesia does not satisfy the domestic demand for nickel ore through imports.466  
7.229.   Indonesia argues that the rate of ex traction  is not the  only relevant factor to consider when 
looking at the effect of the export ban because the export -oriented mines were operating illegally or 
under poor regulation and caused more environmental degradation than mines selling to domestic 
smelters.467 The Pane l does not find evidence on the record that establishes such a causal 
relationship between the export ban and an improvement in the sustainability of mining practices in 
Indonesia .468 The Panel  cannot, however, completely dismiss the possibility that  the ex port ban, by 
removing  foreign purchasers from the market , also reduces illegal and poorly regulated mining 
activity and , consequently, contributes to the sustainability of nickel mining in Indonesia .  
7.230.   The Panel  is of the view that m easures can have multiple objectives  and effects .469 Even 
though the stated objective of the export ban relates to ensuring supply for the domestic industry 
this does not preclude that it was also intended to address problems related to the sustainability of 
export -oriented  nickel mines. The Panel also cannot exclude that the resulting reduction in exports 
could have had a positive impact on the sustainability of nickel mining in Indonesia.  
7.231.   The European  Union  is correct that  the prohibition  on nickel ore exports was not done in 
conjunction with a limitation on domestic consumption of nickel ore. The Panel  agrees with 
Indonesia, however, that such restrictions on domestic consumption do not constitute an integral 
part of the legal standard under Article  XX(d) of the GATT  1994 as they would if Indonesia had 
invoked Article  XX(g). T he presence or lack of such restrictions,  nonetheless , constitutes a  relevant 
factor in assessing  Indonesia's argument that the export ban pursues the conservation objective  of 
decreas ing the extractio n rate of nickel ore.470 
7.232.   As regards the relationship between the export ban and Article  96(c) of Law No.  4/2009, the 
Panel  does not find  anything in the legal instruments that implement the export ban that explicit ly 
refers to Article  96(c) . Article  3 and A ppendix  IV of MOT Regulation No.  96/2019  and Article  1 
paragraph  2 of MEMR Regulation No.  11/2019  whereby the export ban is implemented,  make no 
reference to Article  96(c) or any issue related to sustainable mining and resource conservation. The 
Panel  finds, however, a certain degree of connection in the sense that the export ban and 
Article  96(c) do in fact concern the management of mining activity in Indonesia. In this respect, the 
Panel  notes that MEMR Regulation No.  11/2019 and MOT Regulation No.  96/2019 refer to 
Law No. 4/2009, which is the cornerstone of Indonesia's legal framework governing mining.  
7.233.   The foregoing does not detract from the fact that an export ban may, to a certain extent, 
have the effect of securing compliance with Article  96(c) by reducing the total production and 
extraction of nickel ore. The fact that there is not absolute certainty on what the effects of the export 
ban currently are or will be does not prevent the Panel  from concluding that  the export ban is not 
incapable of secu ring compliance with Article  96(c). The fact that there is a possibility, even remote, 
for the export ban to secure compliance with Article  96(c), therefore, leads the Panel  to conclude 
 
465 Government Regulation No.  14 of 2015 on the RIPIN , (Exhibit EU -17(rev)), Table  4.1.  
466 INSG, Report on Nickel Production and Usage in Indonesia, February 2020 (Exhibit IDN -13) shows 
that for the period 2015 -2018 Indonesia did not import sign ificant quantities of nickel ores, nickel 
concentrates, ferro nickel, or nickel mattes. Indonesia does import nickel hydroxide, nickel sulfate, nickel 
chloride, and nickel cathode. Indonesia confirmed the Panel's understanding that it does not satisfy dema nd 
with imports,  at the second meeting with the Panel.  
467 UNCTAD, Lessons from Indonesia's ban on nickel exports, Background document, (Exhibit IDN -23), 
p. 12. The Panel  notes that Exhibits IDN-68, IDN -69, and IDN -70 also report illegal or poorly regulated mining 
practices, but do not specify whether the nickel ore from those mines is exported.  
468 It could be argued as well that an export ban would have no effect on illegal mining as  those willing 
to operate outside the domestic legal framework  would be willing to continue to do so. The Panel notes, in this 
respect, that despite the export ban, Indonesia remained China's second -biggest nickel ore supplier in 2020 
according to Chinese customs data , when the export ban was already in place . See Reuters, "Update 1 – 
Indonesia Stays China's Second -Biggest Nickel Ore Supplier Despite Export Ban (January 2021)", available at 
https://www.reuters.com/article/china -economy -trade-nickel -idUSL1N2JV0FP , (Exhibit IDN -106). The Panel 
further  notes, however, that Indonesia's export data shows no exports of nickel ore to China in 2020 and close 
to zero in 2021. See BPS Export Data Indonesia, (Exhibit IDN -91), p. 1.  
469 See e.g.  Appellate  Body Report, US – Clove Cigarettes , paras.  113 and 115.  
470 Indonesia's first written submission, para.  177; second written submission, para.  128. See also 
UNCTAD, Lessons from Indonesia's ban on nickel exports, Background document, (Exhibit IDN -23), p. 10. WT/DS592/R  
BCI deleted , as indicated [[***]]  
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  that Indonesia has demonstrated that the export ban is a measure to se cure compliance with 
Article  96(c) within the meaning of Article  XX(d) of the GATT  1994. 
7.3.1.1.3.2   DPR 
Main arguments of the parties  
7.234.   Indonesia  contends that the DPR is " capable of contributing to securing compliance with 
Indonesia's sustainable mining and mineral r esource management requirements by promoting 
vertical integration in the supply chain ", which in turn " is critical to promoting sustainable mining 
practices ".471 According to Indonesia, "[t]he domestic processing requirement seeks to induce long -
term change s in the behaviour of market operators by fostering long -term supply arrangements 
between mining companies and smelters".472 Indonesia explains that "the domestic processing 
requirement curbs predatory mining practices and ensure[s] that all mining activities are properly 
regulated both on the supply and on the demand side" because "domestic smelters require that the 
nickel ore  that they purchased be mined in conformity with Indonesia's sustainable mining and 
mineral resource management requirements".473 
7.235.   Indonesia  further argues that the DPR is a preventive measure that was adopted after other 
past remedial measures, e.g. licensi ng requirements, environmental management and monitoring 
measures, increased enforcement through fines and sanctions, and clear and clean  (CnC)  
certification , were unsuccessful at achieving their objective of secur ing compliance with Indonesia's  
comprehensive policy framework for mining activities .474  
7.236.   Indonesia points to the explicit references to Law Nos. 4/2009 and 32/2009  in MEMR 
Regulation No. 25/2018 and MEMR Regulation No. 50/2018  to demonstrate a close relationship 
between the DPR and sustainable mining and mineral resource management requirements.475  
7.237.   The European  Union  argues that Indonesia has failed to demonstrate a link between the 
design of the DPR and securing compliance with Article  96(c).476 In the European  Union 's view, the 
DPR is designed  to increase the added value of Indonesia's exports.477 The European  Union  further 
argues that the references made in MEMR Regulation No.  25/2018 to Law Nos. 4/20 09 and 32/2009 
do not indicate that the measures at issue seek to secure compliance with the environmental 
provisions in such laws and regulations. In this respect, the European  Union  notes that the preamble 
of MEMR Regulation No. 25/2018 states that it is  enacted "in order to ensure the legal certainty and 
business certainty and to increase the effectiveness, efficiency and accountability in the 
implementation of the mining business activity and to encourage the development of minerals and 
coal businesses ". The European  Union  further notes that s ubparagraph (b) of the preamble refers to 
Article  127 of Law No . 4/2009 , which is not one of the provisions relied upon by Indonesia in the 
context of its defence under Article  XX(d) .478 
Analysis by the Panel  
7.238.   The Panel  now examines the  design of the DPR, including its content, structure, and expected 
operation  to determine whether the DPR is not incapable of securing compliance with Article  96(c).  
7.239.   The DPR is set out in Article  103(1) of Law No.  4/2009 , and implemen ted through Article  17 
of MEMR Regulation No.  25/2018, and Article  66 of MEMR Regulation No.  7/2020. Article  103(1) of 
Law No.  4/2009 sets out the general principle that IUP and IUPK holders must conduct mineral 
processing and refining in Indonesia. This s ame principle is contained in Article  17 of MEMR 
Regulation No.  25/2018 and Article  66 of MEMR Regulation No.  7/2020 in the context of sales 
 
471 Indonesia's first written submission, para.  178. 
472 Indonesia's first written submission, para.  178. 
473 Indonesia's first written submission, para.  178. 
474 Indonesia's first written submission, para.  145. See also Indonesia's first written submission, 
para. 144; and second written submission, paras.  171-172.  
475 Indonesia's first written submission, para.  179. 
476 European  Union 's second written submission, para.  243. 
477 European  Union 's second written submission, para.  175. See also European  Union's second written 
submission, para.  219. 
478 European  Union 's second written submission, para.  245. WT/DS592/R  
BCI deleted, as indicated [[***]]  
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  abroad. Article  17 establishes that holders of IUP for Production Operation, IUPK  for Production 
Operation, and IUP for Production Operation specifically for the processing and/or purification of 
metallic Mineral, nonmetallic Mineral, or rocks must " conduct [] the Enhancement of Added Values 
through the activities of Processing and/or Purification in accordance with the  minimum limits of 
Processing and/or Purification as included in Appendix I, Appendix II, and Appendix III " before 
exportation. Similarly, Article  66 of MEMR Regulation No.  7/2020 prohibits IUP and IUPK holders 
from selling abroad products resulting from m ining without having carried out processing and 
refining in Indonesia first.  
7.240.   MEMR Regulation No.  25/2018 establishes a two -fold objective in its preamble: (i)  "ensure 
the legal certainty and business certainty and to increase effectiveness, efficiency and accountability 
in the implementation of the mining business activity and to encourage the development of mineral 
and coal businesses"479, and (ii)  implement several  listed provisions, none of which is  
Article  96(c).480 Neither the preamble nor the text of Ar ticle 17 nor Appendix  I of MEMR Regulation 
No. 25/2018 establish a connection with sustainable mining or resource conservation principles.  
7.241.   The preamble of Law No.  4/2009 does refer to the environmental sustainability of mining by 
stating that creation of businesses to manage and exploit mineral and coal potential must be done 
in a "self -reliant, reliable, transparent, effective, efficient and environment -oriented way " to "ensure 
sustainable national development". It also refers to the objective of managing mineral resources to 
give "real added value" to the national economy.481 
7.242.   As regards MEMR Regulation No.  7/2020 on procedures for the granting of areas, licensing, 
and reporting in relation to mineral and coal -mining business activities, it shares with MEMR 
Regulation No.  25/2018 the objective of ensuring legal and business certainty and to increase 
effectiveness, efficiency and accountability in the implementation of the mining business activity and 
to encourage the development of mineral and coal businesses. This Regulation amends MEMR 
Regulation No.  11/2018 and implements several  provisions in Law No.  4/2009, Government 
Regulation No.  22/2010, and Government Regulati on No.  23/2010.482 
7.243.   Neither Article  103 of Law No.  4/2009 nor the relevant provisions in MEMR Regulation 
No. 25/2018 and MEMR Regulation No.  7/2020 show any relevant relationship with Article  96(c) or, 
more generally, with the sustainability of mining activi ties. Rather, these legal instruments pursue 
economic objectives, as mentioned in their respective preambles, such as developing mineral 
businesses and generating added value in Indonesia. This finds support in public statements by the 
President of Indones ia and high -level government officials483, and in national industrial plans such 
as the Medium -Term National Development Plan (RPJMN) 2020 –2024, the National Industry 
Development Master Plan 2015 -2035 (RIPIN), and National Industrial Policy 2015 -2019, which  
prioritize the development of upstream and intermediate industry based on natural resources and 
the increase of added value of the natural resources in mineral processing based upstream 
industry.484  
7.244.   This economic dimension can also be deduced from the tex t of the provisions through which 
the DPR is developed, more specifically Articles 16(4) and (5) of MEMR Regulation No.  25/2018 . 
 
