WT/DS442/AB/R/Add.1  
 
5 September  2017 
(17-4703) Page: 1/41 
  Original: English  
 
  EUROPEAN UNION – ANTI -DUMPING MEASURES ON IMPORTS OF CERTAIN  
FATTY ALCOHOLS FROM INDONESIA  
WT/DS442  
AB-2017-1 
Report of the Appellate Body  
Addendum  
This Addendum contains Annexes A to D to the Report of the Appellate Body  circulated as  
document  WT/DS4 42/AB/R. 
 
The Notice s of Appeal and Other Appeal and the executive summaries of written submissions 
contained in this Addendum are attached as they were received from the participants and 
third participants. The content has not been revised or edited by the Ap pellate Body, except that 
paragraph and footnote numbers that did not start at one in the original may have been 
re-numbered to do so, and the text may have been formatted in order to adhere to WTO style. The 
executive summaries do not serve as substitutes  for the submissions of the partic ipants and 
third participants in the Appellate Body's examination of the appeal.  
 
 
_______________  
 
 WT/DS442/AB/R/Add.1  
 
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  LIST OF ANNEXES  
ANNEX A  
NOTICE S OF APPEAL  AND OTHER APPEAL  
Contents  Page  
Annex  A-1 Indonesia's  Notice of Appeal  A-2 
Annex A-2 European Union's  Notice of Other Appeal  A-4 
ANNEX B  
ARGUMENTS OF THE PAR TCIPANTS  
Contents  Page  
Annex  B-1 Executive summary of Indonesia's appellant's submission  B-2 
Annex  B-2 Executive summary of the European Union's  other appellant's submissio n B-10 
Annex  B-3 Executive summary of the European Union's appellee's submission  B-14 
Annex  B-4 Executive summary of Indonesia's appellee's submission  B-19 
ANNEX C  
ARGUMENTS OF THE THI RD PA RTICIPANTS  
Contents  Page  
Annex  C-1 Executive summary of the Uni ted States' third  participant's submission  C-2 
ANNEX D  
PROCEDURAL RULING  
Contents  Page  
Annex  D-1 Procedural Ruling of 13 June 2017  regarding additional procedures for the 
protection of business confidential information  D-2 
 
 
 WT/DS442/AB/R/Add.1  
 
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  ANNEX  A 
NOTICE S OF APPEAL  AND OTHER APPEAL  
 
Contents  Page  
Annex  A-1 Indonesia's Notice of Appeal   A-2 
Annex  A-2 European Union's Notice of Other Appeal  A-4 
 WT/DS442/AB/R/Add.1  
 
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  ANNEX  A-1 
INDONESIA 'S NOTICE OF APPEAL* 
Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Gov erning the 
Settlement of Disputes (DSU) and Rule 20 of the Working Procedures for Appellate Review, 
Indonesia hereby notifies the Dispute Settlement Body of its decision to appeal to the 
Appellate  Body certain issues of law and legal interpretation covered  in the Panel Report entitled 
European Union - Anti-Dumping Measures on Imports of Certain Fatty Alcohols from Indonesia 
(WT/DS442), which was circulated on 16 December 2016 (the "Panel Report"). Pursuant to 
Rules  20(1) and 21(1) of the Working Procedures for Appellate Review, Indonesia is 
simultaneously filing this Notice of Appeal and its Appellant's Submission with the 
Appellate  Body Secretariat.  
For the reasons to be further elaborated in its submission to the Appellate Body, Indonesia appeals 
and reque sts the Appellate Body to reverse the findings, conclusions, and recommendations of the 
Panel, with respect to the following errors contained in the Panel Report:1 
I. The Panel's finding under Article 2.4 of the Anti -Dumping Agreement  
1. The Panel erred in the interpretation and application of Article 2.4 of the 
Anti-Dumping  Agreement when finding that Indonesia had not demonstrated that, in its 
determinations in the anti -dumping investigation at issue in this dispute, the EU Commission had 
acted inconsistently with this provision by making an adjustment to the export price for one of the 
investigated producer/exporters to account for intra -company transfers between the producer and 
its closely affiliated sales entity.2  
2. In particular, and without prejudice to th e arguments developed in Indonesia's appellant's 
submission, the Panel incorrectly interpreted and applied Article 2.4 by not addressing Indonesia's 
arguments or taking into account the need to determine whether a closely affiliated sales entity is 
in a su fficiently close relationship to the producing entity to warrant being treated as a single 
producer/exporter for the purpose of its price comparison analysis.3 
3. The Panel also incorrectly interpreted and applied Article 2.4 by concluding that the 
relationsh ip between closely affiliated entities is not relevant to the determination of price 
adjustments and a fair comparison between export price and normal value under Article 2.4.4 
4. The Panel also incorrectly interpreted and applied Article 2.4 by concluding th at it is 
permissible to deduct the profits and indirect selling expenses of a closely affiliated sales entity 
from the export price under Article 2.4.5 
5. The Panel also incorrectly interpreted and applied Article 2.4 by finding that the deduction of 
certain indirect selling expenses and profit from the export price while no corresponding 
deductions were made from the normal value did not result in an asymmetrical, unfair comparison 
under Article 2.4.6 
6. The Panel also incorrectly interpreted and applied Article  2.4 by finding that it was 
permissible to make deductions from the export price for indirect selling expenses and, in 
                                                
* This Notice , dated 10 February 2017 , was circulated to Members as document WT/DS 442/5 . This 
document also reflects the correction contained in WT/DS442/5/Corr.1 , in English and Spanish only .  
1 Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for Appellate Review, this Notice of Appeal 
includes an i ndicative list of the paragraphs of the Panel Report containing the alleged errors, without prejudice 
to Indonesia's right to refer to other paragraphs of the Panel Report in the context of its appeal.  
2 Panel Report, paras. 7.96 -7.97, 7.160 -7.161, and 8.1 .b.i. 
3 Panel Report, paras. 7.54 -7.97. 
4 Panel Report, paras. 7.99 -7.111.  
5 Panel Report, paras. 7.112 -7.117.  
6 Panel Report, paras. 7.118 -7.125.  WT/DS442/AB/R/Add.1  
 
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  particular, profit on the basis of what the investigating authority considered to be reasonable for 
the sector at issue.7 
7. The Panel also incorrectly interpreted and applied Article 2.4 by dismissing the relevance of 
the Commission's decision to treat the producer and it's closely affiliated sales entity as a single 
entity for the purpose of identifying the starting price for the dumping ana lysis.8 
II. The Panel's duties under Article 17.6 of the Anti -Dumping Agreement and 
Article  11 of the DSU  
8. The Panel also acted inconsistently with Articles 17.6(i) and 17.6(ii) of the 
Anti-Dumping  Agreement, as well as Article 11 of the DSU, by reaching a con clusion that the 
measures at issue were consistent with Article 2.4 of the Anti -Dumping Agreement without first 
considering Indonesia's arguments and evidence.9 Specifically, the Panel acted inconsistently with 
Articles  17.6(ii) of the Anti -Dumping Agreeme nt, as well as Article 11 of the DSU, by failing to 
consider Indonesia's legal arguments and failing to interpret Article 2.4 in accordance with 
customary rules of interpretation of public international law, thereby failing to make an objective 
assessment of the matter, including the applicability and the conformity of the measures at issue. 
The Panel also acted inconsistently with Articles 17.6(i) and 17.6(ii) of the 
Anti-Dumping  Agreement, as well as Article 11 of the DSU, by applying the legal standard t hat it 
articulated without considering Indonesia's arguments and evidence, reaching a conclusion of 
WTO consistency on that basis and subsequently imposing on Indonesia the burden of disproving 
the Panel's finding.10  
9. The Panel also acted inconsistently wit h Articles 17.6(i) and 17.6(ii) of the 
Anti-Dumping  Agreement, as well as Article 11 of the DSU, by engaging in prohibited de novo 
review of the evidence, and by ignoring or summarily dismissing material arguments and evidence 
that favoured Indonesia's cas e.11  
III. Request for findings and completion of the analysis  
10. For the above reasons, Indonesia, therefore, respectfully requests the Appellate Body to 
reverse the Panel's finding contained in paragraphs 7.96 -7.97, 7.160 -7.161, and 8.1 .b.i of the 
Panel Report, that the EU Commission did not act inconsistently with Article 2.4 of the 
Anti-Dumping Agreement.   
11. Indonesia also respectfully requests the Appellate Body to find that the Panel acted 
inconsistently with Article 11 of the DSU and Article 17.6(ii) of the A nti-Dumping Agreement for 
the reasons provided in section II of this Notice of Appeal.  
12. Finally, Indonesia requests the Appellate Body to complete the legal analysis and find that 
the EU Commission acted inconsistently with Article 2.4 of the Anti -Dumping Agreement in its 
determination of dumping margins in the underlying investigation. The factual findings contained 
in the Panel Report, as well as the undisputed facts on the record in the determinations of the 
EU Commission, constitute a sufficient basis t o conclude that the measures at issue were 
inconsistent with Article 2.4 of the Anti -Dumping Agreement.  
                                                
7 Panel Report, paras. 7.126 -7.130.  
8 Panel Report, footnote 366.  
9 Panel Report, paras. 7.54-7.97. 
10 Panel R eport, paras. 7.97, 7.110, and 7.149.  
11 Panel Report, paras . 7.84 and footnote 277 and paras. 7.85, 7.119, and 7.120.  WT/DS442/AB/R/Add.1  
 
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  ANNEX A -2 
EUROPEAN UNION 'S NOTICE OF OTHER A PPEAL* 
Pursuant to Article 16.4 and Article 17.1 of the DSU the European Union hereby notifies to the 
Dispu te Settlement Body its decision to appeal to the Appellate Body certain issues of law covered 
in the Panel Report and certain legal interpretations developed by the Panel in the dispute 
European Union – Anti-Dumping Measures on Imports of Certain Fatty Alc ohols from Indonesia  
(WT/DS442). Pursuant to Rule 23(1) of the Working Procedures for Appellate Review , the 
European Union simultaneously files this Notice of Other Appeal with the Appellate Body 
Secretariat.  
 
For the reasons to be further elaborated in it s submissions to the Appellate Body, the 
European  Union appeals, and requests the Appellate Body to modify, reverse and/or declare moot 
and with no legal effect the findings and conclusions of the Panel and complete the analysis with 
respect to the followi ng errors of law and legal interpretations contained in the Panel Report.1 
 
 As a preliminary issue the European Union respectfully submits that Indonesia's appeal is 
inconsistent with Articles 3(1), 3(2), 3(3), 3(4), 3(5), 3(7), 3(8), 3(9) and 3(10) of the  DSU, 
or any combination thereof, and that the Appellate Body should find that it is unnecessary to 
rule on the substance of the matters raised by Indonesia as the contested measure has 
expired, and indeed ceased to exist before the termination of the pane l proceedings. If the 
Appellate Body grants this relief the European Union withdraws all other aspects of its 
cross-appeal, pursuant to Rule 30 of the Working Procedures for Appellate Review.  
However, where the Appellate Body does not grant the relief requ ested in the preceding 
paragraph, the EU respectfully submits that:  
 
 First, by failing to engage with and address the EU communication concerning expiry of the 
measure and by making recommendations with regard to a measure, which had ceased to 
exist before  the termination of the Panel's proceedings – a fact that was uncontroversial and 
not contested by Indonesia – the Panel violated Articles 11 and 19.1 of the DSU2, and for 
that reason the European Union requests the Appellate Body to reverse paragraph 8.3 of the 
Panel Report;  
 Second, the Panel erred in interpreting and applying Article 12(12) of the DSU, by 
considering that the panel authority had not lapsed. In this respect, it erroneously referred 
to the standard (or guidance) provided by the Appellate Bo dy in EC – Bananas III , which 
concerns a different situation. It also erroneously interpreted and applied Articles 8 
and 12(12) of the DSU, by finding, expressly or by implication, that they are in some 
unspecified respect mutually exclusive, as opposed to  containing concurrent obligations. 
Moreover, the panel violated Article 11 of the DSU because, in addition to the preceding 
errors: it did not take into account all of the evidence submitted to the panel to demonstrate 
that the panel work was indeed suspe nded for more than twelve months; by finding that 
there was no request by Indonesia within the meaning of Article 12(12); by charactering as 
findings of facts matters that concern the legal characterisation of those facts; by adopting a 
formalistic and err oneous analysis relying on the absence in Indonesia's request of any 
express reference to Article 12(12), a false distinction between "work" and "meeting", and 
                                                
* This Notice , dated 15 February 2017 , was circulated to Members as document WT/DS 442/6 . 
1 Pursuant to Rule 23(2)(c)(ii)(C) of the Working  Procedures for Appellate Review  this Notice of Other 
Appeal includes an indicative list of the paragraphs of the Panel Report containing the alleged errors, without 
prejudice to the ability of the European Union to refer to other paragraphs of the Panel R eport in the context of 
its appeal.  
2 As a separate matter, in the event that the Panel did not include that communication concerning 
expiry of the measure on the Panel's record, the EU appeals that action or omission as a violation of Article 11 
of the DS U, since keeping a complete record of the panel proceedings and transmitting  that complete record to 
the Appellate Body in the event of an appeal, pursuant to Article 17(9) of the DSU and Rule 25 of the Working 
Procedures for Appellate Review, is a necessa ry corollary to the Panel's obligations under Article 11 of the DSU 
to assist the DSB in discharging its responsibilities , by making an objective assessment of the matter before it, 
including an objective assessment of the facts of the case; and make such other findings as will assist the DSB 
in making the appropriate recommendations or rulings . WT/DS442/AB/R/Add.1  
 
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  the addressee of Indonesia's request; and by failing to properly address the question of the 
relationship between Articles 8 and 12(12) of the DSU, which was raised by the parties (and 
thereby also violating those provisions of the DSU). Any one of the foregoing errors or any 
combination therefore would justify reversal. Accordingly, the EU requests the 
Appellate  Body to reverse the Panel's findings and conclusion on these matters3, and 
respectfully requests the Appellate Body to complete the legal analysis, by finding that, with 
respect to these panel proceedings, the DSB's authority lapsed pursuant to Article 12(12) of 
the DSU. Consequently, we ask the Appellate Body to reverse all of the Panel's findings and 
recommendations, or declare them moot and of no legal effect.  
 Third, the panel erred in the interpretation and application of Article 6.7 ADA, by considering 
that the European Union had not disclosed the results of the investigation to PTMM,  
inter alia, by imposing, in practice, an obligation to disclose a description of the investigation 
process rather than the results of the verification visit,  requiring moreover that such a 
description should be sufficiently detailed so as to enable the Panel to trace back any 
correction that was made to the information supplied to specific evidence that was verified 
or not during the investigation or other eve nts, and by setting out a list of items that must 
always be disclosed in order to comply with Article 6.7 ADA, regardless of the specific facts 
of each case. Accordingly, the European Union requests the Appellate Body to reverse the 
Panel's findings and co nclusion with regard to the interpretation and application of 
Article  6.7 ADA.4  
 Fourth, the panel erred in the interpretation and application of the DSU, particularly 
Article  12.1 of the DSU, and its Additional Working Procedures Concerning Business 
Confidential Information, because it bracketed information that was already in the public 
domain and failed to require Indonesia to advance justifications for its requests for specific 
instances of bracketing and to provide non -confidential summaries of the bra cketed 
information sufficient to permit a reasonable understanding of the matter. At the same time 
the Panel also violated Article 12.7 of the DSU because by unduly over -bracketing it 
submitted an incomplete report to the DSB. For the same reasons, the Pan el acted 
inconsistently with Article 10.1 of the DSU, which requires that the interests of other 
Members be fully taken into account during the panel process. Finally, by failing to require 
the necessary justifications and make the appropriate adjudication s, and by failing to comply 
with its own BCI Procedures, the Panel acted inconsistently with its obligation to make an 
objective assessment, pursuant to Article 11 of the DSU.5 
_______________  
 
                                                
3 Panel Report, paras. 8.1.a.i -iii, paras. 1.9-1.11, and paras. 7.17 -7.29. 
4 Panel Report, paras. 7.224 -7.229, 7.235 -7.236, and 8.1 .d. 
5 Panel Report, paras . 7.64, 7.74 and 7.80, 7.82, 7.83.  WT/DS442/AB/R/Add.1  
 
