WT/DS477/AB/R/Add.1  
WT/DS478/AB/R/Add.1  
9 November 2017  
(17-6042) Page: 1/26 
  Original: English  
 
INDONESIA – IMPORTATION OF HORTI CULTURAL PRODUCTS,  
ANIMALS AND ANIMAL P RODUCTS  
AB-2017-2 
Report of the Appellate  Body 
Addendum  
This Addendum contains Annexes A to C to the Report of the Appellate Body  circulated as  
document WT/DS477/AB/R and WT/DS478/AB/R , and is an integral part that R eport . 
 
 
The Notice of Appeal and the executive summaries of written submissions contained in this 
Addendum are attached as they were received from the participants and third participants. The 
content has not been revised o r edited by the Appellate Body, except that paragraph and footnote 
numbers that did not start at one in the original may have been re -numbered to do so, and the 
text may have been formatted in order to adhere to WTO style. The executive summaries do not 
serve as substitutes for the submissions of the participants and thir d participants in the 
Appellate  Body's examination of the appeal.  
 
 
_______________  WT/DS477/AB/R/Add.1 • WT/DS478/AB/R/Add.1  
 
- 2 - 
 
LIST OF ANNEXES  
ANNEX A  
NOTICE OF APPEAL   
Contents  Page  
Annex  A-1 Indonesia 's Notice of Appeal  A-2 
ANNEX B 
ARGUMENTS OF THE PAR TICIPANTS  
Contents  Page  
Annex  B-1 Executive summary of Indonesia 's appell ant's submission  B-2 
Annex  B-2 Executive summary of New Ze aland's appellee's  submission  B-6 
Annex  B-3 Executive summary of the United States ' appellee's submission  B-10 
ANNEX C  
ARGUMENTS OF THE THI RD PA RTICIPANTS  
Contents  Page  
Annex  C-1 Executive summary of Australia's third participant's submission  C-2 
Annex  C-2 Executive summary of Brazil 's third participant's submission  C-3 
Annex  C-3 Executive summar y of Canada 's third participant's submission  C-4 
Annex  C-4 Executive summary of the European Union 's third participant's submission  C-5 
 WT/DS477/ AB/R/Add.1 • WT/DS478/ AB/R/Add.1  
 
- A-1 - 
 
 
ANNEX A  
NOTICE OF APPEAL   
Contents  Page  
Annex  A-1 Indonesia 's Notice of Appeal  A-2 
 WT/DS477/AB/R/Add.1 • WT/DS478/AB/R/Add.1  
 
- A-2 - 
 
ANNEX  A-1 
INDONESIA 'S NOTICE  OF APPEAL 
Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes (DSU) and Rule 20 of the Working Procedures for Appellate Review, 
Indonesia hereby notifies the Dispute Settlement Body of its de cision to appeal to the 
Appellate  Body certain issues of law and legal interpretation covered in the Panel Report entitled 
Indonesia — Importation of Horticultural Products, Animals and Animal Products 
(WT/DS477/R,  WT/DS478/R), which was circulated on 22  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 with the Appellate Body Secretariat.  
 
For the reasons to be further elaborated in its submission to the Appellate Body, Indonesia 
appeals, and requests the Appellate Body to modify or reverse legal interpretations leading to the 
legal findings and conclusions of the Panel, with respect to the following errors contained in the 
Panel Repo rt:1 
 
I. The Panel's findings and conclusions under Article XI:1 of the GATT 1994  
The Panel erred in law in finding that Article XI:1 of the GATT 1994 deals more specifically with 
quantitative import restrictions on agricultural goods than Article 4.2 of the  Agreement on 
Agriculture. In particular, the Panel failed to apply the principle of lex specialis derogat lege 
generali  as reflected in Article 21.1 of the Agreement of Agriculture.  
 
Indonesia, therefore, requests the Appellate Body to reverse the Panel's  conclusions and the 
Panel's legal interpretations contained in paragraphs 7.31 -7.33 of the Panel Report. In addition, 
Indonesia requests the Appellate Body 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, and 7.501 as well as paragraph 8.1.b of its Report.  
 
II. The Panel's findings and conclusions under Article 4.2 of the Agreement on 
Agriculture  
The Panel further erred in law in allocating the bu rden of proof to Indonesia under the second 
element in footnote 1 to Article 4.2 of the Agreement on Agriculture. To make a prima facie  case 
under Article 4.2 of the Agreement on Agriculture, a complainant must demonstrate both elements 
set out in footnote  1 to Article 4.2 of that agreement. It must show that the measure at issue is of 
the type required to be converted into ordinary customs duties, such as a quantitative import 
restriction, and that it is not maintained under, inter alia , any of the public policy exceptions set 
out in Article XX of the GATT 1994.  
 
Indonesia, therefore, requests the Appellate Body to reverse the Panel's conclusions and the 
Panel's legal interpretations contained in paragraphs 7.34 and 7.833 of the Panel Report. In 
addition, I ndonesia requests the Appellate Body to reverse the Panel's finding in paragraph 8.2.  
 
                                                
 This document , dated  17 February 2017 , was circulated to Members as document WT/DS 477/11 and 
WT/DS478/11.  
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 o f 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.  WT/DS477/ AB/R/Add.1 • WT/DS478/ AB/R/Add.1  
 
- A-3 - 
 
III. The Panel's failure to make an objective assessment under Article 11 of the 
Understanding on Rules and Procedures Governing the Settlement of Disputes 
(DSU)  
The Panel f ailed to conduct an objective assessment of the applicability of the covered agreements 
or of the conformity of the Indonesian measures at issue with the covered agreements, as required 
by Article 11 of the DSU. The Panel did not examine the co -complainant s' claims under Article 4.2 
of the Agreement on Agriculture, which was the applicable agreement. The Panel failed to conduct 
an objective assessment of the applicability of Article 4.2 of the Agreement on Agriculture and to 
allocate the proper burden of pr oof under the second element of footnote 1 to Article 4.2 of the 
Agreement on Agriculture.  
 
Indonesia, therefore, requests the Appellate Body to reverse the Panel's conclusions and the 
Panel's legal interpretations contained in paragraphs 7.31 -7.34 and 7.8 33 of the Panel Report. In 
addition, Indonesia requests the Appellate Body 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, as well as  paragraphs 8.1.b and 8.2 of its Report.  
 
IV. The Panel's conclusion under Article XI:2(c) of the GATT 1994  
Indonesia considers that the Panel's conclusion that Article XI:2(c) of the GATT  1994 has been 
rendered inoperative by Article 4.2 of the Agreement on A griculture has systemic implications for 
all WTO Members. If 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 
submits an alternative  claim of legal error that the Panel erred in its conclusion under 
Article  XI:2(c) of the GATT 1994.  
 
Indonesia, therefore, requests the Appellate Body to reverse the Panel's conclusion and the Panel's 
legal interpretation contained in paragraphs 7.59 and 7.60 of the Panel Report.  
 
V. The Panel's findings and conclusions under Article XX of the GATT 1994  
With respect to Measures 9 through 17, Indonesia submits that the Panel assessed only the 
requirements under the chapeau to Article XX of the GATT 1994. It d id not assess any of the 
defences put forward by Indonesia under the applicable subparagraphs of Article XX before making 
its findings that "Indonesia has failed to demonstrate that Measures 9 to 17 are justified under 
Article XX(a), (b) or (d) of the GATT , as appropriate".  
 
Indonesia, therefore, requests the Appellate Body to reverse the Panel's conclusions and the 
Panel's legal interpretations contained in paragraphs 7.824, 7.826, 7.827 and 7.829 of the 
Panel  Report. In addition, Indonesia notes that the above grounds of appeal are without prejudice 
to the arguments developed in Indonesia's Appellant's Submission.  
 
