WT/DS371/24  
 
1 June 2018 
(18-3273) Page: 1/10 
  Original: English  
 
THAILAND – CUSTOMS AND FISCAL M EASURES ON CIGARETTE S 
FROM THE PHILIPPINES  
SECOND RECOURSE TO A RTICLE 21.5 OF THE D SU BY THE PHILIPPINES  
COMMUNICATION FROM T HE PANEL  
The following communication, dated 30 May 2018, was received from the Chairperson of the Panel 
with the request that it be circulated to the Dispute Settlement Body.  
 
_______________  
 
 
On 15 May 2018, the Philippines  submitted a request for a procedural ruling concerning third -party 
access to the Final Report of the Panel in the Philippines' f irst recourse to Article 21.5 of the DSU.   
 
On 24 May 2018, the Panel issued the attached procedural ruling to the parties and third parties 
participating in the Philippines' second recourse to Article 21.5 of the DSU.   
 
After consulting the parties to the dispute, the Panel decided to inform the Dispute Settlement 
Body (DSB) of the contents of its procedural ruling and enclosed additional working procedures to 
ensure transparency to all WTO Members. Therefore, I  would be grateful if you would circula te this 
letter and the attached procedural ruling to the DSB.  
 
 
_______________  
 
   WT/DS371/24  
 
- 2 - 
 
   
PROCEDURAL RULING CO NCERNING THIRD -PARTY ACCESS TO THE FINAL REPORT OF THE PANEL 
IN THE PHILIPPINES' FIRST RECOURSE TO AR TICLE 21.5 OF THE DS U 
24 May 2018  
1  INTRODUCTION  
1.1.  The Philippines has requested that the Members participating as third parties in its second 
recourse to Article 21.5 of the DSU receive a copy of the confidential Final Report that was already 
issued to the parties in its first recourse to Article 21.5 of the DSU, and that is not expected to be 
translated and publicly circulated before the last quarter of 2018.  
1.2.  After consulting with the parties, the Panel has decided to grant the Philippines' request. This 
procedural ruling relates to the working procedure s of both the first and second compliance panels, 
and will therefore be annexed to the Reports of the Panel in both the first and second compliance 
panel proceedings . 
2  FACTUAL BACKGROUND  
2.1.  In the context of the Philippines' first recourse to Article 21.5 of the DSU, the Panel informed 
the Dispute Settlement Body (DSB) that  it expected  to issue its Final R eport to the parti es in the 
first quarter of 2018 .1 The Panel did so. Following the issuance of the Report to the parties, the 
Secretariat in formed the parties that the translation of the Final Report into Spanish and French 
was not expected to be completed before the last quarter of 2018.  
2.2.  At its meeting on 27 March 2018, the DSB established a second compliance panel to examine 
the matter refe rred to by the Philippines in its second recourse to Article 21.5 of the DSU in this 
dispute. As set forth in its request for the establishment of a second compliance panel2, the two 
sets of measures at issue in the Philippines' second recourse to Article 21.5 are  related to the 
measures at issue in the first compliance proceeding:  
a. The Philippines challenges Notices of Assessment that Philip Morris (Thailand) Limited 
(PMTL) received in November 2017 from Thailand's Customs Department, rejecting  
PMTL's declared transaction values, and determining revised customs valu es, for 1052 
shipments of cigarettes imported over the period 2001 -2003. These 1052 shipments 
include 208 shipments whose  customs values were previously assessed by a ruling of the 
Board of Appeal s that was issued on 16 November 2012. The November 2012 Board of 
Appeals Ruling is the subject of the Philippines' first reco urse to Article 21.5 of the DSU.  
b. The Philippines challenges a set of criminal charges filed by the Public Prosecutor against 
PMTL and one of its former employees on 26 January 2017, in respect of 779 shipments 
of cigarettes imported in 2002 -2003. This second set of charges was filed one year after 
a first set of criminal charges was filed by the Public Prosecutor against PMTL and se ven 
of its current and former employees on 18  January 2016 , in respect of 272 shipments  of 
cigarettes imported between 2003 -2006. The first set of criminal charges is  the subject 
of the Philippines' first recourse to Article 21.5 of the DSU.  
2.3.  With respect to both sets of measures at issue in the second compliance proceeding, the 
Philippines' panel request claims that the Thai authorities acted inconsistently with various 
obligations under the Customs Valuation Agreement (CVA) and the GATT 1994, including inter 
alia:  
a. Articles 1.1 and 1.2(a) of the CVA, by rejecting PMTL's transaction values without 
conducting a proper examination of the circumstances of sale, by failing to communicate 
the grounds for considering that the relationship between the buyer and se ller influenced 
the price , and by failing to give the importer any opportunity to comment on the 
information under consideration ;  
                                                
