WT/DS371/30  
 
11 September 2019  
(19-5849) Page: 1/3 
  Original: English   
 
THAILAND – CUSTOMS A ND FISCAL MEASURES O N CIGARETTES FROM TH E PHILIPPINES  
SECOND RECOURSE TO A RTICLE 21.5 OF THE D SU BY THE PHILIPPINE S  
NOTIFICATION OF AN A PPEAL BY THAILAND UNDER ARTICLES 16.4 AND 17 OF THE 
UNDERSTANDING ON RUL ES AND PROCEDURES GO VERNING THE SETTLEME NT OF  
DISPUTES ("DSU")  AND UNDER RULE 20 OF  THE WORKING PROCEDU RES  
FOR APPELLATE REVIEW  
The following communication, dated 9 September  2019, from the delegation of Thailand , is being 
circulated to Members.  
 
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Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes ( "DSU") and Rule 20 of the Working Procedures for Appellate Review, 
Thailand hereby notifies the Dispute Settl ement Body of its decision to appeal to the Appellate Body 
certain issues of law and legal interpretation covered in the Article 21.5 Panel Report entitled 
Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines ( Second r ecourse to 
Article 21.5 of the DSU by the Philippines)  (WT/DS 371/RW2 and WT/DS371/RW2/Add.1 ), which was 
circulated on 12 July 2019 (the "Panel Report"). Pursuant to Rules 20(1) and 21(1) of the Working 
Procedures for Appellate Review, Thailand is simultaneously filing this  Notice of Appeal and its 
Appellant's Submission with the Appellate Body Secretariat.   
For the reasons to be further elaborated in its submission to the Appellate Body, Thailand appeals , 
and requests the Appellate Body to modify or reverse legal interpretations leading to the legal 
findings and conclusions of the Panel, with respect to the following errors contained in the Panel 
Report.1 
a. Findings regarding the scope and applica bility  of the Customs Valuation Agreement  
The Panel erred in law in its interpretation of Article 15.1(a) of the Agreement on Implementation 
of Article VII of the General Agreement on Tariffs and Trade 1994 (the " CVA"), and of the CVA 
generally,  in finding that th e scope of the CVA covered criminal enforcement matters such as the 
criminal charges filed by the Public Prosecutor against Philip Morris (Thailand) Limited (PMTL)  and 
one of its former employees on 26 January 2017, in respect of 780 entries of cigarettes imported 
over the period 2002 -2003 (the "2002 -2003 Charges")  challenged by the Philippines in this 
proceeding.  In particular, the Panel erred in determining the scope of application of the CVA as going 
beyond the determination of customs value "for the pur pose of levying ad valorem customs duties ".2 
Thailand, therefore, requests the Appellate Body to reverse o set aside the Panel's findings in 
paragraphs 7.252 – 7.337 of the Panel Report.  
The Panel also erred in law in its application of its interpretation of the CVA and, in particular, 
Article  15.1(a) of the CVA to the  2002-2003 Charges to find that this measure was covered by 
the CVA.3 Thailand , therefore, requests the Appellate Body to reverse or set aside the Panel's 
                                                
1 Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for Appellate Review, this Notice of Appeal 
includes an indicative list of the paragraphs of the Panel Report containing the alleged errors, without prejudice 
to Thailand's right to refer to other p aragraphs of the Panel Report in the context of its appeal.  
2 These findings are contained in paragraphs 7.252 – 7.337  of the Panel Report . 
3 These findings are contained in paragraphs 7.252 – 7.337  of the Panel Report.  WT/DS371/30  
 
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  conclusions and the Panel's legal int erpretations contained in paragraphs 7.252 – 7.337 of the Panel 
Report.  
Consequently, Thailand also requests the Appellate Body to declare moot and of no legal effect the 
Panel's conclusions and findings relating to:  
• Article 1.1 and/or Article 1.2(a), sec ond sentence, of the CVA in paragraphs 7.359, 7.362, 
7.376  - 7.377 and 8.1(a) of the Panel Report;  
• Article 6.1 and/or Article 7.1 of the CVA in paragraphs 7.368, 7.375, 7.376  - 7.377  and 8.1(b) 
of the Panel Report; and  
• The obligation to apply sequentially the customs valuation methods in Articles 2 through 7 of 
the CVA in paragraphs 7.398 and 8.1(c) of the Panel Report.  
b. Findings regarding the application of the exceptions in Article XX of the GATT 1994 
to the CVA  
The Panel erred in law in fi nding that the exceptions of Article XX of the GATT 1994 do not apply to 
actions taken to enforce customs laws that may be inconsistent with the provisions of the CVA , 
including, in particular, with respect the 2002 -2003 Charges.4 
Thailand, therefore, requests the Appellate Body to reverse  or set aside  the Panel's conclusions and 
the Panel's legal interpretations contained in paragraphs 7. 440 – 7.456 of the Panel Report.  
Consequently, Thailand also requests the Appellate Body to declare moot and of no legal effect the 
Panel's conclusions and findings relating to:  
• Article 1.1 and/or Article 1.2(a), second sentence, of the CVA in paragraphs 7.359, 7.362, 
7.376  - 7.377 and 8.1(a) of the Panel Report;  
• Article 6.1 and/or Article 7.1 of the CVA in paragraphs 7.368, 7.375, 7.376  - 7.377 and 8.1(b) 
of the Panel Report; and  
• The obligation to apply sequentially the customs valuation methods in Articles 2 through 7 of 
the CVA in paragraphs 7.398 and 8.1(c) of the Panel Report.  
c. Findings regarding the insufficient information to make an objective assessment   
The Panel erred in law in its interpretation and application of its obligation under Article  11 of the 
DSU to consider whether there was sufficient information available concerning the 2002 -2003 
Charges to enable it to make an objective assessment of the matter and allowed the Philippines to 
make a prima facie  case under the CVA.   
Thus, Thailand requests the Appellate Body to find that the Panel acted inconsistently with its 
obligation under Article 1 1 of the DSU to "make an objective assessment of the matter" by 
conducting a de novo  review that is impermissible under the standard of review contained in this 
provision.5  
Thailand, therefore, also requests the Appellate Body to reverse or set aside the Panel's conclusions 
and the Panel's legal interpretations contained in paragraphs 7. 209 – 7.240 of the Panel Report.  
Consequently, Thailand requests the Appellate Body to declare moot and of no legal effect the Panel's 
conclusions and findings relating to:  
• Article 1.1 and/or Article 1.2(a), second sentence, of the CVA in paragraphs 7.359, 7.362, 
7.376  - 7.377 and 8.1(a) of the Panel Report;  
                                                
4 These findings are contained in pa ragraphs 7.440 – 7.456 of the Panel Report.  
5 These findings are contained in paragraphs 7.209 – 7.240  of the Panel Report.  WT/DS371/30  
 
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  • Article 6.1 and/or Article 7.1 of the CVA in paragraphs 7.368 , 7.375, 7.376  - 7.377  and 8.1(b) 
of the Panel Report; and  
• The obligation to apply sequentially the customs valuation methods in Articles 2 through 7 of 
the CVA in paragraphs 7.398 and 8.1(c) of the Panel Report.  
In addition, Thailand notes that the above grounds of appeal are without prejudice to the arguments 
developed in Thailand's  Appellant's Submission . 
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