WT/DS484/R/Add.1  
 
17 October 2017  
(17-5515) Page: 1/96 
  Original: English  
 
  INDONESIA – MEASURES CONCERNING THE IMPORTATION OF  
CHICKEN MEAT AND CHI CKEN PRODUCTS  
REPORT OF THE PANEL  
Addendum  
This addendum  contains Annexes A to C to the Report of the Panel to be found in document  
WT/DS484/R . 
 
 
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 WT/DS484/R/Add.1  
 
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  LIST OF ANNEXES  
ANNE X A 
WORKING PROCEDURES FOR THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures for  the Panel  A-2 
ANNEX B  
ARGUMENTS OF THE PAR TIES 
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of Brazil  B-2 
Annex  B-2 Integrated executive su mmar y of the arguments of Indonesia  B-27 
ANNEX  C 
ARGUMENTS OF THE THI RD PARTIES  
Contents   
Annex  C-1 Executive summary of the arguments of Argentina  C-2 
Annex  C-2 Executive summary of the arguments of Australia  C-8 
Annex  C-3 Executive summary of the argumen ts of Canada  C-11 
Annex  C-4 Executive summary of the arguments of the European Union  C-15 
Annex  C-5 Executive summary of the arguments of Japan  C-17 
Annex  C-6 Executive summary of the arguments of New Zealand  C-20 
Annex  C-7 Executive summary of the arg uments of Norway  C-25 
Annex  C-8 Executive summary of the arguments of Paraguay  C-27 
Annex  C-9 Executive summary of the arguments of Qatar  C-28 
Annex  C-10 Executive summary of the arguments of the United States  C-30 
 
 
 WT/DS484/R/Add.1  
 
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  ANNEX  A 
WORKING PROCEDURES FOR THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures for  the Panel  A-2 
 WT/DS484/R/Add.1  
 
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  ANNEX  A-1 
WORKING  PROCEDURES FOR THE P ANEL 
Adopted on 16 March 2016  
 
 
1.  In its proceedings, the Panel shall follow the relevant provisions of the Understanding on Rules 
and Procedures Go verning the Settlement of Disputes (DSU). In addition, the following Working 
Procedures shall apply.  
General  
 
2.  The deliberations of the Panel and the documents submitted to it shall be kept confidential  
except as communicated in the Panel report. Nothing in  the DSU or in these Working Procedures 
shall preclude a party to the dispute (hereafter "party") from disclosing statements of its own 
positions to the public. Members shall treat as confidential information submitted to the Panel by 
another Member which the submitting Member has designated as confidential. Where a party 
submits a confidential version of its written submissions to the Panel, it shall also,  upon request of 
a Member, provide a non -confidential summary of the information contained in its subm issions 
that could be disclosed to the public.  
3.  Upon indication from any party, at the latest on the first substantive meeting , that it shall 
provide information that requires protection additional to that provided for under these Working 
Procedures, the P anel shall, after consultation with the parties, decide whether to adopt 
appropriate additional procedures. Exceptions to this procedure shall be granted upon a showing of 
good cause.   
4.  The Panel shall meet in closed session. The parties, and Members having  notified their interest 
in the dispute to the Dispute Settlement Body in accordance with Article 10 of the DSU  (hereafter 
"third parties"), shall be present at the meetings only when invited by the Panel to appear 
before  it.  
5.  Each party and third party ha s the right to determine the composition of its own delegation  
when meeting with the Panel. Each party and third party shall have the responsibility for all 
members of its own delegation and shall ensure that each member of such delegation acts in 
accordan ce with the DSU and these Working Procedures, particularly with regard to the 
confidentiality of the proceedings.  
Submissions  
 
6.  Before the first substantive meeting of the Panel with the parties, each party shall submit a 
written submission in which it pre sents the facts of the case and its arguments, in accordance with 
the timetable adopted by the Panel. Each party shall also submit to the Panel, prior to the second 
substantive meeting of the Panel, a written rebuttal, in accordance with the timetable adop ted by 
the Panel.  
7.  A party shall submit any request for a preliminary ruling at the earliest possible opportunity 
and in any event no later than in its first written submission to the Panel. If Brazil requests such a 
ruling, Indonesia  shall submit its resp onse to the request in its first written submission. If 
Indonesia  requests such a ruling, Brazil  shall submit its response to the request prior to the first 
substantive meeting of the Panel, at a time to be determined by the Panel in light of the request. 
Exceptions to this procedure shall be granted upon a showing of good cause.  
8.  Each party shall submit all factual evidence to the Panel no later than during the first 
substantive meeting, except with respect to evidence necessary for purposes of rebuttal, an swers 
to questions or comments on answers provided by the other party. Exceptions to this procedure 
shall be granted upon a showing of good cause. Where such exception has been granted, the Panel WT/DS484/R/Add.1  
 
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  shall accord the other party a period of time for comment, a s appropriate, on any new factual 
evidence submitted after the first substantive meeting.  
9.  Where the  original language of exhibits is not a WTO working language, the submitting party or 
third party shall submit a translation into the WTO working language o f the submission  at the 
same time. The Panel may grant reasonable extensions of time for the translation of such exhibits 
upon a showing of good cause. Any objection as to the accuracy of a translation should be raised 
promptly  in writing, no later than th e next filing or meeting (whichever occurs earlier) following 
the submission which contains the translation in question. Any objection shall be accompanied by a 
detailed explanation of the grounds of objection and an alternative translation. Thereafter, th e 
Panel will rule as promptly as possible on any objection to the accuracy of a translation.  
10.  In order to facilitate the work of the Panel, each party and third party  is invited to make its 
subm issions in accordance with the WTO Editorial G uide for Panel Su bmissions attached as 
Annex  1, to the extent that it is practical to do so . 
11.  To facilitate the maintenance of the record of the dispute and maximize the clarity of 
submissions, each party and third party shall sequentially number its exhibits throughout the  
course of the dispute. For example, exhibits submitted by Brazil  could be numbered BRA-1, BRA-2, 
etc. If the last exhibit in connection with the first submission was numbered BRA-5, the first 
exhibit of the next submission thus would be numbered BRA-6. 
Questions  
 
12.  The Panel may at any time pose questions to the parties and third parties,  orally or in writing, 
including prior to each substantive meeting.  
Expert consultation  
13.  Consistent with Article 13 of the DSU , Article 14. 2 of the TBT Agreement and Article 11.2 of 
the SPS Agreement, the Panel may seek expert advice from experts and from international 
organizations, as appropriate . In the course of the proceedings,  and at the latest two weeks after 
the first written submission is received, the Parties should inform the Panel whether they consider 
that the Panel should consult with scientific or technical experts. Should the Panel decide to 
consult experts, it shall adopt additional working procedures .  
Substantive meetings  
 
14.  Each party shall provide to the Pan el the list of members of its delegation in advance of each 
meeting with the Panel and no later than 5.00  p.m. the previous working day.  
15.  The first substantive meeting of the Panel with the parties shall be conducted as follows:  
a. The Panel shall invite Brazil to make an opening statement to present its case first. 
Subsequently, the Panel shall invite Indonesia  to present its point of view. Before each 
party takes the floor, it shall provide the Panel and other participants at the meeting 
with a provisional w ritten version of its statement. In the event that interpretation is 
needed, each party shall provide additional copies to the interpreters. Each party shall 
make available to the Panel and the other party the final version of its statement, 
preferably at the end of the meeting, and in any event no later than 5.00  p.m. on the 
first working day following the meeting.  
b. After the conclusion of the statements, the Panel shall give each party the opportunity to 
ask each other questions or make comments, through t he Panel. Each party shall have 
an opportunity to orally answer these questions. Each party shall send in writing, within 
a timeframe to be determined by the Panel, any questions to the other party to which it 
wishes to receive a response in writing. Each party shall be invited to respond in writing 
to the other party's questions within a deadline to be determined by the Panel.  
c. The Panel may subsequently pose questions to the parties.  Each party shall then have an 
opportunity to answer these questions orall y. The Panel shall send in writing, within a WT/DS484/R/Add.1  
 
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  timeframe to be determined by it, any questions to the parties to which it wishes to 
receive a response in writing. Each party shall be invited to respond in writing to such 
questions within a deadline to be det ermined by the Panel.  
d. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with Brazil  presenting its statement first.  
e. The Panel may, after consultation with the parties, set time limit s for the opening 
statements; such time limits would be informed to the parties before the first 
substantive meeting.  
16.  The second substantive meeting of the Panel with the parties shall be conducted as follows:  
a. The Panel shall ask Indonesia  if it wishes to avail itself of the right to present its case 
first. If so, the Panel shall invite Indonesia  to present its opening statement, followed by 
Brazil . If Indonesia  chooses not to avail itself of that right, the Panel shall invite Brazil  to 
present its opening statement first. Before each party takes the floor, it shall provide the 
Panel and other participants at the meeting with a provisional written version of its 
statement. In the event that interpretation is needed, each party shall provide additional 
copies  to the interpreters. Each party shall make available to the Panel and the other 
party the final version of its statement, preferably at the end of the meeting, and in any 
event no later  than 5.0 0 p.m. of the first working day following the meeting.  
b. After the conclusion of the statements, the Panel shall give each party the opportunity to 
ask questions or make comments, through the Panel. Each party shall then  have an 
opportunity to answer these questions  orally. Each party shall send in writing, within a 
timeframe to be determined by the Panel, any questions to the other party to which it 
wishes to receive a response in writing. Each party shall be invited to respond in writing 
to the other party's questions within a deadline to be determined by the Panel.  
c. The Panel may subsequently pose questions to the parties.  Each party shall then have an 
opportunity to answer these questions orally. The Panel shall send in writing, within a 
timeframe to be determined by it, any questions to the parties to which it wishe s to 
receive a response in writing. Each party shall be invited to respond in writing to such 
questions within a deadline to be determined by the Panel.  
d. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief  closing statement, with the party that presented its opening statement 
first, presenting its closing statement first.  
Third parties  
 
17.  The Panel shall invite each third party to transmit to the Panel a written submission prior to 
the first substantive meet ing of the Panel with the parties, in accordance with the timetable 
adopted by the Panel.  
18.  Each third party shall also be invited to present its views orally during a session of this first 
substantive meeting, set aside for that purpose. Each third party s hall provide to the Panel the list 
of members of its delegation in advance of this session and no later than 5.00  p.m. the previous 
working day.  
19.  The third -party session shall be conducted as follows:  
a. All third parties may be present during the entirety of  this session.  
b. The Panel shall first hear the arguments of the third parties in alphabetical order. Third 
parties present at the third -party session and intending to present their views orally at 
that session, shall provide the Panel, the parties and othe r third parties with provisional 
written versions of their statements before they take the floor.  In the event that 
interpretation is needed, each third party shall provide additional copies to the 
interpreters. Third parties shall make available to the Pa nel, the parties and other third WT/DS484/R/Add.1  
 
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  parties the final versions of their statements, preferably at the end of the session, and in 
any event no later than 5.00 p.m. of the first working day following the session.  
c. After the third parties have made their stateme nts, the parties may be given the 
opportunity, through the Panel, to ask the third parties questions for clarification on any 
matter raised in the third parties' submissions or statements. Each party shall send in 
writing, within a timeframe to be determin ed by the Panel, any questions to a third party 
to which it wishes to receive a response in writing. Each third party shall be invited to 
respond in writing to these questions within a deadline to be determined by the Panel.  
d. The Panel may subsequently pose  questions to the third parties.  Each third party shall 
then have an opportunity to answer these questions orally.  The Panel shall send in 
writing, within a timeframe to be determined by it, any questions to the third parties to 
which it wishes to receive a response in writing. Each third party shall be invited to 
respond in writing to such questions within a deadline to be determined by the Panel.  
Descriptive part  
 
20.  The description of the arguments of the parties and third parties in the descriptive part of  the 
Panel report shall consist  of the executive summaries provided by the parties and third parties, 
which shall be annexed  as addenda to the report. These executive summaries shall not in any way 
serve as a substitute for the submissions of the parties a nd third parties in the Panel's examination 
of the case.  
21.  Each party shall submit an integrated executive summar y of the facts and arguments as 
presented to the Pa nel in its written submissions and oral statements, in accordance with the 
timetable adopted b y the Panel . This summar y may also include a summary of responses to 
questions . The integrated executive summary shall not exceed 30 pages. The Panel will not 
summarize in the descriptive part of its report, or annex to its report, the parties' responses t o 
questions.  
22.  Each third party shall submit an executive summary of its arguments as presented in its 
written submission and statement in accordance with the timetable adopted by the Panel. This 
summary may also include a summary of responses to questions, where relevant. The executive 
summary to be provided by each third party shall not exceed 6  pages.  
Interim review  
 
23.  Following issuance of the interim report, each party may submit a written request to review 
precise aspects of the interim report and request  a further meeting with the Panel, in accordance 
with the timetable adopted by the Panel. The right to request such a meeting shall be exercised no 
later than at the time the written request for review is submitted.  
24.  In the event that no further meeting wi th the Panel is requested, each party may submit 
written comments on the other party's written request for review, in accordance with the timetable 
adopted by the Panel. Such comments shall be limited to commenting on the other party's written 
request for review.  
25.  The interim report , as well as the final report prior to its official circulation,  shall be kept 
strictly confidential and shall not be disclosed.  
Service of documents  
 
26.  The following procedures regarding service of documents shall apply:  
a. Each part y and third party  shall submit all documents to the Panel by filing them with 
the DS  Registry (office No. 2047) .  
b. Each party and third party shall file 4 paper copies of all documents it submits to the 
Panel.  Exhibits may be filed in 4 copies on CD -ROM, DVD, or USB stick  and 3 paper 
copies.  The DS  Registrar shall stamp the documents with the date and time of the filing. WT/DS484/R/Add.1  
 
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  The paper version shall constitute the official version for the purposes of the record of 
the dispute.  
c. Each party and third party shall als o provide an electronic copy of all documents it 
submits to the Panel at the same time as the paper versions, preferably in Microsoft 
Word format, either on a CD -ROM, a DVD, a USB stick or as an e -mail attachment. If the 
electronic copy is provided by e -mail, it should be addressed to DSRegistry@wto.org , 
with a copy  to ****.****@wto.org , ****.****@wto.org , ****.****@wto.org , 
****.****@wto.org , and ****.****@wto.org . If a CD -ROM, DVD, or USB stick is 
provided, it sha ll be filed with the DS  Registry.  
d. Each party shall serve any document submitted to the Panel directly on the other party. 
Each party shall, in addition, serve on all third parties its written submissions in advance 
of the first substantive meeting with th e Panel. Each third party shall serve any 
document submitted to the Panel directly on the parties and all other third parties. Each 
party and third party shall confirm, in writing, that copies have been served as required 
at the time it provides each docum ent to the Panel.  
e. Each party and third party  shall file its documents with the DS Registry and serve  copies 
on the other party (and third parties where appropriate) by 5.00  p.m. (Geneva time) on 
the due dates established by the Panel.  A party may submit  its documents to another 
party in electronic  format only. With respect to third parties, a party or third  party may 
submit  its documents  in electronic format only, unless a third party requests in writing to 
receive paper copies.  
f. The Panel shall provide the parties with an electronic version of the descriptive part, the 
interim report and the final report, as well as of other documents as appropriate. When 
the Panel transmits to the parties or third parties both paper and electronic versions of a 
document, th e paper version shall constitute the official version for the purposes of the 
record of the dispute.  
27.  The Panel reserves the right to modify these procedures as necessary, after consultation with 
the parties.  The Panel will annex to its report these procedu res. 
 
 
 
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 WT/DS484/R/Add.1  
 
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  ANNEX  B 
ARGUMENTS OF THE PAR TIES 
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of Brazil  B-2 
Annex  B-2 Integrated executive su mmary of the arguments of Indonesia  B-27 
 
 WT/DS484/R/Add.1  
 
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  ANNEX  B-1 
INTEGRATED EXECUTI VE SUMMARY OF THE ARGUMENTS OF BRAZIL  
I.  INTRODUCTION AND FAC TUAL BACKGROUND  
1. For the past years Indonesia has implemented layer -upon-layer of a complex and intricate 
trade regulation that imposes several restrictions on the importation of Brazilian chi cken meat and 
chicken products. First of all, not all types of chicken meat and chicken products are allowed to be 
imported into the country. Secondly, Indonesia prioritizes domestic food production and national 
food reserve over imports, as well as restri cts imports to cases in which there are "shortages" in 
the domestic production. Thirdly, no imports are authorized for other uses than those previously 
allowed by the Indonesian legislation (hotels, restaurants, catering, industries, and other particular 
purposes), what means that imported products are not allowed in "wet markets" (traditional 
markets), which are estimated to correspond to 70% of the poultry market in Indonesia. Fourthly, 
Indonesia adopts a complex, non -transparent and arbitrary import lice nsing regime, which unduly 
restricts imports. Fifthly, Indonesia never presented any explanation for the ongoing delay of 7 
years to undertake and complete the sanitary procedures required to import chicken meat and 
chicken products into Indonesia. As a ma tter of fact, the combined effects of these different trade, 
sanitary, and import licensing measures impose a general ban on Brazilian exports of chicken meat 
and chicken products.  
2. The products at issue in this dispute are referred by the following HS codes of the Gallus 
Domesticus species, as follows: 02.07. Meat and edible offal, of the poultry of heading 01.05, 
fresh, chilled or frozen - Of fowls of the species Gallus domesticus: 0207.11 (Not cut in pieces, 
fresh or chilled); 0207.12 (Not cut in piec es, frozen); 0207.13 (Cuts and offal, fresh or chilled); 
0207.14 (Cuts and offal, frozen) and 16.02 Other prepared or preserved meat, meat offal or blood 
- Of poultry of heading 01.05: 1602.32 (Of fowls of the species Gallus domesticus).  
3. Since 2009, Bra zil has attempted through different channels to obtain access to the 
Indonesian market without success. Between 2009 and 2011, the private sectors of both countries 
tried to negotiate the sale of mechanically deboned chicken meat, but the required authoriz ations 
were never granted by the Indonesian authorities. In parallel, Brazil and Indonesia discussed the 
market access of Brazilian exports in several meetings of the Consultative Committee of 
Agriculture (CCA). In the Third Meeting of the CCA, on 4 -5 May 2009, Brazil officially presented a 
proposal of health certificate for fresh poultry meat and for turkey and duck based on the 
guidelines of the OIE Terrestrial Code, but no official answer was ever received from the 
Indonesian Government. Also, during the  Fourth Meeting of the CCA, on 15 -16 September 2010, 
the Indonesian authorities indicated that they would evaluate the "possibility of opening" the 
chicken market. However, they pointed out that Indonesia was "self -sufficient" in these products 
(chicken), and therefore they would "prioritize" the imports of turkey and duck meat, which were 
never allowed as well. On the occasion, Brazilian authorities were informed that a sanitary 
inspection mission would be sent to the country, but it never happened nor any  justification was 
given as to the reason the mission was not sent.  
4. Brazil raised several Specific Trade Concerns (STCs) in the WTO SPS Committee over the 
past years regarding the Indonesian restrictive legislation and failure to grant access to Brazil ian 
exports of chicken meat and chicken products. Indonesia has never provided a satisfactory and 
WTO-consistent answer to Brazil 's concerns. In light of this, in July 2014, Brazil presented a formal 
request for information based on Article 5.8 of the SPS Agreement. Indonesia limited itself to point 
out to several Indonesian legislations that would apply to imports of animal products. It did not 
present any sanitary reasons not to approve the health Certificates and not to send an inspection 
mission to Braz il. It also confirmed that no risk assessment for the Brazilian chicken meat and 
chicken products had ever been made. According to Indonesia, the "delay" (actually an absence of 
response) for the approval of the Veterinary Health Certificate was due to an allegedly Brazilian 
failure "to comply with the existing procedures and technical regulations" related to halal 
information.  WT/DS484/R/Add.1  
 
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  5. Indonesia's import regime for chicken meat and chicken products is established by the 
application of several laws, decrees and regulations, which are grounded on the basic premise that 
imports of chicken meat and chicken products shall only take place when the domestic supply is 
not sufficient. For the purpose of this Executive Summary, and considering that the pieces of 
legislati on will be analyzed below, Brazil will not list them here.  
6. Brazil calls the Panel 's attention, however, to Indonesia's continuous changes and 
amendments to its legislation in a manner that suggests a strategy to turn this litigation into a 
pursuit of a  moving target. This poses particular problems. First, it may compromise the Member's 
ability to challenge the measures as the respondent could try to evade its obligations by simply 
modifying the pertaining legislation. Second, it may affect what the Pane l understands as its terms 
of reference. In this regard, Brazil submits that the matter before the Panel refers to "measures" 
and not to the legislation itself. The matter before the Panel covers the legal situation (i.e. the 
measures and its legal basis) identified by Brazil at its panel 's request. The Panel is thus required 
to take into account the legal framework prevailing on the date of the establishment of the Panel, 
as well as any amendment introduced afterwards that affect this legal situation. This  is particularly 
important in this case, because the changes have not served to correct the inconsistencies of 
Indonesian measures but rather to maintain the very same measures under a different guise, 
adding new layers of restrictiveness to this already e xtremely restrictive trade regime. It is to 
avoid this threat of legal insecurity when dealing with the so -called moving target that panels are 
required to primarily decide on the matter contained in the panel request, and, in light of the 
prospective rele vance of its report in terms of implementation, to also evaluate the modifications 
occurred thereafter.  
II.  PRELIMINARY RULING R EQUEST  
7. With regard to Indonesia 's preliminary ruling request, Brazil has demonstrated that its Panel 
request observed the ob ligations under Article 6.2 of the DSU On the issue of the Panel 's terms of 
reference, Brazil demonstrated that the general prohibition described in Brazil 's FWS preserves the 
same prohibitive nature and essence as the one identified in the panel request a nd is clearly within 
the scope of the Panel 's terms of reference. Likewise, it was clearly established that all the 
products at issue in the dispute were properly identified in the panel request. The HS code used in 
both the panel request and in the FWS is  exactly the same and corresponds in the official website 
of the World Customs Organization to "other prepared or preserved meat, meat offal or blood (of 
fowls of the species Gallus domesticus).  
8. Regarding Indonesia import licensing regime Brazil contend ed that in its panel request, it 
had addressed the restrictions and prohibitions laid out by the Indonesian import licensing regime, 
and identified that, as such, the regime is not consistent with Indonesia 's commitments under the 
WTO. Finally, Brazil conf irmed that it did not make any claim under Article 1 of the Agreement on 
Import Licensing. Brazil only addresses Article 1 in its FWS for the purpose of contextualization, as 
Article 1 informs both automatic import licensing (Article 2) and non -automatic i mport licensing 
(Article 3).  
III.  MEASURES AT ISSUE  
(1) The general prohibition on the importation of chicken meat and chicken products  
9. Brazil considers that the combined interaction of several different individual measures 
challenged in the present di spute constitute an overarching measure that is, on its own, a violation 
of the Covered Agreements, regardless of the specific impact of each of its constitutive elements. 
As such, it should be scrutinized by the Panel independently of and in addition to t he analysis of 
claims regarding individual measures as "part of a holistic analysis ", as indicated by the Appellate 
Body in Argentina – Import Measures . Even if one of the specific measures could be justified under 
WTO law, which could hardly be the case, the combined effects of the individual measures would 
still result in restrictive policies inconsistent with the Covered Agreements.  
10. Brazil highlighted that all the individual measures at stake in the current dispute were 
conceived to implement an offi cial trade policy based on the overriding objective of restricting 
imports to protect domestic production. As the Appellate Body has recognized in Argentina - 
Import Measures, when different measures are framed for the fulfillment of a single overriding WT/DS484/R/Add.1  
 
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  objective, the combined operation of these measures can be considered a single, self -standing 
measure whose consistency with the WTO agreements must be carefully scrutinized in order to 
effectively solve the dispute.  
11. Indonesia has put in place a set of m easures which resulted in a de jure  and a de facto  
prohibition on the importation of chicken meat and chicken products from Brazil. These measures 
are founded on the premise that the importation of animal products should be made only if 
domestic production  was insufficient to fulfill the needs for the people's consumption. This 
restrictive overarching framework operates through the combined effect of several measures, as 
follows:  
Prohibition on the importation of types of chicken meat and chicken products which are not 
included in Indonesia 's positive list of permitted imports, as explained below;  
Requirement related to the "insufficiency of local production", to be defined un der the 
discretion of the Indonesian authorities: According to Law 18/2009 (Article 36(4)), "import 
of animal or livestock and animal product from overseas shall be made if domestic animal 
products and supply of livestock is insufficient to fulfill the nee d for the people 
consumption". Also Law 18/2012 (Article 36) clearly indicates that in the case of "staple 
food", which encompasses chicken meat and chicken products, Indonesia 's Government 
should always prioritize domestic food production over food import s that should only be 
authorized as an exception. Thus, the lack of "sufficiency" of local production is currently a 
"requirement" for the importation of animal or livestock and animal products to Indonesia;  
Additional restrictions regarding the importa tion of essential and strategic goods, which 
include chicken meat and chicken products. According to Article 25(1) of Law 7/2014, 
Indonesia shall control the availability of essential goods in adequate quantities, of good 
quality, and at affordable prices.  The control of prices and quantities is also implemented 
in accordance with Article 26(3) of Law 7/2014, should Indonesian authorities understand 
that imports may affect the national production of strategic goods. The large margin of 
discretion of Indones ian authorities to confer a different treatment to imported chicken 
meat and chicken products, including prohibitions and/or restrictions to their importation in 
order to prioritize domestic products, is one of the major concerns of Brazil. This measure 
not only causes a high degree of unpredictability to international trade flows, but it also 
virtually allows Indonesian authorities to impede importation at any time, and for no 
specific reason;  
Restrictions on the use of imported chicken meat and chicken products, restricting the 
commercial opportunities for exporters to Indonesia, as explained below;  
Intricate and restrictive procedures for import licensing in Indonesia, which create 
unneces sary obstacles to trade, prohibiting the importation of chicken meat and chicken 
products, as explained below;  
Undue delay in the undertaking of the sanitary procedures required to allow Brazilian 
exports of chicken meat and chicken products into Indones ia, as explained below.  
12. The combined effects of the different Indonesian trade, licensing and sanitary measures 
impose a general ban on Brazilian exports of chicken meat and chicken products and have 
impeded Brazilian exports of the products at issue over the past seven years in a manner 
inconsistent with Indonesia's obligations. This general ban derives from and is implemented 
through the combined operation of several written regulations and procedures (and one omission, 
relating to the undue delay in  examining and approving Brazil's proposal for a health certificate) 
conceived for the fulfillment of a single overriding objective – to protect Indonesia 's domestic 
poultry industry – that is enshrined in Indonesia 's legislation itself. Of particular rele vance in this 
regard is 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 the  needs for the people 's consumption ". 
13. There is no doubt that the self -sufficiency policy is the overriding objective of Indonesia's 
unwritten ban on the importation of chicken meat and chicken products. Indeed, it is clear that WT/DS484/R/Add.1  
 
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  this policy is the "glue ", to use an expression coined by a third party that binds together all the 
individual components of the general ban and informs its implementation. Furthermore, in its 
current formulation, self -sufficiency is also an important component of the general mea sure, as it 
consists of a mandatory requirement that has to be applied by Indonesian authorities before 
imports are authorized. For instance, Law 18/2009 specifically provides in Article 36(4) that 
"import of animal or livestock and animal product from ove rseas shall be made if domestic animal 
products and supply or livestock is insufficient to fulfil the need for the people consumption ".  
14. During the panel 's proceedings, Indonesia argued that Brazil has not met the threshold to 
demonstrate a causal link  between the lack of chicken imports from Brazil and the import ban. It 
also argued that self -sufficiency is only a general principle governing its laws and regulations which 
has not had any practical effect on the importation of chicken into Indonesia.  B ased on these 
arguments, Indonesia insisted that Brazil has not demonstrated the existence of the general 
measure.  
15. Yet contrary to what Indonesia argues self -sufficiency is not simply a general objective 
within its legal framework with no practical eff ect. It is reflected in multiple Indonesian laws and 
regulations, permeates the formulation of all Indonesia's agricultural policies and has banned any 
kind of imports, not only from Brazil but from any other Member, at least since the enactment of 
Law 18/ 2009. The same policy is reinforced in other relevant legislation related to chicken imports, 
like Law 18/2012 (Article 36). Although the mentioned legal texts are sufficient to confirm that 
self-sufficiency should not be viewed solely as a "general princi ple", Brazil has submitted other 
pieces of evidence that shows that the self -sufficiency is indeed operative and has very noticeable 
trade effects. Finally, self -sufficiency has nothing to do with food security. In reality, the effects 
arising from this po licy are quite the opposite: reduced access to food (chicken, in this case) and 
higher prices.  
16. More importantly, Brazil has clearly demonstrated that most of the constitutive elements of 
the General ban are described in written legal acts adopted by In donesia, including the self -
sufficiency policy objective of the import ban. This substantially reduces the evidentiary threshold 
borne by the complainant to demonstrate the existence of the challenged measure. In the current 
dispute, these legal acts, in c onjunction with the undue delay, provide enough evidence of the 
existence of the measure. Brazil also clarified how these different elements operate together and, 
combined, result in an unwritten import ban. This ban operates either to decrease the market 
opportunities for imported chicken or to increase the costs and risks for exporters that intend to 
access the market, forming a thick, virtually impenetrable barrier to imports of any amount of 
chicken meat and chicken products from any source in the world .  
17. Brazil asks the Panel to make specific findings on the overarching measure in addition to 
those related to the individual restrictions. Each individual measure identified by Brazil remains a 
matter of concern and Brazil expects the Panel to make spe cific findings on them. However, 
although a finding of inconsistency on the individual measures may solve specific trade concerns, it 
would not dismantle the import ban system as whole, which is the main issue in this dispute. In 
terms of implementation, I ndonesia could simply change the instruments through which the import 
ban is made effective. The fact that Indonesia 's legislation is frequently modified suggests that this 
outcome is likely to happen.  
(2) Prohibition on imports of chicken cuts and other prepared or preserved chicken 
meat ( "positive list ") 
18. MoA Regulation 58/2015 establishes in Articles 7 and 8 that "the types of non -cattle carcass 
and the processed product thereof … that can be imported are included in Appendix II ...", which 
only cont emplates HS codes for chicken "not cut in pieces, fresh or chilled and frozen". This is also 
the case for MoT 05/2016, whose Article 7(2) establishes that the "types of animals and animal 
products that can be imported are listed in Annex II, III and IV whi ch is an integral part of this 
regulation". Annex IV makes references to HS codes for chicken "not cut in pieces, fresh or chilled 
and frozen". Thus, as the HS codes for the other products at issue are not described in those 
appendices, they cannot be impo rted into Indonesia.  
19. Although Indonesia had argued the positive list no longer exists, as changes were introduced 
in this requirement by MoA Regulation 34/2016, MoT Regulation 05/2016 and MoT Regulation WT/DS484/R/Add.1  
 
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  37/2016, MoA Regulation 34/2016 and MoT Regulati on 37/2016 still contain a list of animals and 
animal products that can be imported into Indonesia. HS Codes for chicken cuts and other 
prepared or preserved chicken meat are still not in the Annexes of both regulations. If the positive 
list requirement ha d been in fact terminated, there would be no need to have a list of products in 
the annexes of both Regulations in the first place. The fact that this list remains in force and that 
the relevant HS codes for the products at issue in this dispute are not in cluded therein is in itself 
reliable evidence that the positive list requirement is still in place. Moreover, the fact that the 
importation of those products "may" be authorized under conditions which are not clear – that is, 
safe, healthy, wholesome, and halal – makes importation even more cumbersome and 
unpredictable. This uncertainty in itself is a restriction.  
(3) Restrictions on the use of imported products ( "intended use ") 
20. The intended use requirement was provided for in Article 32(2) of MoA Regul ation 139/2014 
and consisted of "a limitation of the importation of chicken meat and chicken products to certain 
intended uses to meet the needs of "hotel, restaurant, catering, manufacturing, other special 
needs, and modern market" and maintained in subse quent legislation enacted by Indonesia (MoA 
Regulation 58/2015). After the first meeting with the Panel, Brazil learned that MoA Regulation 
58/2015 was no longer in force and that the restriction on the intended uses was now contained in 
MoA Regulation 34/ 2016 and MoT Regulation 05/2016 (as amended by MoT Regulation 37/2016). 
In August, Indonesia enacted MoT Regulation 59/2016, replacing the previously amended MoT 
Regulation 05/2016.  
21. After all the aforementioned legislative changes, Indonesia now claims  that the intended use 
requirement no longer exists because, under the current regime, frozen or chilled chicken meat 
and chicken products can be sold in any Indonesian market, provided it has a cold storage facility.  
22. Yet, the introduction of the expr ession "markets with cold chain facility" among the intended 
uses does not alter the prohibition in place. Instead of an outright prohibition as in the previous 
legislation, Indonesia enacted a tailor -made legislation with minor effects on the improvement of 
the competitive opportunities available for imported products. The market for imported chicken 
remains as niche markets, and the most relevant part of the marketplace continues to be allocated 
only for local producers.  
23. Moreover, MoA Regulation 34/2 016 introduced additional features, which reinforces the 
restriction caused by the intended uses. For instance, it now requires importers, when applying for 
an Import Recommendation, to submit a distribution plan for the imported meat, which shall 
include in advance information on the type of meat, the quantity, the name and address of the 
establishments/buyers and the product's price. As expected, the list of buyers included in the 
distribution plan shall only be among those of the allowed intended uses. T o reinforce compliance, 
the same Regulation requires importers to submit weekly distribution reports ("every Thursday") 
to confirm that the products were not redirected to other purposes. Importers appear to be now 
tied to the terms of the distribution pla n and any deviation to it may subject to sanctions, including 
a one -year import suspension.  
(4) Indonesia 's restrictive import licensing procedures  
24. The complex and burdensome Indonesian import licensing regime requires the importer to 
obtain various approvals, authorizations and recommendations, largely granted on the discretion 
of different authorities. Firstly, an importer has to obtain an Importer Identification Number (API -
U, for chicken), which has a period of validity of 5 years, after which it has to be renewed. For 
that, the importer must submit a re -registration to the issuing agency at the latest 30 (thirty) 
business days after the period of 5 years. The business operator that holds an API -U is constrained 
to report about the import realizati on once every 3 months to the Head of Provincial Agency and to 
the Head of District/Municipal Agency having jurisdiction over the company's domicile. If a 
company fails to do so then the API -U shall be suspended. The API -U shall be revoked if it is 
suspend ed twice or if the company fails to perform the obligation to report the import realization 
(every 3 months) not later than 30 days as of the suspension date, submits untrue information or 
data in the document of application, breaches the provisions in the  prevailing legislation in import 
sector, and abuses the document of import and the letters related to import. These possibilities of 
suspension and/or revocation of the API -U reinforce the control of the Indonesian authorities over WT/DS484/R/Add.1  
 
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  the importation, what d irectly affects the importation of chicken meat and chicken products, 
increasing the lack of predictability of the regime and causing restrictions on market access.  
25. Secondly, after obtaining an API -U, an importer of chicken products must obtain a MoF 
Registration before the Director General of Customs and Excise. MoF Decree 454/2002 determines 
the need to hold a customs registration (SRP) valid in Indonesia 's customs areas as a requirement 
for undertaking customs activities in the importation. Thirdly, once the registration procedures are 
completed, the importer must apply for a MoA Import Recommendation, but only for products 
included in the list of authorized products to be imported. All the products not listed in these 
Appendices are therefore automat ically banned from the Indonesian market, as they cannot be 
imported without this Recommendation. Fourthly, For the products that can obtain a MoA Import 
Recommendation, several requirements have to be fulfilled by the importer. Some of them, such 
as the V eterinary Control Number and the Livestock and Animal Health Registration Certificate or 
Business License require previous and complex démarches . Moreover, in order to obtain a MoA 
Import Recommendation, an importer must demonstrate, through a "statement l etter with stamp 
duty affixed, accompanied with supporting document of the ownership of cold storage and 
refrigerated vehicle", and also prove – through an assignment letter or work contract – that it 
employs a veterinarian with competency to supervise the  imported products. Besides that, 
importers of chicken meat and chicken products must also submit a letter of recommendation from 
the provincial livestock services office, which amounts to a certification that the importer has been 
supervised by the compet ent veterinarian. The provincial livestock services office has discretionary 
power to issue or not the letter of recommendation.  
26. Another requirement is the report of import realization from the previous period. The 
importer shall demonstrate that the t ransactions carried out during this period met the fixed terms 
established by previous MoA Import Recommendations related to business units, port of discharge, 
and type and origin of the goods covered by them.  
27. Indonesias regulation establish also that  in order to obtain a Recommendation the importer 
must necessarily indicate the "intended use " for the products to be imported, which by itself is a 
requirement that imposes an important restriction on trade.  
28. The issuance of a MoA Import Recommendation  "for meat and processed meat products" is 
under additional requirements, as supervision on the compliance of veterinary public health 
requirements shall be performed. It is not clear whether the authority responsible for issuing the 
MoA Import Recommendat ion is required to base the decision on the conclusions of the report of 
the veterinary public health supervisor.  
29. The requirements to obtain a MoA Import Recommendation are far from being the only 
problem.  After the MoA Import Recommendation is issued , no changes or amendments related 
to the country of origin, business unit of origin, port of discharge, type/category of product are 
allowed. If the importers, for any reason, modify any of these "fixed license terms", Indonesia 
regulations establishes th at they shall be sanctioned by the "revocation of [his] recommendation" 
and the "denial of [his] next recommendation application".  
30.  Moreover, the time window for imports is drastically reduced in Indonesia since they can 
only take place during the vali dity period of both the MoT Import Approval and the MoA Import 
Recommendation, which now is 6 months each at maximum. During this short period, the importer 
must complete the entire import transaction authorized by both documents by loading, shipping, 
transporting, delivering, and clearing at the customs the imported goods.  
31. As it is the case for the MoA Import Recommendation, once the MoT Import Approval is 
issued, it cannot be modified. The importer who fails to comply with the "fixed license terms" is  
subject to several sanctions, including the revocation of the Approval and the impossibility of 
submitting new requests. Ff an Approval is revoked, the importer may only re -submit the 
application after 1 year.  
32.  Even under the current regime establishe d by MoA  Regulation 34/2016 and MoT 
Regulation,59/2016 , these restrictive features of Indonesia´s import licensing  regime – that were 
existent under   MoA  Regulation 139/2014; MoT Regulation 46/2013, MoA Regulation 58/2015 
Regulation MoT 05/2016,  rece ntly modified have not been fundamentally altered. Although the WT/DS484/R/Add.1  
 
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  seemly elimination of the application, windows could be considered a positive development, the 
validity period of Import Recommendation and of the Import Approval are still short (6 months), 
the positive list and the intended use, albeit in a different form are still and place and the fixed 
license terms have not experienced any change.  Moreover, as import approvals can only be 
obtained after the issuance of an import recommendation and the ap plication must be submitted 
within three months after the issuance of the corresponding Import Recommendation, an Import 
Approval cannot be obtained at "any time ".These  elements are part and parcel of the same import 
licensing regime, which means that the ir trade restrictiveness need to be assessed as if they were 
one single measure.   
(5) Undue delay with regard to the approval of sanitary requirements  
33. According to the Indonesian legislation (Articles 35 and 36 of MoA Regulation 58/2015), it is 
not p ossible to import chicken meat and chicken products into Indonesia without a health 
certificate approved by the country. As mentioned above, since 2009 Brazil has been striving to 
negotiate with Indonesia the terms of a veterinary certificate for poultry, in order to allow Brazilian 
exports of those products to enter the Indonesian market. The proposal was based on the 
international standards applicable and encompassed the sanitary requirements established by 
Indonesia 's legislation. Indonesia has not provi ded a satisfactory clarification on the sanitary 
reasons why the Brazilian products were not allowed into Indonesia.  
(6) Restrictions on the transportation of imported products  
34. According to Article 20(a) of MoA Regulation 58/2015 (now replaced by Arti cle 19(a) of MoA 
Regulation 34/2016), the transportation of carcass, meat and/or processed products shall be 
"conducted directly from the country of origin to the port of discharge within the territory of 
Indonesia ". If the transportation is not direct, or , by any reason, a stop in a third country or port 
during the transportation is necessary before the arrival at the port of destination, the products 
will not be allowed to be imported into Indonesia. Products will be refused even in the case of force 
majeure that may deviate the shipment to a third -country port for transit.  
(7) Discriminatory implementation of halal labelling requirements  
35. Indonesia requires that all products that enter, circulate and are traded in the country must 
be certified halal. To that end all food products must be adequately labelled halal on the product's 
packaging. This legal requirement applies indistinctively to both imported and like domestic 
products. However, the implementation of this requirement is clearly discriminator y. While 
imported products have to comply with the labelling requirements before importing is authorized, 
domestic products are not subject to this strict requirement. According to a local expert, domestic 
producers, particularly in the wet market, do not generally attach any label or food packaging (i.e. 
do not follow the requirements stipulated by the relevant laws and regulations). In addition, only 
rarely does the Indonesian supervision authority check compliance with the halal labelling 
requirement in wet markets and non -official slaughterhouses. Brazil takes no issue with halal 
certification and labelling. It is concerned with the fact that Indonesia accords treatment less 
favorable to imported products.  
IV.  LEGAL CLAIMS  
1. Claims related to border me asures which create trade restrictions  
36. Indonesia adopts several measures which prohibit and/or restrict the importation of the 
products at issue. These measures, combined and individually, impose a general ban on the 
Brazilian products in violation of  Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on 
Agriculture (AoA). Indonesia's import licensing procedures also amount to a non -automatic 
licensing regime whose application and administration causes trade -restrictive effects on imports 
in violation of Article 3.2 of the Agreement on Import Licensing Procedures (ILA).  WT/DS484/R/Add.1  
 
