WT/DS477/R/Add.1  
WT/DS478/R/Add.1  
 
22 December  2016 
(16-6997) Page: 1/127 
  Original: English  
 
  INDONESIA – IMPORTATION OF HORTI CULTURAL PRODUCTS,  
ANIMALS AND ANIMAL P RODUCTS  
REPORT OF THE PANEL  
Addendum  
This addendum  contains Annexes A to E to the Report of the Panel to be found in documents  
WT/DS477/R  and WT/DS478/R . 
 
 
_______________  
 
 WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  LIST OF ANNEXES  
ANNEX  A 
PRELIMINARY RULING O F THE PANEL  
Contents  Page  
Annex  A-1 Preliminary Ruling  of the Panel  A-1 
 
ANNEX  B 
WORKING PROCEDURES O F THE PANEL  
Contents  Page  
Annex  B-1 Working Procedures of the Panel  B-1 
ANNEX C  
ARGUMENTS OF THE PAR TIES 
NEW ZEALAND  
Contents  Page  
Annex  C-1 First part of the executive summary of the arguments of New Zealand  C-2 
Annex  C-2 Second part of the executive summary of the arguments of New Zealand  C-14 
 
UNITED STATES  
Contents  Page  
Annex  C-3 First part of the executive summ ary of the arguments of the United States   C-27 
Annex  C-4 Second part of the executive summary of the arguments of the United States  C-39 
 
INDONESIA  
Contents  Page  
Annex  C-5 First part of the executive summary of  the arguments of Indonesia  C-51 
Annex  C-6 Second part of the executive summary of the arguments of Indonesia  C-57 
 
ANNEX  D 
ARGUMENTS OF THE THI RD PARTIES  
Contents  Page  
Annex  D-1 Executive summary of the arguments of Argentina  D-2 
Annex  D-2 Executive summary of the arguments of Australia  D-4 
Annex  D-3 Executive summary of the arguments of Brazil  D-9 
Annex D -4 Executive summary of the arguments of Canada  D-12 
Annex D -5 Executive summary of the arguments of the European Union  D-14 
Annex D -6 Executive summary of the arguments of Japan  D-17 
Annex D -7 Executive summary of the arguments of Korea  D-21 
Annex D -8 Executive summary of the arguments of Norway  D-22 
Annex D -9 Executive summary of the arguments of Paraguay  D-25 
Annex  D-10 Executive summary of the arguments of Chinese Taipei  D-26 WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  ANNE X E 
IMPORT LICENSING PRO CEDURES FOR HORTICUL TURAL PRODUCTS  AND FOR ANIMALS AND 
ANIMAL PRODUCTS  
Contents  Page  
Annex  E-1 Flow chart concerning Indonesia's Import Licensing Procedures for Horticultural 
Products  E-2 
Annex  E-2 Flow chart concerning Indonesia' s  Import Licensing Procedures for Animals 
and Animal Products  E-3 WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  ANNEX A -1 
PRELIMINARY RULING O F THE PANEL  
1  PROCEDURAL BACKGROUN D 
1.1.  On 11 December 2015, Indonesia submitted to the Panel a request for a preliminary ruling 
concerning the consistency of New Zealand's and the United  States' panel requests and first 
written submissions with the requirements of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes (DSU).1 Specifically, Indonesia sought a  ruling from the 
Panel  finding tha t:  
a. the co -complainants' "apparent" claims under Article  III:4 of the GATT  1994 and 
Article  3.2 of the Agreement on Import Licensing Procedures (Import Licensing 
Agreement)  are outside the Panel's terms of reference; and  
b. the co -complainants' failure in the ir panel requests as well as their first written 
submissions to meet the requirements of Article  6.2 of the DSU has "clearly prejudiced, 
and continues to prejudice " the preparation of Indonesia's defence, thereby violating 
Indonesia's right to due process in these proceedings.2 
1.2.  In response to the Panel's invitation to provide their views on Indonesia's request, the 
United  States and New Zealand provided a joint communication on 21 December 2015.3 The Panel 
also provided third parties with an opportunity to comment on the preliminary ruling request prior 
to the submission of Indonesia's first written submission and therefore before the date specified in 
the Panel's timetable for third party submissions. Only Australia and Brazil took advantage of this 
opportu nity and submitted to the Panel on 6 January 2016 their comments on Indonesia's 
preliminary ruling request.  
1.3.  Having carefully considered Indonesia's request, the written comments of the co - 
complainants and of the above -mentioned third parties, and given In donesia's request  that we rule 
on this matter  before the first substantive meeting4, the Panel decided to communicate its 
conclusions on Indonesia's request on 27 January 2016 , which was prior to the  first substantive 
meeting. At that time, the Panel indic ated that, following prior practice5 and in the interest of the 
efficiency of proceedings, more detailed reasons in support of those conclusions would be provided 
as soon as possible and, in any event, prior to the date of issuance of the Interim Report.6 Our 
ruling is set forth below and includes the conclusions issued to the parties on 27 January 2016.  
2  MAIN ARGUMENTS OF TH E PARTIES AND THE TH IRD PARTIES  
2.1  Main arguments of the parties  
2.1.1   Indonesia  
2.1.  Indonesia requests the Panel to issue a preliminary ruling fi nding that the first written 
submissions of the United States and New Zealand are inconsistent with the requirements of the 
DSU.7 Specifically, Indonesia contends that the co -complainants' "potential claims" under 
Article  3.2 of the Import Licensing Agreem ent and Article  III:4 of the GATT  1994 were "not 
properly identified " in their respective panel requests and , therefore , the Panel should  "exclude 
                                                
1 Indonesia's request for a preliminary ruling, para.  1. 
2 Indonesia's request for a preliminary ruling, para.  28. 
3 Co-complainants' joint comments on Indonesia's preliminary ruling request.   
4 Indonesia's request for a preliminary ruling, para.  3. 
5 See, for instance, Panel Reports, Canada –Renewable Energy/Canada –Feed in Tariff Program , 
para. 7.8; and United States – Lamb , paras. 5.15 -5.16. 
6 Conclusions of the Preliminary Ruling by the Panel, 27 January 2016, para. 1.3.  These conclusions will 
form part of the Interim Report of the Panel.  
7 Indonesia's request for a preliminary ruling, para. 1.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  these potential claims " from its terms of reference.8 For Indonesia, the inconsistencies between 
the panel re quests and the first written submissions have prejudiced and continue to prejudice the 
preparation of Indonesia's defen ce and compromise the due process objectives of the DSU, in 
particular, of Article  6.2.9 
2.2.  Indonesia submits that under Article 7.1 of the DSU, for a party's claim to fall within the 
Panel's terms of reference, the complainant must "sufficiently identify" the claim in the panel 
request10, that is, it must refer to the specific measure(s) at issue and the legal basis of the 
complaint. Indonesia  finds support in the panel's findings in EC – Tube or Pipe fittings11 as well as  
the Appellate Body's findings in EC and Certain Member States – Large Civil Aircraft and China – 
Raw Materials , where, according to Indonesia, it was determined that failure t o list or refer to  
specific measures or claims in the panel request would result in the claims being outside the 
Panel's jurisdiction.12 
2.3.  Indonesia argues that the co -complainants' panel requests only "describe " claims under 
Article XI:1 of the GATT  1994 and  Article 4.2 of the Agreement on Agriculture , but13 their first 
written submissions "raised new claims ", namely, Article  III:4 of the GATT  1994 in the case of New 
Zealand, and Article  3.2 of the Import Licensing Agreement in the case of both New Zealand and  
the United States.  
2.4.  Indonesia considers that the claims under Article  III:4 of the GATT  1994 and Article  3.2 of 
the Import Licensing Agreement  were not properly identified because these provisions were only 
mentioned in footnotes to the panel requests and , to the extent the co -complainants refer to 
possible violations of these provisions by Indonesia, they do so in "conditional and ambiguous 
language".14 In its view, this has resulted on Indonesia and third parties being "left to wonder " 
whether the co -comp lainants "meant to include " claims under these provisions within their panel 
requests or not.15 Indonesia re lies on the following definition of "footnote" found in  the Oxford 
Advanced Learner's Dictionary : "(1) an extra piece of information that is printed at the bottom of a 
page in a book or (2) (of an event or a person) that may be remembered but only as 
something/somebody that is not important ".16 Indonesia observes  that the identification of the 
legal basis of claims in a panel request is "very important and not an extra piece of information ."17 
According to Indonesia, the Pan el should therefore find that these claims are outside its terms of 
reference.18  
2.5.  Indonesia further argues that, should the Panel consider  that "putting the legal basis of a 
claim in th e footnotes is acceptable "19, it nevertheless  contends that those claims are not 
sufficiently identified . Indonesia  reproduces footnotes  5, 7, 8, 12 and 14 of the panel requests, 
noting that they "only repeat treaty provisions" and  arguing that there is "no  proper or sufficient 
explanation" of how the measures at issue are  inconsistent with Article  III:4 of the GATT  1994 or 
Article  3.2 of the Import Licensing Agreement.20 Indonesia recalls that in China —Raw Materials , 
the Appellate Body determined that the cl aims were not sufficiently identified because the 
complainants "merely 'challeng[ed] some (groups of) measures as inconsistent with some (groups) 
of the listed WTO obligations'" and therefore the complainants did not "'provide the basis on which 
the Panel and China could determine with sufficient clarity what 'problem' or 'problems' were 
alleged to have been caused by which measures.'"21 Indonesia asserts that the situation in the 
                                                
8 Indonesia's request for a preliminary ruling , para.  1. Indonesia refers to "apparent claims" in 
paras.  13-14 and 27 -28. 
9 Indonesia's request for a preliminary ruling, para.  2. 
10 Indonesia's request for a preliminary ruling, para.  5. 
11 Indonesia's request for a preliminary ruling, para.  6 (referring  to Panel Report, EC – Tube or Pipe 
Fittings , para. 7.14).  
12 Indonesia's request for a preliminary ruling, para.  6 (referring to Appellate Body Report, EC and 
certain member  States – Large Civil Aircraft, para 640, and Appellate Body Report, China – Raw Ma terials , 
para. 219). 
13 Indonesia's request for a preliminary ruling, para. 7.  
14 Indonesia's request for a preliminary ruling, para. 10.  
15 Indonesia's request for a preliminary ruling, para. 10.  
16 Indonesia's request for a preliminary ruling, para.  11. (emphasis original)  
17 Indonesia's request for a preliminary ruling, para. 12 . (underlining original)  
18 Indonesia's request for a preliminary ruling, para. 13.  
19 Indonesia's request for a preliminary ruling, para. 1 4. 
20 Indonesia's request for a preliminary ru ling, paras.14 -20. 
21 Indonesia's request for a preliminary ruling, para . 20. WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  present dispute is "exactly the situation here" because the complainants only repeat the treaty 
provisions in a footnote and do not explain how the measures at issue , which consist of various 
laws and regulations,  violate the said provisions.22  
2.6.  For Indonesia, the "confusion " resulting from this lack of clarity is compounded by the f act 
that the panel requests are identical, but the first written submissions are different with respect to 
the two relevant provisions. Indonesia explains that while the United States' first written 
submission only "appear ed to advance " a claim under Artic le 3.2 of the Import Licensing 
Agreement, New Zealand's first written submission "attempted to invoke" both Article  III:4 of the 
GATT  1994 and Article  3.2 of the Import Licensing Agreement.23 
2.7.  Indonesia also argues that it has suffered prejudice because it "does not sufficiently 
understand the new claims"24 under Article  III:4 of the GATT  1994 and Article  3.2 of the Import 
Licensing Agreement that were raised by the co -complainants in their first written submissions. 
Indonesia asserts that it is "critical" tha t a panel request provide the responding party "with 
sufficient clarity of the case it has to answer" and that a party's submissions during panel 
proceedings cannot cure a defect in a panel request.25 In Indonesia's view, these "apparent" 
claims were not su fficiently identified in the panel requests. Indonesia submits that the fact that 
these claims were only mentioned in footnotes and that the footnotes only repeated the legal 
provisions "without ever explaining why " the measures at issue violate these two provisions are 
"acts of WTO inconsistency that clearly prejudice Indonesia's ability to defend itself " in this 
dispute.26  
2.1.2   New Zealand and United States (co -complainants)  
2.8.  In a joint communication, the co -complainants assert that  Indonesia's arguments  "lack merit " 
and submit that the panel requests "on their face " satisfy the requirements of Article  6.2 of the 
DSU with respect to the claims under Article  3.2 of the Import Licensing Agreement and 
Article  III:4 of the GATT  1994. The co -complainants request the Panel to find that the claims at 
issue are properly within its terms of reference.27  
2.9.  Concerning Indonesia's argument that the relevant claims were not properly identified 
because they were included  in footnotes, the co -complainants submit that Indonesia of fers no 
analysis as to why the use of footnotes in discussing the claims is, by itself, inconsistent with 
Article  6.2 of the DSU. They observe that Indonesia does not explain why specifying  a provision 
alleged to be breached  in a footnote  "would itself render the identification of that provision 
unclear "28 and note that Indonesia "simply suggests" that placement in a footnote renders the 
language "not important" .29 The co -complainants point out that "[s]imply characterizing" a 
footnote as "not important" runs contrary the "general usage of footnotes in treaties and 
international agreements ", and they provide the example of footnote 1 to Article 4.2 of the 
Agreement on Agriculture , which  convey s key aspects of the legal obligation therein.30 The co -
complainants further assert that in determining whether a panel request compl ies with Article  6.2 
of the DSU, a panel must evaluate the request "as a whole " and "on the basis of the language 
used".31 In the co -complainants' view, nothing in Article  6.2 indicates that a complainant's claims 
would "somehow be limited by the format " in which those claims are presented.32 In support of 
their position, the co -complainants  also refer to  US – Products from China  where  the Appellate 
                                                
22 Indonesia's request for a preliminary ruling, paras. 20 -21. 
23 Indonesia's request for a preliminary ruling, para. 22.  
24 Indonesia's request for a preliminary ruling, para. 27.  
25 Indonesia's request for a preliminary ruling, para. 2 5. 
26 Indonesia's request for a preliminary ruling, para. 27.  
27 Co-complainants' joint comments on Indonesia's preliminary ruling request, paras. 1 -2. 
28 Co-complainants' joint comments on Indonesia's pre liminary ruling request, para . 10. 
29 Co-complainants' joint comments on Indonesia's preliminary ruling request, para . 10. 
30 Co-complainants' joint comments on Indonesia's preliminary ruling request, para. 10.  
31 The co -complainants refer to Appellate Body R eports, China – HP-SSST , para. 5.13 ; EC – Fasteners , 
para. 562 ; US – Carbon Steel , para. 127 (stating that compliance with Article  6.2 is determined "on the merits 
of each case having considered the panel request as a whole, and in light of attendant circu mstances"). Co -
complainants' joint comments on Indonesia's preliminary ruling request, para. 11.  
32 Co-complainants' joint comments on Indonesia's preliminary ruling request, para.  11. WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  Body observed that  "footnotes are part of the t ext of a Panel request, and may be relevant to the 
identification of the measure at issue or the presentation of the legal basis of the complaint".33 
2.10.   Concerning Indonesia's argument that the language setting out the claims under Articles  3.2 
of the Import L icensing Agreement and III:4 of the GATT  1994 is "conditional and ambiguous", the 
co-complainants submit that it lacks merit because Indonesia failed both to identify the allegedly 
conditional and ambiguous language and to explain the reasons  why the langu age does not meet 
the requirements of Article 6.2 .34 While considering that the Panel may reject Indonesia's 
argument  on that basis alone , the co-complainants also argue that, to the extent that Indonesia is 
arguing that the relevant claims are outside of t he Panel's terms of reference because they are 
conditional claims, this argument lacks any legal basis and the Panel should reject it.35 The co -
complainants contend that nothing in the DSU precludes a complainant from pursuing conditional 
or alternative cla ims and  they refer to  the observation of the panel in Korea – Commercial Vessels  
that raising complementary or alternative claims is very common in WTO dispute settlement . The 
co-complainants affirm that , as with any claim, a claimant intending to pursue complementary or 
alternative claims "simply must", by the terms of Article  6.2, refer to each of the relevant 
provisions  in the panel request.36 
2.11.   The co -complainants also find no merit in  Indonesia's argument that the sufficiency of the 
panel requests was und ermined because, despite identical panel requests, New Zealand pursu ed 
its claim under Article  III:4 of the GATT  1994 in its first written submission, while the United 
States did not.  The co -complainants consider that a complainant is not required to pursu e all the 
claims referenced in its panel request, and they maintain that a decision not to pursue a claim is 
not relevant in determining whether a claim falls within a panel's terms of reference .37  
2.12.   The co -complainants also reject Indonesia's argument that the panel requests did not 
provide sufficient explanation of how the measures are inconsistent with the cited provisions. 
According to the co -complainants, Indonesia misstates the requirements of Article  6.2 of the 
DSU.38 Referring to the Appellate Body 's findings  in China —HP–SSST , the co -complainants argue 
that to comply with Article  6.2, one need only state the claim at issue ; argumentation "as to why 
and precisely how" the measure breaches the relevant provision is not required .39 They maintain  
that the pa nel requests properly identify  the claims under Article 3.2 of the Import Licensing 
Agreement and Article III:4 of the GATT 1994: they identify the measures imposed as relevant to 
the claims, describe their operation, set forth  the legal bases for the clai ms by listing and 
summarizing the provisions of the covered agreements with which these measures are 
inconsistent, and connect the aspects of the measures relevant to the claims to the relevant 
provisions. As such, the requirements of Article  6.2 of the DS U are satisfied.40 
2.13.   The co -complainants further argue that Indonesia misunderstands the difference between 
arguments and claims and they assert that the disputes referenced by Indonesia do not support 
the conclusion that the panel requests do not meet the st andard of Article  6.2.41 The co -
complainants  point out that  in EC – Tube or Pipe Fittings , the panel found that the  panel request 
did not identify claims under Articles 6.9, 6.13, 9.3, and 12.1 of the Anti -Dumping Agreement 
because it referred generally to Articles 6, 9, and 12, and those provisions contain multiple and 
diverse obligations that relate to subject -matters different from the obligations  in Articles 6.9, 
6.13, 9.3 and 12.1.42 The co -complainants contrast the panel requests in this dispute, observ ing 
                                                
33 Co-complainants' joint comments on Indonesia's preliminary ruling requ est, para. 11.  
34 Co-complainants' joint comments on Indonesia's preliminary ruling request, para. 13.  
35 Co-complainants' joint comments on Indonesia's preliminary ruling request, para. 13.  
36 The co -complainants refer to the Panel Report, Korea – Commercial  Vessels , paras. 7.2.28 -7.2.29. 
Co-complainants' joint comments on Indonesia's preliminary ruling request, para. 14.  
37 In support of this statement, the co -complainants quote the Panel Report, China – Raw Materials , 
para. 7.23; and the Appellate Body Repor t, EC – Bananas III , para. 145. Co-complainants' joint comments on 
Indonesia's preliminary ruling request, para. 15.  
38 Co-complainants' joint comments on Indonesia's preliminary ruling request, para. 19.  
39 Co-complainants' joint comments on Indonesia's pre liminary ruling request, para. 19.  
40Co-complainants' joint comments on Indonesia's preliminary ruling request, para s. 19-23. 
41 Co-complainants' joint comments on Indonesia's preliminary ruling request, para. 24.  
42 Co-complainants' joint comments on Indones ia's preliminary ruling request, para. 25 (referring to 
Panel Report, EC – Tube or Pipe Fittings , para. 7.14).  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  that they cite the specific provisions in question,  summarize the relevant obligations , and describe 
the aspects of the challenged measures relevant to the claim.43  
2.14.   The co -complainants contend that the facts in China – Raw Materials  can be distinguishe d 
from the present instance because,  in that dispute , the panel request listed 37 legal instruments 
followed by a wide -ranging list of obligations , such  that the problems could not  be discerned from 
the panel request given the number of possible combinatio ns. The co -complainants argue that, in 
contra st, the panel requests in these proceedings describe the challenged measures in detail, 
including the problematic aspects of their operation, identify the legal instruments through which 
each measure was imposed , set out the provisions with which the measures are inconsistent, and 
summarize the relevant obligation.44 
2.15.   The co -complainants rely on Appellate Body reports in arguing that, where the provision 
with which a challenged measure is alleged to be inconsistent  consists of a single paragraph, "a 
simple reference to that provision may be sufficient to meet the standard of Article  6.2"45 and that, 
even where a provision contains multiple obligations, a reference to that provision, along with a 
"brief narration of t he problem " caused by the challenged measure, is "sufficient " to meet the 
standard of Article  6.2 of the DSU.46 The co -complainants observe  that, in this dispute, each 
relevant provision consists of a single paragraph and the panel requests both identify th e relevant 
provisions and summarize the relevant obligations , thus "more than" meeting the standard of 
Article 6.2 .47 
2.16.   Regarding Indonesia's arguments that the alleged failure by the co -complainants to 
adequately identify their claims in their panel requests  prejudiced Indonesia's ability to defend 
itself in this dispute, the co -complainants respond  that the panel requests "contain the information 
necessary" to satisfy the legal standard in Article 6.2."48 They contend that the evaluation of the 
sufficiency of  a panel request is "based on the face of the panel request itself " and, therefore , it 
would "not also be necessary " to demonstrate that the responding party was prejudiced by the 
inconsistency.49 The co -complainants also submit that , "aside from the fact t hat prejudice to the 
respondent is not relevant to the inquiry",  Indonesia has not been prejudiced  because Indonesia 
was made aware of the claims under Article  3.2 of Import Licensing Agreement and Article  III:4 of 
the GATT  1994 in the panel requests as we ll as in the requests for consultations.50 In the co -
complainants' view, Indonesia has provided no details in support of its allegation of prejudice and 
suggest that this situation is analogous to that in Korea – Dairy , where the Appellate Body rejected 
Korea's claim that it had suffered prejudice on the basis that it had "assert[ed] that it had 
sustained prejudice, but offered no supporting particulars in its appellant's submission nor at the 
oral hearing ."51 
2.2  Main arguments of the third parties  
2.17.   Following the  Panel's invitation to the third parties to comment on Indonesia's request for a 
preliminary ruling, comments were received from Australia and Brazil. No comments were received 
from Argentina, Canada, China, the European Union, India, Japan, Korea, Norway,  Paraguay, 
Singapore, Chinese Taipei, or Thailand. We summarise below the arguments presented by 
Australia and Brazil.  
                                                
43 Co-complainants' joint comments on Indonesia's preliminary ruling request, para 25.  
44 Co-complainants' joint comments on Indonesia's preliminar y ruling request, para 26.  
45 Co-complainants' joint comments on Indonesia's preliminary ruling request, para. 27 (referring to  
Appellate Body Report, US – Countervailing and Anti -Dumping Measures (China) , para. 4.19; Appellate Body 
Report, China – HP-SSST , para. 5.22; and Appellate Body Report,  US – Products from China , para. 4.21.  
46 Co-complainants' joint comments on Indonesia's preliminary ruling request, para. 27 (referring to  
Appellate Body Report, US – Countervailing and Anti -Dumping Measures (China) , para. 4.28; Appellate Body 
Report, China – HP-SSST , para. 5.34).  
47Co-complainants' joint comments on Indonesia's preliminary ruling request, para. 27.  
48 Co-complainants' joint comments on Indonesia's preliminary ruling request, para. 2 8. 
49 Co-complainant s' joint comments on Indonesia's preliminary ruling request, para. 2 9 (referring to 
Appellate Body Report, China – Raw Materials , para. 233).  
50 Co-complainants' joint comments on Indonesia's preliminary ruling request, paras. 29 -30. 
51 Co-complainants' join t comments on Indonesia's preliminary ruling request, para. 31 (referring to  
Appellate Body Report, Korea – Dairy , para. 131).  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  2.2.1   Australia  
2.18.   Australia is of the view that the co -complainants' claims under Article  III:4 of the 
GATT  1994 and Article  3.2 of the Import L icensing Agreement were "sufficiently identified " in the 
panel requests to fall within the Panel's terms of reference.52 Australia points out that it was aware 
of and understood the claims under these provisions.53 For Australia, there is nothing in the text  of 
Article  6.2 of the DSU that suggests that footnotes are not part of a panel request , nor that this 
provision imposes any formatting or structural requirements.54 Referring to the Appellate Body 
Report in US – Carbon Steel , Australia explains that compli ance with the requirements of 
Article  6.2 "must be determined on the merits of each case, having considered the panel request 
as a whole, and in the light of attendant circumstances. "55 Australia further submits that it 
understood the claims under Article  III:4 of the GATT  1994 and Article  3.2 of the Import Licensing 
Agreement "to be complementary, alternative or additional claims to those contained in the body 
of the text"  and hence it was " reasonable for the Complainants to include these claims in footnote s 
to their panel requests ."56  
2.19.   Regarding Indonesia's argument that the claims under Article  III:4 of the GATT  1994 and 
Article  3.2 of the Import Licensing Agreement use "conditional and ambiguous language", Australia 
observes that the language of the panel requests "reasonably reflects " that these claims can be 
considered complementary, alternative or additional claims to those in the text.57 Australia notes 
that in Korea – Commercial Vessels , the panel indicated that if a party wishes to pursue claims 
under multiple provisions , whether complementarily or alternatively, it is not only permitted by 
Article 6.2 to refer to these claims  in its panel request, but it is required  to do so .58 According to 
Australia, by notifying Indonesia of the complementary, alterna tive or additional claims under 
Article  III:4 of the GATT  1994 and Article  3.2 of the Import Licensing Agreement, the co -
complainants' panel requests "served to fully inform " Indonesia of the nature of their case.59 
2.20.   Australia disagrees with Indonesia's argu ment that the co -complainants' panel requests 
merely challenged some groups of measures as inconsistent with some groups of the listed WTO 
obligations and argues that the claims in each footnote disputed by Indonesia "clearly relate " to 
the measures in the  section containing that footnote.60 Australia also disagrees with Indonesia's 
position that the co -complainants have "only repeat [ed] treaty provisions " in the Panel request  
with the result that these provisions fall outside the Panel's terms of reference .61 Australia argues 
that complainants are not required to set out the arguments supporting their claims in their panel 
requests and relies on  the Appellate Body Report in EC – Bananas III  referring to the distinction 
between claims and arguments  and noting that Article  6.2 of the DSU  requires that the claims,  but 
not the arguments,  be specified sufficiently in the panel request in order for the defending party 
and the third parties to know the legal basis of the complaint .62 Australia also refers to the 
Appellate Body Report in Korea – Dairy , which stated that the "mere listing " of provisions alleged  
to have been  breach ed "may be sufficient"  to meet the req uirements of Article  6.2, depending on 
whether the respondent's ability to defend itself was prejudiced.63 Australia thus argues that the 
panel requests "have clearly exceeded the minimum requirements"  because the claims  are "linked 
to specific Indonesian m easures, identify the specific articles that these measures violate, and also 
provide a brief explanation of why the measures violate the relevant articles ."64 For Australia, the 
information provided in the panel requests "clearly exceed s by a considerable margin " the 
standard articulated in EC –Biotech Products  that a party is not required to explain, in the panel 
                                                
52 Australia's comments on Indonesia's preliminary ruling request of 11 December 2015, para. 3.  
53 Australia's comments on Indonesi a's preliminary ruling request of 11 December 2015, para. 5.  
54 Australia's comments on Indonesia's preliminary ruling request of 11 December 2015, paras. 6 -7. 
55 Australia's comments on Indonesia's preliminary ruling request of 11 December 2015, para. 7 
(referring to Appellate Body Report, US – Carbon Steel , para. 127).  
56 Australia's comments on Indonesia's preliminary ruling request of 11 December 2015, para. 8.  
57 Australia's comments on Indonesia's preliminary ruling request of 11 December 2015, para. 9.  
58 Australia's comments on Indonesia's preliminary ruling request of 11 December 2015, para. 10 
(referring to Panel Report, Korea — Commercial Vessels , para. 7.2).  
59 Australia's comments on Indonesia's preliminary ruling request of 11 December 2015, para. 10 . 
60 Australia's comments on Indonesia's preliminary ruling request of 11 December 2015, para. 11.  
61 Australia's comments on Indonesia's preliminary ruling request of 11 December 2015, para. 12.  
62 Australia's comments on Indonesia's preliminary ruling reque st of 11 December 2015, para s. 12-13. 
(referring to Appellate Body Report, EC – Bananas III , paras. 141 -143).  
63 Australia's comments on Indonesia's preliminary ruling request of 11 December 2015, para. 13 
(referring to Appellate Body Report, Korea — Dairy , paras. 124 and 127).  
64 Australia's comments on Indonesia's preliminary ruling request of 11 December 2015, para. 14.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  request, the reasons for identifying particular treaty provisions , or whether all of the provisions 
listed are alleged to apply to the same aspec t of a particular measure, or whether some provisions 
are alleged to apply to different aspects of the same measure .65 
2.21.   Regarding Indonesia's  argument that it has suffered prejudice,  Australia asserts that the co -
complainant's panel requests fulfil led the du e process objective of notifying Indonesia of the nature 
of the  complaints  and that Indonesia's ability to defend itself has not been prejudiced.66 Australia 
recalls that in assessing a claim of prejudice  in Thailand – H-Beams , the Appellate Body  observed 
that "the fundamental issue in assessing claims of prejudice is whether a defending party was 
made aware  of the claims  presented by the complaining party, sufficient to allow it to defend 
itself."67According to Australia, Indonesia has not argued that it was  unaware of the claims 
regarding Article  III:4 of the GATT  1994 and Article  3.2 of the Import Licensing Agreement in the 
panel requests  and it contends that the panel requests "fully notif[ied]" Indonesia of "all the 
claims" that the co -complainants could raise in their first written submissions .68 
2.2.2   Brazil  
2.22.   Brazil asserts that nothing in the text of Article  6.2 of the DSU imposes a specific  format for 
the presentation of claims in panel requests and, accordingly, the presentation of claims in 
footnotes "does n ot, by itself " violate the obligation under Article  6.2 of the DSU, "as long as the 
claim is clearly presented. "69 Brazil "fails to see " how the fact that the claims were presented in 
footnotes "would affect their nature or their clarity ", and observes that  there are several footnotes 
in WTO Agreements  "that are crucial for the definition of the set of rights and obligations of the 
Members … and some of them are also essential for the interpretation of the extent of some 
multilateral obligations. "70 Brazil ex plains that a footnote provides "a piece of additional 
information"  related to a specific issue such that a claim established in a footnote could be read as 
"in addition" to those established in the text of the panel request itself."71 In Brazil's view, 
excluding a claim from the scope of a panel 's jurisdiction based only on the fact that it was 
presented in a footnote would amount to endors ing "an overly formalistic approach that is contrary 
to the main objective of the DSU, which is to secur e a prompt and positive solution to a dispute. "72 
Thus for Brazil, the " fundamental question " before the Panel is whether the panel request , "be it in 
a footnote or elsewhere, satisfies the objective of providing notice to the Respondent  and to third 
parties regarding t he precise nature of the disput e."73 
2.23.   Brazil also argues that the fact that conditional language was used does not mean that the 
problem was not presented clearly . For Brazil, as long as the challenged measure is "discernible " in 
the panel request and "the leg al basis of the complaint is clearly identified ", there would be  "no 
solid reason " to dismiss the panel request and  "impede the procedure from taking  its course  with 
regard to those claims."74 Brazil considers that the challenged measure is discernible in t he panel 
request and the legal basis of the complaint is clearly identified.75 In Brazil's view, the task before 
the Panel is to objectively assess whether the claims introduced by the co -complainants in the 
panel requests fulfill the requirements of Articl e 6.2 of the DSU, "regardless of the fact that they 
were presented in footnotes or in conditional language " which , according to Brazil, is "very 
common in WTO dispute settlement proceedings. "76 
2.24.   Brazil relies on  the Appellate Body Reports in EC – Customs Mat ters and US – Continued 
Zeroing  in contend ing that, for the purposes of Article  6.2 of the DSU, it "suffices that the panel 
request sets out the 'claims ' with enough precision to allow the responding party to understand 
                                                
65 Australia's comments on Indonesia's preliminary ruling request of 11 December 2015, para. 15.  
66 Australia's comments on Indonesia's prel iminary ruling request of 11 December 2015, para. 18.  
67 Australia's comments on Indonesia's preliminary ruling request of 11 December 2015, para. 19 
(referring to Appellate Body Report, Thailand – H-Beams , para. 95).  (emphasis original)  
68 Australia's comme nts on Indonesia's preliminary ruling request of 11 December 2015, para. 20 
(referring to Appellate Body Report, Thailand – H-Beams , para. 95).  
69 Brazil's comments on Indonesia's preliminary ruling request of 11 December 2015, para. 6.  
70 Brazil's comments on Indonesia's preliminary ruling request of 11 December 2015, para. 7.  
71 Brazil's comments on Indonesia's preliminary ruling request of 11 December 2015, para.  8. 
72 Brazil's comments on Indonesia's preliminary ruling request of 11 December 2015, para. 9.  
73 Brazil's comments on Indonesia's preliminary ruling request of 11 December 2015, para.  10. 
74 Brazil's comments on Indonesia's preliminary ruling request of 11 December 2015, para.  13. 
75 Brazil's comments on Indonesia's preliminary ruling request of 11 De cember 2015, para. 13.  
76 Brazil's comments on Indonesia's preliminary ruling request of 11 December 2015, para. 14.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  with clarity " the alleged violations  and, relying on EC—Bananas III , highlights that there is no 
obligation to develop in the panel request the legal arguments that support the claims  or to 
provide a  detailed explanation as to why and how the measures are inconsistent with the relevant 
WTO provisions .77 Brazil considers that the requirements of Article 6.2 of the DSU were fulfilled in 
the current dispute  because  the specific measures at issue with regard to Article  3.2 of Import 
Licensing Agreement and Article  III:4 of GATT  1994 "were duly ide ntified " and the relevant  
provisions, including the specific obligations under each of the m, "were indicated. "78 Furthermore, 
Brazil considers that there is "no ambiguity or lack of clarity" in the language of the panel 
requests, which is sufficient to "present the problem clearly ."79 In Brazil's view, "nothing in the 
way the panel requests were drafted jeopardized Indonesia's ability to identify the measures and 
claims " and to present its defen ce.80 
3  EVALUATION BY THE PA NEL 
3.1  Introduction  
3.1.  The Panel is tasked wit h determining  whether the co -complainants' claims pursuant to 
Article  III:4 of the GATT  1994 and Article  3.2 of the Import Licensing Agreement are within the 
Panel's terms of reference. To do so, we need to examine whether the panel requests comply with 
the requirements set out in Article  6.2 of the DSU,  which  reads as follows:  
2.  The request for the establishment of a panel shall be made in writing. It shall 
indicate whether consultations were held, identify the specific measures at issue and 
provide a b rief summary of the legal basis of the complaint sufficient to present the 
problem clearly. In case the applicant requests the establishment of a panel with other 
than standard terms of reference, the written request shall include the proposed text 
of spec ial terms of reference.  
3.2.  As recapped by the Appellate Body in China – Raw Materials , Article  6.2 of the DSU serves a 
"pivotal function" in WTO dispute settlement and sets out  two key requirements that a 
complainant must satisfy in its panel request, namely,  that it must (i)  identify the specific 
measures at issue and (ii)  provide a brief summary of the legal basis of the complaint sufficient to 
present the problem clearly.81 According to the Appellate Body, these two elements constitute the 
"matter referred t o the DSB" , which forms the basis for a panel's terms of reference under 
Article  7.1 of the DSU.82 If either element is not "properly identified ", the matter would not fall 
within the panel's terms of reference.83 Fulfilment of these requirements is "not a m ere 
formality"84; on the contrary, as the Appellate Body has clarified , a panel request serves two 
essential purposes: (i)  to define the scope of the dispute and (ii)  to serve the due process 
objective of notifying the respondent and third parties of the na ture of the complainant's case.85  
3.3.  Indonesia's objections refer to the adequacy of the panel requests in meeting the 
requirements of  Article 6.2 with respect to two  claims , namely, th ose pursuant to Article  III:4 of 
the GATT  1994 and Article  3.2 of the Impo rt Licensing Agreement. Thus Indonesia's objections do 
                                                
77 Brazil's comments on Indonesia's preliminary ruling request of 11 December 2015, paras. 15 -17 and 
footnote 11  (referring to Appellate Body  Report, EC – Selected Customs Matters , para. 130 , Appellate Body 
Report, US – Continued Zeroing , para. 169 , and Appellate Body Report, EC--Bananas III , para. 141 ). 
78 Brazil's comments on Indonesia's preliminary ruling request of 11 December 2015, para. 18.  
79 Brazil's comments on Indonesia's preliminary ruling request of 11 December 2015, para.  20. 
80 Brazil's comments on Indonesia's preliminary ruling request of 11 Decembe r 2015, para. 21.  
81 Appellate Body Report, China — Raw Materials , para. 219. Article  6.2 of the DSU also requires that 
the request be made in writing and indicate whether consultations were held.  
82 Appellate Body Report, EC and certain member States — Large Civil Aircraft , para. 639 (referring to 
Appellate Body Report, Guatemala – Cement I , paras. 72 and 73; Appellate Body Report, US – Carbon Steel , 
para. 125; Appellate Body Report, US – Continued Zeroing , para. 160; Appellate Body Report, US – Zeroing 
(Japan) (Article 21.5 – Japan) , para. 107; and Appellate Body Report, Australia – Apples , para.  416).  
83Appellate Body Report, China — Raw Materials , para. 219 (referring to Appellate Body Report US – 
Carbon Steel , para. 125).  
84 Appellate Body Report, China — Raw Materials , para. 219 (referring to Appellate Body Report, 
Australia – Apples , para. 416).  
85 Appellate Body Report, EC and certain member States — Large Civil Aircraft , para. 639 (referring to 
Appellate Body Report, US – Carbon Steel , para. 126, in turn,  referring to Appellate Body Report, Brazil – 
Desiccated Coconut , p. 22, DSR 1997:I, 167, at 186; Appellate Body Report, EC – Chicken Cuts , para.  155; 
and Appellate Body Report, US – Zeroing (Japan) (Article 21.5 – Japan) , para. 108).  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  not raise issues under the first element; they concern only the second requirement of Article  6.2 of 
the DSU, i.e. to provide a brief summary of the legal basis of the complaint sufficient to present 
the problem clearly. We recall that, for the purposes of Article  6.2 of the DSU, a claim refers to an 
allegation "that the respondent party has violated, or nullified or impaired the benefits arising 
from, an identified provision of a particular agreement".86  
3.4.  The Appellate Body has underscored that, a t a minimum, a panel request must list the 
article(s) of the covered agreement(s) claimed to have been violated.87 Indeed, the 
"[i]dentification of the treaty provisions claimed to have been violated by the respo ndent is always 
necessary" if the legal basis of the complaint is to be "presented at all ."88 In addition, in order "to 
present the problem clearly", a panel request must "plainly connect the challenged measure(s) 
with the provision(s) of the covered agreem ents claimed to have been infringed".89  
3.5.  It is also well settled that, w hile a panel request must set out the claims, there is no 
requirement in Article  6.2 that a complaining party include in its panel request arguments that 
seek "to  demonstrate that the r esponding party's measure does indeed infringe upon the identified 
treaty provision".90 Hence a  "brief summary" of the legal basis of the complaint "aims to explain 
succinctly  how or why the measure at issue is considered by the complaining Member to be 
violating the WTO obligation in question"91 and is to be distinguished from arguments in support of 
a particular claim." The Appellate Body has indicated that w hether such a brief summary is 
"sufficient to present the problem clearly" is to be assessed on a ca se-by-case basis, keeping in 
mind the nature of the measure(s) at issue, and the manner in which it is (or they are) described 
in the panel request, as well as the nature and scope of the provision(s) of the covered 
agreements alleged to have been violated .92  
3.6.  As we explained above, Indonesia argues , inter alia , that the way that the co -complainants  
set out and later argued the two claims at issue prejudices its ability to defend itself in this 
dispute.93 We agree with the Appellate Body that  due process is an essential feature of the 
WTO dispute settlement system94 and that,  in addition to  constituting the basis for a panel's terms 
of reference, a panel  request serves the due process objective of notifying the respondent and 
third parties of the nature of the complainant's case.95 We are mindful of the Appellate  Body's 
clarification that due process "is not constitutive of, but rather follows from, the proper 
establishment of a panel's jurisdiction".96 
                                                
86 Appellate Body Repo rt, US – Countervailing Measures (China) , para. 4.8 (referring to Appellate Body 
Report, Korea – Dairy , para.  139).  
87 Appellate  Body Reports, Korea – Dairy , paras. 123 and 124 (referring to Appellate  Body Reports, 
Brazil – Desiccated Coconut , p. 22, DSR 19 97:I, p. 186; EC – Bananas III , paras. 145 and 147; and Indonesia 
– Patents (US) , paras.  89, 92, and 93); US – Carbon Steel , para. 130. See also Appellate Body Report, US – 
Countervailing Measures (China) , para.  4.8. 
88 Appellate Body Report, US – Counterva iling Measures (China) , para. 4.8 (referring to Appellate Body 
Report, Korea – Dairy , para.  124 (referring to Appellate Body Reports, Brazil – Desiccated Coconut , p. 22, 
DSR 1997:I, p. 186; EC – Bananas III , paras.  145 and 147; and India – Patents  (US), paras. 89, 92, and 93)).  
89Appellate Body Report, China — Raw Materials , para. 220 (referring to Appellate Body Report, US – Oil 
Country Tubular Goods Sunset Reviews , para.  162).  
90 Appellate Body Report, US – Countervailing Measures (China) , para. 4.8 (referr ing to Appellate Body 
Report, Korea – Dairy , para.  139 (referring to Appellate Body Reports, EC – Bananas  III, para.  141; India – 
Patents (US) , para.  88; and EC – Hormones , para.  156)).  
91 Appellate Body Report , US – Countervailing Measures (China) , para. 4.9 (referring to Appellate Body 
Report, EC – Selected Customs Matters , para.  130. (italics original; underlining added)). In EC – Selected 
Customs Matters , the Appellate Body also stated that "Article  6.2 of the DSU requires that the claims – not the 
argum ents – be set out in a panel request in a way that is sufficient to present the problem clearly". (Ibid., 
para. 153 (referring to Appellate Body Reports, EC – Bananas III , para.  143; India – Patents (US) , para.  88; 
Korea – Dairy , para.  139; and Dominican R epublic – Import and Sale of Cigarettes , para.  121)) .  
92 Appellate Body Report, US – Countervailing Measures (China) , para. 4.9. 
93 Indonesia's request for a preliminary ruling, para. 27.   
94 Indeed, "[d]ue process protection guarantees that the proceedings are conducted with fairness and 
impartiality, and that one party is not unfairly disadvantaged with respect to other parties in a dispute". 
Appellate  Body Report, US – Continued Suspension , para.  433. 
95 Appellate Body report, US – Countervailing Measures ( China) , para . 4.6.  
96 Appellate  Body Report , EC and certain member States – Large Civil Aircraft , para.  640. See also  
Appellate  Body Report, China – Raw Materials , para.  233. See also , Appellate Body Report, US – Countervailing 
Measures (China) , footnote  435. WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  3.7.  We shall therefore proceed to examine the panel  requests to a scertain their conformity with  
the second key  requirement of Article  6.2 of the DSU with respect to the claims under Article  III:4 
of the GATT  1994 and Article  3.2 of the Import Licensing Agreement . There is considerable  
guidance in past panel and Appellat e Body reports on how we should proceed with such an 
examination. Bearing this guidance in mind , we will carefully scrutinize the language used in the 
panel requests97 and will be mindful that compliance with the requirements of Article  6.2 must be 
demonstr ated on the face of the panel requests and be determined on the merits of this particular  
case, having considered the panel request s as a whole and in the light of attendant 
circumstances.98 In doing so, we acknowledge that, although we may refer to the co -complainants' 
submissions in order to confirm the meaning of the words used in the panel requests99, parties' 
submissions and statements during the panel proceedings cannot "cure" any defects in the panel 
requests.100  
3.8.  In the light of the foregoing, we procee d first to address Indonesia's contention that the 
claims pursuant to Article  III:4 of the GATT  1994 and Article  3.2 of the Import Licensing 
Agreement fail to meet the requirements of Article  6.2 of the DSU and  therefore fall outside our 
terms of reference . We will then approach Indonesia's contention  that the fact that the 
United  States did not provide argumentation on Article  III:4 of the GATT  1994 in its first written 
submission is relevant under Article  6.2 of the DSU . Next, we will examine whether the manner in 
which the co -complainants have formulated their claims pursuant to Article  III:4 of the GATT  1994 
and Article  3.2 of the Import Licensing Agreement in their panel requests prejudices Indonesia's  
ability to defend itself and hence undermines its due process rights. Finally, we will address 
Indonesia's contention that the co -complainant's first written submissions have also failed to 
comply with Article  6.2 requirements.  
3.2  Whether the claims pursuant to Article  III:4 of the GATT  1994 and Article  3.2 of the 
Import Licensing Agreement fall within our terms of reference  
3.9.  The first question that we will address is whether, as Indonesia argues, the claims pursuant 
to Article  III:4 of the GATT  1994 and Article  3.2 of the Import Licensing Agreement are not 
sufficiently identified in the co -complainants' panel requests, thus failing to meet the requirements 
of Article  6.2 of the DSU and falling outside our terms of reference. In particular, Indonesia argued 
that the claims under Article  III:4 of the GATT  1994 a nd Article  3.2 of the Import Licensing 
Agreement  were not "properly and sufficiently"101 identified because these provisions were only 
mentioned in footnotes to the panel requests and, to the extent the co -complainants refer to 
possible violations of these p rovisions by Indonesia, they do so in "conditional and ambiguous 
language".102 Indonesia further argued that, should we consider  that "putting the legal basis of a 
claim in the footnotes is acceptable "103, those claims are not sufficiently identified  because 
footnotes  5, 7, 8, 12 and 14 of the panel requests "only repeat tre aty provisions" and thus contain 
"no proper or sufficient explanation" of how the measures at issue are inconsistent with 
Article  III:4 of the GATT  1994 or Article  3.2 of the Import Licensin g Agreement.104  
3.10.   The co -complainants responded that Indonesia offers no analysis as to why the use of 
footnotes in discussing the claims is, by itself, inconsistent with Article  6.2 of the DSU and 
contended that Indonesia's suggestion that placement in a foo tnote renders the language "not 
important"105 goes against the general usage of footnotes in treaties and international agreements, 
including in the WTO.106 Regarding Indonesia's contention that the language in such footnotes is 
                                                
97Appellate Body Report, China — Raw Materials , para. 220 (referring to Appellate Body Report, EC – 
Fasteners (China) , para.  562).  
98Appellate Body Report, US —Carbon Steel , paras. 127 (referring to Appellate Body Report, Korea – 
Dairy , paras. 124 -127. 
99 Appellate Body Report, China — Raw Materials , para. 220.  
100 Appellate  Body Report, EC and certain member States – Large Civil Aircraft , para. 787 (referring to 
Appellate  Body Reports, EC – Bananas III , para. 143; and US – Carbon Steel , para. 127). See also Appellate 
Body Report, US – Countervailing and Anti -Dumping Measures (China) , para.  4.9. 
101 Indonesia's request for a preliminary ruling, paras. 10 and 14.  
102 Indonesia's request for a preliminary ruling, para. 10.  
103 Indonesia's request for a preliminary rul ing, para. 1 4. 
104 Indonesia's request for a preliminary ruling, paras.  14-20. 
105 Co-complainants' joint comments on Indonesia's preliminary ruling request, paras. 9 -10. 
106 Co-complainants' joint comments on Indonesia's preliminary ruling request, para. 10.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  "conditional and ambiguous"107, the co -complainants responded by arguing that Indonesia did not 
identify the specific language it found to be conditional and ambiguous or explained its reasons.108 
They submitted that raising complementary or alternative claims is "very common" in WTO disput e 
settlement109 and that a party intending to pursue complementary or alternative claims must 
simply refer to each of the relevant provisions in its panel request pursuant Article  6.2 of the 
DSU.110 The co -complainants further submitted that, to comply with Ar ticle 6.2 of the DSU, one 
need only provide the claim at issue and not detailed argumentation on the claim.111  
3.11.   We commence by examining whether the claims under Article  III:4 of the GATT  1994 and 
Article  3.2 of the Import Licensing Agreement were not suffic iently identified because they were 
set out in footnotes to the panel requests.112 In support of this contention, Indonesia relied on the 
Oxford Advanced Learner's Dictionary. Indonesia thus argued that  the meaning of "footnote" is 
"(1) an extra piece of inf ormation that is printed at the bottom of a page in a book or (2) (of an 
event or a person) that may be remembered but only as something/somebody that is not 
important ."113 For Indonesia, the identification of the legal basis of the claims in a panel request  is 
"very important " and not just an " extra piece of information "114 as "it determines the terms of 
reference and jurisdiction "115 of a panel. C onsequently, Indonesia requested  the Panel to rule that 
these claims are outside the Panel's terms of reference.116 
3.12.   The co-complainants responded that nothing in Article  6.2 of the DSU indicates that a 
complainant's claims are limited by the format in which those claims are presented . The co -
complainants draw our attention to the Appellate  Body's observation  that "footnot es are part of the 
text of a panel request, and may be relevant to the identification of the measure at issue or the 
presentation of the legal basis of the complaint".117  
3.13.   We proceed to examin e the wording of Article  6.2 of the DSU to ascertain whether there  is 
any requirement regarding how claims are to be presented in panel requests.  As we explained in 
Section  3.1 above , Article  6.2 of the DSU requires a complaining party to provide a brief summary 
of the legal basis of the complaint sufficient to present t he problem clearly.  We agree with  the co -
complainants and the third parties118 that, apart from the requirement that the panel request be 
made in writing , Article 6.2  does not include a requirement that such summary be presented in 
any particular form . In fact, as clarified by the Appellate  Body, complying with this provision as far 
as the presentation of the legal claims is concerned, is achieved by listing the article(s) of the 
covered agreement(s) claimed to have been violated119 with the necessary degree of  precision 
depending on the obligation(s) contained in the given provision(s), and plainly connecting the 
challenged measure(s) with the provision(s) of the covered agreements claimed to have been 
infringed.120 We thus find no support in the wording of Artic le 6.2 of the DSU for Indonesia's 
interpretation that setting  out the legal basis of a complaint in the footnotes of a panel request  
signals that the matter is considered unimportant or ancillary. Nor do we find any basis to 
                                                