479 MEMR Regulation No.  25/2018, (Exhibit EU -9(b)), preamble , para.  a). 
480 These provisions are Article  127 of Law No.  4/2009, Articles 43, 84(4), 85(4), 88, 91, 92(3), 96, 99, 
109, 112C point 5, and 112 of Government Regulation No.  23/2010, and Article  15 of Government Regulation 
No. 9/2012. See MEMR Regulation No.  25/2018, (Exhibit EU -9(b)), preamble , para.  b). 
481 Law No.  4/2009, (Exhibit EU -1(b)), preamble , paras.  b) and c). 
482 These provisions are Article  127 of Law No.  4/2009, Articles 21(4) and 38(4) of Government 
Regulation No.  22/2010, and Articles 19, 27(2), 41, 44(5), 61, 68, 83, and 105 of Government Regulation 
No. 23/2010.  
483 See e.g. The Indonesian Go vernment 's Arguments to WTO Regarding the Ban on Nickel Exports, 
5 December 2019, (Exhibit EU -20); Transcript of President Joko  Widodo i's Speech (translated) at the 
groundbreaking ceremony of PT Freeport Indonesia 's (PTFI) new copper smelter, at the Gresik  Special 
Economic Zone, East Java , 12 October  2021 ( Exhibit EU-21); Remarks of President of the Republic of Indonesia 
at the Opening Inauguration of the 2021 National Coordination Meeting and Investment Service Award, 
24 November  2021, (Exhibit EU -22); President Joko Widodo Inaugurates  Nickel Smelter in SE Sulawesi , 
27 December  2021, (Exhibit EU-23); and  President Joko Widodo openly talks about coal exports and the next 
targets , 10 January  2022, (Exhibit EU-24).  
484 Medium -Term National Development Plan (RPJMN) 2020 –2024, (Exhibit EU -16(rev)); Master Plan of 
National Industry Development 2015 -2035, (Exhibit EU -17(rev)); and Presidential Regulation No.  2/2018 on 
the National Industry Policy 2015 -2019, (Exhibit EU -18(rev)). WT/DS592/R  
BCI deleted , as indicated [[***]]  
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  These provisions  establish that  IUP and IUPK holders for Production Operation can comply with the 
requirement to process and pu rify nickel and other minerals domestically by cooperating with other 
mining licence holders . In this respect, the Panel  agrees with Indonesia that the DPR may promote  
vertical integration in the supply chain , as demonstrated by the fact that, as of September 2021, 
"integrated smelters with the nickel ore mines have developed in [[***]] IUP-KK licenses".485 The 
issue is whether such integration between mining companies and smelters "promotes  sustainable 
mining practices ", as Indonesia alleges486 and, more particularly, whether this results in the DPR not 
being incapable of securing compliance with Article  96(c).  
7.245.   The Panel  noted above that measures can have multiple objectives  and effects. The fact that 
the legal instruments that implement the DPR do not explicitly refer to an environmental element is 
not a reason to dismiss the possibility that the DPR may have a positive impact on the sustainability 
of mining activities in Indonesi a. In this regard, the Panel  refers to  Indonesia's argument that the 
DPR, by generating partnerships between the different actors of the mining supply chain, namely 
mining businesses and smelters, thereby creating vertical integration, improves mining practices 
and facilitates enforcemen t of environmental regulations.487 The Panel  is of the view that vertical 
integration may indeed facilitate verification and enforcement of mining regulations, including those 
dealing with sustainability and the environment, because the Indonesian authorities  may more easily 
keep track of the conduct of the operators involved in the supply  chain.  
7.246.   Evidence on the record such as s tatistics by the Criminal Investigation Agency (Exhibit IDN -
110(BCI)) , and the s worn expert testimon ies of [[***]] (Exhibit  IDN-111(BCI))  and of a mining 
officer at a ma jor Indonesian mining concern  (Exhibit IDN -113(BCI))  indicate that r egulatory 
enforcement by Indonesian authorities has improved since the entry into force of the DPR . It is not 
clear, however, whether such improvement can be attributed to the DPR or to ot her factors taking 
place simultaneously, such as the transfer from the regional and provincial governments to the 
central government of the responsibility for mineral reporting mechanisms pursuant to Law 
No. 3/2020.488 The fact  that it could be attributed t o various factors, including the DPR, leads the 
Panel to conclude  that it cannot be ruled out that the DPR, because of the vertical integration it 
encourages, facilitates enforcement of environmental regulations and, consequently, promotes 
sustainable mini ng practices in line with the principles of good mining techniques.  
7.247.   In light of the above, the Panel  finds that the DPR is not incapable of fostering integration 
between mining companies and smelters that can improve the ability to enforce environmental 
mining regulations. Indonesia , therefore,  has demonstrated that the DPR is a measure designed to 
secure compliance with Article  96(c) within the meaning of Article  XX(d) of the GATT  1994. 
7.3.1.2   Whether the measures at issue are necessary to secure such compliance  
7.248.   The Panel  has found that the export ban and the DPR are measures designed to secure 
compliance with Article  96(c) of Law No.  4/2009. The Panel  will now continue with the analysis under 
Article  XX(d) by assessing whether the measures at issue are necessary to secure such compliance.  
7.249.   An assessment of necessity under Article  XX of the GATT  1994 "involves 'weighing and 
balancing' a number of distinc t factors relating both to the measure sought to be justified as 
'necessary' and to possible alternative measures that may be reasonably available to the responding 
Member to achieve its desired objective" .489 The Panel shall start by assess ing the relative  
importance of the interests or values furthered by the challenged measure. Then the Panel will 
examine other relevant factors , which will usually include the trade restrictiveness of the challenged 
measure  and the contribution made by the  challenged measu re to the realization of the end pursued 
(i.e. securing compliance with specific rules, obligations, or requirements under the relevant 
 
485 Indonesia's fi rst written submission, para.  178, and the Maryono Report, (Exhibit IDN -18 (BCI) ), 
p. 26.  
486 Indonesia's first written submission, para.  178. 
487 See para.  7.234.   above. 
488 Indonesia's first written submission, para.  109. The Panel notes that Indonesia states that 
"purchasing nickel ore mined in conformity with Indonesia's sustainable mining and mineral resource 
management requirements is not something that domestic sm elters do out of goodwill. Compliance is not 
optional. It is required under penalty of law ". See Indonesia's response to Panel question No.  70(a). 
489 Appellate  Body Report, China  – Publications and Audiovisual Products , para.  239. WT/DS592/R  
BCI deleted, as indicated [[***]]  
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  provisions of the relevant laws or regulations that are not GATT  inconsistent ).490 Once the Panel has 
identified the fact ors to be weighed and balanced, the Panel will compare the challenged measures 
with proposed possible alternatives.491  
7.3.1.2.1   Relative importance of the common interests or values  
7.250.   The Panel  will start by looking at the  values that Article  96(c) is intended to protect.  The 
Panel  recalls that panels and the Appellate  Body have found in several  disputes that the more vital 
or important t hose values are, the easier it will be to accept as necessary a measure designed to 
secure compliance with the laws a nd regulations intended to protect those values .492 
7.3.1.2.1.1   Main arguments of the parties  
7.251.   Indonesia  states that " the protection of the environment and the conservation of Indonesia's 
mineral resources are interests or values of the highest importance".493 Indonesia  submits that 
sustainable mining requirements such as Article  96(c) ensure that "mining activities in Indonesia are 
conducted in a manner that preserves and protects the environment because they are designed to 
mitigate environmental impacts inherent in mi ning activities, such as deforestation, land 
disturbance, water pollution and waste management".494 Indonesia states that these requirements 
"protect not only native forests and the environment, but also the livelihoods of indigenous people 
that reside in m ining areas".495  
7.252.   The European  Union  does not address the relative importance of these values; it questions 
instead whether the challenged measures pursue the objective of securing compliance with rules on 
environmental protection and the conservation of na tural resources . The European  Union  considers 
that Indonesia has failed to show that the export ban and the DPR pursue the objective of securing 
compliance with rules on environmental protection and the conservation of natural resources.496  
7.3.1.2.1.2   Analysis by the  Panel  
7.253.   Indonesia has addressed in detail in its submissions the environmental impact of mining 
activities in general as well as in Indonesia in light of its specificities, namely its earthquake -prone 
territory and high rainfall.497 As referred to in the descriptive part of this report, the Panel  finds 
evidence on the record reporting, inter alia , the loss of forest and biodiversity as a result of strip 
mining498; land disturbance499; impact on air quality, vibration and noise500; sea shore pollution501; 
and challenges relating to waste management.502  
 
490 Appellate  Body Report, China  – Publications and Audiovisual Products , para.  240 (referring to 
Appellate  Body Report, US – Gambling , paras.  306-308). 
491 Appellate  Body Report, China – Publications and Audiovisual Products , para.  240. 
492 Appellate  Body Report, Korea – Various Measures on Beef , para.  162. See Panel  Report s, EC – Seal 
Products , para.  7.632, and Appellate  Body Reports, EC – Seal Products , para.  5.203.  
493 Indonesia's first written submission, para.  187. 
494 Indonesia's first written submission, para.  185. 
495 Indonesia's first written submission, para.  185. 
496 European  Union 's second written submission, para.  248. 
497 AEER, Supply of Nickel Battery Industry from Indonesia and Ecological Social Issues, Action for 
Ecology and Emancipation of People, December 2020,  (Exhibit IDN -64), p. 54; and Clean Technica, Image of 
Indonesia at "Electric Vehicles: The Dirty Nickel Problem", (Exhibit  IDN-66), available at: 
https://cleantec hnica.com/2020/09/27/electric -vehicles -the-dirty-nickel -problem/  (last accessed 
30 August  2021) . See also the following exhibits Indonesia submitted on the environmental impact of mining: 
IDN-19, IDN -23, IDN -62, IDN -63, IDN -65, IDN -67, IDN -69, and IDN -70.  
498 A. van der Ent, A.J.M. Baker, M.M.J. van Balgooy, A. Tjoa, "Ultramafic nickel laterites in Indonesia 
(Sulawesi, Halmahera): Mining, nickel hyperaccumulators and opportunities for phytomining", Journal of 
Geochemical Exploration, Vol. 128 (2013), pp. 72 -79, (Exhibit IDN -4), p. 6.  
499 Sayoga Gautama Supplemental Expert Report, 17  March  2022, (Exhibit IDN -109). 
500 Sayoga Gautama Report , (Exhibit IDN -15), p. 3.  
501 WALHI, Study report on Environmental Conditions around Coastal Sea near the Mining Area due to 
the Ni ckel Industry in Morowali regency. Central Sulawesi, Kolaka and North Konawe Regencies, Southeast 
Sulawesi (2021), (Exhibit IDN -68). 
502 IEA, Special Report on the Role of Critical Minerals in Clean Energy Transition (2021), 
(Exhibit  IDN-16), p. 40.  WT/DS592/R  
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  7.254.   Given the overall understanding among WTO Members of the importance of the protection 
of the environment503 and, more specifically, the environmental impact of mining activities in 
Indon esia, the Panel concludes that the protection of the environment is a value  of high importance 
for Indonesia . 
7.3.1.2.2   Trade restrictiveness of the measures at issue  
7.255.   Before the Panel  turns to the parties' arguments on the trade restrictiveness of the measures 
at issue, the Panel  recalls that " [a] measure with a relatively slight impact upon imported products 
might more easily be considered as 'necessary ' than a measure with intense or broader restrictive 
effects ".504  
7.3.1.2.2.1   Main arguments of the parties  
7.256.   Indonesia  acknowle dges that the export prohibition is highly trade restrictive insofar as it 
prohibits the exportation of nickel ore.505 It notes, however, that past panels and the Appellate  Body 
have deemed necessary highly trade -restrictive measures "where they [were] 'apt  to make a 
material contribution' to the achievement of their objective" .506 With respect to the DPR, Indonesia 
states that "questions still remain as to whether the domestic processing requirement entails limiting 
effects on trade that are separate and dis tinct from the export prohibition itself ".507  
7.257.   The European  Union  submits that the export ban reflects the greatest degree of trade 
restrictiveness, which results in a greater burden on Indonesia to demonstrate that the measure 
contributes to securing compliance with the relevant laws and regulations.508 It further state s that 
the DPR "has inherent limiting effects" on nickel ore exports.509 
7.3.1.2.2.2   Analysis by the Panel  
7.258.   The Panel  has found above that the European  Union  has demonstrated, and Indonesia has 
admitted, that Indonesia imposes a prohibition on exports of nickel ore inconsistent with Article  XI:1 
of the GATT  1994 that is currently implemented through the operation of MEMR Regulation 
No. 11/2019 and MOT Regulation No.  96/2019 . The Panel notes  that a total prohibition on trade 
(whether exports or imports)  is the most trade -restrictive measure that could be applied.510 
7.259.   The Panel  has also found that the European  Union  has demonstrated , and Indonesia has not 
successfully rebutted,  that the DPR is a restriction on the sale for export of nickel ore whose design, 
architecture, and revealing structure establish that by its very nature it has a limiting effect on 
exports  inconsistent with Article  XI:1 of the GATT  1994. If the DPR is complied with there will be no 
nickel ore to export. The Panel,  however,  does not find that the DPR is as restrictive as a total 
prohibition on exports because , there were certain periods of time where mines could export low -
 
