WT/DS477/AB/R  
WT/DS478/AB/R  
 
9 November 2017  
(17-6051) Page: 1/44 
    
 
INDONESIA – IMPORTATION OF HORTI CULTURAL PRODUCTS,  
ANIMALS AND ANIMAL P RODUCTS  
AB-2017-2 
Report of the Appellate Body  
 WT/DS477/AB/R • WT/DS478/AB/R  
 
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  Table of Contents  
 
1   INTRODUCTION  ................................ ................................ ................................ ..........  7 
2   ARGUMENTS OF THE PAR TICIPANTS  ................................ ................................ .........  13 
3   ARGUMENTS OF THE THI RD PARTICIPANTS  ................................ ..............................  13 
4   ISSUES RAISED IN THI S APPEAL  ................................ ................................ ..............  13 
5   ANALYSIS OF THE APPE LLATE BODY  ................................ ................................ .........  14 
5.1   The Panel's decision to commence its legal analysis with the claims under 
Article  XI:1 of the GATT 1994  ................................ ................................ .............................. 14 
5.1.1    Whether the Panel erred in assessing the claims regarding the measures at issue 
under Article XI:1 of the GATT 1994, rather than Article 4.2 of the Ag reement on 
Agriculture  ................................ ................................ ................................ ........................ 15 
 Whether a mandatory sequence of analysis exists between Article XI:1 of the 5.1.2   
GATT 1994 and Articl e 4.2 of the Agreement on Agriculture  ................................ .................... 18 
 Whether the Panel failed to make an objective assessment of the applicability of  5.1.3   
Article 4.2 of the Agreement on Agriculture  ................................ ................................ ........... 20 
 Conclusions  ................................ ................................ ................................ ............. 22 5.1.4   
5.2   Whether the Panel erred in determining that Indonesia bears the burden of proof 
under the second part of footnote 1 to Article  4.2 of the Agreement on A griculture  .................... 22 
5.2.1    Whether findings in respect of the burden of proof under the second part of 
footnote 1 to Article 4.2 of the  Agreement on Agriculture are necessary  ................................ ...23 
 Whether the Panel erred in allocating to Indonesia the burden of proof under t he 5.2.2   
second part of footnote 1 to Article 4.2 of the Agreement on Agriculture  ................................ ...23 
5.2.3    Whether the Panel failed to make an objective assessment of which party bears 
the burden of proof under the second part of footnote 1 to Article 4.2 of the Agreement 
on Agriculture  ................................ ................................ ................................ .................... 27 
5.2.4    Conclusions  ................................ ................................ ................................ ............. 29 
5.3   Indonesia's alternative claim that the Panel erred in finding that Article XI:2(c)  of 
the GATT 1994 has been rendered "inoperative" by Article 4.2 of the Agreement on 
Agriculture  ................................ ................................ ................................ ........................ 29 
5.3.1    Whether the Appellate Body should decline to rule on Indonesia's alternative claim 
on appeal  ................................ ................................ ................................ .......................... 30 
5.3.2    Whether the Panel erred in finding that Article XI:2(c) of the GATT 1994 has been 
rendered "inoperative" with respect to agricultural measures  ................................ ................... 30 
5.3.3    Conclusions  ................................ ................................ ................................ ............. 35 
5.4   Indonesia's claim under Article XX of the GATT 1994  ................................ ...................... 36 
5.4.1    The Panel's conclusions and findings  ................................ ................................ .......... 36 
5.4.2    The order of analysis under Article XX of the GATT 1994  ................................ .............. 37 
5.4.3    Conclusions  ................................ ................................ ................................ ............. 41 
6   FINDINGS AND CONCLUS IONS  ................................ ................................ ..................  41 
6.1   The Panel's decision to commence i ts legal analysis with the claims under 
Article  XI:1 of the GATT 1994  ................................ ................................ .............................. 41 
6.2   Whether the Panel erred in determining that Indonesia bears the burden of proof 
under the second part of footnote 1 to Article  4.2 of the Agreement on A griculture  .................... 42 WT/DS477/AB/R • WT/DS478/AB/R  
 
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6.3   Indonesia's alternative claim that the Panel erred in finding that Article XI:2(c) of 
the GATT 1994 has been r endered "inoperative" by Article 4.2 of the Agreement on 
Agriculture  ................................ ................................ ................................ ........................ 43 
6.4   Indonesia's claim under Article XX of the GATT 1994  ................................ ...................... 43 
6.5   Recommendation  ................................ ................................ ................................ ........ 44 
  WT/DS477/AB/R • WT/DS478/AB/R  
 
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  ABBREVIATIONS USED I N THIS REPORT  
Abbreviation  Description  
co-complainants  New Zealand and the United States  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of 
Disputes  
GATT 1994  General Agreement on Tariffs and Trade 1994  
Import Licensing 
Agreement  Agreement on Import Licensing Procedures  
New Zealand's Panel 
Request  Request for the Establishment of a Panel by New Zealand, 
WT/DS477/9  
Panel  Panel in these proceedings  
Panel Report  Panel Report, Indonesia – Importation of Horticultural Products, 
Animals and Animal Products , WT/DS477/R , WT/DS478/R  
SCM Agreement  Agreement on  Subsidies and Countervailing Measures  
SPS Agreement  Agreement on the Application of Sanitary and Phytosanitary Measures  
TBT Agreement  Agreement on Technical Barriers to Trade  
TRIMs Agreement  Agreement on Trade -Related Investment Measures  
United States'  Panel 
Request  Request for the Establishment of a Panel by the United States, 
WT/DS478/9  
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/DS477/AB/R • WT/DS478/AB/R  
 
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CASES CITED IN THIS REPORT  
Short title  Full case title and citation  
Argentina – Import Measures  Appellate Body Reports, Argentina – Measures Affecting the Importation of 
Goods , WT/DS438/AB/R  / WT/DS444/AB/R  / WT/DS445/AB/R , adopted 
26 January 2015  
Australia – Apples  Appellate Body Report, Australia – Measures Affecting the Importation of 
Apples from New Zealand , WT/DS367/AB/R , adopted 17 December 2010, 
DSR 2010:V, p. 2175  
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  
Canada – Autos  Appellate Body Report, Canada – Certain Measures Affecting the Automotive 
Industry , WT/DS139/AB/R , WT/DS142/AB/R , adopted 19 June 2000, 
DSR 2000:VI, p. 2985  
Canada – Renewable Energy / 
Canada – Feed-in Tariff 
Program  Appellate Body Reports, Canada – Certain Measures Affecting the Renewable 
Energy Generation Sector / Canada – Measures Relating to the Feed -in Tariff 
Program , WT/DS412/AB/R  / WT/DS426/AB/R , adopted 24 May 2013, 
DSR 2013:I, p. 7  
Canada – Wheat Exports and 
Grain Imports  Appellate Body Report, Canada – Measures Relating to Exports of Wheat and 
Treatment of Imported Grain , WT/DS276/AB/R , adopted 27 September 
2004, DSR 2004:VI, p. 2739  
Chile – Price Band System  Appellate Body Report, Chile – Price Band System and Safegu ard Measures 
Relating to Certain Agricultural Products , WT/DS207/AB/R , adopted 
23 October 2002, DSR 2002:VIII, p.  3045 (Corr.1, DSR 2006:XII, p. 5473)  
Chile – Price Band System 
(Article 21.5 – Argentina)  Appellate Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products – Recourse to Article 21.5 of the 
DSU by Argentina , WT/DS207/AB/RW , adopted 22 May 2007, DSR 2007:II, 
p. 513  
China – Rare Earths  Appellate Body Reports, China – Measures Related to the Exportation of Rare 
Earths, Tungsten, and Molybdenu m, WT/DS431/AB/R  / WT/DS432/AB/R  / 
WT/DS433/AB/R , adopted 29  August 2014, DSR 2014:III, p. 805  
China – Raw Materials  Appellate Body Reports, China – Measures Related to the Exportation of 
Various Raw Materials , WT/DS394/AB/R  / WT/DS395/AB/R  / 
WT/DS398/AB/R , adopted 22 February 2012, DSR 2012:VII, p. 3295  
Colombia – Textiles  Appellate Body Report, Colombia – Measures Relating to the Importation of 
Textiles, Apparel and Footwear , WT/DS461/AB/R  and Add. 1, adopted 
22 June 2016  
Dominican Republic – Import 
and Sale of Cigarettes  Appellate Body Report, Dominican Republic – Measures Affecting the 
Importation and Internal Sale of Cigarettes , WT/DS302/AB/R , adopted 
19 May 2005, DSR 2005:XV, p. 7367  
EC – Bananas III  Appellate Body Report, European Communities – Regime for the 
Importation, Sale and Distribution of Ba nanas , WT/DS27/AB/R , adopted 
25 September 1997, DSR 1997:II, p. 591  
EC – Bananas III  Panel Reports, European Communities – Regime for the Importation, Sale and 
Distribution of Bananas , WT/DS27/R/ECU (Ecuador)  / WT/DS27/R/GTM, 
WT/DS27/R/HND (Guatemala and Honduras)  / WT/DS27/R/MEX (Mexico)  / 
WT/DS27/R/USA (US), adopted 25  September 1997, as modified by Appellate 
Body Report WT/DS27/AB/R, DSR 1997:II, p.  695 to DSR 1997:III, p.  1085 
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 – Export Subsidies on Sugar  Appellate Body Report, European Communities – Export Subsidies on Sugar , 
WT/DS265/AB/R , WT/DS266/AB/R , WT/DS283/AB/R , adopted 19 May 2005, 
DSR 2005:XIII, p. 6365  
EC – Fasteners (China)  Appellate Body Report, European Communities – 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  
EC – Poultry  Appellate Body Report, European Communities – Measures Affecting the 
Importation of Certain Poultry Products , WT/DS69/AB/R , adopted 23 July 
1998, DSR 1998:V, p. 2031  WT/DS477/AB/R • WT/DS478/AB/R  
 
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  Short title  Full case title and citation  
EC – Sardines  Appel late Body Report, European Communities – Trade Description of 
Sardines , WT/DS231/AB/R , adopted 23 October 2002, DSR  2002:VIII, 
p. 3359 
EC – Seal Products  Appellate Body Reports, European Communities – Measures Prohibiting the 
Importation and Marketing of Seal Products , WT/DS400/AB/R  / 
WT/DS401/AB/R , adopted 18 June 2014, DSR  2014:I, p. 7  
Guatemala – Cement I   Appellate Body Report,  Guatemala – Anti-Dumping Investigation Regarding 
Portland Cement from Mexico , WT/DS60/AB/R, adopted 25 November 1998, 
DSR 1998:IX, p. 3767  
India – Autos  Panel Report, India – Measures Affecting the Automotive Sector , 
WT/DS146/R , WT/DS175/R , and Co rr.1, adopted 5 April 2002, DSR  2002:V, 
p. 1827  
Peru – Agricultural Products  Appellate Body Report, Peru – Additional Duty on Imports of Certain 
Agricultural Products , WT/DS457/AB/R  and Add.1, adopt ed 31 July 2015  
US – Anti-Dumping 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  
US – Clove Cigarettes  Appellate Body Report, United States – Measures Affecting  the Production 
and Sale of Clove Cigarettes , WT/DS406/AB/R , adopted 24 A pril 2012, 
DSR 2012: XI, p. 5751  
US – Gambling  Appellate Body Report, United States – Measures Affecting the Cross -Border 
Supply of Gambling and Betting Services , WT/DS285/AB/R , adopted 20 April 
2005, DSR 2005:XII, p. 5663 (and Corr.1, D SR 2006:XII, p. 5475)  
US – Gasoline  Appellate Body Report, United States – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R , adopted 20 May 1996, DSR 1996:I, 
p. 3 
US – Shrimp  Appellate Body Report, United States – Import Prohibition of Certain Shrimp 
and Shrimp Products , WT/DS58/AB/R , adopted 6 November 1998, 
DSR 1998:VII, p. 2755  
US – Shrimp (A rticle 21.5 – 
Malaysia)  Appellate Body Report, United States – Import Prohibition of Certain Shrimp 
and Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia , 
WT/DS58/AB/RW , adopted 21 November 2001, DSR  2001:XIII, p. 6481  
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:V II, p. 3117 
US – Tuna I I (Mexico)  Appellate Body Report, United States – Measures Concerning the 
Importation, Marketing and Sale of Tuna and Tuna Products , 
WT/DS381/AB/R , adopted 13 June 2012, DSR 2012:IV, p. 1837  
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 – Wool Shirts and Blouses  Appellate Body Report, United States – Measure Affecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R , adopted 23 May 1997, 
and Corr.1, DSR 1997:I, p. 323  
 
 WT/DS477/AB/R • WT/DS478/AB/R  
 
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WORLD TRADE ORGANIZATION  
APPELLATE BODY 
 
 
Indonesia – Importation of Horticultural 
Products, Animals and Animal Products  
 
Indonesia , Appellant  
New Zealand , Appellee  
United States , Appellee  
 
Argentina , Third Participant  
Australia , Third Participant  
Brazil , Third Participant  
Canada , Third Participant  
China , Third Participant  
European Union, Third Participant  
Japan, Third Participant  
Korea, Third Participant  
Norway, Third Participant  
Paraguay, Third Participant  
Singapore, Third Participant  
Separat e Customs Territory of Taiwan,  
Penghu, Kinmen and Matsu, Third Participant  AB-2017-2 
 
Appellate Body Division :  
 
Bhatia , Presiding Member  
Graham , Member  
Ramírez -Hernández , Member  
 
 
 
1  INTRODUCTION  
1.1.  Indonesia  appeals certain issues of law and legal interpr etations developed in the 
Panel  Report,  Indonesia – Importation of Horticultural Products, Animals and Animal Products1 
(Panel Report).  
1.2.  On 18  March  2015, New Zealand2 and the United  States3 (the co -complainants) each 
requested the establishment  of a panel pursuant to Article  6 of the Understanding on Rules and 
Procedures Governing the Settlement of Disputes (DSU) concerning  18 measures imposed by 
Indonesia on the importation of hortic ultural products, animals and animal products.  On 
20 May 2015, pursuant to the requests of the co -complainants, a single Panel was established to 
consider these complaints.4  
                                                
1 WT/DS477/R,  WT/DS478/R, 22 December 2016.  
2 Request for the Establishment of a Panel by New Zealand, WT/DS477/9 (New  Zealand's Panel 
Request).  
3 Request for the Establishment of a Panel by the United States, WT/DS478/9 (United States' Panel 
Request).  
4 Panel Report, para. 1.3 (referring to the Minutes of the DSB Meeting held on 20 May 2015, 
WT/DSB/M/361).  WT/DS477/AB/R • WT/DS478/AB/R  
 
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  1.3.  The 18 measures challenged by the co-complainants comprise : (i) discrete elements  of 
Indonesia' s import licensing regime  for horticultural products (Measures  1 through  8)5; 
(ii) Indonesia's import licensing regime for horticultural products as a whole (Measure  9)6; 
(iii) discrete elements of Indonesia's import licensing regime for animals and animal products 
(Measures  10 through  16)7; (iv)  Indonesia's import licensing regime for animals and animal 
products as a whole (Measure  17)8; and (v)  the requirement whereby importation of horticultural 
products, animals and animal products dep ends upon Indonesia's determination of the sufficiency 
of domestic supply to satisfy domestic demand  (Measure  18).9  
                                                
5 The discrete elements of Indonesia's imp ort licensing regime for horticultural products challenged by 
the co -complainants are set out in the Panel Report as follows:  
- Measure  1 (limited  application windows and validity periods) – a combination of limited application 
windows and six -month validity periods of the import recommendations obtained from the Ministry of 
Agriculture and the import approvals obtained from the Ministry of Trade (para. 2.33. See also 
para. 2.11);  
- Measure  2 (periodic and fixed import terms) – the requirement to  import horticultural products only 
within the terms of the import recommendations and import approvals (para. 2.35);  
- Measure  3 (80% realization requirement) – the requirement that registered importers of fresh 
horticultural products import at least 80% o f the quantity of each type of product specified on their 
import approvals for every six -month validity period (para. 2.37);  
- Measure 4  (harvest period requirement) – the requirement that the importation of horticultural 
products takes place prior to, duri ng, and after the respective domestic harvest seasons within a 
certain time period (para. 2.39);  
- Measure  5 (storage ownership and capacity requirements) – the requirement that importers must own 
their storage facilities with sufficient capacity to hold th e full quantity requested on their import 
application (para. 2.41);  
- Measure  6 (use, sale and distribution requirements for horticultural products) – the requirements that 
limit the use, sale, and distribution of the imported products (para. 2.43);  
- Measur e 7 (reference prices for chillies and fresh shallots for consumption) – the implementation of a 
reference price system by the Ministry of Trade on imports of chillies and fresh shallots for 
consumption (para. 2.45); and  
- Measure  8 (six-month harvest requi rement) – the requirement that all imported fresh horticultural 
products have been harvested less than six months prior to importation (para. 2.48).  
6 Panel Report, para.  2.49. 
7 The discrete elements of Indonesia's import licensing regime for animals and  animal products 
challenged by the co -complainants are set out in the Panel Report as follows:  
- Measure 10  (prohibition of importation of certain animals and animal products, except in emergency 
circumstances) – the prohibition on the importation of certai n bovine meat, offal, carcass, and 
processed products as well as of certain non -bovine and processed products (para. 2.50);  
- Measure  11 (limited application windows and validity periods) – a combination of requirements, 
including the prohibition on importe rs from applying for import recommendations and import 
approvals outside four  one-month periods, the provision that import approvals are valid for only the 
three -month duration of each quarter, and the requirement that importers are only permitted to apply  
for import recommendations and import approvals in the month preceding the start of the relevant 
quarter (para. 2.52);  
- Measure  12 (periodic and fixed import terms) – the requirement to import only animals and animal 
products within the terms of the impor t recommendations and import approvals, the prohibition of 
importing types/categories of carcasses, meat, and/or their processed products other than as 
specified in import approvals and import recommendations, and the prohibition from requesting 
changes to  the elements specified in the import recommendations once they have been issued 
(para.  2.54);  
- Measure 13  (80% realization requirement) – the requirement whereby registered importers must 
import at least 80% of each type of product covered by their import  approvals every year 
(para.  2.56);  
- Measure  14 (use, sale, and distribution of imported bovine meat and offal requirements) – certain 
requirements that limit the use, sale, and distribution of imported animals and animal products, 
including bovine meat an d offal (para. 2.58);  
- Measure  15 (domestic purchase requirement) – the requirement imposed upon importers of large 
ruminant meats to absorb local beef (para. 2.60); and  
- Measure 16  (beef reference price) – the implementation of a reference price system on  imports of 
certain animals and animal products (para. 2.62).  
8 Panel Report, para.  2.64. 
9 Panel Report, para. 2.65.  WT/DS477/AB/R • WT/DS478/AB/R  
 
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1.4.  The Panel enumerated the 18 measure s at issue using the following table10:  
A. IMPORT LICENSING REGI ME FOR HORTICULTURAL  PRODUCTS  
DISCRETE ELEMENTS OF THE REGIME : 
Measure 1  Limited application windows and validity periods  
Measure 2  Periodic and fixed import terms  
Measure 3  80% realization requirement  
Measure 4  Harvest period requirement  
Measure 5  Storage ownership and capacity requirements  
Measure 6  Use, sale and distribution requirements for horticultural products  
Measure 7  Reference prices for chillies and fresh shallots for consumption  
Measure 8  Six-month harvest requirement  
REGIME AS A WHOLE : 
Measure 9  Import licensing regime for horticultural products as a whole  
B. IMPORT LICENSING REGI ME FOR ANIMALS AND A NIMAL PRODUCTS  
DISCRETE ELEMENTS OF THE REGIME : 
Measure 10  Prohibition of importation of certain animals and animal products, except in 
emergency circumstances  
Measure 11  Limited application windows and validity periods  
Measure 12  Periodic and fixed import terms  
Measure 13  80% realization requirement  
Measure 14  Use, sale and distribution of imported bovine meat and offal requirements  
Measure 15  Domestic purchase requirement  
Measure 16  Beef reference price  
REGIME AS A WHOLE : 
Measure 17  Import licensing regime for animals and animal products as a whole  
C. SUFFICIENCY REQUIREME NT 
Measure 18  Sufficiency of domestic production to fulfil domestic demand  
 
1.5.  Additional  factual aspects of this dispute are set forth in greater detail in paragraphs 2.1 
through  2.66 of the Panel Report.  
1.6.  Before the Panel,  New Zealand and the United States claimed  that the 18 measures imposed 
by Indonesia are inconsistent  with Article XI:1  of the General Agreement on Tariffs and Trade 
1994 (GATT 1994 ) and Article 4.2 of the Agree ment on Agriculture . Specifically, they claimed that 
the following measures are inconsistent with these provisions : (i) Indonesia's im port licensing 
regime for horticultural product s, both when viewed as a single  measure and when its components 
are viewed as individual measures ; (ii) Indonesia's import licensing regime for animals and animal 
products, both when viewed as a single measure  and when its components are viewed as 
individual measures ; and (iii)  Indonesia's import restrictions based on the sufficiency of domestic 
production.11 Moreover, the co -complainants claimed that Measures 6, 14, and 15 are inconsistent 
                                                
10 Panel Report, para. 2.32. (emphasis original)  
11 Panel Report, paras. 3.1.a -3.1.c (referring to New Zealand's Panel Request, pp.  1-7; first written 
submission to the Panel, para. 435) and para. 3.3 (referring to United States' Panel Request; first written 
submission to the Panel, para. 395; second written submission to the Panel, para. 242).  WT/DS477/AB/R • WT/DS478/AB/R  
 
