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Report of the Panel

CASES CITED IN THIS REPORT

Short titleFull case title
Argentina – Financial Services Appellate Body Report, Argentina – Measures Relating to Trade in Goods and Services, WT/DS453/AB/R and Add.1, adopted 9 May 2016
Argentina – Hides and Leather Panel Report, Argentina – Measures Affecting the Export of Bovine Hides and Import of Finished Leather, WT/DS155/Rand Corr.1, adopted 16 February 2001, DSR 2001:V, p. 1779
Argentina – Import Measures Appellate Body Reports, Argentina – Measures Affecting the Importation of Goods, WT/DS438/AB/R / WT/DS444/AB/R / WT/DS445/AB/R, adopted 26 January 2015
Argentina – Import Measures Panel Reports, Argentina – Measures Affecting the Importation of Goods, WT/DS438/R and Add.1 / WT/DS444/R and Add.1 / WT/DS445/R and Add.1, adopted 26 January 2015, as modified (WT/DS438/R) and upheld (WT/DS444/R / WT/DS445/R) by Appellate Body Reports WT/DS438/AB/R / WT/DS444/AB/R / WT/DS445/AB/R
Australia – Apples Appellate Body Report, Australia – Measures Affecting the Importation of Apples from New Zealand, WT/DS367/AB/R, adopted 17 December 2010, DSR 2010:V, p. 2175
Australia – Automotive Leather II Panel Report, Australia – Subsidies Provided to Producers and Exporters of Automotive Leather, WT/DS126/R, adopted 16 June 1999, DSR 1999:III, p. 951
Australia – Salmon Appellate Body Report, Australia – Measures Affecting Importation of Salmon, WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, p. 3327
Australia – Salmon (Article 21.5 – Canada) Panel Report, Australia – Measures Affecting Importation of Salmon – Recourse to Article 21.5 of the DSU by Canada, WT/DS18/RW, adopted 20 March 2000, DSR 2000:IV, p. 2031
Brazil – Desiccated Coconut Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut, WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, p. 167
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
Brazil – Retreaded Tyres Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/R, adopted 17 December 2007, as modified by Appellate Body Report WT/DS332/AB/R, DSR 2007:V, p. 1649
Canada – Renewable Energy / Canada – Feed-in Tariff Program Panel Reports, Canada – Certain Measures Affecting the Renewable Energy Generation Sector / Canada – Measures Relating to the Feed-in Tariff Program, WT/DS412/R and Add.1 / WT/DS426/R and Add.1, adopted 24 May 2013, as modified by Appellate Body Reports WT/DS412/AB/R / WT/DS426/AB/R, DSR 2013:I, p. 237
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 Panel Report, Chile – Price Band System and Safeguard Measures Relating to Certain Agricultural Products, WT/DS207/R, adopted 23 October 2002, as modified by Appellate Body Report WT/DS207AB/R, DSR 2002:VIII, p. 3127
China – Electronic Payment Services Panel Report, China – Certain Measures Affecting Electronic Payment Services, WT/DS413/R and Add.1, adopted 31 August 2012, DSR 2012:X, p. 5305
China – HP-SSST (Japan) / China – HP-SSST (EU) Appellate Body Reports, China – Measures Imposing Anti-Dumping Duties on High-Performance Stainless Steel Seamless Tubes ("HP-SSST") from Japan / China – Measures Imposing Anti-Dumping Duties on High-Performance Stainless Steel Seamless Tubes ("HP-SSST") from the European Union, WT/DS454/AB/R and Add.1 / WT/DS460/AB/R and Add.1, adopted 28 October 2015
China – Intellectual Property Rights Panel Report, China – Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WT/DS362/R, adopted 20 March 2009, DSR 2009:V, p. 2097
China – Publications and Audiovisual Products Appellate Body Report, China –Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/AB/R, adopted 19 January 2010, DSR 2010:I, p. 3
China – Rare Earths Panel Reports, China – Measures Related to the Exportation of Rare Earths, Tungsten, and Molybdenum, WT/DS431/R and Add.1 / WT/DS432/R and Add.1 / WT/DS433/R and Add.1, adopted 29 August 2014, upheld by Appellate Body Reports WT/DS431/AB/R / WT/DS432/AB/R / WT/DS433/AB/R, DSR 2014:IV, p. 1127
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
China – Raw Materials Panel Reports, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R, Add.1 and Corr.1 / WT/DS395/R, Add.1 and Corr.1 / WT/DS398/R, Add.1 and Corr.1, adopted 22 February 2012, as modified by Appellate Body Reports WT/DS394/AB/R / WT/DS395/AB/R / WT/DS398/AB/R, DSR 2012:VII, p. 3501
Colombia – Ports of Entry Panel Report, Colombia – Indicative Prices and Restrictions on Ports of Entry, WT/DS366/R and Corr.1, adopted 20 May 2009, DSR 2009:VI, p. 2535
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
Dominican Republic – Import and Sale of Cigarettes Panel Report, Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes, WT/DS302/R, adopted 19 May 2005, as modified by Appellate Body Report WT/DS302/AB/R, DSR 2005:XV, p. 7425
EC – Approval and Marketing of Biotech Products Panel Reports, European Communities – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, Add.1 to Add.9 and Corr.1 / WT/DS292/R, Add.1 to Add.9 and Corr.1 / WT/DS293/R, Add.1 to Add.9 and Corr.1, adopted 21 November 2006, DSR 2006:III, p. 847
EC – Asbestos Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, adopted 5 April 2001, DSR 2001:VII, p. 3243
EC – Asbestos Panel Report, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/R and Add.1, adopted 5 April 2001, as modified by Appellate Body Report WT/DS135/AB/R, DSR 2001:VIII, p. 3305
EC and certain member States – Large Civil Aircraft Appellate Body Report, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, adopted 1 June 2011, DSR 2011:I, p. 7
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 – Chicken Cuts Appellate Body Report, EuropeanCommunities – Customs Classification of Frozen Boneless Chicken Cuts, WT/DS269/AB/R, WT/DS286/AB/R, adopted 27 September 2005, and Corr.1, DSR 2005:XIX, p. 9157
EC – Commercial Vessels Panel Report, European Communities – Measures Affecting Trade in Commercial Vessels, WT/DS301/R, adopted 20 June 2005, DSR 2005:XV, p. 7713
EC – Computer Equipment Appellate Body Report, European Communities – Customs Classification of Certain Computer Equipment, WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R, adopted 22 June 1998, DSR 1998:V, p. 1851
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 – Export Subsidies on Sugar (Australia) Panel Report, European Communities – Export Subsidies on Sugar, Complaint by Australia, WT/DS265/R, adopted 19 May 2005, as modified by Appellate Body Report WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, DSR 2005:XIII, p. 6499
EC – Export Subsidies on Sugar (Brazil) Panel Report, European Communities – Export Subsidies on Sugar, Complaint by Brazil, WT/DS266/R, adopted 19 May 2005, as modified by Appellate Body Report WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, DSR 2005:XIV, p. 6793
EC – Export Subsidies on Sugar (Thailand) Panel Report, European Communities – Export Subsidies on Sugar, Complaint by Thailand, WT/DS283/R, adopted 19 May 2005, as modified by Appellate Body Report WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, DSR 2005:XIV, p. 7071
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 – 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 – IT Products Panel Reports, European Communities and its member States – Tariff Treatment of Certain Information Technology Products, WT/DS375/R / WT/DS376/R / WT/DS377/R, adopted 21 September 2010, DSR 2010:III, p. 933
EC – Sardines Panel Report, European Communities – Trade Description of Sardines, WT/DS231/R and Corr.1, adopted 23 October 2002, as modified by Appellate Body Report WT/DS231/AB/R, DSR 2002:VIII, p. 3451
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
EC – Selected Customs Matters Appellate Body Report, European Communities – Selected Customs Matters, WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, p. 3791
EC – Tariff Preferences Appellate Body Report, European Communities – Conditions for the Granting of Tariff Preferences to Developing Countries, WT/DS246/AB/R, adopted 20 April 2004, DSR 2004:III, p. 925
EU – Biodiesel (Argentina) Appellate Body Report, European Union – Anti-Dumping Measures on Biodiesel from Argentina, WT/DS473/AB/R and Add.1, adopted 26 October 2016
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
India – Solar Cells Appellate Body Report, India – Certain Measures Relating to Solar Cells and Solar Modules, WT/DS456/AB/R and Add.1, adopted 14 October 2016
Indonesia – Autos Panel Report, Indonesia – Certain Measures Affecting the Automobile Industry, WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R, Corr.1 and Corr.2, adopted 23 July 1998, and Corr.3 and Corr.4, DSR 1998:VI, p. 2201
Indonesia – Import Licensing Regimes Panel Report, Indonesia – Importation of Horticultural Products, Animals and Animal Products, WT/DS477/R, WT/DS478/R, Add.1 and Corr.1, circulated to WTO Members 22 December 2016 [appealed; adoption pending]
Japan – Alcoholic Beverages II Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, p. 97
Korea – Alcoholic Beverages Panel Report, Korea – Taxes on Alcoholic Beverages, WT/DS75/R, WT/DS84/R, adopted 17 February 1999, as modified by Appellate Body Report WT/DS75/AB/R, WT/DS84/AB/R, DSR 1999:I, p. 44
Japan – Apples Appellate Body Report, Japan – Measures Affecting the Importation of Apples, WT/DS245/AB/R, adopted 10 December 2003, DSR 2003:IX, p. 4391
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of Certain Dairy Products, WT/DS98/AB/R, adopted 12 January 2000, DSR 2000:I, p. 3
Korea – Various Measures on Beef Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 2001, DSR 2001:I, p. 5
Mexico – Corn Syrup (Article 21.5 – US) Appellate Body Report, Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States – Recourse to Article 21.5 of the DSUby the United States, WT/DS132/AB/RW, adopted 21 November 2001, DSR 2001:XIII, p. 6675
Mexico – Taxes on Soft Drinks Panel Report, Mexico – Tax Measures on Soft Drinks and Other Beverages, WT/DS308/R, adopted 24 March 2006, as modified by Appellate Body Report WT/DS308/AB/R, DSR 2006:I, p. 43
Peru – Agricultural Products Panel Report, Peru – Additional Duty on Imports of Certain Agricultural Products, WT/DS457/R and Add.1, adopted 31 July 2015, as modified by Appellate Body Report WT/DS457/AB/R
Philippines – Distilled Spirits Appellate Body Reports, Philippines – Taxes on Distilled Spirits, WT/DS396/AB/R / WT/DS403/AB/R, adopted 20 January 2012, DSR 2012:VIII, p. 4163
Russia – Pigs (EU) Panel Report, Russian Federation – Measures on the Importation of Live Pigs, Pork and Other Pig Products from the European Union, WT/DS475/R and Add.1, adopted 21 March 2017, as modified by Appellate Body Report WT/DS475/AB/R
Russia – Tariff Treatment Panel Report, Russia – Tariff Treatment of Certain Agricultural and Manufacturing Products, WT/DS485/R, Corr.1, Corr.2, and Add.1, adopted 26 September 2016
Thailand – H-Beams Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from Poland, WT/DS122/AB/R, adopted 5 April 2001, DSR 2001:VII, p. 2701
Turkey – Rice Panel Report, Turkey – Measures Affecting the Importation of Rice, WT/DS334/R, adopted 22 October 2007, DSR 2007:VI, p. 2151
US – Animals Panel Report, United States – Measures Affecting the Importation of Animals, Meat and Other Animal Products from Argentina, WT/DS447/R and Add.1, adopted 31 August 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 – Carbon Steel Appellate Body Report, United States – Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat Products from Germany, WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, p. 3779
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 – Clove Cigarettes Panel Report, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/R, adopted 24 April 2012, as modified by Appellate Body Report WT/DS406/AB/R, DSR 2012: XI, p. 5865
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and Application of Zeroing Methodology, WT/DS350/AB/R, adopted 19 February 2009, DSR 2009:III, p. 1291
US – COOL Panel Reports, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/R / WT/DS386/R, adopted 23 July 2012, as modified by Appellate Body Reports WT/DS384/AB/R / WT/DS386/AB/R, DSR 2012:VI, p. 2745
US – Countervailing and Anti-Dumping Measures (China) Appellate Body Report, United States – Countervailing and Anti-Dumping Measures on Certain Products from China, WT/DS449/AB/R and Corr.1, adopted 22 July 2014, DSR 2014:VIII, p. 3027
US – FSC Panel Report, United States – Tax Treatment for "Foreign Sales Corporations", WT/DS108/R, adopted 20 March 2000, as modified by Appellate Body Report WT/DS108/AB/R, DSR 2000:IV, p. 1675
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 – 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 – Oil Country Tubular Goods Sunset Reviews Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina, WT/DS268/AB/R, adopted 17 December 2004, DSR 2004:VII, p. 3257
US – Poultry (China) Panel Report, United States – Certain Measures Affecting Imports of Poultry from China, WT/DS392/R, adopted 25 October 2010, DSR 2010:V, p. 1909
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 – Section 301 Trade Act Panel Report, United States – Sections 301-310 of the Trade Act of 1974, WT/DS152/R, adopted 27 January 2000, DSR 2000:II, p. 815
US – Shrimp (Thailand) Panel Report, United States – Measures Relating to Shrimp from Thailand, WT/DS343/R, adopted 1 August 2008, as modified by Appellate Body Report WT/DS343/AB/R / WT/DS345/AB/R, DSR 2008:VII, p. 2539
US – Tuna II (Mexico) (Article 21.5 – Mexico) Appellate Body Report, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products – Recourse to Article 21.5 of the DSU by Mexico, WT/DS381/AB/RW and Add.1, adopted 3 December 2015
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 – 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
US – Wool Shirts and Blouses Panel Report, United States – Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/R, adopted 23 May 1997, upheld by Appellate Body Report WT/DS33/AB/R, DSR 1997:I, p. 343
US – Corrosion-Resistant Steel Sunset Review Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan, WT/DS244/AB/R, adopted 9 January 2004, DSR 2004:I, p. 3
US – Zeroing (EC) Appellate Body Report, United States – Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing"), WT/DS294/AB/R, adopted 9 May 2006, and Corr.1, DSR 2006:II, p. 417
US – Zeroing (Japan) (Article 21.5 – Japan) Appellate Body Report, United States – Measures Relating to Zeroing and Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan, WT/DS322/AB/RW, adopted 31 August 2009, DSR 2009:VIII, p. 3441
Thailand – Cigarettes (Philippines) Appellate Body Report, Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines, WT/DS371/AB/R, adopted 15 July 2011, DSR 2011:IV, p. 2203
Thailand – Cigarettes (Philippines) Panel Report, Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines, WT/DS371/R, adopted 15 July 2011, as modified by Appellate Body Report WT/DS371/AB/R, DSR 2011:IV, p. 2299

ABBREVIATIONS

AbbreviationDescription
Animal Law Law 18/2009
API Importer Identification Number
BPJPH Halal Product Organizing Agency
CCA Consultative Committee on agriculture
Consumer Law Law 8/1999
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes
Food Law Law 18/2012 of Indonesia
GATT 1994 General Agreement on Tariffs and Trade 1994
Halal Law Law 33/2014
LPH Halal examination agencies
Import Licensing Agreement Agreement on Import Licensing Procedures
MoA Minister of Agriculture or Ministry of Agriculture
MoA Regulation Regulation of the Minister of Agriculture or Regulation of the Ministry of Agriculture
MoT Minister of Trade or Ministry of Trade
MoT Regulation Regulation of the Minister of Trade or Regulation of the Ministry of Trade
MUI Indonesian Ulama Council
OECD Organisation for Economic Co-operation and Development
OIE World Organisation for Animal Health
SPS Agreement Agreement on the Application of Sanitary and Phytosanitary Measures
TBT Agreement Agreement on Technical Barriers to Trade
WTO World Trade Organization

1 INTRODUCTION

1.1 COMPLAINT BY BRAZIL

1.1.
On 16 October 2014, Brazil requested consultations with Indonesia pursuant to Articles 1 and 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), Article XXII of the General Agreement on Tariffs and Trade 1994 (GATT 1994), Article 11 of the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), Article 6 of the Agreement on Import Licensing Procedures (Import Licensing Agreement), Article 14 of the Agreement on Technical Barriers to Trade (TBT Agreement), Article 19 of the Agreement on Agriculture, and Article 8 of the Agreement on Preshipment Inspection with respect to the measures and claims set out below.1
1.2.
Consultations were held on 15 and 16 December 2014. These consultations failed to resolve the dispute.

1.2 PANEL ESTABLISHMENT AND COMPOSITION

1.3.
On 15 October 2015, Brazil requested the establishment of a panel pursuant to Article 6 of the DSU with standard terms of reference.2 At its meeting on 3 December 2015, the Dispute Settlement Body (DSB) established a panel pursuant to the request by Brazil in documents WT/DS484/8 and WT/DS484/8/Corr.1, in accordance with Article 6 of the DSU.3
1.4.
The Panel's terms of reference are the following:

To examine, in the light of the relevant provisions of the covered agreements cited by the parties to the dispute, the matter referred to the DSB by Brazil in documents WT/DS484/8 and WT/DS484/8/Corr.1, and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements.4

1.5.
Argentina, Australia, Canada, Chile, China, the European Union, India, Japan, the Republic of Korea, New Zealand, Norway, Paraguay, the Russian Federation, the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu (Chinese Taipei), Thailand, the United States, and Viet Nam notified their interest in participating in the Panel proceedings as third parties.
1.6.
On 22 February 2016, Brazil requested the Director-General to determine the composition of the panel, pursuant to Article 8.7 of the DSU. On 3 March 2016, the Director-General accordingly composed the Panel as follows:

Chairperson: Mr Mohammad Saeed

Members: Mr Sufyan Al-Irhayim

Ms Claudia Orozco

1.7.
On 28 April 2016 and 23 May 2016, Oman and Qatar respectively requested to join as third parties. On 25 May 2016, the Panel consulted with the parties. Brazil took the view that neither request should be accepted. Indonesia had no objections to the requests. On 3 June 2016, the Panel informed Oman, Qatar, and the parties of its decision to accept the requests. On 6 June 2016, the Panel informed the other third parties of its decision to accept the requests. The Panel's ruling on the requests is set out in section 7.1.1 below.

