THAILAND – CUSTOMS AND FISCAL MEASURES ON CIGARETTES FROM THE PHILIPPINES COMMUNICATION FROM THE PHILIPPINES
Document: COMMUNICATION FROM
Date: 28 October 2020
Document codes: WT/DS371/42; WT/DS371/32
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 THE PHILIPPINES
The following communication, dated 26 October 2020 , was received from the delegation of the
Philippines with the request that it be circulated to the Dispute Settlement Body (DSB).

The Philippines sets forth below the content of its intervention at the DSB meeting held on
26 October 2020 regarding Item 7 of the agenda, Thailand – Customs and Fiscal Measures on
Cigarettes from the Philippines, particularly the Philippines ' Recourse to Article 22.2 of the DSU

1. Thank you, Mr. Chairman for your report. The Philippines reiterates its sincere appreciation
for the Chair's ongoing efforts.
2. Further to our statements that were delivered in the past four (4) DSB meetings in June, July,
August, and September 2020, we thank the Chair and the DSB Secretariat for the additional
set of questions sent to us on 30 September 2020, which are aimed at seeking to fu rther
explore possible pathways to resolving the parties ' differences, concerning the way forward
with Thailand's pending Article 21.5 appeals and the Philippines ' request under Article 22 of
the DSU, to which both parties sent their responses on 21 Octobe r. The Philippines and
Thailand will also be given the opportunity to comment on each other 's responses by
28 October, one week from today.
3. We hope that this supplemental exchange can finally provide the much-needed clarity to allow
us to move forward with the Philippines' Article 22.2 request, while protecting Thailand's right
to appeal. We trust that the latest responses have not only been helpful in confirming our
respective positions on the issues before us, but also in shedding a bright light on the emerging
means to resolve the impasse at hand.
4. Once again, the Philippines wishes to recall that in the spirit of cooperation and on the Chair's
suggestion, we had presented for consideration a non -exhaustive list of alternative
arrangements, contained in WT/DS371/40 (3 August 2020) that could allow the parties to
fashion a constructive solution that would permit the completion of Thailand's appeals, which
were suspended as a result of the non -functioning Appellate Body. Any such alternative
arrangements should not in any way prejudice the parallel rights of the Philippines under the
DSU to seek automatic and mandatory authorization to suspend concessions.
5. As we have set out in our previous statements under this agenda item, as well as in the
consultations with the DSB Chair, the Philippines has remained open, ready, and willing to
engage constructively with Thailand. However, it should also become clearer to the Chair, and
to the DSB, that Thailand, as the losing party in duly-adopted Panel and AB reports, is utterly
not be able to constructively engage in a solution. We reiterate, therefore, that the burden of
applying the automatic and mandatory rules-based provisions of the DSU will be the duty and
responsibility of the DSB.

6. At this meeting of the DSB, therefore, the Philippines once again asks the DSB to grant the
Philippines the authority it seeks.
7. Mr. Chairman, the provisions of Article 22.6 of the DSU are clear:
• "The DSB, upon request, shall grant authorization to suspend conce ssions or other
obligations within 30 days of the expiry of the reasonable period of time unless the DSB
decides by consensus to reject the request"; and
• "If the Member concerned objects to the level of suspension proposed, […] the matter
shall be referred to arbitration".
8. Therefore, there are only two (2) options under the reverse -consensus rule of DSU
Article 22.6: (1) the DSB granting authorization to suspend concessions, or (2) the DSB
referring the matter to arbitration.
9. Thank you, Mr. Chairman.