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  ANNEX B  
ARGUMENTS OF THE PAR TICIPANTS  
Contents  Page  
Annex  B-1 Executive summary of Indonesia 's appellant's submission  B-2 
Annex  B-2 Executive summary of the European Union's other appellant's submission  B-10 
Annex  B-3 Executive summary of the European Union's appellee's submission  B-14 
Annex  B-4 Executive summa ry of Indonesia's appellee's submission  B-19 
 
 WT/DS442/AB/R/Add.1  
 
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  ANNEX  B-1 
EXECUTIVE SUMMARY OF  INDONESIA 'S APPELLANT'S SUBMI SSION  
1  INTRODUCTION1 
1.1.  Indonesia appeals the Panel's finding that the Commission acted consistently with Article 2.4 
of the Anti -Dumping Agreement by m aking an adjustment to the export price for an investigated 
Indonesian producer/exporter to reflect transactions between the producing entity and its closely 
affiliated sales entity. Indonesia considers that in finding that this adjustment was not inconsis tent 
with Article 2.4, the Panel erred in interpreting and applying Article 2.4 of the Anti -Dumping 
Agreement.  
1.2.  In addition, Indonesia considers that the Panel acted inconsistently with Article 17.6 of the 
Anti-Dumping Agreement and Article 11 of the DSU i n how it addressed Indonesia's arguments 
and evidence and in conducting de novo  review of evidence on the record before the Commission.  
2  BACKGROUND  
2.1.  The measures at issue in this dispute are anti -dumping measures imposed by the EU on 
imports of certain fatty  alcohols from Indonesia. In its determinations, the Commission made an 
adjustment to the export price of the investigated Indonesian producer/exporters for transactions 
between the producers and their closely affiliated sales companies in Singapore, as if  the 
producers and the sales companies were not related.  
2.2.  The Commission originally investigated two Indonesian producer/exporters, Musim Mas 
Group and Ecogreen. Both made their sales to the EU using the same sales structure. The 
producers in Indonesia (PT  Musim Mas and PT Ecogreen Oleochemicals, respectively) sold to a 
closely affiliated, separately incorporated sales company located in Singapore (ICOF -S and EOS, 
respectively). These sales companies then re -sold the goods to customers in the EU.  
2.3.  For both producer/exporters, the sales office in Singapore negotiated with the EU customer 
on price. Once the price was agreed with the EU customer, two invoices were prepared: first, the 
producing entity in Indonesia invoiced the sales office in Singapore for 95% of the price agreed by 
the EU customer. Second, the sales office in Singapore invoiced the unrel ated customer in the 
EU for 100% of the agreed price. The difference between the price received for the sale by the 
sales office (100%) and the amount paid to t he producing entity (95%) is referred to as the 
"mark -up" between the producing entities and their sales offices. For both producer/exporters, in 
each case, the sales office in Singapore was wholly controlled by the same holding entity or 
shareholders as t he producing entity in Indonesia.  
2.4.  In calculating the export price for both producer/exporters in its provisional and final 
determinations, the Commission characterized the sales companies in Singapore as an 
independent "agent[s] working on a commission ba sis". The Commission did not address whether 
the producers in Indonesia and their closely affiliated sales offices in Singapore were part of an 
SEE for the purpose of determining dumping margins. In the final determination, the deduction 
consisted of the S G&A expenses of the sales entity in Singapore and "profit of 5% which is 
considered a reasonable profit for the activities carried out by trading companies in the chemical 
sector". Without this adjustment, both producer/exporters would have had de minimis dumping 
margins.  
2.5.  The Commission made this adjustment pursuant to Article 2.10(i) of the EU's Basic 
Regulation, which permits a "notional" adjustment where an exporter sells through an affiliated 
trading company. Article 2.10(i) provides that "[t]he term 'c ommission' shall be understood to 
include the mark -up received by a [related] trader of the product or the like product if the 
functions of such a [related] trader are similar to those of an [independent] agent working on a 
                                                
1 This executive summary contains a total of 5,623 words (including footnotes). Indonesia's appellant's 
submission contains a total of 63,245 words (including footnotes).  WT/DS442/AB/R/Add.1  
 
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  commission basis". This has been  described as enabling the Commission to "deduct[] from the 
export price a commission that was never paid, thereby artificially decreasing the export price". 
This provision of the Basic Regulation has no direct counterpart in the Anti -Dumping Agreement.  
2.6.  After the final determination, the Commission initiated a procedure to review the dumping 
measure. Having previously treated Musim Mas Group and Ecogreen identically, the Commission 
now found differences between the two producer/exporters. It decided to revi se Ecogreen's 
dumping margin by removing the adjustment. As Ecogreen now had a de minimis dumping 
margin, the measure was terminated for Ecogreen. The Commission made no change to Musim 
Mas Group's dumping margin.  
3  THE ISSUE BEFORE THE  PANEL  
3.1.  Indonesia argue d that in making price adjustments under Article 2.4 of the Anti -Dumping 
Agreement to reflect the involvement of a closely affiliated sales entity, an investigating authority 
must address whether the producing entity and its closely affiliated sales entity  are in a sufficiently 
close relationship to warrant being treated as an SEE for the purpose of determining dumping 
margins. This question must be resolved using criteria such as those articulated by the panel in 
Korea – Certain Paper  and the Appellate Bod y in EU – Footwear  regarding the common ownership, 
management, and control of the entities involved.  
3.2.  Transactions between entities within the SEE are not reliable, for the reasons explained by 
the Appellate Body in US – Hot-Rolled Steel , paragraph 141. Mor eover, these transactions do not 
represent expenses to the SEE as a whole. The determination of prices and price adjustments for 
dumping purposes must be based on the revenues and expenses of the SEE as a whole, not on the 
transfers within the SEE, and on how the producer/exporter actually structures its sales and the 
expenses it actually incurs.  
3.3.  Where a producer/exporter uses an unaffiliated agent to help make sales, the commission 
paid to that agent is a direct selling expense that can be deducted from t he export price or normal 
value. Where a producer/exporter instead uses a closely affiliated sales entity with which it forms 
part of an SEE, the transfers within the SEE are not an expense to the SEE as a whole and may 
not be deducted. Instead, the actual  expenses incurred are the expenses of the closely affiliated 
sales entity to pay its salespersons' salaries, office costs, etc. These are indirect selling expenses 
that are not deducted from the normal value or export price. The purpose of a dumping analy sis is 
to identify price discrimination between markets. Hence, the deduction of any profit accruing to an 
entity for which a dumping margin is being determined would distort the price comparison.  
3.4.  Indonesia argued that the Commission's treatment of the pro ducer in Indonesia and the sales 
office in Singapore as if they were independent entities, and the deduction of amounts for the 
sales office's selling expenses and the profit of traders in this sector did not accurately reflect the 
expenses actually incurr ed in making the investigated sales. It also distorted the comparison 
between export price and normal value, resulting in an unfair comparison under Article 2.4 of the 
Anti-Dumping Agreement.  
4  THE PANEL'S RULING  
4.1.  The Panel rejected Indonesia's claim. The Pan el stated that an adjustment may be 
appropriate where a factor "is linked exclusively either to the domestic sales or to relevant export 
sales subject to comparison, or to both sides of the comparison but in different amounts" and 
found that "the EU author ities did not act inconsistently with Article  2.4 of the Anti -Dumping 
Agreement by considering whether ICOF -S had functions similar to an agent working on a 
commission basis". However, the Panel's evaluation of the relevant legal standard in section 7.3.5 
and its application of that standard to reach its conclusion in section 7.3.5.1 of the Report do not 
contain a single  reference to the issue of closely affiliated companies, SEEs, or whether or how 
transactions between them may affect price comparability w ithin the meaning of Article 2.4, or 
Indonesia's arguments on this issue.  
4.2.  Having concluded that the Commission acted consistently with Article 2.4, the Panel "turn[ed] 
to" Indonesia's arguments to see whether they "affected" the Panel's conclusion or provi ded 
"reason to set aside our conclusions".  WT/DS442/AB/R/Add.1  
 
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  4.3.  The Panel stated that the question of whether two entities were part of an SEE was not 
"dispositive" because it was "possible" that transactions between two entities "could be" at arm's 
length, "regardless of how  closely intertwined their control and ownership might be". The Panel 
concluded that even where transactions are not at arm's length, a transaction between them 
"could reflect an expense" that must be adjusted for.  
4.4.  The Panel rejected Indonesia's argument that the deduction of amounts representing selling 
expenses and profit from the export price when no selling expenses or profit were deducted from 
the normal value resulted in an asymmetric comparison. The Panel reasoned that there was no 
asymmetry as the export price reflected some profits and selling expenses, those of the producing 
entity.  
4.5.  The Panel also rejected Indonesia's argument that it is not permissible to deduct selling 
expenses and profits, on the ground that the selling expenses and profits of  a "downstream 
participant" in the sales process may be a direct selling expense to the producer. However, the 
Panel did not address whether there was a distinction between an independent and a closely 
affiliated "downstream participant".  
5  THE LEGAL STANDAR D UNDER ARTICLE 2.4  
5.1.  Article 2.4 of the Anti -Dumping Agreement requires investigating authorities to conduct a 
"fair comparison" between the normal value and the export price "at the same level of trade, 
normally the ex -factory level". In order to comply wi th this requirement, investigating authorities 
are required to make "[d]ue allowance … for differences which affect price comparability".  
5.2.  The process of determining the ex -factory normal value and export price requires the 
"netting back" from the starting  price charged to the first unrelated customer. This is done by 
making adjustments to ensure that comparisons are not distorted by factors extraneous to the 
central issue of price discrimination between markets. If a domestic customer and an export 
custome r both appeared to buy the goods at the factory gate, the price charged to the export 
customer should be no less than the price charged to the domestic customer. Under Article 2.4, 
"allowances should not be made for differences that do not affect price com parability". This means 
that an adjustment should be made when, and only when, a factor affects price comparability.  
5.3.  Article 2.4 does not expressly address transactions between closely affiliated parties. 
However, the Appellate Body has explained in US – Hot-Rolled Steel  that transactions between 
affiliated parties may not be reliable and that it is consistent with the Anti -Dumping Agreement to 
use the price of a closely affiliated reseller as the starting price in the analysis of normal value. 
This ration ale applies equally to the determination of the starting price and adjustments on the 
export side.  
5.4.  A producer/exporter may choose to make its sales using an internal sales department, an 
affiliated sales company, or an independent agent. The choice will a ffect the producer/exporter's 
costs and his net return on the sale. These choices must be reflected accurately in the 
investigating authority's dumping analysis. In trying to identify whether the producer/exporter is 
engaged in price discrimination between  markets, the investigating authority cannot achieve a fair 
comparison under Article 2.4 if it ignores the producer/exporter's actual sales structure. It cannot 
replace the producer/exporter's actual expenses with the expenses that would have been incurred  
had it sold under a different hypothetical sales structure.  
5.5.  An investigating authority must, therefore, address whether a producing entity and its closely 
affiliated sales entity are in a sufficiently close relationship to warrant being treated as an SEE,  
using the criteria in Korea – Certain Paper and EU – Footwear.  
5.6.  When two entities form part of a SEE, the revenues, profits, and expenses of each entity in 
the SEE become the revenues, profits, and expenses of the SEE as a whole. For dumping 
purposes, this  means that the prices, profits, and expenses of the sales entity within the SEE must 
be treated in the same way as if the producer/exporter were a single legal entity.  
5.7.  Commissions paid to an independent agent may be deducted from the normal value or expor t 
price, as appropriate. Transactions between entities within the SEE are not reliable or relevant for WT/DS442/AB/R/Add.1  
 
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  determining adjustments. Any selling expenses incurred by a sales entity within the SEE must be 
treated in the same way as indirect selling expenses of a  producer/exporter that consists of a 
single legal entity. These expenses are not deducted from the normal value or export price.  
6  THE PANEL ERRED IN I NTERPRETING AND APPL YING ARTICLE 2.4  
6.1.  The Panel failed to articulate the correct legal standard under Art icle 2.4 for examining 
adjustments in circumstances involving transactions between closely affiliated parties. In 
sections  7.3.5 and 7.3.5.1 of its Report, the Panel interpreted and applied Article 2.4 to find that 
the Commission did not act inconsistently  with Article 2.4 without ever addressing 
Indonesia's  arguments regarding the importance of examining the relationship between the parties 
at issue. This, in itself, is a failure to interpret and apply Article 2.4 correctly.  
6.2.  The Panel articulated a standar d whereby an adjustment can be made where a factor exists 
on one side of the comparison but not the other. This suggests that the manner in which the 
investigating authority quantifies or describes an adjustment that may be made on only one side is 
beyond review for "fairness" under Article 2.4. This cannot be.  
6.3.  The Panel also erred in dismissing the importance of whether two entities form part of an SEE 
by stating that this cannot be dispositive because it is "possible" that transactions between these 
entities "could" be at "arm's length". Even assuming this were correct, the Panel also erred in 
failing to identify a proper legal standard for determining whether transactions between the closely 
affiliated entities in this case were at "arm's length" and whe re in its determinations the 
Commission provided a reasoned and adequate explanation of how it applied that standard.  
6.4.  The Panel also erred in confusing the issue of whether prices between closely affiliated 
entities approximate "arm's length" transactions under a transfer pricing agreement and the issue 
of whether entities are in "a relationship close enough to support" "properly treat[ing] multiple 
companies as a single exporter or producer in the context of [the] dumping determinations in an 
investigation ".  
6.5.  The Panel did not even address the fact that even if a transfer between entities within an SEE 
is at the amount at which independent parties do business, it remains an intra -SEE transfer. The 
amount transferred to the sales entity remains cash in the h ands of the SEE. It is not the same as 
a transfer to an independent entity outside the SEE, no matter what its amount is.  
6.6.  The Panel also erred in finding that an investigating authority may make adjustments to 
normal value or export price for the selling expenses and profits of a "downstream participant" in 
the sales process, without distinction between closely affiliated downstream participants and 
independent downstream participants. The Panel correctly stated that payments to an independent 
downstream p articipant are a direct selling expense to the producer/exporter that may be 
deducted. However, the Panel erred in suggesting that exactly the same approach may be used for 
"downstream participants" that are part of an SEE with the producing entity.  
6.7.  The P anel also erred in suggesting that deductions may be based on the "value" of a factor 
(the "reasonable profit" in the "chemical sector") rather than on the basis of the expenses actually 
incurred by the producer/exporter. Nothing in the Anti -Dumping Agreem ent permits the 
investigating authority to ignore actual expenses and to use what it considers "reasonable" or to 
be the correct "value" of the expense.  
6.8.  The Panel also erred in its analysis of the consequences of the Commission's decision to treat 
the prod ucer in Indonesia and its closely affiliated sales office in Singapore as a single entity for 
the purposes identifying the "starting price" in the Commission's analysis. The Commission's 
decision to use the re -sale price of the closely affiliated sales ent ity as the starting price in the 
analysis price implies a judgment about the relationship between the sales entity and the 
producing entity. This should also affect the determination of adjustments to that starting price. 
The Panel erred in dismissing this  issue, in a footnote, as merely a "conception" of Indonesia.  
6.9.  The Panel also erred in its analysis of whether the Commission properly adjusted for "indirect 
selling expenses". The Panel correctly noted that indirect selling expenses/SG&A and profit are to 
be included in the normal value and export price. However, the Panel erred in stating that there WT/DS442/AB/R/Add.1  
 