1.3 PANEL PROCEEDINGS

1.3.1 General

1.8.
On 16 March 2016, after consulting with the parties, the Panel adopted its Working Procedures5 and timetable.
1.9.
On 22 April 2016 and 10 June 2016, Brazil and Indonesia respectively submitted their first written submissions.
1.10.
On 13 and 15 July 2016, the Panel held its first substantive meeting with the parties. A session with the third parties took place on 14 July 2016. Following the meeting, on 19 July 2016, the Panel sent written questions to the parties and third parties. On the same date, the parties sent written questions to each other. The Panel received the responses to questions on 2 August 2016.
1.11.
On 2 September 2016, Brazil and Indonesia submitted their second written submissions.
1.12.
On 11 and 12 October 2016, the Panel held a second substantive meeting with the parties. Following the meeting, on 21 October 2016, the Panel sent written questions to the parties. The Panel received the responses to those questions on 4 November 2016. The Panel gave the parties an opportunity to comment on each other's responses. The Panel received the comments on 18 November 2016.
1.13.
On 15 December 2016, the Panel issued the descriptive part of its Report to the parties. The Panel issued its Interim Report to the parties on 15 March 2017. The Panel issued its Final Report to the parties on 10 May 2017.

1.3.2 Preliminary ruling

1.14.
On 10 June 2016, together with its first written submission, Indonesia presented a request for a preliminary ruling concerning certain alleged defects in the panel request and certain inconsistencies between the scope of the panel request and Brazil's first written submission.
1.15.
On 13 June 2016, the Panel invited Brazil to comment on Indonesia's preliminary ruling request. On the same date, the Panel also invited the third parties to comment on Indonesia's preliminary ruling request and to file those comments together with their third-party submissions.
1.16.
On 17 June 2016, the United States, as a third party, provided its views. No other third party provided comments. On 27 June 2016, the Panel received comments from Brazil.
1.17.
On 13 and 15 July 2016, in the course of the first meeting with the parties, the Panel posed questions to both parties in connection with Indonesia's request for a preliminary ruling.
1.18.
On 19 July 2016, the Panel informed the parties of its conclusions with respect to Indonesia's preliminary ruling request. On 27 July 2016, the Panel informed the third parties of its conclusions. The Panel's conclusions as well as the reasoning supporting those conclusions are set out in section 7.1.2 below.

2 FACTUAL ASPECTS

2.1 THE MEASURES AT ISSUE

2.1.
This dispute concerns measures imposed by Indonesia on imports of certain chicken meat and chicken products from Brazil.6
2.2.
Brazil makes claims against two categories of measures: (i) an alleged general prohibition on the importation of chicken meat and chicken products; and (ii) specific restrictions and prohibitions on the importation of chicken meat and chicken products.

2.1.1 Alleged general prohibition

2.3.
In its panel request, Brazil describes the alleged general prohibition as follows:

Indonesia imposes several prohibitions or restrictions on the importation of chicken meat and chicken products which, combined, have the effect of a general prohibition on the importation of these products, as follows:

a. Indonesia does not allow the importation of animal and animal products not listed in the appendices of the relevant regulations7. With regard to chicken, the list only contemplates HS codes referred to as whole chicken, fresh or chilled and frozen8. The HS codes for chicken meat cut into pieces9 are not described in any of the "positive lists" which contain the products that can be imported into Indonesia's territory;10

b. Domestic food production (including "staple food"11, which encompasses chicken meat and chicken products) and national food reserve are prioritized over food import, which is only authorized as an exception, when domestic food supply in Indonesia is not considered "sufficient" by the government;12

c. Imports of essential and strategic goods may be prohibited and/or restricted and prices may be controlled by the Indonesian government.13 Thus, import and export operations may be postponed by the Minister of Trade during a force majeure event. As chicken meat and chicken products fit into the categories of essential and strategic goods14, even if they were allowed to enter into Indonesia, their effective importation would be subject to the discretion of the Minister of Trade;

d. The Indonesian government limits the importation of chicken meat and chicken products to certain intended uses. The importation of chicken meat and chicken products shall only be allowed to meet the needs of "hotel, restaurant, catering, manufacturing, other special needs, and modern market";15

e. Indonesia has unduly refused to examine and approve the Health Certificates for poultry products (including chicken meat and chicken products) proposed by Brazil since 2009;

f. Indonesia imposes prohibitions and/or restrictions to importation through its Import Licensing Regime.16 In order to import chicken meat and chicken products, importers must obtain import licenses after several approval and overlapping authorization stages, covered by different regulations and authorities; and

g. Indonesia establishes an import prohibition through different regulations regarding halal slaughtering and labelling requirements for imported chicken meat and chicken products.17,18

2.4.
In its subsequent submissions, Brazil did not make reference to the last element, identified above, in its description of the alleged general prohibition. Reference to this last element was made, however, when discussing specific restrictions and prohibitions applied by Indonesia to its imports of chicken meat and chicken products. This is discussed in section 7.8 below.

2.1.2 Specific restrictions and prohibitions

2.5.
In addition to the alleged general prohibition on the importation of chicken meat and chicken products, Brazil also challenges a number of individual measures. Four of those individual measures, albeit described in slightly different terms in their own section of the panel request, correspond to items (a), (d), (e), and (f) of the previous section. They pertain respectively to (i) the non-inclusion of certain chicken products in the list of products that may be imported; (ii) the limitation of imports of chicken meat and chicken products to certain intended uses; (iii) Indonesia's alleged undue delay in the approval of health certificates for chicken products; and (iv) Indonesia's import licensing regime.
2.6.
In addition, Brazil challenges two more individual measures:

a. Surveillance and implementation of halal slaughtering and labelling requirements for imported chicken meat and chicken products established by different Indonesian regulations, which are much stricter than the surveillance and the implementation of halal requirements applied to the domestic production in Indonesia19; and

b. Restrictions on the transportation of imported products by requiring direct transportation from the country of origin to the entry points in Indonesia.20

2.7.
Brazil's panel request identifies a further two individual measures. However, Brazil has not developed claims in its subsequent submissions in respect of these measures.21

2.2 OTHER FACTUAL ASPECTS

2.8.
During the proceedings, certain legal instruments underlying a number of the measures at issue were either revoked or revoked and replaced. Table 1 below indicates the two legal instruments that are central to this dispute, as identified by Brazil in its panel request, and the corresponding legal instruments that revoked and replaced them, as indicated by the parties in their respective submissions.22

Table 1 Amendments and revisions in the relevant legal instruments

Panel request23("first set of legal instruments")First written submission24("second set of legal instruments")Second25 written submission ("third set of legal instruments")
· MoA 139/2014 of 23 December 201426 · MoT 46/2013 of 30 August 201327 · MoA 58/2015 of 25 November 201528 · MoT 05/2016 of 28 January 201629 · MoA 34/2016 of 15 July 201630 · MoT 59/2016 of 15 August 201631

2.9.
The Panel discusses its approach with regard to the changes in the different sets of legal instruments in section 7.2.4 below.

3 PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS

3.1.
Brazil requests the Panel to find that:

a. Indonesia's general prohibition on the importation of chicken meat and chicken products is inconsistent with Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture;

b. Indonesia's prohibition on the importation of chicken cuts and other prepared or preserved chicken meat is inconsistent with Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture;

c. Indonesia's restrictions on the use of imported chicken meat and chicken products is inconsistent with Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture;

d. Indonesia's restrictive import licensing procedures is inconsistent with Article XI:1 of the GATT 1994, Article 4.2 of the Agreement on Agriculture, and Article 3.2 of the Agreement on Import Licensing Procedures;

e. Indonesia's restrictive transportation requirements for imported chicken meat and chicken products is inconsistent with Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture;

f. Indonesia's restrictions on the use of imported chicken meat and chicken products is inconsistent with Article III:4 of the GATT 1994;

g. Indonesia's surveillance and implementation of halal labelling requirements is inconsistent with Article III:4 of the GATT 1994; and

h. Indonesia's undue delay with regard to the approval of sanitary requirements is inconsistent with Article 8 and Annex C of the SPS Agreement.32

3.2.
Indonesia requests that the Panel reject Brazil's' claims in this dispute in their entirety.33

4 ARGUMENTS OF THE PARTIES

4.1.
The arguments of the parties are reflected in their executive summaries, provided to the Panel in accordance with paragraph 21 of the Working Procedures adopted by the Panel (see Annexes B-1 and B-2).

5 ARGUMENTS OF THE THIRD PARTIES

5.1.
The arguments of Argentina, Australia, Canada, the European Union, Japan, New Zealand, Norway, Paraguay, Qatar, and the United States are reflected in their executive summaries, provided in accordance with paragraph 22 of the Working Procedures adopted by the Panel (see Annexes C-1, C-2, C-3, C-4, C-5. C-6, C-7, C-8, C-9, and C-10). Chile, China, India, the Republic of Korea, Oman, the Russian Federation, Chinese Taipei, Thailand, and Viet Nam did not submit written or oral arguments to the Panel.

6 INTERIM REVIEW

6.1 INTRODUCTION

6.1.
On 15 March 2017, the Panel issued its Interim Report to the parties. On 29 March 2017, Brazil and Indonesia submitted written requests for the Panel to review aspects of the Interim Report. On 12 April 2017, the parties submitted comments on each other's request for review. Neither party requested an interim review meeting.
6.2.
In accordance with Article 15.3 of the DSU, this section of the Report sets out our response to the parties' requests for review of precise aspects of the Report made at the interim review stage. We discuss the parties' requests for substantive modifications below, in sequential order. In addition to the substantive requests discussed below, we have made editorial and drafting improvements to the Report, including, where relevant, those suggested by the parties.
6.3.
The numbering of some of the paragraphs and the footnotes in the Report has changed from that in the Interim Report. The discussion below refers to the numbering in the Interim Report, and where it differs, the corresponding numbering in the Report is included.

6.2 PRELIMINARY RULING: WHETHER THE ALLEGED GENERAL PROHIBITION IS WITHIN THE PANEL'S TERMS OF REFERENCE

6.4.
Regarding paragraph 7.33, Indonesia notes that Brazil's panel request does not mention the word "unwritten" and thus requests the Panel to reconcile its description of the measure at issue with that provided in Brazil's panel request. Brazil disagrees with Indonesia and considers that the wording of paragraph 7.33 is adequate. Brazil suggests an alternative wording should the Panel decide to amend this paragraph.
6.5.
We see no need to amend this paragraph as suggested by Indonesia. We are cognizant of the fact that Brazil's panel request does not include the term "unwritten" in its description of the alleged general prohibition. However, we read that description to be referring to an unwritten measure and find confirmation for this in Brazil's submissions. This paragraph of the Interim Report reflects our conclusion, which is based on our understanding of Brazil's panel request.

6.3 ORDER OF ANALYSIS: WHETHER ARTICLE XI OF THE GATT 1994 AND ARTICLE 4.2 OF THE AGREEMENT ON AGRICULTURE ARE MUTUALLY EXCLUSIVE

6.6.
Regarding paragraph 7.73, Indonesia requests the Panel to delete its reference to "the exceptions set out" when referring to Article XI:2 of the GATT 1994, because Indonesia considers that this reference could lead to confusion about the nature of that provision. Brazil does not comment on Indonesia's request.
6.7.
We accept Indonesia's suggestion, because we agree with Indonesia that the expression "the exceptions set out" may lead to confusion.

6.4 INDIVIDUAL MEASURE 1: POSITIVE LIST REQUIREMENT

6.8.
Brazil requests the Panel to complement the first sentence of paragraph 7,149 to reflect more accurately Brazil's suggestion of an alternative less-trade restrictive measure. Indonesia does not comment on Brazil's request.
6.9.
We see no need to amend this paragraph as suggested by Brazil. The language that Brazil requests us to add is not included in the relevant sections of Brazil's submissions referred to in the relevant footnote to this paragraph of the Interim Report. Moreover, in our view, the context provided by the preceding paragraphs makes this addition unnecessary.
6.10.
Regarding paragraph 7,152, Brazil requests the Panel to complement this paragraph to clarify that certification does not apply to products whose importation is prohibited by virtue of the positive list requirement. Indonesia does not comment on Brazil's request.
6.11.
We see no need to amend this paragraph as suggested by Brazil. Brazil is requesting us to complement this sentence with an argument developed in the subsequent paragraph of the Interim Report.34 In our view, this addition would disrupt the manner in which we present the question before us.

