   
  
WT/DS592/R/Add.1  
 
30 November  2022 
(22-8898) Page: 1/77 
  Original: English  
 
  
INDONESIA – MEASURES RELATING TO RAW MATERIALS  
REPORT OF THE PANEL  
Addendum  
 
 
This addendum  contains Annexes A to C to the Report of the Panel to be found in document  
WT/DS592/R . 
 
_______________  
 
 
 
 
 
 
 
  
 
 WT/DS592/R/Add.1  
 
- 2 - 
 
   
LIST OF ANNEXES  
ANNEX  A 
WORKING PROCEDURES OF THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures Concerning Business Confidential  
Information  12 
Annex  A-3 Additional Working Procedures Concerning Substantive Meetings with 
Remote Participation  15 
Annex  A-4 Additional Working Procedures Concerning Substantive Meetings with 
Remote Participation  19 
ANNEX B  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of the European Union  24 
Annex  B-2 Integrated executive summary of the arguments of Indonesia  34 
ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Brazil  49 
Annex  C-2 Integrated executive summary of the arguments of Canada  52 
Annex  C-3 Integrated executive summary of the arguments of India 56 
Annex  C-4 Integrated executive summary of the arguments of Japan  59 
Annex  C-5 Integrated executive summary of the arguments of the Republic of Korea  66 
Annex  C-6 Integrated executive summary of the arguments of Ukraine  69 
Annex  C-7 Integrated executive summary of the arguments of the United Kingdom  71 
Annex  C-8 Integrated executive summary of the arguments of the United States  73 
 
 
 WT/DS592/R/Add.1  
 
- 3 - 
 
  ANNEX A  
WORKING PROCEDURES OF THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures Concerning Business Confidential  
Information  12 
Annex  A-3 Additional Working Procedures Concerning Substantive Meetings with Remote 
Participation  15 
Annex  A-4 Additional Working Procedures Concerning Substantive Meetings with Remote 
Participation  19 
 
 
 WT/DS592/R/Add.1  
 
- 4 - 
 
 
 ANNEX  A-1 
WORKING PROCEDURES OF THE PANEL  
Adopted on 28 May 2021 
 
 
General  
 
1. (1) In this proceeding, the Panel shall follow the relevant provisions of the Understanding 
on Rules and Procedures Governing the Settlement of Disputes ("DSU"). In addition, the 
following Working Procedures apply.  
(2) The Panel reserves the right to modify these procedures or adopt additional procedures 
as necessary, after consultation with the parties.  
Confidentiality  
 
2. (1) In accordance with the DSU, the deliberations of the Panel shall be confidential, and the 
documents submitted to it shall be treated as confidential and shall be made available to the 
parties and, to the extent provided for in Article 10.3 of the DSU, to the third parties. Members 
shall treat as confidential information that is submitted to the Panel which the submitting 
Member has designated as confidential.  
(2) In acc ordance with the DSU, nothing in these Working Procedures shall preclude a party 
or third party from disclosing statements of its own positions to the public.  
(3) If a party submits a confidential version of its written submissions to the Panel, it shall 
also, upon request of a Member, provide a non -confidential summary of the information 
contained in its submissions that could be disclosed to the public. A party should endeavour 
to promptly1 provide a non -confidential summary to any Member requesting it. The Panel may, 
upon request, fix a time -limit within which the party should endeavour to provide such 
summary.  
(4) Upon request, the Panel may adopt appropriate additional procedures for the treatment 
and handling of confidential information after consultation with the parties.  
Submissions  
 
3. (1) Before the first substantive meeting of the Panel with the parties, each party shall 
submit a written submission in which it presents the facts of the case and its arguments, in 
accordance with the timetab le adopted by the Panel.  
(2) Each party shall also submit to the Panel, before the second substantive meeting of the 
Panel, a written rebuttal, in accordance with the timetable adopted by the Panel.  
(3) Each third party that chooses to make a written submi ssion before the first substantive 
meeting of the Panel with the parties shall do so in accordance with the timetable adopted by 
the Panel.  
(4) The Panel may invite the parties or third parties to make additional submissions during 
the proceeding, includin g with respect to requests for preliminary rulings in accordance with 
paragraph 4 below, and, if necessary for comments from the other party or third parties on 
such additional submission.  
 
1 Normally within 10 working days of the request.  WT/DS592/R/Add.1  
 
- 5 - 
 
 
 Preliminary rulings  
 
4. (1) If Indonesia considers that the Panel s hould make a ruling before the issuance of the 
Report that certain measures or claims in the panel request or the complainant's first written 
submission are not properly before the Panel, the following procedure applies. Exceptions to 
this procedure shall be granted upon a showing of good cause.  
a. Indonesia shall submit any such request for a preliminary ruling at the earliest possible 
opportunity and in any event no later than in its first written submission to the Panel. The 
European Union shall submit its response to the request before the first substantive 
meeting of the Panel, at a time to be determined by the Panel in light of the request.  
b. The Panel may issue a preliminary ruling on the issues raised in such a preliminary ruling 
request before, during o r after the first substantive meeting, or the Panel may defer a 
ruling on the issues raised by a preliminary ruling request until it issues its Report to the 
parties.  
c. If the Panel finds it appropriate to issue a preliminary ruling before the issuance of i ts 
Report, the Panel may provide reasons for the ruling at the time that the ruling is made, 
or subsequently in its Report.  
d. Any request for such a preliminary ruling by the respondent before the first meeting, and 
any subsequent submissions of the parties  in relation thereto before the first meeting, 
shall be served on all third parties. The Panel may provide all third parties with an 
opportunity to provide comments on any such request, either in their submissions as 
provided for in the timetable or separa tely. Any preliminary ruling issued by the Panel 
before the first substantive meeting on whether certain measures or claims are properly 
before the Panel shall be shared with all third parties.  
(2) This procedure is without prejudice to the parties' right  to request other types of 
preliminary or procedural rulings during the proceeding, and to the procedures that the Panel 
may follow with respect to such requests.  
Evidence  
 
5. (1) Each party shall submit all evidence to the Panel no later than during the first 
substantive meeting, except evidence necessary for purposes of rebuttal, or evidence 
necessary for answers to questions or comments on answers provided by the other party. 
Exceptions may be granted upon a showing of good cause.  
(2) Parties  seeking to provide additional evidence must make a showing of good cause. If 
the new evidence is admitted, the Panel shall accord  
6. (1) If the original language of an exhibit or portion thereof is not a WTO official working 
language, the submitting party  or third party shall simultaneously submit a translation of the 
exhibit or relevant portion into the WTO official working language of the proceeding. The Panel 
may grant reasonable extensions of time for the translation of exhibits upon a showing of 
good cause .  
(2) Any objection as to the accuracy of a translation should be raised as soon as possible 
in writing, preferably no later than the next submission or meeting (whichever occurs earlier) 
following the submission which contains the translation in que stion. Only upon a showing of 
good cause may objections be raised at a later stage of the proceedings. Any objection shall  
be accompanied by an explanation of the grounds for the objection and an alternative 
translation.  
7. (1) To facilitate the maintenanc e of the record of the dispute and maximize the clarity of 
submissions, each party and third party shall sequentially number its exhibits throughout the 
course of the dispute, indicating the submitting Member and the number of each exhibit on its 
cover pag e. Exhibits submitted by the European Union should be numbered EU -1, EU -2, etc. 
Exhibits submitted by Indonesia should be numbered IDN -1, IDN -2, etc. If the last exhibit in WT/DS592/R/Add.1  
 
- 6 - 
 
 
 connection with the first submission was numbered EU -5, the first exhibit in connec tion with 
the next submission thus would be numbered EU -6. If a party withdraws an exhibit or leaves 
one or more exhibits intentionally blank, it should indicate this on the cover page that provides 
the number of the blank exhibit.  
(2) With each of its submissions, statements, and responses to questions attaching new 
exhibits, a party shall provide an updated list of exhibits (in Word or Excel format).  
(3) If a party submits a document that has already been submitted as an exhibit by the 
other party, it should explain why it is submitting that document again, particularly if the 
translation of that document differs from the one already provided (see paragraph 6(2) 
above).  
(4) If a party includes a hyperlink to the content of a website in a submission, and  intends 
that the cited content form part of the official record, the cited content of the website shall be 
provided in the form of an exhibit along with the date that it was last accessed . 
Editorial Guide  
8. To facilitate the work of the Panel, each party  and third party is invited to make its submissions 
in accordance with the WTO Editorial Guide for Panel Submissions (electronic copy provided).  
 
Questions  
 
9. The Panel may pose questions to the parties and third parties at any time, including:  
a. Before any meeting, the Panel may send written questions, or a list of topics it intends 
to pursue in questioning orally during a meeting. The Panel may ask different or additional 
questions at the meeting.  
b. The Panel may put questions to the parties and third parties orally during a meeting, 
and in writing following the meeting, as provided for in paragraphs 15 and 21 below.  
Substantive meetings2 
 
10. The Panel shall meet in closed session.  
11. The parties  shall be present at the meetings only when invited by the Panel to appear before 
it.  
12. (1) Each party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each party shall have the responsibility for all me mbers of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these Working 
Procedures, particularly with regard to the confidentiality of the proceeding and the 
submissions of the parties and third parties .  
13. Each party shall provide to the Panel the list of members of its delegation no later than 
5.00 p.m. (Geneva time) three working days before the first day of each meeting with the Panel.  
14. A request for interpretation by any party should be made t o the Panel as early as possible, 
preferably at the organizational stage, but no later than three weeks before the meeting, to allow 
sufficient time to ensure availability of interpreters.  
 
2 The deadlines for providing notice to the Panel in this section may be modified in the event of a virtual 
hearing or in light of any sanitary protocols adopted for future access to the WTO premises.  WT/DS592/R/Add.1  
 
- 7 - 
 
 
 15. The first substantive meeting of the Panel with the parties sha ll be conducted as follows:  
a. The Panel shall invite the European Union to make an opening statement to present its 
case first. Subsequently, the Panel shall invite Indonesia to present its point of view. Before 
each party takes the floor, it shall provid e the Panel and other participants at the meeting with 
a provisional written version of its statement. If interpretation is needed, each party shall 
provide additional copies for the interpreters before taking the floor.   
b. Each party should avoid lengthy  repetition of the arguments in its submissions. Each 
party is invited to limit the duration of its opening statement to not more than 75 minutes. If 
either party considers that it requires more time for its opening statement, it should inform 
the Panel an d the other party at least three working days before the meeting, together with 
an estimate of the expected duration of its statement. The Panel will accord equal time to the 
other party.  
c. After the conclusion of the opening statements, the Panel shall g ive each party the 
opportunity to make comments or ask the other party questions.  
d. The Panel may subsequently pose questions to the parties.  
e. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closi ng statement. The party that presented its opening statement first shall 
present its closing statement first. Before each party takes the floor, it shall provide the Panel 
and other participants at the meeting with a provisional written version of its clos ing 
statement, if available . 
f. Following the meeting:  
i. Each party shall submit a final written version of its opening statement and any 
prepared closing statement no later than 5.00 p.m. (Geneva time) on the first working 
day following the meeting.  
ii. Each party shall send in writing, within the timeframe establ ished in the timetable 
adopted by the Panel or as adjusted by the Panel before the end of the meeting, any 
questions to the other party to which it wishes to receive a response in writing.  
iii. The Panel shall send in writing, within the timeframe established in the timetable 
adopted by the Panel or as adjusted by the Panel before the end of the meeting, any 
questions to the parties to which it wishes to receive a response in writing.  
iv. Each party shall respond in writing to the questions from the Panel, and to any 
questions posed by the other party, within the timeframe established in the timetable 
adopted by the Panel or as adjusted by the Panel before the end of the meeting.  
16. The second substantive meeting of the Panel with the parties shall be conducted i n the same 
manner as the first substantive meeting with the Panel, except that Indonesia shall be given the 
opportunity to present its opening statement first. The party that presented its opening statement 
first shall present its closing statement first . 
17. The Panel reserves the right to adopt additional working procedures governing substantive 
meetings with remote participation, as necessary.  WT/DS592/R/Add.1  
 
- 8 - 
 
 
 Third party session3 
 
18. The third parties have the right to be present during the third -party session mentio ned in the 
next paragraph, as well as when invited by the Panel to appear before it .  
19. Each third party may present its views orally during a session of the first substantive meeting 
with the parties set aside for that purpose.  
20. (1) Each third party shall indicate to the Panel no later than 5.00 p.m. five working days 
before the third -party session, unless otherwise indicated by the Panel, whether it intends to 
make a statement during this session .  
(2) To ensure the availability of interpreters, the third parties shall also indicate as soon as 
possible and preferably three weeks before the third -party session whether they intend to 
make their statement in a WTO official working language other than English, which is the 
language in which these panel pr oceedings are being conducted, and whether they would 
require interpretation from English to any other WTO official working language.  
21. (1) Each third party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each third party shall have the responsibility for all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU, these Working 
Procedures and any other Working Procedures adopted by the Panel, particula rly with regard 
to the confidentiality of the proceeding and the submissions of the parties and third parties.  
(3) Each third party shall provide, no later than five working days before the third -party 
session, unless otherwise indicated by the Panel, a list of members of its delegation who will 
attend the session.  
22. The third -party session shall be conducted as follows:  
a. All parties and third parties may be present during the entirety of this session.  
b. The Panel shall first hear the statem ents of the third parties. Each third party making a 
statement at the third -party session shall provide the Panel and other participants with a 
provisional written version of its statement before it takes the floor. If interpretation of a third 
party's sta tement is needed, that third party shall provide additional copies for the interpreters 
before taking the floor.  
c. Each third party should limit the duration of its statement to 15 minutes and avoid 
repetition of the arguments already in its submission. I f a third party considers that it requires 
more time for its statement, it should inform the Panel and the parties at least five working 
days before the meeting, together with an estimate of the expected duration of its statement. 
The Panel will accord equ al time to all third parties for their statements.  
d. After the third parties have made their statements, the parties shall be given the 
opportunity to pose questions, through the Panel, to any third party for clarification on any 
matter raised in that thi rd party's submission or statement.  
e. The Panel may subsequently pose questions to any third party.  
f. Following the third -party session:  
i. Each third party shall submit the final written version of its statement, no later 
than 5.00 p.m. (Geneva time) on  the first working day following the meeting.  
 
3 The deadlines for providing notice to the Panel in this section may be modified in the event of a virtual 
hearing or in light of any sanitary protocols adopted for future access to the WTO premises.  WT/DS592/R/Add.1  
 
- 9 - 
 
 
 ii. Each party may send in writing, within the timeframe established in the timetable 
adopted by the Panel or as adjusted by the Panel before the end of the meeting, any 
questions to one or more third parties t o which it wishes to receive a response in writing.  
iii. The Panel may send in writing, within the timeframe established in the timetable 
adopted by the Panel or as adjusted by the Panel before the end of the meeting, any 
questions to one or more third par ties to which it wishes to receive a response in writing.  
iv. Each third party choosing to do so shall respond in writing to questions from the 
Panel or a party, within the timeframe established in the timetable adopted by the Panel 
or as adjusted by the P anel before the end of the meeting.  
23. The Panel reserves the right to adopt additional working procedures governing third -party 
sessions with remote participation, as necessary.  
Descriptive part and executive summaries  
 
24. The description of the argume nts of the parties and third parties in the descriptive part of the 
Panel report shall consist of executive summaries provided by the parties and third parties, which 
shall be annexed as addenda to the report. These executive summaries shall not in any way  serve 
as a substitute for the submissions of the parties and third parties in the Panel's examination of the 
case. 
 
25. Each party shall submit a single integrated executive summary of the facts and arguments as 
presented to the Panel. The timing of the submission of the integrated executive summary shall be 
indicated in the timetable adopted by the Panel.  
 
26. The single integrated executive summary shall not exceed 30 pages. The Panel will accept 
additional pages upon request and with good cause.  
 
27. Each third party shall submit an integrated executive summary of its arguments as presented 
in its written submission and statement in accordance with the timetable adopted by the Panel. This 
integrated executive summary may also include a summary of re sponses to questions. The executive 
summary to be provided by each third party shall not exceed ten pages. If a third -party submission 
and statement do not exceed six pages in total, there is no need for a separate executive summary 
of that third party's a rguments. That third party may, however, provide a separate executive 
summary if it so wishes.  
 
28. The Panel may request the parties and third parties to provide executive summaries of facts 
and arguments presented in any other submissions to the Panel fo r which a deadline may not be 
specified in the timetable.  
 
Interim review  
 
29. Following issuance of the interim report, each party may submit a written request to review 
precise aspects of the interim report and request a further meeting with the Panel, in accordance 
with the timetable adopted by the Panel. The right to request such a meeting shall be exercised no 
later than at the time the written request for review is submitted.  
30. If no further meeting with the Panel is requested, each party ma y submit written comments 
on the other party's written request for review. Such written comments shall be limited to the other 
party's written request for review and shall be submitted in accordance with the timetable adopted 
by the Panel.  
Interim and Fina l Report  
 
31. The interim report, as well as the final report before its official circulation, shall be kept strictly 
confidential and shall not be disclosed.  WT/DS592/R/Add.1  
 
- 10 - 
 
 
 Service of documents  
 
32. The following procedures regarding service of documents apply to all do cuments submitted by 
parties and third parties during the proceeding:  
a. Each party and third party shall submit all documents to the Panel by submitting them via 
the Disputes On -Line Registry Application (DORA) https:/ /dora.wto.org  by 5:00 p.m. 
(Geneva time) on the due dates established by the Panel. The electronic version uploaded 
into DORA shall constitute the official version for the purposes of submission deadlines 
and the record of the dispute. Upload of a document  into DORA shall constitute service on 
the Panel, the other party, and the third parties.  
b. Each party and third party shall submit one paper copy of all documents it submits to the 
Panel in a WTO official working language (i.e. English, French or Spanish ), including the 
exhibits, with the DS Registry (office No. 2047) for the DS Registry's archive within three 
working days following the electronic submission, by 5:00 p.m. (Geneva time). The DS 
Registrar shall stamp the documents with the date and time of receipt. If an exhibit is in 
a format that is impractical to submit as a paper copy, then the party may submit such 
exhibit in a format agreed upon with the DS Registry and the Panel Secretary. In this case, 
the party should still submit a cover page with the exhibit number indicating that the 
exhibit is only available in electronic format or such format agreed upon with the DS 
Registry and the Panel Secretary. If, for any reason, the DS Registry office is unavailable 
for the service of paper copies, the "n ext working day" shall mean the day that the Panel 
determines for such delivery once normal operations have resumed.  
c. The Panel shall provide the parties with the Descriptive Part of the Report, the Interim 
Report, and the Final Report, as well as all ot her documents or communications issued by 
the Panel during the proceeding, via DORA. In addition, the Panel shall provide to the 
parties paper copies of the Descriptive Part of the Report, the Interim Report, and the 
Final Report on the date that these doc uments are uploaded in DORA.  
d. If the parties or third parties have any questions or technical difficulties relating to DORA, 
they are invited to contact the DS Registry ( DSRegistry@wto.org ).  
e. If any party or t hird party is unable to meet the 5:00 p.m. deadline because of technical 
difficulties in uploading these documents into DORA, the party or third party concerned 
shall inform the DS Registry ( DSRegistry@wto.org ) without delay and provide an electronic 
version of all documents to be submitted to the Panel by email including any exhibits. The 
email shall be addressed to DSRegistry@wto.org , the Panel Secretary, the other party 
and, if appropriate, the third parties. The documents sent by email shall be submitted no 
later than 5:30 p.m. on the due date established by the Panel. If the file size of specific 
exhibits makes transmission by email impossible, or it would require more t han five email 
messages, owing to the number of exhibits to be filed, to transmit all of them by email, 
the specific large file size exhibits, or those that cannot be attached to the first five email 
messages, shall be filed with the DS Registry (office No . 2047) and provided to the other 
party and, if appropriate, the third parties by no later than 9:30 a.m. the next working 
day on an electronic medium acceptable to the recipient. In that case, the party or third 
party concerned shall send a notification t o the DS Registrar, copying the Panel Secretary, 
the other party, and the third parties, as appropriate, via email, identifying the numbers 
of the exhibits that cannot be transmitted by email.  
f. In case any party or third party is unable to access a docum ent filed through DORA because 
of technical difficulties, it shall promptly, and in any case no later than 5:00 p.m. on the 
next working day after the due date for the filing of the document, inform the DS Registrar, 
the Panel Secretary, and the party or t hird party that filed the document, of the problem 
by email and shall, if possible, identify the relevant document(s). The DS Registrar will 
promptly try to identify a solution to the technical problem. In the meantime, the party or 
third party that filed the document(s) shall, promptly after being informed of the problem, 
provide an electronic version of the relevant document(s) to the affected party or third 
party by email, with a copy to the DS Registry ( DSRegistry@wto.org ) and the Panel 
Secretary to allow access to the document(s) while the technical problem is being 
addressed. The DS Registrar may provide an electronic version of the relevant WT/DS592/R/Add.1  
 
- 11 - 
 
 
 document(s) by email if the affected party or third party so r equests. The DS Registrar 
shall in that case copy the party or third party that filed the document(s) on the email 
message .  
Correction of clerical errors in submissions  
33. The Panel may grant leave to a party or third party to correct clerical errors in  any of its 
submissions (including paragraph numbering and typographical mistakes). Any such request should 
identify the nature of the errors to be corrected and should be made promptly following the filing of 
the submission in question.  
 WT/DS592/R/Add.1  
 
- 12 - 
 
 
 ANNEX A -2 
ADDITIONAL WORKING PROCEDURES CONCERNING BUSINESS CONFIDENTIAL  
INFORMATION  
Adopted on 28 May 2021  
 
1. These procedures adopted in accordance with paragraph 2(4) of the Panel's working 
procedures are additional to the general protect ion of confidential information set forth in 
paragraph 2(1) of the Panel's working procedures and apply to any business confidential 
information (BCI) that a party or a third party submits in the course of the present Panel 
proceedings.  
2. For the purposes o f these proceedings, BCI means any information that has been designated 
as such by a party or a third party submitting the information to the Panel, that is not available 
in the public domain, and the release of which could reasonably be considered to caus e or 
threaten to cause serious harm to the interests of the originator(s) of the information.  
3. Each party and third party shall act in good faith and exercise restraint in designating 
information as BCI. The Panel shall have the right to intervene in any m anner that it deems 
appropriate, if it is of the view that restraint in the designation of BCI is not being exercised.  
4. No person shall have access to BCI, except a member of the Panel or the WTO Secretariat1 
assigned to work on the present dispute, an em ployee of a party or a third party, an outside 
advisor or an expert providing assistance to the Panel, a party, or a third party and their 
clerical staff for the purposes of this dispute. A person having access to BCI shall not disclose 
that information ot her than to persons authorized to have access to it pursuant to these 
procedures. Any information designated as BCI shall only be used for the purposes of this 
dispute. Each party and third party is responsible for ensuring that its employees, outside 
advisors, and experts comply with these procedures.  
5. An employee of a party or a third party, an outside advisor, or an expert assisting the Panel, 
a party or a third party is not permitted access to BCI if that employee, outside advisor, or 
expert is an offic er or employee of an enterprise, or an association of enterprises, engaged in 
the production, distribution, sale, export, or import of the products affected by the measures 
at issue in this dispute.  
6. The party or third party submitting BCI, including refer ring to or quoting BCI already submitted 
by another party or third party, shall mark the cover or first page, and each page of the 
document containing BCI to indicate the presence of such information in any document 
submitted to the Panel. Documents contai ning BCI should be marked as follows:  
a. The cover or first page of the document shall state in bold " Contains Business 
Confidential Information on pages xxxxx ".  
b. Each page of the document which contains BCI shall indicate in bold " Contains 
Business Confident ial Information " at the top of the page.  
c. Where the document contains both BCI and non -BCI information, the specific BCI in 
question shall be placed between double square brackets, as follows: [[xx,xxx.xx]]; and  
d. The party or third party shall indicate tha t the document contains BCI when uploading 
the document into the Dispute Online Registry Application (DORA).  
7. Representatives of, and outside advisers to, each of the parties and, where relevant under 
paragraphs 9 and 11, representatives of, and outside ad visers to, the third parties shall be 
 
1 Including translat ors and interpreters.  WT/DS592/R/Add.1  
 
- 13 - 
 
 
 notified to the Panel, other party, and third parties in a list containing the names, titles, and 
employers of persons legitimately requiring access to the BCI. The list for each party is to be 
first submitted at the l atest by one week before the due date of the first written submission 
of the complainant. The  list of each party or third party shall be subsequently amended and 
re-submitted if the names, titles, or employers are changed. Parties and third parties may 
give access to BCI only to outside advisers and experts providing assistance to the parties in 
these proceedings and their clerical staff.  
8. On the request of either party, the Panel will review whether particular confidential information 
it has submitted is so sensitive that it should not be provided to the third parties, taking into 
consideration the need for the third party to have access to  the particular information. If the 
Panel finds such information to be particularly sensitive, it will direct the party submitting the 
information to provide a summary of the contents of the redacted information that will be 
made available to the third par ties.  
9. A party or a third party submitting BCI in the form of, or as part of, an exhibit shall, in addition 
to the above, so indicate by putting "BCI" next to the exhibit number (e.g. Exhibit IDN -1 
(BCI)) in the Exhibit list. The party or third party shall  also indicate that the exhibit contains 
BCI when uploading it into DORA. If the entire content of an exhibit constitutes BCI, the cover 
page and the top of each page of the exhibit shall state in bold " All of the information 
included in this exhibit is Bu siness Confidential Information " without it being necessary 
to place all of the specific information in that exhibit between double brackets.  
10. Any BCI that is submitted in binary -encoded form shall include the terms "Business 
Confidential Information" or " BCI" in the file name. Upon uploading to DORA of a document in 
binary -encoded form containing BCI, the confidentiality level for the document shall be 
selected as "BCI". In addition, where applicable, the label of the storage medium shall be 
clearly marked  with the statement "Business Confidential Information" or "BCI".  
11. If an oral statement contains BCI, the party or third party making such a statement shall 
inform the Panel accordingly three working days in advance of the Panel meeting so 
appropriate arra ngements can be made. The Panel will ensure that only persons authorized 
to have access to BCI pursuant to these procedures can hear that statement. The written 
versions of such oral statements submitted to the Panel shall be marked as provided for in 
paragraphs 6 through 10 above.  
12. If a party or a third party considers that information submitted by the other party or a third 
party should have been designated as BCI and objects to its submission without BCI 
designation, it shall forthwith bring this objecti on to the attention of the Panel, the other party, 
and, where relevant, the third parties, together with the reasons for the objection. The Panel 
shall address the objection, as appropriate. The same procedure should be followed if a party 
or a third party  considers that the other party or a third party identified as BCI information 
which should not be so designated. Unless impracticable, if a party, a third party, or the Panel, 
contests the non -designation or designation of information as BCI, the party ma king the 
objection shall do so within five working days of the information having been submitted.  
13. Any person authorized to have access to documents containing BCI under the terms of these 
procedures shall store such documents, including in electronic form , so as to prevent 
unauthorized access to such information.  
14. The Panel will not disclose BCI, in its report or in any other way, to persons not authorized 
under these procedures to have access to BCI. The Panel may, however, make statements of 
conclusion d rawn from such information. Before the Panel circulates its final report to the 
Members, it shall give each party an opportunity to review the report to ensure that it does 
not disclose any information that the party has properly designated as BCI.  
15. At the  conclusion of the dispute2, and within a period to be fixed by the Panel, each party and 
third party shall either return all documents (including electronic material) containing BCI, 
 
2 Where this is defined as when (a) the Panel or Appellate Body report is adopted by the DSB, or the 
DSB decides by consensus not to adopt the Panel or the Appellate Body report; (b) the authority for the WT/DS592/R/Add.1  
 
- 14 - 
 
 
 submitted during the Panel proceedings, to the party that submitted suc h documents or certify 
in writing to the Panel and the other parties that all such documents have been destroyed, or 
otherwise protect the BCI against public disclosure, consistent with the party's obligations 
under its domestic laws. The WTO Secretariat s hall have the right to retain the documents 
containing BCI for the archives of the WTO.  
16. Documents containing information designated as BCI form part of the official record of the 
dispute for purposes of any further proceedings under the DSU. Parties seekin g to have that 
information protected in a similar way in further proceedings should address such a request 
to the appropriate body and should do so as early as possible so as to ensure procedures are 
in place before the DS Registry transmits the record of the proceeding. When transmitting the 
record, the DS Registry will indicate which documents contain BCI.  
17. The Panel reserves the right, after consulting with the parties, to amend or supplement these 
Additional Working Procedures concerning BCI.  
 