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  was no unfair comparison where the normal value and export price included some indirect selling 
expenses and profit, even if other selling expenses and profit were deducted from the export price.  
6.10.   The Panel also erred in its analysis of the Commission's criterion of whether a closely 
affiliated sales entity performs the same "functions" as an independent agent. Salespersons are 
likely to perform the same functio n whether they are closely affiliated to or independent of the 
producer: they will make sales. Thus, their functions are scarcely relevant to the issue of whether 
they are making sales independently or as part of the producer/exporter . 
6.11.   Ultimately, the Pane l's ruling means that investigating authorities may simply ignore the 
relationship between a sales entity and a producing entity and proceed on the basis that they are 
independent of each other. This would, in effect, deprive producer/exporters of their ri ght to have 
their dumping margins based on their actual sales processes and their actual revenues and profits. 
It would deprive them, in the calculation of margins, of any benefits or efficiencies they achieve by 
performing sales functions through a closel y affiliated sales entity rather than through an 
independent trader with its own profit motive. This cannot be a permissible means of achieving a 
"fair comparison" within the meaning of Article 2.4.  
6.12.   Indonesia requests the Appellate Body to reverse the Pane l's finding that the Commission 
did not act inconsistently with Article 2.4 in making the contested adjustment. In addition, 
Indonesia requests the Appellate Body to complete the analysis. On the basis of the undisputed 
facts on the face of the Commission' s determinations, the Appellate Body can and should find that 
the Commission acted inconsistently in making the contested adjustment without properly 
examining whether the sales and producing entities were in a sufficiently close relationship to 
warrant be ing treated as a single entity for dumping purposes.  
7  THE PANEL FAILED TO MAKE AN OBJECTIVE AS SESSMENT OF THE MATT ER UNDER 
ARTICLE 17.6 OF THE ANTI -DUMPING AGREEMENT AN D ARTICLE 11 OF THE DSU 
7.1  The proper standard of review in disputes under the Anti -Dumping Agreement  
7.1.  Article 17.6 of the Anti -Dumping Agreement and Article 11 of the DSU contain the proper 
standard of review for panels in disputes under the Anti -Dumping Agreement. This standard 
requires a panel to examine whether the report of the investigating authority contains a "reasoned 
and adequate explanation of how the facts support the authority's determination. This explanation 
must be discernible from the published determinations and cannot be provided by the defending 
Member in a WTO proceeding. A pan el's examination of this explanation must be based exclusively 
on the information contained on the record and the explanations given by the authority in its 
published report. A panel may not conduct a de novo  review of evidence from the investigation 
record where the investigating authority itself failed to assess that evidence. It is not for a panel to 
examine  - as the first trier of fact  - a piece of evidence, to assess its probatory value, or to weigh 
it against other record evidence. This is the task of  the investigating authority.  
7.2.  This is also important for safeguarding the procedural rights of the investigated company 
enjoys in an investigation. When an investigated company provides evidence, the investigating 
authority must use that evidence. If the evidence is deemed insufficient or otherwise unreliable, 
the investigated company has a right to know and to have an opportunity to provide further 
explanations. If a panel examines evidence de novo , without granting the company those rights, it 
essentiall y undermines the due process safeguards of the Anti -Dumping Agreement. Moreover, as 
it does not have the complete investigation record before it, a panel is not in a position to make 
"judgment calls" about the evidence.  
7.2  The Panel acted inconsistently with Articles 17.6 of the Anti -Dumping Agreement 
and Article 11 of the DSU by finding the measure at issue to be consistent with 
Article  2.4 of the Anti -Dumping Agreement before addressing Indonesia's arguments 
and evidence  
7.3.  In paragraphs 7.54 -7.94 of its report , the Panel conducted a stand -alone analysis of the 
measure at issue and concluded that it was consistent with Article 2.4 of the Anti -Dumping 
Agreement. The Panel reached that finding without considering any of the arguments and evidence 
that Indonesia ha d placed before the panel that were at the core of Indonesia's case. In the WT/DS442/AB/R/Add.1  
 
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  remainder of its analysis, the Panel "turned to" whether Indonesia's arguments or evidence could 
"affect" that previously reached finding of consistency or persuade the Panel to "s et aside" its 
earlier findings.  
7.4.  This approach is inconsistent with Article 17.6 of the Anti -Dumping Agreement and Article 11 
of the DSU. WTO law does not permit a panel to reach a conclusion on a claim divorced from 
arguments and evidence of complaining pa rties. Indonesia was entitled to have its arguments and 
evidence addressed by a panel with an open mind on the case, not one that had already concluded 
that the measure was WTO -consistent. In effect, the Panel imposed a burden on Indonesia to 
"disprove" th e panel's view that the measure was WTO -consistent. Effectively, the Panel created 
an "extra hurdle" for Indonesia, tilted the playing field against Indonesia, and made the case for 
the defendant.  
7.3  The Panel acted inconsistently with Article 17.6 of the Ant i-Dumping Agreement and 
Article 11 of the DSU by repeatedly conducting de novo  review of record evidence  
7.5.  The Panel repeatedly engaged in de novo  review of record evidence. It examined evidence 
that had not been analysed by the investigating authority and c onducted its own evaluation of that 
evidence to determine, for itself, the most plausible reading of that evidence. However, the role of 
a WTO panel is limited to examining whether the authority provided a reasoned and adequate 
explanation of its determina tion, in the light of record evidence and other potential alternative 
explanations.  
7.6.  The Panel relied on the Appellate Body reports in US – Countervailing Duty Investigation on 
DRAMS  and Thailand – H-Beams . In those cases, the Appellate Body approved refer ences by the 
panels to evidence, to which the investigating authorities had not referred, in specific, limited 
circumstances not present in this case. In US – Countervailing Duty Investigation on DRAMS , the 
Appellate Body approved the panel's reference to a newspaper article referred to by the United 
States as additional support for a finding by the investigating authority that was based explicitly on 
a vast range of evidence, including numerous other newspaper articles, all of which pointed to the 
same con clusion. In these circumstances, a panel may review additional supporting evidence, 
because it is clear from the remainder of the analysis what the investigating authority thought 
about that evidence. But this is not the case when the evidence contradicts the authority's 
conclusion and is capable of multiple plausible readings.  In Thailand – H-Beams , the 
Appellate  Body approved a reference by the panel to supporting evidence that was not referred to 
by the investigating authority in order to protect its con fidentiality. Neither of these specific 
circumstances were present in this case.  
7.7.  The Panel also articulated a new legal standard that it may examine evidence de novo  as long 
as that evidence is "connected" to the explanation of the authority. This is too broad, because all 
record evidence in a dumping determination could ultimately be said to be "connected" to the 
investigating authority's explanation. If the Panel's new standard is left to stand, panels will be 
given carte blanche  to engage in de novo  review of virtually any evidence on the record. This will 
read the Appellate Body's previously articulated explanation -based standard out of WTO dispute 
settlement.  
7.8.  The Panel engaged in de novo  review by determining the probatory value of the email in 
Exhibi t PTMM -18 (Exhibit IDN -47). The authority never examined this evidence. This evidence 
contradicted the investigating authority's view that ICOF -S does not conduct marketing and sales 
activities for PT Musim Mas's domestic sales. The document was provided t o show, by way of an 
example, a domestic sale in which ICOF -S is involved. The Panel evaluated this evidence, chose 
between what it considered to be plausible readings, and weighed the document against some, but 
not all, other evidence that was before it ( and that also had not been examined by the 
investigating authority). This is not permissible. The Panel was also incorrect to say that the 
authority "ascribed limited evidentiary value" to the document. There is no indication of what the 
authority actually  thought, as its silence can be read in many different ways.  
7.9.  The Panel also conducted an impermissible de novo  review of the list of PT Musim Mas's 
shareholders. Indonesia explained that PT Musim Mas and ICOF -S had the same shareholders, who 
in addition we re in a particularly close relationship  and that the investigating authority had failed 
to analyse this point. The Panel found that the evidence did not unambiguously establish the  close WT/DS442/AB/R/Add.1  
 
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  nature of the shareholders' relationship. But this is not only irrele vant, because the identity of the 
shareholders is sufficient, regardless of their relationship. In addition, the Panel addressed an 
argument never made by the investigated company during the proceedings; and it weighed and 
balanced the evidence. The eviden ce was perfectly consistent with the proposition that the 
shareholders are closely related. Moreover, the investigating authority never sought further 
information or explanations on this point. As such, the Panel's approach deprives the investigated 
compan y of its due process rights during the investigation.  
7.10.   The Panel also found that the shareholders of PT Musim Mas and ICOF -S were not identical, 
although the company stated that they were the "same", which is normally understood to mean 
identical. The Pane l thus decided to interpret for itself what the company had stated during the 
investigation.  
7.11.   The Panel also engaged in a de novo  review of certain organizational charts filed by 
PT Musim Mas as part of its questionnaire response. The Commission never even mentioned these 
charts. The Panel engaged in a de novo  analysis of the evidence to determine that the "marketing 
and sales department" in PT Musim Mas's chart was not ICOF -S. The Panel essentially determined 
what the investigated company sought to depict w hen it prepared the charts. This makes no 
sense. Besides being an impermissible de novo  review, the Panel's analysis is also inconsistent 
with uncontested facts.  
7.12.   The Panel also developed its own reasoning about PT Musim Mas's marketing and sales 
activitie s. The Panel analysed a spreadsheet in PT Musim Mas's questionnaire response, to which 
the Commission never referred in its Determinations. The Panel discovered identical percentage 
amounts allocated to marketing and sales activities across different produ ct groups and, from this, 
deduced that PT Musim Mas was conducting identical activities. The Panel used this to support its 
finding that ICOF -S was involved only with export sales and, therefore, an adjustment for its 
expenses and profits was warranted.  
7.13.   In reality, in this spreadsheet, the producer/exporter was simply allocating its expenses on 
the basis of turnover because that is what it was instructed to do by the Commission. It was not 
supposed to, and did not, reflect the actual activities and expenses  on a product - or 
market -specific basis. The Panel thus arrived at its own (questionable) reading of evidence that 
could have been read in multiple ways, without even exploring why the information was presented 
in this manner. Moreover, the Panel's conclus ion is inconsistent with the theory that PT Musim Mas 
conducted all of its domestic marketing and sales activities, but left the corresponding export 
activities to ICOF -S. In that case, the percentage amounts should have been different.  
7.14.   The Panel report c ontains further instances of de novo  review. For instance, the Panel 
developed its own theory about PT Musim Mas's "direct" export sales, without any basis in the 
record evidence and in the absence of any statement by the Commission. In order to resolve a 
contradiction between assumptions concerning PT Musim Mas's marketing capacity, the Panel 
made up out of whole cloth a theory whereby PT Musim Mas had capacity to market its sales in 
certain markets, but not in others. There is no record evidence to suppor t this, while there is 
evidence that contradicts the Panel.  
7.15.   The Panel also provided a de novo  analysis of PT Musim Mas's Financial Statements, in its 
interim report. This analysis was also incorrect as a matter of basic accounting precepts. After 
vigorous protestations by Indonesia in its interim comments, the Panel deleted this finding. 
However, this finding is further useful evidence of the unprecedented willingness of this Panel to 
step into the shoes of the investigating authority and do its work for it . 
7.4  The Panel acted inconsistently with Article 11 of the DSU and Article 17.6 of the 
Anti-Dumping Agreement by disregarding or summarily dismissing relevant evidence 
that favoured Indonesia  
7.16.   The Panel also violated Article 11 of the DSU and Article 17.6 of the Anti -Dumping 
Agreement by disregarding or summarily dismissing relevant evidence that favoured Indonesia. 
This evidence pertained to the S&P Agreement between PT Musim Mas and ICOF -S. WT/DS442/AB/R/Add.1  
 
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  7.17.   Panels have the discretion not to examine each and every argument an d piece of evidence 
of a party. However, this discretion does not extend to evidence that is relevant for a party's case, 
as presented by that party, and that "appears to favour" that party. All of the evidence at issue 
here is evidence that is relevant, b ecause it pertains to issues explicitly relied on by the 
investigating authority, the EU in the WTO proceedings, and the Panel itself. Moreover, it all 
favours Indonesia, in one way or the other.  
7.18.   Indonesia submitted multiple pieces of evidence that demons trated that the S&P Agreement 
could not be reasonably read to suggest that the two companies were unrelated. Also, the 
existence of a written contract and the specific content did not suggest that the agreement was 
something "more" than a normal transfer p ricing agreement. This evidence included transfer 
pricing guidelines from international organizations such as the OECD and the United Nations, as 
well as from national jurisdictions. It also included recommendations from a specialized law firm 
for related companies wishing to conclude transfer pricing agreements, as well as template/model 
transfer pricing agreements that contained exactly the same clauses as the S&P Agreement.  
7.19.   The Panel either ignored this evidence or dismissed it summarily as irrelevant. For instance, 
the Panel initially ignored the law firm and model agreement evidence. In response to Indonesia's 
interim comments, the Panel made a brief statement that one of the model transfer pricing 
agreements was irrelevant because it pertained to a di fferent type of commercial activity, or 
because the law firm recommendations contained disclaimers. These statements reflect a refusal 
to engage with the evidence and they entirely miss the point. The issue was that a model transfer 
pricing agreement inclu ded the same clauses as the S&P Agreement at issue. In another instance, 
the Panel relied on the OECD Guideline to make an (incorrect) point about "arm's length", but 
entirely ignored another section of the same document on which Indonesia had based its 
arguments. This is also an un -even-handed approach to the evidence that vitiates the objectivity 
of the analysis.  
8  CONCLUSION AND REQUE ST FOR FINDINGS  
8.1.  For these reasons, Indonesia requests the Appellate Body to reverse the Panel's finding that 
the Commission did not act inconsistently with Article 2.4 of the Anti -Dumping Agreement in 
making the contested adjustment.  
8.2.  Indonesia also requests the Appellate Body to find that the Panel acted inconsistently with 
Article 17.6 of the Anti -Dumping Agreement and Articl e 11 of the DSU in making its finding under 
Article 2.4.  
8.3.  In addition, Indonesia requests the Appellate Body to complete the analysis. On the basis of 
the undisputed facts on the face of the Commission's Determinations, the Appellate Body can and 
should fin d that the Commission acted inconsistently with Article 2.4 in making the contested 
adjustment without properly examining whether the sales and producing entities were in a 
sufficiently close relationship to warrant being treated as a single entity for dum ping purposes.  
 WT/DS442/AB/R/Add.1  
 
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  ANNEX B -2 
EXECUTIVE SUMMARY OF  THE EUROPEAN UNION'S  OTHER APPELLANT'S SU BMISSION  
1   FACTUAL BACKGROUND A ND THE MEASURES AT I SSUE  
1. In 2010 the EU initiated an anti -dumping investigation regarding imports of certain fatty 
alcohols and their blen ds, originating inter alia in Indonesia. The findings of the investigation 
were crystalized in three acts – Council Regulation (EU) No. 446/2011 of 10 May 2011 
("Provisional Determination"), Council Implementing Regulation (EU) No. 1138/2011 of 
8 November 2011 ("Final Determination"), and Council Implementing Regulation (EU) 
No. 1241/2012 of 11 December 2012 ("Revised Determination"). These measures were the 
object of Panel proceedings between the EU and Indonesia.  
2   INDONESIA'S APPEAL R ELATES TO AN EXPIRED  MEASURE AND SHOULD B E 
DISMISSED  
2. As the contested measure expired on 12 November 2016 and the EU informed the Panel and 
Indonesia of this on 16 November 2016, the EU thinks that Indonesia's appeal is 
inconsistent with Articles 3.1, 3.2, 3.3, 3.4, 3.5, 3.7,  3.8, 3.9 and 3.10 of the DSU and that 
ruling on the matters raised by Indonesia is unnecessary, since an appeal is not appropriate 
when the sole measure at issue no longer exists, because it has been withdrawn/expired. 
Should the Appellate Body uphold thi s claim of the EU, the EU withdraws the remainder of 
its cross -appeal.  
3. Article 3 of the DSU sets out inter alia  the objectives of the WTO dispute settlement system, 
such as preservation of rights and obligations of Members, prompt settlement of situations  
in which a Member considers that a benefit it is entitled to is being impaired, satisfactory 
settlement of the matter, and the initiation of dispute settlement procedures only when they 
may be fruitful and le ad to a positive solution to the dispute and no t in order to obtain an 
advisory opinion on legal issues.  
4. In the present case, however, since the contested measure has ceased to apply, there is 
nothing left to "preserve", nor is any benefit being impaired. Bringing such a case risks to 
unnecessarily de lay and prevent the prompt settlement of other disputes. Instead, the 
withdrawal/expiry of the measure has achieved a satisfactory settlement of the matter, in 
accordance with the rights and obligations under the DSU and the covered agreements. 
Furthermore , bringing an appeal regarding withdrawn/expired measures cannot be fruitful, 
since a positive and mutually acceptable solution has already been achieved, withdrawal 
being the first objective of the dispute settlement mechanism.  
5. Since there is no longer a ny concrete and ongoing dispute between the parties, Indonesia 
appears to be seeking an "advisory opinion", a clarification or interpretation of certain 
provisions in the abstract. However, other WTO procedures are set out for that purpose.  
6. Additionally, the EU submits that the Panel erred in making recommendations on a 
withdrawn/expired measure, in violation of established case -law and the Panel's obligations 
pursuant to Articles 11 and 19.1 of the DSU. Indeed, these provisions envisage a situation in 
which a measure (and hence a violation) still exists. Furthermore, the Panel's failure to 
address the EU communication on the expiry of the measure constitutes in itself a failure to 
make an objective assessment pursuant to Article 11 of the DSU.  
3   THE PANEL ERRED IN FINDING THA T THE DSB AUTHORITY FOR THESE PANEL 
PROCEEDINGS HAD NOT LAPSED  
7. The EU appeals the Panel's findings concerning its request for a preliminary ruling that the 
DSB authority for the Panel proceedings lapsed pursuant to Article 12.12 of the DSU.  WT/DS442/AB/R/Add.1  
 