6.5 INDIVIDUAL MEASURE 2: INTENDED USE REQUIREMENT

6.12.
Regarding paragraph 7,207, Brazil considers that the Interim Report mischaracterizes its argument and requests the Panel to quote directly Brazil's submissions stating that "from a public health perspective, frozen chicken is much safer than fresh chicken because freezing is considered to be a preservation method that inhibits microbial growth and delays metabolic activities". Indonesia requests the Panel not to accept Brazil's proposed change. Indonesia considers that Brazil's argument does not address Indonesia's primary concern, and that it is therefore irrelevant.
6.13.
We made changes to paragraph 7,207 to better summarize Brazil's argument. However, we did not include the requested quote as we consider that Brazil's argument is described in more detail in paragraph 7,211 which also reflects the above statement made by Brazil.35 Furthermore, we slightly shortened the description of Indonesia's argument because we consider that that argument is already described in more detail in paragraph 7,210.36
6.14.
Brazil requests the Panel to rephrase Indonesia's argument in paragraph 7,210, submitting that the wording does not adequately reflect the evidence presented by Indonesia, which concerns re-freezing alone. Indonesia considers that Brazil's suggestions are without merit and should not be accepted. Indonesia argues that the evidence is on point with respect to both the thawing and the re-freezing argument it made. Indonesia also refers to additional evidence that it considers to be on point a reference to which it suggests should be included in paragraph 7,210.
6.15.
We made changes to paragraph 7,210 to better reflect Indonesia's argument and the evidence it has submitted. However, we disagree with Brazil's specific suggestion for the following reasons. First, we disagree with Brazil's contention that Indonesia's argument is only about re-freezing. While Indonesia's first written submission may have put more emphasis on the issue of re-freezing, its subsequent submissions clearly focus on the issue of improper thawing (prior to re-freezing).37 Brazil's specific suggestion would therefore be an inaccurate account of Indonesia's arguments. Second, there is a difference between an argument a party makes and the evidence it submits. Even in a case where a party's argument is not substantiated by evidence, it would be erroneous for a panel to indicate that such argument was not made by the party.38 Paragraph 7,210 of the Interim Report first describes Indonesia's argument and then lists the evidence submitted by Indonesia. (As requested by Indonesia, we have reflected in that paragraph in a more comprehensive manner the relevant evidence submitted by Indonesia.) Paragraph 7,213 is the Panel's assessment of the relevant evidence including those that Brazil itself has submitted. We discuss the parties' comments regarding that assessment below.
6.16.
Regarding paragraphs 7,213, 7,214 and 7,215 Brazil essentially disagrees with the Panel's assessment of Brazil's evidence and requests the Panel to revisit that assessment. Brazil takes the view that a higher degree of reliability should have been given to the Ingham et al. research note submitted by Brazil compared to Indonesia's evidence consisting of governmental guidelines and instructions. In support of its argument Brazil refers to the Appellate Body's jurisprudence in EC – Hormones regarding divergent opinions. Indonesia considers that Brazil's request is without merit. Indonesia (here and in its comments on paragraph 7,210) offers its own views on how to assess the evidence. Furthermore, Indonesia considers Brazil's reference to EC – Hormones to be misplaced.
6.17.
We made some changes to paragraphs 7,213 and 7,214 to clarify our reasoning in light of the parties' comments. However, we reject Brazil's request for the following reasons. First, our finding that Indonesia's argument on the existence of a health risk is supported by evidence, is based on a review of all the evidence taken together, including, importantly, the evidence submitted by Brazil itself.39 Brazil is correct in pointing out that exhibit IDN-56 is not directly on point, as we state in paragraph 7,213. We added a similar comment in paragraph 7,213 regarding exhibit IDN-64. However, while it is true that Indonesia has not submitted scientific papers that directly demonstrate the risk it refers to, it has nevertheless submitted evidence that refers to the existence of such a risk, including expert advice from a governmental source. That evidence is corroborated by Brazil's own scientific evidence. We consider that for purposes of proving the alleged risk under Article XX(b) of the GATT 1994, this evidence, taken together, is sufficient to support Indonesia's defence.40 Furthermore, we are of the view, similar to Indonesia, that Brazil's reading of EC – Hormones is misplaced. We read this jurisprudence to suggest that a Member may base its measure on scientifically sound evidence, regardless of whether that evidence represents a mainstream scientific view or a divergent/minority view. Contrary to what Brazil implies, that jurisprudence in casu favours Indonesia, not Brazil, as it is Indonesia's measure that is at issue, not Brazil's. Thus, the Ingham et al. research note, even if scientifically sound, cannot "nullify" (to use Brazil's words) the mainstream view that Indonesia relies on.
6.18.
Brazil requests us to move the content of footnote 343 into the main text, in a new paragraph, right after paragraph 7,226.Indonesia does not comment on Brazil's request.
6.19.
We reject Brazil's request as we consider that the issue discussed in footnote 343 was not sufficiently developed to properly fit in the necessity analysis. Inserting the text in the place indicated by Brazil would, in our view, disrupt the flow of the analysis, thereby potentially confusing the reader. We note that Brazil's right to take issue with what we state is not impacted by the placement of that statement either in a footnote or in the main text.
6.20.
Brazil takes issue with, and, therefore proposes to delete, language in paragraph 7,230 suggesting that Brazil did not elaborate on the less trade restrictive alternative measures that it proposed. Indonesia considers that Brazil's request is without merit, because Brazil has failed to develop its proposed less trade restrictive alternative measures. Therefore, Indonesia requests the Panel not to accept Brazil's suggestion and to retain the original wording in paragraph 7,230.
6.21.
We made the changes proposed by Brazil, but also deleted additional language from paragraph 7,230. We note that the paragraph in question contains a description of Brazil's arguments, whereas subsequent paragraphs contain our analysis of these arguments. Our view that Brazil has not sufficiently described the alternative measures it proposed is set out in those paragraphs. To delete the corresponding language from paragraph 7,230, therefore, does not change or affect the assessment we made. We noted, however, that the description in paragraph 7,230 was inaccurate in that it referred to an argument that Brazil specifically made in the context of Article XX(d) rather than under Article XX(b). We have, therefore, deleted that argument.
6.22.
Brazil requests specific changes to paragraph 7,235 which reflect its disagreement with the Panel's understanding that Indonesia's primary concern is the thawing of frozen chicken in tropical temperatures. Indonesia requests the Panel not to accept Brazil's suggestion, because in its view, Indonesia's arguments and evidence address more than the re-freezing of thawed meat alone.
6.23.
We reject Brazil's request as we see no reason to change our understanding, as discussed above, that Indonesia's primary concern is the thawing of frozen chicken at tropical temperatures.41
6.24.
Brazil's request in respect of paragraphs 7,236 and 7,237 is twofold. First, Brazil, referring to its previous comments regarding its arguments on less trade restrictive alternative measures, requests that the first sentence of paragraph 7,236 be deleted. Second Brazil requests that the Panel "revisit" this section of the report in respect of the cold storage requirement to better reflect Brazil's argument. Brazil submits that "contrary to what the Panel suggested, [it] never argued that [the cold storage] requirement would not be a less trade restrictive alternative to the intended use requirement". Furthermore Brazil states that "it was clear from the discussions and the evidence on the record that having or not a cold storage facility was not an issue behind the intended use restriction". Finally, Brazil submits that "the reference to cold storage in relation to the intended use requirement was only introduced after the first meeting with the Panel, when Brazil had already submitted its arguments…." Indonesia requests the Panel not to accept Brazil's suggestion, because in its view it is without merit. In particular, Indonesia considers that Brazil's assertion that the cold storage requirement was not related to the intended use requirement is incorrect. Indonesia further considers that it referred to the cold storage as part of the intended use requirement in its first written submission. Indonesia further refers to its comments to paragraph 7,230-7.239, regarding the less trade restrictive alternative measures proposed by Brazil.
6.25.
We reject Brazil's request for the following reasons. First, we see no reason to change the first sentence in paragraph 7,236, which contains the conclusion of our analysis of the less trade restrictive measures proposed by Brazil; which, as seen above, we found unnecessary to modify. Second, as regards the cold storage requirement, we cannot find in Brazil's submissions that Brazil considered the cold storage requirement a less trade restrictive alternative. Brazil may, as it claims, never have argued that the cold storage requirement would not be a less trade restrictive alternative to the intended use requirement; however, it also never argued that it would be. At the same time, contrary to what Brazil contends, the need for cold storage was referred to by Indonesia as early as in its first written submission.42 Brazil, thus, could have picked up on Indonesia's argument and pointed to cold storage as a less trade-restrictive alternative, but chose not to do so. To better reflect our understanding of Brazil's arguments, we have slightly modified paragraph 7,236.
6.26.
Indonesia requests the Panel to delete the last two sentences of paragraph 7,238. Indonesia takes the view that there is a contradiction between rejecting Brazil's proposed measure of "rules regulating the thawing of frozen chicken" and referring back to these same rules as possibly encompassing a cold storage requirement. Brazil disagrees with this request and submits that it never argued that the cold storage requirement would not be a less trade restrictive alternative to the intended use requirement. Moreover, Brazil reiterates that it did not understand the concern with proper storage to be related to the intended use requirement.
6.27.
We accept Indonesia's request and have, therefore, deleted the last two sentences of paragraph 7,238. We acknowledge that the prohibition to let frozen chicken meat thaw, which is implied in a cold storage requirement, may be considered the exact opposite of a rule on thawing, in which case, it would be contradictory to consider that rules on proper thawing could encompass a cold storage requirement.
6.28.
Brazil requests the Panel to modify paragraph 7,256 to better reflect Brazil's argument regarding consumer information as a less trade-restrictive alternative and to better explain why the Panel considered that it is not a less trade restrictive alternative. Indonesia requests the Panel not to accept Brazil's suggestion, which it considers to be without merit. Indonesia further considers that Brazil's "alternative" does not address Indonesia's objective of protecting consumers from deceptive practices.
6.29.
We accept Brazil's request and have made the relevant changes.
6.30.
Brazil requests changes to paragraph 7,313. The suggested changes reflect its disagreement with the Panel's understanding that Indonesia's primary concern is the thawing of frozen chicken in tropical temperatures rather than re-freezing. Indonesia requests the Panel not to accept Brazil's suggestion, stressing that Indonesia's arguments and evidence address both re-freezing and thawing of meat.
6.31.
We reject Brazil's request, because, as already indicated in paragraphs 6.15 and 6.23, we see no reason to change our understanding that Indonesia's primary concern is the thawing of frozen chicken at tropical temperatures.
6.32.
Brazil proposes specific changes to paragraph 7,317 and also requests the Panel to make further changes as appropriate. More specifically, Brazil considers that it provided enough evidence to support that thawed chicken is safer than fresh chicken left on display outside. Brazil thus suggests specific changes to reflect this view. Furthermore, Brazil requests the Panel to explain why it considered that the evidence before it leads to find that there are differences in health risks arising from previously frozen thawing chicken and fresh chicken that could justify differences in treatment. Indonesia requests the Panel not to accept Brazil's request which in its view, is without merit. In particular, Indonesia considers that it has not disputed that freezing is used as a hazard-based control measure; however, in Indonesia's view, this does not address the risks with which Indonesia is concerned.
6.33.
We reject Brazil's request as we see no reason to change our assessment. Brazil's reference to Codex's guideline for the control of Campylobacter in chicken meat (Codex CAC/GL 78-2011) in its response to Panel question No. 90, does not address the health risks arising from or relative to leaving fresh chicken displayed at outside temperatures. We therefore decline to amend this paragraph as suggested by Brazil.
6.34.
Brazil requests the Panel to modify paragraphs 7,318 and 7,320 to better reflect Brazil's arguments on likeness of thawed and fresh chicken. In this context, Brazil also refers to the Panel's analysis on consumer tastes in respect of the food safety issue and points out that Indonesia did not make any argument to this effect. Indonesia considers Brazil's request to be without merit and requests the Panel to reject it.
6.35.
We made changes to paragraph 7,318 to accommodate Brazil's request.

6.6 INDIVIDUAL MEASURE 5: HALAL LABELLING REQUIREMENTS

6.36.
Regarding paragraph 7,532, Indonesia requests the Panel to make changes to better reflect Indonesia's arguments on why it conducts a holistic assessment of the exporters' compliance with sanitary requirements and halal requirements. Brazil opposes Indonesia's request and notes that regardless of Indonesia's right to adopt its own halal requirements, it is settled that the verification of sanitary requirements comprises exclusively SPS-related matters.
6.37.
We accept Indonesia's request and have changed paragraph 7,532 (paragraph 7,533 in the Report) accordingly. Contrary to what Brazil seems to imply, we consider that Indonesia's request does not affect the outcome of the Panel's analysis; it rather clarifies the arguments raised by Indonesia addressed by the Panel.

6.7 INDIVIDUAL MEASURE 6: TRANSPORTATION REQUIREMENT

6.38.
Regarding paragraph 7,598, Brazil requests the Panel to include or make a specific reference in item (g) of section 8 (conclusions and recommendations) of the Interim Report to the Panel's understanding that the direct transportation requirement, as enshrined in Article 19(a) of MoA 34/2016 includes transhipment. Indonesia is of the view that it is not necessary for the Panel to refer to transhipment in its findings in item (g), because this finding refers specifically to the direct transportation requirement as challenged in Brazil's panel request.
6.39.
We see no need to reflect this finding in section eight (conclusions and recommendations) of the Report. As Brazil notes, the Panel's factual finding that the transportation requirement, as enshrined in Article 19(a) of MoA 34/2016, allows for transit (including transhipment) is contained in paragraph 7,598 of the Interim Report (paragraph 7,599 of the Report). We observe that this finding is one of two intermediate findings that lead to the overall finding and conclusion contained in section 8. We are of the view that there is no need for section 8 to contain all the detailed and intermediate findings that we have made in the course of our examination, in particular those that have no bearing on implementation under Article 21.5 of the DSU. Furthermore, in our view, the legal value of a finding made by the Panel is not defined by whether it is contained in section seven (findings) or section eight (conclusions and recommendations) of the Report.

6.8 CLAIMS RELATING TO THE ALLEGED GENERAL PROHIBITION

6.40.
Indonesia requests the Panel to add a sentence at the end of paragraph 7,620, to reflect Brazil's characterization of the alleged general prohibition as "on-going conduct" of "general and systematic application", made during the first meeting. Indonesia refers to the Appellate Body's finding in Argentina – Import Measures that the constituent elements that must be substantiated with evidence and arguments in order to prove the existence of a measure challenged will be informed by how such measure is described or characterized by the complainant. Brazil opposes Indonesia's request because it considers it to be misleading. Brazil notes that its reference to "on-going conduct" or "general and prospective application" at the first meeting of the Panel served only to highlight possible analytical tools available to the Panel in WTO case law so as to ascertain the existence of an unwritten measure.
6.41.
We see no need to amend this paragraph as suggested by Indonesia. However, in light of the parties' comments, we have changed paragraph 7,620 (paragraph 7,621 in the Report) to better reflect Brazil's arguments. Brazil has described the content and scope of the alleged general prohibition in several sections of its submissions. Notably, in paragraph 172 of its first written submission, Brazil provided a description of the nature of the alleged general prohibition. In that description, Brazil did not refer to the measure being an "on-going conduct" of "general and systematic application". Indonesia refers to a statement made by Brazil in response to questions posed by the Panel during the first substantive meeting. After the first meeting, the Panel sent written questions to both parties, which included questions similar to those formulated during the meeting. One such question is Panel question No5(c). As noted by Indonesia, in its response to this question, Brazil replied that characterizing the measure in a particular way does not change the nature of the measure itself or the evidentiary threshold necessary to demonstrate its existence. This point is now also reflected in the summary of Brazil's arguments. We are cognizant of the Appellate Body's finding referred to by Indonesia, and specifically discuss its implications in section 7.10.4.3 of the Report.
6.42.
Indonesia requests the Panel to add a footnote to paragraph 7,656 to better reflect Indonesia's position that the delay in the approval of the veterinary health certificate is caused by the actions of Brazil's exporters. Brazil considers that request should be disregarded by the Panel, because this paragraph does not deal with the question of attribution of any delays in the approval of veterinary health certificates, but rather with the question of attribution of the unwritten measure.
6.43.
We accept Indonesia's request and have added footnote 848 to paragraph 7,656 (paragraph 7,657 in the Report). We acknowledge that Indonesia did raise an objection with respect to the attribution of the delay in the approval of the veterinary certificate to Indonesia's authorities. To the extent that Brazil included the undue delay as constituent measure of the alleged general prohibition, we consider Indonesia's argument to be pertinent in this section.
6.44.
Regarding paragraphs 7,658 and 7,659: Brazil requests the Panel to modify those paragraphs to better reflect Brazil's arguments. Brazil considers that the Panel failed to reflect Brazil's arguments on the trade effects of Indonesia's overarching measure. Brazil further notes that it has provided sufficient evidence of the causal link between the absence of chicken imports and the Indonesian legislation applicable to the imports of chicken meat and chicken products since 2009 (referring to Exhibits BRA-09, BRA-08, and BRA-10). Indonesia requests the Panel not to accept Brazil's request. Indonesia considers that Brazil's request is based on its erroneous assumptions and apparent misunderstanding of the Panel's reasoning. Moreover, Indonesia considers Brazil's request to modify these paragraphs to be imprecise.
6.45.
We see no need to amend these paragraphs as suggested by Brazil. In section 7.10.3 of the Report, the Panel summarized Brazil's arguments, and referred to the relevant evidence submitted by Brazil in support of its claims against the alleged general prohibition. The paragraphs that Brazil refers to are part of section 7.10.4 (Panel's assessment) of the Report, where the Panel engages with each of the arguments that Brazil raised in support of the existence of the alleged general prohibition. Those two paragraphs address, specifically, whether the trade data submitted by Brazil proves the existence of the measure. To that extent, we consider that these paragraphs are not dealing with Brazil's arguments. They are rather setting out the Panel's assessment of the arguments that the Panel summarised in an earlier section of the Report. Therefore, we see no need to modify the paragraphs mentioned by Brazil. Moreover, we consider that the additional arguments raised by Brazil in respect of the demonstration of the casual link between the absence of chicken imports and the Indonesian legislation applicable to the imports of chicken meat and chicken products since 2009 are addressed in the remainder of section 10.4.
6.46.
Regarding paragraphs 7,670 and 7,686: Brazil requests the Panel to modify those paragraphs to better reflect Brazil's arguments. Brazil notes that it never suggested that as long as chicken meat and chicken products could not be imported into Indonesia the unwritten measure would be in place. Brazil emphasizes that it was rather concerned with the connection of the set of individual measures that operates together to ban imports of chicken from Brazil. Indonesia requests the Panel not to accept Brazil's request. As a preliminary matter, Indonesia considers that Brazil's request for review of these paragraphs is very unclear. Indonesia further considers that in light of Brazil's submissions throughout the proceedings the Panel did not mischaracterize Brazil's arguments.
6.47.
We see no need to amend those paragraphs as suggested by Brazil. In section 7.10.3.3, the Panel set out Brazil's arguments in respect of the distinction between the individual measures constituting the alleged general prohibition and the alleged general prohibition itself. On the basis of its understanding of those arguments, the Panel developed its assessment in section 7.10.4. In the Panel's view, the manner in which the Panel formulated its understanding of Brazil's arguments for the purposes of its assessment, both in paragraphs 7,670 and 7,686, corresponds with the arguments that Brazil raised throughout its submissions in these proceedings.

6.9 CONCLUSIONS AND RECOMMENDATIONS

6.48.
Indonesia requests the Panel to include in its list of conclusions and recommendations its findings that the Panel has no jurisdiction to rule on Brazil's claims with respect to certain measures. Brazil does not comment on Indonesia's request.
6.49.
We see no need to accept Indonesia's request. Similarly to what we stated in paragraph 6.39 above we consider that it is not necessary to include every jurisdictional finding in the section on conclusions and recommendations of the Report.

7 FINDINGS

7.1.
Before turning to our review of Brazil's claims, as a preliminary matter, we first set out two rulings of interest which we made early on in the proceedings.

7.1 PRELIMINARY MATTERS

7.1.1 Requests to join the Panel proceedings as third parties after the ten-day period

7.2.
As described in section 1.2 above, Oman and Qatar requested to join these proceedings as third parties over three months after the Panel was established (see paragraph 1.7 above). Neither Member provided an explanation for the timing of its request.
7.3.
After consulting with the parties, the Panel decided to accept the requests. The Panel's decision, as communicated to Oman and Qatar, as well as to the parties and the other third parties, is set out below:

Oman and Qatar respectively addressed the DSB Chair on 28 April 2016 and 23 May 2016, requesting to participate as third parties in DS 484. The requests were made over 3 months after the Panel was established. Neither Member provided an explanation for the timing of its request. On 25 May 2016, the Panel consulted the parties. Brazil took the view that neither request should be accepted. Indonesia had no objections to the requests.

The Panel notes that Article 10 of the DSU is silent on when Members are to notify their interest in participating in a dispute as third party and recalls the Appellate Body's statement in EC - Hormones that "the DSU leaves panels a margin of discretion to deal, always in accordance with due process, with specific situations that may arise in a particular case and that are not explicitly regulated".43

In exercising its discretion, the Panel has taken into account the following. First, the Panel recalls that, once a panel is established, the DSB Chair invites delegations wishing to reserve their third‑party rights to raise their flags, after which the Chair reads out the names of those Members who have indicated such interest. The Chair then states as follows:

Those Members who have reserved their third-party rights by raising their flags do not need to send any confirmation in writing to the Secretariat. Other delegations who may wish to reserve their third-party rights should do so through a written communication within the next 10 days after this meeting.

This approach, which was developed in the GATT, has been followed for the more than 230 panels established by the DSB since 1995.44

Second, in 10 cases, so far, panels have accepted requests that were made beyond the 10 day period.45 In doing so, these panels considered whether accepting the request would interfere with the panel's composition, and whether the proceedings would be hampered or due process rights affected. In those cases, requests for third party participation were either filed before or shortly after panel composition.46

Third, the Panel notes that both Oman and Qatar are developing countries with very little experience in dispute settlement cases.

The Panel notes that accepting Qatar's and Oman's requests would have no consequences for panel composition, as neither Member has a national on the Panel. Furthermore, the requests, while quite late in the proceedings still allow Qatar and Oman to participate in accordance with the timetable adopted by the Panel, particularly the deadline for third parties submissions (17 June 2016) and the session of the Panel with the third parties (14 July 2016). Thus, accepting the requests does not affect the development of the proceedings.

Finally, the Panel notes that Brazil indicated inter alia that the requests should be denied because it had "already submitted its First Written Submission" and "considers that it would seem inadequate to permit new Third Parties at this stage". The Panel notes that Brazil did not allege or explain that participation by Qatar and Oman would affect its due process rights. Furthermore, Brazil neither asked for confidential treatment of the information it presented in its first written submission, nor did it indicate in any other way a need to limit third parties' access to such information. Accordingly, Brazil's first written submission was sent to the third parties without any restrictions. The Panel further notes that Brazil will have an opportunity to comment on the views that may be submitted by Oman and Qatar as third parties. The Panel therefore does not consider that accepting the requests by Oman and Qatar would affect the due process rights of the parties or third parties in these proceedings.

On the basis of the above considerations, the Panel accepts Oman's and Qatar's requests for third‑party participation. This acceptance is subject to maintaining the timetable adopted by the Panel for the participation of third parties. The Panel is cognizant that, as Brazil points out, no request for third-party participation has ever been made as late as in these proceedings. Accepting these requests recognizes the limited experience of the requesting Members but should not be taken as encouragement to other Members to disregard the long-standing norm of indicating third‑party interest at the DSB meeting where the panel is established or within 10 days thereafter.

