WT/DS442/AB/R  
 
5 September 2017  
(17-4709) Page: 1/68 
  Original: English  
 
EUROPEAN UNION – ANTI -DUMPING MEASURES ON IMPORTS OF CERTAIN  
FATTY ALCOHOLS FROM INDONESIA  
AB-2017-1 
Report of the Appellate Body  
  WT/DS442/AB/R  
 
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Table of Contents  
 
1   Introduction  ................................ ................................ ................................ ..............  12 
2   Arguments of the Participants  ................................ ................................ ...................  15 
3   Arguments of the United  States as a Third Participant  ................................ ..............  15 
4   Issues Raised in This Appeal  ................................ ................................ .....................  16 
5   Analysis of the Appellate Body  ................................ ................................ ..................  16 
5.1   Indonesia's claims of error regarding the Panel's findings under Article  2.4 
of th e Anti -Dumping  Agreement  ................................ ................................ ....................  16 
5.1.1    Background and the measure at issue  ................................ ................................ ........ 17 
5.1.2    The Panel's findings  ................................ ................................ ................................ .19 
5.1.3    Interpretation of Article  2.4 ................................ ................................ ....................... 20 
5.1.4    Whether the Panel erred in its interpretation of Article  2.4 ................................ ............ 22 
5.1.5    Whether the Panel erred in its application of Article  2.4 ................................ ................ 26 
5.1.5.1    Whether the Panel er red in its review of the EU  authorities' treatment of the 
mark-up ................................ ................................ ................................ ........................... 28 
5.1.5.2    Whether the Panel erred in its analysis of whether  the EU  authorities incorrectly 
deducted ICOF -S' selling, general and administrative costs and profit  ................................ .......29 
5.1.6    Whether the Pane l acted inconsistently with Article  17.6(i) of the 
Anti-Dumping  Agreement and Article  11 of the DSU  ................................ ............................... 31 
5.1.6.1    Whether the Panel improperly concluded that the EU  authorities had complied 
with Article  2.4 before it addressed Indonesia's arguments  ................................ ..................... 32 
5.1.6.2   Whether the Panel engaged in a de novo review of the record evidence  ....................... 34 
5.1.6.3    Whether the Panel ignored or summarily dis missed key evidence and arguments 
by Indonesia  ................................ ................................ ................................ ..................... 38 
5.1.7    Conclusion  ................................ ................................ ................................ .............. 40 
 The European Union's claims of error regarding the Panel's findings under 5.2  
Article  6.7 of the Anti -Dumping Agreement  ................................ ................................ ... 40 
5.2.1    The Panel's findings  ................................ ................................ ................................ .41 
 Interpretation of Article 6.7  ................................ ................................ ....................... 43 5.2.2   
5.2.3    Whether the Panel erred in its interpretation of Article 6.7  ................................ ............ 45 
5.2.4    Whether the Panel erred in finding that the EU authorities failed to make available 
or disclose the results of the on -the-spot investigations to PT Musim Mas  ................................ .48 
5.2.5    Conclusion  ................................ ................................ ................................ .............. 50 
5.3   The European Union's c laims under Articles 3 and 19 of the DSU  ...........................  51 
5.3.1    The European Union's request to dismiss Indonesia's appeal as inconsistent with 
Article 3 of the DSU  ................................ ................................ ................................ ............ 51 
5.3.1.1    Procedural background  ................................ ................................ .......................... 51 
5.3.1.2    Claims and arguments on appeal  ................................ ................................ ............ 51 
5.3.1.3    Whether Indonesia's appeal is inconsistent with Article 3  ................................ ........... 52 
5.3.1.4    Conclusion  ................................ ................................ ................................ ........... 54 
5.3.2    The European Union's claim that the Panel erred in making a recommendation 
with respect to an expired measure (Article  19.1 of the DSU)  ................................ .................. 54 
5.3.2.1    The Panel's findings  ................................ ................................ ............................... 55 WT/DS442/AB/R  
 
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5.3.2.2    Claims and arguments on appeal  ................................ ................................ ............ 55 
5.3.2.3    Whether the Panel erred in making a recommendation pursuant to Article 19.1 
with respect to an expired measure  ................................ ................................ ...................... 56 
5.3.2.4    Conclusion  ................................ ................................ ................................ ........... 58 
5.4   The European Union's claim under Article 12.12 of the DSU  ................................ ... 58 
5.4.1    Factual background  ................................ ................................ ................................ ..59 
5.4.2    The Panel's findings  ................................ ................................ ................................ .59 
5.4.3    Interpretation of Article 12.12  ................................ ................................ ................... 60 
5.4.4    Whether the Panel erred in finding that its authority had not lapsed pursuant to 
Article 12.12  ................................ ................................ ................................ ..................... 62 
5.4.5    Conclusion  ................................ ................................ ................................ .............. 64 
5.5   The European Union's claim that the Panel erred in its treatment of certain 
information as BCI  ................................ ................................ ................................ .........  64 
6   Findings and conclusions  ................................ ................................ ..........................  66 
 
  WT/DS442/AB/R  
 
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ABBREVIATIONS USED I N THIS REPORT  
Abbreviation  Description  
Anti-Dumping Agreement  Agreement on Implementation of Article  VI of the General Agreement 
on Tariffs and Trade 1994  
BCI Business Confidential Information  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of 
Disputes  
Ecogreen  PT Ecogreen Oleochemicals  
EU Basic Anti -Dumping 
Regulation  Council Regulation (EC) No.  1225/2009 of 30  November  2009 on 
protection against dumped imports from countries not members of 
the European Community, published in Official Journal of the 
European  Union , L Series, No.  343 (22  December  2009), p. 51 ff 
(Panel Exhibit EU -3) 
Final Determination  Council Implementing Regulation (EU) No.  1138/2011 of 
8 November  2011 imposing a definitive anti -dumping duty and 
collecting definitively the provisional duty imposed on imports of 
certain fatty alcohols and their blends originating in India, Indonesia 
and Malaysia, Official Journal of the European Union , L Series, 
No. 293 (11  November 2011), pp.  1-18 (Panel Exhibit IDN -4) 
GATT 1994  General Agreement on Tariffs and Trade 1994  
General Court  European Union's General Court  
General Disclosure  
Document  European  Commission, General Disclosure Document dated 26 August 
2011, AD563, Proposal to impose definitive anti -dumping duties on 
Imports of certain fatty alcohols and their blends originating in India, 
Indonesia and Malaysia  (Panel Exhibit IDN -39) 
ICOF-S Inter-Continental Oils & Fats Pte Ltd (Singapore ) 
Interpipe Judgment  Court of Justice, Judgment of 16 February 2012 in joined Cases 
C-191/09  P and C -200/09  P, Council of the European Union 
(C-191/09 P) / European Commission (C-200/09 P) v. Interpipe 
Nikopolsky Seamless Tubes Plant Niko Tube ZAT (Interpipe Niko Tube 
ZAT) and Interpipe Nizhnedneprovsky Tube Rolling Plant VAT 
(Interpipe NTRP VAT) (concerning Judgment of the Court of 
First Instance of the European Union, Case T -249/06, Interpipe Niko 
Tube ZAT and Interpipe NTRP VAT v. Council of the European Union 
[2009] ECR  II-383) (Panel Exhibit IDN -49) 
Notice of initiation of the 
investigation  European Commission, Notice of initiation of an anti -dumping 
proceeding concerning imports of certain fatty alcohols and their 
blends originating in India, Indonesia and Malaysia, Official Journal of 
the European  Union , C Series, No.  219 (13  August  2010), pp.  12-16 
(Panel Exhibit IDN -12) 
P&L profit and loss statement  
Panel Report  Panel  Report, European Union – Anti-Dumping Measures on Imports 
of Certain Fatty Alcohols from Indonesia , WT/DS442/R   
Panel's BCI Procedures  Additional Working Procedures Concerning Business Confidential 
Information of 13  July 2015, contained in Annex  A-2 of the Panel 
Report  
Preliminary Determination  Commission Regulation (EU) No. 446/2011 of 10 May 2011 imposing 
a provisional anti -dumping duty on imports of certain fatty alcohols 
and their blends originating in India, Indonesia and Malaysia, Official 
Journal of the European  Union , L Series, No. 122 (11  May 2011), 
pp. 47-62 (Panel E xhibit IDN -3) WT/DS442/AB/R  
 
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Abbreviation  Description  
PT Musim Mas  Indonesian producer PT Perindustrian dan Perdagangan Musim Semi 
Mas 
PT Musim  Mas Judgment   Judgment of the General Court (seventh Chamber), 25 June 2015, in 
Case T -26/12, PT  Perindustrian dan Perdagangan Musim Semi Mas 
(PT Musi m Mas) v . Council of the European Union (Case C -468/15P) 
ECLI:EU:T:2015:437 (Panel Exhibit EU -4) 
Revised Determination  Council Implementing Regulation (EU) No. 1241/2012 of 11 
December 2012 amending Implementing Regulation (EU) 
No. 1138/2011 imposing a definitive anti -dumping duty and collecting 
definitively the provisional duty imposed on imports of certain fatty 
alcohols and their blends originating in India, Indonesia and Malaysia, 
Official Journal of the European Union , L Series,  No. 352 
(21 December 2012), pp.  1-5 (Panel Exhibit IDN -5) 
SG&A  selling, general and administrative costs  
Working Procedures  Working Procedures for Appellate Review, WT/AB/WP/6 , 16 August 
2010 
WTO World Trade Organization  
WTO Agreement  Marrakesh Agreement Establishing the World Trade Organization  
 
  WT/DS442/AB/R  
 
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PANEL EXHIBITS CITED  IN THIS REPORT  
Exhibit 
Number  Description  
IDN-2 Email correspondence of 10 and 11 July 2013 
IDN-3 Commission Regulation (EU) No. 446/2011 of 10 May 2011 imposing a 
provisional anti-dumping duty on imports of certain fatty alcohols and their 
blends originating in India, Indonesia and Malaysia, Official Journal of the 
European  Union , L Series, No. 122 (11  May 2011), pp. 47 -62 
IDN-4 Council Implementing Regulation (EU) No. 1138/2011 of 8  November  2011 
imposing a definitive anti -dumping duty and collecting definitively the 
provisional duty imposed on imports of certain fatty alcohols and their blends 
originating in India, Indonesia and Malaysia, Official Journal of the 
European  Union , L Series, No.  293 (11  November 2011), pp.  1-18 
IDN-5 Council Implementing Regulation (EU) No. 1241/2012 of 11 December 2012 
amending Implementing Regulation (EU) No. 1138/2011 imposing a definitive 
anti-dumping duty and collecting definitive ly the provisional duty imposed on 
imports of certain fatty alcohols and their blends originating in India, Indonesia 
and Malaysia, Official Journal of the European Union , L Series, No. 352 
(21 December 2012), pp.  1-5 
IDN-8 Email correspondence of 12, 19,  and 22 September 2014 between the 
WTO Secretariat and the parties  
IDN-12 European Commission, Notice of initiation of an anti -dumping proceeding 
concerning imports of certain fatty alcohols and their blends originating in 
India, Indonesia and Malaysia, Official Journal of the European  Union , C Series, 
No. 219 (13  August  2010), pp.  12-16 
IDN-17  Excerpt from the company -specific definitive disclosure to PT Musim Mas, dated 
26 August 2011  (BCI)  
IDN-18  PT Musim Mas response to Commission questionnaire AD563  (2010), 
Annex  A-3.4: Corporate structure of the Musim Mas group (BCI)  
IDN-19  PT Musim Mas response to Commission questionnaire AD563  (2010),  
Annex A: List of PT Musim Mas' shareholders (BCI)  
IDN-22  PT Musim  Mas response to Commission questionnaire AD563  (2010)  
(excerpt – response to question H -2.4) (BCI)  
IDN-24  Sale and Purchase Agreement between PT Musim Mas and Inter -Continental 
Oils & Fats Pte Ltd (1  January 2009) (BCI)  
IDN-25  Sale and Purchase Agree ment between PT Musim Mas and Inter -Continental 
Oils & Fats Pte Ltd (1  January 2010) (BCI)  
IDN-26  PT Musim Mas, "Impact of the Interpipe jud gment on the fatty alcohol 
anti-dumping investigation ( AD563 ): PTMM  situation", PowerPoint presentation 
at the DG Trade hearing on 16  August 2012 (BCI)  
IDN-27  CMS Hasche Sigle, Company -internal memorandum dated 22  November 2010 
concerning "Inspection Visit Medan 22 -25.11.2010" (BCI)  
IDN-33  Provisional Company -Specific  Disclosure to PT Musim Mas, Annex 2 : Calculation 
of dumping margin (BCI)  
IDN-34  PT Musim Mas' Comments on the Preliminary Determination, 10  June 2011 
(BCI)   
IDN-38  CMS Hasche Sigle , Company -internal memorandum dated 18 -19 November 
2010 concerning "Minutes Inspection Visit Singapore 18.11.2010" (verification 
of ICOF -S) (BCI)  WT/DS442/AB/R  
 
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Exhibit 
Number  Description  
IDN-39 European  Commission, General Disclosure Document dated 26 August 2011, 
AD563, Proposal to impose definitive anti -dumping duties on Imports of certain 
fatty alcohols and their blends originating in India, Indonesia and Malaysia  
IDN-47  Verification Exhibit PTMM -18 (BCI)  
IDN-49 Court of Justice, Judgment of 16 February 2012 in joined Cases C -191/09  P and 
C-200/09  P, Council of the European Union (C -191/09 P) / European 
Commission (C -200/09 P) v. Interpipe Nikopolsky Seamless Tubes Plant Niko 
Tube ZAT (Interpipe Niko Tube ZAT) and Interpipe Nizhnedneprovsky Tube 
Rolling Plant VAT (Interpipe NTRP VAT) (c oncerning Judgment of the Court of 
First Instance of the European Union, Case  T-249/06, Interpipe Niko Tube ZAT 
and Interpipe NTRP VAT v. Council of the European Union [2009] ECR  II-383) 
IDN-51 Excerpt from Jacob Viner, Dumping: A Problem in International  Trade  
(1923)(reprinted, Augustus M. Kelley, 1966)  
IDN-52 LCN Legal Limited, "How to Put in Place Effective Intercompany Agreements for 
Transfer Pricing", http://lcnlegal.com/how -to-put-in-place-effective -
intercompany -agreements -for-transfer -pricing/ , accessed 21  December  2015 
IDN-53 LCN Legal Limit ed, Intercompany Agreement Template for Term Loan 
Agreement (2013), available at http://lcnlegal.com/template -intercompany -
agreement -for-transfer -pricing -term-loan-agreement/   
IDN-54 LCN Legal Limited, Intercompany Agreement Template for Limited Risk 
Distribution Agreement (2014), available at http://lcnlegal.com/template -
intercompany -agreement -for-transfer -pricing -limited -risk-distribution -
agreement/   
EU-1  Letter dated 5 November 2010 from the European Commission to CMS Hasche 
Sigle concerning AD563  and PT Musim Mas   
EU-2  Letter regarding disclosure of provisional findings dated 11 May 2011  (BCI)  
EU-3 Council Regulation (EC) No.  1225/2009 of 30  November  2009 on protection 
against dumped imports from countries not members of the European 
Community, published in Official J ournal of the European  Union , L Series, 
No. 343 (22  December  2009), p. 51 ff   
EU-4 Judgment of the General Court (seventh Chamber), 25  June 2015, in Case 
T-26/12, PT  Perindustrian dan Perdagangan Musim Semi Mas (PT Musim Mas) 
v. Council of the European Un ion (Case C -468/15P) ECLI:EU:T:2015:437  
EU-5  PT Musim Mas response to Commission questionnaire AD563  (2010),  
Attachment A -3.3.1: Table G – PT Musim Mas Business Organization Structure 
(BCI)  
EU-6  PT Musim Mas response to Commission questionnaire AD563  (2010),  
Attachment A -3.3.2, Table G – Organization Chart – Fatty Alcohols Division 
(BCI)  
EU-10  Letter dated 2 6 August 2011 from European Commission to CMS Hasche Sigle 
concerning AD563  Definitive Disclosure and PT Musim Mas (PTMM) (disclosure 
of defini tive findings dated 2 6 August 2011) (BCI)  
EU-12  Excel file "PTMM definitive disclosure.xls" (BCI)  
EU-14  List of exhibits provided by the Commission to PT Musim Mas at the conclusion 
of three  verification visits (BCI)  
 
  WT/DS442/AB/R  
 
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CASES CITED IN THIS REPORT  
Short Title  Full Case Title and Citation  
Argentina – Ceramic Tiles  Panel Report, Argentina – Definitive Anti -Dumping Measures on 
Imports of Ceramic Floor Tiles from Italy , WT/DS189/R , adopted 
5 November 2001, DSR 2001:XII, p. 6241  
Argentina – Footwe ar 
(EC) Appellate Body Report, Argentina – Safeguard Measures on Imports of 
Footwear , WT/DS121/AB/R , adopted 12 January 2000, DSR 2000:I, 
p. 515  
Argentina – Poultry 
Anti-Dumping Duties  Panel Report, Argentina – Definitive Anti -Dumping Duties on Poultry 
from Brazil , WT/DS241/R , adopted 19 May 2003, DSR 2003:V, 
p. 1727 
Brazil – Retreaded Tyres  Appellate Body Report, Brazil – Measures Affecting Imports of 
Retreaded Tyres , WT/DS332/AB/R , adopted 17 December 2007, 
DSR 2007:IV,  p. 1527  
China – Auto Parts  Appellate Body Reports, China – Measures Affecting Imports of 
Automobile Parts , WT/DS339/AB/R  / WT/DS340/AB/R  / 
WT/DS342/AB/R , adopted 12 January 2009, DSR 2009:I, p. 3  
China – HP-SSST (EU)  Appellate Body Report, China – Measures Imposing Anti -Dumping 
Duties on High -Performance Stainless Steel  Seamless Tubes 
("HP-SSST") from the European Union , WT/DS460/AB/R  and A dd.1, 
adopted 28 October 2015  
China – HP-SSST (EU)  Panel Report, China – Measures Imposing Anti -Dumping Duties on 
High-Performance Stainless Steel Seamless Tubes ("HP -SSST") from 
the European Union , WT/DS460/R , Add.1 and Corr.1, adopted 
28 October 2015, as modified by Appellate Body Report  
WT/DS460/AB/R  
China – Rare Earths  Appellate Body Reports, China – Measures Related to the Exportation 
of Rare Earths, Tungsten, and Molybdenum , WT/DS431/AB/R  / 
WT/DS432/AB/R  / WT/DS433/AB/R , adopted 29 August 2014, 
DSR 2014:III, p. 805  
Dominican Repu blic – 
Import and Sale of 
Cigarettes  Panel Report, Dominican Republic – Measures Affecting the 
Importation and Internal Sale of Cigarettes , WT/DS302/R , adopted 
19 May 2005, as modified by Appellate Body Report WT/DS302/AB/R, 
DSR 2005:XV, p. 7425  
EC and certain member 
States – Large Civil 
Aircraft  Appellate Body Report, European Communities and Certain Member 
States – Measures Affecting Trade in Large Civil Aircraft , 
WT/DS316/AB/R , adopted 1 June 2011, DSR 2011:I, p. 7  
EC – Bananas III  
(Article  21.5 – Ecuador 
II) /  
EC – Bananas III  
(Article  21.5 – US) Appellate Body Reports, European Communities – Regime for the 
Importation, Sale and Distribution o f Bananas – Second Recourse to 
Article  21.5 of the DSU by Ecuador , WT/DS27/AB/RW2/ECU , adopted 
11 December 2008, and Corr.1 / European Communities – Regime for 
the Importation, Sale and Distribution of Bananas – Recourse to 
Article  21.5 of the DSU by the United States , WT/DS27/AB/RW/USA  
and Corr.1, adopted 22 December 2008, DSR 2008:XVIII , p. 7165 
EC – Bed Linen  
(Article  21.5 – India)  Appellate Body Report, European Communities – Anti-Dumping Duties 
on Imports of Cotton -Type Bed Linen from India – Recourse to 
Article  21.5 of the DSU  by India , WT/DS141/AB/RW , adopted 24 April 
2003, DSR 2003:III, p.  965 
EC – Fasteners (China)  Appellate Body Report, European C ommunities – Definitive Anti -
Dumping Measures on Certain Iron or Steel Fasteners from China , 
WT/DS397/AB/R , adopted 28 July 2011, DSR 2011:VII, p. 3995  WT/DS442/AB/R  
 
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Short Title  Full Case Title and Citation  
EC – Fasteners (China)  Panel Report, European Communities – Definitive Anti -Dumping 
Measures on Certain Iron or Steel Fasteners from China , WT/DS397/R  
and Corr.1, adopted 28 July 2011, as modified by Appellate Body 
Report WT/DS397/AB/R, DSR 2011:VIII,  p. 4289  
EC – Fasteners (China) 
(Article 21.5 – China)  Appellate Body Report, European Communities – Definitive Anti -
Dumping Measures on Certain Iron or Steel Fasteners from China – 
Recourse to Article  21.5 of the DSU by China , WT/DS397/AB/RW  and 
Add.1 , adopted 12  February 2016  
EC – Fasteners (China ) 
(Article 21.5 – China)  Panel Report, European Communities – Definitive Anti -Dumping 
Measures on Certain Iron or Steel Fasteners from China – Recourse to 
Article 21.5 of the DSU by China , WT/DS397/RW  and Add.1 , adopted 
12 February 2016, as modified by Appellate Body Report 
WT/DS397/AB/RW  
EC – Hormones  Appellate Body Report, EC Measures Concerning Meat and Meat 
Products (Hormones) , WT/DS26/AB/R , WT/DS48/AB/R , adopted 
13 February 1998, DSR  1998:I, p. 135  
EC – Tube or Pipe Fittings  Appellate Body Report, European Communities – Anti-Dumping Duties 
on Malleable Cast Iron Tube or Pipe Fittings from Brazil , 
WT/DS219/AB/R , adopted 18 August 2003, DSR 2003:VI, p. 2613  
EC – Tube or Pipe Fittings  Panel Report, European Communities – Anti-Dumping Duties on 
Malleable Cast Iron Tube or Pipe Fittings from B razil, WT/DS219/R , 
adopted 18 August 2003, as modified by Appellate Body Rep ort 
WT/DS219/AB/R, DSR 2003:VII, p. 2701  
Egypt – Steel Rebar  Panel Report, Egypt – Definitive Anti -Dumping Measures on Steel 
Rebar from Turkey , WT/DS211/R , adopted 1 October 2002, 
DSR 2002:VII, p. 2667  
EU – Biodiesel 
(Argentina)  Appellate Body Report, European Union – Anti-Dumping Measures on 
Biodiesel from Argentina , WT/DS473/AB/R  and Add.1, adopted 
26 October 2016  
EU – Footwear (China)  Panel Report, European Union – Anti-Dumping Measures on Certain 
Footwear from China , WT/DS405/R , adopted 22 February 2012, 
DSR 2012:IX, p. 4585  
India – Patents (US)  Appellate Body Report, India – Patent Protection for Pharmaceutical  
and Agricultural Chemical Products , WT/DS50/AB/R , adopted 
16 January 1998, DSR 1998:I, p. 9  
Korea – Certain Paper  Panel Report, Korea – Anti-Dumping Duties on Imports of Certain 
Paper from Indonesia , WT/DS312/R , adopted 28 November 2005, 
DSR 2005:XXII, p.  10637  
Mexico – Corn S yrup 
(Article  21.5 – US) Appellate Body Report, Mexico – Anti-Dumping Investigation of High 
Fructose Corn Syrup (HFCS) from the United States – Recourse to 
Article 21.5 of the DSU  by the United States , WT/DS132/AB/RW , 
adopted 21 November 2001, DSR 2001:XIII, p. 6675  
Thailand – Cigarettes 
(Philippines)  Panel Report, Thailand – Customs and Fiscal Measures on Cigarettes 
from the Philippines , WT/DS371/R , adopted 15 July 2011, as modified 
by Appellate Body Report WT/DS371/AB/R , DSR 2011:IV, p. 2299  
Thailand – H-Beams  Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, 
Shapes and Sections of Iron or Non -Alloy Steel and H -Beams from 
Poland , WT/DS122/AB/R , adopted 5 April 2001, DSR 2001:VII, 
p. 2701 
US – Anti-Dumpin g and 
Countervailing Duties 
(China)  Appellate Body Report, United States – Definitive Anti -Dumping and 
Countervailing Duties on Certain Products from China , 
WT/DS379/AB/R , adopted 25 March 2011, DSR 2011:V, p. 2869  WT/DS442/AB/R  
 
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Short Title  Full Case Title and Citation  
US – Carbon Stee l (India)  Appellate Body Report, United States – Countervailing Measures on 
Certain Hot -Rolled Carbon Steel Flat Products from India , 
WT/DS436/AB/R , adopted 19 December 2014, DSR 2014:V, p. 1727  
US – Cotton Yarn  Appellate Body Report, United States – Transitional Safeguard 
Measure on Combed Cotton Yarn from Pakistan , WT/DS192/AB/R , 
adopted 5 November 2001, DSR 2001:XII, p. 6027  
US – DRAMS  Panel Re port, United States – Anti-Dumping Duty on Dynamic 
Random Access Memory Semiconductors (DRAMS) of One Megabit or 
Above from Korea , WT/DS99/R , adopted 19 March 1999, 
DSR 1999:II, p. 521  
US – Hot-Rolled Steel  Appellate Body Report, United States – Anti-Dumping Measures on 
Certain Hot -Rolled Steel Products from Japan , WT/DS184/AB/R , 
adopted 23 August 2001, DSR 2001:X, p. 4697  
US – Lamb  Appellate Body Report, United States – Safeguard Measures on 
Imports of Fresh, Chilled or Frozen Lamb Meat from New Zealand and 
Australia , WT/DS177/AB/R , WT/DS178/AB/R , adopted 16 May 2001, 
DSR 2001:IX, p.  4051 
US – Poultry (China)  Panel Report, United States – Certain Measures Affecting Imports of 
Poultry from China , WT/DS392/R , adopted 25 October 2010, 
DSR 2010:V, p. 1909  
US – Shrimp (Thailand) / 
US – Customs Bond 
Directive  Appellate Body Report, United States – Measure s Relating to Shrimp 
from Thailand / United States – Customs Bond Directive for 
Merchandise Subject to Anti -Dumping/Countervailing Duties , 
WT/DS343/AB/R  / WT/DS345/AB/R , adopted 1 August 2008, 
DSR 2008:VII, p. 2385 / DSR 2008:VIII, p. 2773  
US – Shrimp II (Viet 
Nam)  Appellate Body Report, United States – Anti-Dumping Measures on 
Certain Shrimp from Viet Nam , WT/DS429/AB/R , and Corr.1, adopted 
22 April 2015  
US – Softwood Lumber V  Appellate Body Report, United States – Final Dumping Determination 
on Softwood Lumber from Canada , WT/DS264/AB/R , adopted 31 
August 2004, DSR 2004:V, p. 1875  
US – Softwood Lumber V  Panel Report, United States – Final Dumping Determination on 
Softwood Lumber from Canada , WT/DS264/R , adopted 31 August 
2004, as modified by Appellate Body Report WT/DS 264/AB/R, 
DSR 2004:V, p. 1937  
US – Softwood Lumber VI 
(Article 21.5 – Canada)  Appellate Body Report, United States – Investigation of the 
International Trade Commission in Softwood Lumber from Canada – 
Recourse to Article 21.5 of the DSU by Canada , WT/DS277/AB/RW , 
adopted 9 May 2006, and Corr.1, DSR  2006:XI, p. 4865  
US – Upland Cotton  Appellate Body Report, United States – Subsidies on Upland Cotton , 
WT/DS267/AB/R , adopted 21 March 2005, DSR 2005:I, p. 3  
US – Steel Safeguards  Appellate Body Report, United States – Definitive Safeguard Measures 
on Imports of Certain Steel Products , WT/DS248/AB/R , 
WT/DS249/AB/R , WT/DS251/AB/R , WT/DS252/AB/R , 
WT/DS253/AB/R , WT/DS254/AB/R , WT/DS258/AB/R , 
WT/DS259/AB/R , adopted 10 December 2003, DSR  2003:VII, p. 3117  
US – Zeroing (EC)  Appellate Body Report, United States – Laws, Regulations and 
Methodology for Calculating Dumping Margins ("Zeroing") , 
WT/DS294/AB/R , adopted 9 May 2006, and Corr.1, DSR 2006:II, 
p. 417 WT/DS442/AB/R  
 
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Short Title  Full Case Title and Citation  
US – Zeroing (EC)  Panel Report, United States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") , WT/DS294/R , adopted 9 
May 2006, as modified by Appellate Body Report WT/DS294/AB/R, 
DSR 2006:II, p. 521  
 WT/DS442/AB/R  
 
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WORLD TRADE ORGANIZATION  
APPELLATE BODY 
 
 
European  Union – Anti-Dumping Measures 
on Imports of Certain Fatty Alcohols from 
Indonesia  
 
Indonesia, Appellant/Appellee  
European  Union, Other Appellant/Appellee  
 
Korea, Third Participant  
United  States, Third Participant  
 AB-2017-1 
 
Appellate Body Division:  
 
Ramírez -Hernández, Presiding Member  
Kim, Member  
Zhao, Member  
 
 
1  INTRODUCTION  
1.1.  Indonesia and the European  Union each appeals certain issues of law and legal 
interpretations developed in the Panel Report,  European  Union – Anti-Dumping Measures on 
Imports of Certain Fatty Alcohols from Indonesia1 (Panel Report). The Panel was established on 
25 June 2013 to consider a complaint by Indonesia2 with respect to anti -dumping measures 
imposed by the European  Union on imports of certain fatty alcohols3 from Indonesia4, and certain 
aspects of the anti -dump ing investigation underlying those measures.5 
1.2.  Additional factual aspects of this dispute are set forth  in the Panel Report6, and in subsequent 
sections of this Report .7  
1.3.  Following consultation with the parties, the Panel adopted its Working Procedures, tog ether 
with Additional Working Procedures Concerning Business Confid ential Information (Panel's 
BCI Procedures), on 13  July 2015.8 
1.4.  Before the Panel, Indonesia claimed that the European  Union acted inconsistently with 
several provisions of the Agreement on I mplementation of Article  VI of the General Agreement on 
Tariffs and Trade 1994 (Anti -Dumping  Agreement). Specifically, Indonesia claimed that the 
European  Union  acted inconsistently  with: (i)  Articles  2.3 and 2.4 of the Anti -Dumping  Agreement 
because the European  Union made an improper adjustment to the export price of an 
Indonesian  producer for a factor that did not affect price comparability; (ii) Articles  3.1 and 3.5 of 
the Anti -Dumping  Agreement because the European  Union failed to conduct a proper 
non-attribution analysis with respect to two relevant factors – namely, the "financial/economic 
crisis" and "issues related to the European  Union's domestic industry's access to raw materials"; 
                                                
1 WT/DS 442/R, 16  December 2016.  
2 Request for the Establishment of a Panel by Indonesia , WT/DS 442/2. 
3 Fatty alcohols are intermediary products produced from natural or synthetic sources, such as natural 
fats and oils, crude oil, natural gas, natural gas liquids, and coal. Fatty alcohols are mainly used as inputs for 
the production of surfactants, which ar e used to produce detergents and household, cleaning, and personal 
care products. (See Commission Regulation (EU) No. 446/2011 of 10  May 2011 imposing a provisional 
anti-dumping duty on imports of certain fatty alcohols and their blends originating in Indi a, Indonesia and 
Malaysia, Official Journal of the European  Union , L Series, No.  122 (11  May 2011), pp.  47-62 (Preliminary 
Determination) (Panel Exhibit IDN -3), recital  11; and Indonesia's  first written submission to the Panel, 
para. 1.2 and fn  1 thereto)  
4 Panel Report, para.  2.1 (referring to Council Implementing Regulation (EU) No.  1138/2011 of 
8 November  2011 imposing a definitive anti -dumping duty and collecting definitively the provisional duty 
imposed on imports of certain fatty alcohols and their bl ends originating in India, Indonesia and Malaysia, 
Official Journal of the European Union , L Series, No.  293 (11  November 2011) pp.  1-18 (Final Determination) 
(Panel Exhibit IDN -4)). 
5 Panel Report, paras.  1.3 and 2.1.  
6 Panel Report, paras.  2.1-2.2, 7.64 -7.71, 7.113 -7.114, 7.131 -7.136, 7.231, and 7.233.  
7 See infra, section 5.1.1 and paragraphs 5.11 7, 5.16 9-5.170, 5.212-5.213, and 5.24 5-5.249. 
8 Panel Report, para.  1.7 and Annexes A -1 and A -2. WT/DS442/AB/R  
 