 
 
 
establishment of the Panel la pses under Article 12.12 of the DSU; or (c) a mutually satisfactory solution is 
notified to the DSB under Article 3.6 of the DSU.  WT/DS592/R/Add.1  
 
- 15 - 
 
 
 ANNEX  A-3 
ADDITIONAL WORKING PROCEDURES CONCERNING SUBSTANTIVE MEETINGS 
WITH  REMOTE  PARTICIPATION  
Adopted on 5 October 2021  
 
General  
 
1. These Additional Working Procedures set out terms for holding the substantive meetings of 
the Panel remotely.  
 
Definitions  
 
2. For the purposes of these Additional Working Procedures:  
 
"DORA" means the Disputes Online Registry Application.  
 
"Host" means the designated person within the WTO Secretariat responsible for the 
management of the platform for participants to take part in the meeting with the Panel.  
 
"Participant" means any authorized person taking part in the meeting, including the 
Members of the Panel, the WTO Secretariat staff involved in the dispute and the organization 
of the meeting, m embers of the parties' and third parties' delegations, and  interpreters.  
 
"Platform" means the Cisco Webex platform.  
 
Equipment and technical requirements  
 
3. Each party and third party shall be responsible for ensuring that the members of its delegation 
join the meeting using the designated platform and satisfy the minimum equipment and technical 
requirements of the platform provider for the effective conduct of the meeting.  
 
4. Technical questions, including the minimum equipment and technical requirement s for the 
usage of the platform, will be addressed in the advance testing sessions between the host and 
participants provided for in paragraph 7 below.  
 
Technical support  
 
5. (1) The Secretariat has limited ability to offer remote assistance during, and in advance of 
the meeting. Each party and third party, therefore, is responsible for providing its own 
technical support to the members of its delegation.  
 
(2) The host will assist participants in accessing and using the platform in preparation  for, 
and during the course of, the meeting with the Panel. The host will prioritize assisting those 
participants designated as main speakers on the delegations' lists.  
 
Pre-meeting  
 
Registration  
 
6. Each party and third party shall provide to the Panel t he list of the members of its delegation 
on the dedicated form in Annex 1 below, no later than 5:00 p.m. (Geneva  time) ten working days 
before the start of the meeting. The list shall indicate those participants designated as main 
speakers.  
 WT/DS592/R/Add.1  
 
- 16 - 
 
 
 Advance testin g 
 
7. The Secretariat will hold two testing sessions with participants before the substantive meeting 
with the Panel. One of these sessions will be a joint session with all participants in the meeting. 
These testing sessions will seek to reflect, as far as  possible, the conditions of the proposed meeting. 
Participants should make themselves available for the testing sessions. The Secretariat will be in 
contact with the participants to set the schedule of the testing sessions in due course.  
 
Confidentiality and security  
 
8. The meeting shall be confidential and the rules of the DSU continue to apply during the remote 
session of the meeting.  
 
9. Each party and third party shall follow any security and confidentiality protocols set by the 
Panel in advance of th e meeting.  
 
10. The participants shall connect to the meeting through a secure internet connection and shall 
avoid the use of an open or public internet connection.  
 
Conduct of the meeting  
 
Recording  
 
11. The Secretariat will record the meeting in its entirety. The recording of the meeting shall form 
part of the panel record.  
 
12. Any recording of the meeting or any part thereof other than that referred to in paragraph 11, 
through any means, including audio or video recording, or screenshot, is prohibit ed. 
 
Access to the virtual meeting  
 
13.  Participants shall access the virtual meeting in accordance with these Additional Working 
Procedures.  
 
14. (1) The host will invite participants via email to join the virtual meeting.  
 
(2)  For security reasons, ac cess to the virtual meeting will be password -protected and 
limited to participants. Participants shall not forward or share the virtual meeting link or 
password with unauthorized persons.  
 
(3) Each party and third party shall ensure that only participants from its delegation access 
the virtual meeting.  
 
Advance log -on 
 
15. (1) The virtual meeting room will be accessible 60 minutes in advance of the scheduled 
start time of the meeting.  
 
(2) To ensure that the meeting starts as scheduled, participants must login to the platform 
at least 30 minutes in advance of the scheduled start time of the meeting.  
 
(3) Participants will be placed in a virtual lobby where they will remain until the Panel is 
ready to start the meeting, at which time the h ost will admit them to the meeting.  
 
Document sharing  
 
16. (1) Before each party or third party takes the floor, it shall provide the Panel and other 
participants at the meeting with a provisional written version of its statement through DORA, 
including an y exhibits.  
 
(2) Any participant wishing to share a document with the other participants during the 
meeting – including via screen sharing - shall upload the document to  DORA and confirm that WT/DS592/R/Add.1  
 
- 17 - 
 
 
 the other participants have received the document, before first  referring to the document at 
the meeting.  
 
(3) Participants are encouraged to have DORA open to facilitate upload and download of 
shared documents.  
 
 
Pauses for internal coordination and consultation  
 
17. Parties are free to internally coordinate and cons ult while the meeting is ongoing so long as it 
is not disruptive to the proceedings, but they should be aware that the chat feature of the platform 
is visible to all participants. The Panel may briefly pause a session at any time, on its own initiative 
or upon request of a party, to enable any necessary internal coordination and consultation.  
 
Participation  
 
18. Participants who are not speaking are expected to have their microphone on mute. They may 
also wish to turn off their camera to preserve bandwidth. If a participant wishes to take the floor, 
they should use the "raise a hand" function in the platform. Once the chairperson gives the floor to 
the participant, they should unmute their microphone and turn their camera on.  
 
Communication breakdo wn 
 
19. Each party and third party will designate a contact person who can liaise with the host during 
the course of the meeting to report any technical issues that arise with respect to the platform. The 
parties and third parties shall immediately notify the Panel of any technical or connectivity issues 
affecting the participation of their delegation, or a member of their delegation, in the meeting. To 
do so, the party or third party that experiences the technical or connectivity issue shall:  
 
(1) if possi ble, immediately intervene at the meeting and briefly state the nature of the 
issue experienced; or  
 
(2) if doing so is not possible, immediately contact the host and explain the nature of the 
issue experienced. The host can be contacted via the platform c hat, by sending an email to              
               @wto.org, or by telephone at +41 22 739     . 
 
20. The Panel may suspend the proceedings until the technical issue is resolved or continue the 
proceedings with those that are connected.  
 
Relationship with the Working Procedures adopted by the Panel or Relationship with the 
adopted Working Procedures  
 
21. These Additional Working Procedures complement the Working Procedures adopted by the 
Panel, and to the extent of any conflict between the two, superse de them.  
 
 
  WT/DS592/R/Add.1  
 
- 18 - 
 
 
 INDONESIA — MEASURES RELATING TO RAW MATERIALS (DS592)   
 
FIRST  SUBSTANTIVE MEETING WITH THE PANEL  
 
DATE  
 
DELEGATION LIST OF [MEMBER]  
 
Full name  Position / Title  Email address  Phone number 
where the 
participant can be 
reached on meeting 
day Whether the participant 
plans to attend the 
virtual meeting 
remotely or from the 
WTO premises  
     
     
     
     
     
     
     
 
 
 
Using boldface, please indicate who on the above list will deliver statements or is likely to take the 
floor during the meeting.  
 
Name and contact details of the person who will liaise with the host on technical issues:  
 
 
 
 WT/DS592/R/Add.1  
 
- 19 - 
 
 
 ANNEX A -4 
ADDITIONAL WORKING PROCEDURES CONCERNING SUBSTANTIVE MEETINGS 
WITH  REMOTE  PARTICIPATION  
Adopted on 5 October 2021  
 
General  
 
1. These Additional Working Procedures set out terms for holding the substantive meetings of 
the Panel remotely.  
 
Definitions  
 
2. For the purposes of these Additional Working Procedures:  
 
"DORA"  means the Disputes Online Registry Application.  
 
"Host" means the designated person within the WTO Secretariat responsible for the 
management of the platform for participants to take part in the meeting with the Panel.  
 
"Participant" means any authorized person taking part in the meeting, including the 
Members of the Panel, the WTO Secretariat staff involved in the dispute and the organization 
of the meeting, members of the parties' and third parties' delegations, and  interpreters.  
 
"Platform" means the Cisco Webex platform.  
 
Equipment and technical requirements  
 
3. Each party and third party shall be responsible for ensuring that the members of its delegation 
join the meeting using the designated platform and satisfy the minimum equipment and te chnical 
requirements of the platform provider for the effective conduct of the meeting.  
 
4. Technical questions, including the minimum equipment and technical requirements for the 
usage of the platform, will be addressed in the advance testing sessions bet ween the host and 
participants provided for in paragraph 7 below.  
 
Technical support  
 
5. (1) The Secretariat has limited ability to offer remote assistance during, and in advance of 
the meeting. Each party and third party, therefore, is responsible for pr oviding its own 
technical support to the members of its delegation.  
   
(2) The host will assist participants in accessing and using the platform in preparation for, 
and during the course of, the meeting with the Panel. The host will prioritize assisting th ose 
participants designated as main speakers on the delegations' lists.  
 
Pre-meeting  
 
Registration  
 
6. Each party and third party shall provide to the Panel the list of the members of its delegation 
on the dedicated form in Annex 1 below, no later than 5:00 p.m. (Geneva  time) ten working days 
before the start of the meeting. The list shall indicate those participants designated as main 
speakers.  
 WT/DS592/R/Add.1  
 
- 20 - 
 
 
 Advance testing  
 
7. The Secretariat will hold two testing sessions with participants before the substant ive meeting 
with the Panel. One of these sessions will be a joint session with all participants in the meeting. 
These testing sessions will seek to reflect, as far as possible, the conditions of the proposed meeting. 
Participants should make themselves ava ilable for the testing sessions. The Secretariat will be in 
contact with the participants to set the schedule of the testing sessions in due course.  
 
Confidentiality and security  
 
8. The meeting shall be confidential and the rules of the DSU continue to ap ply during the remote 
session of the meeting.  
 
9. Each party and third party shall follow any security and confidentiality protocols set by the 
Panel in advance of the meeting.  
 
10. The participants shall connect to the meeting through a secure internet co nnection and shall 
avoid the use of an open or public internet connection.  
 
Conduct of the meeting  
 
Recording  
 
11. The Secretariat will record the meeting in its entirety. The recording of the meeting shall form 
part of the panel record.  
 
12. Any recording of the meeting or any part thereof other than that referred to in paragraph 11, 
through any means, including audio or video recording, or screenshot, is prohibited.  
 
Access to the virtual meeting  
 
13.  Participants shall access the virtual meeti ng in accordance with these Additional Working 
Procedures.  
 
14. (1) The host will invite participants via email to join the virtual meeting.  
 
(2)  For security reasons, access to the virtual meeting will be password -protected and 
limited to participants. P articipants shall not forward or share the virtual meeting link or 
password with unauthorized persons.  
 
(3) Each party and third party shall ensure that only participants from its delegation access 
the virtual meeting.  
 
Advance log -on 
 
15. (1) The virtual meeting room will be accessible 60 minutes in advance of the scheduled 
start time of the meeting.  
 
(2) To ensure that the meeting starts as scheduled, participants must login to the platform 
at least 30 minutes in advance of the scheduled start time of the  meeting.  
 
(3) Participants will be placed in a virtual lobby where they will remain until the Panel is 
ready to start the meeting, at which time the host will admit them to the meeting.  
 
Document sharing  
 
16. (1) Before each party or third party takes the floor, it shall provide the Panel and other 
participants at the meeting with a provisional written version of its statement through DORA, 
including any exhibits.  
 
(2) Any participant wishing to share a document with the other participants during the 
meeting – including via screen sharing - shall upload the document to  DORA and confirm that WT/DS592/R/Add.1  
 
- 21 - 
 
 
 the other participants have received the document, before first referring to the document at 
the meeting.  
 
(3) Participants are encouraged to have DORA open to  facilitate upload and download of 
shared documents.  
 
 
Pauses for internal coordination and consultation  
 
17. Parties are free to internally coordinate and consult while the meeting is ongoing so long as it 
is not disruptive to the proceedings, but they sh ould be aware that the chat feature of the platform 
is visible to all participants. The Panel may briefly pause a session at any time, on its own initiative 
or upon request of a party, to enable any necessary internal coordination and consultation.  
 
Partic ipation  
 
18. Participants who are not speaking are expected to have their microphone on mute. They may 
also wish to turn off their camera to preserve bandwidth. If a participant wishes to take the floor, 
they should use the "raise a hand" function in the p latform. Once the chairperson gives the floor to 
the participant, they should unmute their microphone and turn their camera on.  
 
Communication breakdown  
 
19. Each party and third party will designate a contact person who can liaise with the host during 
the course of the meeting to report any technical issues that arise with respect to the platform. The 
parties and third parties shall immediately notify the Panel of any technical or connectivity issues 
affecting the participation of their delegation, or a me mber of their delegation, in the meeting. To 
do so, the party or third party that experiences the technical or connectivity issue shall:  
 
(1) if possible, immediately intervene at the meeting and briefly state the nature of the 
issue experienced; or  
 
(2) if doing so is not possible, immediately contact the host and explain the nature of the 
issue experienced. The host can be contacted via the platform chat, by sending an email to              
               @wto.org, or by telephone at  +41 22 739     . 
 
20. The Panel may suspend the proceedings until the technical issue is resolved or continue the 
proceedings with those that are connected.  
 
Relationship with the Working Procedures adopted by the Panel or Relationship with the 
adopted Wo rking Procedures  
 
21. These Additional Working Procedures complement the Working Procedures adopted by the 
Panel, and to the extent of any conflict between the two, supersede them.  
 
 WT/DS592/R/Add.1  
 
- 22 - 
 
   
 
 
INDONESIA — MEASURES RELATING TO RAW MATERIALS (DS592)   
 
THIRD -PARTY SESSION OF THE FIRST SUBSTANTIVE MEETING WITH THE PANEL  
 
DATE  
 
DELEGATION LIST OF [MEMBER]  
 
Full name  Position / Title  Email address  Phone number 
where the 
participant can 
be reached on 
meeting day  Whether the 
participant plans 
to attend the 
virtual meeting 
remotely or from 
the WTO premises  
     
     
     
     
     
     
     
 
 
 
Using boldface, please indicate who on the above list will deliver statements or is likely to take the 
floor during the meeting.  
 
Name and contact details of the person who will liaise with the host on technical issues:  
 
_______________  
 
 
 
 WT/DS592/R/Add.1  
 
- 23 - 
 
  ANNEX  B 
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of the European Union  24 
Annex  B-2 Integrated executive summary of the arguments of Indonesia  34 
 
 WT/DS592/R/Add.1  
 
- 24 - 
 
  ANNEX  B-1 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION  
1 INTRODUCTION  
1. The case concerns two measures of the Republic of Indonesia ("Indonesia"), namely firstly  the 
export prohibition of nickel ore ("the Export Prohibition") and secondly  the domestic processing 
requirements on nickel ore ("the Domestic Processing Requirement" ). These measures are 
inconsistent with Article   XI:1 of the General Agreement on Tariffs and Trade 1994 (the 
"GATT  1994") and Indonesia cannot advance any justification for them. Because of these 
inconsistencies, Indonesia's measures nullify and impair th e benefits accruing to the 
European  Union, directly or indirectly, under the covered agreements.  
2 THE MEASURES ARE INCONSISTENT WITH ARTICLE   XI:1 OF THE GATT  1994  
2.1 The Legal standard  
2. The terms  of Article   XI:1 of the GATT  1994 show that that provision contains a broad prohibition 
on export prohibitions and export restrictions. It is not necessary to quantify the limiting effect 
of the measures at issue in order to demonstrate that a measure is inconsistent with the 
provision.  
3. Nothing  in the text of Article   XI:1 of the GATT  1994 indicates that it only captures "border 
measures" and that therefore "internal measures" are excluded from its scope of application, as 
Indonesia claims. On the contrar y, several aspects of the very wording of this provision show 
that "internal" measures are within the scope of application of this provision.  
2.2 The Export Prohibition is inconsistent with Article   XI:1 of the GATT  1994  
4. Indonesia  has restricted the export  of nickel ore since at least 2014. This measure has been 
implemented through a variety of Indonesian legal instruments.  
5. Currently and since January 2020, Indonesia prohibits all exports of nickel ore. In the period 
Between at least 2014 and January 2020, the scope of the Export Prohibition has been adapted 
at times  for low -grade ore with a nickel content of less than 1,7 %, under conditions.  
6. The Export  Prohibition is inconsistent with Article   XI:1 of the GATT  1994, as it legally prohibits 
the exportation  of nickel ore.  
2.3 The Domestic Processing Requirement is inconsistent with Article   XI:1 of the 
GATT  1994  
7. The Domestic  Processing Requirement consists in a legal obligation imposed on all holders of 
mining licences in Indonesia to process/refine nickel ore in a manner specified in the relevant 
domestic Indonesian regulations, in particular MEMR Regulation 25/2018. Unprocessed nickel 
ore cannot be exported.  
8. The Domestic Processing Requirement is an export prohibition/restriction within the meaning of 
Article  XI:1 of the GATT  1994 because the legal obligation to purify and/or process raw mining 
products in Indonesia prior exporting the relevant goods is designed and operates so as to 
restrict the possibility to export the unpurified and unprocessed nickel  ore. A legal requirement 
to process nickel ore domestically – the existence of which Indonesia does not contest – is by 
its very design, architecture and revealing structure an export prohibition or restriction within 
the meaning of Article   XI:1 of the G ATT 1994: such requirement automatically means that the 
nickel ore in question cannot be exported anymore, as it is subject to mandatory processing.  WT/DS592/R/Add.1  
 
- 25 - 
 
  9. Indonesia's  argument that the Domestic Processing Requirement does not have a 'limiting effect' 
because the  temporal application of the Export Prohibition overlaps with the Domestic Processing 
Requirement should be rejected: Indonesia seems to consider that the two measures at issue in 
the present case (the Export Prohibition and the Domestic Processing Require ment) necessarily 
have to be assessed together. This is incorrect: the subject -matter of the present dispute are 
two distinct measures, and the Panel should assess them separately.  
3 THE MEASURES ARE NOT JUSTIFIED UNDER ARTICLE   XI:2 (A) OF THE GATT  1994  
10. The measures at issue do not meet any of the requirements of Article   XI:2 (a) of the GATT  1994. 
Indonesia has failed to demonstrate: (1) that there is a "critical shortage" of nickel ore; (2) that 
nickel ore is an "essential product" for Indonesia; and (3)  that the measures at issue are "applied 
temporarily".  
3.1 The measures are not designed to prevent a critical shortage of nickel ore, but 
instead to develop Indonesia's processing industry  
11. The measures  at issue are not designed to prevent a "critical sho rtage" of nickel ore. Rather, 
they are part of a long -standing Government policy aimed at assisting and promoting the 
development of Indonesia's processing industry of mineral products, including nickel ore.  This 
is evidenced by the explicit motivation in cluded in the legal instruments through which the 
measures at issue are implemented; by repeated and consistent public statements made by 
high-ranking Government officials, including Indonesia's President; and by numerous 
Government policy document includi ng planning documents. Moreover, an examination of the 
structure and design of the measures at issue reveals that, in practice, they are incapable of 
achieving the objective of preventing the alleged "critical shortage" of nickel ore.  The measures 
at issu e cannot, and will not, limit the production of nickel ore in Indonesia. The only practical 
effect of the measures at issue (and the only reason why they have been adopted) is replacing 
exports of nickel ore with exports of higher added value processed pro ducts, including stainless 
steel.  
3.1.1  The alleged risk of shortage is too remote  
12. In its first written submission Indonesia alleged that the measures seek to "prevent" a risk of 
shortage at some uncertain point in the future. In later submissions, however , Indonesia appears 
to be arguing that the measures at issue seek to address an existing critical shortage. Indonesia 
bases this new allegation on the assertion that, according to the Maryono report, in 2020 
domestic demand for nickel ore exceeded domestic  production.  
13. As explained by the European  Union, this assertion is highly misleading. The mere fact that in 
2020 the maximum theoretical processing capacity of the Indonesian smelters exceeded the 
production of nickel ore does not prove the existence of a  shortage of nickel ore. There are other 
reasons, besides a shortage of nickel ore, which may explain why the Indonesian smelters did 
not process nickel ore up to their maximum processing capacity in 2020. World demand and 
consumption of stainless steel, t he main final use of nickel ore, fell significantly during the first 
half of 2020, largely due to the impact of the COVID 19 pandemic. This may explain why 
production of nickel ore in Indonesia was slightly less in 2020 than in 2019 and, consequently, 
the capacity utilization rate of the smelting facilities was lower.  According to the U.S. Geological 
Survey, mine production in Indonesia increased by an estimated 30% between 2020 and 2021 
and was, therefore, much higher in 2021 than at any time prior to the  introduction of the Export 
Ban in 2019.  
3.1.2  The alleged risk of shortage is not temporary  
14. Furthermore, the "critical shortage" alleged by Indonesia does not stem from a temporary event 
(such as a "natural disaster") that causes a "passing need".  Indon esia has alleged that, in the 
absence of the measures in dispute, a "critical shortage" was "likely to ensue" because 
Indonesia's usable reserves "have a total lifespan of merely 6 years at current production and 
consumption levels". The progressive deplet ion reserves alleged by Indonesia is not, however, 
a "passing need". It is a definitive and unavoidable outcome, as long as mining continues. That WT/DS592/R/Add.1  
 
- 26 - 
 
  outcome cannot be "prevented" by applying export restrictions "temporarily", as required by 
Article   XI:2(a).   
3.1.3  The alleged risk of shortage has been self -created by Indonesia through the 
application of the measures at issue    
15. As shown by the European  Union, there is no shortage of nickel ore, whether "existing" or 
"imminent". In any event, the alleged shor tage could not be regarded as "critical" because it 
would be a structural and durable shortage self -created by Indonesia through the use of export 
restrictions. In essence, Indonesia argues that it needs to maintain export restrictions in place 
in order to  ensure the future supply of a domestic processing industry created by applying those 
export restrictions. Upholding that justification would be tantamount to rewarding Indonesia for 
the persistent breach of one of its most fundamental WTO obligations.  
3.1.4 The alleged "deficiency in quantity" is neither likely nor serious  
16. Indonesia has failed to show that the alleged risk of "deficiency in quantity" of nickel ore is 
sufficiently likely and grave so as to rise to the level of a "critical shortage".  
17. As just explained, Indonesia's most recent allegation that there is a "current imbalance" between 
supply and demand of nickel ore is entirely baseless.  
18. As regards Indonesia's allegation that Indonesia's usable reserves of nickel have a total lifespan 
of merely 6 years from 2019, the European  Union has shown that the Maryono report 
underestimates considerably Indonesia's current reserves.  
19. The complete exc lusion of limonite and LGSO from the estimate of reserves over the period 
2020-2026 is unwarranted.  
20. The lack of CP verification might justify a reasonable downward adjustment of the reserves 
reported to the Geological Agency. On the other hand, excluding e ntirely any reserves which do 
not comply with that requirement is manifestly disproportionate in order to address the 
"shortcomings" invoked by Indonesia. Moreover, it is counterproductive, as it results in an 
estimate that is far less accurate and credibl e than the Geological Agency's estimate, which does 
include those reserves.  
21. Moreover, the Maryono report uses an asymmetrical methodology where supply and demand 
are assessed on a different basis. Whereas the report takes into account a projected (and 
massive) increase in smelter ore consumption between 2020 and 2026, it assumes that no new 
reserves of nickel ore will be added during the same period. That assumption, however, is 
manifestly unreasonable.  
22. Indonesia's allegations of a critical shortage of nick el "in the short term" are refuted by other 
evidence, including evidence supplied by Indonesia in this dispute. For example, according to 
Indonesia's "Mining Guidance (2020)", published in 2020 by Indonesia's Directorate General of 
Mineral and Coal , "The i nvestment opportunity of smelter in Indonesia is very promising since 
the mineral mining production is very high and the reserves availability is still abundant for a 
long term".  
23. Indonesia's allegations are further contradicted by the massive investments made in recent 
years in additional capacity for processing nickel ore in Indonesia, including by Indonesia's state 
owned enterprises.  
3.2 Nickel is not an "essential product" for Indonesia  
24. Indonesia has failed to demonstrate that nickel is an "essential pr oduct" within the meaning of 
Article   XI:2(a) of the GATT  1994.  As explained by the European  Union, the relative economic 
importance of the product concerned is irrelevant for the purposes of Article   XI:2(a). That 
provision is not designed to enable Memb ers to use export restrictions as an instrument of 
industrial policy with a view to promoting the development of sectors which each Member 
regards as being of particular importance to its economic development.   WT/DS592/R/Add.1  
 
- 27 - 
 
  25. Contrary to Indonesia's assertions, there is  nothing in the report of the Appellate Body in China - 
Raw Materials which may lend support to Indonesia's misguided reading of the term "essential 
product". The issue of whether a product can be regarded as "essential" within the meaning of 
Article   XI:2( a) by reason of its relative economic importance was not before the Appellate Body. 
The mere fact that, as clarified by the Appellate Body, Article   XI:2(a) may be invoked with 
regard to a critical shortage of an exhaustible natural resource caused by extr aordinary 
circumstances, such as a "natural disaster"1, does not have the implication that the "essential" 
character of a product is to be determined in view of its relative economic importance.   
26. Furthermore, the measures at issue do not help Indonesia's  nickel ore sector. To the contrary, 
they limit demand for Indonesia's nickel ore and depress prices in Indonesia's domestic market. 
It is illogical to invoke the economic importance of the nickel ore sector in order to justify a 
measure which is detriment al to that sector. It is even more illogical to invoke that Indonesia is 
one of the largest exporters of nickel as a justification for banning those exports. As regards 
other economic indicators cited by Indonesia in its second written submission, the 
European Union notes that the nickel mining industry could be a larger source of government 
revenue and employment in the absence of the measures at issue.  
27. The measures at issue are designed to assist Indonesia's processing industry, and in particular 
the stai nless steel industry. Indonesia's production of stainless steel already exceeds by far 
Indonesia's present and foreseeable future domestic needs. Largely as a result of the measures 
at issue, Indonesia has become one of the world's largest exporters of sta inless steel. 
Furthermore, Indonesia's exports of stainless steel are projected to continue to increase 
massively over the next few years. Even assuming that the relative economic importance of the 
product concerned was relevant for the purposes of Article   XI:2(a), none of these developments 
might be regarded as "essential" within the meaning of that provision.  
3.3 Indonesia has failed to demonstrate that the measures are temporarily applied  
3.3.1  The Legal Standard  
28. It is apparent from the wording of Art.  XI:2(a) of the GATT  1994 that the defence which that 
rule provides for only applies to measures which are "temporarily applied to prevent or relieve 
critical shortages of foodstuffs or other products essential to the exporting contracting party".  
29. The ver y drafting of this provision shows that the limitation to measures which are "temporarily 
applied" is linked to the objective pursued by the measures, namely to prevent or relieve the 
critical shortages to which that provision makes reference.  
30. It must be p ossible to clearly identify the temporal limitation of the measure from its design, 
architecture and objective. It cannot be sufficient in this respect that the Member in question 
simply alleges that the measure is temporal. Rather, objective aspects of th e measure, capable 
of being properly scrutinised by a panel, must indicate that the measure is only temporarily 
applied.  
3.3.2  The Measures at issue are not applied only temporarily  
3.3.2.1   The Export Prohibition is not applied only temporarily  
 
31. Indonesia  supplies no valid argument why the Export Prohibition was adopted in order to address 
a "passing need", or to face a situation which was expected to last only a limited amount of time. 
On the contrary, the record before the Panel demonstrates that the Ind onesian measures pursue 
a different objective, and that they are not only "temporarily applied".  
32. Indonesia argues that the Export Prohibition on nickel ore is applied only temporarily, because 
– according to Indonesia – previous export prohibitions on nick el ore were applied only 
temporarily. This argument is conceptually wrong, and it relies on an incomplete and misleading 
description of the past application of export prohibitions on nickel ore.  
 
