WT/DS467/19  
 
27 October 2014  
(14-6238)  Page: 1/18  
  Original: English  
 
 AUSTRALIA – CERTAIN MEASURES CONCERNING TRADEMARKS,  
GEOGRAPHICAL INDICATIONS AND OTHER PLAIN PACKAGING REQUIREMENTS  
APPLICABLE TO TOBACCO PRODUCTS AND PACKAGING 
COMMUNICATION FROM THE PANEL 
The following communication, dated 22 October 2014, was received from the Chairperson of the 
Panel with the request that it be circulated to the Dispute Settlement Body (DSB). 
 
_______________ 
  
On 7 May 2014, Australia submitted to the Panel a request for a preliminary ruling concerning the 
consistency of Indonesia's request for the establishment of a Panel (WT/DS467/15) with Article 6.2 of the Understanding on Rules and Procedures Governing the Settlement of Disputes. 
 
On 19 August 2014, the Panel issued the attached  preliminary ruling to the parties and third 
parties.   
 
After consulting the parties to the dispute, the Panel decided to inform the Dispute Settlement Body (DSB) of the content of its preliminary ruling .  Therefore, I would be grateful if you would 
circulate this letter and the attached pre liminary ruling to the Members of the DSB. 
  WT/DS467/19 
 
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  PRELIMINARY RULING BY THE PANEL 
 
1   PROCEDURAL BACKGROUND ....................................................................................... 2  
2   AUSTRALIA'S REQUEST FO R A PRELIMINARY RULING ................................................ 2  
3   MAIN ARGUMENTS OF THE PARTIES ........................................................................... 2  
3.1   Au stralia ............................................................................................................... ... 2 
3.2   Indonesia ............................................................................................................... .. 6 
4   MAIN ARGUMENTS OF  THE THIRD PARTIES ................................................................ 8  
5   ANALYSIS BY  THE PANEL ............................................................................................ 9  
5.1   The requirement to "identify the specific measur es at issue" ........................................... 10 
5.2   Whether Indonesia's panel request iden tifies the specific measures at issue ...................... 14 
 
 1  PROCEDURAL BACKGROUND 
1.1.  On 7 May 2014, Australia submitted to the Panel a request for a preliminary ruling concerning 
the consistency of Indonesia's panel request with the DSU. 
1.2.  Australia requested that the Panel make a preliminary ruling on this matter as early as 
possible (and in particular, that the Panel issue its preliminary ruling before the filing of first 
written submissions by the parties). Australia also requested the opportunity to respond to any submissions made by Indonesia in relation to this preliminary ruling request. 
1.3.  On 11 June 2014, Indonesia responded to Australia's requests. Also on 11 June 2014, the 
Panel provided the third parties with an opportunity to comment on Australia's preliminary ruling 
request. On 17 June 2014, the Panel received comments from the European Union. On 18 June 2014, the Panel received comments from Argentina, the Dominican Republic, Guatemala, 
Honduras and Mexico. 
1.4.  On 1 July 2014, the Panel received comments from Australia on Indonesia's response to 
Australia's request for a preliminary ruling. Indonesia did not submit further comments on 
Australia's comments. 
2  AUSTRALIA'S REQUEST FOR A PRELIMINARY RULING 2.1.  Australia requests that the Panel make a preliminary ruling excluding from its terms of 
reference "the non-exhaustive list of related me asures and measures that 'complement or add to' 
the measures explicitly identified in Indonesia's panel request", on the basis that the panel request 
does not identify the specific measures at issue co ntrary to the requirements of Article 6.2 of the 
DSU.
1 
2.2.  We first describe below the arguments of the parties and third parties, before proceeding 
with our assessment of Australia's request. 
3  MAIN ARGUMENTS OF THE PARTIES 
3.1  Australia 
3.1.  Australia requests the Panel to exclude from the Panel's terms of reference the non-
exhaustive list of related measures and measures that "complement or add to" the measures 
                                               
1 Australia's request for a prelimin ary ruling in relation to Indo nesia's panel request, para. 1. WT/DS467/19 
 
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  explicitly identified in Indonesia's panel request on  the basis that the request does not identify the 
specific measures at issue, contrary to the requir ements of Article 6.2 of the DSU. In particular, 
Australia submits that Indonesia's panel request should instead read: 
Any related measures adopted by Australia, including measures that implement, 
complement or add to these laws and regulations, as well as any measures that 
amend or replace these laws and regulations.2 
3.2.  Australia submits that, as a responding party, it  is entitled to know the case it is required to 
answer and that the deficiencies in Indonesia's panel request have prejudiced, and continue to 
prejudice, the preparation of Australia's defence,  thereby violating its "fundamental right to due 
process in these proceedings".3 
3.3.  Australia submits that it is crucial that a complainant identify in its panel request the specific 
measures at issue as required by Article 6.2 of  the DSU because this sets the panel's terms of 
reference and serves an important due process objective.4 Referring to the Oxford English 
Dictionary, Australia submits that "specific" is defined as "[s]pecially or peculiarly pertaining to a 
particular thing or person, or a class of these… clearly or explicitly defined; precise, exact; 
definite".5 Australia argues that a complaining party must therefore establish the identity of the 
precise measures at issue.6 Australia further submits that , in determining consistency with 
Article 6.2 of the DSU, a panel must "analyse whether the measures that the complaining party is 
contesting were identified such that the respondent party received 'adequate notice'" of the measures at issue.
7 
3.4.  Australia argues that Indonesia's panel request does not identify the specific measures at 
issue in two key ways. Specifically, Australia challenges: (i) the use of the term "including", which 
defines the "related measures" in a non-exhaustive way; and (ii) the attempt to include unspecified measures that "complement or add to" those explicitly named in the panel request 
("complementary or additional measures").
8 
3.5.  In relation to the use of the word "includi ng", Australia argues that Indonesia "attempts to 
include a non-exhaustive and therefore indeterminat e list" of "related measures" within the Panel's 
terms of reference. As a result, Indonesia has not provided Australia with adequate notice of the 
measures being challenged, "or even a complete and specific list" of the "related measures" that it 
purports to challenge.9 Australia draws an analogy with the panel request in China – Raw 
Materials , in which the complainants preceded the list  o f  c h a l l e n g e d  m e a s u r e s  w i t h  t h e  p h r a s e  
"among others". The panel concluded that the compla inants could not use this phrase to include an 
"open-ended" list of measures, as this would "not contribute to the 'security and predictability' of the WTO dispute settlement system".
10 Australia notes that, in that dispute, only those measures 
that were explicitly identified by the complainants fell within the panel's terms of reference.11 
Australia submits that the issue before that panel is analogous to the one presented in Indonesia's 
panel request. In particular, apart from the cate gories of "related measures" actually listed, 
Indonesia provides no indication of what "other forms" such unspecified measures could take. 
Australia therefore argues that it has not been provided with notice of the measures under 
                                               
2 Australia's request for a prelimin ary ruling in relation to Indo nesia's panel request, para. 1. 
3 Australia's request for a prelimin ary ruling in relation to Indo nesia's panel request, para. 2. 
4 Australia's request for a preliminar y ruling in relation to Indonesi a's panel request,  para. 4 (citing 
Panel Report, Canada – Wheat Exports and Grain Imports , para. 6.10). 
5 Australia's request for a preliminar y ruling in relation to Indonesi a's panel request,  para. 5 (citing 
Shorter Oxford English Dictionary , (6th ed., 2007), p. 2944). 
6 Australia's request for a preliminar y ruling in relation to Indonesi a's panel request,  para. 5 (citing 
Panel Report, Canada – Wheat Exports and Grain Imports , para. 6.10). 
7 Australia's request for a preliminar y ruling in relation to Indonesi a's panel request,  para. 5 (citing 
Panel Report, China – Publications and Audiovisual Products , para. 7.20). 
8 Australia's request for a prelimin ary ruling in relation to Indo nesia's panel request, para. 8. 
9 Australia's request for a prelimin ary ruling in relation to Indo nesia's panel request, para. 9. 
10 Australia's request for a preliminar y ruling in relation to Indonesi a's panel request, para. 10 (citing 
Panel Reports, China – Raw Materials , Annex F-1, 'First Phase of Preliminary Ruling', para. 12, p. F-6). 
11 Australia's request for a preliminar y ruling in relation to Indonesi a's panel request, para. 10 (citing 
Panel Reports, China – Raw Materials , Annex F-1, 'First Phase of Preliminary Ruling', para. 13, p. F-6). WT/DS467/19 
 