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  1.1. Relevant legal standard  
(a) Article XI:1 of the GATT 1994  
37. Article XI:1 encompasses "prohibitions " or "restrictions " which are made effective through 
"quotas ", "impor t or export licenses " or any "other measures ". The Panel in India – Quantitative 
Restrictions (para. 5.129) said that "the text of Article XI:1 is very broad in scope, providing for a 
general ban on import or export restrictions or prohibitions ‘other than  duties, taxes or other 
charges '" and "the term ‘restriction ' is also broad, as seen in its ordinary meaning, which is 'a 
limitation on action, a limiting condition or regulation' ". 
38. In light of this broad scope, the fact that a measure does not totally  prevent the imports or 
does not encompass the application of prohibited additional duties does not mean per se  that there 
is no violation of that provision. The Appellate Body has indicated that the scope of Article XI:1 
includes measures through which a prohibition or restriction is produced or becomes operative. 
Likewise, a violation of Article XI:1 may occur even when there is no specific threshold established 
limiting imports or exports. Actually, Article XI:1 does not require a showing of the measure 's 
effects on trade volumes. A Member's regulation establishing, directly or indirectly, a "positive list" 
or certain binding "intended uses" would, in this sense, qualify as a quantitative restriction.  
39. A number of panels have considered the reference t o "other measures" in Article XI:1 as a 
"broad residual category" which encompasses different types of measures instituted or maintained 
by a WTO Member with the ability to prohibit or restrict the importation of products. This broad 
category would encompa ss unwritten measures as well. In Argentina – Import Measures  (para 
6.248), the Panel found that the Trade -Related Requirements (TRRs measure), imposed by 
Argentina through the combined effect of different measures, fell within the meaning of "other 
measur es", as provided for in Article XI:1 of the GATT 1994.  
(b) Article 4.2 of the Agreement on Agriculture  
40. Article 4.2 of the AoA establishes that Members "must not continue to apply measures 
covered by Article 4.2 from the date of entry into force of th e WTO Agreement " ("maintain "), 
"must not introduce new measures ‘of the kind ' that it has not had in place in the past " ("resort 
to"), and "may not, at some later stage after the entry into force of the WTO, re -enact measures 
prohibited by Article 4.2 ( "revert to "). The footnote 1 of Article 4.2 provides examples of these 
measures: 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. Brazil 
finds relevant the guidance of previous jurisprudence on the scope of the following terms: 
"quantitative import restrictions", "discretionary import licensi ng", and "similar border measures 
other than ordinary customs duties".  
41. With regard to the meaning of "quantitative import restrictions", the Panel in Turkey – Rice 
(para 7.120)  considered that measures that affect the quantities of product that can be imported 
undoubtedly qualify as a quantitative import restriction, even when this effect is caused by the 
"lack of transparency and lack of predictability" of a Member's measure. The Panel in Turkey – Rice 
(para 7.133) also interpreted the expression "disc retionary import licensing" as encompassing "the 
discretionary use by authorities in an importing country of the concession, or refusal to grant, a 
particular document which is necessary for the importation of a good, as an instrument to 
administer trade."  As for the meaning of "similar border measures other than ordinary customs 
duties", the Appellate Body in Chile – Price Band System  (para. 227) explained that an 
inconsistency with Article 4.2 can be established when it is possible to identify border meas ures 
similar to the measures explicitly identified in footnote 1. The border measures listed in footnote 1 
all "have in common the object and effect of restricting the volumes, and distorting the prices of 
imports of agricultural products in ways different  from the ways that ordinary customs duties do". 
As the function of Article 4.2 and footnote 1 is "to enhance market access for agricultural 
products ",1 any measure which has the object and effect of restricting market access, limiting 
import volumes and d istorting the prices of imports would be inconsistent with Article 4.2 of the 
AoA. 
                                                
1 Appellate Body Report, Chile – Price Band System (21.5) , para. 215.  WT/DS484/R/Add.1  
 
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  (c) Article 3.2 of the Agreement on Import Licensing Procedures  
42. Article 1.1 of the ILA defines import licensing as the administrative procedures through 
which a busines s operator submits an import application or other documentation (other than that 
required for customs purposes) to the relevant administrative body as a prior condition for 
importation. Article 1.2 provides the general principle that should inform any lice nsing procedure: 
"Members shall ensure that the administrative procedures used to implement import licensing 
regimes are in conformity with the relevant provisions of GATT 1994 … with a view to preventing 
trade distortions that may arise from an inappropri ate operation of those procedures".  This 
principle is also confirmed by Article 1.3 of ILA, which establishes a requirement that the rules for 
import licensing shall be neutral in "application and administered in a fair and equitable manner".  
43. The ILA  also regulates two types of licensing procedures: automatic and non -automatic. 
Automatic import licensing is a procedure where approval of the application is granted in all cases, 
which means that the administrative authorities have no discretion to decid e whether to grant or 
not the license. A non -automatic licensing regime is defined by exclusion, which means that in this 
case the importing country has the discretion to grant or not the import license. Normally, non -
automatic licensing procedures are use d when there is a restrictive condition in place on the 
imports, such as tariff rate quotas (TRQs), which gives rise to imports controls.   
44. Besides complying with the general principles established in Articles 1.2 and 1.3, Article 3.2 
of the ILA provid es, in relation to non -automatic licensing, that Members shall not establish 
licensing procedures that impose additional restrictions to those already caused by the underlying 
measure it implements. In order to assess a violation of Article 3.2, it is nece ssary to show a 
"decline in market share " and "a causal relationship between the licensing procedures and the 
trade distortion "2  Moreover, Article 3.2 of ILA requires that the non -automatic licensing 
procedures shall not be more administratively burdensom e than absolutely necessary to 
administer the measure they are used to implement. Thus, the determination of this "measure" is 
crucial for the assessment of whether it is more burdensome or not than necessary in the context 
of this provision.  
1.2 Legal ana lysis 
(a) The general prohibition is a border restriction inconsistent with Article XI:1 of the 
GATT 1994 and Article 4.2 of the Agreement on Agriculture  
45. Brazil submits that the combined effect of several different individual measures adopted by 
Indone sia in relation to chicken meat and chicken products amounts to a general prohibition on 
the importation of these products from Brazil. Combined, these measures constitute "prohibitions 
or restrictions other than duties, taxes or other charges made effecti ve through quotas, import or 
export licenses or other measures" within the meaning of Article XI:1 of the GATT 1994. Indonesia 
has relentlessly created several obstacles to impede the importation of the products at issue 
through a comprehensive assortment of combined measures which established an institutional and 
procedural "wall" that has totally banned the importation of Brazilian chicken meat and chicken 
products. These measures reflect Indonesia's general policy objective of protecting the local 
produc tion of chicken meat and chicken products in order to achieve self -sufficiency.  
46. In Argentina – Import Measures, the Panel and the Appellate Body dealt with a similar 
situation. The Panel established a framework of analysis in order to assess whether A rgentina's 
unwritten measure had a limiting effect on imports and were affecting the competitive 
opportunities protected by Article XI:1. Firstly, it established that the measure at issue restricted 
market access. Secondly, that it created uncertainty as t o an applicant's ability to import. Thirdly, 
the Panel concluded that the measure prevented companies to import as much as they desired or 
needed without regard to their export performance. Finally, it imposed a significant burden on 
importers that was unr elated to their normal importing activity.  
47. The Indonesian general prohibition on Brazilian imports of chicken meat and chicken 
products meets all these criteria. Indonesia only authorizes the importation of products specifically 
referred to in a "posit ive list" that does not include all the products at issue. And, even so, this 
                                                
2 Appellate Bod y Report, EC – Poultry , paras. 126 -127. WT/DS484/R/Add.1  
 
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  importation shall only take place in case of insufficiency of local production and for very specific 
intended uses, which clearly restrict market access conditions. Market access  is also limited by the 
fact that Indonesia has unduly delayed the approval of a health certificate that would allow 
Brazilian exports. Additionally, imports of chicken meat and chicken products are subject to a set 
of restrictive import licensing procedur es that have created uncertainty to importers and imposed 
on them a significant burden which is unrelated to other importing controls, making importations 
extremely difficult. For all these reasons, the general prohibition on imports is inconsistent with 
Article XI:1 of the GATT 1994.  
48. The Panels in India – Quantitative Restrictions (paras. 5.241 – 5.242)  and Korea – Various 
Measures on Beef (para 762)  established that a measure that had been found to violate Article 
XI:1 was also to be considered in vio lation of Article 4.2 of the AoA, to the extent it applies to 
agricultural products. All the products at issue are undoubtedly covered by the AoA. Therefore 
Brazil submits that Indonesia 's general prohibition on the importation of chicken meat and chicken 
products is also inconsistent with Article 4.2 of the AoA.  
49. Should the Panel opt to carry an independent analysis of Article 4.2, Brazil contends that the 
general prohibition clearly imposes a "quantitative import restriction" within the meaning of tha t 
provision. Combined, the individual measures adopted by Indonesia have the object and effect of 
restricting the volumes and distorting the prices of imports of agricultural products in ways 
different from the ways that ordinary customs duties do in the s ense of the Appellate Body's 
understanding in Chile – Price Band System . Due to this general prohibition, Brazil has not been 
able to export chicken to Indonesia since 2009.  
50. In the case Indonesia's general prohibition is not found by the Panel to const itute a 
"quantitative import restriction ", it still constitute a "similar border measure other than ordinary 
customs duties " within the meaning of footnote 1 of Article 4.2, as it has "characteristics in 
common with a quantitative import restriction " and l imit opportunities for importation of the 
products at issue.  
51. Indonesia argued that to demonstrate a violation of Article 4.2 of the AoA, the complainant 
has the burden of establishing that the measure is not justified under Article XX of the GATT 1994 
("or other general, non -agriculture -specific provisions of the GATT").  
52. Brazil is puzzled by Indonesia's reasoning. The Appellate Body jurisprudence confirms 
exactly the opposite, i.e. that the burden to establish an affirmative defense under Article X X 
belongs to the respondent. Brazil fails to see how the nature of Article XX would be transformed 
from an affirmative defense (the burden of which lies with the respondent) into something else 
(whose inexistence the complainant should prove). Brazil is no t aware of a single instance, in more 
than 20 years of WTO litigation and almost 70 years of dispute settlement including the GATT 
years, where the burden of proof under Article XX has been reversed from the responding party to 
the complainant. More broadl y, Brazil ignores examples of panels or the Appellate Body requiring 
from a party – either party – to prove a negative, as Indonesia suggests Brazil is required to do. 
The reason is simple: it is a general principle of law that the party arguing the affirm ative of a 
proposition has the burden to prove the basis and content of such proposition.  
53. Article 4.2 of the AoA requires the complainant to establish that the respondent maintains a 
measure of the kind which has been required to be converted into ordi nary customs duties, such 
as, inter alia, quantitative import restrictions. It would be then to the respondent to demonstrate 
that the relevant measure is not maintained under any GATT exception. In the present dispute, 
Brazil has established that Indonesi a maintains restrictions on imports of chicken meat and 
chicken products covered by Article 4.2. Indonesia has never argued, much less demonstrated, 
that this measure is justified under Article XX of the GATT 1994 or any other general, non -
agriculture -specific provisions of the GATT 1994, and Brazil has no information to the effect that 
this might be the case.  WT/DS484/R/Add.1  
 
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  (b) The individual measures are each a border restriction inconsistent with Article XI:1 
of the GATT 1994 and Article 4.2 of the Agreement on Agricu lture  
(i)  Positive list  
54. Article XI:1 covers any measures which institute or maintain a "prohibition or restriction 
other than duties, taxes or other charges on the importation of any product". The impossibility of 
importation of the products not liste d amounts to an import ban. Through the positive list, 
Indonesia maintains a prohibition other than "duties, taxes or other charges " equivalent to a zero 
quota which is incompatible with Article XI:1 of the GATT 1994.  
55. The positive list also amounts to  a "quantitative import restriction" or a "similar border 
measure other than ordinary customs duties" and is inconsistent with Article 4.2 of the AoA. This 
measure undoubtedly contributes to restrict the volume of imports, to limit the quantities of the 
product that can be imported. Actually, it has prevented all imports of Brazilian chicken cuts and 
other prepared or preserved chicken meat, which constitutes the extreme type of "quantitative 
import restriction" prohibited by Article 4.2.  
56. The Panels in  India – Quantitative Restrictions and Korea – Various Measures on Beef 
established that a measure that had been found to violate Article XI:1 was also to be considered in 
violation of Article 4.2 of the AoA to the extent it applies to agricultural product s. Therefore, the 
positive list is inconsistent with Article 4.2 of the AoA.  
57. Should the Panel opt to carry out an independent analysis of Article 4.2, Brazil contends that 
this measure clearly imposes a "quantitative import restriction" within the mean ing of that 
provision, as it has the object and effect of restricting the volumes, and distorting the prices of 
imports of agricultural products in ways different from the ways that ordinary customs duties do. 
In the case the positive list is not found to constitute a "quantitative import restriction ", it 
constitutes a "similar border measure other than ordinary customs duties " within the meaning of 
footnote 1 of Article 4.2, as it has characteristics in common with a quantitative import restriction 
and lim its the opportunities for importation.  
58. During the Panel 's proceedings, Indonesia argued that the positive list requirement no 
longer exits. Brazil submits that the amendments introduced simply allow Indonesian authorities 
the discretionary power to det ermine which chicken products could receive a MoA 
Recommendation and a MoT Import Approval. They do not ensure access to all types of chicken 
meat and chicken products, as required by Article XI:1 of the GATT 1994 and Article 4.2. In 
addition, the new piec es of legislation do not provide any guidance for importers in relation to 
what is to be regarded as "the requirements of safe, healthy, wholesome and halal ". These 
changes not only kept in place the positive list, but also introduced new discretionary ele ments in 
the issuance of the import license.  
(ii) Intended use  
59. According to Indonesia's legislation, the chicken meat and chicken products that can be 
imported into Indonesia can only be destined to very specific uses. This measure has an important 
"limiting effect" on imports that falls squarely in the ambit of Article XI:1. As recognized by the 
Panel in Colombia – Ports of Entry  (para. 7.240) any measures that have "implications on the 
competitive situation of an importer", creating uncertainties, aff ecting investment plans or 
restricting market access for imports is under the scope of this provision.  
60. As the Panel in China – Raw Materials  (para 7.1081) established, to be considered a 
restriction it is not even necessary that the measure has an actu al impact on trade flows. The very 
potential to limit trade is sufficient to constitute a restriction within the meaning of Article XI:1. 
Moreover, since this restriction is not applied for domestic products, by its very design and 
structure, this measure prevents "whole chicken, fresh or frozen" to have the same competitive 
opportunities than those granted to the domestic like products.  
61. The limitation on the intended uses, as well as the sanctions imposed for breaches of the 
original uses registered in  the Recommendation, impose a limiting condition which adversely 
affects the market access to imported products in violation of Article XI:1.  WT/DS484/R/Add.1  
 
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  62. This restriction also amounts to a "quantitative import restriction" and is inconsistent with 
Article 4.2 of t he AoA, as it contributes "to restrict the volume of imports" by limiting the 
quantities of product that can be imported, which is in contradiction of the very purposes of Article 
4.2 of improving market access to agriculture products.  
63. In the case Indo nesia's restriction on the intended use is not found to be a "quantitative 
import restriction ", it still constitutes a "similar border measure other than ordinary customs 
duties " within the meaning of footnote 1 of Article 4.2 of the AoA, as it has "charac teristics in 
common with a quantitative import restriction" and limits the opportunities for imports.  
(iii) Indonesia's restrictive import licensing procedures  
64. Several elements of the Indonesian import licensing regime impose unduly restrictions on 
the importation of chicken meat and chicken products. The positive list and the intended use 
requirements have already been demonstrated above to violate Article XI:1 of the GATT 1994 and 
Article 4.2 of the AoA. Brazil addresses below the negative effects of the limited application 
windows, the short validity periods and the fixed license terms of the MoA Import 
Recommendation and the MoT Import Approval on the competitive opportunities for imports.  
65. Indonesia imposes limited (and short) application window s for importers to obtain 
authorization to import. Since the validity period itself of the Recommendations is also very limited 
(only 4 months), the importer has to apply for new Recommendations 3 times per year, at every 
new application window.  
66. Even with less than abundant factual evidence on how this system operates in practice, due 
to the de facto  import ban on Brazilian products, there is no doubt that the limited application 
windows and validity periods have restricting effects on imports. Firstly , importers are not allowed 
to submit an application whenever a business opportunity occurs. Secondly, the system prevents, 
in practice, exports during the beginning of each validity period, as import transactions can only be 
carried out after the issuance  of the MoA Import Recommendation and the MoT Import Approval. 
Considering also that shipments have to reflect exactly the terms of both authorizations, shipping 
operations can only be made after the commencement of the short 4 -month validity period. For 
Brazil, this has a particular limiting effect, as the whole export procedures from Brazil to Indonesia 
are estimated to take on average 100 days, limiting the access to the Indonesian market to 
basically 20 days. In sum, there is a "dead zone" comprising mo st of the 4 -month validity period 
during which no product can enter the Indonesian market. This implies also that exporters will not 
be able to dispatch more than one shipment of the products at each validity period.  
67. This limiting effect is aggravated by the fact that both authorizations have fixed terms. Once 
those documents are issued, no changes or amendments are allowed. By the time the importers 
apply for these authorizations, all information related to the covered transactions has to be 
precisely defined in advance, what is not in accordance with market practices. The importer who 
fails to comply with these "fixed license terms" is subject to several sanctions and its exports will 
be refused at the entry port. As no adjustments in the terms of the licensing can be made to 
respond to new business opportunities during the validity period, this requirement also impedes 
the importers to have the necessary flexibility to respond to changes in market conditions, thereby 
imposing a severe limitation on imp orts.  
68. Based on the findings in Argentina – Import Measures , Brazil submits that these aspects of 
the import licensing regime (limited application windows and validity periods, and fixed license 
terms) violate Article XI:1 because they (a) unduly restr ict market access for Brazilian products; 
(b) create uncertainty as to an applicant's ability to import, which depends on the issuance of the 
import licenses to take all other necessary steps related to importation and also carry them out 
within the short 4-month validity period; and (c) impose a significant burden on importers that is 
unrelated to their normal importing activity.  
69. These elements of Indonesia 's import licensing regime, together with the positive list, the 
intended use and the discretiona ry aspect of the import licensing regime also operate as a 
quantitative import restriction in the sense of footnote 1 of Article 4.2, as they represent a severe 
restriction on the volume of Brazilian exports, in blatant contradiction with the main objectiv e of 
that agreement which is to enhance market access for agricultural products.  WT/DS484/R/Add.1  
 
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  70. In the case these aspects of Indonesia's license regime are not found to constitute a 
"quantitative import restriction ", they still constitute a "similar border measure o ther than ordinary 
customs duties " within the meaning of footnote 1, as they are similar to a quantitative import 
restriction in a manner inconsistent with Article 4.2.  
71. Moreover, some requirements of Indonesia 's import licensing regime, by their very d esign, 
encompass "the discretionary use by authorities of the concession or refusal to grant the 
documents required " for importation, such as those related to: (i) a letter of recommendation from 
provincial livestock services office; (ii) supervision on th e compliance of veterinary requirements; 
and (iii) the stipulation of the "amount" to be imported per Business Player. As interpreted by the 
Panel in Turkey -Rice, these requirements fall squarely into the definition of "discretionary import 
licensing" of f ootnote 1 of Article 4.2.  
72. If the Panel does not consider these requirements as a "discretionary import licensing" under 
footnote 1, they still constitute a "similar border measure other than ordinary customs duties", as 
they are similar to discretiona ry import licensing within the meaning of footnote 1. For all the 
reasons above, Brazil submits that the aspects mentioned above of Indonesia 's import licensing 
regime are inconsistent with Article 4.2 of the Agreement on Agriculture.  
(iv) Restrictions on the transportation of imported products  
73. As mentioned above, the transportation of carcass, meat and/or processed products shall be 
"conducted directly from the country of origin to the port of discharge within the territory of 
Indonesia ". If the transp ortation is not straight to Indonesia or, by any reason (including force 
majeure  events), it is necessary to stop in a third country or port before it arrives at the 
Indonesian port, then the products will not be allowed to be imported.  
74. This restrictio n has a clear "limiting effect" on the importation of the products at issue. Due 
to the long distance between Brazil and Indonesia, the vessels need at least one stop in a third 
country or port before going to the indicated port of entry in Indonesia. Sinc e there are no direct 
vessel lines from Brazil to Indonesia, this requirement amounts to a virtual ban to Brazilian 
products. Even if it were possible to export from Brazil directly to Indonesia, this direct 
transportation requirement would largely increas e the transportation costs of the Brazilian product 
and thus "discourage importation" which, according to the findings of the Panel in Argentina – 
Import Measures , is inconsistent with Article XI:1 of GATT 1994.  
75. This measure also clearly operates as a  "quantitative import restriction" within the meaning 
of Article 4.2, as the costs and logistics involved in this direct transportation requirement 
discourages exports from distant countries, contributing, thus, to restrict the volume of imports. 
As Brazil ian exports to Indonesia would take at least 100 days and would necessarily pass through 
third country ports, this requirement could not be fulfilled by Brazilian exporters, amounting to a 
complete ban of imports of Brazilian products in the Indonesian mar ket, which cannot be justified 
under the Agreement on Agriculture.  
76. In the case Indonesia's direct transportation requirement is not found to be a "quantitative 
import restriction ", it still constitutes a "similar border measure other than ordinary cust oms 
duties " within the meaning of footnote 1 of Article 4.2, as it has "characteristics in common with a 
quantitative import restriction" and limits opportunities for importation of chicken meat and 
chicken products. The Indonesian direct transportation re quirement is inconsistent with the 
agricultural market access obligation of Article 4.2.   
77. During the Panel 's proceedings, Indonesia has suggested that "direct " does not have its 
ordinary meaning, but may be used in the same manner as it is used in the  airline industry. A 
direct flight is one that may make stops and pick up additional passengers but the original 
passengers do not leave the plane. Also, this requirement should be read in the context of the 
other provisions in the same Article, which woul d suggest that transit is, in fact, allowed.  
78. Firstly, the plain reading of Article 19(a) of MoA Regulation 34/2016 does not support the 
conclusion that transit would be allowed by the Indonesian authorities. There is not a logical 
connection (or any c onnection at all) identified in the specified provision that infers that the direct 
transportation requirement must be interpreted together with the provisions that regulate WT/DS484/R/Add.1  
 
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  quarantine. This generates uncertainty to exporters and economic operators, as the y may not 
have a legal remedy should their exports be prevented from entering Indonesia because they did 
not travel a direct route.  Secondly, the way Indonesia has described its direct transportation 
requirement, as a flight that "makes stops and pick up additional passengers but the original 
passengers do not leave the plane ", seems to imply that transshipment is not included in 
Indonesia 's definition of transit. If this is the case, then the restrictions to transshipment is also a 
quantitative restrictio n inconsistent with Article XI:1 and 4.2 of the AoA. Finally, even if transit 
(and transshipment) is allowed in practice, the legal uncertainties generated by the murky 
language of Regulation Article 19(a) of MoA Regulation 34/2016 also amount to a quantit ative 
restriction inconsistent with those Articles.  
(c) Indonesia's import licensing procedures impose a border restriction inconsistent 
with the obligations under the Agreement on Import Licensing Procedures  
79. Brazil takes issue with the following meas ures that restrict/prohibit imports of chicken meat 
and chicken products: (i) positive list of products allowed to be imported; (ii) intended uses; (iii) 
limited (and short) application periods and validity periods of the MoA Import Recommendation 
and MoT Import Approvals; (iv) fixed license terms; and (v) discretionary import licensing. In 
addition of breaching Article XI:1 of the GATT 1994 and Article 4.2 of the AoA, these measures are 
also inconsistent with Article 3.2 of the ILA.   
80. The Panel in EC – Bananas III   defined the two requirements that must be met in order to 
determine whether import licensing procedures are within the scope of Article 1.1 of the ILA: (i) 
the procedures should require the submission of an application or other documentation to the 
relevant administrative body; and (ii) the submission of an application or other documentation 
shall be a prior condition for importation.  
81. The Indonesian procedures meet the two criteria. Firstly, in order to obtain a MoA Import 
Recommendation a nd a MoT Import Approval, the importer must, among other steps, submit 
applications to different administrative bodies. Secondly, the submission of the application and the 
other required documents for the MoA Import Recommendation and MoT Import Approval a re 
clearly a condition for the importation of the products at issue into Indonesia. Both applications are 
a prior condition for importation.  
82. The ILA allows for two types of licensing procedures: (i) automatic import licensing and (ii) 
non-automatic imp ort licensing. Any licensing procedure that is not granted automatically or is 
subject to different limitations to apply and obtain a license should be considered a non -automatic 
licensing regime falling under the purview of Article 3.2 of ILA.  
83. The spe cific features of Indonesia 's import licensing procedures, such as the limited 
application windows, short validity periods, fixed license terms, the positive list, the intended use 
requirements, are sufficient to demonstrate that import recommendations and  approvals cannot 
qualify as an automatic procedure, as they are not "granted in all cases". Indonesia itself 
recognizes that its licensing procedures are aimed at addressing policy concerns (halal and 
sanitary requirements) what would suggest that such pr ocedures are non -automatic. Also some 
aspects of this regime for chicken meat and chicken products are discretionary. Therefore, 
Indonesia 's import licensing requirements are not automatic.  
84. In this context, and according to Article 3.2 of the ILA, to be consistent with WTO 
Agreements, the non -automatic procedures should be related to the implementation of a 
permissible trade restrictive measure; should not have trade restrictive effects additional to those 
caused by the imposition of the restrictive me asure; should also correspond in scope and duration 
to the measure they are used to implement and should be no more administratively burdensome 
than absolutely necessary to administer the measure.  
85. This is not the case in Indonesia. Indonesia 's import l icensing procedures are not connected 
to a permissible restrictive measure. There is no persuasive connection between halal and sanitary 
concerns with the positive list requirement, the intended use requirement, the limited and short 
application periods an d validity periods, the fixed license terms and the discretionary import 
licensing procedures. Moreover, as Indonesia itself recognized there is a range of pre -market 
procedures in place to ensure that sanitary and halal requirements are fulfilled, such as : desk WT/DS484/R/Add.1  
 
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  review to establish the sanitary conditions of the country of origin, import risk analysis, on -site 
visit inspections on business units and implementation of a halal assurance system, among others. 
Once these appropriate measures are implemented the re are no grounds in WTO rules to submit 
the importation to the challenged measures.  
86. Even if Indonesia 's procedures were applied to administer legitimate restrictions on imports, 
by its design, structure and operation the regime imposes restrictions o n the importation far 
additional than those that would be required to implement the relevant restriction in violation of 
Article 3.2 of the ILA. Besides preventing importers from applying for licenses to products not 
included in the positive list and restr icting applications for very limited intended uses, Indonesia 
prevents importers from obtaining licenses during most part of the year. These restrictions 
combined with the short validity period and the fixed license terms, imposes an unduly additional 
restriction on trade that severely affects Brazil's exports. Overall, there is a clear "causal 
relationship " between the licensing procedures and the fact that Brazil (or any other country in the 
world) has not exported chicken to Indonesia since 2009. Also, a s there is no underlying 
permissible measure, the procedures do not correspond "in scope and duration" to any "measure" 
they are supposed to implement as required by the second sentence of Article 3.2. Finally, the lack 
of transparency and predictability o f Indonesia's multi -layered import licensing procedures are 
more administratively burdensome than necessary to administer import procedures. Even 
assuming in arguendo  that the controls were justified, the operation of the procedures is far from 
being simpl e, neutral in application and administered in a fair and equitable manner as required by 
Article 1 and 3.2 of the ILA.  
87. In respect to the standard of "no more administratively burdensome than absolutely 
necessary " in Article 3.2 of the ILA, Brazil unde rstands that it is more stringent than that 
contained in Article XX of the GATT 1994. Firstly, different from the necessity test under the 
chapeau of Article XX, the second sentence of Article 3.2 of the ILA refers to burden ( "no more 
burdensome "), and not  to trade -restrictive. The trade -restrictiveness of the licensing procedures is 
examined under the first sentence of Article 3.2, which means that the second sentence must add 
to the obligations already contained under the first sentence. Secondly, the sec ond part of the 
second sentence of Article 3.2 of the ILA contains the word "absolutely ", which further limits the 
imposition of any burden on WTO Members in connection with the implementation of non -
automatic licensing procedures.  
88. Similarly, the stan dard under Article 3.2 of the ILA is also not analogous to Article 2.2 of the 
TBT Agreement, which provides that "technical regulations shall not be more trade -restrictive than 
necessary to fulfil a legitimate objective taking account of the risks non -fulfilment would create ". 
Under Article 2.2 of the TBT Agreement, the focus is on the proportionality between the trade -
restrictiveness of the technical regulation (the measure) and the risks it seeks to mitigate.  By 
contrast, Article 3.2 of the ILA focuses o n the burden of the implementation of the measure, not 
on its trade -restrictiveness. Therefore, even in situations where trade -restrictive or distortive 
effects cannot be substantiated, a non -automatic licensing regime can still violate Article 3.2 of the 
ILA if it is more burdensome than necessary.  
89. Indonesia also argued that of the five elements of its import licensing regime challenged by 
Brazil under Article 3.2 of the ILA, only the limited application and validy periods would fall under 
this agreem ent. The positive list and intended use do not fall under the ILA because they are 
substantive, rather than procedural import licensing requirements.  
90. Although the ILA distinguishes between administrative procedures (import licensing) and the 
substantiv e rules (the measures) these procedures are meant to administer, Brazil considers that 
this distinction does not apply in the present case. The dividing line between substantive and 
procedural requirements is somewhat blurred in relation to the challenged elements of Indonesia 's 
import licensing regime. For instance, the positive list requirement establishes a quantitative 
restriction on the importation and could be considered a "substantive measure ", though not 
permissible under WTO rules. Yet, it also obl iges, as a prior condition for importation, the importer 
to submit documentation attesting that the products are included in positive list. In other words, 
there is also an administrative procedure attached to the implementation of the positive list 
requir ement that falls squarely under the scope of the ILA.  
91. What makes it difficult to distinguish between procedural and substantive requirements is 
the fact that there is no clear permissible measure Indonesia 's import licensing regime is meant to WT/DS484/R/Add.1  
 
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  impleme nt. Even if one considers the positive list requirement as the measure the administrative 
procedures are meant to implement, the question then becomes whether this requirement is 
permissible: as the positive list is in violation of Article XI:1 and Article  4.2, it cannot constitute a 
measure within the meaning of Article 3.2 of the ILA.  
92. Due to this specific feature of Indonesia 's import licensing regime, there are several 
instances of grey zones where the requirements could be characterized both as sub stantive and 
procedural, and, in this sense, not only do they violate the substantive provisions of WTO 
Agreements, but also pertain to procedural provisions regulated by the ILA.  
2. Claims related to discriminatory treatment  
2.1. Relevant legal standard  
93. Article III:4 of the GATT 1994 enshrines the basic national treatment obligation which states 
that internal measures must not be applied so as to afford protection to domestic production. 
Viewed as a cornerstone of the WTO multilateral trading system, it encompasses the obligation to 
provide equality of competitive opportunities for both imported and like domestic products.  
94. The Appellate Body in Korea – Various Measures on Beef  provided a reliable guidance to 
determine the existence of a violation o f Article III:4. It ruled that three elements must be 
satisfied: (i) the imported and domestic products at issue must be "like products"; (ii) the measure 
at issue must be a "law, regulation, or requirement affecting their internal sale, offering for sale,  
purchase, transportation, distribution or use"; and (iii) the imported products are accorded "less 
favourable" treatment than that accorded to like domestic products.  
95. In what regards the first element, there is a reiterated understanding in WTO jurisp rudence 
that if origin is the only factor distinguishing between imported and domestic products, there is no 
need to conduct a full likeness analysis using the traditional criteria set out in the GATT panel 
report in Border Tax Measures . In these cases, in  which the foreign origin of the imported product 
is the sole distinctive element, the imported and domestic products are considered to be "like" for 
purposes of Article III:4, and the Panel need not go over the details of the competitive relationship 
between them.  
96. As for the second element, it must be established whether the measure could be viewed as a 
"law, regulation or requirement". Panels have agreed on the definition of "regulation" as any 
provision which is mandatory and applies across the boar d.3 However, the core of the analysis is 
on the laws which "affect" the specific transactions, activities and uses mentioned in the provision. 
Thus, the word "affecting" is central to the analysis because it makes the link between the type of 
government ac tion and the transactions, activities and uses relating to the like imported and 
domestic products in the marketplace.  
97. The Appellate Body has ruled that the word "affecting" has a broad scope of application and 
interpreted it as a measure which has "a n effect on" something.4 This understanding indicates that 
any law, regulation etc. that has "an effect on" the internal sale, offering for sale, purchase, 
transportation, distribution or use of the like products falls within the scope of Article III:4. 
Additionally, the word "affecting" has also been interpreted to cover not only measures which 
directly  regulate the specific activities listed in Article III:4 but also any laws or regulations which 
might adversely modify the conditions of competition or cre ate incentives or disincentives between 
the domestic and imported products.5 
98. With regard to the third element, the Appellate Body decided that to determine whether or 
not imported products are treated "less favourably" than like domestic products, it w ould be 
                                                
3 Panel Report, China – Publications Audiovisual Products , para. 7.1513. Panel Reports, China – Auto 
Parts, para. 7.239 (citing: GATT Panel Report on Canada – FIRA, para. 5.5; Panel Report, India – Autos , para. 
7.181 ). 
4 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 209 -210. 
5 Panel Reports, China – Auto Parts , para. 7.251; Panel Report, China – Publications and Audiovisual 
Products , para. 7.1450.  WT/DS484/R/Add.1  
 
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  necessary to assess whether a measure modifies the conditions of competition in the relevant 
market to the detriment of imported products.6  
2.2. Legal Analysis  
(a) The restrictions on the intended uses violates Article III:4  
99. As previously det ailed, MoA Regulation 58/2015 imposes restrictions on the possible uses of 
imported chicken meat and chicken products, while no such restrictions are imposed on domestic 
like products. Considering that the origin of products is the only distinguishing elem ent for the 
imposition of this restriction, imported and domestic chicken meat and chicken products are "like" 
for the purposes of Article III:4 and that the Panel do not need to analyze the details of the 
competitive relationship between them.  
100. Indon esia insists that imported frozen or chilled chicken and domestic fresh chicken are not 
like products and could not have the same treatment. Domestic products are offered for sale fresh 
while products imported from Brazil would necessarily be frozen. Brazi lian chicken could not be 
offered for sale in markets not equipped with cold -chain systems, as Indonesia would not be able 
to ensure compliance with its sanitary and halal requirements.   
101. Indonesia's arguments are groundless. Article 31(1) of MoA Regu lation 58/2015 makes no 
reference whatsoever to "fresh", "frozen " or "chilled " products. This provision is applicable to all 
imported carcass and meat products, and the only distinctive criterion to restrict products to 
certain intended uses is the foreign  origin of the product. Based on this understanding, no further 
analysis should be required to establish the likeness between imported and domestic chicken meat 
and chicken products, and there is a clear discrimination in the conditions of competition of 
imported and domestic like products in place in Indonesia.  
102. However, if the Panel considers that a specific likeness analysis is deemed necessary, the 
determination of likeness under Article III:4 of the GATT is, fundamentally, a determination about 
the nature and extent of a competitive relationship between and among products. The application 
of the traditional four criteria of the GATT's Border Tax Adjustments  is also not mandatory but 
simply a useful framework.  
103. Indonesia has not provided any evi dence to refute the assumption that the imported and 
domestic products would compete in the marketplace. As a matter of fact, Indonesia appears to 
agree with this argument when it affirmed that frozen -thawed chicken meat is similar to fresh 
meat once thawe d and could be thus offered for sale as fresh meat after being thawed. Although 
limiting the discussion to fresh and thawed chicken meat, Indonesia concedes that the consumer 
would not, in practice, distinguish them.  
104. First of all, the difference betwe en the imported and domestic products at issue would 
depend only on the temperature conditions to which each one was subjected, something that does 
not change the relevant properties of the product. Secondly, even products that may present 
certain differen ces in physical characteristics, they may still be considered 'like' if the nature and 
extent of their competitive relationship justifies such a determination. Thirdly, freezing is a process 
capable of retaining the characteristics of chicken meat and chic ken products, guaranteeing their 
quality and sanity and cannot be used to disqualify the likeness of the products at issue.  
105. If Indonesia considers the restrictions as sanitary measures, Brazil understands that 
Indonesia would have to indicate what is its appropriate level of protection and whether a risk 
assessment was carried out to establish that the consumption of frozen or chilled products poses a 
higher risk to human health than fresh chicken. It has clearly not done so, limiting itself to assert,  
without scientific basis, that the freezing process may affect the basic characteristics of the 
product and therefore the analysis of likeness.  
106. Finally, imported and domestic chicken are capable of serving the same or similar end -uses. 
Indonesia's a rguments that its consumers would not perceive imported and domestic product as 
the same product because they could not be sure of the halalness of frozen or chilled product or of 
                                                
6 Appellate Body Report, Korea - Various Measures on Beef , para. 137; Appellate Body Report, US – 
Tuna II (Mexico) , para. 214.  WT/DS484/R/Add.1  
 