1 Appellate Body Report, China - Export Restrictions , para. 337.  WT/DS592/R/Add.1  
 
- 28 - 
 
  33. First, it is unpersuasive to refer to the way in which export prohibitions were applied in the past 
to argue that the current export prohibition is also only applied temporarily.  
34. Second , in any event, Indonesia's argument relies on a misleading description of the way in 
which the export prohibition on nickel ore was applied in the past. Indonesia suggests that since 
2014 the export prohibition has been in force only on an interim basis. But Indonesia's policy is 
best described as a (complete) ban on nickel ore export at least since January 2014, which was 
however slightly relaxed with regard to low -grade nickel ore, for limited periods of time, and 
under strict conditions. Indeed, what is apparent is that Indonesia has been applying an export 
prohibition on nick el ore for a significant number of years, with slight modulations of the scope 
of that policy. This can hardly be seen as evidence for the proposition that the export prohibition 
was only temporarily applied in the past.  
35. Further, Indonesia argues that the export ban implemented by MEMR Regulation 11/2019 and 
MOT Regulation 96/2019 was only in application for 14 days at the time of panel establishment. 
This argument is also misguided and should be rejected.  
36. The amount of t ime during which a measure was applied before panel establishment cannot be 
a persuasive argument when determining whether that measure is only temporarily applied.  
37. In any event, Indonesia's argument is based on an incorrect description of the length of 
application of the Export Ban on nickel ore currently being applied by Indonesia. Indonesia 
pretends that that ban has only been applied for "merely 14 days" at the time of panel 
establishment.  
3.3.2.2   The domestic processing requirement is not only tempor arily applied  
 
38. Indonesia's argument concerning the duration of application of the Domestic Processing 
Requirement is based on the proposition that that requirement was only 'applied' in those periods 
of time when no export prohibition on nickel ore was app lied. This proposition is unconvincing 
as it is based on an incorrect description of the relationship between the Domestic Processing 
Requirement and the Export Prohibition.  
4 THE MEASURES ARE NOT JUSTIFIED UNDER ARTICLE   XX (D) OF THE GATT  1994  
4.1 Intro duction  
39. Indonesia claims that the two measures are justified under Article   XX (d) of the GATT  1994 as 
they are "preventative measures" adopted to secure compliance with its "comprehensive policy 
for [the] sustainable mining and mineral resource management ".2  
40. The European  Union maintains that Indonesia has not demonstrated that the legal standard 
under Article   XX (d) is met and, in any event, there are less trade restrictive and reasonably 
available alternatives to the highly trade restrictive measures i t has applied.  
4.1.1  Any "law or regulation" relied upon under Article   XX (d) must be sufficiently 
identified and must contain a sufficient degree of normative content  
41. A party invoking Article   XX (d) must, as a preliminary step, identify the "laws or re gulations" 
with which it contends the measure at issue are designed (and necessary) to secure compliance. 
For the purposes of Article   XX (d), the term "laws or regulations" has been held to refer to " rules 
that form part of the domestic legal system of a WTO Member ". As the concept of securing 
compliance is central to the defence embodied in Article   XX (d), the rules in question must 
contain a sufficient degree of normative content. Indeed, the concept of "compliance" denotes a 
link with enforceability. T he Appellate Body has recognised that the broader the terms in which 
a law or regulation is drafted, the more complex the task of identifying that normative content 
becomes (India Solar cells, paragraph 5.110).  
 
2 Indonesia’s first written submission, para. 145.  
 WT/DS592/R/Add.1  
 
- 29 - 
 
  42. During  the second substantive meeting, Indon esia clarified that the relevant laws or regulations 
that it contends the challenged measures seek to secure compliance with are set out in Article  s 
96(c) and (d) of Law No. 4/2009 and Article   57 of Law No. 32/2009.  
43. The European  Union does not contest t hat Article   96 (c) and (d) of Law No. 4/2009 and 
Article   57 of Law No. 32/2009 form part of the domestic legal system in Indonesia. Nor does it 
contest the WTO consistency of those laws as such.  However, Indonesia has not sufficiently 
identify the rules  or course of conduct which it claims those provisions prescribe.  
44. Article   96 of Law No. 4/2009 sets out obligations that IUP and IUPK holders must implement. 
These include "c. mining environment management and monitoring, including reclamation and 
post-mining activities;" and "d. mineral and coal conservation efforts." These provisions are 
framed in general terms and define a broad task as opposed to specific rules or a course of 
conduct. Therefore, they are insufficiently specific to constitute a rule or  regulation with which 
compliance is to be secured within the meaning of Article   XX (d).  
45. Article   57 of Law No. 32/2009 provides for different means by which the "maintenance of 
environment shall be conducted". This provision is formulated in very genera l terms, is 
potentially extremely broad in scope and as such also lacks the requisite degree of normative 
content or specificity for the purposes of Article   XX (d). Moreover, whilst Indonesia asserts in 
its responses to the Panel questions that Article   57 contains sustainable mining requirement 
because it refers to "preservation of the function of the atmosphere", this is not substantiated.   
4.2  Indonesia has not demonstrated that the measures are designed to secure 
compliance with rules relating to envi ronmental protection or the management of 
natural resources  
46.  In the event that the Panel considers Indonesia has sufficiently identified "laws or regulations" 
within the meaning of Article   XX (d), (quod non), Indonesia has, in any event, failed to 
demonst rate that the measures at issue are designed in terms of their "content, structure and 
expected operation", to secure compliance  with laws or regulations aimed at environmental 
protection or the conservation of natural resources. As already explained, the measures are in 
fact designed to increase the added value of Indonesia's exports.  
47. The European  Union recalls that the Panel is not required to consider the aptitude of Article   96 
and Article   57 to meet their stated environmental objectives, but rather th e aptitude of the two 
measures to secure "compliance" with those rules.  Therefore, prior panels have found that 
measures that may be consistent with or further the objectives of a law or regulation, but which 
do not enforce any obligations contained there in, do not fall within the scope of Article   XX (d). 
In other words, even if a measure (such as a ban) has an incidental consequence on furthering 
a policy objective, this is not sufficient for it to fall within the scope of Article   XX (d).  
4.2.1  Export B an 
48. Indonesia's  arguments can be distilled down to a claim that as in the past nickel ore extraction 
was export oriented and as there were documented issues of predatory mining practices in the 
Sulawesi and Maluku regions , the ban on all exports is "designed" to ensure compliance with 
domestic environmental standards and ensure compliance with rules relating to the conservation 
of natural resources. Indonesia links this claim to a further assertion that the ban " reduces total 
nickel ore production an d extraction, therefore contributing to the proper enforcement of good 
mining practice requirements and to the proper management of Indonesia's nickel reserves and 
resources ".3 
49. Indonesia's arguments are misconceived and unsubstantiated.  
50. Indonesia has not demonstrated that the export ban is 'designed' to secure compliance with 
domestic environmental standards. The evidence it has adduced confirms that it is designed to 
increase value of nickel ore.  
 
3 Indonesia’s response to question 45.b.   WT/DS592/R/Add.1  
 
- 30 - 
 
  51. The export ban is not 'designed' to reduce nickel ore prod uction or extraction. There is no limit 
on domestic consumption or extraction. The export ban is designed to change the destination of 
ore once it is extracted and increase domestic smeltering.  
52. Indonesia  invites the panel to presume that because there hav e been issues with illegal mining 
in the past and because almost all ore was for export, it is the end destination of the ore which 
is the driver of compliance issues. However, the compliance issues it identified relate to the 
geography of Indonesia and es sentially un -particularised and vague so -called "jurisdictional" 
issues. Moreover, whilst the European  Union does not dispute that there is evidence of 
environmental damage on the record, Indonesia has not demonstrated that this is due to the 
destination o f the ore as opposed to the process of mining and extraction itself.  
4.2.2  Domestic Processing Requirement  
53. Indonesia claims that the Domestic Processing Requirement is designed to secure compliance 
with Indonesia's sustainable mining and environmental rul es by (i) creating vertical integration 
in the supply chain and (ii) by discouraging spot sales of nickel ore.  
54. Indonesia has not demonstrated that the Domestic Processing Requirement was designed for 
this purpose. Indeed, Indonesia has not demonstrated th e nexus between the "laws or 
regulations" with which it is seeking to secure compliance and this measure.  
55. First, there are no specific references in the legislation establishing the domestic processing 
requirement to the provisions on which Indonesia reli es for the purpose of its claim under 
Article   XX (d).  
56. Second, the documents on the record attest to the true objective of the domestic processing 
requirement, namely increasing domestic smelting capacity.  
4.3 Indonesia has not demonstrated that the meas ures are necessary to secure 
compliance with rules relating to environmental protection or the management of 
natural resources  
57. Indonesia has failed to show that these specific measures are necessary within the meaning of 
Article   XX (d) of the GATT.  
58. First, whilst the European  Union does not dispute that environmental protection and the 
conservation of natural mineral resources in principle constitute legitimate societal interests, 
Indonesia has not shown that the actual objective pursued by the measures is  to secure 
compliance with rules on environmental protection and the conservation of natural resources. 
Second, Indonesia has not shown that these particularly trade restrictive measures are 
necessary to achieve that purported objective in the sense that t hey contribute sufficiently to 
their achievement. Third, less trade restrictive alternatives are reasonably available to Indonesia 
to make an equivalent contribution to the compliance objective allegedly pursued. Indeed, in 
order to show that a measure is "necessary" under Article   XX (d), a party relying on that 
exception must do more that demonstrate that the measure is capable of contributing towards 
that objective. The Panel is required to conduct a holistic assessment, taking in to account not 
only the  objective pursued but also the degree of trade restrictiveness and the contribution of 
the measures.  
4.3.1.1  Trade restrictiveness  
 
59. The export ban is an extremely trade restrictive measure preventing all exports of all nickel ore. 
This does not appear t o be disputed.  
60. Indonesia invites the Panel to conclude that the Domestic Processing Requirement has no 
restrictive effects over the ban. As explained above, this is misconceived. The two measures fall 
to be assessed separately. It is also highly trade rest rictive, preventing the export of 
unprocessed nickel ore.  
4.3.1.2  Contribution  WT/DS592/R/Add.1  
 
- 31 - 
 
   
61. Indonesia  appears to believe that as it contends the laws and regulations on which it relies form 
part of an overall mining policy, it is exonerated from the requirement to de monstrate the 
contribution, in quantitative or qualitative terms that the measures may make to securing their 
compliance objective. However, even if the Panel were to accept that the export ban and 
domestic processing requirement are part of a general 'sus tainable' mining policy, Indonesia 
must still adduce evidence showing that there is a genuine relationship of ends and means as 
between the interest invoked (securing the enforcement of environmental/sustainable mining 
rules) and the measures themselves. I t has failed to do so.  
62. Indonesia  claims that the export prohibition on nickel ore demonstrably reduces the amount of 
nickel extracted, which in turn mitigates the negative environmental consequences of nickel 
mining and the risks of resource depletion.  
63. The relevant  legal question, however, is the contribution of the measures to addressing the 
enforcement of the environmental/ conservation standards identified. Moreover, the claim that 
there is a reduction in extraction is not substantiated.  
64. Indonesia's  reasoning also presupposes that such environmental effects as it has demonstrated 
are caused (and will continue to be caused) by the exportation of nickel ore. However, Indonesia 
has not demonstrated that the extraction of nickel ore for export s as opposed to the extraction 
of nickel ore as such is responsible for the scope of the adverse environmental effects it 
identified. The alleged causal link reposes on the sole basis that historically nickel ore that was 
extracted from predatory mining pr actices was for export (as was a large proportion of all nickel 
ore mined in Indonesia). This does not account for legal exports of ore.  
65. Moreover , Indonesia has placed evidence on the record that demonstrates that environmental 
issues continue. This indicates precisely that limiting the ultimate destination of the ore is not 
apt to secure compliance with the environmental standards.  
66. Indonesia relies on affidavit evidence and expert reports prepared during the course of the 
proceedings  to affirm that e nforcement of the environmental standards has improved since the 
introduction of the export ban and Domestic Processing Requirement. However, Indonesia's own 
export acknowledges that in 2020, changes to enforcement structures were introduced 
(centralisatio n), and that these changes have impacted significantly on the issuing of licences 
and monitoring functions. Indonesia has never suggested that these measures are necessary to 
secure compliance with rules that criminalise breaches of specific environmental standards, nor 
that they are necessary to secure compliance with a prohibition on predatory mining.  
67. In any event, it is not possible to assess the contribution of the measures to the compliance 
objective on the basis of this evidence which does not show c ausality nor account for other 
significant changes in the regulatory system.  
68. As to the domestic processing requirement, Indonesia has not substantiated its claim that 
compliance  with the same environmental standards that were applicable previously is bett er 
secured through the alleged changes to vertical integration this measure induces. Nor has it 
shown that removing spot sales is a necessary means to secure compliance.  
69. The long term supply contracts Indonesia refers to do not apply to the whole of the d omestic 
market. The only enforcement issues Indonesia initially identified related to the remote 
geography of the regions where the mines are situated. Whilst Indonesia claims that it is now 
easier to check that the volumes of ore sent for domestic process ing match the authorised 
quantities in the mining permits, it has not advanced any persuasive argument as to why this 
type of check could not be undertaken as regards exports and hence, why this is a necessary 
measure. It refers to generalised "jurisdictio nal" issues but has not shown why it is necessary 
to address these though a total export ban and the Domestic Processing Requirement.  
4.3.2   There are adequate less, or non -trade restrictive alternatives to the export ban 
and domestic processing requiremen t that would achieve the alleged objective  WT/DS592/R/Add.1  
 
- 32 - 
 
  70. Indonesia  asserts that each of the two measures it identifies pursue one single objective, namely 
securing compliance with the rules on environmental standards and resource conservation as 
defined in the legal pro visions it identifies as the relevant laws or regulations for these purposes 
(Article   96 (c) and (d) of Law No.4/2009 and Article   57 of Law No.32/2009).  
71. There are adequate less or non -trade restrictive measures which could equally contribute to that 
alleged objective and the European  Union has proposed one such alternative measure.  
72. Whilst the European  Union must show that its alternative would contribute equally in addressing 
the compliance  issues that Indonesia has identified, the European  Union is not  required to 
identify two separate measures and nor is it required to identify an alternative measure that 
applies the same regulatory approach to that in the Indonesian measures. Moreover, for the 
Panel's assessment, the relevant objective is that of secu ring compliance with environmental 
standards, as opposed to other effects that the Indonesian measures may allegedly have.  
73. As an alternative to the complete ban on exports and the Domestic Processing Requirement, the 
European  Union proposes an export auth orisation system, whereby exports of nickel ore would 
be permitted upon production by the exporter of a document attesting that the nickel ore has 
been mined in compliance with all the environmental requirements that Indonesia purports to 
enforce through t hese measures. This type of export authorisation system could build on the 
mechanisms introduced previously in Indonesia domestic law as CnC certification. However, it is 
different to that scheme.  
74. According  the legislative provisions cited by Indonesia, C nC certification was afforded at the 
point in time when a mining permit was issued. To the extent that it was relevant in the context 
of export authorisations, this was only as a check that the permit holder had been granted this 
status.  
75. Under the alterna tive proposed by the European  Union, the export authorisation system would 
require  a check at the point of export that each specific consignment of ore for which export 
approval is sought meets the environmental standards Indonesia claims it is seeking to secure 
compliance with. The same system could equally entail a check that the quantities of ore 
correspond to those authorised in the RKAB.  
76. Indonesia claims that the contribution of its domestic processing requirement is that it allows 
this specific level  of regulatory scrutiny and that it maintains control within the jurisdiction. The 
European  Union's alternative would be a less trade restrictive means to extend equivalent 
regulatory scrutiny to the point of export – whilst maintaining the checks within I ndonesia's 
jurisdiction.  
77. Indonesia claims that it can only reduce extraction rates and ensure compliance with 
environmental standards if it controls demand. This argument must be assessed in a context in 
which it has introduced  no measures to control dome stic demand or consumption. To the extent 
that this argument is then linked to alleged jurisdictional issues, these can, as explained above, 
be resolved by imposing a check within the territory of Indonesia prior to export.  
78. Whilst , the precise substantive  scope of CnC certification and in particular the environmental 
standards and sustainable mining requirements it encompassed, has not been fully explained or 
substantiated by Indonesia, given that currently Indonesia applies a complete ban on exports of 
nickel ore, rather than a system of prior export authorization, the proposed alternative is plainly 
not part of the measures already applied.  
4.4  Indonesia has not demonstrated that the application of the measures is consistent 
with the chapeau of Article   XX of the GATT  1994  
4.4.1   The Legal Standard  
79. The chapeau imposes an additional discipline on the exception provided by Article   XX of the 
GATT  1994. In order to be successful in claiming that a certain measure which is inconsistent 
with the disciplines o f the GATT  1994 is justified by application of Article   XX, the Member relying 
on this exception must not only demonstrate that the specific conditions in the relevant WT/DS592/R/Add.1  
 
- 33 - 
 
  subparagraphs (a) to (j) of Article   XX are fulfilled; but also that they comply with th e chapeau, 
which contains further conditions and limitations of the defence under Article   XX. 
80. With regard to the interpretation of "arbitrary or unjustifiable discrimination", prior Appellate 
Body jurisprudence therefore underscores the importance of exam ining the question of whether 
the discrimination can be reconciled with, or is rationally related to, the stated policy objective 
of the measure.  
81. Concerning the correct order of analysis, it will normally be appropriate for a panel to first assess 
whether the specific conditions of one of the specific exceptions listed in Article   XX (a) to (j) of 
the GATT  1994 are met, before turning to the disciplines set out in the chapeau, there may be 
cases where the panel can properly determine whether the conditions of Article   XX are fulfilled 
by finding that the chapeau has not been complied with. The European  Union considers that the 
present case may be one of these instances and that the Panel could therefore start its analysis 
by determining that the conditions o f the chapeau are not met.  
4.4.2   Indonesia's measures do not comply with the chapeau of Article   XX of the 
GATT  1994  
82. Indonesia's measures clearly discriminate between foreign and domestic purchasers of nickel 
ore. 
83. This discrimination is also arbitrary and  unjustifiable. The measures at issue cannot be reconciled 
with, or be regarded as rationally related to, the alleged policy objective of the measures at 
issue. Indonesia's Export Prohibition and Domestic Processing Requirement prohibit and restrict 
export s, while they in no way whatsoever limit domestic consumption of nickel ore. Indeed, the 
European  Union has demonstrated that Indonesia tries to foster a stronger domestic use of nickel 
ore. These measures cannot therefore be related to the alleged objecti ve of environmental 
protection or the conservation of mineral resources insofar as they impose no limit on the 
domestic use of nickel ore.  
84. Indonesia's measures therefore amount to arbitrary and unjustifiable discrimination within the 
meaning of the chapeau. As these measures are in reality designed to shift resources to domestic 
producers by resorting to means which are inconsistent with Arti cle  XI:1 of the GATT  1994, 
these measures can be regarded as "disguised restrictions on international trade" within the 
meaning of the chapeau: Indonesia alleges in the present proceedings that the measures service 
environmental concerns (and compliance w ith laws designed to safeguard such concerns), while 
in reality the objective pursued is to strengthen domestic industry.  
85. The European  Union therefore considers that Indonesia has not demonstrated that its measures 
comply with the chapeau of Article   XX of the GATT  1994.  
 WT/DS592/R/Add.1  
 
- 34 - 
 
  ANNEX  B-2 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF INDONESIA  
I. INTRODUCTION  
 
1. At the core of this dispute is access to Indonesia's nickel resources.  
2. Two decades  ago, the exploitation of Indonesia's nickel was relatively manageable. However, 
between 2006 and 2013, Indonesia's nickel ore production increased more than seven -fold, with 
dire consequences for Indonesia's environment and the sustainability of its nickel resources. 
Predatory mining activities resulted in substantial environmental degradation in nickel producing 
areas: deforestation, land disturbance, water and soil contami nation, and other environmental 
impacts associated with export -oriented nickel mining threatened the integrity of the Indonesian 
environment, and the livelihoods of indigenous people, fauna and ecosystems. Moreover, increased 
nickel extraction put a strain  on Indonesia's nickel reserves and increased depletion rates to 
unsustainable levels. If left unchecked, nickel -mining activities in Indonesia would shortly result in 
the complete depletion of Indonesia's nickel reserves, leaving behind the curse of envir onmental 
destruction as a legacy for the Indonesian people.1          
3. To mitigate these risks, Indonesia adopted a comprehensive policy framework to regulate 
mining activities. This comprehensive mining policy comprised multiple legal instruments such as a 
new basic mining law, environmental protection laws, water and forestry laws, a new resource 
conservation policy, improved resource and reserves reporting mechanisms, raw material 
certification, land reclamation and post -mining activities, among others. It imposes a number of 
requirements on regulators and private operators alike, with the objective of promoting sustainable 
mining practices and adequate management of Indonesia's mineral resources. Temporary export 
moratoria succeeded in immediately curbin g nickel production to sustainable levels, and in enabling 
enforcement of Indonesia's comprehensive policy for mining activities. The results obtained were so 
significant that Indonesia gradually relaxed the export prohibition on nickel ore over time, and 
allowed Indonesian producers to resume export activities.     
4. However, Indonesia  is once again facing a second "gold rush" for its nickel resources. While 
global and domestic demand for nickel ore as an input into steel production remains strong, demand 
for nickel ore as an input to produce electric vehicle (EV) batteries is expected to explode in the next 
20 years. Thus, Indonesia's nickel reserves and environment are once again at a critical juncture. 
The measures that have been challenged by the European  Union in this dispute are crucial elements 
of Indonesia's comprehensive policy framework on sustainable mining and mineral resource 
management.2     
5. This dispute is one of the most systemically important disputes before the WTO dispute 
settlement mechani sm to date. Stripped to its essence, this dispute concerns whether WTO 
disciplines authorize developing WTO Members to use trade measures as part of a comprehensive 
policy framework to manage their natural resources in a sustainable manner, to the benefit of their 
economies and people.3  
6. The European  Union appears to consider that that the WTO Agreements have removed trade 
measures from the policy -makers' toolkit, and have conferred upon developed countries an 
unfettered right to the natural resources of d eveloping WTO Members.4 Indonesia disagrees. As 
stated in the preamble of the WTO Agreement, the covered agreements seek to expand production 
of and trade in goods and services, "while allowing for the optimal use of the world's resources in 
accordance with the objective of sust ainable development, seeking both to protect and preserve the 
environment". In furtherance of this objective, the covered agreements — and in particular the 
GATT  1994 — provide developing WTO Members with sufficient policy space to use trade measures, 
 
1 Indonesia's first written submission, paras. 5 -6. 
2 Indonesia's first written submission, paras. 9 -10. 
3 Indonesia's opening statement at the first meeting of t he Panel, para. 3.  
4 Indonesia's first written submission, para. 2.  WT/DS592/R/Add.1  
 
- 35 - 
 
  such as those at issue in this dispute, to manage their natural resources and protect the environment 
in a WTO -consistent manner.5     
7. The question before this Panel is whether the WTO will remain true to the terms of the original 
bargain that its Members str uck in 1995; whether sustainable development is something more than 
an empty slogan, an aspiration; or whether, instead, WTO disciplines are sufficiently flexible to allow 
developing WTO Members to overcome the "resource curse" and develop themselves econo mically, 
while seeking to preserve and protect their natural resources and environment .6  
8. The Panel  must interpret the GATT  1994 in a manner that is consistent with the sustainable 
development objective in the first recital of the preamble to the WTO Agre ement, and upholds the 
international law principle of Permanent Sovereignty over Natural Resources (PSNR).7 This principle 
has attained the privileged status of customary international law, and the Panel is mandated to apply 
it pursuant to  Article  31(3)( c) of the Vienna Convention and  Article  3.2 of the DSU.8 The principle 
of PSNR " affords Members the opportunity to use their natural resources to promote their own 
development while regulating the use of these resources to ensure sustainable development. "9      
9. In this dispute, the European  Union invites the Panel to interpret the relevant provisions of 
the GATT  1994 in a manner that would empty the principle of PSNR of its normative content. The 
Panel must reject this invitation and, instead, interpret the relevant provisions of the GATT  1994 
harmoniously with the principle of PSNR, as required by  Article  31(3)(c) of the Vienna Convention.10  
10. First, the principle of PSNR pleads against an interpretation of  Article  XI:1 under that 
effectively prohibits  any non -discriminatory internal domestic regulations that have indirect impacts 
on competitive opportunities for exports. The corollary of such a reading is that importing countries 
have an unfettered right to the natural resources of exporting countries in the form of their raw 
materials. This is simply incompatible with the right of every country to exercise their permanent 
sovereignty over their natural wealth and resources "in the interest of their national development 
and the well -being of the people of the State concerned ."11 
11. Second, the principle of PSNR weighs against a reading of  Article  XI:2(a) of the GATT  1994 
under which measures  taken to prevent or relieve a critical shortage of natural resources are 
considered "incapable" of doing so simply because domestic production or consumption is not 
restricted. Likewise, the principle of PSNR does not support an interpretation of  Article  XX(d) of the 
GATT  1994 under which domestic production and consumption must necessarily  be restricted in 
order to s ecure compliance with laws and regulations aimed at preserving the environment and 
conserving natural resources. The European  Union's interpretation, predicated on the proposition 
that economic development and environmental and conservation efforts are som ehow incompatible, 
does not comport with the principle that "[e]very country has the sovereign right … freely to dispose 
of its natural resources in the interest of the economic development and well -being of its own 
people."12  
12. Third, the principle  of PSNR pleads against  a reading of  Article  XI:2(a) under which the 
relative economic importance of a product is entirely irrelevant  for the purposes of that provision, 
because the reference to "foodstuffs" in  Article  XI:2(a) purportedly implie s that only products that 
are "absolutely indispensable" to meet "the vital needs of the population" can be deemed "essential" 
under  Article  XI:2(a).13 Such an interpretation would render  Article  XI:2(a) unavailable to prevent 
critical shortages of natu ral resources that are absolutely indispensable to the economies of WTO 
Members because they guarantee the livelihoods of millions of people. This is simply incongruent 
 
5 Indonesia's first written submission, para. 3.  
6 Indonesia's opening statement at the first meeting of the Panel, para. 8.  
7 Indonesia's opening statement at the second meeting of the Panel, para. 14.  
8 Indonesia's response to Panel question No. 80, para. 273.  
9 Panel Report, China – Raw Materials , para . 7.381.  
10 Indonesia's response to Panel question No. 80, para. 278.  
11 Indonesia's comments on the European  Union's response to Panel question No. 80, para. 32 (quoting 
United Nations General Assembly Resolution 1803 (XVII), Permanent Sov ereignty Over Na tural Resources, 14 
December 1962 , Exhibit IDN -131 (emphasis added)).  
12 Indonesia's comments on the European  Union 's response to Panel question No. 80, para. 32  (quoting  
Proceedings of the United Nations Conference on Trade and Development, Geneva, 23 Mar ch-16 June 1964 – 
Vol.I: Final Act and Report by UNCTAD, Exhibit IDN -132, p. 10).  
13 European  Union's second written submission, paras. 131 and 132.  WT/DS592/R/Add.1  
 
- 36 - 
 
  with the "inalienable right of all countries to exercise permanent sovereignty over the ir natural 
resources in the interest of their national development ."14    
13. Fourth , the principle of PSNR is relevant to, and must be taken into account in, the 
interpretation of the chapeau of  Article  XX of the GATT  1994. In particular, it pleads against an 
interpretation of the chapeau under which a distinction between foreign and domestic purchasers 
constitutes "arbitrary or unjustifiable discrimination". The corollary of such a reading, again, is that 
importing countries have an unfettered righ t to the natural resources of exporting countries in the 
form of their raw materials, and this is simply incompatible with the right of every country to exercise 
sovereignty over their natural wealth and resources "in the interest of their national development."15  
14.  Indonesia is confident that this Panel will interpret the GATT  1994 in a manner that is 
consistent with the sustainable development objective in the first recital of the preamble to the WTO 
Agreement, and upholds the international law principle of PSNR.16 The multilateral trading system 
is ripe for a finding that developing Members may use trade measures for sustainability and 
conservation purposes.17                     
II. INDONESIA'S PRELIMINARY JURISDICTIONAL CLAIM   
 
15. In its first written  submissio n, Indonesia raised a preliminary jurisdictional challenge under 
Articles 6.2 and 7.1 of the DSU in relation to MEMR Regulations 7/2012, 11/2012, 20/2013, and 
1/2014. As Indonesia explained, these measures had not been subject to consultations, and their 
addition to the panel's terms of reference impermissibly expanded the temporal scope of the dispute 
and changed its essence to include measures that permitted rather than prohibited the exportation 
of nickel ore. Indonesia therefore requested that the Panel  find that these measures are outside of 
its terms of reference under Articles 6.2 and 7.1 of the DSU.18 It was not necessary for the Panel to 
issue a preliminary ruling to this effect, insofar as the European  Union did not appear to seek findings 
of inco nsistency in respect of the added measures. Subsequently, in its opening statement at the 
first meeting of the Panel, the European  Union confirmed that it only sought panel findings in relation 
to the measures that currently implement the two measures at i ssue, namely, MEMR Regulations 
25/2018 and 11/2019, and MOT Regulation 96/2019.19  
16. Later in the proceedings, the European  Union appeared to change its position, expressly 
requesting the Panel to make findings in relation to MEMR Regulation 1/2014 because this legal 
instrument purportedly was "still in force."20 As Indonesia clarified, however, MEMR Regulation 
1/2014 is no longer in force  as subsequent MEMR Regulations have expressly revoked it.21 The 
exclusive bases for the export prohibition on nickel ore presently in place are MEMR Regulation 
11/2019 and MOT Regulation 96/2019.  
17. The European  Union subsequently agreed that MEMR Regulation 1/2014 is no longer in force.22 
Given the European  Union's confirmation that it only seeks findings in relat ion to the current bases 
of the export prohibition on nickel ore, it may not be necessary for the Panel to determine whether 
this measure falls within its terms of reference.  
 