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  challenge, which creates "considerable uncertainty " as to the identity, number and content of the 
measures at issue.12  
3.6.  In relation to "complementary or addition al measures", Australia submits that Indonesia's 
panel request fails to identify the specific measures at issue because it provides no guidance on 
what it means when it refers to measures that "complement or add to" the listed instruments. 
Australia argues that this adds further to the uncertainty regarding the identity, number and content of the laws and regulations under challenge, and "forces Australia to speculate regarding 
the measures at issue if it is to begin to prepare its defence".
13 Australia submits that Indonesia's 
panel request impermissibly shifts the burden of attempting to identify the complementary or additional measures at issue to Australia.
14 
3.7.  Australia notes that whether a panel request identifies the specific measures at issue may 
depend on the particular context in which those measures operate and may require examining the 
extent to which they are capable of being precisely identified.15 Australia submits that in the 
specific context of tobacco regulation, Indonesia's attempt to include complementary or additional 
measures does not identify the "precise, exact or definite measures at issue" and fails to provide 
Australia with adequate notice of these measures.16 
3.8.  Australia submits that "the uncertainty re garding the scope of the related measures arises 
because of the particular context in which Australia's tobacco plain packaging measure exists and 
operates, namely as part of a comprehens ive range of complementary tobacco control 
measures".17 It considers that in this context, the references in the panel request of Indonesia to a 
non-exhaustive list of "related" measures, "inclu ding" those that "complement" or "add to" the 
named measures, are not sufficient to identify the specific measures at issue in this dispute. 
Rather, Australia submits that the inclusion of "t hese broad and vague terms" in a dispute that 
concerns one of Australia's tobacco control measures (that is, tobacco plain packaging in its 
context as part of a complementary range of tobacco control measures) does not identify 
sufficiently the scope of the measures at issue such that Australia is informed of the case it has to answer.
18 
3.9.  Australia notes that, "in speculating about the possible complementary or additional 
measures that Indonesia purports to challenge, Australia has had cause to consider that, in line with established international best practice, its tobacco plain packaging measure is part of a comprehensive range of tobacco control measures". Australia submits that this comprehensive 
approach to tobacco control is mandated by the World Health Organization Framework Convention 
on Tobacco Control (FCTC). Australia notes that this treaty currently has 178 parties and was developed "in response to the globalisation of the tobacco epidemic". Australia notes that the FCTC 
emphasizes that "comprehensive multisectoral measures and responses" to reduce consumption of 
all tobacco products are essential to prevent the incidence of diseases, premature disability and mortality due to tobacco consumption and exposure to tobacco smoke.
19 Australia also observes 
that the FCTC "mandates" that each party to it  "develop, implement, periodically update and 
review comprehensive multisectoral national tobacco control strategies, plans and programmes"  in 
accordance with the FCTC.20 
                                               
12 Australia's request for a preliminar y ruling in relation to Indonesia' s panel request, pa ra. 10 (referring 
to Panel Report, Canada – Wheat Exports and Grain Imports , para. 6.10). 
13 Australia's request for a prelimin ary ruling in relation to Indo nesia's panel request, para. 12. 
14 Australia's request for a preliminar y ruling in relation to Indonesia' s panel request, pa ra. 12 (referring 
to Panel Report, Canada – Wheat Exports and Grain Imports , para. 6.10). 
15 Australia's request for a preliminar y ruling in relation to Indonesi a's panel request, para. 13 (citing 
Appellate Body Reports, China – Raw Materials , para. 220). 
16 Australia's request for a prelimin ary ruling in relation to Indo nesia's panel request, para. 14. 
17 Australia's comments on responses to Australia ’s requests for prelimin ary rulings, para. 29. 
18 Australia's comments on responses to Australia ’s requests for prelimin ary rulings, para. 30. 
19 Australia's request for a preliminar y ruling in relation to Indonesi a's panel request, para. 15 (citing 
the WHO Framework Convention on Tobacco Control (FCTC), done at Geneva, 3 May 2003, 2302 U.N.T.S.166; 
42 International Legal Materials 518, Article 4.4). 
20 Australia's request for a preliminar y ruling in relation to Indonesi a's panel request, para. 16 (citing 
the WHO Framework Convention on Tobacco Control (FCTC), done at Geneva, 3 May 2003, 2302 U.N.T.S.166; 
42 International Legal Materials 518, Article 5.1). WT/DS467/19 
 
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  3.10.  Australia notes that if "general tobacco control measures" are "indeed the types of 
complementary or additional measures Indonesia refers to in its panel request (which is not clear and is a matter of speculation)", Australia's tobacco control measures "span back decades" and have been implemented at the federal, state and territory, and local municipality level. Australia 
asserts that it has implemented its tobacco plain packaging measure as part of a comprehensive 
range of measures in order to achieve its public health objectives, "in line with its FCTC obligations". Australia's identifies a large number of measures included in its "comprehensive 
range of tobacco control measures".
21 It adds that this is a non-exhaustive list, and that each of 
these measures includes multiple laws and regulations that may have been adopted at the federal, state or local level, such that Australia's tobacco control measures number in the hundreds. Australia argues that it "cannot be the case that Indonesia intends to challenge every current or 
future tobacco control measure implemented in Australia" and that, in these circumstances, 
Indonesia is obliged to identify the specific measures at issue so that Australia is informed of the case it has to answer.
22 
3.11.  Australia adds that if Indonesia's reference to complementary or additional measures "is 
intended to refer to certain tobacco control measures currently in force in Australia (apart from tobacco plain packaging), there is no reason why these measures could not be explicitly named, 
other than to prejudice Australia's defence". Australia argues that this is in contrast to amending 
measures which may not come into existence until after a panel request is submitted and therefore may legitimately be listed by category rather than by the unknown future name of the 
amending law or regulation.
23  
3.12.  In sum, Australia considers that Indonesia has not identified the specific measures at issue 
in a way that is "precise", "exact" or "definite", contrary to Article 6.2 of the DSU, and has not provided reasonable notice to Australia as to the case it has to answer.
24 Observing that "where a 
panel request fails to identify adequately particular measures or fails to specify a particular claim, 
then such measures or claims will not form part of the matter covered by the panel's terms of reference"
25, Australia requests that the Panel find that its terms of reference are limited to the 
measures specifically identified in the panel request, and that the remainder of its terms of 
reference be limited in the following manner set out in paragraph 3.1 above. 
3.13.  Australia notes that "a deficient panel request will fail to meet the requirements of 
Article 6.2 of the DSU regardless of whether the respon dent is able to defend itself", but also that 
the deficiencies in Indonesia's panel request have in fact prejudiced Australia's ability to defend 
itself in this dispute.26 Australia observes that "[i]n a WTO dispute, the complainant decides when 
to bring its dispute, and may therefore take as much time as it needs to prepare its offensive case. 
By contrast, a responding party has only a limited timeframe in which to respond to the 
complainant's first written submission." Australia submits that it is therefore critical that a panel request provide a responding party with sufficient clarity as to the case it has to answer in advance 
of receiving the complainant's first written submission, and notes that "[t]his due process 
requirement 'is fundamental to ensuring a fa ir and orderly conduct of dispute settlement 
proceedings'".
27 In light of this, Australia argues that a panel request should be examined very 
                                               
21 Australia specifically identifies "increasing excise and excise-equivalent customs duty on tobacco and 
tobacco-related products; minimum age restrictions on the purchase and sale of tobacco products; 
comprehensive bans on tobacco advert ising and promotion, including bans on internet advertising of tobacco 
products; retail display bans; bans on smoking in office s, bars, restaurants and other indoor public spaces, and 
increasingly outdoor places, particularly those wher e children may be exposed to environmental tobacco 
smoke; extensive and continuing public education camp aigns on the dangers of smoking; compulsory health 
warnings on the packaging of tobacco products; the listing of nicotine replacement therapies and other 
smoking cessation supports on Australia's Pharmaceutical Benefits Scheme; "Quitlines" and other smoking cessation support services; investment in anti-smoking social marketing campaigns; support for Aboriginal and 
Torres Strait Islander communities to  reduce smoking rates; and stronger penalties for people convicted of 
tobacco smuggling offences". 
22 Australia's request for a prelimin ary ruling in relation to Indone sia's panel request, paras. 17-18. 
23 Australia's request for a prelimin ary ruling in relation to Indo nesia's panel request, para. 19. 
24 Australia's request for a prelimin ary ruling in relation to Indo nesia's panel request, para. 20. 
25 Australia's request for a preliminar y ruling in relation to Indonesia' s panel request, para. 22 (quoting 
Appellate Body Report, Dominican Republic – Import  and Sale of Cigarettes , para. 120). 
26 Australia's request for a prelimin ary ruling in relation to Indo nesia's panel request, para. 23. 
27 Australia's request for a preliminar y ruling in relation to Indonesi a's panel request, para. 24 (citing 
Appellate Body Report, Thailand – H-Beams , para. 88). WT/DS467/19 
 