7.1.2 Preliminary ruling request by Indonesia

7.4.
As described in section 1.3.2 above, Indonesia presented along with its first written submission, a request for a preliminary ruling concerning certain alleged defects in the panel request as well as alleged inconsistencies between the scope of the panel request and Brazil's first written submission. The Panel, on 19 July 2016, communicated its conclusions. This section describes Indonesia's request as well as the Panel's ruling.

7.1.2.1 Indonesia's request

7.5.
Indonesia requested the Panel to find that:

a. The alleged general prohibition/overarching measure is not properly within the terms of reference of the Panel;

b. Brazil's challenge to the import licensing regime "as a whole" is not properly within the terms of reference of the Panel;

c. Brazil's claims with regard to other prepared or preserved chicken meat were not identified in the panel request and therefore are not within the terms of reference of the Panel; and

d. Brazil is precluded from raising claims under Article 1 of the Agreement on Import Licensing Procedures.47

7.6.
In its comments, Brazil requested the Panel to disregard the requests presented by Indonesia.48

7.1.2.2 The Panel's conclusions and reasoning

7.7.
In its communication of 19 July 2016, the Panel informed the parties of its conclusions with respect to Indonesia's request for a preliminary ruling, namely that it:

1. Finds that the alleged general prohibition/overarching measure is properly within the terms of reference of the Panel, and in particular, that (a) Brazil's panel request provides a brief summary of the complaint sufficient to present the problem clearly, (b) the measure described in Brazil's first written submission is not altered to the point of falling outside the terms of reference of the Panel, and (c) the alleged general prohibition is properly identified in Brazil's panel request.

2. Finds that the panel request does not contain a challenge to the import licensing regime "as a whole", and such measure is therefore not within the terms of reference of the Panel.

3. Finds that Brazil's claims with regard to other prepared or preserved chicken meat are identified in Brazil's panel request and are therefore within the terms of reference of the Panel.

4. Takes note of Brazil's statement that it is not making any claims under Article 1 of the Agreement on Import Licensing Procedures and therefore sees no need to rule that Brazil is precluded from making such claims.49

7.8.
The Panel indicated in its communication that its reasoning in reaching these conclusions would be elaborated in this report. Accordingly, we now turn to set out those reasons. We will first refer to the legal standard governing a panel's terms of reference and then provide the reasoning for each of the conclusions.

7.1.2.2.1 Legal standard applicable to a panel's terms of reference

7.9.
As noted by the Appellate Body, pursuant to Article 7.1 of the DSU, a panel's terms of reference are governed by the panel request, unless the parties agree otherwise.50 The panel request, thus, delimits the scope of a panel's jurisdiction.51
7.10.
Article 6.2 of the DSU, which governs the panel request, states:

The request for the establishment of a panel shall be made in writing. It shall indicate whether consultations were held, identify the specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly.

7.11.
Article 6.2 contains two distinct requirements, namely (1) the identification of the specific measures at issue; and (2) the provision of a brief summary of the legal basis of the complaint (or the claims) sufficient to present the problem clearly. Together these two elements comprise the "matter referred to the DSB", and form the basis of the panel's terms of reference under Article 7.1 of the DSU.52 Therefore, a measure that has not been properly identified in the panel request is outside a panel's terms of reference. Similarly, a panel has no jurisdiction over claims that have not been briefly summarized in a manner sufficient to present the problem clearly.
7.12.
As the Appellate Body found, by establishing and defining the jurisdiction of the panel, the panel request fulfils the due process objective of providing the respondent and third parties notice regarding the nature of the complainant's case so as to enable them to respond accordingly.53
7.13.
Furthermore, the Appellate Body summarized the manner in which a panel must determine whether a panel request fulfils the requirements of Article 6.2:

A panel request's compliance with the requirements of Article 6.2 of the DSU must be demonstrated on its face as it existed at the time of its filing. Consequently, any defects in the panel request cannot be "cured" by the subsequent submissions of the parties.54 Nevertheless, subsequent submissions, such as the complaining party's first written submission, may be consulted to the extent that they may confirm or clarify the meaning of the words used in the panel request.55,56

7.14.
The parties generally agree on this legal standard. However, Brazil adds a further element. Based on the Appellate Body report in Korea – Dairy, Brazil argues that a party that alleges an impairment of its right of defence must provide evidence to support such impairment.57 Brazil submits in this regard, that Indonesia has failed to present any evidence relating to the prejudice that it alleges to have suffered.58
7.15.
We note that Appellate Body statements in recent cases contradict Brazil's argument.In EC and certain member States – Large Civil Aircraft, the Appellate Body emphasized that "this due process objective is not constitutive of, but rather follows from, the proper establishment of a panel's jurisdiction".59 In US – Countervailing and Anti‑Dumping Measures (China),the Appellate Body, referring back to this statement, explicitly ruled out the need for any demonstration that a respondent's ability to defend itself was effectively impaired:

[A] determination of whether due process has been respected does not necessitate a separate examination of whether the parties suffered prejudice, considering that "[t]his due process objective is not constitutive of, but rather follows from, the proper establishment of a panel's jurisdiction."60,61 (emphasis added)

7.16.
On the basis of the foregoing, we do not agree with Brazil that in our assessment of whether Brazil's panel request satisfies the requirements of Article 6.2, we should examine whether Indonesia suffered prejudice in its ability to defend itself.

7.1.2.2.2 Whether the alleged general prohibition is within the Panel's terms of reference

7.17.
We turn to examine the first issue identified by Indonesia in its request for a preliminary ruling. Indonesia develops three lines of arguments to submit that the alleged general prohibition is not within the Panel's terms of reference. The first argument refers to Brazil's panel request not providing a brief summary of the legal basis sufficient to present the problem clearly. The second argument pertains to a discrepancy between the measure described in Brazil's panel request and in Brazil's first written submission. The third argument pertains to the panel request not referring to the objective linking together the seven measures that constitute the general prohibition, thus affecting its proper identification. We turn to discuss each of these arguments.

7.1.2.2.2.1 Whether the panel request contains a brief summary of the legal basis of the complaint sufficient to present the problem clearly

7.18.
Indonesia's first argument, concerns the description of the claims in respect of the alleged general prohibition, as set out in Brazil's panel request. Indonesia takes issue with the fact that Brazil refers to seven separate measures, contained in at least six legal instruments, allegedly breaching 15 WTO legal provisions. Indonesia considers that in doing so, Brazil does no more than repeat the text of these legal provisions without connecting them to the specific measures and the specific legal instruments at issue.62 Brazil considers that the general prohibition is described as independent from its components63, and that the panel request lists the WTO provisions with which the general prohibition is considered to be inconsistent.64
7.19.
We note that the summary of the legal basis of the complaint aims to explain succinctly how or why the challenged measure is considered to be violating the WTO obligations in question.65 The Appellate Body found that:

[I]n order to "present the problem clearly", a panel request must "plainly connect" the challenged measure(s) with the provision(s) claimed to have been infringed such that a respondent can "know what case it has to answer, and... begin preparing its defence".66,67

7.20.
We will examine Brazil's panel request following the Appellate Body's guidance, to determine whether it provides a brief summary of the legal basis of the complaint sufficient to present the problem clearly.
7.21.
Brazil's panel request starts with an introduction indicating the procedural history of the dispute and summarizing the measures at issue.68 Under heading I, it then describes the general prohibition, including its seven constitutive elements, and lists the underlying legal instruments, and the articles of the covered agreements that the general prohibition is allegedly inconsistent with.69 Under heading II, there are different sections, which describe the specific restrictions and prohibitions on the importation of chicken meat and chicken products, and list their underlying legal instruments as well as the articles of the covered agreements that each measure is allegedly inconsistent with.70
7.22.
We understand Indonesia's main concern to be the lack of sufficient clarity on which aspects of the general prohibition are inconsistent with which articles of the covered agreements listed by Brazil, including a brief indication of how and why.71 We agree with Indonesia that Brazil's panel request could have been structured in a clearer manner. However, in our view it does not fall short of the requirement to provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly for the following reasons.
7.23.
First, in the introductory paragraph of the section addressing the alleged general prohibition, Brazil's panel request describes this measure as follows: "Indonesia imposes several prohibitions or restrictions on the importation of chicken meat and chicken products which, combined, have the effect of a general prohibition on the importations of these products". We consider this language to clearly indicate that the challenge is against one measure, not seven separate ones.
7.24.
Second, we note that the last part of the section of Brazil's panel request concerning the alleged general prohibition begins with the following introductory clause: "Brazil considers that the general import prohibition described above is inconsistent with Indonesia's obligations under the following provisions" (emphasis added).72 Brazil then lists several articles of the covered agreements and briefly explains why "these measures", generally referring to the alleged general prohibition, are inconsistent with each of the respective articles. In our view, the degree of detail provided in this section meets the minimum required under Article 6.2, because it includes a list of the articles of the covered agreements that the measure is considered to be inconsistent with, and briefly indicates why the challenged measure is inconsistent with them.73
7.25.
Third, in our view, the second part of Brazil's panel request, describing the specific restrictions and prohibitions also challenged by Brazil, serves as context in understanding what the problem is. Four of the constitutive elements of the general prohibition are also challenged as individual restrictions.74 In the sections that relate to each of those elements, the panel request provides an explanation of why each measure is inconsistent with certain provisions of the covered agreements. Thus, this further clarifies how certain elements of the general prohibition relate to each of the 15 WTO provisions allegedly breached by this measure.75
7.26.
Fourth, Indonesia argues that the situation that we are confronted with is similar to that examined by the Appellate Body in China – Raw Materials.76 In that case, the Appellate Body found that the complainants' panel requests did not present the problem clearly. This is, because the relevant section of the complainants' panel requests (section III) referred generically to "Additional Restraints Imposed on Exportation" and raised multiple problems relative to different obligations arising under several provisions of the GATT 1994, China's Accession Protocol, and China's Working Party Report. The Appellate Body observed that neither "the titles of the measures nor the narrative paragraphs reveal the different groups of measures that are alleged to act collectively to cause each of the various violations, or whether certain of the measures is considered to act alone in causing a violation of one or more of the obligations".77 In our view, the fact pattern in the present case differs from that addressed by the Appellate Body in China – Raw Materials. Brazil's panel request does not refer to several measures independently and then list a number of WTO provisions without briefly explaining why it considers that the challenged measure is inconsistent with them. Rather, Brazil's panel request describes only one measure and briefly indicates why this measure is inconsistent with each of the relevant WTO provisions.
7.27.
Fifth, in our view, the amount of detail that Indonesia considers necessary would require Brazil to develop arguments in addition to setting out the claims. Indeed, Indonesia seems to expect Brazil's panel request to describe the precise and specific manner in which each of the constitutive elements of the general prohibition, not the measure itself, are inconsistent with the relevant articles of the covered agreements. The Appellate Body has been clear in acknowledging that Article 6.2 requires that the claims – not the arguments – be set out in a panel request in a way that is sufficient to present the problem clearly.78 In our view, accepting Indonesia's arguments would require us to blur this distinction.
7.28.
On the basis of the foregoing, we consider that Brazil's panel request satisfies the minimum standard set out in Article 6.2. This is, the panel request lists the specific articles of the covered agreements that it claims are breached by the general prohibition, and it plainly connects, albeit in a general manner, the aspects of the general prohibition that it considers to be inconsistent with the relevant article of the covered agreements.

7.1.2.2.2.2 Whether the measure has been properly identified

7.29.
As indicated above, Indonesia makes the following two arguments in connection with the proper identification of the general prohibition. First, Indonesia takes issue with the fact that the panel request lists seven elements of the alleged general prohibition, whereas the first written submission lists only six.79 Second, Indonesia argues that to properly identify the alleged general prohibition, Brazil should have included in its panel request a description of the policy objective pursued by such measure.80 Brazil considers that Article 6.2 does not require a panel request to describe the policy objective of an unwritten measure.81 Brazil also argues that not referring in its first written submission to one of the components of the general prohibition mentioned in the panel request does not alter the nature of this measure, and that it is its prerogative to better formulate and develop its claims, respecting the panel's terms of reference.82
7.30.
We note that both of these arguments relate to the proper identification of the measure, albeit in differing ways. An assessment of whether a panel request has sufficiently identified a specific measure has to be done on a case-by-case basis.83 The Appellate Body has observed that a panel should undertake this assessment: (a) on an objective basis, and (b) considering the particular context in which the measures exist and operate.84 The Appellate Body has also noted that "the measures at issue must be identified with sufficient precision so that what is referred to adjudication by a panel may be discerned from the panel request".85
7.31.
In the specific context of identifying an unwritten measure, the Appellate Body has made a clear distinction between the standard required for the proper identification of an unwritten measure and the demonstration of its existence.86 While the former is a matter of Article 6.2 of the DSU – at issue here – the latter is a substantive question to be addressed with the merits of the case. The Appellate Body stated in particular, that, "the identification of a measure within the meaning of Article 6.2 need be framed only with sufficient particularity so as to indicate the nature of the measure and the gist of what is at issue".87 Consequently, we understand that there is no requirement for perfect identity between what is described in the panel request and what is described in the submission, as long as the "nature and gist of the measure" remains the same.
7.32.
Turning to the first argument, Indonesia essentially argues that the measure described in the first written submission is not the one identified in the Panel request and is, therefore outside the Panel's terms of reference.88
7.33.
As we understand it, the "nature and gist of the measure" as described in the panel request is that it is an unwritten measure that consists of a number of individual measures, which allegedly operate together in such a way as to result in a general prohibition. Thus, the unwritten measure constitutes the framework for a number of different measures.
7.34.
At this general level of identifying the "nature and gist" of the measure, we consider that the alleged general prohibition is not significantly altered just because there is one less constitutive element in its description. It is still a measure that allegedly constitutes the framework for a number of different measures. Whether the six elements make up the unwritten measure or whether other allegedly equally trade-restrictive measures – possibly including the seventh measure described in the panel request – are or are not part of that unwritten measure, is a question of demonstrating the existence of the alleged general prohibition, but not of its proper identification. For the purposes of the latter, the Panel considers that the measure as described in Brazil's first written submission is within the Panel's terms of reference.
7.35.
Turning to the second argument, we understand Indonesia to allege a deficiency in Brazil's panel request, insofar as it does not describe the objective of the alleged unwritten measure. As seen above, in our view, Brazil's panel request is clear in providing the elements necessary to discern the measure.89
7.36.
In our assessment, whether there is an objective that links the different elements of the general prohibition together is a question of demonstrating the existence of the measure.90 Thus, contrary to what Indonesia argues91, we do not consider that to properly identify the alleged general prohibition, Brazil necessarily had to include a description of the objective of the measure in the panel request. We will address this issue when we assess, on the merits, whether Brazil has established a prima facie case that the general prohibition is a measure attributable to Indonesia, and that it is contrary to a number of WTO provisions. We therefore conclude that Brazil was under no obligation to describe the objective of the alleged general prohibition in its panel request to satisfy the requirements of Article 6.2 of the DSU.92
7.37.
On the basis of the foregoing, the Panel finds that the alleged general prohibition/overarching measure is properly within the terms of reference of the Panel, and in particular, that (a) Brazil's panel request provides a brief summary of the complaint sufficient to present the problem clearly, (b) the measure described in Brazil's first written submission is not altered to the point of falling outside the terms of reference of the Panel, and (c) the alleged general prohibition is properly identified in Brazil's panel request.

7.1.2.2.3 Whether Brazil's panel request properly identified Indonesia's import licensing regime "as a whole"

7.38.
Indonesia argues that Brazil's challenge to Indonesia's import licensing regime as a whole is not within the Panel's terms of reference.93 In particular, Indonesia submits that Brazil's panel request, when addressing Indonesia's import licensing regime refers to a limited number of aspects of Indonesia's import licensing regime94, and that it is only in its first written submission that Brazil challenges Indonesia's import licensing regime as a whole.95 Brazil rejects Indonesia's arguments, and submits that it has properly identified in its panel request the challenged measure as Indonesia's import licensing regime, as a whole. Brazil submits that when read as a whole, and on the basis of the language used, it is clear that Brazil's panel request was not referring to specific provisions of Indonesia's licensing procedures, but to the import licensing regime as a whole.96
7.39.
As indicated above, a measure at issue must be identified with sufficient precision so that what is referred to adjudication by a panel may be discerned from the panel request.97 Previous panels confronted with claims against a regime as a whole, found that such a measure was at issue because the relevant panel request clearly indicated that to be the case.98 We thus consider that for a panel request to properly challenge a regime as a whole, it should clearly indicate that the whole regime is a measure at issue.
7.40.
We do not find such a clear indication in Brazil's panel request. In section II.v of its panel request, Brazil addresses "Restrictions on the importation of chicken meat and chicken products through Indonesia's Licensing Regime". In that section, Brazil, in describing Indonesia's licensing regime, neither uses the expression "as a whole" nor describes issues in a way that suggests that the regime as a whole is the cause of nullification and impairment. Instead, Brazil refers to specific aspects of Indonesia's licensing regime and describes those as trade-restrictive.99 In addition, Brazil challenges a number of import licensing conditions as individual measures elsewhere in the panel request. A plain reading of the panel request, therefore, suggests that Indonesia's import licensing regime as a whole is not a measure that Brazil challenges, but rather, that it challenges specific aspects of the import licensing regime.
7.41.
We see the above reading confirmed in Brazil's own submissions. In its submissions, Brazil listed a limited number of specific aspects of Indonesia's import licensing regime that it is challenging.100
7.42.
On this basis, we find that Brazil's panel request does not contain a challenge to the import licensing regime "as a whole", and that this measure is therefore not within the Panel's terms of reference.