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  with Article  III:4 of  the GATT 1994.12 Finally, to the extent that these measures are subject to the 
disciplines of the Agreement on Import Licensing Procedures (Import Licensing Agreement), the 
co-complainants  claimed that Measures  1 and 11  are inconsistent with Article  3.2 of  the Import 
Licensing Agreement13, or, alternatively , with Article  2.2(a) o f that Agreement .14  
1.7.  Indonesia requested the Panel to reject the co-complainants ' claims in their entirety.15 In 
particular, Indonesia argued that the measures at issue are not inconsistent with Article XI:1 of 
the GATT 1994  and Article 4.2 of the Agreement on Agriculture .16 In addition, Indonesia raised 
defences under Article  XX(a),  (b), and (d) of the GATT 1994 with respect to the claims of violation 
under Articles  XI:1 and III: 4 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture.17 
Indonesia also invoked  Article XI:2(c)(ii) of the GATT 1994 as a defence with respect to the claims 
of violation under  Article XI:1 of the GATT 1994 concerning Measures  4, 7, and 16 .18 
1.8.  In the Panel Report, circulated to Members of the World  Trade  Organization (WTO) on 
22 December 2016 , the Panel addressed as a preliminary matter the issue of the order of analysis 
of the co -complainants' claims. The Panel considered that Article  XI:1 of the GATT 1994 is the 
provision that deals specifically with quantitative restrictions, and thus decided to commence its 
examination of the co -complainants' claims with Article  XI:1 of the GATT  1994, rather than under 
Article  4.2 of the Agreement on  Agriculture.19 The Panel added that , if the measures were to be 
justified under Article  XX of the GATT 1994 , it would not need to analyse the claims under 
Article  4.2 of the Agreement on Agriculture. This is because footnote  1 to Article  4.2 of the 
Agreeme nt on Agriculture excludes from the scope of this provision those "measures maintained … 
under other general, non -agriculture -specific provisions of GATT 1994".20 In this context, the Panel 
noted Indonesia's argument that, because the co -complainants had failed to provide evidence that 
the challenged measures are not justified under Article  XX, the "Panel  [could not] , as a matter of 
law, rule in the complainants' favor under Article  4.2".21 The Panel , however , considered  that it 
was for Indonesia, not the co -complainants, to establish the defence under Article  XX of the 
GATT  1994.22  
1.9.  Turning  to its analysis under Article  XI:1 of the GATT 1994 , the Panel  disagreed with 
Indonesia that  Article  XI:2(c)(ii) of the GATT  1994 exclude s Measures  4, 7, and 16 from the scope 
of Article  XI:1. Rather, t he Panel considered  that " Indonesia [could not]  rely upon 
Article  XI:2(c)(ii) of the GATT  1994 to exclude Measures  4, 7 and 16 from the scope of Article  XI:1 
of the GATT 1994 because, with respect to agricultural measures, A rticle XI:2(c) has been 
rendered inoperative by Article 4.2 of the Agreement on Agriculture."23 
                                                
12 Panel Report, paras. 3.1.d -3.1.e (referring to New Zealand's Panel Request, pp. 3 and 5 -6, fns 7, 12, 
and 14; first written submission to the Panel, para. 435) and fn 241 to para. 3.3. See also para.  7.834.  
13 Panel Report, para. 3.1.f (referring to New Zealand's Panel Request, pp. 2 and 4, fns  5 and 8; 
first written submission to the Panel, para. 435) and para. 3.4 (referring to United States' Panel Request, pp.  2 
and 4, fns 5 and  8; first written submission to the Panel, paras. 384 and 394).  
14 Panel Report, para. 3.1.f (referring to New Zealand's response to Panel question No. 5) and fn 241 to 
para. 3.3.  
15 Panel Report, para. 3.6 (referring to Indonesia's first written submission to the Panel, para. 189; 
second written submission to the Panel, para. 278).  
16 Panel Report, paras. 7.69 -7.72, 7.100, 7.119 -7.121, 7.141 -7.143, 7.164 -7.165, 7.186 -7.187, 
7.208 -7.209, 7.232 -7.233, 7.251 -7.255, 7.282 -7.284, 7.307 -7.309, 7.336, 7.361 -7.362, 7.382 -7.383, 7.411 -
7.414, 7.435, 7.458 -7.464, and 7.487. The Panel  observed that most of Indonesia's arguments under 
Article  XI:1 of the GATT 1994 applied mutatis mutandis  to the claims under Article 4.2 of the Agreement on 
Agriculture. (Ibid., para.  7.831)  
17 Panel Report, para. 7.27.  
18 Panel Report, paras. 7.27 and 7.5 8 (referring to Indonesia's second written submission to the Panel, 
paras.  197, 199, and 203).  
19 Panel Report, paras. 7.32 -7.33.  
20 Panel Report, para. 7.33 (quoting fn 1 to Article 4.2 of the Agreement on Agriculture).  
21 Panel Report, para. 7.34 (quotin g Indonesia's second written submission to the Panel, para.  38).  
22 Panel Report, para. 7.34.  
23 Panel Report, para. 7.60.  WT/DS477/AB/R • WT/DS478/AB/R  
 
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1.10.   The Panel made the following findings  with respect to the co -complainants' claims under 
Article  XI:1 of the GATT 1994 : 
a. Measures 1 through 7, 9 , and 11 through 17  are inconsistent with Article XI:1 because, 
by virtue of their design, architecture , and revealing structure, they constitute a 
restriction having a limiting effect on importation24; 
b. Measures 8 and 10 are inconsistent with Article  XI:1 because, by virtue of their design, 
architecture , and revealing structure, they constitute  a prohibition on importation25; and  
c. Measure 18 is inconsistent as such  with Article  XI:1 because, by virtue of its design, 
architecture , and revealing structure, it constitutes a restri ction having a limiting effect 
on importation .26 
1.11.   Having reached these findings under Article XI:1  of the GATT 1994 , the Panel addressed  
Indonesia's defence s under Article  XX of the GATT 1994 and found that : 
a. Indonesia ha d failed to demonstrate that Measures  1, 2, and 3 are justified under 
Article  XX(d) of the GATT 199427; 
b. Indonesia ha d failed to demonstrate that Measure 4 is justified under Article  XX(b) of the 
GATT  199428; 
c. Indonesia ha d failed to demonstrate that Measures 5 and 6 are justified under 
Article  XX(a), (b) , and (d) of the GATT 199429; 
d. Indonesia ha d failed to demonstrate that Measure 7 is justified under Article XX(b) of the 
GATT  199430; 
e. Indonesia ha d failed to demonstrate that Measure 8 is justified under Article XX(b) of the 
GATT  199431; and  
f. Indones ia ha d failed to demonstrate that Measures 9 through  18 are justified under 
Article  XX(a), (b) , or (d) of t he GATT  1994, where appropriate .32  
1.12.   In light of  these findings , the Panel declined to rule on the co -complainants' claims under 
Article  4.2 of the Agr eement on Agriculture because "its findings pertaining to the inconsistency of 
Measures 1 through 18 with Article  XI:1 of the GATT 1994 and the absence of justification under 
Articles  XX(a), (b) or (d) of the GATT 1994 ensure the effective resolution of th is dispute."33 The 
Panel equally declined to rule on New  Zealand's claims under Article  III:4 of the GATT  1994 and 
the co -complainants' claims under Article  3.2 of the Import Licensing Agreement because its 
earlier findings in respect of the relevant measur es ensure the effective resolution of th is dispute.34 
The Panel further declined to rule on the United  States' claims under Article  III:4 of the 
                                                
24 Panel Report, para. 8.1.b.i. See also paras. 7.92, 7.112, 7.134, 7.156, 7.179, 7.200, 7.227, 7.270, 
7.327, 7.349, 7.375, 7.398, 7. 428, 7.451, and 7.478.  
25 Panel Report, para. 8.1.b.ii. See also paras. 7.243 and 7.299.  
26 Panel Report, para. 8.1.b.iii. See also para. 7.501. Having reached this finding, the Panel declined to 
rule on whether Measure 18 is also inconsistent as applied  with Article XI:1 of the GATT  1994.  
27 Panel Report, para. 8.1.c.i. See also paras. 7.586, 7.595, and 7.606.  
28 Panel Report, para. 8.1.c.ii. See also para. 7.636.  
29 Panel Report, para. 8.1.c.iii. See also paras. 7.661, 7.683, 7.693, 7.721, 7.743, and  7.751.  
30 Panel Report, para. 8.1.c.iv. See also para. 7.777.  
31 Panel Report, para. 8.1.c.v. See also para. 7.828.  
32 Panel Report, para. 8.1.c.vi. See also paras. 7.829 -7.830.  
33 Panel Report, para. 8.2. See also para.  7.833.  
34 With respect to New Zealand's claim s under Article III:4 of the GATT 1994, the Panel declined to rule 
because its findings pertaining to the inconsistency of Measures  6, 14, and 15 with Article  XI:1 of the 
GATT  1994 and the absence of justification under Article XX(a), (b), or (d) of the GA TT 1994 ensure the 
effective resolution of this dispute. (Panel Report, para. 8.3) Concerning the co -complainants' claims under 
Article 3.2 of the Import Licensing Agreement, the Panel declined to rule because its findings pertaining to the 
inconsistency o f Measures  1 and 11 with Article  XI:1 of the GATT  1994 ensure the effective resolution of this 
dispute. (Ibid., para. 8.4). See also paras. 7.839 -7.840, 7.845 -7.846, 7.850 -7.851, and 7.870 -7.871.  WT/DS477/AB/R • WT/DS478/AB/R  
 
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  GATT  199435 and the co -complainants' claims under Article  2.2(a) of the Import Licensing 
Agreement because the United  States and the co -complainants , respectively,  "[had] failed to make 
a prima facie  case".36 
1.13.   In accordance with Article  19.1 of the DSU, and having found that Indonesia acted 
inconsistently with its obligations under Article XI:1 of the GATT 1994 with respect to Measures 1 
through 18, the Panel recommended that the D ispute Settlement  Body (D SB) request Indonesia to 
bring its measures into conformity with its obligations under the GATT 1994 .37  
1.14.   On 17 February 2017 , Indonesia 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 Appeal38 and an appellant's 
submission pursuant to Ru le 20 and Rule 21, respectively, of the W orking Procedures for 
Appellate  Review39 (Working Procedures).  
1.15.   On 7 March 2017 , New Zealand and the United States each filed an appellee's submission .40 
On 9 March 2017, Norway notified its intention to appear at the  oral hearing as a 
third participant.41 On 10 March 2017 , Australia, Brazil, Canada,  and the European Union each filed 
a third participant's submission .42 On the same day, Argentina, Japan, Korea, Paraguay, 
Singapore , and the Separat e Customs Territory of Taiwan, Penghu, Kinmen and Matsu  each 
notified its intention to appear at the oral hearing as a third participant .43 Subsequently, China also 
notified its intention to appear at the oral hearing as a third participant.44  
1.16.   On 13 April 2017, the Chair of the A ppellate Body notified the Chair of the DSB that the 
Appellate Body would not be able to circulate its Report in this appeal within the 60 -day period 
pursuant to Article  17.5 of the DSU, or within the 90 -day period pursuant to the same provision.45 
The Chai r of the Appellate Body explained that this was due to a number of factors, including the 
enhanced workload of the Appellate Body  in 2017 , scheduling difficulties arising from appellate 
proceedings running in parallel with an overlap in the composition of the Divisions hearing the 
appeals, the number and complexit y of the issues raised in this and concurrent appellate 
proceedings, together with the demands that these concurrent appeals place on the 
WTO Secretariat's translation services, and a shortage of s taff in the Appellate Body Secretariat. 
On 18 October  2017, the Chair of the Appellate  Body informed the Chair of the DSB that the 
Report in these proceedings would be circulated no later than 9 November 2017 .46 
1.17.   On 30 June 2017, the participants and third participants were informed that, in accordance 
with Rule  15 of the Working Procedures, the Chair of the Appellate  Body had notified the Chair of 
the DSB of the Appellate Body's  decision to authorize Appellate Body Member Mr Ricardo Ramírez -
Hernández to com plete the disposition of this appeal, even though his second term of office was 
due to expire before the completion of the appellate proceedings.  
1.18.   The oral hearing in this appeal was held on  28-29 August 2017 . The participants and 
five third participants (Argentina, Australia, Brazil, Japan, and Norway) made opening statements. 
The participants and five third participants  (Australia, Brazil, Canada, the European Union, and 
                                                
35 The Panel distinguished between New Zealand's and the Unit ed States' claims under Article  III:4 of 
the GATT 1994. In the absence of any argumentation by the United States, the Panel found that the 
United  States had failed to make a prima facie  case with respect to its claims under Article  III:4. (Panel Report, 
paras. 7.834 and  8.5) By contrast, as set out in fn 34 above, with respect to New Zealand's claims under 
Article  III:4, the Panel declined to rule because its findings pertaining to the inconsistency of the measures at 
issue with Article  XI:1 of the GATT  1994 and the absence of justification under Article XX(a), (b), or (d) of the 
GATT  1994 ensure the effective resolution of this dispute. (Ibid., para. 8.3)  
36 Panel Report, para. 8.5. See also paras. 7.834 -7.835 and 7.852 -7.853.  
37 Panel Report, para. 8.7.  
38 WT/DS477/11; WT/DS478/11.   
39 WT/AB/WP/6 , 16 August 2010.  
40 Pursuant to Rule 22 of the Working Procedures.  
41 Pursuant to Rule 24(2) of the Working Procedures.  
42 Pursuant to Rule 24(1) of the Working Procedures.  
43 Pursuant to Rule 24(2) of the Working Procedures.  
44 Pursuant to Rule 24(4) of the Working Procedures.   
45 WT/DS477/12; WT/DS478/12.  
46 WT/DS477/13; WT/DS478/13.  WT/DS477/AB/R • WT/DS478/AB/R  
 
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Japan ) responded to questions posed by the Members of the Appella te Body Division hearing the 
appeal . The participants  and a third participant (Japan) made closing statements.  
2  ARGUMENTS OF THE PAR TICIPANTS  
2.1.  The claims and arguments of the participants are reflected in the executive summaries of 
their written submissions provided to the Appellate  Body.47 The Notice of Appeal, and the 
executive summaries of the participants' claims and arguments are contained in An nexes  A and B 
of the Addendum to this  Report , WT/DS477/AB/R/Add.1 , WT/DS478/AB/R/Add.1.  
3  ARGUMENTS OF THE THI RD PARTICIPANTS  
3.1.  The arguments of the third participants that filed a written submission ( Australia, Brazil, 
Canada,  and the European Union)  are refl ected in the executive summar ies of their written 
submissions provided to the Appellate  Body48, and are contained in Annex  C of the A ddendum to 
this Report , WT/DS477/AB/R/Add.1 , WT/DS478/AB/R/Add.1.  
4  ISSUES RAISED IN THI S APPEAL  
4.1.  The following issues are raised  by Indonesia  in this appeal:  
a. whether the Panel erred in finding that Article XI:1 of the GATT 1994 deals more 
specifically with quantitative restrictions on agricultural products than Article 4.2 of the 
Agreement on Agriculture , and, accordingly , whether the Panel erred in considering the 
co-complainants' claims under Article  XI:1 of the GATT 1994 rather than under 
Article  4.2 of the Agreement on Agriculture ; 
b. whether the Panel erred in determining that Indonesia bears the burden of proof under 
the se cond part of footnote  1 to Article  4.2 of the Agreement  on Agriculture;  
c. whether the Panel failed to make an objective assessment of the matter under Article  11 
of the DSU:  
i. by failing to conduct an objective assessment of the applicability of Article  4.2 of the 
Agreement  on Agriculture; and  
ii. by failing to conduct an objective assessment of which party bears the burden of 
proof under the second part of footnote  1 to Article  4.2 of the 
Agreement  on Agriculture;  
d. in the event that the Appellate Body finds that the Panel did not err in considering the 
co-complainants' claims under  Article  XI:1 of the GATT  1994, rather than under 
Article  4.2 of the Agreement on Agriculture , whether the Panel erred in concluding that 
Article  XI:2(c) of the GATT  1994 has been rendered "inoperative" by Article  4.2 of the 
Agreement  on Agriculture49; and  
e. whether the Panel erred in finding that Indonesia had failed to demonstrate that 
Measures  9 through  17 are justified under Article  XX(a), (b) , or (d) of the GATT 1994 . 
                                                
47 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).  
48 Pursua nt 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).  
49 In its Notice  of Appeal, Indonesia specifies that this claim is made in the alternative, that is, "[i]f the 
Panel were correct that Article XI:1 of the GATT 1994 is the agreement that deals specifically with quantitative 
import restrictions on agricultural products". ( Indonesia's Notice of Appeal, Section IV, p.  2) WT/DS477/AB/R • WT/DS478/AB/R  
 
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  5  ANALYSIS OF THE APPELLATE BODY  
5.1.  We first address Indonesia's claims of error raised on appeal regarding : (i) the Panel's 
decision on the order of analysis between Article XI:1 of the GATT  1994 and Article  4.2 of the 
Agreement on Agriculture; and (ii) the burden of proo f under the second part of footnote 1 to 
Article 4.2 of the Agreement on Agriculture. In so doing, we also address Indonesia's claims that, 
in ruling on these two issues, the Panel committed errors under Article 11 of the DSU. We then 
address the alternati ve claim of error raised by Indonesia with regard to Article  XI:2(c) of the 
GATT  1994. Finally, we examine Indonesia's claim on appeal under Article  XX of the GATT  1994.  
5.1  The Panel's decision to commence its legal analysis with the claims under 
Article  XI:1 of the GATT 1994  
5.2.  We begin by addressing Indonesia's claim of error regarding the Panel's decision to 
commence  its legal analysis with the co -complainants' claims raised under Article  XI:1 of the 
GATT  1994, rather than Article 4.2 of the Agreement on Agric ulture. Indonesia requests us to 
reverse the Panel's  decision on the order of analysis, as well as its findings that the 18  measures 
at issue are inconsistent with Article XI:1 of the GATT  1994.50 In response, New  Zealand and the 
United  States request us to reject Indonesia's appeal that the Panel's order of analysis constituted 
a legal error, and to uphold the relevant findings of the Panel.51 
5.3.  Before the Panel, New  Zealand and the United  States rai sed claims with regard to the 
18 measures at issue under, inter alia , Article  XI:1 of the GATT  1994 and Article  4.2 of the 
Agreement on Agriculture.52 In setting out its order of analysis, the Panel concurred with the panel 
in India – Autos , stating that it  is important to consider first whether a particular order is 
"compelled" by principles of interpretative methodology, "which, if not followed, might constitute 
an error of law".53 The Panel also recalled that, in EC – Bananas III , the Appellate  Body stated  that 
the provision of the agreement that "deals specifically, and in detail" with the measures at issue 
should be analysed first.54 The Panel noted that: (i) all 18 measures at issue in this dispute had 
been challenged under both Article  XI:1 of the GATT 1 994 and Article  4.2 o f the Agreement on 
Agriculture ; and (ii)  New Zealand and the United  States had brought identical claims under either 
provision, namely, that all 18  measures at issue constitute quantitative restrictions. The Panel thus 
considered that the provision that " deals specifically with quantitative restrictions " is Article  XI:1 
because Article  4.2 has a "broader scope" and refers to measures other than quantitative 
restrictions.55 The Panel thus commenced its assessment with Article  XI:1 of the GATT  1994.56 
Having found that all 18 measures are inconsistent with Article  XI:1 and that they are not justified 
under Article XX of the GATT 1994, the Panel then exercised judicial economy with regard to the 
claims under Article  4.2 of the Agreement on Ag riculture.57 
5.4.  In this section, we first address Indonesia's substantive claim on appeal regarding the Panel's 
sequence of analysis before turning to its claim under Article 11 of the DSU.  
                                                
50 Indonesia's appellant's submission, para. 64 (referring to Panel Report, paras. 7.31 -7.33, 7.92, 
7.112, 7.134, 7.156, 7.179, 7.200, 7.227, 7.243, 7.270, 7.299, 7.327, 7.349, 7.375, 7.398, 7.428, 7.451, 
7.478, 7.501, and 8.1.b).  
51 New Zealand's appellee's submission, para. 59; United States' appellee's submission, paras.  18, 
68-69, and 205.  
52 Panel Report, para. 7.27.  
53 Panel Report, para. 7.31 (referring to Panel Report, India – Autos , para. 7.154).  
54 Panel  Report, para. 7.31 (quoting Appellate Body Report, EC – Bananas III , para. 204).  
55 Panel Report, para. 7.32.  
56 Panel Report, para. 7.33.  
57 Panel Report, paras. 7.832 -7.833.  WT/DS477/AB/R • WT/DS478/AB/R  
 