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  carefully to ensure its compliance with both the letter and the spirit of Article 6.2 of the DSU.28 
Citing the Appellate Body, Australia argues that prejudice is to be determined on the basis of whether a defending party was made aware of the claims presented by the complaining party, sufficient to allow it  to defend itself.
29 
3.14.  Australia also notes that defects in a panel request cannot be cured by subsequent 
submissions of the parties during the panel proceedings30, and that compliance with the 
requirements of Article 6.2 must be demonstrated on the face of the request for the establishment 
of a panel.31 Australia therefore submits that Indonesia cannot overcome the deficiencies in its 
panel request by clarifying the legal basis of this claim in its first written submission. 
3.2  Indonesia 3.15.  Indonesia requests the Panel to reject Australia's request because (i) Indonesia has met the 
requirements of Article 6.2 of the DSU as there is  no ambiguity in its panel request regarding the 
measures at issue; (ii) Australia's objection is premature and without merit; and (iii) "while Indonesia could suffer prejudice as a result of Australia's proposed terms of reference, the reverse 
is not true".
32   
3.16.  Turning first to the requirements of Article 6.2, Indonesia characterizes as mistaken 
Australia's assertion that the obligation to identify the specific measures at issue means that a 
panel request must establish the "precise, exact" or  "definite" identity of the measures at issue. 
Referring to the Appellate Body, Indonesia stressed th at "the identification of a measure within the 
meaning of Article 6.2 need be framed only with sufficient particular[ity] [ ]so as to indicate the 
n a t u r e  o f  t h e  m e a s u r e  a n d  t h e  g i s t  o f  w h a t  i s  a t  i s s u e " .33 Indonesia also notes that a panel 
request, though it allows the respondent to begin preparing its defence, does not amount to a 
requirement allowing the defendant to fully de velop its defence on the sole basis of the 
complainant's request.34 
3.17.  Indonesia first submits that Australia's challenge lacks merit because there is no true 
ambiguity in its panel request. Indonesia observes that Australia's specific objection to Indonesia's panel request is that the words "including", "com plement," and "add to" create a non-exhaustive 
list of measures that could conceivably include Australia's entire tobacco control regime. Indonesia 
argues that, when read in context, this provision allows the Panel to address only those plain packaging measures that are not specifically listed in the panel request.
35 Indonesia observes that 
these terms are qualified by the term "related meas ures," in direct reference to the three specific 
plain packaging measures listed in the immediately preceding bullet point in Indonesia's panel 
request. The terms are also qualified by the descrip tion of their function in the next paragraph of 
Indonesia's request, which describes the measures at issue as those that "establish comprehensive 
requirement[s] regarding the appearance and form of the retail packaging of tobacco products …". 
Indonesia submits that the plain language of the panel request indicates that "there can be no mistaking Indonesia's intent to challenge only measures that are directly related to Australia's 
tobacco plain packaging regime".
36 
                                               
28 Australia's request for a preliminar y ruling in relation to Indonesi a's panel request, para. 24 (citing 
Appellate Body Reports, EC – Bananas (III) , para. 142 and Korea – Dairy , para. 130). 
29 Australia's request for a preliminar y ruling in relation to Indonesi a's panel request, para. 25 (citing 
Appellate Body Report, Thailand – H-Beams , para. 95). 
30 Australia's request for a preliminar y ruling in relation to Indonesi a's panel request, para. 28 (citing 
Appellate Body Report, US – Carbon Steel , para. 127). 
31 Australia's request for a preliminar y ruling in relation to Indonesi a's panel request, para. 28 (citing 
Appellate Body Report, US – Carbon Steel , para. 127). 
32 Indonesia's response to Australia 's request for a preliminary ruling in relation to Indonesia's panel 
request, para. 1. 
33 Indonesia's response to Australia 's request for a preliminary ruling in relation to Indonesia's panel 
request, para 4 (citing Appellate Body Report, US – Continued Zeroing , paras. 168-169). 
34 Indonesia's response to Australia 's request for a preliminary ruling in relation to Indonesia's panel 
request, para. 5 (citin g Preliminary Ruling, India – Agricultural Products , para. 3.3). 
35 Indonesia's response to Australia 's request for a preliminary ruling in relation to Indonesia's panel 
request, para. 6. 
36 Indonesia's response to Australia 's request for a preliminary ruling in relation to Indonesia's panel 
request, para. 8. WT/DS467/19 
 
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  3.18.  Indonesia refers to Australia's reliance on China – Raw Materials , in which case "there was 
actual ambiguity as to the complainant's intent". Indonesia submits that the circumstances of that 
case are "manifestly not the case in the presen t dispute". Indonesia argues that the terms of 
reference strike the proper balance between spec ificity and flexibility, and are neither vague nor 
"open-ended" in scope. Indonesia argues that "Australia feigns confusion in its Preliminary Ruling 
Request by 'speculating' that the panel request could be read as a challenge to a long list of tobacco control measures unrelated to Australia's plain packaging regime", but that this position is 
unpersuasive given that Indonesia refers to "measures relating to plain packaging" throughout its 
panel request.
37 Indonesia argues that it has, therefore, satisfied its obligation under Article 6.2 of 
the DSU to provide Australia with a specific indication of the measures at issue and a sufficiently clear presentation of the dispute.
38 
3.19.  Indonesia argues that the Panel may find fu rther confirmation of the intended scope of this 
dispute in the attendant circumstances. Indonesi a notes that its statements at the DSB, the 
Council for TRIPS, and the TBT Committee, Indonesia and its "co-complainants" have consistently 
focused on Australia's plain packaging requirements and no other facet of Australia's tobacco 
control regime. Neither Indonesia nor Australia "have ever raised in these fora any of the 'multiple laws and regulations that may have been adopted at the federal, state or local level' that 'number 
in the hundreds,' of which Australia is now seemingly concerned".
39 Indonesia argues that it is not 
its intention to challenge every current or fu ture tobacco control measure implemented in 
Australia, and that the measures at issue are limited to those measures relating to plain packaging requirements.
40 
3.20.  Indonesia also argues that Australia's objections are premature and unnecessary. Given that 
Indonesia's panel request satisfies the requirements  of Article 6.2, the challenged language in 
Indonesia's panel request does not prejudice Austra lia's interests. Indonesia is of the view that 
Australia's objection would be more appropriately raised in response to the identification by 
Indonesia of a specific measure it believes would fall within the scope of the challenged language. Indonesia argues that this approach is in line with the preliminary ruling of the panel in India – 
Agricultural Products , in which the panel noted that disputes regarding whether a related measure 
falls within a panel's terms of reference have typically arisen after  the complainant sought to 
challenge a particular legal instrument not specifically referenced in the panel request.
41 That 
panel noted that no "related" measure had been rais ed in the dispute before it and, therefore, it 
was "premature and indeed unnecessary to make a determination in the abstract, at this 
preliminary stage, as to precisely which measures fell within the Panel's terms of reference by virtue of the inclusion of the terms "related measures, or implementing measures" in the panel 
request.
42 Indonesia submits that similar circumstance s exist in the instant dispute. Indonesia 
observes that it is yet to make submissions to the Panel, and that Australia is speculating at this juncture about what possible measures Indonesia may raise. Indonesia submits that if Australia 
wishes to challenge a particular measure raised by Indonesia pursuant to the challenged language 
falling outside the terms of reference of the Pa nel, it will have every opportunity to do so. 
Indonesia submits that, [u]ntil written briefing in this case has commenced, as was the case in India – Agricultural Products , it is premature and indeed unnecessary for the Panel to opine on 
Australia's request.
43 
3.21.  Indonesia argues that the challenged langua ge is necessary to protect Indonesia's interests. 
Specifically, Indonesia stated that it is necessary to protect Indonesia's rights should Australia 
                                               
