INDONESIA – IMPORTATION OF HORTICULTURAL PRODUCTS, ANIMALS AND ANIMAL PRODUCTS NOTIFICATION OF AN APPEAL BY INDONESIA UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
Document: AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
Date: 21 February 2017
Document codes: WT/DS477/11; WT/DS478/11
Complainant: New Zealand
Respondent: Indonesia
Third parties: Australia, Brazil, Canada, China, EU, India, Japan, Norway, Paraguay, Singapore, Taiwan, Argentina, South Korea, Thailand
Dispute stage: Appellate Body
Agreements cited: Art. XI:1  GATT 1994Art. 4.2  AgricultureArt. 3.2, 2.2(a)  Import LicensingArt. III:4  GATT 1994

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

Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes (DSU) and Rule 20 of the Working Procedures for Appellate Review,
Indonesia hereby notifies the Dispute Settlement Body of its decision to appeal to the
Appellate Body certain issues of law and legal inte rpretation covered in the Panel Report entitled
Indonesia — Importation of Horticultural Products, Animals and Animal Products
(, ), which was circulated on 22 December 2016 (the "Panel Report").
Pursuant to Rules 20(1) and 21(1) of the Working Procedures for Appellate Review, Indonesia is
simultaneously filing this Notice of Appeal with the Appellate Body Secretariat.

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

I. The Panel's findings and conclusions under Article XI:1 of the GATT 1994
The Panel erred in law in finding that Article XI:1 of the GATT 1994 deals more specifically with
quantitative import restrictions on agricultural goods than Article 4.2 of the Agreement on
Agriculture. In particular, the Panel failed to apply the pri nciple of lex specialis derogat lege
generali as reflected in Article 21.1 of the Agreement of Agriculture.

Indonesia, therefore, requests the Appellate Body to reverse the Panel's conclusions and the
Panel's legal interpretations contained in paragraphs 7.31-7.33 of the Panel Report. In addition,
Indonesia requests the Appellate Body to reverse the Panel's findings in paragraphs 7.92, 7.112,
7.134, 7.156, 7.179, 7.200, 7.227, 7.243, 7.270, 7.299, 7.327, 7.349, 7.375, 7.398, 7.428,
7.451, 7.478, and 7.501 as well as paragraph 8.1.b of its Report.

II. The Panel's findings and conclusions under Article 4.2 of the Agreement on
Agriculture
The Panel further erred in law in allocating the burden of proof to Indonesia under the second
element in footnote 1 to Articl e 4.2 of the Agreement on Agriculture. To make a prima facie case
under Article 4.2 of the Agreement on Agriculture, a complainant must demonstrate both elements

1 Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for Appellate Review, this Notice of Appeal
includes an indicative list of the paragraphs of the Panel Report containing the alleged errors, without prejudice
to Indonesia's right to refer to other paragraphs of the Panel Report in the context of its appeal.
WT/DS477/11 • WT/DS478/11

set out in footnote 1 to Article 4.2 of that agreement. It must show that the measure at issue is of
the type required to be converted into ordinary customs duties, such as a quantitative import
restriction, and that it is not maintained under, inter alia, any of the public policy exceptions set
out in Article XX of the GATT 1994.

Indonesia, there fore, requests the Appellate Body to reverse the Panel's conclusions and the
Panel's legal interpretations contained in paragraphs 7.34 and 7.833 of the Panel Report. In
addition, Indonesia requests the Appellate Body to reverse the Panel's finding in paragraph 8.2.

III. The Panel's failure to make an objective assessment under Article 11 of the
Understanding on Rules and Procedures Governing the Settlement of Disputes
(DSU)
The Panel failed to conduct an objective assessment of the applicability of the covered agreements
or of the conformity of the Indonesian measures at issue with the covered agreements, as required
by Article 11 of the DSU . The Panel did not examine the co -complainants' claims under Article 4.2
of the Agreement on Agriculture, which was the a pplicable agreement. The Panel failed to conduct
an objective assessment of the applicability of Article 4.2 of the Agreement on Agriculture and to
allocate the proper burden of proof under the second element of footnote 1 to Article 4.2 of the
Agreement on Agriculture.

Indonesia, therefore, requests the Appellate Body to reverse the Panel's conclusions and the
Panel's legal interpretations contained in paragraphs 7.31 -7.34 and 7.833 of the Panel Report. In
addition, Indonesia requests the Appellate Body to reverse the Panel's findings in paragraphs 7.92,
7.112, 7.134, 7.156, 7.179, 7.200, 7.227, 7.243, 7.270, 7.299, 7.327, 7.349, 7.375, 7.398,
7.428, 7.451, 7.478, 7.501, as well as paragraphs 8.1.b and 8.2 of its Report.

IV. The Panel's conclusion under Article XI:2(c) of the GATT 1994
Indonesia considers that the Panel's conclusion that Article XI:2(c) of the GATT 1994 has been
rendered inoperative by Article 4.2 of the Agreement on Agriculture has systemic implications for
all WTO Members. If the Panel were correct that Article XI:1 of the GATT 1994 is the agreement
that deals specifically with quantitative import restrictions on agricultural products, Indonesia
submits an alternative claim of legal error that the Panel erred in its conclusion under
Article XI:2(c) of the GATT 1994.

Indonesia, therefore, requests the Appellate Body to reverse the Panel's conclusion and the Panel's
legal interpretation contained in paragraphs 7.59 and 7.60 of the Panel Report.

V. The Panel's findings and conclusions under Article XX of the GATT 1994
With respect to Measures 9 through 17, Indonesia submits that the Panel assessed only the
requirements under the chapeau to Article XX of the GATT 1994. It did not assess any of the
defences put forward by Indonesia under the applicable subparagraphs of Article XX before making
its findings that "Indonesia has failed to demonstrate that Measures 9 to 17 are justified under
Article XX(a), (b) or (d) of the GATT, as appropriate".

Indonesia, therefore, requests the Appellate Body to rev erse the Panel's conclusions and the
Panel's legal interpretations contained in paragraphs 7.824, 7.826, 7.827 and 7.829 of the
Panel Report. In addition, Indonesia notes that the above grounds of appeal are without prejudice
to the arguments developed in Indonesia's Appellant's Submission.