WT/DS371/43  
 
29 October 2020  
(20-7590) Page: 1/2 
  Original: English  
 
THAILAND – CUSTOMS AND FISCAL MEASURES ON CIGARETTES  
FROM THE PHILIPPINES  
COMMUNICATION FROM THAILAND  
The following communication, dated 27 October 2020 , was received from the delegation of Thailand  
with the request that it be circulated to the Dispute Settlement Body (DSB).  
 
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Thailand sets forth below the content of its statement at the DSB meeting of 26 October 2020 
regarding Item 7 of the agenda concerning the dispute Thailand – Customs and Fiscal Measures on  
Cigarettes from the Philippines (DS371).  
1. Mr. Chairman, I take this opportunity to once again express Thailand's appreciation for your 
active engagement in assisting Thailand and the Philippines in finding a way forward in this dispute. 
The ongoing consul tations under your leadership are permitting a constructive dialogue between the 
Parties. Thailand remains committed to continuing these consultations.  
2. As Thailand has explained in its prior statements at the DSB meetings of 5  March, 29  June, 
29 July, 28 A ugust and 28 September, there is no possible interpretation of the DSU or the 
Sequencing Agreement between the parties that would permit the Philippines to seek authority to 
retaliate at this point in the proceedings. The Philippines' retaliation request i s without legal 
foundation because it was made long after the expiry of the 30 -day deadline in Article 22.6 of the 
DSU. Indeed, it is undisputed that the Philippines did not file any retaliation request by 14 June  2012, 
which is when the 30 -day deadline ex pired in this dispute.  
3. Additionally, the Philippines' retaliation request is contrary to the Sequencing Agreement 
concluded by both Parties, which states that the Philippines must first complete Article 21.5 
proceedings, and only thereafter, if non -complia nce is determined, the Philippines can request 
retaliation under Article 22. Thailand is therefore disappointed that the Philippines now attempts to 
disavow the Sequencing Agreement that both Parties concluded precisely to avoid these types of 
procedural p roblems. Thailand is also surprised that the Philippines considers that Thailand remains 
bound by the Sequencing Agreement, but that the Philippines itself is not.  
4. It is obvious that the real problem here is not the DSU or the Sequencing Agreement, but the 
Appellate Body crisis. It is imperative that a solution be found to this crisis.  
5. Thailand urges all WTO Members to focus on resolving this crisis. We have seen, in  other 
disputes, that parties have continued to file appeals before the Appellate Body notwithstanding the 
current crisis. This highlights the importance placed by Members on having a two -tier system in 
order to ensure the quality and legitimacy of the WTO  dispute settlement. Thailand looks forward to 
continuing the multilateral efforts to solve the Appellate Body impasse with a view to preserving the 
two-tier dispute settlement system of the WTO.  
6. In the meantime, Thailand remains committed to participating  in good faith in the 
consultations organized by the DSB Chairman with the aim of finding a way forward in light of the 
present circumstances. As Members will understand, our preference is very much for a solution that 
is not simply an ad hoc  way of dispos ing of this case, but one that encompasses all pending appeals 
and, ideally, gets the multilaterally -approved DSU system back on track.  WT/DS371/43  
 
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  7. Thailand thanks the DSB Chairman for the opportunity to make a statement at today's DSB 
meeting and we thank our colleag ues from the Philippines for their ongoing engagement. Thailand 
looks forward to the next steps in the consultations facilitated by the DSB Chairman in this dispute.  
 
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