WT/DS484/19  
 
14 June 2019  
(19-4146) Page: 1/5 
  Original: English  
 
INDONESIA – MEASURES  CONCERNING THE IMPO RTATION OF CHICKEN M EAT  
AND CHICKEN PRODUCTS  
RECOURSE TO ARTICLE 21.5 OF THE DSU  BY BRAZIL  
REQUEST FOR THE ESTA BLISHMENT OF A PANEL   
The following communication, dated  13 June 2019 , from the delegation of Brazil  to the Chairperson 
of the Dispute Settlement Body, is circulated pursuant to Article 21.5 of the DSU.  
 
_______________  
 
 
1. My authorities have instructed me to request the establishment of a panel pursuant to Articles 
6 and 21 .5 of the Understanding on Rules and Procedures Governing the Settlement of Disputes 
("DSU"), Article XXIII of the General Agreement on Tariffs and Trade 1994 ( "GATT 1994 "), Article  19 
of the Agreement on Agriculture, and Article 11 of the Agreement on Sanitary and Phytosanitary 
Measures ( "SPS Agreement "), with respect to the failure of Indonesia to implement the 
recommendations and rulings of the Dispute Settlement Body ( "DSB") in this dispute.  
I. Background  
2. On 22 November 2017, the DSB ado pted its recommendations and rulings in Indonesia — 
Measures Concerning the Importation of Chicken Meat and Chicken Products  (DS484).1  The DSB 
found that the measures at issue are inconsistent with Indonesia 's obligations under Articles  III:4 
and XI of th e GATT 1994 and Article 8 and Annex C(1)(a) of the SPS Agreement. The DSB 
recommendations and rulings included the following findings:  
Positive List Requirement  
• the positive list requirement as enacted through Ministry of Agriculture Regulation 
No. 58/2015  ("MoA 58/2015 ") and Ministry of Trade Regulation No. 05/2016 ( "MoT 
05/2016 ") is inconsistent with Article XI:1 of the GATT 1994;2 
 
• the positive list requirement as enacted through MoA 58/2015 and MoT 05/2016 is not 
justified under Article XX(d) of the GAT T 1994;3 
 
• the positive list requirement has not ceased to exist by virtue of the relevant provisions in 
Ministry of Agriculture Regulation No. 34/2016 ( "MoA 34/2016 ") and Ministry of Trade 
Regulation No.  59/2016 ( "MoT 59/2016 ");4 and 
 
• since the positive li st requirement, as enacted through MoA 34/2016 and MoT  59/2016, 
continues to apply in the same manner as enacted through MoA 58/2015 and MoT 05/2016, 
the findings on Articles XI and XX(d) of the GATT 1994, in respect of the measure as enacted 
                                                
1 WT/DSB/M/404, para. 4.7; WT/DS484/12.  
2 Original Panel Report, paras. 7.118 and 8.1(b).  
3 Original Panel Report, paras. 7.158 and 8.1(b)  
4 Original Panel Report, paras. 7.167 and 8.1(b).  WT/DS484/19  
 
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  through MoA 5 8/2015 and MoT 05/2016, also apply to this measure as enacted through MoA 
34/2016, and MoT 59/2016.5 
Intended Use Requirement  
• the intended use requirement, as enacted through the relevant provisions in MoA 58/2015, 
is inconsistent with Article XI:1 of the GATT 1994 and is not justified under Article XX(b) or 
Article XX(d) of the GATT 1994;6 
 
• the intended use requirement has not c eased to exist by virtue of the amendments made 
through the relevant provisions in MoA 34/2016;7 and 
 
