EUROPEAN UNION – ANTI-DUMPING MEASURES ON IMPORTS OF CERTAIN FATTY ALCOHOLS FROM INDONESIA AB-2017-1
Document: Report of the Appellate Body
Date: 5 September 2017
Document codes: WT/DS442/AB/R
Complainant: Indonesia
Respondent: EU
Third parties: India, South Korea, Turkey, U.S., Malaysia, Thailand
Dispute stage: Appellate Body
Agreements cited: Art. 2.3, 2.4, 5.8, 3.1, 3.4, 3.5, 9.4, 9.2  Anti-dumpingArt. X:3(a)  GATT 1994Art. 2.6, 4.1, 3.2, 3.3, 6.7, 6.9, 1, 18  Anti-dumpingArt. VI  GATT 1994

EUROPEAN UNION – ANTI-DUMPING MEASURES ON IMPORTS OF CERTAIN
FATTY ALCOHOLS FROM INDONESIA
AB-2017-1
Report of the Appellate Body

ABBREVIATIONS USED IN THIS REPORT
Abbreviation Description
Anti-Dumping Agreement Agreement on Implementation of Article VI of the General Agreement
on Tariffs and Trade 1994
BCI Business Confidential Information
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of
Disputes
Ecogreen PT Ecogreen Oleochemicals
EU Basic Anti-Dumping
Regulation
Council Regulation (EC) No. 1225/2009 of 30 November 2009 on
protection against dumped imports from countries not members of
the European Community, published in Official Journal of the
European Union, L Series, No. 343 (22 December 2009), p. 51 ff
(Panel Exhibit EU-3)
Final Determination Council Implementing Regulation (EU) No. 1138/2011 of
8 November 2011 imposing a definitive anti-dumping duty and
collecting definitively the provisional duty imposed on imports of
certain fatty alcohols and their blends originating in India, Indonesia
and Malaysia, Official Journal of the European Union, L Series,
No. 293 (11 November 2011), pp. 1-18 (Panel Exhibit IDN-4)
GATT 1994 General Agreement on Tariffs and Trade 1994
General Court European Union's General Court
General Disclosure
Document
European Commission, General Disclosure Document dated 26 August
2011, AD563, Proposal to impose definitive anti-dumping duties on
Imports of certain fatty alcohols and their blends originating in India,
Indonesia and Malaysia (Panel Exhibit IDN-39)
ICOF-S Inter-Continental Oils & Fats Pte Ltd (Singapore)
Interpipe Judgment Court of Justice, Judgment of 16 February 2012 in joined Cases
C-191/09 P and C-200/09 P, Council of the European Union
(C-191/09 P) / European Commission (C-200/09 P) v. Interpipe
Nikopolsky Seamless Tubes Plant Niko Tube ZAT (Interpipe Niko Tube
ZAT) and Interpipe Nizhnedneprovsky Tube Rolling Plant VAT
(Interpipe NTRP VAT) (concerning Judgment of the Court of
First Instance of the European Union, Case T-249/06, Interpipe Niko
Tube ZAT and Interpipe NTRP VAT v. Council of the European Union
[2009] ECR II-383) (Panel Exhibit IDN-49)
Notice of initiation of the
investigation
European Commission, Notice of initiation of an anti-dumping
proceeding concerning imports of certain fatty alcohols and their
blends originating in India, Indonesia and Malaysia, Official Journal of
the European Union, C Series, No. 219 (13 August 2010), pp. 12-16
(Panel Exhibit IDN-12)
P&L profit and loss statement
Panel Report Panel Report, European Union – Anti-Dumping Measures on Imports
of Certain Fatty Alcohols from Indonesia, WT/DS442/R
Panel's BCI Procedures Additional Working Procedures Concerning Business Confidential
Information of 13 July 2015, contained in Annex A-2 of the Panel
Report
Preliminary Determination Commission Regulation (EU) No. 446/2011 of 10 May 2011 imposing
a provisional anti-dumping duty on imports of certain fatty alcohols
and their blends originating in India, Indonesia and Malaysia, Official
Journal of the European Union, L Series, No. 122 (11 May 2011),
pp. 47-62 (Panel Exhibit IDN-3)

Abbreviation Description
PT Musim Mas Indonesian producer PT Perindustrian dan Perdagangan Musim Semi
Mas
PT Musim Mas Judgment Judgment of the General Court (seventh Chamber), 25 June 2015, in
Case T-26/12, PT Perindustrian dan Perdagangan Musim Semi Mas
(PT Musim Mas) v. Council of the European Union (Case C-468/15P)
ECLI:EU:T:2015:437 (Panel Exhibit EU-4)
Revised Determination Council Implementing Regulation (EU) No. 1241/2012 of 11
December 2012 amending Implementing Regulation (EU)
No. 1138/2011 imposing a definitive anti-dumping duty and collecting
definitively the provisional duty imposed on imports of certain fatty
alcohols and their blends originating in India, Indonesia and Malaysia,
Official Journal of the European Union, L Series, No. 352
(21 December 2012), pp. 1-5 (Panel Exhibit IDN-5)
SG&A selling, general and administrative costs
Working Procedures Working Procedures for Appellate Review, WT/AB/WP/6, 16 August
2010
WTO World Trade Organization
WTO Agreement Marrakesh Agreement Establishing the World Trade Organization

PANEL EXHIBITS CITED IN THIS REPORT
Exhibit
Number Description
IDN-2 Email correspondence of 10 and 11 July 2013
IDN-3
Commission Regulation (EU) No. 446/2011 of 10 May 2011 imposing a
provisional anti-dumping duty on imports of certain fatty alcohols and their
blends originating in India, Indonesia and Malaysia, Official Journal of the
European Union, L Series, No. 122 (11 May 2011), pp. 47-62
IDN-4
Council Implementing Regulation (EU) No. 1138/2011 of 8 November 2011
imposing a definitive anti-dumping duty and collecting definitively the
provisional duty imposed on imports of certain fatty alcohols and their blends
originating in India, Indonesia and Malaysia, Official Journal of the
European Union, L Series, No. 293 (11 November 2011), pp. 1-18
IDN-5
Council Implementing Regulation (EU) No. 1241/2012 of 11 December 2012
amending Implementing Regulation (EU) No. 1138/2011 imposing a definitive
anti-dumping duty and collecting definitively the provisional duty imposed on
imports of certain fatty alcohols and their blends originating in India, Indonesia
and Malaysia, Official Journal of the European Union, L Series, No. 352
(21 December 2012), pp. 1-5
IDN-8 Email correspondence of 12, 19, and 22 September 2014 between the
WTO Secretariat and the parties
IDN-12
European Commission, Notice of initiation of an anti-dumping proceeding
concerning imports of certain fatty alcohols and their blends originating in
India, Indonesia and Malaysia, Official Journal of the European Union, C Series,
No. 219 (13 August 2010), pp. 12-16
IDN-17 Excerpt from the company-specific definitive disclosure to PT Musim Mas, dated
26 August 2011 (BCI)
IDN-18 PT Musim Mas response to Commission questionnaire AD563 (2010),
Annex A-3.4: Corporate structure of the Musim Mas group (BCI)
IDN-19 PT Musim Mas response to Commission questionnaire AD563 (2010),
Annex A: List of PT Musim Mas' shareholders (BCI)
IDN-22 PT Musim Mas response to Commission questionnaire AD563 (2010)
(excerpt – response to question H-2.4) (BCI)
IDN-24 Sale and Purchase Agreement between PT Musim Mas and Inter-Continental
Oils & Fats Pte Ltd (1 January 2009) (BCI)
IDN-25 Sale and Purchase Agreement between PT Musim Mas and Inter-Continental
Oils & Fats Pte Ltd (1 January 2010) (BCI)
IDN-26
PT Musim Mas, "Impact of the Interpipe judgment on the fatty alcohol
anti-dumping investigation (AD563): PTMM situation", PowerPoint presentation
at the DG Trade hearing on 16 August 2012 (BCI)
IDN-27 CMS Hasche Sigle, Company-internal memorandum dated 22 November 2010
concerning "Inspection Visit Medan 22-25.11.2010" (BCI)
IDN-33 Provisional Company-Specific Disclosure to PT Musim Mas, Annex 2: Calculation
of dumping margin (BCI)
IDN-34 PT Musim Mas' Comments on the Preliminary Determination, 10 June 2011
(BCI)
IDN-38
CMS Hasche Sigle, Company-internal memorandum dated 18-19 November
2010 concerning "Minutes Inspection Visit Singapore 18.11.2010" (verification
of ICOF-S) (BCI)

Exhibit
Number Description
IDN-39
European Commission, General Disclosure Document dated 26 August 2011,
AD563, Proposal to impose definitive anti-dumping duties on Imports of certain
fatty alcohols and their blends originating in India, Indonesia and Malaysia
IDN-47 Verification Exhibit PTMM-18 (BCI)
IDN-49
Court of Justice, Judgment of 16 February 2012 in joined Cases C-191/09 P and
C-200/09 P, Council of the European Union (C-191/09 P) / European
Commission (C-200/09 P) v. Interpipe Nikopolsky Seamless Tubes Plant Niko
Tube ZAT (Interpipe Niko Tube ZAT) and Interpipe Nizhnedneprovsky Tube
Rolling Plant VAT (Interpipe NTRP VAT) (concerning Judgment of the Court of
First Instance of the European Union, Case T-249/06, Interpipe Niko Tube ZAT
and Interpipe NTRP VAT v. Council of the European Union [2009] ECR II-383)
IDN-51 Excerpt from Jacob Viner, Dumping: A Problem in International Trade
(1923)(reprinted, Augustus M. Kelley, 1966)
IDN-52
LCN Legal Limited, "How to Put in Place Effective Intercompany Agreements for
Transfer Pricing", http://lcnlegal.com/how-to-put-in-place-effective-
intercompany-agreements-for-transfer-pricing/, accessed 21 December 2015
IDN-53
LCN Legal Limited, Intercompany Agreement Template for Term Loan
Agreement (2013), available at http://lcnlegal.com/template-intercompany-
agreement-for-transfer-pricing-term-loan-agreement/
IDN-54
LCN Legal Limited, Intercompany Agreement Template for Limited Risk
Distribution Agreement (2014), available at http://lcnlegal.com/template-
intercompany-agreement-for-transfer-pricing-limited-risk-distribution-
agreement/
EU-1 Letter dated 5 November 2010 from the European Commission to CMS Hasche
Sigle concerning AD563 and PT Musim Mas
EU-2 Letter regarding disclosure of provisional findings dated 11 May 2011 (BCI)
EU-3 Council Regulation (EC) No. 1225/2009 of 30 November 2009 on protection
against dumped imports from countries not members of the European
Community, published in Official Journal of the European Union, L Series,
No. 343 (22 December 2009), p. 51 ff
EU-4 Judgment of the General Court (seventh Chamber), 25 June 2015, in Case
T-26/12, PT Perindustrian dan Perdagangan Musim Semi Mas (PT Musim Mas)
v. Council of the European Union (Case C-468/15P) ECLI:EU:T:2015:437
EU-5 PT Musim Mas response to Commission questionnaire AD563 (2010),
Attachment A-3.3.1: Table G – PT Musim Mas Business Organization Structure
(BCI)
EU-6 PT Musim Mas response to Commission questionnaire AD563 (2010),
Attachment A-3.3.2, Table G – Organization Chart – Fatty Alcohols Division
(BCI)
EU-10 Letter dated 26 August 2011 from European Commission to CMS Hasche Sigle
concerning AD563 Definitive Disclosure and PT Musim Mas (PTMM) (disclosure
of definitive findings dated 26 August 2011) (BCI)
EU-12 Excel file "PTMM definitive disclosure.xls" (BCI)
EU-14 List of exhibits provided by the Commission to PT Musim Mas at the conclusion
of three verification visits (BCI)

CASES CITED IN THIS REPORT
Short Title Full Case Title and Citation
Argentina – Ceramic Tiles Panel Report, Argentina – Definitive Anti-Dumping Measures on
Imports of Ceramic Floor Tiles from Italy, WT/DS189/R, adopted
5 November 2001, DSR 2001:XII, p. 6241
Argentina – Footwear
(EC)
Appellate Body Report, Argentina – Safeguard Measures on Imports of
Footwear, WT/DS121/AB/R, adopted 12 January 2000, DSR 2000:I,
p. 515
Argentina – Poultry
Anti-Dumping Duties
Panel Report, Argentina – Definitive Anti-Dumping Duties on Poultry
from Brazil, WT/DS241/R, adopted 19 May 2003, DSR 2003:V,
p. 1727
Brazil – Retreaded Tyres Appellate Body Report, Brazil – Measures Affecting Imports of
Retreaded Tyres, WT/DS332/AB/R, adopted 17 December 2007,
DSR 2007:IV, p. 1527
China – Auto Parts Appellate Body Reports, China – Measures Affecting Imports of
Automobile Parts, WT/DS339/AB/R / WT/DS340/AB/R /
WT/DS342/AB/R, adopted 12 January 2009, DSR 2009:I, p. 3
China – HP-SSST (EU) Appellate Body Report, China – Measures Imposing Anti-Dumping
Duties on High-Performance Stainless Steel Seamless Tubes
("HP-SSST") from the European Union, WT/DS460/AB/R and Add.1,
adopted 28 October 2015
China – HP-SSST (EU) Panel Report, China – Measures Imposing Anti-Dumping Duties on
High-Performance Stainless Steel Seamless Tubes ("HP-SSST") from
the European Union, WT/DS460/R, Add.1 and Corr.1, adopted
28 October 2015, as modified by Appellate Body Report

China – Rare Earths Appellate Body Reports, China – Measures Related to the Exportation
of Rare Earths, Tungsten, and Molybdenum, WT/DS431/AB/R /
WT/DS432/AB/R / WT/DS433/AB/R, adopted 29 August 2014,
DSR 2014:III, p. 805
Dominican Republic –
Import and Sale of
Cigarettes
Panel Report, Dominican Republic – Measures Affecting the
Importation and Internal Sale of Cigarettes, WT/DS302/R, adopted
19 May 2005, as modified by Appellate Body Report WT/DS302/AB/R,
DSR 2005:XV, p. 7425
EC and certain member
States – Large Civil
Aircraft
Appellate Body Report, European Communities and Certain Member
States – Measures Affecting Trade in Large Civil Aircraft,
WT/DS316/AB/R, adopted 1 June 2011, DSR 2011:I, p. 7
EC – Bananas III
(Article 21.5 – Ecuador
II) /
EC – Bananas III
(Article 21.5 – US)
Appellate Body Reports, European Communities – Regime for the
Importation, Sale and Distribution of Bananas – Second Recourse to
Article 21.5 of the DSU by Ecuador, WT/DS27/AB/RW2/ECU, adopted
11 December 2008, and Corr.1 / European Communities – Regime for
the Importation, Sale and Distribution of Bananas – Recourse to
Article 21.5 of the DSU by the United States, WT/DS27/AB/RW/USA
and Corr.1, adopted 22 December 2008, DSR 2008:XVIII, p. 7165
EC – Bed Linen
(Article 21.5 – India)
Appellate Body Report, European Communities – Anti-Dumping Duties
on Imports of Cotton-Type Bed Linen from India – Recourse to
Article 21.5 of the DSU by India, WT/DS141/AB/RW, adopted 24 April
2003, DSR 2003:III, p. 965
EC – Fasteners (China) Appellate Body Report, European Communities – Definitive Anti-
Dumping Measures on Certain Iron or Steel Fasteners from China,
WT/DS397/AB/R, adopted 28 July 2011, DSR 2011:VII, p. 3995

Short Title Full Case Title and Citation
EC – Fasteners (China) Panel Report, European Communities – Definitive Anti-Dumping
Measures on Certain Iron or Steel Fasteners from China, WT/DS397/R
and Corr.1, adopted 28 July 2011, as modified by Appellate Body
Report WT/DS397/AB/R, DSR 2011:VIII, p. 4289
EC – Fasteners (China)
(Article 21.5 – China)
Appellate Body Report, European Communities – Definitive Anti-
Dumping Measures on Certain Iron or Steel Fasteners from China –
Recourse to Article 21.5 of the DSU by China, WT/DS397/AB/RW and
Add.1, adopted 12 February 2016
EC – Fasteners (China)
(Article 21.5 – China)
Panel Report, European Communities – Definitive Anti-Dumping
Measures on Certain Iron or Steel Fasteners from China – Recourse to
Article 21.5 of the DSU by China, WT/DS397/RW and Add.1, adopted
12 February 2016, as modified by Appellate Body Report

EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat
Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted
13 February 1998, DSR 1998:I, p. 135
EC – Tube or Pipe Fittings Appellate Body Report, European Communities – Anti-Dumping Duties
on Malleable Cast Iron Tube or Pipe Fittings from Brazil,
WT/DS219/AB/R, adopted 18 August 2003, DSR 2003:VI, p. 2613
EC – Tube or Pipe Fittings Panel Report, European Communities – Anti-Dumping Duties on
Malleable Cast Iron Tube or Pipe Fittings from Brazil, WT/DS219/R,
adopted 18 August 2003, as modified by Appellate Body Report
WT/DS219/AB/R, DSR 2003:VII, p. 2701
Egypt – Steel Rebar Panel Report, Egypt – Definitive Anti-Dumping Measures on Steel
Rebar from Turkey, WT/DS211/R, adopted 1 October 2002,
DSR 2002:VII, p. 2667
EU – Biodiesel
(Argentina)
Appellate Body Report, European Union – Anti-Dumping Measures on
Biodiesel from Argentina, WT/DS473/AB/R and Add.1, adopted
26 October 2016
EU – Footwear (China) Panel Report, European Union – Anti-Dumping Measures on Certain
Footwear from China, WT/DS405/R, adopted 22 February 2012,
DSR 2012:IX, p. 4585
India – Patents (US) Appellate Body Report, India – Patent Protection for Pharmaceutical
and Agricultural Chemical Products, WT/DS50/AB/R, adopted
16 January 1998, DSR 1998:I, p. 9
Korea – Certain Paper Panel Report, Korea – Anti-Dumping Duties on Imports of Certain
Paper from Indonesia, WT/DS312/R, adopted 28 November 2005,
DSR 2005:XXII, p. 10637
Mexico – Corn Syrup
(Article 21.5 – US)
Appellate Body Report, Mexico – Anti-Dumping Investigation of High
Fructose Corn Syrup (HFCS) from the United States – Recourse to
Article 21.5 of the DSU by the United States, WT/DS132/AB/RW,
adopted 21 November 2001, DSR 2001:XIII, p. 6675
Thailand – Cigarettes
(Philippines)
Panel Report, Thailand – Customs and Fiscal Measures on Cigarettes
from the Philippines, WT/DS371/R, adopted 15 July 2011, as modified
by Appellate Body Report WT/DS371/AB/R, DSR 2011:IV, p. 2299
Thailand – H-Beams Appellate Body Report, Thailand – Anti-Dumping Duties on Angles,
Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from
Poland, WT/DS122/AB/R, adopted 5 April 2001, DSR 2001:VII,
p. 2701
US – Anti-Dumping and
Countervailing Duties
(China)
Appellate Body Report, United States – Definitive Anti-Dumping and
Countervailing Duties on Certain Products from China,
WT/DS379/AB/R, adopted 25 March 2011, DSR 2011:V, p. 2869

Short Title Full Case Title and Citation
US – Carbon Steel (India) Appellate Body Report, United States – Countervailing Measures on
Certain Hot-Rolled Carbon Steel Flat Products from India,
WT/DS436/AB/R, adopted 19 December 2014, DSR 2014:V, p. 1727
US – Cotton Yarn Appellate Body Report, United States – Transitional Safeguard
Measure on Combed Cotton Yarn from Pakistan, WT/DS192/AB/R,
adopted 5 November 2001, DSR 2001:XII, p. 6027
US – DRAMS Panel Report, United States – Anti-Dumping Duty on Dynamic
Random Access Memory Semiconductors (DRAMS) of One Megabit or
Above from Korea, WT/DS99/R, adopted 19 March 1999,
DSR 1999:II, p. 521
US – Hot-Rolled Steel Appellate Body Report, United States – Anti-Dumping Measures on
Certain Hot-Rolled Steel Products from Japan, WT/DS184/AB/R,
adopted 23 August 2001, DSR 2001:X, p. 4697
US – Lamb Appellate Body Report, United States – Safeguard Measures on
Imports of Fresh, Chilled or Frozen Lamb Meat from New Zealand and
Australia, WT/DS177/AB/R, WT/DS178/AB/R, adopted 16 May 2001,
DSR 2001:IX, p. 4051
US – Poultry (China) Panel Report, United States – Certain Measures Affecting Imports of
Poultry from China, WT/DS392/R, adopted 25 October 2010,
DSR 2010:V, p. 1909
US – Shrimp (Thailand) /
US – Customs Bond
Directive
Appellate Body Report, United States – Measures Relating to Shrimp
from Thailand / United States – Customs Bond Directive for
Merchandise Subject to Anti-Dumping/Countervailing Duties,
WT/DS343/AB/R / WT/DS345/AB/R, adopted 1 August 2008,
DSR 2008:VII, p. 2385 / DSR 2008:VIII, p. 2773
US – Shrimp II (Viet
Nam)
Appellate Body Report, United States – Anti-Dumping Measures on
Certain Shrimp from Viet Nam, WT/DS429/AB/R, and Corr.1, adopted
22 April 2015
US – Softwood Lumber V Appellate Body Report, United States – Final Dumping Determination
on Softwood Lumber from Canada, WT/DS264/AB/R, adopted 31
August 2004, DSR 2004:V, p. 1875
US – Softwood Lumber V Panel Report, United States – Final Dumping Determination on
Softwood Lumber from Canada, WT/DS264/R, adopted 31 August
2004, as modified by Appellate Body Report WT/DS264/AB/R,
DSR 2004:V, p. 1937
US – Softwood Lumber VI
(Article 21.5 – Canada)
Appellate Body Report, United States – Investigation of the
International Trade Commission in Softwood Lumber from Canada –
Recourse to Article 21.5 of the DSU by Canada, WT/DS277/AB/RW,
adopted 9 May 2006, and Corr.1, DSR 2006:XI, p. 4865
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton,
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, p. 3
US – Steel Safeguards Appellate Body Report, United States – Definitive Safeguard Measures
on Imports of Certain Steel Products, WT/DS248/AB/R,
WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/R,
WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R,
WT/DS259/AB/R, adopted 10 December 2003, DSR 2003:VII, p. 3117
US – Zeroing (EC) Appellate Body Report, United States – Laws, Regulations and
Methodology for Calculating Dumping Margins ("Zeroing"),
WT/DS294/AB/R, adopted 9 May 2006, and Corr.1, DSR 2006:II,
p. 417

Short Title Full Case Title and Citation
US – Zeroing (EC) Panel Report, United States – Laws, Regulations and Methodology for
Calculating Dumping Margins ("Zeroing"), WT/DS294/R, adopted 9
May 2006, as modified by Appellate Body Report WT/DS294/AB/R,
DSR 2006:II, p. 521

APPELLATE BODY

European Union – Anti-Dumping Measures
on Imports of Certain Fatty Alcohols from
Indonesia

Indonesia, Appellant/Appellee
European Union, Other Appellant/Appellee

Korea, Third Participant
United States, Third Participant

AB-2017-1

Appellate Body Division:

Ramírez-Hernández, Presiding Member
Kim, Member
Zhao, Member

1 INTRODUCTION
1.1. Indonesia and the European Union each appeals certain issues of law and legal
interpretations developed in the Panel Report, European Union – Anti-Dumping Measures on
Imports of Certain Fatty Alcohols from Indonesia 1 (Panel Report). The Panel was established on
25 June 2013 to consider a complaint by Indonesia 2 with respect to anti -dumping measures
imposed by the European Union on imports of certain fatty alcohols 3 from Indonesia4, and certain
aspects of the anti-dumping investigation underlying those measures.5
1.2. Additional factual aspects of this dispute are set forth in the Panel Report6, and in subsequent
sections of this Report.7
1.3. Following consultation with the parties, the Panel adopted its Working Procedures, tog ether
with Additional Working Procedures Concerning Business Confid ential Information (Panel's
BCI Procedures), on 13 July 2015.8
1.4. Before the Panel, Indonesia claimed that the European Union acted inconsistently with
several provisions of the Agreement on I mplementation of Article VI of the General Agreement on
Tariffs and Trade 1994 (Anti -Dumping Agreement). Specifically, Indonesia claimed that the
European Union acted inconsistently with: (i) Articles 2.3 and 2.4 of the Anti -Dumping Agreement
because the European Union made an improper adjustment to the export price of an
Indonesian producer for a factor that did not affect price comparability; (ii) Articles 3.1 and 3.5 of
the Anti -Dumping Agreement because the European Union failed to conduct a proper
non-attribution analysis with respect to two relevant factors – namely, the "financial/economic
crisis" and "issues related to the European Union's domestic industry's access to raw materials";

1 WT/DS442/R, 16 December 2016.
2 Request for the Establishment of a Panel by Indonesia, WT/DS442/2.
3 Fatty alcohols are intermediary products produced from natural or synthetic sources, such as natural
fats and oils, crude oil, natural gas, natural gas liquids, and coal. Fatty alcohols are mainly used as inputs for
the production of surfactants, which are used to produce detergents and household, cleaning, and personal
care products. (See Commission Regulation (EU) No. 446/2011 of 10 May 2011 imposing a provisional
anti-dumping duty on imports of certain fatty alcohols and their blends originating in India, Indonesia and
Malaysia, Official Journal of the European Union, L Series, No. 122 (11 May 2011), pp. 47-62 (Preliminary
Determination) (Panel Exhibit IDN-3), recital 11; and Indonesia's first written submission to the Panel,
para. 1.2 and fn 1 thereto)
4 Panel Report, para. 2.1 (referring to Council Implementing Regulation (EU) No. 1138/2011 of
8 November 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty
imposed on imports of certain fatty alcohols and their blends originating in India, Indonesia and Malaysia,
Official Journal of the European Union, L Series, No. 293 (11 November 2011) pp. 1-18 (Final Determination)
(Panel Exhibit IDN-4)).
5 Panel Report, paras. 1.3 and 2.1.
6 Panel Report, paras. 2.1-2.2, 7.64-7.71, 7.113-7.114, 7.131-7.136, 7.231, and 7.233.
7 See infra, section 5.1.1 and paragraphs 5.117, 5.169-5.170, 5.212-5.213, and 5.245-5.249.
8 Panel Report, para. 1.7 and Annexes A-1 and A-2.

and (iii) Article 6.7 of the Anti -Dumping Agreement because the E uropean Union failed to disclose
to the investigated Indonesian producers the results of the verification visits.9
1.5. The European Union requested the Panel to reject Indonesia's claims in their entirety. 10 In
addition, on 8 January 2015, the European Union requested the Panel to issue a preliminary ruling
that its authority had lapsed pursuant to Article 12.12 of the Understanding on Rules and
Procedures Governing the Settlement of Disputes (DSU), following an alleged suspension of the
Panel proceedings for mo re than 12 months.11 On 23 November 2015, following its review of the
arguments raised by the parties and third parties, the Panel ruled that its authority had not lapsed
pursuant to Article 12.12 of the DSU. The Panel indicated that this preliminary ruling and the
underlying reasoning of the Panel would form an integral part of its Report.12
1.6. The Panel circulated its Report to Members of the World Trade Organization (WTO) on
16 December 2016. Pursuant to the Panel's BCI Procedures, the Panel redacted certain information
that it considered to be BCI. In its Report, the Panel found that:
a. with respect to the European Union's request for a preliminary ruling:
i. the European Union had not demonstrated sufficiently that the correspondence sent
by the Permanent Mission of Indonesia to the WTO Secretariat on 11 July 2013
constituted a request to suspend the work of the Panel in the sense of Article 12.12
of the DSU13;
ii. the work of the Panel had not been suspended14; and
iii. the authority for the establishment of the Panel had not lapsed15;
b. with respect to Indonesia's claims under Articles 2.3 and 2.4 of the
Anti-Dumping Agreement:
i. Indonesia had not demonstrated that the EU authorities16 acted inconsistently with
Article 2.4 by making an improper deduction for a factor that did n ot affect price
comparability17; and
ii. Indonesia had therefore not demonstrated that the EU authorities consequently
acted inconsistently with Article 2.318;
c. with respect to Indonesia's claims under Articles 3.1 and 3.5 of the
Anti-Dumping Agreement:
i. Indonesia had not demonstrated that the EU authorities acted inconsistently with
Articles 3.1 and 3.5 in their analysis of the "economic crisis" factor19; and
ii. Indonesia had not demonstrated that the EU authorities acted inconsistently with
Articles 3.1 and 3.5 in re spect of the alleged "access to raw materials and price
fluctuations" factor20; and

9 Panel Report, para. 3.1.
10 Panel Report, para. 3.2.
11 Panel Report, para. 7.10.
12 Panel Report, para. 7.13.
16 We understand the Panel and the parties to have used the term "EU authorities" to refer either to the
European Commission, or to the European Council, or both. We do the same in this Report.

