WT/DS442/5  
 
14 February 2017  
(17-0881) Page: 1/3 
  Original: English   
 
 EUROPEAN UNION – ANTI -DUMPING MEASURES ON IMPORTS OF  
CERTAIN FATTY ALCOHO LS FROM INDONESIA  
NOTIFICATION OF AN A PPEAL BY INDONESIA  
UNDER ARTICLE 16.4 A ND ARTICLE 17 OF THE  UNDERSTANDING ON RUL ES 
AND PROCEDURES GOVER NING THE SETTLEMENT OF DISPUTES (DSU),  
AND UNDER RULE 20(1) O F THE WORKING PROCED URES FOR APPELLATE R EVIEW  
The following communication, dated 10 February 2017, from the delegation of Indonesia, is  being 
circulated to Members.  
 
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Pursuant to Articles 16.4 and 17 of the Understandin g on Rules and Procedures Governing the 
Settlement of Disputes (DSU) and Rule 20 of the Working Procedures for Appellate Review, 
Indonesia hereby notifies the Dispute Settlement Body of its deci sion to appeal to the 
Appellate  Body certain issues of law and  legal interpretation covered in the Panel Report entitled 
European  Union — Anti-Dumping Measures on Imports of Certain Fatty Alcohols from Indonesia 
(WT/DS442), which was circulated on 16 December 2016 (the "Panel Report"). Pursuant to 
Rules  20(1) and 21( 1) of the Working Procedures for Appellate Review, Indonesia is 
simultaneously filing this Notice of Appeal and its Appellant's Submission with the 
Appellate  Body Secretariat.  
For the reasons to be further elaborated in its submission to the Appellate Body , Indonesia appeals 
and requests the Appellate Body to reverse the findings, conclusions, and recommendations of the 
Panel, with respect to the following errors contained in the Panel Report:1 
I. The Panel's finding under Article 2.4 of the Anti -Dumping Agree ment  
1. The Panel erred in the interpretation and application of Article 2.4 of the 
Anti-Dumping  Agreement when finding that Indonesia had not demonstrated that, in its 
determinations in the anti -dumping investigation at issue in this dispute, the EU Commiss ion had 
not acted inconsistently with this provision by making an adjustment to the export price for one of 
the investigated producer/exporters to account for intra -company transfers between the producer 
and its closely affiliated sales entity.2  
2. In partic ular, and without prejudice to the arguments developed in Indonesia's appellant's 
submission, the Panel incorrectly interpreted and applied Article 2.4 by not addressing Indonesia's 
arguments or taking into account the need to determine whether a closely a ffiliated sales entity is 
in a sufficiently close relationship to the producing entity to warrant being treated as a single 
producer/exporter for the purpose of its price comparison analysis.3 
                                                
1 Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for Appellate Review, this Notice of Appeal 
includes an indicative list of the paragraphs of the Panel Report containing the alleged errors, without prejudice 
to Indonesia's right to refer to other paragraphs of the Panel Report in the context of its appeal.  
2 Panel Report, paras. 7.96 -7.97, 7.160 -7.161, and 8.1(b)(i).  
3 Panel Report, paras. 7.54 -7.97. WT/DS442/5  
 
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  3. The Panel also incorrectly interpreted and applied Article 2.4 by concluding that the 
relationship between closely affiliated entities is not relevant to the determination of price 
adjustments and a fair comparison between export price and normal value under Article 2.4.4 
4. The Panel also incorrectly interpreted and app lied Article 2.4 by concluding that it is 
permissible to deduct the profits and indirect selling expenses of a closely affiliated sales entity 
from the export price under Article 2.4.5 
5. The Panel also incorrectly interpreted and applied Article 2.4 by findi ng that the deduction of 
certain indirect selling expenses and profit from the export price while no corresponding 
deductions were made from the normal value did not result in an asymmetrical, unfair comparison 
under Article 2.4.6 
6. The Panel also incorrectl y interpreted and applied Article 2.4 by finding that it was 
permissible to make deductions from the export price for indirect selling expenses and, in 
particular, profit on the basis of what the investigating authority considered to be reasonable for 
the sector at issue.7 
7. The Panel also incorrectly interpreted and applied Article 2.4 by dismissing the relevance of 
the Commission's decision to treat the producer and its closely affiliated sales entity as a single 
entity for the purpose of identifying the st arting price for the dumping analysis.8 
II. The Panel's duties under Article 17.6 of the Anti -Dumping Agreement and 
Article  11 of the DSU  
8. The Panel also acted inconsistently with Articles 17.6(i) a nd 17.6(ii) of the 
Anti-Dumping  Agreement, as well as Article 11 of the DSU, by reaching a conclusion that the 
measures at issue were consistent with Article 2.4 of the Anti -Dumping Agreement without first 
considering Indonesia's arguments and evidence.9 Specifically, the Panel act ed inconsistently with 
Articles  17.6(ii) of the Anti -Dumping Agreement, as well as Article 11 of the DSU, by failing to 
consider Indonesia's legal arguments and failing to interpret Article 2.4 in accordance with 
customary rules of interpretation of public international law, thereby failing to make an objective 
assessment of the matter, including the applicability and the conformity of the measures at issue. 
The Panel also acted inconsistently with Articles 17.6(i) a nd 17.6(ii) of the 
Anti-Dumping  Agreement, as well as Article 11 of the DSU, by applying the legal standard that it 
articulated without considering Indonesia's arguments and evidence, reaching a conclusion of 
WTO consistency on that basis and subsequently imposing on Indonesia the burden of disproving 
the Panel's finding.10  
9. The Pan el also acted inconsistently with Articles 17.6(i) a nd 17.6(ii) of the 
Anti-Dumping  Agreement, as well as Article 11 of the DSU, by engaging in prohibited de novo 
review of the evidence, and by ignoring or summarily dismissing material arguments and eviden ce 
that favoured Indonesia's case.11  
III. Request for findings and completion of the analysis  
10. For the above reasons, Indonesia, therefore, respectfully requests the Appellate Body to 
reverse the Panel 's finding contained in paragraphs 7.96 -7.97, 7.160 -7.161, a nd 8.1(b)(i) of the 
Panel Report, that the EU Commission did not act inconsistently with A rticle 2.4 of the 
Anti-Dumping Agreement.   
                                                
4 Panel Report, paras. 7.99 -7.111.  
5 Panel Report, paras. 7.112 -7.117.  
6 Panel Report, paras. 7.118 -7.125.  
7 Panel Report, paras. 7.126 -7.130.  
8 Panel Report, footnote 366.  
9 Panel Report, paras. 7.54-7.97. 
10 Panel Report, paras. 7.97, 7.110, and 7.149.  
11 Panel Report, paras . 7.84 and footnote 277 and paras. 7.85, 7.119, and 7.120.  WT/DS442/5  
 
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  11. Indonesia also respectfully requests the Appellate Body to find that the Panel acted 
inconsistently with Article 11 of the  DSU and Article 17.6(ii) of the Anti -Dumping Agreement for 
the reasons provided in section II of this Notice of Appeal.  
12. Finally, Indonesia requests the Appellate Body to complete the legal analysis and find that 
the EU Commission acted inconsistently wit h Article 2.4 of the Anti -Dumping Agreement in its 
determination of dumping margins in the underlying investigation. The factual findings contained 
in the Panel Report, as well as the undisputed facts on the record in the determinations of the 
EU Commissio n, constitute a sufficient basis to conclude that the measures at issue were 
inconsistent with Article 2.4 of the Anti -Dumping Agreement.  
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