503 This value has been explicitly accepted by WTO Members in the very text of the WTO  Agreement s. 
The Preamble of the WTO  Agreement  notes the goal of protection and preservation of the environment and 
sustainable development. Article  XX(g) of the GATT  1994 provide s a justification for GATT -inconsistent 
measures relating to the conservation of exhaustible natural resources. Article  8.2(c) of the SCM  Agreement  
provides an exception for environmental subsidies. Moreover, in one of its first disputes the Appellate  Body 
stated as follows: "We have not decided [in this appeal] that the protection and preservation of the 
environment is of no significance to the Members of the WTO. Clearly, it is. … And we have not decided [in this 
appeal] that sovereign states should not a ct together bilaterally, plurilaterally or multilaterally, either within 
the WTO or in other international fora, to protect endangered species or to otherwise protect the environment. 
Clearly, they should and do." Appellate  Body Report, US – Shrimp , para.  185. 
504 Appellate  Body Report, Korea – Various Measures on Beef , para.  163. 
505 Indonesia's first written submission, para.  188. 
506 Indonesia's first written submission, para.  188. 
507 Indonesia's first written submission, para.  222. 
508 European  Union 's second written submission, para.  253. 
509 European  Union 's second written submission, para.  254. 
510 See e.g. Appellate  Body Report, US – Shrimp , para.  171 ("an import prohibition is, ordinar ily, the 
heaviest 'weapon' in a Member's armoury of trade measures".). See also Panel  Report , Brazil – Retreaded 
Tyres , para. 7.114 (finding that "Brazil's measure is as trade -restrictive as can be, as far as retreaded tyres 
from non -MERCOSUR countries are  concerned, since it aims to halt completely their entry into Brazil" .) WT/DS592/R  
BCI deleted, as indicated [[***]]  
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  grade ore upon approval of the Minister of Trade if certain conditions were met. The Panel finds, 
there fore, that the DPR is highly trade restrictive.  
7.3.1.2.3   The contribution of the measures at issue  
7.260.   The concept of necessity under Article  XX of the GATT  1994 has evolved over time. In the 
first Article  XX disputes the concept of necessity was "located significantly  closer to … 'indispensable' 
than to … simply 'making a contribution to' ".511 However, the standard applied in more recent 
disputes has evolved to consider that a measure can be found to be necessary if it is "apt to produce 
a material contribution to the a chievement of its objective".512 The Appellate  Body has also stated 
that, "[t]he greater the contribution, the more easily a measure might be considered to be 
'necessary' ".513 
7.261.   A measure contributes to achieving the objective of the Member  "when there is a genuine 
relationship of ends and means between the objective pursued and the measure at issue ".514 The 
Appellate  Body, has explained that the contribution of the measure at issue towards securing 
compliance with the relevant law or regulation must be "mater ial". The definition of "material" is 
"[h]aving significance or relevance"515, "important or having an important effect "516.517 Thus, it is 
not any contribution minimally  or marginally  relevant that qualifies so as to make the measure at 
issue necessary withi n the meaning of Article  XX(d). Whether the contribution is sufficient to be 
considered material within the meaning of Article  XX can only be determined on a case -by-case 
basis, in light of the specific circumstances of each dispute . The methodology used to assess a 
measure 's contribution  can be of a quantitative or qualitative nature, depending on " the nature, 
quantity, and quality of evidence existing at the time the analysis is made ".518 
7.262.    A party may make the required demonstration by resorting to evidenc e pertaining to the 
past or the present, that establishes that the measure at issue makes a material contribution to the 
objectives pursued.519 The Appellate  Body clarified, however, that a panel is not bound to find that 
a measure does not make a contribution to the objective pursued merely because such contribution 
is not "immediately observable" or because, "[i]n the short -term, it may prove difficult to isolate the 
contribution [made by] one specific measure from those attributable to the other measures that are 
part of the same comprehensive policy".520 The Appellate  Body, therefore,  noted that a panel may 
conclude that a measure is necessary if the responding Member demonstrates that it "is apt to 
produce a material contribution to the achievem ent of its objective" .521 Although this may seem to 
be a more relaxed standard than what had been applied in the past, it is not without rigour and a 
demonstration cannot be made by simple assertions. The Appellate  Body clarified that a 
demonstration that a  measure is apt to make a material contribution "could consist of quantitative 
projections in the future, or qualitative reasoning based on a set of hypotheses that are tested and 
supported by sufficient evidence ".522 This requires that a respondent provide s sufficient evidence 
that proves the contribution that the measure makes or may be able to make. Mere speculation or 
logical presumptions would not suffice.  
7.263.   The Panel's understanding of a measure's ability to make a material contribution implies that 
the measure at issue must be in a position to contribute to the realization of the objective ; the 
 
511 Appellate  Body Report, Korea – Various Measures on Beef , para.  161. 
512 Appellate  Body Report, Brazil – Retreaded Tyres , para.  151. 
513 Appellate  Body Report, Korea – Various Measures on Beef , para.  163. 
514 Appellate  Body Report, Brazil – Retreaded Tyres , para.  145. 
515 Online Oxford English Dictionary, Material available at 
https://www.oed.com/vi ew/Entry/114923?rskey=NmRYAB&result=1#eid  (last accessed 26  August  2022).   
516 Online Cambridge English Dictionary, Material available at 
https://dictionary.cambridge.org/dictionary/english/material  (last accessed 26 August 2022).  
517 As noted by the  panel in Colombia – Textiles , "[t]he expression 'apt to produce a mate rial 
contribution' in the original English language text of the Appellate  Body report was translated into Spanish as 
'adecuada para hacer una contribución importante' ", Colombia – Textiles , fn 485. The translation into French 
also refers to " à même d'appor ter une contribution importante ". See Panel  Report . 
518 Appellate  Body Report, Brazil – Retreaded Tyres , para.  145. 
519 Appellate  Body Report, Brazil – Retreaded Tyres, para. 151. See also, Appellate  Body Report, 
China  – Publications and Audiovisual Products , para.  252. 
520 Appellate  Body Report, China – Publications and Audiovisual Products , paras.  252-253 (referring to 
Appellate  Body Report, Brazil – Retreaded Tyres , para.  151).  
521 Appellate  Body Report, Brazil – Retreaded Tyres , para.  151. 
522 Appellate  Body Report, Brazil – Retreaded Tyres, para. 151. WT/DS592/R  
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  contribution of the measure should not be reduced to a hypothetical contribution in implausible or 
improbable factual scenarios . There should be some certainty in  the ability of the measure to 
contribute towards securing compliance with the relevant law or regulation.  
7.264.   The Panel  further recalls that a measure contributes to the achievement of the objective 
when there is a genuine relationship of ends and means betwe en the objective pursued and the 
measure at issue. Past panels and the Appellate  Body have emphasized the "latitude" enjoyed by 
panels "in designing the appropriate methodology to use and deciding how to structure or organize 
the analysis of the contributi on of the measure at issue to the realization of the ends pursued by 
it".523  
7.265.   The Panel  is of the view that an analysis of the design of the measures at issue, including its 
structure and operation, can shed light on the existence or not of a genuine relati onship of ends and 
means . For that purpose, the Panel  will refer to its analysis above on whether the measures at issue 
are designed to secure compliance with the relevant provisions Indonesia has identified. The Panel  
notes nonetheless that even if that p art of the analysis may prove useful when assessing the 
contribution of the measures at issue under the necessity test, the "designed to secure compliance" 
element and the contribution element are conceptually distinct; otherwise,  there would not be two 
separate steps to the analysis . The former element involves an assessment of whether the measure 
is not incapable of ensuring compliance with the relevant law or regulation whereas the latter 
element requires that a panel determine whether the measure at iss ue is "apt to produce a material 
contribution to the achievement of its objective", i.e. securing compliance with the relevant law or 
regulation.524 As noted by the Appellate  Body, the element of the test focusing on whether the 
measures are designed to sec ure compliance is less demanding than the contribution element. This 
is so because in the Appellate  Body's view "[a] panel must not … structure its analysis of the ['design' 
step] in such a way as to lead it to truncate its analysis prematurely and thereby  foreclose 
consideration of crucial aspects of the respondent's defence relating to the 'necessity' analysis."525  
7.266.   After having made these clarifications on its understanding of contribution under the 
necessity test, the Panel  now assess es the contribution of each of the measures at issue towards 
securing compliance with Article  96(c) of Law No.  4/2009.  
7.3.1.2.3.1   Export ban  
Main arguments of the parties and third parties  
7.267.   Indonesia  argues that the export prohibition is "a pt to make a material contribu tion to 
securing compliance with " the sustainable mining and mineral resource management 
requirements526 because it reduces the amount of nickel extracted. More specifically, it eliminates 
export -driven nickel extraction and, as a result, it mitigates the n egative environmental impact and 
the risk of nickel resource depletion.527 
7.268.   Indonesia contends that there is no requirement under Article  XX(d) to demonstrate that 
the challenged measures are "the 'sole' or 'most substantial' cause of any observed positive e ffect 
in relation to the objective of the challenged measures" . This is all the more so  in the present case 
given that the challenged measures form part of a comprehensive policy framework "with multiple 
elements interacting synergistically to achieve a po licy objective" .528 
7.269.   The European  Union  submits that Indonesia has failed  to demonstrate that a prohibition on 
the exportation of nickel ore contributes to securing the enforcement of environmental standards 
and the rules on conservation of natural resources.529  
7.270.   The European  Union  argues that Indonesia has not demonstrated that  adverse 
environmental effects result exclusively from nickel mining. Therefore, these adverse effects on 
 
