INDONESIA – IMPORTATION OF HORTICULTURAL PRODUCTS, ANIMALS AND ANIMAL PRODUCTS AB-2017-2
Document: Report of the Appellate Body
Date: 9 November 2017
Document codes: WT/DS477/AB/R; WT/DS478/AB/R
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
AB-2017-2
Report of the Appellate Body
 •

ABBREVIATIONS USED IN THIS REPORT
Abbreviation Description
co-complainants New Zealand and the United States
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of
Disputes
GATT 1994 General Agreement on Tariffs and Trade 1994
Import Licensing
Agreement
Agreement on Import Licensing Procedures
New Zealand's Panel
Request
Request for the Establishment of a Panel by New Zealand,

Panel Panel in these proceedings
Panel Report Panel Report, Indonesia – Importation of Horticultural Products,
Animals and Animal Products, ,
SCM Agreement Agreement on Subsidies and Countervailing Measures
SPS Agreement Agreement on the Application of Sanitary and Phytosanitary Measures
TBT Agreement Agreement on Technical Barriers to Trade
TRIMs Agreement Agreement on Trade-Related Investment Measures
United States' Panel
Request
Request for the Establishment of a Panel by the United States,

Working Procedures Working Procedures for Appellate Review, WT/AB/WP/6, 16 August
2010
WTO
WTO Agreement Marrakesh Agreement Establishing the
 •

CASES CITED IN THIS REPORT
Short title Full case title and citation
Argentina – Import Measures Appellate Body Reports, Argentina – Measures Affecting the Importation of
Goods, / / , adopted

Australia – Apples Appellate Body Report, Australia – Measures Affecting the Importation of
Apples from New Zealand, , adopted 17 December 2010,
DSR 2010:V, p. 2175
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
Canada – Autos Appellate Body Report, Canada – Certain Measures Affecting the Automotive
Industry, WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 June 2000,
DSR 2000:VI, p. 2985
Canada – Renewable Energy /
Canada – Feed-in Tariff
Program
Appellate Body Reports, Canada – Certain Measures Affecting the Renewable
Energy Generation Sector / Canada – Measures Relating to the Feed-in Tariff
Program, WT/DS412/AB/R / WT/DS426/AB/R, adopted 24 May 2013,
DSR 2013:I, p. 7
Canada – Wheat Exports and
Grain Imports
Appellate Body Report, Canada – Measures Relating to Exports of Wheat and
Treatment of Imported Grain, WT/DS276/AB/R, adopted 27 September
2004, DSR 2004:VI, p. 2739
Chile – Price Band System Appellate Body Report, Chile – Price Band System and Safeguard Measures
Relating to Certain Agricultural Products, WT/DS207/AB/R, adopted
23 October 2002, DSR 2002:VIII, p. 3045 (Corr.1, DSR 2006:XII, p. 5473)
Chile – Price Band System
(Article 21.5 – Argentina)
Appellate Body Report, Chile – Price Band System and Safeguard Measures
Relating to Certain Agricultural Products – Recourse to Article 21.5 of the
DSU by Argentina, WT/DS207/AB/RW, adopted 22 May 2007, DSR 2007:II,
p. 513
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
China – Raw Materials Appellate Body Reports, China – Measures Related to the Exportation of
Various Raw Materials, WT/DS394/AB/R / WT/DS395/AB/R /
WT/DS398/AB/R, adopted 22 February 2012, DSR 2012:VII, p. 3295
Colombia – Textiles Appellate Body Report, Colombia – Measures Relating to the Importation of
Textiles, Apparel and Footwear, WT/DS461/AB/R and Add.1, adopted
22 June 2016
Dominican Republic – Import
and Sale of Cigarettes
Appellate Body Report, Dominican Republic – Measures Affecting the
Importation and Internal Sale of Cigarettes, WT/DS302/AB/R, adopted
19 May 2005, DSR 2005:XV, p. 7367
EC – Bananas III Appellate Body Report, European Communities – Regime for the
Importation, Sale and Distribution of Bananas, WT/DS27/AB/R, adopted
25 September 1997, DSR 1997:II, p. 591
EC – Bananas III Panel Reports, European Communities – Regime for the Importation, Sale and
Distribution of Bananas, WT/DS27/R/ECU (Ecuador) / WT/DS27/R/GTM,
WT/DS27/R/HND (Guatemala and Honduras) / WT/DS27/R/MEX (Mexico) /
WT/DS27/R/USA (US), adopted 25 September 1997, as modified by Appellate
Body Report WT/DS27/AB/R, DSR 1997:II, p. 695 to DSR 1997:III, p. 1085
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 – Export Subsidies on Sugar Appellate Body Report, European Communities – Export Subsidies on Sugar,
WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, adopted 19 May 2005,
DSR 2005:XIII, p. 6365
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
EC – Poultry Appellate Body Report, European Communities – Measures Affecting the
Importation of Certain Poultry Products, WT/DS69/AB/R, adopted 23 July
1998, DSR 1998:V, p. 2031
WT/DS477/AB/R • WT/DS478/AB/R

Short title Full case title and citation
EC – Sardines Appellate Body Report, European Communities – Trade Description of
Sardines, WT/DS231/AB/R, adopted 23 October 2002, DSR 2002:VIII,
p. 3359
EC – Seal Products Appellate Body Reports, European Communities – Measures Prohibiting the
Importation and Marketing of Seal Products, WT/DS400/AB/R /
WT/DS401/AB/R, adopted 18 June 2014, DSR 2014:I, p. 7
Guatemala – Cement I Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding
Portland Cement from Mexico, WT/DS60/AB/R, adopted 25 November 1998,
DSR 1998:IX, p. 3767
India – Autos Panel Report, India – Measures Affecting the Automotive Sector,
WT/DS146/R, WT/DS175/R, and Corr.1, adopted 5 April 2002, DSR 2002:V,
p. 1827
Peru – Agricultural Products Appellate Body Report, Peru – Additional Duty on Imports of Certain
Agricultural Products, WT/DS457/AB/R and Add.1, adopted 31 July 2015
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
US – Clove Cigarettes Appellate Body Report, United States – Measures Affecting the Production
and Sale of Clove Cigarettes, WT/DS406/AB/R, adopted 24 April 2012,
DSR 2012: XI, p. 5751
US – Gambling Appellate Body Report, United States – Measures Affecting the Cross-Border
Supply of Gambling and Betting Services, WT/DS285/AB/R, adopted 20 April
2005, DSR 2005:XII, p. 5663 (and Corr.1, DSR 2006:XII, p. 5475)
US – Gasoline Appellate Body Report, United States – Standards for Reformulated and
Conventional Gasoline, WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I,
p. 3
US – Shrimp Appellate Body Report, United States – Import Prohibition of Certain Shrimp
and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998,
DSR 1998:VII, p. 2755
US – Shrimp (Article 21.5 –
Malaysia)
Appellate Body Report, United States – Import Prohibition of Certain Shrimp
and Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia,
WT/DS58/AB/RW, adopted 21 November 2001, DSR 2001:XIII, p. 6481
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 – Tuna II (Mexico) Appellate Body Report, United States – Measures Concerning the
Importation, Marketing and Sale of Tuna and Tuna Products,
WT/DS381/AB/R, adopted 13 June 2012, DSR 2012:IV, p. 1837
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 – Wool Shirts and Blouses Appellate Body Report, United States – Measure Affecting Imports of Woven
Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted 23 May 1997,
and Corr.1, DSR 1997:I, p. 323
WT/DS477/AB/R • WT/DS478/AB/R

APPELLATE BODY

Indonesia – Importation of Horticultural
Products, Animals and Animal Products

Indonesia, Appellant
New Zealand, Appellee
United States, Appellee

Argentina, Third Participant
Australia, Third Participant
Brazil, Third Participant
Canada, Third Participant
China, Third Participant
European Union, Third Participant
Japan, Third Participant
Korea, Third Participant
Norway, Third Participant
Paraguay, Third Participant
Singapore, Third Participant
Separate Customs Territory of Taiwan,
Penghu, Kinmen and Matsu, Third Participant
AB-2017-2

Appellate Body Division:

Bhatia, Presiding Member
Graham, Member
Ramírez-Hernández, Member

1 INTRODUCTION
1.1. Indonesia appeals certain issues of law and legal interpr etations developed in the
Panel Report, Indonesia – Importation of Horticultural Products, Animals and Animal Products 1
(Panel Report).
1.2. On 18 March 2015, New Zealand2 and the United States3 (the co -complainants) each
requested the establishment of a panel pursuant to Article 6 of the Understanding on Rules and
Procedures Governing the Settlement of Disputes (DSU) concerning 18 measures imposed by
Indonesia on the importation of hortic ultural products, animals and animal products. On
20 May 2015, pursuant to the requests of the co -complainants, a single Panel was established to
consider these complaints.4

1 WT/DS477/R, WT/DS478/R, 22 December 2016.
2 Request for the Establishment of a Panel by New Zealand, WT/DS477/9 (New Zealand's Panel
Request).
3 Request for the Establishment of a Panel by the United States, WT/DS478/9 (United States' Panel
Request).
4 Panel Report, para. 1.3 (referring to the Minutes of the DSB Meeting held on 20 May 2015,
WT/DSB/M/361).
WT/DS477/AB/R • WT/DS478/AB/R

1.3. The 18 measures challenged by the co-complainants comprise: (i) discrete elements of
Indonesia's import licensing regime for horticultural products (Measures 1 through 8)5;
(ii) Indonesia's import licensing regime for horticultural products as a whole (Measure 9)6;
(iii) discrete elements of Indonesia's import licensing regime for animals and animal products
(Measures 10 t hrough 16)7; (iv) Indonesia's import licensing regime for animals and animal
products as a whole (Measure 17)8; and (v) the requirement whereby importation of horticultural
products, animals and animal products dep ends upon Indonesia's determination of the sufficiency
of domestic supply to satisfy domestic demand (Measure 18).9

5 The discrete elements of Indonesia's import licensing regime for horticultural products challenged by
the co-complainants are set out in the Panel Report as follows:
- Measure 1 (limited application windows and validity periods) – a combination of limited application
windows and six-month validity periods of the import recommendations obtained from the Ministry of
Agriculture and the import approvals obtained from the Ministry of Trade (para. 2.33. See also
para. 2.11);
- Measure 2 (periodic and fixed import terms) – the requirement to import horticultural products only
within the terms of the import recommendations and import approvals (para. 2.35);
- Measure 3 (80% realization requirement) – the requirement that registered importers of fresh
horticultural products import at least 80% of the quantity of each type of product specified on their
import approvals for every six-month validity period (para. 2.37);
- Measure 4 (harvest period requirement) – the requirement that the importation of horticultural
products takes place prior to, during, and after the respective domestic harvest seasons within a
certain time period (para. 2.39);
- Measure 5 (storage ownership and capacity requirements) – the requirement that importers must own
their storage facilities with sufficient capacity to hold the full quantity requested on their import
application (para. 2.41);
- Measure 6 (use, sale and distribution requirements for horticultural products) – the requirements that
limit the use, sale, and distribution of the imported products (para. 2.43);
- Measure 7 (reference prices for chillies and fresh shallots for consumption) – the implementation of a
reference price system by the Ministry of Trade on imports of chillies and fresh shallots for
consumption (para. 2.45); and
- Measure 8 (six-month harvest requirement) – the requirement that all imported fresh horticultural
products have been harvested less than six months prior to importation (para. 2.48).
6 Panel Report, para. 2.49.
7 The discrete elements of Indonesia's import licensing regime for animals and animal products
challenged by the co-complainants are set out in the Panel Report as follows:
- Measure 10 (prohibition of importation of certain animals and animal products, except in emergency
circumstances) – the prohibition on the importation of certain bovine meat, offal, carcass, and
processed products as well as of certain non-bovine and processed products (para. 2.50);
- Measure 11 (limited application windows and validity periods) – a combination of requirements,
including the prohibition on importers from applying for import recommendations and import
approvals outside four one-month periods, the provision that import approvals are valid for only the
three-month duration of each quarter, and the requirement that importers are only permitted to apply
for import recommendations and import approvals in the month preceding the start of the relevant
quarter (para. 2.52);
- Measure 12 (periodic and fixed import terms) – the requirement to import only animals and animal
products within the terms of the import recommendations and import approvals, the prohibition of
importing types/categories of carcasses, meat, and/or their processed products other than as
specified in import approvals and import recommendations, and the prohibition from requesting
changes to the elements specified in the import recommendations once they have been issued
(para. 2.54);
- Measure 13 (80% realization requirement) – the requirement whereby registered importers must
import at least 80% of each type of product covered by their import approvals every year
(para. 2.56);
- Measure 14 (use, sale, and distribution of imported bovine meat and offal requirements) – certain
requirements that limit the use, sale, and distribution of imported animals and animal products,
including bovine meat and offal (para. 2.58);
- Measure 15 (domestic purchase requirement) – the requirement imposed upon importers of large
ruminant meats to absorb local beef (para. 2.60); and
- Measure 16 (beef reference price) – the implementation of a reference price system on imports of
certain animals and animal products (para. 2.62).
8 Panel Report, para. 2.64.
9 Panel Report, para. 2.65.
WT/DS477/AB/R • WT/DS478/AB/R

1.4. The Panel enumerated the 18 measures at issue using the following table10:
A. IMPORT LICENSING REGIME FOR HORTICULTURAL PRODUCTS
DISCRETE ELEMENTS OF THE REGIME:
Measure 1 Limited application windows and validity periods
Measure 2 Periodic and fixed import terms
Measure 3 80% realization requirement
Measure 4 Harvest period requirement
Measure 5 Storage ownership and capacity requirements
Measure 6 Use, sale and distribution requirements for horticultural products
Measure 7 Reference prices for chillies and fresh shallots for consumption
Measure 8 Six-month harvest requirement
REGIME AS A WHOLE:
Measure 9 Import licensing regime for horticultural products as a whole
B. IMPORT LICENSING REGIME FOR ANIMALS AND ANIMAL PRODUCTS
DISCRETE ELEMENTS OF THE REGIME:
Measure 10 Prohibition of importation of certain animals and animal products, except in
emergency circumstances
Measure 11 Limited application windows and validity periods
Measure 12 Periodic and fixed import terms
Measure 13 80% realization requirement
Measure 14 Use, sale and distribution of imported bovine meat and offal requirements
Measure 15 Domestic purchase requirement
Measure 16 Beef reference price
REGIME AS A WHOLE:
Measure 17 Import licensing regime for animals and animal products as a whole
C. SUFFICIENCY REQUIREMENT
Measure 18 Sufficiency of domestic production to fulfil domestic demand

1.5. Additional factual aspects of this dispute are set forth in greater detail in paragraphs 2.1
through 2.66 of the Panel Report.
1.6. Before the Panel, New Zealand and the United States claimed that the 18 measures imposed
by Indonesia are inconsistent with Article XI:1 of the General Agreement on Tariffs and Trade
1994 (GATT 1994) and Article 4.2 of the Agree ment on Agriculture. Specifically, they claimed that
the following measures are inconsistent with these provisions : (i) Indonesia's im port licensing
regime for horticultural products, both when viewed as a single measure and when its components
are viewed as individual measures; (ii) Indonesia's import licensing regime for animals and animal
products, both when viewed as a single measure and when its components are viewed as
individual measures; and (iii) Indonesia's import restrictions based on the sufficiency of domestic
production.11 Moreover, the co-complainants claimed that Measures 6, 14, and 15 are inconsistent

11 Panel Report, paras. 3.1.a-3.1.c (referring to New Zealand's Panel Request, pp. 1-7; first written
submission to the Panel, para. 435) and para. 3.3 (referring to United States' Panel Request; first written
submission to the Panel, para. 395; second written submission to the Panel, para. 242).
WT/DS477/AB/R • WT/DS478/AB/R

with Article III:4 of the GATT 1994.12 Finally, to the extent that these measures are subject to the
disciplines of the Agreement on Import Licensing Procedures (Import Licensing Agreement), the
co-complainants claimed that Measures 1 and 11 are inconsistent with Article 3.2 of the Import
Licensing Agreement13, or, alternatively, with Article 2.2(a) of that Agreement.14
1.7. Indonesia requested the Panel to reject the co-complainants' claims in their entirety. 15 In
particular, Indonesia argued that the measures at issue are not inconsistent with Article XI:1 of
the GATT 1994 and Article 4.2 of the Agreement on Agriculture .16 In addition, Indonesia raised
defences under Article XX(a), (b), and (d) of the GATT 1994 with respect to the claims of violation
under Articles XI:1 and III:4 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture. 17
Indonesia also invoked Article XI:2(c)(ii) of the GATT 1994 as a defence with respect to the claims
of violation under Article XI:1 of the GATT 1994 concerning Measures 4, 7, and 16.18
1.8. In the Panel Report, circulated to Members of the World Trade Organization (WTO) on
22 December 2016, the Panel addressed as a preliminary matter the issue of the order of analysis
of the co -complainants' claims. The Panel considered that Article XI:1 of the GATT 1994 is the
provision that deals specifically with quantitative restrictions, and thus decided to commence its
examination of the co-complainants' claims with Article XI:1 of the GATT 1994, rather than under
Article 4.2 of the Agreement on Agriculture.19 The Panel added that , if the measures were to be
justified under Article XX of the GATT 1994 , it would not need to analyse the claims under
Article 4.2 of the Agreement on Agriculture. This is because footnote 1 to Article 4.2 of the
Agreement on Agriculture excludes from the scope of this provision those "measures maintained …
under other general, non-agriculture-specific provisions of GATT 1994".20 In this context, the Panel
noted Indonesia's argument that, because the co -complainants had failed to provide evidence that
the challenged measures are not justified under Article XX, the "Panel [could not], as a matter of
law, rule in the complainants' favor under Article 4.2".21 The Panel, however, considered that it
was for Indonesia, not the co -complainants, to establish the defence under Article XX of the
GATT 1994.22
1.9. Turning to its analysis under Article XI:1 of the GATT 1994 , the Panel disagreed with
Indonesia that Article XI:2(c)(ii) of the GATT 1994 excludes Measures 4, 7, and 16 from the scope
of Article XI:1. Rather, t he Panel considered that " Indonesia [could not] rely upon
Article XI:2(c)(ii) of the GATT 1994 to exclude Measures 4, 7 and 16 from the scope of Article XI:1
of the GATT 1994 because, with respect to agricultural measures, A rticle XI:2(c) has been
rendered inoperative by Article 4.2 of the Agreement on Agriculture."23

12 Panel Report, paras. 3.1.d-3.1.e (referring to New Zealand's Panel Request, pp. 3 and 5-6, fns 7, 12,
13 Panel Report, para. 3.1.f (referring to New Zealand's Panel Request, pp. 2 and 4, fns 5 and 8;
first written submission to the Panel, para. 435) and para. 3.4 (referring to United States' Panel Request, pp. 2
and 4, fns 5 and 8; first written submission to the Panel, paras. 384 and 394).
14 Panel Report, para. 3.1.f (referring to New Zealand's response to Panel question No. 5) and fn 241 to
para. 3.3.
15 Panel Report, para. 3.6 (referring to Indonesia's first written submission to the Panel, para. 189;
second written submission to the Panel, para. 278).
16 Panel Report, paras. 7.69-7.72, 7.100, 7.119-7.121, 7.141-7.143, 7.164-7.165, 7.186-7.187,
7.208-7.209, 7.232-7.233, 7.251-7.255, 7.282-7.284, 7.307-7.309, 7.336, 7.361-7.362, 7.382-7.383, 7.411-
7.414, 7.435, 7.458-7.464, and 7.487. The Panel observed that most of Indonesia's arguments under
Article XI:1 of the GATT 1994 applied mutatis mutandis to the claims under Article 4.2 of the Agreement on
Agriculture. (Ibid., para. 7.831)
17 Panel Report, para. 7.27.
18 Panel Report, paras. 7.27 and 7.58 (referring to Indonesia's second written submission to the Panel,
paras. 197, 199, and 203).
19 Panel Report, paras. 7.32-7.33.
20 Panel Report, para. 7.33 (quoting fn 1 to Article 4.2 of the Agreement on Agriculture).
21 Panel Report, para. 7.34 (quoting Indonesia's second written submission to the Panel, para. 38).
22 Panel Report, para. 7.34.
23 Panel Report, para. 7.60.
WT/DS477/AB/R • WT/DS478/AB/R