 
_______________  
 
 
 
 WT/DS477/ AB/R/Add.1 • WT/DS478/ AB/R/Add.1  
 
- B-1 - 
 
ANNEX B  
ARGUMENTS OF THE  PARTICIPANTS  
Contents  Page  
Annex  B-1 Executive summary of Indonesia' s appellant's submission  B-2 
Annex  B-2 Executive summary of New Ze aland's appellee's  submission  B-6 
Annex  B-3 Executive summary of the United State s' appellee's submission  B-10 
 WT/DS477/AB/R /Add.1 • WT/DS478/AB/R/Add.1  
 
- B-2 - 
 
ANNEX  B-1 
EXECUTIVE SUMMARY OF  INDONESIA'S APPELLAN T'S SUBMISSION  
I. INTRODUCTION1  
1. In this dispute,  New Zealand and the United States challenged 18 Indonesian measures 
concerning Indonesia's import licensing regimes for horticultural products and animals and animal 
products, which fell within the scope of Annex 1 to the Agreement on Agriculture. The 
co-complainants brought identical claims and made identical arguments that the 18 measures at 
issue were quantitative restrictions that were inconsistent with both Article XI:1 of the GATT 1994 
and Article 4.2 of the Agreement on Agriculture.2 The Panel comme nced its legal analysis with the 
claims under Article XI:1 of the GATT 1994,3 and then exercised judicial economy with respect to 
all identical claims under Article 4.2 of Agreement on Agriculture.4 The Panel found in favour of the 
co-complainants on all t heir claims that the 18 Indonesian measures at issue were quantitative 
import restrictions.  
2. Indonesia considers that, in arriving at its findings and conclusions, the Panel incorrectly 
applied principles of treaty interpretation and committed grave errors  of law.  
II. THE PANEL ERRED I N DETERMINING THAT A RTICLE XI:1 OF THE G ATT 1994 IS 
MORE SPECIFIC THAN A RTICLE 4.2 OF THE AG REEMENT ON AGRICULTU RE 
3. Indonesia submits that the Panel erred in determining that the provision which dealt 
specifically with quantit ative 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.  
4. Indonesia submits that the Panel's decision was an e rror because it did not consider the 
following aspects: (a) the number of measures covered by a provision is not determinative of 
whether it regulates quantitative import restrictions on agricultural products in a more specific 
manner, (b) the product cove rage of a provisions may be used to determine whether it regulates 
quantitative import restrictions on agricultural products in a more specific manner, (c) the 
GATT  1994 applies "subject to" the Agreement on Agriculture pursuant to Article 21.1 of the 
Agreement on Agriculture, and, (d) the Agreement on Agriculture deals specifically with 
quantitative import restrictions on agricultural products.   
5. Therefore, Indonesia submits that the Panel's conclusion that the GATT 1994 is the more 
specific agreement than the Agreement on Agriculture was a legal error. The Panel further erred 
by not applying Article 21.1 of the Agreement on Agriculture to determine that Article 4.2 of that 
Agreement was lex specialis .  
6. For all the above reasons, the Panel erred in law in fi nding that Article XI:1 of the 
GATT  1994 deals more specifically with quantitative import restrictions on agricultural goods than 
Article 4.2 of the Agreement on Agriculture.  
7. Indonesia, therefore, requests the Appellate Body to reverse the Panel's conclus ions and the 
Panel's legal interpretations contained in paragraphs 7.31 -7.33 of the Panel Report. In addition,  
                                                
1 This Executive Summary contains a total of 1911 words (including footnotes). Indonesia 's Appellant's 
Submission contains a total of 19441 words (including footnotes).  
2 These 18 measures are summarised in Panel Report, Indonesia – Import Licensing Regimes 
(New Zealand)(United States) , para. 2.32. The co -complainants also brought claims unde r Article 3.2 of the 
Import Licensing Agreement against measures 1 and 2. New Zealand also brought a claim under Article III:4 of 
the GATT 1994 against measures 6, 14 and 15.  
3 Panel Report, Indonesia – Import Licensing Regimes (New Zealand)(United States ), para. 7.33.  
4 Panel Report, Indonesia – Import Licensing Regimes (New Zealand)(United States) , paras. 7.832 and 
7.833.  WT/DS477/ AB/R/Add.1 • WT/DS478/ AB/R/Add.1  
 
- B-3 - 
 
Indonesia requests the Appellate Body to reverse the Panel's findings in paragraphs 7.92, 7.112, 
7.134, 7.156, 7.179, 7.200, 7.227, 7.243, 7.27 0, 7.299, 7.327, 7.349, 7.375, 7.398, 7.428, 
7.451, 7.478, and 7.501 as well as paragraph 8.1.b of its Report.  
III. THE PANEL ERRED IN D ETERMINING THAT INDO NESIA BORE THE BURDE N OF 
PROVING THE SECOND E LEMENT OF FOOTNOTE 1  TO ARTICLE 4.2 OF TH E 
AGREEMENT ON  AGRICULTURE   
8. In the course of the proceedings, the co -complainants and Indonesia disagreed on the 
allocation of the burden of proof under the second element of footnote 1 to Article 4.2 of the 
Agreement of Agriculture. Indonesia considers that in order to  make a prima facie  case under 
Article 4.2 of the Agreement on Agriculture, a complainant must demonstrate both elements set 
out in footnote 1 to Article 4.2 of that agreement.  
9. The Panel exercised judicial economy on the claims under Article 4.2 of the Ag reement on 
Agriculture.5 However, it agreed with the co -complainants that the burden of proof under the 
second element of footnote 1 to Article 4.2 would fall on Indonesia. The Panel's conclusion on the 
allocation of the burden resulted in legal error. Ind onesia submits that the second element of 
footnote 1 is not an "exception" , but rather one of the elements that a complainant has to show in 
order to make a prima facie  case of violation under Article 4.2 of the Agreement on Agriculture.  
10. Thus, Indonesia ap peals the Panel's conclusion that the respondent bears the burden of 
proof under the second element of footnote 1 to Article 4.2 of the Agreement on Agriculture.6 It 
considers that the Panel's conclusion impaired Indonesia's due process rights as the Panel  
inappropriately shifted the burden of proof under the second element of footnote 1 to Article 4.2 of 
the Agreement on Agriculture from the complainants to Indonesia.  
11. Indonesia, therefore, requests the Appellate Body to reverse the Panel's conclusions and  the 
Panel's legal interpretations contained in paragraphs 7.34 and 7.833 of the Panel Report. In 
addition, Indonesia requests the Appellate Body to reverse the Panel's findings in paragraphs 8.2.  
IV. THE PANEL FAILED TO MAKE AN OBJECTIVE AS SESSMENT UNDER  ARTICLE 11 OF 
THE DSU WITH RESPECT  TO THE APPLICABILITY  OF ARTICLE 4.2 OF TH E 
AGREEMENT ON AGRICUL TURE   
12. Indonesia submits that the Panel did not conduct an objective assessment of the 
applicability of the covered agreements or of the conformity of the mea sures at issue with the 
covered agreements because it did not examine the co -complainants' claims under Article 4.2 of 
the Agreement on Agriculture. By addressing Article XI:1 of the GATT 1994 alone and exercising 
judicial economy under the Agreement on Ag riculture, the Panel failed to apply Article 4.2 of the 
Agreement on Agriculture, which was the more specific agreement with respect to quantitative 
import restrictions on agricultural products. The Panel also did not conduct an objective 
assessment of whi ch party bears the burden of proof with respect to the second element of 
footnote 1 to Article 4.2 of the Agreement on Agriculture.  
13. Indonesia, therefore, requests the Appellate Body to reverse the Panel's conclusions and the 
Panel's legal interpretations contained in paragraphs 7.31 -7.34 and 7.833 of the Panel Report. In 
addition, Indonesia requests the Appellate Body 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, 7.39 8, 
7.428, 7.451, 7.478, 7.501, as well as paragraphs 8.1.b and 8.2 of its Report.  
                                                
5 See Panel Report, Indonesia – Import Licensing Regimes (New Zealand)(United States) , paras. 7.833 
and 8.2.  
6 Panel Report, Indonesi a – Import Licensing Regimes (New Zealand)(United States) , para. 7.734.  WT/DS477/AB/R /Add.1 • WT/DS478/AB/R/Add.1  
 