14 Indonesia's comments on the European  Union 's response to Panel question No. 80, para. 3 5 (quoting 
United  Nations General Assembly  Resolution 2158 (XXI),  Permanent Sovereignty Over Natural Resources,  25 
November 1966, Exhibit IDN -133, p. 29 (emphasis added)).  
15 Indonesia's comments on the European  Union 's response to Panel question No. 80, para. 36 (quoting  
United Nations General Assembly Resolution 1803 (XVII), Permanent Sov ereignty Over Natural Resources, 14 
December 1962 , Exhibit IDN -131 (emphasis added)).  
16 Indonesia's opening statement at the second meeting of the Panel, para. 14.  
17 Indonesia's closing statement at the second meeting of the Panel, para. 16.  
18 Indonesia's first written submission, paras. 63 -74. 
19 European  Union's opening statement, paras.  6-9. 
20 European  Union's response to Panel question No. 20(b), para. 32.  
21 Specifically,  Article  22 of MEMR Regulation 5 /2017 (Exhibit IDN -33) expressly revoked MEMR 
Regulation 01/2014 and implementing regulation upon its entry into force on 11 January 2017.  
22 European  Union's answers to Panel question No. 72, para. 21.  WT/DS592/R/Add.1  
 
- 37 - 
 
  III. ARTICLE  XI:1 OF THE GATT  1994 IS NOT APPLICABLE TO THE DOMESTIC 
PROCESSING REQUIREMENT  
 
18. The European  Union failed to establish that  Article  XI:1 of the GATT  1994 is even applicable 
to the domestic processing requirement, let alone that it is inconsistent with that provision.23  
Article  XI:1 applies strictly to border  measures  that have a limiting effect on importation or 
exportation. It does not apply to internal measures .24 The Appellate Body has clarified that  "border 
measures apply 'by virtue of the event of importation' while, by contrast, internal measures apply 
'because o f an internal factor'".25 Applying this framework, the domestic processing requirement is 
not a border measure because it does not apply by virtue of  the exportation of nickel ore. Instead, 
the domestic processing requirement is an internal measure triggered by an internal factor, namely, 
the production, sale and use of nickel ore.26  
19. The European  Union's attempt to establish that the scope of  Articl e XI:1 is not limited to 
border measures is unavailing.27 First, the European  Union argues that  Article  XI:1 "is couched in 
general terms, encompassing 'prohibitions' as well as 'restrictions'", such that "the provision is 
therefore a broad one and not l imited to only border measures."28 However,  the fact that  Article  XI:1 
refers to "prohibitions" and "restrictions" indicates the limiting effect of the measures in question, 
but says nothing  about whether such "prohibitions" and "restrictions" can be mad e effective through 
border measures, internal measures, or both, in order to fall within the scope of  Article  XI:1.29  
20. Second , the European  Union relies on the phrase "sale for export" in  Article  XI:1, and argues 
that "the very wording of  Article  XI:1 … includes a business activity which would have to be 
considered 'internal' … [and] this in and of itself demonstrates that that provision is not limited to 
'border measures'".30  Yet, a "sale for export" cannot be characterized as an internal measure mer ely 
because it takes place behind the border.31 Instead, the relevant question in determining whether a 
measure applicable to a sale for export is a border or internal measure is what is the triggering event 
for its application. If a measure applies only to sales for export, then by definition it applies by virtue, 
or because of, those sales being destined for the export market. Accordingly, it is a border measure. 
Conversely, if a measure applies to sales for export as well as sales for the domestic marke t, then 
by definition it cannot be characterized as a border measure because it does not apply by virtue, or 
because of, sales being destined for export. The reference to "sale for export" in  Article  XI:1 thus 
simply confirms that this provision covers on ly border measures, in this instance measures that 
apply by virtue, or because of, a sale for export.32   
21. Third, the European  Union wrongly relies on the exclusion of "taxes or other charges" from 
the scope of  Article  XI:1 in support of its contention th at "the prohibition is not limited to 'border 
measures'".33 The reference to "duties, taxes or other charges" in  Article  XI:1 excludes from the 
scope of that provision measures falling within the scope of  Article  II of the GATT  1994, namely: (i) 
ordinar y customs duties under  Article  II:1(b), first sentence; (ii) other duties or charges under  
Article  II:1(b), second sentence; and (iii) border tax adjustments under  Article  II:2(a). The text of 
Articles II:1(b) and II:2 makes clear that such measures are  undoubtedly border measures, i.e. 
measures imposed "on importation". Thus, the reference to "duties, taxes or other charges" in  
 
23 Indonesia's second written submission, paras. 29 -45; Indonesia's opening statement at the second 
meeting of the Panel, paras. 15 -23. 
24 Indonesia's second written submission, paras. 2 9-39; Indonesia's comments on the European  Union's 
response to Panel question No. 78, paras. 12 -22. 
25 Indonesia's second written submission, para. 37 (quoting Appellate Body Report, China - Auto Parts , 
paras. 158 and 163).  
26 Indonesia's opening statement at the second meeting of the Panel, para. 19.  
27 European  Union's response to Panel question No. 78, para. 36.  
28 European  Union's response to Panel question No. 78, para. 38.  
29 Indonesia's comments on the European  Union's r esponse to Panel question No. 78, para. 13.  
30 European  Union's response to Panel questions No.78, para. 39.  
31 Indeed, the locus of application of a measure applicable to exports is particularly unhelpful in 
determining whether it constitutes a border or internal measure, because both border and internal measures 
apply "before" products have left the exporting Member.  If the locus of a measure's application were 
dispositive of its characterization as a border or internal measure, then all measures applied to products 
destined for exportation would be characterized as "internal measures", even if they did not apply due to an 
internal factor but, instead, because of, or by virtue of, exportation  (See Indonesia's comments on the 
European  Union's response to Pa nel question No. 78, para. 15).  
32 Indonesia's comments on the European  Union's response to Panel question No. 78, paras. 14 -16. 
33 European  Union's response to Panel question No. 78, para. 40.  WT/DS592/R/Add.1  
 
- 38 - 
 
  Article  XI:1 supports  Indonesia's interpretation that this provision disciplines only border  measures 
limiting importation or exportation.34    
22. This is the only reading  that is consistent with the fact that  Article  XI:1 proscribes only 
"prohibitions" or "restrictions" that are "made effective through quotas, import or export licences or 
other m easures". The illustrative reference to "quotas, import or export licences" in  Article  XI:1 
imparts meaning to the "other measures" through which "prohibitions" or "restrictions" can be "made 
effective" for the purposes of  Article  XI:1. It is beyond disp ute that "quotas, import or export 
licences" are all border measures, i.e., they belong to a class of measures that are triggered by, or 
apply by virtue of, importation or exportation, rather than an internal factor . Accordingly, properly 
construed,  Artic le XI:1 applies strictly to border  measures  that have a direct limiting effect on 
importation or exportation.35   
23. Finally, there is no basis whatsoever for the European  Union's apparent contention that 
internal measures affecting importation do not  fall within the scope of  Article  XI:1, while internal 
measures affecting exportation do.36 Nothing in the text of  Arti cle XI:1 supports the notion that it 
has an asymmetrical  scope of application in relation to, on the one hand, internal measures affecting 
importation and, on the other hand, internal measures affecting exportation. The existence of  Ad  
Article  III does no t change that conclusion, but rather supports it. If the framers of the GATT  1994 
intended to create disciplines governing internal measures that impacted competitive opportunities 
for exports, they would have done so expressly.37 The absence of disciplin es does not give the 
European  Union an excuse to shoehorn measures that are not covered by  Article  XI:1 into it.38  
IV. THE EUROPEAN  UNION FAILED TO ESTABLISH THAT THE DOMESTIC PROCESSING 
REQUIREMENT IS INCONSISTENT WITH  ARTICLE  XI:1 OF THE GATT  1994  
 
24. In the alternative , even if  Article  XI:1 of the GATT  1994 is applicable to the domestic 
processing requirement ( quod non ), the European  Union failed to establish a violation of that 
provision. As clarified by the Appellate Body,  "not every condition or bu rden placed on importation 
or exportation will be inconsistent with  Article  XI:1, but only those that … limit the importation or 
exportation of products".39 The European  Union thus bears the burden of demonstrating that the 
domestic processing requiremen t has a limiting effect on the exportation of nickel ore, such that it 
constitutes a "restriction" within the meaning of  Article  XI:1. The European  Union cannot discharge 
this burden because the export prohibition under MEMR Regulation 11/2019 totally pro hibits  the 
exportation of nickel ore as of 1 January 2020. Thus, there is simply no circumstance in which the 
domestic processing requirement under MEMR Regulation 25/2018 can have any limiting effect on 
nickel ore exports.40  
25. Faced with this fact, the Eu ropean  Union argues that the two measures should be assessed 
separately, and speculates that the domestic processing requirement would restrict exports if 
Indonesia lifted the export prohibition.41 Unfortunately for the European  Union, the evidence on the  
record entirely debunks its speculation. Uncontested, real -life export data on the panel record 
conclusively  shows that nickel ore exports actually increased substantially  during the period in which 
 
34 Indonesia's comments on the European  Union's response to Pa nel question No. 78, para. 17.  
35 Indonesia's comments on the European  Union's response to Panel question No. 78, para. 18.  
36 Indonesia's response to Panel question No. 79, paras. 270 -272; Indonesia's closing statement at the 
second meeting of the Panel, para. 3.  
37 Indonesia's response to Panel question No. 78, paras. 21 -22. 
38 Indonesia's response to Panel question No. 79, paras. 270 -272; Indonesia's comments on the 
European  Union's response to Panel question No. 79, para. 24.  
39 Indonesia's second written submission, para. 46 (quoting Appellate Body Report, Argentina – Import 
Measures , para. 5.217 ). 
40 Indonesia's second written submission, paras. 49 -52. 
41 European  Union’s opening statement at the first meeting of the Panel, para. 18. Indonesia agrees that 
the domestic processing requirement and the export prohibition must be assessed separately. In particular, the 
European  Union  must demonstrate  that the domestic processing requirement  has a limiting effect on 
exportation  that is separate and apart from the limiting effect of the export prohibition.  This is consistent with 
the Appellate Body's guidance to the effect that there must be in every case a genuine relationship between 
the measure at issue and its alleged effects  (Indonesia's second written submission, para. 49 (citing Appellate 
Body Reports, Dominican Republic - Import and Sale of Cigarettes , para. 96; US - Clove Cigarettes , footnote 
372 to para. 179; Thailand - Cigarettes (Philippines) , para. 134 ). WT/DS592/R/Add.1  
 
- 39 - 
 
  the domestic processing requirement was in place and an export prohibition was not.42 By contrast, 
there is no evidentiary foundation for any proposition that, during those periods, exports would have 
been more "but for" the domestic processing requirement.43  
26. Faced with the evidence that exports increased wh en the domestic processing requirement 
was in effect  and an export prohibition was not, the European  Union then speculates that "[i]t cannot 
be excluded that these exports are due to the fact that Indonesia may have fail[ed] to properly 
implement its own laws".44 Contrary to the European  Union's speculation, exports occurred during 
the relevant period pursuant to specific legal provisions authorizing such exports.45 These specific 
legal provisions are lex specialis  to, and apply regardless of, the ge neral requirement to conduct 
minimum processing activities in Indonesia.46 The uncontested export data on the Panel record 
corroborates  this.47 It follows that the domestic processing requirement cannot  have a limiting effect 
on the exportation of nickel  ore. Instead, as the evidence on the record confirms, any limiting effect 
on the exportation of nickel ore is solely attributable to the export prohibition.    
27. In light of the above, even if  Article  XI:1 of the GATT  1994 is applicable to the domestic 
processing requirement ( quod non ), the European  Union failed to make a prima facie case that this 
measure is inconsistent with  Article  XI:1.  
V. THE MEASURES AT ISSUE ARE JUSTIFIED UNDER  ARTICLE  XI:2(A) OF THE 
GATT  1994   
 
28. Even if the Panel were to find tha t the European  Union has discharged of its burden to establish 
a violation of  Article  XI:1, Indonesia has demonstrated that the measures at issue are justified 
under  Article  XI:2(a) of the GATT  1994.  
29. At the outset, contrary to what the European  Union su ggests,   Article  XI:2(a) of the 
GATT  1994 does not contemplate a threshold inquiry into whether the export restrictions or 
prohibitions at issue are "capable of" preventing or relieving a critical shortage in essential products.  
Article  XI:2(a) only appli es to a limited universe of measures, namely, "export prohibitions or 
restrictions" within the meaning of  Article  XI:1 of the GATT  1994.  Because  Article  XI:2(a) is co -
extensive with  Article  XI:1, only measures that have a "limiting effect" on exports a re potentially 
covered by  Article  XI:2(a). By definition, measures that have a "limiting effect" on exportation are 
in principle at least "capable of" preventing or relieving a crucial deficiency in quantities. It is thus 
entirely unnecessary for the Pane l to separately examine, at the threshold, whether the challenged 
measures are "capable of" preventing or relieving critical shortages of the essential product in 
question.48  
30. As explained  below, Indonesia has made a prima facie case in relation to the th ree analytical 
elements of an affirmative defence under  Article  XI:2(a), namely, that: (i) the measures at issue 
are "temporarily applied"; (ii) a critical shortage of nickel ore is present or imminent; and (iii) nickel 
ore is an "essential" product for I ndonesia.  
A. The Measures at Issue are Temporarily Applied  
 
31. Indonesia  has demonstrated that the measures at issue are "temporarily applied" within the 
meaning of  Article  XI:2(a) of the GATT  1994. As clarified by the Appellate Body, the fact that a 
measure does not establish a fixed time -limit in advance is not dispositive.49 In this respect,  
Article  XI:2(a) covers measures "applied for a limited duration, adopted in order to bridge a passing 
 
42 Indonesia's response to panel question No. 13, paras. 45 -57; Indonesia's second written submission, 
paras. 55 -58; and  MEMR, Excel of "Production and Sales of Nickel Ore from 2010 -2020", Exhibit IDN -24. 
43 Indonesia's response to Panel question No. 73, paras. 230 -237. 
44 European  Union's response to Panel question No. 77, para. 33.  
45 Indonesia's comments on the European  Union's response to Panel question No. 77, paras. 6 -11. 
46 See e.g. Indonesia's response to Panel question No. 73, paras. 230 -237. 
47 Indonesia's opening statement at the second meeting of the Panel, paras. 29 -31; Indonesia's 
response to Panel question No.  73, paras. 230 -237; Indonesia's response to Panel question No. 74, 
paras.  238-247. 
48 Indonesia's response to Panel question No. 87, para. 303; Indonesia's comments on the 
European  Union's response to Panel question No. 87, para. 63.  
49 Appellate Body Report, China - Raw Materials , para. 331.  WT/DS592/R/Add.1  
 
- 40 - 
 
  need, irrespective of whether or not the temporal scope of the measure is fixed in advance."50 Record 
evidence demonstrates that the measures at issue are applied for a limited time, in order to bridge 
a passing nickel supply shortfall for the domestic processing industry.51  
32. First, the design, structure and architecture of MEMR Regulation 11/2019 expressly links the 
export prohibiti on on nickel ore to the passing supply needs of nickel processing and refining facilities 
in Indonesia. In this regard, the first preambular recital of MEMR Regulation 11/2019 provides that 
it aims "to ensure the continuity of supply of nickel processing a nd refining facilities … and several 
domestic nickel processing and refining facilities have been built."52 It therefore establishes, on its 
face, that the objective of the export prohibition on nickel ore is to bridge a passing need for nickel 
ore stemmi ng from an increase in domestic processing capacity.  
33.  Second, this is further corroborated  by a contemporaneous press release in which MEMR's 
Director General explains that the main rationale  for MEMR Regulation 11/2019 was "limited proven 
reserves … which  can only supply nickel ore to smelters for 7.3 years".53 Thus, MEMR decided to 
"take some anticipatory steps so that the reserves lifespan can fulfil the economic life of smelters."54 
He also expresses hope that technological developments will allow low -grade nickel processing as 
inputs for batteries.55 This contemporaneous evidence undoubtedly demonstrates that the export 
restrictions on nickel ore are temporary, and have been adopted exclusively to bridge the passing 
supply needs of domestic smelters given the current level of proven reserves and the state of the 
technology.  
34. Third, Indonesia  has a consistent record of applying export moratoria on nickel ore exclusively 
on a temporary basis.56 In this regard, the exportation of nickel ore was prohibited temporarily, first, 
for a period of 15 days between 6 May 2012 and 21 May 2012, and second, for a period of about 
three years between 11 January 2014 and 1 February 2017. Similarly,  Article  46 of MEMR Regulatio n 
25/2018 temporarily permitted the exportation of unprocessed or unrefined nickel ore despite any 
minimum processing requirement imposed on domestic producers, until those exports were entirely 
prohibited by MEMR Regulation 11/2019 and MOT Regulation 96/2 019.57      
35. Fourth and finally, the limited time -period for which the challenged measures have been in 
place does not support the inference that they are somehow "permanent", as the European  Union 
suggests.58   
36. In sum, the totality of the evidence before  this Panel conclusively establishes that the 
measures at issue are applied for a limited time, in order to bridge a passing need for nickel supplies 
stemming from increased domestic processing capacity.   
B. A Critical Shortage of Nickel Ore is Imminent an d Grave  
 
37. Turning to the critical shortage element under  Article  XI:2(a), Indonesia has demonstrated 
that its nickel reserves are presently insufficient  to meet the total production capacity of Indonesia's  
existing smelters beyond 2026. Indonesia has demo nstrated further that the grave imbalance 
between available nickel quantities and the needs of the domestic industry is going to be exacerbated 
in the next 4 to 6 years.59   
38. To put this in concrete terms, Indonesia's nickel ore consumption is projected to  increase 
exponentially between 2020 and  2026. This suggests that Indonesia's Competent Persons -verified 
nickel ore reserves of about 1 billion wmt will only be sufficient to meet the needs of Indonesia's 
 
50 Appellate Body Report, China - Raw Materials , para. 331.  
51 Indonesia's second written submission, paras. 71 -84. 
52 MEMR Regulation 11/2019, Exhibit IDN -29, p. 2. Similarly, the first recital of the preamble of MOT 
Regulation 96/2019 expressly links that measure with supporting "the effectiveness of the implementation of 
the export of mining commodities as processing and refining products." MOT Regulation 96/2019, Exhibit IDN -
30, p. 2.    
53 Press  Release from the MEMR, 2 September 2019, Exhibit IDN -92, p. 2.  
54 Press Release from the MEMR, 2 September 2019, Exhibit IDN -92, p. 2.  
55 Press Release from the MEMR, 2 September 2019, Exhibit IDN -92, p. 2.  
56 Indonesia's second written submission, para. 78.  
57 Indonesia's first written submission, para. 102.  
58 Indonesia's second written submission, paras. 80 -82. 
59 Indonesia's opening statement at the second meeting of the Panel, paras. 48 -49. WT/DS592/R/Add.1  
 
- 41 - 
 
  domestic industry until 2026.60 If one includes non -Competent Persons verified reserves into 
available supply inventory, quantities of nickel ore (of 2 billion wmt) will only be sufficient to meet 
the needs of the domestic industry until 2030.61 In other words, based on Indonesia's cur rent 
estimate of nickel ore quantities presently available, Indonesia's domestic nickel ore market will 
move into a structural deficit in 4 to 8 years' time; a period that the European  Union itself appears 
to recognize as inadequate to justify the large -scale investment in the construction of new processing 
plants.62        
39. The European  Union's rebuttal of Indonesia's prima facie showing of a "critical shortage" within 
the meaning of  Article  XI:2(a) hinges on its assertion that the Maryono report underestimates 
Indonesia's nickel reserves. That assertion is simply not credible.63 Among other things, it is belied 
by the fact that the total reserves that the Maryono report estimates is actually higher than the 
USGS estimate of 21 million tons. In addition, the methodology that the European  Union would 
conveniently have Indonesia apply to estimate its nickel reserves must be rejected  if only because 
it entails a substantial deviation from international standards, including the reserve reporting 
standards that EU Member States themselves are required to apply in calculating mineral reserves.64   
40. Contrary to the European  Union's assert ions, the hard data on the panel record demonstrates 
a grave imbalance between Indonesia's existing nickel reserves and domestic demand, such that 
there is undoubtedly a "crucial deficiency in quantities" giving rise to a "passing need" that export 
restric tions seek to "bridge".65 
C. Nickel Ore is Essential for Indonesia  
 
41. Finally, Indonesia has established that nickel is a product that is "essential" for Indonesia 
within the meaning of  Article  XI:2(a) of the GATT  1994.66 In Sulawesi and Maluku, nickel mi ning 
alone accounts for between 23 and 41% of the regional GDP and represents close to 20% of all 
paying jobs.67 Nationally, mining is a priority industry in its own right, accounting for 6.4% of the 
GDP.68 Nickel is one of the most important mining prod ucts of Indonesia, with exports of nickel ore 
and nickel -based products accounting for wholly 62% of Indonesia's exports of mining products.69 
Globally, Indonesia is the largest nickel supplier worldwide, accounting for one -third of global 
production.70  
42. In addition, nickel ore is a critical input for key sectors of the Indonesian economy, enabling 
steel-making production, which accounts for close to 4% of the industrial GDP, 71and supporting the 
construction, automotive and auto -parts sectors downstream . These sectors combined account for 
20% of the Indonesian industrial GDP.72 Moreover, nickel is a critical input into Indonesia's emerging 
EV battery production industry, and is indispensable for Indonesia's transition away from fossil fuels 
into renewab le energy, carbon emissions reduction, and economic development.73  
43. The European  Union does not appear to challenge the relative importance of nickel as an input 
into a critical industry in Indonesia. It argues, instead, that the relative importance of ni ckel as an 
input is legally irrelevant , because only foodstuffs and other products "indispensable to meet the 
 
60 Indonesia’s second written submission, para. 99.  
61 Indonesia’s second written submission, para. 98.  
62 See e.g. European  Union's second written submission, paras. 124 -127. 
63 Indonesia's response to Panel question No. 102, para. 339.  
64 Indonesia's opening statement at the second meeting of the Panel, paras. 52 -55. 
65 Appellate Body Report, China – Raw Materials , para. 323.  
66 Indonesia's opening statement at the second meeting of the Panel, paras. 41 -47. 
67 MEMR, Impact of Smelter Development in the Special Economic zone in Sulawesi (2015),  Exhibit IDN -
61. 
68 Bank Indonesia, "Gross Domestic Product by Industrial Origin at Current Prices", Indonesian Economic 
and Financial Statistics (2021), 226 -227, Exhibit IDN -50. 
69 Indonesia's second writt en submission, para. 110. 
70 USGS, Excel of "Nickel Reserves" , Exhibit IDN -20. 
71 Bank Indonesia, "Gross Domestic Product by Industrial Origin at Current Prices", Indonesian Economic 
and Financial Statistics (2021), 226 -227, Exhibit IDN -50. 
72 Bank Indonesia, "Gross Domestic P roduct by Industrial Origin at Current Prices", Indonesian Economic 
and Financial Statistics (2021), 226 -227, Exhibit IDN -50. 
73 Reuters, "Europe's EV battery strategy threatened by supply chain gaps, Eramet says" (29 October 
2021), available at https://ww w.reuters.com/technology/europes -ev-battery -strategy -threatened -by-supply -
chain -gaps-eramet -says-2021-10-29/ (last accessed 19 March 2022), Exhibit IDN -79. WT/DS592/R/Add.1  
 
- 42 - 
 
  essential needs of the population" can be "essential" within the meaning of  Article  XI:2(a). 74The 
distinction the EU seeks to draw between the "vital" and the "economic" needs of the population is 
totally artificial. Products that serve as inputs into particularly important economic sectors are 
obviously necessary or indispensable to meet the "vital needs" of the population, because they create 
the direct and indirect jobs that provide a livelihood to millions of individuals and their families.75  
44. If the panel in China - Raw Materials  was prepared to find that refractory bauxite, a mere 
intermediary product in the production of iron and steel, was "essential" to China under  
Article  XI:2(a)76, this Panel should have no difficulty in concluding that nickel is "essential" to 
Indonesia.  
45. For all of the foregoing reasons, the Panel should therefore conclude that the measures at 
issue are temporarily applied to prevent or relieve a critical shortage of nickel, a product that is 
essential for Indonesia within the meaning of  Article  XI:2(a). Indonesia has demonstrated that the 
measures at issue are fully justified under  Article  XI:2(a) of the GATT  1994.   
VI. The Measures At Issue Are Justified Under  Article  Xx(D) of the GATT 1994  
 
46. In the unlikely event the Panel were to conclude that the measures at issue are not justified 
under  Article  XI:2(a) of the GATT  1994, Indonesia has demonstrated that they are, nevertheless, 
justified under  Article  XX(d) of the GATT  1994 as measures "nece ssary to secure compliance with" 
WTO-consistent laws or regulations. More specifically, consistent with the legal standard under  
Article  XX(d), Indonesia has demonstrated that: (i) the "laws or regulations" that the challenged 
measure seek to secure compl iance with are consistent with the GATT  1994; (ii) the measures at 
issue are "necessary" to secure such compliance; and, (iii) the challenged measures are applied in 
a manner consistent with the chapeau of  Article  XX.77  
A. Indonesia's Laws or Regulation s are Consistent with the GATT  1994  
 
47. The relevant  laws and regulations that the challenged measures seek to secure compliance 
with are expressed in Articles 96(c) and (d) of Law No. 4/2009, and  Article  57 of Law No. 32/2009.78 
These measures essentially  provide that mining permit holders must implement mining environment 
management and monitoring, including reclamation and post mining activities, as well as mineral 
conservation efforts. These sustainable mining and mineral resource management requirement s are 
part of Indonesia's comprehensive policy framework on mining activities. The effectiveness of this 
comprehensive policy depends on the interplay among its various elements, including the challenged 
measures. This factor must therefore be taken into a ccount in an assessment under  Article  XX(d) 
of the GATT  1994, in line with the Appellate Body's recognition that "complex … environmental 
problems may be tackled only with a comprehensive policy comprising a multiplicity of interacting 
measures."79 
48. The E uropean  Union does not dispute the WTO -consistency of the laws identified by Indonesia 
for the purposes of its affirmative defence under  Article  XX(d). Therefore, they must be presumed 
as a matter of law to be WTO -consistent.80  
 
74 European  Union's response to Panel question No. 29, para. 35.  
75 Indonesia's opening statement at  the second meeting of the Panel, para. 44.  
76 Panel Report, China – Raw Materials , paras. 7.277 and 7.340.  
77 Indonesia's first written submission, para. 147 (citing Appellate Body Report, Thailand – Cigarettes 
(Philippines) , para. 177).  
78 Indonesia's se cond written submission, para. 146; Indonesia's opening statement at the second 
meeting of the Panel, para. 66; Indonesia's response to Panel question No. 105, para. 352.  
79 Appellate Body Report, Brazil – Retreaded Tyres , para. 151. See also Indonesia's r esponse to Panel 
question No. 119, paras. 408 -410; Indonesia's comments on the European  Union's response to Panel question 
No. 119, paras. 108 -110. 
80 Panel Reports, India – Solar Cells , para. 7.321 (referring to Panel Reports, US – Gambling , para. 
6.549; US – Customs Bond Directive , para. 7.301; Colombia – Ports of Entry , para. 7.531 (citing Appellate 
Body Report,  US – Carbon Steel , para. 157)).  WT/DS592/R/Add.1  
 
- 43 - 
 
  B. The Challenged Measure s are Designed to Secure Compliance with Indonesia's 
Laws and Regulations  
 
49. At the threshold,  Article  XX(d) requires the Panel to ascertain whether the measures at issue 
are "designed to" secure compliance with the underlying laws or regulations. This is a relatively 
"undemanding" inquiry where the Panel must simply check whether the challenged measures are 
"not incapable" of securing compliance with the relevant laws or regulations.81 The measures at 
issue in this dispute are manifes tly capable  of securing compliance with Indonesia's sustainable 
mining and mineral resource management requirements.  
50. First, the export prohibition removes from the market the opportunity to sell to purchasers 
that are outside of Indonesia's jurisdiction, and it also reduces the overall amount of nickel extracted. 
Any measure that reduces the total production and extraction of nickel ore cannot logically be 
considered as incapable of securing compliance with laws and regulations mandating the protection 
of the environment and conservation of exhaustible natural resources.82  
51. Second , the domestic processing requirement, in turn, promotes vertical integration in the 
supply chain, induces long -term changes in the behaviour of market players, and enables regula tory 
conformity to be assessed both at the supply and demand ends of the supply chain. This discourages 
spot sales of nickel ore, curbs predatory mining practices, and ensures that all mining activities are 
properly regulated both on the supply and demand side. Any measure operating in this way is 
evidently capable of securing compliance with laws and regulations mandating the protection of the 
environment and conservation of exhaustible natural resources. 83 
52. The Panel should thus have little difficulty in  concluding that the measures at issue are 
"designed" to secure compliance with Indonesia's sustainable mining and mineral resource 
management requirements.   
C.  The Challenged Measures are Necessary to Secure Compliance with 
Indonesia's Laws and Regulati ons 
 
53. Following  the well -established analytical framework under  Article  XX(d) of the GATT  1994, 
Indonesia has demonstrated that the challenged measures are "necessary" to secure compliance 
with its sustainable mining and mineral resource management requirements.  
54. First, Indonesia demonstrated that the relevant laws further interests or values of the highest 
importance.84 Second , Indonesia acknowledged that while the export prohibition on nickel ore is 
trade -restrictive, the domestic processing requirement does not entai l any limiting effect on 
exportation, or is at most potentially trade -restrictive.85 Third, Indonesia established that both the 
export prohibition and domestic processing requirement are apt to make a material contribution to 
securing compliance with Indo nesia's sustainable mining and mineral resource management 
requirements.86 Fourth , Indonesia established that the alternative measure put forward by the 
European  Union is not reasonably available, and would not make an equivalent contribution to 
Indonesia 's enforcement objective at Indonesia's chosen level of protection.87  
55. The element of contribution within the necessity test under  Article  XX(d) appears to be the 
sole issue disputed between the parties.  
 
