EUROPEAN UNION – ANTI-DUMPING MEASURES ON IMPORTS OF CERTAIN FATTY ALCOHOLS FROM INDONESIA 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: 14 February 2017
Document codes: WT/DS442/5
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
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 10 February 2017, from the delegation of Indonesia, is being
circulated to Members.

Pursuant to Articles 16.4 and 17 of the Understandin g 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 deci sion to appeal to the
Appellate Body certain issues of law and legal interpretation covered in the Panel Report entitled
European Union — Anti-Dumping Measures on Imports of Certain Fatty Alcohols from Indonesia
(WT/DS442), which was circulated on 16 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 and its Appellant's Submission with the
Appellate Body Secretariat.
For the reasons to be further elaborated in its submission to the Appellate Body, Indonesia appeals
and requests the Appellate Body to reverse the findings, conclusions, and recommendations of the
Panel, with respect to the following errors contained in the Panel Report:1
I. The Panel's finding under Article 2.4 of the Anti-Dumping Agreement
1. The Panel erred in the interpretation and application of Article 2.4 of the
Anti-Dumping Agreement when finding that Indonesia had not demonstrated that, in its
determinations in the anti -dumping investigation at issue in this dispute, the EU Commiss ion had
not acted inconsistently with this provision by making an adjustment to the export price for one of
the investigated producer/exporters to account for intra -company transfers between the producer
and its closely affiliated sales entity.2
2. In particular, and without prejudice to the arguments developed in Indonesia's appellant's
submission, the Panel incorrectly interpreted and applied Article 2.4 by not addressing Indonesia's
arguments or taking into account the need to determine whether a closely a ffiliated sales entity is
in a sufficiently close relationship to the producing entity to warrant being treated as a single
producer/exporter for the purpose of its price comparison analysis.3

1 Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for Appellate Review, this Notice of Appeal
includes an indicative list of the paragraphs of the Panel Report containing the alleged errors, without prejudice
to Indonesia's right to refer to other paragraphs of the Panel Report in the context of its appeal.
2 Panel Report, paras. 7.96-7.97, 7.160-7.161, and 8.1(b)(i).
3 Panel Report, paras. 7.54-7.97.

3. The Panel also incorrectly interpreted and applied Article 2.4 by concluding that the
relationship between closely affiliated entities is not relevant to the determination of price
adjustments and a fair comparison between export price and normal value under Article 2.4.4
4. The Panel also incorrectly interpreted and app lied Article 2.4 by concluding that it is
permissible to deduct the profits and indirect selling expenses of a closely affiliated sales entity
from the export price under Article 2.4.5
5. The Panel also incorrectly interpreted and applied Article 2.4 by findi ng that the deduction of
certain indirect selling expenses and profit from the export price while no corresponding
deductions were made from the normal value did not result in an asymmetrical, unfair comparison
under Article 2.4.6
6. The Panel also incorrectl y interpreted and applied Article 2.4 by finding that it was
permissible to make deductions from the export price for indirect selling expenses and, in
particular, profit on the basis of what the investigating authority considered to be reasonable for
the sector at issue.7
7. The Panel also incorrectly interpreted and applied Article 2.4 by dismissing the relevance of
the Commission's decision to treat the producer and its closely affiliated sales entity as a single
entity for the purpose of identifying the starting price for the dumping analysis.8
II. The Panel's duties under Article 17.6 of the Anti -Dumping Agreement and
Article 11 of the DSU
8. The Panel also acted inconsistently with Articles 17.6(i) a nd 17.6(ii) of the
Anti-Dumping Agreement, as well as Article 11 of the DSU, by reaching a conclusion that the
measures at issue were consistent with Article 2.4 of the Anti -Dumping Agreement without first
considering Indonesia's arguments and evidence. 9 Specifically, the Panel act ed inconsistently with
Articles 17.6(ii) of the Anti -Dumping Agreement, as well as Article 11 of the DSU, by failing to
consider Indonesia's legal arguments and failing to interpret Article 2.4 in accordance with
customary rules of interpretation of public international law, thereby failing to make an objective
assessment of the matter, including the applicability and the conformity of the measures at issue.
The Panel also acted inconsistently with Articles 17.6(i) a nd 17.6(ii) of the
Anti-Dumping Agreement, as well as Article 11 of the DSU, by applying the legal standard that it
articulated without considering Indonesia's arguments and evidence, reaching a conclusion of
WTO consistency on that basis and subsequently imposing on Indonesia the burden of disproving
the Panel's finding.10
9. The Pan el also acted inconsistently with Articles 17.6(i) a nd 17.6(ii) of the
Anti-Dumping Agreement, as well as Article 11 of the DSU, by engaging in prohibited de novo
review of the evidence, and by ignoring or summarily dismissing material arguments and eviden ce
that favoured Indonesia's case.11
III. Request for findings and completion of the analysis
10. For the above reasons, Indonesia, therefore, respectfully requests the Appellate Body to
reverse the Panel 's finding contained in paragraphs 7.96 -7.97, 7.160-7.161, and 8.1(b)(i) of the
Panel Report, that the EU Commission did not act inconsistently with A rticle 2.4 of the
Anti-Dumping Agreement.

4 Panel Report, paras. 7.99-7.111.
5 Panel Report, paras. 7.112-7.117.
6 Panel Report, paras. 7.118-7.125.
7 Panel Report, paras. 7.126-7.130.
8 Panel Report, footnote 366.
9 Panel Report, paras. 7.54-7.97.
10 Panel Report, paras. 7.97, 7.110, and 7.149.
11 Panel Report, paras. 7.84 and footnote 277 and paras. 7.85, 7.119, and 7.120.

11. Indonesia also respectfully requests the Appellate Body to find that the Panel acted
inconsistently with Article 11 of the DSU and Article 17.6(ii) of the Anti -Dumping Agreement for
the reasons provided in section II of this Notice of Appeal.
12. Finally, Indonesia requests the Appellate Body to complete the legal analysis and find that
the EU Commission acted inconsistently wit h Article 2.4 of the Anti -Dumping Agreement in its
determination of dumping margins in the underlying investigation. The factual findings contained
in the Panel Report, as well as the undisputed facts on the record in the determinations of the
EU Commission, constitute a sufficient basis to conclude that the measures at issue were
inconsistent with Article 2.4 of the Anti-Dumping Agreement.