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and (iii) Article  6.7 of the Anti -Dumping  Agreement because the E uropean  Union failed to disclose 
to the investigated Indonesian producers the results of the verification visits.9 
1.5.  The European  Union requested the Panel to reject Indonesia's claims in their entirety.10 In 
addition, on 8  January  2015, the European  Union re quested the Panel to issue a preliminary ruling 
that its authority had lapsed pursuant to Article  12.12 of the Understanding on Rules and 
Procedures Governing the Settlement of Disputes (DSU), following an alleged suspension of the 
Panel proceedings for mo re than 12  months.11 On 23  November  2015, following its review of the 
arguments raised by the parties and third parties, the Panel ruled that its authority had not lapsed 
pursuant to Article  12.12 of the DSU. The Panel indicated that this preliminary ruling  and the 
underlying reasoning of the Panel would form an integral part of its Report.12 
1.6.  The Panel circulated its Report to Members of the World Trade Organization (WTO) on 
16 December  2016. Pursuant to the Panel's BCI Procedures, the Panel redacted certain information 
that it considered to be BCI. In its Report, the Panel found that:  
a. with respect to the European  Union's request for a preliminary ruling:  
i. the European  Union had not demonstrated sufficiently that the correspondence sent 
by the Permanent Mission  of Indonesia to the WTO  Secretariat on 11  July 2013 
constituted a request to suspend the work of the Panel in the sense of Article  12.12 
of the DSU13;  
ii. the work of the Panel had not been suspended14; and  
iii. the authority for the establishment of the Panel had  not lapsed15; 
b. with respect to Indonesia's claims under Articles  2.3 and 2.4 of the 
Anti-Dumping  Agreement:  
i. Indonesia had not demonstrated that the EU  authorities16 acted inconsistently with 
Article  2.4 by making an improper deduction for a factor that did n ot affect price 
comparability17; and  
ii. Indonesia had therefore not demonstrated that the EU  authorities consequently 
acted inconsistently with Article  2.318; 
c. with respect to Indonesia's claims under Articles  3.1 and 3.5 of the 
Anti-Dumping  Agreement:  
i. Indonesia  had not demonstrated that the EU  authorities acted inconsistently with 
Articles  3.1 and 3.5 in their analysis of the "economic crisis" factor19; and  
ii. Indonesia had not demonstrated that the EU  authorities acted inconsistently with 
Articles  3.1 and 3.5 in re spect of the alleged "access to raw materials and price 
fluctuations" factor20; and  
                                                
9 Panel Report, para.  3.1. 
10 Panel Report, para.  3.2. 
11 Panel Report, para.  7.10. 
12 Panel Report, para.  7.13. 
13 Panel Report, para.  8.1.a.i. See also para.  7.29.a.  
14 Panel Report, para.  8.1.a.ii. See also para.  7.29.b.  
15 Panel Report, para.  8.1.a.iii. See also para.  7.29.c.  
16 We understand the Panel and the pa rties to have used the term "EU  authorities" to refer either to the 
European  Commission, or to the European  Council, or both. We do the same in this Report.  
17 Panel Report, para.  8.1.b.i. See also para.  7.160.  
18 Panel Report, para.  8.1.b.ii. See also para.  7.161.  
19 Panel Report, para.  8.1.c.i. See also para.  7.189.  
20 Panel Report, para.  8.1.c.ii. See also para.  7.205.  WT/DS442/AB/R  
 
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d. with respect to Indonesia's claim under Article  6.7 of the Anti -Dumping  Agreement, the 
EU authorities failed to make available or disclose the "results" of the on-the-spot 
investigations to the Indonesian producer, PT  Perindustrian dan Perdagangan Musim 
Semi Mas (PT  Musim Mas), and therefore acted inconsistently with Article  6.7.21 
1.7.  Pursuant to Article  19.1 of the DSU, the Panel recommended that the European  Union bring 
its mea sures into conformity with its obligations under the Anti -Dumping  Agreement.22 
1.8.  On 10  February  2017, Indonesia notified the Dispute Settlement Body (DSB), pursuant to 
Articles  16.4 and 17 of the DSU, of its intention to appeal certain issues of law covered i n the 
Panel Report and certain legal interpretations developed by the Panel and filed a Notice of Appeal23 
and an appellant's submission pursuant to Rule  20 and Rule  21, respectively, of the Working 
Procedures for Appellate Review24 (Working Procedures). On 15 February 2017 , the 
European  Union notified the DSB, pursuant to Articles  16.4 and 17 of the DSU, of its intention to 
appeal certain issues of law covered in the Panel Report and certain legal interpretations developed 
by the Panel and filed a Notice of Other Appeal25 and an other appellant's submission pursuant to 
Rule 23 of the Working Procedures . On 28  February 2017, the European  Union and Indonesia each 
filed an appellee's submission.26 On 3 March 2017, the United  States  filed a third participant's 
submission.27 On 16  June 2017, Korea notified its intention to appear  at the oral hearing as a 
third participant.28 
1.9.  On 15 February 2017, Indonesia requested authorization, pursuant to Rule  18(5) of the 
Working Procedures, to correct a clerical error in its N otice of Appeal. In accordance with 
Rule 18(5), the Appellate  Body Division hearing this appeal provided the European  Union and the 
third parties with an opportunity to comment in writing on the request. No objections to 
Indonesia's request were received.  On 20  February  2017, the Division authorized Indonesia to 
correct the clerical error in its Notice of Appeal.29 
1.10.   On 11 April 2017, the Chair of the Appellate Body notified the Chair of the DSB that the 
Appellate Body would not be able to circulate its Report  within the 60 -day period pursuant to 
Article  17.5 of the DSU, or within the 90 -day period pursuant to the same provision.30 The Chair of 
the Appellate Body explained that this was due to a number of factors , including the substantial 
workload of the Appell ate Body, scheduling difficulties arising from appellate proceedings running 
in parallel with an overlap in the composition of the Divisions hearing the appeals, the demands 
that these concurrent appeals place on the WTO  Secretariat's translation services,  and a shortage 
of staff in the Appellate Body Secretariat. On 7 August 2017, the Chair of the Appellate Body 
informed the  Chair of the DSB that the Appellate Body Report in these pro ceedings would be 
circulated no  later than 5  September 2017.31 
1.11.   On 17 Febru ary 2017, Indonesia requested the Appellate Body Division hearing this appeal 
to adopt  specific modalities for  the treatment  of certain information designated as business 
confidential information (BCI). Indonesia expressed the view that the requested modal ities are 
provided for  under Article  18.2 of the DSU . On 23 February 2017, the European  Union indicated 
                                                
21 Panel Report, para.  8.1.d. See also para.  7.236.  
22 Panel Report, para.  8.3. 
23 WT/DS 442/5. 
24 WT/AB/WP/6, 16  August 2010.  
25 WT/DS 442/6. 
26 Pursuant to Rules  22 and 23(4), respectively, of the Working Procedures.  
27 Pursuant to Rule  24(1) of the Working Procedures.  
28 Korea submitted its delegation list for the oral hearing to the Appellate  Body Secretariat and the 
participants and third partic ipants in this dispute. For purposes of this appeal, we have interpreted Korea's 
action to be a notification expressing the intention of Korea to attend the oral hearing pursuant to Rule  24(4) 
of the Working Procedures. Having notified the DSB of their int erest in the matter before the Panel, pursuant to 
Article  10.2 of the DSU, India, Korea, Malaysia, Thailand, Turkey, and the United  States reserved their right to 
participate as third parties. (Panel Report, para.  1.6) India, Malaysia, Tur key, and Thailand  are not 
third participants in these appellate proceedings as none of them filed a written submission pursuant to 
Rule 24(1) of the Working Procedures or appeared at the oral hearing.  
29 WT/DS442/5/Corr.1 , in English and Spanish only . The corrected version of Indonesia's  Notice of 
Appeal is contained in Annex  A-1 of the Addendum to this Report, WT/DS442/AB/R/Add.1.  
30 WT/DS442/7.  
31 WT/DS442/8.  WT/DS442/AB/R  
 
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that it shared Indonesia's understanding of Article  18.2 of the DSU. On 16 March  2017, the 
Division informed the participants that it did not share the ir understanding of Article  18.2 of the 
DSU. The Division explained that, to the extent that the participants in this appeal wanted the 
Division to undertake specific procedural steps not expressly contemplated under the DSU or the 
Working  Procedures, then  the participants needed to request the specific treatment sought and 
explain why the information in question warranted special and additional protection .32 
1.12.   On 11  May 2017, Indonesia addressed a letter to the Division, making two  reques ts. 
First, Indonesia requested the Division to adopt, pursuant to Rule  16(1) of the Working 
Procedures, additional procedures for the protection of BCI in these  appellate proceedings. 
Second,  Indonesia requested leave to modify the executive summary of its appellant's submissi on 
by replacing the information enclosed within double brackets in paragraph  7.9 of that executive 
summary with non -confidential information.  On 12  May 2017, the Division invited the 
European  Union and the third  participants to comment on Indonesia's lette r. No objections to 
Indonesia's requests were received.  
1.13.   On 13  June 2017, the Division issued a Procedural Ruling informing the participants of its 
decision to accord additional protection, on specified terms, to the following information in these 
appellate  proceedings: (i)  the information marked by the participants as BCI and enclosed within 
double brackets in their submissions to the Appellate Body; and (ii) the information designated by 
the Panel as BCI in its Report and in the Panel record. Second, pursu ant to Rules  16(1) and 18(5) 
of the Working Procedures, the Division accepted Indonesia's request for leave to amend the 
executive summary of its appellant's submission.33 
1.14.   The oral hearing in this appeal was held on 19 -20 June 2 017. The participants and 
third participants  made oral statements and responded to questions posed by the Division.  
1.15.   On 30 June 2017, the participants and third participants were informed that, in accordance 
with Rule 15 of the Working Procedures, the Appellate Body had notified the Chair of the DSB of its 
decision to authorize Appellate Body Member Mr Ricardo Ramírez -Herná ndez to complete the 
disposition of this appeal, even though his second term of office was due to expire before the 
completion of the appellate proceedings.   
2  ARGUMENTS OF THE PAR TICIPANTS  
2.1.  The claims and arguments of the participants are reflected in the ex ecutive summaries of 
their written submissions provided to the Appellate  Body.34 The Notices of Appeal and 
Other  Appeal, and the executive summaries of the participants' claims and arguments, are 
contained in Annexes  A and B of the Addendum to this Report, WT/DS442/AB/R/Add.1.  
3  ARGUMENTS OF THE UNI TED STATES AS A THIRD PA RTICIPANT  
3.1.  The arguments  of the United  States are reflected in the executive summary of its written 
submission provided to the Appellate  Body35, contained in Annex  C of the Addendum to this 
Report, WT/DS442/AB/R/Add.1.  
                                                
32 Additional details regarding the Division's letter of 16 March 2017 are reflected in the Procedural 
Ruling of 13 Ju ne 2017 contained in Annex  D of the Addendum to this Report, WT/DS442/AB/R/Add.1.  
33 The Procedural Ruling of 13 June 2017 is contained in Annex  D of the Addendum to this Report, 
WT/DS442/AB/R/Add.1.  
34 Pursuant to the Appellate  Body's communication on "Executive Summaries of Written Submissions in 
Appellate Proceedings" and "Guidelines in Respect of Executive  Summaries of Written Submissions in 
Appellate  Proceedings" (WT/AB/23, 11  March 2015). The corre cted version of the executive summary of 
Indonesia's appellant's submission is contained in Annex B -1 of the Addendum to this Report, 
WT/DS442/AB/R/Add.1.  
35 Pursuant to the Appellate  Body's communication on "Executive Summaries of Written Submissions in 
Appellate Proceedings" and "Guidelines in Respect of Executive  Summaries of Written Submissions in 
Appellate  Proceedings" (WT/AB/23, 11  March 2015).  WT/DS442/AB/R  
 
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4  ISSUES RAISED IN THI S APPEAL  
4.1.  The following issues are  raised in this appeal:  
a. whether the Panel erred in its interpretation and application of Article  2.4 of the 
Anti-Dumping  Agreement , and acted inconsistently with Article  11 of the DSU and 
Article  17.6(i) of the Anti -Dumping  Agreement,  in finding that Indon esia had not 
demonstrated that the EU  authorities made an improper deduction for a factor that did 
not affect price comparability  (raised by Indonesia) ; 
b. whether the Panel erred in  its interpretation and application of Article  6.7 of the 
Anti-Dumping  Agreem ent in finding that the EU  authorities failed to make available or 
disclose the results of the on -the-spot investigations to PT  Musim  Mas, and that the 
European Union therefore acted inconsistently with Article  6.7 (raised by the 
European  Union);  
c. whether, in appealing the Panel Report concerning  an expired measure, Indonesia acted 
inconsistently with the provisions of Article  3 of the DSU, and whether the 
Appellate  Body should, for this reason, find it unnecessary to rule on the claims  raised 
on appeal by Indonesia (raised by the European Union) ; 
d. whether the Panel acted inconsistently with Articles  19 and 11 of the DSU in making a 
recommendation with respect to an expired measure  (raised by the European Union) ; 
e. whether the Panel erred , and failed to make an objective assessment  of the matter 
under Article  11 of the DSU,  in finding that the authority for the establishment of the 
Panel had not lapsed pursuant to Article  12.12 of the DSU  (raised by the 
European  Union) ; and  
f. whether the Panel erroneously treated certain information as BCI, and consequently 
erred by redacting that information from five paragraphs of the Panel  Report  (raised by 
the European Union) . 
5  ANALYSIS OF THE APPE LLATE BODY  
5.1  Indonesia's claims of error regar ding the Panel's findings under Article  2.4 of the 
Anti-Dumping  Agreement  
5.1.  Indonesia appeals the Panel's finding that Indonesia had not demonstrated that the 
EU authorities acted inconsistently with Article  2.4 of the Anti -Dumping  Agreement by making an 
improper deduction for a factor that did not affect price comparability.36 Indonesia contends that 
the Panel erred in its interpretation and application of Article  2.4 in assessing whether the 
EU authorities' downward adjustment to PT  Musim Mas' export price w as proper. Indonesia also 
argues that the Panel acted inconsistently with Article  17.6(i) of the Anti -Dumping  Agreement and 
Article  11 of the DSU in its analysis of Indonesia's claim under Article  2.4 of the 
Anti-Dumping  Agreement.37 Consequently, Indonesia  requests us to reverse the Panel's conclusion 
under Article  2.4 of the Anti -Dumping  Agreement.38 Indonesia also requests us to complete the 
legal analysis and find that the EU  authorities acted inconsistently with Article  2.4 by applying an 
incorrect legal  standard in their decision to make a downward adjustment to PT Musim Mas' export 
price.39 
5.2.  Before commencing our analysis of the  issues raised on appeal, we provide an overview of 
the relevant aspects of the EU  authorities' anti -dumping investigation and the specific 
                                                
36 Indonesia's appellant's submission, para.  6.1 (referring to Panel Report, paras.  7.160 and 8.1.b.i).  
37 In its Notice of Appeal and appellant's submission, Indonesia contend ed that the Panel also acted 
inconsistently with Article  17.6(ii) of the Anti -Dumping  Agreement. However, at the oral hearing, Indonesia 
clarified that its claim regarding the standard of rev iew applied by the Panel was limited to Article  17.6(i) of the 
Anti-Dumping  Agreement and Article  11 of the DSU.  
38 Panel Report, paras.  7.160 and 8.1.b.i.  
39 Indonesia's appellant's submission, para.  6.3. WT/DS442/AB/R  
 
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anti-dumping measure at issue in this dispute. We also include a summary of the relevant Panel 
findings.  
5.1.1   Background and the measure at issue  
5.3.  On 13  August  2010, the EU  authorities initiated an anti -dumping investigation concerning 
imports of cert ain fatty  alcohols and their blends originating in India, Indonesia, and Malaysia.40 
5.4.  In their Preliminary  Determination41, the EU  authorities indicated that they had compared the 
normal value s and export price s of the exporting producers on an ex -works basis . The 
EU authorities also indicated that they had made due allowances in the form of adjustments for 
differences affecting prices and price comparability in accordance wit h Article  2(10) of the 
EU Basic Anti-Dumping Regulation.42 Where applicable and justif ied, adjustments had been made 
for differences in indirect taxes, transport, insurance, handling, loading and ancillary costs, packing 
costs, credit costs, and commissions.43  
5.5.  The adjustment made for commissions related to, inter alia, payments by one of the 
investigated Indonesian producers, PT  Musim Mas, to Inter -Continental Oils & Fats Pte Ltd 
(Singapore ) (ICOF -S), a related trading company based in Singapore. Specifically, the 
EU authorities established that PT  Musim Mas paid ICOF -S a mark -up for sales  made by ICOF -S on 
behalf of PT  Musim Mas to customers in the European  Union.44 The EU authorities found that the 
mark-up paid by PT Musim Mas to ICOF -S represented a payment for a service for which there was 
no corresponding pricing component on the domest ic side .45 The EU  authorities thus characterized 
this mark -up as a commission paid in respect of export sales to the European  Union, and treated it 
as a difference affecting price comparability for which a downward adjustment to the export price 
was warrant ed.46 The EU  authorities made this adjustment of their own volition and not at the 
request of any of the interested parties in the investigation.47 
5.6.  In their Preliminary Determination, the EU  authorities imposed provisional anti -dumping 
duties on imports of fatty alcohols from, inter alia, the two investigated Indonesian exporters, 
PT Musim Mas and PT  Ecogreen Oleochemicals (Ecogreen).  The provisional anti -dumping duty 
rates imposed on PT  Musim Mas and Ecogreen were 4.3% and 6 .3%, respectively.48 
5.7.  In commenting on the Preliminary Determination, PT  Musim  Mas argued that the 
EU authorities wrongly made a downward adjustment to the export price for a difference in 
commission in contravention of Article  2(10)(i) of the EU  Basic Anti -Dump ing Regulation.49 
According to PT  Musim Mas, the EU  authorities failed to carry out a reasoned assessment of the 
functions of ICOF -S and PT  Musim Mas to ascertain whether "they are a single economic entity".50 
                                                
40 European  Commission, Notice of initiation of an an ti-dumping proceeding concerning imports of 
certain fatty alcohols and their blends originating in India, Indonesia and Malaysia, Official Journal of the 
European  Union , C Series, No.  219 (13  August  2010), pp.  12-16 (Panel Exhibit IDN -12). 
41 Panel Exhibit IDN -3 (see supra , fn 3). 
42 Council Regulation (EC) No.  1225/2009 of 30  November  2009 on protection against dumped imports 
from count ries not members of the European Community, published in Official Journal of the European  Union , 
L Series, No.  343 (22  December  2009), p. 51 ff (EU Basic Anti -Dumping Regulation) (Panel Exhibit EU -3). 
43 Panel Report, para.  7.64 (referring to Preliminary De termination (Panel Exhibit IDN -3), recitals  20-21 
and 37 -38). 
44 Panel Report, para.  7.63 (referring to the Provisional Company -Specific Disclosure to PT Musim Mas, 
Annex  2: Calculation of dumping margin (Panel Exhibit IDN -33 (BCI)), p.  4). 
45 Panel Report, para. 7.84. 
46 Panel Report, para.  7.63 (referring to Preliminary Determination (Panel Exhibit IDN -3), recital  38). 
As the Panel explained, the EU  authorities used the terms "commission" and "mark -up" to denote the amount 
referred to in the Sale and Purchas e Agreement  between ICOF -S and PT Musim Mas as the "ICOF  Margin". 
(Ibid., fn  218 thereto)  
47 Panel Report, para.  7.61 and fn  213 thereto.  
48 Preliminary Determination (Panel Exhibit IDN -3), recitals  128-129. 
49 Article  2(10) of the EU  Basic Anti -Dumping Regul ation governs the adjustments that the 
EU authorities are to make to account for differences affecting price comparability. (See infra, para.  5.55.  ) 
50 Panel Report, para.  7.66 (quoting PT Musim Mas comments on the Preliminary Determination, 
10 June 2011 (Panel Exhibit IDN -34 (BCI)), p.  3). In particular, PT  Musim Mas contended that ICOF -S and 
PT Musim Mas form a "single economic entity" because ICOF -S is "merely the sales department of [PT  Musim 
Mas]", which in turn suggested that no adjustment should have been made. (Ibid., para.  7.67 (quoting 
 WT/DS442/AB/R  
 
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Further, even accepting that the downward adjust ment to the export price for the alleged 
differences in commissions was warranted, PT  Musim Mas argued that the EU  authorities failed to 
make a corresponding adjustment to the normal value given that ICOF -S "carries out exactly the 
same functions for domes tic sales as for export sales".51 
5.8.  In their Final  Determination52, the EU  authorities rejected the argument that no  adjustment 
should have been made. The EU  authorities instead reiterated their view that , in respect of certain 
of PT Musim Mas' export sales,  ICOF-S performs "functions which are similar to those of an agent 
working on a commission basis".53 The EU  authorities based this conclusion on: (i) the 
"commission mentioned in a contract covering export sales  only"; (ii)  the fact that "domestic sales, 
as well as some export sales to third  countries, are invoiced directly by [PT  Musim Mas] in 
Indonesia" in contrast to the "specific commission" received by ICOF -S for export sales that it 
handles on behalf of PT  Musim Mas54; and (iii)  the fact that ICOF -S also  sells products 
manufactured by unrelated producers.55 The EU  authorities also rejected PT  Musim Mas' claim that 
ICOF-S is involved in PT  Musim Mas' sales in Indonesia and that, therefore, a corresponding 
adjustment should have been made to the normal value .56 
5.9.  Consequently, the EU  authorities decided to impose definitive anti -dumping duties in respect 
of imports of fatty alcohols from, inter alia, PT Musim Mas and Ecogreen.57 The definitive 
anti-dumping duty rates imposed on PT  Musim Mas and Ecogreen were 4.2%  and 
7.3% , respectively.58 
5.10.   On 20  January  2012, PT  Musim Mas filed an action in the European  Union's General Court 
(General Court) for annulment of the anti -dumping duty. In particular, PT  Musim Mas challenged 
the downward adjustment made to its export price  for the mark -up paid to ICOF -S.59 Ecogreen 
filed a similar action for annulment before the General Court on 21  January  2012.60 
5.11.   Separately, on 10  March  2009, in unrelated proceedings (Interpipe v. Council of the 
European Communities61), the Court of First Ins tance of the European  Union found in favour of 
exporters of steel tubes contesting an analogous adjustment that had been made by the 
EU authorities for commissions paid by an exporter (Interpipe NTRP VAT) to its related trader.62 
This judgment was confirmed  on appeal by the Court of Justice on 16  February  2012 (Interpipe 
Judgment63), less than a month after the filing of Ecogreen's and PT  Musim Mas' actions for 
                                                                                                                                                  
PT Musim Mas comments on the Preliminary Determination, 10  June 2011 (Panel Exhibit IDN -34 (BCI)), 
p. 14)) 
51 Panel Report, para.  7.66 (quoting PT Musim Mas comments on the Preliminary Determination, 
10 June 2011 (Panel Exhibit IDN -34 (BCI)), p.  19). 
52 Panel Exhibit IDN -4 (see supra , fn 4). 
53 Panel Report, para.  7.68 (quoting Final Determination (Panel Exhibit IDN -4), recital  31). 
54 Panel Report, para.  7.68 (quoting Final Determination (Panel Exhibit IDN -4), recital  31). The 
EU authorities considered that the direct sales made by PT  Musim Mas were "structural" and "permanent", as 
opposed to being an anomaly. (Ibid.,  para. 7.69 (quoting Final Determination (Panel Exhibit IDN -4), 
recital  33)) 
55 Panel Report, para.  7.68 (referring to Final Determination (Panel Exhibit IDN -4), recitals  31-33). 
56 Panel Report, para.  7.69 (referring to Final Determination (Panel Exhibit IDN -4), recital  35). 
57 Panel Report, para.  2.1.  
58 See European  Commission, General Disclosure Document dated 26 August 2011, AD563, Proposal to 
impose definitive anti -dumping dutie s on imports of certain fatty alcohols and their blends originating in India, 
Indonesia and Malaysia  (General Disclosure Document) (Panel Exhibit  IDN-39), para.  124; and Final 
Determination (Panel  Exhibit IDN -4), recital  132. 
59 Panel Report, para.  7.133 (r eferring to the General Court (seventh Chamber), Judgment of 25  June 
2015, in Case T -26/12, PT  Perindustrian dan Perdagangan Musim Semi Mas (PT Musim Mas) v . Council of the 
European Union, ECLI:EU:T:2015:437 (PT Musim Mas Judgment) (Panel Exhibit  EU-4)). 
60 Panel Report, para.  7.133 (referring to General Court, Case T -28/12, PT Ecogreen Oleochemicals and 
Others v. Council of the European  Union (2013)).  
61 Court of First Instance of the European  Union, Case T -249/06, Interpipe Niko Tube and Interpipe 
NTRP  v. Council of the European  Union [2009] ECR  II. 
62 Panel Report, para.  7.134.  
63 Panel Report, para.  7.134 (referring to Court of Justice, Judgment of 16 February 2012 in joined 
Cases C -191/09  P and C -200/09  P, Council of the European Union (C -191/09 P) / E uropean Commission 
(C-200/09 P) v. Interpipe Nikopolsky Seamless Tubes Plant Niko Tube ZAT (Interpipe Niko Tube ZAT) and 
Interpipe Nizhnedneprovsky Tube Rolling Plant VAT (Interpipe NTRP VAT) (concerning Judgment of the Court of 
 WT/DS442/AB/R  
 
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annulment in their cases before the General Court. Following the confirmation of the Interpipe 
Judgment on appeal, the EU  authorities decided to reassess their conclusions concerning the 
impugned allowances in the fatty  alcohols investigation.64 
5.12.   In their Revised Determination65, the EU  authorities found that the adjustment made, 
pursuant to Article  2(10)( i) of the EU Basic Anti -Dumping Regulation, for the commission paid by 
Ecogreen to its related trading company was not warranted. The EU  authorities recalculated the 
dumping margin established for Ecogreen , found it to be de minimis , and therefore terminat ed the 
anti-dumping duty applicable to Ecogreen . However, with respect to PT  Musim Mas, the 
EU authorities maintained their view that the functions of ICOF -S were similar to those of "an 
agent working on a commission basis" and therefore considered that th e adjustment made for the 
mark-up was still justified.66 In sum, the Revised  Determination eliminated  the anti -dumping duty 
applicable to Ecogreen and confirmed the duty applicable to PT  Musim Mas.67 
5.13.   On 25  June 2015, the General Court rejected the action for  annulment introduced by 
PT Musim Mas , ruling that the EU  authorities had not erred in finding that ICOF -S had functions 
similar to those of "an agent working on a commission basis". The General Court also found that 
the EU  authorities had not breached the  principle of equality and non -discrimination in 
distinguishing PT  Musim Mas' situation from that of Ecogreen as regards the application of 
Article  2(10)(i) of the EU Basic Anti -Dumping Regulation.68 
5.1.2   The Panel's findings  
5.14.   Before the Panel, Indonesia claimed that the EU  authorities acted inconsistently with 
Articles  2.3 and 2.4 of the Anti -Dumping  Agreement by making an improper allowance for a factor 
that did not affect price comparability.69 Indonesia emphasized that its main contention was that 
the EU  author ities should not have made any adjustment to the export price in relation to the 
mark-up, and not that the EU  authorities erred "because the amount of the adjustment was 
improper".70 On this basis, the Panel observed that the amount of the allowance was not  at issue 
in this dispute.71 
5.15.   The Panel considered the principal question before it to be whether the EU  authorities had 
correctly characterized the mark -up that PT  Musim Mas paid to ICOF -S as a difference affect ing 
price comparability within the meaning of  Article  2.4 of the Anti -Dumping  Agreement. The Panel 
first set out its understanding of the legal standard under Article  2.4.72 The Panel then reviewed 
the EU  authorities' explanation and relevant record evidence with a view to determining whether 
an unbias ed and objective investigating authority could have treated the mark -up as a difference 
affecting price comparability.73 Thereafter, the Panel addressed each of the three lines of argument 
put forward by Indonesia , namely: (i)  that the EU  authorities mischa racterized the mark -up as a 
commission, instead of an internal transfer of funds within a "single economic entity ", and that this 
existence of a single economic entity precluded the EU  authorities from making an allowance for 
                                                                                                                                                  
First Instance of the Europ ean Union, Case  T-249/06, Interpipe Niko Tube ZAT and Interpipe NTRP VAT v. 
Council of the European Union [2009] ECR  II-383) (Interpipe Judgment ) (Panel Exhibit IDN -49)). 
64 Panel Report, para.  7.134.  
65 Council Implementing Regulation (EU) No. 1241/2012 of 11 December 2012 amending Implementing 
Regulation (EU) No. 1138/2011 imposing a definitive anti -dumping duty and collecting definitively the 
provisional duty imposed on imports of certain fatty alcohols and their blends originating in India, Indonesia 
and Malaysia, Official Journal of the European  Union , L Series, No.  352 (21  December  2012), pp.  1-5 (Revised 
Determination) (Panel Exhibit IDN -5). 
66 Panel Report, para.  7.135 (referring to Revised Determination (Panel Exhibit IDN -5), recital  12). 
67 Panel Repor t, para.  2.2. 
68 Panel Report, para.  7.136. (See also PT Musim Mas Judgment (Panel Exhibit EU -4), paras. 136 -137) 
Five years after the imposition of the definitive duties, the EU  authorities published a notice of expiry indicating 
that the anti -dumping meas ures prescribed by the Final  Determination would expire at midnight on 
12 November 2016. (European  Commission, Notice of the expiry of certain anti -dumping measures, Official 
Journal of the European  Union , C Series, No.  418 (12  November  2016), p.  3; and se ction 5.3  of this Report)  
69 Panel Report, para.  7.30 (referring to Indonesia's second written submission to the Panel, para.  5.1). 
70 Panel Report, p ara. 6.10 (quoting Indonesia's request for review of the Panel's interim report, 
para. 2.4). 
71 Panel Report, paras.  6.10-6.12, 6.83 -6.85, 7.38, and 7.123.  
72 Panel Report, paras.  7.55-7.61. 
73 Panel Report, paras.  7.63-7.98. WT/DS442/AB/R  
 