1.10. The Panel made the following findings with respect to the co -complainants' claims under
Article XI:1 of the GATT 1994:
a. Measures 1 through 7, 9 , and 11 through 17 are inconsistent with Article XI:1 because,
by virtue of their design, architecture , and revealing structure, they constitute a
restriction having a limiting effect on importation24;
b. Measures 8 and 10 are inconsistent with Article XI:1 because, by virtue of their design,
architecture, and revealing structure, they constitute a prohibition on importation25; and
c. Measure 18 is inconsistent as such with Article XI:1 because, by virtue of its design,
architecture, and revealing structure, it constitutes a restri ction having a limiting effect
on importation.26
1.11. Having reached these findings under Article XI:1 of the GATT 1994 , the Panel addressed
Indonesia's defences under Article XX of the GATT 1994 and found that:
a. Indonesia ha d failed to demonstrate that Measures 1, 2 , and 3 are justified under
Article XX(d) of the GATT 199427;
b. Indonesia had failed to demonstrate that Measure 4 is justified under Article XX(b) of the
GATT 199428;
c. Indonesia ha d failed to demonstrate that Measures 5 and 6 are justified under
Article XX(a), (b), and (d) of the GATT 199429;
d. Indonesia had failed to demonstrate that Measure 7 is justified under Article XX(b) of the
GATT 199430;
e. Indonesia had failed to demonstrate that Measure 8 is justified under Article XX(b) of the
GATT 199431; and
f. Indonesia ha d failed to demonstrate that Measures 9 through 18 are justified under
Article XX(a), (b), or (d) of the GATT 1994, where appropriate.32
1.12. In light of these findings, the Panel declined to rule on the co -complainants' claims under
Article 4.2 of the Agreement on Agriculture because "its findings pertaining to the inconsistency of
Measures 1 through 18 with Article XI:1 of the GATT 1994 and the absence of justification under
Articles XX(a), (b) or (d) of the GATT 1994 ensure the effective resolution of th is dispute."33 The
Panel equally declined to rule on New Zealand's claims under Article III:4 of the GATT 1994 and
the co -complainants' claims under Article 3.2 of the Import Licensing Agreement because its
earlier findings in respect of the relevant measures ensure the effective resolution of this dispute.34
The Panel further declined to rule on the United States' claims under Article III:4 of the

24 Panel Report, para. 8.1.b.i. See also paras. 7.92, 7.112, 7.134, 7.156, 7.179, 7.200, 7.227, 7.270,
7.327, 7.349, 7.375, 7.398, 7.428, 7.451, and 7.478.
25 Panel Report, para. 8.1.b.ii. See also paras. 7.243 and 7.299.
26 Panel Report, para. 8.1.b.iii. See also para. 7.501. Having reached this finding, the Panel declined to
rule on whether Measure 18 is also inconsistent as applied with Article XI:1 of the GATT 1994.
27 Panel Report, para. 8.1.c.i. See also paras. 7.586, 7.595, and 7.606.
29 Panel Report, para. 8.1.c.iii. See also paras. 7.661, 7.683, 7.693, 7.721, 7.743, and 7.751.
32 Panel Report, para. 8.1.c.vi. See also paras. 7.829-7.830.
34 With respect to New Zealand's claims under Article III:4 of the GATT 1994, the Panel declined to rule
because its findings pertaining to the inconsistency of Measures 6, 14, and 15 with Article XI:1 of the
GATT 1994 and the absence of justification under Article XX(a), (b), or (d) of the GATT 1994 ensure the
effective resolution of this dispute. (Panel Report, para. 8.3) Concerning the co-complainants' claims under
Article 3.2 of the Import Licensing Agreement, the Panel declined to rule because its findings pertaining to the
inconsistency of Measures 1 and 11 with Article XI:1 of the GATT 1994 ensure the effective resolution of this
dispute. (Ibid., para. 8.4). See also paras. 7.839-7.840, 7.845-7.846, 7.850-7.851, and 7.870-7.871.
WT/DS477/AB/R • WT/DS478/AB/R

GATT 199435 and the co -complainants' claims under Article 2.2(a) of the Import Licensing
Agreement because the United States and the co-complainants, respectively, "[had] failed to make
a prima facie case".36
1.13. In accordance with Article 19.1 of the DSU, and having found that Indonesia acted
inconsistently with its obligations under Article XI:1 of the GATT 1994 with respect to Measures 1
through 18, the Panel recommended that the Dispute Settlement Body (DSB) request Indonesia to
bring its measures into conformity with its obligations under the GATT 1994.37
1.14. On 17 February 2017, Indonesia 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 Appeal 38 and an appellant's
submission pursuant to Ru le 20 and Rule 21, respectively, of the W orking Procedures for
Appellate Review39 (Working Procedures).
1.15. On 7 March 2017, New Zealand and the United States each filed an appellee's submission.40
On 9 March 2017, Norway notified its intention to appear at the oral hearing as a
third participant.41 On 10 March 2017, Australia, Brazil, Canada, and the European Union each filed
a third participant's submission .42 On the same day, Argentina, Japan, Korea, Paraguay,
Singapore, and the Separat e Customs Territory of Taiwan, Penghu, Kinmen and Matsu each
notified its intention to appear at the oral hearing as a third participant.43 Subsequently, China also
notified its intention to appear at the oral hearing as a third participant.44
1.16. On 13 April 2017, the Chair of the A ppellate Body notified the Chair of the DSB that the
Appellate Body would not be able to circulate its Report in this appeal within the 60 -day period
pursuant to Article 17.5 of the DSU, or within the 90 -day period pursuant to the same provision. 45
The Chair of the Appellate Body explained that this was due to a number of factors, including the
enhanced workload of the Appellate Body in 2017 , scheduling difficulties arising from appellate
proceedings running in parallel with an overlap in the composition of the Divisions hearing the
appeals, the number and complexit y of the issues raised in this and concurrent appellate
proceedings, together with the demands that these concurrent appeals place on the
WTO Secretariat's translation services, and a shortage of s taff in the Appellate Body Secretariat.
On 18 October 2017, the Chair of the Appellate Body informed the Chair of the DSB that the
Report in these proceedings would be circulated no later than 9 November 2017.46
1.17. On 30 June 2017, the participants and third participants were informed that, in accordance
with Rule 15 of the Working Procedures, the Chair of the Appellate Body had notified the Chair of
the DSB of the Appellate Body's decision to authorize Appellate Body Member Mr Ricardo Ramírez -
Hernández to com plete the disposition of this appeal, even though his second term of office was
due to expire before the completion of the appellate proceedings.
1.18. The oral hearing in this appeal was held on 28-29 August 2017 . The participants and
five third participants (Argentina, Australia, Brazil, Japan, and Norway) made opening statements.
The participants and five third participants (Australia, Brazil, Canada, the European Union, and

35 The Panel distinguished between New Zealand's and the United States' claims under Article III:4 of
the GATT 1994. In the absence of any argumentation by the United States, the Panel found that the
United States had failed to make a prima facie case with respect to its claims under Article III:4. (Panel Report,
paras. 7.834 and 8.5) By contrast, as set out in fn 34 above, with respect to New Zealand's claims under
Article III:4, the Panel declined to rule because its findings pertaining to the inconsistency of the measures at
issue with Article XI:1 of the GATT 1994 and the absence of justification under Article XX(a), (b), or (d) of the
GATT 1994 ensure the effective resolution of this dispute. (Ibid., para. 8.3)
36 Panel Report, para. 8.5. See also paras. 7.834-7.835 and 7.852-7.853.
37 Panel Report, para. 8.7.
38 WT/DS477/11; WT/DS478/11.
39 WT/AB/WP/6, 16 August 2010.
40 Pursuant to Rule 22 of the Working Procedures.
41 Pursuant to Rule 24(2) of the Working Procedures.
42 Pursuant to Rule 24(1) of the Working Procedures.
43 Pursuant to Rule 24(2) of the Working Procedures.
44 Pursuant to Rule 24(4) of the Working Procedures.
45 WT/DS477/12; WT/DS478/12.
46 WT/DS477/13; WT/DS478/13.
WT/DS477/AB/R • WT/DS478/AB/R

Japan) responded to questions posed by the Members of the Appella te Body Division hearing the
appeal. The participants and a third participant (Japan) made closing statements.
2 ARGUMENTS OF THE PARTICIPANTS
2.1. The claims and arguments of the participants are reflected in the executive summaries of
their written submissions provided to the Appellate Body.47 The Notice of Appeal, and the
executive summaries of the participants' claims and arguments are contained in An nexes A and B
of the Addendum to this Report, WT/DS477/AB/R/Add.1, WT/DS478/AB/R/Add.1.
3 ARGUMENTS OF THE THIRD PARTICIPANTS
3.1. The arguments of the third participants that filed a written submission ( Australia, Brazil,
Canada, and the European Union) are refl ected in the executive summar ies of their written
submissions provided to the Appellate Body48, and are contained in Annex C of the A ddendum to
this Report, WT/DS477/AB/R/Add.1, WT/DS478/AB/R/Add.1.
4 ISSUES RAISED IN THIS APPEAL
4.1. The following issues are raised by Indonesia in this appeal:
a. whether the Panel erred in finding that Article XI:1 of the GATT 1994 deals more
specifically with quantitative restrictions on agricultural products than Article 4.2 of the
Agreement on Agriculture , and, accordingly, whether the Panel erred in considering the
co-complainants' claims under Article XI:1 of the GATT 1994 rather than under
Article 4.2 of the Agreement on Agriculture;
b. whether the Panel erred in determining that Indonesia bears the burden of proof under
the second part of footnote 1 to Article 4.2 of the Agreement on Agriculture;
c. whether the Panel failed to make an objective assessment of the matter under Article 11
of the DSU:
i. by failing to conduct an objective assessment of the applicability of Article 4.2 of the
Agreement on Agriculture; and
ii. by failing to conduct an objective assessment of which party bears the burden of
proof under the second part of footnote 1 to Article 4.2 of the
Agreement on Agriculture;
d. in the event that the Appellate Body finds that the Panel did not err in considering the
co-complainants' claims under Article XI:1 of the GATT 1994, rather than under
Article 4.2 of the Agreement on Agriculture , whether the Panel erred in concluding that
Article XI:2(c) of the GATT 1994 has been rendered "inoperative" by Article 4.2 of the
Agreement on Agriculture49; and
e. whether the Panel erred in finding that Indonesia had failed to demonstrate that
Measures 9 through 17 are justified under Article XX(a), (b), or (d) of the GATT 1994.

47 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).
48 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).
49 In its Notice of Appeal, Indonesia specifies that this claim is made in the alternative, that is, "[i]f 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's Notice of Appeal, Section IV, p. 2)
WT/DS477/AB/R • WT/DS478/AB/R

5 ANALYSIS OF THE APPELLATE BODY
5.1. We first address Indonesia's claims of error raised on appeal regarding : (i) the Panel's
decision on the order of analysis between Article XI:1 of the GATT 1994 and Article 4.2 of the
Agreement on Agriculture; and (ii) the burden of proo f under the second part of footnote 1 to
Article 4.2 of the Agreement on Agriculture. In so doing, we also address Indonesia's claims that,
in ruling on these two issues, the Panel committed errors under Article 11 of the DSU. We then
address the alternati ve claim of error raised by Indonesia with regard to Article XI:2(c) of the
GATT 1994. Finally, we examine Indonesia's claim on appeal under Article XX of the GATT 1994.
5.1 The Panel's decision to commence its legal analysis with the claims under
Article XI:1 of the GATT 1994
5.2. We begin by addressing Indonesia's claim of error regarding the Panel's decision to
commence its legal analysis with the co -complainants' claims raised under Article XI:1 of the
GATT 1994, rather than Article 4.2 of the Agreement on Agric ulture. Indonesia requests us to
reverse the Panel's decision on the order of analysis, as well as its findings that the 18 measures
at issue are inconsistent with Article XI:1 of the GATT 1994.50 In response, New Zealand and the
United States request us to reject Indonesia's appeal that the Panel's order of analysis constituted
a legal error, and to uphold the relevant findings of the Panel.51
5.3. Before the Panel, New Zealand and the United States rai sed claims with regard to the
18 measures at issue under, inter alia , Article XI:1 of the GATT 1994 and Article 4.2 of the
Agreement on Agriculture.52 In setting out its order of analysis, the Panel concurred with the panel
in India – Autos, stating that it is important to consider first whether a particular order is
"compelled" by principles of interpretative methodology, "which, if not followed, might constitute
an error of law".53 The Panel also recalled that, in EC – Bananas III, the Appellate Body stated that
the provision of the agreement that "deals specifically, and in detail" with the measures at issue
should be analysed first. 54 The Panel noted that: (i) all 18 measures at issue in this dispute had
been challenged under both Article XI:1 of the GATT 1 994 and Article 4.2 of the Agreement on
Agriculture; and (ii) New Zealand and the United States had brought identical claims under either
provision, namely, that all 18 measures at issue constitute quantitative restrictions. The Panel thus
considered that the provision that "deals specifically with quantitative restrictions " is Article XI:1
because Article 4.2 has a "broader scope" and refers to measures other than quantitative
restrictions.55 The Panel thus commenced its assessment with Article XI:1 of the GATT 1994.56
Having found that all 18 measures are inconsistent with Article XI:1 and that they are not justified
under Article XX of the GATT 1994, the Panel then exercised judicial economy with regard to the
claims under Article 4.2 of the Agreement on Agriculture.57
5.4. In this section, we first address Indonesia's substantive claim on appeal regarding the Panel's
sequence of analysis before turning to its claim under Article 11 of the DSU.

50 Indonesia's appellant's submission, para. 64 (referring to Panel Report, paras. 7.31-7.33, 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, and 8.1.b).
51 New Zealand's appellee's submission, para. 59; United States' appellee's submission, paras. 18,
68-69, and 205.
52 Panel Report, para. 7.27.
54 Panel Report, para. 7.31 (quoting Appellate Body Report, EC – Bananas III, para. 204).
55 Panel Report, para. 7.32.
56 Panel Report, para. 7.33.
57 Panel Report, paras. 7.832-7.833.
WT/DS477/AB/R • WT/DS478/AB/R

5.1.1 Whether the Panel erred in assessing the claims regarding the measures at issue
under Article XI:1 of the GATT 1994, rather than Article 4.2 of the Agreement on
Agriculture58
5.5. On appeal, Indonesia submits that the Panel " erred in determining that the provision which
dealt specifically with quantitative restrictions was Article XI:1 of the GATT 1994 and, as a result,
in assessing the 18 measures at issue under Article XI:1 of the GATT 1994, rather than Article 4.2
of the Agreement on Agriculture ."59 Indonesia further submits that the Panel "erred by not
applying Article 2 1.1 of the Agreement on Agriculture to determine that Article 4.2 of that
Agreement was lex specialis"60, so that Article 4.2 should have been applied "to the exclusion of"
Article XI:1.61 For Indonesia, Article 21.1 "does not require a conflict" between the GATT 1994 and
the Agreement on Agriculture in order to apply. 62 Rather, the term "subject to" in Article 21.1
means that the Panel should have found that the Agreement on Agr iculture prevails over the
GATT 1994, because Article XI:1 and Article 4.2 concern the same matter, and Article 4.2 contains
specific provisions dealing specifically with the measures at issue from both a substantive and a
procedural perspective. 63 Indonesia thus contends that Article 21.1 prevents the cumulative
application of Article XI:1 and Article 4.2, even absent a conflict between these two provisions.64
5.6. In response, New Zealand and the United States argue that Article 21.1 of the Agreement on
Agriculture applies only in the event of conflict between provisions of the Agreement on Agriculture
and provisions of the GATT 1994 or other Multilateral Trade Agreements in Annex 1 A to the
Marrakesh Agreement Establishing the World Trade Organization ( WTO Agreement ).65 In the
absence of such conflict between Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement
on Agriculture, the two provisions apply cumulatively 66, and the mere fact that one provision is
"more specific" than the other does not mean that the former excludes the application of the
latter.67 Furthermore, New Zealand and t he United States assert that panels have a "margin of
discretion" in choosing the sequence of their analysis, the limit of which is not based on specificity,
but rather on whether the panel's sequence of analysis leads to a "'flawed' substantive analysis".68
In the present dispute, New Zealand and the United States argue that nothing in the Panel's
decision to start its assessment under Article XI:1 instead of Article 4.2 affected the substance of
its analysis of the claims presented to it, and that the sequ ence of analysis was within the Panel's

