WT/DS371/41  
 
3 August 2020  
(20-5368) Page: 1/2 
  Original: English  
 
THAILAND – CUSTOMS AND FISCAL MEASURES ON CIGARETTES  
FROM THE PHILIPPINES  
COMMUNICATION FROM THAILAND  
The following communication, dated 30 July 2020 , was received from the delegation of Thailand  with 
the request that it be circulated to the Dispute Settlement Body (DSB).  
 
_______________  
 
 
Thailand sets forth below the content of its statement at the DSB meeting of 29 July 2020 regarding 
Item 12 of the agenda concerning the dispute Thailand – Customs and Fiscal Measures on C igarettes 
from the Philippines (DS371).  
 
1. Mr. Chairman, thank you for the opportunity to make a statement at today's meeting.  
 
2. Thailand refers to its previous statements at the DSB meetings on 5 March 2020 and 
29 June 2020.  
 
3. The circumstances of th is dispute have not changed since the last DSB meeting. As previously 
explained by Thailand, the appeals filed by Thailand in the two compliance proceedings under 
Article  21.5 of the DSU have not been completed due to the Appellate Body impasse. Consequent ly, 
Thailand's position also remains the same as that expressed in previous DSB meetings, which is that 
any request for suspension of concessions under Article 22.2 of the DSU in this dispute would be 
improper as the two compliance proceedings under Articl e 21.5 have not concluded. As these appeals 
are ongoing, the DSB has not adopted any panel or Appellate Body report that could serve as the 
basis for the Philippines' request for suspension of concessions.  
 
4. The Philippines' request for suspension of concessions is also contrary to the sequencing 
agreement signed by the Parties in this dispute. The sequencing agreement states that the 
Philippines could request retaliation only after  the completion of proceedin gs under Article 21.5, 
which includes proceedings before the Appellate Body in case of an appeal. Given that Thailand's 
appeals have not been completed, the Philippines cannot, at this stage, request the suspension of 
concessions or other obligations under  Article 22.2 of the DSU.  
 
5. Furthermore, should the Philippines, for whatever reason, take the position that the rules 
contained in the sequencing agreement are no longer applicable, this would release Thailand from 
its commitment to not object to the Ph ilippines' request as being outside the 30 -day deadline under 
Article 22.6 of the DSU. As acknowledged by the Philippines in its intervention at the DSB meeting 
on 29 June 2020, it is clear from Article 22.6 of the DSU that any request for suspension of 
concessions must be authorized by the DSB "within 30 days of the expiry of the reasonable period 
of time".1  As the reasonable period of time in this dispute expired on 15 May 2012, the deadline 
under Article 22.6 for authorizing the suspension of concessio ns expired on 15 June 2012.  
 
6. As Thailand has also indicated, Thailand disagrees with the Philippines' opinion that the current 
Appellate Body crisis constitutes a "procedural aspect" related to the procedures established in the 
sequencing agreement. As the Philippines itself has recog nized, inter alia  in its communication in 
document WT/DS371/32 of 12 February 2020, the Appellate Body suspended its work due to 
 
1 Communication from the Philippines, WT/DS371/38, dated 2 July 2020, paragraph 5.  WT/DS371/41  
 
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  "institutional constraints" as a result of insufficient number of Appellate Body Members. Without 
prejudice to Thailand’s posit ion, however, my delegation has entered into discussions in a 
constructive spirit as requested by the Philippines in its letter dated 9 March 2020. We stand ready 
to continue these discussions with the DSB Chair and the Philippines with an aim to find a me ans of 
resolving these institutional constraints, including how to move forward the process of selecting new 
Appellate Body members.  
 
7. Chair, Thailand takes this opportunity to remind WTO Members of the urgency of resolving 
the problems affecting the App ellate Body.  The Appellate Body crisis has imposed significant 
challenges on the rules -based system, including with respect to all pending appeals. Resolving the 
Appellate Body crisis is a matter of priority so as to avoid unilateral actions that are cont rary to 
Article 23 of the DSU.  
 
8. Finally, as indicated during previous interventions with the Philippines, Thailand remains open 
to a bilateral dialogue with an aim to identify a possible solution to the substantive issues in this 
WTO dispute that is mut ually acceptable to both parties.  
 
 
__________