• in respect of the intended use requirement as enacted through the relevant provisions in 
MoA 34/2016,  
 
o Article III:4 of the GATT 1994 is applicable becaus e there is an equivalent measure 
applied to like domestic products;8 
 
o the intended use requirement with respect to its enforcement provisions is 
inconsistent with Article III:4 of the GATT 1994;9 and 
 
o the intended use requirement with respect to its enforcement provisions is not 
justified under the general exceptions in Article XX(b) or Article XX(d) of the 
GATT  1994.10 
Import Licensing Procedures  
• the application windows, the validity periods and the fixed licence terms, as enacted through 
MoA 58/2015 and MoT 05/2016, are inconsistent with Article  XI:1 of the GATT 1994;11 
 
• the application windows, the validity periods and the fixed licence terms, as enacted through 
MoA 58/2015 and MoT 05/2016, are not justified under Article XX(d) of the GATT 1994;12 
and, 
 
• because of the almost identical language in the relevant provisions governing the fixed 
licence terms, the Panel 's findings on Article XI and XX(d) of the GATT 1994, in respect of 
this measure as enacted through MoA 58/2015 and MoT 05/2016, also apply to  this measure 
as enacted through MoA 34/2016 and MoT  59/2016.13 
Undue Delay in the Approval of the Veterinary Health Certificate  
• Indonesia has caused an undue delay in the approval of the veterinary health certificate for 
the importation of chicken meat and  chicken products from Brazil inconsistent with Article 8 
and Annex C(1)(a) of the SPS  Agreement.14 
3. In light of the above findings, the DSB  recommended that Indonesia bring its measures into 
conformity with its obligations under these agreements.  
4. On 15 March 2018, Brazil and Indonesia informed the DSB that they had agreed that the 
reasonable period of time ( "RPT") for Indonesia to implement t he DSB 's recommendations and 
                                                
5 Original Panel Report, paras. 7.170 and 8.1(b).  
6 Original Panel Report, paras. 7.337 and 8.1(c).  
7 Original Panel Report, paras. 7.277 and 8.1(c).  
8 Original Panel Report, paras. 7.296 and 8.1(c).  
9 Original Panel Report, paras. 7.331 and 8.1(c).  
10 Original Panel Report, paras. 7.335 and 8.1(c).  
11 Original Panel Report, paras. 7.383, 7.400 and 8.1(d).  
12 Original Panel Report, paras. 7.428 and 8.1(d).  
13 Original Panel Report, paras.  7.449 and 8.1(d).  
14 Original Panel Report, paras. 7.535 and 8.1(e).  WT/DS484/19  
 
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  rulings would be eight months from the date of adoption of the Panel Report, expiring on 
22 July 2018.15 
5. On 27 July 2018, Brazil and Indonesia informed the DSB that the two parties concluded Agreed 
Procedures under Articles 21 a nd 22 of the Dispute Settlement Understanding ( "Agreed 
Procedures ").16  Paragraph 1 of the Agreed Procedures provides that "[i]f Brazil deems it appropriate 
to invoke Article 21.5 of the DSU, Brazil may at any time request the establishment of a compliance 
panel pursuant to that Article. "  It further provides that "Brazil will not need to hold previous 
consultations with Indonesia before requesting the establishment of the panel ".  Brazil and Indonesia 
did not hold consultations before the date of this reque st. 
II. Measures at Issue  
6. In the paragraphs that follow, Brazil identifies the measures at issue for the purposes of this 
request.  
Positive List Requirement  
7. The positive list requirement concerns Indonesian regulations governing the importation of 
meat, wh ich prescribe the type of carcass for which an importer may obtain a Ministry of Agriculture 
Import Recommendation and Ministry of Trade Import Approval.  Products that are not listed in the 
relevant appendices of the respective regulations cannot be the s ubject of either an Import 
Recommendation or an Import Approval.17 
8. In its status report to the DSB, Indonesia reported having adopted Ministry of Agriculture 
Regulation No. 23/2018 ( "MoA 23/2018 "), which entered into force on 24 May 2018.  Indonesia also 
reported having adopted Ministry of Trade Regulation No. 65/2018 ( "MoT 65/2018 "), which entered 
into force on 31 May 2018.18  On 24 April 2019, Indonesia promulgated Ministry of Trade Regulation 
No. 29/2019 ( "MoT 29/2019 ").  MoT 29/2019 appears to revoke MoT  59/2016 and to additionally 
revoke the amendments to MoT 59/2016 that had been introduced by Ministry of Trade Regulation 
No. 13/2018 ( "MoT 13/2018 "), Ministry of Trade Regulation No. 20/2018 ( "MoT 20/2018 "), and MoT  
65/2018.  These measures, however, did not eliminate the positive list requirement.  
9. The positive list requirement is still reflected, inter alia , in: 
• MoA 34/2016, including Articles 6A and 7 thereof;  
• MoA 23/2018, including Articles I.2, and I.10 and Annex es I and II thereof; and  
• MoT 29/2019, including Articles 9, 10, 11, 12, 13, 17, and 22 and Annexes II, III, and IV.  
Intended Use Requirement and its Enforcement Provisions  
10. The intended use requirement limits the uses of imported chicken meat and chicken pr oducts 
in the Indonesian market to specific "intended uses " as identified in the relevant Indonesian 
regulations.19 
11. The enforcement provisions of the intended use requirement applicable with respect to 
imported products include: stricter sanctions that appl y to importers deviating from the limitation 
on the allowed uses, including, for instance, the importer 's suspension; the commitment to certain 
intended uses (to obtain an MoA Import Recommendation, for instance), which restricts the importer 
to not sellin g elsewhere; and the burden and cost arising from having to submit a distribution plan 
and a weekly distribution report.  
                                                