58 In this respect, we note that, while Indonesia's claim on appeal is entitled "The Panel Erred in
Determining that Article XI:1 of the GATT 1994 is More Specific than Article 4.2 of the Agreement on
Agriculture" in its appellant's submission, its arguments on specificity essentially relate to whether "the
Agreement on Agriculture would apply to the exclusion of the more general agreements, such as the
GATT 1994, to the extent that the Agreement on Agriculture contains specific provisions dealing specifically
with the same matter". (Indonesia's appellant submission, heading II and para. 53 (emphasis original))
Indonesia subsequently reiterated at the oral hearing, both in its opening and closing statements and in
response to questioning, that its first ground of appeal addresses whether both agreements can apply
cumulatively to the challenged measures, or whether by virtue of Article 21.1 of the Agreement on Agriculture,
Article 4.2 of the Agreement on Agriculture applies to the exclusion of Article XI:1 of the GATT 1994 because
Article 4.2 contains more specific substantive and procedural rules.
59 Indonesia's appellant's submission, para. 39.
60 Indonesia's appellant's submission, para. 62.
61 Indonesia's appellant's submission, para. 53. (emphasis original)
62 Indonesia's appellant's submission, para. 53.
63 Indonesia's opening statement at the oral hearing.
64 Indonesia argued at the oral hearing that, even if the differences between Article XI:1 and Article 4.2
do not amount to a conflict, the Panel should have applied the specific rules on quantitative import restrictions
on agricultural goods under Article 4.2, as required under Article 21.1. (Indonesia's opening statement at the
oral hearing)
65 New Zealand's appellee's submission, paras. 22 and 35-36; United States' appellee's submission,
para. 44.
66 New Zealand's appellee's submission, paras. 28-29; United States' appellee's submission, paras. 41,
51, and 53.
67 United States' appellee's submission, para. 53.
68 New Zealand's appellee's submission, paras. 40-41 (quoting Appellate Body Report, Canada – Autos,
para. 151). See also ibid., para. 43; United States' appellee's submission, paras. 21 and 24.
WT/DS477/AB/R • WT/DS478/AB/R

margin of discretion. 69 New Zealand and the United States further argue that Article 4.2 of the
Agreement on Agriculture is not, in any event, more specific than Article XI:1 of the GATT 1994.70
5.7. We begin by examining t he relationship between Article XI:1 of the GATT 1994 and
Article 4.2 of the Agreement Agriculture, in light of Article 21.1 of the Agreement on Agriculture. If
this examination leads us to reject Indonesia's argument that Article 4.2 applies "to the exclusion
of" Article XI:1 71, then we will examine whether, nevertheless, Article 4.2 should have been
considered before Article XI:1, and whether the Panel's failure to do so constitutes an error of law.
5.8. Article 21.1 of the Agreement on Agriculture reads:
The provisions of GATT 1994 and of other Multilateral Trade Agreements in Annex 1A
to the WTO Agreement shall apply subject to the provisions of this Agreement.
5.9. Article 21.1 does not expressly state that the Agreement on Agriculture excludes the
application of the GATT 1994 or other Multilateral Trade Agreements in Annex 1A to the
WTO Agreement. Although the text of Article 21.1 does not explicitly refer to the concept of
"conflict" as a condition for applying provisions of the Agreement on Agriculture to the e xclusion of
provisions of other WTO covered agreements, the Appellate Body in EC – Export Subsidies on
Sugar interpreted Article 21.1 as follows:
Members explicitly recognized that there may be conflicts between the Agreement on
Agriculture and the GATT 19 94, and explicitly provided, through Article 21, that the
Agreement on Agriculture would prevail to the extent of such conflicts. Similarly, the
General interpretative note to Annex 1A to the WTO Agreement states that, "[i]n the
event of conflict between a provision of the [GATT 1994] and a provision of another
agreement in Annex 1A …, the provision of the other agreement shall prevail to the
extent of the conflict." The Agreement on Agriculture is contained in Annex 1A to the
WTO Agreement.72
5.10. In that case, the Appellate Body read Article 21.1 to mean that the provisions of the
Agreement on Agriculture prevailed over an inconsistent footnote in Part IV of the
European Communities' Schedule CXL, which is an integral part of the GATT 1994. 73 This is
consistent with the approach of the Appellate Body in EC – Bananas III, when it found that "the
provisions of the GATT 1994 … apply to market access commitments concerning agricultural
products, except to the extent that the Agreement on Agriculture contains specific provisions
dealing specifically with the same matter." 74 That sentence, in the context of EC – Bananas III,
describes situations of conflicts between the GATT 1994 and the Agreement on Agriculture. In that
dispute, the question before the Appellate Body was "whether the market access concessions for
agricultural products made by the European Communities pursuant to the Agreement on
Agriculture prevail over Article XIII of the GATT 1994", pursuant to Article 4.1 and Article 21.1 of
the Agreement on Agricultur e.75 The Appellate Body thus assessed whether provisions of the
Agreement on Agriculture explicitly "permit Members to act inconsistently with Article XIII of the
GATT 1994".76

69 New Zealand's appellee's submission, paras. 44-45; United States' appellee's submission, paras. 21,
and 34-39.
70 New Zealand's appellee's submission, paras. 47-53; United States' appellee's submission,
paras. 62-64.
71 Indonesia's appellant's submission, para. 53. (emphasis original)
72 Appellate Body Report, EC – Export Subsidies on Sugar, para. 221. (italics omitted)
73 Appellate Body Report, EC – Export Subsidies on Sugar, paras. 222-226.
74 Appellate Body Report, EC – Bananas III, para. 155. (italics omitted)
75 Appellate Body Report, EC – Bananas III, para. 153. (italics omitted)
76 Appellate Body Report, EC – Bananas III, para. 157. In particular, the Appellate Body stated:
There is nothing in Articles 4.1 or 4.2, or in any other article of the Agreement on Agriculture,
that deals specifically with the allocation of tariff quotas on agricultural products. If the
negotiators had intended to permit Members to act inconsistently with Article XIII of the
GATT 1994, they would have said so explicitly.
(Ibid. (italics omitted))
WT/DS477/AB/R • WT/DS478/AB/R

5.11. Accordingly, the phrase "except to the extent that the Agreement on Agriculture contains
specific provisions dealing specifically with the same matter" 77 identifies instances where a
provision of the Agreement on Agriculture conflicts with the GATT 1994 or with other Multilateral
Trade Agreements in Annex 1A to the WTO Agreement . In EC – Bananas III , that was not the
case, and thus, the provisions of the Agreement on Agriculture and the GATT 1994 applied
cumulatively.78
5.12. Indonesia argues that Article 21.1 of the Agreement on Agriculture: (i) "does not require a
conflict between the GATT 1994 and … the Agreement on Agriculture" to apply, but (ii) requires
the Agreement on Agriculture to "apply to the exclusion of the more general agreements, such as
the GATT 1994, to the extent that the Agreement on Agriculture contains specific provisions
dealing specifically with the same matter ."79 Indonesia's interpretation is not consistent with
Article 21.1, as interpreted by the Appellate Body, according to which the provisions of the
Agreement on Agriculture prevail in the event of a conflict between provisions of the Agreement on
Agriculture and provisions of the GATT 1994 or other Multilateral Trade Agreements in Annex 1A of
the WTO Agreement.80
5.13. In light of these considerations, we assess next whether Article XI:1 of the GATT 1994 and
Article 4.2 of the Agreement on Agriculture are in conflict or whether there is another factor
preventing their cumulative application. In so doing, we focus on whet her the content of and the
relationship between these two provisions permit their cumulative application in this dispute.
5.14. Before the Panel, New Zealand and the United States claimed that all 18 measures at issue
constitute quantitative restrictions that a re inconsistent with Article 4.2 of the Agreement on
Agriculture and Article XI:1 of the GATT 1994 , which both discipline quantitative restrictions .81 In
addition, all 18 measures at issue apply to agricultural products82, and the co-complainants' claims
concern the same matter under either provision, namely, quantitative import restrictions on
agricultural goods. In its appellant's submission, Indonesia argued that Article 4.2 imposes "a
more specific obligation" than Article XI:1, because Members that are f ound to act inconsistently
with Article 4.2 have to convert their measures into ordinary customs duties, whereas
inconsistency with Article XI:1 is remedied through the elimination of the quantitative restriction at
issue.83
5.15. Although Article 4.2 of the Agreement on Agriculture generally applies to: (i) a broader
range of measures; and (ii) a narrower scope of products than Article XI:1 of the GATT 1994; both
provisions prohibit Members from maintaining quantitative import restrictions on agricultural
products.84 A measure constituting a quantitative import restriction on agricultural products would
therefore be inconsistent with both Article XI:1 and Article 4.2. Such findings of inconsistency
would also result in the same implementation obligations under eit her provision, that is, to bring
the measure into conformity with those provisions. The Appellate Body has suggested previously
that there is essentially no difference between the obligation in Article XI:1 to eliminate

77 Appellate Body Report, EC – Bananas III, para. 155. (italics omitted)
78 Appellate Body Report, EC – Bananas III, paras. 157-158. See also Appellate Body Report,
US –Upland Cotton, paras. 547-550.
79 Indonesia's appellant's submission, para. 53. (emphasis original) Indonesia further submits that such
an approach was confirmed by the Appellate Body in Chile – Price Band System. (Ibid., paras. 52 and 56) We
note, however, that the Appellate Body in Chile – Price Band System did not exclude the application of
Article II:1(b) of the GATT 1994 in favour of Article 4.2 of the Agreement on Agriculture. In that dispute, both
provisions applied cumulatively. (Appellate Body Report, Chile – Price Band System, para. 190)
80 Appellate Body Reports, EC – Export Subsidies on Sugar, para. 221; EC – Bananas III, para. 155.
81 Panel Report, paras. 3.1.a-3.1.c, 3.3, and 7.32.
82 We recall that the 18 measures at issue concern Indonesia's import licensing regimes for horticultural
products and animals and animal products. (Panel Report, para. 2.32) Indonesia does not dispute that these
import licensing regimes fall within the scope of Annex 1 to the Agreement on Agriculture. (Indonesia's
appellant's submission, para. 10)
83 Indonesia's appellant's submission, para. 59.
84 Article XI:1 of the GATT 1994, which applies to all types of goods, requires the elimination of
"prohibitions or restrictions other than duties, taxes or other charges". Article 4.2 of the Agreement on
Agriculture, which applies only to agricultural products, requires the elimination of "any measures of the kind
which have been required to be converted into ordinary customs duties", including quantitative import
restrictions, as footnote 1 thereto provides.
WT/DS477/AB/R • WT/DS478/AB/R

quantitative restrictions and the obligation in Article 4.2 "not [to] maintain, resort to, or revert to"
measures covered by Article 4.2.85
5.16. To the extent that they apply to the claims challenging the 18 measures at issue as
quantitative restrictions, Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on
Agriculture thus contain the same substantive obligations, namely, the obligation not to maintain
quantitative import restrictions on agricultural products. Had the Panel decided to commence its
analysis with Article 4.2 rather than Article XI:1, it would have, in essence, conducted the same
analysis to determine whether the 18 measures at issue are "quantitative import restrictions"
within the meaning of footnote 1 to Article 4.2.86
5.17. Furthermore, a measure found to be a quantitative import restriction on agricultural
products inconsistent with Article XI:1 may potentially be justified under Article XX of the
GATT 1994, and the second part of footnote 1 to Article 4.2 of the Agreement on Agriculture also
incorporates Article XX of the GATT 1994.87 To the extent that they apply to the claims regarding
the 18 measures at issue in this dispute, Article XI:1 of the GATT 1994 and Article 4.2 of the
Agreement on Agriculture are thus subject to the same exceptions under Article XX of the
GATT 1994, and, as we determine further below in our analysis, the same burden of proof applies
under Article XX, regardless of whether that provision is invoked in relation to Article XI:1 or
Article 4.2.88
5.18. In light of the above, we consider that Article 4.2 of the Agreement on Agriculture does not
apply "to the exclusion of"89 Article XI:1 of the GATT 1994 in relation to the claims challenging the
18 measures at issue as quantitative restrictions. Both provisions contain the same substantive
obligations in relation to these claims and, thus, in these circumstances, they apply cumulatively.90
Whether a mandatory sequence of analysis exists between Article XI:1 of the 5.1.2
GATT 1994 and Article 4.2 of the Agreement on Agriculture
5.19. We next examine whether, in the circumstances of this case, there is a mandatory sequence
of analysis between Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture,
which, if not followed by the Panel, would amount to an error of law. 91 We recall that the Panel
decided to begin its analysis under Article XI:1, because it considered that Article XI:1 is more
specific with respect to quantitative restrictions than Article 4.2, which refers also to "measures
other than quantitative restrictions".92
5.20. Indonesia argues that "the Pa nel erred in determining that the provision which dealt
specifically with quantitative restrictions was Article XI:1 of the GATT 1994 and, as a result, in
assessing the 18 measures at issue under Article XI:1 of the GATT 1994, rather than Article 4.2 of
the Agreement on Agriculture ."93 According to Indonesia, the Panel should "have concluded that
Article 4.2 applies more specifically to the products at issue, i.e. agricultural products ."94

85 In Chile – Price Band System, the Appellate Body stated that the conversion into ordinary customs
duties of measures within the meaning of Article 4.2 began during the Uruguay Round negotiations, and that,
after the signing of the WTO Agreement, "there was no longer an option to replace measures covered by
Article 4.2 with ordinary customs duties in excess of the levels of previously bound tariff rates."
(Appellate Body Report, Chile – Price Band System, para. 206) After the entry into force of the
WTO Agreement, Members simply have to "refrain from maintaining, reverting to, or resorting to, measures
prohibited by Article 4.2". (Ibid.)
86 The Panel found that each of the 18 measures at issue is inconsistent with Article XI:1 of the
GATT 1994 because, by virtue of its design, architecture, and revealing structure, it constitutes either a
restriction having a limiting effect on importation (Measures 1 through 7, 9, and 11 through 18) or a
prohibition on importation (Measures 8 and 10). (Panel Report, para. 8.1.b)
87 See section 5.2.2 below.
88 See section 5.2.2 below.
89 Indonesia's appellant's submission, para. 53. (emphasis original)
90 See also section 5.2 below.
91 See Appellate Body Report, Canada – Wheat Exports and Grain Imports, para. 109.
92 Panel Report, para. 7.32.
93 Indonesia's appellant's submission, para. 39.
94 Indonesia's appellant's submission, para. 47. Indonesia further asserts that the Panel's reliance on
Article 21.1 of the Agreement on Agriculture to find that "Article XI:2(c) of the GATT 1994 is no longer
available with respect to agricultural products" further suggests that Article 4.2 "deals more specifically with
quantitative import restrictions than does Article XI:1". (Indonesia's appellant's submission, para. 58 (referring
WT/DS477/AB/R • WT/DS478/AB/R

New Zealand and the United States respond that the structure of Article XI:1 and Article 4.2 shows
that no mandatory order of analysis is warranted, and that nothing in the Panel's chosen order of
analysis prevented it from undertaking a logical consideration of the claims presented to it, or
affected the substance of its analysis under Article XI:1.95
5.21. We have concluded above that Article 4.2 of the Agreement on Agriculture does not apply to
the exclusion of Article XI:1 of the GATT 1994, and that these two provisions apply cumulatively to
the measures at issue in this disput e.96 The remaining question before us is whether, in the
absence of a conflict, the Panel was required to follow a particular sequence in addressing the
claims raised under Article 4.2 and Article XI:1.
5.22. In the context of addressing the relationship between different provisions of the covered
agreements, the Appellate Body considered in Canada – Wheat Exports and Grain Imports that "it
is the nature of the relationship between two provisions that will determine whether there exists a
mandatory sequence of analysis" and that "[i]n some cases, this relationship is such that a failure
to structure the analysis in the proper logical sequence will have repercussions for the substance
of the analysis itself." 97 In Canada – Renewable Energy / Canada – Feed-in Tariff P rogram, the
Appellate Body also considered that , while "[i]ssues of sequencing may become relevant to a
logical consideration of claims under different agreements", nothing in Article III:4 of the
GATT 1994, Article 2.1 of the Agreement on Trade -Related In vestment Measures
(TRIMs Agreement), and Article 3.1(b) of the Agreement on Subsidies and Countervailing
Measures (SCM Agreement) "indicate that there is an obligatory sequence of analysis to be
followed when claims are made" under such provisions. 98 The Appellate Body further noted that
"Japan ha[d] not indicated why commencing the analysis with the SCM Agreement could lead to a
different outcome than commencing with the GATT 1994 and the TRIMs Agreement" 99, as the
panel had done, and concluded that, "[u] ltimately, the decision in this case as to whether to
commence the analysis with the claims under the SCM Agreement or those under the GATT 1994
and the TRIMs Agreement was within the [p]anel's margin of discretion ."100 The Panel in this
dispute may have bee n required to follow a particular sequence between Article XI:1 of the
GATT 1994 and Article 4.2 of the Agreement on Agriculture if, for instance, addressing Article 4.2
first would have led to a different substantive outcome than commencing the analysis w ith
Article XI:1, as the Panel did.101
5.23. We have said above that the obligations of Article XI:1 of the GATT 1994 and Article 4.2 of
the Agreement on Agriculture are substantively and procedurally the same insofar as they apply to
the co-complainants' claims challenging the 18 measures at issue.102 Indonesia has not explained
why starting with an analysis under Article 4.2 would have led to a different substantive outcome.
As we see it, the analysis that the Panel would have conducted under Article 4.2 as to whet her the
measures at issue are prohibited quantitative import restrictions is the same as the analysis that
the Panel conducted under Article XI:1. Had the Panel commenced its analysis with Article 4.2, it
would have equally examined whether the measures ar e justified under Article XX, as provided for
in the second part of footnote 1 to Article 4.2, and reached the same conclusions as to whether the
measures are justified under Article XX.103 Furthermore, had the Panel commenced its analysis
with Article 4.2 and found that the measures at issue are inconsistent with that provision and not
justified under Article XX of the GATT 1994, it could have equally chosen to exercise judicial

to Panel Report, para. 7.59)) We discuss the specific issues pertaining to Article XI:2(c) of the GATT 1994 in
section 5.3 below.
95 New Zealand's appellee's submission, paras. 42-45; United States' appellee's submission,
paras. 34-35.
96 See also Appellate Body Reports, EC – Export Subsidies on Sugar, para. 221; EC – Bananas III,
para. 155.
97 Appellate Body Report, Canada – Wheat Exports and Grain Imports, para. 109.
98 Appellate Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program, paras. 5.8
and 5.5, respectively.
99 Appellate Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program, para. 5.8.
100 Appellate Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program, para. 5.8
(referring to Appellate Body Report, Canada – Wheat Exports and Grain Imports, para. 126).
101 A particular sequence may also have been required for reasons related to judicial economy, if, for
example, starting its analysis with Article 4.2, rather than with Article XI:1, would have allowed the Panel to
exercise judicial economy under Article XI:1, while the reverse is not true.
102 See also section 5.2 below.
103 As we examine in section 5.2.2 below, we do not consider that a different burden of proof applies
depending on whether Article XX is invoked in relation to Article XI:1 or Article 4.2.
WT/DS477/AB/R • WT/DS478/AB/R

economy with respect to the claims under Article XI:1. Thus, we do not see how s tarting the
analysis with Article XI:1 rather than with Article 4.2 could constitute " a failure to structure the
analysis in the proper logical sequence [that had] repercussions for the substance of the analysis
itself".104
5.24. We turn now to Indonesia's argument that the Panel should "have concluded that Article 4.2
applies more specifically to the products at issue, i.e. agricultural products", and consider the
relative specificity of Article XI:1 of the GATT 1994 in relation to Article 4.2 of the Agreement on
Agriculture.105 We observe that an analysis of the relative specificity of Article XI:1 and Article 4.2
may lead to different conclusions, depending on the weight given to different criteria, such as the
product coverage, the types of measures covered, or t he specificity of the obligation contained in
either provision.106 As we have said above, commencing the analysis with Article XI:1 rather than
with Article 4.2 had no repercussions for the substance of the analysis, and, to the extent that
they apply to the 18 measures at issue, Article XI:1 and Article 4.2 impose the same substantive
obligation not to maintain quantitative import restrictions on agricultural products. In light of the
above, reaching a conclusion as to the relative specificity of either Arti cle XI:1 or Article 4.2 would
not be determinative for resolving this dispute.
5.25. Thus, there is no mandatory sequence of analysis between Article 4.2 of the Agreement on
Agriculture and Article XI:1 of the GATT 1994 in this dispute. For the reasons stated a bove, the
decision as to whether to commence the analysis with the claims under Article XI:1 or those under
Article 4.2 was within the Panel's margin of discretion.
Whether the Panel failed to make an objective assessment of the applicability of 5.1.3
Article 4.2 of the Agreement on Agriculture
5.26. Indonesia claims that the Panel acted inconsistently with Article 11 of the DSU because it
failed to make an objective assessment of the applicability of Article 4.2 of the Agreement on
Agriculture.107 Indonesia takes iss ue with the fact that the Panel addressed the claims under
Article XI:1 of the GATT 1994 and the defences under Article XX of the GATT 1994, and then
exercised judicial economy with respect to whether the measures at issue comply with Article 4.2
of the Ag reement on Agriculture. 108 Indonesia argues that the Panel should have examined the
co-complainants' claims under Article 4.2 of the Agreement on Agriculture because it is the more
specific provision dealing with quantitative import restrictions on agricultu ral products.109 At the
oral hearing, Indonesia further clarified that, in its view, the Panel acted inconsistently with
Article 11 of the DSU by deciding the case based on the wrong provision, namely, Article XI:1 of
the GATT 1994. According to Indonesia, i n so doing, the Panel impaired Indonesia's due process
rights.110
5.27. New Zealand and the United States argue in response that Indonesia does not provide
arguments in support of its challenge under Article 11 of the DSU that are separate and
independent from the arguments put forward in respect of its substantive claims of legal error.