- B-4 - 
 
V. IN THE ALTERNATIVE, THE PANEL ERRED IN C ONCLUDING THAT ARTIC LE XI:2(C) 
OF THE GATT 1994 HAS  BEEN RENDERED INOPER ATIVE BY ARTICLE 4.2  OF THE 
AGREEMENT ON AGRICUL TURE   
14. Indonesia considers that the Panel's conclusion that Article XI:2(c) has been rendered 
inoperative by Article 4.2 of the Agreement on Agriculture has systemic implications for all 
WTO Members.7 The importance of maintaining recourse to Article XI:2(c) is of im portance to the 
Government of Indonesia.  
15. If the Panel were correct that Article XI:1 of the GATT 1994 is the more specific agreement 
that deals specifically with quantitative restrictions, Indonesia submits that the Panel erred in its 
legal interpretation  that Article XI:2(c) of the GATT 1994 has been rendered inoperative by 
Article  4.2 of the Agreement on Agriculture. In arriving at its conclusion, the Panel fundamentally 
misunderstood the role and function of Article XI:2(c) of the GATT 1994. Indonesia c onsiders that 
Article XI:2(c) of the GATT 1994 is not an "exception" to the obligations under Article XI:1 of the 
GATT 1994. Rather, it is a "scope" provision, which defines the circumstances under which 
WTO Members have the right to apply quantitative res trictions, which they would otherwise be 
required to eliminate.  
16. Moreover, Article 3.2 of the Understanding on  Rules and Procedures Governing the 
Settlement of Disputes  (DSU) provides that "Recommendations and rulings of the DSB cannot add 
to, or diminish the rights and obligations provided in the covered agreements". The Panel's 
conclusion that Article XI:2(c) of the GATT 1994 has been rendered inoperative by virtue of 
Article  4.2 of the Agreement on Agriculture diminishes the rights of WTO Members under t he 
GATT  1994.  
17. Indonesia submits that the Panel erred in law in finding that Article XI:2(c) of the 
GATT  1994 has been rendered inoperative by virtue of Article 4.2 of the Agreement on Agriculture. 
Indonesia, therefore, requests the Appellate Body to rever se the Panel's conclusion in 
paragraph  7.60 of the Panel Report.  
VI. THE PANEL ERRED IN F INDING THAT INDONESI A FAILED TO DEMONSTR ATE THAT 
MEASURES 9 THROUGH 1 7 WERE JUSTIFIED UND ER ARTICLE XX OF THE  GATT 
1994 AS IT DID NOT E XAMINE WHETHER THESE  MEASURES W ERE PROVISIONALLY 
JUSTIFIED UNDER THE APPLICABLE SUBPARAGR APHS  
18. The Panel's finding that Indonesia has failed to demonstrate that measures 9 through 17 
were justified under Article XX(a), (b) or (d) of the GATT 1994, as appropriate, was in error8 
because th e Panel did not examine whether these measures were provisionally justified under the 
relevant subparagraphs of Article XX of the GATT.  
19. The Panel justified its approach by noting that Indonesia submitted its defences under the 
chapeau with respect to its i mport licensing regime for horticultural products and animals and 
animal products as a whole. It stated "we are driven to follow the same approach in our analysis."9  
20. In the light of the principle of jura novit curia , the Panel was not "driven" to follow t he same 
approach as Indonesia. It is the duty of the court itself to ascertain and apply the relevant law in 
the given circumstances of the case as the law lies within the judicial knowledge of the court.10 
WTO case law provides clear guidance on how panels  must approach a respondent's defence under 
Article XX, including the mandatory sequence of the analysis required by the text and overall 
                                                
7 Panel Report, Indonesia – Import Licensing Regimes (New Zealand)(United States) , paras. 7.59 -7.60 
8 Panel Report, Indonesia – Import Licensing Regimes (New Zealand)(United States) ,  
paras. 7.829 -7.830 (emphasis added).  
9 Panel Report, Indonesia – Import Licensing Regimes (New Zealand)(United States) ,  
paras. 7.569 and 7.805.  
10 See e.g. Appellate Body Report, EC – Tariff Preferences , para. 105 and footnote 220 referring to 
Internationa l Court of Justice, Merits, Fisheries Jurisdiction Case (United Kingdom of Great Britain and 
Northern  Ireland v. Iceland), 1974 ICJ Reports, p. 9, para. 17 . WT/DS477/ AB/R/Add.1 • WT/DS478/ AB/R/Add.1  
 
- B-5 - 
 
structure of this provision. In fact, when it comes to matters of legal interpretation, it is for a panel 
to develop i ts own legal reasoning independently of what is put forward by any party.11 
21. Indonesia submits that the Panel's findings and conclusions with respect to measures 9 
through 17 resulted in an error of law. Indonesia, therefore, requests the Appellate Body to 
reverse the Panel's conclusion in paragraphs 7.824, 7.826, 7.827 and 7.829 and reverse the 
Panel's findings in paragraphs 7.830 and 8.1.c of the Panel Report.  
VII. CONCLUSION  
22. For the reasons above, Indonesia requests the Appellate Body to reverse the Panel' s specific 
conclusions and findings as set out above.  
 
 
 
 
 
                                                
11 See Panel Report, EC – Export Subsidies , footnote 437. See also Appellate Body Report, EC – 
Hormo nes, para. 156 (emphasis added).  WT/DS477/AB/R /Add.1 • WT/DS478/AB/R/Add.1  
 
- B-6 - 
 
ANNEX B -2 
EXECUTIVE SUMMARY OF  NEW ZEALAND'S APPELL EE'S SUBMISSION  
I. INTRODUCTION1 
1. This dispute concerns a range of prohibitions and restrictions imposed by Indonesia on 
imports of animals, anima l products and horticultural products. Before the Panel, New  Zealand 
argued that the 18 measures at issue constitute quantitative import restrictions that are 
inconsistent with Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture.  
2. The Panel agreed with New  Zealand that each of the 18 measures at issue constituted 
prohibitions or restrictions on importation inconsistent with Article XI:1 of the GATT 1994, that are 
not justified under Article XX of the GATT 1994.  
3. In reaching those co nclusions, the Panel made clear factual findings regarding the measures 
at issue. Specifically, having considered in detail all of the facts on the record, the Panel concluded 
that: 
a. each of the 18 measures at issue prohibits or restricts importation;2 and 
b. the "actual policy objective" behind all of the measures at issue is to " achieve self -
sufficiency through domestic production by way of restricting and, at times, prohibiting 
imports".3 
4. On appeal, Indonesia challenges the Panel's approach to assessing the measures at issue. 
For the reasons outlined below and in New  Zealand's Appellee Submission, New  Zealand considers 
that each of these grounds of appeal is without merit and should be dismissed.  
II. THE PANEL DID NOT ER R BY ANALYSING THE M EASURES AT ISSUE UN DER 
ARTICLE XI:1 OF THE GATT 1994  
5. Indonesia argues that the Panel erred by commencing its analysis of the measures at issue 
with Article XI:1 of the GATT 1994 rather than Article 4.2 of the Agreement on Agriculture. It 
alleges that Article 4.2 of the Agree ment on Agriculture is the more "specific" provision and applies 
"to the exclusion of" Article XI:1 of the GATT 1994.  
6. However, jurisprudence is clear that where there is no legal conflict between two provisions 
of the covered agreements, the relevant oblig ations are cumulative and continue to apply 
concurrently.4 The obligations contained in Article 4.2 of the Agreement on Agriculture and 
Article  XI:1 of the GATT 1994 do not conflict, as both can be complied with simultaneously. Thus, 
both provisions can be  read harmoniously and both apply to the measures at issue.5 That principle 
is not affected by Article 21.1 of the Agreement on Agriculture.  
7. Further, the Panel's decision to commence its analysis under Article XI:1 of the GATT 1994 
was within the Panel's " margin of discretion" to structure its order of analysis as it sees fit.6 The 
Panel's chosen order of analysis in the present dispute did not affect its substantive analysis of the 
measures at issue.  
8. Indonesia's argument also runs counter to the fact that Article X1:1 deals specifically with 
quantitative restrictions and the practice of multiple panels that have analysed claims of 
                                                