d. with respect to Indonesia's claim under Article 6.7 of the Anti -Dumping Agreement, the
EU authorities failed to make available or disclose the "results" of the on-the-spot
investigations to the Indonesian producer, PT Perindustrian dan Perdagangan Musim
Semi Mas (PT Musim Mas), and therefore acted inconsistently with Article 6.7.21
1.7. Pursuant to Article 19.1 of the DSU, the Panel recommended that the European Union bring
its measures into conformity with its obligations under the Anti-Dumping Agreement.22
1.8. On 10 February 2017, Indonesia notified the Dispute Settlement Body (DSB), pursuant to
Articles 16.4 and 17 of the DSU, of its intention to appeal certain issues of law covered i n the
Panel Report and certain legal interpretations developed by the Panel and filed a Notice of Appeal23
and an appellant's submission pursuant to Rule 20 and Rule 21, respectively, of the Working
Procedures for Appellate Review 24 (Working Procedures). On 15 February 2017 , the
European Union notified the DSB, pursuant to Articles 16.4 and 17 of the DSU, of its intention to
appeal certain issues of law covered in the Panel Report and certain legal interpretations developed
by the Panel and filed a Notice of Other Appeal25 and an other appellant's submission pursuant to
Rule 23 of the Working Procedures. On 28 February 2017, the European Union and Indonesia each
filed an appellee's submission. 26 On 3 March 2017, the United States filed a third participant's
submission.27 On 16 June 2017, Korea notified its intention to appear at the oral hearing as a
third participant.28
1.9. On 15 February 2017, Indonesia requested authorization, pursuant to Rule 18(5) of the
Working Procedures, to correct a clerical error in its N otice of Appeal. In accordance with
Rule 18(5), the Appellate Body Division hearing this appeal provided the European Union and the
third parties with an opportunity to comment in writing on the request. No objections to
Indonesia's request were received. On 20 February 2017, the Division authorized Indonesia to
correct the clerical error in its Notice of Appeal.29
1.10. On 11 April 2017, the Chair of the Appellate Body notified the Chair of the DSB that the
Appellate Body would not be able to circulate its Report within the 60 -day period pursuant to
Article 17.5 of the DSU, or within the 90-day period pursuant to the same provision.30 The Chair of
the Appellate Body explained that this was due to a number of factors , including the substantial
workload of the Appell ate Body, scheduling difficulties arising from appellate proceedings running
in parallel with an overlap in the composition of the Divisions hearing the appeals, the demands
that these concurrent appeals place on the WTO Secretariat's translation services, and a shortage
of staff in the Appellate Body Secretariat. On 7 August 2017, the Chair of the Appellate Body
informed the Chair of the DSB that the Appellate Body Report in these pro ceedings would be
circulated no later than 5 September 2017.31
1.11. On 17 February 2017, Indonesia requested the Appellate Body Division hearing this appeal
to adopt specific modalities for the treatment of certain information designated as business
confidential information (BCI). Indonesia expressed the view that the requested modal ities are
provided for under Article 18.2 of the DSU . On 23 February 2017, the European Union indicated

22 Panel Report, para. 8.3.
23 WT/DS442/5.
24 WT/AB/WP/6, 16 August 2010.
25 WT/DS442/6.
26 Pursuant to Rules 22 and 23(4), respectively, of the Working Procedures.
27 Pursuant to Rule 24(1) of the Working Procedures.
28 Korea submitted its delegation list for the oral hearing to the Appellate Body Secretariat and the
participants and third participants in this dispute. For purposes of this appeal, we have interpreted Korea's
action to be a notification expressing the intention of Korea to attend the oral hearing pursuant to Rule 24(4)
of the Working Procedures. Having notified the DSB of their interest in the matter before the Panel, pursuant to
Article 10.2 of the DSU, India, Korea, Malaysia, Thailand, Turkey, and the United States reserved their right to
participate as third parties. (Panel Report, para. 1.6) India, Malaysia, Turkey, and Thailand are not
third participants in these appellate proceedings as none of them filed a written submission pursuant to
Rule 24(1) of the Working Procedures or appeared at the oral hearing.
29 WT/DS442/5/Corr.1, in English and Spanish only. The corrected version of Indonesia's Notice of
Appeal is contained in Annex A-1 of the Addendum to this Report, WT/DS442/AB/R/Add.1.
30 WT/DS442/7.
31 WT/DS442/8.

that it shared Indonesia's understanding of Article 18.2 of the DSU. On 16 March 2017, the
Division informed the participants that it did not share the ir understanding of Article 18.2 of the
DSU. The Division explained that, to the extent that the participants in this appeal wanted the
Division to undertake specific procedural steps not expressly contemplated under the DSU or the
Working Procedures, then the participants needed to request the specific treatment sought and
explain why the information in question warranted special and additional protection.32
1.12. On 11 May 2017, Indonesia addressed a letter to the Division, making two requests.
First, Indonesia requested the Division to adopt, pursuant to Rule 16(1) of the Working
Procedures, additional procedures for the protection of BCI in these appellate proceedings.
Second, Indonesia requested leave to modify the executive summary of its appellant's submissi on
by replacing the information enclosed within double brackets in paragraph 7.9 of that executive
summary with non -confidential information. On 12 May 2017, the Division invited the
European Union and the third participants to comment on Indonesia's lette r. No objections to
Indonesia's requests were received.
1.13. On 13 June 2017, the Division issued a Procedural Ruling informing the participants of its
decision to accord additional protection, on specified terms, to the following information in these
appellate proceedings: (i) the information marked by the participants as BCI and enclosed within
double brackets in their submissions to the Appellate Body; and (ii) the information designated by
the Panel as BCI in its Report and in the Panel record. Second, pursu ant to Rules 16(1) and 18(5)
of the Working Procedures, the Division accepted Indonesia's request for leave to amend the
executive summary of its appellant's submission.33
1.14. The oral hearing in this appeal was held on 19 -20 June 2 017. The participants and
third participants made oral statements and responded to questions posed by the Division.
1.15. On 30 June 2017, the participants and third participants were informed that, in accordance
with Rule 15 of the Working Procedures, the Appellate Body had notified the Chair of the DSB of its
decision to authorize Appellate Body Member Mr Ricardo Ramírez -Hernández to complete the
disposition of this appeal, even though his second term of office was due to expire before the
completion of the appellate proceedings.
2 ARGUMENTS OF THE PARTICIPANTS
2.1. The claims and arguments of the participants are reflected in the ex ecutive summaries of
their written submissions provided to the Appellate Body.34 The Notices of Appeal and
Other Appeal, and the executive summaries of the participants' claims and arguments, are
contained in Annexes A and B of the Addendum to this Report, WT/DS442/AB/R/Add.1.
3 ARGUMENTS OF THE UNITED STATES AS A THIRD PARTICIPANT
3.1. The arguments of the United States are reflected in the executive summary of its written
submission provided to the Appellate Body35, contained in Annex C of the Addendum to this
Report, WT/DS442/AB/R/Add.1.

32 Additional details regarding the Division's letter of 16 March 2017 are reflected in the Procedural
Ruling of 13 June 2017 contained in Annex D of the Addendum to this Report, WT/DS442/AB/R/Add.1.
33 The Procedural Ruling of 13 June 2017 is contained in Annex D of the Addendum to this Report,

34 Pursuant to the Appellate Body's communication on "Executive Summaries of Written Submissions in
Appellate Proceedings" and "Guidelines in Respect of Executive Summaries of Written Submissions in
Appellate Proceedings" (WT/AB/23, 11 March 2015). The corrected version of the executive summary of
Indonesia's appellant's submission is contained in Annex B-1 of the Addendum to this Report,

35 Pursuant to the Appellate Body's communication on "Executive Summaries of Written Submissions in
Appellate Proceedings" and "Guidelines in Respect of Executive Summaries of Written Submissions in
Appellate Proceedings" (WT/AB/23, 11 March 2015).

4 ISSUES RAISED IN THIS APPEAL
4.1. The following issues are raised in this appeal:
a. whether the Panel erred in its interpretation and application of Article 2.4 of the
Anti-Dumping Agreement, and acted inconsistently with Article 11 of the DSU and
Article 17.6(i) of the Anti -Dumping Agreement, in finding that Indon esia had not
demonstrated that the EU authorities made an improper deduction for a factor that did
not affect price comparability (raised by Indonesia);
b. whether the Panel erred in its interpretation and application of Article 6.7 of the
Anti-Dumping Agreement in finding that the EU authorities failed to make available or
disclose the results of the on -the-spot investigations to PT Musim Mas, and that the
European Union therefore acted inconsistently with Article 6.7 (raised by the
European Union);
c. whether, in appealing the Panel Report concerning an expired measure, Indonesia acted
inconsistently with the provisions of Article 3 of the DSU, and whether the
Appellate Body should, for this reason, find it unnecessary to rule on the claims raised
on appeal by Indonesia (raised by the European Union);
d. whether the Panel acted inconsistently with Articles 19 and 11 of the DSU in making a
recommendation with respect to an expired measure (raised by the European Union);
e. whether the Panel erred , and failed to make an objective assessment of the matter
under Article 11 of the DSU, in finding that the authority for the establishment of the
Panel had not lapsed pursuant to Article 12.12 of the DSU (raised by the
European Union); and
f. whether the Panel erroneously treated certain information as BCI, and consequently
erred by redacting that information from five paragraphs of the Panel Report (raised by
the European Union).
5 ANALYSIS OF THE APPELLATE BODY
5.1 Indonesia's claims of error regar ding the Panel's findings under Article 2.4 of the
Anti-Dumping Agreement
5.1. Indonesia appeals the Panel's finding that Indonesia had not demonstrated that the
EU authorities acted inconsistently with Article 2.4 of the Anti -Dumping Agreement by making an
improper deduction for a factor that did not affect price comparability. 36 Indonesia contends that
the Panel erred in its interpretation and application of Article 2.4 in assessing whether the
EU authorities' downward adjustment to PT Musim Mas' export price w as proper. Indonesia also
argues that the Panel acted inconsistently with Article 17.6(i) of the Anti-Dumping Agreement and
Article 11 of the DSU in its analysis of Indonesia's claim under Article 2.4 of the
Anti-Dumping Agreement.37 Consequently, Indonesia requests us to reverse the Panel's conclusion
under Article 2.4 of the Anti -Dumping Agreement.38 Indonesia also requests us to complete the
legal analysis and find that the EU authorities acted inconsistently with Article 2.4 by applying an
incorrect legal standard in their decision to make a downward adjustment to PT Musim Mas' export
price.39
5.2. Before commencing our analysis of the issues raised on appeal, we provide an overview of
the relevant aspects of the EU authorities' anti -dumping investigation and the specific

36 Indonesia's appellant's submission, para. 6.1 (referring to Panel Report, paras. 7.160 and 8.1.b.i).
37 In its Notice of Appeal and appellant's submission, Indonesia contended that the Panel also acted
inconsistently with Article 17.6(ii) of the Anti-Dumping Agreement. However, at the oral hearing, Indonesia
clarified that its claim regarding the standard of review applied by the Panel was limited to Article 17.6(i) of the
Anti-Dumping Agreement and Article 11 of the DSU.
38 Panel Report, paras. 7.160 and 8.1.b.i.
39 Indonesia's appellant's submission, para. 6.3.

anti-dumping measure at issue in this dispute. We also include a summary of the relevant Panel
findings.
5.1.1 Background and the measure at issue
5.3. On 13 August 2010, the EU authorities initiated an anti -dumping investigation concerning
imports of certain fatty alcohols and their blends originating in India, Indonesia, and Malaysia.40
5.4. In their Preliminary Determination41, the EU authorities indicated that they had compared the
normal value s and export price s of the exporting producers on an ex -works basis . The
EU authorities also indicated that they had made due allowances in the form of adjustments for
differences affecting prices and price comparability in accordance wit h Article 2(10) of the
EU Basic Anti-Dumping Regulation.42 Where applicable and justif ied, adjustments had been made
for differences in indirect taxes, transport, insurance, handling, loading and ancillary costs, packing
costs, credit costs, and commissions.43
5.5. The adjustment made for commissions related to, inter alia, payments by one of the
investigated Indonesian producers, PT Musim Mas, to Inter -Continental Oils & Fats Pte Ltd
(Singapore) (ICOF-S), a related trading company based in Singapore. Specifically, the
EU authorities established that PT Musim Mas paid ICOF-S a mark-up for sales made by ICOF-S on
behalf of PT Musim Mas to customers in the European Union.44 The EU authorities found that the
mark-up paid by PT Musim Mas to ICOF-S represented a payment for a service for which there was
no corresponding pricing component on the domest ic side.45 The EU authorities thus characterized
this mark-up as a commission paid in respect of export sales to the European Union, and treated it
as a difference affecting price comparability for which a downward adjustment to the export price
was warrant ed.46 The EU authorities made this adjustment of their own volition and not at the
request of any of the interested parties in the investigation.47
5.6. In their Preliminary Determination, the EU authorities imposed provisional anti -dumping
duties on imports of fatty alcohols from, inter alia, the two investigated Indonesian exporters,
PT Musim Mas and PT Ecogreen Oleochemicals (Ecogreen). The provisional anti -dumping duty
rates imposed on PT Musim Mas and Ecogreen were 4.3% and 6.3%, respectively.48
5.7. In commenting on the Preliminary Determination, PT Musim Mas argued that the
EU authorities wrongly made a downward adjustment to the export price for a difference in
commission in contravention of Article 2(10)(i) of the EU Basic Anti -Dumping Regulation. 49
According to PT Musim Mas, the EU authorities failed to carry out a reasoned assessment of the
functions of ICOF-S and PT Musim Mas to ascertain whether "they are a single economic entity". 50

40 European Commission, Notice of initiation of an anti-dumping proceeding concerning imports of
certain fatty alcohols and their blends originating in India, Indonesia and Malaysia, Official Journal of the
European Union, C Series, No. 219 (13 August 2010), pp. 12-16 (Panel Exhibit IDN-12).
41 Panel Exhibit IDN-3 (see supra, fn 3).
42 Council Regulation (EC) No. 1225/2009 of 30 November 2009 on protection against dumped imports
from countries not members of the European Community, published in Official Journal of the European Union,
L Series, No. 343 (22 December 2009), p. 51 ff (EU Basic Anti-Dumping Regulation) (Panel Exhibit EU-3).
43 Panel Report, para. 7.64 (referring to Preliminary Determination (Panel Exhibit IDN-3), recitals 20-21
and 37-38).
44 Panel Report, para. 7.63 (referring to the Provisional Company-Specific Disclosure to PT Musim Mas,
Annex 2: Calculation of dumping margin (Panel Exhibit IDN-33 (BCI)), p. 4).
45 Panel Report, para. 7.84.
46 Panel Report, para. 7.63 (referring to Preliminary Determination (Panel Exhibit IDN-3), recital 38).
As the Panel explained, the EU authorities used the terms "commission" and "mark-up" to denote the amount
referred to in the Sale and Purchase Agreement between ICOF-S and PT Musim Mas as the "ICOF Margin".
(Ibid., fn 218 thereto)
47 Panel Report, para. 7.61 and fn 213 thereto.
48 Preliminary Determination (Panel Exhibit IDN-3), recitals 128-129.
49 Article 2(10) of the EU Basic Anti-Dumping Regulation governs the adjustments that the
EU authorities are to make to account for differences affecting price comparability. (See infra, para. 5.55. )
50 Panel Report, para. 7.66 (quoting PT Musim Mas comments on the Preliminary Determination,
10 June 2011 (Panel Exhibit IDN-34 (BCI)), p. 3). In particular, PT Musim Mas contended that ICOF-S and
PT Musim Mas form a "single economic entity" because ICOF-S is "merely the sales department of [PT Musim
Mas]", which in turn suggested that no adjustment should have been made. (Ibid., para. 7.67 (quoting

Further, even accepting that the downward adjust ment to the export price for the alleged
differences in commissions was warranted, PT Musim Mas argued that the EU authorities failed to
make a corresponding adjustment to the normal value given that ICOF -S "carries out exactly the
same functions for domestic sales as for export sales".51
5.8. In their Final Determination52, the EU authorities rejected the argument that no adjustment
should have been made. The EU authorities instead reiterated their view that , in respect of certain
of PT Musim Mas' export sales, ICOF-S performs "functions which are similar to those of an agent
working on a commission basis". 53 The EU authorities based this conclusion on: (i) the
"commission mentioned in a contract covering export sales only"; (ii) the fact that "domestic sales,
as well as some export sales to third countries, are invoiced directly by [PT Musim Mas] in
Indonesia" in contrast to the "specific commission" received by ICOF -S for export sales that it
handles on behalf of PT Musim Mas 54; and (iii) the fact that ICOF -S also sells products
manufactured by unrelated producers.55 The EU authorities also rejected PT Musim Mas' claim that
ICOF-S is involved in PT Musim Mas' sales in Indonesia and that, therefore, a corresponding
adjustment should have been made to the normal value.56
5.9. Consequently, the EU authorities decided to impose definitive anti -dumping duties in respect
of imports of fatty alcohols from, inter alia, PT Musim Mas and Ecogreen. 57 The definitive
anti-dumping duty rates imposed on PT Musim Mas and Ecogreen were 4.2% and
7.3%, respectively.58
5.10. On 20 January 2012, PT Musim Mas filed an action in the European Union's General Court
(General Court) for annulment of the anti -dumping duty. In particular, PT Musim Mas challenged
the downward adjustment made to its export price for the mark -up paid to ICOF -S.59 Ecogreen
filed a similar action for annulment before the General Court on 21 January 2012.60
5.11. Separately, on 10 March 2009, in unrelated proceedings (Interpipe v. Council of the
European Communities61), the Court of First Ins tance of the European Union found in favour of
exporters of steel tubes contesting an analogous adjustment that had been made by the
EU authorities for commissions paid by an exporter (Interpipe NTRP VAT) to its related trader. 62
This judgment was confirmed on appeal by the Court of Justice on 16 February 2012 (Interpipe
Judgment63), less than a month after the filing of Ecogreen's and PT Musim Mas' actions for

PT Musim Mas comments on the Preliminary Determination, 10 June 2011 (Panel Exhibit IDN-34 (BCI)),
p. 14))
51 Panel Report, para. 7.66 (quoting PT Musim Mas comments on the Preliminary Determination,
10 June 2011 (Panel Exhibit IDN-34 (BCI)), p. 19).
52 Panel Exhibit IDN-4 (see supra, fn 4).
53 Panel Report, para. 7.68 (quoting Final Determination (Panel Exhibit IDN-4), recital 31).
54 Panel Report, para. 7.68 (quoting Final Determination (Panel Exhibit IDN-4), recital 31). The
EU authorities considered that the direct sales made by PT Musim Mas were "structural" and "permanent", as
opposed to being an anomaly. (Ibid., para. 7.69 (quoting Final Determination (Panel Exhibit IDN-4),
recital 33))
55 Panel Report, para. 7.68 (referring to Final Determination (Panel Exhibit IDN-4), recitals 31-33).
56 Panel Report, para. 7.69 (referring to Final Determination (Panel Exhibit IDN-4), recital 35).
57 Panel Report, para. 2.1.
58 See European Commission, General Disclosure Document dated 26 August 2011, AD563, Proposal to
impose definitive anti-dumping duties on imports of certain fatty alcohols and their blends originating in India,
Indonesia and Malaysia (General Disclosure Document) (Panel Exhibit IDN-39), para. 124; and Final
Determination (Panel Exhibit IDN-4), recital 132.
59 Panel Report, para. 7.133 (referring to the General Court (seventh Chamber), Judgment of 25 June
2015, in Case T-26/12, PT Perindustrian dan Perdagangan Musim Semi Mas (PT Musim Mas) v. Council of the
European Union, ECLI:EU:T:2015:437 (PT Musim Mas Judgment) (Panel Exhibit EU-4)).
60 Panel Report, para. 7.133 (referring to General Court, Case T-28/12, PT Ecogreen Oleochemicals and
Others v. Council of the European Union (2013)).
61 Court of First Instance of the European Union, Case T-249/06, Interpipe Niko Tube and Interpipe
NTRP v. Council of the European Union [2009] ECR II.
62 Panel Report, para. 7.134.
63 Panel Report, para. 7.134 (referring to Court of Justice, Judgment of 16 February 2012 in joined
Cases C-191/09 P and C-200/09 P, Council of the European Union (C-191/09 P) / European Commission
(C-200/09 P) v. Interpipe Nikopolsky Seamless Tubes Plant Niko Tube ZAT (Interpipe Niko Tube ZAT) and
Interpipe Nizhnedneprovsky Tube Rolling Plant VAT (Interpipe NTRP VAT) (concerning Judgment of the Court of

annulment in their cases before the General Court. Following the confirmation of the Interpipe
Judgment on appeal, the EU authorities decided to reassess their conclusions concerning the
impugned allowances in the fatty alcohols investigation.64
5.12. In their Revised Determination 65, the EU authorities found that the adjustment made,
pursuant to Article 2(10)(i) of the EU Basic Anti -Dumping Regulation, for the commission paid by
Ecogreen to its related trading company was not warranted. The EU authorities recalculated the
dumping margin established for Ecogreen, found it to be de minimis, and therefore terminated the
anti-dumping duty applicable to Ecogreen . However, with respect to PT Musim Mas, the
EU authorities maintained their view that the functions of ICOF -S were similar to those of "an
agent working on a commission basis" and therefore considered that th e adjustment made for the
mark-up was still justified. 66 In sum, the Revised Determination eliminated the anti-dumping duty
applicable to Ecogreen and confirmed the duty applicable to PT Musim Mas.67
5.13. On 25 June 2015, the General Court rejected the action for annulment introduced by
PT Musim Mas, ruling that the EU authorities had not erred in finding that ICOF -S had functions
similar to those of "an agent working on a commission basis". The General Court also found that
the EU authorities had not breached the principle of equality and non -discrimination in
distinguishing PT Musim Mas' situation from that of Ecogreen as regards the application of
Article 2(10)(i) of the EU Basic Anti-Dumping Regulation.68
5.1.2 The Panel's findings
5.14. Before the Panel, Indonesia claimed that the EU authorities acted inconsistently with
Articles 2.3 and 2.4 of the Anti-Dumping Agreement by making an improper allowance for a factor
that did not affect price comparability. 69 Indonesia emphasized that its main contention was that
the EU authorities should not have made any adjustment to the export price in relation to the
mark-up, and not that the EU authorities erred "because the amount of the adjustment was
improper".70 On this basis, the Panel observed that the amount of the allowance was not at issue
in this dispute.71
5.15. The Panel considered the principal question before it to be whether the EU authorities had
correctly characterized the mark -up that PT Musim Mas paid to ICOF -S as a difference affect ing
price comparability within the meaning of Article 2.4 of the Anti -Dumping Agreement. The Panel
first set out its understanding of the legal standard under Article 2.4.72 The Panel then reviewed
the EU authorities' explanation and relevant record evidence with a view to determining whether
an unbiased and objective investigating authority could have treated the mark -up as a difference
affecting price comparability.73 Thereafter, the Panel addressed each of the three lines of argument
put forward by Indonesia , namely: (i) that the EU authorities mischaracterized the mark -up as a
commission, instead of an internal transfer of funds within a "single economic entity", and that this
existence of a single economic entity precluded the EU authorities from making an allowance for

First Instance of the European Union, Case T-249/06, Interpipe Niko Tube ZAT and Interpipe NTRP VAT v.
Council of the European Union [2009] ECR II-383) (Interpipe Judgment) (Panel Exhibit IDN-49)).
64 Panel Report, para. 7.134.
65 Council Implementing Regulation (EU) No. 1241/2012 of 11 December 2012 amending Implementing
Regulation (EU) No. 1138/2011 imposing a definitive anti-dumping duty and collecting definitively the
provisional duty imposed on imports of certain fatty alcohols and their blends originating in India, Indonesia
and Malaysia, Official Journal of the European Union, L Series, No. 352 (21 December 2012), pp. 1-5 (Revised
Determination) (Panel Exhibit IDN-5).
66 Panel Report, para. 7.135 (referring to Revised Determination (Panel Exhibit IDN-5), recital 12).
67 Panel Report, para. 2.2.
68 Panel Report, para. 7.136. (See also PT Musim Mas Judgment (Panel Exhibit EU-4), paras. 136-137)
Five years after the imposition of the definitive duties, the EU authorities published a notice of expiry indicating
that the anti-dumping measures prescribed by the Final Determination would expire at midnight on
12 November 2016. (European Commission, Notice of the expiry of certain anti-dumping measures, Official
Journal of the European Union, C Series, No. 418 (12 November 2016), p. 3; and section 5.3 of this Report)
69 Panel Report, para. 7.30 (referring to Indonesia's second written submission to the Panel, para. 5.1).
70 Panel Report, para. 6.10 (quoting Indonesia's request for review of the Panel's interim report,
para. 2.4).
71 Panel Report, paras. 6.10-6.12, 6.83-6.85, 7.38, and 7.123.
72 Panel Report, paras. 7.55-7.61.
73 Panel Report, paras. 7.63-7.98.

the mark-up74; (ii) that the do wnward adjustment made by the EU authorities to PT Musim Mas'
export price created an asymmetry between the ex -factory export price and the normal value 75;
and (iii) that the EU authorities failed to provide a reasoned and adequate explanation for
eventually treating the two Indonesian exporting producers (PT Musim Mas and Ecogreen)
differently in relation to the mark-up received by their respective related traders.76
5.16. Having addressed, and rejected, the three grounds on which Indonesia based its claim
under A rticle 2.4 of the Anti -Dumping Agreement, the Panel concluded that Indonesia had not
demonstrated that the EU authorities acted inconsistently with th is provision by making an
improper deduction for a factor that did not affect price comparability. In addi tion, since
Indonesia's claim under Article 2.3 of the Anti-Dumping Agreement was consequential to a finding
of inconsistency with Article 2.4, the Panel concluded that Indonesia had not demonstrated that
the EU authorities acted inconsistently with Article 2.3.77
5.17. Indonesia appeals certain aspects of the Panel's interpretation, analysis, and intermediate
findings relating to Indonesia's claim under Article 2.4 of the Anti -Dumping Agreement.78
Indonesia challenges the Panel's interpretation of Article 2.4. In particular, Indonesia takes issue
with the Panel's rejection of Indonesia's argument that the existence of what Indonesia refers to
as a "single economic entity" 79 is dispositive of whether a given mark -up qualifies as a difference
affecting price comparabi lity under Article 2.4.80 In addition, Indonesia contends that the Panel
erred in its application of Article 2.4, and acted inconsistently with Article 17.6(i) of the
Anti-Dumping Agreement and Article 11 of the DSU, in its review of the EU authorities' evaluation
of the relationship between PT Musim Mas and ICOF-S, as well as their treatment of the mark -up.
We address each of Indonesia's grounds of appeal in turn.
5.1.3 Interpretation of Article 2.4
5.18. Indonesia's appeal calls for us to consider certain issues rela ting to the interpretation of
Article 2.4 of the Anti -Dumping Agreement, particularly the third sentence of th is provision. We
begin by setting out our understanding of Article 2.4, before examining the specifics of Indonesia's
challenge to the Panel's interpretation of this provision.
5.19. Article 2.4 and footnote 7 of the Anti-Dumping Agreement state:
A fair comparison shall be made between the export price and the normal value. This
comparison shall be made at the same level of trade, normally at the ex -factory level,
and in respect of sales made at as nearly as possible the same time. Due allowance
shall be made in each case, on its merits, for differences which affect price
comparability, including differences in conditions and terms of sale, taxation, level s of
trade, quantities, physical characteristics, and any other differences which are also
demonstrated to affect price comparability. 7 In the cases referred to in paragraph 3,
allowances for costs, including duties and taxes, incurred between importation and
resale, and for profits accruing, should also be made. If in these cases price
comparability has been affected, the authorities sha ll establish the normal value at a
level of trade equivalent to the level of trade of the constructed export price, or shall
make due allowance as warranted under this paragraph. The authorities shall indicate

74 Panel Report, paras. 7.99-7.111.
75 Panel Report, paras. 7.112-7.130.
76 Panel Report, paras. 7.131-7.159.
77 Panel Report, paras. 7.160-7.161.
78 Indonesia's appeal is limited to the Panel's findings under Article 2.4, and does not address the
Panel's consequential finding under Article 2.3 of the Anti-Dumping Agreement. In addition, Indonesia does not
appeal the Panel's rejection of Indonesia's argument that the EU authorities failed to provide a reasoned and
adequate explanation for eventually treating PT Musim Mas and Ecogreen differently in relation to the
mark-ups paid to their respective traders.
79 Before the Panel, and in its appellant's submission, Indonesia interchangeably used the terms "single
economic entity", "very closely related companies", "closely affiliated companies", and "two entities that are
closely intertwined". In response to questioning at the hearing, Indonesia confirmed that it had used these
terms synonymously.
80 Panel Report, paras. 7.103-7.106.

to the parties in question what information is necessary to ensure a fair comparison
and shall not impose an unreasonable burden of proof on those parties.
Anti-Dumping Duties, para. 7.235.
86 Appellate Body Report, US – Zeroing (EC), para. 157.
87 Appellate Body Report, US – Zeroing (EC), paras. 156-157.
88 Appellate Body Report, US – Hot-Rolled Steel, para. 176.
89 Appellate Body Report, US – Zeroing (EC), para. 157.
90 Appellate Body Report, US – Hot-Rolled Steel, para. 177.