523 Appellate  Body Report, Brazil – Retreaded Tyres , para.  145. 
524 Appellate  Body Report, Brazil – Retreaded Tyres , para.  151. 
525 Appellate  Body Report, Argentina – Financial Services , para.  6.203.  
526 Indonesia's first written submission, para.  194. 
527 Indonesia's first written submission, paras.  212-213. 
528 Indonesia's response to Panel question No.  122. 
529 European  Union 's second written submission, paras.  256-257. WT/DS592/R  
BCI deleted, as indicated [[***]]  
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  Indonesia's environment are not " relevant to determining the potential contribution of the measures 
at issue " given that Indonesia has submitted an al ternative defence under subparagraph (d), and 
not under subparagraphs (b) or (g), of Article  XX.530 
7.271.   The European  Union  further argues that Indonesia has not substantiated its claim that the 
extraction of nickel ore for exports, and not the extraction of nic kel ore per se , results in adverse 
environmental effects in Indonesia. According to the European  Union , Indonesia has not 
demonstrated that a shift from exports of both nickel ore and processed nickel to just exports of 
processed nickel has " lead to a rise  in environmental standards ".531 
7.272.   In the European  Union 's view, the evidence Indonesia submits makes it clear that the 
measures at issue are not apt to make a material contribution to "securing the implementation of 
higher environmental standards or the cons ervation of nickel reserves ".532 In particular, the 
European  Union  notes that Indonesia submits evidence on adverse marine environmental effects 
that post-dates the adoption of the measures  at issue and suggests that environmental problems 
continue to exist after the adoption of the measures.533 The European  Union  also notes that 
Indonesia does not submit evidence on the number of enforcement proceedings initiated before and 
after the adoption of the measu res at issue to support its argument that the measures contribute to 
securing compliance because the ultimate purchasers of the ore are necessarily within Indonesia 's 
jurisdiction .534  
7.273.   Canada and Japan note that the empirical demonstration of an actual cont ribution is not 
always required to establish justification under Article  XX(d) of the GATT  1994. Both note , however,  
that if such evidence exists this makes it more likely that the measure will satisfy the contribution 
factor of the necessity analysis. Jap an comments  that requiring a certain minimum level of specificity 
in describing the contribution is necessary to avoid circumvention. Both Japan and Canada refer to 
looking at the design, structure, and operation of the measure and whether the measure is c apable 
of securing compliance.535 For its part, t he United  States  submits that the Panel should examine 
whether Indonesia has shown that the challenged measures are indispensable, vital, essential, and 
requisite for the objective of securing compliance with  the underlying laws or regulations.536 
Analysis by the Panel  
7.274.   The Panel  will conduct its assessment of the contribution of the export ban to securing 
compliance with Article  96(c) of Law No.  4/2009 by looking at the design of the export ban, including 
its structure and expected operation. The Panel  conducted a similar assessment under the "designed 
to secure compliance" element to which the Panel  will refer in this section. As mentioned above, 
these two parts of the analysis are distinct and m ust therefore be conducted in a related but 
independent manner.  
7.275.   The Panel  found above that the legal instruments that implement the export ban, i.e. 
Article  3 and Appendix  IV of MEMR Regulation No.  96/2019 and Article  1(2) of MEMR Regulation 
No. 11/2019, do not contain any explicit mention of Article  96(c) or to the accomplishment of 
sustainable mining objectives. The Panel  further acknowledged that measures can have a multiplicity 
of objectives and  that there was a certain degree of connection between the  export ban and 
Article  96(c). The Panel , therefore, found that it could not be ruled out that the export ban had a 
positive impact on the sustainability of mining activities in Indonesia in that it may result in a 
decrease in the extraction of nickel ore , including ore from illegal and poorly regulated sources . The 
Panel  noted, however, that evidence on the record showed that the decrease in the extraction rate 
did not correspond with the level of exports prior to the ban , and that  domestic demand for nick el 
ore was expected to expand as a result of the development of the smelter industry in Indonesia . In 
this regard the Panel  observed that the resource conservation concern expressed by Indonesia did 
 
530 European  Union 's second written subm ission, paras.  262-263. 
531 European  Union 's second written submission, para.  269. 
532 European  Union 's second written submission, para.  270. 
533 European  Union 's second written submission, para.  271 (referring to Exhibit IDN -68). 
534 European  Union 's second writt en submission, para.  272. 
535 Canada and Japan's third -party responses to Panel question No.  8. 
536 United  States ' third -party response to Panel question No.  8. WT/DS592/R  
BCI deleted , as indicated [[***]]  
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  not seem to be aligned with its plans to expand the smelt er industry and develop an EV battery 
industry in the near future.537 
7.276.   The Panel  sees no reason to disagree with Indonesia that Article  96(c) sets out a sustainable 
mining requirement. This does not mean, however, that the Panel  will examine the contribution  of 
the export ban to improving any environmental objective set out in Law No.  4/2009. As the Panel  is 
examining an alternative defence under subparagraph (d) of Article  XX and not another of the 
subparagraphs, what the Panel  must determine is whether the export ban is apt to produce a 
material contribution towards securing compliance with Article  96(c), and not whether it is apt to 
produce a material contribution towards achieving the objectives pursued by Article  96(c).  
7.277.   Indonesia argues that the export b an contributes to securing compliance with Article  96(c) 
by reducing nickel extraction, particularly export -driven extraction from illegal or poorly regulated 
sources, which results in turn in less damage to the environment and a slower pace of resource 
depletion . As explained above, the Panel  finds data on the record that show that the total nickel 
production in 2020 decreased by 13.6% whereas exports of nickel ore represented almost 50% of 
Indonesia's total production .538 Thus, the Panel  observes that nickel resources that in the past would 
have been exported are being redirected towards domestic consumption, which is in need of more 
nickel resources due to the increase in the number of nickel smelters in operation.539 Table  4.1 of 
Government Regulation No. 14 of 2015 on the RIPIN contains a projection of the natural resources 
needs for the Indonesian industry. The demand  for nickel is expected to increase by over 20% every 
five years from 2015 to 2035 (11  million  tons/year in the 2015 -2019 period, 14  million tons/year in 
the 2020 -2024 period; and 17  million  tons/year in the 2025 -2035 period).540  
7.278.   The RIPIN sets out a clear strategy to develop Indonesia's smelter industry as a first step 
towards establishing an EV battery industry in the country. Indonesia' s strategy is based on an 
increase in nickel production to feed domestic smelters, which are expected to exponentially increase 
in the near future. Table  4.1 of Government Regulation No.  14 of 2015 on the RIPIN contains the 
projection of the needs of natur al resources for the Indonesian industry. The raw material needs of 
nickel are expected to increase by over 20% every five years from 2015 to 2035 (11  million  
tons/year in the 2015 -2019 period, 14  million  tons/year in the 2020 -2024 period, and 17  million  
tons/year in the 2025 -2035 period).541  
7.279.   This context of an increase in the use of nickel resources domestically to satisfy the 
increasing needs of Indonesian smelters does not support Indonesia's argument that the export ban 
will contribute to securing compl iance with Article  96(c) by reducing nickel extraction. This is so 
because, based on the evidence before us, such a reduction will not take place in the near future if 
the Indonesian authorities' plan to expand the smelter industry develops as expected. Fu rthermore, 
the Panel  notes that Indonesia relies on the introduction of HPAL processing technology to increase 
its nickel reserves  by taking into account low -grade nickel ore in its reserve estimates. Low -grade 
nickel ore is currently considered waste or o verburden given the lack of adequate processing 
technology.542  
7.280.   Additionally, Indonesia argues that there has been a reduction in land disturbance in  
Sulawesi as a result of the export ban, which has improved the environmental situation there. 
Indonesia provides to the Panel the Gautama Supplemental Expert Report (Exhibit IDN -109).  
According to the expert Mr Gautama land disturbance decreased between 2017 and 2 018 even 
though nickel production increased during that period. The report concludes that the export ban 
between 2014 and 2017 "significantly contributed to reducing the non -compliant miners and 
promoted more sustainable mining practice ".543 The Panel  ackno wledges that the report indicates 
there was a decrease in land disturbance in Sulawesi after the imposition of the export ban in 2014. 
 
537 See paras.  7.223 -7.233  above.  
538 See para.  7.227  above . 
539 MEMR, Indonesian Mining Guidance (2020), (Exhibit IDN -1), Picture 9.6 : Smelter Growth and 
Projection in Indonesia . 
540 Government Regulation No.  14 of 2015, Master Plan of National Industry Development 2015 -2035, 
(Exhibit EU -17 (rev )), pp. 52 -53. 
541 Government Regulation No.  14 of 2015 on the RIPIN, (Exhibit EU -17(rev)) .  
542 Indonesia's first written submission, para.  118 referring to Maryono Report, ( Exhibit IDN -18(BCI)), 
p. 25. See also Indonesia's first written submission, para.  129, Indonesia's second written submission, 
para. 97, and Indonesia's response to Panel question No. 38.  
543 Sayoga Gautama Supplemental Expert Report, 17  March  2022, (Exhibit IDN-109), p . 3. WT/DS592/R  
BCI deleted, as indicated [[***]]  
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  This does not necessarily translate into a causal relationship between the former and the latter. 
Indeed, the report conc ludes that the data suggests that the export ban resulted in predatory mining 
practices being replaced by sustainable ones but  does not provide analysis of the root causes of the 
shift in behaviour. For instance, the report does not provide analysis of the  years between 2014 and 
2017. Nor does the report include data for 2019 and 2020, which would show the potential effects 
of the re -imposition of a total export ban via the 2019 regulations or projections of what is expected 
to happen if the export ban rema ins in place. The Panel  acknowledges that causal relationships may 
not always be easy to prove, especially as regards effects that take time to materialize. While this 
type of information may be a useful indicator, the Panel  considers that a mere correlati on without 
further analysis of the root causes is not sufficient for Indonesia to satisfy its burden.  
7.281.   Indonesia's arguments revolve around the link between exports of nickel and predatory 
mining practices. Indonesia argues that poorly regulated and illega l mining is export -oriented 
because domestic smelters only buy nickel ore that has been extracted in accordance with the 
relevant laws and regulations.544 Indonesia states that " the entirety  of nickel ore exports  between 
2006 and 2013 was sourced from minin g companies which were either subject to limited or no 
oversight in respect of regulatory compliance ( … 'poorly regulated ' mining companies), or were 
exporting nickel ore that was not in conformity with the relevant regulatory requirements (i.e. 'illegal ' 
mining) ".545 When examining whether the export ban was designed to secure compliance with 
Article  96(c), the Panel  did not rule out that an export ban could lead to a reduction of nickel 
production that may, in turn, result in a reduction in the mining acti vity, including poorly regulated 
and illegal activities. However, Indonesia fails to provide the Panel  with evidence relating to the 
magnitude of such predatory mining practices and their share of total exports before and after the 
entry into force of the export ban.546 Therefore, the Panel  is not in a position to conclude, considered 
along with additional evidence and arguments, that the export ban is apt to produce a material 
contribution to securing compliance with Article  96(c) by diminishing predatory mining practices.  
7.282.   As regards the improvement of regulatory enforcement, Indonesia argues that 
Exhibits  IDN-110(BCI), IDN -111(BCI), and IDN -113(BCI) demonstrate that the export ban 
contributes to the improvement of regulatory  enforcement. These three exhibits each present 
information on criminal enforcement matters related to nickel mining in recent years. Indonesia 
asserts that Exhibit IDN -110(BCI) is a summary of nickel criminal cases handled by the regional 
police in Sulawe si and Maluku between 2017 and 2022. This summary shows  a significant increase 
in criminal cases brought by the government after the introduction of the export prohibition.547  
Indonesia also provides an expert affidavit from [[***]] dated 15  March  2022 that it argues 
corroborates the data from Sulawesi and Maluku.  In this affidavit   [[***]], a law enforcement official  
in the field of natural resources, attests to an increase in criminal enforcement against illegal nickel 
mining.548 [[***]] also testifies tha t in his personal opinion  the export prohibition on nickel ore has 
positively impacted law enforcement efforts insofar as mining is regulated both upstream and 
downstream.549 Exhibit IDN -113(BCI) is an affidavit by [[***]], a mining officer at a major 
Indon esian mining concern  between 2011 and 2015 . In this affidavit, [[***]] reports on  the efforts 
his and other mining companies undertake to curb export -oriented illegal mining activities in [[***]]  
concession areas. In particular, he testifies on one internal field investigation in which his company  
uncovered illegal mining activities in one of its permit areas.550 
7.283.   The exhibits do show an increase in the cases police initiated and the cooperation bet ween 
a mining company and the Indonesian authorities to address illegal mining practices. Although this 
 