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  8. There can be no doubt that an Article 12.12 request can be made between Panel 
establishment and composition.  
9. First, a textual interpretation of Article 12.12 supports the EU position. Like in many other 
provisions in the DSU, the term "Panel" in Art icle 12.12 refers to an established panel, 
regardless of the stage of its composition. Further, the verb "suspended" includes putting 
something into abeyance from the very start. "[T]he work of the Panel" includes anything 
lawfully done in the name of the Panel, including by the Secretariat pursuant to Article 27 
DSU. Finally, after 12 months without any activity, the authority of the Panel automatically 
lapses. Suspension can be initiated by a "request" by the complaining Member – an 
indication of its wish es to suspend the Panel's work. The suspension can commence "at any 
time" from the moment of the Panel's establishment.  
10. Next, the EU submits that the final sentence of Article 12.12 has several objects/purposes, 
common to other provisions of the DSU which  support the EU interpretation. These include 
setting parameters to the authority of the DSB, providing for security and predictability, 
limiting the reputational consequences for the accused Member, promoting the prompt 
settlement of disputes, and allowin g both the defending Members, as well as the Secretariat 
to organize their limited resources so as to participate efficiently and effectively in dispute 
settlement or to assist Panels. Therefore, the duration of the authority flowing from the DSB 
is not in definite and not in the hands of the complaining Member alone.  
11. Moreover, the Panel did not consider the entirety of Article 12.12 and its reference to 
Article  12.9. According to the latter provision, the total period between Panel establishment 
and the ad option of the Panel report should not exceed 9 months, with the possibility of a 
suspension of 12 months (21 months in total). Allowing for an indefinite suspension after 
Panel establishment but before Panel composition, in addition to an Article 12.12 
suspension, is irreconcilable with the time limit of Article 12.9, which begins running from 
the date of Panel establishment.  
12. In the present case, on 11 July 2013 Indonesia informed the Secretariat that it wished to 
suspend  a meeting (the only work happening at that moment), a "request", to which the 
Secretariat sent a confirmatory response. On 22 September 2014, more than 12 months 
later, the Secretariat sent a communication to the Parties, pursuant to a request from 
Indonesia from 19 September 2014, to resum e the work of the Panel. Indonesia's 
suspension request was made between the Panel establishment and Panel composition and 
had the consequence of suspending any future work of the Panel for more than 12 months. 
The Panel, therefore, had no authority or jur isdiction to consider the matters that Indonesia 
raised.  
13. The Panel erred by referring to the standard in EC ‒ Bananas III . Indonesia was exercising, 
rather than relinquishing a right under Article 12.12 DSU. Furthermore, the expiry of the 
12 month period did not imply that Indonesia was surrendering its right to bring dispute 
settlement proceedings as Indonesia had the right to bring fresh dispute settlement 
proceedings concerning the same matter and ask for the establishment of a new panel. 
Moreover, regardless of any ambiguities in Indonesia's request, it resulted in a Secretariat 
response, pursuant to which no  panel work occurred for more than 12 months. The Panel 
should have made an objective assessment based on all the facts before it, pursuant to 
Article 11 of the DSU. The Panel, therefore, committed an error in interpretation and/or 
application of the law, including Article 12.12 DSU.  
14. Furthermore, the Panel omitted any reference to the response to Indonesia's request from 
its analysis, despite it being central to the EU's argument, thereby violating Article 11 of the 
DSU. Moreover, the Panel's erroneously r efers to the EU "insufficiently demonstrating", 
although there were no issues of fact and evidence. Rather, the Panel's conclusion rests 
upon the legal characterisation of the facts, specifically that there was no Article 12.12 
request. Additionally, the P anel's comments on Indonesia's request are purely formalistic, 
rather than looking to the substance of the request, the response to the request and the 
ensuing inactivity. Finally, the Panel accepts that Article 8 and Article 12.12 of the DSU are 
mutually exclusive, while they actually contain concurrent obligations. Therefore, the Panel 
failure to analyse these matters constitutes an error in interpretation and/or application of WT/DS442/AB/R/Add.1  
 
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  the DSU. All of these errors constitute a violation of the obligation to make an objective 
assessment pursuant to Article 11 of the DSU.  
15. Having reversed the Panel's findings and conclusion on this point, the European Union 
requests the Appellate Body to complete the legal analysis, by finding that the 
DSB's  authority lapsed pursuan t to Article 12.12 of the DSU and reverse all of the 
Panel's  findings and recommendations.  
4   THE PANEL ERRED IN T HE INTERPRETATION AN D APPLICATION OF ART ICLE 6.7 
OF THE ANTI -DUMPING AGREEMENT  
16. The Panel erred by considering that Article 6.7 ADA requires in p ractice the disclosure of a 
description of the verification process rather than its results. While the EU agrees with the 
Panel that "results" in Article 6.7 refers to what is achieved or obtained during the 
verification, it points to the relationship betw een Article 6.7 and Article 6.9 and argues that 
the "results" are closely related to the essential factual outcomes of the verification, which 
may have a bearing on the authorities' decisions, enabling companies to defend their 
interests.  
17. The Panel wrongl y interpreted Article 6.7 and found that disclosure of the results of the 
verification requires, as a minimum, an indication of: (1) the previously supplied information 
for which supporting evidence was requested, (2) any other information requested, (3) t he 
documents that were collected, (4) whether the additional information was made available, 
and (5) whether the accuracy of the information supplied was confirmed by the investigating 
authority. Most of these elements refer to the process of verification,  rather than its results. 
Instead, the verification visit is essentially a documentary exercise that focuses upon 
documentary evidence.  
18. In this case, there is no dispute that the requirement sub (3) was respected.  
19. Moreover, since the verified firms cooper ated, there was no document requested that was 
not supplied. In any event, information not supplied does not constitute a "result" since it 
was not obtained as a result of the verification.  
20. Information already submitted, for which supporting evidence is r equired is also manifestly 
not an outcome of the visit. In any case, PTMM representatives were present during the visit 
and they were informed beforehand of the documents to be prepared for the verification. 
Hence, what has been verified resulted from the circumstances of the procedure.  
21. Requests for information are equally not a result of the visit, but pertain to the process of 
verification.  
22. Finally, the requirement to include a statement setting out whether or not the authorities 
were able to confirm th e accuracy of the information supplied implies that the investigating 
team should assess the information collected. However, the evaluation of the evidence and 
information is the task of the authority and the result of the antidumping investigation and is 
disclosed as essential facts pursuant to Article 6.9. It cannot be performed by the 
verification team.  
23. Additionally, the Panel considered that the behaviour of the investigated firm is irrelevant in 
assessing the compliance with Article 6.7. However, as n o particular disclosure format is 
prescribed, compliance with Article 6.7 should be assessed by considering all facts of the 
case, including the behaviour of the investigating authority and the investigated firms. In 
the present case, the EU and PTMM agree d on the necessary corrections and drafted a list of 
documents collected during the verification. PTMM never made the point that any result of 
the verification had not been disclosed. By denying any relevance to those factual elements, 
the Panel interprete d Article 6.7 in an abstract and formalistic way.  
24. Finally, the Panel went even further than the minimum disclosure that itself identified. It 
required a description of the verification process, detailed enough to enable the Panel to WT/DS442/AB/R/Add.1  
 
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  connect any correction  that was made with specific evidence that was verified or not during 
the investigation or with other events.  
25. Therefore, the EU requests the Appellate Body to reverse the Panel's conclusion in 
para. 8.1.d. 
5   THE PANEL ERRED IN T HE INTERPRETATION AN D APPLICA TION OF THE DSU, 
PARTICULARLY ARTICLE  12.1 OF THE DSU, AND  ITS ADDITIONAL WORKI NG 
PROCEDURES CONCERNIN G BUSINESS CONFIDENT IAL INFORMATION  
26. The Panel designated as BCI and redacted from the public version of its report information 
which was already in the p ublic domain. The decision to bracket this information prejudges 
the comprehension of the Panel report. Furthermore, the Panel erred by not requiring 
justifications for Indonesia's requests for specific bracketing, as well as by not requiring non -
confident ial summaries of the bracketed information.  
27. The above constitutes an error in the interpretation and application of Article 12.1 of the 
DSU and Paragraphs 1 and 9 of the Panel's Additional Working Procedures Concerning BCI. 
For the same reasons, the Panel also acted inconsistently with Article 12.7 of the DSU by 
over-bracketing and, therefore, under -reporting to the DSB, as well as with Article 10.1 of 
the DSU. Finally, it also acted inconsistently with Article 11 of the DSU by failing to require 
justificat ions to Indonesia and by failing to comply with its own Procedures.  WT/DS442/AB/R/Add.1  
 
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  ANNEX B -3 
EXECUTIVE SUMMARY OF  THE EUROPEAN UNION'S  APPELLEE'S SUBMISSIO N 
1   INTRODUCTION  
1. In this executive summary, the European Union ("EU") summarizes the arguments 
presented to the Appel late Body in its Appellee Submission.  
2   BACKGROUND AND THE M EASURES AT ISSUE  
2. The contested measure expired on 12 November 2016, as communicated to the Panel and 
Indonesia soon after. Since the sole measure at issue no longer exists, Indonesia's appeal is 
inconsistent with provisions within Article 3 of the DSU, and, therefore, ruling on the matters 
raised by Indonesia is unnecessary. These claims are incorporated by reference in the 
present submission from the EU's Other Appellant Submission.  
3. Turning to the case, in 2010 the EU initiated an anti -dumping investigation regarding 
imports of certain fatty alcohols and their blends, originating inter alia in Indonesia. 
Two Indonesian producers – PT Musim Mas ("PTMM") and Ecogreen, as well as their related 
traders – ICOF-S and EOS, respectively, were investigated.  
4. A Sale and Purchase Agreement ("SPA") between PTMM and ICOF -S was among the 
evidence. It provides for an ICOF -S "mark -up", charged exclusively on export sales of 
PTMM  products as payment for certain "funct ions, obligations and risks" – and their 
associated expenses – assumed by ICOF -S in respect of these sales. The SPA constitutes the 
entire agreement between the companies.  
5. During the investigation, the issue of the appropriateness of export price adjustmen ts for 
PTMM and Ecogreen, reflecting the involvement of their related traders, was deliberated. 
Pursuant to the EU Basic Anti -Dumping Regulation ("Basic Regulation"), an adjustment was 
made for both. ICOF -S was found to have similar functions to an agent o n a commission 
basis pursuant Article 2(10)(i) of the Basic Regulation. No adjustment was made for 
PTMM's  domestic sales. The adjustment for Ecogreen was later revised, however, 
PTMM's  adjustment remained due to its different factual situation.  
6. Another is sue was whether PTMM and ICOF -S constituted a single economic entity ("SEE"). 
The EU did not consider so, in light of the content of the SPA, the export ICOF -S mark -up, 
the direct invoicing of domestic sales to PTMM and the sale activities of ICOF -S of pro ducts 
from other producers.  
7. The findings of the investigation were crystalized in three acts – Council Regulation (EU) 
No. 446/2011 of 10 May 2011, Council Implementing Regulation (EU) No. 1138/2011 of 
8 November 2011, and Council Implementing Regulation (EU) No. 1241/2012 of 
11 December 2012. The three determinations were the subject of the panel proceedings 
between the parties.  
3   INDONESIA'S CLAIM OF  THE PANEL'S LEGAL  ERROR UNDER ARTICLE 2.4 OF 
THE ADA 
8. The Panel established its understanding of Article 2 .4 as mandating for investigating 
authorities to make a fair comparison between export price and normal value by making 
allowances for proven differences which have an impact, or are likely to have an impact, on 
the price of the transactions in an unequal manner. It based this on the text of Article 2.4 
and WTO jurisprudence, finding that adjustments must be made only for expenses linked to 
either the export or domestic side of a transaction, or to both but in different amounts.  
9. Indonesia's claim of error is predicated on the assumption that the correct legal standard 
under Article 2.4 of the ADA requires an examination of the relationship between affiliated WT/DS442/AB/R/Add.1  
 
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  parties. However, Indonesia did not demonstrate how the relationship between affiliated 
parties is r elevant for adjustments for commissions paid to a related trader only for export 
sales. Indonesia's reading finds no support in the text of the provision, nor in the case law 
referred to. In fact, the Appellate Body held, in one case referred to, that an A rticle 2.4 
adjustment may be necessary even when the reseller is an affiliated company. Moreover, in 
another case, "supporting" Indonesia's deliberation of the criteria for delimiting when legally 
separate entities form an SEE, Indonesia itself argued that  an adjustment was necessary for 
the interference of a trader that formed a SEE with a producer.  
10. Indonesia's claim of error is also based on a partial and incorrect reading of the 
Panel  Report, further examined below. Indonesia disputes the sequence, wher eby the Panel 
established the Article 2.4 legal standard, examined the EU's actions and only then analysed 
Indonesia's arguments, criticizing the drafting technique chosen by the Panel rather than the 
legal standard applied. However, the Report should be r ead in a holistic way.  
11. The Panel examined Indonesia's SEE argument, however, determined that the existence of a 
SEE was not dispositive of whether a given mark -up qualifies as a difference which affects 
price comparability under Article 2.4. Regardless of the existence of a SEE, a transaction 
could affect export prices and normal value in different manners and, would, therefore, 
require allowances to be made. The Panel did not ignore the argument, nor did it 
misconstrue the importance of the question whethe r a SEE exists.  
12. Finally, with regard to the amount of the adjustment, Indonesia never made a separate 
claim disputing it and, therefore, the Panel did not examine the issue. As this issue was not 
covered in the Panel Report, it should also not be examined in the appeal procedure, 
pursuant to Article 17.6 of the DSU.  
13. Moving to the EU's factual findings, the adjustments made by the EU authorities were based 
on the findings that (1) the ICOF -S mark -up was exclusively linked to export sales and 
(2) ICOF-S had functions similar to those of an agent working on a commission basis. The 
Panel deemed both findings reasonable.  
14. Indonesia argues that the Panel erred by finding that ICOF -S had functions similar to an 
agent on a commission basis, and by characterising th is as a "factual" finding. The finding is 
irrelevant from a WTO law viewpoint and for the Panel, since no claim of "as such" 
inconsistency of EU domestic law with WTO law was made. The Panel rightly characterized 
these determinations as "factual" findings.  Furthermore, the Panel did not consider this to be 
part of the Article 2.4 legal standard, but only examined the evidentiary support for the 
authorities' findings. It, nevertheless, looked at Indonesia's arguments and did not err in 
finding that the SPA h ad further functions besides being a transfer pricing agreement. 
ICOF-S' agent -like functions are also supported by Indonesia's own agent definition as 
"[n]o sale, no commission".  
15. The Panel did not err in analysing whether adjustments may be made to expor t price for 
sales, general and administrative (SG&A) expenses and profits. According to Indonesia, 
within an SEE expenses and profits are incurred for the SEE as a whole. Its claim of error is 
predicated on the assumption that the degree of affiliation is crucial for Article 2.4 
adjustments. The arguments of this claim were rejected by the Panel.  
16. The Panel relied on jurisprudence to argue that price components reflect the particular 
circumstances of the sale, beginning with the cost of production and sale and an amount of 
profit and adding an amount for costs and profits for each successive participant in the 
distribution chain (their SG&A and profit). EU authorities disaggregated the mark -up into 
SG&A and profit components only to properly quantify the adj ustment, since the mark -up 
was designed to cover the costs of ICOF -S' services. The Panel rejected Indonesia's 
SEE argument, since intervention of downstream participants may result in additional costs 
and profits regardless of the existence of a SEE.  
17. The Panel also did not err in finding that the adjustment did not result in an asymmetrical 
comparison. Indonesia claims that making adjustments for SG&A expenses and profits for 
entities within a SEE leads to an asymmetrical, unfair comparison under Article 2.4. This is WT/DS442/AB/R/Add.1  
 
