THAILAND – CUSTOMS AND FISCAL MEASURES ON CIGARETTES FROM THE PHILIPPINES SECOND RECOURSE TO ARTICLE 21.5 OF THE DSU BY THE PHILIPPINES REPORT OF THE PANEL
Document: REPORT OF THE PANEL
Date: 12 July 2019
Document codes: WT/DS371/RW2
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
SECOND RECOURSE TO ARTICLE 21.5 OF THE DSU BY THE PHILIPPINES
REPORT OF THE PANEL

LIST OF ANNEXES
ANNEX A
PANEL DOCUMENTS
Contents Page
Annex A-1 Working Procedures of the Panel 4
Annex A-2 Interim Review 10
ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 Integrated executive summary of the arguments of the Philippines 58
Annex B-2 Integrated executive summary of the arguments of Thailand 81
ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of the European Union 107
Annex C-2 Integrated executive summary of the arguments of Indonesia 112
Annex C-3 Integrated executive summary of the arguments of Japan 115
Annex C-4 Integrated executive summary of the arguments of the United States 117

WTO CASES CITED IN THIS REPORT
Short title Full case title and citation
Argentina – Textiles and
Apparel
Panel Report, Argentina – Measures Affecting Imports of Footwear,
Textiles, Apparel and Other Items, , adopted 22 April 1998, as
modified by Appellate Body Report , DSR 1998:III, p. 1033
Australia – Apples Appellate Body Report, Australia – Measures Affecting the Importation of
Apples from New Zealand, , adopted 17 December 2010,
DSR 2010:V, p. 2175
Australia – Salmon Panel Report, Australia – Measures Affecting Importation of Salmon,
 and Corr.1, adopted 6 November 1998, as modified by
Appellate Body Report , DSR 1998:VIII, p. 3407
Australia – Tobacco Plain
Packaging (Cuba)
Panel Report, Australia – Certain Measures concerning Trademarks,
Geographical Indications and other Plain Packaging Requirements
applicable to Tobacco Products and Packaging, , Add.1 and
Suppl.1, adopted 27 August 2018
Brazil – Aircraft (Article 22.6 –
Brazil)
Decision by the Arbitrator, Brazil – Export Financing Programme for
Aircraft – Recourse to Arbitration by Brazil under Article 22.6 of the DSU
and Article 4.11 of the SCM Agreement, WT/DS46/ARB, 28 August 2000,
DSR 2002:I, p. 19
Brazil – Desiccated Coconut Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut,
WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, p. 167
Canada – Aircraft Appellate Body Report, Canada – Measures Affecting the Export of Civilian
Aircraft, WT/DS70/AB/R, adopted 20 August 1999, DSR 1999:III, p. 1377
Canada – Aircraft Credits and
Guarantees (Article 22.6 –
Canada)
Decision by the Arbitrator, Canada – Export Credits and Loan Guarantees
for Regional Aircraft – Recourse to Arbitration by Canada under Article
22.6 of the DSU and Article 4.11 of the SCM Agreement, WT/DS222/ARB,
17 February 2003, DSR 2003:III, p. 1187
Canada – Continued
Suspension
Panel Report, Canada – Continued Suspension of Obligations in the EC –
Hormones Dispute, WT/DS321/R and Add.1 to Add.7, adopted 14
November 2008, as modified by Appellate Body Report WT/DS321/AB/R,
DSR 2008:XV, p. 5757
Canada – Wheat Exports and
Grain Imports
Appellate Body Report, Canada – Measures Relating to Exports of Wheat
and Treatment of Imported Grain, WT/DS276/AB/R, adopted 27
September 2004, DSR 2004:VI, p. 2739