5.24. Findings by panels and the Appellate Body in prior disputes illustrate, to an extent, certain
differences that may affect price comparability within the meaning of Article 2.4.91 While
instructive, past disputes do not serve to delineate precise parameters for "differences which affect
price comparability" within the meaning of Article 2.4. To the contrary, the text of Article 2.4
makes clear that "[d]ue allowance shall be made in each case , on its merits ".92 This means that
the need to make due allowance must be ass essed in light of the specific circumstances of each
case.93 Article 2.4 does not exclude a priori "due allowances" being made with respect to any type
of difference, as long as it is a difference affecting price comparability.
5.25. Bearing these considerations in mind, we turn to Indonesia's claim that the Panel erred in
its interpretation of Article 2.4 of the Anti-Dumping Agreement.
5.1.4 Whether the Panel erred in its interpretation of Article 2.4
5.26. Indonesia asserts that "[t]he key question in deciding how to treat revenues and expenses
of entities … is whether the entities are part of the same [single economic entity]."94 This assertion
underlies Indonesia's claim that the Panel erred in its interpretation of Article 2.4 of the
Anti-Dumping Agreement . Indonesia argu es, first, that the Panel erred by articulating a legal
standard that contained no reference to the relevance of a single economic entity. Specifically,
Indonesia asserts that, in its interpretation of Article 2.4, the Panel did not address whether the
existence of a single economic entity or the relationship between parties could affect the
determination of whether a factor affected price comparability, even though Indonesia's arguments
identified that as a key issue. 95 Second, Indonesia contends that the P anel erred in stating that it
was "not convinced that the existence of what Indonesia denotes as a 'single economic entity' is
dispositive of whether a given mark -up qualifies as a difference which affects price comparability
under Article 2.4."96
5.27. The Europ ean Union highlights that Article 2.4 does not contain any textual element
suggesting that the circumstance that a trader and the exporter/producer are related or constitute
a single economic entity plays a decisive role for the purpose of making an adjust ment in order to
ensure a fair comparison.97 The European Union also argues that Indonesia's claims on appeal are
the result of a "manifestly partial and incorrect" reading of the Panel Report and that, for this
reason, they should be rejected.98
5.28. The United States agrees with the Panel that whether an entity constitutes a
single economic entity would not be dispositive of the need for adjustments under Article 2.4 of
the Anti-Dumping Agreement, and that , depending on the underlying facts, transactions between
affiliated entities may impact price comparability.99
5.29. We begin with Indonesia's first line of argument on appeal. Indonesia contends that the
Panel erred because it articulated a legal standard that contained no reference to whether the
existence of a sing le economic entity or the relationship between parties could affect the
determination of whether a factor affected price comparability within the meaning of Article 2.4.100
The Panel structured its analysis of Indonesia's claim under Article 2.4 as follows. After setting out
its understanding of the legal standard under Article 2.4101, the Panel reviewed whether the
EU authorities' explanations revealed a sufficient evidentiary basis for treating the mark -up in

91 See e.g. Appellate Body Report, US – Hot-Rolled Steel, para. 168; and Panel Reports, Korea – Certain
92 Emphasis added.
93 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.87. See also Appellate Body Report, US –
Hot-Rolled Steel, para. 179.
94 Indonesia's appellant's submission, para. 3.114.
95 Indonesia's appellant's submission, paras. 2.54 and 3.91 (quoting Panel Report, para. 7.103
(fns omitted); and referring to paras. 7.54-7.62).
96 Indonesia's appellant's submission, para. 3.110 (referring to Panel Report, paras. 7.102-7.107).
97 European Union's appellee's submission, para. 93 (quoting Appellate Body Report, India –
Patents (US), para. 45).
98 European Union's appellee's submission, paras. 111 and 139.
99 United States' third participant's submission, para. 8.
100 Indonesia's appellant's submission, para. 3.91 (referring to Panel Report, paras. 7.54-7.62).
101 Panel Report, paras. 7.55-7.61.

question as a difference which affects price compa rability.102 Next, the Panel specifically and
separately addressed each of Indonesia's arguments, namely: (i) that the existence of a
single economic entity precluded the EU authorities from making an allowance for the mark -up103;
(ii) that the allowance resulted in an asymmetrical comparison with the normal value 104; and
(iii) that the different outcomes for the two Indonesian pr oducers demonstrate that the
EU authorities' analysis was arbitrary.105
5.30. In setting out its "understanding of the legal standard unde r Article 2.4 as relevant to the
claim and arguments before [it]" 106, the Panel focused on the terms of the treaty as explicitly
spelled out in Article 2.4. The Panel's understanding of Article 2.4107 is consonant with our
interpretation of the provision as discussed in section 5.1.3 above.
5.31. The text of Article 2.4 does not contain the words "single economic entity", nor does it
contain any explicit refer ence to affiliations or relationships between different entities. 108
Accordingly, we do not consider it problematic that, in setting out its understanding of Article 2.4,
the Panel focused on the terms of the treaty and did not refer, in the abstract, to the relevance of
the relationship between entities.
5.32. We also note that, in focusing on the terms of the treaty, the Panel highlighted that the list
of factors that could potentially affect price comparability, in the third sentence of Article 2.4, is an
illustrative list, not an exhaustive list. The Panel also referred to the Appellate Body's reasoning
that, given that this list is followed by the phrase "and any other differences which are also
demonstrated to affect price comparability", "[t]here are … no differences 'affect[ing] price
comparability' which are precluded, as such, from being the object of an 'allowance'."109
5.33. Furthermore, we recall that the third sentence of Article 2.4 states that due allowance shall
be made "in each case, on its merits". A rticle 2.4 thus establishes that the need to make due
allowance must be assessed in light of the specific circumstances of each case. 110 It follows that
the existence of a close relationship between transacting companies would be pertinent to the
extent that the relationship affects the relevant transactions in such a way as to affect the
comparability of the export price and the normal value.
5.34. In any event, we observe that the Panel examined Indonesia's assertions regarding the
relevance of a "single economic entity" in a subsequent part of its analysis when it addressed
Indonesia's argument that, in this case, the existence of a single economic entity precluded the
EU authorities from making an allowance for the mark -up. The Panel expressly considered the
question of whether the existence of a single economic entity necessarily means that the payment
of a mark-up between related entities can never affect price comparability.111
5.35. Indonesia advances a second line of argument on appeal. Indonesia asks us to reverse what
Indonesia describes as the Panel's finding that "the relationship between closely affiliated entities,
including a closely affiliated 'downstream participant', is not relevant to the determination of a
price adjustment under Article 2.4 because those entities 'could transact for goods and services at

102 Panel Report, paras. 7.63-7.98.
103 Panel Report, paras. 7.99-7.111.
104 Panel Report, paras. 7.112-7.130.
105 Panel Report, paras. 7.131-7.159.
106 Panel Report, para. 7.54.
107 Panel Report, paras. 7.55-7.61.
108 We note that Article 2.3 of the Anti-Dumping Agreement, which concerns construction of the export
price, recognizes that an "association" between an exporter and another company may be relevant to the
determination of the export price and may make the price paid between these two entities "unreliable". The
fourth and fifth sentences of Article 2.4 identify additional factors that are to be taken into consideration when
the situation contemplated in Article 2.3 arises. However, these provisions are not relevant to the issues raised
in this appeal.
109 Panel Report, para. 7.56 (quoting Appellate Body Report, US – Hot-Rolled Steel, para. 177).
110 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.87.
111 Panel Report, paras. 7.103-7.107.

arm's-length, regardless of how closely intertwined their control and ownership might be'." 112
However, we see no such finding in the Panel Report. Instead, the Panel stated:
We are not convinced that the ex istence of what Indonesia denotes as a "single
economic entity" is dispositive of whether a given mark -up qualifies as a difference
which affects price comparability under Article 2.4. This is because we consider it
possible that two entities could transac t for goods and services at arms -length,
regardless of how closely intertwined their control and ownership might be.113
5.36. Thus, the Panel did not find the relationship between entities to be irrelevant to an
investigating authority's assessment under Article 2.4. The Panel found that such a relationship
was not "dispositive" of whether a given mark -up qualifies as a difference which affects price
comparability under Article 2.4. This is in keeping with the Panel's earlier statement that "[t]here
are … no differences 'affect[ing] price comparability' which are precluded, as such, from being the
object of an 'allowance'." 114 Moreover, the Panel explicitly recogni zed that "it is possible that a
transaction between two entities within what Indonesia denotes as a 'single economic entity' could
reflect an expense that must be recovered and thus would impact price comparability." 115 The
Panel explained that, in its view, the "dividing line" between (a) an internal allocation of funds
within a single economic entity whi ch is not reflected in the producer's pricing decision and (b) an
expense that is linked to either the export side or the domestic side or to both sides but with
different amounts such that price comparability is affected, is dependent on the particular situation
and evidence before the investigating authority in a given case where the proper characterization
of the payment in question is at issue. 116 We do not understand the Panel's reasoning to stand for
the proposition that the nature and degree of affilia tion between related companies are irrelevant
to the issue of whether any allowances should be made in order to ensure a fair comparison
between the normal value and the export price. Rather, we consider that the Panel properly
emphasized the case-specific nature of an investigating authority's assessment under Article 2.4.
5.37. For Indonesia, the Panel erred in stating that it was not convinced that the existence of
what Indonesia denotes as a "single economic entity " is dispositive of whether a given mark -up
qualifies as a difference which affects price comparability under Article 2.4.117 While acknowledging
that Article 2.4 does not specifically refer to the treatment of transactions between affiliated
parties in the calculation of anti -dumping duties, Indonesia nevertheless contends that it is
"axiomatic … that whether transactions take place between closely affiliated or independent parties
is highly relevant for the dumping analysis." 118 Indonesia relies upon the Appellate Body's findings
in US – Hot-Rolled Steel to support its assertion that a price charged by one company within a
"single economic entity" to another within the same entity might not reflect commercial
considerations.119
5.38. The European Union contends that the Appellate Body report in US – Hot-Rolled Steel does
not demonstrate that the affiliation between entities is key to assessing whether or not an
adjustment under Article 2.4 is warranted. For the European Union, that case demonstrates the
contrary because it is an example of when an affiliation or close links between the
producer/exporter and the downstream seller were immaterial to the calculation of the dumping
margin.120
5.39. The Appellate Body's reasoning in US – Hot-Rolled Steel concerned transactions "in the
ordinary course of trade" within the meani ng of Article 2.1 of the Anti-Dumping Agreement, rather
than "due allowances" within the meaning of Article 2.4. Nonetheless, the observations made in
that dispute illustrate the diversity of possible permutations of transactions between related
companies that an investigating authority may encounter in establishing the normal value, or the

114 Panel Report, para. 7.56 (quoting Appellate Body Report, US – Hot-Rolled Steel, para. 177).
115 Panel Report, para. 7.103.
116 Panel Report, paras. 7.105-7.106.
118 Indonesia's appellant's submission, para. 3.17.
119 Indonesia's appellant's submission, paras. 3.18-3.21.
120 European Union's appellee's submission, paras. 68-72.

export price.121 The examples referred to by the Appellate Body in that dispute also illustrate that
there are instances when the affiliation between transacting entities will have an impact on the
dumping analysis, and there are other instances when such affiliation will not have an impact on
the dumping analysis. This is consonant with the requirement in the third sentence of Article 2.4
that investigating author ities make due allowances "in each case, on its merits, for differences
which affect price comparability". A contrario, investigating authorities must not make allowances
for differences that do not affect price comparability.
5.40. Indonesia also invokes the Ap pellate Body 's reference in US – Hot-Rolled Steel to a
"single economic enterprise" in support of its arguments. 122 We understand the Appellate Body to
have used the words "single economic enterprise"123 in its report in that dispute as a short-hand to
describe entities that are legally distinct but share common ownership. The use of these words was
not intended to convey a general legal concept under the Anti -Dumping Agreement in respect of
which certain consequences would automatically follow if a sing le economic enterprise were found
to exist. Instead, the Appellate Body's reasoning in US – Hot-Rolled Steel reinforces our view that
the focus of the investigating authority's assessment is not on the nature of the relationship
between related companies per se, but rather on whether that relationship can be demonstrated to
be a factor that impacts the prices of the relevant transactions.124
5.41. Indonesia draws further support for its argument from the reasoning of the panel in Korea –
Certain Paper and that of t he Appellate Body in EC – Fasteners (China) relating to claims under
Article 6.10 of the Anti -Dumping Agreement.125 According to Indonesia, "[t]he key question is
whether, in the words of the Korea – Certain Paper panel, two entities are in a relationship cl ose
enough to warrant their treatment as a single entity for the purposes of the dumping analysis."126
5.42. The reasoning relied upon by Indonesia in those disputes relates to Article 6.10, rather than
Article 2.4 of the Anti -Dumping Agreement. Article 6.10 requi res investigating authorities "as a
rule" to "determine an individual margin of dumping for each known exporter or producer
concerned of the product under investigation." Given the different wording and functions of
Article 2.4 and Article 6.10, we are not persuaded that the criteria applicable to an investigating
authority's assessment under Article 6.10 are necessarily relevant to th e understanding of
Article 2.4. In any event, unlike Indonesia, we do not read the panel's reasoning in Korea – Certain
Paper or that of the Appellate Body in EC – Fasteners (China) as prescribing uniform treatment of
the transactions between affiliated companies. Instead, the adjudicators' reasoning in those
disputes underscores that whether multiple exporters may be considere d as a single entity for the
purposes of Article 6.10 is dependent on the circumstances of each case.127

121 The Appellate Body provided, as an example, a situation in which the parties to a transaction have
common ownership, noting that, although the parties are legally distinct persons, usual commercial principles
"might not" be respected between them. At the same time, the Appellate Body noted that there may be
instances in which, even where the parties to a sales transaction are entirely independent, a transaction might
not be "in the ordinary course of trade". (Appellate Body Report, US – Hot-Rolled Steel, paras. 141 and 143
and fn 106 thereto)
122 Indonesia's appellant's submission, paras. 2.33-2.35, 3.18, 3.21-3.23, and 3.79.
123 The Appellate Body explained that, instead of a sale between two enterprises that are economically
independent and transacting at market prices, transactions between entities with common ownership might not
reflect market prices when such transactions are "used as a vehicle for transferring resources within the
single economic enterprise." (Appellate Body Report, US – Hot-Rolled Steel, para. 141 (emphasis added))
124 We observe that the concept of a "single economic entity" has legal significance under EU law.
(See PT Musim Mas Judgment (Panel Exhibit EU-4), paras. 43-48)
125 Indonesia's appellant's submission, paras. 3.62-3.68 (quoting Panel Report, Korea – Certain Paper,
paras. 7.161 and 7.165; and referring to Appellate Body Report, EC – Fasteners (China), paras. 358, and
371-374).
126 Indonesia's appellant's submission, fn 111 to para. 3.67.
127 The panel in Korea – Certain Paper emphasized that "whether or not the circumstances of a given
investigation justify" the treatment of multiple exporters as a single exporter for purposes of determination of
the dumping margin "must be determined on the basis of the record of that investigation". (Panel Report,
Korea – Certain Paper, para. 7.161) Similarly, in EC – Fasteners (China), the Appellate Body considered that
assessing whether a single dumping margin and a single anti-dumping duty for a number of exporters is
inconsistent with Article 6.10 will depend on the existence of a number of situations, which would signal that,
albeit legally distinct, two or more exporters are in such a relationship that they should be treated as a single
entity. (Appellate Body Report, EC – Fasteners (China), para. 376)

5.43. At the oral hearing, Indonesia acknowledged that transactions between closely affiliated
companies could be the subject of allowances under Article 2.4, but maintained that the affiliation
between such companies would necessarily influence the investigating authorit ies' calculation of
the amount of the allowance to be made. However, as the European Union highlighted at the oral
hearing, Indonesia repeatedly asserted before the Panel that its main contention was that the
EU authorities should not have made any adjustment to the export price in relati on to the
mark-up, and not that the EU authorities erred "because the amount of the adjustment was
improper".128 Hence, the amount of the allowance is not at issue in this dispute.129
5.44. For all of these reasons, the Panel did not err in setting out its "understa nding of the legal
standard under Article 2.4 as relevant to the claim and arguments before [it]".130 Nor did the Panel
err in stating that it was "not convinced that the existence of what Indonesia denotes as a
'single economic entity' is dispositive of whe ther a given mark -up qualifies as a difference which
affects price comparability under Article 2.4."131 Consequently, we find that Indonesia has not
demonstrated that the Panel erred in its interpretation of Article 2.4 of the Anti -Dumping
Agreement.
5.45. Having so found, we wish to be clear on what we are not saying. We are not ruling , nor do
we consider that the Panel ruled, that the nature and degree of affiliation between related
companies is irrelevant to the issue of whether any allowances should be made in order to ensure
a fair comparison between the normal value and the export price. Nor do we rule, in the abstract,
on the circumstances in which an inquiry into the nature of the relationship between transacting
entities will suffice or be determinative of the issue of whether allowances should be made
pursuant to Article 2.4 of the Anti-Dumping Agreement.
5.1.5 Whether the Panel erred in its application of Article 2.4
5.46. In appealing the Panel's application of Article 2.4 of the Anti-Dumping Agreement, Indonesia
challenges the Panel's review of whether the EU authorities' explanations revealed a sufficient
evidentiary basis for treating the mark -up paid by PT Musim Mas to ICOF -S as a difference
affecting price comparabilit y.132 Indonesia also challenges the Panel's evaluation and rejection of
Indonesia's arguments: (i) that the existence of a single economic entity precluded the
EU authorities from making an allowance for the mark-up133; and (ii) that the allowance resulted in
an asymmetrical comparison with the normal value. 134 Indonesia does not appeal the
Panel's evaluation of the different treatment accorded to Ecogreen and to PT Musim Mas in the
Revised Determination.135
5.47. The European Union requests us to reject Indonesia's argu ments.136 The European Union
submits that all of Indonesia's claims of error are predicated on Indonesia's assertion that "[t]he
key question in deciding how to treat revenues and expenses of entities … is whether the entities
are part of the same [single ec onomic entity ]."137 For the European Union, if we find that this
assertion is not well founded, we should consequently reject all of Indonesia's claims that the
Panel erred in its application of Article 2.4 to the facts of this case. 138 The European Union avers
that Indonesia's claims on appeal are the result of a partial and incorrect reading of the
Panel Report and that, for this reason too, they should be rejected.139
5.48. Indonesia underlines that the relevance of the existence of a "single economic entity" was
the key question to have been addressed by the Panel, and that the Panel failed to address it

128 Panel Report, para. 6.10 (referring to Indonesia's request for review of the Panel's interim report,
para. 2.4).
129 Panel Report, paras. 6.10-6.12, 6.83-6.85, 7.38, and 7.123.
130 Panel Report, paras. 7.54-7.61.
132 Panel Report, paras. 7.63-7.98.
133 Panel Report, paras. 7.99-7.111.
134 Panel Report, paras. 7.112-7.130.
135 Panel Report, paras. 7.131-7.159.
136 European Union's appellee's submission, paras. 105 and 312.
137 Indonesia's appellant's submission, para. 3.114.
138 European Union's appellee's submission, paras. 105-110.
139 European Union's appellee's submission, para. 139.

properly. For example, according to Indonesia, the costs of services performed by entities within a
single economic entity are, for dumping purposes, indirect selling expenses that are included in the
normal value and export price, and may therefore not be deducted from the normal value or
export price.140 Indonesia goes on to state that:
… the Panel fundamentally misconstrued the importance of the question of whether [a
single economic entity] exists. As explained above, this is, very simply, that if money
is paid from outside to an entity within [a single economic entity], that money is
revenue for the [single economic entity] as whole. If an entity transfers money to
another entity within the same [single economic entity], that transfer is not an
expense to the [single economic entity] as a whole. … The key question in deciding
how to treat revenues and expenses of entities, therefore, is whether the entities are
part of the same [single economic entity].141
5.49. These statements, and many more in Indonesia's appellant's submission 142, lend credence
to the European Union's assertion that Indonesia's claims of error are predicated on our
acceptance of Indonesia's view as to the correct interpretation of Article 2.4. As discussed in
section 5.1.4 above, we do not consider that the Panel erred in its interpretation of Articl e 2.4, or
that the existence of a single economic entity is dispositive of whether a given mark-up qualifies as
a difference which affects price comparability under Article 2.4.
5.50. In response to questioning at the hearing, Indonesia identified what it consid ered to be
examples of the independent bases for its claim that the Panel erred in its application of
Article 2.4, beyond its assertion that the Panel articulated and applied an incorrect legal standard
under Article 2.4. Indonesia referred to the Panel's statement that the Panel considered "it possible
that two entities could transact for goods and services at arms -length, regardless of how closely
intertwined their control and ownership might be." 143 According to Indonesia, having made this
statement, the P anel erred by not scrutinizing whether the EU authorities had properly examined
whether the relevant transactions were at arm's length.
5.51. We do not consider this argument by Indonesia to be a distinct challenge to the Panel's
application of Article 2.4. The statement to which Indonesia refers was made by the Panel in the
context of its rejection of Indonesia's argument that a "single economic entity" is dispositive of
whether a given mark-up qualifies as a difference affecting price comparability under Article 2.4.144
The Panel was not espousing a stand -alone criterion under Article 2.4 that was then to be applied
to the facts of this case. Instead, as discussed above, the Panel correctly emphasized that an
inquiry under Article 2.4 is dependent on the particula r situation and evidence before the
investigating authorit ies in a given case. 145 Thus, to the extent that Indonesia's claim that the
Panel erred in its application of Article 2.4 is premised on Indonesia's argument that the existence
of a single economic en tity is dispositive of whether a given mark -up qualifies as a difference
which affects price comparability under Article 2.4, we consider it unnecessary to examine further
these aspects of Indonesia's claim.
5.52. That said, we recall that , in response to questioning at the hearing, Indonesia also pointed
to its argument that the Panel erred by implying that, when confronted with transactions between
closely affiliated parties, an investigating authority may replace the expenses actually inc urred by
those parties with the expenses that would have been incurred had the producing entity obtained
the service from an independent provider.146
5.53. We address below what we consider to be the remaining aspects of Indonesia's claim that
the Panel erred in its application of Article 2.4 of the Anti -Dumping Agreement, namely, that the
Panel erred: (i) in its review of whether the EU authorities' explanations revealed a sufficient

140 Indonesia's appellant's submission, para. 3.83.
141 Indonesia's appellant's submission, para. 3.114.
142 See e.g. Indonesia's appellant's submission, paras. 3.97, 3.115, 3.119, 3.129-3.131, 3.137, 3.148,
3.152, 3.168, and 3.182.
143 Panel Report, para. 7.103.
144 Panel Report, para. 7.103.
145 Panel Report, paras. 7.106-7.107.
146 Indonesia's appellant's submission, para. 3.165 (referring to Panel Report, paras. 7.126-7.130).

evidentiary basis for treating the mark -up paid by PT Musim Mas to ICOF -S as a d ifference
affecting price comparability 147; and (ii) in its evaluation and rejection of Indonesia's argument
that the allowance resulted in an asymmetrical comparison with the normal value, including by
allegedly finding that the investigating authorities may replace the expenses actually incurred by
the exporter with hypothetical expenses.148
5.1.5.1 Whether the Panel erred in its review of the EU authorities' treatment of the
mark-up
5.54. Indonesia challenges the Panel's analysis of whether the EU authorities' explanation s
revealed a sufficient evidentiary basis for treating the mark -up in question as a difference which
affects price comparability.149
5.55. We recall that , in making the downward adjustment to the export price, the EU authorities
acted pursuant to Article 2(10)(i) of the EU Basic Anti-Dumping Regulation, which mandates:
An adjustment shall be made for differences in commissions paid in respect of the
sales under consideration.
The term "commissions" shall be understood to include the mark -up received by a
trader of the product or the like product if the functions of such a trader are similar to
those of an agent working on a commission basis.150
5.56. We also recall that Indonesia has not, in these proceedings, challenged Article 2(10)(i)
"as such" and the Panel did not assess the conformity of Article 2(10)(i) itself with Article 2.4 of
the Anti -Dumping Agreement. Rather, the Panel observed that Article 2.4 does not prescribe a
specific methodology for ensuring a fair comparison. 151 The Panel also underlined that its
evaluation of the EU authorities' approach was to be understood "within the parameters of the
particular investigation at issue in these proceedings".152
5.57. In its evaluation, the Panel observed that the EU authorities' finding that ICOF -S had
"functions … similar to those of an agent working on a commission basis" was based on a number
of considerations. The Panel noted the EU authorities' reliance on PT Musim Mas' direct sales to
domestic and export customers as support for its finding that ICOF -S was not an inter nal sales
department of PT Musim Mas.153 The Panel also took into account the EU authorities' reliance on
the fact that a substantial proportion of ICOF -S' trade was in products of unrelated entities . The
EU authorities had relied on this fact to support their inference that ICOF-S was not dependent to
any significant degree on PT Musim Mas for its revenue stream or the operation of its business. 154
In addition, the Panel considered that the Sale and Purchase Agreement relied upon by the
EU authorities supporte d their view that ICOF -S had "functions … similar to those of an agent
working on a commission basis", rather than Indonesia's characterization of ICOF-S as PT Musim
Mas' closely intertwined internal sales department.155
5.58. Following its review, the Panel concluded:
[T]he EU authorities had a sufficient evidentiary basis … for establishing that the
mark-up was a factor that impacts the prices of the product and that was linked

147 Panel Report, paras. 7.63-7.98.
148 Panel Report, paras. 7.112-7.130.
149 Indonesia's appellant's submission, paras. 3.201-3.213.
150 Panel Exhibit EU-3.
151 Panel Report, para. 7.92 (referring to Appellate Body Reports, US – Zeroing (EC), para. 146; and
US – Softwood Lumber V, para. 175; and Panel Report, China – HP-SSST (EU), para. 7.78; EC – Fasteners
Softwood Lumber V, para. 7.167).
152 Panel Report, para. 7.92.
153 Panel Report, para. 7.93.
154 Panel Report, para. 7.94 (referring to PT Musim Mas Judgment (Panel Exhibit EU-4), para. 54).
155 Panel Report, para. 7.95 (referring to Sale and Purchase Agreement between PT Musim Mas and
Inter-Continental Oils & Fats Pte Ltd (ICOF-S) (1 January 2009) (Panel Exhibit IDN-24 (BCI)), Section 7.3).

exclusively to the export side, therefore constituting a difference which affects pric e
comparability under Article 2.4.156
5.59. In our view, the Panel critically examined the findings by the EU authorities, including the
evidence that the EU authorities identified as the basis for their findings. In particular, the Panel
found that, in examining the role of ICOF-S under the framework of Article 2(10)(i) of the EU Basic
Anti-Dumping Regulation, the EU authorities relied on several evidentiary bases to arrive at their
finding that ICOF-S had functions similar to an agent working on a commission basi s.157 Moreover,
the Panel considered that the EU authorities' explanations corroborated their finding that the
mark-up paid by PT Musim Mas to ICOF -S represented a payment for which there was
no corresponding pricing component on the domestic side. 158 Accordingly, the Panel held that the
EU authorities' explanations supported their finding that the mark -up constituted a difference
affecting price comparability within the meaning of Article 2.4.159
5.60. Hence, in reviewing the EU authorities' evaluation, the Panel correctly focused on whether
that evaluation was consistent with Article 2.4 of the Anti -Dumping Agreement. We therefore
disagree with Indonesia that "the Panel made no effort … to address whether or how the
relationship between closely affiliated entities mig ht affect the determination of price
adjustments."160
5.1.5.2 Whether the Panel erred in its analysis of whether the EU authorities incorrectly
deducted ICOF-S' selling, general and administrative costs and profit
5.61. Indonesia also contends that the Panel erred in its analysis of whether the allowance for the
mark-up resulted in an asymmetrical comparison with the normal value. 161 We recall that the
Panel first addressed and rejected Indonesia's contention that there was an asymmetry between
the ex-factory export price an d the ex -factory normal value established by the EU authorities for
PT Musim Mas. 162 Second, the Panel addressed and rejected Indonesia's argument that the
EU authorities were precluded from deducting an allowance that was calculated based on
ICOF-S' profit and loss statement (P&L) and what the EU authorities considered to be a reasonable
profit margin for the chemical sector. 163 Indonesia appeals both aspects of the Panel's finding.
We summarize the factual background relating to this argument before addressin g Indonesia's
specific challenges to the Panel's finding.
5.62. The Panel observed that the P&L submitted by PT Musim Mas as part of its response to the
EU authorities' anti-dumping questionnaire provided a breakdown of the prices to be compared. 164
Both the expor t price and the normal value included similar allocations of amounts for selling,
general and administrative costs ( SG&A), encompassing identical percentage amounts for
marketing and selling expenses.165 Further, the P&L submitted by PT Musim Mas reflected amounts
of profit pertaining to the product concerned both for PT Musim Mas' domestic sales in Indonesia
and for PT Musim Mas' export sales through ICOF-S that were destined for the European Union.166
5.63. As discussed at paragraph 5.59. above, the EU authorities found that the mark -up paid by
PT Musim Mas to ICOF -S represented a payment for which there was no corresponding pricing
component on the domestic side.167 The EU authorities also found that the mark -up constituted a