15 WT/DS484/16.  
16 WT/DS484/17.  
17 Original Panel Report, para. 7.103.  
18 WT/DS484/18/Add.4.  
19 Original Panel Report, para. 7.176.  WT/DS484/19  
 
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  12. In its status report to the DSB, Indonesia reported having adopted MoA 23/2018 and MoT 
65/2018.20  As discussed above, on 24 April 2019,  Indonesia promulgated MoT 29/2019, which 
appears to revoke MoT  59/2016 and to additionally revoke the amendments to MoT  59/2016 that 
had been introduced by MoT 13/2018, MoT 20/2018, and MoT 65/2018. These measures, however, 
did not eliminate the intended use requirement or its enforcement provisions.  
The intended use requirement and its enforcement provisions are still reflected, inter alia , in: 
• MoA 23/2018, including Articles I.9, I.10, and I.11 thereof;  
• MoA 34/2016, including in Articles 4, 22, 28, 31, 32, and 38 thereof; and  
• MoT 29/2019, including in Articles 22, 25, and 26 thereof.  
Import Licensing Procedures:  
13. Indonesia 's import licensing procedures include fixed licence terms, which limit the ability of 
importers to modify an MoA Import Recommendation and an MoT Import Approval after their 
issuance.  
The fixed licence terms are still reflected, inter alia , in:  
• MoA 23/2018, including Articles I.9 and I.11 thereof;  
• MoA 34/2016, including Articles 22(1)(l), 3 2(2) and 38 thereof; and  
• MoT 29/2019, including Articles 16, 17, 18, and 31 thereof.  
Undue Delay in Approval Procedures  
14. Pursuant to Indonesia 's laws and regulations, the approval of the veterinary health certificate 
is part of the country of origin approva l procedure which, in turn, is bundled with a business unit 
approval procedure.21  The Panel found that Brazil requested approval of the veterinary health 
certificate for the importation of chicken meat and chicken products in 200922 and that, in 2012, at 
least one Brazilian enterprise, interested in exporting chicken meat and chicken products to 
Indonesia, submitted the relevant SPS related information necessary to obtain business unit 
approval to the Indonesian authorities.23  The Panel further found that th e only information which 
was outstanding for the purposes of approval of the veterinary health certificate related to halal 
assurances, which the Panel found is not SPS related.24  On that basis, the Panel concluded that 
Indonesia caused an undue delay in t he approval of the veterinary health certificate inconsistent 
with Article 8 and Annex C (1)(a) of the SPS Agreement.25 
15. In its status report to the DSB, Indonesia reported that MoA 23/2018 stipulates that 
certification processes for veterinary health and ha lal are conducted separately and that, as a 
consequence, halal certification is no longer a prerequisite for veterinary health certification.  
16. Indonesia, however, continues to unduly delay undertaking and completing the approval 
procedures of the veterinary  health certificate.  At this date, Brazil 's application for a veterinary 
health certificate for the importation of chicken meat and chicken products remains at the first stage 
of Indonesia 's approval process ( "desk review "), the same stage where it has be en for almost 10 
years now.  Indonesia has therefore failed to undertake and complete the approval procedures 
without undue delay.  
                                                