China – Broiler Products Panel Report, China − Anti-Dumping and Countervailing Duty Measures on
Broiler Products from the United States, WT/DS427/R and Add.1, adopted
25 September 2013, DSR 2013:IV, p. 1041
China – Electronic Payment
Services
Panel Report, China – Certain Measures Affecting Electronic Payment
Services, WT/DS413/R and Add.1, adopted 31 August 2012, DSR 2012:X,
p. 5305
China – GOES Panel Report, China – Countervailing and Anti-Dumping Duties on Grain
Oriented Flat-Rolled Electrical Steel from the United States, WT/DS414/R
and Add.1, adopted 16 November 2012, upheld by Appellate Body Report
WT/DS414/AB/R, DSR 2012:XII, p. 6369
China – Intellectual Property
Rights
Panel Report, China – Measures Affecting the Protection and Enforcement
of Intellectual Property Rights, WT/DS362/R, adopted 20 March 2009, DSR
2009:V, p. 2097
China – Publications and
Audiovisual Products
Appellate Body Report, China – Measures Affecting Trading Rights and
Distribution Services for Certain Publications and Audiovisual
Entertainment Products, WT/DS363/AB/R, adopted 19 January 2010, DSR
2010:I, p. 3
China – Rare Earths Appellate Body Reports, China – Measures Related to the Exportation of
Rare Earths, Tungsten, and Molybdenum, WT/DS431/AB/R /
WT/DS432/AB/R / WT/DS433/AB/R, adopted 29 August 2014, DSR
2014:III, p. 805
China – Rare Earths Panel Reports, China – Measures Related to the Exportation of Rare Earths,
Tungsten, and Molybdenum, WT/DS431/R and Add.1 / WT/DS432/R and
Add.1 / WT/DS433/R and Add.1, adopted 29 August 2014, upheld by
Appellate Body Reports WT/DS431/AB/R / WT/DS432/AB/R /
WT/DS433/AB/R, DSR 2014:IV, p. 1127

Short title Full case title and citation
China – Raw Materials Appellate Body Reports, China – Measures Related to the Exportation of
Various Raw Materials, WT/DS394/AB/R / WT/DS395/AB/R /
WT/DS398/AB/R, adopted 22 February 2012, DSR 2012:VII, p. 3295
China – Raw Materials Panel Reports, China – Measures Related to the Exportation of Various Raw
Materials, WT/DS394/R, Add.1 and Corr.1 / WT/DS395/R, Add.1 and
Corr.1 / WT/DS398/R, Add.1 and Corr.1, adopted 22 February 2012, as
modified by Appellate Body Reports WT/DS394/AB/R / WT/DS395/AB/R /
WT/DS398/AB/R, DSR 2012:VII, p. 3501
Colombia – Ports of Entry Panel Report, Colombia – Indicative Prices and Restrictions on Ports of
Entry, WT/DS366/R and Corr.1, adopted 20 May 2009, DSR 2009:VI, p.
2535
Colombia – Textiles Appellate Body Report, Colombia – Measures Relating to the Importation of
Textiles, Apparel and Footwear, WT/DS461/AB/R and Add.1, adopted 22
June 2016, DSR 2016:III, p. 1131
Colombia – Textiles (Article
21.5 – Colombia/Panama)
Panel Report, Colombia – Measures Relating to the Importation of Textiles,
Apparel and Footwear – Recourse to Article 21.5 of the DSU by Colombia /
Colombia – Measures Relating to the Importation of Textiles, Apparel and
Footwear – Recourse to Article 21.5 of the DSU by Panama, WT/DS461/RW
and Add.1, circulated to WTO Members 5 October 2018 [appealed by
Panama 20 November 2018]
Dominican Republic – Import
and Sale of Cigarettes
Panel Report, Dominican Republic – Measures Affecting the Importation
and Internal Sale of Cigarettes, WT/DS302/R, adopted 19 May 2005, as
modified by Appellate Body Report WT/DS302/AB/R, DSR 2005:XV, p.
