INDONESIA – SAFEGUARD ON CERTAIN IRON OR STEEL PRODUCTS NOTIFICATION OF AN APPEAL BY INDONESIA UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
Document: AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
Date: 29 September 2017
Document codes: WT/DS490/5; WT/DS496/6
Complainant: Taiwan
Respondent: Indonesia
Third parties: Australia, China, EU, India, Japan, Russia, Ukraine, Vietnam, U.S.
Dispute stage: Appellate Body
Agreements cited: Art. XIX:1  GATT 1994Art. 3.1, 2.1, 4.2(a), 4.2(c), 4.2(b)  SafeguardsArt. I:1  GATT 1994Art. 12.2  SafeguardsArt. XIX:2  GATT 1994Art. 12.3  Safeguards

INDONESIA – SAFEGUARD ON CERTAIN IRON OR STEEL PRODUCTS
NOTIFICATION OF AN APPEAL BY INDONESIA
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES
AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU),
AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
The following communication, dated 28 September 2017 , from the delegation of Indonesia,
is being circulated to Members.

Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes (DSU) and Rule 20 of the Working Procedures for Appellate Review,
Indonesia hereby notifies the Dispute Settlement Body of its decision to appeal to the Appellate
Body certain issues of law and legal interpretation cov ered in the Panel Report entitled
Indonesia — Safeguard on Certain Iron or Steel Products (, ), which was
circulated on 18 August 2017 (the "Panel Report"). Pursuant to Rules 20(1) and 21(1) of the
Working Procedures for Appellate Revie w, Indonesia is simultaneously filing this Notice of Appeal
with the Appellate Body Secretariat.

For the reasons to be further elaborated in its submission to the Appellate Body, Indonesia
appeals, and requests the Appellate Body to modify or reverse leg al interpretations leading to the
legal findings and conclusions of the Panel, with respect to the following errors contained in the
Panel Report:1

1 THE PANEL ERRED IN DETERMINING THAT REGULATION NO. 137.1/PMK.011/2014 IS
INCONSISTENT WITH ARTICLE I:1 OF THE GATT 1994 BECAUSE IT IS NOT A SAFEGUARD
MEASURE
Indonesia contends that the Panel erred in finding that suspension of MFN obligation couldn 't be
the basis of safeguard imposition since it is not necessary to remedy or prevent serious injury to
the domestic producers or due to the existence of the General Interpretative Note to Annex 1A of
the WTO Agreement. This finding is in contradiction with an adopted panel report Dominican
Republic – Safeguard Measures.2 In addition, this issue is not under the Pan el's term of reference
and during the course of panel proceeding no party to the dispute has ever challenged that
Regulation No. 137.1/PMK.011/2014 is not a safeguard measure.3

Since Regulation No. 137.1/PMK.011/2014 is a safeguard measure, the Panel err ed in finding that
Regulation No. 137.1/PMK.011/2014 is inconsistent with Article I:1 of the GATT 1994. In addition,
the Panel also erred in concluding that the complainants also make the same claim on the basis of
the same arguments against the specific d uty as a stand -alone measure. Indonesia requests the
Appellate Body to reverse the Panel's conclusions and the Panel's legal interpretations contained in
paragraphs 7.11, 7.31, 7.38, 7.40, 7.41, 7.43 and 7.44. In addition, Indonesia requests the
Appellate Body to reverse the Panel's findings in paragraph 8.1 of its Report.

1 Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for Appellate Review, this Notice of Appeal
includes an indicative list of the paragraphs of the Panel Report containing the alleged errors, without prejudice
to Indonesia's right to refer to other paragraphs of the Panel Report in the context of its appeal.
2 Panel Report, para. 7.30.
3 Panel Report, para. 7.10.
WT/DS490/5 • WT/DS496/6

2 THE PANEL ERRED TO MAKE A FINDING THAT IS OUTSIDE ITS TERM OF REFERENCE
Indonesia submits that the panel erred in making findings that is outside its term of reference
because of two reasons. First, the Panel has made a finding relating to Article 1 of the Agreement
on Safeguards and Article XIX:1(a) last sentence relating to the definition of a safeguard measure
which was not included in its term of reference nor has ever been raised by any party to the
dispute. Second, the Panel has erred in making a finding of the consistency of
Regulation 137.1/PMK.011/2014 as a stand-alone measure (not as a safeguard measure) which is
outside the measure at issue in the Panel 's request. In the Panel r equest, complainants have
explicitly identified the measure at issue as "the specific duty imposed as a safeguard measure "4
and a party's submission during panel proceedings cannot cure a defect in a panel request.5

Based on the foregoing, Indonesia is of the view that the Panel has acted beyond its term of
reference which is inconsistent with Article 6.2 and Article 7 of the DSU because (1) the Panel
makes a finding under Article 1 of the Agreement on Safeguards or the last sentence of
Article XIX:1(a) of the GATT 1994 when there is no such claim in the panel request; (2) the Panel
erred in making a finding of the inconsistency of Article I:1 of the GATT 1994 based on a
stand-alone measure (not as a safeguard measure) which is not identified as such by t he
complainants in the Panel request. Therefore, Indonesia requests the Appellate Body to reverse
the Panel's conclusions and the Panel 's legal interpretations contained in paragraphs 7.10, 7.40,
7.42-7.44 and 8.1.

3 THE PANEL FAILED TO MAKE AN OBJECTIVE AS SESSMENT UNDER ARTICLE 11 OF THE
DSU WITH RESPECT TO FINDING REGULATION 1 37.1/PMK.011/2014 IS NOT A
SAFEGUARDS MEASURE
Indonesia is of the view that the Panel failed to conduct an objective assessment by self -initiating
an examination of an undisputed issu e beyond its term of reference which departed from a well
established case law. The Panel could not invoked Article 11 of the DSU to justify this approach.
Several case laws referred to by the Panel as legal basis have different circumstances and facts. All
prior WTO cases involving safeguard measures never started an examination of claims of
inconsistency under any provision of the Agreement on Safeguards by first examining whether the
measure at issue is in fact a safeguard measure within the meaning of A rticle 1 of the Agreement
on Safeguards if not disputed by any party. In fact the Panel has acknowledged that both parties
have never challenged and have concurring positions that Regulation 137.1/PMK.011/2014 is a
safeguard measure.

In addition, the Pan el raised this issue whether the measure at issue is a safeguard measure
within the meaning of Article 1 of the Agreement on Safeguards at the later stage of Panel
proceeding which is on the second substantive meeting.6

Therefore, Indonesia requests the Appellate Body to reverse the Panel 's conclusions and the
Panel's legal interpretations contained in paragraphs 7.10 and 7.40, 7.43 and 8.1.

In addition, Indonesia notes that the above grounds of appeal are without prejudice to the
arguments developed in Indonesia Appellant's Submission.

Establishment of a panel by TKPM, WT/DS490/2, 21 August 2015.
5 Appellate Body Report, EC and Certain Member States – Large Civil Aircraft, para. 642.
6 See Second Set of Panel Questions.