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  predicated on the wrong assumption that the existence of a SEE is a key issue for Article 2.4 
adjustments, which was rejected by the Panel. Furthermore, as a matter of fact, the EU did 
not establish a dumping margin for the SEE constituted by PTMM and ICOF -S, but 
established duties only with regard to PTMM's products.  
18. Regarding the section of the Panel Report challenged, the Panel examined the price 
components of both export price and normal value, to determine whether their comparison 
was fai r. Rightly basing itself on the P&L submitted by PTMM, the Panel found that PTMM 
incurred the same costs for both domestic sales and export sales, the only difference being 
the involvement of ICOF -S with regard, exclusively, to export sales. The Panel did not assess 
the correctness of the value of the allowance made, since Indonesia did not dispute it.  
19. Contrary to Indonesia's argument that the deduction of SG&A costs and profits within a SEE 
depends on the location of the related trader (in or outside of t he importing market), the 
EU argues that the text of Article 2.4 confirms that the existence of affiliation between 
companies is not dispositive of whether adjustments are warranted.  
20. Finally, despite Indonesia's arguments, the EU did not treat PTMM and ICO F-S as a SEE 
under Article 6.10 of the ADA. This new claim was introduced at a late stage of the 
Panel  proceedings, limiting the EU's due process rights and the interests of third parties, 
who could not be aware of it. Unsurprisingly, the Panel did not exp lore it in depth. 
Furthermore, Indonesia's claim would mean that the export price of a SEE should be 
constructed in compliance with Article 2.3, rather than through an adjustment under 
Article  2.4, however the Panel request does not contain any independent  or principal claims 
based on Article 2.3. Therefore, it did not fall within the Panel's remit and should not be 
considered by the Appellate Body.  
21. In any event, Indonesia's claim is unfounded. First, no single dumping margin under 
Article  6.10 was establi shed for PTMM and ICOF -S. Second, EU authorities treated the 
two companies as related throughout the proceedings, but never made a SEE finding, as this 
was not required under WTO law. Third, since they were related, the EU, naturally, took the 
price for th e first sale to an unaffiliated customer in the importing country as a start. 
Fourth,  the EU did not construct the export price, but distinguished between sales from 
ICOF-S to unrelated customers in the EU and to the related EU trader ICOF -E. Furthermore, 
since ICOF -S and PTMM were related, the authorities re -examined the ICOF -S mark -up, 
basing their findings on facts of the case and reaching an adjustment close to the mark -up 
in the SPA.  
4   THE PANEL'S STANDARD  OF REVIEW  
22. Although Indonesia claims the Panel erred in applying the relevant standard of review and 
sets arguments to that end, it does not seek to reverse any part of the Report, setting out 
such standard. Nevertheless, the EU sets out its understanding of the Panel's proper 
standard of review.  
23. First, a balanced approach is required by the Panel with regard to the degree of control 
exercised over an authority – lying between complete deference and de novo review. 
Similarly, there is no absolute rule on the submission of arguments before the panel – not all 
arguments must have been submitted during the investigation, nor must they all be 
apparent from the reasoning of the contested measure. The same applies with regard to the 
standard of reasoning and the presentation of evidence. These should be asses sed on a 
case-by-case basis.   
24. Additionally, the entire record of evidence could be relevant in WTO proceedings. Contrary to 
Indonesia's view, defendants and the panel should be able to make comments on the 
substance of contradicting evidence, not specific ally referred to in a measure, without these 
comments being automatically considered ex post rationalization or a de novo assessment. 
This depends on the substantive and procedural context of each case. Furthermore, it should 
be permissible for a WTO litig ant to be able to refer to material beyond the "record" of a 
particular dispute, instead of artificially sealing it off.  WT/DS442/AB/R/Add.1  
 
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  25. "Silence" on the part of an authority should not entitle an interested party to assume that 
the evidence submitted will be expressly " used" in the measure. The authority is to examine 
and weigh the evidence and make determinations. A requirement to avoid "silence" would 
create an interminable re -iteration between the authority and parties. A better approach 
would be to require a panel to  take into account the overall substantive and procedural 
context when addressing evidence on the record, which is not specifically referenced in the 
measure or disclosure. As panel litigation may be very complex, this approach would be 
balanced and reason able.  
5   SECTION 7.3.5.1. OF THE PANEL REPORT  
26. Indonesia accuses the Panel of pre -judging the EU's compliance with Article 2.4 before 
addressing its arguments, claiming a violation of Article 2.4 and (potentially) of Article 11 of 
the DSU. The fact that the Panel was then, supposedly, influenced by its own analysis was a 
breach of the burden of proof and Indonesia's due process rights under Article 17.6 of the 
ADA and Article 11 of the DSU.  
27. First, these claims are directed against the structure and procedure , rather than the 
substance of the Panel Report. Second, Section 7.3.5.1 must be assessed in the context of 
Section 7.3 of the Report as a whole. Before Section 7.3.5.1., the Panel set out the disputed 
issue, the parties' positions, and the applicable lega l standard, demonstrating understanding 
of the matter. After it, the Panel examined Indonesia's arguments regarding the compliance 
of the mark -up adjustment with Article 2.4 in light of the relationship between PTMM and 
ICOF-S.  
28. Many of the arguments, subm itted by Indonesia, are matters of EU, rather than WTO law. 
The Panel was careful to distinguish between EU and WTO law, mindful of its obligation to 
make an objective assessment under WTO law, while examining the reasonableness of the 
EU authorities' find ings in the circumstances of the measure's adoption. The EU law 
characterisation of a particular fact pattern as consistent or not with the Basic Regulation is 
a question of fact, while the consistency of the contested measure with Article 2.4 of the 
ADA i s a question of both law and fact. The Panel first engaged with the EU law facts before 
proceeding to its WTO law analysis and it, therefore, did not pre -judge its assessment under 
WTO law. Even after finding there was sufficient evidence to support the au thorities' finding 
of a difference affecting price comparability, the Panel examined the objectivity of the 
authorities' evaluation before deeming the standard of Article 17.6(i) met.  
29. Indonesia neglects the carefully structured Panel Report. Indonesia dis putes a section which 
is intermediary, rather than final for the Panel's conclusions. This drafting approach was 
necessitated due to the blend of WTO and EU legal arguments, presented by Indonesia to 
the Panel.  
30. Furthermore, Indonesia wrongly claims that t he Panel's actions are in violation of Article 2.4. 
Article 2.4 does not impose any obligations on panels. Furthermore, Indonesia does not 
dispute the parts of the Report, setting out the legal standard of Article 2.4 (even if it claims 
that the Panel did not articulate a legal standard). Moreover, a Panel Article 2.4 violation 
could exist only as a consequential claim to a violation of Article 11 of the DSU, however, 
how one follows from the other is unclear.  
31. Finally, Indonesia invokes Articles 17.6(i) an d (ii) of the ADA within an appeal under 
Article  11 of the DSU, however, those provisions refer to interpretation, while Article 11 of 
the DSU relates to the facts. Furthermore, Indonesia turns to the Appellate Body for 
"comprehensive guidance" as to how t o properly present its claim, which it is not entitled to 
do. The same applies with regard to Indonesia's lack of explanation as to its "direct export 
sales" argument.  
6   THE PANEL'S ALLEGED "DE NOVO  REVIEW" OF CERTAIN E XHIBITS SUBMITTED BY  
INDONESIA AND TH E EUROPEAN UNION  
32. Indonesia accuses the Panel of conducting a de novo review of certain exhibits and 
complains that the EU offered an ex post explanation. It claims that a silence in the measure WT/DS442/AB/R/Add.1  
 
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  precludes a panel from reviewing such matters without violati ng the due process rights of 
interested parties and conducing a de novo review.  
33. Indonesia's extreme approach to the problem would mean that any document that is on the 
record but not expressly referenced in the measure that is "ambiguous" can be brought t o a 
panel by the complainant, but in no case are the defendant or the panel allowed to engage 
in ex post explanation or de novo review. The complainant would, then, win on this point 
regardless of the substantive merits of the document in question. We argu e for a more 
even-handed approach. In the present case the Panel was responsive to the evidence 
presented by Indonesia and its representations regarding it. This would not justify reversal 
and completion of the legal analysis of the Panel.  
34. The EU also dis agrees as to what de novo review means. A panel should not be precluded 
from making substantive comments on a specific piece of evidence. Indeed, the panel is 
obliged by Article 11 of the DSU to make an objective assessment, including of the facts.  
35. Indone sia also raises certain arguments with regard to the specific exhibits of evidence it 
refers to. With regard to Exhibit IND -47, Indonesia does not appeal the factual findings in 
the Report and, therefore, the Appellate Body should rely on it, rather than I ndonesia's 
factual assertions concerning the "nature and significance" of that evidence. The claim is a 
procedural, not a substantive one.  
36. Regarding the company -internal verification notes, since there are no agreed written 
minutes of the verification, th e EU argues they can only be used against Indonesia, due to 
their nature of an admission against interest. Regarding IND –18, 19, and 34, the Panel did 
indeed address the evidence, referred to. As it found the Article 2.4 legal standard to be 
independent of  determinations on the existence of SEEs, it did not err in holding that the 
authority was under no obligation to refer to this evidence.  
37. Regarding the substance of the Panel's analysis, it should be read in its entirety. The Panel 
set out the content of the SPA and considered the analysis carried out by the EU authority, 
and the opportunity given to PTMM to rebut these findings, concluding that the authority's 
findings were sound. It was reasonable for the Panel to consider these circumstances in 
making a n objective assessment of the matter.  
7   ALLEGED IGNORING OR SUMMARY DISMISSAL OF  ALLEGEDLY KEY ARGUME NTS 
AND EVIDENCE CONCERN ING THE SPA  
38. Since the existence of the SPA was uncontested, the Panel relied on it and extensively 
referred to it in its Report. Al though the Panel did not refer to each exhibit specifically, it 
explained why it rejected Indonesia's arguments – the irrelevance of a SEE for Article 2.4, 
the mark -up in the SPA as a price difference necessitating an adjustment, the "entire 
agreement" cla use in the SPA and the exclusive application of the SPA to export sales, the 
allocation of risk clause, the difference in factual situations between PTMM and Ecogreen. 
The Panel, therefore, did not ignore any of Indonesia's arguments, even if it did not re fer to 
them one by one.  
8   INDONESIA'S REQUEST FOR COMPLETION OF TH E LEGAL ANALYSIS  
39. Although the Appellate Body will not reach this question, as it would not reverse the Panel's 
findings under Article 2.4, the EU considers that it could not complete the ana lysis, as the 
applied EU law does not indicate inconsistency with Article 2.4 of the ADA.  WT/DS442/AB/R/Add.1  
 
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  ANNEX B -4 
EXECUTIVE SUMMARY OF  INDONESIA'S APPELLEE 'S SUBMISSION  
1  THE EU'S APPEAL OF T HE PANEL'S FINDING U NDER ARTICLE 6.7 SHO ULD BE 
REJECTED1  
1.1.   Indonesia claimed bef ore the Panel that the EU had failed to disclose the results of the 
verification visit, contrary to Article 6.7 of the Anti -Dumping Agreement. The Panel agreed.  
1.2.  The Panel properly interpreted Article 6.7 to require the investigating authority to provide 
results of verification in the sense of "what is achieved, brought about or obtained in the course of 
the on -the-spot verifications". The Article 6.7 obligation is a due process right of interested parties, 
including the investigated company and the applica nts. The Panel clarified that the obligation was 
"unqualified" and "rest[ed] entirely on the investigating authorities".  
1.3.  The EU appeals both against the Panel's interpretation of Article 6.7 and its application of its 
interpretation to the case before it.  Both aspects of the EU's appeal should be rejected.  
1.4.  The EU makes a general claim that the Panel required the investigating authority to provide 
excessively detailed "results" of the verification. However, the EU fails to show how the Panel erred 
in its l egal interpretation of Article 6.7 or to show that the Panel's interpretation would burden 
investigating authorities. The EU has also failed to show any error in the Panel's application of its 
standard in this case.  
1.5.  The EU improperly attempts to conflate the requirements of Article 6.7 regarding the 
disclosure of the verification results with those of Article 6.9 regarding the essential facts. These 
are different concepts. The EU's argument that the results of the verification are limited to those 
matters that become "essential facts" would, in effect, read the obligation to provide the results of 
the verification out of the Anti -Dumping Agreement. As the Panel correctly noted, the term "results 
of the verification" is not limited to the facts that will eve ntually form the basis of the decision to 
impose measures.  
1.6.  The term "results" must also be read in the context of the information the investigating 
authority requests from companies during verifications. The EU is incorrect to argue that the 
results of a verification "are essentially the documentary evidence that th[e] firm provides … but 
not assertions, statements, arguments (by the firm or the investigating authority"). The answers 
to the verifiers' questions may provide important context for documents s upplied in the 
questionnaire responses or at verification. This context may not be self -evident on the face of the 
documents themselves. In these circumstances, the answers provided by company officials may be 
at least as important as the documents themsel ves.  
1.7.  The four elements listed by the Panel as comprising the minimum requirements of the 
"results" encompass the core elements of any on -the-spot verification. The EU has failed to show 
in concrete terms that the Panel's standard requires an excessive lev el of detail, either in general 
or in the specific circumstances of this case.  
1.8.  The requirement to disclose the results of the verification is, in essence, a transparency and 
due process obligation. These obligations are not to be taken lightly. It is not clear why the 
EU resists compliance with this obligation so strenuously.  
1.9.  For these reasons, the EU's appeal should be rejected.  
                                                
1 This executive summary contains a total of 2,603 words ( including footnotes). Indonesia's appellee's 
submission contains a total of 29,582 words (including footnotes).  WT/DS442/AB/R/Add.1  
 