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  the quality of the products is simply self -serving and devoid of any credibi lity. Halal -consuming 
countries are amongst the major importers of halal frozen chicken. This discussion of whether or 
not there would be a risk of deceptive practices for the Indonesian consumer does not appear to 
square with the established analysis of l ikeness. This is a question of consumer information that 
could be easily solved, among other measures, by a label that would indicate that the imported 
chicken had been "previously frozen ".  
107. To determine whether the measure at issue falls within the s cope of Article III:4, it is also 
necessary to establish whether it corresponds to "laws, regulations and requirements affecting 
internal sale, offering for sale, purchase, transportation, distribution or use". MoA Regulation 
58/2015 is a legislation issue d by Indonesia's Ministry of Agriculture, which is mandatory and 
applies across the board to all importers of chicken meat and chicken products. Also this restriction 
have "an effect on" the internal sale, offering for sale, distribution and use of the Bra zilian chicken 
meat and chicken products in Indonesia and adversely modify the conditions of competition, 
favoring like domestic products. Firstly, it affects the uses available for the imported products. 
Secondly, it affects the internal sale and offering  for sale of Brazilian chicken meat and chicken 
products. The restriction impedes direct access of consumers to Brazilian products through 
relevant distribution and retail channels, such as "wet markets", severely restricting the size of the 
Indonesian mar ket and adversely shifting the balance of commercial opportunities towards like 
domestic products.   
108. This restriction also results in less favourable treatment to imported product as it modifies 
the conditions of competition and accords like domestic products a competitive advantage  in the 
market over like imported products. In Korea – Various Measures on Beef the Appellate Body 
confirmed the Panel's finding that the dual retail system for imported and domestic beef was 
inconsistent with Article III:4 because it modified the conditions of competition in the Korean food 
market to the detriment of imported products. The creation of a dual system, which required 
retailers to choose between the sale of imported or domestic beef, resulted in the sudden cutti ng 
off of access to normal distribution outlets, virtually excluding imported beef from the retail 
distribution channels through which domestic beef had normal access to Korean consumers. The 
main consequence of these restrictions was the imposition of a d rastic reduction of commercial 
opportunity to reach, and hence to generate sales to, the same consumers served by traditional 
retail channels for domestic beef.  
109. Brazil considers that the "less favourable treatment" under the present dispute is even mo re 
serious . Due to the restriction imposed by MoA Regulation 58/2015, even if imports from Brazil 
were allowed to enter into Indonesia, they could not reach the most important distribution 
channels in that country, where a the vast majority of food purchas e occurs. The huge majority of 
consumers would not have access to Brazilian products. Thus, Indonesia's restrictions on the 
intended uses is inconsistent with Article III:4 of the GATT.  
(b) The halal labelling requirements violates Article III:4 of the GAT T 1994  
110. Brazil has demonstrated that imported and domestic chicken meat and chicken products are 
"like" because origin is the only distinguishing feature between these products. Brazil also 
demonstrated, and Indonesia has recognized, that Law 33/2014 a nd MoA Regulation 58/2015 are 
a "law, regulation or requirement" within the meaning of Article III:4.  
111. Law 33/2014 provides for a five -year grace period for the full compliance with the labelling 
requirement. Even though this requirement is applicable  for both imported and domestic halal 
products, Indonesian authorities do not conduct consistent surveillance concerning the 
implementation of halal labelling by domestic suppliers. It is very common for Indonesian 
consumers to find locally produced chicke n meat and chicken products for sale without the halal 
label. This lack of surveillance is more evident in "wet markets", although it also occurs in other 
retail distribution channels such as modern markets . Therefore, while domestic products are not 
subje ct to strict control procedures, imports of chicken meat and chicken products must comply 
with the labeling requirements before importing is authorized. Without a halal label, Brazilian 
chicken meat and chicken products would not be able to access the Indo nesian marketplace, even 
if the production process in Brazil strictly complies with the halal requirements imposed by 
Indonesia. This discriminatory treatment modifies the conditions of competition in the Indonesian 
marketplace. Not requiring that domestic  like products comply with halal labelling tilts the balance 
in favour of local suppliers.  WT/DS484/R/Add.1  
 
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  3. A measure can violate different WTO provisions simultaneously  
Article XI:1 of the GATT and 4.2 of the AoA  
112. Indonesia claims that a measure can violate only on e WTO provision at a time. It insists that 
Article XI:1 of the GATT and Article 4.2 of the AoA are mutually exclusive provisions and that only 
Article 4.2 should apply to the measures at issue, since it is lex specialis . It also argues that in the 
case of Article 4.2 the complainant would have the burden to demonstrate not only that the 
measure is a restriction but also that is not justified under any of the exceptions in the GATT.     
113. It is beyond any reasonable doubt that a measure can be inconsisten t with more than one 
covered agreement simultaneously and that a Member is entitled to request for a panel to make 
findings on each one of these inconsistencies. The Panel's reasoning in EC – Bananas  III can 
provide guidance to the understanding of what "c onflict" means, based on the text of the General 
Interpretative Note to Annex I of the Agreement establishing the WTO. A legal conflict would occur 
in two situations: (i) first, clashes between obligations in the GATT and in the Annex 1A 
Agreements, where those obligations are mutually exclusive in the sense that a Member cannot 
comply with both obligations at the same time, and, second, (ii) when a rule in one agreement 
prohibits what a rule in another agreement explicitly permits. None of these situations  relate to 
any of the alleged legal conflicts indicated by Indonesia.  
114. There is no conflict between these Article XI:1 and 4.2. Actually, a violation of Article XI:1 
would also entail a violation of Article 4.2. A measure that has a limiting effect on  imports can 
entail a violation of both Articles. Indonesia attempt to convince the Panel that, differently from 
Article XI:1, the legal standard of Article 4.2 would require the complainant to bear the burden of 
showing that the challenged measure is not maintained under any of "other general, non -
agriculture -specific provisions of GATT -1994", including its exceptions, such as Article XX, in order 
to make its prima facie case. Indonesia's construed legal standard not only makes no sense but is 
also contrar y to all previous WTO jurisprudence which has determined that, in the case of 
affirmative defenses, the burden of proof remains with the party asserting the defense, not the 
opposite. To understand it otherwise would require the complainant not only to pro ve that there is 
a restriction prohibited under Article 4.2 but also that none of the multiple exceptions available in 
the GATT could justify the inconsistency of the measure at issue. This is simply unreasonable and 
would mean to prove a negative.  
Article  XI:1 of the GATT 1994, 4.2 of the AoA and 3.2 of the ILA  
115. Indonesia also argues that the general prohibition cannot be, at the same time, incompatible 
with Article XI:1, Article 4.2 and Article 3.2 of the ILA. In Brazil's view, an import licensing 
formality or procedure can constitute a violation of Article XI:1 if it has a limiting effect on imports, 
what would also entail a violation of Article 4.2, and can also violate Article 3.2 of the ILA. 
Members are required to administer non -automatic licensin g in a manner which does not have 
additional trade -restrictive or trade -distortive effects on imports than those already caused by the 
imposition of the restriction itself. Indonesia's import licensing procedures are exactly the kind of 
measures that viola te the first sentence of Article 3.2, as they reinforce the restrictions imposed by 
the country on the importation of chicken.  
116. The same argument is used by Indonesia in respect to the substantive requirements 
pertaining to the challenged import licens ing regime. However, there are no grounds to consider 
that a licensing procedure cannot violate at the same time all those three Articles. As a third party 
has correctly reminded, if a Member imposes a consistent "restriction " through non -automatic 
licensi ng procedures, the ILA, including Article 3.2, applies to ensure that the permissible measure 
is not implemented through an overly restrictive or burdensome licensing procedure. Nevertheless, 
licensing requirements that in themselves impose a limitation or  limiting condition on importation 
or have a limiting effect on trade also would fail within the scope of Article XI:1 of the GATT. The 
limiting effect on trade of Indonesia 's import licensing regime cannot be disputed as not a single 
chicken has been able  to enter the Indonesian market since 2009.  
117. More specifically, the positive list requirement has an important limiting effect on imports, in 
violation of both Article XI:1 and Article 4.2. Procedurally, requiring that the importer demonstrate 
that pre vious imports have complied with its declared intended use as a prior condition to obtain a WT/DS484/R/Add.1  
 
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  new license is a violation of Article 3.2 of the ILA. As there is no permissible measure this 
requirement implements, any administrative procedure attached to the p ositive list is necessarily 
an additional restriction in the sense of Article 3.2 of the ILA. The same is true for the intended 
use requirement.  
118. As for the limited application windows, the short validity periods and the fixed license terms, 
Indonesia has not provided any defense to Brazil 's claims regarding Article 3.2. It limited itself to 
say that Brazilian exporters have not obtained the Import Recommendation and Import Approval 
because they have not satisfied halal requirements. Yet, Indonesia has not explained how the 
limited application windows, the short validity periods and the fixed license terms are related to 
the observance of halal requirements. If there is no permissible measure non -automatic import 
licensing procedures are meant to impleme nt, they are in violation of Article 3.2 of the ILA.  
Article XI:1 and Article III:4 of the GATT 1994  
119. Finally, with regard to the intended used requirement, Indonesia argues that this 
requirement cannot be challenged under both Article III:4 and Artic le XI:1 of the GATT and that it 
should be viewed only as an internal measure, not a border measure, due to the alleged 
application of the Ad Note to Article III. According to Indonesia, although enforced at the border, 
this requirement applies also to dome stic chicken. First, the intended use requirement has 
different effects. It affects the process of importation itself: the importer will not have an import 
license if the imports do not contemplate one of the permitted intended uses. It also affects the 
conditions of competition once the product has entered the market. After customs clearance, the 
importer is not allowed to offer for sale the imported products to other distribution and retail 
channels than those listed in the import license. Therefore, the intended use requirement has 
different effects and violates both Article X1:1 and III:4. Second, the intended use requirement is 
not applicable in the same way to the domestic products. A shipment from Brazil to be used in a 
restaurant in Jakarta could not  be directed to a traditional market (or even to another intended 
use, such as a hotel). However, if the same restaurant denies receiving chicken locally produced, 
the distributor can redirect it to another buyer, such as a hotel, restaurant or the traditi onal 
market. So, even the cold -chain requirement is not applicable in the same way to both imported 
and domestic products. Since there is not an "equivalent internal requirement ", Ad Note to Article 
III is not applicable to the case. This is further demons trated by Article 22(1) of MoA Regulation 
34/2016 as it now requires importers, when applying for an Import Recommendation, to submit a 
distribution plan for the imported chicken, which, according to the template annexed to the 
legislation, shall include i n advance information on the type of meat, the quantity, the name and 
address of the establishments/buyers and the product's price. Brazil considers that the importer is 
not only limited to the end -uses listed in the legislation but also to a pre -defined d istribution plan 
within the allowed uses, preventing the importer from actually distributing the imported chicken 
meat and chicken product after the import operation occurs according to the best business offers it 
may be able to get.  
120. Regardless of the  Panel 's decision concerning the order of analysis and the exercise of 
judicial economy, nothing in the WTO rules prevents the Panel from making findings on each one 
of these inconsistencies challenged by Brazil. This would be particularly important in thi s case 
because of the shifting nature of Indonesia's legislation regarding the intended use requirement. In 
the absence of findings regarding the inconsistency of this measure both as a border measure and 
as an internal measure, Indonesia could continue to  evade its obligations by simply reinforcing in 
new legislation the particular aspect of the intended used requirement that was not addressed by 
the Panel.  
3. Claims related to sanitary barriers  
3.1. Relevant legal standard: Article 8 and Annex C(1)(a) of the SPS Agreement  
121. Article 8 of the SPS Agreement provides that Members shall observe the provisions of Annex 
C in the operation of control, inspection and approval procedures regarding sanitary and 
phytosanitary measures.  Annex C gives shape and conte nt to Article 8 and a violation of the rules 
of Annex C necessarily entails a violation of Article 8.  WT/DS484/R/Add.1  
 
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  122. The most relevant provision of Annex C in the present dispute is Annex C(1)(a), which 
determines that "Members shall ensure, with respect to any pro cedure to check and ensure the 
fulfilment of sanitary or phytosanitary measures, that " […] "such procedures are undertaken and 
completed without undue delay ". 
123. The relevant aspects in the interpretation of Annex C (1)(a) to be taken into account in the  
present dispute are (i) the identification of which are the "procedures designed to check and 
ensure" a sanitary measure; and (ii) the understanding that the term undue delay does not refer 
exclusively to a "delay", but also to an absence of formal respon se from the authorities when 
certain sanitary procedure was initiated before them.  
124. Concerning the first aspect, the term "procedure " is defined in the SPS Agreement in a 
manner as broad as possible. This interpretation has been upheld in several WTO cases.7 The main 
feature to be established when ascertaining whether a certain procedure falls under the purview of 
Article 8 and Annex C(1)(a) is to determine that it "is aimed at 'checking and ensuring the 
fulfilment of sanitary or phytosanitary measures ', and is undertaken in the context of 'control, 
inspection, or approval'". While Article 8 and Annex C list certain types of procedures as expressly 
falling within their ambit, the terms "including" in Article 8, and "include, inter alia", in footnote 7 
to Annex C, clarify that the lists are illustrative.  
125. Previous WTO jurisprudence, in analyzing the term "procedures " as used in Annex A(1), 
upheld the understanding that "procedure " has to be interpreted in a wide sense. The panel report 
in US-Animals (para 7.40) , stated that "the reference to 'procedures' in the second sentence of 
Annex A(1) is broad enough to encompass both procedures of general application as well as the 
specific implementation of a procedure in a particular instance."  
126. On the ba sis of these elements, the term "approval procedures" in both Article 8 and Annex 
C encompass "procedures applied to check and ensure the fulfilment of one or more substantive 
SPS requirements the satisfaction of which is a prerequisite for the approval to  place a product on 
the market". The negotiation of an "International Veterinary Certificate" clearly constitutes a pre -
marketing approval requirement.  
127. Concerning the second aspect, the term "undue delay" does not only refer to a "delay" 
stricto sensu , but also refers to occasions where there is no response at all from a Member's 
competent authority. This interpretation was clarified by the Panel in  EC – Biotech (para 4.167), 
which found that the ordinary meaning of the term "delay" is "(a period of) t ime lost by inaction or 
inability to proceed". The requirement in Annex C(1)(b) of the SPS also provides context for this 
interpretation, particularly regarding the necessity for the competent authorities to "promptly 
examine the completeness of the docume ntation" and to "inform the applicant in a precise and 
complete manner of all deficiencies". Moreover, in EC–Biotech , the Panel interpreted that "without 
undue delay" could adequately mean "without an unjustified loss of time". The Panel also stated 
that " [a]lthough Members are in principle allowed to take the time that is reasonably needed to 
determine with adequate confidence whether their relevant SPS requirements are fulfilled, they are 
also required to proceed with their SPS approval procedures as prom ptly as possible. Therefore, a 
Member is not allowed to freely decide when it will finish the undertaking and completion of the 
approval procedures. In cases in which there is a delay, the Member should ensure that it is not 
excessive or unwarranted and it s causes are rightfully justified". Therefore, although possible in 
practice, a delay must be reasonable and cannot be unjustified and disproportionate. The absence 
of response naturally represents an unjustified and disproportioned delay in the sense of A rticle 
C(1)(a).  
3.2 Legal Analysis: The  undue delay of Indonesia to negotiate an "International 
Veterinary Certificate" with Brazil violates Article 8 and Annex C(1)(a)  
128. The negotiation of an International Health Certificate is the first step undertake n by 
countries interested in the trade of animal products, including chicken. It is clear that the 
negotiation of a valid International Health Certificate is encompassed by the term "approval 
procedures" referred to by Article 8 and Annex C as it is a proc edure "applied to check and ensure 
                                                
7 Panel Report, US – Poultry (China) , para. 7.363; Appellate Body Report Australia – Apples , para. 438; 
Panel Report, US – Animals , para. 7.68  WT/DS484/R/Add.1  
 
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  the fulfillment of one or more substantive SPS requirements the satisfaction of which is a 
prerequisite for the approval to place a product on the market ". 
129. The rule in Annex C(1)(a) determines that the competent sani tary authority must take the 
necessary steps to ensure that a sanitary procedure initiated before it is concluded. There is no 
defined deadline in Annex C(1)(a) and that the assessment of "undue delay" should be made on a 
case-by-case basis. In the present  dispute, the complete lack of response after seven years of the 
first proposal is a clear evidence that Indonesian authorities have unjustifiably delayed the 
procedures to check and ensure the fulfillment of the sanitary requirements that would allow for 
the exportation of Brazilian products. By not answering, the Indonesian authorities violated Annex 
C(1)(a) of the SPS Agreement. Even where a  proposal is inaccurate or does not contemplate all 
the necessary elements required by the Indonesian legislation,  Indonesia must give a proper 
response in order to allow for the corrections and additions necessary. Annex C stems logically 
from Article 8 of the SPS Agreement. As the two provisions are intertwined, a breach of Annex 
C(1)(a) entails a breach of Article 8. 
130. Indonesia attempted to justify its inaction by arguing that the lack of response is Brazil 's 
own fault: Brazil did not present the appropriate documents and information related to the halal 
requirements related to two different business units. Firs t, compliance with halal requirements has 
never been an issue for Brazil, which has had for several years its two main certification bodies 
duly approved by Indonesia. Second, halal certification guards no connection with the conclusion 
of the sanitary pro cedures required by Indonesia. Halal certification is not a SPS procedure and 
should not be confounded with a sanitary requirement nor considered in a government -to-
government sanitary approval process of an International Health Certificate. Indonesia does  not 
dispute that halal certification is not covered by the scope of the SPS Agreement.  
V. INDONESIA 'S DEFENSES UNDER ART ICLE XX OF THE GATT  
The intended use is not justified under Articles XX (b) and (d) of the GATT  
 
131. Indonesia seeks to justify the i ntended use requirement under Article XX(b) of the GATT 
1994, as it contributes to the protection of human life or health by eliminating the risk of freezing 
and thawing products for sale to consumers. It sustains that frequent thawing and freezing would 
increase microbial growth and facilitate product deterioration as this process would "mechanically 
damage the cell membranes and reduce water -holding capacity". However, there is no meaningful 
connection between limiting the sale of frozen chicken to places  with cold chain facilities and the 
alleged objective pursued. First of all, if traditional markets have no cold storage, how is it possible 
that the chicken will be refrozen? Secondly, the freezing process is capable of ensuring that the 
meat will remain fresh for a longer period, as compared to the meat that has never been frozen. 
Indonesia would have more reasons to prohibit the sale of fresh chicken in markets without cold 
storage than prohibiting the sale of frozen chicken. Finally, Indonesia has offer ed no evidence to 
support its claims that food safety is the objective of the intended use requirement.  
132. In any event, the intended use requirement is clearly not "necessary ". There are less trade -
restrictive measures which could satisfy Indonesia 's appropriate level of protection, such as rules 
regulating the thawing of frozen chicken to be offered for sale and/or restricting the possibility of 
refreezing previously thawed chicken for sale in traditional markets. An outright prohibition of the 
sale of  frozen chicken in those venues is in excess of the aim of protecting human life or health 
due to the alleged "risk of freezing and thawing products". Indonesia 's assertions on this subject 
contradict the actual practice of its government. 9,000 tons of im ported frozen meat from the 
United States was recently offered for sale in Indonesian traditional markets. Indonesia confirmed 
that the imported meat was sold frozen but did not inform whether it ensured that the products 
were exclusively kept in cold -chain systems at the points of sale. Given that these systems are 
normally not available in wet markets, it is improbable that the intended use requirement was duly 
enforced.  
133. Indonesia also alleges that the intended use requirement is provisionally justi fied under the 
Article XX (d) because it is designed to secure compliance with Indonesia 's laws and regulations on 
public health (namely, those setting out sanitary requirements), deceptive practices and customs 
enforcement. Indonesia has failed to provide  any evidence that the measure contributes to the 
enforcement of any particular law related to food safety. As noted by one of the third parties, 
there is no basis in the text, structure, or the legislative history of Law 18/2009 and Law 8/1999 to WT/DS484/R/Add.1  
 
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  support the claim that this measure was designed to secure compliance with the food safety and 
consumer protection provisions cited by Indonesia. The recent decision to authorize the sale of 
imported frozen beef during Ramada at traditional markets demonstrates th at the intended use 
requirement is only a protectionist tool. Similarly, Indonesia has not indicated whether there would 
not be any less trade -restrictive alternative measures to secure compliance with its laws and 
regulations. In any event, Indonesia has not demonstrated that the intended use respects the 
chapeau of Article XX of the GATT 1994.  
The positive list is not justified under Article XX (d) of the GATT 1994  
134. Indonesia does not dispute the existence of a prohibition on the importation of chicke n cuts. 
However, it tried to justify this prohibition on the basis of Article XX(d) of the GATT 1994, claiming 
that it "was necessary to secure compliance with Indonesia 's laws and regulations dealing with 
halal food. According to Indonesia, its main conce rn has been that certain exporters may try to 
circumvent Indonesia 's halal requirements by sourcing chicken parts from slaughterhouses that do 
not produce halal chicken, and passing them off as halal.  
135. Indonesia failed to demonstrate that this measure is necessary to secure compliance with its 
halal requirements. In reality, MoA Regulation 58/2015 (revoked by MoA Regulation 34/2016) and 
MoT Regulation 05/2016 (as altered by MoT 37/2016) do not impose the same restriction, for 
instance, in relation to th e importation of cuts of lamb and goat, which should also comply with 
halal requirements. This exception demonstrates that Indonesia itself does not consider it 
necessary in all cases to restrict imports of cuts of animal products in order to ensure compli ance 
with halal requirements. Moreover, there are less trade -restrictive alternative measures to 
guarantee the halalness of the products, for example, to implement certification procedures with 
foreign slaughterhouses seeking to export to Indonesia. Contin uous certification procedures – 
which are a common feature of international trade of food products – would ensure the halalness 
of the products leaving the slaughterhouses and would also prevent deceptive practices with 
regard to the compliance with halal requirements. The positive list requirement cannot be justified 
under paragraph (d) of Article XX.  
The limited application and validity periods are not justified under Article XX(d)  
136. Indonesia frailly attempts to justify the limited application and val idity period under Article 
XX(d) of the GATT 1994 as a measure "designed to secure compliance with Indonesia 's laws and 
regulations addressing halal, public health, as well as deceptive practices (consumer protection) 
and customs enforcement relating to ha lal and safety ". It is difficult to see any connection between 
the limited application and validity periods with the observance of halal requirements. Moreover, 
compliance with halal and animal health requirements can be obtained through much less trade -
restrictive measures, such as proper certification procedures and verification, and information on 
trade flows can easily be obtained through other means.  
The fixed license terms are not justified under Article XX (d) of the GATT 1994  
137. According to Indo nesia, the fixed license terms "were designed to secure compliance with 
Indonesia 's laws on halal and public health, as well as deceptive practices and customs 
enforcement relating to halal and food safety ". Indonesia based its reasoning on the considerati on 
that, allegedly, the fixed license terms "enable[s] the Government to monitor foreign trade and to 
facilitate customs enforcement. They provide an estimate of the volume of imports that would 
enter Indonesia at a particular port and at a given time so t hat the Government can best allocate 
its limited resources in order to expedite customs clearance ". However, Indonesia had not 
explained how the fixed license terms bear any relation to the observance of halal or sanitary 
requirements. Secondly, according to Indonesia, "many of these terms are not as stringent ", as 
"importers may identify more ports than they ultimately use, or higher quantities of import than 
they ultimately import ". If this statement is accurate, one must wonder what actually the purpose 
of fixing the license terms is. The only purpose they can have is to serve as yet another trade 
restrictive tool to close the Indonesian market.  WT/DS484/R/Add.1  
 
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  The halal labelling is not justified under Article XX of the GATT 1994  
138. Indonesia seeks to justify the im plementation of its halal labelling certification procedures 
under subparagraphs (a) and (d) of Article XX of the GATT 1994.  Under Article XX (a), Indonesia 
argues that "the halal requirements are necessary to protect public morals ".  
139. Brazil does not  challenge Indonesia 's right to establish the halal requirements nor questions 
the fact that these requirements are necessary to protect its religious beliefs and public morals. As 
the world's leading exporter of halal chicken, Brazil is fully aware of the  importance of respecting 
the different halal standards adopted by different Muslim countries. As required by Indonesia, halal 
slaughtering in Brazil is performed by the country 's poultry slaughterhouses through manual 
slaughtering.  
140. Brazil contends th at Indonesia did not provide any evidence to justify the "necessity " of the 
discrimination between domestic and imported chicken meat and chicken products to protect its 
public morals, as required by Article XX or how this discriminatory treatment contribu tes to further 
the public morals of the country. Also, even if it was possible to justify the discriminatory 5 -year 
grace period halal certification and labeling requirements under subparagraph (a) of Article XX, 
this measure would not pass the test of the  chapeau. Indeed, to the extent that the measure is 
only applicable to imported products, it is on its face a violation of Article III:4 of the GATT 1994.  
141. Furthermore, Indonesia tries to explain that halal labelling would be applicable only to 
package d products and, therefore, because domestic chicken meat and chicken products are 
mainly sold in the traditional markets and are not necessarily packaged like imported products, 
then the halal label would not be mandatory for the domestic products. However , Indonesia 's 
explanation forgets that Law 33/204 (article 38) does not make any reference with regard to the 
necessity to attach the halal label only to packaged products. Instead, it provides for three 
different possibilities to the attachment of the lab el: (i) in the package of the product; (ii) in a 
specific part of the product; and/or (iii) in a specific place of the product. That is, according to 
Indonesia legislation, packaging is not a reason to justify the discriminatory treatment.  
142. The same ap plies to the defense under paragraph (d) of Article XX. Indonesia has not 
provided any evidence that the challenged measures contribute to the enforcement of any 
particular law or regulation.  It is not sufficient to simply asserts that "the implementation of halal 
requirements is ‘necessary ' to secure compliance with these domestic legal provisions " without 
providing any evidence or further clarification that would justify the discriminatory treatment 
against imported products.  
VI. CONCLUSION  
143. Brazil r espectfully requests that the Panel find that:  
(i) Indonesia's general prohibition on the importation of chicken meat and chicken products is 
inconsistent with Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture;  
(ii) 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 Article 4.2 of the Agreement 
on Agriculture;  
(iii) Indonesia's restrictions on the use of 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;  
(iv) Indonesia's restrictive import licensing procedures is inconsistent with Article XI:1 of the 
GATT 1994, Article 4.2 of the Agre ement on Agriculture, and Article 3.2 of the Agreement on 
Import Licensing Procedures;  
(v) Indonesia's restrictive transportation requirements for 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;  WT/DS484/R/Add.1  
 
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  (vi) Indonesia's restrictions on the use of imported chicken meat and chicken products is 
inconsistent with Article III:4 of the GATT 1994;  
(vii) Indonesia's implementation of halal labelling requirements is inconsistent w ith Article III:4 
of the GATT 1994; and  
(viii) Indonesia's undue delay with regard to the approval of sanitary requirements is inconsistent 
with Article 8 and Annex C of the SPS Agreement.  
 
 
 
 
 WT/DS484/R/Add.1  
 
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  ANNEX B -2 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGUMENTS OF INDONESIA  
I. INTRODUCTION  
1. This dispute raises fundamental issues as to how a WTO Member may properly structure its 
laws and regulations to promote food safety and ensure compliance with its religious 
requirements. Indonesia is home to the fourth largest population in the world with over 255 million 
citizens. It is home to the largest Muslim population in the world. Many devout Muslims in 
Indonesia consume only halal food, which means they are prohibited from consuming pork and 
other meat not slaughtered a ccording to the Islamic Shar'ia, and from consuming products that 
have been in contact with non -halal foods. The burden falls heavily on the Indonesian Government 
to ensure that the food available to Muslim Indonesians conforms to halal requirements as wel l as 
to ensure that Indonesia's food supply is adequate and safe. Indonesia believes that these societal 
values are of the utmost importance. Indonesia also believes that it has struck the proper balance 
between protecting the religious principles of its c itizens and respecting its WTO obligations.    
2. Brazil challenged Indonesia's laws and regulations relating to the importation of chicken 
meat and chicken products as a general prohibition (or overarching measure) on the importation 
of chicken meat and ch icken products, as well as individual measures. The individual measures 
challenged by Brazil are: certain aspects of Indonesia's import licensing regime, including the 
positive list and intended use requirements; the alleged discriminatory implementation o f halal 
labelling requirements; the alleged restrictions on the transportation of imported chicken products; 
and the so -called delays in the approval of sanitary requirements for the importation of chicken. 
Brazil appears to regard this dispute as an "open -and-shut case". It is not.  
3. Indonesia has no intention to ban, restrict or limit imports of chicken meat or chicken 
products from any country, including Brazil. Indonesia only wishes to ensure that chicken meat 
and chicken products are safe, healthy, wh olesome and halal. Moreover, Indonesia is committed to 
further liberalize its trade by enacting measures that are fully consistent with Indonesia's 
legitimate interests in ensuring halal compliance, food safety and security, and safe and efficient 
customs and quarantine administration. In fact, Indonesia's efforts at further liberalization have 
resulted in the termination of some measures challenged by Brazil in these proceedings. Indonesia 
will address these issues in detail in this integrated executive su mmary.  
4. It is well known that complaining WTO Members engaging in WTO dispute settlement 
proceedings must meet high standards. These high standards are reflected in the stringent 
requirements for a panel request, which must plainly connect the challenge d measures with the 
provisions of the covered agreements claimed to have been infringed, so that the respondent is 
aware of the basis for the claims.  In addition, the Appellate Body has noted that the requirement 
to make a prima facie  case – made in the co urse of submissions to the panel – demands the same 
high standards. It stated that "the evidence and arguments underlying a prima facie  case therefore 
must be sufficient to identify the challenged measure and its basic import, identify the relevant 
WTO pro vision and obligation contained therein, and explain the basis for the claimed 
inconsistency of the measure with that provision".1 Furthermore, each factual assertion must be 
proven.2  
5. With all due respect, Indonesia is of the view that Brazil has not m et these high standards in 
the course of these proceedings. As explained in greater detail below, Brazil has submitted many 
Indonesian laws and regulations to the Panel but has not properly identified the WTO -
inconsistencies therein; it has cited several p rovisions in WTO agreements but has not explained 
the basis for the claimed inconsistency of the measure with those provisions. Brazil has also not 
                                                
1 Appellate Body Report, US – Gambling , para . 141.  
2 Panel Report, Argentina – Textiles and Apparel , para. 6.35.  WT/DS484/R/Add.1  
 
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  always been clear as to whether it is challenging current or expired aspects of Indonesia's import 
licensing  regime.3  
6. Moreover, throughout these panel proceedings (even at very late stages), Brazil made 
changes to the scope of its claim on the general prohibition/overarching measure, the import 
licensing regime and the halal labelling requirement. These cons tant changes result in a lack of 
clarity as to what Brazil is actually challenging in these proceedings and deprive Indonesia of the 
ability to defend itself properly. Furthermore, Brazil has challenged certain Indonesian measures 
under the incorrect WTO c overed agreement and has also challenged the same aspects of the 
same measures under different WTO covered agreements, which have different obligations. 
Indonesia therefore considers that Brazil has not met its burden of proof to demonstrate that the 
measu res it is challenging in these proceedings are inconsistent with Indonesia's WTO obligations. 
In addition, Brazil has not convincingly responded to Indonesia's arguments and evidence 
submitted with respect to each of these claims and it has not convincingl y rebutted Indonesia's 
defences under Article XX of the GATT 1994, where applicable. Importantly, Brazil has not 
provided any relevant less -trade restrictive alternatives for the challenged measures.  
7. There are many weaknesses in Brazil's arguments and evidence with respect to each of the 
challenged measures. Indonesia submits that when a complainant fails to support its claims with 
adequate arguments and evidence, these claims must necessarily fail. A panel, in this situation, 
must find that the complai nant failed to make its prima facie  case of violation. Indeed, it is a well -
settled principle of international law that a sovereign State's measure will be treated as 
consistent  with that State's international obligations until proven otherwise.4      
8. Indonesia has submitted detailed legal arguments and comprehensive factual explanations 
with respect to its import licensing regime, including the intended use, positive list and 
transportation requirements; halal labelling and certification requirements. I ndonesia has 
submitted charts detailing every step of the import licensing procedures, has explained fully the 
roles of the main government authorities involved in these procedures, and has clarified the scope 
and coverage of its own laws and regulations. Brazil has not fully engaged with, or properly 
responded to, any of these detailed legal arguments and factual explanations.   
9. Like many other active WTO Members, Indonesia is currently involved in several dispute 
settlement proceedings both as complain ant and as respondent. Indonesia wishes to stress that 
the outcome of those disputes is not relevant for the conduct of this dispute. The outcome of this 
dispute must be determined on the strengths and weaknesses of the legal arguments and 
evidence put for ward by both Brazil and Indonesia in this dispute. 5   
II. INDONESIA'S REQUEST FOR A PRELIMINARY RU LING  
10. Indonesia submitted its request for a preliminary ruling as an attachment to its first written 
submission. Indonesia considered that Brazil's panel  request is problematic in several respects. 
With respect to the alleged general prohibition/overarching measure, Indonesia submitted that 
Brazil failed to provide a brief summary of the legal basis of the complaint sufficient to present the 
problem clearl y as required by Article 6.2 of the Understanding on Rules and Procedures Governing 
the Settlement of Disputes (DSU), as it listed several elements of this measure, several 
Indonesia's legal instruments and several WTO provisions without making a connectio n between 
them.6  
11. Moreover, Indonesia noted that the alleged general prohibition/overarching measure  
described in Brazil's panel request does not correspond to the description of the alleged general 
prohibition/overarching measure in Brazil's first wr itten submission . In its panel request, Brazil 
described this measure as a combined operation of seven  individual measures resulting in the 
general prohibition on the imports of chicken. In its first written submission, Brazil decided to 
remove one such in dividual measure (halal labelling requirement) changing the scope of the 
                                                
3 See, for example, Indonesia's opening statement at the second meeting, paras. 5 -6 and Brazil's 
rebuttal submission, para. 155.  
4 See, inter alia , Appellate Body Report, US – Carbon Stee l, para. 157.  
5 The information in this section is based on, inter alia , Indonesia's opening statement at the first 
meeting, paras. 3 -4; and Indonesia's opening statement at the second meeting, paras. 2 -8. 
6 Indonesia's Request for a Preliminary Ruling und er Article 6.2 of the DSU, paras. 1.14 -1.28. WT/DS484/R/Add.1  
 
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  general prohibition/overarching measure. It then referred to this measure for the first time as an 
unwritten measure.7 Similarly, Brazil failed to describe the objective of the allege d general 
prohibition/overarching measure in its panel request, but only referred to it in its first written 
submission. However, the objective of an alleged unwritten overarching measure plays a pivotal 
role in defining the measure at issue and, by not re ferring to it in the panel request, Brazil has not 
complied with the specificity requirements in Article 6.2 of the DSU.8 
12. Furthermore, Indonesia noted that Brazil's challenge to Indonesia's import licensing regime 
"as a whole" was not identified in its  panel request, and was thus, outside the terms of reference 
of the Panel.9 Along similar lines, Indonesia claimed that Brazil's challenge to an alleged import 
prohibition on other prepared or preserved chicken meat was not identified in Brazil's panel 
request and was therefore outside the terms of reference of the Panel.10  
13. Finally, Indonesia argued that, to the extent that Brazil was challenging Indonesia's 
measures under Article 1 of the Agreement on Import Licensing Procedures (Import Licensing 
Agree ment), the Panel should refrain from entertaining such claims, as Article 1 was not 
mentioned in Brazil's panel request, and was thus outside the terms of reference of the Panel.11 
III. SYSTEMIC ISSUES ARIS ING IN THIS DISPUTE  
A. BRAZIL 'S CLAIM ON THE ALLEG ED GENERAL PROHIBITION /OVERARCHING MEASURE IS A "MOVING 
TARGET " FOR INDONESIA AND IS NOT SUPPORTED BY RELEVAN T EVIDENCE  
14. Brazil submitted that Indonesia maintains "several prohibitions or restrictions on the 
importation of chicken meat and chicken prod ucts, which, combined, have the effect of a general 
prohibition on the importation of these products".12 Brazil described this measure as an 
overarching measure/general prohibition comprising the following elements: the prohibition of the 
importation of non -listed products; prioritization of "national food" over "food import"; prohibitions 
or restrictions on imports of essential and strategic goods; limitations on chicken meat and chicken 
products to certain intended uses; alleged undue refusal to approve th e health certificates for 
poultry products; alleged prohibitions and/or restrictions to importation through Indonesia's import 
licensing regime; and alleged import prohibition imposed through the halal labelling requirements 
for imported chicken meat and c hicken products.13 In its first written submission, Brazil dropped 
the halal labelling requirement so that the description of the overarching measure/general 
prohibition then only included six elements.14   
15. Indonesia raised systemic concerns with respect  to the manner in which Brazil described the 
alleged general prohibition/overarching measure and its challenge throughout these proceedings, 
as well as the inadequate nature and amount of evidence Brazil submitted to prove the existence 
of this measure. In  Russia – Tariff Treatment , the panel acknowledged that if neither the 
respondent nor the panel were able to pin down the measure whose consistency with the covered 
agreements is contested, "[t]his could raise issues of due process".15 Moreover, it is well -
established in WTO jurisprudence that "the complaining party must 'present relevant arguments 
and evidence during the panel proceedings showing the existence of the measures, for example, in 
the case of challenges brought against unwritten measures'".16 It is also generally acknowledged 
that a panel cannot lightly accept the complainant's assertion that the challenged unwritten 
                                                
7 Brazil's first written submission, paras. 136 -139. 
8 Indonesia's Request for a Preliminary Ruling under Article 6.2 of the DSU, paras. 1.29 -1.41. See also 
Indonesia's response to Panel Question No. 68.  
9 Indon esia's Request for a Preliminary Ruling under Article 6.2 of the DSU, paras. 5.1 -5.6. 
10 Indonesia's Request for a Preliminary Ruling under Article 6.2 of the DSU, paras. 1.43 -1.48. 
11 Indonesia's Request for a Preliminary Ruling under Article 6.2 of the DSU , paras. 1.49 -1.52. 
12 See, Request for the Establishment of a Panel by Brazil, Indonesia – Measures concerning the 
Importation of Chicken Meat and Chicken Products , WT/DS484/8, 21 October 2015 (Brazil's panel request), pp. 
1-2. 
13 Brazil's panel request, p.  2. 
14 Brazil's first written submission, para. 74.  
15 Panel Report, Russia – Tariff Treatment , paras. 7.291, 7.302.  
16 See Panel Report, Russia – Tariff Treatment , para. 7.338 (citing Appellate Body Report, US – 
Continued Zeroing , para. 169).  WT/DS484/R/Add.1  
 
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  measure exists.17 This means that the evidentiary burden for a complainant challenging an 
unwritten measure must necessarily be highe r than that arising from challenges to written 
measures, whose existence is not disputed.18 Brazil has itself recognised this heightened burden.19 
16. With respect to the manner in which Brazil described the alleged general 
prohibition/overarching measure an d its challenge, until the end of the Panel's proceedings, Brazil 
did not explain clearly what exactly it was challenging and on what basis. Brazil referred to the 
measure at issue as: "a general prohibition on the importations" of chicken meat and chicken  
products, " de jure " and " de facto " inconsistent with Indonesia's obligations; "a general proposition, 
concerted action or practice", an unwritten, overarching measure, distinct from its elements; and 
"on-going conduct" of "general and systematic applicati on". In its panel request, Brazil stated that 
the measure at issue consists of seven  prohibitions or restrictions, which are "combined" (i.e. 
interact and work in concert ). In its first written submission, Brazil argued that the measure at 
issue consists o f only six elements. In its other submissions, Brazil argued that the alleged general 
prohibition/overarching measure could consist of "six, seven or eight (or more, or fewer)" WTO -
inconsistent measures. And then, in its response to Panel Question No. 5.a. v, Brazil suggested that 
other measures, in particular the direct transportation requirement, "could also be part of the 
general prohibition".20 
17. In its first written submission, Brazil specified the alleged objective of the general 
prohibition/overarchi ng measure for the first time, and then expanded upon its argument in its 
opening statement at the first meeting of the Panel with the parties. In particular, Brazil clarified 
that "the combined interaction of different individual WTO -inconsistent measures  constitutes an 
unwritten overarching measure and was conceived to implement an official trade policy based on 
the overriding objective of restricting imports to protect domestic production". Brazil referred to 
this policy as the requirement of "self -sufficiency". Brazil described the alleged requirement of 
"self-sufficiency" as the "overriding objective" and one of the elements of the measure at issue, as 
well as a "guiding principle". However, Indonesia explained that a measure and its objective are 
different concepts.21 
18. Indonesia acknowledges that a complainant has certain discretion to describe the measure it 
is challenging in the way it considers necessary. Nevertheless, Indonesia submits that once the 
complainant described the measure in one way, it  is not free to stretch and squeeze its content 
throughout the panel proceedings. Doing so would compromise the ability of the respondent to 
prepare its defence, as in the present case. Moreover, given that the challenge to a rule or norm of 
"general and s ystematic application" is different from the challenge to a measure as applied, or as 
on-going conduct, or as an overarching measure, a complainant that has changed the description 
of the challenged measure, or the essence of its challenge to that measure,  would have to start to 
make its prima facie  case anew, possibly submitting additional evidence. Brazil has itself 
acknowledged that the description/characterization of the measure at issue by the complainant 
informs the evidence and arguments that are req uired to prove that the measure exists.22 
19. A clear and consistent description of the content of the challenged measure is especially 
important in circumstances where the measure is unwritten, as in the present dispute. By 
definition, the alleged general prohibition/overarching measure is not a measure set out in any 
laws, regulations or official policy documents. It is rather a construction that Brazil has devised in 
                                                