1 This executive summary contains a total of 2,253 words (including footnotes). New  Zealand's Appellee 
Submission contains a total of 23,176 words (including footnotes).  
2 Panel Report, Indonesia – Import Licensing Regimes , paras. 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 and 7.501.  
3 Panel Report, Indonesia – Import Licensing Regimes , para. 7.822.  
4 See e.g.  Appellate Body Reports, US – Softwood Lumb er IV, para. 134.  
5 See e.g.  Appellate Body Report, Argentina – Footwear (EC) , para. 81.  
6 See e.g . Appellate Body Report, Canada – Wheat Exports and Grain Imports , para. 126.  WT/DS477/ AB/R/Add.1 • WT/DS478/ AB/R/Add.1  
 
- B-7 - 
 
inconsistency with Article XI:1 of the GATT 1994 before Article 4.2 of the Agreement on 
Agriculture.  
III. THE PANEL DID NOT ER R BY FINDING THAT INDO NESIA BEARS THE BURD EN OF 
PROVING A DEFENCE UN DER ARTICLE XX OF TH E GATT 1994  
9. In its second ground of appeal, Indonesia argues that the burden of proof for an affirmative 
defence under Article XX of the GATT 1994 is reversed  for agricul tural quantitative restrictions. 
Indonesia seeks to introduce what it describes as a "second element" that a complainant must 
prove in order to establish a violation of Article 4.2 of the Agreement on Agriculture.7 Indonesia 
contends that to satisfy the al leged "second element" of Article 4.2, a complainant would need to 
prove that a challenged measure is not "maintained under [ inter alia ] … other general, 
non-agriculture -specific provisions of GATT 1994 [such as Article XX]" (second element)."8 
10. This novel argument represents a substantial departure from settled jurisprudence regarding 
the legal standard of Article 4.2 of the Agreement on Agriculture. It would also fundamentally 
change, with respect to agricultural products, the well -established characterisa tion of Article XX of 
the GATT 1994 as an affirmative defence.9  
11. The legal standard under Article 4.2 of the Agreement on Agriculture, including footnote 1, 
has been considered multiple times by panels and the Appellate Body. In none of the disputes that 
have considered Article 4.2 of the Agreement on Agriculture, has a panel or the Appellate Body 
found that a complainant is required to prove that a measure "is not maintained under any of the 
public policy exceptions set out in Article XX of the GATT 1994" in order to establish a violation of 
Article 4.2.10 
12. Indonesia's argument is premised on the notion that Article XX is not an exception  in the 
context of Article 4.2 of the Agreement on Agriculture. However, the characterisation of Article XX 
as an "exceptio n" or "affirmative defence" is well settled in WTO jurisprudence, and Indonesia has 
not provided any compelling justification for diverging from this well -established principle with 
respect to quantitative restrictions affecting agricultural products.11  
13. Further, even if the Appellate Body were to find that the complainants bear a burden of 
proof under Article XX in the context of Article 4.2 of the Agreement on Agriculture, New  Zealand 
submits that any such burden has been satisfied in the present dispute.  
IV. THE PANEL DID NOT FA IL TO MAKE AN OBJECT IVE ASSESSMENT UNDER  
ARTICLE  11 OF THE DSU WITH R ESPECT TO THE APPLIC ABILITY OF ARTICLE 4 .2 
OF THE AGREEMENT ON AGRICULTURE  
14. Indonesia claims that the Panel did not conduct an objective assessment in accordance w ith 
Article 11 of the DSU because it failed to examine the complainants' claims under Article 4.2 of the 
Agreement on Agriculture and "did not conduct an objective assessment of which party bears the 
burden of proof with respect to the second element of fo otnote 1 to Article 4.2 of the Agreement 
on Agriculture".12  
15. The Appellate Body has confirmed on a number of occasions that a claim that a panel has 
failed to conduct an "objective assessment of the matter before it" is "a very serious allegation".13 
In ligh t of the seriousness of such a claim, "a challenge under Article 11 of the DSU must 'stand by 
itself and be substantiated with specific arguments, rather than merely being put forth as a 
subsidiary argument or claim'".14 
                                                
7 Indonesia's Appellant Submission, para. 82 and 84.  
8 Indonesia's Appellant Sub mission, para. 84.  
9 See e.g.  Appellate Body Report, US – Wool Shirts and Blouses , p. 16.  
10 Indonesia's Appellant Submission, para. 83.  
11 See e.g . Appellate Body Report, US – Wool Shirts and Blouses , p. 16.  
12 Indonesia's Appellant Submission, para. 105.  
13 Appellate Body Report, Peru – Agricultural Products , para. 5.66.  
14 Ibid. WT/DS477/AB/R /Add.1 • WT/DS478/AB/R/Add.1  
 
- B-8 - 
 
16. Despite this guidance, the grounds o n which Indonesia claims the Panel has failed to 
conduct an "objective assessment of the matter before it" are based exclusively on Indonesia's 
first and second grounds of appeal: namely, that the Panel erred in law in finding that Article XI:1 
of the GATT  1994 is more specific than Article 4.2 of the Agreement on Agriculture;15 and, that the 
Panel erred in law by determining that Indonesia bore the burden of proving the second element of 
footnote 1 to Article 4.2 of the Agriculture Agreement with respect to  its Article XX defences.16 
17. Accordingly, as a threshold matter, Indonesia has failed to independently substantiate its 
claims under Article 11 of the DSU as distinct from its first and second claims of legal error. As was 
the case in Peru - Agricultural Pro ducts , Indonesia's challenge under Article 11 is based solely on 
Indonesia's challenge to the legal standards applied by Panel, and Indonesia "has not explained 
the basis for requesting an additional examination of the Panel's assessment of the matter befo re 
it in the context of an Article 11 claim".17 Accordingly, Indonesia's claim under Article 11 of the 
DSU must fail.  
18. In any case, for the reasons described in Sections II and III above, New  Zealand has 
demonstrated the Panel's decision to commence its anal ysis of the measures at issue under 
Article  XI:1 of the GATT 1994 and its allocation of the burden of proof under Article XX defences 
did not result in legal error.  
V. THE PANEL WAS CORREC T THAT ARTICLE XI:2( C) OF THE GATT 1994 HAS BEEN 
RENDERED INOPERATIV E BY ARTICLE 4.2 OF THE AGREEMENT ON AGR ICULTURE  
19. Indonesia makes an alternative argument that the Panel erred by concluding that 
Article  XI:2(c) of the GATT 1994 has been rendered inoperative by Article 4.2 of the Agreement on 
Agriculture. Indonesia conten ds that Article XI:2(c) is "a 'scope' provision and cannot be properly 
characterized as an 'exception' to the obligations under Article XI:1."18 In reliance on this 
characterisation, Indonesia argues that XI:2(c) "defines the term 'quantitative import restr ictions' 
in the first element of footnote 1 to Article 4.2 of the Agreement on Agriculture."19  
20. However, GATT and WTO jurisprudence confirms that Article XI:2(c) is an exception  to the 
obligation in Article XI:1 of the GATT 1994. Thus, Article XI:2(c) does not define the scope of 
"quantitative import restriction" in Article 4.2 of the Agreement on Agriculture, because it operates 
as an exception to the obligation in Article XI:1 of the GATT 1994. Further, even if the Appellate 
Body were to depart from this e stablished jurisprudence characterising Article XI:2(c) as an  
exception, the language of footnote 1 to Article 4.2 of the Agreement on Agriculture clearly 
renders Article XI:2(c) inapplicable to agricultural products covered by the Agreement on 
Agriculture . Article XI:2(c), by its terms, applies specifically to measures maintained in respect of 
agricultural products. Measures falling within Article XI:2(c) are therefore not maintained under a 
"general, non -agriculture -specific provision" within the meaning of footnote 1 of Article 4.2 of the 
Agreement on Agriculture, as the Panel correctly found.  
21. Moreover, this ground of appeal has no bearing on resolving this dispute as Indonesia failed 
to demonstrate that the elements of an Article XI:2(c)(ii) defence are satisfied in this instance.  
VI. THE PANEL DID NOT ER R BY FINDING THAT ME ASURES 9 THROUGH 17 ARE NOT 
JUSTIFIED UNDER ARTI CLE XX OF THE GATT 1 994 
22. Indonesia seeks to reverse the Panel's findings that Indonesia failed to demonstrate that 
Measures 9 - 17 are ju stified under Article XX of the GATT 1994. Indonesia argues that the Panel's 
decision to analyse Indonesia's Article XX defences for Measures 9 – 17 under the chapeau  was a 
legal error. It argues that the Panel deviated from an allegedly "mandatory sequenc e" for 
conducting an Article XX analysis and that this sequence of analysis had "repercussions for the 
substance" of the Panel's analysis under the chapeau .20 
                                                
