WT/DS490/5  
WT/DS496/6  
 
29 September 2017  
(17-5267) Page: 1/2 
  Original: English  
 
 INDONESIA – SAFEGUARD ON CERTAIN  IRON OR STEEL PRODUC TS  
NOTIFICATION OF AN A PPEAL BY INDONESIA  
UNDER ARTICLE 16.4 A ND ARTICLE 17 OF THE  UNDERSTANDING ON RUL ES 
AND PROCEDURES GOVER NING THE SETTLEMENT OF DISPUTES (DSU),  
AND UNDER RULE 20(1)  OF THE WORKING PROCEDURES F OR APPELLATE REVIEW  
The following communication, dated 28 September 2017 , from the delegation of Indonesia, 
is being circulated to Members.  
 
_______________  
 
 
Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures  Governing the 
Settlement of Disputes (DSU) and Rule 20 of the Working Procedures for Appellate Review, 
Indonesia hereby notifies the Dispute Settlement Body of its decision to appeal to the Appellate 
Body certain issues of law and legal interpretation cov ered in the Panel Report entitled 
Indonesia  — Safeguard on Certain Iron or Steel Products  (WT/DS490/R, WT/DS496/R), which was 
circulated on 18 August 2017 (the "Panel Report").  Pursuant to Rules 20(1) and 21(1) of the 
Working Procedures for Appellate Revie w, Indonesia is simultaneously filing this Notice of Appeal 
with the Appellate Body Secretariat.   
 
For the reasons to be further elaborated in its submission to the Appellate Body, Indonesia 
appeals, and requests the Appellate Body to modify or reverse leg al interpretations leading to the 
legal findings and conclusions of the Panel, with respect to the following errors contained in the 
Panel Report:1 
 
1  THE PANEL ERRED IN D ETERMINING THAT REGU LATION NO. 137.1/PMK .011/2014 IS 
INCONSISTENT WITH AR TICLE I:1 OF T HE GATT 1994 BECAUSE  IT IS NOT A SAFEGUAR D 
MEASURE  
Indonesia contends that the Panel erred in finding that suspension of MFN obligation couldn 't be 
the basis of safeguard imposition since it is not necessary to remedy or prevent serious injury to 
the dome stic producers or due to the existence of the General Interpretative Note to Annex 1A of 
the WTO Agreement. This finding is in contradiction with an adopted panel report Dominican 
Republic – Safeguard Measures .2 In addition, this issue is not under the Pan el's term of reference 
and during the course of panel proceeding no party to the dispute has ever challenged that 
Regulation No. 137.1/PMK.011/2014 is not a safeguard measure.3  
 
Since Regulation No. 137.1/PMK.011/2014 is a safeguard measure, the Panel err ed in finding that 
Regulation No. 137.1/PMK.011/2014 is inconsistent with Article I:1 of the GATT 1994. In addition, 
the Panel also erred in concluding that the complainants also make the same claim on the basis of 
the same arguments against the specific d uty as a stand -alone measure. Indonesia requests the 
Appellate Body to reverse the Panel 's conclusions and the Panel 's legal interpretations contained in 
paragraphs 7.11, 7.31, 7.38, 7.40, 7.41, 7.43 and 7.44. In addition, Indonesia requests the 
Appellate Body to reverse the Panel 's findings in paragraph 8.1 of its Report.  
                                                
1 Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for Appellate Review, this Notice of Appeal 
includes an indicative list of  the paragraphs of the Panel Report containing the alleged errors, without prejudice 
to Indonesia's right to refer to other paragraphs of the Panel Report in the context of its appeal.  
2 Panel Report, para. 7.30.  
3 Panel Report, para. 7.10.  WT/DS490/5 • WT/DS496/6  
 
- 2 - 
 
   
2  THE PANEL ERRED TO M AKE A FINDING THAT I S OUTSIDE ITS TERM O F REFERENCE  
Indonesia submits that the panel erred in making findings that is outside its term of reference 
because of two rea sons. First, the Panel has made a finding relating to Article 1 of the Agreement 
on Safeguards and Article XIX:1(a) last sentence relating to the definition of a safeguard measure 
which was not included in its term of reference nor has ever been raised by any party to the 
dispute. Second, the Panel has erred in making a finding of the consistency of 
Regulation  137.1/PMK.011/2014 as a stand -alone measure (not as a safeguard measure) which is 
outside the measure at issue in the Panel 's request. In the Panel r equest, complainants have 
explicitly identified the measure at issue as "the specific duty imposed as a safeguard measure "4  
and a party 's submission during panel proceedings cannot cure a defect in a panel request.5  
 
Based on the foregoing, Indonesia is of the view that the Panel has acted beyond its term of 
reference which is inconsistent with Article 6.2 and Article 7 of the DSU because (1) the Panel 
makes a finding under Article 1 of the Agreement on Safeguards or the last sentence of 
Article  XIX:1(a) of the GATT 1994 when there is no such claim in the panel request; (2) the Panel 
erred in making a finding of the inconsistency of Article I:1 of the GATT 1994 based on a 
stand -alone measure (not as a safeguard measure) which is not identified as such by t he 
complainants in the Panel request. Therefore, Indonesia requests the Appellate Body to reverse 
the Panel 's conclusions and the Panel 's legal interpretations contained in paragraphs 7.10, 7.40, 
7.42-7.44 and 8.1.  
 
3  THE PANEL FAILED TO MAKE AN OBJECTIVE AS SESSMENT UNDER ARTIC LE 11 OF THE 
DSU WITH RESPECT TO FINDING REGULATION 1 37.1/PMK.011/2014 IS  NOT A 
SAFEGUARDS MEASURE  
Indonesia is of the view that the Panel failed to conduct an objective assessment by self -initiating 
an examination of an undisputed issu e beyond its term of reference which departed from a well 
established case law. The Panel could not invoked Article 11 of the DSU to justify this approach. 
Several case laws referred to by the Panel as legal basis have different circumstances and facts. Al l 
prior WTO cases involving safeguard measures never started an examination of claims of 
inconsistency under any provision of the Agreement on Safeguards by first examining whether the 
measure at issue is in fact a safeguard measure within the meaning of A rticle 1 of the Agreement 
on Safeguards if not disputed by any party.  In fact the Panel has acknowledged that both parties 
have never challenged and have concurring positions that Regulation 137.1/PMK.011/2014 is a 
safeguard measure.  
 
In addition, the Pan el raised this issue whether the measure at issue is a safeguard measure 
within the meaning of Article 1 of the Agreement on Safeguards at the later stage of Panel 
proceeding which is on the second substantive meeting.6  
 
Therefore, Indonesia requests the Appellate Body to reverse the Panel 's conclusions and the 
Panel 's legal interpretations contained in paragraphs 7.10 and 7.40, 7.43 and 8.1.  
 
In addition, Indonesia notes that the above grounds of appeal are without prejudice to the 
arguments developed in Indonesia Appellant's Submission.  
 
__________  
                                                
4 Request for Establishment of a panel by Viet Nam, WT/DS496/3, 18 September 2015; and Request for 
Establishment of a panel by TKPM, WT/DS490/2, 21 August 2015 . 
5 Appellate Body Report, EC and Certain Member States – Large Civil Aircraft , para. 642.  
6 See Second Set of P anel Questions.