104 Appellate Body Report, Canada – Wheat Exports and Grain Imports, para. 109.
105 Indonesia's appellant's submission, para. 47.
106 For instance, the Agreement on Agriculture, which applies only to agricultural products, has a
narrower product coverage than the GATT 1994. At the same time, the obligation not to maintain, resort to, or
revert to certain types of measures in Article 4.2 of the Agreement on Agriculture applies to more types of
measures than Article XI:1 of the GATT 1994, which only addresses quantitative import and export restrictions.
107 Indonesia submits two claims on appeal under Article 11 of the DSU, namely: (i) that the Panel failed
to conduct an objective assessment of the applicability of Article 4.2 of the Agreement on Agriculture; and
(ii) that the Panel failed to conduct an objective assessment of which party bears the burden of proof under the
second part of footnote 1 to Article 4.2. (Indonesia's appellant's submission, paras. 5 and 106) Indonesia
submits both claims with a single request for us to reverse the Panel's conclusions and legal interpretations
contained in paragraphs 7.31-7.34 and 7.833 of the Panel Report, and 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, 8.1.b, and 8.2 of the Panel Report. (Ibid., paras. 106-107) In this section, we
address Indonesia's first claim under Article 11 of the DSU. Indonesia's claim that the Panel failed to conduct
an objective assessment of which party bears the burden of proof under the second part of footnote 1 to
Article 4.2 is addressed in section 5.2.3 below.
108 Indonesia's appellant's submission, para. 102.
109 Indonesia's appellant's submission, paras. 101-104.
110 Indonesia's opening statement at the oral hearing; response to questioning at the oral hearing.
WT/DS477/AB/R • WT/DS478/AB/R

According to them, Indonesia therefore fails to meet the legal standard under Article 11 of the
DSU.111
5.28. We recall that, as the Appellate B ody has cautioned on several occasions, a claim that a
panel has failed to conduct an "objective assessment of the matter before it" under Article 11 of
the DSU is "a very serious allegation". 112 Accordingly, it is incumbent on a participant raising a
claim under Article 11 to identify specific errors regarding the objectivity of the panel's assessment
and "to explain why the alleged error meets the standard of review under that provision". 113
Importantly, a claim under Article 11 must "stand by itself and be s ubstantiated with specific
arguments, rather than merely being put forth as a subsidiary argument or claim in support of a
claim of a panel's failure to construe or apply correctly a particular provision of a covered
agreement."114
5.29. We note that , in support o f its claim under Article 11 of the DSU , Indonesia essentially
reiterates some of the arguments it presented in support of its substantive claim on appeal
regarding the Panel's decision to commence its examination of the co -complainants' claims with
Article XI:1 of the GATT 1994. Like for its substantive claim, Indonesia argues that Article 4.2 of
the Agreement on Agriculture deals more specifically with quantitative import restrictions on
agricultural products than Article XI:1 of the GATT 1994. 115 Similarly, both under Article 11 of the
DSU and in support of its substantive claim, Indonesia argues that the Panel's reliance on
Articles 4.2 and 21.1 of the Agreement on Agriculture to determine that Article XI:2(c)(ii) of the
GATT 1994 was rendered "inoperative " demonstrates that Article 4.2 deals more specifically with
the measures at issue. 116 We fail to see arguments made by Indonesia in support of its claim
under Article 11 of the DSU that are specific, different, or separate from the ones it has submitted
in support of its substantive claim of error regarding the Panel's decision to commence its
examination with Article XI:1 of the GATT 1994 instead of Article 4.2 of the Agreement on
Agriculture. Indonesia's claim under Article 11 of the DSU thus falls short o f "stand[ing] by itself
and be[ing] substantiated with specific arguments".117
5.30. Consequently, we consider that Indonesia has not substantiated its claim under Article 11 of
the DSU that the Panel failed to make an objective assessment of the applicability of Article 4.2 of
the Agreement on Agriculture. 118 We therefore find that Indonesia has not demonstrated that the
Panel acted inconsistently with Article 11 of the DSU in this respect.

111 New Zealand's appellee's submission, paras. 10 and 101; United States' appellee's submission,
paras. 71, 78, and 81.
112 Appellate Body Report, Peru – Agricultural Products, para. 5.66. See also Appellate Body Reports,
113 Appellate Body Reports, China – Rare Earths, para. 5.178; EC – Fasteners (China), para. 442.
(emphasis original) See also Appellate Body Reports, US – Steel Safeguards, para. 498;
Chile – Price Band System (Article 21.5 – Argentina), para. 238.
114 Appellate Body Reports, Peru – Agricultural Products, para. 5.66; US – Anti-Dumping and
Countervailing Duties (China), para. 337. See also Appellate Body Reports, US – Steel Safeguards, para. 498;
China – Rare Earths, para. 5.173.
115 Indonesia's appellant's submission, paras. 63 and 104.
116 Indonesia's appellant's submission, paras. 58 and 104.
117 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), para. 337 (referring to
118 As briefly set out above, Indonesia argued at the oral hearing that the Panel impaired Indonesia's
due process rights by deciding the case based on the wrong provision. According to Indonesia, this
distinguishes its claim under Article 11 of the DSU from its substantive claims on appeal. (Indonesia's opening
statement at the oral hearing; response to questioning at the oral hearing) We note, however, that this due
process argument was raised in support of Indonesia's challenge under Article 11 of the DSU for the first time
during the oral hearing, whereas Indonesia raised the same due process concerns in support of its substantive
claim under Article 4.2 of the Agreement on Agriculture in its appellant's submission. (Indonesia's appellant's
submission, para. 93) Moreover, this argument rests on the assumption that the Panel erred in not finding that
Article 4.2 of the Agreement on Agriculture applies to the exclusion of Article XI:1 of the GATT 1994. Above,
we concluded that Article 4.2 of the Agreement on Agriculture does not apply to the exclusion of Article XI:1 of
the GATT 1994 in this dispute. Therefore, Indonesia's allegation at the oral hearing that the Panel impaired its
due process rights by applying Article XI:1 instead of Article 4.2 does not alter our conclusion that Indonesia
has not substantiated its claim under Article 11 of the DSU.
WT/DS477/AB/R • WT/DS478/AB/R

Conclusions 5.1.4
5.31. In light of the above, we consider that Article 4.2 of the Agree ment on Agriculture does not
apply "to the exclusion of"119 Article XI:1 of the GATT 1994 in relation to the claims challenging the
18 measures at issue as quantitative restrictions. Both provisions contain the same substantive
obligations in relation to the se claims 120 and, thus, in these circumstances, they apply
cumulatively. Moreover, there is no mandatory sequence of analysis between Article 4.2 of the
Agreement on Agriculture and Article XI:1 of the GATT 1994 in this dispute , and the decision as to
whether to commence the analysis with the claims under Article XI:1 or those under Article 4.2
was within the Panel's margin of discretion. We also consider that Indonesia has not substantiated
its claim under Article 11 of the DSU that the Panel failed to make an objective assessment of the
applicability of Article 4.2 of the Agreement on Agriculture.
5.32. We therefore reject Indonesia's claim that the Panel erred in assessing the claims regarding
the measures at issue under Article XI:1 of the GATT 1994, rather than Article 4.2 of the
Agreement on Agriculture. We also find that Indonesia has not demonstrated that the Panel acted
inconsistently with Article 11 of the DSU by failing to make an objective assessment of the
applicability of Article 4.2 of the Agreement on Agriculture. Consequently, we uphold the Panel's
decision, in paragraph 7.33 of the Panel Report, to commence its examination with Article XI:1 of
the GATT 1994.
5.2 Whether the Panel erred in determining that Indonesia bears the burden of proof
under the second part of footnote 1 to Article 4.2 of the Agreement on Agriculture
5.33. We now turn to Indonesia's claim of error regarding the burden of proof under the
second part of footnote 1 to Article 4.2 of the Agreement on Agriculture. Indonesia submits that
the Panel erred in determining that Indonesia bears the burden of proof under the second part of
footnote 1 to Article 4.2.121 Consequently, Indonesia requests us to reverse the Panel's conclusions
and legal interpretations contained in paragraphs 7.34 and 7.833 of the Panel Report. Indonesia
also requests us to reverse the Panel's finding in paragraph 8.2 of the Panel Report.122
5.34. Before the Panel, Indonesia suggested that , because measures maintained under Article XX
of the GATT 1994 fall outside the scope of Article 4.2 of the Agreement on Agriculture by virtue of
the second part of footnote 1 to that provision, it is not possible for a complainant to present a
prima facie case of violation under Article 4.2 without offering any evidence or argumentation that
the challenged measure is not justified under Article XX of the GATT 1994. 123 In paragraph 7.34 of
its Report, the Panel rejected Indonesia's argument by stating:
We not e that, as indicated above, Indonesia argued that, because the co -
complainants have failed to provide evidence that the challenged measures are not
justified under Article XX, the "Panel cannot, as a matter of law, rule in the
complainants' favor under Art icle 4.2". We understand Indonesia to be asking the
Panel to invert the burden of proof under Article XX of the GATT 1994. As pointed out
by New Zealand, it is well established in WTO jurisprudence following the
Appellate Body decision in US – Wool Shirts and Blouses that the burden of identifying
and establishing affirmative defences under Article XX rests on the party asserting the
defence. Thus it is for Indonesia, and not the co -complainants, to establish the
defence under Article XX of the GATT 1994.124

5.35. We note that the Panel did not expressly refer to Article 4.2 of the Agreement on Agriculture
when it stated that "it is for Indonesia, and not the co -complainants, to establish the defence
under Article XX of the GATT 1994."125 However, as the Panel's statement was made in the context
of addressing Indonesia's argument that the co -complainants must establish that the challenged

119 Indonesia's appellant's submission, para. 53. (emphasis original)
120 See also section 5.2 below.
121 Indonesia's appellant's submission, para. 4.
122 Indonesia's appellant's submission, para. 95.
123 Indonesia's second written submission to the Panel, para. 38 (referring to New Zealand's response to
Panel question No. 72, para. 127; United States' response to Panel question No. 72, para. 166).
124 Panel Report, para. 7.34 (referring to Appellate Body Report, US – Wool Shirts and Blouses, p. 16,
DSR 1997:I, p. 337). (fns omitted)
125 Panel Report, para. 7.34.
WT/DS477/AB/R • WT/DS478/AB/R

measures are not justified under Article XX in order to present a prima facie case of violation
under Article 4.2, we understand th e above statement as containing an implicit reference to the
burden of proof under Article XX of the GATT 1994 in the context of Article 4.2 of the Agreement
on Agriculture.
5.2.1 Whether findings in respect of the burden of proof under the second part of
footnote 1 to Article 4.2 of the Agreement on Agriculture are necessary
5.36. Before turning to the substance of Indonesia's claim on appeal, we note that New Zealand
and the United States submit that, if we were to uphold the Panel's findings under Article XI:1 of
the GATT 1994, we need not make findings with respect to Article 4.2 of the Agreement on
Agriculture, including in relation to the burden of proof, as such findings would not be necessary to
resolve the present dispute. 126 The United States contends that , if we were to affirm the Panel's
findings under Article XI:1, any findings with respect to the burden of proof under Article 4.2
would not change Indonesia's obligation to implement the Panel's findings and recommendations
with respect to Article XI:1.127
5.37. We believe that we have to consider Indonesia's claim on appeal regarding the allocation of
the burden of proof because this issue is intertwined with the issue of the order of analysis of the
claims under Article XI:1 of the GATT 1994 and Article 4.2 of the Agr eement on Agriculture , and
their dispositions. If there is a difference between Article XI:1 and Article 4.2 in terms of the
burden of proof with respect to Article XX of the GATT 1994, we would then be required to assess
further whether such a difference amounts to a "conflict" within the meaning of Article 21.1 of the
Agreement on Agriculture128 in order to determine whether the Panel erred in applying Article XI:1,
and not Article 4.2, to the challenged measures. In addition, if there is such a difference between
Article XI:1 and Article 4.2, we would also be required to assess whether starting the analysis with
Article XI:1 , rather than with Article 4.2 , resulted in a "failure to structure the analysis in the
proper logical sequence [that had] repercussion s for the substance of the analysis itself". 129 In
view of these considerations, we proceed to address the substance of Indonesia's claim.130
Whether the Panel erred in allocating to Indonesia the burden of proof under the 5.2.2
second part of footnote 1 to Article 4.2 of the Agreement on Agriculture
5.38. Indonesia claims that the Panel erred in allocating to Indonesia the burden of proof under
the second part of footnote 1 to Article 4.2 of the Agreement on Agriculture. Indonesia observes
that, while the first part of f ootnote 1 to Article 4.2 describes "the type of measures that are
subject to the obligation to be converted into ordinary customs duties"131, the second part of
footnote 1 provides that measures maintained under " certain exceptions such as 'general, non-
agriculture-specific provisions of GATT 1994 '", including Article XX of the GATT 1994, are not
inconsistent with Article 4.2. 132 Accordingly, in Indonesia's view, a party presenting a claim under
Article 4.2 is required to establish that the measure " is of the kind that falls within the scope of
this provision" by addressing both the first and second parts of footnote 1 to Article 4.2.133
5.39. New Zealand and the United States respond that the Panel correctly found that the burden
of proof under Article XX of th e GATT 1994 falls on Indonesia, including in the context of
footnote 1 to Article 4.2 of the Agreement on Agriculture. 134 They argue that it is well established
in WTO jurisprudence that Article XX of the GATT 1994 is in the nature of an affirmative defence,

126 New Zealand's appellee's submission, para. 90 (referring to Appellate Body Report, US – Wool Shirts
and Blouses, p. 19, DSR 1997:I, pp. 339-340); United States' appellee's submission, paras. 112 and 114-120.
127 United States' appellee's submission, paras. 119.
128 We have observed in section 5.1 above that Article 21.1 of the Agreement on Agriculture excludes
the application of the provisions of the other Multilateral Trade Agreements in Annex 1A to the
WTO Agreement, including the GATT 1994, to the extent that those provisions are in conflict with the
provisions of the Agreement on Agriculture.
129 Appellate Body Report, Canada – Wheat Exports and Grain Imports, para. 109.
130 We note that Indonesia's claim regarding the burden of proof is consistent with Articles 17.6 and
17.12 of the DSU, which provide that the Appellate Body is to consider the "issues of law covered in the panel
report and legal interpretations developed by the panel" that are raised on appeal.
131 Indonesia's appellant's submission, para. 77. (emphasis original)
132 Indonesia's appellant's submission, para. 78. (emphasis original)
133 Indonesia's appellant's submission, para. 84. (emphasis original) See also para. 82.
134 New Zealand's appellee's submission, para. 65; United States' appellee's submission, para. 113.
WT/DS477/AB/R • WT/DS478/AB/R

with respect to which the respondent bears the burden of proof 135, and that there is no basis for
Indonesia to argue that the nature of Article XX as an affirmative defence is changed in the
context of Article 4.2 of the Agreement on Agriculture.136
5.40. We begin by recalling the text of Article 4.2, including footnote 1, of the Agreement on
Agriculture. Article 4.2 reads:
Article 4
Market Access
…
2. Members shall not maintain, resort to, or revert to any measures of the kind
which have been required to be converted into ordinary customs duties 1, except as
otherwise provided for in Article 5 and Annex 5.
Article 4.2 contains an "illustrative list" 137 of the categories of measures prohibited under
Article 4.2, which refers to, inter alia , "quantitative import restrictions". The second part of
footnote 1 provides that "measures" within the meaning of Article 4.2 do not include measures
maintained under "balance-of-payments provisions or under other general, non-agriculture-specific
provisions of GATT 1994 or of the other Multilateral Trade Agreements in Annex 1A to the
WTO Agreement". Article XX of the GATT 1994 is one of the "other general, non -agriculture-
specific provisions of GATT 1994". As such, a Member is prohibited under Article 4.2 from
maintaining, resorting to, or reverting to a measure that falls within any of the categories of
measures listed in the first part of footnote 1, such as "quantitative import restrictions", provided
such measure is not maintained under any of the "provisions" mentioned in the second part of
footnote 1, such as Article XX of the GATT 1994.138
5.42. With respect to the burden of proo f under Article XX of the GATT 1994 referred to in the
second part of footnote 1 to Article 4.2 of the Agreement on Agriculture, we recall the general
principle that "the burden of proof rests upon the party, whether complaining or defending, who
asserts the affirmative of a particular claim or defence ."139 We also note that it has been well
established through WTO jurisprudence that Article XX of the GATT 1994 is an affirmative defence,
with respect to which the respondent bears the burden of establishing a prima facie case.140 In this
context, the Appellate Body has stated that Article XX is one of the "exceptions" from obligations
under certain other provisions of the GATT 1994, rather than a positive rule establishing
obligations in itself.141 Accordingly, the question before us is whether the allocation of the burden
of proof as it applies under Article XX of the GATT 1994 is changed by virtue of the incorporation of
this provision into Article 4.2 of the Agreement on Agriculture through the reference contain ed in
the second part of footnote 1 to that provision.

135 New Zealand's appellee's submission, para. 73 (referring to Appellate Body Report,
US – Wool Shirts and Blouses, p. 16, DSR 1997:I, p. 337); United States' appellee's submission, para. 124.
136 New Zealand's appellee's submission, para. 78; United States' appellee's submission, para. 126.
137 Appellate Body Report, Chile – Price Band System, para. 187. See also paras. 209 and 219.
138 See Appellate Body Report, Chile – Price Band System, para. 221 and fn 196 thereto.
139 Appellate Body Report, US – Wool Shirts and Blouses, p. 14, DSR 1997:I, p. 335.
140 Appellate Body Report, US – Wool Shirts and Blouses, p. 16, DSR 1997:I, p. 337.
141 Appellate Body Report, US – Wool Shirts and Blouses, p. 16, DSR 1997:I, p. 337.
WT/DS477/AB/R • WT/DS478/AB/R

5.43. We observe first that Article 4.2 of the Agreement on Agriculture and footnote 1 thereto do
not contain any express indication that Article XX of the GATT 1994 is no longer an affirmative
defence when it is applied through the reference in the second part of footnote 1. Nor does
Article 4.2 or footnote 1 expressly provide that the complainant bringing a claim under this
provision must establish that the challenged measure is not maintained under Article XX of the
GATT 1994 or under any of the other "provisions" referred to in the second part of footnote 1. In
particular, the phrase "but not" in the second part of footnote 1, read in conjunction with the word
"include" in the first part of footnote 1, mak es clear that "measures" prohibited under Article 4.2
do not include measures maintained under one of the "provisions" mentioned in the second part of
footnote 1. This phrase, however, is neutral as to the allocation of the burden of proof under these
"provisions", including under Article XX.
5.44. Indonesia argues that , because measures maintained under "general,
non-agriculture-specific provisions", such as Article XX of the GATT 1994, are not subject to the
obligation under Article 4.2 of the Agreement on Agri culture, a party presenting a claim under
Article 4.2 is required to establish that the measure " is of the kind that falls within the scope of
this provision"142 by demonstrating "both elements" in footnote 1 143, namely, the requirements of
both the first and second parts of footnote 1. We acknowledge that "measures" within the meaning
of Article 4.2 do not include measures maintained under one of the "provisions" mentioned in the
second part of footnote 1. The second part of footnote 1 may thus be seen as relating to the scope
of Article 4.2. We do not , however, agree that such characterization necessarily gives decisive
guidance as to the allocation of the burden of proof under the second part of footnote 1. In fact,
the Appellate Body has cautioned that the characterization of a particular provision as a
"derogation limiting the scope", such as Articles III:8(a) and XI:2(a) of the GATT 1994, "does not
pre-determine the question as to which party bears the burden of proof with regard to the
requirements stipulated in the provision".144
5.45. We also note Indonesia's argument that Article XX of the GATT 1994 cannot be an
"exception" in the context of Article 4.2 of the Agreement on Agriculture, because the drafters
used "special language" such as "exceptions" or "exempt ions" when they intended to import
exceptions from the GATT 1994 into the other covered agreements. 145 The mere presence or
absence of words such as "exceptions" or "exemptions", however, is not dispositive of the
allocation of the burden of proof under a pa rticular provision. The reverse of what Indonesia
asserts could also be true because , if the drafters of Article 4.2 had intended to modify the nature
of Article XX of the GATT 1994 as an affirmative defence, they could have used explicit language
to that effect, instead of using phrases such as "but not" and "general, non -agriculture-specific
provisions" in the second part of footnote 1.146
5.46. In light of the above, we fail to see a textual basis for the proposition that the burden of
proof under Article XX of the GATT 1994 is shifted to the complainant by virtue of the incorporation
of this provision into the second part of footnote 1 to Article 4.2 of the Agreement on Agriculture.
Rather, given that footnote 1 to Article 4.2 incorporates Article XX by referen ce without modifying
the nature of this provision as an affirmative defence, it would follow that the burden of proof
under Article XX remains with the respondent in the context of Article 4.2. This is consistent with
the general principle that "the burden of proof rests upon the party, whether complaining or
defending, who asserts the affirmative of a particular claim or defence ."147 While the complainant
challenging a measure under Article 4.2 is required to demonstrate that the measure falls within
the categories of measures prohibited under Article 4.2, it is the respondent who benefits from a
showing that the measure additionally satisfies the requirements of Article XX and therefore is not
prohibited under Article 4.2.