544 Indonesia's response to Panel question No.  64. 
545 Indonesia's response to Panel question No.  64. (emphasis original)  
546 Indonesia submitted images of environmental damage in Indonesia resulting from mining  activities . 
See e.g. WALHI, Study report on Environmental Conditions around Coastal Sea near the Mining Area due to the 
Nickel Industry in Morowali regency. Central Sulawesi, Kolaka and North Konawe Regencies, Southeast 
Sulawesi (2021), (Exhibit IDN -68); Images of Environmental Destruction  in Indonesia , (Exhibit IDN -69); and 
World Bank, "The impact of a nickel mine in Tanjung Buli, Indonesia" (27  March 2009), (Exhibit IDN -70). It is 
not always clear, though, whether they concern export -oriented mines.  
547 Indonesia's opening statement at the second meeting of the Panel, para.  79 (referring to Exhibit 
IDN-110 (BCI) , which shows an increase from [[ ***]]). 
548 [[***]] Expert Affidavit of [[***]] (15 March  2022), (Exhibit IDN -111(BCI)), p . 3. 
549 Indonesia's opening statement at the second meeting of the Panel, para.  82 (referring to Exhibit 
IDN-111(BCI)), p. 3 . 
550 Indonesia's opening statement at the second meeting of the Panel, para. 83 (referring to Expert 
Affidavit of [[***]] (17 March  2022), Exhibit IDN -113 (BCI)).  WT/DS592/R  
BCI deleted , as indicated [[***]]  
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  suggests an improvement in terms of regulatory vigour, there is nothing in the exhibits to 
demonstrate that the ability to take the enforcement actions or the rigorous adherence to law and 
regulation by mining companies was a result of the export ban – even partially. The Panel  observes 
that the increase in  nickel mining  criminal cases coincides in time with the transfer from the regional 
and provincial g overnments to the central government of the responsibility for mineral reporting 
mechanisms pursuant to Law  No. 3/2020.551 Indonesia does not address the relevance of this 
regulatory change, of notable importance, when explaining the increase in the crimina l proceedings.  
7.284.   Exhibit IDN -111(BCI), for its part, reflects the personal views of a law enforcement officer  
in the area of natural resources who assumed his position after the measures were imposed . It also 
contains Attachment   B, which lists recent enfor cement cases regarding the breach of laws governing 
the environment and mining.552 Even accepting [[***]] personal opinion that the  regulation of 
mining both upstream and downstream positively impacted law enforcement efforts , he presents  no 
direct evidence  that the  export ban contributed to the bringing of the  enforcement actions  referred 
to in Exhibit IDN -111 (BCI) or in his own affidavit.  More importantly, the Panel  does not find in this 
exhibit anything that demonstrates that the export ban contributes in a material way to securing 
compliance with Article  96(c).553 Finally, as regards Exhibit  IDN-113(BCI), the Panel  notes that the 
situation described dates back to 2012 and 2013, prior to the entry into force of the export ban. In 
the Panel 's view, therefore,  the exhibits do not demonstrate  a causal relationship  – even partially – 
between the increased criminal enforcement  and the export ban challenged by the European  Union . 
7.285.   Indonesia requests the Panel  to take account of Indonesia's comprehensi ve policy framework 
on sustainable mining and mineral resource management when assessing the contribution of the 
measures at issue.554 The Panel  agrees with Indonesia that, as stated by the Appellate  Body, in 
certain circumstances555 "a panel may be required  to examine together the different elements of 
one or more instruments identified by a respondent" to "understand properly the content, substance, 
and normativity of a given rule".556 Indonesia submits that Article  96(c) is part of one of the main 
pillars o f its comprehensive policy framework to regulate mining activities, namely the protection of 
Indonesia's environment through the imposition of sustainable mining requirements.557 However, 
Indonesia has failed to explain how the legal instruments that are pa rt of such a policy framework 
operate together and, in particular, how they operate vis-à-vis Article  96(c) of Law No.  4/2009. 
Furthermore, Indonesia has not provided the Panel  with most of the legal instruments that comprise 
the policy framework. The Pane l does not find on the record anything that explains, nor even refers 
to, this comprehensive policy framework, other than a figure included in Indonesia's first written 
submission.558 Therefore, the Panel  is not in a position to assess the contribution of t he export ban 
to securing compliance with Article  96(c) in light of Indonesia's comprehensive policy framework.  
7.286.   Based on the above, the Panel  does not consider that Indonesia has demonstrated that there 
is a genuine relationship of ends and means between t he objective pursued, namely securing 
compliance with Article  96(c), and the export ban. Although the Panel has found that the export ban 
is not incapable of resulting in a decrease in the nickel ore extraction rate, Indonesia has not provided 
sufficient e vidence to demonstrate that any change in the behaviour of the mines (i.e., less predatory 
and more sustainable) would be attributable to the export ban. As such, the Panel find s that 
Indonesia has failed to  demonstrate that the export ban would be apt to make a material contribution 
to securing compliance with Article  96(c).  
 
551 Indonesia's first written submission, para.  109. 
552 Exhibit IDN -111 (BCI) [[ ***]] 
553 The Panel notes that the criminal actions referred to in Exhibit IDN -111 (BCI) were taken with 
respect to [[ ***]] and not to enforce Article  96(c).  
554 Indonesia's response to Panel question No.  122 and comment on the European  Union 's response to 
Panel ques tion No.  115. 
555 The Appellate  Body found that such circumstances concern the respondent's choice "to demonstrate 
that the measure is designed and necessary to secure compliance with an obligation or obligations arising from 
several laws or regulations oper ating together as part of a comprehensive framework". See Appellate  Body 
Report, Argentina – Financial Services , fn 505 to para.  6.208. See also Appellate  Body Report, India – Solar 
Cells, para.  5.111.  
556 Appellate  Body Report, India – Solar Cells , para.  5.111.  
557 Indonesia's first written submission, paras.  142-143; and response to Panel question No.  105. 
558 Indonesia's first written s ubmission, Figure 10.  WT/DS592/R  
BCI deleted, as indicated [[***]]  
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  7.3.1.2.3.2   DPR 
Main arguments of the parties and third parties  
7.287.   Indonesia  argues that the DPR is "a pt to make a material contribution to securing compliance 
with" the sustainable mining and mineral resource management requirements559 because it "fosters 
vertical integration and long -term supply arrangement [s] in the nickel supply chain ".560 Indonesia 
contends that these requirements lead to long -term supply agreements , joint -ventures, and other 
forms of association with domestic smelters that "ensure[] that nickel -refining activities are properly 
regulated within Indonesia " and  "force[] changes in the behaviour of market actors ".561 
7.288.   Indonesia argues that " the burden of verifying conformity …becomes much easier once all 
market operators are brought within the enforcement jurisdiction of Indonesia" .562 In this respect, 
Indonesia contends that Article  XX(d) does not require that the changes in enforcement are 
attributable ex clusively to the measure at issue, particularly in cases like this one where the 
challenged measures form part of "a comprehensive policy framework with multiple elements 
interacting synergistically to achieve a policy objective" .563 
7.289.   The European  Union  subm its that Indonesia has failed  to demonstrate that the DPR 
contributes to securing the enforcement of environmental standards and the rules on conservation 
of natural resources564 because Indonesia has not demonstrated that nickel mining is solely 
responsible for the adverse environmental effects described by Indonesia. The European  Union  
contends that these adverse effects on Indonesia's environment are not " relevant to determinin g 
the potential contribution of the measures at issue " given that Indonesia has submitted an 
alternative defence under subparagraph(d), and not under subparagraphs (b) or (g), of Article  XX.565  
7.290.   The European  Union  further argues that the evidence Indonesia submitted demonstrates 
that the DPR is not apt to make a material contribution to "securing the implementation of higher 
environmental standards or the conservation of nickel reserves ".566 In particular, the 
European  Union  notes that Indonesia submits evide nce on adverse marine environmental effects 
that post-dates the adoption of the measures  at issue and suggests that environmental problems 
continue to exist after the adoption of the measures.567 The European  Union  further notes that 
Indonesia has not demon strated that the measures contribute to securing compliance because the 
ultimate purchasers of the ore are necessarily within Indonesia 's jurisdiction .568 Finally, the 
European  Union  submits that Indonesia has also failed to demonstrate that the processing of nickel 
ore domestically " ensures that illegal strip mines convert to sustainable mines regulated under 
Indonesian law ".569 
7.291.   For the third parties' main arguments , the Panel refers to paragraph 7.273  above.  
Analysis by the Panel  
7.292.   As explained above with regard to the export ban, the Panel  will conduct its assessment of 
the contribution of the DPR to securing compliance with Article  96(c) of Law  No. 4/2009 by looking 
at its design, including its structure and expected operation. The Panel  will partially rely on the 
findings under the "designed to secure com pliance" element because Indonesia's arguments are 
substantially the same and these two parts of the Panel's analysis are related, although distinct.  
7.293.   The Panel  found above that the legal instruments that implement the DPR, i.e. Article  103(1) 
of Law No.  4/2009, Article  17 of MEMR Regulation No.  25/2018, and Article  66 of MEMR Regulation 
 