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the mark -up74; (ii) that the do wnward adjustment made by the EU  authorities to PT  Musim Mas' 
export price created an asymmetry between the ex -factory export price and the normal value75; 
and (iii) that the EU  authorities failed to provide a reasoned and adequate explanation for 
eventuall y treating the two Indonesian exporting producers (PT  Musim Mas and Ecogreen) 
differently in relation to the mark -up received by their respective related traders.76 
5.16.   Having addressed, and rejected, the three grounds on which Indonesia based its claim 
under A rticle 2.4 of the Anti -Dumping  Agreement, the Panel concluded that Indonesia had not 
demonstrated that the EU  authorities acted inconsistently with th is provision by making an 
improper deduction for a factor that did not affect price comparability. In addi tion, since 
Indonesia's claim under Article  2.3 of the Anti -Dumping  Agreement was consequential to a finding 
of inconsistency with Article  2.4, the Panel concluded that Indonesia had not demonstrated that 
the EU  authorities acted inconsistently with Articl e 2.3.77 
5.17.   Indonesia appeals certain aspects of the Panel's interpretation, analysis, and intermediate 
findings relating to Indonesia's claim under Article  2.4 of the Anti -Dumping  Agreement.78 
Indonesia challenges the Panel's interpretation of Article  2.4. In particular, Indonesia takes issue 
with the Panel's rejection of Indonesia's argument that the existence of what Indonesia refers to 
as a "single economic entity"79 is dispositive of whether a given mark -up qualifies as a difference 
affecting price comparabi lity under Article  2.4.80 In addition, Indonesia contends that the Panel 
erred in its application of Article  2.4, and acted inconsistently with Article  17.6(i) of the 
Anti-Dumping  Agreement and Article  11 of the DSU, in its review of the EU  authorities' eva luation 
of the relationship between PT  Musim Mas and ICOF -S, as well as  their treatment of the mark -up. 
We address each of Indonesia's grounds of appeal in turn.  
5.1.3   Interpretation of Article  2.4  
5.18.   Indonesia's appeal calls for us to consider certain issues rela ting to the interpretation of 
Article  2.4 of the Anti -Dumping  Agreement, particularly the third sentence of th is provision. We 
begin by setting out our understanding of Article  2.4, before examining the specifics of Indonesia's 
challenge to the Panel's int erpretation of this provision.  
5.19.   Article  2.4 and footnote 7 of the Anti -Dumping Agreement state:  
A fair comparison shall be made between the export price and the normal value. This 
comparison shall be made at the same level of trade, normally at the ex -factory level, 
and in respect of sales made at as nearly as possible the same time. Due allowance 
shall be made in each case, on its merits, for differences which affect price 
comparability, including differences in conditions and terms of sale, taxation, level s of 
trade, quantities, physical characteristics, and any other differences which are also 
demonstrated to affect price comparability.7 In the cases referred to in paragraph  3, 
allowances for costs, including duties and taxes, incurred between importation and 
resale, and for profits accruing, should also be made.  If in these cases price 
comparability has been affected, the authorities sha ll establish the normal value at a 
level of trade equivalent to the level of trade of the constructed export price, or shall 
make due allowance as warranted under this paragraph. The authorities shall indicate 
                                                
74 Panel Report, paras.  7.99-7.111 . 
75 Panel Report, paras.  7.112 -7.130.  
76 Panel Report, paras.  7.131 -7.159.  
77 Panel Report, paras.  7.160 -7.161.  
78 Indonesia's appeal is limited to the Panel's findings under Article  2.4, and does not address the 
Panel's consequential finding under Article  2.3 of the Anti -Dumping Agreement. In addition, Indonesia does not 
appeal the Panel's rejection of Indonesia's ar gument that the EU  authorities failed to provide a reasoned and 
adequate explanation for eventually treating PT  Musim Mas and Ecogreen differently in relation to the 
mark-ups paid to their respective traders.  
79 Before the Panel, and in its appellant's subm ission, Indonesia interchangeably used the terms "single 
economic entity", "very closely related companies", "closely affiliated companies", and "two entities that are 
closely intertwined". In response to questioning at the hearing, Indonesia confirmed tha t it had used these 
terms synonymously.  
80 Panel Report, paras.  7.103 -7.106.  WT/DS442/AB/R  
 
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to the parties in question what information is  necessary to ensure a fair comparison 
and shall not impose an unreasonable burden of proof on those parties.  
________  
7 It is understood that some of the above factors may overlap, and authorities shall ensure that 
they do not duplicate adjustments that h ave been already made under this provision.  
5.20.   Article  2.4 requires investigating authorities to ensure a fair comparison between the export 
price and the normal value and, to this end, to make due allowance, or adjustments, for 
differences affecting price co mparability.81 The obligation to ensure a fair comparison "lies on the 
investigating authorities".82 However, Article  2.4 does not prescribe a particular methodology by 
which investigating authorities must satisfy their obligation to ensure a fair comparison . 
5.21.   The requirement to make a fair comparison, set out in the first sentence of Article  2.4, 
presupposes that the component elements of the comparison  - i.e. the normal value and the 
export price  - have already been established. The focus of Article  2.4 is n ot merely on a 
comparison between the normal value and the export price, but predominantly on the means to 
ensure the fairness  of that comparison.83 For a comparison to be fair, it must be unbiased , 
objective , and even -handed .84 The second sentence of Articl e 2.4 identifies basic parameters that 
further the goal of achieving  a fair comparison, requiring investigating authorities to make the 
comparison at the same level of trade, normally at the ex -factory level, and in respect of sales 
made at as nearly as possible the same time.85 
5.22.   The third sentence of Article  2.4 makes clear that the "differences" for which due allowance 
must be made are those "which affect price comparability". As the Appellate  Body has explained, 
this refers to differences in characteristics of the compared transactions that have an impact, or 
are likely to have an impact, on the prices of the transactions.86 Conversely, Article  2.4 prohibits 
investigating authorit ies from making adjustments in relation to differences in charact eristics of 
the compared transactions when such differences have no impact on price comparability.87 The 
overarching obligation to ensure a fair comparison between the export price and the normal value  
informs the  understanding of the adjective "due" in the  third sentence of Article  2.4. This adjective 
qualifies the word "allowances", with these allowances being the means by which to achieve the 
fair comparison between the export price and the normal value . The Appellate Body has 
emphasized that, if proper " allowances" are not made, then the comparison made by the 
investigating authorit ies between the export price and the normal value will, by definition, not be 
"fair".88 Similarly, making allowances that are not warranted will render the comparison unfair.  
5.23.   The third sentence of Article  2.4 also includes a list of differences that may affect price 
comparability – namely , "differences in conditions and terms of sale, taxation, levels of trade, 
quantities, physical characteristics". Footnote  7 to the provision ac knowledges that some of the 
listed factors may overlap, and cautions investigating authorities to ensure that they do not 
duplicate adjustments resulting from such overlaps. The list in the third sentence of Article  2.4 is 
preceded by the term "including" and succeeded by "and any other differences which are also 
demonstrated to affect price comparability", indicating that this list is illustrative and not 
exhaustive.89 As the Appellate Body has clarified, "[t]here  are … no differences 'affect[ing] price 
comparability ' which  are precluded, as such, from being the object of an 'allowance '."90 Moreover, 
even with respect to the differences explicitly listed in the third sentence, there may be situations 
when those differences do not affect price comparability. In such situations , these differences must 
not be the subject of allowances.  
                                                
81 Appellate Body Report, EC – Fasteners (China) (Article  21.5 – China) , para.  5.204.  
82 Appellate Body Reports, EC – Fasteners (China) (Article  21.5 – China) , para.  5.163; EC – Fasteners 
(China) , para.  487; US – Hot-Rolled Steel , para.  178. 
83 Panel Report, Egypt – Steel Rebar , para.  7.333.  
84 Appellate Body Report, US – Softwood Lumber V (Article  21.5 – Canada) , para.  138. 
85 Appellate Body Report, US – Hot-Rolled Steel , para.  168; Pan el Report, Argentina – Poultry 
Anti-Dumping Duties , para.  7.235.  
86 Appellate Body Report, US – Zeroing (EC) , para.  157. 
87 Appellate Body Report, US – Zeroing (EC) , paras.  156-157. 
88 Appellate Body Report, US – Hot-Rolled Steel , para.  176. 
89 Appellate Body Report, US – Zeroing (EC) , para.  157. 
90 Appellate Body Report, US – Hot-Rolled Steel , para.  177. WT/DS442/AB/R  
 
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5.24.   Findings  by panels and the Appellate Body in prior disputes illustrate, to an extent, certain 
differences that may affect price comparability within the meaning of Article  2.4.91 While 
instructive, past disputes do not serve to delineate precise parameters for "dif ferences which affect 
price comparability" within the meaning of Article  2.4. To the contrary, the text of Article  2.4 
makes clear that "[d]ue allowance shall be made in each case , on its merits ".92 This means that 
the need to make due allowance must be ass essed in light of the specific circumstances of each 
case.93 Article  2.4 does not exclude a priori  "due allowances" being made with respect to any type 
of difference, as long as it is a difference affecting price comparability.  
5.25.   Bearing these considerations in mind, we turn to Indonesia's claim that the Panel erred in 
its interpretation of Article  2.4 of the Anti -Dumping Agreement . 
5.1.4   Whether the Panel erred in its interpretation of Article  2.4  
5.26.   Indonesia asserts that "[t]he key question in deciding how to treat  revenues and expenses 
of entities … is whether the entities are part of the same [single economic entity ]."94 This assertion 
underlies Indonesia's claim that the Panel erred in its interpretation of Article  2.4 of the 
Anti-Dumping Agreement . Indonesia argu es, first, that the Panel erred by articulating a legal 
standard that contained no reference to the relevance of a single economic entity. Specifically, 
Indonesia asserts that, in its interpretation of Article  2.4, the Panel did not address whether the 
existence of a single economic entity or the relationship between parties could affect the 
determination of whether a factor affected price comparability, even though Indonesia's arguments 
identified that as a key issue.95 Second, Indonesia contends that the P anel erred in stating that it 
was "not convinced that the existence of what Indonesia denotes as a 'single economic entity' is 
dispositive of whether a given mark -up qualifies as a difference which affects price comparability 
under Article  2.4."96 
5.27.   The Europ ean Union highlights that Article  2.4 does not contain any textual element 
suggesting that the circumstance that a trader and the exporter/producer are related or constitute 
a single economic entity plays a decisive role for the purpose of making an adjust ment in order to 
ensure a fair comparison.97 The European  Union also argues that Indonesia's claims on appeal are 
the result of a "manifestly partial and incorrect" reading of the Panel Report and that, for this 
reason, they should be rejected.98 
5.28.   The United  States agrees with the Panel that whether an entity constitutes a 
single  economic entity would not be dispositive of the need for adjustments under Article  2.4 of 
the Anti -Dumping  Agreement, and that , depending on the underlying facts, transactions between  
affiliated entities may impact price comparability.99 
5.29.   We begin with Indonesia's first line of argument on appeal. Indonesia contends that the 
Panel erred because it articulated a legal standard that contained no reference to whether the 
existence of a sing le economic entity or the relationship between parties could affect the 
determination of whether a factor affected price comparability within the meaning of Article  2.4.100 
The Panel structured its analysis of Indonesia's claim under Article  2.4 as follows. After setting out 
its understanding of the legal standard under Article  2.4101, the Panel reviewed whether the 
EU authorities' explanations revealed a sufficient evidentiary basis for treating the mark -up in 
                                                
91 See e.g. Appellate Body Report, US – Hot-Rolled Steel , para.  168; and Panel Reports, Korea – Certain 
Paper , para.  7.147; and US – Softwood Lu mber V, para.  7.357.  
92 Emphasis added.  
93 Appellate Body Report, EU – Biodiesel (Argentina) , para.  6.87. See also Appellate  Body Report, US – 
Hot-Rolled Steel , para.  179. 
94 Indonesia's appellant's submission, para.  3.114.  
95 Indonesia's appellant's submissio n, paras. 2.54 and  3.91 (quoting Panel Report , para. 7 .103 
(fns omitted); and referring to paras.  7.54-7.62).  
96 Indonesia's appellant's submission, para.  3.110 (referring to Panel Report, paras.  7.102 -7.107).  
97 European  Union's appellee's  submission, para.  93 (quoting Appellate Body Report, India – 
Patents  (US), para.  45). 
98 European Union's appellee's submission, paras.  111 and 139.  
99 United  States' third participant's submission, para.  8. 
100 Indonesia's appellant's submission, para.  3.91 (referring to Panel Report, paras.  7.54-7.62).  
101 Panel Report, paras.  7.55-7.61. WT/DS442/AB/R  
 
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question as a difference which affects price compa rability.102 Next, the Panel specifically and 
separately addressed each of Indonesia's argument s, namely: (i)  that the existence of a 
single  economic entity precluded the EU authorities from making an allowance for the mark -up103; 
(ii) that the allowance resulted in an asymmetrical comparison with the normal value104; and 
(iii) that the different outcomes for the two Indonesian pr oducers demonstrate that the 
EU authorities' analysis was arbitrary.105 
5.30.   In setting out its "understanding of the legal standard unde r Article  2.4 as relevant to the 
claim and arguments before [it]"106, the Panel focused on the terms of the treaty as explicitly 
spelled out in Article  2.4. The Panel's understanding of Article  2.4107 is consonant with our 
interpretation of the provision as di scussed in section  5.1.3  above.  
5.31.   The text of Article  2.4 does not contain the words "single economic entity", nor does it 
contain any explicit refer ence to affiliations or relationships between different entities.108 
Accordingly, we do not consider it problematic that, in setting out its understanding of Article  2.4, 
the Panel focused on the terms of the treaty and did not refer, in the abstract, to the  relevance of 
the relationship between entities . 
5.32.   We also note that, in focusing  on the terms of the treaty, the Panel highlighted that the list 
of factors that could potentially affect price comparability, in the third sentence of Article  2.4, is an 
illustrative list, not an exhaustive list. The Panel also referred to the Appellate Body's reasoning 
that, given that this list is followed by the phrase "and any other differences which are also 
demonstrated to affect price comparability", "[t]here are … no differences 'affect [ing] price 
comparability ' which  are precluded, as such, from being the object of an 'allowance' ."109 
5.33.   Furthermore, we recall that the third sentence of Article  2.4 states that due allowance shall 
be made "in each case, on its merits". A rticle 2.4 thus establishes that the need to make due 
allowance must be assessed in light of the specific circumstances of each case.110 It follows that  
the existence of a close relationship between transacting companies would be pertinent to the 
extent that  the relationship affects  the relevant  transactions in such a way as to affect  the 
comparability of the export price and the normal value . 
5.34.   In any event, we observe that the Panel examined Indonesia's assertions regarding the 
relevance of a "single economic  entity" in a subsequent part of its analysis when it addressed 
Indonesia's argument that, in this case, the existence of a single economic entity precluded the 
EU authorities from making an allowance for the mark -up. The Panel expressly considered the 
question of whether the existence of a single economic entity necessarily means that the payment 
of a mark -up between related entities can never affect price comparability.111 
5.35.   Indonesia advances a second line of argument on appeal. Indonesia asks us to reverse what 
Indonesia describes as the Panel's finding that "the relationship between closely affiliated entities, 
including a closely affiliated 'downstream participant', is not relevant to the determination of a 
price adjustment under Article  2.4 because those entities 'could transact for goods and services at 
                                                
102 Panel Report, paras.  7.63-7.98. 
103 Panel Report, paras.  7.99-7.111.  
104 Panel Report, paras.  7.112 -7.130 . 
105 Panel Report, paras.  7.131 -7.159.  
106 Panel Report, para.  7.54. 
107 Panel Report, paras.  7.55-7.61. 
108 We note that Article  2.3 of the Anti -Dumping  Agreement, which concerns construction of the export 
price, recognizes that an "association" between an exporter and another company may be relevant to the 
determination of the expo rt price and may make the price paid between these two entities "unreliable". The 
fourth and fifth sentences of Article  2.4 identify additional factors that are to be taken into consideration when 
the situation contemplated in Article  2.3 arises. However, these provisions are not relevant to the issues raised 
in this appeal.  
109 Panel Report, para.  7.56 (quoting Appellate Body Report, US – Hot-Rolled Steel , para.  177).  
110 Appellate Body Report, EU – Biodiesel (Argentina) , para.  6.87. 
111 Panel Report, paras.  7.103-7.107.  WT/DS442/AB/R  
 
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arm's -length, regardless of how closely intertwined their control and ownership might be'."112 
However, we see no such finding in the Panel Report. Instead, the Panel stated:  
We are not convinced that the ex istence of what Indonesia denotes as a "single 
economic entity" is dispositive of whether a given mark -up qualifies as a difference 
which affects price comparability under Article  2.4. This is because we consider it 
possible that two entities could transac t for goods and services at arms -length, 
regardless of how closely intertwined their control and ownership might be.113 
5.36.   Thus, the Panel did not find the relationship between entities to be irrelevant to an 
investigating authority's assessment under Article  2.4. The Panel found that such a relationship 
was not "dispositive" of whether a given mark -up qualifies as a difference which affects price 
comparability under Article  2.4. This is in keeping with the Panel's earlier statement that "[t]here 
are … no differ ences 'affect[ing] price comparability' which are precluded, as such, from being the 
object of an 'allowance'."114 Moreover, the Panel explicitly recogni zed that "it is possible that a 
transaction between two entities within what Indonesia denotes as a 'single economic entity' could 
reflect an expense that must be recovered and thus would impact price comparability."115 The 
Panel explained that, in its view, the "dividing line" between (a) an internal allocation of funds 
within a single economic entity whi ch is not reflected in the producer's pricing decision and (b) an 
expense that is linked to either the export side or the domestic side or to both sides but with 
different amounts such that price comparability is affected, is dependent on the particular si tuation 
and evidence before the investigating authority in a given case where the proper characterization 
of the payment in question is at issue.116 We do not understand the Panel's reasoning to stand for 
the proposition that the nature and degree of affilia tion between related companies are irrelevant 
to the issue of whether any allowances should be made in order to ensure a fair comparison 
between the normal value and the export price. Rather, we consider that the Panel properly 
emphasized the case -specific  nature of an investigating authority's assessment under Article  2.4. 
5.37.   For Indonesia, the Panel erred in stating that it was not convinced that the existence of 
what Indonesia denotes as a "single economic entity " is dispositive of whether a given mark -up 
qualifies as a difference which affects price comparability under Article  2.4.117 While acknowledging 
that Article  2.4 does not specifically refer to the treatment of transactions between affiliated 
parties in the calculation of anti -dumping duties, Indonesia  nevertheless contends that it is 
"axiomatic … that whether transactions take place between closely affiliated or independent parties 
is highly relevant for the dumping analysis."118 Indonesia relies upon the Appellate Body's findings 
in US – Hot-Rolled Stee l to support its assertion that a price charged by one company  within a 
"single economic entity" to another within the same entity might not reflect commercial 
considerations.119 
5.38.   The European  Union contends that the Appellate Body report in US – Hot-Rolled S teel does 
not demonstrate that the affiliation between entities is key to assessing whether or not an 
adjustment under Article  2.4 is warranted. For the European  Union,  that case demonstrates the 
contrary because it is an example of when an affiliation or close links between the 
producer/exporter and the downstream seller were immaterial to the calculation of the dumping 
margin.120 
5.39.   The Appellate Body's reasoning in US – Hot-Rolled Steel  concerned transactions "in the 
ordinary course of trade" within the meani ng of Article  2.1 of the Anti -Dumping  Agreement , rather 
than "due allowances" within the meaning of Article  2.4. Nonetheless, the observations made in 
that dispute  illustrate the diversity of possible permutations of transactions between related 
companies that an investigating authority may encounter in establishing the normal value, or the 
                                                
112 Indonesia's appellant's submission, para.  3.132 (quoting Panel Report, para.  7.103).  
113 Panel Report, para. 7.103. (fn omitted)  
114 Panel Report, para.  7.56 (quoting Appellate Body Report, US – Hot-Rolled Steel , para.  177).  
115 Panel Report, para.  7.103. 
116 Panel Report, paras.  7.105 -7.106.  
117 Indonesia's appellant's submission, para. 3.110 ( quoting  Panel Report, para.  7.103). 
118 Indonesia's appellant's submission, para.  3.17. 
119 Indonesia's appellant's submission, paras.  3.18-3.21. 
120 European  Union's appellee's submission, paras.  68-72. WT/DS442/AB/R  
 
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export price.121 The examples referred to by the Appellate Body in that dispute  also illustrate that 
there are instances when the affiliation between transacting entities will have an impact on the 
dumping analysis, and there are other instances when such affiliation will not have an impact on 
the dumping analysis. This is consonant with the requirement in the third sentence of Article  2.4 
that investigating author ities make due allowances "in each case, on its merits, for differences 
which affect price comparability".  A contrario , investigating authorities must not make allowances 
for differences that do not affect price comparability.  
5.40.   Indonesia also invokes the Ap pellate Body 's reference in US – Hot-Rolled Steel  to a 
"single  economic enterprise" in support of its arguments.122 We understand the Appellate Body to 
have used the words " single economic enterprise "123 in its report in that dispute as a short -hand to 
describe entities that are legally distinct but share common ownership. The use of these words was 
not intended to convey a general legal concept  under the Anti -Dumping  Agreement  in respect of 
which certain consequences would automatically follow if a sing le economic enterprise were found 
to exist. Instead, the Appellate Body's reasoning in US – Hot-Rolled Steel  reinforces our view that 
the focus of the investigating authority's assessment is not on the nature of the relationship 
between related companies per se, but rather on whether that relationship can be demonstrated to 
be a factor that impacts the prices of the relevant transactions.124 
5.41.   Indonesia draws further support for its argument from the reasoning of the panel in Korea – 
Certain Paper  and that of t he Appellate Body in EC – Fasteners (China)  relating to claims under 
Article  6.10 of the Anti -Dumping  Agreement.125 According to Indonesia, "[t]he key question is 
whether, in the words of the Korea – Certain Paper panel, two entities are in a relationship cl ose 
enough to warrant their treatment as a single entity for the purposes of the dumping analysis."126 
5.42.   The reasoning relied upon by Indonesia in th ose disputes relates to Article  6.10, rather than 
Article  2.4 of the Anti -Dumping  Agreement. Article  6.10 requi res investigating authorities "as a 
rule" to "determine an individual margin of dumping for each known exporter or producer 
concerned of the product under investigation." Given the different wording and functions of 
Article  2.4 and Article  6.10, we are not  persuaded that the criteria applicable to an investigating 
authority's assessment under Article  6.10 are necessarily relevant to th e understanding of 
Article  2.4. In any event, unlike Indonesia, we do not read the panel's reasoning in Korea – Certain 
Paper or that of the Appellate Body in EC – Fasteners (China)  as prescribing uniform treatment of 
the transactions between affiliated companies. Instead, the adjudicators' reasoning in those 
disputes underscores that whether multiple exporters may be considere d as a single entity for the 
purposes of Article  6.10 is dependent on the circumstances of each case.127 
                                                
121 The Appellate  Body provided, as an example, a situation in which the parties to a transaction have 
common ownership, noting that, although the parties are legally distinct persons, usual commercial principles 
"might n ot" be respected between them. At the same time, the Appellate  Body noted that there may be 
instances in which, even where the parties to a sales transaction are entirely independent, a transaction might 
not be "in the ordinary course of trade". (Appellate  Body Report, US – Hot-Rolled Steel , paras.  141 and 143 
and fn  106 thereto)  
122 Indonesia's appellant's submission, paras.  2.33-2.35, 3.18, 3.21 -3.23, and 3.79.  
123 The Appellate Body explained that, instead of a sale between two enterprises that are economically 
independent and transacting at market prices, transactions between entities with common ownership might not 
reflect market prices when  such transactions are  "used as a vehicle for transferring resources within the 
single  economic enterprise ." (Appellate Body Report, US – Hot-Rolled Steel , para.  141 (emphasis added))  
124 We observe that the concept of a "single economic entity" has legal significance under EU la w. 
(See PT Musim Mas Judgment (Panel Exhibit EU -4), paras.  43-48)  
125 Indonesia's appellant's submission, paras.  3.62-3.68 ( quoting  Panel Report, Korea – Certain Paper , 
paras.  7.161 and 7.165 ; and referring to Appellate Body Report, EC – Fasteners (China) , paras. 358, and 
371-374).  
126 Indonesia's appellant's submission, fn  111 to para.  3.67. 
127 The panel in Korea – Certain Paper  emphasized that "whether or not the circumstances of a given 
investigation justify" the treatment of multiple exporters as a single e xporter for purposes of determination of 
the dumping margin "must be determined on the basis of the record of that investigation". (Panel Report, 
Korea – Certain Paper , para.  7.161) Similarly, in EC – Fasteners (China) , the Appellate Body considered that 
assessing whether a single dumping margin and a single anti -dumping duty for a number of exporters is 
inconsistent with Article  6.10 will depend on the existence of a number of situations, which would signal that, 
albeit legally distinct, two or more export ers are in such a relationship that they should be treated as a single 
entity. (Appellate Body Report,  EC – Fasteners (China) , para.  376) WT/DS442/AB/R  
 
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5.43.   At the oral hearing, Indonesia acknowledged  that transactions between closely affiliated 
companies could be the subject of allowances under Article  2.4, but maintained that the affiliation 
between such companies would necessarily influence the investigating authorit ies' calculation of 
the amount  of the allowance to be made. However, as the European  Union highlighted at the oral 
hearing, Indonesia repeatedly asserted before the Panel that its main contention was that the 
EU authorities should not have made any adjustment to the export price in relati on to the 
mark-up, and not that the EU  authorities erred "because the amount of the adjustment was 
improper".128 Hence, the amount  of the allowance is not at issue in this dispute.129 
5.44.   For all of these reasons, the Panel did not err in setting out its "understa nding of the legal 
standard under Article  2.4 as relevant to the claim and arguments before [it]".130 Nor did  the Panel 
err in stating that it was "not convinced that the existence of what Indonesia denotes as a 
'single  economic entity' is dispositive of whe ther a given mark -up qualifies as a difference which 
affects price comparability under Article  2.4."131 Consequently, we find that Indonesia has not 
demonstrated that the Panel erred in its interpretation of Article  2.4 of the Anti -Dumping 
Agreement . 
5.45.   Having so found, we wish to be clear on what we are not saying. We are not ruling , nor do 
we consider that the Panel ruled,  that the nature and degree of affiliation between related 
companies is irrelevant  to the issue of whether any allowances should be made in order to ensure 
a fair comparison between the normal value and the export price. Nor do we  rule, in the abstract, 
on the circumstances  in which  an inquiry into the nature of the relationship between transacting 
entities  will suffice or be determinative of the issue of whether allowances should be made 
pursuant to Article  2.4 of the Anti -Dumping Agreement . 
5.1.5   Whether the Panel erred in its application of Article  2.4  
5.46.   In appealing the Panel's application of Article  2.4 of the Anti -Dumping Agreement , Indonesia 
challenges the Panel's review of whether the EU  authorities' explanations revealed a sufficient 
evidentiary basis for treating the mark -up paid by PT  Musim Mas to ICOF -S as a difference 
affecting price comparabilit y.132 Indonesia also challenges the Panel's evaluation and rejection of 
Indonesia's arguments: (i) that the existence of a single economic entity precluded the 
EU authorities from making an allowance for the mark -up133; and (ii) that the allowance resulted in 
an asymmetrical comparison with the normal value.134 Indonesia does not appeal the 
Panel's  evaluation of the different treatment accorded to Ecogreen and to PT Musim Mas in the 
Revised Determination.135 
5.47.   The European  Union requests us to reject Indonesia's argu ments.136 The European  Union 
submits that all of Indonesia's claims of error are predicated on Indonesia's assertion that "[t]he 
key question in deciding how to treat revenues and expenses of entities … is whether the entities 
are part of the same [single ec onomic entity ]."137 For the European  Union, if we find that this 
assertion is not well  founded, we should consequently reject all of Indonesia's claims that the 
Panel erred in its application of Article  2.4 to the facts of this case.138 The European  Union aver s 
that Indonesia's claims on appeal are the result of a partial and incorrect reading of the 
Panel  Report and that, for this reason too, they should be rejected.139 
5.48.   Indonesia underlines that the relevance of the existence of a "single economic entity" was 
the key question to have been addressed by the Panel, and that the Panel failed to address it 
                                                
128 Panel Report, para.  6.10 (referring to Indonesia's request for review of the Panel's interim report, 
para. 2.4). 
129 Panel Report, paras.  6.10-6.12, 6.83 -6.85, 7.38, and 7.123.  
130 Panel Report, paras.  7.54-7.61. 
131 Panel Report, para.  7.103. (fn omitted)  
132 Panel Report, paras.  7.63-7.98. 
133 Panel Report, paras.  7.99-7.111.  
134 Panel Report, paras.  7.112 -7.130.  
135 Panel Report, paras.  7.131 -7.159.  
136 European  Union's appellee's submission, paras.  105 and 312.  
137 Indonesia's appellant's submission, para.  3.114.  
138 European  Union's appellee's submission, paras.  105-110. 
139 European Union's appellee's submission, para.  139. WT/DS442/AB/R  
 
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properly. For example, according to Indonesia, the costs of services performed by entities within a 
single economic entity are, for dumping purposes, indirect selli ng expenses that are included in  the 
normal value and export price, and may therefore not be deducted  from the normal value or 
export price.140 Indonesia goes on to state that:  
… the Panel fundamentally misconstrued the importance of the question of whether [a 
single economic entity] exists. As explained above, this is, very simply, that if money 
is paid from outside to an entity within [a single economic entity], that money is 
revenue for the [single economic entity] as whole. If an entity transfers money to  
another entity within the same [single economic entity], that transfer is not an 
expense to the [single economic entity] as a whole. … The key question in deciding 
how to treat revenues and expenses of entities, therefore, is whether the entities are 
part of the same [single economic entity].141 
5.49.   These statements, and many more in Indonesia's appellant's submission142, lend credence 
to the European  Union's assertion that Indonesia's claims of error are predicated on our 
acceptance of Indonesia's view as to the correct interpretation of Article  2.4. As discussed in 
section  5.1.4  above, we do not consider that the Panel erred in its interpretation of Articl e 2.4, or 
that the existence of a single economic entity is dispositive of whether a given mark -up qualifies as 
a difference which affects price comparability under Article  2.4. 
5.50.   In response to questioning at  the hearing, Indonesia identified what it consid ered to be 
examples of the independent bases for its claim that the Panel erred in its application of 
Article  2.4, beyond its assertion that the Panel articulated and applied an incorrect legal standard 
under Article  2.4. Indonesia referred to the Panel's statement that the Panel considered "it possible 
that two entities could transact for goods and services at arms -length, regardless of how closely 
intertwined their control and ownership might be."143 According to Indonesia, having made this 
statement, the P anel erred by not scrutinizing whether the EU  authorities had properly examined 
whether the relevant transactions were at arm's  length.  
5.51.   We do not consider this argument by Indonesia to be a distinct challenge to the Panel's 
application of Article  2.4. The statement to which Indonesia refers was made by the Panel in the 
context of its rejection of Indonesia's argument that a "single economic entity" is dispositive of 
whether a given mark -up qualifies as a difference affecting price comparability under Articl e 2.4.144 
The Panel was not espousing a stand -alone criterion under Article  2.4 that was then to be applied 
to the facts of this case. Instead, as discussed above, the Panel correctly emphasized that an 
inquiry under Article  2.4 is dependent on the particula r situation and evidence before the 
investigating authorit ies in a given case.145 Thus, to the extent that Indonesia's claim that the 
Panel erred in its application of Article  2.4 is premised on Indonesia's argument that the existence 
of a single economic en tity is dispositive of whether a given mark -up qualifies as a difference 
which affects price comparability under Article  2.4, we consider it unnecessary to examine further 
these aspects of Indonesia's claim.  
5.52.   That said, we recall that , in response to questioning at the hearing,  Indonesia also pointed 
to its argument that the Panel erred by implying that, when confronted with transactions between 
closely affiliated parties, an investigating authority may replace the expenses actually inc urred by 
those parties with the expenses that would have been incurred had the producing entity obtained 
the service from an independent provider.146  
5.53.   We address below what we consider to be the remaining aspects of Indonesia's claim that 
the Panel erred in its application of Article  2.4 of the Anti -Dumping Agreement , namely , that the 
Panel erred: (i)  in its review of whether the EU  authorities' explanations revealed a sufficient 
                                                
140 Indonesia's appellant's submission, para.  3.83. 
141 Indonesia's appellant's submission, para.  3.114.  
142 See e.g. Indonesia's appellant's submission, paras.  3.97, 3.115, 3.119, 3.129 -3.131, 3.137, 3.148, 
3.152, 3.168, and 3.182.  
143 Panel Report, para.  7.103.  
144 Panel Report, para.  7.103.  
145 Panel Report, paras.  7.106 -7.107.  
146 Indonesia's appellant's submission, para.  3.165 (referring to Panel Report, paras.  7.126 -7.130).  WT/DS442/AB/R  
 