37 Indonesia's response to Australia 's request for a preliminary ruling in relation to Indonesia's panel 
request, pa ras. 9-10. 
38 Indonesia's response to Australia 's request for a preliminary ruling in relation to Indonesia's panel 
request, para. 11. 
39 Indonesia's response to Australia 's request for a preliminary ruling in relation to Indonesia's panel 
request, para. 12 (citing Aust ralia's request for a preliminary ruling in relation to Indonesi a's panel request, 
para. 18.) 
40 Indonesia's response to Australia 's request for a preliminary ruling in relation to Indonesia's panel 
request, para. 12. 
41 Indonesia's response to Australia 's request for a preliminary ruling in relation to Indonesia's panel 
request, para. 14 (referring to Preliminary Ruling, India – Agricultural Products , para. 3.49). 
42 Indonesia's response to Australia 's request for a preliminary ruling in relation to Indonesia's panel 
request, para. 15 (citing Preliminary Ruling, India – Agricultural Products , para. 3.50). 
43 Indonesia's response to Australia 's request for a preliminary ruling in relation to Indonesia's panel 
request, para. 16. WT/DS467/19 
 
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  adopt measures that are closely connected to the plain packaging measures listed in Indonesia's 
panel request, or change the legal nature of the existing plain packaging measures (e.g., by 
withdrawing and reissuing measures in a slightly different form) during the course of the Panel proceeding. Indonesia adds that this precise circumstance arose in EC – Chicken Cuts , whereby 
Brazil was unable to challenge new regulations because its panel request did not allow for 
sufficient flexibility to include additional measures other than those specifically listed in its request.
44 
3.22.  Indonesia argues, on the basis of prior jurisprudence45, that because measures that come 
into existence during the course of the Panel's proceeding may be challenged only if  the panel 
request is sufficiently broad to allow for it, Indone sia's procedural rights could be impaired if the 
challenged language is struck from its panel request.46 
3.23.  For these reasons, Indonesia submits that the Panel should reject Australia's request for a 
preliminary ruling to revise the terms of reference included in Indonesia's panel request.  
4  MAIN ARGUMENTS OF THE THIRD PARTIES 
4.1.  Argentina  considers that, reading the panel requests as a whole and taking into account the 
context of the paragraph in question, it is clear from the text of the challenged paragraph that the complementary or additional measures concerned are directly related to Australia's plain 
packaging legislation. Argentina submits that among those related measures are the measures 
that are included, be they measures that complement or add to these laws and regulations. Argentina submits that the text of Indonesia's request refers to the measures that constitute the plain packaging legislation, and not to any other type of measure with no connecting link other 
than a reference to tobacco or health.
47 Argentina considers that the terms at issue "are included 
in claims, and that those claims in turn are pr esented collectively and under the same heading: 
tobacco plain packaging measures, for which reason Argentina believes that the measures are 
presented in a clear and distinct manner and that  the scope of the complaints is, therefore, 
precise".48 Argentina therefore argues that it is un necessary to make the changes requested by 
Australia.49 
4.2.  The Dominican Republic  considers that the Panel should reject Australia's request, for the 
same reasons as it has invoked in respect of Australia's similar request concerning its own panel request.
50 
4.3.  The European Union  submits that Australia's concerns regarding the specific measure at 
issue have been expressly and specifically allaye d by Indonesia. The European Union notes that 
this issue appears to be moot and is likely to  remain so. It therefore suggests that the Panel 
consider deferring a ruling on this matter to a later stage of the proceedings, following a similar 
approach to that of the Panel in India – Agricultural Products .51 
4.4.  Guatemala  observes that the "co-complainants" consistently refer to the challenged 
measures as "plain packaging measures" and that the words "including", "complement" and "add 
to" appear to be limited to the reference to plain packaging measures.52 Guatemala adds that 
nothing in the text of the panel requests appears to support the view that there "is uncertainty regarding the identity, number and content of the laws and regulations under challenge." Guatemala states that "[t]he fundamental problem with Australia's objections seems to be 
requesting the Panel to make a determination in the abstract", and that the circumstances in India 
                                               
44 Indonesia's response to Australia 's request for a preliminary ruling in relation to Indonesia's panel 
request, para. 18 (citing Panel Report, EC − Chicken Cuts , paras. 7.28-7.29). 
45 Indonesia's response to Australia 's request for a preliminary ruling in relation to Indonesia's panel 
request, paras. 19-20 (discussing Panel Reports, US — Continued Zeroing,  and EC — IT Products ). 
46 Indonesia's response to Australia 's request for a preliminary ruling in relation to Indonesia's panel 
request, para. 21. 
47 Argentina's third-party comments on Australia's requests for preliminary rulings, paras. 9-15. 
48 Argentina's third-party comments on Australia' s requests for preliminary rulings, para. 22. 
49 Argentina's third-party comments on Australia' s requests for preliminary rulings, para. 24. 
50 The Dominican Republic's third-party comments on  Australia's requests for preliminary rulings, 
para. 4. 
51 The European Union's third-party comments on Australia' s requests for preliminary rulings, para. 33. 
52 Guatemala's third-party comments on Australia's  requests for preliminar y rulings, para. 2.8. WT/DS467/19 
 
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  – Agricultural Products could be "extrapolated" to the circumstances in the present cases. Finally, 
Guatemala states that Australia cannot obtain an order from the Panel which effectively modifies the panel request by striking out parts of its language, as the panel request is not subject to amendments, once a panel is established.
53 
4.5.  Honduras  argues that there is no basis in the text of Indonesia's panel request for Australia 
to claim that it is unclear which, if any, of Australia's current or future tobacco control measures Australia is required to defend in addition to the plain packaging measure. Honduras adds that the 
additional measures listed in Australia's request would clearly not be "plain packaging measures" 
and would not be considered measures that are "related" to three specific legal instruments, all of which regulate the packaging of tobacco products.
54  
4.6.  Honduras argues that Australia's objection to the use of the term "including" lacks merit 
because the narrative description of the measure, to gether with the identification of three specific 
legal instruments and the residual sub-category of  "related" measures, identify the measures at 
issue as plain packaging measures with sufficient precision. For Honduras, the listing of particular 
examples within that residual sub-category or "related" measures (through the use of the term 
"including") logically cannot create an impermissible open-ended list of measures.55 In addition, 
Honduras argues that Australia's objection to the use of the terms "complement" and "add to" also 
lacks merit as the terms "complement" or "add to" "textually must refer to those measures that 
are related to the plain packaging measures".56 
4.7.  Honduras adds that residual clauses of the kind used by Indonesia are "an important tool by 
which complainants preserve their right to mainta in within a panel's terms of reference future 
measures that do not alter the essence of the existing measures".57 
4.8.  Honduras also believes that Australia's re quest is premature and that it is therefore not 
necessary for the Panels to address Australia's concerns at this point in time. Specifically, there is 
no evidence that the complainants may be planning to challenge a measure that does not fall 
"within the four corners" of thei r panel requests, and as such Honduras submits that the current 
circumstances are the same as those in India – Agricultural Products . It would therefore be more 
prudent for the Panel to revisit this issue if the complainant attempts to include measures within 
the Panel's terms of reference that are not "related", "complement" or "add to" the plain packaging measures.
58 
4.9.  In Mexico's  view, Australia's objection concerni ng the words "including measures", 
"complement" and "add to" may be resolved at a later stage in the proceedings. Mexico believes 
that the same approach could be taken in the present case as was taken by the Panel in India – 
Agricultural Products , which determined that it was premature and unnecessary to make a 
determination in the abstract at a preliminary stage as to which measures fall within the Panel's 
terms of reference. Mexico adds that the Panel could rule as the case progresses and on the basis of the terms of reference which specific meas ures are included in the terms of reference.
59 
5  ANALYSIS BY THE PANEL 
5.1.  The question before us is whether Indonesia's panel request is consistent with the 
requirement under Article 6.2 of the DSU to identify  the specific measure at issue. In particular, 
Australia challenges the use of the words "including", and "complement or add to" in Indonesia's 
panel request: 
Any related measures adopted by Australia, including  measures that implement, 
complement or add to  these laws and regulations, as well as any measures that 
amend or replace these laws and regulations. 
                                               
