WT/DS442/6  
 
21 February 2017  
(17-1023) Page: 1/3 
  Original: English  
 
 EUROPEAN UNION – ANTI -DUMPING MEASURES ON IMPORTS OF  
CERTAIN FATTY ALCOHO LS FROM INDONESIA  
NOTIFICATION OF AN OTHER APPEAL BY THE EUROPEAN UNION  
UNDER ARTICLE 16.4 A ND ARTICLE 17 OF THE  UNDERSTANDING ON RUL ES 
AND PROCEDURES GOVER NING THE SETTLEMENT OF DISP UTES (DSU),  
AND UNDER RULE 20(1)  OF THE WORKING PROCE DURES FOR APPELLATE REVIEW  
The following communication, dated 15 February  2017, from the delegation of the 
European  Union , is being circulated to Members.  
 
_______________  
 
 
Pursuant to Article 16.4 and  Article 17.1 of the DSU the European Union hereby notifies to the 
Dispute 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 disput e 
European Union – Anti-Dumping Measures on Imports of Certain Fatty Alcohols 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 App ellate Body 
Secretariat.  
 
For the reasons to be further elaborated in its 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 conclu sions of the Panel and complete the analysis with 
respect to the following 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 Article s 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 ha s 
expired, and indeed ceased to exist before the termination of the panel 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 requested 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 re commendations with regard to a measure, which had ceased to 
exist before the termination of the Panel 's proceedings – a fact that was uncontroversial and 
                                                
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 Euro pean Union to refer to other paragraphs of the Panel Report in the context of 
its appeal.  WT/DS442/6  
 
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  not contested by Indonesia – the Panel violated Articles 11 and 19.1 of the DSU2, and for 
that reason the European Union request s 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 erroneo usly referred 
to the standard (or guidance) provided by the Appellate Body 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, tha t 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 su bmitted to the panel to demonstrate 
that the panel work was indeed suspended 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 erroneous 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 
the addressee of Indones ia'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 
recommen dations, or declare them moot and of no legal effect.  
 Third, th e 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 events, 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 conclusion 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 bracketed 
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 Panel 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 re quire 
the necessary justifications and make the appropriate adjudications, and by failing to comply 
                                                
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 ac tion or omission as a violation of Article 11 
of the DSU, 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 th e Working 
Procedures for Appellate Review, is a necessary 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 object ive assessment of the facts of the case; and make such other findings as will assist the DSB 
in making the appropriate recommendations or rulings . 
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).  WT/DS442/6  
 
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  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 
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5 Panel Report, paras . 7.64, 7.74 and 7.80, 7.82, 7.83.