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  2  THE EU'S APPEAL ON T HE LAPSE OF THE PANE L'S AUTHORITY SHOULD  BE REJECTED  
2.1.  Shortly after the establishment of the Panel, a counse llor of the WTO Secretariat sent an 
email to the parties to propose a meeting to hear the parties' preferences for panellists. Indonesia 
replied by asking to postpone the meeting "while [a]waiting the development from Brussel[s]".  
2.2.  Before the Panel, the EU  submitted that Indonesia's reply amounted to a suspension of the 
Panel's work under Article 12.12 of the DSU. In its Report, the Panel rejected the EU's objection. It 
correctly set out a three -pronged legal standard of whether its authority had expired un der 
Article  12.12 of the DSU. The Panel found that the EU had not met the first prong of the legal 
standard  - i.e. whether Indonesia had made a request to suspend the work of the Panel. The Panel 
correctly declined to address the second and third prongs un der Article 12.12.  
2.3.  The Appellate Body has flexibility to approach the EU's appeal from two different angles. It 
may assess whether, as a matter of law, the suspension of the panel's work in Article 12.12 of the 
DSU refers to the work of a panel that has b een composed and begun its work. Alternatively, the 
Appellate Body may follow the Panel's approach and assess whether the EU sufficiently 
demonstrated that Indonesia indeed made a request to suspend the Panel's work through its email 
to the Secretariat.  
2.4.  The EU misstates the role of the Secretariat to argue that the Secretariat "act[ed] in the 
name of the Panel". Article 27.1 tasks the Secretariat with assisting  panels. This provision must be 
read in the context of Article 8.6, which requires the Secretaria t to propose names of panellists to 
the parties. When performing that function, the Panel is assisting the parties, not the panel.  
2.5.  In advancing its argument that the Secretariat acts "in the name of" a panel, the EU refers to 
the role of panel secretaries . Yet the EU fails to explain whether the WTO counsellor with whom 
Indonesia communicated was the secretary to the uncomposed panel so that it could be said that 
Indonesia in fact addressed the Panel in its email to this counsellor. In addition, panel secr etaries 
merely perform tasks pursuant to the panel's instructions; they do not make decisions "in the 
name of the panels".  
2.6.  Only a composed panel may decide to suspend its work. Article 12.12 of the DSU, first 
sentence, starts with "[t]he panel may suspend its work at any time …". The use of "may" affords 
discretion to the panel in determining whether to suspend its work following a request of the 
complainant. Moreover, the active voice in the phrase "[t]he panel may suspend its work …" in the 
first sentence  of Article 12.12 reflects the intention of the DSU negotiators to require a positive 
decision by the panel to suspend its work. It follows, logically, that only composed panels may 
take decisions pertaining to panels' work.  
2.7.  The context confirms that Artic le 12.12 refers to a composed  panel. As is clear from Articles 6 
to 16, the DSU contains a logical sequence governing all facets of a panel. The DSU does not 
contain a "back -and-forth" set of provisions. In addition, Article 12 of the DSU concentrates on t he 
procedure of the panel vis-à-vis the parties. Article 12 thus relates to the work of a composed 
panel.  
2.8.  The EU erroneously relies on Article 12.9 to assert that Article 12 also concerns matters prior 
to panel composition. A holistic reading of Articles 1 2.8 and 12.9 yields the opposite conclusion. 
Article 12.8 provides a general rule of six months for panel procedures counting from the 
composition of a panel, at the earliest. Article 12.9 establishes the possibility of an exception to 
the general rule. Th e time -frame in the last sentence of Article 12.9 is not a time -frame for the 
panel's "work". Rather, it contains the maximum time a complainant may expect to have a panel 
report from the moment a panel is established.  
2.9.  Accordingly, the logical sequence of the DSU, and the structure of Article 12, confirm that the 
work of the panel under Article 12.12 refers to that of a composed panel.  
2.10.   Moreover, prior practice confirms that Article 12.12 refers to a composed panel. Panels in 
about 29 disputes have made a p ositive decision to "agree" to suspend its work upon a request of 
the complainant. This confirms that a panel must be composed in order to decide on the 
suspension of its work.  WT/DS442/AB/R/Add.1  
 
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  2.11.   In response, the EU relies on document WT/DS420/7 in US – Carbon Steel (Korea)  to argue 
that Article 12.12 may apply between panel establishment and composition. This document, 
however, served the purpose of informing WTO Members of Korea's communication to suspend 
that uncomposed panel's work. The Secretariat did not assess whether the Korean request 
effectively constituted a suspension under Article 12.12 of the DSU. In fact, the relevant dispute 
settlement sections of the WTO website reveal that the Secretariat has not treated Korea's request 
as a suspension under Article 12.12.  
2.12.   Finally, the EU raises six claims under Article 11 of the DSU. First, the EU erroneously 
challenges the interpretation and application of Article 12.12 under Article 11 of the DSU. This is 
an issue of law under Article 17.6. Second, the EU unjustifiably cri ticizes the Panel for adopting the 
standard of review it did. However, this standard complies with the Panel's duty under Article 11 of 
the DSU. Third and fourth, the EU incorrectly faults the Panel for not addressing issues concerning 
the second prong of the legal standard under Article 12.12  - whether the Panel suspended its 
work. Since the Panel found that the EU had not met the first prong  - that Indonesia never made a 
request under Article 12.12  - the Panel correctly declined analysing arguments and ev idence 
concerning the second step of the legal standard. Fifth, the EU is not correct in criticizing the Panel 
for regarding its finding "as a matter of fact". This finding falls under Article 17.6 of the DSU 
regardless of the Panel's characterization of i ts finding. Sixth, the Panel gave relevant and 
sufficient reasons to support its finding that Indonesia had not requested the suspension of the 
Panel's work under Article 12.12. Accordingly, all claims under Article 11 of the DSU should fail.  
2.13.   Accordingly, Indonesia requests the Appellate Body to dismiss the EU's other appeal 
concerning the Panel's finding in paragraphs 7.29 and 8.1(a) of its Report.  
3  THE EU'S APPEAL CONC ERNING THE APPELLATE  BODY'S JURISDICTION  
3.1.  Indonesia is very disappointed by the EU's asser tion that Indonesia is "misus[ing]" the appeal 
procedure. Indonesia is simply making use of its right to appeal parts of a WTO panel report.  
3.2.  The EU fails to provide any arguments under Article 17 of the DSU, which is the provision 
governing Appellate Body  jurisdiction. The EU questions the Appellate Body's jurisdiction on the 
basis of the measure at issue. But once a measure is properly before a panel, nothing in Article 17 
(or, indeed, Article 6) of the DSU suggests that the Appellate Body may not have or  may lose 
jurisdiction of appeals of questions of law contained in the panel report regarding that measure. 
The EU never argued before the Panel that the measure challenged by Indonesia was not properly 
within the Panel's jurisdiction.  
3.3.  The EU also appears  to argue that the Appellate Body should decline to exercise its validly 
established jurisdiction. But Article 17.12 directly contradicts the EU's argument. Moreover, the 
Appellate Body has previously stated that Articles 11 and 23 of the DSU preclude a pa nel from 
declining to exercise validly established jurisdiction. These considerations apply equally to the 
Appellate Body. It is impossible to see how the Appellate Body would fulfil its obligations under 
Articles 11, 17.6 and 17.12 of the DSU if it were t o decline to exercise its jurisdiction.  
3.4.  Moreover, when the Appellate Body is called upon to review a panel's findings, these findings 
already exist and could be adopted by the DSB, with all the legal consequences that this adoption 
entails. Before the Pan el's findings have these effects, Indonesia is entitled by the DSU to have 
these findings reviewed by the Appellate Body. This is precisely why Article 17.12 requires the 
Appellate Body to address "each of the issues" brought before it. This is also why th e 
Appellate  Body does not exercise "judicial economy".  
3.5.  The EU also argues that, because the measure has expired, the dispute has ceased to exist. 
But the Appellate Body has consistently found that panels maintain jurisdiction with respect to 
measures that  expired after the panel's establishment. The only difference is that panels are not 
entitled to make recommendations. These principles continue to apply when the Appellate Body is 
seized of an appeal against a panel report. The Appellate Body's jurisdicti on builds on that of the 
Panel. The Appellate Body's task also does not hinge on the continued legal force of a measure. 
The Appellate Body is not called to determine, principally, whether a measure is consistent or not 
with WTO law. Instead, the Appellate  Body's mandate is to review a panel's findings.  WT/DS442/AB/R/Add.1  
 
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  3.6.  Moreover, contrary to what the EU alleges, Indonesia is not seeking to obtain an authoritative 
interpretation under the WTO Agreement. The EU also incorrectly quotes Indonesia's statements to 
the panel, arg uing that this demonstrates that Indonesia agreed with the EU on certain points of 
principle. These quotes have nothing to do with the issue at hand, and were made at the beginning 
of the panel proceedings, on a different issue, well before a panel ruling was issued and before the 
measure expired.  
3.7.  The Panel also correctly maintained its recommendations in this dispute, because the expiry 
of the EU's measure came after the panel record had closed. This was entirely consistent with the 
Appellate Body's guidan ce concerning new evidence in late stages of panel proceedings.  
4  THE EU'S APPEAL CONC ERNING THE PANEL'S T REATMENT OF BCI SHOU LD BE 
REJECTED  
4.1.  The EU further challenges on appeal the Panel's treatment of three sentences as business 
confidential information (B CI). These three sentences were submitted by Indonesia as 
Exhibit  IDN-33 (BCI) and Exhibit IDN -24 (BCI) appended to Indonesia's first written submission 
and were clearly marked as BCI.  
4.2.  The EU's arguments should be rejected for several reasons. First, Indon esia bracketed the 
information that had been treated as confidential during the investigation. Moreover, the fact that 
the EU's General Court disclosed that information is not sufficient to remove protection of that 
information. The question is whether tha t information has properly been disclosed. Second, the 
EU bore the burden to prove that the General Court was authorized to disclose this information, 
despite it being treated as confidential during the investigation. The EU failed to meet that burden. 
Third, the EU raised its objection too late in the Panel's proceedings  - a year after Indonesia 
submitted the bracketed information. The EU's objection was, therefore, untimely.  
4.3.  Moreover, the EU's argument that the Panel should have asked Indonesia to provide  
justifications for treating certain information as confidential and to submit a non -confidential 
summary has no foundation in the DSU or in previous practice. The EU's appeal would place an 
excessive burden on the parties (especially developing countries)  and panels. Particularly, as a 
recurrent user of the WTO dispute settlement mechanism, the EU should reflect on whether this is 
the standard it wishes to be adopted.  
4.4.  Accordingly, the Appellate Body should reject the EU's appeal concerning the treatment o f 
certain information as BCI.  
5  CONCLUSION  
5.1.  For the above reasons, Indonesia respectfully requests that the EU's appeal be dismissed in 
its entirety and the Appellate Body uphold all of the Panel's findings challenged by the EU.  
 
_______________  
 
 
 WT/DS442/AB/R/Add.1  
 
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  ANNEX C  
ARGUMENTS OF THE THIR D PARTICIPANTS  
Contents  Page  
Annex  C-1 Executive summary of the United States' third participant's submission  C-2 
 
 WT/DS442/AB/R/Add.1  
 
- C-2 - 
 
  ANNEX  C-1 
EXECUTIVE SUMMARY OF  THE UNITED STATES' T HIRD PARTICIPANT'S S UBMISSION  
I. ARTICLE 2.4 OF THE A D AGREEMENT1 
1. Indonesia argues that the Panel applied an incorrect legal interpretation of Article 2.4 in 
determining that the authorities' deduction to the export price for a commission paid to a trader 
was not improper. Indonesia claims the Panel erred in finding that a determination of whether the 
producer and trader formed part of a single economic entity ("SEE") was not dispositive.  
2. The essential requirement for any adjustment under Article 2.4 is that the relevant factor 
must affect price comparability. The United States agrees with the Panel that whether an entity 
constitutes an SEE would not be dispositive of the need for adjustments under Article 2.4, and that 
depending on the underlying facts, transactions between affiliated entities may impact price 
comparabili ty.  
II. ARTICLE 17.6 OF THE AD AGREEMENT AND DSU  ARTICLE 11  
3. Indonesia claims the Panel failed to engage in an objective assessment, as required by 
Article 11, because it concluded that the authorities did not act inconsistently with Article 2.4 of 
the AD  Agreement before  addressing Indonesia's arguments and evidence. The United States does 
not view a panel's task to be resolving claims independent of the specific arguments that are 
raised by the parties. However, not every error rises to the level of a br each of Article 11. In this 
case, the Panel did address Indonesia's arguments later in its report. The United States also notes 
that a panel has no obligation to address in its report all arguments and evidence raised by a 
party.  
III. THE CONTESTED MEASUR E'S ALLEGED EXPIRY  
4. The EU argues that the Panel erred in making recommendations and that Indonesia's appeal 
should be dismissed because the contested measure expired before the Panel's report was 
circulated. However, this alleged expiry is not a fact found  by the Panel, and the Appellate Body 
may not consider new facts on appeal. Therefore, the EU's appeal must be rejected.  
5. The Appellate Body and panels have consistently refused to consider new evidence 
submitted during interim review. Since the EU submitt ed evidence of the expiry after the Panel 
concluded its interim review, the Panel appropriately did not consider it. The Appellate Body also 
may not consider it, since DSU Article 17.6 limits the scope of Appellate Body review to legal 
matters developed by  the panel. Nothing in the DSU suggests that the Appellate Body or the 
Director -General could modify the record of the Panel's proceedings to add the evidence of expiry.  
6. The evidence of expiry was also irrelevant. Panels are tasked with determining whethe r the 
measures at issue are consistent with the relevant obligations at the time of establishment of the 
Panel.  The alleged expiry of the EU measure just before circulation of the panel report is not 
relevant to the legal situation as of the date of the Pa nel's establishment.  
7. Based on the foregoing, the Appellate Body's analysis of the EU's appeal should end there.  
8. To the extent the Appellate Body considers the EU's substantive arguments, the United 
States considers the Panel's making of recommendations on  the contested measure to be 
consistent with the requirements of the DSU. Pursuant to Articles 7.1 and 6.2, it is the challenged 
measures, as they existed at the time of the panel's establishment, that are within the panel's 
terms of reference and on which  the panel should make findings. Pursuant to Article 19.1, a panel 
must make a recommendation where it has found a measure within its terms of reference to be 
                                                
1 This executive summary contains a total of 1230 words (including footnotes), and the 
U.S. third participant submission contains 13241 words (i ncluding footnotes).  WT/DS442/AB/R/Add.1  
 
- C-3 - 
 
  inconsistent with the relevant Member's obligations. The expiry of the measure does not change 
this.  
9. Other panels and the Appellate Body have reached similar conclusions. Statements by the 
Appellate Body suggesting that a recommendation may not be required, for example in US – 
Certain EC Products , were made in obiter dicta . That Appellate Body report  does not examine the 
text of DSU Article 19.1 nor seek to reconcile its obiter dicta with the clear meaning of that text.  
10. Defining the scope of a dispute based on the measures at the time of panel establishment 
benefits parties by balancing the interests of complainants and respondents, and by preventing 
Members from avoiding compliance by withdrawing, then re -imposing, offending measures.  
11. The United States also views the EU's request that Indonesia's appeal be dismissed to be 
inappropriate and without le gal authority. The Appellate Body is charged by the DSU to address 
the issues raised by the parties and to recommend that an offending Member bring any WTO -
inconsistent measure, as it existed at the time of panel establishment, into conformity. This duty i s 
not affected by expiry of the measure.  
IV. ARTICLE 12.12 OF THE  DSU 
12. The EU appeals the Panel's finding that the DSB authority for the panel proceedings had not 
lapsed under Article 12.12.  
13. The United States submits that the circumstance in Article 12.12  arises only when there is a 
panel to which the complaining party may direct its "request," and only if the panel has decided to 
exercise its discretion to accede to that request. Neither can occur before a panel has been 
composed. Further, the "work" of t he panel refers to the examination by the panel, once 
composed, of the matter referred to it. Therefore, Indonesia's request to the Secretariat  to 
suspend a meeting to compose  the panel would not constitute a request to the panel  that it 
"suspend its work." The United States also considers that the proper interpretation and application 
of Article 12.12 lead to a desirable policy outcome.  
V. ARTICLE 6.7 OF THE A D AGREEMENT  
14. The EU argues that the Panel's interpretation of Article 6.7 requires, in practice, a  
description of the investigation process.  
15. The United States considers that, at a minimum, Article 6.7 requires that the authority's 
verification report include discussion of information that was verified, not verified, or corrected 
with respect to essent ial facts referenced in Article 6.9. For example, the term "essential facts" 
relates necessarily to the determination of normal value and export prices, as well as to the data 
underlying those determinations. Accordingly, information verified or corrected at verification 
relating to these "essential facts" must be disclosed. On the other hand, trivial or immaterial 
aspects of the verification need not be disclosed.   
VI. BUSINESS CONFIDENTIA L INFORMATION ("BCI" ) 
16. The EU argues that the Panel's handling of BC I was inconsistent with DSU Articles 12.1 and 
12.7 and the Panel's Additional Working Procedures.  
17. The United States considers that Article 12.1 does not provide an adequate legal basis for 
the EU's claim. Even if the Panel's bracketing could be considered  contrary to DSU Appendix 3 or 
the Additional Working Procedures, there is no basis to say that the Panel's decision to do 
"otherwise" after consulting the parties is inconsistent with the requirements of Article 12.1. The 
United States also considers that  Article 12.7 does not require a panel to disclose all factual 
findings in its report. In determining whether the Panel complied with Article 12.7, there must be 
consideration of the degree to which a bracketed fact is material to the "basic rationale behi nd any 
findings and recommendations."  
_______________  WT/DS442/AB/R/Add.1  
 