107 Indonesia's request for a preliminary ruling, para. 10.  
108 Co-complainants' joint comments on Indonesia's preliminary ruling request, para 13.  
109 Co-complainants' joint comments on Indonesia's preliminary ruling request, para 14 (referring to 
Panel Report, Korea – Commercial Vessels , para. 7.2.28).  
110 Co-complainants' joint comments on Indonesia's preliminary ruling request, para 14.  Panel Report, 
Korea – Commercial Vessels , para. 7.2.29.  
111 Co-complainants' joint comments on Indonesia's preliminary ruling requ est, para. 19  (referring to 
the Appellate Body  Report,  China —HP–SSST , para. 5.14 ). 
112 Indonesia's request for a preliminary ruling, para. 10.  
113 Indonesia's request for a preliminary ruling, para.  11. (emphasis original)  
114 Indonesia's request for a prelimina ry ruling, para.  12. (underlining original)  
115 Indonesia's request for a preliminary ruling, para.  12. (underlining original)  
116 Indonesia's request for a preliminary ruling, para.  13. 
117 Co-complainants' joint comments on Indonesia's preliminary ruling reque st, para 11 (referring to 
Appellate Body Report, US – Countervailing and Anti -Dumping Measures (China) , para 4.39).  
118 Co-complainants' joint comments on Indonesia's preliminary ruling request, para. 11; Australia's 
comments on Indonesia's preliminary ruli ng request of 11 December 2015, paras. 6 -7; Brazil's comments on 
Indonesia's preliminary ruling request of 11 December 2015, para. 6.  
119 Appellate  Body Reports, Korea – Dairy , paras. 123 and 124 (referring to Appellate  Body Reports, 
Brazil – Desiccated Coco nut, p. 22, DSR 1997:I, p. 186; EC – Bananas III , paras. 145 and 147; and Indonesia 
– Patents (US) , paras.  89, 92, and 93); US – Carbon Steel , para. 130. See also Appellate Body Report, US – 
Countervailing and Anti -Dumping Measures (China) , para.  4.8. 
120Appellate Body Report, China — Raw Materials , para. 220 (referring to Appellate Body Report, US – 
Oil Country Tubular Goods Sunset Reviews , para.  162).  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  conclude that including claims in footnotes would result in such claims being "not properly and 
sufficiently described" as required by Article 6.2 of the DSU . We find no reason, nor does 
Indonesia offer one, to conclude that placing a claim in a footnote, as opposed to the body of the 
request, in and of itself, affects the clarity of the claim.  
3.14.   Our interpretation is in line with the Appellate Body's view that "footnotes are part of the 
text of a panel request, and may be relevant to the identification of the measure at issue or the 
prese ntation of the legal basis of the complaint".121 We also find support for our approach in the 
general usage of footnotes in the covered agreements. As mentioned by the co -complainants122 
and Brazil123, footnotes are important in establishing the nature and scope  of the rights and 
obligations in the covered agreements. This is  eviden t in footnote 1 to Article 4.2 of the Agreement 
on Agriculture, a provision relevant to this dispute, which serves to clarify the types of measures 
that fall under the scope of this pr ovision. A similar argument could be made regarding footnotes 
found in other covered agreements, such as , for instance, footnotes 1 to 5124 to the Ag reement on 
the Application of Sanitary and Phytosanitary Measures (SPS Agreement) and footnotes 1 to 6125 
to the Agreement on Subsidies and Countervailing Measures (SCM Agree ment).126  
3.15.   In sum, w e find that nothing in the wording of Article  6.2 of the DSU precludes a 
complainant from setting out claims in footnotes to its panel request  and t he fact that the co -
complai nants have set out claims pursuant to Article  III:4 of the GATT  1994 and Article  3.2 of the 
Import Licensing Agreement in footnotes 5, 7, 8, 12 and 14 of their panel requests does not 
render these requests inconsistent with the requirements of Article  6.2 of the DSU.  
3.16.   We now proceed to examine Indonesia's contentions pertaining to the language used in the 
relevant footnotes. In particular, we need to determine whether the co -complainants have failed to 
comply with Article  6.2 of the DSU because, as argued by  Indonesia, footnotes  5, 7, 8, 12 , and 14 
contain conditional and ambiguous language and, by only repeat ing treaty provisions , provide no 
proper or sufficient explanation of how the measures at issue are inconsistent with Article  III:4 of 
the GATT  1994 or Article  3.2 of the Import Licensing Agreement .127 We und erstand that Indonesia 
considered  that the panel requests do not meet the requirement in Article 6.2 of the DSU to 
"provide a brief summary of the legal basis of the complaint sufficient to present the problem 
clearly."128 As we explained in Section 3.1 above, the Appellate Body has clarified that a  brief 
summary of the legal basis of the complaint "aims to explain succinctly  how or why the measure at 
                                                
121 Appellate Body Report, US – Countervailing and Anti -Dumping Measures (China) , para 4.39 . 
122 Co-complainant s' joint comments on Indonesia's preliminary ruling request, para 10.  
123 Brazil's comments on Indonesia's preliminary ruling request of 11 December 2015, fn. 7.  
124 Footnote 1 of the SPS Agreement  makes reference to Article  XX(b), including also the chapeau o f 
that Article. Footnote 2 describes the circumstances when there is scientific justification for the purposes of 
paragraph 3 of Article 3. Footnote 3 describes the circumstances when a measure is not more trade -restrictive 
than required for purposes of pa ragraph 6 of Article 5. Footnote 4 defines the terms "animal", "plant", "wild 
flora", "pests" and "contaminants". Footnote 5 sets out the scope of the sanitary and phytosanitary regulations 
covered under paragraph 1 of Annex B.  
125 Footnote 1 of the SCM Agre ement  describes measures that are not to be deemed a subsidy in 
accordance with the provisions of Article XVI of GATT  1994 (Note to Article XVI) and the provisions of Annexes 
I through III of the SCM Agreement. Footnote 2 defines the terms "objective crite ria or conditions" as used in 
Article 2. Footnote 3 sets out that , in considering other factors to assess whether a subsidy is specific, 
information on the frequency with which applications for a subsidy are refused or approved and the reasons for 
such dec isions shall be considered. Footnote 4 sets out that a subsidy is contingent in fact when , without 
having been made legally contingent upon export performance, it is in fact tied to actual or anticipated 
exportation or export earnings. It also establishes that the mere fact that a subsidy is granted to enterprises 
which export shall not for that reason alone be considered to be an export subsidy within the meaning of 
Article 3 of the SCM Agreement . Footnote 5 set outs that measures referred to in Annex  I of the SCM 
Agreement as not constituting export subsidies shall not be prohibited under Article 3.1(a) or any other 
provision of the SCM Agreement. Footnote 6 provides that any time  periods mentioned in Article 4.4 may be 
extended by mutual agreement.  
126 Brazil's comments on Indonesia's preliminary ruling request of 11 December 2015, fn. 7.  
127 Indonesia's request for a preliminary ruling, paras. 14 -20. 
128 See also Indonesia's request for a preliminary ruling, para. 2, referring to Article 6.2.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  issue is considered by the complaining Member to be vio lating the WTO obligation in question".129 
We also recall that, w hile a panel request must set out the claims, there is no requirement in 
Article  6.2 that a complaining party include in its panel request arguments that seek 
"to demonstrate that the respondin g party's measure does indeed infringe upon the identified 
treaty provision".130  
3.17.   We observe that the co -complainants' panel requests, as set out in documents WT/DS477/9 
and WT/DS478/9, are identical but for the references to each of the co -complainants' nam es. The 
panel  requests are divided into three main sections refer ring to challenges relating to 
(i) horticultural products131, (ii)  animals and animal products132, and (iii)  the sufficiency of 
domestic production.133 Sections I and II are in turn sub -divided int o three subsections presenting 
the challenges to (i)  "Indonesia's Trade -Restrictive Import Licensing Regime"134; (ii)  the 
"Prohibitions and Restrictions … Made Effective Through Indonesia's Import Licensing Regime"135, 
and (iii)  the "Prohibitions and Restricti ons on Importation Relating to the Use, Sale, Offering for 
Sale, Distribution, Storage, or Transportation … Made Effective Through Indonesia's Import 
Licensing Regime".136 The panel requests include  Annexes  I and II  listing the legal instruments 
through whic h Indonesia maintains the measures set out  in the panel requests . 
3.18.   The co -complainants' claims under Article  3.2 of the Import Licensing Agreement are 
presented in footnotes 5 and 8, contained in Sections I(a) and II(a) of the panel requests, 
respectively. The co -complainants' claims under Article  III:4 of the GATT  1994 are presented in 
footnotes 7, 12 , and 14. Footnote 7 is contained in Section I(c), while footnotes 12 and 14 are 
found in Sections II(b) and II(c), respectively. We now turn to scrutinize the  wording of the 
relevant footnotes to determine whether they meet the requirements of Article 6.2 of the DSU.  
3.2.1   Footnotes 5 and 8  
3.19.   Footnote 5  provides as follows:  
To the extent that Indonesia's import licensing regime for horticultural products falls 
within  the scope of the disciplines of Article 3 of the Import Licensing Agreement, [the 
United States][New Zealand]  considers that the import licensing requirements and 
procedures, as described above and as set out in sections I(b) and I(c), would be 
inconsiste nt with Article  3.2 of the Import Licensing Agreement because they have 
trade -restrictive or trade distortive effects additional to those caused by imposition of 
the restriction, do not correspond in scope and duration to any measure they could be 
implemen ting, and are more administratively burdensome than absolutely necessary 
to implement any such measure. To the extent that Indonesia's import licensing 
regime falls within the scope of Article 2 of the Import Licensing Agreement, [the 
United States][New Ze aland] considers that Indonesia's import licensing requirements 
and procedures, as described above and as set out in sections I(b) and I(c), would be 
inconsistent with Article 2.2(a) of the Import Licensing Agreement because they are 
administered in such a  manner as to have restricting effects on imports.  
3.20.   As Indonesia's contention does not concern the claim pursuant to Article  2.2(a)  of the 
Import Licensing Agreement, we will focus our analysis on the wording pertaining to the claim 
under Article  3.2 (that is, from the beginning of the footnote until "any such measure.").  
                                                
129 Appellate Body R eport, US – Countervailing Measures (China) , para.  4.9 (referring to Appellate Body 
Report, EC – Selected Customs Matters , para.  130. (italics original; underlining added)). In EC – Selected 
Customs Matters , the Appellate Body also stated that "Article  6.2 of the DSU requires that the claims – not the 
arguments  – be set out in a panel request in a way that is sufficient to present the problem clearly". (Ibid., 
para. 153 (referring to Appellate Body Reports, EC – Bananas III , para.  143; India – Patents (US) , para. 88; 
Korea – Dairy , para.  139; and Dominican Republic – Import and Sale of Cigarettes , para.  121))  
130 Appellate Body Report, US – Countervailing Measures (China) , para.  4.8 (referring to Appellate Body 
Report, Korea – Dairy , para.  139 (referring to A ppellate Body Reports, EC – Bananas  III, para.  141; India – 
Patents (US) , para.  88; and EC – Hormones , para.  156)).  
131 Section I.  
132 Section II.  
133 Section III.  
134 Sections I(a) and II(a).  
135 Sections I(b) and II(b).  
136 Sections I(c) and II(c).  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  3.21.   Footnote  5 begins with the phrase "[t]o the extent that Indonesia's import licensing regime 
for horticultural products falls within the scope of the disciplines of Article 3 of the Import Licensing 
Agreement" . To us, the words "[t]o the extent that"  signal that the co -complainants condition the 
claim on Indonesia's import licensing regime for horticultural products fall ing under the scope of 
Article 3 of the Import Licensing Agreement. In this respect, we note Indonesia's argument on the 
use of conditional language137 and we agree that the claim presented in footnote  5 relating to 
Article 3.2 of the Import Licensing Agreement is expressed in conditional language. We 
nonetheless observe that nothing in Article  6.2 of the DSU proscribes the use of conditional 
language in the formulation of a claim. In fact, as the co -complainants138, Australia139 and Brazil140 
argue, raising complementary or alternative claims is a common feature in WTO dispute  
settlem ent. We thus find that the conditional nature of the claims does not render them outside 
our jurisdiction . Continuing our analysis, we observe that this part of the footnote does not provide 
the "how or why the measure at issue is considered by the complai ning Member to be violating the 
WTO obligation in question" .141  
3.22.   The footnote then refers to the challenged measures themselves (" the import licensing 
requirements and procedures, as described above and as set out in sections I(b) and I(c) "). We do 
not find here, either, the "how or why the measure at issue is considered by the complaining 
Member to be violating the WTO obligation in question ". Turning to t he last part of the relevant 
wording  ("because they have trade -restrictive or trade distortive effects a dditional to those caused 
by imposition of the restriction, do not correspond in scope and duration to any measure they 
could be implementing, and are more administratively burdensome than absolutely necessary to 
implement any such measure "), the co -compla inants provide  their reasons for challenging the 
measures in question, stating that they would be inconsistent with Article 3.2 because  they (i) 
"have trade -restrictive or trade distortive effects additional to those caused by imposition of the 
restriction ", (ii) "do not correspond in scope and duration to any measure they could be 
implementing", and (iii) "are more administratively burdensome than absolutely necessary to 
implement any such measure". In using the word "because", the co -complainants signal t hat what 
follows are their reasons "why the measure at issue is considered by the complaining Member[s]  
to be violating the WTO obligation in question".   
3.23.   As pointed out by the respondent, these reasons cited by the co -complainants closely follow 
the langua ge of Article  3.2 of the Import Licensing Agreement.142 Indonesia takes issue with the 
fact that the co -complainants "only repeat treaty provisions "143 and, as such, contend s that the 
respective panel requests do not meet the requirements of Article 6.2 of the  DSU. We do not 
agree, for we do not consider that closely following the wording of the provision allegedly violated 
is necessarily problematic. As we stated above, A rticle 6.2 requires a complainant to  provide a 
brief summary of the legal basis of the com plaint sufficient to present the problem clearly. It does 
not specify any particular formula or language that must be followed to meet this criterion. Thus it 
may be possible, depending upon the wording of the provision in question, to satisfy this 
require ment simply by following closely the language of the provision in question. We are of the 
view that , given the specific content of Article 3.2 of the Import Licensing Agreement , referring to 
its different elements and stating that a measure does not meet t hem can suffice to provide a brief 
summary of the legal basis of a complaint.  Upon reading footnote 5, it is clear that the co -
complainants base their claims of violation on the fact that the measures in question have trade -
restrictive or trade distortive effects additional to those caused by imposition of the restriction, do 
not correspond in scope and duration to any measure the y could be implementing , and are more 
                                                
137 Indonesia's req uest for a preliminary ruling, para.  10. 
138 Co-complainants' joint comments on Indonesia's preliminary ruling request, para. 14 (referring to 
Panel Report, Korea – Commercial Vessels , paras. 7.2.28 -7.2.29).  
139 Australia's comments on Indonesia's preliminary  ruling request of 11 December 2015, para. 10 
(referring to Panel Report, Korea — Commercial Vessels , para. 7.2).  
140 Brazil's comments on Indonesia's preliminary ruling request of 11 December 2015, para. 14.  
141 Indonesia's request for a preliminary ruling, p ara. 10. 
142 We also observe that footnote  5 does not contain any precise arguments as to why the measures at 
issue are inconsistent with the alleged provision. As we discussed above, there is no requirement in Article  6.2 
that a complaining party include in  its panel request arguments that seek "to  demonstrate that the responding 
party's measure does indeed infringe upon the identified treaty provision". Appellate Body Report, US – 
Countervailing Measures (China) , para.  4.8 (referring to Appellate Body Repor t, Korea – Dairy , para.  139 
(referring to Appellate Body Reports, EC – Bananas  III, para.  141; India – Patents (US) , para.  88; and EC – 
Hormones , para.  156)).  
 WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  administratively burdensome than absolutely necessary to implement any such measure . As 
explained above, there is no requirement in Article  6.2 for a complaining party to go further and 
include in its panel request argumen ts that seek "to  demonstrate that the responding party's 
measure does indeed infringe upon the identified treaty provision".144 Before concluding on this 
argument, we wish to underscore our view that other WTO provisions may not provide sufficient 
specificity or detail to lead to the same result as we have come to in this case. It may well be the 
case that reciting a WTO provisi on will not suffice to " explain succinctly  how or why the measure at 
issue is considered by the complaining Member to be violating the WTO obligation in question".145 
This inquiry must be conducted on a case by case basis.  
3.24.   We finalize our analysis of footn ote 5 by assessing Indonesia's argument that the language 
used to set out the claim under Article 3.2 of the Import Licensing Agreement is ambiguous. We 
begin by noting that, as argued by co -complainants146, Indonesia did not identify  the specific 
language  it found to be ambiguous. Nonetheless, bearing in mind the due process objective of 
panel requests of notifying the respondent and third parties of the nature of the complainant's 
case147, we proceed to examine whether Indonesia's contention has merit . For language to be 
ambiguous, it must lead to uncertainty or confusion about its meaning. In the context of an 
analysis under Article 6.2 of the DSU, the resulting uncertainties or confusion must have an effect 
on the compliance with requirements set forth i n this provision. In the present case, we do not 
observe any ambiguities in the text of footnote 5 that would prevent the co -complainants from 
complying with Article 6.2 of the DSU. On the contrary, and as we have noted in the preceding 
paragraphs, footnot e 5 explains succinctly  how or why the measure at issue is considered by the 
co-complainants to be violating Article 3.2 of the Import Licensing Agreement.  To us, the language 
used in footnote 5  to set out the claim under Article 3.2 is not ambiguo us. 
3.25.   We thus conclude that, with respect to the claim under Article 3.2 of the Import Licensing 
Agreement set out in footnote  5 of the panel requests, the co -complainants provided a brief 
summary of the legal basis of their complaint that presents the problem clear ly as required by 
Article 6.2 of the DSU.  
3.26.   We now turn to Footnote 8, which reads:  
To the extent that Indonesia's import licensing regime for animals and animal 
products falls within the scope of the disciplines of Article 3 of the Import Licensing 
Agreemen t, [the United States][New Zealand] considers that the import licensing 
requirements and procedures, as described above and as set out in sections II(b) and 
II(c), would be inconsistent with Article  3.2 of the Import Licensing Agreement 
because they have t rade-restrictive or trade -distortive effects additional to those 
caused by imposition of the restriction, do not correspond in scope and duration to 
any measure they could be implementing, and are more administratively burdensome 
than absolutely necessary to implement any such measure. To the extent that 
Indonesia's import licensing regime falls within the scope of Article 2 of the Import 
Licensing Agreement, the [the United States][New Zealand]  considers that Indonesia's 
import licensing requirements and p rocedures, as described above and as set out in 
sections II(b) and II(c), would be inconsistent with Article 2.2(a) of the Import 
Licensing Agreement because they are administered in such a manner as to have 
restricting effects on imports.  
3.27.   We observe that footnote 8 closely resembles footnote  5, the only difference being that the 
former addresses the import licensing regime for animals and animal products while the latter 
addresses that for horticultural products . Accordingly, our conclusion above that  the co-
                                                
144 Appellate Body Report, US – Countervailing Measures (China) , para.  4.8 (referring to Appella te Body 
Report, Korea – Dairy , para.  139 (referring to Appellate Body Reports, EC – Bananas  III, para.  141; India – 
Patents (US) , para.  88; and EC – Hormones , para.  156)).  
145 Appellate Body Report, US – Countervailing Measures (China) , para.  4.9 (referrin g to Appellate Body 
Report, EC – Selected Customs Matters , para.  130. (italics original; underlining added)). In EC – Selected 
Customs Matters , the Appellate Body also stated that "Article  6.2 of the DSU requires that the claims – not the 
arguments  – be se t out in a panel request in a way that is sufficient to present the problem clearly". (Ibid., 
para. 153 (referring to Appellate Body Reports, EC – Bananas III , para.  143; India – Patents (US) , para.  88; 
Korea – Dairy , para.  139; and Dominican Republic – Import and Sale of Cigarettes , para.  121))  
146 Co-complainants' joint comments on Indonesia's preliminary ruling request, para 13.  
147 Appellate Body report, US – Countervailing Measures (China) , para. 4.6.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  complainants provided a brief summary of the legal basis of their complaint that presents the 
problem clearly as required by Article 6.2 of the DSU also applies  to the claims set out in 
footnote  8.  
3.2.2   Footnotes 7, 12 and 14  
3.28.   The first footnote setting out  the claims pursuant to Article  III:4 of the GATT  1994 is 
footnote 7, which provides as follows:  
To the extent that these measures are measures affecting the internal sale, offering 
for sale, purchase, transportation, distribution or use of products, [the United 
States][New Zealand] consider s that they would be inconsistent with Article  III:4 of 
the GATT  1994 because Indonesia does not impose similar limitations on the internal 
sale, offering for sale, purchase, transportation, storage, distribution and use  of like 
domestic products and, therefore, Indonesia's laws, regulations and requirements 
accord less favorable treatment to imported products than like domestic products.  
3.29.   We observe that, similarly to footnotes  5 and 8, footnote  7 starts with  a condition that 
qualifies the claim  by using the introductory words "[t]o the extent that ". We refer to paragraph 
3.21 above where we concluded that the conditional nature of the claims does not render them 
outside our jurisdiction . As we also found with footnotes 5 and 8, this first section of the footnote 
does not provide the explanation of the legal basis for the claim required by Article 6.2 of the DSU. 
Following our approach above, we look to the latter part of the footnote, following the word 
"because", which st ates as follows: "Indonesia does not impose similar limitations on the internal 
sale, offering for sale, purchase, transportation, storage, distribution and use of like domestic 
products, and therefore Indonesia's [measures] accord less favorable treatment  to imported 
products than like domestic products". We note that t he co -complainants have closely followed the 
language of Article  III:4 of the GATT  1994 to explain how and why the challenged measures are 
inconsistent with this provision.148 Nevertheless, as we have stated above, doing so does not mean 
necessarily that such formulation would result in a failure to provide  a brief summary of the legal 
basis of the complaint sufficient to present the problem clearly . An examination of the explanation 
in quest ion would be required. In our view, using the word "because" in footnote 7 signals that 
what follows are the co -complainants' reasons why the measures at issue are considered to be in 
violation of Article  III:4 of the GATT  1994. Moreover, the language empl oyed by the co -
complainants in footnote  7 following the word "because" explains succinctly why the measures 
referred to in Section I(C) are considered by New Zealand and the United States to be in violation 
of this provision.  It states what Indonesia alleg edly fails to do (impose similar limitations regarding 
domestic products) and identifies the perceived  result of this alleged failure (accordance of less 
favourable treatment to imported products than like domestic products). It contends that this 
would re sult in a violation of Article III:4 of the GATT 1994. Reading this explanation, we are of 
the view that the respondent can understand what the co -complainants are complaining about  and 
which violation is alleged to have occurred. As to their arguments in support, these do not need to 
be set forth in a request for the establishment of a panel.  
3.30.   Similar to our conclusion in paragraph 3.24 above , we do not observe in the text of 
footnote  7 any ambiguities, nor has Indonesia pointed to  any, that would conflict  with the 
requirements of Article 6.2 of the DSU.  On the contrary, and as we have noted in the preceding 
paragraphs, footnote  7 explains succinctly  how or why the measure at issue is considered by the 
co-complainants to be violating Article III:4 of the GA TT 1994. To us,  the language used in 
footnote  7 to set out the claim under Article III:4 of the GATT  1994 is not ambiguous.  
3.31.   We thus conclude that, with respect to the claim under Article III:4 of the GATT  1994 set 
out in footnote  7 of the panel requests, the co -complainants provided a brief summary of the legal 
basis of their complaint that presents the problem clearly  as required by Article 6.2 of the DSU.  
3.32.   Turning now to footnote 12, it provides as follows:  
To the extent that the absorption requirement is a measure affecting the internal sale, 
offering for sale, purchase, transportation, distribution or use of products,  [the United 
                                                
148 Concerning the absence in Article 6.2 of the DS U of a requirement to include arguments in support of 
a claim, see paragraph 3.5 and 3.23 above.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  States][New Zealand] consider s that it would be inconsistent with Article  III:4 of the 
GATT  1994 because it accords less favora ble treatment to imported products than to 
like domestic products.  
3.33.   We observe that, although not identical, the language and structure of footnote 12 is similar 
to that of footnote  7. It thus  starts with  a condition that qualifies the claim  by using the 
introductory words "[t]o the extent that ". We refer to paragraph 3.21 above where we concluded 
that the conditional nature of the claims does not render them outside our jurisdiction . Once again , 
the co -complainants closely followed the language of th e provision in question to explain the 
reason why the challenged measure is inconsistent with it. For reasons similar to those set forth 
above, we consider that the co -complainants explained succinctly why the measure in question is 
considered by New Zealand and the United  States to be in violation of Article  III:4 of the 
GATT  1994.149 As with previous footnotes, we do not observe in the text of footnote 12 any 
ambiguities, nor has Indonesia pointed to any, that would conflict with the requirements of Article 
6.2 of the DSU. On the contrary, and as we have noted in the preceding paragraphs, footnote  12 
explains succinctly how or why the measure at issue is considered by the co -complainants to be 
violating Article III:4 of the GATT  1994. To us, the language used in footnote 12  to set out the 
claim under Article III:4 of the GATT  1994 is not ambiguous.  
3.34.   We thus conclude that, with respect to the claim under Article  III:4 of the GATT  1994 set 
out in footnote  12 of the panel requests, the co -complainants provided a brief  summary of the 
legal basis of their complaint that presents the problem clearly  as required by Article 6.2 of the 
DSU. 
3.35.   Finally, we examine footnote 14 , which provides  as follows:  
To the extent that these measures are measures affecting the internal sale, offering 
for sale, purchase, transportation, distribution or use of products,  [the United 
States][New Zealand] consider s that they would be inconsistent with Article  III:4 of 
the GATT  1994 because Indonesia does not impose similar limitations on the intern al 
sale, offering for sale, purchase, transportation, storage, distribution and use of like 
domestic products and, therefore, Indonesia's laws, regulations and requirements 
accord less favorable treatment to imported products than to like domestic products . 
3.36.   We observe that the wording of footnote 14 is identical to that of footnote  7. The only 
difference is the paragraph of the panel requests where this footnote is placed , with the result that 
footnote  14 refers to measures different from those to which footnote 7 applies . This difference 
does not affect our reasoning regarding compliance with Article 6.2 of the DSU and hence we 
reach the same conclusion with respect to footnote  14. We thus conclude that, with respect to the 
claim under Article  III:4 of the GATT  1994 set out in footnote  14 of the panel requests, the co -
complainants provided a brief summary of the legal basis of their complaint that presents the 
problem clearly  as required by Article 6.2 of the DSU.  
3.37.   Before concluding on this aspect of Indonesi a's request for a preliminary ruling, the Panel 
wishes to address Indonesia's argument that the "situation" in the present dispute is "exactly the 
situation" present in China – Raw Materials  where the complainants' panel requests were found 
wanting because , according to Indonesia, "the complainants merely 'challeng[ed] some (groups of) 
measures as inconsistent with some (groups) of the listed WTO obligations…".150 The co -
complainants respond ed that the facts in China – Raw Materials  can be distinguished fro m the 
present instance and that, on the contrary, the panel requests in these proceedings describe the 
challenged measures in detail, including the problematic aspects of their operation, identify the 
legal instruments through which each measure was impose d, set out the provisions with which the 
measures are inconsistent, and su mmarize the relevant obligation.151 We recall that in China – 
Raw Materials , the panel request listed 37 legal instruments followed by a "wide array of dissimilar 
obligations ."152 The Appellate Body found that, given the number of possible combinations that 
                                                
149 Concerning the absence in Article 6.2 of the DSU of a requirement to include arguments in support of 
a claim, see paragraph 3.5 and 3.23 above . 
150 Indones ia's request for a preliminary ruling, paras. 20 -21. 
151 Co-complainants ' joint comments on Indonesia's preliminary ruling request, para 26.  
152 Appellate Body Report, China – Raw Materials , para. 228 (referring to Appellate Body Report,  Korea 
– Dairy , para. 124).  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  existed between the legal instruments listed and the multiple obligations challenged , it was not 
possible to discern the problems alleged to have been caused. The situation in that  case is not 
comparable to that here . Contrary to the situation in China — Raw Materials , the panel requests do 
not "raise[] multiple problems stemming from several different obligations arising under various 
provisions ".153 Rather, footnotes 5, 7, 8, 12 a nd 14 of the  panel requests before us allege 
violations only of Articles 2.2(a) (not relevant in this ruling) and 3.2 of the Import Licensing 
Agreement, as well as Article III:4 of the GATT 1994. The measures alleged to be in violation of 
these provisions were discussed in connection with each provision separately. Thus the difficulties 
in discerning the problem found in China — Raw Materials  do not arise in this case.  
3.38.   In the light of the foregoing, we reject  Indonesia's contention that the manner in which  the 
co-complainants formulated their claims pursuant to Article  3.2 of the Import Licensing Agreement 
and Article  III:4 of the GATT  1994 in their panel requests did not sufficiently identify their claims 
and thereby failed to comply with the requirements of Article 6.2 of the DSU.  
3.2.3   Whether the fact that the United States did not provide argumentation on 
Article  III:4 of the GATT  1994 in its first written submission is relevant under Article  6.2 
of the DSU  
3.39.   We proceed to examine Indonesia's contention that the "confusion"154 regarding the claims 
under Article  III:4 of the GATT  1994 and Article  3.2 of the Import Licensing Agreement "is 
compounded by the fact that the Complainants' panel requests are identical, but the ir (first written 
submissions ) are different  concerning  these treaty provisions ." Indonesia explained  that while the 
United  States' first written submission "only appear ed to advance " a claim under Article  3.2 of the 
Import Licensing Agreement, New Zealand's first written submission "attempted to in voke" both 
Article  III:4 of the GATT and Article  3.2 of the Import Licensing Agreement.155 
3.40.   The co -complainants respond ed that this argument lacks merit because the consistency of a 
panel request with the requirements of Article  6.2 of the DSU is based on t he text of that "request 
… made in writing ".156 In their view, a complainant is not required to pursue all the claims 
referenced in its panel request, and a decision not to pursue a claim "has no bearing on the 
sufficiency of the text of the panel request under DSU Article  6.2."157 
3.41.   We recall that, as explained by the Appellate Body, "a complainant has the prerogative to 
narrow or abandon its claims, and thereby reduce the scope of its disagreement and dispute, at 
any stage of a proceeding".158 Furthermore, "whether a complainant narrows or abandons its 
claims is an issue different from an assessment of the consistency of a panel request with the 
requirements under Article  6.2 of the DSU, which must be assessed in the light of the language 
used in the panel r equest as it stood at the time it was filed".159 
3.42.   We thus conclude that t he fact that the United  States has not pursued  a claim included in its 
panel request, namely  Article III:4 of the GATT 1994, within its first written submission is not 
relevant for pur poses of assessing whether such  a claim was adequately identified in the panel 
request at issue pursuant to Article 6.2 of the DSU.  We also find that the fact that New Zealand 
chose a different strategy from its co -complainant and decided to pursue in its first written 
submission claims under both Article III:4 of the GATT 1994 and Article 3.2 of the Import 
Licensing Agreement does not undermine the adequacy of its panel request, for it simply followed 
through with what it set forth in its panel request. Th erefore, we dismiss Indonesia's request that 
                                                
153 Appellate Body Report, China – Raw Materials , para . 230.  
154 Indonesia's request for a preliminary ruling, para. 22.  
155 Indonesia's request for a preliminary ruling, para. 22.  
156 Co-complainants' joint comments on Indonesia's preliminary rul ing request, para. 15 (referring to 
DSU Article  6.2). 
157 Co-complainants' joint comments on Indonesia's preliminary ruling request, para. 15.  
158 Appellate Body Report, US – Countervailing Measures (China) , para.  4.19 (referring to Appellate 
Body Report, Japan – Apples , para.  136).  
159 Appellate Body Report, US – Countervailing Measures (China) , para.  4.19 (quoting US – 
Countervailing and Anti -Dumping Measures (China) that "[s]ubsequently dropping claims does not add to, or 
detract from, an independent ass essment of whether the remaining claims are identified in a manner that is 
sufficient to present the problem clearly, in accordance with Article  6.2 of the DSU." (Appellate Body Report, 
US – Countervailing and Anti -Dumping Measures (China), para. 4.49).  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  we find that the co -complainants' different approaches in their respective first written submissions 
resulted in the claims being insufficiently identified in their panel requests.  
3.3  Whether Indonesia's due proces s rights have been impaired  
3.43.   We turn now to address Indonesia's contention that it has suffered prejudice because the 
"apparent claims"160 under Article  III:4 of the GATT  1994 and Article  3.2 of the Import Licensing 
Agreement were not sufficiently identifie d in the p anel requests. Indonesia submitted  that the fact 
that these claims were only mentioned in footnotes and that the footnotes only repeated the legal 
provisions without explaining why the measures at issue violate these two provisions are "acts of 
WTO inconsistency"161 that clearly prejudice Indonesia's ability to defend itself in this dispute.162  
3.44.   The co -complainants respond ed that the evaluation of the sufficiency of a panel request is 
"based on the face of the panel request itself " and therefore "it would not also be necessary to 
demonstrate that the responding party was prejudiced by the inconsistency. "163 They also 
reasoned that if a panel request meets the requirements of Article 6.2 of the DSU, "a responding 
party cannot, objectively, be prejud iced by that request".164 The co -complainants submit ted 
further that, in any event,  Indonesia has not been prejudiced because  the co -complainants made 
Indonesia aware of the claims under Article  3.2 of Import Licensing Agreement and Article  III:4 of 
the GA TT 1994 both in the panel requests  which are in accordance with Article 6.2, and in  the co -
complainants' requests for consultations.165 In the co -complainants' view, Indonesia was therefore 
"on notice from the commencement of this dispute"166 of these clai ms. The co -complainants also 
argued that Indonesia  provided no details in support of its allegation of prejudice and consequently 
its "unsubstantiated claim of prejudice" is analogous to that considered in Korea – Dairy , where 
the Appellate Body rejected K orea's claim that it had suffered prejudice on the basis that it had 
"assert[ed] that it had sustained prejudice, but offered no supporting particulars in its appellant's 
submission nor at the oral hearing".167 
3.45.   We recall that a panel  request serves the due  process objective of notifying the respondent 
and third parties of the nature of the complainant's case .168 Thus a panel request that is in 
conformity with Article 6.2 of the DSU will identify the specific measures at issue and provide a 
brief summary of the legal basis of the complaint sufficient to present the problem clearly, with the 
result that the respondent will be made aware of the nature of the complainants' case. Indonesia's 
contention that it has suffered prejudice is in extricably linked to and dependent upon its claim that  
the co -complainants failed to sufficiently identify the claims in the panel requests, contrary to  
Article  6.2 of the DSU.  
3.46.   Having reject ed above Indonesia's contention that the manner in which the co -complainants 
formulated th eir claims pursuant to Article  3.2 of the Import Licensing Agreement and Article  III:4 
of the GATT  1994 in their panel requests did not sufficiently identify their claims and thereby failed 
to comply with the requirements of Article 6.2 of the DSU, we also  reject Indonesia's contention 
that it suffered prejudice  as a result of the formulation of those claims. In our view, Indonesia  
would have been on notice that the co -complainants were pursuing claims under Article 3.2 of the 
Import Licensing Agreement and  Article III:4 of the GATT 1994  and hence Indonesia's due process 
rights  were not affected by virtue of the content of the panel requests .  
                                                
160 Indonesia's request for a preliminary ruling, paras. 13, 14, 24, 27 and 28.  
161 Indonesia's request for a preliminary ruling, para. 27.  
162 Indonesia's request for a preliminary ruling, para. 27.  
163 Co-complainants' joint comments on Indonesia's prelimi nary ruling request, para. 2 9 (referring to 
Appellate Body Report, China – Raw Materials , para. 233).  
164 Co-complainants' joint comments on Indonesia's preliminary ruling request, para. 2 9 (referring to 
Appellate Body Report, China – Raw Materials , para. 233).  
165 Co-complainants' joint comments on Indonesia's preliminary ruling request, paras. 29 -30. 
166 Co -complainants' joint comments on Indonesia's preliminary ruling request, para . 30. 
167 Co-complainants' joint comments on Indonesia's preliminary ruli ng request, para. 31 (referring to  
Appellate Body Report, Korea – Dairy , para. 131).  
168 Appellate Body report, US – Countervailing Measures (China) , para. 4.6.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  3.4  Whether the co -complainants ' first written submissions have failed to comply with 
Article  6.2 requirements  
3.47.   At the ou tset of its request, Indonesia requests the Panel to find, by means of a preliminary 
ruling, that the first written submissions of the United States and New Zealand are inconsistent 
with the requirements of the DSU.169 In its closing section, Indonesia sub mits that it is seeking the 
following ruling from the Panel:  
(a) The Complainants' apparent claims under Article  III:4 of the GATT and 
Article  3.2 of the [Import Licensing Agreement] in their [first written 
submissions] are outside the Panel's terms of re ference; and  
(b) The Complainants' failure in their panel requests as well as their [first written 
submissions] to meet the requirements of Article  6.2 of the DSU has clearly 
prejudiced, and continues to prejudice, the preparation of Indonesia['s] 
defen ce, violating Indonesia's right to due process in these proceedings.  
3.48.   We understand th e claim set forth in paragraph (b)  to mean that Indonesia is requesting us 
to evaluate the consistency with Article  6.2 of the DSU not only of the co -complainants' panel 
requests, but also of their first written submissions. Indonesia's request is inapposite. Article  6.2170 
regulates the requirements for panel requests but does not speak to the requirements of first 
written submissions. Hence, the Panel declines to make such a n evaluation.   
4  CONCLUSION  
4.1.  With respect to Indonesia's contention that the claims pursuant to Article  III:4 of the 
GATT  1994 and Article  3.2 of the Import Licensing Agreement are not sufficiently identified in the 
co-complainants' panel requests, thus faili ng to meet the requirements of Article  6.2 of the DSU , 
we find that:  
a. Nothing in the wording of Article  6.2 of the DSU precludes a complainant from setting 
out claims in the footnotes to its panel request. Footnotes form part of the text of a 
panel request and may be relevant to the presentation of the legal basis of the 
complaint. The fact that the co -complainants have set out claims pursuant to Article  3.2 
of the Import Licensing Agreement and Article  III:4 of the GATT  1994 within footnotes 5, 
7, 8, 12 and  14 of their panel requests does not render these requests inconsistent with 
the requirements of Article  6.2 of the DSU;  
b. Indonesia has failed to demonstrate that the co -complainants have not sufficiently 
identified their claims pursuant to Article  3.2 of t he Import Licensing Agreement and 
Article  III:4 of the GATT  1994 because the language employed in footnotes 5, 7, 8, 12 
and 14 of their panel requests is "conditional  and ambiguous ";  
c. Indonesia has failed to demonstrate that the co -complainants have not su fficiently 
identified their claims pursuant to Article  3.2 of the Import Licensing Agreement and 
Article  III:4 of the GATT  1994, by referring to the wording of these provisions when 
formulating the relevant claims in footnotes 5, 7, 8, 12 and 14 of the pan el requests and 
by not providing a proper or sufficient explanation of how the measures at issue are 
inconsistent with Article  III:4 of the GATT  1994 or Article  3.2 of the Import Licensing 
Agreement .  
4.2.  We therefore reject  Indonesia's contention that the man ner in which the co -complainants 
formulated their claims pursuant to Article  3.2 of the Import Licensing Agreement and Article  III:4 
of the GATT  1994 in their panel requests did not sufficiently identify their claims and thereby failed 
to comply with the r equirements of Article 6.2 of the DSU.   
4.3.  We further find that t he fact that a co -complainant, in this case the United  States, has not 
argued a claim included in its panel request, in this case Article  III:4 of the GATT  1994, within its 
                                                
169 Indonesia's request for a preliminary ruling, para. 1.  
170 See paragraph  3.1 above.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  first written submiss ion is not relevant for the purpose of assessing whether such a claim has been 
adequately identified in a panel request pursuant to Article  6.2 of the DSU .  
4.4.  In the light of our finding  in paragraph  4.2 above , we reject Indonesia's contention that it 
suffer ed prejudice  as a result of the formulation of those claims. In our view, Indonesia  would 
have been on notice that the co -complainants were pursuing claims under Article 3.2 of the Import 
Licensing Agreement and Article III:4 of the GATT 1994  and hence Ind onesia's due process rights  
were not affected by virtue of the content of the panel requests.  
4.5.  Concerning Indonesia's request  that we  evaluate the consistency with Article  6.2 of the DSU 
of their first written submissions , the Panel declines to make such an  evaluation because 
Article  6.2 regulates the requirements that panel requests must satisfy but does not speak to the 
requirements of first written submissions.  
4.6.  Finally, we note that this preliminary ruling will become an integral part of our Final Report , 
subject to any changes that may be necessary in the light of comments received from the parties 
during the interim review.  
 
_______________  
 
 
 
 
 WT/DS477/R/Add.1 • WT/DS478/ R/Add.1  
 
- B-1 - 
 
  ANNEX  B-1 
WORKING PROCEDURES O F THE PANEL  
Adopted on 28 October 2015  
1.1.  In its proceedings, the Panel shall fol low the relevant provisions of the Understanding on 
Rules and Procedures Governing the Settlement of Disputes (DSU). In addition, the following 
Working Procedures shall apply.  
General  
 
1.2.  The deliberations of the Panel and the documents submitted to it shall be kept confidential. 
Nothing in the DSU or in these Working Procedures shall preclude a party to the dispute (hereafter 
"party") from disclosing statements of its own positions to the public. Members shall treat as 
confidential information submitted to th e Panel by another Member which the submitting Member 
has designated as confidential. Where a party submits a confidential version of its written 
submissions to the Panel, it shall also, upon request of a Member, provide a non -confidential 
summary of the i nformation contained in its submissions that could be disclosed to the public.  
1.3.  Upon indication from any party, at the latest on the first substantive meeting, that it shall 
provide information that requires protection additional to that provided for under  these Working 
Procedures, the Panel shall, after consultation with the parties, decide whether to adopt 
appropriate additional procedures. Exceptions to this procedure shall be granted upon a showing of 
good cause.  
1.4.  The Panel shall meet in closed session. The parties, and Members having notified their 
interest in the dispute to the Dispute Settlement Body in accordance with Article 10 of the DSU 
(hereafter "third parties"), shall be present at the meetings only when invited by the Panel to 
appear before it.   
1.5.  Each party and third party has the right to determine the composition of its own delegation 
when meeting with the Panel. Each party and third party shall have the responsibility for all 
members of its own delegation and shall ensure that each member of s uch delegation acts in 
accordance with the DSU and these Working Procedures, particularly with regard to the 
confidentiality of the proceedings.  
Submissions  
 
1.6.  Before the first substantive meeting of the Panel with the parties, each party shall submit a 
written submission in which its presents the facts of the case and its arguments, in accordance 
with the timetable adopted by the Panel. Each party shall also submit to the Panel, prior to the 
second substantive meeting of the Panel, a written rebuttal, in ac cordance with the timetable 
adopted by the Panel.  
1.7.  A party shall submit any request for a preliminary ruling at the earliest possible opportunity 
and in any event no later than in its first written submission to the Panel. If the complainants 
request such a ruling, Indonesia shall submit its response to the request in its first written 
submission. If Indonesia requests such a ruling, the complainants shall submit its response to the 
request prior to the first substantive meeting of the Panel, at a time to b e determined by the Panel 
in light of the request. Exceptions to this procedure shall be granted upon a showing of good 
cause.  
1.8.  Each party shall submit all factual evidence to the Panel no later than during the first 
substantive meeting, except with respect  to evidence necessary for purposes of rebuttal, answers 
to questions or comments on answers provided by the other party. Exceptions to this procedure 
shall be granted upon a showing of good cause. Where such exception has been granted, the Panel WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- B-2 - 
 
  shall acc ord the other parties a period of time for comment, as appropriate, on any new factual 
evidence submitted after the first substantive meeting.  
1.9.  Where the original language of exhibits is not a WTO working language, the submitting party 
or third party shall  submit a translation into the WTO working language of the submission at the 
same time. The Panel may grant reasonable extensions of time for the translation of such exhibits 
upon a showing of good cause. Any objection as to the accuracy of a translation s hould be raised 
promptly in writing, no later than the next filing or meeting (whichever occurs earlier) following 
the submission which contains the translation in question. In exceptional circumstances, the Panel 
may grant an extension to this deadline up on good cause shown.  Any objection shall be 
accompanied by a detailed explanation of the grounds of objection and an alternative translation.  
1.10.   In order to facilitate the work of the Panel, each party and third party is invited to make its 
submissions in ac cordance with the WTO Editorial Guide for Panel Submissions attached as 
Annex  1, to the extent that it is practical to do so.  
1.11.   To facilitate the maintenance of the record of the dispute and maximize the clarity of 
submissions, each party and third party sh all sequentially number its exhibits throughout the 
course of the dispute. For example, exhibits submitted by the parties could be numbered, 
respectively, NZL -1, NZL -2, etc., USA -1, USA -2, etc. or IDN -1, IDN -2 If the last exhibit in 
connection with the fir st submission was numbered, for example, NZL -5, the first exhibit of the 
next submission thus would be numbered NZL -6. Any joint exhibits submitted by the complainants 
shall be numbered JE -1, JE-2, etc.  
Questions  
 
1.12.   The Panel may at any time pose questions t o the parties and third parties, orally or in 
writing, including prior to each substantive meeting.   
Substantive meetings  
 
1.13.   Each party shall provide to the Panel the list of members of its delegation in advance of 
each meeting with the Panel and no later t han 5.00  p.m. the previous working day.  
1.14.   The first substantive meeting of the Panel with the parties shall be conducted as follows:  
a. The Panel shall invite New Zealand followed by the United States to present their 
opening statements first. Subsequently, th e Panel shall invite Indonesia to present its 
point of view. Before each party takes the floor, it shall provide the Panel and other 
participants at the meeting with a provisional written version of its statement. In the 
event that interpretation is needed , each party shall provide additional copies for the 
interpreters, through the Panel Secretary. Each party shall make available to the Panel 
and the other parties the final version of its opening statement as well as its closing 
statement, if any, preferab ly at the end of the meeting, and in any event no later than 
5.00 p.m. on the first working day following the meeting.  
b. After the conclusion of the statements, the Panel shall give each party the opportunity to 
ask each other questions or make comments, thr ough the Panel. Each party shall then 
have an opportunity to answer these questions orally. Each party shall send in writing, 
within a timeframe to be determined by the Panel, any questions to the other parties to 
which it wishes to receive a response in w riting. Each party shall be invited to respond in 
writing to the other party's written questions within a deadline to be determined by the 
Panel.  
c. The Panel may subsequently pose questions to the parties. Each party shall then have an 
opportunity to answer these questions orally. The Panel shall send in writing, within a 
timeframe to be determined by it, any questions to the parties to which it wishes to 
receive a response in writing. Each party shall be invited to respond in writing to such 
questions within  a deadline to be determined by the Panel.  WT/DS477/R/Add.1 • WT/DS478/ R/Add.1  
 
- B-3 - 
 
  d. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with the complainants presenting its statement first.  
1.15.   The second substantive meeting of t he Panel with the parties shall be conducted as follows:  
a. The Panel shall ask Indonesia if it wishes to avail itself of the right to present its case 
first. If so, the Panel shall invite Indonesia to present its opening statement, followed by 
the complainan ts. If Indonesia chooses not to avail itself of that right, the Panel shall 
invite New Zealand followed by the United States to present their opening statements 
first. Before each party takes the floor, it shall provide the Panel and other participants 
at the meeting with a provisional written version of its statement. In the event that 
interpretation is needed, each party shall provide additional copies for the interpreters, 
through the Panel Secretary. Each party shall make available to the Panel and the other 
parties the final version of its opening statement as well as its closing statement, if any, 
preferably at the end of the meeting, and in any event no later than 5.00  p.m. of the 
first working day following the meeting.  
b. After the conclusion of the st atements, the Panel shall give each party the opportunity to 
ask each other questions or make comments, through the Panel. Each party shall then 
have an opportunity to answer these questions orally. Each party shall send in writing, 
within a timeframe to b e determined by the Panel, any questions to the other parties to 
which it wishes to receive a response in writing. Each party shall be invited to respond in 
writing to the other parties' written questions within a deadline to be determined by the 
Panel.  
c. The Panel may subsequently pose questions to the parties. Each party shall then have an 
opportunity to answer these questions orally. The Panel shall send in writing, within a 
timeframe to be determined by it, any questions to the parties to which it wishes to 
receive a response in writing. Each party shall be invited to respond in writing to such 
questions within a deadline to be determined by the Panel.  
d. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief c losing statement, with the party that presented its opening statement 
first, presenting its closing statement first.  
Third parties  
 
1.16.   The Panel shall invite each third party to transmit to the Panel a written submission prior to 
the first substantive meetin g of the Panel with the parties, in accordance with the timetable 
adopted by the Panel.  
1.17.   Each third party shall also be invited to present its views orally during a session of this first 
substantive meeting, set aside for that purpose. Each third party sha ll provide to the Panel the list 
of members of its delegation in advance of this session and no later than 5.00  p.m. the previous 
working day.  
1.18.   The third -party session shall be conducted as follows:  
a. All third parties may be present during the entirety of t his session.  
b. The Panel shall first hear the arguments of the third parties in alphabetical order. Third 
parties present at the third -party session and intending to present their views orally at 
that session, shall provide the Panel, the parties and other third-parties with provisional 
written versions of their statements before they take the floor. Third parties shall make 
available to the Panel, the parties and other third parties the final versions of their 
statements, preferably at the end of the sessio n, and in any event no later than 
5.00 p.m. of the first working day following the session.  
c. After the third parties have made their statements, the parties may be given the 
opportunity, through the Panel, to ask the third parties questions for clarificati on on any 
matter raised in the third parties' submissions or statements. Each party shall send in WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- B-4 - 
 
  writing, within a timeframe to be determined by the Panel, any questions to a third party 
to which it wishes to receive a response in writing.  
d. The Panel may subsequently pose questions to the third parties. Each third party shall 
then have an opportunity to answer these questions orally. The Panel shall send in 
writing, within a timeframe to be determined by it, any questions to the third parties to 
which it w ishes to receive a response in writing. Each third party shall be invited to 
respond in writing to such questions within a deadline to be determined by the Panel.  
Descriptive part  
 
1.19.   The description of the arguments of the parties and third parties in the de scriptive part of 
the Panel report shall consist of executive summaries provided by the parties and third parties, 
which shall be annexed as addenda to the report. These executive summaries shall not in any way 
serve as a substitute for the submissions of the parties and third parties in the Panel's examination 
of the case.  
1.20.   Each party shall submit executive summaries of the facts and arguments as presented to 
the Panel in its written submissions and oral statements, in accordance with the timetable adopted  
by the Panel. These summaries may also include a summary of responses to questions. Each such 
executive summary shall not exceed 15 pages. The Panel will not summarize in the descriptive 
part of its report, or annex to its report, the parties' responses t o questions.  
1.21.   Each third party shall submit an executive summary of its arguments as presented in its 
written submission and statement in accordance with the timetable adopted by the Panel. This 
summary may also include a summary of responses to questions, where relevant. The executive 
summary to be provided by each third party shall not exceed 6  pages.   
Interim review  
 
1.22.   Following issuance of the interim report, each party may submit a written request to review 
precise aspects of the interim report and reques t a further meeting with the Panel, in accordance 
with the timetable adopted by the Panel. The right to request such a meeting shall be exercised no 
later than at the time the written request for review is submitted.  
1.23.   In the event that no further meeting w ith the Panel is requested, each party may submit 
written comments on the other party's written request for review, in accordance with the timetable 
adopted by the Panel. Such comments shall be limited to commenting on the other parties' written 
request fo r review.  
1.24.   The interim report, as well as the final report prior to its official circulation, shall be kept 
strictly confidential and shall not be disclosed.  
Service of documents  
 
1.25.   The following procedures regarding service of documents shall apply:  
a. Each pa rty and third party shall submit all documents to the Panel by filing them with 
the DS  Registry (office No. 2047).  
b. Each party and third party shall file three paper copies of all documents it submits to the 
Panel. Exhibits may be filed in four copies pref erably in a USB key (CD -ROM or DVD also 
possible) and three paper copies. The DS  Registrar shall stamp the documents with the 
date and time of the filing. The paper version shall constitute the official version for the 
purposes of the record of the dispute . 
c. Each party and third party shall also provide an electronic copy of all documents it 
submits to the Panel at the same time as the paper versions, preferably in Microsoft 
Word format, either on a USB key, a CD -ROM, a DVD or as an e -mail attachment. If the  
electronic copy is provided by e -mail, it should be addressed to DSRegistry@wto.org , 
with a copy to ****.****@wto.org , ****.****@wto.org , ****.****@wto.org , and WT/DS477/R/Add.1 • WT/DS478/ R/Add.1  
 
- B-5 - 
 
  ****.****@wto.org . If a USB key, CD -ROM or DVD is provided, it shall be filed with the 
DS Regi stry.  
d. Each party shall serve any document submitted to the Panel directly on the other party. 
Each party shall, in addition, serve on all third parties its written submissions in advance 
of the first substantive meeting with the Panel. Each third party sh all serve any 
document submitted to the Panel directly on the parties and all other third parties. Each 
party and third party shall confirm, in writing, that copies have been served as required 
at the time it provides each document to the Panel.  
e. Each party  and third party shall file its documents with the DS Registry and serve copies 
on the other parties (and third parties where appropriate) by 5.00  p.m. (Geneva time) 
on the due dates established by the Panel. A party or third party may submit its 
documents  to another party or third party in electronic format only, subject to the 
recipient party or third party's prior written approval and provided that the Panel 
Secretary is notified.  
f. The Panel shall provide the parties with an electronic version of the desc riptive part, the 
interim report and the final report, as well as of other documents as appropriate. When 
the Panel transmits to the parties or third parties both paper and electronic versions of a 
document, the paper version shall constitute the official version for the purposes of the 
record of the dispute.  
1.26.   The Panel reserves the right to modify these procedures as necessary, after consultation 
with the parties.  
 