559 Indonesia's first written submission, para.  194. 
560 Indonesia's first written submission, paras.  215-216. 
561 Indonesia's first written submission, paras.  215-216. 
562 Indonesia's  comment on the European  Union 's response to Panel question No.  111. 
563 Indonesia's comment on the European  Union 's response to Panel  question No.  115. 
564 European  Union 's second written submission, paras.  256-257. 
565 European  Union 's second written submission, paras.  262-263. 
566 European  Union 's second written submission, para.  270. 
567 European  Union 's second written submission, para.  271 (referring to Exhibit IDN -68). 
568 European  Union 's second written submission, para.  272. 
569 European  Union 's second written submission, para.  273. WT/DS592/R  
BCI deleted , as indicated [[***]]  
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  No. 7/2020 , do not contain any explicit mention of Article  96(c) or to the accomplishment of 
sustainable mining objectives. The Panel  further acknowledged that although the  DPR has a 
predominantly economic objective, it could not be ruled out that the DPR has a positive impact on 
the sustainability of mining activities in Indonesi a in the sense that the vertical integration resulting 
from the application of the DPR may be co nsidered to facilitate regulatory enforcement. The Panel  
noted, however, that Indonesia had not demonstrated that such improvement in regulatory 
enforcement could be attributed to the DPR.570  
7.294.   Indonesia 's main argument as regards the contribution of the DPR  to securing compliance 
with Article  96(c) is the same as under the "designed to secure compliance" analysis, i.e. the DPR 
leads to long -term supply agreements, joint -ventures, and other forms of association with domestic 
smelters that "ensure[] that nicke l-refining activities are properly regulated within Indonesia" .571 
The Panel  agrees with Indonesia that the DPR can foster vertical integration between miners and 
smelters because, as explained above, Articles 16(4) and (5) of MEMR Regulation No.  25/2018 
establish that IUP and IUPK holders for Production Operation can comply with their obligation to 
process and purify nickel and other minerals domestically by cooperating with other mining licence 
holders .572 
7.295.   Indonesia provides several  samples of nic kel ore sales contracts to support its contention.573 
The Panel  has carefully reviewed these sales contracts and observed that they deal with usual 
matters covered in this type of contract such as the type of commodity, its price and quality, 
sampling, force majeure  or termination. Indonesia has not explained the link between these 
contracts and the ability of th e DPR to make a material contribution to securing compliance with 
Article  96(c).  Nor has t he Panel  been able to discern that link from the text of t he sales contracts. 
Thus, the Panel  does not consider that these sales contracts illustrate how the DPR is apt to make a 
material contribution to securing compliance with Article  96(c) by fostering vertical integration.  
7.296.    Indonesia does not distinguish its argumentation between the material contribution made 
by the export ban from that made by the DPR. It, therefore,  relies upon the same  increase in 
enforcement actions in recent years (Exhibits IDN -110, 111, and 113) that it says demonstrates the 
export ban is apt to make a material contribution to securing compliance with Article  96(c), as 
evidence that the DPR is apt to make a material contribution  to the same objective .574 The Panel  
observes that the largest increase in enforcement actions, in 2020, also co incides with the transfer 
of regulatory authority from the regional and provincial governments to the central government. The 
Panel has earlier acknowledged that increased vertical integration could facilitate government 
exercise of regulatory authority. A lthough the evidence presented by Indonesia does not 
demonstrate that the increase in the number of investigations is definitely attributable to the 
implementation of the DPR, it may be.575 The Panel finds, therefore, that the DPR might make some 
contribution to increased regulatory enforcement. The Panel, however, does not see evidence of a 
material  contribution.  
7.297.   The Panel  further refer s to its findings above on public statements by the President of 
Indonesia and high -level government officials, and in national industrial plans where the 
development of [down] stream and intermediate industry based on natural resources and the 
increase of added va lue of the natural resources appear as the priority. The Panel  finds no mention 
in these statements about the role of the DPR in improving regulatory compliance.576  
 
570 See paras.  7.238 -7.247  above.  
571 Indonesia's first written submission, paras.  215-216. 
572 As of September 2021, "integ rated smelters with the nickel ore mines have developed in [[***]] 
IUP-KK licenses". See Indonesia's first written submission, para.  178, and the Maryono Report, (Exhibit IDN -18 
(BCI) ), p. 26.  
573 See Exhibits IDN -25(BCI), IDN -58(BCI), IDN -71(BCI), IDN -114(BCI), IDN -115(BCI), and 
IDN-116(BCI) . 
574 Indonesia's response to Panel question No.  123 ("Exhibits IDN -110, IDN -111 and IDN -113 constitute 
evidence on the panel record that the challenged measures make a contribution to their enforcement 
objective" ).  
575 Sayoga Gautama Supplemental Expert Report, 17  March  2022, (Exhibit IDN -109), p.5.  
576 See para.  7.243  above.  WT/DS592/R  
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  7.298.   As regards Indonesia's request that the Panel  assess es the contribution of the DPR in light  
of Indonesia's comprehensive policy framework on sustainable mining and mineral resource 
management, the Panel  refers to its views expressed in paragraph 7.285  above. 
7.299.   Based on the above considerations, the Panel  does not rule out the possibility that the DPR 
may improve regulatory enforcement by fostering vertical integration. Whatever the precise level of 
contribution the DPR makes, Indonesia has not demonstrated t hat it would be of sufficient 
importance to be considered a "material contribution" , that is, an important or relevant contribution 
towards securing compliance with Article  96(c).577  
7.300.   The Panel  finds, therefore, that Indonesia has failed to demonstrate that  the DPR is apt to 
produce a material contribution to securing compliance with Article  96(c).  
7.3.1.2.4   Weighing and balancing  
7.301.   As noted above578, the weighing and balancing  process concerns  several  distinct factors 
relating both to the measure s sought to be justified as necessary and to possible alternative 
measures that may be reasonably available to the responding Member to achieve its desired 
objective. These factors include the relative importan ce of the interests or values furthered by the 
challenged measures as well as the trade restrictiveness and the level of contribution achieved by 
both the challenged measures and the proposed alternative.  
7.302.   As noted in para graph  7.249  above, after having identified the factors to be weighed and 
balanced , the Panel will now analyse them with respect to the challenged measures  and the proposed 
alternati ve measure.  The Panel will examine these factors in turn.    
7.3.1.2.4.1   Weighing and balancing  of factors relating to the measure sought to be 
justified as "necessary "  
Main arguments of the parties and third parties  
7.303.   Indonesia  considers it "has demonstrated  that its s ustainable mining and mineral resource 
management requirements further interests or values of the highest importance" .579 Indonesia 
acknowledges that the challenged measures are trade restrictive580 but emphasizes that they make 
"a material contribution to securing compliance with Indonesia's sustainable mining and mineral 
resource management requirements" .581 Consequently, In donesia submits that " the trade 
restrictiveness of the measures at issue is outweighed by the contribution they make to securing 
compliance with its GATT -consistent laws or regulations, in light of the relative importance of the 
interests or values protect ed by such laws or regulations".582  
7.304.   The European  Union  argues that Indonesia has failed to show that the measures at issue, 
which are particularly trade restrictive, "are necessary to achieve those purported objectives in the 
sense that they contribute suf ficiently to their achievement" . Further, the European  Union  contends 
that there are less trade -restrictive alternatives reasonably available to Indonesia that would make 
an equivalent contribution to the objectives allegedly pursued.583 
7.305.   Korea  submits that a measure with actual contributing effects should be deemed as more 
necessary than one that has mere potential to contribute .584 
 
577 See definitions of "material" in para.  7.261  above.  
578 See para.  7.249  above.  
579 Indonesia's first written submission, para.  222. 
580 Indonesia's first written submission, para.  222. Indonesia notes that "questions still remain as to 
whether the domestic processing requirement entails limiting effects on trade that are separate  and distinct 
from the export prohibition itself" . See Indonesia's first written submission, para.  222. 
581 Indonesia's first written submission, para.  222. 
582 Indonesia's first written submission, para.  223. See also Indonesia's first written submission, 
para. 14. 
583 European  Union 's second written submission, para.  248. 
584 Korea's third -party response to Panel question No.  17. WT/DS592/R  
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  Analysis by the Panel  
7.306.   The Panel has found above that the protection of the environment is a value of high 
importance for Indones ia. The European  Union  does not dispute this but argues that the furtherance 
of this objective of the challenged measures is minimal and outweighed by their trade restrictiveness   
7.307.   The Panel has also found that the export ban is the most trade -restrictive measure that could 
be applied and  that the DPR is highly trade restrictive. The Panel also concluded that neither measure 
is apt to make a material contribution to securing compliance with Article  96(c) of Law No.  4/2009 
within the meaning of s ubparagraph (d) of Article  XX of the GATT  1994. 
7.308.   Based on the above considerations, the Panel concludes that these factors weigh against a 
finding of necessity despite the importance of the value pursued by Article  96(c) . 
7.3.1.2.4.2   Weighing and balancing of factors relating to the proposed  alternative 
measure  
7.309.   As noted in para graph  7.249  above the Panel will now compare the rele vant factors to be 
weighed with the proposed alternative measure. The European  Union  submits the same alternative  
measure for both the export ban and the DPR, which it argues is reasonably available to Indonesia 
and less trade restrictive than the challeng ed measures.585  
7.310.   The complaining party bears the burden of  identify ing any alternative measures that it 
considers the responding party may have taken.586 If the complainant submits an alternative 
measure, the responding party is then required to demonstrate "why its challenged measure 
nevertheless remains 'necessary' in the light of that alternative or, in other words, why the proposed 
alternative is not a genuine alternative or is not 'reasonably available'". If the responding party 
demonstrates that the alt ernative is not reasonably available, a panel will find that the challenged 
measure is necessary.587 
7.311.   To determine whether an alternative measure is reasonably available, panels have examined 
a series of factors such as " (i) the extent to which the alternative measure 'contributes to the 
realization of the end pursued'; (ii)  the difficulty of implementation; and (iii)  the trade impact of the 
alternative measure compared to that of the measure for which justification is claimed under 
Article  XX".588 Another factor considered has been whether the alternative measure achieves the 
level of compliance sought.589 In this regard, the Appellate  Body has recognized that "Members of 
the WTO have the right to determine for themselves the level of enforcement of th eir WTO -consistent 
laws and regulations" .590 Measures that were "merely theoretical in nature", or that impose d an 
undue economic or technical burden, or prevent ed a Member from achieving its desired level of 
protection  were not found to be "reasonably avai lable".591 
 
Main arguments of the parties and third parties  
7.312.   The European  Union  submits an alternative measure that consists of " an export authorisation 
system , whereby exports of nickel ore would be permitted upon production by the exporter of a 
document at testing that the nickel ore has been mined in compliance with all the environmental 
requirements that Indonesia purports to enforce ".592 The European  Union  submits the same 
alternative measure for both the export ban and the DPR because it "addresses the sh ared and 
 
585 European  Union 's response to Panel question No.  108. 
586 Appellate  Body Reports, EC – Seal Products , para.  5.169.  
587 Appellate  Body Reports, China – Publications and Audiovisual Products , para.  319 (referring to 
Appellate  Body Report, US – Gambling , paras.  309-311). 
588 Panel  Report , Canada – Wheat Exports and Grain Imports , para.  6.226 . 
589 Panel  Report , Canada – Wheat Exports and Grain Imports , para. 6.226. See also Appellate  Body 
Report, Dominican  Republic  – Import and Sale of Cigarettes, para.  70. 
590 Appellate  Body Report, Korea – Various Measures on Beef , para.  176. 
591 Appellate  Body Report, Dominican  Republic  – Import and Sale of Cigar ettes, para.  70. 
592 European  Union 's second written submission, para.  279. WT/DS592/R  
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  single objective (securing compliance with environmental standards), that Indonesia claims is 
pursued by both of the measures at issue".593 
7.313.   The European  Union  states that, although the export authorization system it suggests differs 
from the existing CnC certification, it may be built upon such certification. In this regard, the 
European  Union  emphasizes that the alternative measure it is suggesting is not curr ently being 
applied in Indonesia.594 
7.314.   The European  Union  argues that its alternative measure is less trade restrictive because it 
does not entail a total prohibition on exports595, and achieves the same level of protection as the 
export ban because it "would ensure that only nickel ore mined in accordance with all the 
environmental requirements that Indonesia seeks to enforce could be exported" .596 The 
European  Union  comments that the risks of non -compliance that Indonesia raised could also be 
addressed by the alternative measure since certification of compliance with all relevant 
environmental standards would be a pre -condition for exportation of nickel ore.597 
7.315.   Indonesia  argues that the alternative measure the European  Union  proposes has evolved 
throughout the p roceedings . At the first meeting with the Panel, the European  Union  argued that 
the alternative measure was  Indonesia's CnC certification process , whereas in its second written 
submission the European  Union  submits that the alternative measure is an export  authorization 
system.598  
7.316.   As regards Indonesia's CnC certification process applied to exports of nickel ore , Indonesia 
submits that it is not a real alternative because it is an " existing  element of Indonesia's 
comprehensive policy ".599 Indonesia refers to the Appellate  Body finding that " unchanged elements 
of a WTO Member's comprehensive policy cannot be deemed reasonably available alternatives ".600 
7.317.   As for the export authorization system suggested by the European  Union , Indonesia argues 
that the European  Union  has failed to explain how this measure would be different from the CnC  
certification  and, therefore, the European  Union  has not discharged its burden of proof to propose  a 
reasonably available alternative measure.601 Indonesia contends that the export authorization 
system "is not different , in any material way" from the  CnC certification  process.602 It further argues 
that the alternative measure suggested by the Eur opean  Union  has been applied and has failed to 
secure compliance with Indonesia's sustainable mining and mineral resource management 
requirements  and, therefore, it does not constitute a less trade -restrictive, reasonably available 
alternative measure for the purposes of Article  XX(d) of the GATT  1994.603 
7.318.   Indonesia submits that the European  Union  has failed to submit a reasonably available 
alternative measure because the European  Union 's proposal is "remedial in character" and, 
therefore, it cannot secure an  equivalent level of compliance with Indonesia's sustainable mining 
and mineral resource management requirements than that Indonesia achieves with the DPR.604 
7.319.   Indonesia further argues that the alternative measure proposed by the European  Union  
"would entail  significant technical, financial and resource obstacles for Indonesia, if it were even 
 