1 WT/DS371/20, dated 15 May 2017.  
2 WT/DS371/22, dated 14 March 2018.  WT/DS371/24  
 
- 3 - 
 
  b. the relevant provisions of Articles 2 through 7 of the CVA, by failing to comply with the 
applicable valuation rules when det ermining the revised customs values of the imported 
goods; and  
c. Article 16 of the CVA, by failing to provide, upon written request, a written explanation 
as to how the customs values of the imported goods were determined . 
2.4.  The Panel observes that t hese clai ms are similar , if not identical , to the legal claims raised in 
the first compliance panel proceeding pertaining to  both the November 2012 Board of Appeals 
Ruling and the first set of criminal c harges filed on 18 January 2016. These legal claims are the 
subject of the Panel's findings in the Final Report that was already issued to the parties in the first 
quarter of 2018.  
2.5.  The DSB was informed on 9 May 2018 that the second compliance panel is composed of the 
same individuals serving on the first compliance panel.3 On 24 May 2018, the Panel adopted its  
timetable and working  procedures, based on a draft timetable and a draft set of working 
procedures jointly agreed and proposed  by the parties. In accordance with the  timetable proposed 
by the parties  and subseq uently adopted by the Panel, the complainant is expected to file its  first 
written submission before the end of May . The agreed timetable  further provides that the parties' 
remaining written submissions, the third -party written submissions, and the written  responses to 
any pre -hearing questions, will all be received before the last quarter of 2018. The timetable 
further provides that the substantive meeting with the parties (including the third -party session), 
and any post -hearing written questions and resp onses, will take place  within the last quarter of 
2018.  
3  THE PHILIPPINES' REQ UEST AND THAILAND'S RESPONSE  
3.1.  On 15 May 2018, the Philippines requested that the working procedures governing the 
conduct of the first compliance panel proceeding, which were adopted by the Panel on 25 January 
2017, be amended so as to make the Final Report available to the third parties participating in this 
second compliance proceeding. In its request, the Philippines recalled that under paragraph 28 of 
those working procedur es, the Final Report of the Panel is to be treated as "strictly confidential" 
and thus could not be shared with WTO Members, besides the Philippines and Thailand, until it is 
circulated. The Philippines presented this request at the same time that the part ies presented the 
Panel with their agreed timetable and working procedures.  
3.2.  In its request, the Philippines confirmed that the interpretations developed by the Panel in its 
Final Report relate to issues that will also arise in the context of this second c ompliance 
proceeding. The Philippines observed that both proceedings concern criminal charges brought by 
the Thai authorities against the same importer, and that some of the claims that the Philippines 
brings in this case are identical to the claims that i t made in the first compliance proceeding. The 
Philippines further noted that there is an overlap in the shipments of cigarettes covered by each of 
the two sets of measures at issue in the second compliance proceedings, on the one hand, and one 
of the meas ures at issue in the first compliance proceeding (namely, the November 2012 Board of 
Appeals Ruling). In its request, the Philippines informed the Panel that it intends to refer to the 
Final Report in its submissions in this second compliance proceeding, i ncluding in its first written 
submission due to be filed before the end of May.  
3.3.  The Philippines recalled that Article 10 of the DSU provides that the third parties must be 
given access to the submissions of the parties in order to participate in the secon d compliance 
proceedings, but observed that if paragraph 28 of the working procedures is left as it is, the 
Philippines would be obliged to prepare a redacted and incomplete version of its submissions for 
the third parties. In the Philippines' view, this w ould necessarily deny the third parties full access 
to the submissions and thereby prejudice their right to participate in the proceedings in a full and 
meaningful fashion. The Philippines noted that without access to the Final Report, the third parties 
would be denied the ability to make submissions informed by the Final Report because they would 
be unaware of, and unable to address, an important part of the jurisprudence relevant to the 
second compliance proceeding and also to the parties' arguments in th at respect.  In the 
Philippines' view, providing the Final Report to a limited number of Members participating in this 
proceeding as third parties would not be tantamount to the circulation of the Report, because 
                                                