17 See Panel Rep ort, Russia – Tariff Treatment , paras. 7.348, 7.380. See also Appellate Body Report, EC 
and certain member States – Large Civil Aircraft , para. 792.  
18 See Panel Report, Argentina – Import Measures , para. 6.323.  
19 Brazil's rebuttal submission, para. 12. See  these issues discussed in Indonesia's first written 
submission, paras. 96 -109; Indonesia's opening statement at the first meeting, paras. 49 -58; Indonesia's 
rebuttal submission, paras. 65 -75; Indonesia's opening statement at the second meeting, paras. 10 -21; 
Indonesia's responses to Panel Questions No. 5.c, 6 -8, 68, 70; Indonesia's comments on Brazil's responses to 
Panel Questions No. 68, 70, and 71.   
20 See Indonesia's response to Panel Question No. 6; Indonesia's rebuttal submission, para. 66 (citing 
inter alia , Brazil's first written submission, paras. 76, 173; Brazil's response to Indonesia's request for a 
preliminary ruling, para. 32).  
21 Indonesia's rebuttal submission, para. 66; and Indonesia's comment on Brazil's response to Panel 
Question No. 68 (ci ting Brazil's first written submission, paras. 75 and174; Brazil's opening statement at the 
first meeting, para. 11; and Brazil's responses to Panel Questions No. 5.b and 68).  
22 Brazil's response to Panel Question No. 8.b (citing Appellate Body Report, Argentina – Import 
Measures , para. 5.107). See Indonesia's rebuttal submission, paras. 67 -68; Indonesia's opening statement at 
the second meeting, paras. 10 and11.   WT/DS484/R/Add.1  
 
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  order to cluster various otherwise distinct measures together to suggest that they suppos edly 
advance a common objective. The very existence and the precise contours of the alleged 
overarching, unwritten measure are, therefore, uncertain, and should have been clearly 
established by Brazil.23 
20. With respect to the evidence that Brazil presente d to prove that the measure at issue exists, 
the only pieces of evidence Brazil relied upon were: trade statistics showing the absence of imports 
of chicken into Indonesia from Brazil, and certain legal instruments in which some individual 
elements of the alleged general prohibition/overarching measure are established. Brazil did not 
provide any evidence showing how the alleged elements of the measure at issue operate together , 
as opposed to being merely individual unrelated "trade restrictions". Furthermor e, Brazil did not 
prove its assertion that each of these elements was indeed established with a view to achieving  
Indonesia's alleged objective of "self -sufficiency" . Finally, Brazil failed to substantiate its assertion 
that the alleged general prohibition /overarching measure is applied in a "general and systematic" 
manner .24  
21. To be clear, Indonesia does not argue that the above elements must be demonstrated in 
each and every dispute involving unwritten measures. Brazil's evidentiary burden stems from it s 
own characterization/description of the measure at issue in its panel request and its subsequent 
clarifications in the course of the Panel proceedings.25 
22. At the very end of these proceedings, in its response to a Panel's question following the 
second substantive meeting of the Panel with the parties, Brazil attempted to introduce additional 
pieces of evidence, such as a letter signed by Indonesia's Director General of Livestock, Ministry of 
Agriculture, and four news articles allegedly quoting Indonesi an government officials. Indonesia 
requested the Panel to disregard these documents, as they constitute evidence -in-chief and, 
pursuant to paragraph 8 of the Working Procedures for this dispute, had to be submitted "no later 
than during the first substanti ve meeting". Most of the documents submitted were dated well 
before the deadline for submitting factual evidence, and were in Brazil's possession. Brazil did not 
even try to show good cause as to why it should be allowed to submit evidence -in-chief at that  late 
stage. Instead, it argued that it was entitled to submit evidence -in-chief in response to a Panel's 
question.26 
23. But even if those pieces of evidence were properly before the Panel, they do not provide any 
meaningful support for Brazil's allegation  that the general prohibition/overarching measure exists. 
Brazil's evidence is contradictory and does not prove that the lack of imports of chicken meat and 
chicken products from Brazil into Indonesia is caused by the alleged requirement of self -
sufficienc y. On the contrary, as Indonesia demonstrated throughout these proceedings, the real 
reason for the lack of imports is Brazil's own failure to comply with Indonesia's import procedures. 
With respect to the news articles, they appear to contain "quotes" of Indonesian authorities taken 
out of context, and do not portray the accurate picture of the Indonesian market for chicken.27 
24. Based on these considerations, the fact that, even at the very end of the Panel proceedings, 
Brazil had not provided a clear des cription of the measure at issue and the nature of its challenge, 
and had not submitted adequate evidence demonstrating that this measure exists means that 
Brazil failed to make its prima facie  case. Indeed, when various factual assertions of Brazil 
regard ing the alleged content of the measure are assessed in a holistic manner, it becomes clear 
that the measure in the way it is described by Brazil in its different submissions does not even 
exist.28 
                                                
23 Indonesia's rebuttal submission, para. 69 (citing Appellate Body Report, EC and certain mem ber 
States – Large Civil Aircraft , para. 792).  
24 Indonesia's rebuttal submission, paras. 100 -109; Indonesia's opening statement at the second 
meeting, para. 13.  
25 See Indonesia's opening statement at the second meeting, para. 14 (citing Appellate Body Repo rt, 
Argentina – Import Measures , para. 5.108; and Panel Report, Russia – Tariff Treatment , para. 7.296, footnote 
448).  
26 See Indonesia's comment on Brazil's response to Panel Question No. 70; and Brazil's comment on 
Indonesia's response to Panel Question N o. 70.  
27 Indonesia's comment on Brazil's response to Panel Question No. 70.  
28 Indonesia's rebuttal submission, paras. 75 and 109.  WT/DS484/R/Add.1  
 
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  B. BRAZIL REQUESTS THE PANEL TO MAKE RECOMME NDATIONS ON MEAS URES THAT HAVE EXPIR ED  
25. In the course of the proceedings, Indonesia explained that some of the measures  
challenged by Brazil, namely, the  intended use requirement, the positive list requirements, and 
certain aspects of Indonesia's import licensing re gime,  had expired. These new measures 
significantly liberalised the procedures and conditions to import chicken into Indonesia.   
26. Brazil claimed that the intended use requirement in MoA Regulation No. 139/2014 limited 
the importation and distribution o f imported chicken to certain uses only, i.e. hotels, restaurants, 
catering, manufacturing, other special needs and modern markets).29 Indonesia notes that this 
Regulation was modified by MoA Regulation No. 34/2016,30 which terminated the intended use 
requir ement. Article 31(1) of MoA Regulation No. 34/2016 now permits the sale of frozen chilled 
and chicken in any market where these products can be sold, i.e.  any market with cold -chain 
facilities, including traditional markets.  
27. Brazil also challenged th e positive list requirements, which prohibited the importation of 
chicken cuts that were not listed in the relevant annexes to MoA Regulation No. 139/2014 and MoT 
Regulation No. 46/2013.31 MoA Regulation No. 139/2014 was modified by MoA Regulation No. 
34/20 16, and MoT Regulation No. 46/2013 was modified by MoT Regulation No. 59/2016, which 
terminated the positive list requirements.  Pursuant to Article 7(3) of MoA Regulation No. 34/2016, 
importers can import all chicken products as long as they apply for an Import Recommendation 
and the imported products comply with the ASUH requirements (i.e. products are safe, healthy, 
wholesome and halal).   
28. Brazil also claimed that Indonesia's previous import licensing regime restricted the 
importation of chicken as i mporters had to apply for an Import Recommendation during a specific 
period (application period) that were valid for four months (validity period). Importers also had to 
specify the price, quantity, country of origin, port of entry and intended use of impo rted products 
without the ability to modify this information during the pertinent validity period (fixed -license 
terms).32 As stated above, MoA Regulation No. 139/2014 was modified by MoA Regulation No. 
34/2016, which further liberalised Indonesia's import regime.  Article 21 of this Regulation 
terminated the application period and Article 30 extended the validity period of Import 
Recommendations from four to six months.  
29. During the second substantive meeting of the Panel with the parties, Brazil requeste d the 
Panel to review the WTO -consistency of these expired measures.33  
30. Indonesia notes that a panel can make only findings, but not recommendations with respect 
to measures that have expired.34 Furthermore, even though Brazil's panel request covers "any  
amendments, replacements, related measures, or implementing measures", to the extent that the 
measure at issue was terminated by an amendment, the amendment necessarily changes the 
essence of the measure and, therefore, cannot be ruled upon. This approach  finds support in WTO 
jurisprudence.35 Thus, Indonesia submits that the provisions that terminate the positive list 
requirements, the intended use requirement and the application periods fall outside the Panel's 
terms of reference.  
31. That said, Indonesia submits that MoA Regulation No. 34/2016 and MoT Regulation  
No. 59/2016 can be used as evidence to confirm that the positive list requirements, the intended 
use requirement and the limited application periods expired.36 
                                                
29 Brazil's panel request, pp. 4 and 6.  
30 Ministry of Agriculture Regulation No. 34/2016 Concerning Importation of Carcass, Mea t, Offal and/or 
their Processed Products into the territory of the Republic of Indonesia (MoA Regulation No. 34/2016), Exhibit 
IDN-93. 
31 Brazil's panel request, p. 4.  
32 Brazil's panel request, p. 4.  
33 See Brazil's response to Panel Question No. 66 and Braz il's comments on Indonesia's responses to the 
Panel Questions after the second meeting, paras. 1 -5. 
34 See Indonesia's response to Panel Question No. 149.  
35 See Appellate Body Report, Chile – Price Band System , paras. 136 -137; Panel Report, China – Raw 
Materials, para. 7.17; Panel Report, India – Additional Import Duties , paras. 7.62 -7.63. 
36 See a similar approach in Panel Report, China – Raw Materials , paras. 7.31, 7.33(b).   WT/DS484/R/Add.1  
 
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  32. Indonesia notes that the validity  period requirement has not been terminated, but it was 
rather modified in Article 30 of MoA Regulation No. 34/2016. This provision, therefore, did not 
change the essence of the original measure. Indonesia submits that the Panel has jurisdiction to 
rule on  the WTO -consistency of the validity period requirement in Article 30 of MoA Regulation No. 
34/2016.37  
33. In the alternative, if the Panel were to find that it has jurisdiction over the expired 
measures , Indonesia submits that the current regime is WTO -consistent for the reasons explained 
in detail in its submissions.38 Indonesia's defences under Article XX(b) and (d) of the GATT 1994 
would apply, mutatis mutandis , to these measures.  
C. BRAZIL HAS CHALLENGED  THE SAME ASPECTS OF THE SAME MEASURES UN DER DIFFE RENT 
AGREEMENTS  
1. Relationship between Article 4.2 of the Agreement on Agriculture and Article XI:1 
of the GATT 1994  
34. Brazil challenged all measures at issue in this dispute, except Indonesia's halal labelling 
requirements and Indonesia's alleged fai lure to approve sanitary requirements, under both Article 
XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture. In Indonesia's view, 
however, Article 4.2 of the Agreement on Agriculture applies to the exclusion of Article XI:1 of the 
GATT 1994. Both provisions regulate quantitative import restrictions. The products at issue (i.e. 
chicken meat and chicken products) are goods falling within the HS Codes listed in Annex 1 to the 
Agreement on Agriculture (i.e. HS0207 and HS 1602). Article 4.2 o f the Agreement on Agriculture 
is, therefore, lex specialis  vis-à-vis Article XI:1 of the GATT 1994.39  
35. Indonesia explained that, when read together, Article 4.2 and footnote 1 of the Agreement 
on Agriculture suggest that a complainant would not be able  to make its prima facie  case of 
inconsistency with Article 4.2 unless it establishes two elements: first, that the challenged 
measure is a "quantitative import restriction" or another type of restrictions listed, and, second, 
that this restriction is not "maintained under … other general, non -agriculture -specific provisions of 
GATT 1994 [such as Article XX]". This is a threshold issue in order to determine whether the 
challenged measure is "of the kind which have been required to be converted into ordinary  
customs duties", and, therefore, "shall not [be] maintain[ed], resort[ed] to, or revert[ed] to" 
within the meaning of Article 4.2. In Indonesia's view, the difference between how the burden of 
proof is allocated between the complainant and respondent unde r Article 4.2 of the Agreement on 
Agriculture and Articles XI:1 and XX (General Exceptions) of the GATT 1994, respectively, gives 
rise to a conflict.40   
36. Pursuant to Article 21.1 of the Agreement on Agriculture and the General Interpretative Note 
to Ann ex 1A to the WTO Agreement, when a conflict exists, Article 4.2 prevails and applies to the 
exclusion of Article XI:1. Although the Appellate Body is yet to clarify the relationship between 
Article XI:1 and Article 4.2 and the allocation of the burden of p roof under different elements of 
the latter provision, it has accepted in general, in a number of its decisions, that a conflict is 
possible.41 The Appellate Body has understood the notion of "conflict" as covering situations in 
which rules and procedures u nder WTO covered agreements cannot be read as complementing 
each other.42 Certainly, rules in different agreements that differ on such a fundamental issue as 
                                                
37 See Indonesia's rebuttal submission, paras. 19 -22. See also Indonesia's justific ation of the validity 
period and the fixed license terms in its response to Panel Questions No. 113, 114, 119, and 122 (covering the 
new regime as well).  
38 See e.g., Indonesia's response to Panel Question No. 77, 88 -91 and 113. See also Indonesia's 
comment s on Brazil's responses to Panel Questions No. 77(d), 85, 86(b), 87, 90, 96, 99, 101 and 103.  
39 See, inter alia , Indonesia's first written submission, paras. 66, 74; Indonesia's rebuttal submission, 
paras. 80, 84 -85. 
40 Indonesia's first written submission,  paras. 69 -73; Indonesia's opening statement at the first 
meeting, paras. 23 -24, 36; Indonesia's rebuttal submission, para. 81.  
41 See, inter alia , Appellate Body Report, EC – Export Subsidies on Sugar , para. 221.  
42 See Appellate Body Report, Guatemala – Cement I , para. 65.  WT/DS484/R/Add.1  
 
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  the allocation of the burden of proof cannot be considered as "complementing each other" – 
rather, they are "mutually exclusive".43 
37. The Appellate Body has explicitly confirmed this hierarchy between the Agreement on 
Agriculture and the GATT 1994, in particular between Article 4.2 and Article II:1(b) respectively, in 
Chile – Price Band System .44 In Turkey – Rice, the panel expressed the same view with respect to 
the relationship between Article 4.2 and Article XI:1 by stating that "[t]he Agreement on 
Agriculture deals more specificall y than the GATT 1994 with the prohibition on maintaining 
quantitative restrictions or quotas".45 
38. Brazil and a number of third parties in this dispute, in particular the European Union, New 
Zealand and the United States, argued that the burden of showing that the challenged import 
restriction meets the second element of th e test in footnote 1 to Article 4.2 of the Agreement on 
Agriculture rests on the respondent.46 The United States asserted that "[a]dopting Indonesia’s 
interpretation would render a successful Article 4.2 claim nearly impossible".47 
39. Indonesia is not convi nced by these arguments. If the drafters intended to create a general 
rule-exception relationship between the two elements of footnote 1 whereby the burden of 
satisfying the second element would be on the respondent, they would have used different, more 
explicit wording. For example, Article 3 of the TRIMS Agreement (titled "Exceptions") states  
explicitly that "[a]ll exceptions under GATT 1994 shall apply,  as appropriate, to the provisions of 
this Agreement". Similar wording is used in Article 24.7 of the A greement on Trade Facilitation. 
Furthermore, there are many examples of provisions in the covered agreements that convert 
exceptions under Article XX of the GATT 1994 into positive obligations, thereby shifting the burden 
of proof to the complainant, for e xample, Article 2.2 of the TBT Agreement. There are also many 
provisions in the covered agreements that require the complainant to demonstrate that certain 
exceptions do not apply, and, therefore, do not remove the inconsistency of the measure with the 
relevant positive obligation, for example, Article 2.4 of the TBT Agreement.48  
40. Indonesia further notes that, in an effort to avoid any conflict between Article 4.2 and Article 
XI:1, Brazil, Australia, the European Union and Canada suggested that both Arti cles apply 
"harmoniously" to the same type of quantitative import restrictions and that the "scope of 
measures prohibited could in principle be the same".49 If the rules under Article 4.2 and Article 
XI:1 were the same, then one of them would be superfluous . This would go against the well -
established principle of the effective treaty interpretation, pursuant to which "[a]n interpreter is 
not free to adopt a reading that would result in reducing whole clauses or paragraphs of a treaty to 
redundancy or inutili ty".50   
41. Finally, the United States and New Zealand suggested that the Panel begin its analysis with 
Article XI:1, and, in this way, it would not have to address the issue of conflict between Article 
XI:1 and Article 4.2.51 Indonesia considers that the o rder of analysis suggested by these third 
parties would distort the fundamental due process rights of Indonesia, as it would bear the burden 
of proof in a situation where this burden is not envisaged by the applicable law. It is a well -
established principl e that panels are free to determine the order of analysis only to the extent that 
                                                
43 See Indonesia's first written submission, paras. 67and 68; Indonesia's opening statement at the first 
meeting, paras. 28 and 29; Indonesia's response to Panel Question No. 49.  
44 Appellate Body Report, Chile – Price Band System , para. 18 6 (see also paras. 187 and 190). See also 
Panel Report, Peru – Agricultural Products , paras. 7.19 and7.20.  
45 Panel Report, Turkey – Rice, para. 7.48, emphasis added. The EC expressed the same view in that 
dispute in ibid, para. 7.47. See Indonesia's openin g statement at the first meeting, para. 28.  
46 Brazil's rebuttal submission, paras. 18 -21; European Union's third party submission, paras. 23 -24; 
New Zealand's third party submission, paras. 67 -70; and United States' third party submission, paras. 57 -58.    
47 United States' third party submission, para. 58.  
48 Indonesia's opening statement at the first meeting, paras. 32 -36. 
49 See European Union's third party submission, para. 27. See also Brazil's rebuttal submission, para. 
16; Australia's third party submis sion, para. 30; and Canada's third party submission, para. 58.  
50 See Appellate Body Report, US – Gasoline , p. 20. See Indonesia's opening statement at the first 
meeting, paras. 37 -38. 
51 United States' third party submission, paras. 59 -60; New Zealand's thi rd party submission, para. 71.  WT/DS484/R/Add.1  
 
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  this determination would not "amount to an error of law", or "have repercussions for the substance 
of the analysis itself".52 
2. Relationship between the Agreement on Import L icensing, Article 4.2 of the 
Agreement on Agriculture and Article XI:1 of the GATT 1994  
42. Brazil challenges the same aspects of Indonesia's import licensing regime under Article 3.2 
of the Licensing Agreement and Article 4.2 of the Agreement on Agricult ure and Article XI:1 of the 
GATT 1994. These aspects are: (i) positive list requirements, (ii) intended use requirement, and 
(iii) limited application and validity periods.53 Furthermore, in Question No. 128, the Panel asked 
Brazil to clarify whether Brazil  is also challenging the fixed licence terms under Article  3.2 of the 
Licensing Agreement and "[i]f so, … where this claim was developed in Brazil's submissions". In 
Indonesia's view, this claim, albeit included in Brazil's panel request, was not developed  in Brazil's 
submissions, which means that Brazil failed to make its prima facie  case with respect to this claim. 
This was confirmed by Brazil's response to this Question, in which it could not point to any 
passages in its first written submission and othe r submissions where it provided legal arguments 
and evidence in support for this claim.54 
43. Indonesia explained that the respective scopes of the application of the Import Licensing 
Agreement, on the one hand, and Article 4.2 of the Agreement on Agricultu re and Article XI:1 of 
the GATT 1994, on the other hand, are not the same . Article XI:1 of the GATT 1994 and Article 4.2 
of the Agreement on Agriculture establish certain substantive rights and duties , in particular the 
prohibition of quantitative import r estrictions, whereas, according to Article 1.1 of the Licensing 
Agreement, the latter agreement regulates "administrative procedures  used for the operation of 
import licensing regimes".55 Indonesia explained that, among the measures challenged by Brazil 
under the Licensing Agreement, the only measure that actually falls within the scope of this 
agreement is the limited application and validity periods. This measure consists of procedural 
requirements  that prescribe steps for obtaining the right to import chi cken meat and chicken 
products into Indonesia. This view was shared by the European Union. Brazil, therefore, could not 
challenge the same measures under the Agreement on Import Licensing, and Article 4.2 of the 
Agreement on Agriculture and Article XI:1 of  the GATT 1994.56 
44. In any event, in its submissions, Brazil failed to explain why the measures it challenged 
under Article 3.2 of the Licensing Agreement in fact constitute import licensing procedures  that are 
non-automatic , and, therefore fall under Art icles 1.1 and 3.2 of the Licensing Agreement. 
Furthermore, Brazil did not demonstrate how these measures are inconsistent with the specific 
legal obligations under Article 3.2.57 
3. Relationship between Article 4.2 of the Agreement on Agriculture, Article X I:1 
and Article III:4 of the GATT 1994  
45. Another systemic issue arises from Brazil's approach of challenging the same aspects of the 
intended use requirement under both Article III:4 of the GATT 1994 (covering internal measures 
affecting competitive opp ortunities in the domestic market), and Article 4.2 of the Agreement on 
Agriculture and Article XI:1 of the GATT 1994 (covering border measures affecting competitive 
opportunities of imports).58 The Panel's determination of whether the intended use requirem ent is 
                                                
52 Appellate Body Report, Canada – Wheat Exports and Grain Imports , para. 109. See Indonesia's 
opening statement at the first meeting, para. 39; Indonesia's response to Panel Question No. 49.  
53 Brazil's first written submissio n, paras. 200, 228, 251. See Indonesia's rebuttal submission, para. 96.  
54 Indonesia's comment on Brazil's response to Panel Question No. 128.  
55 Footnote omitted, emphasis added.  
56 See EU's response to Panel Question No. 7 addressed to third parties. See In donesia's first written 
submission, paras. 75 -80; Indonesia's responses to Panel Questions No. 48 and 49; Indonesia's rebuttal 
submission, para. 96.  
57 Indonesia's responses to Panel Questions No. 48, 58 -61; Indonesia's rebuttal submission, paras. 114 -
117; Indonesia's opening statement at the second meeting, paras. 24 -36; Indonesia's comments on Brazil's 
responses to Panel Questions No. 124, 127.  
58 Indonesia's first written submission, paras. 81 -89; Indonesia's opening statement at the first 
meeting, paras. 41-47; and Indonesia's responses to Panel Questions No. 50 -53 and 55.  WT/DS484/R/Add.1  
 
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  an internal measure or a border measure is a threshold issue as the challenged aspect of the same 
measure cannot be a border measure and an internal measure at the same time.59  
46. Indonesia recalls that Note Ad Article III draws a clear distinction  between internal and 
border measures. It provides that "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 importe d product at the time or point of importation, is nevertheless 
to be regarded as … a law, regulation or requirement of the kind referred to in paragraph 1, and is 
accordingly subject to the provisions of Article III" (emphasis added). This distinction was also 
clarified by the panel in India – Autos , which stated that what is targeted in Article XI:1 is 
exclusively restrictions which relate to the importation itself, and not to already imported 
products.60  
47. Ad Note to Article III presupposes an equivalen t measure that applies to imported and like 
domestic products.61 Article 22 and 23 of Minister of Agriculture Decree 306/1994 provide that 
frozen and chilled poultry meat is offered for sale in meat shops and supermarkets "equipped with 
cooler facilities (r efrigerator and/or freezer)".62 Thus, Minister of Agriculture Decree No. 306/1994 
is a measure equivalent to the intended use requirement challenged by Brazil that applies to both 
imported and like domestic products, namely chilled and frozen products. This  brings the intended 
use requirement clearly within the scope of Article III:4 of the GATT 1994. It thus, does not fall 
under the scope of Article 4.2 of the Agreement on Agriculture or Article XI:1 of the GATT 1994.  
IV. BRAZIL FAILS TO PROV E THAT THE CHA LLENGED MEASURES ARE   
INCONSISTENT WITH IN DONESIA'S WTO OBLIGA TIONS  
A. ALLEGED GENERAL PROHI BITION /OVERARCHING MEASURE  
48. Indonesia recalls that Brazil challenged the so -called overarching measure/general 
prohibition as a "quantitative import restrictio n" inconsistent with Article XI:1 of the GATT 1994, 
and a "quantitative import restriction" or a "similar border measure" inconsistent with Article 4.2 of 
the Agreement on Agriculture.63 As explained in Indonesia's submissions, Brazil failed to prove that 
the measure at issue exists in the way it is described by Brazil.64 
49. Moreover, even if the Panel were to find otherwise, for the reasons already explained, 
Indonesia considers that, in the present dispute, Article 4.2 of the Agreement on Agriculture 
applies to the exclusion of Article XI:1 of the GATT 1994. In the context of its claim under Article 
4.2, Brazil did not substantiate its assertions that a causal relationship exists between the alleged 
measure and the claimed trade distortion (i.e. the measure  has a limiting effect), that the measure 
at issue constitutes a similar border measure, and that it is not "maintained under … general, non -
agriculture -specific provisions of GATT 1994 or of the other Multilateral Trade Agreements in 
Annex 1A to the WTO A greement". In light of these deficiencies, Brazil failed to prove that the 
general prohibition/overarching measure – to the extent that Brazil established its existence ( quod 
non) – is inconsistent with Article 4.2 of the Agreement on Agriculture.65   
50. If, despite Indonesia's arguments, the Panel were nevertheless to address Brazil's claim 
under Article XI:1 of the GATT 1994, Brazil failed to prove that this measure is a quantitative 
                                                
59 See Appellate Body Report, China – Auto Parts , para. 139 (referring to Panel Report, China – Auto 
Parts, para. 7.105). See also GATT Panel Reports, EEC – Parts and Components , para. 5. 4; Greece – Import 
Taxes , para. 5; Canada – Gold Coins , para. 49 and Panel Report, Argentina – Hides and Leather , para. 11.139.  
60 The panel also explained that only in the very specific circumstance of state -trading enterprises 
involving a monopoly over bo th importation and distribution of goods, such as in the case of Korea – Various 
Measures on Beef , the traditional distinction between measures affecting imported products and measures 
affecting importation may be blurred. Panel Report, India – Autos , para . 7.221 and footnote 410 (citing Panel 
Report, Korea – Various Measures on Beef , para. 766).  
61 See Panel Report, EC – Asbestos, paras . 8.91 -8.95 (referring to GATT Panel Report, US – Section 337 
of the Tariff Act of 1930 ); and Panel Report, Argentina – Hides and Leather , paras. 11.150 and 11.154.  
62 Article 22(c) and Article 23 of the Minister of Agriculture Decree 306/1994 concerning slaughtering of 
poultry and handling of poultry meat and its by -products, Exhibit IDN -83. 
63 Indonesia's first written submiss ion, para. 94.  
64 Indonesia's first written submission, para. 109; Indonesia's rebuttal submission, paras. 98 -109. 
65 Indonesia's first written submission, paras. 118 -124. WT/DS484/R/Add.1  
 
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  import restriction inconsistent with this provision. This is because, as  explained, Brazil failed to 
demonstrate that the general prohibition/overarching measure has a limiting effect.66 
51. Thus, due to the highly abstract nature of Brazil's claim on the general 
prohibition/overarching measure, Indonesia submits that Brazil fa iled to make its prima facie  case 
that this measure was inconsistent with both Article 4.2 of the Agreement on Agriculture and 
Article XI:1 of the GATT 1994.67  
B. HALAL LABELLING REQUIREMENTS  
1. Brazil has not demonstrated that the halal labelling require ments are 
inconsistent with Indonesia's obligations under Article III:4 of the GATT 1994  
52. Brazil challenged Indonesia's halal "labelling" requirements imposed through, inter alia , Law 
No. 33/2014 (Halal Law).68   
53. Brazil claimed that Indonesia's halal  "labelling" requirements violate Article III:4 of the GATT 
1994. First, Brazil argued that Indonesia discriminated against Brazilian producers by granting a 
five-year grace period from the halal "labelling" requirement only to domestic products, but not t o 
imported products. Brazil considered the certification requirements fell under labelling. Indonesia 
explained that what Brazil referred to as "labelling" was actually "certification".69  
54. Indonesia enacted Law No. 33/2014 (Halal Law) to unify the halal  assurance requirements 
under one instrument and to create new government bodies to guarantee halal product assurance, 
in coordination with the Indonesian Ulama Council (MUI). Article 4 of Law No. 33/2014 (Halal Law) 
provides that "products that enter, cir culate and [are] traded in the territory of Indonesia must be 
certified halal". The Halal Product Assurance Organizing Agency (BPJPH) was the new agency 
formed by the Government to certify products as halal.70 Article 67(1) provides that the "obligation 
of halal certification that circulate and [are] traded in the territory of Indonesia as intended in 
Article 4 comes into effect 5 (five) years from the [enactment] of this Law." Moreover, Article 64 
provides that "the formation of the BPJPH .... must be forme d no later than three years 
commencing from the [enactment] of this Law." Thus, it was expected that it would take three 
years to set up the BPJPH and another two years for the BPJPH to establish procedures before 
which its Halal Certification procedures w ould be mandatory.  
55. However, the obligation for establishments to obtain halal certification was still required until 
the BPJPH was formed. Article 60 provides that "MUI still conducts its task in Halal Certification 
until BPJPH is formed." The requirem ent to obtain halal certification through the MUI, therefore, 
applied to both domestic and imported products throughout this grace period. It is only the BPJPH, 
as a body, that received the grace period. Indonesia submits that Brazil has not established a 
prima facie  case that the grace period constitutes discrimination with respect to the halal 
certification requirement.71 
56. Second, Brazil argued that the implementation of the halal labelling is discriminatory 
because Indonesian producers can sell chicken  meat and chicken products without the halal label, 
whereas foreign products had to have a halal label. Indonesia recalls that for a violation of Article 
III:4 to be established, three elements must be satisfied: (i) the imported and domestic products 
at issue are "like products"; (ii) the measure at issue is a "law, regulation, or requirement affecting 
the products' internal sale, offering for sale, purchase, transportation, distribution, or use", and 
(iii) the imported products are accorded "less favourab le treatment" than that accorded to like 
domestic products.72  Brazil has not satisfied these elements.  
                                                
66 Indonesia's first written submission, paras. 125 -127; Indonesia's opening statement at the first 
meeting, paras. 54 -58. 
67 Indonesia's first written submission, para. 128.  
68 Brazil's panel request, p. 6.  
69 Indonesia's opening statement at the first meeting, paras. 113 -115. Indonesia's opening statement at 
the second meeting, para 47.   
70 See Articles 1(5) to 1(11) of Law 33/2014 (Halal Law), Exhibit IDN -5.   
71 See Indonesia's opening statement at the second meeting, paras. 46 and 47.  
72 Appellate Body Report, Korea – Various Measures on Beef , para. 133.  WT/DS484/R/Add.1  
 
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  57. Brazil argued that imported chicken meat and products were like domestic chicken meat and 
products.73  Indonesia disagreed. Indonesia recalls that th e determination of "likeness" under 
Article III:4 of the GATT 1994 is "…fundamentally, a determination about the nature and extent of 
a competitive relationship between and among products."74 As the determination of likeness 
relates to the competitive relat ionship between domestic and imported products in the relevant 
marketplace ,75 a panel should base its analysis on the products that actually  compete in the 
relevant market. For example, in Indonesia, domestic fresh  chicken meat does not compete with 
importe d fresh chicken meat because it would be virtually impossible for Brazil to import fresh 
chicken into Indonesia. Fresh chicken has a storage life of less than one day. A consignment from 
Brazil to Indonesia that is transported via marine cargo would take a round 30 days, while 
transportation by air from São Paolo to Jakarta takes more than 45 hours and would be 
prohibitively expensive. Thus, in all likelihood, considering the distance, the transport time and the 
prohibitive transportation cost (if by air), B razil would only import frozen chicken meat and 
products into Indonesia.76 In contrast, domestic chicken meat is usually sold fresh in traditional 
markets.77  
58. Indonesia further explained that although, the end -uses of fresh and frozen products are 
simila r for the ultimate consumer, the products at issue are not classified under the same  
HS-six-digit code and they have different products characteristics that affect heavily consumer 
tastes and habits in the Indonesian market.78 Indonesia did not dispute tha t the halal labelling 
requirements are domestic regulations falling under Article III:4.  
59. Brazil argued that imported chicken meat and products were accorded "less favourable 
treatment" than that accorded to like domestic products. Brazil relied on the  text of Article 38 of 
Law No. 33/2014 (Halal Law), which provides that "halal labels must be affixed on (a) product's 
packaging; (b) specific part of the products, and/or (c) specific place of the product".79 Indonesia 
explained although the Halal Law appl ies to a wide range of products including cosmetics, chemical 
products and consumer goods,80 Government Regulation No. 69/1999 is the more specific 
regulation providing that halal labels do not need to be affixed to "food directly sold and packed 
before buy ers". For example, it is common practice to sell fresh chicken without a halal label 
affixed directly on the product, but have the halal certificates for the products and for the 
slaughterman displayed at the point of sale in the traditional markets.81 Thus, Indonesia requires 
halal compliance (albeit through different methods) for both frozen/chilled chicken sold in 
packages and for fresh chicken sold unpackaged. Therefore, there is no "less favourable 
treatment" accorded to imported chicken meat and produc ts. In any event, at a late stage of the 
proceedings, Brazil stated that it "accepts Indonesia's contention that because Government 
Regulation 69/1999 is more specific it should prevail over Law 33/2014".82  This means that 
Brazil's original arguments that Article 38 of Law No. 33/2104 requiring halal labels be placed on 
specific parts of fresh products prevailed over the exception in Government Regulation 69/1999 on 
"food directly sold and packed before buyers in a small number" are no longer valid.83 
60. Third, Brazil claimed that previously -frozen (thawed) chicken meat must be allowed to be 
sold as fresh chicken, i.e. unpackaged and unlabelled when sold before consumers in small 
quantities.84  Indonesia argued that fresh, chilled and frozen chicken are not l ike products.85 
Moreover, there are legitimate grounds for distinguishing between the places where sellers can sell 
                                                
73 Brazil's first written submission, p ara. 285.  
74 Appellate Body Report, EC – Asbestos , para. 99.  
75 Appellate Body Report, EC – Asbestos , para. 103 (emphasis added).  
76 Indonesia's first written submission, para. 149 and footnote 188.  
77 Indonesia's first written submission, para.159.   
78 Indone sia's first written submission, paras. 316 -328. 
79 See Brazil's response to Panel Question No. 46.  
80 See Article 1(1) of Law No. 33/2014 (Halal law).  
81 See Indonesia's first written submission, paras. 316 -328; Indonesia's  response to Panel Question 
No. 43. See also Exhibit IDN -118.   
82 See Brazil's response to Panel Question No.143.  
83 See Indonesia's comment on Brazil's responses to Panel Question No. 143.  
84 See Brazil's response to Panel Question No. 144.  
85 Indonesia's comments on Brazil's responses to Pane l Questions after the second meeting, paras. 62 -
66 and 120.  WT/DS484/R/Add.1  
 
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  fresh chicken as compared to chilled/frozen products. These legitimate grounds are also reflected 
in the laws and regulations of other countr ies, notably Brazil itself and the Philippines.86 
61. In the light of the foregoing, Indonesia submits that Brazil has not made a prima facie  case 
that the implementation of halal labelling requirements is inconsistent with Indonesia's obligations 
under Art icle III:4 of the GATT 1994. Brazil has not met its burden of proof and its claim should 
therefore be dismissed.  
2. If the Panel were to find that the halal labelling requirements are inconsistent 
with Article III:4, this measure is justified under Articl e XX(a) and Article XX(d) 
of the GATT 1994  
62. If, however, the Panel were to find otherwise, Indonesia submits that the halal labelling 
requirements are justified under Article XX(a) and (d) of the GATT 1994. For a measure to be 
provisionally justified un der Article XX(a) or Article XX(d) of the GATT 1994, a panel must conduct 
a two -step analysis. First, a panel must address whether the measure is designed and necessary 
"to protect public morals" or "to secure compliance with laws or regulations which are not 
inconsistent with the provisions of this Agreement", respectively. Then, a panel must address 
whether the application of the measure does not unjustifiably or arbitrarily discriminate among 
countries where the same conditions prevail or otherwise lead to a disguised restriction on 
international trade (the chapeau ). 
63. With respect to the provisional justification under Article XX(a), Indonesia notes that the 
halal labelling requirements are "designed to protect public morals".87 Indonesia recalls that t he 
examination of whether a measure is designed to protect public morals is not "particularly 
demanding".88 A measure will be designed to protect public morals if it is "not incapable of" 
protecting public morals.89 The preamble of Law No. 33/2014 (Halal Law ) makes clear that the 
halal requirements are designed to protect the religious principles of the majority Muslim 
population by guaranteeing that the products they are consuming are halal. The halal 
requirements are also "necessary to protect public morals " as they make a meaningful contribution 
to ensure that consumers are not misled as to what they are eating. In addition, the halal 
requirements are not trade -restrictive as they apply to all packaged products, whether domestic or 
imported. Indonesia submi ts that the relatively slight impact on packaged products is more than 
outweighed by the importance of the religious values Indonesia is attempting to protect through its 
halal labelling laws and regulations.  
64. With respect to the provisional justificat ion under Article XX(d), Indonesia notes that the 
halal labelling requirements are "designed to secure compliance with laws and regulations" that 
are not inconsistent with the GATT 1994.90 This is demonstrated by many textual linkages between 
the halal labe lling requirements and the laws and regulations they seek to implement. In addition, 
the halal labelling requirements are "necessary to secure compliance with laws and regulations" 
that are not inconsistent with the GATT 1994 as they provide information to  the consumer about 
the product he or she is consuming so that consumers are not misled as to what they are eating. 
In addition, they are not trade -restrictive as they apply to all packaged products, whether 
domestic or imported. If the Panel were neverthe less to consider these requirements as trade 
restrictive, Indonesia submits that the "relatively slight impact on imported products" is more than 
outweighed by the importance of the religious values Indonesia is attempting to protect through its 
halal labe lling laws and regulations.  
65. Once a panel has weighed and balanced these different factors, it must then compare the 
challenged measure with possible alternative measures that achieve the same level of protection 
while being less trade -restrictive. The  burden of submitting reasonably available alternatives lies 
                                                
86 Indonesia's comments on Brazil's response to Panel Question No. 10..  
87 See Indonesia's first written submission, paras. 342 -356; and Indonesia's opening statement at the 
first meeting, paras. 11 0-132. 
88 Indonesia's opening statement at the first meeting, para. 117.  
89 See Indonesia's opening statement at the first meeting, paras. 116 -119. See also Appellate Body 
Report, Colombia – Textiles , para. 5.68.  
90 See Indonesia's first written submission, p aras.342 -356 and Indonesia's opening statement at the 
first meeting, paras. 110 -132. WT/DS484/R/Add.1  
 