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5.1.1   Whether the Panel erred in assessing the claims regarding the measures at issue 
under Article XI:1 of the GATT 1994, rather than Article 4.2 of the Agreement on 
Agriculture58 
5.5.  On appeal, Indonesia submits that the Panel " erred in determining that the provision which 
dealt specifically with quantitative restrictions was  Article XI:1 of the GATT 1994 and, as a result, 
in assessing the 18 measures at issue under Article XI:1 of the GATT 1994, rather than Article 4.2 
of the Agreement on Agriculture ."59 Indonesia further submits that the Panel "erred by not 
applying Article 2 1.1 of the Agreement on Agriculture to determine that Article 4.2 of that 
Agreement was lex specialis "60, so that Article 4.2 should have been applied "to the exclusion  of" 
Article XI:1.61 For Indonesia, Article 21.1 "does not require a conflict" between the  GATT  1994 and 
the Agreement on Agriculture in order to apply.62 Rather, the term "subject to" in Article  21.1 
means that the Panel should have found that the Agreement on Agr iculture prevails over the 
GATT  1994, because Article  XI:1 and Article 4.2 concern  the same matter, and Article  4.2 contains 
specific provisions dealing specifically with the measures at issue from both a substantive and a 
procedural perspective.63 Indonesia thus contends that Article 21.1 prevents the cumulative 
application of Article X I:1 and Article 4.2, even absent a conflict between these two  provisions.64 
5.6.  In response, New  Zealand and the United  States argue that Article 21.1 of the Agreement on 
Agriculture applies only in the event of conflict between provisions of the Agreement on A griculture 
and provisions of the GATT 1994 or other Multilateral Trade Agreements in Annex 1 A to the 
Marrakesh Agreement Establishing the World Trade Organization ( WTO Agreement ).65 In the 
absence of such conflict between Article XI:1 of the GATT 1994  and A rticle 4.2  of the Agreement 
on Agriculture , the two provisions apply cumulatively66, and the mere fact that one provision is 
"more specific" than the other does not mean that the former excludes the application of the 
latter.67 Furthermore, New  Zealand and t he United  States assert that panels have a "margin of 
discretion" in choosing the sequence of their analysis, the limit of which is not based on specificity, 
but rather on whether the panel's sequence of analysis leads to a " 'flawed ' substantive analysis ".68 
In the present dispute, New  Zealand and the United  States argue that nothing in the Panel's 
decision to start its assessment under Article  XI:1 instead of Article  4.2 affected the substance of 
its analysis of the claims presented to it, and that the sequ ence of analysis was within the Panel's 
                                                
58 In this respect, we note that, while Indonesia's claim on appeal is entitled "Th e Panel Erred in 
Determining that Article XI:1 of the GATT  1994 is More Specific than Article 4.2 of the Agreement on 
Agriculture" in its appellant's submission, its arguments on specificity essentially relate to whether  "the 
Agreement on Agriculture would  apply to the exclusion  of the more general agreements, such as the 
GATT  1994, to the extent that the Agreement on Agriculture contains specific provisions dealing specifically 
with the same matter". (Indonesia's appellant submission, heading II and para. 53 (emphasis original)) 
Indonesia subsequently reiterated at the oral hearing, both in its opening and closing statements and in 
response to questioning, that its first  ground of appeal addresses whether both agreements can apply 
cumulatively to the challe nged measures, or whether by virtue of Article  21.1 of the Agreement on Agriculture, 
Article 4.2 of the Agreement on Agriculture applies to the exclusion of Article XI:1 of the GATT 1994 because 
Article 4.2 contains more specific substantive and procedural  rules.  
59 Indonesia's appellant's submission, para. 39.  
60 Indonesia's appellant's submission, para. 62.  
61 Indonesia's appellant's submission, para. 53. (emphasis original)  
62 Indonesia's appellant's submission, para. 53.  
63 Indonesia's opening statement at  the oral hearing.  
64 Indonesia argued at the oral hearing that, even if the differences between Article XI:1 and Article 4.2 
do not amount to a conflict, the Panel should have applied the specific rules on quantitative import restrictions 
on agricultural goods under Article 4 .2, as required under Article 21.1. (Indonesia's opening statement at the 
oral hearing)  
65 New Zealand's appellee's submission, paras. 22 and 35 -36; United States' appellee's submission, 
para. 44. 
66 New Zealand's appellee's submission, paras. 28 -29; United States' appellee's submission, paras.  41, 
51, and 53.  
67 United States' appellee's submission, para. 53.  
68 New Zealand's appellee's submission, paras. 40 -41 (quoting Appellate Body Report, Canada – Autos, 
para. 151). See also ibid., para.  43; United States'  appellee's submission, paras. 21 and 24.  WT/DS477/AB/R • WT/DS478/AB/R  
 
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  margin of discretion.69 New Zealand and the United States  further argue that Article 4.2 of the 
Agreement on Agriculture is not, in any event, more specific than Article  XI:1 of the GATT  1994.70 
5.7.  We begin by examining t he relationship between Article XI:1 of the GATT 1994 and 
Article  4.2 of the Agreement Agriculture , in light of Article  21.1 of the Agreement on Agriculture. If 
this examination leads us to reject Indonesia's argument that Article 4.2 applies "to the exclusion 
of" Article XI:171, then we will examine whether, nevertheless, Article 4.2 should have been 
considered before Article XI:1, and whether the Panel's failure to do so constitute s an error of law.  
5.8.  Article 21.1 of the Agreement on Agriculture reads:  
The provisions of GATT 1994 and of other Multilateral Trade Agreements in Annex  1A 
to the WTO Agreement shall apply subject to the provisions of this Agreement.  
5.9.  Article 21.1 does not expressly state that the Agreement on Agriculture excludes the 
application of  the GATT  1994 or other Multilateral Trade Agreements in Annex 1A  to the 
WTO Agreement . Although the text of Article 21.1 does not explicitly refer to the concept of 
"conflict" as a condition for applying provisions of the Agreement on Agriculture to the e xclusion of 
provisions of other WTO covered agreements, the Appellate  Body in EC – Export Subsidies on 
Sugar  interpreted Article  21.1 as follows:  
Members explicitly recognized that there may be conflicts between the Agreement on 
Agriculture and the GATT 19 94, and explicitly provided, through Article 21, that the 
Agreement on Agriculture would prevail to the extent of such conflicts. Similarly, the 
General interpretative note to Annex  1A to the WTO Agreement states that, "[i]n the 
event of conflict between a  provision of the [GATT 1994] and a provision of another 
agreement in Annex 1A …, the provision of the other agreement shall prevail to the 
extent of the conflict." The Agreement on Agriculture is contained in Annex 1A to the 
WTO Agreement.72 
5.10.   In that case, the Appellate  Body read Article 21.1 to mean that the provisions of the 
Agreement on Agriculture prevailed over an inconsistent footnote  in Part IV of the 
European  Communities' Schedule CXL, which is an integral part of the GATT 1994.73 This is 
consistent w ith the approach of the Appellate Body in EC – Bananas  III, when it found that "the 
provisions of the GATT  1994 … apply to market access commitments concerning agricultural 
products, except to the extent that the Agreement on Agriculture contains specific provisions 
dealing specifically with the same matter."74 That sentence, in the context of EC – Bananas III , 
describes situations of conflicts between the GATT 1994 and the Agreement on Agriculture. In that 
dispute, the question before the Appellate Body was  "whether the market access concessions for 
agricultural products made by the European Communities pursuant to the Agreement on 
Agriculture prevail over Article XIII of the GATT 1994", pursuant to Article 4.1 and Article 21.1 of 
the Agreement on Agricultur e.75 The Appellate  Body thus assessed whether provisions of the 
Agreement on Agriculture explicitly "permit Members to act inconsistently with Article XIII of the 
GATT 1994".76  
                                                
69 New Zealand's appellee's submission, paras. 44 -45; United States' appellee's submission, paras.  21, 
and 34 -39. 
70 New Zealand's appellee's submission, paras. 47 -53; United States' appellee's submission, 
paras.  62-64. 
71 Indonesia's appellant's submission, para. 53. (emphasis original)  
72 Appellate Body Report, EC – Export Subsidies on Sugar , para. 221. (italics omitted)  
73 Appellate Body Report, EC – Export Subsidies on Sugar , paras. 222 -226. 
74 Appellate Body Report, EC – Bananas III , para. 155. (italics omitted)  
75 Appellate Body Report, EC – Bananas III , para. 153. (italics omitted)  
76 Appellate Body Report, EC – Bananas III , para. 157. In particular, the Appellate Body stated:  
There is nothing in Articles 4.1 or 4.2, or in any other article of the Agreement on Agriculture, 
that deals specifically with the allocation of tariff quotas on agricultural products. If the 
negotiators had intended to permit Members to act inconsistently with Article XIII of the 
GATT  1994, they  would have said so explicitly.  
(Ibid. (italics omitted))  WT/DS477/AB/R • WT/DS478/AB/R  
 
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5.11.   Accordingly, the phrase "except to the extent that the Agreement on Agriculture contains 
specific provisions dealing specifically with the same matter"77 identifies instances where a 
provision of the Agreement on Agriculture conflicts with the GATT  1994 or with other Multilateral 
Trade Agreements in Annex 1A  to the WTO Agreement . In EC – Bananas III , that was not the 
case, and thus, the provisions of the Agreement on Agriculture and the GATT 1994  applied 
cumulatively.78 
5.12.   Indonesia argues that Article 21.1  of the Agreement on Agriculture:  (i) "does not require a 
conflict between the GATT  1994 and … the Agreement on Agriculture" to apply, but (ii) requires 
the Agreement on Agriculture to "apply to the exclusion  of the more general agreements, such as 
the GATT 1994, to the extent that the Agreement on Agriculture contains specific provisions 
dealing specifically with the same matter ."79 Indonesia's interpretation is not consistent with 
Article  21.1, as interpreted by the Appellate Body, according to which the provisions of the 
Agreement on Agriculture prevail in the event of a conflict between provisions of the Agreement on 
Agriculture and provisions of the GATT 1994 or other Multilateral Trade Agreements in Annex 1A  of 
the WTO Agreement .80  
5.13.   In light of these considerations, we assess next whether Article  XI:1 of the GATT 1994 and 
Article  4.2 of the Agreement on Agriculture are in conflict or whether there is another factor 
preventing their cumulative application. In so doing, we focus on whet her the content of and the 
relationship between these two provisions permit their cumulative application in this dispute.  
5.14.   Before the Panel, New  Zealand and the United  States claimed that all 18 measures at issue 
constitute quantitative restrictions that a re inconsistent with Article  4.2 of the Agreement on 
Agriculture and Article  XI:1 of the GATT 1994 , which both discipline quantitative restrictions .81 In 
addition, a ll 18 measures at issue apply to agricultural products82, and the co -complainants' claims 
concern the same matter under either provision, namely, quantitative import restrictions on 
agricultural goods. In its appellant's submission, Indonesia argued that Article  4.2 imposes "a 
more specific obligation" than Article  XI:1, because Members that are f ound to act inconsistently 
with Article  4.2 have to convert their measures into ordinary customs duties, whereas 
inconsistency with Article  XI:1 is remedied through the elimination of the quantitative restriction at 
issue.83  
5.15.   Although Article  4.2 of the Agreement  on Agriculture generally applies to: (i)  a broader 
range of measures; and (ii)  a narrower scope of products than Article  XI:1 of the GATT 1994 ; both 
provisions prohibit Members from maintaining quantitative import restrictions on agricultural 
produc ts.84 A measure constituting a quantitative import restriction on agricultural products would 
therefore be inconsistent with both Article  XI:1 and Article  4.2. Such findings of inconsistency 
would also result in the same implementation obligations under eit her provision, that is, to bring 
the measure into conformity with those provisions. The Appellate Body has suggested previously 
that there is essentially no difference between the obligation in Article XI:1 to eliminate 
                                                
77 Appellate Body Report, EC – Bananas III , para. 155. (italics omitted)  
78 Appellate Body Report, EC – Bananas III , paras. 157 -158. See also Appellate Body Report,  
US –Upland Cotton , paras.  547-550. 
79 Indonesia's appellant's submission, para. 53. (emphasis original) Indonesia further submits that such 
an approach was confirmed by the Appellate  Body in Chile – Price Band System . (Ibid., paras.  52 and 56) We 
note, however, that the Appellate Body in Chile – Price Band System  did not exclude  the application of 
Article  II:1(b) of the GATT  1994 in favour of Article  4.2 of the Agreement on Agriculture. In that dispute, both 
provisions applied cumulatively. (Appellate  Body Report, Chile – Price Band System , para. 190)  
80 Appellate Body Reports, EC – Export Subsidies on Sugar , para. 221; EC – Bananas III , para. 155.  
81 Panel Report, paras. 3.1.a -3.1.c, 3.3, and 7.32.  
82 We recall that the 18 measures at issue concern Indonesia's import licensing regimes for hort icultural 
products and animals  and animal products. (Panel Report, para. 2.32) Indonesia does not dispute that these 
import licensing regimes fall within the scope of Annex 1 to the Agreement on Agriculture. (Indonesia's 
appellant's submission, para. 10)  
83 Indonesia's appellant's submission, para. 59.  
84 Article XI:1 of the GATT  1994, which applies to all types of goods, requires the elimination of 
"prohibitions or restrictions other than duties, taxes or other charges". Article 4.2 of the Agreement on 
Agriculture, which applies only to agricultural products, requires the elimination of "any measures of the kind 
which have been required to be converted into ordinary customs duties", including quantitative import 
restrictions, as footnote 1 thereto provides.  WT/DS477/AB/R • WT/DS478/AB/R  
 
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  quantitative restrictions and the ob ligation in Article 4.2 "not [to] maintain, re sort to, or re vert to" 
measures covered by Article 4.2.85 
5.16.   To the extent that they apply to the claims challenging the 18  measures at issue as 
quantitative restrictions, Article  XI:1 of the GATT  1994 and Article  4.2 of the Agreement on 
Agriculture thus contain the same substantive obligations, namely, the obligation not to maintain 
quantitative import restrictions on agricultural products. Had the Panel decided to commence its 
analysis with Article  4.2 rather than  Article XI:1, it would have, in essence, conducted the same 
analysis to determine whether the 18  measures at issue are "quantitative import restrictions" 
within the meaning of footnote 1 to Article 4.2.86  
5.17.   Furthermore, a measure found to be a quantitative import restriction on agricultural 
products inconsistent with Article XI:1 may potentially be justified under Article XX of the 
GATT  1994, and the second  part of footnote 1 to Article  4.2 of the Agreement on Agriculture also 
incorporates Article  XX of the GATT  1994.87 To the extent that they apply to the claims regarding 
the 18  measures at issue in this dispute, Article  XI:1 of the GATT  1994 and Article  4.2 of the 
Agreement on Agriculture are thus subject to the same exceptions under Article  XX of the 
GATT  1994, and, as we determine further below in our analysis, the same burden of proof applies 
under Article XX, regardless of whether that provision is invoked in relation to Article  XI:1 or 
Article  4.2.88  
5.18.   In light of the above, we consider that Article 4.2 of  the Agreement on Agriculture does not 
apply "to the exclusion  of"89 Article  XI:1 of the GATT 1994 in relation to the claims challenging the 
18 measures at issue as quantitative restrictions. Both provisions contain the same substantive 
obligations in relat ion to these claims and , thus, in these circumstances, they apply cumulatively.90  
Whether a mandatory sequence of analysis exists between Article XI:1 of the 5.1.2   
GATT 1994 and Article 4.2 of the Agreement on Agriculture  
5.19.   We next examine whether, in the circumst ances of this case, there is a mandatory sequence 
of analysis between Article XI:1 of the GATT  1994 and Article 4.2 of the Agreement on Agriculture, 
which, if not followed by the Panel, would amount to an error of law.91 We recall that the Panel 
decided to begin its analysis under Article  XI:1, because it considered that Article XI:1 is more 
specific with respect to quantitative restrictions than Article  4.2, which refers also to "measures 
other than quantitative restrictions".92 
5.20.   Indonesia argues that "the Pa nel erred in determining that the provision which dealt 
specifically with quantitative restrictions was Article XI:1 of the GATT 1994 and, as a result, in 
assessing the 18 measures at issue under Article XI:1 of the GATT 1994, rather than Article 4.2 of 
the Agreement on Agriculture ."93 According to Indonesia, the Panel should "have concluded that 
Article 4.2 applies more specifically to the products at issue, i.e. agricultural products ."94 
                                                
85 In Chile – Price Band System , the Appellate Body stated that the conversion into ordinary customs 
duties of measures within the meaning of Article 4.2 began during the Uruguay Round negotiations, and that, 
after the signing of the WTO  Agreement, "there was no longer an option to replace measures covered by 
Article 4.2 with ordinary customs duties in excess of the levels of previously bound tariff rates." 
(Appellate  Body Report, Chile – Price Band System , para. 206) After the entry into force of the 
WTO Agreement, Members simply have to "refrain from maintaining, reverting to, or resorting to, measures 
prohibited by Article  4.2". ( Ibid.)  
86 The Panel found that each of the 18 measures at issue is inconsistent with Article XI:1 of the 
GATT  1994 because, by v irtue of its design, architecture, and revealing structure, it constitutes either a 
restriction having a limiting effect on importation (Measures 1 through 7, 9, and 11 through 18) or a 
prohibition on importation (Measures 8 and 10). (Panel Report, para. 8 .1.b) 
87 See section 5.2.2  below.  
88 See section 5.2.2  below.  
89 Indonesia's appellant's submission, para. 53. (emphasis original)  
90 See also section 5.2  below.  
91 See Appellate Body Report, Canada – Wheat Export s and Grain Imports , para. 109.  
92 Panel Report, para. 7.32.  
93 Indonesia's appellant's submission, para. 39.  
94 Indonesia's appellant's submission, para. 47. Indonesia further asserts tha t the Panel's reliance on 
Article  21.1 of the Agreement on Agriculture to find that "Article XI:2(c) of the GATT 1994 is no longer 
available with respect to agricultural products" further suggests that Article 4.2 "deals more specifically with 
quantitative  import restrictions than does Article  XI:1". (Indonesia's appellant's submission, para. 58 (referring WT/DS477/AB/R • WT/DS478/AB/R  
 
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New Zealand and the United States respond that the structure of Articl e XI:1 and Article 4.2 show s 
that no mandatory order of analysis is warranted, and that nothing in the Panel's chosen order of 
analysis prevented it from undertaking a logical consideration of the claims presented to it, or 
affected the substance of its an alysis under Article XI:1.95  
5.21.   We have concluded above that Article  4.2 of the Agreement on Agriculture does not apply to 
the exclusion of Article XI:1 of the GATT 1994, and that these two provisions apply cumulatively to 
the measures at issue in this disput e.96 The remaining question before us is whether, in the 
absence of a conflict, the Panel was required to follow a particular sequence in addressing the 
claims raised under Article 4.2 and Article  XI:1. 
5.22.   In the context of addressing the relationship between different provisions of the covered 
agreements, the Appellate Body considered in Canada – Wheat Export s and Grain Imports  that "it 
is the nature of the relationship between two provisions that will determine whether there exists a 
mandatory sequence of ana lysis" and that "[i]n some cases, this relationship is such that a failure 
to structure the analysis in the proper logical sequence will have repercussions for the substance 
of the analysis itself."97 In Canada – Renewable Energy / Canada – Feed-in Tariff P rogram , the 
Appellate  Body also considered that , while "[i]ssues of sequencing may become relevant to a 
logical consideration of claims under different agreements", nothing in Article  III:4 of the 
GATT  1994, Article  2.1 of the Agreement on Trade -Related In vestment Measures 
(TRIMs  Agreement), and Article 3.1(b) of the Agreement on Subsidies and Countervailing 
Measures (SCM  Agreement) "indicate that there is an obligatory sequence of analysis to be 
followed when claims are made" under such provisions.98 The Ap pellate Body further noted that 
"Japan ha[d] not indicated why commencing the analysis with the SCM Agreement could lead to a 
different outcome than commencing with the GATT 1994 and the TRIMs Agreement"99, as the 
panel had done, and concluded that, "[u] ltimately, the decision in this case as to whether to 
commence the analysis with the claims under the SCM  Agreement or those under the GATT  1994 
and the TRIMs  Agreement was within the [p]anel's margin of discretion ."100 The Panel in this 
dispute may have bee n required to follow a particular sequence between Article XI:1 of the 
GATT  1994 and Article  4.2 of the Agreement on Agriculture if, for instance, addressing Article 4.2 
first would have led to a different substantive outcome than commencing the analysis w ith 
Article  XI:1, as the Panel did.101 
5.23.   We have said above that the obligations of Article  XI:1 of the GATT  1994 and Article  4.2 of 
the Agreement on Agriculture are substantively and procedurally the same insofar as they apply to 
the co -complainants'  claims c hallenging the 18  measures at issue.102 Indonesia has not explained 
why starting with an analysis under Article  4.2 would have led to a different substantive outcome. 
As we see it, the analysis that the Panel would have conducted under Article 4.2 as to whet her the 
measures at issue are prohibited quantitative import restrictions is the same as the analysis that 
the Panel conducted under Article  XI:1. Had the Panel commenced its analysis with Article  4.2, it 
would have equally examined whether the measures ar e justified under Article  XX, as provided for 
in the second part of footnote 1 to Article  4.2, and reached the same conclusions as to whether the 
measures are justified under Article  XX.103 Furthermore, had the Panel commenced its analysis 
with Article  4.2 a nd found that the measures at issue are inconsistent with that provision and not 
justified under Article XX of the GATT 1994, it could have equally chosen to exercise judicial 
                                                                                                                                                  
to Panel Report, para. 7.59)) We discuss the specific issues pertaining to Article  XI:2(c) of the GATT 1994 in 
section  5.3  below.  
95 New Zealand's appellee's submission, paras. 42 -45; United States' appellee's submission, 
paras.  34-35. 
96 See also Appellate Body Reports, EC – Export Subsidies on Sugar , para. 221; EC – Bananas III , 
para. 155. 
97 Appellate Body Report, Canada – Wheat Exports and Grain Imports , para. 109.  
98 Appellate Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program , paras. 5.8 
and 5.5, respectively.  
99 Appellate Body Reports, Canada  – Renewable Energy / Canada – Feed-in Tariff Program , para. 5.8.  
100 Appellate Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program , para. 5.8 
(referring to Appellate Body Report, Canada – Wheat Exports and Grain Imports , para. 126).  
101 A particular sequence may also have been required for reasons related to judicial economy, if, for 
example, starting its analysis with Article 4.2, rather than with Article  XI:1, would have allowed the Panel to 
exercise judicial economy under Article  XI:1, while the reverse is not true.  
102 See also section 5.2  below.  
103 As we examine in section 5.2.2  below, we do not consider that a different burden of proof applies 
depending on whether Article XX is invoked in relation to Article XI:1 or Article 4.2.  WT/DS477/AB/R • WT/DS478/AB/R  
 