53 Guatemala's third-party comments on Australia's requests for prelim inary rulings, pa ras. 2.1-2.13. 
54 Honduras' third-party comments on Australia's re quests for preliminary rulings, paras. 5-13. 
55 Honduras' third-party comments on Australia's re quests for preliminary rulings, para. 14-17. 
56 Honduras' third-party comments on Australia's requests for preliminary rulings, para. 19. 
57 Honduras' third-party comments on Australia's re quests for preliminary ru lings, paras. 20-21. 
58 Honduras' third-party comments on Australia's re quests for preliminary ru lings, paras. 22-24. 
59 Mexico's third-party co mments on Australia's re quests for preliminary ru lings, paras. 27-28. WT/DS467/19 
 
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  5.2.  As described above, Australia submits that "the use of the term 'including', which defines the 
'related measures' in a non-exhaustive way", and "the attempt to include unspecified measures that 'complement or add to' those explicitly named in the panel request" indicate that Indonesia's panel request does not specify the measures at issue.
60 Indonesia, for its part, submits that "the 
Panel should reject Australia's Preliminary Ruling Request because (i) Indonesia has met the 
requirements of Article 6.2 of the [DSU] in that th ere is no ambiguity in its Panel Request as to the 
measures at issue; (ii) Australia's objection is premature and without merit; and (iii) while 
Indonesia could suffer prejudice as a result of Australia's proposed terms of reference, the reverse 
is not true".61 
5.3.  We first consider the requirements of Arti cle 6.2 in respect of the identification of the 
measures at issue, before turning to our assessment of Indonesia's panel request in light of these 
requirements. 
5.1  The requirement to "identify the specific measures at issue" 
5.4.  Article 6.2 of the DSU provides as follows: 
The request for the establishment of a panel shall be made in writing. It shall indicate 
whether consultations were held, identify the specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem 
clearly.   
5.5.  As described by the Appellate Body, Articl e 6.2 contains two distinct requirements, namely 
(1) the identification of the specific measures at  issue and (2) the provision of a brief summary of 
the legal basis of the complaint (or the claims).
62 Together, these elements comprise the "matter 
referred to the DSB", which forms the basis for a panel's terms of reference under Article 7.1 of 
the DSU.63  
5.6.  Article 6.2 serves the function of esta blishing and delimiting the panel's jurisdiction.64 It 
serves a "pivotal function" in WTO dispute settlement65 in that, to the extent that a panel request 
fails to identify "the specific measures at issue" and/or "to provide a brief summary of the legal basis of the complaint", such measures and/or claims do not fall within a panel's terms of 
reference and that panel would not have jurisdiction to make findings in respect of them.
66 
5.7.  In addition, by establishing and defining the jurisdiction of the panel, the panel request fulfils 
the due process objective of providing the responde nt and third parties notice regarding the nature 
of the complainant's case67 to enable them to respond accordingly.68 
                                               
60 Australia's request for a prelimin ary ruling in relation to Indo nesia's panel request, para. 8. 
61 Indonesia's response to Australia 's request for a preliminary ruling in relation to Indonesia's panel 
request, para. 1. 
62 Appellate Body Reports, China – Raw Materials , para. 219; and EC and certain member States – 
Large Civil Aircraft , para. 639. 
63 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China) , para. 4.6 (citing 
Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 639 (referring to Appellate 
Body Reports, Guatemala – Cement I , paras. 72-73; US – Carbon Steel , para. 125; US – Continued Zeroing , 
para. 160; US – Zeroing (Japan) (Article 21.5 – Japan) , para. 107; and Australia – Apples , para. 416). 
64 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China) , para. 4.6 (citing 
Appellate Body Reports, Brazil – Desiccated Coconut , p. 22, DSR 1997:I, p. 186; US – Continued Zeroing , 
para. 161; and EC and certain member States – Large Civil Aircraft , para. 640). 
65 Appellate Body Reports, China – Raw Materials , para. 219.  
66 See, for example, Appellate Body Report, US – Continued Zeroing , para. 161 ("[A]s a panel's terms of 
reference are established by the claims raised in panel requests, the co nditions of Article 6.2 serve to define 
the jurisdiction of a panel".) 
67 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China) , para. 4.7 (citing 
Appellate Body Reports, Brazil – Desiccated Coconut , p. 22, DSR 1997:I, p. 186; US – Carbon Steel , 
para. 126; and EC and certain member States – Large Civil Aircraft , para. 640). 
68 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China) , para. 4.7 (citing 
Appellate Body Reports, Brazil – Desiccated Coconut , p. 22, DSR 1997:I, p. 186; Chile – Price Band System , 
para. 164; and US – Continued Zeroing , para. 161). WT/DS467/19 
 
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  5.8.  The Appellate Body recently summarized the manner in which a panel must determine 
whether a panel request fulfils the requirements of  Article 6.2. Specifically, the Appellate Body 
stated that: 
[A] panel must determine compliance with Article 6.2 "'on the face' of the panel 
request"69 as it existed at the time of filing. Thus, parties' submissions and statements 
during the panel proceedings cannot "cure" any defects in the panel request.70 
Nevertheless, these subsequent submissions and statements may be consulted to the 
extent that they may confirm or clarify the meaning of the words used in the panel 
request.71 In any event, the determination of the conformity with Article 6.2 should be 
done on a case-by-case basis, considering the particular context in which the measures exist and operate.
72 This determination must be done on an objective basis, 
such that any circumstances taken into account may not contemplate those that are 
relevant only to a party to the panel proceedings.73 
5.9.  The requirement to identify the specific meas ures at issue serves to define the "object of the 
challenge", or, more precisely, "the measure that is alleged to be causing the violation of an 
obligation contained in a covered agreement".74 The Appellate Body has observed that "the clear 
identification of the specific measures at the outset  is central to define the scope of the dispute to 
be addressed by a panel".75 It also serves to ensure that the respondent is in a position to defend 
itself: 
The word "specific" in Article 6.2 establishes a specificity requirement regarding the 
identification of the measures that serves  the due process objective of notifying the 
parties and the third parties of the measure(s) that constitute the object of the 
complaint.76 
5.10.  Whether or not a panel request satisfies this requirement must be assessed "on the merits 
of each case, having considered the panel requ est as a whole, and in the light of attendant 
circumstances".77 The Panel must therefore "scrutinize ca refully the panel request, read as a 
whole, and on the basis of the language used".78 In addition, "whether a panel request identifies 
the 'specific measures at issue' may depend on the particular context in which those measures 
operate and may require examining the extent to  which they are capable of being precisely 
identified".79 
5.11.  In light of the nature of Australia's request,  we will consider how this requirement applies in 
relation to panel requests that define the measures at issue in part without naming them (that is, 
in a manner other than by specifically enumeratin g the measures at issue, such as, for example, 
by referring to "related" measures, "implementing"  measures, or "amending" measures). We note 
that such references are not uncommon in panel re quests, and have been challenged in previous 
disputes.  
5.12.  For example, the panel request in EC – Bananas III  referred to EC Regulation 404/93 and 
"subsequent EC legislation, regulations and administrative measures, including those reflecting the 
                                               
69 (footnote original) A ppellate Body Report, US – Continued Zeroing , para. 161 (quoting Appellate Body 
Report, US –Carbon Steel , para. 127). 
70 (footnote original)  Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 
787 (referring to Appellate Body Reports, EC – Bananas III , para. 143; and US – Carbon Steel , para. 127). 
71 (footnote original)  See e.g. Appellate Body Report, US – Carbon Steel , para. 127. 
72 (footnote original)  Appellate Body Report, EC and certain member States – Large Civil Aircraft , 
para. 641. 
73 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China) , para. 4.9. 
74 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China) , para. 4.12 (citing 
Appellate Body Report, EC – Selected Customs Matters , para. 130). 
75 Appellate Body Report, EC – Chicken Cuts , para. 155. 
76 Appellate Body Report, EC – Selected Customs Matters , para. 152. 
77 Appellate Body Report, US – Carbon Steel , para. 127. See also  Appellate Body Report, Korea – Dairy , 
paras. 124-127; Panel Report, Canada – Wheat Exports  and Grain Imports , para. 6.10, sub-para. 14. 
78 Appellate Body Report, EC – Fasteners (China) , para. 562 (citing Appellate Body Reports, US – 
Carbon Steel , para. 127; US – Oil Country Tubular Goods , paras. 164 and 169; US – Continued Zeroing , 
para. 161; and US – Zeroing (Japan) (Article 21.5 – Japan) , para. 108). 
79 Appellate Body Reports, China – Raw Materials , para. 220 (citing Appellate Body Report, EC and 
certain member States – Large Civil Aircraft , para. 641). WT/DS467/19 
 