_______________  
 
 WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- C-1 - 
 
  ANNEX  C 
ARGUMENTS OF THE PAR TIES 
NEW ZEALAND  
Contents  Page  
Annex  C-1 First part of the executive summary of the arguments of New Zealand  C-2 
Annex  C-2 Second part of the executive summary of the arguments of New Zealand  C-14 
 
UNITED STATES  
Contents  Page  
Annex  C-3 First part of the executive summary of the arguments of the U nited States   C-27 
Annex  C-4 Second part of the executive summary of the arguments of the United States  C-39 
 
INDONESIA  
Contents  Page  
Annex  C-5 First part of the executive summary of  the arguments of Indonesia  C-51 
Annex  C-6 Second part of the executiv e summary of the arguments of Indonesia  C-57 
 WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
-C-2 - 
 
  ANNEX  C-1 
FIRST PART OF THE EX ECUTIVE SUMMARY OF T HE ARGUMENTS OF NEW ZEALAND  
INTRODUCTION  
1. This dispute arises from Indonesia's prohibitions and restrictions on imports of animals, 
animal products and horti cultural products. Indonesia's measures are imposed through complex 
import licensing regimes that underpin a publicised government strategy to reduce imports to 
encourage domestic agricultural production in the hope of achieving self -sufficiency in food.  
I. FACTUAL  BACKGROUND  
2. Indonesia has enacted an overarching framework of laws that constitute import restrictions 
in their own right and provide the legislative basis for its import licensing regimes for animals, 
animal products and horticultural products .  
3. Both regimes share similar features, including overarching framework legislation limiting 
agricultural imports to situations where domestic food production is deemed insufficient to fulfil 
domestic demand and laws and regulations that prohibit and re strict imports through a series of 
discrete requirements and as a whole.  
A. FRAMEWORK LEGISLATIO N 
4. At the core of Indonesia's import regime is legislation which expressly prohibits importation 
of animals, animal products, horticultural products and food in circumstances where domestic 
production is deemed sufficient to meet domestic demand. This is reflected, for example, through 
Article 36B(1) of the Animal Law Amendment which provides that "Importation of Livestock and 
Animal Product from overseas into the Territory of the Republic of Indonesia can be perform if 
domestic production and supply of Livestock and Animal Product has not fulfil public consumption", 
and Article 36(1) of the Food Law  which provides that importation of food is only permissible "i f 
the domestic Food Production is insufficient and/or cannot be produced domestically".  
B. IMPORT LICENSING REG IMES  
5. The framework legislative provisions which limit imports of agricultural products based on 
sufficiency of domestic production provide the  framework for two separate but similar import 
licensing regimes for animals and animal products (on the one hand) and horticultural products 
(on the other hand).   
(A) Animals and animal products  
 
6. In order to import animals and animal products into Indo nesia, regulations require importers 
to obtain an MOA Recommendation from the Ministry of Agriculture and an Import Approval from 
the Ministry of Trade.  In addition, importers of bovine animals and animal products are required to 
obtain an Importer Designa tion from the Ministry of Trade.    
(B) Horticultural products  
 
7. Similarly, in order to import certain listed horticultural products into Indonesia, importers of 
horticultural products must also obtain an Importer Designation, a Horticultural Product Impo rt 
Recommendation (RIPH) from the Ministry of Agriculture and an Import Approval from the Ministry 
of Trade.  
8. It is through the process of issuing these documents, and the requirements which must be 
satisfied by importers in order to obtain them, that In donesia restricts imports of animals and 
animal products and horticultural products.  The specific prohibitions and restrictions made 
effective through these import licensing regimes are detailed below.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- C-3 - 
 
  C. PROHIBITIONS AND RES TRICTIONS IMPOSED TH ROUGH INDON ESIA'S IMPORT 
LICENSING REGIME FOR  ANIMALS AND ANIMAL P RODUCTS  
9. Importer Designations, MOA Recommendations and Import Approvals are the mechanism 
through which Indonesia imposes a number of prohibitions and restrictions on the importation of 
animals and animal products.  
 
a. Prohibitions of certain animal and animal product imports:  Indonesia prohibits the 
importation of certain animals and animal products that are not listed in the Appendices to 
MOT 46/2013  or MOA 139/2014 . In particular, bovine meat and  offal products that are not 
listed in Appendix I, MOA 139/2014  and Appendix I,  MOT 46/2013  are prohibited from 
importation.  This includes all bovine offal products (except some cuts of tongue and tail), 
certain forms of manufacturing meat and, except in c ertain exceptional circumstances, all 
bovine secondary cuts and carcass;  
 
b. Limited application windows and validity periods:  MOA Recommendations and Import 
Approvals are valid for limited time periods, and may only be applied for during limited 
applicati on windows;  
 
c. Fixed Licence Terms:  MOA Recommendations and Import Approvals together specify the 
type, quantity, country of origin, and port of entry for products that an importer may 
import during the validity period. This prevents importers from impor ting, during a 
Quarter, products of a different type, in a greater quantity, from another country, or 
through a different port than those specified in their MOA Recommendations and Import 
Approvals;  
 
d. 80% realisation requirement:  Importers are required t o import, on an annual basis, 80% 
of the quantity of each type of product specified in their Import Approvals or face severe 
sanctions;  
 
e. Restrictions on use, sale and distribution of imported bovine meat and offal:  Bovine meat, 
carcass and offal is only  permitted to be imported for use in hotels, restaurants, catering 
and industry and for a very limited range of other "special needs". Such products are 
therefore prohibited from being imported for certain uses and for sale or distribution 
through certain channels (including sale directly to consumers at modern and traditional 
markets, which are the primary consumer retail channels for bovine products in 
Indonesia);  
 
f. Domestic Purchase Requirement : Importation of bovine meat is only permitted on the 
condition that importing entities have purchased ("absorbed") designated quantities of 
beef raised and slaughtered in Indonesia; and  
 
g. Beef reference price:  Importation of bovine animals and animal products is prohibited 
when the domestic market price of bee f secondary cuts falls below a specified reference 
price.  
 
10. These components of Indonesia's import licensing regime, both when viewed as distinct 
individual measures and as elements of a single overarching measure, are inconsistent with 
Indonesia's WTO obligations.  
 
D. PROHIBITIONS AND RES TRICTIONS IMPOSED TH ROUGH INDONESIA'S IM PORT 
LICENSING REGIME FOR  HORTICULTURAL PRODUC TS 
 
11. Importer Designations, RIPH and Import Approvals are the mechanism through which 
Indonesia imposes a number of prohibitions a nd restrictions on the importation of horticultural 
products.  
a. Limited application windows and validity periods : RIPH and Import Approvals may only be 
applied for during limited application windows and are valid for limited time periods;  
 
b. Fixed Licen ce Terms : RIPH and Import Approvals together specify the type, quantity, 
country of origin, and port of entry for products that an importer may import during the 
validity period. This prevents importers from importing products of a different type, in a WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  greater quantity, from another country, or through a different port than those specified in 
their RIPH and Import Approvals;  
 
c. 80% Realisation Requirement : Importers are required to import 80 percent of the quantity 
of each product specified in their Import  Approvals for the applicable six month period or 
face severe sanctions;  
 
d. Restrictions based on the Indonesian harvest period : Indonesia prohibits or restricts 
imports of certain horticultural products during Indonesian harvest periods;  
 
e. Restrictions  on storage ownership and capacity : Importers are required to own storage 
facilities of appropriate capacity and may only import volumes commensurate with that 
storage capacity;  
 
f. Restrictions on use, sale and distribution : Importers are restricted in th e use, sale and 
distribution of listed horticultural products. Registered Importers (RI) are prohibited from 
trading and/or transferring imported products directly to consumers or retailers. Producer 
Importers (PI) may only use imported products for proces sing and are prohibited from 
trading and/or transferring such products;  
 
g. Reference prices for chili and shallots : Importation of chili and shallots is prohibited when 
the domestic market price of the product falls below a specified reference price; and  
 
h. Six month harvesting requirement : Indonesia prohibits the importation of listed fresh 
horticultural products harvested more than 6 months previously.  
 
12. These measures are inconsistent with Indonesia's WTO obligations, both when viewed as 
individual measures and when considered as part of a single overarching measure.  
 
II. LEGAL  DISCUSSION  
A. ARTICLE XI:1 OF THE GATT 1994 AND ARTICL E 4.2 OF THE AGREEME NT ON 
AGRICULTURE  
1. Obligation under Article XI:1 of the GATT 1994  
 
13. WTO panels have repeatedly  emphasised the broad scope of Article  XI:1.1 Article XI:1 
prohibits WTO Members from instituting or maintaining prohibitions or restrictions other than 
duties, taxes, or other charges, on the importation, exportation, or sale for export of any product 
destined for another WTO Member.2 The scope of Article XI:1 includes measures through which a 
prohibition or restriction is produced or becomes operative.3  
 
14. The Appellate Body has confirmed that a "restriction" is a thing which "restricts someone or 
some thing, a limitation on action, a limiting condition or regulation" and as generally something 
that has a limiting effect.4 A measure can have a "limiting effect" on importation for a wide variety 
of reasons.  For example, the panel in Argentina - Import Mea sures  applied a framework for 
assessing consistency with Article XI:1 which was based on restrictions that had been found by 
past panels to be covered by Article XI:1.5 It came to the conclusion that measures have a limiting 
effect on imports and constitut e an import restriction when they: (a) restrict market access; 
(b) create uncertainty as to an applicant's ability to import; (c) do not allow companies to import 
as much as they desire or need without regard to their export performance; and (d) impose a 
                                                
1 Panel  Reports, Argentina - Import Measures , para. 6.251; Colombia - Ports of Entry , para. 7.233; 
India - Quantitative Restrictions , para. 5.128; India - Autos , para. 7.264; and Dominican Republic - Cigarettes , 
para. 7.248.  
2 Appellate Body Report, Argentina - Import Measures , para. 5.216.  
3 Appellate Body Report, Argentina - Import Measures , para. 5.218.  
4 Appellate Body Reports, China - Raw Materials , para. 319; Argentina - Import Measures , para.  5.217.   
5 Panel Report, Argentina - Import Measures , para. 6.454.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  significant burden on importers that is unrelated to their normal importing activity.6 The panel's 
framework in that case was not questioned by the Appellate Body.7 
15. It is also clear that, for a measure to constitute a quantitative restriction, it is not  necessary 
for the measure to have an adverse impact on trade flows. This was confirmed by the Appellate 
Body in Argentina – Import Measures , which stated that the limiting effect of a measure "need not 
be demonstrated by quantifying the effects of the mea sure at issue" but rather can be 
"demonstrated through the design, architecture, and revealing structure of the measure at issue 
considered in its relevant context".8 Although the Complainants have demonstrated that the trade 
impact of Indonesia's regime i s severe, an adverse impact on trade flows is not a necessary 
component of the legal test for a quantitative restriction.  
2. Obligation under Article 4.2 of the Agreement on Agriculture  
 
16. Article 4.2 of the Agreement on Agriculture prohibits WTO Member s from maintaining, 
reverting to, or resorting to measures of the kind which have been required to be converted into 
ordinary customs duties. The list of measures identified in the footnote to Article 4.2 is illustrative. 
It includes quantitative import re strictions and minimum import prices. It also includes "similar" 
border measures other than ordinary customs duties.  
 
17. The Appellate Body in Chile - Price Band System  viewed Article 4 of the Agreement on 
Agriculture "as the legal vehicle for requiring the conversion into ordinary customs duties of certain 
market access barriers affecting imports of agricultural products".9 Further, the Appellate Body 
stated that "Article 4.2 prevents WTO Members from circumventing their commitments on 
'ordinary customs duties' by prohibiting them from 'maintaining, reverting to, or resorting to' 
measures other than 'ordinary customs duties'".10 
 
18. While a measure that is inconsistent with Article XI:1 of the GATT 1994 would, to the extent 
it applies to agricultural prod ucts, be inconsistent with Article 4.2 of the Agreement on Agriculture, 
the reverse is not necessarily the case. As the Appellate Body indicated in Chile - Price Band 
System , the scope of measures prohibited by Article 4.2 extends beyond the "restrictions other 
than taxes, duties and charges" that are prohibited by Article XI:1 of the GATT 1994.11  
3. Indonesia's import licensing regime for animals and animal products is 
inconsistent with Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement 
on Agri culture  
 
19. New Zealand submits that each of individual components of Indonesia's import licensing 
regime for animals and animal products, and the regime viewed "as a whole" constitute 
"prohibitions" or "restrictions" that are inconsistent with Article XI :1 of the GATT 1994 and are a 
"quantitative import restriction" or "similar border measure" prohibited under Article 4.2 of the 
Agreement on Agriculture.  The beef reference price measure is also inconsistent with Article 4.2 of 
the Agreement on Agriculture  by virtue of constituting a "minimum import price", "quantitative 
import restriction" or "similar border measure".  
 
(a) The prohibition on imports of certain animal products is inconsistent with 
Article  XI:1 of the GATT 1994 and Article 4.2 of the Agreeme nt on Agriculture  
 
20. Indonesia uses a "positive list" system to prohibit the importation of certain forms of meat, 
offal and carcass.  In particular, any bovine meat, offal or carcass products that are not listed in 
both Appendix I of MOA 139/2014  and App endix I of MOT 46/2013  are ineligible to obtain an 
MOA Recommendation (and therefore an Import Approval, which requires an 
MOA Recommendation as a prerequisite).  As a consequence of being unable to obtain 
MOA Recommendations and Import Approvals, importers  are prohibited from importing these 
                                                
6 Panel Report, Argentina - Import Measures , para. 6.474.  
7 Appellate Body Report, Argentina - Import Measures , paras. 5.287 -5.288.  
8 Appellate Body Report, Argentina – Import Measures , para. 5.217.  
9 Appellate Body Report, Chile - Price Band System , para. 201.  
10 Ibid. para. 187.  
11 Appellate Body Report , Chile - Price Band System , para. 256.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  products contrary to Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on 
Agriculture.  
 
21. Indonesia claims that products not listed in MOT Regulation 46/2013  are able to be imported 
freely without being s ubject to any import requirements.12  However, this is directly contradicted 
by Article 59(1) of the Animal Amendment Law  which provides that all importers of animal 
products must obtain an import licence from the Ministry of Trade after receiving a 
recomme ndation from the Minister for fresh animal products.  It is also at odds with Indonesian 
regulations, reported statements by Indonesian officials, statements by exporters, media 
coverage, statements by other WTO Members and trade statistics.  
 
22. Although i mporters are unable to apply for and obtain MOA Recommendations and Import 
Approvals for bovine carcass and beef secondary cuts, a limited exception applies that enables the 
Indonesian Government, acting through two Ministers, to direct Indonesian State -Owned 
Enterprises to conduct importation of these products where certain emergency circumstances are 
deemed to exist.  These conditions are designed in a way which permits importation only in 
circumstances where there are shortages in domestic supply of these  products, as evidenced 
through a lack of "food availability", high domestic prices for such products, disease outbreaks or 
natural disasters which affect levels of supply within Indonesia.  This is consistent with Indonesia's 
overarching objective of preve nting imports in circumstances where domestic supply is deemed 
sufficient to satisfy domestic demand.  
 
(b) Limited application windows and validity periods are inconsistent with Article XI:1 
of the GATT 1994 and Article 4.2 of the Agreement on Agriculture  
 
23. Indonesia limits the ability of importers to obtain MOA Recommendations and Import 
Approvals by prohibiting importers from applying for these documents outside four one -month 
periods, and specifying that Import Approvals are valid for only the three m onth duration of each 
Quarter.  
 
24. Import orders are unable to be finalised and shipped  until after an Import Approval is 
issued, as the health certificate issued by the exporting country is required to specify the number 
and date of issue of the Import A pproval.  As exporters need time to prepare, package and ship 
product, this restricts imports at the start of each Quarter.  The limited validity period also means 
that imports are restricted at the end of each Quarter as product arriving after this date wil l be 
refused entry into Indonesia and re -exported.  
 
25. These limited application windows and validity periods for MOA Recommendations and 
Import Approvals restrict imports by limiting the time periods during which exporters are able to 
access the Indonesi an market and accordingly have a limiting effect on importation that is 
inconsistent with Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture.  
 
(c) Fixed Licence Terms are inconsistent with Article XI:1 of the GATT 1994 and 
Articl e 4.2 of the Agreement on Agriculture  
 
26. MOA Recommendations and Import Approvals collectively specify the type, quantity, country 
of origin and port of entry of animals and animal products permitted per Quarter.  These Fixed 
Licence Terms restrict import s by imposing quarterly quantitative limits on bovine animals and 
animal products that may be imported into Indonesia and "lock in" the terms of the licence at the 
commencement of the relevant Quarter.  
 
27. The inherent difficulty that exists in determini ng these variables prior to the commencement 
of a Quarter (when importers must finalise their applications for MOA Recommendations and 
Import Approvals) creates uncertainty for importers and affects their ability to plan and respond to 
market fluctuations during the course of each Quarter.  These restrictions eliminate importers' 
flexibility to respond to changes in external factors that occur during a Quarter, and therefore limit 
an importer's ability to alter its import quantities during that period, in vi olation of Article XI:1 of 
the GATT 1994 and Article 4.2 of the Agreement on Agriculture.  
 
                                                
12 Indonesia's first writte n submission, paras. 34, 96 -98. WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  28. Indonesia concedes that these terms are "static for the length of one validity period".13 As a 
result, these requirements impose a quota on imports during that 3 -month period.  Indonesia seeks 
to distance itself from these measures by arguing that the terms are self -selected by private 
actors.14 However, it is precisely because importers are required to "lock in" each term per period, 
while at the same time mandating  that non -complying products will be re -exported, that Indonesia 
eliminates importer flexibility and restricts trade. This loss of flexibility is not a result of 
autonomous decisions by importers, but rather a direct consequence of the design, architecture  
and revealing structure of Indonesia's regulations.   
 
(d) 80% realisation requirement  
 
29. Upon being granted an Import Approval for bovine animals or animal products, an importer 
must import no less than 80% (and no more than 100%) of the quantity of eac h of the products 
specified in the Import Approval.  This has the effect of inducing importers to reduce the quantities 
that they request in their quarterly MOA Recommendations and Import Approvals.  
 
30. The limiting effect of the 80% realisation requireme nt is magnified when combined with the 
Fixed Licence Terms. The constraints imposed by the Fixed Licence Terms limits the flexibility 
available to importers to satisfy the 80% realisation requirement (for example by importing 
different meat cuts, from diff erent countries, or into different ports), and therefore further induces 
importers to reduce the quantities they request in Import Approvals contrary to Article XI:1 of the 
GATT 1994 and Article 4.2 of the Agreement on Agriculture.  
 
(e) Prohibitions and r estrictions on the use, sale and distribution of imported animals 
and animal products  
 
31. Indonesia prohibits the importation of animals and animal products for particular uses, and 
for sale and distribution through certain outlets. Specifically, bovine m eat, permitted offal 
(i.e. tongue and tail) and carcass may only be imported into Indonesia for use by "industry, hotels, 
restaurant, catering, and/or other special needs", and may only be distributed or sold through 
these same channels.  Accordingly, these  products are prohibited from being imported for sale 
through both modern and traditional retail channels.  
 
32. The effect of these measures is that bovine carcass, meat and offal are not permitted to be 
imported into Indonesia for any form of domestic use , or sold or distributed through consumer 
retail outlets.  Importantly, it precludes imported beef from being sold at modern markets such as 
supermarkets and hypermarkets as well as traditional retail outlets such as wet markets, small 
stalls or shops and s treet carts. This substantially reduces the opportunities for imported products 
to reach Indonesian consumers who buy their household food products at these locations, and 
effectively precludes importation of bovine products for domestic consumption. Impor ts of other 
meat products are not restricted to the same extent, and sales of such products are expressly 
permitted for sale through modern markets, such as supermarkets or hypermarkets (but also 
excluding traditional markets).  
 
33. Thus, Indonesia's restr ictions on use, sale and distribution are designed in a way which 
directly restricts the importation of bovine meat and offal and therefore constitute a "restriction" 
on importation maintained in violation of Article XI:1 of the GATT 1994 and a "quantitati ve import 
restriction"or "similar border measure" maintained contrary to Article 4.2 of the Agreement on 
Agriculture.  
 
(f) Domestic purchase requirement  
 
34. In order to import beef for retail purposes, at least three percent of an importer's total beef 
purchases must be derived from Indonesian cows.  This requirement forces importers to substitute 
imported beef with domestically -produced beef, and therefore directly limits the quantity of beef 
that importers could otherwise import.   
 
35. Indonesia's Domesti c Purchase Requirement is structurally akin to the local content 
requirement considered by the panel in Argentina - Import Measures and found, as part of a suite 
                                                
13 Indonesia’s first written submission, para. 105.  
14 Indonesia’s first written submission, paras. 104 -106. WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  of trade related requirements, to be inconsistent with Article XI:1 of the GATT 1994. All beef  
importers are required to demonstrate that they have purchased a specified quantity of 
domestically produced beef in order to import any beef and therefore requires importers to 
substitute imported beef with beef that is domestically produced. This has a limiting effect on 
imports into Indonesia in breach of Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement 
on Agriculture.  
 
(g) Reference price for beef  
  
36. Indonesia imposes a reference price system for bovine animals and animal products. 
MOT 46/2013  provides that imports of bovine animals and animal products are suspended if the 
market price of beef secondary cuts in Indonesia falls below a specified "reference price".  This 
measure has the effect of limiting imports by prohibiting the import ation of bovine animals and 
animal products when the domestic market price of these products falls below a stipulated 
reference price, thereby constituting a prohibition or restriction on imports in breach of 
Article  XI:1.  
 
37. The beef reference price is  functionally similar to a traditional "minimum import price", as 
both a minimum import price and the beef reference price have the effect of establishing a 
minimum price below which imported beef cannot enter the market. This is consistent with the use 
of the term "minimum import price" in Chile - Price Band System , which was said by the Appellate 
Body to "refer generally to the lowest price at which imports of a certain product may enter a 
Member's domestic market".15 
 
38. Further, because it imposes a tot al prohibition on importation of bovine animals and animal 
products in circumstances where domestic prices fall below a specified level, the beef reference 
price is also a "quantitative import restriction" within the meaning of footnote 1 to Article 4.2.  
 
39. Accordingly, the beef reference price constitutes both a "quantitative import restriction" or 
"similar border measure" and a "minimum import price" or "similar border measure" for the 
purposes of Article 4.2 of the Agreement on Agriculture.  
 
4. Indone sia's import licensing regime for horticultural products is inconsistent with 
Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture  
 
40. Indonesia's import licensing regime for horticultural products is similar in many respects to 
that for animals and animal products. New Zealand submits that each of individual components of 
Indonesia's import licensing regime for horticultural products, and the regime viewed "as a whole", 
constitute "prohibitions" or "restrictions" that are inconsis tent with Article XI:1 of the GATT 1994.  
They are also measures of the kind which have been required to be converted into ordinary 
customs duties and maintained contrary to Article 4.2 of the Agreement on Agriculture.  
 
(a) Limited application windows and v alidity periods are inconsistent with Article XI:1 
of the GATT 1994 and Article 4.2 of the Agreement on Agriculture  
 
41. Importers of horticultural products may only submit applications for RIPHs and Import 
Approvals during limited windows and the RIPHs an d Import Approval are only valid for limited 
periods.  These requirements are structured in such a way that imports are severely restricted at 
the start and at the end of the validity period due to the delay between Import Approvals being 
issued and product  being processed and shipped to Indonesia.  
 
(b) Fixed licence terms are inconsistent with Article XI:1 of the GATT 1994 and 
Article  4.2 of the Agreement on Agriculture  
 
42. As is the case with the importation of animals and animal products, Importer Design ations, 
RIPHs and Import Approvals set out the fixed terms for the importation of horticultural products 
into Indonesia.  By determining the import terms at the start of a validity period, and not allowing 
those terms to be amended during the validity perio d of the import licences, Indonesia's 
restrictions remove the ability of importers to respond to market forces and external factors that 
occur during a validity period.  
                                                
15 Appellate Body Report, Chile - Price Band System , para. 236.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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(c) 80% realisation requirement is inconsistent with Article XI:1 of the GATT 1994 
and Article 4.2 of the Agreement on Agriculture  
 
43. Importers must "realise" 80% of the quantity of each type of horticultural product specified 
in the Import Approval or face severe sanctions.  This produces a direct incentive for importers to 
conservativel y estimate the quantities that they request in their Import Approval and accordingly 
has a limiting effect on imports.  Accordingly, the measure is a quantitative restriction prohibited by 
Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Ag riculture.  
 
(d) Restrictions based on Indonesian harvest periods are inconsistent with 
Article  XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture  
 
44. Indonesia prohibits or restricts the importation of certain horticultural products acc ording to 
Indonesian domestic harvest seasons. The measure protects domestic Indonesian horticultural 
products by eliminating imported competition at certain times of the year.  As a prohibition or 
restriction on the import of horticultural products, the re striction based on the Indonesian harvest 
period is a quantitative restriction prohibited by Article XI:1 of the GATT 1994 and Article 4.2 of 
the Agreement on Agriculture.  
 
(e) The storage ownership and capacity requirement is inconsistent with Article XI: 1 
of the GATT 1994 and Article 4.2 of the Agreement on Agriculture  
 
45. Indonesia requires that horticultural importers own appropriate storage facilities for 
horticultural products and limits total imports during a six -month validity period to an importer 's 
certified storage capacity.  This assumes that importers have zero turnover of product over the six -
month validity period.  This has a significant limiting effect on the quantity of imports that 
importers are able to apply for in their Import Approvals as  it is the storage capacity which 
dictates the quantity of product imported, not market conditions. The measure is therefore a 
quantitative restriction that is inconsistent with Article XI:1 of the GATT 1994 and Article 4.2 of the 
Agreement on Agriculture.  
 
(f) Restrictions on use, sale and distribution of imported horticultural products are 
inconsistent with Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement 
on Agriculture  
 
46. Indonesia's import licence regime places restrictions on the use, s ale and distribution of 
imported horticultural products which cannot be imported for direct sale to consumers and 
retailers.  This constrains the ability of importers to market imported product, reduces the 
opportunity for imported products to reach Indones ian householders and adds a distribution layer.  
Accordingly the measure has a limiting effect on imports contrary to Article XI:1 of the GATT 1994 
and Article 4.2 of the Agreement on Agriculture.  
 
(g) Reference prices for chili and shallots are inconsisten t with Article XI:1 of the 
GATT 1994 and Article 4.2 of the Agreement on Agriculture  
 
47. The reference price for chili and shallots operates in a similar manner to the reference price 
for beef.  If the price of chili or shallots in the domestic market is b elow a stipulated reference 
price, the importation of chili and shallots is "postponed" (i.e. prohibited) until the domestic price 
exceeds the reference price.  As a result imports of fresh chili into Indonesia have essentially been 
non-existent since the e nd of 2012.  The measure is designed to operate as a ceiling below which 
imports of chili and shallots cannot enter the domestic market and therefore falls within the 
meaning of "minimum import price" or a similar border measure contrary to Article 4.2 of t he 
Agreement on Agriculture.  As by its nature it has a limiting or restricting effect on trade, it is also 
a quantitative restriction prohibited by Article XI:1 of the GATT 1994.  
 
(h) The six month harvesting requirement is inconsistent with Article XI:1 o f the 
GATT 1994 and Article 4.2 of the Agreement on Agriculture  
 
48. Indonesia prohibits the importation of horticultural products that have been harvested more 
than six months previously. If an importer violates this requirement, it will not be granted an  RIPH 
for one year. The six month harvesting requirement operates as an absolute prohibition on imports WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  of horticultural products contrary to Article XI:1 of the GATT 1994 and Article 4.2 of the 
Agreement on Agriculture.  
5. Indonesia's import restrictions based on sufficiency of domestic production are 
quantitative import restrictions or similar measures inconsistent with Article XI:1 
of the GATT 1994 and Article 4.2 of the Agreement on Agriculture  
 
49. Indonesia's domestic insufficiency condition is set ou t in the Animal Law , Animal Law 
Amendment, Horticulture Law , Food Law  and Farmers Law . These laws, both separately and 
collectively, restrict imports of certain animals, animal products and horticultural products by 
prohibiting importation of products in c ircumstances where domestic production is deemed 
sufficient to meet domestic demand.  
 
50. The domestic insufficiency condition independently  limits importation, as imported products 
are only given market access on the condition, and to the extent that, do mestic supply is deemed 
insufficient to satisfy Indonesian needs.  These measures constitute prohibitions or restrictions on 
importation under Article XI:1 of the GATT 1994, and quantitative import restrictions within the 
meaning of footnote 1 to Article 4. 2 of the Agreement on Agriculture, because they have a limiting 
effect on importation.  This limiting effect is generated by (a) prohibiting importation in 
circumstances where domestic production is deemed sufficient to meet domestic demand; and (b) 
creatin g uncertainty for importers as to if, or when, imports of certain products will be permitted.  
 
51. The domestic insufficiency condition also provides the basis for more specific measures that 
operate to restrict imports , including Indonesia's import licens ing regime for animals and animal 
products, and for horticultural products.  As described above, Indonesia's import licensing regimes 
are designed to restrict imports with a view to Indonesia achieving self -sufficiency in food.  Just as 
the specific requirem ents of these import regimes have a limiting effect on imports, the legislative 
provisions based on sufficiency of domestic production that guide and enable the import licensing 
regimes, also have a limiting effect on imports.  
 
52. Accordingly, Indonesia's  import restrictions based on sufficiency of domestic production are 
inconsistent with Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture.  
 
B. ARTICLE III:4 OF THE  GATT 1994  
53. New Zealand considers that the Domestic Purchase Re quirement for beef, and the 
restrictions on use, sale and distribution of animal products and horticultural products, constitute 
conditions on importation of these products that are applied at the border and are therefore 
contrary to Article XI:1 of the GA TT 1994 and Article 4.2 of the Agreement on Agriculture. 
However, insofar as these measures affect the "internal sale, offering for sale, purchase, 
transportation, distribution or use" of these products, New  Zealand submits that they are also 
inconsistent with Article III:4 of the GATT 1994.  
 
(a) The Domestic Purchase Requirement for beef is inconsistent with Article III:4 of 
the GATT 1994  
 
54. The Domestic Purchase Requirement for beef "modifies the conditions of competition in the 
relevant market to the d etriment of imported products" by according an advantage to the 
purchase of like domestically -produced products that is not accorded to imported product. The 
only characteristic differentiating domestic from imported beef for the purposes of the Domestic 
Purchase Requirement is the origin of the product, and accordingly, such products are "like" for the 
purposes of Article III:4 of the GATT 1994.  
 
(b) Limiting the use, sale and distribution of imported bovine meat and offal is 
inconsistent with Article III: 4 of the GATT 1994  
 
55. The Indonesian regulations formally treat imported bovine meat and offal differently from 
their like domestic equivalents.  Domestic bovine meat and offal are not restricted in the use to 
which they may be put in the Indonesian domes tic market or to certain points of sale. By contrast, 
imported like products may only be used in industry, hotel, restaurant, catering or other special 
needs and may not be sold in modern or traditional markets.  
 WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  56. This formally different treatment for l ike imported and domestic bovine meat and offal 
products therefore modifies the conditions of competition to the detriment of imported products 
and accords treatment that is "less favourable" to imported bovine meat and offal products.  
Accordingly, the mea sure is inconsistent with Article III:4 of the GATT 1994.  
 
(c) Limiting the use, sale and distribution of imported horticultural products is 
inconsistent with Article III:4 of the GATT 1994  
 
57. The Indonesian regulations formally treat imported horticultu ral products differently from 
their domestic equivalents. Domestic horticultural products are not restricted in the use to which 
they may be put, or the distribution channels that they must go through in the Indonesian 
domestic market. In contrast, importe d like products may only be used in industrial production 
processes or else sold to distributors.  This formally different treatment for like imported and 
domestic horticultural products affects the conditions of competition to the detriment of imported 
products and accords treatment that is "less favourable" to imported horticultural products.  
Accordingly, the measure is inconsistent with Article III:4 of the GATT 1994.  
 
C. AGREEMENT ON IMPORT LICENSING PROCEDURES  
58. New Zealand submits that the limited ap plication windows and validity periods for 
MOA Recommendations and Import Approvals for animals and animal products and RIPH and 
Import Approvals for horticultural products are inconsistent with Article XI:1 of the GATT 1994.  
Furthermore, to the extent tha t the Panel finds that the limited application windows and validity 
periods for animals, animal products and horticultural products are non -automatic licensing 
procedures, New  Zealand submits that they are inconsistent with Article 3.2 of the Agreement on 
Import Licensing Procedures.  
 
59. The limited application windows and validity periods are "non -automatic import licensing 
procedures" within the meaning of Article 3.1 of the Agreement on Import Licensing Procedures. 
Applications for MOA Recommendations, RIPHs and Import Approvals may only be applied for and 
granted during limited time periods, and thus are not able to "be submitted on any working day 
prior to customs clearance" within the meaning of Article 2.1 of the Agreement on Import 
Licensing Procedu res.  
 
60. In addition, the limited application windows and validity periods for MOA Recommendations 
and Import Approvals create trade -restrictive and trade -distortive effects contrary to Article 3.2 of 
the Agreement on Import Licensing Procedures.  
 
III. SPECIFIC ISSUES RAISED IN INDONESIA'S FIRST WRITTEN SUBMISSION  
1. The measures challenged in this dispute are maintained by the Indonesian 
government, not private actors  
 
61. Indonesia has sought to characterise the measures at issue as resulting purely fro m the 
"decisions of private actors".16 However, simply because private actors have the ability to make 
limited decisions about their import needs, does not immunise Indonesia's measures from 
challenge.  Private actors can only operate within the confines of Indonesia's laws and regulations 
and, as the Complainants have demonstrated, Indonesia's laws and regulations constrain the 
actions of private actors which necessarily has a limiting effect on imports.  The measures 
challenged in this dispute are not the co mmercial decisions of private actors.  Rather, the 
challenged measures are those reflected in Indonesia's laws and regulations.  Those measures 
prevent importers from making ordinary commercial decisions and serve to limit imports.  
 
62. The Complainants' pos ition is supported by the jurisprudence.  Panels have confirmed that 
measures which required importers to voluntarily accept certain conditions in order to import 
goods constituted governmental measures falling within the scope of Article XI:1.17 Here, the 
limiting effect of Indonesia's measures derives not from autonomous decisions of private actors, 
but from the trade -restrictive framework within which Indonesia requires importers to operate.  
                                                
16 See Indonesia's first written submission, paras. 52,  67, 69, 74, 101, 102, 104, 119, 138.  
17 Panel Reports, Argentina – Import Measures , para. 6.177; and India – Autos , paras 7.252 – 7.253.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  2.  Indonesia's import licensing regimes are not "automatic"  
 
63. Indonesia has argued that its import licensing regimes are "automatic import licensing 
procedures" because every application is granted and therefore, "by definition", the regime is 
excluded from the scope of Article 4.2 of the Agreement on Agriculture.18 However, import 
licensing regimes, whether automatic or non -automatic, fall under the disciplines of Article XI:1 of 
the GATT 1994 and Article 4.2 of the Agreement on Agriculture.  Further, the measures at issue 
have all been identified by the Complainants  as trade -restricting and as quantitative import 
restrictions, which clearly fall within the scope of the footnote of Article 4.2.   
3. Indonesia has not made a prima facie case that its measures are justified under 
Article XX of the GATT 1994  
 
64. Indonesi a's first written submission raises several arguments, expressed "in the alternative" 
to Indonesia's primary defences, that its measures are within one or more of the general 
exceptions in Articles XX(a), (b) or (d) of the GATT 1994.  Indonesia has the burd en of proving that 
its measures are necessary to achieve those objectives, and must do so in accordance with the 
two-tier test that is well established in WTO jurisprudence.  
 
(a) Indonesia's defences under Article XX(a) – "necessary to protect public mora ls" 
 
65. In relation to animals and animal products, Indonesia argues that its prohibitions on sale in 
traditional open -air markets are necessary to "prevent consumer deception regarding whether 
certain food products are Halal".  The risk of this occurring is perceived to arise because there is no 
widely -used product labelling system in place in those markets.  However, all relevant meat and 
offal products exported from New  Zealand to Indonesia are certified in New  Zealand as satisfying 
halal requirements, in  accordance with Indonesian law.19 This risk, therefore, does not arise.  
 
66. In relation to horticultural products, Indonesia argues that its restrictions on use, sale and 
distribution are justified in order to prevent consumer deception regarding the hala l status of such 
products.  Yet to New  Zealand's knowledge, Indonesia has no halal certification requirements for 
imported horticultural products and distributors are not, in fact, restricted from selling imported 
horticultural products in traditional  marke ts.  
 
67. Accordingly, Indonesia has not made a prima facie  case that any of its measures are 
necessary to protect public morals in terms of Article XX(a).  
 
(b) Indonesia's defences under Article XX(b) – "necessary to protect human, animal 
or plant life or  health"  
 
68. Indonesia claims that several of its measures relating to animals and animal products and 
horticultural products can be justified under Article XX(b). However it has provided little 
elaboration of such justification.   
 
69. One concern of Indo nesia relates to what it describes as the "extremely high risk of unsafe 
food handling that would result " if New Zealand animals and animal products were permitted to be 
sold in traditional Indonesian markets.  However, an arbitrary ban on the sale of impor ted meat in 
traditional markets is not justified by such a concern. New Zealand meat is no less safe than 
Indonesian meat sold at such markets. Indeed, it is likely to be safer, as New  Zealand meat 
processing and preparation processes up to export follow t he highest sanitary standards in 
accordance with the CODEX Code of Hygienic Practice for Meat, and good operating practice.20  
 
70. With respect to horticultural products, New Zealand also has a stringent food safety control 
system which meets Indonesia's r equirements.  In response to Indonesia's specific food safety 
concerns about storage of products with long shelf lives, such as apples and onions, New Zealand 
already has highly -regarded storage practices for long -life products.  
                                                
18 Indonesia's first written submission, para. 51.  
19 See Animal Products (Overseas Market Access Requirements for Halal Assurances) Notice (No. 3) 
2015, cls 6(1), 6(8) (Exhibit NZL -81); Indonesia, Meat and Meat Products Overseas Market Access 
Requirements, Part 2 (Exhibit NZL -82); Food Law, Article 97(3)(e) (Exhibit JE -2); MOT 46/2013, 
Article  19(2)(e), (Exhibit JE -21). 
20 CODEX Code of Hygienic Practice for Meat, CAC/RCP 58 -2005.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- C-13 - 
 
   
71. The lack of detail prov ided by Indonesia underpinning these Article XX(b) defences means 
that Indonesia has failed to make a prima facie case.  
 
(c) Indonesia's defences under Article XX(d) – necessary to secure compliance with 
laws or regulations…including those relating to cust oms enforcement  
 
72.  Indonesia claims that several of its measures can be justified under Article XX(d). The 
overall theme in Indonesia's first written submission in relation to its defence is that its restrictions 
are necessary for "customs enforcement ". 
 
73. In Korea – Various Measures on Beef , the Appellate Body held that, in order to establish 
provisional justification under Article XX(d), a Member has the burden of demonstrating two 
elements: "First, the measure must be one designed to 'secure complia nce' with laws or 
regulations that are not themselves inconsistent with some provision of the GATT 1994. Second, 
the measure must be 'necessary' to secure such compliance".  
 
74. Indonesia has failed to identify the specific customs enforcement laws or regu lations it 
claims its restrictions are designed to secure compliance with. Furthermore, Indonesia has 
provided no information that would allow the Panel to assess whether such laws or regulations are 
themselves consistent with the GATT 1994, or to what ext ent the restrictions are "necessary " to 
secure compliance with such laws or regulations.  
 
75. For all these reasons, New Zealand considers that Indonesia's Article XX(d) defences do not 
meet the legal standard necessary to establish a prima facie case. WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
-C-14 - 
 
  ANNEX C -2 
SECOND PART OF THE E XECUTIVE SUMMARY OF THE ARGUMENTS OF NEW  ZEALAND  
INTRODUCTION  
1. The measures at issue in this dispute all stem from Indonesia's objective to restrict certain 
agricultural imports when domestic product is deemed sufficient to f ulfil domestic demand. 
New Zealand has demonstrated that they are all quantitative restrictions contrary to Article XI:1 of 
the GATT 1994 and Article 4.2 of the Agreement on Agriculture. The reference prices for beef, chili 
and shallots also constitute "mi nimum import prices … or similar border measures" within the 
meaning of footnote 1 to Article 4.2 of the Agreement on Agriculture.  
 
2. In response, Indonesia has challenged the existence or trade -restrictiveness of the 
measures at issue. It has pointed to Article XX of the GATT 1994 in an attempt to provide legal 
justification for the import restrictions. It has also emphasised recent changes to its regulations, 
which it contends have been made to address the concerns of the Complainants.1 However 
Indonesia 's new regulations have not materially changed Indonesia's import regime, as the core 
trade -restrictive measures at issue in this dispute remain in place.  
I. ALL OF THE MEASURES AT ISSUE ARE INCONSISTENT WITH ARTICLE  XI:1 OF 
THE GATT 1994 AND ARTICLE 4.2 O F THE AGREEMENT ON AGRICULTURE  
1 The obligations under Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement 
on Agriculture  
(a) Trade effects need not be demonstrated in order for a measure to be 
inconsistent with Article XI:1 or Article 4.2  
3. The Appellate Body has confirmed that the test for whether a measure constitutes a 
quantitative restriction is whether it has a "limiting effect" on importation.2 The Appellate Body has 
also made clear that, in determining whether a measure has a "limiting e ffect" on importation, it is 
not necessary to show an adverse impact on trade flows.3 
 
4. Indonesia's repeated assertions that, in order to demonstrate a breach of Article XI:1, a 
measure must impose an "absolute limit" on imports and that "a complainant i s [not] excused 
from demonstrating that the measure has some effect on trade",4 mischaracterise the relevant 
legal tests. A complainant need not quantify the effects of the measures at issue to make out a 
claim under Article XI:1. WTO jurisprudence is clea r that the limiting effect of a measure can be 
demonstrated through its design, architecture and structure.5 
 
5. The Complainants have demonstrated that Indonesia's regime is designed and structured in 
a manner which limits imports. While not a necessary p art of the legal test, the Complainants have 
also provided evidence of the actual trade effects of these measures to illustrate the practical 
commercial importance of this dispute to its agricultural exporters. This is demonstrated, for 
example, by the 84 percent decline in New  Zealand beef exports to Indonesia following the 
introduction of the measures of concern.6 
                                                
1 Indonesia's second written submission, paras. 7 and 8.  
2 Appellate Body Reports, China – Raw Materials , para. 319; and Argentina – Import Measures,  
para. 5.217.  
3 Appellate Body Report, Argentina – Import Measures,  para. 5.217.  
4 For example, Indonesia's second written submission, para. 24; and Indonesia's first written 
submission, paras. 54, 55, and 110.  
5 Appellate Body Report, Argentina – Import Measures,  para. 5.217.  
6 New Zealand's first writt en submission, para. 4.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- C-15 - 
 
  (b) The characterisation of a measure as "automatic" or "non -automatic" 
licensing is not relevant to the Panel's inquiry under Article XI:1 or 
Article 4.2  
6. Indonesia has asserted that its import licensing regimes "as a whole" constitute "automatic" 
import licensing procedures within the scope of the Agreement on Import Licensing Procedures 
(ILA). On the basis of this assertion, Indonesia then s ubmits that all the measures of concern are 
"excluded from the scope of Article 4.2 of the Agreement on Agriculture and Article  XI:1 of the 
GATT 1994".7 
 
7. However, with the exception of limited application windows and validity periods which are a 
quantit ative restriction as well as  a prohibited non -automatic licensing procedure, all of the other 
measures at issue in this dispute are not "administrative procedures used for the operation of 
import licensing regimes" within the scope of the ILA.  
 
8. In this regard, WTO jurisprudence is clear that the ILA distinguishes between import 
licensing procedures, which are the administrative procedures used to implement an import 
licensing regime, and the underlying substantive rules that may be administered through i mport 
licensing procedures.8 As New  Zealand has argued, the measures at issue in this dispute are 
underlying substantive rules which are inconsistent with Article XI:1 of the GATT 1994 and 
Article  4.2 of the Agreement on Agriculture because they are "prohi bitions or restrictions … made 
effective through … import … licences  or other measures".9  
 
9. Further, regardless of whether any of the measures at issue in this dispute constitute import 
licensing procedures, a measure is either consistent or not with Ar ticle XI:1 of the GATT  1994 and 
Article 4.2 of the Agreement on Agriculture according to the relevant legal standard under those 
provisions. Such an analysis cannot be conducted simply by assessing whether the licensing 
procedures used to implement the und erlying restrictions are characterised as "automatic" or 
"non-automatic". It is the nature of the measure that is determinative, not the particular label a 
respondent has attached to it.  
 
10. Accordingly, Indonesia's argument that its measures are all impo rt licensing procedures, and 
therefore exempt from the disciplines of Article XI:1 and Article 4.2, ignores the critical distinctions 
in the Complainants' claims and WTO jurisprudence.  
2 The measures at issue are inconsistent with Article XI:1 and Article 4.2 
11. As elaborated in New  Zealand's submissions,10 Indonesia has failed to provide any credible 
evidence or argumentation to rebut the case established by New  Zealand that the measures at 
issue are inconsistent with Article XI:1 of the GATT 1994 and Art icle 4.2 of the Agreement on 
Agriculture. New  Zealand does not repeat these arguments in this summary.  
II. THE MEASURES AT ISSUE ARE NOT JUSTIFIED UNDER ARTICLE XX OF THE 
GATT  1994  
1 The obligation under Article XX of the GATT 1994  
(a) Indonesia has the bu rden of proving that its measures are justified under 
Article XX  
12. Indonesia contends  that its measures fall within one or more of the general exceptions in 
Articles XX(a), (b) or (d) of the GATT 1994. Jurisprudence is clear that Indonesia has the burden  
of proving its Article XX defences.11 
 
13. In order to satisfy that burden, Indonesia must first demonstrate that a measure was 
adopted or enforced to protect or secure compliance with an objective identified in paragraphs (a), 
(b) or (d) of Article XX. T he measure must "address the particular interest specified in that 
                                                
7 Indonesia's second written submission, para. 67.  
8 Appellate Body Report, EC – Bananas III , para. 197; Panel Report, Korea – Various Measures on Beef , 
para. 784; Panel Report, EC – Poultry , para. 254.  
9 Article XI:1 of the GATT 19 94. 
10 See for example, New  Zealand's first written submission, Sections IV.A and IV.B and Sections III:A 
and III:B of New  Zealand's second written submission.  
11 See for example Appellate Body Report, EC – Seal Products , para 5.169.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
-C-16 - 
 
  paragraph" and there must be "a sufficient nexus between the measure and the interest 
protected".12 
 
14. Indonesia must then demonstrate that the measure is necessary for the achievement of  the 
particular objective. The standard of "necessity" is a high one, "located significantly closer to the 
pole of 'indispensable' than to the opposite pole of simply 'making a contribution to'".13 To be 
"necessary", there must be "a genuine relationship o f ends and means between the objective 
pursued and the measure at issue".14 
 
15. Appraisal under the chapeau to Article XX is also required. The burden again rests with the 
party invoking the exception to demonstrate that such a measure complies with the c hapeau.15 
(b) The relationship between Article XX of the GATT 1994 and Article 4.2 of 
the Agreement on Agriculture  
16. Indonesia raises a novel, but flawed, argument regarding the burden of proof under 
Article  XX of the GATT 1994. Indonesia accepts that Ar ticle XX is an exception to Article  XI:1 of the 
GATT 1994, and that ordinarily the burden is on the respondent to demonstrate that the exception 
applies. However, Indonesia contends that in the case of a claim of violation of Article  4.2 of the 
Agreement o n Agriculture, the Article XX burden of proof is reversed and falls on the Complainants 
to demonstrate the absence of such a defence.16 Indonesia seeks to turn the usual burden of proof 
in relation to Article XX on its head, contrary to the well -establishe d principle that the burden of 
identifying and establishing affirmative defences under Article XX rests on the party asserting that 
defence.17 However, there is no justification for shifting the normal burden of proof in this way. It 
would be contradictory  if the same provision were an exception to Article XI:1 and not an 
exception to the obligation under Article 4.2 of the Agreement on Agriculture. The character of the 
Article XX defences is as an exception and such character should be maintained. In any c ase, it is 
not necessary for the Panel to consider this argument if it commences its analysis of the measures 
at issue with Article XI:1 of the GATT 1994.  
2 Indonesia has failed to meet its burden under Article XX  
(a) Import licensing regime for animals a nd animal products  
(i) "Positive list" prohibition of certain imports  
17. Indonesia initially did not raise a defence under Article XX of the GATT 1994 in respect of 
the underlying prohibition of certain beef and offal imports implemented through its "posi tive list", 
which it initially denied existed.18 Instead, it only argued a defence under Article XX(b) in respect 
of the aspect of this measure that permits Ministers to exceptionally permit importation of bovine 
carcass and beef secondary cuts by state -owned enterprises (and only to the extent that certain 
emergency circumstances are deemed to exist). Indonesia claims this allows it to respond to a 
direct threat to the population caused by food scarcity.19  
 
18. However, even this limited Article XX(b) def ence does not make sense when considered in 
light of Indonesia's underlying import ban on all unlisted products. By prohibiting all imports of 
unlisted animals and animal products under ordinary circumstances, Indonesia itself has created 
the risk of food scarcity that this aspect of the measure is allegedly designed to address. If the 
underlying WTO -inconsistent positive list prohibition did not exist, then the emergency 
circumstances exception would not be required. Article  XX(b) cannot therefore be invok ed to 
justify the measure.  
 
