WT/DS484/R  
 
17 October  2017 
(17-5524) Page: 1/160 
  Original: English  
 
   
 
INDONESIA – MEASURES CONCERNING THE IMPORTATION  
OF CHICKEN MEAT AND CHICKEN PRODUCTS  
REPORT  OF THE PAN EL 
 
 WT/DS484/R  
 
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  TABLE OF CONTENTS  
 
1 INTRODUCTION  ................................ ................................ ............................  17 
1.1 Complaint by Brazil  ................................ ................................ ........................... 17 
1.2 Panel establishment and composition  ................................ ................................ ..17 
1.3 Panel proceedings ................................ ................................ ............................. 18 
1.3.1  General  ................................ ................................ ................................ ........... 18 
1.3.2  Preliminary ruling  ................................ ................................ ............................. 18 
2 FACTUAL ASPECTS  ................................ ................................ ........................  18 
2.1 The measures at issue  ................................ ................................ ...................... 18 
2.1.1  Alleged general prohibition  ................................ ................................ ................ 19 
2.1.2  Specific restrictions and prohibitions  ................................ ................................ ...20 
2.2 Other factual aspects  ................................ ................................ ........................ 20 
3 PARTIES' REQUESTS FO R FINDINGS AND RECOM MENDATIONS  ...................  21 
4 ARGUMENTS OF THE PAR TIES  ................................ ................................ ...... 22 
5 ARGUMENTS OF THE THI RD PARTIES  ................................ ...........................  22 
6 INTERI M REVIEW  ................................ ................................ .........................  22 
6.1 Introduction  ................................ ................................ ................................ .....22 
6.2 Preliminary Ruling: Whether the alleged general prohibition is within the 
Panel's terms of r eference  ................................ ................................ ................. 22 
6.3 Order of analysis: Whether Article XI of the GATT 1994 and Article 4.2 of the 
Agreement on Agriculture are mutually exclusive  ................................ ................. 23 
6.4 Individual measure 1: Positive list requirement  ................................ .................... 23 
6.5 Individual measure 2: Intended use requirement  ................................ .................. 23 
6.6 Individual measure 5: Halal labelling requirements  ................................ ............... 27 
6.7 Individual measure 6: Transportation requirement  ................................ ............... 27 
6.8 Claims relat ing to the alleged general prohibition  ................................ ................. 27 
6.9 Conclusions and recommendations  ................................ ................................ .....28 
7 FINDINGS  ................................ ................................ ................................ ..... 29 
7.1 Preliminary matters  ................................ ................................ .......................... 29 
7.1.1  Requests to join the Panel proceedings as third parties after the ten -day 
period  ................................ ................................ ................................ ............. 29 
7.1.2  Preliminary ruling request by Indonesia  ................................ ............................... 30 
7.1.2.1  Indonesia's request  ................................ ................................ .......................... 30 
7.1.2.2  The Panel's conclusi ons and reasoning  ................................ ................................ 31 
7.1.2.2.1  Legal standard applicable to a panel's terms of reference  ................................ ......31 
7.1.2.2.2  Whether the alleged genera l prohibition is within the Panel's terms of 
reference  ................................ ................................ ................................ ......... 33 
7.1.2.2.2.1  Whether the panel request contains a brief summary of the legal basis of the 
complaint sufficient to present the problem c learly  ................................ ............... 33 
7.1.2.2.2.2  Whether the measure has been properly identified  ................................ ............... 35 WT/DS484/R  
 
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  7.1.2.2.3  Whether Brazil's panel request properly iden tified Indonesia's import 
licensing regime "as a whole"  ................................ ................................ ............. 36 
7.1.2.2.4  Whether Brazil's claim s with regard to the import prohibition on other 
prepared or preserved chicken meat are  within the Pa nel's terms of 
reference  ................................ ................................ ................................ ......... 37 
7.1.2.2.5  Whether claims raised by Brazil under Article 1 of the Import Licensing 
Agreement are within the Panel's terms of reference  ................................ ............. 39 
7.2 Panel's order of analysis  ................................ ................................ .................... 40 
7.2.1  General  ................................ ................................ ................................ ........... 40 
7.2.2  Order of analysis in respect of cla ims against the general prohibition and 
against individual measures  ................................ ................................ ............... 40 
7.2.3  Order of analysis of claims  ................................ ................................ ................. 40 
7.2.3.1  Introduction  ................................ ................................ ................................ .....40 
7.2.3.2  Whether Article XI of the GATT 1994 and Article 4.2 of the Agreement on 
Agriculture are mutually exclusive  ................................ ................................ ......41 
7.2.4  Order of analysis of amended measures  ................................ .............................. 44 
7.2.4.1  Introduction  ................................ ................................ ................................ .....44 
7.2.4.2  Jurisdiction with respect to the measures as enacted th rough the legal 
instruments adopted after the panel establishment  ................................ ............... 44 
7.2.4.3  Scope and sequence of the Panel's analysis  ................................ ......................... 45 
7.3 Background on the measures at issue  ................................ ................................ .47 
7.4 Individual measure 1: Positive list requirement  ................................ .................... 48 
7.4.1  Introduction  ................................ ................................ ................................ .....48 
7.4.2  Panel's analysis of the positive list requirement as enacted through MoA 
58/2015 and MoT 05/2016  ................................ ................................ ................ 50 
7.4.2.1  Preliminary issue of fact – whether prepared or preserved chicken meat can 
be imported into Indonesia  ................................ ................................ ................ 50 
7.4.2.2  Whether the positive list requirement is inconsistent with Article XI of the 
GATT 1994  ................................ ................................ ................................ ......51 
7.4.2.3  Whether the positive list requirement is justified under Article XX(d) of the 
GATT 1994  ................................ ................................ ................................ ......52 
7.4.2.3.1  Whether the positive list requireme nt is designed to secure compliance with 
laws or regulations that are not themselves inconsistent with the GATT 1994  .......... 53 
7.4.2.3.2  Whether the positive list requirement is necessary to secure c ompliance with 
the relevant laws and regulations in Indonesia  ................................ ..................... 55 
7.4.2.4  Whether the positive list requirement is inconsistent with Article 4.2 of the 
Agreement on Agriculture  ................................ ................................ .................. 59 
7.4.3  Panel's analysis of the relevant provisions of MoA 34/2016 and MoT  59/2016  .......... 60 
7.4.3.1  Whether the positive list requirement has expired  by virtue of MoA 34/2016 
and MoT 59/2016  ................................ ................................ ............................. 60 
7.4.3.2  Whether the positive list requirement as enacted through the relevant 
provisions of MoA 34/2016 and MoT 59/2016 is inconsistent with Articl e XI of 
the GATT 1994 and Article 4.2. of the Agreement on Agriculture  ............................ 61 
7.4.4  Conclusion  ................................ ................................ ................................ .......61 
7.5 Individual measure 2: Intended  use requirement  ................................ .................. 62 
7.5.1  Introduction  ................................ ................................ ................................ .....62 WT/DS484/R  
 
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  7.5.2  Analysis of the intended use requirement as enacted through MoA 58/2015  ............ 64 
7.5.2.1  Measure at issue and jurisdiction  ................................ ................................ ........ 64 
7.5.2.2  Whether Article III:4 of the GATT 1994 is applicable  ................................ ............. 65 
7.5.2.3  Whether the intended use requirement is inconsistent with Article XI of the 
GATT 1994  ................................ ................................ ................................ ......67 
7.5.2.4  Whether the intended use requirement is justifi ed under Article XX(b) or (d) 
of the GATT 1994  ................................ ................................ ............................. 68 
7.5.2.4.1  Article XX(b)  ................................ ................................ ................................ ....68 
7.5.2.4.1.1  Whether the intended use requirement pu rsues a human health objective  ............... 69 
Whether Indonesia has demonstrated that there is a health risk  ................................ .............. 69 
Whether the objective of the  intended use requirement is to reduce that risk  ............................ 71 
7.5.2.4.1.2  Whether the intended use requirement is necessary to protect human health  .......... 72 
7.5.2.4.2  Article XX(d)  ................................ ................................ ................................ ....75 
7.5.2.4.2.1  Whether the intended use requirement is designed to secure compliance with 
laws and regulations that are not themselves inconsistent with th e GATT 
1994 ................................ ................................ ................................ ............... 76 
Whether the intended use requirement is necessary to secure compliance with such laws 
and regulations  ................................ ................................ ................................ .................. 77 
7.5.2.5  Whether the intended use requirement is inconsistent with Article 4.2 of the 
Agreement on Agriculture  ................................ ................................ .................. 78 
7.5.3  Analysis of the relevant provisions of MoA 34/2016  ................................ .............. 79 
7.5.3.1  Provisions at issue  ................................ ................................ ............................ 79 
7.5.3.1.1  Limitation on the intended use to markets with cold chain facilities  ......................... 79 
7.5.3.1.2  Enforcement of the intended use through distribution plan and weekly 
distribution report ................................ ................................ ............................. 79 
7.5.3.2  Whether the intended use requirement has expired  ................................ .............. 80 
7.5.3.3  Whether the intended use requirement, as enacted through the relevant 
provisions of MoA 34/2016, is WTO -inconsistent as claimed by Brazil  ...................... 81 
7.5.3.3.1  Jurisdiction  ................................ ................................ ................................ ......81 
7.5.3.3.2  Admissibility of claims in terms of due process  ................................ ..................... 82 
7.5.3.3.3  Claims under Artic le III:4 of the GATT 1994  ................................ ......................... 82 
7.5.3.3.3.1  Whether Article III:4 is applicable  ................................ ................................ .......83 
Cold storage requirement  ................................ ................................ ................................ ....83 
Enforcement provisions ................................ ................................ ................................ .......83 
7.5.3.3.3.2  Whether there is inconsistency with Article III:4  ................................ ................... 84 
Whether the intended use requirement is inconsistent with Article III:4 with respect to its 
cold storage requirement  ................................ ................................ ................................ ....84 
Likeness   ................................ ................................ ................................ ...................... 85 
Whether the intended use requirement is inconsistent with Article III:4 with respect to its 
enforcement provisions  ................................ ................................ ................................ .......88 
Likeness   ................................ ................................ ................................ ...................... 88 
Less favourable treatment  ................................ ................................ ................................ ...88 
7.5.3.3.3.3  Whether the enforcement provisions are justified under Article XX of the 
GATT 1994  ................................ ................................ ................................ ......90 WT/DS484/R  
 
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  7.5.3.3.3.4  Claims under Article XI of the GATT 1994 and Article 4.2 of the Agreement 
on Agriculture  ................................ ................................ ................................ ..91 
7.5.4  Conclusion  ................................ ................................ ................................ .......91 
7.6 Individual measure 3: Certain aspects of Indonesia's import licensing regime  .......... 92 
7.6.1  Introduction  ................................ ................................ ................................ .....92 
7.6.2  Overvi ew of Indonesia's import licensing regime ................................ ................... 92 
7.6.3  Order of analysis  ................................ ................................ .............................. 93 
7.6.4  Analysis of the positive list requirement and the intended use requirement as 
specific aspects of Indonesia's licensing regime  ................................ .................... 95 
7.6.5  Analysis of the application windows, validity periods and fixed licence terms  ............ 97 
7.6.5.1  Introduction  ................................ ................................ ................................ .....97 
7.6.5.2  Panel's analysis of the application windows, validity periods and the fixed 
licence terms as enacted through MoA 58/2015 and MoT 05/2016  .......................... 99 
7.6.5.2.1  Application windows and validity periods  ................................ ...........................  100 
7.6.5.2.1.1  Measure at issue and Panel's jurisdiction  ................................ ...........................  100 
7.6.5.2.1.2  Whether the application windows and the validity periods are inconsistent 
with Article  XI:1 of the GATT 1994  ................................ ................................ ... 101 
7.6.5.2.2  Fixed licence terms  ................................ ................................ .........................  104 
7.6.5.2.2.1  Measure at issue and Panel's jurisdiction  ................................ ...........................  104 
7.6.5.2.2.2  Whether the fixed licen ce terms are inconsistent with Article XI:1 of the 
GATT 1994  ................................ ................................ ................................ .... 104 
7.6.5.2.3  Whether the application windows, the validity periods, and the fixed licence 
terms are justified under Article XX(d) of the GATT 1994  ................................ ..... 107 
7.6.5.2.3.1  Introduction  ................................ ................................ ................................ ... 107 
7.6.5.2.3.2  Admissibility of certain aspects of Indonesia's defence under Arti cle XX(d)  ............  107 
7.6.5.2.3.3  Whether the application windows, the validity periods and the fixed licence 
terms are justified under Article XX(d)  ................................ ..............................  108 
Article XX(d)  ................................ ................................ ................................ ...................  108 
Designed to secure compliance with laws or regulations  ................................ ........................  108 
Necessary to secure compliance wi th laws and regulations  ................................ ....................  110 
7.6.5.2.4  Whether the application windows, the validity periods, and the fixed licence 
terms are inconsistent with Article 4.2 of the Agreement on Agriculture and 
Article 3.2 of the Import Licensing Agreement  ................................ ....................  112 
7.6.5.3  Analysis of the relevant provisions of MoA 34/2016 and MoT 59/2016  ...................  112 
7.6.5.3.1  Introduction  ................................ ................................ ................................ ... 112 
7.6.5.3.2  Whether the application windows and the validity periods, as a single 
measure, has expired  ................................ ................................ ......................  112 
7.6.5.3.3  Whether the limited validity period, as enacted through MoA 34/2016, is 
inconsistent with Article XI:1 of the GATT 1994, Article 4.2 of the Agreement 
on Agriculture and Article 3.2 of the Import Licensing Agreement  .........................  113 
7.6.5.3.4  Whether the fixed licence terms, as enacted through MoA 34/2016 and 
MoT 59/2016, are inconsistent with Article XI:1 of the GATT 1994, Article 4.2 
of the Agreement on Agriculture and Article 3.2 of the Impo rt Licensing 
Agreement  ................................ ................................ ................................ .... 114 
7.6.5.4  Conclusion  ................................ ................................ ................................ ..... 115 
7.6.6  Discretionary import licensing  ................................ ................................ ..........  115 WT/DS484/R  
 
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  7.6.6.1  Introduction  ................................ ................................ ................................ ... 115 
7.6.6.2  Panel's jurisdiction  ................................ ................................ ..........................  115 
7.6.6.3  WTO consistency of MoT's power to d etermine the amount of imported goods ........  117 
7.6.6.3.1  Whether MoT's power to determine the amount of imported goods is 
inconsistent with Article 4.2 of the Agreement on Agriculture  ...............................  117 
7.6.6.3.2  Whether MoT's discretion to determine the amount of imported goods is 
inconsistent with Article 3.2 of the Import Licensing Agreement  ...........................  119 
7.6.6.4  Conclusion  ................................ ................................ ................................ ..... 120 
7.6.7  Other aspects of Indonesia's import licensing regime  ................................ ..........  120 
7.6.7.1  Denial of import licenc es to secure price stabilization  ................................ ..........  120 
7.6.7.2  Additional restrictions on "certain products" and "processed products"  ..................  121 
7.6.8  Overall conclusion  ................................ ................................ ..........................  121 
7.7 Individual measure 4: Undue delay in the approval of the veterinary health 
certificate  ................................ ................................ ................................ ...... 122 
7.7.1  Introd uction  ................................ ................................ ................................ ... 122 
7.7.2  Relevant facts  ................................ ................................ ................................  122 
7.7.2.1  Background to the relevant SPS approval procedure  ................................ ...........  122 
7.7.2.2  Brazil's request for the approval of a veterinary health certificate  .........................  123 
7.7.3  Whether Indonesia has acted in a manner inconsistent with Article 8 and  
Annex C(1)(a) of the SPS Agreement  ................................ ................................  125 
7.7.3.1  Whether the approval of Brazil's proposed veterinary health certificate for 
chicken is subject to Annex C of the SPS Agreement  ................................ ...........  126 
7.7.3.2  Whether there has been a delay in Indonesia's consideration of Brazil's 
proposed veterinary health certificate for chicken  ................................ ...............  126 
7.7.3. 3 Whether the delay in Indonesia's consideration of Brazil's proposed 
veterinary health certificate for chicken is undue  ................................ ................  127 
7.7.4  Conclusion  ................................ ................................ ................................ ..... 129 
7.8 Individual measure 5: Halal labelling requirements  ................................ .............  129 
7.8.1  Introduction  ................................ ................................ ................................ ... 129 
7.8.2  Factual background ................................ ................................ .........................  129 
7.8.3  Whether Indonesia's enforcement of halal labelling requirements is 
inconsistent with Article III:4 of the GATT 1994  ................................ .................  130 
7.8.3.1  Whether the enforcement of the grace period for the application of certain 
aspects of Law 33/2014 is inconsistent with Article III:4  ................................ ..... 130 
7.8.3.1.1  Introduction  ................................ ................................ ................................ ... 130 
7.8.3.1.2  Whether Brazil's claim regarding the grace period provided in Article 67 of 
Law 33/2014 falls within the Panel's terms of reference  ................................ ...... 131 
7.8.3.1.3  Whether Article 67 of Law 33/2014 exempts domestic chicken from halal 
certification in a manner inconsistent with Article III:4  ................................ ........  131 
7.8.3.2  Whether the exemption from the halal labellin g requirement for food directly 
sold and packed before the buyer in small number is inconsistent with Article 
III:4 ................................ ................................ ................................ .............  133 
7.8.3.2.1  Factual description of the exemption of certain food products from bearing 
the halal label  ................................ ................................ ................................  133 
7.8.3.2.2  Panel's analysis under Article III:4  ................................ ................................ .... 134 WT/DS484/R  
 
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  7.8.4  Conclusion  ................................ ................................ ................................ ..... 135 
7.9 Individual measure 6: Transportation requirement  ................................ .............  135 
7.9.1  Introduction  ................................ ................................ ................................ ... 135 
7.9.2  Whether the direct transportation requirement is inconsistent with Article  XI 
of the GATT 1994 and Article 4.2 of the Agreement on Agriculture  ........................  136 
7.9.2.1  Whether the direct transportation requ irement mandates non -stop shipment 
without transit or transhipment  ................................ ................................ ........  137 
7.9.2.2  Whether the meaning of the direct transportation requirement is so unclear 
as to constitute an import restriction  inconsistent with Article XI of the GATT 
1994 and Article 4.2 of the Agreement on Agriculture  ................................ .........  138 
7.9.2.2.1  Whether Brazil's claim that the legal uncertainties arising from the "murky" 
langua ge in Article 19(a) of MoA 34/2016 amount to a quantitative import 
restriction falls within the Panel's terms of reference  ................................ ...........  139 
7.9.2.2.2  Whether the language in Article 19(a) of MoA 34/2016 am ounts to an 
inconsistency with Article  XI:1 of the GATT 1994 and Article  4.2 of the 
Agreement on Agriculture  ................................ ................................ ................  139 
7.9.3  Conclusion  ................................ ................................ ................................ ..... 140 
7.10 Claims relating to the alleged general prohibition  ................................ ...............  140 
7.10.1  Introduction  ................................ ................................ ................................ ... 140 
7.10.2  Brazil's description of the mea sure ................................ ................................ ... 141 
7.10.2.1  Individual measures as constitutive elements  ................................ .....................  142 
7.10.2.2  Self-sufficiency requirement ................................ ................................ .............  143 
7.10.2.3  Restrictions on imports of essential goods  ................................ .........................  144 
7.10.2.4  Combined operation  ................................ ................................ ........................  145 
7.10.2.5  Overriding objective  ................................ ................................ ........................  145 
7.10.3  Evidence and argument submitted by Brazil  ................................ .......................  146 
7.10.3.1  Trade data  ................................ ................................ ................................ ..... 146 
7.10.3.2  Written nature of the constitutive elements  ................................ .......................  146 
7.10.3.3  Elements  of distinction between individual measures and single measure  ..............  146 
7.10.3.4  Evidence  that all individual elements pursue the same single objective  .................  147 
7.10.4  Panel's assessment  ................................ ................................ .........................  147 
7.10.4.1  Attribution  ................................ ................................ ................................ ..... 148 
7.10.4.2  Precise content ................................ ................................ ...............................  148 
7.10.4.2.1  Whether the trade data proves the existence of the measure  ...............................  148 
7.10.4.2.2  Whether the written nature of the constitutive elements proves the existence 
of the measure  ................................ ................................ ...............................  148 
7.10.4.2.3  Whether the single measure can be discerned from the design, structure and 
architecture of the constitutive elements  ................................ ...........................  149 
7.10.4.2.4  Whether there is an  overriding objective that binds together the constitutive 
elements  ................................ ................................ ................................ ....... 150 
7.10.4.3  Whether Brazil has proven the specific nature of the measure in terms of 
future application  ................................ ................................ ...........................  152 
7.10.5  Conclusion  ................................ ................................ ................................ ..... 153 
7.11 Separate opinion of one panelist  ................................ ................................ ....... 153 
7.11.1  Introduc tion ................................ ................................ ................................ ... 153 WT/DS484/R  
 
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  7.11.2  What are the amended measures?  ................................ ................................ .... 154 
7.11.3  Jurisdiction of the Panel over the amended measures ................................ ..........  154 
7.11.4  Relation between a panel's jurisdiction and an allegation of expiry  ........................  155 
7.11.5  Conclusions  ................................ ................................ ................................ ... 156 
8 CONCLUSIONS AND RECO MMENDATIONS  ................................ ...................  158  
 
 WT/DS484/R  
 
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  LIST OF ANNEXES  
ANNEX A  
WORKING PROCEDURES F OR THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures for the Panel  A-2 
ANNEX B  
ARGUMENTS OF THE PAR TIES 
Conten ts Page  
Annex  B-1 Integrated executive summary of the arguments of Brazil  B-2 
Annex  B-2 Integrated executive summary of the arguments of Indonesia  B-27 
ANNEX C  
ARGUMENTS OF THE THI RD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the a rguments of Argentina  C-2 
Annex  C-2 Integrated executive summary of the arguments of Australia  C-8 
Annex  C-3 Integrated executive summary of the arguments of Canada  C-11 
Annex  C-4 Integrated executive summary of the arguments of the European Union  C-15 
Annex  C-5 Integrated executive summary of the arguments of Japan  C-17 
Annex  C-6 Integrated executive summary of the arguments of New Zealand  C-20 
Annex  C-7 Integrated executive summary of the arguments of Norway  C-25 
Annex C -8 Integrated executive summ ary of the arguments of Paraguay  C-27 
Annex C -9 Integrated executive summary of the arguments of Qatar  C-28 
Annex  C-10 Integrated executive summary of the arguments of the United States  C-30 WT/DS484/R  
 
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  CASES CITED IN THIS REPORT  
Short title  Full case title  
Argen tina – Financial Services  Appellate Body Report, Argentina – Measures Relating to Trade in Goods and 
Services , WT/DS453/AB/R  and Add.1,  adopted 9 May 2016  
Argentina – Hides and Leather  Panel Report, Argentina – Measures Affecting the Export of Bovine Hides and 
Import of Finished Leather , WT/DS155/R  and Corr.1 , adopted 16 February 
2001, DSR 2001:V, p. 1779  
Argentina – Import Measures  Appellate Body Reports, Argentina – Measures Affecting the Importation of 
Goods , WT/DS 438/AB/R  / WT/DS444/AB/R  / WT/DS445/AB/R , adopted 26 
January 2015  
Argentina – Import Measures  Panel Reports, Argentina – Measures Affecting t he Importation of Goods , 
WT/DS438/R  and Add.1 / WT/DS444/R  and Add.1 / WT/DS445/R  and Add.1, 
adopted 26 January 2015, as modified (WT/DS438/R) and upheld 
(WT/DS444/R / WT/DS445/R) by Appellate Body Reports WT/DS438/AB/R / 
WT/DS444/AB/R / WT/DS445/AB/R  
Australia – Apples  Appellate Body Report, Australia – Measures Affecting the Importation of 
Apples from New Zealand , WT/DS367/AB/R , adopted 17 December 2010, 
DSR 2010:V, p. 2175  
Australia – Automotive Leather 
II Panel Report, Australia – Subsidies Provided to Producers and Exporters of 
Automotive L eather , WT/DS126/R , adopted 16 June 1999, DSR 1999:III, p. 
951 
Australia – Salmon  Appellate Body Report, Australia – Measures Affecting Importation of 
Salmon , WT/DS18/AB/R , adopted 6 November 1998, DSR 1998:VIII, p. 
3327 
Australia – Salmon (Article 
21.5 – Canada)  Panel Report, Australia – Measures Affecting Importation of Salmon – 
Recourse to Article 21.5 of the DSU by Canada , WT/DS18/RW , adopted 20 
March 2000, DSR 2000:IV, p. 2031  
Brazil – Desiccated Coconut  Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut , 
WT/DS22/AB/R , adop ted 20 March 1997, DSR 1997:I, p. 167  
Brazil – Retreaded Tyres  Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded 
Tyres , WT/DS332/AB/R , adopted 17 December 2007, DSR 2007:IV, p. 1527  
Brazil – Retreaded Tyres  Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres , 
WT/DS332/R , adopted 17 December 2007, as modified by Appellate Body 
Report WT/DS332/AB/R, DSR 2007:V, p.  1649 
Canada – Renewable Energy / 
Canada – Feed-in Tariff 
Program  Panel Reports, Canada – Certain Measures Affecting the Renewable Energy 
Generation Sector / Canada – Measures Relating to the Feed -in Tariff 
Program , WT/DS412/R  and Add.1 / WT/DS426/R  and Add.1, adopted 24 May 
2013, as modified by Appellate Body Reports WT/DS412/AB/R / 
WT/DS426/AB/R, DSR 2013:I, p. 237  
Canada – Wheat Exports and 
Grain I mports  Appellate Body Report, Canada – Measures Relating to Exports of Wheat and 
Treatment of Imported Grain , WT/DS276/AB/R , adopted 27 September 
2004, DSR 2004:VI, p. 2739  
Chile – Price Band System  Panel Report, Chile – Price Band System and Safeguard Measures Relating to 
Certain Agricultural Products , WT/DS207/R , adopted 23 October 2002, as 
modified by Appellate Body Report WT/DS207AB/R, DSR 2002:VI II, p. 3127  
China – Electronic Payment 
Services  Panel Report, China – Certain Measures Affecting Electronic Payment 
Services , WT/DS413/R  and Add.1, adopted 31 August 2012, DSR 2012:X, p. 
5305 
China – HP-SSST (Japan) / 
China – HP-SSST (EU)  Appellate Body Reports, China – Measures Imposing Anti -Dumping Duties on 
High-Performance Stainless Steel Seamless Tubes ("HP -SSST") from Japan / 
China – Measures Imposing Anti -Dumping Duties on High -Performance 
Stainless Steel Seamless Tubes ("HP -SSST") from the European Union , 
WT/DS454/AB/R  and Add.1 / WT/DS460/AB/R  and Add.1, adopted 28 
October 2015  
China – Intellectual Property 
Rights  Panel Report, China – Measures Affecting the Protection and Enforcement of 
Intellectual Property Rights , WT/DS362/R , adopted 20 March 2009, DSR 
2009:V, p. 2097  WT/DS484/R  
 
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  China – Publications and 
Audiovisual Products  Appellate Body Report, China – Measures Affecting Trading Rights and 
Distribution Services for Certain Publications and Audiovisual Entertainment 
Products , WT/DS363/AB/R , adopted 19 January 2010, DSR 2010:I, p. 3  
China – Rare Earths  Panel Reports, China – Measures Related to the Exportation of  Rare Earths, 
Tungsten, and Molybdenum , WT/DS431/R  and Add.1 / WT/DS432/R  and 
Add.1 / WT/DS433/R  and Add.1, adopted 29 August 2014, upheld by 
Appellate Body Reports WT/DS431/AB/R / WT/DS432/AB/R / 
WT/DS433/AB/R, DSR 2014:IV, p. 1127  
China – Raw Materials  Appellate Body Reports, China – Measures Related to the Exportation of 
Various Raw Materials , WT/DS394/AB/R  / WT/DS395/AB/R  / 
WT/DS398/AB/R , adopted 22 February 2012, DSR 2012:VII, p . 3295  
China – Raw Materials  Panel Reports, China – Measures Related to the Exportation of Various Raw 
Materials , WT/DS394/R , Add.1 and Corr.1 / WT/D S395/R , Add.1 and Corr.1 / 
WT/DS398/R , Add.1 and Corr.1, adopted 22 Februa ry 2012, as modified by 
Appellate Body Reports WT/DS394/AB/R / WT/DS395/AB/R / 
WT/DS398/AB/R, DSR 2012:VII, p. 3501  
Colombia – Ports of Entry  Panel Report, Colombia – Indicative Prices and Restrictions on Ports of Entry , 
WT/DS366/R  and Corr.1, adopted 20 May 2009, DSR 2009:VI, p. 2535  
Colombia – Textiles  Appellate Body Report, Colombia – Measures Relating to the Importation of 
Textiles, Apparel and Footwear , WT/DS461/AB/R  and Add. 1, adopted 22 
June 2016  
Dominican Republic – Import 
and Sale of Cigarettes  Appellate Body Report, Dominican Republic – Measures Affecting the 
Importation and Internal Sale of Cigarettes , WT/DS302/AB/R , adopted 19 
May 2005, DSR 2005:XV, p. 7367  
Dominican Republic – Import 
and Sale of Cigarettes  Panel Report, Dominican Republic – Measures Affecting the Importation and 
Internal Sale of Cigarettes , WT/DS302/R , adopted 19 May 2005, as modified 
by Appellate Body Report WT/DS302/AB/R, DSR 2005:XV, p. 7425  
EC – Approval and Marketing of 
Biotech Products  Panel Reports, European Communities – Measures Affecting the Approval 
and Marketing of Biotech Products , WT/DS291/R , Add.1 to Add.9 and Corr.1 
/ WT/DS292/R , Add.1 to Add.9 and Corr.1 / WT/DS293/R , Add.1 to Add.9 
and Corr.1, adopted 21 November 2006, DSR 2006:III, p. 847  
EC – Asbestos  Appellate Bo dy Report, European Communities – Measures Affecting 
Asbestos and Asbestos -Containing Products , WT/DS135/AB/R , adopted 5 
April 2001, DSR 2001:VII, p. 3243  
EC – Asbestos  Panel Report, European Communities – Measures Affecting Asbestos and 
Asbestos -Containing Products , WT/DS135/R  and Add.1, adopted 5 April 
2001, as modified by Appellate Body Report WT/DS135/AB/R, DSR 
2001:VIII, p. 3305  
EC and certain member States 
– Large Civil Aircraft  Appellate Body Report, European Communities and Certain Member States – 
Measures Affecting Trade in Large Civil Aircraft , WT/DS316/AB/R , adopted 1 
June 2011, DSR 2011:I, p. 7  
EC – Bananas III  Appellate Body Report, European Communities – Regime for the 
Importation, Sale and Distribution of Bananas , WT/DS27/AB/R , adopted 25 
September 1997, DSR 1997:II, p. 591  
EC – Bananas III  Panel Reports, European Communities – Regime for the Importation, Sale and 
Distribution of Bananas , WT/DS27/R/ECU (Ecuador)  / WT/DS27/R/GTM, 
WT/DS27/R/HND (Guatemala and Honduras)  / WT/DS27/R/MEX (Mexico)  / 
WT/DS27/R/USA (US), adopted 25  September 1997, as modified by Appellate 
Body Report WT/DS27/AB/R, DSR 1997:II, p.  695 to DSR 1997:III, p.  1085 
EC – Chicken Cuts  Appellate Body Report, European  Communities – Customs Classification of 
Frozen Boneless Chicken Cuts , WT/DS269/AB/R , WT/DS286/AB/R , adopted 
27 September 2005, and Corr.1, DSR 2005:XIX, p.  9157 
EC – Commercial Vessels  Panel Report, European Communities – Measures Affecting  Trade in 
Commercial Vessels , WT/DS301/R , adopted 20 June 2005, DSR 2005:XV,  p. 
7713 
EC – Computer Equipment  Appellate Body Report, European Communities – Customs Classification of 
Certain Computer Equipment , WT/DS62/AB/R , WT/DS67/AB/R , 
WT/DS68/AB/R , adopted 22 June 1998, DSR 1998:V, p. 1851  
EC – Export Subsidies on Sugar  Appellate Body Report, European Communities – Export Subsidies on Sugar , 
WT/DS265/AB/R , WT/DS266/AB/R , WT/DS283/AB/R , adopted 19 May 2005, 
DSR 2005:XIII, p. 6365  WT/DS484/R  
 
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  EC – Export Subsidies on Sug ar 
(Australia)  Panel Report, European Communities – Export Subsidies on Sugar, 
Complaint by Australia , WT/DS265/R , adopted 19 May 2005, as modified by 
Appellate Body Report WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, 
DSR 2005:XIII, p. 6499  
EC – Export Subsidies on Sugar 
(Brazil)  Panel Report, European Communities – Export Subsid ies on Sugar, 
Complaint by Brazil , WT/DS266/R , adopted 19 May 2005, as modif ied by 
Appellate Body Report WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, 
DSR 2005:XIV, p. 6793  
EC – Export Subsidies on Sugar 
(Thailand)  Panel Report, European Communities – Export Subsidies on Sugar, 
Complaint by Thailand , WT/DS283/R , adopted 19 May 2005, as modified by 
Appellate Body Report WT/DS265/AB/R, WT/DS266/AB/R, WT/DS2 83/AB/R, 
DSR 2005:XIV, p. 7071  
EC – Fasteners (China)  Appellate Body Report, European Communities – Definitive Anti -Dumping 
Measures on Certain Iron or Steel Fasteners from China , WT/DS397/AB/R , 
adopted 28 July 2011, DSR 2011:VII, p. 3995  
EC – Hormones  Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Horm ones) , WT/DS26/AB/R , WT/DS48/AB/R , adopted 13 February 1998, 
DSR 1998:I, p. 135  
EC – IT Products  Panel Reports, European Communities and its member  States – Tariff 
Treatment of Certain Information Technology Products , WT/DS375/R  / 
WT/DS376/R  / WT/DS377/R , adopted 21 September 2010, DSR 2010:III, p. 
933 
EC – Sardines  Panel Report, European Communities – Trade Descrip tion of Sardines , 
WT/DS231/R  and Corr.1, adopted 23 October 2002, as modifi ed by Appellate 
Body Report WT/DS231/AB/R, DSR 2002:VIII, p. 3451  
EC – Seal Products  Appellate Body Reports, European Communities – Measures Prohibiting the 
Importation and Marketing of Seal Products , WT/DS400/AB/R  / 
WT/DS401/AB/R , adopted 18 June 2014, DSR 2014:I, p. 7  
EC – Selected Customs Matters  Appellate Body Report, European Communities – Selected Customs Matters , 
WT/DS315/AB/R , adopted 11 December 2006, DSR 2006:IX, p. 3791  
EC – Tariff Preferences  Appellate Body Report, European Communities – Conditions for the Granting 
of Tariff Preferences to Developing Countries , WT/DS246/AB/R , adopted 20 
April 2004, DSR 2004:III, p. 925  
EU – Biodiesel (Argentina)  Appellate Body Report, European Union – Anti-Dumping Measures on 
Biodiesel from Argentina , WT/DS473/AB/R  and Add.1, adopted 26 October 
2016 
Guatemala – Cement I  Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding 
Portland Cement from Mexico , WT/DS60/AB/R , adopted 25 November 1998, 
DSR 1998:IX, p. 3767  
India – Autos  Panel Report, India – Measures Affecting the Automotive Sector , 
WT/DS146/R , WT/DS175/R , and Corr.1, adopted 5 April 2002, DSR 2002:V, 
p. 1827  
India – Solar Cells  Appellate Body Report, India – Certain Measures Relating to Solar Cells and 
Solar Modules , WT/DS456/AB/R  and Add.1, adopted 14 October 2016  
Indonesia – Autos  Panel Report, Indonesia – Certain Measures Affecting the Automobile 
Industry , WT/DS54/R , WT/DS55/R , WT/DS59/R , WT/DS64/R , Corr.1 and 
Corr.2, a dopted 23 July 1998, and Corr.3 and Corr.4, DSR 1998:VI, p. 2201  
Indonesia – Import Licensing 
Regimes  Panel Report, Indonesia – Importation of Horticultural Products, Animals and 
Animal Products , WT/DS477/R , WT/DS478/R , Add.1 and Corr.1, circulated to 
WTO Members 22 December 2016 [ appealed; adoption pending ] 
Japan – Alcoholic Beverages II  Appellate Body Report, Japan – Taxes on Alcoholic Beverages , 
WT/DS8/AB/R , WT/DS10/AB/R , WT/DS11/AB/R , adopted 1 November 1996, 
DSR 1996:I, p. 97  
Korea – Alcoholic Beverages  Panel Report, Korea – Taxes on Alcoholic Beverages , WT/DS75/R , 
WT/DS84/R , adopted 17 February 1999, as modified by Appellate Body 
Report WT/DS75/AB/R, WT/DS84/AB/R, DSR 1999:I, p. 44  WT/DS484/R  
 
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  Japan – Apples  Appellate Body Report, Japan – Measures Affecting the Importation o f 
Apples , WT/DS245/AB/R , adopted 10 December 2003, DSR 2003:IX, p. 
4391 
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of 
Certain Dairy Products , WT/DS98/AB/R , adopted 12 January 2000, DSR 
2000:I, p. 3  
Korea – Various Measures on 
Beef Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled 
and Frozen Beef , WT/DS161/AB/R , WT/DS169/AB/R , adopted 10 January 
2001, DSR 2001:I, p. 5  
Mexico – Corn Syrup (Article 
21.5 – US) Appellate Body Report, Mexico – Anti-Dumping Investigation of High 
Fructose Corn Syrup (HFCS) from the United States – Recourse to Article 
21.5 of the DSU  by the United States , WT/DS132/AB/RW , adopted 21 
November 2001, DSR 2001:XIII, p. 6675  
Mexico – Taxes on Soft Drinks  Panel Report, Mexico – Tax Measures on Soft Drinks and Other Beverages , 
WT/DS308/R , adopted 24 March 2006, as modified by Appellate Body Report 
WT/DS308/AB/R, DSR 2006:I, p. 43  
Peru – Agricultural P roducts  Panel Report, Peru – Additional Duty on Imports of Certain Agricultural 
Products , WT/DS457/R  and Add.1, adopted 31 July 2015, as modified by 
Appellate Body Report WT/DS457/AB/R  
Philippines – Distilled Spirits  Appellate Body Reports, Philippines – Taxes on Distilled Spirits , 
WT/DS396/AB/R  / WT/DS403/AB/R , adopted 20 January 2012, DSR 
2012:VIII, p. 4163  
Russia – Pigs (EU)  Panel Report, Russian Federation – Measures on the Importation of Live Pigs, 
Pork and Other  Pig Products from the European Union , WT/DS475/R  and 
Add.1, adopted 21 March 2017, as modified by Appellate Body Report 
WT/DS475/AB/R  
Russia – Tariff Treatment  Panel Report, Russia – Tariff Treatment of Certain Agricultural and 
Manufacturing Products , WT/DS485/R , Corr.1, Corr.2, and Add.1, adopted 
26 September 2016  
Thailand – H-Beams  Appellate Body Report, Thailand – Anti-Dumping Duties on Angl es, Shapes 
and Sections of Iron or Non -Alloy Steel and H -Beams from Poland , 
WT/DS122/AB/R , adopted 5 April 2001, DSR 2001:VII, p. 2701  
Turkey – Rice Panel Report, Turkey – Measures Affecting the Importation of Rice , 
WT/DS334/R , adopted 22 October 2007, DSR 2007:VI, p. 2151  
US – Animals  Panel Report, United States – Measures Affecting the Importation of Animals, 
Meat and Other Animal Products from Ar gentina , WT/DS447/R  and Add.1, 
adopted 31 August 2015  
US – Anti-Dumping an d 
Countervailing Duties (China)  Appellate Body Report, United States – Definitive Anti -Dumping and 
Countervailing Duties on Certain Products from China , WT/DS379/AB/R , 
adopted 25 March 2011, DSR 2011:V, p. 2869  
US – Carbon Steel  Appellate Body Report, United States – Countervailing Duties on Certain 
Corrosion -Resistant Carbon Steel Flat Products from Germany , 
WT/DS213/AB/R  and Corr.1, adopted 19 D ecember 2002, DSR 2002:IX, p. 
3779 
US – Clove Cigarettes  Appellate Body Report, United States – Measures Affecting the Production 
and Sale of Clove Cigarettes , WT/DS406/AB/R , adopted 24 April 2012, DSR 
2012: XI, p. 5751  
US – Clove Cigarettes  Panel Report, United States – Measures Affecting the Production and Sale of 
Clove Cig arettes , WT/DS406/R , adopted 24 April 2012, as modified by 
Appellate Body Re port WT/DS406/AB/R, DSR 2012: XI, p. 5865  
US – Continued Zeroing  Appellate Body Report, United States – Continued Existence and Application 
of Zeroing Methodology , WT/DS350/AB/R , adopted 19 February 2009, DSR 
2009:III, p. 1291  
US – COOL  Panel Reports, United States – Certain Country of Origin Labelling (COOL) 
Requirements , WT/DS384/R  / WT/DS386/R , adopted 23 July 2012, as 
modified by Appellate Body Reports WT/DS384/AB/R / WT/DS386/AB/R, 
DSR 2012:VI, p. 2745  WT/DS484/R  
 
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  US – Counterv ailing and Anti -
Dumping Measures (China)  Appellate Body Report, United States – Countervailing and Anti -Dumping 
Measures on Certain Products from China , WT/DS449/AB/R  and Corr.1, 
adopted 22 July 2014, DSR 2014:VIII, p. 3027  
US – FSC Panel Report, United States – Tax Treatment for "Foreign Sales 
Corporations" , WT/DS108/R , adopted 20 March 2000, as modified by 
Appellate Body Report WT/DS108/AB/R, DSR 2 000:IV, p. 1675  
US – Gasoline  Appellate Body Report, United States – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R , adopted 20 May 1996, DSR 1996:I, p. 
3 
US – Gambling  Appellate Body Report, United States – Measures Affecting the Cross -Border 
Supply of Gambling and Betting Services , WT/DS285/AB/R , adopted 20 April 
2005, DSR 2005:XII, p. 5663 (and Corr.1, DSR 2006:XII, p. 5475)  
US – Oil Country Tubular 
Goods Sunset Reviews  Appellate Body Report, United States – Sunset Reviews of Anti -Dumping 
Measures on Oil Country Tubular Goods from Argentina , WT/DS268/AB/R , 
adopted 17 December 2004, DSR 2004:VII, p. 3257  
US – Poultry (China)  Panel Report, United States – Certain Measures Affecting Imports of Poultr y 
from China , WT/DS392/R , adopted 25 October 2010, DSR 2010:V, p. 1909  
US – Upland Cotton  Appellate Body Report, United States – Subsidies on Upland Cotton , 
WT/DS267/AB/R , adopted 21 March 2005, DSR 2005:I, p. 3  
US – Section 301 Trade Act  Panel Report, United States – Sections 301 -310 of the Trade Act of 1974 , 
WT/DS152/R , adopted 27 January 2000, DSR 2000:II, p. 815  
US – Shrimp (Thailand)  Panel Report, United States – Measures Relating to Shrimp from Thailand , 
WT/DS343/R , adopted 1 August 2008, as modified by Appellate Body Report 
WT/DS343/AB/R / W T/DS345/AB/R, DSR 2008:VII, p. 2539  
US – Tuna II (Mexico) (Article 
21.5 – Mexico)  Appellate Body Report, 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  and Add.1, adopted 3 
December 2015  
US – Tuna II (Mexico)  Appellate Body Report, United States – Measures Concerning the 
Importation, Marketing and Sale of Tuna and Tuna Products , 
WT/DS381/AB/R , adopted 13 June 2012, DSR 2012:IV, p. 1837  
US – Wool Shirts and Blouses  Appellate Body Report, United States – Measure Affecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R , adopted 23 May 1997, 
and Corr.1, DSR 1997:I, p. 323  
US – Wool Shirts  and Blouses  Panel Report, United States – Measure Affecting Imports of Woven Wool 
Shirts and Blouses from India , WT/DS33/R , adopted 23 May 1997, upheld by 
Appellate Body Report WT/DS33/AB/R, DSR 1997:I, p. 343  
US – Corrosion -Resistant Steel 
Sunset Review  Appellate Body Report, United States – Sunset Review of Anti -Dumping 
Duties on Corrosion -Resistant Carbon Steel Flat Products from Japan , 
WT/DS244/AB/ R, adopted 9 January 2004, DSR 2004:I, p. 3  
US – Zeroing (EC)  Appellate Body Report, United States – Laws, Regulations and Methodology 
for Calculating Dumping Margins ("Zeroing") , WT/DS294/AB/R , adopted 9 
May 2006, and Corr.1, DSR 2006:II, p. 417  
US – Zeroing (Japan) (Article 
21.5 – Japan)  Appellate Body Report, United Stat es – Measures Relating to Zeroing and 
Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan , 
WT/DS322/AB/RW , adopted 31 August 2009, DSR 2009:VIII, p. 3441  
Thailand – Cigarettes 
(Philippines)  Appellate Body Report, Thailand – Customs and Fiscal Measures on 
Cigarettes from the Philippines , WT/DS371/AB/R , adopted 15 July 2011 , DSR 
2011:IV, p. 2203  
Thailand – Cigarettes 
(Philippines)  Panel R eport, Thailand – Customs and Fiscal Measures on Cigarettes from 
the Philippines , WT/DS371/R , adopted 15 July 2011, as modified by 
Appellate Body Report WT/DS371/AB/R , DSR 2011:IV, p. 2299  
 
 WT/DS484/R  
 
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  TABLE OF FREQUENTLY CITED EXHI BITS  
Exhibit  Title Short Title (if applicable)  
BRA-01/IDN -24 Ministry of Agriculture Regulation 
58/Permentan /PK.210/11/2015  MoA 58/2015  
BRA-03/IDN -39 Ministry of Trade Regulation No. 5/2016 
Regarding Provisions on Export and 
Import of Animal and Animal Products.  MoT 05/2016  
BRA-04 OECD Review of Agricultural Policies: 
Indonesia 2012   
BRA-08/IDN -100 Ministry o f Agriculture Regulation 
20/Permentan/OT.140/4/2009  MoA 20/2009  
BRA-14 Minutes of the Fourth Meeting of 
Consultative Committee on agriculture 
(CCA) between the Ministry of 
Agriculture of the Republic of Indonesia 
and the Ministry of Agriculture, Livestoc k 
and Food Supply of Federative Republic 
of Brazil  Minutes of the CCA meeting of 15 and 16 
September 2010  
BRA-29/IDN -1 Law of the Republic of Indonesia Number 
18/2009 on Husbandry and Animal 
Health  Law 18/2009  
BRA-34 Ministry of Agriculture Regulation 
139/Permentan/PD/410/12/2014  MoA 139/2014  
BRA-42/IDN -127 Ministry of Trade Regulation 46 /M -
DAG/PER/8/2013  MoT 46/2013  
BRA-43 Brazilian Veterinary Certificates for 
poultry (2009) and turkey and duck 
(2010) proposed by Brazil to Indonesia   
BRA-46/IDN -05 Law of Republic of Indonesia N. 33/2014 
concerning Halal Product Assurance  Law 33/2014  
BRA-48/IDN -93 Ministry of Agriculture Regulation 
34/Permentan/PK210/7/2016  MoA 34/2016  
BRA-56 Online article entitled : Indonesia aims 
for poultry and beef self -sufficien cy  
IDN-31 Government Regulation No. 95/2012 
Concerning Veterinary Public Health and 
Animal Welfare.  GR 95/2012  
IDN-56 Online article entitled : Indonesia aims 
for poultry and beef self -sufficiency   
IDN-74 Government Regulation No. 69/1999 on 
Food Labell ing and Advertisement.  GR 69/1999  
IDN-84 Regulation EC No. 852/2004 of the 
European Parliament and of the Council 
on the Hygiene of Foodstuffs of 29 April 
2004  EC Reg 852/2004  
IDN-88 Import Recommendation by the Minister 
of Agriculture for beef from New  Zealand 
in December 2015   
IDN-109 MoT Regulation No. 59/2016 concerning 
Export and Import Prohibitions on 
Animal and Animal Products  MoT 59/2016  WT/DS484/R  
 
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  ABBREVIATIONS USED I N THIS REPORT  
Abbreviation  Description  
Animal Law  Law 18/2009  
API Importer Identifica tion Number  
BPJPH  Halal Product Organizing Agency  
CCA Consultative Committee on agriculture  
Consumer Law  Law 8/1999  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
Food Law  Law 18/2012 of Ind onesia  
GATT 1994  General Agreement on Tariffs and Trade 1994  
Halal Law  Law 33/2014  
LPH Halal examination agencies  
Import Licensing Agreement  Agreement on Import Licensing Procedures  
MoA Minister of Agriculture  or Ministry of Agriculture  
MoA Regulatio n Regulation of the Minister of Agriculture  or Regulation of the Ministry of 
Agriculture  
MoT Minister of Trade  or Ministry of Trade   
MoT Regulation  Regulation of the Minister of Trade  or Regulation of the Ministry of Trade  
MUI Indonesian Ulama Council  
OECD  Organisation for Economic Co -operation and Development  
OIE World Organisation for Animal Health  
SPS Agreement  Agreement on the Application of Sanitary and Phytosanitary Measures  
TBT Agreement  Agreement on Technical Barriers to Trade  
WTO World Trad e Organization  
 WT/DS484/R  
 
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  1  INTRODUCTION  
1.1  Complaint by Brazil  
1.1.  On 16 October 2014, Brazil requested consultations with Indonesia pursuant to Articles 1 and 
4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), 
Article XXII of the G eneral Agreement on Tariffs and Trade 1994 (GATT 1994), Article 11 of the 
Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), Article  6 
of the Agreement on Import Licensing Procedures (Import Licensing Agreement), Article  14 of the 
Agreement on Technical Barriers to Trade (TBT Agreement), Article  19 of the Agreement on 
Agriculture , and Article 8 of the Agreement on Preshipment Inspection with respect to the 
measures and claims set out below.1 
1.2.  Consultations were held on 15 an d 16 December 2014. These consultations failed to resolve 
the dispute.  
1.2  Panel establishment and composition  
1.3.  On 15 October 2015, Brazil requested the establishment of a panel pursuant to Article  6 of 
the DSU with standard terms of reference.2 At its meeting on 3 December 2015, the 
Dispute  Settlement Body (DSB) established a panel pursuant to the request by Brazil in documents 
WT/DS484/8 and WT/DS484/8/Corr.1, in accordance with Article  6 of the DSU.3 
1.4.  The Panel's terms of reference are the following:  
To examin e, in the light of the relevant provisions of the covered agreements cited by 
the parties to the dispute, the matter referred to the DSB by Brazil in documents 
WT/DS484/8 and WT/DS484/8/Corr.1, and to make such findings as will assist the 
DSB in making the  recommendations or in giving the rulings provided for in those 
agreements.4 
1.5.  Argentina, Australia, Canada, Chile, China, the European Union, India, Japan, the Republic of 
Korea, New Zealand, Norway, Paraguay, the  Russian Federation, the Separate Customs Te rritory 
of Taiwan, Penghu, Kinmen and Matsu (Chinese Taipei), Thailand, the  United States, and Viet Nam 
notified their interest in participating in the Panel proceedings as third parties.  
1.6.  On 22 February 2016 , Brazil requested the Director -General to determ ine the composition of 
the panel, pursuant to Article 8.7 of the DSU . On 3 March 2016, the Director -General accordingly 
composed the Panel as follows:  
Chairperson:  Mr Mohammad Saeed  
 
Members:   Mr Sufyan Al -Irhayim  
   Ms Claudia Orozco  
 
1.7.  On 28 April 2016 and  23 May 2016, Oman and Qatar respectively requested to join as third 
parties. On 25 May 2016, the Panel consulted with the parties. Brazil took the view that neither 
request should be accepted. Indonesia had no objections to the requests.  On 3 June 2016, t he 
Panel informed Oman, Qatar, and the parties of its decision to accept the requests. On 6 June 
2016, the Panel informed the other third parties of its decision to accept the requests. The Panel's 
ruling on the requests is set out in section 7.1.1 below . 
                                                
1 See WT/DS484/1.  
2 WT/DS484/8 and WT/DS484/8/Corr.1.  
3 See WT/DSB/M/371.  
4 WT/DS484/9.  WT/DS484/R  
 
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  1.3  Panel proceedings  
1.3.1   General  
1.8.  On 16 March 2016, after consulting with the parties, the Panel adopted its 
Working  Procedures5 and timetable.  
1.9.  On 22 April 2016 and 10 June 2016, Brazil and Indonesia respectively submitted their fir st 
written submissions.  
1.10.   On 13 and 15 July 2016, the Panel held its first substantive meeting with the parties. A 
session with the third parties took place on 14 July 2016. Following the meeting, on 19 July 2016, 
the Panel sent written questions to the part ies and third parties. On the same date, the parties 
sent written questions to each other. The Panel received  the responses to questions on 2  August 
2016.  
1.11.   On 2 September 2016, Brazil and Indonesia submitted their second written submissions.  
1.12.   On 11 and 12 Oc tober 2016, the Panel held a second substantive meeting with the parties. 
Following the meeting, on 21 October 2016, the Panel sent written questions to the parties. The 
Panel received the r esponses to those questions on 4 November 2016. The Panel gave the  parties 
an opportunity to comment on each other's responses. The Panel received the comments on 
18 November  2016.  
1.13.   On 15 December 2016, the Panel issued the descriptive part of its Report to the parties. The 
Panel issued its Interim Report to the parties o n 15 March 2017 . The Panel issued its Final Report 
to the parties on 10 May 2017 . 
1.3.2   Preliminary ruling  
1.14.   On 10 June 2016, together with its first written submission, Indonesia presented a request 
for a preliminary ruling concerning certain alleged defects in t he panel request and certain 
inconsistencies between the scope of the panel request and Brazil's first written submission.  
1.15.   On 13 June 2016, the Panel invited Brazil to comment on Indonesia's preliminary ruling 
request. On the same date, the Panel also inv ited the third parties to comment on Indonesia's 
preliminary ruling request and to file those comments together with their third -party submissions.  
1.16.   On 17  June 2016, the United States, as a third party, provided its views. No other third 
party provided com ments. On 27 June 2016, the Panel received comments from Brazil.  
1.17.   On 13 and 15 July 2016, in the course of the first meeting with the parties, the Panel posed 
questions to both parties in connection with Indonesia's request for a preliminary ruling.  
1.18.   On 19 July 2016, the Panel informed the parties of its conclusions with respect to 
Indonesia's preliminary ruling request. On 27 July 2016, the Panel informed the third parties of its 
conclusions. The Panel's conclusions as well as the reasoning supporting those  conclusions are set 
out in section 7.1.2 below . 
2  FACTUAL ASPECTS  
2.1  The measures at issue  
2.1.  This dispute concerns measures imposed by Indonesia on imports of certain chicken meat 
and chicken products from Brazil.6 
                                                
5 See the Panel's Working Procedures in Annex A -1. 
6 Brazil describes the products  at issue in this dispute as meat and products from fowls of the species 
Gallus  domesticus , corresponding to the following HS  codes:  (i) 0207.11 (whole chicken, not cut into parts, 
fresh or chilled); (ii)  0207.12 (whole chicken, not cut into parts, frozen) ; (iii) 0207.13 (chicken cuts and offal, WT/DS484/R  
 
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  2.2.  Brazil makes cl aims against two categories of measures: (i) an alleged general prohibition on 
the importation of chicken meat and chicken products; and (ii) specific restrictions and prohibitions 
on the importation of chicken meat and chicken products.  
2.1.1   Alleged general pr ohibition  
2.3.  In its panel request, Brazil describes the alleged general prohibition as follows:  
Indonesia imposes several prohibitions or restrictions on the importation of chicken 
meat and chicken products which, combined, have the effect of a general prohib ition 
on the importation of these products, as follows:  
a. Indonesia does not allow the importation of animal and animal products not listed in the 
appendices of the relevant regulations7. With regard to chicken, the list only 
contemplates HS codes referred t o as whole chicken, fresh or chilled and frozen8. The HS 
codes for chicken meat cut into pieces9 are not described in any of the "positive lists" 
which contain the products that can be imported into Indonesia's territory;10  
b. Domestic food production (includ ing "staple food"11, which encompasses chicken meat 
and chicken products) and national food reserve are prioritized over food import, which 
is only authorized as an exception, when domestic food supply in Indonesia is not 
considered "sufficient" by the gove rnment;12   
c. Imports of essential and strategic goods may be prohibited and/or restricted and prices 
may be controlled by the Indonesian government.13 Thus, import and export operations 
may be postponed by the Minister of Trade during a force majeure event. A s chicken 
meat and chicken products fit into the categories of essential and strategic goods14, even 
if they were allowed to enter into Indonesia, their effective importation would be subject 
to the discretion of the Minister of Trade;  
d. The Indonesian govern ment limits the importation of chicken meat and chicken products 
to certain intended uses. The importation of chicken meat and chicken products shall 
only be allowed to meet the needs of "hotel, restaurant, catering, manufacturing, other 
special needs, and  modern market";15  
e. Indonesia has unduly refused to examine and approve the Health Certificates for poultry 
products (including chicken meat and chicken products) proposed by Brazil since 2009;  
f. Indonesia imposes prohibitions and/or restrictions to importati on through its Import 
Licensing Regime.16 In order to import chicken meat and chicken products, importers 
                                                                                                                                                  
fresh or chilled); (iv) 0207.14 (chicken cuts and offal, frozen) ; and (v) 1602.32 (chicken meat, other leftover 
meat and blood that has been processed or preserved). See Brazil's panel request, p. 1.  
7 (footnote ori ginal) The products allowed to be imported by Indonesia are currently listed in the 
Appendix I and II of MoA Regulation 139/2014 and the Appendix II of MoT Regulation 46/2013.  
8 (footnote original) HS Codes 020711 and 020712.  
9 (footnote original) HS Codes  020713 and 020714.  
10 (footnote original) Furthermore, the HS code for processed chicken products is not described in the 
"positive list" of MoA Regulation 139/2014.  
11 (footnote original) According to Article 1.15 of Law 18/2012 ("Food Law"), the term "sta ple food" 
means "[…] food that is intended as the main daily food according to local potential resources and wisdom".  
12 (footnote original) The determination of self -sufficiency is under the discretion of the Government 
authorities. The Government is empow ered to establish a tax and/or tariff policy in favor of national interests 
or to regulate the import of staple food (Articles 14, 15, 36, 55 and 56 of Law 18/2012).   
13 (footnote original) Law 7/2014 ("Trade Law") imposes a number of measures that institu tionalize the 
government's central role in trade management as well as provides further instruments towards government 
intervention and protectionist actions.  
14 (footnote original) According to the Trade Law, strategic goods are defined as goods that have "a 
strategic role in the smooth running of national development".  
15 (footnote original) See Article 32(2) of MoA Regulation 139/2014.  
16 (footnote original) Imports of animals and animal products, including chicken cuts, which are not 
listed in the HS codes  described in the positive lists of MoA Regulation 139/2014 and of MoT Regulation 
46/2013, are prohibited. Furthermore, through the Trade Law and MoA Regulation 139/2014, the Indonesian WT/DS484/R  
 
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  must obtain import licenses after several approval and overlapping authorization stages, 
covered by different regulations and authorities; and  
g. Indonesi a establishes an import prohibition through different regulations regarding halal 
slaughtering and labelling requirements for imported chicken meat and chicken 
products.17, 18 
2.4.  In its subsequent submissions, Brazil did not make reference to the last element, identified 
above, in its description of the alleged general prohibition. Reference to this last element was 
made, however, when discussing specific restrictions and prohibitions applied by Indonesia to its 
imports of chicken meat and chicken products.  This is discussed in section 7.8 below . 
2.1.2   Specific restrictions and prohibitions  
2.5.  In addition to the alleged general prohibition on the importation of chicken  meat and chicken 
products, Brazil  also challenges a number of individua l measures. Four of those individual 
measures, albeit described in slightly different terms in their own section of the panel request, 
correspond to items (a), (d), (e), and (f)  of the previous section . They pertain  respectively  to 
(i) the non -inclusion of  certain chicken products in the list of products that may be imported; 
(ii) the limitation of imports of chicken meat and chicken products to certain intended uses; 
(iii) Indonesia's alleged undue delay in the approval of health certificates for chicken p roducts; and 
(iv) Indonesia's import licensing regime.  
2.6.  In addition , Brazil challenges two more individual measures:  
a. Surveillance and implementation of halal slaughtering and labelling requirements for 
imported chicken meat and chicken products established by different Indonesian 
regulations, which are much stricter than the surveillance and the implementation of 
halal requirements applied to the domestic production in Indonesia19; and  
b. Restrictions on the transportation of imported products by requiring direc t transportation 
from the country of origin to the entry points in Indonesia.20 
2.7.  Brazil's panel request identifies a further two individual measures. However, Brazil has not 
developed claims in its subsequent submissions in respect of these measures.21 
2.2  Other factual aspects  
2.8.  During the proceedings, certain legal instruments underlying a number of the measures at 
issue were either revoked or revoked and replaced. Table 1 below indicates the two 
legal instruments that are  central to this dispute, as identified by Brazil in its panel request, and 
the corresponding legal instruments that revoked and replaced them, as indicated by the parties in 
their respective submissions.22 
                                                                                                                                                  
government controls the type, quantity, price and use of chicken meat and chicken products allowed to be 
imported into Indonesia.  
17 (footnote original) See MoA Regulation 139/2014 and Law 33/2014.  
18 Brazil's panel request, pp. 1 -2. For ease of reference, bullet  points  in the original were replaced with 
letters.  
19 Brazil's pa nel request, part II, item No. iv, fourth bullet. See also Brazil's first written submission, 
paras. 136 -139. 
20 Brazil's panel request, part II, item Nos. i, third bullet and ii, third bullet. See also Brazil's first written 
submission, paras. 132 -135. 
21 First, when challenging restrictions on the transportation of imported products, Brazil's panel request 
also indicates that such restrictions are in place by virtue of "limiting the ports of entry for chicken meat and 
chicken products". Second , Brazil's pan el request refers to Indonesia's failure to notify the relevant laws and 
regulations constituting an inconsistency with Indonesia's WTO's "transparency requirements".  
22 Other legal instruments have also been modified in the course of the proceedings. The c hanges to 
those other instruments will be identified, as relevant, in the examination of the different claims.  WT/DS484/R  
 
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  Table 1 Amendments and rev isions in the relevant legal instruments  
Panel request23 
("first set of legal instruments")  
 First written submission24 
("second set of legal 
instruments")  Second25 
written submission  
("third set of legal 
instruments")  
 MoA 139/2014 of  
23 December 201426 
 MoT 46/2013 of  
30 August 201327  MoA 58/2015 of 
25 November 201528 
 MoT 05/2016 of  
28 January 201629  MoA 34/2016 of 
15 July 201630 
 MoT 59/2016 of  
15 August 201631 
 
2.9.  The Panel discusses its approach with regard to the changes in the  different sets of  legal 
instruments in section 7.2.4 below . 
3  PARTIES' REQUESTS FO R FINDINGS AND RECOM MENDATIONS  
3.1.   Brazil requests the Panel to find that:  
a. Indonesia's general prohibition on the importation of chicken meat and chicken products 
is inco nsistent with Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on 
Agriculture;  
b. Indonesia's prohibition on the importation of chicken cuts and other prepared or 
preserved chicken meat is inconsistent with Article XI:1 of the GATT 1994 and Arti cle 4.2 
of the Agreement on Agriculture;  
c. Indonesia's restrictions on the use of imported chicken meat and chicken products is 
inconsistent with Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on 
Agriculture;  
d. Indonesia's restrictive import li censing procedures is inconsistent with Article XI:1 of the 
GATT 1994, Article 4.2 of the Agreement on Agriculture, and Article 3.2 of the 
Agreement on Import Licensing Procedures;  
e. Indonesia's restrictive transportation requirements for imported chicken me at and 
chicken products is inconsistent with Article XI:1 of the GATT 1994 and Article 4.2 of the 
Agreement on Agriculture;  
f. Indonesia's restrictions on the use of imported chicken meat and chicken products is 
inconsistent with Article III:4 of the GATT 199 4; 
                                                
23 The panel request was filed by Brazil on 15 October 2015. The Panel was established on 3 December 
2015.  
24 Brazil's first written submission was  received by the Panel on 22 April 2016. Indonesia's first written 
submission was received by the Panel on 10 June 2016.  
25 The parties' second written submissions were received on 2 September 2016.  
26 See Brazil's first written submission, para. 58. See als o Indonesia's second written submission, 
para. 6. 
27 See Brazil's first written submission, para. 58. See also Indonesia's second written submission, 
para. 6. 
28 See Brazil's first written submission, para. 58. See also Indonesia's second written submission,  
para. 6. 
29 See Brazil's first written submission, para. 58. See also Indonesia's second written submission, 
para. 6. 
30 See Indonesia's second written submission, para. 32. See also Indonesia's second written submission, 
para. 6. 
31 MoT 37/2016, which was e nacted on 23 May 2016 amended MoT 05/2016. On 15 August 2016, 
MoT 5/2016, as amended by MoT 37/2016, was replaced by MoT 59/2016. See Indonesia's second written 
submission, para.  6. WT/DS484/R  
 
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  g. Indonesia's surveillance and implementation of halal labelling requirements is 
inconsistent with Article  III:4 of the GATT 1994; and  
h. Indonesia's undue delay with regard to the approval of sanitary requirements is 
inconsistent with Article 8 and Annex C of the SPS Agreement.32 
3.2.  Indonesia requests that the Panel reject Brazil's' claims in this dispute in their entirety.33 
4  ARGUMENTS OF THE PAR TIES  
4.1.  The arguments of the parties are reflected in their executive summaries, provided to the 
Panel in accordance with paragraph 21 of the Working Procedures adopted by the Panel 
(see Annexes B -1 and B -2). 
5  ARGUMENTS OF THE THI RD PARTIES  
5.1.  The arguments of Argentina, Australia, Canada, the European Union, Japan, New Zealand, 
Norway, Paraguay, Qatar, and the United States are reflected in their executive summaries, 
provided in accordance with paragraph 22 of the Working Procedures adopted by the Panel 
(see Annexes C -1, C-2, C-3, C-4, C-5. C-6, C-7, C-8, C-9, and C -10). Chile, China, India, the 
Republic of Korea, Oman, the  Russi an Federation, Chinese Taipei, Thailand, and Viet Nam did not 
submit written or oral arguments to the Panel.  
6  INTERIM REVIEW  
6.1  Introduction  
6.1.  On 15 March 2017, the Panel issued its Interim Report to the parties. On 29 March 2017, 
Brazil and Indonesia submitted written requests for the Panel to review aspects of the Interim 
Report. On 12 April 2017, the parties submitted comments on each other's request for review. 
Neither party requested an interim review meeting.  
6.2.  In accordance with Article 15.3 of the DSU, this  section of the Report sets out our response 
to the parties' requests for review of precise aspects of the Report made at the interim review 
stage. We discuss the parties' requests for substantive modifications below, in sequential order. In 
addition to th e substantive requests discussed below, we have made editorial and drafting 
improvements to the Report, including, where relevant, those suggested by the parties.  
6.3.  The numbering of some of the paragraphs and the footnotes in the Report has changed from 
that in the Interim Report. The discussion below refers to the numbering in the Interim Report, 
and where it differs, the corresponding numbering in the Report is included.  
6.2  Preliminary Ruling: Whether the alleged general prohibition is within the Panel's 
terms  of reference  
6.4.  Regarding paragraph 7.33 , Indonesia notes that Brazil's panel request does not mention 
the word "unwritten" and thus requests the Panel to reconcile its description of the measure at 
issue with that provided in Brazil's panel request. Brazil  disagrees with Indonesia and considers 
that the wording of paragraph 7.33 is adequate. Brazil suggests an alternative wording should the 
Panel decide to amend this paragraph.  
6.5.  We see no need to amend this paragraph as suggested by Indonesia. We are cogniz ant of the 
fact that Brazil's panel request does not include the term "unwritten" in its description of the 
alleged general prohibition. However, we read that description to be referring to an unwritten 
measure and find confirmation for this in Brazil's su bmissions. This paragraph of the Interim 
Report reflects our conclusion, which is based on our understanding of Brazil's panel request.  
                                                
32 Brazil's first written submission, para. 316. See also Brazil's second w ritten submission, para. 225.  
33 Indonesia's first written submission, para. 373 . See also Indonesia's second written submission, 
para. 178. WT/DS484/R  
 
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  6.3  Order of analysis: Whether Article XI of the GATT 1994 and Article 4.2 of the 
Agreement on Agriculture are mutually exc lusive  
6.6.  Regarding paragraph 7.73 , Indonesia requests the Panel to delete its reference to "the 
exceptions set out" when referring to Article XI:2 of the GATT 1994, because Indonesia considers 
that this reference could lead to confusion about the nature of that provision. Brazil does not 
comment on Indonesia's request.  
6.7.  We accept Indonesia's suggestion, because we agree with Indonesia that the expression "the 
exceptions set out" may lead to confusion.  
6.4  Individual measure 1: Positive list requirement  
6.8.  Brazil requests the Panel to complement the first sentence of paragraph 7.149  to reflect 
more accurately Brazil's suggestion of an alternative less -trade restrictive measure. Indonesia 
does not comment on Brazil's request.  
6.9.  We see no need to amend this paragraph as suggested by Brazil. The language that Brazil 
requests us to add is not included in the relevant sections of Brazil's submissions referred to in the 
relevant footnote to this paragraph of the Interim Report. Moreover, in our view, the context 
provided b y the preceding paragraphs makes this addition unnecessary.  
6.10.   Regarding paragraph 7.152 , Brazil requests the Panel to complement this paragraph to 
clarify that certification does not apply to products whose importation is prohibited by virtue of the 
positiv e list requirement. Indonesia does not comment on Brazil's request.   
6.11.   We see no need to amend this paragraph as suggested by Brazil. Brazil is requesting us to 
complement this sentence with an argument developed in the subsequent paragraph of the 
Interim Re port.34 In our view, this addition would disrupt the manner in which we present the 
question before us.  
6.5  Individual measure 2: Intended use requirement  
6.12.   Regarding paragraph 7.207 , Brazil considers that the Interim Report mischaracterizes its 
argument and re quests the Panel to quote directly Brazil's submissions stating that "from a public 
health perspective, frozen chicken is much safer than fresh chicken because freezing is considered 
to be a preservation method that inhibits microbial growth and delays met abolic activities". 
Indonesia requests the Panel not to accept Brazil's proposed change. Indonesia considers that 
Brazil's argument does not address Indonesia's primary concern, and that it is therefore irrelevant.  
6.13.   We made changes to paragraph 7.207 to bet ter summarize Brazil's argument. However, we 
did not include the requested quote as we consider that Brazil's argument is described in more 
detail in paragraph 7.211 which also reflects the above statement made by Brazil.35 Furthermore, 
we slightly shortene d the description of Indonesia's argument because we consider that that 
argument is already described in more detail in paragraph 7.210.36 
6.14.   Brazil requests the Panel to rephrase Indonesia's argument in paragraph 7.210, 
submitting that the wording does not ad equately reflect the evidence presented by Indonesia, 
which concerns re -freezing alone. Indonesia considers that Brazil's suggestions are without merit 
and should not be accepted. Indonesia argues that the evidence is on point with respect to both 
the thaw ing and the re -freezing argument it made. Indonesia also refers to additional evidence 
                                                
34 See para. 7.153  below, where we explain that "[a]s noted above, chicken cuts that can not be 
imported into Indonesia, neither require certification nor need to be traced. A product cannot be certified and 
banned at the same time. Thus, in respect of the banned products subject to the measure at issue, certification 
is a new measure, not one  that already exists as part of a comprehensive policy."  
35 See para. 7.211  below, where we state that "[i]t points to the food safety benefits of freezing meat 
and submits that Ꞌthe freezing process the imported chicken undergo es […] is capable of ensuring that the 
meat will remain fresh for a longer period, as compared to meat that has never been frozenꞋ" (footnotes 
omitted).  
36 We also made changes to para.  7.210  below.  WT/DS484/R  
 