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  economy with respect to the claims under Article  XI:1. Thus, we do not see how s tarting the 
analysis with Article XI:1 rather than with Article  4.2 could constitute " a failure to structure the 
analysis in the proper logical sequence [that had] repercussions for the substance of the analysis 
itself".104  
5.24.   We turn now to Indonesia's argume nt that the Panel should "have concluded that Article  4.2 
applies more specifically to the products at issue, i.e. agricultural products", and consider the 
relative specificity of Article  XI:1 of the GATT 1994 in relation to Article  4.2 of the Agreement on  
Agriculture.105 We observe that an analysis of the relative specificity of Article XI:1 and Article 4.2 
may lead to different conclusions, depending on the weight given to different criteria, such as the 
product coverage, the types of measures covered, or t he specificity of the obligation contained in 
either provision.106 As we have said above, commencing the analysis with Article XI:1 rather than 
with Article 4.2 had no repercussions for the substance of the analysis, and, to the extent that 
they apply to the  18 measures at issue, Article  XI:1 and Article 4.2 impose the same substantive 
obligation not to maintain quantitative import restrictions on agricultural products. In light of the 
above, reaching a conclusion as to the relative specificity of either Arti cle XI:1 or Article  4.2 would 
not be determinative for resolving this dispute .  
5.25.   Thus, there is no mandatory sequence of analysis between Article 4.2 of the Agreement on 
Agriculture and Article XI:1 of the GATT 1994 in this dispute. For the reasons stated a bove, the 
decision as to whether to commence the analysis with the claims under Article XI:1 or those under 
Article 4.2 was within the Panel's margin of discretion.  
Whether the Panel failed to make an objective assessment of the applicability of 5.1.3   
Article 4.2 of the Agreement on Agriculture  
5.26.    Indonesia claims that the Panel acted inconsistently with Article  11 of the DSU because it 
failed to make an objective assessment of the applicability of Article 4.2 of the Agreement on 
Agriculture.107 Indonesia takes iss ue with the fact that the Panel addressed the claims under 
Article  XI:1 of the GATT 1994 and the defences under Article  XX of the GATT 1994, and then 
exercised judicial economy with respect to whether the measures at issue comply with Article 4.2 
of the Ag reement on Agriculture.108 Indonesia argues that the Panel should have examined the 
co-complainants ' claims under Article  4.2 of the Agreement on Agriculture because it is the more 
specific provision dealing with quantitative import restrictions on agricultu ral products.109 At the 
oral hearing, Indonesia further clarified that, in its view, the Panel acted inconsistently with 
Article  11 of the DSU by deciding the case based on the wrong provision, namely, Article XI:1 of 
the GATT  1994. According to Indonesia, i n so doing, the Panel impaired Indonesia's  due process 
rights.110  
5.27.   New Zealand and the United States argue in response that Indonesia does not provide 
arguments in support of its challenge under Article 11 of the DSU  that are separate and 
independent from the arguments put forward in respect of its substantive claims of legal error. 
                                                
104 Appellate Body Report, Canada – Wheat Exports and Grain Imports , para. 109.  
105 Indonesia's appellant's submission, para. 47.  
106 For instance, the Agreement on Agriculture, which applies only to agricultural products, has a 
narrower product coverage than the GATT 1994. At the same time, the obligation not to maintain, resort to, or 
revert to certain types of measures in Article  4.2 of the Agreement on Agriculture applies to more types of 
measures than Article XI:1 of the GATT 1994, which only addresses quantitative import and export restrictions.  
107 Indonesia submits two claims on appe al under Article 11 of the DSU, namely: (i)  that the Panel failed 
to conduct an objective assessment of the applicability of Article  4.2 of the Agreement on Agriculture; and 
(ii) that the Panel failed to conduct an objective assessment of which party bears  the burden of proof under the 
second part of footnote 1 to Article 4.2. (Indonesia's appellant's submission, paras. 5 and 106) Indonesia 
submits both claims with a single request for us to reverse the Panel's conclusions and legal interpretations 
containe d in paragraphs 7.31 -7.34 and 7.833 of the Panel  Report, and to reverse the Panel's findings in 
paragraphs 7.92, 7.112, 7.134, 7.156, 7.179, 7.200, 7.227, 7.243, 7.270, 7.299, 7.327, 7.349, 7.375, 7.398, 
7.428, 7.451, 7.478, 7.501, 8.1.b, and 8.2 of the Pa nel Report. (Ibid., paras. 106 -107) In this section, we 
address Indonesia's first  claim under Article 11 of the DSU. Indonesia's claim that the Panel failed to conduct 
an objective assessment of which party bears the burden of proof under the second part o f footnote  1 to 
Article  4.2 is addressed in section 5.2.3  below.  
108 Indonesia's appellant's submission, para.  102. 
109 Indonesia's appellant's submission, paras. 101 -104. 
110 Indonesia's opening statement at the oral hearing; response to questioning at the oral hearing.  WT/DS477/AB/R • WT/DS478/AB/R  
 
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According to them, Indonesia therefore fails to meet the legal standard under Article 11 of the 
DSU.111  
5.28.   We recall that, as the Appellate B ody has cautioned on several occasions, a claim that a 
panel has failed to conduct an "objective assessment of the matter before it" under Article 11 of 
the DSU is "a very serious allegation".112 Accordingly, it is incumbent on a participant raising a 
claim under Article  11 to identify specific errors regarding the objectivity of the panel's assessment 
and "to explain why the alleged error meets  the standard of review under that provision".113 
Importantly, a claim under Article  11 must "stand by itself and be s ubstantiated with specific 
arguments, rather than merely being put forth as a subsidiary argument or claim in support of a 
claim of a panel's failure to construe or apply correctly a particular provision of a covered 
agreement."114 
5.29.   We note that , in support o f its claim under Article 11 of the DSU , Indonesia essentially 
reiterates some of the arguments it presented in support of its substantive claim on appeal 
regarding the Panel's decision to commence its examination of the co -complainants' claims with 
Article XI:1 of the GATT  1994. Like for its substantive claim, Indonesia argues that Article  4.2 of 
the Agreement on Agriculture deals more specifically with quantitative import restrictions on 
agricultural products than Article  XI:1 of the GATT 1994.115 Similarly , both under Article 11 of the 
DSU and in support of its substantive claim, Indonesia argues that the Panel's reliance on 
Articles  4.2 and 21.1 of the Agreement on Agriculture to determine that Article  XI:2(c)(ii) of the 
GATT 1994 was rendered "inoperative " demonstrates that Article 4.2 deals more specifically with 
the measures at issue.116 We fail to see arguments made by Indonesia in support of its claim 
under Article  11 of the DSU that are specific, different, or separate from the ones it has submitted 
in support of its substantive claim of error regarding the Panel's decision to commence its 
examination with Article  XI:1 of the GATT  1994 instead of Article  4.2 of the Agreement on 
Agriculture. Indonesia's claim under Article 11 of the DSU thus  falls short o f "stand[ing] by itself 
and be[ing] substantiated with specific arguments" .117 
5.30.   Consequently, we consider that Indonesia has not substantiated its claim under Article 11 of 
the DSU that the Panel failed to make an objective assessment of the applicability of Article 4.2 of 
the Agreement on Agriculture.118 We therefore find that Indonesia has not demonstrated that the 
Panel acted inconsistently with Article 11 of the DSU in this respect.  
                                                
111 New Zealand's appellee's submission, paras. 10 and 101; United States' appellee's submission, 
paras.  71, 78, and 81.  
112 Appellate Body Report, Peru – Agricultural Products , para.  5.66. See also Appellate Body Reports, 
China – Rare Earths , para.  5.227; EC – Poultry , para.  133. 
113 Appellate Body Reports, China – Rare Earths , para. 5.178; EC – Fasteners (China) , para. 442. 
(emphasis original) See also Appellate  Body Reports, US – Steel Safeguards , para.  498;  
Chile – Price Band System (Article  21.5 – Argentina) , para. 238.  
114 Appellate Body Reports, Peru – Agricultural Products , para. 5.66;  US – Anti-Dumping and 
Countervailing Duties (China) , para. 337. See also Appellate  Body Reports, US – Steel Safeguards , para. 498; 
Chile – Price Band System (Article 21.5 – Argentina) , para.  238; Australia – Apples , para. 406;  
China – Rare Earths , para.  5.173.  
115 Indonesia's ap pellant's submission, paras.  63 and 104.  
116 Indonesia's appellant's submission, paras. 58 and 104.  
117 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 337 (referring to 
Appellate Body Reports, US – Steel Safeguards , para. 498; Australia – Apples , para.  406).  
118 As briefly set out above, Indonesia argued at the oral hearing that the Panel impaired Indonesia's 
due process rights by deciding the case based on the wrong provision. According to Indonesia, this 
distinguish es its claim under Article 11 of the DSU from its substantive claims on appeal. (Indonesia's opening 
statement at the oral hearing; response to questioning at the oral hearing ) We note, however, that this due 
process argument was raised in support of Indon esia's challenge under Article 11 of the DSU for the first time 
during the oral hearing, whereas Indonesia raised the same due process concerns in support of its substantive 
claim under Article 4.2 of the Agreement on Agriculture in its appellant's submiss ion. (Indonesia's appellant's 
submission, para. 93) Moreover, this argument rests on the assumption that the Panel erred in not finding that 
Article 4.2 of the Agreement on Agriculture applies to the exclusion of Article XI:1 of the GATT 1994. Above, 
we co ncluded that Article  4.2 of the Agreement on Agriculture does not apply to the exclusion of Article XI:1 of 
the GATT 1994 in this dispute. Therefore, Indonesia's allegation at the oral hearing that the Panel impaired its 
due process rights by applying Arti cle XI:1 instead of Article 4.2 does not alter our conclusion that Indonesia 
has not substantiated its claim under Article  11 of the DSU.  WT/DS477/AB/R • WT/DS478/AB/R  
 
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  Conclusions  5.1.4   
5.31.   In light of the above, we consider that Article 4.2 of the Agree ment on Agriculture does not 
apply "to the exclusion  of"119 Article  XI:1 of the GATT 1994 in relation to the claims challenging the 
18 measures at issue as quantitative restrictions. Both provisions contain the same substantive 
obligations in relation to the se claims120 and, thus, in these circumstances, they apply 
cumulatively. Moreover, there is no mandatory sequence of analysis between Article  4.2 of the 
Agreement on Agriculture and Article  XI:1 of the GATT 1994 in this dispute , and the decision as to 
whethe r to commence the analysis with the claims under Article XI:1 or those under Article 4.2 
was within the Panel's margin of discretion. We also consider that Indonesia has not substantiated 
its claim under Article  11 of the DSU that the Panel failed to make an objective assessment of the 
applicability of Article  4.2 of the Agreement on Agriculture.  
5.32.   We therefore reject  Indonesia's claim that the Panel erred in assessing the claims regarding 
the measures at issue under Article XI:1 of the GATT 1994, rather than  Article 4.2 of the 
Agreement on Agriculture. We also find that Indonesia has not demonstrated that the Panel acted 
inconsistently with Article  11 of the DSU by failing to make an objective assessment of the 
applicability of Article 4.2 of the Agreement on  Agriculture. Consequently, we uphold  the Panel's 
decision, in paragraph 7.33 of the Panel Report, to commence its examination with Article XI:1 of 
the GATT 1994.  
5.2  Whether the Panel erred in determining that Indonesia bears the burden of proof 
under the sec ond part of footnote 1 to Article  4.2 of the Agreement on Agriculture  
5.33.   We now turn to Indonesia's claim of error regarding the burden of proof under the 
second  part of footnote 1 to Article 4.2 of the Agreement on Agriculture. Indonesia submits that 
the Pan el erred in determining that Indonesia bears the burden of proof under the second part of 
footnote 1 to Article 4.2.121 Consequently, Indonesia requests us to reverse the Panel's conclusions 
and legal interpretations contained in paragraphs  7.34 and 7.833 of  the Panel Report. Indonesia 
also requests us to reverse the Panel's finding in paragraph 8.2 of the Panel Report.122 
5.34.   Before the Panel, Indonesia suggested that , because measures maintained under Article XX 
of the GATT 1994 fall outside the scope of Article 4.2 of the Agreement on Agriculture by virtue of 
the second part of footnote 1 to that provision , it is not possible for a complainant to present a 
prima facie  case of violation under Article 4.2 without offering any evidence or argumentation that 
the challenged measure is not justified under Article XX of the GATT 1994.123 In paragraph 7.34 of 
its Report, the Panel rejected Indonesia's argument by stating:  
We not e that, as indicated above, Indonesia argued that, because the co -
complainants have failed to provide evidence that the challenged measures are not 
justified under Article  XX, the "Panel cannot, as a matter of law, rule in the 
complainants' favor under Art icle 4.2". We understand Indonesia to be asking the 
Panel to invert the burden of proof under Article XX of the GATT  1994. As pointed out 
by New Zealand, it is well established in WTO  jurisprudence following the 
Appellate  Body decision in US – Wool Shirts and Blouses  that the burden of identifying 
and establishing affirmative defences under Article  XX rests on the party asserting the 
defence. Thus it is for Indonesia, and not the co -complainants, to establish the 
defence under Article XX of the GATT 1994.124 
 
5.35.   We note that the Panel did not expressly refer to Article 4.2 of the Agreement on Agriculture 
when it stated that "it is for Indonesia, and not the co -complainants, to establish the defence 
under Article XX of the GATT 1994 ."125 However, as the Panel's stat ement was made in the context 
of addressing Indonesia's argument that the co -complainants must establish that the challenged 
                                                
119 Indonesia's appellant's submission, para. 53. (emphasis original)  
120 See also section 5.2  below.  
121 Indonesia's appellant's submission, para. 4.  
122 Indonesia's appellant's submission, para. 95.  
123 Indonesia's second written submission to the Panel, para. 38 (referring to New Zealand 's response to 
Panel question No. 72, para. 127; United States' response to Panel question No. 72, para. 166).  
124 Panel Report, para. 7.34 (referring to Appellate Body Report, US – Wool Shirts and Blouses , p. 16, 
DSR 1997:I,  p. 337 ). (fns omitted)  
125 Panel Report, para. 7.34.  WT/DS477/AB/R • WT/DS478/AB/R  
 
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measures are not justified under Article XX in order to present a prima facie  case of violation 
under Article 4.2, we understand th e above statement as containing an implicit reference to the 
burden of proof under Article XX of the GATT 1994 in the context of Article 4.2 of the Agreement 
on Agriculture.  
5.2.1   Whether findings in respect of the burden of proof under the second part of 
footno te 1 to Article 4.2 of the Agreement on Agriculture are necessary  
5.36.   Before turning to the substance of Indonesia's claim on appeal, we note that New Zealand 
and the United States submit that, if we were to uphold the Panel's findings under Article XI:1 of 
the GATT 1994, we need not make findings with respect to Article 4.2 of the Agreement on 
Agriculture, including in relation to the burden of proof, as such findings would not be necessary to 
resolve the present dispute.126 The United States contends that , if we were  to affirm the Panel's 
findings under Article XI:1, any findings with respect to the burden of proof under Article 4.2 
would not change Indonesia's obligation to implement the Panel's findings and recommendations 
with respect to Article XI:1.127 
5.37.   We bel ieve that we have to consider Indonesia's claim on appeal regarding the allocation of 
the burden of proof because this issue is intertwined with the issue of the order of analysis of the 
claims under Article XI:1 of the GATT 1994 and Article 4.2  of the Agr eement on Agriculture , and 
their dispositions. If there is a difference between Article XI:1 and Article 4.2 in terms of the 
burden of proof with respect to Article  XX of the GATT 1994, we would then be required to assess 
further whether such a difference amounts to a "conflict" within the meaning of Article 21.1 of the 
Agreement on Agriculture128 in order to determine whether the Panel erred in applying Article XI:1, 
and not Article 4.2, to the challenged measures.  In addition, if there is such a difference between 
Article XI:1 and Article 4.2, we would also be required to assess whether starting the analysis with 
Article XI:1 , rather than with Article 4.2 , resulted in a "failure to structure the analysis in the 
proper logical sequence [that had] repercussion s for the substance of the analysis itself".129 In 
view of these considerations, we proceed to address the substance of Indonesia's claim.130 
Whether the Panel erred in allocating to Indonesia the burden of proof under the 5.2.2   
second part of footnote 1 to Article 4.2 of the Agreement on Agriculture  
5.38.   Indonesia claims that the Panel erred in allocating to Indonesia the burden of proof under 
the second part of footnote 1 to Article 4.2 of the Agreement on Agriculture. Indonesia observes 
that, while the first part of f ootnote 1 to Article 4.2 describes "the type of measures  that are 
subject to the obligation to be converted into ordinary customs duties"131, the second part of 
footnote 1 provides that measures maintained under " certain  exceptions  such as 'general, non-
agriculture -specific provisions of GATT 1994 '", including Article XX of the GATT 1994, are not 
inconsistent with Article 4.2.132 Accordingly, in Indonesia's view, a party presenting a claim under 
Article 4.2 is required to establish that the measure " is of the kind that falls within the scope  of 
this provision" by addressing both the first  and second  parts of footnote 1 to Article 4.2.133 
5.39.   New Zealand and the United States respond that the Panel correctly found that the burden 
of proof under Article XX of th e GATT 1994 falls on Indonesia, including in the context of 
footnote  1 to Article 4.2 of the Agreement on Agriculture.134 They argue that it is well established 
in WTO  jurisprudence that Article XX of the GATT 1994 is in the nature of an affirmative defence,  
                                                
126 New Zealand's appellee's submission, para. 90 (referring to Appellate Body Report, US – Wool Shirts 
and Blouses , p. 19, DSR 1997:I, pp. 339 -340); United States' appellee's submission, paras. 112 and 114 -120. 
127 United States' ap pellee's submission, paras. 119.  
128 We have observed in section 5.1  above that Article  21.1 of the Agreement on Agriculture excludes 
the application of the provisio ns of the other Multilateral Trade Agreements in Annex 1A to the 
WTO Agreement, including the GATT  1994, to the extent that those provisions are in conflict  with the 
provisions of the Agreement on Agriculture.  
129 Appellate Body Report, Canada – Wheat Export s and Grain Imports , para. 109.  
130 We note that Indonesia's claim regarding the burden of proof is consistent with Articles 17.6 and 
17.12 of the DSU, which provide that the Appellate Body is to consider the "issues of law covered in the panel 
report and le gal interpretations developed by the panel" that are raised on appeal.  
131 Indonesia's appellant's submission, para. 77. (emphasis original)  
132 Indonesia's appellant's submission, para. 78. (emphasis original)  
133 Indonesia's appellant's submission, para. 84. ( emphasis original) See also para. 82.  
134 New Zealand's appellee's submission, para. 65; United States' appellee's submission, para. 113.  WT/DS477/AB/R • WT/DS478/AB/R  
 
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  with respect to which the respondent bears the burden of proof135, and that there is no basis for 
Indonesia to argue that the nature of Article XX as an affirmative defence is changed in the 
context of Article 4.2 of the Agreement on Agriculture.136 
5.40.   We begin by recalling the text of Article 4.2, including footnote 1, of the Agreement on 
Agriculture. Article 4.2 reads:  
Article 4  
Market Access  
… 
2. Members shall not maintain, resort to, or revert to any measures of the kind 
which have been required to be converted into ordinary customs duties1, except as 
otherwise provided for in Article 5 and Annex 5.  
______________  
1 These measures include quantitative import restrictions, variable import levies, minimum 
import prices, discretionary import licensing, non -tariff measures maintained through state -
trading enterprises, voluntary export restraints, and similar border measures other than ordinary 
customs duties, whether or not the measures are maintained under country -specific derogations 
from the provisions of  GATT 1947, but not measures maintained under balance -of-payments 
provisions or under other general, non -agriculture -specific provisions of GATT 1994 or of the 
other Multilateral Trade Agreements in Annex 1A to the WTO Agreement.  
5.41.   Article 4.2 prohibits Memb ers from maintaining, resorting to, or reverting to "measures of 
the kind which have been required to be converted into ordinary customs duties", subject to 
certain exceptions under Article 5 and Annex 5 to that Agreement. The first part of footnote 1 to 
Article 4.2 contains an "illustrative list"137 of the categories of measures prohibited under 
Article  4.2, which refers  to, inter alia , "quantitative import restrictions". The second part of 
footnote 1 provides that "measures" within the meaning of Article  4.2 do not include measures 
maintained under "balance -of-payments provisions or under other general, non -agriculture -specific 
provisions of GATT 1994 or of the other Multilateral Trade Agreements in Annex 1A to the 
WTO Agreement". Article XX of the GATT 1994  is one of the "other general, non -agriculture -
specific provisions of GATT 1994". As such, a Member is prohibited under Article  4.2 from 
maintaining, resorting to, or reverting to a measure that falls within any  of the categories of 
measures listed in the first part of footnote  1, such as "quantitative import restrictions", provided  
such measure is not maintained under any of the "provisions" mentioned in the second part of 
footnote 1, such as Article XX of the GATT 1994.138 
5.42.   With respect to the burden of proo f under Article XX of the GATT 1994 referred to in the 
second part of footnote 1 to Article 4.2 of the Agreement on Agriculture, we recall the general 
principle that "the burden of proof rests upon the party, whether complaining or defending, who 
asserts the affirmative of a particular claim or defence ."139 We also note that it has been well 
established through WTO jurisprudence that Article  XX of the GATT 1994 is an affirmative defence , 
with respect to which the respondent bears the burden of establishing a  prima facie  case.140 In this 
context, the Appellate Body has stated that Article XX is one of the "exceptions" from obligations 
under certain other provisions of the GATT  1994, rather than a positive rule establishing 
obligations in itself.141 Accordingly, th e question before us is whether the allocation of the burden 
of proof as it applies under Article XX of the GATT 1994 is changed by virtue of the incorporation of 
this provision into Article 4.2 of the Agreement on Agriculture through the reference contain ed in 
the second part of footnote 1 to that provision . 
                                                