156 Panel Report, para. 7.97.
157 Panel Report, para. 7.96.
158 Panel Report, para. 7.93.
159 Panel Report, paras. 7.96-7.97. See also paras. 7.73-7.88.
160 Indonesia's appellant's submission, para. 3.93.
161 Panel Report, paras. 7.112-7.130.
162 Panel Report, para. 7.125.
163 Panel Report, para. 7.130.
164 Panel Report, para. 7.119 (referring to Excel file "PTMM definitive disclosure.xls" (Panel Exhibit EU-12
(BCI)), spreadsheet 2.3 (TABLE G - PL - (Profit and Loss) - of the exporting producer and each related
company), row 45 columns F and G).
165 Panel Report, para. 7.120.
166 Panel Report, para. 7.121 (referring to Excel file "PTMM definitive disclosure.xls" (Panel Exhibit EU-12
(BCI)), spreadsheet 2.3 (TABLE G - PL - (Profit and Loss) - of the exporting producer and each related
company), row 44 columns F and G).
167 Panel Report, paras. 7.84, 7.93, and 7.120.

difference affecting price comparability.168 In establishing the amount of the allowance to be made
in respect of this mark-up, the EU authorities considered that the close ties between PT Musim Mas
and ICOF-S had the potential to affect the reliability of the mark -up of 5% spelled out in their Sale
and Purchase Agreement. 169 Hence, the EU authorities calculated the amount of the mark -up on
the basis of the SG&A reflected in ICOF -S' P&L. 170 To th is, the EU authorities added what they
considered to be a reasonable profit margin for the chemical sector. The EU authorities used the
sum of these two amounts rather than the margin specified in the Sale and Purchase Agreement
between PT Musim Mas and IC OF-S.171 The resulting amount "was actually very close to the
mark-up ICOF -S was entitled to according to the Sale and Purchase Agreement." 172 The
EU authorities then deducted this amount from the export price.173
5.64. On appeal, Indonesia asserts that the EU authorities treated PT Musim Mas and ICOF -S
together as the collective seller of the product for the purpose of assigning a single dumping
margin, pursuant to Article 6.10 of the Anti -Dumping Agreement.174 Indonesia maintains that the
Panel ignored Indonesia's argu ment that , "if ICOF -S and PT Musim Mas form part of" a
single economic entity, then both ICOF-S' and PT Musim Mas' expenses are the expenses of the
single economic entity as a whole, "for whom a dumping margin [is] being calculated". 175
Indonesia's argument appears to recast its principal assertion that the EU authorities should have
characterized the mark -up as an internal transfer of funds within a "single economic entity",
instead of a difference affecting price comparability. 176 We have already addressed an d rejected
this argument above.
5.65. Moreover, we note that Indonesia has not pointed to any evidence on the record supporting
its assertion that the EU authorities treated ICOF -S and PT Musim Mas collectively as a
single entity for purposes of assigning the du mping margin pursuant to Article 6.10 of the
Anti-Dumping Agreement.177 Nor did the Panel "accept Indonesia's conception that the
EU authorities treated ICOF -S and PT Musim Mas as the collective 'seller' of the product for the
purposes of determining the dum ping margin."178 Given that the case before us does not involve
any finding that the EU authorities treated PT Musim Mas and ICOF -S as a single entity for
purposes of assigning the dumping margin, we need not further address Indonesia's argument.
5.66. Indonesia also argues that the Panel erred to the extent that its reasoning implies that,
when confronted with transactions between closely affiliated parties, investigating authorit ies may
replace the expenses actually incurred with the expenses that woul d have been incurred had the
producing entity obtained the service from an independent provider.179
5.67. We recall that the amount of the allowance is not at issue in this dispute. For this reason,
the Panel opined that the mark -up paid by PT Musim Mas to ICOF-S had to be viewed as a whole
and not from the perspective of its constituent elements. The Panel considered it apparent from
the record that the EU authorities only disaggregated the mark -up into the components for SG&A
and profit in order to quantify the proper amount of the adjustment, having already concluded that

168 Panel Report, para. 7.88.
169 Panel Report, para. 7.113.
170 We recall that PT Musim Mas' P&L reflected similar amounts for SG&A and profit for both PT Musim
Mas' domestic sales in Indonesia and for PT Musim Mas' export sales through ICOF-S that were destined for the
European Union. (See supra, para. 5.62. ) Hence, we understand the EU authorities to have considered that
ICOF-S' P&L reflected the additional amounts that corresponded only to export sales.
171 Panel Report, paras. 7.113-7.114.
172 Panel Report, fn 340 to para. 7.114 (quoting European Union's second written submission to the
Panel, para. 69).
173 Panel Report, para. 7.114.
174 Indonesia's appellant's submission, para. 2.42.
175 Indonesia's appellant's submission, para. 3.168 (quoting Appellate Body Report, US – Hot-Rolled
Steel, para. 160).
176 Panel Report, para. 7.32.
177 Indonesia's appellant's submission, paras. 3.168-3.169. The European Union contests Indonesia's
assertion, stating that the EU authorities did not impose a single anti-dumping duty for PT Musim Mas and
ICOF-S together. The European Union explained that, were ICOF-S to export to the European Union
Indonesian fatty alcohols manufactured by another company, it would have faced the duty applicable to that
manufacturer. (European Union's appellee's submission, para. 154)
179 Indonesia's appellant's submission, para. 3.165 (referring to Panel Report, paras. 7.126-7.130).

the adjustment for the mark -up was warranted. 180 Accordingly, the Panel reasoned that the
question before it was not whether it was permissible for the EU authorities to deduct the SG&A
and profit of the related trader. Instead, the Panel considered the question to be whether, in the
process of making an allowance for the mark-up, the EU authorities were allowed to use the SG&A
and profit as a basis for calculating the amount of that allowance.181 The Panel's response to that
question was as follows:
When a transfer of funds occurs between two related entities, an investigating
authority would be justified in examining whether the actual value of the expense
differs from its reported value. Such an examination would, in our view, assist in
identifying the proper amount of the adjustment to be made. Since there is evidence
on the record that the mark-up was designed to cover the cost of the service rendered
by ICOF -S, we consider that its SG&A and pro fit represent a reasonable basis for
calculating the actual value of this service.
For these reasons, we do not accept Indonesia's argument that the EU authorities
were precluded from deducting an allowance that was calculated based on ICOF -S'
P&L and what they considered to be a reasonable profit margin for this particular
sector.182
5.68. We understand Indonesia's appeal to challenge this part of the Panel's reasoning. We do not
share Indonesia's position that these Panel statements represent a view that "the inv estigating
authority may replace the expenses actually incurred."183 To the contrary, the Panel acknowledged
that the close relationship between two entities may result in the reported value of the expenses
being different from the actual value. The Panel co nsidered that, in circumstances where such a
relationship exists, investigating authorit ies would be justified in examining whether the actual
value of the expense differs from its reported value. Having reviewed the facts before it, the Panel
found that t he EU authorities were justified in undertaking such an inquiry. The Panel also found,
based on the evidence on the record, that ICOF-S' SG&A and profit represented a reasonable basis
for the EU authorities to calculate the actual value of the mark -up.184 We see no error in the
Panel's reasoning or conclusion.
5.69. Based on the foregoing, we find that Indonesia has not demonstrated that the Panel erred in
applying Article 2.4 of the Anti -Dumping Agreement to the facts of this case. We turn now to
Indonesia's claim that the Panel acted inconsistently with Article 17.6(i) of the
Anti-Dumping Agreement and Article 11 of the DSU.
5.1.6 Whether the Panel acted inconsistently with Article 17.6(i) of the
Anti-Dumping Agreement and Article 11 of the DSU
5.70. Indonesia submits that th e Panel's findings under Article 2.4 of the Anti -Dumping
Agreement should also be reversed because the Panel failed to apply the standard of review
applicable pursuant to Article 17.6(i) of the Anti -Dumping Agreement and Article 11 of the DSU.
Indonesia contends that the Panel repeatedly "stepped into the shoes" 185 of the investigating
authority and conducted its own analysis as if it were the investigating authority, including by
engaging de novo with evidence and arguments from the investigation in an eff ort to inject
meaning into the EU authorities' reasoning.
5.71. Specifically, Indonesia argues that the Panel: (i) improperly concluded that the
EU authorities had complied with Article 2.4 before it even addres sed Indonesia's arguments;

180 Panel Report, para. 7.128 (referring to Provisional Company-Specific Disclosure to PT Musim Mas,
Annex 2: Calculation of dumping margin (Panel Exhibit IDN-33 (BCI)), p. 4).
181 Panel Report, para. 7.129.
182 Panel Report, paras. 7.129-7.130 (referring in fn 365 to PT Musim Mas response to Commission
questionnaire AD563 (2010) (excerpt – response to question H-2.4) (Panel Exhibit IDN-22 (BCI)), pp. 43-44).
(other fns omitted)
183 Indonesia's appellant's submission, para. 3.165 (referring to Panel Report, paras. 7.126-7.130).
184 Panel Report, para. 7.129.
185 Indonesia's appellant's submission, para. 4.3.

(ii) repeatedly engaged in a de novo review of the record evidence; and (iii) ignored or summarily
dismissed key evidence and arguments by Indonesia. We address each of these arguments in turn.
5.1.6.1 Whether the Panel improperly concluded that the EU authorities had complied
with Article 2.4 before it addressed Indonesia's arguments
5.72. Indonesia alleges that, without having considered Indonesia's arguments and evidence, the
Panel concluded that the EU authorities had not acted inconsistently with Article 2.4 of the
Anti-Dumping Agreement.186 Indonesia contends that, by the time the Panel turned to consider
Indonesia's arguments and evidence, the Panel had already "made up and closed its mind ".187
According to Indonesia, the Panel's approach cannot be reconciled with the most basic duties of
panels, with due process, or with the rules on the allocation of the burden of proof. 188
Indonesia adds that another way to look at the Panel's analysis is that the Panel made the case for
the European Union, which is contrary to Article 11 of the DSU.189
5.73. The European Union disagrees with Indonesia's characterization of the Panel's analysis in
section 7.3.5.1 of the Panel's Report, arguing that this section must be read in the context of the
Panel's analysis of Indonesia's claim under Article 2.4 as a whole. The European Union therefore
requests us to reject Indonesia's arguments.190
5.74. To us, Indonesia's arguments seem to take issue with how the Panel structured its analysis.
Indonesia's claims under Articles 2.4 and 2.3 of the Anti -Dumping Agreement are addressed in
section 7.3 of the Panel Report. The Panel characterized the "principal question" in that section as
"whether the EU authorities correctly characterized the mark -up paid by PT Musim Mas to
ICOF-S as a difference which affects price comparability under Art icle 2.4 of the
Anti-Dumping Agreement."191
5.75. Section 7.3 of the Panel Report is entitled "Indonesia's claims under Articles 2.3 and 2.4 of
the Anti-Dumping Agreement", and contains six subsections. In the first four of these, the Panel
set out an introduction , the relevant provisions of the covered agreements, the summaries of the
arguments of the parties , and the summaries of the arguments of the third parties. In the last
subsection, the Panel set out its conclusion on these claims by Indonesia. The fifth su bsection
(section 7.3.5), entitled "Evaluation by the Panel", contains the main part of the Panel's analysis.
It is broken down into four further subsections. 192 As mentioned at paragraph 5.15. above,
following a brief overview of its understanding of Article 2.4193, the Panel began by reviewing
whether the EU authorities' explanations revealed a sufficient evidentiary basis for treating the
mark-up in question as a difference affecting price comparability. 194 Thereafter, the Panel
specifically and separately addressed the three lines of argument raised by Indonesia.195
5.76. On appeal, Indonesia focuses on one segment of the Panel's analysis under Article 2.4,
namely, the Panel's review of the EU authorities' determination to make an adjustment to the
export price for the mark-up.196
5.77. Article 11 of the DSU requires a panel to make an objective assessment of the matter
before it. This obligation embraces all aspects o f a panel's examination of the "matter", both
factual and legal.197 Article 12.7 of the DSU requires a panel to set out, in its report, "the findings
of fact, the applicability of relevant provisions and the basic rationale behind any findings and
recommendations that it makes". Provided that it satisfies its duties under Articles 11 and 12.7, a

186 Indonesia's appellant's submission, paras. 4.43-4.44 and 4.52 (referring to Panel Report, paras. 7.88
and 7.95-7.98).
187 Indonesia's appellant's submission, para. 4.47. See paras. 4.45-4.48.
188 Indonesia's appellant's submission, para. 4.42.
189 Indonesia's appellant's submission, para. 4.49.
190 European Union's appellee's submission, paras. 231-263.
191 Panel Report, para. 7.33.
192 The Panel outlined its order of analysis at paragraph 7.33 of its Report.
193 Panel Report, paras. 7.55-7.61.
194 Panel Report, paras. 7.63-7.98.
195 Supra, para. 5.29. .
196 Panel Report, subsection 7.3.5.1, paras. 7.63-7.98.
197 Appellate Body Report, US – Hot-Rolled Steel, para. 54.

WTO panel enjoys wide discretion in deciding how to structure and elaborate the reasons for its
findings and conclusions.
5.78. In this case, although Indonesia's challenge focuses on one segment of the Panel's analysis,
this segment must be considered in its proper context: as part of the Panel's overall analysis of
Indonesia's claim under Article 2.4. Indonesia highlights that the Panel did not address any of the
parties' arguments between paragraphs 7.54 and 7.98 of its Report. 198 However, this segment of
the Panel Report is immediately preceded by the Panel's overview of the parties' arguments.
Second, the Panel identified the claim by Indonesia under Article 2.4 as the pri ncipal inquiry
informing the Panel's subsequent elaboration of its understanding of Article 2.4.199 In articulating
its understanding of Article 2.4, the Panel explicitly recogni zed that, although the "mark -up" at
issue in the present case was not included i n the list in the third sentence of Article 2.4 of factors
that could potentially affect price comparability, that list is not exhaustive.200 Third, in the segment
at issue, the Panel relied upon evidence submitted by Indonesia for its analysis. 201 Thus, while the
Panel, in subsection 7.3.5.1 of its Report, did not expressly engage with Indonesia's specific
allegation that PT Musim Mas and ICOF -S formed a single economic entity, the Panel's references
in its footnotes show that it was well aware of Indonesia's arguments and that the Panel had opted
to address these arguments in later sections of its analysis. Fourth, in the sections of the Panel's
analysis that follow the challenged segment, the Panel specifically and separately addressed each
line of argument raised by Indonesia challenging the EU authorities' treatment of the mark-up.
5.79. Accordingly, the Panel did not act inconsistently with Article 11 of the DSU merely by
situating its review of the EU authorities' treatment of the mark-up where it did in its Report.
5.80. We also take note of Indonesia's assertion that the Panel concluded that the European Union
had not acted inconsistently with Article 2.4 of the Anti -Dumping Agreement before even
considering Indonesia's arguments and evidence.202 In this regard, we understand Indonesia to be
challenging the following statements that the Panel made at the end of section 7.3.5.1 of its
Report:
On the basis of the foregoing, we consider that the EU authorities did not act
inconsistently with Article 2.4 of the Anti-Dumping Agreement by considering whether
"ICOF-S had functions similar to an agent working on a commission basis" ...
In light of the foregoing, we conclude that the EU authorities had a sufficient
evidentiary basis – encompassing both of the factual findings and their attendant
evidence as discussed in the foregoing sections – for establishing that the mark -up
was a factor that impacts the prices of the product and that was linked exclusively to
the export side, therefore constituting a difference which affects p rice comparability
under Article 2.4.203
5.81. In US – Shrimp II (Viet Nam) and EU – Biodiesel (Argentina), the Appellate Body addressed
claims on appeal that the respective panels, in assessing the meaning of municipal law, had
arrived at their conclusion on the basis of only one of several relevant elements. In both disputes,
the Appellate Body noted that sp ecific panel statements, "read in isolation, might unfortunately
give the impression that the [p]anel was drawing a conclusion" on the basis of only one of the
relevant elements.204 However, in each case, having reviewed the panel's reasoning in its entirety ,
the Appellate Body concluded that the panel had not erred in making intermediate findings, had

198 Indonesia's appellant's submission, para. 4.37.
199 Panel Report, para. 7.54.
200 Panel Report, para. 7.56 (quoting Appellate Body Report, US – Hot-Rolled Steel, para. 177).
201 The exhibits referred to throughout this section of the Panel's analysis were submitted by Indonesia.
Additionally, the Panel made explicit references to certain of Indonesia's arguments. (See e.g. Panel Report,
202 Indonesia's appellant's submission, paras. 4.7, 4.37, and 4.41.
203 Panel Report, paras. 7.96-7.97.
204 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.205 (quoting Appellate Body Report, US –

not failed to assess all the relevant elements, and had therefore complied with its duty under
Article 11 of the DSU.205
5.82. Similarly, in the present dispute, the u se of the words "we conclude" at paragraph 7.97 of
the Panel Report may seem premature. Although the Panel used those words in an early segment
of its analysis, having reviewed the Panel's reasoning in its entirety, we consider the finding in that
paragraph to be an intermediate finding, and not its final conclusion with respect to Indonesia's
claim under Article 2.4 of the Anti-Dumping Agreement. Indeed, the Panel proceeded to engage, at
some length, with Indonesia's specific arguments and evidence before arriving at its overall
conclusion with respect to Indonesia's claims under Articles 2.4 and 2.3 of the Anti -Dumping
Agreement.206 Accordingly, we do not consider that the structure of the Panel's analysis in its
Report, nor its use of the words "we conclude " in an early segment of its analysis, amount to a
violation of Article 11 of the DSU. Nor do we accept Indonesia's assertion that, in its analysis of
the EU authorities' determination, the Panel acted inconsistently with Article 11 of the DSU by
making the case for the defendant.
5.1.6.2 Whether the Panel engaged in a de novo review of the record evidence
5.83. Indonesia submits that the Panel failed to apply the correct standard of review, in multiple
instances, by engaging in a de novo review of record evidence, inclu ding: (i) the email in
Verification Exhibit PTMM -18207; (ii) evidence concerning ownership links between PT Musim Mas
and ICOF-S208; (iii) evidence concerning the existence of a sales and marketing department for
fatty alcohols in PT Musim Mas 209; and (iv) an Ex cel spreadsheet submitted by PT Musim Mas as
part of its Questionnaire response.210
5.84. Pursuant to Article 11 of the DSU, in assessing whether a competent authority has complied
with its obligations in making its determination, a panel is not permitted to conduct a de novo
review of the facts of the case or substitute its judgement for that of the authority. 211 Rather, the
panel must examine "whether, in the light of the evidence on the record, the conclusions reached
by the investigating authority are reasoned and adequate". 212 At the same time, the panel cannot
simply defer to the conclusions of the domestic authorities. Instead, a panel's examination of those
conclusions must be critical and searching, and be based on the information contained on the
record and the explanations given by the authorit ies in their published report. 213 A panel must
ascertain whether the investigatin g authorities have evaluated all of the relevant evidence in an
objective and unbiased manner, including by taking sufficient account of conflicting evidence and
responding to competing plausible explanations of that evidence.214
5.85. For disputes under the Anti-Dumping Agreement, Article 17.6(i) provides:
[I]n its assessment of the facts of the matter, the panel shall determine whether the
authorities' establishment of the facts was proper and whether their evaluation of
those facts was unbiased and objective. If the establishment of the facts was proper
and the evaluation was unbiased and objective, even though the panel might have
reached a different conclusion, the evaluation shall not be overturned[.]
5.86. Under Article 17.6(i), the task of a panel is to review the investigating authorities'
"establishment" and "evaluation" of the facts. 215 A panel must not "engage in a new and

205 Appellate Body Reports, EU – Biodiesel (Argentina), para. 6.209; and US – Shrimp II (Viet Nam),
paras. 4.50-4.51.
206 Panel Report, paras. 7.160-7.161.
207 Indonesia's appellant's submission, paras. 4.56-4.125.
208 Indonesia's appellant's submission, paras. 4.126-4.152.
209 Indonesia's appellant's submission, paras. 4.153-4.170.
210 Indonesia's appellant's submission, paras. 4.171-4.192.
211 Appellate Body Reports, US – Steel Safeguards, para. 299; Argentina – Footwear (EC), para. 121;
US – Anti-Dumping and Countervailing Duties (China), para. 379; and US – Cotton Yarn, para. 74.
212 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada), para. 93.
213 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada), para. 93.
214 Appellate Body Reports, US – Softwood Lumber VI (Article 21.5 – Canada), para. 97; and US –
Anti-Dumping and Countervailing Duties (China), para. 516.
215 Appellate Body Report, US – Hot-Rolled Steel, para. 55.

independent fact-finding exercise".216 Instead, a panel must assess whether the establishment of
the facts by the investig ating authorities was "proper" and whether the evaluation of those facts
by those authorities was "unbiased and objective". 217 Furthermore, while a panel's review of the
investigating authorit ies' determination is limited to the information on the record of the
investigation, neither Article 17.6(i) of the Anti -Dumping Agreement nor Article 11 of the DSU bar
a panel from examining evidence that was on the investigation record but not expressly reflected
in the investigating authorities' determination.
5.87. If a pa nel conducts its examination within the parameters described above, "it is generally
within the discretion of the [p]anel to decide which evidence it chooses to utilize in making
findings"218, and the mere fact that a panel did not explicitly refer to each a nd every piece of
evidence in its reasoning is insufficient to establish that the panel applied an improper standard of
review.219 Moreover, not every error committed by a panel amounts to a violation of Article 11 of
the DSU, but only those that are so mate rial that, taken together or singly, they undermine the
objectivity of the panel's assessment of the matter before it.220
5.88. Turning to the present case, we observe that, before the Panel, Indonesia relied upon
Verification Exhibit PTMM -18221 and the record evide nce concerning the existence of a sales and
marketing department for PT Musim Mas in support of its assertion that ICOF -S was involved in
PT Musim Mas' domestic sales in Indonesia. 222 Indonesia also submitted evidence of the close
corporate links between PT Musim Mas and ICOF-S to demonstrate that PT Musim Mas and ICOF-S
formed a "single economic entity". 223 On appeal, Indonesia contends that the Panel engaged in a
de novo review of these pieces of evidence and substituted the judgment of the EU authorities with
its own.
5.89. For instance, Indonesia argued before the Panel that the EU authorities' failure to analyse
Verification Exhibit PTMM -18 meant that they failed to analyse a crucial part of the evidentiary
backdrop.224 On appeal, Indonesia argues that the Panel conducted a de novo review of
Verification Exhibit PTMM-18, thereby improperly supplementing the work of the EU authorities.225
5.90. Verification Exhibit PTMM -18 is an email dated 22 April 2010 from a representative of the
ICOF Group to a representative of PT Musim Mas. The email forwards two sales contracts for
domestic sales in Indonesia, both printed on the letterhead of PT Musim Mas. According to

216 Appellate Body Reports, EC – Bed Linen (Article 21.5 – India), para. 169; Mexico – Corn Syrup
(Article 21.5 – US), para. 84. See also Appellate Body Reports, US – Lamb, para. 106; and US – Cotton Yarn,
para. 74.
217 Appellate Body Report, US – Hot-Rolled Steel, para. 56.
219 Appellate Body Reports, EC – Fasteners (China), paras. 441-442; and Brazil – Retreaded Tyres,
para. 202.
220 Appellate Body Reports, EC – Fasteners (China) (Article 21.5 – China), para. 5.61; China – Rare
Earths, para. 5.179; EC – Fasteners (China), paras. 442 and 499; and EC and certain member States – Large
Civil Aircraft, para. 1318.
221 Verification Exhibit PTMM-18 (Panel Exhibit IDN-47 (BCI).
222 Indonesia's appellant's submission, paras. 4.153 and 4.168 (referring to PT Musim Mas response to
Commission questionnaire AD563 (2010), Attachment A-3.3.1: Table G – PT Musim Mas Business Organization
Structure (Panel Exhibit EU-5 (BCI)); PT Musim Mas response to Commission questionnaire AD563 (2010),
Attachment A-3.3.2, Table G – Organization Chart – Fatty Alcohols Division (Panel Exhibit EU-6 (BCI)); and
Excel file "PTMM definitive disclosure.xls" (Panel Exhibit EU-12 (BCI))).
223 Indonesia's appellant's submission, paras. 4.126-4.127 (referring to PT Musim Mas response to
Commission questionnaire AD563 (2010), Annex A-3.4: Corporate structure of the Musim Mas Group (Panel
Exhibit IDN-18 (BCI)); PT Musim Mas response to Commission questionnaire AD563 (2010), Annex A: List of
PT Musim Mas' shareholders (Panel Exhibit IDN-19 (BCI)); PT Musim Mas, "Impact of the Interpipe judgment
on the fatty alcohol anti-dumping investigation (AD563): PTMM situation", PowerPoint presentation at the
DG Trade hearing on 16 August 2012, slides 5 and 6 (Panel Exhibit IDN-26 (BCI)), slides 5 and 6; and
PT Musim Mas' Comments on the Preliminary Determination, 10 June 2011 (Panel Exhibit IDN-34 (BCI))).
224 Indonesia's appellant's submission, para. 4.69 (referring to Verification Exhibit PTMM-18 (Panel
Exhibit IDN-47 (BCI)).
225 Indonesia's appellant's submission, paras. 4.73-4.94 (referring to Panel Report, para. 7.85).

Indonesia, PT Musim Mas submitted this document to the EU authorities to demonstrate that
ICOF-S was involved in PT Musim Mas' domestic sales in Indonesia.226
5.91. In its appellant's submission, Indonesia challenges the very examination by the Panel of
Verification Exhibit PTMM -18227, and contends that, in this examination, the Panel should have
limited itself to assessing whether the EU authorities' explanation regarding the role of ICOF -S in
domestic sales was reasoned and adequate. Instead, according to Indonesia, the Panel went
further and substituted the EU authorities' judgement with its own.
5.92. We observe that the EU authorities' Final Determination does not contain an explicit
reference to Verification Exhibit PTMM-18. We recall that, while a panel's review of an investigating
authority's determination is limited to the information on the record of the investigation228, neither
Article 17.6(i) of the Anti -Dumping Agreement nor Article 11 of the DSU bar a panel from
examining evidence that was on the investigation record but not expressly reflected in the
investigating authority's dete rmination. Hence, we do not consider it improper for the Panel to
have examined Verification Exhibit PTMM -18 as it was on the record of the EU authorities'
anti-dumping investigation.
5.93. The Panel stated, in relevant part:
We understand the only piece of evid ence indicating any involvement by ICOF -S in
PT Musim Mas' domestic sales was the document submitted to the EU authorities as
"Attachment 18" pertaining to an email. In our view, it was not unreasonable for the
EU authorities to ascribe limited probative value to this document. The document does
not reveal the nature, extent, or scope of ICOF -S' alleged involvement in domestic
sales generally. … We cannot see how this demonstrates that ICOF -S undertakes all
sales, marketing, and negotiating work on behalf o f PT Musim Mas for domestic sales,
nor how this demonstrates that PT Musim Mas has no active sales department.229
5.94. We highlight the Panel's statement above that, "[i]n our view, it was not unreasonable for
the EU authorities to ascribe limited probative value to this document ." Read in isolation, this
statement could imply that the EU authorities indicated in their determination that they attached
"limited probative value to" Verification Exhibit PTMM -18. However, reading the paragraph in its
entirety, we understand the Panel's reasoning to be a rejection of the assertion by Indonesia that
the evidence on the record of the EU authorities clearly established that ICOF -S was the internal
sales department of PT Musim Mas . We do not understand the Panel to have set out an
explanation of how the EU authorities assessed the probative value of Verification Exhibit
PTMM-18. Importantly, the Panel did not, in its reasoning, provide a "different conclusion" 230 from
that of the EU authorities with respect to the alleged i nvolvement by ICOF -S in PT Musim Mas'
domestic sales.
5.95. For these reasons, we find that Indonesia has not demonstrated that the Panel conducted a
de novo review of Verification Exhibit PTMM -18, or that the Panel substituted the EU authorities'
judgement with its own.
5.96. Indonesia makes similar arguments in respect of the record evidence regarding the close
corporate links between the two entities in support of the argument that PT Musim Mas and
ICOF-S formed a "single economic entity". 231 Indonesia contends that, while the Panel engaged
with this evidence, the EU authorities did not.