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  that it considers to be on point a reference to which it suggests should be included in paragraph 
7.210.  
6.15.   We made changes to paragraph 7.210 to better reflect Indonesia's  argument and the 
evidence it has submitted. However, we disagree with Brazil's specific suggestion for the following 
reasons. First, we disagree with Brazil's contention that Indonesia's argument is only about re -
freezing. While Indonesia's first written submission may have put more emphasis on the issue of 
re-freezing, its subsequent submissions clearly focus on the issue of improper thawing (prior to re -
freezing).37 Brazil's specific suggestion would therefore be an inaccurate account of Indonesia's 
argum ents. Second, there is a difference between an argument a party makes and the evidence it 
submits. Even in a case where a party's argument is not substantiated by evidence, it would be 
erroneous for a panel to indicate that such argument was not made by th e party.38 Paragraph 
7.210 of the Interim Report first describes Indonesia's argument and then lists the evidence 
submitted by Indonesia. (As requested by Indonesia, we have reflected in that paragraph in a 
more comprehensive manner the relevant evidence su bmitted by Indonesia.) Paragraph 7.213 is 
the Panel's assessment of the relevant evidence including those that Brazil itself has submitted. 
We discuss the parties' comments regarding that assessment below.  
6.16.   Regarding paragraphs 7.213, 7.214 and 7.215 Brazil  essentially disagrees with the 
Panel's assessment of Brazil's evidence and requests the Panel to revisit that assessment. Brazil 
takes the view that a higher degree of reliability should have been given to the Ingham et al. 
research note submitted by Braz il compared to Indonesia's evidence consisting of governmental 
guidelines and instructions. In support of its argument Brazil refers to the Appellate Body's 
jurisprudence in EC – Hormones regarding divergent opinions. Indonesia considers that Brazil's 
request is without merit. Indonesia (here and in its comments on paragraph 7.210) offers its own 
views on how to assess the evidence. Furthermore, Indonesia considers Brazil's reference to EC – 
Hormones  to be misplaced.  
6.17.   We made some changes to paragraphs 7.21 3 and 7.214 to clarify our reasoning in light of 
the parties' comments. However, we reject Brazil's request for the following reasons. First, our 
finding that Indonesia's argument on the existence of a health risk is supported by evidence, is 
based on a re view of all the evidence taken together, including, importantly, the evidence 
submitted by Brazil itself.39 Brazil is correct in pointing out that exhibit IDN -56 is not directly on 
point, as we state in paragraph 7.213. We added a similar comment in paragra ph 7.213 regarding 
exhibit IDN -64. However, while it is true that Indonesia has not submitted scientific papers that 
directly demonstrate the risk it refers to, it has nevertheless submitted evidence that refers to the 
existence of such a risk, including e xpert advice from a governmental source. That evidence is 
corroborated by Brazil's own scientific evidence. We consider that for purposes of proving the 
alleged risk under Article XX(b) of the GATT 1994, this evidence, taken together, is sufficient to 
support Indonesia's defence.40 Furthermore, we are of the view, similar to Indonesia, that Brazil's 
reading of EC – Hormones is misplaced. We read this jurisprudence to suggest that a Member may 
base its measure on scientifically sound evidence, regardless of w hether that evidence represents 
a mainstream scientific view or a divergent/minority view. Contrary to what Brazil implies, that 
jurisprudence in casu favours Indonesia, not Brazil, as it is Indonesia's measure that is at issue, 
not Brazil's. Thus, the Ing ham et al. research note, even if scientifically sound, cannot "nullify" (to 
use Brazil's words) the mainstream view that Indonesia relies on.  
6.18.   Brazil requests us to move the content of footnote 343  into the main text, in a new 
paragraph, right after paragr aph 7.226 . Indonesia does not comment on Brazil's request.  
6.19.   We reject Brazil's request as we consider that the issue discussed in footnote 343 was not 
sufficiently developed to properly fit in the necessity analysis. Inserting the text in the place 
indicate d by Brazil would, in our view, disrupt the flow of the analysis, thereby potentially 
                                                
37 See e.g. Indonesia's openin g statement at first meeting of the Panel, para. 66. See also para. 7.213  
below , where we address the relationship between these two issues.  
38 A panel, in that case, would have to indicate in its report that the argument was ma de but was not 
substantiated.  
39 See Appellate Body Report, Korea – Dairy Safeguards , para. 137.  
40 Whether it would have been sufficient for purposes of rebutting, for example, an Article 5.1. claim 
under the SPS Agreement, can be left open, as Brazil chose  not to pursue its SPS claims, see also fn 318 
below.  WT/DS484/R  
 
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  confusing the reader. We note that Brazil's right to take issue with what we state is not impacted 
by the placement of that statement either in a footnote or in the main text.  
6.20.   Brazil takes issue with, and, therefore proposes to delete, language in paragraph 7.230  
suggesting that Brazil did not elaborate on the less trade restrictive alternative measures that it 
proposed. Indonesia considers that Brazil's request is withou t merit, because Brazil has failed to 
develop its proposed less trade restrictive alternative measures. Therefore, Indonesia requests the 
Panel not to accept Brazil's suggestion and to retain the original wording in paragraph 7.230.  
6.21.   We made the changes pro posed by Brazil, but also deleted additional language from 
paragraph 7.230. We note that the paragraph in question contains a description of Brazil's 
arguments, whereas subsequent paragraphs contain our analysis of these arguments. Our view 
that Brazil has  not sufficiently described the alternative measures it proposed is set out in those 
paragraphs. To delete the corresponding language from paragraph 7.230, therefore, does not 
change or affect the assessment we made. We noted, however, that the description  in paragraph 
7.230 was inaccurate in that it referred to an argument that Brazil specifically made in the context 
of Article XX(d) rather than under Article XX(b). We have, therefore, deleted that argument.  
6.22.   Brazil requests specific changes to paragraph 7. 235 which reflect its disagreement with 
the Panel's understanding that Indonesia's primary concern is the thawing of frozen chicken in 
tropical temperatures. Indonesia requests the Panel not to accept Brazil's suggestion, because in 
its view, Indonesia's a rguments and evidence address more than the re -freezing of thawed meat 
alone.  
6.23.   We reject Brazil's request as we see no reason to change our understanding, as discussed 
above, that Indonesia's primary concern is the thawing of frozen chicken at tropical 
temperatures.41   
6.24.   Brazil's request in respect of paragraphs 7.236 and 7.237 is twofold. First, Brazil, 
referring to its previous comments regarding its arguments on less trade restrictive alternative 
measures, requests that the first sentence of paragraph 7.23 6 be deleted. Second Brazil requests 
that the Panel "revisit" this section of the report in respect of the cold storage requirement to 
better reflect Brazil's argument. Brazil submits that "contrary to what the Panel suggested, [it] 
never argued that [the cold storage] requirement would not be a less trade restrictive alternative 
to the intended use requirement". Furthermore Brazil states that "it was clear from the discussions 
and the evidence on the record that having or not a cold storage facility was no t an issue behind 
the intended use restriction". Finally, Brazil submits that "the reference to cold storage in relation 
to the intended use requirement was only introduced after the first meeting with the Panel, when 
Brazil had already submitted its argum ents…." Indonesia requests the Panel not to accept Brazil's 
suggestion, because in its view it is without merit. In particular, Indonesia considers that Brazil's 
assertion that the cold storage requirement was not related to the intended use requirement is  
incorrect. Indonesia further considers that it referred to the cold storage as part of the intended 
use requirement in its first written submission. Indonesia further refers to its comments to 
paragraph 7.230 -7.239, regarding the less trade restrictive al ternative measures proposed by 
Brazil.  
6.25.   We reject Brazil's request for the following reasons. First, we see no reason to change the 
first sentence in paragraph 7.236, which contains the conclusion of our analysis of the less trade 
restrictive measures prop osed by Brazil; which, as seen above, we found unnecessary to modify. 
Second, as regards the cold storage requirement, we cannot find in Brazil's submissions that Brazil 
considered the cold storage requirement a less trade restrictive alternative. Brazil m ay, as it 
claims, never have argued that the cold storage requirement would not be  a less trade restrictive 
alternative to the intended use requirement; however, it also never argued that it would be . At the 
same time, contrary to what Brazil contends, the  need for cold storage was referred to by 
Indonesia as early as in its first written submission.42 Brazil, thus, could have picked up on 
Indonesia's argument and pointed to cold storage as a less trade -restrictive alternative, but chose 
not to do so. To bet ter reflect our understanding of Brazil's arguments, we have slightly modified 
paragraph 7.236.  
                                                
41 See also para. 6.15 above.  
42 See Indonesia's first written submission, para. 191; opening statement at the first meeting of the 
Panel, paras.  64 and 66; and second written submission, paras. 138 -139. WT/DS484/R  
 
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  6.26.   Indonesia requests the Panel to delete the last two sentences of paragraph 7.238. 
Indonesia takes the view that there is a contradiction between rejecting Brazi l's proposed measure 
of "rules regulating the thawing of frozen chicken" and referring back to these same rules as 
possibly encompassing a cold storage requirement. Brazil disagrees with this request and submits 
that it never argued that the cold storage r equirement would not be a less trade restrictive 
alternative to the intended use requirement. Moreover, Brazil reiterates that it did not understand 
the concern with proper storage to be related to the intended use requirement.   
6.27.   We accept Indonesia's requ est and have, therefore, deleted the last two sentences of 
paragraph 7.238. We acknowledge that the prohibition to let frozen chicken meat thaw, which is 
implied in a cold storage requirement, may be considered the exact opposite of a rule on thawing, 
in which case, it would be contradictory to consider that rules on proper thawing could encompass 
a cold storage requirement.  
6.28.   Brazil requests the Panel to modify paragraph 7.256 to better reflect Brazil's argument 
regarding consumer information as a less trad e-restrictive alternative and to better explain why 
the Panel considered that it is not a less trade restrictive alternative. Indonesia requests the Panel 
not to accept Brazil's suggestion, which it considers to be without merit. Indonesia further 
consider s that Brazil's "alternative" does not address Indonesia's objective of protecting consumers 
from deceptive practices.  
6.29.   We accept Brazil's request and have made the relevant changes.  
6.30.   Brazil requests changes to paragraph 7.313. The suggested changes reflect its 
disagreement with the Panel's understanding that Indonesia's primary concern is the thawing of 
frozen chicken in tropical temperatures rather than re -freezing. Indonesia requests the Panel not 
to accept Brazil's suggestion, stressing that Indonesia's a rguments and evidence address both re -
freezing and thawing of meat.   
6.31.   We reject Brazil's request, because, as already indicated in paragraphs  6.15 and 6.23, we 
see no reason to change our understand ing that Indonesia's primary concern is the thawing of 
frozen chicken at tropical temperatures.  
6.32.   Brazil proposes specific changes to paragraph 7.317 and also requests the Panel to make 
further changes as appropriate. More specifically, Brazil considers that  it provided enough evidence 
to support that thawed chicken is safer than fresh chicken left on display outside. Brazil thus 
suggests specific changes to reflect this view. Furthermore, Brazil requests the Panel to explain 
why it considered that the eviden ce before it leads to find that there are differences in health risks 
arising from previously frozen thawing chicken and fresh chicken that could justify differences in 
treatment. Indonesia requests the Panel not to accept Brazil's request which in its vie w, is without 
merit. In particular, Indonesia considers that it has not disputed that freezing is used as a hazard -
based control measure; however, in Indonesia's view, this does not address the risks with which 
Indonesia is concerned.  
6.33.   We reject Brazil's r equest as we see no reason to change our assessment. Brazil's reference 
to Codex's guideline for the control of Campylobacter  in chicken meat (Codex CAC/GL 78 -2011) in 
its response to Panel question No. 90, does not address the health risks arising from or  relative to 
leaving fresh chicken displayed at outside temperatures. We therefore decline to amend this 
paragraph as suggested by Brazil.    
6.34.   Brazil requests the Panel to modify paragraphs 7.318 and 7.320  to better reflect Brazil's 
arguments on likeness of  thawed and fresh chicken. In this context, Brazil also refers to the 
Panel's analysis on consumer tastes in respect of the food safety issue and points out that 
Indonesia did not make any argument to this effect. Indonesia considers Brazil's request to be  
without merit and requests the Panel to reject it.  
6.35.   We made changes to paragraph 7.318 to accommodate Brazil's request.  WT/DS484/R  
 
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  6.6  Individual measure 5: Halal labelling requirements  
6.36.   Regarding paragraph 7.532 , Indonesia requests the Panel to make changes to better 
reflect Indonesia's arguments on why it conducts a holistic assessment of the exporters' 
compliance with sanitary requirements and halal requirements. Brazil opposes Indonesia's request 
and notes that regardless of Indonesia's right to adopt its own halal r equirements, it is settled that 
the verification of sanitary requirements comprises exclusively SPS -related matters.  
6.37.   We accept Indonesia's request and have changed paragraph 7.532 (paragraph 7.533  in the 
Report) accordingly.  Contrary to what Brazil seems to imply, we consider that Indonesia's request 
does not affect the outcome of the Panel's analysis; it rather clarifies the arguments raised by 
Indonesia addressed by the Panel.  
6.7  Individual measure 6: Transportation requirement  
6.38.   Regarding paragraph 7.598 , Brazil requests the Panel to include or make a specific 
reference in item (g) of section 8 (conclusions and recommendations) of the Interim Report to the 
Panel's understanding that the direct transportation requirement, as enshrined in Article 19(a) of 
MoA 34/2016 includes transhipment. Indonesia is of the view that it is not necessary for the Panel 
to refer to transhipment in its findings in item (g), because this finding refers specifically to the 
direct transportation requirement as challenged in Brazil's  panel request.  
6.39.   We see no need to reflect this finding in section eight (conclusions and recommendations) of 
the Report. As Brazil notes, the Panel's factual finding that the transportation requirement, as 
enshrined in Article 19(a) of MoA  34/2016, allows  for transit (including transhipment) is contained 
in paragraph 7.598 of the Interim Report (paragraph 7.599 of the Report). We observe that this 
finding is one of two intermediate findings that lead to the overall finding and conclusion contained 
in secti on 8. We are of the view that there is no need for section 8 to contain all the detailed and 
intermediate findings that we have made in the course of our examination, in particular those that 
have no bearing on implementation under Article 21.5 of the DSU.  Furthermore, in our view, the 
legal value of a finding made by the Panel is not defined by whether it is contained in section 
seven (findings) or section eight (conclusions and recommendations) of the Report.  
6.8  Claims relating to the alleged general prohib ition  
6.40.   Indonesia requests the Panel to add a sentence at the end of paragraph 7.620 , to reflect 
Brazil's characterization of the alleged general prohibition as "on -going conduct" of "general and 
systematic application", made during the first meeting. Indon esia refers to the Appellate Body's 
finding in Argentina – Import Measures  that the constituent elements that must be substantiated 
with evidence and arguments in order to prove the existence of a measure challenged will be 
informed by how such measure is described or characterized by the complainant. Brazil opposes 
Indonesia's request because it considers it to be misleading. Brazil notes that its reference to "on -
going conduct" or "general and prospective application" at the first meeting of the Panel ser ved 
only to highlight possible analytical tools available to the Panel in WTO case law so as to ascertain 
the existence of an unwritten measure.  
6.41.   We see no need to amend this paragraph as suggested by Indonesia. However, in light of 
the parties' comments, we have changed paragraph 7.620 (paragraph 7.621 in the Report) to 
better reflect Brazil's arguments. Brazil has described the content and scope of the alleged general 
prohibition in several sections of its submissions. Notably, in paragraph 172 of its fir st written 
submission, Brazil provided a description of the nature of the alleged general prohibition. In that 
description, Brazil did not refer to the measure being an "on -going conduct" of "general and 
systematic application". Indonesia refers to a state ment made by Brazil in response to questions 
posed by the Panel during the first substantive meeting. After the first meeting, the Panel sent 
written questions to both parties, which included questions similar to those formulated during the 
meeting. One su ch question is Panel question No.  5(c). As noted by Indonesia, in its response to 
this question, Brazil replied that characterizing the measure in a particular way does not change 
the nature of the measure itself or the evidentiary threshold necessary to d emonstrate its 
existence. This point is now also reflected in the summary of Brazil's arguments. We are cognizant 
of the Appellate Body's finding referred to by Indonesia, and specifically discuss its implications in 
section 7.10.4.3 of the Report.  WT/DS484/R  
 
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  6.42.   Indone sia requests the Panel to add a footnote to paragraph 7.656  to better reflect 
Indonesia's position that the delay in the approval of the veterinary health certificate is caused by 
the actions of Brazil's exporters. Brazil considers that request should be d isregarded by the Panel, 
because this paragraph does not deal with the question of attribution of any delays in the approval 
of veterinary health certificates, but rather with the question of attribution of the unwritten 
measure.  
6.43.   We accept Indonesia's req uest and have added footnote 848 to paragraph 7.656 
(paragraph  7.657 in the Report).  We acknowledge that Indonesia did raise an objection with 
respect to the attribution  of the delay in the approval of the veterinary certificate to Indonesia's 
authorities.  To the extent that Brazil included the undue delay as constituent measure of the 
alleged general prohibition, we consider Indonesia's argument to be pertinent in this section.  
6.44.   Regarding paragraphs 7.658 and 7.659:  Brazil requests the Panel to modify thos e 
paragraphs to better reflect Brazil's arguments. Brazil considers that the Panel failed to reflect 
Brazil's arguments on the trade effects of Indonesia's overarching measure. Brazil further notes 
that it has provided sufficient evidence of the causal lin k between the absence of chicken imports 
and the Indonesian legislation applicable to the imports of chicken meat and chicken products  
since 2009 (referring to Exhibits BRA -09, BRA -08, and BRA -10). Indonesia requests the Panel not 
to accept Brazil's reques t. Indonesia considers that Brazil's request is based on its erroneous 
assumptions and apparent misunderstanding of the Panel's reasoning. Moreover, Indonesia 
considers Brazil's request to modify these paragraphs to be imprecise.  
6.45.   We see no need to amend t hese paragraphs as suggested by Brazil. In section 7.10.3 of the 
Report, the Panel summarized Brazil's arguments, and referred to the relevant evidence submitted 
by Brazil in support of its claims against the alleged general prohibition. The paragraphs tha t Brazil 
refers to are part of section 7.10.4 (Panel's assessment) of the Report, where the Panel engages 
with each of the arguments that Brazil raised in support of the existence of the alleged general 
prohibition. Those two paragraphs address, specifical ly, whether the trade data submitted by Brazil 
proves the existence of the measure. To that extent, we consider that these paragraphs are not 
dealing with Brazil's arguments. They are rather setting out the Panel's assessment of the 
arguments that the Pane l summarised in an earlier section of the Report. Therefore, we see no 
need to modify the paragraphs mentioned by Brazil. Moreover, we consider that the additional 
arguments raised by Brazil in respect of the demonstration of the casual link between the absence 
of chicken imports and the Indonesian legislation applicable to the imports of chicken meat and 
chicken products  since 2009 are addressed in the remainder of section 10.4.  
6.46.   Regarding paragraphs 7.670 and 7.686:  Brazil requests the Panel to modify tho se 
paragraphs to better reflect Brazil's arguments. Brazil notes that it never suggested that as long as 
chicken meat and chicken products could not be imported into Indonesia the unwritten measure 
would be in place. Brazil emphasizes that it was rather co ncerned with the connection of the set of 
individual measures that operates together to ban imports of chicken from Brazil. Indonesia 
requests the Panel not to accept Brazil's request. As a preliminary matter, Indonesia considers that 
Brazil's request for review of these paragraphs is very unclear. Indonesia further considers that in 
light of Brazil's submissions throughout the proceedings the Panel did not mischaracterize Brazil's 
arguments.  
6.47.   We see no need to amend those paragraphs as suggested by Brazil.  In section 7.10.3.3, the 
Panel set out Brazil's arguments in respect of the distinction between the individual measures 
constituting the alleged general prohibition and the alleged general prohibition itself. On the basis 
of its understanding of those arg uments, the Panel developed its assessment in section 7.10.4. In 
the Panel's view, the manner in which the Panel formulated its understanding of Brazil's arguments 
for the purposes of its assessment, both in paragraphs 7.670 and 7.686, corresponds with the  
arguments that Brazil raised throughout its submissions in these proceedings.  
6.9  Conclusions and recommendations  
6.48.   Indonesia requests the Panel to include in its list of conclusions and recommendations its 
findings that the Panel has no jurisdiction to rule on Brazil's claims with respect to certain 
measures. Brazil does not comment on Indonesia's request.  WT/DS484/R  
 
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  6.49.   We see no need to accept Indonesia's request. Similarly to what we stated in paragraph 
6.39 above we consider that  it is not necessary to include every jurisdictional finding in the section 
on conclusions and recommendations of the Report.  
7  FINDINGS  
7.1.  Before turning to our review of Brazil's claims, as a preliminary matter, we first set out two 
rulings of interest which we made ea rly on in the proceedings.  
7.1  Preliminary matters  
7.1.1   Requests to join the Panel proceedings as third parties after the ten -day period  
7.2.  As described in section 1.2 above, Oman and Qatar requested to join these proceedi ngs as 
third parties over three months after the Panel was established (see paragraph 1.7 above). Neither 
Member provided an explanation for the timing of its request.  
7.3.  After consulting with the parties, the Pan el decided to accept the requests. The Panel's 
decision, as communicated to Oman and Qatar, as well as to the parties and the other 
third parties, is set out below:  
Oman and Qatar respectively addressed the DSB Chair on 28 April 2016 and 23 May 
2016, reque sting to participate as third parties in DS 484. The requests were made 
over 3 months after the Panel was established. Neither Member provided an 
explanation for the timing of its request. On 25  May 2016, the Panel consulted the 
parties. Brazil took the vi ew that neither request should be accepted. Indonesia had 
no objections to the requests.  
The Panel notes that Article 10 of the DSU is silent on when Members are to notify 
their interest in participating in a dispute as third party and recalls the Appella te 
Body's statement in EC - Hormones  that "the DSU leaves panels a margin of discretion 
to deal, always in accordance with due process, with specific situations that may arise 
in a particular case and that are not explicitly regulated".43  
In exercising its  discretion, the Panel has taken into account the following. First, the 
Panel recalls that, once a panel is established, the DSB Chair invites delegations 
wishing to reserve their third -party rights to raise their flags, after which the Chair 
reads out the  names of those Members who have indicated such interest. The Chair 
then states as follows:  
Those Members who have reserved their third -party rights by raising their 
flags do not need to send any confirmation in writing to the Secretariat. 
Other delegation s who may wish to reserve their third -party rights should 
do so through a written communication within the next 10  days after this 
meeting.  
This approach, which was developed in the GATT, has been followed for the more than 
230 panels established by the DS B since 1995.44 
Second, in 10 cases, so far, panels have accepted requests that were made beyond 
the 10 day period.45 In doing so, these panels considered whether accepting the 
                                                
43 (footnote  original) Appellate Body Report, EC – Hormones , fn 138 to para. 152.  
44 (footnote  original) See GATT Council Minutes 21 June 1994, C/M/273 and WT/DSB/M/101. The Panel 
also notes that in the ongoing DSU negotiations a proposal is under consideration to insert the 10 -day notice 
rule into the text of Article 10(2) of the DSU. See WTO Doc. TN/DS/25, page A -7; and TN/DS/27, para. 3.16.  
45 (footnote  original) In some of those disputes, the third -party notifications were made after panel 
establishment but before panel composition. See Panel Reports,  EC – Export Subsidies on Sugar , paras. 
2.1-2.4 and  Peru – Agricultural Products, fn 6 to para. 1.6. See also Secretariat Notes WT/DS431/7 in China – 
Rare Earths  and WT/DS267/15 in US –Upland Cotton . In other disputes, the third-party notifications were 
made after panel  composition. See Panel Reports Turkey  – Rice, paras. 6.1 -6-2; US – Shrimp (Thailand) , fn 4 
to para. 1.9;  EC – IT Products, paras. 1.9 an d 7.73 -7.75;  China – Electronic Payment Services , fn 7 to para. WT/DS484/R  
 
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  request would interfere with the panel's composition, and whether the proceedings  
would be hampered or due process rights affected. In those cases, requests for third 
party participation were either filed before or shortly after panel composition.46  
Third, the Panel notes that both Oman and Qatar are developing countries with very 
little experience in dispute settlement cases.  
The Panel notes that accepting Qatar's and Oman's requests would have no 
consequences for panel composition, as neither Member has a national on the Panel. 
Furthermore, the requests, while quite late in the procee dings still allow Qatar and 
Oman to participate in accordance with the  timetable adopted by the Panel, 
particularly the deadline for  third parties  submissions (17 June 2016) and the session 
of the Panel with the third parties (14 July 2016). Thus, acceptin g the requests does 
not affect the development of the proceedings.  
Finally, the Panel notes that Brazil indicated inter alia  that the requests should be 
denied because it had "already submitted its First Written Submission" and "considers 
that it would se em inadequate to permit new Third Parties at this stage". The Panel 
notes that Brazil did not allege or explain that participation by Qatar and Oman would 
affect its due process rights. Furthermore, Brazil neither asked for confidential 
treatment of the in formation it presented in its first written submission, nor did it 
indicate in any other way a need to limit third parties' access to such information. 
Accordingly, Brazil's first written submission was sent to the third parties without any 
restrictions. T he Panel further notes that Brazil will have an opportunity to comment 
on the views that may be submitted by Oman and Qatar as third parties. The Panel 
therefore does not consider that accepting the requests by Oman and Qatar would 
affect the due process r ights of the parties or third parties in these proceedings.   
On the basis of the above considerations, the Panel accepts Oman's and Qatar's 
requests for third -party participation. This acceptance is subject to maintaining the 
timetable adopted by the Panel  for the participation of third parties. The Panel is 
cognizant that, as Brazil points out, no request for third -party participation has ever 
been made as late as in these proceedings. Accepting these requests recognizes the 
limited experience of the reque sting Members but should not be taken as 
encouragement to other Members to disregard the long -standing norm of indicating 
third-party interest at the DSB meeting where the panel is established or within 10 
days thereafter.  
7.1.2   Preliminary ruling request by In donesia  
7.4.  As described in section 1.3.2 above, Indonesia presented along  with its first written 
submission, a request for a preliminary ruling concerning certain alleged defects in the panel 
request as well as all eged inconsistencies between the scope of the panel request and Brazil's first 
written submission. The Panel, on 19 July 2016, communicated its conclusions. This section 
describes Indonesia's request as well as the Panel's ruling.   
7.1.2.1   Indonesia's request  
7.5.   Indonesia requested the Panel to find that:  
a. The alleged general prohibition/overarching measure is not properly within the terms of 
reference of the Panel;  
b. Brazil's challenge to the import licensing regime "as a whole" is not properly within the 
terms of re ference of the Panel;  
                                                                                                                                                  
1.4; and  EC –Seal Products , fn 13 to para. 1.10. See also China – HP-SSST(EU) , note by the Secretariat on the 
constitution of the Panel, WT/DS460/5/Rev.1, para. 4.  
46 (footnote  original) The la test filing after composition hitherto was 15 days. See Panel Report, Turkey 
– Rice, paras. 6.1 -6.2. WT/DS484/R  
 
- 31 - 
 
  c. Brazil's claims with regard to other prepared or preserved chicken meat were not 
identified in the panel request and therefore are not within the terms of reference of the 
Panel; and  
d. Brazil is precluded from raising claims under Artic le 1 of the Agreement on Import 
Licensing Procedures.47 
7.6.  In its comments, Brazil requested the Panel to disregard the requests presented by 
Indonesia.48 
7.1.2.2   The Panel's conclusions and reasoning  
7.7.  In its communication of 19 July 2016, the Panel informed the parties  of its conclusions with 
respect to Indonesia's request for a preliminary ruling, namely that it:  
1. Finds that the alleged general prohibition/overarching measure is properly within 
the terms of reference of the Panel, and in particular, that (a) Brazil's  panel request 
provides a brief summary of the complaint sufficient to present the problem clearly, 
(b) the measure described in Brazil's first written submission is not altered to the 
point of falling outside the terms of reference of the Panel, and (c) t he alleged general 
prohibition is properly identified in Brazil's panel request.   
2. Finds that the panel request does not contain a challenge to the import licensing 
regime "as a whole", and such measure is therefore not within the terms of reference 
of the Panel.  
3. Finds that Brazil's claims with regard to other prepared or preserved chicken meat 
are identified in Brazil's panel request and are therefore within the terms of reference 
of the Panel.  
4. Takes note of Brazil's statement that it is not making  any claims under Article 1 of 
the Agreement on Import Licensing Procedures and therefore sees no need to rule 
that Brazil is precluded from making such claims.49 
7.8.  The Panel indicated in its communication that its reasoning in reaching these conclusions 
would be elaborated in this report. Accordingly, we now turn to set out those reasons. We will first 
refer to the legal standard governing a panel's terms of reference and then provide the reasoning 
for each of the conclusions.  
7.1.2.2.1   Legal standard applicable to a p anel's terms of reference  
7.9.  As noted by the Appellate Body , pursuant to Article 7.1 of the DSU, a panel's terms of 
reference are governed by the panel  request, unless the parties agree otherwise.50 The 
panel  request, thus, de limits  the scope of a panel's juri sdiction.51 
7.10.   Article 6.2 of the DSU, which governs the panel request, states:  
The request for the establishment of a panel shall be made in writing. It shall indicate 
whether consultations were held, identify the specific measures at issue and provide a 
brief summary of the legal basis of the complaint sufficient to present the problem 
clearly.  
7.11.   Article 6.2 contains two distinct requirements, namely (1) the identification of the specific 
measures at issue ; and (2) the provision of a brief summary of the legal basis of the complaint (or 
                                                
47 Indonesia's request for a preliminary ruling, para.  6.1. 
48 Brazil's response to Indonesia's request for a preliminary ruling, para. 52.  
49 (footnote  original) Brazil's response to Indonesia's request for a preliminary ruling, para. 51, 
confirmed also at the first substantive meeting of the parties.  
50 See e.g. Appellate Body Report s, US – Carbon Steel , para. 124 ; and Argentina – Import Measures , 
para. 5.11.  
51 See e.g. Appellate Body Reports, China – HP-SSST (Japan)  / China – HP-SSST (EU) , para. 5.12.  WT/DS484/R  
 
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  the claims) sufficient to present the problem clearly. Together these two elements comprise the 
"matter referred to the DSB", and form the basis of the panel's terms of reference under 
Article  7.1 of the DSU.52 Therefore, a measur e that has not been properly identified in the panel 
request is outside a panel's terms of reference. Similarly, a panel has no jurisdiction over claims 
that have not been briefly summarized in a manner sufficient to present the problem clearly.  
7.12.   As the App ellate Body found, by establishing and defining the jurisdiction of the panel, the 
panel request fulfils the due process objective of providing the respondent and third parties notice 
regarding the nature of the complainant's case so as to enable them to r espond accordingly.53 
7.13.   Furthermore, the Appellate Body summarized the manner in which a panel must determine 
whether a panel  request fulfils the requirements of Article  6.2: 
A panel request's compliance with the requirements of Article  6.2 of the DSU must be  
demonstrated on its face as it existed at the time of its filing. Consequently, any 
defects in the panel request cannot be "cured" by the subsequent submissions of the 
parties.54 Nevertheless, subsequent submissions, such as the complaining party's first 
written submission, may be consulted to the extent that they may confirm or clarify 
the meaning of the words used in the panel request.55,56 
7.14.   The parties generally agree on this legal standard. However, Brazil adds a further element. 
Based on the Appellate Bod y report in Korea – Dairy , Brazil argues that a party that alleges an 
impairment of its right of defence must provide evidence to support such impairment.57 Brazil 
submits in this regard, that Indonesia has failed to present any evidence relating  to the pre judice 
that it alleges to have  suffered.58  
7.15.   We note that Appellate Body statements in recent cases contradict Brazil's argument.  In EC 
and certain member States – Large Civil Aircraft , the Appellate Body emphasized that "th is due 
process objective is not co nstitutive of, but rather follows from, the proper establishment of a 
panel's jurisdiction ".59 In US – Countervailing and Anti -Dumping Measures (China) , the Appellate 
Body, referring back to this statement, explicitly ruled out the need for any demonstratio n that a 
respondent's ability to defend itself was effectively impaired:  
[A] determination of whether due process has been respected does not necessitate a 
separate examination of whether the parties suffered prejudice , considering that 
"[t]his due proces s objective is not constitutive of, but rather follows from, the proper 
establishment of a panel's jurisdiction."60,61 (emphasis added)  
7.16.   On the basis of the foregoing, we do not agree with Brazil that in our assessment of whether 
Brazil's panel request satisf ies the requirements of Article 6.2, we should examine whether 
Indonesia suffered prejudice in its ability to defend itself.  
                                                
52 See e.g.  Appellate Body Reports, Guatemala – Cement I , paras. 72 and 73; US – Carbon Steel , para. 
125; US – Continued Zeroing , para. 160; US – Zeroing (Japan)  (Article 21.5 – Japan) , para. 107; and Australia 
– Apples , para. 416.  
53 See e.g. Appellate Body Report, US – Countervailing and Anti -Dumping Measures (China) , para. 4.7  
(citing Appellate Body Reports, Brazil – Desiccated Coconut , p. 22, DSR 1997:I, p. 186 ; Chile – Price Band 
System , para. 164; and US – Continued Zeroing , para. 161).  
54 (footnote original) Appellate Body Report, US – Countervailing and Anti -Dumping Measures (China) , 
para. 4.9.  
55 (footnote original) Appellate Body Reports, US – Carbon Steel , para. 127; US – Countervailing and 
Anti-Dumping Measures (China) , para. 4.9.  
56 Appellate Body Reports, Argentina – Import Measures , para. 5.42 . See also Appellate Body Report s, 
China - HP-SSST (Japan)/ China - HP-SSST(EU) , para. 5.13 ; and  China – Raw Mater ials, para. 233.  
57 Brazil's response to Indonesia's request for a preliminary ruling, para. 10 (quoting Appellate Body 
Report, Korea – Dairy , para. 131).  
58 Brazil's response to Indonesia's request for a preliminary ruling, para. 11.  
59 Appellate Body Report , EC and certain member States – Large Civil Aircraft , para.  640. 
60 (footnote original) Appellate  Body Report, EC and certain member States – Large Civil Aircraft , 
para. 640. 
61 Appellate Body Report, US – Countervailing and Anti -Dumping Measures (China) , para. 4.7. See also 
Appellate Body Reports, China – Raw Materials , para. 233 . WT/DS484/R  
 
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  7.1.2.2.2   Whether the alleged general prohibition is within the Panel's terms of 
reference  
7.17.   We turn to examine the first issue identified by I ndonesia in its request for a preliminary 
ruling. Indonesia develops three lines of arguments to submit that the alleged general prohibition 
is not within the Panel's terms of reference. The first argument refers to Brazil's panel request not 
providing a b rief summary of the legal basis sufficient to present the problem clearly. The second 
argument pertains to a discrepancy between the measure described in Brazil's panel request and 
in Brazil's first written submission. The third argument pertains to the pa nel request not referring 
to the objective linking together the seven measures that constitute the general prohibition, thus 
affecting its proper identification. We turn to discuss each of these arguments.  
7.1.2.2.2.1   Whether the panel request contains a brief summary  of the legal basis of the 
complaint sufficient to present the problem clearly  
7.18.   Indonesia's first argument, concerns the description of the claims in respect of the alleged 
general prohibition, as set out in Brazil's panel request. Indonesia takes issue wit h the fact that 
Brazil refers to seven separate measures, contained in at least six legal instruments, allegedly 
breaching 15 WTO legal provisions. Indonesia considers that in doing so, Brazil does no more than 
repeat the text of these legal provisions wit hout connecting them to the specific measures and the 
specific legal instruments at issue.62 Brazil considers that the general prohibition is described as 
independent from its components63, and that the panel request list s the WTO provisions with which 
the general prohibition is considered to be inconsistent.64  
7.19.   We note that the summary of the legal basis of the complaint aims to explain succinctly how 
or why the challenged measure is considered to be violating the WTO obligations in question.65 The 
Appellate B ody found that:  
[I]n order to "present the problem clearly", a panel request must "plainly connect" the 
challenged measure(s) with the provision(s) claimed to have been infringed such that 
a respondent can "know what case it has to answer, and ... begin pr eparing its 
defence".66,67 
7.20.   We will examine Brazil's panel request following the Appellate Body's guidance, to 
determine whether it provides a brief summary of the legal basis of the complaint sufficient to 
present the problem clearly.  
7.21.   Brazil's panel request starts with an introduction indicating the procedural history of the 
dispute and summarizing the measures at issue.68 Under heading I, it then describes the general 
prohibition, including its seven constitutive elements, and lists the underlying legal instr uments, 
and the articles of the covered agreements that the general prohibition is allegedly inconsistent 
with.69 Under heading II, there are different sections, which describe the specific restrictions and 
prohibitions on the importation of chicken meat an d chicken products, and list their underlying 
legal instruments as well as the articles of the covered agreements that each measure is allegedly 
inconsistent with.70 
7.22.   We understand Indonesia's main concern to be the lack of sufficient clarity on which aspect s 
of the general prohibition are inconsistent with which articles of the covered agreements listed by 
Brazil, including a brief indication of how and why.71 We agree with Indonesia that Brazil's panel 
request could have been structured in a clearer manner. However, in our view it does not fall short 
                                                
62 Indonesia's request for a preliminary ruling, para s. 1.14 -1.16. 
63 Brazil's response to Indonesia's request for a preliminary ruling, para. 16.  
64 Brazil's response to Indonesia's  request for a preliminary ruling, para. 2 2. 
65 Appellate Body Report, US – Countervailing Measures (China) , para. 4.9.  
66 (footnote original) Appellate  Body Report, US – Oil Country Tubular Goods Sunset Reviews , para.  162 
(quoting Appellate  Body Report, Thailand – H-Beams , para.  88). 
67 Appellate Body Report, US – Countervailing and Anti -Dumping Measures (China) , para. 4.8.  
68 Brazil's panel request, p. 1.  
69 Brazil's panel request, pp. 1 -3. 
70 Brazil's panel request, pp. 3 -9. 
71 Indonesia's request for a prelimi nary ruling, para. 1.28.  WT/DS484/R  
 
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  of the requirement to provide a brief summary of the legal basis of the complaint sufficient to 
present the problem clearly for the following reasons.  
7.23.   First, in the introductory paragraph of the section addressi ng the alleged general 
prohibition, Brazil's panel request describes this measure as follows: "Indonesia imposes several 
prohibitions or restrictions on the importation of chicken meat and chicken products which, 
combined, have the effect of a general proh ibition on the importations of these products". We 
consider this language to clearly indicate that the challenge is against one measure, not seven 
separate ones.  
7.24.   Second, we note that the last part of the section of Brazil's panel request concerning the 
alleged general prohibition begins with the following introductory clause: "Brazil considers that the 
general import prohibition described above  is inconsistent with Indonesia's obligations under the 
following provisions" (emphasis added).72 Brazil then lists several articles of the covered 
agreements and briefly explains why "these measures", generally referring to the alleged general 
prohibition, are inconsistent with each of the respective articles. In our view, the degree of detail 
provided in this section meets the minimum required under Article 6.2, because it includes a list of 
the articles of the covered agreements that the measure is considered to be inconsistent with, and 
briefly indicates why the challenged measure is inconsistent with them.73 
7.25.   Third, i n our view, the second part of Brazil's panel request, describing the specific 
restrictions and prohibitions also challenged by Brazil, serves as context in understanding what the 
problem is. Four of the constitutive elements of the general prohibition are  also challenged as 
individual restrictions.74 In the sections that relate to each of those elements, the panel request 
provides an explanation of why each measure is inconsistent with certain provisions of the covered 
agreements. Thus,  this further clarifi es how certain elements of the general prohibition relate to 
each of the 15 WTO provisions allegedly breached by this measure.75 
7.26.   Fourth, Indonesia argues that the situation that we are confronted with is similar to that 
examined by the Appellate Body in China – Raw Materials .76 In that case, the Appellate Body found 
that the complainants' panel requests did not present the problem clearly. This is, because the 
relevant section of the complainants' panel requests (section III) referred generically to "Addition al 
Restraints Imposed on Exportation" and raised multiple problems relative to different obligations 
arising under several provisions of the GATT  1994, China's Accession Protocol, and China's 
Working Party Report. The Appellate Body observed that neither " the titles of the measures nor 
the narrative paragraphs reveal the different groups of measures that are alleged to act 
collectively to cause each of the various violations, or whether certain of the measures is 
considered to act alone in causing a violati on of one or more of the obligations ".77 In our view, the 
fact pattern in the present case differs from that addressed by the Appellate Body in China – Raw 
Materials . Brazil's panel request does not refer to several measures independently and then list a 
number of WTO provisions without briefly explaining why it considers that the challenged measure 
is inconsistent with them. Rather, Brazil's panel request describes only one measure and briefly 
indicates why this measure is inconsistent with each of the rele vant WTO provisions.  
7.27.   Fifth, in our view, the amount of detail that Indonesia considers necessary would require 
Brazil to develop arguments in addition to setting out the claims. Indeed, Indonesia seems to 
expect Brazil's panel request to describe the prec ise and specific manner in which each of the 
constitutive elements of the general prohibition, not the measure itself, are inconsistent with the 
relevant articles of the covered agreements. The Appellate Body has been clear in acknowledging 
that Article 6. 2 requires that the claims  – not the arguments  – be set out in a panel request in a 
way that is sufficient to present the problem clearly.78 In our view, accepting Indonesia's 
arguments would require us to blur this distinction.  
                                                
72 Brazil's panel request, p. 3.  
73 Brazil's panel request, p. 3. See Appellate Body Report, US – Countervailing and Anti -Dumping 
Measures (China) , para. 4.8 . 
74 See para . 2.5 above . 
75 In this respect, see also Indonesia's request for a preliminary ruling, para. 1.26.  
76 Indonesia's request for a preliminary ruling, para s. 1.18 -1.19. 
77 Appellate Body Reports, China – Raw Materials , para. 230.  
78 Appellate Body Report, EC – Selected Customs Mat ters, para. 153.  WT/DS484/R  
 
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  7.28.   On the basis of the foregoin g, we consider that Brazil's panel request satisfies the minimum 
standard set out in Article 6.2. This is, the panel request lists the specific articles of the covered 
agreements that it claims are breached by the general prohibition, and it plainly connec ts, albeit in 
a general manner, the aspects of the general prohibition that it considers to be inconsistent with 
the relevant article of the covered agreements.  
7.1.2.2.2.2   Whether the measure has been properly identified  
7.29.   As indicated above, Indonesia makes the follo wing two arguments in connection with the 
proper identification of the general prohibition. First, Indonesia takes issue with the fact that the 
panel request lists seven elements of the alleged general prohibition, whereas the first written 
submission list s only six.79 Second, Indonesia argues that to properly identify the alleged general 
prohibition, Brazil should have included in its panel request a description of the policy objective 
pursued by such measure.80 Brazil considers that Article 6.2 does not req uire a panel request to 
describe the policy objective of an unwritten measure.81 Brazil also argues that not referring in its 
first written submission to one of the components of the general prohibition mentioned in the 
panel request does not alter the natu re of this measure, and that it is its prerogative to better 
formulate and develop its claims, respecting the panel's terms of reference.82 
7.30.   We note that both of these arguments relate to the proper identification of the measure, 
albeit in differing ways. An  assessment of whether a panel request has sufficiently identified a 
specific measure has to be done on a case -by-case basis.83 The Appellate Body has observed that 
a panel should undertake this assessment: (a) on an objective basis, and (b) considering the  
particular context in which the measures exist and operate.84 The Appellate Body has also noted 
that "the measures at issue must be identified with sufficient precision so that what is referred to 
adjudication by a panel may be discerned from the panel req uest".85 
7.31.   In the specific context of identifying an unwritten measure, the Appellate Body has made a 
clear distinction between the standard required for the proper identification  of an unwritten 
measure and the demonstration of its existence .86 While the form er is a matter of Article  6.2 of the 
DSU – at issue here – the latter is a substantive question to be addressed with the merits of the 
case. The Appellate Body stated in particular, that, "the identification of a measure within the 
meaning of Article 6.2 n eed be framed only with sufficient particularity so as to indicate the nature 
of the measure and the gist of what is at issue ".87 Consequently, we understand that there is no 
requirement for perfect identity between what is described in the panel request an d what is 
described in the submission, as long as the "nature and gist of the measure" remains the same.  
7.32.   Turning to the first argument, Indonesia essentially argues that the measure described in 
the first written submission is not the one identified in the  Panel request and is, therefore outside 
the Panel's terms of reference.88  
7.33.   As we understand it, the "nature and gist of the measure" as described in the panel request 
is that it is an unwritten measure that cons ists of a number of individual measures, whic h allegedly 
operate together in such a way as to result in a general prohibition. Thus, the unwritten measure 
constitutes the framework for a number of different measures.   
7.34.   At this general level of identifying the "nature and gist" of the measure, we consi der that 
the alleged general prohibition is not significantly altered just because there is one less 
constitutive element in its description. It is still a measure that allegedly constitutes the framework 
for a number of different measures. Whether the six  elements make up the unwritten measure or 
whether other allegedly equally trade -restrictive measures – possibly including the seventh 
                                                
79 Indonesia's request for a preliminary ruling, para s. 1.29 -1.30. 
80 Indonesia's request for a preliminary ruling, paras. 1.37 -1.38; and opening statement at the first 
meeting of the Panel, paras. 15 -18. 
81 Brazil's response to Indonesia's r equest for a preliminary ruling, paras. 42 -44. 
82 Brazil's response to Indonesia's request for a preliminary ruling, para s. 36 and 39.  
83 Appellate Body Report, US – Countervailing and Anti -Dumping Measures (China) , para. 4. 9. 
84 Appellate Body Report, US – Countervailing and Anti -Dumping Measures (China) , para. 4. 9. 
85 Appellate Body Report, US – Continued Zeroing , para. 168.  
86 Appellate Body Report, US – Continued Zeroing , para. 169.  
87 Appellate Body Report, US – Continued Zeroing , para. 169 (emphasis added).  
88 Indonesia's request for a preliminary ruling, para s. 1.29 -1.30. WT/DS484/R  
 
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  measure described in the panel request – are or are not part of that unwritten measure, is a 
question of demonstrating th e existence of the alleged general prohibition, but not of its proper 
identification. For the purposes of the latter, the Panel considers that the measure as described in 
Brazil's first written submission is within the Panel's terms of reference.  
7.35.   Turning t o the second argument, we understand Indonesia to allege a deficiency in Brazil's 
panel request, insofar as it does not describe the objective of the alleged unwritten measure. As 
seen above, in our view, Brazil's panel request is clear in providing the el ements necessary to 
discern the measure.89  
7.36.   In our assessment, whether there is an objective that links the different elements of the 
general prohibition together is a question of demonstrating the existence of the measure.90 Thus, 
contrary to what Indonesia  argues91, we do not consider that to properly identify the alleged 
general prohibition, Brazil necessarily had to  include a description of the objective of the measure 
in the panel request. We will address this issue when we assess, on the merits, whether Brazil has 
established a prima facie  case that the general prohibition is a measure attributable to Indonesia, 
and that it is contrary to a number of WTO provisions. We therefore conclude  that Brazil was under 
no obligation to describe the objective of the  alleged general prohibition in its panel request to 
satisfy the requirements of Article 6.2 of the DSU.92 
7.37.   On the basis of the foregoing, the Panel finds that the alleged general 
prohibition/overarching measure is properly within the terms of reference of t he Panel, and in 
particular, that (a) Brazil's panel request provides a brief summary of the complaint sufficient to 
present the problem clearly, (b) the measure described in Brazil's first written submission is not 
altered to the point of falling outside the terms of reference of the Panel, and (c) the alleged 
general prohibition is properly identified in Brazil's panel request.  
7.1.2.2.3   Whether Brazil's panel request properly identified Indonesia's import licensing 
regime "as a whole"  
7.38.   Indonesia argues that Brazil' s challenge to Indonesia's import licensing regime as a whole is 
not within the Panel's terms of reference.93 In particular, Indonesia submits that Brazil's panel 
request, when addressing Indonesia's import licensing regime refers to a limited number of 
aspects of Indonesia's import licensing regime94, and that it is only in its first written submission 
that Brazil challenges Indonesia's import licensing regime as a whole.95 Brazil rejects Indonesia's 
arguments, and submits that it has properly identified in i ts panel request the challenged measure 
as Indonesia's import licensing regime, as a whole. Brazil submits that when read as a whole, and 
on the basis of the language used, it is clear that Brazil's panel request was not referring to 
specific provisions of  Indonesia's licensing procedures, but to the import licensing regime as a 
whole.96 
7.39.   As indicated above, a measure at issue must be identified with sufficient precision so that 
what is referred to adjudication by a panel may be discerned from the panel reque st.97 Previous 
panels confronted with claims against a regime as a whole, found that such a measure was at 
issue because the relevant panel request clearly indicated that to be the case.98 We thus consider 
                                                
89 We note that Indonesia referred to the explicit inclusion of the policy objective in the 
European  Union's panel request in Argentina – Import Measures , as indication of the deficiencies i n Brazil's 
panel request (Indonesia's opening statement at the first meeting of the Panel , paras. 17 -18). The fact that the 
European Union included such description in its panel request does not mean that Article 6.2 requires the 
policy objective of an unw ritten measure to be included in a panel request.  
90 See the European Union's third -party submission, para. 58.  See also section 7.10.4.2.4  below.  
91 Indonesia's request for a preliminary ruling, para s. 1.37 -1.40. 
92 In this re spect, s ee also United States' third -party submission, paras. 97 -98. 
93 Indonesia's request for a preliminary ruling, para. 5.6.  
94 Indonesia's opening statement at the first meeting of the Panel, para. 21.  
95 Indonesia's request for a preliminary ruling, par a. 5.2 . 
96 Brazil's response to Indonesia's request for a preliminary ruling, paras. 47 -48. 
97 Appellate Body Report, US – Continued Zeroing , para. 168.  
98 See Appellate Body Report, EC – Selected Customs Matters , paras. 1 65-172 (finding that the 
United  State s' panel request presented with sufficient clarity, as required by Article  6.2 of the DSU, that the 
claim made under Article  X:3(a) concerned the European Communities' system of customs administration as a 
whole or overall); and Panel Report, Indonesia – Import Licensing Regimes , paras. 2.49 (regarding Indonesia's WT/DS484/R  
 
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  that for a panel request to properly challenge a reg ime as a whole, it should clearly indicate that  
the whole regime is a measure at issue.  
7.40.   We do not find such a clear indication in Brazil's panel request. In section II.v of its panel 
request, Brazil addresses "Restrictions on the importation of chicken mea t and chicken products 
through Indonesia's Licensing Regime". In that section, Brazil, in describing Indonesia's licensing 
regime, neither uses the expression "as a whole" nor describes issues in a way that suggests that 
the regime as a whole is the cause of nullification and impairment. Instead, Brazil refers to specific 
aspects of Indonesia's licensing regime and describes those as trade -restrictive.99 In addition, 
Brazil challenges a number of import licensing conditions as individual measures elsewhere i n the 
panel request. A plain reading of the panel request, therefore, suggests that Indonesia's import 
licensing regime as a whole is not a measure that Brazil challenges, but rather,  that it challenges  
specific aspects of the import licensing regime.  
7.41.   We see the above reading confirmed in Brazil's own submissions. In its submissions,  Brazil 
listed a limited number of specific aspects of Indonesia's import licensing regime that it is 
challenging.100 
7.42.   On this basis, we find that Brazil's panel request does not c ontain a challenge to the import 
licensing regime "as a whole", and that this measure is therefore not within the Panel's terms of 
reference.  
7.1.2.2.4   Whether Brazil's claim s with regard to the import prohibition on other 
prepared or preserved chicken meat are  within the Panel's terms of reference  
7.43.   The panel request describes a specific import prohibition on certain chicken products in a 
number of places. Indonesia argues that the Panel should decline to rule on that import prohibition 
to the extent it covers other p repared or preserved chicken meat.101 Indonesia submits that in its 
panel request, Brazil only  challenged the prohibition on the importation of fresh, chilled or frozen 
poultry cuts and offal (HS subheadings 020713 and 020714), but did not challenge the proh ibition 
on the importation of prepared or preserved chicken meat (HS heading 1602).102 According to 
Indonesia, Brazil's identification of the challenged measure as the prohibition on the importation of 
chicken cuts prevents Brazil from including additional p roducts under the scope of that measure.103 
Brazil argues that it has identified in its panel request the products at issue, including prepared or 
preserved chicken  meat (HS subheading 1602.32). Brazil considers this category of products is 
therefore within the Panel's terms of reference.104 
7.44.   In our view, Indonesia's arguments go to the manner in which Brazil's panel request 
identified the measure at issue, and how such identification affects the product coverage of the 
measure at issue. Article 6.2 of the DSU d oes not refer to the identification of the products at 
issue; rather, it refers to the identification of the measures at issue. A number of cases have 
addressed the question of whether it is necessary to identify the products at issue in the panel 
request.  Previous panels and the Appellate Body have concluded that with respect to certain WTO 
obligations (e.g. related to tariff classification), the identification of the products to which the 
specific measures at issue apply may be necessary to identify the p roducts subject to the measure 
                                                                                                                                                  
import licensing regime for horticultural products) and 2.64 (regarding Indonesia's import licensing regime for 
animals and animal products).  
99 Brazil's panel request, pp. 7 -8. 
100 Brazil's first wr itten submission, paras. 200 and 228; Brazil's response to Panel question No. 15 ; and 
Brazil's second written submission, para. 104.  
101 Indonesia's request for a preliminary ruling, para. 1.48.  
102 Indonesia's request for a preliminary ruling, para. 1.43.  
103 Indonesia's request for a preliminary ruling, para s. 1.46 -1.47. 
104 Brazil's response to Indonesia's request for a preliminary ruling, paras.  49-50.   WT/DS484/R  
 
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  in dispute.105 Moreover, the Appellate Body has noted that in certain circumstances, the scope of 
the products identified in a panel request may limit the scope of a panel's terms of reference.106 
7.45.   In the introductory paragraph of  the panel request, Brazil refers to the products at issue as 
"meat from fowls of the species Gallus domesticus  and products from fowls of the species 
Gallus  domesticus  hereinafter referred to as chicken meat and chicken products".107 A footnote to 
the above  quoted sentence in the panel request, provides that the products concerned in the 
present dispute are referred to by the following HS codes " (i) 0207.11 (whole chicken, not cut into 
parts, fresh or chilled); (ii) 0207.12 (whole chicken, not cut into parts , frozen); (iii) 0207.13 
(chicken cuts and offal, fresh or chilled); (iv) 0207.14 (chicken cuts and offal, frozen) and; 
(v) 1602.32 (chicken meat, other leftover meat and blood that has been processed or 
preserved) ".108 Thus, as Brazil rightly points out, it s panel request includes a general reference to 
the products at issue, which includes an explicit reference to prepared  or preserved chicken meat.  
7.46.   Brazil's panel request then provides three different descriptions of the specific prohibition on 
the importat ion of certain products. First, when referring to the elements of the alleged general 
prohibition:  
Indonesia does not allow the importation of animal and animal products not listed in 
the appendices of the relevant regulations109. With regard to chicken, the  list only 
contemplates HS codes referred to as whole chicken, fresh or chilled and frozen110. 
The HS codes for chicken meat cut into pieces111 are not described in any of the 
"positive lists" which contain the products that can be imported into Indonesia's 
territory;112,113 
7.47.   The second description of the measure features in sections II.i (measures that do not 
conform to nor are based on international standards) and II.ii (measures that are more trade 
restrictive than required to achieve its appropriate level of pro tection). In both these sections the 
specific import prohibition on certain chicken products  is described as:  
Prohibition on the importation of chicken cuts, as the relevant regulations only allow 
the whole chicken, fresh or chilled and frozen.114 The HS co des for chicken meat cut 
into pieces115 are not described in any of the "positive lists" which contain the 
products that can be imported into Indonesia's territory;116 
7.48.   The third description of the measure features in Section II.iv (measures that discriminate 
against imported chicken meat and chicken products):  
                                                
105 Appellate Body Report, EC – Computer Equipment , para. 67. See also Appellate Body Report, EC – 
Chicken Cut s, para. 167. The following panels have addressed the issue of whether it is necessary to identify 
the products at issue in the panel request: Panel Reports: Korea – Alcoholic Beverages , paras. 10.14 -10.16; 
US – FSC, paras. 7.23 and 7.29; EC – IT Products , paras. 7.194 -7.197; and US – Clove Cigarettes, paras. 
7.137 -7.142. See also para. 2.17 of Annex A to the Panel Report, Russia – Tariff Treatment . 
106 Appellate Body Report, Australia – Salmon , paras. 102 -103 (where the Appellate Body concluded 
that the prod ucts at issue in that dispute were limited to "fresh, chilled or frozen salmon").  
107 Brazil's panel request, p. 1.  
108 Brazil's panel request, p. 1.  We note that Brazil refers to heading HS 1602 in its panel request. In the 
World Customs Organization Harmoniz ed System, this particular heading refers to "Other prepared or 
preserved meat, meat offal or blood". We thus understand Brazil, where it refers to " processed or preserved" 
meat, to mean " prepared or preserved" meat. We thus use the words "processed" and " prepared" 
interchangeably in this report.  
109 (footnote original) The products  allowed to be imported by Indonesia are currently listed in the 
Appendix I and II of MoA Regulation 139/2014 and the Appendix II of MoT Regulation 46/2013.  
110 (footnote original) H S Codes 020711 and 020712.  
111 (footnote original) HS Codes 020713 and 020714.  
112 (footnote original) Furthermore, the HS code for processed chicken products is not described in the 
"positive list" of MoA Regulation 139/2014.  
113 Brazil's panel request, p. 2.  
114 (footnote original) HS Codes 020711 and 020712.  
115 (footnote original) HS Codes 020713 and 020714.  
116 Brazil's panel request, pp. 4 -5. WT/DS484/R  
 
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  Indonesia prohibits the importation of chicken meat cut into pieces117 while 
domestically produced chicken cuts are largely traded in its domestic market;118 
7.49.   We recall that a panel must examine a panel reques t as a whole and on the basis of the 
context in which the measure at issue exists and operates. A panel may seek confirmation or 
clarification of the meaning of the panel request in subsequent submissions.119 
7.50.   The first description above is focused on the  existence of a  "positive list", while the second 
and third descriptions are focused on the absence of chicken cuts from that list. Furthermore, the 
first description contains a reference to prepared or  preserved chicken in a footnote, while the 
second and thi rd do not. Notwithstanding these apparent differences, by reading Brazil's panel 
request as a whole, it is clear to us that all of the above -enumerated descriptions focus on the 
same measure. That measure is the requirement for certain products to be liste d in the relevant 
appendices of Indonesia's regulations governing the importation of animal products, for their 
importation to be permitted.  We consider that our  conclusion is further reinforced by the manner 
in which Brazil formulated its arguments in res pect of its claims against this measure  as well by 
Brazil's answers during the first substantive meeting to the Panel's question on what is the 
measure at issue.120 Finally, we do not see Indonesia contest that there is only one measure 
despite the various, differing descriptions.121 
7.51.   Thus, the product coverage within the Panel's terms of reference must be construed on the 
basis of that one challenged measure, in reading the panel request as a whole. As seen above, 
while not in every description, Brazil's panel request does contain one description that refers to 
chicken cuts and prepared or  preserved  chicken meat as being excluded from the list. The panel 
request indicates this to be the case in at least one relevant regulation. In addition, the panel 
request gen erally defines the product scope as including that product. Read as a whole, therefore, 
we consider that Brazil's claims with respect to the positive list requirement do not exclude 
prepared or  preserved  chicken meat from the Panel's terms of reference.  
7.52.   Furthermore, the Appellate Body in EC – Selected Customs Matters  found that the 
arguments included in a panel request "should not be interpreted to narrow the scope of the 
measures or the claims ".122 In our view, this logic also applies to situations where th e description 
of the measure varies slightly throughout different sections of a panel request. Accordingly, we 
consider that the references to chicken cuts in the second part of Brazil's panel request should not 
be read in such a manner as to narrow down t he scope of the positive list.  
7.53.   Based on the foregoing, we find that Brazil's claims with regard to other prepared or 
preserved chicken meat  are identified in Brazil's panel request and are therefore within the terms 
of reference  of the Panel . 
7.1.2.2.5   Whether claim s raised by Brazil under Article 1 of the Import Licensing 
Agreement are within the Panel's terms of reference  
7.54.   Indonesia submits that if Brazil were raising a separate claim under Article 1 of the Import 
Licensing Agreement, it would be outside the Panel's  terms of reference.123 Brazil observes that "it 
did not make any claim under Article 1" of the Import Licensing Agreement. Brazil clarifies that its 
references to Article 1 in its first written submission are for the purposes of contextualization.124 
                                                
117 (footnote original) According to the "positive lists" established by the Appendices of MoA Regulation 
139/2014 and MoT R egulation 46/2013.  
118 Brazil's panel request, p. 6.  
119 Appellate Body Reports, China - HP-SSST (Japan)/ China - HP-SSST(EU) , para. 5.13; and Argentina 
– Import Measures , para s. 5.40. and 5.42. 
120 Brazil's first written submission, paras. 77 -79. In this panel report, in line with what the parties have 
done we refer to this measure as the "positive list requirement" ; see also section 7.4 below . 
121 See Indonesia's request for a preliminary ruling, paras. 1.43 -1.44 and 1.48; and opening  statement 
at the first meeting of the Panel, paras. 19 -20. 
122 Appellate Body Report, EC – Selected Customs Matters , para. 153.  
123 Indonesia's request for a preliminary ruling, paras. 1.49 -1.52. 
124 Brazil's response to Indonesia's request for a preliminary ru ling, para. 51, confirmed also at the first 
meeting of the Panel . WT/DS484/R  
 
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  7.55.   The Pane l takes note of Brazil's statement that it is not making any claims under Article 1 of 
the Import Licensing Agreement and therefore does not see a need to rule on this issue.  
7.56.   This concludes our section on preliminary matters. We now turn to our review of B razil's 
claims.  
7.2  Panel's order of analysis  
7.2.1   General  
7.57.   We recall that as a general principle panels are free to structure their order of analysis in 
the way they consider most appropriate  as long as the structure of the analysis adopted accords  
with their manda te and functions under the DSU.125 In deciding on how to proceed to examine the 
matter referred to us, we need to decide on the sequence of our analysis as it relates to three 
elements of the case: ( a) the order of analysis between claims brought  against a g eneral 
prohibition and claims against individual measures some of which are part of the general 
prohibition; ( b) the order of analysis for a plurality of claims when they all refer to the same 
aspect of a measure; and ( c) the sequence for the analysis of m easures in force at the time of 
establishment of the panel and as subsequently  amended  to the extent that they are covered by 
the Panel's terms of reference.  
7.2.2   Order of analysis in respect of claims against the general prohibi tion and against 
individual meas ures 
7.58.   Concerning the sequence of analysis in respect of the  claims against the alleged  general 
prohibition as a single unwritten measure and claims against individual measures, we note that 
Brazil as  a complainant presented its submissions addressing first the alleged general 
prohibition.126 Brazil has not indicated any particular reason for the manner in which it has 
structured its claims . Considering however that Brazil has characterized the general prohibition as 
a "single unwritten measure"  comp osed of a number of individual measures , we will proceed first 
with a review of the claims against each of the individual measures  before addressing the general 
prohibition . This sequence allows us to have an understanding of the content and operation of 
each of the measures individually , which is useful when assessing how the individual measures 
may interact to  form a single unwritten measure  as claimed by Brazil .  
7.2.3   Order of analysis of claims  
7.2.3.1   Introduction  
7.59.   Brazil has raised claims under Article XI:1 of the GATT 1994 and Article 4.2 of the 
Agreement on Agriculture , Article III:4 of the GATT 1994, and Article 3.2 of the Import Licensing 
Agreement. Indonesia submits that for all the measures for which Brazil made claims of a breach 
of Article 4.2 of the Agreement on Agri culture  and A rticle XI  of the GATT 1994 , Article 4.2 of the 
Agreement on Agriculture  applies to the exclusion of Article XI:1  of the GATT 1994.127 In addition, 
Indonesia submits that Articles III:4 and XI:1  of the GATT 1994  are mutually exclusive and cannot 
be applied to the same aspect of a measure.128 Finally, Indonesia considers that some of the  
measures challenged are not import licencing procedures and thus the Import Licencing 
Agreement  is not applicable.129 In this section, we address the first of these ch allenges, i.e. the 
relation between Article 4.2 of the Agreement on Agriculture  and Article XI:1 of the GATT 1994. 
We limit our analysis in this section to that challenge because it touches upon five of the seven 
measures. As the remaining two challenges c oncern only one measure each, we address them in 
the relevant sections concerning these measures.   
                                                
125 See e.g. Appellate Body Report, Colombia – Textiles , para. 5.20 . 
126 Brazil's first written submission, paras. 73 -76. 
127 Indonesia's first written submission, paras. 65 -74. 
128 Indonesia's firs t written submission, para. 81.  
129 Indonesia's first written submission, para. 76.  WT/DS484/R  
 
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  7.2.3.2   Whether Article XI of the GATT 1994 and Article 4.2 of the Agreement on 
Agriculture are mutually exclusive  
7.60.   Indonesia argues that there is a conflict between  Article 4.2 of the Agreement on Agriculture  
and Article XI of the GATT 1994 which pursuant to Article 21.1 of the Agreement on Agriculture , 
must lead to the exclusion of Article XI of the GATT 1994.130 The conflict, according to Indonesia, 
arises from the d ifference in the allocation of the burden of proof in respect of a defence under 
Article XX of the GATT 1994 for , on the one hand,  a violation of a GATT provision (e.g. of Article 
XI), and , on the other hand,  a measure subject to Article 4.2 of the Agreeme nt on Agriculture . 
Indonesia submits that under Article 4.2, a complaining party has the burden of demonstrating 
that the challenged measures are not maintained under Article XX of the GATT 1994. Indonesia 
contrasts this with the general rule applicable in  respect of a defence under Article XX in  the 
context of a claim under Article XI of the GATT 1994, namely that the burden of proof is on the 
responding party.131 In Indonesia's view, Article  21.1 of the Agreement on Agriculture , thus, would 
apply as a confl ict rule with the effect that Article 4.2 of the Agreement on Agriculture  would 
prevail over, and, therefore, exclude the application of Article XI of the GATT 1994.  
7.61.   In Brazil's view132, which is shared by the third parties that have commented on this 
issue133, there is no conflict between the two provisions.  
7.62.   In deciding whether Article 4.2 of the Agreement on Agriculture  applies to the exclusion of 
Article XI of the GATT 1994 by virtue of Article 21.1 of the Agreement on Agriculture  we will be 
guided by an an alysis of the text of each provision and the principle of harmonious treaty 
interpretation.134  
7.63.   Article 21.1 of the Agriculture Agreement states:  
The provisions of GATT 1994 and of other Multilateral Trade Agreements in Annex 1A 
to the WTO Agreement shall ap ply subject to the provisions of this Agreement.  
7.64.   We agree with Indonesia that Article 21.1 of the Agreement on Agriculture is a conflict rule 
similar to that set out in the General Interpretative Note to Annex 1A.135 Therefore, if there were a 
conflict betwe en Article 4.2 of the Agreement on Agriculture and Article  XI of the GATT 1994, 
Article 4.2 would indeed prevail and Article XI would not apply.  
7.65.   We note that  Indonesia's argument that there is a conflict is premised on what it considers 
as a difference in the allocation of the burden of proof in Article 4.2 of the Agreement on 
Agriculture  and in Article XX as a defence to  a claim under Article XI of the GATT  1994.  
7.66.   We therefore, turn to the question whether the burden of proof in respect of Article XX  of 
the GATT 1994  is reversed in Article 4.2  of the Agreement on Agriculture . 
7.67.   The question of whether the burden of proof in respect of a possible justification under 
Article  XX of the GATT 1994 is reversed under Article 4.2 of the Agreement on Agriculture , goes  to 
the meaning of the footnote to the latter provision, which states:  
                                                
130 Indonesia's first written submission, paras. 65 -74. 
131 Indonesia's first written submission, paras. 67 -74; and second written submission, paras.  80-86. 
132 Brazil's opening st atement at the first meeting of the Panel, paras. 32 -37; and second written 
submission, paras. 15 -21. 
133 Argentina's third -party statement, paras. 15 -19; Australia's third -party statement, para.  11; 
Australia's third -party response to Panel question No. 6; European Union's third -party written submission, 
paras.  22-29; European Union's third -party statement, paras. 10 -11; European Union's third -party response to 
Panel question No. 6; Japan's third -party statement, paras. 3 -6; Japan's third -party response to P anel question 
No. 6; New Zealand's third party submission, paras. 63 -71; New Zealand's third -party statement, paras. 8 -9; 
New Zealand's third -party response to Panel question No. 6; Norway's third -party statement, paras. 2 -3; 
Norway's third -party response to Panel question No. 6; United States' third party submission, paras. 11 -15; 
and United States' third -party response to Panel question No. 6.  
134 See Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 570  (citing 
Appellate Bod y Report,  US – Upland Cotton , paras. 549 -550). 
135 See Appellate Body Report, EC – Export Subsidies on Sugar, para. 221. See also Indonesia's first 
written submission, para. 67 . WT/DS484/R  
 
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  These measures include quantitative import restrictions, variable import levies, 
minimum import prices, discretionary import licensing, non -tariff measures 
maintained through state -trading enterprises, voluntary export restraints, and similar 
border measures other than ordinary customs duties, whether or not the measures 
are maintained under country -specific derogations from the provisions of GATT 1947, 
but not  measures maintained under balance -of-payments provisions or under other 
general, non -agriculture -specific provisions of GATT 1994 or of the other Multilateral 
Trade Agreements in Annex 1A to the WTO Agreement.  (emphasis added)   
7.68.   As is uncontested by the parties, the second part of t he footnote ("but…") limits the scope of 
Article 4.2  of the Agreement on Agriculture .136 Thus, Article 4.2 does not apply if a measure is 
listed in the first part of the footnote, and  also fulfils the conditions of the second part of the 
footnote.137 It is fur thermore, uncontested by the parties that Article XX  of the GATT 1994  is one 
of the "other general non -agriculture specific provisions of GATT 1994" referred to in the second 
part of the footnote.138 Thus, if a measure is justified by Article XX  of the GATT 1994, Article 4.2 of 
the Agreement on Agriculture  will not apply. This view is in accordance with relevant case law as 
well as supported by the negotiating history of Article 4.2  of the Agreement on Agriculture .139  
7.69.   Indonesia's argument that the burden of pr oof in respect of Article XX is different to that in 
footnote 1 to Article 4.2  of the Agreement on Agriculture  is essentially based on the logic that a 
complaining party must prove all the elements of its claim under Article 4.2  of the Agreement on 
Agricul ture. Since the question of a justification under Article XX  of the GATT 1994  is part of 
determining the scope of Article 4.2 of the Agreement on Agriculture  (through the reference in the 
second part of the footnote), in Indonesia's view, the complainant a ccordingly must prove that the 
measure at issue is not justified under any of the general, non -agriculture -specific provisions of 
the GATT 1994, including Article XX. According to Indonesia, it is the manner in which footnote 1 
to Article 4.2 is structured , that alters the allocation of the burden of proving that a measure is 
justified through a general non -agriculture exception.140 
7.70.   In assessing whether the burden of proof is reversed in Article 4.2  of the Agreement on 
Agriculture , we consider the following.  
7.71.   First, in WTO dispute settlement, the burden of proof in respect of a  defence under 
Article  XX of the GATT 1994 is on the responding party.141  
7.72.   Second, in the context of the footnote to Article 4.2, Article XX is part of the applicability 
and scope of Artic le 4.2, as opposed to providing for exceptions to a potential violation of that 
provision.142 In the same context, however, Article XX  of the GATT 1994 , still provides for 
exceptions, albeit not to violations of Article  4.2 of the Agreement on Agriculture  itself, but of 
GATT provisions, in respect of which, measures are "maintained under".   
7.73.   Third, there are certain provisions in the covered agreements that carve out specific  
measures from their scope.143 An example is Article XI:2 of the GATT 1994, which provid es that 
                                                
136 See Indonesia's first written submission, para. 70; and Brazil's opening state ment at the first 
meeting of the Panel, para. 37; and second written submission, para. 21.  
137 See e.g. Panel Report, Indonesia - Import Licensing Regimes , para. 7.33 . 
138 See Indonesia's first written submission, para. 70; and Brazil's second written submissi on, para.  21. 
139 Panel Report, Chile – Price Band System , para. 7.68. Regarding the negotiating history, starting at 
the end of 1991, certain delegations proposed that this provision should not apply to measures justified under 
Articles XII, XVIII, XIX, XX and XXI of GATT 1947. This proposal became the basis for the current language. It 
indicates that the language was intended to exclude certain measures from the obligation of converting them 
into ordinary customs duties, rather than modifying the burden of proof with respect to such exceptional  
measures. See e.g. MTN.TNC/W/89/Add.1 , MTN.GNG/AG/W/6 , MTN.GNG/AG/W/7 , MTN.GNG/AG/W/8, 
MTN.GNG/AG/W/9 , MTN.GNG/MA/W/24 , MTN.TNC/W/122 . See also Press Release (NUR/080) . 
140 Indonesia's first written submission, paras. 6 9-73. 
141 See e.g. Appellate Body Reports, US – Gasoline, pp. 22 -23, DSR 1996:I, 3 at 21; US – Wool, Shirts 
and Blouses , pp. 15 -16, DSR 1997:I, 323 at 337; Korea – Various Measures on Beef , para. 157; EC – Tariff 
Preferences , para. 104; and  Thailand - Cigare ttes (Philippines) , para. 176.  
142 In fact, contrary to the examples that Indonesia provides from the TRIMs Agreement or the Trade 
Facilitation Agreement (Indonesia's opening statement at the first meeting of the Panel , para. 32.), Footnote 1 
to Article 4.2 does not create a "general rule -exception relationship" for the Agreement  on Agriculture.  
143 In Canada – Renewable Energy/ Canada – Feed-in-Tariff Program , when  assessing Article III:8(a) of 
the GATT 1994 (which derogates from the national treatment princip le contained in Article III by exempting WT/DS484/R  
 