                                                
12 Ibid. 
13 Appellate Body Report, Korea – Various Measures on Beef , paras. 161 -162 and 164.  
14 Appellate Body Report, EC – Seal Products , para. 5.180, citing Appellate Body Report, Brazil – 
Retreaded Tyres , paras. 145 -147, 
15 Appellate Body Report, US – Gasoline , pp. 22 -23. 
16 Indonesia's second written submission, para. 38.  
17 Appellate Body Report, US – Wool Shirts and Blouses , p. 16.  
18 Indonesia 's first written submission, paras. 96 -99; Indonesia 's first opening statement, para. 26.  
19 Indonesia's first written submission, para. 168.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- C-17 - 
 
  19. Subsequently, Indonesia conceded that certain beef and offal products are prohibited from 
importation, but argued that this was justified under Article XX(b).20 Indonesia offered very little 
elaboration of its Article XX(b)  positive -list defence, however, apart from a few passing references 
to concerns about hormone -treated beef.21  
 
20. In response, New  Zealand has emphasised that its bovine meat and offal products are safe. 
They are exported widely around the world to deve loped and developing countries, and are 
consumed domestically in New Zealand.22 No health issues have arisen warranting Indonesia's 
trade ban. Indonesia has presented no relevant evidence to the contrary and its exhibits do not 
support its reliance on Arti cle XX(b).23 
 
21. In particular, new Exhibits IDN -58, IDN -83, and IDN -84 do not explain why Indonesia bans 
the import of bovine offal and secondary cuts through the "positive list".24 Rather, those exhibits 
are, respectively, a blog expressing concerns abo ut hormones in milk and meat, a partisan 
summary of the EC –Hormones  dispute, and a promotional article from the Organic Consumers 
Association encouraging its members to purchase organic beef.25 
 
22. Furthermore, Indonesia's prohibition of certain beef and  offal imports bears no rational 
relationship to the alleged concerns about hormone -treated beef. This is clear from the fact that 
imports of some beef products are permitted.26 Yet there is again no reference to limits of imports 
of these products when th e beef has been treated with hormones. Surely if Indonesia intended to 
protect its population from purported risks arising from hormones, it would impose measures that 
applied universally to all hormone -treated beef products, rather than just certain bovin e offal and 
secondary cuts in certain circumstances. Finally, the positive list bans all unlisted products – not 
just hormone -treated beef. That is why New  Zealand beef and offal is prohibited, even if it is not 
treated with hormones. Furthermore, none of the evidence publicising this measure made any 
reference to hormones.27 For all these reasons, Indonesia's positive list restriction cannot be 
justified under Article XX(b).  
(ii) Limited application windows and validity periods for MOA 
Recommendations and Import Approvals  
23. Indonesia argues that Article XX(d) justifies its limited application windows and validity 
periods for MOA Recommendations and Import Approvals on the basis that these are a necessary 
element of its customs regime.28 
 
24. Indonesia cla ims that its limited application windows and validity periods measures are 
"mandated because the products at issue are products that spoil easily. As such, data would be 
more accurate if it is closer to the import date".29 However, the measures at issue re quire 
importers to provide information up to six months in advance of importation. If limited application 
windows and validity periods were removed, as New Zealand suggests should occur, Indonesia 
would be better placed to obtain more accurate data because  it would be obtained closer to the 
time of importation.  
 
25. Indonesia also acknowledges in its second written submission that its limited application 
windows apply only to certain animal products and only certain fresh horticultural products.30 
Indonesia 's inconsistent application of this measure suggests that avoiding food spoilage or data 
collection is not its true objective.  
                                                
20 Indonesia's second written submission, Section III.D.2(e), para. 206. Indonesia's responses to the 
Panel's questions after the second substantive meeting, Question 102, para 38.  
21 Indonesia's second written submission, paras. 110, 236.  
22 See, for example, "New  Zealand Export Statistics to Indonesia 2010 - 2015" Global Trade Atlas 
(Exhibit NZL -5) and Meat Industry Association Statement (Exhibit NZL -12). 
23 Huffington Post "Hormonal Milk and Meat: A Dangerous Public Health Risk" (Exhibit IDN -58); 
"Hormones in Meat" (Exhibit IDN -83); "Growth Hormones Fed to Beef Cattle Damage Human  Health" 
(Exhibit  IDN-84). 
24 See New Zealand's first written submission, paras. 40 -43. 
25 Indonesia's second written submission, paras. 110, 236.  
26 See New Zealand's  first written submission, para. 43.  
27 See the exhibits listed at footnote 66 of New Zealand's first written submission.  
28 Indonesia's second written submission, paras. 241 -242. 
29 Indonesia's second written submission, para. 242.  
30 Indonesia's second w ritten submission, paras. 57 and 58.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
-C-18 - 
 
   
26. Indeed, Indonesia has failed to demonstrate that customs enforcement is, in fact, the 
objective of its measure. Indonesia d oes not identify which specific parts of its customs 
enforcement laws and regulations are relevant. As the panel found in Colombia – Ports of Entry , 
general references to laws and regulations relating to customs enforcement would not satisfy the 
legal stan dard required in Article XX(d).31 
 
27. WTO jurisprudence confirms that the Panel is not bound by Indonesia's assertion of the 
objective of its measures. Rather, a panel should look at all relevant evidence, including the text, 
structure and legislative his tory of the measure at issue.32 Mere assertions concerning the purpose 
of a challenged measure are not sufficient to establish that it is designed to promote an objective 
in Article XX. In this instance, nothing in the sources referred to by Indonesia sugg ests the 
requisite connection between this measure and customs enforcement.33 
(iii) Fixed Licence Terms  
28. Indonesia argues that Article XX(d) applies in respect of the Fixed Licence Terms, however it 
has again failed to adequately demonstrate that custom s enforcement is the objective of that 
measure. Indonesia has done nothing more than list a few titles of laws and regulations relating to 
customs, quarantine and food safety. Thus, Indonesia has failed to identify the specific customs 
enforcement laws and  regulations it claims its restrictions are designed to secure compliance with.  
 
29. Indonesia contends that the purpose of the Fixed Licence Terms is to "oblige importers to 
include information such as port of entry, volume, etc. in order for the customs officials to assess 
customs classification and import eligibility" and to "gather information for statistical purposes".34 
However, Indonesia has failed to show that the measure is "necessary" to achieve that objective. 
Indeed, Indonesia could readily obta in better information from other sources, providing data on 
what importers actually import, rather than just what they apply to import. As New  Zealand has 
previously explained, there are existing processes used for information gathering purposes.  
(iv) 80% realisation requirement  
30. Indonesia's defence in respect of the 80% realisation requirement is based on Articles  XX(b) 
and XX(d).35  
 
31. With respect to Article XX(d) , Indonesia asserts its realisation requirement is necessary for 
customs enforcement as  it serves as a "safeguard against importers grossly overstating their 
anticipated imports".36 However, Indonesia has failed to identify the specific provisions of the "laws 
or regulations" with which the 80% realisation requirement is "necessary to secure  compliance" or 
that customs enforcement is the objective of the measure.  
 
32. Further, even if Indonesia were correct that importers would "overestimate" anticipated 
imports in the absence of the 80% realisation requirement, Indonesia ignores the fact tha t any 
such overestimation would only occur as a consequence of other restrictive and WTO -inconsistent 
aspects of Indonesia's import licensing regime – namely limited application windows and validity 
periods and Fixed Licence Terms.  
 
33. Furthermore, Indone sia has not demonstrated that the measure is necessary for the 
fulfilment of that objective. The trade -restrictiveness of the measure, inducing importers to limit 
the quantities they import rather than breach the 80% realisation requirement, outweighs any 
contribution it makes towards the objective in Article XX(d).  
 
                                                
31 Panel Report, Colombia Ports of Entry , paras. 7.516 -7.525.  
32 Appellate Body Report, EC – Seal Products , para. 5.144.  
33 See for example New  Zealand's second written submission, Section III.A(b)(iii); and New  Zealand 's 
second opening statement, paras. 62 - 63. 
34 Indonesia's second written submission, para. 243.  
35 Indonesia 's first written submission, para. 107, referring to paras. 78 -81; Indonesia 's responses to 
the Panel's questions after the first substantive meet ing, Question 16, para. 12.  
36 Indonesia 's first written submission, para. 79.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- C-19 - 
 
  34. Indonesia also appears to contend, in vague terms, that the 80% realisation requirement is 
justified  under Article XX(b) .37 Again, however, Indonesia has failed to show that the measure 
makes any contribution to its stated objective of protecting human life or health. Specifically, 
Indonesia has not provided any evidence demonstrating that "overstatement" of imports was 
occurring in the absence of the 80% realisation requirement. Nor has Ind onesia presented any 
evidence, or explained in any detail, why even if overstatement of imports did occur, that this 
would present a risk to human health.  
(v) Prohibitions and restrictions on the use, sale and distribution of imported 
animals and animal pr oducts  
35. Indonesia's defence in respect of the use, sale and distribution restrictions is based on 
Articles XX(a) and (b). Indonesia's arguments do not meet the standard required for a defence 
under either of these paragraphs.  
 
36. Indonesia's defence ba sed on Article XX(a)  is that the measure is necessary to protect 
public morals because it prevents consumers from "mistakenly purchasing animals or animal 
products that do not conform to Halal requirements".38 
 
37. However, New Zealand has demonstrated tha t all relevant animal products that are exported 
from New  Zealand to Indonesia are certified as halal. This requirement is reflected in both 
Indonesian and New Zealand law.  Indonesia has formally recognised that New Zealand's slaughter 
and meat processing practices comply  with Indonesia's halal requirements. Accordingly, the 
measures at issue do not contribute to the objective cited by Indonesia, as other mechanisms 
already ensure this objective is satisfied.  
 
38. This means that the trade -restrictiveness o f the measure easily outweighs the purpose 
Indonesia claims for it and cannot be regarded as "necessary" to protect public morals.  
 
39. Indonesia also claims, in respect  of Article XX(b) , that imported animals and animal 
products a re not permitted to be so ld in traditional Indonesian markets because of the dangers 
that arise from freezing and thawing meats.39 
 
40. However, Indonesia has produced no relevant evidence that protecting human health was 
the reason for Indonesia's restrictions on sales of importe d meat in traditional markets, or that 
imported meat sold in traditional markets poses a greater risk to human heal th than 
locally -slaughtered meat. Indeed, Indonesia's own Exhibit IDN -79 shows that frozen meat is safe 
provided it was safe when frozen. When thawed, microbes will become active and multiply, but at 
the same rate as in fresh meat.40 
 
41. Furthermore, Exhibit IDN -57 produced in support of Indonesia's defence of its measure, 
titled "The effect of Freezing and Thawing on Technological Properties of Meat" relates to food 
quality not food safety.41 Indonesia's repeated arguments based on "meat quality and texture"42 
are not only unsubstantiated but also irrelevant to an Article XX(b) defence.  
 
42. Finally, Indonesia has not provided any evidence tha t it prevents domestically produced 
frozen meat from being sold in traditional markets.  In fact, there is evidence before the Panel that 
Indonesian state -owned purchasing company BULOG has itself distributed frozen meat to 
traditional markets in Jakarta in  an effort to lower the price of beef.  
                                                
37 Indonesia 's responses to the Panel's questions after the first substant ive meeting, Question 16, 
para. 11-12. 
38 Indonesia's first written submission, para. 166.  
39 Indonesia 's second written submission, para. 110.  
40 "Rules of Thawing and Refreezing Meat" (Exhibit IDN -79). 
41 Corina Gambuteanu, Daniela Borda and Petru Alexe, "The Effect of Freezing and Thawing on 
Technological Properties of Meat: Review" (Exhibit IDN -57). 
42 Indonesia's second written submission, paras. 109 ("establish quality… requirements"), 11 0, 193 
and 225. WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
-C-20 - 
 
  (vi) Domestic Purchase Requirement  
43. Indonesia has made little effort to demonstrate that its Domestic Purchase Requirement was 
adopted to protect the objectives identified in Article XX(b). There is nothing in the design or 
structure of the measure indicating that was the measure's purpose. Rather, the measure itself 
seems to have been designed as an additional form of protection for domestic beef producers from 
competition from imported beef.  
 
44. This objective do es not correspond with the protection of human life or health in terms of 
Article XX(b). If it did, Members could simply prohibit imports on the basis that doing so was 
necessary to stimulate local production.  
(vii) Beef reference price  
45. Indonesia has a lso failed to produce any credible evidence showing its reference price 
requirements contribute to the protection of human, animal or plant life or health under 
Article  XX(b). The design and structure of this measure does not indicate that it is necessary to 
protect Indonesian citizens from public health threats.43 
 
46. Indonesia has produced neither any evidence of any oversupply of these products, nor of 
any prospect of "immediate crisis" or "immediate threats to the Indonesia food supply",44 including 
in the exhibit Indonesia produced on its "food security plan".45 To the contrary, Indonesia's 
answers to questions from the Panel, and its exhibits, point to chronic undersupply of food, with 
persistent threats of food insecurity and under -nutrition in Indon esia's poorer communities, as 
demonstrated by chronic malnutrition.46 The evidence shows instead that Indonesia needs 
additional safe, high -quality, protein, as explained by the strong growth in New Zealand beef and 
beef offal exports to Indonesia in the f irst decade of this millennium before the measures at issue 
were introduced.47 
(b) Import licensing regime for horticultural products  
47. Indonesia's argumentation under Article XX in respect of limited application windows and 
validity periods, Fixed Licen ce Terms, the 80% realisation requirement and reference prices is 
substantially the same for both animals and animal products, and horticultural products. 
New Zealand has addressed each of these arguments in detail in its second written submission, 
and sho wn that Indonesia has not demonstrated that these measures are justified under 
Article  XX.48 This section therefore focusses on the measures that are specific to horticultural 
products, namely: prohibitions and restrictions based on Indonesian harvest peri ods, storage 
ownership and capacity requirements, prohibitions and restrictions on use, sale and distribution of 
imported products and the six -month harvesting requirement.  
(i) Prohibitions and restrictions based on Indonesian harvest periods  
48. Indonesia  claims that its prohibitions and restrictions based on harvest periods are justified 
under Article XX(b) on the basis that oversupply of horticultural products during harvest periods 
could constitute a public health threat.  
 
49. However, Indonesia has not  demonstrated that public health is the objective of its measure. 
Nothing about the design or structure of the measure indicates that it was adopted or enforced to 
protect human health. Indonesia has produced no evidence that "stockpiles of rotting horticu ltural 
                                                
43 Compare Indonesia's second written submission, para. 240.  
44 Indonesia's responses to the Panel's questions after the first substan tive meeting, Que stion 18, 
para. 20. 
45 Ministry of Agriculture, "Agency for Food Security, 'at a Glance'" (Exhibit IDN -25). And see also 
Indonesia's responses to the Panel's questions after the first substantive meeting, Questions 17, 18, 27.  
46 Indonesia's responses to t he Panel's questions after the first substantive meeting, Question 18, 
para. 19. See also "Indonesia Retail Report Update 2013 by Global Agricultural Information" (Exhibit IDN -78); 
"The Indonesian Consumer Behaviour, Attitudes and Perceptions Toward Food" (Exhibit IDN -51) at p. 14; 
"Rural Poverty in Indonesia", Rural Poverty Portal (Exhibit IDN -4). 
47 See e.g. Meat Industry Association (New Zealand), Statement in relation to Indonesia's beef import 
restrictions, 11 November 2015 (Exhibit NZL -12). 
48 See for  example New  Zealand's second written submission, Sections III.B(a)(iii), III.B(b)(iii) and 
III.B(c)(iii). See also, the summary of these measures in the context of animals and animal products in 
Sections I.2(a)(i) - I.2(a) (iii) of this Second Executive S ummary.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  products" have resulted, or would result, from imports during domestic harvest seasons or that 
this was the reason for the measure's introduction. Rather, the evidence presented by 
New Zealand suggests that the real reason for the measure is to prot ect domestic farmers from 
import competition.  
 
50. Indonesia has also failed to demonstrate that the measure is "necessary" to protect human 
health. Indonesia has not established that the measure contributes to that objective at all, let 
alone that it make s a material contribution to that objective as is required when a measure 
produces restrictive effects on international trade as severe as those resulting from an import ban.  
(ii) Storage ownership and capacity requirement  
51. Indonesia contends that its storage ownership and capacity requirement is justified under 
Articles XX(a), (b) and (d).  
 
52. In relation to  Article XX(a) , New  Zealand's challenge to Indonesia's storage ownership and 
capacity requirement is confined to horticultural products (which are  inherently halal). Thus, 
Indonesia's public morals arguments under Article XX(a) is without substance and should be 
rejected.  
 
53. In relation to Article XX(d)  and Article XX(b) , Indonesia's attempts to justify its 
ownership and storage capacity requireme nts for horticultural products do not address the claims 
made by New  Zealand. Specifically, New Zealand's challenge relates exclusively to the 
requirements that importers own storage facilities with capacity equalling the quantity of product 
imported over a six-month period in a one-to-one ratio . 
 
54. None of Indonesia's evidence or argumentation supports the need for a requirement that 
importers own their storage. There is no reason why "ownership" as opposed to leasing of storage 
facilities shows a greate r "commitment" to provide food that is safe for consumption or would 
facilitate customs enforcement. Nor is it clear why there is no allowance for product turnover 
during a validity period. Keeping storage facilities empty for several months after the prod ucts in 
them have been sold, but before the next validity period, makes no contribution to the objectives 
in Articles XX(b) and XX(d).  
(iii) Prohibitions and restrictions on use, sale and distribution of imported 
horticultural products  
55. Indonesia's defe nce to its measure restricting the use, sale and distribution of imported 
horticultural products is based on Articles XX(a), (b) and (d).  
 
56. In relation to Article XX(a) , Indonesia argues that this measure is necessary to protect 
public morals by aiming to ensure that non -halal foods are kept out of traditional Indonesian 
markets.49 However, there is no reference to halal in the relevant legal instruments through which 
the measure is implemented and Indonesia has produced no evidence of halal certificatio n 
requirements for imported horticultural products. Indonesia has not explained why the measures 
are "necessary to protect public morals" or demonstrated that the objective of the measure is to 
protect public morals or the religious beliefs of the Indonesi an people.  
 
57. In relation to Article XX(d) , Indonesia has not demonstrated that the restrictions on use, 
sale and distribution have the objective of ensuring compliance with food safety requirements. 
Indonesia has not provided any specificity either on the laws and regulations with which this 
measure is designed to ensure compliance, or on the specific provisions of those laws and 
regulations.  
 
58. Indonesia has also failed to demonstrate that the restrictions have the objective of 
protecting human heal th under Article XX(b) . There is no evidence from the text of the 
regulations or their operation that the restrictions have the objective of protecting human health. 
Nor is there evidence that the requirements would reduce the spread of pathogens into the food 
supply of the general public and thereby contribute to the objective of human health. The 
requirements add an extra distribution layer for fresh horticultural products imported for 
consumption. This would seem to add to the difficulties of tracking pa thogens in the food supply.  
                                                
49 Indonesia 's first written submission, para. 187.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  (iv) Six month since harvesting requirement  
59. Indonesia claims, based on Article XX(b) of the GATT 1994, that the purpose of its six month 
harvesting requirement for fresh horticultural products is to ensure that horticultural  products are 
fresh, nutritious, chemical and preservative -free, safe and of good quality.50 However, this 
measure cannot be "necessary" for the achievement of that objective as it makes no distinction 
based on factors such as the storage life of particula r horticultural products, many of which have a 
storage life greater than six months. For example, as acknowledged by Indonesia in its first 
written submission,51 apples and pears can be stored for longer than six months under controlled 
atmosphere conditio ns that use low oxygen and high carbon dioxide levels to slow down 
respiration.52 Onions too have a storage life greater than six months.53 Moreover, New  Zealand 
does not accept that the purpose of the six month harvesting requirements is to protect agains t 
"hazardous chemicals" as these are regulated separately by way of Indonesian regulations that are 
not at issue in this dispute.54 
(c) Import licensing regimes as a whole  
60. Indonesia has also sought to justify its import licensing regime for animals and  animal 
products "as a whole" and its import licensing regime for horticultural products "as a whole" under 
Articles XX(a), (b) and (d) of the GATT 1994.  
 
61. In relation to Article XX(a) , Indonesia states, in very general terms, that each of its import 
licensing regimes as a whole "fall under the scope of public morals".  
 
62. In seeking to justify its regime Indonesia has merely referred to five overarching laws and 
then concluded, without any further elaboration, that its import licensing regime as a whol e is 
required to protect public morals. However, it is not enough for Indonesia to argue that some 
aspects of the overarching laws pursuant to which its regulations are implemented may touch on 
matters concerning public morals. To sustain an Article XX(a) defence, Indonesia must show that 
each specific measure identified by the Complainants has an underlying public morals objective as 
evidenced by its design, architecture and revealing structure. It has not done so.  
 
63. Furthermore, New  Zealand has describ ed the comprehensive arrangements that are in place 
to ensure that all relevant animal product exports to Indonesia are halal.55 These arrangements 
remove the risk of Indonesians mistakenly purchasing non -halal animal products. Further, 
Article  XX(a) does not justify Indonesia's restrictions on imports of horticultural products. 
Indonesia's own submissions, exhibits and laws imply that horticultural products are inherently 
halal. Thus, Indonesia's measures at issue do not contribute to the objective of publ ic morals.  
 
64. In respect of Article XX(b) , Indonesia refers to the Food Law  and by implication concludes 
that its entire import licensing regime "falls within the range [of] policies designed to protect 
human, animal or plant life [or] health".56 
 
65. However, just because one of the objectives set out in the Food Law  relates to food safety 
does not demonstrate that each specific measure at issue in this dispute has a food safety 
objective. As the Appellate Body stated in EC – Seal Products , there must al so be "a sufficient 
nexus between the measure and the interest protected". Indonesia must therefore prove that an 
objective of each discrete trade restriction at issue in this dispute is the protection of life or health. 
A mere reference to the Food Law does not establish this nexus at a sufficient level of granularity.  
 
66. Indonesia also frequently conflates the concepts of food safety and "food security".57 It is 
questionable whether the objective of "food security", as used by Indonesia, would fall unde r the 
                                                
50 Indonesia's second written submission, para. 110.  
51 Indonesia's first written submission, para. 150.  
52 Dianne M. Barrett, "Maximizing the Nutritional Value of Fruits & Vegetables 
<http://www. fruitandvegetable.ucdavis.edu/files/197179.pdf, p. 40 -41 (Exhibit IDN -54). 
53 Kitinoja, Lisa, and Adel Kader, "Section 7: Storage of Horticultural Crops" FAO Corporate Document 
Repository, Agriculture and Consumer Protection (Exhibit IDN -73). 
54 New Zealan d's second opening statement, para. 84.  
55 New Zealand's second written submission, paras, 115 -117; New Zealand's first opening statement, 
paras.  45-51.  
56 Indonesia's second written submission, paras. 105 -124. 
57 See, e.g. Indonesia's second written subm ission, paras. 123, 207(b), section III.D.2  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  Article XX(b) exception. For Indonesia, "food security" appears to equate to protecting local 
producers rather than ensuring people have safe food.  
 
67. Furthermore, Indonesia has not explained how the measures at issue contribute to the 
objectives o f food security, even if it was relevant. To the contrary, Indonesia's import -limiting 
measures appear to have had the effect of exacerbating food shortages, driving up prices and 
causing flow -on effects on nutrition.  
 
68. In respect of Article XX(d) , Indo nesia argues its import licensing regimes as a whole are 
designed to secure compliance with customs laws and regulations.  
 
69. Indonesia's lack of specificity in its Article XX(d) defence is problematic. Indonesia has 
provided a list of titles of laws rela ting to customs, quarantine and food safety that it said are 
included among "[t]he WTO -consistent laws and regulations" providing the justification for its 
various measures.58 However, it has not provided most of those legal instruments as exhibits or 
identified which specific provisions of them are relevant. This lack of specificity makes it 
challenging for the Complainants to respond to Indonesia's vague Article XX(d) defence.  
 
70. For instance, Indonesia has noted that some of its agriculture and trade r egulations contain 
references to the Customs Law . However, this alone is insufficient to demonstrate that each 
specific trade -restrictive measure before this Panel is designed to secure compliance with the 
Customs Law . Even if they were aimed at this objec tive, there are far less trade -restrictive ways 
by which Indonesia could gather data relating to imports for statistical purposes. Many of these 
mechanisms already exist independently in Indonesia. Thus,  Indonesia has provided no credible 
reason why its me asures, that have a limiting effect on importation, are necessary.  
(d) Import restrictions based on "sufficiency" of domestic production  
71. Indonesia asserts that restrictions based on "sufficiency" of domestic production are justified 
under Article XX(b) .59 However, Indonesia has provided no argumentation or evidence to 
demonstrate that the protection of human, animal or plant life or health is an objective pursued by 
the measure, nor has it demonstrated that the measure is "necessary" for the achievement  of that 
objective. Indeed, New Zealand has shown that the true objective of the domestic insufficiency 
condition is to limit imports when domestic production is deemed sufficient to meet domestic 
demand.  
3 Indonesia has not demonstrated that any of its me asures comply with the chapeau to 
Article XX  
72. As Indonesia has failed to provisionally justify its measures in terms of the paragraphs of 
Article XX, the Article XX chapeau is not reached. In any event, Indonesia has also failed to show 
that its measur es are applied consistently with the chapeau.  
 
73. In its second written submission, Indonesia argues, based on the first element of the 
chapeau, that its measures are not applied in a manner which would constitute a means of 
arbitrary or unjustifiable dis crimination between countries where the same conditions prevail.60 
 
74. This argument should be rejected. The Appellate Body has confirmed that one of the most 
important factors in the assessment of arbitrary or unjustifiable discrimination is whether the 
discrimination can be reconciled with, or is rationally related to, the policy objective with which the 
measure has been provisionally justified under the paragraphs of Article XX. Indonesia has failed 
to show that any of its measures can be reconciled wit h or is rationally connected to the policy 
objectives in Article XX.  
 
75. Indonesia also argues that, because its measures are not hidden but are "publicly 
announced", they are not disguised restrictions on trade.61 This argument, based on the second 
eleme nt of the chapeau to Article XX, should also be dismissed. The Appellate Body has held that a 
"concealed  or unannounced  restriction or discrimination in international trade does not exhaust the 
meaning of 'disguised restriction'" under the chapeau. Rather,  in US – Gasoline the Appellate Body 
                                                
58 Indonesia's additional responses to the Panel's questions after the first substantive meeting, para. 46.   
59 Indonesia 's first written submission, para. 161.  
60 Indonesia's second written submission, paras. 14 8. 
61 Indonesia's second written su bmission, paras. 157 and 250.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  confirmed that "'disguised restriction', whatever else it covers, may properly be read as embracing 
restrictions… taken under the guise of a measure formally within the terms of an exception listed 
in Article XX".62 This broader reading of "disguised restriction" is consistent with the purpose of 
"avoiding abuse or illegitimate use of the exceptions to substantive rules available in Article  XX". 
Accordingly, as New Zealand has demonstrated, Indonesia's measures are "disg uised restrictions".  
III. THE MEASURES AT ISSUE ARE NOT JUSTIFIED UNDER ARTICLE  XI:2(C) OF THE 
GATT 1994  
76. In its second written submission, Indonesia raised an entirely new defence under 
Article  XI:2(c)(ii) of the GATT 1994 in respect of its reference p rice restrictions for beef, chili and 
shallots, and the domestic harvest season restrictions for horticultural products.63 
 
77. However, the availability of Article XI:2(c)(ii) as a defence to Article XI:1 of the GATT 1994 
has been removed with respect to agricultural products following the entry into force of the 
Agreement on Agriculture. Footnote 1 to Article 4.2 of the Agreement on Agriculture sets out an 
illustrative list of measures that have been required to be converted into ordinary customs duties, 
except for measures maintained "under other general, non -agriculture -specific provisions of the 
GATT 1994". Article XI:2(c) is an exception for certain "import restrictions on any agricultural or 
fisheries product". Therefore in respect of agricultural pro ducts, Article XI:2(c) is not a "general, 
non-agriculture -specific provision" of the GATT 1994. Thus it cannot be an exception to measures 
which have been required to be converted to ordinary customs duties under Article 4.2, including 
quantitative restric tions.  
 
78. In any case, even if it were available as a defence, Indonesia has failed to satisfy its burden 
of establishing that the measures meet the legal requirements of Article XI:2(c)(ii).  
IV. LIMITED APPLICATION WINDOWS AND VALIDITY PERIODS ARE INCON SISTENT 
WITH THE AGREEMENT ON IMPORT LICENSING PROCEDURES  
79. Limited application windows and validity periods are the only measures which New  Zealand 
has argued are inconsistent with the ILA, as they are the only measures that constitute 
"administrative p rocedures" within the scope of that Agreement. To the extent that the Panel finds 
that such measures fall within the scope of the disciplines of Article 3 of the ILA, they are 
inconsistent with Article 3.2 of that Agreement.  
 
80. New Zealand has demonstrat ed that limited application windows and validity periods do not 
constitute "automatic" licensing procedures under Article 2.1 of the ILA. This is because, inter alia, 
they do not allow for applications to be "submitted on any working day prior to customs c learance" 
as required by Article 2.2(a)(ii) of the ILA. Accordingly, the measures constitute non -automatic 
licensing procedures under Article 3.1 of the ILA.  
 
81. New Zealand has demonstrated that limited application windows and validity periods are 
incons istent with Article 3.2 of the ILA, because they have unnecessary trade -restrictive effects on 
imports. In particular, limited application windows and validity periods cause declines in imports at 
the start of each quarter due to the delay between import l icences being issued and imports being 
certified and shipped to Indonesia and at the end of each quarter due to the risk of re -export.64 
 
82. Indonesia contends that limited application windows and validity periods cannot be 
prohibited by Article 3.2 of th e ILA and argues that in order to give effect to Article 1.6, 
Article  2.2(a)(ii) of the ILA must be read in a way whereby "applications for licenses [need not] be 
submitted on any working day".65 However, Indonesia's novel interpretation of Article 2.2(a)( ii) 
takes Article 1.6 out of context and is not supported by the words in Article 2.2. Indeed it would, 
in fact, rob all meaning from that provision.  
                                                
62 Appellate Body Report, US – Gasoline , p. 25.  
63 Indonesia's second written submission, Section III.E.  
64 See for example, New  Zealand's first oral statement, Figure 8.  
65 Indonesia's secon d written submission, para. 65.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  V. CERTAIN MEASURES AT ISSUE ARE INCONSISTENT WITH ARTICLE  III:4 OF THE 
GATT 1994  
83. New Zealand has demo nstrated that three measures: use, sale and distribution restrictions 
on bovine meat, carcass and offal; use, sale and distribution restrictions on horticultural products; 
and the Domestic Purchase Requirement for beef; are inconsistent with Article III:4 of the 
GATT  1994.  
(a) Use, sale and distribution restrictions for bovine meat, carcass and offal  
84. Indonesia has not rebutted the case made by New Zealand that the prohibitions on the use, 
sale and distribution of imported bovine meat, carcass and offal are inconsistent with Article  III:4 
of the GATT 1994.  
 
85. Indonesia asserts that its "end use limitations for animal products – specifically, the 
restriction on sales of imported meat products in traditional Indonesian markets – applies 
uniformly to impor ts and domestic products".66 However, Indonesia's assertion is unsupported by 
evidence, and is factually incorrect. Furthermore, Indonesia fails to address the prohibition on 
imports of bovine meat and offal products for sale in "modern markets" (such as s upermarkets).  
 
86. Accordingly, by prohibiting the sale of imported beef, carcass and offal in modern and 
traditional markets, in circumstances where no comparable restrictions are applied to 
domestically -produced beef, carcass and offal, Indonesia's meas ure is inconsistent with 
Article  III:4 of the GATT 1994. Furthermore, Indonesia has failed to discharge its burden of 
proving that an Article XX exception applies to the measure.  
(b) Use, sale and distribution restrictions for horticultural products  
87. Indonesia does not appear to contest that the restrictions on the use, sale and distribution of 
imported horticultural products fall within the scope of Article III:4 of the GATT 1994.67 Rather it 
seeks to rely on defences under Articles XX(a) and XX(b). How ever, Indonesia has not 
demonstrated that the use, sale and distribution restrictions have the objective either of protecting 
public morals or religious beliefs, or of protecting human health, let alone are "necessary" to 
achieve these objectives.  
(c) Dome stic purchase requirement  
88. Indonesia claims that the Domestic Purchase Requirement is not inconsistent with 
Article  III:4 of the GATT 1994 because it "has never been used to prevent the issuance of an 
import license". Irrespective of whether the Domesti c Purchase Requirement has been explicitly 
referred to as the basis to reject a request for an import licence, it accords less favourable 
treatment to imports over domestic products. Indeed, a measure that is in force but has not yet 
been enforced may stil l be challenged as being inconsistent with a Member's obligations.  
CONCLUSION  
89. Throughout its submissions, Indonesia has argued that its regime does not "restrict or limit" 
imports and that importers "can import as much as they like".68 However, as the  Complainants 
have demonstrated, Indonesia does prevent importers from importing as much as they like. In 
reality, imports are restricted because, among other things:  
a. importers are prohibited from importing certain products (such as bovine offal and 
secondary cuts);  
b. for permitted products, importers cannot import more than the quantity specified in their 
Import Approval per validity period;  
c. importers are prohibited from importing different products, into different ports or from 
different countries of origin per validity period;  
d. importers must be conservative in estimating the quantity of products that they request 
per validity period, or risk having their ability to import revoked;  
                                                
66 Indonesia's first written submission, para. 188.  
67 Indonesia's first written submission, para. 187.  
68 See Indonesia's second written submission, paras. 29, 180, 186, 190, 238.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  e. importers are prevented from importing certain products during  the domestic harvest 
season, or when the domestic price is above a certain level, or when harvested earlier 
than a certain period before importation;  
f. importers cannot import certain products for the purpose of sale to consumers through 
modern or tradit ional markets;  
g. horticultural importers cannot import more than their owned storage capacity in any 
six-month period; and  
h. importers must satisfy a domestic purchase requirement in order to import beef.  
90. For all of these reasons, and those set out i n the Complainants' submissions, Indonesia's 
measures are inconsistent with its WTO obligations.  
 WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  ANNEX C-3 
FIRST PART OF THE EX ECUTIVE SUMMARY OF T HE ARGUMENTS OF THE UNITED STATES  
EXECUTIVE SUMMARY OF  U.S. FIRST WRITTEN S UBMISSION  
1. Indonesia imposes n umerous prohibitions and restrictions on imports through laws and 
regulations governing the importation of horticultural  products  and of animals and animal 
products , and, in particular, through its import licensing regimes for those products.  In addition, 
Indonesia prohibits  the importation of all horticultural products and animals and animal products 
when the government deems domestic production of such products sufficient to satisfy domestic 
demand.  These prohibitions and restrictions are flatly contrary to WTO rules, and the resulting 
trade distortions not only affect foreign suppliers and Indonesian importers, but raise costs and 
reduce choices for Indonesian consumers.  
I. FACTUAL BACKGROUND  
2. Indonesia pursues a policy of "self -sufficiency" in food.  The goal of this policy is to increase 
reliance on domestic producers by "gradually reduc[ing]" and ultimately halting imports of 
agricultural products.  To further this goal, Indonesia has deliberately and systematically restricted 
imports of agricultural pr oducts in order to protect domestic producers.  Indonesia has done so by 
imposing regimes of complicated, burdensome, and non -market -oriented import licensing 
requirements on horticultural products and animals and animal products.   
A. Indonesia's Laws and R egulations Governing the Importation of Horticultural 
Products  
3. In 2010, Indonesia passed Law 13 Concerning Horticulture, which established the framework 
for Indonesia's policy to protect domestic producers from competition from imported products.  
Indon esia reinforces this policy through Law 18/2012 Concerning Food ("Food Law") and Law 
19/2013 Concerning the Protection and Empowerment of Farmers ("Farmers' Law").  Indonesia 
implements this policy through its import licensing regulations.  Under the current  regime, 
importers of the thirty -nine covered horticultural products must receive the following approvals:  
(1) designation either as a RI or PI from the Ministry of Trade; (2) an RIPH from the Ministry of 
Agriculture; and (3) for RIs, an Import Approval fr om the Ministry of Trade.  
4. Application Windows and Validity Periods  of Required Import Documents . Importation of 
horticultural products is divided into two semesters – January to June and July to December.  For 
the first semester, RIs must obtain RIPHs i n November and Import Approvals in December; for the 
second, RIs must obtain the RIPHs in May and Import Approvals in June.  Import Approvals are 
issued "at the beginning of the semester" and are valid only for that semester.  Products imported 
during a seme ster cannot be shipped from their country of origin until after the Import Approvals 
are issued, and they must arrive in Indonesia and clear customs before the semester's end.  
Indonesia will destroy or re -export horticultural products if they fail to clear  customs before their 
Import Approval expires.  The application windows, validity periods, and requirement that products 
be shipped and clear customs within a semester, effectively preclude imports of horticultural 
products during the beginning and end each  of semester.   
5. Fixed License Terms . When applying for an RIPH, an importer must indicate the type, 
country of origin, and the port of entry of the products it seeks to import.  Once issued, the 
importers cannot amend the RIPH within the import period, an d they are prohibited from importing 
products other than those specified on their RIPHs.  RIs must also obtain an Import Approval.  The 
validity periods of Import Approvals correspond to those of RIPHs.  The Ministry of Trade issues 
Import Approvals twice a y ear, and RIs can apply for Import Approvals only during the month prior 
to the start of a period.  Once Import Approvals are issued, RIs may not amend them or apply for 
another Import Approval until the next period.  Thus, upon issuance, Import Approvals loc k in the 
type, quantity, country of origin, and port of entry of the horticultural products allowed to be 
imported during the next semester.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
-C-28 - 
 
  6. Import Realization Requirement . For each semester, RIs are  required to import at least 
80 percent of the quantit y specified for each type of horticultural product listed on their Import 
Approval.  RIs must report its realized imports during the semester by submitting an Import 
Realization Control Card every month to the Ministry of Trade.  The Ministry of Trade sancti ons RIs 
that fail to meet the 80 percent realization requirement or fail to file the Import Realization Control 
Card.  The realization requirement compels RIs to lower the quantities they request in their Import 
Approval applications in order to avoid situa tions in which they either must import products at a 
loss to reach 80 percent or have their RI designation suspended.   
7. Harvest Period Restrictions . Indonesia limits the importation of horticultural products based 
on the domestic harvest season.  MOA 86/2 013 provides that horticultural products "are imported 
outside of the pre -harvest, harvest, and post -harvest periods" and grants the Minister of 
Agriculture the authority to decree the time period when importation is permitted.  The Ministry 
implements this  limitation through the RIPH process.  RIs must submit a plan as to when and 
where they will distribute imports for the semester.  The Ministry checks this against Indonesia's 
harvest seasons for the same products, and it bans or limits importation of hortic ultural products 
during the harvest season of those products through the RIPH approval process.  
8. Storage Capacity Requirement . Indonesia limits the quantity of imported horticultural 
products by requiring RIs to prove that they own storage facilities wit h sufficient capacity to hold 
the quantity requested on their Import Approval application.  Specifically, the Ministry of Trade 
limits the quantity specified on an RI's Import Approval to the total cold storage capacity of the 
RI's facility at the ratio of one to one.  This means the quantity specified on the Import Approval 
does not account for inventory turnover during the six -month semester.   
9. Use, Sale, and Transfer Requirements . Indonesia limits importation of covered horticultural 
products based on th eir use, sale, and transfer.  MOT 16/2013 stipulates that an RI can only "trade 
and/or transfer imported Horticultural Products to a Distributor" and not "directly to consumers or 
retailers."  Similarly, PIs can only "import Horticultural Products as raw mat erials or as 
supplementary materials for the needs of its industrial production process."  They are prohibited 
from "trading and/or transferring these Horticultural Products."  
10. Reference Price Requirement for Chilies and Shallots . Indonesia prohibits the  importation of 
chilies and fresh shallots when their market prices fall below the "Reference Prices" set by the 
Ministry of Trade.  MOT 16/2013 stipulates that importation of chilies and fresh shallots must 
"observe" the Reference Prices for those products . If the market prices of chilies or fresh shallots 
fall below their respective Reference Prices, the regulation requires that their importation be 
"postponed until the market price again reaches the Reference Price."  
11. Six Month Requirement . Indonesia p rohibits the importation of fresh horticultural products 
harvested more than six month previously.  To obtain the RIPH, MOA 86/2013 requires RIs to 
submit a statement that they will not import any products that were harvested more than six 
months previously . If the applying RI fails to include such statement as part of its RIPH 
application, the Ministry of Agriculture will declare the application incomplete and reject it.  
B. Indonesia's Laws and Regulations Governing the Importation of Animals and 
Animal Pro ducts  
12. In 2009, Indonesia enacted Law Number 18 on Animal Husbandry and Animal Health, 
establishing that "[i]mport of animals or cattle and animal products . . . shall be done if local 
production. . . is not sufficient to fulfill consumption needs."  The Food Law and the Farmer's Law 
reinforce this policy.  Indonesia has pursued this goal through its regime for the importation of 
these products.  Under this regime, importers of the bovine products listed in Appendix I of MOT 
46/2013 and MOA 139/2014 must ob tain (1) designation as a registered importer ("RI") from the 
Ministry of Trade, (2) a Recommendation from the Ministry of Agriculture, and (3) an Import 
Approval from the Minister of Trade.  Importers of the non -bovine products listed in Appendix II 
must o btain: (1) a Recommendation, and (2) an Import Approval.  
13. Positive List . Indonesia allows the importation of only the animals and animal products listed 
in the appendices to the relevant regulations.  Unlisted animals and animal products are banned.  
Article 2 of MOT 46/2013 states explicitly that "the types of Animals and Animal Products that can WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- C-29 - 
 
  be imported are included in Appendix I and Appendix II."  The titles of MOT 46/2013 Appendix I 
and Appendix II confirm this rule.  Similarly, Article 8 of MOA 139/ 2014 states that the bovine 
meats and the non -bovine carcasses, meats, and processed products "that can be imported" are 
listed in Appendices I and II.  Further, because both a Recommendation and an Import Approval 
are required for importation, for products  falling within the scope of MOA 139/2014, the product 
must be listed in the appendices of both regulations for importation of that product to be 
permitted.   
14. Application Windows and Validity Periods . Import Approvals are valid for one three month 
period, and they are issued on a date "at the beginning" of each period.  Imports must be shipped, 
arrive, and clear customs during the period for which the Import Approval is valid.  Specifically, 
each Import Approval specifies that the "number and date" of the importer's Import Approval must 
be written on the Certificate of Health issued by the product's country of origin.  This means that 
the Certificate of Health cannot  be issued , and thus the goods cannot ship , until after the Import 
Approvals for that period have been issued.  And imports must clear customs in Jakarta before the 
end of the period for which the Import Approval is valid or they will be re -exported.  As a result, 
during each validity period, exporters cannot start shipping until after a validity pe riod begins and 
must stop shipping long enough before the period's end for their goods to arrive in Indonesia and 
clear customs by the last day.  
15. Fixed License Terms . During each validity period, importers are not permitted to import 
animal products ot her than those specified on their Recommendations and Import Approvals.  
Under MOA 139/2014, as amended, importers are "prohibited from importing types/categories of 
carcasses, meat, and/or their processed products other than what is included in their 
Recom mendation."  They are also prohibited from requesting changes to the elements specified on 
their Recommendations.  Under Article 30 of MOT 46/2013, imports "whose quantity, type, 
business unit, and/or country or origin is not in accordance with their Import Approval . . . will be 
re-exported," with the cost being borne by the importer.  Importers who do not comply with MOT 
46/2013 are subject to sanction.  Consequently, importers are required to predict in advance 
precisely the products that they will want to i mport during the subsequent three -month import 
period, and they are unable to make any adjustments once the period begins.  
16. Realization Requirement . Under MOT 46/2013, RI designees (i.e., importers of cattle and 
bovine products) are required to import " at least 80%" of the products covered by their Import 
Approvals for each year.  To implement this requirement, RI designees are required to submit 
monthly "Import and Export Realization Reports." An RI designee that does not fulfill the 80% 
realization requ irement, or does not file the import realization report three times, has its RI 
designation suspended.  If an importer does not fulfill the realization obligation twice, its RI 
designation is revoked, and it cannot reapply for at least two years.  This requi rement gives 
importers a powerful incentive to ensure that they do not apply for import approvals for greater 
quantities of products than they are certain  they can actually import.   
17. End-Use Requirements . MOT 46/2013 states that importation of Appendix I products (cattle 
and bovine products) is permitted only "for the use and distribution of manufacturing, hotels, 
restaurants, catering, and/or other special needs."  Importation for sale to consumers (in modern 
grocery stores or traditional markets) is pro hibited.  MOA 139/2014 establishes the same 
requirement for Appendix I products and also restricts the purposes for which Appendix II products 
(non-bovine animal products) may be imported, providing that they may be imported for the same 
purposes as Appendi x I products and, additionally, for sale in "modern markets" (i.e. supermarkets 
or convenience stores).  However, importation for sale in traditional markets, where the majority of 
Indonesian consumers do their food shopping, is still not permitted.  
18. Domestic Purchase Requirement . Under MOA 139/2014, importers of import beef meat are 
required to "absorb" (i.e., purchase) a certain amount of beef from local slaughterhouses in order 
to import beef into Indonesia.  Specifically, beef importers must purchase b eef from local 
slaughterhouses equivalent to three percent (by volume) of the beef that they import.  Local beef 
purchases are limited to specific abattoirs and only male cattle qualify toward the requirement, 
which has made it difficult for importers to fi nd and purchase Indonesian beef equivalent to three 
percent of the quantity that they would otherwise import.  
19.  Reference Price Requirement . MOT 46/2013, states that if the market price of secondary 
cuts of beef is below a certain "Reference Price," im ports of Appendix I products are "postponed" WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
-C-30 - 
 
  until the market price again reaches the Reference Price.  MOT 46/2013 sets the Reference Price at 
Rp 76,000.00/kg, but this can be revised at any time by a Beef Price Monitoring Team.  Thus, if the 
Indonesian mar ket price of secondary cuts of beef falls below that figure, importation of all cattle, 
beef meat (primary as well as secondary cuts), and beef offals will not be allowed until the price of 
secondary cuts rises about Rp 76,000.00 per kg.  
II. LEGAL DISCUSSI ON 
A. Indonesia's Import Licensing Regime for Horticultural Products Is Inconsistent 
with Article XI:1 of the GATT 1994  
1. The Application Windows and Validity Periods Are Inconsistent with Article XI:1  
20. Indonesia's application window and validity perio d requirements are "restrictions" within the 
meaning of Article XI:1 because the structure of these requirements causes a period of several 
weeks each semester when products cannot  be exported to Indonesia.  Shipping of horticultural 
products for a semester  cannot begin until after Import Approvals are issued because exporters 
must have a valid Import Approval in order to have their products inspected and verified in the 
country of origin.  Further, the products must arrive in Indonesia and clear customs befo re the end 
of the semester, when Import Approvals expire.  Because it takes four to six weeks to ship 
products from the United States to Indonesia, exporters must stop shipping well before a 
semester's end to ensure their products can arrive and clear custo ms by the last day.  
Consequently, at the end of each semester, there is a period of several weeks when exporters 
cannot ship for the current period because the goods cannot arrive in time but cannot start 
shipping for the next semester because Import Appro vals have not been issued.  
21. Thus the application windows and validity periods of RIPHs and Import Approvals impose 
limiting conditions on importation and have direct limiting effects on imports.  First, they 
necessarily reduce the total time and opportun ity available for an RI to import horticultural 
products during a year.  Second, they create additional uncertainty and impose additional costs on 
the RIs in Indonesia and their exporter partners, who bear the risk of having their horticultural 
products re -exported or destroyed if their shipments are delayed and arrive in Indonesia after the 
expiration of the RIPH and Import Approval.  Therefore, the application windows and validity 
periods of RIPHs and Import Approvals are a restrictions  under Article XI:1.   
2. The Fixed License Terms Are Inconsistent with Article XI:1  
22. A measure is a "restriction" if it imposes "a limitation on importation, a limiting condition on 
importation, or has a limiting effect on importation."  Where a measure allows only certain i mports, 
that measure is a restriction.  During a semester, the only horticultural products permitted to be 
imported are those that conform to the products listed on importers' RIPHs and Import Approvals.  
Therefore, (1) imports of certain products are effect ively banned until the next period; (2) only a 
specified quantity of each type of product can be imported; (3) products from other WTO Members 
are restricted to the amounts originally requested by importers (and may be set at zero for the 
period); and, (4)  if the original port of entry is no longer available or commercially feasible for use, 
the products cannot enter through a different port of entry.  
23. Previous panels have similarly found that measures imposing limits of this kind are 
restrictions under Article XI:1.  For example, in India – Autos , the panel considered a measure that 
imposed a trade balancing requirement that companies' exports be at least equivalent in value to 
their imports.  The panel found that the measure was a restriction contrary to Article XI:1 because 
"an importer [was] not free to import as many restricted kits or components as he otherwise might 
so long as there is a finite limit to the amount of possible exports."  Thus, although the measure 
"[did] not set an absolute numerical li mit on the amount of imports," imports were restricted in 
reality because there was a limit to the amount of products that companies would have the "desire 
and ability to export," and this would limit the quantity of products that they would be permitted t o 
import.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- C-31 - 
 
