WORLD TRADE  
ORGANIZATION  WT/DS371/8 
23 February 2011 
 (11-0961) 
 Original:   English 
  
 
THAILAND – CUSTOMS AND FISCAL MEASURES ON CIGARETTES 
FROM THE PHILIPPINES 
 
Notification of an Appeal by Thailand
 
under Article 16.4 and Article 17 of the Understanding on Rules  
and Procedures Governing the Settlement of Disputes (DSU),  
and under Rule 20(1) of the Working Procedures for Appellate Review  
   The following notification, dated 22 February 201 1, 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 interpre tation covered in the Panel Report entitled Thailand – Customs 
and Fiscal Measures on Cigarettes from the Philippines  (WT/DS371/R), which was circulated on 
15 November 2010 (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.  
   As described below, Thailand appeals certain of the Panel's findings on measures related to 
Thailand's Value Added Tax ("VAT") regime for ci garettes, as well as Thailand's regime for the 
acceptance of guarantees to secure the importer’s ul timate liability for customs duties pending final 
determination of the customs value of imported goods.  
  
 Thailand seeks review by the Appellate Body  of the following errors of law and legal 
interpretation by the Panel in the Panel Report:  
I. The Panel's finding under Article III:2 of the GATT 1994 
 
1. The Panel erred in law in finding a violatio n of Article III:2, first sentence, of the 
GATT 1994, not on the basis of the fiscal burdens  imposed on imported a nd domestic products under 
Thai VAT law, but solely on the basis of the administrative requirements of Thailand's VAT system 
and the consequences of non-compliance with those requirements.
1  The administrative requirements 
of Thailand’s VAT system and the consequences of  non-compliance are measures that fall within the 
scope of Article III:4, not Article III: 2, first sentence, of the GATT 1994. 
 
                                                      
1 See Panel Report, paras. 6.98-6.120, paras. 7.568-7.644, and para. 8.3(b).  This appeal does not 
include the Panel's separate finding under Article III:2, first sentence, in paragraphs 7.567 and 8.3(a) of the 
Panel Report. WT/DS371/8 
Page 2  
 
 2. Even if the Panel were correct to address th e administrative requirements of Thai VAT law 
under Article III:2, first sentence, of the GATT 1994, th e Panel erred in law in finding a violation of 
Article III:2 solely on the basis of administrativ e requirements whereby resellers must file a VAT 
form declaring and offsetting their VAT credits a nd liabilities on re-sales of imported cigarettes for 
each month and whereby VAT credits are granted onl y with respect to actual, documented purchases 
of goods such as imported cigarettes.
2  These requirements cannot, as a matter of law, lead to taxation 
of imported products in excess of that imposed on domestic products within the meaning of 
Article III:2, first sentence. 
 
II. The Panel's finding under Articles III:4 and XX(d) of the GATT 1994 
 
3. The Panel erred in law in finding that certain  additional administrative requirements for re-
sales of imported cigarettes amounted to less favourab le treatment of imported products within the 
meaning of Article III:4 of the GATT 1994 on the basi s of a finding solely that these administrative 
requirements could potentially affect the compe titive position of imported cigarettes that is not 
supported by its factual analysis and findings.3 
 
4. The Panel erred in law in rejecting Thailand' s defence under Article XX(d) of the GATT 1994 
to the Philippines' claim under Article III:4 on the ground that it had already found the measures with 
respect to which Thailand asserted the defence (the a dditional administrative requirements for re-sales 
of imported cigarettes) to be inconsis tent with Article III:4 of the GATT 1994.4  Instead, the Panel 
should have looked first at whether the laws with  respect to which Thailand sought to achieve 
compliance were otherwise c onsistent with the GATT 1994.5 
 
5. The Panel erred in law by accepting and relying on evidence that was submitted at the last 
opportunity for the parties to submit their views to the Panel and that was the only evidence to support 
one aspect of the Panel's finding under Article III:4 and upon which Thaila nd had no opportunity to 
comment.6  The Panel acted inconsistently with Artic le 11 of the DSU and paragraph 15 of its 
Working Procedures and also failed to protect Thailand's due process right s by accepting and relying 
on this evidence.7 
 
III. The Panel's finding under Article X:3(b) of the GATT 1994 
 
6. The Panel erred in law in finding that the pr ovisional step of accepting a guarantee in the 
circumstances provided for in Article 13 of the Agreement on Implementation of Article VII of the 
General Agreement on Tariffs and Trade 1994 ("CVA" ) constitutes an "administrative action relating 
to customs matters" within the meaning of and subjec t to a right of review under Article X:3(b) of the 
GATT 1994.8  
 
                                                      
2 See Panel Report, paras. 6.98-6.120; paras. 7.613-7.637; and 8.3(b). 
3 See Panel Report, paras. 7.724-7.738 and para. 8.3(c). 
4 See Panel Report, paras. 7.749-7.758. 
5 See Panel Report, paras. 7.738 and para. 8.3(c). 
6 See Panel Report, paras. 6.122-6.128, paras. 7.684-7.704, and para. 8.3(c). 
7 See Panel Report, paras. 6.122-6.128, paras. 7.684-7.704, and para. 8.3(c). 
8 See Panel Report, paras. 7.1016-7.1053 and para. 8.4(g).  WT/DS371/8 
 Page 3 
 
 
 7. Even if the Panel were correct  that the acceptance of a guarantee under Article 13 of the CVA 
constitutes an "administrative action relating to customs matters" within the meaning of 
Article X:3(b), the Panel erred in law in finding th at providing a right of review of the taking of a 
guarantee at the time of the final determination of duty liability cannot satisfy the obligation in 
Article X:3(b).9 
 
Thailand respectfully requests the Appellate Body to reverse the findings of the Panel 
identified in this Notice of Appeal. 
  
__________ 
 
                                                     
 
9 See Panel Report, paras. 7.1054-7.1087, and para. 8.4(g).