226 Indonesia's appellant's submission, para. 4.62; Indonesia's opening statement at the first Panel
227 Indonesia's appellant's submission, paras. 4.73-4.94.
228 Appellate Body Report, Thailand – H-Beams, para. 118.
230 Article 17.6(i) of the Anti-Dumping Agreement.
231 Indonesia's appellant's submission, paras. 4.126-4.127 (referring to PT Musim Mas response to
Commission questionnaire AD563 (2010), Annex A-3.4: Corporate structure of the Musim Mas Group (Panel
Exhibit IDN-18 (BCI)); PT Musim Mas response to Commission questionnaire AD563 (2010), Annex A: List of
PT Musim Mas' shareholders (Panel Exhibit IDN-19 (BCI)); PT Musim Mas, "Impact of the Interpipe judgment
on the fatty alcohol anti-dumping investigation (AD563): PTMM situation", PowerPoint presentation at the

5.97. Indonesia is correct in stating that the EU authorities made no explicit reference to the
document illustrating the corporate structure of the Musim Mas Group232, or to the list of PT Musim
Mas' shareholders.233 However, we note that the EU authorities responded to the information
concerning ownership and control of PT Musim Mas and ICOF -S contained in the documents
submitted to the Panel as Exhibits IDN-26 and IDN -34.234 We agree with the Panel that, in their
Final Determination, "the EU authorities responded to PT Musim Mas' arguments in this regard and
provided further explanation of why they considered that the adjustment was warranted." 235
Accordingly, it is not accurate for Indonesia to as sert that the EU authorities "never responded to
these arguments".236
5.98. Indonesia also argues that the Panel conducted a de novo review of the document
illustrating the corporate structure of the Musim Mas Group 237 and the list of PT Musim Mas'
shareholders.238 According to Indonesia, the Panel made an " arguendo" assumption that evidence
of commonality in ownership, operational management , and control was "critical", and found that
the evidence before the EU authorities did not demonstrate the precise nature of the relationship
between PT Musim Mas and ICOF-S as alleged by Indonesia.239 The Panel stated:
In Indonesia's own framework, the natu re and extent of overlap in this regard appear
to be important to identifying whether a payment can be said to affect price
comparability. Therefore, even assuming evidence of commonality in ownership,
operational management and control is "critical", the evidence before the
EU authorities did not, in our view, demonstrate the precise nature of the relationship
between PT Musim Mas and ICOF-S as alleged by Indonesia.240
5.99. We do not agree with Indonesia's characterization of the se Panel statements as amounting
to a de novo review of the record evidence.241 The Panel was responding directly to allegations by
Indonesia regarding the significance of the record evidence concerning ownership and control that
the EU authorities allegedly ignored, or on which they placed insufficient weight, or from which
they drew incorrect inferences. We do not read the Panel's statements as an attempt to substitute
its judgement for that of the EU authorities. Instead, the Panel was assessing whether, in light of
the evidence on the rec ord, the conclusions reached by th ose authorities were reasoned and
adequate, given the facts and circumstances of this case.242
5.100. Regarding the existence of a sales and marketing department for fatty alcohols in
PT Musim Mas, Indonesia identifies two document s showing PT Musim Mas' corporate structure.243

DG Trade hearing on 16 August 2012 (Panel Exhibit IDN-26 (BCI)) , slides 5 and 6; and PT Musim Mas'
Comments on the Preliminary Determination, 10 June 2011 (Panel Exhibit IDN-34 (BCI))).
232 PT Musim Mas response to Commission questionnaire AD563 (2010), Annex A-3.4: Corporate
structure of the Musim Mas Group (Panel Exhibit IDN-18 (BCI)).
233 PT Musim Mas response to Commission questionnaire AD563 (2010), Annex A: List of PT Musim Mas'
shareholders (Panel Exhibit IDN-19 (BCI)).
234 PT Musim Mas, "Impact of the Interpipe judgment on the fatty alcohol anti-dumping investigation
(AD563): PTMM situation", PowerPoint presentation at the DG Trade hearing on 16 August 2012 (Panel
Exhibit IDN-26 (BCI)); PT Musim Mas' Comments on the Preliminary Determination, 10 June 2011 (Panel
Exhibit IDN-34 (BCI)). The EU authorities did not expressly reference these two documents by name. However,
the EU authorities responded directly to the arguments raised by PT Musim Mas in Panel Exhibits IDN-34 and
IDN-26. (See General Disclosure Document (Panel Exhibit IDN-39), paras. 31-38; and Revised Determination
(Panel Exhibit IDN-5), recitals 19-23)
235 Panel Report, para. 7.68 (referring to Final Determination (Panel Exhibit IDN-4), recitals 31-33).
236 Indonesia's appellant's submission, para. 4.128.
237 PT Musim Mas response to Commission questionnaire AD563 (2010), Annex A-3.4: Corporate
structure of the Musim Mas Group (Panel Exhibit IDN-18 (BCI)).
238 PT Musim Mas response to Commission questionnaire AD563 (2010), Annex A: List of PT Musim Mas'
shareholders (Panel Exhibit IDN-19 (BCI)).
239 Indonesia's appellant's submission, paras. 4.132-4.133 (quoting Panel Report, para. 7.109).
241 PT Musim Mas response to Commission questionnaire AD563 (2010), Annex A-3.4: Corporate
structure of the Musim Mas Group (Panel Exhibits IDN-18 (BCI)); PT Musim Mas response to Commission
questionnaire AD563 (2010), Annex A: List of PT Musim Mas' shareholders (IDN-19 (BCI)).
242 See Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada), para. 93.
243 Indonesia's appellant's submission, para. 4.153 (referring to PT Musim Mas response to Commission
questionnaire AD563 (2010), Attachment A-3.3.1: Table G – PT Musim Mas Business Organization Structure

According to Indonesia, while the EU authorities never analysed these two documents, the Panel
not only examined them but also drew its own conclusions about the probative value of th ese
documents.244 Similarly, before the Panel, Indonesia relied upon the spreadsheet that PT Musim
Mas had submitted as part of its questionnaire response in support of its argument that the
deduction of ICOF -S' SG&A and profits led to an asymmetry between the prices of domestic and
export sales. On appeal, Indonesia argues that the Panel erred in reviewing this document because
this spreadsheet was never addressed by the EU authorities in the manner that the Panel did. 245
These arguments are akin to those made by Indonesia concerning Ve rification Exhibit PTMM-18.
Thus, for the reasons discussed at paragraphs 5.86. -5.87. and 5.92. -5.94. above, we find
that Indonesia has not demonstrated that the Panel conducted a de novo review of the r ecord
evidence in question, or that the Panel substituted the EU authorities' judgement with its own.
5.1.6.3 Whether the Panel ignored or summarily dismissed key evidence and arguments
by Indonesia
5.101. Indonesia asserts that the Panel erred by ignoring or summarily d ismissing key arguments
and evidence submitted by Indonesia. Indonesia stresses that it is not requesting us to agree with
Indonesia's view of what this evidence demonstrates as a matter of fact. Rather, Indonesia asks us
to find that certain evidence and arguments were relevant to the Panel's analysis of the
EU authorities' determination and supported Indonesia's case, and that, therefore, the Panel
should not have ignored or summarily dismissed them. 246 In particular, Indonesia argues that the
Panel summarily dismissed or ignored Indonesia's arguments and evidence relating to the Sale and
Purchase Agreement between PT Musim Mas and ICOF-S.247
5.102. The European Union does not agree. In its view, the Panel properly addressed and rejected
these arguments.248
5.103. We observe that the Panel addressed Indonesia's argument, that the Sale and Purchase
Agreement should not have been relied upon by the EU authorities to find that the role of ICOF -S
was one of an agent working on a commission basis, as follows:
In our view, it was not unreasonable for the EU authorities to have relied on the terms
of the Sale and Purchase Agreement in their assessment of "whether the functions of
a trader are not those of an internal sales department but comparable to those of an
agent working on a commission basis". … These aspects [of the Sale and Purchase
Agreement] suggest that ICOF -S has a funct ional capacity to provide certain services
as an international trader that is lacking in PT Musim Mas. Further, the Sale and
Purchase Agreement stipulates that the services provided by ICOF -S – namely, the
assumption of certain "functions, obligations, and risks" – are to be remunerated on
individual sales through the "ICOF Margin", i.e. the mark-up. Together, these aspects
plausibly suggest that ICOF -S performs "functions … similar to those of an agent
working on a commission basis". Other aspects of the S ale and Purchase Agreement
also militate against the inference that ICOF -S operates as the "internal sales
department" of PT Musim Mas. For instance, whereas PT Musim Mas engages in
domestic sales, the Sale and Purchase Agreement explicitly refers only to export sales
and stipulates that it "constitutes the entire agreement and understanding between
the Parties in respect of its subject matter". Moreover, the provision that "[n]othing in
this Agreement shall create any partnership, joint venture or relation ship of principal

(Panel Exhibit EU-5 (BCI)); and PT Musim Mas response to Commission questionnaire AD563 (2010),
Attachment A-3.3.2, Table G – Organization Chart – Fatty Alcohols Division (Panel Exhibit EU-6 (BCI)).
244 Indonesia's appellant's submission, paras. 4.155-4.157 (quoting Panel Report, para. 7.84 and fn 277
thereto).
245 Indonesia's appellant's submission, paras. 4.171-4.175 (referring to Panel Report,
paras. 7.119-7.120; and Excel file "PTMM definitive disclosure.xls" (Panel Exhibit EU-12 (BCI))).
246 Indonesia's appellant's submission, paras. 4.221-4.290.
247 Sale and Purchase Agreement between PT Musim Mas and Inter Continental Oils & Fats Pte Ltd
(ICOF-S) (1 January 2009) (Panel Exhibit IDN-24 (BCI)).
248 European Union's appellee's submission, paras. 303-312.

and agent between the Parties" contradicts the characterization of ICOF -S as
PT Musim Mas' closely-intertwined internal sales department.249
5.104. Moreover, in response to Indonesia's comments at the interim review stage, the Panel
clarified why it considered the evidence submitted by Indonesia to be irrelevant to its consideration
of the content and significance of the Sale and Purchase Agreement. 250 In particular, the Panel
explained that Panel Exhibits IDN -52 to IDN-54, which contain general docu mentation on
inter-company agreements , complement, and do not contradict, the provisions of the Sale and
Purchase Agreement. In addition, the Panel noted that Panel Exhibits IDN-53 and IDN-54 contain a
disclaimer indicating the generality of these document s and clarifying that their application to
specific situations would depend on the particular circumstances involved.251
5.105. The Panel also highlighted that its interim report had addressed in detail why the Panel had
found that the existence of transfer prices does not exclude the characterization of a payment as
an expense rather than as a mere allocation of funds between two related entities.252
5.106. We consider that the Panel addressed the main thrust of Indonesia's arguments and even
went further to explain why it had found certain evidence to be irrelevant. The fact that the Panel
did not explicitly refer to each and every piece of evidence submitted by Indonesia in its reasoning
is, in itself, insufficient to establish that the Panel applied an incorrect standard of review.253
5.107. In addition, we observe that the arguments that Indonesia made before the Panel largely
replicated the arguments that PT Musim Mas had made to the EU authorities, and which the
EU authorities rejected. The Panel expressly addressed and rejected Indonesia's arguments,
finding that it was not unreasonable for the EU authorities to have relied upon the terms of the
Sale and Purchase Agreement in their assessment of the role of ICOF -S.254 We recall that, in
reviewing the determinations of competent au thorities, panels must not "engage in a new and
independent fact -finding exercise". 255 Yet, some of Indonesia's assertions on appeal seem to
suggest that the Panel breached its duty under Article 11 of the DSU and Article 17.6(i) of the
Anti-Dumping Agreement because it did not consider Indonesia's evidence and arguments
independently of the determination by the EU authorities.256 We disagree. In our view, the Panel
conducted a critical and searching examination of the EU authorities' conclusions, including by
ascertaining whether the EU authorities had evaluated all of the relevant evidence in an objective
and unbiased manner, taking account of the alleged ly conflicting evidence, and responding to that
evidence.257 The Panel's review f ell within the scope of its discretion as the trier of facts. 258
Accordingly, the Panel did not improperly ignore or summarily dismiss Indonesia's evidence and
arguments.
5.108. For all of the reasons discussed above, we find that Indonesia has not demonstrated that
the Panel acted inconsistently with Article 11 of the DSU or Article 17.6(i) of the
Anti-Dumping Agreement in addressing Indonesia's claim under Article 2.4.

250 Panel Report, paras. 6.30-6.47.
251 Panel Report, para. 6.35 (referring to LCN Legal Limited, Intercompany Agreement Template for
Term Loan Agreement (2013), available at http://lcnlegal.com/template-intercompany-agreement-for-transfer-
pricing-term-loan-agreement/ (Panel Exhibit IDN-53): and LCN Legal Limited, Intercompany Agreement
Template for Limited Risk Distribution Agreement (2014), available at http://lcnlegal.com/template-
intercompany-agreement-for-transfer-pricing-limited-risk-distribution-agreement/ (Panel Exhibit IDN-54)).
252 Panel Report, para. 6.36.
253 Appellate Body Reports, EC – Fasteners (China), paras. 441-442; and Brazil – Retreaded Tyres,
para. 202.
254 Panel Report, para. 7.95.
255 Appellate Body Reports, EC – Bed Linen (Article 21.5 – India), para. 169; Mexico – Corn Syrup
(Article 21.5 – US), para. 84.
256 For example, at paragraphs 4.240-4.247 of its appellant's submission, Indonesia discusses the
significance of specific pieces of evidence, devoid of any connection to the EU authorities' explanation or
determination.
257 Appellate Body Reports, US – Softwood Lumber VI (Article 21.5 – Canada), para. 97;
US - Anti-Dumping and Countervailing Duties (China), para. 516.
258 See Appellate Body Report, EC – Bed Linen (Article 21.5 – India), para. 170.

5.1.7 Conclusion
5.109. The focus of Article 2.4 of the Anti -Dumping Agreement is not merely on a comparison
between the normal value and the export price, but predominantly on the means to ensure the
fairness of that comparison. T o this end, investigating authorities are required to make due
allowance for differences affe cting price comparability. There are no differences affecting price
comparability that are precluded, as such, from being the object of an allowance. Instead, the
need to make due allowances must be assessed in light of the specific circumstances of each c ase.
The Panel's articulation of the legal standard under Article 2.4 of the Anti -Dumping Agreement is
consonant with our understanding of this provision. The existence of a close relationship between
transacting companies would be pertinent to the extent that it affects the relevant transactions in
such a way as to affect the comparability of the export price and the normal value. Thus, the Panel
did not err in rejecting Indonesia's argument that the existence of what Indonesia denotes as a
"single economic entity" is dispositive of whether a given mark -up qualifies as a difference which
affects price comparability under Article 2.4 of the Anti-Dumping Agreement.
5.110. Accordingly, we find that Indonesia has not demonstrated that the Panel erred in its
interpretation of Article 2.4 of the Anti-Dumping Agreement.
5.111. Having so found, we recall that we are not ruling that the nature and degree of affiliation
between related companies is irrelevant to the issue of whether any allowances should be made in
order to ensure a fair comparison between the normal value and the export price. Nor do we rule,
in the abstract, on the circumstances in which an inquiry into the nature of the relationship
between transacting entities will suffice or be determinative of the issue of whether allowances
should be made pursuant to Article 2.4.
5.112. With respect to Indonesia's claim that the Panel erred in its application of Article 2.4 of the
Anti-Dumping Agreement to the facts of this case, we consider that the Panel's review of the
EU authorities' evaluation was properly focused on whether that evaluation was consistent with
Article 2.4. The Panel did not err in finding that the EU authorities had a sufficient evidentiary basis
for establishing that the mark-up paid by PT Musim Mas to ICOF-S in connection with export sales
to the European Union was a difference affecting price comparability under Article 2.4. Moreover,
contrary to Indonesia's argument, the Panel's reasoning does not imply that, when confronted with
transactions between closel y affiliated parties, investigating authorit ies may replace the expenses
actually incurred with the expenses that would have been incurred had the producing entity
obtained the service from an independent provider.
5.113. Accordingly, we find that Indonesia has n ot demonstrated that the Panel erred in its
application of Article 2.4 of the Anti-Dumping Agreement to the facts of this case.
5.114. We also find that Indonesia has not demonstrated that the Panel acted inconsistently with
Article 17.6(i) of the Anti -Dumping Agreement or Article 11 of the DSU in its analysis of
Indonesia's claim under Article 2.4 of the Anti-Dumping Agreement.
5.115. Consequently, we uphold the Panel's finding, in paragraphs 7.160 and 8.1.b.i of its Report,
that Indonesia has not demonstrated that the EU authorities acted inconsistently with Article 2.4 of
the Anti -Dumping Agreemen t by treating the mark -up paid by PT Musim Mas to ICOF -S as a
difference affecting price comparability, and therefore making a downward adjustment to the
export price.
The European Union's claim s of error regarding the Panel's findings under 5.2
Article 6.7 of the Anti-Dumping Agreement
5.116. The European Union requests us to reverse the Panel's finding that the EU authorities
acted inconsistently with Article 6.7 of the Anti -Dumping Agreement because they failed to make
available or disclose the results of the on -the-spot investigations they had conducted on the
premises of PT Musim Mas and its related companies. 259 In particular, the European Union alleges

259 European Union's other appellant's submission, para. 163 (referring to Panel Report, para. 8.1.d).

that the Panel erred by inter preting Article 6.7 as imposing an obligation to provide a document
setting out a complete description of the verification process.260
On 5 November 2010, the EU authorities sent a letter to PT Musim Mas announcing that 5.117.
they would conduct on -the-spot investigations at the premises of PT Musim Mas in Indonesia and
at certain of its related companies, including ICOF -S in Singapore. 261 These visits occurred in the
course of November 2010. 262 The EU authorities informed PT Musim Mas of their provisional
findings on 11 May 2011263, and of their definitive findings on 2 6 August 2011.264 On 8 November
2011, the European Union issued the Final Determination imposing a definitive anti -dumping duty
on imports of fatty alcohols from, inter alia , Indonesia.265 The duty for PT Musim Mas was
confirmed by the Revised Determination of 11 December 2012.266
We begin with a brief overview of the relevant Panel findings before turning to our 5.118.
interpretation of Article 6.7 of the Anti -Dumping Agreement. Thereafter, we consider whether the
Panel erred, either in its interpretation or application of Article 6.7, in reaching the above finding.
5.2.1 The Panel's findings
5.119. Before the Panel, Indonesia argued that the disclosure to the investigated Indonesian
producers did not meet the requirements of Article 6.7 of the Anti-Dumping Agreement because no
separate report wa s made available following the verification visits 267 and because the disclosure
of essential facts contained only general and cursory statements that did not properly disclose the
"results" of the verification visits.268 Indonesia argued that the lack of proper disclosure prevented
the investigated producers from defending their interests and, in particular, that it prevented
PT Musim Mas from effectively defending its interests on the issue of th e existence of a "single
economic entity" in the subsequent stages of the proceedings.269
5.120. In response, the European Union submitted that it had complied with Article 6.7 by either
"making available" or "disclosing" the results of the verification visits to the investigated producers
and, in particular, by informing the Indonesian interested parties beforehand about the information
that was going to be verified, providing a list of exhibits collected during on-the-spot
investigations, and providing the result s of the verification visits as part of the general disclosure
of essential facts to Indonesian exporters and through the communication of a company-specific
report.270
5.121. The Panel's analysis focused on the meaning of the phrase "results of any such
investigations" in Article 6.7 of the Anti -Dumping Agreement . The Panel found that Article 6.7
elaborates on the more general obligation in Article 6.6 for investigating authorities to "satisfy
themselves as to the accuracy of the information supplied by interested parties upon which their
findings are based". On this basis, the Panel found that the purpose of on -the-spot investigations

260 European Union's other appellant's submission, para. 82.
261 Letter dated 5 November 2010 from European Commission to CMS Hasche Sigle concerning AD563
and PT Musim Mas (Panel Exhibit EU-1).
262 See CMS Hasche Sigle, Company-internal memorandum dated 22 November 2010 concerning
"Inspection Visit Medan 22-25.11.2010" (Panel Exhibit IDN-27 (BCI)) and CMS Hasche Sigle, Company-internal
memorandum dated 18-19 November 2010 concerning "Minutes Inspection Visit Singapore 18.11.2010"
(verification of ICOF-S) (Panel Exhibit IDN-38 (BCI)).
263Letter dated 11 May 2011 from the European Commission to CMS Hasche Sigle concerning
AD563 Disclosure of provisional findings and PT Musim Mas (Panel Exhibit EU-2 (BCI)).
264 Letter dated 26 August 2011 from the European Commission to CMS Hasche Sigle concerning
AD563 Definitive Disclosure and PT Musim Mas (PTMM) (Disclosure of definitive findings dated 26 August 2011)
(Panel Exhibits EU-10 (BCI) and IDN-17 (BCI) (excerpt)).
265 Panel Report, para. 2.1.
266 Panel Report, para. 2.2.
267 Panel Report, para. 7.209 (referring to Indonesia's first written submission to the Panel, para. 6.50;
and second written submission to the Panel, para. 4.3).
268 Indonesia's first written submission to the Panel, paras. 6.6-6.12 and 6.52-6.54.
269 Panel Report, para. 7.213 (referring to Indonesia's first written submission to the Panel, para. 6.60).
270 Panel Report, para. 7.216 (referring to European Union's first written submission to the Panel,
paras. 190-195; and second written submission to the Panel, para. 168 and fns 121 and 123 thereto).

is to enable the investigating authorities to confirm the accuracy of the information supplied by the
investigated firms.271
5.122. Furthermore, the Panel considered that on-the-spot investigations involve a specific means
by which investigating authorities request the exporter to supply evidence demonstrating the
accuracy of the information supplied by the entities subject to verification . For the Panel,
therefore, the "results" of the verification visit, in the sense of Article 6.7 , should reflect the
outcome of this process. The Panel held that, at a minimum, the authorities should disclose the
part of the questionnaire response or other info rmation supplied for which supporting evidence
was requested, whether any further information was requested, and whether documents were
collected by the authorities. Further, the results of the verification should state whether the
producer made available the evidence and additional information requested and indicate whether
the investigating authorities were or were not able to confirm the accuracy of the information
supplied by the verified companies in, inter alia, their questionnaire responses.272
5.123. The Panel further noted that the panel in Korea – Certain Paper had found that disclosure
pursuant to Article 6.7 must contain "adequate information regarding all aspects of the
verification".273 The Panel contrasted the text of Article 6.7 with that of Article 6.9 of the
Anti-Dumping Agreement and noted that, while the disclosure obligation under the latter provision
is limited to "essential facts", the disclosure obligation under Article 6.7 relates to "results", rather
than to "essential" results.274 From this, the Panel concluded that the obligation to make available
the results of on -the-spot investigations is not limited to the "essential" results of such
investigations, nor to the facts that will eventually form the basis of the decision to impose
anti-dumping measures.275
5.124. The Panel then turned to assess whether the European Union had complied with Article 6.7
in this case. The Panel noted the European Union's argument that it had satisfied the obligation in
Article 6.7 by providing information to PT Musim Mas in the following three documents: (i) the
Disclosure of definitive findings dated 26 August 2011 276; (ii) the provisional company -specific
disclosure concerning PT Musim Mas of May 2011277; and (iii) the list of exhibits collected on site
by the EU author ities during the on -the-spot investigations cond ucted at the headquarters of
PT Musim Mas.278
5.125. The Panel examined each of these documents in order to assess whether they contain,
individually or in combination, information that could be characterized as the "results" of the
verification visits conducted by the EU authorities. Ultimately, the Panel concluded that the
EU authorities had not made available or disclosed the "results of any such investigations" to
PT Musim Mas, as required by Article 6.7, because t hey failed to explain those parts of the
questionnaire response or other information supplied for which supporting evidence was requested
and because they also failed to explain: (i) whether further information was requested;
(ii) whether PT Musim Mas and its related companies had made available the evidence and
additional information requested; and (iii) whether the EU authorities were or were not able to
confirm the accuracy of the information supplied by the verified companies in, inter alia , their
questionnaire responses.279
5.126. Accordingly, the Panel concluded that the European Union had not complied with
Article 6.7 of the Anti-Dumping Agreement.

271 Panel Report, para. 7.222.
272 Panel Report, para. 7.224.
273 Panel Report, para. 7.209 (quoting Panel Report, Korea – Certain Paper, para. 7.192) (emphasis
added by the Panel).
274 Panel Report, para. 7.226.
275 Panel Report, para. 7.226.
276 Panel Report, para. 7.231 (referring to AD563 Disclosure of definitive findings dated 26 August 2011
(Panel Exhibit EU-10 (BCI))).
277 Panel Report, para. 7.231 (referring to European Union's response to Panel question No. 49,
para. 44; second written submission to the Panel, para. 166; and Provisional Company-Specific Disclosure to
PT Musim Mas, Annex 2: Calculation of dumping margin (Panel Exhibit IDN-33 (BCI))).
278 Panel Report, para. 7.231 (referring to List of exhibits provided by the Commission to PT Musim Mas
at the conclusion of three verification visits (Panel Exhibit EU-14 (BCI))).
279 Panel Report, para. 7.236.