  3. The Realization Requirement Is Inconsistent with Article XI:1  
24. Indonesia's 80 percent import realization requirement is a "restriction" under Article XI:1 
because it is a limitation or limiting condition on importation, or has a limiting e ffect on 
importation.  First, importers are subjected to the requirement as a condition for being allowed to 
import, and failure to meet the requirement may result in ineligibility to import in the future.  
Further, the requirement creates a powerful inducem ent to importers to lower the amounts for 
which they seek permission to import.  Because an RI will lose its designation if it fails to meet the 
realization figure by the end of a semester, the RI must select an import amount for its Import 
Approval applica tion that would avoid a situation in which it must continue importing products, 
even at a loss, to reach 80 percent.  To mitigate this risk, each RI must lower the quantity it 
requests in its Import Approval application to less than the amount it would requ est otherwise.  
25. Previous panels have found that measures imposing limits of this kind are restrictions under 
Article XI.  The India – Autos  panel found that India's requirement that importers balance the value 
of imported auto kits and components with th e value of their exports from India "induced [an 
importer] . . . to limit its imports of the relevant products" in relation to the importers' "concern[] 
about its ability to export profitably."  This was an import restriction because "a manufacturer is in 
no instance free to import, without commercial constraint, as many kits and components as it 
wishes without regard to its export opportunities and obligations."  Similarly, the realization 
requirement causes importers to limit the amount that apply to import , which, in turn, restricts the 
quantity of products they are allowed to import.   
4. The Restriction on the Importation of Horticultural Products Based on the 
Indonesian Harvest Period Is Inconsistent with Article XI:1  
26. The harvest season requirement is  inconsistent with Article XI:1 because it imposes 
limitations or limiting conditions on importation, or has a limiting effect on importation.  Under MOA 
86/2013, the Ministry of Agriculture establishes periods of time during which it restricts or 
prohibits  the importation of certain horticultural products to protect domestic products during their 
harvest periods.  Because importers must obtain RIPHs to import horticultural products, restrictions 
through the RIPHs issued for certain fruits during Indonesia's harvest period directly limits the 
types and quantities of imported products entering Indonesia during the entire six -month period.  
Indeed, Indonesia's import data for the relevant horticultural products points to the real world 
impact of Indonesia's restr ictions based on harvest periods.   
27. The panel in Turkey – Rice examined, in the context of Article 4.2 of the Agreement on 
Agriculture, Turkey's suspension of issuing import permits during local harvest periods to ensure 
the absorption of local rice pro duction.  It found that such measure "restricted the importation of 
rice for periods of time" and was thus a quantitative import restriction.  Similarly, Indonesia's 
requirement based on the Indonesian harvest periods imposes a limitation on imported 
horticu ltural products, and has a limiting effect on the quantity allowed into Indonesia.  
5. The Storage Capacity Restriction Is Inconsistent with Article XI:1  
28. Indonesia's requirement that an importer own its storage facility and that the quantity 
specified i n the Import Approval cannot exceed the capacity of its storage facility is a "restriction" 
within the meaning of Article XI:1.  First, this requirement limits the quantity of imported products 
because it operates as an artificial ceiling on the quantity an  RI can import during each semester.  
Fresh fruits and vegetables inventory can undergo multiple turnovers during a six month semester.  
Without such a restriction, an importer might be able to fill its facility multiple times during a 
semester.  And without the ownership requirement, the importer might be able to fill many such 
facilities multiple times over each semester.  Second, the ownership requirement also adversely 
affects the competitive opportunities of imported products by creating burdensome and eve n 
prohibitive storage costs.  This requirement precludes RIs importing horticultural products from 
seeking alternative, more economical storage arrangements, including leasing or renting capacity.  
6. The Use, Sale, and Transfer Restrictions Are Inconsistent  with Article XI:1  
29. Indonesia's restrictions impose direct limitations and limiting conditions on importers and 
their use of imported horticultural products and thereby increase the costs associated with WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
-C-32 - 
 
  importation.  The restriction on RIs means that re tailers cannot import horticultural products 
themselves and cannot buy directly from RIs.  The requirement adds a level in the supply chain by 
forcing importers to rely on distributors and thus increases the costs associated with imported 
products.  For PIs,  the restriction on their sale and transfer of imported horticultural products 
creates waste and increases unnecessarily the cost of using imported products.  If a PI does not 
use all of its imported horticultural products during its production, it is force d either to destroy the 
excess products or incur the cost of storing them.  PIs are thus required to predict precisely the 
quantity of imported products that they will use in their production for each period.  
30. Previous panels have found that measures imp osing limits of this kind are restrictions under 
Article XI:1.  The panel in India – Quantitative Restrictions  considered an import regime that 
included a use restriction, namely that goods could be imported only by the "actual user."  The 
panel found this r equirement to be "a restriction on imports because it precludes imports of 
products for resale by intermediaries, i.e. distribution to consumers who are unable to import 
directly for their own immediate use is restricted."  Indonesia's use, sale, and transf er restrictions 
operate in a similar manner.  Thus, these restrictions on importers and their sale, transfer or use of 
the products they import are a "restriction" within the meaning of Article XI:1 of the GATT 1994, 
and Indonesia breaches Article XI:1 by i nstituting or maintaining these requirements.  
7. The Reference Price Requirement Is Inconsistent with Article XI:1  
31. Indonesia's Reference Price requirement for chilies and fresh shallots is a restriction under 
Article XI:1 because it limits importation of these products to periods when market prices remain 
above a government -determined level and is a prohibition for those periods when market prices 
fall below those levels.  The Reference Price requirement is similar to a minimum import price 
requirement, which previous panels have found to be restriction under Article XI:1.  As the panel in 
China – Raw Materials  recognized, the "applicability of Article XI:1 to minimum price 
requirements" was addressed by two GATT panels, both of which concluded that such 
requirements were "restrictions" under Article XI:1.  The Reference Price requirement is even more 
categorical than the minimum import or export prices found to be restrictions by those previous 
panels because it prohibits any imports of chilies and shallots  once the Reference Price has been 
reached, not only imports sold at prices below that Reference Price.  Accordingly, the Reference 
Price requirement is limitation or limiting condition on importation, or has limiting effects, and 
Indonesia breaches Article  XI:1 by instituting or maintaining this requirement.  
8. The Restriction on the Importation of Horticultural Products Harvested More than 
Six Months Previously Is Inconsistent with Article XI:1  
32. The requirement that importers not import products that h ave been harvested more than six 
months previously is a limitation or limiting condition on importation, or has a limiting effect on 
importation.  Certain horticultural products are stored in controlled atmosphere conditions after 
harvest where they remain fresh for more than six months; consequently, they can be shipped 
year-round to global markets.  Under the six -month harvest requirement, however, RIs are 
effectively prohibited from importing apples from the United States into Indonesia from April to 
Octob er (October being the most common month of harvest in North America).  The importer may 
not import products according to commercial considerations, but only those products meeting the 
requirement.  And failure to satisfy the requirement may further lead to t he importer losing the 
right to import horticultural products for one year.   
33. The panel in Turkey – Rice found, in the context of Article 4.2 of the Agreement on 
Agriculture, that limiting the issuance of import permits based on specified harvest period s 
restricted importation and is a quantitative import restriction.  Similarly, Indonesia's requirement 
imposes a limitation based on the time certain imported horticultural products were harvested, and 
has a limiting effect on the quantity allowed into Indo nesia, and Indonesia breaches Article XI:1 by 
instituting or maintaining this requirement.  
9.  Indonesia's Import Licensing Regime for Horticultural Products, As a Whole, Is 
Inconsistent with Article XI:1  
34. Indonesia imposes numerous restrictions and pro hibitions on importation of horticultural 
products through its import licensing regime.  An importer must comply with all aspects of the WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- C-33 - 
 
  regime to import, and importation is not undertaken according to commercial considerations but in 
relation to the requir ements and conditions imposed by the regime that distort or frustrate those 
commercial considerations.  These various requirements, when operating in combination, have the 
effect of both directly limiting imports and creating disincentives for importers to import the type 
and amount of horticultural products they otherwise would if acting according to their commercial 
considerations.  The design and structure of these requirements ultimately aims to achieve the 
policy goals set forth in the statutory framewor k: to "provide protection for national horticultural 
farmers, business players, and consumers" and to prohibit importation "when the availability of 
domestic Agricultural Commodities is sufficient."  Thus, when Indonesia's import licensing regime 
for hortic ultural products is considered as a whole, the regime constitutes a restriction inconsistent 
with Article XI:1.  
B. Indonesia's Import Licensing Regime for Horticultural Products Is Inconsistent 
with Indonesia's Obligations Under Article 4.2 of the Agreemen t on Agriculture  
35. Indonesia's import licensing regime for horticultural products and its constituent prohibitions 
or restrictions are "measures of the kind which have been required to be converted into ordinary 
customs duties" within the meaning of Arti cle 4.2 of the Agreement on Agriculture.  Footnote 1 to 
Article 4.2 provides that such measures include, inter alia , "quantitative restrictions," "minimum 
import prices," and "similar border measures" other than ordinary customs duties.  Where a 
measure of t he type listed in footnote 1 constitutes a "prohibition or restriction" (other than duties, 
taxes or other charges) in breach of Article XI, that measure also would run afoul of the prohibition 
in Article 4.2.  The United States considers that Indonesia's i mport licensing regime for horticultural 
products – as a whole and in its constituent parts – breaches Article 4.2 for the same reasons that 
it breaches Article XI:1 of the GATT 1994.   
C. Indonesia's Import Licensing Regime for Animals and Animal Products Is 
Inconsistent with Indonesia's Obligations under Article XI:1 of the GATT 1994  
1. The Prohibition on the Importation of Animals and Animal Products Not Listed in 
Indonesia's Regulations Is Inconsistent with Article XI:1  
36. Indonesia's positive list for the animals and animal products that can be imported is a 
prohibition within the meaning of Article XI:1.  Numerous types of animals and animal products are 
not listed in the appendices to the regulations, including chicken cuts and parts and secondary cuts  
of beef.  Applications for Import Approvals to import these products will not be granted, and 
importers are prohibited from importing products not specified on a valid Import Approval.  Trade 
data for products that were removed from the list of permitted pr oducts with the issuance of MOA 
139/2014 illustrate the limiting effect of the ban on importation of unlisted products.  
37. Panels in previous disputes have found that measures that operate as bans on the 
importation of particular products are inconsistent  with Article XI:1.  The panel in US – Poultry 
(China)  based its conclusion that the challenged measure was a prohibition inconsistent with 
Article XI:1 on the fact that the measure prohibited the administering agency from "us[ing] 
appropriated funds to ‘es tablish' or ‘implement' a rule allowing the importation of poultry products 
from China," which "had the effect of prohibiting the importation of poultry products from China."  
Similarly, the panel in Brazil – Retreaded Tyres  found that the challenged measur e "operate[d] so 
as to prohibit the importation of retreaded tyres" and, therefore, fell within the scope of Article 
XI:1. Indonesia's positive list of animals and animal products and consequent ban on importation 
of unlisted products thus constitutes a "p rohibition" under Article XI:1.  
2. The Application Windows and Validity Periods Are Inconsistent with Article XI:1  
38. As discussed above in the context the analogous restriction on horticultural products, these 
requirements impose a limitation on importat ion or have a limiting effect on imports, and therefore 
constitute a "restriction" under Article XI:1.  For animal product imports to be accepted into 
Indonesia, the Import Approval number must be written on the Certificate of Health issued in the 
products'  country of origin.  Importers thus cannot place orders for any period until after Import 
Approvals have been issued.  Moreover, all animal products imported during a validity period must 
arrive in Indonesia and clear customs prior to the end of the period.  This means that exporters in 
the United States must stop shipping to Indonesia four to six weeks before the end of the period.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
-C-34 - 
 
  Consequently, there is at least one month at the end of each period when Indonesian importers 
seeking to import animal products a re precluded  from choosing U.S. products due to the structure 
of the application window and validity period requirements.    
39. Previous panels have found that measures imposing similar restrictions are inconsistent with 
Article XI:1.  The Colombia – Ports of Entry  panel found that a measure restricting imports to two 
Colombian ports had a limiting effect" on imports because "uncertainties . . . and the likely 
increased costs that would arise for importers operating under the constraints of the port 
restrict ions, limit competitive opportunities for imports."  Indonesia's application window and 
validity periods are far more restrictive in that they wholly exclude U.S. animals and animal 
products from entering Indonesia for four to six weeks each quarter.  
3. The Fixed License Terms Are Inconsistent with Article XI:1  
40. During each three -month period, Indonesia limits the imports of animals and animal 
products to products of the type, quantity, country of origin, and port of entry listed on the 
Recommendations an d Import Approvals for that period.  Once an import period begins, importers 
cannot apply for new permits to import different or additional products, and imports are strictly 
limited to the products specified on outstanding permits.  As described above in di scussing the 
analogous restriction on horticultural products, previous panels have found that measures with 
similar restrictive effects were restrictions under Article XI:1.   
4. The Realization Requirement Is Inconsistent with Article XI:1  
41. Indonesia re quires that importers who are licensed to import Appendix I products must 
import at least 80 percent of the products listed on their Import Approval(s).  This requirement is a 
restriction within the meaning of Article XI:1 because it is a condition on impor tation that induces 
importers to reduce the quantity of products that they request permission to import and may 
render the importer ineligible to import products if that condition is not met.  As discussed above, 
previous panels have confirmed that measures  imposing limits of this kind are "restrictions" under 
Article XI:1.  
5. The Restriction on the Importation of Animals and Animal Products Other Than 
for Certain Limited Purposes Is Inconsistent with Article XI:1  
42. Indonesia's use requirements for importe d animal products ar e a "restriction" under 
Article  XI:1 of the GATT 1994 because they are a condition on importation that limits the 
opportunities of imported products, and thus limits the quantity of imports.  For beef products, the 
permitted purposes do not include any retail sale, either in modern markets or in traditional 
markets.  For non -beef products, the permitted purposes exclude sale in traditional markets.  
Indonesian consumers still do at least half of their food shopping at traditional retail out lets. Thus, 
the use restrictions for Appendix II products bar imports from competing for a significant portion of 
the sales in the Indonesian market, while the restrictions for Appendix I products exclude imports 
from the retail market altogether.  The requ irements also render the importer ineligible to import in 
the future if the condition is not met.  As described above, previous panels have found that 
measures imposing limits of this kind are restrictions under Article XI:1.  
6. The Domestic Purchase Requir ement Is Inconsistent with Article XI:1  
43. Indonesia's domestic purchase requirement for beef imports is a "restri ction" under 
Article  XI:1 because it is a condition on importation that may render the importer ineligible to 
import if it is not met and tha t has a limiting effect on imports.  First, the domestic purchase 
requirement is designed to substitute imports with domestic products.  It compels importers to 
purchase locally produced goods before they can import foreign products, such that at least a 
portion of the products that otherwise would have been imported are replaced with domestically -
produced goods.  Second, the requirement ties the permissible quantity of beef imports to the 
supply of local beef that is available for purchase towards the require ment.  Consequently, 
importers are forced to reduce their planned imports and request lower quantities in their 
Recommendations and Import Approvals applications than they would in the absence of the 
requirement.  Third, the domestic purchase requirement add s unnecessarily to the costs of 
importation by requiring importers to purchase local beef without any business purpose.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- C-35 - 
 
  44. Previous panels have found that measures imposing limits of this kind are restrictions under 
Article XI:1.  The panel in Argentina – Import Measures  considered a similar measure and found: 
"The required increase of local content . . . has a direct limiting effect on imports, because the 
measure is designed to force the substitution of imports."  The panel also found that the measure 
had a restrictive effect because it "may result in costs unrelated to the business activity of the 
particular operator." The panel in India – Autos  made a similar finding concerning a trade 
balancing requirement.  Thus the domestic purchase requirement is a mea sure that is a limitation 
or limiting condition on importation or has a limiting effect on importation and is, therefore, a 
"restriction" within the meaning of Article XI:1.  
7. The Reference Price Requirement Is Inconsistent with Article XI:1  
45. As descri bed in the context of the analogous restriction for horticultural products, this 
requirement is similar to a minimum import price requirement, which previous panels have 
considered under Article XI:1, although it is even broader than the measures previousl y found to 
be "restrictions."  Further, it also has a limiting effect on imports at other times because the threat 
of such a broad restriction reduces the incentives for importation of these products overall.  
Because the Reference Price requirement restrict s importation of Appendix I products to periods 
when the market price is above the government -set level, and prohibits importation during periods 
when it is not, the Reference Price requirement is a limitation or limiting condition on importation, 
or has a  limiting effect on importation.  Additionally, the requirement is a prohibition, within the 
meaning of Article XI:1, during certain periods.   
8. Indonesia's Import Licensing Regime for Animals and Animal Products, As a 
Whole, Is Inconsistent with Article X I:1 
46. Indonesia's import licensing regime imposes numerous limitations and limiting conditions on 
importation and has various limiting effects on the importation of animals and animal products.  
First, all these restrictions working together lead importer s to reduce, sometimes dramatically, the 
quantities of imports they request to import at the start of each validity period.  And, of course, 
once an import period starts, imports are limited to the types and quantities specified on 
outstanding Recommendatio ns and Import Approvals.  Second, Indonesia's import licensing regime 
further limits importation by imposing additional, non -business costs on imports.  Thus, Indonesia's 
import licensing regime serves as a limitation or limiting condition on importation, or  has a limiting 
effect on importation.  And due to the way the requirements of the regime interact with and 
reinforce each other, the limitations or limiting effect of the regime as a whole is greater than the 
sum of its individual components.   
D. Indonesia 's Import Licensing Regime for Animals and Animal Products Is 
Inconsistent with Indonesia's Obligations Under Article 4.2 of the Agreement on 
Agriculture  
47. Indonesia's import licensing regime for animals and animal products and its constituent 
prohibitio ns or restrictions are "measures of the kind which have been required to be converted 
into ordinary customs duties" within the meaning of Article 4.2 of the Agriculture Agreement.  
Indonesia's import licensing regime for animals and animal products – as a w hole and in its 
constituent parts – breaches Article 4.2 for the same reasons that it breaches Article XI:1.  
E. Indonesia's Restriction on Imports Based on the "Insufficiency" of Domestic 
Production Is Inconsistent with Indonesia's Obligations under Articl e XI:1 of the 
GATT 1994 and Article 4.2 of the Agreement on Agriculture  
48. Indonesia's domestic insufficiency requirement is a limitation or limiting condition on 
importation, or has a limiting effect on importation, and thus is a "restriction" within the  meaning 
of Article XI:1.  First, the domestic sufficiency requirement places a limiting condition on 
importation in that imports are allowed only on the condition that domestic production is deemed 
by the government not "sufficient" to fulfill domestic dem and. If importation is permitted, the 
requirement still places a limitation on importation, as it is allowed only to the extent of the 
"domestic shortfall" that the Indonesian government identified.  Second, the lack of transparency 
and predictability in th e implementation of the domestic insufficiency requirement itself has a 
limiting effect on imports.  The Government does not announce how or when the sufficiency of WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
-C-36 - 
 
  domestic production to satisfy Indonesian consumers' needs will be determined or how the deg ree 
of the shortfall (if any) will be calculated.  As a result, importers are unable to anticipate whether 
and when imports of a particular product will be prohibited, or what level of imports will be 
permitted to make up for a shortfall in domestic product ion. 
49. Previous panels have confirmed that measures that limit the market access and competitive 
opportunities of imported products are "restrictions" under Article XI:1.  Because the domestic 
insufficiency condition limits market access directly by placi ng a limiting condition on importation 
and limiting import volumes, and has further limiting effects by creating uncertainty as to whether, 
and at what levels, imports will be permitted at any given time, the requirement is a "restriction" 
within the meani ng of Article XI:1.  For similar reasons, these provisions are also inconsistent with 
Article 4.2 of the Agreement on Agriculture because they operate as a "quantitative import 
restriction" within the meaning of footnote 1 to Article 4.2.  
V. CONCLUSION  
50. The United States respectfully requests the Panel to find that the prohibitions and 
restrictions imposed by Indonesia's import licensing regimes, operating individually and as whole 
regimes, and the provisions of Indonesia's laws conditioning importation on the insufficiency of 
domestic demand, are inconsistent with Article XI:1 of the GATT 1994 and Article 4.2 of the 
Agreement on Agriculture.  
EXECUTIVE SUMMARY OF  U.S. OPENING ORAL ST ATEMENT AT THE FIRST  SUBSTANTIVE 
MEETING OF THE PANEL   
51. Indonesia has  imposed numerous restrictions on the importation of horticultural products 
and animals and animal products.  With one exception, Indonesia does not contest the existence of 
the measures described by the co -complainants.  Instead, Indonesia attacks the compl ainants' 
claims based on arguments that either misinterpret the obligations and exceptions of GATT 1994 
and the Agreement on Agriculture or mischaracterize the way the measures at issue operate.  
I. Order of Analysis  
52. Indonesia asserts that the Panel mus t begin with Article 4.2 because the Agriculture 
Agreement is, per se, more specific with respect to agricultural products than the GATT 1994.  The 
complainants' claims each relate to prohibitions or restrictions imposed by Indonesia on the 
importation of h orticultural products and animals and animal products.  Prohibitions and restrictions 
on importation are addressed specifically under Article XI:1 of the GATT 1994.  Therefore, the 
measures and claims at issue in this dispute are dealt with specifically unde r Article XI:1 and not 
dealt with more specifically under the Agreement on Agriculture.  
53. Furthermore, Indonesia has defended the challenged prohibitions and restrictions under 
Article XX of the GATT 1994.  Indonesia raises this defense regardin g the cla ims under both 
Article  XI:1 and Article 4.2.  In doing so, Indonesia's own argument establishes that the Agreement 
on Agriculture is not more specific to the claims at issue in this dispute.  That is, the applicability of 
Article 4.2 in this dispute would tu rn on whether each measure is justified under the GATT 1994.  
Thus, under Indonesia's own logic, the GATT 1994 is the agreement that deals more specifically, 
and in detail, with the matter raised.   
II. INDONESIA'S ARGUMENT S UNDER ARTICLE XI:1  OF THE GATT 19 94 AND ARTICLE 
4.2 OF THE AGREEMENT  ON AGRICULTURE ARE B ASED ON FLAWED 
INTERPRETATIONS  
A. Trade Effects Are Not Required To Demonstrate a Breach Under Article XI:1 of the 
GATT 1994 or Article 4.2 of the Agreement on Agriculture  
54. Indonesia responds to ma ny of the co -complainants' claims by asserting that the 
co-complainants had not established a prima facie  case because they have not proven that the 
challenged measure has an "impact on trade flows."  This argument is untenable.  Complainants are 
not obligat ed to quantify the trade effects of a challenged measure in order to make a prima facie  
case under Article XI:1.  The ordinary meaning of "restriction" is "[a] thing which restricts someone WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- C-37 - 
 
  or something, a limitation on action, a limiting condition or regul ation."  The term "restrictions" 
under Article XI:1 thus refers to measures "that are limiting, that is, those that limit the 
importation or exportation of products."  The text of Article XI:1 does not suggest that a 
complaining Member must prove, in quantif ied terms, the effects of a measure on trade flows.  
55. The Appellate Body confirmed this interpretation in Argentina – Import Measures , finding 
that a challenged measure's "limitation" on importation "need not be demonstrated by quantifying 
the effects of  the measure at issue; rather, such limiting effects can be demonstrated through the 
design, architecture, and revealing structure of the measure at issue considered in its relevant 
context."  Previous panels have found that Article XI:1 protects competitiv e opportunities of 
imports and that, therefore, proving trade effects is not necessary to establish that a challenged 
measure is inconsistent with Article XI:1.  As the co -complainants demonstrated in their first 
written submissions, the limiting effect on importation of the challenged measures is evident from 
their design, architecture, and revealing structure.  Further, although doing so is not required, the 
co-complainants have, in fact, presented evidence demonstrating the challenged measures' 
negative ef fects on trade flows.   
B. Indonesia's Measures Also Breach to the Extent They Force Market Actors To 
Make Choices that Restrict Imports, and Indonesia Misstates the Content of Its 
Measures  
56. Indonesia also argues that certain measures cannot be challenge d because they are the 
result of choices by private actors.  This argument rests on an incorrect interpretation of 
Article XI:1 and Article 4.2 that previous panels have rejected.  The panels in India – Autos  found 
that the challenged measure was a "restrict ion" under Article XI:1 because it "induced [an 
importer] . . . to limit its imports of the relevant products" in relation to its "concern[] about its 
ability to export profitably."  The panel in Argentina – Import Measures also found that a measure 
had a n egative effect on importation because it meant that private actors "[could] not count on a 
stable environment in which to import and…accordingly reduce their expectations as well as their 
planned imports." To the extent that Indonesia's measures operate by  influencing private choices, 
they force importers to self -restrict in the same way as the measures considered in these previous 
disputes.  Further, Indonesia overstates the extent to which the challenged measures operate 
through the choices of private acto rs, rather than as direct restrictions on importation.  
III.  INDONESIA HAS NOT ES TABLISHED THAT ANY O F THE CHALLENGED MEA SURES 
ARE JUSTIFIED UNDER ARTICLE XX OF THE GA TT 1994  
57. Indonesia asserts a defense under Article XX(d)  with respect to most of the c laims advanced 
by the co -complainants.  In order to make out an Article XX(d) defense, Indonesia must establish: 
(1) that the challenged measure is " designed to ‘secure compliance' with laws or regulations that 
are not themselves inconsistent with some prov ision of the GATT 1994"; and, (2) that the measure 
is "necessary to secure such compliance."  Indonesia has not done either.  First, Indonesia has not 
identified any "laws and regulations" with which the challenged measures are designed to secure 
compliance,  as required by Article XX(d).  Because Indonesia has not satisfied the first element, it 
is not possible to begin the analysis of whether the measure is "necessary to secure compliance" 
with another WTO -consistent law or regulation.  
58. Indonesia also see ks to justify many of the measures at issue under Article XX(b)  by arguing 
that they are necessary to protect human health.  To succeed in such a defense, Indonesia must 
show: (1) that the challenged measure's objective is "to protect human, animal or plant  life or 
health"; and (2) that the measure is "necessary" to the achievement of its objective.  Indonesia 
has not met this standard with respect to any of the challenged measures.  
59. For example, Indonesia claims that the storage capacity requirement is ne cessary because 
of its "equatorial climate" and its "limited capacity to store fresh horticultural products."  It is 
unclear how this restriction would contribute to Indonesia's stated objective of keeping 
horticultural products fresh.  An importer's ownersh ip of storage facilities has little relationship with 
the sufficiency of storage capacity.  A readily available, less trade -restrictive measure would be to 
allow importers to lease storage capacity or simply allow importers to transfer the products 
directly  to the distributor's warehouse.  Thus, Indonesia has not even attempted to explain how the 
requirement to own storage capacity is necessary to protect human health.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
-C-38 - 
 
  60. Indonesia also asserts that "[a]nimals and animal products are not permitted to be sold  in 
traditional Indonesian markets because of the extremely high risk of unsafe food handling."  
However, Indonesia does not explain why the challenged measure would make a contribution to 
that objective, let alone meet the "necessary" standard.  Indonesia h as offered no evidence that 
imported frozen or thawed meat in traditional markets poses any greater risks to human health 
than those associated with freshly slaughtered local meat under the same conditions.  Indeed, the 
Indonesian government has demonstrate d that frozen beef poses no particular food safety 
problem, as Bulog relieves domestic shortages by selling imported frozen beef  in traditional 
markets.  Further, Indonesia's explanation relating to traditional markets has no relevance to the 
prohibition on  importation for all retail sale (including in modern markets) of beef products.  
61. Finally, Indonesia asserts that the restrictions on the importation of horticultural products 
and animal products to certain limited purposes is "necessary to protect publ ic morals" under 
Article XX(a) , specifically Islamic law concerning permissible ("halal") foods.  To make out a 
successful defense Indonesia must show (1) "that it has adopted or enforced [the] measure ‘to 
protect public morals"; and, (2) "that the measure is ‘necessary' to protect such public morals."  
62. With respect to horticultural products, given that the instruments through which Indonesia 
imposes these restrictions do not refer to halal standards, and that Indonesia has not identified 
any halal standa rd, it is difficult to see how the measure might be adopted to protect the 
population from non -halal foods.  Even were the panel able to discern that the measures at issue 
are directed at and contribute to the stated objective, it is not clear how any contr ibution to the 
same would warrant the requirements' high degree of trade -restrictiveness.  Indonesia prohibits 
importers of fresh horticultural products from selling directly to consumers or retailers.  In 
defending these measures, Indonesia claims that cons umers assume that all products sold in 
traditional markets comply with halal standards, and that implementing a labelling system to warn 
consumers about non -halal products would be impossible.  However, the measure at issue limits 
the persons  to whom import ed horticultural products can be sold, not the products' ultimate 
destination.  Imported fresh horticultural products can, and presumably are, sold in traditional and 
other markets.  Indonesia has justified the wrong requirement.  
63. With respect to animal p roducts, Indonesia asserts that its end -use restrictions on 
importation are "necessary to protect public morals . . . because it prevents consumers from 
mistakenly purchasing animals or animal products that do not conform to Halal requirements."  But 
this a rgument ignores the fact that, with the exception of pork, all the animal products imported 
into Indonesia must conform to Indonesia's Halal standards and must be labeled as such.  Thus, 
Indonesia's end -use restrictions are not "necessary" to protect public  morals in the form of Halal 
standards because, with the exception of pork, all imports of animal products into Indonesia 
already meet Indonesia's Halal standards . Further, to the extent that Indonesia seeks to justify the 
entire challenged measure, its st atements concerning traditional markets would not address the 
prohibition on all retail sale with respect to Appendix I (beef) products.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  ANNEX C -4 
SECOND PART OF THE E XECUTIVE SUMMARY OF THE ARGUMENTS OF UNI TED STATES  
EXECUTIVE SUMMARY OF U.S.  SECOND WRITTEN SUBMISSION  
1. The United States challenged fifteen prohibitions and restrictions imposed through 
Indonesia's licensing regimes governing the importation of horticultural products and animals and 
animal products, as well as the regimes as a whole and a related restriction. These measures are 
manifestly inconsistent with Indonesia's WTO obligations. With one exception, Indonesia does not 
contest that any of the measures exist or operate in the way the co -complainants describe. 
Instead, Indonesia advances flawed legal arguments in an attempt to show that the measures are, 
nevertheless, not inconsistent with the covered agreements. Indonesia has failed to rebut the 
prima facie  case established by the co -complainants, and also has failed to show that any of t hese 
measures is justified under Article XX of the GATT 1994.  
I. INDONESIA 'S IMPORT LICENSING REGIMES ARE INCONSISTENT WITH ARTICLE  XI:1  OF THE 
GATT  1994  
A. Indonesia's Argument That Co -Complainants Have Not Established a 
Prima Facie Case Because They Have  Not Proven Actual Trade Effects Is 
Incorrect  
2. Indonesia's argument that co -complainants have not made a prima facie  case because they 
did not prove that import volumes decreased due to the challenged measures is incorrect.  
1. Article XI:1 Does Not Req uire Demonstration of Actual Trade 
Effects  
3. Article XI:1 refers to "restrictions . . . on the importation" of products. The ordinary meaning 
of "restriction" is "[a] thing which restricts someone or something, a limitation on action, a limiting 
conditio n or regulation." The Appellate Body in China – Raw Materials and Argentina – Import 
Measures  found that the term thus refers to measures "that are limiting, that is, those that limit 
the importation or exportation of products." The text of Article XI:1 th erefore does not suggest 
that a Member must prove, in quantified terms, a challenged measure's actual effect on trade 
flows to demonstrate that such measure is a "restriction" under Article XI:1.  
4. The Appellate Body affirmed this interpretation in Argent ina – Import Measures , finding that 
a measure's limiting effect "need not be demonstrated by quantifying the effects of the measure at 
issue; rather, such limiting effect can be demonstrated through the design, architecture, and 
revealing structure of the measure considered in its relevant context." Thus complainants can 
demonstrate a measure's inconsistency with Article  XI:1 by showing that its design, structure, and 
operation impose limitations on importation (actual or potential).  
2. The United States Ha s Established That the Challenged Measures 
Are Restrictions on Importation under Article XI:1  
5. Under the correct legal standard described above, the United States has demonstrated that 
each of the challenged measures, is a restriction on importation unde r Article XI:1.  
6. Application Windows and Validity Periods . Products cannot be shipped until after Import 
Approvals are issued at the start of each import and must clear customs before the last day of the 
period. Therefore, there is a period of five to si x weeks during each period when U.S. exporters 
cannot ship to Indonesia. Thus, based on their design, structure and operation, the Indonesian 
measures restrict the importation of products in breach of Article XI:1.  In addition, the United 
States submitted evidence demonstrating the effect of this no -shipment period on imports.  
7. Realization Requirements . By requiring importers to import at least 80 percent of the 
products listed on their permits, on penalty of becoming ineligible to import, the realization  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  requirements give importers an incentive to ensure they do not obtain permits for more products 
than they are certain they can profitably import. This compels them to apply for lower quantities 
than they would if the 80 percent requirement did not exist, which limits overall quantities of 
imports. Based on the design, structure and operation of the Indonesian regulation, therefore, the 
realization requirement has a limiting effect on importation in breach of Article XI:1. The 
co-complainants also presented  evidence demonstrating that the realization requirements have 
had an adverse impact on imports. This evidence is not "anecdotal conjecture" but reflects the 
experience of actors who operate in Indonesia's import licensing regime, who know how the 
realizat ion requirement works, and who can attest to its limiting effect on imports.  
8. Seasonal Restrictions on Horticultural Products . Under MOA 86/2013, the Ministry of 
Agriculture establishes periods of time within each six -month semester (or covering the enti re 
semester) during which it restricts or prohibits the importation of certain horticultural products, to 
protect domestic producers of those products during the products' harvest periods. The Ministry of 
Agriculture has imposed seasonal bans or restrictio ns on bananas, durian, melons, papaya, and 
pineapples, inter alia , including for the entire year. Thus, contrary to Indonesia's assertions, the 
restrictive effect of this measure is clear from its text, structure and operation.  
9. Storage Capacity Requirem ents for Horticultural Products . Indonesia limits the total quantity 
of products that an importer can receive permission to import during a semester to the storage 
capacity owned by that importer. This requirement limits the quantity of products that can b e 
imported because it does not take into account that horticultural product inventory typically 
undergoes multiple turnovers in a semester. It also means that importers cannot rent or lease 
storage capacity, which limits imports and increases the cost of i mportation. The United States has 
also introduced evidence demonstrating that, in practice, the storage capacity restrictions 
adversely affect import volumes.  Also, contrary to Indonesia's arguments, the claim against the 
storage capacity requirement is in  no way "at odds with the Complainants' claim" against the 
80 percent realization requirement. Both requirements force importers to restrict their Import 
Approval applications and thereby limit horticultural product imports into Indonesia.  
10. Use, Sale, a nd Transfer Restrictions for Horticultural Products . Horticultural products 
imported for consumption must be sold through distributors, and horticultural products imported 
for production cannot  be sold or transferred to another entity. The first restrictio n mandates an 
unnecessary level in the supply chain and therefore additional costs. The second creates waste and 
unnecessarily increases the cost of imports because PIs must predict precisely the quantity of 
products that they will use in their production process for each period. It is a basic rule of 
economics that if the costs of an input product increase, supply of that product will decrease. A 
recent report published by the World Economic Forum confirmed that if supply chain barriers such 
as these were eliminated, trade would increase dramatically. Thus, these restrictions have a 
limiting effect on imports of horticultural products.  
11. Reference Price Requirements for Chilies and Shallots . The Reference Price requirements 
impose an absolute prohibition on importation of chilies and shallots if the Indonesian market 
prices of these products fall below their Reference Prices. The restrictive effect of such a 
prohibition is obvious. The Reference Price also has a restrictive effect at all times because the 
threat of the prohibition reduces the incentives for importation. Indonesia attempts to argue 
against this by presenting a chart showing that imports of chilies and fresh shallots into Indonesia 
were below the level of Import Approvals issued in 2013 and 2 014. But Indonesia's logic is 
inverted. If the Reference Price prohibition were triggered, imports of chilies and shallots would be 
stopped cold; consequently, imports for that period would be  below the quantity of products listed 
on Import Approvals. Thus , even if accurate, Indonesia's data provides no support for the claim 
that the Reference Price requirements do not restrict imports.  
12. Six-Month Harvest Requirement for Horticultural Products . Indonesia prohibits the 
importation of horticultural product s that do not meet the six -month harvest requirement and 
penalizes importers that fail to comply with it. It is uncontested that certain fresh horticultural 
products – apples are one example – can be safely stored and remain fresh for consumption for 
more than six months. These products, although harvested over a period of a few months, can be 
shipped year round. Under the six -month requirement, imports into Indonesia are restricted in the 
second half of the crop year. Thus, the United States has demonstrat ed that the six -month 
requirement has a limiting effect on importation and, additionally, on import volumes.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  13. End-Use Restrictions for Animal Products . It is uncontested that the animal products listed in 
Appendix II to MOT 46/2013 and MOA 139/2014 (non -beef meats and edible offals) cannot be 
imported for sale in traditional markets and that the animal products listed in Appendix I to 
MOT 46/2013 and MOA 139/2014 (beef meat, and edible beef offals) cannot be imported for any 
retail sale. The co -complaina nts have provided evidence demonstrating that Indonesian consumers 
still do at least half their food shopping at traditional retail outlets. This number is even higher for 
animal products. Thus, imported animal products are completely denied access to at l east half and 
as much as 70 percent of the Indonesian consumer market, and the restrictions on Appendix I 
products are even more extensive. The restrictive effect on importation is clear.  
14. Domestic Purchase Requirement for Beef Products . Indonesia requi res importers to purchase 
local beef equal to three percent of their beef imports. Based on the text of the measure and other 
sources, co -complainants have shown that this requirement limits the permissible quantity of beef 
imports based on the supply of l ocal beef that can count towards the requirement that is available 
for purchase. Co -complainants also demonstrated the practical effect of the requirement, showing 
that compliance is burdensome because domestic beef is in short supply in Indonesia and 
importers have difficulty finding and purchasing local beef amounting to three percent of the 
quantity of beef they wish import. Importers are, therefore, forced to reduce the quantity of 
products they apply to import. Additionally, the requirement further red uces imports by adding a 
significant and unnecessary cost to the importation of beef products.  
15. Import Licensing Regimes as a Whole . Due to the combined operation and interaction of the 
different requirements, the regimes, as a whole, are more restricti ve than their components, taken 
singly. In particular, the regimes include requirements that cause importers to reduce the products 
they apply to import, while the fixed license terms requirement then strictly limits imports in any 
period to the products l isted on importers' permits for that period. The fixed license terms and 
application window and validity period requirements further restrict imports by preventing 
importers from responding to market forces by importing different products, or on a differen t time 
schedule, than they had foreseen. And, contrary to Indonesia's assertions, the co -complainants 
have also submitted copious evidence demonstrating that the regimes "operate[] to restrict the 
quantity of imports" of the covered products, although this  is not necessary to show a breach of 
Article XI:1.  
16. Sufficiency of Domestic Supply Requirement . The legal provisions establishing this 
requirement explicitly make all importation conditional on the government determining that 
domestic production is ins ufficient to satisfy domestic demand. The limiting effect of this 
requirement is clear on its face. Additionally, the co -complainants have submitted evidence 
demonstrating the domestic sufficiency requirement's limiting effect on imports.  
3. Trade Data Con firms Restrictive Effect of the Challenged Measures  
17. Although evidence of actual trade effects is not required to establish a breach of Article  XI:1, 
the available trade data confirms that the challenged measures have a limiting effect on 
Indonesian imp orts of the covered products. The challenged measures concerning horticultural 
products went into effect in 2012 and 2013. In those years, imports of every one  of the twenty -
one fresh horticultural products subject to the import licensing regime – with the  single exception 
of lemons – declined sharply, and remained below peak levels in 2014 and 2015. Trade data on 
Indonesian imports of most of the fifteen processed horticultural products subject to the 
challenged measures exhibit a similar pattern. The data  on animal products also confirm the 
limiting effect of the challenged measures. Indonesian imports of unlisted products ( e.g., poultry 
cuts and edible offal) have been essentially zero since the original import licensing regulations 
became effective in 20 11. Imports of listed animals dropped steeply in 2011 and 2012, when the 
import licensing regimes became effective, and remaining below peak levels for 2013 -2015.  
B. Indonesia's Argument that Certain Measures Are Not "Maintained" by 
Indonesia Is Based on a n Incorrect Legal Premise and Is Factually 
Incorrect  
18. Indonesia asserts that many of the co -complainants' claims fall outside the scope of 
Article  XI:1 because the measures are "self -imposed" by private actors and are not "instituted or 
maintained" by I ndonesia. The legal premise of this argument is incorrect. The Appellate Body in WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
-C-42 - 
 
  Korea – Beef considered this argument under Article III:4 of the GATT 1994 and found that "the 
intervention of some element of private choice does not relieve [a Member] of re sponsibility under 
the GATT 1994 for the resulting establishment of competitive conditions less favourable for the 
imported product." Previous panels have found that this principle applies to Article XI:1. Further, 
Indonesia's assertion that the measures a re "decisions of private actors" is inaccurate.  
19. Regarding the application windows and validity periods , Indonesia is wrong that importers 
decide  not to ship their products after a certain date. Under Indonesia's regulations, imported 
products that arri ve after the end of the period for which their import approval is valid will not be 
accepted. Thus, exporters must stop shipping far enough in advance of the end of the period for 
their goods to clear customs by the last day. Importers do not "choose" to s top importing at the 
end of one validity period and the beginning of another, or to reduce their imports accordingly. 
That choice is forced on them by Indonesia's regulatory requirements.  
20. With respect to the fixed license terms , Indonesia's assertion t hat permit terms "are at the 
complete discretion of the importers" is incorrect. The restrictions imposed by Indonesia's import 
licensing regime severely curtail the ability of importers to determine the terms included in their 
permit applications. Further , the co -complainants are challenging not the specific terms of any 
importer's license but the inability of importers, once a validity period has begun, to respond to 
market conditions by importing products different than those specified on their import pe rmits. 
This inability is the result of the requirements maintained in Indonesia's regulations.  
21.  Indonesia is also wrong that the realization requirement  is "a function of importers' own 
estimates." Importers must import 80 percent of the products on th eir Import Approval or lose 
eligibility to import. The threat of ineligibility for future permits incentivizes importers to be 
conservative in the quantities of products that they apply to import, which reduces total imports 
during any import period, compa red to normal market conditions. Thus, importers' decision to 
reduce the quantities they apply for is a forced response to the realization requirement.  
22. Indonesia's claim that any limitation caused by the storage capacity requirement  "is 
self-imposed" a lso fails. Importers seeking to import horticultural products for sale are allowed to 
apply to import only up to the capacity of the storage facilities that they own, on a 1:1 ratio. This 
means that they are required to own enough storage to hold, at one t ime, all of the products that 
they will import for the entire semester. Under market conditions, fruit and vegetable inventories 
turn over many times during a semester, such that importers would fill, empty, and refill their 
facilities multiple times. Thus , Importers do not choose  to limit the products they apply to import 
to their owned storage capacity; their decision is a compelled by Indonesia's measure.  
II. INDONESIA 'S IMPORT LICENSING REGIMES ARE INCONSISTENT WITH INDONESIA 'S OBLIGATIONS 
UNDER ARTICLE  4.2 OF THE AGREEMENT ON AGRICULTURE  
23. The United States has demonstrated that all of the challenged measures are inconsistent 
with Indonesia's obligations under Article 4.2 of the Agreement on Agriculture. Indonesia's 
arguments in response are legally and factually incorrect.  
24. First, Indonesia's argument that its import licensing regimes are "automatic" and, as such, 
are outside the scope of Article 4.2 is based on an incorrect legal premise. Article 4.2 covers "any 
measures of the kind which have be en required to be converted into ordinary customs duties." The 
only measures that are excluded  from Article 4.2 are "ordinary customs duties"; all other types of 
measures are potentially covered. The Appellate Body confirmed the broad scope of Article 4.2 in 
Chile – Price Band System , stating that Article 4.2 was the "legal vehicle" for the conversion of all 
"market access barriers" into ordinary customs duties. Further, the text of Article XI:1 of the 
GATT  1994 is explicit that "import or export licenses" can impose restrictions on importation within 
the meaning of Article XI:1.  
25. Additionally, as a factual matter, Indonesia's import licensing regimes are not "automatic." 
Indonesia's argument is based on an incorrect definition of "automatic" that, if acc epted, would 
mean Members could impose, through import licensing, any substantive restriction on importation, 
as long as import licensing agents could not exercise discretion in issuing licenses and licenses 
eventually were granted after all legal requirem ents were met. This definition of "automatic" has 
no support in the text of any of the covered agreements. Further, the suggestion that licensing WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- C-43 - 
 
  regimes such as Indonesia's are immune from scrutiny would undermine the prohibitions of 
Articles XI:1 and 4.2 , because it would allow Members to impose substantive restrictions on 
importation under the guise of legitimate licensing procedures.  
26. Second, Indonesia's argument that the Reference Price requirements are not "minimum 
import price[s]" is incorrect. Th e requirements clearly fall within the definition of a "minimum 
import price" because they prohibit all importation when prices are below a set level. Moreover, 
Indonesia's Reference Price requirements also are inconsistent with Article 4.2 because they ar e 
"quantitative import restrictions" or "similar border measures." Thus, Indonesia has not rebutted 
the prima facie  case that the Reference Price requirements are inconsistent with Article 4.2.  
27. Indonesia's other arguments under Article 4.2 are essentia lly the same as its arguments 
under Article XI:1 of the GATT 1994 and, therefore, fail for the same reasons.  
III. INDONESIA HAS FAILED TO ESTABLISH A DEFENSE UNDER ARTICLE XX OF THE GATT  1994  WITH 
RESPECT TO ANY OF THE CHALLENGED MEASURES  
A. None of the C hallenged Measures Is "Necessary To Secure Compliance 
with" Any GATT -Consistent Indonesian Law or Regulation  
28. To establish that one of the challenged measures is justified under Article XX(d), Indonesia 
must show that the measure is " designed to 'secure  compliance' with laws or regulations" that are 
not themselves GATT -inconsistent and is "necessary to secure such compliance." Indonesia asserts 
that the application windows and validity periods, fixed license terms, realization requirements, 
and storage c apacity restrictions are "necessary" for "customs enforcement" and the use, sale, and 
transfer restrictions on horticultural products are "necessary" to secure compliance with food 
safety requirements. All of Indonesia's defenses fail.  
29. First, Indonesia  has not identified a GATT -consistent law or regulation with which any of the 
challenged measures is necessary to secure compliance. Indonesia named three legal instruments, 
as well as ten "other relevant regulations" as being among  the "WTO -consistent law s and 
regulations" with which the measures are "designed to secure compliance." But Indonesia did not 
submit the relevant laws or regulations for the record, did not specify what aspects of these laws 
were relevant to the Panel's analysis, and provided no explanation as to why any of the challenged 
measures were necessary to secure compliance with these laws.  
30. Appellate Body reports show this is insufficient. In Thailand – Cigarettes (Philippines) , the 
Appellate Body found that Thailand's Article XX(d) d efense failed because Thailand did not "identify 
precisely the 'laws or regulations' with which the measure . . . purportedly secures compliance. 
"Thailand had referred to its value -added tax law, "Chapter 4" of its Revenue Code," and 
"reporting requiremen ts of its VAT and other tax laws." The Appellate Body found these references 
were insufficient to identify a WTO -consistent rule under Article XX(d), noting that they 
"encompass a myriad of provisions . . . addressing various matters."  Indonesia's referenc es are 
even less precise and thus fail to meet the Article XX(d) standard . 
31. However, even if Indonesia identified a law or regulation on customs enforcement, its 
defenses would still fail because none of the measures is "to secure compliance" with such a rule.  
None of the regulations establishing the restrictions mentions customs enforcement as one of its 
purposes. Further, the import licensing regimes are administered by the Ministries of Trade and 
Agriculture and are distinct from Indonesia's customs r egime, which is administered by the Finance 
Ministry. Additionally, as the co -complainants have shown, it is clear from the text, structure, and 
history of the import licensing regulations and their framework legislation that their actual purpose 
is to pro tect domestic producers from competition from imports.  
32. But even if the Panel found that a challenged measure is "to secure compliance" with some 
WTO-consistent law or regulation, the "necessary" standard still would not be met.  
33. With respect to the application windows and validity periods , Indonesia asserts that they 
"contribute to Indonesia's ability to allocate resources effectively" among its ports. But it is not 
clear that the measure would make any contribution at all in this regard. Importers d o not tie their 
imports to a particular port. Therefore, Indonesian officials would know at the beginning of the WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
-C-44 - 
 