593 European  Union 's response to Panel question No.  108. 
594 European  Union 's second written submission, para.  280. 
595 European  Union 's second written submission, para.  281. 
596 European  Union 's second written submission, para.  282. 
597 European  Union 's response to Panel question No.  108. 
598 Indonesia's second written submission, paras.  184-186. 
599 Indonesia's second written submission, paras.  184-185, referring to the European  Union 's opening 
statement at the first meeting of the Panel, para.  75. (emphasis original)  
600 Indonesia's second written submission, para.  185 (referring to Appellate  Body Report, 
Brazil  – Retreaded Tyres , para.  172). 
601 Indonesia's second written submission, par a. 187. 
602 Indonesia's second written submission, para.  188. (emphasis original)  
603 Indonesia's second written submission, para.  189. 
604 Indonesia's first written submission, para.  220; and comments on the European  Union 's response to 
Panel question No.  108. WT/DS592/R  
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  possible at all" .605 In Indonesia's view, the alternative measure is "theoretical in nature and far 
removed from the facts and circumstances of this case".606 
7.320.   Brazil  comments that data Indonesia puts forward seems to demonstrate its ability to control 
overall nickel exports. In  light of this, Brazil suggests that instead of prohibiting the exportation of 
nickel ore altogether, a less trade -restrictive measure wo uld be to stipulate that only nickel ore that 
has been extracted in a sustainable manner could be exported or domestically processed.607 Japan  
submits that  the Panel should consider  whether Indonesia's underlying legislative concerns centred 
on the  depletio n of its ore reserves or predatory mining, c ould be addressed more directly and 
effectively through non -discriminatory measures, rather than export restrictions.608 
Analysis by the Panel  
7.321.   As noted above, the Panel will now weigh and balance the same factors with respect to the 
proposed alternative measure. In particular, the Panel will  determine whether  the alternative 
measure proposed by the European  Union : (i) makes an equivalent contribution to the objective of 
securing compliance with Article  96(c); (ii)  is reasonabl y available  for Indonesia, and (iii)  is less 
trade restrictive than the export ban and the DPR.  
7.322.   Before turning to these three elements, t he Panel first addresses  Indonesia 's argument that 
the European  Union 's alternative measure has evolved th roughout the proceedings. According to 
Indonesia, the European  Union  has submitted three different alternative measures: (i)  CnC 
certification; (ii)  the export authorization system; and (iii)  the designation of a responsible 
representative within Indonesia by the foreign purchaser.609 
7.323.   The Panel  disagree s with Indonesia that the European  Union  has submitted three alternative  
measures in  these proceedings.  Since its opening statement at the first meeting with the Panel, the 
European  Union  has consiste ntly advocated for an export authorization system that would allow for 
the exportation of nickel ore upon verification of compliance with the relevant environmental 
requirements.610 The European  Union  has indicated that this export authorization system coul d be 
built upon Indonesia's CnC certification.611 In the Panel's  view, the fact that the export authorization 
system could be built upon this certification does not mean that the European  Union 's alternative 
measure is the CnC certification itself. As far a s the designation of a representative is concerned, 
the Panel  notes that the European  Union  suggested that such a designation may constitute an 
additional element to its alternative measure to address Indonesia's jurisdictional concerns.612 In 
the Panel's  view, this would not change the nature of the European  Union 's alternative measure, 
which would continue to be a "check of export documentation".613 Thus, the Panel  is of the view that 
the European  Union  has submitted a single alternative measure, which is a n export authorization 
system.  
7.324.   Indonesia argues that the European  Union  has not discharged its burden of proof because it 
has not explained how its proposed alternative measure differs from the existing CnC certification614 
or is built upon the CnC certific ation.615 The Panel  observes that both parties have addressed the 
similarities and differences between these two measures. The Panel  starts by recalling that Indonesia 
has confirmed that CnC certification is not currently required in order to be granted a n ickel mining 
 
605 Indonesia's comments on the European  Union 's response to Panel question No.  111. 
606 Indonesia's comments on the European  Union 's response to Panel question No.  111. 
607 Brazil's third -party submission, para.  28. 
608 Japan's third -party submission, para.  42. 
609 Indonesia's second written submission, paras.  184-186; and comments on the European  Union 's 
response to Panel question No.  111. 
610 European  Union 's opening statement at the first meeting of the Panel, para.  75; response to Panel 
question No.  49; and second written submission, para.  279. 
611 European  Union 's response to Panel question No.  49; and second written submission, para.  279. 
612 The European  Union  states that "there are other less trade -restrictive means to ad dress the so -called 
jurisdictional concerns and which could be applied in conjunction with the proposed check of export 
documentation. For example, Indonesia could request the designation of a responsible representative within 
Indonesia by the foreign purc haser." See European  Union 's response to Panel question No.  111. 
613 European  Union 's response to Panel question No.  111. 
614 Indonesia's second written submission, para.  187. 
615 Indonesia's response to Panel question No.  110. WT/DS592/R  
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  licence.616 The Panel  further observes that the CnC certification was a pre -requisite to be granted a 
mining licence617 whereas the proposed export authorization system would apply at the point of 
exportation to those IUP and IUPK holders exporting nickel ore. The Panel  also observes differences 
as regards their substantive coverage: the CnC certification encompasses admin istrative, territorial, 
technical, environmental and financial requirements618 whereas the proposed export authorization 
system would encompass " the environmental standards that Indonesia  claims it is seeking to secure 
compliance with ".619 The Panel  disagrees, therefore, with Indonesia that the export authorization 
system "is not different , in any material way, from the 'clear and clean' certification process that 
constitutes an existing el ement of Indonesia's comprehensive policy" .620  
7.325.   Having concluded that the European  Union  has properly raised one alternative measure that 
is not the same as an existing measure already applied, the Panel now turns to the three elements 
of the analysis.  
Cont ribution of the alternative measure  
7.326.   The Panel has found above that the export ban and the DPR are not apt to make a material 
contribution to securing compliance with Article  96(c).621  
7.327.   Indonesia contests the ability of the alternative measure to make an equ ivalent contribution 
for four reasons: (i)  its remedial nature; (ii)  its similarity with the CnC certification; (iii)  the fact that 
it poses additional enforcement problems because both the supply and demand ends of the supply 
chain are not under Indonesia 's jurisdiction; and (iv)  the fact that it does not remove ex ante  all 
foreign demand for nickel ore, unlike the export ban. The Panel  will address each of Indonesia's 
contentions  in turn.  
7.328.   In terms of the remedial nature of the proposed alternative  compare d to the preventive 
nature of the measures at issue, Indonesia states that remedial measures cannot make an equivalent 
contribution to the enforcement of Indonesia's sustainable mining and mineral resource 
management requirements.622 Indonesia further argue s that this "type of remedial enforcement 
mechanism at the point of exportation has already been tried, tested and failed to achieve 
Indonesia's desired level of enforcement protection" .623 More particularly, Indonesia refers to the 
CnC certification system  as a remedial enforcement measure.624 
7.329.   The Panel  has described above the differences between the export authorization system 
proposed by the European  Union  and the CnC certification system. Therefore, the Panel  does not 
agree with Indonesia that this type of remedial enforcement mechanism has already been tried, 
tested, and failed simply because the CnC certification was implemented.  The Panel  does not see a 
reason to exclude without evaluation  an alternative me asure using a remedial approach. Such a 
measure would only be excluded if the respondent demonstrates that it cannot make an equivalent 
contribution to the objective pursued. In this regard,  the Appellate  Body has found that a panel 
should take into accoun t the capacity of a Member to implement remedial measures, particularly if 
they involved prohibitive costs or substantial technical difficulties .625 
7.330.   The Panel disagrees with  Indonesia's argument that the export authorization system is not 
a valid alternativ e because the CnC "is already part of Indonesia's currently applicable 
comprehensive sustainable mining policy" .626 The Panel has already explained the export 
authorization system  the European  Union  proposes  is not the same as the CnC certification. Further , 
 
616 Indonesia's response to Panel qu estion No.  107. 
617 The Panel  notes that Indonesia has stated that "[p] rior to the enactment of MEMR Regulation 
No. 11/2012, nickel extraction was not subject to CnC certification ". See European  Union 's response to Panel 
question No.  107. 
618 European  Union 's comments on Indonesia's response to Panel question No.  114 (referring to Article  1 
of MEMR Regulation No.  43/2015).  
619 European  Union 's response to Panel question No.  111. 
620 Indonesia's second written submission, para.  188. (emphasis original)  
621 See paras.  7.286  and 7.300  above.  
622 Indonesia's first written submission, para. 220. 
623 Indonesia's opening statement at the second meeting of the Panel, para.  84. 
624 Indonesia's response to Panel question No.  114. 
625 Appellate  Body Report, Brazil – Retreaded Tyres , para.  171. 
626 Indonesia's second written submission, para.  185. WT/DS592/R  
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  the Panel  notes that  that the CnC certification is no longer part of the currently applicable 
comprehensive sustainable mining policy because this  certification is no longer required in order to 
be granted a nickel mining licence .627 Moreover, any CnC cer tifications that remain valid, that is, 
those issued before the promulgation of MEMR Regulation No.  7/2020, are remnants of an earlier 
legal regime.628 Finally , the absence of exports of nickel ore due to the prohibition currently in force 
means that no mea sure – be it the CnC or any other – is being applied to check the conformity of 
exports  (which are not occurring)  with the relevant environmental regulations. The panel in 
Brazil  – Retreaded Tyres' finding that an alternative to the measure at issue that i s already part of 
the responding Member's comprehensive policy should be rejected,629 is consequently inapposite to 
the present case . 
7.331.   Further , Indonesia expresses concern that the CnC would not achieve the same level of 
contribution as the challenged measures, because foreign purchasers are outside its jurisdiction. 
Indonesia argues that verification of compliance with the relevant regulations will become easier 
"once all market operators are brought within the enforcement jurisdiction of In donesia " because 
regulators can cross -check production volumes of mining companies based on their RKABs with 
consumption data of processing companies.630 Indonesia submits that "[s]uch an enhanced 
enforcement mechanism is simply not available in respect of sales between domestic mining 
companies and foreign purchasers of nickel ore ".631   
7.332.   The European  Union  argues that Indonesia has not explained "why compliance cannot be 
checked properly in the case of exported goods , particularly as the relevant legal oblig ations are 
incumbent on the mining permit holder who is within the jurisdiction ".632 It further notes that 
Article  96(c) contains obligations directed at Indonesian IUP and IUPK holders, not purchasers of 
nickel ore and, consequently, the differences betwee n domestic and foreign demand in terms of their 
ability to enforce such obligations are not relevant.633 The European  Union  suggests that, as part of 
an export authorization system, Indonesia could require that foreign purchasers designate a 
responsible rep resentative within Indonesia.634 
7.333.   The Panel  agrees with the European  Union  that the obligation contained in Article  96(c) is 
on the IUP and IUPK holders and, therefore, the Indonesian authorities should focus on them when 
verifying their compliance. At the same time, the Panel  understands Indonesia's position that having 
both buyers and sellers of nickel ore within its jurisdiction facilitates the ability of the relevant 
authorities to verify compliance. The Panel  further notes that, on oc casion , to verify compliance by 
an economic actor, the behaviour of other economic actors may also be relevant. In the Panel's 
view, the focus should be on whether the export authorization system can make an equivalent 
contribution to securing compliance w ith Article  96(c) by allowing Indonesian authorities to verify 
compliance.  The Panel  is of the view that it is not necessary to have buyers within Indonesia's 
jurisdiction to verify compliance. Indonesia refers to the possibility to cross -check production  
volumes of mining companies based on their RKABs with the consumption data of processing 
companies. However, that is not the only possible data cross -check that would allow Indonesian 
authorities to verify compliance. Nothing prevents Indonesia from cross -checking the production 
volumes of mining companies found in their RKABs with their export declarations as well as the 
consumption data of processing companies in Indonesia. If the sum of the nickel ore sold 
domestically and abroad by a mining company exc eeded the production volume authorized in its 
RKAB, this could indicate that the mining company has not acted in conformity with the relevant 
sustainable mining and resource conservation requirements.  
 