3 WT/DS371/23, dated 9 May 2018.  WT/DS371/24  
 
- 4 - 
 
  those Members participating as third partie s would still be subject to the obligation to preserve the 
confidentiality of the Report.  
3.4.  At the organizational meeting with the Panel held on 19 May 2018, Thailand indicated that it 
had serious reservations and concerns regarding the Philippines' request  because of the systemic 
issues that it raised. Thailand considered that it was for the Panel to decide, but emphasized that if 
the Panel chose to grant the request, any such decision should be taken on the grounds that there 
are sui generis circumstances so as to avoid creating a broader precedent.  
3.5.  Thailand expressed its doubts whether there were circumstances in this case that would 
warrant a decision to sacrifice the important rule of "strict confidentiality" of the Final Report, and 
queried whether the  Philippines was in effect proposing to advance the circulation date simply for 
its own convenience. Thailand emphasized two points. First, Thailand suggested that the present 
case was not so exceptional insofar as it is quite common for Members and legal counsel involved 
in multiple WTO dispute settlement proceedings to have access to a Report or ruling in one 
proceeding that, regardless of its relevance, cannot be shared or referenced in the context of 
another proceeding. Second, Thailand observed that de lays in the translation of panel reports were 
not exceptional either. Therefore, Thailand suggested that if the Panel chose to grant the 
Philippines' request in this case, the delay in translation should not be treated as sui generis 
circumstance or otherw ise given undue weight in the reasoning justifying that course of action.   
3.6.  As to the modalities for how access would be granted to the third parties if the Panel chose to 
do so, Thailand indicated that in its view it was too late to modify the working pro cedures 
governing the conduct of the first compliance panel. Thailand also noted that the Members 
participating as third parties in the first and second compliance panel were not identical. For these 
reasons, Thailand suggested that if the Panel were incli ned to grant the Philippines' request, the 
issue should be addressed in the context of the working procedures of this second compliance 
panel.  
4  EVALUATION BY THE PA NEL  
4.1.  We would stress at the outset that this case involves a particular combination of 
circumstances, which are as follows:  
a. there are two consecutive compliance panel proceedings in Thailand – Customs and 
Fiscal Measures on Cigarettes from the Philippines (DS371) between the same disputing 
parties and before two compliance panels composed of the same individuals;  
b. the Final Report in the first compliance proceeding has already been issued to the 
parties, and therefore the Panel's findings and reasoning are no longer subject to any 
further modification by the Panel;  
c. prior to filing its first written submission, the Philippines informed the Panel that by 
virtue of the overlapping subject -matter of the two compliance proceedings, its 
submissions will refer to the Final Report to an extent that will necessitate third -party 
access to the Final Report if they are to participate in the proceeding in a full and 
meaningful fashion;  
d. the Secretariat has informed the parties and the Panel that the Final Report will not be 
circulated until some point (yet to be determined) in the  last quarter of 2018, which is 
after the dates for the parties to file all of their written submissions and the date for the 
filing of the third -party written submissions, and possibly also after the substantive 
meeting with the parties and the third -party session;  
e. the Philippines has specifically requested that the Panel modify its working procedures to 
grant third -party access to the Final Report pending its translation; and  
f. ten Members have already notified their third -party interest in these proceedin gs, and 
these third parties are therefore legally entitled to receive all of the parties' submissions 
filed prior to the substantive meeting.  WT/DS371/24  
 