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evidentiary basis for treating the mark -up paid by PT  Musim Mas to ICOF -S as a d ifference 
affecting price comparability147; and (ii)  in its evaluation and rejection of Indonesia's argument 
that the allowance resulted in an asymmetrical comparison with the normal value, including by 
allegedly finding that the investigating authorit ies may replace the expenses actually incurred by 
the exporter with hypothetical expenses.148 
5.1.5.1   Whether the Panel erred in its review of the EU  authorities' treatment of the 
mark -up 
5.54.   Indonesia challenges the Panel's analysis of whether the EU  authorities' explanation s 
revealed a sufficient evidentiary basis for treating the mark -up in question as a difference which 
affects price comparability.149 
5.55.   We recall that , in making the downward adjustment to the export price, the EU  authorities  
acted pursuant to Article  2(10)(i) of the EU Basic Anti -Dumping Regulation , which mandates:  
An adjustment shall be made for differences in commissions paid in respect of the 
sales under consideration.  
The term "commissions " shall be understood to include the mark -up received by a 
trader of the product or the like product if the functions of such a trader are similar to 
those of an agent working on a commission basis.150 
5.56.   We also recall that Indonesia has not, in these proceedings, challenged Article  2(10)(i) 
"as such"  and the Panel did not assess the conformity of Article  2(10)(i) itself with Article  2.4 of 
the Anti -Dumping  Agreement. Rather, the Panel observed that Article  2.4 does not prescribe a 
specific methodology for ensuring a fair comparison.151 The Panel also underlined that its 
evalu ation of the EU  authorities' approach was to be understood "within the parameters of the 
particular investigation at issue in these proceedings".152  
5.57.   In its evaluation, the Panel observed that the EU  authorities' finding that ICOF -S had 
"functions … similar to those of an agent working on a commission basis" was based on a number 
of considerations. The Panel noted the EU  authorities' reliance on PT  Musim Mas' direct sales to 
domestic and export customers as support for its finding that ICOF -S was not an inter nal sales 
department of PT  Musim Mas.153 The Panel also took into account the EU  authorities' reliance on 
the fact that a substantial proportion of ICOF -S' trade was in products of unrelated entities . The 
EU authorities had relied on this fact  to support  their inference that ICOF -S was not dependent to 
any significant degree on PT  Musim Mas for its revenue stream or the operation of its business.154 
In addition, the Panel considered that the Sale and Purchase Agreement relied upon by the 
EU authorities supporte d their view that ICOF -S had "functions … similar to those of an agent 
working on a commission basis",  rather than  Indonesia's characterization of ICOF-S as PT  Musim 
Mas' closely  intertwined internal sales department.155 
5.58.   Following its review, the Panel concl uded:  
[T]he EU  authorities had a sufficient evidentiary basis … for establishing that the 
mark-up was a factor that impacts the prices of the product and that was linked 
                                                
147 Panel Report, paras.  7.63-7.98. 
148 Panel Report, paras.  7.112 -7.130 . 
149 Indonesia's appellant 's submission, paras.  3.201 -3.213.  
150 Panel Exhibit EU -3. 
151 Panel Report, para.  7.92 (referring to Appellate Body Reports, US – Zeroing (EC) , para.  146; and 
US – Softwood Lumber V , para.  175; and Panel Report, China – HP-SSST (EU) , para.  7.78; EC – Fastener s 
(China) , para.  7.297; EC – Tube or Pipe Fittings , para.  7.178; US – Zeroing (EC) , para.  7.260; and US – 
Softwood Lumber V , para.  7.167).  
152 Panel Report, para.  7.92. 
153 Panel Report, para.  7.93. 
154 Panel Report, para.  7.94 (referring to PT  Musim Mas Judgmen t (Panel Exhibit  EU-4), para.  54).  
155 Panel Report, para.  7.95 (referring to Sale and Purchase Agreement between PT  Musim Mas and 
Inter-Continental Oils & Fats Pte Ltd (ICOF -S) (1 January 2009) (Panel Exhibit  IDN-24 (BCI)), Section  7.3). WT/DS442/AB/R  
 
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exclusively to the export side, therefore constituting a difference which affects pric e 
comparability under Article  2.4.156 
5.59.   In our view, the Panel critically examined the findings by the EU  authorities, including the 
evidence that the EU  authorities identified as the basis for their findings. In particular, the Panel 
found that, in examining the role of ICOF -S under the framework of Article  2(10)(i) of the EU Basic 
Anti-Dumping Regulation, the EU  authorities relied on several evidentiary bases to arrive at their 
finding that ICOF -S had functions similar to an agent working on a commission basi s.157 Moreover, 
the Panel considered that the EU  authorities' explanations corroborated their finding that the 
mark-up paid by PT  Musim Mas to ICOF -S represented a payment for which there was 
no corresponding pricing component on the domestic side.158 Accordin gly, the Panel held that the 
EU authorities' explanations supported their finding that the mark -up constituted a difference 
affecting price comparability within the meaning of Article  2.4.159 
5.60.   Hence, in review ing the EU  authorities' evaluation , the Panel correctly focused on whether 
that evaluation was consistent with Article  2.4 of the Anti -Dumping  Agreement. We therefore 
disagree with Indonesia that "the Panel made no effort … to address whether or how the 
relationship between closely affiliated entities mig ht affect the determination of price 
adjustments."160 
5.1.5.2   Whether the Panel erred in its  analysis of whether the EU  authorities incorrectly 
deducted ICOF -S' selling, general and administrative costs  and profit  
5.61.   Indonesia also contends that the Panel erred in its analysis of whether the allowance for the 
mark-up resulted in an asymmetrical comparison with the normal value.161 We recall that the 
Panel first addressed and rejected Indonesia's contention that there was an asymmetry between 
the ex -factory export price an d the ex -factory normal value established by the EU  authorities for 
PT Musim Mas.162 Second, the Panel addressed and rejected Indonesia's argument that the 
EU authorities were precluded from deducting an allowance that was calculated based on 
ICOF-S' profit and loss statement ( P&L) and what the  EU authorities  considered to be a reasonable 
profit margin for the chemical sector.163 Indonesia appeals both aspects of the Panel's finding. 
We summarize the factual background relating to this argument before addressin g Indonesia's 
specific challenges to the Panel's finding.  
5.62.   The Panel observed that the P&L submitted by PT  Musim Mas as part of its response to the 
EU authorities'  anti-dumping questionnaire provided a breakdown of the prices to be compared.164 
Both the expor t price and the normal value included similar allocations of amounts for selling, 
general and administrative costs ( SG&A ), encompassing identical percentage amounts for 
marketing and selling expenses.165 Further, the P&L submitted by PT  Musim Mas reflected amounts 
of profit pertaining to the product concerned both for PT Musim Mas' domestic sales in Indonesia  
and for PT Musim Mas' export sales through ICOF -S that were destined for the European  Union.166 
5.63.   As discussed at paragraph  5.59.  above, the EU  authorities found that the mark -up paid by 
PT Musim Mas to ICOF -S represented a payment for which there was no corresponding pricing 
component on the domestic side.167 The EU  authorities also found that the mark -up constituted a 
                                                
156 Panel Report, pa ra. 7.97. 
157 Panel Report, para.  7.96. 
158 Panel Report, para.  7.93. 
159 Panel Report, paras.  7.96-7.97. See also paras.  7.73-7.88. 
160 Indonesia's appellant's submission, para.  3.93. 
161 Panel Report, paras.  7.112 -7.130.  
162 Panel Report, para.  7.125.  
163 Panel Report , para.  7.130.  
164 Panel Report, para.  7.119 (referring to Excel file "PTMM definitive disclosure.xls" (Panel Exhibit  EU-12 
(BCI)), spreadsheet  2.3 (TABLE G - PL - (Profit and Loss) - of the exporting producer and each related 
company), row  45 columns F and G). 
165 Panel Report, para.  7.120.  
166 Panel Report, para.  7.121 (referring to Excel file "PTMM definitive disclosure.xls" (Panel Exhibit  EU-12 
(BCI)), spreadsheet  2.3 (TABLE G - PL - (Profit and Loss) - of the exporting producer and each related 
company), row  44 columns F and G).  
167 Panel Report, paras.  7.84, 7.93, and 7.120.  WT/DS442/AB/R  
 
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difference affecting price comparability.168 In establishing the amount  of the allowance to be made 
in respect of this mark -up, the EU  authorities considered that the close ties between PT  Musim Mas 
and ICOF -S had the potential to affect the reliability of the mark -up of 5% spelled out in their Sale 
and Purchase Agreement.169 Hence, the EU  authorities calculated the amount of the mark -up on 
the basis of the SG&A reflected in ICOF -S' P&L.170 To th is, the EU  authorities added what they 
considered to be a reasonable profit margin for the chemical sector. The EU  authorities used the 
sum of these two amounts rather than the margin specified in the Sale and Purchase Agreement 
between PT  Musim Mas and IC OF-S.171 The resulting amount "was actually very close to the 
mark-up ICOF -S was entitled to according to the Sale and Purchase Agreement."172 The 
EU authorities then deducted this amount from the export price.173 
5.64.   On appeal, Indonesia asserts that the EU  authori ties treated PT  Musim Mas and ICOF -S 
together as the collective seller of the product for the purpose of assigning a single dumping 
margin, pursuant to Article 6.10 of the Anti -Dumping  Agreement.174 Indonesia maintains that the 
Panel ignored Indonesia's argu ment that , "if ICOF -S and PT  Musim Mas form part of" a 
single  economic entity, then both ICOF-S' and PT Musim Mas' expenses are the expenses of the 
single economic entity as a whole, "for whom a dumping margin [is] being calculated".175 
Indonesia's argument appears to recast its principal assertion that the EU  authorities should have 
characterized the mark -up as an internal transfer of funds within a "single economic entity", 
instead of a difference affecting price comparability.176 We have already addressed an d rejected 
this argument above.  
5.65.   Moreover, we note that Indonesia has not pointed to any  evidence  on the record support ing 
its assertion that the EU  authorities treated ICOF -S and PT  Musim Mas collectively as a 
single  entity for purposes of assigning the du mping margin pursuant to Article  6.10 of the 
Anti-Dumping  Agreement.177 Nor did the Panel "accept Indonesia's conception that the 
EU authorities treated ICOF -S and PT  Musim Mas as the collective 'seller' of the product for the 
purposes of determining the dum ping margin."178 Given that the case before us does not involve 
any finding that the EU  authorities treated PT  Musim Mas and ICOF -S as a single entity  for 
purposes of assigning the dumping margin, we need not further address Indonesia's argument.  
5.66.   Indonesia also argues  that the Panel erred to the extent that its reasoning implies that, 
when confronted with transactions between closely affiliated parties, investigating authorit ies may 
replace the expenses actually incurred with the expenses that woul d have been incurred had the 
producing entity obtained the service from an independent provider.179 
5.67.   We recall that the amount of the allowance is not at issue in this dispute. For this reason, 
the Panel opined that the mark -up paid by  PT Musim  Mas to ICOF-S had to be viewed as a whole 
and not from the perspective of its constituent elements. The Panel considered it apparent from 
the record that the EU  authorities only disaggregated the mark -up into the components for SG&A 
and profit in order to quantify the  proper amount  of the adjustment, having already concluded that 
                                                
168 Panel Report, para.  7.88. 
169 Panel Report, para.  7.113.  
170 We recall that PT  Musim Mas' P&L reflected similar amounts for SG&A and profit for both PT  Musim 
Mas' domestic sales in Indonesia  and for PT  Musim Mas' export sales through ICOF -S that were destined for the 
European  Union. (See supra, para.  5.62.  ) Hence, we understand the EU  authorities to have considered that 
ICOF-S' P&L reflected the additional amounts that corresponded only to export sales.  
171 Panel Report, paras.  7.113 -7.114.  
172 Panel Report, fn  340 to para.  7.114 (quoting European  Union's second written submission to the 
Panel, para.  69). 
173 Panel Report, para.  7.114.  
174 Indonesia's appellant's submission, para.  2.42. 
175 Indonesia's appellant's submission, para.  3.168 (quoting Appellate Body Report, US – Hot-Rolled 
Steel, para.  160).  
176 Panel Report, para.  7.32. 
177 Indonesia's appellant's submission, paras.  3.168 -3.169. The European  Union contests Indonesia's 
assertion, stating that the EU  authorities did not impose a single anti -dumping duty for PT  Musim Mas and 
ICOF-S together. The European Union explained that, were ICOF -S to export to the European  Union 
Indonesian  fatty alcohols manufactured by another company, it would have faced the duty applicable to that 
manufacturer. (European  Union's appellee's submission, para.  154) 
178 Panel Report, fn  366 to para.  7.130.  
179 Indonesia's appellant's submission, para.  3.165 (referring to Panel Report, paras.  7.126 -7.130).  WT/DS442/AB/R  
 
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the adjustment for the mark -up was warranted.180 Accordingly, the Panel reasoned that the 
question before it was not whether it was permissible for the EU  authorities to deduct the SG&A 
and prof it of the related trader. Instead, the Panel considered the question to be whether, in the 
process of making an allowance for the mark -up, the EU  authorities were allowed to use the SG&A 
and profit as a basis for calculating the amount  of that allowance.181 The Panel's response to that 
question was as follows : 
When a transfer of funds occurs between two related entities, an investigating 
authority would be justified in examining whether the actual value of the expense 
differs from its reported value. Such an examination would, in our view, assist in 
identifying the proper amount of the adjustment to be made. Since there is evidence 
on the record that the mark -up was designed to cover the cost of the service rendered 
by ICOF -S, we consider that its SG&A and pro fit represent a reasonable basis for 
calculating the actual value of this service.  
For these reasons, we do not accept Indonesia's argument that the EU authorities 
were precluded from deducting an allowance that was calculated based on ICOF -S' 
P&L and what  they considered to be a reasonable profit margin for this particular 
sector.182 
5.68.   We understand Indonesia's appeal to challenge this part of the Panel's reasoning. We do not 
share Indonesia's position that these Panel statements represent a view that "the inv estigating 
authority may replace the expenses actually incurred ."183 To the contrary, the Panel acknowledged 
that the close relationship between two entities may result in the reported value of the expenses 
being different from the actual value. The Panel co nsidered that, in circumstances  where such  a 
relationship exists, investigating authorit ies would be justified in examining whether the actual 
value of the expense differs from its reported value. Having reviewed the facts before it, the Panel 
found that t he EU  authorities were justified in undertaking such an inquiry. The Panel also found, 
based on the evidence on the record, that ICOF -S' SG&A and profit represented a reasonable basis 
for the EU  authorities to calculate the actual value of the mark -up.184 We see no error in the 
Panel's reasoning or conclusion.  
5.69.   Based on the foregoing, we find that Indonesia has not demonstrated that the Panel erred in 
applying Article  2.4 of the Anti -Dumping  Agreement to the facts of this case. We turn now to 
Indonesia's claim  that the Panel acted inconsistently with Article  17.6(i) of the 
Anti-Dumping  Agreement and Article  11 of the DSU.  
5.1.6   Whether the Panel acted inconsistently with Article  17.6(i) of the 
Anti-Dumping  Agreement and Article  11 of the DSU  
5.70.   Indonesia submits that th e Panel's findings under Article  2.4 of the Anti -Dumping 
Agreement should also be reversed because the Panel failed to apply the standard of review 
applicable pursuant to Article  17.6(i) of the Anti -Dumping  Agreement and Article  11 of the DSU. 
Indonesia contends that the Panel repeatedly "stepped into the shoes"185 of the investigating 
authority and conducted its own analysis as if it were the investigating authority, including by 
engaging de novo with evidence and arguments from the investigation in an eff ort to inject 
meaning into the EU  authorities' reasoning.  
5.71.   Specifically, Indonesia argues that the Panel: (i)  improperly concluded that the 
EU authorities had complied with Article  2.4 before it even addres sed Indonesia's arguments; 
                                                
180 Panel Report, para.  7.128 (referring to Provisional Company -Specific Disclosure to PT Musim Mas, 
Annex 2 : Calculation of dumping margin (Panel Exhibit IDN -33 (BCI)), p.  4). 
181 Panel Report, para.  7.129.  
182 Panel Report, paras.  7.129 -7.130 (referring in fn 365 to PT Musim Mas response to Commission 
questionnaire AD563  (2010) (excerpt – response to question H -2.4) (Panel Exhibit IDN -22 (BCI)), pp.  43-44). 
(other fns omitted)  
183 Indonesia's appellant's submission, para.  3.165 (referring to Panel Report, paras.  7.126 -7.130).  
184 Panel Report, para.  7.129.  
185 Indonesia's appellant's submission, para. 4.3.  WT/DS442/AB/R  
 
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(ii) repeatedly engaged  in a de novo review of the record evidence; and (iii)  ignored or summarily 
dismissed key evidence and arguments by Indonesia. We address each of these arguments in turn.  
5.1.6.1   Whether the Panel improperly concluded that the EU  authorities had complied 
with Arti cle 2.4 before it addressed Indonesia's arguments  
5.72.   Indonesia alleges that , without having considered Indonesia's arguments and evidence,  the 
Panel concluded that the EU  authorities had not acted inconsistently with Article  2.4 of the 
Anti-Dumping  Agreement .186 Indonesia contends that, by the time the Panel turned to consider 
Indonesia's arguments and evidence, the Panel had already "made up and closed its mind ".187 
According to Indonesia, the Panel's approach cannot be reconciled with the most basic duties of 
panels, with due process, or with the rules on the allocation of the burden of proof.188 
Indonesia  adds that another way to look at the Panel's analysis is that the Panel made the case for 
the European Union , which is contrary to Article  11 of the DSU.189 
5.73.   The Eu ropean  Union disagrees with Indonesia's characterization of the Panel's analysis in 
section  7.3.5.1 of the Panel's Report, arguing that this section must be read in the context of the 
Panel's analysis of Indonesia's claim under Article  2.4 as a whole. The European  Union therefore 
requests us to reject Indonesia's arguments.190 
5.74.   To us, Indonesia's argument s seem to take issue with how the Panel structured its analysis. 
Indonesia's claims under Articles  2.4 and 2.3 of the Anti -Dumping  Agreement are addressed in 
section  7.3 of the Panel Report. The Panel characterized the "principal question" in that section as 
"whether the EU  authorities correctly characterized the mark -up paid by PT  Musim Mas to  
ICOF-S as a difference which affects price comparability under Art icle 2.4 of the 
Anti-Dumping  Agreement."191 
5.75.   Section  7.3 of the Panel Report is entitled "Indonesia's claims under Articles  2.3 and 2.4 of 
the Anti -Dumping Agreement", and contains six subsections. In the first four of these, the Panel 
set out an introduction , the relevant provisions of the covered agreements, the summaries of the 
arguments of the parties , and the summaries of the arguments of the third parties. In the last 
subsection, the Panel set out its conclusion on these claims by Indonesia. The fifth su bsection 
(section 7.3.5), entitled "Evaluation by the Panel", contains the main part of the Panel's analysis. 
It is broken down into four further subsections.192 As mentioned at paragraph  5.15.  above, 
following a brief overview of its understanding of Article  2.4193, the Panel began by reviewing 
whether the EU  authorities' explanations revealed a sufficient evidentiary basis for treating the 
mark-up in question as a difference affecting price comparability.194 Thereafter, the Panel 
specifically and separately addressed the three lines of argument raised by Indonesia.195 
5.76.   On appeal, Indonesia focuses on one segment of the Panel's analysis under Article  2.4, 
namely, the Panel's review of the EU  authorities' determination to make an adjustment to the 
export price for the mark -up.196 
5.77.   Article  11 of the DSU requires a panel to make an objective assessment of the matter 
before it. This obligation embraces all aspects o f a panel's examination of the "matter", both 
factual and legal.197 Article  12.7 of the DSU requires a panel to set out, in its report, "the findings 
of fact, the applicability of relevant provisions and the basic rationale behind any findings and 
recommenda tions that it makes" . Provided that it satisfies its duties under Articles  11 and 12.7, a 
                                                
186 Indonesia's appellant's submission, paras.  4.43-4.44 and 4.52 (referring to Panel Report, paras.  7.88 
and 7.95 -7.98).  
187 Indonesia's appellant's submission, para. 4.47. See paras.  4.45-4.48. 
188 Indonesia's appellant's submission, para.  4.42. 
189 Indonesia's a ppellant's submission, para.  4.49. 
190 European  Union's appellee's submission, paras.  231-263. 
191 Panel Report, para.  7.33. 
192 The Panel outlined its order of analysis at paragraph  7.33 of its Report.  
193 Panel Report, paras.  7.55-7.61. 
194 Panel Report, paras.  7.63-7.98. 
195 Supra , para.  5.29.  . 
196 Panel Report, subsection  7.3.5.1, paras.  7.63-7.98. 
197 Appellate Body Report, US – Hot-Rolled Steel , para.  54. WT/DS442/AB/R  
 
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WTO panel enjoys wide discretion in deciding how to structure and elaborate the reasons for its 
findings and conclusions.  
5.78.   In this case, although Indonesia's challenge  focuses on one segment of the Panel's analysis, 
this segment must be considered in its proper context: as part of the Panel's overall analysis of 
Indonesia's claim under Article  2.4. Indonesia highlights that the Panel did not address any of the 
parties' arguments between paragraphs  7.54 and 7.98 of its Report.198 However, this segment of 
the Panel Report is immediately preceded by the Panel's overview of the parties' arguments. 
Second, the Panel identified the claim by Indonesia under Article  2.4 as the pri ncipal inquiry 
informing the Panel's subsequent elaboration of its understanding of Article  2.4.199 In articulating 
its understanding of Article  2.4, the Panel explicitly recogni zed that, although the "mark -up" at 
issue in the present case was not included i n the list in the third sentence of Article  2.4 of factors 
that could potentially affect price comparability, that list is not exhaustive.200 Third, in the segment 
at issue, the Panel relied upon evidence submitted by Indonesia for its analysis.201 Thus, while  the 
Panel, in subsection  7.3.5.1 of its Report, did not expressly engage with Indonesia's specific 
allegation that PT  Musim Mas and ICOF -S formed a single economic entity, the Panel's references 
in its footnotes show that it was well aware of Indonesia's arguments and that the Panel had opted 
to address these arguments in later sections of its analysis. Fourth, in the sections of the Panel's 
analysis that follow the challenged segment, the Panel specifically and separately addressed each 
line of argument r aised by Indonesia challenging the EU  authorities' treatment of the mark -up. 
5.79.   Accordingly, the Panel did not act inconsistently with Article  11 of the DSU merely by 
situating its review of the EU  authorities' treatment of the mark -up where it did in its Rep ort. 
5.80.   We also take note of Indonesia's assertion that the Panel concluded that the European  Union 
had not acted inconsistently with Article  2.4 of the Anti -Dumping  Agreement before even 
considering Indonesia's arguments and evidence.202 In this regard, we und erstand Indonesia to be 
challenging the following statements that the Panel made at the end of section  7.3.5.1 of its 
Report:  
On the basis of the foregoing, we consider that the EU authorities did not act 
inconsistently with Article  2.4 of the Anti -Dumping  Agreement by considering whether 
"ICOF -S had functions similar to an agent working on a commission basis" ...  
In light of the foregoing, we conclude that the EU  authorities had a sufficient 
evidentiary basis – encompassing both of the factual findings and  their attendant 
evidence as discussed in the foregoing sections – for establishing that the mark -up 
was a factor that impacts the prices of the product and that was linked exclusively to 
the export side, therefore constituting a difference which affects p rice comparability 
under Article  2.4.203 
5.81.   In US – Shrimp II (Viet Nam)  and EU – Biodiesel (Argentina) , the Appellate Body addressed 
claims on appeal that the respective panels, in assessing the meaning of municipal law, had 
arrived at their conclusion on the basis of only one of several relevant elements. In both disputes, 
the Appellate Body noted that sp ecific panel statements, "read in isolation, might unfortunately 
give the impression that the [p]anel was drawing a conclusion" on the basis of only one of the 
relevant elements.204 However, in each case, having reviewed the panel's reasoning in its entirety , 
the Appellate Body concluded that the panel had not erred in making intermediate findings, had 
                                                
198 Indonesia's appellant's submission, para.  4.37. 
199 Panel Report, para.  7.54. 
200 Panel Report, para.  7.56 (quoting Appellate Body Report, US – Hot-Rolled Steel , para.  177).  
201 The exhibits referred to throughout this section of the Panel's analysis were submitted by Indonesia. 
Additionally, the Panel made explicit references to certain of Indonesia's arguments. (See e.g. Panel Report, 
para. 7.83 and fn  272 thereto, para.  7.91 a nd fn 285 thereto, and para.  7.95)  
202 Indonesia's appellant's submission, paras.  4.7, 4.37, and 4.41.  
203 Panel Report, paras.  7.96-7.97. 
204 Appellate Body Report, EU – Biodiesel (Argentina) , para.  6.205 (quoting Appellate Body Report, US – 
Shrimp II (Viet Nam ), para.  4.36).  WT/DS442/AB/R  
 
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not failed to assess all the relevant elements, and had therefore complied with its duty under 
Article  11 of the DSU.205 
5.82.   Similarly, in the present dispute, the u se of the words "we conclude" at paragraph  7.97 of 
the Panel Report may seem premature. Although the Panel used those words in an early segment 
of its analysis, having reviewed the Panel's reasoning in its entirety, we consider the finding in that 
paragrap h to be an intermediate finding, and not its final conclusion with respect to Indonesia's 
claim under Article  2.4 of the Anti -Dumping Agreement . Indeed, the Panel proceeded to engage, at 
some length, with Indonesia's specific arguments and evidence before arriving at its overall 
conclusion with respect to Indonesia's claims under Articles  2.4 and 2.3  of the Anti -Dumping 
Agreement .206 Accordingly, we do not consider that the structure of the Panel's analysis in its 
Report, nor its use of the words "we conclude " in an early segment of its analysis, amount to a 
violation of Article  11 of the DSU. Nor do we accept Indonesia's assertion that, in its analysis of 
the EU  authorities' determination, the Panel acted inconsistently with Article  11 of the DSU by 
making th e case for the defendant.  
5.1.6.2   Whether the Panel engaged in a de novo  review of the record evidence  
5.83.   Indonesia submits that the Panel failed to apply the correct standard of review, in multiple 
instances, by engaging in a de novo review of record evidence, inclu ding: (i)  the email in 
Verification Exhibit PTMM -18207; (ii) evidence concerning ownership links between PT Musim Mas 
and ICOF -S208; (iii) evidence concerning the existence of a sales and marketing department for 
fatty alcohols in PT Musim Mas209; and (iv) an Ex cel spreadsheet submitted by PT  Musim Mas as 
part of its Questionnaire response.210 
5.84.   Pursuant to Article  11 of the DSU , in assessing whether a competent authority has complied 
with its obligations in making its determination, a panel is not permitted to conduct a de novo 
review of the facts of the case or substitute its judgement for that of the authority.211 Rather, the 
panel must examine "whether, in the light of the evidence on the record, the conclusions reached 
by the investigating authority are reasoned and adequate".212 At the same time, the panel cannot 
simply defer to the conclusions of the domestic authorit ies. Inste ad, a panel's examination of those 
conclusions must be critical and searching, and be based on the information contained on the 
record and the explanations given by the authorit ies in their published report.213 A panel must 
ascertain whether the investigatin g authorit ies have evaluated all of the relevant evidence in an 
objective and unbiased manner, including by taking sufficient account of conflicting evidence and 
responding to competing plausible explanations of that evidence.214 
5.85.   For disputes under the Anti -Dumping  Agreement, Article  17.6(i) provides:  
[I]n its assessment of the facts of the matter, the panel shall determine whether the 
authorities' establishment of the facts was proper and whether their evaluation of 
those facts was unbiased and objective. If  the establishment of the facts was proper 
and the evaluation was unbiased and objective, even though the panel might have 
reached a different conclusion, the evaluation shall not be overturned [.] 
5.86.   Under Article  17.6(i) , the task of a panel is to review the investigating authorities' 
"establishment " and "evaluation " of the facts.215 A panel must not "engage in a new and 
                                                
205 Appellate Body Reports, EU – Biodiesel (Argentina) , para.  6.209; and US – Shrimp II (Viet Nam) , 
paras.  4.50-4.51. 
206 Panel Report, paras.  7.160 -7.161.  
207 Indonesia's appellant's submission, paras.  4.56-4.125.  
208 Indonesia's appellant's submi ssion, paras.  4.126 -4.152.  
209 Indonesia's appellant's submission, paras.  4.153 -4.170.  
210 Indonesia's appellant's submission, paras.  4.171 -4.192.  
211 Appellate  Body Reports, US – Steel Safeguards , para.  299; Argentina – Footwear (EC) , para.  121; 
US – Anti-Dumping and Countervailing Duties (China) , para.  379; and US – Cotton Yarn , para.  74. 
212 Appellate  Body Report, US – Softwood Lumber VI (Article  21.5 – Canada) , para.  93. 
213 Appellate  Body Report, US – Softwood Lumber VI (Article  21.5 – Canada) , para.  93. 
214 Appellate  Body Reports, US – Softwood Lumber VI (Article  21.5 – Canada) , para.  97; and US – 
Anti-Dumping and Countervailing Duties (China) , para.  516. 
215 Appellate Body Report, US – Hot-Rolled Steel , para.  55. WT/DS442/AB/R  
 
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independent fact -finding exercise".216 Instead, a panel must assess whether the establishment of 
the facts by the investig ating authorities was "proper" and whether the evaluation of those facts 
by those authorities was "unbiased and objective".217 Furthermore, while a panel's review of the 
investigating authorit ies' determination is limited to the information on the record of the 
investigation , neither Article  17.6(i) of the Anti -Dumping  Agreement nor Article  11 of the DSU bar 
a panel from examining evidence that was on the investigation record but not expressly reflected 
in the investigating authorit ies' determination.  
5.87.   If a pa nel conducts its examination within the parameters described above, "it is generally 
within the discretion of the [p]anel to decide which evidence it chooses to utilize in making 
findings"218, and the mere fact that a panel did not explicitly refer to each a nd every piece of 
evidence in its reasoning is insufficient to establish that the panel applied an improper standard of 
review.219 Moreover, not every error committed by a panel amounts to a violation of Article  11 of 
the DSU, but only those that are so mate rial that, taken together or singly, they undermine the 
objectivity of the panel's assessment of the matter before it.220 
5.88.   Turning to the present case, we observe that, before the Panel, Indonesia relied upon 
Verification Exhibit PTMM -18221 and the record evide nce concerning the existence of a sales and 
marketing department for PT  Musim Mas in support of its assertion that ICOF -S was involved in 
PT Musim Mas' domestic sales in Indonesia.222 Indonesia also submitted evidence of the close 
corporate links between PT  Musim Mas and ICOF -S to demonstrate that PT  Musim Mas and ICOF -S 
formed a "single economic entity".223 On appeal, Indonesia contends that the Panel engaged in a 
de novo review of these pieces of evidence and substituted the judgment of the EU authorities  with 
its own . 
5.89.   For instance, Indonesia argued before the Panel that the EU  authorities' failure to analyse 
Verification Exhibit PTMM -18 meant that they failed to analyse a crucial part of the evidentiary 
backdrop.224 On appeal, Indonesia argues that the Panel conducted a de novo review of 
Verification Exhibit PTMM -18, thereby improperly supplementing the work of the EU  authorities.225 
5.90.   Verification Exhibit PTMM -18 is an email dated 22  April 2010 from a representative of the 
ICOF Group to a representative of PT  Musim Mas. The email forwards two sales contracts for 
domestic sales in Indonesia, both printed on the letterhead of PT  Musim Mas. According to 
                                                