- 43 - 
 
  the prohibition on quantitative restrictions in Article XI:1 does not extend to certain  measures 
listed in Article  XI:2; which means that Article XI:2 limits the scope of the obligation contained in 
Article  XI:1.144 A party invoking Article XI:2 bear s the burden of proving that the conditions set out 
in the provision are met.145 A further example is the Enabling Clause, which allows developed 
country Members to grant developing Members special and differential treatment without violating 
the most -favour ed nation (MFN) principle. The Enabling Clause constitutes an exception, which 
rather than justifying a violation of the MFN principle, leads to its non -application.146 Consequently, 
based on the general rule of the allocation of the burden of proof147, a resp ondent raising a 
justification under this provision has the burden of proving it.148 These examples demonstrate that 
even where provisions operate explicitly as a "carve out" to another provision rather than as 
justification of a violation of that provision,  the burden of proof may still fall on the responding 
party as the one benefitting from such "carve out".  
7.74.   Fourth, Indonesia submits that there "are many examples of provisions in the covered 
agreements that convert exceptions under Article XX of the GATT 1 994 into positive obligations, 
thereby shifting the burden of proof to the complainant".149 In our view this argument is 
misplaced . The second part of f ootnote 1 to Article 4.2  of the Agreement on Agriculture , contrary 
to the examples provided by Indonesia, does not create "positive obligations " that require a 
complaining party to prove a violation.  
7.75.   Based on the foregoing, we consider that the underlying premise of Indonesia's argument, 
that there is a reversal of burden of proof in respect of Article XX in Article 4.2, is incorrect. We 
therefore, leave open  the question of whether the alleged  difference in the allocation of burden of 
proof would have amount ed to a conflict  within the meaning of  Article 21.1 . Since Article 21.1 does 
not apply,  Article 4.2  of the Agreement on Agriculture  does not exclu de the application of Article XI  
of the GATT 1994.  
7.76.   Having established that the two provisions are not mutually exclusive, we need to decide on 
the sequence of analysis of the two claims. We note Indonesia's argume nt that Article 4.2 of the 
Agreement on Agriculture  is lex specialis  because the goods at issue in this dispute are agricultural 
goods.150 We are not convinced that the scope of goods covered by a claim, in and of itself, 
decides over whether an agreement is  more specific than another. As some third parties have 
pointed out, in terms of nature of substantive obligation violated (i.e. quantitative restriction), 
Article XI could be considered more specific than Article 4.2.151 In addition, we note t he prominent 
role that Article  XX plays in Indonesia's defence . Consequently , we consider appropriate to first 
assess Brazil's claims under Article XI:1, and then review Indonesia's defences under Article XX, 
before turning to Brazil's claims under Article 4.2  of the Agreement on Agriculture .  
                                                                                                                                                  
certain measures from its scope), the Appellate Body surmised "the characterization of the provision as a 
derogation does not pre -determine the question as to which party bears the burden of proof with regard to the  
requirements stipulated in the provision." Appellate Body Reports, Canada – Renewable Energy/ Canada – 
Feed-in-Tariff Program , para. 5.56 . See also Appellate Body Report, India – Solar Cells , para. 5.18 (where the 
Appellate Body confirms that Article III: 8(a) sets out a derogation from the national treatment obligation 
contained in Article III of the GATT 1994).  
144 See Appellate Body Reports, China – Raw Materials , para. 334.  
145 See Panel Report, China – Raw Materials , paras. 7.209 -7.213 (where the panel rej ected an argument 
raised by China indicating that the complainants had the burden to demonstrate that the conditions in 
Article  XI:2(a) did not apply). This view was implicitly endorsed by the Appellate Body . See Appellate Body 
Reports, China – Raw Materia ls, para. 344.  
146 Appellate Body Report, EC – Tariff Preferences , para. 102.  
147 This rule provides that "the burden of proof rests upon the party, whether complaining or defending, 
who asserts the affirmative of a particular claim or defence." Appellate Body  Report, US – Wool Shirts, and 
Blouses , pp. 14, DSR 1997:I, 323 at 335.  
148 Note that the Appellate Body, because of the special role of the Enabling Clause, took the view that 
the complaining party had to identify the provisions of the Enabling Clause with which the measure is allegedly 
inconsistent, whereas the respondent has to establish  the facts necessary to support the consistency of the 
challenged measure with the relevant provisions of the Enabling Clause. Appellate Body Report, EC – Tariff 
Preference s, paras. 105 -115. 
149 Indonesia's opening statement at the first meeting of the Panel, para. 34 (referring to Article 2.2 of 
the TBT Agreement, Article 5.6 of the SPS Agreement, and Article 11.6(b) of the Agreement on Trade 
Facilitation).  
150 Indonesia's firs t written submission, para. 66 . See also Indonesia's first written submission, para. 
178. 
151 United States' third -party submission, para. 13; New Zealand's third -party submission, para. 66.  WT/DS484/R  
 
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  7.2.4   Order of analysis of amended measures  
7.2.4.1   Introduction  
7.77.   In section 2.2 above , we noted that the legal instruments underlying  some of the  measures 
at issue were either revoked or revoked and replaced after the establishment of the Panel . The two 
main legal instruments underlying these measures changed twice over the course of the 
proceedings.152 The second set was adopted shortly after the establish ment of the Panel and 
before  the first submission  was due .153 The third set was adopted after the end of the period 
foreseen for answers to questions by the Panel following the first meeting of the Panel with the 
parties.154  
7.78.   Based on the changes enacted through the third set of legal instruments , Indonesia takes 
the view that  three of the challenged  measures that existed under the first set of legal instruments 
have expired .155 Brazil contests  the expiry claimed by Indonesia and presents  arguments in 
support of its claims in respect of relevant provisions in the third set of legal instruments.156   
7.79.   In response  to a question from the Panel, Brazil explained that it requests the Panel "to 
make findings on the measures originally identified by Brazil at the time of establishment of the 
Panel" as well as "to make specific and additional findings on the measur es identified in its panel 
request, in light of the amendments brought to the Indonesian regulatory framework, to the 
extent that they affect the original measures."157      
7.80.   Indonesia, for its part, submits that while the Panel may make findings on expired 
measures, it cannot make any recommendation  in their respect . Furthermore, as regards the 
review of measures as enacted through the new legal instruments, Indonesia submits that the 
Panel does not have jurisdiction to review them if they are not in essence the same as the 
measure set out in the panel request.158 According to Indonesia, where measures have expired, 
the essence has necessarily changed, with the consequence that relevant provisions in the new 
legal instruments are outside the Panel's terms of ref erence.159 While contesting the Panel's 
authority to review their WTO consistency, Indonesia does not contest that the Panel may take 
subsequent legislative changes into account as evidence.160 
7.2.4.2   Jurisdiction  with respect to the measures as enacted through the l egal 
instruments adopted after the panel establishment    
7.81.   We first address the issue of jurisdiction , cognizant that we can only rule on Brazil's claims  
of WTO inconsistency  in respect of measures that are covered by our ter ms of reference. In 
addressing th is issue, we are mindful of the difference between the measures at issue and the 
legal instruments embodying those measures.161   
7.82.   In deciding whether the measures as incorporated in the  second and  third set of legal 
instruments are covered by our terms of re ference , we recall that p ursuant to Article 7.1 of the 
DSU, a panel's terms of reference are governed by the panel  request, unless the parties agree 
                                                
152 See Table 1 above in section 2.2. As no ted in fn  31, with respect to the MoT Regulations, MoT 
46/2013 was replaced by MoT  05/2016, which was subsequently amended by MoT 37/2016 . The amended 
version of MoT 05/2016  was replaced by MoT 59/2016. For ease of reference, the Panel treats the sequence of 
changes to MoT 05/2016 through MoT 37/2016 and MoT 59/2016 as one change.  
153 MoA 58/2015 of 25  November 2015 entered into force on 7 December 2015; MoT 05/2016 of 
28 January 2016 entered into force as of the promulgation dat e. 
154 MoA 34/2016 of 15  July 2016 entered into force on 19 July 2016; MoT 59/2016 of 15 August 2016 
entered into force on 16 August 2016. As noted  in fn 31, MoT 59/2016 consolidated MoT 05/2016 and MoT 
37/2016. See also fn 144 above.  
155 The three measures are as follows: (1) positive list requirement; (2) intended use requirement; (3) 
the application and validity periods (licensing requirements).   
156 See e.g. Brazil's response to Panel question No. 6 6(a). 
157 Brazil's response to Panel question No.66(a) . 
158 Indonesia's response to Panel question No s. 66a and No. 149.  
159 Indonesia's response to Panel question No. 149.  
160 Indonesia's response to Panel question No. 66(a).  
161 Panel Report, Argentina – Footwear , paras. 8.40 and 8.41; see also Appellate Body Report, US – 
Upland Cotton , paras.262 and 270.  WT/DS484/R  
 
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  otherwise.162 The panel request, thus, de limits  the scope of a panel's jurisdiction.163 In accordance 
with Article 6.2 , the matter  referred to a panel by the DSU  comprises the specific measure 
identified  in the panel request and the legal basis of the complaint.  
7.83.   We note that, Brazil as complaining party considers that the measures as incorporated in 
the third set of legal instruments continue to affect its rights under the same covered agreements 
as the measures included in the panel request. The claims developed in the second submission and 
during the second meeting with the Panel elaborate on the claims made in t he first written 
submission.164 
7.84.   To decide on whether we have  jurisdiction  on the measure s as incorporated in the second 
and third sets of legal instruments , we will first examine Brazil's panel request, to determine 
whether its terms are broad enough to cove r these legal changes. We then assess the relationship 
between the legal instruments identified in Brazil's panel request and the subsequent legal 
instruments . Lastly, we analyse the text contained in the r elevant provisions of the  subsequent 
legal instrum ents and determine how they affect the measures in light of Brazil’s panel request. I n 
this regard, in  line with the Appellate  Body's ruling in Chile – Price Band System , we consider that 
we only have jurisdiction over such subsequent changes, if and to th e extent that, the measures at 
issue, as enacted through the relevant legal instr uments,  remain in essence  the same  as those 
identified in the panel request .165  
7.85.   Regarding the panel request, we note that Brazil's panel request contains a description of 
the challenged measures followed by an identification of the legal instruments through which each  
measure  was enacted and an indication that the measure includes also "any amendments, 
replacements, related measures, or implementing measures ". Thus, Brazil’s pan el request is broad 
enough to cover such changes.  
7.86.   Regarding  the relationship between the different sets of legal instruments, we note that the 
second set revokes and replaces the first set ; the second set  is in turn, revoked and replaced by 
the third.166 They have identical scope and subject matter and follow the same structure. The 
three MoA regulations concern "the Importation of Carcass, meat and/or processed product thereof 
into the territory of the Republic of Indonesia".167 Likewise, the three MoT regula tions concern 
"export and import provisions on animal and animal products".168 Thus, the subsequent legal 
instruments are replacements of the preceding legal instruments.  
7.87.    Regarding the essence test, as noted above, it requires an analysis of the text contai ned in 
the relevant provisions in each subsequent legal instrument  with a view to  determin ing how they 
affect the measures in light of Brazil’s panel request . We will carry out this analysis and make a 
final determination on jurisdiction on a case -by-case basis, as we proceed with the review of the 
concerned measures in the relevant sections of this report.  
7.2.4.3   Scope and sequence of the Panel's analysis   
7.88.   Having set out our views on the relevant test for jurisdiction, we now turn to the question  as 
to which set s of legal instruments to evaluate and in what sequence. In deciding this question we 
are mindful of the objectives  of achieving prompt settlement of disputes and securing a positive 
solution to disputes encapsulated in Articles 3.3 and 3.4 of the DSU, as well as  the importance of 
due process. Regarding the latter, we note that both parties have generally assured us that they 
                                                
162 See e.g., Appellate Body Reports, Argentina – Import Measures , para. 5.11.  
163 Appellate Body Reports, China – HP-SSST (Japan)  / China – HP-SSST (EU) , para. 5.12.  
164 See e.g. Brazil's second written submission, para. 82; opening statement at the second meeting of 
the Panel, paras. 15 and 18; and response to Panel question No. 103.  
165 Appellate Body Report, Chile – Price Band System , paras.135 -139. See also Appellate Body Reports, 
EC – Chicken Cuts , paras. 156 -161; EC – Selected Customs Matters , para. 4.4; US – Zeroing , Art. 21.5 (EC) , 
paras . 190-191 and 383; and China – Raw Materials , fn 524 to para. 262.  
166 Each legal instrument contains a provision that upon entry in to force, that regulation revokes and 
declares null and void the previous regulation. See Article 40 of MoA 58/2015; Article 40 of Mo A34/2016; 
Article 37 of MoT 05/2016; and Article 36 of MoT 59/2016.  
167 See title page of MoA 139/2914 (Exhibit BRA -34); MoA 58/2015 (Exhibit BRA -01/IDN -24); and MoA 
34/2016 (Exhibit BRA -48/IDN -93). 
168 See title page of MoT 46/2013 (Exhibit BRA -42); MoT 05/2016 (Exhibit BRA -03); and MoT 59/2016 
(Exhibit IDN -109). WT/DS484/R  
 
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  have had enough opportunities to set out their arguments and submit the necessary supporting 
evidence to present their claims and def ences.169  
7.89.   As noted above, Brazil requests us "to make findings on the measures originally identified 
by Brazil at the time of establishment of the Panel" as well as "to make specific and additional 
findings on the measures identified in its panel request , in light of the amendments brought to the 
Indonesian regulatory framework, to the extent that they affect the original measures" .170 Brazil 
has made arguments with respect to the measure s as enacted through the second and third set of 
legal instruments , but d id not make arguments in respect of the first set of legal instruments. T his 
suggests that Brazil considers it possible and reasonable, in order to secure a positive solution to 
this dispute, to commence with the second set of legal instruments.  
7.90.   Taking int o account the above , we have decided as follows: Subject to the Panel having 
jurisdiction, w e will start with a review of the measures as enacted by the second set of legal 
instruments . We will make findings on these measures before addressing the issue, w here 
relevant, of whether they have expired as argued by Indonesia. We agree with Indonesia's reading 
of the relevant case law that the expiry of a measure would not prevent us from making findings 
on that measure.171 In light of Brazil's request in this res pect, w e consider that such findings are 
necessary to secure a positive solution to the dispute and for this reason, we review all measures 
and make findings irrespective of whether they have expired.    
7.91.   Where Indonesia has so argued, we will examine the i ssue of expiry. We observe that the 
concept of "expiry" of a measure has had limited development in the case law so far.172 We infer 
from the relevant jurisprudence  that a measure has expired if it has ceased to exist.173 We note , 
however,  that in the cases de cided so far , the measures at issue were terminated without  the 
underlying legal instrument being replaced by a new one.174 In contrast, we are confronted with a 
situation where the legal instruments underlying the challenged measures have been replaced  by 
new legal instruments . Mindful of the difference between measures and the legal instruments 
enacting them, we do not exclude that a measure may cease to exist even where a new legal 
instrument has replaced a preceding one. We will, therefore, review, on a c ase by case basis, as 
we examine the relevant measures, whether they have indeed ceased to exist. In this 
examination, we take into account as evidence relevant changes to the measures, as enacted 
through the third set of legal instruments.175    
7.92.   We agree wi th Indonesia that the expiry of a measure, while not preventing a panel  from 
making findings, may have a bearing on whether a panel can make a recommendation .176 In US – 
Certain EC Products  the Appellate Body found that the panel erred in making a recommenda tion in 
respect of a measure that was no longer in existence .177 In subsequent cases, the Appellate Body 
provided guidance on specific situations where a panel may make a recommendation despite the 
                                                
169 Parties' response to Panel question No. 66(b). We note Indonesia' s reservations in respect of certain 
aspects of one measure, namely t he intended use requirement , and discuss them  in the  relevant  section 
concerning this measure.  
170 Brazil's response to Panel question No.66(a) . 
171 See Appellate Body Reports, China – Raw Ma terials , para. 263 referring to Panel Reports, US – Wool 
Shirts and Blouses , para. 6.2; Indonesia – Autos , para. 14.9; Chile – Price Band System , para. 7.126; 
Dominican Republic – Import and Sale of Cigarettes , para. 7.344; and EC – Approval and Marketing of Biotech 
Products , paras. 7.1303 -7.1312. See also Appellate Body Report, US – Upland Cotton , para. 272, fn 214.  
172 See Appellate Body Reports, US – Certain EC Products , para. 81; US – Upland Cotton, paras. 
272-273; China – Raw Materials , paras. 264 -265; a nd Panel Report, US – Poultry , para. 7.51.  
173 See, in particular, Appellate Body Report, US – Upland Cotton , para. 272.  
174 See fn 162 above.    
175 See Panel Reports, China – Raw Materials , para. 7.25 citing China – Publications  and Audiovisual 
Products , para. 177; China - Auto Parts , para. 225; US - Section 211 Appropriations Act , para. 105; India - 
Patents (US), paras. 65. See also Appellate Body Report, EC – Selected Customs Matters , para. 188.  
176 See Appellate Body Reports, US – Upland Cotton , paras. 272 -273; and China – Raw Materials , paras. 
264-265. We note that in a number of other cases the expiry of the measure was contested. In those cases, 
the panels refrained from making a finding on whether the measure had expired and instead adopted a 
recommendation that was qualified such that it would not apply if and to the extent the measure had expired. 
See Panel Reports, EC – Biotech , para. 8.16; and Thailand – Cigarettes (Philippines) , para. 8.8. See also Panel 
Report, EC – Comm ercial Vessels , para. 8.4; and Appellate Body Report, Dominican Republic – Import and Sale 
of Cigarettes , para. 129 . 
177 Appellate Body Report, US – Certain EC Products , para. 81.  WT/DS484/R  
 
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  expiry of a measure.178 Such specific situations concern subsi dies or measures that are annually 
adopted within a framework of measures. We are of the view that none of the measures at issue 
fall withi n these specific situations. Acc ordingly, if we find that a measure has expired, we will not 
make a recommendation.   
7.93.   In addition to reviewing the measures as enacted through the second set of legal 
instruments, we will , jurisdiction permitting, review Brazil's claims with respect to the measures as 
enacted  through the  third set of legal instruments, where Brazil has mad e arguments to this effect  
and where we have found that the measure has not expired .  
7.94.   As a final remark, we observe, that the rapid succession of legislative changes has created a 
few challenges in these proceedings.179 As noted above, t he parties have gener ally assured us that 
they have had enough opportunities to set out their arguments and submit the necessary 
supporting evidence to present their claims and defences.180 Nevertheless, we have been mindful 
of the particular importance of safeguarding due proce ss under these unusual circumstances. At 
the same time, the same unusual circumstances have compelled us to exercise some flexibility in 
examining the parties' arguments, given their constant evolution in the course of the proceedings.  
7.3  Background on the me asures at issue  
7.95.   Having provided explanations regarding the order of our analysis, we now turn to providing 
some explanations regarding the factual context of this dispute. Our description in this section is 
brief. More detailed descriptions of the relevant  legal instruments as well as of specific factual 
aspects follow in the relevant sections on each measure.    
7.96.   As noted above, this dispute concerns a number of measures affecting the importation of 
chicken  meat and chicken  products into Indonesia. To impor t such products into Indonesia, an 
importer has to apply for and obtain an import recommendation from the Minister  of Agriculture 
(MoA Import Recommendation) and an import approval from the Minister  of Trade (MoT Import 
Approval). The former is a necessary  step in obtaining the latter. The relevant MoA  and MoT 
regulations set out the procedural and substantive requirements for obtaining an MoA Import 
Recommendation and an MoT  Import Approval. It is these two regulations that have been revoked 
and replaced t wice over the course of the proceedings as discussed in section 7.2.4  above .  
7.97.   Importers can only apply for an MoA Import Recommendation if the exporting country has 
been approved in advance as a "country of origin". Similarly, the relevant business unit in the 
exporting country is required to be pre -approved before an application for an MoA Import 
Recommendation can be made. The country of origin approval serves to verify animal health 
conditions for the relevant product in the exporting country. The business unit approval serves to 
verify the animal health, food safety and halal slaughtering conditions at the relevant business 
units in the country of origin.181 
7.98.   In addition to having country of origin approval and business unit app roval, importers must 
produce a number of other documents when applying for an MoA Import Recommendation.  
7.99.   The chart below provides an overview of the basic features of Indonesia's import licensing 
regime. We provide further details along with additional ch arts in the relevant sections of this 
report.  
 
                                                
178 Appellate Body Reports, US – Upland Cotton, paras. 272 -273 and China – Raw M aterials , paras. 264 -
265. 
179 We note Brazil's reference to a "moving target", Brazil's opening statement at the second meeting of 
the Panel,  para. 3.  
180 See fn 160 above . 
181 We note that in the relevant laws and regulations, this  step is referred to as "country of origin and 
business unit stipulation". For ease of reference, we refer to this as "approval", which we understand to have 
the same legal meaning as "stipulation".  WT/DS484/R  
 
- 48 - 
 
  Figure 1 Overview of Indo nesia's import licensing regime  
 
 
7.100.   As is uncontested by Indonesia, there have been virtually no imports of chicken cuts  (since 
2006) and whole chicken (since 2009) into Indonesia , including from Brazil.182 
7.101.   Furthermore, as is undisputed between the parties, a feature of Indonesia's chicken 
market is that most of the chicken meat consumed in Indonesia is sold in the traditional markets 
(also called "wet markets").183 Moreover, most of the chicken meat sold in these markets is from 
freshly slaughtered chickens. All chicken meat, whether imported into or produced in Indonesia, 
must be halal.  
7.102.   We now turn to assess Brazil's claims in respect of the six individual measures  Brazil has 
described in its first written submission.  
7.4  Individual measure 1: Positive list requirement  
7.4.1   Introduction  
7.103.   The first measure concerns provisions in the relevant MoA and MoT regulations governing 
the importation of meat, which prescribe the type of  carcass for which an importer may obtain an 
MoA Import Recommendation and an MoT Import Approval. Chicken cuts and other chicken 
products cannot be the subject either of an MoA Import Recommendation or an MoT Import 
Approval, because they are not listed i n the relevant appendices184 of the respective regulations.185 
As noted in section 2.1 above , Brazil, in its panel request, has described this measure as an import 
                                                
182 See Brazil's first written submission, paras. 23, refer ring to Table 2; 204; and 234; and Brazil's 
second written submission, paras. 126 and 147. See also Indonesia's response to Panel question No. 9, which 
refers to TradeMap import statistics from 2004 -2015 for HS Codes 0207.11, 0207.12, 0207.13, 0207.14 as 
well as 1602.32 (Exhibit IDN -89). The data provided by Brazil in Table 2 of its first written submission is 
corroborated by Exhibit IDN -89. Indonesia explains further that imports of chicken from 1988 to 2008 as 
reflected on the tables were on account of a partial exemption that was made for imports destined for the 
Batam Industrial Area Indonesia, pursuant to MoA Decree 229/1988.  See Indonesia's response to Panel 
question No. 9.  
183 See Brazil's first written submission, paras. 224 and 289, where Brazil asser ts that around 70% of 
Indonesian chicken meat and chicken products in Indonesia are sold in traditional or wet markets. See also 
Indonesia's first written submission, paras. 135, 159 and 326, where Indonesia submits that 80 to 85% of 
chicken meat is sold i n traditional or wet markets.  
184 We use the term "appendix" to refer to the section of the relevant legal instrument that contains the 
list of products that are allowed to be imported into Indonesia. For the purposes of this report, "appendix" is 
synonymous  with "annex" and "attachment", which are terms that are also used in the various translations of 
the relevant regulations to refer to the same section of the legal instrument.  
185 See also Brazil's first written submission, para. 77 and 191; and Indonesia's  first written submission, 
para. 223.  WT/DS484/R  
 
- 49 - 
 
  prohibition on certain products; in the course of the proceeding s, Brazil referred to this measure as 
the "positive list requirement", the term also used by Indonesia.186 We do likewise.  
7.104.   As we explained above187, the legal instruments enacting the positive list requirement have 
been revoked and replaced twice since panel e stablishment. The table below sets out relevant 
provisions in the three different sets of legal instruments as they will be discussed in this section.  
Table 2 Relevant provisions regarding the p ositive list  requirement  
First set of legal instruments  Second set of legal instruments  Third set of legal instruments  
 
MoA 139/2914 (Exhibit BRA -
34) 
 
Art. 8  
Requirements  for meat … and 
carcass and/or meat from other 
than bovine, as well as its 
processed  as Listed in  Appendix 2 
which are int egral parts of this 
Ministerial Regulation.   
MoA 58/2015 (Exhibit BRA -
01/IDN -24) 
 
Art. 7  
In addition to the requirements 
referred in Article 4, Article 5, and 
Article 6, the importation of 
carcass, meat and/or the 
processed product thereof must 
comply wit h the requirements of:  
 
a. Type of carcass, meat and the 
processed product thereof;  
 
Art. 8  
… 
(2) Types of non -cattle carcass and 
the processed product thereof as 
referred to in Article 7 letter a, are 
included in Attachment II which is 
an inseparable par t of this 
Ministerial Regulation.  
  
MoA 34/2016 (Exhibit BRA -
48/IDN -93) 
 
Art. 7  
… 
(2) …type of carcass, meat, and/or 
offal other than cattle including its 
processed products … are listed in 
Annex II which is an integral part 
of this Ministerial Regulation.  
 
(3) The type of carcass … other 
than cattle which is not listed in … 
Annex II … may still be granted 
recommendation, as long as it 
meets the requirements of safe, 
healthy, wholesome and halal ….  
 
MoT 46/2013 (Exhibit BRA -42) 
 
Art. 2  
… 
(2) The Type of An imal and Animal 
Product that can be imported as  
included in  Appendix  I and 
Appendix  II is an integral  part of 
this Ministerial Regulation.  
 
Article 11  
(2) To obtain Import Approval  … 
company that will  import  Animal  
and/or  Animal  Product  must 
submit  applica tion by attaching:  
(a) recommendation from the 
Minister of Agriculture or official 
appointed  by the Minister of 
Agriculture, for importing Animal 
and fresh Animal  Product as stated 
in Appendix II of this Ministerial 
Regulation;   
MoT 05/2016 (Exhibit BRA -03) 
 
Art. 7  
… 
(2) The type of Animal and Animal 
Product that can be imported shall 
be as per Appendices II, III, and 
IV forming integral part hereof.  
 
Article 10  
(2) To obtain  Approval  to Import  … 
the company shall  submit  the 
application  … by attaching:  
… 
(e) Recommendation of the 
Minister of Agriculture or official so 
appointed by the  Minister  of 
Agriculture,  for Import  of Animal  
and Animal  Product  as per 
Appendices III and IV hereto;   
MoT 59/2016 (Exhibit IDN -
109)  
 
Art. 7  
… 
(2)  
The types of Animals and Ani mal 
Products which are limited for 
importation  are as included  in 
Annex  II and III, which  is an 
integral part of this Minister 
Regulation.  
 
Art 11  
(1) To obtain the Import Approval 
… for the importation of Animals 
and Animal Products … the API 
holder compa ny... shall submit an 
application … by attaching:  
… 
(e) Recommendation from the 
Minister of Agriculture or an official 
appointed by the Minister of 
Agriculture, for the Import of 
Animals and Animal Products as 
listed in Annex II and Annex III in 
which an i ntegral part of this 
Minister Regulation;  
 
Article 29  
Animal and animal products that 
                                                
186 Indonesia's first written submission, para. 218.  
187 See sections 2.2 and 7.2.4 above.  WT/DS484/R  
 
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  First set of legal instruments  Second set of legal instruments  Third set of legal instruments  
are not contained in the 
attachment of this Minister 
Regulation may be imported after 
obtaining  Import  Approval  from 
Import Director by attaching 
Recommendation  as referred to in 
Article  11 paragraph  (1) letter e or 
f. 
 
 
7.105.   As explained in section 7.2.4.3  above , we will first analyse the measure as enacted 
through the second set of legal instruments ( i.e. regulations  MoA 58/2015 and MoT 05/2016 ), the 
version Brazil refers to in its first written submission. We then move on to examine the relevant 
provisions of the third set of legal instruments .  
7.4.2   Panel's analysis of the positive list requirement as enacted through MoA 58/2015 
and MoT 05/2016  
7.106.   We note that the relevant provisions of regulations  MoA 58/2015 and MoT 05/2016 are 
virtually identical to those of MoA 139/2014 and MoT 46/2013,  which were in force at the time of 
the panel establishment  (i.e. first set of legal instruments) . Thus, given tha t the measure remains 
in essence the same, we consider that we have jurisdiction to review its WTO consistency .188 
7.107.   Brazil contends that the positive list requirement constitutes a violation of Article XI of the 
GATT 1994 and Article 4.2 of the Agreement on A griculture .189 Indonesia does not dispute that 
MoA 58/2015 and MoT 05/2016 establish a prohibition on the importation of chicken cuts.190 
Indonesia however submits that the measure is justified under Article XX(d) of the GATT 1994.191 
7.4.2.1   Preliminary issue of fact – whether prepared or preserved chicken meat can be 
imported into Indonesia  
7.108.   Before we address the parties' arguments regarding the merits of Brazil's claims we first 
need to address a factual issue. The issue is whether prepared or preserved chicken meat ca n be 
imported into Indonesia. While Brazil claims it cannot, Indonesia submits that it can.  
7.109.   We recall that, in our preliminary ruling set out in section 7.1.2.4 above , we addressed a 
jurisdictional issue regarding prepared o r preserved chicken meat. More specifically, we found that 
our terms of reference covered Brazil's claims on the positive list requirement in respect of 
prepared or preserved chicken meat.  
7.110.   Following our ruling, Indonesia, in its second written submission, asserted that prepared or 
preserved chicken meat could be imported into Indonesia. Indonesia's assertion was notably based 
not on the above set of legal instruments, but on a different regulation . Indonesia argued that 
pursuant to MoT  87/2015, prepared or preserved chicken meat could be imported into 
Indonesia.192  
7.111.   We clarified the issue through a number of questions to the parties.193 Based on their 
responses  and comments, our understanding is as follows: MoT 87/2015194 is a regulation that 
                                                
188 See paras. 7.84 and 7.93 above.  
189 See Brazil's first written submission, paras. 191 -194. See also Brazil's first written submission paras. 
99-101. 
190 See Indonesia's first written submission, para. 223.  
191 See Indonesia's first written submission, paras. 223 and 22 9-234. 
192 Indonesia's second written submission, paras. 25 -27. 
193 See parties' responses to Panel question Nos. 72 (a), (b), and (c).  
194 We note that MoT 87/2015 was not in force at the time of panel establishment. As explained by 
Indonesia, MoT 87/2015 was o riginally scheduled to enter into force on 1 November 2015 until 31 December 
2018 (Article 26). However, MoT 94/2015 (Exhibit IDN -113) amended Article 26 and provided that MoT 
87/2015 shall come into effect on 1 January 2016 until 31 December 2016 (See Ind onesia's response to Panel 
question No. 72 (b)). The predecessor regulation that was in force at the time of panel establishment was MoT 
83/2012. It provides for a similar set of import conditions and also applies to prepared or preserved chicken 
meat, (Ex hibit IDN -128).  WT/DS484/R  
 
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  imposes a number of c onditions on certain products upon importation; for example, the regulation 
limits the choice of ports of destination in Indonesia for the concerned products.195 The regulation 
applies to some 800 tariff lines, including certain processed animal products suc h as prepared or 
preserved chicken meat. However, the fact that a good is subject to the import conditions set out 
in MoT 87/2015 does not mean that it cannot at the same time be subject to other import 
regulations, including that its importation may be pr ohibited altogether by virtue of provisions set 
out elsewhere.196 This is the case with respect to the product at issue in this dispute. Prepared or 
preserved chicken meat is  not listed in the relevant appendix of MoA 58/2015 or in that of MoT 
05/2016. Thus,  its importation is not allowed by virtue of those regulations.197  
7.112.   We therefore find that notwithstanding the fact that prepared or preserved chicken meat is 
covered by MoT 87/ 2015, it cannot be imported pursuant to MoA 58/2015 and MoT 05/2016.   
7.4.2.2   Whether th e positive list requirement is inconsistent with Article XI of the GATT 
1994  
7.113.   Brazil submits that the positive list requirement prohibits the importation of chicken cuts 
and other prepared or preserved chicken meat and is, therefore, contrary to Article XI  of the GATT 
1994.198 As noted above, Indonesia does not dispute that the positive list requirement establishes 
a prohibition on the importation of chicken cuts and offers no arguments under Article XI.199    
7.114.   Article XI:1 of the GATT 1994 reads as follows:  
No prohibitions or restrictions other than duties, taxes or other charges, whether 
made effective through quotas, import or export licences or other measures, shall be 
instituted or maintained by any contracting party [Member] on the importation of any 
product  of the territory of any other contracting party [Member] or on the exportation 
or sale for export of any product destined for the territory of any other contracting 
party [Member].  
7.115.   Accordingly, we need to assess the following two questions with regard to the positive list 
requirement: (1) whether it is a prohibition or restriction on the importation of chicken meat and 
chicken products, and (2) whether it is made effective through quotas, import or export licences or 
other measures.  
7.116.   As regards the first qu estion, the Appellate Body has identified the meaning of the term 
"prohibition" as a "legal ban on the trade or importation of a specified commodity".200 In our view, 
the positive list requirement qualifies as a "legal ban" because the direct legal consequen ce of not 
being listed as a product is that importation of that product is not allowed. The positive list 
requirement, therefore, is a prohibition within the meaning of Article XI.  
7.117.   As regards the second question, the Appellate Body in Argentina – Import Me asures 
analysed the meaning of measures "made effective" and concluded that it covers "measures 
                                                
195 See Articles 2 and 4 of MoT 87/2015 (Exhibit IDN -33). 
196 See Indonesia's response to Panel question No. 72 (a) and (c).  
197 We note that the predecessor of MoT 05/2016, namely MoT 46/2013, did list prepared or preserved 
chicken meat in its r elevant appendix. Thus, the importation of prepared or preserved chicken meat was 
allowed by virtue of that regulation. However, as seen in section 7.3 above, the granting of an MoT Import 
Approval under the MoT regulation is d ependent on an MoA Import Recommendation under the MoA regulation. 
Therefore, because the product was not listed in the relevant appendix of the MoA regulation applicable at the 
time (MoA 139/2014), no MoA Import Recommendation could be granted, and conseq uently, no MoT Import 
Approval could be granted under MoT 46/2013. See also Indonesia's response to Panel question No. 72(c).  
198 Brazil's first written submission, paras. 191 -194. See also Brazil's first written submission, paras 99 -
101. 
199 Indonesia's first  written submission, para. 228. As noted in section 7.2.3.2  above, Indonesia takes 
the view that Article XI of the GATT 1994 does not apply and, therefore, made its main arguments under 
Article 4.2 of the Agreement on Agricu lture. We note that also under Article 4.2 of the Agreement on 
Agriculture, Indonesia does not contest that there is a quantitative restriction on imports within the meaning of 
footnote of Article 4.2. See Indonesia's first written submission, para. 223.  
200 Appellate Body Reports, China – Raw Materials , para. 319; and Argentina – Import Measures , para. 
5.217.  WT/DS484/R  
 
- 52 - 
 
  through which a prohibition or restriction is produced or becomes operative".201 We recall  that the 
positive list requirement means that no import recommendation and/or no import approval are 
granted if and when a product is not contained in the relevant appendices.202 The import approval 
operates as a licence in that it constitutes the permission required to import chicken meat and 
chicken products into Indonesia.203 Thus, the positive list requirement is made effective through a 
licence.  
7.118.   We therefore conclude that the positive list requirement is inconsistent with Article XI of 
the GATT 1994.  
7.4.2.3   Whether the positive list requirement is justified under Article XX(d) of th e 
GATT 1994  
7.119.   Indonesia raises a defence under Article XX(d) of the GATT 1994, submitting that the 
positive list requirement is necessary to secure compliance with Indonesia's laws and regulations 
dealing with halal requirements, as well as deceptive practic es and customs enforcement  relating 
to halal.204 Indonesia's concern is that chicken parts would be sourced from non –halal slaughtering 
houses and passed off as halal. Indonesia does not put forward arguments to justify the 
prohibition on prepared or preserv ed chicken meat.205 
7.120.   Brazil considers that the positive list requirement is not justified206 and asserts, inter alia,  
that halal certification would be a less trade -restrictive alternative measure.207    
7.121.   Article XX states in its relevant part:  
Subject to the req uirement that such measures are not applied in a manner which 
would constitute a means of arbitrary or unjustifiable discrimination between countries 
where the same conditions prevail, or a disguised restriction on international trade, 
nothing in this Agre ement shall be construed to prevent the adoption or enforcement 
by any contracting party  [Member]  of measures:  
… 
(d) necessary to secure compliance with laws or regulations which are not inconsistent 
with the provisions of this Agreement, including those r elating to customs 
enforcement, the enforcement of monopolies operated under paragraph 4 of Article II 
and Article XVII, the protection of patents, trade marks and copyrights, and the 
prevention of deceptive practices;  
7.122.   In order to assess Indonesia's defenc e, we need to proceed in two steps .208 First, we need 
to assess whether the measure is provisionally justified under subparagraph (d) of Article XX, as 
set out above. If that is the case, we go on to examine whether the measure satisfies the 
                                                
201 Appellate Body Reports, Argentina – Import Measures , para. 5.218.  
202 See description in paragraph 7.103  above.  
203 The Pane l notes that Article XI of the GATT 1994 does not define the concept of "import licence". The 
Shorter Oxford English Dictionary defines "licence" as "liberty to do something, leave, permission". ( Shorter 
Oxford English Dictionary , 6th edn, W.R. Trumble (ed .) (Oxford University Press, 2007), Vol. 2, p. 2363). The 
panel in Turkey – Rice, while noting that the concept of "import licence" is not defined under Article XI, 
referred to the definition of "import licensing" contained in Article 1.1 of the Import Lic ensing Agreement, i.e. 
"administrative procedures  used for the operation of import licensing regimes requiring the submission of an 
application or other documentation (other than that required for customs purposes) to the relevant 
administrative body as a  prior condition for importation into the customs territory of the importing Member". 
See Panel Report, Turkey – Rice, para. 7.126.   
204 See Indonesia's first written submission, para. 230. For a brief description of what "halal" means in 
respect of chicken  meat, see para. 7.536  below.  
205 See Indonesia's first written submission, para. 232; and Indonesia's opening statement at the first 
meeting of the Panel, para. 89.  
206 Brazil's opening statement at the first meeting of the Panel,  paras. 56 -59, and 63 and second written 
submission, paras. 85 -103. 
207 Brazil's second written submission, para. 93.  
208 Appellate Body Reports, US – Gasoline , p. 22 (DSR 1996:I, 3, at 20); and EC – Seal Products , para. 
5.169.  WT/DS484/R  
 
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  requirements of the chapeau of Article XX. Furthermore, we note that Indonesia, as the party 
asserting the defence, generally has the burden of proof.209 
7.123.   We turn to assess whether the positive list requirement is provisionally justified under 
subparagraph (d) of Article XX.  In line with relevant guidance provided by the Appellate Body210, 
we consider that this assessment requires us to address the following two questions: (1) whether 
the positive list requirement is designed to secure compliance with laws or regulations that a re not 
themselves inconsistent with some provision of the GATT 1994; and (2) whether the positive list 
requirement is necessary to secure compliance with those laws and regulations.  
7.4.2.3.1   Whether the positive list requirement is designed to secure compliance wit h 
laws or regulations that are not themselves inconsistent with the GATT 1994  
7.124.   Turning to the first of these questions, we note that Indonesia refers to three different 
laws, namely Law 18/2009 (Animal Law), Law 33/2014 (Halal Law), and Law 8/1999 (Consumer  
Law).211 Brazil has not called into question the consistency of these laws with the GATT 1994, and 
we agree with Indonesia that it must, therefore, be presumed .212 
7.125.   In terms of specific provisions, Indonesia refers to a provision of Law 18/2009 that 
addresses the Indonesian authorities' duty to "supervise, inspect, examine, standardize, certify 
and register animal products" in order "to secure safe, healthy, intact and rightful animal 
products".213 In the same law, indeed the same article, Indonesia points to the  requirement for 
imported products to have a "rightful certificate".214 Indonesia also refers to the obligation "to 
provide honest information about the condition and quality of products", which Law 8/1999 
imposes on entrepreneurs.215 In terms of specific hala l requirements in Indonesian law, Indonesia 
limits itself to a general reference to "the process of certification" in Law 33/2014.216     
7.126.   Indonesia explains that the positive list requirement "served to ensure the traceability of 
imported chicken meat and ch icken products to specific foreign establishments that obtained halal 
certificates".217 Elsewhere, Indonesia, in referring to the preamble of MoA 58/2015 asserts that 
that regulation "was created 'in view of' certain Indonesian laws, including [the three law s referred 
to above]" and that its stated purpose is to provide the legal basis to ensure the compliance with 
safety, healthy, wholesome and halal requirements.218  
7.127.   The Appellate Body has described the relevant test that we need to apply as "an initial 
exami nation of the relationship between the inconsistent measure and the relevant laws or 
regulations" which requires a panel to "scrutinize the design of the measures sought to be 
                                                
209 Appellate Body Report, US – Wool Shirts and Blouses , pp. 14, DSR 1997:I, 323 at 335. However, the 
Appellate Body also noted that in respect of the less trade -restrictive alternative measure, the complaining 
party has the burden of proof. See Appellate Body Report, US – Gambling  para. 3 09. See also 
para. 7.136  below.  
210 Appellate Body Report, Korea – Various Measures on Beef , para. 157. See also Appellate Body 
Report, Argentina – Financial Services , para. 6.202.  
211 See Indonesia's first written submission, para . 230. See also Law of the Republic of Indonesia 
Number 18/2009 on Husbandry and Animal Health  (Exhibit BRA -29/IDN -1); Law of Republic of Indonesia N o. 
33/2014 concerning Halal Product Assurance  (Exhibit BRA -46/IDN -5); and Law of the Republic of Indonesia No. 
8/1999  concerning Consumer Protection (Exhibit IDN -70). 
212 Indonesia's first written submission, para. 231 and opening statement at the first meeting of the 
Panel, para. 84. See in this regard, Appellate Body Report, US – Carbon Steel , para. 157.  We not e that 
Indonesia does not refer to any law or regulation concerning specifically customs enforcement; but see para. 
7.119  above.  
213 Indonesia's first written submission, para. 230 referring to Article 58(1) of Law 18/2009 (Exhib it 
IDN-1/BRA -29). 
214 Indonesia's first written submission, para. 230, referring to Article 58(4) of Law 18/2009 
(Exhibit  IDN-1/BRA -29). 
215 Indonesia's first written submission, para. 230 and fn 335, referring to Articles 4, 7, 9(1) and (3) of 
Law 8/1999 (Exh ibit IDN -70). 
216 Indonesia's first written submission, para. 230.  
217 Indonesia's first written submission, para. 232.  
218 Indonesia's opening statement at the first meeting of the Panel, para. 85.  WT/DS484/R  
 
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  justified".219 The Appellate Body has further clarified that the standard for asce rtaining whether 
such a relationship exists is whether the assessment of the design of the measure reveals that the 
measure is not incapable of securing compliance with the relevant laws and regulations in 
Indonesia.220 Finally, we note that the Appellate Bo dy has described this test as "not… particularly 
demanding" , in contrast to  the requirements of the next step of the analysis, namely the necessity 
test.221   
7.128.   With this in mind we turn to analyse Indonesia's arguments. In our view, the provisions 
that Indone sia refers to, as well as its explanation on traceability, at least when taken at face 
value, do not directly explain how the positive list requirement was designed to ensure compliance 
with Indonesia's stated concern that non -halal chicken cuts would be p assed off as halal. We 
consider that  the provisions referred to in the relevant laws are geared towards allowing  the 
importation of animal products into the country rather than banning  them as is effectively the case 
for chicken cuts, prepared or preserved  chicken meat (and other products).222 Certification and 
traceability are tools whose use is premised on importation being possible in the first place, as is 
the case for whole chicken. Chicken cuts that cannot be imported into Indonesia, neither require 
certification nor need to be traced. In other words, the provisions referred to above as well as 
Indonesia's explanation regarding traceability, when taken at face value, do not seem to account 
for the ban that the positive list requirement puts in place.  
7.129.   However, Indonesia has also described a factual background of certain incidents allegedly 
involving importation into Indonesia of non -halal chicken cuts. Against this background we 
understand Indonesia to suggest that the ban on chicken cuts was adopted beca use certification 
and traceability could not ensure what Indonesia seeks to ensure, namely that all imported chicken 
products are halal.223 It may be possible therefore, to understand Indonesia's arguments above as 
focusing on demonstrating how the regulator y system in Indonesia is generally geared towards 
ensuring the halalness of meat products, including  imported  meat products. The specific measure 
of the positive list requirement could then be explained as working towards the same objective, 
namely to ensu re halalness in the specific factual circumstances that Indonesia referred to.    
7.130.   As regards these specific factual circumstances, we note the following. Indonesia suggests 
that there were a number of incidents of imported non -halal meat being passed off a s halal.224 As 
evidence of this Indonesia submits a letter from the Indonesian Minister of Agriculture to his US 
counterpart dated 2002.225 In this letter reference is made to three incidents. One is described as 
involving imports of chicken quarter legs "ille gally" entering the Indonesian market. The chicken 
legs were produced by a US company that was known to have only one halal certified food 
processing plant. Indonesia, elsewhere, describes the shipment in question as "part halal, part 
non-halal" and explai ns that it was this incident that led to the adoption of the positive list 
requirement and, therefore, to the ban on chicken cuts in 2006.226 The second incident involved a 
shipment of chicken cuts that were destined for Russia, but ended up in the Indonesia n market, 
which, as Indonesia explains elsewhere, "caused unrest amongst Muslim consumer s as they 
considered those products were not halal".227 The third reference in the Indonesian Minister's letter 
to his US counterpart is to a US meat producer that has "f irmly stated" that its products imported 
into Indonesia, which were accompanied by a halal certificate, have never been produced under 
halal procedures. The letter neither identifies the company in question nor offers any other factual 
information in this regard.  
                                                
219 Appellate Body Report, Argentina – Financial Services , para. 6.203. See also Appellate Body Report, 
Colombia – Textiles, para. 5.124  referring to this standard (developed under Article XIV of the GATS) as 
relevant in the context of Article XX(a) of the GATTT 1994. . 
220 Appellate Body Report, Colombia – Textiles , paras . 5.68 (referring to the test applicable in the 
context of Article XX(a)) and 5.125 -5.128 (indicating that the test is also applicable to Article XX(d)).  
221 Appellate Body Report, Colombia – Textiles , para. 5.70.  
222 As Indonesia explains in response to Panel  question No.81, turkey cuts and duck cuts have not been 
included in the positive list for the same reason as chicken cuts.  
223 Indonesia's response to Panel question No. 80.  
224 See Indonesia's response to Panel question No. 78, referring to  Indonesia Ministr y of Agriculture's 
response dated 5 April 2002 to the Letter from United States Secretary of Agriculture (Exhibit IDN -82). See 
also Indonesia's response to Panel question No. 80.  
225 See Letter by Indonesia's Minister of Agriculture (Exhibit IDN -82). 
226 Indon esia's response to Panel question No.78(a). Note that chicken cuts have never been included in 
the positive list since its first adoption in 2006. See Indonesia's response to Panel question No. 78(b). See also 
section 7.3 above . 
227 Indonesia's response to Panel question No.78(a).  WT/DS484/R  
 
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  7.131.   We have some doubts with regard to these explanations. First of all, if the risk of non -halal 
chicken cuts being passed off as halal exists, as Indonesia argues, why would the same risk not 
exist with regard to whole chicken, which is not prohibit ed? Indonesia explains that there were no 
incidents involving whole chicken and that it addresses problems as they arise on a case -by-case 
basis.228 We are not persuaded by this argument, as we do not see why non -halal whole chicken 
could not as easily be pa ssed off as halal as in the case of chicken cuts.229 Second, we are not sure 
about the extent to which the incidents mentioned above involved shipments being passed off as 
halal, rather than simply shipments, which were never meant to be imported into Indone sia and, 
for that reason, should have been stopped upon importation.230 Third we note that in Indonesia's 
own description, it is an incident that dates back to 1999, which led to the adoption of a regulation 
in 2006.231 This means that , Indonesia decided to pu t in place a measure after a s long a  period as 
seven years to address a risk , which moreover  does not seem to have materialized again in the 
intervening years.        
7.132.   The above factors cast some doubt on the link claimed by Indonesia between the incidents 
and the putting in place of the positive list requirement. However, we are mindful that our task is 
not to evaluate historic facts, but to assess whether a measure , independent of the reasons cited 
for its adoption , can objectively be considered to have a relationship with the laws and regulations 
in question. As noted above, this is the case if the measure is not incapable  of securing compliance 
with them. We found above  that the positive list requirement has the effect akin to a ban as it 
effectively  prohibits import of chicken cuts  and other chicken products  into Indonesia. We consider 
that a ban is not incapable of securing halalness insofar as it excludes any risk of non -halal 
products being imported into the country.  That it also excludes products that  are halal, is a 
different issue to be addressed in the level of necessity.  We recall that the Appellate Body has 
highlighted a panel's duty to structure its analysis in such a way that it does not "truncate [that 
analysis] prematurely and thereby foreclos e consideration of crucial aspects of the respondent's 
defence relating to the 'necessity' analysis".232               
7.133.   For these reasons we find that the positive list requirement is designed to secure 
compliance with the halal requirements laid down in Indo nesian law.  
7.4.2.3.2   Whether the positive list requirement is necessary to secure compliance with 
the relevant laws and regulations in Indonesia  
7.134.   The second question we need to address to establish whether the positive list requirement 
is provisionally justified und er Article XX(d) of the GATT 1994, is whether that measure is 
necessary  to secure compliance with Indonesia's halal requirements.  
7.135.   In line with the Appellate Body's guidance in Colombia – Textiles, the assessment of the 
"necessity" of a measure "entails an  in-depth, holistic analysis" of the relationship between the 
measure and the objective it pursues, which in the current dispute, is to secure compliance with 
Indonesia's halal requirements.233  
7.136.   The test involves a process of "weighing and balancing" a s eries of factors, including 
(1) the importance of the objective, (2) the contribution of the mea sure to that objective, and 
(3) the trade -restrictiveness of the measure.234 In most cases, a comparison between the 
challenged measure and (4) possible alternatives should then be undertaken.  The burden to 
                                                
228 Indonesia's response to Panel question No.79.  
229 We also have some doubts regarding Indonesia's explanations as to why lamb cuts and goat cuts are 
not prohibited. Indonesia explains that, due to their s ize, those animals cannot be slaughtered with a rotary 
blade (Indonesia's response to Brazil's question No. 1(a)). However, in our view they could still be slaughtered 
in a non -halal manner and be passed off as halal irrespective of whether they can be sla ughtered with a rotary 
blade.  
230 The Russia shipment, for example, since it was not destined for the Indonesian market, should not 
have passed import control. Similarly, in respect of the first incident referred to above, it is not clear whether 
the shipmen t was certified halal or not.  
231 Indonesia's response to Panel question No.78(a).  
232 Appellate Body Report, Colombia - Textiles , para. 5.77 (citing Appellate Body Report, Argentina – 
Financial Services , para. 6.203).  
233 Appellate Body Report, Colombia - Textiles, para. 5.70. See also Appellate Body Report, Argentina – 
Financial Services , para. 6.204.  
234 Appellate Body Reports, Colombia – Textiles , para. 5.70; and EC - Seal Products , para. 5.169.  WT/DS484/R  
 
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  identify any alternative measures that would be less trade -restrictive is on the complaining 
party.235 The Appellate Body has described the process of weighing and balancing these factors as :  
a holistic operation tha t involves putting all the variables of the equation together and 
evaluating them in relation to each other after having examined them individually, in 
order to reach an overall judgement.236 
7.137.   Thus, we examine each of the four factors individually before reac hing an overall 
conclusion on whether the measure is necessary.  
7.138.   Turning to the first factor – the societal value at stake – a panel needs to assess the 
relative importance  of the interests or values furthered by the challenged measure.237 The more 
vital or important the interests or values that are reflected in the objective of the measure  are, the 
greater  their weight  is in the overall weighing and balancing exercise.238 
7.139.   Indonesia emphasizes the importance of halalness for its population which is 
predominantl y Muslim.239 Brazil acknowledges that importance and emphasizes in turn that it does 
not take issue with Indonesia's halal requirements.240 We see no disagreement between the 
parties on this issue. To us, there is no doubt that halalness is of great importance  to the 
Indonesian population and, thus, represents a societal value of considerable weight.  
7.140.   Turning to the second factor – contribution – a panel must assess "in a qualitative or 
quantitative  manner, the extent of  the measure's contribution to the end pur sued".241 As the 
Appellate Body observed, "[t]he greater the contribution, the more easily a measure might be 
considered to be 'necessary'".242 However, the Appellate Body also pointed out that since a 
measure's contribution is only one component of the necess ity calculus under Article XX, the 
assessment of whether a measure is "necessary" cannot be determined by the degree of 
contribution alone, but will depend on the manner in which the other factors of the "necessity" 
standard inform the analysis.243 
7.141.   Based on this guidance, we apply a qualitative assessment of the contribution that the ban 
on chicken cuts makes in ensuring halalness of chicken meat in Indonesia. On the one hand, a ban 
on chicken cuts contributes to ensure respect for halal requirements insofar as it effectively 
reduces the risk of non -halal imported chicken cuts being passed off as halal to something close to 
zero: where no imported chicken cuts can enter the country, non -halal chicken cuts cannot be 
passed off as halal. We note in this context that Indonesia refers to its level of protection in 
respect of halalness as "zero tolerance" or "zero risk".244 We point out, however, that there is 
some doubt as to the extent of the risk of non -halal chicken cuts being passed off as halal, in the 
first pla ce. As seen above, Indonesia points to only three incidents, not all of which necessarily 
demonstrate the risk in question and which, furthermore, date back to 1999. Moreover, Indonesia 
has not been able to explain why no such risk would exist for whole ch icken.    
7.142.   On the other hand, a ban prevents all imported chicken cuts from entering the country, 
including those that are in full compliance with the Indonesian halal requirements. As noted above, 
Indonesia's regulatory system is geared towards allowing ha lal products to enter the country. 
Viewed from this perspective, the ban makes no contribution and is in fact counterproductive to 
allowing Indonesian consumers to buy imported halal chicken cuts.  
                                                
235 Appellate Body Reports, US – Gambling , paras. 309 and 311; and Brazil – Retreaded Tyres , 
para. 156. 
236 Appellate Body Report, Brazil – Retreaded Tyres , para. 182.  
237 Appellate Body Report, US – Gambling , para. 306 (citing Korea – Various Measures on Beef , 
para. 162).  
238 See Appellate Body Report, Korea – Various Measures on Beef , para. 162.  
239 See e.g. Indonesia's first written submission, para. 26; and opening statement at the first meeting of 
the Panel, paras. 3 -4. 
240 Brazil's opening statement at the first meeting of the Panel, para. 59; closing statement at the first 
meeting of the Panel, para. 10; and second written submission, para. 94.  
241 Appellate Body Report, Argentina – Financial Services , para. 6.234.  
242 Appellate Body Report, Korea – Various Measures on Beef , para. 163.  
243 Appellate Body Reports, EC – Seal Products , para. 5.215.  
244 Indonesia's response to Panel question Nos. 78(a) and 84.  WT/DS484/R  
 
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  7.143.   These considerations bring us to the third factor to be co nsidered in the context of a 
"necessity" assessment, namely the trade -restrictiveness of the measure. We note that, similar to 
the above analysis on contribution, a panel must assess the degree  of trade -restrictiveness and 
may do so in a qualitative or qua ntitative manner .245 Furthermore, following the same logic as 
above, the less trade -restrictive a measure is the better its chances are of being considered 
necessary, bearing in mind, however, that trade -restrictiveness is only one component in the 
overall a nalysis. 246 
7.144.   Indonesia submits that "the fact that the measure imposed a prohibition on the 
importation of certain specific categories of chicken products, which undermined Indonesia's 
objective, does not mean that the measure was a ban". Indonesia adds that  "nothing prevented 
Brazilian exporters from exporting to Indonesia whole carcasses of chicken, provided that 
Indonesia's halal requirements were fulfilled". In Indonesia's view, therefore, the measure is not 
highly trade -restrictive.247 We are somewhat puzz led by this argument given that it is Indonesia's 
own legislation that applies two different measures, by allowing one product and banning the 
other.   
7.145.   A ban, as the panel in Brazil – Retreaded Tyres put it, is "as trade -restrictive as can be".248 
It thus we ighs heavily against considering a measure necessary.249 The Appellate Body noted as 
much in Brazil – Retreaded Tyres by pointing out that   
[W]hen a measure produces restrictive effects on international trade as severe as 
those resulting from an import ban, it appears to us that it would be difficult for a 
panel to find that measure necessary unless it is satisfied that the measure is apt to 
make a material contribution to the achievement of its objective.250  
7.146.   We note that the Appellate Body in this context rej ected an argument made by Brazil that 
the high level of protection sought through the ban meant that even a marginal or insignificant 
contribution should be considered necessary.251  
7.147.   Applying this guidance to the present case, we note that our earlier assess ment of the 
contribution of the measure has been a "mixed bag": the ban prevents the importation of non -
halal chicken meat, but also the importation of halal chicken meat – thus, it makes a contribution 
regarding non -halal meat, but no contribution regardi ng halal meat. The actual risk of non -halal 
meat being passed off as halal, to the extent it has been proven to have materialized, dates back 
to 1999. Indonesia pursues a zero risk policy, but according to the Appellate Body's 
pronouncement cited in paragr aph 7.146 above , that does not mean that any kind of contribution 
must be considered necessary.   
7.148.   Without reaching any preliminary conclusion on necessity252, we turn to the fourth factor to 
be considered in the overall assess ment of necessity, namely the question of a less trade -
restrictive alternative measure.  
7.149.   Brazil submits that a less trade -restrictive alternative measure would be certification in 
slaughterhouses in the exporting countries.253 Indonesia submits that Brazil, in referring to this 
less trade -restrictive measure in just two sentences, has not met its burden of proof. Furthermore, 
                                                
245 Appellate Body Report, Korea – Various Measures on Beef , para. 163.  
246 Appellate Body Reports, EC – Seal Products, para. 5.125.  
247 See Indonesia' opening statement at the first meetin g of the Panel, para. 88.  
248 Panel Report, Brazil – Retreaded Tyres , para. 7.211.  
249 The Appellate Body has emphasized that there is no predetermined threshold of contribution in 
analysing the necessity of a measure under Article XX. See Appellate Body Repor ts, EC – Seal Products , para. 
5.213.  
250 Appellate Body Report, Brazil – Retreaded Tyres , para. 150. See also Appellate Body Report, EC – 
Seal Products , para. 5.213, where the Appellate Body stressed that in Brazil – Retreaded Tyres , "the Appellate 
Body was careful not to suggest that its approach in that dispute was requiring the use of a generally 
applicable threshold for a contribution analysis".  
251 Appellate Body Report, Brazil – Retreaded Tyres , para. 150.  
252 Appellate Body Reports, EC– Seal Products , para . 5.215. See also fn 1299 to the same paragraph.  
253 Brazil's second written submission para. 93; opening statement at first meeting of the Panel, para. 
58. WT/DS484/R  
 
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  Indonesia seems to suggest that Brazil cannot propose, as a less trade -restrictive alternative, a 
measure that already exists.254  
7.150.   We not e that a panel must compare the challenged measure and possible alternative 
measures that achieve the same level of protection while being less trade restrictive.255 The 
Appellate Body has explained that an alternative measure must be "reasonably available" and, 
thus, may not impose "an undue burden on that Member, such as prohibitive costs or substantial 
technical difficulties".256 Indonesia is correct in pointing out that the burden of proving the 
existence of an alternative measure that satisfies the aforeme ntioned elements falls on Brazil as 
the complainant.257 We will, therefore examine whether this burden has been met.  
7.151.   Brazil refers to halal certification as the less trade -restrictive alternative. We note that 
halal certification already exists in Indonesia n law (both for domestic and imported products). At 
the time that is relevant to assessing this measure, halal certification of imported meat products 
was a requirement set out in the relevant legislation.258 Furthermore, Law 33/2014, which, among 
other thin gs, refers to halal certification, had already been put in place.259 We do not understand 
Brazil to be proposing certification procedures other than those that are already in place.  
7.152.   Thus, in our view, the issue is not whether Brazil has met its burden of pro of. It clearly has 
since the content of the proposed alternative measure is clear and there is no doubt that it is 
reasonably available. The issue rather is whether Brazil can propose as a less trade -restrictive 
alternative, a measure that Indonesia alread y has in place. We understand Indonesia to suggest 
that it cannot.260 The relevant jurisprudence that Indonesia refers to in this context is Brazil – 
Retreaded Tyres . In that dispute the panel and the Appellate Body rejected some of the alternative 
measures proposed by the complainant  on the grounds that they were already in place as part of a 
comprehensive strategy. The Appellate Body reasoned:  
Substituting one element of this comprehensive policy for another would weaken the 
policy by reducing the synergies  between its components, as well as its total effect.261   
7.153.   In our view, the situation in the present case differs from the facts at issue in Brazil – 
Retreaded Tyres. At issue in Brazil – Retreaded Tyres was a measure that already applied to the 
product in q uestion. Here, while certification already exists in Indonesian law, it is not a measure 
that already applies to the banned products. As noted above, chicken cuts that cannot be imported 
into Indonesia, neither require certification nor need to be traced. A product cannot be certified 
and banned at the same time. Thus, in respect of the banned products subject to the measure at 
issue, certification is a new measure, not one that already exists as part of a comprehensive 
policy. We therefore, see no reason w hy Brazil should be prevented from proposing certification as 
an alternative measure. Whether that measure achieves Indonesia's objective of ensuring 
halalness, bearing in mind Indonesia's strict level of protection, is a different question.  
                                                
254 Indonesia's response to Panel question No. 83.  
255 Appellate Body Report, US – Gambling , para. 307.  
256 Appellate Body Report, US – Gambling , para. 308.  
257 See para. 7.136  above.  
258 See Government Regulation No. 95/2012 Concerning Veterinary Public Health and Animal Welfare 
(Exhibit IDN -31). Articles 26 and 54, and Article 31 prov ides that domestic and imported animal meat products 
respectively, must have a halal certificate. See also Law 33/2014 which provides in its Article 4 that 
"[p]roducts that enter, circulate, and traded in the territory of Indonesia must be certified halal" . Furthermore, 
regarding specifically imported products, Article 14(1)(e) of MoA 58/2015 requires a business unit (in order to 
receive approval as exporting business unit. See section 7.3 above) to "have halal -certified butcher s for animal 
slaughterhouse other than swine slaughterhouse and supervised by halal certification institution acknowledged 
by Indonesian halal authority". Furthermore, Article 36(4) refers to a "halal certificate" as one of the 
documents that is checked by  a Veterinary Public Health Supervisor  once the meat products have been 
imported into the country.  
259 As Indonesia explains, the main purpose of Law 33/2014 was to unify existing halal assurance 
requirements and to create new government bodies to guarantee halal product assurance, in coordination with 
the Indonesian MUI. See Indonesia's response to Panel question Nos. 43 and 82.  
260 Indonesia argues that "Brazil did not however, explain the following essential elements of the 'less 
trade -restrictive alternativ e measure': … (ii) how this measure is different from the certification requirements 
that already exist in Indonesia; … (iv) why this measure is an alternative rather than a complement". See 
Indonesia's response to Panel question No. 83.  
261 Appellate Body R eport, Brazil – Retreaded Tyres , para. 172.  WT/DS484/R  
 
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  7.154.   On that questi on, we consider relevant the submissions Indonesia made in the context of 
explaining the latest developments on the positive list requirement as they have occurred through 
the adoption of MoA 34/2016 and MoT 59/2016.262 As we discuss in more detail below, In donesia 
submits that through these latest legal instruments the positive list requirement has been 
terminated.263 What matters to the question discussed here is the reason that Indonesia puts 
forward to explain the alleged termination of the positive list re quirement. According to Indonesia, 
it is the "more comprehensive certification requirements over a staggered period of time", which 
Law 33/2014 put in place, that led the relevant Indonesian authorities to consider that "the 
halalness of imported products,  in particular, chicken cuts and processed products [could be 
protected] even without the positive list".264 In other words, Indonesia considers that its current 
certification procedures are such that the positive list requirement is no longer necessary.        
7.155.   We note that the certification procedures that Indonesia refers to in making this argument, 
were already in place when the positive list requirement was enacted through MoA 58/2015 and 
MoT 05/2016. As regards specifically imported chicken products, cer tification through a national 
body accredited by the MUI has been required since 2001. It is our understanding that it is not 
envisaged that accreditation will change with the establishment of a new certification agency as 
provided for in Law 33/2014.265 Given this, we agree with Brazil, and we do not see why these 
certification procedures that Indonesia itself considers sufficient to meet its strict level of 
protection in respect of ensuring halalness, would not constitute a less trade -restrictive alternativ e 
measure for the purposes of the present "necessity" assessment.266   
7.156.   Having examined the four factors of the "necessity" test individually, we now turn to the 
overall assessment of all these factors considered together.  In weighing and balancing all factor s 
together in a holistic assessment, we  acknowledge the great importance that Indonesia attributes 
to halalness and we  recall the trade -restrictiveness of the measure and the ambivalent nature of 
the contribution. Mindful of these factors and given that an  alternative less -trade -restrictive 
measure exists that equally meets Indonesia's objective, we conclude that the measure does not 
comply with the requirements of the necessity test.      
7.157.   We therefore find that the positive list requirement is not necessary  pursuant to 
Article  XX(d). As this means that the measure does not meet the requirements of a provisional 
justification under Article XX(d), there is no need for us to further examine whether it meets the 
requirements of the chapeau.  
7.158.   We therefore conclud e that the positive list requirement is inconsistent with Article XI and 
not justified under Article XX(d) of the GATT 1994.  
7.4.2.4   Whether the positive list requirement is inconsistent with Article 4.2 of the 
Agreement on Agriculture  
7.159.   We recall that the aim of t he dispute settlement mechanism is to "secure a positive 
solution to a dispute" (Article 3.7 of the DSU) and that our duty, according to Article 11 of the DSU 
is to "make such other findings as will assist the DSB in making the recommendations or in giving  
the rulings provided for in the covered agreements". As the Appellate Body has observed, it is on 
the basis of these provisions, that panels may exercise judicial economy.267 The Appellate Body 
has also explained that the principle of judicial economy "allo ws a panel to refrain from making 
multiple findings that the same measure is inconsistent  with various provisions when a single, or a 
certain number of findings of inconsistency, would suffice to resolve the dispute".268 Thus, panels 
                                                
262 As regards taking into account subsequent developments in the context of Article XX of the GATT 
1994. See Panel Reports, China – Raw Materials , para. 7.25 (citing Appellate Body Reports China – Publications 
and Audiovisual Products,  para. 177; China – Auto Parts , para. 225; US – Section 211 Appropriations Act , 
para. 105; India – Patents (US) , para. 65). See also Appellate Body Report, EC – Selected Customs Matters , 
para. 188.  
263 Indonesia's second written submiss ion, paras. 28 -29 and 32 -34. 
264 Indonesia's response to Panel question No. 82.  
265 See MORA Decree 518/2001, (Exhibit IDN -107). For more details on the new agency , see 
para. 7.557  below.  
266 Brazil's comment on Indonesia's response to Panel question No. 83, para.18.  
267 See Appellate Body Report, Argentina – Import Measures , para. 5.189 (citing Appellate Body Report, 
EC – Export Subsidies on Sugar , para. 331).  
268 Appellate Body Report, Canada – Wheat Exports and Grain Imports , para.  133. (emphasis original)  WT/DS484/R  
 
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  need address only those claims "which must be addressed in order to resolve the matter in issue in 
the dispute"269, and panels "may refrain from ruling on every claim as long as it does not lead to a 
'partial resolution of the matter'".270 
7.160.   On the basis of the above, having found a vi olation of Article XI of the GATT 1994, we 
consider that it is not necessary to address Brazil's claim under Article 4.2 of the Agreement on 
Agriculture  in order to secure a positive solution to this dispute.  
7.4.3   Panel's analysis of the relevant provisions of MoA 34/2016 and MoT  59/2016  
7.161.   Our findings above apply to the positive list requirement as enacted through MoA 58/ 2015 
and MoT 05/2016. As noted at the beginning of this section, in the course of the proceedings, 
these two legal instruments were revoked and replaced by MoA 34/2016 and MoT 59/2016.   
7.162.   With this change, the parties' arguments have evolved. Indonesia submits that the positive 
list requirement has expired.271 Brazil disagrees.272 We will, therefore, examine, whether the 
positive list requirement has e xpired.  
7.4.3.1   Whether the positive list requirement has expired by virtue of MoA 34/2016 and 
MoT 59/2016  
7.163.   As discussed in section 7.2.4.3 above , we agree with Indonesia that the expiry of the 
measure at issue may have a bearing on whether we can make a recommendation. As we stated 
there, we consider that a measure has expired if it has ceased to exist. We thus need to examine 
whether the positive list requirement has ceased to exist by virtue of relevant provisions adopted 
in MoA 34 /2016 and MoT  59/2016.273 We note that Indonesia as the party that asserts expiry 
bears the burden of proving this.274 
7.164.   We refer to the relevant provisions as set out in Table 2 above. Indonesia argues that by 
virtue of Article 7(3) of  MoA 34/2016 and Article 29 of MoT  59/2016 chicken products may be 
imported into Indonesia even though they are not on the list, provided they meet the requirement 
of being safe, healthy, wholesome, and halal.275 Brazil submits that the sole fact that the 
lists/appendices still exist is sufficient proof that Indonesia has not revoked the positive list, 
pointing also to language that suggests that entitlement to be imported is derived from the lists.276 
Brazil furthermore reads Article 7(3) as providing Indonesi an authorities with full discretion on 
whether chicken products can be imported, concluding that that clause "does not indicate that the 
positive list is no longer in force but rather that these requirements are additional to that imposed 
by the positive l ist".277   
7.165.   We recall that the measure that is at issue in this dispute and that we have examined is 
the requirement for chicken meat and chicken products to be listed in the relevant appendices of 
Indonesia's regulations governing the importation of animal p roducts, in order for their importation 
to be permitted. In examining whether this measure has ceased to exist, we note, first of all, that 
the positive list as such still exists. It is still in both regulations and still refers to whole chicken 
                                                
269 Appellate Body Reports, US – Wool Shirts and Blouses , p. 19, DSR 1997:I, p. 340; US – Tuna II 
(Mexico) , para.  403. 
270 Appellate Body Report; US – Tuna II (Mexico) , para.  404 (citing Appellate Body Report, US – Upland 
Cotton , para. 73 2). 
271 See Indonesia's first written submission, para. 224; response to Panel question No. 13; second 
written submission, para. 135; and opening statement at the second meeting of the Panel, paras. 37 -38. 
272 Brazil's second written submission, para. 82.  
273 We consider these provisions as evidence of subsequent legal developments . See Panel Report , 
China – Raw Materials , para. 7.25 (citing Appellate Body reports, China – Publications and Audiovisual 
Products,  para. 177; China - Auto Parts , para. 225; US - Section 211 Appropriations Act , para. 105; and India 
- Patents (US) , para. 65 ). See also Appellate Body Report, EC – Selected Customs Matters , para. 188.  
274 See Appellate Body Report, US – Wool Shirts and Blouses , p. 14, DSR 1997:I, 323 at 335.  
275 Indonesia’s res ponse to Panel question No. 13 ; and second written submission, para. 34.  
276 Brazil points to headings of the appendices. See Brazil's comments on Indonesia's response to Panel 
question No. 77, para. 13.  
277 Brazil's comments on Indonesia's response to Panel q uestion No. 77, para. 14.  WT/DS484/R  
 
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  only.278 We are mindful that the measure at issue is not the list as such, but rather the 
requirement to be on that list in order to be allowed to be imported. However, the continued 
existence of the positive list raises doubts as to what its role is in determining wh ich products may 
be allowed into Indonesia. As Brazil points out , the wording of the headings describing the 
appendices has not changed from previous versions. They still describe those appendices as clearly 
establishing that only the products listed in th ose appendices are entitled to be imported into 
Indonesia.279 Similarly, there are other provisions that have not been changed and, therefore, still 
refer to the list as the authority for whether products may be imported. Article  7 of MoT 59/2016, 
for exampl e, prominently states the principle of imports being limited to certain products without 
mentioning or referring to what is now stated in Article 29.280 Most importantly, however, Article 
29 stipulates the need to obtain a recommendation "as referred to in A rticle 11 paragraph (1) 
letter e", which, in turn, refers to recommendations for products "as listed". Thus, this provision, 
on its face, refers to an MoA Import Recommendation obtained for products listed in Appendix III, 
(i.e. the positive list) but not to a recommendation obtained for products not listed in that 
appendix . Indonesia essentially suggests not to read Article 11 paragraph (1) subparagraph (e) 
too literally but to focus on the "operative part" of Article 29 which is about the need to have an 
MoA Import Recommendation.281  
7.166.   In light of the plain meaning of Article 11 paragraph (1), subparagraph (e), therefore, we 
conclude that the positive list requirement continues to apply in the same manner. We further 
consider that because the positive list re quirement continues to apply in the same manner, Article 
7(3) does not have any application.   
7.167.   We therefore find that  the positive list requirement has not ceased to exist , and 
consequently that this measure has not expired .  
7.4.3.2   Whether the positive list requ irement as enacted th rough the relevant 
provisions of MoA 34/2016 and MoT 59/2016 is inconsistent with Article XI of the GATT 
1994 and Article 4.2. of the Agreement on Agriculture  
7.168.   As we indicate in section 7.2.4.3 above , Brazil requests  the Panel to review its claims with 
regard to  the positive list requirement as enacted through MoA 34/2016 and MoT 59/2016 . 
7.169.   We found above, that by virtue, in particular of Articles 11(1)(e) and 29 of MoT 59/2016 
the positive l ist requirement continues to apply in the same manner as it applied by virtue of the 
relevant provision in MoA 58/2015 and MoT 05/2016. Given the unchanged, continued application 
of the positive list requirement, we consider that the measure remains in ess ence the same and 
that, therefore, we have jurisdiction to review its WTO consistency .  
7.170.   Furthermore, the unchanged, continued application of the positive list requirement leads 
us to the conclusion that our findings above continue to apply in the same mann er. Thus, the 
positive list requirement as enacted through MoA 34/2016 and MoT 59/2016 is inconsistent with 
Articles XI:1 and is not justified under Article XX(d) of the GATT  1994.  
7.171.   As regards Article 7(3) of MoA 34/2016, we found above, that given the con tinued 
application of the positive list requirement, this clause does not find any application. Therefore, we 
will not address the consistency of Article 7(3) with Article XI of the GATT 1994.   
7.172.   As with our findings above regarding the measure as enacted t hrough MoA 58/2015 and 
MoT 05/2016, we apply judicial economy to Brazil's claim under Article 4.2. of the Agreement on 
Agriculture.  
7.4.4   Conclusion  
7.173.   To summarize, we find that the positive list requirement as enacted through MoA  58/2015 
and MoT 05/2016 is incons istent with Article XI of the GATT 1994 and not justified under 
                                                
278 We note that the relevant appendix in MoA 34/2016 continues to be appendix II, whereas the 
relevant appendix in MoT 59/2016 is now appendix III (instead of appendix IV as it was in MoT 05/2016) . 
279 See Brazil's comments on Indone sia's response to  Panel question No. 77 , para . 13. 
280 See Articles 7 and 29 of MoT 59/2016 (Exhibit IDN -109).  
281 See Indonesia's response to Panel question No.75.  WT/DS484/R  
 
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  Article  XX(d) of the GATT 1994. Having found that the positive list requirement, as enacted 
through MoA 58/2015 and MoT 05/2016, is inconsistent with Article XI of the GATT 1994, we 
consider t hat it is not necessary to address Brazil's claim under Article 4.2 of the Agreement on 
Agriculture  in order to secure a positive solution to this dispute.  
7.174.   We further find that the positive list requirement has not ceased to exist by virtue of the 
relevan t provisions in MoA 34/2016 and MoT 59/2016.  
7.175.   Furthermore , given that the positive list requirement, as enacted through the relevant 
provisions of MoA 34/2016 and MoT 59/2016, continues to apply in the same manner as enacted 
through MoA 58/2015 and MoT 05/2 016, our findings on Article XI and XX(d) of the GATT 1994, in 
respect of the positive list requirement as enacted through MoA 58/2015 and MoT  05/2016, 
therefore, also apply to th is measure as enacted through MoA 34/2016 and MoT  59/2016.   
7.5  Individual measu re 2: Intended use requirement   
7.5.1   Introduction  
7.176.   We now turn to the second of the individual measures that Brazil challenges. This 
measure , which is contained in the relevant MoA regulation,282 consists in limiting the uses of 
imported chicken meat products in the Indonesian market to specific "intended uses" as identified 
in the relevant MoA regulation.283 The allowed use is spelled out in the MoA Import 
Recommendation ; sanctions are provided in case of non -observance. The parties have referred to 
this measure as  the "intended use requirement", a term which we hereby adopt.284   
7.177.   As noted above, the MoA regulation enacting the intended use requirement has been 
revoked and replaced twice since panel establishment.285 The table below sets out relevant 
provisions in the t hree successive versions of the MoA regulation, as they will be discussed in this 
section.  
Table 3 Relevant provisions in the three successive versions of the MoA regulation   
First set of legal instruments  Second set of legal instr uments  Third set of legal instruments  
 
MoA 139/2014 (Exhibit BRA -
34) 
 
Art. 30  
Recommendation … shall at least 
consist of:  
… 
(j) Purpose of usage.  
 
