WT/DS371/27  
 
14 January 2019  
(19-0200) Page: 1/3 
  Original: English  
 
 THAILAND – CUSTOMS A ND FISCAL MEASURES O N CIGARETTES   
FROM THE PHILIPPINES   
 
RECOURSE TO ARTICLE  21.5 OF THE DSU BY T HE PHILIPPINES  
NOTIFICATION OF AN A PPEAL BY THAILAND UNDER ARTIC LES 16.4 AND 17 OF T HE 
UNDERSTANDING ON RULE S AND PROCEDURES GOV ERNING THE SETTLEMEN T OF  
DISPUTES (DSU), AND RULE 2 0 OF THE WORKING PROC EDURES  
FOR APPELLATE REVIEW  
The following communication, dated 9 January 2019, from the delegation of Thailand,  is being 
circulated to Members . 
 
_______________  
 
 
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 Settlement 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 (Recourse to Article 21.5 
of the DSU  by the Philippines)  (WT/DS371/RW),  which was circulated on 12 November 2018 (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 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, wi th respect to the following errors contained in the Panel 
Report.1 
A. FINDINGS REGARDING T HE SCOPE AND APPLICA TION 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 the scope of the CVA covered criminal enforcement matters such as  
the criminal 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 purpose of levying ad valorem customs duti es".2 Thailand, therefore, requests the 
Appellate Body to reverse the Panel's findings in paragraphs 7.619 – 7.684 of the Panel Report 
(including, in particular, paragraphs 7.669, 7.684 and footnote 1409).  
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 criminal charges at issue in this case to find that the criminal 
charges at issue in this case were covered by the CVA.3 Thailand, therefore, requests the 
                                                
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 7.619 – 7.684  of the Panel Report  (including, in particular, 
paragraphs 7.669, 7.684 and footnote 1409).  
3 These findings are contained in paragraphs 7.619 – 7.684  of the Panel Report.  WT/DS371/27  
 
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  Appellate  Body to  reverse the Panel's conclusions and the Panel's legal interpretations contained in 
paragraphs 7.619 – 7.684 of the Panel Report.  
Consequently, Thailand also requests the Appellate Body to declare moot and of no legal effect the 
Panel's conclusions and fi ndings under:  
• Articles 1.1 and 1.2(a) of the CVA in paragraphs 7.722 and 8.2(a) of the Panel Report; 
and 
• Article 2.1(a) and (b), or in the alternative, Article 3.1(a) a nd (b) of the CVA in 
paragraphs  7.730 and 8.2(b) of the Panel Report.  
B. FINDINGS REGAR DING "RIPENESS"   
The Panel erred in law in its interpretation and application of its obligation under Article  11 of the 
DSU to consider whether, based on the evidence before it, certain measures challenged by the 
Philippines were "ripe" for resolution by t he Panel.4  
Thailand, therefore, requests the Appellate Body to reverse the Panel's conclusions and the Panel's 
legal interpretations contained in paragraphs 7.566 – 7.606 of the Panel Report. Consequently, 
Thailand also requests the Appellate Body to decl are moot and of no legal effect the Panel's 
conclusions and findings under:  
• Articles 1.1 and 1.2(a) of the CVA in paragraphs 7.722 and 8.2(a) of the Panel Report; 
and 
• Article 2.1(a) and (b), or in the alternative, Article 3.1(a) a nd (b) of the CVA in 
parag raphs  7.730 and 8.2(b) of the Panel Report.  
C. FINDINGS REGARDING T HE APPLICATION OF TH E EXCEPTIONS IN ARTI CLE XX OF THE 
GATT 1994 TO THE CVA  
The Panel erred in law in finding 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 criminal charges at issue in this dispute.5 
Thailand, therefore, requests the Appellate Body to reverse the Panel's conclusion s and the Panel's 
legal interpretations contained in paragraphs 7.741 – 7.761 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 under:  
• Articles 1.1 and 1 .2(a) of the CVA in paragraphs 7.722 and 8.2(a) of the Panel Report; 
and 
• Article 2.1(a) and (b), or in the alternative, Article 3.1(a) a nd (b) of the CVA in 
paragraphs  7.730 and 8.2(b) of the Panel Report.  
D. FINDINGS REGARDING A RTICLE 5 OF THE CVA   
The P anel erred in law in finding that Article 5.1(a)(iv) of the CVA imposes procedural requirements 
regarding the manner in which customs value is determined under Article 5, including, in particular, 
by reading into Article 5.1(a)(iv) a requirement to underta ke a "consultative process" with the 
importer.6 The Panel also erred in using this interpretation to find that Thailand's Customs Board of 
Appeals acted inconsistently with Article 5.1(a)(iv) with respect to the determination of an 
                                                
4 These findings are contained in paragraphs 7.566 – 7.606  of the Panel Report.  
5 These findings are contained in paragraphs 7.741 – 7.761 of the Panel Report.  
6 These findings are contained in paragraphs 7.327 – 7.370  and 8.1(b)(iii) of the Panel Report  (including,  
in particular, paragraphs 7.337 and 7.367 – 7.370).  WT/DS371/27  
 
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  adjustment for provincia l taxes under that provision in re -calculating the dutiable value of certain 
entries under Article 5 of the CVA.  
Thailand, therefore, requests the Appellate Body to reverse the Panel's conclusions and the Panel's 
legal interpretations contained in paragraphs 7.327 – 7.370 and 8.1(b)(iii) of the Panel Report 
(including, in particular, paragraphs 7.337 and 7.367 – 7.370).  
E. FINDINGS REGARDING T HE REQUIREMENTS OF T HAILAND'S VAT SYSTEM   
The Panel erred in law in finding that Thailand 's Revenue Departme nt had adopted an "administrative 
ruling" within the meaning of Article X:1 of the GATT 1994 regarding notifications of the tax base to 
be used to determine the VAT on cigarettes sold in Thailand.7 
Thailand, therefore, requests the Appellate Body to revers e the Panel's conclusions and the Panel's 
legal interpretations contained in paragraphs 7.866 – 7.896 and 8.3(a)  of the Panel Report 
(including, in particular, paragraphs 7.874 – 7.895).  
In addition, Thailand notes that the above grounds of appeal are with out prejudice to the arguments 
developed in Thailand's  Appellant's Submission . 
 
__________  
                                                
7 These findings are contained in paragraphs 7.866 – 7.896 and 8.3(a)  of the Panel Report.