- 5 - 
 
  4.2.  Clearly, the Panel does not have the authority to unilaterally authorize the circulation of a 
panel report prior to its translation into all three official languages of the WTO. The General 
Council's Decision on Procedures for the Circulation and Derestriction of WTO Documents4 states 
unequivocally that official WTO documents, including reports of panels5, shall be m ade available 
via the WTO website to facilitate their dissemination to the public at large "[o]nce translated into 
all three official WTO languages".6 It is true that the same decision states that the translation of 
panel reports shall be completed "expedi tiously"7, and the Panel notes that Article 15.2 of the DSU 
likewise envisages that the translation and circulation of a panel's final report shall be completed 
"promptly". However, that requirement does not serve to qualify the rule that panel reports may  
only be circulated once translated into the other official languages. Insofar as time periods being 
experienced for the translation of panel reports warrants a review of that rule and the existing 
procedures governing circulation, the authority to do so i s vested with the Members.8  
4.3.  The issue presented by the Philippines' request is distinct from the question of whether the 
Final Report can be circulated prior to its translation. The Philippines has not requested that the 
Panel circulate the Report prior t o its translation, nor has it requested that the Panel waive the 
confidentiality of the Final Report prior to its public circulation. Rather, the Philippines has 
requested that the Panel allow those Members participating as third parties in the Philippines ' 
second recourse to Article 21.5 of the DSU to have access, on a confidential basis, to the contents 
of the Final Report that has already been issued to the parties in the Philippines' first recourse to 
Article 21.5 of the DSU, and to which the parties ar e undoubtedly going to refer in their 
submissions to the second compliance panel.  
4.4.  Furthermore, the question before the Panel is not whether it should adopt special procedures 
to deal with the situation that the parties find themselves in, but rather what special procedures 
the Panel should adopt to deal with this situation. If the Panel does not adopt a special procedure 
for granting third parties access to the contents of the Final Report on a confidential basis, the 
Panel will then have to adopt one of t he following alternative sets of special procedures:  
a. the Panel could decline to grant third parties access to the contents of the Final Report 
without modifying the timetable for the proceeding agreed by the parties, in which case 
the Panel would then have  to adopt special procedures requiring the parties to redact all 
reference to the contents of the Final Report when they serve their submissions on the 
third parties in this second compliance panel proceeding9; or   
b. the Panel could decline to grant the thi rd parties access to the contents of Final Report, 
and deal with the situation by modifying the timetable proposed by the parties so as to 
postpone the dates for filing their written submissions until such time as the Final Report 
has been translated and c irculated sometime in the last quarter of 2018.   
4.5.  With these preliminary considerations and the alternative options in mind, t he Panel recalls 
that it is well established that "the DSU, and in particular its Appendix 3, leave panels a margin of 
discretion to deal, always in accordance with due process, with specific situations that may arise in 
a particular case and that are not explicitly regulated".10 The Panel is required to deal with a 
                                                
4 WT/L/452, dated 16 May 2002.  
5 WT/L/452, dated 16 May 2002, paragraph 1 and footnote 1.  
6 WT/L/452, dated 16 May 2002, paragraph 3.  
7 WT/L/452, dated 16 May 2002, paragraph 3.  
8 WT/L/452 , dated 16 May 2002, paragraph 5 . 
9 Such additional procedures would also require the Panel to redact any references to the Final Report 
from any preliminary or procedural rulings made by the Panel and served upon the third parties prior the 
circulation of the Final Report.  
10 Appellate Body Report, EC – Hormones , footnote 138. The Appellate Body made that statement in EC 
– Hormones , when reviewing the panel's decision to grant the United States access to all information in the 
proceedings initiated by Canada (and vice versa), in the context of Canada and the United States having 
initiated separate dispute settlement proceedings, and  each participating as a third party in the proceeding 
initiated by the other. The Appellate Body considered that "[a]lthough Article 12.1 and Appendix 3 of the DSU 
do not specifically require the Panel to grant this opportunity to the United States, we be lieve that this decision 
falls within the sound discretion and authority of the Panel, particularly if the Panel considers it necessary for 
ensuring to all parties due process of law". The Appellate Body considered that "in the case before us, 
circumstance s justified the Panel's decision", and recalled that in other cases, panels have considered that 
"particular circumstances justified the grant to third parties of rights somewhat broader than those explicitly 
envisaged in Article 10 and Appendix 3 of the D SU". (Appellate Body Report, EC – Hormones , paras.  154-155.)  WT/DS371/24  
 