135 New Zealand's appellee's submission, para. 73 (referring to Appellate Body Report,  
US – Wool Shirts and Blouses , p. 16, DSR 1997:I, p. 337); United States' appellee's submission, para. 124.  
136 New Zealand's appellee's submission, para. 78; United States' appellee's submission, para. 126.  
137 Appellate Body Report, Chile – Price Band System , para. 187. See also paras. 209 an d 219.  
138 See Appellate Body Report, Chile – Price Band System , para. 221 and fn 196 thereto.  
139 Appellate Body Report, US – Wool Shirts and Blouses , p. 14, DSR  1997:I,  p. 335.  
140 Appellate Body Report, US – Wool Shirts and Blouses , p. 16, DSR  1997:I,  p. 337.  
141 Appellate Body Report, US – Wool Shirts and Blouses , p. 16, DSR  1997:I,  p. 337.  WT/DS477/AB/R • WT/DS478/AB/R  
 
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5.43.   We observe first that Article 4.2 of the Agreement on Agriculture and footnote 1 thereto do 
not contain any express indication that Article XX of the GATT 1994 is no longer an affirmative 
defence when it is applied through the reference in the second part of footnote 1. Nor does 
Article  4.2 or footnote 1 expressly provide that the complainant bringing a claim under this 
provision must establish that the challenged measure is not maintained under Article  XX of the 
GATT 1994 or under any of the other "provisions" referred to in the second part of footnote 1. In 
particular, the phrase "but not" in the second part of footnote 1, read in conjunction with the word 
"include" in the first part of footnote 1, mak es clear that "measures" prohibited under Article 4.2 
do not include  measures maintained under one of the "provisions" mentioned in the second part of 
footnote 1. This phrase, however, is neutral as to the allocation of the burden of proof under these 
"provisions", including under Article XX.  
5.44.   Indonesia argues that , because measures maintained under "general, 
non-agriculture -specific provisions", such as Article XX of the GATT 1994, are not subject to the 
obligation under Article  4.2 of the Agreement on Agri culture, a party presenting a claim under 
Article 4.2 is required to establish that the measure " is of the kind that falls within the scope  of 
this provision"142 by demonstrating "both elements" in footnote 1143, namely , the requirements of 
both the first and second parts of footnote  1. We acknowledge that  "measures" within the meaning 
of Article 4.2 do not include  measures maintained under one of the "provisions" mentioned in the 
second part of footnote 1.  The second part of footnote 1 may thus be seen as rela ting to the scope  
of Article 4.2.  We do not , however, agree that such characterization necessarily gives decisive 
guidance as to the allocation of the burden of proof under the second part of footnote 1. In fact, 
the Appellate Body has cautioned that the characterization of a particular provision as a 
"derogation limiting the scope", such as Articles III:8(a) and XI:2(a) of the GATT 1994, "does not 
pre-determine the question as to which party bears the burden of proof with regard to the 
requirements stipul ated in the provision".144 
5.45.   We also note Indonesia's argument that  Article XX of the GATT 1994 cannot be an 
"exception" in the context of Article 4.2 of the Agreement on Agriculture, because the drafters 
used "special language" such as "exceptions" or "exempt ions" when they intended to import 
exceptions  from the GATT 1994 into the other covered agreements.145 The mere presence or 
absence of words such as "exceptions" or "exemptions", however, is not dispositive of the 
allocation of the burden of proof under a pa rticular provision. The reverse of what Indonesia 
asserts could also be true because , if the drafters of Article 4.2 had intended to modify the nature 
of Article XX of the GATT  1994 as an affirmative defence , they could have used explicit language 
to that effect, instead of using phrases such as "but not" and "general, non -agriculture -specific 
provisions " in the second part of footnote  1.146  
5.46.   In light of the above, we fail to see a textual basis for the proposition that the burden of 
proof under Article XX of  the GATT 1994 is shifted to the complainant by virtue of the incorporation 
of this provision into the second part of footnote 1 to Article 4.2 of the Agreement on Agriculture. 
Rather, given that footnote 1 to Article 4.2 incorporates Article XX by referen ce without modifying 
the nature of this provision as an affirmative defence, it would follow that the burden of proof 
under Article XX remains with the respondent in the context of Article 4.2. This is consistent with 
the general principle that "the burden  of proof rests upon the party, whether complaining or 
defending, who asserts the affirmative  of a particular claim or defence ."147 While the complainant 
challenging a measure under Article 4.2 is required to demonstrate that the measure falls within 
the cat egories of measures prohibited under Article 4.2, it is the respondent who benefits from a 
showing that the measure additionally  satisfies the requirements of Article XX and therefore is not 
prohibited under Article 4.2.  
                                                
142 Indonesia's appellant's submission, para. 84. (emphasis original)  
143 Indonesia's appellant's submission, para. 82. (emphasis omitted)  
144 Appellate Body Reports, Canada – Renewable  Energy / Canada – Feed-in Tariff Program , para.  5.56. 
The Appellate Body further recalled that, "in China – Raw Materials , the Appellate Body distinguished between 
'exceptions' (such as the general exception of Article  XX) and limitations of the scope of an obligation (such as 
Article  XI:2(a))." (Ibid., fn  491 thereto (referring to Appellate Body Reports, China – Raw Materials , 
para. 334))  
145 Indonesia's appellant's submission, para. 86 (referring to Article 3 of the TRIMs Agreement and 
Article  24.7 of the Agreement on Trade Facilitation).  
146 Emphasis added.  
147 Appellate Body Report, US – Wool Shirts and Blouses , p. 14, DSR  1997:I,  p. 335. (emphasis added)  WT/DS477/AB/R • WT/DS478/AB/R  
 
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  5.47.   We recall that , in US – Clove Cigar ettes, the Appellate Body found148 that "the burden of 
proof in respect of a particular provision of the covered agreements cannot  be understood in 
isolation from the overarching logic of that provision, and the function which it is designed to 
serve."149 Indonesia has not explained how and to what extent the reference in the second part of 
footnote 1 to Article 4.2 of the Agreement on Agriculture modifies the overarching logic and 
function of Article XX of the GATT 1994. We recall in this regard that the Appel late Body has stated 
that Article XX "contains provisions designed to permit important state interests … to find 
expression".150 Paragraphs (a) to (j) of Article XX "comprise measures that are recognized as 
exceptions to  substantive obligations  established i n the GATT  1994, because the domestic policies 
embodied in such measures have been recognized as important and legitimate in character".151 
The chapeau  of Article XX, in turn, "embodies the recognition on the part of WTO Members of the 
need to maintain a bal ance of rights and obligations between the right of a Member to invoke one 
or another of the exceptions  of Article XX, specified in paragraphs (a) to (j), on the one hand, and 
the substantive rights of the other Members under the GATT  1994, on the other ha nd".152 In our 
view, the overarching logic and function of Article  XX of striking a balance between Members' 
obligations and rights remain the same in the context of Article 4.2 of the Agreement on 
Agriculture, as it recognizes Members' rights to pursue cert ain legitimate policy objectives as 
juxtaposed to their obligation to liberalize trade by converting certain market access barriers into 
ordinary customs duties.153 
5.48.   Finally, we note that Indonesia suggests that the allocation of the burden of proof under the  
second part of footnote 1 should be informed by certain other provisions of the covered 
agreements, which, according to Indonesia, "convert exceptions under Article XX of the GATT 1994 
into positive obligations, thereby shifting the burden of proof to the  complainant".154 According to 
Indonesia, Articles 2.2 and 2.4 of the Agreement on Technical Barriers to Trade (TBT  Agreement) 
are among such provisions.155 
5.49.   We disagree that Articles 2.2 and 2.4 of the TBT Agreement are relevant to the 
interpretation of the se cond part of footnote 1 to Article 4.2 of the Agreement on Agriculture in 
terms of the burden of proof  under Article XX of the GATT 1994 referred to therein . As an initial 
matter, we do not find a textual basis to characterize Article 2.2156 or Article 2.4157 of 
                                                
148 In the context of examining the allocation of the burden of proof under Article 2.12 of the Ag reement 
on Technical Barriers to Trade (TBT Agreement).  
149 Appellate Body Report, US – Clove Cigarettes , para. 286. (emphasis original)  
150 Appellate Body Report, US – Gasoline , p. 30, DSR 1996:I,  p. 28. 
151 Appellate Body Report, US – Shrimp , para.  121. (empha sis original)  
152 Appellate Body Report, US – Shrimp , para. 156.  
153 In Chile – Price Band System , the Appellate Body noted that the overall objectives of the Agreement 
on Agriculture as stated in the preamble of that Agreement include "the establishment of st rengthened and 
more operationally effective GATT rules and disciplines", and implementing "specific binding commitments" in 
the area of market access. (Appellate Body Report, Chile – Price Band System, para. 196 (quoting Preamble to 
the Agreement on Agricu lture)) The Appellate Body further stated that "Article 4 of the Agreement on 
Agriculture is appropriately viewed as the legal vehicle for requiring the conversion into ordinary customs 
duties of certain market access barriers affecting imports of agricult ural products." (Ibid. , para. 201 (italics 
omitted)) Allocating the burden of proof under the second part of footnote 1 to the complainant would be at 
odds with the above objectives because it would weaken , rather than strengthen , the prohibition of 
quanti tative import restrictions under Article 4.2,  as compared to the prohibition of quantitative restrictions 
under Article XI:1 of the GATT 1994.  
154 Indonesia's appellant's submission, para. 88.  
155 Indonesia's appellant's submission, paras. 88 -89. Indonesia als o refers to Article 5.6 of the 
Agreement on the Application of Sanitary and Phytosanitary Measures (SPS  Agreement) and Article  11.6(b) of 
the Agreement on Trade Facilitation, both of which contain language similar to that of Article 2.2 of the 
TBT Agreemen t. 
156 Article 2.2 of the TBT Agreement provides:  
Members shall ensure that technical regulations are not prepared, adopted or applied with a view 
to or with the effect of creating unnecessary obstacles to international trade. For this purpose, 
technical reg ulations shall not be more trade -restrictive than necessary to fulfil a legitimate 
objective, taking account of the risks non -fulfilment would create. Such legitimate objectives are, 
inter alia : national security requirements; the prevention of deceptive p ractices; protection of 
human health or safety, animal or plant life or health, or the environment. In assessing such 
risks, relevant elements of consideration are, inter alia : available scientific and technical 
information, related processing technology o r intended end -uses of products.  
157 Article 2.4 of the TBT Agreement provides:  
Where technical regulations are required and relevant international standards exist or their 
completion is imminent, Members shall use them, or the relevant parts of them, as a b asis for WT/DS477/AB/R • WT/DS478/AB/R  
 
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the TBT Agreement as "convert[ing] exceptions under Article XX of the GATT 1994 into positive 
obligations"158, as neither of these provisions contains a specific reference to Article XX. In 
addition, although Articles 2.2 and 2.4 both refer to certain "legitimate objectives"159 that are 
similar to those mentioned in the paragraphs  of Article  XX, the mere reference to such "legitimate 
objectives" in Article 2.2 or Article 2.4 does not provide relevant context for interpreting Article 4.2 
of the Agreement o n Agriculture in terms of the burden of proof under Article XX referred to in the 
second part of footnote  1 thereto. Specifically, with re spect to Article 2.2 of the TBT  Agreement, 
the Appellate  Body has found that "Article 2.2 does not prohibit measures t hat have any 
trade -restrictive effect", but only "restrictions on international trade that exceed  what is necessary 
to achieve the degree of contribution that a technical regulation makes to the achievement of a 
legitimate objective".160 As such, Article 2.2  is a positive rule establishing an obligation in itself. 
This is quite different from the function of the second part of footnote 1 to Article 4.2 of the 
Agreement on Agriculture, which is to exempt  certain measures from the prohibition of market 
access b arriers set out in the first part of footnote  1. 
5.50.   Further, with respect to Article 2.4 of the TBT Agreement, we recall that , in EC – Sardines,  
the Appellate Body pointed to the "conceptual similarities" between, on the one hand, Articles 3.1 
and 3.3 of the Agreement on the Application of Sanitary and Phytosanitary Measures 
(SPS Agreement) and, on the other hand, the first  and second parts of Article 2.4 of the 
TBT Agreement.161 As the Appellate Body had found in EC – Hormones , the right of a Member to 
establis h its own level of sanitary protection under Article 3.3 of the SPS Agreement is an 
"autonomous right", and "a Member may decide to set for itself a level of protection different from 
that implicit in the international standard, and to implement or embody that level of protection in a 
measure not 'based on' the international standard."162 Accordingly, and given the "conceptual 
similarities" between Article 3.3 of the SPS Agreement and the second part of Article  2.4 of the 
TBT Agreement, the second part of Art icle 2.4 recognizes an "autonomous right" of a Member to 
set its own level of protection, rather than setting forth an exception  or exemption  from a (non -
existent) general obligation to use relevant international standards. Thus, the second  part of 
Article  2.4 of the TBT Agreement is dissimilar to the second part of footnote 1 to Article 4.2 of the 
Agreement on Agriculture.  
5.51.   In sum, Article 4.2 of the Agreement on Agriculture and footnote 1 thereto, read in their 
relevant context, do not suggest that the nature of Article XX of the GATT 1994 as an affirmative 
defence  is modified by virtue of the incorporation of this provision into Article 4.2 by the reference 
contained in the second part of footnote 1. We therefor e reject  Indonesia's claim that the Panel 
erred in allocating to Indonesia the burden of proof under Article XX of the GATT 1994 as 
referenced in the second part of footnote 1 to Article 4.2 of the Agreement on Agriculture.  
5.2.3   Whether the Panel failed to mak e an objective assessment of which party bears 
the burden of proof under the second part of footnote 1 to Article 4.2 of the Agreement 
on Agriculture  
5.52.   Having rejected Indonesia's claim under Article 4.2 of the Agreement on Agriculture, we 
note that Indonesi a brings a separate but related claim that the Panel acted inconsistently with 
Article  11 of the DSU because it failed to make "an objective assessment of which party bears the 
burden of proof with respect to the second element  of footnote 1 to Article 4.2  of the Agreement 
on Agriculture. "163 Indonesia argued at the oral hearing that, in allocating to Indonesia the burden 
of proof under Article XX of the GATT 1994 referred to in the second part of footnote 1 to 
                                                                                                                                                  
their technical regulations except when such international standards or relevant parts would be 
an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued, for 
instance because of fundamental climatic or geograph ical factors or fundamental technological 
problems.  
158 Indonesia's appellant's submission, para. 88.  
159 The third sentence of Article 2.2 of the TBT Agreements makes clear that "legitimate objectives" 
include: "national security requirements; the prevention of deceptive practices; protection of human health or 
safety, animal or plant life or health, or the environment".  
160 Appellate Body Report, US – Tuna II (Mexico) , para. 319. (emphasis added) See also Appellate Body 
Report, US – Clove Cigarettes , para. 171.  
161 Appellate Body Report, EC – Sardines , para. 275.  
162 Appellate Body Report , EC – Hormones , paras. 10 4 and 172.  
163 Indonesia's appellant's submission, paras. 5 and 105.  WT/DS477/AB/R • WT/DS478/AB/R  
 
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  Article  4.2, the Panel impaired Indonesia's due process rights.164 New Zealand argues in response 
that Indonesia fails to substantiate independently this claim under Article 11 of the DSU , as it is 
solely based on Indonesia's challenge to the legal standards applied by the Panel.165 According to 
New Zealand , Indonesia's claim must therefore fail.166 We note that, in its appellee's submission, 
the United States does not separately address this claim by Indonesia. However, at the oral 
hearing, the United States reiterated the argument it put forward with respect  to Indonesia's 
first claim under Article 11 of the DSU addressed in section 5.1.3   above, namely, that Indonesia 
fails to put forward under Article  11 of the DSU  any arguments that are separate from or 
additional to the arguments it puts forward with respect to its substantive legal appeals.167 
5.53.   We recall that the Appellate Body has cautioned on several occasions that  a claim that a 
panel has failed to conduct an "ob jective assessment of the matter before it" under Article 11 of 
the DSU is "a very serious allegation".168 Accordingly, it is incumbent on a participant raising a 
claim under Article  11 to identify specific errors regarding the objectivity of the panel's ass essment 
and "to explain why the alleged error meets  the standard of review under that provision".169 
Importantly, a claim under Article  11 must "stand by itself and be substantiated with specific 
arguments, rather than merely being put forth as a subsidiary argument or claim in support of a 
claim of a panel's failure to construe or apply correctly a particular provision of a covered 
agreement" .170 
5.54.   We note that, in its appellant's submission, Indonesia has not put forward any specific 
arguments in support of its  claim that the Panel acted inconsistently with Article  11 of the DSU 
because it failed to make an objective assessment of which party bears the burden of proof under 
the second part of footnote 1 to Article 4.2  of the Agreement on Agriculture . Indonesia s tates, 
without more, that "[t]he Panel … did not conduct an objective assessment of which party bears 
the burden of proof with respect to the second element of footnote 1 to Article 4.2".171 We do not 
consider that this mere statement is sufficient to show t hat the Panel failed to comply with its 
duties under Article 11 of the DSU.  
5.55.   Consequently, we consider that Indonesia has not substantiated its claim under Article 11 of 
the DSU that the Panel failed to conduct an objective assessment of which party bears the burden 
of proof under the second part of footnote 1 to Article 4.2 of the Agreement on Agriculture.172 We 
therefore find that Indonesia has not demonstrated that the Panel acted inconsistently with 
Article  11 of the DSU in this respect.  
                                                
164 Indonesia's opening statement  at the oral hearing ; response to questioning at the oral hearing.  
165 New Zealand's appellee's submission, para. 101.  
166 New Zealand's appellee's submission, p aras. 101 and 110.  
167 United States' response to questioning at the oral hearing; appellee's submission, para. 83.  
168 Appellate Body Reports, Peru – Agricultural Products , para.  5.66; China  – Rare Earths , para. 5.227; 
EC – Poultry , para. 133.  
169 Appellate Body Reports, China – Rare Earths , para. 5.178; EC – Fasteners (China) , para. 442 . 
(emphasis original)  
170 Appellate Body Reports, Peru – Agricultural Products , para. 5.66; US – Anti-Dumping and 
Countervailing Duties (China) , para.  337. See also A ppellate Body Reports, US – Steel Safeguards , para. 498; 
Chile – Price Band System (Article  21.5 – Argentina) , para.  238; Australia – Apples , para. 406;  
China – Rare Earths , para.  5.173.  
171 Indonesia's appellant's submission, paras. 5 and 105 -106.  
172 As briefly set out above, Indonesia argued at the oral hearing that, in allocating to Indonesia the 
burden of proof under Article XX of the GATT 1994 referred to in the second part of footnote 1 to Article 4.2 of 
the Agreement on Agriculture, the Panel impaire d Indonesia's due process rights. According to Indonesia, this 
distinguishes its claim under Article  11 of the DSU from its substantive claims on appeal. (Indonesia's opening 
statement at the oral hearing; response to questioning at the oral hearing ) We no te, however, that this due 
process argument was raised in support of Indonesia's challenge under Article 11 of the DSU for the first time 
during the oral hearing, whereas Indonesia raised the same due process concerns in support of its substantive 
claim un der Article 4.2 in its appellant's submission. (Indonesia's appellant's submission, para. 93) Moreover, 
this argument rests on the assumption that the Panel erred in determining that Indonesia bears the burden of 
proof under the second  part of footnote 1 t o Article 4.2. Above, we have rejected Indonesia's substantive claim 
that the Panel erred in allocating to Indonesia the burden of proof under Article XX of the GATT 1994 referred 
to in the second part of footnote 1 to Article  4.2 of the Agreement on Agric ulture. Therefore, Indonesia's 
allegation at the oral hearing that the Panel impaired its due process rights by incorrectly allocating the burden 
of proof to Indonesia under the second  part of footnote 1 to Article 4.2 does not alter our conclusion that 
Indonesia has not substantiated its claim under Article 11 of the DSU.  WT/DS477/AB/R • WT/DS478/AB/R  
 