7425
Dominican Republic –
Safeguard Measures
Panel Report, Dominican Republic – Safeguard Measures on Imports of
Polypropylene Bags and Tubular Fabric, WT/DS415/R, WT/DS416/R,
WT/DS417/R, WT/DS418/R, and Add.1, adopted 22 February 2012, DSR
2012:XIII, p. 6775
EC – Approval and Marketing
of Biotech Products
Panel Reports, European Communities – Measures Affecting the Approval
and Marketing of Biotech Products, WT/DS291/R, Add.1 to Add.9 and
Corr.1 / WT/DS292/R, Add.1 to Add.9 and Corr.1 / WT/DS293/R, Add.1 to
Add.9 and Corr.1, adopted 21 November 2006, DSR 2006:III, p. 847
EC – Asbestos Panel Report, European Communities – Measures Affecting Asbestos and
Asbestos-Containing Products, WT/DS135/R and Add.1, adopted 5 April
2001, as modified by Appellate Body Report WT/DS135/AB/R, DSR
2001:VIII, p. 3305
EC – Bananas III Appellate Body Report, European Communities – Regime for the
Importation, Sale and Distribution of Bananas, WT/DS27/AB/R, adopted 25
September 1997, DSR 1997:II, p. 591
EC – Bananas III
(Article 21.5 – Ecuador II /
US)
Appellate Body Reports, European Communities – Regime for the
Importation, Sale and Distribution of Bananas – Second Recourse to
Article 21.5 of the DSU by Ecuador, WT/DS27/AB/RW2/ECU, adopted 11
December 2008, and Corr.1 / European Communities – Regime for the
Importation, Sale and Distribution of Bananas – Recourse to Article 21.5 of
the DSU by the United States, WT/DS27/AB/RW/USA and Corr.1, adopted
22 December 2008, DSR 2008:XVIII, p. 7165
EC – Bananas III
(Article 21.5 – US)
Panel Report, European Communities – Regime for the Importation, Sale
and Distribution of Bananas – Recourse to Article 21.5 of the DSU by the
United States, WT/DS27/RW/USA and Corr.1, adopted 22 December 2008,
upheld by Appellate Body Report WT/DS27/AB/RW/USA, DSR 2008:XIX,
p. 7761
EC – Bed Linen Panel Report, European Communities – Anti-Dumping Duties on Imports of
Cotton-Type Bed Linen from India, WT/DS141/R, adopted 12 March 2001,
as modified by Appellate Body Report WT/DS141/AB/R, DSR 2001:VI,
p. 2077
EC – Bed Linen
(Article 21.5 – India)
Panel Report, European Communities – Anti-Dumping Duties on Imports of
Cotton-Type Bed Linen from India – Recourse to Article 21.5 of the DSU by
India, WT/DS141/RW, adopted 24 April 2003, as modified by Appellate
Body Report WT/DS141/AB/RW, DSR 2003:IV, p. 1269
EC – Fasteners (China) Appellate Body Report, European Communities – Definitive Anti-Dumping
Measures on Certain Iron or Steel Fasteners from China, WT/DS397/AB/R,
adopted 28 July 2011, DSR 2011:VII, p. 3995

Short title Full case title and citation
EC – Fasteners (China) Panel Report, European Communities – Definitive Anti-Dumping Measures
on Certain Iron or Steel Fasteners from China, WT/DS397/R and Corr.1,
adopted 28 July 2011, as modified by Appellate Body Report
WT/DS397/AB/R, DSR 2011:VIII, p. 4289
EC – IT Products Panel Reports, European Communities and its member States – Tariff
Treatment of Certain Information Technology Products, WT/DS375/R /
WT/DS376/R / WT/DS377/R, adopted 21 September 2010, DSR 2010:III,
p. 933
EC – Salmon (Norway) Panel Report, European Communities – Anti-Dumping Measure on Farmed
Salmon from Norway, WT/DS337/R, adopted 15 January 2008, and Corr.1,
DSR 2008:I, p. 3
EC – Seal Products Appellate Body Reports, European Communities – Measures Prohibiting the
Importation and Marketing of Seal Products, WT/DS400/AB/R /
WT/DS401/AB/R, adopted 18 June 2014, DSR 2014:I, p. 7
EC – Selected Customs
Matters
Appellate Body Report, European Communities – Selected Customs
Matters, WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, p.