15 Indonesia's Appellant Submission, para. 63.  
16 Indonesia's Appellant Submission, para. 94.  
17 Appellate Body Report, Peru – Agricultural Products , para. 5.67 (emphasis original).  
18 Indonesia's Appellant Submission, para. 116.  
19 Indonesia's Appellant Submission, para. 120.  
20 Indonesia's Appellant Submission, paras 142, 145, 151, 152 and 153.  WT/DS477/ AB/R/Add.1 • WT/DS478/ AB/R/Add.1  
 
- B-9 - 
 
23. However, New  Zealand submits that it is insufficient for Indonesia to simply contend that the 
Panel's order of analysis constituted an error of law in the "abstract".21 The order of analysis must 
have had "repercussions for the substance of the analysis itself" leading to "flawed results."22 
24. In arguing that the Panel in the present dispute erred in law b y commencing its Article XX 
analysis for Measures 9 – 17 with the chapeau , Indonesia relies heavily on US - Shrimp .23 In 
particular, Indonesia implies that the Appellate Body in US - Shrimp  found that the panel erred in 
law because it "deviated from the man datory sequence of analysis under Article XX".24 However, 
Indonesia's argument is based on a mischaracterisation of the Appellate Body's decision in that 
dispute.  
25. In US – Shrimp, the Appellate Body found that the Panel erred in law because it misapplied 
the legal standard under the chapeau  of Article XX.25 In particular, the panel in US – Shrimp  did 
not consider the context provided by the relevant subparagraphs of Article XX when assessing the 
measure at issue, and thus committed legal error.26 
26. In the present  dispute, the sequence of analysis applied by the Panel in respect of 
Measures  9 – 17 under Article XX did not have "repercussions for the substance" of its analysis 
and did not lead to "flawed results".27 Indeed, the Panel correctly analysed each of Indone sia's 
measures under the chapeau , following the approach approved by the Appellate Body in US – 
Shrimp . In particular, the Panel conducted its assessment of the measures at issue under the 
chapeau  in light of the policy objectives contained in the subparag raphs of Article XX.28 
VII. CONCLUSION  
27. For the reasons outlined above, and as elaborated in New  Zealand's Appellee Submission, 
New Zealand respectfully requests that the Appellate Body reject each of Indonesia's appeal 
claims, and uphold the Panel's finding s, conclusions and legal interpretations.  
 
 
 
 
                                                
21 Appellate Body Report, US – Cool (Article 21.5 – Canada and Mexico), para. 5.206.  
22 See e.g . Appellate Body Report, Canada – Wheat Exports and Grain Imports , para. 109.  
23 Indonesia's Appellant Submission, paras. 141, 142, 151 and 152.  
24 Indonesia's Appellant Submission, para. 151.  
25 Appellate Body Report, US – Shrimp , paras. 121 and 122.  
26 Appellat e Body Report, US – Shrimp , paras. 121 and 116.  
27 See e.g . Appellate Body Report, Canada – Wheat Exports and Grain Imports , para. 109.  
28 Panel Report, Indonesia – Import Licensing Regimes , paras. 7.812 –7.829.  WT/DS477/AB/R /Add.1 • WT/DS478/AB/R/Add.1  
 
- B-10 - 
 
ANNEX  B-3 
EXECUTIVE SUMMARY OF  THE UNITED STATES'  APPELLEE'S SUBMISSIO N 
I. INTRODUCTION  
1. As the Panel report makes clear, the measures at issue fall woefully short of meeting 
Indonesia's obligations under the W TO Agreement. Indeed, Indonesia does not even attempt to 
argue on appeal that any of the measures at issue is consistent with its WTO obligations. Instead, 
Indonesia seeks to undermine the Panel's analysis based on spurious, technical legal arguments. It 
is, therefore, an unfortunate and injudicious use of the resources of the parties and the Appellate 
Body that Indonesia has brought this appeal.  
2. We therefore urge the Appellate Body to address only those claims that must be addressed 
to resolve this matter . It can do so by making one finding only: that the Panel did not err in 
beginning its analysis with Article XI:1 of the GATT 1994. This finding would resolve the dispute 
between the parties, and the Appellate Body's analysis can end there.  
3. If the Panel's  findings under Article XI:1 are upheld, none of Indonesia's additional appeals 
would alter the consequent recommendation that Indonesia bring each challenged measure into 
compliance with its obligations. Indonesia's appeals concerning Article 4.2 of the A greement on 
Agriculture would have no effect on the DSB recommendations because that provision deals with a 
separate, independent obligation, the application of which does not affect the findings under Article 
XI:1. Indonesia's appeals concerning GATT Arti cles XI:2(c) and XX also would not lead to any 
substantive change in the Panel's findings. Article XI:2(c) was an unsuccessful defense raised by 
Indonesia for which it has not requested favorable completion of the analysis, only a finding that 
the provisio n still has operational effect. Regarding Article XX, Indonesia challenges the Panel's 
order of analysis, but does not request the Appellate Body to complete the analysis in its favor 
because of an admitted lack of sufficient undisputed facts on the record . As Indonesia concedes 
that it cannot justify the relevant measures under either provision, the findings under Article XI:1 
would again remain undisturbed.  
4. Indeed, for the outcome of this dispute to change on appeal, the Appellate Body would need 
to make a series of untenable legal findings that would be inconsistent with the text of the covered 
Agreements and how they have been interpreted by past panels and the Appellate Body, including 
that Article XI:1 does not apply to agricultural products and that a  complainant bears the burden 
of proving the absence of an Article XX defense under Article 4.2. Such a result would be 
particularly disturbing in a dispute involving such a large number of measures that the Panel found 
to breach a fundamental tenet of the  WTO Agreement.  
II. THERE IS NO BASIS TO  REVERSE THE PANEL'S FINDINGS UNDER ARTIC LE XI:1  
A. The Panel's Approach Was Not Legal Error  
5. The DSU requires the Panel to make such findings as will assist the DSB in making the 
recommendations provided in the covered agreements, so that the DSB can assist the parties in 
resolving the dispute. Within this framework,  neither the covered agreements nor the DSU 
imposes on panels any other mandatory rule for how panels should order their analysis of the 
various provisions o r agreements that are necessary for resolution of the dispute.  
6. The Appellate Body has found that, "[a]s a general principle, panels are free to structure the 
order of their analysis as they see fit" and "may find it useful to take account of the manner in  
which a claim is presented to them." The limitation on this freedom is that panels "must ensure 
that they proceed on the basis of a properly structured analysis to interpret the substantive 
provisions at issue." Thus, the limit on panels' discretion is ba sed on the substantive outcome.  
7. Panel and Appellate Body reports support this understanding. The panel in India – Autos  
explained that, "other than where a proper application of one provision might be hindered without 
prior consideration of other issues, t he adoption by a panel of a particular order of examination of WT/DS477/ AB/R/Add.1 • WT/DS478/ AB/R/Add.1  
 