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  with the complainant, Brazil.  Brazil has never provided a less trade restrictive alternative to the 
halal labelling requirement.  
66. Turning to the chapeau  of Article XX, it is well established that this provision is concerned 
with the manner in which the measure is applied. In undertaking an analysis under the chapeau , a 
panel must examine the design, architecture, and revealing structure of a measure.91  
67. Indonesia submits that the halal labe lling requirements are not discriminatory as they apply 
to all packaged products, whether domestic or imported. If the Panel nevertheless were to find 
that discrimination exists because the halal labelling requirements apply only to packaged foods, 
Indones ia submits that there is a rational connection between the policy objective of protecting the 
religious beliefs of Indonesian Muslims not to eat non -halal products and informing them as to 
whether they are purchasing legitimate halal products. To be clear,  the halal labelling 
requirements are not applied differently to countries in which the same conditions prevail. They 
are applied to all packaged products from all countries (including Indonesia) in a consistent 
manner.   
68. Finally, under the chapeau  of Article XX, a measure must not constitute a disguised 
restriction on international trade, e.g., "concealed or unannounced restriction or discrimination in 
international trade".92 The halal labelling requirements do not amount to a disguised restriction on 
international trade because the measures are transparent. The halal labelling requirements are 
published in, inter alia , Law 33/2014 (Halal Law) and Article 97 of the Law 18/2012 (Food Law).93 
69. In sum, Indonesia submits that the halal labelling requiremen ts are not inconsistent with 
Article III:4 of the GATT 1994. If the Panel were to consider otherwise, Indonesia submits that this 
measure is justified under Article XX(a) and Article XX(d) of the GATT 1994.  
C. INTENDED USE REQUIREMENT  
1. Brazil has not de monstrated that the intended use requirement is inconsistent 
with Indonesia's obligations under Article III:4 of the GATT 1994  
70. Brazil claimed that Indonesia's intended use requirement violated Article III:4 of the GATT. 
Indonesia recalls that for a vio lation of Article III:4 to be established, three elements must be 
satisfied: (i) the imported and domestic products at issue are "like products"; (ii) the measure at 
issue is a "law, regulation, or requirement affecting the products' internal sale, offerin g for sale, 
purchase, transportation, distribution, or use, and (iii) the imported products are accorded "less 
favourable treatment" than that accorded to like domestic products.94  Brazil has not satisfied 
these elements.  
71. As discussed above, Indonesia explained that fresh, and frozen and chilled chicken are not 
"like products".95 In addition, Indonesia noted that the intended use requirement was an internal 
measure imposed with respect to imported products at the moment of importation.96  
(a) Previous reg ime 
72. Before the enactment of MoA Regulation No. 34/2016, Indonesia required that frozen and 
chilled chicken meat and chicken products  to be sold in industries, hotels, restaurants, catering, 
or be used for other specific purposes.97 Article 22 and 23 of  Minister of Agriculture Decree 
306/1994 provide that domestic frozen and chilled poultry meat must be offered for sale in meat 
shops and supermarkets "equipped with cooler facilities (refrigerator and/or freezer)".98 Such 
facilities had not been available in traditional markets. This intended use requirement aimed at 
                                                
91 Appellate Body Report, Japan – Alcoholic Beverages II , p. 29, DSR 1996:I, p. 120.  
92 Appellate Body Report, US – Gasoline , p. 25.  
93 See Indonesia's opening statement at t he first meeting, para. 131.  
94 Appellate Body Report, Korea – Various Measures on Beef , para. 133.  
95 See also Indonesia's first written submission, paras. 147 -164. 
96 Indonesia's first written submission, paras. 81 -89; Indonesia's opening statement at the f irst 
meeting, paras. 41 -47; and Indonesia's responses to Panel Questions No. 50 -53 and 55.  
97 See Section II.B.3 of Indonesia's rebuttal submission.  
98 Article 22(c) and Article 23 of the Minister of Agriculture Decree No. 306/1994, Exhibit IDN -83. WT/DS484/R/Add.1  
 
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  ensuring that "frozen" or "chilled" chicken meat and products were not sold in markets that did not 
have proper cold -chain systems. It is generally recommended that frozen meat should ideally b e 
thawed inside refrigerated facilities.99 Indonesia must also ensure that previously frozen products 
were not thawed and refrozen.100 It is noteworthy that Brazil shares these same food safety 
concerns. In fact, Brazil requires thawing to be carried out in a  refrigerated facility and prohibits 
the refreezing of thawed products.101  
73. Brazil argued that the intended use requirement meant that imports "could not reach the 
most important distribution channels" while domestic products "had open and free access to  the 
'wet markets'" "which represent around 70% of the Indonesian consumer market".102 Indonesia 
explained that Articles 22 and 23 of Minister of Agriculture Decree 306/1994 provide that all frozen 
and chilled poultry meat must be offered for sale in meat sh ops and supermarkets "equipped with 
cooler facilities (refrigerator and/or freezer)". As a result, neither domestic nor imported frozen 
products had "open and free access to the 'wet markets'".  
74. Brazil argued that chicken products that had been imported  for one intended use e.g. hotels, 
could not be redirected to another intended use, e.g. restaurants.103  There is no basis for this 
assertion. Indonesia recalls that Article 31 of MoA Regulation No. 58/2015 provides that "intended 
use  ... is for hotels, re staurants, caterings, industries, and other particular purposes". Article 38 
(e) of the same Regulation provides that there would be sanctions for a breach of the intended use 
requirement. These sanctions apply when an importer directs the chicken products  to a place other 
than those listed in Article 31. They do not apply when an importer redirects the products to 
another place listed in Article 31.104  
(b) Current regime  
75. Under the current regime, MoA Regulation No. 34/2016 terminated the intended use 
requirement by providing that frozen and chilled chicken meat can be sold in any market with cold -
chain facilities, including traditional markets with cold chain facilities. This regulation also requires 
importers to provide a distribution plan and a distri bution report. The distribution plan requires the 
importer to indicate an estimate of the products it intends to import and information with respect 
to potential buyers that must have cold -chain facilities available. The distribution report requires 
import ers to submit information with respect to the actual imports and the actual buyers that are 
required to have cold -chain facilities available.  
76. Brazil argued that Indonesia simply replaced the term "modern markets" used in MoA 
Regulation No. 39/2014 wit h "markets with cold chain facilities" in MoA Regulation No. 34/2016. 
Brazil stated that "this seemingly more flexible formulation was, however, made more restrictive 
by the requirement [to] submit a "distribution plan" [and] "distribution reports" (every Thursday) 
so as to confirm that importers did not evade the previous plan".  Indonesia explained that the 
term "markets with cold chain facilities" is a broader term, which includes, but is not limited to, 
"modern markets". Modern markets are  characterized  by offering a wide variety of products with a 
longer shelf life including pre -packaged and/or processed products, such as minimarkets, 
supermarkets, and hypermarkets. In contrast, "market with cold chain facilities" can be any 
market, including traditiona l markets, to the extent they have refrigerators, freezers or any other 
cold-chain facility. The difference between these two types of markets is critical. While MoA 
Regulation No. 34/2016 allows the sale of frozen/chilled products in traditional markets w ith cold 
chain facilities, the previous MoA Regulation No. 39/2014 did not.  
77. Brazil also argued that importers are now tied to the terms of the distribution plan submitted 
in the application process and any deviation may subject the importer to harsh s anctions.105 
Indonesia explained that importers are not tied to the terms of the distribution plan because they 
do not need to match the distribution report. Sanctions only apply when the importer fails to 
                                                
99 See, inter alia , Exhibit IDN -85. 
100 Indonesia's first written submission, para. 134.  
101 See Article 1.1 of Brazil's Resolution No. 216/2004 on good practices  for food services, Exhibit 
IDN-150 and Brazil's Normative Instruction DIVISA/SVS No. 4/2014 on good practic es for commercial food 
establishments and food services, Exhibit IDN -151. 
102 Brazil's first written submission, paras. 278 -283 and 289.  
103 Brazil's rebuttal submission, para. 55.  
104 Indonesia's rebuttal submission, para. 141.    
105 Brazil's opening statement a t the second meeting, para. 20.  WT/DS484/R/Add.1  
 
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  submit the required documents in the first place.106 In addition, an equivalent requirement is 
applied to domestic producers when they apply for their meat distributor license.107 This license 
requires that applicants disclose the delivery, type, area of the products, the report of sales for the 
last three mont hs, as well as the meat distributor permit history.108 
78. Brazil argued that the distribution report served to confirm that chicken products that had 
been imported for one intended use, e.g. hotels, were not redirected to another intended use, e.g. 
restaura nts, and any deviation would be subject to sanctions.109 Indonesia notes that although 
there are enforcement provisions in Article 38 of MoA Regulation No. 34/2016, they apply only if 
the importer deviates from the terms listed in the Import Recommendation, i.e. if he sells at a 
market without  a cold chain facility.  Moreover, there is no sanction if the distribution plan does not 
match the distribution report. These sanctions only apply when the importer fails to submit the 
required documents in the first pla ce.110 
79. In light of the above, Indonesia submits that the intended use requirement is not 
inconsistent with Article III:4 of the GATT 1994.  
2. If the Panel were to find that the intended use requirement is inconsistent with 
Article III:4, this measure is  justified under Article XX(b) and Article XX(d) of the 
GATT 1994  
80. Should the Panel nevertheless consider otherwise, Indonesia demonstrated that this 
measure was justified under Article XX(b) and Article XX(d) of the GATT 1994.111 
81. To recall, for a mea sure to be provisionally justified under Article XX(b) or Article XX(d) of 
the GATT 1994, a panel must determine whether the measure is designed and necessary "to 
protect human health" or "to secure compliance with laws or regulations which are not inconsi stent 
with the provisions of this Agreement", respectively. Following this determination, a panel must 
address whether the application of the measure complies with the requirement of the chapeau  of 
Article XX.  
82. With respect to the provisional justifica tion under Article XX(b), Indonesia noted that the 
intended use requirement is designed to, and necessary to, protect public health.112 The intended 
use requirement is designed to protect public health, a value of the highest degree of 
importance,113 as it pro hibits the sale of frozen or chilled chicken in markets without cold -chain 
facilities. By doing so, the intended use requirement contributes to ensure that only safe chicken is 
sold in Indonesia. Indonesia has submitted several scientific articles114 and  re gulations 
establishing food safety requirements from WTO Members115 on the risks of (i) thawing frozen 
chicken meat at open -air temperatures, and (ii) refreezing products that had previously been 
frozen and then thawed at open -air temperatures. In addition, the intended use requirement is not 
trade -restrictive as it applied in an equivalent manner to both imported and domestic products.  
83. With respect to the provisional justification under Article XX(d), Indonesia notes that the 
intended use requirement is designed to, and necessary to, secure compliance with laws and 
regulations that are not inconsistent with the GATT 1994.116 The intended use requirement is 
designed to ensure compliance with consumer protection laws and regulations. This is 
demonstrated by t he textual linkages between the intended use requirement and the laws and 
                                                
106 See Indonesia's response to Panel Question No. 88(a).  
107 See Requirements to obtain a Meat Distributor License, retrieved from: 
http://pelayanan.jakarta .go.id/site/detailperizinan/472 , Exhibit IDN -131. 
108 Ibid. 
109 Brazil's opening statement at second meeting, para. 20.   
110 Indonesia's response to Panel Question 88(a).  
111 Indonesia's first written submission, paras. 179 -216; Indonesia's opening statement at the first 
meeting, paras. 62 -79. 
112 See Indonesia's first written submission, paras.342 -356 and Indonesia's opening statement at the 
first meeting, paras. 110 -132. 
113 Appellate Body Report, EC – Asbestos , para. 172.  
114 Exhibits IDN -54, IDN -55 and IDN -56. 
115 Exhibits IDN -84 and IDN -85. 
116 See Indonesia's first written submission, paras.342 -356 and Indonesia's opening statement at the 
first meeting, paras. 110 -132. WT/DS484/R/Add.1  
 
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  regulations it seeks to implement.  Indonesia notes that thawed chicken meat is deceptively 
similar to fresh chicken meat. The sanctions imposed in case of violation of the intended use 
requirement on sellers of imported products (that is, the revocation of the Import 
Recommendation)117 contribute to the prevention of deceptive practices against consumers, as 
sellers will be reluctant to thaw frozen products and present them as fresh, i n the light of the 
possible sanctions they may face. Indonesia submitted that the intended use requirement is not 
trade -restrictive as it applied in an equivalent manner to both imported and domestic products.  
84. Once a panel has weighed and balanced the se different factors, it must then compare the 
challenged measure with possible alternative measures that achieve the same level of protection 
sought by the concerned Member, while being less trade -restrictive. Brazil provided "alternatives" 
that would not  have achieved the specific objective and level of protection Indonesia sought with 
respect to the (now expired) intended use requirement, namely, to protect the public health of 
consumers by preventing frozen products from being thawed at tropical tempera tures in open -air 
markets and to prevent consumers from being misled into buying thawed products believing they 
were fresh products. For example, Brazil's alternative of introducing a mandatory good hygienic 
practice (GHP) plan for establishments selling c hicken meat is not a valid alternative as the 
Minister of Agriculture Decree No. 306/1994 already provides for good hygienic and sanitary 
practices. In addition, some of Brazil's alternatives became moot with the introduction of cold -
chain facilities at th e traditional markets. Nowadays, a consumer can buy a frozen product in a 
traditional market, keep it in a cold storage thermal bag, go home and put it safely in his freezer.  
85. Turning to the chapeau  of Article XX, it is well established that discriminat ion under the 
chapeau  is only possible "among countries where the same conditions prevail". In Indonesian 
traditional markets, chicken meat and products are mostly sold fresh and unpackaged. In contrast, 
imported products are frozen and packaged. Indonesia  submitted that there is a different risk 
posed by frozen meat being thawed in open -air spaces compared to fresh meat that has been 
slaughtered a few hours before. Even if both products are exposed to tropical open -air conditions, 
fresh chicken meat does n ot have the excessive moisture conducive to bacteria growth as does 
frozen chicken. Therefore, there is no discrimination vis -à-vis imported products. Indonesia treats 
all frozen products in the same way, regardless of their origin, by preventing their sal e in markets 
without proper cold -chain facilities.  
86. If the Panel were nevertheless to find that discrimination exists, Indonesia submits that 
there is a rational connection with the policy objective of protecting public health and ensuring 
compliance wi th food safety and consumer protection regulations. In addition, the intended use 
requirement does not constitute a disguised restriction on international trade as it is a transparent 
measure published in MoA Regulation No. 34/2016.118  
87. In sum, Indonesia  submits that the intended use requirement is not inconsistent with Article 
III:4 of the GATT 1994. If the Panel were to consider otherwise, Indonesia submits its measure is 
justified under Article XX(b) and Article XX(d) of the GATT 1994.  
D. POSITIVE LIST REQUIREMENTS  
88. Brazil claims that the positive list requirements constitute a "prohibition or restriction" 
inconsistent with Article XI:1 of the GATT 1994. Brazil argues that this measure prohibits or 
restricts the importation into Indonesia of chicken  meat and chicken products not included in the 
positive lists.119  
89. Under the previous regime, t he positive list was introduced in response to an incident in 
1999, where Tyson Foods of the United States sent a shipment of chicken cuts that was part halal 
                                                
117 Article 38(e) of the MoA Regulation No. 58/2015, Exhibit IDN -24. 
118 Indonesia's first written submi ssion, paras. 213 -216; and Indonesia's opening statement at the first 
meeting, paras. 76 -79. 
119 Brazil's first written submission, paras. 192 -194. In addition, Brazil claimed that the positive list 
requirements constituted a "quantitative import restriction " or a "border measure similar to quantitative import 
restrictions" within the meaning of footnote 1 to Article 4.2 of the Agreement on Agriculture; and that this 
measure was also inconsistent with Article 3.2 of the Import Licensing Agreement. Brazil's fi rst written 
submission, paras. 219 -223, 251. Indonesia addressed the relationship between Article 4.2 of the Agreement 
on Agriculture, Article 3.2 of the Import Licensing Agreement and Article XI:1 of the GATT in other parts of this 
summary. Therefore, Ind onesia addresses only Brazil's claim under Article XI:1.  WT/DS484/R/Add.1  
 
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  and part non -halal. T he Tyson incident was not an isolated incident. Rather, there were other 
instances that caused unrest among the majority Muslim community in Indonesia (87 per cent of 
the population) and led the Indonesian Government to take steps to e nsure the integrity and 
halalness of all imported products.120 
90. Under the current regime, the Ministry of Trade and the Ministry of Agriculture have further 
liberalized Indonesia's trade policies with respect to the importation of chicken meat and chicken  
products. Under the current regime, neither the MoA nor the MoT Regulations provide for positive 
list requirements. Article 7(3) of MoA Regulation No. 34/2016 provides that chicken meat and 
chicken products that are not included in the relevant attachment s to these Regulations may be 
imported in Indonesia as long as they meet the requirements of being safe, healthy, wholesome 
and halal (ASUH requirements).  
91. With respect to the current regime, Brazil argued that compliance with the ASUH 
requirements only  provided an "abstract possibility of importation" and that the assessment of 
compliance with these requirements was "discretionary". Indonesia noted that the expression 
"may still be granted recommendation" is not used to express an "abstract possibility of 
importation", but rather the concrete conditions precedent that must be met prior to the granting 
of the Import Recommendation, i.e. that the importer: (i) applies for the Import 
Recommendation,121 and (ii) complies with the ASUH  requirements. Moreover, I ndonesia explained 
that there are objective criteria for the assessment of compliance with the ASUH requirements.122 
For example, compliance with Indonesia's halal requirements is assessed by customs officials 
through the inspection of the Halal Certificate.123  
92. Moreover, Brazil's concern that both "listed" and "non -listed" chicken meat and chicken 
products have to comply with ASUH requirements, but only "listed" chicken products enjoy 
certainty of being granted approval is without merit. The Annexes to MoA  Regulation No. 34/2016 
and MoT Regulation No. 59/2016 do not serve any purpose at this point in time. Indonesia has 
explained that pursuant to Article 2(b) of MoA Regulation No. 34/2016, the ASUH requirements 
apply to all imported products . In addition, ASUH as a comprehensive principle has existed since 
Animal Law No. 18/2009 was enacted. In addition, halal requirements date back to Law No. 
6/1967 (previous Animal Law).124  Safety requirements have applied ever since importation first 
took place. These safe ty and halal requirements continue to apply in accordance with, inter alia , 
MoA Regulation No. 34/2016.125  
93. To sum up, if an importer applies for an Import Recommendation and the imported products 
comply with the ASUH requirements (regardless of whether they are listed or not listed in the 
annexes to MoA Regulation No. 34/2016), the Import Recommendation will be granted.  
94. If the Panel were nevertheless to find that the positive list requirements are inconsistent 
with Article XI:1 of the GATT 1994, Ind onesia justified this measure under Article XX(d) of the 
GATT 1994.126 
95. In its submissions, Indonesia identified specific laws with which the measure was designed 
to secure compliance. Furthermore, Indonesia showed that the positive list requirements were  
"designed to secure compliance with the relevant laws and regulations" by pointing to the textual 
linkages between the positive list requirements and the laws and regulations it seeks to secure 
compliance with. In addition, Indonesia submitted that the po sitive list requirements were 
"necessary to secure compliance with the relevant laws and regulations" as  they prevented the 
circumvention of Indonesia's halal requirements.127 Indonesia also considers that the importance 
of its objective and the existence o f the contribution of the measure to the objective outweighed 
the relatively insignificant trade -restrictiveness of the measure. Nothing prevented Brazilian 
                                                
120 Opening statement of Indonesia at the first meeting, para. 89. See Letter by Indonesia's Minster of 
Agriculture, Exhibit IDN -82; Letter by the US Secretary of Agriculture, Exhibit IDN -81. 
121 See Art icle 4(3) of MoA Regulation No. 34/2016.  
122 See Indonesia's response to Panel Question No. 77(a).  
123 Exhibit IDN -92(c).  
124 See Law of the Republic of Indonesia No. 6/1967 Concerning Basic Provisions on the Husbandry and 
Animal Health (previous Animal Law), Ex hibit IDN -129. 
125 See Indonesia's response to Panel Question No. 77(a).  
126 Indonesia's first written submission, paras. 230 -231. 
127 Indonesia's first written submission, para. 232.  WT/DS484/R/Add.1  
 
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  exporters from exporting to Indonesia whole carcasses of chicken, provided that Indonesia's halal 
requirements were fulfilled. Thus, in Indonesia's view, the measure is not highly trade restrictive.  
96. Indonesia further submitted that the positive list requirements were justified under the 
chapeau  of Article XX. The chapeau  of Article XX requires the measure not to be "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".128 
Indonesia applied the positive list  requirements in a non -discriminatory manner to chicken meat 
and chicken products imported from all Members.129 However, even if the Panel were to find that 
the positive list requirements accorded discriminatory treatment to imported chicken from Brazil, 
Indonesia submits that the discriminatory application of the measure is not unjustifiable or 
arbitrary. On the contrary, it is justifiable when considered in the light of the objective of the 
measure to secure compliance with Indonesia's halal requirements.130 Put differently, the 
discrimination, to the extent that it existed, was necessary to achieve the measure's objective. 
Furthermore, again, the fact that there are important differences between the conditions that 
prevail in Indonesia and Brazil, namely that  Indonesia is the country with the world's largest 
Muslim population, resolves any doubts as to whether the discriminatory treatment was arbitrary 
or unjustifiable. It was not.  
97. Finally, Indonesia submits that the question of whether the measure was a d isguised 
restriction on international trade cannot be addressed in isolation from the analysis of the other 
elements of the chapeau .131 The fact that the measure meets the requirements of the first two 
elements confirms that it is not a disguised restriction . In any event, the positive list requirements 
are a transparent regulation published in MoA Regulation No. 39/2014 and MoT Regulation No. 
46/2013.  
E. IMPORT LICENSING REGIME  
1. Most of Brazil's claims with respect to Indonesia's import licensing regime a re 
repetitive, not supported by adequate evidence and arguments, or outside the 
Panel's terms of reference  
98. Brazil challenges almost identical elements of Indonesia's import licensing regime under 
Article XI:1 of the GATT 1994, Article 4.2 of the Agreem ent on Agriculture, and Article 3.2 of the 
Licensing Agreement. In particular, Brazil claims that the following elements of the import 
licensing regime "constitute restrictions on the importation of chicken meat and chicken products" 
that are inconsistent with both Article 4.2 of the Agreement on Agriculture and Article XI:1 of the 
GATT 1994: (i) the positive list requirements; (ii) the intended use requirement; (iii) the limited 
application and validity periods; and (iv) the fixed license terms. The first two elements were also 
challenged as individual measures. With respect to these elements, Brazil simply incorporated by 
reference its arguments made in the context of its other claims.132 
99. In addition, in the course of these proceedings, Brazil raised a n umber of additional claims 
that were either unsubstantiated, or outside the Panel's terms of references. For example, Brazil 
claimed in the alternative, without providing adequate evidence and arguments, that the elements 
of Indonesia's import licensing re gime at issue constitute "similar border measures other than 
ordinary customs duties" within the meaning of footnote 1 to Article 4.2 of the Agreement on 
Agriculture. Brazil did not make its prima facie  case with respect to these claims.133 
100. Along the sa me lines, Brazil challenged the first, second and third elements of Indonesia's 
import licensing regime as inconsistent with Article 3.2 of the Licensing Agreement. However, 
Brazil did not explain adequately why these measures constitute " non-automatic " "import licensing 
procedures " within the meaning of Articles 1.1 and 3.1 of the Licensing Agreement, which is a 
threshold issue that must be addressed before analysing the consistency of a measure with Article 
                                                
128 Indonesia's first written submission, paras. 209 -212. 
129 Indonesia's first wr itten submission, para. 233.  
130 See Indonesia's first written submission, para. 210.  
131 Appellate Body Report, US – Gasoline , p. 25.  
132 See Indonesia's first written submission, paras. 235 -247; Indonesia's rebuttal submission, paras. 
120-123 (citing Brazil's first written submission, paras. 200 -201, 212, 228 -231).  
133 Indonesia's rebuttal submission, para. 123.   WT/DS484/R/Add.1  
 
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  3.2. Furthermore, Brazil did not provide any arg uments or evidence proving that the relevant 
aspects of Indonesia's import licensing regime are inconsistent Article 3.2, in particular they are 
"more administratively burdensome than absolutely necessary". Brazil's interpretation of Article 
3.2 is based o n an erroneous premise that, according to this provision, "a non -automatic 
procedure must be related to the implementation of a permissible 'trade restrictive measure', that 
is, a measure consistent with the relevant provisions of the WTO Agreement".134 Brazil introduces 
this requirement into the legal tests under the first and second sentences of Article 3.2, and 
alleges that the challenged measures failed to satisfy this requirement.135 However, Brazil did not 
explain from where it derived this additional req uirement. Indeed, Indonesia demonstrated that 
Brazil's interpretation lacks any support in the text of Article 3.2, its context (in particular Article 
1.1), negotiating history, and makes little sense from both a legal and a practical perspective. As 
stated clearly in Article 1.1, the Licensing Agreement disciplines administrative procedures , that is, 
import licensing, and is not concerned with a broader question of the WTO -consistency of the 
underlying measures those procedures seek to implement.136 
101. Furthermore, as explained, in Question No. 128, the Panel asked Brazil to clarify whether 
Brazil is also challenging the fixed licence terms under Article  3.2 of the Licensing Agreement and, 
"[i]f so, … where this claim was developed in Brazil's submissions".  In its response, Brazil could 
not point to any passages in its first written submission, as well as other submissions, where it 
provided adequate legal arguments and evidence to develop this claim. Indonesia trusts that the 
Panel will find that Brazil fai led to make its prima facie  case with respect to the alleged 
inconsistency of the aforementioned measures with Article 3.2 of the Licensing Agreement.137  
102. In its response to Panel Question No. 15.b, Brazil stated generally that "[t]o the … extent 
that M oT Regulation 87/2015 and MoT 05/2016 introduce additional requirements and procedures 
to obtain an import license whenever a product is considered a 'certain product', in the first case, 
or is a processed product coming from a country having a risk of spr ead of zoonosis, in the 
second, Brazil submits that these additional restrictions are also at issue in the present dispute". 
Brazil, however, failed to explain which specific measures it is challenging, under which specific 
provisions of the WTO covered ag reements, and on what legal basis.138 
103. A number of Brazil's claims with respect to Indonesia's import licensing regime are not 
properly identified in Brazil's panel request and are, therefore, outside the Panel's terms of 
reference. In addition to Brazil 's challenge to the regime "as a whole" already rejected by the 
Panel in its preliminary ruling, Brazil also challenged: (i) a letter of recommendation from 
provincial livestock services office; (ii) supervision on the compliance of veterinary public healt h 
requirements; and (iii) the alleged discretionary powers in determining "the amount in 
Recommendation per Business Player" under Article 27 of MoA Regulation No. 58/2015. Brazil 
claimed, inter alia , that these measures constitute "discretionary import li censing" within the 
meaning of footnote 1 to Article 4.2 of the Agreement on Agriculture.139  
104. However, even if the Panel were to find that it has jurisdiction over these claims, Indonesia 
demonstrated that Brazil's claims are without merit. The first tw o requirements do not constitute 
"licensing", and the second requirement does not even address the issue of importation. These 
measures cannot, therefore, be characterised as "import licensing". Furthermore, Brazil failed to 
demonstrate that the alleged li censing elements bestow any discretion on Indonesia's authorities, 
as these measures are set out clearly in Indonesia's legislation and are based on transparent 
criteria.140    
105. Indonesia addresses below Brazil's claims that the limited application and v alidity periods 
and the fixed license terms are "quantitative import restrictions" within the meaning of Article 4.2 
                                                
134 See Brazil's rebuttal submission, para. 117.  
135 Brazil's rebuttal submission, paras. 128 and 129.  
136 See Brazil's claim under Article 3.2 discussed in Indonesia's first written submission, paras. 76 -80, 
279-290; Indonesia's responses to Panel Questions No. 48, 57, 58, 59, 60; Indonesia's rebuttal submission, 
paras. 114 -117; Indonesia's opening statement at the second meeting, paras. 22 -36; Indonesia's co mments 
on Brazil's responses to Panel Questions No. 124, 127.  
137 Indonesia's comment on Brazil's response to Panel Question No. 128.  
138 Indonesia's rebuttal submission, paras. 77 -79, 118.  
139 Indonesia's responses to Panel Questions No. 105.  
140 See, inter alia,  Indonesia's first written submission, paras. 267 -275; Indonesia's responses to Panel 
Questions No. 12, 18 and 105; Indonesia's comment on Brazil's response to Panel Question No. 108.  WT/DS484/R/Add.1  
 
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  of the Agreement on Agriculture and Article XI:1 of the GATT 1994. The other claims with respect 
to Indonesia's import licensing regime are  repetitive, not supported by adequate evidence and 
arguments, or outside the Panel's terms of reference.  
2. Brazil has not demonstrated that the limited application and validity periods and 
the fixed license terms are inconsistent with Indonesia's obligat ions under Article 
4.2 of the Agreement on Agriculture  
106. As explained, Indonesia considers that, in the present dispute, Article 4.2 of the Agreement 
on Agriculture applies to the exclusion of Article XI:1 of the GATT 1994. In the context of its claim 
under Article 4.2, Brazil did not substantiate its assertion that the limited application and validity 
periods and the fixed license terms constitute a quantitative import restriction as these measures: 
"(a) unduly restrict market access for Brazilian produ cts; (b) create uncertainty as to an 
applicant's ability to import…; and (c) impose a significant burden on importers that is unrelated to 
their normal importing activity". Brazil further argued that these measures create what Brazil calls 
a "dead zone", i .e. a period during which products cannot be imported into Indonesia. In its 
submissions, Indonesia has, however, demonstrated that, under both previous and current 
regimes, its import licensing procedures are fast and simple. Indeed, despite these measure s, an 
importer could import the products at issue to Indonesia without interruption on terms it 
determined itself in its application for the Import Recommendation. For example, under the 
current regime, producers and importers can make their application fo r an Import 
Recommendation and an Import Approval at any time of the year to import within a six -month 
validity period. The flexibility is that an importer can apply for an infinite number of Import 
Recommendations and Import Approvals, at whichever point in time he wishes throughout the 
year. Brazil has not rebutted these arguments, or provided adequate evidence that Indonesia's 
import licensing regime indeed creates a "dead zone". To the extent that the alleged "dead zone" 
results from the way how Brazili an exporters operate, as Brazil's own evidence suggests, this dead 
zone cannot be attributed to any action or omission of Indonesia.141 
107. Moreover, Brazil did not provide any arguments or evidence showing that the above 
measures are not "maintained under … general, non -agriculture -specific provisions of GATT 1994" 
within the meaning of footnote 1 of the Agreement on Agriculture.142 
108. In light of the foregoing, Brazil failed to prove that the limited application and validity 
periods and the fixed license t erms are one of the measures listed in footnote 1 of the Agreement 
on Agriculture, and are not "maintained under … general, non -agriculture -specific provisions of 
GATT 1994". Brazil thus failed to make its prima facie  case that these measures are inconsist ent 
with Article 4.2 of the Agreement on Agriculture.143 
3. Brazil has not demonstrated that the limited application and validity periods and 
the fixed license terms are inconsistent with Indonesia's obligations under Article 
XI:1 of the GATT 1994  
109. Shoul d the Panel find that Article XI:1 of the GATT 1994 applies to the limited application 
and validity periods and the fixed license terms ( quod non ), as explained, these measures, under 
both previous and current regimes, do not have a limiting effect on impo rts. Brazil, therefore, 
failed to make its prima facie  case of inconsistency with Article XI:1 of the  
GATT 1994.144  
110. Nevertheless, even if the Panel were to find otherwise, these measures are justified under 
Article XX(d) of the GATT 1994.145  
                                                
141 See, inter alia, Indonesia's first written submission, paras. 250 -259, 261-265 (citing Brazil's first 
written submission, paras. 202, 212, 228 -231); Indonesia's rebuttal submission, paras. 9 -22; Indonesia's 
comment on Brazil's response to Panel Question No. 103.  
142 Indonesia's first written submission, para. 277.  
143 Indonesia' s first written submission, para. 278.  
144 See Indonesia's rebuttal submission, paras. 9 -22, 126 -127. See also Indonesia's first written 
submission, paras. 292 -294. 
145 Indonesia's rebuttal submission, para. 128.  WT/DS484/R/Add.1  
 
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  4. If the Panel were to find that the limited application and validity periods and the 
fixed license terms are inconsistent with Article XI:1, these measures are 
justified under Article XX(d) of the GATT 1994  
111. As explained, Article XX(d) of the GATT 1994 allows Members to apply measures that are 
"necessary to secure compliance with laws or regulations which are not inconsistent with the 
provisions of this Agreement, including those relating to customs enforcement, … and the 
prevention of deceptive practices". Ind onesia demonstrated that the limited application and 
validity periods and the fixed license terms are justified under Article XX(d), as these measures 
were designed to secure compliance with Indonesia's laws and regulations addressing halal 
requirements, p ublic health, as well as deceptive practices (consumer protection) and customs 
enforcement relating to the halal requirements and food safety.146 
112. In particular, Indonesia identified certain laws with which the measures at issue ensure 
compliance, such a s Law No. 18/2009 (Animal Law) as amended by Law No. 41/2014; Law No. 
33/2014 (Halal Law); and Law No. 8/1999 (Consumer Protection Law). In this respect, Indonesia 
referred the Panel to the relevant provisions of these laws on food safety, halal requiremen ts, and 
consumer deceptive practices. Furthermore, these laws are "not inconsistent with the provisions of 
[the GATT 1994]". It is a general principle that a Member's law is recognized to be WTO -consistent 
until proven otherwise. Brazil has not provided th is proof.147  
113. Indonesia further explained how the application and validity periods and the fixed license 
terms contribute to securing compliance with these laws. At the outset, Indonesia noted that even 
though these measures are challenged as individual  measures, they are the interrelated elements 
of Indonesia's import licensing regime for chicken. These measures are integral parts of 
Indonesia's comprehensive package of measures that aim at fulfilling the same objective. Although 
these measures operatin g together contribute to Indonesia's objective, it is difficult to segregate 
the individual  contributions they make to Indonesia's objective.148  
114. With respect to the issue of contribution, Indonesia explained that it is a developing 
archipelagic country  with vast territory, which imposes additional constraints on its ability to 
conduct expedient customs clearance operations, in particular for products that pose halal and 
safety risks, such as animal products. The application and validity periods and the fixed license 
terms seek compliance with Indonesia's relevant laws by facilitating the supervision by Indonesia's 
customs and quarantine officials over the importers' compliance with these laws at the time of 
importation. In other words, the facilitation o f supervision  is the immediate objective of these 
measures through which Indonesia seeks to achieve its ultimate objective of ensuring that animal 
products are safe, healthy, wholesome and halal; and that consumers are not deceived about 
these issues. For example, absent the limited validity period, one would not be able to estimate 
how many products of which particular type will be imported through which particular ports. 
Conversely, if Indonesia were to impose the validity period requirement without apply ing the fixed 
license terms requirement, it would have received information on the period of importation. 
However, it would not know, at least approximately, what quantity of which particular products 
would be imported and through which particular ports. I n addition, importers submit arrival plans 
for imports on a monthly basis, which provide further information as to the quantity and the timing 
of the imports that will arrive at the specified ports. Thus, without these requirements, Indonesia 
would not be able to allocate a sufficient number of quarantine and customs officials to a particular 
port of entry to supervise an importer's compliance with halal and food safety requirements, as 
well as consumer protection. These measures, therefore, contribute to I ndonesia's objective.149 
115. In light of the foregoing, Indonesia considers that it has satisfied its burden of proof under 
Article XX(d) of the GATT 1994.150  
                                                
146 See, inter alia, Indonesia's first written su bmission, paras. 295 -300; Indonesia's opening statement 
at the first meeting, paras. 97 -109; Indonesia's responses to Panel Questions No. 24, 27, 113 -119, 121 -122; 
Indonesia's comments on Brazil's responses to Panel Questions No. 120 -123.         
147 See, in ter alia, Indonesia's first written submission, paras. 297 -298 (citing Appellate Body Report, US 
– Carbon Steel , para. 157); Indonesia's response to Panel Question No. 113.  
148 Indonesia's response to Panel Question No. 113.  
149 See, inter alia, Indonesia's re sponses to Panel Questions No. 113, 115, 119.  
150 Indonesia's response to Panel Question No. 113.  WT/DS484/R/Add.1  
 
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  116. Indonesia notes that Brazil did not propose any concrete alternative measures that are less -
trade restrictive and make an equivalent contribution to Indonesia's objective. Brazil's so -called 
"alternatives" are vague and imprecise, and do not address the issue of supervision by Indonesia's 
customs and quarantine officials over the importer's complia nce with Indonesia's relevant laws at 
the time of importation. Moreover, Indonesia already applies these measures. Brazil, therefore, 
failed to rebut Indonesia's defence under Article XX(d).151 
117.  Finally, Indonesia demonstrated that the limited applicati on and validity periods and the 
fixed license terms are justified under the chapeau  of Article XX. Indonesia applies these measures 
in a non -discriminatory manner to chicken meat and chicken products imported from all Members. 
In addition, there is no disc rimination between imported and domestic like products, as Indonesian 
producers of the products at issue must comply with Indonesia's safety and halal requirements. 
Furthermore, even if these measures were found to accord discriminatory treatment to import s, 
Indonesia submits that this treatment is not unjustifiable or arbitrary. On the contrary, it is 
justifiable when considered in the light of the importance of Indonesia's objective to secure 
compliance with Indonesia's laws that address halal and public health, as well as the conditions 
that prevail in Indonesia. Finally, the fact that the measures at issue are not applied in a manner 
that constitutes a means of arbitrary or unjustifiable discrimination confirms that they are not a 
disguised restriction, as all elements of the test under the chapeau  "may … be read side -by-side 
[and] … impart meaning to one another". In any event, these measures are published, and are, 
therefore, not "disguised".152 
118. In light of the foregoing, even if the Panel were to fi nd that the limited application and 
validity periods and the fixed license terms fall under Article XI:1 of the GATT 1994 (which they do 
not), these measures are, nevertheless, justified under both sub -paragraph (d) and the chapeau  of 
Article XX of the GAT T 1994.153 
F. ALLEGED DELAYS IN APPROVING BRAZIL 'S VETERINARY CERTIFICATE  
119. Brazil claims that "Indonesia has consistently failed to undertake and complete the 
procedures to check and ensure the fulfillment of sanitary requirements necessary to authorize  
Brazilian exports of chicken meat and chicken products" thereby violating the requirements of 
Article 8 and Annex C(1)(a) of the Agreement on the Application of Sanitary and Phytosanitary 
Measures (SPS Agreement).154 Brazil states it "has submitted in 2009 to Indonesia's authorities a 
proposal of an International [Veterinary] Certificate, which followed every single guideline from the 
World Organization for Animal Health".155  
120. Indonesia submits that Brazil has not obtained the "International Veterinary Ce rtificate" 
because it has not submitted all the appropriate documentation.  A letter from the Ministry of 
Agriculture, Directorate -General of  Livestock and Animal Health Services dated 22 January 2013 
indicates that the Director -General acknowledged the q uestionnaire of MFG -MARFRIG 
FRIGORIFICOS BRASIL S/A and COOPERATIVE CENTRAL AURORA ALIMENTOS, two Brazilian 
companies wishing to export beef, chicken meat and products to Indonesia.156 The Indonesian 
government then informed Brazil that the application docum ents presented by the two Brazilian 
companies were at the stage of desk review. However, the submitted questionnaire only covered 
the food safety assurance system, and did not include information on halal practices in the 
exporting poultry slaughter house.157 Therefore any delays experienced by Brazil are because they 
have not submitted the proper documentation, and should not be attributed to the Government of 
Indonesia.  
                                                
151 Indonesia's responses to Panel Questions No. 121, 122; Indonesia's comments on Brazil's responses 
to Panel Questions No. 121, 123.  
152 Indonesia's opening state ment at the first meeting, paras. 107 -109 (citing, inter alia, Appellate Body 
Report, US – Gasoline , p. 25).  
153 Indonesia's first written submission, para. 302.  
154 See Brazil's opening statement at the first meeting, para. 96. See also ibid., paras. 96 -105; and 
Brazil's first written submission, paras. 294 -315. Indonesia provided its interpretation of Article 8 and Annex 
C(1)(a) in, inter alia , its response to Panel Question No. 65.  
155 Brazil's opening statement at the first meeting, para. 97. See also Brazil' s first written submission, 
para. 35.  
156 Letter from the Ministry of Agriculture to the Embassy of Brazil in Jakarta, 22 January 2013. Exhibit 
IDN-40. 
157 Ibid. WT/DS484/R/Add.1  
 