81 Indonesia's opening statement at the second meeting of the Panel (quoting Appellate Body Report, 
India - Solar Cells, para. 5.58).  
82 Indonesia' second written submission, para. 128; Indonesia's opening statement at the second 
meeting of the Panel, paras. 68 -71. 
83 Indonesia's first written submission, para. 178; Indonesia's second written submission, paras. 129 -
130. 
84 Indonesia's first written submission, paras. 183 -187. 
85 Indonesia's first written submission, paras. 188 -190. 
86 Indonesia's first written submission, paras. 191 -217; Indonesia's second written submission, paras. 
158-182; Indonesia's opening statement at the second meeting of the Panel, paras. 72 -87. 
87 Indonesia's first written submission, paras. 218 -220; Indonesia 's comments on the European  Union's 
response to Panel question No. 111, paras. 87 -95 WT/DS592/R/Add.1  
 
- 44 - 
 
  1. The Export Prohibition is Apt to Make a Material Contribution to Indonesia's 
Enforcement Objective  
 
56.  The crux of the European  Union's contention is that the measures at issue are not apt to 
make a material contribution to the enforcement of Indonesia's sustainable mining and mineral 
resource man agement requirements because Indonesia does not maintain any restrictions on the 
domestic production or consumption of nickel ore. This contention rests on an unsubstantiated 
assertion that all nickel mining — whether for export or domestic consumption — presents the same 
compliance risk profile, such that any improvement in environmental or conservation efforts after 
the adoption of the challenged measures would stem from a reduction in production, rather than 
improvements in enforcing regulatory conformit y.88 The evidence on the panel record debunks this 
assertion.    
57. Indeed, the panel record is replete with evidence demonstrating that export -oriented nickel 
mining presented a higher risk profile than mining for domestic consumption, and that the challeng ed 
measures have resulted in higher regulatory conformity in Indonesia. Such evidence consists of inter 
alia:  
• Exhibits IDN -59 through IDN -70, which demonstrate that predatory export -oriented mining 
practices have resulted in substantial regulatory non -conformity and ensuing environmental 
damage in nickel producing areas such as Sulawesi and Maluku.  
 
• Exhibit IDN -106, which demonstrates that in 2020 Indonesia was the second largest supplier 
of nickel ore to China while an export prohibition was in place.  
 
• Exhibit IDN -52, which demonstrates that domestic smelters are subject to criminal sanctions 
and fines pursuant to  Article  161 of Law No. 4/2009, when foreign purchasers are obviously 
not subject to any sanctions as they fall outside of Indonesia's enforce ment jurisdiction.  
 
• Exhibits IDN -15 and IDN -105, which demonstrate that subsequent to the challenged 
measures there was a reduction of nickel mining permit holders from 717 to 220.  
 
• Exhibits IDN -15 and IDN -109, where Professor Rudy Sayoga explains, based on empirical 
data from MEMR, that the rate of deforestation in Southeast Sulawesi decreased subsequent 
to the introduction of the measures at issue. Professor Sayoga explains that, f or an 
equivalent increase in nickel ore production (11M wmt), the rate of deforestation after the 
imposition of the challenged measures was about one third of what it was prior to the 
enactment of those measures. Professor Sayoga also demonstrates that lan d reclamation 
activities increased more than 2.5 times after the introduction of the measures, which is 
direct evidence of increased compliance with  Article  96(c) of Law No. 4/2009.  
 
• Exhibits IDN -110 to IDN -112, and respective annexes, which demonstrate increased criminal 
and administrative enforcement subsequent to the introduction of the measures at issue.  
 
• Exhibit IDN -113, which demonstrates why domestic smelters subject to Indonesia's 
regulatory powers make every effort to conform with relevant regul atory requirements and 
act to combat illegal, export -oriented mining activities.89 
 
58. The European  Union's attempt to discredit this evidence on the record is unavailing and must 
be rejected.90 The European  Union has itself argued that data on the number o f enforcement 
proceedings initiated "before the measures and subsequently" is " an obvious means of 
substantiating " Indonesia's claims regarding the contribution of the challenged measures to their 
enforcement objective.91 Indonesia has placed such data on  the record. The European  Union cannot 
simply walk away from the standard that the European  Union itself articulated in these 
proceedings.92  
 
88 European  Union's second written submission, para. 268.  
89 Indonesia's response to panel question No. 64, para. 199.  
90 Indonesia's comments on the European  Union's response to panel question No. 128, paras. 118 -137. 
91 European  Union's second written submission, para. 272 (emphasis added).  
92 Indonesia's comment s on the European  Union's response to Panel question No. 115, para. 101.  WT/DS592/R/Add.1  
 
- 45 - 
 
  59. The Panel  must also reject the European  Union's erroneous assertion that  Indonesia is 
required to show, as part of its affirmative defence under  Article  XX(d), that the "changes in 
enforcement activity" demonstrated by the evidence on the record "are attributable exclusively  to 
the measures at issue."93 There is no such requirement under  Article  XX(d), particularly where the 
challenged measures are a component of a comprehensive framework with multiple elements 
interacting synergistically to achieve a policy obje ctive. Indonesia need only show a "genuine 
relationship of ends and means between the objective pursued" and the challenged measures.94  
60. Based on an objective assessment of the totality of evidence on the record, the Panel should 
have little difficulty in  finding that the export prohibition at issue is apt to make a material 
contribution to securing compliance with Indonesia's sustainable mining and mineral resource 
management requirements.   
2. The Domestic Processing Requirement is Apt to Make a Material  Contribution to 
Indonesia's Enforcement Objective  
 
61. The domestic  processing requirement is also apt to make a material contribution to securing 
compliance with Indonesia's sustainable mining and mineral resource management requirements. 
This is because it promotes vertical integration in the supply chain, induces long -term changes in 
the behaviour of market players, and enables regulatory conformity to be assessed at both the 
supply and demand ends of the supply chain.  
62. Since the adoption of the measures at  issue, IUP holders are required to submit RKABs 
pursuant to which they receive authorization to mine specific quantities of nickel ore per year. 
Domestic smelters are required  by law to purchase, utilize, process, refine or sell only nickel ore 
from confo rming IUP holders, and only to the extent of their maximum production capacity. For this 
reason, domestic smelters are increasingly undertaking long -term supply contracts with mining 
companies or vertically integrating with them.95 Indonesian regulators c an now cross -check 
production volumes with consumption data in order to verify regulatory conformity. Any active IUP 
holders which are not selling the production volumes approved in their RKABs to domestic smelters 
become the object of increased regulatory  scrutiny, because this is a strong indication of non -
conforming mining activities, illegal exports, or both. Conversely, any domestic smelters that 
purchase inputs that do not correspond to RKAB volumes of their suppliers are similarly targeted for 
crimin al and administrative enforcement.96 
63.  Such an enhanced  enforcement mechanism is simply not available in respect of sales between 
domestic mining companies and foreign purchasers, as Indonesia has no access to consumption data 
of foreign smelters. Therefor e, Indonesian regulators simply cannot cross -check production volumes 
with consumption data of foreign purchasers in order to verify regulatory conformity.97  
64. The evidence on the record  confirms that proper regulation of both the supply and demand 
ends of  the supply chain has resulted in increased enforcement. Indeed, it is not by coincidence that 
the number of nickel IUP holders has decreased sharply subsequent to the adoption of the measures 
at issue. Deprived of the opportunity to sell their non -conform ing nickel ore to foreign suppliers that 
are outside of the purview of Indonesia's authorities, rogue mining companies have decided to simply 
stop production and have exited the market.98  
 
93 European  Union's response to Panel question No. 115, para. 170.  
94 Appellate Body Report, Brazil – Retreaded Tyres , para. 145. See Indonesia's comments on the 
European  Union's resp onse to Panel question No. 115, paras. 96 -103. 
95 See Sample of Nickel Ore Sales Contract 2, Exhibit IDN -58; Sample of Nickel Ore Sales Contract 3, 
Exhibit IDN -71. In addition to these contracts that were already on the record, Indonesia is also providing the 
underlying contract requested by the European  Union in its second written submission (See European  Union’s 
second written submission, pa ra. 274, and Sample of Nickel Ore Sales Contract 4, Exhibit IDN -114). Indonesia 
is also providing two further contra cts demonstrating how the domestic processing requirement has fostered 
vertical integration and long -terms supply arrangements in the nickel supply chain (S ee Sample of Nickel Ore 
Sales Contract 5, Exhibit IDN -115, and Sample of Nickel Ore Sales Contract 6 , Exhibit IDN -116). 
96 Indonesia's opening statement at the second meeting of the Panel, para. 84. See also Indonesia's 
response to Panel question No. 70, paras. 220 -228; Indonesia's comments on the European  Union's response 
to Panel question No. 108, para s. 81-86. 
97 Indonesia's comments on the European  Union's response to Panel question No. 108, para. 85.  
98 Indonesia's opening statement at the second meeting of the Panel, paras. 84 -87. WT/DS592/R/Add.1  
 
- 46 - 
 
  65. In light of the above, the domestic processing requirement is manifestly apt to make a material 
contribution to Indonesia's sustainable mining and mineral resource management requirements.  
3. The Alternative Measure Put Forward by the European  Union is Not Reasonably 
Available and Does not Make an Equi valent Contribution to Indonesia's Enforcement 
Objective  
 
66. It was incumbent  on the European  Union to propose reasonably available alternative measures 
that are less trade restrictive than the measures at issue, while, at the same time, "preserving for 
[Indonesia] its right to achieve its desired level of protection with respect t o the objective pursued."99 
Yet, the European  Union has simply attempted to differentiate its purported alternative measure 
from Indonesia's existing "clear and clean" certification process, but has failed to do so.100  
67. In any event, to the extent that t he European  Union's alternative measure can be 
distinguished from Indonesia's clear and clean certification process, it is only on the basis that, under 
the European  Union's proposed alternative, border officials would need to determine for each and 
every  consignment of nickel ore whether such ore has been mined  in compliance with Indonesia's 
sustainable mining and mineral resource management requirements.101 This actually reveals, 
however, that the European  Union's proposed alternative is  not reasonably a vailable to Indonesia, 
and would not make an equivalent contribution to the enforcement objectives of the challenged 
measures.102  
68. Indonesian border officials simply cannot determine by examining a consignment of nickel ore 
whether such ore has been mined  in conformity with sustainable mining and mineral resource 
management requirements. Sustainably mined nickel and unsustainably mined nickel look exactly 
the same. The European  Union's proposed alternative measure would entail significant technical, 
financ ial and resource obstacles for Indonesia, if it were even possible at all. It is simply theoretical 
in nature, far removed from the regulatory reality in Indonesia, and thus not a reasonably available 
alternative measure.103   
69. Indeed, any measure that is remedial in character is not a reasonably available alternative 
measure that would make an equivalent contribution to the enforcement of Indonesia's sustainable 
mining and mineral resource management requirements at Indonesia's chosen level of protection. 
This is because, unlike the export prohibition at issue, such measures do not remove ex ante all of 
the foreign demand for Indonesia's nickel ore from the market, thus rendering any export activity 
illegal preventively, and alleviating the burden of verify ing conformity ex post . Moreover, any 
measure that seeks to secure compliance exclusively at the point of exportation would not allow 
Indonesia to regulate both the supply and demand ends of the nickel ore production chain.    
70. The Panel should thus find th at the European  Union has failed to identify a reasonably available 
alternative measure that would make an equivalent contribution to Indonesia's enforcement 
objective at Indonesia's chosen level of protection. As the Appellate Body has held, governments 
"may adopt preventive measures" in pursuit of legitimate policy objectives, and are not required to 
adopt, instead, remedial measures that involve "prohibitive costs or substantial technical 
difficulties".104  
D. The Challenged Measures are Applied Consist ently with the Chapeau of  
Article  XX of the GATT  1994  
 
71. Finally , the measures at issue are applied consistently with the chapeau of  Article  XX of the 
GATT  1994. In particular, they are not applied in a manner that would constitute a means of arbitrary 
 
99 Appellate Body Report, Brazil - Retreaded Tyres , para. 156.  
100 Indonesia's response to Panel question No. 107, paras. 357 -359; Indonesia's response to Panel 
question No. 110, paras. 375 -377; Indonesia's comments on the European  Union's response to Panel question 
No. 111, paras. 87 -95. 
101 European  Union 's response to Pa nel question No. 111, para. 151.  
102 Indonesia's comments on the European  Union's response to Panel question No. 111, paras. 87 -95. 
103 As the Appellate Body has held, "an alternative measure may be found not to be 'reasonably 
available' … where it is mere ly theoretical in nature" (Appellate Body Report, US – Gambling , para. 308).  
104 Appellate Body Report, Brazil – Retreaded Tyres , para. 171.  WT/DS592/R/Add.1  
 
- 47 - 
 
  or unjustifiable discrimination between countries where the same conditions prevail, or a disguised 
restriction on international trade.  
72. Indeed , there is no differential treatment entailed by the application of challenged measures, 
let alone differential treatment that can be characterized as arbitrary or unjustifiable discrimination 
under the chapeau  of  Article  XX. Far from reflecting any discrimination, th e measures at issue do 
not distinguish at all between Indonesia's trading partners. Both measures apply with equal force 
regardless of the importing country concerned. Put another way, the challenged measures are 
applied even -handedly because all importing  countries receive the same treatment. The 
European  Union's arguments to the contrary proceed from a faulty legal premise, namely, that the 
discrimination proscribed under the chapeau  refers to discrimination between "purchasers" of nickel 
ore in Indonesia  and "all other purchasers".105 This argument is unpersuasive.106   
73. First, there  is no legal basis for the proposition that the chapeau covers discrimination between 
"purchasers". Instead, the chapeau, like other provisions of the GATT  1994, covers discr imination 
between and among "products" and hence producers of the product at issue. Second, the 
discrimination proscribed by the chapeau is, by its own terms, limited to discrimination between 
"countries where the same conditions prevail". This is clearly a reference to discrimination between 
and among the trading partners of the country applying the measure at issue. In this way, the 
chapeau ensures even -handed application of measures otherwise inconsistent with the GATT  1994 
to all similarly situated Memb ers. Third, and finally, the Panel's analysis under the chapeau of  
Article  XX must focus on the element of the measures found to be inconsistent with the GATT  1994 
disciplines. In the present case, if the Panel were to reach the chapeau of  Article  XX, it  is because 
it has concluded that the measures are prohibited export restrictions. Hence, it is discrimination in 
the treatment of exports that is the relevant inquiry, not any distinction between exports and 
domestic sales. Put differently, a domestic sal e cannot be magically converted into an export sale 
under the chapeau of  Article  XX.107  
74. In any event, even if the interpretation advanced by the European  Union was correct, quod 
non, any alleged discrimination resulting from the application of the measu res at issue is rationally 
related to their policy objective. This is because, as confirmed by evidence on the record, foreign 
and domestic purchasers are not similarly placed in respect of their compliance risk profile. As such, 
there is undoubtedly a rat ional relationship between the discrimination alleged by the 
European  Union and the enforcement objectives of the challenged measures.108  
VII. CONCLUSION AND REQUEST FOR FINDINGS  
 
75. For all of the foregoing reasons, Indonesia respectfully requests that the Panel find that the 
European  Union has failed to establish that the domestic processing requirement is inconsistent with  
Article  XI:1 of the GATT  1994.  
76. Alternatively, Indonesia reque sts that the Panel find that the challenged measures are 
justified under  Article  XI:2(a) of the GATT  1994 as measures temporarily applied to prevent or 
relieve a critical shortage of nickel, a product that is essential to Indonesia.  
77. If the Panel were  to conclude otherwise, then Indonesia respectfully requests that the Panel 
find that the challenged measures are justified under  Article  XX(d) of the GATT  1994 as measures 
necessary to secure compliance with Indonesia's WTO -consistent laws or regulations . 
_______________  
 
 
 
105 European  Union’s second written submission, para. 293.  
106 Indonesia's response to Panel question No. 109, para s. 360 -361. 
107 Indonesia's response to Panel question No. 109, paras. 36 2-364. 
108 Indonesia's response to Panel question No. 109, paras. 370 -374. WT/DS592/R/Add.1  
 
- 48 - 
 
  ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Brazil  49 
Annex  C-2 Integrated executive summary of the arguments of Canada  52 
Annex  C-3 Integrated executive summary of the arguments of India 56 
Annex  C-4 Integrated executive summary of the arguments of Japan 59 
Annex  C-5 Integrated executive summary of the arguments of the Republic of Korea  66 
Annex  C-6 Integrated executive summary of the arguments of Ukraine  69 
Annex  C-7 Integrated executive summary of the arguments of the United Kingdom  71 
Annex  C-8 Integrated executive summary of the arguments of the United States  73 
 
 WT/DS592/R/Add.1  
 
- 49 - 
 
  ANNEX C -1 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF BRAZIL* 
1. Brazil appreciates  the opportunity to present this Oral Statement as a third party in the current  
proceedings.  
2. In this statement, Brazil will briefly address five is sues. First, whether both challenged 
measures are under the scope of Article XI:1 of the GATT 1994. Second, whether the challenged 
measures can be considered "temporary " within the meaning of Article XI:2(a) of the GATT 1994. 
Third, whether Indonesia has s ufficiently specified the laws or regulations with which the challenged 
measures allegedly seek to secure compliance. Fourth, whether there are alternative, less -trade 
restrictive measures that could achieve equivalent results. And, finally, whether the ch allenged 
measures constitute "arbitrary or unjustifiable discrimination " within the meaning of the chapeau of 
Article XX of the GATT.  
Article XI of the GATT 1994  
3. At the outset, Brazil deems it important that the Panel determine whether both challenged 
meas ures – namely Indonesia 's (i) export prohibition of nickel ore and its (ii) domestic processing 
requirements for nickel ore – are within the scope of Article XI:1 of the GATT 1994.  
4. In its first written submission, Indonesia claims that the EU has failed t o make a prima facie  
case that the challenged domestic processing requirements introduced by Regulation 25/2018 of 
Indonesia 's Ministry of Energy and Mineral Resources (MEMR) are inconsistent with Article XI:11, 
because they did not demonstrate that those  measures have a limiting effect on the exportation of 
nickel ore.2  
5. The crux of Indonesia's  argument is that, due to MEMR Regulation 11/2019, which introduced 
an outright ban on exports of nickel ore as from 1st of January 2020, the domestic processing 
requirements imposed by MEMR Regulation 25/2018 ceased to be a limitation on the exportation of 
nickel ore, and became a regulation affecting the internal sale of this mineral, subject to Article III:4 
of the GATT 1994.  
6. As Brazil argued  in its first written  submission, the entry into force of MEMR Resolution 
11/2019 is not a relevant factor in determining whether the domestic processing requirements 
imposed by Indonesia entail a limitation on exports of nickel ore.3 In Brazil 's view, all challenged 
measures should be examined in and of themselves in light of Article XI:1 of the GATT 1994. This 
approach is reasonable because the domestic processing requirements and the export prohibition 
impose separate export restrictions in and of themsel ves, thus creating superposed limitations on 
the exports of nickel ore.  
7. Moreover, accepting  Indonesia 's argument could lead to a situation in which the complainant 
could be denied a positive solution to the dispute. In fact, if the only factor preventing M EMR 
Regulation 25/2018 from being considered as imposing a limitation on exports is the existence of 
MEMR Regulation 11/2019, a finding limited to the latter measure, and its subsequent withdrawal 
on implementation, would simply trigger the limiting effect s of the former measure.  
8. As a second issue, Brazil would like to address Indonesia 's claim that its measures are covered 
by the exemption  in Article XI:2(a) of the GATT 1994, because they are "temporarily applied to 
prevent or relieve critical shortages o f […] products essential to " Indonesia.  
9. In its first written submission, Indonesia refers to the Appellate Body 's jurisprudence in China 
– Raw Materials ,4 according to which a measure may be considered temporary when it is "applied 
 
* Brazil requested that its oral statement serves as its executive summary.  
1 First Written Submission of Indonesia, para. 80.  
2 Ibid. 
3 Brazil 's First Written Submission, paras. 7 -10. 
4 Indonesia 's First Written Submission, para. 93.  WT/DS592/R/Add.1  
 
- 50 - 
 
  for a limited duration, adopted in order to bridge a passing need, irrespective of whether or not the 
temporal scope of the measure is fixed in advance."5 
10. Brazil agrees  that the  jurisprudence in China – Raw Materials  could provide guidance in 
resolving this dispute. It is true that, in that case, the Appellate Body disagreed with the Panel 
regarding the necessity of a temporal scope fixed in advance for a measure to be considered  
temporary within the meaning of Article XI:2(a) of the GATT 1994. However, this did not prevent 
the Appellate Body from upholding the Panel 's conclusion that China had not demonstrated that the 
measure in question was "temporarily applied " to prevent or r elieve a "critical shortage ".6  
11. In fact, the Appellate Body did not disagree with the Panel 's findings that, "if there is no 
possibility for an existing shortage ever to cease to exist, it will not be possible to 'relieve or prevent' 
it through an export restriction applied on a temporary basis. "7 With that in mind, Brazil believes 
that the Panel in this dispute should examine whether the critical shortage of nickel ore indicated by 
Indonesia can be considered a "passing need ", or whether, instead, it is unlikely that this shortage 
will ever cease to exist. This analysis could aid the Panel in determining the applicability of Article 
XI:2(a) of the GATT 1994 to the challenged measures.  
Article XX(d) of the GATT 1994  
12. As a third issue, Brazil would like to discuss whether Indonesia has sufficiently specified the 
laws or regulations whose compliance is secured by the challenged measures, pursuant to Article 
XX(d) of the GATT 1994.  
13. We recall  that, in India – Solar Cells , the Appellate B ody decided that, in assessing "whether 
an instrument constitutes a 'law or regulation ' within the meaning of Article XX(d), a panel should 
also consider the degree of specificity or precision with which the relevant instrument lays down a 
particular rule of conduct or course of action within the domestic legal system of a Member, as 
opposed to simply providing a legal basis for action that may be consistent with certain objectives. "8 
14. In this context, Brazil considers that the Panel should examine whether the instruments 
pointed out by Indonesia as "laws or regulations " within the meaning of Article XX(d) can be read to 
set out specific rules, obligations or requirements to ensure the protection of the environment and 
the conservation of natural resources. In Brazil 's view, the specific rules, obligations, or requirements 
with respect to which the challenged measures seek to secure compliance are still not entirely clear 
from Indonesia 's first written submission.9 
15. In continuing  its examination under Article  XX(d), the Panel will likely conduct an analysis of 
the "necessity " of the measures Indonesia seeks to justify. Such analysis entails a consideration of 
whether there are alternative, less -trade restrictive measures that could achieve equivalent results 
to the challenged measures. It is incumbent on the complaining party to demonstrate the existence 
of such alternative measures.  
16. Up to this point, the EU is yet to present alternative measures for the Panel 's appreciation. 
However, in the event that such mea sures are presented in the next stages of this dispute, Brazil 
encourages the Panel to consider them in light of the fact that the government of Indonesia has 
specifically chosen to target exports rather than production. In our view, measures limiting dome stic 
sales and exports of nickel ore to that which has been produced according to sustainable mining 
practices, without entailing a prohibition on exports, could be a less trade -restrictive alternative to 
the measures challenged in this dispute.  
17. As a final  issue, Brazil would like to refer to an argument raised by Japan in its third party 
submission regarding the consistency of the challenged measures with the chapeau of Article XX of 
the GATT 1994.10 According to the chapeau, the measures a Member seeks to  justify under Article 
 
5 Appellate Body Report, China - Raw Materials , para. 331.   
6 China – Raw Materials , Report of the Appellate Body, para. 344.  
7 China – Raw Materials , Report of the Appellate Body, para. 336.  
8 Appellate Body Report, India – Solar Cells , para. 5.110 (footn otes omitted).  
9 Third Party Submission of Brazil, paras. 22 -25. 
10 Japan 's Third Party Submission, par. 44.  WT/DS592/R/Add.1  
 
- 51 - 
 
  XX of the GATT 1994 must not constitute "arbitrary or unjustifiable discrimination between countries 
where the same conditions prevail" nor a "disguised restriction on international trade."  
18. Therefore , in order to determine whether a measure satisfies the requirements of the chapeau 
of Article XX of the GATT 1994, panels are expected to delve into the rationale presented to explain 
the measures ' objectives. If there is no logical connection between the reasons given for the 
challenged measures and their stated objective, one could conclude that such measures constitute 
an "arbitrary or unjustifiable discrimination " or a "disguised restriction on international trade. " 
19. With regard to the specific facts of this case, Japan rightl y points out that, in the absence of 
limitations on domestic demand, an export prohibition alone bears no rational relationship with the 
goal of conserving an exhaustible resource.11 In such a scenario, domestic demand would continue 
to further the depleti on of exhaustible reserves, i.e. of nickel ore, and would thus undermine the 
achievement of the stated objective of the measure.  
20. This concludes  Brazil's statement. Thank you.
 