142 Indonesia's appellant's submission, para. 84. (emphasis original)
143 Indonesia's appellant's submission, para. 82. (emphasis omitted)
144 Appellate Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program, para. 5.56.
The Appellate Body further recalled that, "in China – Raw Materials, the Appellate Body distinguished between
'exceptions' (such as the general exception of Article XX) and limitations of the scope of an obligation (such as
Article XI:2(a))." (Ibid., fn 491 thereto (referring to Appellate Body Reports, China – Raw Materials,
para. 334))
145 Indonesia's appellant's submission, para. 86 (referring to Article 3 of the TRIMs Agreement and
Article 24.7 of the Agreement on Trade Facilitation).
146 Emphasis added.
147 Appellate Body Report, US – Wool Shirts and Blouses, p. 14, DSR 1997:I, p. 335. (emphasis added)
WT/DS477/AB/R • WT/DS478/AB/R

5.47. We recall that , in US – Clove Cigarettes, the Appellate Body found 148 that "the burden of
proof in respect of a particular provision of the covered agreements cannot be understood in
isolation from the overarching logic of that provision, and the function which it is designed to
serve."149 Indonesia has not explained how and to what extent the reference in the second part of
footnote 1 to Article 4.2 of the Agreement on Agriculture modifies the overarching logic and
function of Article XX of the GATT 1994. We recall in this regard that the Appellate Body has stated
that Article XX "contains provisions designed to permit important state interests … to find
expression".150 Paragraphs (a) to (j) of Article XX "comprise measures that are recognized as
exceptions to substantive obligations established in the GATT 1994, because the domestic policies
embodied in such measures have been recognized as important and legitimate in character". 151
The chapeau of Article XX, in turn, "embodies the recognition on the part of WTO Members of the
need to maintain a bal ance of rights and obligations between the right of a Member to invoke one
or another of the exceptions of Article XX, specified in paragraphs (a) to (j), on the one hand, and
the substantive rights of the other Members under the GATT 1994, on the other ha nd".152 In our
view, the overarching logic and function of Article XX of striking a balance between Members'
obligations and rights remain the same in the context of Article 4.2 of the Agreement on
Agriculture, as it recognizes Members' rights to pursue cert ain legitimate policy objectives as
juxtaposed to their obligation to liberalize trade by converting certain market access barriers into
ordinary customs duties.153
5.48. Finally, we note that Indonesia suggests that the allocation of the burden of proof under the
second part of footnote 1 should be informed by certain other provisions of the covered
agreements, which, according to Indonesia, "convert exceptions under Article XX of the GATT 1994
into positive obligations, thereby shifting the burden of proof to the complainant".154 According to
Indonesia, Articles 2.2 and 2.4 of the Agreement on Technical Barriers to Trade (TBT Agreement)
are among such provisions.155
5.49. We disagree that Articles 2.2 and 2.4 of the TBT Agreement are relevant to the
interpretation of the se cond part of footnote 1 to Article 4.2 of the Agreement on Agriculture in
terms of the burden of proof under Article XX of the GATT 1994 referred to therein . As an initial
matter, we do not find a textual basis to characterize Article 2.2 156 or Article 2.4 157 of

148 In the context of examining the allocation of the burden of proof under Article 2.12 of the Agreement
on Technical Barriers to Trade (TBT Agreement).
149 Appellate Body Report, US – Clove Cigarettes, para. 286. (emphasis original)
150 Appellate Body Report, US – Gasoline, p. 30, DSR 1996:I, p. 28.
151 Appellate Body Report, US – Shrimp, para. 121. (emphasis original)
152 Appellate Body Report, US – Shrimp, para. 156.
153 In Chile – Price Band System, the Appellate Body noted that the overall objectives of the Agreement
on Agriculture as stated in the preamble of that Agreement include "the establishment of strengthened and
more operationally effective GATT rules and disciplines", and implementing "specific binding commitments" in
the area of market access. (Appellate Body Report, Chile – Price Band System, para. 196 (quoting Preamble to
the Agreement on Agriculture)) The Appellate Body further stated that "Article 4 of the Agreement on
Agriculture is appropriately viewed as the legal vehicle for requiring the conversion into ordinary customs
duties of certain market access barriers affecting imports of agricultural products." (Ibid., para. 201 (italics
omitted)) Allocating the burden of proof under the second part of footnote 1 to the complainant would be at
odds with the above objectives because it would weaken, rather than strengthen, the prohibition of
quantitative import restrictions under Article 4.2, as compared to the prohibition of quantitative restrictions
under Article XI:1 of the GATT 1994.
154 Indonesia's appellant's submission, para. 88.
155 Indonesia's appellant's submission, paras. 88-89. Indonesia also refers to Article 5.6 of the
Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) and Article 11.6(b) of
the Agreement on Trade Facilitation, both of which contain language similar to that of Article 2.2 of the
TBT Agreement.
156 Article 2.2 of the TBT Agreement provides:
Members shall ensure that technical regulations are not prepared, adopted or applied with a view
to or with the effect of creating unnecessary obstacles to international trade. For this purpose,
technical regulations shall not be more trade-restrictive than necessary to fulfil a legitimate
objective, taking account of the risks non-fulfilment would create. Such legitimate objectives are,
inter alia: national security requirements; the prevention of deceptive practices; protection of
human health or safety, animal or plant life or health, or the environment. In assessing such
risks, relevant elements of consideration are, inter alia: available scientific and technical
information, related processing technology or intended end-uses of products.
157 Article 2.4 of the TBT Agreement provides:
Where technical regulations are required and relevant international standards exist or their
completion is imminent, Members shall use them, or the relevant parts of them, as a basis for
WT/DS477/AB/R • WT/DS478/AB/R

the TBT Agreement as "convert[ing] exceptions under Article XX of the GATT 1994 into positive
obligations"158, as neither of these provisions contains a specific reference to Article XX. In
addition, although Articles 2.2 and 2.4 both refer to certain "legitimate objectives" 159 that are
similar to those mentioned in the paragraphs of Article XX, the mere reference to such "legitimate
objectives" in Article 2.2 or Article 2.4 does not provide relevant context for interpreting Article 4.2
of the Agreement on Agriculture in terms of the burden of proof under Article XX referred to in the
second part of footnote 1 thereto. Specifically, with re spect to Article 2.2 of the TBT Agreement,
the Appellate Body has found that "Article 2.2 does not prohibit measures t hat have any
trade-restrictive effect", but only "restrictions on international trade that exceed what is necessary
to achieve the degree of contribution that a technical regulation makes to the achievement of a
legitimate objective".160 As such, Article 2.2 is a positive rule establishing an obligation in itself.
This is quite different from the function of the second part of footnote 1 to Article 4.2 of the
Agreement on Agriculture, which is to exempt certain measures from the prohibition of market
access barriers set out in the first part of footnote 1.
5.50. Further, with respect to Article 2.4 of the TBT Agreement, we recall that , in EC – Sardines,
the Appellate Body pointed to the "conceptual similarities" between, on the one hand, Articles 3.1
and 3.3 of the Agreement on the Application of Sanitary and Phytosanitary Measures
(SPS Agreement) and, on the other hand, the first and second parts of Article 2.4 of the
TBT Agreement.161 As the Appellate Body had found in EC – Hormones, the right of a Member to
establish its own level of sanitary protection under Article 3.3 of the SPS Agreement is an
"autonomous right", and "a Member may decide to set for itself a level of protection different from
that implicit in the international standard, and to implement or embody that level of protection in a
measure not 'based on' the international standard." 162 Accordingly, and given the "conceptual
similarities" between Article 3.3 of the SPS Agreement and the second part of Article 2.4 of the
TBT Agreement, the second part of Art icle 2.4 recognizes an "autonomous right" of a Member to
set its own level of protection, rather than setting forth an exception or exemption from a (non -
existent) general obligation to use relevant international standards. Thus, the second part of
Article 2.4 of the TBT Agreement is dissimilar to the second part of footnote 1 to Article 4.2 of the
Agreement on Agriculture.
5.51. In sum, Article 4.2 of the Agreement on Agriculture and footnote 1 thereto, read in their
relevant context, do not suggest that the nature of Article XX of the GATT 1994 as an affirmative
defence is modified by virtue of the incorporation of this provision into Article 4.2 by the reference
contained in the second part of footnote 1. We therefore reject Indonesia's claim that the Panel
erred in allocating to Indonesia the burden of proof under Article XX of the GATT 1994 as
referenced in the second part of footnote 1 to Article 4.2 of the Agreement on Agriculture.
5.2.3 Whether the Panel failed to mak e an objective assessment of which party bears
the burden of proof under the second part of footnote 1 to Article 4.2 of the Agreement
on Agriculture
5.52. Having rejected Indonesia's claim under Article 4.2 of the Agreement on Agriculture, we
note that Indonesi a brings a separate but related claim that the Panel acted inconsistently with
Article 11 of the DSU because it failed to make "an objective assessment of which party bears the
burden of proof with respect to the second element of footnote 1 to Article 4.2 of the Agreement
on Agriculture."163 Indonesia argued at the oral hearing that, in allocating to Indonesia the burden
of proof under Article XX of the GATT 1994 referred to in the second part of footnote 1 to

their technical regulations except when such international standards or relevant parts would be
an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued, for
instance because of fundamental climatic or geographical factors or fundamental technological
problems.
158 Indonesia's appellant's submission, para. 88.
159 The third sentence of Article 2.2 of the TBT Agreements makes clear that "legitimate objectives"
include: "national security requirements; the prevention of deceptive practices; protection of human health or
safety, animal or plant life or health, or the environment".
160 Appellate Body Report, US – Tuna II (Mexico), para. 319. (emphasis added) See also Appellate Body
161 Appellate Body Report, EC – Sardines, para. 275.
162 Appellate Body Report, EC – Hormones, paras. 104 and 172.
163 Indonesia's appellant's submission, paras. 5 and 105.
WT/DS477/AB/R • WT/DS478/AB/R

Article 4.2, the Panel impaired Indonesia's due process rights.164 New Zealand argues in response
that Indonesia fails to substantiate independently this claim under Article 11 of the DSU , as it is
solely based on Indonesia's challenge to the legal standards applied by the Panel. 165 According to
New Zealand, Indonesia's claim must therefore fail. 166 We note that, in its appellee's submission,
the United States does not separately address this claim by Indonesia. However, at the oral
hearing, the United States reiterated the argument it put forward with respect to Indonesia's
first claim under Article 11 of the DSU addressed in section 5.1.3 above, namely, that Indonesia
fails to put forward under Article 11 of the DSU any arguments that are separate from or
additional to the arguments it puts forward with respect to its substantive legal appeals.167
5.53. We recall that the Appellate Body has cautioned on several occasions that a claim that a
panel has failed to conduct an "ob jective assessment of the matter before it" under Article 11 of
the DSU is "a very serious allegation". 168 Accordingly, it is incumbent on a participant raising a
claim under Article 11 to identify specific errors regarding the objectivity of the panel's assessment
and "to explain why the alleged error meets the standard of review under that provision". 169
Importantly, a claim under Article 11 must "stand by itself and be substantiated with specific
arguments, rather than merely being put forth as a subsidiary argument or claim in support of a
claim of a panel's failure to construe or apply correctly a particular provision of a covered
agreement".170
5.54. We note that, in its appellant's submission, Indonesia has not put forward any specific
arguments in support of its claim that the Panel acted inconsistently with Article 11 of the DSU
because it failed to make an objective assessment of which party bears the burden of proof under
the second part of footnote 1 to Article 4.2 of the Agreement on Agriculture . Indonesia s tates,
without more, that "[t]he Panel … did not conduct an objective assessment of which party bears
the burden of proof with respect to the second element of footnote 1 to Article 4.2". 171 We do not
consider that this mere statement is sufficient to show t hat the Panel failed to comply with its
duties under Article 11 of the DSU.
5.55. Consequently, we consider that Indonesia has not substantiated its claim under Article 11 of
the DSU that the Panel failed to conduct an objective assessment of which party bears the burden
of proof under the second part of footnote 1 to Article 4.2 of the Agreement on Agriculture. 172 We
therefore find that Indonesia has not demonstrated that the Panel acted inconsistently with
Article 11 of the DSU in this respect.

164 Indonesia's opening statement at the oral hearing; response to questioning at the oral hearing.
165 New Zealand's appellee's submission, para. 101.
166 New Zealand's appellee's submission, paras. 101 and 110.
167 United States' response to questioning at the oral hearing; appellee's submission, para. 83.
168 Appellate Body Reports, Peru – Agricultural Products, para. 5.66; China – Rare Earths, para. 5.227;
EC – Poultry, para. 133.
169 Appellate Body Reports, China – Rare Earths, para. 5.178; EC – Fasteners (China), para. 442.
(emphasis original)
170 Appellate Body Reports, Peru – Agricultural Products, para. 5.66; US – Anti-Dumping and
Countervailing Duties (China), para. 337. See also Appellate Body Reports, US – Steel Safeguards, para. 498;
China – Rare Earths, para. 5.173.
171 Indonesia's appellant's submission, paras. 5 and 105-106.
172 As briefly set out above, Indonesia argued at the oral hearing that, in allocating to Indonesia the
burden of proof under Article XX of the GATT 1994 referred to in the second part of footnote 1 to Article 4.2 of
the Agreement on Agriculture, the Panel impaired Indonesia's due process rights. According to Indonesia, this
distinguishes its claim under Article 11 of the DSU from its substantive claims on appeal. (Indonesia's opening
statement at the oral hearing; response to questioning at the oral hearing) We note, however, that this due
process argument was raised in support of Indonesia's challenge under Article 11 of the DSU for the first time
during the oral hearing, whereas Indonesia raised the same due process concerns in support of its substantive
claim under Article 4.2 in its appellant's submission. (Indonesia's appellant's submission, para. 93) Moreover,
this argument rests on the assumption that the Panel erred in determining that Indonesia bears the burden of
proof under the second part of footnote 1 to Article 4.2. Above, we have rejected Indonesia's substantive claim
that the Panel erred in allocating to Indonesia the burden of proof under Article XX of the GATT 1994 referred
to in the second part of footnote 1 to Article 4.2 of the Agreement on Agriculture. Therefore, Indonesia's
allegation at the oral hearing that the Panel impaired its due process rights by incorrectly allocating the burden
of proof to Indonesia under the second part of footnote 1 to Article 4.2 does not alter our conclusion that
Indonesia has not substantiated its claim under Article 11 of the DSU.
WT/DS477/AB/R • WT/DS478/AB/R

5.2.4 Conclusions
5.56. For the reasons stated above , Article 4.2 of the Agreement on Agriculture and footnote 1
thereto, read in their relevant context, do not suggest that the nature of Article XX of the
GATT 1994 as an affirmative defence is modified by virtue of its incorporation into the second part
of footnote 1 to Article 4.2 . We thus find that the burden of proof under Article XX remains with
the respondent even when Article XX is applied through the reference in the second part of
footnote 1 to Article 4.2. In addition, we consider that Indonesia has not substantiated its claim
under Article 11 of the DSU that the Panel failed to conduct an objective assessment of which
party bears the burden of proof under the second part of footnote 1 to Article 4.2 of the
Agreement on Agriculture.
5.57. Accordingly, we uphold the Panel's finding, in paragraph 7.34 of the Panel Report, that the
burden of proof under Article XX of the GATT 1994 referred to in the second part of footnote 1 to
Article 4.2 of the Agreement on Agriculture rests on Indonesia. With respect to Indonesia's request
to reverse the Panel's finding in paragraphs 7.833 and 8.2 of the Panel Report173, which pertains to
the Panel's exercise of judicial economy with respect to Article 4.2 of the Agreement on
Agriculture, Indonesia has not explained how the alleged error by the Panel in connection with the
allocation of the burden of proof under the second part of footnote 1 to Article 4.2 leads to the
conclusion that the Panel erred in exercising judicial economy. In any event, as we have found
that the burden of p roof under Article XX of the GATT 1994 remains with the respondent also in
the context of Article 4.2 of the Agreement on Agriculture and footnote 1 thereto, we see no
reason to disturb the Panel's decision to exercise judicial economy with respect to the
co-complainants' claims under Article 4.2 of the Agreement on Agriculture. Thus, we reject
Indonesia's request to reverse the Panel's finding in paragraphs 7.833 and 8.2 of the Panel Report.
5.3 Indonesia's alternative claim that the Panel erred in finding tha t Article XI:2(c) of
the GATT 1994 has been rendered "inoperative" by Article 4.2 of the Agreement on
Agriculture
5.58. We now turn to Indonesia's alternative claim of error that, if we were to find that the Panel
did not err by addressing the claims under Artic le XI:1 of the GATT 1994 , rather than the claims
under Article 4.2 of the Agreement on Agriculture, then the Panel erred in finding that
Article XI:2(c) of the GATT 1994 has been rendered "inoperative" by Article 4.2 of the Agreement
on Agriculture.174
5.59. Before the Panel, Indonesia argued that , even if the Panel were to find that Measure 4
(harvest period requirement), Measure 7 ( reference prices for chillies and fresh shallots for
consumption), and Measure 16 ( beef reference price) are inconsistent with Articl e XI:1 of the
GATT 1994, they are nonetheless "justified" under Article XI:2(c)(ii) of the GATT 1994 because
they are necessary to remove a temporary surplus of certain horticultural products, animals and
animal products in Indonesia's domestic market. 175 New Zealand and the United States responded
that Article XI:2(c)(ii) is no longer available with respect to agricultural products following the
entry into force of the Agreement on Agriculture, because Article XI:2(c) does not qualify as an
exception to the prohibition under Article 4.2 of the Agreement on Agriculture of "measures of the
kind which have been required to be converted into ordinary customs duties".176
5.60. In paragraph 7.60 of its Report, the Panel agreed with New Zealand and the United States,
and fo und that Indonesia cannot rely upon Article XI:2(c)(ii) of the GATT 1994 to exclude
Measure 4, 7, or 16 from the scope of Article XI:1 of the GATT 1994 because Article XI:2(c) has
been rendered "inoperative" with respect to agricultural measures by Article 4.2 of the Agreement
on Agriculture.177