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  provisions of the Framework Agreement on bananas, which implement, supplement and amend  
that regime".80 The panel considered that the "banana regime" challenged by the complainants 
was "adequately identified", even if the "subsequen t EC legislation, regulations and administrative 
measures that further refine and implement the basic regulation" were not identified. The 
Appellate Body agreed that the request contained "sufficient identification of the specific measures 
at issue to satisfy the requirements of Article 6.2 of the DSU".81 We understand this to indicate 
that general references to unnamed measures, such  as, in that case, measures that "implement, 
supplement and amend" a primary measure explicitly identified in the panel request, may be 
capable of satisfying the specificity re quirement in Article 6.2 of the DSU. 
5.13.  We also note that in some cases, by co ntrast, similar general references have been found 
insufficient to meet the specificity requirement in Article 6.2. Thus, in EC – Selected Customs 
Matters , the Appellate Body found that the phrase "implementing measures and other related 
measures" was "vague and does not allow the identification of the specific instruments that the reference aims to cover", such that it did not "identify the specific measures at issue", as required 
by Article 6.2 of the DSU.
82 In China – Raw Materials , the panel similarly held that the term 
"related measures" was too broad and did not allow China to know clearly what specific measures were being challenged.
83 A s  o b s e r v e d  b y  t h e  p a n e l  i n  India – Agricultural Products, the broad 
scope of the enumerated measures in these two disputes appears to have contributed to the 
conclusion that the terms at issue were insufficient ly precise, in the context of those disputes, to 
meet the specificity requirement of Article 6.2 of the DSU.84 
5.14.  Overall, these rulings suggest to us that  a reference to unnamed measures such as those 
discussed above is not per se  inconsistent with the specificity requirement in Article 6.2. In 
particular, as noted by Australia, such an approach may allow the complainant to preserve its due process rights
85 and thereby assist in ensuring that a positive solution to the dispute can be 
secured.86 Such language may in particular serve to protect the interests of the complainant in 
respect of relevant measures not yet in existence at the time of filing the panel request.87 
However, whether such a reference meets the specificity requirements of Article 6.2 will depend 
importantly on the circumstances of the case. Just  as with any assessment under this element of 
Article 6.2, a finding of whether such language is consistent with the specificity requirement under this provision must be based, as described above, on a consideration of the panel request as a whole and of any attendant circumstances, on a case-by-case basis.
88 
5.15.  In this respect, we note the following observations of the panel in Japan – Film :  
To fall within the terms of Article 6.2, it seems clear that a 'measure' not explicitly 
described in a panel request must have a clear relationship to a 'measure' that is 
specifically described therein, so that it ca n be said to be 'included' in the specified 
                                               
80 WT/DS27/6 (emphasis added). 
81 Panel Report, EC – Bananas III , para. 7.27; Appellate Body Report, EC – Bananas III , para. 140. 
82 In that dispute, the United States had challenged the EC's Community Customs Code, the regulation 
implementing the Customs Code, the regulation on the tariff and statistical nomenclature and on the Common Customs Tariff, and the Integrated Tariff of the Europe an Communities, as well as "implementing measures 
and other related measures".   Appellate Body Report, EC – Selected Customs Matters , paras. 2 and 152, 
footnote 369. 
83 Panel Reports, China – Raw Materials , Annex F-1, para. 17. 
84 Preliminary Ruling, India - Agricultural Products , paras. 3.45-3.47. 
85 Australia's comments on responses to Australia 's requests for prelimin ary rulings, para. 28. 
86 In this regard we note the determination of the panel in EC – Chicken Cuts  that two subsequent 
measures cited by the complainants in the course of the proceedings did not fall with in its terms of reference, 
based on its determination that Brazi l's and Thailand's respective panel requests were "much more narrowly 
drafted" than the "broadly worded" panel requests at is sue in previous cases where panels had found measures 
not identified specifically in the panel requests to be ne vertheless within their terms of reference.  (see Panel 
Reports, EC – Chicken Cuts (Brazil) , paras. 7.20-7.32 and EC – Chicken Cuts (Thailand) , paras. 7.20-7.32).  
On appeal, the Appellate Body was not persuaded that  the subsequent measures in question could be 
considered as amendments to the two original measures as argued or that the two sets of measures were, in 
essence, the same. It also noted that the objective of se curing a positive and effective resolution of a dispute 
"cannot be pursued at the expense of complying with the specific requirements and obligations of Article 6.2" (Appellate Body Report, EC – Chicken Cuts , paras. 157-158 and 161).  
87 See for example Appellate Body Report, Chile – Price Band System , paras. 137-138. 
88 Appellate Body Report, US – Carbon Steel , para. 127. See also  Appellate Body Report, Korea – Dairy , 
paras. 124-127; Panel Report, Canada – Wheat Exports  and Grain Imports , para. 6.10, sub-para. 14. WT/DS467/19 
 
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  measure. In our view, the requirements of Article 6.2 would be met in the case of a 
'measure' that is subsidiary or so closely related to a 'measure' specifically identified, that the responding party can reasonably be found to have received adequate notice of the scope of the claims asserted by the complaining party.
89 
5.16.  That panel also stressed that the two elem ents – close relationship and notice – are inter-
related, so that "only if a 'measure' not explicitly identified is subsidiary or closely related to an identified 'measure' will notice be adequate".
90 
5.17.  Like that panel, we are mindful of the role of the panel request in fulfilling due process 
objectives, for both parties. Due process is a fundamental principle of WTO dispute settlement,91 
which informs various provisions of the DSU.92 As we understand it, the requirements of due 
process imply, in this context, both that the complainant is able to define the scope of its 
complaint so as to secure a positive solution to the dispute93 and that the panel request identifies 
the measure(s) at issue with such specificity that all parties and third parties receive adequate notice regarding the nature of the complainant's case.
94 
5.18.  We further note that these requirements of due process continue to manifest themselves in 
the course of panel proceedings, after the establishm ent of the panel. We note, in this respect, the 
observations of the Appellate Body in Chile – Price Band System : 
[G]enerally speaking, the demands of due process are such that a complaining party 
should not have to adjust its pleadings throughout dispute settlement proceedings in order to deal with a disputed measure as a "moving target". If the terms of reference 
in a dispute are broad enough to include amendments to a measure … and if it is 
necessary to consider an amendment in order to secure a positive solution to the 
dispute … then it is appropriate to consider the measure as amended in coming to a 
decision in a dispute.
95 (emphasis added) 
                                               
89 Panel Report, Japan – Film , para. 10.8. We note that this test  has been referred to by subsequent 
panels in assessing whether certain measures not expressly identified in the panel request nonetheless fell 
within the scope of their terms of re ference. For instance, the panel in US – Carbon Steel  found that a 
particular measure not identified in the panel request was not a measure that was subsidiary, or so closely 
related to, any of the measures specifically identified that the responding party co uld reasonably be found to 
have received adequate notice of the scope of the clai ms asserted by the complain ing party (see Panel Report, 
US – Carbon Steel, para. 8.11). The panel in Australia – Salmon (Article 21.5 – Canada)  also considered 
whether measures not expressly named in the panel request were "so closely related" to the measures named in the panel request that the responde nt "can reasonably be found to have  received adequate notice" of the 
scope of the complainant's claims (see Panel Report, Australia – Salmon (Article 21.5 – Canada) , para. 7.10, 
subpara. 27). 
90 Panel Report, Japan – Film , para. 10.8. 
91 The Appellate Body has held that "the protection of due process is an esse ntial feature of a rules-
based system of adjudication, such as that establishe d under the DSU", and that "due process is fundamental 
to ensuring a fair and orderly conduct of dispute settlement procee dings". (Appellate Body Reports, Canada – 
Continued Suspension / US  – Continued Suspension , para. 433; and Thailand – H-Beams , para. 88, 
respectively. See also Appellate Body Report, Chile – Price Band System , para. 176). 
92 See Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US) , para. 107. See also Appellate 
Body Reports, India – Patents (US) , para. 94; and Chile – Price Band System , para. 176. 
93 As the Appellate Body has said, "due process may … require a panel to take appropriate account of 
the need to safeguard … an aggrieved party's right to have  recourse to an adjudicative process in which it can 
seek redress in a timely manner, and the need for pr oceedings to be brought to a close" (Appellate Body 
Report, Thailand – Cigarettes (Philippines) , para. 150). 
94 Appellate Body Report,  US – Countervailing and Anti-Dumping Measures (China) , para. 4.7 (citing 
Appellate Body Reports, Brazil – Desiccated Coconut , p. 22, DSR 1997:I, p. 186; US – Carbon Steel , 
para. 126; and EC and certain member States – Large Civil Aircraft , para. 640).  
95 Appellate Body Report, Chile – Price Band System , para. 144. WT/DS467/19 
 