Art. 32  
… 
(2) Purpose of usage as referred to 
in Article 30 letter j, for carcass, 
and/or meat other than  beef and  
its processed  as referred  to in 
Article  8 includes:  hotel,  
restaurant, catering, 
manufacturing, other special 
needs, and modern market.  
 
Art. 39  
Business  Actors,  State -Owned  
Entities,  Regional  Entities, Social 
Institutions, or Foreign  
MoA 58/2015 (Exhibit BRA -
01/IDN -24) 
 
Art. 29  
Recommendation … shall at least 
contain:  
… 
(j) the intended use.  
 
Art. 31  
(1) Intended use, as referred to in 
Article 29 letter j, of carcass and 
meat, as referred to in Article 8, is 
for hotels, restaurants, caterings, 
industries, and other particular 
purposes.  
 
(2) Intended use, as referred to in 
Article 29 letter j, of the processed 
product is for hotels, restaurants, 
caterings, industries, and other 
particular purposes, as well as for 
modern market.  
  
MoA 34/2016 (Exhibit BRA -
48/IDN -93) 
 
Art. 4  
… 
(6) Business Actors, State Owned 
Enterprises, Regional Owned 
Enterprises, Social Institutions or 
International Institution 
Representatives as referred to in 
paragraph (1) are obliged to 
conduct i mportation in accordance 
with Recommendation as referred 
to in paragraph (3).  
 
Art. 22  
(1) Application of a 
Recommendation … shall be 
enclosed with the following 
required documents:  
… 
(l) distribution plan … in 
accordance for format -2 
 
                                                
282 We note that t he relevant MoT regulation does not contain such a requirement in respect of ch icken 
meat products, but only in respect of beef products. See the parties' responses to Panel question No. 86.  
283 See also Brazil's first written submission, paras. 87 and 102 and Indonesia's first written submission, 
para. 129.  
284 See Indonesia's first wri tten submission, para. 129; and Brazil's second written submission, para. 24.  
285 See sections 2.2 and 7.2.4 above.  WT/DS484/R  
 
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  First set of legal instruments  Second set of legal instr uments  Third set of legal instruments  
Country/Intern ational Institution 
Representatives, or that violate the 
provisions in:  
… 
(d) Article 32; … shall be 
sanction[ed] by withdrawing of the 
recommendation, not given next 
recommendation , and shall be 
proposed to the Minister of Trade 
for a withdrawal of their  Import 
Permit (PI)  and company status as 
an Animal Product Registered 
Importer (IT).  
 
 Art. 38  
Business Player, State Owned 
Enterprise (SOE) and Regional 
Government Owned Enterprise 
(ROE), Social  Institution,  and 
Foreign  Country 
Representative/International  
Institution  that breaches the 
provision of:  
… 
(e) Art. 31  
shall be sanctioned by revocation 
of their recommendation, denial of 
their next recommendation 
application,  and propose  to the 
Minister administrating 
governmental  trade affairs to  
revoke the Import Ap proval (PI).  
 Art. 28  
Recommenda tion … shall at least 
consist of:  
… 
(j) Purpose of usage.  
 
Art. 31  
(1) Purpose of usage as referred to 
in Article 28 letter j for carcass, 
meat, offal and/or its processed 
products which required a cold 
chain facility as referred to in 
Article 8 for hotels , restaurants, 
caterings, industries, markets with 
cold chain facilities, and other 
special needs.  
 
Art. 32  
(1) Business Actors, State -Owned 
Enterprises, Regional -Owned 
Enterprises, Social Institutions and 
Foreign Country/International 
Institution Represen tatives  who 
imports  carcass,  meat,  offal and/or  
their processed products is 
forbidden to:  
… 
(b) conduct  importation  of 
type/category  of carcass,  meat 
and/or  their processed products 
other than what is stated in the 
Recommendation.  
 
(3) Business Actors, Sta te-Owned 
Enterprises and Regional -Owned 
Enterprises which import carcass, 
meat and offal and/or their 
processed products as listed in 
Annex I and Annex II is required to 
submit a distribution report of the  
carcass  and meat to the Director  
General  online  in accordance to 
format -4 on every Thursday.  
 
Art. 38  
(1) Business Actors, State Owned 
Enterprises, Regional Owned 
Enterprises, Social Institutions or 
Foreign Country/Institution 
Representatives which violate 
Article 4 paragraph (2) and 
paragraph (6) will be  subject to 
temporary suspension of import 
recommendation for 1 year period, 
and proposed by the Minister to 
the ministry of trade to be imposed 
sanction according to the 
prevailing laws and regulations.  
... 
(3) Business Actors, State -Owned 
Enterprises, Re gional -Owned 
Enterprises, Social  Institutions  or 
Foreign  Country/Institution 
Representatives which violate the 
following articles:  
… 
(b) Article 22 paragraph (1) letter 
l, will be subject to written warning 
and if it is ignored, will be subject WT/DS484/R  
 
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  First set of legal instruments  Second set of legal instr uments  Third set of legal instruments  
to temporar y suspension of  import 
recommendation for 1 year period.  
 
(4) Business Actors, State -Owned 
Enterprises, Regional -Owned 
Enterprises, Social Institutions or 
Foreign Country/Institution 
Representatives which violate 
Article 32 will be subject to written 
warni ng and if it is ignored, will be 
subject to temporary suspension of 
import recommendation for 1 year 
period.  
 
 
7.178.   As explained in section 7.2.4.3 above , we will first analyse the measure as enacted in 
MoA 58/2015, that is, th e version Brazil refers to in its first written submission. We then move to 
examine the relevant provisions in MoA 34/2016 (the most recent legal instrument) . 
7.5.2   Analysis of the intended use requirement as enacted through MoA  58/2015     
7.179.   In this section we co nsider the intended use requirement as enacted through MoA 
58/2015. Brazil contends that this measure is inconsistent with Article XI of the GATT 1994, 
Article  III:4 of the GATT 1994 , and Article 4.2 of the Agreement on Agriculture .286 Indonesia, as a 
thresh old matter, submits that only Article III:4 of the GATT 1994 is applicable.287 In respect of 
that provision Indonesia contends that there are no like products and, therefore, that there is no 
less favourable treatment.288 Alternatively, Indonesia argues that t he measure is justified under 
Article XX(b) and (d) of the GATT 1994.289      
7.5.2.1   Measure at issue and jurisdiction  
7.180.   We refer to Table 3 above, which sets out Article 31 of MoA 58/2015. According to this 
provision, imported frozen chicken may only be sold to hote ls, restaurants, caterings and 
industries. In addition, processed products may also be sold to modern markets. Pursuant to  
Article 29(j) of MoA 58/2015  (see Table 3 above ), these intended uses are explicitly indica ted in 
the MoA  Import Recommendation .290 Article 38(e) provides for sanctions if an importer breaches 
Article  31. The sanctions consist in a revocation of the recommendation, denial of the next 
recommendation application and proposal to the MoT to revoke the  import approval.  
7.181.   We note that these provisions differ slightly from the intended use requirement as laid 
down in the previous legal instrument, namely MoA 139/2014. In particular, the sale in modern 
markets was also allowed for (non -processed) chicken me at in the previous version. In our view, 
this does not affect our jurisdiction. As discussed above, in line with the Appellate Body's 
jurisprudence in Chile – Price Band System , we consider that our terms of reference cover 
subsequent amendments to the mea sure at issue so long as that measure in essence remains the 
same.291 The intended use requirement consists in limiting allowed uses in the market; this 
essence has remained the same. As a matter of fact, the most important use that the measure 
does not incl ude, as enacted through either set of legal instruments, is the use in traditional 
markets.  Both parties agree that this is where most Indonesians buy their chicken.292 We therefore 
consider that the intended use requirement, as laid down in MoA 58/2015, is within our terms of 
reference.  
                                                
286 Brazil's first written submission, paras. 195-199, 224-227, and 268-293. 
287 Indonesia's first written submission, paras. 81-89; see also para. 7.59 above.  
288 Indonesia's first written submission, paras. 144 -172. 
289 Indonesia's first written submission, paras. 179 -217. 
290 See example of Import Recommendation b y the Minister of Agriculture for beef from New Zealand in 
December 2015 (Exhibit IDN -88) and Import Recommendation by the Minister of Agriculture for beef from 
Australia (Exhibit IDN -92(b)).  
291 See section 7.2.4.2  above.  
292 See section 7.3 above, in particular, para. 7.101  WT/DS484/R  
 
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  7.5.2.2   Whether Article III:4 of the GATT 1994 is applicable  
7.182.   As noted above, Brazil raises claims under both Article XI of the GATT 1994 and Article 4.2 
of the Agreement on Agriculture , as well as under Article III:4 of the GATT 199 4. Thus, Brazil 
challenges the intended use requirement both as a border and as an internal measure.  
7.183.   Indonesia argues that the intended use requirement can only be challenged under 
Article  III:4 of the GATT 1994.293 Indonesia submits that a measure is eithe r an internal measure 
or a border measure but cannot be both at the same time.294 Indonesia thus considers that these 
provisions are mutually exclusive. According to Indonesia, because it is applying, to like domestic 
products, a measure equivalent to the in tended use requirement, the intended use requirement is 
an internal measure.295   
7.184.   According to Brazil, the intended use requirement has effects both at the border and 
subsequently (i.e. after importation), when the good is offered for sale in the Indonesian market. 
In Brazil's view, therefore, to the extent the measure affects goods at the border, the measure 
must be assessed under Article XI, and to the extent the measure affects goods after passing 
through the border, the measure must be examined under Arti cle III:4.296 Brazil also argues that 
there is no equivalent measure that applies to domestic chicken.297 
7.185.   We observe, first of all, that while the intended use requirement may have different 
effects, what Brazil identifies as the problematic aspect of the meas ure, i.e. the source or cause of 
the different effects, is one and the same, whether presented under Article III:4 or under Article XI 
and Article 4.2. This is thus different from other disputes, where different aspects of a measure 
were separately challen ged under different provisions, as causing distinct effects relevant to the 
provisions cited.298       
7.186.   Next, we note that both parties, albeit for different reasons, take the view that Article III:4 
is applicable and have presented arguments under this provi sion. We observe that the question 
whether Article III:4 applies to the exclusion of Article XI of the GATT 1994 and Article 4.2 of the 
Agreement on Agriculture , only becomes relevant if and when Article III:4 is applicable to the 
measure at issue. We ther efore examine whether the intended use requirement as laid down in 
MoA 58/2015, falls within the scope of Article III:4.  
7.187.   Article III: 4 states as follows:  
The products of the territory of any contracting party  [Member]  imported into the 
territory of any o ther contracting party  [Member]  shall be accorded treatment no less 
favourable than that accorded to like products of national origin in respect of all laws, 
regulations and requirements affecting their internal sale, offering for sale, purchase, 
transport ation, distribution or use . The provisions of this paragraph shall not prevent 
the application of differential internal transportation charges which are based 
exclusively on the economic operation of the means of transport and not on the 
nationality of the  product.  (emphasis added)  
7.188.   Thus, Article III:4 applies to "laws, regulations and requirements affecting their internal 
sale, offering for sale, purchase, transportation, distribution or use ".299 However, this scope 
                                                
293 Indonesia's first written submission, para. 81.  
294 Indonesia's first written submission, paras. 84. See also Indonesia's response to Panel que stion 
No. 51. 
295 See Indonesia's opening  statement at the first meeting of the Panel,  para. 45. See also Indonesia's 
first written submission, para. 169, and second written submission, paras. 37 -38. 
296 Brazil's opening  statement at the first meeting of the P anel, paras. 43, and 45-46. See also Brazil's 
response to Panel question No. 51.  
297 Brazil's second written submission, para. 41.  
298 See e.g. Panel Reports, Argentina – Import Measures , paras. 6.132 -6.135. In this dispute, different 
aspects of the TRRs measu re were challenged separately under Article XI:1 and Article III:4 of the GATT 1994 . 
See also Panel Report, India – Autos , para. 7.297. In this dispute, the complainants challenged distinct aspects 
of the trade balancing condition. In contrast to the above  two disputes, in the current dispute, although 
different effects of the measure are alleged, only one aspect of the measure is alleged to be problematic.  
299 We discuss further elements of Article III:4 in section 7.5.3.3.3.2  below. WT/DS484/R  
 
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  defining element of Article III:4 is qualif ied through the interpretative note Ad Article III which 
states:  
Any internal tax or other internal charge, or any law, regulation or requirement of the 
kind referred to in paragraph 1  which applies to an imported product and to the like 
domestic product and is collected or enforced in the case of the imported product at 
the time or point of importation, is nevertheless  to be regarded as an internal tax or 
other internal charge, or a law, regulation or requirement of the kind referred to in 
paragraph 1, an d is accordingly subject to the provisions of Article III.  (emphasis 
added)  
7.189.   We read this qualification300 to mean that a measure that affects the internal sale, offering 
for sale, etc., when enforced at the time or point of importation, only comes under Arti cle III:4 if it 
applies to an imported product and the like domestic product. In other words, measures which 
only apply to imported products affecting their internal sale, etc., but do not apply to like domestic 
products, do not fall under Article III:4.  
7.190.   There are thus three questions that we need to address. The first question is whether the 
intended use requirement is a law, regulation or requirement affecting the internal sale, offering 
for sale, purchase, transportation, distribution or use of imported chicken meat. We consider that 
this is the case and do not understand  either party to dispute the point.  
7.191.   The second question is whether the intended use requirement is a measure that is 
enforced at the time or point of importation. We understand the relev ant literal meaning of 
"enforce" in this context to be "to give legal force".301 The question, therefore, is whether the 
intended use requirement is given legal force at the time or point of importation. As noted above, 
the allowed uses are spel t out in the MoA Import Recommendation. The imposition of sanctions in 
case of non -observance of the requirement directly affects the possibility to import. In our view, 
the intended use requirement is akin to a condition, on which importation depends. We therefore 
consider this to be a case of enforcement "at the point of importation".  
7.192.   The third question is whether the measure applies to imported products and to like 
domestic products. The panel in EC – Asbestos took the view that this does not mean that the 
"identica l" measure must apply to like domestic products; rather, that there is an equivalent  
measure for like domestic products.302 We agree with this view. The very fact that one is enforced 
at the border and the other in the market may imply  that measures are not identical. However, 
what matters is whether they are designed to achieve the same result.303     
7.193.   Indonesia submits that there is an equivalent measure that applies to domestic chicken 
meat, pointing to certain provisions in MoA  Decree 306/1994.304 As stated in  its title, t he Decree 
governs the slaughtering and handling of poultry meat and its by -products.305 It provides in Article 
22(c) that a place for selling poultry meat in the market must "be provided with a table having a 
porcelain covered or other non -corrosive and smooth material for selling fresh poultry meat and be 
equipped with cooler facilities (refrigerator and or freezer) for selling chilled -fresh and or frozen 
poultry meat ". Thus, frozen poultry meat cannot be sold in markets, including traditional w et 
markets, unless there is a cold storage facility. Similarly, Article 23 of the Decree provides that 
frozen meat and chilled -fresh poultry meat which is offered for sale in meat shops and 
                                                
300 We note that the Appellate Body, in the context of Article III:2, described the relationship between 
the AD Note and that provision as follows: "Article III:2 second sentence, and the accompanying  Ad Article 
have equivalent legal status in that both  are treaty language which was negotiated and agreed at the same 
time. The  Ad Article does not replace or modify the language contained in  Article III:2 second sentence, but, in 
fact, clarifies its meaning. Accordingly, the language of the second sentence and the  Ad Article must be read 
together in order to give them their proper meaning ." See Appellate Body Report, Japan – Alcoholic Beverages  
II, p. 24, DSR 1996:I, 97 at 116.  
301 The Online Oxford English Dictionary defines the word "enforce" as "to give leg al force". 
<http://www.oed.com/view/Entry/62160#eid5398975 > (last accessed on 16 January 2017).  
302 Panel  Report , EC – Asbestos , paras. 8.91-8.95. 
303 See Panel Report, EC – Asbestos , para. 8.92. ( noting that "the regulations applicable to domestic and 
foreign products lead to the same result" .) 
304 MoA Decree 306/1994 of the Minister of Agriculture concerning Slaughtering of Poultry and Handling 
of Poultry Meat and its By -products  (MoA Decree 306/199 4) (Exhibit  IDN-83). 
305 We note that the Decree applies to chicken meat, not differentiating whether domestic or imported.  WT/DS484/R  
 
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  supermarkets must be stored in cold storage. Generally, therefore,  domestic frozen and chilled 
products are subject to a cold storage requirement when sold in the domestic market.  
7.194.   In comparing these provisions to the intended use requirement, we note that the  latter 
does not prescribe any cold storage requirement. Instea d the intended use requirement  effectively 
prohibits  the sale in traditional markets whether or not they have cold storage facilities.  Thus, the 
aim and content of the intended use requirement  are substantially different from those of MoA 
Decree 306/1994.306 We, therefore, find that there is no measure applying to domestic products 
that is equivalent to the intended use requirement as enacted through MoA 58/201 5.    
7.195.   Given the absence of an equivalent measure that applies to domestic like products, we 
conclude  that the intended use requirement cannot be considered an internal measure for the 
purposes of Article III:4 of the GATT 1994. Article III:4, therefore, does not apply. As noted 
above, the question whether Article III:4 applies to the exclusion of Article  XI of the GATT 1994 
and Article 4.2 of the Agreement on Agriculture , therefore, is not relevant.  
7.5.2.3   Whether the intended use requirement is inconsistent with Article XI of the 
GATT 1994  
7.196.   We next turn to Brazil's claim under Article XI of the GATT 1994. We no te that Indonesia's 
argument that Article XI does not apply was based on the premise that Article III:4 would apply. 
As seen above, this is not the case. In the alternative, Indonesia argues that Article 4.2 of the 
Agreement on Agriculture  is lex specialis  and on this ground maintains that Article XI does not 
apply.307 As seen in section 7.2.3.2 above , we disagree with this view and have decided to 
examine Article XI before Article 4.2 throughout this report.  
7.197.   We have discuss ed Article XI in section 7.4.2.2 above  with regard to  the positive list 
requirement . As we did with the positive list requirement , we structure our analysis of the 
intended use requirement around the following two questions: (1 ) Whether the intended use 
requirement is a prohibition or restriction on the importation of chicken meat and chicken 
products, and (2) whether it is made effective through quotas, import or export licences or other 
measures.    
7.198.   As regards the first questi on, Brazil submits that the intended use requirement is a 
"restriction". Brazil points to the "restricted access of imported chicken meat and chicken products 
to the most important consumer markets in Indonesia, adversely affecting the competitive 
opportun ities of the exported products ".308 
7.199.   The Appellate Body identified the meaning of the term "restriction" as "[a] thing which 
restricts someone or something, a limitation on action, a limiting condition or regulation" and 
concluded from it, that it is "general ly, … something that has a limiting effect ".309 Furthermore, in 
a contextual reading of the title of Article XI310, the Appellate Body concluded that the limiting 
effect must be "on the quantity or amount of a product being imported".311  
7.200.   As we noted above, the intended use requirement operates as a condition on the 
importation of chicken meat and chicken products. The importer must commit to not selling in 
modern (chicken meat) and in traditional markets (chicken meat and processed chicken) in order 
to obtain an  MoA Import Recommendation and ultimately an MoT Import Approval. Breach of this 
condition results in the imposition of strict sanctions, including not permitting the importer to 
import any chicken meat whatsoever. Thus, while quantities of imported produc ts are not directly 
regulated, the way the condition operates directly impacts on the volume imported: With more 
                                                
306 We also note that they have differing scopes insofar as the intended use requirement, de jure , 
applies to any kind of imported chick en, including fresh chicken, whereas the cold storage requirement under 
MoA Decree 306/1994 only applies to chilled and frozen chicken.  
307 Indonesia's first written submission, para. 178.  
308 Brazil's first written submission, para. 195.  
309 Appellate Body Repo rts, China – Raw Materials , para. 319  (quoting from the Shorter Oxford English 
Dictionary , 6th edn, W.R. Trumble, A. Stevenson (eds) (Oxford University Press, 2007), Vol. 2, p. 2553 ). See 
also Appellate Body Report s, Argentina - Import Measures , para. 5.21 7. 
310 Article XI is entitled "General Elimination of Quantitative Restriction s". 
311 Appellate Body Reports, China – Raw Materials , para. 320.  WT/DS484/R  
 
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  than 70 % of the market de jure  inaccessible, "importers are not free to import as much as they 
desire or need".312 Thus, the possibilities for e xport to Indonesia are reduced from the outset.313 
We, therefore, find that the intended use requirement is a "restriction" on imports within the 
meaning of Article XI of the GATT 1994.     
7.201.   We turn to the second question, namely whether the restriction is ma de effective through 
quotas, import or export licences or other measures. We recall that the intended use requirement 
operates as a condition upon importation. Thus, the issuance of an MoA Import Recommendation, 
which in turn, is necessary to obtain an MoT  Import Approval, is directly dependent on the 
importer committing to the allowed uses. As noted previously, the MoT Import Approval operates 
as a licence in that it constitutes the permission required to import chicken meat and chicken 
products into Indon esia.314 Thus, we consider that the restriction is made effective through a 
licence.  
7.202.   Since both questions are answered in the positive, we, therefore, find that the intended 
use requirement  as enacted through MoA 58/2015  is inconsistent with Article XI of t he GATT 1994.  
7.5.2.4   Whether the intended use requirement is justified under Article XX(b) or (d)  of 
the GATT 1994  
7.203.   Indonesia raises a defence under Article XX(b) and (d) of the GATT 1994, essentially 
arguing that the intended use requirement serves to ensure that  frozen chicken is not sold in 
markets without proper refrigeration facilities.315 Brazil rejects the defence submitting that 
Indonesia has not met its evidentiary burden.316 
7.204.   We have discussed  Article XX in section 7.4.2.3 above  with regard to  the positive list  
requirement . As we noted in that section , an analysis under Article XX requires us to proceed in 
two steps . We first need to assess whether the measure is provisionally justified under the specific 
sub-paragraphs identifie d by the respondent – here subparagraphs (b) and (d). If that is the case, 
we go on to examine whether the measure satisfies the requirements of the chapeau of Article XX.  
7.205.   Furthermore, we recall that the burden of proof in respect of an exception  generall y is on 
the responding party.317 
7.5.2.4.1   Article XX(b)318 
7.206.   Turning to the first step in our analysis under Article XX, we examine whether the intended 
use requirement is provisionally justified under subparagraph (b) of Article XX. Subparagraph (b) 
covers measures that  are "necessary to protect human, animal or plant life or health ". 
7.207.   Indonesia argues that the intended use requirement serves to prevent a risk to human 
health in terms of food safety which, it argues, arises from improper thawing  and re -freezing  of 
                                                
312 Panel Reports, Argentina – Import Measures , para. 6.256.  
313 See similar situation in  Panel Reports, Argentina – Import Measures , para. 6.256.  
314 See para. 7.117  above.  
315 Indonesia's first written submission, paras 188 -216. See in particular, para. 206.  
316 Brazil's  second written submission, para s. 58-77. 
317 See para. 7.122  above . 
318 We note that Indonesia's defence under Article XX(b) raises a food safety issue. We observe that the 
SPS Agreement, according to its Preamble, "elaborates rules for the application of the provisions of the GATT 
1994 which relate to the  use of sanitary or phytosanitary measures, in particular the provisions of Article 
XX(b)". Brazil, in its panel request, made a number of claims  under the SPS Agreement, which it, however, did 
not develop in its submissions. In its response  to a question from the Panel , Brazil took the view that it would 
have been for Indonesia to "claim" that the challenged mea sures are SPS (or TBT) measures (see  Brazil's 
response to Panel's question No.1 ). We do not share the view that it would be for the responding part y to 
make a "claim" that a measure is in the nature of an SPS measure.  It is for a complaining party to raise claims 
under the specific covered agreement s, not for the responding party to "invoke" such agreements. In our view, 
therefore, in the absence of evidence and arguments submitted by Brazil, we cannot address any SPS claims, 
even if we were to consid er that they are applicable . See Appellate Body Report, US – Gambling , para. 281  
(citing Appellate Body Report Chile - Price Band System , para. 173) . WT/DS484/R  
 
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  previou sly frozen chicken.319 Brazil considers that there is no meaningful connection between the 
measure and its purported objective and that the measure is not necessary .320 
7.208.   There are two elements that we need to examine, namely whether the intended use 
requirement  (1) pursues a human health objective, and (2) is necessary to achieve that objective.    
7.5.2.4.1.1   Whether the intended use requirement pursues a human health objective  
7.209.   As regards the first element, we follow previous panels in proceeding in two steps in the 
examin ation of this element.321 Thus, we first establish whether Indonesia has demonstrated that 
there is a health risk. If such a risk is found, we proceed to examine whether the objective of the 
intended use requirement is to reduce that risk.    
Whether Indones ia has demonstrated that there is a health risk  
7.210.   Indonesia's argument generally is that freezing and thawing increases microbial growth 
and facilitates product deterioration.322 While Indonesia's argument initially emphasized the issue 
of re -freezing thawed chicken,323 its subsequent submissions focus on the issue of improper 
thawing, and in particular  thawing in tropical temperatures as these are the temperatures found  in 
Indonesia's outdoor traditional markets .324 In support of its argument, Indonesia submits t he 
following evidence:  
a. A scientific publication on the "Differentiation of Deboned Fresh 
Chicken Thigh Meat from the Frozen -Thawed One Processed with 
Different Deboning Conditions".325 (Sik Bae et al. study)  
b. A scientific publication regarding the "Eff ects of Freeze -Thaw Cycles on 
Lipid Oxidation and Myowater in Broiler Chicken".326 (Ali et al. study)  
c. Advice that can be found on the website of the US Department of 
Agriculture.327 The advice directly refers to the risk of foodborne illnesses 
by leaving ch icken meat out to thaw for more than two hours at room 
temperature.  
d. A reference to an EU Regulation on the hygiene of foodstuffs, which 
requires food businesses to undertake thawing "of foodstuffs ….. in such a 
way as to minimize the risk of growth of pathogenic microorganisms or 
the formation of toxins in the foods" and stipulates that "[d]uring 
thawing, foods are to be subjected to temperatures that would not result 
                                                
319 See Indonesia's second written submission, paras. 138 -139. 
320 See Brazil's opening  statement at the first meeting  of the Panel , para. 61; and Brazil's second written 
submission, para. 62 . 
321 Panel Report s, Brazil – Retreaded Tyres , paras. 7.42 and 7.43; and EC – Asbest os, para. 8.170.  
322 Indonesia's first written submission , para. 191.  
323 See Indonesia's first written submission, para. 134.  
324 See Indonesia's  opening statement at the first meeting of the Panel, para. 66;  second written 
submission, para. 139 ; opening statement at the second meeting of the Panel, para. 42; comment on Brazil's 
response to Panel question No. 85, paras. 41 -44; comment on Brazil's response to Panel question No.  90, 
paras. 56 -60; and comment on Brazil's response to Panel question No. 90,  para. 68 . 
325 Y. S. Bae, J. C. Lee, S. Jung, H. Kim, S.Y. Jeon, D.H. Park, S. L and C. Jo, Differentiation of Debone 
Fresh Chicken Thigh Meat from the Frozen -Thawed one Processed with Different Deboning Conditions, Korean 
Journal for Food Science of Animal Resources, Feb. 2014, at 1 ( Sik Bae et al. study )(Exhibit  IDN-64/IDN -69). 
326 S. Ali, N. Rajput, C. Li, W. Zhang and G. Zhou, Effect of Freeze -Thaw Cycles on Lipid Oxidation and 
Myowater in Broiler Chickens, 18(1) Brazilian Journal of Poultry Science 35 (201 6) (Ali et al. study) (Exhibit 
IDN-56). 
327 United States Department of Agriculture, "The Big Thaw – Safe Defrosting Methods for Consumers"  
(Exhibit IDN -85). WT/DS484/R  
 
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  in a risk to health.328 The regulation does not specify what temperature 
that is.329, 330 
7.211.   Brazil contests the existence of a risk arising from thawing frozen chicken at outside 
temperatures. It points to the food safety benefits of freezing meat331 and submits that "the 
freezing process the imported chicken undergoes […] is capable of ensuring that  the meat will 
remain fresh for a longer period, as compared to meat that has never been frozen".332 As for 
multiple freezing, Brazil considers that the issue of re -freezing bears no relation to the measure at 
issue or can be addressed through other measures .333 In support of its position Brazil submits two 
scientific publications:  
a. A 2015 publication in the Brazilian Journal of Poultry Science discussing the "Meat 
Quality of Chicken Breast Subjected to Different Thawing Methods" ("Oliveira et al.  
paper").334   
b. A 2005 Research Note in the (US) Journal of Food Protection on the " Growth of 
Salmonella Serovars, Escherichia coli O157:H7  and Staphylococcus aureus during 
Thawing of Whole Chicken and Retail Ground Beef Portions at 22 and 30˚C" ("Ingham et 
al. research note") .335 
7.212.    We note that it is uncontested between the parties that the traditional markets currently 
do not (or only marginall y) have cold storage facilities available.336 In the absence of such 
facilities, frozen meat would have to be sold thawing at tropical temperatures. It is in this factual 
context that the parties discuss the above risks. What they do not discuss is the situa tion 
prevailing in what the relevant legislation refers to as "modern markets". Our understanding is 
that modern markets usually do have cold storage facilities and thus, the above discussion is not 
pertinent to that  situation. A first observation to be ma de, therefore,  is that Indonesia does not 
put forward arguments to justify the intended use requirement to the extent it applies to modern 
markets.337    
7.213.   Turning to the risks discussed in the context of traditional markets, we note that the issue 
of re-freezing, only arises if and when meat has been allowed to thaw in the first place . Our focus 
at this point of the analysis, therefore, is to establish whether Indonesia has demonstrated that a 
risk to human health arises from leaving chicken meat to thaw outsi de at tropical temperatures.  If 
it has, we do not need to discuss whether re -freezing constitutes an (additional) risk.  We observe 
that the above -mentioned scientific publication s submitted by Indonesia do not directly discuss 
food safety risks arising fro m thawing frozen meat at tropical temperatures.  Both studies focus on 
other topics and all the thawing methods applied during these studies were carried out in 
                                                
328 Regulation EC No. 852/2004 of the European Parliament and of the Council on the Hygiene of 
Foodstu ffs of 29 April 2004 (Exhibit IDN -84). See in particular, Chapter IX, para. 7 . 
329 We note however that Article 1(c) of the regulation states:  
Article 1  
Scope  
1. This Regulation lays down general rules for food business operators on the hygiene of 
foodstuffs , taking particular account  of the following principles:  
… 
(c) it is important, for food that cannot be stored safely at ambient temperatures, particularly frozen 
food, to maintain the cold chain;  
330 Indonesia also submitted two exhibits (Exhibit IDN -150 an d IDN -151) referring to relevant Brazilian 
legislation. However, Indonesia did not submit an English translation of these exhibits . 
331 See Brazil's  second written submission, para. 62; and opening  statement at the second meeting  of 
the Panel , para. 57. See also Brazil's response to Panel question No. 90.  
332 See Brazil’s second written submission, para. 62 . 
333 See Brazil’s second written submission, paras. 62 -65. 
334 OLIVEIRA et al (2015), Meat Quality of Chicken Breast Subjected to Different Thawing Methods. 
Brazilian Journal of Poultry Science. v.17, n.2, p. 165 -172 (Oliveira  et al. paper) . (Exhibit BRA -57). 
335 INGHAM et al (2005), Growth of Salmonella Serovars, Escherichia coli O157:H7, and Staphylococcus 
aureus during Thawing of Whole Chicken and Retail Ground Beef Portions at 22 and 30 °C. Journal of Food 
Protection, v. 68, n. 7, pp. 1457 –1461 (Ingham et al. research note ). (Exhibit BRA -58). 
336 Brazil's opening  statement at the second meeting  of the Panel , para. 16; Indonesia's first written 
submission, para. 130 . However, see discussion on the possibilities to put cold storage facilities on those 
markets, para. 7.267  below . 
337 As noted in para. 7.200  above , only preserved and prepared chicken meat can be  sold in modern 
markets, carcass cannot.  WT/DS484/R  
 
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  controlled temperatures below 10° C rather than in room or tropical temperatures.338 We note, 
howe ver, that the Ali et al.  study  refers to thawing in the refrigerator as the "most common and 
widely preferred method of thawing frozen food".339 The USDA advice, in contrast, is directly 
pertinent to the risk discussed. As noted above, it refers to the risk of foodborne illnesses by 
leaving chicken meat out to thaw for more than two hours at room temperature. We are mindful 
that the website publication is not a scientific publication itself. However, as  official  expert advice 
from a  government al source , we co nsider that it has some evidentiary weight. Moreover, the 
advice is corroborated not only by the above -mentioned reference in the scientific publication340, 
but more importantly and more explicitly by the two scientific publications that Brazil itself has 
submitted. The Oliveira et al. paper, in several places, refers to this view citing other scientific 
publications , as well as a relevant legal standard in Brazilian law.341 Furthermore, as we 
understand it, the very purpose of the second paper, namely the Ingh am et al. research note, is to 
challenge that mainstream view which it describes as "longstanding advice from experts".342 Thus, 
in setting out to contest it, the Ingham et al.  research note, proves that the currently prevailing 
view in science is that there  is a risk in thawing frozen meat at room temperatures  and, therefore, 
a fortiori at tropical temperatures.  
7.214.   Under these circumstances, we consider that Indonesia has demonstrated the existence of 
a risk arising from thawing frozen chicken at tropical tempe ratures. We further consider that while 
Brazil has submitted a scientific publication demonstrating that there is no such risk, that 
publication, at best, represents a divergent  view.343 The existence of a divergent view would not 
prevent Indonesia from rely ing on the above view which, as the evidence shows, happens to be 
the currently prevailing view in science.344 Brazil's reference to the Ingham et al.  research note, 
therefore, does not suffice to rebut Indonesia's assertion that there is a risk to human hea lth. 
7.215.   We, therefore, find that Indonesia has established that there is a risk to human health 
arising from thawing meat at tropical temperatures.  
Whether the objective of the intended use requirement is to reduce that risk  
7.216.   We next address the question wheth er the objective of the intended use requirement is to 
reduce that risk.  
7.217.    Indonesia states that "the intended use requirement was designed to ensure that only 
safe imported  chicken is sold in markets facilities" .345 For Indonesia this means "that frozen 
chicken cannot be sold in markets without proper cold storage ".346 
7.218.   Brazil argues "that there is no meaningful connection between limiting the sale of frozen 
chicken to places with cold chain facilities and the objective of Ꞌeliminating the risk of [frequent] 
freezing and thawing products for sale to consumers.Ꞌ"347 
                                                
338 The Sik Bae et al. study focuses on the quality of three categories of deboned chicken thigh meat: 
(a) slaughtered and deboned in the same plant; (b) slaughtered, deboned, frozen and thawed in the same 
plant; and (c) slaughtered in a plant, deboned in a different plant, but then transferred to the original plant, 
see Sik Bae et al. study (Exhibit  IDN-64/IDN -69). The Ali et al. study focuses on the influence of freezing -
thawing cycles on lipid oxidation and myowater  contents and distribution in chicken breast meat, see Ali et al. 
study (Exhibit IDN -56). 
339 See Ali et al. study  (Exhibit IDN -56), p. 36  
340 See fn 327. 
341 See Oliveira  et al, paper  (Exhibit BRA -57), pp. 167 -168. 
342 See Brazil’s r esponse to Panel question No. 90, citing Ingham et al. research note  (Exhibit BRA -58). 
343 We do not take a view on the scientific value of this research note.  
344 We refer to the Appellate Body's jurisprudence in EC – Hormones  which we read to suggest that a 
Member may base its measure on scientifically sound evidence, no matter whether that evidence represents a 
mainstream scientific view or a divergent/minority view. In other words, if there are mutually contradictory but 
equally respectable scientific opini ons on a given question, a Member is free to base its measure on either 
opinion , see Appellate Body Report s, EC – Hormones , para. 194 ; and US – Continued Suspension  / Canada – 
Continued Suspension , para.  591. 
345 Indonesia's first written submission, paras. 189 and 207  (emphasis original) . 
346 Indonesia's first written submission, para. 189.  
347 Brazil's second written submission, para. 62.  WT/DS484/R  
 
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  7.219.   We note that the task of ascertaining the objective pursued by a measure under 
Article  XX(b) is similar to the task in Article XX(a) or (d). We, therefore, consider the case law 
referred to above in our  analysis on Article XX(d) to be relevant also here.348  
7.220.   As noted above, the Appellate Body has described the relevant test under Article XX(d) as 
"an initial examination of the relationship between the inconsistent measure and the relevant laws 
or regulatio ns" which requires a panel to "scrutinize the design of the measures sought to be 
justified".349 The Appellate Body further clarified that the standard for ascertaining whether such a 
relationship exists is  whether the assessment of the design of the measure  reveals  that the 
measure is not incapable of securing compliance with the relevant laws and regulations in 
Indonesia.350 Finally, the Appellate Body has described this test as "not… particularly demanding" , 
in contrast to  the requirements of the next step o f the analysis, namely the necessity test.351   
7.221.   Applied mutatis mutandis to Article XX(b), we consider that our task is to ascertain 
whether the measure is not incapable of reducing the identified risk to human health.  
7.222.   Applying this standard to the intended  use requirement, we observe that it completely 
prevents the sale of imported frozen chicken in traditional markets. To the extent that no frozen 
chicken can be sold in such markets, no risks from thawing such chicken can possibly arise. 
Viewed this way, a pplying the above standard, the measure must be considered "not incapable" of 
achieving the objective of protecting human health. That it also prevents the sale of frozen chicken 
that is perfectly safe, is a question t hat matters to our necessity  analysis . On this basis, we find 
that there is a relationship between the intended use requirement and the objective  of protecting 
human health .       
7.5.2.4.1.2   Whether the intended use requirement is necessary to protect human health  
7.223.   Having established that the intended us e requirement pursues the objective of protecting 
human health, we now address the second element of the test under Article XX(b), namely 
whether the measure is necessary to achieve that objective.  
7.224.   As seen above, the "necessity" test involves a process of "weighing and balancing" a series 
of factors, including (1) the importance of the objective, (2) the contribution of the measure to 
that objective, and (3) the trade -restrictiveness of the measure.352 In most cases, (4) a 
comparison between the challenged me asure and possible less trade -restrictive alternatives should 
then be undertaken.  The Appellate Body has also emphasized that "a complaining party must 
identify any alternative measures that, in its view, the responding party should have taken".353 
7.225.   We first observe that the objective pursued through the intended use requirement, as 
noted above, is the protection of human health, an interest which Indonesia considers of the 
highest importance. 354 We agree and do not understand Brazil to disagree.  
7.226.   Next we consi der the contribution that the intended use requirement makes to protecting 
that interest. As noted above, the intended use requirement effectively reduces the risks arising 
from thawing chicken meat at tropical temperatures in the traditional market to a s ignificant 
degree , since it does not allow any frozen chicken to reach that market. Viewed this way, the 
intended use requirement makes a n important  contribution to protecting human health. We 
observe, however, that the specific risk to human health associ ated with thawing meat at tropical 
temperatures, does not arise, for example if frozen chicken remains frozen by being kept, where 
                                                
348 In Colombia – Textiles , the Appellate Body held that while the terms "to protect" under paragraph 
(a) and "to secure compl iance" under paragraph (d) of Article XX differ both terms involve establishing the 
existence of a relationship between the measure and those objectives. See Appellate Body Report, Colombia – 
Textiles , para s. 5.126 -5.127 . 
349 Appellate Body Report, Argentina  – Financial Services , para. 6.203.  
350 Appellate Body Report, Colombia – Textiles , para. 5.68 . 
351 Appellate Body Report, Colombia – Textiles , para. 5.70.  
352 Appellate Body Reports, EC – Seal Products , para. 5.169.  
353 Appellate Body Reports, EC – Seal Products , para. 5.169  (citing Appellate Body Report, US – 
Gambling, paras. 309 -311). 
354 Indonesia's first written submission, para. 191.  WT/DS484/R  
 
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  available, in cold storage. For such perfectly safe chicken, the intended use requirement does not 
make any contribution to e nsuring that (only) safe chicken is sold in the market.355  
7.227.   With these considerations in mind, we turn to the third factor, which is the trade -
restrictiveness of the measure. As seen above, the intended use requirement operates generally as 
a trade restricti on directly impacting the volume of chicken that may be imported into 
Indonesia.356 This restriction most notably affects access to modern markets and traditional 
markets, which are altogether excluded from the allowed uses. In terms , specifically,  of access  to 
traditional markets to which Indonesia's defence under Article  XX(b) exclusively relates , the 
measure operates as a trade restricti on to the highest degree.357 As the Appellate Body made clear 
in Brazil – Retreaded Tyres , such trade -restrictiveness weigh s heavily against considering a 
measure necessary. Depending on the circumstances, however, a material contribution made by 
the measure may still outweigh that trade -restrictiveness.358 
7.228.   As seen above, we have some doubts whether the intended use requirement can be seen 
as making a n important  contribution. We acknowledge that it significantly reduces the risks arising 
from thawing chicken at tropical temperatures and, thus, materially contributes to preventing that 
risk. In doing so, however, the intended use requirement prevents the sale of frozen chicken in 
traditional markets , including of chicken that would not present the above risk, and in particular, 
chicken that is being kept frozen in cold storage, where available. In respect of such safe chicken 
the m easure makes no contribution to achieving any objective. Put differently, the measure 
"overshoots" its intended objective, which, as Indonesia states, is to "ensure that only safe 
imported  chicken is sold in markets facilities".359 
7.229.   However, we are mindful th at the Appellate Body cautioned panels not to consider as a 
pre-determined legal standard that a measure would have to make a "material contribution" in 
order for it to be necessary, despite being trade -restrictive in the extreme. The Appellate Body 
emphas ized in this respect that all "dimensions" of necessity will have  to be explored, including 
that of less trade -restrictive alternatives.360 We, therefore, turn to consider Brazil's arguments 
regarding less trade -restrictive alternatives.  
7.230.   In terms of less tra de-restrictive alternatives, Brazil first pointed to labelling requirements, 
rules regulating the thawing of frozen chicken to be offered for sale361, and restricting the 
possibility of refreezing previously thawed chicken for sale in traditional markets.362 In its response  
to a question from the Panel, Brazil furthermore presented the following list:  
(a) a requirement limiting the number of times a product may undergo a 
freezing -thawing cycle;  
(b) requirement limiting the shelf -life of products that underwent  more than one 
freezing -thawing cycle;  
                                                
355 We also note, in this context, an argument that Brazil raises and which we understand to relate to 
the issue of necessity. Braz il refers to an incident that the United States mentioned in its oral statement, para. 
7. As stated by the United States and later confirmed by Indonesia in its response to a question from Brazil, 
some 9000 tons of frozen meat were authorized to be sold in  Indonesia's traditional markets in June 2016. 
Brazil considers that "this is evidence enough that the measure at issue is not necessary to fulfil Indonesia's 
policy objective, as the government itself does envisage some flexibility in the enforcement of t he legislation". 
(Brazil's second written submission, para. 67.) We note that whether the chicken was sold frozen or in a 
thawing state is disputed between the parties. We note, furthermore, that Indonesia refers to exceptional 
circumstances in which the d ecision was made to authorize the sale (see Indonesia's response to Brazil's 
question No. 2). In our view, a one -time authorization, per se, cannot prove whether a measure is "necessary" 
in the context of Article XX. We do not exclude that it could be a re levant factor in a necessity analysis. 
However, in order to take this element into account, a careful consideration of the specific circumstances would 
be required. We consider that we do not have enough facts on hand to carry out such an examination. 
Howe ver, this issue can be left open, if we find that there is no necessity, based on other reasons.  
356 See section 7.5.2.3  above.  
357 See also Panel Report, Brazil – Retreaded Tyres , para. 7.211.  
358 Appellate Body Report, Brazil – Retreaded Tyres , para. 172.  See also Appellate Body  Reports  EC- 
Seal Products , para. 5.215.  
359 See Indonesia's first written submission, para. 189 . 
360 Appellate Body Report s, EC – Seal Products , para. 5.214.  
361 Brazil's opening statement at first meeting of the Panel,  para.62.  
362 Brazil's second written submission, para. 64 . WT/DS484/R  
 
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  (c) a requirement introducing guidelines for methods of thawing, especially for 
room-temperature thawing;  
(d) a requirement introducing a mandatory good hygienic practice (GHP) plan 
for establishment selling chicken meat;  
(e) provision of information to consumers that the product was previously 
frozen and should not be refrozen.363 
 
7.231.   To us, the above proposed alternative measures can be divided in two categories. First, 
those that (potentially) address Indonesia's concer n regarding the thawing of chicken meat at 
tropical temperatures in the market, namely (c) and (d) above. Second, those that address 
potential concerns regarding the refreezing of previously frozen chicken, namely (a), (b) and (e) 
above.  
7.232.   Turning to the fi rst category, in assessing Brazil's reference to "labelling requirements", we 
consider that such broad reference, without any explanation of what the label should state, is not 
sufficient. Given that Brazil takes the view that thawing chicken at tropical t emperatures may be 
safe, it is not even possible to second -guess what the content of such labels should be. If Brazil is 
suggesting that the label should simply inform the consumer that chicken meat was previously 
frozen, we consider that such label would not address Indonesia's health concern.  
7.233.   Similarly, as regards rules or guidelines regulating the thawing of chicken, we note that 
Brazil neither explains what the rules should be nor how they should apply in a traditional market . 
At the same time, we must assume that the alternative measures identified by Brazil are based  on 
its view that thawing chicken in tropical temperatures is safe. Therefore, the alternative measures 
do not address Indonesia's own perception of the risks involved. As Indonesia points out, thawing 
should take place in a cold storage facility.364  
7.234.   Finally, while Brazil proposes mandatory good hygienic practices as an alternative 
measure, which, as Indonesia argues, is already being applied, Brazil does not explain how this 
would address In donesia's concern about thawing frozen chicken at tropical temperatures.  
7.235.   Turning to the second category, namely measures relating to refreezing of previously 
frozen chicken, as stated previously, we note that Indonesia's concern primarily relates to thawi ng 
chicken at tropical temperatures. The alternative measures that Brazil proposes  in respect of the 
re-freezing issue , however, do not address that concern. To the contrary, t he proposed  alternative  
measures address  a concern that would only arise, if it were possible  to sell thawed chicken. We, 
therefore, do not need to consider this category further.365   
7.236.    We are , thus,  in a situation where the less trade -restrictive alternative measure s proposed 
by the complaining party  cannot be  meaningfully integrate d in our necessity analysis. However, 
there is a concrete less trade -restrictive alternative which is plainly before us insofar as Indonesia, 
in the meantime, has enacted it in its legislation. We recall that the intended use requirement in 
the version that w e are examining prohibits access to traditional markets altogether, irrespective 
of whether or not they may have cold storage facilities. As we will further discuss below, a 
subsequent amendment to this measure, enacted through MoA 34/2016, provides that i mported 
frozen chicken meat may be sold in markets with cold storage facilities. As is clear from Brazil's 
comments on this later version, Brazil considers this new version to also be WTO -inconsistent 
despite the cold storage requirement, which may be  the reason why it has not proposed the latter  
as a less trade -restrictive alternative.366 
7.237.   We are mindful that the Appellate Body has cautioned panels not to take it upon 
themselves "to rebut the claim (or defence ) where the responding party (or complaining party ) 
                                                
363 Brazil's response to Panel question No. 99.  
364 Indonesia's comments on Brazil's response to Panel question No. 99.  
365 See para. 7.213  above . See also Indonesia's comments on Brazil's response to Panel question 
No. 99, para. 68.  
366 Brazil's second written submission, para. 62; and opening statement at the second meeting of the 
Panel,  para. 16.  WT/DS484/R  
 
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  itself has not done so ".367 However, the Appellate Body has also held that where a defence or 
rebuttal of a defence has been made, a panel may rule on the defence "relying on arguments 
advanced by the parties or developing its own reasoning".368 
7.238.   We believe t hat, for the purposes of our analysis here, we can consider the cold storage 
requirement as a less -trade restrictive alternative, for the following reasons: First, given the 
subsequent legislative developments, we have before us evidence that this is an al ternative 
measure that is reasonably available and meets Indonesia's objective.369 Second, Indonesia's 
defence of the intended use requirement, in fact, reads like a reference to, and anticipation of, this 
subsequent legislation. In other words, we do not se e Indonesia defending a complete ban from 
traditional markets, as enacted through MoA 58/2015, but rather the cold storage requirement as 
enacted through MoA 34/2016. Indonesia, for example, in discussing necessity, states the 
following: "Thus, by requirin g importers  to import frozen and chilled chicken meat and products to 
be sold only in markets that have a proper cold -chain systems …is capable of making and does 
make some contribution…".370 The intended use requirement as enacted through MoA 58/2015, 
which Indonesia defends pertinently with this statement, notably does not require cold storage, 
but prohibits access to traditional markets altogether. Third, while Brazil does not suggest cold 
storage, it does , as seen above,  suggest inter alia  "rules regulatin g the thawing of frozen chicken 
to be offered for sale" as a  less trade -restrictive alternative measure.371 In our view a cold storage 
requirement could be considered to fall  under "rules regulating the thawing of frozen chicken".  
7.239.   For the above reasons we c onsider the cold storage requirement as a relevant factor in our 
necessity analysis. In weighing and balancing all factors together in a holistic assessment, we 
recall the trade -restrictiveness of the measure and the ambivalent nature of the contribution. 
Mindful of these factors and given that an alternative less -trade -restrictive measure exists that 
equally meets Indonesia's objective, we conclude that the measure does not comply with the 
requirements of the necessity test.  
7.240.   We therefore find that the int ended use requirement is not provisionally justified under 
Article XX(b).  
7.5.2.4.2    Article XX(d)  
7.241.   We now turn to the second defence  that Indonesia has raised under Article XX, namely 
Article XX(d).  
7.242.   Indonesia submits that the intended use requirement secures compli ance with relevant 
provisions in Indonesian law which  require that imported food must be safe. In addition, Indonesia 
refers to consumer protection pointing to the risk of consumers mistaking thaw ed chicken for fresh 
chicken when buying chicken in the trad itional market.372 
7.243.   Brazil submits that Indonesia failed to provide any evidence that the intended use 
requirement contributes to the enforcement of any particular law or regulation. Brazil also argues 
that "Indonesia has not indicated whether there would not  be any less trade -restrictive alternative 
measures to secure compliance with its laws and regulations ".373  
                                                
367 Appellate Body Report, US – Gambling , para. 282. See also  Appellate Body Report, Japan – 
Agricultural Products II , para. 130.  
368 Appellate Body Report, US – Gambling , para. 282 . See also Appellate Body Reports, EC- Hormones , 
para. 156 ; and US – Certain EC Products , para. 123.  
369 See Panel Report s, China – Raw Mate rials, para. 7.25 (citing Appellate Body Reports, China – 
Publications and Audiovisual Products , para. 177; China - Auto Parts , para. 225; US - Section 211 
Appropriations Act , para. 105; and India - Patents (US) , para. 65 ). See also Appellate Body Report, EC – 
Selected Customs Matters , para. 188.  
370 Indonesia's first written submission, para. 191 . (emphasis added)  
371 See Brazil's  opening statement at the first meeting of the Panel, para. 62; and  second written 
submission, para. 64.  
372 Indonesia's first written  submission, paras. 203 -206. Indonesia also refers to "customs 
enforcement", but does not develop any arguments subsequently.  
373 Brazil's second written submission, paras. 69 and 71.  WT/DS484/R  
 
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  7.244.   As set out in section 7.4.2.3 above , Article XX(d) covers measures "necessary to secure 
compliance with laws or regul ations which are not inconsistent with the provisions of this 
Agreement […] ". 
7.245.   We have already examined the food safety aspects in our analysis under Article XX(b). 
Under its Article XX(d) defence, Indonesia refers to the need to enforce relevant provisions  in 
Indonesian Law that pursue the objective of protecting human health, including food safety, as 
discussed in sub -paragraph (b). In our view, therefore, the outcome of our analysis in sub -
paragraph (d) here would  not differ from our analysis in sub -parag raph (b) above. Our analysis 
below, therefore, will focus on consumer deception, an aspect of Indonesia's defence under Article 
XX that has not been covered so far.  
7.246.   As we have noted in section paragraph  7.4.2.3 above , our as sessment under Article  XX(d) 
requires us to address the following two questions: (1) whether  the intended use requirement is 
designed to secure compliance with laws or regulations that are not themselves inconsistent with 
the GATT 1994; and (2) whether  the intended use requirement is necessary to secure compliance 
with such laws and regulations . We address these questions in turn.  
7.5.2.4.2.1   Whether the intended use requirement is designed to secure compliance 
with laws and regulations  that are not themselves inconsis tent with the GATT 1994  
7.247.   Indonesia refers to Law 8/1999 (Consumer Protection), which, as it submits, "requires 
entrepreneurs to provide honest information about the condition and quality of products".374 
Indonesia argues that the intended use requirement is d esigned to ensure that imported frozen 
chicken meat and products are not sold in markets without proper refrigeration facilities. The 
sanctions, according to Indonesia, are designed to prevent importers from engaging in deceptive 
practices.375 The deceptive practices Indonesia describes refer to "consumers being misled into 
buying thawed products believing they were fresh products".376  
7.248.   As noted previously, the legal standard as clarified by the Appellate Body requires a panel  
to apply "an initial examination o f the relationship between the inconsistent measure and the 
relevant laws or regulations". A panel, thus, must "scrutinize the design of the measures sought to 
be justified".377 The Appellate Body further clarified that the standard for ascertaining whether 
such a relationship exists is whether the assessment of the design of the measure reveals that the  
measure is not incapable of securing compliance with the relevant laws and regulations in 
Indonesia.378 Finally, we note that the Appellate Body has described this test as "not… particularly 
demanding" , in contrast to  the requirements of the next step of the analysis, namely the necessity 
test.379   
7.249.   It is our understanding that Indonesian law does not specifically describe the passing off of 
thawed chicken as fres h chicken as a deceptive practice. However, we agree with Indonesia that it 
would be deceptive for a consumer to buy thawed chicken in the belief that it is fresh ly 
slaughtered  chicken. We do not understand Brazil to disagree with that point.  Thus, a measu re 
designed to prevent consumer  deception , could be considered to be a measure designed to secure 
compliance with Indonesian consumer protection laws.  Furthermore,  Brazil has not called into 
question the consistency of these laws with the GATT 1994, and we  agree with Indonesia that it 
must, therefore, be presumed.380  
7.250.   In examining the design, structure and architecture of the measure  we refer to our 
observ ation above, that the intended use requirement completely prevents the sale of imported 
frozen chicken in  traditional markets. If no frozen chicken can be sold in such markets, sellers 
cannot readily engage in the deceptive practice of misleading consumers into buying thawed 
chicken. Viewed this way, and in applying the above standard, on the basis of its des ign, structure 
and operation,  the measure must be considered to be "not incapable" of achieving the objective of 
                                                
374 Indonesia's first written submission, para. 203.  
375 Indonesia's first wri tten submission, para. 206.  
376 Indonesia's comments on Brazil's response to Panel question No. 99.  
377 Appellate Body Report, Argentina – Financial Services , para. 6.203.  
378 Appellate Body Report, Colombia – Textiles , paras. 5.68.  
379 Appellate Body Report, Colombia – Textiles , para. 5.70.  
380 Indonesia's first written submission, para. 205.  WT/DS484/R  
 
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  securing compliance with Indonesia's consumer protection law . That it prevents the sale of chicken 
altogether is a different issue that is rele vant to our necessity analysis . On this basis we find, that 
there is a relationship between the intended use requirement and the objective to secure 
compliance with the relevant laws and regulations.       
Whether the intended use requirement is necessary to secure compliance with such  laws 
and regulations  
7.251.   Turning to the necessity test, we examine the different factors as outlined in paragraph 
7.136 above . 
7.252.   In terms of the importance of the objective pursued, we acknowledge th e importance of 
the protection of consumers from deceptive practices, to which Indonesia refers.381   
7.253.   Regarding the contribution that the measure makes in achieving this objective, we note 
Indonesia's argument that "sanctions in case of lack of compliance co ntribute to preventing local 
sellers from sourcing frozen chicken meat, thawing it, and selling it as fresh chicken meat in 
markets without proper refrigeration facilities ".382 Indonesia submits that this "decreases [the] 
incidence of deceptive practices".383 We are not persuaded  by this argument. First of all, sanctions 
for breach of the intended use requirement apply to the importer, not to the local seller, who 
would be the one engaging in deceptive practices. Second, the prohibition on the sale of imported 
frozen chicken also applies to sellers who would not engage in deceptive practices, but  would  be 
selling either frozen or thawed chicken with the information that it was previously frozen. Based on 
these considerations , we are not convinced that the contri bution is , as Indonesia argues, 
"substantial".384   
7.254.   As seen above, whether the contribution is substantial/material or not, in turn matters 
given the trade -restrictiveness of the intended use requirement which weighs heavily against 
considering the measure n ecessary.385 
7.255.   Turning to the issue of a less trade -restrictive alternative, we do not agree with Brazil's 
suggestion that the burden of putting forward less trade -restrictive alternatives is on Indonesia, a 
point that has been settled unambiguously in the cas e law.386 
7.256.   Furthermore, as regards the less trade -restrictive measures that Brazil itself refers to, we 
note that Brazil suggests, in particular, that there should be "regulation requiring sellers to inform 
that the imported product for sale is either frozen or has been 'previously frozen' ".387 These are , as 
we understand it,  two different suggestions  with different underlying scenarios. In the first 
scenario, the chicken is sold frozen. We note that chicken would only remain frozen if it were kept 
in cold stora ge. In that scenario, which we discuss above as a possible less trade -restrictive 
alternative under Article  XX(b), the proposed labelling would be unnecessary, because the 
consumer would see that the chicken is frozen and, thus, could not be deceived into believing that 
it is fresh. In t he second s cenario, the chicken sold is  "previously frozen" , that is, thawing or 
thawed. This scenario, thus, presumes that the frozen chicken could be sold thawed. In our view, 
in considering this scenario, we cannot ignore  that Indonesia, with the intended use requirement, 
is also pursuing a health protection objective. We have accepted Indonesia's argument that there 
is a risk in thawing chicken at tropical temperatures. We  have also accepted that labelling, in the 
manner Brazil proposes, would not address Indonesia's health concern and thus would not achieve 
Indonesia's objective of protecting human health.388 Therefore, even if labelling were a less 
trade -restrictive alternative in respect of the consumer protection objecti ve alone, viewed 
                                                
381 Indonesia's first written submission, para. 208.  
382 Indonesia's first written submission, para. 207.  
383 Indonesia's first written submission, para. 207.  
384 Indonesia's first wri tten submission, para. 208.  
385 Appellate Body Report, Brazil – Retreaded Tyres , para. 150. 
386 Appellate Body Reports, EC – Seal Products , para. 5.169 , citing Appellate Body Report,  US – 
Gambling , paras. 309 -311. See also para. 7.122 above.  
387 Brazil's opening statement at second meeting of the Panel,  para. 59. 
388 See para. 7.232 . above.  WT/DS484/R  
 
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  cumulatively with the other objective pursued by the measure, it is not. We, therefore, do not 
consider this option as one that we need to discuss further.389 
7.257.   This leaves us with the same situation as above under Article XX(b), namely that t he less 
trade -restrictive alternative measure s proposed by the complaining party are not such that  we can 
meaningfully integrate  them in our holistic analysis of necessity. For similar reasons as set out 
above, however, we take the view that we can conside r as a less trade restrictive alternative the 
requirement to sell only in markets with cold storage facilities. We recall that Indonesia has 
enacted a measure through MoA 34/2016 which allows access to traditional markets provided they 
have cold storage fa cilities . In Indonesia's own assessment, therefore,  this is a n alternative  
measure which achieves Indonesia's objective, inter alia, of protecting its consumers against the 
deceptive practice of passing off thawed chicken as fresh. Indeed, Indonesia's defe nce under 
Article XX(d), similar  to its defence under Article XX(b) , reads as if Indonesia were already 
referring to its later measure enacted under MoA 34/2016. For example, Indonesia states "that the 
intended use requirement prohibits  that imported froze n chicken meat and products are sold in 
markets without proper cold -chain systems " thereby contributing "to ensuring to a great extent 
that only safe imported chicken is sold to consumers ".390 The intended use requirement that 
Indonesia seeks to defend with this statement, however, is no such prohibition; it is a prohibition 
of access to traditional markets altogether, whether or not they have cold storage facilities. For 
these reasons we consider the cold storage requirement as a factor relevant to our neces sity 
analysis.  
7.258.   In weighing and balancing all factors together we recall the trade -restrictiveness of the 
measure and the ambivalent nature of the contribution. Mindful of these factors and given that an 
alternative less -trade -restrictive measure exists th at equally meets Indonesia's objective, we 
conclude that the measure does not comply with the requirements of the necessity test.  
7.259.   We therefore find that the intended use requirement is not provisionally justified under 
Article XX(d).  
7.260.   Given the absence of  a (provisional) justification under either subparagraph (b) or (d), we 
see no need to proceed to an analysis under the chapeau of Article XX.  
7.261.   In conclusion, we find that the intended use requirement is inconsistent with Article XI of 
the GATT 1994 and is not justified under Article XX of the GATT 1994.  
7.5.2.5   Whether the intended use requirement is inconsistent with Article 4.2 of the 
Agreement on Agriculture  
7.262.   As noted in section 7.4.2.4 above , the principle of judicial economy "all ows a panel to 
refrain from making multiple findings that the same measure is inconsistent  with various 
provisions when a single, or a certain number of findings of inconsistency, would suffice to resolve 
the dispute".391 Thus, panels need address only those  claims "which must be addressed in order to 
resolve the matter in issue in the dispute"392, and panels "may refrain from ruling on every claim 
as long as it does not lead to a 'partial resolution of the matter'".393 
7.263.   Having found a violation of Article XI of t he GATT 1994, we consider that it is not 
necessary to address Brazil's claim under Article 4.2 of the Agreement on Agriculture  in order to 
secure a positive solution to this dispute.  
                                                
389 We, therefore, can leave open the question of whether  Brazil has provided enough detail in respect 
of this alternative.  
390 Indonesia's first written submission, para. 207.  
391 Appellate Body Report, Canada – Wheat Exports and Grain Imports , para.  133. (emphasis original)  
392 Appellate Body Reports, US – Wool Shir ts and Blouses , p. 19, DSR 1997:I, p. 340; US – Tuna II 
(Mexico) , para.  403. 
393 Appellate Body Reports, US – Upland Cotton , para. 732; and US – Tuna II (Mexico) , para.  404. WT/DS484/R  
 
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  7.5.3   Analysis of  the relevant provisions of MoA 34/2016  
7.264.   Our findings above app ly to the intended use requirement as enacted through 
MoA 58/2015. As noted in the beginning of this section, in the course of the proceedings, 
MoA 58/2015 was revoked and replaced by MoA 34/2016.   
7.265.   With this change the parties' arguments have evolved. Ind onesia submits that the 
intended use requirement has expired .394 Brazil contests this assertion . Brazil also contends that 
MoA 34/2016 introduced additional features which reinforce the restriction caused by the intended 
use requirement.395 
7.266.   We first describe t he relevant provisions at issue before turning to the question of whether 
their adoption has led to the expiry of the intended use requirement. We, then, consider the 
question whether the Panel has jurisdiction to  review the relevant provisions under MoA 3 4/2016 
against Brazil's claims. If so, we consider whether the modified features of the intended use 
requirement change the analysis that we provided above in respect of the intended use 
requirement.   
7.5.3.1   Provisions at issue  
7.5.3.1.1   Limitation on the intended use to markets with cold chain facilities  
7.267.   We refer to Table 3 above  which sets out Article 31(1)  of MoA 34/2106. A ccording to this 
provision imported frozen chicken may be sold in modern and traditional markets provided t hey 
have cold chain facilities. It is not disputed between  the parties that currently most traditional 
markets do not have any cold storage facilities.396 Indonesia explains that almost all traditional 
markets have access to electricity, that no authorizatio n is required to install cold chain facilities 
and that the cost for doing so would have to be borne by the entity installing them.397 Indonesia 
also refers to recent government plans to revitalize 5,000 traditional markets and open the cold 
storage industry  to foreign investment.398 
7.268.   In terms of sanctions applying to breach of the above requirement, Indonesia refers to 
Article 32(1)(b) which requires importers to abide by the intended uses listed in the MoA Import 
Recommendation.399 Pursuant to Article 38(4), a b reach of Article 32 may result in a temporary 
suspension of import recommendation for one year.400 In addition, we note that Article  38(1) also 
provides for sanctions for a breach of Article 4(6) which requires importers to conduct importation 
in accordance with the MoA Import Recommendation.401 
7.5.3.1.2   Enforcement of the intended use through d istribution plan and weekly 
distribution report  
7.269.   In addition, MoA 34/2016 has introduced two new provisions, which, Indonesia describes 
as "part of the enforcement framework to en sure that chilled and frozen chicken meat and chicken 
products are sold in markets with cold chain facilities ".402 
7.270.   The first is Article 22(1)(l) of MoA 34/2016 which provides that the application for an 
MoA Import Recommendation which is to be submitted by t he importer shall contain a "distribution 
                                                
394 See Indonesia's response to Panel question No. 2, where Indonesia describes the in tended use 
requirement as an "expired" measure stating that it has been "removed". See also Indonesia's second written 
submission, para. 6 , where Indonesia states that the intended use requirement has been "eliminated"; and 
Indonesia's responses to Panel q uestion No. 66(a) and 85.  
395 Brazil's opening statement at second meeting of the Panel,  paras. 15 and 18. 
396 See Brazil's opening statement at second meeting of the Panel,  para.16 . See also  Indonesia's first 
written submission, para. 130.  
397 Indonesia's respo nse to Panel question No. 98.  
398 Indonesia's response to Panel question No. 98(b).  
399 See Table 3 above.  
400 See Table 3 above.  
401 See Table 3 above. We note that subparagraph (6) has been added through MoA 34/2016. No such 
subparagraph existed in MoA 58 /2015.  
402 Indonesia's response to Panel question No. 88(b).  WT/DS484/R  
 
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  plan of carcass, meat, offal and its processed products in accordance to format -2". Format 2403 
requires the importer not only to list country of origin, type of meat and quantity, but also to list 
the name and addre ss of the buyer, as well as the price.404  
7.271.   The second new provision that MoA 34/2016 has introduced is Article 32(3), which 
provides that the importer " is required to submit a distribution report of the carcass and meat to 
the Director General online in acco rdance to format -4 on every Thursday ". Format 4405 requires 
the importer to submit information on the following five items: (1) Arrival schedule, (2) Import 
realization, (3) distribution to industry/hotel, restaurant, catering/market with cold chain facility , 
(4) final stock on the importer, and (5) number of delivery orders. We note that the information 
required in the distribution plan as described above, in particular , the quantity sold as well as 
name and address of buyer and the price, must  also be submi tted through Format 4  (namely in 
items 2 and 3).  
7.272.   In terms of sanctions, starting with the distribution report, Indonesia refers to Article 38(4) 
of MoA 34/2016. This provision provides for sanctions for non -submission of the weekly report with 
a written wa rning followed by a temporary suspension of the MoA Import Recommendation for one 
year.406 As for the distribution plan, Article 38(3)(b) provides that violation of Article 22(1)(l) may 
be subject to a temporary suspension of the MoA Import Recommendation fo r one year.407    
7.5.3.2   Whether the intended use requirement has expired  
7.273.   Indonesia submits that with the adoption of MoA 34/2016 the intended use requirement 
has expired. According to Indonesia, this is, because Article 31(1) of MoA 34/2016 "removed the 
limitation  on the specific intended uses referred to by Brazil in its Panel Request ".408 Brazil argues 
that "the intended use requirement is still in place, now in a new restrictive guise ". Brazil explains 
that "[b]ecause traditional markets have no (or only marginal)  cold chain facilities available, 
Brazilian frozen or chilled chicken will not have access to this segment due to the restriction 
imposed by Indonesia ".409 
7.274.   As noted in section 7.2.4.3 above , we agree with Indonesia that the ex piry of the measure 
at issue may have a bearing on whether we can make a recommendation . We consider that a 
measure has expired if it has ceased to exist.   
7.275.   Indonesia's argument is that the importer now has access to all segments of the markets 
including t raditional markets (provided they have cold chain facilities). Indonesia, therefore, 
contends that the intended use requirement as a " limitation  on the specific intended uses" has 
been removed with the consequence that the measure no longer exists.410  
7.276.   We de scribed in paragra ph 7.181 above  the intended use requirement as a measure 
consisting in limiting allowed uses in the market. I t is true , as Indonesia points out, that amongst 
the "allowed uses" there is now also sale in modern and traditional markets, where as these were 
not included in the intended use requiremen t as enacted through MoA 58/2015 . However, these 
allowed uses remain subject to a condition - the cold storage requirement  – condition which  must 
be fulfilled in ord er for the use to be allowed. The condition, thus,  directly determines whether or 
not the use is allowed . Therefore , allowed uses are still limited. That limitation results in the same 
effect, namely preventing  access to traditional markets , since the latt er currently do not have (or 
                                                
403 We note that Format 2 has the heading "Distribution Plan of Carcass and Meat  from Cattle". 
However, as Indonesia explains, the original Indonesian version translates as "Distribution Plan for carcass, 
meat, offal and processed products" . See Indonesia's response to Panel question No.88(c)(i).  
404 MoA 34/2016  (Exhibit BRA -48). 
405 We note that Format 4 has the following heading: "Distribution Plan of Carcass and Meat from 
Cattle". However, as Indonesia explains, the original Indonesian version translates as "Distribution Plan for 
carcass, meat, offal and processed products" . See Indones ia's response to Panel question No.88(a).  
406 See Table 3 above. See also Indonesia's response to Panel question No. 88(a).  
407 See Table 3 above . 
408 Indonesia's response to Pan el question No.85 . See also Indonesia's response to Panel question 
No. 66(a). See also Indonesia's response to Panel question No. 2 and second written submission, para. 6.  
409 Brazil's opening statement at second meeting of the Panel,  paras. 15-16. 
410 Indones ia's response to Panel question No. 85.  WT/DS484/R  
 