3791
EC – Trademarks and
Geographical Indications
Panel Reports, European Communities – Protection of Trademarks and
Geographical Indications for Agricultural Products and Foodstuffs,
WT/DS290/R (Australia) / WT/DS174/R (US), adopted 20 April 2005, DSR
2005:VIII, p. 3499 / DSR 2005: X, p. 4603
EC – Tube or Pipe Fittings Appellate Body Report, European Communities – Anti-Dumping Duties on
Malleable Cast Iron Tube or Pipe Fittings from Brazil, WT/DS219/AB/R,
adopted 18 August 2003, DSR 2003:VI, p. 2613
EC – Tube or Pipe Fittings Panel Report, European Communities – Anti-Dumping Duties on Malleable
Cast Iron Tube or Pipe Fittings from Brazil, WT/DS219/R, adopted 18
August 2003, as modified by Appellate Body Report WT/DS219/AB/R, DSR
2003:VII, p. 2701
EC and certain member States
– Large Civil Aircraft
Appellate Body Report, European Communities and Certain Member States
– Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R,
adopted 1 June 2011, DSR 2011:I, p. 7
EC and certain member States
– Large Civil Aircraft
Panel Report, European Communities and Certain Member States –
Measures Affecting Trade in Large Civil Aircraft, WT/DS316/R, adopted
1 June 2011, as modified by Appellate Body Report, WT/DS316/AB/R, DSR
2011:II, p. 685
EU – Energy Package Panel Report, European Union and its member States – Certain Measures
Relating to the Energy Sector, WT/DS476/R and Add.1, circulated to WTO
Members 10 August 2018 [appealed by the European Union 21 September
2018]
EU – Fatty Alcohols
(Indonesia)
Appellate Body Report, European Union – Anti-Dumping Measures on
Imports of Certain Fatty Alcohols from Indonesia, WT/DS442/AB/R and
Add.1, adopted 29 September 2017
EU – Footwear (China) Panel Report, European Union – Anti-Dumping Measures on Certain
Footwear from China, WT/DS405/R, adopted 22 February 2012, DSR
2012:IX, p. 4585
EU – PET (Pakistan) Appellate Body Report, European Union – Countervailing Measures on
Certain Polyethylene Terephthalate from Pakistan, WT/DS486/AB/R and
Add.1, adopted 28 May 2018
EU – PET (Pakistan) Panel Report, European Union – Countervailing Measures on Certain
Polyethylene Terephthalate from Pakistan, WT/DS486/R, Add.1 and Corr.1,
adopted 28 May 2018, as modified by Appellate Body Report

EU – Poultry Meat (China) Panel Report, European Union – Measures Affecting Tariff Concessions on
Certain Poultry Meat Products, WT/DS492/R and Add.1, adopted 19 April
2017
Guatemala – Cement I Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding
Portland Cement from Mexico, WT/DS60/AB/R, adopted 25 November
1998, DSR 1998:IX, p. 3767
Guatemala – Cement II Panel Report, Guatemala – Definitive Anti-Dumping Measures on Grey
Portland Cement from Mexico, WT/DS156/R, adopted 17 November 2000,
DSR 2000:XI, p. 5295

Short title Full case title and citation
India – Patents (US) Appellate Body Report, India – Patent Protection for Pharmaceutical and
Agricultural Chemical Products, WT/DS50/AB/R, adopted 16 January 1998,
DSR 1998:I, p. 9
India – Solar Cells Panel Report, India – Certain Measures Relating to Solar Cells and Solar
Modules, WT/DS456/R and Add.1, adopted 14 October 2016, as modified
by Appellate Body Report WT/DS456/AB/R, DSR 2016:IV, p. 1941
Indonesia – Autos Panel Report, Indonesia – Certain Measures Affecting the Automobile
Industry, WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R, Corr.1 and
Corr.2, adopted 23 July 1998, and Corr.3 and Corr.4, DSR 1998:VI, p.