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  5.19.  In determining whether a specific amen dment identified in the course of the panel 
proceedings could be considered to be properly before the panel in that case, the Appellate Body considered not only the terms of the panel request, which included a general reference inter alia  to 
"complementary provisions and/or amendments",  but also the fact that the amendment in 
question did not change the "essence" of the original measure at issue.
96 We note that the panel in 
China – Raw Materials  considered that the same approach applied in respect of "replacement 
measures".97 
5.20.  Thus, even where the language of a panel request is, on its face, broad enough to 
encompass certain additional instruments not identified by name in the request, this would not provide a basis for the complainant to expand th e scope of the dispute or modify its essence 
through the invocation of such instruments in the course of the panel proceedings. This is 
consistent, in our view, with the fact that it is the panel request that determines the scope of the 
dispute before the Panel and with the due process objectives served by the panel request in this 
respect.  
5.21.   Bearing in mind these elements, we now turn to Indonesia's panel request to determine 
whether it is consistent with Article 6.2 of th e DSU and, specifically, whether it sufficiently 
identifies the "specific measures at issue". 
5.2  Whether Indonesia's panel request iden tifies the specific measures at issue 
5.22.  As described above, Australia challenges some of the terms used by Indonesia in its panel 
request to identify the measures at issue in its complaint.  
5.23.  In order to determine whether these terms meet the requirements of Article 6.2, we must 
"scrutinize carefully the panel request, read as a whole, and on the basis of the language used".
98 
We therefore start our analysis with a consideration of the text of Indonesia's panel request. 
5.24.  Section A of the Indonesia's panel request is entitled "Specific Measures at Issue". That 
section provides as follows: 
This request for establishment of a Panel concerns the following measures: 
 Tobacco Plain Packaging Act 2011 , Act No. 148 of 2011, "An Act to discourage 
the use of tobacco products, and for related purposes"; 
 Tobacco Plain Packaging Regulations 2011 (Select Legislative Instrument 2011, 
No. 263), as amended by the Tobacco Plain Packaging Amendment Regulation 
2012 (No. 1 ) (Select Legislative Instrument 2012, No. 29); 
 Trade Marks Amendment (Tobacco Plain Packaging) Act 2011 , Act No. 149 of 
2011, "An Act to amend the Trade Marks Act 1995 , and for related purposes"; 
and 
                                               
96 See Appellate Body Report, Chile – Price Band System , paras. 139-144. In that case, the panel 
request identified a primary law an d existing amendments, "as well as the regulations and complementary 
provisions and/or amendments".  In the course of th e proceedings, an amendment was discussed, that added 
a paragraph to the primary law, and set out the maximum ad valorem  tariff that could be applied (which was in 
any case evident from Chile's tariff bi ndings). The Appellate Body considered that the measure was not, in 
essence, different as a re sult of the amendment (see Appellate Body Report, Chile – Price Band System , paras. 
137 - 139).  
97 The panel in China – Raw Materials  considered that this approach should also apply to "replacement 
measures that are of the same essence as original meas ures specifically identified in the [p]anel [r]equest", 
because the Appellate Body's "rationa le for including amendments of the same essence applies equally to 
replacement measures so that replacement measures of the same essence should also be assessed by a panel 
in order to secure a positive solution to a dispute". Panel Reports, China – Raw Materials , para. 7.16. Similarly, 
the panel in China – Publications and Audiovisual Products  analysed whether China could be considered to have 
received adequate notice of a partic ular measure, based on the language of the panel request as a whole, 
notwithstanding the fact that it included a general reference to "amendments, related measures, or 
implementing measures" (Panel Reports, China –  Publications and Audiovisual Products , para. 7.60 
footnote 105). 
98 Appellate Body Report, EC – Fasteners (China) , para. 562. WT/DS467/19 
 
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   Any related measures adopted by Australia, including measures that implement, 
complement or add to these laws and regulations, as well as any measures that amend or replace these laws and regulations.
99 
5.25.  The panel request then states that "[t]he measures apply to the retail sale of cigarettes, 
cigars, and other tobacco products. The measures establish comprehensive requirements 
regarding the appearance and form of the retail packaging of tobacco products, as well as the 
tobacco products themselves. The measures also establish penalties, including criminal sanctions, 
for the violation of these requirements".100 The panel request then proceeds to elaborate on the 
manner in which the cited measures regulate the enumerated products.101 
5.26.  Australia's challenge focuses on the fourth  "dot point" of Indonesia's enumeration of the 
measures at issue. Specifically, Australia challenges the use of the terms "including", and 
"complement or add to" in that context, on the basis that they are "indeterminate"102 and may 
potentially cover a broad range of measures relating to tobacco control, such as public education campaigns or the listing of nicotine replacement therapies. Australia considers that "the 
uncertainty regarding the scope of the related measures arises because of the particular context in 
which Australia's tobacco plain packaging measure exists and operates, namely as part of a comprehensive range of complementary tobacco control measures".
103 
5.27.  We first observe that each of the terms chal lenged by Australia is used to describe instances 
of "related" measures. The term "related measures" itself is to be read against the context of the enumeration that precedes it in the first three "dot points" under which the measures at issue are listed. In order to properly understand the terms at issue as part of the panel request "as a 
whole", we must therefore consider them as they are used in this particular context. 
5.28.  Second, we understand the panel request as indicating that the "measures" that it concerns 
are the measures identified under the title "Specific Measures at Issue". The panel request defines 
these measures in three ways. First, it enumerates three specific acts and regulations (namely, the 
Tobacco Plain Packaging Act 2011 , the Tobacco Plain Packaging Regulations 2011 , and the Trade 
Marks Amendment (Tobacco Plain Packaging) Act 2011 ). These may be described as the "primary" 
measures identified in this dispute. Second, im mediately following this enumeration, the panel 
request provides that the measures at issue are also "any related measures adopted by Australia 
including measures that implement, complement or add to these laws and regulations and any 
measures that amend or replace these laws and regulations". Third, the description immediately 
following these bullet points describes the types of requirements and "penalties" that the 
"measures" establish. We understand this language to indicate that, to the extent that only measures that fit this description are "measures" to which the panel request refers and are thus 
"specific measures at issue" within the meaning of Section A of the panel request. This description 
therefore has the effect of further circumscribing the scope of the measures at issue by reference to what the measures actually do. 
5.29.  A plain reading of this language on its face suggests that the term "related" measures, as 
used here, necessarily refers to the three primary measures enumerated above, i.e. the three listed measures specifically addressing "tobacco plain packaging". Only measures related to these three specifically listed instruments could theref ore fall within the scope of the term "related" 
measures. The final narrative element of the defini tion of the measures at issue further clarifies 
that the measures are defined only as measures that "apply to the retail sale of cigarettes, cigars, 
and other tobacco products", "establish comprehensive requirements regarding the appearance 
and form of the retail packaging of tobacco products , as well as the tobacco products themselves", 
or "establish penalties, including criminal sanctions, for the violation of these requirements". We consider that this narrative element further clarifies and delimits the scope of measures within the 
Panel's terms of reference, insofar as measures falling within the scope of the three primary 
measures, or of "related measures, including measures … that … complement or add to" the 
primary measures, would also need to "apply to the retail sale of cigarettes, cigars, and other tobacco products", "establish comprehensive requirements regarding the appearance and form of 
                                               
99 Indonesia's request for the establishment of a panel, p. 1. 
100 Indonesia's request fo r the establishment of a panel, pp. 1-2. 
101 Indonesia's request for the establishment of a panel, p. 2. 
102 Australia's request for a prelimin ary ruling in relation to Indo nesia's panel request, para. 27. 
103 Australia’s comments on responses to Australia ’s requests for prelimin ary rulings, para. 29. WT/DS467/19 
 