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5.2.4   Conclusions  
5.56.   For the reasons stated above , Article 4.2  of the Agreement on Agriculture and footnote 1 
thereto, read in their relevant context, do not suggest that the nature of Article XX of the 
GATT  1994 as an affirmative defence  is modified by virtue of its incorporation into the second part 
of footnote  1 to Article 4.2 . We thus find that the burden of proof under Article XX remains with 
the respondent even when Article XX is applied through the reference in the second part of 
footnote 1 to Article  4.2. In addition, we consider that Indonesia has not substantiated its claim 
under Article  11 of the DSU that the Panel failed to conduct an objective assessment of which 
party bears the burden of proof under the second part of footnote 1 to Article 4.2 of the 
Agreement on Agr iculture.  
5.57.   Accordingly, we uphold  the Panel's finding, in paragraph 7.34 of the Panel Report, that the 
burden of proof under Article XX of the GATT 1994 referred to in the second part of footnote 1 to 
Article 4.2 of the Agreement on Agriculture rests on Indonesia. With respect to Indonesi a's request 
to reverse the Panel's finding in paragraphs 7.833 and 8.2 of the Panel Report173, which pertain s to 
the Panel's exercise of judicial economy with respect to Article 4.2 of the Agreement on 
Agriculture, Indonesia has not explained how the alleged  error by the Panel in connection with the 
allocation of the burden of proof under the second part of footnote 1 to Article  4.2 leads to the 
conclusion that the Panel erred in exercising judicial economy. In any event, as we have found 
that the burden of p roof under Article XX of the GATT 1994 remains with the respondent also in 
the context of Article 4.2 of the Agreement on Agriculture and footnote 1 thereto, we see no 
reason to disturb the Panel's decision to exercise judicial economy with respect to the 
co-complainants' claims under Article 4.2 of the Agreement on Agriculture. Thus, we reject  
Indonesia's request to reverse the Panel's finding in paragraphs 7.833 and 8.2 of the Panel Report.  
5.3  Indonesia's alternative claim that the Panel erred in finding tha t Article XI:2(c) of 
the GATT 1994 has been rendered "inoperative" by Article 4.2 of the Agreement on 
Agriculture  
5.58.   We now turn to Indonesia's alternative claim of error that, if we were to find that the Panel 
did not err by addressing the claims under Artic le XI:1 of the GATT 1994 , rather than the claims 
under Article 4.2 of the Agreement on Agriculture, then the Panel erred in finding that 
Article  XI:2(c) of the GATT 1994 has been rendered "inoperative" by Article 4.2 of the Agreement 
on Agriculture.174 
5.59.   Befor e the Panel, Indonesia argued that , even if the Panel were to find that Measure  4 
(harvest period requirement), Measure  7 (reference prices for chillies and fresh shallots  for 
consumption ), and Measure  16 (beef reference price) are inconsistent with Articl e XI:1 of the 
GATT  1994, they are nonetheless "justified" under Article  XI:2(c)(ii) of the GATT 1994 because 
they are necessary to remove a temporary surplus of certain horticultural products, animals and 
animal products in Indonesia's domestic market.175 New Zealand and the United States responded 
that Article  XI:2(c)(ii) is no longer available with respect to agricultural products following the 
entry into force of the Agreement on Agriculture, because Article XI:2(c) does not qualify as an 
exception to the prohibition under Article 4.2 of the Agreement on Agriculture of "measures of the 
kind which have been required to be converted into ordinary customs duties".176 
5.60.   In paragraph 7.60 of its Report, the Panel agreed with New Zealand and the United States, 
and fo und that Indonesia cannot rely upon Article  XI:2(c)(ii) of the GATT 1994 to exclude 
Measure  4, 7, or  16 from the scope of Article XI:1 of the GATT 1994 because Article XI:2(c) has 
been rendered "inoperative" with respect to agricultural measures by Article  4.2 of the Agreement 
on Agriculture.177 
                                                
173 Indonesia's appellant's submission, paras. 95 and 107.  
174 Indonesia's appellant's submission, para. 109.  
175 Indonesia's second written submission to the Panel, para.  252. See also Panel Report, para.  7.58 
(referring to Indonesia's second written submission to the Panel, paras. 197, 199, 203, and 252 -257).  
176 Panel Report, para. 7.59 (referring to New Zealand's r esponse to Panel question No. 114; 
United  States' response to Panel question No.  114).  
177 Panel Report, para. 7.60.  WT/DS477/AB/R • WT/DS478/AB/R  
 
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  5.61.   In its appeal, Indonesia claims that the Panel erred in finding that Article XI:2(c) of the 
GATT  1994 has been rendered "inoperative" by Article 4.2 of the Agreement on Agriculture178, and 
requests us to reverse the Pan el's conclusion contained in paragraph 7.60 of the Panel Report.179 
5.3.1   Whether the Appellate Body should decline to rule on Indonesia's alternative 
claim on appeal  
5.62.   Before turning to the substance of Indonesia's alternative claim on appeal, we note that 
the United States submits that we need not reach a finding with respect to this claim.180 The 
United States argues that making findings on the interpretation of Article XI:2(c) of the GATT 1994 
is not necessary to resolve the present dispute because Indonesi a has not requested completion of 
the legal analysis, and , even if it had, Indonesia did not  even attempt to establish before the Panel 
that its measures are maintained under Article XI:2(c)(ii).181 
5.63.   We observe that Indonesia's appeal concerning the legal sta tus of Article XI:2(c) of the 
GATT  1994 pertains to  "issues of law covered in the panel report and legal interpretations 
developed by the panel" within the meaning of Article 17.6 of the DSU. We also recall that 
Article  17.12 of the DSU provides that the A ppellate Body "shall address each of the issues raised 
in accordance with [Article 17.6 of the DSU]". We further note that , while Indonesia has not 
requested us to complete the legal analysis under Article XI:2(c)(ii), it requests us to reverse the 
specifi c legal finding by the Panel because this finding  "has systemic  implications for all 
WTO Members", and "[t]he importance of maintaining recourse to Article XI:2(c) is of importance 
to the Government of Indonesia."182 New Zealand also requests us to uphold  this Panel finding183, 
despite its observation that Indonesia's appeal is "not material to resolving the dispute" as the 
essential requirements of Article XI:2(c)(ii) are not satisfied.184 In additi on, while our ruling on 
Article  XI:2(c) may not directly change the recommendations and rulings by the DSB with respect 
to Article XI:1 of the GATT 1994, the question as to whether Indonesia can in the future invoke 
Article  XI:2(c)(ii) to justify or exempt any compliance measure  taken with respect to 
Measures  4, 7, and  16 could affect the manner in which it can comply with the recommendations 
and rulings by the DSB.185 
5.64.   In light of the foregoing, we proceed to examine Indonesia's claim on appeal with respect to 
Article XI:2(c) of the GATT 1994.  
5.3.2   Whether the Panel erred in f inding that Article XI:2(c) of the GATT 1994 has been 
rendered "inoperative" with respect to agricultural measures  
5.65.   We begin our analysis by recalling the Panel's finding. The Panel stated, in paragraph 7.60 
of the Panel Report:  
We agree with the co -complainants. As they explained, Article XI:2(c) has been 
rendered inoperative with respect to agricultural measures by Article  4.2 of the 
Agreement on Agriculture, which prohibits Members from maintaining, resorting to, or 
reverting t o, "any measures of the kind which have been required to be converted into 
ordinary customs duties". Footnote 1 to Article  4.2 provides that the only measures 
that fall outside the scope of this provision are the ones "maintained under balance -
of-payment p rovisions or under other general, non -agriculture -specific provisions or of 
the other Multilateral Trade Agreements in Annex 1A to the WTO Agreement". 
Article  XI:2(c) by its terms concerns agricultural products and therefore does not 
qualify under the excl usion for general, non -agriculture -specific provisions. Therefore, 
Indonesia cannot rely upon Article  XI:2(c)(ii) of the GATT 1994. This is confirmed by 
Article 21 of the Agreement on Agriculture, which provides that "[t]he provisions of 
                                                
178 Indonesia's appellant's submission, para. 109.  
179 Indonesia's appellant's submission, para. 127.  
180 United States' appellee's submission, par a. 155.  
181 United States' appellee's submission, paras. 156 -158. 
182 Indonesia's appellant's submission, para. 108.  
183 New Zealand's appellee's submission, para. 129.  
184 New Zealand's appellee's submission, para. 128.  
185 We recall that, in US – Upland Cotton , the Appellate Body noted that "there may be cases in which it 
would be useful for us to review an issue, despite the fact that our ruling would not result in rulings and 
recommendations by the DSB". (Appellate Body Report, US – Upland Cotton , para. 510)  WT/DS477/AB/R • WT/DS478/AB/R  
 
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GATT 1994", includ ing Article  XI:2(c)(ii) of the GATT  1994, "shall apply subject to the 
provisions of this Agreement". Accordingly, we conclude that Indonesia cannot rely 
upon Article  XI:2(c)(ii) of the GATT 1994 to exclude Measures 4, 7 and 16 from the 
scope of Article XI: 1 of the GATT  1994 because, with respect to agricultural measures, 
Article  XI:2(c) has been rendered inoperative by Article 4.2 of the Agreement on 
Agriculture.186 
5.66.   Thus, the Panel considered that the types of measures permitted under Article XI:2(c) of 
the G ATT 1994 are not exempted from the prohibition of market access barriers on agricultural 
products under Article 4.2 of the Agreement on Agriculture because "Article XI:2(c) by its terms 
concerns agricultural products and therefore does not qualify under th e exclusion for general, non -
agriculture -specific provisions " within the meaning of footnote 1 to Article 4.2. The Panel then 
recalled Article 21.1 of the Agreement on Agriculture, and found that Article XI:2(c) has been 
rendered "inoperative" with respect  to agricultural measures because , by virtue of Article 21.1, the 
provisions of the GATT 1994 "shall apply subject to" the provisions of the Agreement on 
Agriculture.  
5.67.   In its appeal, Indonesia claims that the Panel's interpretation that Article XI:2(c) of t he 
GATT  1994 has been rendered "inoperative" with respect to agricultural products is in error. 
Indonesia argues that the Panel "focused on the wrong element of footnote 1 [to Article 4.2  of the 
Agreement on Agriculture ]"187 in reaching its conclusion that A rticle 4.2 does not allow for the 
types of derogations set out in Article  XI:2(c). According to Indonesia, Article XI:2(c) does not 
concern the second  part of footnote 1 to Article 4.2 because it is "not an exception captured by the 
second element of this footnote 1".188 Rather, Article XI:2(c) "defines" the term "quantitative 
import restrictions" in the first part of footnote 1.189 Indonesia notes in this context that the phrase 
"quantitative import restrictions" in the first part of footnote 1 is not defined in the Agreement  on 
Agriculture .190 Accordingly, this phrase "must … be interpreted by referring, inter alia , to its 
relevant context, in particular Article XI (i.e. its paragraphs 1 and 2) of the GATT 1994".191 
Indonesia observes that a measure falling under one of the subparagraphs of Article XI:2 of the 
GATT 1994, including Article  XI:2(c)(ii), "is not disciplined as a quantitative import restriction 
within the meaning of Article XI:1 of the GATT 1994".192 Therefore, measures satisfy ing the 
requirements of Art icle XI:2(c)(ii) should also fall outside "quantitative import restrictions" in the 
first part of footnote 1 to Article 4.2  of the Agreement on Agriculture .193 
5.68.   New Zealand and the United States, on their part, submit that the Panel did not err in 
finding tha t Article XI:2(c) of the GATT 1994 has been rendered "inoperative" by Article 4.2 of the 
Agreement on Agriculture.194 They agree with the Panel that measures falling under Article XI:2(c) 
are not exempted from the prohibition of market access barriers under Article 4.2 because 
Article  XI:2(c) applies specifically to agricultural  and fisheries products, and thus does not qualify 
as a "general, non -agriculture -specific provision []" within the meaning of the second part of 
footnote  1 to Article  4.2.195 
5.69.   As such, th e core issue before us is whether the coverage of the prohibition of "quantitative 
import restrictions" under Article 4.2 of the Agreement on Agriculture extends to the kinds of 
measures referred to in Article XI:2(c) of the GATT 1994.  
5.70.   Article 4.2 of the A greement on Agriculture prohibits Members from maintaining, resorting 
to, or reverting to "any measures of the kind which have been required to be converted into 
ordinary customs duties". The first part of footnote 1 to Article 4.2 illustrates the categori es of 
measures which have been required to be converted into ordinary customs duties, including 
"quantitative import restrictions". The term "quantitative import restrictions" is not defined in the 
                                                
186 Panel Report, para. 7.60.  
187 Indonesia's appellant's submission, para. 120.  
188 Indonesia's appellant's submission, para. 120.  
189 Indonesia's appellant's submission, para. 120.  
190 Indonesia's appellant's submission, para. 123.  
191 Indonesia's appellant's submission , para. 123.  
192 Indonesia's appellant's submission, para. 122.  
193 Indonesia's appellant's submission, para. 122.  
194 New Zealand's appellee's submission, para. 114; United States' appellee's submission, paras. 159 
and 163. 
195 New Zealand's appellee's submission , para. 123; United States' appellee's submission, para. 161.  WT/DS477/AB/R • WT/DS478/AB/R  
 
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  Agreement on Agriculture. However, a plain reading of the term "quantitative import restrictions" 
suggests that it refers to any restriction  on the importation  of an agricultural product196 that is 
related to its quantity . In addition, because "quantitative import restrictions" in footnote 1 to 
Article 4.2 are amon g "measures of the kind which have been required to be converted into 
ordinary customs duties "197, the term "quantitative import restrictions" does not include ordinary 
customs duties.  
5.71.   Furthermore, as context for interpreting the prohibition of "quantitative  import restrictions" 
under Article 4.2 of the Agreement on Agriculture, we note that Article XI of the GATT 1994 sets 
out a prohibition of quantitative restrictions . Article XI provides, in relevant part:  
Article XI  
General Elimination of Quantitative Restrictions  
1. No prohibitions or restrictions other than duties, taxes or other charges, 
whether made effective through quotas, import or export licences or other measures, 
shall be instituted or maintained by any Member on the importation of any product  of 
the territory of any other Member or on the exportation or sale for export of any 
product destined for the territory of any other Member.  
2. The provisions of paragraph 1 of this Article shall not extend to the following:  
… 
(c) Import restrictions on a ny agricultural or fisheries product, imported in 
any form, necessary to the enforcement of governmental measures which 
operate:  
… 
(ii) to remove a temporary surplus of the like domestic product, or, if 
there is no substantial domestic production of the li ke product, of a 
domestic product for which the imported product can be directly 
substituted, by making the surplus available to certain groups of 
domestic consumers free of charge or at prices below the current 
market level; …  
5.72.   Article XI  of the GATT 1994 governs the elimination of quantitative restrictions  generally.198 
In particular, paragraph 1 "lays down a general obligation to eliminate quantitative restrictions", 
and "prohibits Members to institute or maintain prohibitions or restrictions other than dut ies, 
taxes, or other charges, on the importation, exportation, or sale for export of any product destined 
for another Member".199 Paragraph 2 of Article XI, in turn, provides that "[t]he provisions of 
paragraph 1 of this Article shall not extend to" the type s of measu res stipulated in 
subparagraphs  2(a) to 2(c). As relevant in this appeal, Article XI:2(c)(ii) exempts fr om the 
obligation under Article  XI:1 those import restrictions on agricultural and fisheries products that 
are necessary to the enforcement of  certain governmental measures which operate to remove a 
temporary surplus of certain domestic products.  The Appellate Body has stated that the word 
"quantitative" in the title of Article XI "informs the interpretation of the words 'restriction' and 
'prohi bition' in Article  XI:1 and XI:2", and accordingly, this provision  "covers those prohibitions and 
restrictions that have a limiting effect on the quantity or amount of a product being imported or 
exported ".200 
                                                
196 Article 2 of the Agreement on Agriculture provides: "This Agreement applies to the products listed in 
Annex 1 to this Agreement, hereinafter referred to as agricultural products."  
197 Emphasis added.  
198 See Appellate Body Reports, China – Raw Materials , para. 320; Panel Reports,  
China – Raw Materials , para. 7.912.  
199 Appellate Body Reports, Argentina – Import Measures , para. 5.216.  
200 Appellate Body Reports, China – Raw Materials , para. 320. WT/DS477/AB/R • WT/DS478/AB/R  
 
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5.73.   As noted  above , Indonesia alleges that , because the term "quantitative import restrictions" 
in the first part of footnote 1 to Article 4.2 of the Agreement on Agriculture is not defined in that 
Agreement, this term must be informed by both Article XI:1 and XI:2 of the GATT 1994201, such 
that measures sati sfying the conditions of Article XI:2(c), among others, are excluded from 
"quantitative import restrictions" in the first part of footnote 1.202 
5.74.   As we have already stated in section 5.1  Article 4.2 of the Agreement on Agriculture  and 
Article XI:1 of the GATT 1994 contain essentially the same prohibitions of quantitative restrictions  
as far as the importation of agricultural products is concerned. We therefore agree that the term 
"quantitative import restrictions" in the first part of footnote 1 to Article 4.2 should be interpreted 
in light of the prohibition of quantitative restricti ons under Article XI:1.  
5.75.   With respect to the relationship between Article 4.2  of the Agreement on Agriculture  and 
Article XI:2(c)  of the GATT 1994 , however, we observe that there is no express language in 
Article  XI of the GATT 1994 that suggests that the derogations under Article XI:2(c) are relevant 
not only to the prohibition under Article XI:1 but also to the prohibition under Article 4.2. On the 
contrary, the opening clause of Article XI:2 clearly states that the derogations set out in 
subparagraphs 2(a) to 2(c) concern "paragraph 1 of this Article". Article 4.2 and footnote 1 thereto 
also do not expressly indicate whether the prohibition of "quantitative import restrictions" under 
this provision  is subject to the derogations under Article  XI:2(c). In p articular, the second part of 
footnote  1 provides that "measures" prohibited under Article 4.2 do not include measures 
maintained under "balance -of-payments provisions or under other general, non -agriculture -specific 
provisions of GATT 1994 or of the other  Multilateral Trade Agreements in Annex 1A to the 
WTO Agreement ". Article XI:2(c) is clearly not a "balance -of-payments provision []".203 
Article  XI:2(c) also does not qualify as a "general, non -agriculture -specific provision []" because it 
is "agriculture -specific" in the sense that its application is limited to " agricultural  or fisheries 
product" in express terms.204 As such, there is no basis in the text of Article 4.2 or footnote 1 to 
conclude that measures maintained under Article XI:2(c) fall outside the pr ohibition of 
"quantitative import restrictions" under this provision . Indeed, if the drafters of the Agreement on 
Agriculture  had intended to exempt from the prohibition of marke t access barriers under 
Article  4.2 measures maintained under Article  XI:2(c)  of the GATT 1994 , they could have done so  
by, for example, adding a reference to Article XI:2(c) in, or omitting the phrase "general, non -
agriculture -specific" from, the second part of footnote  1. 
5.76.   Furthermore, while Article XI:2 of the GATT 1994 provides t hat "[t]he provisions of 
paragraph 1 of this Article shall not extend to" the kinds of "[i]mport restrictions" mentioned in 
subparagraph 2(c), these "[i]mport restrictions" are not disqualified from being quantitative 
restrictions . As noted  above , the Appellate Body has explained that the word "quantitative" in the 
title of Article XI of the GATT 1994 informs the interpretation of the words "prohibitions" and 
"restrictions" in both Article XI:1 and Article XI:2.205 In this light, the reference to "[ i]mport 
restrictions" in Article  XI:2(c) is clearly a reference to a certain specified class of measures that fall 
within quantitative (import) restrictions , but are exempted from the prohibition  under Article XI:1 
because they are necessary to the enforce ment of certain governmental measures. While it is the 
function of Article XI:2(c) to carve out certain quantitative restrictions from the prohibition  
contained in Article XI:1, this does not change the fact that they are quantitative restrictions. This 
confirms  the interpretation that the term "quantitative import restrictions" in footnote 1 to 
Article  4.2 of the Agreement on Agriculture is broad enough to encompass both quantitative 
(import) restrictions falling under Article XI:1 and "[i]mport restrictio ns" referred to in 
Article  XI:2(c)  of the GATT 1994 . 
                                                
201 Indonesia's appellant's submission, para. 123.  
202 Indonesia's appellant's submission, para. 122.  
203 The term "balance -of-payments provisions" has been recognized as referring to, inter alia , 
Articles  XII and XVIII:B of the GATT 1994. (See  e.g. preambl e to the Understanding on the Balance -of-
Payments Provisions of the General Agreement on Tariffs and Trade 1994 (in Annex 1A to the 
WTO Agreement); preamble to the Declaration on Trade Measures Taken for Balance -of-Payments Purposes 
(GATT  document L/4904 a dopted on 28 November 1979, BISD 26S, pp. 205 -209))  
204 Emphasis added. Indonesia does not dispute that Article XI:2(c) of the GATT 1994 does not qualify 
as a "provision[]" mentioned in the second part of footnote 1 to Article 4.2 of the Agreement on Agricul ture. 
(See Indonesia's appellant's submission, para. 120)  
205 Appellate Body Reports, China – Raw Materials , para. 320.  WT/DS477/AB/R • WT/DS478/AB/R  
 