7.1.2.2.4 Whether Brazil's claims with regard to the import prohibition on other prepared or preserved chicken meat are within the Panel's terms of reference

7.43.
The panel request describes a specific import prohibition on certain chicken products in a number of places. Indonesia argues that the Panel should decline to rule on that import prohibition to the extent it covers other prepared or preserved chicken meat.101 Indonesia submits that in its panel request, Brazil only challenged the prohibition on the importation of fresh, chilled or frozen poultry cuts and offal (HS subheadings 020713 and 020714), but did not challenge the prohibition on the importation of prepared or preserved chicken meat (HS heading 1602).102 According to Indonesia, Brazil's identification of the challenged measure as the prohibition on the importation of chicken cuts prevents Brazil from including additional products under the scope of that measure.103 Brazil argues that it has identified in its panel request the products at issue, including prepared or preserved chicken meat (HS subheading 1602.32). Brazil considers this category of products is therefore within the Panel's terms of reference.104
7.44.
In our view, Indonesia's arguments go to the manner in which Brazil's panel request identified the measure at issue, and how such identification affects the product coverage of the measure at issue. Article 6.2 of the DSU does not refer to the identification of the products at issue; rather, it refers to the identification of the measures at issue. A number of cases have addressed the question of whether it is necessary to identify the products at issue in the panel request. Previous panels and the Appellate Body have concluded that with respect to certain WTO obligations (e.g. related to tariff classification), the identification of the products to which the specific measures at issue apply may be necessary to identify the products subject to the measure in dispute.105 Moreover, the Appellate Body has noted that in certain circumstances, the scope of the products identified in a panel request may limit the scope of a panel's terms of reference.106
7.45.
In the introductory paragraph of the panel request, Brazil refers to the products at issue as "meat from fowls of the species Gallus domesticus and products from fowls of the species Gallus domesticus hereinafter referred to as chicken meat and chicken products".107 A footnote to the above quoted sentence in the panel request, provides that the products concerned in the present dispute are referred to by the following HS codes "(i) 0207.11 (whole chicken, not cut into parts, fresh or chilled); (ii) 0207.12 (whole chicken, not cut into parts, frozen); (iii) 0207.13 (chicken cuts and offal, fresh or chilled); (iv) 0207.14 (chicken cuts and offal, frozen) and; (v) 1602.32 (chicken meat, other leftover meat and blood that has been processed or preserved)".108 Thus, as Brazil rightly points out, its panel request includes a general reference to the products at issue, which includes an explicit reference to prepared or preserved chicken meat.
7.46.
Brazil's panel request then provides three different descriptions of the specific prohibition on the importation of certain products. First, when referring to the elements of the alleged general prohibition:

Indonesia does not allow the importation of animal and animal products not listed in the appendices of the relevant regulations109. With regard to chicken, the list only contemplates HS codes referred to as whole chicken, fresh or chilled and frozen110. The HS codes for chicken meat cut into pieces111 are not described in any of the "positive lists" which contain the products that can be imported into Indonesia's territory;112,113

7.47.
The second description of the measure features in sections II.i (measures that do not conform to nor are based on international standards) and II.ii (measures that are more trade restrictive than required to achieve its appropriate level of protection). In both these sections the specific import prohibition on certain chicken products is described as:

Prohibition on the importation of chicken cuts, as the relevant regulations only allow the whole chicken, fresh or chilled and frozen.114 The HS codes for chicken meat cut into pieces115 are not described in any of the "positive lists" which contain the products that can be imported into Indonesia's territory;116

7.48.
The third description of the measure features in Section II.iv (measures that discriminate against imported chicken meat and chicken products):

Indonesia prohibits the importation of chicken meat cut into pieces117 while domestically produced chicken cuts are largely traded in its domestic market;118

7.49.
We recall that a panel must examine a panel request as a whole and on the basis of the context in which the measure at issue exists and operates. A panel may seek confirmation or clarification of the meaning of the panel request in subsequent submissions.119
7.50.
The first description above is focused on the existence of a "positive list", while the second and third descriptions are focused on the absence of chicken cuts from that list. Furthermore, the first description contains a reference to prepared or preserved chicken in a footnote, while the second and third do not. Notwithstanding these apparent differences, by reading Brazil's panel request as a whole, it is clear to us that all of the above-enumerated descriptions focus on the same measure. That measure is the requirement for certain products to be listed in the relevant appendices of Indonesia's regulations governing the importation of animal products, for their importation to be permitted. We consider that our conclusion is further reinforced by the manner in which Brazil formulated its arguments in respect of its claims against this measure as well by Brazil's answers during the first substantive meeting to the Panel's question on what is the measure at issue.120 Finally, we do not see Indonesia contest that there is only one measure despite the various, differing descriptions.121
7.51.
Thus, the product coverage within the Panel's terms of reference must be construed on the basis of that one challenged measure, in reading the panel request as a whole. As seen above, while not in every description, Brazil's panel request does contain one description that refers to chicken cuts and prepared or preserved chicken meat as being excluded from the list. The panel request indicates this to be the case in at least one relevant regulation. In addition, the panel request generally defines the product scope as including that product. Read as a whole, therefore, we consider that Brazil's claims with respect to the positive list requirement do not exclude prepared or preserved chicken meat from the Panel's terms of reference.
7.52.
Furthermore, the Appellate Body in EC – Selected Customs Matters found that the arguments included in a panel request "should not be interpreted to narrow the scope of the measures or the claims".122 In our view, this logic also applies to situations where the description of the measure varies slightly throughout different sections of a panel request. Accordingly, we consider that the references to chicken cuts in the second part of Brazil's panel request should not be read in such a manner as to narrow down the scope of the positive list.
7.53.
Based on the foregoing, we find that Brazil's claims with regard to other prepared or preserved chicken meat are identified in Brazil's panel request and are therefore within the terms of reference of the Panel.

7.1.2.2.5 Whether claims raised by Brazil under Article 1 of the Import Licensing Agreement are within the Panel's terms of reference

7.54.
Indonesia submits that if Brazil were raising a separate claim under Article 1 of the Import Licensing Agreement, it would be outside the Panel's terms of reference.123 Brazil observes that "it did not make any claim under Article 1" of the Import Licensing Agreement. Brazil clarifies that its references to Article 1 in its first written submission are for the purposes of contextualization.124
7.55.
The Panel takes note of Brazil's statement that it is not making any claims under Article 1 of the Import Licensing Agreement and therefore does not see a need to rule on this issue.
7.56.
This concludes our section on preliminary matters. We now turn to our review of Brazil's claims.

7.2 PANEL'S ORDER OF ANALYSIS

7.2.1 General

7.57.
We recall that as a general principle panels are free to structure their order of analysis in the way they consider most appropriate as long as the structure of the analysis adopted accords with their mandate and functions under the DSU.125 In deciding on how to proceed to examine the matter referred to us, we need to decide on the sequence of our analysis as it relates to three elements of the case: (a) the order of analysis between claims brought against a general prohibition and claims against individual measures some of which are part of the general prohibition; (b) the order of analysis for a plurality of claims when they all refer to the same aspect of a measure; and (c) the sequence for the analysis of measures in force at the time of establishment of the panel and as subsequently amended to the extent that they are covered by the Panel's terms of reference.

7.2.2 Order of analysis in respect of claims against the general prohibition and against individual measures

7.58.
Concerning the sequence of analysis in respect of the claims against the alleged general prohibition as a single unwritten measure and claims against individual measures, we note that Brazil as a complainant presented its submissions addressing first the alleged general prohibition.126 Brazil has not indicated any particular reason for the manner in which it has structured its claims. Considering however that Brazil has characterized the general prohibition as a "single unwritten measure" composed of a number of individual measures, we will proceed first with a review of the claims against each of the individual measures before addressing the general prohibition. This sequence allows us to have an understanding of the content and operation of each of the measures individually, which is useful when assessing how the individual measures may interact to form a single unwritten measure as claimed by Brazil.

7.2.3 Order of analysis of claims

7.2.3.1 Introduction

7.59.
Brazil has raised claims under Article XI:1 of the GATT 1994 and Article 4.2 of the Agreement on Agriculture, Article III:4 of the GATT 1994, and Article 3.2 of the Import Licensing Agreement. Indonesia submits that for all the measures for which Brazil made claims of a breach of Article 4.2 of the Agreement on Agriculture and Article XI of the GATT 1994, Article 4.2 of the Agreement on Agriculture applies to the exclusion of Article XI:1 of the GATT 1994.127 In addition, Indonesia submits that Articles III:4 and XI:1 of the GATT 1994 are mutually exclusive and cannot be applied to the same aspect of a measure.128 Finally, Indonesia considers that some of the measures challenged are not import licencing procedures and thus the Import Licencing Agreement is not applicable.129 In this section, we address the first of these challenges, i.e. the relation between Article 4.2 of the Agreement on Agriculture and Article XI:1 of the GATT 1994. We limit our analysis in this section to that challenge because it touches upon five of the seven measures. As the remaining two challenges concern only one measure each, we address them in the relevant sections concerning these measures.

7.2.3.2 Whether Article XI of the GATT 1994 and Article 4.2 of the Agreement on Agriculture are mutually exclusive

7.60.
Indonesia argues that there is a conflict between Article 4.2 of the Agreement on Agriculture and Article XI of the GATT 1994 which pursuant to Article 21.1 of the Agreement on Agriculture, must lead to the exclusion of Article XI of the GATT 1994.130 The conflict, according to Indonesia, arises from the difference in the allocation of the burden of proof in respect of a defence under Article XX of the GATT 1994 for, on the one hand, a violation of a GATT provision (e.g. of Article XI), and, on the other hand, a measure subject to Article 4.2 of the Agreement on Agriculture. Indonesia submits that under Article 4.2, a complaining party has the burden of demonstrating that the challenged measures are not maintained under Article XX of the GATT 1994. Indonesia contrasts this with the general rule applicable in respect of a defence under Article XX in the context of a claim under Article XI of the GATT 1994, namely that the burden of proof is on the responding party.131 In Indonesia's view, Article 21.1 of the Agreement on Agriculture, thus, would apply as a conflict rule with the effect that Article 4.2 of the Agreement on Agriculture would prevail over, and, therefore, exclude the application of Article XI of the GATT 1994.
7.61.
In Brazil's view132, which is shared by the third parties that have commented on this issue133, there is no conflict between the two provisions.
7.62.
In deciding whether Article 4.2 of the Agreement on Agriculture applies to the exclusion of Article XI of the GATT 1994 by virtue of Article 21.1 of the Agreement on Agriculture we will be guided by an analysis of the text of each provision and the principle of harmonious treaty interpretation.134
7.63.
Article 21.1 of the Agriculture Agreement states:

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.

7.64.
We agree with Indonesia that Article 21.1 of the Agreement on Agriculture is a conflict rule similar to that set out in the General Interpretative Note to Annex 1A.135 Therefore, if there were a conflict between Article 4.2 of the Agreement on Agriculture and Article XI of the GATT 1994, Article 4.2 would indeed prevail and Article XI would not apply.
7.65.
We note that Indonesia's argument that there is a conflict is premised on what it considers as a difference in the allocation of the burden of proof in Article 4.2 of the Agreement on Agriculture and in Article XX as a defence to a claim under Article XI of the GATT 1994.
7.66.
We therefore, turn to the question whether the burden of proof in respect of Article XX of the GATT 1994 is reversed in Article 4.2 of the Agreement on Agriculture.
7.67.
The question of whether the burden of proof in respect of a possible justification under Article XX of the GATT 1994 is reversed under Article 4.2 of the Agreement on Agriculture, goes to the meaning of the footnote to the latter provision, which states:

These measures include quantitative import restrictions, variable import levies, minimum import prices, discretionary import licensing, non-tariff measures maintained through state-trading enterprises, voluntary export restraints, and similar border measures other than ordinary customs duties, whether or not the measures are maintained under country-specific derogations from the provisions of GATT 1947, but not 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. (emphasis added)

7.68.
As is uncontested by the parties, the second part of the footnote ("but…") limits the scope of Article 4.2 of the Agreement on Agriculture.136 Thus, Article 4.2 does not apply if a measure is listed in the first part of the footnote, and also fulfils the conditions of the second part of the footnote.137 It is furthermore, uncontested by the parties that Article XX of the GATT 1994 is one of the "other general non-agriculture specific provisions of GATT 1994" referred to in the second part of the footnote.138 Thus, if a measure is justified by Article XX of the GATT 1994, Article 4.2 of the Agreement on Agriculture will not apply. This view is in accordance with relevant case law as well as supported by the negotiating history of Article 4.2 of the Agreement on Agriculture.139
7.69.
Indonesia's argument that the burden of proof in respect of Article XX is different to that in footnote 1 to Article 4.2 of the Agreement on Agriculture is essentially based on the logic that a complaining party must prove all the elements of its claim under Article 4.2 of the Agreement on Agriculture. Since the question of a justification under Article XX of the GATT 1994 is part of determining the scope of Article 4.2 of the Agreement on Agriculture (through the reference in the second part of the footnote), in Indonesia's view, the complainant accordingly must prove that the measure at issue is not justified under any of the general, non-agriculture-specific provisions of the GATT 1994, including Article XX. According to Indonesia, it is the manner in which footnote 1 to Article 4.2 is structured, that alters the allocation of the burden of proving that a measure is justified through a general non-agriculture exception.140
7.70.
In assessing whether the burden of proof is reversed in Article 4.2 of the Agreement on Agriculture, we consider the following.
7.71.
First, in WTO dispute settlement, the burden of proof in respect of a defence under Article XX of the GATT 1994 is on the responding party.141
7.72.
Second, in the context of the footnote to Article 4.2, Article XX is part of the applicability and scope of Article 4.2, as opposed to providing for exceptions to a potential violation of that provision.142 In the same context, however, Article XX of the GATT 1994, still provides for exceptions, albeit not to violations of Article 4.2 of the Agreement on Agriculture itself, but of GATT provisions, in respect of which, measures are "maintained under".
7.73.
Third, there are certain provisions in the covered agreements that carve out specific measures from their scope.143 An example is Article XI:2 of the GATT 1994, which provides that the prohibition on quantitative restrictions in Article XI:1 does not extend to certain measures listed in Article XI:2; which means that Article XI:2 limits the scope of the obligation contained in Article XI:1.144 A party invoking Article XI:2 bears the burden of proving that the conditions set out in the provision are met.145 A further example is the Enabling Clause, which allows developed country Members to grant developing Members special and differential treatment without violating the most-favoured nation (MFN) principle. The Enabling Clause constitutes an exception, which rather than justifying a violation of the MFN principle, leads to its non-application.146 Consequently, based on the general rule of the allocation of the burden of proof147, a respondent raising a justification under this provision has the burden of proving it.148 These examples demonstrate that even where provisions operate explicitly as a "carve out" to another provision rather than as justification of a violation of that provision, the burden of proof may still fall on the responding party as the one benefitting from such "carve out".
7.74.
Fourth, Indonesia submits that there "are many examples of provisions in the covered agreements that convert exceptions under Article XX of the GATT 1994 into positive obligations, thereby shifting the burden of proof to the complainant".149 In our view this argument is misplaced. The second part of footnote 1 to Article 4.2 of the Agreement on Agriculture, contrary to the examples provided by Indonesia, does not create "positive obligations" that require a complaining party to prove a violation.
7.75.
Based on the foregoing, we consider that the underlying premise of Indonesia's argument, that there is a reversal of burden of proof in respect of Article XX in Article 4.2, is incorrect. We therefore, leave open the question of whether the alleged difference in the allocation of burden of proof would have amounted to a conflict within the meaning of Article 21.1. Since Article 21.1 does not apply, Article 4.2 of the Agreement on Agriculture does not exclude the application of Article XI of the GATT 1994.
7.76.
Having established that the two provisions are not mutually exclusive, we need to decide on the sequence of analysis of the two claims. We note Indonesia's argument that Article 4.2 of the Agreement on Agriculture is lex specialis because the goods at issue in this dispute are agricultural goods.150 We are not convinced that the scope of goods covered by a claim, in and of itself, decides over whether an agreement is more specific than another. As some third parties have pointed out, in terms of nature of substantive obligation violated (i.e. quantitative restriction), Article XI could be considered more specific than Article 4.2.151 In addition, we note the prominent role that Article XX plays in Indonesia's defence. Consequently, we consider appropriate to first assess Brazil's claims under Article XI:1, and then review Indonesia's defences under Article XX, before turning to Brazil's claims under Article 4.2 of the Agreement on Agriculture.

7.2.4 Order of analysis of amended measures

7.2.4.1 Introduction

7.77.
In section 2.2 above, we noted that the legal instruments underlying some of the measures at issue were either revoked or revoked and replaced after the establishment of the Panel. The two main legal instruments underlying these measures changed twice over the course of the proceedings.152 The second set was adopted shortly after the establishment of the Panel and before the first submission was due.153 The third set was adopted after the end of the period foreseen for answers to questions by the Panel following the first meeting of the Panel with the parties.154
7.78.
Based on the changes enacted through the third set of legal instruments, Indonesia takes the view that three of the challenged measures that existed under the first set of legal instruments have expired.155 Brazil contests the expiry claimed by Indonesia and presents arguments in support of its claims in respect of relevant provisions in the third set of legal instruments.156
7.79.
In response to a question from the Panel, Brazil explained that it requests the Panel "to make findings on the measures originally identified by Brazil at the time of establishment of the Panel" as well as "to make specific and additional findings on the measures identified in its panel request, in light of the amendments brought to the Indonesian regulatory framework, to the extent that they affect the original measures."157
7.80.
Indonesia, for its part, submits that while the Panel may make findings on expired measures, it cannot make any recommendation in their respect. Furthermore, as regards the review of measures as enacted through the new legal instruments, Indonesia submits that the Panel does not have jurisdiction to review them if they are not in essence the same as the measure set out in the panel request.158 According to Indonesia, where measures have expired, the essence has necessarily changed, with the consequence that relevant provisions in the new legal instruments are outside the Panel's terms of reference.159 While contesting the Panel's authority to review their WTO consistency, Indonesia does not contest that the Panel may take subsequent legislative changes into account as evidence.160

7.2.4.2 Jurisdiction with respect to the measures as enacted through the legal instruments adopted after the panel establishment

7.81.
We first address the issue of jurisdiction, cognizant that we can only rule on Brazil's claims of WTO inconsistency in respect of measures that are covered by our terms of reference. In addressing this issue, we are mindful of the difference between the measures at issue and the legal instruments embodying those measures.161
7.82.
In deciding whether the measures as incorporated in the second and third set of legal instruments are covered by our terms of reference, we recall that pursuant to Article 7.1 of the DSU, a panel's terms of reference are governed by the panel request, unless the parties agree otherwise.162 The panel request, thus, delimits the scope of a panel's jurisdiction.163 In accordance with Article 6.2, the matter referred to a panel by the DSU comprises the specific measure identified in the panel request and the legal basis of the complaint.
7.83.
We note that, Brazil as complaining party considers that the measures as incorporated in the third set of legal instruments continue to affect its rights under the same covered agreements as the measures included in the panel request. The claims developed in the second submission and during the second meeting with the Panel elaborate on the claims made in the first written submission.164
7.84.
To decide on whether we have jurisdiction on the measures as incorporated in the second and third sets of legal instruments, we will first examine Brazil's panel request, to determine whether its terms are broad enough to cover these legal changes. We then assess the relationship between the legal instruments identified in Brazil's panel request and the subsequent legal instruments. Lastly, we analyse the text contained in the relevant provisions of the subsequent legal instruments and determine how they affect the measures in light of Brazil’s panel request. In this regard, in line with the Appellate Body's ruling in Chile – Price Band System, we consider that we only have jurisdiction over such subsequent changes, if and to the extent that, the measures at issue, as enacted through the relevant legal instruments, remain in essence the same as those identified in the panel request.165
7.85.
Regarding the panel request, we note that Brazil's panel request contains a description of the challenged measures followed by an identification of the legal instruments through which each measure was enacted and an indication that the measure includes also "any amendments, replacements, related measures, or implementing measures". Thus, Brazil’s panel request is broad enough to cover such changes.
7.86.
Regarding the relationship between the different sets of legal instruments, we note that the second set revokes and replaces the first set; the second set is in turn, revoked and replaced by the third.166 They have identical scope and subject matter and follow the same structure. The three MoA regulations concern "the Importation of Carcass, meat and/or processed product thereof into the territory of the Republic of Indonesia".167 Likewise, the three MoT regulations concern "export and import provisions on animal and animal products".168 Thus, the subsequent legal instruments are replacements of the preceding legal instruments.
7.87.
Regarding the essence test, as noted above, it requires an analysis of the text contained in the relevant provisions in each subsequent legal instrument with a view to determining how they affect the measures in light of Brazil’s panel request. We will carry out this analysis and make a final determination on jurisdiction on a case-by-case basis, as we proceed with the review of the concerned measures in the relevant sections of this report.

