THAILAND – CUSTOMS AND FISCAL MEASURES ON CIGARETTES FROM THE PHILIPPINES COMMUNICATION FROM THAILAND
Document: COMMUNICATION FROM
Date: 3 August 2020
Document codes: WT/DS371/41
Complainant: Philippines
Respondent: Thailand
Third parties: Australia, China, EU, India, Taiwan, U.S.
Dispute stage: Appellate Body
Agreements cited: Art. 13, 10  Customs valuationArt. X:3, II:1(b), II:3  GATT 1994Art. 2, 3, 4, 5, 6, 7, 1.1, 1.2  Customs valuationArt. VII:1, VII:2, VII:5  GATT 1994Art. 16  Customs valuationArt. X:1, III:2, III:4  GATT 1994

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 Cigarettes
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 this 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. Consequently,
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 Article 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 Philippines' 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 concessions 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.

"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 means 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 mutually acceptable to both parties.