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