20 WT/DS484/18/Add.4.  
21 Original Panel Report, paras. 7.501 and 7.518.  
22 Original Panel Report, para. 7.504.  
23 Original Panel Report, para. 7.506.  
24 Original Panel Report, para. 7.527.  
25 Original Panel Report, para. 7.535.  WT/DS484/19  
 
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  Subsequent Measures  
17. This request for the establishment of a panel also concerns any amendments or extensions to 
the measures identified above, any replacement measures, and any implementing measures, as well 
as any subsequent closely connected measures that are adopted by Indonesia.  
III. Legal Bases  
18. Brazil considers that Indonesia has failed to bring its measures into conformity  with the 
covered agreements.  The measures described in section II above fail to bring Indonesia into 
compliance because, inter alia : 
• The positive list requirement continues to be inconsistent with Article XI:1 of the GATT 1994 
insofar as it constitutes a  prohibition or restriction other than duties, taxes or other charges, 
whether made effective through quotas, import or export licences or other measures, 
instituted or maintained by Indonesia on the importation of products of the territory of other 
Member s; 
• The positive list requirement is inconsistent with Article 4.2 of the Agreement on Agriculture 
and footnote 1 thereto insofar as it constitutes a measure of the kind which has been required 
to be converted into ordinary customs duties and which Indonesi a is prohibited from 
maintaining, resorting to, or reverting to;  
• The intended use requirement and its enforcement provisions continue to be inconsistent 
with Article III:4 of the GATT 1994 insofar as they accord products of the territories of other 
Members imported into the territory of Indonesia treatment less favourable than that 
accorded to like products of Indonesian origin in respect of laws, regulations and 
requirements affecting their internal sale, offering for sale, purchase, transportation,  
distribution or use;  
• The intended use requirement and its enforcement provisions are inconsistent with 
Article  XI:1 of the GATT 1994 insofar as they constitute a prohibition or restriction other 
than duties, taxes or other charges, whether made effective through quotas, import or 
export licences or other measures, instituted or maintained by Indonesia on the importation 
of products of the territory of other Members;  
• The fixed licence terms are inconsistent with Article XI:1 of the GATT 1994 insofar as the y 
constitute a prohibition or restriction other than duties, taxes or other charges, whether 
made effective through quotas, import or export licences or other measures, instituted or 
maintained by Indonesia on the importation of products of the territory o f other Members; 
and 
• Indonesia 's failure to undertake and complete the approval procedures for the veterinary 
health certificate continues to be inconsistent with Annex C(1)(a) and Article 8 of the SPS 
Agreement insofar as Indonesian authorities have faile d to ensure that such procedures are 
undertaken and completed without undue delay.   
19. Accordingly, Brazil requests that the DSB establish a panel to examine this matter, with the 
standard terms of reference as set out in Article 7.1 of the DSU, resorting to the original panel if 
possible.  
20. Brazil recalls that, pursuant to paragraph 3 of the Agreed Procedures, Indonesia has agreed 
to accept the establishment of the panel at the first DSB meeting at which a request for the 
establishment of an Article 21.5 panel appears on the agenda.  
21. Brazil asks that this request be placed on the agenda for the meeting of the DSB to be held 
on 24 June 2019.  
__________