173 Indonesia's appellant's submission, paras. 95 and 107.
174 Indonesia's appellant's submission, para. 109.
175 Indonesia's second written submission to the Panel, para. 252. See also Panel Report, para. 7.58
(referring to Indonesia's second written submission to the Panel, paras. 197, 199, 203, and 252-257).
176 Panel Report, para. 7.59 (referring to New Zealand's response to Panel question No. 114;
United States' response to Panel question No. 114).
177 Panel Report, para. 7.60.
WT/DS477/AB/R • WT/DS478/AB/R

5.61. In its appeal, Indonesia claims that the Panel erred in finding that Article XI:2(c) of the
GATT 1994 has been rendered "inoperative" by Article 4.2 of the Agreement on Agriculture 178, and
requests us to reverse the Panel's conclusion contained in paragraph 7.60 of the Panel Report.179
5.3.1 Whether the Appellate Body should decline to rule on Indonesia's alternative
claim on appeal
5.62. Before turning to the substance of Indonesia's alternative claim on appeal, we note that
the United States submits that we need not reach a finding with respect to this claim. 180 The
United States argues that making findings on the interpretation of Article XI:2(c) of the GATT 1994
is not necessary to resolve the present dispute because Indonesia has not requested completion of
the legal analysis, and, even if it had, Indonesia did not even attempt to establish before the Panel
that its measures are maintained under Article XI:2(c)(ii).181
5.63. We observe that Indonesia's appeal concerning the legal sta tus of Article XI:2(c) of the
GATT 1994 pertains to "issues of law covered in the panel report and legal interpretations
developed by the panel" within the meaning of Article 17.6 of the DSU. We also recall that
Article 17.12 of the DSU provides that the A ppellate Body "shall address each of the issues raised
in accordance with [Article 17.6 of the DSU]". We further note that , while Indonesia has not
requested us to complete the legal analysis under Article XI:2(c)(ii), it requests us to reverse the
specific legal finding by the Panel because this finding "has systemic implications for all
WTO Members", and "[t]he importance of maintaining recourse to Article XI:2(c) is of importance
to the Government of Indonesia." 182 New Zealand also requests us to uphold this Panel finding183,
despite its observation that Indonesia's appeal is "not material to resolving the dispute" as the
essential requirements of Article XI:2(c)(ii) are not satisfied. 184 In additi on, while our ruling on
Article XI:2(c) may not directly change the recommendations and rulings by the DSB with respect
to Article XI:1 of the GATT 1994, the question as to whether Indonesia can in the future invoke
Article XI:2(c)(ii) to justify or exempt any compliance measure taken with respect to
Measures 4, 7, and 16 could affect the manner in which it can comply with the recommendations
and rulings by the DSB.185
5.64. In light of the foregoing, we proceed to examine Indonesia's claim on appeal with respect to
Article XI:2(c) of the GATT 1994.
5.3.2 Whether the Panel erred in f inding that Article XI:2(c) of the GATT 1994 has been
rendered "inoperative" with respect to agricultural measures
5.65. We begin our analysis by recalling the Panel's finding. The Panel stated, in paragraph 7.60
of the Panel Report:
We agree with the co -complainants. As they explained, Article XI:2(c) has been
rendered inoperative with respect to agricultural measures by Article 4.2 of the
Agreement on Agriculture, which prohibits Members from maintaining, resorting to, or
reverting to, "any measures of the kind which have been required to be converted into
ordinary customs duties". Footnote 1 to Article 4.2 provides that the only measures
that fall outside the scope of this provision are the ones "maintained under balance -
of-payment provisions or under other general, non-agriculture-specific provisions or of
the other Multilateral Trade Agreements in Annex 1A to the WTO Agreement".
Article XI:2(c) by its terms concerns agricultural products and therefore does not
qualify under the excl usion for general, non-agriculture-specific provisions. Therefore,
Indonesia cannot rely upon Article XI:2(c)(ii) of the GATT 1994. This is confirmed by
Article 21 of the Agreement on Agriculture, which provides that "[t]he provisions of

178 Indonesia's appellant's submission, para. 109.
179 Indonesia's appellant's submission, para. 127.
180 United States' appellee's submission, para. 155.
181 United States' appellee's submission, paras. 156-158.
182 Indonesia's appellant's submission, para. 108.
183 New Zealand's appellee's submission, para. 129.
184 New Zealand's appellee's submission, para. 128.
185 We recall that, in US – Upland Cotton, the Appellate Body noted that "there may be cases in which it
would be useful for us to review an issue, despite the fact that our ruling would not result in rulings and
recommendations by the DSB". (Appellate Body Report, US – Upland Cotton, para. 510)
WT/DS477/AB/R • WT/DS478/AB/R

GATT 1994", including Article XI:2(c)(ii) of the GATT 1994, "shall apply subject to the
provisions of this Agreement". Accordingly, we conclude that Indonesia cannot rely
upon Article XI:2(c)(ii) of the GATT 1994 to exclude Measures 4, 7 and 16 from the
scope of Article XI:1 of the GATT 1994 because, with respect to agricultural measures,
Article XI:2(c) has been rendered inoperative by Article 4.2 of the Agreement on
Agriculture.186
5.66. Thus, the Panel considered that the types of measures permitted under Article XI:2(c) of
the GATT 1994 are not exempted from the prohibition of market access barriers on agricultural
products under Article 4.2 of the Agreement on Agriculture because "Article XI:2(c) by its terms
concerns agricultural products and therefore does not qualify under th e exclusion for general, non-
agriculture-specific provisions " within the meaning of footnote 1 to Article 4.2. The Panel then
recalled Article 21.1 of the Agreement on Agriculture, and found that Article XI:2(c) has been
rendered "inoperative" with respect to agricultural measures because, by virtue of Article 21.1, the
provisions of the GATT 1994 "shall apply subject to" the provisions of the Agreement on
Agriculture.
5.67. In its appeal, Indonesia claims that the Panel's interpretation that Article XI:2(c) of t he
GATT 1994 has been rendered "inoperative" with respect to agricultural products is in error.
Indonesia argues that the Panel "focused on the wrong element of footnote 1 [to Article 4.2 of the
Agreement on Agriculture ]"187 in reaching its conclusion that A rticle 4.2 does not allow for the
types of derogations set out in Article XI:2(c). According to Indonesia, Article XI:2(c) does not
concern the second part of footnote 1 to Article 4.2 because it is "not an exception captured by the
second element of this footnote 1". 188 Rather, Article XI:2(c) "defines" the term "quantitative
import restrictions" in the first part of footnote 1.189 Indonesia notes in this context that the phrase
"quantitative import restrictions" in the first part of footnote 1 is not defined in the Agreement on
Agriculture.190 Accordingly, this phrase "must … be interpreted by referring, inter alia , to its
relevant context, in particular Article XI (i.e. its paragraphs 1 and 2) of the GATT 1994". 191
Indonesia observes that a measure falling under one of the subparagraphs of Article XI:2 of the
GATT 1994, including Article XI:2(c)(ii), "is not disciplined as a quantitative import restriction
within the meaning of Article XI:1 of the GATT 1994". 192 Therefore, measures satisfy ing the
requirements of Art icle XI:2(c)(ii) should also fall outside "quantitative import restrictions" in the
first part of footnote 1 to Article 4.2 of the Agreement on Agriculture.193
5.68. New Zealand and the United States, on their part, submit that the Panel did not err in
finding that Article XI:2(c) of the GATT 1994 has been rendered "inoperative" by Article 4.2 of the
Agreement on Agriculture.194 They agree with the Panel that measures falling under Article XI:2(c)
are not exempted from the prohibition of market access barriers under Article 4.2 because
Article XI:2(c) applies specifically to agricultural and fisheries products, and thus does not qualify
as a "general, non -agriculture-specific provision []" within the meaning of the second part of
footnote 1 to Article 4.2.195
5.69. As such, the core issue before us is whether the coverage of the prohibition of "quantitative
import restrictions" under Article 4.2 of the Agreement on Agriculture extends to the kinds of
measures referred to in Article XI:2(c) of the GATT 1994.
5.70. Article 4.2 of the A greement on Agriculture prohibits Members from maintaining, resorting
to, or reverting to "any measures of the kind which have been required to be converted into
ordinary customs duties". The first part of footnote 1 to Article 4.2 illustrates the categori es of
measures which have been required to be converted into ordinary customs duties, including
"quantitative import restrictions". The term "quantitative import restrictions" is not defined in the

186 Panel Report, para. 7.60.
187 Indonesia's appellant's submission, para. 120.
188 Indonesia's appellant's submission, para. 120.
189 Indonesia's appellant's submission, para. 120.
190 Indonesia's appellant's submission, para. 123.
191 Indonesia's appellant's submission, para. 123.
192 Indonesia's appellant's submission, para. 122.
193 Indonesia's appellant's submission, para. 122.
194 New Zealand's appellee's submission, para. 114; United States' appellee's submission, paras. 159
and 163.
195 New Zealand's appellee's submission, para. 123; United States' appellee's submission, para. 161.
WT/DS477/AB/R • WT/DS478/AB/R

Agreement on Agriculture. However, a plain reading of the term "quantitative import restrictions"
suggests that it refers to any restriction on the importation of an agricultural product 196 that is
related to its quantity. In addition, because "quantitative import restrictions" in footnote 1 to
Article 4.2 are amon g "measures of the kind which have been required to be converted into
ordinary customs duties "197, the term "quantitative import restrictions" does not include ordinary
customs duties.
5.71. Furthermore, as context for interpreting the prohibition of "quantitative import restrictions"
under Article 4.2 of the Agreement on Agriculture, we note that Article XI of the GATT 1994 sets
out a prohibition of quantitative restrictions. Article XI provides, in relevant part:
Article XI
General Elimination of Quantitative Restrictions
1. No prohibitions or restrictions other than duties, taxes or other charges,
whether made effective through quotas, import or export licences or other measures,
shall be instituted or maintained by any Member on the importation of any product of
the territory of any other Member or on the exportation or sale for export of any
product destined for the territory of any other Member.
2. The provisions of paragraph 1 of this Article shall not extend to the following:
…
(c) Import restrictions on a ny agricultural or fisheries product, imported in
any form, necessary to the enforcement of governmental measures which
operate:
…
(ii) to remove a temporary surplus of the like domestic product, or, if
there is no substantial domestic production of the li ke product, of a
domestic product for which the imported product can be directly
substituted, by making the surplus available to certain groups of
domestic consumers free of charge or at prices below the current
market level; …
5.72. Article XI of the GATT 1994 governs the elimination of quantitative restrictions generally.198
In particular, paragraph 1 "lays down a general obligation to eliminate quantitative restrictions",
and "prohibits Members to institute or maintain prohibitions or restrictions other than dut ies,
taxes, or other charges, on the importation, exportation, or sale for export of any product destined
for another Member". 199 Paragraph 2 of Article XI, in turn, provides that "[t]he provisions of
paragraph 1 of this Article shall not extend to" the type s of measu res stipulated in
subparagraphs 2(a) to 2(c). As relevant in this appeal, Article XI:2(c)(ii) exempts fr om the
obligation under Article XI:1 those import restrictions on agricultural and fisheries products that
are necessary to the enforcement of certain governmental measures which operate to remove a
temporary surplus of certain domestic products. The Appellate Body has stated that the word
"quantitative" in the title of Article XI "informs the interpretation of the words 'restriction' and
'prohibition' in Article XI:1 and XI:2", and accordingly, this provision "covers those prohibitions and
restrictions that have a limiting effect on the quantity or amount of a product being imported or
exported".200

196 Article 2 of the Agreement on Agriculture provides: "This Agreement applies to the products listed in
Annex 1 to this Agreement, hereinafter referred to as agricultural products."
197 Emphasis added.
198 See Appellate Body Reports, China – Raw Materials, para. 320; Panel Reports,
China – Raw Materials, para. 7.912.
199 Appellate Body Reports, Argentina – Import Measures, para. 5.216.
200 Appellate Body Reports, China – Raw Materials, para. 320.
WT/DS477/AB/R • WT/DS478/AB/R

5.73. As noted above, Indonesia alleges that , because the term "quantitative import restrictions"
in the first part of footnote 1 to Article 4.2 of the Agreement on Agriculture is not defined in that
Agreement, this term must be informed by both Article XI:1 and XI:2 of the GATT 1994 201, such
that measures sati sfying the conditions of Article XI:2(c), among others, are excluded from
"quantitative import restrictions" in the first part of footnote 1.202
5.74. As we have already stated in section 5.1 Article 4.2 of the Agreement on Agriculture and
Article XI:1 of the GATT 1994 contain essentially the same prohibitions of quantitative restrictions
as far as the importation of agricultural products is concerned. We therefore agree that the term
"quantitative import restrictions" in the first part of footnote 1 to Article 4.2 should be interpreted
in light of the prohibition of quantitative restrictions under Article XI:1.
5.75. With respect to the relationship between Article 4.2 of the Agreement on Agriculture and
Article XI:2(c) of the GATT 1994 , however, we observe that there is no express language in
Article XI of the GATT 1994 that suggests that the derogations under Article XI:2(c) are relevant
not only to the prohibition under Article XI:1 but also to the prohibition under Article 4.2. On the
contrary, the opening clause of Article XI:2 clearly states that the derogations set out in
subparagraphs 2(a) to 2(c) concern "paragraph 1 of this Article". Article 4.2 and footnote 1 thereto
also do not expressly indicate whether the prohibition of "quantitative import restrictions" under
this provision is subject to the derogations under Article XI:2(c). In particular, the second part of
footnote 1 provides that "measures" prohibited under Article 4.2 do not include measures
maintained under "balance-of-payments provisions or under other general, non-agriculture-specific
provisions of GATT 1994 or of the other Multilateral Trade Agreements in Annex 1A to the
WTO Agreement". Article XI:2(c) is clearly not a "balance -of-payments provision []".203
Article XI:2(c) also does not qualify as a "general, non -agriculture-specific provision[]" because it
is "agriculture -specific" in the sense that its application is limited to " agricultural or fisheries
product" in express terms. 204 As such, there is no basis in the text of Article 4.2 or footnote 1 to
conclude that measures maintained under Article XI:2(c) fall outside the pr ohibition of
"quantitative import restrictions" under this provision. Indeed, if the drafters of the Agreement on
Agriculture had intended to exempt from the prohibition of marke t access barriers under
Article 4.2 measures maintained under Article XI:2(c) of the GATT 1994 , they could have done so
by, for example, adding a reference to Article XI:2(c) in, or omitting the phrase "general, non -
agriculture-specific" from, the second part of footnote 1.
5.76. Furthermore, while Article XI:2 of the GATT 1994 provides t hat "[t]he provisions of
paragraph 1 of this Article shall not extend to" the kinds of "[i]mport restrictions" mentioned in
subparagraph 2(c), these "[i]mport restrictions" are not disqualified from being quantitative
restrictions. As noted above, the Appellate Body has explained that the word "quantitative" in the
title of Article XI of the GATT 1994 informs the interpretation of the words "prohibitions" and
"restrictions" in both Article XI:1 and Article XI:2.205 In this light, the reference to "[ i]mport
restrictions" in Article XI:2(c) is clearly a reference to a certain specified class of measures that fall
within quantitative (import) restrictions, but are exempted from the prohibition under Article XI:1
because they are necessary to the enforce ment of certain governmental measures. While it is the
function of Article XI:2(c) to carve out certain quantitative restrictions from the prohibition
contained in Article XI:1, this does not change the fact that they are quantitative restrictions. This
confirms the interpretation that the term "quantitative import restrictions" in footnote 1 to
Article 4.2 of the Agreement on Agriculture is broad enough to encompass both quantitative
(import) restrictions falling under Article XI:1 and "[i]mport restrictio ns" referred to in
Article XI:2(c) of the GATT 1994.

201 Indonesia's appellant's submission, para. 123.
202 Indonesia's appellant's submission, para. 122.
203 The term "balance-of-payments provisions" has been recognized as referring to, inter alia,
Articles XII and XVIII:B of the GATT 1994. (See e.g. preamble to the Understanding on the Balance-of-
Payments Provisions of the General Agreement on Tariffs and Trade 1994 (in Annex 1A to the
WTO Agreement); preamble to the Declaration on Trade Measures Taken for Balance-of-Payments Purposes
(GATT document L/4904 adopted on 28 November 1979, BISD 26S, pp. 205-209))
204 Emphasis added. Indonesia does not dispute that Article XI:2(c) of the GATT 1994 does not qualify
as a "provision[]" mentioned in the second part of footnote 1 to Article 4.2 of the Agreement on Agriculture.
(See Indonesia's appellant's submission, para. 120)
205 Appellate Body Reports, China – Raw Materials, para. 320.
WT/DS477/AB/R • WT/DS478/AB/R

5.77. Lastly, we note that Indonesia's interpretation of footnote 1 to Article 4.2 of the Agreement
on Agriculture and Article XI:2(c) of the GATT 1994 relies on the distinction between a limitation of
scope and an exception. For example, Indonesia asserts that the "common feature" of measures
falling within the second part of footnote 1 is that they are inconsistent with GATT obligations but
justified under GATT exceptions, such as Articles XII, XVIII, XIX , and XX of the GATT 1994. 206
According to Indonesia, because Article XI:2(c) is a "scope" provision and not an "exception",
whether or not this provision detracts from the obligation under Article 4.2 is not a question under
the second part of footnote 1, but r ather a question that concerns the interpretation of the
first part of footnote 1. 207 Indonesia also appears to consider that the fact that Article XI:2(c)
concerns the "scope" of the prohibition of quantitative restrictions under Article XI:1 should inform
the definition of "quantitative import restrictions" in the first part of footnote 1 to Article 4.2.208
5.78. We disagree that the distinction between a limitation of scope and an exception is
dispositive of the issue before us. As we have already explained, while Article XI:2(c) of the
GATT 1994 limits the scope of the obligation under Article XI:1 of the GATT 1994, this provision
does not define the scope of the notion of quantitative restrictions itself, because the term
"[i]mport restrictions" in Article XI:2(c ), read in light of the word "quantitative" in the title of
Article XI, is a reference to a certain class of quantitative (import) restrictions . This confirms the
interpretation that the term "quantitative import restrictions" in the first part of footnote 1 to
Article 4.2 of the Agreement on Agriculture covers the kinds of measures referred to in
Article XI:2(c). In addition, regardless of how we characterize Article XI:2(c), nothing in the text of
Article XI suggests that Article XI:2(c) limits not only t he scope of the obligation under
"paragraph 1 of this Article" but also the scope of the obligation under Article 4.2. Nor does the
text of Article 4.2 or footnote 1 suggest that the prohibition of quantitative import restrictions
under this provision is subject to the carve -outs set out in Article XI:2(c). On the contrary, the
second part of footnote 1 clearly indicates that , while measures maintained under "general, non -
agriculture-specific provisions"209 of the GATT 1994, such as Article XX, are exclu ded from the
obligation under Article 4.2, measures maintained under agriculture -specific "provisions" of the
GATT 1994, including Article XI:2(c), do not qualify for such derogations. This conclusion is not
dependent on whether Article XI:2(c) is a limita tion of scope of, or an exception from, the
obligation under Article XI:1, as the second part of footnote 1 uses the word "provisions" and does
not distinguish between a "limitation of scope" and an "exception".
5.79. In light of the foregoing, we disagree with Indonesia that agricultural measures maintained
under Article XI:2(c) of the GATT 1994 are not "quantitative import restrictions" within the
meaning of the first part of footnote 1 to Article 4.2 of the Agreement on Agriculture. We therefore
find that the prohibition of "quantitative import restrictions" under Article 4.2 extends to the kinds
of quantitative import restrictions carved out from the prohibition under Article XI:1 of the
GATT 1994 by virtue of Article XI:2(c). As a consequence, Members cannot maintain quantitative
import restrictions on agricultural products that satisfy the requirements of Article XI:2(c) of the
GATT 1994 without violating Article 4.2 of the Agreement on Agriculture. This is because the
prohibition of "quantitative import res trictions" under Article 4.2 does not allow for the kind of
derogations recognized under "agriculture -specific" provisions such as Article XI:2(c) of the
GATT 1994.
5.80. We recall in this regard that Article 21.1 of the Agreement on Agriculture provides that t he
provisions of the GATT 1994 "shall apply subject to" the provisions of that Agreement. The
Appellate Body has stated that "Members explicitly recognized that there may be conflicts between
the Agreement on Agriculture and the GATT 1994, and explicitly p rovided, through Article 21, that
the Agreement on Agriculture would prevail to the extent of such conflicts." 210 There is a conflict211
between Article XI:2(c) and Article 4.2 because quantitative import restrictions on agricultural
products that fall within the permission under the former provision cannot be maintained without
violating the latter provision. Therefore, in accordance with Article 21.1 of the