  period only the maximum permitted imports for that period and the ports where such imports 
could possibly be brought in. It is unclear how reso urces could be allocated based on this 
information. Further, a less trade -restrictive way to achieve the objective of "providing advance 
notice of expected import volumes" would be a truly automatic import licensing regime where 
importers could apply on an y day prior to the customs clearance of goods and receive permission 
to import goods of the type and quantity requested through the port specified. Such a regime 
could be administered in the same way as the current regime, and would, therefore, be 
"reasona bly available." It would provide more accurately and timely notice of planned imports, 
and, as such, would better  assist Indonesia in allocating resources.  
34. Indonesia asserts that the fixed license terms  also allow customs authorities "to allocate 
their limited resources," but it is difficult to see how this could be the case. The requirement does 
not provide a schedule of what products will be imported when and where; it merely places overall 
restrictions on the products that can be imported in a period . Any minimal contribution the 
measure could make to customs enforcement is not in proportion to its high level of trade -
restrictiveness. Further, if Indonesia wanted information about import volumes and locations, a 
reasonably available alternative measur e would be a truly automatic licensing system. Allowing 
importers to apply to import products of whatever type, quantity, and country of origin they 
choose and to amend or update this information would provide timely, accurate information based 
on which re sources could be allocated.  
35. Indonesia's claim that the realization requirement  is necessary for customs enforcement 
because it serves as a "safeguard against importers grossly overstating their anticipated imports" 
similarly fails. First, Indonesia has  not provided any evidence that a problem with importers 
overstating their anticipated imports exists or explained how, if it did exist, it would impose a 
burden on customs officials. Second, Indonesia's argument concerning "misallocation of limited 
resour ces" is based on the assumption that the import licensing requirements provide customs 
officials with relevant information about planned imports. But this is not the case. Importers are 
not required to provide details on when and where products will be imp orted. Third, Indonesia's 
argument ignores the fact that any over -estimation problem would not exist without the 
application windows and validity periods and the fixed license term requirements. Further, any 
marginal contribution the realization requiremen t could make to saving customs resources would 
be outweighed by the severe trade -restrictiveness of the measure.  
36. Indonesia asserts that the storage capacity restriction  is also necessary for customs 
enforcement due to Indonesia's limited resources. But  Indonesia has not explained how importers' 
ownership of storage capacity is relevant to enforcement of its customs laws. Even assuming that 
problems relating to inadequate storage could arise, they would presumably do so after the 
products had cleared cus toms in Indonesia. Further, Indonesia provides no justification for the two 
most trade -restrictive aspects of the requirement, the ownership requirement and the one -to-one 
ratio of owned storage capacity and total imports allowed entry during a semester.  
37. In defense of its use, sale, and transfer restrictions , Indonesia asserts that this measure is 
necessary "to secure compliance with Indonesia's food safety requirements." Indonesia does not 
identify any WTO -consistent law or regulation with the restrict ions are necessary to secure 
compliance, nor does it present any evidence that the challenged measure is designed to secure 
compliance with such a law or regulation.  Even if Indonesia had done so, the measure would not 
meet the "necessary" standard, as Ind onesia did not explain how the distributor requirement for 
products imported for consumption would allow importers to better track bacteria in the food 
supply. And Indonesia advanced no explanation at all for the prohibition on PIs transferring or 
selling products not used in their own production process. Indonesia also ignores the fact that it 
also has health and sanitary and phytosanitary requirements that apply to horticultural products. 
Because the use, sale, and transfer requirements make no demonstrat ed contribution to food 
safety, a less trade -restrictive alternative would be to eliminate the requirements and continue to 
rely instead on these other requirements, which relate specifically to the objective of food safety.  
38. With respect to its defens e of the regimes "as a whole," Indonesia provides no further 
explanation. We assume that Indonesia's defense of the regime is derivative of its defenses of the 
regime's individual components. Thus, Indonesia's defense must fail for the same reasons as its 
defenses of the individual measures. Moreover, any small contribution that the regimes might 
make to one of these objectives would have to be "necessary" even in light of the extremely trade -
restrictive effect of the regimes as a whole, which Indonesia has  not shown. Elimination of the WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  underlying restrictions, imposition of an automatic import licensing regime and continued reliance 
on other more relevant measures related to food safety would provide reasonably available 
alternative measures Indonesia could  take to remediate the inconsistencies with Articles XI:1 
and 4.2. 
B. None of the Challenged Measures Is "Necessary" To Protect Human Health  
39. To establish that one of the challenged measure is preliminarily justified under Article  XX(b), 
Indonesia must establish that: (1) "the objective pursued by" the measure is "to protect human, 
animal or plant life or health"; and, (2) the measure is "necessary" to the achievement of its 
objective. Indonesia has not met either element with respect to any of its defen ses. 
40. With respect to the seasonal restrictions  on importation of horticultural products, Indonesia's 
argument that they are necessary to protect human health because oversupply of such products 
could have disastrous consequences" lacks merit. First, In donesia has not shown that protection of 
human health is an "objective pursued by" the measure. Indonesia asserted that the measure's 
objective is protecting human health, but introduced no evidence supporting the assertion. 
Further, co -complainants have d emonstrated that the actual purpose of the measure is protecting 
domestic producers from competition. Indonesia also has not met the "necessary" standard, as it 
has not presented any evidence that oversupply occurs or poses risks to human health. Thus it i s 
not clear that the measure would make any "contribution" to its purported objective. And even if 
the measure made some contribution, several less trade -restrictive alternative measures are 
available, including confining harvest period restrictions to tho se regions in which the harvest was 
occurring. Another alternative would be to eliminate the seasonal restrictions and allow market 
forces to resolve any oversupply problem.  
41. Indonesia's argument that the storage capacity restrictions  for horticultural products are 
justified because Indonesia's limited capacity to store such products and its "equatorial climate," 
create a "heightened risk of spoilage" also lacks merit. Indonesia presented no evidence that the 
measure's objective is the protection of huma n health, while the co -complainants' evidence 
suggests that the objective of Indonesia's import licensing regime is protecting domestic producers 
from competition. Further, even if the measure pursued human health, it does not meet the 
"necessary" standard . An importer's ownership  of storage facilities has no relationship with the  
sufficiency of storage capacity, as importers commonly lease storage. Further, importers generally 
empty and refill storage space several times during a semester, so requiring imp orters to own 
enough storage to hold all the horticultural products that they would import for the entire 
semester is not necessary to ensure refrigeration of an importer's products. A significantly less 
trade -restrictive way to achieve that objective woul d be to remove the ownership and one -to-one 
ratio requirements and to allow importers to lease storage capacity as is needed at any time.  
42. Indonesia's claim that the use, sale, and transfer restrictions  on horticultural products 
satisfy Article XX(b) be cause they limit "distribution channels" so that "Indonesian officials are 
better able to track the origin of products that contain pathogenic bacteria" also fails. Again, 
Indonesia did not point to any evidence that "the objective pursued by" the measure is the 
protection of human health. And even if the measure did pursue that objective, no contribution to 
it has been shown, and certainly not one that meets the "necessary" standard. The measure limits 
the persons to whom imported horticultural products ca n be sold, not the products' final 
destination. Imports can be sold in open air markets, provided they are first sold to a distributor. 
The requirement simply lengthens the supply chain (likely making tracking more difficult). Also, 
Indonesia advanced no j ustification of the prohibition on PIs transferring products not used in their 
production. Thus, because the measure makes no contribution to the objective, a less 
trade -restrictive alternative would be for Indonesia to eliminate the requirement and contin ue to 
rely on its health and SPS requirements for preventing the spread of pathogenic bacteria.  
43. Indonesia's argument that six-month restriction  on fresh horticultural products is "necessary 
for the protection of human, plant, or animal life or health" also lacks merit. The first element of 
Article XX(b) is not met because, as with the other challenged measures, Indonesia has presented 
no evidence to suggest that this measure pursues the objective of food safety. The second element 
is not satisfied becau se Indonesia has not shown how the measure would make any contribution to 
food safety. Indeed, Indonesia has not even asserted that the requirement is "necessary" to food 
safety, merely stating that authorities would "prefer" products to be stored locally.  Finally, 
Indonesia ignores the fact that it has health and SPS requirements for horticultural products, WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  including the requirement that all imports be accompanied by health and SPS  certificates. Since all 
horticultural product imports are certified as meet ing Indonesia's health and SPS standards prior 
to their being shipped, a less trade -restrictive alternative measure would be to continue to rely on 
these requirements and not impose the six -month requirement, which is highly trade -restrictive 
and makes no contribution to food safety.  
44. Similarly, with the Reference Price requirements, Indonesia has not referred to anything 
suggesting that the "objective pursued" is the protection of human health. The one exhibit 
Indonesia presented on its food security pl an makes no mention of the Reference Price, any over -
supply problem, or Indonesia's import licensing regimes. Even if human health were the objective 
of the measures, Indonesia has presented no evidence that the Reference Price requirements 
make any contri bution to that objective. Indeed, Indonesia presents no evidence that an 
oversupply problem exists and even acknowledges that food scarcity and under -nutrition are 
persistent problems. Further, even if the requirement did make a contribution to human healt h, 
such contribution would not outweigh the significant trade -restrictiveness of the measure.  
45. With respect to Indonesia's end-use restrictions  on animal products, Indonesia presented no 
evidence that food safety is the objective for which the restricti ons were imposed. Indonesia also 
does not explain how the end -use restrictions are "necessary" to protect human health. Indonesia, 
presented no evidence suggesting that imported frozen or thawed meat sold in traditional markets 
poses any greater risks to h uman health than freshly slaughtered local meat sold in those markets. 
Finally, to the extent that Indonesia is asserting a defense of the whole measure, the explanation 
relating to traditional markets has no relevance to the prohibition on importation for  all retail sale 
(including in modern markets) of beef products.  
46.  Indonesia's assertion that the domestic purchase requirement  for Appendix I products is 
"an integral part of Indonesia's food safety and security plan" is the entirety of Indonesia's 
Article XX(b) defense of this requirement. Indonesia presented no evidence to support its assertion 
and no evidence suggesting that the requirement makes any contribution to food safety. Indeed, it 
is not clear what the connection there could be between the r equirement and food safety. Further, 
even if a small contribution could be demonstrated, it would have to be weighed against the trade -
restrictiveness of the measure, which is significant.  
47. Indonesia asserts that its import licensing regimes, as a whole , fall within the scope of 
Article XX(b). Indonesia does not explain or present evidence in support of these defenses. 
Assuming that Indonesia's defenses of the regimes as a whole derive from its defenses of the 
individual measures, they must fail for the same reasons. Moreover, any small contribution the 
regimes might make to the protection of human health would have to be weighed against the 
trade -restrictiveness of the regimes as a whole. The contribution would have to be significant in 
order to outweigh  this level of restrictiveness, and Indonesia has not made such a showing.  
48. Finally, Indonesia's Article XX(b) defense of the domestic sufficiency requirement  should also 
fail. Beyond a bare assertion, Indonesia provides no further evidence or argumenta tion in support 
of its defense under Article XX(b). Indonesia has put forward no evidence that the objective 
pursued by the laws setting out the domestic sufficiency requirement is "to protect human . . . 
health" or that the measure makes any contribution to that objective. Further, the 
co-complainants have shown that the explicit goal of the laws establishing the domestic sufficiency 
requirement is to protect farmers from foreign competition and reduce (and eventually cease) 
imports. Indonesia has not rebu tted this showing.  
C. None of the Challenges Measures Is "Necessary to Protect Public Morals"  
49. To establish that a measure is preliminarily justified under Article XX(a), Indonesia must 
demonstrate that "it has adopted or enforced the measure to 'prote ct public morals' and that the 
measure is 'necessary' to protect such public morals." Indonesia has not met either element with 
respect to any of its Article XX(a) defenses.  
50. Indonesia asserts that the use, sale, and transfer  restrictions on horticultur al products are 
necessary to protect consumers from purchasing non -Halal horticultural products at traditional 
markets. While the United States agrees that upholding the Halal food requirements in Indonesia is 
a "public moral" under Article XX(a), Indonesi a has not demonstrated that restrictions relate to WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- C-47 - 
 
  this objective. The texts of the legal instruments setting forth the restrictions contain no reference 
to Halal requirements at all. Moreover, Indonesia fails to provide any other evidence showing 
connecti on between the restrictions and any Indonesian Halal requirements.  
51. Even if Indonesia could show that the protection of Halal requirements is an objective of the 
use, sale, and transfer restrictions, the restrictions are not necessary to this objective.  The 
restrictions limit the person  to whom the imported horticultural products may be sold upon entry, 
not the products' ultimate point of sale . Restricting the initial sale to distributors does not relate to 
consumers' ability to distinguish Halal product s in the markets. Indonesia's argument that its 
measures operate by limiting imported horticultural products to "uses that naturally require some 
degree of labelling" is also inapposite, since no evidence suggests that distributors are subject to a 
stricte r Halal labeling requirements. Because these restrictions bear minimal, if any, connection to 
the protection of Halal requirements and make no contribution to achieving that objective, a 
reasonably available alternative would be to remove the requirements.  
52. Indonesia contends that the end-use restrictions on animal products are necessary to 
protect public morals because they "prevent[] consumers from mistakenly purchasing animals and 
animal products that do not conform to Halal requirements." However, o ther than this assertion, 
Indonesia has not presented any evidence to show that the objective of the end -use restrictions is 
to protect Halal. An e ven if protecting Halal requirements were an objective of the measure, the 
restriction fails the "necessary" s tandard. It is not necessary to restrict the outlets in which 
imported animal products can be sold, because all imported animal products, with the exception of 
pork, must conform to Indonesia's Halal standards and be so labeled. Thus, Indonesia's end -use 
restrictions are not "necessary" to protect Halal because, with the exception of pork, all imports of 
animal products into Indonesia already meet Indonesia's Halal standards and labelling 
requirements . Further, to the extent that Indonesia seeks to justify the entire measure, its 
statements concerning traditional markets do not address the prohibition on all retail sale 
(including in modern markets) with respect to Appendix I products.  
53. Indonesia asserts that its import licensing regimes as a whole  fall w ithin the scope of Article 
XX(a). As with the Article  XX(b) and XX(d) defenses of the regimes as a whole, Indonesia has 
failed to explain or present any evidence in support of its assertion of defense. Although the United 
States accepts that protection of Halal standards may constitute a public moral, Indonesia has not 
established that it has adopted or enforced the import license regimes to "protect public morals" or 
that the regimes are "necessary" to doing so.  
D. The Challenged Measures Are Inconsistent with the Article XX Chapeau  
54. The challenged measures are not consistent with the Article XX chapeau because they 
arbitrarily or unjustifiably discriminate by imposing restrictions on imports that bear no relation to 
the policy objectives with respect to  which Indonesia seeks to justify the measures.  
55. With respect to Article XX(a), the end -use and use, sale and transfer restrictions result in 
arbitrary and unjustifiable discrimination. The restrictions are not rationally related to the objective 
of pro tecting consumers from non -Halal food, and, without the underlying justification, they serve 
only to impose burdens on importation that do not exist for domestic products.  
56. This is also the case with respect to Indonesia's assertions regarding Article  XX(b). 
Indonesia's restrictions based on the domestic harvest period, importers' storage capacity, the 
use, sale and transfer of imported products, and the time since products were harvested, as well 
as the Reference Price and domestic purchase requirement s, constitute arbitrary and unjustifiable 
discrimination. Each of these restrictions bears little, if any, relationship to the objective of 
protecting human, animal, and plant life or health. Because they lack any rational connection to 
the objective, the result of these restrictions is only to impose burdensome costs and limitations 
on the importation of horticultural and animal products.  
57. Finally, with respect to Article XX(d), Indonesia has shown no connection between the 
application windows and valid ity periods, fixed license terms, realization requirements, storage 
capacity requirements, and use, sale, and transfer restrictions and the objective of securing 
compliance with customs laws. Because none of these restrictions relate to achieving their WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  purported objective, these restrictions exist solely to restrict imports and protect the domestic 
industry and, therefore, result in arbitrary and unjustifiable discrimination.  
IV. CONCLUSION  
58. The United States respectfully requests that the Panel find tha t the prohibitions and 
restrictions imposed by Indonesia's import licensing regimes, operating individually and as whole 
regimes, and the provisions of Indonesia's laws conditioning importation on the insufficiency of 
domestic production to satisfy domesti c demand, are inconsistent with Article XI:1 of the 
GATT  1994 and Article 4.2 of the Agreement on Agriculture.  
EXECUTIVE SUMMARY OF U.S.  OPENING STATEMENT AT THE SECOND SUBSTANTIVE MEETING OF THE PANEL 
59. Indonesia imposes numerous prohibitions and restri ctions on the importation of certain 
horticultural products and of animals and animal products that are, on their face, inconsistent with 
Indonesia's WTO obligations. For the most part, Indonesia does not contest the existence of the 
measures, as described  by the co -complainants. Instead, Indonesia asserts that its measures are 
insulated from review by the Panel and, in the alternative, that the evidence submitted by the 
co-complainants is insufficient to meet the co -complainants' burden of proof.  
I. EACH O F THE CHALLENGED MEASURES IS INCONSISTENT WITH ARTICLES XI:1  AND 4.2 
A. Indonesia's Argument That Its Import Licensing Measures Are 
"Automatic" and, as Such, Are Outside the Scope of Article XI:1 and 
Article 4.2, Is in Error  
60. Indonesia's assertion that "automatic" import licensing procedures are outside the scope of 
Article XI:1 of the GATT 1994 and 4.2 of the Agreement on Agriculture is refuted by the text of 
both provisions. The text of the Agreement on Import Licensing Procedures ("ILA") also contradi cts 
this argument. Article 2(a) does not "expressly permit" automatic import licensing; it merely states 
that automatic licensing that has "restricting effects on imports" is not permitted. Other provisions 
of the ILA confirm that import licensing procedur es, including automatic procedures, are not 
excluded from Members' obligations under the covered agreements.  
61. Further, Indonesia's argument assumes that all of its import licensing measures are "import 
licensing procedures" under the ILA; they are not. The ILA distinguishes between "procedures" 
used to operate import licensing regimes, which the ILA covers, and the substantive rules, as the 
Appellate Body confirmed in EC – Bananas III . Indonesia's import licensing regimes include  
procedures for administe ring the regimes but the challenged measures are much broader. Thus, 
Indonesia is wrong that its substantive import licensing measures fall within the scope of the ILA 
at all. Finally, Indonesia's import licensing regimes are, in any event, not "automatic. " They 
impose numerous substantive restrictions on importation.  
B. Indonesia's Argument that the Co -Complainants Have Not Established a 
Prima Facie  Case under Article XI:1 Rests on an Incorrect Interpretation 
of that Provision  
62. In its second written sub mission, Indonesia asserts that that the co -complainants have not 
made a prima facie  case because they "failed to present sufficient pre - and post -implementation 
import data" to support their Article XI:1 claims. Indonesia's argument is incorrect. First, 
Article XI:1 does not require a demonstration of trade effects. The co -complainants have met the 
standard of Article XI:1 with respect to the challenged measures, demonstrating that each imposes 
a "limiting condition" or "limitation on action" with respect to importation and thus has a "limiting 
effect" on importation. Further, although not legally required, the co -complainants also have 
presented extensive evidence demonstrating the quantitative effect of Indonesia's import licensing 
measures on imports of the covered products.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- C-49 - 
 
  II.  INDONESIA HAS NOT ESTABLISHED THAT ANY OF THE CHALLENGED MEASURES IS JUSTIFIED UNDER 
ARTICLE XI:2  OF THE GATT  1994  
63. In its second written submission, Indonesia asserts that the Reference Price and domestic 
harvest period restr ictions are justified under Article XI:2(c)(ii) of the GATT 1994. However, 
Indonesia has not provided any evidence to show that its restrictions conform to all the elements 
of Article XI:2(c)(ii). Moreover, Indonesia cannot avail itself of Article XI:2(c)( ii) because the 
obligations of the GATT 1994 apply "subject to" the obligations of the Agreement on Agriculture. 
Thus, the exclusion of certain measures from the obligation in Article XI:1 could not create an 
implicit limitation on the scope of a provision  of the Agreement on Agriculture covering similar 
matters. These obligations would apply cumulatively. Therefore, Indonesia cannot seek to justify 
restrictions not consistent with Article 4.2 under Article XI:2(c)(ii).  
III.   INDONESIA HAS NOT ESTABLISHED THAT ANY OF THE CHALLENGED MEASURES IS JUSTIFIED 
UNDER ARTICLE XX OF THE GATT  1994  
64. One fatal flaw pervading Indonesia's defenses is that its claims that the challenged 
measures meet the first element of the subparagraphs consist almost entirely  of unsup ported 
assertions. Indonesia submits no evidence suggesting that the challenged measures were adopted 
in pursuit of the covered objectives. The Appellate Body made clear in EC – Seal Products  that 
mere assertion does not satisfy the first element of the Ar ticle XX subparagraphs. And Indonesia 
does not address the evidence submitted by the co -complainants demonstrating that the objective 
of Indonesia's import licensing measures is to protect domestic producers from competition. 
Another critical failing is th at, without exception, the exhibits Indonesia has submitted to show 
each measure's contribution to its purported objectives do not support the points for which they 
are cited. Indeed, they often serve to confirm  the evidence and argumentation submitted by the 
co-complainants that the challenged measures do not meet the standard of Article XX.  
65. Indonesia asserts that several of its import licensing measures are justified under 
Article  XX(a). But, with respect to horticultural products, Indonesia has not e ven identified any 
relevant halal standards that the import licensing measures could protect. Further, nothing in the 
text, structure, or history of the instruments establishing the horticultural products measures even 
mentions halal, let alone suggests th at the objective of the regime is to uphold halal standards. 
And other than unsupported and vague assertions, Indonesia has not explained how any of its 
measures contribute to the protection of halal requirement, much less shown that their 
contribution is approaching "indispensable" on the continuum of assessing necessity.  
66. With respect to its Article XX(b) defenses, Indonesia similarly does not demonstrate that any 
of the measures pursues the objective of food safety. Indonesia asserts that the fact tha t the 
import licensing regulations refer to the Food Law shows that the challenged measures are food 
safety measures, but this is incorrect. The Food Law is broad statute that covers a variety of 
topics. Chapter IV, Part 5 covers "Import of Food" and its t itle, text, and structure, as well as the 
operation of Indonesia's import licensing regimes and statements by Indonesian officials, all show 
that this is the section relevant to Indonesia's import licensing regimes. Food safety is covered in 
Chapter VII, a nd no evidence ties the import licensing regimes to that part of the law.  
67. Further, none of the evidence put forward by Indonesia suggests that the challenged 
measures could meet the "necessary" standard. Indonesia asserts that its regimes, as a whole , will 
ensure imports "are stored properly" but presents no evidence or argument as to how this would 
be the case. With respect to the six-month restriction , Indonesia's new evidence confirms that the 
measure is not "necessary" for food safety because it sho ws that some horticultural products can 
be safely stored for more than six months. Concerning the use restrictions on animal products , 
Indonesia's defense continues to reflect a mischaracterization of the measure, and none of its 
evidence suggests that fro zen meat poses any greater health risk than fresh meat under the 
conditions in a traditional market. Finally, with respect to the positive list , neither of Indonesia's 
exhibit distinguishes between the prohibited and listed beef products or discusses non -beef 
products at all, and Indonesia provides no more explanation or support for this defense.  
68. Indonesia's Article XX(d) defenses also fail. Indonesia has not adequately identified the 
WTO-consistent laws and regulations purportedly enforced by the impor t licensing measures. 
Indonesia identified 13 legal instruments whose compliance is allegedly secured by its import WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
-C-50 - 
 
  licensing regimes, but the mere listing of legal instruments and cursory references to general 
provisions fall short of identifying the rele vant rule under Article XX(d). Indonesia put forward 
almost no evidence that any of the challenged measures were taken "to secure compliance" with 
the Customs Law or any other listed legal instrument. With respect to the necessity element, 
Indonesia did no t explain how its import licensing measures contribute to securing compliance with  
any requirement of a customs or food safety law or regulation. Merely asserting that the import 
licensing regimes "contributed to the monitoring of the flow of goods" is not  sufficient.  
69. Additionally, Indonesia cannot show that its measures meet the requirements of the 
chapeau of Article XX. Regarding Article XX(a), the challenged measures at issue are restrictions 
on imported  products only. Indonesia offered no arguments to address the arbitrary and 
unjustifiable nature of these restrictions. Regarding Article XX(b), Indonesia asserts that its 
"distinctions . . . between imported and domestic products are not in any way more onerous than 
necessary" but provides no evidence  or explanation of what distinctions exist or how these 
distinctions apply to the measures it seeks to justify. Finally, with respect to Article XX(d), 
Indonesia has not addressed at all the fact that Indonesia's regimes do result in discrimination 
against  imported products vis -à-vis domestic products. Finally, Indonesia has not put forward any 
explanation of how the discrimination arising from the measures it seeks to justify is rationally 
related to the purported objectives of the measures.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- C-51 - 
 
  ANNEX C -5 
FIRST PART OF THE EXECU TIVE SUMMARY OF THE ARGUMENTS OF INDONES IA 
I. INTRODUCTION  
1. New Zealand and the United States ("Complainants") have challenged Indonesia's import 
licensing regime for certain horticultural products, animals, and animal products. The 
Complainants allege that Indonesia has put in place a labyrinth of rules and regulations whose 
main, if not sole, purpose is to protect domestic producers from import competition. The 
Complainants allege that these measures effectively restrict or limit imp orts originating in their 
territories.  
2. Indonesia has the right to safeguard the health and safety of its food supply chain. The 
responsibility to achieve these goals falls heavily upon the Government . The challenged measures 
do so in a manner that take s into account the unique circumstances faced by Indonesia: (i) a 
developing country, (ii) thousands of miles from most of the major agricultural production centers 
and exporters of the world, (iii) located on or near the equator, (iv)  whose population is 
predominantly  Muslim. Rather than restrict or limit imports, the challenged measures seek to 
ensure a safe, reliable, and in some cases Halal -consistent supply of horticultural, animal s, and 
animal products from the Complainants and other WTO Members.  
II. FACTUAL BACKGROUND  
3. This dispute touches upon one of the most sensitive issues faced by any WTO Member, 
which is food safety and security. Indonesia has a population of over 250 million people with most 
living in rural areas spread across a vast archipel ago. Adequate knowledge among consumers 
about food ingredients, food labels, and food storage are often lacking in Indonesia. As the largest 
Muslim country, Indonesia faces another challenge because most of its citizens consume only food 
that is certified as Halal.  
4. As explained in our first written submission, Indonesia's import licensing regime can be 
understood in terms of requirements for horticultural products and requirements for animals and 
animal products.1 The requirements for horticultural prod ucts are slightly different with respect to 
fresh horticultural products, chilies and fresh shallots, and processed horticultural products. The 
requirements for animals and animal products are different with respect to products listed in the 
relevant regul ation and those that are not listed. Although each set of requirements has distinct 
features, they are clearly published and very straightforward. Indonesia's online application portal 
streamlines the process, making it easy for importers to meet all admin istrative requirements to 
obtain the appropriate import license for their products.  
5. Importation of horticultural products is regulated under Law Number 13 of 2010 Concerning 
Horticulture ("Law 13/2010"), which implements various provisions of Indonesia' s 1945 
Constitution, particularly Articles 20, 20(1), 21, and 33. Pursuant to Law 13/2010, Indonesia's 
Ministries of Agriculture ("MOA") and Trade ("MOT") have adopted two sets of regulations: MOA 
Regulation No. 86/2013 ("MOA 86/2013"), which describes the  requirements for obtaining a 
recommendation to import horticulture products from the MOA ("RIPH"), and second, 
MOT Regulation No. 71/2015 ("MOT 71/2015"), which describes the requirements for obtaining an 
"Import Approval" from the MOT.  
6. Importation of animals and animal products is regulated under Law Number 18 of 2009 
concerning Animal Husbandry and Animal Health ("Law 18/2009"), as amended by Law Number 41 
of 2014 ("Law 41/2014"). Pursuant to Law 18/2009 , Indonesia's MOA and MOT have adopted two 
sets of regulations: MOA Regulation No. 139/2014 ("MOA 139/2014"), which describes the 
requirements for obtaining a recommendation  from the MOA, and MOT Regulation No. 46/2013 
("MOT 46/2013"), which describes the requirements for obtaining an "Import Approval" and 
designation as a Registered Importer ("RI") of Animals and Animal Products from the MOT.  
                                                
1 Indonesia 's First Written Submission para s. 16 – 38. WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  7. None of the laws and regulations mentioned above, are intended to limit or prohibit the 
importation of horticultural products, animal s and animal products into Indonesia. On the contrary, 
Indonesia seeks to encourage the importation of food and related items through a transparent and 
automatic licensing system.  
III. LEGAL CLAIMS  
A. Order Of Analysis  
8. This Panel should begin its examination with an analysis of t he World Trade Organization 
("WTO") Agreement on Agriculture ("Agriculture Agreement") before moving on to the GATT 1994, 
because a panel should start its examination with the claims arising under the agreement that 
"deals specifically, and in detail" with  the matter at issue.2 Moreover, in Chile – Price Band System , 
the Appellate Body noted that "if we were to find first that Chile's price band system is inconsistent 
with Article 4.2 of the Agreement on Agriculture, we would not need to make a separate fin ding" 
with respect to whether the measure is inconsistent with the GATT 1994.3 Indeed, the panel in 
Chile – Price Band System  observed that the scope of Article 4.2 of the Agriculture Agreement is 
necessarily broader than the scope of restrictions included  in GATT Article XI:1.4  
9. The Panel should therefore begin its analysis in this case with an examination of the 
Complainants' claims arising under Article 4.2 of the Agriculture Agreement, as it is more specific 
to the products at issue than the GATT 199 4 and this order of analysis offers the greatest 
opportunity to exercise judicial economy.  
B. The Challenged Measured Are Not Inconsistent With Article 4.2 Of The 
Agreement On Agriculture  
10. Footnote 1 to Article 4.2 of the Agriculture Agreement provides a list of measures that have 
been required to be converted to ordinary customs duties in accordance with the GATT 1994. This 
provision largely mirrors the language of GATT Article XI:1, which prohibits quantitative 
restrictions on imports "other than dutie s, taxes or other charges". In order to succeed on a claim 
under Article 4.2, the Complainants must demonstrate that (i) the challenged measures are 
maintained, resorted to, or reverted to by Indonesia; and (ii) the challenged measures are "of the 
kind whi ch have been required to be converted into ordinary customs duties", such as the 
measures mentioned in footnote 1 to Article 4.2, or are "similar border measures".  
11. As a preliminary matter, automatic import licensing procedures are by definition exclud ed 
from the scope of Article 4.2 of the Agriculture Agreement. Indonesia's import licensing regime is 
automatic (i.e. not discretionary), therefore it falls outside the scope of Article 4.2 of the 
Agriculture Agreement. The Complainants have not advanced a ny evidence that persons or entities 
that fulfill all the legal requirements to import products are denied import licenses under 
Indonesia's current import licensing regime. Further, a plain reading of the relevant statutes and 
regulations reveals that Ind onesia does not permit its agents to exercise discretion in the issuance 
of import licenses at any stage in the administrative process . 
12. To the extent that the Panel finds that the challenged measures constitute a non -automatic 
import licensing regime a nd fall within the scope of Article 4.2 of the Agriculture Agreement, the 
Complainants have failed to establish that these measures constitute "quantitative restrictions", 
"minimum import prices", or "similar border measures" as a matter of law . The follow ing analysis 
of the design, structure, and implementation of the challenged measures underscores the 
Complainants' failure to discharge their burden of proof in the first instance.  
13. First, with respect to the application windows and validity periods. Th e application windows 
are typically one month long, are announced in advance, and, because of Indonesia's online 
system, submitting applications is quick and easy. The validity periods for import licenses cover 
                                                
2 Appellate Body Report, EC – Bananas III , para. 204. See also Panel Report, Chile – Price Band System , 
para. 7.12 (citing the same); Appellate Body Report, Chile – Price Band System , para. 184 (citing the same).  
3 Appellate Body Report, Chile – Price Band System , para. 190.  
4 Panel Report, Chile – Price Band System , para. 7.30 ("The 'restrictions other than' referred to in Article 
XI:1 of GATT 1994 constitute a narrower category than the 'similar border measures other than' in footnote 1 
to the  Agreement on Agriculture".).  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- C-53 - 
 
  the entire calendar year, and there is no per iod of time during which imports are restricted as a 
function of the lapse in validity periods. Further, a temporary "slowdown" of imports for a limited 
amount of time is not enough to establish that a measure constitutes a quantitative restriction on 
imports. The Complainants have not placed on the record any evidence that net import volumes 
have decreased as a result of the application windows or validity periods for import licenses. In 
fact, it appears that imports for several key products have increased  as a percentage of the total 
market in recent years5, which shows a growing market for imported food products in Indonesia.  
14. Second , concerning the self -selected terms of import licenses, Indonesia notes that, first, 
importers are free to alter their t erms of importation from one license application to the next. This 
means that the "terms" are only static for one validity period at a time. Having to project trade 
volumes a few months out is hardly the equivalent of a quantitative restriction or similar border 
measure, and incorrect estimates can be easily corrected before the start of a validity period with 
another application or in subsequent license applications for the next validity period. Second,  
Indonesia does not place any limitations on the terms  identified by importers other than the 80 
percent realization requirement, which was removed with the adoption of MOT 71/2015.  
15. Third, the realization requirement served as a safeguard against importers grossly 
overstating their anticipated imports. I ndonesia is a developing country with limited resources to 
devote to import administration. It is therefore important for Indonesia to have a rough idea of 
expected trade volumes for each validity period. Indonesia recognizes the need for flexibility in 
these estimates to account for exigencies in the global supply chain. That is why the realization 
requirement only asked importers to achieve 80 percent of their anticipated imports for the 
relevant validity period.6 However, as noted above, this WTO -consist ent requirement has now 
been removed.  
16. Fourth , concerning the storage capacity requirement, the Complainants argue that importers 
are unable to import as much as they like, while at the same time they say they are struggling to 
import 80 percent of the ir anticipated import volumes. In fact, Indonesia does not place a limit on 
the amount of storage capacity an importer may acquire, just as it does not limit the amount of 
goods and importer may import during a particular validity period. Any limitations p laced on an 
importer's ability to import are self -imposed. Indonesia's requirement that importers obtain 
adequate refrigerated storage capacity for products that require cold storage is merely a food -
safety measure, and does not limit trade.  
17. Fifth, con cerning the requirement that imports of fresh horticultural products not be 
harvested more than six months from the date of importation, this is necessary to ensure food 
safety.  
18. Sixth, with respect to Indonesia's reference price system for chilies and  fresh shallot, this is 
an integral part of Indonesia’s food safety and security plan, which is determined by Indonesia's 
Food Security Council. These goals and objectives are implemented through a multi -agency 
taskforce that includes the Ministry of Agric ulture's Agency for Food Security and the Ministry of 
Trade. The reference price system for chillies and shallots is one tool that Indonesia uses to 
protect against (i) harmful oversupply of perishable food items in equatorial heat; and (ii) the 
consequenc es of extreme price volatility on the availability of a continuous supply of fresh chillies 
and shallots in Indonesia's food supply. Indonesia also notes that the reference price system is not 
continuously in effect. When the reference price system is acti vated, it is always on a temporary 
basis in response to an immediate crisis. It is not a measure designed to restrict imports or 
insulate the domestic market from world market price fluctuations in a form of "minimum import 
price".  
                                                
5 With respect to horticulturan products: the market share of US -origin imports of oranges increased 
from 11 percent in 2012, to 15 percent in 2013, and to 19 percent in 2014. Si milarly, the market share of 
US-origin lemons in creased from 10 percent in 2012, to 13 percent in 2013, and to 22 percent in 2014. With 
respsect to processed horticultural products, the market share for US -origin frozen sliced potatoes increased 
from 33 percent in 2012, to 48 percent in 2013, and to 48 percent in 2014. Remarkably, market share for 
US-origin grapefruit juice increased from 11 percent in 2012, to 56 percen t in 2013, to an astonishing 
85 percent in 2014.  
6 Which gives proper balance between incentivizing importers to provide realistic estim ates of 
anticipated imports on the one hand, and allowing for a reasonable margin of error before penalties were 
applied, on the other hand.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  19. Seventh , concerning  the alleged "positive list" with respect to animals and animal products, 
the importation of all animals and animal products not appearing in Appendix I or Appendix II of 
MOT 46/2013 and MOA Appendix I and II 139/2014 are not necessarily prohibited. Animal s and 
animal products not listed in Appendix I and II are simply exempted from the requirements of that 
regulation and generally permitted to be imported into Indonesia unless expressly prohibited by 
another instrument or agency determination. Therefore Ap pendix I and Appendix II of MOT   
46/2013 are not "positive lists" of all animals and animal products, as alleged by Complainants  
20. Eighth , concerning end -use limitations, Indonesia limits the end uses of certain products to 
certain retail uses7 and in th e production of other products. Certain products are not permitted to 
be sold in traditional Indonesian markets because: (i) of the extremely high risk of unsafe food 
handling; (ii) the lack of resources to monitor food safety practices in these markets an d 
(iii) religious constraints on food consumption that impacts the vast majority of Indonesians. This 
measure does not place an absolute limit on the amount of animals and animal products that can 
be imported for permitted end uses, and thus it is not a "q uantitative restriction" on imports or 
"similar border measure[]" within the meaning of Article 4.2.  
C. The Challenged Measures Are Not Inconsistent With Article XI:1 Of The 
GATT 1994  
21. Article XI:1 of the GATT 1994 covers those prohibitions and restric tions that have a 
limiting  effect on the quantity or amount of a product being imported or exported. In order to 
succeed on a claim under Article 4.2, the Complainants must demonstrate that (i) the challenged 
measures are not duties, taxes, other measures;  (ii) a prohibition or restriction on imports is made 
effective through the challenged measures; and (iii) the prohibition or restriction on imports made 
effective by the challenged measures are instituted or maintained by Indonesia. The Complainants 
have failed to establish that Indonesia's import regime for horticultural products, animals, or 
animal products violates Article XI:1 of the GATT 1994 for the same reasons that they have failed 
to make a prima facie  claim of violation under Article 4.2 of the A griculture Agreement, therefore 
their claim under this provision should fail.  
D. The Challenged Measures Are Excepted Under Article XX Of The GATT 
1994  
22. For the foregoing reasons, Indonesia argues that the challenged measures are (i) outside 
the scope o f Article 4.2 of the Agriculture Agreement and Article XI:1 of the GATT 1994 because 
they constitute an automatic  import licensing regime; and (ii) in the alternative, if they are within 
the scope of Articles 4.2 and XI:1, that the Complainants have failed  to present a prima facie  case 
of inconsistency with those provisions. As a second alternative argument, Indonesia asserts that 
the challenged measures are, in fact, excepted under Article XX of the GATT 1994. Specifically, 
Indonesia asserts that its measu res fall within the exceptions included in subparagraphs (a), (b), 
and (d) of Article XX.  
23. Under Article XX(a) Members are granted broad discretion to determine their own public 
morals and to implement measures necessary for the protection of those pub lic morals. Under 
Article XX(b), a Member may adopt a nonconforming measure that is "necessary to protect 
human, animal or plant life or health". Thus, where considerations of food safety and security, and 
animal and plant life and health are concerned, su bparagraph (b) guarantees Members the ability 
to address these concerns in a nondiscriminatory manner that is not a disguised restriction on 
trade. Finally, the necessity contemplated under subparagraph (d) may arise from the logistical, 
economic, or admin istrative constraints that make customs enforcement nearly, if not actually, 
impossible without certain limitations that would otherwise be prohibited by the GATT 1994.  
24. With respect to the application windows and validity periods, the self -selected imp ort license 
terms, and the prior 80 percent realization requirement – these measures are or were a necessary 
component of Indonesia's customs regime and, therefore, are covered under subparagraph (d) of 
Article XX. As a developing country, Indonesia has li mited resources to devote to the control of its 
borders and the processing of food imports across its borders.  
                                                
7 For example,  hotels, restaurants, and supermarkets.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  25. With respect to the requirement that imports of fresh horticultural products not be harvested 
more than six months from the date of importat ion and the storage capacity requirement, these 
measures are necessary for the protection of human, plant, or animal life or health in accordance 
with Article XX(b) of the GATT 1994. In Indonesia's equatorial climate, proper food handling and 
storage is of  utmost importance to ensure the safety of Indonesia's food supply.  
26. With respect to the domestic harvest period limitations, Indonesia asserts that this measure 
is also necessary to protect human, animal, or plant life or health in accordance with subp aragraph 
(b) of Article XX of the GATT 1994. Oversupply of fresh horticultural products could have 
disastrous consequences. Indonesia's equatorial climate accelerates the rate at which fresh 
horticultural products deteriorate, and the spread of certain pat hogenic bacteria from rotten 
produce is a serious health concern for Indonesia. In the absence of Indonesia's coordination of 
imports with domestic harvest times, stockpiles of rotting fresh horticultural products are likely to 
result in serious public hea lth threats. Indonesia is taking a proactive approach to protecting its 
population from disease with this measure.  
27. With respect to Indonesia's end -use limitations, this measure is necessary for several 
reasons: (i) to protect public morals; (ii) to pro tect human, animal, or plant life or health; and (iii) 
to secure compliance with laws and regulations not inconsistent with the GATT 1994. This measure 
is necessary to protect public morals as it protects the people of Indonesia from horticultural 
products  that do not conform to the religious beliefs of the vast majority of its population, i.e., the 
Halal requirements. While most Halal requirements pertain to the production and consumption of 
animal products, there are also strict requirements for storage a nd transportation that apply to all 
food products. This measure is also necessary to protect human, animal, and plant life or health, 
and to secure compliance with Indonesia's food safety requirements. By limiting the distribution 
channels available to cer tain imports, Indonesian customs and health officials with limited 
resources are better able to track the origin of products that contain potentially pathogenic 
bacteria and therefore reduce the spread of such bacteria into the food supply of the general 
public.  
28. As the above examples illustrate, to the extent that any of the challenged measures are 
inconsistent with Indonesia's obligations under the WTO agreements, which we submit they are 
not, are nonetheless justified under the general exceptions inc luded in Article XX of the 
GATT  1994.  
E. The Challenged Measures Are Not Inconsistent With Article 3.2 Of The 
Agreement On Import Licensing Procedures  
29. As an initial matter, Indonesia’s import licensing regime is not inconsistent with Article 3.2 of 
the Agreement on Import Licensing Procedures because: (i) the challenged measures are outside 
the scope of Article 3.2 and (ii) they are not trade -restrictive.  
30. An automatic import licensing system cannot  be inconsistent with Article 3.2 of the Import 
Licensing Agreement because such measures are outside the scope of Article 3.2. Indonesia's 
import licensing regime is automatic (i.e. not "discretionary") and is, therefore, outside the scope 
of Article 3 of the Import Licensing Agreement. The Complainants ha ve failed to demonstrate that 
any importer that has met all of the legal requirements of Indonesia's import licensing regime has 
ever been denied an import license. Any importer that meets the clearly -defined legal 
requirements is automatically granted an import license by Indonesian authorities. MOT 71/2015 
and MOA 86/2013 are the controlling regulations for Indonesia's import licensing regime for 
horticulture products. There is no discretion granted to the agency under either regulation to reject 
an appli cation has met all the published legal requirements.8 
31. Further, because Indonesia's import licensing regime is applied in a manner that does not 
produce trade -restrictive effects, it is expressly  permitted  by Article 2.2 of the Agreement on 
                                                
8 In 2013 -2015, no applications that fulfilled all legal requ irements were rejected by the regulating 
authority. For example, in 2015 there were 271 applications for RIPHs, and MOA issued RIPHs for all 271 
applications. In the same year, there were 161 applications to MOT for Import Approvals for horticulture 
produc ts, and MOT issued161 Import Approvals. With respect to animals, in 2015 there were 239 applications 
for Import Approvals, and MOT issued 239 Import Approvals. Also in 2015 there were 1,126 applications for 
Import Approvals related to animal products, and all 1,126 applicants were granted Import Approvals.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  Import Licen sing procedures. In the present case there is no causal link between the 
implementation of the import licensing regime and a declinein market share complained about by 
the Complainants, as would be expected in the case of a trade -restrictive measure. In fa ct, the 
market share of the Complainants with respect to certain food products has increased, as 
mentioned previously.  
32. The second sentence of Article 3.2 of Import Licensing Agreement provides that non -
automatic licensing procedures shall correspond i n scope and duration to the measure they are 
used to implement, and shall be no more administratively burdensome than absolutely necessary 
to administer the measure. Again, Indonesia's import licensing regime for horticultural products, 
animals, and animal  products has a slightly different scope and duration depending on whether the 
importers used the imported products for raw materials or if the importers are traders. For 
horticulture products, there are different provisions for importing fresh horticultur e products, 
processed horticulture products, or chilies and shallot. Similarly, for animals and animal products 
there are different categories with different provisions. The duration of validity for each import 
license can be different depending upon the p roducts. Therefore, Indonesia's import licensing 
procedures correspond in scope and duration to the measure used to implement.  
33. For the foregoing reasons, the Complainants' claims arising under Article 3.2 of the Import 
Licensing Agreement must fail.  
F. The Challenged Measures Are Not Inconsistent With Article III:4 of the 
GATT 1994  
34. In order to establish a prima facie  case of inconsistency with Article III:4, the complainant 
must demonstrate that (i) the imported and domestic products are "like"; (ii ) the challenged 
measures are "laws, regulations, or requirements" of a Member; (iii) the challenged measures 
affect the internal sale, offering for sale, transportation, distribution, or use of imported like 
products; and (iv) imported products are accord ed "less favorable" treatment than like domestic 
products. In this case, New Zealand has failed to establish a prima facie case that Indonesia’s 
import licensing procedure are inconsistent with Article III:4 of the GATT 1994 because first, the 
domestic pur chase requirement for animal products has never been used to prevent the issuance 
of an import license. Additionally, this requirement falls within the general exceptions included in 
Article XX of the GATT 1994 because it is an integral component of Indone sia's food safety and 
security plan.  
35. Second, the end use limitation for imported fresh horticultural products is necessary for the 
protection of human, plant, or animal life or health within the meaning of Article XX(b) and for the 
protection of publi c morals under Article XX(a) of the GATT 1994.  
36. Third, Indonesia's end use limitations for animal products – specifically, the restriction on 
sales of imported meat products in traditional Indonesian markets, applies uniformly to imports 
and domestic pr oducts. The measure does not, therefore, accord "less favorable treatment" to 
imports than to like domestic products within the meaning of Article III:4. Moreover, the measure 
is necessary for the protection of human, plant, or animal life or health within  the meaning of 
Article XX(b) and for the protection of public morals under Article XX(a) of the GATT 1994.  
IV. CONCLUSION  
37. For the foregoing reasons, Indonesia respectfully requests this Panel to reject the 
Complainants' claims in their entirety.  
 WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  ANNEX C -6 
SECOND PART OF THE E XECUTIVE SUMMARY OF THE ARGUMENTS OF IND ONESIA  
I. INTRODUCTION  
1. Indonesia's import licensing regime, including the measures challenged by the 
Complainants, is designed to address special circumstances that are unique to Indone sia. 
Indonesia is home to the largest Muslim population in the world, is spread across over 17,500 
islands, and is a developing country Member with many health and public safety concerns related 
to its food supply. Indonesia is challenged to provide a safe  and adequate food supply for its 
population for several reasons. First, Indonesia's majority Muslim population requires a reliable 
supply of Halal food, even when point -of-sale food labelling to direct consumers to Halal food is not 
available. Second, ens uring food safety is problematic in Indonesia give inadequate knowledge 
among consumers about proper food safety and food storage practices, especially among 
Indonesians living below the poverty line.  
2. Indonesia has adopted an import licensing regime tha t balances its responsibility to maintain 
a safe and adequate food supply with upholding its WTO obligations. Indonesia notes that the 
Complainants have failed to present a prima facie  case that Indonesia's import licensing regime for 
horticultural product s, animals, and animal products is inconsistent with Articles III:4 and XI:1 of 
the General Agreement on Tariffs and Trade ("GATT") 1994, Article 4.2 of the Agreement on 
Agriculture, or Article 3.2 of the Agreement on Import Licensing Procedures.  
II. FACTU AL INFORMATION FOR P URPOSES OF REBUTTAL,  ANSWERS TO 
QUESTIONS, AND COMME NTS ON ANSWERS PROVI DED BY COMPLAINANTS  
3. Indonesia's import licensing regime can be understood in terms of requirements for 
horticultural products and requirements for animals and a nimal products.1 The requirements for 
horticultural products are slightly different with respect to fresh horticultural products, chillies and 
fresh shallots, and processed horticultural products. The requirements for animals and animal 
products are differ ent with respect to products listed in the relevant regulation and those that are 
not listed. Regardless, they are clearly published and very straightforward. Indonesia's online 
application portal streamlines the process, making it easy for importers to me et all administrative 
requirements to obtain the appropriate import license for their products.  
4. As part of Indonesia's deregulation and de -bureaucratization initiatives, the Registered 
Importer ("RI") and Producer Importer ("PI") designations2 and the 8 0% realization requirement 
have been eliminated.3 The first of these initiatives was implemented in January 2015, and 
Indonesia's Ministry of Trade ("MOT")  has issued numerous MOT Regulations which are relevant to 
this case.4 The new MOT Regulations for ho rticultural products, animals, and animal products are 
aimed at liberalizing the import -licensing regime.5 In 2016 MOT enacted a new regulation 
(MOT  5/2016) to further liberalize the import licensing regime for the products at issue in this 
dispute. This o ngoing effort demonstrates Indonesia's commitment to its trading partners and to 
achieving greater trade liberalization.6 
                                                
1 Indonesia 's first written submission paras. 16 – 38. 
2 Indonesia 's responses to Panel questions, paras. 1 and 21.  
3 Indonesia 's responses to Panel questions,  para. 10.  
4 MOT Regulation 70/2015 on Import er Identification Number/ Angka Pengenal Impor ("API"), MOT 
Regulation 71/2015 on Import Provisions on Horticultural Products, and MOT Regulation 5/2016 concerning 
Export and Import Provisions on Animal s and Animal Products, See Exhibit IDN -39. 
5 See Exhibi t IDN -35. 
6 Indonesia 's second written submission, para. 4.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  5. The first package was implemented in January 2015, and the MOT has issued numerous 
MOT Regulations which are relevant to this case.7 The new MOT Regulations for horticultural 
products, animals, and animal products are aimed at liberalizing the import -licensing regime.8 
6. Indonesia wishes to reiterate that it has not, as alleged by the Complainants, "simply 
replaced trade -restrictive measures with equally (if not more) trade -restrictive measures in an 
attempt to stay "one step ahead of the law"".9 Indonesia has tried to address the concerns of the 
Complainants by revoking or amending measures that were alleged to be WTO inconsistent an d 
replaced them with measures that are fully consistent with Indonesia's legitimate interest in halal 
compliance, food safety and security, as well as for customs and import administration.10 
III. LEGAL ISSUES AND CLA IMS 
A. Proper interpretation of the ter ms "prohibitions or restrictions" under 
Article XI:1 of the GATT 1994 and Article 4.2 of the Agriculture Agreement  
7. Complainants have repeatedly argued that various aspects of Indonesia's import licensing 
regime for horticultural products, animals, and a nimal products are "prohibitions" or "restrictions" 
on imports within the meaning of Article XI:1 of the GATT 1994.11  
8. In essence, the Complainants argue that Article XI:1 and, by extension, Article 4.2, prohibits 
every conceivable "restriction" on impor ts – including any measure impacting trade that is not a 
duty, tax, or other charge. In their submissions to this Panel, the Complainants relied heavily on 
the Appellate Body report in Argentina – Import Measures  to support their interpretation. In that 
dispute the Appellate Body stated that the "limiting effect" of a "restriction" under Article XI:1 
"need not be demonstrated by quantifying  the effects of the measure at issue".12 After trying to 
saddle Indonesia with precisely the opposite position, Complai nants leap to the conclusion that 
they do not have to show any effect on trade at all.  However, a complainant must demonstrate 
that a measure has a limiting effect on the quantity or amount of importation itself. Just because 
Article XI:1 and Article 4.2 d o not require precise quantification of the trade effects of a challenged 
measure does not mean a complainant is excused from demonstrating that the measure has some  
effect on trade. These provisions are, after all, concerned with quantitative restrictions  and 
prohibitions.13 
9. Indonesia supports the position as stated in EU's third party submission, in which the EU 
urged this Panel to use caution when drawing the "line between those measures which have a 
limiting effect on the quantity or amount of import ation itself, and those measures which just have 
a negative impact on imports in any way".14 As the EU correctly explained, "the word 'quantitative' 
in the title of Article XI informs the meaning of 'prohibition' and 'restriction'". It "suggests that this 
Article refers only to those prohibitions and restrictions 'that limit the quantity or amount of a 
product being imported or exported'".15 This is consistent with the Appellate Body's explanation in 
Argentina – Import Measures  that "not every condition or burden placed on importation or 
exportation will be inconsistent with Article XI, but only those that are limiting, that is, those that 
limit the importation or exportation of products".16  
                                                
7 MOT Regulation 70/2015 on Importer Identification Number/ Angka Pengenal Impor ("API"), 
MOT Regulation 71/2015 on Import Provisions on Horticultural Products, and MOT Regulation 5/2016 
concerning  Export and Import Provisions on Animal s and Animal Products, See Exhibit IDN -39. 
8 See Exhibit IDN -35. 
9 See, e.g. United States ' first written submission , para. 6.  
10 Indonesia 's second written submission, para. 8.  
11 See, e.g. United States ' first writt en submission, paras. 151 -216, 255 -326; New Zealand 's first 
written submission, paras. 129-298; United States ' opening statement, paras. 11 -15; New Zealand 's opening 
statement, paras. 36 -39. 
12 Appellate Body Report, Argentina – Import Measures , para. 5.21 7. 
13 Indonesia 's second written submission, paras. 7 -8. 
14 EU third party submission, para. 35.  
15 EU third party submission, para. 18.  
16 Appellate Body Report, Argentina – Import Measures , para. 5.217.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  B. The relevance of Article XX to Article 4.2 of the Agriculture A greement  
10. As largely agreed by the Complainants, measures consistent with Article XX may "remedy" 
or "justify" a violation of Article XI:1 or Article III:4 of the GATT 1994, and that measures 
consistent with Article XX are excluded  from the scope of Art icle 4.2 of the Agreement on 
Agriculture. And as Norway correctly noted in its third party submission, "such measures would 
therefore not constitute a violation of Article 4.2".17 
C. The Complainants have failed to discharge their burden of proof  
11. It is a settled principle of WTO jurisprudence that the "burden of proof rests upon the party, 
whether complaining or defending, who asserts the affirmative of a particular claim or defense". 
The complaining party in any given case should establish a prima faci e case of inconsistency of a 
measure with a provision of the WTO covered agreements, before the burden of showing 
consistency with that provision or defending it under an exception is to be undertaken by the 
defending party.18 Thus, the Complainants must e stablish that the challenged measures are 
inconsistent with Indonesia's WTO obligations as a matter of law  before the burden of proof shifts 
to Indonesia to refute their claims. In the context of a GATT Article XI:1 claim, the burden of proof 
rests upon th e Complainants to establish a prima facie case that Indonesia's import licensing 
regime is inconsistent with that provision because it is an impermissible "restriction or prohibition" 
on trade – in a quantitative  manner.  
12. In the context of a claim under  Article 4.2 of the Agriculture Agreement, the exact scope of 
the Complainants' burden of proof is less apparent. The question before the Panel is whether it is 
possible to present a prima facie  case that Article 4.2 has been violated by a Member without 
offering any evidence or argumentation that the challenged measure is not justified under Article 
XX of the GATT 1994. The Complainants could not possibly make a prima facie  case showing that 
Indonesia has violated Article 4.2 without presenting at least so me evidence or argumentation that 
the challenged measures are not justified under Article XX of the GATT 1994. And without such 
evidence or argumentation, the Panel cannot – as a matter of law – rule in Complainants' favour 
under Article 4.2 of the Agreeme nt on Agriculture.  
D. Order of Analysis  
13. This Panel should begin its examination with an analysis of the Agriculture Agreement before 
moving on to the GATT 1994, the restrictions imposed by Article 4.2 of the Agreement on 
Agriculture are broader than th e restrictions imposed by Article XI:1 of the GATT 1994 and this 
order analysis offers the greatest opportunity to exercise judicial economy.19 
E. Indonesia's import licensing regime for horticulture products and for 
animals and animal products as a whole is automatic and therefore does 
not violate Article XI:1 of the GATT 1994, Article 4.2 of the Agreement on 
Agriculture or Article 3.2 Import Licensing Agreement  
14. Under the ILA, there are only two types of import licensing: automatic import licensing and  
non-automatic import licensing. The definition of automatic import licensing is provided in ILA 
Article 2, while the definition of non -automatic import licensing is provided in ILA Article 3. 
Indonesia submits that its import licensing regime for certain horticulture products and for certain 
animals and animal products meets all criteria of automatic import licensing as provided in 
Article  2 of the ILA.  
15. As provided in Indonesia's second written submission, Indonesia's import licensing for 
certain horti culture products and for certain animals and animal products implemented through 
RIPH/MOA -R and IAs have been granted in all cases pursuant to Article 2.1 of ILA.20 The 
Complainants have failed to submit any evidence indicating that an application of RIPH/ MOA-R or 
IA was rejected when all legal requirements are fulfilled. The only argument put forward by the 
                                                