2201
Indonesia – Chicken Panel Report, Indonesia – Measures Concerning the Importation of Chicken
Meat and Chicken Products, WT/DS484/R and Add.1, adopted 22
November 2017
Indonesia – Iron or Steel
Products
Appellate Body Report, Indonesia – Safeguard on Certain Iron or Steel
Products, WT/DS490/AB/R, WT/DS496/AB/R, and Add.1, adopted 27
August 2018
Indonesia – Iron or Steel
Products
Panel Report, Indonesia – Safeguard on Certain Iron or Steel Products,
WT/DS490/R, WT/DS496/R, and Add.1, adopted 27 August 2018, as
modified by Appellate Body Report WT/DS490/AB/R, WT/DS496/AB/R
Japan – Apples (Article 21.5 –
US)
Panel Report, Japan – Measures Affecting the Importation of Apples –
Recourse to Article 21.5 of the DSU by the United States, WT/DS245/RW,
adopted 20 July 2005, DSR 2005:XVI, p. 7911
Japan – DRAMs (Korea) Panel Report, Japan – Countervailing Duties on Dynamic Random Access
Memories from Korea, WT/DS336/R, adopted 17 December 2007, as
modified by Appellate Body Report WT/DS336/AB/R, DSR 2007:VII, p.
2805
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports
of Certain Dairy Products, WT/DS98/AB/R, adopted 12 January 2000, DSR
2000:I, p. 3
Korea – Dairy Panel Report, Korea – Definitive Safeguard Measure on Imports of Certain
Dairy Products, WT/DS98/R and Corr.1, adopted 12 January 2000, as
modified by Appellate Body Report WT/DS98/AB/R, DSR 2000:I, p. 49
Korea – Radionuclides (Japan) Appellate Body Report, Korea – Import Bans, and Testing and Certification
Requirements for Radionuclides, WT/DS495/AB/R and Add.1, circulated to
WTO Members 11 April 2019
Mexico – Corn Syrup (Article
21.5 – US)
Appellate Body Report, Mexico – Anti-Dumping Investigation of High
Fructose Corn Syrup (HFCS) from the United States – Recourse to Article
21.5 of the DSU by the United States, WT/DS132/AB/RW, adopted 21
November 2001, DSR 2001:XIII, p. 6675
Morocco - Hot-Rolled Steel
(Turkey)
Panel Report, Morocco – Anti-dumping Measures on Certain Hot-Rolled
Steel from Turkey, WT/DS513/R and Add.1, circulated to WTO Members 31
October 2018 [appealed by Morocco 20 November 2018]
Russia – Commercial Vehicles Appellate Body Report, Russia – Anti-Dumping Duties on Light Commercial
Vehicles from Germany and Italy, WT/DS479/AB/R and Add.1, adopted 9
April 2018
Russia – Commercial Vehicles Panel Report, Russia – Anti-Dumping Duties on Light Commercial Vehicles
from Germany and Italy, WT/DS479/R and Add.1, adopted 9 April 2018, as
modified by Appellate Body Report WT/DS479/AB/R
Russia – Railway Equipment Panel Report, Russia – Measures Affecting the Importation of Railway
Equipment and Parts Thereof, WT/DS499/R and Add.1, circulated to WTO
Members 30 July 2018 [appealed by Ukraine 27 August 2018]
Russia – Tariff Treatment Panel Report, Russia – Tariff Treatment of Certain Agricultural and
Manufacturing Products, WT/DS485/R, Add.1, Corr.1, and Corr.2, adopted
26 September 2016, DSR 2016:IV, p. 1547
Thailand – Cigarettes
(Philippines)
Appellate Body Report, Thailand – Customs and Fiscal Measures on
Cigarettes from the Philippines, WT/DS371/AB/R, adopted 15 July 2011,
DSR 2011:IV, p. 2203
Thailand – Cigarettes
(Philippines)
Panel Report, Thailand – Customs and Fiscal Measures on Cigarettes from
the Philippines, WT/DS371/R, adopted 15 July 2011, as modified by
Appellate Body Report WT/DS371/AB/R, DSR 2011:IV, p. 2299

Short title Full case title and citation
Thailand – Cigarettes
(Philippines) (Article 21.5 –
Philippines)
Panel Report, Thailand – Customs and Fiscal Measures on Cigarettes from
the Philippines – Recourse to Article 21.5 of the DSU by the Philippines,
WT/DS371/RW and Add.1, circulated to WTO Members 12 November 2018
[appealed by Thailand 9 January 2019]
US – 1916 Act Appellate Body Report, United States – Anti-Dumping Act of 1916,
WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, DSR
2000:X, p. 4793
US – 1916 Act (Japan) Panel Report, United States – Anti-Dumping Act of 1916, Complaint by
Japan, WT/DS162/R and Add.1, adopted 26 September 2000, upheld by
Appellate Body Report WT/DS136/AB/R, WT/DS162/AB/R, DSR 2000:X, p.