7.2.4.3 Scope and sequence of the Panel's analysis

7.88.
Having set out our views on the relevant test for jurisdiction, we now turn to the question as to which sets of legal instruments to evaluate and in what sequence. In deciding this question we are mindful of the objectives of achieving prompt settlement of disputes and securing a positive solution to disputes encapsulated in Articles 3.3 and 3.4 of the DSU, as well as the importance of due process. Regarding the latter, we note that both parties have generally assured us that they have had enough opportunities to set out their arguments and submit the necessary supporting evidence to present their claims and defences.169
7.89.
As noted above, Brazil requests us "to make findings on the measures originally identified by Brazil at the time of establishment of the Panel" as well as "to make specific and additional findings on the measures identified in its panel request, in light of the amendments brought to the Indonesian regulatory framework, to the extent that they affect the original measures".170 Brazil has made arguments with respect to the measures as enacted through the second and third set of legal instruments, but did not make arguments in respect of the first set of legal instruments. This suggests that Brazil considers it possible and reasonable, in order to secure a positive solution to this dispute, to commence with the second set of legal instruments.
7.90.
Taking into account the above, we have decided as follows: Subject to the Panel having jurisdiction, we will start with a review of the measures as enacted by the second set of legal instruments. We will make findings on these measures before addressing the issue, where relevant, of whether they have expired as argued by Indonesia. We agree with Indonesia's reading of the relevant case law that the expiry of a measure would not prevent us from making findings on that measure.171 In light of Brazil's request in this respect, we consider that such findings are necessary to secure a positive solution to the dispute and for this reason, we review all measures and make findings irrespective of whether they have expired.
7.91.
Where Indonesia has so argued, we will examine the issue of expiry. We observe that the concept of "expiry" of a measure has had limited development in the case law so far.172 We infer from the relevant jurisprudence that a measure has expired if it has ceased to exist.173 We note, however, that in the cases decided so far, the measures at issue were terminated without the underlying legal instrument being replaced by a new one.174 In contrast, we are confronted with a situation where the legal instruments underlying the challenged measures have been replaced by new legal instruments. Mindful of the difference between measures and the legal instruments enacting them, we do not exclude that a measure may cease to exist even where a new legal instrument has replaced a preceding one. We will, therefore, review, on a case by case basis, as we examine the relevant measures, whether they have indeed ceased to exist. In this examination, we take into account as evidence relevant changes to the measures, as enacted through the third set of legal instruments.175
7.92.
We agree with Indonesia that the expiry of a measure, while not preventing a panel from making findings, may have a bearing on whether a panel can make a recommendation.176 In US – Certain EC Products the Appellate Body found that the panel erred in making a recommendation in respect of a measure that was no longer in existence.177 In subsequent cases, the Appellate Body provided guidance on specific situations where a panel may make a recommendation despite the expiry of a measure.178 Such specific situations concern subsidies or measures that are annually adopted within a framework of measures. We are of the view that none of the measures at issue fall within these specific situations. Accordingly, if we find that a measure has expired, we will not make a recommendation.
7.93.
In addition to reviewing the measures as enacted through the second set of legal instruments, we will, jurisdiction permitting, review Brazil's claims with respect to the measures as enacted through the third set of legal instruments, where Brazil has made arguments to this effect and where we have found that the measure has not expired.
7.94.
As a final remark, we observe, that the rapid succession of legislative changes has created a few challenges in these proceedings.179 As noted above, the parties have generally assured us that they have had enough opportunities to set out their arguments and submit the necessary supporting evidence to present their claims and defences.180 Nevertheless, we have been mindful of the particular importance of safeguarding due process under these unusual circumstances. At the same time, the same unusual circumstances have compelled us to exercise some flexibility in examining the parties' arguments, given their constant evolution in the course of the proceedings.

7.3 BACKGROUND ON THE MEASURES AT ISSUE

7.95.
Having provided explanations regarding the order of our analysis, we now turn to providing some explanations regarding the factual context of this dispute. Our description in this section is brief. More detailed descriptions of the relevant legal instruments as well as of specific factual aspects follow in the relevant sections on each measure.
7.96.
As noted above, this dispute concerns a number of measures affecting the importation of chicken meat and chicken products into Indonesia. To import such products into Indonesia, an importer has to apply for and obtain an import recommendation from the Minister of Agriculture (MoA Import Recommendation) and an import approval from the Minister of Trade (MoT Import Approval). The former is a necessary step in obtaining the latter. The relevant MoA and MoT regulations set out the procedural and substantive requirements for obtaining an MoA Import Recommendation and an MoT Import Approval. It is these two regulations that have been revoked and replaced twice over the course of the proceedings as discussed in section 7.2.4 above.
7.97.
Importers can only apply for an MoA Import Recommendation if the exporting country has been approved in advance as a "country of origin". Similarly, the relevant business unit in the exporting country is required to be pre-approved before an application for an MoA Import Recommendation can be made. The country of origin approval serves to verify animal health conditions for the relevant product in the exporting country. The business unit approval serves to verify the animal health, food safety and halal slaughtering conditions at the relevant business units in the country of origin.181
7.98.
In addition to having country of origin approval and business unit approval, importers must produce a number of other documents when applying for an MoA Import Recommendation.
7.99.
The chart below provides an overview of the basic features of Indonesia's import licensing regime. We provide further details along with additional charts in the relevant sections of this report.

Figure 1 Overview of Indonesia's import licensing regime

[SEE IMAGE IN SOURCE DOCUMENT]

7.100.
As is uncontested by Indonesia, there have been virtually no imports of chicken cuts (since 2006) and whole chicken (since 2009) into Indonesia, including from Brazil.182
7.101.
Furthermore, as is undisputed between the parties, a feature of Indonesia's chicken market is that most of the chicken meat consumed in Indonesia is sold in the traditional markets (also called "wet markets").183 Moreover, most of the chicken meat sold in these markets is from freshly slaughtered chickens. All chicken meat, whether imported into or produced in Indonesia, must be halal.
7.102.
We now turn to assess Brazil's claims in respect of the six individual measures Brazil has described in its first written submission.

7.4 INDIVIDUAL MEASURE 1: POSITIVE LIST REQUIREMENT

7.4.1 Introduction

7.103.
The first measure concerns provisions in the relevant MoA and MoT regulations governing the importation of meat, which prescribe the type of carcass for which an importer may obtain an MoA Import Recommendation and an MoT Import Approval. Chicken cuts and other chicken products cannot be the subject either of an MoA Import Recommendation or an MoT Import Approval, because they are not listed in the relevant appendices184 of the respective regulations.185 As noted in section 2.1 above, Brazil, in its panel request, has described this measure as an import prohibition on certain products; in the course of the proceedings, Brazil referred to this measure as the "positive list requirement", the term also used by Indonesia.186 We do likewise.
7.104.
As we explained above187, the legal instruments enacting the positive list requirement have been revoked and replaced twice since panel establishment. The table below sets out relevant provisions in the three different sets of legal instruments as they will be discussed in this section.

Table 2 Relevant provisions regarding the positive list requirement

First set of legal instrumentsSecond set of legal instrumentsThird set of legal instruments
MoA 139/2914 (Exhibit BRA-34)Art. 8 Requirements for meat … and carcass and/or meat from other than bovine, as well as its processed as Listed in Appendix 2 which are integral parts of this Ministerial Regulation. MoA 58/2015 (Exhibit BRA-01/IDN-24)Art. 7 In addition to the requirements referred in Article 4, Article 5, and Article 6, the importation of carcass, meat and/or the processed product thereof must comply with the requirements of: a. Type of carcass, meat and the processed product thereof; Art. 8 … (2) Types of non-cattle carcass and the processed product thereof as referred to in Article 7 letter a, are included in Attachment II which is an inseparable part of this Ministerial Regulation. MoA 34/2016 (Exhibit BRA-48/IDN-93)Art. 7 … (2) …type of carcass, meat, and/or offal other than cattle including its processed products … are listed in Annex II which is an integral part of this Ministerial Regulation. (3) The type of carcass … other than cattle which is not listed in … Annex II … may still be granted recommendation, as long as it meets the requirements of safe, healthy, wholesome and halal ….
MoT 46/2013 (Exhibit BRA-42)Art. 2 … (2) The Type of Animal and Animal Product that can be imported as included in Appendix I and Appendix II is an integral part of this Ministerial Regulation. Article 11 (2) To obtain Import Approval … company that will import Animal and/or Animal Product must submit application by attaching: (a) recommendation from the Minister of Agriculture or official appointed by the Minister of Agriculture, for importing Animal and fresh Animal Product as stated in Appendix II of this Ministerial Regulation; MoT 05/2016 (Exhibit BRA-03)Art. 7 … (2) The type of Animal and Animal Product that can be imported shall be as per Appendices II, III, and IV forming integral part hereof. Article 10 (2) To obtain Approval to Import … the company shall submit the application … by attaching: … (e) Recommendation of the Minister of Agriculture or official so appointed by the Minister of Agriculture, for Import of Animal and Animal Product as per Appendices III and IV hereto; MoT 59/2016 (Exhibit IDN-109)Art. 7 … (2) The types of Animals and Animal Products which are limited for importation are as included in Annex II and III, which is an integral part of this Minister Regulation. Art 11 (1) To obtain the Import Approval … for the importation of Animals and Animal Products … the API holder company... shall submit an application … by attaching: … (e) Recommendation from the Minister of Agriculture or an official appointed by the Minister of Agriculture, for the Import of Animals and Animal Products as listed in Annex II and Annex III in which an integral part of this Minister Regulation; Article 29 Animal and animal products that are not contained in the attachment of this Minister Regulation may be imported after obtaining Import Approval from Import Director by attaching Recommendation as referred to in Article 11 paragraph (1) letter e or f.

7.105.
As explained in section 7.2.4.3 above, we will first analyse the measure as enacted through the second set of legal instruments (i.e. regulations MoA 58/2015 and MoT 05/2016), the version Brazil refers to in its first written submission. We then move on to examine the relevant provisions of the third set of legal instruments.

7.4.2 Panel's analysis of the positive list requirement as enacted through MoA 58/2015 and MoT 05/2016

7.106.
We note that the relevant provisions of regulations MoA 58/2015 and MoT 05/2016 are virtually identical to those of MoA 139/2014 and MoT 46/2013, which were in force at the time of the panel establishment (i.e. first set of legal instruments). Thus, given that the measure remains in essence the same, we consider that we have jurisdiction to review its WTO consistency.188
7.107.
Brazil contends that the positive list requirement constitutes a violation of Article XI of the GATT 1994 and Article 4.2 of the Agreement on Agriculture.189 Indonesia does not dispute that MoA 58/2015 and MoT 05/2016 establish a prohibition on the importation of chicken cuts.190 Indonesia however submits that the measure is justified under Article XX(d) of the GATT 1994.191

7.4.2.1 Preliminary issue of fact – whether prepared or preserved chicken meat can be imported into Indonesia

7.108.
Before we address the parties' arguments regarding the merits of Brazil's claims we first need to address a factual issue. The issue is whether prepared or preserved chicken meat can be imported into Indonesia. While Brazil claims it cannot, Indonesia submits that it can.
7.109.
We recall that, in our preliminary ruling set out in section 7.1.2.4 above, we addressed a jurisdictional issue regarding prepared or preserved chicken meat. More specifically, we found that our terms of reference covered Brazil's claims on the positive list requirement in respect of prepared or preserved chicken meat.
7.110.
Following our ruling, Indonesia, in its second written submission, asserted that prepared or preserved chicken meat could be imported into Indonesia. Indonesia's assertion was notably based not on the above set of legal instruments, but on a different regulation. Indonesia argued that pursuant to MoT 87/2015, prepared or preserved chicken meat could be imported into Indonesia.192
7.111.
We clarified the issue through a number of questions to the parties.193 Based on their responses and comments, our understanding is as follows: MoT 87/2015194 is a regulation that imposes a number of conditions on certain products upon importation; for example, the regulation limits the choice of ports of destination in Indonesia for the concerned products.195 The regulation applies to some 800 tariff lines, including certain processed animal products such as prepared or preserved chicken meat. However, the fact that a good is subject to the import conditions set out in MoT 87/2015 does not mean that it cannot at the same time be subject to other import regulations, including that its importation may be prohibited altogether by virtue of provisions set out elsewhere.196 This is the case with respect to the product at issue in this dispute. Prepared or preserved chicken meat is not listed in the relevant appendix of MoA 58/2015 or in that of MoT 05/2016. Thus, its importation is not allowed by virtue of those regulations.197
7.112.
We therefore find that notwithstanding the fact that prepared or preserved chicken meat is covered by MoT 87/2015, it cannot be imported pursuant to MoA 58/2015 and MoT 05/2016.

7.4.2.2 Whether the positive list requirement is inconsistent with Article XI of the GATT 1994

7.113.
Brazil submits that the positive list requirement prohibits the importation of chicken cuts and other prepared or preserved chicken meat and is, therefore, contrary to Article XI of the GATT 1994.198 As noted above, Indonesia does not dispute that the positive list requirement establishes a prohibition on the importation of chicken cuts and offers no arguments under Article XI.199
7.114.
Article XI:1 of the GATT 1994 reads as follows:

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 contracting party [Member] on the importation of any product of the territory of any other contracting party [Member] or on the exportation or sale for export of any product destined for the territory of any other contracting party [Member].

7.115.
Accordingly, we need to assess the following two questions with regard to the positive list requirement: (1) whether it is a prohibition or restriction on the importation of chicken meat and chicken products, and (2) whether it is made effective through quotas, import or export licences or other measures.
7.116.
As regards the first question, the Appellate Body has identified the meaning of the term "prohibition" as a "legal ban on the trade or importation of a specified commodity".200 In our view, the positive list requirement qualifies as a "legal ban" because the direct legal consequence of not being listed as a product is that importation of that product is not allowed. The positive list requirement, therefore, is a prohibition within the meaning of Article XI.
7.117.
As regards the second question, the Appellate Body in Argentina – Import Measures analysed the meaning of measures "made effective" and concluded that it covers "measures through which a prohibition or restriction is produced or becomes operative".201 We recall that the positive list requirement means that no import recommendation and/or no import approval are granted if and when a product is not contained in the relevant appendices.202 The import approval operates as a licence in that it constitutes the permission required to import chicken meat and chicken products into Indonesia.203 Thus, the positive list requirement is made effective through a licence.
7.118.
We therefore conclude that the positive list requirement is inconsistent with Article XI of the GATT 1994.

7.4.2.3 Whether the positive list requirement is justified under Article XX(d) of the GATT 1994

7.119.
Indonesia raises a defence under Article XX(d) of the GATT 1994, submitting that the positive list requirement is necessary to secure compliance with Indonesia's laws and regulations dealing with halal requirements, as well as deceptive practices and customs enforcement relating to halal.204 Indonesia's concern is that chicken parts would be sourced from non–halal slaughtering houses and passed off as halal. Indonesia does not put forward arguments to justify the prohibition on prepared or preserved chicken meat.205
7.120.
Brazil considers that the positive list requirement is not justified206 and asserts, inter alia, that halal certification would be a less trade-restrictive alternative measure.207
7.121.
Article XX states in its relevant part:

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 prevent the adoption or enforcement by any contracting party [Member] of measures:

(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;

7.122.
In order to assess Indonesia's defence, we need to proceed in two steps.208 First, we need to assess whether the measure is provisionally justified under subparagraph (d) of Article XX, as set out above. If that is the case, we go on to examine whether the measure satisfies the requirements of the chapeau of Article XX. Furthermore, we note that Indonesia, as the party asserting the defence, generally has the burden of proof.209
7.123.
We turn to assess whether the positive list requirement is provisionally justified under subparagraph (d) of Article XX. In line with relevant guidance provided by the Appellate Body210, we consider that this assessment requires us to address the following two questions: (1) whether the positive list requirement is designed to secure compliance with laws or regulations that are not themselves inconsistent with some provision of the GATT 1994; and (2) whether the positive list requirement is necessary to secure compliance with those laws and regulations.