- B-11 - 
 
discrete claims would rarely lead to any errors of law." Other panels and the Appellate Body have 
drawn the same conclusion. In Canada – FIT, the Appellate Body found there was no mandatory 
sequence of analysis because the order did not affect the substantive assessment. In US – FSC, 
the Appellate Body found the panel's order of analysis was not legal error, noting: "[t]he 
appropriate meaning of both provisions can be established and can be give n effect , irrespective of" 
the order.  
8. Indonesia ignores the rule that panels have discretion with respect to sequence of analysis 
and suggests that panels must begin with the agreement that is more "specific." None of the 
reports cited by Indonesia support  this argument.  
9. In EC – Bananas III , the Appellate Body addressed the panel's order of analysis and 
suggested the panel "should" have begun with the agreement that "deals specifically, and in 
detail" with the measure at issue. However, the Appellate Body did not determine that the panel's 
order undermined the integrity of the legal analyses under either provision. Rather, the statement 
was made in the context of efficiency, as, if the panel had begun its analysis with one claim, "there 
would have been no n eed for it to address" the second. Similarly, in  Chile – Price Band System , 
the Appellate Body addressed an argument that the panel erred in beginning its analysis under 
Article 4.2 rather than Article II:1(b). The Appellate Body found that, "[a]s these tw o provisions  … 
establish distinct legal obligations," the outcome of the dispute "would be the same, whether we 
begin our analysis" under either.  
10. Thus, regardless of whether a certain provision deals more specifically with the measures at 
issue, an assessm ent of whether a panel's order of analysis chosen by the panel constitutes legal 
error must focus on whether that order undermined the integrity of its analysis under any 
provision. Such was not the case here.  
11. Rather, the Panel's decision to begin its asse ssment with Article XI:1 instead of Article 4.2 
did not affect the substance of the Panel's findings  under the former provision.  
12. First, the structure of Article XI:1 and Article 4.2 shows that no mandatory order of analysis 
is warranted. Article 4.2 deals  with "preventing the circumvention of tariff commitments on 
agricultural products" by numerous means, including quantitative restrictions, while Article XI:1 
addresses "quantitative restrictions" on importation for agricultural products and other products . 
Thus, Article XI:1 prohibits a subset of measures that are also prohibited by Article 4.2. However, 
neither provision incorporates or necessarily depends on the other. Consequently, the outcome of 
the analysis under each would be the same regardless of t he order.  
13. Further, all the panels that have interpreted Article XI:1 and Article 4.2 have found that the 
provisions are independent, cumulative legal obligations. And panels and the Appellate Body have 
made findings under each provision separately. Thus, t he "appropriate meaning of both provisions 
can be established and can be given effect" regardless of the order of analysis. Indeed, none of the 
previous panels that considered claims under both provisions considered that an order of analysis 
was mandatory.  And, before the Panel, no party suggested this was the case.  
14. Indonesia's arguments on appeal also do not suggest that the Panel's sequence of analysis 
had any effect on the substance of its findings under Article XI:1. Indeed, it appears uncontested 
that this is not the case, in light of Indonesia's description of the two independent "discipline[s]" 
with "different obligations and different product coverage." Rather, Indonesia claims simply that 
because Article 4.2 is more "specific" than Article XI:1, the  Panel's sequence of analysis is 
necessarily reversible error. But that argument is wrong.  
15. Further, Indonesia's only argument attacking the substance of the Panel's findings under 
Article XI:1, i.e., the argument that, pursuant to Articles 21.1 and 4.2 of the Agreement on 
Agriculture, Article XI:1 no longer applies to agricultural products, is incorrect .  
16. First, this argument contradicts a foundational WTO principle. Under Article II:2 of the 
WTO Agreement, the "[a]greements contained in the annexes are all  necessary components of the 
'same treaty' and they, together, form a single package of WTO rights and obligations." 
Consequently, "a single measure may be subject, at the same time, to several WTO provisions 
imposing different disciplines," and "a treaty interpreter must read all applicable provisions of a WT/DS477/AB/R /Add.1 • WT/DS478/AB/R/Add.1  
 
- B-12 - 
 
treaty in a way that gives meaning to all of them, harmoniously." The interpretative note to 
Annex  1A makes it clear that a provision of one agreement overrides another only "[i]n the event 
of conflict" and then only "to the extent of the conflict."  
17. Indonesia's argument contradicts these principles because it would render inutile, as to 
agricultural products, significant provisions of the GATT 1994. Indonesia does not even attempt to 
provide a rationale f or this outcome, as it is undisputed that there is no conflict between the 
provisions.  
18. Second, Article 21.1 of the Agreement on Agriculture offers no support for Indonesia's 
interpretation. The provision states that the GATT 1994 "shall apply" to agricult ural products 
"subject to" the provisions of the Agreement on Agriculture. Thus it renders no provision of the 
GATT 1994 inoperative. Rather, it states that, to the extent a provision of the Agreement on 
Agriculture expressly supersedes a provision of the GATT 1994, the Agreement on Agriculture 
would prevail. In other respects, both agreements "shall apply" in full.  
19. The Appellate Body's statement in EC – Bananas III  reflects this interpretation. The EU had 
argued that Article 21.1 confirmed "the 'agricultu ral specificity'" of the agreement and showed that 
its rules "supersede[d] the provisions of the GATT 1994." The panel rejected this argument 
because " giving priority to Article 4.1 . . . does not necessitate, or even suggest, a limitation on 
the applicati on of Article XIII," because "[t]he provisions are complementary, and do not clash." 
The Appellate Body agreed, concluding that Article 4 did not deal specifically with the allocation of 
tariff quotas, and therefore could not conflict with Article XIII of the GATT 1994. Therefore, these 
findings do not suggest that specificity alone creates a conflict.  
20. Third, previous interpretations of substantive provisions of the Agreement on Agriculture 
also refute Indonesia's argument. Contrary to Indonesia's claim, th e Appellate Body in Chile – 
Price Band System  did not suggest that Article II of the GATT no longer applied to agricultural 
products by virtue of Article 4.2. In fact, it confirmed that both provisions applied. Also, all 
previous panels that have examined claims under both Article XI:1 and Article 4.2 have confirmed 
that Article XI:1 applies to measures also covered by Article 4.2.  
21. Finally, the principle of lex specialis  does not support Indonesia's appeal. Indeed, it is not 
applicable. The principle is a guide for what rule "ought to be observed . . . where parts of a 
document are in conflict." Thus, it  concerns situations where two provision conflict and so cannot 
be applied simultaneously. In the present case, there is no such conflict.  
22. Additionally, Indonesia's argument that the Agreement on Agriculture is more "specific" is 
incorrect . Due to Indonesia's invocation of defenses under Article XX of the GATT 1994, 
considerations of efficiency and judicial economy favored beginning with that agreement. Furt her, 
Article XI:1 specifically addresses the type of measure at issue, namely prohibitions and 
restrictions on importation, and Article 4.2 is not more specific.  
23. Indonesia's argument that the fact that Article 4.2 has "a broader scope of coverage than 
Article 4.2" is "not determinative" of which is the more specific provision and that Article 4.2 is 
more specific as to product coverage does not suggest that the Agreement on Agriculture is more 
specific than the GATT 1994 for purposes of this dispute or tha t any mistake in the sequence of 
analysis would be reversible error. Also, the fact that Article 4.2 rendered Article XI:2(c) of the 
GATT 1994 inoperative does not suggest that it is more "specific" in this dispute. Indonesia 
advances no reason why this wo uld be the case. Indonesia's assertion that the obligations under 
Article 4.2 and Article XI:1 are "different" is also incorrect. The obligation of Article 4.2 is simply to 
not "maintain, revert to, or resort to measures covered by Article 4.2," and thus i s not different 
than the obligation under Article XI:1.  
B. Indonesia's DSU Article 11 Appeal Should Be Rejected  
24. Indonesia has failed to allege under Article 11 of the DSU any arguments separate from or 
additional to those Indonesia put forward with respect to  its substantive legal appeals. This alone 
provides a sufficient basis for the Appellate Body to reject Indonesia's Article 11 appeal. 
Additionally, Indonesia has adduced no evidence or argument suggesting any alleged error was so 
egregious as to call into  question the objectivity of the Panel's assessment.  WT/DS477/ AB/R/Add.1 • WT/DS478/ AB/R/Add.1  
 