216 Appellate Body Reports, EC – Bed Linen (Artic le 21.5 – India) , para.  169; Mexico – Corn Syrup 
(Article  21.5 – US), para.  84. See also Appellate Body Reports, US – Lamb , para.  106; and US – Cotton Yarn , 
para. 74. 
217 Appellate Body Report, US – Hot-Rolled Steel , para.  56. 
218 Appellate Body Reports, China  – Rare Earths , para.  5.178; EC – Hormones , para.  135. 
219 Appellate  Body Reports, EC – Fasteners (China) , paras.  441-442; and Brazil – Retreaded Tyres , 
para. 202. 
220 Appellate Body Reports, EC – Fasteners (China) (Article  21.5 – China) , para.  5.61;  China – Rare 
Earths , para.  5.179; EC – Fasteners (China) , paras.  442 and 499; and EC and certain member States – Large 
Civil Aircraft , para.  1318. 
221 Verification Exhibit  PTMM -18 (Panel Exhibit IDN -47 (BCI) . 
222 Indonesia's appellant's submission, para s. 4.153 and 4.168  (referring to PT Musim Mas response to 
Commission questionnaire AD563  (2010), Attachment A -3.3.1: Table G – PT Musim Mas Business Organization 
Structure (Panel Exhibit EU -5 (BCI)); PT Musim Mas response to Commission questionnaire AD563  (2010), 
Attachment  A-3.3.2, Table G – Organization Chart – Fatty Alcohols Division (Panel Exhibit EU -6 (BCI)); and 
Excel file "PTMM definitive disclosure.xls" (Panel Exhibit EU -12 (BCI))).  
223 Indonesia's appellant's submission, paras.  4.126 -4.127 (referring to PT Musim Mas response to 
Commission questionnaire AD563  (2010), Annex  A-3.4: Corporate structure of the Musim Mas Group (Panel 
Exhibit IDN -18 (BCI)); PT Musim Mas response to Commission questionnaire AD563  (2010), Annex A: List of 
PT Musim Mas' shareholders (Panel Exhibit IDN -19 (BCI)); PT Musim Mas, "Impact of the Interpipe judgment 
on the fatty alcohol anti -dumping investigation ( AD563 ): PTMM situation", Po werPoint presentation at the 
DG Trade hearing on 16  August 2012, slides  5 and 6 (Panel Exhibit IDN -26 (BCI)),  slides  5 and 6; and 
PT Musim Mas' Comments on the Preliminary Determination, 10  June 2011 (Panel Exhibit IDN -34 (BCI))).  
224 Indonesia's appellant's submission, para.  4.69 (referring to Verification Exhibit PTMM -18 (Panel 
Exhibit IDN -47 (BCI)).  
225 Indonesia' s appellant's submission, paras.  4.73-4.94 (referring to Panel Report, para.  7.85).  WT/DS442/AB/R  
 
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Indonesia, PT  Musim Mas submitted this document to the EU  authorities to demonstrate that 
ICOF-S was involved in PT Musim Mas' domestic sales in Indonesia.226 
5.91.   In its appellant's submission, Indonesia challenges the very examination by the Panel of 
Verification Exhibit PTMM -18227, and contends that, in this examin ation, the Panel should have 
limited itself to assessing whether the EU  authorities' explanation regarding the role of ICOF -S in 
domestic sales was reasoned and adequate. Instead, according to Indonesia, the Panel went 
further and substituted the EU  authorities ' judg ement with its own . 
5.92.   We observe that the EU  authorities' Final Determination does not contain an explicit 
reference to Verification Exhibit PTMM -18. We recall that, while a panel's review of an investigating 
authority's determination is limited to the information  on the record of the investigation228, neither 
Article  17.6(i) of the Anti -Dumping  Agreement nor Article  11 of the DSU bar a panel from 
examining evidence that was on the investigation record but not expressly reflected in the 
investigating authority's dete rmination. Hence, we do not consider it improper for the Panel to 
have examined Verification Exhibit PTMM -18 as it was on the record of the EU  authorities' 
anti-dumping investigation.  
5.93.   The Panel stated, in relevant part:  
We understand the only piece of evid ence indicating any involvement by ICOF -S in 
PT Musim Mas' domestic sales was the document submitted to the EU authorities as 
"Attachment  18" pertaining to an email. In our view, it was not unreasonable for the 
EU authorities to ascribe limited probative v alue to this document. The document does 
not reveal the nature, extent, or scope of ICOF -S' alleged involvement in domestic 
sales generally. … We cannot see how this demonstrates that ICOF -S undertakes all 
sales, marketing, and negotiating work on behalf o f PT Musim Mas for domestic sales, 
nor how this demonstrates that PT Musim Mas has no active sales department.229 
5.94.   We highlight the Panel's statement above that, "[i]n our view, it was not unreasonable for 
the EU  authorities to ascribe limited probative value  to this document ." Read in isolation, this 
statement could imply that the EU  authorities indicated in their determination that they attached 
"limited probative value to" Verification Exhibit PTMM -18. However, reading the paragraph in its 
entirety, we unde rstand the Panel's reasoning to be a rejection of the assertion by Indonesia that 
the evidence on the record of the EU  authorities clearly established that ICOF -S was the internal 
sales department of PT Musim Mas . We do not understand the Panel to have set out an 
explanation of how the EU  authorities  assessed  the probative value of Verification Exhibit 
PTMM -18. Importantly, the Panel  did not , in its reasoning, provide a "different conclusion"230 from 
that of the EU  authorities with respect to the alleged i nvolvement by ICOF -S in PT  Musim Mas' 
domestic sales.  
5.95.   For these reasons, we find that Indonesia has not demonstrated that the Panel conducted a 
de novo review of Verification Exhibit PTMM -18, or that the Panel substituted the EU  authorities' 
judgement with  its own.  
5.96.   Indonesia makes similar arguments in respect of the record  evidence regarding the close 
corporate links between the two entities in support of the argument that PT  Musim Mas and 
ICOF-S formed a "single economic entity".231 Indonesia contends that, while the Panel engaged 
with this evidence, the EU  authorities did not.  
                                                
226 Indonesia's appellant's submission, para.  4.62; Indonesia's opening statement at the first Panel 
meeting, para.  15; Panel Report, para.  7.42. 
227 Indonesia's appellant's su bmission, paras.  4.73-4.94. 
228 Appellate Body Report, Thailand – H-Beams , para.  118. 
229 Panel Report, para.  7.85. (fn omitted)  
230 Article  17.6(i) of the Anti -Dumping  Agreement.  
231 Indonesia's appellant's submission, paras.  4.126 -4.127 (referring to PT Musim  Mas response to 
Commission questionnaire AD563  (2010), Annex  A-3.4: Corporate structure of the Musim Mas Group (Panel 
Exhibit IDN -18 (BCI)); PT  Musim Mas response to Commission questionnaire AD563  (2010), Annex A: List of 
PT Musim Mas' shareholders (Panel  Exhibit IDN -19 (BCI)); PT Musim Mas, "Impact of the Interpipe judgment 
on the fatty alcohol anti -dumping investigation ( AD563 ): PTMM situation", PowerPoint presentation at the 
 WT/DS442/AB/R  
 
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5.97.   Indonesia is correct in stating that the EU  authorities made no explicit reference to the 
document  illustrating the c orporate structure of the Musim Mas Group232, or to the l ist of PT  Musim 
Mas' shareholders .233 However , we note that the EU  authorities responded to the information 
concerning ownership and control of PT  Musim Mas and ICOF -S contained in the documents 
submitted to the Panel as Exhibits IDN -26 and IDN -34.234 We agree with the Pa nel that, in their 
Final Determination, "the EU  authorities responded to PT Musim Mas' arguments in this regard and 
provided further explanation of why they considered that the adjustment was warranted."235 
Accordingly, it is not accurate for Indonesia to as sert that the EU  authorities "never responded to 
these arguments".236 
5.98.   Indonesia also argues that the Panel conducted a de novo review of the document 
illustrating the corporate structure of the Musim Mas Group237 and the list of PT  Musim Mas' 
shareholders.238 According to Indonesia, the Panel made an " arguendo " assumption that evidence 
of commonality in ownership, operational management , and control was "critical", and found that 
the evidence before the EU  authorities did not demonstrate the precise nature of the relationship 
between PT  Musim Mas and ICOF -S as alleged by Indonesia.239 The Panel stated:  
In Indonesia's own framework, the natu re and extent of overlap in this regard appear 
to be important to identifying whether a payment can be said to affect price 
comparability. Therefore, even assuming evidence of commonality in ownership, 
operational management and control is "critical", the evidence before the 
EU authorities did not, in our view, demonstrate the precise nature of the relationship 
between PT Musim Mas and ICOF -S as alleged by Indonesia.240 
5.99.   We do not agree with Indonesia's characterization of the se Panel statements as amounting 
to a de novo review of the record evidence.241 The Panel was responding directly to allegations by 
Indonesia regarding the significance of the record evidence concerning ownership and control that 
the EU  authorities allegedly ignored, or on which they placed insufficient weight, or from which 
they drew incorrect inferences. We do not read the Panel's statements as an attempt to substitute 
its judgement for that of the EU  authorities. Instead, the Panel was assessing whether, in light of 
the evidence on the rec ord, the conclusions reached by th ose authorit ies were reasoned and 
adequate, given the facts and circumstances of this case.242 
5.100.   Regarding the existence of a sales and marketing department for fatty alcohols in 
PT Musim Mas, Indonesia identifies two document s showing PT  Musim Mas' corporate structure.243 
                                                                                                                                                  
DG Trade hearing on 16  August 2012 (Panel Exhibit IDN -26 (BCI)) , slides  5 and 6; and PT  Musim Mas' 
Comments on the Preliminary Determination, 10  June 2011 (Panel Exhibit IDN -34 (BCI))).  
232 PT Musim Mas response to Commission questionnaire AD563  (2010), Annex  A-3.4: Corporate 
structure of the Musim Mas Group (Panel Exhibit IDN -18 (BCI )). 
233 PT Musim Mas response to Commission questionnaire AD563  (2010), Annex A: List of PT Musim Mas' 
shareholders (Panel Exhibit IDN -19 (BCI)).  
234 PT Musim Mas, "Impact of the Interpipe judgment on the fatty alcohol anti -dumping investigation 
(AD563 ): PTMM situation", PowerPoint presentation at the DG Trade hearing on 16  August 2012 (Panel 
Exhibit  IDN-26 (BCI)); PT  Musim Mas' Comments on the Preliminary Determination, 10  June 2011 (Panel 
Exhibit IDN -34 (BCI)). The EU  authorities did not expressly reference t hese two documents by name. However, 
the EU  authorities responded directly to the arguments raised by PT  Musim Mas in Panel Exhibits IDN -34 and 
IDN-26. (See General Disclosure Document (Panel Exhibit IDN -39), paras.  31-38; and Revised Determination 
(Panel Exhibit IDN -5), recitals  19-23) 
235 Panel Report, para.  7.68 (referring to Final Determination (Panel Exhibit IDN -4), recitals  31-33). 
236 Indonesia's appellant's submission, para.  4.128.  
237 PT Musim Mas response to Commission questionnaire AD563  (2010), Annex  A-3.4: Corporate 
structure of the Musim Mas Group (Panel Exhibit IDN -18 (BCI)).  
238 PT Musim Mas response to Commission questionnaire AD563  (2010), Annex A: List of PT Musim Mas' 
shareholders (Panel Exhibit IDN -19 (BCI)).  
239 Indonesia's appellant's submission, paras.  4.132 -4.133 (quoting Panel Report, para.  7.109).  
240 Panel Report, para.  7.109. (fns omitted)  
241 PT Musim Mas response to Commission questionnaire AD563  (2010), Annex  A-3.4: Corporate 
structure of the Musim Mas Grou p (Panel Exhibits IDN -18 (BCI)); PT Musim Mas response to Commission 
questionnaire AD563  (2010), Annex A: List of PT Musim Mas' shareholders (IDN -19 (BCI)).  
242 See Appellate  Body Report, US – Softwood Lumber VI (Article  21.5 – Canada) , para.  93. 
243 Indonesia 's appellant's submission, para.  4.153 (referring to PT Musim Mas response to Commission 
questionnaire AD563  (2010), Attachment A -3.3.1: Table G – PT Musim Mas Business Organization Structure 
 WT/DS442/AB/R  
 
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According to Indonesia, while the EU  authorities never analysed these two documents, the Panel 
not only examined them but also drew its own conclusions about the probative value of th ese 
documents.244 Similarly, before the Panel, Indonesia relied upon the spreadsheet that PT  Musim 
Mas had submitted as part of its questionnaire response in support of its argument that the 
deduction of ICOF -S' SG&A and profits led to an asymmetry between the prices of domestic and 
export sales. On appeal, Indonesia argues that the Panel erred in reviewing this document because 
this spreadsheet was never addressed by the EU  authorities in the manner that the Panel did.245 
These arguments are akin to those made by Indonesia concerning Ve rification Exhibit  PTMM -18. 
Thus, for the reasons discussed at paragraphs  5.86.   -5.87.   and 5.92.  -5.94.    above, we find 
that Indonesia has not demonstrated that the Panel conducted a de novo review of the r ecord 
evidence in question, or that the Panel substituted the EU  authorities' judg ement with its own.  
5.1.6.3   Whether the Panel ignored or summarily dismissed key evidence and arguments 
by Indonesia  
5.101.   Indonesia asserts that the Panel erred by ignoring or summarily d ismissing key arguments 
and evidence submitted by Indonesia. Indonesia stresses that it is not requesting us to agree with 
Indonesia's view of what this evidence demonstrates as a matter of fact. Rather, Indonesia asks us 
to find that certain evidence and arguments were relevant to the Panel's analysis of the 
EU authorities' determination and supported Indonesia's case, and that, therefore, the Panel 
should not have ignored or summarily dismissed them.246 In particular, Indonesia argues that the 
Panel summari ly dismissed or ignored Indonesia's arguments and evidence relating to the Sale and 
Purchase Agreement between PT  Musim Mas and ICOF -S.247 
5.102.   The European  Union does not agree. In its view, the Panel properly addressed and rejected 
these arguments.248 
5.103.   We observe that the Panel addressed Indonesia's argument, that the Sale and Purchase 
Agreement should not have been relied upon by the EU  authorities to find that the role of ICOF -S 
was one of an agent working on a commission basis, as follows:  
In our view, it was no t unreasonable for the EU  authorities to have relied on the terms 
of the Sale and Purchase Agreement  in their assessment of "whether the functions of 
a trader are not those of an internal sales department but comparable to those of an 
agent working on a commission basis". … These aspects [of the Sale and Purchase 
Agreement] suggest that ICOF -S has a funct ional capacity to provide certain services 
as an international trader that is lacking in PT  Musim Mas. Further, the Sale and 
Purchase Agreement  stipulates that the services provided by ICOF -S – namely, the 
assumption of certain "functions, obligations, and  risks" – are to be remunerated on 
individual sales through the "ICOF Margin", i.e.  the mark -up. Together, these aspects 
plausibly suggest that ICOF -S performs "functions … similar to those of an agent 
working on a commission basis". Other aspects of the S ale and Purchase Agreement  
also militate against the inference that ICOF -S operates as the "internal sales 
department" of PT  Musim Mas. For instance, whereas PT  Musim Mas engages in 
domestic sales, the Sale and Purchase Agreement  explicitly refers only to export sales 
and stipulates that it "constitutes the entire agreement and understanding between 
the Parties in respect of its subject matter". Moreover, the provision that "[n]othing in 
this Agreement shall create any partnership, joint venture or relation ship of principal 
                                                                                                                                                  
(Panel Exhibit EU -5 (BCI)); and PT Musim Mas response to Commiss ion questionnaire AD563  (2010), 
Attachment A -3.3.2, Table G – Organization Chart – Fatty Alcohols Division (Panel Exhibit EU -6 (BCI)).  
244 Indonesia's appellant's submission, paras.  4.155 -4.157 ( quoting  Panel Report, para.  7.84 and fn  277 
thereto).  
245 Indones ia's appellant's submission, paras. 4.171 -4.175 (referring to Panel Report, 
paras.  7.119 -7.120; and Excel file "PTMM definitive disclosure.xls" (Panel Exhibit EU -12 (BCI))).  
246 Indonesia's appellant's submission, paras.  4.221 -4.290.  
247 Sale and Purchase Agre ement between PT Musim Mas and Inter  Continental Oils & Fats Pte Ltd 
(ICOF -S) (1 January  2009) (Panel Exhibit  IDN-24 (BCI)).  
248 European  Union's appellee's submission, paras.  303-312. WT/DS442/AB/R  
 
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and agent between the Parties" contradicts the characterization of ICOF -S as 
PT Musim Mas' closely -intertwined internal sales department.249 
5.104.   Moreover, in response to Indonesia's comments at the interim review stage, the Panel 
clarified why it considered the evidence submitted by Indonesia to be irrelevant to its consideration 
of the content and significance of the Sale and Purchase Agreement.250 In particular, the Panel 
explained that Panel Exhibits IDN -52 to IDN-54, which contain general docu mentation on 
inter-company agreements , complement, and do not contradict, the provisions of the Sale and 
Purchase Agreement. In addition, the Panel noted that Panel Exhibits IDN -53 and IDN -54 contain a 
disclaimer indicating the generality of these document s and clarifying that their application to 
specific situations would depend on the particular circumstances involved.251 
5.105.   The Panel also highlighted that its interim report had addressed in detail why the Panel had 
found that the existence of transfer prices does not exclude the characterization of a payment as 
an expense rather than as a mere allocation of funds between two related entities.252 
5.106.   We consider that the Panel addressed the main thrust of Indonesia's arguments and even 
went further to explain why it had found certain evidence to be irrelevant. The fact that the Panel 
did not explicitly refer to each and every piece of evidence submitted by Indonesia in its reasoning 
is, in itself, insufficient to establish that the Panel applied an incorrect standard of review.253 
5.107.   In addition, we observe that the arguments that Indonesia made before the Panel largely 
replicated the arguments that PT  Musim Mas had made to the EU  authorities, and which the 
EU authorities rejected. The Panel expressly addressed and rejected  Indonesia's arguments, 
finding that it was not unreasonable for the EU  authorities to have relied upon the terms of the 
Sale and Purchase Agreement  in their assessment of the role of ICOF -S.254 We recall that, in 
reviewing the determinations of competent au thorities, panels must not "engage in a new and 
independent fact -finding exercise".255 Yet, some of Indonesia's assertions on appeal seem to 
suggest that the Panel breached its duty under Article  11 of the DSU and Article  17.6(i) of the 
Anti-Dumping  Agreemen t because it did not consider Indonesia's evidence and arguments 
independently of the determination by the EU  authorities.256 We disagree. In our view, the Panel 
conducted a critical and searching examination of the EU  authorities' conclusions, including by 
ascertaining whether the EU  authorities had evaluated all of the relevant evidence in an objective 
and unbiased manner, taking account of the alleged ly conflicting evidence, and responding to that 
evidence.257 The Panel's review f ell within the scope of its discretion as the trier of facts.258 
Accordingly, the Panel did not improperly ignore or summarily dismiss Indonesia's evidence and 
arguments.  
5.108.   For all of the reasons discussed above, we find that Indonesia has not demonstrated that 
the Panel acted inconsistently with Article  11 of the DSU or Article  17.6(i) of the 
Anti-Dumping  Agreement in addressing Indonesia's claim under Article  2.4. 
                                                
249 Panel Report, para.  7.95. (fns omitted)  
250 Panel Report, paras.  6.30-6.47. 
251 Panel Report, para.  6.35 (referring to LCN  Legal Limited, Intercompany Agreement Template for 
Term Loan Agreement (2013), available at http:/ /lcnlegal.com/template -intercompany -agreement -for-transfer -
pricing -term-loan-agreement / (Panel Exhibit IDN -53): and LCN  Legal Limited, Intercompany Agreement 
Template for Limited Risk Distribution Agreement (2014), available at http://lcnlegal.com/template -
intercompany -agreement -for-transfer -pricing -limited -risk-distribution -agreement / (Panel Exhibit IDN -54)). 
252 Panel Report, para.  6.36. 
253 Appellate  Body Reports, EC – Fasteners (China) , paras.  441-442; and Brazil – Retreaded Tyres , 
para. 202. 
254 Panel Report, para.  7.95. 
255 Appellate Body Reports, EC – Bed Linen (Article  21.5 – India) , para.  169; Mexico – Corn Syrup 
(Article  21.5 – US), para.  84. 
256 For example, at paragraphs  4.240 -4.247 of its appellant's submission, Indonesia discusses the 
significance of specific pieces of evidence, devoid of any connection to the EU  authorities' explanation or 
determination.  
257 Appellate  Body Reports, US – Softwood Lumber VI (Article  21.5 – Canada) , para.  97; 
US - Anti-Dumping and Countervailing Duties (China) , para.  516. 
258 See Appellate Body Report, EC – Bed Linen (Article  21.5 – India) , para.  170. WT/DS442/AB/R  
 
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5.1.7   Conclusion  
5.109.   The focus of Article  2.4 of the Anti -Dumping  Agreement is not merely on a comparison 
between the normal value and the export price, but predominantly on the means to ensure the 
fairness of that comparison. T o this end, investigating authorities are required to make due 
allowance  for differences affe cting price comparability. There are no differences affecting price 
comparability that are precluded, as such, from being the object of an allowance. Instead, the 
need to make due allowances must be assessed in light of the specific circumstances of each c ase. 
The Panel's articulation  of the legal standard under Article  2.4 of the Anti -Dumping Agreement is 
consonant with our understanding of this provision. The existence of a close relationship between 
transacting companies would be pertinent to the extent that it affects the relevant transactions in 
such a way as to affect the comparability of the export price and the normal value.  Thus, the Panel 
did not err in rejecting Indonesia's argument that the existence of what Indonesia denotes as a 
"single economi c entity" is dispositive of whether a given mark -up qualifies as a difference which 
affects price comparability under Article  2.4 of the Anti -Dumping Agreement .  
5.110.   Accordingly , we find that Indonesia has not demonstrated that the Panel erred in its 
interpret ation of Article  2.4 of the Anti -Dumping  Agreement.  
5.111.   Having so found, we recall that we  are not ruling that the nature and degree of affiliation 
between related companies is irrelevant to the issue of whether any allowances should be made in 
order to ensure  a fair comparison between the normal value and the export price. Nor do we  rule, 
in the abstract,  on the circumstances  in which an inquiry into the nature of the relationship 
between transacting entities will suffice or be determinative of the issue of whether allowances 
should be made pursuant to Article  2.4. 
5.112.   With respect to Indonesia's claim that the Panel erred in its application of Article  2.4 of the 
Anti-Dumping  Agreement to the facts of this case, we consider that the Panel's review of the 
EU autho rities' evaluation was properly focused on whether that evaluation was consistent with 
Article  2.4. The Panel did not err in finding  that the EU  authorities had a sufficient evidentiary basis 
for establishing that the mark -up paid by PT  Musim Mas to ICOF -S in connection with export sales 
to the European  Union was a difference affecting price comparability under Article  2.4. Moreover, 
contrary to Indonesia's argument, the Panel's reasoning  does not imply that, when confronted with 
transactions between closel y affiliated parties, investigating authorit ies may replace the expenses 
actually incurred with the expenses that would have been incurred had the producing entity 
obtained the service from an independent provider.  
5.113.   Accordingly , we find that Indonesia has n ot demonstrated that the Panel erred in its 
application of Article  2.4 of the Anti -Dumping  Agreement to the facts of this case.  
5.114.   We also find that Indonesia has not demonstrated that the Panel acted inconsistently with 
Article  17.6(i) of the Anti -Dumping  Agreement or Article  11 of the DSU in its analysis of 
Indonesia's claim under Article  2.4 of the Anti -Dumping  Agreement.  
5.115.   Consequently, we uphold  the Panel's finding, in paragraphs  7.160 and 8.1.b.i of its Report, 
that Indonesia has not demonstrate d that the EU authorities acted inconsistently with Article  2.4 of 
the Anti -Dumping Agreemen t by treating the mark -up paid by PT  Musim Mas to ICOF -S as a 
difference affecting price comparability, and therefore making a downward adjustment to the 
export price.  
The European Union's claim s of error regarding the  Panel's findings under 5.2  
Article  6.7 of the Anti -Dumping Agreement  
5.116.   The European Union requests us to reverse the Panel's finding that the EU authorities 
acted inconsistently with Article 6.7 of the Anti -Dumping Agreement because they failed to make 
available or disclose the results of the on -the-spot investigations they had conducted on the 
premises of PT Musim Mas and its related companies.259 In particular, the European Union alleges 
                                                
259 European Union's other appe llant's submission, para. 163 (referring to Panel Report, para.  8.1.d). WT/DS442/AB/R  
 
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that the Panel erred by inter preting Article 6.7 as imposing an obligation to provide a document 
setting out a complete description of the verification process.260 
On 5 November 2010, the EU  authorities sent a letter to PT Musim Mas announcing that 5.117.   
they would conduct on -the-spot investi gations at the premises of PT Musim Mas in Indonesia  and 
at certain of its related companies, including ICOF -S in Singapore.261 These visits occurred in the 
course of November 2010.262 The EU authorities informed PT Musim Mas of their provisional 
findings on 1 1 May 2011263, and of their definitive findings on 2 6 August 2011.264 On 8 November 
2011, the European Union issued the Final Determination imposing a definitive anti -dumping duty 
on imports of fatty alcohols from, inter alia , Indonesia.265 The duty for PT  Musim  Mas was 
confirmed by the Revised Determination of 11  December 2012.266 
We begin with a brief overview of the relevant Panel findings before turning to our 5.118.   
interpretation of Article 6.7 of the Anti -Dumping Agreement. Thereafter, we consider whether the 
Panel  erred, either in its interpretation or application of Article 6.7, in reaching the above finding.  
5.2.1   The Panel's findings  
5.119.   Before the Panel, Indonesia argued that the disclosure to the investigated Indonesian 
producers did not meet the requirements of Article  6.7 of the Anti -Dumping Agreement because no 
separate report wa s made available following the verification visits267 and because the disclosure 
of essential facts contained only general and cursory statements that did not properly disclose the 
"results" of the verification visits.268 Indonesia argued that the lack of proper disclosure prevented 
the investigated producers from defending their interests and, in particular, that it prevented 
PT Musim Mas from effectively defending its interests on the issue of th e existence of a "single 
economic entity " in the subsequent stages of the proceedings.269 
5.120.   In response, the European Union submitted that it had complied with Article  6.7 by either 
"making available" or "disclosing" the results of the verification visits to the investigated producers 
and, in particular , by informing the Indonesian interested parties beforehand about the information 
that was going to be verified, providing a list of exhibits collected during on-the-spot 
investigations , and providing the result s of the verification visits as part  of the general disclosure 
of essential facts to Indonesian exporters and through the communication of a company -specific 
report.270 
5.121.   The Panel's analysis focused on the meaning of the phrase "results of any such 
investigat ions" in Article 6.7  of the Anti -Dumping Agreement . The Panel found that Article 6.7 
elaborates on the more general obligation in Article  6.6 for investigating authorities to "satisfy 
themselves as to the accuracy of the information supplied by interested parties upon which their 
findings are based". On this basis, the Panel found that the purpose of on -the-spot investigations 
                                                
260 European Union's other appellant's submission, para. 82.  
261 Letter dated 5 November 2010 from European Commission to CMS Hasche Sigle concerning AD563  
and PT Musim Mas (Panel Exhibit  EU-1). 
262 See CMS Hasche Sigle, Company -internal memorandum dated 22  November 2010 concerning 
"Inspection Visit Medan 22 -25.11.2010" (Panel Exhibit IDN -27 (BCI)) and CMS Hasche Sigle, Company -internal 
memorandum dated 18 -19 November 2010 concerning "Minutes  Inspection Visit Singapore 18.11.2010" 
(verification of ICOF -S) (Panel Exhibit IDN -38 (BCI)).  
263Letter dated 11 May 2011 from the European Commission to CMS Hasche Sigle concerning 
AD563  Disclosure of provisional findings and PT Musim Mas (Panel Exhibit EU -2 (BCI)) . 
264 Letter dated 2 6 August 2011 from the European Commission to CMS Hasche Sigle concerning 
AD563  Definitive Disclosure and PT Musim Mas (PTMM) ( Disclosure of definitive findings dated 2 6 August 2011) 
(Panel Exhibits EU -10 (BCI) and IDN -17 (BCI)  (excerpt) ). 
265 Panel Report, para. 2.1.  
266 Panel Report, para. 2.2.  
267 Panel Report, para. 7.209 (referring to Indonesia's first written submission to the Panel, para. 6.50 ; 
and second written submission to the Panel, para. 4.3).  
268 Indonesia's first written s ubmission  to the Panel , paras. 6.6 -6.12 and 6.52 -6.54. 
269 Panel Report, para. 7.213 (referring to Indonesia's first written submission to the Panel, para. 6.60).  
270 Panel Report, para. 7.216 (referring to European Union's first  written submission to the Pane l, 
paras.  190-195; and second  written submission to the Panel, para. 168 and fns 121 and  123 thereto ).  WT/DS442/AB/R  
 
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is to enable the investigating authorities to confirm the accuracy of the information supplied by the 
investigated firms.271 
5.122.   Furthermo re, the Panel considered that on -the-spot investigations  involve a specific means 
by which investigating authorities request the exporter to supply evidence demonstrating the 
accuracy of the information supplied by the entities subject to verification . For  the Panel,  
therefore , the "results" of the verification  visit, in the sense of Article 6.7 , should reflect the 
outcome of this process. The Panel held that, at a minimum, the authorities should disclose the 
part of the questionnaire response or other info rmation supplied for which supporting evidence 
was requested, whether any further information was requested, and whether documents were 
collected by the authorities. Further, the results of the verification should state whether the 
producer made available the evidence and additional information requested and indicate whether 
the investigating authorities were or were not able to confirm the accuracy of the information 
supplied by the verified companies in, inter alia , their questionnaire responses.272 
5.123.   The Pan el further noted that the panel in Korea – Certain Paper  had found that disclosure 
pursuant to Article 6.7 must contain "adequate information regarding all aspects of the 
verification ".273 The Panel contrasted the text of Article 6.7 with that of Article 6.9  of the 
Anti-Dumping Agreement  and noted that , while the disclosure obligation under the latter provision 
is limited to "essential facts", the disclosure  obligation under Article  6.7 relates to "results" , rather 
than to "essential " results.274 From this, the  Panel concluded that the obligation to make available 
the results of on -the-spot investigations is not limited to the "essential" results of such 
investigations , nor to the facts that will eventually form the basis of  the decision to impose 
anti-dumping measures.275 
5.124.   The Panel then turned to assess whether the European Union had complied with Article 6.7 
in this case. The Panel noted the European Union's  argument that it had satisfied the obligation in 
Article 6.7 by providing information to PT Musim  Mas in the following three  documents: (i) the 
Disclosure of definitive findings dated 26 August 2011276; (ii) the provisional company -specific 
disclosure concerning PT Musim Mas of May  2011277; and (iii)  the list of exhibits collected on site 
by the EU author ities during the on -the-spot investigations cond ucted at the headquarters of 
PT Musim Mas.278 
5.125.   The Panel examined each of these documents in order to assess whether they contain, 
individually or in combination, information that could be characterized as the "results " of the 
verification visits conducted by the EU authorities. Ultimately, the Panel concluded that the 
EU authorities had not made available or disclosed the "results of any such investigations" to 
PT Musim Mas, as required by Article  6.7, because t hey failed to explain those parts of the 
questionnaire response or other information supplied for which supporting evidence was requested  
and because they also  failed to explain: (i) whether further information was requested; 
(ii) whether PT Musim Mas and its related companies had made available the evidence and 
additional information requested; and (iii) whether the EU authorities were or were not able to 
confirm the accuracy of the information supplied by the verified companies  in, inter alia , their 
quest ionnaire responses.279  
5.126.   Accordingly, the Panel concluded that the European Union had not complied with 
Article  6.7 of the Anti -Dumping Agreement.  
                                                
271 Panel Report, para. 7.222.  
272 Panel Report, para. 7.224.  
273 Panel Report, para.  7.209 (quoting Panel Report, Korea – Certain Paper , para.  7.192) (emphasis 
added by the Panel).  
274 Panel Report, para. 7.226.  
275 Panel Report, para. 7.226.  
276 Panel Report, para. 7.231 (referring to AD563  Disclosure of definitive findings dated 2 6 August 2011 
(Panel Exhibit EU -10 (BCI)) ).  
277 Panel Report, para. 7.231 (refe rring to European Union's response to Panel question No.  49, 
para. 44; second written submission to the Panel, para.  166; and Provisional Company -Specific Disclosure to 
PT Musim Mas, Annex 2 : Calculation of dumping margin (Panel Exhibit IDN -33 (BCI)) ). 
278 Panel Report, para. 7.231 (referring to List of exhibits provided by the Commission to PT Musim Mas 
at the conclusion of three  verification visits (Panel Exhibit EU -14 (BCI)) ). 
279 Panel Report, para. 7.236.  WT/DS442/AB/R  
 