206 Indonesia's appellant's submission, para. 121.
207 See Indonesia's appellant's submission, paras. 116 and 120.
208 Indonesia's appellant's submission, para. 123.
209 Emphasis added.
210 Appellate Body Report, EC – Export Subsidies on Sugar, para. 221. (italics omitted)
211 In the context of interpreting Article 1.2 of the DSU, the Appellate Body has defined "conflict" as "a
situation where adherence to the one provision will lead to a violation of the other provision". (Appellate Body
Report, Guatemala – Cement I, para. 65) See also Panel Reports, EC – Bananas III, para. 7.159.
WT/DS477/AB/R • WT/DS478/AB/R

Agreement on Agriculture, Article XI:2(c) cannot be applied to justify or exempt measures that fall
within the prohibition of quantitative import restriction under Article 4.2.
5.81. The Panel further stated that , by virtue of Article 21.1 of the Agreement on Agriculture,
"Indonesia cannot rely upon Article XI:2(c)(ii) of the GATT 1994 to exclude Measures 4, 7 a nd 16
from the scope of Article XI:1 of the GATT 1994 because, with respect to agricultural measures,
Article XI:2(c) has been rendered inoperative by Article 4.2 of the Agreement on Agriculture." 212
By referring to "the scope of Article XI:1 of the GATT 1994", the Panel apparently considered that
Indonesia cannot rely on Article XI:2(c) not only with respect to the co -complainants' claims under
Article 4.2 of the Agreement on Agriculture, but also with respect to their claims under Article XI:1
of the GATT 1994.
5.82. We note that Indonesia has not demonstrated that Measures 4, 7, and 16 satisfy all the
elements of Article XI:2(c)(ii) of the GATT 1994 213, and thus the Panel's findings of inconsistency
of thes e measures with Article XI:1 of the GATT 1994 remain undisturbed. We also recall that
Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture contain essentially
the same substantive obligations as far as the elimination of quantitati ve import restrictions on
agricultural products is concerned. As such, the Panel's findings that Measure s 4, 7, and 16 are
quantitative restrictions on the importation of agricultural products inconsistent with Article XI:1
would, without requiring much mo re, lead to the conclusion that these measures also fall within
the prohibition of quantitative import restrictions under Article 4.2 and the first part of footnote 1
thereto.214 Accordingly, and because Article XI:2(c) cannot be invoked to justify or exempt
measures falling within the prohibition of Article 4.2, Indonesia cannot maintain, resort to, or
revert to Measures 4, 7, or 16 regardless of whether Article XI:2(c) is being invoked by Indonesia
in relation to Article XI:1 or Article 4.2.
5.83. We further not e that , while Article 21.1 of the Agreement on Agriculture governs the
relationship between Article 4.2 of the Agreement on Agriculture and Article XI:2(c) of the
GATT 1994, it does not necessarily follow that Article 21.1 affects the internal relationship between
Article XI:1 and XI:2(c) of the GATT 1994, in the sense that Article 21.1 precludes Members from
relying on Article XI:2(c) not only vis-à-vis claims under Article 4.2 but also vis-à-vis claims under
Article XI:1 of the GATT 1994. In any event, our finding that Indonesia cannot rely on
Article XI:2(c) to justify or exempt its measures with respect to the prohibition of quantitative
import restrictions under Article 4.2 would provide sufficient guidance for the purpose of resolving
the present dispu te, including in relation to the implementation by Indonesia of the
recommendations and rulings by the DSB.
5.3.3 Conclusions
5.84. For the reasons stated above, we disagree with Indonesia that agricultural measures
maintained under Article XI:2(c) of the GATT 1994 ar e not "quantitative import restrictions" within
the meaning of the first part of footnote 1 to Article 4.2 of the Agreement on Agriculture. We
therefore find that the prohibition of "quantitative import restrictions" under Article 4.2 extends to
measures s atisfying the requirements of Article XI:2(c). We further find that, by virtue of
Article 21.1 of the Agreement on Agriculture, Article XI:2(c) of the GATT 1994 cannot be relied
upon to justify or exempt quantitative import restrictions that are inconsistent with Article 4.2 of
the Agreement on Agriculture. In addition, t he Panel's findings that Measures 4, 7, and 16 are

213 In its appellant's submission, Indonesia explains that "[t]o fall within the scope of Article XI:2(c)(ii),
a measure must fulfil the following relevant conditions: (i) it must be an import restriction; (ii) on any
agricultural or fisheries product, (iii) imported in any form, (iv) necessary to the enforcement of governmental
measures; (v) operating to remove a temporary surplus of the like domestic product; (vi) by making the
surplus available to certain groups of domestic consumers free of charge or at prices below the current market
level." (Indonesia's appellant's submission, para. 118 (fns omitted)) However, before the Panel, Indonesia did
not, among others, identify the specific governmental measures which operate to remove the temporary
surplus of a domestic product, or demonstrate that the surplus has been made available to domestic
consumers free of charge or at discounted prices. (See Indonesia's second written submission to the Panel,
paras. 197, 199, 203, and 252-257)
214 We note our earlier conclusion that Article XX of the GATT 1994 can be invoked in relation to both
the prohibition of quantitative restrictions under Article XI:1 of the GATT 1994 and the prohibition of
quantitative import restrictions under Article 4.2 and the first part of footnote 1 of the Agreement on
Agriculture, and that the same allocation of the burden of proof under Article XX applies.
WT/DS477/AB/R • WT/DS478/AB/R

quantitative restrictions on the importation of agricultural products inconsistent with Article XI:1 of
the GATT 1994 would lead to the conclusion that these measures also fall within the prohibition of
quantitative import restrictions under Article 4.2. This conclusion does not chang e regardless of
whether Article XI:2(c) is being invoked by Indonesia in relation to Article XI:1 or Article 4.2.
5.85. Accordingly, we uphold the Panel's finding, in paragraph 7.60 of the Panel Report , to the
extent that it states that, by virtue of Article 21.1 of the Agreement on Agriculture, Article XI:2(c)
of the GATT 1994 cannot be relied upon to justi fy or exempt measures falling within the
prohibition of quantitative import restrictions under Article 4.2 of the Agreement on Agriculture.
5.4 Indonesia's claim under Article XX of the GATT 1994
5.86. We now turn to Indonesia's claim on appeal that the Panel erred in finding that Indonesia
had failed to demonstrate that Measures 9 through 17 are justified under Article XX of the
GATT 1994. Indonesia takes issue with the fact that the Panel assessed whet her Measures 9
through 17 met the requirements of the chapeau of Article XX, without first examining whether
these measures were provisionally justified under the applicable paragraphs of Article XX.
According to Indonesia, in so doing, the Panel failed to follow the well -established sequence of
analysis under Article XX for determining whether measures are justified. 215 On this basis,
Indonesia requests us to reverse the Panel's conclusions in paragraphs 7.824, 7.826, 7.827, and
7.829 of the Panel Report, as well as the Panel's findings in paragraphs 7.830 and 8.1.c 216, insofar
as these conclusions and findings pertain to Measures 9 through 17. 217 Should we reverse these
findings by the Panel, as Indonesia requests us to do, Indonesia submits that there are
"insufficient factual findings on the record" in respect of Measures 9 through 17 for us to complete
the legal analysis under Article XX.218
5.87. We first set out briefly the Panel's conclusions and findings under Article XX of the
GATT 1994, prior to addressing the order of analysis under that provision.
5.4.1 The Panel's conclusions and findings
5.88. Before the Panel, Indonesia raised a number of defences under Article XX(a), (b), and (d) of
the GATT 1994 in respect of Measures 1 through 17, which the Panel decided to address in turn,
starting with Measure 1.219 In assessing these defences, the Panel recalled that "the assessment of
a claim of justification under Article XX involves a two -tiered analysis in which a measure must
(i) be provisionally justified under one of the sub paragraphs of Article XX … and then (ii) analysed
under the chapeau of Article XX."220 Addressing Measures 1 through 7 in turn, the Panel found that
Indonesia had failed to demonstrate that any of these measures are provisionally justified under
Article XX(a), (b), or (d). Having reached these findings, the Panel refrained from analysing these
measures under the chapeau of Article XX, and found that Indonesia had failed to demonstrate
that any of these measures are justified under Article XX(a), (b), or (d).221
5.89. Turning to Measure 8, the Panel equally found that Indonesia had failed to demonstrate that
this measure is provisionally justified under Article XX(b), but considered that this particular
finding could be appealed.222 The Panel observed that, if that were the case, "the Appellate Body
[would] need sufficient facts on the record to address any argument under the chapeau of

215 Indonesia's appellant's submission, para. 129.
216 Indonesia's appellant's submission, para. 160.
217 Indonesia's response to questioning at the oral hearing.
218 Indonesia's appellant's submission, para. 161.
219 Panel Report, para. 7.520. The Panel provided an overview of Indonesia's defences under
Article XX(a), (b), and (d) of the GATT 1994 in respect of Measures 1 through 17 in a table at paragraph 7.519
of its Report. We note that, while Indonesia had also raised a defence under Article XX(b) in respect of
Measure 18, the Panel dismissed this defence on a preliminary basis because Indonesia had failed to make a
220 Panel Report, para. 7.561 (referring to Appellate Body Reports, EC – Seal Products, para. 5.169, in
turn referring to Appellate Body Reports, US – Gasoline, p. 22, DSR 1996:I, p. 20; US – Shrimp,
paras. 119-120; US – Gambling, para. 292). See also paras. 7.618 and 7.648.
221 Panel Report, paras. 7.585-7.586, 7.594-7.595, 7.605-7.606, 7.635-7.636, 7.660-7.661, 7.682-
7.683, 7.692-7.693, 7.720-7.721, 7.742-7.743, 7.750-7.751, and 7.776-7.777.
222 Panel Report, para. 7.804.
WT/DS477/AB/R • WT/DS478/AB/R

Article XX".223 The Panel therefore decided to "assume arguendo" that Measure 8 is provisionally
justified and to "examine whether Measure 8 is applied in a manner consistent with the chapeau of
Article XX."224 However, given that Indonesia had conflated its arguments under the chapeau of
Article XX225, the Panel proceeded to examine "whether Indonesia's import licen sing regimes for
horticultural products and animals and animal products as a whole, including the individual
measures therein, are applied in a manner consistent with the chapeau, with respect to all
three relevant subparagraphs of Article XX of the GATT 1994."226 Thus, r ather than focus ing
exclusively on Measure 8, the Panel addressed Measures 1 through 17 under the chapeau of
Article XX and found that "Indonesia ha [d] failed to demonstrate that its import licensing regimes
for horticultural products and ani mals and animal products as a whole, and the individual
measures therein, including Measure 8, are applied in a manner consistent with the chapeau of
Article XX".227 On this basis, the Panel found that Indonesia had failed to demonstrate that
Measure 8 is justified under Article XX(b).228
5.90. Finally, the Panel turned to Measures 9 through 17. In essence, the Panel recalled that
Indonesia had failed to demonstrate that these measures are applied in a manner consistent with
the chapeau of Article XX and observed that compliance with the chapeau is a necessary
requirement in order for a measure to find justification under this provision. 229 For this reason, the
Panel refrained from continuing its analysis of Indonesia's defences under Arti cle XX(a), (b), or (d)
for Measures 9 through 17230, and found that "Indonesia ha [d] failed to demonstrate that
Measures 9 through 17 are justified under Articles XX(a), (b) or (d) of the GATT 1994, as
appropriate."231 Thus, whereas the Panel assessed first wh ether Measures 1 through 8 are
provisionally justified under Article XX(a), (b), or (d), the Panel assessed Measures 9 through 17
only under the chapeau of Article XX , and, on this sole basis, dismissed Indonesia's defences in
respect of these measures.
5.4.2 The order of analysis under Article XX of the GATT 1994
5.91. As briefly set out above, Indonesia claims that the Panel erred in finding that Indonesia had
failed to demonstrate that Measures 9 through 17 are justified under Article XX(a), (b) , or (d) of
the GATT 1994 because the Panel assessed these measures only under the chapeau of that
provision and did not examine whether these measures are provisionally justified under the
relevant paragraphs of Article XX. 232 According to Indonesia, Article XX requires panels to assess
first, whether the measure at issue is provisionally justified under the relevant paragraphs of
Article XX and, second, whether the provisionally justified measure complies with the requirements
of the chapeau of Article XX.233 Indonesia submits t hat the Panel erred by not following this
"mandatory sequence" in respect of Measures 9 through 17. 234 In addition, Indonesia submits that
"the Panel's failure to structure its analysis in the mandatory sequence had repercussions for the
substance of its analysis."235

223 Panel Report, para. 7.804.
224 Panel Report, para. 7.804.
225 Indonesia argued that its import licensing regimes for horticultural products and animals and animal
products "as a whole" are applied in a manner consistent with the chapeau of Article XX of the GATT 1994,
"without making any relevant distinctions between the individual measures at issue" and by "conflat[ing] all
three defences under subparagraphs (a), (b) and (d) of Article XX of the GATT 1994". (Panel Report,
para. 7.805 (fn omitted))
226 Panel Report, para. 7.805.
227 Panel Report, para. 7.827.
228 Panel Report, para. 7.828.
229 Panel Report, para. 7.829.
230 Panel Report, para. 7.829.
231 Panel Report, para. 7.830.
232 Indonesia's appellant's submission, paras. 129 and 150 (referring to Panel Report,
paras. 7.829-7.830).
233 Indonesia's appellant's submission, para. 140 (referring to Appellate Body Report,
US – Gasoline, p. 22, DSR 1996:I, p. 20).
234 Indonesia's appellant's submission, para. 151 (referring to Appellate Body Report,
US – Shrimp, paras. 119-120 and 122) and para. 152.
235 Indonesia's appellant's submission, para. 153 (referring to Appellate Body Report,
Canada – Wheat Exports and Grain Imports, para. 109). Moreover, Indonesia argues that the legal error
committed by the Panel was "linked to its examination of 'Indonesia's import licensing regimes for horticultural
products and animals and animal products' as a whole". (Ibid., para. 156 (quoting Panel Report, para. 7.806))
WT/DS477/AB/R • WT/DS478/AB/R

5.92. In contrast, New Zealand and the United States take the view that analysing a measure
under the chapeau without first assessing it under the applicable paragraphs of Article XX is not
per se a reversible legal error. 236 Rather, according to them, i t is only ground for reversal if it
causes a panel's conclusion to be substantively wrong.237 In the instant case, New Zealand and the
United States consider that the Panel conducted a substantively correct analysis of the chapeau of
Article XX, and there is thus no basis for reversing the Panel's finding under Article XX in respect of
Measures 9 through 17.238
5.93. We recall that Article XX of the GATT 1994 provides, in relevant part239:
Article XX
General Exceptions
Subject to the requirement that such measures are not applied in a manner which
would constitute a means of arbitrary or unjustifiable discrimination between countries
where the same conditions prevail, or a disguised restriction on international trade,
nothing in this Agreement shall be construed to pre vent the adoption or enforcement
by any Member of measures:
(a) necessary to protect public morals;
(b) necessary to protect human, animal or plant life or health;
…
(d) necessary to secure compliance with laws or regulations which are not
inconsistent with the provisions of this Agreement, including those relating to
customs enforcement, the enforcement of monopolies operated under
paragraph 4 of Article II and Article XVII, the protection of patents, trade marks
and copyrights, and the prevention of deceptive practices; …
5.94. Members can resort to Article XX as an exception to justify measures that would otherwise
be inconsistent with GATT obligations. Article XX is made up of two main parts: (i) ten paragraphs,
which enumerate the various categories of "governmental acts, laws or regulations which
WTO Members may carry out or promulgate in pursuit of differing legitimate state policies or
interests outside the realm of trade liberalization"240; and (ii) the chapeau, which imposes
additional disciplines on measures that have been found to be provisionally justified under one of
the paragraphs of Article XX.241
5.95. The chapeau and the paragraphs of Article XX contain independent requir ements that must
be satisfied for a measure to be justified. Specifically, the chapeau of Article XX serves the purpose
of ensuring that provisionally justified measures under one of the paragraphs are not applied in
such a way as would constitute an abuse of the exceptions of Article XX.242 The chapeau does so
by requiring that measures not be "applied in a manner which would constitute a means of
arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or

According to Indonesia, in light of the principle of jura novit curia, the Panel was not "driven" to follow
Indonesia's approach of assessing the regimes "as a whole" under the chapeau of Article XX of the GATT 1994.
(Ibid., para. 158) In this context, Indonesia reiterates that the Panel should have examined whether
Measures 9 through 17 were provisionally justified under the relevant paragraphs of Article XX. (Ibid.,
para. 159)
236 New Zealand's appellee's submission, paras. 139 and 145; United States' appellee's submission,
para. 178.
237 New Zealand's appellee's submission, para. 138; United States' appellee's submission, para. 179.
238 New Zealand's appellee's submission, paras. 153 and 186; United States' appellee's submission,
para. 204.
239 As set out above, Indonesia invoked paragraphs (a), (b), and (d) of Article XX of the GATT 1994 to
justify its measures at issue in this dispute.
240 Appellate Body Report, US – Gasoline, p. 17, DSR 1996:I, p. 16.
241 Appellate Body Reports, EC – Seal Products, para. 5.296.
242 See e.g. Appellate Body Reports, US – Gasoline, p. 22, DSR 1996:I, p. 21; US – Shrimp, para. 156;
EC – Seal Products, para. 5.297.
WT/DS477/AB/R • WT/DS478/AB/R

a disguised re striction on international trade". Accordingly, the function of the chapeau of
Article XX is "to prevent abuse of the exceptions specified in the paragraphs of that provision" 243,
and to ensure that a balance is struck between the right of a Member to invoke an exception under
Article XX and the substantive rights of other Members under the GATT 1994.244
5.96. It follows from the relationship between the chapeau of Article XX and the
paragraphs thereof that Article XX sets out a two-tier test for determining whether a measure that
would otherwise be inconsistent with GATT obligations can be justified under that provision . This
test involves , first, an assessment of whether the measure falls under at least one of the
ten exceptions listed in the paragraphs of Article XX, and, second, an assessment of whether the
measure satisfies the requirements of the chapeau of that provision. This sequence reflects the
fact that considering first the measure at issue under the applicable paragraphs of Article XX
provides panels with the necessary tools to assess that measure under the chapeau of Article XX.
In particular, in the analysis under the applicable paragraph , panels determine whether the
objective of the measure at issue is one that is protected under the paragraphs of Article XX. If the
measure is found to be provisionally justified under one of the paragraphs of Article XX, th at
objective is then relevant in assessing the measure under the chapeau. Other elements of the
analysis under the applicable paragraphs of Article XX might be relevant in assessing a measure
under the chapeau.
5.97. The Appellate Body set out the sequence of analysis under Article XX for the first time in
US – Gasoline245 and has, s ince then, recalled that sequence in a number of its reports.246 In
US –Shrimp, the Appellate Body highlighted that this sequence "reflects, not inadvertence or
random choice, but rather the fundamental structure and logic of Article XX".247 As the
Appellate Body stated, "[t]he task of interpreting the chapeau so as to prevent the abuse or
misuse of the specific exemptions provided for in Article XX is rendered very difficult, if indeed it