11 Ibid. WT/DS592/R/Add.1  
 
- 52 - 
 
  ANNEX C -2 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF CANA DA* 
I.  INTRODUCTION  
1. Madam Chairperson, distinguished members of the Panel, Canada would like  first to express 
its appreciation to the Panel and the Secretariat for their work in this  dispute,  and for the  opportunity  
we have been given  to express  our views  today.  
2. This dispute concerns Indonesia's export restrictions, specifically the export  prohibition of 
nickel ore and domestic processing requirements with regard to certain  raw materials,  notably  nickel  
ore and iron ore, prior to them being  exported.  
3. Canada is an exporter of significant amount of raw materials and its companies are engaged 
in raw material extraction throughout the world. In this role, Canada has a systemic interest in the 
interpretation of the disciplines governing export restrictions and their justification.  
4. Several policy objectives motivate restrictions on the export of strategic raw materials. 
Conservation of natural resources and protection of the environment are two of them. In contrast, 
policy objectives such as the protection of  domestic downstream industries can also motivate export 
restrictions. The balance between employing export restrictions for legitimate public policy objectives 
as opposed to protectionism is reflected in the scope of Article XI:1 of the GATT 1994, which i s 
qualified by Article XI:2 and in the enumerated exceptions in Article XX of the GATT 1994.  
5. Canada's oral statement will focus on the order of analysis and burden of proof between Article 
XI:I, Article XI:2(a) and Article XX of the GATT 1994, the legal st andard under Article XI:2(a) and 
the determination of necessity under Article XX(d) of the GATT 1994.  
II. THE ORDER OF ANALYSIS THAT IS REQUIRED BY THE CORRECT  INTERPRETATION  
OR APPLICATION  OF THE LEGAL  PROVISIONS AT ISSUE  
6. Article XI:2 and Article XX of the GATT 1994 are in the nature of affirmative defences.1 
Therefore, the Panel should first assess whether the measures at issue fall within the scope of, and 
are inconsistent with, Article XI:1 of the GATT 1994. If so, then the Panel should determine whe ther 
the measures meet the requirements of Article XI:2(a). If the Panel finds they do not, then the Panel 
should consider whether the measures are justifiable under Article XX(d) of the GATT 1994.  
7. The burden of proof rests upon the party, whether complain ing or defending, that asserts a 
fact or the affirmative of a particular or defence. This means that in this case the European Union 
must assert and prove its claim of a violation under Article XI:1. In turn, Indonesia, as the party 
invoking provisions tha t are exceptions to the allegedly violated obligation bears the burden to prove 
that the conditions set out in the exceptions are met.2 
A. Whether  the measures  at issue  fall within  the scope  of Article  XI:2(a)  
8. Canada agrees with Indonesia that Article XI:2(a) applies to measures that fall within the 
scope of Article XI:1, that is, measures that ban or have a limiting effect on exports.3 
9. In Canada's view, the issue is whether the requirements of Article XI:2(a) are met.  
 
* Canada requested that its oral statement serves as its executive summary.  
1 Panel Reports, China ‒ Raw Materials , para. 7.211, referring to Appellate Body Report, US ‒ Wool 
Shirts  and Blouses , p. 16. 
2 Appellate Body  Report, US ‒ Wool Shirts and  Blouses , p. 16.  
3 Indonesia's  first written submission,  para. 90. WT/DS592/R/Add.1  
 
- 53 - 
 
  10. The Appellate Body examin ed the meaning of the following concepts in Article XI:2(a) ‒ 
"temporarily applied," "to prevent or relieve critical shortages," and "foodstuffs or other products 
essential to the exporting Member."4 
11. First, examining the meaning of "temporary," and its us e with the word "applied," the 
Appellate Body considered that "the definitional element of 'supply[ing] a passing need' suggests 
that Article XI:2(a) refers to measures that are applied in the interim."5 Further, the Appellate Body 
noted the differences in scope of Article XI:2(a) and Article XX(g). Specifically, regarding Article 
XI:2(a), the Appellate Body noted that the Panel had reasoned that "if there is no possibility for an 
existing shortage ever t o cease to exist, it will not be possible to 'relieve or prevent' it through an 
export restriction applied on a temporary basis."6 Thus, the requirement for the measure to be of a 
temporary nature as opposed to a long -term conservation measure is an impor tant consideration to 
keep in mind when dealing with exhaustible natural resources such as minerals.  
12. Next, the Appellate Body considered that "[t]aken together, 'critical shortage' [...] refers to 
those deficiencies in quantity that are crucial, that amoun t to a situation of decisive importance, or 
that reach a vitally important or decisive stage, or a turning point."7 Further, the Appellate Body 
noted that inherent in the notion of criticality is the expectation of reaching a point in time when 
conditions  are no longer "critical," such that measures will no longer fulfil the requirement of 
addressing a critical shortage.8 This can be contrasted with a provision such as Article XX(g), which 
addresses measures relating to conservation of exhaustible natural  resources9 without necessarily 
responding to a critical shortage or threat of a critical shortage.  
13. The Appellate Body also considered the phrase "general or local short supply" in Article XX(j) 
as providing relevant context for interpretation of the term  "critical shortage" in Article XI:2(a). The 
Appellate Body found that the reference to "short supply" in Article XX(j) had a very similar meaning 
to "shortage" in Article XI:2(a). However, Article XI:2(a) includes the adjective "critical" which 
suggests t hat the types of shortages that fall within the scope of Article XI:2(a) are more narrowly 
circumscribed that those within the scope of Article XX(j).10 Therefore, the Panel in this case will 
need to consider whether the shortage or potential shortage is o f a "critical" nature.  
14. Finally, the shortage must relate to "foodstuffs or other products essential to the exporting 
member," i.e. it must relate to food "or otherwise absolutely indispensable or necessary products."11 
15. In addition, the Appellate Body expla ined that Article XI:2(a) "allows Members to apply 
prohibitions or restrictions temporarily in order to 'prevent or relieve' such critical shortages." 
Therefore, the Appellate Body understood Article XI:2(a) "as providing a basis for measures adopted 
to alleviate or reduce an existing critical shortage, as well as for preventive or anticipatory measures 
adopted to pre -empt an imminent critical shortage."  
16. The Appellate Body also stated that Article XI:2(a) "must be interpreted so as to give meaning 
to each o f the concepts in that provision," and, at the same time, it should be taken into account 
that "these different concepts impart meaning to each other, and thus define the scope of Article 
XI:2(a)." For example, it explained, "whether a shortage is 'critica l' may be informed by how 
'essential' a particular product is." Moreover, "the characteristics of the product as well as factors 
pertaining to a critical situation, may inform the duration for which a measure can be maintained in 
order to bridge a passing need in conformity with Article XI:2(a)." In short, it requires a "case -by-
case analysis taking into consideration the nexus between the different elements contained in Article 
XI:2(a)."12 
 
4 Appellate  Body Reports,  China  ‒ Raw Materials , para. 322. 
5 Ibid, para. 323. 
6 Appellate Body Reports, China ‒ Raw Materials , para. 336, referring to Panel Reports, China ‒  Raw 
Materials , para.  7.297.  
7 Appellate  Body Reports,  China  ‒ Raw Materials , para. 324. 
8 Ibid, para. 328. 
9 Ibid, para. 337. 
10 Ibid, para. 325. 
11 Ibid, para. 326. 
12 Appellate  Body Reports,  China  ‒ Raw Materials , paras.  327-328. WT/DS592/R/Add.1  
 
- 54 - 
 
  17. Therefore, the Panel must consider whether Indonesia has demonstrat ed that its measures 
meet the requirements of each element.  
18. If, after examining the facts and arguments put forward by the disputing Members, the Panel 
determines that these three elements are met, then the export ban would be justifiable pursuant to 
Article XI:2(a).  
19. If one or more of the three requirements under Article XI:2(a) are not met, then the Panel 
should consider whether the export ban is justifiable under Article XX(d) of the GATT 1994.  
B. Whether  the measures  are justifiable  under  Article  XX(d)  of the GATT 1994  
1. Indonesia submits that the measures are necessary to  secure  compliance  
with Indonesia's  laws  and regulations  under  Article XX(d)  of the GATT  1994  
20. Turning to Indonesia's defence under Article XX(d) of the GATT 1994, Indonesia submi ts that 
the measures are "necessary" because their contribution to securing compliance with those 
requirements outweighs their trade -restrictiveness, in the light of the importance of the interests or 
values they address.13 
21. In Canada's view, Indonesia correctly explains that in order to determine whether a measure 
is "necessary" under Article XX(d) of the GATT 1994, a panel must "assess all the relevant factors, 
particularly the extent of the contribution to the achievement of a measure's obje ctive and its trade 
restrictiveness, in the light of the importance of the interests or values at stake." If this analysis 
yields a preliminary conclusion that the measure is necessary, this result must be confirmed by 
comparing the measure with its possib le alternatives, which may be less trade restrictive while 
providing an equivalent contribution to the achievement of the objective pursued.14 
22. Indonesia refers to US – Gambling  regarding reasonably available alternatives and argues that 
it is incumbent upo n the European Union to put forward alternative measures to rebut Indonesia's 
prima facie demonstration that the export prohibition on nickel ore and the domestic processing 
requirement is "necessary" within the meaning of Article XX(d) of the GATT 1994.  
23. Canada agrees that the first step is to determine if Indonesia has prima facie demonstrated 
that the measures are necessary and if so, Canada agrees that it is incumbent on the European 
Union, to put forward reasonably available alternative measures to rebu t the presumption.  
2. The "necessary" standard of the exception of Article  XX(d) of the 
GATT  1994 and whether there is a  reasonably alternative measure that 
leads to a lesser  degree  of inconsistency  with the rules  of the GATT  1994  
24. For a measure, otherwise inconsistent with GATT 1994, to be justified provisionally under 
paragraph (d) of Article XX, two elements must be shown. First, the measure must be one designed 
to "secure compliance" with laws or regulations that are not themselves inconsistent  with some 
provision of the GATT 1994. Second, the measure must be "necessary" to secure such compliance.15 
25. We will focus on the "necessary" standard and the availability of alternative measures.  
26. With respect to the "necessary" requirement, in US ‒ Gamblin g, the Appellate Body referred 
to its finding in Korea ‒ Various Measures on Beef and said that determining whether a measure is 
necessary involves the weighing and balancing process set out in that dispute and "begins with an 
assessment of the 'relative i mportance' of the interests or values furthered by the challenged 
measure." As for the two other factors, which, it noted, are not "exhaustive" as to the possible 
factors to be considered, one is "the contribution of the measure to the realization of the e nds 
pursued by it," and the other is "the restrictive impact of the measure on international commerce." 
In addition to examining these factors, it said, "[a] comparison between the challenged measure 
 
13 Indonesia's  first written  submission, para.  14. 
14 Ibid, paras.  218-220 
15 Appellate Body  Report, Korea  ‒ Various  Measures  on Beef, para. 157. WT/DS592/R/Add.1  
 
- 55 - 
 
  and possible alternatives should then be undertaken, and  the results of such comparison should be 
considered in the light of the interests at issue." The Appellate Body then stated:  
It is on the basis of this "weighing and balancing" and comparison of  measures, taking 
into account the interests or values at stake, that a  panel determines whether a measure 
is "necessary" or, alternatively,  whether  another,  WTO-consistent  measure  is 
"reasonably  available."16 
27. Canada submits that the "necessary" standard that the Appellate Body has laid out requires a 
panel to lo ok at the weighing and balancing of the specific factors and the element of reasonably 
available alternative measures.  
28. It is for the complaining Member, in this case the European Union, to make arguments 
regarding any reasonably available alternative measu res. However, should it do so, then Indonesia, 
as the responding Member, would need to explain why the alternative measure or measures put 
forward by the complainant were not reasonably available or did not make the same contribution as 
the challenged meas ure. 
29. On this point, Canada refers to the dispute China ‒ Rare Earths  where the Panel examined on 
an arguendo basis China's argument that its export duties were justified under Article XX(b) of the 
GATT 1994 because they were "necessary to protect human, an imal or plant life or health."  
30. Regarding the existence of alternative measures, China argued that the complainants had to 
identify reasonably available alternative measures that would make the same contribution to the 
protection of human, animal and plant life or health. In this regard, the Panel noted that all three 
complainants did in fact identify alternative measures that China could or was already using at the 
time, including requirements for strict compliance with environmental requirements as a condi tion 
for access to the products, requirements for mines to make deposits for ecological recovery, an 
increase in resource taxes, imposition of a pollution tax, and an increase in volume restrictions on 
mining and production. China responded that measures a lready imposed by China were not in fact 
alternatives.  
31. In response, the Panel accepted that China already imposed the measures identified, but the 
Panel considered that China "ha[d] not explained why it could not, as an alternative to the export 
duties, in crease volume restrictions and pollution controls and the resource tax, and/or the pollution 
tax." In this regard, the Panel agreed with Japan that "China could increase the resource tax on ores 
significantly enough to deter domestic production," but China  failed to respond to this WTO - 
consistent alternative. On this basis, the Panel concluded that China did not meet its burden of 
demonstrating that the alternative measures put forward by the complainants were not reasonably 
available to China, or did not make the same contribution as the challenged measure.17 
32. The Panel should keep in mind that export restrictions are used by policymakers to respond 
to a number of social, economic and political objectives. These include objectives such as 
environmental prot ection and preservation of reserves of strategic raw materials for future use.  
33. The effectiveness and the potential social benefits of export restrictions should be carefully 
weighed against the distorting effects on trade that they cause and any alternativ e tools identified 
that are reasonably available to policy makers.  
III. CONCLUSION  
34. Canada thanks the Members of the Panel for their attention. Should the Panel have any 
questions, we would be pleased to respond either orally or in writing .
 
16 Appellate Body  Report, US ‒ Gambling , paras.  304-309. 
17 Panel  Reports,  China ‒  Rare Earths , paras.  7.180 -187. WT/DS592/R/Add.1  
 
- 56 - 
 
  ANNEX C -3 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF INDIA* 
Introductory Statements  
1. Good Afternoon to the Meeting. India appreciates this opportunity to present its views on the 
issues raised in this panel proceeding. India has a systemic interest in ensuring the correct legal 
interpretation and application of all WTO covered agreements, including the GATT 1994.  
2. India understands the EU to have challenged the MEMR Regulation 11/2019 and 96/2019 as 
export prohibition measures and the MEMR Regulation 25/2018 as containing certain domestic 
processing requirements that constitute an export restriction inconsistent with Article XI:1 of 
the GATT 1994.  
3. India does not take a position on the factual issues raised in this dispute. However, Indi a wishes 
to present some views on: (i) the legal standard applicable  to export restriction under 
Article  XI:1 of the GATT 1994; and (ii) the scope of the term "restriction ". 
I. Export Restriction under Article XI:1 of the GATT 1994  
4. The EU appears to have c laimed that the domestic processing requirement under MEMR 
Regulation 25/2018 poses a restriction on export of low concentration nickel ore because it 
imposes a mandatory legal obligation to purify and/or process the raw mining products in 
Indonesia before  exporting the relevant goods.1 Further, the EU is understood to have claimed 
that the measure restricts the possibility to export unpurified or unprocessed raw material.2  
5. Indonesia has responded that the MEMR Regulation 25/2018 does not have any "limiting effect " 
on the exportation of nickel ore.3 Indonesia highlights that with the enactment of MEMR 
Regulation 11/2019, a complete prohibition on the export of nickel has been imposed as of 
1 January 2020, irrespective of its concentration. As a result, t he domestic processing 
requirement in MEMR Regulation 25/2018 neither operates as a pre -condition for the 
exportation of nickel ore, nor restricts said exports because the exportation of nickel ore is 
legally prohibited in the first place.4 
6. India notes th at the EU has challenged the domestic processing requirements in MEMR 
Regulation 25/2018 as a standalone measure operating independently. Accordingly, if the Panel 
finds that the two MEMR Regulations operate independently, it should evaluate the consistenc y 
of the measures with Article XI:1 of the GATT independently.  
7. Turning to the applicable legal standard, India notes that for a measure to be inconsistent with 
Article XI:1 of the GATT 1994, it must be demonstrated that the measure falls within the scope 
of the phrase 'quotas, import or export licenses or other measures', and, that the measure 
constitutes a prohibition or restriction on the importation or on the exportation or sale for export 
of any product5 destined for the territory of any other contract ing party.  
1. Scope of the term 'restriction' in Article XI:1 of GATT 1994  
8. India recalls that whether a measure is a quota, import or export license or other measure 
restricting import or export of products constitutes the first component in assessing the  
consistency of a purported quantitative restriction.  
 
* India requested that its oral statement serves as its executive summary.  
1 EU's first written submission, para. 50.  
2 Ibid.  
3 Indonesia's first written submission, para. 80.  
4 Indonesia's first written submission, paras. 82 -83. 
5 Appellate Body Report, Argentina – Import Measures , paras. 5.216 -5.218.  WT/DS592/R/Add.1  
 
- 57 - 
 
  9. The Oxford Dictionary of English defines 'restriction ' as a noun meaning 'a limiting condition or 
measure , especially a legal one ', and a mass noun meaning 'the limitation or control of someone 
or some thing, or the state of being restricted '. 'Limiting ' means 'setting or serving as a limit to 
something ', and in this context, a 'limit' is defined as 'a point or level beyond which something 
does not or may not extend  or pass ' and 'a restriction on the size or amount of something 
permissible  or possible '. Black's Law Dictionary defines restriction as a 'limitation or 
qualification '. The ordinary meaning of the term 'restriction ' therefore implies that the measure 
at issue must be one that:  
(i) sets a point o r level beyond which exports or sales for export of a product cannot 
extend; or  
(ii) restricts the amount of exports or sales for export of a product that is permissible or 
possible.6  
Therefore, for the measure at issue in this dispute to fall within the mea ning of 'restriction ', it 
must quantitatively limit the exports or sales for exports of nickel ore destined for the territory 
of another Member that is possible or permitted.  
10. Panels have also previously found that the ordinary meaning of the term restricti on to be "a 
limiting condition or measure, especially a legal one. "7 It has been interpreted under Article  XI:1 
to mean 'a limitation on action, a limiting condition or regulation '.8 
11. The scope of the term 'restriction ' under Article XI:1 of the GATT 1994 is not unlimited. India 
recalls in the context of importation that "not every measure affecting the opportunities for 
entering the market would be covered by Article XI, but only those measures that constitute a 
prohibi tion or restriction on the importation of products, i.e. those measures which affect the 
opportunities for importation itself ".9  
12. Moreover, every formality, or charge, does not amount to a restriction on imports that is 
inconsistent with Article XI:1, GAT T 1994.10 In Indonesia – Chicken (Article 21.5 – Brazil) , the 
panel found Brazil to not have demonstrated that the burden or cost on importers of certain 
charges and formalities was of such nature and extent as to preclude or dissuade them from 
requesting changes to the import documents.11 
13. In order words, Article XI:1 does not cover simply any restriction or prohibition. It covers only 
those conditions that are demonstrated to limit the importation or exportation of products 
through the design, architecture , and structure of the measure itself, considered in its relevant 
context.12 Therefore, in circumstances of de facto  restriction, greater evidentiary weight would 
be attached to the actual trade impact of the measure.13  
14. For these reasons, India views that  a wide interpretation of 'restriction ' in Article XI:1 that 
makes the provision applicable to any condition that may have an indirect or remote limiting 
effect on trade would not be reasonable or legally sound. Furthermore, it would curtail Members ' 
policy space to formulate policies concerning the goods produced, manufactured or extracted 
within their territories. Such an interpretation would blur the distinction between the notions of 
'restriction ' and other incidental barriers to trade.14 Therefore, in this case, the Panel would 
have to evaluate whether the measure presented by the EU affects export opportunities, by 
 
6 Black 's Law Dictionary, 8th edition, 1341.  
7 Restriction , Oxford Dictionary, a vailable at< https://en.oxforddictionaries.com/definition/restriction > 
accessed on 17 November 2021.   
8 Panel Report, India – Quantitative Restrictions , para. 5.128. Also see, Appella te Body Reports, China – 
Raw Materials , paras. 319 -320.   
9 Panel Report, Dominican Republic – Import and Sale of Cigarettes , para. 7.261.   
10 Panel Report, Indonesia – Chicken (Article 21.5 – Brazil) , para. 7.232.  
11 Ibid. 
12 Appellate Body Report, Argentina – Import Measures , para. 5.217  
13 Panel Report, Argentina – Hides and Leather , paras. 11.20 -11.21.  
14 Panel Report, Dominican Republic – Import and Sale of Cigarettes , para. 7.262.   WT/DS592/R/Add.1  
 
- 58 - 
 
  way of a quantitative limitation on exports or sale for exports, in order for the measure to fall 
within the scope of the term 'restriction ' under Article XI:1 of the GATT.    
2. The restriction must be linked to the importation or exportation of any product  
15. India also wishes to address the second element of the legal standard under Article XI:1, i.e., 
the prohibition or restriction on the importation or on the exportation  of any product . 
Article  XI:1 provides that no prohibitions or restrictions (other than duties, taxes, or other 
charges) shall be instituted or maintained by any Member, on the importation or exportation of 
any product. Fro m the ordinary meaning of this provision, India notes that it is clear that the 
measure must, at the very least: (i) be in the nature of a restriction on (ii) the importation  or 
exportation  of a product.  
16. In this context, India recalls that the Appellate Bo dy, in China – Raw Materials , concluded that 
Article XI covers those prohibitions and restrictions that have a limiting effect on the quantity 
or amount of a product being imported or exported.15 In other words, the measure in question 
must be a condition for the importation or exportation itself.16 
17. In India – Autos , the Panel found that as the measure required acceptance of a so -called 'trade 
balancing condition ' it imposed a restriction on imports and therefore was inconsistent with 
Article XI:1 of the GA TT 1994. The trade balancing condition effectively limited the quantity of 
imports that a manufacturer was able to undertake, as the measure provided that the import 
licenses would be granted to those manufacturers who undertook to comply with export 
balan cing requirements, i.e., a requirement to undertake a certain quantity of exports. In this 
case, an importer was not free to import as many kits or components as he otherwise could 
have in the absence of the limitation, because there is a finite limit to t he amount of possible 
exports .17 Further, Dominican Republic – Import and Sale of Cigarettes  illustrates another factor 
that was evaluated to establish that the measure at issue was not a restriction or prohibition 
on import or export restriction: the bond  requirement in question was not enforced either at 
the time or at the point of importation, and was not administered by the customs authority, but 
the internal tax authorities.18 
III. Conclusion  
18. India adds that whether Article XI, GATT 1994 applies to the  measure at issue could also be 
relevant to the Panel's analysis in this dispute19 – this could be discussed as the proceedings 
progress. In sum, evaluating the consistency of the domestic processing requirement in MEMR 
Regulation 25/2018 vis -à-vis Article  XI:1 of GATT 1994 would require establishing that there is 
a requirement in the measure at issue that has a limiting effect on the quantity of exports or 
sale for exports of nickel ore, and is a condition or restriction on the exportation of nickel ore 
from Indonesia.   
19. India appreciates the opportunity to comment on these issues in these proceedings and hopes 
that the viewpoints presented in this submission would assist the Panel in its consideration of 
the issues raised in this dispute.
 
15 Appellate Body Reports, China – Raw Ma terials , paras. 319 -320. 
16 Panel Report, Dominican Republic – Import and Sale of Cigarettes , para. 7.265.  
17 Panel Report, India – Autos , paras 7.318 – 7.322.  
18 Panel Report, Dominican Republic – Import and Sale of Cigarettes , paras. 7.257 – 7.258.  
19 Panel Report, India – Autos , para. 7.220, citing GATT Panel Report, Canada – FIRA, para 5.14 
adopted 07  February 1984, BISD 30S/140.  WT/DS592/R/Add.1  
 
- 59 - 
 
  ANNEX C -4 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF JAPAN  
I. ARTICLE XI:1 OF THE GATT 1994  
 
Prima Facie Case  
 
1. Indonesia  does not dispute that its regulations legally prohibit the exportation of nickel ore.1  
Rather , Indonesia argues that the European Union failed to make a prima facie case that the 
domestic processing requirement , as applied to nickel ore,  is inconsistent  with Article XI:1 of the 
GATT 1994.2  Specifically, Indonesia argues that the domestic processing requirement:  
neither operates as a pre -condition for the exportation of nickel ore nor restricts said 
exports because the exportation of nickel ore, regardl ess of concentration, is legally 
prohibited in the first place.3 
In other words, Indonesia asserts that the domestic processing requirement does not restrict 
exportation of nickel ore because, with the enactment of MEMR Regulation 11/2019, exportation of 
that ore is entirely prohibited.  
 
2. Article  XI:1 of the GATT 1994 provides:  
General Elimination of Quantitative Restrictions  
No prohibitions or restrictions other than duties, taxes or other charges, whether made 
effective through quotas, import or export li cences or other measures, shall be instituted 
or maintained by any contracting party on […] the exportation or sale for export of any 
product destined for the territory of any other contracting party.  
3. In Argentina – Import Measures , the Appellate Body explained that, in the context of 
Article  XI:1 of the GATT 1994, the limitation on the importation or exportation "need not be 
demonstrated by quantifying the effects of the measure at issue; rather, such limiting effects can 
be demonstrated through the de sign, architecture, and revealing structure of the measure at issue 
considered in its relevant context."4 
4. As Japan  understands it, Indonesia is not arguing that the domestic processing requirement 
was repealed by MEMR Regulation 11/2019.  Indeed, MEMR Reg ulation 11/2019 makes no mention 
of repealing the legal instruments underlying the domestic processing requirement. The domestic 
processing requirement appears, therefore, to remain in force.   
5. Rather , Indonesia's argument is that the domestic processing r equirement has no effect on 
international trade because of a separate measure – i.e., the export ban on nickel ore , regardless of 
concentration . Indonesia's argument thus requires the Panel to assess the domestic processing 
requirement in light of its actu al trade effect. However, as explained, the assessment under 
Article  XI:1 should consider the "design, architecture, and revealing structure of the measure".   
6. In this case, the design, structure and architecture of the domestic processing requirement is 
such that all nickel ore mined in Indonesia must be processed in Indonesia. As a result of the 
domestic processing requirement, unprocessed nickel ore cannot lawfully be exported from 
Indonesia. Therefore, under Article XI:1, the design, structure and archi tecture of the domestic 
processing requirement reveal that the measure serves to restrict the quantities of unprocessed 
nickel ore that may be exported. Hence, the evidence on the design, architecture, and revealing 
structure of the measure is sufficient t o make a prima facie  case that the domestic processing 
requirement is an export prohibition of unprocessed ores under Article XI:1 of the GATT 1994.  
 