- 6 - 
 
  situation that is not explicitly regulated by the DSU or any other ap plicable rules, and it falls within 
the authority of the Panel to adopt appropriate arrangements to deal with this situation in 
accordance with due process and following consultation with the parties pursuant to Article 12.1 of 
the DSU. The Panel is mindfu l that " due process requires a balancing of various interests, including 
systemic interests as well as those of the parties, and both general and case -specific 
considerations".11 The Panel has given careful consideration to the particular circumstances of t he 
case and the parties' views, while engaging in a balancing exercise taking into account how each of 
the alternative options before the Panel would impact on the rights and interests of the third 
parties, the Panel, the parties, and the WTO membership at  large. In the particular circumstances 
of this case, the Panel considers that due process is best served by granting the third parties 
access to the contents of the confidential Final Report of the Panel in the Philippines' first recourse 
to Article 21.5 of the DSU,  subject to the conditions set forth in the enclosed additional procedures 
adopted by the Panel.  
4.6.  The Panel recalls that Article 10.1 of the DSU  obliges it to ensure that the interests of the 
third parties are "fully taken into account during the panel process". Further, it is generally 
understood that " the third participants' interests lie mainly in the correct legal interpretation of the 
provisi ons of the WTO agreements ".12 Providing the third parties with versions of the parties' 
submissions that have not been redacted so as to remove all references to the contents of the 
Final Report, including the relevant legal interpretations contained therei n and the parties' legal 
arguments based on those interpretations, would therefore ensure that the third parties are able 
to exercise their right to participate in these proceedings "in a full and meaningful fashion"13, as 
guaranteed by Article 10 of the DS U. Conversely, requiring the parties to serve third parties with 
redacted versions of their submissions, which would remove all references to the Final Report 
including all of the parties' argumentation directly referencing any interpretations by the first  
compliance panel, may infringe upon the right of the third parties to receive "the submissions" of 
the parties prior to the first meeting with the panel as provided for in Article 10.3 of the DSU. As 
to the alternative option of delaying the proceedings u ntil the Final Report of the Panel is circulated 
in both Spanish and French, the submissions of the parties  in this proceeding are in English. It  is 
not clear how any third party would be prejudiced by receiving access only to the English version 
of the Final Report while its translation is pending, given that  the principal reason for granting 
third-party access to the Final Report is to enable the Members participating in this proceeding as 
third parties to have access to, understand , and meaningfully comm ent on  the legal arguments 
contained in the submissions of the parties .  
4.7.  The Panel considers that meaningful third -party participation in this proceeding is 
instrumental to the Panel's own function of making an objective assessment of the matter before 
it, and in particular to ensuring that the Panel arrives at the  correct legal interpretation of the 
provisions of the WTO agreements . This again favours granting third parties access to non -
redacted versions of the parties' submissions, as a means of ensuring  that the third parties can 
provide meaningful views on the parties' legal arguments. Conversely, if the third parties are 
unable to access the parties' argumentation, the Panel may receive a number of third -party 
submissions advancing argumentation on the  interpretation of CVA obligations that were prepared 
without sufficient knowledge of what the parties are actually arguing before this second 
compliance panel, and without the knowledge of the jurisprudence that may serve as the basis for 
those arguments.  The Panel considers that if it is denied the benefit of informed third -party 
submissions in this manner, this could compromise the Panel's own ability to make an objective 
assessment of the matter as required under Article 11 of the DSU. Alternatively, if  the Panel were 
to stay the proceeding by at least four to six months against the wishes of the parties and leave all 
dates in the air pending the public circulation of the Report, the Panel would not be acting 
consistently with its general duty to conduct  the proceedings in a fair and orderly manner, or with 
its specific obligation to fix the timetable as required by Article 12.3 of the DSU.14 
                                                
11 Appellate Body Report, Thailand – Cigarettes (Philippines) , para. 150.  
12 Appellate Body Report, EC and certain member States – Large Civil Aircraft , Annex III, Procedural 
Ruling and Additional  Procedures to Protect Sensitive Information, para. 23.  
13 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 249. See also Appellate Body Report, 
Japan – DRAMs (Korea) , para.  279, cautioning panels against sweeping redactions that could render a r eport 
unintelligible to third parties.  
14 Article 12.3 of the DSU provides that the timetable for the panel process is to be fixed "as soon as 
practicable and whenever possible within one week after the composition and terms of reference of the panel 
have b een agreed upon".  WT/DS371/24  
 