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  121. Indonesia does not dispute that negotiation of a Veterinary Certificate, which cer tifies that 
the country of origin is free of diseases or that exporters comply with safety requirements, may 
fall within the scope of Article 8 and Annex C of the SPS Agreement.158 In Indonesia's view, the 
real question is whether Brazil has established that  there was indeed a "delay" in the approval of 
the veterinary certificate for chicken meat and chicken products within the meaning of Article 8 
and Annex C, and the delay, if were found to exist ( quod non ), is "undue".  Indonesia understands 
the phrase "un due delay" as indicating that a delay in the approval procedure (i.e. "time lost by 
inaction" or "something [that] is late or postponed")159 can only result from a properly submitted 
application, which was not submitted in the case at hand. Furthermore, even  if one were to 
interpret the term "delay" broadly as encompassing delays that were caused by applicants 
themselves (for example, applicants that failed to attach all required documents to their 
application), Indonesia submits that delays "attributable to action, or inaction, of an applicant" 
cannot properly be considered as "undue" (i.e. " [u]nwarranted or inappropriate" ), as was 
confirmed by the panel in EC – Approval and Marketing of Biotech Products .160 Such delays are, 
therefore, not inconsistent with Article 8 and Annex C of the SPS Agreement.  
122. Indonesia submits that Brazil's claim is based on its erroneous interpretation of Article 8 and 
Annex C(1)(a) of the SPS Agreement, its total misunderstanding of Indonesia's import licensing 
regime, and the mis leading presentation of facts underlying this claim. First, Brazil's argument 
that, under the SPS Agreement, sanitary procedures must be isolated from other procedures is 
legally incorrect. Indonesia submits that the determination of whether the delay in q uestion is 
"undue" is not dependent upon the nature of the document that the applicant failed to submit as 
long as the document/requirement relates to the approval procedure. The Appellate Body and 
previous panels have confirmed that  a wide range of measur es, including those that are not 
themselves sanitary procedures, may fall within the scope of Article 8 and Annex C .161  
123. The Appellate Body's statement that measures other than the sanitary procedures may 
infringe the requirements of Article 8 and Annex  C must necessarily mean that the failure of an 
applicant to comply with additional legitimate requirements (e.g. to pay fees, or, in casu , to fill out 
the halal questionnaire) is relevant for the assessment of whether the alleged "undue delay" 
exists.  For example, in the event of an applicant's failure to comply with these requirements , the 
delay cannot be attributed to governmental authorities conducting the approval procedure.  Brazil 
has itself acknowledged that the term "procedures" in Article 8 and An nex C "is defined in the SPS 
Agreement in a manner as broad as possible ".162   
124. In addition, Brazil's argument has far -reaching practical implications. There may be 
legitimate reasons why a Member may wish to conduct a holistic assessment of the complian ce by 
a particular establishment with sanitary requirements as well as other requirements. In its 
response to Panel Question No. 29, Indonesia explained that it would be inefficient to start the 
Document Desk Review process of the food safety assurance sys tem 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 halal 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. This is why Indonesia treats the assessment of the food safety and halal requirements on 
a holistic basis.  
125. Furthermore, in its responses to Panel Questions No. 30, 32 and 37, Indon esia provided a 
detailed description of a four -step process for obtaining the approval of country of origin and 
business units. This process starts with the Desk Document Review, during which Indonesian 
authorities assess certain documents provided by Braz il and its business units, including: the 
questionnaire covering food safety and assurance system,163 the halal questionnaire,164 and the 
                                                
158 Indonesia's response to Panel Question No. 65.   
159 See Panel Report, EC – Approval and Marketing  of Biotech Products , para. 7.1495. See definition of 
"delay" in Oxford Dictionaries, Exhibit IDN -106. 
160 See Panel Report, EC – Approval and Marketing of Biotech Products , para. 7.1497.  
161 Appellate Body Report, Australia – Apples , para. 438. The broad scop e of Article 8 and Annex C was 
also confirmed in Panel Report, US – Poultry (China) , para. 7.363; and Panel Report, US – Animals , paras. 
7.67-7.68. 
162 Brazil's first written submission, para. 299, emphasis added.  
163 See Questionnaire for Country of Origin on  Food Safety, Exhibit IDN -101. 
164 See Questionnaire for Business Unit on Food Safety and Halal Assurance System, Exhibit IDN -102. WT/DS484/R/Add.1  
 
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  halal certificate approved by MUI or an Islamic body in Brazil recognized by the MUI.165 Based on 
the results of the Desk Do cument Review, a field inspection will be undertaken to the proposed 
establishment (i.e. On -site Field Inspection in Country of Origin). At the following stage of Risk 
Analysis in Jakarta, Indonesia then analyses the reports to determine whether to approve  or reject 
the application. The four -step process culminates with the conclusion of a bilateral agreement 
between the country of origin and Indonesia (Protocol)166 which specifies the body in the country 
of origin responsible for the issuance of Veterinary C ertificates at the regional or local level, 
certifying that meat exports will meet all veterinary and specific requirements determined by 
Indonesia. A model certificate is attached to the completed and signed Protocol between the 
country of origin and Indo nesia.167  
126. Indonesia trusts that it has become clear that Brazil's proposal of an International Health 
Certificate was very premature and failed to meet the requirements under Indonesia's import 
licensing regime. A Veterinary Certificate can only be agr eed upon at the very end of the four -step 
country of origin and business unit approval  process, during the negotiations on the Protocol. It is 
in the Protocol that the approval of the permanent official veterinaries by a body in the country of 
origin can b e established.  However, Brazil has not reached this final stage of the approval 
process. In fact, Brazil's application is incomplete, and did not even trigger the Desk Document 
Review (i.e. the first step). The only document that Brazil has so far provide d is the questionnaire 
covering food safety and assurance system. There are other documents that are still to be 
submitted, including those establishing compliance with Indonesia's halal requirements.  In its 
response to Question 4, Indonesia made clear th at "[t]he delay of the approval for Brazil and its 
business units of slaughterhouse was due to failure in the application to comply with the existing 
procedures and technical regulations , stipulated by the Indonesian law", and "[t]he process of 
desk review  was discontinued because the Brazilian applications [were] not equipped with halal 
questionnaire ".168  
127. In the light of the above, Indonesia submits that Brazil's claim must be rejected in its 
entirety, as Brazil did not prove that there is any "delay" in the country of origin and business unit 
approval  process, attributable to Indonesia within the meaning of Article 8 and Annex C(1)(a) of 
the SPS Agreement . Alternatively, should the Panel find otherwise, Brazil failed to prove that the 
delay is "undue".169  
G. TRANSPORTATION REQUIREMENTS  
128. Brazil alleges that Indonesia imposes restrictions on the transportation of imported products 
by requiring that the transportation of carcass, meat and/or processed products shall be 
"conducted directly from the coun try of origin to the port of discharge within the territory of [the 
Republic of] Indonesia".170  It claims that the measure "clearly operates as a 'quantitative import 
restriction' within the meaning of Article 4.2 [of the Agreement on Agriculture] and Artic le XI:1 of 
the GATT 1994, and alleges that the measure restricts the volume of imports.171  
129. Indonesia submits that Brazil incorrectly understands the legal requirements related to the 
transportation of carcass, meat and/or processed products to Indonesi a.   
                                                
165 See Form 2 to Questionnaire for Business Unit on Food Safety and Halal Assurance System, Exhibit 
IDN-102. See also Indonesia' s response to Panel Question No. 30(a).  
166 See Sample Protocol between the Directorate General of Livestock and Animal Health Services of the 
Ministry of Agriculture of the Republic of Indonesia and the Directorate General of XXX Concerning 
Establishment, A pproval, and Inspection for Export of Meat, Meat Products and Milk Products from XXX to 
Indonesia, Exhibit IDN -115. 
167 See Sample Health Certificate for Export of Beef from XXX to the Republic of Indonesia, Exhibit IDN -
114. 
168 Indonesia's responses to Brazil 's information request under Article 5.8 of the SPS Agreement, Exhibit 
BRA-20, emphasis added.  
169 These issues are discussed in Indonesia's rebuttal submission, paras. 159 -174; Indonesia's response 
to Panel Question No. 65.  
170 Brazil's first written submissi on, para. 239, citing Article 20(a) of MoA Regulation 58/2015, Exhibit 
IDN-24. 
171 Brazil's first written submission, paras. 214 -217 and paras. 239 -243. WT/DS484/R/Add.1  
 
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  130. Indonesia acknowledges that Article 20(a) of MoA 58/2015 refers to a direct transportation 
requirement from the country of origin to Indonesia.172 However, this provision must be read in 
the context of the other provisions in the same Article, whic h provide for the application of animal 
quarantine measures.  Article 20(b) requires that animal quarantine measures must be carried out 
at the country of origin, before the products are loaded on the conveyance. Article 20(c) of the 
same regulation provid es that the " transit  during importation shall be carried out pursuant to the 
animal quarantine laws and regulations". Thus, this provision acknowledges that transit during 
importation can take place as long as animal quarantine laws are respected. Article 20(e) requires 
that upon arrival at the port of discharge, further animal quarantine measures shall be performed 
or applied to the carcass, meat and/or processed products.  
131. Animal quarantine requirements are regulated under Law 16/1992 on Animal, Fish and Plant 
Quarantine.173 Recital (c) of the Considerations notes that "most of the pests and diseases of 
animals, fish and plants that are particularly injurious to [Indonesia's] biotic natural resources are 
not yet found in the Indonesian archipelago wherea s a number of those that are already present 
are confined to certain islands".174 Thus, Indonesia has concerns about pests and other organisms 
invading its territory, as do other countries that do not share contiguous borders. Article 5 of Law 
16/1992 and Go vernment Regulation 82/2000 on Animal Quarantine provides for animal 
quarantine requirements. Article 2 provides that all carrier media (or animal or non -animal 
products) must be equipped with health certificates issued by the authorized officials in the 
country of origin and the transit country.  The definitions section provides that "transit is a 
temporary stop of [the means of transportation] in a harbour during a journey that brings in 
animals, material derived from animals, animal products and other th ings before arriving in the 
designated harbour." Part Three of Government Regulation 82/2000 is entitled "Transit" and 
provides, inter alia , in Article 34 that "in order to prevent quarantine animal pests entering 
[Indonesia] from a foreign country, transi t shall only be approved at a designated place" and in 
Article 35 that the designated places for transit must have appropriate facilities.  
132. Indonesia explained that imported products do not have to make the journey on a non-stop 
basis but on a direct  basis.175 It further explained that a breach of the "direct" transportation 
requirement would only occur if the vessel transporting the goods in question broke journey en 
route to Indonesia and the goods were imported and then re -exported from the transit co untry.176  
133. In the light of the foregoing, it is factually incorrect for Brazil to argue that transit is not 
permitted during the transportation of chicken meat and chicken products from Brazil to Indonesia. 
As can be noted from the various laws and regu lations discussed above, transit is permitted as 
long as it complies with Indonesia's animal quarantine regulations. Indeed, Format -1 for the 
Import Recommendation attached to MoA Regulation No. 58/2015 contains the following fields to 
be completed for imp ortation: (a) tariff position, type/products category, country of origin and port 
of discharge; (b) name of business unit and establishment number; (c) transit , (d) intended use 
and (e) term of validity.177    
134. The European Union has noted that the exist ence of a prohibition to pass through third 
parties is factually disputed between Brazil and Indonesia.178 Indonesia has submitted exhibits 
demonstrating that transit during importation has, in fact, occurred. Indonesia submitted an 
Import Declaration indica ting that frozen, boneless beef was transited through Singapore before 
arriving at Tanjung Priok in Indonesia to demonstrate that transit was allowed by Indonesian 
                                                
172 In this context, the term "direct" may be used in the same manner as it is used in the airline 
industry . A direct flight is one that may make stops and pick up additional passengers but the original 
passengers do not leave the plane. A "non -stop" flight does not make any stops at all. See: 
http://www.programmerinterview.com/index.php/assortment/whats -the-difference -between -a-nonstop -and-
direct -flight/  
173 Law No. 16/1992 on Animal, Fish and Plants Quarantine, Exhibit IDN –72.    
174 Recital (c) of Law No. 16/1992 on Animal, Fish and Plant Quarantine, Exhibit IDN –72.    
175 Indonesia's first written submission, para. 310.  
176 Indonesia's response to Panel question No. 39 after the first meeting.  
177 MoA Regulation No. 58/2015, "Import Recommen dation by Directorate General of Livestock and 
Animal Health", p. 27, Exhibit IDN -24.    
178 European Union's third party submission, para. 52.  WT/DS484/R/Add.1  
 
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  authorities.179 Indonesia also submitted a bill of lading and Import Declaration for another 
shipment that stopped in transit in a third country, namely Singapore, in September 2015.180   
135. In response to Indonesia's clarification of the so -called direct transportation requirement, 
Brazil merely stated "...if this is indeed the case, it is far fro m clear on the basis of Indonesia's 
trade regulations. It is actually a challenge to understand the notion of legal certainty argued by 
the Indonesian Government".181 In Indonesia's view, this does not constitute a proper rebuttal.  
136. Brazil admits that i t is unclear how transportation requirements operate in practice.182  In US 
– Carbon Steel , the Appellate Body stated that "a party asserting that another party's municipal 
law, as such, is inconsistent with relevant treaty obligations  bears the burden of in troducing 
evidence  as to the scope and  meaning of such law to substantiate that assertion".183 Brazil has not 
met this burden as it has not introduced any such evidence.  Indonesia has explained the legal and 
administrative requirements for transportation of  imports to Indonesia. The Appellate Body has 
endorsed the principle that a Member is normally well -placed to explain the meaning of its own 
law.184 
137. Brazil argues that Indonesia's description of its transportation requirements " seems to 
imply " that tran shipment is not included in Indonesia's description of its transit requirements, and 
thus, in violation of Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on 
Agriculture."185 Indonesia submits that Brazil's assertion is incorrect. Transhipment  is the "transfer 
of a shipment from one carrier, or more commonly, from one vessel to another.186 Article 19(c) of 
Regulation 34/2016 explicitly allows for importation by way of transit or, in other words, a change 
in the vessel used to transport the goods.   
138. In its rebuttal submission, Brazil in essence acknowledges that the requirement of direct 
transportation may in fact not exist, and that "transit (transhipment) is allowed in practice". It 
made a new claim, however, that restrictions on the transpor tation are caused by "the legal 
uncertainties generated by the murky language of Regulation Article 19(a) of MoA Regulation 
34/2016".187 Indonesia submits that this claim falls outside the Panel's terms of reference. In 
section II(ii) (third and tenth bullet s) of its panel request, Brazil challenged "[r]estrictions on the 
transportation of imported products by … requiring direct transportation from the country of origin 
to the entry points in Indonesia", as inconsistent, inter alia , with Article XI:1 of the G ATT 1994. 
The preposition "by" indicates that the requirement of direct transportation was the only relevant 
cause of the alleged restrictions on the transportation of imported products.188 
139. In the light of the foregoing, Indonesia submits that Brazil ha s not made a  prima facie  case 
to support its claim that the so -called direct transportation requirement violates Article XI:1 of the  
GATT 199 4 and Article 4.2 of the Agreement on Agriculture.189    
                                                
179 Import Declaration from Australia, Exhibit IDN -79. 
180 See Indonesia's responses to Panel Questions No. 39 and 40;  Bill of Lading and Import Declaration in 
Exhibit IDN -88. 
181 Brazil's opening statement at the first substantive meeting, para. 107.  
182 Brazil's rebuttal submission, para. 216.  
183 Appellate Body Report, US-Carbon Steel , para. 157.  
184 Appellate Body Report, Thailand – Cigarettes (Philippines) , footnote 253 endorsing para. 7.684 of the 
Panel Report, and referring to Panel Report, China – Intellectual Property Rights , para. 7.28. See also Panel 
Report, EC – Trademarks and Geographical Indications , para. 7.55.  
185 Brazil's rebuttal submission, para. 219 (emphasis added).  
186 See definition of transhipment in http://www.businessdictionary.com/definition/transshipment.html , 
last accessed on 03 .10.2016 (emphasis added).  
187 Brazil's rebuttal submission, para. 222.  
188 Indonesia's response to Panel Question No. 139.  
189 See Indonesia's first written submission, paras. 303 -311; Indonesia's response to Panel Question No. 
139. WT/DS484/R/Add.1  
 
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  V. CONCLUSION  
140. In the light of the foregoing, Indonesi a requests the Panel to find that all of Brazil's claims 
are without merit and should be rejected  
 
 
_______________  
 
 WT/DS484/R/Add.1  
 
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  ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Executive summary of the arguments of Argentina  C-2 
Annex  C-2 Executive summary of the arguments of Australia  C-8 
Annex  C-3 Executive summary of the arguments of Canada  C-11 
Annex  C-4 Executive summary of the arguments of the European Union  C-15 
Annex  C-5 Executive summary of the arguments of Japan  C-17 
Annex  C-6 Executive  summary of the arguments of New Zealand  C-20 
Annex  C-7 Executive summary of the arguments of Norway  C-25 
Annex  C-8 Executive summary of the arguments of Paraguay  C-27 
Annex  C-9 Executive summary of the arguments of Qatar  C-28 
Annex  C-10 Executive summ ary of the arguments of the United States  C-30 
 
 WT/DS484/R/Add.1  
 
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  ANNEX  C-1 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF ARGENTI NA 
1. Argentina takes part in this case due to its systemic interest in the correct and consistent 
interpretation and application of the covered agreem ents. This executive summary includes 
comments made by Argentina in its written submission, during the third party session and in its 
reply to the written questions by the Panel.  
Brazil's claim of undue delay under article 8 and annex C(1)(a) of the SPS Ag reement  
2. In Argentina's view, Article 8 of the SPS Agreement establishes an obligation to comply with 
the provisions contained in Annex C with regard to the operation of "control, inspection and 
approval procedures."  
3. Annex C(1) provides a general obl igation to ensure that any procedure aimed t o "check and 
ensure the fulfillment  of sanitary and phytosanitary measures" complies with the specific 
obligations in paragraphs (a) to (i). The use of the word any in this provision does not seem to 
limit the sc ope Article 8 and Annex C.  
4. The use of the term inter alia  and including  does not restrict the possibility of other 
procedures falling within their scope. All in all, article 8 and Annex C have a wide scope of 
application.  
5. In this context, Argentina c onsiders that Brazil is correct in affirming that "the negotiation of 
the International Veterinary Certificate is a procedure designed to check and ensure the fulfillment 
of sanitary requirements" under Article 8 and Annex C(1) of the SPS Agreement, since the 
successful completion of this procedure is a prerequisite to allow the importation of Brazilian 
chicken meat and chicken products, and therefore it is subject to the obligations set forth in 
Article  8 and Annex C(1)(a).  
6. The negotiation of the Intern ational Veterinary Certificate is the only way available to obtain 
access to the Indonesian market and successful completion of this procedure is a prerequisite to 
allow the importation of chicken meat and chicken products.  
7. Argentina notes that there is  uncontested evidence on the record that shows that both Brazil 
and Indonesia started and maintained periodical bilateral negotiations regarding the approval of 
the "Health Certificate" by the competent authorities of both countries for the importation of 
chicken meat and chicken products. Unlike the halal certificate, the "Veterinary" or "Health" 
Certificate serves mainly to check the compliance with several SPS requirements. In this regard, 
Argentina understands that the negotiation of the Veterinary Cert ificate is an approval procedure 
applied to comply with several of the objectives listed in Annex A(1) of the SPS  Agreement and 
therefore falls within the definition of an SPS measure.  
8. Therefore, in making a determination under this procedure, Indonesia  must comply with the 
pertinent obligations on "approval procedures" under Annex C(1) of the SPS Agreement.  
9. Second, Argentina believes that "the analysis of a claim under Article 8 and Annex C(1)(a) 
requires two steps. When intending to identify an undu e delay under Article 8 and Annex C(1)(a), 
the complainant must establish first that there has been a "delay". Second, the complainant must 
establish that the delay was "undue."  
10. The first step for establishing that there has been a delay is to determin e its existence. In 
this regard, "a determination of whether a delay exists should be made in light of the nature and 
complexity of the procedure to be undertaken and completed."  
11. A period of time lost because of the lack of response from a Member's com petent authority 
in the negotiation of an International Veterinary Certificate, especially when there are available WT/DS484/R/Add.1  
 
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  guidelines from the relevant international organization, can be considered as a "delay" incurred by 
that Member in the procedure.  
12. Argen tina recognizes that the seven years delay alleged by Brazil could not be, in and of 
itself, conclusive as to whether Indonesia incurred in a delay. However, in light of the aforesaid 
and considering Brazil's evidence submitted for this claim, Argentina co nsiders that in the present 
case there is a presumption of inactivity by Indonesia with regard to the negotiation of an  
International Veterinary Certificate, which acts as a strong indication that in such circumstances 
Indonesia may have incurred in a "del ay". 
13. Regarding the second step, i.e. establishing that the existing delay is "undue", the Appellate 
Body defined "undue" as something "that ought not to be or to be done, inappropriate, unsuitable, 
improper, unrightful, unjustifiable" or "going beyond what is warranted or natural; excessive, 
disproportionate." It also explained that Annex C(1)(a) requires that relevant procedures are 
undertaken and completed with appropriate dispatch.  
14. Argentina considers that the term "undue delay" suggests that bot h the reason  for the 
"delay" and its duration  are relevant considerations for determining whether the delay is "undue" 
and therefore they must be analyzed taking special account on the proportionality between them. 
The proportionality between the reason an d the duration of the delay has a central role in defining 
whether the delay is "undue". Such proportionality must be addressed always on a case -by-case 
basis, and in the context of the circums tances of each individual case.  
15. In the present case, accord ing to the evidence submitted by Brazil, it can be inferred that 
Indonesia has not provided an adequate explanation that could justify its delay in the negotiation 
of the International Veterinary Certificate. Therefore, absent a proper justification by Ind onesia, it 
can be considered that such delay was  "undue".  
16. Argentina would like to highlight as well that Brazil is not challenging certain provisions of 
the Indonesian Regulations as such . According to Argentina's understanding, Brazil is challenging 
the undue delay of the Indonesian authorities to undertake and complete the sanitary procedures 
required to allow Brazilian imports of chicken meat and chicken products into Indonesia. Therefore, 
the measure at issue under this claim is Indonesia's undue de lay and not the legal provision. As 
Indonesia explains in its submission, "any act or omission  attributable to a WTO Member can be a 
measure of that Member for purposes of dispute settlement proceedings." Hence, in the present 
dispute Brazil is challenging  Indonesia's omission to undertake and complete the approval 
procedures, and not a particular provision of certain Regulation.  
17. Even assuming, arguendo , that Brazil could be challenging certain provisions of the 
Indonesian legislation as such  for the un due delay claim, Argentina notes that the defense 
presented by Indonesia is not clear or could have been exposed with a greater level of precision. 
At the beginning of its argument, Indonesia seems to be suggesting that Brazil's claim is incorrect 
because it addressed provisions of a wrong chapter of MoA Regulation 58/2015 ( i.e. "Supervision" 
instead of "Import Procedures"). Argentina does not agree. While the title of the chapter of a 
Regulation does not always confine the scope of its provisions, Argentin a considers that 
Article  33(1) provides that the performance of the "supervision" and/or "control" is precisely on 
the veterinary public  health requirements. In turn, Article 36(4) details that these "requirements 
[…] are the veterinary certificate  and hal al certificate for the required product." Hence, in light of 
the findings of the Panel in EC – Approval and Marketing of Biotech Products , the application of 
these provisions ensure "the fulfillment of one or more SPS substantive requirements."  
18. Indones ia seems to suggest that Brazil's claim is incorrect because it addressed the wrong 
legislation ( i.e. "MoA Regulation 58/2015" instead of "Government Regulation 95/2012"). 
However, Argentina notes that, according to the evidence in the record, in 2014 – when Regulation 
95/2012 was already in force - Indonesia informed Brazil that "the importation of poultry meat into 
Indonesia's territory is allowed as long as they meet the requirements stipulated in the Minister of 
Agriculture Regulation No. 84/2013" and w hen asked about the approval procedures for the Health 
Certificate for Brazilian poultry, Indonesia informed that "based on Minister of Agriculture 
Regulation No. 84/2013, the approval step for country and business unit will only be granted after 
desk revi ew and on site review are completed." Argentina also notes that MoA Regulation 84/2013, WT/DS484/R/Add.1  
 
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  which replaced MoA Regulation 50/2011, has been replaced by MoA Regulation 139/2014 which, in 
turn, has been replaced by MoA Regulation 58/2015, which is the regulation  referred to by Brazil.  
19. All these regulations are similar in their design, structure and even content. Therefore, 
despite the subsequent modifications of the legislation, the Sanitary Certificate requirement seems 
to be a permanent requirement which ex isted before Government Regulation 95/2012 went into 
force.  
20. Argentina considers that the evidence in the record, including Indonesia's reply to Brazil 
questions pursuant to Article 5.8 of the SPS Agreement, does not establish that the importation 
requirements are addressed in Government Regulation 95/2012 and not in MoA Regulation 
58/2015.  
21. Furthermore, Indonesia provides an explanation of the stages of the approval procedure to 
import chicken meat and chicken products and affirms that any delays exp erienced by Brazil [in 
the approval procedure] are of its own doing. Argentina is puzzled with Indonesia's argument. 
Argentina notes that Indonesia does not contend the existence of a delay in the procedure for 
approval to import chicken meat and chicken p roducts. Rather, Indonesia tries to justify the 
existence of any delay in its approval procedure by attributing it to Brazil's failure to submit certain 
documentation regarding the halal requirements . 
22. Argentina agrees that delays attributable to action  or inaction of an applicant cannot be held 
against the Member carrying out the procedure and that delays which "are justified in their 
entirety" by the Members' need "to determine with adequate confidence whether their relevant 
SPS requirements  are fulfil led" should not be considered undue. However, this is not the case. 
Argentina considers that a "procedure applied to check and ensure the fulfillment of one or more 
substantive SPS requirements" should not be delayed by non SPS  requirements. As Indonesia 
recognizes, "[t]he halal requirements are enforced for religious reasons, rather than to protect 
human health."  
23. In fact, the Panel in EC – Approval and Marketing of Biotech Products  made exactly the 
same finding. According to the Panel, delays caused by  measures which are not based on scientific 
evidence may be considered "undue". The Panel went further on by explicitly stating that "[t]his 
could be the case, for example, if a delay is caused by a request for additional information which 
has nothing to d o with the issue of whether the relevant product meets the SPS requirements 
concerned". This seems to be exactly what Indonesia did, according to its own statements. The 
delay in the approval of the veterinary certificate was caused by an alleged failure t o submit 
documentation regarding halal requirements , i.e., information which "has nothing to do" with the 
issue of whether Brazilian chicken meat and products met the SPS requirements concerned.  
24. Indonesia asserts that the halal certificate requirement falls outside the scope of the 
SPS Agreement because "the information required for complying with halal requirements are 
completely different from sanitary or phytosanitary information provided by the business units to 
obtain the International Veterinary C ertificate."  
25. Argentina believes that this argument does not help Indonesia's position. Argentina agrees 
that the halal requirement is not a sanitary or phytosanitary requirement. As a matter of fact, the 
parties in this dispute are also in agreement o n this point. Argentina considers that this only 
reinforces the fact that, as mentioned before, Indonesia incurred in an undue delay by requiring a 
non SPS requirement to justify a delay in an SPS approval procedure.  
Brazil's claim under Article 4.2 of the  Agreement on Agriculture  
26. According to Indonesia, when presenting a claim of inconsistency of a given measure with 
Article 4.2, together with bearing the burden of showing that the measure falls within the scope of 
this provision, the complainant must show a "second element", i.e. that the measure at issue is 
not "maintained under [inter alia] … other general, non -agriculture -specific provisions of 
GATT  1994 [such as Article XX]". Without providing at least some evidence or argumentation 
addressing both  of those elements, Indonesia believes that the complainant cannot make its prima 
facie case of inconsistency with Article 4.2.  
 WT/DS484/R/Add.1  
 
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  27. As many of the third parties in this dispute, Argentina disagrees with Indonesia's 
interpretation of the burden of proof un der Article 4.2. Indonesia's arguments run counter not only 
with long standing WTO jurisprudence but also, if adopted, would result in an unreasonable burden 
for the complaining party.  
 
28. First, as it was made clear by the Panel in India - Quantitative R estrictions , the phrase 
"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" in footnote 1 constit utes an exception or an affirmative defense. 
Furthermore, the Panel in Chile – Price Band System  explained that footnote 1 must be read "…as 
excluding from the scope of Article 4.2 those measures which Members are allowed to maintain in 
accordance with the  provisions in GATT 1994 laying down exceptions  to the general obligations of 
GATT 1994…". Indonesia recognizes such phrase as an exception. In its First Written Submission 
Indonesia states that "[a] number of panels have interpreted the latter phrase as e xcluding from 
the scope of Article 4.2 measures maintained under various exceptions  set out in the 
GATT  1994…".  
 
29. As it is clear since US – Wool Shirts and Blouses , it is the burden of the defending party to 
invoke an exception or an affirmative defense . In fact, quoting US – Wool Shirts and Blouses , 
Indonesia itself recognizes that in the case of a provision which "…is in the nature of affirmative 
defense, […] 'the burden of establishing such a defense should rest on the party asserting it', 
namely the respondent".  
 
30. Therefore according to well established WTO jurisprudence and Indonesia's own statements, 
it is clear that it is for the responding party to invoke the second phrase in footnote 1 as an 
affirmative defense or exception and submit evidence  that a measure which falls under that 
footnote is not maintained under a general, non -agriculture -specific provision of the GATT.  
 
31. Furthermore, according to Indonesia, a party claiming a violation to Article 4.2 of the 
Agreement on Agriculture should show first that the measure falls within the category of 
measures specified in footnote 1. Then, for example, it should demonstrate that it is not 
maintained under inter-alia, article XII, article XIX, any of the sub -paragraphs a) to j) in article 
XX or th e chapeau and even article XXI of the GATT. And this is only for the GATT. Not only the 
argumentative exercise would be almost endless for the complainant, but also such party would 
be required to submit arguments without knowing in advance which of the ex ceptions or 
affirmative defenses will be invoked by the responding party, if any.  
 
32. As the United States and the European Union stated in their written submissions, adopting 
Indonesia's interpretation would render a successful Article 4.2 claim either difficult or nearly 
impossible. In Argentina's opinion, Indonesia's interpretation is unreasonable and could, in effect, 
deter complaining parties from pursuing claims under Article 4.2 due to the excessive burden they 
would face, depriving such provision of its role as one of the fundamental obligations in the 
Agreement on Agriculture.  
The restrictions on intended use under Articles III:4  and XI:1 of the GATT 1994  
 
33. MoA Regulation 58/2015 is a mandatory legislation within the scope of Article XI:1. Wi thin 
the import procedures set forth in Chapter III of the Regulation, Article 29(j) provides that all the 
recommendations issued for accepted applications shall at least contain the intended use, among 
other requirements. Hence, detailing the intended use  is a condition for the issuance of the 
recommendation of importation.  
 
34. Furthermore, when defining the scope of the term "intended uses" for carcass and meat and 
processed products, Article 31 expressly limits these products to be used in hotels, resta urants, 
caterings, industries, particular purposes, and modern markets for processed products only. 
Therefore, there is a presumption that these restrictions may impose a condition for the 
importation of chicken meat and chicken products that is limiting, i.e. that has a limiting effect, in 
a manner inconsistent with the obligations under Article XI:1 of the GATT 1994.  
 WT/DS484/R/Add.1  
 
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  35. Also, in Argentina's view, the three elements as described in paragraph 263 of Brazil's First 
Written Submission could be the basis for  a violation of GATT Article III:4. In the first place, the 
"intended use" that must be declared in the recommendation of importation following an online 
application is a condition that, according to the plain text of Regulation 58/2015 and its application  
by Indonesia, is not based in any other factor different from the origin of the product, i.e., whether 
it is imported or domestic.  
 
36. Secondly, as above mentioned, the MoA Regulation is a mandatory legislation. Argentina 
considers that certain provision s of this Regulation have "an effect on" the use, internal sale and 
offering for sale of imported products. While Argentina is conscious of the fact that a broad 
interpretation of the term "to affect" does not necessary imply that any measure can fall with in the 
scope of Article  III:4 of the GATT 1994, it also believes that Brazil has identified the link of the 
MoA Regulation with the imported products so that it could be established that it affects the 
conditions of competition of the imported products on the Indonesian market in such a way that 
the domestic products are protected.  
 
37. Thirdly, regarding the less favourable treatment analysis, Argentina notes that this 
restriction does not seem to apply to domestic products. In this sense, Argentina consid ers that if 
certain requirements are imposed only on imported products, such as the "intended use" 
requirement, the mere existence of this requirement, applied only to imported products, may 
provide an indication that such products are treated less favoura bly. 
 
38. Argentina agrees with the EU in that Articles XI:1 and III:4 of the GATT 1994 contain 
different obligations and have each their own legal standard. Article III is relevant for goods after 
that have cleared customs already, whereas Article XI:1 is  relevant to assess measures that affect 
the actual importation of products. Without making reference to Article XI, Ad Note to Article III 
sheds some further light with respect to the application of Article III. According to this provision, a 
measure "enf orced or collected in the case of an imported product at the time or point of 
importation" can be regarded as an internal measure. In that sense, for internal regulations 
applying to imported and like domestic products and enforced at the time of importati on for the 
imported product, an analysis under Article III is prioritized.  
 
39. As the EU recalls, the condition for Article III to apply is that the imported product and the 
domestic product face the same (although not necessarily identical) requirement.  Such a 
requirement is then an internal regulation, although enforced upon importation. As the Panel in 
EC – Asbestos  explained, "… the word … "and" in the English text … [of Ad Note to Article III] 
implies in the first place that the measure applies to th e imported product and to the like domestic 
product."  
 
40. However, Ad Note to Article III does not imply that when a measure is subject to Article III 
then Article XI cannot apply. In this regard, it must be recalled that in India – Autos  the Panel 
consid ered that in certain circumstances a measure may have an impact (or effect) upon both the 
importation of products (Article XI) and the competitive conditions of imported products on the 
internal market (Article III).  
 
41. The Panel in India – Autos  implie d that, in the context of a specific measure and in the 
particular circumstances of a case, different effects of such measure may come under the purview 
of Article III and Article XI. That finding seemed to reflect in a later dispute in Argentina – Import 
Measures . In that case the Panel addressed a measure by which, among other requirements, 
companies were not allowed to import unless they increased the level of local content of domestic 
production through import substitution. The Panel found that the requ ired increase of local 
content, either by purchasing from domestic producers or by developing local manufacture, had a 
direct limiting effect on imports, because economic operators were required to replace a specified 
amount of imports with domestic produc ts in order to continue importing. The Panel found that 
this requirement, together with others, constituted a restriction on the importation of goods and 
thus rendered the measure inconsistent with Article XI:1 of the GATT 1994.  
 WT/DS484/R/Add.1  
 
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  42. Interestingly, in th at case the Panel found that the same measure, with respect to the same 
local content requirement, modified the conditions of competition in the market to the detriment of 
imported products. Therefore, imported products were granted less favorable treatmen t than like 
domestic products within the meaning of Article III:4 of the GATT 1994. Accordingly, the measure, 
with respect to the local content requirement, was found to be inconsistent also with Article III:4 
of the GATT 1994.  WT/DS484/R/Add.1  
 
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ANNEX C -2 
EXECUTIVE SUMMAR Y OF THE ARGUMENTS O F AUSTRALIA  
AUSTRALIA'S VIEWS ON INDONESIA'S IMPORT LICENCING REGIMES  
 
1. Under various Indonesian laws identified by Brazil,1 and by ourselves and other third parties 
in written submissions, Indonesia has in place the following measure s to restrict imports of animal 
products:  
(a) prohibition of chicken meat and chicken products not listed in its regulations.2 This is in 
effect a positive list prohibition;  
(b) restriction of importation other than for certain limited uses.3 This includes  rules 
preventing the sale of imported meat products in modern and traditional markets, 
which reduce the commercial opportunities for imported goods;  
(c) limited licence validity periods and application windows. These prevent long term 
planning and contrac tual arrangements, impose additional costs on importers and 
exporters when the issuance of licences is delayed, and effectively prevent imports at 
the beginning and end of each import period;4 
(d) fixed licence terms. These prevent importers from respondin g to any changes in the 
importing or exporting market during an import period;5 
(e) restrictions on the transportation of imported animal products;6 and 
(f) strict enforcement of halal labelling requirements7 when these same requirements are 
rarely enforce d with regard to equivalent domestic products.  
 
Australia considers that these measures constitute prohibitions and restrictions on importation 
inconsistent with Article XI:1 of the General Agreement on Tariffs and Trade 1994 (GATT 1994) 
and Article 4.2 of  the Agreement on Agriculture . To the extent that this Panel finds that the use, 
sale and distribution restrictions are internal measures, Australia considers that they are contrary 
to Article III:4 of the GATT  1994.8 
2. Australia agrees with Brazil that, to the extent the Panel considers that Indonesia's 
measures are non -automatic licensing procedures, they are also inconsistent with Article 3.2 of the 
Agreement on Import Licensing Procedures . As there is no underlying permissible restriction 
implemented b y these licensing procedures, the trade -restrictive effects of these procedures, 
including their effect on long -term business planning and the flow of goods at the beginning and 
end of each import period, must be considered "additional". Furthermore, the p rocedures are 
clearly "more administratively burdensome than absolutely necessary" as there is no permissible 
measure that they administer.  
INDONESIA'S CLAIMS R EGARDING ITS MEASURE S 
3. In our written submission, Australia disagreed with several claims made  in Indonesia's first 
written submission. In Australia's view, Indonesia's assertions in regard to Article XI.1 of the 
GATT  1994 and Article 4.2 of the Agreement on Agriculture , and in regard to Article 4.2 of the 
Agreement on Agriculture  and Article XX of  the GATT 1994, are not supported by the text of the 
WTO covered agreements and are inconsistent with the findings of previous panels and Appellate 
Body reports.  
 
                                                
1 Brazil's first written sub mission, paras. 49 -56, 80 -86, 172 -189. 
2 Brazil's first written submission, paras. 191 -194. 
3 Brazil's first written submission, paras. 195 -199. 
4 Brazil's first written submission, paras. 200 -209. 
5 Brazil's first written submission, paras. 210 -213. 
6 Brazil's first written submission, paras. 214 -217. 
7 Brazil's first written submission, paras. 136 -139. 
8 Brazil's first written submission, paras. 268 -283. WT/DS484/R/Add.1  
 
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  4. A number of disputes have considered claims made by Members under both Article XI:1 of 
the GATT 1994 and Article 4.2 of the Agreement on Agriculture.  As outlined in Australia's written 
submission, the panels in Korea - Beef and India - Quantitative Restrictions , found that certain 
measures breached both Article XI:1 of the GATT 1994 and Articl e 4.2 of the Agreement on 
Agriculture .9 
 
5. As Australia outlined in paragraph 24 of its written submission, Australia agrees with Brazil 
that Indonesia's restrictions on imports of animal products are "measures of the kind which have 
been required to be c onverted into ordinary customs duties"10 that are prohibited under Article 4.2 
of the Agreement on Agriculture . These measures are also "quantitative import restrictions …  
discretionary import licensing … and similar border measures"11 as identified in foot note 1 to 
Article 4.2 as specifically prohibited under Article 4.2.  These measures are contrary to Article 4.2 
as a result of the same limiting effects on imports that rendered them inconsistent with 
Article  XI:1 of the GATT 1994. As previous panels have found, a bre ach of Article XI:1 of the 
GATT  1994 will also constitute a breach of Article 4.2 of the Agreement on Agriculture , where the 
measure is among those listed in footnote 1 to Article 4.2.12 
 
6. Indonesia has also asserted that Article III:4 of the GATT 19 94 and Article XI:1 of the 
GATT  1994 are mutually exclusive in their scope of application.13 To date, these provisions have 
not been found by panels to be mutually exclusive.   Given the systemic issues regarding the 
distinction between market access and domestic regulation, in Australia's view the Panel should 
carefully consider the classification of the measures at issue before reaching a conclusion. It is 
Australia's view that the Panel should examine the relationship between the two provisions in l ight 
of the manner in which Brazil has characterised its claims.  
 
7. The Panel in India – Autos  found that "there may be circumstances in which specific 
measures may have a range of effects".14 The Panel went on to say that "[i]n appropriate 
circumstances [ specific measures] may have an impact both in relation to the conditions of 
importation of a product and in respect of the competitive conditions of imported products on the 
internal market within the meaning of Article III:4".15 For a Panel to find that a measure has 
"different effects" (i.e. definitive effect on importation, and then modifies the conditions of 
competition once the goods have entered the market), and therefore the measure may be both an 
internal measure and a border measure, will turn on th e facts in dispute, and the scope of the 
measure under challenge. In Brazil – Retreaded Tyres , the Panel noted that "what is important in 
considering whether a measure falls within the types of measures covered by Art. XI:1 is the 
nature of the measure".16 In Australia's view, the Panel should examine whether a measure can be 
assessed as a border measure and internal measure simultaneously in light of the manner in which 
Brazil has characterised its claims.  
 