17 Norway 's third party submission, para. 6.  
18 Panel Report, Argentina – Import Measures , para. 6.27 (citing Appellate Body Report, US – Wool 
Shirts and Blouses , para. 14).  
19 Indonesia 's second written submission, paras. 39 and 41.  
20 Indonesia 's second written submission, para. 48.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  Complainants to demonstrate that Indonesia's import licensing is not automatic is that applications 
cannot be submitted on any working day prior to the  customs clearance of the goods.21 
16. In relation to the application window, according to the Complainant's broad interpretation of 
Article 2.2(a)(ii) of the ILA, an import license application must be accepted on any working day 
prior to customs clearance , with indefinite time. We strongly believe that this broad interpretation 
is incorrect. Article 1.6 of the ILA clearly acknowledges that an application window for import 
licensing application procedures is allowed under the ILA. Indonesia allows 15 workin g days 
(21 calendar days) for the application window to apply for RIPH for horticultural products, a 1 
month application window to apply for MOA -R for animal products, and a 1 month application 
window for IA applications. All applications for RIPH, MOA -R or IAs can be submitted online at 
INATRADE22 (Trade Licensing Services Using Electronic and Online System) and Rekomendasi 
Ekspor Produk Pertanian Tertentu  (Export Import Recommendation for Certain Agricultural 
Products) ("REIPPT"),23 as parts of Indonesia National Single Window ("INSW"). This system – 
including the published application windows – is consistent with Article 1.6 of the ILA.24 
F. Indonesia's import licensing regime for horticulture products and for 
animals and animal products is not a "quantit ative restriction" and 
therefore does not violate Article XI:1 of the GATT 1994 and Article 4.2 of 
the Agreement on Agriculture  
17. Indonesia's import licensing regime for horticultural products, animals, and animal products 
is completely automatic. The re levant agencies have no discretion to reject import applications 
that fulfil the legal requirements, which are publicly available and broadly communicated well 
before they are implemented. All applications can be submitted online and are processed within 
less than 10 working days. In fact, all complete applications submitted in the period of 2013 – 
2015, both for MOA -R and import approval from MOT were granted.25 Automatic import licensing is 
expressly permitted under Article 2.2(a) of ILA and therefore, it  is excluded from the scope of 
Article 4.2 of the Agreement on Agriculture and Article XI:1 of GATT 1994.26 
18. Even if this Panel determines that Indonesia's import licensing regime for horticulture 
products and for animals and animal products falls withi n the scope of Article 4.2 of the Agreement 
on Agriculture or Article XI:1 of GATT 1994, the design, architecture, and revealing structure of 
Indonesia's import licensing regime as a whole supports the conclusion that it is not a "quantitative 
restriction" . 
G. Indonesia's import licensing regime for horticulture products and for 
animals and animal products is not similar to a border measure and 
therefore does not violate Article XI:1 of the GATT 1994 or Article 4.2 of 
the Agreement on Agriculture  
19. A dete rmination that Indonesia's import licensing regime for horticultural products, animals, 
and animal products has similarity with one of the specific categories of measure listed in footnote 
1 cannot be made in the abstract. It necessarily involves a compara tive analysis and must be 
approached on an empirical basis.27 That analysis can be undertaken by comparing the measures 
at issue with at least one of the listed measures which, by definition, have characteristics different 
from the characteristics of an or dinary customs duty.28 
20. Indonesia disagrees with the Complainants' argument that it can be at the same time a 
"similar border measure" within the meaning of footnote 1. The Complainants have failed to 
discharge their burden of proof to demonstrate that Indonesia's import licensing regime even 
remotely shares the common "object and effect" of restricting volumes of imports or distorting 
                                                
21 Indonesia 's second  written submission , para. 51.  
22 http://inatrade.kemendag.go.id.  
23 http://reippt.pertanian.go.id.  
24 Indonesia 's second written submission, para. 65.  
25 In 2013 there was 1 IA out of 555 IA applications for horticultur al products and 8 IA out of 1440 IAs  
applications for animals and animal products that were rejected. These applications were rejected because the 
importers submitted incomplete and/or incorrect information in their applications.  
26 Indonesia 's second written submission, para. 67.  
27 Appella te Body Report, Chile — Price Brand System , para.163 . 
28 Appellate Body Report, Chile — Price Brand System , para.167 . WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- C-61 - 
 
  prices shared by the border measures listed in footnote 1 and also have failed to satisfy their 
burden of proof to expla in how an import licensing regime generally, and automatic import 
licensing specifically, can be at same time classified as import licensing and a "similar border 
measure" to those listed in footnote 1.  
H. Assuming arguendo  that Indonesia's import licensin g regime for 
horticulture products and for animals and animal products violates XI:1 of 
the GATT 1994 and Article 4.2 of the Agreement on Agriculture, it is 
justified under Article XX (a), (b) and/or (d) of the GATT 1994  
21. Under Article XX(a) Members are  granted broad discretion to determine their own public 
morals and to implement measures necessary for the protection of those public morals. Under 
Article XX(b), a Member may adopt a nonconforming measure that is "necessary to protect 
human, animal or pla nt life or health". Thus, where considerations of food safety and security, and 
animal and plant life and health are concerned, subparagraph (b) guarantees Members the ability 
to address these concerns in a nondiscriminatory manner that is not a disguised restriction on 
trade. Finally, the necessity contemplated under subparagraph (d) may arise from the logistical, 
economic, or administrative constraints that make customs enforcement nearly, if not actually, 
impossible without certain limitations that would  otherwise be prohibited by the GATT 1994.  
22. To the extent that any of the challenged measures are inconsistent with Indonesia's 
obligations under the WTO agreements, which Indonesia submits they are not, such measures are 
nonetheless justified under the  general exceptions included in Article XX of the GATT 1994.  
23. The chapeau of Article XX by its express terms addresses the manner in which a particular 
measure is applied.29 The chapeau has been considered to embody the recognition on the part of 
WTO Me mbers of the need to maintain a balance of rights and obligations between the rights of a 
Member to invoke an exception of Article XX with the substantive rights of the other Members 
under GATT 1994.30 In the present case, Indonesia's import licensing regi me complies with the 
requirements of the chapeau of Article XX since it does not constitute arbitrary or unjustifiable 
discrimination, nor does it amount to a disguised restriction of international trade.  
24. Indonesia submits that its import licensing reg ime does not result in discrimination, as the 
same legal, technical and administrative requirements are applied on all trading partners importing 
into Indonesia. However, the fact that customs enforcement measures understandably do not 
apply to domestic pr oducts as they are, by definition, border measures. However, for halal 
assurance as well as for food safety concerns, Indonesia applies these requirements on a 
non-discriminatory basis. Indonesia has also fulfilled the third element in proving that it is n ot a 
disguised restriction as Indonesia implements its regulations in a transparent manner. There is no 
lack of transparency as Indonesia publishes all the requirements and all responses to applications.  
25. The specific measures challenged by the Complain ants are justified under one or more 
subparagraphs to GATT Article XX, to wit:  
The application windows and validity periods for import licenses are justified under 
Article  XX, subparagraphs (b) and (d);  
The importers' self -selected license terms (inclu ding port of entry and type of product) are 
justified under Article XX, subparagraphs (b) and (d);  
The 80 per cent realization requirement (which is no longer in effect) is justified under 
Article XX, subparagraphs (b) and (d);  
The Indonesian harvest p eriod limitations are justified under Article XX, subparagraphs (b) 
and (d);  
The storage ownership and capacity requirements are justified under Article XX, 
subparagraphs (a), (b), and (d);  
                                                
29 Appellate Body Report, US – Gasoline , p. 22.  
30 Appellate Body Report, US – Shrimp , para. 156.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
-C-62 - 
 
  The reference price systems for chilli and fresh shallots for consumption and for beef are 
justified under Article XX, subparagraph (b);  
The six -month from harvest time requirement is justified by Article XX, subparagraph (b);  
The prohibition of certain beef and offal products, except in emergency circumstances, is 
justified under Article XX, subparagraphs (a), (b), and (d);  
The use, sale, and distribution limitations on imported bovine meat and offal are justified 
under Article XX, subparagraphs (a), (b), and (d);  
The domestic purchase requirement for beef is  justified under Article XX, subparagraphs 
(a) and (d);  
The goal of sufficiency of domestic production to fulfil domestic demand included in 
Indonesia's legislation is justified under Article XX, subparagraph (b); and  
Indonesia's import licensing regim es for horticultural products and for animals and animal 
products, as a whole, are justified under Article XX, subparagraphs (a), (b), and (d).  
I. The Reference Price System and Specified Time Period Requirements are 
Justified Under Article XI:2 of the GAT T 
26. Indonesia maintains a reference price system for the importation of chillies, shallots and 
beef as a tool to protect against harmful oversupply of these highly -perishable food items to 
prevent spoilage.  
27. Similarly, concerning the domestic harvest period limitation, the intention is to prevent 
oversupply of only certain fresh horticultural products that could have disastrous consequences. As 
Indonesia is largely an agricultural country, in certain periods of time, a particular agricultural 
product i s abundant in Indonesia.  
28. On the reference price system and domestic harvest period limitations, Indonesia notes that 
this system is not continuously in effect and is not automatically activated. When this system is 
indeed activated, it is always on a t emporary basis in response to an immediate crisis. Moreover, 
the reference price system for beef has in fact never  been activated. Thus, Indonesia submits that 
these requirements are also justified under Article XI:2(c)(ii) because they are necessary to 
remove a temporary surplus of certain horticultural products, animals and animal products in 
Indonesia's domestic market.  
J. Article 3.2 of the Agreement on Import Licensing Procedures  
29. Indonesia argues that its import licensing system is automatic, and t hus falls outside the 
scope of Article 3 of the ILA, as it only applies to non -automatic licenses. In this vein, the 
Complainants have failed to demonstrate that any importer that has met all of the legal 
requirements of Indonesia's import licensing regime  has ever been denied an import license.  
30. In the case that the Panel concludes that the regime is non -automatic, its implementation is 
in compliance with Article 3.2 of the ILA. The provision calls that the licensing procedures be no 
more administrative ly burdensome than absolutely necessary to administer the measure. 
Complainants have not demonstrated that any administrative inconveniences rise to the level of 
being "trade restrictive" or creating "distortive effects".  
K. Article III:4 of the GATT  
31. New Zealand claims that several measure are inconsistent with Article III:4 of the GATT, as 
it concerns "like" products, is a law, regulation or requirement affecting the internal sale, purchase WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- C-63 - 
 
  or use of bovine meat and offal,31 and it accords less favoura ble treatment to imported products 
than to the like domestic products.32 
32. The first claim is in regards to domestic purchase requirement for beef. However, the 
Complainant has failed to establish a prima facie case given that the requirement has never b een 
used to reject an import license application. Secondly, in regards to end -use limitations for animal 
products, the measure does not accord "less favourable treatment" to imports than to like 
domestic products within the meaning of Article III:4 as it a pplies uniformly to imports and 
domestic products. Thirdly, the end -use limitation for horticultural products falls under the scope 
and is necessary within the meaning of Article XX(a) and Article XX(b) of the GATT. As a result, 
there is no inconsistency w ith Article III:4 of the GATT.  
IV. CONCLUSION  
33. For the foregoing reasons, Indonesia respectfully requests this Panel to reject the 
Complainants' claims in their entirety.  
 
_______________  
 
 
                                                
31 New Zealand 's first written submissio n, paras. 401 -402. 
32 New Zealand 's first written submission, paras. 404 -408. WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- D-1 - 
 
  ANNEX  D 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  D-1 Executive summary of the arguments of Argentina  D-2 
Annex  D-2 Executive summary of the arguments of Australia  D-4 
Annex  D-3 Executive summary of the arguments of Brazil  D-9 
Annex D -4 Executive summary of the arguments of Canada  D-12 
Annex D -5 Executi ve summary of the arguments of the European Union  D-14 
Annex D -6 Executive summary of the arguments of Japan  D-17 
Annex D -7 Executive summary of the arguments of Korea  D-21 
Annex D -8 Executive summary of the arguments of Norway  D-22 
Annex D -9 Executive  summary of the arguments of Paraguay  D-25 
Annex  D-10 Executive summary of the arguments of Chinese Taipei  D-26 
 WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
-D-2 - 
 
  ANNEX  D-1 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF ARG ENTINA 
INTRODUCCIÓN  
 
1. Argentina considera que las medidas cuestionadas por los reclaman tes podrían afectar la 
comercialización de productos hortícolas que Argentina exporta a Indonesia, especialmente, 
productos frutales, lácteos, plantas y productos de floricultura y subraya la importancia de la 
correcta interpretación de las normas contenid as en el Acuerdo sobre la Agricultura y el GATT de 
1994.  
 
EL ARTÍCULO 4.2 DEL ACUERDO SOBRE LA AGRICULTURA  
 
2. Argentina enfatiza el valor de las disciplinas sobre acceso a los mercados consagrados en la 
Parte III del Acuerdo sobre la Agricultura, en parti cular el párrafo 2 del artículo 4 y su Nota y 
considera que la función de esa disposición es garantizar un marco de transparencia y 
previsibilidad para los exportadores de productos agrícolas.  
 
3. Asimismo Argentina recuerda, como señaló el Órgano de Apela ción, que "…el artículo 4 del 
Acuerdo sobre la Agricultura es el vehículo jurídico para exigir la conversión en derechos de 
aduana propiamente dichos de ciertos obstáculos al acceso a los mercados que afectan a las 
importaciones de productos agropecuarios [...]"1 y sostiene que los derechos de aduana 
propiamente dichos deben ser la única forma de protección en frontera.  
 
LAS MEDIDAS CUESTIONADAS Y SU CONSISTENCIA CON EL PÁRRAFO 2 DEL ARTÍCULO 4 
DEL ACUERDO SOBRE AGRICULTURA.  
 
4. Argentina considera que las  medidas que restringen la importación de productos bovinos y 
limitan la importación de esqueletos bovinos y cortes secundarios de carne, al constituir 
restricciones cuantitativas o medidas similares de frontera, podrían resultar incompatibles con las 
medidas enumeradas en la nota 1 del párrafo 2 del artículo 4 del Acuerdo sobre la Agricultura, 
dado que los importadores ven limitados el tipo y cantidad de producto a importar y complejizado 
su acceso al mercado.  
 
5. En segundo lugar, Argentina entiende que u na medida que dispone de ventanas de 
aplicación y periodos de validez para la importación de productos hortícolas, al establecer periodos 
temporales para la importación, puede condicionar la cantidad de productos a importar y esto 
puede afectar particularm ente importaciones de Miembros cuyos productos necesitan de largos 
tiempos de embarque para arribar a puerto importador.  
 
6. En este mismo tenor, Argentina nota que una medida que condicione el ingreso de 
mercadería al periodo de cosecha local puede ser si milar a una restricción cuantitativa de 
importación en tanto la restricción temporal de importación restringe la cantidad de productos que 
pueden ser importados en el curso ordinario de las operaciones comerciales. Argentina advierte 
especialmente respecto  de aquellas situaciones en las que el período de cosecha local fuese 
determinado de manera discrecional por la autoridad local.  
 
7. Adicionalmente, Argentina considera que los términos fijos de una licencia de importación 
por los cuales se establezca una  cuota especifica que el importador pueda importar durante un 
trimestre puede constituir una restricción cuantitativa o medida similar de frontera en los términos 
de la nota 1 del párrafo 2 del artículo 4 del Acuerdo sobre la Agricultura al limitar la cant idad de 
producto a importar en un determinado período. En ese mismo sentido, la facultad de vedar toda 
importación que exceda lo permitido en los términos fijos de la licencia de importación tiene el 
efecto de impedir el incremento de la cantidad de produc to a importar.  
 
                                                
 Original Spanish.  
1 Informe del Órgano de Apelación, Chile - Sistema de bandas de precios , párrafos 200 y 201.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- D-3 - 
 
  8. Argentina también estima que una medida que condicione la flexibilidad del importador al 
habilitar solamente la importación de determinado producto por un  determinado puerto puede ser 
considerada una restricción cuantitativa o medida si milar de frontera al tener un efecto 
condicionante y restrictivo que puede incidir no sólo en la cantidad de producto a importar, sino 
incluso en la decisión de hacerlo.  
 
9. Por otra parte, una licencia que exigiera un elevado porcentaje (80%) de realizac ión de la 
misma puede constituir una restricción cuantitativa o medida similar de frontera en los términos 
de la Nota 1 del párrafo 2 del artículo 4 del Acuerdo sobre la Agricultura dado que puede instar a 
los importadores a adoptar una actitud por demás c onservadora cuyo efecto sea el de limitar la 
cantidad de producto a importar.  
 
10. Asimismo, una medida que prohíba o restrinja el uso o venta del producto a importar según 
fines específicos determinados podría conformar una restricción cuantitativa o medi da similar de 
frontera inconsistente en los términos de la nota 1 del párrafo 2 del artículo 4 del Acuerdo sobre la 
Agricultura.  
 
11. Con respecto a una medida que exigiera a los importadores un requisito de compra 
domestica como contrapartida para import ar carne y productos cárnicos podría constituir una 
restricción cuantitativa o medida similar de frontera en los términos de la nota 1 del párrafo 2 del 
artículo 4 del Acuerdo sobre la Agricultura por cuanto desincentiva al importador que se ve forzado 
a comprar carne y productos cárnicos en el mercado doméstico limitando, en consecuencia, la 
cantidad de producto que puede ser importada.  
 
12. Adicionalmente, Argentina considera que una medida que establezca un precio de referencia 
de la carne por debajo del  cual no pudieran ingresar animales ni productos animales bovinos, 
puede constituir un precio mínimo de importación en los términos de la Nota 1 del párrafo 2 del 
artículo 4 del Acuerdo sobre la Agricultura. Análogamente, una medida similar aplicada a los 
productos hortícolas acarrearía las mismas inconsistencias.  
 
13. Así también, una restricción a la importación basada en la capacidad de almacenamiento 
puede constituir una restricción cuantitativa o similar medida de frontera y podría no ser 
consistente con el párrafo 2 del artículo 4 del Acuerdo sobre la Agricultura pues tal medida podría 
distorsionar el precio de los productos hortícolas importados y afectar la estructura de negocios y 
logística comercial, al imponer costos innecesarios a los importador es. 
 
14.  Argentina advierte que una medida que imponga como requisito de importación de 
productos hortícolas una fecha de cosecha de 6 meses previos a la importación sin distinguir 
siquiera entre los productos a importar ni sus condiciones de almacenamien to puede constituir una 
restricción cuantitativa o medida similar de frontera en los términos párrafo 2 del artículo 4 del 
Acuerdo sobre la Agricultura y su Nota 1 al tener como efecto el limitar el acceso del producto al 
mercado local.  
 
15. Por otra parte , Argentina entiende que una medida cuya naturaleza sea distinta de un 
derecho de aduana, impuesto u otra carga que prohíba o restrinja la importación de productos, o 
incluso tenga un efecto limitativo que afecte a la importación de productos propiamente d icha en 
función de los períodos de cosecha doméstica de determinados productos, podría configurar 
también una "restricción a la importación" en el sentido del Artículo XI:1 del GATT de 1994.  
 
16. Por último, Argentina ha señalado que medidas como las descr iptas, en caso de no 
encuadrarse como restricciones cuantitativas o como precios mínimos de importación, podrían, en 
su caso, encuadrarse bajo el criterio de "medidas similares en frontera". Por ello, en caso que el 
Grupo Especial considere que alguna de l as medidas cuestionadas comparte un número suficiente 
de características con al menos una de las categorías específicas de las medidas enumeradas en la 
nota 1 del párrafo 2 del artículo 4 del Acuerdo sobre la Agricultura, podría determinar que se trata 
de "medidas similares aplicadas en la frontera".  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
-D-4 - 
 
  ANNEX D -2 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF AUS TRALIA  
I. AUSTRALIAN INTERESTS  IN THIS DISPUTE  
1. Australia has both systemic and commercial concerns about Indonesia's trade restrictions on 
imports of horti cultural products, animals and animal products.  Agricultural products made up over 
48 per cent of Australian goods and services exports to Indonesia in 2014.  Indonesia is Australia's 
largest export market for cattle, and cattle and bovine meat products wer e Australia's second and 
fourth largest goods exports to Indonesia in 2014 respectively.  Indonesia is also an important 
market for Australian horticultural exports.  Bilateral trade in these products is important to 
Australian businesses, and to Indonesian businesses and consumers.  Removing limitations on this 
trade would be of benefit to both countries.  
 
2. Given our substantial trade interests in this dispute, Australia, Brazil, Canada and the 
European Union requested that the Panel exercise its discretio n to grant enhanced third party 
rights under Article 12.1 of the Understanding on Rules and Procedures Governing the Settlement 
of Disputes.  Australia considers the Panel would have been justified in granting the additional third 
party rights that were req uested, particularly given their limited and passive nature .  
 
II. APPLICATION OF IMPOR T LICENSING REGIME T O CATTLE  
3. Australia has been particularly affected by Indonesia's import licensing regime for animals 
and animal products as it is applied to cattl e. Under Indonesia's "positive list" of permissible 
animal and animal product imports, "Feeder cattle" with a m aximum weight of 350 kilograms  are 
the only type of live bovine animal permitted for importation.  Imports of "Ready to Slaughter 
cattle" are curr ently prohibited.1  
 
4. As is the case for other animals and animal products, importers of feeder cattle are subject 
to fixed licence terms, and are only permitted to import the quantity of cattle specified in their 
import approval.  The Indonesian Governme nt has regularly acknowledged that these fixed licence 
terms enforce an import quota – a maximum permissible volume of imports – on feeder cattle.  For 
the first quarter of 2016, for example, the Indonesian Government has announced an import quota 
of 200,00 0 head of cattle.2  
 
5. Quotas on feeder cattle imports are evidenced by a large number of media articles and 
public statements by Indonesian officials.3 In addition to imposing fixed limits on the number of 
feeder cattle that can be imported, quarterly im port quotas have imposed considerable uncertainty 
                                                
1 "Feeder cattle " are the only type of live bovine animal listed as permitted for import in Appendix 1 of 
the version of Regulation of the Minister of Trade Number 46/M -DAG/PER/8/2013 Concerning Provisions on the 
Import and Export of Animals and Animal Products  (MOT 46/2013) provided  by Indonesia. (Appendix 1, 
MOT 46/20 13 (Exhibit IDN -14).) While ready to slaughter cattle are listed as permitted for import in the 
complainants ' version of MOT 46/2013 (Exhibit JE -18), the Law of the Republic of Indonesia Number 41 of 
2014 Concerning Amendment of Law Number 18 of 2009 Conce rning Husbandry and Animal Health  (Animal 
Law Amendment) also requires that imported livestock "must be in the form of feeder ". (Article 1(11), Animal 
Law Amendment (Exhibit JE -5).) In addition, in September 2015, Indonesia issued Regulation of the Ministe r of 
Agriculture Number 48/Permentan/ PK.440/8/2015 Regarding Importation of Feeder Cattle and Production 
Heifer into the Territory of the Republic of Indonesia  (MOA 48/2015), which states that "importation of ready -
to-slaughter cattle is no longer applica ble", and does not include ready to slaughter cattle in the list of 
permissible imports in its Appendix. (Preamble, para. b, Appendix, MOA 48/2015 (Exhibit AUS -2).) 
2 Y. Winosa and D. Bisara, "Govt Relying on Rice, Sugar, Soybean, Cattle Imports to Plug Q1  Shortage ", 
Jakarta Globe , 1 January 2016, http://jakartaglobe.beritasatu.com/business/govt -relying -rice-sugar -soybean -
cattle -import s-plug-q1-shortage/ , accessed 4 January 2016 (Exhibit AUS -9). 
3 For example, New Zealand 's first written submission, para. 132; "Achieving self -sufficiency, 
government keep importing live cattle", Lensa Indonesia , 31 March 2015, 
http://www.lensaindonesia.com/2015/03/31/swasembada -daging -pemerintah -terus-impor -sapi-bakalan.html , 
accessed 16 September 2015 (Exhibit NZL -23); Reuters, ‘Indonesia may raise Q3 cattle import quota after 
evaluating supplies ", Investing.com , 15 July 2015,  http://m.au.investing.com/new s/commodities -
news/indonesia -may-raise-q3-cattle -import -quota -after-evaluating -supplies -1261, accessed 30 November 
2015 (Exhibit AUS -7). WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- D-5 - 
 
  and economic costs on importers and exporters.  Australian exporters have had to find alternative 
markets for cattle at short notice when quotas have been significantly lower than expected, and 
incur additio nal costs when quotas are not set until after the start of the quarter.4 Quarterly import 
quotas on feeder cattle have also led to reductions in supply and higher prices for Indonesian 
consumers.5  
 
III. INCONSISTENCY OF MEA SURES WITH WTO OBLIG ATIONS  
A. GATT 1994  ARTICLE XI:1 
6. Australia considers that each of the challenged measures that form part of Indonesia's 
import licensing regimes for horticultural products, and for animals and animal products, is clearly 
inconsistent with Article XI:1 of the Genera l Agreement on Tariffs and Trade 1994 (GATT 1994), 
which forbids "prohibitions or restrictions other than duties, taxes or other charges" on imports, 
whether through "quotas, import … licences or other measures".  
 
7. Indonesia's import licensing regimes in clude outright prohibitions  on imports of certain 
products, including ready to slaughter cattle and certain types of bovine offal and secondary cuts, 
through Indonesia's positive list of permissible imports of animals and animal products.  They also 
include  prohibitions on imports of fresh horticultural products harvested more than six months 
previously, and on animal products that have been stored for more than three or six months 
between slaughter and arrival in Indonesia.  These bans on imports of particul ar products are 
clearly "prohibitions" on the import of a product within the meaning of Article XI:1, defined as a 
"legal ban on the trade or importation of a specified commodity".6  
 
8. Indonesia's import licensing regimes also include prohibitions on imp orts of certain products 
in certain circumstances . These include prohibitions on imports of:  
(a) food and agricultural products when domestic production is deemed sufficient;  
(b) certain bovine secondary cuts and carcasses except by State Owned Enterpris es and 
Regional State Enterprises in the event of beef shortages due to a disease outbreak or 
natural disaster, or to control prices and prevent inflation;  
(c) bovine animals and animal products, and chilies and shallots, when the market price for 
these p roducts falls below a set reference price; and  
(d) horticultural products based on Indonesian harvest periods.  
  
9. These measures are clearly "prohibitions" on imports when the relevant circumstances are 
deemed to apply for each product.  Furthermore, the se measures are also "restrictions" on imports, 
which have been defined by the Appellate Body as measures that act as a "limiting condition"7 or 
have "a limiting effect"8 on imports.  Indonesia's prohibitions on imports in certain circumstances 
also create considerable uncertainty for importers and exporters as they do not know when the 
Indonesian Government will declare the relevant circumstances to exist, and therefore are unable 
to make business plans with any confidence.  The panel in Argentina – Import M easures confirmed 
that "uncertainties can constitute ‘restrictions' under Article XI:1 of the GATT 1994",9 as 
uncertainty "negatively impacts business plans of economic operators who cannot count on a 
                                                
4 New Zealand 's first written submission, para. 47; United States ' first written submission, para. 114; T. 
Allard, "Indonesia increases cattle permits amid soaring beef prices ", The Sydney Morning Herald , 11 August 
2015, http://www.smh. com.au/national/indonesia -prepares -to-increase -cattle -permits -amid-soaring -beef-
prices -20150810 -giw1xp.html  (Exhibit US -61); J. Nason, "Indo permit debacle: Exporters diverting cattle to 
other markets ", Beef Central , 9 July 2015,  http://www.beefcentral.com/live -export/indo -permit -debacle -
exporters -diverting -cattle -to-other -markets/ , accessed 14 January 2016 (Exhibit AUS -8). 
5 New Zealand 's first written submission, paras. 24 -25, Figure 1 and Figure 2; United States ' first 
written submission, para. 304.  
6 Appellate Body Reports, China –Raw Materials , para. 319 and Argentina – Import Measures , 
para. 5.217.  
7 Appellate Body Reports, China – Raw Materials , para. 319 and Argentina – Import Measures , 
para. 5.217.   
8 Appellate Body Reports, China – Raw Materials , para. 319 and Argentina – Import Measures , 
para. 5.217.   
9 Panel Reports, Argentina – Import Measures , para. 6.260.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  stable environment in which to import and who according ly reduce their expectations as well as 
their planned imports".10 
 
10. In addition, Indonesia's import licensing regimes include the imposition of numerical limits 
on imports . Import licences with fixed terms specify the quantity of each product that can b e 
imported in a given import period, and additional permits cannot be sought during that period.  
This effectively establishes a fixed numerical limit, or quota, for that import period and prevents 
importers from responding to any changes in the importing o r exporting market during an import 
period.  Explicit quotas are set for imports of feeder cattle, which are then enforced by assigning 
fixed quantities to each importer under the import approval system.  An annual quota system has 
been introduced for hortic ultural imports, which are also limited in each import period to the 
storage capacity owned by an importer.  These numerical limits clearly act as limiting conditions on 
imports and are "restriction s" contrary to Article XI:1.  
 
11. Furthermore, Indonesia's import licensing regimes include measures which affect the 
"competitive situation"11 of importers . Limited licence validity periods and application windows 
effectively prevent imports at the beginning and end of each import period, prevent long term 
planni ng and contractual arrangements, and impose additional costs on importing when the 
issuance of licences is delayed.  Eighty per cent realisation requirements have encouraged 
importers to limit the quantities in their import licence applications.  Rules preve nting the sale of 
imported meat products in modern and traditional markets, and importers from selling 
horticultural products directly to consumers and retailers, reduce the commercial opportunities for 
imported goods and impose additional distribution cos ts on imports.  
 
12. In addition to acting as a minimum import price, reference price rules also limit the ability of 
imports of bovine animals and animal products, and chilies and shallots, to compete with like 
domestic products on price.  Laws requiring op erators of markets to prioritise the sale of local 
horticultural products further affect the competitive position of imports.  Requirements for 
importers of bovine meat to purchase local beef require importers to substitute imports with 
domestic products, l imit imports according to the availability of local beef and increase the costs of 
importing.  The requirement for imported cattle to be fed for four months in Indonesia not only 
effectively prohibits the importation of ready to slaughter cattle (in conjunc tion with Indonesia's 
positive list licensing regime), but also places a restriction on the use of imported feeder cattle 
that affects their competitive position against local cattle.  These measures are clearly "restrictions" 
on imports which "create uncer tainties and affect investment plans, restrict market access for 
imports or make importation prohibitively costly",12 which the panel in Colombia – Ports of Entry 
held would have "implications on the competitive situation of an importer"13 contrary to the 
requirements of Article XI:1.  
 
13. Panels have consistently held there is no requirement for complainants to demonstrate "a 
causal link between the measure and its effects on trade volumes".14 The limiting effects of 
Indonesia's measures are evident in th eir design, structure and operation.  Furthermore, 
Indonesia's measures are part of a broader policy to restrict agricultural imports and promote food 
self-sufficiency, and should be considered in that context.   
 
14. Australia considers that all of these me asures operate individually as "quotas, import … 
licences or other measures" to prohibit or restrict imports contrary to Article XI:1.  Furthermore, 
Indonesia's import licensing regimes as a whole impose an even greater restriction on imports 
than their ind ividual components.  We therefore agree that the Panel should also consider the effect 
of these import licensing regimes as a whole, in which the various prohibitions and restrictions 
reinforce and amplify one another, and "contribute in different combinati ons and degrees … 
towards the realization of common policy objectives"15 of food self -sufficiency and the promotion of 
domestic production, similar to the situation in Argentina – Import Measures.16  
 
                                                
10 Panel Reports, Argentina – Import Measures , para. 6.260.  
11 Panel Report, Colombia – Ports of Entry , para. 7.240.  
12 Panel Report, Colombia – Ports of Entry , para. 7.240.  
13 Panel Report, Colombia – Ports of Entry , para. 7.240.  
14 Panel Report, Colombia – Ports of Entry , para. 7.252; see also Panel Report, Korea – Various 
Measures on Beef , para. 627.  
15 Panel Reports, Argentina – Import Measures , para. 6.228.  
16 Panel Reports, Argentina – Import Measures , para. 6.228.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  B. AGREEMENT ON AGRICUL TURE ARTICLE 4.2  
15. Indonesia's  measures, and its import licensing regimes as a whole, are "measures of the 
kind which have been required to be converted into ordinary customs duties" that are prohibited 
under Article 4.2 of the Agreement on Agriculture.  These individual measures and th e regimes as a 
whole are also "quantitative import restrictions … minimum import prices … and similar border 
measures" as identified in footnote 1 to Article 4.2 as specifically prohibited under Article 4.2.  
These measures are contrary to Article 4.2 as a result of the same limiting effects on imports that 
render them inconsistent with Article XI:1 of GATT 1994.   
 
16. Australia considers that a measure on agricultural imports that breaches Article XI:1 of the 
GATT 1994 will also breach Article 4.2, to the e xtent it is among those measures listed in footnote 
1.17 As all of Indonesia's measures have been challenged by the complainants as quantitative 
restrictions under both Article XI:1 and Article 4.2, it is appropriate to consider the consistency of 
Indonesi a's measures with Article XI:1 of the GATT 1994, as the more specific provision on 
quantitative restrictions, before considering their consistency with the broader provision in Article 
4.2. 
 
17. While Indonesia's reference price requirements do not impose additional duties, Indonesia's 
approach is actually more trade -restrictive than other minimum import price systems, by 
completely banning imports when the market price falls below a set threshold.  These requirements 
should therefore be considered minimum i mport prices or similar measures under Article 4.2, as 
well as quantitative import restrictions.   
 
C. GATT 1994 ARTICLE II I:4 
18. Australia agrees with New Zealand that Indonesia's requirement for importers of bovine 
animal products to purchase domestic be ef, and restrictions on the sale and distribution of 
imported animal and horticultural products, are also inconsistent  with Article III:4 of the 
GATT  1994, which provides that imported products "shall be accorded treatment no less 
favourable than that acco rded to like products of national origin in respect of all laws, regulations 
and requirements affecting their internal sale, offering for sale, purchase, transportation, 
distribution or use".  
 
D. AGREEMENT ON IMPORT LICENSING PROCEDURES  ARTICLE 3.2  
19. As Indonesia's import licensing procedures limit the time periods in which applications can 
be submitted and import licences are issued, they do not satisfy the definition of automatic import 
licensing procedures in Articles 2.1 and 2.2(a) of the Agreement on  Import Licensing Procedures.18 
20. To the extent the Panel considers that Indonesia's limited application windows and validity 
periods are non -automatic licensing procedures, they are also inconsistent with Article 3.2 of the 
Agreement on Import Licensing  Procedures.  As there is no underlying permissible restriction 
implemented by these licensing procedures, their trade -restrictive effects, including on long -term 
business planning and the flow of goods at the beginning and end of each import period, must b e 
considered "additional" and "more administratively burdensome than absolutely necessary".  
 
IV. AMENDMENTS TO INDONE SIA'S IMPORT LICENSI NG REGIMES  
21. Since the Panel's establishment, Indonesia's Minister of Agriculture has issued a new 
regulation governi ng the importation of animal products.19 Indonesia's Minister of Trade has also 
                                                
17 See Panel Reports, Korea – Various Measures on Beef , para. 762 and India – Quantitative 
Restrictions , paras. 5.238 -5.242.  
18 To qualify as automatic licensing under the Agreement on Import Licensing Procedures, 
Article  2.2(a)(ii) requires that applications "may be submitted on any working day prior to the cu stoms 
clearance of the goods ", and Article 2.2(a)(iii) requires that applications be approved "within a maximum of 10 
working days ". 
19 Regulation of the Minister of Agriculture Number 58/Permentan/PK210/11/2015  Regarding 
Importation of Carcass, Meat, and/ or its Derivatives into the Territory of the Republic of Indonesia , 7 
December 2015 (unofficial English translation) (MOA 58/2015) (Exhibit AUS -1). WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
-D-8 - 
 
  issued a new regulation on the importation of horticultural products.20 However, these new 
regulations do not alter the essential requirements of Indonesia's import licensing r egimes, which 
remain inconsistent with Indonesia's WTO obligations, and actually impose additional restrictions 
on imports.21  
 
22. Indonesia's regular amendments to its import licensing regimes should not enable it to avoid 
its WTO obligations.  Indonesia' s frequent amendments to its regulations over many years, often 
without notification and with no or limited opportunity for consultation with trading partners, have 
not reduced their WTO -inconsistencies.  These amendments have instead served to further incr ease 
uncertainty for Indonesian importers and consumers and overseas exporters, limiting the 
development of long -term trading relationships and deterring investment.   
 
V. ARTICLE XX OF THE GA TT 1994  
23. Australia does not agree with Indonesia's claims that  several of its measures can be justified 
under the exceptions in Articles XX(a), (b) and (d) of the GATT 1994, which allow for measures 
"necessary to protect public morals", "necessary to protect human, animal or plant life or health" 
or "necessary to sec ure compliance with laws or regulations which are not inconsistent with the 
provisions of this Agreement, including those relating to customs enforcement…".  Indonesia 
provides no evidence to support its claims that these measures are designed or "necessary " to 
achieve these objectives or that it has considered less trade -restrictive alternatives.  Nor has 
Indonesia demonstrated it has equivalent measures in place to address any similar alleged risks 
posed by like domestic products.  The Panel should therefore  conclude that these measures do not 
meet the criteria in the Article XX exceptions, and also amount to "an arbitrary or unjustifiable 
discrimination between countries where the same conditions prevail, or a disguised restriction on 
international trade", c ontrary to the chapeau of Article XX.  
                                                
20 Regulation of the Minister of Trade Number 71/M -DAG/PER/9/2015 Regarding Horticultural Product 
Import Pro vision,  28 September 2015 (MOT 71/2015) ( Exhibit JE -12). 
21 For example, MOT 71/2015 adds further restrictions on horticultural imports, including a formal 
annual quota setting process.  (Article 3, MOT 71/2015 ( Exhibit JE -12).) WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  ANNEX D-3 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF BRA ZIL 
1. Brazil welcomes the opportunity to present its views on some of the fundamental issues that 
were raised in these panel proceedings. In its Executive Summary Br azil will address four topics of 
systemic relevance referred to in this case.  
(i) The order of analysis of claims under Article XI:1 of the GATT 1994 and Article 4.2 of 
the Agreement on Agriculture  
 
2. Brazil does not take a position in this dispute regard ing which order of analysis the Panel 
should necessarily follow. Brazil would like to emphasize, however, two specific points related to 
this discussion. First, Brazil would like to recall that the existence of similarities between the two 
provisions – Article XI:1 of GATT 1994 and Article 4.2 of the Agreement on Agriculture – should 
not prevent the Panel from carrying out a separate analysis for each claim. Although both 
provisions deal with a general prohibition of resorting to unduly restrictions to trad e, there is a 
difference in scope between them that may require a different assessment by a Panel.  
3. In Chile – Price Band System , the Panel has already stressed this difference in scope when it 
ruled that "the 'restrictions other than' referred to in Art icle XI:1 of the GATT 1994 constitute a 
narrower category than the 'similar border measures other than' in footnote 1 to [Article 4.2 of] 
the Agreement on Agriculture"1. Being broader in scope, the measures listed in footnote 1 to 
Article 4.2 should not a priori  be considered as strictly equivalent to those within the meaning of 
Article XI:1.  
4. Second, in Brazil's view the Panel should be very cautious when considering the parties' 
suggestions to exercise judicial economy. In the current situation, the ex ercise of judicial economy 
could lead to a partial solution of the matter, which, in turn, may affect the ability of the DSB "to 
make sufficiently precise recommendations and rulings so to allow for prompt compliance by a 
Member"2.  
(ii) The standard for a ssessing an overarching measure  
 
5. Brazil considers important to reinforce that the combined interaction of different individual 
measures may constitute, on its own, a violation of the Covered agreements regardless of the 
specific impact of each constitu tive element of that overarching measure. In this context, such a 
measure is to be viewed as a single, self -standing "measure at issue" in the sense of Article 6.2 of 
the DSU, and the claims of inconsistency with WTO obligations should be scrutinized by th e Panel 
independently of, and in addition to, the analysis of claims regarding individual measures.  
6. In Brazil's view, the rulings on the claims regarding the individual measures do not 
necessarily resolve a priori the matter under dispute, as the combi ned effect of the individual 
elements could still result in restrictive policies inconsistent with WTO obligations, regardless of the 
specific impact of each individual measure. Brazil does not dispute that in order to determine the 
existence and functioni ng of an overarching measure, understood as a single, self -standing 
measure, it is important to scrutinize its constitutive elements and the interaction between them. 
Yet, this can only be assessed as "part of a holistic analysis" to be undertaken by the P anel, as the 
Appellate Body has confirmed.3 
7. The jurisprudence of Argentina – Import Measures  appears to be relevant to the current 
dispute. In that case, the Appellate Body upheld the Panel’s decision that, since the different 
measures at issue were fra med for the fulfillment of an official trade policy objective extensively 
                                                
1 Panel Report, Chile – Price Band System , para. 7.30.  
2 Idem. 
3 Appellate Body Report, Argentina – Import Measures , para. 5.126.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
-D-10 - 
 
  announced by public statements of high -ranking Argentine government officials,4 their combined 
operation could be considered an overarching measure.  
(iii) Import licensing regimes un der Article XI:1 of the GATT 1994 and Article 4.2 of the 
Agreement on Agriculture  
 
8. In Brazil's view, one of the key issues under discussion in the present dispute is precisely 
whether and how Article XI:1 of the GATT 1994 and Article 4.2 should inform t he analysis of a 
Member's import licensing regime. Both provisions are broad in scope and encompass 
"prohibitions" or "restrictions", which should not be maintained or resorted to by WTO Members. In 
Brazil – Retreaded Tyres , the Panel concluded that the te rm "prohibitions" in Article XI:1 means 
that "Members shall not forbid the importation of any product of any other Member into their 
markets."5 Thus, if any type of licensing procedure adopted by a Member impedes or bans the 
importation of any product from  another Member, then a prohibition in the sense of Article XI:1 is 
at hand.  
9. The term "restrictions" in Article XI:1 has also been interpreted in a broad manner. The 
Panel in India – Quantitative Restrictions  considered that there is a restriction if a measure 
imposes a "limiting condition" or a "limitation on action" in relation to imports6 and the Appellate 
Body in China  – Raw Materials  found that "restriction" refers to "something that has a limiting 
effect".7 As a consequence of the restriction, the importation will be "more onerous than if the 
condition had not existed, thus generating a disincentive to import."8 
10. For Brazil, it is clear from both the wording and purposes of this provision that import 
licensing regimes, automatic and non -automatic  alike, may fall under the purview of Article XI:1 of 
the GATT 1994, as long as they are applied in a manner that result in a prohibition or restriction 
on the importation of products. As the Panel in China – Raw Materials  indicated, it does not matter 
whether the import licensing regime qualify as "automatic" or "non -automatic", but rather whether 
this regime, by its design and structure, has a "‘limiting’ or ‘restrictive’ effect."9 
 
11. For Brazil, any "prohibition" or "restriction" on the importation may  be a violation of 
Article  XI:1 of the GATT 1994, as long as it may have "limiting effects on the importation."10 Thus, 
if the importation of the product is only allowed under certain conditions or even only to certain 
uses the relevant measure may fall un der the purview of Article XI:1.  
12. In light of the broad scope of Article XI:1, the fact that a specific measure does not totally 
prevent the imports from entering the market or does not encompass the application of prohibited 
additional duties11 does no t mean per se  that there is no violation of that provision. Likewise, a 
violation of Article XI:1 may occur even when there is no specific threshold established limiting 
imports or exports.  
13. In Brazil's view, the specific features of Indonesia's import licensing regime, as described by 
the Complainants in the present dispute, undoubtedly seem to impose, by "its design and 
structure", a legal ban or a limiting condition in relation to imports. Furthermore, many of the 
requirements in Indonesia's import li censing regime mentioned in the present dispute, such as 
limited application windows and validity periods, fixed license terms, realization requirements, 
domestic purchase requirements, and reference prices, seem to fall exactly in the category of 
WTO-inconsistent measures, constituting an excessive burden for the importers and consequently 
a disincentive to import. According to the panel in China – Raw Materials , the potential to limit 
trade is sufficient to constitute a "restriction" within the meaning of  Article XI:1 of the GATT.12 
14. As regards Article 4.2 of the Agreement on Agriculture, the Appellate Body in Chile – Price 
Band System  has stated that an "inconsistency with Article 4.2 can be established when it is 
                                                
4 Appellate Body Report, Argentina – Import Measures , para. 5.131.  
5 Panel Report, Brazil – Retreaded Tyres , para. 7.11.  
6 Panel Report, India – Quantitat ive Restrictions , para. 5.128.  
7 Appellate Body Report, China – Raw Materials , para. 319. 
8 Panel Report, India – Autos , para. 7.269.  
9 Panel Reports, China - Raw Materials , para. 7.915.  
10 Appellate Body Reports, Argentina – Import Measures , para. 6.363.  
11 Indonesia's first written submission, para. 154.  
12 Panel Reports, China – Raw Materials , para. 7.1081.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- D-11 - 
 
  shown that a measure is a border measu re similar to one of the measures explicitly identified in 
footnote 1."13 As previously indicated, Brazil believes that many of the measures challenged by the 
Complainants in the current dispute – related to Indonesia's import licensing regime – limit the 
access of the products at issue into the country's market and, as such, are covered by Article 4.2. 
They can actually be considered similar to the measures identified in footnote 1, constituting, as 
such, a violation of Article 4.2 of the Agreement on Agri culture.  
(iv) The requirements of Article XX of the GATT 1994  
 
15. For Brazil it is undisputable that WTO rules do not prevent its Members from adopting the 
measures necessary to protect human, animal or plant life, nor from protecting other legitimate 
policies objectives, as long as "such measures are not applied in a manner which would constitute 
a means of arbitrary or unjustifiable discrimination […] or a disguised restriction on international 
trade".14 This kind of balance can also be found in Articles  2.1 and 2.3 of the SPS Agreement, in 
Articles 2.1 and 2.2 of the TBT Agreement and in Article 3 of the TRIMs Agreement, among others.  
16. Given the central role of Article XX in ensuring the proper balance between WTO rights and 
obligations, it is also we ll established, from the very beginning, that in order to resort to the 
general exceptions established therein, the party invoking the provision has the burden of proving 
that it has fulfilled the conditions necessary for invoking the exception15, which ar e: first, whether 
the domestic measure in question is justified within at least one of the paragraphs of Article XX 
(paragraphs (a) to (j)); and second, whether the application of these domestic measures meets 
the requirements of the provision's chapeau .16  
17. As the Appellate Body has indicated, these exceptions "are not positive rules establishing 
obligations in themselves. They are in the nature of affirmative defenses. It is only reasonable that 
the burden of establishing such a defense should rest on the party asserting it."17 
 
18. Therefore, in the current dispute, it would be for Indonesia to present the necessary 
evidence to prove its arguments of defense under Article XX and demonstrate that: (i) its policy, in 
respect of the measures for which the  provision was invoked, fell within the range of policies 
designed to protect human, animal or plant life or health; (ii) the inconsistent measures for which 
the exception was being invoked were necessary to fulfil the policy objective; and (iii) the 
measu res were applied in conformity with the requirements of the introductory clause of 
Article  XX.18 
19. Brazil appreciates the opportunity to comment on the issues at stake in this proceeding and 
expects that the elements introduced above may assist the Panel  in examining the matter before 
it. 
 