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Interpretation of Article 6.7  5.2.2   
5.127.   On appeal, the European Union's claim of error raises the question of the scope o f the 
"results" of the on -the-spot investigation that must be made available or disclosed pursuant to 
Article 6.7 of the Anti -Dumping Agreement. In particular, the European Union argues that the 
results of the investigation are the essential factual outcomes of the on -the-spot investigations, 
which may bear on the investigating authorities' decision whether to impose an anti -dump ing 
measure, and the content of any such measure.280 Indonesia responds that the European Union 
conflates the requirements of Article  6.7 regarding the disclosure of the results of verification 
visits, and those of Article  6.9 regarding the disclosure of ess ential facts. Indonesia argues that 
these concepts are different, and that the results to be made available or disclosed pursuant to 
Article 6.7 are not limited to the "essential" results of the verification visits.281 
5.128.   Article  6.7 of the Anti -Dumping Agreeme nt provides:  
Article 6  
Evidence  
6.7 In order  to verify information provided or to obtain further details, the 
authorities may carry out investigations in the territory of other Members as required, 
provided they obtain the agreement of the firms concerned and notify the 
representatives of the government of the Member in question, and unless that 
Member objects to the investigation.  The procedures described in Annex  I shall apply 
to investigations carried out in the territory of other Members.  Subject to the  
requirement to protect confidential information, the authorities shall make the results 
of any such investigations available, or shall provide disclosure thereof pursuant to 
paragraph  9, to the firms to which they pertain and may make such results availab le 
to the applicants.  
5.129.   We note that , pursuant to Article 6.7, i nvestigating authorities may carry out 
investigations. Authorit ies are therefore not obliged to conduct an on -the-spot investigation.282 
However, when an on-the spot investigation is carried out, the "results" must be provided to the 
firm subject to such investigation . This disclosure may take place either as a discrete step in the 
overall investigation, or together with the disclosure of the "essential fa cts" pursuant to Article 6.9.  
5.130.   The first sentence of Article 6.7 indicates that this provision is concerned with two  specific 
aspects of the treatment of evidence, namely, verifying  information provided to the investigating 
authorities, and obtaining furth er information. In identifying the verification of information 
provided to the authorities as a purpose of on -the-spot investigations, Article 6.7 is linked to the 
general obligation in Article 6.6 for investigating authorities to "satisfy themselves as to  the 
accuracy of the information supplied by interested parties" upon which the findings of the 
authorities are based.  
5.131.   More detailed procedures concerning on -the-spot investigations are set out in Annex I to 
the Anti -Dumping Agreement . The second  sentence  of Article 6.7 stipulates that these procedures 
shall apply to investigations carried out in the territory of other Members. In 
China  - HP-SSST  (EU), the Appellate  Body noted that Article  6.7 lays out the basic framework on-
the-spot investigations in the territory of another Member, and that Annex I sets out further 
parameters for the conduct of such investigations .283 Echoing the opening phrase of Article  6.7, 
                                                
280 European Union's other appellant's submission, pa ras. 106 -107. 
281 Indonesia's appellee's submission, para. 2.18 (referring to Panel Report, para. 7.226).  
282 See also Panel Reports, EC – Fasteners (China) (Article 21.5 – China) , para. 7.191; Argentina – 
Ceramic Tiles , fn 65 to para. 6.57; Egypt – Steel Reba r, paras.  7.326 -7.327 ; and US – DRAMS , para.  6.78. At 
the same time, we note that Article 6.7 does not grant an unlimited right for investigating  authorit ies to carry 
out investigations in the territory of another Member. Rather, Article 6.7 provides that the authorities must 
obtain the agreement of the firms concerned, and they must notify the representatives of the government of 
the Member in question. Moreo ver, investigating authorities cannot carry out an on-the-spot investigation in 
the territory of another Member if that Member objects.  
283 Appellate Body Report, China – HP-SSST (EU) , para. 5.70. WT/DS442/AB/R  
 
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paragraph 7 of Annex  I expressly identifies the verification of information provided and obtaining  
further details as the "main purpose" of on -the-spot investigation s. This suggests  that on -the-spot 
investigations constitute one possible mechanism that investigating authorit ies may employ  in 
satisfying their duty under Article 6.6 to ensure the accuracy of information supplied by interested 
parties . 
5.132.   Article 6.7 distinguishes between two different groups of recipients with regard to the 
obligation to make available or disclose the results of the on -the-spot investigations: (i) the 
investigated fir ms to which the information pertains; and  (ii) the applicants, that is, those entities 
of the domestic industry that initiated the anti-dumping investigation. If investigating authorit ies 
opt to carry out on -the-spot investigations, then they "shall" commu nicate the results to the 
investigated firms. However, with regard to the applicants, the wording is permissive. Thus, 
investigating authorit ies are not obliged to communicate the results of the on-the-spot 
investigation s to the applicants.  
5.133.   With regard to the information to be provided , Article 6.7 stipulates that the "results" of 
on-the-spot investigations shall be made available  or disclosed . We note that definitions of the 
word "result" include the "effect, consequence, or outcome of some action, process , or design".284 
In Article 6.7, the word "results" thus refers to the outcome of the on -the-spot investigations. We 
further observe that the word "results" is not explicitly limited or qualified in this provision.  
5.134.   We consider that the "results" of on-the-spot investigations are necessarily connected to 
the overall process of such investigations. Paragraph 7 of Annex I provides that such  investigations 
should generally be carried out after the investigating authorit ies have received the responses to 
the quest ionnaires used in the anti -dumping investigation. Thus, this process will usually relate to 
information that has already been provided to the investigating authorit ies by the relevant 
producer or interested party in response to a request by the investigati ng authorit ies. Moreover, 
the process involves an on -site visit aimed at verifying the accuracy of such information and 
soliciting additional relevant information. Paragraph  7 of Annex I further indicates that the process 
requires that the firms concerned be advised in advance of the general nature of the information 
to be verified and of any other information to be provided. Such advance notice forms part of the 
process of the on -the-spot investigation and it also informs the scope of the "results" that mu st 
subsequently be made available. Accordingly, the scope of the on-the-spot investigations and the 
ensuing results to be communicated to the investigated firms vary from case  to case, and are 
informed by the integral parts of the proces s of the on -the-spot investigations , which include the 
questions posed by the investigating authorities, the responses thereto, the scope of the advance 
notice, and the collection of any additional evidence during the on-the-spot investigation.  
5.135.   Furthermore, we consider that the "results" of on -the-spot investigation s encompass both 
the fact that certain information could be verified, as well as the fact that certain information could 
not. Some parts of an on-the-spot investigation may confirm the accuracy of information already 
provided and other parts of the same  on-the-spot investigation may fail to do so or even 
demonstrate that certain information originally provided is inaccurate or incomplete. Whether or 
not these parts confirm the accuracy of information , they all const itute "results" of the 
on-the-spot investigation . 
5.136.   This is not to suggest that disclosure of the results of on -the-spot investigations must 
address each item of information or each piece of evidence reviewed by the investigating 
authorities. The extent to w hich specific types or items of information and evidence were verified 
or collected during the on -the-spot investigation needs to be disclosed will depend in each case on 
what information is requested by and provided to the investigating authorities and ho w the process 
of ensuring its accuracy unfold s during the specific verification visits.  
5.137.   We consider that the remainder of Article 6, within which Article 6.7 is situated, is helpful 
for understanding  what "results" must be communicated by the investigating  authorities. Article  6 
is entitled "Evidence" and contains fourteen  paragraphs  relating to the treatment of evidence in an 
anti-dumping investigation. The rules concerning the conduct of on -the-spot investigations are 
thus situated within a broader set of  provisions regulating the process of identifying and gathering 
                                                
284 Oxford English Dictionary  online , definition of "result":  
http://www.oed.com/view/Entry/164061.  WT/DS442/AB/R  
 
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evidence in anti-dumping duty investigations.285 The Appellate  Body has noted that Article  6, in 
addition to laying down evidentiary rules that apply throughout  the course of an anti -dumping 
investigation, speaks to the due process rights that are enjoyed by interested parties during the 
investigation.286 
5.138.   Due process is promoted in various ways in the provisions of Article 6. For example, 
Article  6.2 stipulates that , throughout the anti -dumping inv estigation, all interested parties shall 
have a full opportunity for the defence of their interests. In addition, Article 6.4 serves a due 
process function by requiring authorities, whenever practicable, to provide timely opportunities for 
all interested p arties to see all information that is relevant to the presentation of their cases, that 
is not confidential, and that is used by the authorities in an anti -dumping investigation. Article 6.4 
also fosters due process by providing that the interested parties  are to be given timely opportunity 
to prepare presentations on the basis of this information. Similarly, Article 6.9 articulates an 
aspect of due process in providing that disclosure of essential facts shall take place in time for the 
parties to be able t o defend their interests. In short, due process as set out in the various 
provisions of Article 6 requires affording an investigated firm a meaningful opportunity to defend 
its interests. This context supports the view that, under Article 6.7, investigated  firms must be 
informed of the "results" in sufficient detail and in a timely manner so as to be placed in a position 
to defend effectively their interests in the remaining stages of the anti -dumping investigation.  
5.139.   In our view, a meaningful exercise of an investigated firm's opportunity to defend its 
interests throughout the anti -dumping investigation pursuant to Article 6.2 is closely tied to the 
availability of information regarding the evidence being considered by the investigating authorit ies. 
In order to defend effectively their interests, the firms to which the results of the investigation 
pertain must be a ccorded access  to the results of the verification visits, regardless of whether 
information could or could not be verified. This is so because infor mation that was successfully 
verified, just as information that could not be verified, may be relevant to the presentation of the 
interested parties' cases.287  
5.140.   In sum, on -the-spot investigations are one mechanism that investigating authorit ies may 
employ in  satisfying their duty, under Article 6.6 of the Anti -Dumping Agreement, to ensure the 
accuracy of information supplied by interested parties. When on -the-spot investigations are 
conducted, Article 6.7 requires that the firms subject to such visits be prov ided with the "results", 
or outcomes, of this verification process . The scope of the on-the-spot investigations and the 
ensuing results to be communicated to the investigated firms var y from case  to case and are 
informed by the integral parts of the proces s of the on -the-spot investigations, which include the 
questions posed by the investigating authorities, the responses thereto, the scope of the advance 
notice, and the collection of any additional evidence during the on -the-spot investigation s. The 
disclo sure of the "results" of the on -the-spot investigation must enable the firm s to which they are 
communicated to discern the information that the authorities considered to have been successfully 
verified, as well as the information that could not be verified , and to be informed of the results in 
sufficient detail and in a timely manner so as to be placed in a position to defend effectively their 
interests in t he remaining stages of the anti -dumping investigation.  
5.141.   With these considerations in mind , we turn to assess of whether the Panel erred in its 
interpretation of Article 6.7 or in finding that the EU  authorities acted inconsistently with 
Article  6.7 of the Anti -Dumping Agreement by failing  to make available or disclose the "results " of 
the on -the-spot investigations to PT  Musim Mas.  
5.2.3   Whether the Panel erred in its interpretation of Article 6.7  
5.142.   The European  Union contends that the Panel erred by interpreting Article 6.7 of the 
Anti-Dumping Agreement as imposing an obligation to provide a document s etting out a complete 
description of the verification process.288 In particular, the European Union takes issue with the 
                                                
285 Appellate Body Reports, China – HP-SSST (EU) , para. 5.73; EC – Tube or Pipe Fittings , para.  138; 
EC – Bed Linen (Article  21.5 – India) , para.  136; US – Carbon Steel (India) , para.  4.418.  
286 Appellate Body Report, China – HP-SSST (EU) , para. 5.73.  
287 In this respect, we note that , pursuant to Article 6.8  of the Anti -Dumping Agreement , investigating 
authorities may , under certain circumstances , have recourse to facts available.  
288 European Union's other appellant's submiss ion, para. 82.  WT/DS442/AB/R  
 
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content of paragraph 7.224 of the Panel Report, where the Panel found that the "results" of the 
verification process must include "at a m inimum" five specific elements . The European Union 
alleges that it does not follow from the Panel's analysis of Article  6.7 that "results" in the sense of 
Article 6.7 must always include these specific elements .289 
For the European Union, the context provided by other paragraphs of Article 6 suggests 5.143.   
that the term "results" in Article 6.7 refers to a category of information closely related to "essential 
facts" within the meaning of Article 6.9. According to the Europ ean Union, the "results of any such 
investigations", together with other information available, form the universe of essential facts 
considered by the investigating authorit ies in their determination. The European Union argues that 
therefore, the "results"  of the on -the-spot investigation to be disclosed are only those that may 
have a bearing on the authorities' decision whether or not to impose an anti -dumping measure 
and, when a measure is applied, on what that measure should be.290 
5.144.   For its part, Indonesia requests us to uphold the Panel's findings in paragraphs  7.236 and 
8.1.d of its Report  that the EU authorities acted inconsistently with Article  6.7 of the Anti -Dumping 
Agreement.291 Indonesia alleges that the European Union conflates the requirements of Art icle 6.7 
regarding the disclosure of the verification results with those of Article 6.9 regarding disclosure of 
the essential facts. Indonesia argues that these concepts are different, and it supports the Panel's 
reasoning that what must be disclosed under  Article 6.7 is not limited to the "essential" results of 
the verification.292 
5.145.   The United States supports the Panel 's finding that, at a minimum, Article 6.7 requires that 
the results disclosed by the authorit ies include discussion of information that was ve rified, not 
verified, or corrected. The United States further submits that trivial or immaterial aspects of what 
occurred during verification need not be disclosed.293 
5.146.   We note that the European Union's appeal focuses on statements made by the Panel in 
paragr aph 7.224 of the Panel Report as part of its interpretation of Article 6.7 spanning several 
pages of the Report. In that paragraph, the Panel first summarized its general view regarding the 
connection between the "results" of the verification visit and the  process by which investigating 
authorities discharge their duty to ensure the accuracy of information provided to them. The Panel 
then identified five specific elements that, in its view, authorities should disclose "at a minimum". 
In particular, the Pane l stated:  
These statements support the view that on -the-spot verifications involve a specific 
means by which the authorities request the exporter to supply evidence of the 
accuracy of the information supplied by the entity or entities subject to verificati on. 
The "results" of the verification should thus reflect the outcome of this process. At a 
minimum, the authorities should disclose the part of the questionnaire response or 
other information supplied for which supporting evidence was requested, whether a ny 
further information was requested, and whether documents were collected by the 
authorities. Further, the results of the verification should state whether the producer 
made available the evidence and additional information requested and indicate 
whether the investigating authorities were or were not able to confirm the accuracy of 
the information supplied by the verified companies in, inter alia , their questionnaire 
responses.294 
5.147.   We recall our explanation above regarding the relationship of Article 6.7 with the general 
obligation in Article 6.6 for investigating authorities to "satisfy themselves as to the accuracy of 
the information supplied by interested parties" upon which the findings of the authorities are 
based. For the reasons set out above, we agree with the first two sentences of the above -quoted  
Panel statement that on-the-spot investigations involve a specific means for verifying the accuracy 
                                                
289 European Union's other appellant's submission, para. 125.  
290 European Union's other appellant's submission, paras. 106 -107. 
291 Indonesia's appellee's submission, para. 2.63.  
292 Indonesia's appellee's  submission, para. 2.18 (referring to Panel Report, para. 7.226).  
293 United States' third participant's submission, para. 74.  
294 Panel Report, para. 7.224.  WT/DS442/AB/R  
 
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of information supplied and t hat the "results" , in the sense of Article 6.7 , should reflect the 
outcome of that verification process.295 
5.148.   However, the European Union appeals the Panel's further statement that , "at a minimum", 
the authorities should disclose the part of the questionnaire response or other information supplied 
for which supporting evidence was requested, whether any further information was requested, and 
whether documents were collected by the authorities.296 The European Union argues that the 
reference in the text of Article  6.7 to the disclosure of essential facts pursuant to Article 6.9 
suggests that the scope of the "results" of the on -the-spot investigation is limited to the essential 
factual outcomes of the verification, which may have a bearing on the authorities' decis ion to 
impose an anti -dumping measure.297 
5.149.   We do not view the elements listed by the Panel in paragraph 7.224 as a closed list of 
items that must be included in every disclosure of the results of an on -the-spot investigation, or 
that will always suffice to me et the requirements of Article 6.7. Nor do we understand the Panel to 
have implied this. While disclosure of this information will typically be required, additional 
information may need to be disclosed in some cases, and less information may suffice in oth ers. 
This comports with our view, expressed above, that the scope of on -the-spot investigations and 
the ensuing "results" to be communicated to the investigated firms vary from case -to-case. 
5.150.   Like the Panel298, we disagree with the European Union that the ref erence to Article 6.9 in 
Article 6.7 suggests that the scope of the "results" of on -the-spot investigations to be disclosed is 
limited to results that are "essential". Article 6.7 identifies two ways in which investigating 
authorities may communicate the r esults of an on -the-spot investigation to the firms to which they 
pertain. The authorities shall either make the results of the investigation available, or they shall 
provide disclosure thereof to the firms to which they pertain pursuant to Article 6.9. In  the latter 
case, the results of the on -the-spot investigation are disclosed to the firms to which they pertain 
along with the "essential facts" under consideration, which form the basis for the imposition of the 
anti-dumping measure. Article 6.7 and Artic le 6.9 contain distinct obligations, each of which 
applies regardless of whether the "results" of the on -the-spot investigations are disclosed around 
the same time as the "essential facts" or separately. The fact that the "results" of an on-the-spot 
invest igation may be disclosed at the same time as the "essential facts" has no  bearing on the 
scope of the "results" of the on -the-spot investigation to be disclosed.  
5.151.   We consider the Panel's statement that the authorities should disclose the part of the 
questio nnaire response or other information supplied for which supporting evidence was 
requested, whether any further information was requested, and whether documents were collected 
by the authorities , to be concordant with our interpretation of Article 6.7 above . In particular, we 
have explained the link between the scope of the "results" to be disclosed and the process of the 
on-the-spot investigation  and the specific steps that occur within that process. We concluded that 
the "results" of the verification are c onnected to and informed by the questions posed by the 
investigating authorit ies, the responses thereto, the advance notice provided by the authorities to 
the investigated firm, and the additional evidence collected during the on -the-spot investigation. 
Moreover, the text of Article 6.7 expressly states that on -the-spot investigations shall serve to 
"obtain further details". Thus, the question of whether further details were requested and obtained 
describes a "result" of the verification process and , accord ingly, we agree with the Panel that this 
forms part of the information to be disclosed pursuant to Article 6.7.  
5.152.   The European Union also challenges the Panel's statement that the results of the 
verification should state whether the producer made available t he evidence and additional 
information requested and indicate whether the investigating authorities were or were not able to 
confirm the accuracy of the information supplied by the verified companies.299 We recall that the 
purpose of on -the-spot investigatio ns is the verification of the information provided by the 
                                                
295 Panel Report, para. 7.224.  
296 European Union's other appellant's submission, para.  162 (referring to Panel Report, para s. 7.224  
and 7.228) . 
297 European Union's other appellant's submission, paras. 106 -107. 
298 Panel Report, para. 7.226.  
299 European Union's other appellant's submission, para. 162 (referring to Panel Report, para s. 7.224  
and 7.228) . WT/DS442/AB/R  
 
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investigated firms. In this regard, we have noted that paragraph 7 of Annex  I to the Anti -Dumping 
Agreement provides that the "main purpose" of on -the-spot investigations is to verify information 
provided or to obtain further details. We consider the question of whether or not the investigating 
authoritie s were able to confirm the accuracy of the information supplied by the verified companies 
to be a key "result" of on -the-spot investigations described in Article 6.7. Moreover, we consider 
the due process function  of the disclosure requirement supports the  view that the "results" of 
on-the-spot investigations also include the response to the question of whether or not the accuracy 
of certain information could be verified . This is  because the ability of all interested parties to 
defend their interests requir es that they be informed in a timely manner of the extent to which the 
investigating authorit ies considered information to have been verified. Accordingly, we consider 
that both the fact that the accuracy of information was confirmed and the fact that the accuracy of 
information could not be confirmed constitute "outcomes" of the verification exercise and are thus 
"results" that must be disclosed pursuant to Article 6.7.  
5.153.   In light of the above considerations, we emphasize that the scope of on -the-spot 
invest igations and the ensuing "results" to be communicated to the investigated firms vary from 
case to case. We do not view the elements listed by the Panel in paragraph 7.224 of its Report as 
constituting a closed list of items that must be included in every d isclosure of the results of an 
on-the-spot investigation, or that will necessarily satisfy the requirements of Article 6.7 . Nor do we 
understand the Panel to have implied this. We therefore consider that the Panel did not err in its 
explanation of the scop e of on -the-spot investigations and the results thereof to be communicated 
to the investigated firms.300 
5.2.4   Whether the Panel erred in finding that the EU authorities failed to make 
available or disclose the results of the on -the-spot investigations to PT Musim  Mas 
5.154.   Finally, we turn to the European Union's claim that the Panel erred in the application of 
Article 6.7  of the Anti -Dumping Agreement . In this respect, the European  Union highlights that the 
verified company, PT Musim Mas, cooperated with the EU  authori ties and that , as a result of the 
verification visit, the corrections to be made to the original responses were agreed between the 
company and the EU authorities. The European Union further explains that a list of documents 
collected during the verificatio n was drafted jointly by the investigating team and the verified firm . 
For the European Union, the Panel erred in denying any relevance to th ese factual elements .301 
5.155.   We recall that in November 2010 the EU authorities conducted on -the-spot investigations 
at the premises of PT  Musim Mas in Indonesia  and at certain of its related companies , including 
ICOF-S in Singapore.302 The EU  authorities informed PT Musim Mas of their provisional findings on 
11 May 2011, and of their definitive findings on 2 6 August 2011.303 
5.156.   In response to Indonesia's allegation before the Panel that the European Union failed to 
disclose the "results" of the on -the-spot investigation s, the European Union contended that those 
"results" had been disclosed  in the following documents:  (i) the Disclosure of definitive findings 
dated 26 August 2011304; (ii) the provisional company -specific disclosure concerning PT Musim 
                                                
300 Panel Rep ort, para. 7.224.  
301 European Union's other appellant's submission, paras. 117 -118. 
302 Letter dated 5 November 2010 from the European Commission to CMS Hasche Sigle concerning 
AD563  and PT Musim Mas ( Panel Exhibit  EU-1); CMS Hasche Sigle, Company -internal me morandum dated 
22 November 2010 concerning "Inspection Visit Medan 22 -25.11.2010" (Panel Exhibit IDN -27 (BCI)); and CMS 
Hasche Sigle, Company -internal memorandum dated 18 -19 November 2010 concerning "Minutes Inspection 
Visit Singapore 18.11.2010" (verifica tion of ICOF -S) (Panel Exhibit IDN -38 (BCI)) . 
303 Disclosure of definitive findings dated 2 6 August 2011) (Panel Exhibit EU -10 (BCI)).  
304 Panel Report, para. 7.231 (referring to Disclosure of definitive findings dated 26 August 2011 (Panel 
Exhibit EU -10 (BCI) ). The Panel noted that the Disclosure of definitive findings sent to PT  Musim Mas on 
26 August 2011 included three annexes: the General Disclosure Document, which was attached as Panel 
Exhibit IDN -39; the Definitive dumping calculation; and the company -specific reply to arguments not 
addressed in detail in the General Disclosure Document.  WT/DS442/AB/R  
 
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Mas of May  2011305; and (iii) the list of exhibits collected on site by the EU authorities during the 
on-the-spot investigations con ducted at the headquarters of PT Musim Mas.306 
5.157.   With respect to the Disclosure of definitive findings dated  26 August 2011307, the Panel 
found that the information contained in this document was largely unrelated to the on -the-spot 
investigations  at issue , beca use it refers to verification visits conducted at the premises of 
investigated producers in Malaysia and India, and at the premises of enterprises forming part of 
the EU domestic industry . The Panel noted that only one recital of the document refers in pas sing 
to the verification visits at PT Musim Mas, and found that this was insufficient to comply with the 
requirements of Article 6.7.308 
5.158.   The Panel then considered the company -specific disclosure documents provided to 
PT Musim Mas at the provisional stage of the investigation and the list of exhibits agreed with 
PT Musim Mas at the end of the on -the-spot investigation. The Panel noted that the 
company -specific disclosure documents include a confidential appendix containing an electronic 
copy of the company's r esponse to the anti -dumping questionnaire and that this copy reflects the 
corrections made to PT  Musim  Mas' electronic response by PT Musim Mas itself and by the 
EU authorities following the verification visits.309 
5.159.   In this respect, the Panel agreed with the European Union that the corrections made to 
PT Musim Mas' original questionnaire response and the lists of exhibits collected on -the-spot are 
outcomes of the verification visit.310 However, the Panel concluded that the various documents, 
taken together, did not comprise the full extent of the "results" of the on -the-spot investigation, 
because they failed to put PT Musim Mas or the Panel in a position to understand in respect of 
which part of the questionnaire response or other information supplied supporting  evidence had 
been requested . Similarly these documents did not convey  whether any further information had 
been requested, whether PT Musim Mas had made available the evidence and additional 
information requested, and whether the EU authorities had or had not been able to confirm the 
accuracy of the information supplied by PT Musim Mas.311 In particular, the Panel explained that , 
by looking at the "List of electronic files" attached to the confidential company -specific disclosure, 
one can understand that som e of the original worksheets provided by PT Musim Mas were 
corrected during the verification visit, but that it was impossible to relate the corrections made to 
any evidence that was verified or not verified by the EU authorities during the on-the-spot 
investigations .312 
5.160.   The European Union takes issue with these Panel findings. The European Union contends 
that the interaction between the EU authorities and the officers of the verified company shows that 
PT Musim Mas understood which part of the questionnaire response had been verified, as well as 
the EU authorities' assessment of the information provided and verified.313  
5.161.   Based on our analysis above, we consider that Article 6.7 imposes an objective standard to 
determine which "results" have to be disclosed subs equent to verification. It does not call for an 
inquiry into what the employees of the firm subject to the verification visit understood at the time 
of that visit. In any event, we do not see that the Panel erred in considering that the E U authorities  
had not identif ied which elements of the information provided by the investigated firm in its 
questionnaire response they had  sought to verify, which elements they had been  able to verify 
successfully, and which elements they had been unable to verify. We have  found above that the 
requirement to disclose the results of a verification  visit requires that such information be provided 
                                                
305 Panel Report, para. 7.231  (referring to European Union's response to Panel question No. 49, 
para. 44; second written submission  to the Panel , para.  166; and Provisional  Company -Specific Disclosure to 
PT Musim Mas, Annex 2 : Calculation of dumping margin (Panel Exhibit IDN -33 (BCI)) ). 
306 Panel Report, para. 7.231 (referring to List of exhibits provided by the Commission to PT Musim Mas 
at the conclusion of three  verificatio n visits (Panel Exhibit EU -14 (BCI)) ). 
307 Panel Exhibit IDN -39. 
308 Panel Report, para. 7.232.  
309 Panel Report, para. 7.233 (referring to Excel file "PTMM definitive disclosure.xls" (Panel Exhibit  EU-12 
(BCI)) ). 
310 Panel Report, para. 7.235.  
311 Panel Report, para. 7.235.  
312 Panel Report, para. 7.235.  
313 European Union's other appellant's submission, para. 159.  WT/DS442/AB/R  
 
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to the investigated firm because the ability of all interested parties to defend fully their interests 
depends also on an understan ding of what information the investigating authorit ies considered to 
have been verified.  
5.162.   Moreover, we consider that the Panel correctly assessed whether the documents disclosed 
to PT Musim Mas enabled it to understand whether the EU authorities had or had not been able to 
confirm the accuracy of the information supplied. In this respect , we note the Panel's observation 
that several worksheets were amended on the basis of Exhibit 1, which is described in Panel 
Exhibit EU -14 as "Corrections to Tables (hard co py + CD -ROM with 6 Excel files)".314 The Panel 
further noted that Exhibits 8, 17 , and 21 collected during the on-the-spot investigations  are the 
corrected versions of PT Musim Mas ' original response for worksheets 2.6, 2.4, and 2.2 
respectively.315 However, th e Panel found that , on the basis of these documents, it was not 
possible to tell whether the changes and corrections were made as a result of what happened 
during the verification visits or for some other reason. In this respect, the Panel referred , as an 
example , to corrections made to the Worksheet 2.2, Cost of Production table for PT Musim Mas . 
The Panel explained that it could not discern if these corrections had been made by the company 
itself or if they had resulted from the verification by EU  authorities of the company's cost of 
production , or from the correction of mathematical errors made in the original submission.316  
5.163.   The Panel took the view that the disclosure of the results of the on -the-spot investigations 
in this case did not allow PT Musim Mas to understand whether the EU authorities had or had not 
been able to confirm the accuracy of the information supplied. On appeal, the European Union has 
not established that the Panel erred in applying Article 6.7 when reviewing the disclosure ma de to 
PT Musim Mas. Accordingly, we find that the Panel did not err in concluding that the EU authorities 
did not comply with the obligation to make available or disclose the "results of any such 
investigations" to PT Musim Mas, as required by Article  6.7 of the Anti -Dumping Agreement . 
5.2.5   Conclusion  
5.164.   We have found that on -the-spot investigations are one mechanism that investigating 
authorit ies may employ in satisfying their duty, under Article 6.6 of the Anti -Dumping Agreement, 
to ensure the accuracy of informa tion supplied by interested parties. When such on -the-spot 
investigations are conducted, Article 6.7 requires that the firms subject to such visits be provided 
with the "results", or outcomes , of this verification process . The scope of on -the-spot 
investig ations and the ensuing "results" to be communicated to the investigated firms vary from 
case to case, and are informed by the integral parts of the process of the on -the-spot 
investigations , which include the questions posed by the investigating authoritie s, the responses 
thereto, the scope of the advance notice, and the collection of any additional evidence during the 
on-the-spot investigation s. In addition, t he disclosure of the "results" of the on -the-spot 
investigation s must enable the firm s to which they are communicated to discern the information 
that the authorities considered to have been successfully verified, as well as the information that 
could not be verified, and to be informed of the results in sufficient detail and in a timely man ner 
so as to be placed in a position to defend effectively their interests in the remaining stages of the 
anti-dumping investigation.   
5.165.   On this basis, we find that the Panel did not err in its interpretation or application of 
Article  6.7 in determining the scope of the on -the-spot investigations and the ensuing "results" to 
be communicated to the investigated firms. Consequently , we uphold  the Panel's finding , in 
paragraphs  7.236 and 8.1.d of its Report, that the EU authorities failed to make available or 
disclose the "results of any such investigations" to PT  Musim Mas, and therefore acted 
inconsistently with Article  6.7 of the Anti -Dumping Agreement.  
                                                
314 Panel Report, fn 5 78 to para.  7.235 (referring to "List of exhibits provided by the European 
Commission to PT Musim Mas at the conclusion  of three verification visits" ( Panel  Exhibit EU -14 (BCI))).  
315 Panel Report, fn 5 78 to para. 7.235 (referring to "List of exhibits provided by the European 
Commission to PT Musim Mas at the conclusion of three  verification visits" (Exhibit EU -14 (BCI)).  
316 Panel Report, fn 5 79 to para. 7.235  (referring to Worksheet 2.2 of Panel Exhibit EU -12, Cost of 
Production table for PT Musim Mas, showing corrections made from the combined exhibits 1 and 21).  WT/DS442/AB/R  
 