627 Indonesia's response to Panel question No.  107(a) (referring to Article  113(c) of MEMR Regulation 
No. 7/2020 ). 
628 Indonesia's response to Panel question No.  107(a). 
629 Appellate  Body Report, Brazil – Retre aded Tyres , para.  172. The Appellate  Body reasoned  that 
"[s]ubstituting one element of this comprehensive policy for another would weaken the policy by reducing the 
synergies between its components, as well as its total effect."  
630 Indonesia's response to P anel question No.  113; and comments on the European  Union 's response to 
Panel question No.  111. 
631 Indonesia's response to Panel question No.  113. (emphasis original)  
632 European  Union 's response to Panel question No.  111. 
633 European  Union 's response to Panel question No.  118. 
634 European  Union 's response to Panel question No.  111. WT/DS592/R  
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  7.334.   As regards Indonesia's claim that remedial measures are  not effective and have the added 
difficulty of having to verify conformity after a transaction has already taken place635, the Panel  
refers to the discussion above that a remedial measure can be an alternative measure to a preventive 
one, if it is reasonably available to the responding Member.636 The Panel has found that the 
alternative achieves at least the same level of contribution as the challenged measures. Indonesia 
has opted for a preventive measure because it considers it easier to enforce. T his issue is more 
properly dealt with under  the alternative  measure 's reasonable availability and will be discussed 
further below.  
7.335.   Based on the foregoing, the Panel  is of the view that the proposed alternative measure 
achieves at the very least the same l evel of contribution in terms of securing compliance with the 
sustainable mining requirements in Article  96(c) by requiring proof of compliance with the relevant 
environmental regulations that would be submitted by individuals within Indonesia's jurisdicti on 
before the exportation of nickel ore.  
Trade restrictiveness of the alternative measure  
7.336.   The Panel  has found above that the export ban  is the most trade -restrictive measure that 
can be applied  and that the DPR is highly trade restrictive.  The export ban d irectly prohibits the 
exportation of nickel ore whereas the DPR, if complied with, would mean that all nickel ore is 
consumed domestically and that there is no nickel ore to export. As explained above, such refining 
necessarily converts nickel ore into a d ifferent product, classified under a different HS code.637  
7.337.   The alternative measure proposed by the European  Union  would allow the exportation of 
nickel ore subject to compliance with the relevant environmental standards.  
7.338.   The Panel  therefore agrees with the  European  Union  that its alternative measure is less trade 
restrictive than the export ban and the DPR because it would permit more exports than the 
challenged measures.  
Technical and economic feasibility of the alternative measure  
7.339.   The Panel  notes that Ind onesia argues that it "would entail significant technical, financial 
and resource obstacles for Indonesia, if it were even possible at all ".638 Indonesia explains that 
border officials would not be able to determine whether  the nickel ore to be exported is in compliance 
with Indonesia's sustainable mining and mineral resource management requirements  merely by 
examining the consignment of nickel ore . This is  because this examination does not concern a 
product characteristic verifiable at the point of exportat ion but a process and production method 
that happens prior to the arrival of the product at the point of exportation. It is Indonesia's view 
that this would make the proposed alternative " simply theoretical in nature and far removed from 
the facts and circ umstances of this case, and the regulatory reality in Indonesia".639 Indonesia also 
submits that verifying the conformity of each and every consignment of nickel ore is unreasonable.640 
7.340.   The Panel  notes that the implementation of the proposed alternative measure may entail 
costs and some technical difficulty, as usually happens when a new measure is implemented. In this 
regard, the Panel  recalls that the Appellate  Body has found that an alternative measure is not 
reasonably available "where the  responding Member is not capable of taking it, or where the measure 
imposes an undue burden on that Member, such as prohibitive  costs or substantial  technical 
difficulties".641 Indonesia states that Indonesian border officials cannot determine at the point  of 
exportation from physical inspection of the nickel ore whether it has been mined in conformity with 
 
635 Indonesia's response to the European  Union 's comment on Panel question No.  111. 
636 See paras.  7.328 -7.329  above.  
637 See para.  2.23 above.  
638 Indonesia's comment on the European  Union 's response to Panel question No.  111.  
639 Indonesia's comment on the European  Union 's response to Panel question No.  111.  
640 Indonesia's comment on the European  Union 's response to Panel question No.  111. 
641 Appellate  Body Report, US – Gambling , para.  308. (emphasis added) See also Appellate  Body 
Report, Brazil  – Retreaded Tyres , para.  156 and Appellate  Body Report, China – Publications and Audiovisual 
Products, paras.  327-328 (noting that the respondent "did not provide evidence to the Panel substantiating the 
likely nature or magnitude of the costs that would be associated with the proposed alternative, as compared  
to the curr ent system.") .  WT/DS592/R  
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  sustainable mining and mineral resource management requirements.642 In this regard, t he Panel 
notes that the alternative presented by the European  Union  does not refer to a physical inspection 
of each consignment upon exportation, but rather a system whereby exporters produce relevant 
documentation, prior to exportation, to certify compliance with the relevant requirements. These 
documents could then be ve rified against the RKABs of the relevant mines. The Panel  therefore 
considers that Indonesia has failed to explain why it is not able to implement the proposed alternative 
measure or why the costs or technical difficulties associated with its implementatio n are prohibitive 
or substantial. Indonesia notes that not having to deal with exports makes enforcement easier. Just 
because the alternative may not be as easy to implement as the challenged measures does not 
mean that it is not technically or economicall y feasible.  
Conclusion on the reasonable availability of the alternative measure  
7.341.   The Panel has found that the proposed alternative measure makes at least the same level 
of contribution as the challenged measures , is less trade restrictive , and is technica lly and 
economically feasible to Indonesia even if it s initial implementation might entail some  costs and 
technical difficulty . The Panel,  therefore , concludes that the European  Union  has presented a 
reasonably available alternative measure and Indonesia h as failed to rebut this.  
7.3.1.2.5   Conclusion on necessity  
7.342.   The Panel finds that the trade restrictiveness and limited contribution of the measures to the 
objectives of Article  96(c) weigh towards a finding that the challenged measures are not necessary. 
Moreover, th e Panel has found that there is an alternative measure that is reasonably available to 
Indonesia. The Panel, therefore, concludes that the result of the weighing and balancing exercise is 
that the challenged measures are not necessary within the meaning of  subparagraph d of Article  XX 
of the GATT  1994.  
7.3.2   Conclusion on Article  XX(d ) of the GATT  1994  
7.343.   The Panel  recalls that Article  XX of the GATT  1994 sets out a two -tier test that involves, first, 
an assessment of whether the measure falls under at least one of its subparagraphs and, second, 
an assessment of whether the measure satisfies the requirements of the chapeau  of that provision.  
7.344.   The Panel  has found that Indonesia has failed to demonstrate that the export ban and the 
DPR fall within the scope of subparagraph (d) of Article  XX of the GATT  1994. 
7.345.   Based  on the foregoing, the Panel  does not find it necessary to proceed with an analysis of 
the export ban and the DPR under the chapeau  of Article  XX of the GATT  1994. 
8  CONCLUSIONS AND RECOMMENDATION  
8.1.  For the reasons set out in this Report, the Panel concludes as follows:  
8.2.  The prohibition on  the export of nickel ore that began in January 2014  and is currently 
implemented through Law No.  4/2009 (as amended by Law No.  3/2020), MOT Regulation 96/2019 
and MEMR Regulation 11/2019 is not excluded from the applicability of Article  XI:1 because it is  not 
a prohibition or restriction temporarily applied to prevent or relieve critical shortages of foodstuffs 
or other products essential to Indonesia within the meaning of Article  XI:2(a) of the GATT  1994. The 
export prohibition is inconsistent with Articl e XI:1 of the GATT  1994. The Panel has also concluded 
that the export prohibition is not justified under Article  XX(d) of the GATT  1994 because it is not 
necessary to secure compliance with laws or regulations that are themselves not inconsistent with 
the GATT  1994. 
8.3.  The domestic processing requirement (DPR) that began in 2012  and is currently implemented 
through Law No.  4/2009 (as amended by Law No.  3/2020), MEMR Regulation Nos.  25/2018 and 
7/2020 is not excluded from the applicability of Article  XI:1 becau se it is not a prohibition or 
restriction temporarily applied to prevent or relieve critical shortages of foodstuffs or other products 
essential to Indonesia  within the meaning of Article  XI:2(a) of the GATT  1994. The DPR is 
 
642 Indonesia's comment s on the Eu ropean  Union 's response to Panel question No.  111. WT/DS592/R  
BCI deleted, as indicated [[***]]  
- 103 - 
 
  inconsistent with Article  XI:1 of the GATT  1994. The Panel has also concluded that the DPR  is not 
justified under Article  XX(d) of the GATT  1994 because it is not necessary to secure compliance with 
laws or regulations that are themselves not inconsistent with the GATT  1994. 
8.4.  Under Article  3.8 of the DSU, in cases where there is an infringement of the obligations 
assumed under a covered agreement, the action is considered prima facie  to constitute a case of 
nullification or impairment. The Panel  concludes that the measures at issue a re not excluded from 
the obligations in Article  XI:1 of the GATT  1994 by Article  XI:2(a) of the GATT  1994, are inconsistent 
with Article  XI:1 of the GATT  1994, and are not justified under Article  XX(d) of the GATT  1994. As 
such, they have nullified or impa ired benefits accruing to the European  Union  under that agreement.  
8.5.  Pursuant to Article  19.1 of the DSU, the Panel  recommends that Indonesia bring its measures 
into conformity with its obligations under the GATT  1994. 
 
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