- D-1 - 
 
  ANNEX D  
PROCEDURAL RULINGS  
Contents  Page  
Annex  D-1 Procedural Ruling of 13 June 2017  regarding additional procedures for the 
protection of business confidential information  D-2 
 
 WT/DS442/AB/R/Add.1  
 
- D-2 - 
 
  ANNEX D -1 
PROCEDURA L RULING OF 13  JUNE 2017  
1  REQUESTS BY INDONESI A 
1.1.  On 11  May 2017, Indonesia addressed a letter to the Presiding Member of the Appellate Body 
Division hearing this appeal. In its letter, Indonesia made two requests. First, Indonesia requested 
the Division to adopt, pursuant to Rule  16(1) of the Working Procedures for Appellate Review 
(Working Procedures), additional procedures for the protection of certain business confidential 
information  (BCI) in these appellate proceedings. Second, Indonesia requested leave  to modify the 
executive summary of its appellant's submission, which was submitted on 10  February 2017, by 
replacing the information enclosed within double brackets in paragraph  7.9 of that executive 
summary with non -confidential information.  
2  BACKGROUND AND ARGUMENTS OF THE  PARTICIPANTS  
2.1.  On 13 July 2015, following consultations with the parties, the Panel in this dispute adopted 
Additional Working Procedures Concerning Business Confidential Information (Panel's 
BCI Procedures)1. For purposes of the Panel p roceedings, the first paragraph of those procedures 
defined BCI as follows:  
… BCI is any information that has been designated as such by the party submitting 
the information and that was previously treated as confidential within the meaning of 
Article 6.5 of the Agreement on Implementation of Article VI of the General 
Agreement on Tariffs and Trade 1994 by the Commission of the European Union in the 
anti-dumping investigation at issue in this dispute. However, these procedures do not 
apply to any informatio n that is available in the public domain. In addition, these 
procedures do not apply to any BCI if the person who provided the information in the 
course of the aforementioned investigation agrees in writing to make the information 
publicly available.  
2.2.  The P anel's BCI procedures set out a number of modalities concerning how the parties, 
third parties, and the Panel would treat BCI in the course of the Panel proceedings. In accordance 
with those procedures, the Panel redacted certain BCI from the version of it s Report that was 
circulated to WTO Members on 16 December 2016.2  
2.3.  On 10  February 2017, Indonesia appealed certain issues of law and legal interpretation 
covered in the Panel Report. Indonesia's appellant's submission, the executive summary thereof, 
and it s appellee's submission are all marked as containing BCI, and certain information in those 
documents is enclosed within double brackets. On 15  February  2017, the European  Union filed a 
Notice of Other Appeal  and an other appellant's submission. The cover p age of the 
European  Union's other appellant's submission states "[[Contains information designated by 
Indonesia and the Panel as "BCI", subject to adjudication, as marked]]". The European Union's 
appellee's submission similarly states "[[Contains BCI as ma rked, subject to adjudication]]", and 
both of these EU submissions contain information enclosed within double brackets.  
2.4.  At the time of filing its other appellant's submission, the European  Union noted that 
no procedures governing the treatment of BCI had b een adopted in these appellate proceedings. 
The European  Union observed that, while the Panel's BCI  Procedures do not bind the Appellate 
                                                
1 Panel Report, para.  1.7. The Panel's BCI Procedures are attached as Annex A -2 to its Report.  
2 The information redacted from the circulated version of the Panel Report was less extensive than the 
information placed within double brac kets in the interim report provided by the Panel to the parties on 29 July 
2016. During the interim review stage, the European Union requested the Panel to review the designation of 
certain information as BCI in the interim report on the grounds that some such information was in the public 
domain and should thus not be treated as BCI. The extent of bracketing of BCI and of redaction of the same 
from the circulated version of the Panel Report is the subject of a claim of error raised by the European Union 
on appeal. (See the European Union's Notice of Other Appeal, WT/DS442/6, pp. 2 -3)  WT/DS442/AB/R/Add.1  
 
- D-3 - 
 
  Body, Indonesia had designated certain information as BCI in its appellant's submission and 
bracketed it accordingly. F or the European  Union, Indonesia was in effect requesting confidential 
treatment of such information pursuant to Article  18.2 of the Understanding on Rules and 
Procedures Governing the Settlement of Disputes (DSU). According to the European  Union, this 
meant that the European  Union and the third participants were to treat such information as 
confidential. Likewise, the Appellate Body was required not to disclose the designated information 
in its Appellate Body Report. The European  Union considered this to b e an acceptable way of 
proceeding, adding that this approach had the "advantage of not troubling the Appellate Body with 
the adoption of BCI  procedures where that is not necessary."3 
2.5.   The European  Union explained that, based on this understanding, it had a lso bracketed 
certain information in its other appellant's submission. However, the European  Union emphasized 
that this was without prejudice to its claim that the Panel "over -designated" information as 
confidential in the Panel proceedings. Furthermore, t he European  Union reserved its right to 
address the extent of the bracketing in Indonesia's appellant's submission.4 
2.6.  On 17  February 2017, Indonesia sent a letter requesting the Appellate Body Division hearing 
this appeal to agree to the confidential treatm ent of certain information designated as BCI 
pursuant to Article  18.2 of the DSU. Indonesia indicated that it had designated certain confidential 
information in its submissions as BCI by means of double brackets ("[[" and "]]"), and that this 
information m atched the information designated and treated as BCI by the Panel in this dispute. In 
its letter, Indonesia set out its understanding of what confidential treatment under Article  18.2 
would entail in the appeal proceedings. Indonesia further stated that, t o the extent that the 
Appellate Body agreed with its understanding, Indonesia did not request the adoption of separate 
procedures for the protection of BCI for these appellate proceedings.  
2.7.  By letter dated 20  February  2017, the Division invited the European  Union and the 
third parties to comment on Indonesia's letter. By letter dated 23  February 2017, the 
European  Union indicated that it shared Indonesia's understanding of the nature and consequences 
of Indonesia's request that certain information be treated  as confidential, namely that such 
treatment flows directly from the DSU and that, therefore, no additional ruling was necessary. The 
European  Union nevertheless cautioned that this was without prejudice to its challenge regarding 
"the extent of the bracke ting of information in the public domain, and the need for meaningful 
non-confidential summaries". None of the third parties commented on Indonesia's letter.  
2.8.  By letter dated 16  March  2017, the Division informed the participants that it did not "share 
the u nderstanding of the treatment of sensitive information pursuant to Article  18.2, outlined in 
Indonesia's letter of 17  February 2017". The Division explained that, pursuant to Articles  17.10 
and 18.2 of the DSU, the confidentiality of any submissions or inf ormation submitted in these 
appellate  proceedings was to be maintained. However, to the extent the participants in this appeal 
wanted the Division to undertake specific procedural steps not expressly contemplated under the 
DSU or the Working Procedures, su ch as excluding or redacting certain information from its 
Report, or imposing conditions on the composition of delegations or the content of discussions in 
an oral hearing, then the participants needed to request the specific treatment sought, explain 
why it was needed, and why the information in question warrants special and additional protection.  
2.9.  In addition, the Division noted that paragraph  7.9 of Indonesia's executive summary of its 
appellant's submission contained information enclosed within double b rackets. The Division 
understood such brackets to indicate that the information contained therein was designated as BCI 
in the proceedings before the Panel. The Division pointed out, however, that, as indicated in the 
last paragraph of the Guidelines in re spect of Executive Summaries of Written Submissions in 
Appellate Proceedings set out in the Appellate Body's Communication of 11  March  2015 
(WT/AB/23), as well as in the letter dated 6 January 2017, from the Director of the Appellate Body 
Secretariat to th e European Union and Indonesia, executive summaries submitted by participants 
are annexed in an addendum to the Appellate Body Report, and the content of such executive 
summaries is neither revised nor edited by the Appellate Body.  
2.10.   Lastly, the Division ind icated that although it was unable to agree to the request as 
formulated by Indonesia in its letter of 17  February  2017, this was without prejudice to any 
                                                
3 European  Union's other appellant's submission, para.  1. 
4 European  Union's other appellant's submission, para.  2. WT/DS442/AB/R/Add.1  
 
- D-4 - 
 
  decision that the Division might take if it were to receive a request containing reasons for adopting  
additional procedures for the protection of BCI in this appeal.  
2.11.   On 11  May 2017, Indonesia submitted a revised request to the Division. First, Indonesia 
requests the Division to adopt additional procedures pursuant to Rule  16(1) of the Working 
Procedures. Indonesia considers that the adoption of these procedures, above and beyond the 
standard or "general" layer of protection of confidential information reflected in Articles  18.2 and 
13.1 of the DSU, is necessary in the interest of fairness and orderly proce dures. Indonesia 
proposes BCI procedures similar to those adopted by the Appellate Body in US – Washing 
Machines .5 Indonesia further suggests that, pending the Appellate Body's findings on the 
European  Union's claims on appeal regarding the Panel's treatme nt of certain information as BCI, 
the Appellate Body extend BCI protection to all the information covered by Indonesia's request on 
a provisional basis, including the information for which the European  Union argues that no 
BCI treatment is warranted. Secon d, pursuant to Rules  16(1) and 18(5) of the Working 
Procedures, Indonesia requests leave to replace the bracketed information, at paragraph  7.9 of the 
executive summary of its appellant's submission, with non -confidential information. In Indonesia's 
view, such an adjustment would in no way change the meaning of this paragraph.  
2.12.   Indonesia explains that it seeks BCI protection for the following two categories of 
information: (i) information contained and treated as BCI in the Panel Report; and (ii) any 
additio nal information submitted as BCI by either party to the Panel, in the course of the Panel 
proceedings, where that information was marked as BCI and was treated as BCI in the 
anti-dumping investigation and fell into the same categories as the information ma rked as BCI by 
the Panel.  
2.13.   Indonesia advances several reasons to justify its request, and contends that the identified 
information warrants additional protection on the basis of "objective criteria", including some of 
those identified by the Appellate Body in EC and certain member States – Large Civil Aircraft .6 
Indonesia highlights that, other than the three instances of BCI protection in the Panel Report that 
have been explicitly challenged by the European  Union on appeal, there appears to be "full 
agreeme nt" between the European  Union and Indonesia that the information designated as BCI by 
the Panel warranted additional protection. Indonesia emphasizes the importance of ensuring 
continuity between the protection of BCI in domestic investigations, as provid ed for under 
Article  6.5 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs 
and Trade 1994 (Anti -Dumping Agreement), and the protection of BCI in WTO dispute settlement 
proceedings. For Indonesia, it follows that the fact that the information for which BCI protection is 
being sought in WTO dispute settlement was accorded BCI treatment in the underlying 
anti-dumping investigation is a relevant objective criterion for adopting BCI procedures in 
WTO dispute settlement. Indones ia adds that additional procedures are needed so as to ensure 
that the protection afforded to certain information in the domestic anti -dumping proceedings and 
in the Panel proceedings is not lost in these appellate  proceedings.  
2.14.   In its request, Indonesia al so explains that the information treated as BCI by the Panel is 
proprietary to the two privately held companies concerned, PT  Musim Mas (Indonesia) and ICOF -S 
(Singapore). These companies are not required to, and do not, publish information such as their 
corporate and ownership structure, nor about their operations, sales procedures, or mode of 
interaction between various sub -entities. Indonesia also maintains that the information for which 
BCI protection is being sought is, by its nature, confidential, bec ause it relates to the corporate 
structure, ownership, or operations of the two companies, including the details of their respective 
responsibilities in sales and marketing activities. In Indonesia's view, disclosure of this information 
could give rise to commercial harm and to an unfair advantage for the companies' competitors. In 
further support of its request, Indonesia sets out a table identifying in detail the five types of 
information in respect of which BCI protection is being sought7, and, for each of these: (i)  an 
                                                
5 Appellate Body Report, United States –Anti-Dumping and Co untervailing Measures on large Residential 
Washers from Korea , WT/DS464/AB/R/Add.1 , Annex  D-1, Procedural Ruling of 9  May 2016, paras.  17-20. 
6 Appellate  Body Report, EC and certain member States – Measures Affecting Trade in Large Civil 
Aircraft , WT/DS316 /AB/R , Annex  III, Procedural Ruling of 10 August 2010, para.  15. 
7 Indonesia seeks BCI protection for: (i) information concerning ownership and control structures with 
respect to PT Musim Mas, ICOF -S, and the Musim Mas Group, as well as the relationship be tween shareholders; 
(ii) information on the detailed content of investigation exhibit "Attachment PTMM -18"; (iii) the content of 
organizational charts setting out PT Musim Mas' corporate structure; (iv) PT Musim Mas' and ICOF -S' financial 
and other busines s data and figures from annual reports, other documents submitted in the investigation WT/DS442/AB/R/Add.1  
 
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  indication of where in the Panel Report and in Indonesia's submissions such information is 
included; and (ii)  identification of the "objective criteria" that justify the adoption of additional 
procedures to protect the information.  
2.15.   On 12  May 2017, the Division invited the European  Union and the third participants to 
comment on Indonesia's letter. By letter dated 16  May 2017, the European  Union stated that it has 
no objection, in principle, to BCI procedures of the kind proposed by Indonesia , even though it is 
of the view that such additional procedures may not always be necessary. The European  Union 
also agrees with Indonesia's proposal to designate provisionally certain information as BCI, 
pending the outcome of the bracketing issues that t he European  Union has raised in this appeal. 
However, the European  Union stresses that the fact that its challenge on appeal concerns only a 
limited number of instances of bracketing in the Panel Report does not mean that it agrees with all 
other instances  of BCI designation by the Panel. Thus, notwithstanding that it does not object to 
Indonesia's request, the European  Union expresses doubts as to the merits of some of Indonesia's 
arguments. For instance, the European  Union has difficulty accepting the pro position that 
information about ownership and control structures is by nature confidential because the 
companies concerned are not publicly held and therefore do not publish their financial reports. The 
European  Union also questions the confidential nature  of information contained in a document 
submitted in the investigation (Attachment PTMM -188) that allegedly shows how the 
two companies concerned cooperate. However, the European  Union acknowledges that it has not 
raised the bracketing of such information on appeal and doubts that these issues warrant further 
consideration.  
2.16.   As regards Indonesia's second request, the European  Union has no objection, given the 
specific factual circumstances of this case, to Indonesia's request to amend the executive 
summary o f its appellant's submission.  
2.17.   None of the third participants commented on Indonesia's letter of 11  May 2017.  
3  ANALYSIS  
3.1.  Turning first to consider Indonesia's request for additional procedures to protect BCI, we 
recall the Appellate Body's observation in EC and certain member States – Large Civil Aircraft  that: 
The confidentiality requirements set out in [Articles  17.10 and 18.2 of the DSU, as 
well as paragraph  VII:1 of the Rules of Conduct for the [DSU]] are stated at a high 
level of generality that may need to be particularized in situations in which the nature 
of the information provided requires more detailed arrangements to protect 
adequately the confidentiality of that information.9 
3.2.  On such occasions, it is the duty of the participants to request and just ify the need for 
additional protection of confidential information.10 While it is for the participants to request 
additional protection of confidential information, pursuant to Article  17.9 of the DSU and 
Rule 16(1) of the Working Procedures, it is for the Appellate  Body, relying upon objective criteria, 
to determine whether the information submitted by the participants deserves additional protection, 
as well as the degree of protection that is warranted.11 Such objective criteria could include, for 
example:  whether the information is proprietary; whether it is in the public domain or protected ; 
                                                                                                                                                  