Interpretation of Article 6.7 5.2.2
5.127. On appeal, the European Union's claim of error raises the question of the scope o f the
"results" of the on -the-spot investigation that must be made available or disclosed pursuant to
Article 6.7 of the Anti -Dumping Agreement. In particular, the European Union argues that the
results of the investigation are the essential factual outcomes of the on -the-spot investigations,
which may bear on the investigating authorities' decision whether to impose an anti -dumping
measure, and the content of any such measure. 280 Indonesia responds that the European Union
conflates the requirements of Article 6.7 regarding the disclosure of the results of verification
visits, and those of Article 6.9 regarding the disclosure of ess ential facts. Indonesia argues that
these concepts are different, and that the results to be made available or disclosed pursuant to
Article 6.7 are not limited to the "essential" results of the verification visits.281
5.128. Article 6.7 of the Anti-Dumping Agreement provides:
Article 6
Evidence
6.7 In order to verify information provided or to obtain further details, the
authorities may carry out investigations in the territory of other Members as required,
provided they obtain the agreement of the firms concerned and notify the
representatives of the government of the Member in question, and unless that
Member objects to the investigation. The procedures described in Annex I shall apply
to investigations carried out in the territory of other Members. Subject to the
requirement to protect confidential information, the authorities shall make the results
of any such investigations available, or shall provide disclosure thereof pursuant to
paragraph 9, to the firms to which they pertain and may make such results availab le
to the applicants.
5.129. We note that , pursuant to Article 6.7, i nvestigating authorities may carry out
investigations. Authorit ies are therefore not obliged to conduct an on -the-spot investigation. 282
However, when an on-the spot investigation is carried out, the "results" must be provided to the
firm subject to such investigation . This disclosure may take place either as a discrete step in the
overall investigation, or together with the disclosure of the "essential facts" pursuant to Article 6.9.
5.130. The first sentence of Article 6.7 indicates that this provision is concerned with two specific
aspects of the treatment of evidence, namely, verifying information provided to the investigating
authorities, and obtaining furth er information. In identifying the verification of information
provided to the authorities as a purpose of on -the-spot investigations, Article 6.7 is linked to the
general obligation in Article 6.6 for investigating authorities to "satisfy themselves as to the
accuracy of the information supplied by interested parties" upon which the findings of the
authorities are based.
5.131. More detailed procedures concerning on -the-spot investigations are set out in Annex I to
the Anti-Dumping Agreement. The second sentence of Article 6.7 stipulates that these procedures
shall apply to investigations carried out in the territory of other Members. In
China - HP-SSST (EU), the Appellate Body noted that Article 6.7 lays out the basic framework on-
the-spot investigations in the territory of another Member, and that Annex I sets out further
parameters for the conduct of such investigations.283 Echoing the opening phrase of Article 6.7,

280 European Union's other appellant's submission, paras. 106-107.
281 Indonesia's appellee's submission, para. 2.18 (referring to Panel Report, para. 7.226).
282 See also Panel Reports, EC – Fasteners (China) (Article 21.5 – China), para. 7.191; Argentina –
Ceramic Tiles, fn 65 to para. 6.57; Egypt – Steel Rebar, paras. 7.326-7.327; and US – DRAMS, para. 6.78. At
the same time, we note that Article 6.7 does not grant an unlimited right for investigating authorities to carry
out investigations in the territory of another Member. Rather, Article 6.7 provides that the authorities must
obtain the agreement of the firms concerned, and they must notify the representatives of the government of
the Member in question. Moreover, investigating authorities cannot carry out an on-the-spot investigation in
the territory of another Member if that Member objects.
283 Appellate Body Report, China – HP-SSST (EU), para. 5.70.

paragraph 7 of Annex I expressly identifies the verification of information provided and obtaining
further details as the "main purpose" of on -the-spot investigations. This suggests that on-the-spot
investigations constitute one possible mechanism that investigating authorit ies may employ in
satisfying their duty under Article 6.6 to ensure the accuracy of information supplied by interested
parties.
5.132. Article 6.7 distinguishes between two different groups of recipients with regard to the
obligation to make available or disclose the results of the on -the-spot investigations: (i) the
investigated firms to which the information pertains; and (ii) the applicants, that is, those entities
of the domestic industry that initiated the anti-dumping investigation. If investigating authorit ies
opt to carry out on -the-spot investigations, then they "shall" commu nicate the results to the
investigated firms. However, with regard to the applicants, the wording is permissive. Thus,
investigating authorit ies are not obliged to communicate the results of the on-the-spot
investigations to the applicants.
5.133. With regard to the information to be provided, Article 6.7 stipulates that the "results" of
on-the-spot investigations shall be made available or disclosed . We note that definitions of the
word "result" include the "effect, consequence, or outcome of some action, process , or design".284
In Article 6.7, the word "results" thus refers to the outcome of the on -the-spot investigations. We
further observe that the word "results" is not explicitly limited or qualified in this provision.
5.134. We consider that the "results" of on-the-spot investigations are necessarily connected to
the overall process of such investigations. Paragraph 7 of Annex I provides that such investigations
should generally be carried out after the investigating authorit ies have received the responses to
the questionnaires used in the anti -dumping investigation. Thus, this process will usually relate to
information that has already been provided to the investigating authorit ies by the relevant
producer or interested party in response to a request by the investigati ng authorities. Moreover,
the process involves an on -site visit aimed at verifying the accuracy of such information and
soliciting additional relevant information. Paragraph 7 of Annex I further indicates that the process
requires that the firms concerned be advised in advance of the general nature of the information
to be verified and of any other information to be provided. Such advance notice forms part of the
process of the on -the-spot investigation and it also informs the scope of the "results" that mu st
subsequently be made available. Accordingly, the scope of the on-the-spot investigations and the
ensuing results to be communicated to the investigated firms vary from case to case, and are
informed by the integral parts of the proces s of the on-the-spot investigations, which include the
questions posed by the investigating authorities, the responses thereto, the scope of the advance
notice, and the collection of any additional evidence during the on-the-spot investigation.
5.135. Furthermore, we consider that the "results" of on -the-spot investigations encompass both
the fact that certain information could be verified, as well as the fact that certain information could
not. Some parts of an on-the-spot investigation may confirm the accuracy of information already
provided and other parts of the same on-the-spot investigation may fail to do so or even
demonstrate that certain information originally provided is inaccurate or incomplete. Whether or
not these parts confirm the accuracy of information , they all const itute "results" of the
on-the-spot investigation.
5.136. This is not to suggest that disclosure of the results of on -the-spot investigations must
address each item of information or each piece of evidence reviewed by the investigating
authorities. The extent to w hich specific types or items of information and evidence were verified
or collected during the on-the-spot investigation needs to be disclosed will depend in each case on
what information is requested by and provided to the investigating authorities and how the process
of ensuring its accuracy unfolds during the specific verification visits.
5.137. We consider that the remainder of Article 6, within which Article 6.7 is situated, is helpful
for understanding what "results" must be communicated by the investigating authorities. Article 6
is entitled "Evidence" and contains fourteen paragraphs relating to the treatment of evidence in an
anti-dumping investigation. The rules concerning the conduct of on -the-spot investigations are
thus situated within a broader set of provisions regulating the process of identifying and gathering

284 Oxford English Dictionary online, definition of "result":
http://www.oed.com/view/Entry/164061.

evidence in anti-dumping duty investigations. 285 The Appellate Body has noted that Article 6, in
addition to laying down evidentiary rules that apply throughout the course of an anti -dumping
investigation, speaks to the due process rights that are enjoyed by interested parties during the
investigation.286
5.138. Due process is promoted in various ways in the provisions of Article 6. For example,
Article 6.2 stipulates that , throughout the anti -dumping investigation, all interested parties shall
have a full opportunity for the defence of their interests. In addition, Article 6.4 serves a due
process function by requiring authorities, whenever practicable, to provide timely opportunities for
all interested parties to see all information that is relevant to the presentation of their cases, that
is not confidential, and that is used by the authorities in an anti -dumping investigation. Article 6.4
also fosters due process by providing that the interested parties are to be given timely opportunity
to prepare presentations on the basis of this information. Similarly, Article 6.9 articulates an
aspect of due process in providing that disclosure of essential facts shall take place in time for the
parties to be able t o defend their interests. In short, due process as set out in the various
provisions of Article 6 requires affording an investigated firm a meaningful opportunity to defend
its interests. This context supports the view that, under Article 6.7, investigated firms must be
informed of the "results" in sufficient detail and in a timely manner so as to be placed in a position
to defend effectively their interests in the remaining stages of the anti-dumping investigation.
5.139. In our view, a meaningful exercise of an investigated firm's opportunity to defend its
interests throughout the anti -dumping investigation pursuant to Article 6.2 is closely tied to the
availability of information regarding the evidence being considered by the investigating authorities.
In order to defend effectively their interests, the firms to which the results of the investigation
pertain must be a ccorded access to the results of the verification visits, regardless of whether
information could or could not be verified. This is so because infor mation that was successfully
verified, just as information that could not be verified, may be relevant to the presentation of the
interested parties' cases.287
5.140. In sum, on -the-spot investigations are one mechanism that investigating authorities may
employ in satisfying their duty, under Article 6.6 of the Anti -Dumping Agreement, to ensure the
accuracy of information supplied by interested parties. When on -the-spot investigations are
conducted, Article 6.7 requires that the firms subject to such visits be prov ided with the "results",
or outcomes, of this verification process. The scope of the on-the-spot investigations and the
ensuing results to be communicated to the investigated firms var y from case to case and are
informed by the integral parts of the proces s of the on -the-spot investigations, which include the
questions posed by the investigating authorities, the responses thereto, the scope of the advance
notice, and the collection of any additional evidence during the on -the-spot investigation s. The
disclosure of the "results" of the on-the-spot investigation must enable the firms to which they are
communicated to discern the information that the authorities considered to have been successfully
verified, as well as the information that could not be verified , and to be informed of the results in
sufficient detail and in a timely manner so as to be placed in a position to defend effectively their
interests in the remaining stages of the anti-dumping investigation.
5.141. With these considerations in mind , we turn to assess of whether the Panel erred in its
interpretation of Article 6.7 or in finding that the EU authorities acted inconsistently with
Article 6.7 of the Anti-Dumping Agreement by failing to make available or disclose the "results " of
the on-the-spot investigations to PT Musim Mas.
5.2.3 Whether the Panel erred in its interpretation of Article 6.7
5.142. The European Union contends that the Panel erred by interpreting Article 6.7 of the
Anti-Dumping Agreement as imposing an obligation to provide a document s etting out a complete
description of the verification process. 288 In particular, the European Union takes issue with the

285 Appellate Body Reports, China – HP-SSST (EU), para. 5.73; EC – Tube or Pipe Fittings, para. 138;
EC – Bed Linen (Article 21.5 – India), para. 136; US – Carbon Steel (India), para. 4.418.
286 Appellate Body Report, China – HP-SSST (EU), para. 5.73.
287 In this respect, we note that, pursuant to Article 6.8 of the Anti-Dumping Agreement, investigating
authorities may, under certain circumstances, have recourse to facts available.
288 European Union's other appellant's submission, para. 82.

content of paragraph 7.224 of the Panel Report, where the Panel found that the "results" of the
verification process must include "at a m inimum" five specific elements. The European Union
alleges that it does not follow from the Panel's analysis of Article 6.7 that "results" in the sense of
Article 6.7 must always include these specific elements.289
For the European Union, the context provided by other paragraphs of Article 6 suggests 5.143.
that the term "results" in Article 6.7 refers to a category of information closely related to "essential
facts" within the meaning of Article 6.9. According to the Europ ean Union, the "results of any such
investigations", together with other information available, form the universe of essential facts
considered by the investigating authorities in their determination. The European Union argues that
therefore, the "results" of the on -the-spot investigation to be disclosed are only those that may
have a bearing on the authorities' decision whether or not to impose an anti -dumping measure
and, when a measure is applied, on what that measure should be.290
5.144. For its part, Indonesia requests us to uphold the Panel's findings in paragraphs 7.236 and
8.1.d of its Report that the EU authorities acted inconsistently with Article 6.7 of the Anti-Dumping
Agreement.291 Indonesia alleges that the European Union conflates the requirements of Art icle 6.7
regarding the disclosure of the verification results with those of Article 6.9 regarding disclosure of
the essential facts. Indonesia argues that these concepts are different, and it supports the Panel's
reasoning that what must be disclosed under Article 6.7 is not limited to the "essential" results of
the verification.292
5.145. The United States supports the Panel's finding that, at a minimum, Article 6.7 requires that
the results disclosed by the authorit ies include discussion of information that was ve rified, not
verified, or corrected. The United States further submits that trivial or immaterial aspects of what
occurred during verification need not be disclosed.293
5.146. We note that the European Union's appeal focuses on statements made by the Panel in
paragraph 7.224 of the Panel Report as part of its interpretation of Article 6.7 spanning several
pages of the Report. In that paragraph, the Panel first summarized its general view regarding the
connection between the "results" of the verification visit and the process by which investigating
authorities discharge their duty to ensure the accuracy of information provided to them. The Panel
then identified five specific elements that, in its view, authorities should disclose "at a minimum".
In particular, the Panel stated:
These statements support the view that on -the-spot verifications involve a specific
means by which the authorities request the exporter to supply evidence of the
accuracy of the information supplied by the entity or entities subject to verificati on.
The "results" of the verification should thus reflect the outcome of this process. At a
minimum, the authorities should disclose the part of the questionnaire response or
other information supplied for which supporting evidence was requested, whether a ny
further information was requested, and whether documents were collected by the
authorities. Further, the results of the verification should state whether the producer
made available the evidence and additional information requested and indicate
whether the investigating authorities were or were not able to confirm the accuracy of
the information supplied by the verified companies in, inter alia, their questionnaire
responses.294
5.147. We recall our explanation above regarding the relationship of Article 6.7 with the general
obligation in Article 6.6 for investigating authorities to "satisfy themselves as to the accuracy of
the information supplied by interested parties" upon which the findings of the authorities are
based. For the reasons set out above, we agree with the first two sentences of the above -quoted
Panel statement that on-the-spot investigations involve a specific means for verifying the accuracy

289 European Union's other appellant's submission, para. 125.
290 European Union's other appellant's submission, paras. 106-107.
291 Indonesia's appellee's submission, para. 2.63.
292 Indonesia's appellee's submission, para. 2.18 (referring to Panel Report, para. 7.226).
293 United States' third participant's submission, para. 74.
294 Panel Report, para. 7.224.

of information supplied and t hat the "results" , in the sense of Article 6.7 , should reflect the
outcome of that verification process.295
5.148. However, the European Union appeals the Panel's further statement that , "at a minimum",
the authorities should disclose the part of the questionnaire response or other information supplied
for which supporting evidence was requested, whether any further information was requested, and
whether documents were collected by the authorities. 296 The European Union argues that the
reference in the text of Article 6.7 to the disclosure of essential facts pursuant to Article 6.9
suggests that the scope of the "results" of the on -the-spot investigation is limited to the essential
factual outcomes of the verification, which may have a bearing on the authorities' decis ion to
impose an anti-dumping measure.297
5.149. We do not view the elements listed by the Panel in paragraph 7.224 as a closed list of
items that must be included in every disclosure of the results of an on -the-spot investigation, or
that will always suffice to meet the requirements of Article 6.7. Nor do we understand the Panel to
have implied this. While disclosure of this information will typically be required, additional
information may need to be disclosed in some cases, and less information may suffice in oth ers.
This comports with our view, expressed above, that the scope of on -the-spot investigations and
the ensuing "results" to be communicated to the investigated firms vary from case-to-case.
5.150. Like the Panel298, we disagree with the European Union that the ref erence to Article 6.9 in
Article 6.7 suggests that the scope of the "results" of on -the-spot investigations to be disclosed is
limited to results that are "essential". Article 6.7 identifies two ways in which investigating
authorities may communicate the results of an on-the-spot investigation to the firms to which they
pertain. The authorities shall either make the results of the investigation available, or they shall
provide disclosure thereof to the firms to which they pertain pursuant to Article 6.9. In the latter
case, the results of the on -the-spot investigation are disclosed to the firms to which they pertain
along with the "essential facts" under consideration, which form the basis for the imposition of the
anti-dumping measure. Article 6.7 and Artic le 6.9 contain distinct obligations, each of which
applies regardless of whether the "results" of the on -the-spot investigations are disclosed around
the same time as the "essential facts" or separately. The fact that the "results" of an on-the-spot
investigation may be disclosed at the same time as the "essential facts" has no bearing on the
scope of the "results" of the on-the-spot investigation to be disclosed.
5.151. We consider the Panel's statement that the authorities should disclose the part of the
questionnaire response or other information supplied for which supporting evidence was
requested, whether any further information was requested, and whether documents were collected
by the authorities, to be concordant with our interpretation of Article 6.7 above . In particular, we
have explained the link between the scope of the "results" to be disclosed and the process of the
on-the-spot investigation and the specific steps that occur within that process. We concluded that
the "results" of the verification are c onnected to and informed by the questions posed by the
investigating authorities, the responses thereto, the advance notice provided by the authorities to
the investigated firm, and the additional evidence collected during the on -the-spot investigation.
Moreover, the text of Article 6.7 expressly states that on -the-spot investigations shall serve to
"obtain further details". Thus, the question of whether further details were requested and obtained
describes a "result" of the verification process and , accordingly, we agree with the Panel that this
forms part of the information to be disclosed pursuant to Article 6.7.
5.152. The European Union also challenges the Panel's statement that the results of the
verification should state whether the producer made available t he evidence and additional
information requested and indicate whether the investigating authorities were or were not able to
confirm the accuracy of the information supplied by the verified companies. 299 We recall that the
purpose of on -the-spot investigatio ns is the verification of the information provided by the

295 Panel Report, para. 7.224.
296 European Union's other appellant's submission, para. 162 (referring to Panel Report, paras. 7.224
and 7.228).
297 European Union's other appellant's submission, paras. 106-107.
298 Panel Report, para. 7.226.
299 European Union's other appellant's submission, para. 162 (referring to Panel Report, paras. 7.224
and 7.228).

investigated firms. In this regard, we have noted that paragraph 7 of Annex I to the Anti-Dumping
Agreement provides that the "main purpose" of on -the-spot investigations is to verify information
provided or to obtain further details. We consider the question of whether or not the investigating
authorities were able to confirm the accuracy of the information supplied by the verified companies
to be a key "result" of on -the-spot investigations described in Article 6.7. Moreover, we consider
the due process function of the disclosure requirement supports the view that the "results" of
on-the-spot investigations also include the response to the question of whether or not the accuracy
of certain information could be verified . This is because the ability of all interested parties to
defend their interests requires that they be informed in a timely manner of the extent to which the
investigating authorit ies considered information to have been verified. Accordingly, we consider
that both the fact that the accuracy of information was confirmed and the fact that the accuracy of
information could not be confirmed constitute "outcomes" of the verification exercise and are thus
"results" that must be disclosed pursuant to Article 6.7.
5.153. In light of the above considerations, we emphasize that the scope of on -the-spot
investigations and the ensuing "results" to be communicated to the investigated firms vary from
case to case. We do not view the elements listed by the Panel in paragraph 7.224 of its Report as
constituting a closed list of items that must be included in every d isclosure of the results of an
on-the-spot investigation, or that will necessarily satisfy the requirements of Article 6.7. Nor do we
understand the Panel to have implied this. We therefore consider that the Panel did not err in its
explanation of the scope of on-the-spot investigations and the results thereof to be communicated
to the investigated firms.300
5.2.4 Whether the Panel erred in finding that the EU authorities failed to make
available or disclose the results of the on-the-spot investigations to PT Musim Mas
5.154. Finally, we turn to the European Union's claim that the Panel erred in the application of
Article 6.7 of the Anti-Dumping Agreement. In this respect, the European Union highlights that the
verified company, PT Musim Mas, cooperated with the EU authorities and that , as a result of the
verification visit, the corrections to be made to the original responses were agreed between the
company and the EU authorities. The European Union further explains that a list of documents
collected during the verification was drafted jointly by the investigating team and the verified firm .
For the European Union, the Panel erred in denying any relevance to these factual elements.301
5.155. We recall that in November 2010 the EU authorities conducted on -the-spot investigations
at the premises of PT Musim Mas in Indonesia and at certain of its related companies , including
ICOF-S in Singapore.302 The EU authorities informed PT Musim Mas of their provisional findings on
11 May 2011, and of their definitive findings on 26 August 2011.303
5.156. In response to Indonesia's allegation before the Panel that the European Union failed to
disclose the "results" of the on -the-spot investigations, the European Union contended that those
"results" had been disclosed in the following documents: (i) the Disclosure of definitive findings
dated 26 August 2011 304; (ii) the provisional company -specific disclosure concerning PT Musim

300 Panel Report, para. 7.224.
301 European Union's other appellant's submission, paras. 117-118.
302 Letter dated 5 November 2010 from the European Commission to CMS Hasche Sigle concerning
AD563 and PT Musim Mas (Panel Exhibit EU-1); CMS Hasche Sigle, Company-internal memorandum dated
22 November 2010 concerning "Inspection Visit Medan 22-25.11.2010" (Panel Exhibit IDN-27 (BCI)); and CMS
Hasche Sigle, Company-internal memorandum dated 18-19 November 2010 concerning "Minutes Inspection
Visit Singapore 18.11.2010" (verification of ICOF-S) (Panel Exhibit IDN-38 (BCI)).
303 Disclosure of definitive findings dated 26 August 2011) (Panel Exhibit EU-10 (BCI)).
304 Panel Report, para. 7.231 (referring to Disclosure of definitive findings dated 26 August 2011 (Panel
Exhibit EU-10 (BCI)). The Panel noted that the Disclosure of definitive findings sent to PT Musim Mas on
26 August 2011 included three annexes: the General Disclosure Document, which was attached as Panel
Exhibit IDN-39; the Definitive dumping calculation; and the company-specific reply to arguments not
addressed in detail in the General Disclosure Document.

Mas of May 2011305; and (iii) the list of exhibits collected on site by the EU authorities during the
on-the-spot investigations conducted at the headquarters of PT Musim Mas.306
5.157. With respect to the Disclosure of definitive findings dated 26 August 2011307, the Panel
found that the information contained in this document was largely unrelated to the on -the-spot
investigations at issue , beca use it refers to verification visits conducted at the premises of
investigated producers in Malaysia and India, and at the premises of enterprises forming part of
the EU domestic industry . The Panel noted that only one recital of the document refers in pas sing
to the verification visits at PT Musim Mas, and found that this was insufficient to comply with the
requirements of Article 6.7.308
5.158. The Panel then considered the company -specific disclosure documents provided to
PT Musim Mas at the provisional stage of the investigation and the list of exhibits agreed with
PT Musim Mas at the end of the on -the-spot investigation. The Panel noted that the
company-specific disclosure documents include a confidential appendix containing an electronic
copy of the company's r esponse to the anti -dumping questionnaire and that this copy reflects the
corrections made to PT Musim Mas' electronic response by PT Musim Mas itself and by the
EU authorities following the verification visits.309
5.159. In this respect, the Panel agreed with the European Union that the corrections made to
PT Musim Mas' original questionnaire response and the lists of exhibits collected on -the-spot are
outcomes of the verification visit. 310 However, the Panel concluded that the various documents,
taken together, did not comprise the full extent of the "results" of the on -the-spot investigation,
because they failed to put PT Musim Mas or the Panel in a position to understand in respect of
which part of the questionnaire response or other information supplied supporting evidence had
been requested. Similarly these documents did not convey whether any further information had
been requested, whether PT Musim Mas had made available the evidence and additional
information requested, and whether the EU authorities had or had not been able to confirm the
accuracy of the information supplied by PT Musim Mas. 311 In particular, the Panel explained that ,
by looking at the "List of electronic files" attached to the confidential company -specific disclosure,
one can understand that som e of the original worksheets provided by PT Musim Mas were
corrected during the verification visit, but that it was impossible to relate the corrections made to
any evidence that was verified or not verified by the EU authorities during the on-the-spot
investigations.312
5.160. The European Union takes issue with these Panel findings. The European Union contends
that the interaction between the EU authorities and the officers of the verified company shows that
PT Musim Mas understood which part of the questionnaire response had been verified, as well as
the EU authorities' assessment of the information provided and verified.313
5.161. Based on our analysis above, we consider that Article 6.7 imposes an objective standard to
determine which "results" have to be disclosed subs equent to verification. It does not call for an
inquiry into what the employees of the firm subject to the verification visit understood at the time
of that visit. In any event, we do not see that the Panel erred in considering that the EU authorities
had not identif ied which elements of the information provided by the investigated firm in its
questionnaire response they had sought to verify, which elements they had been able to verify
successfully, and which elements they had been unable to verify. We have found above that the
requirement to disclose the results of a verification visit requires that such information be provided

305 Panel Report, para. 7.231 (referring to European Union's response to Panel question No. 49,
para. 44; second written submission to the Panel, para. 166; and Provisional Company-Specific Disclosure to
PT Musim Mas, Annex 2: Calculation of dumping margin (Panel Exhibit IDN-33 (BCI))).
306 Panel Report, para. 7.231 (referring to List of exhibits provided by the Commission to PT Musim Mas
at the conclusion of three verification visits (Panel Exhibit EU-14 (BCI))).
307 Panel Exhibit IDN-39.
308 Panel Report, para. 7.232.
309 Panel Report, para. 7.233 (referring to Excel file "PTMM definitive disclosure.xls" (Panel Exhibit EU-12
(BCI))).
310 Panel Report, para. 7.235.
311 Panel Report, para. 7.235.
312 Panel Report, para. 7.235.
313 European Union's other appellant's submission, para. 159.

to the investigated firm because the ability of all interested parties to defend fully their interests
depends also on an understan ding of what information the investigating authorit ies considered to
have been verified.
5.162. Moreover, we consider that the Panel correctly assessed whether the documents disclosed
to PT Musim Mas enabled it to understand whether the EU authorities had or had not been able to
confirm the accuracy of the information supplied. In this respect , we note the Panel's observation
that several worksheets were amended on the basis of Exhibit 1, which is described in Panel
Exhibit EU-14 as "Corrections to Tables (hard co py + CD -ROM with 6 Excel files)". 314 The Panel
further noted that Exhibits 8, 17 , and 21 collected during the on-the-spot investigations are the
corrected versions of PT Musim Mas ' original response for worksheets 2.6, 2.4, and 2.2
respectively.315 However, th e Panel found that , on the basis of these documents, it was not
possible to tell whether the changes and corrections were made as a result of what happened
during the verification visits or for some other reason. In this respect, the Panel referred , as an
example, to corrections made to the Worksheet 2.2, Cost of Production table for PT Musim Mas .
The Panel explained that it could not discern if these corrections had been made by the company
itself or if they had resulted from the verification by EU authorities of the company's cost of
production, or from the correction of mathematical errors made in the original submission.316
5.163. The Panel took the view that the disclosure of the results of the on -the-spot investigations
in this case did not allow PT Musim Mas to understand whether the EU authorities had or had not
been able to confirm the accuracy of the information supplied. On appeal, the European Union has
not established that the Panel erred in applying Article 6.7 when reviewing the disclosure ma de to
PT Musim Mas. Accordingly, we find that the Panel did not err in concluding that the EU authorities
did not comply with the obligation to make available or disclose the "results of any such
investigations" to PT Musim Mas, as required by Article 6.7 of the Anti-Dumping Agreement.
5.2.5 Conclusion
5.164. We have found that on -the-spot investigations are one mechanism that investigating
authorities may employ in satisfying their duty, under Article 6.6 of the Anti -Dumping Agreement,
to ensure the accuracy of informa tion supplied by interested parties. When such on -the-spot
investigations are conducted, Article 6.7 requires that the firms subject to such visits be provided
with the "results", or outcomes , of this verification process. The scope of on -the-spot
investigations and the ensuing "results" to be communicated to the investigated firms vary from
case to case, and are informed by the integral parts of the process of the on -the-spot
investigations, which include the questions posed by the investigating authoritie s, the responses
thereto, the scope of the advance notice, and the collection of any additional evidence during the
on-the-spot investigation s. In addition, t he disclosure of the "results" of the on -the-spot
investigations must enable the firm s to which they are communicated to discern the information
that the authorities considered to have been successfully verified, as well as the information that
could not be verified, and to be informed of the results in sufficient detail and in a timely man ner
so as to be placed in a position to defend effectively their interests in the remaining stages of the
anti-dumping investigation.
5.165. On this basis, we find that the Panel did not err in its interpretation or application of
Article 6.7 in determining the scope of the on -the-spot investigations and the ensuing "results" to
be communicated to the investigated firms. Consequently, we uphold the Panel's finding , in
paragraphs 7.236 and 8.1.d of its Report, that the EU authorities failed to make available or
disclose the "results of any such investigations" to PT Musim Mas, and therefore acted
inconsistently with Article 6.7 of the Anti-Dumping Agreement.

314 Panel Report, fn 578 to para. 7.235 (referring to "List of exhibits provided by the European
Commission to PT Musim Mas at the conclusion of three verification visits" (Panel Exhibit EU-14 (BCI))).
315 Panel Report, fn 578 to para. 7.235 (referring to "List of exhibits provided by the European
Commission to PT Musim Mas at the conclusion of three verification visits" (Exhibit EU-14 (BCI)).
316 Panel Report, fn 579 to para. 7.235 (referring to Worksheet 2.2 of Panel Exhibit EU-12, Cost of
Production table for PT Musim Mas, showing corrections made from the combined exhibits 1 and 21).

5.3 The European Union's claims under Articles 3 and 19 of the DSU
The European Union requests us to dismiss Ind onesia's appeal in its entirety as 5.166.
inconsistent with Article 3 of the DSU because it relates to an expired measure and, for that
reason, to find it unnecessary to rule on the substance of Indonesia's appeal .317 In its opening
statement at the oral hearing, the European Union framed its request as seeking a finding that the
present dispute has been resolved and that the relevant issues have therefore become moot.
5.167. The European Union also requests us to find that the Panel erred in making a
recommendation pursua nt to Article 19.1 of the DSU even though the measure at issue had
expired.318
5.168. We begin by addressing the European Union's allegation that Indonesia's appeal is
inconsistent with Article 3 of the DSU. In the event that we find such an inconsistency, we will
consider the consequences of such a finding and, in particular, the European Union's request to
find it unnecessary to rule on the appeal and/or declare the Panel's findings moot and of no legal
effect. Thereafter, we turn to the separate request by the Eu ropean Union to find that the Panel
erred in making a recommendation pursuant to Article 19.1 of the DSU with respect to an expired
measure.
5.3.1 The European Union's request to dismiss Indonesia's appeal as inconsistent with
Article 3 of the DSU
5.3.1.1 Procedural background
5.169. The Panel issued its final report to the parties to the dispute on 23 September 2016. While
that report was being translated, and before the Panel Report was circulated to all WTO Members,
the European Union, on 16 November 2016, sent an email to the Panel: (i) inquiring as to the date
for circulation of the Panel Report; (ii) asking for at least two weeks' advance notice of such
circulation date; (iii) informing the Panel that the measure at issue had expired on 12 November
2016; and (iv) enclosing a copy of the notice of expiry from the Official Journal of the
European Union.319 Indonesia was copied on this email.
5.170. The Panel Report was circulated to WTO Members on 16 December 2016. It contains no
reference to the above -mentioned documents and no ment ion of the expiry of the measure at
issue.
5.3.1.2 Claims and arguments on appeal
5.171. The European Union requests us to find that Indonesia's appe al is inconsistent with
Article 3 of the DSU because it relates to an expired measure and, for that reason, to find it
unnecessary to rule on the substance of Indonesia's appeal. 320 Conditional upon being granted this
relief, the European Union withdraws all other elements of its other appeal pursuant to Rule 30 of
the Working Procedures.321
5.172. The European Union argues that almost all paragraphs of Article 3 of the DSU, as well as
WTO case law, support the proposition that an appeal is not appropriate when the measure at
issue is withdrawn or has expired during the panel proceedings. 322 The European Union presents
specific arguments in relation to various paragraphs of Article 3 of the DSU. We address these
arguments below in the context of our legal analysis.

317 European Union's other appellant's submission, para. 4.
318 European Union's other appellant's submission, para. 23.
319 European Commission, Notice of the expiry of certain anti-dumping measures, Official Journal of the
European Union, C Series, No. 418 (12 November 2016), p. 3.
320 European Union's other appellant's submission, paras. 4 and 21.
321 European Union's other appellant's submission, para. 21.
322 European Union's other appellant's submission, para. 6.