- 7 - 
 
  4.8.  The Panel does not consider that granting access to the contents of the Final Report on a 
confidential basis to the  third parties would prejudice the interests of either the responding party 
or the complaining party in the circumstances of this proceeding. Thailand has indicated that its 
concerns and reservations are "systemic" in nature, and has not suggested that sha ring the Final 
Report with third parties would prejudice its interests in the context of this proceeding. For its 
part, the Philippines specifically requested that the Final Report be shared with the third parties, 
and argued that its own due process right s may be affected if its request is not granted. In 
contrast, the Panel considers that prejudice to the due process rights of one or both parties would 
indeed arise if the Panel adopted special procedures providing for the redaction, or postponement, 
of the parties' written submissions. The first scenario would, as already explained, give rise to a 
very real possibility of the third parties preparing submissions without adequate knowledge of the 
parties' submissions, and in particular without adequate knowl edge of the parties' arguments 
regarding the correct interpretation of the WTO obligations at issue in this proceeding, or the 
jurisprudence that may serve as an important basis for the parties' arguments. Requiring the 
parties to dedicate their time and r esources to responding to third -party submissions prepared in 
such circumstances may entail an "uneconomical use of time and resources"15 by the parties. 
Alternatively, the Panel considers that the prejudice visited upon the complaining party would be 
even greater if the Panel sought to deal with the situation confronting it by postponing the filing of 
the parties' submissions until the Final Report has been circulated. While this option for dealing 
with the delay in translation would fully safeguard the int erests of the third parties and ensure 
their meaningful participation, it would do so at the expense of the complaining party's due 
process rights16 and the overall object and purpose of the DSU.17  
4.9.  Finally, the Panel has considered the rights and systemic i nterests of the WTO membership at 
large, particularly from the perspective of contemplating how granting access to the contents of 
the Final Report to third parties in this proceeding could potentially affect other Members in their 
capacity as parties in a ny other parallel panel proceedings. In general, those Members receiving a 
confidential copy of the Final Report for the purpose of enabling them to develop their 
argumentation in this panel proceeding would enjoy no advantage over other Members in the 
context of any parallel proceeding, given that those Members who receive a copy of the Final 
Report would be prevented from referencing the contents of the Final Report outside of the context 
of the present proceeding.18 Having said that, the Panel recognizes that if there are parallel 
proceedings involving similar issues to those examined in the Final Report, and if one of the 
parties to those proceedings has access to the contents of the Final Report and the other disputing 
party does not, such knowledge coul d potentially inform that party's argumentation in a manner 
that could give rise to due process issues. However, the Panel considers that insofar as this is a 
concern for any Member, that concern is appropriately and fully addressed by circulating this 
procedural ruling enclosing the additional working procedures to the DSB, and thereby putting all 
WTO Members on an equal footing.  
4.10.   The Panel agrees with Thailand that preserving the confidentiality of the contents of the 
Final Report pending its circulation to all Members in the three official languages is an important 
principle. However, the Panel does not consider that its decision to grant interested third parties 
access to the contents of the Final Report on a confidential basis, for the sole purpose of a llowing 
them to exercise their right to participate in a meaningful and full way in this second compliance 
panel proceeding, sacrifices that principle. The Report remains confidential. As elaborated in the 
enclosed procedures, which establish particularize d arrangements for the purpose of this 
proceeding, the Panel has decided that the Final Report may be provided upon request to an 
                                                
15 Appellate Body Report, EC – Hormones , para. 152. In this scenario, the potential burden on the 
parties could be compounded if the Final Report were circulated prior the conclusion of the briefing phase of 
the second proceeding, and at a late stage of this proceeding one or more the third parties requested leave 
from the Panel to provide a supplemental third -party submission prepared in the light of the information in the 
Final Report to which it finally had access . 
16 The Appellate Body has also stated that " due process" requires a panel to take appropriate account of 
the complaining party's "right to have recourse to an adjudicative process in which it can seek redress in a 
timely manner".  (Appellate Body Report, Thailand – Cigarettes (P hilippines), para. 150.)   
17 Article 3.3 of the DSU provides that the "prompt settlement" of disputes is "essential to the effective 
function of the WTO". The Appellate Body has confirmed that this is part of the "overall object and purpose" of 
the DSU. ( Appellate Body Report, US – Offset Act (Byrd Amendment) , para. 311. ) 
18 Furthermore, we understand that in the event of a breach of its confidentiality, another panel would 
be precluded from  considering the contents of the Final Report prior to its circulati on. See China – Raw 
Materials , Communication from the Panel, 18 May 2010, WT/DS394/9, WT/DS395/9, WT/DS398/8, paras. 43 -
44. WT/DS371/24  
 