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  only marginally have) cold storage facilities.411 No access to traditional markets in turn means no 
access to the largest portion of the chicken market in Indonesia.412  
7.277.   In light of the foregoing, we find that the measure has not ceased to exist and, therefore, 
that there is no expiry.   
7.5.3.3   Whether the  intended use requirement, as enacted through the  relevant 
provisions of MoA 34/2016 , is WTO -inconsistent as claimed by Brazil  
7.278.   We next turn to the claims which Brazil has raised in respec t of the a bove provisions . 
Brazil's position  essentially  is that the intended use requirement continues to be a WTO -
inconsistent measure  and that the new enforcement provisions  (i.e. distribution plan and weekly 
distribution report) have only reinforced th e restrictions.413 We first establish whether we have 
jurisdiction before turning to a due process issue which Indonesia has raised.  
7.5.3.3.1   Jurisdiction    
7.279.   As regards the cold storage requirement, we note that Article 31(1) of MoA 34/2016, in 
substance, has amended Article 31(1) and Article 31(2) of MoA 58/2015. Indonesia submits that 
because the measure, in its view, has expired, its essence is no longer the same. 414 We agree with 
the underlying logic that our discussion on expiry immediately above, is directly relev ant. As we 
have found, the essence of the intended use requirement is to limit allowed uses in the market, 
and because this has not changed with the adoption of Article 31(1) of MoA 34/2016, the measure 
has not expired. That finding implies that the measur e, in essence has remained the same. As 
noted above, in line with the Appellate Body's guidance in Chile – Price Band System , we consider 
that because the measure has in essence remained the same and because the terms of Brazil's 
Panel request are broad en ough, we have jurisdiction to review  the intended use requirement as 
enacted through  Article 31(1) of MoA 34/2016.  
7.280.   As regards both the distribution plan and the weekly distribution report, we recall that 
these are new requirements introduced through MoA 3 4/2016. In Indonesia's view, they are not 
covered by the Panel's terms of reference. In that regard, Indonesia reiterates that the intended 
use requirement has expired. Indonesia also submits that the distribution plan does not relate to 
or implement the i ntended use requirement as set out in Brazil's panel request.415  
7.281.   As noted above, Indonesia describes these requirements as "part of the enforcement 
framework to ensure that chilled and frozen chicken meat and chicken products are sold in 
markets with cold c hain facilities".416 We understand this to mean that these requirements are 
enforcement provisions for the intended use requirement as laid down in Article 31(1) of MoA 
34/2016. Indeed if there were no intended use requirement, i.e. no limitation whatsoever on the 
use of imported chicken meat, the distribution plan and the weekly report would make little sense. 
In other words, the raison d'être of both the distribution plan and the distribution report is directly 
contingent on the existence of the intended us e requirement. Moreover, we note Brazil's argument 
that these two requirements reinforce the restrictions caused by the intended use requirement.417 
Given these factors, we consider that the two requirements are closely related to the intended use 
requiremen t such that they form part of that measure. That measure, in turn, is, as we have found 
above, in essence still the same measure that Brazil challenged in its panel request. Moreover we 
take the view that Indonesia could reasonably anticipate or foresee th at any new enforcement 
provision that it adopts in respect of a measure that is at issue in the dispute, could be relevant to 
                                                
411 We recall our conclusion that the cold storage requirement could be a less trade restrictive 
alternative to not allowing the use of imported chicken products in modern and traditional markets. See 
para. 7.257  above. We point out that there is a difference between the question of the (continued) existence of 
a measure and its WTO -consistency. In respect of the WTO -consistency of the amended intended use 
requirement we assess the latter in  section 7.5.3.3  below.  
412 See para. 7.101  above.  
413 Brazil's opening statement at second meeting of the Panel,  in particular para s. 18 and 21.  
414 Indonesia's response to Panel question  No. 85.   
415 Indonesia's response to Panel question No.88(e).  
416 See para. 7.269  above . 
417 Brazil's opening statement at second meeting of the Panel,  paras. 18-21. WT/DS484/R  
 
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  the dispute.418 We, thus, find that the distribution plan and the distribution report are closely 
related to the intended use requir ement such that they form part of that measure.  
7.282.   We thus consider that the intended use requirement as enacted through MoA 34/2016, 
which includes the limitation on cold storage as well as the distribution plan and the distribution 
report, is  within our ter ms of reference.    
7.5.3.3.2   Admissibility of claims in terms of due process  
7.283.   Brazil's position, as seen above, is that the intended use requirement continues to be a 
WTO-inconsistent measure and that the new enforcement provisions  (i.e. distribution plan and 
weekl y distribution report) have only reinforced the restrictions.419 Indonesia, however, submits, in 
respect of the distribution plan and distribution report, that Brazil "did not make a proper claim". 
Indonesia argues that it is not clear which aspects of which  WTO provisions these requirements are 
inconsistent with" and refers to Brazil's challenge as "vague and unprecise". As a consequence 
Indonesia considers that its ability to defend itself is undermined.420 We understand Indonesia to 
raise a due process conce rn, which requires us to examine whether the claims that Brazil makes in 
respect of the distribution plan and weekly report, are admissible.    
7.284.   Brazil essentially argues that the changes that the new measures have brought about have 
not changed the nature of the violations. To us it is clear, therefore , that the claims that we have 
to examine are those set out above in paragraph 7.182 above , namely Article  XI of the GATT 
1994, Article 4.2 of the Agreement on Agriculture  and A rticle III:4 of the GATT 1994. Brazil made 
arguments specifically on the new enforcement provisions  at the second meeting.421 While those 
arguments clearly point to the trade -restrictive and discriminatory nature alleged by Brazil, they 
remain somewhat limit ed and were only further developed in Brazil's responses to questions.422 It 
seems to us that this is mainly because Indonesia first had to provide some factual explanations 
regarding these new requirements – a fact which in our view should not be counted ag ainst Brazil. 
We also note that Indonesia was given ample opportunity to explain the measures in its responses 
to questions and was able to – and did – react to Brazil's arguments in its comments to Brazil's 
responses.423 Under these circumstances we do not consider that Indonesia has identified a valid 
due process concern that would prevent us from proceeding with the examination of Brazil's claims 
regarding the new enforcement provisions .   
7.285.   As we have stated above, our analysis of Brazil's claims will focus  on whether the modified 
and additional features of the intended use requirement change the analysis that we provided 
above in respect of the intended use requirement.   
7.5.3.3.3   Claims under Article III:4  of the GATT 1994  
7.286.   As noted above, Brazil raises claims both under Article XI of the GATT 1994 and Article 4.2 
of the Agreement on Agriculture , as well as under Article III:4 of the GATT 1994. Thus, Brazil 
challenges the intended use requirement both as border and as internal measure. As seen above, 
the parties disa gree on whether it is possible to challenge (the same aspect of) a measure both 
under Article XI of the GATT 1994 (or Article 4.2. of the Agreement on Agriculture ) and under 
Article III of the GATT 1994.  
7.287.   We started our analysis above, regarding the intend ed use requirement as enacted under 
the previous regulation MoA 58/2015, under Article III:4 of the GATT 1994. As we explained 
above, both parties, albeit for different reasons, take the view that Article III:4 is applicable and 
have presented arguments un der this provision. We observe d that the question whether Article 
III:4 applies to the exclusion of Article XI of the GATT 1994 and Article 4.2 of the Agreement on 
                                                
418 Whether there are other due process concerns  relating  to the manner in which Brazil has presented 
its claims, is a different issue which we discuss below . 
419 Brazil's opening statement at the second meeting of the Panel,  in particular para s. 18-21. 
420 Indonesia's response to Panel question No. 66(b).  
421 Brazil's opening statement at the second meeting of the Panel,  paras. 18 -21. 
422 Brazil's response to Panel question No.  87; and comments on Indonesia's response to Panel question 
No. 88 . 
423 See Indonesia's responses to Panel question No s. 88 and 89 . See also Indonesia's comments on 
Brazil's response to Panel question No. 87.  WT/DS484/R  
 
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  Agriculture , only becomes relevant if and when Article III:4 is applicable to the measure at  issue. 
We, therefore examine d whether the intended use requirem ent as laid down in MoA 58/2015  was 
covered by Article III:4. We now examine whether this analysis still stands in light of the changes 
made to the intended use requirement through MoA 34/2016 .   
7.5.3.3.3.1   Whether Article III:4 is applicable  
7.288.   We set out Article III:4 in paragraph 7.187 above . As we explained there, the scope of 
Article III:4 is qualified through the interpretative note Ad Article III , the text of which we s et out 
in paragraph 7.188 above . We read the qualification made through the Ad Note to mean that a 
measure that affects the internal sale, offering for sale, etc., when enforced at the time or point of 
importation, only come s under Article III:4 if it applies to an imported product and the like 
domestic product. We, therefore need to examine the following three elements: (1) whether the 
measure is a law, regulation or requirement affecting the internal sale, offering for sale , purchase, 
transportation, distribution or use of imported chicken meat; (2) whether the measure that is 
enforced at the time or point of importation, and (3) whether it applies to imported products and 
to like domestic products.  
7.289.   In paragraphs 7.190 -7.194 above , we examined these three elements with regard to the 
intended use requirement in its previous version and arrived at the conclusion that it was not 
covered by the Ad Note , and that therefo re, Article III:4 was not applicable. The changes to the 
intended use requirement  that the above provisions under MoA 34/2016 have brought about  raise 
the question whether that result remains the same. There are two issues that we need to consider, 
both of  which concern the third element above. We recall that this element requires us to consider 
whether there is an "equivalent" domestic measure.  
Cold storage requirement   
7.290.   The first issue we need to address, concerns the cold storage requirement introduced 
through Article 31(1) of MoA 34/2016. We recall that Indonesia submits that there is an 
"equivalent" measure to the intended use requirement, namely a cold storage requirement 
applicable to the sale of frozen and chilled meat in markets in domestic law, as  laid down in MoA 
Decree 306/1994.  
7.291.   In our analysis of the intended use requirement as previously enacted through 
MoA 58/2015, we found that there was no "equivalence" because that version of the intended use 
requirement did not contain any reference to co ld storage. Access to traditional markets was 
prohibited, whether or not they had cold storage facilities. We, therefore, concluded, that the aim 
and content of the respective provisions was substantially different, such that there was no 
equivalence. With  the adoption of MoA 34/2016, however, there is now a cold storage requirement 
which, in terms of scope, exactly matches the cold storage requirement under MoA Decree 
306/1994 . We further note that both Article 31(1)  of MoA 34/2016 and the relevant provisi ons in 
MoA Decree 306/1994  apply to the same products, namely  frozen and chilled chicken meat .424 This 
indicates to us that there is now equivalence.  
Enforcement provisions  
7.292.   This preliminary conclusion leads us to the second issue, namely whether the 
"equival ence" assessment of two measures is affected by the way these measures are enforced. If 
it were, differences in enforcement could lead to "non -equivalence" taking the measure outside the 
scope of Article III. We note that both parties as well as the Europe an Union as third party, 
consider that enforcement is part of the equivalence analysis.425 In our view it is not .  
7.293.   A first point to be made is that the very situation that the Ad Note contemplates is already 
one that builds on a difference in enforcement – one measure is enforced at the border, the other 
                                                
424 We note that our assessment of substantive compliance with Article III:4 of the GATT 1994, owing to 
the nature of Brazil's arguments, requires a "likeness" analysis going beyond the " likeness" established for the 
purpose of equivalence. See in particular, section 7.5.3.3.3.2  below.  
425 See Brazil and Indonesia's  response to Panel question No. 91(a) . See also European  Union's third-
party response to Panel ques tion No. 11.  WT/DS484/R  
 
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  is not. The Ad Note makes clear that this difference does not take the measure outside the scope 
of Article III.  
7.294.   Second, enforcement of a measure is a question of how  a measure is applied. Differences 
in how a measure is applied are relevant in the assessment of whether there is less favourable 
treatment. In our view, the "equivalence" assessment in the Ad Note is not to be conflated with 
the question of whether there is less favourable treatment and, therefor e, a violation of Article III. 
An equivalence assessment is limited to ascertaining whether  a measure is applied both to 
domestic and imported products, not how it is applied. If it were otherwise, the equivalence 
assessment itself would amount to a less f avourable treatment analysis and an assessment under 
Article III would be redundant.  
7.295.   Applying our view to the case at hand, we do not see a need, for purposes of the 
equivalence analysis , to address the enforcement provisions in the intended use requireme nt and 
compare them to the way the domestic cold storage requirement is enforced. Instead, w e consider 
that these are questions that are relevant to our analysis under Article III:4.  
7.296.   We, therefore, confirm our preliminary analysis above, that there is an equivalent domestic 
measure. Thus we conclude that pursuant to the Ad Note, Article III:4 is applicable to the intended 
use requirement as enacted through MoA 34/2016.  
7.5.3.3.3.2   Whether there is inconsistency with Article III:4  
7.297.   Brazil's argument essentially is that  the intended use requirement imposes restrictions on 
imported chicken whereas no such restrictions are imposed on domestic chicken.426 Indonesia's 
defence consists mainly in arguing that there is no difference in treatment between imported 
frozen and domest ic frozen chicken; as for any difference in treatment between imported frozen 
and domestic fresh chicken, Indonesia submits that they are not like products.427  
7.298.   We have set out the text of Article III:4 in paragraph 7.187 above . To assess whether 
there is a violation of Article III:4 we need to examine the following three questions: (1) whether 
the imported and domestic products at issue are "like products"; (2) whether the measure at issue 
is a "law, regulation, or requirement  affecting their internal sale, offering for sale, purchase, 
transportation, distribution or use"; and (3) whether the imported products are accorded "less 
favourable" treatment than that accorded to like domestic products.428 
7.299.   We do not see an issue with the  second of these elements. As we have already established 
in paragraph 7.190 above , we consider that the intended use requirement is a regulation or 
requirement that affects the internal sale and offering for sale. Neither p arty contests this point.  
7.300.   As for the other two elements, our assessment differs depending on the specific aspect of 
the intended use requirement addressed by Brazil's arguments. We see two different aspects, 
namely the cold storage requirement, on the one  hand, and the enforcement provisions on the 
other.  
Whether the intended use requirement is inconsistent with Article III:4  with respect to 
its cold storage requirement  
7.301.   Regarding the cold storage requirement, Brazil does not contest that a cold storage 
requirement also applies to domestic frozen and chilled chicken. What Brazil considers to be 
discriminatory is that no such requirement applies to fresh chicken — a fact, which in turn is 
uncontested by Indonesia.429 Brazil's argument that such difference in tr eatment results in a 
                                                
426 Brazil's first written submission, paras. 269 and 270 ; second written submission, para s. 54-56. 
427 Indonesia's first written submission, para. 147 -172. 
428 Appellate Body Report, Korea – Various Measures on Beef , para. 133.  
429 Brazil's re sponse to Panel question No. 96; Detailed Study on the Indonesian Chicken Market  (Exhibit 
BRA-02); Indonesia's first written submission paras. 130 and 135, referring to Carrick Devine,  M. Dikeman, 
Encyclopedia of Meat Sci ences, (2nd ed. Elsevier, 2014)(Exhibit IDN-48); Daryanto, Arief, Diederik De Boer, 
Dikky Indrawan, Ferry Leenstra, Huub Mudde, Idqan Fahmi, and Peter Van Horne,  Socio -economic Analysis of 
the Slaughtering Systems in the Poultry Meat Sector in Greater Jakarta Area  (2014)  (Exhibit IDN-57), para. 
14; and USAID, Indonesia’s Poultry Value Chain: Costs, Margins, Prices, and Other Issues (2013), at 4, Aug. WT/DS484/R  
 
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  discrimination of imported products vis-à-vis domestic products, is based on the uncontested fact 
that imported chicken, due to the nature of its transportation from the exporting country, is always 
frozen and can never be fresh.430 It is also uncontested that while there is some domestic frozen 
chicken, most chicken sold in Indonesia is sold fresh in traditional markets.431 Finally, as noted 
previously both parties agree that currently most traditional markets do not have cold storage 
facilities.432  
7.302.   With respect to this alleged discrimination, we consider that the relevant products for the 
likeness assessment  as submitted by Brazil  are frozen and fresh chicken. We therefore turn to 
assessing whether fresh and frozen chicken are like.  
Likene ss 
7.303.   A first argument that Brazil makes is that "likeness" must be assumed, because the origin 
of the product is the only factor that distinguishes the imported and domestic products.433 While 
we agree on the principle, which the Appellate Body has confirmed i n Argentina – Financial 
Services , we do not think it applies to the dispute at hand.434 In our view, this would be the case if 
the cold storage requirement de jure only applied to imported products.435 It is true, as Brazil 
points out, that Article 31(1) only applies to imported products.436 However, as established in our 
equivalence assessment under the Note Ad Article III above, an equivalent cold storage 
requirement applies also to domestic products. De jure , therefore, even if contained in different 
legal ins truments  (Article 31(1) of MoA 34/2016, on the one hand, and Article 22 of MoA Decree 
306/1994 on the other), no distinction is made between imported and domestic products, insofar 
as frozen and chilled products are concerned. Furthermore, de jure , fresh c hicken is not covered 
by that requirement, whether domestic or imported.437 That the latter (imported fresh chicken), in 
practice, does not exist, because all chicken is imported frozen, is not an issue of law but of fact. 
We, therefore, find that origin of the product, de jure , is not the factor that distinguishes frozen 
imported and fresh domestic chicken. Likeness, thus, needs to be established and the burden of 
doing so is on Brazil as the complaining party.438  
7.304.   Brazil, as does Indonesia, argues on the basi s of the four likeness criteria developed in 
previous disputes, namely (1) products characteristics/physical properties, (2) end uses, (3) 
consumer tastes and preferences, and (4) tariff classification.439  
7.305.   Regarding the first criterion the parties mainly de bate differences in physical properties 
arising from the freezing process. Brazil considers that the freezing process does not change the 
                                                                                                                                                  
2013 (Exhibit IDN -58). We observe that whether fresh chicken is exempted from a refrigeration requirement is 
not entirely clear in MoA Decree 306/1994 . While Article 22 seems to make a distinction between "fresh poultry 
meat" and "fresh -chilled poultry meat", other provisions in the Decree (such as Article 14(1)) seem to suggest 
that also fresh chicken meat needs to be cooled at all times. Irrespective of what is legally required, however, 
we note that the parties agree on what the factual situation is in the traditional markets, namely that freshly 
slaughtered chicken is offered for sale without being refrigerated.  
430 Brazil's opening statement at the se cond meeting of the Panel,  para. 17; Indonesia's first  written 
submission, paras. 149 and  318. 
431 See para. 7.101  above.  
432 Brazil's second written submission, para. 66; Brazil's opening  statement at the second meeting  of the 
Panel , para. 16; Indonesia's first written submission, para. 130.  
433 Brazil's second written submission, para.  48. See also Brazil's response to Panel question No. 96.  
434 Appellate Body Report , Argentina – Financial Services , para.  6.36. 
435 The Appellate Body  stated: "…we note that measures allowing the application of a presumption of 
"likeness" will typically be measures involving a de jure distinction between products of different origin." See 
Appellate Body Report , Argentina – Financial Services , para.  6.36. 
436 Brazil opening statement at the first meeting of the Panel,  para. 66.  
437 But see comment in fn  417. 
438 See Appellate Body Report, Argentina – Financial Services , paras. 6.30 and 6.42. In this dispute, the 
Appellate Body con sidered the "likeness" test under Article III:4 of the GATT in its examination of claims under 
Article  II:1 and Article  XVII:1 of the GATS, and ruled that:  
 Regarding the burden of proof in establishing "likeness" relying on the presumption approach, we no te 
that, in keeping with the general rule that the burden of proof rests upon the party that asserts the affirmative 
of a particular claim , the complainant bears the burden of making a prima facie  case that a measure draws a 
distinction between services an d service suppliers based exclusively on origin. In this regard, a panel is 
required to assess objectively the evidence and arguments forming the basis of such a contention.  (footnotes 
omitted)  
439 Appellate Body Report, EC – Asbestos , para. 101.  WT/DS484/R  
 
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  relevant properties of the product and points out that "freezing is a process capable of retaining 
the characteristics  of chicken meat and chicken products, guaranteeing their quality and sanity".440 
Indonesia, for its part, points, inter alia , to the possible presence of additional substances (brine) 
and to the risks concerning the quality and safety of the meat arising fr om undue variations in 
temperature in the handling of frozen chicken.441 
7.306.   Regarding the second criterion, Indonesia concedes that frozen and fresh chicken have 
similar end uses, which Brazil also describes as "food consumption".442 
7.307.   Regarding the third criterion , Brazil considers that the Indonesian consumers' tastes and 
habits related to chicken meat and chicken products would be adequately met by the Brazilian 
products.443 Indonesia refers to the fact that currently most consumers source their chicken from 
tradit ional markets and contends that Indonesians prefer fresh over frozen chicken.444  
7.308.   Finally, regarding the fourth criterion, Brazil points out that "both imported and domestic 
products are subject to the same HS codes of the Gallus domesticus species chicken m eat"445, 
whereas Indonesia focuses on the differences in HS codes at the six -digit level as regards fresh 
and frozen chicken.446  
7.309.   We recall the Appellate Body's guidance that the assessment of likeness of products is 
fundamentally about their competitive relat ionship in the marketplace.447 A panel may carry out 
this assessment by relying on the above four likeness criteria, which the Appellate Body described 
as "tools" to assist a panel in sorting and examining the relevant evidence.448 The Appellate Body 
also note d that "t he kind of evidence to be examined in assessing the ꞋlikenessꞋ of products will, 
necessarily, depend upon the particular products and the legal provision at issue ".449 
7.310.   Both parties refer to the need for the panel to look at the specific marketplace when 
assessing the competitive relationship in light of the above criteria.450 We agree. We consider the 
specific marketplace to be the one which is affected by the measure at issue. In other words, the 
concrete circumstances envisaged by the measure at issu e define the specific marketplace in 
respect of which the competitive relationship is to be assessed. That assessment is about how the 
products compete with each other but for the measure .451  
7.311.   We observe that the cold storage requirement concerns the offerin g for sale in markets 
and that the discrimination that Brazil alleges, specifically concerns the offering for sale in 
traditional markets. As we noted above, in those traditional markets, which currently do not have 
(or only marginally have) cold storage f acilities, chicken is mostly sold freshly slaughtered.452 As 
Indonesia explains the chicken is mostly slaughtered in nearby slaughter points during the night or 
in the early morning hours and then brought to the market in plastic crates.453 It is then displaye d 
in the traditional market without being in cold storage.  
                                                
440 Brazil's opening statement at the first meeting of the Panel,  para. 7 2. 
441 Indonesia's first written submission, paras . 152-157, in particular, paras. 155 and 156.  
442 Brazil's first written submission, para. 273; Indonesia's first written submission, para. 159.  
443 Brazil's first written submission, para. 273.  
444 Indonesia's first written submission, para.159.  
445 Brazil's first written submission, para. 273.  
446 Indonesia's first written submission, para. 163.  
447 Appellate Body Report, EC – Asbestos, para. 103.  
448 Appellate B ody Report, EC – Asbestos, para. 102.  
449 Appellate Body Report, EC – Asbestos, para. 103.  
450 Indonesia's first written submission, para. 160;  and Brazil's second written submission, para. 45.  
451 We are mindful of the Appellate Body's caveat, stated in the con text of Article III:2 that a "but for" 
test could be "overly restrictive" if it assumes that the measure at issue is the only factor influencing 
competition. (See Appellate Body Report, Philippines – Distilled Spirits , para. 227). However, we consider the 
"but for" test a useful starting point for a likeness analysis and do not exclude consideration of other factors.  
452 See para. 7.101  above . 
453 Indonesia's first written submission, para. 135; Indonesia's response to Panel ques tion No. 100; 
Daryanto, Arief, Diederik De Boer, Dikky Indrawan, Ferry Leenstra, Huub Mudde, Idqan Fahmi, and Peter Van 
Horne,  Socio -economic Analysis of the Slaughtering Systems in the Poultry Meat Sector in Greater Jakarta 
Area (2014)  (Exhibit IDN -57). See also Brazil's response to Panel question No. 100 referring to a market study 
according to which some of the chicken is slaughtered directly in the market (Exhibit BRA -02). According to 
Indonesia the latter is not permitted under  the law . See Indonesia's  comments on Brazil's response to Panel WT/DS484/R  
 
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  7.312.    But for the measure , frozen chicken would not have to be kept in cold storage, but would 
be offered – thawing - alongside fresh chicken.454 In our view, it is this specific situation that we 
need t o consider when assessing the competitive relationship between the products.       
7.313.   We observe that with regard to this specific situation — frozen chicken thawing outside at 
tropical temperatures — Indonesia has pointed to food safety concerns. As seen abo ve, 
Indonesia's argument is that thawing frozen chicken outside at tropical temperatures increases 
microbial growth which can lead to food borne illnesses.455 In the context of our analysis under 
Article XX(b), we have found that Indonesia has demonstrated t he existence of this risk, which 
Brazil has failed to rebut.  
7.314.   As noted above, in the context of the likeness analysis, Indonesia has referred to this issue 
in its discussion of physical properties.456  
7.315.   We recall that in EC – Asbestos , the Appellate Body cons idered the health risks associated 
with the product at issue to be relevant to the assessment of physical properties.457 The health risk 
that the Appellate Body considered in that case was the carcinogenicity and toxicity of fibres 
containing asbestos as opp osed to fibres not containing asbestos (which were found not to present 
the same risk).458 The Appellate Body found that physical difference to be "highly significant" 
indicating that the products were not like.459 The Appellate Body held that in order to over come 
such indication, a higher burden was placed on the complaining Member to establish likeness on 
the basis of other criteria.460 In addition to being relevant to physical properties, the Appellate 
Body also considered it "very likely" that the consumers' tastes and habits would be shaped by the 
health risk associated with the product.461 Because it had failed to present, inter alia , evidence on 
consumer tastes and habits (which would have had to show that the health risk did not affect 
consumer choice), the Appellate Body found that the complaining party had not met its burden of 
proof in establishing likeness.462   
7.316.   We are mindful that our case presents certain differences. In particular, the health risk 
discussed here (food -borne illnesses) is not associated w ith the product as such (frozen chicken) 
but rather with the process of thawing it at tropical temperatures. In our view, however, this 
difference does not make the above ruling by the Appellate Body less pertinent . The reason is that 
it is this specific p rocess that the cold storage requirement, alleged to be discriminatory, seeks to 
prevent, not the sale of the product (frozen chicken) as such.   
7.317.   Therefore, in relying on the Appellate Body's jurisprudence in the above case, we consider 
the health risk ass ociated with thawing frozen chicken at tropical temperatures to be relevant to 
our assessment of physical properties of the product at issue. As noted above, we have found that 
Indonesia has established that there is such a risk. Brazil has suggested that there is a similar if 
not greater risk with leaving fresh chicken on display outside.463 However, Brazil has not submitted 
any evidence to this effect. On the basis of the evidence before us,  we therefore find that the 
difference in health risk arising from previously frozen/thawing chicken and fresh chicken presents 
a difference in physical properties that indicates non -likeness.464 
                                                                                                                                                  
question No. 100. In our view, the question of whether chickens are slaughtered directly in the market 
regardless of whether it is permitted by law, does not affect our analysis, as they are in any event, freshly 
slaughtered.  
454 Brazil seems to acknowledge that this is the situation envisaged . See Brazil's opening statement at 
the first meeting of the Panel,  para. 69.  
455 See section 7.5.2.4.1.1  above.  
456 See para. 7.305  above ; Indonesia's first written submission, para. 156.  
457 Appellate Body Report, EC – Asbestos , para. 116.  See also Appellate Body Report, US – Clove 
Cigarettes , para.118.  
458 Appellate Body Report, EC – Asbestos , para. 114.  
459 Appellate Body Rep ort, EC – Asbestos , para. 114.  
460 Appellate Body Report, EC – Asbestos , para. 118.  
461 Appellate Body Report, EC – Asbestos , para. 122.  See also Appellate Body Report, US – Clove 
Cigarettes , para.118.  
462 Appellate Body Report, EC – Asbestos , paras. 139 and 141 . 
463 Brazil's second written submission, para. 62; and response to Panel question No. 90. 
464 We refrain from taking a position on the duration for which fresh chicken can be displayed at outside 
temperatures for it to become unfit for human consumption.  WT/DS484/R  
 
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  7.318.   Turning to the other criteria, in light of the health risk identified, we consider the 
assessment of consumer  tastes and habits t o be particularly relevant. In line with the above case 
law, we take the view that the health risk associated with improperly thawed chicken may well be 
an aspect that would affect a consumer's choice between buying such a thawed chicken and 
buying a fresh  one. We are cognizant of the fact that neither party has specifically discussed this 
aspect in its submissions nor presented any evidence in this regard. However, as noted above, the 
physical difference in health risks between fresh and thawing chicken in dicates that there is no 
likeness.465 As the Appellate Body noted, in the absence of evidence on consumer tastes, "there is 
no basis for overcoming the inference, drawn from the different physical properties of the products 
that the products are not ꞋlikeꞋ".466 The absence of evidence, therefore, is one that Brazil is 
accountable for as the party bearing the burden of proof.467     
7.319.   Finally , we address the remaining two elements. Regarding end use we note the parties' 
agreement on the end use  (food consumption), a  point, which, therefore, does not add weight to 
either side of the analysis. As regards the tariff line , we note that the parties debate the difference 
between frozen and fresh, while our analysis is focused on thawing versus fresh. Therefore, we 
consider  that the difference at six -digit level, between frozen and fresh is to be considered with 
some caution, even if it supports the above conclusion th at non -likeness is indicated . As seen 
above, Brazil has not been able to rebut that indication.  
7.320.   We, therefor e, find that frozen and fresh chicken are not like in the specific circumstances 
envisaged by the cold storage requirement. Consequently we find that the intended use 
requirement does not breach Article III:4  with respect to its cold storage requirement . 
Whether the intended use requirement is inconsistent with Article III:4  with respect to 
its enforcement provisions  
7.321.   The second alleged discriminatory aspect raised by Brazil concerns the enforcement 
provisions of the intended use requirement. Brazil's argum ent essentially is that the cold storage 
requirement is enforced in a much stricter and more burdensome way for imported products than 
for domestic products.468 Indonesia factually contests certain aspects raised by Brazil and 
generally takes the view that e nforcement provisions are only "slightly different".469  
Likeness  
7.322.   We observe that the enforcement provisions concern those products which are covered by 
the cold storage requirement, be it under Article 31(1) of MoA 34/2016 or under MoA Decree 
306/1994. Thes e are frozen and chilled chicken meat, both on the imported and on the domestic 
side. Thus, contrary to the alleged discrimination discussed above, likeness can be presumed 
insofar as origin is the only factor that distinguishes the enforcement provisions as they apply to 
imported frozen/chilled chicken and those applying to domestic frozen/chilled chicken.  
Less favourable treatment  
7.323.   We, therefore, turn to the question whether there is less favourable treatment. We recall 
that the Appellate Body pointed out  that a  "formal difference in treatment between imported and 
like domestic products is […] neither necessary, nor sufficient, to show a violation of Article 
III:4".470 Instead, as the Appellate Body explained, to establish whether there is less favourable 
treatment, a panel needs to examine whether "a measure modifies the conditions of competition in 
the relevant market to the detriment of imported products ".471 
7.324.   To assess this question, we first need to establish the factual situation. Starting with the 
domesti c side of the enforcement provisions, Indonesia explains that MoA Decree 306/1994 itself 
does not contain enforcement provisions, but that those are contained in "higher laws", to which 
                                                
465 See para. 7.315  above.  
466 Appellate Body Report, EC-Asbestos , para. 121.  
467 Appellate Body Report, EC-Asbestos , para. 139.  
468 Brazil's opening  statement at the second meeting of the Panel,  paras. 19-21. 
469 Indonesia's response to Panel question No s. 88 and 91.  
470 Appellate Body Report, Korea – Various Measure on Beef , para. 137.  
471 Appellate Body Report, Korea – Various Measures on Beef , para. 137.  WT/DS484/R  
 
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  the Decree refers and which are currently Law 18/2009 and Government R egulation 95/2012.472 
Indonesia describes these enforcement provisions as essentially consisting in surveillance carried 
out by a public health supervisor, who has the authority to inspect "animal product business units" 
and, inter alia , to postpone or stop the production process.473 Indonesia further submits that local 
regulation contributes to supervision. Indonesia provides the example of Jakarta, which requires 
meat distributors to obtain a meat distributor licence, requiring them to provide information, inter 
alia, about place of sale including storage facilities.474 To obtain the licence, meat distributors also 
need to submit a sales report for the last three months.475  
7.325.   Turning to the imported products side of the enforcement provisions, we recall our above 
description of the requirement to submit a distribution plan and a weekly distribution report, as 
well as our description of the various sanction provisions set out in Article 38 of MoA 34/2016.  
7.326.   In addressing the differences between these enforcement provi sions, Brazil highlights 
three issues. The first is the strict sanctions that apply to importers deviating from the limitation 
on the allowed uses, which could result in a total exclusion of the importer from the Indonesian 
market for one year.476 Indonesia confirms that the sanction provided for under Article 38(4) 
(written warning and, if ignored, temporary suspension for one year) applies "when an importer 
fails to comply with Article 32(1)(b) by selling chicken meat and chicken product at a market 
without  cold chain facilities ".477 In comparison, domestic sellers who would sell frozen or chilled 
chicken without respecting the cold storage requirement, do not face a comparable sanction – if 
any sanction at all. While Indonesia has referred to supervision by t he public health supervisor 
over animal products business units, we are not convinced that there is a legal requirement for 
such supervision to apply to sellers in the traditional market.478 However, even if there were, the 
strictest "sanction" which the pub lic health supervisor seems to be able to apply is to stop or 
postpone the production process. Furthermore, we note that Indonesia has not referred to any 
sanction that could apply to the domestic distributor who sold the frozen chicken to the seller in 
the traditional market. For these reasons, we find that the stricter sanctions applying to imported 
frozen and chilled chicken, result in a competitive disadvantage for imported products  
7.327.   The second issue that Brazil refers to is that the commitment to certa in intended uses (to 
obtain an MoA Import Recommendation) restricts the importer to not selling elsewhere, whereas 
no such restriction exists for domestic sellers.479 We note that the MoA Import Recommendation 
itself refers to the intended uses on a general basis as "hotel, restaurant, market with cold chain 
facilities".480 Thus, the import recommendation itself does not prevent an importer from switching 
within those allowed uses.481 However, with the requirement to provide a distribution plan and a 
weekly distr ibution report, the situation has changed. We recall that the importer, in the 
distribution plan, has to identify, inter alia , the name and address of the buyer as well as the 
price.482 Like Brazil, we take the view that the importer is effectively bound by this list, which is 
checked through the weekly distribution reports. As a consequence the importer is prevented 
"from actually distributing the imported chicken meat and chicken product after the import 
operation occurs to the best business offers it may b e able to get ".483  
                                                
472 Indonesia's response to Panel question No.89.  
473 Indonesia's response to Panel questi on No.89.  
474 Indonesia's response to Panel question No. 88(d) . See also Requirements to Obtain a Meat 
Distributor License, retrieved from: http://pelayanan.jakarta.go.id/site/detailperiz inan/472  (Exhibit IDN -131). 
475 Indonesia's response to Panel question No. 88(d) . See also Requirements to Obtain a Meat 
Distributor License, retrieved from: http://pelayanan.jakarta.go. id/site/detailperizinan/472  (Exhibit IDN -131). 
476 Brazil's first written submission, paras.104 and 105.  
477 Indonesia's response to Panel question No. 88(a).  
478 We note that Article 37(2) of Regulation 95/2012 defines "animal product business units" as 
includ ing "a milking place, egg production place, other Animal origin food production place, non food Animal 
products production place, and collecting and sales place".  
479 Brazil's response to Panel question No. 87.  
480 See example provided in Import Recommendation  by the Minister of Agriculture for beef from 
Australia ( Exhibit IDN -92(b) ). 
481 See also Indonesia's second written submission, para. 141.  
482 See Format -2, Ministry of Agriculture Regulation 34/Permentan/PK210/7/2016  (Exhibit BRA - 48). 
483 Brazil's response to  Panel question No.87.  WT/DS484/R  
 
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  7.328.   Indonesia argues that the distribution plan has no binding effect.484 Central to its argument 
is the sanction provision contained in Article 38(3)(b).485 Indonesia submits that this sanction 
relates to an importer not submitting any distribut ion plan.486 We note however that Article 23(2) 
provides that the application for an MoA Import Recommendation would be "rejected" if it is 
"incomplete and/or incorrect".487 To us, the scenario suggested by Indonesia, that an importer 
would not submit any dist ribution plan, is covered by this provision. An application that does not 
have a distribution plan attached would never proceed, but would be rejected due to it being 
incomplete. Indonesia's reading of Article  38(3)(b), therefore, in our view, is in direct  conflict with 
Article 23(2), which already provides for a sanction for not submitting a distribution plan. A 
reasonable reading of Article 38(3)(b) would reflect that this provision addresses the particular 
situation where the importer, while having submi tted such a plan, does not do what is stated in it. 
In our reading, therefore, Article 38(3)(b) does provide for a sanction if and when the importer 
does not carry out the sales as contained in the distribution plan. We therefore find that the 
distribution  plan has the effect of binding the importer to specific sales identified at the moment of 
the application for an MoA Import Recommendation. This results in a competitive disadvantage for 
imported products given that no such restriction exists for domestic  sellers of frozen and chilled 
chicken meat.  
7.329.   The third issue that Brazil refers to is the burden and cost arising from having to submit a 
distribution plan and a weekly distribution report.488 We agree that a one -time requirement for 
domestic meat distribut ors to submit a sales report for the last three months, (at least in the area 
of Jakarta) does not compare with the burden and cost incurred by the importer, which arises on a 
continuous basis.489 We, therefore, find that the increased administrative burden and cost result in 
a competitive disadvantage for imports of frozen and chilled chicken.  
7.330.   On the basis of these three issues, collectively and individually, we find that there is less 
favourable treatment of imported frozen and chilled chicken meat and chic ken products in respect 
of the enforcement provisions of the intended use requirement.  
7.331.   Consequently we find that the  intended use requirement is  inconsistent with Article III:4 of 
the GATT 1994  with respect to its  enforcement provisions . 
7.5.3.3.3.3   Whether the enfor cement provisions are justified under Article XX of the 
GATT 1994  
7.332.   Indonesia submits that its defence under Article XX(b) and (d) of the GATT 1994 applies 
mutatis mutandis to measures under the new regime, i.e. MoA 34/2016.490  
7.333.   In line with the relevant juris prudence, we note that what Indonesia would need to justify 
is the difference in treatment the enforcement provisions make for domestic and imported 
                                                
484 Indonesia's response to Panel question No. 8 8 (a); and Indonesia's comments on Brazil's response to 
Panel question No. 87.  
485 Indonesia's comments on Brazil's response to Panel question No. 87, in particular, para. 51 . See also 
Indonesia's response to Panel question No. 88(a).  
486 Indonesia's response to Panel question No. 88(a).  
487 Article 23 states in relevant part:  
 
(1) The head of PPVTPP after receiving the application online as  
referred to in Article 20 is to verify the completenes s of 
administration requirements as referred to in Article 22, within  
a maximum period of one (1) working day shall provide answer  
either to reject or approve.  
 
(2) The application is rejected as referred to in paragraph (1) if the  
administrative requireme nts as referred to in Article 22 is  
incomplete and/or incorrect . 
 
(3)… 
(emphasis added)  
488 Brazil's comments on Indonesia's response to Panel question No. 88(d).  
489 We recall that the distribution plan has to be submitted with every application for an MoA Im port 
recommendation; furthermore, the distribution report has to be submitted on a weekly basis.  
490 Indonesia's response to Panel question No. 66(b).  WT/DS484/R  
 
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  products.491 Indonesia's arguments under Article XX(b) and (d) pertain to the health risk from 
improperly tha wed chicken meat and to the risk of consumers being deceived into buying thawed 
chicken instead of fresh chicken.492 We observe that these arguments do not explain the difference 
in treatment of domestic and imported products in respect of  the enforcement pr ovisions.  
7.334.   We, thus, find that Indonesia has not put forward a prima facie case justifying the specific 
breach of Article III:4 which we identified above.  
7.335.   We, therefore, conclude that the intended use requirement, where its enforcement 
provisions are conce rned, is inconsistent with Article III:4 and is not justified under Article XX(b) 
or (d) of the GATT 1994.   
7.5.3.3.3.4   Claims under Article XI of the GATT 1994 and Article 4.2 of the Agreement 
on Agriculture  
7.336.   Brazil also makes claims under Article XI of the GATT 1994  and Article 4.2 of the 
Agreement on Agriculture . We recall that the aim of the dispute settlement mechanism is to 
"secure a positive solution to a dispute" (Article 3.7 of the DSU) and that our duty, according to 
Article 11 of the DSU is to "make such oth er findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in the covered agreements ". We consider 
that the findings that we have made above are sufficient to secure a positive solution to the 
dispute. We are min dful that we have not considered the intended use requirement in its latest 
enactment under MoA 34/2016, under Article XI of the GATT 1994 or Article 4.2 of the Agreement 
on Agriculture . However, we consider that certain findings that we made above make cl ear that 
the outcome of a consideration under Article XI would be the same as under Article III:4. We refer, 
in particular to our finding in respect of the previous version of the intended use requirement (as 
enacted through MoA 58/2015) which already iden tified the cold storage requirement as a less 
trade -restrictive alternative that would have justified the intended use requirement under 
Article  XX(b). We also find relevant, in this context, our findings above, in the context of our 
Article III:4 analysis  of the most recent version of the intended use requirement, that the cold 
storage requirement also applies to domestic frozen and chilled products and does not constitute a 
breach of Article III:4. On this basis, we apply judicial economy to Article XI (a nd Article 4.2 of the 
Agreement on Agriculture ). Under the circumstances, we consider that we do not need to address 
and answer the question raised by Indonesia, whether the application of Article XI is excluded 
because of the applicability Article III:4.  
7.5.4   Conclusion  
7.337.   In sum , we find that the intended use requirement as enacted through MoA  58/2015 is 
inconsistent with Article XI of the GATT 1994 and not justified under Article XX(b) or Article XX (d) 
of the GATT 1994 . Having found that the intended use requir ement as enacted through 
MoA 58/2015 is inconsistent with  Article XI of the GATT 1994, we consider that it is not necessary 
to address Brazil's claim under Article 4.2 of the Agreement on Agriculture  in order to secure a 
positive solution to this dispute.   
7.338.   We further find that the intended use requirement has not ceased to exist by virtue of the 
relevant provisions in MoA 34/2016.  Furthermore, we find that we have jurisdiction over these 
provisions.  In respect of th e cold storage requirement , we find that the intended use requirement 
as enacted through the  relevant provisions in MoA 34/2016, is not inconsistent with Article III:4 of 
the GATT 1994 . With respect to  the enforcement provisions , we find that the intended use 
requirement  is inconsistent with Artic le III:4 of the GATT 1994 and is not justified under 
Article  XX(b) or (d) of the GATT 1994.  We apply judicial economy with regard to Brazil's claims 
under Article XI of the GATT 1994 and Article 4.2 of the Agreement  on Agriculture and, therefore, 
leave ope n the question as to whether Articles III:4 and XI are mutually exclusive.   
                                                
491 Appellate Body Report, Thailand – Cigarettes , para. 177.  
492 See section 7.5.2.4 above.  WT/DS484/R  
 
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  7.6  Individual measure 3: Certain aspects of Indonesia's i mport licensing regime  
7.6.1   Introduction  
7.339.   We now turn to the third of the individual measures that Brazil challenges. Brazil claims  
that certain aspects of Indonesia's import licensing regime are inconsistent with a number of 
Indonesia's obligations under the covered agreements. We recall that in section 7.3 above we 
provide a brief overview of the main fe atures of Indonesia's import licensing regime, some of 
which are germane to this section.  
7.340.   As indicated in section 7.1.2.3  above, we found that Brazil has not challenged Indonesia's 
import licensing regime as a whole. Instead, Brazil has raised a number of claims in respect of 
certain aspects of the licensing regime. The main elements of Indonesia's import licensing regime 
challenged by Brazil, and the respective claims raised by Brazil throughout these proceedings, are 
summariz ed in the following table493:  
Table 4 Overview of claims made by Brazil  
Measure  Provisions allegedly breached  
Positive list requirement  Articles: XI:1 of the GATT 1994. 4.2 of the 
Agreement on Agriculture , and 3.2 of the 
Import Lice nsing Agreement  Intended use requirement  
Application windows and validity periods  
Fixed licence terms  
Discretionary import 
licensing  Letter of 
recommendation from 
provincial livestock 
services office  
Articles: 4.2 of the Agreement on Agriculture  
and 3.2 of the Import Licensing Agreement  Supervision on the 
compliance of 
veterinary public 
health requirements  
MoT's discretion to 
determine the amount 
of imported goods in 
the MoA Import 
Recommendation  
 
7.341.   We note that Brazil additionally argues that c ertain other elements of Indonesia's import 
licensing regime are WTO -inconsistent. In particular, Brazil claims that the following elements are 
inconsistent with Indonesia's obligations under the covered agreements: (i) the denial of import 
licences to sec ure price stabilization494; and ( ii) additional restrictions on "certain products" and 
"processed products".495 
7.342.   In the subsequent sections, we will separately address each of the elements listed in the 
table above. We will discuss, in a final section, the two elements indicated in the previous 
paragraph. Before moving on to the examination of each element, we will provide a brief overview 
of Indonesia's import licensing regime as well as present the order of analysis that we will follow in 
addressing the partie s' claims and defences.  
7.6.2   Overview of Indonesia's import licensing regime  
7.343.   As noted in section  7.3 above, an importer wishing to import chicken products into 
Indonesia must first obtain an MoA  Import Recommendation and an MoT Impo rt Approval. The 
                                                
493 Brazil's first written submission, paras. 200, 228 and 244; response to Panel question No. 15(a); 
second written submission, paras. 104 -105; and response to Panel question No. 108(a).   
494 Brazil's response to Panel question No. 129.  
495 Brazil 's response to Panel question No. 15(b).  WT/DS484/R  
 
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  figure  below provides an overview of the steps and timeframes relative to obtaining these licensing 
documents, on the basis of the relevant provisions of MoA 58/2015 and MoT 05/2016.496 
Figure 2 Overview of the appli cation and approval of the MoA Import Recommendation 
and the MoT Import Approval  
 
 
7.344.   As explained in detail below, Brazil takes issue with certain aspects relative to these two 
licensing documents, as well as with some of the documents required to obtain th e MoA Import 
Recommendation and the MoT Import Approval.497 
7.6.3   Order of analysis  
7.345.   Brazil has raised claims under Article XI:1 of the GATT 1994 and Article 4.2 of the 
Agreement on Agriculture , on the one hand, and Article 3.2 of the Import Licensing Agreement, on  
the other hand, for most elements of Indonesia's import licensing regime.  
                                                
496 The time -frames for the issuance of the MoA Import Recommendation and the MoT Import Approval 
indicated in the figure  above are based on Articles 24(1) and 25(1) of MoA 58/2015 (Exhibit BRA -01/IDN -24) 
and Article 10(3) of MoT 05/2016 (Exhibit BRA -03/IDN -39), for the MoA Import Recommendation and the MoT 
Import Approval, respectively.  
497 According to Article 23(1) of MoA 58/2015 (Exhibit BRA -01/IDN -24), an importer must submit the 
following documents with an applicat ion for an MoA Import Recommendation: (a)  Identification Card (KTP) 
and/or company management identification; (b)  Taxpayer Identification Number (NPWP); (c)  Business and 
Trade License (SIUP); (d)  Livestock and Animal Health Registration Certificate or Busi ness Licence; 
(e) Company’s deed of incorporation and the last amendment thereof; (f)  Veterinary Control Number (NKV); 
(g) Importer Identity Number (API); (h)  Statement Letter with stamp duty affixed accompanied with 
supporting document which declare owner ship of cold storage and refrigerated vehicle, with the exception of 
ready -to-eat processed food that do not need cold storage facility as informed on the product label; (i)  Letter 
of recommendation from provincial livestock services office; (j)  Employing veterinarian with competency in the 
field of veterinary public health, proven by an assignment letter or work contract from company management; 
(k) Report of import realization from the previous period; (l)  Provide the evidence of local cattle procurement 
verified by provincial and/or district/municipality livestock services offices of the origin of the cattle; and 
(m) Statement letter with stamp duty affixed declaring the document submitted is correct and valid.   
According to Article 10(2) of MoT 5/2016 (E xhibit BRA -03/IDN -39), an importer must submit the 
following documents with an application for an MoT Import Approval: (a)  Company’s Deed of Establishment 
together with  amendment thereto, for Import of Animal and Animal Product as per Appendix III hereto; 
(b) API; (c)  evidence of ownership of maintenance place and evidence of ownership of Animal Slaughterhouse 
or work contract with Animal Slaughterhouse already fulfilling the standard based on the provisions in the 
legislation, for Import of Juvenile as per  Appendix III hereto; (d)  evidence of ownership of cold storage and 
evidence of ownership of cold transportation means, for Import of Animal Product as per Appendix III hereto; 
and (e) Recommendation of the Minister of Agriculture or official so appointed by the Minister of Agriculture, 
for Import of Animal and Animal Product as per Appendices III and IV hereto; or (f)  Recommendation of the 
Head of Drug And Food Administration Agency or official so appointed by the Head of Drug And Food 
Administration Agenc y for Import of Processed Animal Product and Recommendation of the Minister of 
Agriculture or official so appointed by the Minister of Agriculture for Import of Processed Animal Product still 
having risk of zoonosis spread as per Appendix IV hereto.  WT/DS484/R  
 
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  7.346.   Indonesia argues that Brazil wrongly raised these claims, on the basis of the same 
arguments, under Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture , 
and Article 3.2 of the Import Licensing Agreement, because it fail ed to distinguish between the 
scope of application of the provisions in these three agreements.498 Brazil does not disagree with 
Indonesia that import licensing rules are not subject to the Imp ort Licensing Agreement, but 
considers that all the elements of Indonesia's import licensing regime constitute import licensing 
procedures.499 Moreover, both parties agree that an import licensing procedure can simultaneously 
breach these three provisions.500 
7.347.   We consider that the disagreement between the parties does not relate to the scope of 
application of the Import Licensing Agreement. Rather, the parties have differing views on whether 
some of the challenged measures constitute import licensing procedures and thus fall within the 
scope of the Import Licensing Agreement.  
7.348.   The Appellate Body has made it clear that the Import Licensing Agreement applies to 
import licensing procedures  and not to import licensing rules.501 If we find that any of the 
challenged mea sures is an import licensing rule, we will not need to examine Brazil's claims under 
Article  3.2 of the Import Licensing Agreement, given that it would not be applicable to that 
measure. However, the question of the proper order of analysis arises  when we are confronted 
with a measure that we have found to constitute an import licensing procedure.  
7.349.   As we have already noted ( see paragraph  7.57 above), a panel is free to structure its order 
of analysis. In doing so, a panel should follow a proper logical sequence.502 Nonetheless, previous 
panels and the Appellate Body have determined the proper logical sequence in examining claims 
raised under different agreements of Annex 1A of the WTO Agreement by first identifying the most 
relevant  provision in a dispute.503 
7.350.   The question that we are confronted with is whether we should begin our examination of 
the challenged measures with Article 3.2 of the Import Licensing Agreement, on the one hand, or 
with Article XI:1 of the GATT and Article 4.2 o f Agreement on Agriculture , on the other hand.504  
7.351.   Brazil considers that Article XI:1 of the GATT 1994, Article 4.2 of the Agreement on 
Agriculture , and Article 3.2 of the Import Licensing Agreement can and should apply 
simultaneously.505 Indonesia considers t hat Article 4.2 is lex specialis in respect of both the GATT 
1994 and the Import Licensing Agreement. Indonesia considers that this is less clear for the 
relationship between Article XI:1 of the GATT 1994 and Article 3.2 of the Import Licensing 
Agreement, because the scope of application of these provisions is different. Indonesia further 
notes that the general approach of other panels has been to exercise judicial economy with respect 
to claims under the Import Licensing Agreement when they had already fou nd the substantive 
aspects of the import licensing regime to be inconsistent with Article XI:1.506 
7.352.   We consider that the most appropriate manner to structure our analysis is by first 
assessing Brazil's claims under Article XI:1 or Article 4.2, as relevant. We  will then examine 
                                                
498 Indonesia's first written submission, paras. 76 -79. 
499 Brazil's first written submission, paras. 135, 137, 139 , and 143.  
500 Brazil's response to Panel question No. 49; and Indonesia's response to Panel question No. 49.  
501 Appellate  Body Report , EC – Bananas III , para. 197.  
502 See para. 7.58 above . 
503 See Appellate Body Reports, EC – Bananas III , para. 204 (concluding that the panel should have 
applied the Agreement on Import Licensing Procedures (Article 1.3) before the GATT 1994 (Art icle X:3(a)). See 
also Panel Reports , Indonesia - Import Licensing Regimes (New Zealand/US) , para. 7.33 (examining first 
Article  XI:1 of the GATT 1994 before Article 4.2 of the Agreement on Agriculture because it deals more 
specifically with import restric tions); US – Animals , paras. 7.7 -7.12 (first examining claims under the SPS 
Agreement as it is more specific than the GATT 1994; such approach was followed by other panels referred to 
in para. 7.10); and EC – Sardines , paras. 7.15 -7.19 (first examining cla ims under the TBT Agreement as it is a 
more specific agreement than the GATT 1994).  
504 We recall that in section 7.2.3.2  above, we concluded and explained why we begin our analysis under 
Article XI:1 of the GATT 1994 and only tu rn to Article 4.2 of the Agreement on Agriculture  if there is no finding 
of inconsistency under Article XI:1.  
505 See Brazil's response to Panel question No. 49.  
506 See Indonesia's response to Panel question No. 49.  WT/DS484/R  
 
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  Brazil's claims under Article 3.2 of the Import Licensing Agreement. In our view, this approach 
provide s a logical sequence  for the  following  reasons .507  
7.353.   First, we note that Article  XI:1 of the GATT  1994 imposes a substantive obligation o n 
Members to refrain from imposing prohibitions or restrictions on the importation or the exportation 
of goods. In contrast, Article 3.2 of the Import Licensing Agreement deals with the administration 
of import licensing procedures.508 Regarding which of the se provisions is lex specialis , previous 
panels have considered that provisions of the covered agreement that deal with the substantive 
content of a measure, such as Article XI:1 of the GATT 1994, are more specific than those that 
deal with the application  and administration of a measure, such as Article 3.2 of the Import 
Licensing Agreement.509 These panels reached this conclusion when confronted with claims under 
these two provisions.510 
7.354.   Second, we note that the Appellate Body in EC – Bananas III  referred to the decision of the 
panel in that dispute to begin its analysis of the claims raised by the complainants under 
Article  X:3(a) of the GATT  1994 before assessing those raised under the Import Licensing 
Agreement. The Appellate  Body observed  that "the Panel, in our view, should have applied the 
Licensing Agreement  first, since this agreement deals specifically, and in detail, with the 
administration of import licensing procedures" .511 We consider the situation in that dispute to be 
different from the one before us. In EC – Bananas III , the Appellate Body was confronted with a 
situation where the complainants raised claims under provisions that govern the administration 
and application of measures, rather than their substantive content. In particular, the Appellat e 
Body dealt with claims under Articles X:3(a) of the GATT 1994 and 1.3 of the Import Licensing 
Agreement. We are examining a different situation. Brazil has raised claims under provisions that 
set out substantive obligations, such as Articles XI:1 of the GATT 1994 and 4.2 of the Agreement 
on Agriculture , as well as under provisions pertaining to the administration and application of 
measures, such as Article  3.2 of the Import Licensing Agreement.  
7.355.   We will thus begin our analysis by examining the challenged  elements with regard to 
Article  XI:1 of the GATT 1994 or Article 4.2 of the Agreement on Agriculture , as relevant.  
7.6.4   Analysis of the p ositive list requirement and  the intended use requirement  as 
specific aspects of Indonesia's licensing regime   
7.356.   We recall th at Brazil challenged the positive list requirement and the intended use 
requirement individually a nd as elements of Indonesia's import licensing regime. Both Brazil512 and 
Indonesia513 have indicated that their claims and defences concerning these measures as elements 
of Indonesia's import licensing regime, are the same as those discussed with respect to these 
measures considered individually. We have already assessed Brazil's claims under Article  XI:1 of 
the GATT 1994 in respect of these measures (see section  7.4 above with respect to the positive list 
requirement and section 7.5 with respect to the intended use requirement).514 We therefore see no 
                                                
507 We note that at least three previous pane ls followed the same order of analysis.  See Panel Reports , 
Indonesia – Import Licensing Regimes , para. 7.35; Argentina – Import Measures , paras. 6.359 -6.361; and 
Turkey – Rice, paras. 7.38 -7.42. 
508 Appellate Body Report , EC – Bananas III , para. 197.  
509 See P anel Reports , Turkey – Rice, paras. 7.38 -7.42; and Argentina – Import Measures , para s. 6.359 -
6.361.  
510 See Panel Reports , Turkey – Rice, paras. 7.38 -7.42; and Argentina – Import Measures , para s. 6.359 -
6.361.  
511 Appellate Body Report, EC – Bananas III, para. 204. 
512 Brazil's first written submission, paras. 201 and 228 -231; and second written submission, para. 148. 
See also Brazil's opening statement at the first meeting of  the Panel, para. 79.  
513 Indonesia's first written submission, paras. 247 and 295.  
514 As indicated above, we have found that the positive list requirement , as enacted through the 
relevant provisions of MoA 58/2015 and MoT 05/2016  is inconsistent with Article XI:1 , is not justified under 
Article XX(d) of the GATT 1994 (see para. 7.173  above), and has not ceased to exist  (see para. 7.174  above) . 
We also found that this measure, as enacted through the relevant provisions of MoA 34/2016 and MoT 
59/2016, is inconsistent with Article XI:1 and no t justified under Article XX(d), because it continues to apply in 
the same manner as enacted through MoA 58/2015 and MoT 05/2016 (see para. 7.175  above). With respect to 
the intended use requirement , we have found that this mea sure, as enacted through MoA 58/2015 is 
inconsistent with Article XI of the GATT 1994 and not justified under Article XX(b) or (d). We also found that 
this measure as enacted through MoA 34/2016,  where its enforcement provisions are concerned, is WT/DS484/R  
 
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  need for us to further discuss the claims and defences und er Article  XI:1 in respect of these 
measures, when considered as elements of Indonesia's import licensing regime.  
7.357.   Brazil has further claimed that the positive list requirement and the intended use 
requirement are inconsistent with Article 3.2 of the Impor t Licensing Agreement.515 Indonesia 
argues that these measures are not procedural in nature and therefore fall outside the scope of the 
Import Licensing Agreement.516 We, therefore, turn to address the applicability of the Import 
Licensing Agreement to these m easures.  
7.358.   Article 1.1 of the Import Licensing Agreement defines import licensing:  
as administrative procedures1 used for the operation of import licensing regimes 
requiring the submission of an application or other documentation (other than that 
required for customs purposes) to the relevant administrative body as a prior 
condition for importation into the customs territory of the importing Member.  
_______________________  
1 (footnote original)  Those procedures referred to as "licensing" as well as other 
similar administrative procedures.  
7.359.   Brazil argues that there might be certain grey areas when determining whether a measure 
is exclusively substantive in nature or whether it can also have a procedural dimension. Brazil 
considers this to be the case with the positive list requirement and the intended use requirement. 
Brazil considers that the positive list requirement is a procedural licensing requirement to the 
extent that it must be declared in the application to obtain the import licence and appears in the 
import licence itself. Moreover, Brazil indicates that the importer who intends to renew a licence 
has to adduce evidence that it has fully complied with such requirement.517 On the basis of similar 
arguments, Brazil considers that the intended use requireme nt constitutes an import licensing 
procedure.518 Indonesia considers these elements to constitute substantive requirements for 
importation and that Brazil has failed to demonstrate that they fall under the scope of the Import 
Licensing Agreement.519 
7.360.   In our vie w, the positive list requirement and the intended use requirement are in the 
nature of an import licensing rule. The positive list refers to the products that can be imported. To 
that extent, it does not impose a requirement to submit a particular document  or constitute a 
requirement for importation. Instead, it is a requirement that simply prohibits trade in respect of 
specific products not included therein. The intended use requirement is a substantive requirement 
that importers commit to respect when app lying both for an MoA  Import Recommendation and for 
an MoT Import Approval. Clearly such representation by the importers is made through the 
submission of a particular document, which in this case is the online application. Contrary to what 
Brazil argues, however, we do not consider that this makes the intended use requirement an 
administrative procedure used for the operation of an import licensing regime. We thus conclude 
that the positive list requirement and the intended use requirement do not fall unde r the purview 
of the Import Licensing Agreement.  
                                                                                                                                                  
inconsist ent with Article III:4 , and is not justified under Article XX(b) or (d) of the GATT 1994 (see para s. 
7.337 -7.338  above ). 
515 Brazil's first written submission, para s. 253 -257; and second written submi ssion, paras. 123 -124 and 
133-143. See also Brazil's response to Panel question Nos.  15, 16, 48; and opening statement at the second 
meeting of  the Panel, paras. 33 -34. 
516 Indonesia's response to Panel question No. 48. See also  Indonesia's  first written sub mission, para. 
287. 
517 Brazil's response to Panel question No. 16; and second written submission, paras. 133 -143. See also 
Brazil's response to Panel question No s. 15 and 48; and opening statement at the second meeting of  the Panel, 
paras. 33 -34. 
518 Brazil's  response to Panel question No. 16; and second written submission, paras. 133 -143. See also 
Brazil's response to Panel question No s. 15 and 48.  
519 Indonesia's first written submission, para. 287; response to Panel question No. 48; and second 
written submiss ion, para. 124.  WT/DS484/R  
 
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  7.6.5   Analysis of the a pplication windows, validity periods and fixed licence terms  
7.6.5.1   Introduction  
7.361.   Brazil is challenging the WTO -consistency of the application windows, the validity periods 
and the fixed licence ter ms. The application windows refer to the time in the year during which an 
importer may apply for an MoA Import Recommendation or an MoT Import Approval. The validity 
periods concern the period of time during which an importer can use such recommendation an d 
approval.  We understand Brazil to challenge the combined operation of the application windows 
and the validity periods resulting in specific trade restrictions, i.e. the impossibility to import the 
products at issue during certain periods of time.520 Lastly, the fixed licence terms relate to the 
limitation imposed by the relevant regulations of MoA and MoT on the possibility of an importer to 
modify certain aspects of an MoA  Import Recommendation and an MoT Import Approval.  
7.362.   As noted in section 7.2.4 above, the legal instruments enacting the application windows, 
the validity periods and the fixed licence terms have been revoked and replaced twice since panel 
establishment. The following tables reproduce the provisions relevant to our subsequent analysis 
in each of the three sets of legal instruments.  
Table 5 Relevant provisions regarding the a pplication and validity periods  
First set of legal 
instruments  Second set of legal 
instruments  Third set of legal in struments  
MoA 139/2014  
 
Art. 23  
(1) Application for a 
Recommendation made by 
Business Actors, State 
Owned Entities, and Regional 
Entities s shall be submitted 
on the period of 1 – 31 
December on the previous 
year, 1 – 31 March, 1 – 30 
June, 1 – 30 Septemb er of 
the current year.  
 
Art. 31  
(1) Recommendation as 
referred to in Article 30 letter 
i is valid since the date of 
issuance until to December 
31st of the current year at 
the latest.  
 MoA 58/2015  
 
Art. 22   
(1) Business Player, State Owned 
Enterprise (SOE ) and Regional 
Government Owned Enterprise  
(ROE) must submit 
Recommendation Application on 
1st -31st of December of the 
preceding year,  
on 1st - 30th of April, and on 1st - 
31st of August of the current year.  
 
 
Art. 30   
(1) Validity period of the 
Recommend ation as referred to in 
Article 29 letter i shall be 
performed in  
three periods within one year as 
follows:  
a. First period shall enter into 
force as of 1st of January up to 
30th of April;  
b. Second period shall enter into 
force as of 1st of May up to 30th  
of August;  
c. Third period shall enter into 
force as of 1st of September up to 
31st of December.  
 MoA 34/2016  
 
Art. 21 
Application for a Recommendation for 
Business Actors, State -Owned 
Enterprises, Regional -Owned  Enterprises, 
Social Institutions or Inter national  
Institution Representatives may be 
submitted at any time during working 
days.  
 
Art 27  
(1) Applicant upon receiving the 
recommendation as referred to in Article 
26 paragraph (2) must within maximum 
3 months since the issuance date, to  
submit an imp ort approval to the 
ministry which is carrying out the 
governmental affairs in the trade issues.  
(2) The recommendation as referred to 
in Article 26 paragraph (2) is only valid 
for one submission of an import license.  
(3) If within the period referred to i n 
paragraph (1) the applicant did not apply  
for an import approval, the 
recommendation will be declared invalid.  
 
Art. 30  
(1) The validity period of the 
Recommendation as referred to in Article 
28 letter(i) is for 6 (six) months 
commencing from the issuanc e date.  
 
MoT 46/2013  
 
Art. 12  
(1) Application for Import 
Approval of Animal and 
Animal Product as stated in 
Appendix I for:  
a. The first quarter, period of MoT 05/2016  
 
Art.11  
(3) The application for Approval to 
Import for Animal and Animal 
Product as per Appendix IV hereto 
may be submitted at any time.  
 MoT 59/2016  
 
Art. 12   
The application for Import Approval as 
referred to in Article 11 may be 
submitted at any time.  
 
Art. 13   
                                                
520 Brazil's first written submission, paras. 200, 202 -209. See also Brazil's opening statement at the first 
meeting of the Panel, para. 91; second written submission, para. 155; and response to Panel question No. 111.  WT/DS484/R  
 
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  First set of legal 
instruments  Second set of legal 
instruments  Third set of legal in struments  
January to March, can only 
be submitted in the month of 
December.  
b. The second quarter, period 
of April to June, can only be 
submitted in  the month of 
March.  
c. The third quarter, period of 
July to September, can only 
be submitted in the month of 
June.  
d. The fourth  quarter,  period  
of October  to December,  can 
only be 
submitted in the month of 
September . 
(2) Import Approval is issued 
at the start of each quarter.  
(3) Import Approval as 
intended in Article 11 
paragraph (3) item a is valid 
for 3 (three) months 
commencing from the date of 
issuance of the Import 
Approval.  
 
Art. 15.  
(1) Certificate of Health of 
the imported Animal and/or 
Animal Product in the  
country of origin is issued 
after RI -Animal and Animal 
Product have  
obtained Import Approval.  
(2) Import Approval Number 
is attached on the Certificate 
of Health as  
intended in paragraph (1).  Art. 12  
(1) The validity term of Approval 
to Import for Animal and Animal 
Product as per Appendices II and 
IV hereto s hall be in accordance 
with the validity term of the 
Recommendation as of the issue 
date. 
 
Art. 19  
 
(1) The Certificate of Health in the 
country of origin of Animal and/or 
Animal Product to import shall be 
issued after the issue of Approval 
to Import.  
(2) The Number of Approval to 
Import shall be affixed on the 
Certificate of Health as referred to 
in paragraph (1).  
 The validity peri od of an Import Approval 
as referred to in Article 11 is in line with 
the validity period of the 
Recommendation, from the date of 
issuance.  
 
Art. 18  
 
(1) Certificate of Health in the country of 
origin of imported animal and/or animal 
product is issued afte r the issuance of 
Import Approval.  
(2) Import Approval Number shall be 
included in the Certificate of Health as 
referred to in paragraph (1).  
 
Table 6 Relevant provisions regarding the f ixed licence terms  
First set of legal 
instrum ents Second set of legal 
instruments  Third set of legal instruments  
MoA 139/2014  
 
Art. 33  
Business Actors, State -Owned 
Entities, Regional Entities, 
Social Institutions, and Foreign  
Country/International 
Institution Representatives, 
that import carcass, me at, 
and/or its processed:  
 
a. are prohibited to request the 
change of country of origin, 
point of entry, type/category of  
carcass, meat, and/or its 
processed for the issued 
recommendation;  
… 
 
Art. 39  
Business Actors, State -Owned 
Entities, Regional Entities , 
Social Institutions, or Foreign  
Country/International MoA 58/2015  
 
Art. 32  
Business Player, State Owned 
Enterprise (SOE) and Regional 
Government Owned Enterprise 
(ROE),  
Social Insti tution, and Foreign 
Country 
Representative/International 
Institution, conducting  
importation:  
 
a. are not allowed to make any 
alteration to the Country of 
Origin, Business Unit of Origin, 
port of  
discharge, type/category of 
carcass, meat, and/or the 
proces sed product thereof to a  
Recommendation that has been 
issued;  
… 
 MoA 34/2016  
 
Art. 32  
(1) Business Actors, State -Owned 
Enterprises, Regional -Owned  
Enterprises, Social Institutions and 
Foreign  
Country/International Institution 
Representatives who imports  
carcass, meat, offal and/or their 
processed products is forbidden  
to: 
 
a. propose changes to the Country of 
Origin, Business Unit of  
origin, port of entry, type/category of the 
carcass, meat, offal  
and/ or their processed products to the 
recommendation that  
has been published;  
… 
 
Art. 38  
(4) Business Actors, State -Owned  WT/DS484/R  
 
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  First set of legal 
instrum ents Second set of legal 
instruments  Third set of legal instruments  
Institution Representatives, or 
that violate the provisions in:  
… 
e. Article 33  
 
shall be sanction by 
withdrawing of the 
recommendation, not given 
next recommendation , and  
shall be proposed to the 
Minister of Trade for a 
withdrawal of their Import 
Permit (PI) and company  
status as an Animal Product 
Registered Importer (IT).  
 Art. 38  
Business Player, State Owned 
Enterprise (SOE) and Regional 
Government Owned Enterprise 
(ROE),  
Social Institution, and Foreign 
Country 
Representative/International 
Institution that br eaches the  
provision of:  
 
(f) Article 32,  
 
shall be sanctioned by 
revocation of their 
recommendation, denial of 
their next recommendation  
application, and propose to the 
Minister administrating 
governmental trade affairs to 
revoke the  
Import Approval (PI).  
 Enterprises, Regional -Owned  
Enterprises, Social Institutions or Foreign 
Country/Institution  
Representatives which violate Article 32 
will be subject to written  
warning and if it is ignored, will be subject 
to temporary  
suspension of import recommendation for 
1 year period.  
MoT 46/2013  
 
Art. 30  
(2) Imported Animal and/or 
Animal Product with quantity, 
type, 
business unit, and/or country 
of origin that is not in 
accordance  
with the Import Approval 
and/or not in accordance with 
the 
provision in this Ministeri al 
Regulation shall be re -
exported.  
 
 MoT 05/2016  
 
Art. 27  
(2) The Animal and/or Animal 
Product imported of which the 
quantity, type, business unit, 
and/or country of origin are not 
in accordance with the 
Approval to Import and/or not 
in accordance with th e 
provisions herein shall be re -
exported.  MoT 59/2016  
 
Art. 26  
(2) Imported Animal and/or animal 
products of which the amount, type, 
business unit, and/or country of origin not 
in conformity with import approval and/or 
the requirements of this Minister 
Regulation must be re -exported.  
 