- B-13 - 
 
25. Indonesia has also not met the standard of Article 11 of the DSU with respect to its claim 
that the Panel's exercise of judicial economy was inappropriate. Specifically, Indonesia does not 
allege that t he Panel's decision not to address the issues resulted in "only a 'partial resolution of 
the matter at issue," or that a finding as to the burden of proof under Article 4.2, footnote 1, was 
necessary for sufficiently precise DSB recommendations and rulings . The Appellate Body report in 
Colombia – Textiles  supports the conclusion that the Panel's exercise of judicial economy in this 
dispute was not in error.  
III. THE CHALLENGED MEASU RES ARE INCONSISTENT  WITH ARTICLE 4.2  
26. Article 4.2 of the Agreement on Agric ulture covers a range of measures that include 
quantitative import restrictions and minimum import prices. Past panels and the Appellate Body 
have confirmed that measures covered by Article 4.2 include those inconsistent with Article XI:1. 
Here, the findin gs of the Panel under Article XI:1 establish that each of the challenged measures is 
also a "quantitative import restriction" or "similar border measure" or a "minimum import price" or 
"similar border measure" under Article 4.2. Therefore, in the event tha t the Appellate Body 
reverses the Panel's findings under Article XI:1, the United States requests that it complete the 
analysis of the consistency with Article 4.2 of each of the measures, based on the factual findings 
of the Panel and the uncontested fact s on the record.  
IV. THE PANEL DID NOT ER R IN ITS ANALYSIS OF  ARTICLE 4.2    
27. If the Appellate Body upholds the Panel's findings under Article XI:1 of the GATT 1994, it 
need not make any findings with respect to the burden of proof under the footnote to Art icle 4.2. 
The Panel did not err in analyzing Articles XI:1 and XX of the GATT 1994 before considering 
Article  4.2. Therefore, any findings with respect to the burden of proof of Article 4.2 of the 
Agreement on Agriculture would not change Indonesia's oblig ation to implement the findings and 
recommendations of the Panel with respect to Article XI:1 of the GATT 1994, once they are 
adopted by the DSB. For this reason alone, the Appellate Body can and should reject Indonesia's 
appeal concerning the burden of pr oof under the footnote to Article 4.2.  
28. For completeness, the United States notes that, in rejecting Indonesia's burden of proof 
argument, the Panel correctly interpreted Article 4.2.  
29. Indonesia attempted to argue that because the scope  of Article 4.2 is li mited to measures 
not maintained under Article XX, the burden of proof under an affirmative defense  necessarily 
must shift. No such rule exists. Rather, "the burden of proof rests upon the party, whether 
complaining or defending, who asserts the affirmativ e of a particular claim or defence." If 
Indonesia's measures are "maintained" under a general exception, it would be for Indonesia to 
assert the exception and demonstrate its applicability. Even where a provision excludes certain 
measures from its scope, t hat is not dispositive of burden of proof.  
30. Indonesia argues that other provisions of the WTO Agreements also "convert exceptions 
under Article XX of the GATT 1994 into positive obligations," but none of the examples Indonesia 
identifies is analogous. Furt her, reversing the burden of proof with respect to the exceptions 
identified in footnote 1 to Article 4.2 would be inconsistent with the structure and purpose of the 
Agreement on Agriculture and Article 4.2. Additionally, Indonesia's interpretation would c reate 
absurd and infeasible results.  
31. Finally, while not necessary to prevail in its claims under Article 4.2, the co -complainants 
provided substantial evidence and argumentation that none of Indonesia's measure are maintained 
consistently with Article XX o f the GATT 1994.  
V. THE PANEL'S FINDING ON ARTICLE XI:2(C) W AS CORRECT  
32. Indonesia argues that Article XI:2(c)(ii) of the GATT 1994 remains a viable provision even 
with the existence of Article 4.2 of the Agreement on Agriculture. Making findings on the 
interpretation of Article XI:2(c) is not necessary to resolve this dispute because Indonesia has 
requested only that the Appellate Body reverse the Panel's legal conclusion regarding inoperability 
of this provision; it has not requested completion of the ana lysis. And even if it had, Indonesia WT/DS477/AB/R /Add.1 • WT/DS478/AB/R/Add.1  
 
- B-14 - 
 
failed to address, much less demonstrate, the conditions required to maintain measures under 
Article XI:2(c). Thus, Indonesia cannot in this appeal obtain findings that Article XI:2(c) applies.  
33. For completeness, the Uni ted States notes that the Panel did not err when it found with that 
Article XI:2(c) of the GATT 1994 is not available for Indonesia. The Panel correctly found that 
Article 4.2 of the Agreement on Agriculture prohibits import restrictions maintained under 
Article XI:2(c). Because these import restrictions are agriculture -specific, Indonesia cannot rely on 
the "maintained under other general, non -agriculture -specific provisions of the GATT 1994" 
limitation to Article 4.2 of the Agreement on Agriculture.  
VI. THERE IS NO BASIS TO REVERSE THE PANEL'S FINDING UNDER ARTICL E XX  
34. It is not necessary for the Appellate Body to consider Indonesia's appeal  concerning the 
Panel's findings under Article XX. Indonesia does not request completion of the analysis and a 
findin g that the Article XX defense is made out with respect to any of the challenged measures. 
Therefore, Indonesia's appeal could result in no change to the DSB recommendations and rulings.  
35. Further, the fact that the Panel analyzed the chapeau of Article XX in  relation to certain 
measures without having analyzed the subparagraphs first is not per se reversible legal error . 
Rather, the Panel's findings should be reversed only if its analysis was substantively incorrect.  
36. Indonesia misunderstands the Appellate Bod y report in US – Shrimp  in this respect. That 
report found that the subparagraph under which a measure is claimed to be justified is relevant to 
the chapeau analysis, because the chapeau must be analyzed in light of the specific policy 
objective identified  by the respondent. The Appellate Body did not find that analyzing the chapeau 
first constitutes legal error that requires reversal.  
37. Subsequent reports confirm that the relevant policy objective is relevant to the chapeau 
analysis because it: (1) provides "pertinent context" for determining the "conditions" that are 
relevant to assessing whether a measure discriminates; and (2) is a factor in assessing whether 
discrimination is "arbitrary and unjustifiable."  
38. The Panel here correctly analyzed the chapeau wit h respect to Indonesia's defenses under 
Articles XX(a), XX(b), and XX(d) .  
39. For each subparagraph, the Panel considered whether the measures for which Indonesia had 
asserted defenses discriminated under the chapeau, in light of the objective(s) Indonesia as serted 
the measures pursued. The Panel found that Indonesia's arguments did not address 
"discrimination in the sense of the chapeau" at all. The Panel then considered whether the 
discrimination caused by the measures "can be reconciled with, or is rational ly related to" the 
objective(s) Indonesia asserted each measure pursued and found that the discrimination caused 
by each of the challenged measures was arbitrary or unjustifiable, in light of those objectives.  
40. Additionally, the Panel found that "the actual  policy objective behind all these measures is to 
achieve self -sufficiency ... by way of restricting and, at time, prohibiting imports." This "rationale  … 
does not relate to the pursuit of or would go against" the objectives of the Article XX 
subparagraphs . 
41. Thus, the Panel appropriately assessed Indonesia's defenses under the chapeau in light of 
the objectives Indonesia asserted the measures pursued.  
VII. CONCLUSION  
42. The United States respectfully requests the Appellate Body to reject all of Indonesia's cla ims 
on appeal, and uphold the Panel's findings  
 
_______________  
 
 WT/DS477/ AB/R/Add.1 • WT/DS478/ AB/R/Add.1  
 
- C-1 - 
 
ANNEX C  
ARGUMENTS OF THE THI RD PARTICIPANTS  
Contents  Page  
Annex  C-1 Executive summary of Australia's  third participant's submission  C-2 
Annex  C-2 Executive summary of Brazil 's third parti cipant's submission  C-3 
Annex  C-3 Executive summary of Canada 's third participant's submission  C-4 
Annex  C-4 Executive summary of the European Union' s third participant's submission  C-5 
 
 WT/DS477/AB/R/Add.1 • WT/DS478/AB/R/Add.1  
 
- C-2 - 
 
ANNEX C -1 
EXECUTIVE SUMMARY OF  AUSTRALIA'S THIRD PA RTICIPANT'S S UBMISSION1 
1. Australia concurs with the Panel that it is appropriate to consider the consistency of all of 
Indonesia's measures under Article XI:1 of the GATT 1994, addressing the subject of 
quantitative restrictions, before considering the consistency of In donesia's measures with 
the broader provision in Article 4.2 of the Agreement on Agriculture.  
2. The Panel also did not err in determining that Indonesia bore the burden of proving a 
defence under Article XX of the GATT 1994. WTO jurisprudence confirms that the burden of 
identifying affirmative defences rests on the party asserting the defence .  
3. As a result, Indonesia has not substantiated its claim under Article 11 of the DSU.  
4. Article XI:2(c) of the GATT 1994 covers import restrictions of any form, which are  tolerated 
as exceptions to the general prohibition to impose quantitative restrictions. Article 4.2 
requires that WTO Members avoid recourse to a series of measures that could come under 
Article XI:2(c) of GATT. To the extent of the conflict, Article 4.2 of the Agreement on 
Agriculture renders Article XI:2(c) of the GATT 1994 inoperative.  
5. Australia submits that the Panel's analysis of Measures 9 through 17 with the chapeau  of 
Article XX had no repercussions in terms of substance. In conducting its analysis  under the 
chapeau , the Panel was aware of, and expressly applied, the correct legal standard.  
6. Accordingly, Australia respectfully requests that the Panel's findings be upheld.  
 