1 Indonesia's first written submission, para. 64.  
2 Ibid. para. 80.  
3 Ibid. para. 82.  
4 Appellate Body Report , Argentina – Import Measures , para. 5.217 . WT/DS592/R/Add.1  
 
- 60 - 
 
  7. Moreover , because both measures exist independently, it is possible that the domestic 
processing requiremen t would remain in effect if the export prohibition were to be revoked. The fact 
that two measures may simultaneously restrict or prohibit exportation of the same set of goods 
should not prevent the Panel from reviewing the WTO -consistency of each measure t o secure a 
positive solution to the dispute . 
A. Application of Article III:4  
 
8. Indonesia further argues that, to the extent that domestic producers are subject to the 
domestic processing requirement, the measure would be "a law, regulation or requirement af fecting 
the internal sale of nickel ore subject to Article III:4 of the GATT 1994, rather than an export 
restriction within the meaning of Article XI:1 thereof."5 
9. Japan notes that Article XI:1 applies to restrictions maintained "on … the exportation" of 
goods.  In contrast, Article III:4 of the GATT 1994 provides that "[t]he products of the territory of 
any [Member] imported into the territory of any other [Member] shall be accorded treatment no less 
favourable than that accorded to like products of national origin in respect of all [measures] affecting 
their internal sale …".  Because the European Union does not allege differential treatment between 
products importe d into Indonesia and those of national origin, Article III:4 of the GATT 1994 is not 
relevant for purposes of this dispute.  
10. In any case, the domestic processing requirement is a measure that applies on the exportation 
of unprocessed nickel ore, as opposed to a measure affecting the internal sale of the product.  This 
is evident from the text of the underlying measures. For example, Article 17(1) of Regulation 
25/2018 expressly makes the right to "conduct[] export activities" conditional on operators 
underta king certain processing or refining activities in Indonesia, and Article 17(2) makes the right 
to sell "overseas" (i.e., for exportation) conditional on the Minister stipulating certain minimum 
processing or refining thresholds. Further, Article 66 of Regu lation 7/2020 conditions the sale 
"abroad" (i.e., for exportation) to "carrying out processing and/or refineries domestically".  
Therefore, the plain language of the legal instruments underlying the domestic processing 
requirement makes it clear that the r equirement applies to the exportation or sale for export of a 
product and thus it falls within the scope of Article XI:1 of the GATT 1994.  
I. ARTICLE XI:2(a) OF THE GATT 1994  
 
11. Indonesia  argues that its prohibition on the exportation of nickel ore and its domestic 
processing requirement, as applied to unprocessed nickel ore, are justified under Article XI:2(a) of 
the GATT 1994.  
12. Article  XI:2(a) of the GATT 1994 provides that Article XI:1 o f the GATT 1994 "shall not extend 
to": 
Export prohibitions or restrictions temporarily applied to prevent or relieve critical shortages of 
foodstuffs or other products essential to the exporting contracting party.  
13. Article XI:2(a) of the GATT 1994 provides an exclusion from the obligation under Article XI:1 
of the GATT 1994, and the burden of proof is on the respondent to demonstrate that the conditions 
of Article XI:2(a) are met.6 
A. "Temporarily Applied"  
 
14. Article XI:2(a) of the GATT 1994 requires that the  export prohibition or restriction be 
"temporarily applied".  In China – Raw Materials , the Appellate Body determined that "temporarily" 
in this context means that the measure must be "applied for a limited duration, adopted in order to 
bridge a passing ne ed, irrespective of whether or not the temporal scope of the measure is fixed in 
 
5 Indonesia's first written submission, para. 83.  
6 Panel Reports , China – Raw Materials , para. 7.213 . WT/DS592/R/Add.1  
 
- 61 - 
 
  advance."7  As the Appellate Body further noted, "Article XI:2(a) refers to measures that are applied 
in the interim".8 
15. To determine whether Indonesia's measures are "tempor arily applied", the Panel may 
consider, inter alia , whether (i) the relevant laws and regulations implementing the measure indicate 
that the measure is temporary and (ii) whether the measure is designed to "bridge a passing need."  
16. Although a time limit nee d not be fixed in advance for a measure to be considered temporarily 
applied9, language in the laws and regulations implementing a measure that indicates an intended 
termination of the measure can help clarify whether or not a measure is temporary.  At th e same 
time, where a measure is frequently paused and reinitiated, this may indicate that the measure is 
really intended to be permanent, subject to periodic exceptions.  
17. Indonesia argues that the measures were designed to "bridge a passing need". However, 
Indonesia also contends that: "[t]he measures at issue in this dispute were adopted to prevent 
crucial deficiencies in nickel quantities from arising in a near future"10;  in the early 2000s, the 
"expansion of Chinese industry, and in particular stainless steel manufacturing, led to an exponential 
increase in global nickel demand"11; "electric vehicles and battery storage are set to take over from 
stainless steel as the largest end user of nickel by 2040"; and, "demand for nickel will grow between 
20-25 tim es by 2040."12 Furthermore, Indonesia specifically argues under Article XX(d) of the 
GATT  1994 that the challenged measures are designed to secure compliance with its "sustainable 
mining and mineral resources management" requirements.13 
18. These statements an d arguments suggest that Indonesia is concerned about managing the 
risk of long-term depletion  of nickel, which may not be reasonably characterized as a "passing need".   
19. Japan  further notes that the risk of depletion of exhaustible natural resources is specifically 
addressed in Article XX(g) of the GATT 1994, by providing a justification for a measure with the 
objective of "conservation of exhaustible natural resources". The re ach, function, and requirements 
of Article XX(g) of the GATT 1994 differ from those of Article XI:2(a) of the GATT 1994.14  If 
Article  XI:2(a) were improperly construed to address the same risk of depletion of exhaustible 
natural resources, Article XX(g), with its additional requirement that a measure be "made effective 
in conjunction with restrictions on domestic production or consumption", would be rendered inutile.  
Such an outcome would be contrary to the principle of effectiveness in treaty inte rpretation .15  
20. Japan  does not argue that the risk of a shortage of an exhaustible natural resources can never 
be covered by Article XI:2(a) of the GATT 1994.  Rather, a measure addressing such risk may be 
covered under Article XI:2(a) when the shortage is not of a permanent nature, but rather is one that 
can be eventually relieved. In this regard, the Appellate Body in China – Raw Materials  gave an 
example where the shortage of exhaustible resource may be covered under Article XI:2(a), which is 
when "a natu ral disaster caused a 'critical shortage' of an exhaustible natural resource, which, at 
the same time, constituted a foodstuff or other essential product."16 
A. "To Prevent … Critical Shortages"  
 
21. In addition, measures excluded under Article XI:2(a) of the GATT 1994 must be "applied to 
prevent or relieve critical shortages" of essential products. The Appellate Body in China – Raw 
Materials  found that the term "critical shortage" refers to "those deficiencies in quantity that are 
crucial, that amount to a sit uation of decisive importance, or that reach a vitally important or decisive 
stage, or a turning point."17   
 
7 Appellate Body Reports, China – Raw Materials , para. 331.  
8 Ibid. para. 323.  
9 Ibid. para. 331.  
10 Indonesia's first written submission, para. 107. 
11 Ibid. para. 28.  
12 Ibid. para. 53 (footnotes omitted).  
13 See, for example, Indonesia 's first written submission, para s. 10, 14, 144, and 152 . 
14 See Appellate Body Reports, China – Raw Materials , para. 337.  
15 Appellate Body Report, US – Gasoline , p. 23, DSR 1996:I, p. 3 at 21 . 
16 Appellate Body Reports, China – Raw Materials , para. 337.  
17 Ibid. para. 324.  WT/DS592/R/Add.1  
 
- 62 - 
 
  22. The Appellate Body also agreed with the panel in that case on the following points:  
…if there is no possibility for an existing shortage ever to ce ase to exist, it will not be 
possible to "relieve or prevent" it through an export restriction applied on a temporary 
basis. … [i]f a measure were imposed to address a limited reserve of an exhaustible 
natural resource, such measure would be imposed until the point when the resource is 
fully depleted. … [t]his temporal focus seems consistent with the notion of "critical", 
defined as "of the nature of, or constituting, a crisis".18 
23. Thus, to determine whether an export prohibition or restriction is applied to  "prevent …critical 
shortages",19 a panel should take into account whether the measure is capable of preventing  the 
shortage of the relevant products.  If the shortage is permanent, the export prohibition or restriction, 
which is supposed to be temporary, cannot be applied to "prevent" a "critical shortage" under 
Article  XI:2(a).  
24. In this case, the Panel may wish to examine the following two issues specifically in assessing 
the alleged "critical shortage".  First, Indonesia's measures only prohibit the expor tation  of nickel 
ore.20  Indonesia's measures do not limit the extraction  of nickel ore, nor do they limit the 
consumption  of nickel ore by domestic processors or refiners.  Indeed, Indonesia itself has noted 
that its "domestic capacity will continue to ex pand, placing increased strain on Indonesia's nickel 
reserves",21 and that "Indonesia is implementing a strategic plan to expand EV battery production 
in the short term and needs to secure nickel as an input into processed products (nickel sulphate) 
that i s used in the production of EV batteries."22 Thus, the Panel should consider whether Indonesia 
has demonstrated that, in the absence of limits on extraction or domestic consumption, the 
challenged measures are capable of preventing or relieving the alleged  shortage.   
25. Second and relatedly, the Panel should consider whether Indonesia has provided sufficient 
evidence that its nickel reserves have reached a turning point necessitating the export restriction.  
If so, the Panel should assess whether the "shortag e" is the result of limited reserves or the 
anticipated expansion of Indonesia's installed capacity.23 If it is the latter or such anticipated 
expansion of domestic production capacity constitutes a substantial cause of the shortage, it would 
be doubtful whether the measures at issue can prevent a critical shortage as long as such expansion 
of domestic pro duction capacity continues to be anticipated.  
I.  ARTICLE XX(d) OF THE GATT 1994  
A. Subparagraph (d)  
 
26. For a defense  to succeed under Article XX(d) of the GATT 1994, it must be established that: 
(i) the measure at issue secures compliance with "laws or regulations" that are themselves consistent 
with the GATT 1994; (ii) the measure at issue is "necessary" to secure such  compliance; and (iii) 
the measure at issue meets the requirements set out in the chapeau of Article XX.24 
27. With regard to the "laws or regulations" under Article XX(d), the Appellate Body has stated 
that a "measure can be said 'to secure compliance' with l aws or regulations when its design reveals 
that it secures compliance with specific rules, obligations, or requirements  under such laws or 
regulations" and that "[i]t is important, in this regard, to distinguish between the specific rules, 
obligations, or requirements with respect to which a measure seeks to secure compliance, on the 
one hand, and the objectives of the relevant 'laws or regulations', which may assist in 'elucidating 
 
18 Ibid. para. 324 (citing Panel Reports, China – Raw Materials , para. 7.297).  
19 Indonesia does not argue that the measures at issue are to "relieve" the critical shortage ( See 
Indonesia 's first written submission, title of Section IV.D, paras. 13, 85, 107 and 140 etc.).  
20 Indonesia's export prohibition  applies to the export of nickel ore, regardless of concentration,  while its 
domestic production requirement effectively bans the export of unprocessed nickel ore.  
21 Indonesia 's first written submission, para. 126.  
22 Ibid. para. 138.  
23 See Indonesia 's first written submission, para s. 126-127. 
24 Appellate Body Report, Thailand – Cigarettes (Philippines) , para. 177 . WT/DS592/R/Add.1  
 
- 63 - 
 
  the content of specific rules, obligations, or requirements' of the 'laws o r regulations', on the other 
hand."25  
28. In this regard , Japan notes that the examples of such laws or regulations that are listed in 
Article XX(d), namely, laws and regulations relating to "customs enforcement, the enforcement of 
monopolies…, the protection  of patents, trademarks and copyrights, and the prevention of deceptive 
practices", require specific actions or provide specific obligations, and the "compliance" therewith 
can be specifically examined.  These examples in Article XX(d) suggest that, in pri nciple, the 
provision is contemplating a measure that is necessary to secure compliance with specific 
obligations.  
29. Indonesia  in this case alleges that the challenged measures are designed to secure compliance 
with its sustainable mining and mineral resourc es management requirements. Japan notes that 
Indonesia's first written submission does not clearly identify the specific  law or regulation whose 
compliance is being secured through the export restriction and domestic processing requirement. 
Instead, the ar guments seem to be directed at showing that the challenged measures are necessary 
to comply with WTO -consistent resource -management objectives . As the Appellate Body 
underscored in India – Solar Cells, the "'more precisely' a respondent is able to identify  specific 
rules, obligations, or requirements contained in the relevant 'laws or regulations', the 'more likely' 
it will be able to elucidate how and why the inconsistent measure secures compliance with such 'laws 
or regulations'".  Thus, the Appellate Bod y explained that:  
in assessing whether an instrument constitutes a "law or regulation" within the 
meaning of Article XX(d), a panel should also consider the degree of specificity or 
precision with which the relevant instrument lays down a particular rule o f conduct 
or course of action within the domestic legal system of a Member, as opposed to 
simply providing a legal basis for action that may be consistent with certain 
objectives.26 
 
30. Japan  recognizes that a respondent is not precluded from referring to mul tiple instruments.  
However, " insofar as a respondent seeks to rely on a rule deriving from several instruments or parts 
thereof, it would still bear the burden of establishing that the instruments or the parts that it 
identifies actually set out the alleg ed rule".27 
31. Indonesia describes "two … main pillars" of its comprehensive mining policy implicated by this 
dispute: "the protection of Indonesia's environment through the imposition of sustainable mining 
requirements, and the conservation of natural resour ces through the imposition of mineral resource 
management requirements."28  These "pillars" are not "particular rule[s] of conduct or course[s] of 
action," but are rather general objectives, and therefore are not precise laws or regulations for 
assessment under Article XX(d) of the GATT 1994.  
32. Moreover, when the identified laws and regulations are not precise and thus there is 
insufficient linkage between the measure at issue and such laws and regulations, it may be difficult 
to establish that the measure is  implemented to secure the compliance with  the referred laws and 
regulations. In the current case, to the extent that Indonesia identifies particular rules of conduct or 
courses of action, it is not clear that such rules or courses of action are actually m andated by the 
laws and regulations it references.  For example, Indonesia argues that the export prohibition is 
capable of "securing compliance with Indonesia's sustainable mining and mineral resource 
management insofar as it reduces total Indonesian prod uction and extraction of nickel ore."29  Even 
if the reduction of nickel ore production and extraction could, in theory, constitute a particular rule 
of conduct or course of action, Indonesia does not provide a specific law or regulation that requires 
the reduction of nickel ore production and extraction in Indonesia.  Similarly, Indonesia argues that 
 
25 Appellate Body Report, India – Solar Cells , para. 5.110  (citing Appellate Body Report, Argentina – 
Financial Services , para. 6. 203.) (emphasis original).  
26 Appellate Body Report, India – Solar Cells , para. 5.110 . 
27 Ibid. para. 5.111 . 
28 Indonesia's first written submission, para. 143.  
29 Ibid. para. 177.  WT/DS592/R/Add.1  
 
- 64 - 
 
  the domestic processing requirement "curbs predatory mining practices."30  However, Indonesia 
does not provide a specific law or regulation that defines and regulates "predatory mining practices."  
33. Turning  to "necessity", it is well -established that the assessment of this element of Article 
XX(d) involves a process of weighing and balancing a series of factors, including: the extent to which 
the measure sought to be justified contributes to the reali zation of the end pursued (i.e., securing 
compliance with specific rules, obligations, or requirements under the relevant provisions of "laws 
or regulations" that are not GATT -inconsistent); the relative importance of the societal interest or 
value that th e "law or regulation" is intended to protect; and the trade -restrictiveness of the 
challenged measure.31 Also, in most cases, a comparison between the challenged measure and 
reasonably available alternative measures should then be undertaken.32 
34. With respec t to the first factor, i.e., the measure's contribution, when the laws and regulations 
to be complied with are less specific, it will generally be more difficult to establish the linkage 
between the measure sought to be justified and the laws and regulatio ns.  In such cases, a panel 
must carefully scrutinize the existence and the degree of contribution. To the extent it finds that the 
contribution is vague or that the degree of contribution is low, it should not find that the measure is 
necessary, particula rly when the trade restrictiveness is high, such as in the case of an export 
prohibition.  
35. In regards to the third factor, i.e., the trade -restrictiveness of the measure, an export 
restriction, and in particular an export prohibition, is highly trade -restrictive, as it directly prevents 
the subject domestic goods from being traded to foreign markets and prevents foreign consumers 
from accessing the subject goods produced in the territory of the Member imposing the measure.  
Furthermore, with regard to reaso nably available alternative measures, the Panel may consider 
whether Indonesia's  concerns – about the depletion of ore reserves or predatory mining – can be 
addressed more directly and effectively through non -discriminatory measures, rather than export 
restrictions that are highly trade -restrictive.  
36. Lastly, Japan notes with regard to the second factor, i.e., the importance of the protected 
societal value, that the United States and Ukraine discuss a Member's right to determine the level 
of protection with r espect to the objective pursued in the context of Article XX(d) of the GATT 1994.33  
However, even if a Member considers an objective to be of high societal interest and therefore to 
require a high level of protection, the measure at issue still must be "n ecessary to secure compliance" 
with the laws or regulations. Thus, even in such a case of high importance, if the identified laws and 
regulations are not specific, it may be difficult to establish that the measure is implemented to secure 
compliance with t hem or to establish the existence and the degree of contribution.  Similarly, there 
may also be reasonably available alternative measures, especially if the measures at issue are export 
restrictions that are highly trade -restrictive.  Indeed, there have be en prior cases in which panels 
and the Appellate Body have found that a measure pursues interests of the highest importance, but 
is not "necessary" under Article XX(d).  For example, the Appellate Body in Colombia - Textiles  found 
that, even though the par ties did not dispute that the fight against money laundering was a societal 
interest that could be characterized as "vital and important in the highest degree", the challenged 
measure was not "necessary" to secure compliance with the identified provision o f Colombia's 
criminal code as there was a lack of sufficient clarity regarding the degree of contribution and the 
degree of trade -restrictiveness of the measure.34 
A. Chapeau  
 
37. A measure  justified under Article XX(d) of the GATT 1994 must meet the requirements of the 
chapeau of Article XX. The chapeau provides that measures must not constitute "arbitrary or 
unjustifiable discrimination between countries where the same conditions prevail" or a "disguised 
restriction on international trade."  The analysis of whether discrimination is arbitrary or unjustifiable 
focuses on the cause of the discrimination, or the rationale put forward to explain its existence.  
 
30 Ibid. para. 178.  
31 Appel late Body Report, India – Solar Cells , para. 5.59 . 
32 Ibid. 
33 United States' third party submission, para. 40 and Ukraine's third party submission, para. 27.  
34 Appellate Body Report, Colombia – Textiles , paras. 5.144 -150. WT/DS592/R/Add.1  
 
- 65 - 
 
  Discrimination is arbitrary or un justifiable "when the reasons given for the discrimination 'bear no 
rational connection to the objective' or 'would go against that objective'".35  
38. An export prohibition imposes the regulatory burden entirely on foreign demand , and places  
no regulatory burden on domestic demand.  In the absence of other limitations on domestic demand, 
this differential treatment has no rational relationship with the objective of conserving an exhaustible 
resource, particularly when domestic demand accounts , or will account, for a major part of overall 
demand for the exhaustible resource . This is because domestic demand will continue to drive 
extraction of the resources.  Thus, it would seem difficult to justify under the chapeau an export 
prohibition if it is not paired with appropriate limitations on domestic demand.  In this regard, Japan 
agrees with the United States that "whether or not a measure constitutes a disguised restriction on 
trade must be examined in the context of the trade impacted by the mea sure, beyond just the 
product directly subject to the measure at issue", and the impact of the measure to be examined 
should include the impact on "the consumers and purchasers" (i.e. the demand) of the subject 
product .36
 
35 Appellate Body Report, US – Tuna II (Mexico) (Article. 21.5 - Mexico) , para. 7.316 . 
36 United States' third party submission, para. 31.  WT/DS592/R/Add.1  
 
- 66 - 
 
  ANNEX C -5 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE REPUBLIC OF KOREA  
I. Introduction  
1. The Republic  of Korea ("Korea") welcomes this opportunity to present an executive summary 
of its views as a third party in this dispute between the Republic of Indonesia ("Indonesi a") and the 
European Union ("EU") over Indonesia's measures relating to raw materials.  
II. Article XI:1 of the GATT 1994  
2. In relation to Indonesia 's domestic processing requirement, the EU challenges  that Indonesia 's 
measure constitutes a restriction of exp orts of the raw materials as the obligations imposed through 
the measure are designed to restrict the possibility to export the unpurified and unprocessed raw 
mineral products. Therefore , the EU argues that Indonesia 's measure is inconsistent with Article XI:1 
of the GATT 1994.1 
3. Indonesia maintains  that the EU has failed to make a prima facie  case that the domestic 
processing requirement is inconsistent with Article XI:1 of the GATT 1994. Indonesia points out  that 
the exportation of nickel ore is legally prohibited in the first place  under a separate measure. For 
Indonesia, therefore, the domestic processing requirement only affects the internal sale of nickel 
ore, rather than restricting the export of nickel ore within the meaning of Article XI:1 of the 
GATT  1994. Accordingly, Indonesia argues that the EU has failed to demonstrate that the domestic 
processing requirement places any "limiting effect " on the export of nickel ore.2  
4. Several panels and the Appell ate Body have interpreted the term "prohibitions or restrictions " 
under Article XI:1 of the GATT 1994. In China – Raw Materials , the Appellate Body defined 
"prohibition " as a "legal ban on the trade or importation of a specified commodity " and "restriction " 
as "a thing which restricts someone or something, a limitation on action, a limiting condition or 
regulation, and thus refers generally to something that has a limiting effect ". The Appellate Body 
further observed that Article XI of the GATT 1994 covers those prohibitions and restrictions that 
have a  limiting effect on the quantity or amount of a product being imported or exported.3  
5. In determining "limiting effect " set forth in China – Raw Materials , the Appellate Body held in 
Argentina – Import Measure s that "not every condition or burden placed on importation or 
exportation will be inconsistent with Article XI, but only those that are limiting, that is, those that 
limit the importation or exportation of products. Moreover, this limitation need not be d emonstrated 
by quantifying the effects of the measure at issue; rather, such limiting effect can be demonstrated 
through the design, architecture, and revealing structure of the measure at issue considered in its 
relevant context ".4 
6. The panel in Colombia – Ports of Entry  also considered that an analysis under Article XI:1 of 
the GATT 1994 must be "based on the design of the measure and its potential to adversely affect 
importation, as opposed to a standalone analysis of the actual impact of the measure on trade flows " 
and "to the extent Panama were able to demonstrate a violation of Article XI:1 based on the 
measure 's design, structure, and architecture, the Panel is of the view that it would not be necessary 
to consider trade volumes or a causal link betwe en the measure and its effects on trade volumes ".5  
7. Korea agrees  that in order for a measure to be inconsistent with Article XI:1 of the GATT  1994, 
there need not be a proof that the measure at issue de facto  exerts any quantified or even 
quantifiable limiting impact on exportation or importation. Instead , it is sufficient for a complaining 
 
1 EU's First Written Submission, paras. 50 -52. 
2 Indonesia's First Written Submission, paras. 77 -84. 
3 Appellate Body Report, China – Raw Materials , paras. 319 -320. 
4 Appellate Body Report, Argentina – Import Measures , para. 5.217.  
5 Panel Report, Colombia – Ports of Entry , paras. 7.240 and 7.252.  WT/DS592/R/Add.1  
 
- 67 - 
 
  party to demonstrate that "limiting effect " exists by v irtue of the design, structure, architecture, or 
other relevant construct of the measure at issue.  
8. As such, while t he Panel may base its assessment on a wide -range of relevant evidences such 
as the express language of the legal instrument at issue  or the intended effect  of the measure as 
manifested by the measure 's design, structure, architecture, etc. , among others, it need not consider 
whether or to what extent the measure is adversely affect ing trade flows.  
III. Article XI:2(a) of the GATT 1994  
9. In order for export prohibitions or restrictions to be justified under Article XI:2(a) of the GATT 
1994, such measure s must be proven to meet three requirements, namely (i) to be temporar ily 
applied , (ii) to prevent or relieve critical shortage, and (iii) foodstuffs or other products essential  to 
the exporting Member.  
10. Regarding "critical shortage " of Article XI:2(a), Indonesia argues in its First Written 
Submission that a surge in demand for Indonesian nickel ore has caused a dr amatic expansion of 
extraction and production levels in Indonesia reaching unsustainable levels.  Indonesia explains that 
its reserves of high -grade saprolite ore, the only type of nickel ore with economic value, are expected 
to be depleted in the coming f uture creating concerns of crucial deficiencies.6  
11. First, Korea notes that the Appellate Body in China – Raw Materials  interpreted the term 
"critical shortage " as "those deficiencies in quantity that are crucial, that amount to a situation of 
decisive imp ortance, or that reach a vitally important or decisive stage, or a turning point ".7 
12. The Appellate Body e laborat ed that "critical shortage " under Article XI:2(a) is more narrowly 
circumscribed than those falling within the scope of "short supply " of Articl e XX(j),8 implying that a 
much higher standard is applied in determining "critical shortage " under Article XI:2(a). In this vein, 
Korea submits that the meaning of "short supply " under Article XX(j)  may also offer a threshold 
guidance for the Panel 's exam ination as to  whether the circumstances at issue fall within the scope 
of "critical shortage ". 
13. Second , Korea recalls the finding of the panel in China – Raw Materials , with which the 
Appellate Body did not disagree, that "if there is no possibility for an existing shortage ever to cease 
to exist, it will not be possible to relieve or prevent it through an export restriction applied on a 
temporary basis ".9  Relevantly,  the Appellate Body in China – Raw Materials  proposed an example 
that "Article XI:2(a) measures could be imposed if a natural disaster caused a "critical shortage " of 
an exhaustible natural resource, which, at the same time, constituted a foodstuff or othe r essential 
product ".10 This is understood to mean that a measure could be justified  under  Article XI:2(a) in 
case of an extrinsic and transitory event that affects the supply of a certain product, rather than in 
structural and permanent circumstances.  
14. Indonesia stresses  that its reserves of high -grade saprolite ore are expected to be depleted in 
the coming future. It is worth noting that nickel ore is not a regenerating natural resource that 
recovers over time if left unmined. Therefore, should the reserve s of nickel ore be depleted in the 
coming future, this entails that there may be little possibility for the shortage of nickel ore to cease 
to exist.   It appears that the circumstance at hand is not the one that is extrinsic or transitory, but 
is rather a structural and permanent one.   
IV. Article XX(d) of the GATT 1994  
15. Indonesia claims in its First Written Submission that the measures are necessary to secure 
compliance with WTO -consistent laws or regulations, namely Indonesia 's sustainable mining and 
 
6 Indonesia's First Written Submission, paras. 104 –131. 
7 Appellate Body Report, China – Raw Materials , para. 324.  
8 Appellate Body Report, China – Raw Materials , para. 325.  
9 Panel Report, China – Raw Materials , para. 7.297.  
10 Appellate Body Report, China – Raw Materials , para. 337.  WT/DS592/R/Add.1  
 
- 68 - 
 
  miner al resource management requirements. To that end, Indonesia demonstrates the wide -
reaching adverse impact nickel ore mining has on the environment.11 
16. Indonesia concludes that the measures at issue are necessary in light of the 'weighing and 
balancing ' exercise as held by the Appellate Body in India – Solar Cells,12 as the interests or values 
concerned are of the highest importance, and the measures make a material contribution to securing 
compliance with Indonesia 's laws and regulations.13 
17. Certainly, Indone sia's arguments must be duly considered by the Panel. At the same time, the 
Panel should also give full consideration to the degree of trade -restrictiveness of the measures at 
issue in the context of  conducting 'weighing and balancing ' exercise under Article XX(d) of the GATT 
1994.  
18. In this regard, the Appellate Body in Korea – Various Measures on Beef  considered  that "a 
measure with a relatively slight impact upon imported products might more easily be considered as 
'necessary ' than a measure with intense or broader restrictive effects ".14 The Appellate Body also 
affirmed that  "a determination of whether a measure, which is not indispensable, may nevertheless 
be 'necessary ' within the contemplation of Article XX(d), involves in every case a process of weighing 
and balancing a series of factors which prominently include … the ac companying impact of the law 
or regulation on imports or exports ".15 
19. In Korea 's view, a comparative analysis needs to be undertaken between the measure at issue 
and its reasonably available alternatives in order to satisfy the Appellate Body 's standard. A relevant 
consideration for the Panel, therefore, should be whether less restrictive  alternatives  that could 
achieve the same or similar goal were reasonably available  for Indonesia.  
20. Next, i n relation to the chapeau of Article XX, which stipulates that "measures are not applied 
in a manner which would constitute a means of arbitrary or unjustifiable discrimination between 
countries where the same conditions prevail ", Indonesia claims that the measures at issue are 
consistent with the requirements of the pro vision as they do not distinguish between Indonesia 's 
trading partners and apply with equal force regardless of the country at issue.16 
21. It is relevant to recall the finding of the Appellate Body in US – Shrimp  that "discrimination 
could occur not only betw een different exporting Members, but also between exporting Members 
and the importing Member concerned ".17  That is, the principle of even -handedness applies not only 
to and among Indonesia 's trading partners, but also between Indonesia and its trading partners.  
22.   In this regard, Korea respectfully requests the Panel to consider whether the measures at 
issue h ave any discriminating effect between all the Members concerned.  
V. Conclusion  
23. Korea thanks the Panel for providing an opportunity to comment on the issues raised in this 
proceeding.
 