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  5.77.   Lastly, we note that Indonesia's interpretation of footnote 1 to Article 4.2 of the Agreement 
on Agriculture and Article XI:2(c) of the GATT 1994 relies on the distinction between a limitation of 
scope  and an exception . For example, Indonesia asserts that the "common feature" of measures 
falling within the second part of footnote 1 is that they are inconsistent  with GATT  obligations but 
justified under GATT exceptions , such as Articles XII, XVIII, XIX , and XX of the GATT 1994.206 
According to Indonesia, because Article XI:2(c) is a "scope" provision and not an "exception", 
whether or not this provision detracts from the obligation under Article 4.2 is not a question under 
the second  part of footnote 1, but r ather a question that concerns the interpretation of the 
first part of footnote 1.207 Indonesia also appears to consider that the fact that Article XI:2(c) 
concerns the "scope" of the prohibition of quantitative restrictions  under Article  XI:1 should inform 
the definition of "quantitative import restrictions" in the first part of footnote 1 to Article  4.2.208 
5.78.   We disagree that the distinction between a limitation of scope  and an exception  is 
dispositive of the issue before us. As we have already explained, while  Article XI:2(c) of the 
GATT  1994 limits the scope of the obligation  under Article XI:1 of the GATT 1994, this provision  
does not define the scope of the notion  of quantitative restrictions itself, because the term 
"[i]mport restrictions" in Article XI:2(c ), read in light of the word "quantitative" in the title of 
Article XI, is a reference to a certain class of quantitative (import) restrictions . This confirms the 
interpretation that the term "quantitative import restrictions" in the first part of footnote  1 to 
Article 4.2 of the Agreement on Agriculture covers the kinds of measures referred to in 
Article  XI:2(c). In addition, regardless of how we characterize Article  XI:2(c), nothing in the text of 
Article XI suggests that Article XI:2(c) limits not only t he scope of the obligation under 
"paragr aph 1 of this Article" but also the scope of the obligation under Article  4.2. Nor does the 
text of Article 4.2 or footnote 1 suggest that the prohibition of quantitative import restrictions 
under this provision  is subject to the carve -outs set out in Article XI:2(c). On the contrary, the 
second part of footnote 1 clearly indicates that , while measures maintained under "general, non -
agriculture -specific provisions "209 of the GATT 1994, such as Article XX, are exclu ded from the 
obligation under Article  4.2, measures maintained under agriculture -specific "provisions" of the 
GATT 1994, including Article XI:2(c), do not qualify for such derogations. This conclusion is not 
dependent on whether Article XI:2(c) is a limita tion of scope of, or an exception from, the 
obligation under Article XI:1, as the second part of footnote 1 uses the word "provisions" and does 
not distinguish between a "limitation of scope" and an "exception".  
5.79.   In light of the foregoing, we disagree with  Indonesia that agricultural measures maintained 
under Article  XI:2(c) of the GATT 1994 are not "quantitative import restrictions" within the 
meaning of the first part of footnote 1 to Article 4.2 of the Agreement on Agriculture. We therefore 
find that the  prohibition of "quantitative import restrictions" under Article 4.2 extends to the kinds 
of quantitative import restrictions carved out from the prohibition under Article XI:1  of the 
GATT  1994 by virtue of Article XI:2(c). As a consequence, Members cannot  maintain quantitative 
import restrictions on agricultural products that satisfy the requirements of Article XI:2(c) of the 
GATT 1994 without violating Article 4.2 of the Agreement on Agriculture. This is because the 
prohibition of "quantitative import res trictions" under Article 4.2 does not allow for the kind of 
derogations recognized under "agriculture -specific" provisions such  as Article XI:2(c) of the 
GATT  1994.  
5.80.   We recall in this regard that Article 21.1 of the Agreement on Agriculture provides that t he 
provisions of the GATT 1994 "shall apply subject to" the provisions of that Agreement. The 
Appellate  Body has stated that  "Members explicitly recognized that there may be conflicts between 
the Agreement on Agriculture and the GATT 1994, and explicitly p rovided, through Article  21, that 
the Agreement on Agriculture would prevail to the extent of such conflicts."210 There is a conflict211 
between Article XI:2(c) and Article  4.2 because quantitative import restrictions on agricultural 
products that fall within the permission under the former provision cannot be maintained without 
violating the latter provision. Therefore, in accordance with Article  21.1 of the 
                                                
206 Indonesia's appellant's submission, para. 121.  
207 See Indonesia's appellant's submission, paras. 116 and 120.  
208 Indonesia's appellant's submission, para. 123.  
209 Emphasis added.  
210 Appellate Body Report, EC – Export Subsidies on Sugar , para. 221. (italics omitted)  
211 In the context of interpreting Article 1.2 of the DSU, the Appellate Body has defined "conflict" as "a  
situation where adherence to the one provision will lead to a violation of the other provision". (Appellate Body 
Report, Guatemala – Cement I , para. 65) See also Panel Reports, EC – Bananas III , para. 7.159.  WT/DS477/AB/R • WT/DS478/AB/R  
 
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Agreement  on Agriculture, Article XI:2(c) cannot be applied to justify or exempt measures that fall 
within the prohibition of quantitative import restriction under Article 4.2.  
5.81.   The Panel further stated that , by virtue of Article 21.1 of the Agreement on Agriculture, 
"Indonesia cannot rely upon Article  XI:2(c)(ii) of the GATT 1994 to exclude Measures 4, 7 a nd 16 
from the scope of  Article XI:1 of the GATT  1994 because, with respect to agricultural  measures, 
Article  XI:2(c) has been rendered inoperative  by Article 4.2 of the Agreement on Agriculture."212 
By referring to "the scope of Article XI:1 of the GATT 1994", the Panel apparently considered that 
Indonesia cannot rely on Article XI:2(c) not only with respect to the co -complainants' claims under 
Article 4.2 of the Agreement on Agriculture, but also wi th respect to the ir claims under Article XI:1 
of the GATT 1994.  
5.82.   We note that Indonesia has not demonstrated that Measures 4, 7, and 16 satisfy all the 
elements of Article XI:2(c)(ii) of the GATT 1994213, and thus the Panel's findings of inconsistency 
of thes e measures with Article XI:1 of the GATT 1994 remain undisturbed. We also recall that 
Article  XI:1 of the GATT 1994 and Article  4.2 of the Agreement on Agriculture contain essentially 
the same substantive obligations as far as the elimination of quantitati ve import restrictions on 
agricultural products is concerned. As such, the Panel's findings that Measure s 4, 7, and 16 are 
quantitative restrictions  on the importation of agricultural products inconsistent with Article XI:1 
would, without requiring much mo re, lead to the conclusion that these measures also fall within 
the prohibition of quantitative import restrictions under Article 4.2 and the first part of footnote 1 
thereto.214 Accordingly, and because Article  XI:2(c) cannot be invoked to justify or exempt  
measures falling within the prohibition of Article 4.2, Indonesia cannot maintain, resort to, or 
revert to Measures 4, 7, or 16  regardless of whether Article XI:2(c) is being invoked by Indonesia 
in relation to Article XI:1 or Article 4.2.  
5.83.   We further not e that , while Article 21.1 of the Agreement on Agriculture governs the 
relationship between Article  4.2 of the Agreement on Agriculture and Article XI:2(c)  of the 
GATT  1994, it does not necessarily follow that Article  21.1 affects the internal  relationship  between 
Article XI:1 and XI:2(c) of the GATT  1994, in the sense that Article 21.1 precludes Members from 
relying on Article XI:2(c) not only vis-à-vis claims under Article 4.2 but also vis-à-vis claims under 
Article XI:1 of the GATT 1994. In any event, our finding that Indonesia cannot rely on 
Article  XI:2(c) to justify or exempt its measures with respect to the prohibition of quantitative 
import restrictions under Article 4.2 would provide sufficient guidance for the purpose of resolving 
the present dispu te, including in relation to the implementation by Indonesia of the 
recommendations and rulings by the DSB.  
5.3.3   Conclusions  
5.84.   For the reasons stated above, we disagree with Indonesia that agricultural measures 
maintained under Article XI:2(c) of the GATT 1994 ar e not "quantitative import restrictions" within 
the meaning of the first part of footnote 1 to Article 4.2 of the Agreement on Agriculture. We 
therefore find that the prohibition of "quantitative import restrictions" under Article  4.2 extends to 
measures s atisfying the requirements of Article XI:2(c). We further find that, by virtue of 
Article  21.1 of the Agreement on Agriculture, Article XI:2(c) of the GATT 1994 cannot be relied 
upon to justify or exempt quantitative import restrictions that are inconsistent with Article  4.2 of 
the Agreement on Agriculture. In addition, t he Panel's findings that Measures 4, 7, and 16 are 
                                                
212 Panel Report, para. 7.60. (emphasis added)  
213 In its appellant's submission, Indonesia explains that "[t]o fall within the scope of Article XI:2(c)(ii), 
a measure must fulfil the following relevant conditions: (i) it must be an import restriction; (ii) on any 
agricultural or fisheries product, (iii) imported in any form, (iv) necessary to the enforcement of governmental 
measures; (v) operating to remove a temporary surplus of the like domestic product; (vi) by making the 
surplus available to certain groups of domestic consumers free of charge or at pr ices below the current market 
level." (Indonesia's appellant's submission, para. 118 (fns omitted)) However, before the Panel, Indonesia did 
not, among others, identify the specific governmental measures which operate to remove the temporary 
surplus of a d omestic product, or demonstrate that the surplus has been made available to domestic 
consumers free of charge or at discounted prices. (See Indonesia's second written submission to the Panel, 
paras. 197, 199, 203, and 252 -257) 
214 We note our earlier conclus ion that Article XX of the GATT 1994 can be invoked in relation to both 
the prohibition of quantitative restrictions under Article XI:1 of the GATT 1994 and the prohibition of 
quantitative import restrictions under Article 4.2 and the first part of footnot e 1 of the Agreement on 
Agriculture, and that the same allocation of the burden of proof under Article XX applies.  WT/DS477/AB/R • WT/DS478/AB/R  
 
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  quantitative restrictions  on the importation of agricultural products inconsistent with Article XI:1 of 
the GATT  1994 would lead  to the conclusion that these measures also fall within the prohibition of 
quantitative import restrictions under Article 4.2. This conclusion does not chang e regardless of 
whether Article  XI:2(c) is being invoked by Indonesia in relation to Article XI:1 o r Article 4.2.  
5.85.   Accordingly, we uphold  the Panel's finding , in paragraph 7.60 of the Panel Report , to the 
extent that it states that, by virtue of Article 21.1 of the Agreement on Agriculture, Article XI:2(c) 
of the GATT 1994 cannot be relied upon to justi fy or exempt measures falling within the 
prohibition of quantitative import restrictions under Article 4.2 of the Agreement on Agriculture.   
5.4  Indonesia's claim under Article XX of the GATT 1994  
5.86.   We now turn to Indonesia's claim on appeal that the Panel erred in finding that Indonesia 
had failed to demonstrate that Measures 9 through 17 are justified under Article XX of the 
GATT  1994. Indonesia takes issue with the fact that the Panel assessed whet her Measures 9 
through 17 met the requirements of the chapeau  of Article XX, without first examining whether 
these measures were provisionally justified under the applicable paragraphs of Article  XX. 
According to Indonesia, in so doing, the Panel failed to  follow the well -established sequence of 
analysis under Article XX for determining whether measures are justified.215 On this basis, 
Indonesia requests us to reverse the Panel's conclusions in paragraphs 7.824, 7.826, 7.827, and 
7.829 of the Panel Report , as well as the Panel's findings in paragraphs 7.830 and 8.1.c216, insofar 
as these conclusions and findings pertain to Measures 9 through 17.217 Should we reverse these 
findings by the Panel, as Indonesia requests us to do, Indonesia submits that there are 
"insufficient factual findings on the record" in respect of Measures  9 through  17 for us to complete 
the legal analysis under Article  XX.218  
5.87.   We first set out briefly the Panel's conclusions and findings under Article XX of the 
GATT  1994, prior to addressing the order of analysis under that provision.  
5.4.1   The Panel's conclusions and findings  
5.88.   Before the Panel, Indonesia raised a number of defences under Article XX(a), (b) , and (d) of 
the GATT  1994 in respect of Measures 1 through 17, which the Panel decided to address  in turn, 
starting with Measure 1.219 In assessing these defences, the Panel recalled that "the assessment of 
a claim of justification under Article  XX involves a two -tiered analysis in which a measure must 
(i) be provisionally justified under one of the sub paragraphs of Article XX … and then (ii) analysed 
under the chapeau  of Article  XX."220 Addressing Measures 1 through 7 in turn, the Panel found that 
Indonesia had failed to demonstrate that any of these measures are provisionally  justified under 
Article  XX(a), (b) , or (d). Having reached these findings, the Panel refrained from analysing these 
measures under the chapeau of Article XX, and found that Indonesia had failed to demonstrate 
that any of these measures are justified under  Article XX(a), (b) , or (d).221  
5.89.   Turning to Measure 8, the Panel equally found that Indonesia had failed to demonstrate that 
this measure is provisionally justified under Article  XX(b), but considered that this particular 
finding could  be appealed.222 The Pane l observed that, if that were the case, "the Appellate  Body 
[would] need sufficient facts on the record to address any argument under the chapeau  of 
                                                
215 Indonesia's appellant's submission, para. 129.  
216 Indonesia's appellant's submission, para.  160.  
217 Indonesia's response to questioning at the oral hearing.  
218 Indonesia's appellant's submission, para.  161. 
219 Panel Report, para. 7.520. The Panel provided an overview of Indonesia's defences under 
Article  XX(a), (b), and (d) of the GATT 1994 in respect of Measures 1 through 17 in a table at para graph 7.519 
of its Report. We note that, while Indonesia had also raised a defence under Article XX(b) in respect of 
Measure  18, the Panel dismissed this defence on a preliminary basis because Indonesia had failed to make a 
prima facie defence. (Ibid., par a. 7.517)  
220 Panel Report, para. 7.561 (referring to Appellate Body Reports, EC – Seal Products , para.  5.169, in 
turn referring to Appellate Body Reports, US – Gasoline , p. 22, DSR 1996:I, p. 20; US – Shrimp , 
paras.  119-120; US – Gambling , para. 292). See a lso paras. 7.618 and 7.648.  
221 Panel Report, paras.  7.585 -7.586, 7.594 -7.595, 7.605 -7.606, 7.635 -7.636, 7.660 -7.661, 7.682 -
7.683, 7.692 -7.693, 7.720 -7.721, 7.742 -7.743, 7.750 -7.751, and 7.776 -7.777.  
222 Panel Report, para. 7.804.  WT/DS477/AB/R • WT/DS478/AB/R  
 
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Article  XX".223 The Panel therefore decided to "assume arguendo " that Measure  8 is provisionally 
justified an d to "examine whether Measure  8 is applied in a manner consistent with the chapeau  of 
Article XX."224 However, given that Indonesia had conflated its arguments under the  chapeau  of 
Article  XX225, the Panel proceeded to examine "whether Indonesia's import licen sing regimes for 
horticultural products and animals and animal products as a whole, including the individual 
measures therein, are applied in a manner consistent with the chapeau , with respect to all 
three  relevant subparagraphs of Article  XX of the GATT  1994."226 Thus, r ather than focus ing 
exclusively on Measure 8, the Panel addressed Measures 1 through 17 under the chapeau of 
Article  XX and found that "Indonesia ha [d] failed to demonstrate that its import licensing regimes 
for horticultural products and ani mals and animal products as a whole, and the individual 
measures therein, including Measure  8, are applied in a manner consistent with the chapeau  of 
Article  XX".227 On this basis, the Panel found that Indonesia had failed to demonstrate that 
Measure 8 is ju stified under Article  XX(b).228 
5.90.   Finally, the Panel turned to Measures 9 through 17. In essence, the Panel recalled that 
Indonesia had failed to demonstrate that these measures are applied in a manner consistent with 
the chapeau  of Article  XX and observed that compliance with the chapeau  is a necessary 
requirement in order for a measure to find justification under this provision.229 For this reason, the 
Panel refrained from continuing its analysis of Indonesia's defences under Arti cle XX(a), (b) , or (d) 
for Measures  9 through  17230, and found that "Indonesia ha [d] failed to demonstrate that 
Measures  9 through  17 are justified under Articles XX(a), (b) or (d) of the GATT  1994, as 
appropriate."231 Thus, whereas the Panel assessed first wh ether Measures  1 through  8 are 
provisionally justified under Article  XX(a), (b) , or (d), the Panel assessed Measures  9 through  17 
only under the chapeau  of Article XX , and, on this sole basis, dismissed Indonesia's defences in 
respect of these measures.  
5.4.2   The order of analysis under Article XX of the GATT 1994  
5.91.   As briefly set out above, Indonesia claims that the Panel erred in finding that Indonesia had 
failed to demonstrate that Measures 9 through 17 are justified under Article XX(a), (b) , or (d) of 
the GATT  1994 because the Panel assessed these measures only under the chapeau of that 
provision  and did not examine whether these measures are provisionally justified under the 
relevant paragraphs of Article XX.232 According to Indonesia, Article XX requires panels  to assess 
first, whether the measure at issue is provisionally justified under the relevant paragraphs of 
Article  XX and , second, whether the provisionally justified measure complies with the requirements 
of the chapeau  of Article  XX.233 Indonesia submits t hat the Panel erred by not following this 
"mandatory sequence" in respect of Measures 9 through 17.234 In addition, Indonesia submits that 
"the Panel's failure to structure its analysis in the mandatory sequence had repercussions for the 
substance of its ana lysis."235  
                                                
223 Panel Report, para. 7.804.  
224 Panel Report, para. 7.804.  
225 Indonesia argued that its import licensing regimes for horticultural products and animals and animal 
products "as a whole" are applied in a manner consistent with the chapeau of Article  XX of the GATT 1994 , 
"without making a ny relevant distinctions between the individual measures at issue " and by "conflat[ing] all 
three defences under subparagraphs (a), (b) and (d) of Article  XX of the GATT  1994". (Panel Report, 
para. 7.805 (fn omitted))  
226 Panel Report, para. 7.805.  
227 Panel Report, para. 7.827.  
228 Panel Report, para. 7.828.  
229 Panel Report, para. 7.829.  
230 Panel Report, para. 7.829.  
231 Panel Report, para. 7.830.  
232 Indonesia's appellant's submission, paras. 129 and 150 (referring to Panel Report, 
paras.  7.829 -7.830).  
233 Indonesia's appellant's submission, para.  140 (referring to Appellate  Body Report,  
US – Gasoline , p. 22, DSR 1996:I, p.  20). 
234 Indonesia's appellant's submission, para.  151 (referring to Appellate Body Report,  
US – Shrimp , paras.  119-120 and  122) and pa ra. 152.  
235 Indonesia's appellant's submission, para.  153 (referring to Appellate Body Report,  
Canada  – Wheat Exports and Grain Imports , para.  109). Moreover, Indonesia argues that the legal error 
committed by the Panel was "linked to its examination of ' Indonesia's import licensing regimes for horticultural 
products and animals and animal products' as a whole". (Ibid., para.  156 (quoting Panel Report, para.  7.806)) WT/DS477/AB/R • WT/DS478/AB/R  
 
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  5.92.   In contrast, New Zealand and the United  States take the view that analysing a measure 
under the chapeau without first assessing it under the applicable paragraphs of Article  XX is not 
per se a reversible legal error.236 Rather, according to them, i t is only ground for reversal if it 
causes a panel's conclusion to be substantively wrong.237 In the instant case, New Zealand and the 
United States consider that the Panel conducted a substantively correct analysis of the chapeau  of 
Article  XX, and there is  thus no basis for reversing the Panel's finding under Article  XX in respect of 
Measures  9 through  17.238  
5.93.   We recall that Article  XX of the GATT 1994 provides, in relevant part239: 
Article XX  
General Exceptions  
Subject to the requirement that such measures are  not applied in a manner which 
would constitute a means of arbitrary or unjustifiable discrimination between countries 
where the same conditions prevail, or a disguised restriction on international trade, 
nothing in this Agreement shall be construed to pre vent the adoption or enforcement 
by any Member of measures:  
(a) necessary to protect public morals;  
(b)  necessary to protect human, animal or plant life or health;  
… 
(d)  necessary to secure compliance with laws or regulations which are not 
inconsistent with the provisions of this Agreement, including those relating to 
customs enforcement, the enforcement of monopolies operated under 
paragraph 4 of Article  II and Article  XVII, the protection of patents, trade marks 
and copyrights, and the prevention of deceptive practices; …  
5.94.   Members can resort to Article XX as an exception to justify measures that would otherwise 
be inconsistent with GATT obligations. Article  XX is made up o f two main parts:  (i) ten paragraphs, 
which enumerate the various categories of "governmental acts, laws or regulations which 
WTO Members may carry out or promulgate in pursuit of differing legitimate state policies or 
interests outside the realm of trade liberalization"240; and (ii) the chapeau , which imposes 
additional disciplines on measures that have been found to be provisionally justified under one of 
the paragraphs of Article  XX.241  
5.95.   The chapeau  and the paragraphs of Article XX contain independent requir ements that must 
be satisfied for a measure to be justified. Specifically, the chapeau of Article XX serves the purpose 
of ensuring that provisionally justified measures under one of the paragraphs are not applied in 
such a way as would constitute an abuse  of the exceptions of Article  XX.242 The chapeau  does so 
by requiring that measures not be "applied in a manner which would constitute a means of 
arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or 
                                                                                                                                                  
According to Indonesia, in light of the principle of jura novit curia , the Panel was not "d riven" to follow 
Indonesia's approach of assessing the regimes "as a whole" under the chapeau  of Article XX of the GATT 1994. 
(Ibid., para. 158) In this context, Indonesia reiterates that the Panel should have examined whether 
Measures  9 through 17 were pr ovisionally justified under the relevant paragraphs of Article XX. (Ibid., 
para. 159) 
236 New Zealand's appellee's submission, paras.  139 and 145; United States' appellee's submission, 
para. 178. 
237 New Zealand's appellee's submission, para.  138; United State s' appellee's submission, para.  179. 
238 New Zealand's appellee's submission, paras.  153 and 186; United States' appellee's submission, 
para. 204. 
239 As set out above, Indonesia invoked paragraphs (a), (b), and (d) of Article XX of the GATT  1994 to 
justify it s measures at issue in this dispute.  
240 Appellate  Body Report, US – Gasoline , p. 17, DSR 1996:I, p. 16.  
241 Appellate Body Reports, EC – Seal Products , para. 5.296.  
242 See e.g. Appellate Body Reports, US – Gasoline , p. 22, DSR 1996:I, p.  21; US – Shrimp , para.  156; 
EC – Seal Products , para.  5.297.  WT/DS477/AB/R • WT/DS478/AB/R  
 