7.363.   As explained in section 7.2.4.3  above, we first analyse the measures as enacted in 
MoA 58/2015 and MoT 05/2016, that is, the version Brazil has used to develop its claims in its first 
written subm ission. We undertake this analysis only after confirming that we have jurisdiction in 
respect of the challenged measures as enacted through this  (second)  set of legal instruments.  
7.364.   With the adoption of the third and most recent set of legal instruments (i.e . MoA  34/2016 
and MoT  59/2016) the parties' arguments have evolved. Indonesia submits that the application 
windows no longer exist and that , therefore , that measure has expired.521 Brazil, however contests 
expiry.522 We address these arguments in section 7.6.5.2.2  below.  
7.6.5.2   Panel's analysis of the application windows, validity periods and the fixed 
licence terms as enacted through MoA 58/2015 and MoT 05/2016  
7.365.   Brazil has challenged the joint operation of the application windows and the validity 
periods, and separately, the fixed licence terms. We will thus first examine the application windows 
and the validity periods, as a single measure, before turning to our assessment of the fixed licence 
terms. This part of our assessment will focus  on our jurisdiction and the consistency of these 
measures with Article XI:1 of the GATT 1994. We note that Indonesia raised a joint defence f or all 
                                                
521 Indonesia's response to Panel question No. 24; second written submission, paras. 19 -22 and 129; 
response to Panel question No. 113; and comments on Brazil's response to Panel question No. 103, para. 80.  
522 Brazil's response to Panel question No. 103.  WT/DS484/R  
 
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  three measures523, we therefore pursue a joint examination of Indonesia's defence of these 
measures under Art icle XX(d). Lastly, we address Brazil's claims in respect of these measures 
under Article  4.2 of the Agreement on Agriculture  and Article 3.2 of the Import Licensing 
Agreement.  
7.6.5.2.1   Application windows and validity periods  
7.6.5.2.1.1   Measure at issue and Panel's jurisdic tion 
7.366.   On th e basis of Table 5 above , we consider the following to be the main features of the 
provisions at issue:  
a. Limit an importer's opportunity to apply for a n MoA Import Recommendation to three 
application periods each year524;  
b. Allow for the re -submission of an application for an MoA Import Recommendation to be 
made before the end of the validity period of the relevant recommendation525; 
c. Limit the issuance of a n MoA Import Recommendation to three times a year526; 
d. Condition the issua nce of an MoT Import Approval to the issuance of an MoA Import 
Recommendation527; 
e. Allow for an importer to apply for an MoT Import Approval at any time528; 
f. Limit the validity of an MoA Import Recommendation to three periods a year, of four 
months each529; 
g. Set th e validity of an MoT Import Approval to that of the MoA Import Recommendation 
upon which it is based.530 
h. Require the inclusion of the number of the MoT Import Approval on the veterinary health 
certificate,531 thus limiting the possibility of exporters to ship products before importers 
obtain an MoT Import Approval.  
7.367.   As shown in Table 5 above, t he relevant provisions in MoA  58/2015 and MoT 05/2016 , 
through which the application windows and the validity periods a re enacted,  differ from those in 
MoA 139/2014 and MoT 46/2013. As discussed above, in line with the Appellate Body's 
jurisprudence in Chile – Price Band System , we consider that our terms of reference cover 
subsequent amendments to the measure at issue so long as that measure rema ins in essence the 
same.532  
7.368.   The application windows for an MoA Import Recommendation, albeit changing from four 
times to three times a year, remain in place in MoA 58/2015 . Moreover, although an importer 
could apply for an MoT Import Recommendation at any t ime, according to MoT 05/2016 an 
importer can only apply for MoT Import Approval if it has already received an MoA  Import 
Recommendation. In our view, this has the practical effect of limiting the application windows for 
an MoT Import Approval to those tim e periods during which an importer has an existing MoA 
Import Recommendation. This means that if an importer does not hold an MoA  Import 
Recommendation, it will have to wait until the next application period for such a recommendation 
before being able to a pply for an MoT  Import Approval. On this basis, we consider that the 
                                                
523 Indonesia's response to P anel question No. 113.  
524 See Article 22(1) of MoA 58/2015 (Exhibit BRA -1/IDN -24). 
525 See Article 30(3) of MoA 58/2015 (Exhibit BRA -1/IDN -24). 
526 See Article 28 of MoA 58/2015 (Exhibit BRA -1/IDN -24). 
527 See Article 10(2)(e) of MoT 05/2016 (Exhibit BRA -3/IDN -39). 
528 See Article 11(3) of MoT 05/2016 (Exhibit BRA -3/IDN -39). 
529 See Article 30(1) of MoA 58/2015 (Exhibit BRA -1/IDN -24). 
530 See Article 12(1) of MoT 05/2016 (Exhibit BRA -3/IDN -39). 
531 Article 19 of MoT 05/2016 (Exhibit BRA -3/IDN -39). 
532 See section 7.2.4 above.  WT/DS484/R  
 
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  application windows for MoA  Import Recommendations and MoT  Import Approvals, as enacted 
through MoA 58/2015 and MoT 05/2016 , remain in essence the same as those identified in Brazil's 
panel request.  
7.369.   The validity period for an MoA Import Recommendation, changed from the time remaining 
between its issuance and the 31st of December of that year (as enacted in Article 31(1) of 
MoA 139/2014), to three four -month periods. Thus, despite that diff erence  the validity period 
remains in place . In addition, the validity period of the MoT  Import Approval corresponds to that of 
the MoA Import Recommendation. In our view, the fact that MoT Import Approvals are valid for an 
additional month, under MoT 05/2 016, does not affect the fact that their term of validity is still 
limited. On this basis, we consider that the validity periods for MoA Import Recommendations and 
MoT Import Approvals, as enacted through MoA 58/2015 and MoT 05/2016 , remain in essence the 
same as those identified in Brazil's panel request.  
7.370.   On the basis of the foregoing we find that the application windows and the validity periods, 
as enacted through MoA 58/2015 and MoT 05/2016 , fall within our terms of reference , and we 
thus have jurisdicti on to rule on their WTO consistency .  
7.6.5.2.1.2   Whether the application windows and the validity periods are inconsistent 
with Article  XI:1 of the GATT 1994  
7.371.   Brazil argues that the application windows and the validity periods limit trade because, 
through their combin ed operation, they prevent exports  from entering Indonesia's market during 
the beginning of each validity period.533 According to Indonesia, the application windows and 
validity periods set out in MoA 58/2015 and MoT 05/2016 do not have any trade -limiting ef fects.534 
Indonesia considers that under this regime, importers would be able to import their products 
throughout the year.535 
7.372.   As indicated above, we will examine the application windows and the validity periods as a 
single measure. We set out Article XI:1 of the GATT 1994 above.536 As we have done for the 
positive list requirement and the intended use requirement, we structure our analysis under 
Article  XI:1 around the following two questions: (1) whether the measures at issue constitute a 
prohibition or restric tion on the importation of chicken meat and chicken products; and 
(2) whether they are made effective through quotas, import or export licences or other measures.  
7.373.   Regarding the second question, we note that the parties have not explicitly debated the 
specific nature of the application windows and the validity periods. To the extent that these are 
elements of Indonesia's import licensing regime, we consider them to constitute an import licence 
for the purposes of Article XI:1 of the GATT 1994.  
7.374.   As regards the  first question, we recall that the Appellate Body identified the meaning of 
the term "restriction" as "[a] thing which restricts someone or something, a limitation on action, a 
limiting condition or regulation" and concluded from it, that it is "generally  … something that has a 
limiting effect" .537 Furthermore, in a contextual reading of the title of Article XI538 the Appellate 
Body concluded that the limiting effect must be "on the quantity or amount of a product being 
imported".539 
                                                
533 Brazil's first written submission, para s. 206 and 208-209; opening statement at the first meeting of 
the Panel, para. 91; second written submission, para. 155; and response to Panel question No. 111.  
534 Indonesia's second w ritten submission, paras. 14 and 127. As noted above, Indonesia considers that 
Article XI:1 does not apply in this dispute. As we discussed in section 7.2.3.2  above, we do not agree with 
Indonesia that Article 4.2 of the Agreem ent on Agriculture  applies to the exclusion of Article XI:1 of the GATT 
1994.  
535 Indonesia's second written submission, paras. 17 -18. 
536 See section 7.4.2.2  above.  
537 Appellate Body Reports, China – Raw Materials , para. 319; and Argentina – Import Measures , para. 
5.217.  
538 The title of Article XI is "General Elimination of Quantitative Restrictions".  
539 Appellate Body Report s, China – Raw Material s, para. 320 . See also Appellate Body Reports, 
Argentina – Import Measures , para. 5.217.    WT/DS484/R  
 
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  7.375.   Brazil submits that the expo rtation process of the products at issue takes its exporters, on 
average, up to 100 days.540 Because the validity periods are limited to 120 days, Brazil considers 
that the export transactions could only effectively happen during 20 days of each validity per iod.541 
Indonesia submits that because they are able to re -apply for a new MoA Import Recommendation 
a month before the expiry of the validity period, importers can import their products into Indonesia 
throughout the year without interruption.542  
7.376.   According to  the evidence submitted by Brazil, the whole export process would take an 
exporter on average 100 days. This is the result of adding the time required to take the following 
three steps to export. The first is the sales of the products (e.g. finding a buyer , etc.), which, 
according to Brazil, lasts 30 days on average. The second is production, which, Brazil asserts, lasts 
from 20 to 30 days. The final step is the loading, documentation, shipping and transit, which, as 
Brazil submits, lasts from 35 to 45 days .543 We note that Indonesia has not rebutted the accuracy 
of this time -frame, although indicating that Brazil has not provided evidence for the existence of 
any type of "dead zone".544 
7.377.   We do not consider the first two steps described by Brazil (e.g. sales of p roducts and 
production), to be relevant for our analysis. The sales and production steps, correspond to time 
that is under the control of the exporter. We do not see how such time could depend on the 
specific time -frames set out by the application windows or the validity periods. We thus consider 
that the only relevant time -frame, for the purposes of our analysis, is the maximum 45 days that 
correspond to the last step, namely, documentation and shipment.  
7.378.   To understand better the design, architecture, and revealing structure of this measure and 
its expected operation, we examine a hypothetical scenario. We assume that an importer has 
obtained an MoA Import Recommendation and an MoT Import Approval for the validity period of 
January to April 2016 and that it  takes, on average, six weeks (45 days) for the importer to load, 
prepare the relevant documentation, and ship the products from Brazil to Indonesia. This means 
that at the latest, the importer must make its last shipment by mid -March for the products to 
arrive in time to be admitted to Indonesia, before the validity of the MoA Import Recommendation 
and the MoT Import Approval expire. We also assume that the importer applied in April, at the 
earliest opportunity, for an MoA Import Recommendation and an MoT  Import Approval for the next 
validity period of May to August 2016. We assume that the MoA  Import Approval would be issued 
in April, one week after the importer made the on -line application.545 Therefore, the earliest the 
importer would be able to ship anima ls and animal products under the validity period of May to 
August, would be the second week of April after reapplying and obtaining the new MoA Import 
Recommendation and the MoT Import Approval. If the importer is able to ship the products 
immediately afte r obtaining the MoT Import Approval, the products would arrive at the end of May. 
Therefore, in this scenario, there would be no imports between the end of April and the end of 
May. Hence, the importer would have to stop shipments in mid -March and could on ly resume after 
obtaining a new MoT Import Approval in mid -April. These shipments would only arrive in Indonesia 
at the end of May, following the time for loading, documentation, and shipment indicated above.  
7.379.   The hypothetical scenario, which was modelled t o closely follow how the different elements 
or requirements encompassed in these measures operate, shows that under Indonesia's import 
licensing regime, between the time of application and the end of the licensing period there is 
always a period of time du ring which no chicken is actually imported into Indonesia. It is worth 
noting that this period of no imports can be attributed to three separate causes: (i) the timing of 
the application windows, which is very close to the expiration of the previous import  documents, 
                                                
540 See Letter of ABPA informing the average deadlines necessary to conclude an export process of 
chicken meat and chicken products from Brazil to Indonesia (ABPA letter)  (Exhibit BRA -44). 
541 Brazil's first written submission, para. 206. See also  Brazil's first written submission, paras. 208 -209; 
opening statement at the first meeting of the Panel, para. 91; second written submission, para. 155; and 
response to Panel question No. 111.  
542 Indonesia's second written submission, paras. 17 -18. 
543 See ABPA Letter (Exhibit BRA -44). See also MSC Routefinder and Maersk Line Schedules informing 
that there is no direct vessel's line from Brazil to Indonesia (Exhibit BRA -45). 
544 Indonesia's second written submission, para. 13.  
545 We acknowledge Indonesia's indication that according to the relevant provisions of MoA 58/2015 , the 
issuance of an MoA Import Recommendation can take up to five working days. Similarly, according to the 
relevant provisions of MoT 05/2016 , the issuance of an MoT Import Approval can take up to two wo rking days. 
See Indonesia's second written submission, para. 14.  WT/DS484/R  
 
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  (ii) the requirements that preclude importers from shipping products before having obtained the 
new MoT Import Approval, that would otherwise allow importers to save time by shipping their 
products in advance while waiting for the new MoT  Impor t Approval, and (iii) the shipping time 
from the country of origin, which creates a gap between the time where the new MoT Import 
Approval is received and the time when the goods subject to such MoT Import Approval arrive in 
Indonesia. Of these three cause s, the first two are attributable to Indonesia's regulations while the 
third one is due to geographical factors  when shipping products from Brazil to Indonesia. However, 
the manner in which the application windows and the validity periods are designed coul d have 
taken this fact into account to avoid trade -restrictiveness. The breadth of the trade restrictiveness 
of these measures is represented in the following figure : 
Figure 3 "Dead zone"  scenario on the importation of chicken  
 
 
7.380.   We recall that one of the features of the measures at issue is that the number of the MoT 
Import Approval must be indicated on the veterinary health certificate.546 Indonesia argues that 
any delay caused by the fact that the veterinary certificate has to incl ude the number of the MoT 
Import Approval would be a consequence of the administrative process for the issuance of the 
certificate by the authorities in the country of origin.547  
7.381.   In our view, this argument is misplaced. The moment when  exporters may request  the 
relevant veterinary health certificate is limited because of Indonesia's import licensing regime. In 
particular, due to the requirement set forth in Article 19 of MoT 05/2016 that the veterinary health 
certificate is issued after the issuance of the M oT Import Approval. Thus, absent this requirement, 
exporters could have saved time by requesting the issuance of the veterinary health certificate in 
parallel to the renewal of the MoT Import Approval. On this basis, we consider that Indonesia's 
argument d oes not alter our conclusion resulting from the preceding analysis.  
7.382.   Brazil has demonstrated that the application windows and validity periods,  considered as a 
single measure,  by virtue of its design, constitutes a restriction having a limiting effect on th e 
                                                
546 Article 19 of MoT 05/2016 (Exhibit BRA -3/IDN -39). 
547 Indonesia's second written submission, paras. 15 -16. WT/DS484/R  
 
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  competitive opportunities of importers. In practice, importers will not be able to import products 
during at least four weeks of each import period, thus restricting the market access of the 
products at issue into Indonesia. We thus consider that these m easures constitute an import 
restriction within the meaning of Article  XI:1 of the GATT 1994.  
7.383.   We therefore find that the  single measure consist ing of the  application windows and the 
validity periods, as enacted through MoA 58/2015 and MoT 05/2016, is inconsistent with 
Article  XI:1 of the GATT 1994.  
7.6.5.2.2   Fixed licence terms  
7.6.5.2.2.1   Measure at issue and Panel's jurisdiction  
7.384.   In this section we consider the fixed licence terms as enacted through MoA 58/2015 and 
MoT 05/2016.  
7.385.   As shown in Table 6 above, the relevant  provisions  in MoA  58/2015 and MoT 05/2016  
through which the fixed licence terms are enacted,  differ slightly from those in MoA 139/2014 and 
MoT 46/2013 . As discussed above, in line with the Appellate Body's jurisprudence in Chile – Price 
Band System , we consider that our terms of reference cover subsequent amendments to the 
measure at issue so long as that measure remains in essence the same.548  
7.386.   There are only marginal differences in the manner in which the fixed licence terms are set 
out in  the first two sets of legal instruments. The only change in the MoA Import Recommendation 
is that the sanction no longer includes proposing  to the Minister  to withdraw the company status 
as animal product registered importer. In our view, this does not ch ange, in any way the essence 
of the terms of this licensing requirement as being fixed.549 The same holds true for the MoT 
Import Approval , where the wording used in the relevant provisions of both MoT 46/2013 and MoT 
05/2016 is almost identical.550 
7.387.   On the bas is of the foregoing we find that the fixed licence terms, as enacted through the 
second set of legal instruments, fall within our terms of reference , and that we thus have 
jurisdiction to rule on their WTO consistency .  
7.6.5.2.2.2   Whether the fixed licence terms  are inconsistent with Article XI:1 of the 
GATT 1994  
7.388.   Brazil argues that the fixed licence terms limit trade because by prohibiting adjustments to 
the relevant licensing documents, they impede importers from having the necessary flexibility to 
respond to changes  in market conditions.551 Indonesia rejects Brazil's arguments and considers 
that Brazil has failed to demonstrate that this measure has any limiting effect on imports.552 
7.389.   We set out Article XI:1 of the GATT 1994 above.553 As we have done for the previous 
measur es we have examined under this provision, we structure our Article XI:1 analysis around 
the following two questions: (1) whether the measures at issue constitute a prohibition or 
restriction on the importation of chicken meat and chicken products , and (2) whether it is made 
effective through quotas, import or export licences or other measures . 
                                                
548 See section 7.2.4 above.  
549 Article 33(a) of MoA 139/2 014 establishes that importers "are prohibited to request the change of 
country of origin, point of entry, type/category of carcass, meat, and/or its processed for the issued 
recommendation". Moreover, Article 39 provides that a violation to the provisions  of Article 33 shall be 
sanctioned by "withdrawing of the recommendation, not given next recommendation, and shall be proposed to 
the Minister of Trade for a withdrawal of their Import Permit (PI) and company status as an Animal Product 
Registered Importer  (IT)". 
550 Article 30(2) of MoT 46/2013 provides that animals and animal products imported with "quantity, 
type, business unit, and/or country of origin that is not in accordance with the Import Approval" shall be re -
exported.  
551 Brazil's first written submi ssion, paras. 210 -211; and second written submission, para. 160.  
552 Indonesia's first written submission, para. 294.  
553 See section 7.4.2.2  above.  WT/DS484/R  
 
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  7.390.   Regarding the second  question, we note that the parties have not explicitly debated the 
specific nature of the fixed licence terms. In our view, the fixed licence ter ms are elements of 
Indonesia's import licensing regime, as they condition the manner in which the import licensing 
documents will be enforced. On this basis, we consider that the fixed licence terms constitute an 
import licence for the purposes of Article XI:1 of the GATT 1994.  
7.391.   As regards the first question, we recall that the Appellate Body identified the meaning of 
the term "restriction" as "[a] thing which restricts someone or something, a limitation on action, a 
limiting condition or regulation" and con cluded from it, that it is "generally … something that has a 
limiting effect" .554 
7.392.   Indonesia raises what we consider a preliminary defence. According to Indonesia, the 
terms of the import licensing requirements are at the complete discretion of the importers,  and 
thus, are not measures maintained by Indonesia.555 Brazil considers this defence to be misplaced 
as the fixed licence terms are a measure instituted and maintained by Indonesia.556 We agree with 
Indonesia that it is the importer who initially defines the terms of the licensing documents, when 
submitting the relevant applications. However, this is in no way dispositive of the consequences 
arising from a subsequent amendment to those terms after the relevant licensing document has 
been issued. It is Articles  32(a) of MoA 58/2015 and 27(2) of MoT 05/2016 that prohibit such 
amendments. Moreover, the sanctions imposed in case of any change to the fixed licence terms 
results from the text of Articles  38 and 27(2) of MoA 58/2015 and MoT 05/2016, respectively. All 
these are part of legal instruments adopted by the government of Indonesia, which we thus 
consider to be attributable to Indonesia.557 
7.393.   Brazil argues that foreclosing the possibility to amend the terms of the MoA Import 
Recommendation and the MoT Import Appro val forces importers to have all the details of 
transactions in advance of importation. Brazil considers this to run counter to market practices.558 
Brazil further submits that by not being entitled to request adjustments in the licensing terms, 
importers ar e unable to respond to new business opportunities during the validity period.559 Brazil 
thus considers that the fixed licence terms: (a) unduly restrict market access for Brazilian 
products; (b)  create uncertainty as to an applicant's ability to import; and (c) impose a significant 
burden on importers unrelated to their normal importing activity.560 Brazil further notes that it 
does not question a Member's right to require that the country of origin and the product be 
identified in an import licence whenever th e measure is justified in light of the legitimate trade 
restrictions the licensing regime is supposed to administer.561  
7.394.   In our view, the design and structure of the fixed licence terms is such that if an importer 
modifies the relevant terms of the import li censing documents it will be subject to severe sanctions 
(e.g. revocation of the MoA Import Recommendation or re -export ation of the relevant 
consignment).  
7.395.   We understand Brazil's arguments to imply that only those requirements that stem from 
illegitimate t rade restrictions have the trade -restrictive effect that Brazil is complaining about. We 
note that there is certain information that appears in the import licensing documents, which is 
objectively verified in the process of the issuance of an MoA Import Re commendation. In 
particular, the relevant MoA regulations provide for an approval process of a country of origin and 
of business units (see paragraph 7.97 above ). Moreover, such verification, which entails the 
assessment of the  animal disease status of a country, may impact the products that can be 
authorized to enter. If an importer desires to modify any of these terms, it would need to apply for 
a new MoA Import Recommendation, to the extent that Indonesian authorities would n eed to 
                                                
554 Appellate Body Reports, China – Raw Materials , para. 319; and Argentina – Import  Measures , para. 
5.217.  
555 Indonesia's first written submission, para. 262.  
556 Brazil's second written submission, paras. 159 -160. 
557 See Appellate Body Report, US – Corrosion -Resistant Steel Sunset Review , para. 81; Australia – 
Apples , para. 171; US – Shrimp , para. 173; and Panel Reports, Canada – Renewable Energy / Feed -In Tariff 
Program , fn 37; and Australia – Salmon (Article 21.5 – Canada) , para. 7.12 and fn 146.  
558 Brazil's first written submission, para. 210.  
559 Brazil's first written submission, para. 211 . 
560 Brazil's first written submission, para. 212. See also Brazil's opening statement at the first meeting 
of the Panel, para. 93; and response to Panel question No. 23.  
561 Brazil's response to Panel question No. 23.  WT/DS484/R  
 
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  verify such information in respect of the new country of origin or the new business units. Against 
this back -drop, we fail to see how limiting the possibility to amend this information could create 
any trade -restrictiveness.  
7.396.   We do not consider this  to be the case with respect to the port of entry and the quantity of 
the products. We agree with Brazil that limiting these requirements impedes importers from 
making adjustments to the licensing documents that arise in the normal course of business. Braz il 
refers to Norway's third -party statement, indicating that "the fact that importers are prevented 
from responding to changes in market conditions has a limiting effect on trade" .562 We agree with 
Brazil's assumption that there may be circumstances arising in the normal course of business that 
may require an importer to modify the ports of entry or the quantity it initially indicated in the 
application for the licensing documents. The trade -restrictive effect of this measure arises from its 
design and struct ure. Importers are simply not allowed to amend in any way the information on 
the ports of entry. Furthermore, importers are also not allowed to increase the quantity of the 
products for a given validity period.563 Moreover, importers who infringe this prohib ition are 
subject to sanctions that entail  grave consequence s for business opportunities, such as the 
revocation of the relevant licensing documents or the re -export ation of the products. In our view, 
these sanctions result in a limitation on imports of pr oducts that can either not be imported 
through the port of entry initially designated or exceed the quantity indicated in the application 
form.564 We thus consider both these aspects of the fixed licence terms, as enforced through the 
applicable sanctions, t o constitute conditions limiting the importation of the products at issue.  
7.397.   We note Indonesia's argument, that importers are free to alter the terms of importation 
from one licence application to the next.565 In our view, this argument does not alter our prec eding 
analysis. Although an importer could modify the conditions of importation from one period to the 
next, it is still nonetheless limited by the licence terms for each period. As described above, such 
limitation results in importers not being able to am end the ports of entry or the quantity of 
imported products. As we have noted, doing so entails grave sanctions.  
7.398.   In addition, Indonesia argues that some of the terms of importation are not as stringent as 
Brazil portrays them. For instance, an importer ca n indicate several ports of entry and not be 
sanctioned if it only imports through one of them.566 Despite Indonesia's explanation, we consider 
that the requirement to list upfront  the ports of entry through which imported products could enter 
has a trade -restrictive effect. According to Indonesia, the only situation in which an importer would 
not be sanctioned if changing the port of entry is, if it listed several or all possible ports in its 
application. It seems unreasonable to impose such burden on the ap plicant. Moreover, if all 
importers were to do this, this requirement would not serve Indonesia to gather the information on 
the specific ports through which particular consignments would enter the country . 
7.399.   Similarly, Indonesia argues that an importer may indicate that it will import a certain 
quantity and change the desired amount from one period to the next.567 Although this might be 
true, it does not change the fact that imports beyond the stipulated quantity will entail severe 
sanctions. In addition, if a ll importers were to indicate extremely high numbers of desired imports, 
this requirement  would  not serve Indonesia to gather precise information of quantity of imports 
that would occur in a specific day . 
7.400.   On the basis of the foregoing, we find that the fix ed licence terms, in respect of the 
limitation on the port s of entry and the quantity of imported products, are inconsistent with 
Article  XI:1 of the GATT 1994.  
                                                
562 Brazil's second written submission, pa ra. 159.  
563 Indonesia's response to Panel question No. 113.  
564 See United States' third -party submission, para. 46 (referring to the limitation on the quantity of 
products that may be imported in a given validity period).  
565 Indonesia's first written submissi on, para. 263.  
566 Indonesia's first written submission, para. 263.  
567 Indonesia's second written submission, para. 18; and response to Panel question No. 113.  WT/DS484/R  
 
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  7.6.5.2.3   Whether the application windows, the validity periods, and the fixed licence 
terms are justifie d under Article XX(d) of the GATT 1994  
7.6.5.2.3.1   Introduction  
7.401.   We have found that the application windows, the validity periods and the fixed licence 
terms, as enacted through MoA 58/2015 and MoT 05/2016 , are inconsistent with Article XI:1 of 
the GATT  1994.568  
7.402.   We reca ll that Indonesia set out its defence under Article XX of the GATT 1994 for the 
three measures referred to above. On this basis, and in order to provide the clearest and most 
expedient analysis, we will examine Indonesia's defence under Article XX for the application 
windows, the validity periods and the fixed licence terms jointly.  
7.403.   Indonesia raises its defence under Article XX(d) of the GATT 1994, essentially arguing that 
these measures allow the allocation of human resources to ensure compliance with Indo nesia's 
laws and regulations addressing halal, public health, consumer protection, and customs 
enforcement relating to halal and safety.569 Brazil rejects the defence on procedural and 
substantive grounds. Procedurally, Brazil argues that Indonesia developed , too late in the 
proceedings, its arguments on how the challenged measures secure compliance with the relevant 
laws and regulations.570 On substance, Brazil submits that Indonesia has not met its evidentiary 
burden.571 
7.404.   Before pursuing our substantive examinat ion of Indonesia's defence under Article XX, we 
will address Brazil's procedural objections.  
7.6.5.2.3.2   Admissibility of certain aspects of Indonesia's defence under Article XX(d)  
7.405.   In commenting on Indonesia's responses to the Panel's questions after the second 
meetin g, Brazil challenged the Panel's ability to assess Indonesia's arguments on how the 
application windows and the validity periods and the fixed licence terms could be justified under 
Article  XX(d).572 In Brazil's view, Indonesia developed certain arguments to o late in the 
proceedings.573  
7.406.   Brazil is particularly concerned with  certain  evidence submitted by Indonesia at this late 
stage in support of its defence under Article XX(d), namely, that certain importers present a 
monthly arrival plan.574 Brazil argues that according to paragraph 8 of the Panel's Working 
Procedures, Indonesia was expected to submit all relevant evidence during the first meeting. 
Moreover, these arguments were not developed as part of a rebuttal to new arguments brought by 
Brazil and the Panel  granted no authorization to submit them. Brazil signals that Indonesia did not 
provide any good cause that would justify this late submission.575 On this basis Brazil claims that 
Indonesia's arguments on the relationship between the challenged measures and Article XX(d) of 
the GATT, as well as the arrival plan, are not properly before the Panel .576 
                                                
568 See paras . 7.383  (regarding the application windows and the validity  periods) and 7.400  (regarding 
the fixed licence terms) above.  
569 Indonesia's first written submission, para. 297; opening statement at the first meeting of  the Panel, 
para. 97; and response s to Panel question No s. 24 and 113.  
570 Brazil's comments on Indonesia's response to Panel question No. 1 13, paras. 37 -41. We note that in 
paras. 36 -41 of its comments to Indonesia's responses to question of the Panel, Brazil referred to question No. 
133, however we understand Brazil's comments  to be referring to Indonesia's response to Panel question No. 
113. On this basis, we refer to Brazil's comments on Indonesia's response to Panel question No. 113.  
571 Brazil's second written submission, paras. 157 and 161 -163; opening statement at the secon d 
meeting of  the Panel, paras. 36 -38; and comments on Indonesia's response to Panel question No. 113, 
para. 52. 
572 Brazil's comments on Indonesia's response to Panel question No. 1 13, paras. 37 -41. 
573 Brazil's comments on Indonesia's response to Panel questi on No. 1 13, para. 37.  
574 Brazil's comments on Indonesia's response to Panel question No. 1 13, para. 38.  
575 Brazil's comments on Indonesia's response to Panel question No. 1 13, paras. 39 -40. 
576 Brazil's comments on Indonesia's response to Panel question No. 1 13, para. 41.  WT/DS484/R  
 
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  7.407.   We disagree with Brazil that Indonesia "waited until the very last opportunity to develop" 
its defence under Article XX(d).577 It is true that Indonesia refined its a rguments, however it raised 
its defence under Article XX(d) from the first written submission itself.578 Moreover, Indonesia 
argues that these measures contribute to the claimed objective by allowing " Indonesia to manage 
better its resources by providing an estimate on the volume of imports that would enter Indonesia 
through a particular port at a given time" .579 We consider that it would be preferable if the parties 
raise their arguments and defences at the earliest opportunity. However, we are cognizant that 
argumentation unfolds in the course of the proceedings, including through responses to questions 
from the Panel. The latter, in fact, is the case here.580 We note that Indonesia developed these 
arguments and submitted a new exhibit in response to a question from the Panel, which, in turn, 
was triggered by arguments developed by both parties in the course of the second meeting on 
Indonesia's defence under Article XX(d). Lastly, we observe that Brazil has had an opportunity to 
respond to Indonesia's arguments.581  
7.408.   On the basis of the foregoing, we consider that Indonesia's defence under  the general 
exceptions provided in  Article  XX(d) and references to the monthly arrival plan are properly before 
us. We therefore turn to the substantive assessment of Indonesia's d efence under Article XX(d).  
7.6.5.2.3.3   Whether the application windows, the validity periods and the fixed licence 
terms are justified  under Article XX(d)  
7.409.   We have set out Article XX in section  7.4.2.3  above. As we noted there, the analys is under 
Article XX requires us to proceed in two steps . We first need to assess whether the measure is 
provisionally justified under the specific sub -paragraphs identified by the respondent – here 
subparagraph (d). If that is the case, we go on to examine  whether the measure satisfies the 
requirements of the chapeau of Article XX. Furthermore, we recall that the burden of proof in 
respect of an exception is on the responding party.582 
Article XX(d)  
7.410.   As already seen in section 7.4.2.3 above, Article XX(d) covers measures "necessary to 
secure compliance with laws or regulations which are not inconsistent with the provisions of this 
Agreement […]" . 
7.411.   In paragraph  7.123  above, we noted that, in line with rele vant guidance provided by the 
Appellate Body583, our assessment under Article XX(d) requires us to address the following two 
questions: (1) whether the application windows, the validity periods and the fixed licence terms 
are designed to secure compliance wi th laws or regulations that are not themselves inconsistent 
with a provision of the GATT 1994, and (2) whether these are measures necessary to secure 
compliance with such laws and regulations. We address these questions in turn.  
Designed to s ecure complian ce with laws or regulations  
7.412.   Indonesia's defence has evolved throughout these proceedings. At the outset, Indonesia 
argued that these measures, as part of Indonesia's import licensing regime, are designed to secure 
compliance with Indonesia's laws and regul ations addressing halal, public health, as well as 
                                                
577 Brazil's comments on Indonesia's response to Panel question No. 1 13, para. 37.  
578 Indonesia's first written submission, paras. 296 -301. 
579 Indonesia's response to Panel question No s. 24 and 113.  
580 We recall that it is the Panel's prerogative t o ask questions and scrutinize the parties' argumentation . 
See Appellate Body Reports, US – Zeroing (EC) , para. 260; and EC – Fasteners (China) , para. 566.  
581 In US – Gambling , the Appellate Body addressed a similar question to the one raised by Brazil. In 
that dispute Antigua argued that the panel had erred in considering the United States' defence under Article 
XIV of the GATS because it was raised too late in the proceedings (i.e. in the second written submission to the 
Panel). The Appellate  Body consider ed that in the circumstances of that dispute, where Antigua had an 
opportunity to comment on the United States' defence, the panel had not deprived Antigua's full and fair 
opportunity to respond to the defence. (Appellate Body Report, US – Gambling , para. 276) Similarly , we 
consider that if a complaining party has had the opportunity to comment on the arguments developed by the 
respondent, a panel should consider those arguments in its assessment of the respondent's defence.  
582 See para.  7.122  above.  
583 Appellate Body Report, Korea – Various Measures on Beef , para. 157. See also Appellate Body 
Reports, Argentina – Financial Services , para. 6.202; and Colombia – Textiles, paras. 5.123 and 5.124.  WT/DS484/R  
 
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  deceptive practices (consumer protection) and customs enforcement relating to halal and safety. 
Indonesia refers to the following provisions: Articles 58(1), 58(4), and 59(1) of Law No. 18/2009 
(Animal Law ); halal certification as set out in Law 33/2014; and Articles 4,7, 9(1) and 9(3) of 
Law 8/1999 (Consumer Protection Law).584 Indonesia indicates that none of these laws and 
regulations are inconsistent with the provisions of the GATT 1994, and that Brazil h as not provided 
proof otherwise.585  
7.413.   Indonesia further explained that the immediate manner in which these measures secure 
compliance with those laws and regulations is by facilitating the supervision by customs and 
quarantine officials over the importer's co mpliance with the relevant halal, safety, and consumer 
protection requirements at the time of importation.586 Indonesia considers that these measures, 
especially the fixed licence terms, give the government a general indication of where , when, and 
what, will be imported.587 
7.414.   Brazil considers that Indonesia has failed to demonstrate that these measures are 
necessary to secure the immediate objective that Indonesia argues these measures pursue.588 
Brazil further argues that Indonesia's rationale and regulatory behav iour is contradictory, to the 
extent that it says that it requires detailed information of the volume of imports to determine the 
manner in which it will allocate its human resources. However, Brazil also claims that the 
regulations are flexible, which wou ld defeat such a purpose.589 Brazil further submits that there are 
less trade -restrictive alternatives that could achieve Indonesia's claimed objective.590 
7.415.   As noted previously, the Appellate Body has described our task as "an initial examination 
of the relatio nship between the inconsistent measure and the relevant laws or regulations" which 
requires a panel to "scrutinize the design of the measures sought to be justified" .591 The Appellate 
Body further clarified that the standard for ascertaining whether such a r elationship exists is 
whether the assessment of the design of the measure reveals that the measure is not incapable of 
securing compliance with the relevant laws and regulations in Indonesia.592 Finally, we note that 
the Appellate Body has described this tes t as "not… particularly demanding" , in contrast  to the 
requirements of the next step of the analysis, namely the necessity test.593   
7.416.   It is our understanding that Indonesian law does not specifically require the planned 
allocation of human resources in custo ms or quarantine control posts.594 To that extent, we 
understand that Indonesia is not claiming that the challenged measures directly secure compliance 
with the relevant laws and regulations. However, we agree with Indonesia that an appropriate 
management of  human resources at the time of importation is necessary for the proper 
enforcement of customs laws and regulations, particularly the provisions on halal, public health, 
consumer protection and food safety referred to by Indonesia. To that extent, we accep t the 
argument that the challenged measures may indirectly secure compliance with the laws and 
regulations identified by Indonesia.  
                                                
584 Indonesia's first written submission , para. 297; opening statement at the first meeting of  the Panel, 
para. 97; and response to Panel question Nos. 24 and 113.  
585 Indonesia's first written submission, para. 298.  
586 Indonesia's response to Panel question No. 113.  
587 Indonesia's response to Panel  question No. 115.  
588 Brazil's second written submission, paras. 157 and 161 -163; opening statement at the second 
meeting of  the Panel, paras. 36 -38; and comments on Indonesia's response to Panel question No. 113, 
para. 52. 
589 Brazil's comments on Indonesia' s response to Panel question No. 1 13, paras. 42 -45. 
590 Brazil's comments on Indonesia's response to Panel question No. 1 13, paras. 46 -52. 
591 Appellate Body Report, Argentina – Financial Services , para. 6.203. See also para. 6.113 where the 
Appellate Body sta tes that "[t]he GATS sets out general exceptions and security exceptions from obligations 
under that Agreement in the same manner as does the GATT 1994" and that "[s]ome of these objectives are 
the same under both provisions, such as protection of public m orals, protection of human, animal or plant life 
or health, and securing compliance with WTO -consistent laws and regulations".  
592 Appellate Body Report, Colombia – Textiles , paras. 5.68 (referring to the test applicable in the 
context of Article XX(a)) and 5.125 -5.128 (indicating the test applicable to Article XX(d)).  
593 Appellate Body Report, Colombia – Textiles , para. 5.70.  
594 In its responses to  the Panel's questions , Indonesia has confirmed that understanding. See 
Indonesia's response to Panel question No.  115. WT/DS484/R  
 
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  7.417.   In further exploring this matter, we have some doubts about these measures being 
designed to secure the objective identified  by Indonesia. As we point out above595, we consider 
there to be a degree of contradiction in Indonesia's arguments. In particular, we do not see how a 
measure that is flexible, in terms of providing only indicative information that can vary greatly 
(e.g. allowing importers to indicat e all the ports of entry and only us e one or  to indicat e the 
maximum amount to be imported for a three -month period), will make any meaningful 
contribution to knowing precisely where, when and how many imports will take place. Mo reover, 
we do not consider that as explained by Indonesia, the existence of a monthly arrival plan 
confirms the contribution of the challenged measures.596 Instead, as we discuss further below, we 
consider it to undermine the need for the fixed licence terms . These considerations call into 
question whether this measure is designed to facilitate the supervision by customs and quarantine 
officials over the importer's compliance with the relevant halal, safety, and consumer protection 
requirements at the time of  importation, and thus to secure compliance with the relevant laws and 
regulations.  
7.418.   At the same time , we see that Indonesia's arguments support the view that the challenged 
measures, by virtue of their design, structure and expected operation, may provide  Indonesian 
authorities with an estimate of (1)  how many imports will occur during each validity period, and 
(2) through which ports in Indonesia those imports will enter. In our view,  however,  such an 
estimate will be too general to provide useful informa tion to facilitate the allocation of customs and 
quarantine officials.  
7.419.   Despite our doubts, in applying the above standard, we acknowledge that the measures at 
issue are "not incapable" of achieving the objective of facilitating the allocation of customs a nd 
quarantine officers to secure compliance with Indonesia's laws and regulations pertaining to halal, 
public health, consumer protection and food safety. As Indonesia argues, the information it collects 
through  the measures is useful in facilitating the a llocation of the relevant officers. On this basis 
we find, that there is a relationship between the application windows, the validity periods and the 
fixed licence terms, and the objective of securing compliance with the relevant laws and 
regulations throu gh the allocation of human resources in charge of supervising compliance with 
such laws and regulations at the time of importation.  
Necess ary to secure compliance with laws and regulations  
7.420.   As seen above, the "necessity" test involves a process of weighing and balancing a series 
of factors, including (1) the importance of the objective, (2) the contribution of the measure to 
that objective, and (3) the trade -restrictiveness of the measure.597 In most cases, (4) a 
comparison between the challenged measure and p ossible less trade -restrictive alternatives should 
then be undertaken. We turn to examine these factors.  
7.421.   In terms of the importance of the objective pursued, we acknowledge the importance of 
complying with Indonesia's laws and regulations pertaining to ha lal, public health, consumer 
protection and food safety.598 Moreover, we recognize the importance of facilitating the allocation 
of human resources for government officials to be able to supervise an importer's compliance with 
Indonesia's halal, safety, and consumer protection requirements at the time of importation.599  
7.422.   We have noted above that we have some doubts on whether these measures are designed 
to achieve the objective claimed by Indonesia. Those same doubts are relevant for our assessment 
of the degre e of contribution of these measures to the objective of facilitating the allocation of 
human resources for government officials to be able to supervise importer's compliance with 
Indonesia's halal, safety, and consumer protection requirements at the time o f importation. In 
particular, we do not consider that the information collected by Indonesian authorities is that 
meaningful, so as to facilitate an appropriate allocation of the customs and quarantine officers in 
                                                
595 See paras. 7.402 and 7.403. In this regard, see also Brazil's comments on Indonesia's response to 
Panel question No. 1 13, paras. 42 -45. 
596 Indonesia's response to Panel question Nos. 113 and 115.  
597 Appellate Body Reports, EC - Seal Products , para. 5 .169. 
598 Indonesia's first written submission, para. 297; opening statement at the first meeting of  the Panel, 
para. 97; and response s to Panel question No s. 24 and 113.  
599 Indonesia's response to Panel question No. 113.  WT/DS484/R  
 
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  charge of supervision. Thus, we do not con sider the degree of contribution of the challenged 
measures significant. We rather consider it to be limited.  
7.423.   As seen above, whether the contribution is substantial/material or not, in turn matters in 
light of  the degree of trade -restrictiveness of the cha llenged measures. We have found that the 
application windows and the validity periods foreclose the possibility of imports occurring during at 
least four weeks of each validity period. Moreover, the fixed licence terms limit an importers' 
ability to amend the port of entry or quantity in the import licensing documents, thus limiting trade 
in respect of situations where such changes are required due to changes in market conditions. 
Thus, these measures constitute limitations on trade. Such limitations are no t of the magnitude of 
an import ban, however they do distort the normal trade flows that would occur in their absence. 
Consideration of these measures as trade -restrictive, notwithstanding their extent, weighs against 
considering them necessary.  
7.424.   Turning to  the issue of a less trade -restrictive alternative, Brazil has submitted two 
alternative measures.600 The first is allocating human resources on the basis of the normal influx of 
imported cargo. Brazil considers that the evidence provided by Indonesia with r espect to the 
reduction in the dwelling time at certain ports demonstrates that most of the imports enter 
Indonesia through one port. This information could be used by Indonesia to decide on the best 
manner of allocating  its human resources.601 Brazil submit s as the second alternative that if the 
Panel were to accept the evidence submitted by Indonesia in respect of the monthly arrival plan, 
then, such a monthly arrival plan alone could provide the accurate information that Indonesia is 
seeking in a much less -trade restrictive manner than the challenged measures.602 
7.425.   We agree with Brazil that the first option provides useful information to Indonesia in 
forecasting the quantity of imports and the ports through which they will enter. However, we do 
not consider thi s information to be entirely accurate. We thus do not consider that this measure, in 
itself, can achieve the objective indicated by Indonesia. This however, does not prevent Indonesia 
from using this methodology in combination with other measures.  
7.426.   We agre e with Brazil that the monthly arrival plan is a less -trade restrictive alternative that 
achieves Indonesia's desired objective. It is a measure that could be required from importers, 
which would provide Indonesia with the precise information necessary to allocate customs and 
veterinary officials to supervise compliance with the relevant laws and regulations at importation. 
This alternative would more accurately reflect the details of importation, while allowing importers 
to amend, as necessary, the quantit y and the ports of entry initially indicated in the application for 
the relevant licensing requirements. To that extent, this measure is an available alternative that 
has a much less -trade restrictive effect.  
7.427.   As indicated above, the forecast of the amount  of imports and ports of entry could be 
combined with the monthly import plan to provide Indonesian authorities the necessary 
information to facilitate the allocation of human resources for government officials to be able to 
supervise an importer's complia nce with Indonesia's halal, safety, and consumer protection 
requirements at the time of importation. These two alternative measures could work in a way that 
the forecast provides Indonesia with estimates that are later confirmed through the monthly 
import plans, providing Indonesian authorities with the information they require in a much less -
trade restrictive manner than the challenged measures.  
7.428.   In weighing and balancing all factors together we consider that Indonesia has failed to 
demonstrate that the me asures make a significant contribution to the immediate objective that it 
is pursuing. Moreover, Brazil has successfully submitted an alternative measure available to 
Indonesia that would meet Indonesia's objective and have a less -trade restrictive effect.  On this 
basis, we reach the conclusion that the application windows, the validity periods and the fixed 
licence terms are not necessary to facilitate the allocation of human resources for government 
officials to be able to supervise importer's compliance with Indonesia's halal, safety, and consumer 
protection requirements at the time of importation. We therefore find that the application windows, 
                                                
600 Brazil's second written submission,  para. 158; and comments to Indonesia's response to Panel 
question No. 113.  
601 Brazil's comments on Indonesia's response to Panel question No. 1 13, paras. 47 -51. 
602 Brazil's comments on Indonesia's response to Panel question No. 1 13, para. 46.  WT/DS484/R  
 
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  the validity periods and the fixed licence terms, as enacted through MoA 58/2015 and 
MoT 05/2016, are not provi sionally justified under Article XX(d).  
7.429.   Given the absence of a (provisional) justification under subparagraph (d), we see no need 
to proceed to an analysis under the chapeau of Article XX.  
7.430.   In conclusion, we find that the limited application windows, the v alidity periods, and the 
fixed licence terms are inconsistent with Article XI of the GATT 1994 and are not justified under 
Article XX(d) of the GATT 1994.  
7.6.5.2.4   Whether the application windows, the validity periods, and the fixed licence 
terms are inconsistent w ith Article 4.2 of the Agreement on Agriculture  and Article 3.2 of 
the Import Licensing Agreement  
7.431.   We note that the parties agree that the application windows, the validity periods, and the 
fixed licence terms are all import licensing procedures within the meaning of Article 1.1 of the 
Import Licensing Agreement.603 We agree with the parties' view, because all these elements of 
Indonesia's import licensing regime fall under  the definition of Article 1.1, as they are part of 
Indonesia's administrative procedure s used for the operation of Indonesia's import licensing 
regime.  
7.432.   In paragraph 7.159  above we have discussed the legal test applicable to the exercise of 
judicial economy.  
7.433.   In this regard, h aving found a violation of Article XI of the GATT 1994 in respect of these 
elements of Indonesia's import licensing regime, we consider that it is not necessary to address 
Brazil's claim under Article 4.2 of the Agreement on Agriculture  or Article 3.2 of the Import 
Licensing Agreement to secur e a positive solution to this dispute.  
7.6.5.3   Analysis of the relevant provisions of  MoA 34/2016  and MoT 59/2016  
7.6.5.3.1   Introduction  
7.434.   Our findings above apply to the application windows, the validity periods, and the fixed 
licence terms as enacted through MoA  58/2015  and MoT 05/2016 . As noted in the beginning of 
this section, in the course of the proceedings, these regulations were revoked and replaced by 
MoA 34/2016  and MoT 59/2016 .  
7.435.   With this change, the parties' arguments have evolved in respect of the application 
windows and the validity periods. Indonesia submits that the application windows no longer exist 
and therefore that  the measure has expired.604 Brazil contests expiry.605  
7.6.5.3.2   Whether the application windows and the validity periods , as a single 
measure,  has expired  
7.436.   As discussed in section 7.2.4 above, we agree with Indonesia that, having made findings 
on the application windows and the validity periods, the expiry of the measure at issue may have a 
bearing on whether we can make a recomm endation . We consider that a measure has expired if it 
has ceased to exist. We thus need to examine whether the application and validity periods, as a 
single measure, have ceased to exist. We note that Indonesia as the party that asserts expiry, 
bears the burden of proving this.  
7.437.   It is uncontested between the parties that the application windows as enacted through 
MoA 58/2016 have been revoked and eliminated through Article 21 of MoA 34/2016  (see Table 5 
                                                
603 Brazil's fir st written submission, paras. 245 -247; response to Panel question No. 12(a); second 
written submission, para. 151; and Indonesia's first written submission, paras. 79 and 287. We note that in 
Indonesia's view, Brazil did not raise claims against the fixed licence terms under Article 3.2 of the Import 
Licensing Agreement.  
604 Indonesia's response to Panel question No. 24; second written submission, paras. 19 -22 and 129; 
response to Panel question No. 113; and comments on Brazil's response to Panel question No.  103, para. 80.  
605 Brazil's response to Panel question No. 103.  WT/DS484/R  
 
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  above) . We understand Brazil  to contest expiry. Brazil argue s that the  single  measure persists 
through the new condition that importers who have received an MoA  Import Recommendation 
must apply for the respective MoT Import Approval within the following three months (Article 
27(1) of  MoA 34/2016  – see Table 5 above ). Brazil argues that this means that an application for 
an MoT Import Approval cannot be submitted at any time.606  
7.438.   Moreover, Brazil argues that extending the validity period of the MoA  Import 
Recomm endation from four to six months does not eliminate the trade -restrictiveness of the 
measure.607 Indonesia contests Brazil's view. Indonesia considers that by eliminating the 
application windows, the six -month validity periods allow importers to undertake im ports 
throughout the year without interruption.608 Indonesia further submits that Brazil has failed to 
demonstrate that there are any "dead zones" arising from the new validity periods.609 
7.439.   As we have explained above, the trade restrictiveness that we found in respect of the 
application windows and the validity periods as enacted through MoA 58/2015  and MoT  05/2016  
resulted from the combined operation of these measures , which, as we found above, creates 
certain periods in a year during which no imports can occur . As uncontested by the parties, 
Article  21 of MoA 34/2016 eliminates  any limitation on  the application windows. In our view, the 
removal of the application period substantially alters the combined operation of  the application 
windows and validity periods,  as examined above. This alteration goes to the source of the trade -
restrictiveness arising from th at combined operation  of the application windows and the validity 
periods . There no longer is  a limitation on when an importer can apply for an MoA  Import 
Recommendation . In our view, this means that an importer would now be able to apply for an MoA 
Import Recommendation at any time during the year, and if it so wishes, it can request as many 
MoA Import Recommendations as would be necessary to conclude the rel evant business 
transactions throughout the year.  We further note that Brazil has not challenged this.610  
7.440.    Brazil's view is that the measure has not expired because of the new deadline to apply for 
an MoT Import Approval. We agree on that Article 27(1) intro duces a deadline on when an 
importer who has received an MoA  Import Recommendation must apply for an MoT Import 
Approval . However,  as we noted above, importers are free to apply for the import licensing 
documents at any time of the year. This contrasts wit h the limited application windows as enacted 
through MoA 58/2015  which  only allowed importers to apply for an MoA Import Recommendation 
during three months of the year. We, thus, agree with Indonesia, that there are no longer any 
"dead zones" arising from the new validity periods. On this basis, we consider that the application 
windows and the validity periods, as a single measure, have ceased to exist, and has, therefore,  
expired  . 
7.6.5.3.3   Whether the limited validity period, as enacted through MoA 34/2016, is 
inconsistent with Article XI:1 of the GATT 1994, Article 4.2 of the Agreement on 
Agriculture  and Article 3.2 of the Import Licensing Agreement  
7.441.   We understand Brazil to maintain its claim that the new validity period enacted through 
Article 30(1) of MoA  34/2016  is inconsistent with Article XI:1 of the GATT 1994, Article 4.2 of the 
Agreement on Agriculture  and Article 3.2 of the Import Licensing Agreement.611 On this basis, we 
first turn to the question of whether the new validity period, as enacted through MoA 34/ 2016, is 
within our terms of reference.  
7.442.   Before turning to this question, we note that we have analysed the application windows 
and the validity periods as a single measure. We followed this analytical approach in response to 
the manner in which Brazil pres ented its case. However, we do not consider that this analytical 
approach prevents us from considering subsequent developments as relevant to only one of those 
two aspects of the single measure we examined.  
                                                
606 Brazil's response to Panel question No. 103.  
607 Brazil's response to Panel question No. 103.  
608 Indonesia's response to Panel question No. 24 (last paragraph); second written submission, paras.  
19-22 and 129; and response to Panel question No. 113.  
609 Indonesia's comments to Brazil's response to Panel question No. 103, paras. 81 -85. 
610 Brazil's response to Panel question No. 103.  
611 Brazil's response to Panel question No. 103.  WT/DS484/R  
 
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  7.443.   As discussed above, in line with the Appellate Bo dy's jurisprudence in Chile – Price Band 
System , we consider that our terms of reference cover subsequent amendments to the measure at 
issue so long as that measure remains in essence the same.612 In our view, Article  30(1) of 
MoA 34/2016 is an amendment to a measure identified in Brazil's panel request, namely, the 
limited validity period.613 Through this amendment, the validity period of the MoA Import 
Recommendation has changed  from four to six months. We consider this change not to be such 
that the measure is no longer in essence the same.  
7.444.   We further note that both Indonesia614 and Brazil615 agree that the validity period, as 
enacted in Article 30 of MoA  34/2016, is within the Panel's terms of reference. On this basis, we 
consider that the new validity period i s within our terms of reference , and we thus  have 
jurisdiction to  review its WTO consistency . 
7.445.   Brazil has not adduced any further evidence or arguments explaining why the new validity 
period, absent the application windows, is inconsistent with Article XI:1  of the GATT 1994, 
Article  4.2 of the Agreement on Agriculture  or Article 3.2 of the Import Licensing Agreement.  
7.446.   We recall that the Appellate Body indicated that:  
A prima facie  case must be based on "evidence  and legal argument" put forward by 
the complai ning party in relation to  each of the elements of the claim.616 A 
complaining party may not simply submit evidence and expect the panel to divine 
from it a claim of WTO -inconsistency.617 Nor may a complaining party simply allege 
facts without relating them to its legal arguments.618 
7.447.   On the basis of the foregoing, and applying this standard, we consider that Brazil has failed 
to make a prima facie  case that the validity period, as enacted through MoA 34/2016 and MoT 
59/2016, is inconsistent with Article XI:1 of th e GATT 1994, Article 4.2 of the Agreement on 
Agriculture  and Article 3.2 of the Import Licensing Agreement.  
7.6.5.3.4   Whether the fixed licence terms , as enacted through MoA 34/2016  and 
MoT 59/2016 , are inconsistent with Article XI:1 of the GATT 1994, Article 4.2 o f the 
Agreement on Agriculture  and Article 3.2 of the Import Licensing Agreement  
7.448.   As noted above, the parties do not develop new arguments in respect of the fixed licence 
terms as enacted through MoA 34/2016 and MoT 59/2016. As can be seen from Table 6 above, the 
provisions in MoA 34/2016 and MoT 59/2016 through which the fixed licence terms are enacted 
are virtually identical to the relevant provisions in the previous legal instruments, namely 
MoA 58/2015 and MoT 05/2016. For this reason, we consider that t he fixed licence terms, as 
enacted through MoA 34/2016 and MoT 59/2016 are within our terms of reference and we have 
jurisdiction to rule on them.  
7.449.   Furthermore, because the relevant provisions of MoA 34/2016 and MoT 59/2016 are 
almost identical to those in  the previous legal instruments, we find that the fixed licence terms 
continue to apply in the same manner. Our findings on Article XI and XX(d) of the GATT 1994, in 
respect of the measure as enacted through MoA 58/2015 and MoT 05/2016, therefore, also app ly 
                                                
612 See section 7.2.4 above.  
613 Brazil's panel request, p. 7.  
614 Indonesia's response to Panel question No. 102.  
615 Brazil's comments on Indonesia's response to Panel question No. 102, para. 29.  
616 (footnote original) Appellate Body Report, US – Wool Shi rts and Blouses , p. 16, DSR  1997:I, 323, at 
336. (emphasis added) As not every claim of WTO -inconsistency will consist of the same elements, "the nature 
and scope of evidence required to establish a prima  facie case 'will necessarily vary from measure to m easure, 
provision to provision, and case to case'". (Appellate Body Report, Japan – Apples , para. 159 (quoting 
Appellate Body Report, US – Wool Shirts and Blouses , p. 14, DSR 1997:I, 323, at 335))  
617 (footnote original) In Canada – Wheat Exports and Grain I mports , para. 191, the Appellate Body 
made a similar observation in the context of an appeal under Article 11 of the DSU:   
… it is incumbent upon a party to identify in its submissions the relevance of the provisions of 
legislation —the evidence —on which i t relies to support its arguments. It is not sufficient merely to file an entire 
piece of legislation and expect a panel to discover, on its own, what relevance the various provisions may or 
may not have for a party's legal position.   
618 Appellate Body Rep ort, US – Gambling , para. 140.  WT/DS484/R  
 
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  to the measure as enacted through MoA 34/2016 and MoT 59/2016. In addition, for the reasons 
explained above, we do not consider it necessary to make findings under Article 4.2 of the 
Agreement on Agriculture o r under Article 3.2 of the Import Licensing Agreement.  
7.6.5.4   Conclusion  
7.450.   On the basis of the foregoing, we find that the application windows, the validity periods 
and the fixed licence terms, as enacted through MoA  58/2015 and MoT 05/2016, are inconsistent 
with Article  XI:1 of the GATT 1994 and are not ju stified under Article XX(d) of the GATT 1994.  
7.451.   We also find that the combined operation of the application windows and the validity 
periods expired with the adoption of MoA  34/2016. Consequently, we will not make a 
recommendation in respect of the measure as enacted through MoA 58/2015 and MoT 05/2016 .  
7.452.   Finally, we find that the new validity period, as enacted through MoA 34/2016, is a 
measure that falls within our terms of reference. However, we find that Brazil failed to make a 
prima facie  case that the ne w validity period, as enacted through MoA 34/2016, is inconsistent 
with Article XI:1 of the GATT 1994 , Article 4.2 of the Agreement on Agriculture  and Article 3.2 of 
the Import Licensing Agreement.  We also find that the fixed licence terms as enacted throu gh 
MoA 34/2016 and MoT 59/2016 are within our terms of reference  and that the above findings on  
Article XI:1  and on Article XX(d) of the GATT 1994  apply . 
7.6.6   Discretionary import licensing  
7.6.6.1   Introduction  
7.453.   Brazil argues that there are certain elements of Indonesi a's import licensing regime, which, 
by virtue of their design and structure, constitute discretionary import licensing in terms of 
Article  4.2 of the Agreement on Agriculture . These include (i) letter of recommendation from 
provincial livestock services of fice, (ii) supervision on the compliance of veterinary public health 
requirements, and (iii) MoT's power to determine the amount of imports.619 Indonesia considers 
that none of these measures constitute discretionary import licensing.620 In the alternative, Br azil 
submits that these requirements constitute similar border measures to discretionary import 
licensing within the meaning of Article 4.2 of the Agreement on Agriculture .621 Indonesia considers 
that because Brazil made an unsubstantiated assertion that the se measures constitute similar 
border measures to discretionary import licensing, Brazil has failed to make its prima facie  case.622 
7.454.   In response to a question from the Panel the parties expressed their views on whether 
these measures are within the Panel's t erms of reference. Indonesia considers that these 
measures are not within the Panel's terms of reference.623 
7.6.6.2   Panel's jurisdiction  
7.455.   We first examine whether the elements of Indonesia's import licensing regime which  Brazil 
challenges as  discretionary import li censing are within the Panel's terms of reference.  
7.456.   Brazil considers these elements to be part of what Brazil described in its panel request as 
"several approvals, authorizations and recommendations granted under the discretion of 
Indonesian authorities" .624 Brazil further argues that to the extent that the discretionary elements 
of the MoA Recommendation and MoT Approval are within the Panel's terms of reference, the 
                                                
619 Brazil's first written submission, para s. 234 and 237; second written submission, paras. 165 and 
169; and response to Panel question No. 108(a).  
620 Indonesia's first written submission, paras. 268 -271. See also response to P anel question No. 57. 
See Indonesia's comments on Brazil's response to Panel question No. 108 (referring to Indonesia's first written 
submission, paras. 272 -274; second written submission, para. 13; and responses to Panel question Nos. 12, 
17, 18, 104(e), 105, 113 and 117).  
621 Brazil's first written submission, para. 237.  
622 Indonesia's first written submission, para. 276.  
623 Indonesia's response to Panel question No. 105.  
624 Brazil's response to Panel question No. 105 ( citing section II(v) of Brazil's panel re quest, p. 7 ). See 
also response to Panel question No. 108(c).  WT/DS484/R  
 
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  process to obtain the documents required for each are also within the panel's terms of 
reference.625 
7.457.   Indonesia contests this view and argues that the discretionary elements challenged by 
Brazil are not closely related to any of the measure identified in Brazil's panel request. Indonesia 
considers that Brazil's overly broad reference to "authorizati ons and recommendations" comprising 
Indonesia's import recommendations and approvals, does not amount to having provided 
Indonesia with adequate notice of the specific measures challenged as discretionary import 
licensing.626 
7.458.   As explained in section 7.1.2.2.1  above, Article 6.2 of the DSU contains two distinct 
requirements, namely (1) the identification of the specific measures at issue and (2) the provision 
of a brief summary of the legal basis of the complaint (or the claims) su fficient to present the 
problem clearly. Together these two elements comprise the "matter referred to the DSB", and 
form the basis of the panel's terms of reference under Article  7.1 of the DSU.627 In our view, 
Indonesia's challenge to these measures being w ithin the Panel's terms of reference relates to the 
identification of the measures at issue.  
7.459.   The Appellate Body has noted that "the measures at issue must be identified with sufficient 
precision so that what is referred to adjudication by a panel may be d iscerned from the panel 
request" .628 
7.460.   In our preliminary ruling, as set out in section 7.1.2.3  above, we found that Brazil's claims 
only pertained to specific aspects of Indonesia's import licensing regime. Section II.v of Brazil' s 
panel request refers to "Restrictions on the importation of chicken meat and chicken products 
through Indonesia's Import Licensing regime". This section contains an introductory paragraph 
followed by a bullet point list describing different aspects of th e licencing regime.629 
7.461.   The bullet point  list contains, inter alia, the following item: "the MoA Regulations – and a 
MoT Recommendation – limit the type and quantity of animal products allowed to be imported  by 
determining the types and quantities of products  specified in a Recommendation or Import 
Approva l630".631 In our view, t his item properly identifies  MoT's power to determine the amount of 
imported goods , as a specific aspe ct of Indo nesia' licensing regime  at issue in this dispute . On this 
basis, we consider  this measure to be properly within our terms of reference.  
7.462.   In contrast, the bullet point list does not contain any item or reference to the letter of 
recommendation of the provincial livestock services office nor the supervision on the compliance of 
veterinary public health requirements  let alone any discretion relating to these . We therefore turn 
to examine the introductory paragraph to section II.v of Brazil's panel request.  
7.463.   This paragraph of Brazil's panel request refers to importers obtaining import l icensing after 
"several approvals, authorizations and recommendations granted under the discretion  of 
Indonesian authorities , which comprises  (i) an Importer Designation from the Ministry of Trade for 
animals and animal products ; (ii) an animal and animal products Import Recommendation from 
the Ministry of Agriculture ; and (iii) an Import Approval from the Ministry of Trade. "632 Thus, the 
introductory paragraph generally refers to "discretion" in the context of referring, inter alia , to the 
Import Recommendat ion. We note that t he letter of recommendation is  part of what an importer 
                                                
625 Brazil's comments on Indonesia's response to Panel question No. 105, paras. 31 -34. 
626 Indonesia's response to Panel question No. 105.  
627 Appellate Body Report, US – Countervailing and Anti -Dumpi ng Measures (China) , para. 4.6 (citing 
Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 639 (referring to Appellate 
Body Reports, Guatemala – Cement I , paras. 72 and 73; US – Carbon Steel , para. 125; US – Continued 
Zeroing , para. 160; US – Zeroing (Japan) (Article 21.5 – Japan) , para. 107; and Australia – Apples , para. 416).  
628 Appellate Body Report, US – Continued Zeroing , para. 168.  
629 The introductory paragraph ends as follows: "Moreover, Indonesia's trade -restrictive impor t licensing 
regime for chicken meat and chicken products includes, but is not limited to, the following measures:"  
630 (footnote original) See, e.g., Article 28 of MoA Regulation 139/2014 (stating that the quantity of 
animal product specified in a Recommenda tion is set by the Ministry of Trade).  
631 Brazil's panel request, p. 7  
632 Brazil's panel request, p. 7.  WT/DS484/R  
 
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  has to submit when applying for an MoA Import Recommendation .633 The letter is issued by an 
entity different from the one in charge of issuing the MoA Import Recommendation . It is, th us, one 
step removed from the process of issuance of the MoA Import Recommendation and possible 
issues arising in respect of discretion are not the same as those that may arise with respect to the 
issuance of the MoA Import Recommendation itself. In our vi ew, therefore, the general reference 
to "discretion" contained in the introductory paragraph, is not specific enough to encompass 
possible discretionary aspects of the letter of recommendation.   
7.464.   As regards the supervision on the compliance of veterinary p ublic health requirements , we 
observe that this is a process of  verification of certain health requirements , which is carried out  
upon importation of a product.634 This supervision , thus,  is not part of the ( ex ante ) licencing 
process that involves the issuance of an MoA Import Recommendation  and MoT Import Approval . 
In our view, therefore, the general reference to "discretion" contained in the introductory 
paragraph, is not pertinent to  the supervision on the compliance of veterinary health 
requirements.   
7.465.   We find support for this reading of the introductory par agraph of this section of Brazil's 
panel request  in the fact that Brazil , as seen above,  has specifically identif ied other alleged 
discretionary aspects  of Indonesia's licensing system in the bullet poi nts following that paragraph.    
7.466.   On th e basis of the foregoing , we consider that the wording of Brazil's panel request does 
not allow us to discern that Brazil was challenging the l etter of recommendation from provincial 
livestock services office  nor the  supervision on the compliance of veterinary public health 
requirements . In our view , the reference in the introductory paragraph to section II.v of Brazil's 
panel request is insufficient  to satisfy the requirement of Article 6.2 of the DSU to identify th ese 
two challenged measures.635 We further note that in response to a question from the Panel, Brazil 
did not refer to discretionary import licensing as part of the specific aspects of Indonesia's import 
licensing regime that it challenged.636  
7.467.   We will therefore only examine MoT's power to determine the amount of imported 
products , which according to Brazil constitute s discretionary import licensing under Article 4.2 of 
the Agreement on Agriculture  and is inconsistent with Article 3.2 of the Import Licensing 
Agree ment.  
7.468.   In section 7.6.3 above the Panel set out its preferred order of analysis. As explained 
above, w e first examine Brazil's claim  under Article  4.2 of the Agreement on Agriculture . Then we 
turn to our assessment of th is eleme nt under Article 3.2 of the Import Licensing Agreement.  
7.6.6.3   WTO consistency of MoT's power to determine the amount of imported goods  
7.6.6.3.1   Whether MoT's power  to determine the amount of imported goods is 
inconsistent with Article 4.2 of the Agreement on Agriculture  
7.469.   Article 4.2 of the Agreement on Agriculture  provides:  
Members shall not maintain, resort to, or revert to any measures of the kind which 
have been required to be converted into ordinary customs duties1, except as 
otherwise provided for in Article 5 and An nex 5.  
                                                
633 See Article 24(1)(i) of MoA 139/2014 (Exhibit BRA -34/IDN -126), Article 23(1)(i) of MoA 58/2015 
(Exhibit BRA -01/IDN -24), and Article 22(1)(i) of MoA 34/2 016 (Exhibit BRA -48/IDN -93). 
634 See Articles 34 and 38(2) of MoA 139/2014 (Exhibit BRA -34/IDN -126), Articles 33 and 37(2) of 
MoA 58/2015 (Exhibit BRA -01/IDN -24), and Articles 33 and (37(2) of MoA 34/2016 (Exhibit BRA -48/IDN -93). 
635 We note that in its first and second written submissions, Indonesia provides substantive arguments 
in respect of these measures not constituting discretionary import licensing (Indonesia's first written 
submission, paras. 268 -271. See also response to Panel question No. 57. See Ind onesia's comments on Brazil's 
response to Panel question No. 108 (referring to Indonesia's first written submission, paras. 272 -274; second 
written submission, para. 13;  and responses to Panel question No s. 12, 17, 18, 104(e), 105, 113 and 117)). In 
additi on, Indonesia did not raise any objections with respect to these measures in its request for a preliminary 
ruling. Indonesia only objected to these measures being within our terms of reference as a result of a question 
posed by the Panel.  
636 Brazil's respon se to Panel question No. 15.  WT/DS484/R  
 
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  _______________________  
1 (footnote original)  These measures include quantitative import restrictions, variable import 
levies, minimum import prices, discretionary import licensing, non -tariff measures maintained 
through state -trading enterprises, v oluntary export restraints, and similar border measures other 
than ordinary customs duties, whether or not the measures are maintained under 
country -specific derogations from the provisions of GATT 1947, but not measures maintained 
under balance -of-payment s provisions or under other general, non -agriculture -specific provisions 
of GATT  1994 or of the other Multilateral Trade Agreements in Annex  1A to the WTO Agreement.   
7.470.   An assessment of whether MoT's power to determine the amount of imported goods  is 
consist ent with Article 4.2  requires us to answer two questions: (1) whether the challenged 
measure is of the type required to be converted into ordinary customs duties (e.g. it constitutes 
discretionary import licensing or a similar border measure); and (2) whet her such a measure is 
maintained under balance -of-payments provisions or other general, non -agriculture -specific 
provisions. As discussed in section 7.2.3.2  above, this second question will only be relevant to the 
extent that t he respondent has claimed this to be the case.637  
7.471.   Indonesia has not argued that this measure is  maintained under balance -of-payments 
provisions or other general, non -agriculture -specific provisions. We will thus focus our analysis on 
the first question, tha t is, whether this measure  constitutes discretionary import licensing.  
7.472.   As noted in section 7.2.4 above, the legal instruments enacting MoT's power to determine 
the amount of imported goods  have been revoked and replaced twice s ince panel establishment. 
The following table reproduce s the provisions relevant for our subsequent analysis in each of the 
three sets of legal instruments.  
 