11 Indonesia's First Written Submission, paras. 195 -205. 
12 Appellate Body Report, India – Solar Cells , para. 5.59.  
13 Indonesia's First Written Submission, paras. 174 -187. 
14 Appellate Body Report, Korea – Various Measures on Beef , para. 163.  
15 Appellate Body Report, Korea – Various Measures on Beef , para. 164.  
16 Indonesia's First Written Submi ssion, paras. 224 -228. 
17 Appellate Body Report, US - Shrimp , para. 150.  WT/DS592/R/Add.1  
 
- 69 - 
 
  ANNEX C -6 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS  OF UKRAINE* 
1. Dear Chair, distinguished Members of the Panel, Ukraine welcomes this opportunity to 
shortly express its views on certain legal aspects in the present dispute.  
2. In its Third Party Written Submission Ukraine has already provided some views and will not 
repeat  them today.  
3. In the ongoing dispute the European Union challenges introduced by the Indonesian 
authorities prohibition on export of nickel as well as domestic processing requirements in 
Indonesia and argues that they are inconsistent with Ar ticle XI:1 of the GATT 1994.1  
4. Indonesia in its turn justifies its actions and appeals to Article XI:2(a) and Article XX(d) of 
the GATT  1994.  
5. Indonesia stated that the measures at issue legally prohibits the exportation of nickel ore 
and the European Union has failed to make a prima facie  case that the domestic processing 
requirement is inconsistent with Article XI:1 of the GATT 1994 because it has not 
demonstrated that measures have a limiting effect on nickel ore trade.2  
6. In Argentina – Import Measures , the Appellate Body explained that, in the context of 
Article  XI:1 of the GATT 1994, the limitation on the importation or exportation "need not  
be demonstrated by quantifying the effects of the measure at issue; rather, such limiting 
effects can be demonstrated through the design, architecture, and revealing structure of 
the measure at issue considered in its relevant context. "3 
7. At the same time  in another case China - Raw Materials , the Appellate Body held that 
Article  XI:1 covers "those prohibitions and restrictions that have a limiting effect on the 
quantity or amount of a product being imported or exported. "4 
8. Therefore, in this dispute Panel should consider whether the complainant  prove d any of its 
claims in relation to the alleged violation of Article XI:1 of the GATT  and present ed a prima 
facie case  that the measures are not justified  in terms of limiting effect on the quantity  or 
amount of a product being imported or exported or the complainant clearly demonstrated 
limiting effect through the design, architecture, and revealing structure of the measure at 
issue.  
9. Another issue the Panel faced is whether Indonesia has demonstrate d that the export 
prohibition on nickel ore and domestic processing requirement are temporarily applied to 
prevent critical shortage of nickel, a product that is essential to Indonesia.  
10. Alternatively, in case the Panel were to conclude that the measures at  issue are not justified 
under Article XI:2(a) of the GATT 1994, Indonesia then argues that such measures are 
justified under Article XX(d) of the GATT 1994, as measures necessary to secure compliance 
with WTO -consistent laws or regulations.  
11. Ukraine won’t  repeat its Third Party Written Submission but would like to provide comments 
regarding the issue of specific rules, obligations, or requirements with respect to which the 
measures at issue seek to secure compliance.  
12. In order to conclude whether measures at issue are necessary to secure compliance with 
WTO-consistent laws or regulations the Panel should examine  whether Indonesia has 
 
* Ukraine requested that its oral statement serves as its executive summary.  
1 EU's First Written Submission, para 2.  
2 Indonesia 's First Written Submission, para. 12.  
3 Appellate Body Reports, Argentina – Import Measures , para. 5.217.  
4 Appellate Body Report, China - Raw Materials , para. 320 . WT/DS592/R/Add.1  
 
- 70 - 
 
  explained the relevant specific rules, obligations, or requirements with respect to which the 
measures at issue seek to secur e compliance.  
13. Indonesia asserts that it "has adopted a comprehensive policy framework to regulate 
mining activities. Such comprehensive policy imposes a number of obligations on both 
regulators and economic operators, in order to ensure that the exploitation of Indonesia’s 
mineral resources are conducted on the basis of good mining practices " and provided a 
brief description of the relevant elements of the above policy.  
14. As Indonesia stated its comprehensive policy comprises a multiplicity of laws  and 
regulations dealing with the protection of the environment, conservation of natural 
resources, worker health and safety, mining operations safety, waste management, among 
others.  
15. In this regard Ukraine reiterates that each country has its right to establish and regulate 
its own levels of domestic environmental protection with respect to objectives pursued and 
it can be reflected not in one separate regulation but as a complex polic y. Therefore, while 
examining specific rules, obligations, or requirements with respect to which the measures 
at issue seek to secure compliance it is also important to take into account the 
comprehensive policy as a whole.  
16. Ukraine hopes its considerations  set out above will help the Panel when evaluating the 
claims set forth in this dispute.  WT/DS592/R/Add.1  
 
- 71 - 
 
  ANNEX C -7 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE UNITED KINGDOM  
1. An integrated executive summary of the United Kingdom's third party  submission, statement 
and responses to certain Panel questions is provided below.  
I. Article XI:1 GATT  
2. Article XI:1 has been interpreted to cover "those prohibitions and restrictions that have a 
limiting effect on the quantity or amount of a product b eing imported or exported ". Previous case 
law has found that this limiting effect "need not be demonstrated by quantifying the effects of the 
measure at issue; rather, such limiting effects can be demonstrated through the design, architecture, 
and revealin g structure of the measure at issue considered in its relevant context ".1  
3. As to the relationship between the two challenged measures, the United Kingdom submits 
that the Panel should assess the WTO -consistency of each of the measures individually. The  fact 
that one measure prevented the application of the second measure should not preclude the Panel 
from assessing the compatibility of the latter with the GATT.  
II. Article XI:2(a) GATT  
4. Article XI:2(a) exempts "export prohibitions or restrictions temp orarily applied to prevent or 
relieve critical shortages of foodstuffs or other products essential to the exporting Member " from the 
general prohibition on quantitative restrictions contained in Article XI:1.  
5. "Temporarily Applied ". The Appellate Body has interpreted "temporarily applied " to mean 
a "measure applied in the interim, to provide relief in extraordinary conditio ns in order to bridge a 
passing need. It must be finite, that is, applied for a limited time. [It] must be of a limited duration 
and not indefinite ".2  
6. The United Kingdom submits that an export restriction applied to an exhaustible resource 
that is int ended to be maintained until the reserves of that resource have been depleted cannot be 
said to be "temporarily applied ", nor can it be said to be applied to "prevent or relieve a critical 
shortage ". 
7. "Critical Shortage ". The Appellate Body has interpret ed "critical shortage " to mean "those 
deficiencies in quantity that are crucial, that amount to a situation of decisive importance, or that 
reach a vitally important or decisive stage, or turning point ". The term "shortage " "is qualified by 
the adjective 'critical ', which, in turn, is defined as '[o]f, pertaining to, or constituting a crisis; of 
decisive importance, crucial; involving risk or suspense '".3 The United Kingdom observes that a 
proposal to remove the term "critical " from the original draft of t he GATT was rejected by the 
drafters.  
8. In response to Panel Question 3, the United Kingdom notes that Article XI:2 does not 
prescribe the cause of the "critical shortage " and therefore, it is not necessary to demonstrate, for 
example, that the critical s hortage was caused by an exceptional and temporary exogenous event. 
However, the meaning of each element of Article XI:2(a) is informed by each of the other elements 
of the provision. The cause of the critical shortage may therefore be relevant when assess ing 
whether the measure is being applied to "prevent or relieve " that shortage. The United Kingdom 
submits that it may be difficult to demonstrate that a measure is applied to "prevent or relieve " a 
critical shortage if the shortage is in fact caused or exacerbated by expanding extraction and 
production capacity within the Member 's domestic market.  
9. "Essential ". The Appellate Body has interpreted the term "essential " to mean products that 
are "absolutely indispensable or necessary " to the exporting Member. Furthermore, in China - Raw 
 
1 Appellate Body Reports, Argentina – Import Measures , para. 5.217.  
2 Appellate Body Report, China - Raw Materials , para. 330.  
3 Appellate Body Report,  China - Raw Materials , para. 324.  WT/DS592/R/Add.1  
 
- 72 - 
 
  Materials , the Panel found that "essential " products "may include a product that is an 'input' to an 
important product or industry ". However, it reiterated that this assessment "must take into 
consideration the particular circumstances faced by that Member at the time that a Member applied 
the restriction. "4 The United Kingdom submits that access to domestic supplies of input products is 
not, in and of itself, "essential " to the development of a domestic industry.  
III. Article XX(d) GATT  
10. Meaning of "laws or regulations ". The United Kingdom notes that text  of Article XX(d) 
refers to "laws or regulations " in respect of which "compliance " can be "secure[d] ". As to the term 
"secure ", in India – Solar Cells the Appellate Body found that a measure can be said to secure 
compliance "with 'laws or regulations ' when it seeks to secure observance of specific rules , even if 
the measure cannot be guaranteed to achieve such result with absolute certainty ": the "'more 
precisely ' a respondent is able to identify specific rules, obligations, or requirements contained in 
the relevant 'laws or regulations ', the 'more likely it will be able to elucidate how and why the 
inconsistent measure secures compliance with such 'laws or regulations '".5 
11. The Appellate Body also held that the "laws or regulations " must be ones with which 
"compliance " is possible and consequently, a panel should consider the degree to which an 
instrument containing the alleged rule is normative in nat ure, including its enforceability and the 
existence of any penalties and sanctions.  
12. It follows that a measure can be said "to secure compliance " with "laws or regulations " when 
its design reveals that it secures compliance with specific rules, obligat ions, or requirements  under 
such laws or regulations. The Appellate Body distinguished between the "specific rules, obligations 
or requirements " contained within the "laws or regulations " and the objectives of the "laws or 
regulations ", and held that panel s should consider the degree of specificity or precision with which 
the relevant instrument lays down a particular rule of conduct or course of action within the domestic 
legal system of a Member, as opposed to simply providing a legal basis for action tha t may be 
consistent with certain objectives.  
13. The Appellate Body concluded by setting out a non -exhaustive list of criteria that panels may 
consider when considering whether the respondent has identified a rule, or rules, that fall within the 
scope of "laws or regulations ", including but not limited to, the degree of normativity of the 
instrument and the degree of specificity of the relevant rule.  
14. Finally, the United Kingdom submits that there are systemic reasons for avoiding an 
expansive interpretation of "laws or regulations ". If otherwise GATT -inconsistent measures could be 
justified by reference to aspirational objectives or broad policy goals, it would disturb the balance 
between trade liberalisation and the right to regulate enshrined in Article XX.
 
4 Panel Report, China - Raw Materials , para. 7.282 (emphasis added).  
5 Appellate Body Report, India – Solar Cells , para. 5.108.  WT/DS592/R/Add.1  
 
- 73 - 
 
  ANNEX C -8 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE UNITED STATES  
EXECUTIVE SUMMARY OF THE U.S.  THIRD PARTY SUBMISSION  
I. INTERPRETATION OF ARTICLE XI:1 OF THE GATT 1994  
1. The European Union claims that the export prohibition of nickel ore (implemented by MEMR 
Regulation 11/2019 and MOT Regulation 96/2019), and the domestic processing requirement on 
nickel ore and iron ore  (implemented by MEMR Regulation 25/2018) are inconsistent with Article 
XI:1 of the GATT 1994 .  Article XI:1 by its express terms sets out that a Member shall not institute 
or maintain any "prohibitions" on "the exportation or sale for export of any product destined for the 
territory of any other [Member]." The ordinary meaning of the term "prohibit ions" in Article XI:1, in 
its context, is a "legal ban on the trade or importation of a specified commodity".  
2. Similarly, Article XI:1 by its express terms sets out that a Member shall not institute or 
maintain any "restrictions " on "the exportation or sale for export of any product destined for the 
territory of any other [Member]. " The pertinent definition of "restriction " in relation to the acts of 
importation or exportation is "a limitation on action, a limiting condition or regulation ". 
3. Further, Article XI:1 applies to any "restriction ", including those "made effective through 
quotas, import or export licenses or other measures ", other than "duties, taxes, or other charges ". 
Accordingly, Article XI:1 bans any measure that prohibits expo rtation or constitutes a limitation on 
action or a limiting condition on exportation, other than duties, taxes or other charges.  
4. Indonesia argues, with respect to the domestic processing requirement, that the European 
Union has not made a prima facie case because the measure does not have any "limiting effect " on 
the exportation of nickel ore since the exportation "is legally prohibited in the first place " by the 
export ban also at issue.  
5. The text of Article XI:1, however, does not require a showing of actu al trade effects of a 
measure at issue. Rather, the Panel could find a violation of Article XI:1 if the domestic processing 
requirement would constitute a limitation on action or a limiting condition on exports, without a need 
to show that the requirement has caused an actual  decrease in exports.  
6. Moreover, the European Union has challenged the export ban and the domestic processing 
requirement as two separate and independent restrictions on exportation – not as a single measure 
operating in combination. If the Panel agrees these measures operate independently, the Panel 
should evaluate the WTO -consistency of each of the two measures independently. The Panel is not 
precluded from finding a measure to be in breach of Article XI:1 simply because there is anothe r 
measure whose operation may also prohibit or restrict exports  
7. In summary, to the extent that the Panel finds that either of Indonesia 's measures acts as 
a legal ban on exportation or constitutes a limitation on action or a limiting condition on exportation  
– and do not constitute "duties, taxes, or other charges " within the meaning  of Article XI:1 of the 
GATT 1994 – the measures would be inconsistent with Article XI:1.  
II. INTERPRETATION OF ARTICLE XI:2(a) of the GATT 1994  
8. Indonesia argues that t he measures at issue are justified under Article XI:2(a) of the 
GATT  1994 because they are "temporarily applied to prevent a critical shortage " of nickel, which is 
"a product that is essential to Indonesia. " 
9. Article XI:2(a) of the GATT 1994 provides that A rticle XI:1 "shall not extend to . . . export 
prohibitions or restrictions temporarily applied to prevent or relieve critical shortages of foodstuffs 
or other products essential to the exporting [WTO Member] ". Therefore, the party invoking Article 
XI:2(a) must demonstrate three things: that the export prohibition or restriction at issue is (1) WT/DS592/R/Add.1  
 
- 74 - 
 
  "temporarily applied "; (2) that it is applied "to prevent or relieve critical shortages of [a product] "; 
and (3) that the product is "essential to " the responding Mem ber. 
10. First, one of the requirements of Article XI:2(a) is that the measure is "temporarily applied ".  
The dictionary definition of "temporarily " is "for a time (only); during a limited time ". Accordingly, 
the requirement means that the measures at issue should have defined and limited time parameters, 
at the very least. The United States notes that the measures at issue do not themselves appear to 
specify when they would cease to be in effect, or otherwise indicate that they are being applied for 
a time only or during a limited time.  
11. The second requirement of Article XI:2(a) is that the restriction at issue apply to "prevent 
or relieve critical shortages " of a product.  Indonesia argues that the measures are applied to prevent 
a critical shortage of nickel ore, which was anticipated because "the surge in demand for Indonesian 
nickel ore has caused a dramatic expansion of extraction and production levels in Indonesia ". The 
United States notes that the evidence Indonesia has submitted to show a "critica l shortage " appears 
to indicate that the anticipated shortage would have, at least in part, resulted from the increase in 
nickel ore processing capacity within Indonesia. For example, Indonesia states that "[i]n the next 
few years, domestic processing capa city will continue to expand, placing increased strain on 
Indonesia 's nickel reserves. "  In assessing Indonesia 's "critical shortage " argument, the Panel should 
take into account whether any "critical shortage " is the result of the creation of increased pr ocessing 
capacity within Indonesia 's own territory. Moreover, given that Indonesia considers its processing 
capacity will continue to expand, and processing capacity once introduced would generate demand 
commensurate with that expanded capacity, it is uncl ear how an export restriction would be applied 
for a limited time. Expanded capacity and resulting demand would rather suggest the measures 
would be applied for an unlimited time.  
12. Third, Article XI:2(a) also requires that the restriction at issue apply to "foodstuffs or other 
products essential to the exporting [Member] ". The dictionary definition of "essential " is "absolutely 
indispensable or necessary ". In addition, the inclusion of "foodstuffs " in Article XI:2(a) is important 
context for conveying the le vel of importance of the product that is contemplated by this provision.  
Therefore, the Panel should examine whether Indonesia has shown that nickel arises to the level of 
importance that makes it absolutely indispensable or necessary to Indonesia.  
13. In sum mary, the  Panel should only find that Indonesia has shown that its measures fall 
under Article XI:2(a) if Indonesia has demonstrated that the measures are "temporarily applied to 
prevent . . . critical shortages of " nickel, and that it is a product "essent ial to" Indonesia.  
III. INTERPRETATION OF ARTICLE XX (D) OF THE GATT 1994  
14. Indonesia also argues that the measures at issue are justified under Article XX(d) of the 
GATT  1994 because they are "measures necessary to secure compliance with WTO-consistent laws 
or regulations " – namely Indonesia 's "comprehensive policy framework for mining activities, in 
particular sustainable mining and mineral resource management requirements. " 
15. To establish that a measure is justified under Article XX(d), th e respondent must 
demonstrate that: (1) the measure is applied consistently with the chapeau of Article XX; (2) the 
measure was adopted or enforced to pursue the objective covered by the subparagraph, i.e., to 
"secure[] compliance with 'laws or regulations ' that are themselves consistent with the GATT 1994 "; 
and (3) the measure must be "necessary " to the achievement of that objective, i.e., to secure such 
compliance.   
A.  Whether the Measures Meet the Requirements Set Out in the Chapeau of 
Article  XX 
16. Pursuant to the chapeau of Article XX, the party invoking Article XX has the burden of 
showing (1) that any measure purportedly justified under an Article XX subparagraph does not 
discriminate "between countries where the same conditions prevail "; (2) that  such discrimination is 
not "arbitrary or unjustifiable "; and (3) that the measure is not a "disguised restriction on 
international trade ". WT/DS592/R/Add.1  
 
- 75 - 
 
  17. Indonesia argues that the measures at issue are applied in a manner that is consistent with 
the requirements in the chapeau of Article XX because they "do not reflect any discrimination " since 
they do not "distinguish between Indonesia 's trading partners "; and because the measures do not 
"confer[] any direct or indirect protection to Indonesian nickel producers ", but in stead "disadvantage 
domestic mining companies by restricting their ability to compete in foreign markets. " However, the 
discrimination referred to in the chapeau is not limited to distinguishing between trading partners 
only, but also includes discriminati on between Indonesian and foreign producers and other entities. 
Second, that a measure operates to the disadvantage of domestic producers does not mean it cannot 
be inconsistent with the chapeau. To the contrary, by (in Indonesia 's words) "restricting thei r ability 
to compete in foreign markets " the measure may serve as a (not very well) disguised restriction on 
trade.  
18. Third, and more important in the context of this dispute, Indonesia 's measures not only 
prohibit the exportation of nickel ore and restrict the exportation of nickel through conditions on 
processing, but also affect the consumers and purchasers of nickel that may operate in other 
industries. The Panel 's examination of whether the measures constitute a disguised restriction on 
international tra de is not limited to the measures ' impact on nickel trade or to nickel producers only, 
but should include impact on international trade as a whole. For instance, nickel is an essential 
component in most stainless steel, and also comprises more than 50 percent of the price for stainless 
steel. Indonesia is the largest producer of nickel in the world, and therefore any measures impacting 
the processing and exportation of nickel, such as those at issue in this dispute, will also have 
repercussions on the production and trade of stainless steel  globally. In assessing Indonesia 's 
measures under the chapeau, this impact also must be considered.  
B. Whether the Measures are Necessary to Secure Compliance with 
GATT -Consistent Laws or Regulations  
19. Under subparagraph (d) of Article XX, Indonesia must sh ow that (1) the measure was 
adopted or enforced to "secure[] compliance with 'laws or regulations ' that are themselves consistent 
with the GATT 1994 "; and (2) the measures are "necessary " to secure such compliance.  
20. The first element requires an initial, t hreshold examination of the relationship between the 
challenged measures and the "laws or regulations " that are not WTO -inconsistent. Indonesia must 
identify what constitutes "compliance " with its identified laws and regulations and explain how the 
challen ged measures "secure " such compliance. Understanding which aspect(s) of the "laws and 
regulations " is implicated will allow the Panel to assess whether those laws and regulations are in 
fact WTO -inconsistent. Once that has been established, the Panel must assess how the challenged 
measures secure compliance with the identified laws or regulations. To the extent that Indonesia 's 
arguments relate to how the challenged measures support the general objectives of sustainability 
and conservation, rather than comp liance with the specific laws and regulations identified by 
Indonesia, those arguments might support a defense, not under Article XX(d), but under Article 
XX(g) – a defense Indonesia has not raised in this dispute.  
21. With respect to "necessity ", the Panel mu st continue its examination of the relationship 
between the measures and the objective at issue – in this case determining whether the challenged 
measures are "necessary " to securing compliance with Indonesia 's identified "laws or regulations ". 
A panel assessing the "necessity " of a measure may look at several factors, including "the extent to 
which the measure sought to be justified contributes to the realization of the end pursued " and "the 
trade -restrictiveness of the challenged measure ". This review would include whether any alternative 
measures exist "that achieve an equivalent level of protection while being less trade restrictive " than 
the challenged measure.  
22. Indonesia, while acknowledging that the measures at issue are trade -restrictive,  asserts that 
the societal values protected by the Indonesian mining and mineral resource management laws and 
regulations ( i.e., environmental protection and conservation) are "values of the highest importance "; 
and the measures, "as part of a comprehensiv e policy, are apt to make a material contribution to 
securing compliance with Indonesia 's sustainable mining and mineral resource management 
requirements. " Indonesia further asserts that it is incumbent upon the European Union as the 
complaining Member to propose alternative measures that are reasonably available to Indonesia and 
are less trade restrictive while at the same time "'preserving for [Indonesia] its right to achieve its 
desired level of protection with respect to the objective pursued. '"  Additi onally, Indonesia notes that WT/DS592/R/Add.1  
 
- 76 - 
 
  no available remedial measures would be able to "make an equivalent contribution to the 
enforcement of Indonesia 's sustainable mining and mineral resource management requirements. " 
23. The United States agrees that responding Membe rs maintain the right to determine their 
own level of protection with respect to objectives pursued, and that it rests on the European Union 
to propose reasonably available, less trade -restrictive alternatives for achieving an equivalent level 
of protectio n.  However, this burden on the European Union does not relieve Indonesia of its own 
burden of demonstrating that the measures at issue are in fact necessary to the objective of securing 
compliance with its identified laws or regulations.   
EXECUTIVE SUMMARY OF THE U.S.  RESPONSES TO PANEL QUESTIONS TO THIRD PARTIES  
24. Response to Question 1 : In this dispute, the European Union has asserted that the domestic 
processing requirement is inconsistent with Article XI:1 because it establishes an indepe ndent 
restriction on exportation because the holders of a mining business license may not "conduct[] 
export activities " without satisfying certain processing conditions. T he European Union has 
challenged the export ban and the domestic processing requirement as two individual measures and 
not as a single measure operating in combination. The fact that two separate measures are in force 
and apply to a product at the same time d oes not make them a single measure for purposes of the 
Panel 's analysis. Furthermore, t he Panel is not precluded from finding a measure to be in breach of 
Article XI:1 simply because there is another measure whose operation may also prohibit or restrict 
exports.  
25. Response to Question 2 :  Based on the dictionary definition of "temporarily, " which is "for a 
time (only); during a limited time ", the Panel should consider whether a measure has defined and 
limited time parameters, or otherwise indicates that it is  being applied for a time only or during a 
limited time.  Moreover, the phrase "temporarily applied " in Article XI:2(a) is linked to the following 
phrase "to prevent or relieve critical shortages ", which indicates the application of the measure 
should be l imited to the time a Member is pursuing those goals through the export prohibition or 
restriction. As part of the analysis, the Panel should take into account whether any "critical shortage " 
is the result of the creation of increased processing capacity wi thin the respondent Member 's 
territory. For instance, given that Indonesia considers its nickel ore processing capacity will continue 
to expand, and processing capacity once introduced would generate demand commensurate with 
that expanded capacity, the Pan el may find that Indonesia 's export restrictions applied to prevent 
or relieve a critical shortage of nickel ore are, in fact, unlikely to be applied for a limited time  
26. Response to Question 3 :  Nothing in the text of Article XI:2(a) suggests that a "critical 
shortage " within the meaning of Article XI:2(a) must stem from an "exceptional and temporary 
exogenous event " or exclude "a definitive and unavoidable outcome. " While the text of Article 
XI:2(a) does not specifically exclude critical shortages stemming from any particular causes, the 
text does require that any measures taken to address them be "temporarily applied. " In the present 
dispute, given that Indonesia considers its processing capacity will continue to expand, and 
processing capacity once introdu ced would generate demand commensurate with that expanded 
capacity, it is unclear how the challenged measures could be seen as applying for a limited time.  
27. Response to Question 4 :  In an Article XI:2(a) analysis, the Panel must examine, on a case 
by case basis, whether the respondent Member has shown that the product at issue is "essential " 
within the meaning of Article XI:2(a) – i.e., that it is absolutely indispensable or necess ary to the 
Member.  In the course of the examination, the fact that a product is one of the input products for 
an industry which the Member desires to develop can be a supporting factor for the product 's 
"essentialness " to the Member. The term "essential " should only cover those products that are 
"essential " within the meaning of Article XI:2(a). The inclusion of "foodstuffs " in Article XI:2(a) 
conveys the level of importance of the product that is contemplated by the provision.  
28. Response to Question 5 :  A s eries of export restrictions that apply for extended periods of 
time with some small breaks would appear not in fact to be "temporarily applied " within the meaning 
of Article XI:2(a). Were a Member allowed to avoid its obligations under Article XI:1 simply  by 
operationalizing an otherwise long -term export restriction through a series of formally "temporary " 
measures, the narrow exception provided for in Article XI:2(a) would render the substantive 
obligation in Article XI:1 meaningless.  WT/DS592/R/Add.1  
 
- 77 - 
 
  29. Response to Question  6:  Nothing in the text of Article XX suggests that an Article XX analysis 
must begin with an examination under one or more Article XX subparagraphs and then proceed to 
an examination of consistency with the chapeau . The chapeau and the subparagraphs are two 
independent but related requirements, both of which must be satisfied for a measure to be found 
justified under Article XX.  
30. Response to Question 7 :  The text of Article XX(d) requires an initial, threshold examination 
of the relationship between the ch allenged measures and the "laws or regulations " that are not WTO -
inconsistent.  The Panel must assess how the challenged measures secure compliance with the 
identified "laws or regulations ".  Accordingly, the respondent Member must identify what constitute s 
"compliance " with its identified laws or regulations and explain how the challenged measures 
"secure " such compliance. It may be difficult to demonstrate the requisite relationship between the 
identified laws or regulations and the challenged measures if the identified laws or regulations merely 
lay out broad policy goals without requiring specific action s because it would be less clear what 
constitutes compliance with such laws or regulations.  
31. Response to Question 8 :  An argument that the challenged measure is "apt to produce a 
material contribution " toward securing compliance with the underlying laws or regulations may not, 
on its own, establish that the measure is in fact "necessary " within the meaning of Article XX(d). 
The dictionary definition of "necessary " is "indispensable, vital, essential; requisite ". Therefore, the 
Panel should examine whether th e respondent Member has shown that the challenged measures are 
indispensable, vital, essential, and requisite for the objective of securing compliance with the 
underlying laws or regulations. If the Panel finds that there is at least one reasonably availab le 
alternative that achieves an equivalent level of protection while being less trade restrictive, that 
would mean that the challenged measure is not in fact indispensable, vital, essential, and requisite 
for achieving the respondent Member 's desired level  of protection  with respect to the objective 
pursued.  
32. Response to Question 9(a) :  The text of Article XX(d) requires that any measure taken 
pursuant to that provision be taken to secure compliance with WTO -consistent "laws or regulations. " 
In that way, the  laws or regulations at issue must have some specificity and identifiability.  
33. Response to Question 9(b) :  Under Article XX(d), the respondent Member must identify what 
constitutes "compliance " with its identified laws or regulations and explain how the ch allenged 
measures "secure " such compliance. If the identified laws or regulations merely lay out aspirational 
or general objectives without any specific requirements – if they do not contain any "normative 
content ", to use the Panel 's language – it would b e difficult to determine what constitutes 
"compliance " with such laws or regulations, and thus less clear how the respondent Member might 
demonstrate the requisite relationship between the identified laws or regulations and the challenged 
measures under Ar ticle XX(d).  
__________  
 