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5.3  The European Union's claims under Articles 3 and 19 of the DSU  
The European Union requests us to dismiss Ind onesia's appeal in its entirety as 5.166.   
inconsistent with Article 3 of the DSU because it relates to an expired measure  and, for that 
reason, to find it unnecessary to rule on the substance of Indonesia's appeal .317 In its opening 
statement at the oral hearing, t he European Union framed its request as seeking a finding that the 
present dispute has been resolved and that the relevant issues have therefore become moot.  
5.167.   The European Union also requests us to find that the Panel erred in making a 
recommendation pursua nt to Article 19.1 of the DSU even though the measure at issue had 
expired.318 
5.168.   We begin by addressing the European Union's allegation that Indonesia's appeal is 
inconsistent with Article 3 of the DSU. In the event that we find such an inconsistency, we will 
consider the consequences of such a finding and, in particular, the European Union's request to 
find it unnecessary to rule on the appeal and/or declare the Panel's findings moot and of no legal 
effect. Thereafter, we turn to the separate request by the Eu ropean Union to find that the Panel 
erred in making a recommendation pursuant to Article 19.1 of the DSU with respect to an expired 
measure.  
5.3.1   The European Union's request to dismiss Indonesia's appeal as inconsistent with 
Article 3 of the DSU  
5.3.1.1   Procedural bac kground  
5.169.   The Panel issued its final report to the parties to the dispute on 23 September 2016. While 
that report was being translated, and before the Panel Report was circulated to all WTO  Members, 
the European Union,  on 16 November 2016 , sent an email to t he Panel: (i)  inquiring as to the date 
for circulation of the Panel Report; (ii) asking for at least two  weeks' advance notice of such 
circulation  date; (iii)  informing the Panel that the measure at issue had expired on 12 November 
2016; and  (iv) enclosing  a copy of the notice of expiry from the Official Journal  of the 
European  Union.319 Indonesia was copied on this email.  
5.170.   The Panel Report was circulated to WTO Members on 16 December 2016. It contains no 
reference to the above -mentioned documents and no ment ion of the expiry of the measure at 
issue.  
5.3.1.2   Claims and arguments on appeal  
5.171.   The European Union requests us to find that Indonesia's appe al is inconsistent with 
Article  3 of the DSU because it relates to an expired measure and, for that reason, to find it 
unnecessary to rule on the substance of Indonesia's appeal.320 Conditional upon being granted this 
relief, the European Union withdraws all other elements of its other appeal pursuant to Rule 30 of 
the Working Procedures.321 
5.172.   The European Union argues that almost  all paragraphs of Article 3 of the DSU, as well as 
WTO case law, support the proposition that an appeal is not appropriate when the measure at 
issue is withdrawn or has expired during the panel proceedings.322 The European Union presents 
specific arguments in relation to various paragraphs of Article 3 of the DSU. We address these 
arguments below in the context of our legal analysis.  
                                                
317 European Union's other appellant's submission, para. 4.  
318 European Union's other appellant's submission, para. 23.  
319 European Commission, Notice of the expiry of certain anti -dumping measures, Official Journal of the 
European  Union , C Series, No. 418 (12  November 2016), p. 3.  
320 European Union's other appellant's su bmission, paras. 4 and 21.  
321 European Union's other appellant's submission, para. 21.  
322 European Union's other appellant's submission, para. 6.  WT/DS442/AB/R  
 
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5.173.   Indonesia, for its part, requests us to reject the European Union's request not to rule on 
the substance of the matter raised by Indonesia.323 Indonesia submits that the Appellate Body's 
jurisdiction is governed by Article 17 of the DSU, and that the European Union has failed to point 
to any basis suggesting that Indonesia's appeal is inconsistent with th is provision. Indonesia ref ers 
to Article 17.12 of the DSU, which states that the Appellate Body shall address each of the issues 
raised in accordance with Article 17.6 in appellate proceedings, and asserts that the 
Appellate  Body would fail to comply with this duty if it were to de cline to rule on Indonesia's 
appeal.324 
5.174.   The United States supports Indonesia's position. In particular, the United States submits 
that the expiry of the measure at issue is not a fact that was found by the Panel, and that the 
Appellate Body is, for that reas on, precluded from considering the expiry of the measure at 
issue.325 The United States adds that, in any event, because the Panel was tasked with 
determining whether the measure at issue was consistent with the covered agreements at the time 
of the establis hment of the Panel, any expiry of the measure at issue just before circulation of the 
Panel Report was irrelevant to the Panel's analysis.326 
5.3.1.3   Whether Indonesia's appeal is inconsistent with Article 3  
5.175.   At the outset of our analysis, we note that it is unconte sted by the participants that the 
measure at issue has expired.327 We recall that appellate review is governed primarily by Article 17 
of the DSU. In particular, Article 17.4 stipulates that the parties to the dispute may appeal a panel 
report. It also provi des that third parties have no right to appeal a panel report. However, 
Article  17.4 does not impose limitations on the parties' right to appeal a panel report.  
5.176.   Article 17.12 of the DSU provides that the Appellate Body shall address each of the issues 
raised in accordance with Article 17.6 of the DSU during appellate proceedings. Article  17.6 
stipulates that an appeal shall be limited to issues of law covered in the panel report and legal 
interpretations developed by the panel. Neither of these provisions c ontains any indication that 
expired measures are excluded from appellate review or that it might be unnecessary for the 
Appellate Body to rule on such measures.  
5.177.   We note that , in some cases , the Appellate Body has decided that it was not necessary to 
rule o n a particular claim of error.328 However, the European Union's appeal under Article 3 of the 
DSU in the present case is different from such situation s. While the Appellate Body has 
occasionally considered it unnecessary to rule on a specific claim on appeal  once it had addressed 
another claim in the same appeal, the European Union's claim under Article 3 relates to 
Indonesia's conduct in bringing the appeal at all. Moreover, when coupled with its own conditional 
withdrawal of the appeal, the European Union i s effectively requesting us to make no ruling at all. 
At the same time, it is important to note that the European Union does not contest the 
Appellate  Body's jurisdiction or request us to decline to exercise such jurisdiction.329 Rather, the 
European  Union s ubmits that an appeal is not appropriate, and is inconsistent with Article 3 of the 
DSU, when the measure at issue has been withdrawn or has expired in the course of the panel 
proceedings.  
5.178.   The European Union invokes several provisions of Article 3 of the D SU in support of its 
position. In particular, the European Union refers to Article 3.2330, which provides that the dispute 
                                                
323 Indonesia's appellee's submission, para. 4.61.  
324 Indonesia's appellee's submission, paras. 4.19 and 4.21.  
325 United States' third participant's submission, para. 21.  
326 United States' third participant's submission, para. 28.  
327 Indonesia's appellee's submission, para. 4.15; European Union's other appellant's submission, 
para. 3. 
328 Appellate Body Report s, China – Auto Parts , para. 209. See also Appellate Body Reports, EU – 
Biodiesel (Argentina) , para. 6.89; and US – Shrimp (Thailand) / US – Customs Bond Directive , para. 285.  
329 European Union's opening statement and response to questioning at the oral hearing .  
330 Article 3.2 of the DSU provides:  
The dispute settlement system of the WTO is a central element in providing security and 
predictability to the multilateral trading system. The Members recognize that it serves to 
preserve the rights and obligations of Members  under the covered agreements, and to clarify the 
existing provisions of those agreements in accordance with customary rules of interpretation of 
 WT/DS442/AB/R  
 
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settlement system of the WTO serves to preserve the rights and obligations of Members  under the 
covered agreements, and argues that onc e the measure at issue has expired there is nothing left 
to "preserve".331 The European Union also refers to Article 3.4332, which provides that 
recommendations or rulings made by the DSB shall be aimed at achieving a "satisfactory 
settlement of the matter" in  accordance with the rights and obligations under the DSU and the 
covered agreements. For the European Union, when the measure at issue has expired, then a 
"satisfactory settlement" of the matter has already been achieved.333 In the same vein, the 
European U nion refers to Article 3.7, which expresses as an aim of the dispute settlement 
mechanism the securing of a "positive solution" to a dispute. The European Union asserts that the 
first objective of the dispute settlement mechanism is usually to secur e withdrawal of the measure 
at issue. For the European Union, it follows that because in the present case, a positive solution to 
the dispute has been achieved with the withdrawal of the measure, pursuing the appeal would be 
"pointless"334, rather than "fruit ful", as required by Article 3.7 of the DSU. In addition, the 
European Union refers to Article 3.10, which provides that all Members will engage in the 
procedures set out in the DSU in good faith in an effort to resolve the dispute. The European Union 
argues that, following the expiry of the measure, there is no longer any dispute between the 
parties, and that Article 3.10 therefore also supports its view that an appeal is inappropriate in this 
case. 
5.179.   These arguments reflect different permutations of the pro position that a dispute no longer 
exists after the withdrawal of the measure at issue. However, the Appellate Body has expressly 
rejected the proposition that the repeal of a measure necessarily constitutes, without more, a 
"satisfactory settlement of the matter", and has recognized that benefits accruing to a Member 
may be impaired by measures whose legislative basis has expired.335 The Appellate Body has also 
recognized that the fact that a measure has expired is not dispositive of the question of whether a  
panel can address claims in respect of that measure.336 Similarly, we consider that the expiry of 
the measure at issue does not, without more, render it unnecessary for us to rule on Indonesia's 
appeal. Significantly, pursuant to Article 3.7, Members are ex pected to be largely self -regulating in 
deciding if any action under the DSU would be "fruitful".337  
5.180.   As a general matter, the Appellate Body has held that it is within the panel's discretion to 
decide how it takes into account subsequent modifications to, or the repeal of , the measure at 
issue.338 This encompasses discretion either to make findings or not with respect to an expired 
measure. In exercising this discretion, panels have considered, inter alia , whether the measure 
could easily be re -imposed.339 In the present case, the European Union has not advanced specific 
arguments relating to the nature of the measure at issue in support of its contention that this 
dispute has been resolved. Rather, the European Union's submission focuses on the expiry of the 
measure itself. However, for the reasons above, we consider that Indonesia is not barred from 
pursuing an appeal just because the measure at issue has expired.  
5.181.   The European Union also refers to Article 3.3  of the DSU340, arguing that the reference to 
"prompt settlement" in th is provision implies that additional steps in WTO dispute settlement 
                                                                                                                                                  
public international law. Recommendations and rulings of the DSB cannot add to or diminish the 
rights and obli gations provided in the covered agreements.  
331 European Union's other appellant's submission, para. 10.  
332 Article 3.4 of the DSU provides:  
Recommendations or rulings made by the DSB shall be aimed at achieving a satisfactory 
settlement of the matter in acco rdance with the rights and obligations under this Understanding 
and under the covered agreements.  
333 European Union's other appellant's submission, para. 12.  
334 European Union's other appellant's submission, para. 15.  
335 Appellate Body Report, US – Upland Cotton , para. 270. 
336 Appellate Body Reports, EC – Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III 
(Article  21.5 – US), para. 270.  
337 Appellate Body Report, EC – Bananas III , para. 135.  
338 Appellate Body Reports, EC – Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III 
(Article  21.5 – US), para. 270. 
339 Panel Report, India – Additional Import Duties , paras. 7.69 -7.70. In particular, th at panel relied upon 
its observation that India faced no meaningful obstacle in reinstating the measure.  
340 Article 3.3 of the DSU provides:  
The prompt settlement of situations in which a Member considers that any benefits accruing to it 
directly or indirectly under the covered agreements are being impaired by measures taken by 
 WT/DS442/AB/R  
 
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proceedings after the expiry of the measure at issue are both non -essential and contrary to the 
objectives of the WTO dispute settlement system. The European Union adds t hat such proceedings 
threaten to delay unnecessarily and prevent the prompt settlement of other disputes and hence 
the effective functioning of the WTO dispute settlement system.341 
5.182.   In our view, th e European Union's reading of Article 3.3 of the DSU is at od ds with the 
interpretation given by the Appellate Body in US – Upland Cotton  and EC – Bananas  III 
(Article  21.5 – US). The Appellate  Body found contextual support in Article  3.3 of the DSU for 
interpreting the words  "measures at issue" in Article 6.2 as no t excluding expired measures from 
its scope. The Appellate Body highlighted that Article 3.3 connects the words "prompt settlement" , 
not to "existing" measures or measures "currently in force", but to "measures taken" by a 
Member, which includes measures t aken in the past.342 Thus, the proposition underpinning this 
part of the European Union's argument has been expressly rejected by the Appellate Body.  
5.183.    The European Union further invokes Article 3.8 of the DSU, arguing that the fact that a 
measure has expired  constitutes at least a prima facie  rebuttal of the presumption enshrined in 
this provision that one Member's breach of a WTO obligation results in the nullification and 
impairment of benefits enjoyed by other Members.343 We note, however, that demonstrating  
continuing nullification or impairment is not a prerequisite for pursuing an appeal.  
5.184.   Finally, the European Union refers to Article 3.9344 of the DSU , and alleges that Indonesia 
is using the appeal procedure to seek an authoritative interpretation of particu lar provisions of the 
covered agreements, even though other procedures are set out for this purpose in the Marrakesh 
Agreement Establishing the World Trade Organization ( WTO Agreement ). The European Union 
asserts that Indonesia is requesting clarification or interpretation of certain provisions of the 
covered agreements in abstract terms, and that it is seeking an "advisory opinion" in a manner 
disconnected from any ongoing dispute.345  
5.185.   In the present case, Indonesia has not requested an interpretation in the  abstract, but the 
reversal of specific findings in the Panel Report. In particular, Indonesia has requested us to 
reverse the Panel's finding that the EU  authorities did not act inconsistently with Article 2.4 of the 
Anti-Dumping Agreement.346 Indonesia is requesting us to review, inter alia , the 
Panel's  interpretation of a specific provision of the covered agreements, and, in this sense, it is 
no different from other appeals brought before the Appellate Body.  
5.3.1.4   Conclusion  
5.186.   For the reasons above, we find that, in appealing the Panel Report notwithstanding the 
expiry of the measure at issue, Indonesia did not act inconsistently with Article 3 of the DSU. We  
reject the European Union's requests to find it unnecessary to rule on the matter raised in 
Indonesia's app eal or to declare moot and of no legal effect all of the findings and conclusions 
made by the Panel.  
5.3.2   The European Union's claim that the Panel erred in making a recommendation 
with respect to an expired measure (Article  19.1 of the DSU)  
5.187.   We now turn to the European Union's appeal under Articl e 19.1 of the DSU. The 
European  Union requests us to find that the Panel erred because it made a recommendation with 
                                                                                                                                                  
another Member is essential to th e effective functioning of the WTO and the maintenance of a 
proper balance between the rights and obligations of Members.  
341 European Union's other appellant's submission, para. 11.  
342 Appellate Body Reports, US – Upland Cotton , para. 264; and EC – Bananas I II (Article 21.5 – 
Ecuador  II) / EC – Bananas III (Article 21.5 – US), para.  268. 
343 European Union's other appellant's submission, para. 16.  
344 Article 3.9 of the DSU provides:  
The provisions of this Understanding are without prejudice to the rights of Memb ers to seek 
authoritative interpretation of provisions of a covered agreement through decision -making under 
the WTO Agreement or a covered agreement which is a Plurilateral Trade Agreement.  
345 European Union's other appellant's submission, para. 17.  
346 Indon esia's Notice of Appeal, para. 10 (referring to Panel Report, paras. 7.96 -7.97, 7.160 -7.161  
and 8.1.b.i) . WT/DS442/AB/R  
 
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respect to an expired measure , and to reverse paragraph 8.3 of the Panel Report, in which the 
Panel rec ommended that the European Union bring its measures into conformity with its 
obligations under the Anti -Dumping Agreement.347 For its part, Indonesia requests us to reject the 
European  Union's request and to find that the Panel did not err in making a recomm endation with 
respect to the measure at issue.348 
5.3.2.1   The Panel's findings  
5.188.   In Section 8 of its Report, the Panel concluded that the European Union had acted 
inconsistently with Article 6.7 of the Anti -Dumping Agreement349 and recommended that the 
European Union br ing its measures into conformity with its obligations under the Anti -Dumping 
Agreement.350 The Panel Report contains no  reference to the expiry of the measure at issue.  
5.3.2.2   Claims and arguments on appeal  
5.189.   The European Union argues that , by making a recommendatio n with respect to an expired 
measure, the Panel acted inconsistently with its obligation to make an objective assessment of the 
matter before it, thereby contravening Articles 11 and 19.1 of the DSU. The European Union 
contends that these provisions envisa ge a situation in which a measure (and hence a violation) 
exists. However, when the measure and thus the violation have ceased to exist, it does not make 
sense for a panel to make a recommendation.351  
5.190.   The European Union further contends that the Panel's fai lure to address, in its Report, the 
European Union's communication concerning the expiry of the measure at issue constituted a 
separate and additional breach of its duty under Article 11 to make an objective assessment of the 
matter before it. The European  Union acknowledges that it notified the Panel very late in the 
proceedings. However, work still continued under the Panel's authority at that point in time such 
that, for the European Union, the Panel could and should have addressed a matter as fundamenta l 
as the expiry of the measure, which was not contested by Indonesia.352 
5.191.   For its part, Indonesia requests us to reject the European  Union's request and to find that 
the Panel did not err in making a recommendation with respect to the measure at issue. Indone sia 
does not contest that the measure at issue has expired.353 However, for Indonesia, the expiry of 
the measure at issue occurred too late to be taken into account by the Panel. Because the 
European Union notified the expiry of the measure more than three m onths  after the interim 
report had been issued to the parties, the Panel was no longer entitled to incorporate this fact into 
its decision.354 
5.192.   In support of its position, Indonesia highlights that the panel in China – GOES 
(Article  21.5 – US) declined to adm it as new evidence China's notification that the measure at 
issue in that dispute had been terminated, because China had notified the panel only after the 
interim report had been issued.355 In addition, Indonesia refers to the panel report in 
EC - Bananas  III (Article  21.5 – US), explaining that the panel in that dispute declined to take into 
account changes in the measure at issue, because the request to do so was made only at the 
interim review stage.356  
5.193.   Moreover, Indonesia asserts that for the Panel to have  admitted evidence concerning the 
expiry of the measure at issue after the interim report had been issued would have been contrary 
                                                
347 European Union's other appellant's submission, para. 23.  
348 Indonesia's appellee's submission, para. 4.51.  
349 Panel Report, para. 8.1 .d. 
350 Panel Repor t, para. 8.3.  
351 European Union's other appellant's submission, para. 23 (referring to Appellate Body Report, 
US - Certain EC Products , para. 81).  
352 European Union's other appellant's submission, para. 23.  
353 Indonesia's appellee's submission, para. 4.60.  
354 Indonesia's appellee's submission, para. 4.52.  
355 Indonesia's appellee's submission, para. 4.5 4 (referring to Panel Report, China – GOES 
(Article  21.5 – US), paras. 6.20 –6.25. 
356 Indonesia's appellee's submission, para. 4.54 (referring to Panel Report s, EC – Bananas III 
(Article  21.5 – Ecuador II) / EC – Bananas III (Article 21.5 – US), para. 6.18 ). WT/DS442/AB/R  
 
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to paragraph 7 of the Panel's Working Procedures. This provision requires all factual evidence to be 
submitted to the Panel n o later than during the first  substantive meeting, except evidence 
necessary for purposes of rebuttal, answers to questions and comments on answers provided by 
the other party . Paragraph 7 also  provides that exceptions to this procedure shall be granted on ly 
upon a showing of good cause.357 
5.194.   Finally, Indonesia submits that the Appellate Body's mandate does not permit it to take 
into account the expiry of the measure. Indonesia asserts that the Appellate Body must base its 
review on the factual record as established by the panel and that no new evidence may be 
admitted in the appellate proceeding s.358 
5.195.   The United States subm its that the Panel's making of a recommendation is consistent with 
the requirements of the DSU. It is the challenged measures as they existed at the time of panel 
establishment that are within the terms of reference. When a panel has found a measure within  its 
terms of reference to be inconsistent with the covered agreements, the panel must make a 
recommendation.359 Moreover, the United States agrees with Indonesia that evidence regarding 
the expiry of the measure at issue is not part of the Panel record, and  therefore cannot be taken 
into account by the Appellate Body.360  
5.3.2.3   Whether the Panel erred in making a recommendation pursuant to Article 19.1 
with respect to an expired measure  
5.196.   We begin with the text of Article 19.1 of the DSU:  
Article 19  
Panel and Appellate Body Recommendations  
1. Where a panel or the Appellate Body concludes that a measure is inconsistent 
with a covered agreement, it shall recommend that the Member concerned  bring the 
measure into conformity with that agreement.  In addition to its recommendations, the 
panel or Appellate Body may suggest ways in which the Member concerned could 
implement the recommendations.361 
5.197.   We note that the provision refers to "a measure". It does not further qualify the "measure" 
and, in particular, it does not ex clude from its scope any particular measures, such as expired 
measures. We consider Article 6.2 of the DSU to have contextual relevance for the interpretation 
of the term "measure" in Article 19.1, because the former provision describes the type of 
measure s that may fall within the ambit of panel proceedings, and thus, may ultimately be subject 
to a panel's recommendation pursuant to Article 19.1. Article 6.2 stipulates:  
Article 6  
Establishment of Panels  
2.  The request for the establishment of a panel sha ll 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. In case the applicant requests the establishment of a panel with other 
than standard terms of reference, the written request shall include the proposed text 
of special terms of reference.  
5.198.   Article 6.2 refers to "measures at issue". The Appellate Body has noted that the words  "at 
issue" furth er qualify the "measure" in Article 6.2. The Appellate Body has also expressly rejected 
                                                
357 Indonesia's appellee's submission, para. 4.55.  
358 Indonesia's appellee's submission, para. 4.57 (referring to Appellate Body Report, US – Softwood 
Lumber V (Article 21.5 – Canada) , para. 9).  
359 United States' third participant's submission, paras. 46 -50. 
360 United States' third participant's submission, para. 24.  
361 Footnotes omitted.  WT/DS442/AB/R  
 
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the proposition that an expired measure could not be a measure "at issue" in terms of Article  6.2 
of the DSU.362 Instead, referring to the relevant context provided by Ar ticle 3.3  of the DSU , the 
Appellate Body has highlighted that this provision does not refer to "existing" measures or 
measures "currently in force", but to "measures taken" by a Member. Accordingly, the 
Appellate  Body considered this reference to encompass  measures taken in the past. We consider 
that Article  3.3 also has  contextual relevance for the interpretation of Article  19.1, similarly 
suggesting that the term "measures" in that provision is not limited to "existing" , but also covers 
expired measures.  
5.199.   Article 19.1 further stipulates that panels and the Appellate Body "shall recommend" that 
the Member concerned bring the measure into conformity with the covered agreements when they 
conclude that a measure is inconsistent with a covered agreement. We atta ch significance to the 
fact that Article 19.1 is expressed in mandatory terms and linked directly to the findings made by 
a panel. This suggests that it is not within a panel's or the Appellate Body's discretion to make a 
recommendation in the event that a  finding of inconsistency has been made.  
5.200.   At the same time, the Appellate Body has found that the expiry of the measure may affect 
what recommendations a panel may make.363 In this vein, some panels have found it not 
appropriate to make a recommendation to th e DSB after they had found that the measure was 
no longer in force.364 Other panels have made a recommendation in such circumstance, albeit 
limited in scope.365 In US – Certain EC Products , the Appellate Body found an inconsistency 
between the finding of the p anel that the relevant measure was no longer in existence and the 
subsequent recommendation of the panel that the DSB request the United States bring that 
measure into conformity with its WTO obligations.366 
5.201.   We note that those cases differ from the present c ase in that the Panel in the present case 
made no finding on , or mention of , the expiry of the measure at issue in the Panel Report. Absent  
any finding or acknowledgement by the Panel that the measure at issue is no longer in force, there 
was no basis for the Panel to have departed from the requirement in Article 19.1 of the DSU to 
make a recommendation after having found that measure to be inconsistent with the covered 
agreements. In this vein, we note that , while the Appellate Body has held that , as a general 
matter, it is within the panel's discretion to decide how to take into account subsequent 
modifications to, or the repeal of , the measure at issue367, the Appellate Body has also clarified 
that, where a measure has expired, a panel is not prec luded from making a recommendation on 
such a measure.368 In light of these considerations, we conclude that the Panel in this dispute did 
not err in making a recommendation pursuant to Article 19.1 of the DSU.  
5.202.   As a separate matter, the European Union alleges  that the Panel erred by failing to refer  in 
its Report to the European Union's communication concerning the expiry of the measure at issue.  
The European Union contends that the Panel thus failed to make an objective assessment of the 
matter before it, as required by Article 11 of the DSU.  
5.203.   We recall  that the European Union sent its communication to the Panel on 16  November 
2016. At that point in time, the Panel had concluded the interim review and had issued, on 
23 September 2016, its final report to the pa rties. This claim  thus raises the question as to 
whether the Panel could or should have considered evidence submitted after completion of all 
formal procedural steps except the circulation of its Report to Members.  
                                                
362 Appellate Body Report s, EC – Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III 
(Article  21.5 - US), para. 268.  
363 Appellate Body Report, US – Upland Cotton , para. 27 2. 
364 Panel Reports, Dominican Republic – Import and Sale of Cigarettes , paras. 7.359 –7.363, 
7.389 -7.393, and 7.415 –7.419; US – Poultry (China) , para . 8.7. 
365 For instance, the panel in Thailand – Cigarettes (Philippines)  made a recommendation with respect to 
expired measures "only to the extent they continue to have effect s". (Panel Report, Thailand – Cigarettes 
(Philippines) , para. 8.8. See also paras. 6.24-6.25) 
366 Appellate Body Report, US – Certain EC Products , para. 81. 
367 Appellate Body Reports, EC – Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III 
(Article  21.5 – US), para. 270. 
368 Appellate Body Report s, China – Raw Materials , para. 264.  WT/DS442/AB/R  
 
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5.204.   We note that panel proceedings consist of  two main stages, the first of which involves each 
party setting out its "case in chief, including a full presentation of the facts on the basis of 
submission of supporting evidence", and the second is designed to permit the rebuttal by each 
party of the a rguments and evidence submitted by the other parties.369 The Appellate Body and 
panels have consistently held that the interim review stage is not an appropriate time to introduce 
new evidence.370 For instance, in EC – Sardines , the Appellate Body concluded th at the panel did 
not act inconsistently with Article  11 of the DSU in refusing to take into account new evidence 
during the interim review.371 In the present dispute , information regarding the expiry of the 
measure at issue was not submitted during interim r eview, but much later, after the final report 
had been issued to the parties.  
5.205.   In addition, we note that paragraph 7 of the Panel's Working Procedures provides that 
each party shall submit all factual evidence to the Panel no later than during the first su bstantive 
meeting, except with respect to evidence necessary for purposes of rebuttal, answers to questions 
and comments on answers provided by the other party. The Working Procedures further provide 
that exceptions to this procedure shall be granted only upon a showing of good cause, and that , 
where such an exception has been granted, the Panel shall accord the other party a period of time 
for comment, as appropriate, on any new factual evidence submitted after the first substantive 
meeting.  
5.206.   Information re garding the expiry of the measure at issue was submitted after the time 
foreseen in the Panel's Working Procedures for the submission of evidence. Accordingly, pursuant 
to paragraph 7 of those Working Procedures, the European Union should have shown good c ause 
for providing information at a late stage in the proceedings. However, the European Union 
provided no explanation for the late submission of information regarding the expiry of the measure 
at issue. Moreover, the European Union did not specifically re quest that the expiry of the measure 
be addressed by the Panel in its Report.  
5.207.   For all of these reasons , we find that the Panel did not exceed the bounds of its discretion 
by not referring to the European Union's communication concerning the expiry of the m easure at 
issue in its Report.  
5.3.2.4   Conclusion  
5.208.   We have found that , as a general matter, it is within a panel's discretion to decide how to 
take into account subsequent modifications  to, or the repeal of , the measure at issue. In the 
absence of any finding or acknowledgement by the Panel that the measure at issue is no longer in 
force, there was no basis for the Panel to have departed from the requirement in Article 19.1 of 
the DSU to make a recommendation  after having found that measure to be inconsistent with the 
covered agreements. Accordingly, we find that the Panel did not err or act inconsistently with 
Article 19.1 or Article 11 of the DSU in making a recommendation, at paragraph 8.3 of its Report, 
with respect to the measure at issue.  
5.4  The European Union's claim under Article 12.12 of the DSU  
5.209.   The European Union requests us to reverse the Panel's findings that:  
i. the European Union has not demonstrated sufficiently that the correspondence sent 
by the Per manent Mission of Indonesia to the WTO  Secretariat on 11 July 2013 
constituted a request to suspend the work of the Panel in the sense of 
DSU Article  12.12;  
ii. the work of the Panel was not suspended; and  
                                                
369 Appellate Body Report s, Thailand – Cigarettes  (Philippines) , para. 149; Argentina – Textiles and 
Apparel , para. 79; and US – FSC (Article 21.5 – EC), para. 240.  
370 Appellate Body Reports, EC – Sardines , para. 301; and EC – Selected Customs Matters , para. 2 59. 
371 Appellate Body Report, EC – Sardines , para. 301. See also Panel Reports, EC – IT Products , 
paras.  6.47–6.48; and EC – Bananas III (Article 21.5 – Ecuador II) / EC  – Bananas III (Article 21.5 – US), 
para. 6.18. WT/DS442/AB/R  
 
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iii. the authority for the establishment of this Panel ha d not lapsed.372 
5.210.   In addition, the European Union requests us to complete the legal analysis, find that the 
authority for the establishment of the Panel had lapsed pursuant to Article 12.12 of the DSU, and, 
for that reason, to reverse or declare moot all of t he other conclusions and recommendations of 
the Panel.373 
5.211.   We begin with a brief description of the factual background relevant to this claim. We then 
provide an overview of the relevant Panel findings before turning to our interpretation of 
Article  12.12 of the DSU and our assessment of whether the Panel erred in reaching the above 
conclusions.  
5.4.1   Factual background  
5.212.   On 1 May 2013, Indonesia requested the establishment of a panel.374 At its meeting on 
25 June 2013, the DSB established the Panel. On 10 July 2013, th e WTO  Secretariat requested to 
hear the parties' preferences with respect to possible panelists, and proposed a meeting for that 
purpose on 12 July 2013. That same day, the European Union indicated that it would be able to 
attend the meeting. The next day,  Indonesia responded by email that it would like "to suspend the 
meeting while waiting the development from Brussel". On the same day, the WTO  Secretariat 
responded to Indonesia's communication, indicating to the parties that the meeting was cancelled  
pending further communication .375 
5.213.   On 12 September 2014, Indonesia informed the EU Delegation in Geneva of its intention to 
proceed with the dispute and , on 19 September, the Indonesian Delegation sent a message to the 
WTO Secretariat and the EU Delegation reques ting to "re -activate" the process of panel 
composition. A meeting to discuss panel composition was held on 29  September 2014376, and, on 
18 December 2014 , the Panel was composed by the Director -General.377 
5.4.2   The Panel's findings  
5.214.   On 8 January 2015, the European U nion requested the Panel to issue a preliminary ruling 
and find that its authority had lapsed, pursuant to Article  12.12 of the DSU, as a consequence of 
an alleged suspension of the Panel proceedings for more than 12  months. The European Union 
reiterated i ts request at the organizational meeting of the Panel on 30  June 2015.378  
5.215.   The European Union asserted that Indonesia had sent a request to the WTO  Secretariat on 
11 July 2013 with a view to suspending the work of the Panel in accordance with the first sente nce 
of Article  12.12 of the DSU.379 For the European  Union, the fact that Indonesia's request was made 
before the composition of the Panel did not affect its legal significance. In the view of the 
European  Union, pending panel composition, a request to suspe nd the work of a panel can be 
disposed of by the WTO  Secretariat as part of its right to exercise "reasonable executive action" on 
behalf of the panel.380 
5.216.   Indonesia requested the Panel to reject the European Union's request and to rule instead 
that the Panel 's authority had not lapsed. Indonesia argued that the 11 July 2013 email  
correspondence from the Permanent Mission of Indonesia to the WTO  Secretariat was not a 
request to suspend the work of the Panel under Article 12.12. Indonesia highlighted that the 
communication neither expressly referred to the "suspension" of the Panel's "work", nor included a 
                                                
372 European Union's other appellant's sub mission, paras. 24 and 79 (referring to Panel Report, 
paras.  7.29 and 8.1.a).  
373 European Union's other appellant's submission, para. 80.  
374 WT/DS442/2.  
375 Email correspondence of 10 and 11 July 2013 between the WTO Secretariat and the parties 
(Panel  Exhibit  IDN-2). 
376 Email correspondence of 12, 19, and 22 September 2014 between the WTO Secretariat and the 
parties (Panel Exhibit  IDN-8). 
377 WT/DS442/3.  
378 Panel Report, para. 7.10.  
379 Panel Report, para. 7.14 (referring to European Union's request for a preliminary  ruling, para. 13).  
380 Panel Report, para. 7.14 (referring to European Union's request for a preliminary ruling, para. 35).  WT/DS442/AB/R  
 