Table 7 Minister's power to determine the amount of imported goods  
First s et of legal 
instruments  Second set of legal 
instruments  Third set of legal instruments  
MoA 139/2014  
 
Art. 28  
The quantity allocation in the 
recommendation per 
Business Actors, State -owned 
Entities, Regional  
Entities, Social Institutions, 
and Foreign 
Count ry/International 
Institution Representatives is 
defined  
by the Minister of Trade.  
 MoA 58/2015  
 
Art. 27   
Determination of the amount in 
Recommendation per Business 
Player, Social Institution, and  
Foreign Country 
Representative/International 
Institution, s hall be stipulated by 
the minister  
administrating governmental trade 
affairs.  MoA 34/2016  
 
No equivalent provision  
 
7.473.   Article 27 of MoA 58/2015 provides that determination of the amount of imported goods in 
the MoA Import Recommendation shall be stipulated  by the Minister of Trade. This provision 
reproduces, almost word for word, Article 28 of MoA 139/2014, which was identified in Brazil's 
panel request.638 On this basis we consider that the measure is in essence the same as the one 
identified in Brazil's pan el request and therefore we have jurisdiction to review its WTO 
consistency . 
7.474.   We note that Brazil developed its claim that MoT's power to determine the amount of 
imported goods in the MoA Import Recommendation constitutes discretionary import licensing in 
two paragraphs of its second written submission.639 
                                                
637 See Panel Report, Turkey – Rice, para. 7.137.  
638 Brazil's panel request, p. 8.  
639 Brazil's second written submission, para. 170. We note that in EC – Fasteners (China)  the respondent 
challenged the procedural stage at which the  complainant developed certain arguments in support of a WT/DS484/R  
 
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  7.475.   We recall that the Appellate Body reasoned that "a prima facie  case must be based on 
'evidence  and legal argument' put forward by the complaining party in relation to  each of the 
elements of the claim.640"641 The Panel considers that Brazil's arguments and evidence are 
insufficient to support a prima facie  case that Article 27 of MoA 58/2015 is inconsistent with 
Article  4.2 of the Agreement on Agriculture . In our view, Brazil has merely asserted that the text 
of this provision can be read to mean that the Minister of Trade  has discretion to establish the 
amount of the imported goods . However, Brazil has failed to explain the manner in which this 
measure relates to the issuance of an MoA Import Recommendation or ho w this measure 
constitutes "import licensing" for the purposes of our analysis under Article 4.2 of the Agreement 
on Agriculture . In addition, Brazil has not rebutted the explanation provided by Indonesia that the 
amount in the MoA Import Recommendation is  determine d by the importer applying for it and 
endorsed by the MoT and the MoA.642 
7.476.   Moreover, we note that MoA 34/2016 no longer includes any reference to the wording of 
Article 27 of MoA 58/2015.  
7.477.   On the basis of the foregoing, we find that Brazil failed to make a prima facie  case that 
Article 27 of MoA 58/2015 is inconsistent with Article 4.2 of the Agreement on Agriculture .  
7.6.6.3.2   Whether MoT's discretion to determine the amount of imported goods is 
inconsistent with Article 3.2 of the Import Licensing Agreement  
7.478.   In this section we address the consistency of MoT's power to determine the amount of 
imported goods  with Article 3.2 of the Import Licensing Agreement.  
7.479.   Article 3.2 of the Import Licensing Agreement provides:  
Non-automatic licensing shall not have trade -restrictive or —distortive effects on 
imports additional to those caused by the imposition of the restriction.  Non-automatic 
licensing procedures shall correspond in scope and duration to the measure they are 
used to implement, and shall be no more administra tively burdensome than absolutely 
necessary to administer the measure.  
7.480.   An assessment of this matter requires us to determine first whether we are in the presence 
of a non -automatic import licensing system. If that is the case, we then need to examine, in 
respect of the first sentence, whether the import licensing procedure at issue has a trade -
restrictive or -distortive effect additional to that caused by the underlying restriction. In addition, 
under the second sentence, we would need to examine whether th e measure at issue corresponds 
"in scope and duration to the measure they are used to implement" and whether it is "more 
administratively burdensome than absolutely necessary to administer the measure" . 
7.481.   We note that Brazil developed its claim that MoT's po wer to determine the amount of 
imported goods is inconsistent with Article 3.2 of the Import Licensing Agreement in one 
paragraph of its second written submission.643 
                                                                                                                                                  
measure identified in its panel request. In addressing this issue, the Appellate Body concluded that the "late 
assertion of a claim …, and the absence of proper argumentation and of the provision of relevant evidence in 
support of this assertion, demonstrates that the European Union was not called upon to respond to China's 
claim under Article 6.5" . (Appellate Body Report, EC – Fasteners (China) , para. 574.). Indonesia has not 
objected to Brazil devel oping its arguments in its second written submission.  
640 (footnote original) Appellate Body Report, US – Wool Shirts and Blouses , p. 16, DSR  1997:I, 323, at 
336. (emphasis added) As not every claim of WTO -inconsistency will consist of the same elements, "th e nature 
and scope of evidence required to establish a prima  facie case 'will necessarily vary from measure to measure, 
provision to provision, and case to case'". (Appellate Body Report, Japan – Apples , para. 159 (quoting 
Appellate Body Report, US – Wool Shirts and Blouses , p. 14, DSR 1997:I, 323, at 335)) . 
641 Appellate Body Report, US – Gambling , para. 140.  
642 Indonesia's response to Panel question No. 12.  
643 Brazil's second written submission, para. 171. We note that in EC – Fasteners (China)  the respondent  
challenged the procedural stage at which the complainant developed certain arguments in support of a 
measure identified in its panel request. In addressing this issue, the Appellate Body concluded that the "late 
assertion of a claim …, and the absence of proper argumentation and of the provision of relevant evidence in 
support of this assertion, demonstrates that the European Union was not called upon to respond to China's WT/DS484/R  
 
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  7.482.   We recall that the Appellate Body reasoned that "a  prima facie  case must be based on 
'evide nce and legal argument' put forward by the complaining party in relation to  each of the 
elements of the claim.644"645 We consider that Brazil's arguments and evidence are insufficient to 
support a prima facie  case that Article 27 of MoA 58/2015 is inconsistent  with Article  3.2 of the 
Import Licensing Agreement. In our view, Brazil has merely asserted that : 
[I]t is easy to see that they [the three elements challenged as discretionary import 
licensing] fail under Article 3.2 of the ILA, as they impose a heavy bur den on the 
exporter, who needs to comply with a series of overlapping import controls that are 
not "absolutely" necessary to achieve Indonesia's policy objectives.646 
7.483.   By limiting its arguments to this statement, Brazil has failed to explain each of the 
eleme nts of this claim and to adduce arguments and evidence in support of its contention. We 
therefore find that Brazil failed to make a prima facie  case that Article 27 of MoA 58/2015 is 
inconsistent with Article 3.2 of the Import Licensing Agreement.  
7.6.6.4   Conclusi on 
7.484.   On the basis of the foregoing, we conclude that the letter of recommendation from the 
provincial livestock services office  and the supervision on the compliance with veterinary public 
health requirements are outside our terms of reference.  
7.485.   We further fi nd that Brazil has failed to make a prima facie  case that MoT's power to 
determine the amount of imported goods is inconsistent with Article 4.2 of the Agreement on 
Agriculture  or Article 3.2 of the Import Licensing Agreement.  
7.6.7   Other aspects of Indonesia's import licensing regime  
7.486.   We note that in addition to the claims that we have examined on Indonesia's import 
licensing regime, Brazil raised two additional claims. The first pertains to the denial of import 
licences to secure price stabilization. The second  concerns what Brazil identified as  additional 
restrictions on "certain products" and "processed products".  We will address each of these by first 
examining whether they fall within our terms of reference and then assessing Brazil's claims.  
7.6.7.1   Denial of import  licences to secure price stabilization  
7.487.   The bullet point list contained in s ection II.v of Brazil's panel request includes the following 
item:  "[t]o secure price stabilization, import licenses may not be granted by the Indonesian 
authorities to attend its objectives of price policy and import management" .647 This reference 
clearly places this element of Indonesia's import licensing regime within our terms of reference, 
and we thus have jurisdiction to review its WTO consistency . 
7.488.   Brazil has not developed  specific arguments against  this element of Indonesia's import 
licensing regime . However, following a question from the Panel, Brazil indicates that it maintains 
                                                                                                                                                  
claim under Article 6.5" . (Appellate Body Report, EC – Fasteners (China) , para. 574. ). Indonesia has not 
objected to Brazil developing its arguments in its second written submission.  
644 (footnote original) Appellate Body Report, US – Wool Shirts and Blouses , p. 16, DSR  1997:I, 323, at 
336. (emphasis added) As not every claim of WTO -inconsi stency will consist of the same elements, "the nature 
and scope of evidence required to establish a prima  facie case 'will necessarily vary from measure to measure, 
provision to provision, and case to case'". (Appellate Body Report, Japan – Apples , para. 1 59 (quoting 
Appellate Body Report, US – Wool Shirts and Blouses , p. 14, DSR 1997:I, 323, at 335)) . 
645 Appellate Body Report, US – Gambling , para. 140.  
646 Brazil's second written submission, para. 171. We note that in EC – Fasteners (China)  the respondent 
challenged the procedural stage at which the complainant developed certain arguments in support of a 
measure identified in its panel request. In addressing this issue, the Appellate Body concluded that the "late 
assertion of a claim …, and the absence of prop er argumentation and of the provision of relevant evidence in 
support of this assertion, demonstrates that the European Union was not called upon to respond to China's 
claim under Article 6.5" . (Appellate Body Report, EC – Fasteners (China) , para. 574.). I ndonesia has not 
objected to Brazil developing its arguments in its second written submission.  
647 Brazil's panel request, p. 8.  WT/DS484/R  
 
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  its claim regarding the denial of import licences to secure price stabilization.648 Indonesia consider s 
that Brazil did not develop this claim and thus failed to make a prima facie  case for this 
measure.649 
7.489.   We agree with Indonesia that Brazil has not developed any significant arguments in 
respect of this measure. The references made by Brazil in response to a question from the Panel 
regarding the basis of its claim are limited to a section on the factual description of Indonesia's 
import licensing regime in its first written submission. In our view, this is far from sufficient for a 
complainant to raise a prima facie  case. On this basis we find that Brazil has not made a prima 
facie case that the denial of import licences to secure price stabilization is inconsistent with any of 
the covered agreements.  
7.6.7.2   Additional restrictions on "certain products" and "process ed products"  
7.490.   In its first written submission Brazil referred to a number of additional restrictions on 
"certain products" and "processed products".650 In response to a question from the Panel on 
whether Brazil considered these additional restrictions to be p art of its claims against certain 
aspects of Indonesia's import licensing regime, Brazil replied in the affirmative .651 
7.491.   In perusing Brazil's panel request, we cannot find any reference to a challenge being raised 
in respect of measures referring to "certain products" or "processed products" as part of Brazil's 
claims against Indonesia's import licensing regime or elsewhere in the panel request. We therefore 
consider that the challenge against these measures is not within our terms of reference.  
7.6.8   Overall c onclusion  
7.492.   In sum, we find that the positive list requirement and the intended use requirement are in 
the nature of an import licensing rule. We thus conclude that these measures do not fall under the 
purview of the Import Licensing Agreement.  
7.493.   We find that the  application windows, the validity periods and the fixed licence terms, as 
enacted through MoA  58/2015 and MoT 05/2016, are inconsistent with Article  XI:1 of the 
GATT  1994 and are not justified under Article XX(d) of the GATT 1994.  Having found that the 
application windows, the validity periods and the fixed licence terms, as enacted through 
MoA 58/2015 and MoT 05/2016 are inconsistent with  Article XI of the GATT 1994, we consider that 
it is not necessary to address Brazil's claim s under Article 4.2 of the Agreement on Agriculture  and 
Article 3.2 of the Import Licensing Agreement in order to secure a positive solution to this dispute.  
7.494.   We further find that the application windows and the validity periods, as a single measure, 
has expired because of the amendm ents introduced through the relevant provisions in 
MoA 34/2016 and MoT 59/2016. W e thus refrain from making  a recommendation in respect of the 
application windows and the validity period, as a single measure . Moreover, with respect to the 
new validity peri od, as enacted through MoA  34/2016, we find that Brazil has failed to 
demonstrate that this measure is inconsistent with Article XI:1 of the GATT  1994, Article  4.2 of the 
Agreement on Agriculture  or Article 3.2 of the Import Licensing Agreement. We have al so found 
that because of the almost identical language in the relevant provisions governing the fixed licence 
terms, our findings on Article XI and XX(d) of the GATT 1994, in respect of this measure as 
enacted through MoA 58/2015 and MoT 05/2016, also appl y to this measure as enacted through 
MoA 34/2016 and MoT 59/2016.  
7.495.   We have also found that the letter of recommendation from the provincial livestock , the 
supervision on the compliance of veterinary health requirements, and additional restrictions on 
"certa in products" and "processed products" are not within our terms of reference.   
7.496.   Moreover, we conclude that Brazil failed to make a prima facie  case that the following 
aspects of Indonesia's import licensing regime are WTO -inconsistent: (1)  MoT's power to 
                                                
648 Brazil's response to Panel question No. 129 (referring to Brazil's first written submission, paras. 84 -
86). 
649 Indonesia's comme nts on Brazil's response to Panel question No. 129.  
650 Brazil's first written submission, fn 138 to para. 124.  
651 Brazil's response to Panel question No. 15(b).  WT/DS484/R  
 
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  determine the amount of imported goods in the MoA Import Recommendation , as enacted through 
MoA 58/2015 ; and (2) the denial of import licences to secure price stabilization.  
7.7  Individual measure 4: Undue delay in the approval of the veterinary health 
certificat e 
7.7.1   Introduction  
7.497.   Brazil claims that Indonesia has caused an undue delay with respect to the approval of a 
veterinary certificate for the importation of poultry from Brazil into Indonesia. Brazil posits that 
this constitutes a violation of Indonesia's obligat ions under Article 8 and Annex C(1)(a) of the 
SPS Agreement.652 Indonesia rejects Brazil's claim on two main grounds. First, Indonesia submits 
that it has not caused a delay in undertaking the relevant approval proceedings.653 Second, 
Indonesia argues that eve n if there were a delay, it cannot be deemed undue.654  
7.7.2   Relevant facts  
7.498.   Before referring to the relevant legal provisions and assessing the merits of the parties' 
arguments, the Panel will present its understanding of certain factual aspects relative to Brazi l's 
claim.  
7.7.2.1   Background to the relevant SPS approval procedure  
7.499.   It is our understanding that as part of sanitary and health surveillance, governments will 
normally require that, at the time of importation, certain animal products are accompanied by a 
veterina ry health certificate. A veterinary health certificate is a document issued by an officially 
recognized veterinarian in the country of origin, attesting certain health characteristics of the 
traded product and of its place of origin. These health character istics pertain to aspects, such as 
the pest or disease status of the product or the animal from which it is derived and of its place of 
origin; the type of veterinary inspection to which the animal was subject; the conditions of the 
establishment in which the products were obtained; the type of monitoring to which the 
establishments are subject; and the product's wholesomeness and suitability for human 
consumption.655  
7.500.   The health characteristics contained in a veterinary health certificate are usually the res ult 
of a bilateral process between the two trading partners. As part of this process, a Member 
normally evaluates the veterinary service of the trading partner interested in exporting animal 
products and verifies certain sanitary requirements in the countr y of origin.656 Sometimes this 
process also entails an examination of the business units interested in exporting. After the 
evaluation process is concluded, the relevant trading partners would normally agree to the text of 
a model veterinary health certifica te.  
7.501.   As seen in 7.6.6 above , under Indonesian law, imported animal products must be 
accompanied by a veterinary health certificate.657 As set out in Indonesia's laws and regulations, 
the process of obtaining an agreed model ve terinary health certificate (as described in the previous 
paragraph), is part of the country of origin approval procedure. That approval procedure along 
with the business unit approval, both of which we have outlined in 7.3 a bove have been in place 
since 2006.  
                                                
652 Brazil's first written submission, paras. 35 -36 and 128 -131; opening statement at the first meeting 
of the Panel, paras. 96 -105; and second written submission, paras. 195 -215. 
653 Indonesia's response to Panel question No. 65; and second written submission, paras. 161 and 166.  
654 Indonesia's first written submission, paras. 363 -367; response to Panel q uestion No. 65; and second 
written submission, para s. 161-163 and 166.  
655 The veterinary health certificate proposed by Brazil to Indonesia for chicken products covers most of 
these aspects. See Brazilian veterinary certificate proposals for poultry meat (2 009) and for turkey and duck 
(2010), p. 4 (Brazil's proposed model veterinary health certificates) (Exhibit BRA -43).   
656 Chapter 3.2 of Volume I of the World Organization for Animal Health (OIE) Terrestrial Animal Health 
Code, on "evaluation of veterinary services" refers to the criteria that may be used in the process of evaluating 
the veterinary service of a country. See OIE, Terrestrial Animal Health Code (25th edition, 2016), Vol.  I, 
Chapter 3.2. Available at: http://www.oie.int/index.php?id=169&L=0&htmfile=chapitre_eval_vet_serv.htm  
(last accessed on 2 February 2017).  
657 This has been required since 1992. See Indonesia's response to Panel question No. 28.  WT/DS484/R  
 
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  7.502.   In 2009, the year relevant to the facts at issue, the country of origin and business unit 
approvals were regulated through MoA 20/2009.658 That regulation set out, inter alia,  the sanitary 
conditions that imported chicken  products must satisfy to enter Indonesia659, as well as the criteria 
that Indonesia uses to evaluate its trading partners' veterinary services.660 The country's disease 
status, which refers to the sanitary conditions of the place of origin of the relevant pro ducts, ha d 
to be based on an evaluation  of and a report on the relevant country, which may be recognized by 
the OIE.661 The evaluation  also had to include a review of the documents submitted to Indonesian 
authorities and through on -site verification, in the country of origin, of such information. This 
regulation furthermore  included requirements  relating to animal health and food safety, as well as 
to halal slaughtering , that specific business units interested in exporting should satisfy.662 Relevant 
teams in c harge of verifying the information had to  evaluate these requirements, both through a 
document review and an on -site inspection.663 After concluding the desk review and the on -site 
inspection, the relevant authorities in Jakarta had to undertake a risk analy sis. Following the risk 
analysis, the authorities would issue a country of origin and a business unit approval.664 That 
stipulation could be followed by the conclusion of a bilateral health protocol665, which would 
include, inter alia , the model veterinary hea lth certificate to be used.666  
Figure 4 Steps to obtain country of origin and business unit approvals  
 
 
7.503.   The regulations currently in force (GR 95/2012667 and MoA 34/2016668) follow this same 
structure669, and include more detailed provis ions on these procedures.670  
7.7.2.2   Brazil's request for the approval of a veterinary health certificate  
7.504.   It is uncontested by the parties that in June or July 2009, Brazil sent a communication to 
Indonesia requesting the approval of a veterinary health certificat e for the importation of chicken 
products from Brazil.671 Brazil formulated this request as part of efforts to find trade opportunities 
                                                
658 MoA 20/ 2009 (Exhibits BRA -08/IDN -100). See Indonesia's responses to Panel question No s. 28(a) 
and 130.  
659 Article 13 of MoA 20/2009 (Exhibits BRA -08/IDN -100).  
660 Article 9(3) of MoA 20/2009 (Exhibits BRA -08/IDN -100).  
661 Article 14 of MoA 20/2009 (Exhibits BRA -08/IDN -100). The OIE's disease status recognition can be 
found in the OIE's website: http://www.oie.int/animal -health -in-the-world/official -disease -status/  (last visited 
on 23  January 2017).  
662 Article 15 of MoA 20/2009 (Exhibits BRA -08/IDN -100).  
663 Article 16 of MoA 20/2009 (Exhibits BRA -08/IDN -100).  
664 Article 18 of MoA 20/2009 ( Exhibits BRA -08/IDN -100). 
665 Article 17 of MoA 20/2009 (Exhibit BRA -08/IDN -100).  
666 Article 1.28 of MoA  20/2009 (Exhibit BRA -08/IDN -100), defines an animal health and veterinary 
health protocol as the document containing requirements for animal health and veterinary health already 
approved by the Director General of Animal Husbandry.  
667 See Articles 29 and 3 0 of Government Regulation No. 95/2012 Concerning Veterinary Public Health 
and Animal Welfare (GR 95/2012) (Exhibit IDN -31). 
668 See Articles 9 through 16 of MoA 34/2016 (Exhibit BRA -48/IDN -93). 
669 See Indonesia's response to Panel question No. 30(a).  
670 See I ndonesia's response to Panel question No. 28(b).  
671 Brazil's first written submission, para. 35; Indonesia's response to Panel question No. 30(b); and 
Brazil's response to Panel question No. 35(a). See Brazil's proposed model veterinary health certificates 
(Exhibit BRA -43). Brazil also refers to having submitted, on August 2009, the answers to the "questionnaire to WT/DS484/R  
 
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  for its poultry meat industry.672 These efforts also included bilateral meetings between government 
officials in the agricul ture sector from Brazil and Indonesia. The se were  meetings of the 
Consultative Committee on Agriculture (CCA), which is part of the formal bilateral cooperation that 
had been set up.673 Brazil reiterated its interest to export chicken products to Indonesia d uring 
several CCA meetings that took place between 2009 and 2011.674  
7.505.   The minutes of the meeting of 15 and 16 September 2010 indicate that Indonesia 
accepted the propos ed model health veterinary certificate . The meeting addressed the necessity of 
an audit mi ssion to inspect the producing establishments and the halal procedures. Brazil invited 
the audit mission to come to Brazil during November 2010 and Indonesia mentioned the mission 
would only be possible in March 2011.675 However, it is uncontested between th e parties that 
subsequent to the meeting, Indonesia did not confirm i ts acceptance in writing and the audit 
mission did not take place. As Indonesia acknowledged in these proceedings, it has not responded 
to Brazil's 2009 request to accept the proposed vet erinary health certificate for chicken 
products.676 
7.506.   In December 2012, at least one Brazilian enterprise, interested in exporting chicken to 
Indonesia, submitted the relevant SPS related information necessary to obtain business unit 
approval to the Indonesian  authorities.677 In January 2013, Indonesia informed the Brazilian 
embassy in Jakarta that in addition to the information on the food safety assurance system, the 
Brazilian enterprise should submit information regarding its halal assurance system.678 The lette r 
indicated that the review would only be performed once the completed questionnaire of 
"Information On Halal Practices In Exporting Poultry Slaughterhouse" had been received.679 
7.507.   On 17 July 2014, Brazil sent a communication to Indonesia, pursuant to Article 5.8 of the 
SPS Agreement, requesting an explanation of the sanitary basis of certain import restrictions 
applicable to the importation of chicken products. In particular, Brazil asked Indonesia to provide 
the reasons for the delay in the approval procedure s of the veterinary health certificate for 
Brazilian poultry.680 In September 2014, Indonesia replied to Brazil, indicating, among other 
things, that the delay was due to the applicant's failure to comply with existing procedures. As 
                                                                                                                                                  
assess the Export of Meat and Meat Products to Indonesia", which Brazil submitted as Exhibit BRA -59. See 
Brazil's response to Panel question No. 133; and comments to Indonesia's response to Panel question No. 133. 
We further note that, as discussed in section 7.10.3.4  below, Brazil submitted to the Panel the letter dated 
17 July 2009 from the Director General of Livesto ck at the Department of Agriculture to the Brazilian 
Ambassador in Jakarta (Exhibit BRA -52). Brazil submitted this exhibit as evidence of the alleged general 
prohibition  and neither party referred to it in the context of Brazil's claim on undue delay. In t his letter, 
Indonesian authorities rejected Brazil's proposal to export poultry because domestic poultry industries in 
Indonesia have been well developed towards their self -sufficiency. We note that this letter predates the 
subsequent indication of Indones ia's acceptance of Brazil's pr oposed veterinary certificate at the CCA meeting 
that took place in December 2010.  
672 Brazil's first written submission, paras. 24 -35. 
673 Brazil's first written submission, para. 34.  
674 See Minutes of the Third Meeting of Consult ative Committee on agriculture (CCA) between the 
Ministry of Agriculture of the Republic of Indonesia and the Ministry of Agriculture, Livestock and Food Supply 
of Federative Republic of Brazil (Minutes of the CCA meeting of 4 and 5 May 2009) (Exhibit BRA -13); Minutes 
of the Fourth CCA Meeting between the Ministry of Agriculture of the Republic of Indonesia and the Ministry of 
Agriculture, Livestock and Food Supply of the Federative Republic of Brazil (Minutes of the CCA meeting of 15 
and 16 September 2010)  (Exhibit BRA -14); and Minutes of the Fifth CCA Meeting between the Ministry of 
Agriculture of the Republic of Indonesia and the Ministry of Agriculture, Livestock and Food Supply of 
Federative Republic of Brazil (Minutes of the CCA meeting of 24 and 25 Ma y 2011 ) (Exhibit BRA -16). 
675 Minutes of the CCA meeting of 15 and 16 September 2010, p. 5 (Exhibit BRA -14). 
676 Indonesia's response to Panel question No. 36.  
677 Questionnaire on food safety submitted by Cooperativa Central Aurora Alimentos on 27 December 
2012 (Exhibit IDN -125).  
678 Letter from the Ministry of Agriculture to the Embassy of Brazil in Jakarta, 22 January 2013 (Letter 
from Indonesia to Brazil of 22 January 2013) (Exhibit IDN -40). In October 2012, Indonesia informed the 
Brazilian embassy in Jarkata o f the need to submit food safety and halal assurance information to obtain 
country and establishment approval for the importation of turkey and duck from Brazil to Indonesia. Letter 
from Director General of Livestock and Animal Health Services to Ambassado r of Brazil in Jakarta, dated 15 
October 2012 (Exhibit IDN -124).  
679 See Letter from the Ministry of Agriculture to the Embassy of Brazil in Jakarta, 22 January 2013 
(Exhibit IDN -40). 
680 Brazil - Letter from Ambassador Marcos Galvão to Ambassador H.E. Triyono  Wibowo (Brazil's Article 
5.8 SPS request of July 2014) (Exhibit BRA -19). WT/DS484/R  
 
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  Indonesia explained in i ts response , this failure related to the fact that the relevant information on 
the halal assurance system in Brazil had not been submitted.681  
7.508.   Throughout these proceedings Indonesia has confirmed that the reason for not proceeding 
with the review of both co untry of origin and business unit approval is that the relevant 
information on halal requirements was still outstanding.682 Brazil, for its part, at the second 
meeting with the Panel, confirmed that to date, it has not submitted any halal information to 
Indonesia.683 
7.7.3   Whether Indonesia has acted in a manner inconsisten t with Article 8 and Annex 
C(1)(a) of the SPS Agreement  
7.509.   Article 8 of the SPS Agreement reads:  
Members shall observe the provisions of Annex C in the operation of control, 
inspection and approval p rocedures, including national systems for approving the use 
of additives or for establishing tolerances for contaminants in foods, beverages or 
feedstuffs, and otherwise ensure that their procedures are not inconsistent with the 
provisions of this Agreemen t. 
7.510.   Annex C(1)(a) of the SPS Agreement reads:  
1. Members shall ensure, with respect to any procedure to check and ensure the 
fulfilment of sanitary or phytosanitary measures, that:  
(a) such procedures are undertaken and completed without undue delay 
and in no less favourable manner for imported products than for like 
domestic products;  
7.511.   Article 8 mandates that Members observe the provisions of Annex C in the operation of 
control, inspection and approval procedures. Thus, a violation of the obligations contain ed in 
Annex C entails a violation of Article 8.684 
7.512.   A Panel assessing the consistency of a measure with the first clause of Annex C(1)(a) 
needs to determine (1)  that the challenged measure is an SPS control, inspection, or approval 
procedure subject to Annex C; (2)  that there has been a delay in a Member undertaking or 
completing such SPS procedure; and (3) that such delay is undue.685 
7.513.   Before turning to our examination of each of the elements necessary to determine whether 
the challenged measure is inconsistent with Annex C(1)(a), we will refer to an argument raised by 
Indonesia. Indonesia argues that Brazil did not properly raise its undue delay claim because Brazil 
had failed to identify the relevant legislation requiring the submission of a veterinary certific ate at 
the time of importation of chicken products into Indonesia.686 Brazil submits that regardless of the 
specific legal basis it referred to, the key issue is that such requirement is clearly established in 
Indonesia's legislation.687 
7.514.   We observe that Brazil 's claim concerns a failure by Indonesia to undertake and complete 
the relevant SPS approval procedure without undue delay. The measure at issue, thus, is not the 
relevant legislation applicable at the time, but Indonesia's alleged failure to comply with B razil's 
                                                
681 See Indonesia  - Answers related to the A rticle 5.8 SPS request (Exhibit BRA -20), in particular, 
response  to question No. 4.  
682 See Indonesia's response to Panel question No. 37(d); and second written submission, para. 172.  
683 Brazil explains that exporters would not reasonably make investments to meet Indonesia's halal 
slaughtering requirements if Indonesia's market is not open to accept importation of chicken products . See 
Brazil's o pening statement at the second meeting of  the Panel, para. 72.  
684 Appellate Body Report, Australia – Apples , para. 434.  
685 See Panel Reports, Russia – Pigs (EU) , paras. 7.505 and 7.1051; and US – Animals , para. 7.53.  
686 Indonesia's first written submission, p aras. 360 -362; and Indonesia's response to Panel question 
No. 34. 
687 Brazil's response to Panel question No. 33.  WT/DS484/R  
 
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  request.688 That claim is premised on the fact that Indonesia's legal framework requires imported 
chicken products to be accompanied by a veterinary health certificate. In our view, despite Brazil 
not referring to the correct legal instrument governi ng that requirement, the fact that it exists is 
uncontested by Indonesia.689 Thus, we are not persuaded by Indonesia's argument.  
7.515.   We turn to examine (1) whether Indonesia's refusal to examine and approve the 
veterinary health certificate for poultry products proposed by Brazil is subject to Annex C(1) of the 
SPS Agreement; (2) whether it amounts to a delay; and (3) whether such delay is undue.  
7.7.3.1   Whether the approval of Brazil's proposed veterinary health certificate for 
chicken is subject to Annex C of the SPS Agreement  
7.516.   Annex C applies to different "control, inspection and approval procedures"690, which the 
footnote to this title describes as, " inter alia , procedures for sampling, testing and certification ". 
Paragraph 1 of Annex C, in turn, refers to the relevant procedures as "any procedure to check and 
ensure the fulfilment of sanitary or phytosanitary measures".  
7.517.   It is uncontested among the parties that the approval of a veterinary health certificate is 
an SPS approval procedure within the above meaning and, ther efore, subject to Annex C of the 
SPS Agreement.691 We agree with the parties. As established in footnote  7 to Annex C, referred to 
above, Annex  C applies to procedures for certification. We understand that the approval of a 
veterinary health certificate fall s within this category. In addition, the approval of a veterinary 
health certificate is part of a procedure to check the fulfilment of specific sanitary measures, that 
is, sanitary requirements.  
7.518.   As noted above, pursuant to Indonesia's laws and regulations,  the approval of the 
veterinary health certificate is part of the country of origin approval procedure which, in turn is 
bundled with a business unit approval procedure. To the extent that these approval procedures 
check and ensure the fulfilment of sanita ry requirements (in addition to what is required for the 
approval of the veterinary health certificate), they also qualify as SPS approval procedures within 
the above meaning and, are, therefore, subject to Annex C.  
7.7.3.2   Whether there has been a delay in Indone sia's consideration of Brazil's 
proposed veterinary health certificate for chicken  
7.519.   As noted by the Appellate Body, the ordinary meaning of the word "delay" is "(a period of) 
time lost by inaction or inability to proceed".692 With this in mind, we turn to exa mine the facts in 
this dispute.  
7.520.   In mid -2009, Brazil submitted to Indonesia a request for the approval of a veterinary 
health certificate for chicken products.693 As noted above, Indonesia has confirmed to the Panel 
that it has not responded to this request.694 The request for the approval of a veterinary health 
certificate is step four in a country of origin approval procedure; however, in the present case, the 
request for approval has not yet progressed to step two, namely an on -site inspection. The reason 
for this "hold up" is, as Indonesia explains, that an application for business unit approval is not yet 
complete, because the relevant halal assurance documentation has not been submitted.695 
Indonesia has also indicated that until Brazil provides such informat ion, it will not move on to the 
                                                
688 See also Argentina's third -party statement, paras. 3 -4. 
689 See Brazil's first written submission, Annex 1 (referring to Indonesian sanitary req uirements for 
importation, specifically MoA 139/2014 (Exhibit  BRA-34) that requires a protocol for importation, which 
includes a veterinary certificate). See also Indonesia's first written submission, paras. 361 -362 (referring to 
Articles 27, 29 and 31 of GR 95/2012 (Exhibit IDN -31)). 
690 The title of Annex C is "Control, Inspection and Approval Procedures".  
691 Brazil's first written submission, para. 302; and second written submission, para. 199. See also 
Indonesia's response to Panel question No. 65; and sec ond written submission, para. 161.  
692 Appellate Body Report, Australia – Apples , para. 437 (citing Shorter Oxford English Dictionary , 6th 
edn, A. Stevenson (ed.) (Oxford University Press, 2007), Vol. 1, p. 635).  
693 Brazil's proposed model veterinary health c ertificates (Exhibit BRA -43). 
694 Indonesia's response to Panel question No. 36.  
695 See answer to question No. 4 of Indonesia's answers to Article 5.8 SPS request (Exhibit BRA -20); 
Indonesia's response to Panel Question No. 37(d); second written submission, p ara. 172; and response to 
Panel question No. 133(b).  WT/DS484/R  
 
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  on-site field inspection either of the country of origin approval or the business unit approval.696 
These facts suggest to us, that there is a declared intention by Indonesia not to proceed.  
7.521.   On the basis of the above, however , Indonesia makes two arguments, namely (1) that due 
to the incompleteness of the application the SPS approval procedure has not yet commenced with 
the consequence that no delay can have occurred, and (2) given the outstanding information to be 
received fr om the applicant, even if there were a delay, it would not be attributable to Indonesia 
but to the applicant itself. 697  
7.522.   We are not persuaded by Indonesia's argument on the incompleteness of Brazil's request 
for the following reasons. First, we do not consi der that an SPS approval procedure starts only 
when all the relevant information is submitted. Rather, the procedure is triggered with submission 
of an application for approval, whether or not it satisfies all the relevant requirements.698 We find 
support fo r this view in the relevant context of Annex C(1)(a). In particular, we recall that 
Annex  C(1)(b) requires Members to promptly examine "the completeness of the documentation" 
and inform "the applicant in a precise and complete manner of all deficiencies; …  even when the 
application has deficiencies, the competent body proceeds as far as practicable with the procedure 
if the applicant so requests".699 Therefore, the competent body is required to take an action or 
proceed, despite the irregularities in the appl ication, to the extent practical as opposed to waiting 
for the submission of all relevant information.  
7.523.   Second, we do not consider that in establishing whether there is a delay, we are required 
to consider the question of whether the delay is attributable t o one side or the other. That 
question, in our view, pertains to the examination of whether the delay is undue, discussed in 
detail in  section  7.7.3.3 below .700 
7.524.   Third, the SPS approval procedure at issue here is the approval o f the veterinary health 
certificate, which is in turn the fourth step in the country of origin approval process. In respect of 
this approval procedure Indonesia has not argued that there is any outstanding information which 
is due, and only pointed towards  halal information being due, which is non -SPS related and is dealt 
with in greater detail in the subsequent section below.  
7.525.   On the basis of the foregoing, we consider that Indonesia's declared inaction has led to a 
loss of time in the relevant SPS approval  procedure, constituting a delay.  
7.7.3.3   Whether the delay in Indonesia's consideration of Brazil's proposed veterinary 
health certificate for chicken is undue  
7.526.   Annex C(1)(a) requires Members to ensure that relevant procedures are undertaken and 
completed without  undue delay. The Appellate Body has interpreted this to mean that such 
procedures should be undertaken with appropriate dispatch, or in other words, should not involve 
periods of time that are unwarranted, or otherwise excessive, disproportionate or unjus tifiable.701 
7.527.   As mentioned above, Indonesia indicates that the procedure has not moved forward 
because of Brazil's failure to submit the relevant halal assurance questionnaire. In addition, both 
parties agree that halal slaughtering requirements are not SPS r elated.702 The legal question we 
                                                
696 Indonesia's second written submission, para. 172; and response to Panel question No. 133(b).  
697 Indonesia's second written submission, paras. 161 and 163.  
698 See Panel Report, EC – Approval and Marketing  of Biotech Products , paras. 7.1494, 7.1501 and 
7.1502 (finding that the phrase "undertake and complete" covers all stages of relevant procedures and should 
be taken as meaning that, once an application has been received, approval procedures must be starte d and 
then carried out from beginning to end).  
699 See Annex C(1)(b) of the SPS Agreement, which states that "when receiving an application, the 
competent body promptly examines the completeness of the documentation and informs the applicant in a 
precise and  complete manner of all deficiencies".  
700 See Panel Reports, EC – Approval and Marketing of Biotech Products , paras.  7.1494 and 7.1497; US- 
Poultry (China) , para. 7.354; and Russia – Pigs, paras. 7.532 and 7.534.  
701 Appellate Body Report, Australia – Apples , para. 437. See also Panel Report, EC – Approval and 
Marketing of Biotech Products , para. 7.1495 (finding that Annex C(1)(a) dictates that approval procedures 
should be undertaken and completed with no unjustifiable loss of time).  
702 See Indonesia's first w ritten submission, para. 371; and Brazil's second written submission, 
para. 212. WT/DS484/R  
 
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  are confronted with is whether a Member may delay the completion of an SPS approval procedure 
because of outstanding non -SPS related information that it requires the applicant to submit. If the 
answer is in the affirmative, t hen Indonesia would be correct in arguing that the delay is 
attributable to Brazil and is therefore justified. If the answer is in the negative, Brazil would be 
correct in arguing that Indonesia is unjustifiably holding back the relevant SPS approval proce dure.  
7.528.   Our assessment  is set forth below . As noted above, Annex C(1) of the SPS Agreement 
identifies the types of procedures to which the obligations contained in subparagraphs (a) through 
(i) apply, namely, "any procedure to check and ensure the fulfilmen t of sanitary or phytosanitary 
measures". This means that the purpose of the relevant procedure is to check and ensure the 
fulfilment of sanitary requirements.703 Thus, in our view, the scope of Annex C already delimits 
what delays may be warranted or justif ied, namely, those needed for a Member to be able to 
check and ensure the fulfilment of the relevant SPS requirements.704 This reading is confirmed by 
Annex  C(1)(c) which requires Members to ensure that "information requirements are limited to 
what is necess ary for appropriate control, inspection and approval procedures ". Therefore, 
requesting information that is not necessary to check and ensure fulfilment of sanitary 
requirements would run counter to this obligation.  
7.529.   We find support for our view in the sub missions of certain third parties to this dispute. 
Argentina and the European Union both argue that inaction caused by the applicant's failure to 
submit information would only be relevant if it relates to evidence required in order to conduct a 
risk assess ment or other controls designed to protect human, animal or plant life or health.705  
7.530.   Furthermore, we note that previous panels have taken the view that whenever a Member 
delays the relevant procedure because it has required information which has been found not to be 
necessary under Annex C(1)(c), such delay would be undue under Annex C(1)(a).706 
7.531.   Returning to the above legal question, on the basis of these considerations, we conclude 
that a Member may not delay the completion of an SPS approval procedure becaus e non -SPS 
related information, which the Member requires the applicant to submit, is outstanding from an 
application.  
7.532.   Applying this conclusion to the facts at issue, we recall  that the only information  which is 
outstanding  relates to  halal assurances, whi ch both parties agree is not SPS related.707 We agree. 
Accordingly we find that the delay is not justified and, is therefore undue. We note that given the 
scope of Brazil's claim, this finding applies to the approval procedure relevant to obtain the 
veterina ry health certificate, which, as seen above, is part of the country of origin approval 
procedure. As noted above, this procedure is bundled with the business unit approval procedure, 
which, has an SPS component as well as the halal component at issue.  
7.533.   We note Indonesia's argument that there are practical reasons to merge the procedures to 
verify both SPS and non -SPS related matters, which is what Indonesia has done with respect to 
animal health, food safety and halal assurances.  In particular, Indonesia sta tes that " it would be 
inefficient to start the Document Desk Review process of the food safety assurance system of the 
business unit in Brazil and proceed to the field on -site inspection for food safety, if it is not known 
whether the business unit has a h alal assurance system. To make separate trips to assess food 
safety and halal requirements separately would entail unnecessary costs for Indonesia, which is a 
developing country. "708 While we have some sympathy for this argument, we do not believe that it 
                                                
703 Appellate Body Report, Australia – Apples , para. 435; and Panel Report, EC – Approval and 
Marketing of Biotech Products , para. 7.1498.  
704 See Panel Reports,  EC – Approval and  Marketing of Biotech Products , paras. 7.1498 and 7.1500; and 
US – Animals , para. 7.143 (referring to a situation where a Member needs time to assess new or additional 
information). We further note that the delays attributable to action or inaction of an a pplicant cannot be held 
against the Member carrying out the procedure. See Panel Reports,  EC – Approval and Marketing of Biotech 
Products , para.  7.1497; US- Poultry (China) , para. 7.354; and Russia – Pigs, paras. 7.532 and 7.534.  
705 See Argentina's third -party submission, paras. 19 -23; Argentina's third -party statement, paras. 10 
and 13; European Union's third -party submission, paras. 92 -93; and European Union's third -party statement, 
para. 13. 
706 See Panel Report, Russia – Pigs (EU) , paras. 7.534, 7.583 and 7.1097.  
707 Indonesia's first written submission, para. 371; and Brazil's opening statement at the first meeting of  
the Panel, para. 99.  
708 Indonesia's second written submission, para. 164.  WT/DS484/R  
 
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  can overrule what we consider to be a clear requirement laid down in the SPS Agreement, namely 
that the verification of sanitary requirements is undertaken and completed  without undue delay.709  
7.534.   We emphasize that our finding does not concern or affect Indonesi a's right to impose halal 
requirements as a pre -marketing condition for the import ation of chicken. We also note that Brazil 
has not contested this right . We recognize that a Member has the right to impose halal 
requirements in a manner consistent with its  WTO obligations.  
7.7.4   Conclusion  
7.535.   On the basis of the foregoing, we find that Indonesia has caused an undue delay in the 
approval of the veterinary health certificate inconsistent with Article 8 and Annex C (1)(a) of the 
SPS Agreement.  
7.8  Individual measure 5: Halal labelling requirements  
7.8.1   Introduction  
7.536.   Brazil submits that Indonesia discriminates against imported chicken products through the 
manner in which it enforces its halal labelling requirements. On this basis, Brazil claims that 
Indonesia breaches Article III: 4 of the GATT 1994.710 Indonesia rejects Brazil's claim by arguing 
that the halal labelling requirements apply equally to the relevant like products.711 Alternatively, 
Indonesia submits that the challenged measure is justified under Article XX(a) and (d) of th e GATT 
1994.712  
7.8.2   Factual background  
7.537.   As seen in section 7.3 above , all chicken meat sold in Indonesia, whether domestic or 
imported, must be halal. Halalness is a requirement in Islam. For meat it generally means that the 
anima l: (1) must be permitted for Muslims to eat, (2) must have been slaughtered upon the 
pronouncing of specific words , and (3)  must have been slaughtered in a manner  that allows the 
animal to bleed to death .713 The specific standards on the exact details of the  slaughtering 
procedure may vary from country to country. In Indonesia,  Fatwa 12/2009 sets out the applicable 
standards.714 
7.538.   Indonesia has enacted several laws and regulations providing for the certification of 
halalness (that is, certification that an animal  has been slaughtered in accordance with the halal 
requirements) and for the labelling of halal products as "halal".715 Before 2014, the laws and 
regulations relating to halal products in Indonesia were not contained in a single law. There were 
rules applica ble to halal labelling of certain products716, verification of halalness of certain 
products717, and the entity in charge of such verification.718 It is our understanding that imported 
animal products have been required to bear a halal label since 1999719, and to be halal certified 
                                                
709 We note that in some instances it is the Member interested in expor ting who pays for the costs of the 
mission that will undertake the on -site evaluation. See, e.g. G/SPS/GEN/204/Rev.9/Add.1, paras. 121 -126. 
710 Brazil's first written submission, paras. 137 -138 and 285 -293; and second written submission, paras. 
179-180. 
711 See Indonesia's first written submission, paras. 329 -330 
712 See Indonesia's first written submission, paras. 342 -355; and opening statement at the first meeting 
of the Panel, paras. 117 -132. 
713 Food that conforms to Islamic law is described as halal, which is Arabic for permissible. Non -halal 
food is called haram . Haram food is not permitted to be consumed by Muslims. The halal requirements prohibit 
not only the consumption of pork but also, among others, the consumption of meat not slaughtered according 
to the  prescribed methods.  See Indonesia's first written submission, paras. 15 -18; and Fatwa 12/2009 on Halal 
Certification Standards (Exhibit IDN -104). 
714 See Indonesia's first written submission, paras. 36 -37, referring to Fatwa 12/2009 on Halal 
Certification S tandards (Exhibit IDN -104).  
715 Indonesia's first written submission, paras. 27 -37; and response to Panel question No. 43.  
716 Government Regulation No. 69/1999 on Food Labelling and Advertisement (GR 69/1999) (Exhibit 
IDN-74/IDN -88). 
717 Ministry of Religious A ffairs Decree No. 518/2001 (MoRA 518/2001) (Exhibit IDN -107).  
718 Ministry of Religious Affairs Decree No. 519/2001 On Halal Food Inspection Implementing Agencies 
(MoRA 519/2001) (Exhibit IDN -28/IDN -108).  
719 Articles 2(1) and 10(1) of GR 69/1999 (Exhibit IDN -74/IDN -88). WT/DS484/R  
 
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  since 2001.720 These requirements are also contained, in the same manner, in all three sets of 
legal instruments at issue in this dispute.721 
7.539.   On 17 October 2014, the Congress of Indonesia issued Law 33/2014 concerning halal 
product assurance .722  
7.540.   Article 4 of Law 33/2014 provides that products that enter, circulate, and are traded in 
Indonesia must be certified halal.723 
7.541.   Article 38 of Law 33/2014 provides that those business operators who have received a 
halal certification must include a halal l abel on: (a) the product's packaging; (b) a specific part of 
the product; and/or (c) a specific place of the product.724  
7.542.   Brazil does not take issue with the fulfilment of the halal certification and labelling, as 
required by Indonesia and explicitly recogni zes the importance of both these requirements.725 
7.543.   What Brazil takes issue with is the alleged discrimination in enforcing the halal 
requirements. Brazil refers to the fact that imported products must be labelled halal, which is 
controlled at the border. Braz il contrasts this with the uncontested fact that fresh chicken,  which 
constitutes a majority of the chicken  sold in traditional markets, is not required to  bear a halal 
label.726 
7.8.3   Whether Indonesia's enforcement of halal labelling requirements is inconsistent  
with Article III:4 of the GATT 1994  
7.544.   Brazil's bases its claim on two grounds. The first pertains to a transition period provided 
for in Law 33/2014, which according to Brazil, exempts domestic chicken from halal certification 
for a period of five years. Th e second ground, which Brazil raises, pertains to an exception from 
the labelling requirement for meat sold in small quantities.727 We address these in turn.  
7.8.3.1   Whether the enforcement of the grace period for the application of certain 
aspects of Law 33/2014 is inconsistent with  Article III:4  
7.8.3.1.1   Introduction  
7.545.   Brazil submits that Article 67 of Law 33/2014 provides for a five -year grace period 
regarding the halal certification obligation. According to Brazil, in practice, only domestic products 
can benefit from the gr ace period.728  
7.546.   In response, Indonesia argues that the grace period pertains to the entity  in charge of 
issuing the halal certification, rather than to certification itself. According to Indonesia, therefore, 
both domestic and imported products are subject t o the same substantive requirements regarding 
halal certification, including the obligation to obtain a halal certificate from the competent 
authorities.729 
                                                
720 Article 3(1)(b) of MoRA 518/2001 (Exhibit IDN -107).  
721 See Articles 7, 14(2), and 19 of MoA 139/2014; Articles 7(d), 18, and 19(e) of MoA 58/2015; and 
Articles 6(d), 17, and 18 of MoA 34/2016. See also Brazil's first written submission, fn 151  to para. 137; fn 267 
to para. 286; and fn 268 to para. 287.  
722 Law of Republic of Indonesia N. 33/2014 concerning Halal Product Assurance (Law 33/2014) (Exhibit 
BRA-46/IDN -5). 
723 Article 4 of Law 33/2014 (Exhibit BRA -46/IDN -5). 
724 Article 38 of Law 33/2014 ( Exhibit BRA -46/IDN -5). 
725 Brazil's first written submission, para. 139; opening statement at the first meeting of  the Panel, para. 
53; response to Panel question No. 45; and second written submission, paras. 173 and 185;  
726 See Brazil's first written submiss ion, para. 137.  
727 See Brazil's first written submission, para. 287. See also Brazil's response to Panel question No. 46.  
728 Brazil's first written submission, para. 287; and response to Panel question No. 44.  
729 Indonesia's opening statement at the first meeting of  the Panel, paras. 113 -115; response to Panel 
question No. 43; and second written submission, para. 156. See also Indonesia's response to Panel question 
No. 47.  WT/DS484/R  
 
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  7.547.   In addition, during the second substantive meeting, Indonesia argued that "the halal 
certification re quirement and the related five-year grace period fall outside of the Panel's terms of 
reference". According to Indonesia, Brazil's challenge is limited to another regulation regarding 
halal slaughtering and labelling, including the difference in treatment in the surveillance and 
implementation of halal labelling. Indonesia posits that, accordingly , Brazil's claim does not include 
challenges on halal certification.730 
7.8.3.1.2   Whether Brazil's claim regarding  the grace period provided in Article 67 of 
Law 33/2014 falls  within the Panel's terms of reference  
7.548.   In light of the foregoing , we will first address whether Brazil's claim that the grace period 
provided in Article 67 of Law 33/2014 is inconsistent with Indonesia's obligations under Article 
III:4 of the GATT 1994 is  within our terms of reference.  
7.549.   In section 7.1.2.2.1 above , we discuss the legal standard that the Panel should follow to 
determine whether a measure and a claim are within its terms of reference. We are guided by that 
standard when developing the following considerations. In addition, we recall that the Appellate 
Body has drawn a distinction between claims and arguments :  
By "claim " we mean a claim that the respondent party has violated, or nullified or 
impaired the benefit s arising from, an identified provision of a particular agreement. 
Such a claim of violation  must, as we have already noted, be distinguished from the 
arguments  adduced by a complaining party to demonstrate that the responding 
party's measure does indeed i nfringe upon the identified treaty provision.731  
7.550.   Section II.iv of Brazil's panel request indicates that Indonesia discriminates against chicken 
meat and chicken products imported from third countries vis-à-vis its domestic like products 
through different me asures. One of the measures identified therein is "the surveillance and 
implementation of halal slaughtering and labelling requirements".732 Brazil considers this measure 
to be inconsistent with Article III:4 of the GATT 1994 as it accords to imported produc ts less 
favourable treatment than that accorded to like domestic products.733 
7.551.   The measure at issue, thus, is the surveillance and implementation of halal slaughtering 
and labelling requirements and the claim is the inconsistency of this measure with Article III:4 of 
the GATT 1994.  
7.552.   As discussed in detail below, the parties disagree on the scope and meaning of the grace 
period for the application of Law 33/2014. Brazil submits that Article 67 exempts domestic chicken 
meat from the halal certification requiremen t with the consequence that it does not need to be 
labelled "halal" when offered for sale. We understand Brazil, thus,  to rely on its reading of Article 
67 as the reason why domestic chicken sold in markets is not labelled halal. In our view, Brazil's 
references to the grace period fall within  the category of arguments  made in order to develop the 
claim under Article III:4 of GATT 1994  in respect of the measure identified, namely 
"…implementation of halal…labelling requirements" . On this basis, we reject In donesia's view that 
the halal certification requirement and the related five-year grace period fall outside the Panel's 
terms of reference, and find that this reference is an argument developed by Brazil in support of a 
claim falling within our terms of re ference.  
7.8.3.1.3   Whether Article 67 of Law 33/2014 exempts domestic chicken from halal 
certification in a manner inconsistent with Article III:4  
7.553.   We recall that for a claim of violation of Article III:4 of the GATT 1994 to succeed the 
complainant must demonstrate t hat imported like products are treated less favourably compared 
to like domestic products. Brazil essentially argues that Article 67 of Law 33/201 4 exempts 
domestic chicken from halal certification, whereas it does not exempt imported chicken.   
                                                
730 Indonesia's opening statement at the second meeting of the Panel, para. 47.  
731 Appellat e Body Report, Korea – Dairy , para. 139.  (emphasis original; footnote omitted)  
732 Brazil's panel request, p. 6.  
733 Brazil's panel request, p. 7.  WT/DS484/R  
 
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  7.554.   We therefor e turn to examine whether Brazil's reading of Indonesia's relevant laws and 
regulations, in particular Article 67 of Law 33/2014, is correct. In assessing this matter, we need 
to determine the meaning of a number of provisions of Law  33/2014. As noted abov e, the 
Appellate Body has found that in determining the meaning of a domestic regulation, a Panel should 
undertake a holistic assessment of all relevant elements, starting with the text of the relevant 
provision.734 We will therefore begin our examination wi th the text of the relevant provision.  
7.555.   The grace period referred to by both parties is contained in Article 67 of Law 33/2014. This 
provision establishes:  
(1) Obligation of halal certification for Product that circulate and traded in the territory 
of Indon esia as intended in Article 4 come into effect 5 (five) years from the 
legislation of this Law.  
(2) Prior to the obligation of halal certification as intended in paragraph (1) is in 
effect, the type of Product which require halal certification is regulated  in stages.735 
7.556.   The first paragraph of Article 67 refers back to Article 4 of Law 33/2014. As seen above, 
this provision establishes that products that enter, circulate, and are traded in Indonesia must be 
certified halal.736  
7.557.   We observe that, read outside its context, on its face, Article 67 could indeed be 
understood to provide, as Brazil suggests, that certification is not required during the five -year 
transitional period.  
7.558.   However, as Indonesia submits, a number of other provisions in Law 33/2014, suggests a 
different reading. Law 33/2 014, among other things, sets up an institutional framework for halal 
product assurance. Such institutional framework includes the creation of the Halal Product 
Organizing Agency (BPJPH) and the recognition, by the BPJPH, of hala l examination agencies 
(LPH).737 
7.559.   According to Article 64 of Law 33/2014, the formation of BPJPH is intended to occur within 
the three years following the legislation of Law 33/2014.738 This provision suggests the need for a 
transitional period before the new i nstitutional framework is fully operative.  
7.560.   Moreover, Articles 59 and 60 of Law 33/2014 refer to the renewal and request of halal 
certificates before the formation of BPJPH. Article 60 is particularly relevant, because it establishes 
that "MUI still conduc ts its task in Halal Certification until BPJPH is formed".739 There are other 
provisions that regulate the transition before BPJPH is formed, referring to LPHs already 
recognized (Article 61), halal auditors already recognized (Article 62), and halal supervi sors of 
company already recognized (Article 63). In addition, Article  66 establishes that at "the time this 
Law is enacted, all Regulating Legislation that regulates regarding JPH is considered valid as long 
as it does not contradict with the provision in this Law" . 740 
7.561.   The foregoing, in our view, unequivocally confirms that, during the grace period, the 
obligation to be halal certified is still in place. We understand that such an obligation should be 
carried out according to the rules and regulations in for ce at the time of the approval of Law 
33/2014, namely, MoRA  518/2001 and 519/2001.  
7.562.   Hence, we consider Brazil's description of the meaning and scope of application of 
Indonesia's domestic regulation to be inaccurate. In our view, contrary to Brazil's submi ssion, the 
grace period provided in Article 67 of Law 33/2014 does not suspend the obligation for producers 
                                                
734 Appellate Body Reports, EU – Biodiesel (Argentina) , para. 6.156; and US – Countervailing and 
Anti-Dumping Measu res (China), para. 4.101.  
735 Article 67 of Law 33/2014 (Exhibit BRA -46/IDN -5). 
736 Article 4 of Law 33/2014 (Exhibit BRA -46/IDN -5). 
737 Articles 1, 5 and 6 of Law 33/2014 (Exhibit BRA -46/IDN -5). 
738 Article 64 of Law 33/2014 (Exhibit BRA -46/IDN -5). 
739 Article 60 o f Law 33/2014 (Exhibit BRA -46/IDN -5). 
740 Article 66 of Law 33/2014 (Exhibit BRA -46/IDN -5). WT/DS484/R  
 
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  of chicken products sold in Indonesia to obtain halal certification. Article  67, therefore, is not the 
reason for, and does not explain the absence of, halal labels on chicken sold in traditional markets.  
7.563.   Given our factual finding regarding the meaning of the five -year grace period set out in 
Article 67 of Law 33/2014, we consider that Brazil has failed to demonstrate the manner in which 
the five -year grace period set out in Article 67 of Law 33/2014 constitutes a violation of 
Article  III:4 of the GATT 1994.  
7.8.3.2   Whether the exemption from the halal labelling requirement for food directly 
sold and packed before the buyer in small number is inconsistent wit h Article III:4  
7.564.   We next turn to examine Brazil's second ground in support of its claim, namely that 
Indonesia discriminates against imported chicken products in respect of an exemption from the 
halal labelling requirement that applies to chicken directly s old to the consumer in small 
quantities.741 
7.565.   Brazil developed this argument in the course of the proceedings in response  to the 
following argument put forward by Indonesia. Referring to the absence of halal labels on chicken 
sold in traditional markets, Indon esia explained that by virtue of Article  63(b) of GR  69/1999, 
labels do not need to be applied on food products sold before  buyers.742  
7.566.   In reaction to this explanation from Indonesia, Brazil submits that exempting certain types 
of food from the halal labelli ng requirement epitomizes the discrimination that concerns Brazil.743 
In Brazil's view, imported previously frozen (thawed) chicken meat must also be allowed to be sold 
unpackaged and unlabelled before consumers.744 The difference in treatment between fresh 
chicken and imported frozen chicken, according to Brazil, amounts to discrimination.  
7.567.   We turn to examine the scope of the exemption from the obligation to bear a halal label 
foreseen in Indonesia's regulation applicable to certain food products and whether Br azil has made 
its case in this respect.  
7.8.3.2.1   Factual description of the e xemption of certain food products from bearing the 
halal label  
7.568.   As seen above, the requirement for halal products to bear a halal label is set out in 
Article  38 of Law 33/20 14.  
7.569.   Outside Law  33/2014, a number of relevant laws and regulations generally address 
labelling requirements, including halal labelling. Article 2(1) of GR  69/1999 establishes that 
anybody producing or importing packaged food into Indonesia for trading shall put labels on , in 
and or as part of food packages.745 Article 10(1) establishes that anybody producing or importing 
packed food into Indonesia for trading and declaring that food is permissible for Muslims, "shall be 
responsible for the truth of the statement and put the  information or word 'halal' on labels" .746 
7.570.   It is with reference to GR 69/1999 that Indonesia submits that certain categories of food 
products are exempted from labelling requirements, including halal labelling. In particular, 
Indonesia refers to Article  63(b) of GR  69/1999.747  
7.571.   Article 63 of GR 69/1999 provides:  
                                                
741 We note that this exe mption applies only to halal labelling . As Indonesia stresses, chicken sold in this 
manner, would still have to be halal. In this regard, see a lso Qatar's general comment in Qatar's third -party 
statement, para. 11.    
742 Indonesia's closing statement at the first meeting of  the Panel, para. 15; and second written 
submission, para. 155.  
743 Brazil's response s to Panel question No s. 143-144. 
744 Brazil' s response to Panel question No. 144.  
745 Article 2(1) of GR 69/1999 (Exhibit IDN -74/IDN -88). 
746 Article 10(1) of GR 69/1999 (Exhibit IDN -74/IDN -88). 
747 Indonesia's closing statement at the first meeting of  the Panel, para. 15; and second written 
submission, p ara. 155.  WT/DS484/R  
 
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  The provisions on labels and advertisements as meant in this government regulation 
shall not be effective for:  
a. food whose package is too small, so that it is impossible to contain all 
kinds of info rmation as meant in this government regulation;  
b. food directly sold and packed before buyers in a small number;  
c. food sold in a large amounts (bulk)748 
7.572.   Indonesia submits that this exemption is more specific than Article 38 of Law 33/2014 and 
applies to f resh chicken sold in traditional markets. In its most recent submissions, Brazil indicates 
that it agrees with Indonesia that Article  63(b) is more specific, and thus provides for an 
exemption to a specific category of products from the obligation to bear a halal label. Brazil's 
grievance is that in its view, the exemption does not apply to imported frozen chicken.  
7.8.3.2.2   Panel's analysis under  Article III:4  
7.573.   We therefore turn to consider whether the exemption to the labelling requirement set out 
in Article 63/199 9 results in less favourable treatment inconsistent with Article III:4.  
7.574.   As seen above, Brazil considers that imported previously frozen chicken meat that 
underwent thawing must also be allowed to be sold unpackaged and unlabelled before 
consumers.749 We understand  this argument to refer to  a de facto discrimination between fresh 
domestic chicken and frozen imported chicken .750 Brazil argues that "the restriction on imported 
products to be sold only packaged affects the conditions of competition" by: (i)  limitin g the 
manner by which imported products can be displayed to consumers; and (ii) preventing consumers 
from examining the product they intend to purchase.751 Moreover, Brazil argues that the fact that 
imported products have to bear a halal label imposes additi onal costs on Brazilian exporters.752 
7.575.   As discussed above753, an assessment pursuant to Article III:4 of the GATT 1994 requires 
the Panel to determine: (1) whether the imported and domestic products at issue are like 
products; (2) whether the measure at issue i s a "law, regulation, or requirement affecting their 
internal sale, offering for sale, purchase, transportation, distribution or use"; and (3) whether the 
imported products are accorded "less favourable" treatment than that accorded to like domestic 
produc ts.754  
7.576.   Furthermore, t he Appellate Body has indicated that "there must be in every case a genuine 
relationship between the measure at issue and its adverse impact on competitive opportunities for 
imported versus  like domestic products".755 According to the App ellate Body :  
[I]n determining whether the detrimental impact on competitive opportunities for like 
imported products is attributable to , or has a genuine relationship with , the measure 
at issue, the relevant question is "whether it is the governmental mea sure at issue 
that 'affects the conditions under which like goods, domestic and imported, compete 
in the market within a Member's territory'".756 (emphasis added)  
7.577.   In our assessment, given the facts as well as the nature of  Brazil's arguments, it is this 
question of whether there is a genuine relationship between the challenged measure and the 
                                                
748 Article 63 of GR 69/1999 (Exhibit IDN -74/IDN -88). 
749 Brazil's response to Panel question No. 144.  
750 See Appellate Body Report, US – Tuna II (Article 21.5 – Mexico) , paras. 7.28 -7.29 (regarding the 
manner in which a panel should assess a complain ant's claim of de facto  detrimental impact).  
751 Brazil's response to Panel question No. 144.  
752 Brazil's response to Panel question No. 145.  
753 See section 7.5.3.3.3.2  above.  
754 Appellate Body Report, Korea – Variou s Measures on Beef , para. 133.  
755 Appellate Body Report, Thailand – Cigarettes (Philippines) , para. 134.  See also Appellate Body 
Report, EC – Seal Products , para. 5.101.  
756 Appellate Body Report, EC – Seal Products , para. 5.10 5 (referring  to Appellate Body R eports, US – 
COOL , para. 270 (in turn referring to Appellate Body Report, Korea – Various Measures on Beef , para.  149)). WT/DS484/R  
 
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  adverse impact claimed by Brazil, that is at the forefront of our Article III:4 analysis, and must 
therefore be addressed first. As we see it, Article 63 of GR 69/1999 i s not the cause of Brazil's 
problem; rather, the detriment described above by Brazil, stems from and, therefore, is 
attributable  to requirements regulated elsewhere. Imported chicken products are packaged and 
labelled before they reach the (traditional) ma rket; the requirement to do so is laid down in other 
provisions of Indonesia's laws and regulations.757 The cost of labelling is already incurred at that 
point. Furthermore, imported chicken meat, because it is frozen, must be in cold storage when 
sold in tr aditional markets. That requirement, which we have examined under Article III:4 in 
section  7.5.3.1.1 above , is set out elsewhere, not in Article 63 of GR 69/1999. It is because of this 
requirement, not becaus e of Article 63 of GR 69/1999, that imported chicken meat cannot be put 
on display in the same manner as fresh chicken meat (to which the cold storage requirement does 
not apply). Finally, in our view, Article 63 of GR 69/1999 would apply if and when froze n chicken 
products, for example chicken cuts, are sold and individually packed in front of the buyer.758       
7.578.   Based on these considerations, we take the view that  there is no genuine relationship  
between that measure and what Brazil perceives as detrimental  impact on the competitive 
opportunities for imported chicken, namely, the difference in display and the cost of labelling. Put 
differently, that impact on the conditions of competition is not attributable to the measure at issue. 
Since we have found that there is no  genuine relationship between the challenged measure and 
the alleged  detrimental impact , we do not consider it necessary to return to the other elements of 
the test set out above.   
7.579.   We, therefore, consider that Brazil has not demonstrated that A rticle 63 of GR 69/1999 
provides de facto  less favourable treatment between fresh domestic chicken and frozen imported 
chicken, within the meaning of Article III:4 of the GATT 1994.  
7.8.4   Conclusion  
7.580.   On the basis of the foregoing, we consider that Brazil has fai led to demonstrate that 
Indonesia's implementation of its halal labelling requirements is inconsistent with Indonesia's 
obligations under Article III:4 of the GATT 1994.  
7.9  Individual measure 6: Transportation requirement  
7.9.1   Introduction  
7.581.   We turn to the last of the individual measures challenged by Brazil, which Brazil has 
described as a direct transportation requirement.759 The measure consists in a requirement, laid 
down in the relevant MoA regulation, that transportation shall be conducted "directly" from the 
country of origin to the port of discharge in Indonesia.  
7.582.   Brazil claims that the direct transportation requirement mandates that shipments cannot 
stop in transit at any port between the port of dispatch in Brazil and the port of destination in 
Indonesia.760 Brazil argues that this requirement is a quantitative restriction, in violation of Article 
XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture .761 
7.583.   Indonesia submits that Brazil wrongly interprets the concerned provision in the relevant 
MoA re gulation. According to Indonesia, its legal framework allows for imported goods to transit 
through ports located in countries other than those in the country of origin and the country of 
destination.762 
                                                
757 See e.g. Articles 7(d), 18, and 19 of MoA 58/2015; and Articles 6(d), 17, and 18 of MoA 34/2016.  
758 This could be the case, for exampl e, if frozen chicken cuts were imported in "bulk" and then sold 
individually at the market.  
759 Brazil's panel request, pp. 4 -5. 
760 Brazil's first written submission, paras. 60, 132 and 214.  
761 Brazil's first written submission, paras. 134 -135 and 216 -217; sec ond written submission, paras. 
218-222; and response to Panel question No. 139.  
762 Indonesia's first written submission, paras. 304 -310; and second written submission, paras. 148 and 
151. WT/DS484/R  
 
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  7.584.   In reaction to Indonesia's explanation of the direct tr ansportation requirement, Brazil 
argues that the "legal uncertainties generated by the murky language" of the relevant provision 
"amount to a quantitative restriction".763  
7.585.   As noted above, the relevant MoA regulation enacting, inter alia , the direct transpor tation 
requirement has been revoked and replaced twice since panel establishment. The following table 
sets out  the relevant provisions of the different sets of legal instruments underlying the direct 
transportation requirement as discussed in this report.  
 
Table 8 Relevant provisions regarding the d irect transportation requirement  
First set of legal 
instruments  Second set of legal 
instruments  Third set of legal instruments  
MoA 139/2014  
 
Art. 20  
(1) Transportation/shipment of 
carcas s, meat, and/or its 
processed as referred to  in 
Article 17 is conducted directly 
from the country of origin to 
the point entry within the 
territory of the Republic of 
Indonesia.  
… 
(3) Importation of carcass, 
meat, and/or its processed by 
way of transit is conducted in  
accordance with the Law and 
Regulation regarding animal 
quarantine.  MoA 58/2015  
 
Art. 20  
Transportation requirements of 
carcass, meat and/or the 
processed product thereof as 
referred to in Article 7 letter d 
shall be as follows:  
 
a. Conducted directly from the 
Country of Origin to the port of 
discharge within the territory of 
the Republic of Indonesia.  
… 
c. Transit during importation 
shall be carried out pursuant to 
the animal quarantine laws and  
regulations.  MoA 34/2016  
 
Art. 19  
The requireme nts of 
transportation/shipment of carcass, meat, 
offal and/or their processed products as 
referred to in Article 6 letter d are as 
follows:  
 
a. conducted directly from the Country of 
Origin to the port of entry within  
the territory of the  Republic of Indon esia 
… 
c. importation by way of transit is 
conducted in accordance with the laws 
and regulations  regarding animal 
quarantine;  
 
7.586.   As reflected in Table 8 above , the provisions enacting the direct transportation 
requirement are virtu ally identical from one legal instrument to the next . On this basis, we 
consider that the direct transportation requirement, as enacted through Article 19(a) of MoA 
34/2016 fall s within the Panel's  terms of reference and we thus have jurisdiction  to review  its WTO 
consistency . Our findings below, therefore, are relevant to any of the three enactments of the 
measure, including the most recent one. Brazil, in its most recent submissions, refers to the 
relevant provision in MoA 34/2016, namely Article 19(a). W e, therefore, do so as well.  
7.587.   We first examine whether the direct transportation requirement means what Brazil alleges 
it to mean, namely that it requires non -stop shipment. If we find that this is the case, we examine, 
whether it is inconsistent with Artic le XI of the GATT 1994 or Article 4.2 of the Agreement on 
Agriculture . If we find that the direct transportation requirement does not mean what Brazil alleges 
it to mean, but allows for transit, as argued by Indonesia, we go on to consider the second issue  
raised by Brazil, namely that the direct transportation requirement is inconsistent with Article XI of 
the GATT 1994 and Article 4.2 of the Agreement on Agriculture , due to its "murky language".  
7.9.2   Whether the direct transportation requirement is inconsisten t with Article  XI of 
the GATT 1994 and Article 4.2 of the Agreement on Agriculture  
7.588.   As noted above, Brazil initially developed its claim by arguing that the direct transportation 
requirement, enshrined in Article 19(a) of MoA 34/2016, prohibits the possibil ity of goods shipped 
from Brazil to Indonesia from being imported into Indonesia, if they have stopped in transit in a 
third country.764 
                                                
763 Brazil's second written submission, para. 222. See also response to  Panel question No. 139.  
764 Brazil's first writt en submissi on, paras. 132 and 214.  WT/DS484/R  
 
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  7.9.2.1   Whether the direct transportation requirement mandates non -stop shipment 
without transit or transhipment  
7.589.   The first step of our analysis is therefore to ascertain the meaning of the direct 
transportation requirement in Article 19(a) of MoA 34/2016.  
7.590.   The Appellate Body has found that in determining the meaning of a domestic regulation, a 
panel should undertake a holistic asses sment of all relevant elements, starting with the text of the 
relevant provision.765 We will therefore begin our examination with the text of the relevant 
provision.  
7.591.   Brazil understands that the term "conducted directly" in Article 19(a), means that if the 
transportation is not direct, or, if by any reason, a stop in a third country or port during the 
transportation is necessary before the arrival at the port of destination, then the products could 
not be imported into Indonesia.766  
7.592.   Indonesia explains that sub -paragraph (a) of Article 19 should be read together with the 
other paragraphs of this article. In particular, Indonesia refers to sub -paragraph (c) in the same 
provision, according to which "importation by way of transit" must be conducted "in accordance 
with the laws and regulations regarding animal quarantine".767 Indonesia also refers to specific 
provisions of the relevant laws and regulations (Law  16/1992 and GR  82/2000) in support of its 
reading that Article 19(a) does not prohibit transit.768 Indonesia furthermore  explains that a 
violation of the direct transportation requirement is limited to a specific situation, namely when 
goods originating in one country are imported into a third country and then re -exported to 
Indonesia.769 
7.593.   We note that the text of Art icle 19(a), read in isolation from other provisions of 
MoA 34/2016, could indeed be understood, as argued by Brazil, to indicate that transportation 
must be non -stop from the port of origin in Brazil to the port of destination in Indonesia. However, 
the te xt of paragraph (c) is explicit in referring to "importation by way of transit". This provision 
clearly indicates that the importation of goods is allowed even if it occurs after such goods stopped 
in transit on their journey from the port of origin in Bra zil to the port of destination in Indonesia. 
The text of paragraph  (c) requires that when this happens, transit should be conducted in 
accordance with animal quarantine laws and regulations. Indonesia has pointed to Law 16/1992 
concerning Animal, Fish and Plant Quarantine and to GR 82/2000 on Animal Quarantine. Both 
instruments address, inter alia , the quarantine treatment of shipments of animal products (as 
potential carriers of animal pests and diseases) arriving in Indonesia, which have stopped in third 
country ports on the way.770 GR 82/2000 specifically defines "transit" as a "temporary stop of 
transportation means in a harbour during their journey that brings in animal, material derived 
from animal, animal product material and other thing[s], before arri ving in the designated 
harbour" .771 To us , these provisions unequivocally acknowledge that animal products shipped from 
Brazil to Indonesia can be imported even if they transit through ports in third countries.  
7.594.   We further note that the MoA Import Recommendat ion template contains a field on 
transit.772 In our view, the inclusion of this field in the MoA Import Recommendation template 
suggests that an importer may indicate the port or ports of transit of the imported products, and 
that transit is therefore contem plated and allowed.  
                                                
765 Appellate Body Reports, EU – Biodiesel (Argentina) , para. 6.156; and US – Countervailing and Anti -
Dumping Measures (China) , para. 4.101.  
766 Brazil's first written submission , paras. 132 and 214.  
767 Indonesia's first written submission, para. 305; response to Panel question No. 39; and second 
written submission, para. 151. We recall that Indonesia explains that the term "direct" may be used in the 
same manner as it is used in the airline  industry, where there is a distinction between "direct " and "non-stop" 
flights. See Indonesia's second written submission, para. 151 . 
768 See Indonesia's first written submission, paras. 306 -308; and second written submission, para. 148. 
See also Indonesia's responses to Panel question Nos. 41 and 42, where Indonesia explains the relationship 
between these legal instruments and Indonesia's import licensing regime.  
769 Indonesia's response to Panel question No. 39. See also Indonesia's response to Pan el question No. 
137. 
770 Indonesia's first written submission, paras. 306 -308; and second written submission, para. 148.  
771 Article 1(8) of GR 82/2000 (Exhibit IDN -78). We note that this definition resembles that of "transit" 
as set out in Article V(1) of the  GATT 1994.  
772 Indonesia's second written submission, para. 151 (referring to Format I in MoA 58/2015  (Exhibit 
BRA-01/IDN -24), p. 27.  WT/DS484/R  
 
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  7.595.   Indonesia's reading is further corroborated by evidence on record. Indonesia submitted to 
the Panel a Bill of Lading dated 25 April 2016 and an Import Notification dated 24 May 2016, both 
of which demonstrate that a shipment of frozen boneless beef from Australia transited through 
Singapore before arriving at Tanjung Priok in Indonesia.773 Indonesia also submitted to the Panel 
an MoA  Import  Recommendation for beef from New Zealand, which has the field for transit filled 
out, indicating "S ingapore Container Terminal".774 This evidence supports Indonesia's assertion 
that its authorities allow the import of animal products that transit through third -countries , in a 
manner consistent with quarantine laws and regulations , before getting to Indone sia.  
7.596.   Brazil furthermore  posits that Indonesia's description of how the direct transportation 
requirement operates, implies that transhipment is excluded from Indonesia's definition of 
transit.775 Brazil has not put forward any evidence in support of this vi ew. It is our understanding 
that transhipment is the process through which the cargo is moved from one ship onto another.776 
Transhipment is, therefore, a process, which may or may not happen during transit as defined in 
the above government regulation. Sinc e transit is allowed, as we established, transhipment is 
necessarily also allowed subject to quarantine laws and regulations.  
7.597.   On the basis of the foregoing, we disagree with Brazil's view that a plain reading of 
Article  19(a) of MoA 34/2016 does not suppor t the conclusion that transit is allowed by Indonesian 
authorities.777 We have read this provision together with other provisions in Indonesia's laws and 
regulations, and come to the conclusion that transit  (including transhipment)  is allowed.  
7.598.   We consider th at Indonesia's representations support our own reading of Article  19(a), and 
we attach importance to Indonesia's official explanation of this provision.778 
7.599.   We, therefore, conclude that the direct transportation requirement, as enshrined in 
Article  19(a) of M oA 34/2016, allows importation into Indonesia of goods transiting through 
third-country ports, including those that involve transhipment.  
7.600.   Thus, contrary to what Brazil argues, the direct transportation requirement does not 
prohibit imported products from e ntering Indonesia after transiting through ports in third 
countries. To that extent, we consider that Brazil has failed to demonstrate how this measure 
constitutes a violation of Article XI of the GATT 1994 and Article 4.2 of the Agreement on 
Agriculture . 
7.9.2.2   Whether the meaning of the direct transportation requirement is so unclear as 
to constitute an import restriction inconsistent with Article XI of the GATT 1994 and 
Article 4.2 of the Agreement on Agriculture  
7.601.   Having established that the direct transportatio n requirement does not mean what Brazil 
alleges and therefore does not violate Article XI of the GATT 1994 and Article 4.2 of the Agreement 
on Agriculture , we turn to Brazil's second point. We recall that Brazil, in reaction to Indonesia's 
explanation of t he direct transportation requirement, argues that even if transit was allowed, the 
"murky" language in Article 19( a) of MoA  34/2016 creates legal uncertainties that amount to a 
quantitative restriction.779 
                                                
773 Indonesia's opening statement at the first meeting of the Panel, para. 133 (referring to Bill of Lading 
dated 25 April 20 16 and Import Notification dated 24 May 2016 (Bill of Lading and Import Notification of 2016) 
(Exhibit IDN -79). 
774 Indonesia's response to Panel question No. 40 (referring to Import Recommendation by the Minister 
of Agriculture for beef from New Zealand in December 2015 (MoA Recommendation for beef) (Exhibit IDN -
88)). 
775 Brazil's second written submission, para. 219; and response to panel question No. 139.  
776 Transhipment is defined in Chapter 2 of Annex E of the International Convention on the Simplification 
and Harmonization of Customs Procedures (Revised Kyoto Convention) as a "Customs procedure under which 
goods are transferred under Customs control from the importing means of transport to the exporting means of 
transport within the area of one Customs offi ce which is the office of both importation and exportation" . 
(Available at: http://www.wcoomd.org/en/topics/facilitation /instrument -and-
tools/conventions/pf_revised_kyoto_conv/kyoto_new/spane.aspx , last visited on 26 January 2017).  
777 Brazil's second written submission, para. 218.  
778 See Panel Repo rt, US – Section 301 Trade Act , paras. 7.118 -7.126.  
779 Brazil's second written submission, para. 222.  WT/DS484/R  
 