7.4.2.3.1 Whether the positive list requirement is designed to secure compliance with laws or regulations that are not themselves inconsistent with the GATT 1994

7.124.
Turning to the first of these questions, we note that Indonesia refers to three different laws, namely Law 18/2009 (Animal Law), Law 33/2014 (Halal Law), and Law 8/1999 (Consumer Law).211 Brazil has not called into question the consistency of these laws with the GATT 1994, and we agree with Indonesia that it must, therefore, be presumed.212
7.125.
In terms of specific provisions, Indonesia refers to a provision of Law 18/2009 that addresses the Indonesian authorities' duty to "supervise, inspect, examine, standardize, certify and register animal products" in order "to secure safe, healthy, intact and rightful animal products".213 In the same law, indeed the same article, Indonesia points to the requirement for imported products to have a "rightful certificate".214 Indonesia also refers to the obligation "to provide honest information about the condition and quality of products", which Law 8/1999 imposes on entrepreneurs.215 In terms of specific halal requirements in Indonesian law, Indonesia limits itself to a general reference to "the process of certification" in Law 33/2014.216
7.126.
Indonesia explains that the positive list requirement "served to ensure the traceability of imported chicken meat and chicken products to specific foreign establishments that obtained halal certificates".217 Elsewhere, Indonesia, in referring to the preamble of MoA 58/2015 asserts that that regulation "was created 'in view of' certain Indonesian laws, including [the three laws referred to above]" and that its stated purpose is to provide the legal basis to ensure the compliance with safety, healthy, wholesome and halal requirements.218
7.127.
The Appellate Body has described the relevant test that we need to apply as "an initial examination of the relationship between the inconsistent measure and the relevant laws or regulations" which requires a panel to "scrutinize the design of the measures sought to be justified".219 The Appellate Body has further clarified that the standard for ascertaining whether such a relationship exists is whether the assessment of the design of the measure reveals that the measure is not incapable of securing compliance with the relevant laws and regulations in Indonesia.220 Finally, we note that the Appellate Body has described this test as "not… particularly demanding", in contrast to the requirements of the next step of the analysis, namely the necessity test.221
7.128.
With this in mind we turn to analyse Indonesia's arguments. In our view, the provisions that Indonesia refers to, as well as its explanation on traceability, at least when taken at face value, do not directly explain how the positive list requirement was designed to ensure compliance with Indonesia's stated concern that non-halal chicken cuts would be passed off as halal. We consider that the provisions referred to in the relevant laws are geared towards allowing the importation of animal products into the country rather than banning them as is effectively the case for chicken cuts, prepared or preserved chicken meat (and other products).222 Certification and traceability are tools whose use is premised on importation being possible in the first place, as is the case for whole chicken. Chicken cuts that cannot be imported into Indonesia, neither require certification nor need to be traced. In other words, the provisions referred to above as well as Indonesia's explanation regarding traceability, when taken at face value, do not seem to account for the ban that the positive list requirement puts in place.
7.129.
However, Indonesia has also described a factual background of certain incidents allegedly involving importation into Indonesia of non-halal chicken cuts. Against this background we understand Indonesia to suggest that the ban on chicken cuts was adopted because certification and traceability could not ensure what Indonesia seeks to ensure, namely that all imported chicken products are halal.223 It may be possible therefore, to understand Indonesia's arguments above as focusing on demonstrating how the regulatory system in Indonesia is generally geared towards ensuring the halalness of meat products, including imported meat products. The specific measure of the positive list requirement could then be explained as working towards the same objective, namely to ensure halalness in the specific factual circumstances that Indonesia referred to.
7.130.
As regards these specific factual circumstances, we note the following. Indonesia suggests that there were a number of incidents of imported non-halal meat being passed off as halal.224 As evidence of this Indonesia submits a letter from the Indonesian Minister of Agriculture to his US counterpart dated 2002.225 In this letter reference is made to three incidents. One is described as involving imports of chicken quarter legs "illegally" entering the Indonesian market. The chicken legs were produced by a US company that was known to have only one halal certified food processing plant. Indonesia, elsewhere, describes the shipment in question as "part halal, part non-halal" and explains that it was this incident that led to the adoption of the positive list requirement and, therefore, to the ban on chicken cuts in 2006.226 The second incident involved a shipment of chicken cuts that were destined for Russia, but ended up in the Indonesian market, which, as Indonesia explains elsewhere, "caused unrest amongst Muslim consumers as they considered those products were not halal".227 The third reference in the Indonesian Minister's letter to his US counterpart is to a US meat producer that has "firmly stated" that its products imported into Indonesia, which were accompanied by a halal certificate, have never been produced under halal procedures. The letter neither identifies the company in question nor offers any other factual information in this regard.
7.131.
We have some doubts with regard to these explanations. First of all, if the risk of non-halal chicken cuts being passed off as halal exists, as Indonesia argues, why would the same risk not exist with regard to whole chicken, which is not prohibited? Indonesia explains that there were no incidents involving whole chicken and that it addresses problems as they arise on a case-by-case basis.228 We are not persuaded by this argument, as we do not see why non-halal whole chicken could not as easily be passed off as halal as in the case of chicken cuts.229 Second, we are not sure about the extent to which the incidents mentioned above involved shipments being passed off as halal, rather than simply shipments, which were never meant to be imported into Indonesia and, for that reason, should have been stopped upon importation.230 Third we note that in Indonesia's own description, it is an incident that dates back to 1999, which led to the adoption of a regulation in 2006.231 This means that, Indonesia decided to put in place a measure after as long a period as seven years to address a risk, which moreover does not seem to have materialized again in the intervening years.
7.132.
The above factors cast some doubt on the link claimed by Indonesia between the incidents and the putting in place of the positive list requirement. However, we are mindful that our task is not to evaluate historic facts, but to assess whether a measure, independent of the reasons cited for its adoption, can objectively be considered to have a relationship with the laws and regulations in question. As noted above, this is the case if the measure is not incapable of securing compliance with them. We found above that the positive list requirement has the effect akin to a ban as it effectively prohibits import of chicken cuts and other chicken products into Indonesia. We consider that a ban is not incapable of securing halalness insofar as it excludes any risk of non-halal products being imported into the country. That it also excludes products that are halal, is a different issue to be addressed in the level of necessity. We recall that the Appellate Body has highlighted a panel's duty to structure its analysis in such a way that it does not "truncate [that analysis] prematurely and thereby foreclose consideration of crucial aspects of the respondent's defence relating to the 'necessity' analysis".232
7.133.
For these reasons we find that the positive list requirement is designed to secure compliance with the halal requirements laid down in Indonesian law.

7.4.2.3.2 Whether the positive list requirement is necessary to secure compliance with the relevant laws and regulations in Indonesia

7.134.
The second question we need to address to establish whether the positive list requirement is provisionally justified under Article XX(d) of the GATT 1994, is whether that measure is necessary to secure compliance with Indonesia's halal requirements.
7.135.
In line with the Appellate Body's guidance in Colombia – Textiles, the assessment of the "necessity" of a measure "entails an in-depth, holistic analysis" of the relationship between the measure and the objective it pursues, which in the current dispute, is to secure compliance with Indonesia's halal requirements.233
7.136.
The test involves a process of "weighing and balancing" a series of factors, including (1) the importance of the objective, (2) the contribution of the measure to that objective, and (3) the trade-restrictiveness of the measure.234 In most cases, a comparison between the challenged measure and (4) possible alternatives should then be undertaken. The burden to identify any alternative measures that would be less trade-restrictive is on the complaining party.235 The Appellate Body has described the process of weighing and balancing these factors as:

a holistic operation that involves putting all the variables of the equation together and evaluating them in relation to each other after having examined them individually, in order to reach an overall judgement.236

7.137.
Thus, we examine each of the four factors individually before reaching an overall conclusion on whether the measure is necessary.
7.138.
Turning to the first factor – the societal value at stake – a panel needs to assess the relative importance of the interests or values furthered by the challenged measure.237 The more vital or important the interests or values that are reflected in the objective of the measure are, the greater their weight is in the overall weighing and balancing exercise.238
7.139.
Indonesia emphasizes the importance of halalness for its population which is predominantly Muslim.239 Brazil acknowledges that importance and emphasizes in turn that it does not take issue with Indonesia's halal requirements.240 We see no disagreement between the parties on this issue. To us, there is no doubt that halalness is of great importance to the Indonesian population and, thus, represents a societal value of considerable weight.
7.140.
Turning to the second factor – contribution – a panel must assess "in a qualitative or quantitative manner, the extent of the measure's contribution to the end pursued".241 As the Appellate Body observed, "[t]he greater the contribution, the more easily a measure might be considered to be 'necessary'".242 However, the Appellate Body also pointed out that since a measure's contribution is only one component of the necessity calculus under Article XX, the assessment of whether a measure is "necessary" cannot be determined by the degree of contribution alone, but will depend on the manner in which the other factors of the "necessity" standard inform the analysis.243
7.141.
Based on this guidance, we apply a qualitative assessment of the contribution that the ban on chicken cuts makes in ensuring halalness of chicken meat in Indonesia. On the one hand, a ban on chicken cuts contributes to ensure respect for halal requirements insofar as it effectively reduces the risk of non-halal imported chicken cuts being passed off as halal to something close to zero: where no imported chicken cuts can enter the country, non‑halal chicken cuts cannot be passed off as halal. We note in this context that Indonesia refers to its level of protection in respect of halalness as "zero tolerance" or "zero risk".244 We point out, however, that there is some doubt as to the extent of the risk of non-halal chicken cuts being passed off as halal, in the first place. As seen above, Indonesia points to only three incidents, not all of which necessarily demonstrate the risk in question and which, furthermore, date back to 1999. Moreover, Indonesia has not been able to explain why no such risk would exist for whole chicken.
7.142.
On the other hand, a ban prevents all imported chicken cuts from entering the country, including those that are in full compliance with the Indonesian halal requirements. As noted above, Indonesia's regulatory system is geared towards allowing halal products to enter the country. Viewed from this perspective, the ban makes no contribution and is in fact counterproductive to allowing Indonesian consumers to buy imported halal chicken cuts.
7.143.
These considerations bring us to the third factor to be considered in the context of a "necessity" assessment, namely the trade-restrictiveness of the measure. We note that, similar to the above analysis on contribution, a panel must assess the degree of trade-restrictiveness and may do so in a qualitative or quantitative manner.245 Furthermore, following the same logic as above, the less trade-restrictive a measure is the better its chances are of being considered necessary, bearing in mind, however, that trade-restrictiveness is only one component in the overall analysis.246
7.144.
Indonesia submits that "the fact that the measure imposed a prohibition on the importation of certain specific categories of chicken products, which undermined Indonesia's objective, does not mean that the measure was a ban". Indonesia adds that "nothing prevented Brazilian exporters from exporting to Indonesia whole carcasses of chicken, provided that Indonesia's halal requirements were fulfilled". In Indonesia's view, therefore, the measure is not highly trade-restrictive.247 We are somewhat puzzled by this argument given that it is Indonesia's own legislation that applies two different measures, by allowing one product and banning the other.
7.145.
A ban, as the panel in Brazil – Retreaded Tyres put it, is "as trade-restrictive as can be".248 It thus weighs heavily against considering a measure necessary.249 The Appellate Body noted as much in Brazil – Retreaded Tyres by pointing out that

[W]hen a measure produces restrictive effects on international trade as severe as those resulting from an import ban, it appears to us that it would be difficult for a panel to find that measure necessary unless it is satisfied that the measure is apt to make a material contribution to the achievement of its objective.250

7.146.
We note that the Appellate Body in this context rejected an argument made by Brazil that the high level of protection sought through the ban meant that even a marginal or insignificant contribution should be considered necessary.251
7.147.
Applying this guidance to the present case, we note that our earlier assessment of the contribution of the measure has been a "mixed bag": the ban prevents the importation of non-halal chicken meat, but also the importation of halal chicken meat – thus, it makes a contribution regarding non-halal meat, but no contribution regarding halal meat. The actual risk of non-halal meat being passed off as halal, to the extent it has been proven to have materialized, dates back to 1999. Indonesia pursues a zero risk policy, but according to the Appellate Body's pronouncement cited in paragraph 7,146 above, that does not mean that any kind of contribution must be considered necessary.
7.148.
Without reaching any preliminary conclusion on necessity252, we turn to the fourth factor to be considered in the overall assessment of necessity, namely the question of a less trade-restrictive alternative measure.
7.149.
Brazil submits that a less trade-restrictive alternative measure would be certification in slaughterhouses in the exporting countries.253 Indonesia submits that Brazil, in referring to this less trade-restrictive measure in just two sentences, has not met its burden of proof. Furthermore, Indonesia seems to suggest that Brazil cannot propose, as a less trade-restrictive alternative, a measure that already exists.254
7.150.
We note that a panel must compare the challenged measure and possible alternative measures that achieve the same level of protection while being less trade restrictive.255 The Appellate Body has explained that an alternative measure must be "reasonably available" and, thus, may not impose "an undue burden on that Member, such as prohibitive costs or substantial technical difficulties".256 Indonesia is correct in pointing out that the burden of proving the existence of an alternative measure that satisfies the aforementioned elements falls on Brazil as the complainant.257 We will, therefore examine whether this burden has been met.
7.151.
Brazil refers to halal certification as the less trade-restrictive alternative. We note that halal certification already exists in Indonesian law (both for domestic and imported products). At the time that is relevant to assessing this measure, halal certification of imported meat products was a requirement set out in the relevant legislation.258 Furthermore, Law 33/2014, which, among other things, refers to halal certification, had already been put in place.259 We do not understand Brazil to be proposing certification procedures other than those that are already in place.
7.152.
Thus, in our view, the issue is not whether Brazil has met its burden of proof. It clearly has since the content of the proposed alternative measure is clear and there is no doubt that it is reasonably available. The issue rather is whether Brazil can propose as a less trade-restrictive alternative, a measure that Indonesia already has in place. We understand Indonesia to suggest that it cannot.260 The relevant jurisprudence that Indonesia refers to in this context is Brazil – Retreaded Tyres. In that dispute the panel and the Appellate Body rejected some of the alternative measures proposed by the complainanton the grounds that they were already in place as part of a comprehensive strategy. The Appellate Body reasoned:

Substituting one element of this comprehensive policy for another would weaken the policy by reducing the synergies between its components, as well as its total effect.261

7.153.
In our view, the situation in the present case differs from the facts at issue in Brazil – Retreaded Tyres. At issue in Brazil – Retreaded Tyres was a measure that already applied to the product in question. Here, while certification already exists in Indonesian law, it is not a measure that already applies to the banned products. As noted above, chicken cuts that cannot be imported into Indonesia, neither require certification nor need to be traced. A product cannot be certified and banned at the same time. Thus, in respect of the banned products subject to the measure at issue, certification is a new measure, not one that already exists as part of a comprehensive policy. We therefore, see no reason why Brazil should be prevented from proposing certification as an alternative measure. Whether that measure achieves Indonesia's objective of ensuring halalness, bearing in mind Indonesia's strict level of protection, is a different question.
7.154.
On that question, we consider relevant the submissions Indonesia made in the context of explaining the latest developments on the positive list requirement as they have occurred through the adoption of MoA 34/2016 and MoT 59/2016.262 As we discuss in more detail below, Indonesia submits that through these latest legal instruments the positive list requirement has been terminated.263 What matters to the question discussed here is the reason that Indonesia puts forward to explain the alleged termination of the positive list requirement. According to Indonesia, it is the "more comprehensive certification requirements over a staggered period of time", which Law 33/2014 put in place, that led the relevant Indonesian authorities to consider that "the halalness of imported products, in particular, chicken cuts and processed products [could be protected] even without the positive list".264 In other words, Indonesia considers that its current certification procedures are such that the positive list requirement is no longer necessary.
7.155.
We note that the certification procedures that Indonesia refers to in making this argument, were already in place when the positive list requirement was enacted through MoA 58/2015 and MoT 05/2016. As regards specifically imported chicken products, certification through a national body accredited by the MUI has been required since 2001. It is our understanding that it is not envisaged that accreditation will change with the establishment of a new certification agency as provided for in Law 33/2014.265 Given this, we agree with Brazil, and we do not see why these certification procedures that Indonesia itself considers sufficient to meet its strict level of protection in respect of ensuring halalness, would not constitute a less trade-restrictive alternative measure for the purposes of the present "necessity" assessment.266
7.156.
Having examined the four factors of the "necessity" test individually, we now turn to the overall assessment of all these factors considered together. In weighing and balancing all factors together in a holistic assessment, we acknowledge the great importance that Indonesia attributes to halalness and we recall the trade-restrictiveness of the measure and the ambivalent nature of the contribution. Mindful of these factors and given that an alternative less-trade-restrictive measure exists that equally meets Indonesia's objective, we conclude that the measure does not comply with the requirements of the necessity test.
7.157.
We therefore find that the positive list requirement is not necessary pursuant to Article XX(d). As this means that the measure does not meet the requirements of a provisional justification under Article XX(d), there is no need for us to further examine whether it meets the requirements of the chapeau.
7.158.
We therefore conclude that the positive list requirement is inconsistent with Article XI and not justified under Article XX(d) of the GATT 1994.

7.4.2.4 Whether the positive list requirement is inconsistent with Article 4.2 of the Agreement on Agriculture

7.159.
We recall that the aim of the dispute settlement mechanism is to "secure a positive solution to a dispute" (Article 3.7 of the DSU) and that our duty, according to Article 11 of the DSU is to "make such other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements". As the Appellate Body has observed, it is on the basis of these provisions, that panels may exercise judicial economy.267 The Appellate Body has also explained that the principle of judicial economy "allows a panel to refrain from making multiple findings that the same measure is inconsistent with various provisions when a single, or a certain number of findings of inconsistency, would suffice to resolve the dispute".268 Thus, panels need address only those claims "which must be addressed in order to resolve the matter in issue in the dispute"269, and panels "may refrain from ruling on every claim as long as it does not lead to a 'partial resolution of the matter'".270
7.160.
On the basis of the above, having found a violation of Article XI of the GATT 1994, we consider that it is not necessary to address Brazil's claim under Article 4.2 of the Agreement on Agriculture in order to secure a positive solution to this dispute.