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reference to Article  12.12 of the DSU. According to Indonesia, the message was simply a response 
to an invitation by the WTO Secretariat to attend a meeting r egarding panel composition.381 In 
addition, Indonesia  argued that the work of the Panel could not have been suspended before the 
Panel had been composed, since Article  12.12 calls for a panel to decide whether or not a 
suspension should be granted. According to Indonesia, this discretio n conferred on panels to 
deliberate and decide on such requests presupposes that panelists have been appointed.382 
5.217.   On 23 November 2015, the Panel issued a preliminary ruling finding that its authority had 
not lapsed pursuant to Article  12.12 of the DSU. The Panel considered that three conditions must 
be fulfilled before it can be concluded that a panel's authority has lapsed:  (i) the complaining party 
must have submitted a request to suspend the work of the panel;  (ii) the panel must have 
suspended its work; and (iii) the work of the panel must have been suspended for more than 
12 months.383 
5.218.    The Panel then turned to the facts of this dispute and assess ed Indonesia's 
communication of 11 July 2013. In this respect , the Panel referred to the Appellate Body reports  in 
EC - Bananas  III (Article  21.5 – Ecuador II) / EC – Bananas III (Article  21.5 – US), highlighting 
that the Appellate Body had held that , because the relinquishment of rights granted by the DSU 
cannot be lightly assumed, the language in any documents al leged to waive such rights must 
"reveal clearly that the parties intended to relinquish their rights".384 The Panel considered this to 
be relevant, because the practical effect of Article  12.12 is that a complainant is deprived of the 
right to continue with a claim in the event that 12 months pass following the suspension of a 
panel's work.  
5.219.   Turning to the facts of this dispute, the  Panel then considered that it had to determine, as 
a threshold matter, whether Indonesia had made a request to suspend the work of the Panel.385 
The Panel reviewed the text of Indonesia's communication of 11 July 2013 and found that the 
European  Union had not demonstrated that Indonesia had made a request in the sense of the 
first sentence of Article 12.12  of the DSU . The Panel concluded that , in the absence of such a 
request, the Panel's work had not been suspended and the Panel's authority  had therefore not 
lapsed.386 
5.4.3   Interpretation of Article 12.12  
5.220.   The European Union's claim of error raises the question of whether panel proceed ings may 
be suspended before panel composition has been completed. In this section , we provide an 
interpretation of Article 12.12  of the DSU , focusing on this question. In the next section , we assess 
whether, in light of the interpretation of Article 12.12  and taking into account the specific 
circumstances of this case, the Panel erred in finding that , in this dispute , the Panel's authority had 
not lapsed.  
5.221.   We begin by considering the text of Article 12.12 of the DSU, which provides:  
Article  12 
Panel Procedu res 
12. The panel may suspend its work at any time at the request of the complaining 
party for a period not to exceed 12 months. In the event of such a suspension, the 
time-frames set out in paragraphs 8 and 9 of this Article, paragraph 1 of Article 20, 
and paragraph 4 of Article 21 shall be extended by the amount of time that the work 
                                                
381 Panel Report, para. 7.15.a (referring to Indonesia's response to European Union's request for a 
preliminary ruling, paras. 4.5 and 4.7-4.8). 
382 Panel Report, para. 7.1 5.b (referring to Indonesia's response to European Union's request for a 
preliminary ruling, paras. 4.16 and 4.40-4.41).  
383 Panel Report, para. 7.20.  
384 Panel Report, para. 7.22 (quoting Appellate Body Reports, EC – Bananas  III (Article  21.5 – 
Ecuador  II) / EC – Bananas III (Article  21.5 – US), para. 217).  
385 Panel Report, para. 7.24.  
386 Panel Report, para. 7.29.  WT/DS442/AB/R  
 
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was suspended. If the work of the panel has been suspended for more than 
12 months, the authority for establishment of the panel shall lapse.  
5.222.   The first sentence of Article 12.12 provides that a panel may suspend its work at any time 
at the request of the complaining party. Suspension pursuant to this provision thus requires a 
request by the complainant. We further note that this provision stipulates that the panel "may" 
suspend its work. Accordingly, a request by a complainant does not automatically lead to 
suspension of panel proceedings. Rather, suspension ensues from the exercise of discretion and a 
decision in a particular case.  
5.223.   The subject of the first sentence of Articl e 12.12 is "[t]he panel". This indicates that it is 
for the panel to decide whether or not to suspend its work. This is further confirmed by the fact 
that the sentence makes no reference to any other entity, such as the DSB or the 
WTO Secretariat.  
5.224.   This rai ses the question of whether the decision to suspend the work of a panel can be 
taken at any point after panel establishment or only once panel composition is complete. In this 
respect, we note that Article 12.12 does not further qualify or elaborate upon t he word "panel". In 
particular, it does not refer to an "established" or "composed" panel. Article 12.12 does, however, 
identify what may be suspended  - "its work"  - that is, the work of the panel. The verb "suspend" 
suggests putting a stop to something th at has already begun, and the use of the possessive "its" 
implies that there is a composed panel that has begun work relating to the dispute.  
5.225.   Looking beyond Article 12.12, the word "panel" is used throughout the DSU in several 
provisions concerning various  stages of dispute  settlement . For instance, in the context of 
consultations, Article 4.7 contains the word "panel", and it is clear from the context that this must 
refer to a panel that has not yet been established. Article 6.2 sets out the rules for the 
establishment of panels. Since a panel must be established before it can be composed, the word 
"panel" in Article 6.2, which refers to the panel to be established, cannot be a reference to a 
composed panel. At the same time, there are other provisions in t he DSU that, in referring to "the 
panel", are clearly referring to a panel that has been composed. For instance, Article  15.2, which 
provides that the panel shall issue an interim report, can be referring only to a panel that has been 
composed. Accordingly , the word "panel" may refer to an established panel or to a composed 
panel, depending on the context within which it is used in a particular provision of the DSU. In this 
connection, we see merit in the observation made by Indonesia and the United States that, in 
general, the articles of the DSU  proceed sequentially, from the initial phases of the dispute 
settlement process through to its final stages , and that , therefore , the word "panel" in any given 
provision must be interpreted taking into consideratio n the location of the provision within the 
overall sequence and structure of the DSU.387 In this vein, we note that Article  12.12 of the DSU 
relating to the suspension of panel proceedings comes after Article 8 relating to the composition of 
panels.  
5.226.   We have observed above that the text of Article 12.12 envisages that a decision is taken, 
and discretion is exercised by a panel. Similarly, other provisions relating to panel procedures 
contemplate action by the panel. For instance, Article 12.5 stipulates t hat panels should set precise 
deadlines for written submissions by the parties, and Article 13 provides a right for panels to seek 
information and technical advice from any individual or body they deem appropriate. This contrasts 
with other references to " a panel" or "the panel" in provisions relating to earlier stages of a 
dispute, which do not contemplate action by the panel. Article 6.1, for instance, provides that a 
panel shall be established by the DSB if certain conditions are met. However, this provision does 
not refer to any action to be taken by the panel at that point in time. We consider that this, along 
with the fact that Article 12.12 envisages that discretion be exercised, as well as the placement of 
Article 12.12 in the overall structure of th e DSU, suggests that it is a composed panel that is to 
take the decision to suspend panel proceedings.  
5.227.   The European Union argues that the reference to suspension of work "at any time" in 
Article 12.12 suggests that a panel's work could be suspended before panel composition.388 We 
                                                
387 Indonesia's appellee's submission, paras. 3.42 -3.57; United States' third participant's submission, 
para. 56.  
388 European Union's other appellant's submission, para. 41.  WT/DS442/AB/R  
 
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observe, however, that this reference to "at any time" immediately follows the phrase "[t]he panel 
may suspend its work". As we have set out above, this phrase reveals that suspension of a panel's 
work involves a deliberate decision of a panel that has already been composed.  
5.228.   The European Union also invokes what it refers to as the WTO Secretariat's competence to 
exercise "reasonable executive action" on behalf of the panel. According to the European Union, 
the WTO Secretariat could di spose of a request under Article 12.12 on behalf of a panel.389 We 
note that the role of the WTO  Secretariat is set out , primarily,  in Article 27 of the DSU . The 
WTO Secretariat has  the responsibility of assisting panelists, especially on the legal, historic al, and 
procedural aspects of the matters dealt with , and providing secretarial and technical support. 
However, there is no reference in the DSU to what the European Union refers to as "reasonable 
executive action" to be exercised by the WTO Secretariat on behalf of a panel that has not yet 
been composed.  
5.229.   With these considerations in mind, we now turn to review the Panel's analysis in order to 
assess whether the Panel erred in finding that its authority had not lapsed pursuant to 
Article  12.12 of the DSU.  
5.4.4   Whether the Panel erred in finding that its authority had not lapsed pursuant to 
Article 12.12  
5.230.   The European Union requests us to reverse the Panel's finding that the European Union 
had not sufficiently demonstrated that Indonesia had made a "request" in t he sense of the first 
sentence of Article  12.12  of the DSU . The European Union further asks us to reverse the 
consequential findings that the work of the Panel had not been suspended, and that the 
Panel's  authority had not lapsed.390 
5.231.   The European Union alleg es that the Panel applied an incorrect legal standard by relying on 
the Appellate  Body reports in EC – Bananas III (Article  21.5 – Ecuador II) / EC  – Bananas  III 
(Article  21.5 – US) that address the relinquishment of rights granted by the DSU. In the prese nt 
case, Indonesia was not relinquishing a right under the DSU. On the contrary, Indonesia was 
exercising a right specifically afforded to it by Article 12.12 of the DSU. Therefore, the Panel 
should have applied the standard set out in Article  11 of the DS U and undertaken an objective 
assessment of the matter before it, assessing whether Indonesia's  communication, the 
WTO Secretariat's response to it, and the lapse of time, taken together, suggested that Indonesia 
sought to exercise its right under Article  12.12 of the DSU.391 The European Union adds that the 
Panel erred in being overly formalistic and failing to consid er the substance of 
Indonesia's  communication.392 The Panel should have looked past the form to the substance, and 
in particular to the content o f the request, the response to the request, and the ensuing inactivity 
for a period of more than 12 months.393 
5.232.   Indonesia requests us to : (i) uphold the Panel's findings in paragraphs  7.29 and 8.1 .a of 
the Panel Report ; (ii) reject the European Union's claim of error relating to Article 12.12 of the 
DSU; and (iii)  reject the allegation that the Panel failed to make an objective assessment of the 
matter as required under Article 11 of the DSU.394  
5.233.   Indonesia agrees with the Panel' s finding that the work of the Panel was not "suspended" 
within the meaning of Article 12.12 of the DSU. Indonesia explains that the message it sent to the 
WTO Secretariat on 11 July 2013 was not a "request " but a response to an email from the 
WTO Secretar iat seeking to schedule a meeting with the parties in order to discuss 
panel  composition.395 According to Indonesia, the reasons for seeking to delay panel composition 
were the prospect of reaching an amicable solution, as well as the re -opening of the fatty  alcohols 
investigation by the EU authorities following  the issuance of the Interpipe Judgment, which  
                                                
389 European Union's other appellant's submission, para. 61.  
390 European Union's other appellant's submission, para. 79 (referring to Panel Report, para.  7.29).  
391 European Union's other appellant's sub mission, para. 69 (referring to Panel Report, para.  7.22).  
392 European Union's other appellant's submission, para. 75 (referring to Panel Report, para.  7.26.a).  
393 European Union's other appellant's submission, para. 75 (referring to Panel Report, para.  7.26.b). 
394 Indonesia's appellee's submission, para. 3.104.  
395 Indonesia's appellee's submission, para. 3.27.  WT/DS442/AB/R  
 
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addressed issues similar to those in the fatty  alcohols investigation.396 Indonesia also disagrees 
with the European Union's contention , that in the circums tances of the present case, the 
WTO Secretariat acted "in the name of the Panel" when it communicated to the parties that the 
meeting was cancelled.397 
5.234.   The United States agrees with the Panel's finding that its authority had not lapsed. The 
United States sub mits that Indonesia's communication to the WTO Secretariat to suspend a 
meeting to discuss panel composition was not a request to the Panel that it "suspend its work" 
pursuant to Article 12.12.398  
5.235.   We have explained above that a panel's work can be suspended  pursuant to Article 12.12 
only once the panel has been composed. In the present case, the Panel did not address this issue. 
Instead, the Panel posed the question of whether the European Union had established that 
Indonesia's 13 July 2013 email requesting "to suspend the meeting" constituted a request to 
suspend the work of the Panel in the sense of Article  12.12  of the DSU . However, for the reasons 
explained above, any request contained in the communication from Indonesia to the Panel could 
not have trigge red the beginning of the 12 -month period provided for under Article 12.12 because 
no panel had been composed that could have taken a decision on a request for suspension.   
5.236.   In the circumstances of this case, the WTO  Secretariat's response to Indonesia's req uest to 
"suspend" a meeting to discuss panel composition was equally irrelevant.399 Because the Panel had 
not yet been composed, the response sent by the WTO Secretariat could not have constituted any 
decision by the Panel to suspend proceedings pursuant to Article  12.12 of the DSU. In light of 
these considerations, the first of the three findings made by the Panel was not pertinent to the 
question of whether the Panel's authority had lapsed.  We therefore declare moot and of no legal 
effect the Panel's first finding , namely, that "the European Union ha[d] not demonstrated 
sufficiently that the correspondence sent by the Permanent Mission of Indonesia to the 
WTO Secretariat on 11 July 2013 constituted a request to suspend the work of the Panel in the 
sense of D SU Article  12.12."400 Furthermore, as we have explained above, the Panel proceedings 
could not have been suspended at that point,  because the Panel had not yet been composed. For 
this reason, the Panel did not err in making  its second and third findings, namely , that the Panel's 
work had not been suspended and that i ts authority had not lapsed.401  
5.237.   This brings us to the additional claim of error raised by the European Union with respect to 
the Panel's analysis under Article 12 .12 of the DSU . The European Union alleges that the Panel 
failed to make an objective assessment of the matter as required by Article 11 of the DSU for 
two reasons. First,  the Panel erred by failing to attribute the proper weight to the 
WTO Secretariat's r esponse to Indonesia's communication of 11 July 2013. The European Union 
asserts that omitting from consideration a central element of the evidence is inconsistent with the 
Panel's obligation to make an objective assessment of the matter pursuant to Articl e 11 of the 
DSU.402 Second, the European  Union contends that the Panel's references to the European Union 
having "insufficiently demonstrate[ed]" that Indonesia's communication of 11 July 2013 
constituted a request to suspend the work of the Panel are inappo site and legally erroneous, 
demonstrate a lack of objectivity, and are inconsistent with the Panel's obligation to undertake an 
objective assessment of the matter pursuant to Article 11 of the DSU.403 
                                                
396 Indonesia's appellee's submission, para. 3.25  (referring to Interpipe Judgment (Panel 
Exhibit  IDN-49)). 
397 Indonesia's appellee's submission, para.  3.28 (quoting European Union's other appellant's 
submission, paras.  35, 36, 42, 51 and 61).  
398 United States' third participant's submission, para. 60.  
399 Email correspondence of 10 and 11 July 2013 between the WTO Secretariat and the parties  (Panel 
Exhibit  IDN-2), p. 1 . 
400 Panel Report, paras. 7.29.a and 8.1.a.i.  
401 Panel Report, paras. 7.29.b and c, and 8.1.a.ii and iii.  
402 European Union's other appellant's submission, para. 73 (referring to Panel Report, para.  7.25).  
403 European Union's other appellant's submission, para. 74 (referring to Panel Report, paras.  7.27 
and 7.29.a). WT/DS442/AB/R  
 
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5.238.   Indonesia contends that the European Union's claims under  Article 11 of the DSU are not 
sufficiently developed, do not stand by themselves, and should be rejected.404  
5.239.   We observe that the European Union's claims of error under Article 11 of the DSU relate to 
the Panel's analysis of whether the correspondence sent by the Permanent Mission of Indonesia to 
the WTO  Secretariat on 11 July 2013 constituted a request to suspend the work of the Panel in the 
sense of Article  12.12  of the DSU . We have declared the finding of the Panel based on this analysis 
to be moot and of  no legal effect. Accordingly, we find it unnecessary to rule  on the 
European  Union's claim that the Panel acted inconsistently with Article 11 of the DS U in its analysis 
under Article  12.12 of the DSU.  
5.4.5   Conclusion  
5.240.   We have found that only a composed panel c an take the decision to suspend panel 
proceedings. We therefore concluded that the first of the three  findings made by the Panel was not 
pertinent to the question of whether the Panel's authority had lapsed. Having so found, we declare 
moot and of no legal  effect  the Panel's finding, in paragraphs 7.29.a and 8.1.a.i of its Report, that 
the European Union had not demonstrated that the correspondence sent by the Permanent Mission 
of Indonesia to the WTO  Secretariat on 11 July 2013 constituted a request to suspend the work of 
the Panel in the sense of Article  12.12 of the DSU.   
5.241.   We have  also found that , in finding that the Panel's work had not been suspended and that 
its authority  had not lapsed, the Panel did not act inconsistently with Article 12.12 of the DSU . 
Consequently , we uphold  these findings.405  
5.5  The European Union's cla im that the Panel  erred in its treatment of certain 
information as BCI  
5.242.   The European  Union requests us to find that the Panel erroneously treated certain 
information as BCI  and consequently erred by redacting that information from five paragraphs of 
its Report.406 The European  Union challenges the Panel's treatment of this information on the 
grounds that the information was already  in the public domain and that the Panel's 
BCI Procedures, therefore, prevented the Panel from treating that information as BCI.407 
5.243.   Indonesia requests us to reject the European  Union's appeal. According to Indonesia, in 
asserting that certain information was already in the public domain, the European  Union bore the 
burden of demonstrating that the information had been  properly released into the public domain, 
despite it being marked as confidential during the anti -dumping investigation.408 
5.244.   The European  Union's claim on appeal does not challenge a specific finding, conclusion, or 
procedural ruling of the Panel. Instead, the European  Union argues that, with respect to 
five paragraphs of its Report, the Panel acted inconsistently with Articles  10.1, 11, 12.1, and 12.7 
of the DSU, as read together with paragrap hs 1 and 9 of the Panel's BCI Procedures, by 
erroneously treating certain information as BCI. In order to situate the European  Union's appeal in 
its proper context, we set out below a summary of the relevant aspects of the Panel proceedings.  
5.245.   Following cons ultation with the parties, the Panel adopted its Working Procedures and 
BCI Procedures.409 The Panel's BCI procedures were applicable to any BCI submitted in the course 
of the Panel proceedings. Pursuant to paragraph  1 of the Panel's BCI Procedures, BCI was defined 
as any information that had been designated as such by the party submitting the information, and 
that had previously been treated by the EU  authorities, in their anti -dumping investigation, as 
confidential within the meaning of Article  6.5 of the A nti-Dumping  Agreement. However, 
                                                
404 Indonesia's appellee's submission, para. 3.101.  
405 Panel Report, paras. 7.29.b and c, and 8.1.a.ii and iii.  
406 European Union's other appellant's submission, para. 182 (referring to Panel Report, paras. 7.64, 
7.74, 7.80, 7.82, and 7.83 ). 
407 European Union's other appellant's submission, paras. 171 -180 (referring to PT Musim Mas Judgment 
(Panel Exhibit EU -4)).  
408 Indonesia's appellee's submission, par as. 5.15-5.16. 
409 Panel Report, para.  1.7. The BCI  Procedures are contained in Annex A -2 to the Panel Report.  WT/DS442/AB/R  
 
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paragraph  1 of the Panel's BCI procedures explicitly provided that these procedures would not 
apply  to, inter alia, any information that was available in the public domain.  
5.246.   On 29  July 2016, the Panel provided the parties with its interim report, and invited the 
parties to request the revision of precise aspects of the interim report. In its comments at interim 
review, the European  Union requested the Panel to review certain i nformation treated as BCI in the 
interim report. The BCI was identified by being enclosed within double brackets, and this 
bracketed information was to be redacted from the Panel Report. The European  Union asserted 
that much of the bracketed information in  the interim report was already in, or coming into, the 
public domain.410 Of particular relevance, the European  Union suggested the removal of all 
bracketing in paragraphs  7.64, 7.74, 7.80, 7.82, and 7.83. The European  Union identified 
two Panel exhibits411 as examples of documents that were in the public domain and that contained  
some of the information treated by the Panel as BCI and bracketed in the interim report.  
5.247.   In response to the European  Union's comments, Indonesia acknowledged that some of the 
informat ion for which it had sought BCI protection may have been made publicly available. 
However, Indonesia questioned whether the disclosure of that information had been discussed or 
agreed with the investigated producer/exporter.412 At the same time, Indonesia ag reed with the 
European  Union that the readability of the Panel Report ought not to be compromised any more 
than necessary, and provided some suggestions on how to reduce the amount of redacted 
information in the Report.413 
On 23  September  2016, the Panel iss ued its final report to the parties. Overall, the Panel 5.248.   
significantly reduced the extent of the bracketed information in its final report as compared to the 
interim report. In particular, the Panel reduced the extent of the bracketing of information in 
paragraphs  7.64 and 7.83. The Panel also deleted part of the bracketed information in 
paragraph  7.82. However, the Panel maintained the bracketing in paragraphs  7.74 and 7.80.  
5.249.   In its cover letter forwarding its final report to the parties, the Panel confirmed  that it had 
taken into account the comments of the parties in relation to the protection of BCI. The Panel 
indicated that, "in line with the [Panel's BCI Procedures], only information identified by the Panel 
as not in the public domain was treated as conf idential in the Final  Report and its annexes."414 
Pursuant to paragraph  9 of the Panel's BCI Procedures, the Panel invited the parties to request any 
amendments to the final report, with specific respect to the Panel's treatment of certain 
information as BCI .415 Neither of the parties submitted a request for amendment of the final report 
in response to this invitation. On 16  December  2016, the Panel Report was circulated to all 
WTO Members. This Report redacted the information that the Panel had treated as BCI and 
bracketed in its final report to the parties.  
5.250.   On appeal, the European  Union contests the Panel's redacting of certain information from 
five paragraphs of its Report: paragraphs  7.64, 7.74, 7.80, 7.82, and 7.83. However, the 
contested redactions in these five  paragraphs relate to only three pieces of information.416 The 
information subject of the European Union's claim is company -specific. It concerns details of the 
relationship between PT  Musim Mas and ICOF -S, and of the responsibilities and risks that IC OF-S 
undertook on behalf of PT  Musim Mas. Moreover, the five paragraphs containing the information at 
issue form part of the Panel's analysis addressing Indonesia's claim under Article  2.4 of the 
Anti-Dumping  Agreement. We recall that , in section  5.1  above, we have addressed Indonesia's 
appeal of the issues of law and the legal interpretations underpinning the Panel's findings and 
conclusions under A rticle 2.4. In disposing of Indonesia's claim of error, we did not find it 
                                                
410 European  Union's comments on the interim report.  
411 European Union's comments on the interim report (referring to Final Determination (Panel 
Exhib it IDN-4); PT Musim Mas Judgment (Panel Exhibit  EU-4)).  
412 Indonesia's comments on the European  Union's comments on the interim report, para.  3.2. 
413 Indonesia's comments on the European  Union's comments on the interim report, paras.  3.3-3.10. 
414 Letter dated 23  September  2016 from the Chairman of the Panel to Indonesia and the 
European  Union.  
415 Letter dated 23  September  2016 from the Chairman of the Panel to Indonesia and the 
European  Union.  
416 This is because, while the challenged references in p aragraphs  7.74 and 7.83 are distinct, the 
sentence that first appears in paragraph  7.64 is reproduced with only slight modifications in paragraphs  7.80 
and 7.82 of the Panel Report.  WT/DS442/AB/R  
 
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necessary to refer to any of the information subject of the European  Union's claim. Hence, we are 
not convinced that examining the European  Union's claim on appeal will facilitate f urther the 
achievement of a satisfactory settlement of this dispute.  
5.251.   Furthermore, as mentioned in section  5.3  above, the anti -dumping measure at iss ue in 
this dispute expired on 12  November 2016.417  
5.252.   In light of the Panel's consideration of the appropriate extent of BCI protection based upon 
the parties' interim review comments, the company -specific nature of the information, as well as 
the expiry of th e measure at issue, an examination of whether the Panel should have included  the 
information in question in the circulated version of its Report is not necessary to secure a positive 
solution to this dispute. For these reasons, we find it unnecessary to rule on whether the Panel 
erroneously designated certain information as BCI and consequently erred by redacting that 
information from five paragraphs of the Panel Report.  
6  FINDINGS AND CONCLUSIONS  
6.1.  For the reasons  set out in this Report, the Appellate  Body makes the following findings and 
conclusions.  
Article  2.4 of the Anti -Dumping  Agreement  
6.2.  The focus of Article  2.4 of the Anti -Dumping  Agreement is not merely on a comparison 
between the normal value and the export price, but predominantly on the means to ens ure the 
fairness of that comparison. To this end, investigating authorities are required to make due 
allowance for differences affecting price comparability. There are no differences affecting price 
comparability that are precluded, as such, from being the  object of an allowance. Instead, the 
need to make due allowances must be assessed in light of the specific circumstances of each case. 
The Panel's articulation of the legal standard under Article  2.4 is consonant with our understanding 
of this provision. The existence of a close relationship between transacting companies would be 
pertinent to the extent that it affects the relevant transactions in such a way as to affect the 
comparability of the export price and the normal value. Thus, the Panel did not er r in rejecting 
Indonesia's argument that the existence of what Indonesia denotes as a "single economic entity" is 
dispositive of whether a given mark -up qualifies as a difference which affects price comparability 
under Article  2.4. 
a. Accordingly, we find that Indonesia has not demonstrated that the Panel erred in its 
interpretation of Article  2.4 of the Anti -Dumping  Agreement.  
6.3.  With respect to Indonesia's claim that the Panel erred in its application of Article  2.4 to the 
facts of this case, we consider that t he Panel's review of the EU  authorities' evaluation was 
properly focused on whether that evaluation was consistent with Article  2.4 of the 
Anti-Dumping  Agreement. The Panel did not err in finding that the EU  authorities had a sufficient 
evidentiary basis f or establishing that the mark -up paid by PT  Musim Mas to ICOF -S in connection 
with export sales to the European  Union was a difference affecting price comparability under 
Article  2.4. Moreover, contrary to Indonesia's argument, the Panel's reasoning does n ot imply that, 
when confronted with transactions between closely affiliated parties, investigating authorit ies may 
replace the expenses actually incurred with the expenses that would have been incurred had the 
producing entity obtained the service from an independent provider.  
a. Accordingly, we find that Indonesia has not demonstrated that the Panel erred in its 
application of Article  2.4 of the Anti -Dumping  Agreement to the facts of this case.  
6.4.  We also find that Indonesia has not demonstrated that the Panel a cted inconsistently with 
Article  17.6(i) of the Anti -Dumping  Agreement or Article  11 of the DSU in its analysis of 
Indonesia's claim under Article  2.4 of the Anti -Dumping  Agreement.  
                                                
417 European Commission, Notice of the expiry of certain anti -dumping measur es, Official Journal of the 
European  Union , C Series, No.  418 (12  November 2016), p.  3. WT/DS442/AB/R  
 
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a. Consequently, we uphold  the Panel's finding, in paragraphs  7.160 and 8.1.b .i of the 
Panel Report, that Indonesia has not demonstrate d that the EU  authorities acted 
inconsistently with Article  2.4 of the Anti -Dumping Agreement  by treating the mark -up 
paid by PT  Musim Mas to ICOF -S as a difference affecting price comparability, an d 
therefore making a downward adjustment to the export price.  
Article  6.7 of the Anti -Dumping  Agreement  
6.5.  On-the-spot investigations are one mechanism that investigating authorit ies may employ in 
satisfying their duty, under Article 6.6 of the Anti -Dumping Agreement, to ensure the accuracy of 
information supplied by interested parties. When such on -the-spot investigations are conducted, 
Article 6.7 requires that the firms subject to such visits be provided with th e "results", or 
outcomes, of this verification process . The scope of on -the-spot investigations and the ensuing 
"results" to be communicated to the investigated firms vary from case  to case, and are informed 
by the integral parts of the process of the on-the-spot investigations, which include the questions 
posed by the investigating authorities, the responses thereto, the scope of the advance notice, and 
the collection of any additional evidence during the on -the-spot investigation s. In addition, the  
disclosure of the "results" of the on -the-spot investigation s must enable the firm s to which they 
are communicated to discern the information that the authorities considered to have been 
successfully verified, as well as the information that could not be ver ified, and to be informed of 
the results in sufficient detail and in a timely manner so as to be placed in a position to defend 
effectively their interests in the remaining stages of the anti -dumping investigation. We therefore 
find that the Panel did not err in its interpretation or application of Article  6.7 in determining the 
scope of the on-the-spot investigations and the ensuing "results" to be communicated to the 
investigated firms.  
a. Consequently, we uphold  the Panel's finding, in paragraphs  7.236 and 8.1.d of the Panel 
Report, that the EU authorities failed to make available or disclose the "results of any 
such investigations" to PT Musim Mas, and therefore acted inconsistently with Article  6.7 
of the Anti -Dumping Agreement.  
Article  3 of the DSU  
6.6.  We find that, in appealing the Panel Report notwithstanding the expiry of the measure at 
issue, Indonesia did not act inconsistently with Article 3 of the DSU. We therefore reject  the 
European Union's requests to find it unnecessary to rule on the matter raised in Indonesia's appeal 
or to declare moot and of no legal effect all of the findings and conclusions made by the Panel.  
Article  19 of the DSU  
6.7.  We have found that , as a general matter, it is within a panel's discretion to decide how to 
take into account subse quent modifications to, or the repeal of, the measure at issue. In the 
absence of any finding or acknowledgement by the Panel that the measure at issue is no longer in 
force, there was no basis for the Panel to have departed from the requirement in Article  19.1 of 
the DSU to make a recommendation after having found that measure to be inconsistent with the 
covered agreements.  
a. Accordingly, we find that the Panel did not err or act inconsistently with Article 19.1 or 
Article 11 of the DSU  in making a recommendation, at paragraph  8.3 of the Panel 
Report, with respect to the measure at issue.  
Article  12.12 of the DSU  
6.8.  We have found that only a composed panel can take the decision to suspend panel 
proceedings. We therefore concluded that the f irst of the three findings made by the Panel was not 
pertinent to the question of whether the Panel's authority had lapsed.  
a. Having so found, we declare moot and of no legal effect  the Panel's finding, in 
paragraphs  7.29.a and 8.1 .a.i of the Panel Report, that the European  Union had not 
demonstrated that the correspondence sent by the Permanent Mission of Indonesia to WT/DS442/AB/R 
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the WTO Secretariat on 11 July 2013 constituted a request to suspend the work of the 
Panel in the sense of Article 12.12 of the DSU. 
6.9. We have also found that, in concluding that its work had not been suspended and that its 
authority had not lapsed, the Panel did not act inconsistently with Article 12.12 of the DSU. 
Moreover, we have found it unnecessary to address the European Union's claim that the Panel 
failed to undertake an objective assessment of the matter. 
a. Consequently, we uphold the Panel's findings, in paragraphs 7.29.b and c, and B.1.a.ii 
and ili of the Panel Report that the work of the Panel was not suspended and the 
authority for the establishment of the Panel did not lapse. 
The Panel's treatment of certain information as BCI 
6.10. We find it unnecessary to rule on whether the Panel erroneously designated certain 
information as BCl and consequently erred by redacting that information from five paragraphs of 
the Panel Report. 
Recommendation 
6.11. For the reasons set out in this Report, the Panel's recommendation at paragraph B.3 of the 
Panel Report, that the European Union bring its measures into conformity with its obligations 
under the Anti-Dumping Agreement, stands. 
Signed in the original in Geneva this 31st day of July 2017 by: 
�G-� 
Ricardo Ramirez-Hernandez 
Presiding Member 
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im � 
4&t 
Hong Zhao 
Member