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  the retail packaging of tobacco products, as well as the tobacco products themselves", or 
"establish penalties, including criminal sanctions, for the violation of these requirements" in order to fall within our terms of reference. 
5.30.  In view of these limitations on the scope of measures covered, we do not consider that the 
language of the panel request in relation to "related measures", and in particular with respect to 
related measures that "add to" or "complement" the primary listed measures, is as open as Australia has suggested. Australia has argued that Indonesia, through the language of its 
panel request, "attempts to include a non-exhaustive and therefore indeterminate list" of "related 
measures" within the Panel's terms of reference.
104 Specifically, Australia has identified a range of 
"tobacco control" measures that it argues could fall within the scope of the language of Indonesia's panel request, including (for example) public education campaigns, the listing of nicotine 
replacement therapies and other smoking cessation supports on Australia's Pharmaceutical 
Benefits Scheme, or Quitlines and other smoking cessation support services.
105 In the light of our 
understanding of the terms of the panel request,  and the parameters created by the language 
therein, it is not apparent to us how such measures could fall within the scope of the panel request 
and thus within our terms of reference. Specifica lly, we are not persuaded that such indeterminacy 
exists when the terms "including" and "complement or add to" are read in the context of the 
remainder of the panel request. We are therefore of the view that the terms "including" and 
"complement or add to" do not unduly broaden the scope of the dispute in the manner that Australia argues. 
5.31.  Recalling our discussion in Section 5.1 above, we further observe that the language used by 
Indonesia is similar to that used by the complainants in EC – Bananas III . We recall that the 
panel request in that case referred to a specific  EC Regulation and "subsequent EC legislation, 
regulations and administrative measures, including those reflecting the provisions of the 
Framework Agreement on bananas, which implement , supplement  and amend  that regime".
106 
Notwithstanding such similarities, we are mindful of the requirement that we must "scrutinize carefully the panel request, read as a whole, and on the basis of the language used".
107 With this 
in mind, we note the broader context in which these words appeared in the complainants' panel 
request in EC – Bananas III . In particular, we observe that the panel request in that dispute 
explicitly identified an impugned measure and then identified, by way of a narrative description, related unnamed measures that the complainants also sought to challenge (that is, "subsequent 
EC legislation, regulations and administrative measures, including those reflecting the provisions of 
the Framework Agreement on bananas, whic h implement, supplement and amend that 
regime").
108 
5.32.  As discussed, Indonesia has defined the measures at issue as the "plain packaging 
measures", which it defines with explicit reference to three measures (the Tobacco Plain Packaging 
Act 2011 , the Tobacco Plain Packaging Regulations 2011 , and the Trade Marks Amendment 
(Tobacco Plain Packaging) Act 2011 ). Moreover, Indonesia has further identified the measures at 
issue by reference to their application ("[t]he measures apply to the retail sale of cigarettes, cigars, and tobacco products") and their effect ("[t]he measures establish comprehensive requirements regarding the appearance and form of the retail packaging of tobacco products, as 
well as the tobacco products themselves" and "[t]he measures also establish penalties, including 
criminal sanctions, for the violation of these requirements".
109 We consider that this approach is 
also similar to that taken by the complainants in EC – Bananas III . In particular, we consider that 
the scope of the primary measures is well delineated, such that the qualifying role played by the 
terms "complement" and "add to" is similar to that  of the term "supplement" in the context of EC – 
Bananas III . Bearing this similarity in mind, as well as the similarity between the words 
"implement, supplement and amend" and "complemen t or add to" themselves, we do not consider 
that there is any material difference between the language used by Indonesia in its panel request, 
                                               
104 Australia's request for a prelimin ary ruling in relation to Indo nesia's panel request, para. 9. 
105 Australia's request for a prelimin ary ruling in relation to Indo nesia's panel request, para. 17. 
106 WT/DS27/6. (emphasis added) 
107 Appellate Body Report, EC – Fasteners (China) , para. 562. 
108 WT/DS27/6. 
109 WT/DS467/15. WT/DS467/19 
 
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  and that endorsed by the panel and Appellate Body in EC – Bananas III .110 This confirms us in our 
view that this language is sufficiently specific to satisfy Article 6.2 of the DSU. 
5.33.  We note Australia's argument that the circumstances in this dispute are analogous to those 
in China – Raw Materials , in which the complainants referred in their panel requests to a series of 
measures, preceded by the phrase "among others".111 In its preliminary ruling, the panel in that 
case found that the complainants could not include additional measures other than those enumerated in the panel requests, because "[s]uch an 'open ended' list would not contribute to the 
'security and predictability' of the WTO dispute sett lement system as required by Article 3.2 of the 
DSU".
112 Australia submits that the language used by  Indonesia is similarly open-ended and "does 
not provide Australia with notice of the measures under challenge and creates considerable uncertainty as to the identity, number and content of the measures at issue".
113 
5.34.  As discussed above, the language in Indonesia's panel request establishes parameters that 
circumscribe the measures at issue through reference to (i) the narrative description of the measures at issue, (ii) the three primary measures, and (iii) the reference to measures "related 
to" such measures, which includes measures that "complement" and "add to" those measures, 
which do not change the essence of the dispute, and of which Australia has notice. In contrast, the panel request in China – Raw Materials did not contain such parameters. We are not persuaded 
that Indonesia's panel request, and the parameters therein, give rise to a similarly "open-ended" 
list. In particular, as discussed above, we do not co nsider that these terms, read in context, imply 
that the broad range of "general tobacco control measures" not directly related to tobacco plain packaging that are the basis for Australia's concern would be covered.  
5.35.  In light of the above, we consider that the terms "including", "complement" and "add to", as 
used in Indonesia's panel request, are not, on their face, inconsistent with the requirement under Article 6.2 of the DSU to identify the specific measures at issue. 
5.36.  In making this determination, we make no assessment, at this stage of our proceedings, as 
to whether any particular measure that may be invoked by Indonesia in the course of these proceedings as "related" to the plain packaging measures as described above, including measures 
that may "add to or complement" the listed measures , is or is not within our terms of reference.  
5.37.  We are mindful in this regard that "a clear identification of the specific measures at the 
outset is central to define the scope of the dispute to be addressed by a panel"
114 and recall the 
important due process role played by the panel request, as discussed in paragraphs 5.17 to 5.20 
above. We note the observation of the panel in EC – IT Products  that it did not consider "that the 
mere incantation of the phrase 'any amendments, or extensions and any related or implementing 
measures' in a panel request will permit Members to bring in measures that were clearly not 
contemplated in the panel request".115 Similarly, in the present proceedings, the use of such  
terms would not provide a legitimate basis for seeking to expand or otherwise modify the scope of the dispute in the course of the proceedings. In addition, we would expect any invocation in the 
course of the proceedings of a measure not identified by name in the panel request to take place 
in a timely manner. 
5.38.  Finally, we take note of Indonesia's clarification that it does not intend to challenge every 
current or future tobacco control measure implem ented in Australia, and that the measures at 
issue are limited to those measures rela ting to plain packaging requirements.
116 We also take note 
of Indonesia's indication that the challenged lang uage is important to protect Indonesia's rights, 
"should Australia adopt measures closely-related to the plain packaging measures listed in 
Indonesia's panel request or change the legal na ture of the existing plain packaging measures 
                                               
110 Panel Report, EC – Bananas III , para. 7.27; Appellate Body Report, EC – Bananas III , para. 140. We 
also note the comparable language in Chile – Price Band System  to "complementary provisions and/or 
amendments" (See Appe llate Body Report, Chile – Price Band System , para. 135). 
111 Australia's request for a prelimin ary ruling in relation to Indo nesia's panel request, para. 10. 
112 Panel Reports, China – Raw Materials , Annex F-1, para. 12. 
113 Australia's request for a prelimin ary ruling in relation to Indo nesia's panel request, para. 10. 
114 See para. 5.10 above. 
115 Panel Report, EC – IT Products , para. 7.140. 
116 Indonesia’s response to Australia’s re quest for a preliminary ruling, para. 12. WT/DS467/19 
 
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  (e.g. by withdrawing and re-issuing measures in a sl ightly different form) during the course of the 
Panel proceedings."117 
5.39.  This preliminary ruling will become an integral part of the Panel's report, subject to any 
modifications or elaboration of the reasoning, either in a subsequent ruling or in the Panel's report, 
in the light of comments received from the parties in the course of the proceedings. 
 
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117 Indonesia’s response to Australia’s re quest for a preliminary ruling, para. 18.