 
 
                                                
1 Total word count (including footnotes) of exe cutive summary = 277 words.  WT/DS477/ AB/R/Add.1 • WT/DS478/ AB/R/Add.1  
 
- C-3 - 
 
ANNEX C -2 
EXECUTIVE SUMMARY OF  BRAZIL'S  THIRD PARTICIPANT'S SUBMISSION2 
1. Regardless of the order of analysis adopted by the Panel in this dispute, it is clear that there 
is no legal conflict between Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on 
Agriculture. The principle of lex specialis in Article 21.1 of the  Agreement on Agriculture does not 
apply.  
2. The Panel properly interpreted that the burden of proof under Article 4.2 of the Agreement 
on Agriculture and its footnote 1 lies with the respondent to demonstrate that a quantitative 
import restriction is justif ied under any GATT exception. The reversal of the burden of proof for the 
complainant, as suggested by Indonesia, would run against established WTO jurisprudence and 
impose an excessive burden on the complainant to make a prima facie case under Article 4.2 .  
3. Brazil agrees in principle that an adequate assessment of a defense under Article XX of the 
GATT 1994 should follow the two -tier test. This standard of review, however, does not relieve a 
Member of its burden to substantiate its defense under Article XX  so as to provide the Panel with 
the essential elements for it to carry out its analysis. There is no reason to believe that, in the 
particular circumstances of this case, the lack of specific reference to the two -tier test by the Panel 
is tantamount of a flawed analysis.  
 
 
 
 
                                                
2 Word count: 233 words.  WT/DS477/AB/R/Add.1 • WT/DS478/AB/R/Add.1  
 
- C-4 - 
 
ANNEX C -3 
EXECUTIVE SUMMARY OF  CANADA'S THIRD PARTI CIPANT'S SUBMISSION1 
I. THE PANEL DID NOT ER R IN ANALYSING THE M EASURES UNDER GATT A RICLE XI:1 
BEFORE ARTICLE 4.2 O F THE AGREEMENT ON A GRICULTURE  
1. The Panel did not err by starting its  analysis under the GATT 1994, for the following 
reasons:  
 As a general principle, panels are free to structure the order of their analysis as they see 
fit, unless it would lead to an error of law or affect the substance of the analysis itself. 
That is not  the case here.  
 When more than one covered agreement applies, the measure should be first analysed 
under the agreement that deals specifically and in detail with the matter. In this case, 
that is the GATT 1994.  
 As a matter of efficiency and to facilitate t he exercise of judicial economy, it made sense 
for the Panel to analyse Indonesia's measures under the GATT 1994 first.  
 Article 21.1 of the Agreement on Agriculture only becomes relevant in the case of a 
conflict between a provision in that Agreement and a nother WTO Agreement. In this 
case, there is no conflict.  
II. THE BURDEN OF PROOF IS ON THE RESPONDENT  TO ESTABLISH THAT A MEASURE 
IS NOT SUBJECT TO AR TICLE 4.2 OF THE AGR EEMENT ON AGRICULTUR E BECAUSE 
IT IS MAINTAINED UND ER GATT ARTICLE XX  
2. Where a responde nt claims that a measure does not violate Article 4.2 of the Agreement on 
Agriculture because it is maintained under GATT Article XX, the burden of proof falls on the 
respondent. Canada is of the view that Indonesia's argument that the burden of proof fall s on the 
complainant would impose an unrealistic burden on complainants and runs contrary to the 
jurisprudence.  
III. THE ANALYSIS UNDER G ATT ARTICLE XX IS TW O-TIERED.  
3. The jurisprudence is clear that an Article XX analysis must follow a two -step sequence:  
a. provisional justification under one of the Article XX subparagraphs; and  
b. whether the measure meets the requirements of the chapeau.  
 
 
                                                
1 Canada's Third Participant Submission contains 3720 words.  This Executive Summary contains 
365 words (including this footnote).  WT/DS477/ AB/R/Add.1  • WT/DS478/ AB/R/Add.1  
 
- C-5 - 
 
ANNEX C -4 
EXECUTIVE SUMMARY OF  THE EUROEPAN UNION'S  THIRD PARTICIPANT'S SUBMISSION  
A. Indonesia's First ground of appeal   
1. Indonesia's line of argument in support of its first ground of appeal rests on a flawed 
interpretation of Article 21.1 of the Agreement on Agriculture  (AA). 
2. The Appellate Body clarified that pursuant to Article 21.1 AA provisions of the GATT 1994  
can only  be set aside to the extent the Agreement on Agriculture  contains specific provisions 
dealing specifically with the same matter. Even where a provision can be said to be dealing 
more specifically  with a matter  than another, in the absence of a conflict, bo th provisions 
apply and only the issue of determining the order of analysis remains.  
3. The European Union (EU) submits that in determining whether or not a general obligation 
has to be set aside in favour of a more specific obligation, one must respect the p rinciple of 
effective and harmonious interpretation, which requires that a treaty interpreter reads all 
applicable provisions in a way that gives meaning to all of them.  
4. To the extent that they have been raised by the co -complainants, Article XI:1 GATT 199 4 
and Article 4.2 AA are distinct and "cumulative obligations" and there is no legal conflict 
between them. Panels have discretion in deciding the order of analysis of parties' claims, 
unless a particular order is compelled by principles of valid interpret ative methodology. The 
EU sees nothing in these two provisions to indicate that there is an obligatory sequence of 
analysis to be followed for the claims at issue.  
B. Indonesia's Second ground of appeal  
5. The EU submits that Footnote 1 to Article 4.2 AA inc orporates certain provisions, notably 
Article XX GATT 1994 , into the Agreement on Agriculture  by means of an explicit reference. 
In so doing it does not alter the allocation of burden of proof under Article XX. This reading 
is consistent with the interpret ation adopted by the Appellate Body in China – Publications 
and Audiovisual Products . 
C. Indonesia's Fourth ground of appeal  
6. Indonesia argues that Footnote 1 of Article 4.2 AA incorporates the totality of Article XI 
GATT 1994  through the concept of "quanti tative import restrictions". The EU disagrees.  
7. First, the first element of Footnote 1 of Article 4.2 AA  refers to quantitative restrictions, not 
to "prohibited quantitative restrictions". Article XI:2(c) excludes certain measures from the 
prohibition of "q uantitative restrictions" in Article XI, however, these measures remain 
"quantitative restrictions" and are therefore covered by Article 4.2 AA.  
8. Second, WTO jurisprudence confirms that Article XI:2 and its subparagraphs should be 
considered as exceptions f rom the prohibition under Article XI:1.  
9. Finally, as confirmed by the panel in EC – Bananas III , Article 4.2 AA is a substantive 
provision in that it prohibits the use of certain non -tariff barriers, subject to certain 
qualifications. Thus, as provided for in Article 21.1 AA, it prevails over such GATT provisions 
as Article XI:2(c).  WT/DS477/AB/R/Add.1 • WT/DS478/AB/R/Add.1  
 
- C-6 - 
 
D. Indonesia's Fifth ground of appeal  
10. With regard to the relationship between the independent paragraphs and the chapeau of 
Article XX, the EU recalls that it is well established  that an analytical sequence needs to be 
followed under Article XX, first determining whether the measures can fall within the scope 
of individual paragraphs, then whether the measures can also satisfy the conditions set out 
in the chapeau.  
__________