5.173. Indonesia, for its part, requests us to reject the European Union's request not to rule on
the substance of the matter raised by Indonesia.323 Indonesia submits that the Appellate Body's
jurisdiction is governed by Article 17 of the DSU, and that the European Union has failed to point
to any basis suggesting that Indonesia's appeal is inconsistent with th is provision. Indonesia refers
to Article 17.12 of the DSU, which states that the Appellate Body shall address each of the issues
raised in accordance with Article 17.6 in appellate proceedings, and asserts that the
Appellate Body would fail to comply with this duty if it were to de cline to rule on Indonesia's
appeal.324
5.174. The United States supports Indonesia's position. In particular, the United States submits
that the expiry of the measure at issue is not a fact that was found by the Panel, and that the
Appellate Body is, for that reas on, precluded from considering the expiry of the measure at
issue.325 The United States adds that, in any event, because the Panel was tasked with
determining whether the measure at issue was consistent with the covered agreements at the time
of the establishment of the Panel, any expiry of the measure at issue just before circulation of the
Panel Report was irrelevant to the Panel's analysis.326
5.3.1.3 Whether Indonesia's appeal is inconsistent with Article 3
5.175. At the outset of our analysis, we note that it is unconte sted by the participants that the
measure at issue has expired.327 We recall that appellate review is governed primarily by Article 17
of the DSU. In particular, Article 17.4 stipulates that the parties to the dispute may appeal a panel
report. It also provi des that third parties have no right to appeal a panel report. However,
Article 17.4 does not impose limitations on the parties' right to appeal a panel report.
5.176. Article 17.12 of the DSU provides that the Appellate Body shall address each of the issues
raised in accordance with Article 17.6 of the DSU during appellate proceedings. Article 17.6
stipulates that an appeal shall be limited to issues of law covered in the panel report and legal
interpretations developed by the panel. Neither of these provisions c ontains any indication that
expired measures are excluded from appellate review or that it might be unnecessary for the
Appellate Body to rule on such measures.
5.177. We note that, in some cases, the Appellate Body has decided that it was not necessary to
rule on a particular claim of error. 328 However, the European Union's appeal under Article 3 of the
DSU in the present case is different from such situations. While the Appellate Body has
occasionally considered it unnecessary to rule on a specific claim on appeal once it had addressed
another claim in the same appeal, the European Union's claim under Article 3 relates to
Indonesia's conduct in bringing the appeal at all. Moreover, when coupled with its own conditional
withdrawal of the appeal, the European Union i s effectively requesting us to make no ruling at all.
At the same time, it is important to note that the European Union does not contest the
Appellate Body's jurisdiction or request us to decline to exercise such jurisdiction. 329 Rather, the
European Union submits that an appeal is not appropriate, and is inconsistent with Article 3 of the
DSU, when the measure at issue has been withdrawn or has expired in the course of the panel
proceedings.
5.178. The European Union invokes several provisions of Article 3 of the D SU in support of its
position. In particular, the European Union refers to Article 3.2 330, which provides that the dispute

323 Indonesia's appellee's submission, para. 4.61.
324 Indonesia's appellee's submission, paras. 4.19 and 4.21.
325 United States' third participant's submission, para. 21.
326 United States' third participant's submission, para. 28.
327 Indonesia's appellee's submission, para. 4.15; European Union's other appellant's submission,
para. 3.
328 Appellate Body Reports, China – Auto Parts, para. 209. See also Appellate Body Reports, EU –
Biodiesel (Argentina), para. 6.89; and US – Shrimp (Thailand) / US – Customs Bond Directive, para. 285.
329 European Union's opening statement and response to questioning at the oral hearing .
330 Article 3.2 of the DSU provides:
The dispute settlement system of the WTO is a central element in providing security and
predictability to the multilateral trading system. The Members recognize that it serves to
preserve the rights and obligations of Members under the covered agreements, and to clarify the
existing provisions of those agreements in accordance with customary rules of interpretation of

settlement system of the WTO serves to preserve the rights and obligations of Members under the
covered agreements, and argues that onc e the measure at issue has expired there is nothing left
to "preserve". 331 The European Union also refers to Article 3.4 332, which provides that
recommendations or rulings made by the DSB shall be aimed at achieving a "satisfactory
settlement of the matter" in accordance with the rights and obligations under the DSU and the
covered agreements. For the European Union, when the measure at issue has expired, then a
"satisfactory settlement" of the matter has already been achieved. 333 In the same vein, the
European U nion refers to Article 3.7, which expresses as an aim of the dispute settlement
mechanism the securing of a "positive solution" to a dispute. The European Union asserts that the
first objective of the dispute settlement mechanism is usually to secure withdrawal of the measure
at issue. For the European Union, it follows that because in the present case, a positive solution to
the dispute has been achieved with the withdrawal of the measure, pursuing the appeal would be
"pointless"334, rather than "fruit ful", as required by Article 3.7 of the DSU. In addition, the
European Union refers to Article 3.10, which provides that all Members will engage in the
procedures set out in the DSU in good faith in an effort to resolve the dispute. The European Union
argues that, following the expiry of the measure, there is no longer any dispute between the
parties, and that Article 3.10 therefore also supports its view that an appeal is inappropriate in this
case.
5.179. These arguments reflect different permutations of the pro position that a dispute no longer
exists after the withdrawal of the measure at issue. However, the Appellate Body has expressly
rejected the proposition that the repeal of a measure necessarily constitutes, without more, a
"satisfactory settlement of the matter", and has recognized that benefits accruing to a Member
may be impaired by measures whose legislative basis has expired. 335 The Appellate Body has also
recognized that the fact that a measure has expired is not dispositive of the question of whether a
panel can address claims in respect of that measure. 336 Similarly, we consider that the expiry of
the measure at issue does not, without more, render it unnecessary for us to rule on Indonesia's
appeal. Significantly, pursuant to Article 3.7, Members are expected to be largely self-regulating in
deciding if any action under the DSU would be "fruitful".337
5.180. As a general matter, the Appellate Body has held that it is within the panel's discretion to
decide how it takes into account subsequent modifications to, or the repeal of , the measure at
issue.338 This encompasses discretion either to make findings or not with respect to an expired
measure. In exercising this discretion, panels have considered, inter alia , whether the measure
could easily be re -imposed.339 In the present case, the European Union has not advanced specific
arguments relating to the nature of the measure at issue in support of its contention that this
dispute has been resolved. Rather, the European Union's submission focuses on the expiry of the
measure itself. However, for the reasons above, we consider that Indonesia is not barred from
pursuing an appeal just because the measure at issue has expired.
5.181. The European Union also refers to Article 3.3 of the DSU340, arguing that the reference to
"prompt settlement" in th is provision implies that additional steps in WTO dispute settlement

public international law. Recommendations and rulings of the DSB cannot add to or diminish the
rights and obligations provided in the covered agreements.
331 European Union's other appellant's submission, para. 10.
332 Article 3.4 of the DSU provides:
Recommendations or rulings made by the DSB shall be aimed at achieving a satisfactory
settlement of the matter in accordance with the rights and obligations under this Understanding
and under the covered agreements.
333 European Union's other appellant's submission, para. 12.
334 European Union's other appellant's submission, para. 15.
335 Appellate Body Report, US – Upland Cotton, para. 270.
336 Appellate Body Reports, EC – Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III
(Article 21.5 – US), para. 270.
337 Appellate Body Report, EC – Bananas III, para. 135.
338 Appellate Body Reports, EC – Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III
(Article 21.5 – US), para. 270.
339 Panel Report, India – Additional Import Duties, paras. 7.69-7.70. In particular, that panel relied upon
its observation that India faced no meaningful obstacle in reinstating the measure.
340 Article 3.3 of the DSU provides:
The prompt settlement of situations in which a Member considers that any benefits accruing to it
directly or indirectly under the covered agreements are being impaired by measures taken by

proceedings after the expiry of the measure at issue are both non -essential and contrary to the
objectives of the WTO dispute settlement system. The European Union adds t hat such proceedings
threaten to delay unnecessarily and prevent the prompt settlement of other disputes and hence
the effective functioning of the WTO dispute settlement system.341
5.182. In our view, th e European Union's reading of Article 3.3 of the DSU is at od ds with the
interpretation given by the Appellate Body in US – Upland Cotton and EC – Bananas III
(Article 21.5 – US). The Appellate Body found contextual support in Article 3.3 of the DSU for
interpreting the words "measures at issue" in Article 6.2 as no t excluding expired measures from
its scope. The Appellate Body highlighted that Article 3.3 connects the words "prompt settlement" ,
not to "existing" measures or measures "currently in force", but to "measures taken" by a
Member, which includes measures t aken in the past. 342 Thus, the proposition underpinning this
part of the European Union's argument has been expressly rejected by the Appellate Body.
5.183. The European Union further invokes Article 3.8 of the DSU, arguing that the fact that a
measure has expired constitutes at least a prima facie rebuttal of the presumption enshrined in
this provision that one Member's breach of a WTO obligation results in the nullification and
impairment of benefits enjoyed by other Members. 343 We note, however, that demonstrating
continuing nullification or impairment is not a prerequisite for pursuing an appeal.
5.184. Finally, the European Union refers to Article 3.9 344 of the DSU, and alleges that Indonesia
is using the appeal procedure to seek an authoritative interpretation of particu lar provisions of the
covered agreements, even though other procedures are set out for this purpose in the Marrakesh
Agreement Establishing the World Trade Organization ( WTO Agreement). The European Union
asserts that Indonesia is requesting clarification or interpretation of certain provisions of the
covered agreements in abstract terms, and that it is seeking an "advisory opinion" in a manner
disconnected from any ongoing dispute.345
5.185. In the present case, Indonesia has not requested an interpretation in the abstract, but the
reversal of specific findings in the Panel Report. In particular, Indonesia has requested us to
reverse the Panel's finding that the EU authorities did not act inconsistently with Article 2.4 of the
Anti-Dumping Agreement. 346 Indonesia is requesting us to review, inter alia , the
Panel's interpretation of a specific provision of the covered agreements, and, in this sense, it is
no different from other appeals brought before the Appellate Body.
5.3.1.4 Conclusion
5.186. For the reasons above, we find that, in appealing the Panel Report notwithstanding the
expiry of the measure at issue, Indonesia did not act inconsistently with Article 3 of the DSU. We
reject the European Union's requests to find it unnecessary to rule on the matter raised in
Indonesia's appeal or to declare moot and of no legal effect all of the findings and conclusions
made by the Panel.
5.3.2 The European Union's claim that the Panel erred in making a recommendation
with respect to an expired measure (Article 19.1 of the DSU)
5.187. We now turn to the European Union's appeal under Articl e 19.1 of the DSU. The
European Union requests us to find that the Panel erred because it made a recommendation with

another Member is essential to the effective functioning of the WTO and the maintenance of a
proper balance between the rights and obligations of Members.
341 European Union's other appellant's submission, para. 11.
342 Appellate Body Reports, US – Upland Cotton, para. 264; and EC – Bananas III (Article 21.5 –
Ecuador II) / EC – Bananas III (Article 21.5 – US), para. 268.
343 European Union's other appellant's submission, para. 16.
344 Article 3.9 of the DSU provides:
The provisions of this Understanding are without prejudice to the rights of Members to seek
authoritative interpretation of provisions of a covered agreement through decision-making under
the WTO Agreement or a covered agreement which is a Plurilateral Trade Agreement.
345 European Union's other appellant's submission, para. 17.
346 Indonesia's Notice of Appeal, para. 10 (referring to Panel Report, paras. 7.96-7.97, 7.160-7.161
and 8.1.b.i).

respect to an expired measure , and to reverse paragraph 8.3 of the Panel Report, in which the
Panel rec ommended that the European Union bring its measures into conformity with its
obligations under the Anti-Dumping Agreement.347 For its part, Indonesia requests us to reject the
European Union's request and to find that the Panel did not err in making a recomm endation with
respect to the measure at issue.348
5.3.2.1 The Panel's findings
5.188. In Section 8 of its Report, the Panel concluded that the European Union had acted
inconsistently with Article 6.7 of the Anti -Dumping Agreement 349 and recommended that the
European Union br ing its measures into conformity with its obligations under the Anti -Dumping
Agreement.350 The Panel Report contains no reference to the expiry of the measure at issue.
5.3.2.2 Claims and arguments on appeal
5.189. The European Union argues that , by making a recommendation with respect to an expired
measure, the Panel acted inconsistently with its obligation to make an objective assessment of the
matter before it, thereby contravening Articles 11 and 19.1 of the DSU. The European Union
contends that these provisions envisa ge a situation in which a measure (and hence a violation)
exists. However, when the measure and thus the violation have ceased to exist, it does not make
sense for a panel to make a recommendation.351
5.190. The European Union further contends that the Panel's fai lure to address, in its Report, the
European Union's communication concerning the expiry of the measure at issue constituted a
separate and additional breach of its duty under Article 11 to make an objective assessment of the
matter before it. The European Union acknowledges that it notified the Panel very late in the
proceedings. However, work still continued under the Panel's authority at that point in time such
that, for the European Union, the Panel could and should have addressed a matter as fundamenta l
as the expiry of the measure, which was not contested by Indonesia.352
5.191. For its part, Indonesia requests us to reject the European Union's request and to find that
the Panel did not err in making a recommendation with respect to the measure at issue. Indone sia
does not contest that the measure at issue has expired. 353 However, for Indonesia, the expiry of
the measure at issue occurred too late to be taken into account by the Panel. Because the
European Union notified the expiry of the measure more than three m onths after the interim
report had been issued to the parties, the Panel was no longer entitled to incorporate this fact into
its decision.354
5.192. In support of its position, Indonesia highlights that the panel in China – GOES
(Article 21.5 – US) declined to adm it as new evidence China's notification that the measure at
issue in that dispute had been terminated, because China had notified the panel only after the
interim report had been issued. 355 In addition, Indonesia refers to the panel report in
EC - Bananas III (Article 21.5 – US), explaining that the panel in that dispute declined to take into
account changes in the measure at issue, because the request to do so was made only at the
interim review stage.356
5.193. Moreover, Indonesia asserts that for the Panel to have admitted evidence concerning the
expiry of the measure at issue after the interim report had been issued would have been contrary

347 European Union's other appellant's submission, para. 23.
348 Indonesia's appellee's submission, para. 4.51.
349 Panel Report, para. 8.1.d.
350 Panel Report, para. 8.3.
351 European Union's other appellant's submission, para. 23 (referring to Appellate Body Report,
352 European Union's other appellant's submission, para. 23.
353 Indonesia's appellee's submission, para. 4.60.
354 Indonesia's appellee's submission, para. 4.52.
355 Indonesia's appellee's submission, para. 4.54 (referring to Panel Report, China – GOES
(Article 21.5 – US), paras. 6.20–6.25.
356 Indonesia's appellee's submission, para. 4.54 (referring to Panel Reports, EC – Bananas III
(Article 21.5 – Ecuador II) / EC – Bananas III (Article 21.5 – US), para. 6.18).

to paragraph 7 of the Panel's Working Procedures. This provision requires all factual evidence to be
submitted to the Panel n o later than during the first substantive meeting, except evidence
necessary for purposes of rebuttal, answers to questions and comments on answers provided by
the other party. Paragraph 7 also provides that exceptions to this procedure shall be granted on ly
upon a showing of good cause.357
5.194. Finally, Indonesia submits that the Appellate Body's mandate does not permit it to take
into account the expiry of the measure. Indonesia asserts that the Appellate Body must base its
review on the factual record as established by the panel and that no new evidence may be
admitted in the appellate proceedings.358
5.195. The United States submits that the Panel's making of a recommendation is consistent with
the requirements of the DSU. It is the challenged measures as they existed at the time of panel
establishment that are within the terms of reference. When a panel has found a measure within its
terms of reference to be inconsistent with the covered agreements, the panel must make a
recommendation.359 Moreover, the United States agrees with Indonesia that evidence regarding
the expiry of the measure at issue is not part of the Panel record, and therefore cannot be taken
into account by the Appellate Body.360
5.3.2.3 Whether the Panel erred in making a recommendation pursuant to Article 19.1
with respect to an expired measure
5.196. We begin with the text of Article 19.1 of the DSU:
Article 19
Panel and Appellate Body Recommendations
1. Where a panel or the Appellate Body concludes that a measure is inconsistent
with a covered agreement, it shall recommend that the Member concerned bring the
measure into conformity with that agreement. In addition to its recommendations, the
panel or Appellate Body may suggest ways in which the Member concerned could
implement the recommendations.361
5.197. We note that the provision refers to "a measure". It does not further qualify the "measure"
and, in particular, it does not ex clude from its scope any particular measures, such as expired
measures. We consider Article 6.2 of the DSU to have contextual relevance for the interpretation
of the term "measure" in Article 19.1, because the former provision describes the type of
measures that may fall within the ambit of panel proceedings, and thus, may ultimately be subject
to a panel's recommendation pursuant to Article 19.1. Article 6.2 stipulates:
Article 6
Establishment of Panels
2. The request for the establishment of a panel sha ll be made in writing. It shall
indicate whether consultations were held, identify the specific measures at issue and
provide a brief summary of the legal basis of the complaint sufficient to present the
problem clearly. In case the applicant requests the establishment of a panel with other
than standard terms of reference, the written request shall include the proposed text
of special terms of reference.
5.198. Article 6.2 refers to "measures at issue". The Appellate Body has noted that the words "at
issue" further qualify the "measure" in Article 6.2. The Appellate Body has also expressly rejected

357 Indonesia's appellee's submission, para. 4.55.
358 Indonesia's appellee's submission, para. 4.57 (referring to Appellate Body Report, US – Softwood
359 United States' third participant's submission, paras. 46-50.
360 United States' third participant's submission, para. 24.
361 Footnotes omitted.

the proposition that an expired measure could not be a measure "at issue" in terms of Article 6.2
of the DSU. 362 Instead, referring to the relevant context provided by Ar ticle 3.3 of the DSU , the
Appellate Body has highlighted that this provision does not refer to "existing" measures or
measures "currently in force", but to "measures taken" by a Member. Accordingly, the
Appellate Body considered this reference to encompass measures taken in the past. We consider
that Article 3.3 also has contextual relevance for the interpretation of Article 19.1, similarly
suggesting that the term "measures" in that provision is not limited to "existing" , but also covers
expired measures.
5.199. Article 19.1 further stipulates that panels and the Appellate Body "shall recommend" that
the Member concerned bring the measure into conformity with the covered agreements when they
conclude that a measure is inconsistent with a covered agreement. We atta ch significance to the
fact that Article 19.1 is expressed in mandatory terms and linked directly to the findings made by
a panel. This suggests that it is not within a panel's or the Appellate Body's discretion to make a
recommendation in the event that a finding of inconsistency has been made.
5.200. At the same time, the Appellate Body has found that the expiry of the measure may affect
what recommendations a panel may make. 363 In this vein, some panels have found it not
appropriate to make a recommendation to th e DSB after they had found that the measure was
no longer in force. 364 Other panels have made a recommendation in such circumstance, albeit
limited in scope. 365 In US – Certain EC Products , the Appellate Body found an inconsistency
between the finding of the p anel that the relevant measure was no longer in existence and the
subsequent recommendation of the panel that the DSB request the United States bring that
measure into conformity with its WTO obligations.366
5.201. We note that those cases differ from the present c ase in that the Panel in the present case
made no finding on, or mention of, the expiry of the measure at issue in the Panel Report. Absent
any finding or acknowledgement by the Panel that the measure at issue is no longer in force, there
was no basis for the Panel to have departed from the requirement in Article 19.1 of the DSU to
make a recommendation after having found that measure to be inconsistent with the covered
agreements. In this vein, we note that , while the Appellate Body has held that , as a general
matter, it is within the panel's discretion to decide how to take into account subsequent
modifications to, or the repeal of , the measure at issue 367, the Appellate Body has also clarified
that, where a measure has expired, a panel is not prec luded from making a recommendation on
such a measure.368 In light of these considerations, we conclude that the Panel in this dispute did
not err in making a recommendation pursuant to Article 19.1 of the DSU.
5.202. As a separate matter, the European Union alleges that the Panel erred by failing to refer in
its Report to the European Union's communication concerning the expiry of the measure at issue.
The European Union contends that the Panel thus failed to make an objective assessment of the
matter before it, as required by Article 11 of the DSU.
5.203. We recall that the European Union sent its communication to the Panel on 16 November
2016. At that point in time, the Panel had concluded the interim review and had issued, on
23 September 2016, its final report to the pa rties. This claim thus raises the question as to
whether the Panel could or should have considered evidence submitted after completion of all
formal procedural steps except the circulation of its Report to Members.

362 Appellate Body Reports, EC – Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III
(Article 21.5 - US), para. 268.
363 Appellate Body Report, US – Upland Cotton, para. 272.
364 Panel Reports, Dominican Republic – Import and Sale of Cigarettes, paras. 7.359–7.363,
365 For instance, the panel in Thailand – Cigarettes (Philippines) made a recommendation with respect to
expired measures "only to the extent they continue to have effects". (Panel Report, Thailand – Cigarettes
366 Appellate Body Report, US – Certain EC Products, para. 81.
367 Appellate Body Reports, EC – Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III
(Article 21.5 – US), para. 270.
368 Appellate Body Reports, China – Raw Materials, para. 264.

5.204. We note that panel proceedings consist of two main stages, the first of which involves each
party setting out its "case in chief, including a full presentation of the facts on the basis of
submission of supporting evidence", and the second is designed to permit the rebuttal by each
party of the a rguments and evidence submitted by the other parties. 369 The Appellate Body and
panels have consistently held that the interim review stage is not an appropriate time to introduce
new evidence.370 For instance, in EC – Sardines, the Appellate Body concluded th at the panel did
not act inconsistently with Article 11 of the DSU in refusing to take into account new evidence
during the interim review. 371 In the present dispute, information regarding the expiry of the
measure at issue was not submitted during interim r eview, but much later, after the final report
had been issued to the parties.
5.205. In addition, we note that paragraph 7 of the Panel's Working Procedures provides that
each party shall submit all factual evidence to the Panel no later than during the first su bstantive
meeting, except with respect to evidence necessary for purposes of rebuttal, answers to questions
and comments on answers provided by the other party. The Working Procedures further provide
that exceptions to this procedure shall be granted only upon a showing of good cause, and that ,
where such an exception has been granted, the Panel shall accord the other party a period of time
for comment, as appropriate, on any new factual evidence submitted after the first substantive
meeting.
5.206. Information re garding the expiry of the measure at issue was submitted after the time
foreseen in the Panel's Working Procedures for the submission of evidence. Accordingly, pursuant
to paragraph 7 of those Working Procedures, the European Union should have shown good c ause
for providing information at a late stage in the proceedings. However, the European Union
provided no explanation for the late submission of information regarding the expiry of the measure
at issue. Moreover, the European Union did not specifically re quest that the expiry of the measure
be addressed by the Panel in its Report.
5.207. For all of these reasons , we find that the Panel did not exceed the bounds of its discretion
by not referring to the European Union's communication concerning the expiry of the m easure at
issue in its Report.
5.3.2.4 Conclusion
5.208. We have found that , as a general matter, it is within a panel's discretion to decide how to
take into account subsequent modifications to, or the repeal of , the measure at issue. In the
absence of any finding or acknowledgement by the Panel that the measure at issue is no longer in
force, there was no basis for the Panel to have departed from the requirement in Article 19.1 of
the DSU to make a recommendation after having found that measure to be inconsistent with the
covered agreements. Accordingly, we find that the Panel did not err or act inconsistently with
Article 19.1 or Article 11 of the DSU in making a recommendation, at paragraph 8.3 of its Report,
with respect to the measure at issue.
5.4 The European Union's claim under Article 12.12 of the DSU
5.209. The European Union requests us to reverse the Panel's findings that:
i. the European Union has not demonstrated sufficiently that the correspondence sent
by the Per manent Mission of Indonesia to the WTO Secretariat on 11 July 2013
constituted a request to suspend the work of the Panel in the sense of
DSU Article 12.12;
ii. the work of the Panel was not suspended; and

369 Appellate Body Reports, Thailand – Cigarettes (Philippines), para. 149; Argentina – Textiles and
370 Appellate Body Reports, EC – Sardines, para. 301; and EC – Selected Customs Matters, para. 259.
371 Appellate Body Report, EC – Sardines, para. 301. See also Panel Reports, EC – IT Products,
paras. 6.47–6.48; and EC – Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III (Article 21.5 – US),
para. 6.18.

iii. the authority for the establishment of this Panel had not lapsed.372
5.210. In addition, the European Union requests us to complete the legal analysis, find that the
authority for the establishment of the Panel had lapsed pursuant to Article 12.12 of the DSU, and,
for that reason, to reverse or declare moot all of t he other conclusions and recommendations of
the Panel.373
5.211. We begin with a brief description of the factual background relevant to this claim. We then
provide an overview of the relevant Panel findings before turning to our interpretation of
Article 12.12 of the DSU and our assessment of whether the Panel erred in reaching the above
conclusions.
5.4.1 Factual background
5.212. On 1 May 2013, Indonesia requested the establishment of a panel. 374 At its meeting on
25 June 2013, the DSB established the Panel. On 10 July 2013, th e WTO Secretariat requested to
hear the parties' preferences with respect to possible panelists, and proposed a meeting for that
purpose on 12 July 2013. That same day, the European Union indicated that it would be able to
attend the meeting. The next day, Indonesia responded by email that it would like "to suspend the
meeting while waiting the development from Brussel". On the same day, the WTO Secretariat
responded to Indonesia's communication, indicating to the parties that the meeting was cancelled
pending further communication.375
5.213. On 12 September 2014, Indonesia informed the EU Delegation in Geneva of its intention to
proceed with the dispute and, on 19 September, the Indonesian Delegation sent a message to the
WTO Secretariat and the EU Delegation reques ting to "re -activate" the process of panel
composition. A meeting to discuss panel composition was held on 29 September 2014376, and, on
18 December 2014, the Panel was composed by the Director-General.377
5.4.2 The Panel's findings
5.214. On 8 January 2015, the European U nion requested the Panel to issue a preliminary ruling
and find that its authority had lapsed, pursuant to Article 12.12 of the DSU, as a consequence of
an alleged suspension of the Panel proceedings for more than 12 months. The European Union
reiterated its request at the organizational meeting of the Panel on 30 June 2015.378
5.215. The European Union asserted that Indonesia had sent a request to the WTO Secretariat on
11 July 2013 with a view to suspending the work of the Panel in accordance with the first sente nce
of Article 12.12 of the DSU.379 For the European Union, the fact that Indonesia's request was made
before the composition of the Panel did not affect its legal significance. In the view of the
European Union, pending panel composition, a request to suspe nd the work of a panel can be
disposed of by the WTO Secretariat as part of its right to exercise "reasonable executive action" on
behalf of the panel.380
5.216. Indonesia requested the Panel to reject the European Union's request and to rule instead
that the Panel 's authority had not lapsed. Indonesia argued that the 11 July 2013 email
correspondence from the Permanent Mission of Indonesia to the WTO Secretariat was not a
request to suspend the work of the Panel under Article 12.12. Indonesia highlighted that the
communication neither expressly referred to the "suspension" of the Panel's "work", nor included a

372 European Union's other appellant's submission, paras. 24 and 79 (referring to Panel Report,
paras. 7.29 and 8.1.a).
373 European Union's other appellant's submission, para. 80.
374 WT/DS442/2.
375 Email correspondence of 10 and 11 July 2013 between the WTO Secretariat and the parties
(Panel Exhibit IDN-2).
376 Email correspondence of 12, 19, and 22 September 2014 between the WTO Secretariat and the
parties (Panel Exhibit IDN-8).
377 WT/DS442/3.
378 Panel Report, para. 7.10.
379 Panel Report, para. 7.14 (referring to European Union's request for a preliminary ruling, para. 13).
380 Panel Report, para. 7.14 (referring to European Union's request for a preliminary ruling, para. 35).