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a disguised re striction on international trade". Accordingly, the function of the chapeau of 
Article  XX is "to prevent abuse of the exceptions specified in the paragraphs of that provision"243, 
and to ensure that a balance is struck between the right of a Member to invoke  an exception under 
Article  XX and the substantive rights of other Members under the GATT  1994.244  
5.96.   It follows from the relationship between the chapeau of Article  XX and the 
paragraphs  thereof that Article XX sets out a two-tier test for determining whether  a measure that 
would otherwise be inconsistent with GATT obligations can be justified under that provision . This 
test involves , first, an assessment of whether the measure falls under at least one  of the 
ten exceptions listed in the paragraphs of Article XX, and, second , an assessment of whether the 
measure satisfies the requirements of the chapeau of that provision.  This sequence reflects the 
fact that considering first the measure at issue under the applicable paragraphs of Article XX 
provides panels wit h the necessary tools to assess that measure under the chapeau of Article  XX. 
In particular, in the analysis  under the applicable paragraph , panels determine whether the 
objective of the measure at issue is one that is protected under the paragraphs of Art icle XX. If the 
measure is found to be provisionally justified under one of the paragraphs of Article XX, th at 
objective is then relevant in assess ing the measure under the chapeau . Other elements of the 
analysis under the applicable paragraphs of Article  XX might be relevant in assessing a measure 
under the chapeau .  
5.97.   The Appellate Body set out the sequence of analysis under Article XX for the first time in 
US – Gasoline245 and has, s ince then, recalled that sequence in a number of its reports.246 In  
US –Shrimp , the Appellate Body highlighted that this sequence  "reflects, not inadvertence or 
random choice, but rather the fundamental structure and logic of Article  XX".247 As the 
Appellate  Body stated, "[t]he task of interpreting the chapeau  so as to prevent the abuse or 
misuse of the specific exemptions provided for in Article  XX is rendered very difficult, if indeed it 
                                                
243 Appellate Body Report, Brazil – Retreaded Tyres , para.  227 (referring to Appellate Body Report,  
US – Gasoline , p. 22, DSR 1996:I, p. 21).  
244 Appellate Body Reports, EC – Seal Products, para. 5.297 (referring to Ap pellate Body Report,  
US – Shrimp , para. 156). See also para. 5.301.  
245 In US – Gasoline , the Appellate Body stated:  
In order that the justifying protection of Article XX may be extended to it, the measure at issue 
must not only come under one or another o f the particular exceptions – paragraphs (a) to (j) – 
listed under Article XX; it must also satisfy the requirements imposed by the opening clauses of 
Article XX. The analysis is, in other words, two -tiered: first, provisional justification by reason of 
characterization of the measure under XX(g); second, further appraisal of the same measure 
under the introductory clauses of Article XX.  
(Appellate Body Report, US – Gasoline , p. 22, DSR 1996:I, p. 20)  
246 In US – Shrimp  and Dominican Republic – Import and Sale of Cigarettes , the Appellate Body quoted 
the paragraph of the report in US – Gasoline setting out the sequence of analysis under Article XX.  
(Appellate  Body Reports, US – Shrimp , para.  118; Dominican Republic – Import and Sale of Cigarettes , 
para. 64 (both quoting Appellate Body Report, US – Gasoline , p. 22, DSR  1996:I, p.  20)) In Brazil – Retreated 
Tyres , the Appellate Body recalled:  
the analysis of a measure under Article XX of the GATT 1994 is two -tiered. First, a panel must 
examine whether the measure falls under at least one of the ten exceptions listed under 
Article  XX. Secondly, the question of whether the measure at issue satisf ies the requirements of 
the chapeau of Article XX must be considered.  
(Appellate Body Report, Brazil – Retreated Tyres , para. 139 (referring to Appellate Body Reports,  
US – Gasoline , p. 22, DSR  1996:I, p.  20; Dominican Republic – Import and Sales of Ciga rettes , para. 64;  
US –Shrimp , para. 149)) In the same vein, in EC – Seal Products , the Appellate Body found:  
As established in WTO  jurisprudence, the assessment of a claim of justification under Article  XX 
involves a two -tiered analysis in which a measur e must first be provisionally justified under 
one of the subparagraphs of Article  XX, before it is subsequently appraised under the chapeau of 
Article  XX. 
(Appellate Body Reports, EC – Seal Products , para.  5.169 (referring to Appellate Body Reports, US – Gasoline , 
p. 22, DSR 1996:I, p. 20; US – Shrimp , paras.  119 and  120; US – Gambling , para. 292)) More recently, in 
Colombia – Textiles , the Appellate Body stated:  
The analysis of a measure under Article  XX of the GATT  1994 is two -tiered, such that a panel 
must first examine whether the measure falls under one of the exceptions listed in the 
paragraphs of Article  XX, before considering the question of whether the measure satisfies the 
requirements of the chapeau  of Article  XX. 
(Appellate Body Report, Colombia  – Textiles , para.  5.67 (referring to Appellate  Body Reports, US – Gasoline , 
p. 22, DSR 1996:I, p.  20; Dominican Republic – Import and Sale of Cigarettes , para.  64; US – Shrimp , 
paras.  118-120; Brazil – Retreaded Tyres , para.  139))  
247 Appellate Body Report , US – Shrimp , para.  119. WT/DS477/AB/R • WT/DS478/AB/R  
 
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  remains possible at all, where the interpreter … has not first identifi ed and examined the specific 
exception threatened with abuse."248  
5.98.   Furthermore, the Appellate Body has recognized that the objective that is found to justify 
provisionally the measure at issue under a paragraph of Article XX is a relevant consideration to 
assess whether there is "arbitrary or unjustifiable discrimination between countries where the 
same con ditions prevail" pursuant to the chapeau of Article XX. Specifically, in Brazil – Retreaded 
Tyres , the Appellate Body stated that "[t]he assessment of whether discrimination is arbitrary or 
unjustifiable should be made in the light of the objective of the measure."249 The Appellate Body 
further noted that it would "have difficulty understanding how discrimination might be viewed as 
complying with the chapeau of Article XX when the alleged rationale for discriminating does not 
relate to the pursuit of or would  go against the objective that was provisionally found to justify a 
measure under a paragraph of Article  XX."250 
5.99.   In the same vein, in EC – Seal Products , the Appellate Body stated that the analysis of 
whether discrimination is arbitrary or unjustifiable with in the meaning of the chapeau  of Article  XX 
"should focus on the cause of the discrimination, or the rationale put forward to explain its 
existence".251 The Appellate Body added that "[o]ne of the most important factors in the 
assessment of arbitrary or unju stifiable discrimination is the question of whether the discrimination 
can be reconciled with, or is rationally related to, the policy objective with respect to which the 
measure has been provisionally justified under one of the subparagraphs of Article  XX."252 
Moreover, in that case, the Appellate  Body stated that , "in determining which 'conditions' 
prevailing in different countries are relevant in the context of the chapeau, the subparagraphs of 
Article  XX, and in particular the subparagraph under which a m easure has been provisionally 
justified, provide pertinent context ."253 In other words, the relevant "conditions" for the analysis 
under the chapeau  are the ones that relate to the particular policy objective under the applicable 
paragraph of Article  XX.254 The Appellate Body further recalled that the function of the chapeau  is 
to maintain the equilibrium between the obligations under the GATT 1994 and the exceptions 
provided under each paragraph of Article  XX. As the Appellate Body considered, this confirms that 
"the identification of the relevant 'conditions' under the chap eau should be understood by 
reference to the applicable subparagraph of Article  XX under which the measure was provisionally 
justified and the substantive obligations under the GATT 1994 with which a violation has been 
found."255 
5.100.   We accept that, depending on  the particular circumstances of the case at hand, including 
the way in which the defence is presented, a panel might be able to identify and analyse the 
elements under the applicable paragraphs of Article XX that are relevant to assess the 
requirements of  the chapeau  even when the sequence of analysis under Article  XX has not been 
followed. Therefore, depending on the particular circumstances of the case, a panel that deviates 
from the sequence of analysis under Article XX might not necessarily, for that r eason alone, 
commit a reversible legal error provided the panel has made findings on those elements under the 
applicable paragraphs that are relevant for its analysis of the requirements of chapeau . However, 
in light of our analysis above, we consider that  the task of assessing a particular measure under 
the chapeau  so as to prevent the abuse of the exceptions provided for in Article  XX is rendered 
difficult where the panel has not first identified and examined the specific exception at issue. 
Following the  normal sequence of analysis under Article  XX provides panels with the necessary 
tools to assess the requirements of the chapeau in respect of a particular measure. Moreover, a 
finding that a Member has failed to comply with the requirements of the applica ble paragraph of 
Article XX may not have the same implications regarding implementation as compared to a finding 
that a Member has failed to comply with the requirements of the chapeau .  
                                                
248 Appellate Body Report, US – Shrimp , para.  120.  
249 Appellate Body Report, Brazil – Retreaded Tyres , para.  227.  
250 Appellate Body Report, Brazil – Retreaded Tyres , para.  227.  
251 Appellate Body Reports, EC – Seal Products , para.  5.303 (quoting Appellate Body Report,  
Brazil  – Retreaded Tyres , para. 226, in turn referring to Appellate Body Reports, US – Gasoline ; US – Shrimp ;  
US – Shrimp (Article  21.5 – Malaysia) ). 
252 Appellate Body Reports, EC – Seal Products , para.  5.306 (referring to Appellate Body Reports,  
US – Shrimp , para. 165; Brazil  – Retreaded Tyres , paras. 227 -228 and 232).  
253 Appellate Body Reports, EC – Seal Products , para. 5.300.  
254 Appellate Body Reports, EC – Seal Products , para.  5.300.  
255 Appell ate Body Reports, EC – Seal Products , para.  5.301.  WT/DS477/AB/R • WT/DS478/AB/R  
 
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5.4.3   Conclusions  
5.101.   As discussed above, the normal sequence of analysis under  Article XX of the GATT 1994 
involves, first, an assessment of whether the measure at issue is provisionally justified under one 
of the paragraphs of Article XX and, second, an assessment of whether that measure also meets 
the requirements of the chapeau of Article  XX. This reflects "the fundamental structure and logic of 
Article  XX".256 It also comports with the function of the chapeau of Article XX, which is "to prevent 
abuse of the exceptions specified in the paragraphs of that provision"257, and to ensure t hat a 
balance is struck between the right of a Member to invoke an exception under Article  XX and the 
substantive rights of other Members under the GATT  1994.258 Depending on the particular 
circumstances of the case, a panel that deviates from the sequence o f analysis under Article XX 
might not necessarily, for that reason alone, commit a reversible legal error provided the panel 
has made findings on those elements under the applicable paragraphs that are relevant for its 
analysis of the requirements of the chapeau . However, following the normal sequence of analysis 
under Article XX provides panels with the necessary tools to assess the requirements of the 
chapeau .  
5.102.   Having made these observations, we note Indonesia's contention that it would not be 
possible fo r us to complete the legal analysis to determine whether Measures 9 through 17 are 
justified under Article XX(a), (b) , or (d)  of the GATT 1994 . According to Indonesia, there are 
"insufficient factual findings on the record" in respect of Measures  9 through  17 for us to do so.259 
We further note that, even if we were to accede to Indonesia's request on appeal and reverse the 
Panel's findings and conclusions under Article XX in respect of Measures 9 through  17 without 
completing the legal analysis, the Panel's findings that these measures are inconsistent with 
Article  XI:1 of the GATT  1994 would remain undisturbed.260  
5.103.   For this reason, we consider that a ruling on Indonesia's claim on appeal under Article  XX 
is unnecessary for the purposes of resolving this disput e. Therefore, we decline to rule  on 
Indonesia's claim on appeal under Article XX of the GATT 1994 and declare the Panel's finding that 
"Indonesia ha [d] failed to demonstrate that Measures  9 through  17 are justified under 
Articles  XX(a), (b) or (d) of the G ATT 1994, as appropriate", in paragraph 7.830 of the Panel 
Report261, moot and of no legal effect .  
6  FINDINGS AND CONCLUS IONS  
6.1.  For the reasons set out in this Report, the Appellate Body makes the following findings and 
conclusions.  
6.1  The Panel's decision to comm ence its legal analysis with the claims under 
Article  XI:1 of the GATT 1994  
6.2.  We consider that Article 4.2 of the Agreement on Agriculture does not apply "to the exclusion  
of"262 Article  XI:1 of the GATT 1994 in relation to the claims challenging the 18  measures at issue 
                                                
256 Appellate Body Report, US – Shrimp , para.  119. 
257 Appellate Body Report, Brazil – Retreaded Tyres , para.  227 (referring to Appellate Body Report,  
US –Gasoline , p. 22, DSR 1996:I, p. 21).  
258 Appellate Bo dy Reports, EC – Seal Products, para. 5.297 (referring to Appellate Body Report,  
US –Shrimp , para. 156). See also para. 5.301.  
259 Indonesia's appellant's submission, para.  161. At the oral hearing, New Zealand suggested that 
completing the legal analysis w ould contribute to providing sufficiently precise recommendations and rulings for 
the purposes of implementation. (New Zealand's response to questioning at the oral hearing). For its part, the 
United States clarified that, should we reverse the Panel's fin dings under Article XX of the GATT 1994 in 
respect of Measures 9 through 17, it is not requesting that we complete the legal analysis. Moreover, given the 
absence of a request for completion by Indonesia, the United States considers that completing the leg al 
analysis would not be necessary in this case. (United States' response to questioning at the oral hearing)  
260 On appeal, the United States notes that Indonesia does not request that we complete the legal 
analysis and find that any of Indonesia's measures  are justified under Article XX of the GATT 1994. According 
to the United States, "Indonesia's appeal could result in no change to the DSB recommendations and rulings, 
or Indonesia's obligations regarding implementation, because the findings under Article XI:1 will remain 
undisturbed. " Consequently, the United States submits that it is not necessary for us to consider Indonesia's 
appeal under Article XX of the GATT 1994. (United States' appellee's submission, paras. 168 -169) 
261 See also Panel Report, para. 8 .1.c.vi.  
262 Indonesia's appellant's submission, para. 53. (emphasis original)  WT/DS477/AB/R • WT/DS478/AB/R  
 
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  as quantitative restrictions. Both provisions contain the same substantive obligations in relation to 
these claims263 and, thus, in these circumstances, they apply cumulatively. Moreover, there is no 
mandatory sequence of analysis between Article  4.2 of the Agreement on Agriculture and 
Article  XI:1 of the GATT 1994 in this dispute , and the decision as to whether to commence the 
analysis with the claims under Article XI:1 or those under Article 4.2 was within the Panel's margin 
of discretion. We also consider that Indonesia has not substantiated its claim under Article  11 of 
the DSU that the Panel failed to make an objective assessment of the applicability of Article  4.2 of 
the Agreement on Agriculture.  
a. Therefore, we reject  Indonesia's claim that the Panel erred in assessing the claims 
regarding the measures at issue under Article XI:1 of the GATT 1994, rather than 
Article  4.2 of the Agreement on Agriculture.  
b. In additi on, we find that Indonesia has not demonstrated that the Panel acted 
inconsistently with Article  11 of the DSU by failing to make an objective assessment of 
the applicability of Article 4.2 of the Agreement on Agriculture.  
c. Consequently, we uphold  the Pane l's decision, in paragraph 7.33 of the Panel Report, to 
commence its examination with Article XI:1 of the GATT 1994.  
6.2  Whether the Panel erred in determining that Indonesia bears the burden of proof 
under the second part of footnote 1 to Article  4.2 of the A greement on Agriculture  
6.3.  Article 4.2 of the Agreement on Agriculture and footnote 1 thereto, read in their relevant 
context, do not suggest that the nature of Article XX of the GATT 1994 as an affirmative defence  is 
modified by virtue of its incorporation i nto the second part of footnote 1  to Article 4.2 . In addition, 
we consider that Indonesia has not substantiated its claim under Article 11 of the DSU that the 
Panel failed to conduct an objective assessment of which party bears the burden of proof under 
the second part of footnote 1 to Article 4.2.  
a. Therefore, we find that the burden of proof under Article XX  of the GATT 1994  remains 
with the respondent even when Article XX is applied thro ugh the reference in the 
second  part of footnote 1 to Article  4.2 of t he Agreement on Agriculture.  
b. In addition, we find that Indonesia has not demonstrated that the Panel acted 
inconsistently with Article  11 of the DSU by failing to make an objective assessment of 
which party bears the burden of proof under the second part of footnote 1 to Article 4.2 
of the Agreement on Agriculture.  
c. Consequently, we uphold  the Panel's finding, in paragraph 7.34 of the Panel Report, that 
the burden of proof under Article XX of the GATT 1994 referred to in the second part of 
footnote 1 to Art icle 4.2 of the Agreement on Agriculture rests on Indonesia.  
6.4.  With respect  to Indonesia's request to reverse the Panel's finding in paragraphs 7.833 and 
8.2 of the Panel Report264, which pertain s to the Panel's exercise of judicial economy with respect 
to Article 4.2 of the Agreement on Agriculture, Indonesia has not explained how the alleged error 
by the Panel in connection with the allocation of the burden of proof under the second part of 
footnote  1 to Article  4.2 leads to the conclusion that the Panel err ed in exercising judicial economy. 
In any event, as we have found that the burden of proof under Article XX of the GATT 1994 
remains with the respondent also in the context of Article 4.2 of the Agreement on Agriculture and 
footnote 1 thereto, we see no re ason to disturb the Panel's decision to exercise judicial economy 
with respect to the co -complainants' claims under Article 4.2 of the Agreement on Agriculture.  
a. Therefore, we reject  Indonesia's request to reverse the Panel's finding in 
paragraphs  7.833 an d 8.2 of the Panel Report.  
                                                
263 See also section 6.2  below.  
264 Indonesia's appellant's submission, paras. 95 and 107 . WT/DS477/AB/R • WT/DS478/AB/R  
 
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6.3  Indonesia's alternative claim that the Panel erred in finding that Article XI:2(c) of 
the GATT 1994 has been rendered "inoperative " by Article 4.2 of the Agreement on 
Agriculture  
6.5.  We disagree with Indonesia that agricultural measu res maintained under Article  XI:2(c) of 
the GATT  1994 are not "quantitative import restrictions" within the meaning of the first part of 
footnote 1 to Article 4.2 of the Agreement on Agriculture.  
a. Therefore, we find that the prohibition of "quantitative im port restrictions" under 
Article  4.2 of the Agreement on Agriculture extends to measures satisfying the 
requirements of Article XI:2(c) of the GATT 1994.  
b. We further find that, by virtue of Article 21.1 of the Agreement on Agriculture, 
Article  XI:2(c) of the GATT 1994 cannot be relied upon to justify or exempt quantitative 
import restrictions that are inconsistent with Article  4.2 of the Agreement on Agriculture.  
6.6.  In addition, the Panel's findings that Measures 4, 7, and 16 are quantitative restrictions  on 
the importation of agricultural products inconsistent with Article XI:1 of the GATT 1994 would lead 
to the conclusion that these measures also fall within the prohibition of qu antitative import 
restrictions under Article 4.2 of the Agreement on Agriculture . This conclusion does not change 
regardless of whether Article  XI:2(c) is being invoked by Indonesia in relation to Article XI:1 or 
Article 4.2.  
a. Consequently, we uphold  the P anel's finding, in paragraph 7.60 of the Panel Report, to 
the extent that it states that, by virtue of Article 21.1 of the Agreement on Agriculture, 
Article XI:2(c) of the GATT 1994 cannot be relied upon to justify or exempt measures 
falling within the pro hibition of quantitative import restrictions under Article 4.2 of the 
Agreement on Agriculture.   
6.4  Indonesia's claim under Article XX of the GATT 1994  
6.7.  The normal sequence of analysis under Article XX of the GATT 1994 involves, first, an 
assessment of whether  the measure at issue is provisionally justified under one of the paragraphs 
of Article XX and, second, an assessment of whether that measure also meets the requirements of 
the chapeau of Article  XX. This reflects "the fundamental structure and logic of Ar ticle XX".265 It 
also comports with the function of the chapeau of Article XX, which is "to prevent abuse of the 
exceptions specified in the paragraphs of that provision"266, and to ensure that a balance is struck 
between the right of a Member to invoke an exc eption under Article  XX and the substantive rights 
of other Members under the GATT  1994.267 Depending on the particular circumstances of the case, 
a panel that deviates from the sequence of analysis under Article XX might not necessarily, for 
that reason alo ne, commit a reversible legal error provided the panel has made findings on those 
elements under the applicable paragraphs that are relevant for its analysis of the requirements of  
the chapeau . However, following the normal sequence of analysis under Artic le XX provides panels 
with the necessary tools to assess the requirements of the chapeau .  
6.8.  Having made these observations, we note Indonesia's contention that it would not be 
possible for us to complete the legal analysis to determine whether Measures 9 th rough 17 are 
justified under Article XX(a), (b) , or (d)  of the GATT 1994 . According to Indonesia, there are 
"insufficient factual findings on the record" in respect of Measures  9 through  17 for us to do so .268 
We further note that, even if we were to accede to Indonesia's request on appeal and reverse the 
Panel's findings and conclusions under Article XX in respect of Measures 9 through  17 without  
 
  
                                                
265 Appellate Body Report, US – Shrimp , para.  119. 
266 Appellate Body Report, Brazil – Retreaded Tyres , para.  227 (referring to Appellate Body Report,  
US – Gasoline , p. 22, DSR 1996:I, p. 21).  
267 Appellate Body Reports, EC – Seal Products, para. 5.297 (referring to Appellate Body Report,  
US – Shrimp , para. 156). See also para. 5.301.  
268 Indonesia's appellant's submission, para.  161.