(e.g. spreadsheets) and documents provided by the E uropean  Commission to PT Musim Mas and ICOF -S 
(e.g. disclosures); and (v) direct quotations, data, or figures from the  PT Musim Mas and ICOF -S Sales & 
Purchase Agreement.  
8 Panel Exhibit IDN -47. 
9 Appellate  Body Report, EC and certain member States – Large Civil Aircraft , Annex  III, Procedural 
Ruling of 10 August 2010, para.  8. See also Appellate Body Report, China – Measures Imposing Anti -Dumping 
Duties on High -Performance Stainless steel Seamless Tubes (" HP-SSST ") from the European Union, 
WT/DS460/AB/R , para. 5.315.  
10 Appellate Body Reports, United States – Measures Concerning the Importation, Marketing and Sale of 
Tuna and Tuna Products – Recourse to Article 21.5 of the DSU by Mexico , WT/DS381/AB/RW , para.  5.3; EC 
and certain member States – Large Civil Aircraft , Annex III, Procedural Ruling of 10 August 2010, para.  10; 
China – HP-SSST (EU) , para.  5.311.  
11 Appellate Body  Report, US – Tuna II (Mexico) (Article  21.5 – Mexico) , para.  5.3, referring to 
Appellate  Body Report, EC and certain member States – Large Civil Aircraft , Annex III, Procedural Ruling of 
10 August 2010, para.  15. WT/DS442/AB/R/Add.1  
 
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  whether it has a high commercial value for the originator of the information, its competitors, 
customers, or suppliers; the degree of potential harm in the event of di sclosure; the probability of 
such disclosure; the age of the information and the duration of the industry's business cycle; and 
the structure of the market.12 
3.3.  Any additional procedures adopted by the Appellate Body to protect sensitive information 
must conf orm to the requirement in Rule  16(1) of the Working Procedures that such procedures 
not be inconsistent with the DSU, the other covered agreements, or the Working Procedures 
themselves.13 Moreover, the Appellate  Body must ensure that an appropriate balance is struck 
between the need to guard against the risk of harm that could result from the disclosure of 
particularly sensitive information, on the one hand, and the integrity of the adjudicative process, 
the participation rights of third participants, and th e rights and systemic interests of the 
WTO membership at large, on the other hand.14 Furthermore, a relationship of proportionality 
must exist between the risks associated with disclosure and the measures adopted. The measures 
should go no further than requ ired to guard against a determined risk of harm that could result 
from disclosure.15 When additional procedures to protect BCI are adopted, the Appellate Body 
must also "adjudicate any disagreement or dispute that may arise under those procedures 
regarding the designation or the treatment of information as business confidential".16 
3.4.  Turning to the case before us, we consider whether, in the circumstances of this appeal, and 
taking account of the nature of the relevant information, the general confidentiality r equirements 
of the DSU and the Rules of Conduct for the DSU should be particularized through the adoption of 
special procedures to protect the confidentiality of that information. 17 
3.5.  Indonesia explains that it seeks BCI protection for the following two broa d categories of 
information: (i) information contained and treated as BCI in the Panel Report; and (ii) any 
additional information submitted as BCI by either party to the Panel, in the course of the Panel 
proceedings, where that information was marked and treated as BCI in the underlying 
anti-dumping investigation and fell into the same categories as the information marked as BCI by 
the Panel. We understand the second category identified by Indonesia to encompass only that 
information which the Panel treate d as BCI in the course of its proceedings. In this regard, we 
recall that, at the interim review stage of the Panel proceedings, the European  Union objected to 
the treatment of certain information as BCI in the Panel Report. Consequently, the Panel made 
some changes to its bracketing of information, resulting in an overall reduction of redacted 
information in the Panel Report.18 We also bear in mind that the European  Union has appealed the 
Panel's redaction of information from five paragraphs of its Report. We observe that Indonesia 
requests, and the European  Union does not object to, provisional BCI protection being granted to 
the contested information pending the outcome of the European  Union's claims on appeal.  
3.6.  Indonesia classifies the information in respe ct of which BCI protection is being sought into 
five types: (i) information concerning ownership and control structures with respect to PT  Musim 
Mas, ICOF -S, and the Musim Mas Group, as well as the relationship between shareholders; 
(ii) information on the  detailed content of investigation exhibit "Attachment PTMM -18"; (iii) the 
content of organizational charts setting out PT Musim Mas' corporate structure; (iv) PT  Musim Mas' 
and ICOF -S' financial and other business data and figures from annual reports, oth er documents 
submitted in the investigation (e.g. spreadsheets) and documents provided by the 
European  Commission to PT  Musim Mas and ICOF -S (e.g. disclosures); and (v) direct quotations, 
                                                
12 Appellate  Body Report, EC and certain me mber States – Large Civil Aircraft , Annex  III, Procedural 
Ruling of 10 August 2010, para.  15.  
13 Appellate Body Report, EC and certain member States – Large Civil Aircraft , Annex III, Procedural 
Ruling of 10 August 2010, para.  8. 
14 Appellate Body Report, US – Tuna II (Mexico) (Article  21.5 – Mexico) , para.  5.3 (referring to 
Appellate  Body Report, EC and certain member States – Large Civil Aircraft , Annex III, Procedural Ruling of 
10 August 2010, para.  15). 
15 Appellate  Body Report, EC and certain member Stat es – Large Civil Aircraft , Annex  III, Procedural 
Ruling of 10  August 2010, para.  9. 
16 Appellate Body Report, US – Tuna II (Mexico) (Article  21.5 – Mexico) , para.  5.3 (quoting 
Appellate  Body Report, China – HP-SSST (EU) , para.  5.311).  
17 Appellate Body Repor t, China – HP-SSST (EU),  para. 5.315 (quoting Appellate  Body Report, EC and 
certain member States – Large Civil Aircraft , Annex  III, Procedural Ruling of 10 August 2010, para. 8).  
18 Examples of paragraphs of the Panel Report in which the Panel reduced the extent of the redacted 
information include paragraphs  7.64 and 7.83.  WT/DS442/AB/R/Add.1  
 
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  data, or figures from the Sales and Purchase Agreement between PT  Musim Mas and ICOF -S. With 
respect to each of these types, Indonesia maintains that the information is, by its nature, 
confidential and proprietary, and that any publication of the information could potentially provide 
an unfair advantage for the companies ' competitors.  
3.7.  We note that in its request, Indonesia refers to examples of objective criteria identified by 
the Appellate Body as relevant for an adjudicator's assessment of whether to grant BCI  protection 
to information submitted to it, as discussed at par agraph  3.2.  above. In particular, Indonesia 
claims that the following criteria apply to the information for which it requests additional 
protection : whether the information is proprietary; whether it is in the public domain or protected; 
and the degree of potential harm in the event of disclosure.19 We note that the European  Union is 
doubtful as to whether some of Indonesia's arguments can be justified. In particular, the 
European  Union finds it difficult to acce pt the proposition that information about ownership and 
control structures is by nature confidential because PT  Musim Mas and ICOF -S are not publicly held 
companies and therefore do not publish their financial reports. We observe that, in some 
jurisdiction s, the ownership and control structures of certain types of companies are a matter of 
public record, as the European  Union points out. However, we recognize that different rules on 
corporate regulation apply in different jurisdictions. Accordingly, we do n ot dismiss the possibility 
that the information for which BCI protection is being sought in this case is sensitive and 
proprietary within the context of the markets within which the two companies operate.  
3.8.  Furthermore, in our view, the potential risk of har m to the two companies in question, 
highlighted by Indonesia, should not be ignored. At the same time, we are alive to our obligation 
to preserve the integrity of the adjudication process, the participants' rights to due process, the 
participation rights o f third participants, and the rights and systemic interests of the 
WTO membership at large.20 As mentioned above, the European  Union has raised a claim on 
appeal challenging the Panel's treatment of certain information, in five  paragraphs of its Report. 
We also observe that the significance of Attachment PTMM -18 is one aspect of Indonesia's appeal 
of the Panel's findings under Article  2.4 of the Anti -Dumping  Agreement. Accordingly, we consider 
that there will be an opportunity in the course of these appellat e proceedings for us to adjudicate 
on whether BCI treatment is warranted for the specific information in respect of which the 
European  Union has raised its concerns. Moreover, Indonesia's request does not propose denying 
access to the information designate d as BCI to the third  participants in these proceedings. It 
follows that we do not consider that according additional protection would undermine the rights of 
the third participants. Nor do we consider that the proposed BCI protection would prejudice the 
rights and systemic interests of the WTO Membership at large while these appellate proceedings 
are ongoing. At the same time, we are cognizant that the interests of Members in having access to 
reasoning that discloses the basis for findings and conclusions must also be protected, and that the 
public version of our Report, circulated to all Members, be understandable.21 
3.9.  As Indonesia and the European  Union acknowledge, the scope and extent of protection of 
sensitive business information in WTO dispute settlemen t proceedings must be determined by 
WTO panels and the Appellate  Body, and not by domestic investigation authorities. As the 
Appellate Body has noted, "any additional procedures to protect the confidentiality of sensitive 
business information should go no further than necessary to guard against a determined risk of 
harm (actual or potential) that could result from disclosure, and must be consistent with the DSU, 
the other covered agreements including the Anti -Dumping Agreement."22 We further note that the 
information covered by Indonesia's request for additional protection was treated as BCI in the 
Panel proceedings and that it was treated as confidential by the EU  authorities in the underlying 
anti-dumping investigation. In this regard, we observe that the P anel did not simply accept, 
without question, the BCI nature of documents submitted to it and designated as such by the 
parties. Rather, the Panel employed certain objective criteria to define BCI, and provided for a 
procedure to adjudicate any disagreemen ts between the parties on the BCI treatment of 
information submitted into the Panel record. Indeed, at the interim review stage of its 
                                                
19 Appellate  Body Report, EC and certain member States – Large Civil Aircraft , Annex  III, Procedural 
Ruling of 10 August 2010, para.  15.  
20 Appellate Body Report, US – Tuna II (Mexico) (Ar ticle 21.5 – Mexico) , para.  5.3 (referring to 
Appellate  Body Report, EC and certain member States – Large Civil Aircraft , Annex III, Procedural Ruling of 
10 August 2010, para.  15). 
21 Appellate Body Report, Japan – Countervailing Duties on Dynamic Random Ac cess Memories from 
Korea ,  WT/DS336/AB/R, para. 279.  
22 Appellate Body Report, China – HP-SSST (EU) , para. 5.311.  WT/DS442/AB/R/Add.1  
 
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  proceedings, the Panel adjudicated a dispute between the parties regarding whether some 
information was properly designat ed as BCI.  
3.10.   Moreover, the fact that both the EU  authorities and the Panel granted BCI protection to the 
information at issue is relevant but not dispositive as to whether that information warrants 
BCI protection at the appellate review stage. As the Appella te Body stated in China – HP-SSST 
(EU), while Article  6.5 of the Anti -Dumping Agreement regulates the issue of designation of 
information in domestic anti -dumping duty proceedings, Article  17.7 deals with the issue of 
confidentiality in an anti -dumping pro ceeding before a WTO panel. Thus, whether information 
treated by the domestic investigating authority as confidential, upon a showing of "good cause" 
pursuant to Article  6.5 of the Anti -Dumping Agreement, and submitted by a party to a WTO panel 
under the c onfidentiality requirements generally applicable in WTO dispute settlement, should 
receive additional confidential treatment as BCI is to be determined in each case by the 
WTO adjudicator.23 We also consider it useful to recall that whether information warr ants 
BCI protection may evolve over the course of dispute settlement proceedings.  
3.11.   In this dispute, we note that the Panel Report contains 55 references to information that 
was designated as BCI, and these 55 references have been redacted from the circulate d version of 
that Report. All of the submissions by the participants in this appeal contain multiple instances in 
which information that was treated as BCI in the Panel proceedings has been cited and enclosed 
within double brackets. Moreover, the European  Union has raised a claim of error on appeal 
challenging the Panel's designation of some information as BCI. We further note that the 
BCI procedures proposed by Indonesia in this appeal are modelled on the BCI procedures adopted 
by the Appellate  Body in US – Washing Machines. Yet, we see important differences between the 
circumstances of that dispute and those in this dispute. The panel report in US – Washing 
Machines did not include any BCI, no redactions were made in the circulated version of the report 
and the submissions filed by the participants on appeal likewise contained no BCI. By contrast, in 
this dispute, it cannot be ruled out at this stage that it may be necessary to refer to information 
that the Panel treated as BCI in our eventual Report. This suggests that there may be need for us 
to adopt further modalities to supplement the BCI procedures proposed by Indonesia in this 
appeal.  
3.12.   On balance, and without prejudice to our adjudication of the participants' claims on appeal, 
we consider that addition al protection is warranted for the information marked by the participants 
as BCI and enclosed within square brackets in their submissions to the Appellate Body. We also 
consider that additional protection is warranted for the information designated by the Panel as BCI 
in its Report and in the Panel record. This excludes any information in respect of which the Panel 
removed the BCI designation following the parties' comments at the interim review stage.  
4  RULING  
4.1.  First, for the above reasons, and in light of th e previous rulings by the Appellate Body on the 
issue of additional protection of BCI, we have decided to accord additional protection to the 
following information in these proceedings: (i) the information marked by the participants as BCI 
and enclosed wit hin square brackets in their submissions to the Appellate Body; and (ii) the 
information designated by the Panel as BCI in its Report and in the Panel record. With specific 
respect to the information that the European  Union has claimed on appeal did not wa rrant 
BCI protection by the Panel, the additional protection that we are granting is provided on a 
provisional basis, pending resolution of the claims raised by the European Union. The additional 
BCI protection in these appellate proceedings is provided ac cording to the following terms, bearing 
in mind that the participants and third  participants have already filed their written submissions:  
a. No person may have access to information that qualifies as BCI, except a member of the 
Appellate Body or the staff of  the Appellate Body Secretariat, an employee of a 
participant or third participant, or an outside advisor for the purposes of this dispute to a 
participant or third participant. However, an outside advisor is not permitted access to 
BCI if that advisor is an officer or employee of an enterprise engaged in the production, 
export, or import of the products that were the subject of the underlying anti -dumping 
investigations in this dispute.  
                                                
23 Appellate Body Report, China – HP-SSST (EU) , paras.  5.315 -5.316.  WT/DS442/AB/R/Add.1  
 
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  b. A participant or third participant having access to BCI shall treat i t as confidential, and 
shall not disclose that information other than to those persons authorized to receive it 
pursuant to these procedures. Each participant and third participant shall have 
responsibility in this regard for its employees as well as for a ny outside advisors 
employed for the purposes of this dispute. BCI obtained under these procedures may be 
used only for the purpose of providing information and argumentation in this dispute and 
for no other purpose.  
c. A participant or third participant tha t submits a document (including written submissions 
and oral statements) containing BCI to the Appellate Body after the adoption of these 
BCI procedures shall clearly identify such information in the document filed. Submissions 
filed prior to the adoption of these BCI procedures need not be marked retroactively. The 
participant or third participant shall mark the cover and/or first page of the document 
containing BCI, and each subsequent page of the document, to indicate the presence of 
such information. Th e specific information in question shall be placed within double 
brackets, as follows: [[…]].  
d. A participant or third participant that intends to make an oral statement at the hearing 
containing BCI shall inform the Division in advance, such that the Divisi on can ensure 
that only persons authorized to have access to BCI pursuant to these procedures are in 
the room to hear that statement.  
e. The Appellate Body will not disclose BCI, in its Report or in any other way, to persons 
not authorized under these proced ures to have access to BCI. The Appellate Body may, 
however, make statements of conclusion drawn from that information.  
f. Before circulating its Report to the Members, the Appellate Body will decide whether to 
adopt further modalities, for example to verify  the designation of certain information as 
BCI, and to ensure both the non -disclosure of BCI in the Report to be circulated and that 
the analysis and findings set out in that Report can be readily understood in the event of 
any redaction of such BCI.  
4.2.  Secon d, pursuant to Rules  16(1) and 18(5) of the Working Procedures, the Division accepts 
Indonesia's request for leave to amend the executive summary of its appellant's submission as set 
out in its letter dated 11 May 2017. More specifically, the Division auth orizes the removal of all 
references to BCI markings on the cover page of Indonesia's Executive Summary as well as in the 
headers on each page and, with respect to paragraph 7.9 of that Executive Summary, accepts 
Indonesia's request to: (i) replace the tex t enclosed within the first set of double brackets with the 
words "particularly close relationship"; (ii) replace the text within the second set of double 
brackets with the word "close"; and (iii) remove all double brackets. The amended version of this 
executive summary will be annexed to our Report in this dispute, in accordance with the 
Guidelines in respect of Executive Summaries of Written Submissions in Appellate Proceedings 
(WT/AB/23).  
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