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  7.9.2.2.1   Whether Brazil's claim that the legal uncertainties arising from the "murky" 
language in Article 19( a) of MoA 34/2016 amount to a quantitative import restriction 
falls within the Panel's terms of reference  
7.602.   Noting that it is  our responsibility , even if not raised by the parties, to examine issues that 
go to the root of our jurisdiction780, we asked both parties at the second substantive meeting for 
their views on whether this particular claim was within the Panel's terms of reference.781  
7.603.   In its response , Brazil argues that the characterization of the direct tran sportation 
requirement as a quantitative restriction falls within the panel request.782 Indonesia submits that 
the direct transportation requirement is the measure at issue, and therefore, the claim pertaining 
to the legal uncertainties arising from the murk y language of Article  19(a) goes beyond the Panel's 
terms of reference.783 
7.604.   Pursuant to Article 7.1 of the DSU, a panel's terms of reference are governed by the 
panel  request.784 Article 6.2 requires that a panel request: (1) identifies the specific measures at  
issue, and (2) provides a brief summary of the legal basis of the complaint (or the claims) 
sufficient to present the problem clearly.785  
7.605.   On its face, Brazil's panel request identifies the measure at issue as the direct 
transportation requirement, which co nsists of "restrictions on the transportation of imported 
products … by requiring direct transportation from the country of origin to the entry points in 
Indonesia" .786 The panel request further explains that this measure is maintained through 
Article  20(1) of MoA  139/2014787 (currently reproduced in Article 19(a) of MoA  34/2016).  
7.606.   Brazil's panel request has identified the direct transportation requirement as the 
requirement contained in the concerned provision of the relevant MoA regulation. It is this 
provisi on that Brazil  interprets to mean "non -stop" transport resulting in a violation of Article XI:1 
of the GATT 1994 and Article 4.2 of the Agreement on Agriculture . It is also this provision that 
Brazil  now alleges to create uncertainty in a manner inconsiste nt with Article XI:1 and Article 4.2 
of the Agreement on Agriculture . In our view, therefore, the description of the measure as "direct 
transportation requirement" in the panel request is broad enough to allow for different arguments 
on why there is incons istency with Article  XI and Article 4.2. We consider "non -stop" to be one 
such argument and "murky language" to be another. We recall that the Appellate Body has 
distinguished between claims and arguments, pointing out that parties do not need to develop 
their arguments in the panel request, but may do so in their submissions.788 On that basis, we 
have the authority to consider Brazil's argument.  
7.9.2.2.2   Whether the language in Article 19(a) of MoA 34/2016 amount s to an  
inconsisten cy with Article  XI:1 of the GATT 199 4 and Article  4.2 of the Agreement on 
Agriculture  
7.607.   We turn to Brazil's argument that the murky language in Article 19(a) of MoA  34/2016 
constitutes a trade -restriction.  
                                                
780 Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), paras. 36 and 53.  
781 See Panel question No. 139.  
782 Brazil's response to Panel question No. 139.  
783 Indonesia's response to Panel question No. 139.  
784 Appellate Body Repor t, US – Carbon Steel , para. 124. See also, Appellate Body Report s, Argentina – 
Import Measures , para. 5.11.  
785 Appellate Body Reports, China – HP-SSST (Japan)  / China – HP-SSST (EU) , para. 5.12.  
786 Brazil's panel request, pp. 4 -5. 
787 Ministry of Agriculture R egulation 139/Permentan/PD/410/12/2014 (MoA 139/2014) (Exhibit BRA -
34). 
788 We recall that the Appellate Body has distinguished claims from arguments, in the following terms:  
Claims, which are typically allegations of violation of the substantive provisions  of the WTO 
Agreement , must be set out clearly in the request for the establishment of a panel. Arguments, 
by contrast, are the means whereby a party progressively develops and supports its claims. 
These do not need to be set out in detail in a panel reque st; rather, they may be developed in 
the submissions made to the panel.  
Appellate Body Report, Dominican Republic – Import and Sale of Cigarettes , para. 121.  WT/DS484/R  
 
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  7.608.   In support of this claim, Brazil refers to the findings of the panels in Colombia – Ports of 
Entry  and Argentina – Import Measures . In particular, Brazil recalls that these panels have 
acknowledged that a measure constitutes a quantitative restriction when it creates uncertainties 
and affects investment plans, restricts market access for imp ort, makes importation prohibitively 
costly, creates uncertainty as to an importer's ability to import, and more generally has an 
implication on the competitive situation of an importer.789  
7.609.   We note that neither of these cases addressed the issue of legal un certainty potentially 
created through "murky language". In Colombia – Ports of Entry the measure at issue was a 
limitation on the ports of entry for imports. In setting out and summarizing the case law 
supporting a broad reading of the concept of "quantita tive restrictions" in Article XI, that panel also 
referred to measures creating uncertainties or affecting investment plans as falling in that 
category.790 In Argentina – Import Measures , the measure at issue was an import procedure 
which, in the panel's vie w created "uncertainty by conditioning an applicant's ability … upon 
compliance with an unidentified number of requirements" .791 In both these cases the trade -
restrictive effects found to constitute a violation of Article XI were a result of the measure as such. 
Thus, in our view, these two cases reaffirm that a panel may establish what the content of a 
measure is and determine whether such content causes uncertainty that amounts to an import 
restriction under Article XI.  
7.610.   In this dispute, the content of the measure as such,  as understood by the Panel (see 
above) has not been shown to have any trade -restrictive effect. The uncertainty that Brazil refers 
to, is notably not one that we experienced while carefully reading the relevant provision in its 
context. Ne ither has Brazil submitted any evidence that would demonstrate that such uncertainty 
exists or is experienced by its exporters.792 Thus, while it is conceivable that a Member could 
adduce evidence that demonstrates that the measure's drafting causes legal un certainty (e.g. 
through other laws and regulations or evidence of its application)793, no such evidence has been 
presented here. We, therefore, leave open the question, whether, had such uncertainty been 
demonstrated, this could amount to a "quantitative res triction" within the meaning of Article XI.  
7.9.3   Conclusion  
7.611.   On the basis of the foregoing, we conclude that Brazil has failed to demonstrate  that the 
direct transportation requirement , as enacted through Article  19(a) of MoA 34/2016 , is 
inconsistent with Articl e XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture .  
7.10  Claims relating to the alleged general prohibition  
7.10.1   Introduction  
7.612.   Having examined the individual measures that Brazil challenges, we now turn to examine 
the alleged general prohibition . We recall that Brazil describes this measure as an unwritten 
measure.794 Brazil raises claims of violations of Article XI of the GATT 1994 and Article 4.2 of the 
Agreement on Agriculture .  
7.613.   As seen above, Indonesia requested the Panel to find that the alleg ed measure is not 
within its terms of reference. Our preliminary ruling, which rejects this request, is set out in 
section 7.1.2.2.2 above . Indonesia further submits that Brazil has not demonstrated the existence 
of this mea sure.795 In the alternative, Indonesia contends that Brazil has failed to prove that the 
measure violates Article 4.2 of the Agreement on Agriculture  or Article  XI of the GATT 1994.796   
                                                
789 Brazil's second written submission, para. 222.  
790 Panel Report, Colombia – Ports of Entry , para. 7.240.  
791 Panel Report s, Argentina – Import Measures , para. 6.468.  
792 One could, for example, think of contradictory advice received from Indonesian authorities.  
793 See Appellate Body Report, EU – Biodiesel , para. 6.156 (referring to the evidentiary elements that a 
complainant may submit to support its understanding of the meaning of municipal law).  
794 See e.g. Brazil's comments on Indonesia's request for preliminary ruling, paras. 17, 19, and 28;  
opening statement at the first meeting of the Panel, para. 11;  and second written submission, para. 2.  
795 Indonesia's first written submission, paras. 101 and 109.  
796 Indonesia's first written submission, paras. 118 , 124,  125, 127, and 128 . WT/DS484/R  
 
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  7.614.   As is well established, any act or omission attributable to a WTO Member can be 
challenged as a measure under the WTO dispute settlement system.797 Such measure does not 
necessarily have to be expressed in written form or laid down in a legal instrument, but may be 
unwritten instead.798  
7.615.   The parties disagree on whether Brazil has e stablished that the unwritten measure it 
describes exists. Our task, therefore, requires that we first assess  whether Brazil has 
demonstrated the existence of the alleged unwritten measure. We address the claims of violation 
made by Brazil only if we find that the alleged unwritten measure exists.   
7.616.   In undertaking  our task we recall the legal standard applicable to ascertaining the 
existence of an unwritten measure. As the Appellate Body explained, a complaining party will need 
to demonstrate , cumulatively,  (1) that a measure is attributable to the responding Member, (2) its 
precise content, and (3) other elements depending on whether it is of general and prospective 
application or of a different nature.799 We note, furthermore,  that Brazil asserts the existen ce of an 
unwritten single measure that results from the combined operation of six individual measures. 
Consequently, we consider applicable the observation by the Appellate Body in Argentina – Import 
Measures  that "[a] complainant challenging a single meas ure composed of several different 
instruments will normally need to provide evidence of how the different components operate 
together as part of a single measure and how a single measure exists as distinct from its 
components".800 
7.617.   We will first summarize  how Brazil has described the measure. We then summarize the 
evidence that Brazil has submitted to demonstrate the existence of this measure before turning to 
our own assessment.   
7.10.2   Brazil's description of the measure  
7.618.   Brazil argues that the measure at issue in this dispute is an unwritten overarching measure 
that results from the combined interaction of several individual measures "conceived to implement 
an official trade policy based on the overriding objective of restricting imports to protect domestic 
product ion".801 Brazil asks the Panel to consider this measure as a single, self -standing 
measure.802   
7.619.   According to Brazil, Indonesia has put in place a set of measures "founded on the premise 
that the importation of animal products should be made only if domestic a nimal production were 
insufficient to fulfil the needs f or the people's  consumption" . Brazil considers this to result in a 
de jure and a de facto  prohibition on the importation of chicken meat and chicken products from 
Brazil.803 
7.620.   Brazil asserts that the prec ise content of the unwritten measure is a general ban on the 
importation of chicken meat and chicken products from Brazil, which results from, and is 
implemented through, the combined operation of written regulations and procedures (and one 
omission804) conc eived to protect Indonesia’s domestic poultry industry.805 According to Brazil, the 
                                                
797 Appellate Body Report, US – Corrosion -Resistant Steel Sunset Review , para. 81 . 
798 Appellate Body Report, US – Zeroing (EC) , para. 192.   
799 Appellate Body Report s, Argentina – Import Measures , para 5.108.  On the basis of the Appellate 
Body's findings in Argentina – Import Measures , we disagree with Brazil's view that the Panel should n ot 
examine this element.  
800 Appellate Body Report s, Argentina – Import Measures , para 5.108.  On the basis of the Appellate 
Body's findings in Argentina – Import Measures , we disagree with Brazil's view that the Panel should not 
examine other elements relati ve to specific nature of the measure.  
801 Brazil's first written submission, paras. 75 -76. See also opening statement at the first meeting of the 
Panel, para. 11; and second written submission, paras. 11 and 13 . 
802 Brazil's  first written submission, para. 75;  opening statement at the first meeting of the Panel, para. 
9; response to Panel question No. 5(a)(iii) ; and second written submission, para. 2 . 
803 Brazil's first written submission, para. 76.  
804 Brazil refers to the undue delay in examining and approving Br azil's proposal for a  veterinary  health 
certificate  for poultry. S ee section 7.7 above.  
805 Brazil's response to Panel question No. 5(a)(i).  See also Brazil's first written submission, para. 75; 
and opening statement at the first  meeting of the Panel, para.  11. WT/DS484/R  
 
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  unwritten measure has existed at least since 2009806, applies to imports from any country, and 
covers all chicken meat and chicken products.807  
7.621.   Brazil  considers  that the general  ban is independent and different from its constitutive 
elements and therefore will not cease to exist even if one or more of its elements is altered, 
replaced or eliminated. According to Brazil, the unwritten measure responds to an overriding 
objective th at goes beyond the specific impact of each constitutive element and results from the 
combined operation of the measures.808 Brazil describes this measure in different ways in its 
submissions.809 Brazil submits that whether the general ban is qualified as a rul e or norm of 
general and prospective application, an ongoing conduct, or a concerted action or practice, does 
not change the nature of the measure itself or the evidentiary threshold necessary to demonstrate 
its existence.810 
7.622.   Brazil emphasizes that even if a n element of the alleged general prohibition is found not to 
be WTO-inconsistent , it does not mean that  the general prohibition itself is not  WTO-
inconsistent.811   
7.623.   Based on the  description of the measure by Brazil, the unwritten measure has three 
relevant f eatures: (a)  it consists of several individual measures; (b) it derives from and is 
implemented through the combined operation of several individual measures, resulting in a 
general ban on chicken meat and chicken products , and (c) it was conceived for the  fulfilment of a 
single overriding objective.812 We set out in more detail below Brazil's description of these 
features.  
7.10.2.1   Individual measures as constitutive elements  
7.624.    Brazil describes six individual measures as constitutive elements of the alleged general 
prohibition.813 Brazil emphasizes that it is not excluding the possibility that other measures exist or 
may be adopted in the future that could also form part of the constitutive elements of the alleged 
general prohibition.814  
7.625.   The six individual measures are as  follows:  
a. positive list requirement;  
b. domestic food production (including "staple food"815, which encompasses chicken meat 
and chicken products) and national food reserve are prioritized over food import, which 
is only authorized as an exception, when domesti c food supply is not considered 
"sufficient" by the government;  
c. imports of essential and strategic goods, which include chicken and chicken products 
may be prohibited or restricted and prices may be controlled by the Indonesian 
government. Thus, import and  export operations may be postponed by the Minister of 
                                                
806 Brazil's response to Panel question No. 5(a)(i).  See also Brazil's first written submission, para. 75; 
and opening statement at the first meeting of the Panel, para.  11. 
807 Brazil refers to chicken meat and chicken product s from the species Gallus domesticus, commonly 
classified on HS Codes 0207.11, 0207.12, 0207.13, 0207.14 and 1602.32. See Brazil's response to Panel 
question No. 5(a)(ii).  
808 Brazil's response to Panel question No. 5(a)(iii).  
809 See Brazil's first written su bmission, para. 172; opening statement at the first meeting of the Panel, 
para. 9; response to Panel question No. 5(c); and second written submission, para. 10.  
810 Brazil's response to Panel question No. 5(c).  
811 Brazil's response to Panel question No. 6.  
812 Brazil's response to Panel question No. 5(a)(i).  
813 Brazil's panel request, p. 2 and first written submission, para. 76. See also the discussion in our 
preliminary ruling in section 7.1.2.2.2  above, concerning whether the allege d general prohibition, as described 
in Brazil's first written submission, is within the Panel's terms of reference.   
814 Brazil's response to Panel question No. 69.  
815 According to Article 1.15 of Law 18/2012 ("Food Law"), the term "staple food" means "[…] f ood that 
is intended as the main daily food according to local potential reso urces and wisdom". See Exhibit BRA -
31/IDN -3. WT/DS484/R  
 
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  Trade during a force majeure event and if allowed to enter into Indonesia, their effective 
importation would be subject to the discretion of the Minister of Trade;  
d. intended use requirement;  
e. undue dela y in examining and approving the health certificates for chicken meat and 
chicken products proposed by Brazil since 2009; and  
f. restrictions on importation through Indonesia's import licensing regime.  
7.626.   As noted previously, Brazil has challenged four of these six measures separately, namely 
the positive list requirement, the intended use requirement, undue delay, and import licensing 
requirements  (letters, a, d, e, and f above). We have examined these four measures in sections 
7.4 (positive list requirement), 7.5 (intended use requirement), 7.6 (import licensing 
requirements), and 7.7 (undue delay)  above . The two measures not challenged separately are a 
so-called "self -sufficiency requirement"(letter b above) and "a restriction on imports of essential 
goods"(letter c above). Brazil's descriptions of these measures as well as Indonesia's comments on 
these descriptions are as follows.  
7.10.2.2   Self-sufficienc y requirement  
7.627.   Concerning the self -sufficiency requirement, Brazil submits that it allows for , or requires, 
imports of animal and animal products to be restricted when the Indonesian authorities deem that 
domestic production is sufficient.816 In describing th is requirement, Brazil refers to relevant 
provisions of three different laws.  
7.628.   First, Brazil refers to Article  36(4) of Law 18/2009. That provision is currently contained in 
Article 36B of Law 41/2014817, and reads:  
Import of Livestock and Animal based produ cts from overseas to the territory of 
Republic of Indonesia shall be made if the production and supply of Livestock and 
Animal based products in the home country is not yet sufficient to meet the domestic 
consumption.818 
7.629.   Second, Brazil refers to Article 36 L aw 18/2012, and asserts that in the context of 
paragraph 2 chicken meat and chicken products are considered as "staple food".819 The provision 
reads as follows:  
(1) Food Import can only be implemented if domestic Food Production is not sufficient 
and/or cann ot be produced domestically.  
(2) Staple Food Import can only be implemented if domestic Food Production and 
National Food Reserve are not sufficient.  
(3) Sufficiency of domestic Staple Food Production and Government Food Reserve is 
determined by minister o r government institution with the task of executing 
governmental orders in the Food sector.820  
7.630.   Third, Brazil refers to Article 30(1) of Law 19/2013 which states:  
                                                
816 Brazil's first written submission, paras. 80 - 83; and response to Panel question No. 5(b).  
817 Article 36(4)  is worded in a slightly d ifferent manner  to Article 36B. Article 36(4) states : 
Article 36  
… 
 (4) The import of animals, livestock and animal products from abroad may be allowed if 
domestic production and supply of animals or livestock is not sufficient for the local community.  
Article 36(4) of Law of the Republic of Indonesia Number 18/2009 on Husbandry and Animal Health 
(Law 18/2009) (Exhibit BRA -29/IDN -1). 
818 Law 41/2014 (amending 18/2009) (Exhibit BRA -30/IDN -2). 
819 Brazil's first written submission, fn 97 to para. 82. Indonesia's first written submission, para. 38.  
820 Law 18/20 12 (Exhibit BRA -31/IDN -3). WT/DS484/R  
 
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  Every Person is prohibited from importing Agricultural Commodities when the 
availability of dom estic Agricultural Commodities is sufficient for consumption and/or 
Government food reserves.821 
7.631.   Indonesia contests Brazil's factual description of this self -sufficiency requirement. 
Indonesia submits that "self -sufficiency is a general principle described i n some provisions of some 
of Indonesia's laws, and is commonly understood to relate to food security".822 Indonesia contends 
that "this principle has not had any practical effect on the importation of chicken into 
Indonesia".823 
7.632.   As discussed further below, Bra zil also refers to the self -sufficiency requirement as the 
overriding objective of the alleged general prohibition.  
7.10.2.3   Restrictions on imports of essential goods  
7.633.   Concerning the "restrictions on the importation of essential goods", Brazil submits that 
certain provisions of Law 7/2014 allow Indonesian authorities to impose additional restrictions on 
the importation of "essential goods", conferring a large margin of discretion on them.824 Brazil 
stresses that the term "essential goods" as defined in Law 7/2014, inc ludes "chicken meat and 
chicken products".825 Indonesia confirms this point.826    
7.634.   Brazil identifies the following provisions of Law 7/2014 as relevant to its claims827: 
a. Article  25(1), which states:  
The Government and Local Government to control the availability  of basic needs goods 
and / or important items in the entire territory of the Republic of Indonesia in 
sufficient quantity, good quality, and affordable prices.  
b. Article 26(3), which states:  
In order to guarantee the supply and stabilize prices of basic nee ds goods and 
essential items, the Minister set a price policy, stock management and logistics, as 
well as the management of Export and Import.  
c. Article 38, in particular, paragraphs (1) and (4), which read in relevant part:  
(1) The Government shall regulate  the activities of foreign trade through policies and 
control in the field of Export and Import.  
… 
(4) Foreign Trade Control include:  
d. licensing;  
e. Standards; and  
f. prohibition and restriction.  
                                                
821 Law 19/2013 (Exhibit BRA -33). We note that neither Brazil's panel request nor the section on legal 
arguments in Brazil's first written submission refers to Law 19/2013.  
822 Indonesia 's first written submission, para. 12.  See also Indonesia's response to Panel question No. 
10. 
823 Indonesia's first written submission, para. 92.  See also Indonesia's responses to Panel question Nos. 
10 and 11.  
824 Brazil's first written submission, paras. 84 -86. 
825 Brazil's first written submission, fn 99 to para. 84, referring to  Law of the Republic of Indonesia 
Number 7/2014 concerning trade,  Explanatory notes to Article 25  (Law 7/2014) . (Exhibit BRA -32). 
826 Indonesia's response  to Panel question No. 4.  
827 Law 07/2014 (Exhibit BRA -32). See Brazil's first written submission, para. 55.  WT/DS484/R  
 
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  7.635.   According to Indonesia, the qualification of products as "essent ial goods" does not affect 
the ability of importers from other countries to import these products into Indonesia.828 In support 
of this argument Indonesia cites beef as an example (also identified as an "essential good") and 
argues that beef is allowed to be  imported into Indonesia.829 As regards Articles 26(3) and 38, 
Indonesia essentially does not deny that these provisions provide a legal basis to regulate imports, 
but submits that "no MoA Import Recommendation or MoT Import Approval has ever been denied 
on the basis of [the above ] provisions".830     
7.10.2.4   Combined operation  
7.636.   The second feature of the alleged unwritten measure is that it "derives from and is 
implemented through the combined operation" of the individual measures.831 Brazil asserts that 
the ban on import s of chicken products is not just an effect, but the intended result of "an 
unwritten measure adopted by Indonesia".832 According to Brazil, it is the "expected joint 
operation" of these measures, that constitutes the self -standing, independent measure.833 
7.637.   In terms of how the individual measures operate together, Brazil explains that "each of 
these different components creates an additional layer of protection of Indonesia's market, 
reinforcing a maze of restrictions that, combined, prevent imports of chicken m eat and chicken 
products and serves to implement Indonesia's self -sufficiency policy".834 Furthermore, Brazil refers 
to the different elements as operating either to decrease the attractiveness of Indonesia's market 
or to increase costs and risks  for exporte rs.835 Brazil argues that "put together, these different 
layers [of trade -restrictiveness] form a thick, virtually impenetrable barrier to imports  of any 
amount of chicken meat and chicken products ".836   
7.638.   Brazil explains that "[a] s currently formulated, the si ngle operation of any of the different 
components identified by Brazil is capable of seriously limiting the importation of Brazilian chicken 
into the Indonesian  market. Together they work as a general ban, which results in graver 
consequences to internatio nal trade. It follows that, even if some of these individual elements 
could be altered, replaced or removed, the 'overarching' import ban would still be in place".837  
7.10.2.5   Overriding objective  
7.639.   The third feature of the alleged unwritten measure according to Brazi l, is that the 
individual measures that operate together to create the unwritten measure are all "conceived to 
implement an official trade policy based on the overriding objective of restricting imports to 
protect domestic production".838 Brazil also refers to this objective as an official policy of self -
sufficiency.839 
7.640.   The overriding objective of restricting imports to protect domestic production is, according 
to Brazil, the "glue" that binds together all the individual components of the general ban and 
inform s its implementation.840 Brazil explains that "as long as the underlying official trade policy of 
restricting imports to protect domestic production remains in place" the general prohibition would 
still be in force.841  
                                                
828 Indonesia's response to Panel question No. 4.  
829 Indonesia's response to Panel question No. 4.  
830 Indonesia's response to Panel question No. 4.  
831 Brazil's response to Panel questio n No. 5(a)(i).  
832 Brazil's response  to Panel question No. 5(a)(iv).  
833 Brazil's response to Panel question No. 5(a)(iv).  
834 Brazil's response to Panel question No. 5(a)(vi).  
835 Brazil's second written submission, para. 13.  
836 Brazil's second written submission,  para. 13.  
837 Brazil's response to Panel question No. 5(a)(vi).  
838 Brazil's first written submission, paras. 75 -76 
839 Brazil's first written submission, para. 76 . See also Brazil's response  to Panel question No s. 5(b)  and 
71. 
840 Brazil's response to Panel ques tion No. 5(b).  See also Brazil's second written submission, para. 167.  
841 Brazil's response  to Panel question No. 5(a)(iv).  WT/DS484/R  
 
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  7.10.3   Evidence and argument submitted by Brazi l 
7.641.   We turn next to the evidence and arguments that Brazil has submitted to demonstrate the 
existence of the alleged unwritten measure. These pertain mostly to the measure's precise 
content, and its operation as a single measure. We examine the following poi nts made by Brazil.  
7.10.3.1   Trade data  
7.642.   Brazil presents trade data that shows that since 2009 there have been virtually no imports 
of chicken meat and chicken products into Indonesia from any country, including from Brazil.842 As 
seen above, Indonesia does not conte st the data.843  
7.643.   Brazil argues that 2009 was the year when a series of different pieces of legislation, 
conceived for the fulfilment of the single overriding objective of protecting the domestic industry, 
were enacted.844 Brazil points in particular to the fol lowing legal instruments: Law 18/2009 ("Law 
on Husbandry and Animal Health"), whose Article 36(4) provides that imports of animal or animal 
products should only be authorized if domestic animal products and supply or livestock are 
insufficient to fulfil th e needs for the people’s consumption and MoA 20/2009, which established 
several requirements for the importation of carcass, meat and/or offal.845   
7.644.   Brazil contends that the fact, that virtually no imports have occurred, "by itself is evidence 
enough of the existence of the policy" and thus of the general prohibition.846 Brazil also points out 
that Indonesia fails to explain why no imports have been authorized.847  
7.645.   Brazil argues that while the measure is not to be confounded with its effect, in this 
particular ca se, the effects of the measure are particularly relevant from an evidentiary point of 
view to confirm the measure's existence.848 
7.10.3.2   Written nature of the constitutive elements  
7.646.   Brazil points out that because the individual measures are written acts or derived f rom 
written acts (undue delay) "the precise content of the import ban and its attribution to Indonesia is 
clear and self -evident". Brazil contends that thus, "these [written] legal acts, in conjunction with 
the undue delay, provide enough evidence of the e xistence of the measure".849  
7.10.3.3   Elements  of distinction between individual measures and single measure  
7.647.   In support of its contention that the alleged general prohibition is a measure that is 
"distinct" from its constitutive elements, Brazil highlights the foll owing.  
7.648.   First, Brazil  submits that the alleged general prohibition will not cease to exist, if one or 
more of its elements are altered, replaced or no longer implemented. Brazil gives as an example 
the fact that an individual measure such as the "undue dela y" could be addressed and would 
potentially solve specific trade concerns, but it would not dismantle the general prohibition 
because other elements of the unwritten measure would continue to act jointly to prevent 
imports.850 For Brazil, " to address the mea sures only individually would not solve the problem".851   
7.649.   Second, in the same vein, Brazil considers that even if some products at issue are 
exceptionally allowed to be imported, for instance, in the case of a short -term collapse on 
domestic production, the  general prohibition would still be in force. In Brazil's view, this would be 
                                                
842 Brazil's first written submission, paras. 22 -23. Indonesia's response to Panel question No. 9.  
843 See section 7.3 above.  
844 Brazil's response  to Panel question No. 5(a)(i).  
845 Brazil's first written submission, fn  19 to para. 23 . 
846 Brazil's closing statement at the first meeting of the Panel, paras. 3 and 4.  
847 Brazil's opening statement at the first meeting o f the Panel, para. 13.  
848 Brazil's response  to Panel question No. 5(a)(iv).  
849 Brazil's opening statement at the second meeting of the Panel, para. 4 8. See also Brazil's second 
written submission, para. 12.  
850 Brazil's response to Panel question No s. 5(a)(ii)  and 5(a)(iii).  
851 Brazil's response to Panel question No. 5(a)(iii).  WT/DS484/R  
 
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  the case as long as the underlying official trade policy of restricting imports to protect domestic 
production remains in place and "permeates Indonesia's trade measures".852 
7.650.   Third, Brazil argues that the "legal nature" of the alleged general prohibition is different 
insofar as it is  a quantitative restriction (an import ban), whereas the legal nature of its 
constitutive parts varies from more limited quantitative restrictions (such  as the prohibition on the 
importation of certain chicken products not included in the "positive list" of permitted products) to 
discrimination between domestic and imported products and licensing procedures that are more 
burdensome than necessary.853 
7.651.   Fourth , Brazil considers that differences in product coverage between the different 
individual measures only prove the existence of the general prohibition. Brazil refers to the 
positive list requirement, which does not affect individually all HS Codes, but only  those which are 
not included in the list of products allowed to be imported into Indonesia. Brazil points out that 
"when this element is combined with the other components, they result in an import ban to the 
products previou sly mentioned  [chicken meat an d chicken products from the species Gallus 
domesticus, commonly classified on HS Codes 0207.11, 0207.12, 0207.13, 0207.14 and 
1602.32 ]".854    
7.10.3.4   Evidence  that all individual elements pursue the same single objective  
7.652.   Brazil points to the provisions on self -sufficiency in Indonesian law and asserts that " in its 
current formulation, self -sufficiency is also an important component of the general prohibition, 
because it consists of a mandatory requirement that has to be applied by Indonesian authorities 
before impo rts are authorized".855 However, Brazil also distinguishes this component from the 
overriding objective, arguing that "even if the explicit references to such operational requirement 
were written out of Indonesia's legal framework, the general prohibition co uld subsist as an 
independent, single, unwritten measure whose objective is to implement the self -sufficiency 
policy".856   
7.653.   To prove that self -sufficiency has been adopted as an overriding policy objective, Brazil 
submitted a number of documents as evidence.  First, Brazil submitted two OECD reports, namely 
(1) a Review of Indonesia's Agricultural Policies dated 2012 ; and (2) the OECD FAO Agricultural 
Outlook 2014 -2023.857  
7.654.   Second, in its responses  to questions from the Panel, Brazil referred to "several 
declara tions of Indonesian authorities"858, and subsequently submitted five documents, which 
consist of four press articles and one letter from the Indonesian Director General of Livestock at 
the Ministry  of Agriculture to the Brazilian Ambassador to Indonesia .859 Indonesia submits that 
these last five documents are inadmissible as evidence because they have been submitted too 
late.860         
7.10.4   Panel's assessment  
7.655.   Having set out Brazil's arguments and evidence describing the alleged unwritten measure 
and its features, we now turn to assess whether Brazil has demonstrated the existence of the 
measure.  
7.656.   We recall that the legal standard applicable to ascertaining the existence of an unwritten 
measure requires (1) evidence to demonstrate that the measure is attributable to th e respondent; 
                                                
852 Brazil's response to Panel question No. 5(a)(iv).  
853 Brazil's response to Panel question No. 5(a)(iii).  
854 Brazil's response to Panel question No. 5(a)(ii).  
855 Brazil's response to Panel q uestion No. 5(b).  
856 Brazil's response to Panel question No. 5(b).  
857 See OECD Review of Agricultural Policies: Indonesia 2012 (Exhibit BRA -04) and OECD -FAO. 
Agricultural Outlook 2014 -2023 (Exhibit BRA -05). 
858 Brazil's response  to Panel question No. 5(c).  
859 Brazil's response  to Panel question No. 70  (referring to Exhibits BRA -52 through BRA -56). 
860 Indonesia's comment on Brazil's response  to Panel question No. 70.  WT/DS484/R  
 
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  (2) evidence to demonstrate the precise content of the challenged measure861, including evidence 
of how the different components operate together as part of a single measure and how such single 
measure exists as distinct from its components862; and (3) evidence on the specific nature of the 
measure, i.e. whether it is of general and prospective application or of a different nature.863 
Furthermore, the Appellate Body has pointed out that the evidentiary threshold for proving the 
existence of an unwri tten measure is high.864 We address these elements in turn.  
7.10.4.1   Attribution  
7.657.   Given that the constitutive elements of the alleged unwritten measure are provisions laid 
down in legal instruments enacted by Indonesia, there can be no doubt that the unwritten 
measure , if proven to exist, would be attributable to Indonesia.865 
7.10.4.2   Precise content  
7.10.4.2.1   Whether the trade data proves the existence of the measure  
7.658.   We first consider Brazil's argument regarding the absence of any imports of chicken meat 
and chicken products into Indones ia since 2009. We note that Indonesia does not contest this fact. 
Indonesia however points to the requirement to obtain an import approval866, and argues that the 
absence of imports can be attributed to other factors , such as lack of interest to export to 
Indonesia or non -compliance with requirements to import .867  
7.659.   We refer to the well -established case law according to which trade effects are neither 
necessary nor sufficient to prove a violation.868 That case law is based on the logic that what a 
complainant has to prove is not the effect itself but the causal link between the challenged 
measure and the observed (or potential) effect.869 We consider that this logic applies, all the more 
so, where the very existence of the challenged measure itself is at issue.  
7.660.   Consequently, Brazil's argument that there have been virtually no imports of chicken meat 
and chicken products since 2009, describes an effect but does not serve to establish the source of 
the effect. We, therefore, agree with Indonesia that absence of trade, by itself, does not prove the 
existence of an unwritten measure.870 The absence of trade could confirm the existence of an 
unwritten measure, if it has already been proven through other means.871   
7.10.4.2.2   Whether  the written nature of the constitutive elements proves  the existence 
of the measure  
7.661.   Next, we address Brazil's arguments that the written nature of (most of) the individual 
measures that it has identified as constitutive elements, is enough evidence to prove the existence 
of the measure.872 
7.662.   Brazil contrasts  this evidentiary situation with that in Argentina – Import Measures where 
the constitutive elements of the unwritten measure were not laid down in any legal act.873 We 
agree with Brazil that the situation we are dealing with is quite different from that in Argen tina – 
Import Measures . In that case, the constitutive elements of the unwritten measure – a set of 
                                                
861 Appellate Body Report s, Argentina – Import Measures , para 5.104.  
862 Appellate Body Report s, Argentina – Import Measures , para. 5.108.  
863 Appellate Body Report s, Argentina – Import Measures , para. 5.108.  
864 Appellate Body Report, US – Zeroing (EC) , para. 198.  
865 The Panel notes that in Indonesia's view, the delay in the approval of the veterinary health certificate 
is caused by actions of Brazil's exporters and is thus not attributable to Indonesia. Indonesia's first written 
submission, para. 108.  
866 Indonesia's response to Panel question No.  9. 
867 See Indonesia's second written submission, para. 102.  
868 See e.g. Panel Report , Colombia – Ports of Entry , paras. 7.252 –7.253. See also Appellate Body 
Report, EC – Bananas III , paras.  252-253 (citing  GATT Panel Report,  US – Superfund (1987) , para. 5.1.9).  
869 Panel Report, Argentina – Hides and Leather , paras. 11.20 -11.21.  
870 Indonesia's second written submission, para. 102.  
871 We understand Brazil to concede this point . See e.g. Brazil's second written submission, para. 10.  
872 Brazil's second written submission, para. 12.  
873 Brazil's second written submission, para. 11.  WT/DS484/R  
 
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  different conditions imposed upon importation or investment – were not contained in any legal act. 
To show that these conditions existed, the complainants w ere required to submit evidence of their 
application, i.e. show instances where they had been imposed. We note that in addition to showing 
the application of the different conditions, the complainants demonstrated that such application 
was intended to impl ement a specific policy decision – a point we come back to below.  
7.663.   In this dispute, the constitutive elements of the alleged unwritten measure are laid down in 
written legal instruments. Thus, unlike in Argentina – Import Measures , in this dispute, it is n ot 
necessary to show instances of the application of the individual constitutive elements to prove 
their existence. However, Brazil's burden is not to prove the existence of those individual 
measures but rather to prove the existence of an (unwritten) meas ure that it argues is distinct  
from these individual measures.  
7.10.4.2.3   Whether the single measure can be discerned from the design, structure and 
architecture of the constitutive elements  
7.664.   We understand Brazil to contend that the existence of the alleged unwritten  measure can 
be inferred  from the written individual measures insofar as their combined operation and the 
resulting effect of a total ban on imports would be proof of that existence. In other words, the 
existence of the alleged unwritten measure could be d emonstrated through the design, structure 
and architecture of the individual constitutive measures.   
7.665.   The design, structure and architecture of the individual measures could prove the 
existence of the unwritten measure if it can be demonstrated that their operation involves a 
certain interdependence and that such combined operation results in a single measure that is 
distinct from its components.874 In this regard we note that the panel in US – COOL identified 
factors that have been considered by panels and t he Appellate Body in past analogous disputes. 
We note  in particular the legal status of the requirements, their relationship and whether they 
have autonomous status.875 
7.666.   Brazil has described the combined operation by pointing to the multi -layered 
restrictiven ess of the different individual measures, which "forms a thick, virtually impenetrable 
barrier to imports".876 Indonesia contests that the different measures operate together as part of a 
single measure.877 
7.667.   We note that the four individual measures also challe nged separately are all part of the 
legal instruments that generally govern the conditions for importation of animal products including 
chicken meat and chicken products into Indonesia. The fact that they are part of the same import 
regime means that, at s ome level, they operate together and relate to each other. The two 
additional individual measures, namely the self -sufficiency clause and the essential goods clause, 
are contained in other legal instruments . More specifically, they are contained in laws wh ich to our 
understanding, are at a higher normative level than the two ministerial regulations that govern the 
conditions for importation of animal products. We note that, at least the latest version of the two 
ministerial regulations, refer to these laws in their preamble. Thus, it could be said that there is 
some relationship between the different legal instruments.  
7.668.   However, a relationship based merely on the co -existence in the same legal instrument or 
a connection between different legal instruments, is  not enough to assume that different measures 
operate as a single measure. This is particularly the case where measures operate in their own 
right.878 To consider the several individual measures as a single distinct measure they must be 
inter-dependent in re spect of the overall impact assessed.879 Here, we see a number of reasons as 
                                                
874 Appellate Body Report s, Argentina – Import Measures , para. 5.108.  
875 The factors identified by the panel are as follows:  (i) the manner in which the complainant presented 
its claim(s) in respect of the concerned instruments; (ii) the respondent's position ; and (iii) the legal status of 
the requirements or instrument(s), including the operation of, and the relationship between, the requirements 
or instruments, namely whether a certain requirement or instrument has autonomous status. Panel Report, US 
– COOL , para. 7.50. See also Appellate Body Report s, Argentina – Import Measures , fn 451 to para. 5.108.  
876 Brazil's second written submission, para. 13.  
877 See Indonesia's second written submission, paras. 100 -101. See also Indonesia's response  to Panel 
question N o. 68.  
878 Panel Report, US – Export Restraints , para. 8.85.  
879 Panel Report, US – COOL , para. 7.59.  WT/DS484/R  
 
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  to why, structurally, there is no such interdependence among the different measures identified by 
Brazil.  
7.669.   First, the mere fact that at least four of the individual measures are par t of the same 
import regime does not make them dependent on each other. Each one of the four measures could 
be terminated without affecting the operation of the other measures. Furthermore, as regards the 
self-sufficiency clause and the essential goods cla use, while we share Brazil's understanding that 
these clauses seem to provide a legal basis to take trade -restrictive action, it remains unclear to 
us, whether and if so, how they are related to, and impact, the operation of the other four 
individual measu res, or the import regime as a whole.  
7.670.   Second, contrary to Brazil's assertion, we do not see the general prohibition as a 
consequence of the individual measures operating together . To us, to the extent we have found 
each one of these measures as having an actual or potential trade -restrictive effect, this effect 
does not arise out of or depend on any of the other measures. The "undue delay" measure, for 
example, by itself results in chicken meat and chicken products from Brazil not being permitted 
into Indo nesia. This measure is not dependent on, or reinforced by any other measure.  
7.671.   Indeed, from Brazil's point of view, as we understand it, as long as chicken meat and 
chicken products cannot be imported into Indonesia, it does not matter how many individual 
measures there are, what they are about and whether they relate to each other – the alleged 
unwritten measure still exists. Thus, there could be one individual measure or hundreds of them, 
they could be the ones already identified, different or new ones. In  our view, this shows that the 
combined operation that Brazil alleges is not one that can be found in the design, structure or 
architecture of the various individual measures themselves.  
7.672.   Therefore, we find that an examination of the structure, design and architecture of the 
different individual measures which Brazil identifies as the constitutive elements of the alleged 
general prohibition, does not show that they operate as part of a single measure and how such a 
single measure exists  as distinct from its  components.880   
7.673.    The above conclusion however does not mean that the existence of an unwritten measure 
cannot be proven by other means. We therefore turn to Brazil's next line of argument in support of 
its assertion.  
7.10.4.2.4   Whether there is an overriding objectiv e that binds together the constitutive 
elements  
7.674.   Brazil has submitted evidence relating to its claim that there is an overriding policy 
objective that the unwritten measure is designed to implement. As noted above, Brazil describes 
the overriding policy obj ective as the "glue" that holds together the individual measures. Indonesia 
argues that some of the documents submitted by Brazil as evidence are inadmissible and 
otherwise submits that the evidence does not support the existence of the alleged measure. 
Indonesia argues that in the alternative, those pieces of evidence do not provide any meaningful 
support for Brazil's allegation that the general prohibition or overarching measure exists .881 
7.675.    Like Indonesia, we understand the overriding policy objective to pl ay a central role in 
Brazil's description of the measure. We recall that the standard to demonstrate the existence of 
                                                
880 We note that the panel in Indonesia – Import Licensing Regimes , considered a measure that has 
some similarity with the alleged measure discussed here. In pa rticular, we understand that measure to have 
been presented by the co -complainants as the interaction of seven individual measures some of which are 
almost identical predecessor versions of some of the ones at issue in the present case. We understand that 
panel to have considered the seven measures operating individually and as a whole, following the 
co-complainants characterization of the measures at issue. We note that, while some are identical, others of 
the seven measures are different from the ones dis cussed in this dispute; furthermore, the panel in that case 
identified certain compounded effects which directly resulted from the combined operation and interaction of 
the individual measures. The fact that our conclusion differs, may be explained by thes e differences as well as 
differences in the parties' argumentation. We further note that, in our understanding, that panel was not 
asked, and therefore did not make any findings, on the existence or non -existence of an unwritten measure . 
See Panel Report, Indonesia – Import Licensing Regimes,  paras. 2.64  and 7.465 . 
881 See Indonesia's comment on Brazil's response  to Panel question No. 70.  WT/DS484/R  
 
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  the unwritten measure depends on what Brazil argues is the precise content of the measure.882 
Therefore, since Brazil submits that the polic y objective is the "glue" of the various individual 
measures, Brazil has to prove that this is the case.  
7.676.   We note that in Argentina – Import Measures , the complainants similarly attributed a 
central role to the policy objective pursued by the individual me asures.883 The Appellate Body in 
that case emphasized the central role of this objective in the panel's finding that there was an 
unwritten measure that operated as a single measure.884  
7.677.   Accordingly, for the policy objective to be the "glue", it must be the ra tionale for the 
adoption of the individual measures that Brazil has identified (and possibly other existing 
measures that Brazil has not identified) and continue to be the reason for the adoption of any 
further trade -restrictive measures until that policy objective is abolished. In our view, Brazil needs 
to prove both these elements. With this in mind, we turn to assess the documents submitted by 
Brazil.  
7.678.   Regarding the OECD reports submitted by Brazil, we note that only the report on 
Indonesia's agricultural  policy, which is dated 2012, makes specific references to policy objectives 
pursued by Indonesia and to trade related measures applied to chicken meat and chicken 
products. The report, in one place, mentions self -sufficiency as a priority in Indonesia's a gricultural 
policy.885 In other places the report describes non -tariff measures taken by Indonesia as 
"stringent", "used to control imports"  and "implemented in a  non-transparent" manner .886   
7.679.   In assessing these references, we note that the OECD report is an o utside perspective and 
is therefore, a secondary source of information. Furthermore, in our assessment, the above 
references are not sufficient to prove the role of an overriding policy objective as Brazil describes it 
in respect of the alleged unwritten m easure. We observe that self -sufficiency as a policy objective 
does not necessarily imply the adoption of trade -restrictive measures. In our view, a Member may 
well pursue goals of self -sufficiency through means that are not WTO -inconsistent. Thus, showing  
that a Member pursues the policy of self -sufficiency, in and of itself, is not enough to prove that 
this policy has been implemented through an unwritten measure that consists in adopting trade -
restrictive measures.  While the OECD report does describe som e trade -restrictive measures, it 
does not make any link between those and a policy goal of self -sufficiency. As noted above, in our 
view, Brazil is required to show evidence of this link.  
7.680.   Regarding the five additional documents that Brazil has submitted at  the Panel's second 
meeting, we first need to address Indonesia's objection that these documents have been 
submitted too late.887 We note that Brazil has submitted these documents following a specific 
request from the Panel, which, in turn, was triggered by an argument that Brazil made in its 
responses to the Panel's questions following the first meeting. We take the view that given the 
circumstances, Brazil's submission of these documents was not too late pursuant to Paragraph 8 of 
our Working Procedures. We  observe in this context that it is the Panel's prerogative to ask 
questions and scrutinize the parties' argumentation.888  
7.681.   Turning to the content of the documents submitted, we note that one is a letter from the 
Director -General of livestock at the Ministry  of Agriculture to the Brazilian Ambassador to 
Indonesia . As far as we can see, the letter is a follow up to the third in a series of bilateral 
meetings between Indonesia and Brazil. We also describe these bilateral meetings in section 
7.7.2.2 above .889 In the letter, the Indonesian Director -General declines Brazil's proposal for a 
sanitary certificate for poultry on the grounds that the Indonesian poultry industry is self -
sufficient. We note that this evidence pertains to one of the six individual measures that Brazil has 
described as constitutive elements of the unwritten measure, namely, the undue delay. In the 
context of discussing that measure, Brazil has submitted evidence of a statement by Indonesian 
                                                
882 Appellate Body Report s, Argentina – Import Measures , para. 5.110.  
883 Panel Report s, Argentina – Import Measures , para. 6. 228. 
884 Appellate Body Report s, Argentina – Import Measures , paras. 5.126 and 5.143.  
885 See OECD Review of Agricultural Policies: Indonesia 2012 (Exhibit BRA -04), p. 22.  
886 See OECD Review of Agricultural Policies: Indonesia 2012 (Exhibit BRA -04), pp. 138, 14 0, and 207.  
887 See Indonesia's comment on Brazil's response  to Panel question No. 70.  
888 See Appellate Body Reports, US – Zeroing (EC) , para. 260; and EC – Fasteners (China) , para. 566.  
889 See also Brazil's first written submission, para. 38.  WT/DS484/R  
 
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  authorities – subsequ ent to the one at issue here – that expresses the exact opposite, namely that 
exports of chicken products would be possible despite the domestic industry's efforts to become 
self-sufficient.890 Thus, whether the letter is proof of self -sufficiency as the rea son for the 
existence of the individual measures is doubtful. In addition, it has no evidentiary value for the 
continued existence of the alleged unwritten measure as we discuss further below.  
7.682.    The other four documents that Brazil submitted following a req uest from the Panel are 
press articles. Like previous panels, we proceed with caution in assessing such press articles, 
mindful that they may not necessarily report facts in the most objective manner, but rather reflect 
opinions or the author's own interpr etation of facts.891 We note that the press articles date from 
2012, 2015 and 2016. Two of them report on domestic overproduction of chicken as a 
consequence of a policy of self -sufficiency.892 None of these articles, however, makes a link with 
trade -restricti ve measures adopted on the importation of chicken. Their relevance, in our view, 
therefore, is very limited. The other two articles, both dated 2012, do make a link between a 
policy of self -sufficiency and trade -restrictive measures on chicken imports.893 However the links 
made are either tenuous – not going beyond a reference to "protectionist policies on poultry"894 – 
or speculative (creation of a "super body" that "could lead to greater curbs on imports and exports 
of staples").895 In our view, they do not pro ve that the six individual measures that Brazil has 
identified as the constitutive elements of the alleged unwritten measure, have been adopted in 
order to implement a policy of self -sufficiency aimed at preventing imports of chicken.  
7.683.   Our assessment, thus , is that the documents submitted by Brazil do not sufficiently 
demonstrate that there is a link between a policy objective of self -sufficiency and the alleged 
specific trade -restrictive measures taken.   
7.10.4.3   Whether Brazil has proven the s pecific nature of th e measure in terms of 
future application  
7.684.   There is a further issue with the evidence submitted  by Brazil which concerns the third 
element of the test applicable to proving the existence of an unwritten measure, namely,  the 
specific nature of the measure in terms of future application.  The foregoing assessment of the 
evidence on the overriding policy objective submitted by Brazil mostly focuses on assessing the 
evidentiary value of what these documents state. What equally matters, in our view, is what these 
documents do not  state. In fact, it is one thing to show evidence of a link between a policy 
objective of self -sufficiency and a specific trade -restrictive measure already taken (a link, which, 
as just stated, is not supported by the evidence on record), an d it is another thing to show that 
the existence of this policy objective would also mandate the adoption of future trade -restrictive 
measures. As noted above, we believe that it is necessary to also demonstrate this latter  element, 
insofar as the existenc e of an unwritten measure is not proven until it is proven that that measure 
has some form of application in the future.     
7.685.   As the Appellate Body made clear in Argentina – Import Measures , the future application of 
an unwritten measure is part of its spec ific nature.896 The Appellate Body clarified that an 
unwritten measure  may vary in that it may be a rule or norm – that is, may have general and 
                                                
890 Minutes of the  CCA meeting of 15 and 16 September 2010 (Exhibit BRA -14), point 7.  
891 See Panel Report, Argentina – Import Measures , para s. 6.69-6.71 (referring inter alia  to Panel 
Reports, Australia – Automotive Leather II , fn 210 to para. 9.65; and China – Intellectual Property Rights , 
para. 7.629 ) (regarding news articles), and 6.78 (referring inter alia  to Panel Reports, EC – Approval and 
Marketing of Biotech Products , para. 7.532; Mexico – Taxes on Soft Drinks , paras. 8.76 -8.77; and Turkey – 
Rice, paras. 7.78 -7.79 and fn 367 ) (regarding statements by government officials reported in the news) . 
892 Press notes reporting on a s tatement by Indonesian Agriculture Minister on exporting chicken. 
Available at: http://en.republika.co.id/berita/en/national -politics/16/09/03/ocxsnk414 -indonesia -to-export -
chicken -due-to-overproduction  (Exhibit  BRA-54); and News article about  Indonesia's poultry policy. Available 
at: http://www.reuters.com/article/indonesia -poultry -policy -idUSL3N11Y1OE20150930  (Exhibit BRA -55). 
893 See News article on a  statement by the Head of the Food Security Agency of Indonesia's Ministry of 
Agriculture; available at: http://www.reuters.com/article/indonesia -food-idUSL4N09011D20121120 (Exhibit 
BRA-53) and Online article entitled: Indonesia aims for poultry and beef s elf-sufficiency  (Exhibit BRA-56). 
894 Online article entitled: "Indonesia aims for poultry and beef self -sufficiency" (Exhibit BRA -56). 
895 News article on a statement by the Head of the Food Security Agency of Indonesia's Ministry of 
Agriculture; available at : http://www.reuters.com/article/indonesia -food-idUSL4N09011D20121120   
(Exhibit  BRA-53). 
896 Appellate Body Report s, Argentina – Import Measures, paras. 5.104 -5.110.  WT/DS484/R  
 
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  prospective application – or may be something other than a rule or norm.897 The evidence 
necessary would depend on the specific nature of the measure as characterized by the 
complainant.898  
7.686.   We note that Brazil has not indicated with sufficient particularity what it considers to be 
the nature of the challenged measure. In its response  to a question from the Panel regardi ng the 
specific nature of the measure, Brazil submitted that the distinction between rules or norms and 
other unwritten measures such as ongoing conduct or concerted actions/practices was merely an 
"analytical tool [s] used to ascertain the existence of an unwritten measure".899 In Brazil's view the 
distinction "does not change…the nature of the measure itself or the evidentiary threshold 
necessary to demonstrate its existence…".900 We disagree on the basis of the Appellate Body's 
dictum referred to above.  
7.687.   More generally, and, thus, irrespective of the specific nature of the measure, Brazil has not 
submitted any evidence that would support its contention that the measure exists and continues to 
exist for as long as chicken meat and chicken products cannot be imp orted into Indonesia. Thus, 
none of the documents discussed above, suggests an intention, going forward, to implement a 
possible policy objective of self -sufficiency through trade -restrictive measures.    
7.688.   To sum up, the documents submitted by Brazil do not  sufficiently demonstrate that there is 
a link between a policy objective of self -sufficiency and the specific trade -restrictive measures 
taken; much less do they show that there could be a future implementation of such a policy 
objective through trade -restrictive measures.     
7.10.5   Conclusion  
7.689.   In conclusion, we find that Brazil failed  to make a prima facie  case, because it did not  
demonstrate the existence of the alleged unwritten measure.  
7.11  Separate opinion of one panelist  
7.11.1    Introduction  
7.690.   The fulfilment of a panel' s function is best served by consensus decisions. Nevertheless, in  
exceptional circumstances, consensus may be unattainable requiring a panelist to express a 
separate opinion. In the case at hand, an important difference exists concerning the 
methodologica l approach to be followed regarding three of the measures at issue. The difference 
affects the sequence of the Panel's analysis and the examination by the Panel of these three 
measures. Consequently, respectfully I am unable to agree with the analysis and finding s 
concerning these measures as set out in paragraphs 7.77 to 7.94 above  and 7.103  to 7.452 above  
and the conclusions and recomm endations set out  in paragraphs 8.1(b); 8.1(c); and 8.1(d) iii to 
viii. 
7.691.   In the current dispute, three of the measures challenged were amended twice after the 
request for the establishment of the panel. The measures concern (i) a limitation on importation o f 
chicken cuts; (ii) a limitation on the destination allowed for imports of chicken meat; and (iii) the 
period for application and period of validity of import recommendations and import approvals.  
7.692.   The two amendments were introduced through subsequent rep lacements of the entire 
regulations of the Minister of Agriculture (MoA) and of the Minister of Trade (MoT) that contain the 
legal framework applicable to imports of carcass, meat and processed products into Indonesia. 
Tables 1, 2 and 3 below show the chan ges adopted from the second to the third amendment 
(amended language bold and in italics).901  
                                                
897 Appell ate Body Report s, Argentina – Import Measures, paras. 5.107 -5.108.  
898 Appellate Body Report s, Argentina – Import Measures, para. 5.110.  
899 Brazil's response to Panel question No. 5(c).  
900 Brazil's response to Panel question No. 5(c).  
901 The measures as they ex isted at the t ime of the panel request  were not addressed by Brazil. 
Consequently, the case refers to the measures as  amended the first and second time.    WT/DS484/R  
 
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  7.693.   Pursuant to these changes, it is my view that the Panel should start its analysis by 
addressing three questions: ( 1) What are the amended measure s? (2 ) What is the  Panel's 
jurisdiction over the amended measure s? and (3 ) How does  the Panel address an allegation by the 
respondent regarding  "expiry of the original measures "? Thereafter, to the extent that the Panel 
determines that it has jurisdiction over the measure(s ) as amended it should examine the 
amended measures in light of the claims made by the complainant.  
7.11.2   What are  the amended measures?  
7.694.   In accordance with Article 3.3 of the DSU, the "measure" is the situation that the 
complaining Member  considers impairs bene fits accruing to it under the covered agreements. As 
explained by the Appellate Body902, the measure "must be the source of the alleged  impairment". 
Similarly, Article 7 of the DSU foresees that except if the parties agree otherwise, the identification 
and c haracterization of the measure to be examined by a panel is an exclusive right of the WTO 
Member requesting the establishment of a Panel.  This right is limited by the requirements of 
Article 4 of the DSU on consultations and Article 6.2 of the DSU on speci ficity of the measures but 
the selection and characterization of the measure in dispute is the prerogative of the complainant.  
7.695.   This principle applies to a situation where a complainant asks a panel to review an 
amended measure, suggesting that the measure  to be reviewed is the measure that the 
complainant considers to be the "amended" source of the alleged impairment.  The definition of the 
situation considered to impair benefits continues to be the prerogative of the complainant and is 
counterbalanced by t he authority of the panel to decide whether the measure as defined by the 
complainant  is within its jurisdiction. In addition, the exclusive right of the complainant to define 
the amended measure to be examined is subject to the legal basis set out in the panel request.  
7.696.   In the case at hand, it is my understanding that Brazil, when referring to the amended 
measures requested the Panel to examine:  
a. Concerning the limitation on imports of chicken cuts:  
i. Article 7 paragraphs 2 and 3 of MoA 34/2016, which Brazil  considers breach Article 
XI of the GATT 1994;  
b. Concerning the limitation of imports to certain uses:   
i. Articles 22(1), 31(1) and 32(3) of MoA 34/2016, which Brazil considers breach 
Article XI and Article III:4  of the GATT 1994.  
c. Concerning the period for application and period of validity of import recommendations 
and import approvals : 
i. Articles 21, 27 and 30 of MoA 34/2016, which Brazil considers that operating 
together breach Article XI of the GATT 1994 and Article 3.2 of the Agreement on 
Import Licensing  Procedures.  
7.11.3   Jurisdiction of the Panel over the amended measures  
7.697.   To establish whether the Panel has jurisdiction over the amended measures, the Panel 
must review the content of the measures as described in the panel request vis -à-vis the content of 
the am ended measures challenged by Brazil.  The factual circumstances of the case provide 
additional elements that complement the analysis, in particular the overall structure of the legal 
framework, the fact that the amendments were adopted by a replacement of t he entire MoA and 
MoT regulations with changes limited to the three measures covered by the dispute, and the 
timing of the changes which coincide with the Panel's proceedings.  
7.698.   Pursuant to Articles 3.3, 3.4 and 6.2 of the DSU, the analysis concerning a pane l's 
jurisdiction should focus on whether the subsequent measure is an "amendment" of the measure 
                                                
902 Appellate Body Report, United States — Gambling  para. 121  
 WT/DS484/R  
 
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  included in the panel’s request. Questions to be considered include whether the amended measure 
is a modification of the original measure; whether there is a c ontinuum between the original and 
the amended measure; whether they regulate the same subject. In addition, the panel should 
consider whether it can be reasonably concluded that the respondent (who controls the decision to 
amend the measure) was on notice that the amended measure would be referred to the panel. 
This is a due process consideration.  
7.699.   In the current case three elements seem clear. First, the three amended measures are 
covered by the panel’s request. This conclusion results from an analysis of t he measures as 
described in the panel request and the content of the amended measures as challenged by Brazil. 
Each of the amended measures regulates the same subject as the original measure with only 
limited modifications. Further, in the request for the establishment of the panel, for each measure, 
Brazil includes a description of the measure followed each time by an indication that it includes 
amendments, replacements, related and implementing measures to the measures described. This 
express formulation gave notice to Indonesia that Brazil, as complainant, would request  the Panel  
to review any amendments that Indonesia might  make to the measures at issue  during the period 
of the panel proceedings . When developing the modifications, Indonesia could have co nsulted with 
Brazil and the parties could have developed a mutually agreed solution and could have even have 
requested suspension of the work of the Panel. In the absence of such alternative actions, 
Indonesia could reasonably anticipate that Brazil would request the Panel to review any changes 
that Indonesia would make to the measures under consideration by the Panel.  
7.700.   Second, the three amended measures remain three measures. They did  not become six or 
seven different measures . Each amended measure is simp ly a modification of the original 
measure. Thus, the alleged limitation on imports of chicken cuts in its amended form comprises 
the list of allowed imports (Article 7(2) of MoA 34/2016) and the conditions set in Article 7(3) for 
non-listed products. The l imitation on the destination allowed for imports refers to the enlarged list 
of uses (MoA 34/2016 Article 31(1)) together with the two new conditions requiring that an 
application for an import recommendation includes a distribution plan identifying the wo uld-be 
purchaser and that upon importation the importer files a weekly report indicating the purchaser of 
the goods (MoA Articles 22(1) and 32(3)). The alleged restriction resulting from the period of 
application and the period of validity of import recomm endations and import approvals refers to an 
allegation of restriction based on the conditions operating together (MoA 34/2016 Articles 21, 27 
and 30).  
7.701.   Third, the jurisdiction of the Panel over the amended measures does not depend on 
whether the amended mea sure fails to remove the original impairment . The amended measures 
are each a modification of the respective original measure, regulating the same aspect of chicken 
imports into Indonesia covered by the Panel's jurisdiction. Each measure may contain elemen ts 
that impair benefits either in a  similar or different way to the original measure or the measure may 
contain no elements that impair benefits. It is the Panel's examination pursuant to its jurisdiction 
that allows it to determine whether one of three si tuations described above exist and whether 
there is a consequent impairment.  
7.11.4   Relation between  a panel's  jurisdiction and an allegation of expiry  
7.702.   Once jurisdiction is established, the Panel needs to examine the amended measures  
considering the claims and re buttals by the parties and make findings and recommendations as 
appropriate. Jurisdiction is independent from an allegation by the respondent regarding expiry of 
the measure.  
7.703.   An allegation of expiry should be considered as part of the analysis of the origi nal 
measure, and only as a factual determination as to whether the legal instrument that incorporated 
the original measure has been revoked. Such is the case in the current dispute and therefore 
recommendations related to the original measures should not b e made (measures included in 
MoA 58/2015 and MoT 5/2016).  
7.704.   A second type of allegation of "expiry" whereby the respondent alleges that the original 
measure expired because the amended measure does not include the restriction embodied in the 
original measure  would need to be dismissed. Such an allegation assumes that only measures that 
are contrary to the covered agreements can be the subject of examination by the Panel (acting WT/DS484/R  
 
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  pursuant to its jurisdiction). The argument seems to be that if a measure is amend ed and the 
original restriction eliminated, the WTO incompatibility is removed and the measure ceases to exist 
because it is no longer WTO -incompatible. This overlooks the fact that that the amended measure, 
as a matter of fact, exists because it is writte n in provisions incorporated in a legal instrument 
identified by the complainant and perceived by the complainant to be an alleged source of 
impairment.  
7.11.5   Conclusions  
7.705.   It is my view, that the sequence of determining the content of the amended measure 
challeng ed, followed by a determination of jurisdiction over the measure is key to a clear and 
comprehensive examination by the panel.  
7.706.   An approach where the jurisdiction over an amended measure is only asserted after the 
panel determines that the measure (original ) has not expired because the amended measure 
contains a similar restriction creates the risk that the panel focuses its examination on an issue 
that may no longer be the problem. Upon the amendment, the source of impairment is the 
measure as amended  rathe r than the original measure. At that stage and to the extent that the 
complainant develops claims against the amended measure, the panel needs to examine the 
modified measure as defined by the complainant. This is important because it is possible that the 
amended measure resolves some problems while creating other problems. So long as the 
amended measure is covered by the panel's jurisdiction and the claim is covered by the legal basis 
identified in the panel request , the measure to be examined is the measu re as amended.  
7.707.   In summary, it is my view that in the present case pursuant to the amendment of the 
measures and the allegation by Brazil that the amended measures are in breach of the provisions 
of the covered agreements indicated in the panel request, the  Panel is required to determine 
whether it has jurisdiction over the amended measures (as defined by the complainant) and 
thereafter make findings and recommendations concerning the measure s as amended . Altering 
this sequence with an examination of whether  the "old measure" has expired because the "new 
measure removes the old problem" risks focusing the Panel's examination on a measure that is no 
longer the source of the alleged impairment. In addition, it risks changing the examination of the 
amended measu re into an examination that does not consider the amended measure in its 
integrity and as identified by the complainant.  WT/DS484/R  
 
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  Table 1.  Type of chicken meat and chicken products allowed to be imported  
*Includes whole chicken and does not include chicken cuts   
 
First amendment  Second amendment  
 
MoA 58/2015  
Art.8 ...type of non -cattle carcass and 
processed products is included in attachment 
II*…  
MoA 34/2016  
Art. 7(2) …type of carcass, meat, and/or offal other than cattle 
including its processed products …a re listed in Annex II*…  
 
(3) The type of carcass….not listed in…. Annex II* …. 
may still be granted recommendation as long as it meets 
the requirements of safe, healthy, wholesome and 
halal…  
 
 
MoT 5/2016  
Art. 7 The type of Animal and Animal product 
that c an be imported shall be as per Appendix 
… IV*  
  
Art. 10(1) To obtain approval to import … 
submit application attaching Recommendation 
from Minister of Agriculture…  
Art. 10(2) To obtain approval … attach:  
e) Recommendation of Min. of Agriculture 
…for impor ts …as per Appendix …IV *. 
  
MoT 59/2016  
Art. 7 (2) The types of Animal and Animal product which are 
limited for importation are as included in …Annex III*…  
  
 
Art. 11(1) To obtain Import Approval… submit application 
attaching  
e) Recommendation from Minist er of Agriculture for …products 
listed …in Annex III *… 
 
 
 
Art. 29 Animal and animal product that are not contained 
in the attachment to this Minister Regulation may be 
imported after obtaining Import Approval …by attaching 
recommendation referred to in Art icle 11…  
 
 
Table 2.  Limitation o n the destination of import s  
 
First amendment  Second amendment  
 
MoA 58/2015  
 
Art. 31(1) Intended use … of carcass and 
meat … is for hotels, restaurants, caterings, 
industries, and other particular purposes.  
 
 
  
MoA 34/ 2016  
 
Art. 31(1) purpose of usage …for carcass, meat, offal and /or 
its processes products which required cold chain facility  
…hotels, restaurants, caterings, industries, markets with cold 
chain facilities …. 
 
Art. 22(1) Application of a Recommendation …sh all be enclosed 
with…:  
(i) distribution plan … in accordance to Format -2 
 
Art 32(3) Business Actors…which import…is required to 
submit a distribution report …Format -4 every Thursday  
… 
 
 
Table 3. Application and validity periods for import recommendation and import approval  
 
First amendment  Second amendment  
 
MoA 58/2015  
Art. 22 …must submit Recommendation application 
on 1st-31st Dec.; 1st–30 April; 1st-31st August.  
 
 
 
Art. 30(1) Validity period of the Recommendation 
…shall be… 1st Jan up to 30th April; 1st May up to 
30th August; 1st Sept. up to 31 Dec.  
  
MoA 34/2016  
Art.21 ….application for a Recommendation … may be 
submitted at any time..  
Art 27. …within 3 months …submit an import 
approval …  
 
Art. 30 …validity period of the Recommendation … is for 
six months …  
 WT/DS484/R  
 
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  8  CONCLUSIONS AND RECO MMENDATIONS  
8.1.  For the reasons set forth in this Report, the Panel concludes as follows:  
a. In respect of Indonesia's request for a preliminary ruling :  
i. the Panel finds that t he alleged general prohibition/overarching measure is pr operly 
within the terms of reference of the Panel, and in particular, that (a) Brazil's panel 
request provides a brief summary of the complaint sufficient to present the problem 
clearly, (b) the measure described in Brazil's first written submission is not  altered to 
the point of falling outside the terms of reference of the Panel, and (c) the alleged 
general prohibition is properly identified in Brazil's panel request ; 
ii. the Panel finds that t he panel request does not contain a challenge to the import 
licens ing regime "as a whole", and such measure is therefore not within the terms of 
reference of the Panel ; 
iii. the Panel finds that Brazil's claims with regard to other prepared or preserved 
chicken meat are identified in Brazil's panel request and are therefore w ithin the 
terms of reference of the Panel ; 
iv. the Panel t akes note of Brazil's statement that it is not making any claims under 
Article 1 of the Agreement on Import Licensing Procedures and therefore sees no 
need to rule that Brazil is precluded from making s uch claims.  
b. In respect of the positive list requirement:  
i. the Panel finds that the positive list requirement as enacted through MoA 58/2015 
and MoT 05/2016 is inconsistent with Article XI of the GATT 1994;  
ii. the Panel finds that the positive list requirement  as enacted through MoA 58/2015 
and MoT 05/2016 is not justified under Article XX(d) of the GATT 1994;  
iii. the Panel considers that h aving found that the positive list requirement as enacted 
through MoA 58/2015 and MoT 05/2016 is inconsistent with  Article XI o f the 
GATT  1994 and is not justified under the general exception in Article XX(d) of the 
GATT  1994, it is not necessary to address Brazil's claim under Article 4.2 of the 
Agreement on Agriculture  in order to secure a positive solution to this dispute ; 
iv. the Panel finds that the positive list requirement has not ceased to exist by virtue of 
the relevant provisions in MoA 34/2016 and MoT  59/2016;  
v.  the Panel finds that  since the positive list requirement, as enacted through MoA 
34/2016 and MoT 59/2016, continues  to apply in the same manner  as enacted 
through MoA 58/2015 and MoT 05/2016 , the Panel's findings on Article XI and XX(d) 
of the GATT 1994, in respect of the measure  as enacted through MoA 58/2015 and 
MoT 05/2016, also apply to this measure as enacted thro ugh MoA 34/2016 and MoT 
59/2016.  
c. In respect of the intended use requirement:  
i. in respect of the intended use requirement as enacted through the relevant 
provisions in MoA 58/2015, the Panel finds that:  
1) Article III:4 of the GATT 1994 is not applicable be cause of the absence of an 
equivalent domestic measure;  
2) the intended use requirement is inconsistent with Article XI of the GATT 1994;  WT/DS484/R  
 
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  3) the intended use requirement is not justified under Article XX(b) or Article XX(d) 
of the GATT 1994;  
4) having fou nd that the intended use requirement is inconsistent with  Article XI of 
the GATT 1994, it is not necessary to address Brazil's claim under Article 4.2 of the 
Agreement on Agriculture  in order to secure a positive solution to this dispute ; 
ii.  the intended use  requirement has not ceased to exist by virtue of the amendments 
made to through  the relevant provisions in MoA  34/2016;  
iii. in respect of the intended use requirement as enacted through the relevant 
provisions in MoA 34/2016, the Panel finds that:  
1) Article II I:4 of the GATT 1994  is applicable , because there is an equivalent 
measure applied to like domestic products ; 
2) the intended use requirement with respect to its  cold storage requirement is not 
inconsistent with Article III:4 of the GATT  1994,  
3) the intended u se requirement with respect to its enforcement provisions is 
inconsistent with Article III:4 of the GATT 1994;  
4) the intended use requirement with respect to its enforcement provisions is not 
justified under the general exceptions in Article XX(b) or Articl e XX(d) of the 
GATT 1994.  
5) having found that the intended use requirement with respect to its enforcement 
provisions is inconsistent with Article III:4 of the GATT 1994, it is not necessary 
to address Brazil's  claim under Article XI:1 of the GATT 1994 and  Article 4.2 of 
the Agreement on Agriculture  in order to secure a positive solution to this 
dispute.  
d. In respect of Indonesia's import licensing procedures:  
i. the Panel finds that the positive list requirement is in the nature of  an import 
licensing rule and is  therefore not subject to the Import Licensing Agreement;  
ii. the Panel finds that the intended use requirement is in the nature of  an import 
licensing rule and is therefore not subject to the Import Licensing Agreement;  
iii. the Panel finds that the application w indows, the validity periods and the fixed 
licence terms, as enacted through MoA  58/2015 and MoT 05/2016, are inconsistent 
with Article  XI:1 of the GATT 1994 ;  
iv. the Panel finds that the application windows, the validity periods and the fixed 
licence terms, as enacted through MoA  58/2015 and MoT 05/2016, are not justified 
under  Article XX(d) of the GATT 1994;  
v. the Panel considers that h aving found that the application windows, the validity 
periods and the fixed licence terms, as enacted through MoA  58/2015 and  
MoT 05/2016 , are inconsistent with  Article XI of the GATT 1994, it is not necessary 
to address Brazil's claim under  Article 4.2 of the Agreement on Agriculture and  
Article  3.2 of the Import Licensing Agreement  in order to secure a positive solution to 
this dispute ; 
vi. the Panel finds that the application windows and the validity periods , as a single 
measure,  have ceased to exist;  the Panel thus  refrain s from making  a 
recommendation in respect of th is measure ; 
vii. regarding the  new validity period, as enacted thro ugh MoA  34/2016, the Panel  finds 
that Brazil failed to demonstrate that this measure is inconsistent with Article  XI:1 of WT/DS484/R  
 
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  the GATT  1994, Article 4.2 of the Agreement on Agriculture  and Article 3.2 of the 
Import Licensing Agreement ; 
viii. the Panel finds that bec ause of the almost identical language in the relevant 
provisions governing the fixed licence terms,  the Panel's findings on Article XI and 
XX(d) of the GATT 1994, in respect of this measure as enacted through MoA 58/2015 
and MoT 05/2016, also apply to this  measure as enacted through MoA 34/2016 and 
MoT 59/2016;  
ix. the Panel finds that  Brazil failed to make a prima facie  case that the following 
aspects of Indonesia's import licensing regime are WTO -inconsistent: (1)  MoT's 
power to determine the amount of import ed goods in the MoA Import 
Recommendation , as enacted through MoA 58/2015 ; and (2) the denial of import 
licences to secure price stabilization.  
e. In respect of the undue delay in the approval of the veterinary health certificate:  
i. the Panel finds that Indones ia has caused an undue delay in the approval of the 
veterinary health certificate inconsistent with Article 8 and Annex C (1)(a) of the 
SPS Agreement.  
f. In respect of the halal labelling requirements:  
i. the Panel finds that Brazil failed to demonstrate that In donesia's implementation of 
its halal labelling requirements is inconsistent with Indonesia's obligations under 
Article III:4 of the GATT 1994.  
g. In respect of the transportation requirement:  
i. the Panel finds that Brazil failed to demonstrate that the direct  transportation 
requirement , as enacted through  Article  19(a) of MoA  34/2016 , is inconsistent with 
Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture .  
h. In respect of the general prohibition:  
i. the Panel finds that Brazil failed to make a prima facie case, because it did not 
demonstrate the existence of the alleged unwritten measure.  
8.2.  Under Article 3.8 of the DSU, in cases where there is an infringement of the obligations 
assumed under a covered agreement, the action is considered prima facie  to constitute a case of 
nullification or impairment. We conclude that, to the extent that the measures at issue are 
inconsistent with certain provisions of the GATT 1994 and the  SPS Agreement , they have nullified 
or impaired benefits accruing to Brazil under those  agreement s. 
8.3.  Pursuant to Article 19.1 of the DSU, the Panel, with the exception of the measure referred to 
in 8.1.d(vi) above,  recommend s that Indonesia bring its measure s into conformity with its 
obligations under Article s III:4 and  XI:1 of the GATT 1994 and Article 8 and Annex C(1)(a) of the 
SPS Agreement.  
__________