243 Appellate Body Report, Brazil – Retreaded Tyres, para. 227 (referring to Appellate Body Report,
US – Gasoline, p. 22, DSR 1996:I, p. 21).
244 Appellate Body Reports, EC – Seal Products, para. 5.297 (referring to Appellate Body Report,
245 In US – Gasoline, the Appellate Body stated:
In order that the justifying protection of Article XX may be extended to it, the measure at issue
must not only come under one or another of the particular exceptions – paragraphs (a) to (j) –
listed under Article XX; it must also satisfy the requirements imposed by the opening clauses of
Article XX. The analysis is, in other words, two-tiered: first, provisional justification by reason of
characterization of the measure under XX(g); second, further appraisal of the same measure
under the introductory clauses of Article XX.
(Appellate Body Report, US – Gasoline, p. 22, DSR 1996:I, p. 20)
246 In US – Shrimp and Dominican Republic – Import and Sale of Cigarettes, the Appellate Body quoted
the paragraph of the report in US – Gasoline setting out the sequence of analysis under Article XX.
(Appellate Body Reports, US – Shrimp, para. 118; Dominican Republic – Import and Sale of Cigarettes,
para. 64 (both quoting Appellate Body Report, US – Gasoline, p. 22, DSR 1996:I, p. 20)) In Brazil – Retreated
Tyres, the Appellate Body recalled:
the analysis of a measure under Article XX of the GATT 1994 is two-tiered. First, a panel must
examine whether the measure falls under at least one of the ten exceptions listed under
Article XX. Secondly, the question of whether the measure at issue satisfies the requirements of
the chapeau of Article XX must be considered.
(Appellate Body Report, Brazil – Retreated Tyres, para. 139 (referring to Appellate Body Reports,
US – Gasoline, p. 22, DSR 1996:I, p. 20; Dominican Republic – Import and Sales of Cigarettes, para. 64;
US –Shrimp, para. 149)) In the same vein, in EC – Seal Products, the Appellate Body found:
As established in WTO jurisprudence, the assessment of a claim of justification under Article XX
involves a two-tiered analysis in which a measure must first be provisionally justified under
one of the subparagraphs of Article XX, before it is subsequently appraised under the chapeau of
Article XX.
(Appellate Body Reports, EC – Seal Products, para. 5.169 (referring to Appellate Body Reports, US – Gasoline,
p. 22, DSR 1996:I, p. 20; US – Shrimp, paras. 119 and 120; US – Gambling, para. 292)) More recently, in
Colombia – Textiles, the Appellate Body stated:
The analysis of a measure under Article XX of the GATT 1994 is two-tiered, such that a panel
must first examine whether the measure falls under one of the exceptions listed in the
paragraphs of Article XX, before considering the question of whether the measure satisfies the
requirements of the chapeau of Article XX.
(Appellate Body Report, Colombia – Textiles, para. 5.67 (referring to Appellate Body Reports, US – Gasoline,
p. 22, DSR 1996:I, p. 20; Dominican Republic – Import and Sale of Cigarettes, para. 64; US – Shrimp,
247 Appellate Body Report, US – Shrimp, para. 119.
WT/DS477/AB/R • WT/DS478/AB/R

remains possible at all, where the interpreter … has not first identifi ed and examined the specific
exception threatened with abuse."248
5.98. Furthermore, the Appellate Body has recognized that the objective that is found to justify
provisionally the measure at issue under a paragraph of Article XX is a relevant consideration to
assess whether there is "arbitrary or unjustifiable discrimination between countries where the
same conditions prevail" pursuant to the chapeau of Article XX. Specifically, in Brazil – Retreaded
Tyres, the Appellate Body stated that "[t]he assessment of whether discrimination is arbitrary or
unjustifiable should be made in the light of the objective of the measure."249 The Appellate Body
further noted that it would "have difficulty understanding how discrimination might be viewed as
complying with the chapeau of Article XX when the alleged rationale for discriminating does not
relate to the pursuit of or would go against the objective that was provisionally found to justify a
measure under a paragraph of Article XX."250
5.99. In the same vein, in EC – Seal Products , the Appellate Body stated that the analysis of
whether discrimination is arbitrary or unjustifiable with in the meaning of the chapeau of Article XX
"should focus on the cause of the discrimination, or the rationale put forward to explain its
existence".251 The Appellate Body added that "[o]ne of the most important factors in the
assessment of arbitrary or unjustifiable discrimination is the question of whether the discrimination
can be reconciled with, or is rationally related to, the policy objective with respect to which the
measure has been provisionally justified under one of the subparagraphs of Article XX."252
Moreover, in that case, the Appellate Body stated that , "in determining which 'conditions'
prevailing in different countries are relevant in the context of the chapeau, the subparagraphs of
Article XX, and in particular the subparagraph under which a m easure has been provisionally
justified, provide pertinent context ."253 In other words, the relevant "conditions" for the analysis
under the chapeau are the ones that relate to the particular policy objective under the applicable
paragraph of Article XX.254 The Appellate Body further recalled that the function of the chapeau is
to maintain the equilibrium between the obligations under the GATT 1994 and the exceptions
provided under each paragraph of Article XX. As the Appellate Body considered, this confirms that
"the identification of the relevant 'conditions' under the chap eau should be understood by
reference to the applicable subparagraph of Article XX under which the measure was provisionally
justified and the substantive obligations under the GATT 1994 with which a violation has been
found."255
5.100. We accept that, depending on the particular circumstances of the case at hand, including
the way in which the defence is presented, a panel might be able to identify and analyse the
elements under the applicable paragraphs of Article XX that are relevant to assess the
requirements of the chapeau even when the sequence of analysis under Article XX has not been
followed. Therefore, depending on the particular circumstances of the case, a panel that deviates
from the sequence of analysis under Article XX might not necessarily, for that r eason alone,
commit a reversible legal error provided the panel has made findings on those elements under the
applicable paragraphs that are relevant for its analysis of the requirements of chapeau. However,
in light of our analysis above, we consider that the task of assessing a particular measure under
the chapeau so as to prevent the abuse of the exceptions provided for in Article XX is rendered
difficult where the panel has not first identified and examined the specific exception at issue.
Following the normal sequence of analysis under Article XX provides panels with the necessary
tools to assess the requirements of the chapeau in respect of a particular measure. Moreover, a
finding that a Member has failed to comply with the requirements of the applica ble paragraph of
Article XX may not have the same implications regarding implementation as compared to a finding
that a Member has failed to comply with the requirements of the chapeau.

248 Appellate Body Report, US – Shrimp, para. 120.
249 Appellate Body Report, Brazil – Retreaded Tyres, para. 227.
250 Appellate Body Report, Brazil – Retreaded Tyres, para. 227.
251 Appellate Body Reports, EC – Seal Products, para. 5.303 (quoting Appellate Body Report,
Brazil – Retreaded Tyres, para. 226, in turn referring to Appellate Body Reports, US – Gasoline; US – Shrimp;
US – Shrimp (Article 21.5 – Malaysia)).
252 Appellate Body Reports, EC – Seal Products, para. 5.306 (referring to Appellate Body Reports,
US – Shrimp, para. 165; Brazil – Retreaded Tyres, paras. 227-228 and 232).
253 Appellate Body Reports, EC – Seal Products, para. 5.300.
254 Appellate Body Reports, EC – Seal Products, para. 5.300.
255 Appellate Body Reports, EC – Seal Products, para. 5.301.
WT/DS477/AB/R • WT/DS478/AB/R

5.4.3 Conclusions
5.101. As discussed above, the normal sequence of analysis under Article XX of the GATT 1994
involves, first, an assessment of whether the measure at issue is provisionally justified under one
of the paragraphs of Article XX and, second, an assessment of whether that measure also meets
the requirements of the chapeau of Article XX. This reflects "the fundamental structure and logic of
Article XX".256 It also comports with the function of the chapeau of Article XX, which is "to prevent
abuse of the exceptions specified in the paragraphs of that provision" 257, and to ensure t hat a
balance is struck between the right of a Member to invoke an exception under Article XX and the
substantive rights of other Members under the GATT 1994.258 Depending on the particular
circumstances of the case, a panel that deviates from the sequence o f analysis under Article XX
might not necessarily, for that reason alone, commit a reversible legal error provided the panel
has made findings on those elements under the applicable paragraphs that are relevant for its
analysis of the requirements of the chapeau. However, following the normal sequence of analysis
under Article XX provides panels with the necessary tools to assess the requirements of the
chapeau.
5.102. Having made these observations, we note Indonesia's contention that it would not be
possible for us to complete the legal analysis to determine whether Measures 9 through 17 are
justified under Article XX(a), (b) , or (d) of the GATT 1994 . According to Indonesia, there are
"insufficient factual findings on the record" in respect of Measures 9 through 17 for us to do so.259
We further note that, even if we were to accede to Indonesia's request on appeal and reverse the
Panel's findings and conclusions under Article XX in respect of Measures 9 through 17 without
completing the legal analysis, the Panel's findings that these measures are inconsistent with
Article XI:1 of the GATT 1994 would remain undisturbed.260
5.103. For this reason, we consider that a ruling on Indonesia's claim on appeal under Article XX
is unnecessary for the purposes of resolving this disput e. Therefore, we decline to rule on
Indonesia's claim on appeal under Article XX of the GATT 1994 and declare the Panel's finding that
"Indonesia ha [d] failed to demonstrate that Measures 9 through 17 are justified under
Articles XX(a), (b) or (d) of the G ATT 1994, as appropriate", in paragraph 7.830 of the Panel
Report261, moot and of no legal effect.
6 FINDINGS AND CONCLUSIONS
6.1. For the reasons set out in this Report, the Appellate Body makes the following findings and
conclusions.
6.1 The Panel's decision to comm ence its legal analysis with the claims under
Article XI:1 of the GATT 1994
6.2. We consider that Article 4.2 of the Agreement on Agriculture does not apply "to the exclusion
of"262 Article XI:1 of the GATT 1994 in relation to the claims challenging the 18 measures at issue

256 Appellate Body Report, US – Shrimp, para. 119.
257 Appellate Body Report, Brazil – Retreaded Tyres, para. 227 (referring to Appellate Body Report,
US –Gasoline, p. 22, DSR 1996:I, p. 21).
258 Appellate Body Reports, EC – Seal Products, para. 5.297 (referring to Appellate Body Report,
259 Indonesia's appellant's submission, para. 161. At the oral hearing, New Zealand suggested that
completing the legal analysis would contribute to providing sufficiently precise recommendations and rulings for
the purposes of implementation. (New Zealand's response to questioning at the oral hearing). For its part, the
United States clarified that, should we reverse the Panel's findings under Article XX of the GATT 1994 in
respect of Measures 9 through 17, it is not requesting that we complete the legal analysis. Moreover, given the
absence of a request for completion by Indonesia, the United States considers that completing the legal
analysis would not be necessary in this case. (United States' response to questioning at the oral hearing)
260 On appeal, the United States notes that Indonesia does not request that we complete the legal
analysis and find that any of Indonesia's measures are justified under Article XX of the GATT 1994. According
to the United States, "Indonesia's appeal could result in no change to the DSB recommendations and rulings,
or Indonesia's obligations regarding implementation, because the findings under Article XI:1 will remain
undisturbed." Consequently, the United States submits that it is not necessary for us to consider Indonesia's
appeal under Article XX of the GATT 1994. (United States' appellee's submission, paras. 168-169)
261 See also Panel Report, para. 8.1.c.vi.
262 Indonesia's appellant's submission, para. 53. (emphasis original)
WT/DS477/AB/R • WT/DS478/AB/R

as quantitative restrictions. Both provisions contain the same substantive obligations in relation to
these claims263 and, thus, in these circumstances, they apply cumulatively. Moreover, there is no
mandatory sequence of analysis between Article 4.2 of the Agreement on Agriculture and
Article XI:1 of the GATT 1994 in this dispute , and the decision as to whether to commence the
analysis with the claims under Article XI:1 or those under Article 4.2 was within the Panel's margin
of discretion. We also consider that Indonesia has not substantiated its claim under Article 11 of
the DSU that the Panel failed to make an objective assessment of the applicability of Article 4.2 of
the Agreement on Agriculture.
a. Therefore, we reject Indonesia's claim that the Panel erred in assessing the claims
regarding the measures at issue under Article XI:1 of the GATT 1994, rather than
Article 4.2 of the Agreement on Agriculture.
b. In additi on, we find that Indonesia has not demonstrated that the Panel acted
inconsistently with Article 11 of the DSU by failing to make an objective assessment of
the applicability of Article 4.2 of the Agreement on Agriculture.
c. Consequently, we uphold the Panel's decision, in paragraph 7.33 of the Panel Report, to
commence its examination with Article XI:1 of the GATT 1994.
6.2 Whether the Panel erred in determining that Indonesia bears the burden of proof
under the second part of footnote 1 to Article 4.2 of the Agreement on Agriculture
6.3. Article 4.2 of the Agreement on Agriculture and footnote 1 thereto, read in their relevant
context, do not suggest that the nature of Article XX of the GATT 1994 as an affirmative defence is
modified by virtue of its incorporation into the second part of footnote 1 to Article 4.2. In addition,
we consider that Indonesia has not substantiated its claim under Article 11 of the DSU that the
Panel failed to conduct an objective assessment of which party bears the burden of proof under
the second part of footnote 1 to Article 4.2.
a. Therefore, we find that the burden of proof under Article XX of the GATT 1994 remains
with the respondent even when Article XX is applied thro ugh the reference in the
second part of footnote 1 to Article 4.2 of the Agreement on Agriculture.
b. In addition, we find that Indonesia has not demonstrated that the Panel acted
inconsistently with Article 11 of the DSU by failing to make an objective assessment of
which party bears the burden of proof under the second part of footnote 1 to Article 4.2
of the Agreement on Agriculture.
c. Consequently, we uphold the Panel's finding, in paragraph 7.34 of the Panel Report, that
the burden of proof under Article XX of the GATT 1994 referred to in the second part of
footnote 1 to Article 4.2 of the Agreement on Agriculture rests on Indonesia.
6.4. With respect to Indonesia's request to reverse the Panel's finding in paragraphs 7.833 and
8.2 of the Panel Report 264, which pertains to the Panel's exercise of judicial economy with respect
to Article 4.2 of the Agreement on Agriculture, Indonesia has not explained how the alleged error
by the Panel in connection with the allocation of the burden of proof under the second part of
footnote 1 to Article 4.2 leads to the conclusion that the Panel erred in exercising judicial economy.
In any event, as we have found that the burden of proof under Article XX of the GATT 1994
remains with the respondent also in the context of Article 4.2 of the Agreement on Agriculture and
footnote 1 thereto, we see no re ason to disturb the Panel's decision to exercise judicial economy
with respect to the co-complainants' claims under Article 4.2 of the Agreement on Agriculture.
a. Therefore, we reject Indonesia's request to reverse the Panel's finding in
paragraphs 7.833 and 8.2 of the Panel Report.

263 See also section 6.2 below.
264 Indonesia's appellant's submission, paras. 95 and 107.
WT/DS477/AB/R • WT/DS478/AB/R

6.3 Indonesia's alternative claim that the Panel erred in finding that Article XI:2(c) of
the GATT 1994 has been rendered "inoperative" by Article 4.2 of the Agreement on
Agriculture
6.5. We disagree with Indonesia that agricultural measures maintained under Article XI:2(c) of
the GATT 1994 are not "quantitative import restrictions" within the meaning of the first part of
footnote 1 to Article 4.2 of the Agreement on Agriculture.
a. Therefore, we find that the prohibition of "quantitative im port restrictions" under
Article 4.2 of the Agreement on Agriculture extends to measures satisfying the
requirements of Article XI:2(c) of the GATT 1994.
b. We further find that, by virtue of Article 21.1 of the Agreement on Agriculture,
Article XI:2(c) of the GATT 1994 cannot be relied upon to justify or exempt quantitative
import restrictions that are inconsistent with Article 4.2 of the Agreement on Agriculture.
6.6. In addition, the Panel's findings that Measures 4, 7, and 16 are quantitative restrictions on
the importation of agricultural products inconsistent with Article XI:1 of the GATT 1994 would lead
to the conclusion that these measures also fall within the prohibition of qu antitative import
restrictions under Article 4.2 of the Agreement on Agriculture . This conclusion does not change
regardless of whether Article XI:2(c) is being invoked by Indonesia in relation to Article XI:1 or
Article 4.2.
a. Consequently, we uphold the Panel's finding, in paragraph 7.60 of the Panel Report, to
the extent that it states that, by virtue of Article 21.1 of the Agreement on Agriculture,
Article XI:2(c) of the GATT 1994 cannot be relied upon to justify or exempt measures
falling within the pro hibition of quantitative import restrictions under Article 4.2 of the
Agreement on Agriculture.
6.4 Indonesia's claim under Article XX of the GATT 1994
6.7. The normal sequence of analysis under Article XX of the GATT 1994 involves, first, an
assessment of whether the measure at issue is provisionally justified under one of the paragraphs
of Article XX and, second, an assessment of whether that measure also meets the requirements of
the chapeau of Article XX. This reflects "the fundamental structure and logic of Ar ticle XX".265 It
also comports with the function of the chapeau of Article XX, which is "to prevent abuse of the
exceptions specified in the paragraphs of that provision" 266, and to ensure that a balance is struck
between the right of a Member to invoke an exc eption under Article XX and the substantive rights
of other Members under the GATT 1994.267 Depending on the particular circumstances of the case,
a panel that deviates from the sequence of analysis under Article XX might not necessarily, for
that reason alone, commit a reversible legal error provided the panel has made findings on those
elements under the applicable paragraphs that are relevant for its analysis of the requirements of
the chapeau. However, following the normal sequence of analysis under Artic le XX provides panels
with the necessary tools to assess the requirements of the chapeau.
6.8. Having made these observations, we note Indonesia's contention that it would not be
possible for us to complete the legal analysis to determine whether Measures 9 th rough 17 are
justified under Article XX(a), (b) , or (d) of the GATT 1994 . According to Indonesia, there are
"insufficient factual findings on the record" in respect of Measures 9 through 17 for us to do so.268
We further note that, even if we were to accede to Indonesia's request on appeal and reverse the
Panel's findings and conclusions under Article XX in respect of Measures 9 through 17 without

265 Appellate Body Report, US – Shrimp, para. 119.
266 Appellate Body Report, Brazil – Retreaded Tyres, para. 227 (referring to Appellate Body Report,
US – Gasoline, p. 22, DSR 1996:I, p. 21).
267 Appellate Body Reports, EC – Seal Products, para. 5.297 (referring to Appellate Body Report,
268 Indonesia's appellant's submission, para. 161.