8. Australia notes that regulations that give effe ct to the measures at issue in this dispute have 
been frequently replaced. This has created continuing uncertainty and lack of transparency, 
without effecting any material change.17 Australia considers that in order to "secure a positive 
solution to [a] dis pute"18 it is important that the Panel make rulings and recommendations on the 
measures at issue, irrespective of any changes to the regulations that Indonesia may have made, 
which do not actually effect any material change. In this regard, the Panel's char acterisation of the 
measure will be important.  
 
9. In its first written submission, Indonesia asserts that regardless of whether its measures are 
found to be WTO -inconsistent under various agreements, the measures are nevertheless justified 
                                                
9 Panel Report, Korea - Various Measures on Beef , paras. 762 and 768. Panel Report, India - 
Quantitativ e Restrictions , paras. 5.238 -5.242.  
10 Article 4.2, Agreement on Agriculture.  
11 Footnote 1 to Article 4.2, Agreement on Agriculture.  
12 Panel Reports, Korea – Various Measures on Beef , para. 762 and India – Quantitative Restrictions , 
paras. 5.238 -5.242.  
13 Indonesia's first written submission, paras. 81 -89. 
14 Panel report, India-Autos , para 7.296.  
15 Ibid. 
16 Panel report, Brazil – Retreaded Tyres, para 7.372.  
17 Brazil's first written submission, paras. 57 -58. 
18 Article 3.7 of the Understanding on Rules and Proc edures Governing the Settlement of Disputes 
(DSU).  WT/DS484/R/Add.1  
 
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  under Article X X of the GATT 1994.19 Australia does not agree with Indonesia's claims that several 
of its measures can be justified under the exceptions in Articles  XX(a), (b) and (d) of the 
GATT  1994.  Indonesia provides no convincing evidence to support its claims that these measures 
are designed or "necessary" to achieve these objectives or that it has considered less trade -
restrictive alternatives.  Nor has Indonesia demonstrated it has equivalent measures in place to 
address any similar alleged risks posed by like dom estic products. The Panel should therefore 
conclude that these measures do not meet the criteria in the Article XX exceptions, and also 
amount to "an arbitrary or unjustifiable discrimination between countries where the same 
conditions prevail, or a disgui sed restriction on international trade", contrary to the chapeau of 
Article XX.  
 
CONCLUSION  
 
10. In conclusion, Australia considers that Indonesia's prohibitions and restrictions on imports of 
animal products are clearly inconsistent with Indonesia's WTO o bligations under the GATT 1994, 
the Agreement on Agriculture  and the Agreement on Import Licencing Procedures . In respect of 
the GATT 1994, Australia further considers that these measures cannot be justified under any of 
the exceptions in Article XX of the  GATT 1994. Australia is further concerned that the measures at 
issue have been frequently amended to cause further uncertainty for importers and exporters, in 
order to achieve Indonesia's broader policy of self -sufficiency.  
 
                                                
19 Indonesia's first written submission, paras. 179-192, 209 -217, 232 -234, 295 -302, 342 -355. WT/DS484/R/Add.1  
 
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ANNEX C -3 
EXECUTIVE SUMMARY OF THE ARGUMENTS OF CANADA  
I. INTRODUCTION  
1. Canada intervenes in this dispute because of its systemic  interest, as a major exporter of 
agricultural products, including animals and animal products, in the correct interpretation of 
Article  XI:1 of the GATT  1994 and Article 4.2 of the Agreement on Agriculture  (AoA).  
II. INDONESIA'S IMPORT C ONTROL MEASURES  
2. The various laws and regulations maintained by Indonesia that make up its import control 
regime overlap in substance and appear to Canada to be designed  to function as an integrated 
whole.  
3. Several of the measures at issue refer in some way to "insufficiency of local production" as a 
prerequisite for the approval of importation. Other measures appear to impose restrictions on the 
end use of imported chi cken meat and products. There is also a positive list of goods that may be 
imported that seems to prohibit unlisted products from being imported. A multi -step approval 
process for the importation of chicken meat and products confers broad discretionary pow ers on 
decision -makers and appears to require that importers recomplete the process if they wish to 
continue to import products beyond the prescribed "validity term". Shipping requirements stipulate 
that carcasses, meat and/or processed products must be tr ansported directly from the country of 
origin to their Indonesian port of destination. Finally, one measure at issue appears to require a 
valid International Veterinary Certificate as a pre -condition to importation.  
III. ARTICLE XI:1 OF THE GATT 1994  
4.  Article XI:1 of the GATT 1994 lays down a general obligation to eliminate quantitative 
restrictions.  In doing so, it reflects one of the basic principles animating the GATT 1994, that is, 
the idea that tariff measures are preferable to border measures that  restrict trade volumes and 
distort prices.  Thus, measures that prohibit or restrict the importation, exportation, or sale for 
export of products, other than duties, taxes or other charges, are inconsistent with the 
GATT  1994.1 
5. The Appellate Body has o bserved that the use of the word "quantitative" in the title of the 
provision indicates that "Article XI […] covers those prohibitions and restrictions that have a 
limiting effect on the quantity of a product being imported and exported."2 However, the App ellate 
Body has also noted that Article XI:1 does not cover "every condition or burden placed on 
importation or exportation".3 For a measure to fall within the scope of Article XI:1, it must "limit 
the importation or exportation of products".4 
6. The Appel late Body has also indicated that the phrase "made effective through" suggests 
that Article XI:1 covers, not only measures that set out prohibitions or restrictions, such as 
quantitative limits or quotas, but also measures "through which a prohibition or r estriction is 
produced or becomes operative".5 The Appellate Body has further stated that "in the context of 
import formalities or requirements, Article XI:1 requires an examination of whether those 
measures themselves produce a limiting effect on imports. "6 
                                                
1 Panel Reports, India – Quantitative Restrictions , paras. 5.128 -5.129; Colombia – Ports of Entry , para. 
7.233; a nd Dominican Republic – Import and Sale of Cigarettes , para. 7.248.  
2 Appellate Body Reports, China – Raw Materials , para. 320.  
3 Appellate Body Reports, Argentina – Import Measures , para. 5.217.  
4 Ibid. 
5 Ibid. para. 5.218.  
6 Appellate Body Reports, Argen tina – Import Measures , para. 5.245.  WT/DS484/R/Add.1  
 
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  7. In addition, demonstrating that a measure has a limiting effect on imports does not require 
a complainant to produce evidence of actual trade effects. Rather, "such limiting effects can be 
demonstrated through the "design, architecture, and revealing  structure of the measure at issue 
considered in its relevant context."7 This is because Article XI:1 "protects competitive 
opportunities" rather than trade flows.8 
8. The Appellate Body has observed that the term "prohibition" is defined as  a "legal ban o n 
the trade or importation of a specified commodity."9 This suggests that for a measure to constitute 
a "prohibition" it must proscribe all trade in the commodity in question.  
9. In contrast, the legal standard for determining whether a measure "restricts"  imports 
considers: 1) the limiting effect of conditions placed on imports and 2) the negative effect on the 
condition of competitive opportunities of like imported goods.10 
A. The panel must properly characterize measures under Indonesia's 
Licensing Regime  as restrictions or prohibitions  
10. In Canada's view, various measures under Indonesia's import control regime appear to be 
designed to protect and promote the domestic chicken industry. C anada does not take a final 
position on the proper characterization  of the various measures cited by Brazil, but notes that 
most of the measures at issue appear to fit more easily into the category of import restrictions 
under Article XI:1. Only the alleged delay in undertaking and completing the sanitary approval 
require d to enable Brazilian exports of chicken meat and products seems to operate as a de facto  
general prohibition.  This is because the alleged failure by Indonesia to undertake and complete 
the approval process has precluded imports of Brazilian chicken meat and products to Indonesia 
since 2009.  
11. The panel in Argentina – Import Measures  reiterated the meaning of "restriction" as 
interpreted by previous panels and the Appellate Body:  
The panel in India – Quantitative Restrictions  also noted that the ordinary  meaning 
of the term "restriction" is "a limitation on action, a limiting condition or 
regulation". The panel in India – Autos  and the Appellate Body in China – Raw 
Materials  endorsed this interpretation. The Appellate Body in China – Raw Materials  
added t hat the term "restriction" "refers generally to something that has a limiting 
effect".11 
12. In Colombia – Ports of Entry , the panel reaffirmed the reasoning applied by the India – 
Autos  panel that a "restriction" cannot mean merely "prohibitions" on import s since Article XI:1 
covers both instances of restrictions and prohibitions on imports.12 Likewise, a prohibition cannot 
mean only that restrictions on imports exist. This distinction should similarly be properly reflected 
in the panel's assessment of Brazi l's claims since Brazil refers to both the general measure and the 
individual measures as operating to both limit imports of chicken meat and products and as a 
general prohibition on imports. This conflation of the terms 'prohibition' and 'restriction' has  the 
potential to expand the meaning of the term "restriction" and the understanding of measures that 
constitute a restriction on imports. Such a conflation should be avoided.  
13. Canada submits that the positive list maintained by Indonesia on permitted c hicken meat 
and products appears to operate as a restriction rather than a complete prohibition under 
Article  XI:1 as it only excludes from import certain subcategories of chicken meat and products.     
                                                
7 Ibid. para. 5.217.  
8 Panel Report, Argentina – Hides and Leather , para. 11.20.  
9 Appellate Body Reports, China – Raw Materials , para. 319.  
10 Panel Report, Colombia – Ports of Entry , para. 7.234.  
11 Panel Reports  Argent ina – Import Measures , para. 6.452. See also Panel Reports, India – Quantitative 
Restrictions , para. 5.129; India – Autos , paras. 7.269 -7.270; and Appellate Body Reports, China – Raw 
Materials , para. 319.  
12 Panel Report, Colombia – Ports of Entry , para. 7. 234. WT/DS484/R/Add.1  
 
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  14. Canada agrees with Brazil that the design and str ucture of the import licensing system 
creates a procedural burden on importers and creates a disincentive to import, negatively affecting 
the conditions of competition and limiting imports.13 
15. Meanwhile, the possibility of additional restrictions being i mplemented pursuant to the 
discretion that is accorded to the Minister under Indonesia's chicken products and meat import 
regime can affect the business decisions of private actors to avoid imports. The panel in Argentina 
– Import Measures  found that compl etely opaque and unfettered discretion exercised by 
governmental entities over import licenses creates uncertainty for importers of goods and is 
therefore a restriction that violates Article XI:1 of the GATT 1994.14 Therefore, a measure that 
lacks criteria and provides overly broad discretion in determining if the required approvals will be 
granted, and consequently if the import licence will be issued, is likely to constitute an import 
restriction that is inconsistent with Article XI:1 of the GATT 1994.           
B. The panel must assess whether individual measures or the cumulative 
effects of measures operate as a de facto prohibition on imports of 
chicken meat and products  
16. The limiting effects on imports or the negative effects on the conditions of com petition of 
imports under Article XI:1 of the GATT 1994 should be characterized as a "prohibition" only where 
the effects are so severe as to completely prevent the entry of any of the subject goods. Where an 
individual measure or the cumulative effect of numerous measures operates to create a de facto 
prohibition on imports, then those measures must be found inconsistent with Article XI:1 of the 
GATT 1994. Therefore, the Panel must consider whether the cumulative effect of the measures at 
issue operate as a de facto complete ban on chicken meat and products from Brazil.  
17. Both the delays in the veterinary certification and the direct transportation requirements for 
chicken meat and products appear to operate as a de facto prohibition on chicken meat and 
chicken imports from Brazil, even though the measures, on their face, do not prohibit imports of 
such products.  
18. Canada recalls that a prohibition has been defined as instituting a legal ban on a good.  The 
legal standard applied by the Panel should main tain that threshold. Anything less than a "legal 
ban", whether de facto or de jure, should still be assessed as a restriction on imports.  
IV. ARTICLE 4.2 OF THE A OA: ANALYSIS OF PROH IBITED NON -TARIFF MEASURES  
A. The legal standard to be applied  
19. Under A rticle 4.2 of the AoA, WTO Members are obliged not to maintain, resort to, or revert 
to any measures of the kind which have been required to be converted into ordinary customs 
duties.15 Footnote 1 provides examples of measures captured by Article 4.2. If a WTO Member 
adopts or maintains a measure of the kind listed in Footnote 1, that Member violates Article 4.2.  
B. Indonesia's Measures: Quantitative Import Restriction, Discretionary 
Import Licensing, or "Similar Border Measure"?  
1. The domestic insufficienc y condition  
20. Indonesia's framework legislation, as applied through its import licensing regime, only allows 
for the possibility of imports of chicken and chicken products when the government deems 
domestic production insufficient to satisfy the market. Furthermore, the laws and regulations 
establishing Indonesia's import licensing regime do not provide for explicit criteria by which the 
government is to determine domestic insufficiency. In Canada's view, this strongly suggests that 
Indonesia's "domestic insufficiency" condition operates as a quantitative import restriction. If, 
however, Indonesia's "domestic insufficiency" condition does not constitute a quantitative import 
                                                
13 Ministry of Trade Regulation 05/M -DAG /PER/1/2016, Exhibit BRA -03. 
14 Panel Reports, Argentina – Import Measures, para. 6.467.  
15 Article 4.2 of the Agreement on Agriculture, as contained in Annex 1 A to the WTO Agreement 
(Article  4.2). WT/DS484/R/Add.1  
 
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  restriction, it should also be assessed against the "discretionary import licensin g" category.  
Should Indonesia's domestic insufficiency condition not fall squarely within the meaning of a 
quantitative import restriction or discretionary import licensing, it should also be evaluated to 
determine whether it falls within the meaning of a  "similar border measure other than ordinary 
customs duties".  
2. Strict application windows and short licence validity periods  
21. Indonesia's one -month application window for import recommendations and approvals 
directly preceding the three -month validity  period for import licences limit the quantity of imports 
of chicken and chicken products for several weeks within each quarter of a given year . Should 
Indonesia's strict licence application windows and short licence validity periods not constitute per 
se quantitative import restrictions, given that they have the effect of limiting the quantity of 
imports of chicken and chicken products, they should be considered as "similar border measures 
other than ordinary customs duties".  
3. End-use restrictions  
22. Indonesia's end -use requirements for imports of chicken and chicken products prohibit their 
importation except for certain specific purposes, restricting access to the Indonesian market, 
either fully or partially. Indonesia's Schedules of Concessions under t he GATT 1994 does not 
provide for such restrictions. Should Indonesia's end -use requirements not constitute per se  
quantitative import restrictions, given that they have the effect of restricting access to the 
Indonesian market, either fully or partially, they should be considered as similar border measures 
that are like or resemble the non -tariff measures listed in Footnote 1 to Article 4.2.  
V. CONCLUSION  
23. Canada invites the Panel to take the foregoing observations into account when assessing 
whether In donesia's measures collectively and/or individually comply with the requirements of 
Article XI:1 of the GATT 1994 and Article 4.2 of the AoA.  
 WT/DS484/R/Add.1  
 
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ANNEX C -4 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF THE EUROPEAN UNION  
1. The European Union intervenes in this cas e because of its systemic interest in the correct 
and consistent interpretation and application of the covered agreements and other relevant 
documents, and the multilateral nature of the rights and obligations contained therein, in particular 
the General A greement on Tariffs and Trade 1994 (GATT 1994), the Agreement on Agriculture, the 
Agreement on Import Licensing Procedures (Import Licensing Agreement) and the Agreement on 
the Application of Sanitary and Phytosanitary Measures (SPS Agreement). This execut ive summary 
integrates comments made by the European Union in the Third Party Hearing on 14 July 2016 and 
in its reply to the written questions by the Panel of 2 August 2016.  
2. The case concerns a number of measures by Indonesia restricting the importatio n of chicken 
meat and chicken products. The European Union believes that the measures challenged by Brazil 
constitute quantitative restrictions within the meaning of Article XI:1 of the GATT 1994 and Article 
4.2 of the Agreement on Agriculture. Their justi fication under Article XX of the GATT 1994 is 
implausible for most of them, and at least doubtful for the intended use requirement. The 
combined operation of various features of the Indonesian import licensing system, including 
applications to and document s issued by various authorities, very limited application windows and 
validity periods for import licences and fixed terms thereof is also problematic with regard to 
Article 3.2 of the Import Licensing Agreement. The main legal arguments made by the Europe an 
Union in its submissions can be summarised as follows.  
3. On the scope of application of the various provisions at stake: The European Union does not 
see a conflict between the provisions of Article XI:1 of the GATT 1994 and Article 4.2 of the 
Agreement  on Agriculture. For the purposes of the analysis in these proceedings, both provisions 
contain substantially similar obligations, especially with the same burden of proof as regards 
exceptions under Article XX of the GATT 1994. Hence, they apply concurren tly to the measures at 
issue, with no mandatory order of analysis. Article 3.2 of the Import Licensing Agreement applies 
only to procedural restrictions (requirements of a formal, administrative nature), not to 
substantive restrictions (the import regime i tself), which the non -automatic licensing procedure 
implements. Such procedural restrictions can be challenged concurrently under Article 3.2 of the 
Import Licensing Agreement and Article XI:1 of the GATT 19941, without a mandatory order of 
analysis.  
4. On the alleged overarching measure of a "general import ban" on Brazilian chicken meat and 
chicken products, the European Union invites the Panel to consider all measures composing the 
overarching measures individually before examining the alleged overarchin g measure composed of 
these measures. In the European Union's view, in principle only components which are themselves 
non-compliant with WTO -law should be taken into account when assessing the existence of the 
overarching measure. The approach to be taken might however be different where (some of) the 
individual measures are inseparable from each other or from the overarching measure.  
5. The elements that a complainant must substantiate are attribution of the measure to the 
respondent, precise content and a ny additional features relevant to the specific type of measure at 
stake. What these additional features are depends on how the measure has been described or 
characterized by the complainant2. In the present case, following Brazil's description of the 
overarching measure, such additional feature consists in the fact that the individual measures, 
linked by virtue of the underlying policy objective of protecting domestic production, operate 
together so as to constitute a total import ban. It must result from the design and architecture of 
the overall system that it is more than the sum of the individual measures. Figuratively speaking, 
the overarching measure is like a "bouquet" of flowers, which by its composition and arrangement 
is obviously more than indivi dual flowers lying around scattered on the floor. When considering 
whether individual components work together as a single measure distinct from its components, 
                                                
1 See Appellate  Body Report, Argentina – Import Measures , para. 5.244.  
2 Appellate Body Report, Argentina – Import Measures , paras. 5.108, 5.110.  WT/DS484/R/Add.1  
 
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  the Panel needs to carry out a holistic assessment of the entire system, with particular attent ion to 
the overall effects and the underlying policy objective. The underlying objective is a central 
element; it can be considered as the "glue" that glues the individual measures together into the 
overarching measure.  
6. On the question whether the inten ded use requirement falls under Article III:4 and XI:1 of 
the GATT 1994, the European Union invites the Panel to consider the design and architecture of 
the measure. By its design and architecture, the requirement seems to be a border measure falling 
under  Article XI:1 of the GATT 1994 (rather than a "behind the border measure" falling under 
Article III:4 of the GATT 1994). The measure has a clear potential impact on trade volumes, and, 
in particular, the European Union has not seen evidence of equivalent d omestic legislation 
restricting uses for domestic frozen meat in the same way as for imported frozen meat. Thus, the 
measure cannot be considered an internal measure pursuant to the Ad note to Article III of the 
GATT 19943 If Indonesia were to show that su ch truly equivalent internal regulation exists, the 
assessment would be different.  
7. For the so -called "likeness test" under Article III:4, the Panel should not apply 
mechanistically the different criteria developed by the case -law (physical properties, e nd-uses, 
consumers' tastes and habits and tariff classification). It should rather analyse which are the 
products that are in a competitive relationship at least in a certain segment of the market4 It is 
crucial that the universe of products on both sides of the equation (imported and domestic) is 
exactly the same.  
8. With regard to an alleged undue delay of the competent authorities in undertaking and 
completing the approval  procedures within the meaning of Article 8 and Annex C(1)(a) of the 
SPS Agreement , the European Union is of the opinion that the inaction of the applicants can only 
be relevant to justify that delay if it relates to the failure to submit documents or other evidence 
required in order to conduct the risk assessment or other controls desi gned to protect human, 
animal or plant life or health. The fact that domestic legislation makes the completion of a 
procedure under the SPS Agreement dependent on the satisfaction by the applicants of other 
requirements unrelated to the objectives of that Agreement should not, regardless of the nature of 
such requirements and of their eventual consistency with WTO obligations, justify of itself the 
inaction of the authorities competent for administering the SPS approval procedure.  
 
                                                
3 See Panel Report, EC — Asbestos , paras. 8.91 -8.95. 
4 Appellate Body Reports, EC-Asbestos , paras. 101 -103 (and cases cited t herein); Philippines — Distilled 
Spirits , paras. 121, 220.  WT/DS484/R/Add.1  
 
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ANNEX C -5 
EXECUTIVE SUM MARY OF THE ARGUMENT S OF JAPAN  
I. The Relationship of Article 4.2 of the Agreement on Agriculture With Article XI:1 of 
the GATT 1994  
1. Although Indonesia argues that the "difference between how the balance is struck between 
Members' obligations and rights " under Article 4.2 of the Agreement on Agriculture, on the one 
hand, and Articles XI:1 and XX of the GATT 1994, on the other, "results in a conflict within the 
meaning of the Article 21.1" of the Agreement on Agriculture,1 Japan disagrees with Indonesia's  
argument.  Indonesia's interpretation is not supported by previous WTO jurisprudence in Korea – 
Various Measures on Beef2 and India – Quantitative Restrictions ,3 which found that certain 
measures breached both Article 4.2 of the Agreement on Agriculture a nd Articles XI:1 of the 
GATT  1994.  Further, t here is no conflict between Article 4.2 of the Agreement on Agriculture and 
Article XI:1 of the GATT 1994. A complainant claiming a violation of Article 4.2 does not have to 
demonstrate that the challenged meas ure is not a measure maintained under other general, non -
agriculture -specific provisions of the GATT 1994 or other Multilateral Trade Agreements in 
Annex  1A of the WTO Agreement, if the complainant chose not to challenge the measure under 
any other provisi ons or when a respondent chooses not to invoke any other provisions in its 
defense.  
2. In any case, in this dispute, the complainant invokes both Article 4.2 of the Agreement on 
Agriculture and Article XI:1 of the GATT 1994 and the Panel has the discretion  to decide the order 
of analysis of these alleged violations.  
II. General Prohibition  
3. Brazil argues that six challenged measures, when combined, impose a general ban on 
imports of chicken meat and chicken products.4 In its examination of this claim, the Panel should 
be guided by the Appellate Body 's finding  in Argentina – Import Restrictions  that, in addition to 
attribution and precise content of the challenged measure that must be established in every WTO 
disputes, a complainant may be required to demon strate "other elements, depending on the 
particular characteristics or nature of the measure being challenged " 5 in proving the existence  of a 
measure at issue. Japan also notes that, in Argentina – Import Restrictions , the Appellate Body 
stated that "a complainant challenging  a single measure 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 compon ents."6 
4. Further, Japan is of the view that, although the Panel may begin its assessment by 
considering the WTO -inconsistency of each element of the general prohibition, such assessment is 
not enough to reach a conclusion that the general prohibition is inconsistent with Indonesia's WTO 
obligation.  This understanding is consistent with the panel's finding in US-Export Restraints , which 
stated that "[i]n considering whether any or all of the measures individually can give rise to a 
violation of WTO obliga tions, the central question that must be answered is whether each measure 
operates in some concrete way in its own right. By this we mean that each measure would have to 
constitute an instrument with a functional life of its own, i.e., that it would have t o do something 
concrete, independently of any other instruments, for it to be able to give rise independently to a 
violation of WTO obligations."  7 This finding indicates that the general prohibition should exist as 
                                                
1 Indonesia FWS, para. 74.  
2 Panel Report, Korea – Various Measures on Beef , WT/DS 161/169/R, Ju ly 31, 2000, para. 762.  
3 Panel Report, India – Quantitative Restrictions , WT/DS 90/R, April 6 , 1999, paras. 5.241 -5.242.  
4 Brazil  FWS, para s. 74-76. 
5 Appellate Body Report, Argentina – Import Measures ,  WT/DS 438/444/445 /AB/R, January 15 , 2015, 
para. 5.1 04 
6 Id., para.5.108  
7 Panel Report, US – Export Restraints , WT/DS194/R, June 29, 2001, para. 8.85.  WT/DS484/R/Add.1  
 
- C-18 - 
 
  distinct from its elements, and it is such nature of the general prohibition which  should be 
assess ed in considering the WTO -consistency . 
5. In any case, t he Panel should carefully assess the interaction and operation of each element 
of the general prohibition  to decide whether the general prohi bition exists and whether the 
combination of each element leads to a finding of WT O-inconsistency because the 
WTO-inconsistency of the general prohibition should not be found simply by combining multiple 
elements into  a single measure.  
III. Intended Use  
6. Indonesia argues that Article III:4 of the GATT 1994, concerning internal measures, and 
Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture, concerning border 
measures, are mutually exclusive and that only Article III:4 applies in this case. Japan submits 
that the Panel's decision to apply Article III:4 or Article XI:1 should be guided by the structure, 
design, and architecture of the challenged measure.  While the intended use requirement imposed 
in this case is an import licens ing requirement, which suggests the measure is subject to 
Article XI:1, if the Panel finds that a similar measure applies to Indonesia's domestic like products, 
application of Article III:4 would be appropriate.  
IV. Article XI:1 of the GATT 1994   
7. Japan agrees with Brazil that any "prohibition" or "restriction" on importation may be 
considered a violation of Article XI:1 of the GATT 1994, if that restriction could have limiting 
effects on the importation of products of other Members.8 Article XI:1 does no t impose a high 
threshold with respect to the limiting effects that a measure must have to constitute a 
"restriction."  Rather, limiting effects exist when a measure narrows opportunities for importation, 
thus limiting an imported product's ability to comp ete. 910 
8. With regard to the means or features that may have "limiting effect " under Article XI:1,  the 
panel in Colombia – Ports of Entry  explained that "a number of GATT and WTO panels have 
recognized the applicability of Article XI:1 to measures which c reate uncertainties and affect 
investment plans, restrict market access for imports or make importation prohibitively costly, all of 
which have implications on the competitive situation of an importer ", and that "these cases were 
based on the design of the  measure and its potential to adversely affect importation. "11 Likewise, 
in Argentina – Import Measures , the panel found  the DJAI procedure (in which an importer must 
file a DJAI (Advance Sworn Import Declaration) and obtain " exit" status to import goods in to 
Argentina ) had a limiting effect because "it: (a) restrict [ed] market access for imported products 
to Argentina as obtaining a DJAI in exit status is not automatic ; (b) create[d] uncertainty  as to 
applicant 's ability to import; (c) d[id] not allow  compa nies to import as much as they desire or 
need without regard to their export performance; and (d) impose[d] a significant burden  on 
importers that is unrelated to their normal importing  activity. "12 In short, prohibitions or 
restrictions to imports through basically any means violate Article XI:1.13 
9. The followin g three considerations also support a broad understanding of the concept of 
"limiting effects" and accordingly of the term "restriction" in Article XI:1 of the GATT 1994:  
                                                
8 Panel Report, Argentina – Import Measures , WT/DS438/444/445/R, June 26, 2014, para. 6.363.  
9 E.g., Panel Report, Argentina – Hides and Leather , WT/DS155/R, February 16, 2001, para. 11.20 , 
Panel Report, India – Autos , WT/DS146/175/R, December 21, 2001, paras.  7.269 -7.270 , and Panel Report, 
Dominican Republic – Import and Sale of Cigarettes , WT/DS/302/R, November 26, 2004, para. 7.261 . 
10 As presented in the Responses of Japan to Panel 's Questions for the Third Parties Following the First 
Panel Meeting, J apan co nsiders that the EU 's argument stressing a discernible quantitative dimension  of a 
measure  puts too much weight on the quantitative aspect required for there to be a limiting effect.  The EU 's 
argument seems to entail an additional unnecessary burden of pr oving "a discernible quantitative dimension of 
the measure, in the form of a limiting effect on the quantity or value " for demonstrating a limiting effect under 
Article XI:1 of the GATT 1994.  
11 Panel Report, Colombia – Ports of Entry , WT/DS 366/R, April 27 , 2009, para. 7.240 . 
12 Panel Report, Argentina – Import Measures , para.  6.474 . (emphasis added)  This finding was not 
reversed by the Appellate Body ( see Appellate Body Report, Argentina – Import Measures , paras.  5.287 -288). 
13 Other examples are:  the trade b alancing condition as "an importer  is not free to import as many 
restricted kits or components  as he otherwise might so long as there is a finite limit to the amount  of possible 
exports " (Panel Report, India – Autos , paras. 7.320-7.322.); and all of (i) the granting of licenses on 
"unspecified  merits ", (ii) making only government agencies eligible for licenses to import certain products, and 
(iii) restricting the entities that could obtain import licenses and the purpose  for which they could do so , 
because they operated so that "certain imports may not be permitted " due to the product  or the prospective 
importer at issue.  (Panel Report, India – Quantitative Restrictions , paras.  5.125, 5.129, 5.137, 5.139, 5.140  
and 5.142 .) WT/DS484/R/Add.1  
 
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  (a) a fundamental principle  of the GATT 1994 is that trade -restrictive measures other 
than tariffs are prohibited unless expressly permitted under Article XI:2 or justified 
by the explicit exceptions in Article XX of the GATT 1994;  
(b) the measures that are excluded from the prohib ition under Article XI:1 are 
specifically stipulated in Article XI:1 itself ("duties, taxes or other charges") and in 
Article  XI:2, and thus all other measures with limiting effects were intended  to be 
prohibited under Article  XI:1; and  
(c) while applicat ion of a high threshold for the limiting effects could result in 
circumvention of GATT disciplines for measures without justifiable underlying policy 
objectives, it is not the case that legitimate trade -restrictions are unreasonably 
prohibited by a broad u nderstanding of the concept of limiting effects because 
import restrictions which serve justifiable policy objectives could be justified under 
the general exceptions provided in Article XX of the GATT 1994 and thus properly 
addressed under the GATT  discipl ines. 
V. Article XX of the GATT 1994  
10. Finally , Japan invite s the Panel to carefully assess Indonesia's claims under Article XX  of the 
GATT 1994 .  In particular, Indonesia's arguments under Article XX (a), (b), and (d) should be 
carefully assessed as to whether the alleged objectives are specific enough, and  whether the 
measures  are designed for and are necessary to achieve these  policy objectives listed in these 
provisions . 
 WT/DS484/R/Add.1  
 
- C-20 - 
 
   
ANNEX C -6 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF NEW  ZEALAND  
INTRODUCTION  
 
1. Since 2009, Indonesia has enacted a series of laws and regulations that prohibit and restrict 
imports of agricultural products when domestic production is deemed sufficient to satisfy domestic 
demand. These instruments result in complex import licensing reg imes that underpin a publicised 
government strategy to reduce imports to encourage domestic agricultural production in the hope 
of achieving self -sufficiency in food.  
2. In New Zealand's view, Indonesia's import regime is inconsistent with core WTO obligat ions. 
Specifically, as argued in Indonesia — Importation of Horticultural Products, Animals and Animal 
Products  (DS477/DS478), New Zealand considers that several elements of Indonesia's import 
licensing regime for animal products (including chicken meat an d chicken products) are 
inconsistent with Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture.  
I. FACTUAL BACKGROUND  
 
3. Indonesia maintains an overarching framework of laws that underpin its import regimes for 
chicken and other a nimal products.  In particular, Law 18/2009 as amended by Law 41/2014 (the 
Animal Law), Law 18/2012 (the Food Law), Law 7/2014 (the Trade Law) and Law 19/2013 (the 
Farmers Law) establish a framework through which imports of animal products are prohibited 
where domestic production is deemed sufficient to fulfil domestic demand.  Pursuant to these laws, 
Indonesia has promulgated regulations through which additional prohibitions and restrictions on 
importation are made effective.  
4. As described above, there i s substantial overlap between the measures at issue in this dispute 
and those challenged by New Zealand and the United States in DS477/DS478.1 Specifically, the 
disputes challenge Indonesia's:  
 
a.  "Positive list" prohibition  on unlisted animal products, w hich prohibits importation of 
animal products that are not listed in the relevant regulations;  
 
b.  Restrictions on use, sale and distribution of imported animal products  (including 
chicken meat and chicken products), which prohibit all imported animal pro ducts 
from being imported for certain uses;  
 
c.  Limited  application windows and validity periods  for MOA Import Recommendations 
and MOT Import Approvals, which provide that authorisation to import may only be 
applied for during limited application windows  and is only valid for limited time 
periods;  
 
d.  Fixed licence terms  for MOA Import Recommendations and MOT Import Approvals, 
which prevent importers from importing, during a validity period, products of a 
different type, in a greater quantity, from anoth er country, or through a different 
port than those specified in an MOA Import Recommendation and MOT Import 
Approval;  
 
e.  Indonesia's  general prohibition on certain imports  which consists of the combined 
interaction of several different restrictive measur es that co llectively prohibit or 
restrict imports of animal products, including chicken meat and chicken products. 
New Zealand also considers that the domestic insufficiency condition , which forms 
part of the Indonesian import regime challenged by Brazil, constitutes a standalone 
                                                
1 See New Zealand's request for the  establishment of a panel, WT/DS477/9, circulated 24 March 2015 
and the United States request for the establishment of a panel, WT/DS478/9, circulated 24 March 2015.  WT/DS484/R/Add.1  
 
- C-21 - 
 
  restriction on importation.  
 
5. New Zealand considers that these measures constitute prohibitions and restrictions on 
importation inconsistent with Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on 
Agriculture.  
6. New Zealand notes that Indonesia's import regulations have changed frequently in recent years. 
However, many of the core trade -restrictive elements of its import regime, including those 
challenged by Brazil in this dispute, have not materially changed throu gh these various iterations 
of the regulations.  In light of these frequent changes to the instruments  through which the 
measures at issue are made effective, New Zealand considers that it is important for this Panel to 
make rulings and recommendations on the measures at issue,  irrespective of minor changes that 
may have been made to the  instruments through which these measures are made effective.  
II.  PROHIBITIONS AND RESTRICTIONS ON THE IMPORTATION OF ANIMAL PRODUCTS 
INCLUDING CHICKEN MEAT AND CHICKEN PRO DUCTS  
 
 1. Indonesia's restrictions on the importation of animal products  
  
(a) The positive list prohibition on unlisted animal products  
 
7. New Zealand agrees with Brazil's submission that animals and animal products that are not 
listed in the Appendices  of MOA 58/2015 and MOT 5/2016 are prohibited from importation.2 
In 
addition to the specific HS Codes identified by Brazil in its first written submission, a number of 
other animal products are also prohibited from importation through this measure.  Indone sia's 
regulations are clear that the carcass, meat, offal and processed products that can be imported are 
limited to those that are listed in the relevant appendices to MOA 58/2015 and MOT 5/2016. 
Products that are unlisted are ineligible to obtain MOA Imp ort Recommendations and MOT Import 
Approvals, both of which are pre -requisites to importation.  
 
8. New Zealand does not consider that the positive list prohibition challenged by Brazil has been 
removed by MOT 37/2016.  Indeed, MOT 37/2016 expressly acknowl edges that products that are 
not listed must still obtain both an MOT Import Approval and an MOA Import Recommendation.  
However, unlike listed  products, in respect of which the process for obtaining MOT Import 
Approvals and MOA Import Recommendations is s et out in MOT 5/2016 and MOA 58/2015, there is 
no process by which MOT Import Approvals and MOA Import Recommendations for unlisted 
products  can be obtained.  This is because, based on New Zealand's understanding, MOA Import 
Recommendations and MOT Import Approvals cannot be obtained for such products.  
 
   (b) Restrictions on use, sale and distribution of imported animal products  
 
9. As detailed in Brazil's submission, Indonesia's regulations prohibit importation of animal 
products other than for use in "h otels, restaurants, caterings, industries, and other particular 
purposes".  The effect of this measure is that animal products are not permitted to be imported 
into Indonesia for any form of domestic use, or to be sold or distributed through consumer retai l 
outlets.  Importantly, it precludes certain imported animal products from being imported for sale 
at modern markets such as supermarkets and hypermarkets as well as traditional retail outlets. 
This substantially reduces the opportunities for imported pro ducts to reach Indonesian consumers 
who buy their household food products at these locations, and effectively precludes importation of 
certain animal products for domestic consumption.  
 
10. By prohibiting importation of products for certain uses, or from b eing sold or distributed 
through certain channels, the use and distribution restrictions have a limiting effect on the quantity 
or amount of product which can be imported and therefore constitute a "restriction" within the 
meaning of Article  XI:1 of the GA TT 1994 and a "quantitative import restriction" or "similar border 
measure" within the meaning of footnote 1 to Article 4.2 of the Agreement on Agriculture.  
 
11. New Zealand does not agree with Indonesia that Article XI:1 of the GATT 1994 and Article 4.2 
of the Agreement on Agriculture "do not apply to the intended use requirement". As explained 
above, Indonesia's restrictions on use, sale and distribution of imports of animals and animal 
                                                
2 See Brazil's first written submission, paras. 99 -103. WT/DS484/R/Add.1  
 
- C-22 - 
 
  products are imposed as a condition of importation at the border . The refore, in New Zealand's 
view, these are the appropriate provisions for the Panel to commence its analysis of the 
consistency of the use, sale and distribution restriction.  
 
12. However, to the extent that the use, sale and distribution restriction is cons idered by the Panel 
to be an internal measure, New Zealand considers that it would be contrary to Article III:4 of the 
GATT  1994.  
 
 (c) Limited application windows and validity periods  
  
13. The limited application windows and validity periods for MOA Imp ort Recommendations and 
MOT Import Approvals described by Brazil restrict imports by limiting the time periods during 
which exports are able to access the Indonesian market. In addition, they require importers to 
determine well in advance, and then "lock i n", the terms of importation (including the quantity, 
products, country of origin and port of entry), thereby further limiting market access for imports.  
 
14. The combination of the inability to import at the start of a validity period, along with the 
corresponding inability to export towards the end of a validity period means there is a "dead zone" 
during which products cannot be imported into Indonesia. The limited validity periods also create 
uncertainty and mean that importers are unable to enter into l ong-term contractual obligations 
with exporters, as importers cannot obtain the right to import product beyond the end of the 
upcoming validity period.  
 
15. New Zealand considers that limited application windows and validity periods have a limiting 
effect on the quantity of animal products that can be imported into Indonesia. As a consequence, 
the measure is contrary to Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on 
Agriculture.  To the extent that the Panel finds that the limited applica tion windows and validity 
periods are non -automatic licensing procedures, New Zealand considers that they are also 
inconsistent with Article 3.2 of the ILA.  
 
 (d) Fixed licence terms  
  
16. New Zealand agrees with Brazil's submission that the "fixed licence  terms" constitute a 
restriction on importation inconsistent with Article XI:1 of the GATT 1994 and Article 4.2 of the 
Agreement on Agriculture.  Fixed licence terms "lock in" key terms of importation, including the 
quantity, type, country of origin and po rt of entry of the products that each importer may import 
during the relevant validity period.  
 
17. Fixed licence terms restrict imports by imposing quantitative limits on the amount of product 
that may be imported into Indonesia during each validity perio d. These restrictions are imposed 
through MOT Import Approvals, which specify the maximum quantity of products that may be 
imported during each validity period.  By imposing a limitation on the quantity of products that are 
able to be imported, fixed licen ce terms are inconsistent with Article XI:1 of the GATT 1994 and 
Article 4.2 of the Agreement on Agriculture.  
 
2. Indonesia's general prohibition on the importation of animals and animal 
products including the domestic insufficiency requirement  
  
18. New Z ealand agrees with Brazil's statement that the "combined interaction of several different 
individual measures challenged in the present dispute constitute an overarching measure that is on 
its own a violation of the Covered Agreements".3 In New Zealand's v iew, each of the individual 
trade -restrictive components of Indonesia's import licensing regime for animals and animal 
products constitutes an independent restriction on imports in violation of Article XI:1 of the 
GATT  1994 and Article 4.2 of the Agreement  on Agriculture. However, these individual restrictions 
and prohibitions do not exist in a vacuum. Rather, each element of Indonesia's import licensing 
regime for animals and animal products also operates in conjunction to form an overarching trade -
restric tive measure inconsistent with Article XI:1 of the GATT 1994 and Article 4.2 of the 
Agreement on Agriculture.  
 
