Indonesia – importation of horticultural products,
animals and animal products

AB-2017-2

Report of the Appellate Body

Table of Contents

1   Introduction.. 8

2   Arguments of the Participants. 14

3   Arguments of the third participants. 14

4   Issues Raised in This Appeal. 14

5   Analysis of the Appellate Body. 15

5.1   The Panel's decision to commence its legal analysis with the claims under Article XI:1 of the GATT 1994  15

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 Agriculture. 16

5.1.2   Whether a mandatory sequence of analysis exists between Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture. 19

5.1.3   Whether the Panel failed to make an objective assessment of the applicability of Article 4.2 of the Agreement on Agriculture. 21

5.1.4   Conclusions. 23

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. 23

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. 24

5.2.2   Whether 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. 24

5.2.3   Whether the Panel 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. 28

5.2.4   Conclusions. 30

5.3   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. 30

5.3.1   Whether the Appellate Body should decline to rule on Indonesia's alternative claim on appeal 31

5.3.2   Whether the Panel erred in finding that Article XI:2(c) of the GATT 1994 has been rendered "inoperative" with respect to agricultural measures. 31

5.3.3   Conclusions. 36

5.4   Indonesia's claim under Article XX of the GATT 1994. 37

5.4.1   The Panel's conclusions and findings. 37

5.4.2   The order of analysis under Article XX of the GATT 1994. 38

5.4.3   Conclusions. 42

6   Findings And Conclusions. 42

6.1   The Panel's decision to commence its legal analysis with the claims under Article XI:1 of the GATT 1994  42

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. 43

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. 44

6.4   Indonesia's claim under Article XX of the GATT 1994. 44

6.5   Recommendation. 45