reference to Article 12.12 of the DSU. According to Indonesia, the message was simply a response
to an invitation by the WTO Secretariat to attend a meeting r egarding panel composition.381 In
addition, Indonesia argued that the work of the Panel could not have been suspended before the
Panel had been composed, since Article 12.12 calls for a panel to decide whether or not a
suspension should be granted. According to Indonesia, this discretio n conferred on panels to
deliberate and decide on such requests presupposes that panelists have been appointed.382
5.217. On 23 November 2015, the Panel issued a preliminary ruling finding that its authority had
not lapsed pursuant to Article 12.12 of the DSU. The Panel considered that three conditions must
be fulfilled before it can be concluded that a panel's authority has lapsed: (i) the complaining party
must have submitted a request to suspend the work of the panel; (ii) the panel must have
suspended its work; and (iii) the work of the panel must have been suspended for more than
12 months.383
5.218. The Panel then turned to the facts of this dispute and assessed Indonesia's
communication of 11 July 2013. In this respect, the Panel referred to the Appellate Body reports in
EC - Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III (Article 21.5 – US), highlighting
that the Appellate Body had held that , because the relinquishment of rights granted by the DSU
cannot be lightly assumed, the language in any documents al leged to waive such rights must
"reveal clearly that the parties intended to relinquish their rights". 384 The Panel considered this to
be relevant, because the practical effect of Article 12.12 is that a complainant is deprived of the
right to continue with a claim in the event that 12 months pass following the suspension of a
panel's work.
5.219. Turning to the facts of this dispute, the Panel then considered that it had to determine, as
a threshold matter, whether Indonesia had made a request to suspend the work of the Panel. 385
The Panel reviewed the text of Indonesia's communication of 11 July 2013 and found that the
European Union had not demonstrated that Indonesia had made a request in the sense of the
first sentence of Article 12.12 of the DSU . The Panel concluded that , in the absence of such a
request, the Panel's work had not been suspended and the Panel's authority had therefore not
lapsed.386
5.4.3 Interpretation of Article 12.12
5.220. The European Union's claim of error raises the question of whether panel proceed ings may
be suspended before panel composition has been completed. In this section , we provide an
interpretation of Article 12.12 of the DSU, focusing on this question. In the next section, we assess
whether, in light of the interpretation of Article 12.12 and taking into account the specific
circumstances of this case, the Panel erred in finding that, in this dispute, the Panel's authority had
not lapsed.
5.221. We begin by considering the text of Article 12.12 of the DSU, which provides:
Article 12
Panel Procedures
12. The panel may suspend its work at any time at the request of the complaining
party for a period not to exceed 12 months. In the event of such a suspension, the
time-frames set out in paragraphs 8 and 9 of this Article, paragraph 1 of Article 20,
and paragraph 4 of Article 21 shall be extended by the amount of time that the work

381 Panel Report, para. 7.15.a (referring to Indonesia's response to European Union's request for a
preliminary ruling, paras. 4.5 and 4.7-4.8).
382 Panel Report, para. 7.15.b (referring to Indonesia's response to European Union's request for a
preliminary ruling, paras. 4.16 and 4.40-4.41).
383 Panel Report, para. 7.20.
384 Panel Report, para. 7.22 (quoting Appellate Body Reports, EC – Bananas III (Article 21.5 –
Ecuador II) / EC – Bananas III (Article 21.5 – US), para. 217).
385 Panel Report, para. 7.24.
386 Panel Report, para. 7.29.

was suspended. If the work of the panel has been suspended for more than
12 months, the authority for establishment of the panel shall lapse.
5.222. The first sentence of Article 12.12 provides that a panel may suspend its work at any time
at the request of the complaining party. Suspension pursuant to this provision thus requires a
request by the complainant. We further note that this provision stipulates that the panel "may"
suspend its work. Accordingly, a request by a complainant does not automatically lead to
suspension of panel proceedings. Rather, suspension ensues from the exercise of discretion and a
decision in a particular case.
5.223. The subject of the first sentence of Articl e 12.12 is "[t]he panel". This indicates that it is
for the panel to decide whether or not to suspend its work. This is further confirmed by the fact
that the sentence makes no reference to any other entity, such as the DSB or the
WTO Secretariat.
5.224. This raises the question of whether the decision to suspend the work of a panel can be
taken at any point after panel establishment or only once panel composition is complete. In this
respect, we note that Article 12.12 does not further qualify or elaborate upon t he word "panel". In
particular, it does not refer to an "established" or "composed" panel. Article 12.12 does, however,
identify what may be suspended - "its work" - that is, the work of the panel. The verb "suspend"
suggests putting a stop to something th at has already begun, and the use of the possessive "its"
implies that there is a composed panel that has begun work relating to the dispute.
5.225. Looking beyond Article 12.12, the word "panel" is used throughout the DSU in several
provisions concerning various stages of dispute settlement. For instance, in the context of
consultations, Article 4.7 contains the word "panel", and it is clear from the context that this must
refer to a panel that has not yet been established. Article 6.2 sets out the rules for the
establishment of panels. Since a panel must be established before it can be composed, the word
"panel" in Article 6.2, which refers to the panel to be established, cannot be a reference to a
composed panel. At the same time, there are other provisions in t he DSU that, in referring to "the
panel", are clearly referring to a panel that has been composed. For instance, Article 15.2, which
provides that the panel shall issue an interim report, can be referring only to a panel that has been
composed. Accordingly , the word "panel" may refer to an established panel or to a composed
panel, depending on the context within which it is used in a particular provision of the DSU. In this
connection, we see merit in the observation made by Indonesia and the United States that, in
general, the articles of the DSU proceed sequentially, from the initial phases of the dispute
settlement process through to its final stages , and that, therefore, the word "panel" in any given
provision must be interpreted taking into consideratio n the location of the provision within the
overall sequence and structure of the DSU. 387 In this vein, we note that Article 12.12 of the DSU
relating to the suspension of panel proceedings comes after Article 8 relating to the composition of
panels.
5.226. We have observed above that the text of Article 12.12 envisages that a decision is taken,
and discretion is exercised by a panel. Similarly, other provisions relating to panel procedures
contemplate action by the panel. For instance, Article 12.5 stipulates that panels should set precise
deadlines for written submissions by the parties, and Article 13 provides a right for panels to seek
information and technical advice from any individual or body they deem appropriate. This contrasts
with other references to " a panel" or "the panel" in provisions relating to earlier stages of a
dispute, which do not contemplate action by the panel. Article 6.1, for instance, provides that a
panel shall be established by the DSB if certain conditions are met. However, this provision does
not refer to any action to be taken by the panel at that point in time. We consider that this, along
with the fact that Article 12.12 envisages that discretion be exercised, as well as the placement of
Article 12.12 in the overall structure of th e DSU, suggests that it is a composed panel that is to
take the decision to suspend panel proceedings.
5.227. The European Union argues that the reference to suspension of work "at any time" in
Article 12.12 suggests that a panel's work could be suspended before panel composition.388 We

387 Indonesia's appellee's submission, paras. 3.42-3.57; United States' third participant's submission,
para. 56.
388 European Union's other appellant's submission, para. 41.

observe, however, that this reference to "at any time" immediately follows the phrase "[t]he panel
may suspend its work". As we have set out above, this phrase reveals that suspension of a panel's
work involves a deliberate decision of a panel that has already been composed.
5.228. The European Union also invokes what it refers to as the WTO Secretariat's competence to
exercise "reasonable executive action" on behalf of the panel. According to the European Union,
the WTO Secretariat could di spose of a request under Article 12.12 on behalf of a panel. 389 We
note that the role of the WTO Secretariat is set out , primarily, in Article 27 of the DSU . The
WTO Secretariat has the responsibility of assisting panelists, especially on the legal, historic al, and
procedural aspects of the matters dealt with , and providing secretarial and technical support.
However, there is no reference in the DSU to what the European Union refers to as "reasonable
executive action" to be exercised by the WTO Secretariat on behalf of a panel that has not yet
been composed.
5.229. With these considerations in mind, we now turn to review the Panel's analysis in order to
assess whether the Panel erred in finding that its authority had not lapsed pursuant to
Article 12.12 of the DSU.
5.4.4 Whether the Panel erred in finding that its authority had not lapsed pursuant to
Article 12.12
5.230. The European Union requests us to reverse the Panel's finding that the European Union
had not sufficiently demonstrated that Indonesia had made a "request" in t he sense of the first
sentence of Article 12.12 of the DSU . The European Union further asks us to reverse the
consequential findings that the work of the Panel had not been suspended, and that the
Panel's authority had not lapsed.390
5.231. The European Union alleges that the Panel applied an incorrect legal standard by relying on
the Appellate Body reports in EC – Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III
(Article 21.5 – US) that address the relinquishment of rights granted by the DSU. In the prese nt
case, Indonesia was not relinquishing a right under the DSU. On the contrary, Indonesia was
exercising a right specifically afforded to it by Article 12.12 of the DSU. Therefore, the Panel
should have applied the standard set out in Article 11 of the DS U and undertaken an objective
assessment of the matter before it, assessing whether Indonesia's communication, the
WTO Secretariat's response to it, and the lapse of time, taken together, suggested that Indonesia
sought to exercise its right under Article 12.12 of the DSU. 391 The European Union adds that the
Panel erred in being overly formalistic and failing to consid er the substance of
Indonesia's communication.392 The Panel should have looked past the form to the substance, and
in particular to the content o f the request, the response to the request, and the ensuing inactivity
for a period of more than 12 months.393
5.232. Indonesia requests us to : (i) uphold the Panel's findings in paragraphs 7.29 and 8.1 .a of
the Panel Report ; (ii) reject the European Union's claim of error relating to Article 12.12 of the
DSU; and (iii) reject the allegation that the Panel failed to make an objective assessment of the
matter as required under Article 11 of the DSU.394
5.233. Indonesia agrees with the Panel' s finding that the work of the Panel was not "suspended"
within the meaning of Article 12.12 of the DSU. Indonesia explains that the message it sent to the
WTO Secretariat on 11 July 2013 was not a "request" but a response to an email from the
WTO Secretariat seeking to schedule a meeting with the parties in order to discuss
panel composition.395 According to Indonesia, the reasons for seeking to delay panel composition
were the prospect of reaching an amicable solution, as well as the re -opening of the fatty alcohols
investigation by the EU authorities following the issuance of the Interpipe Judgment, which

389 European Union's other appellant's submission, para. 61.
390 European Union's other appellant's submission, para. 79 (referring to Panel Report, para. 7.29).
391 European Union's other appellant's submission, para. 69 (referring to Panel Report, para. 7.22).
392 European Union's other appellant's submission, para. 75 (referring to Panel Report, para. 7.26.a).
393 European Union's other appellant's submission, para. 75 (referring to Panel Report, para. 7.26.b).
394 Indonesia's appellee's submission, para. 3.104.
395 Indonesia's appellee's submission, para. 3.27.

addressed issues similar to those in the fatty alcohols investigation. 396 Indonesia also disagrees
with the European Union's contention , that in the circums tances of the present case, the
WTO Secretariat acted "in the name of the Panel" when it communicated to the parties that the
meeting was cancelled.397
5.234. The United States agrees with the Panel's finding that its authority had not lapsed. The
United States sub mits that Indonesia's communication to the WTO Secretariat to suspend a
meeting to discuss panel composition was not a request to the Panel that it "suspend its work"
pursuant to Article 12.12.398
5.235. We have explained above that a panel's work can be suspended pursuant to Article 12.12
only once the panel has been composed. In the present case, the Panel did not address this issue.
Instead, the Panel posed the question of whether the European Union had established that
Indonesia's 13 July 2013 email requesting "to suspend the meeting" constituted a request to
suspend the work of the Panel in the sense of Article 12.12 of the DSU. However, for the reasons
explained above, any request contained in the communication from Indonesia to the Panel could
not have triggered the beginning of the 12 -month period provided for under Article 12.12 because
no panel had been composed that could have taken a decision on a request for suspension.
5.236. In the circumstances of this case, the WTO Secretariat's response to Indonesia's request to
"suspend" a meeting to discuss panel composition was equally irrelevant.399 Because the Panel had
not yet been composed, the response sent by the WTO Secretariat could not have constituted any
decision by the Panel to suspend proceedings pursuant to Article 12.12 of the DSU. In light of
these considerations, the first of the three findings made by the Panel was not pertinent to the
question of whether the Panel's authority had lapsed. We therefore declare moot and of no legal
effect the Panel's first finding, namely, that "the European Union ha[d] not demonstrated
sufficiently that the correspondence sent by the Permanent Mission of Indonesia to the
WTO Secretariat on 11 July 2013 constituted a request to suspend the work of the Panel in the
sense of D SU Article 12.12."400 Furthermore, as we have explained above, the Panel proceedings
could not have been suspended at that point, because the Panel had not yet been composed. For
this reason, the Panel did not err in making its second and third findings, namely , that the Panel's
work had not been suspended and that its authority had not lapsed.401
5.237. This brings us to the additional claim of error raised by the European Union with respect to
the Panel's analysis under Article 12 .12 of the DSU . The European Union alleges that the Panel
failed to make an objective assessment of the matter as required by Article 11 of the DSU for
two reasons. First, the Panel erred by failing to attribute the proper weight to the
WTO Secretariat's r esponse to Indonesia's communication of 11 July 2013. The European Union
asserts that omitting from consideration a central element of the evidence is inconsistent with the
Panel's obligation to make an objective assessment of the matter pursuant to Articl e 11 of the
DSU.402 Second, the European Union contends that the Panel's references to the European Union
having "insufficiently demonstrate[ed]" that Indonesia's communication of 11 July 2013
constituted a request to suspend the work of the Panel are inappo site and legally erroneous,
demonstrate a lack of objectivity, and are inconsistent with the Panel's obligation to undertake an
objective assessment of the matter pursuant to Article 11 of the DSU.403

396 Indonesia's appellee's submission, para. 3.25 (referring to Interpipe Judgment (Panel
Exhibit IDN-49)).
397 Indonesia's appellee's submission, para. 3.28 (quoting European Union's other appellant's
submission, paras. 35, 36, 42, 51 and 61).
398 United States' third participant's submission, para. 60.
399 Email correspondence of 10 and 11 July 2013 between the WTO Secretariat and the parties (Panel
Exhibit IDN-2), p. 1.
400 Panel Report, paras. 7.29.a and 8.1.a.i.
401 Panel Report, paras. 7.29.b and c, and 8.1.a.ii and iii.
402 European Union's other appellant's submission, para. 73 (referring to Panel Report, para. 7.25).
403 European Union's other appellant's submission, para. 74 (referring to Panel Report, paras. 7.27
and 7.29.a).

5.238. Indonesia contends that the European Union's claims under Article 11 of the DSU are not
sufficiently developed, do not stand by themselves, and should be rejected.404
5.239. We observe that the European Union's claims of error under Article 11 of the DSU relate to
the Panel's analysis of whether the correspondence sent by the Permanent Mission of Indonesia to
the WTO Secretariat on 11 July 2013 constituted a request to suspend the work of the Panel in the
sense of Article 12.12 of the DSU. We have declared the finding of the Panel based on this analysis
to be moot and of no legal effect. Accordingly, we find it unnecessary to rule on the
European Union's claim that the Panel acted inconsistently with Article 11 of the DSU in its analysis
under Article 12.12 of the DSU.
5.4.5 Conclusion
5.240. We have found that only a composed panel c an take the decision to suspend panel
proceedings. We therefore concluded that the first of the three findings made by the Panel was not
pertinent to the question of whether the Panel's authority had lapsed. Having so found, we declare
moot and of no legal effect the Panel's finding, in paragraphs 7.29.a and 8.1.a.i of its Report, that
the European Union had not demonstrated that the correspondence sent by the Permanent Mission
of Indonesia to the WTO Secretariat on 11 July 2013 constituted a request to suspend the work of
the Panel in the sense of Article 12.12 of the DSU.
5.241. We have also found that, in finding that the Panel's work had not been suspended and that
its authority had not lapsed, the Panel did not act inconsistently with Article 12.12 of the DSU .
Consequently, we uphold these findings.405
5.5 The European Union's cla im that the Panel erred in its treatment of certain
information as BCI
5.242. The European Union requests us to find that the Panel erroneously treated certain
information as BCI and consequently erred by redacting that information from five paragraphs of
its Report. 406 The European Union challenges the Panel's treatment of this information on the
grounds that the information was already in the public domain and that the Panel's
BCI Procedures, therefore, prevented the Panel from treating that information as BCI.407
5.243. Indonesia requests us to reject the European Union's appeal. According to Indonesia, in
asserting that certain information was already in the public domain, the European Union bore the
burden of demonstrating that the information had been properly released into the public domain,
despite it being marked as confidential during the anti-dumping investigation.408
5.244. The European Union's claim on appeal does not challenge a specific finding, conclusion, or
procedural ruling of the Panel. Instead, the European Union argues that, with respect to
five paragraphs of its Report, the Panel acted inconsistently with Articles 10.1, 11, 12.1, and 12.7
of the DSU, as read together with paragrap hs 1 and 9 of the Panel's BCI Procedures, by
erroneously treating certain information as BCI. In order to situate the European Union's appeal in
its proper context, we set out below a summary of the relevant aspects of the Panel proceedings.
5.245. Following cons ultation with the parties, the Panel adopted its Working Procedures and
BCI Procedures.409 The Panel's BCI procedures were applicable to any BCI submitted in the course
of the Panel proceedings. Pursuant to paragraph 1 of the Panel's BCI Procedures, BCI was defined
as any information that had been designated as such by the party submitting the information, and
that had previously been treated by the EU authorities, in their anti -dumping investigation, as
confidential within the meaning of Article 6.5 of the A nti-Dumping Agreement. However,

404 Indonesia's appellee's submission, para. 3.101.
405 Panel Report, paras. 7.29.b and c, and 8.1.a.ii and iii.
406 European Union's other appellant's submission, para. 182 (referring to Panel Report, paras. 7.64,
7.74, 7.80, 7.82, and 7.83).
407 European Union's other appellant's submission, paras. 171-180 (referring to PT Musim Mas Judgment
(Panel Exhibit EU-4)).
408 Indonesia's appellee's submission, paras. 5.15-5.16.
409 Panel Report, para. 1.7. The BCI Procedures are contained in Annex A-2 to the Panel Report.

paragraph 1 of the Panel's BCI procedures explicitly provided that these procedures would not
apply to, inter alia, any information that was available in the public domain.
5.246. On 29 July 2016, the Panel provided the parties with its interim report, and invited the
parties to request the revision of precise aspects of the interim report. In its comments at interim
review, the European Union requested the Panel to review certain information treated as BCI in the
interim report. The BCI was identified by being enclosed within double brackets, and this
bracketed information was to be redacted from the Panel Report. The European Union asserted
that much of the bracketed information in the interim report was already in, or coming into, the
public domain. 410 Of particular relevance, the European Union suggested the removal of all
bracketing in paragraphs 7.64, 7.74, 7.80, 7.82, and 7.83. The European Union identified
two Panel exhibits411 as examples of documents that were in the public domain and that contained
some of the information treated by the Panel as BCI and bracketed in the interim report.
5.247. In response to the European Union's comments, Indonesia acknowledged that some of the
information for which it had sought BCI protection may have been made publicly available.
However, Indonesia questioned whether the disclosure of that information had been discussed or
agreed with the investigated producer/exporter. 412 At the same time, Indonesia ag reed with the
European Union that the readability of the Panel Report ought not to be compromised any more
than necessary, and provided some suggestions on how to reduce the amount of redacted
information in the Report.413
On 23 September 2016, the Panel iss ued its final report to the parties. Overall, the Panel 5.248.
significantly reduced the extent of the bracketed information in its final report as compared to the
interim report. In particular, the Panel reduced the extent of the bracketing of information in
paragraphs 7.64 and 7.83. The Panel also deleted part of the bracketed information in
paragraph 7.82. However, the Panel maintained the bracketing in paragraphs 7.74 and 7.80.
5.249. In its cover letter forwarding its final report to the parties, the Panel confirmed that it had
taken into account the comments of the parties in relation to the protection of BCI. The Panel
indicated that, "in line with the [Panel's BCI Procedures], only information identified by the Panel
as not in the public domain was treated as conf idential in the Final Report and its annexes." 414
Pursuant to paragraph 9 of the Panel's BCI Procedures, the Panel invited the parties to request any
amendments to the final report, with specific respect to the Panel's treatment of certain
information as BCI.415 Neither of the parties submitted a request for amendment of the final report
in response to this invitation. On 16 December 2016, the Panel Report was circulated to all
WTO Members. This Report redacted the information that the Panel had treated as BCI and
bracketed in its final report to the parties.
5.250. On appeal, the European Union contests the Panel's redacting of certain information from
five paragraphs of its Report: paragraphs 7.64, 7.74, 7.80, 7.82, and 7.83. However, the
contested redactions in these five paragraphs relate to only three pieces of information. 416 The
information subject of the European Union's claim is company -specific. It concerns details of the
relationship between PT Musim Mas and ICOF -S, and of the responsibilities and risks that IC OF-S
undertook on behalf of PT Musim Mas. Moreover, the five paragraphs containing the information at
issue form part of the Panel's analysis addressing Indonesia's claim under Article 2.4 of the
Anti-Dumping Agreement. We recall that , in section 5.1 above, we have addressed Indonesia's
appeal of the issues of law and the legal interpretations underpinning the Panel's findings and
conclusions under A rticle 2.4. In disposing of Indonesia's claim of error, we did not find it

410 European Union's comments on the interim report.
411 European Union's comments on the interim report (referring to Final Determination (Panel
Exhibit IDN-4); PT Musim Mas Judgment (Panel Exhibit EU-4)).
412 Indonesia's comments on the European Union's comments on the interim report, para. 3.2.
413 Indonesia's comments on the European Union's comments on the interim report, paras. 3.3-3.10.
414 Letter dated 23 September 2016 from the Chairman of the Panel to Indonesia and the
European Union.
415 Letter dated 23 September 2016 from the Chairman of the Panel to Indonesia and the
European Union.
416 This is because, while the challenged references in paragraphs 7.74 and 7.83 are distinct, the
sentence that first appears in paragraph 7.64 is reproduced with only slight modifications in paragraphs 7.80
and 7.82 of the Panel Report.

necessary to refer to any of the information subject of the European Union's claim. Hence, we are
not convinced that examining the European Union's claim on appeal will facilitate f urther the
achievement of a satisfactory settlement of this dispute.
5.251. Furthermore, as mentioned in section 5.3 above, the anti -dumping measure at iss ue in
this dispute expired on 12 November 2016.417
5.252. In light of the Panel's consideration of the appropriate extent of BCI protection based upon
the parties' interim review comments, the company -specific nature of the information, as well as
the expiry of the measure at issue, an examination of whether the Panel should have included the
information in question in the circulated version of its Report is not necessary to secure a positive
solution to this dispute. For these reasons, we find it unnecessary to rule on whether the Panel
erroneously designated certain information as BCI and consequently erred by redacting that
information from five paragraphs of the Panel Report.
6 FINDINGS AND CONCLUSIONS
6.1. For the reasons set out in this Report, the Appellate Body makes the following findings and
conclusions.
Article 2.4 of the Anti-Dumping Agreement
6.2. The focus of Article 2.4 of the Anti -Dumping Agreement is not merely on a comparison
between the normal value and the export price, but predominantly on the means to ens ure the
fairness of that comparison. To this end, investigating authorities are required to make due
allowance for differences affecting price comparability. There are no differences affecting price
comparability that are precluded, as such, from being the object of an allowance. Instead, the
need to make due allowances must be assessed in light of the specific circumstances of each case.
The Panel's articulation of the legal standard under Article 2.4 is consonant with our understanding
of this provision. The existence of a close relationship between transacting companies would be
pertinent to the extent that it affects the relevant transactions in such a way as to affect the
comparability of the export price and the normal value. Thus, the Panel did not er r in rejecting
Indonesia's argument that the existence of what Indonesia denotes as a "single economic entity" is
dispositive of whether a given mark -up qualifies as a difference which affects price comparability
under Article 2.4.
a. Accordingly, we find that Indonesia has not demonstrated that the Panel erred in its
interpretation of Article 2.4 of the Anti-Dumping Agreement.
6.3. With respect to Indonesia's claim that the Panel erred in its application of Article 2.4 to the
facts of this case, we consider that t he Panel's review of the EU authorities' evaluation was
properly focused on whether that evaluation was consistent with Article 2.4 of the
Anti-Dumping Agreement. The Panel did not err in finding that the EU authorities had a sufficient
evidentiary basis for establishing that the mark -up paid by PT Musim Mas to ICOF-S in connection
with export sales to the European Union was a difference affecting price comparability under
Article 2.4. Moreover, contrary to Indonesia's argument, the Panel's reasoning does not imply that,
when confronted with transactions between closely affiliated parties, investigating authorit ies may
replace the expenses actually incurred with the expenses that would have been incurred had the
producing entity obtained the service from an independent provider.
a. Accordingly, we find that Indonesia has not demonstrated that the Panel erred in its
application of Article 2.4 of the Anti-Dumping Agreement to the facts of this case.
6.4. We also find that Indonesia has not demonstrated that the Panel a cted inconsistently with
Article 17.6(i) of the Anti -Dumping Agreement or Article 11 of the DSU in its analysis of
Indonesia's claim under Article 2.4 of the Anti-Dumping Agreement.

417 European Commission, Notice of the expiry of certain anti-dumping measures, Official Journal of the
European Union, C Series, No. 418 (12 November 2016), p. 3.

a. Consequently, we uphold the Panel's finding, in paragraphs 7.160 and 8.1.b .i of the
Panel Report, that Indonesia has not demonstrate d that the EU authorities acted
inconsistently with Article 2.4 of the Anti -Dumping Agreement by treating the mark -up
paid by PT Musim Mas to ICOF -S as a difference affecting price comparability, an d
therefore making a downward adjustment to the export price.
Article 6.7 of the Anti-Dumping Agreement
6.5. On-the-spot investigations are one mechanism that investigating authorit ies may employ in
satisfying their duty, under Article 6.6 of the Anti -Dumping Agreement, to ensure the accuracy of
information supplied by interested parties. When such on -the-spot investigations are conducted,
Article 6.7 requires that the firms subject to such visits be provided with th e "results", or
outcomes, of this verification process. The scope of on -the-spot investigations and the ensuing
"results" to be communicated to the investigated firms vary from case to case, and are informed
by the integral parts of the process of the on-the-spot investigations, which include the questions
posed by the investigating authorities, the responses thereto, the scope of the advance notice, and
the collection of any additional evidence during the on -the-spot investigation s. In addition, the
disclosure of the "results" of the on -the-spot investigations must enable the firm s to which they
are communicated to discern the information that the authorities considered to have been
successfully verified, as well as the information that could not be ver ified, and to be informed of
the results in sufficient detail and in a timely manner so as to be placed in a position to defend
effectively their interests in the remaining stages of the anti -dumping investigation. We therefore
find that the Panel did not err in its interpretation or application of Article 6.7 in determining the
scope of the on-the-spot investigations and the ensuing "results" to be communicated to the
investigated firms.
a. Consequently, we uphold the Panel's finding, in paragraphs 7.236 and 8.1.d of the Panel
Report, that the EU authorities failed to make available or disclose the "results of any
such investigations" to PT Musim Mas, and therefore acted inconsistently with Article 6.7
of the Anti-Dumping Agreement.
Article 3 of the DSU
6.6. We find that, in appealing the Panel Report notwithstanding the expiry of the measure at
issue, Indonesia did not act inconsistently with Article 3 of the DSU. We therefore reject the
European Union's requests to find it unnecessary to rule on the matter raised in Indonesia's appeal
or to declare moot and of no legal effect all of the findings and conclusions made by the Panel.
Article 19 of the DSU
6.7. We have found that , as a general matter, it is within a panel's discretion to decide how to
take into account subse quent modifications to, or the repeal of, the measure at issue. In the
absence of any finding or acknowledgement by the Panel that the measure at issue is no longer in
force, there was no basis for the Panel to have departed from the requirement in Article 19.1 of
the DSU to make a recommendation after having found that measure to be inconsistent with the
covered agreements.
a. Accordingly, we find that the Panel did not err or act inconsistently with Article 19.1 or
Article 11 of the DSU in making a recommendation, at paragraph 8.3 of the Panel
Report, with respect to the measure at issue.
Article 12.12 of the DSU
6.8. We have found that only a composed panel can take the decision to suspend panel
proceedings. We therefore concluded that the first of the three findings made by the Panel was not
pertinent to the question of whether the Panel's authority had lapsed.
a. Having so found, we declare moot and of no legal effect the Panel's finding, in
paragraphs 7.29.a and 8.1 .a.i of the Panel Report, that the European Union had not
demonstrated that the correspondence sent by the Permanent Mission of Indonesia to

the WTO Secretariat on 11 July 2013 constituted a request to suspend the work of the
Panel in the sense of Article 12.12 of the DSU.
6.9. We have also found that, in concluding that its work had not been suspended and that its
authority had not lapsed, the Panel did not act inconsistently with Article 12.12 of the DSU.
Moreover, we have found it unnecessary to address the European Union's claim that the Panel
failed to undertake an objective assessment of the matter.
a. Consequently, we uphold the Panel's findings, in paragraphs 7.29.b and c, and B.1.a.ii
and ili of the Panel Report that the work of the Panel was not suspended and the
authority for the establishment of the Panel did not lapse.
The Panel's treatment of certain information as BCI
6.10. We find it unnecessary to rule on whether the Panel erroneously designated certain
information as BCl and consequently erred by redacting that information from five paragraphs of
the Panel Report.
Recommendation
6.11. For the reasons set out in this Report, the Panel's recommendation at paragraph B.3 of the
Panel Report, that the European Union bring its measures into conformity with its obligations
under the Anti-Dumping Agreement, stands.
Signed in the original in Geneva this 31st day of July 2017 by:
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Ricardo Ramirez-Hernandez
Presiding Member
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Hong Zhao
Member