19. New Zealand also agrees with Brazil's contention that "the individual measures at stake in the 
                                                
3 Brazil's first written submissio n, para. 74.  WT/DS484/R/Add.1  
 
- C-23 - 
 
  current dispute were conceived to implement an  official trade policy based on the overriding 
objective of restricting imports to protect domestic production".4 This underlying objective is 
reflected in multiple Indonesian laws, and permeates each individual component of Indonesia's 
import licensing re gime. Indonesia's laws are explicit that imports of a range of products are 
prohibited when domestic production is deemed sufficient to meet domestic demand . 
 
III.  Article XX of the GATT 1994  
20. Indonesia has sought to justify a number of its measures un der Articles XX(a), (b) and (d) of 
the GATT 1994.  New Zealand does not consider that any of the measures addressed in New 
Zealand's submissions in this dispute can be justified under these exceptions. In particular, New 
Zealand does not consider that Indo nesia has demonstrated that the measures at issue are 
"necessary" to achieve the objectives specified by Indonesia in accordance with the relevant legal 
standards. New Zealand also considers that Indonesia has failed to demonstrate that its measures 
satisf y the chapeau to Article XX. New Zealand specifically comments on certain aspects of three 
measures in respect of which Indonesia has invoked Article XX defences.  
 
1. The positive list is not justified under Article XX of the GATT 1994  
 
21. New Zealand co nsiders that Indonesia has failed to demonstrate that the positive list is 
justified under Article XX(d) on the basis that it is necessary to secure compliance with "laws and 
regulations dealing with halal requirements … deceptive practices ... and customs  enforcement 
relating to halal".5 
 
22. New Zealand respects Indonesia's commitment to protect the right of its people to consume 
halal food. New Zealand emphasises, however, that the positive list does not determine an animal 
product's eligibility for impo rtation based on its halal status. Rather, the positive list prohibits 
certain products irrespective of whether they conform to Indonesia's halal requirements. 
Accordingly, even if a product is certified as conforming to Indonesia's halal requirements, if it is 
not listed in the appendices to both MOA 58/2015 and MOT 5/2016, it is prohibited from 
importation.6 
 
23. New Zealand also emphasises the trade -restrictiveness of the measure - the positive list 
constitutes a complete prohibition on importation of ce rtain products. There are clearly less trade 
restrictive measures available which would enable Indonesia's objectives to be satisfied, such as 
the existing requirement in Indonesia's laws for imports to have "rightful certificate" certifying that 
the produ cts satisfy its halal standards.  
 
2. The intended use requirement is not justified under Article XX of the GATT 1994  
 
24. In New Zealand's view, Indonesia has failed to demonstrate that the intended use requirement 
is justified under Articles XX(b) and (d)  of the GATT 1994. New Zealand considers that the 
evidence before the Panel supports a conclusion that the measure is both unnecessary to achieve 
the objective of protecting human life or health or to secure compliance with laws and regulations 
regarding p ublic health, deceptive practices and customs enforcement.  
 
25. New Zealand notes that the intended use requirement prevents the sale of all imported meat 
products in traditional markets, but does not appear to impose any comparable restrictions on the 
sale of domestically -produced products in these markets. New Zealand also emphasises that the 
substantial restrictiveness of the intended use requirement must be taken into account. The 
intended use requirement is highly restrictive and prevents imported anim al products from 
reaching the majority of retail consumers in Indonesia.  
 
3. Limited application and validity periods and fixed licence terms are not justified 
under Article XX of the GATT 1994  
 
26. New Zealand considers that Indonesia has failed to demons trate why limited application and 
validity periods and fixed licence terms are necessary for the objectives it specifies under 
Article  XX(d) of the GATT 1994. New Zealand agrees that Indonesia has the right to take measures 
                                                
4 Brazil's firs t written submission, para. 75.  
5 Indonesia's first written submission, paras. 229 - 234. 
6 See Brazil's first writt en submission, paras. 99 - 101. WT/DS484/R/Add.1  
 
- C-24 - 
 
  necessary to secure compliance w ith halal, food safety and customs laws. New Zealand does not 
agree that limiting the periods during which import licences can be obtained, and limiting the 
validity period of such licences, contribute towards, or is necessary for, the achievement of those  
objectives.  
 
IV. LEGAL ISSUES RAISED IN INDONESIA'S FIRST WRITTEN SUBMISSION  
1. Relationship between Article XI:1 of the GATT 1994 and Article 4.2 of the 
Agreement on Agriculture  
 
27. Indonesia contends that there is a "conflict" between Article XI:1 of the GATT 1994 and 
Article  4.2 of the Agreement on Agriculture which renders Article XI:1 "not applicable law in the 
present dispute".7 New Zealand disagrees with this proposition.  
 
28. New Zealand notes that a number of disputes have considered claims made  by Members under 
both Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture. In none of 
those disputes have panels found a conflict between these two articles.8 New Zealand considers 
Indonesia's suggestion of a conflict between the se provisions an untenable interpretation that is 
not supported by the text of the provisions or extensive WTO jurisprudence.  
 
29. Second, there is no "conflict" as New Zealand disagrees with Indonesia's contention that the 
legal standard under Article 4.2  of the Agreement on Agriculture places the burden on a 
complainant to establish that a measure is not maintained under a non -agriculture specific 
provision of the GATT  1994.  
 
30. Furthermore, simply because the Agreement on Agriculture applies only to agr icultural 
products and the GATT 1994 applies to all products (including agricultural products), this does not 
automatically render Article 4.2 of the Agreement on Agriculture the more specific provision in 
respect of import restrictions such as those at is sue in the present dispute.  
 
2. Relationship between Article 4.2 of the Agreement on Agriculture and Article XX 
of the GATT 1994  
 
31. New Zealand does not agree with Indonesia's contention that a complainant has the burden of 
establishing that a measure i s not maintained under general, non -agriculture -specific provisions of 
GATT 1994 or of the other Multilateral Trade Agreements in Annex 1A to the WTO Agreement. 
New Zealand considers that this novel argument is flawed. According to Indonesia, in order to 
demonstrate a violation of Article 4.2 of the Agreement on Agriculture, a complainant would not 
only have to demonstrate a prima facie violation of Article 4.2, but it would also have to posit and 
rebut possible defences under Article XX that a respondent m ight raise.  
 
32. There is no justification for shifting the well -established principle that a respondent bears the 
burden of demonstrating that a measure can be justified under Article XX. It would be 
contradictory if the same provision were an exception t o Article XI:1 of the GATT 1994 and not an 
exception to the obligation under Article 4.2 of the Agreement on Agriculture. The character of the 
Article XX defences is as an exception and such character should be maintained.  
 
                                                
7 Indonesia's first written submission, para. 74.  
8 See for example: Panel Repor t, Korea - Various Measures on Beef, paras. 762 and 768. Panel Report, 
India - Quantitative Restrictions, para. 5.242; Panel Report, US - Poultry (China), paras.  7.484 - 7.487.  WT/DS484/R/Add.1  
 
- C-25 - 
 
   
ANNEX C -7 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF NOR WAY 
I. THE APPLICABILITY OF  BOTH THE GATT 1994 A RTICLE XI:1 AND ARTI CLE 4.2 OF 
THE AGREEMENT ON AGR ICULTURE WITH REGARD  TO THE SAME MEASURE  
 
1. In its first written submission, Indonesia claims that the same aspects of the same measure  
may not be challenged under both the GATT 1994 Article XI:1 and Article 4.2 of the Agreement on 
Agriculture, as these provisions have different legal standards.1 According to Indonesia, "by virtue 
of Article 21.1 of the Agreement on Agriculture, Article 4 .2 applies to measures challenged by 
Brazil to the exclusion of Article XI:1 of the GATT 1994".2  
2. Norway is puzzled by this argument. Like Australia argues in its third party submission, 
Norway asserts that Indonesia's claim lacks support in WTO jurispr udence, as it is clear that a 
measure can constitute a violation of both Article XI:1 of the GATT 1994 as well as of Article 4.2 of 
the Agreement on Agriculture. 3  
II. WHETHER LIMITED (AND  SHORT) APPLICATION P ERIODS AND VALIDITY PERIODS 
OF THE MINISTRY OF  AGRICULTURE'S IMPORT  RECOMMENDATION AND M INISTRY 
OF TRADE'S IMPORT AP PROVAL AS WELL AS FI XED LICENSE TERMS CO NSTITUTE 
RESTRICTIONS ON IMPO RTS. 
 
3. Brazil argues in its first written submission that Indonesia's import licencing procedures 
constitute a "res triction" on importation in violation of the GATT 1994 Article XI:1 as well as the 
Agreement on Agriculture Article 4.2. According to Brazil, this is in particular due to; (i) the 
prohibition of applying for licences for the importation of chicken cuts and  other prepared or 
preserved chicken meat due to their exclusion from the "positive lists" of the products allowed to 
be imported; (ii) the requirements related to the intended uses of imported chicken meat and 
chicken products; (iii) the limited (and shor t) application periods and validity periods of the 
MoA Import Recommendation and MoT Import Approvals; and (iv) the fixed licence terms.4 Norway 
wishes to offer its observations on the latter two elements.  
4. Indonesia asserts that "[t]he mere fact that im porters must reapply periodically for the new 
Import Recommendation and the Import Approval does not, in and of itself, mean that the 
measure at issue is a quantitative restriction".5 Norway agrees that the covered agreements do not 
oblige Members to apply  automatic import licencing. However, if the application windows and the 
validity periods are limited to the extent that they create obstacles which have a "limiting effect" 
on trade, they will also constitute a restriction which fall under the scope of bo th Article  XI:1 of the 
GATT 1994 and Footnote 1 of Article 4.2 of the Agreement on Agriculture.  
5. As regards the fixed licence terms, Indonesia holds that "importers determine their own 
terms of importation" according to this requirement, which in turn do es not have any limiting 
effect on imports. Indonesia refers to the fact that "the terms of import licenses – including the 
type, quantity, country of origin, and port of entry – are at the complete discretion of the 
importers themselves". Hence, Indonesia  argues that "[t]he terms of importation listed on import 
license applications are, therefore, not measures that are ‘instituted or maintained' by Indonesia. 
They fall outside the scope of Article 4.2, as they are determined by private parties".6 We assume  
that Indonesia would use the same argument with regard to scope of Article XI:1 of the 
GATT  1994.  
                                                
1 Indonesia 's First Written Submission, paras. 65 -74. 
2 Indonesia 's First Writte n Submission, para. 74.  
3 Australia 's Third Party Submission, para. 30, referring to Panel Report, Korea – Various Measures on 
Beef, para. 762 and Panel Report, India – Quantitative Restrictions , paras. 5.241 -5.242.  
4 Brazil 's First Written Submission, par a. 200.  
5 Indonesia 's First Written Submission, para. 257.  
6 Indonesia 's First Written Submission, para. 262.  WT/DS484/R/Add.1  
 
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  6. Indonesia's argument appears to rely on the fact that the regime provides that importers 
initially define the terms by setting out in their import licence  applications the specific type of 
products to be imported, quantity, the country of origin of the products, and the port of entry 
through which the products will enter Indonesia. However, Indonesia here fails to point to the 
measure  at issue, as it is the  fact that the licence term, once defined by the importers, are fixed, 
and may not be altered  during a term that constitutes the restriction.  
7. Previous panels have found that measures imposing the same kind of limits as those found 
in Indonesia's import regime violate GATT 1994 Article XI:1. For instance, the panel in Colombia - 
Ports of Entry  concluded that restrictions limiting imports from Panama to two ports of entry in 
Colombia limit "competitive opportunities", and consequently had a limiting effect  on imports 
arriving from Panama contrary to Article XI:1.7 Furthermore, in India – Autos , the panel found that 
a measure which in reality has the consequence that an importer would not be "free to import [as 
much] as he otherwise might" constituted a rest riction.8 Hence, Norway agrees with Brazil that the 
fact that the importers are prevented from responding to changes in market conditions will have a 
limiting effect on trade. Moreover, Norway notes that importers may experience a need to respond 
to other factors that normally affect importation during the validity periods, as well as taking into 
consideration factors related to importation that they did not predict at the start of the validity 
period. Being prevented from doing this can restrict the volume  of imports. The measure 
challenged is therefore not the terms of importation as they are determined by private parties , as 
put by Indonesia,9 but rather the measure limiting what importers may import.  
8. The importers being "free to alter their terms of i mportation from one license application to 
the next"10 does not change the fact that this limitation has a limiting effect in a set term. 
Moreover, one must also bear in mind that import opportunities as regards availability of products 
etc. may change from  one term to another. It is not given that what a company has the "desire 
and ability to export"11 at one point in time would also be desired and available months later.  
III. THE TERM "RESTRICTIO N" IN ARTICLE XI:1 O F THE GATT 1994  
 
9. It is clear from WTO j urisprudence that the term "restriction" in the GATT 1994 Article XI:1 
should be interpreted as something that has a " limiting effect ".12 In establishing this, the Appellate 
Body has stated this can be "demonstrated through the design, architecture, and rev ealing 
structure of the measure at issue".13 In Norway's view, the Panel in this dispute should not deviate 
from this test. We are not convinced that " discernible quantitative dimension" , as suggested by the 
European Union, would be a correct expression of this test.  
 
                                                
7 Panel Report, Colombia - Ports of Entry , para. 7.274.  
8 Panel Report, India – Autos , para. 7.320.  
9 Indonesia 's First Written Submission, para. 262. 
10 Indonesia 's First Written Submission, para. 263. 
11 Panel Report, India – Autos , para. 7.268.  
12 See, e.g. Appellate Body Reports, China - Raw Materials , para. 319; Argentina - Import Measures , 
para. 5.217.   
13 Ibid. WT/DS484/R/Add.1  
 
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ANNEX C -8 
EXECUTIVE  SUMMARY OF THE ARGUM ENTS OF PARAGUAY* 
1. Mr. Chairman and distinguished Members of the Panel, Paraguay would like to thank the 
Panel and the Secretariat for their work in this dispute and for the opportunity to present our  
views today.  
2. Paraguay is a third party in these proceedings, mainly because of our systemic interest in 
the interpretation of the WTO Agreements. We would like to stress the importance that this matter 
reverts for landlocked developing countries, like ours. 
3. In that context, we would like to underscore the key role that Article XI of the GATT 1994 
plays for the multilateral trading system, as it establishes a general prohibition on the use of 
quantitative restrictions. Similar measures generate losses , and thus, have distortive effects for 
international trade. Often, they create systems that are not transparent and increase the trade 
costs for exporters and importers, especially from developing countries.  
4. With regard to the interpretation and applic ation of Article XI of the GATT, the WTO 
jurisprudence has set certain parameters that we would like to recall in our brief statement. First 
and foremost, the scope of this provision has repeatedly been understood in a wide manner. 
Indeed, the broad scope of the term "restriction" has been reaffirmed in the GATT and the WTO 
jurisprudence. It is also clear from previous cases that not only de jure, but also de facto 
restrictive measures are covered by this provision.  
5. We would also like to stress the stand ard of review. Complainants are not required to 
demonstrate trade effects attributable to the challenged measure. Panels have repeatedly stated 
that GATT Article XI reflects the obligation to safeguard the competitive opportunities for imported 
products, a nd, consequently, all complainants need to show is that a measure operates as a 
quantitative restriction without incurring the additional obligation to also show that the measure at 
hand is responsible for the reduced volume of trade.  
6. It follows that pa nels dealing with GATT Article XI must focus their work on the design, 
structure and architecture of the challenged measures, and inquire into whether they may affect 
the importation of products by restricting market access. This could be the outcome of, f or 
example, increased trade costs, as a result of the adoption of more complicated procedures.  
7. Finally, we would like to refer to the panel’s letter of 3 June 2016 regarding Oman and 
Qatar’s request to participate as third parties in this dispute. Parag uay welcomes the panel’s 
decision, and the consideration given to the experience that these WTO Members have in dispute 
settlement cases.  
8. As noted by the panel, the DSU allows the WTO adjudicating bodies to exercise a certain 
margin of discretion when d ealing with issues, that have not been explicitly addressed in the body 
of the DSU. When doing so nevertheless, panels and the Appellate Body must always observe due 
process. In this specific case, we agree with the panel that that due process rights of th e parties 
have not been affected, and we are of the opinion that this type of deliberations will help those 
WTO Members, that have limited experience in dispute settlement, in better understanding the 
rules and procedures.  
9. With that, we conclude our st atement and thank the panel for its attention.  
 
                                                
* Paraguay has requested that it's oral statement serves as executive summary.  WT/DS484/R/Add.1  
 
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ANNEX C -9 
EXECUTIVE SUMMARY OF THE ARGUM ENTS OF QATAR* 
I. INTRODUCTION  
1. Mr. Chairman and distinguished Members of the Panel, the State of Qatar appreciates this 
opportunity to appear before you today as a  third party to the dispute Indonesia – Measures 
Concerning the Importation of Chicken Meat and Chicken Products (DS484).  Qatar is of the view 
that the Panel 's resolution of the dispute should be, first and foremost, respectful of the religious 
and moral choices of each Member.  Qatar will thus limit its intervention to the important 
questions relating to the halal -labelling obligations imposed by Indonesia.  
2. Brazil claims that the halal -labelling requirements violate the National Treatment obligation 
of GATT Article III:4 because Indonesia accords to imported chicken meat and chicken products 
treatment less favorable with respect to the implementation and enforcement of its halal 
requirements as it does to like domestic products.  
3. Indonesia argues that  there is no violation of the National Treatment obligation because (1) 
imported "chilled " or "frozen " chicken products are not "like" domestic "fresh" chicken as 
predominantly sold in the wet markets and (2) the treatment accorded to imported products is no 
less favorable when compared with like domestic products, as soon as the entire regulatory regime 
applicable to domestic products is appropriately taken into account.  In addition, Indonesia argues 
that the halal -labelling requirements do not and cannot  apply to fresh chicken but apply only to 
packaged, chilled or frozen chicken, whether domestically produced or imported.  
4. Furthermore, Indonesia argues that any violation is in any case justified under the General 
Exceptions of GATT Article XX a) and d) , given that the halal requirements are necessary to 
protect public morals and necessary to secure the enforcement of domestic laws that are not 
otherwise WTO inconsistent.  
5. Qatar would like to take this opportunity to address a few systemic consideratio ns raised by 
Brazil 's challenge in this particular case.  
6. First, it should be entirely within the discretion of each Member to impose product -related 
requirements that are necessary to ensure respect for the religious considerations and preferences 
of each Member.  Religious requirements are part of public morals and should not be set aside or 
challenged based on economic or trade -related considerations.  In EC – Seal Products , the 
Appellate Body acknowledged that "Members should be given some scope to de fine and apply for 
themselves the concept of public morals according to their own systems and scales of values. "1  
Qatar considers that this acknowledgement must be given meaning, not only in the specific 
context of a defense under GATT Article XX but also  when examining the consistency of measures 
with a Member 's basic WTO obligations.  One must be careful not to confuse permissible measures 
adopted for religious reasons with impermissible measures imposed so as to afford protection to 
domestic products.  
7. Second, Brazil confirms that it is not challenging the halal requirements as such but only 
their practical application by Indonesia.  In particular, as noted by Indonesia, Brazil has recognized 
that it "takes no issue with regard to the fulfillment of th e halal certification and labelling, as 
required by the Indonesian legislation. "2  However, Qatar is of the view that a panel should pay 
particular attention in the context of a "de facto " challenge of this kind to avoid a false positive.  A 
"de facto " claim of violation arguably concerns only the application and implementation of the 
requirement in question.  But the distinction between application, implementation and enforcement 
                                                
* Qatar has requested that it's oral statement serves as executive summary.  
1 Appellate Body Report, EC – Seals Products , para. 5.199.  
2 Indonesia’s first written submission, par a. 352 referring to Brazil’s first written submission, para. 139.  WT/DS484/R/Add.1  
 
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  of a requirement based on religion and public morals would be difficult and c ould easily become in 
fact a challenge of the requirement itself.  
8. Third, Qatar considers that an important distinction must be made between products 
produced in a manner respectful of religious considerations and requirements in the country that 
imposes  such requirements, on the one hand, and products imported from a country where these 
religious considerations and requirements are not applicable.  For example, respect for halal -
related requirements is part and parcel of Muslim countries ' culture, thus j ustifying perhaps less 
need for additional inspection and verification of products produced domestically.  The fact that 
stringent requirements relating to inspection and verification apply in particular to imported 
products from non -Muslim countries is th us not a protectionist measure but simply a reflection of 
this religious reality.  Although it may not be necessary to demonstrate that the measure is driven 
by protectionist intentions, the complete absence of any evidence suggesting that a measure on its  
face is origin neutral nevertheless violates the National Treatment obligation and in Qatar 's view it 
must play an important role in the context of the Panel 's examination.  
9. Fourth, and related to the above points, the mere fact that there are certain d ifferences in 
the manner in which domestic and imported products are treated should not lead to the immediate 
conclusion that less favorable treatment is accorded.  It must be demonstrated that the measure 
in question has adversely affected the conditions of competition for imported products.  Qatar 
would like to suggest that the Panel closely examines the arguments and evidence cited by Brazil 
in support of its claim of less favorable treatment, with particular attention  to the specific 
circumstances of t he Indonesian market.  
II. CONCLUSION  
10. This dispute raises a number of very important and systemic issues that concern the 
essence of the freedom to regulate for religious reasons.  
11. The key question when it comes to Brazil 's challenge of Indonesia 's halal requirements and 
their application in practice, is whether it has been demonstrated that these measures were 
imposed and applied so as to afford protection or whether the practical differences between 
domestic and imported products explain any differe nces in the treatment of these products.  It 
needs to be examined whether the conditions of competition have been distorted so as to afford 
protection to domestic products.  
12. Public morals and religious requirements are not merely relevant considerations  to justify a 
violation.  In Qatar 's view, they also play an important role when examining whether a violation 
exists in the first place.  In addition, when examining whether a violation can be justified for 
reasons related to religion and public morals, Q atar considers that considerable deference should 
be given to Members. It is our view that it should be the prerogative of each member to regulate 
on the basis of public morals and extensive latitude should be allocated to their right to do so.  
13. Thank you. 
 WT/DS484/R/Add.1  
 
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ANNEX C -10 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF THE  UNITED STATES  
I. INDONESIA 'S IMPORT LICENSING MEASURES AR E INCONSISTEN T WITH ARTICLE XI:1  OF THE 
GATT  1994  AND ARTICLE 4.2 OF THE AGREEMENT ON AGRICULTURE  
1. Indonesia's import licensing regime f or animals and animal products imposes impermissible 
"restrictions" and "prohibitions" within the meaning of Article XI:1 of the GATT  1994. "Restriction," 
as used in Article XI:1, refers to "[a] thing which restricts someone or something, a limitation on 
action, a limiting condition or regulation," i.e., "to something that has a limiting effect."  
"Prohibition" refers to a "legal ban on the trade or importation of a specified commodity."  Thus, 
Article XI:1 establishes a "general ban on import or export res trictions or prohibitions" other than 
duties, taxes, or other charges. Article XI:1 does not require a complaining party to demonstrate 
quantitatively that a measure has adversely impacted the overall volume of imports.  The 
Appellate Body affirmed this in terpretation in Argentina – Import Measures , finding that a 
measure's limitation on action or limiting condition on importation "need not be demonstrated by 
quantifying the effects of the measure at issue; rather, such limiting effect can be demonstrated 
through the design, architecture, and revealing structure of the measure at issue considered in its 
relevant context."  
2. Indonesian regulation MOT 46/2013, as amended, and MOA 139/2014, as amended, list all 
the types of animals and animal products "that ca n be imported" into Indonesia.  Numerous types 
of animals and animal products are not listed in the appendices to these regulations, including 
chicken cuts and parts (frozen and fresh or chilled).  Applications for Recommendations or Import 
Approvals to im port animals or animal products that are not listed in the appendices of both 
regulations will not be granted.  And importers are prohibited from importing animals and animal 
products not specified on a valid Recommendation and Import Approval.  Indonesia' s positive list 
of animals and animal products that can be imported, and its consequent ban on importation of 
any products not included on that list, thus constitutes a "prohibition" in breach of Article XI:1 of 
the GATT 1994.  
3. Indonesia also requires, a s a condition for importation, that animals and animal products be 
imported only for certain specific uses.  This restriction varies in scope depending on the product 
at issue, but for all imported products, the permitted uses do not include retail sale in  traditional 
Indonesian markets, where Indonesians purchase the vast majority of their meat. Specifically, 
importers of the animal products listed in Appendix II to MOT 46/2013 and MOA  139/2014 (non -
bovine animals, meat, and offal) are only eligible to obt ain a Recommendation from the Ministry of 
Agriculture if they indicate on their application a permitted use, including sale in manufacturing, 
hotels, restaurants, catering, or other limited purposes, or for sale in modern markets (i.e., 
supermarkets and co nvenience stores, b ut not in traditional markets). Thus, Indonesia 
impermissibly precludes importers from importing non -bovine animals, meat, and offal for 
commercially important purposes. The use requirements are, therefore, a limitation on action or 
limiting condition on importation constituting a "restriction" in breach of Article XI:1.  
4. Next, Indonesia's application window and validity period requirements create a period of 
several weeks at the end of one validity period and the beginning of another d uring which products 
cannot  be exported to Indonesia.  Specifically, Import Approvals are issued four times a year for a 
single three -month validity period and can be applied for only during the month preceding the 
start of a period; they cannot be submitt ed in advance.  Further, Import Approvals are not issued 
until after the import period has begun, and exporters cannot ship until they receive the approval.  
Moreover, all animals and animal products imported during a validity period must arrive in 
Indones ia and clear customs prior to the end of the period.  This means that exporters must stop 
accepting orders and shipping to Indonesia up to several weeks before the end of the period, 
depending on the time it takes to transport products to a port, ship them  to Indonesia, and clear 
customs.  Consequently, depending on their origin, there is a window of time of up to several 
weeks at the end of each period when Indonesian importers seeking to import animals or animal 
products are precluded  from doing so due to  the structure of the application window and validity WT/DS484/R/Add.1  
 
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  period requirements.  These requirements are a limitation on action or limiting condition on 
importation, and therefore constitute a "restriction" in breach of Article XI:1 of the GATT 1994.  
5. Indonesi a also limits the imports of animals and animal products to products of the type, 
quantity, country of origin, and port of entry listed on the Recommendations and Import Approvals 
granted at the beginning of that period.  Importation of any animals and ani mal products without 
permits covering their type, quantity, country of origin, and port of entry is prohibited.  But once 
an import period begins, importers cannot apply for new permits to import different or additional 
products, or for products shipping f rom, or into, a new location.  Thus imports are strictly limited 
to the products specified on outstanding permits. Importers that do not comply with this 
requirement are subject to sanctions, including revocation of their Recommendations and 
ineligibility for future Recommendations and revocation of their Import Approvals, and any goods 
not in compliance with the requirement will be re -exported at the importer's expense.  Once a 
period begins, therefore, importers cannot make changes based on market or othe r developments 
that may be necessary to meet current demand, whether because certain products are no longer 
needed, because new or additional products are needed due to the unavailability or insufficiency of 
the original orders, or even due to changed circ umstances regarding the importer itself. The type, 
quantity, country of origin, and port of entry requirement imposed through Recommendations and 
Import Approvals is, therefore, a limitation on action or limiting condition on importation, and thus 
constitu tes a "restriction" within the meaning of Article XI:1.  
6. Finally, Indonesia's domestic insufficiency requirement explicitly places a limiting condition 
on imports by conditioning all importation of animals and animal products on the insufficiency of 
dome stic products to meet Indonesian consumers' needs.  The requirement thus severely limits 
the opportunities for importation, in that imported products are given market access only if, and to 
the extent that, domestic supply is deemed insufficient to satisfy  domestic needs. The lack of 
transparency and predictability in the implementation of the domestic insufficiency requirement 
itself has an additional limiting effect on imports.  Therefore, the requirement is a "restriction" 
within the meaning of Article X I:1 of the GATT 1994.  
7. For the same reasons these measures breach Article XI:1 of the GATT 1994, they also 
breach Article 4.2 of the Agreement on Agriculture.  
8. Indonesia's import licensing restrictions for animals and animal products are "measures of 
the kind which have been required to be converted into ordinary customs duties" within the 
meaning of Article 4.2 of the Agreement on Agriculture.  Footnote 1 to Article 4.2 provides that 
such measures include, inter alia , "quantitative import restrictions ," "minimum import prices," and 
"similar border measures" other than ordinary customs duties. Where a measure constitutes a 
"prohibition or restriction" (other than duties, taxes or other charges) in breach of Article XI:1 of 
the GATT 1994, that measure al so would run afoul of the prohibition in Article 4.2 on Members 
maintaining agricultural measures of the kind listed in footnote 1.  The United States considers 
that Indonesia's import licensing measures therefore breach Article 4.2 for the same reasons th ey 
breach Article XI:1 of the GATT 1994.  When a measure concerning agricultural products has been 
found inconsistent with Article XI:1 of the GATT 1994, previous panels have found that the 
measure would also be inconsistent with Article 4.2 of the Agreeme nt on Agriculture.  
II. A COMPLAINANT NEED NOT SHOW THAT A MEASURE DOES NOT FALL WITHIN AN ARTICLE XX 
EXCEPTION TO DEMONSTRATE A BREACH UNDER ARTICLE 4.2 
9. Footnote 1 of Article 4.2 of the Agreement on Agriculture provides that the scope of 
Article  4.2 doe s not extend to measures maintained under "general, non -agriculture -specific 
provisions of the GATT 1994," which include Article XX.  Indonesia asserts that to make a prima 
facie case that a challenged measure is inconsistent with Article 4.2, the complain ant bears the 
burden to show that a measure does not  fall within one of the exceptions of Article XX.  
10. In the United States' view, adopting Indonesia's interpretation would render a successful 
Article 4.2 claim nearly impossible. Taking Indonesia's inte rpretation to its logical conclusion 
means that a complainant must present arguments and evidence to prove a negative; that is, 
none of the measures at issue are maintained under the ten sub -articles of Article XX or under 
other general, non -agricultural -specific provisions of the GATT 1994 or of the other WTO 
multilateral trade agreements.  Indeed, Indonesia has not cited to any previous panel or WT/DS484/R/Add.1  
 
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  Appellate  Body reports that found that the complainant must prove that a measure is not 
maintained under Articl e XX or any other WTO provision in its Article 4.2 prima facie  case.  In fact, 
the panel in India –Quantitative Restrictions  indicated that it is the respondent who must prove 
that the exceptions in footnote 1 apply.  Such an interpretation is also consist ent with previous 
panel and Appellate Body findings indicating more generally that the party that invokes a 
justification under Article XX of the GATT 1994 bears the burden to demonstrate that the 
inconsistent measures come within its scope.  
11. In any eve nt, the United States notes that the Panel need not reach Indonesia's novel legal 
interpretations, because Brazil has raised claims under both Article XI:1 of the GATT 1994 and 
Article 4.2 of the Agreement on Agriculture. If the Panel begins its analysis w ith Article XI:1, 
followed by an examination of Indonesia's defenses under Article XX, and if the Panel were to find 
that each measure breaches Article XI:1 and that Indonesia has made out an affirmative defense 
for any measure, then the Panel would not ne ed to reach the issue raised by Indonesia under 
footnote 1 to Article 4.2 at all because that provision would not apply.  
III.    INDONESIA 'S REQUEST FOR A PRELIMINARY RULING  
12. A close examination of the panel request suggests that Brazil has presented its  claim against 
Indonesia's "general prohibition" in a manner consistent with Article 6.2 of the DSU.  In section I 
of its panel request, Brazil identified a single measure consisting of seven components, each 
described narratively in detail.  Brazil went o n to list the five legal instruments through which the 
single measure is maintained below the narrative description. Finally, Brazil listed 15  provisions of 
the WTO agreements with which it considered the single measure to be inconsistent, including the 
aspect of each of those provisions Brazil was invoking. That is, the single measure was identified 
and then connected with each of the WTO provisions with which Brazil claimed that measure to be 
WTO inconsistent.  Thus, Brazil has sufficiently identified the  single measure and the legal bases 
for its claims to bring the matter within t he Panel's terms of reference.  
13. Questions of whether Brazil has demonstrated that such a measure exists in Indonesia, or 
whether the identified measure breaches any of the 15  WTO provisions, are substantive issues to 
be resolved by the Panel on the merits.  Identification of the objective of a measure also is not 
required for purposes of Article 6.2.  To the extent the objective of a measure is relevant to the 
ultimate resolut ion of a substantive claim, that issue would be resolved by the panel on the merits.  
EXECUTIVE SUMMARY OF  US THIRD PARTY ORAL STATEMENT  
IV. INDONESIA 'S DEFENSES UNDER GATT  ARTICLE XX 
14. Indonesia first seeks to justify its intended use requirement under A rticle XX(b) by arguing 
that it is necessary to protect human life or health.  Setting aside the second step of showing 
compliance with the chapeau to Article XX, to make out preliminarily a defense under 
Article  XX(b), Indonesia must show that two element s of its text are met: (1) that the challenged 
measure's objective is "to protect human, animal or plant life or health" and (2) that the measure 
is "necessary" to the achievement of its objective.  In the context of an exception for a measure 
that would o therwise be WTO -inconsistent, a measure may be viewed as "necessary" when it is 
indispensable, or nearly so.   
15. Indonesia specifically asserts that the intended use requirement prevents food spoilage and 
protects the public health by "ensur[ing] that fr ozen products are not sold in markets without a 
proper cold chain."  However, Indonesia has offered no evidence – from either the text, structure, 
or the legislative history of the Ministry of Agriculture and the Ministry of Trade regulations – to 
show tha t food safety is, in fact, the objective (or one of the objectives) in pursuit of which the 
intended use requirements were imposed.  Therefore, there would not appear to be an evidentiary 
basis for the Panel to find that the first element of the Article XX (b) defense has been met.  With 
respect to the "necessary" element, Indonesia has also failed to show how prohibiting the 
importation of non -beef animal products, including poultry meat and products, for sale in 
traditional markets contributes to the objec tive of food safety. Specifically, the intended use 
requirement in the MOA Regulation at issue only prohibits the sale of imported  frozen meat in 
traditional markets; it does not address the sale of domestic frozen meat at all.  WT/DS484/R/Add.1  
 
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  16. In addition to Article XX(b), Indonesia also attempts to justify the intended use requirement 
under Article XX(d), arguing that it is necessary to secure compliance with Indonesia's laws on 
food safety and consumer protection, in particular Law 18/2009 on Animals and Law  8/1999 on 
Consumer Protection.  Although the MOT and MOA regulations "noted" Law  18/2009 and 
Law 8/1999 in their preambulatory sections, there is no support in the text, structure, or the 
legislative history of legal instruments that shows that the intended use r equirement was designed 
to secure compliance with the food safety and consumer protection provisions cited by Indonesia.  
17. More importantly, Indonesia has failed to show that the intended use requirement is 
necessary to secure compliance with the legal p rovisions it identified.  With respect to the food 
safety laws, Indonesia has not explained how barring the importation of poultry products for sale 
at traditional markets contributes to securing compliance with Articles 58 and 59 of Law 18/2009, 
which rel ate to the requirement on the government to regulate animal products for food safety 
within its authority and the requirement for importers to obtain import permits.  And with respect 
to compliance with the consumer protection law, Indonesia argues that th e intended use 
requirement prevents vendors in traditional markets from selling thawed frozen meat as fresh 
meat. However, as discussed above, the intended use requirement does not address domestic 
frozen meat at all, making any contribution to securing co mpliance with consumer deception 
provisions negligible.  
18. Indonesia also asserts that its positive list requirement, which prohibits the importation of 
any product not listed in its regulations, is justified under Article XX(d), because it is designed – 
and necessary – to secure compliance with its laws on halal as well as consumer protection and 
customs enforcement laws related to halal.  Again, however, Indonesia has failed to sufficiently 
support its defense.  The entirety of its argument consists of  (1) listing the provisions regarding 
veterinary certificates, halal certification, and the requirement to provide truthful product 
information, and (2) concluding that it can be "hardly disputed" that the positive list requirement is 
designed to secure com pliance with those laws. Indonesia has offered only its own characterization 
of the objective, without evidence or even argumentation in support; this is insufficient to meet its 
burden under the first element of the Article XX(d) test.  
19. With respect to  the first element, Indonesia provides no evidence or explanation to show 
that the positive list is designed to secure compliance with halal and related laws.  Even aside from 
Indonesia's failure to establish the first element, however, Indonesia cannot de monstrate that the 
positive list is necessary to secure compliance with its law on halal and consumer protection and 
customs enforcement laws related to halal, because the positive list simply bans the importation of 
any poultry meat and poultry products n ot listed in the import licensing regulations, regardless of 
whether they comply with Indonesia's halal requirements.  
20. In seeking to justify the limited application window and validity periods and the fixed license 
term requirements under Article XX(d),  Indonesia appears to have adopted the same approach it 
took with respect to the positive list requirement. That is, it lists a myriad of food safety, halal, and 
consumer protection laws, and concludes summarily that "it can hardly be disputed" that its im port 
licensing measures are designed to secure compliance with those provisions.  Again, Indonesia has 
not offered any evidence or explanation from the text, structure, or legislative history on whether  
or how these two measures are designed to secure comp liance with halal and other legal 
requirements.  Such a showing is clearly insufficient to succeed und er the first element of 
Article  XX(d).  
21. Indonesia also has failed to explain sufficiently how the limited application window and 
validity periods and t he fixed license term requirements are necessary to secure compliance with 
the food safety, halal, and consumer protection provisions it has identified. Instead, Indonesia 
asserts that these requirements "enable[] government officials to monitor foreign tr ade" by 
making the importers reapply for permits periodically.  As examples, Indonesia argues that these 
requirements address the problems of "overstatement of anticipated import volume" and customs 
enforcement at the various ports of entry.  None of these  arguments and examples relate to the 
food safety, halal, and consumer protection provisions that Indonesia cited.  WT/DS484/R/Add.1  
 
- C-34 - 
 
  V. THE LEGAL STANDARDS REGARDING BRAZIL 'S "GENERAL PROHIBITION " CLAIM 
22. The United States would also like to offer initial views on Brazil' s identification of a "general 
prohibition" in Indonesia on the importation of poultry meat and poultry products, as well as the 
legal standards applicable to Brazil's demonstration of the existence of such a measure.   
23. First, with respect to identific ation, the DSU does not specify in detail the types of measures 
that complainants may identify in a panel request.  The DSU requires that the measure be "taken 
by another Member" and suggests that a measure would normally be capable of "impair[ing]" 
"benef its accruing to it directly or indirectly under the covered agreements" and would normally be 
capable of being withdrawn in the absence of a mutually agreed solution.  Once the complainant 
identifies a specific measure in the panel request, this measure fo rms part of the "matter" referred 
to the Dispute Settlement Body under Article 7.1 of the DSU and that the DSB tasks the panel with 
examining to assist the DSB in carrying out its responsibilities under the DSU.    
24. Second, with respect to proving the e xistence of the challenged measure, the  United  States 
recalls that the burden is on the complainant to demonstrate the existence of a measure.  This 
requirement on the complainant is the same whether the measure is written or unwritten.  Due to 
the nature of an unwritten measure, however, a larger volume of evidence may be required to 
prove the existence of an unwritten measure while a written measure may often be identified 
solely by reference to its publication.  
25. In Argentina – Import Measures , the Ap pellate Body found that a panel should look to "the 
specific measure challenged and how it is described and characterized by a complainant" to 
determine "the kind of evidence it is required to submit and the elements it must prove to 
establish the existenc e of the measures challenged."  The Appellate Body further noted that, in a 
dispute in which the complainant has characterized the measure as a single, unwritten measure 
composed of different instruments, the complainant may need to "provide evidence of ho w 
different components operate together as part of a single measure and how a single measure 
exists as distinct from its components."  
26. Therefore, the Panel may find that the "general prohibition" challenged by Brazil exists if 
Brazil brings forward evid ence that such a prohibition exists "as distinct from" the individual 
measures constituting that prohibition, as identified by Brazil in its panel request.  
 
 
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