- 8 - 
 
  interested third party on the basis of several interlocking conditions aimed at ensuring that the 
confidentiality of the Final  Report is preserved.  
4.11.   The Panel agrees with Thailand that it is common for Members and legal counsel involved in 
multiple WTO dispute settlement proceedings to have access to a Report or ruling in one 
proceeding that, regardless of its relevance, cannot b e shared or referenced in the context of 
another proceeding. This procedural ruling is not mean t to suggest otherwise, or to open the door 
to panels, parties or third parties receiving advance copies of panel reports in translation whenever 
two different p roceedings have overlapping subject -matter . In the circumstances of this case, the 
disputing parties and the Panel already have the Final Report , and will refer to it in their 
submissions to the Panel . The decision to grant third -party access to the Final Report  has not been 
taken because of  the degree of overlappin g subject -matter  as an autonomous  consideration, but 
rather because the Panel expects  that by virtue of th e overlapping subject -matter between the two 
compliance proceedings, the parties' submiss ions in the second compliance proceeding will refer to 
the Final Report from the first compliance proceeding in a manner that will necessitate third -party 
access to the contents of the Final Report if they are to participate in the second compliance panel 
proceeding in a full and meaningful fashion.  In order words, the principal reason for granting third -
party access to the Final Report is simply to enable the third parties to have access to, understand , 
and meaningfully comment on  the submissions of the parties . 
4.12.   The parties have provided the Panel with alternative views on the modalities for granting 
third parties access to the Final Report. In its request, the Philippines requested that the Panel 
amend paragraph 28 (regarding the strict confidentiality o f both the Interim and Final Reports) of 
the working procedures adopted by the panel on 25 January 2017,  in its capacity as the first 
compliance panel. The Philippines indicated that it could then attach the Final Report as an exhibit 
to its first written submission in this second compliance proceeding. However, Thailand considers 
that the modalities for implementing any decision to grant access to third parties should instead 
relate to the working procedures in this second compliance proceeding, because in  its view it is too 
late for the Panel to amend the working procedures governing the first compliance proceeding. 
Thailand also notes that there is no identity between the third parties in the first and second 
compliance proceedings.  
4.13.   Having considered the  parties' view on the modalities for providing third parties with access 
to the contents of the Final Report, the Panel has concluded as follows:  
a. If third parties are to be given access to the contents of the Final Report, they should be 
given a copy of th e Final Report rather than merely being able to receive non -redacted 
versions of the parties' submissions and the passages of the Report that are referenced 
or extracted therein. The reason is to avoid inducing one or both parties to insert 
lengthy, multi -page extracts from the Final Report in their submissions (which would 
erase the formal distinction between third parties having a copy of the Final Report 
versus not having one, and leave the parties, third parties and Panel having to work with 
needlessly long, extract -laden submissions).  
b. The Panel accepts that either party attaching the Final Report to its submission could be 
one practical way of making it available to all of the third parties, but the Panel considers 
that it would be more appropriate for the Panel itself to provide a copy of the Final 
Report to the third parties, and to limit such provision to only those third parties that 
specifically request it.  
c. The Panel considers that it is not necessary to amend the terms of paragraph 28 of the 
worki ng procedures adopted in the first compliance panel proceeding, because the Panel 
considers that making the contents of the Final Report available to third parties, in 
accordance with the confidentiality and permissible use provisions of paragraphs 2 to 4 
of the enclosed additional procedures, does not constitute "disclosure" of the Report 
within the meaning of paragraph 28 of the working procedures adopted by the Panel on 
25 January 2017.   
d. Only the Panel in the first proceeding has the legal authority to g rant third -party access 
to the contents of its Final Report. The Panel considers that it still has the authority to 
take appropriate action in its capacity as the first compliance panel, notwithstanding that WT/DS371/24  
 