7.4.3 Panel's analysis of the relevant provisions of MoA 34/2016 and MoT 59/2016

7.161.
Our findings above apply to the positive list requirement as enacted through MoA 58/2015 and MoT 05/2016. As noted at the beginning of this section, in the course of the proceedings, these two legal instruments were revoked and replaced by MoA 34/2016 and MoT 59/2016.
7.162.
With this change, the parties' arguments have evolved. Indonesia submits that the positive list requirement has expired.271 Brazil disagrees.272 We will, therefore, examine, whether the positive list requirement has expired.

7.4.3.1 Whether the positive list requirement has expired by virtue of MoA 34/2016 and MoT 59/2016

7.163.
As discussed in section 7.2.4.3 above, we agree with Indonesia that the expiry of the measure at issue may have a bearing on whether we can make a recommendation. As we stated there, we consider that a measure has expired if it has ceased to exist. We thus need to examine whether the positive list requirement has ceased to exist by virtue of relevant provisions adopted in MoA 34/2016 and MoT 59/2016.273 We note that Indonesia as the party that asserts expiry bears the burden of proving this.274
7.164.
We refer to the relevant provisions as set out in Table 2 above. Indonesia argues that by virtue of Article 7(3) of MoA 34/2016 and Article 29 of MoT 59/2016 chicken products may be imported into Indonesia even though they are not on the list, provided they meet the requirement of being safe, healthy, wholesome, and halal.275 Brazil submits that the sole fact that the lists/appendices still exist is sufficient proof that Indonesia has not revoked the positive list, pointing also to language that suggests that entitlement to be imported is derived from the lists.276 Brazil furthermore reads Article 7(3) as providing Indonesian authorities with full discretion on whether chicken products can be imported, concluding that that clause "does not indicate that the positive list is no longer in force but rather that these requirements are additional to that imposed by the positive list".277
7.165.
We recall that the measure that is at issue in this dispute and that we have examined is the requirement for chicken meat and chicken products to be listed in the relevant appendices of Indonesia's regulations governing the importation of animal products, in order for their importation to be permitted. In examining whether this measure has ceased to exist, we note, first of all, that the positive list as such still exists. It is still in both regulations and still refers to whole chicken only.278 We are mindful that the measure at issue is not the list as such, but rather the requirement to be on that list in order to be allowed to be imported. However, the continued existence of the positive list raises doubts as to what its role is in determining which products may be allowed into Indonesia. As Brazil points out, the wording of the headings describing the appendices has not changed from previous versions. They still describe those appendices as clearly establishing that only the products listed in those appendices are entitled to be imported into Indonesia.279 Similarly, there are other provisions that have not been changed and, therefore, still refer to the list as the authority for whether products may be imported. Article 7 of MoT 59/2016, for example, prominently states the principle of imports being limited to certain products without mentioning or referring to what is now stated in Article 29.280 Most importantly, however, Article 29 stipulates the need to obtain a recommendation "as referred to in Article 11 paragraph (1) letter e", which, in turn, refers to recommendations for products "as listed". Thus, this provision, on its face, refers to an MoA Import Recommendation obtained for products listed in Appendix III, (i.e. the positive list) but not to a recommendation obtained for products not listed in that appendix. Indonesia essentially suggests not to read Article 11 paragraph (1) subparagraph (e) too literally but to focus on the "operative part" of Article 29 which is about the need to have an MoA Import Recommendation.281
7.166.
In light of the plain meaning of Article 11 paragraph (1), subparagraph (e), therefore, we conclude that the positive list requirement continues to apply in the same manner. We further consider that because the positive list requirement continues to apply in the same manner, Article 7(3) does not have any application.
7.167.
We therefore find that the positive list requirement has not ceased to exist, and consequently that this measure has not expired.

7.4.3.2 Whether the positive list requirement as enacted through the relevant provisions of MoA 34/2016 and MoT 59/2016 is inconsistent with Article XI of the GATT 1994 and Article 4.2. of the Agreement on Agriculture

7.168.
As we indicate in section 7.2.4.3 above, Brazil requests the Panel to review its claims with regard to the positive list requirement as enacted through MoA 34/2016 and MoT 59/2016.
7.169.
We found above, that by virtue, in particular of Articles 11(1)(e) and 29 of MoT 59/2016 the positive list requirement continues to apply in the same manner as it applied by virtue of the relevant provision in MoA 58/2015 and MoT 05/2016. Given the unchanged, continued application of the positive list requirement, we consider that the measure remains in essence the same and that, therefore, we have jurisdiction to review its WTO consistency.
7.170.
Furthermore, the unchanged, continued application of the positive list requirement leads us to the conclusion that our findings above continue to apply in the same manner. Thus, the positive list requirement as enacted through MoA 34/2016 and MoT 59/2016 is inconsistent with Articles XI:1 and is not justified under Article XX(d) of the GATT 1994.
7.171.
As regards Article 7(3) of MoA 34/2016, we found above, that given the continued application of the positive list requirement, this clause does not find any application. Therefore, we will not address the consistency of Article 7(3) with Article XI of the GATT 1994.
7.172.
As with our findings above regarding the measure as enacted through MoA 58/2015 and MoT 05/2016, we apply judicial economy to Brazil's claim under Article 4.2. of the Agreement on Agriculture.

7.4.4 Conclusion

7.173.
To summarize, we find that the positive list requirement as enacted through MoA 58/2015 and MoT 05/2016 is inconsistent with Article XI of the GATT 1994 and not justified under Article XX(d) of the GATT 1994. Having found that the positive list requirement, as enacted through MoA 58/2015 and MoT 05/2016, is inconsistent with Article XI of the GATT 1994, we consider that it is not necessary to address Brazil's claim under Article 4.2 of the Agreement on Agriculture in order to secure a positive solution to this dispute.
7.174.
We further find that the positive list requirement has not ceased to exist by virtue of the relevant provisions in MoA 34/2016 and MoT 59/2016.
7.175.
Furthermore, given that the positive list requirement, as enacted through the relevant provisions of MoA 34/2016 and MoT 59/2016, continues to apply in the same manner as enacted through MoA 58/2015 and MoT 05/2016, our findings on Article XI and XX(d) of the GATT 1994, in respect of the positive list requirement as enacted through MoA 58/2015 and MoT 05/2016, therefore, also apply to this measure as enacted through MoA 34/2016 and MoT 59/2016.

7.5 INDIVIDUAL MEASURE 2: INTENDED USE REQUIREMENT

7.5.1 Introduction

7.176.
We now turn to the second of the individual measures that Brazil challenges. This measure, which is contained in the relevant MoA regulation,282 consists in limiting the uses of imported chicken meat products in the Indonesian market to specific "intended uses" as identified in the relevant MoA regulation.283 The allowed use is spelled out in the MoA Import Recommendation; sanctions are provided in case of non-observance. The parties have referred to this measure as the "intended use requirement", a term which we hereby adopt.284
7.177.
As noted above, the MoA regulation enacting the intended use requirement has been revoked and replaced twice since panel establishment.285 The table below sets out relevant provisions in the three successive versions of the MoA regulation, as they will be discussed in this section.

Table 3 Relevant provisions in the three successive versions of the MoA regulation

First set of legal instrumentsSecond set of legal instrumentsThird set of legal instruments
MoA 139/2014 (Exhibit BRA-34)Art. 30 Recommendation … shall at least consist of: … (j) Purpose of usage. Art. 32 … (2) Purpose of usage as referred to in Article 30 letter j, for carcass, and/or meat other than beef and its processed as referred to in Article 8 includes: hotel, restaurant, catering, manufacturing, other special needs, and modern market. Art. 39 Business Actors, State-Owned Entities, Regional Entities, Social Institutions, or Foreign Country/International Institution Representatives, or that violate the provisions in: … (d) Article 32; … shall be sanction[ed] by withdrawing of the recommendation, not given next recommendation, and shall be proposed to the Minister of Trade for a withdrawal of their Import Permit (PI) and company status as an Animal Product Registered Importer (IT). MoA 58/2015 (Exhibit BRA-01/IDN-24)Art. 29 Recommendation … shall at least contain: … (j) the intended use. Art. 31 (1) Intended use, as referred to in Article 29 letter j, of carcass and meat, as referred to in Article 8, is for hotels, restaurants, caterings, industries, and other particular purposes. (2) Intended use, as referred to in Article 29 letter j, of the processed product is for hotels, restaurants, caterings, industries, and other particular purposes, as well as for modern market. Art. 38 Business Player, State Owned Enterprise (SOE) and Regional Government Owned Enterprise (ROE), Social Institution, and Foreign Country Representative/International Institution that breaches the provision of: … (e) Art. 31 shall be sanctioned by revocation of their recommendation, denial of their next recommendation application, and propose to the Minister administrating governmental trade affairs to revoke the Import Approval (PI). MoA 34/2016 (Exhibit BRA-48/IDN-93)Art. 4 … (6) Business Actors, State Owned Enterprises, Regional Owned Enterprises, Social Institutions or International Institution Representatives as referred to in paragraph (1) are obliged to conduct importation in accordance with Recommendation as referred to in paragraph (3). Art. 22 (1) Application of a Recommendation … shall be enclosed with the following required documents: … (l) distribution plan … in accordance for format-2 Art. 28 Recommendation … shall at least consist of: … (j) Purpose of usage. Art. 31 (1) Purpose of usage as referred to in Article 28 letter j for carcass, meat, offal and/or its processed products which required a cold chain facility as referred to in Article 8 for hotels, restaurants, caterings, industries, markets with cold chain facilities, and other special needs. Art. 32 (1) Business Actors, State-Owned Enterprises, Regional-Owned Enterprises, Social Institutions and Foreign Country/International Institution Representatives who imports carcass, meat, offal and/or their processed products is forbidden to: … (b) conduct importation of type/category of carcass, meat and/or their processed products other than what is stated in the Recommendation. (3) Business Actors, State-Owned Enterprises and Regional-Owned Enterprises which import carcass, meat and offal and/or their processed products as listed in Annex I and Annex II is required to submit a distribution report of the carcass and meat to the Director General online in accordance to format-4 on every Thursday. Art. 38 (1) Business Actors, State Owned Enterprises, Regional Owned Enterprises, Social Institutions or Foreign Country/Institution Representatives which violate Article 4 paragraph (2) and paragraph (6) will be subject to temporary suspension of import recommendation for 1 year period, and proposed by the Minister to the ministry of trade to be imposed sanction according to the prevailing laws and regulations.... (3) Business Actors, State-Owned Enterprises, Regional-Owned Enterprises, Social Institutions or Foreign Country/Institution Representatives which violate the following articles: … (b) Article 22 paragraph (1) letter l, will be subject to written warning and if it is ignored, will be subject to temporary suspension of import recommendation for 1 year period. (4) Business Actors, State-Owned Enterprises, Regional-Owned Enterprises, Social Institutions or Foreign Country/Institution Representatives which violate Article 32 will be subject to written warning and if it is ignored, will be subject to temporary suspension of import recommendation for 1 year period.

7.178.
As explained in section 7.2.4.3 above, we will first analyse the measure as enacted in MoA 58/2015, that is, the version Brazil refers to in its first written submission. We then move to examine the relevant provisions in MoA 34/2016 (the most recent legal instrument).

7.5.2 Analysis of the intended use requirement as enacted through MoA 58/2015

7.179.
In this section we consider the intended use requirement as enacted through MoA 58/2015. Brazil contends that this measure is inconsistent with Article XI of the GATT 1994, Article III:4 of the GATT 1994, and Article 4.2 of the Agreement on Agriculture.286 Indonesia, as a threshold matter, submits that only Article III:4 of the GATT 1994 is applicable.287 In respect of that provision Indonesia contends that there are no like products and, therefore, that there is no less favourable treatment.288 Alternatively, Indonesia argues that the measure is justified under Article XX(b) and (d) of the GATT 1994.289

7.5.2.1 Measure at issue and jurisdiction

7.180.
We refer to Table 3 above, which sets out Article 31 of MoA 58/2015. According to this provision, imported frozen chicken may only be sold to hotels, restaurants, caterings and industries. In addition, processed products may also be sold to modern markets. Pursuant to Article 29(j) of MoA 58/2015 (see Table 3 above), these intended uses are explicitly indicated in the MoA Import Recommendation.290 Article 38(e) provides for sanctions if an importer breaches Article 31. The sanctions consist in a revocation of the recommendation, denial of the next recommendation application and proposal to the MoT to revoke the import approval.
7.181.
We note that these provisions differ slightly from the intended use requirement as laid down in the previous legal instrument, namely MoA 139/2014. In particular, the sale in modern markets was also allowed for (non-processed) chicken meat in the previous version. In our view, this does not affect our jurisdiction. As discussed above, in line with the Appellate Body's jurisprudence in Chile – Price Band System, we consider that our terms of reference cover subsequent amendments to the measure at issue so long as that measure in essence remains the same.291 The intended use requirement consists in limiting allowed uses in the market; this essence has remained the same. As a matter of fact, the most important use that the measure does not include, as enacted through either set of legal instruments, is the use in traditional markets. Both parties agree that this is where most Indonesians buy their chicken.292 We therefore consider that the intended use requirement, as laid down in MoA 58/2015, is within our terms of reference.

7.5.2.2 Whether Article III:4 of the GATT 1994 is applicable

7.182.
As noted above, Brazil raises claims under both Article XI of the GATT 1994 and Article 4.2 of the Agreement on Agriculture, as well as under Article III:4 of the GATT 1994. Thus, Brazil challenges the intended use requirement both as a border and as an internal measure.
7.183.
Indonesia argues that the intended use requirement can only be challenged under Article III:4 of the GATT 1994.293 Indonesia submits that a measure is either an internal measure or a border measure but cannot be both at the same time.294 Indonesia thus considers that these provisions are mutually exclusive. According to Indonesia, because it is applying, to like domestic products, a measure equivalent to the intended use requirement, the intended use requirement is an internal measure.295
7.184.
According to Brazil, the intended use requirement has effects both at the border and subsequently (i.e. after importation), when the good is offered for sale in the Indonesian market. In Brazil's view, therefore, to the extent the measure affects goods at the border, the measure must be assessed under Article XI, and to the extent the measure affects goods after passing through the border, the measure must be examined under Article III:4.296 Brazil also argues that there is no equivalent measure that applies to domestic chicken.297
7.185.
We observe, first of all, that while the intended use requirement may have different effects, what Brazil identifies as the problematic aspect of the measure, i.e. the source or cause of the different effects, is one and the same, whether presented under Article III:4 or under Article XI and Article 4.2. This is thus different from other disputes, where different aspects of a measure were separately challenged under different provisions, as causing distinct effects relevant to the provisions cited.298
7.186.
Next, we note that both parties, albeit for different reasons, take the view that Article III:4 is applicable and have presented arguments under this provision. We observe that the question whether Article III:4 applies to the exclusion of Article XI of the GATT 1994 and Article 4.2 of the Agreement on Agriculture, only becomes relevant if and when Article III:4 is applicable to the measure at issue. We therefore examine whether the intended use requirement as laid down in MoA 58/2015, falls within the scope of Article III:4.
7.187.
Article III: 4 states as follows:

The products of the territory of any contracting party [Member] imported into the territory of any other contracting party [Member] shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use. The provisions of this paragraph shall not prevent the application of differential internal transportation charges which are based exclusively on the economic operation of the means of transport and not on the nationality of the product. (emphasis added)

7.188.
Thus, Article III:4 applies to "laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use".299 However, this scope defining element of Article III:4 is qualified through the interpretative note Ad Article III which states:

Any internal tax or other internal charge, or any law, regulation or requirement of the kind referred to in paragraph 1 which applies to an imported product and to the like domestic product and is collected or enforced in the case of the imported product at the time or point of importation, is nevertheless to be regarded as an internal tax or other internal charge, or a law, regulation or requirement of the kind referred to in paragraph 1, and is accordingly subject to the provisions of Article III. (emphasis added)

7.189.
We read this qualification300 to mean that a measure that affects the internal sale, offering for sale, etc., when enforced at the time or point of importation, only comes under Article III:4 if it applies to an imported product and the like domestic product. In other words, measures which only apply to imported products affecting their internal sale, etc., but do not apply to like domestic products, do not fall under Article III:4.
7.190.
There are thus three questions that we need to address. The first question is whether the intended use requirement is a law, regulation or requirement affecting the internal sale, offering for sale, purchase, transportation, distribution or use of imported chicken meat. We consider that this is the case and do not understand either party to dispute the point.
7.191.
The second question is whether the intended use requirement is a measure that is enforced at the time or point of importation. We understand the relevant literal meaning of "enforce" in this context to be "to give legal force".301 The question, therefore, is whether the intended use requirement is given legal force at the time or point of importation. As noted above, the allowed uses are spelt out in the MoA Import Recommendation. The imposition of sanctions in case of non-observance of the requirement directly affects the possibility to import. In our view, the intended use requirement is akin to a condition, on which importation depends. We therefore consider this to be a case of enforcement "at the point of importation".
7.192.
The third question is whether the measure applies to imported products and to like domestic products. The panel in EC – Asbestos took the view that this does not mean that the "identical" measure must apply to like domestic products; rather, that there is an equivalent measure for like domestic products.302 We agree with this view. The very fact that one is enforced at the border and the other in the market may imply that measures are not identical. However, what matters is whether they are designed to achieve the same result.303
7.193.
Indonesia submits that there is an equivalent measure that applies to domestic chicken meat, pointing to certain provisions in MoA Decree 306/1994.304 As stated in its title, the Decree governs the slaughtering and handling of poultry meat and its by-products.305 It provides in Article 22(c) that a place for selling poultry meat in the market must "be provided with a table having a porcelain covered or other non-corrosive and smooth material for selling fresh poultry meat and be equipped with cooler facilities (refrigerator and or freezer) for selling chilled-fresh and or frozen poultry meat". Thus, frozen poultry meat cannot be sold in markets, including traditional wet markets, unless there is a cold storage facility. Similarly, Article 23 of the Decree provides that frozen meat and chilled-fresh poultry meat which is offered for sale in meat shops and supermarkets must be stored in cold storage. Generally, therefore, domestic frozen and chilled products are subject to a cold storage requirement when sold in the domestic market.