                                                
13 Appellate Body Report, Chile – Price Band System , para. 171.  
14 Article XX of the GATT 1994. For example, this balance can be found in Articles 2. 1 and 2.3 of the 
SPS Agreement, in Articles 2.1 and 2.2 of the TBT Agreement, and in Article 3 of the TRIMs Agreement, among 
others.  
15 Panel Report, US – Underwear , para. 7.16. Brazil is aware that as a general rule of law, when 
initiating a dispute at th e WTO, the Complaining Member has the burden to establish a prima facie  case by 
presenting sufficient evidence to raise a presumption in favour of its claim. The amount of evidence required to 
establish the prima facie  case may vary and shall be determined  by the Panel on a case -by-case basis. Once 
the Panel is convinced the prima facie  case was established, then it is for both Parties to provide sufficient 
evidence/proof supporting their respective claims. Since Indonesia is invoking Article XX of the GATT  1994, it 
must adduce the necessary evidence to support its defense.  
16 Appellate Body Report, US-Gasoline , para. 22.  
17 Appellate Body Report, US – Wool Shirts and Blouses , page 16.  
18 Panel Request, US – Gasoline , para. 6.20.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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 ANNEX D -4 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF CAN ADA 
I. INTRODUCTION  
1. Canada is concerned about the issues in this dispute as a major exporter of animals, animal 
products and horticultural products, and on a system ic basis with respect to the interpretation of 
Articles XI:1 and XX of the GATT 1994 and Article 4.2 of the Agreement on Agriculture . 
2. Indonesia's measures, such as the domestic insufficiency condition for imports, strict 
application windows and short va lidity periods for import licences and end -use requirement can be 
assessed for consistency under both Article XI:1 of the GATT 1994 and Article 4.2 of the 
Agreement on Agriculture .  
II. PROHIBITIONS AND RES TRICTIONS UNDER GATT  ARTICLE XI:1  
A. Other Measure s 
3. Under Article XI:1 of the GATT 1994, Members are obliged not to impose prohibitions or 
restrictions other than customs duties, taxes or other charges. This obligation applies to 
prohibitions or restrictions made effective through, among other things, import licences or other 
measures.  
4. The term "other measures" has been interpreted as a broad residual category of measures 
that encompasses measures other than those that take the form of duties, taxes or other charges.  
Indonesia's measures, in particu lar the domestic insufficiency condition, strict application windows 
and short validity periods and end -use requirements are "other measures" within the meaning of 
Article XI:1.  
B. Prohibition or Restriction on Imports from another Member  
5. The meaning of the term "restriction" in Article XI:1 includes not only a measure that results 
in actual adverse effects on imports, but also a measure that, based on its design and structure, 
negatively affects the competitive opportunities for imported in market of the importing Member.  
6. Therefore, measures that restrict market access, create uncertainties and affect investment 
plans or increase transaction costs to an extent that creates a disincentive to import, constitute 
restrictions within the meaning of GATT  Article  XI:1. 
7. If Indonesia's measures have these types of effects on import quantities or competitive 
opportunities in the Indonesian market, those measures will constitute prohibited restrictions 
under Article XI:1.   
III.  THE NECESSITY TEXT U NDER GAT T ARTICLE XX IS A TW O-STEP TEST  
8. The necessity test, which is a common element in GATT Article XX(a), (b), and (d) is a two -
step test.  
9. First a panel must make a preliminary determination of necessity by weighing and balancing 
relevant factors such as:  the relative importance of the common interests or values that the 
measure aims to protect; the extent to which the measure contributes to the realization of the 
policy objective; and the trade -restrictiveness of the measure.   
10. Generally, the more impo rtant or vital the interests or values; the greater the contribution of 
the measure to the objective; and the less trade restrictive the measure is, the more likely it is 
that the measure will be found to be necessary.   WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- D-13 - 
 
 11. If this weighing and balancing r esults in a preliminary determination of "necessity", then this 
determination must be confirmed by comparing the measure in issue with a less trade restrictive 
alternative measure.  
12. In an assessment of Indonesia's measures under Article XX(a), (b) or ( d), the Panel should 
first make a preliminary determination of necessity by weighing and balancing the relative 
importance of the common interests or values that the measure aims to protect, the extent to 
which the measure contributes to the achievement of  the policy objective; and the degree of 
trade -restrictiveness of the measure.  Only if a preliminary determination of necessity has been 
made, should the Panel then check that determination by assessing the measure against a less 
trade -restrictive alternat ive measure. The measure should only be found necessary if a preliminary 
assessment of necessity has been made and there is no less trade -restrictive alternative measure 
that would make an equivalent contribution to the achievement of the objective.  
IV. ARTICLE 4.2 OF THE AGR EEMENT ON AGRICULTUR E: QUANTITATIVE IMPO RT 
RESTRICTION, DISCRET IONARY IMPORT LICENS ING, OR SIMILAR BORD ER MEASURES  
13. Under Article 4.2 of the Agreement on Agriculture , WTO Members are obliged not to 
maintain, resort to, or revert to a ny measures of the kind which have been required to be 
converted into ordinary customs duties.  
14. Footnote 1 to Article 4.2 provides examples of prohibited non -tariff measures, such as 
quantitative import restrictions and discretionary import licensing, a s well as a residual category of 
similar border measures other than ordinary customs duties.  If a Member adopts or maintains a 
non-tariff measure listed in footnote 1 that Member is in violation of Article 4.2.   
15. Following the approach in Turkey – Rice, Indonesia's domestic insufficiency condition should 
be assessed to determine if it constitutes a quantitative import restriction by prohibiting or 
restricting imports of specific products if the domestic insufficiency condition is not met.   
16. The domest ic insufficiency condition can also be assessed to determine if it constitutes an 
impermissible discretionary import licence by not providing any criteria for determining domestic 
insufficiency.  
17. If the domestic insufficiency condition is not determine d to be a quantitative import 
restriction or discretionary import licence, it can be assessed to determine if it is a "similar" 
measure by having a sufficient likeness or resemblance to a quantitative import restriction or 
discretionary import licence.  
18. Similarly, the strict application windows and short validity periods, and end -use 
requirements can be assessed to determine if they are quantitative import restrictions or "similar" 
measures by having a limiting effect on the quantity of imports.    WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
-D-14 - 
 
 ANNE X D-5 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF EUR OPEAN UNION  
I. ARTICLE XI:1 OF THE GATT 1994  
1. Article XI:1 of the GATT 1994 contains one of the fundamental principles of the GATT/WTO 
legal system,1 the general prohibition of quantitative restrictions.  
2. Article XI:1 foresees the elimination of import and export restrictions or prohibitions other 
than duties, taxes or other charges.  
3. The Appellate Body has relied on a definition of the term "prohibition" as a "legal ban on the 
trade or importation of a specified commodity".2 
4. In the same disputes, the Appellate Body referred to the term "restriction" as "'[a] thing 
which restricts someone or something, a limitation on action, a limiting condition or regulation' 
and, thus, generally, as something that h as a limiting effect".3 
5. The use of the word "quantitative" in the title of Article XI suggests that this Article refers 
only to those prohibitions and restrictions "that limit the quantity or amount of a product being 
imported or exported".4 "This provi sion […] does not cover simply any restriction or prohibition".5 
So the word "quantitative" in the title of Article XI informs the meaning of "prohibition" and 
"restriction". The Appellate Body underlines that it must be a prohibition or restriction "on th e 
importation … or on the exportation or sale for export". In the view of the Appellate Body, " not 
every condition or burden placed on importation or exportation will be inconsistent with Article XI, 
but only those that are limiting, that is, those that li mit the importation or exportation of 
products".6 The European Union shares the Appellate Body's understanding that the impact of a 
restriction "need not be demonstrated by quantifying the effects of the measure at issue". Rather, 
the "design, architecture , and revealing structure … considered in its relevant context"7 should in 
the view of the European Union reveal a discernible quantitative dimension, in the form of a 
limiting effect on the quantity or value of a product being imported/exported.  
6. In ass essing whether the measure at issue is consistent with Article XI:1, a substance over 
form approach should be taken.8 This implies that such a restriction can be imposed de jure  or de 
facto.9 
7. In the view of the European Union, Indonesia operates a set o f measures which – in 
different forms - are inconsistent with Article XI:1 of the GATT 1994. Some of the measures 
constitute outright prohibitions. Some other measures by Indonesia prohibit imports of certain 
products under certain circumstances. Some of t he Indonesian measures impose numerical limits 
on imports. In the view of the European Union, all these three types of measures clearly are 
"prohibitions" or, respectively, "restrictions" for the purposes of Article XI:1. Yet another type of 
measures affec ts the competitive situation of importers. These are also inconsistent with 
Article  XI:1 to the extent that they have a discernible quantitative dimension , in the form of a 
limiting effect on the quantity or value of a product being imported/exported.  
                                                
1 Panel Report, Turkey – Textiles, para. 9.63.  
2 Appellate Body Reports, Argentina – Import Measures , para. 5.217, referring to Appellate Body 
Reports, China – Raw Materials , para. 319 (quoting Shorter Oxford English Dictionary, 6th edn, W.R. Trumble, 
A. Stevenson (eds.) (Oxford Univ ersity Press, 2007), Vol. 2, p. 2363).  
3 Appellate Body Reports, Argentina – Import Measures , para. 5.217, referring to Appellate Body 
Reports, China – Raw Materials , para. 319 (quoting Shorter Oxford English Dictionary, 6th edn, W.R. Trumble, 
A. Stevenson  (eds.) (Oxford University Press, 2007), Vol. 2, p. 2553).  
4 Appellate Body Reports, Argentina – Import Measures , para. 5.217, referring to Appellate Body 
Reports, China – Raw Materials , para. 320.  
5 Appellate Body Reports, Argentina – Import Measures , para. 5.217.  
6 Appellate Body Reports, Argentina – Import Measures , para. 5.217.  
7 Appellate Body Reports, Argentina – Import Measures , para. 5.217.  
8 Panel Report, India – Autos , para. 7.271.  
9 Panel Report, Argentina – Hides and Leather , para. 11.17.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- D-15 - 
 
 II. ARTICLE 4.2 OF THE A GREEMENT ON AGRICULT URE 
8. To the extent that a measure is one of a kind listed in footnote 1 to Article 4.2 of the 
Agreement on Agriculture, a border measure which imposes prohibitions or restrictions 
inconsistent with Article XI:1 of the GATT 1994 results also in a breach of Article 4.2.10 This 
parallelism between Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture, 
however, seems only adequate if Article XI:1 of the GATT 1994 is not being interpreted excessiv ely 
broad, i.e. if Article XI:1 is understood in a way so that not just any condition on importation is 
capable of falling under Article XI:1.  
9. If that is so and parallel considerations apply, then measures that are covered by Article  4.2 
may be distingu ished from those that are not by considering similar arguments as discussed 
above, with respect to Article XI:1 of the GATT 1994.  
III. IMPORT REGIME AS A W HOLE  
10. In order to determine whether five trade -related requirements operate in a manner such 
that they constitute a single  measure, the Panel in Argentina – Import Measures  took into account 
three factors: (a) the manner in which the complainants have presented their claims in respect of 
the concerned measures; (b) the respondent's position; and (c) th e manner in which these 
requirements operate and are related to each other, in order to determine whether they can be 
considered to be autonomous or independent.11 The Panel found that those requirements at issue 
constitute a single measure. The Panel's fi nding that these requirements are related to each other 
was primarily based on two considerations. The first of these considerations was that "in many 
cases for which there is evidence", the WTO Member has imposed a combination of requirements 
on economic operators.12 This, in the view of the Panel, was an indication for "a single global 
measure".13 Such an indication is in the view of the Panel not contradicted by the fact that the 
requirements can be imposed separately.14 The second key aspect for the Pan el was that "it 
appears that the requirements constitute different elements that contribute in different 
combinations and degrees – as part of a single measure – towards the realization of common 
policy objectives that guide [that WTO Member's trade policy ]. A separate consideration of each of 
the [restrictions] would therefore go against the nature of the measure, drawing an artificial 
segmentation that would not reflect accurately the way in which the measure operates in practice. 
Moreover, an individual consideration of the requirements would not capture some of the main 
features of the […] measure, namely, its flexibility and versatility."15 
11. Having considered the evidence submitted by the complainants and the respondent, the 
European Union notes that  the proclaimed objectives of Indonesia are those of food self -sufficiency 
and the promotion of domestic production. Each individual component of the Indonesian import 
licensing regime is permeated by this objective. The European Union agrees with the 
comp lainants16 and Australia as a Third Party17 that these import licensing regimes as a whole 
impose an even greater restriction on imports of animals and animal products on the one side, and 
on horticultural products on the other side, than their individual components. Drawing an artificial 
segmentation between the different elements applied to imports would not reflect accurately the 
way in which the import licensing regime operates in practice with respect to animals and animal 
products on the one side, and  with respect to horticultural products on the other side. In the view 
of the European Union, in addition to the individual requirements that form part of the regime, the 
Panel should also consider the effect of Indonesia's import licensing regime on impor ts of animals 
and animal products as a whole, and it should also consider the effect of Indonesia's import 
licensing regime on horticultural products as a whole.  
                                                
10 E.g. Panel Report, Korea – Various Measures on Beef,  para. 762.  
11 Panel Reports, Argentina – Import Measures , para. 6.222.  
12 Panel Reports, Argentina – Import Measures , para. 6.225.  
13 Panel Reports, Argentina – Import Measures , para. 6.227.  
14 Panel Report s, Argentina – Import Measures , para. 6.227.  
15 Panel Reports, Argentina – Import Measures , para. 6.228.  
16 New Zealand FWS, paras. 198 -202; 271 -277: US FWS, paras. 210 -216; 250 -254; 317 -326; 359 -364. 
17 Australia, Third Party Written Submission, para. 60.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
-D-16 - 
 
 IV. TRADE EFFECTS  
12. In paragraph 71 of its First Written Submission, Indonesia notes that th e "Complainants 
have not placed on the record any evidence that total import volumes have decreased as a result 
of the application windows or validity periods for import licences" (emphasis original). Indonesia 
makes similar such statements throughout its Submission. The European Union agrees with the 
Panels in Colombia – Ports of Entry  and Argentina – Import Measures  that "to the extent that a 
complainant is able to demonstrate a violation of Article XI:1 based on the measure's design, 
structure, and archi tecture, 'it would not be necessary to consider trade volumes or a causal link 
between the measure and its effects on trade volumes'".18 In the view of the European Union, the 
limiting effect of the Indonesian measures follows from the design of these meas ures. There was 
just no need for the complainants to provide evidence of the effect on trade volumes. This 
notwithstanding, the complainants have actually submitted substantial quantitative evidence.  
V. ARTICLE XX OF THE GA TT 1994  
13. Indonesia relies on t hree exceptions under Article XX of the GATT 1994, lit. (a), (b), and (d), 
in order to justify its measures.  
14. First, the "public morals" exception. Indonesia claims that in order "to prevent consumer 
deception regarding whether certain food products are  Halal"19, it limits "imported horticultural 
products to uses that naturally require some degree of labelling"20. The EU understands that the 
system works in the way that importers must transfer horticultural imports to a distributor, 
whereas distributors are allowed to sell them in traditional markets. If that is so, then Indonesia 
has not explained why these restrictions which apply specifically to importers should be justified. 
When it comes to imported animal products, the EU understands that Indonesia requires imported 
animal products to be Halal (with the exception of products from swine slaughter houses).21 On 
this basis, the EU wonders in what respect consumers should be deceived if those products are 
being sold in traditional markets.  
15. Second, In donesia claims that some of its measures are "necessary to protect human, 
animal or plant life or health", Article XX(b) of the GATT 1994. There is neither evidence that the 
Indonesian measures are "necessary", nor does Indonesia seem to have considered le ss 
trade -restrictive alternatives. Indonesia's references to Article XX(b) should be dismissed.  
16. Third, Indonesia relies on Article XX(d) for some of its measures. The European Union fails 
to see which particular law or regulation Indonesia claims that its measures are designed to secure 
compliance with. The European Union also considers that Indonesia's evidence and consideration 
of "necessity" and "reasonably available alternatives" is lacking.  
17. With regard to all three alleged grounds of justificat ions (lit. (a), (b), and (d)), it must also 
be noted that they fail the chapeau of Article XX because, in the view of the EU, the measures 
constitute part and parcel of the proclaimed food self -sufficiency policy, and are hence a disguised 
restriction on i nternational trade.  
                                                
18 Panel Reports, Argentina – Import Measures , para. 6.264, quoting Panel Report, Colombia – Ports of 
Entry , para. 7.252.  
19 Indonesia, FWS, para. 159.  
20 Indonesia, FWS, para. 159.  
21 Australia, Third Party Written Submission, para. 93.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- D-17 - 
 
 ANNEX D -6 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF JAP AN 
I. Measures with Limiting Effect s Under Article XI:1 of the GATT 1994   
 
1. Japan considers that Article XI:1 of the GATT 1994 does not impose a high threshold with 
respect to the li miting effects that a measure must have in order to constitute a "restriction ". 
Rather, a measure may be found to have limiting effects when it limits competitive opportunities  
for imported products1 by limiting the opportunities for importation2. 
2. This understanding  is consistent with previous cases that have found limiting effects deriving 
from a wide range of perspectives and features of the measure at issue.  Such features are not 
limited to explicit numerical limits on imports, but also include uncert ainties as to whether the 
imports are permitted, not allowing importers to import as much as they desire or need, etc.3  
3. The following three considerations also support a broad understanding of the concept of 
"limiting effects " and accordingly of the te rm "restriction " in Article XI:1 of the GATT 1994, as 
argued above.  First, it is a fundamental principle of the GATT 1994 that tariffs, to be reduced 
through reciprocal concessions and applied on MFN basis, are the sole preferred and acceptable 
means of bo rder protection, whereas the other types of trade -restrictive measures are prohibited 
unless expressly excluded under Article XI:2 or justified by the explicit exceptions in Article XX of 
the GATT  1994.4 
4. Second, the measures that are excluded from the p rohibition under Article XI:1 are 
specifically stipulated in Article XI:1 itself ("duties, taxes or other charges ") and in Article XI:2.  
These express exclusions suggest that all other measures with limiting effects were intended to be 
prohibited under Art icle XI:1.  
5. Third, application of a high threshold for the limiting effects could result in circumvention of 
GATT disciplines by allowing measures that limit the competitive opportunities for the imported 
products through limitations for importation, but  that have no justifiable underlying policy 
objectives. On the contrary, an import measure (including procedures or formalities to import) that 
has the effect of limiting opportunities for importation but serves legitimate public policy purposes 
(such as v erifying health/environmental risks of certain import products) could be justified under 
the general exceptions provided in Article XX of the GATT, as long as the other specific 
requirements under that provision (such as the chapeau or the necessity/relati on requirements 
under each subparagraph) have been met.  Thus, import restrictions which serve justifiable policy 
objectives could be properly addressed under the GATT disciplines, and it is not the case that 
legitimate trade -restrictions are unreasonably p rohibited by a broad understanding of the concept 
of limiting effects.  
6. With regard to the Complainants’  argument  that import licensing procedures used to 
implement an underlying restriction and that have an additional limiting or restrictive effect may 
be inconsistent with Article XI:1 of the GATT 1994 and Article 3.2 of Agreement on Import 
Licensing Procedures5, Japan understands that such import licensing procedures, which are 
inconsistent  with Article XI:1 of the GATT 1994, could be justified under Ar ticle XX (d) of the 
                                                
1 Panel Report,  Argentina – Hides and Leather , WT/DS155/R, February 16, 2001, para. 11.20 (emphasis 
added), citing Appellate Body Report, Japan - Alcoholic Beverages II , WT/DS8/10/11/AB/R, October 4, 1996, 
p.16 and Appellate Body Report, Korea -Alcoholic Beverages , WT/DS75/8 4/AB/R, January 18, 1999, paras. 119 -
120 and 127. This finding is referred to in Panel Report, Colombia – Ports of Entry , WT/DS366/R, April 27, 
2009, para.  7.236.  
2 Panel Report, Dominican Republic – Import and Sale of Cigarettes , WT/DS/302/R, November 26,  
2004, para. 7.261.  
3 Panel Report, Colombia – Ports of Entry , para. 7.240 , Panel Report, Argentina – Import Measures , 
WT/DS438/444/445/R, June 26, 2014, para. 6.474 (not r eversed by the Appellate Body).  
4 See, Appellate Body Report, India – Additional Dut ies, WT/DS360/AB/R, June 26, 2014, para. 159, 
noting also Panel Report, Turkey – Textiles , WT/DS 34/R, May 31, 1999, para. 9.63.  
5 United States ' first written submission, paras. 381 -384 and New Zealand 's first written submission, 
para. 420 (citing Panel Re port, China - Raw Materials , paras. 7.955 and 7.957.).  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
-D-18 - 
 
  GATT  1994, so long as their underlying measure is not inconsistent with the GATT, and to the 
extent the licensing procedures fulfill all the other requirements under the chapeau and 
subparagraph (d) of Article XX of the GATT 1994.  The a vailability of Article XX(d) in these 
circumstances also supports a broad understanding of the concept of "limiting effects " and 
therefore of the scope of measures prohibited as "restrictions " under Article XI:1.  
7. Japan would also like to make comments o n two specific arguments regarding the limiting 
effect by Indonesia.  First, Indonesia seems to emphasize that the limiting effect should be 
"quantitative "6 to the extent that it argues that the effects need to be quantified.7 Indonesia also 
seems to argue that demonstration of an actual trade effect is required to establish the limiting 
effect when it asserts that "the Complainants have not presented any evidence that the realization 
requirement has had an adverse impact on trade flows ".8 However, the Appel late Body clarified 
that "this limitation need not be demonstrated by quantifying the effects of the measure at issue; 
rather, such limiting effects can be demonstrated through the design, architecture, and revealing 
structure of the measure at issue consi dered in its relevant context ".9 Therefore, the need to 
establish trade effects under Article XI:1 has been clearly rejected.  Furthermore, Japan 
understands that it is enough for the measure to have effects on the opportunities for importation , 
and also en ough for the limitation on the quantity or amount to be demonstrated qualitatively 
through an examination of the measure’s structure.  
8. Second, Indonesia also argues that measures need to be "the direct result of government 
action, and not dictated by the  actions of private parties ".10 Japan observes, however, that 
measures with limiting effects constitute "restrictions " even when there are some actions of 
private parties, provided that the private actors are induced to take certain actions in response to 
the limitation on the opportunities for importation, given the measure’s design, architecture and 
structure.  In this case, the measures identified by the complainants are undoubtedly attributable 
to Indonesian government, and the actions of private parties alleged by Indonesia are the 
inevitable result caused because of the design, architecture, and revealing structure of these 
measures.  
II. Indonesia’s Invocation of Article XX of the GATT 1994  
 
9. A respondent’ s burden of demonstrating that the challenged m easure meets all of the 
requirements of Article XX11 includes not only the burden of invoking the provision, but also of 
substantiating its defense with argumentation and evidence sufficient to make a prima facie 
case.12 Japan wonders  whether what Indonesia presents in its first written submission regarding 
Article XX is sufficient to establish a prima facie  case, and to overcome Indonesia’s ultimate 
burden under Article  XX. Indonesia effectively makes only passing references to Article XX, without 
providing specific argumentation on the elements that it must establish under that provision.   
10. Indonesia ’s invocation of subparagraphs (a), (b) and (d) lacks specificity. For example, 
Indonesia does not identify the GATT -consistent laws or regulations with which  the challenged 
measures allegedly seek to secure compliance in accordance with subparagraph (d).   
                                                
6 Indonesia's  first written submission, para. 116. 
7 Indonesia's first written submission, para s. 135, 152, 156 and 165 . 
8 Indonesia's  first written submission, para.141.  See also, para. 161.  
9 Appellat e Body Report, Argentina – Import Measures , para. 5.217.  
10 Indonesia 's First Written Submission, para.119.  
11 See e.g., Appellate Body Report, US – Gasoline , pp. 22 -23; Appellate Body Reports, US – Shrimp 
(Thailand) /US – Customs Bond Directive , para. 300.   
12 Appellate Body Report, US – Gambling , para. 323; Appellate Body Reports, US – Shrimp (Thailand) 
/US – Customs Bond Directive , para. 300;  Appellate Body Report, Thailand – Cigarettes (Philippines) , 
para. 180. 
 WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- D-19 - 
 
__________  11. Nor does Indonesia provide support for its allegation that the challenged measures are 
"necessary ". Although the WTO case law has identified three factor s that must be weighed and 
balanced under the "necessity " test, namely, (i) the importance of the policy objective pursued, (ii) 
the trade -restrictiveness of the measure and (iii) the contribution of the measure to the policy 
objective13, Indonesia has not provided arguments or evidence that would allow an assessment 
especially for the latter two factors.  
12. For example, regarding the end use limitations, Indonesia claims justification under 
subparagraph (a) based on the alleged Halal regulations.  Indonesi a adds that an alternative 
measure of labelling is not feasible, and that the best way to achieve the objective is to limit the 
uses and the channels of distribution of imported products to the ones with a greater opportunity 
for sellers to provide reliabl e information to the end use (e.g. listing food items on restaurant 
menus).14 However, the end -use requirement is highly trade -restrictive because it prohibits any 
direct transfer of any imported products to consumers and retailers regardless of whether the  
imported products actually are Halal -consistent or not, while there are no parallel restrictions on 
the channels for domestic products because of the assumption that the consumers are able to 
choose Halal -consistent foods properly without governmental int ervention in the market. 
Therefore, Japan has doubts whether the measure is "necessary " for the stated objective to 
prevent consumers’ misunderstanding on whether or not the food is Halal -consistent.  
13. Considering that the purpose of Article XX is not on ly to protect the right of a Member to 
pursue certain non -trade objectives, but also to balance this right with the duty of that same 
Member to respect the treaty rights of the other Members,15 Japan believes it is of fundamental 
importance that a Member in voking Article XX identifies the policy objective with sufficient 
specificity, and that it provides sufficient evidence and argumentation to confirm that the measure 
is necessary to achieve the specifically identified objectives by weighing and balancing t he above -
mentioned factors, and does not constitute a means of arbitrary or unjustifiable discrimination or a 
disguised restriction on international trade.  
III. Indonesia’s Arguments based on the developing country status or its 
limited resources  
 
14. Indonesia refers several times to its status as a developing country and its limited 
resources, particularly in the context of its invocation of Article XX for the purpose of the 
justification of its measures.16 However, there is no basis to apply Article XX mo re flexibly or to 
relax the burden of proof because of the limited resources or a developing country status of a 
Member who invokes the defense.  Rather, the Appellate Body has recognized that, in the context 
of the assessment of "necessity ", a Member’s cap acity may be relevant in considering whether an 
alternative measure is reasonably available.17 Thus, in the context of Article XX of the GATT 1994, 
a developing country status and its limited resources could be properly addressed and taken into 
account in w eighing and balancing the relevant factors and the burden to prove the satisfaction of 
the requirements of Article  XX should not be lowered by a mere invocation of a developing country 
status.   
15. Japan also notes that Indonesia puts particular stress on its limited financial, human, and 
other resources.18 In this respect, Japan agrees with Australia that "[Indonesia’s] explanation 
would suggest that these measures are designed to serve a resource allocation purpose ", and 
"WTO -consistent measures of enforce ment do not involve [an] onerous shifting of enforcement 
costs [to imported goods and retailers of imported goods] which ordinarily are borne by the 
Member’s public purse. "19   
                                                
13 Appellate Body Report, Korea  –Various Meas ures on Beef , paras. 162-165; Appellate Body Report, 
Brazil  – Retreated Tyres , para. 178. 
14 Indonesia's  first written submission, paras. 158 -159 and 166.  
15 Appellate Body Report, US–Shrimp , paras. 156 and 159.  
16 Indonesia 's first written submission, paras.  4, 9, 136, 140, and 142.  
17 Appellate Body Report, Brazil – Retreaded Tyres , para. 171.  
18 Indonesia 's first written submissi on, paras. 4, 136, 140 and 142.  
19 Australia 's third party 's submission, paras.88 -89 (citing Appellate Body Report, Korea – Various 
Measures on Beef , para. 181) . WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
-D-20 - 
 
  IV. The Issue of "Moving Target " 
 
16. Japan shares the United States’  concern fo r a so-called "moving target " issue.  As 
"Indonesia, again and again , has made changes to import licensing regimes "20, the United States 
recall ed the goal of the WTO dispute settlement system, that is to say, "to secure a positive 
solution to a dispute ", and stressed that "Indonesia may not avoid scrutiny under the DSU of its 
import licensing regimes and constituent prohibitions and restrictions by continually amending or 
replacing its regulations ."21 
17. The Appellate Body observed, in Chile – Price Band Syst em, that legal instruments which are 
amended or replaced during  panel proceedings could be subject to findings by a panel, to the 
extent that the measure remains essentially the same.22 There may be other circumstances which 
may justify allowing panels to m ake findings on post -establishment measures.  This kind of flexible 
approach is useful in avoiding circumvention  and contributes " to secur[ing] a positive solution " to 
the dispute "23 and a "prompt settlement " of the matter.24 Thus, Japan considers that if the  
regulations which underlie the import licensing regimes at issue are amended or replaced by the 
respondent during  this panel proceeding and such import licensing regimes remain essentially the 
same, the panel could  properly address the measures.  
                                                
20 United States ' first written submission, para. 5. (emphasis added)  
21 United States ' first written submission, para. 6. (emphasis added)  
22 Appellate Body Report, Chile – Price Band System , WT/DS207/ AB/R, September 23, 2002, pa ra. 139. 
23 Article 3.7 of the DSU. (emphasis added)  
24 Article 3.3 of the DSU.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- D-21 - 
 
 ANNEX  D-7 
EXECUTIVE SUMMARY OF  THE ARGUMENTS  OF KOREA  
1.  Korea believes that WTO Members have the right to pursue legitimate domestic regulatory and 
public policy objectives including public health.  This right to regulate should be protected as a 
sovereign right of all Members, and is sufficiently reflected in the GATT 1994, as well as the 
Agreement on Agriculture.  
2.  At the same time, Korea is mindful of the other pillar of the WTO  trading system , which is to 
ensure that "trade flows as smoothly, predictably, a nd freely as possible."  Striking the right 
balance between pursuing public health objectives, on the one hand, and securing free trade, on 
the other, is important to resolving this dispute.   
3.  Indonesia employs what it says is a transparent and automatic  import licensing regime  that is 
consistent with Article XI :1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture . 
However, Korea notes  that under Indonesia ’s regulations, applications for import approvals can 
only be submitted when certain strict restrictions are met. Such restrictions include ownership of 
storage capacity and transportation equipment, and a six month window from the time of harvest  
to import fresh horticultural products.  We ask the Panel to consider, when reviewing Indonesia’ s 
claim that its import licensing regime is transparent , automatic  and WTO -consistent , the 
practicality and feasibility for applicants to meet these requirements.   
4.  Indonesia states that the reference price for chi llies and shallots , which prohibits the  
importation of these products when the market price in Indonesia falls below the threshold price,  
has little or no impact on the issuance of Horticulture Product  Import Recommendation s (HPIRs ), 
and accordingly falls outside the scope of Article 4.2 of the  Agreement on Agriculture.  In this 
regard, the Panel needs to once again make a factual determination on what effect the reference 
price has in determining the import quantity of chi llies and shallots into Indonesia.  Korea ’s 
assessment is that the referenc e price requirement acts not only as an outright  import ban when 
prices are low, but also as a trade deterrent and source of uncertainty for importers when prices 
are above the threshold.  
5.  Additionally, Indonesia states that the requirement it imposes on importers to indicate the port 
of entry is hardly onerous  – and thus falls outside the ambit of Article 4.2 of the Agriculture 
Agreement . Indonesia argues that importers are free to choose among multiple designated ports.  
However, our experience is that  the relevant measure, the Ordinance of the Ministry of Agriculture 
(No.42/Permatan/OT.140/6/2012) issued on September 2012 , has significantly reduced the 
number of available ports of entry – from the previous eight to the current three, in addition to 
one airport.  The Ordinance has also resulted in strengthened inspections and the adoption of a 
quota system at these ports of entry .  
6.  We agree with the European Union that Article XI:1 of the GATT 1994 does not bar any and 
every condition that burdens or negatively impacts imports.  At the same time, previous findings of 
the Appellate Body have stated that a measure may be in violation of Article XI:1 of the GATT 
even absent numerical limits on imports, such as when competitive opportunities for imported 
products have been adversely impacted.  In this case, Korea believes that the detrimental effects of 
Indonesia ’s measures on imports leave little room for ambiguity or doubt as to whether  any 
threshold set by Article XI:1 of the GATT has been met.  
7.  In sum,  we consider that the cumulative effect s of Indonesia ’s measures at issue – the limited 
time windows within which importers can apply for import permits, the restrict ion of port of entry 
options  for importers, the requirement to own storage capacity, the r eference price system – rise 
to the level of placing what are effectively quantitative restrictions on imports.  This, we believe, 
violates Article XI:1 of the GATT 1994 and, in turn, Article 4.2 o f the Agreement on Agriculture .WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
-D-22 - 
 
   
ANNEX  D-8 
EXECUTIVE SUMMAR Y OF THE ARGUMENTS  OF NORWAY  
I. THE GATT 1994 ARTICL E XI:1 AND FIXED LIC ENCE TERMS  
1. There is apparently no disagreement between the Parties to the dispute that the term 
"restriction" in the GATT 1994 Article XI:1 must be interpreted as something that has  a "limiting 
effect ", which has also been confirmed by numerous panels.1 Furthermore, the Parties seem to 
agree that the only measures excluded from the scope of the provision are those that take the 
form of "duties, taxes, or other charges".2  
2. Indonesi a states in its first written submission that "[m]easures are 'instituted or 
maintained' by a Member when they are the direct result of government action, and not dictated 
by the actions of private parties".3 Indonesia appears to perceive that the Complain ants argue that 
importers may not identify their own terms of importation in their import licence in line with the 
GATT 1994 Article XI:1.4 According to Indonesia, such "self -imposed terms of importation" are not 
measures "instituted or maintained" by Indo nesia, which is one of the requirements for something 
to qualify as a restriction within the meaning of Article XI:1.5 Indonesia’s argument appears to rely 
on the fact that the regime provides that importers initially define the terms by setting out in the ir 
import licence applications the specific type of products to be imported, the country of origin of the 
products, and the port of entry through which the products will enter Indonesia. In Norway’s view, 
this appears to be a misconstruction of the Complai nants’ arguments, and not pointing to the 
measure  at issue.  
3. As Norway reads the first written submissions of New Zealand and the United States 
respectively, their argument is that the fact that the licence terms, as set out in the Horticultural 
Product  Import Recommendations (RIPHs) and Import Approvals, are fixed, and may not be 
altered  during a semester that constitutes the restriction as any derogation from these terms is 
prohibited.6 In this regard, it is important to bear in mind that both the RIPH s and Import 
Approvals are issued with a validity period of six months. As stressed by the Complainants, 
previous panels have found that measures imposing the same kind of limits as those found in 
Indonesia’s import regime violate GATT 1994 Article XI:1.7 E.g., the panel in Colombia - Ports of 
Entry  concluded that restrictions limiting imports from Panama to two ports of entry in Colombia 
limit "competitive opportunities", and consequently had a limiting effect on imports arriving from 
Panama contrary to Ar ticle XI:1.8 Furthermore, in India – Autos , the panel found that a measure 
which in reality has the consequence that an importer would not be "free to import [as much] as 
he otherwise might" constituted a restriction.9 Hence, Norway agrees with the Complai nants that 
the fact that the importers are prevented from responding to market fluctuations and other factors 
that normally affect importation during the validity periods, as well as taking into consideration 
factors related to importation that they did no t predict at the start of the validity period, will have 
a limiting effect on trade. The measure challenged is therefore not " private parties determining 
import the terms of import licences , as put by Indonesia,10 but rather the measure limiting what 
impor ters may import.  
4. The importers being "free to alter their terms of importation from one license application to 
the next"11 does not change the fact that this limitation has a limiting effect in a set semester of 
                                                
1 See, e.g. Appellate Body Reports, China - Raw Materials , para. 319; Argentina - Import Measures , 
para. 5.217.   
2 New Zealand 's First Written Submission, para. 207; United States ' First Written Submission, 
para. 142; Indonesia 's First Written Submission, paras. 118 -120. 
3 Indonesia 's First W ritten Submisson, para. 119.  
4 Indonesia 's First  Written Submission, para. 137.  
5 Indonesia 's First Written Submission, para. 138.  
6 New Zealand 's First Written Submission, para. 221; United States ' First Written Submission, para. 161.  
7 New Zealand 's Firs t Written Submission, para. 227; United States ' First Written Submission, 
paras.  165-166. 
8 Panel Report, Colombia - Ports of Entry , para. 7.274.  
9 Panel Report, India – Autos , para. 7.320.  
10 Indonesia 's First Written Submission, para. 138.  
11 Indonesia 's First Written Submission, para. 139. WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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__________  six months. Moreover, one must also bear in mind that import opportunities as regards availability 
of products etc. may change from semester to another. It not given that what a company has the 
"desire and ability to export"12 at one point in time would also be desired and available many 
months l ater. In any event, this will be a restriction on trade contrary to Article XI:1 of the 
GATT  1994.  
II. THE AVAILABILITY OF THE GATT 1994 TO ART ICLE 4.2 OF THE AGRE EMENT ON 
AGRICULTURE  
5. From the outset, the chapeau of the GATT 1994 Article XX explicitly refers back to the GATT 
itself, by underlining that "nothing in this Agreement  shall be construed to prevent the adoption or 
enforcement" of the specific measures listed in the provision. However, the Appellate Body has 
held that Article XX could be invoke d as a defence in relation to non -GATT provisions as well.13 
6.  Certain covered agreements contain a cross -reference t o Article XX, such as the 
TRIMS  Agreement, which explicitly incorporates the right to in voke all exceptions  of the 
GATT  1994. In this reg ard, Norway notes that the panel in Raw Materials stated that "the legal 
basis for applying Article XX exceptions to TRIMs  obligations is the text of the incorporation of the 
TRIMs Agreement, not the text of Article XX of the  GATT 1994".14 Other covered ag reements 
include their own exceptions or provide for their own flexibilities, such as the GATS, TRIPS, the 
TBT Agreement and the SPS Agreement.  
7. In its first written submission, Indonesia invokes Article XX of the GATT 1994 as an 
exception to the Agreeme nt on Agriculture Article 4.2.15 According to Indonesia, this interpretation 
was confirmed by the panel in Chile – Price Band Systems .  
8. WTO case law provides limited guidance as regards the relationship between Article XX of 
the GATT 1994 and the Agreem ent on Agriculture, and Norway would welcome clarifications from 
the Panel on this issue. It is also a matter of importance as both Article XI of the GATT and 
Article  4.2 of the Agreement on Agriculture deal with quantitative restrictions.  
9. We note that  the Agreement on Agriculture contains neither general exceptions clauses nor 
a cross -reference to the GATT 1994 exceptions as in the TRIMS Agreement. We agree with 
Indonesia that footnote 1 to Article 4.2 provides guidance on the scope of the article. How ever, we 
do not necessarily read the footnote as providing for Article XX being a legal basis  for an exception 
that a WTO Member may invoke as such  to justify violations of Article 4.2. In Chile – Price Bands , 
the panel referred to footnote 1 of Article 4. 2 as "excluding from the scope of Article 4.2 those 
measures which Members are allowed to maintain in accordance with the provisions in GATT 1994 
laying down exceptions to the general obligations of GATT 1994"16. In light of this, it is in our view 
possibl e to interpret footnote 1 to clarify the flexibilities that exist in Article 4.2 itself. As measures 
covered by the exceptions provisions of the GATT 1994 are excluded from the scope  of Article 4.2, 
Article 4.2 does not impose an obligation for Members not  to resort to such measures. In other 
words, such measures would therefore not constitute a violation of Article 4.2.  
III. THE PRINCIPLE OF JUD ICIAL ECONOMY  
10. Indonesia requests that the Panel should exercise judicial economy with respect to claims 
under  Article XI:1 of the GATT 1994 if it finds no violation of Article 4.2 of the Agreement on 
Agriculture.17 The Appellate Body has noted that the principles of judicial economy "allows a panel 
to refrain from making multiple findings that the same measure is  inconsistent  with various 
provisions when a single, or a certain number of findings of inconsistency, would suffice to resolve 
the dispute".18 From a systemic perspective, we acknowledge that exercising judicial economy can 
                                                
12 Panel Report, India – Autos , para. 7.268.  
13 See, e.g., Appellate Body Report, China – Publications and Audiovisual Products, WT/DS363/AB/R, 
para 233.  
14 Panel Report, Raw Materials , para. 7.153.  
15 Indonesia 's Firs t Written Submission, paras. 61 -62. 
16 Panel Report, Chile – Price Band Systems , para. 7.71.  
17 Indonesia's First Written Submission, paras. 45 -46. 
18 Appellate Body Report, Canada – Wheat Exports and Grain Exports , para. 133.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
-D-24 - 
 
  also be a useful tool in addres sing challenges related to the comprehensive delays and heavy 
workload that the WTO dispute settlement system is facing.  
11. However, as stated by the Appellate Body, "[t]he principle of judicial economy has to be 
applied keeping in mind the aim of the di spute settlement system. This aim is to resolve the 
matter at issue and ‘to secure a positive solution to a dispute’".19 Hence, the doctrine of judicial 
economy does not permit a panel to refrain from addressing claims when this would lead to only a 
partia l resolution of the matter. Such failure would constitute false exercise of judicial economy 
and an error of law.20 Like Brazil in its third party submission,21 Norway points out that the 
difference in scope between Article XI of the GATT 1994 and Article 4.2 of the Agreement on 
Agriculture may require different assessments by a Panel of the two provisions.  
                                                
19 Appellate Body Report, Australia – Salmon , para. 223.  
20 Appellate Body Report, Australia – Salmon , para. 223; Appellate Body Report, Canada – Wheat 
Exports and Grain Exports , para. 133.  
21 Brazil 's Third Party Submission, para. 6.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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__________  ANNEX D -9 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF PAR AGUAY* 
1. Paraguay agradece al Grupo Especial la oportunidad de presentar sus puntos de vista en la 
presente controversia.  
2. La decisión de participar en calidad de tercera parte resulta principalmente del interés 
sistémico que tiene el Paraguay en cuanto a una correcta interpretación de las disposiciones 
invocadas por las partes reclamantes.  
3. En ese sentido y considerando el impacto de las medidas impugnadas sobre una gran 
cantidad de productos agrícolas, que constituyen además las principales exportaciones del 
Paraguay, nos referiremos, en primer lugar, al Artículo XI del GATT. En segundo lugar, 
come ntaremos brevemente la decisión del grupo especial sobre el pedido de ampliación de los 
derechos de los terceros.  
4. En lo relativo al Artículo XI del GATT, nos gustaría insistir en el rol crucial que cumple esta 
disposición para el sistema multilateral de  comercio, ya que establece una prohibición general en 
cuanto al uso de restricciones cuantitativas, debido a los efectos negativos que tienen este tipo de 
medidas, principalmente para los bienes agrícolas, al crear sistemas poco transparentes y con 
efecto s distorsivos para el comercio.  
5. Con el fin de asegurar una correcta interpretación y aplicación del Artículo XI del GATT, la 
jurisprudencia de la OMC ha establecido ciertos parámetros que nos gustaría recordar, tal como la 
interpretación amplia del térm ino "restricción", el hecho de que no es necesario demostrar una 
disminución real de las importaciones, así como la obligación de salvaguardar las oportunidades de 
competencia de los productos importados.  
6. El enfoque adoptado por grupos especiales en el  pasado se basó además en demostrar una 
infracción del Artículo XI del GATT teniendo en consideración el diseño, la estructura y la 
arquitectura de las medidas impugnadas.  
7. Desde la perspectiva del Paraguay, estos son algunos de los elementos que debería n guiar al 
grupo especial encargado de examinar la presente disputa.  
8. Con respecto al pedido hecho el 2 de diciembre de 2015, referente a la ampliación de los 
derechos de las terceras partes, Paraguay manifiesta su adhesión a los motivos expuestos por 
Australia, Brasil, Canadá y Unión Europea, tanto en su calidad de productor y exportador de bienes 
agrícolas, como por su condición de País en Desarrollo Sin Litoral, que aboga a favor de mejoras 
en acceso a los mercados y la aplicación de medidas en confor midad a las obligaciones resultantes 
de los acuerdos OMC.  
9. La aceptación de esta solicitud hubiese representado una oportunidad importante para 
equilibrar los derechos de las partes con la efectiva y significativa participación de los terceros, con 
miras  a permitir procedimientos de solución de diferencias más eficientes, sin incurrir en cargas 
adicionales para ninguno de los involucrados. Particularmente para Paraguay, puesto que también 
manifestamos nuestro interés de participar como tercera parte en la  disputa DS 484: Indonesia — 
Medidas relativas a la importación de carne de pollo y productos de pollo, y estamos evaluando 
participar en otros casos en los que tengamos un interés sustancial.  
                                                
* Original Spanish. Paraguay's oral statement is b eing considered as its executive summary.  
 WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
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  ANNEX D -10 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF CHI NESE TAIPE I 
1. The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, taking into account 
the restrictive  nature of Indonesia’ import measures for certain  fresh h orticultural products and in 
support  of the relevant claims made by the Complainants  in the ir first written submissions , 
considers  Indonesia’s import licensing measures  to be  inconsistent with (1) Article 4.2 of the 
Agriculture Agreement, (2) Article XI:1  of the GATT 1994 , (3) Article III:4 of the GATT 1994 , and 
(4) Article 3.2 of the Import Lic ensing Agreement . 
ARTICLE 4.2 OF THE A GREEMENT ON AGRICULT URE  
2. Article 4.2 of the Agreement on Agriculture prohibits Members from maintaining, resorting 
to, or reverting to any measures of the kind that have been required to be converted into ordinary 
customs duties. This obligation, as the Appellate Body Chile – Price Band System1 explained, 
means that any measures that were required to be converted from the date of entry into force of 
the WTO Agreement but were not, would be in violation of Article 4.2 .  
3. Thus, we are of the view that, as long as Indonesia’ s restrictive import licensing  measures 
for fresh h orticultural products  have not been included in its Tariff Schedules Section I -B of Part I, 
they should be considered in violation  of Article 4.2 o f the Agriculture Agreement . 
ARTICLE XI:1 OF THE GATT 1994  
4. Article XI:1 of GATT 1994 prohibits "prohibitions or restrictions" made effective through 
quotas, import or export licenses or other measures.  In the present case,  we consider  Indonesia ’s 
releva nt import licensing measures applying to certain fresh horticultural products to be 
inconsistent with GATT 1994 Article XI:1 for the following reasons:  
5. First, the import licensing measures  constitute trade "restrictions"  as they add unreasonable 
burdens  to the importers and effectively limit importation of the products. Previous case law 
reinforcing  this observation demonstrate s that the wording of Article XI:1 is comprehensive  and 
the scope of measures referred to in Article XI:1 is very broad.2  
6. Second, it has been established by WTO precedents3 that, even if a discretionary import 
licensing measure does not contain any  specific restrictive wordings on import volume or value, 
such a  measure  may still constitute  a de facto  restriction.  In this case, Indonesia permits imports 
of certain fresh horticultural products only when, and to the extent that, domestic supply of those 
products is deemed insufficient to meet  the demand . Otherwise, the imports are prohibited .4 Thus, 
Indonesia ’s measure clearly const itutes a restriction on imported products, even without explicit 
restrictive wordings.  
7. Finally , Indonesia , through the import licens ing measures, imposes restrictions, inter alia , on 
the port of entry  through which the products can be imported. In addit ion, Indonesia limits  the 
import licenses ’ application  windows and the length  of their effective periods. All of these 
measures  have significantly increased the  importers’ cost  of operati on, as well as negatively  
                                                
1 Appellate Body Report, Chile — Price Band System , paras 201, 206, 207 . 
2 Panel Report, India – Quantitative Restrictions , para. 5.128 ; Panel Report, India – Autos , 
paras.  7.269 -70; Panel Report, Dominican Republ ic – Import and Sale of Cigarettes , para. 7.261 ; see also 
Appellate Body Reports , Argentina – Import Measures , para. 5.217;  Panel Reports, Argentina – Import 
Measures , para. 6.455 . 
3 Panel Report, India – Quantitative Restrictions , paras. 5.130 -5.131. (emp hasis added) ; Panel R eport, 
Argentina – Hides and Leather , para. 11.17 ; GATT Panel Report , EEC–Import Restrictions , para. 31; GATT 
Panel Report , Japan –Semi-conductors , para. 118. 
4 Article 36B(1) of the Law of the Republic of Indonesia Number 18 of 2009 o n Animal Husbandry and 
Animal Health Law (Animal Law)  (Exhibit JE -4); Article s 14, 36(1) , 36(2)  and 36(3)  of the Law of the Republic 
of Indonesia Number 18 of 2012 Concerning Food (Food Law)  (Exhibit JE -2); Article s 30 and 101 of the Law of 
the Republic of  Indonesia Number 19 of 2013 Concerning Protection and Empowerment of Farmers (Farmers 
Law) (Exhibit JE -3). WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- D-27 - 
 
__________  impacting their competitive ness. The same c onclusion was reached by  the panel in Colombia – 
Ports of Entry .5 
ARTICLE III:4 OF THE  GATT 1994.  
8. Next, we consider Indonesia  to be maintaining an import regime that accords less favorable 
treatment to imported fresh horticultural products  than to domes tic like products. For one, 
importers are required to own storage facilities of appropriate capacity , and may only import 
volumes commensurate with that storage capacity .6 Furthermore, i mporter s also have to comply  
with restrictions on the use, sale and di stribution of the imported products.7 There are no similar 
restrictive measures on domestic like products.  
9. The precedents  show that requirements that imported and domestic like products be treated 
differently, such as a dual retail system for imports an d exports  or a requirement for imported 
products to be distributed through in -state wholesalers,  result in "treatment ... less favorable than 
that accorded to like products" from domestic producers, which is inconsistent with Article III:4.8 
Therefore, we are of the view that these measures create unfair conditions for imports, and are 
therefore inconsistent with Article III:4  of the GATT 1994 .  
ARTICLE 3.2 OF THE A GREEMENT ON IMPORT L ICENSING PROCEDURES  
10. In its first written submission,9 Indonesia argue d that the import licensing regime is an 
automatic one because any importer that meets the clearly defined legal requirements  would be  
automatically granted an import license , which makes the measures at issue fall outside the scope 
of Article 3.2 of the A greement on Import Licensing Procedures.  However, under these measures, 
certain  substantial requirements and restrictions are imposed on the importers  as pre -conditions to 
apply for Ministry of Agriculture ("MOA" ) Recommendations and Import Approval. For e xample, 
importers  are required  to demonstrate storage and transportation capacit ies. They are also 
required  to comply with certain requirements such as restrictions on the use, sale and distribution  
of the imported products . Importers not meeting the se requirements will not be able to apply  for 
MOA Recommendations and Import Approval. Further more, the granting of  MOA 
Recommendations and Import Approval  is dependent on the Indonesian authorities ’ determination 
on whether all of these requirements are satisfi ed. Based on the above, w e consider  all of these 
prerequisite requirements as constituting a  "non-automatic" import licensing procedure , result ing 
in the prohibition of and restrictions on imports.  
11. Moreover, to establish a violation of Article 3.2, the  EC – Poultry10 confirm s that there must 
be a causal link between trade distorting effect and the licensing  procedures and requirements,  
and in this case we can see that fresh horticultural  trade distortive effects are clearly attributable 
to Indonesia’s import licensing procedures.  
12. Lastly, Article 3.2 requires that a n on-automatic licensing shall be no more administratively 
burdensome than "absolutely necessary" to administer the measure.  Since the subject import 
licensing procedures are for quantitat ive restriction  purposes, as the panel noted in EEC – Import 
Restrictions ,11 we believe that Indonesia ’s import licensing  procedures are not consistent with the 
requirement of "absolutely necessary ", as provided under Article 3.2 of the Agreement on Import  
Licensing Procedures.  
CONCLUSION  
13. In conclusion, the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu 
supports New Zealand and the United States in their claim s against Indonesia’s import regime, and  
                                                
5 Panel Report, Colombia – Ports of Entry , paras. 7.273 -75.  
6 Article 8(e) of MOT 16/2013  (Exhibit JE -8), Article 8(2)(c) of MOA 86/2013  (Exhibit J E-15), 
Article  13(4) of MOT  40/2015 (Exhibit JE -11).  
7 Articles 7 and 15 of MOT 16/2013 (Exhibit JE -8). 
8 GATT Panel  Report , United States —Malt Beverages,  para 5.32; See also Appellate Body Report, Korea 
– Beef (US) , para 186(e).  
9 Indonesia 's first written submission, paras. 175 -176. 
10 Appellate Body Report, EC - Poultry , para 121.  
11 Panel Report , EC —Tariff Preferences , para 7.211.  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
-D-28 - 
 
  submits that its licensing measures fo r fresh horticultural product s are inconsistent with Article 4.2 
of the Agreement on Agriculture, Article XI:1 of the GATT 1994, Article III:4 of the GATT 1994 and 
Article 3.2 of the Agreement on Import Licensing Procedures.12 
 
 
__________________________ __ 
 
 
 
 
 
 
 
                                                
12 The Separate  Customs Territory of Taiwan, Penghu, Kinmen and Matsu 's third party submission , 
para 22. WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- E-1 - 
 
__________  ANNEX E  
IMPORT LICENSING PRO CEDURES FOR HORTICUL TURAL PRODUCTS  AND FOR ANIMALS AND 
ANIMAL PRODUCTS  
Contents  Page  
Annex  E-1 Flow chart concerning Indonesia's Import Licensing Procedures for Horticultural 
Products  E-2 
Annex E -2 Flow chart concer ning Indonesia's Import Licensing Procedures for Animals and 
Animal Products  E-3  
  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- E-2 - 
 ANNEX E -1  
__________  WT/DS477/R/Add.1 • WT/DS478/R/Add.1  
 
- E-3 - 
 
ANNEX E -2