- 9 - 
 
  it has already issued its Final Report.19 At the same time, the Panel agrees with Thailand 
that because the third parties are not identical in the first and second compliance 
proceedings, any procedures governing access to the Final Report cannot be made 
effective solely through a change to the working p rocedures of the first compliance 
panel. In the light of the foregoing, the enclosed additional working procedures will be 
annexed to the Report of the Panel in the Philippines' first recourse to Article 21.5 of the 
DSU, and also incorporated by reference into the working procedures adopted by the 
Panel for the purposes of the Philippines' second recourse to Article 21.5 of the DSU.  
  
                                                
19 A panel's authority to take procedural decisions does not lapse upon the issuance of its final report to 
the parties. By way of il lustration, a panel that has issued its final report to the parties still has the authority to 
suspend the proceedings upon request of a party pursuant to Article 12.12 of the DSU.  WT/DS371/24  
 
- 10 - 
 
   
Additional Working Procedures concerning Third -Party Access to the Final Report of the Panel  
in the Philippines' first recourse to Article 21.5 of the DSU  
 
1. Following consultation with the parties, the Panel has adopted these additional procedures 
pursuant to its authority under Article 12.1 of the DSU and taking into account the particular 
circumstances of these proceedings.  
 
2. Pending the translation and public circulation of the Final Report of the Panel in the 
Philippines' first recourse to Article 21.5 of the DSU (the Final Report), the Panel will provide an 
electronic copy of the Final Re port to any Member participating as a third party in Thailand – 
Customs and Fiscal Measures on Cigarettes from the Philippines – Second Recourse to Article 21.5 
of the DSU by the Philippines  (Philippines' second recourse to Article 21.5) subject to the fol lowing 
conditions:  
 
(a) the electronic copy of the Report obtained under these procedures may be referenced 
by a third party only for the purpose of enabling it to prepare its third -party written 
submission, third -party oral statement, or responses to ques tions in the Philippines' 
second recourse to Article 21.5, and for no other purpose; and  
 
(b) no person may have access to the Report except an employee of a third party, and an 
outside adviser acting on behalf of the third party for the purposes of this d ispute, and 
each third party shall have responsibility in this regard for its employees as well as 
any outside advisers used for the purposes of this dispute.  
 
3.  Any Member participating as a third party in the Philippines' second recourse to Article 21 .5 
that wishes to receive a copy of the Final Report subject to these conditions shall request a copy of 
the Final Report from the Panel. To promote the orderly conduct of the proceeding, any interested 
third party is invited to make any such request promp tly upon becoming aware of these additional 
procedures.  
 
4. The parties and third parties are free to refer to the contents of the Final Report in their 
submissions to the Panel in the Philippines' second recourse to Article 21.5 of the DSU. Pending 
the translation and public circulation of the Final Report, any reference to the contents of the Final 
Report included in the parties' and third parties' written submissions, oral statements or responses 
to questions in the context of the Philippines' second re course to Article 21.5 of the DSU shall be 
treated as confidential information by the parties and third parties and shall not be publicly 
disclosed. Accordingly, if a party or third party makes its submissions publicly available, any 
reference to the conte nts of the Final Report shall be redacted from the public version of its 
submission pending the translation and public circulation of the Final Report.  
 
5. In accordance with paragraph 28 of the Working Procedures adopted by the Panel on 25 
January 2017 in  the context of the Philippines' first recourse to Article 21.5 of the DSU, the Final 
Report is strictly confidential and shall not be disclosed . For greater clarity, granting third parties 
access to the contents of the Final Report in accordance with para graphs 2 to 4 of these additional 
procedures does not constitute "disclosure" within the meaning of paragraph 28.  
 
6. These additional working procedures concerning third -party access to the Final Report of the 
Panel will be annexed to the Report of the P anel in the Philippines' first recourse to Article 21.5 of 
the DSU, and have been incorporated by reference into the working procedures adopted by the 
Panel in the context of the Philippines' second recourse to Article 21.5 of the DSU.  
 
__________