WT/DS371/42  
 
28 October 2020  
(20-7512) Page: 1/2 
  Original: English  
 
 
THAILAND – CUSTOMS AND FISCAL MEASURES ON CIGARETTES  
FROM THE PHILIPPINES  
COMMUNICATION FROM THE PHILIPPINES  
The following communication, dated 26 October 2020 , was received from the delegation of the 
Philippines  with the request that it be circulated to the Dispute Settlement Body (DSB).  
 
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The Philippines sets forth below the content of its intervention at the DSB meeting held on 
26 October  2020 regarding Item 7 of the agenda, Thailand – Customs and Fiscal Measures on 
Cigarettes from the Philippines,  particularly the Philippines ' Recourse to Article 22.2 of the DSU 
(WT/DS371/32).  
1. Thank you, Mr. Chairman for your report. The Philippines reiterates its sincere appreciation 
for the Chair 's ongoing efforts.  
2. Further to o ur statements that were delivered in the past four (4) DSB meetings in June, July, 
August, and September 2020, we thank the Chair and the DSB  Secretariat for the additional 
set of questions sent to us on 30 September 2020, which are aimed at seeking to fu rther 
explore possible pathways to resolving the parties ' differences, concerning the way forward 
with Thailand 's pending Article 21.5 appeals and the Philippines ' request under Article 22 of 
the DSU, to which both parties sent their responses on 21 Octobe r. The Philippines and 
Thailand will also be given the opportunity to comment on each other 's responses by 
28 October, one week from today.  
3. We hope that this supplemental exchange can finally provide the much -needed clarity to allow 
us to move forward with the Philippines ' Article 22.2 request, while protecting Thailand 's right 
to appeal. We trust that the  latest  responses have not only been helpful in confirming our 
respective positions on the issues before us , but also in shedding a bright lig ht on the emerging 
means to resolve the impasse  at hand.  
4. Once again, the Philippines wishes to recall that in the spirit of cooperation and on the Chair 's 
suggestion, we had presented for consideration a non -exhaustive list of alternative 
arrangements, contained in WT/DS371/40 (3 August 2020) that could allow the parties to 
fashion a constructive solution that would permit the completion of Thailand 's appeals, which 
were suspended as a result of the non -functioning Appellate Body. Any such alternative 
arrangements should not in any way prejudice the parallel rights of the Philippines under the 
DSU to seek automatic and mandatory authorization to suspend concessions.  
5. As we have set out in our previous statements under this agenda item, as well as in the  
consultations with the DSB Chair, the Philippines has remained open, ready, and willing to 
engage constructively with Thailand. However, it should also become clearer to the Chair, and 
to the DSB, that Thailand, as the losing party in duly -adopted Panel a nd AB reports, is utterly 
not be able to constructively engage in a solution. We reiterate, therefore, that the burden of 
applying the automatic and mandatory rules -based provisions of the DSU will be the duty and 
responsibility of the DSB.  WT/DS371/42  
 
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  6. At this mee ting of the DSB, therefore, the Philippines once again asks the DSB to grant the 
Philippines the authority it seeks.  
7. Mr. Chairman, the provisions of Article 22.6 of the DSU are clear:  
• "The DSB, upon request, shall  grant authorization to suspend conce ssions or other 
obligations within 30 days of the expiry of the reasonable period of time unless the DSB 
decides by consensus to reject the request "; and  
• "If the Member concerned objects to the level of suspension proposed, […] the matter 
shall  be referr ed to arbitration ". 
8. Therefore, there are only two (2) options under the reverse -consensus rule of DSU 
Article  22.6: (1) the DSB granting authorization to suspend concessions, or (2) the DSB 
referring the matter to arbitration.  
9. Thank you, Mr. Chairman . 
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