4831
US – Carbon Steel Panel Report, United States – Countervailing Duties on Certain Corrosion-
Resistant Carbon Steel Flat Products from Germany, WT/DS213/R and
Corr.1, adopted 19 December 2002, as modified by Appellate Body Report
WT/DS213/AB/R, DSR 2002:IX, p. 3833
US – Carbon Steel Appellate Body Report, United States – Countervailing Duties on Certain
Corrosion-Resistant Carbon Steel Flat Products from Germany,
WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, p.
3779
US – Clove Cigarettes Panel Report, United States – Measures Affecting the Production and Sale
of Clove Cigarettes, WT/DS406/R, adopted 24 April 2012, as modified by
Appellate Body Report WT/DS406/AB/R, DSR 2012:XI, p. 5865
US – Continued Suspension Panel Report, United States – Continued Suspension of Obligations in the
EC – Hormones Dispute, WT/DS320/R and Add.1 to Add.7, adopted 14
November 2008, as modified by Appellate Body Report WT/DS320/AB/R,
DSR 2008:XI, p. 3891
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and
Application of Zeroing Methodology, WT/DS350/AB/R, adopted 19
February 2009, DSR 2009:III, p. 1291
US – COOL (Article 22.6 –
United States)
Decisions by the Arbitrator, United States – Certain Country of Origin
Labelling (COOL) Requirements – Recourse to Article 22.6 of the DSU the
United States, WT/DS384/ARB and Add.1 / WT/DS386/ARB and Add.1,
circulated to WTO Members 7 December 2015, DSR 2015:XI, p. 5877
US – Countervailing and Anti-
Dumping Measures (China)
Appellate Body Report, United States – Countervailing and Anti-Dumping
Measures on Certain Products from China, WT/DS449/AB/R and Corr.1,
adopted 22 July 2014, DSR 2014:VIII, p. 3027
US – Countervailing Duty
Investigation on DRAMS
Panel Report, United States – Countervailing Duty Investigation on
Dynamic Random Access Memory Semiconductors (DRAMS) from Korea,
WT/DS296/R, adopted 20 July 2005, as modified by Appellate Body Report
WT/DS296/AB/R, DSR 2005:XVII, p. 8243
US – FSC (Article 21.5 – EC) Appellate Body Report, United States – Tax Treatment for "Foreign Sales
Corporations" – Recourse to Article 21.5 of the DSU by the European
Communities, WT/DS108/AB/RW, adopted 29 January 2002, DSR 2002:I,
p. 55
US – Gasoline Panel Report, United States – Standards for Reformulated and
Conventional Gasoline, WT/DS2/R, adopted 20 May 1996, as modified by
Appellate Body Report WT/DS2/AB/R, DSR 1996:I, p. 29
US – Lamb Appellate Body Report, United States – Safeguard Measures on Imports of
Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia,
WT/DS177/AB/R, WT/DS178/AB/R, adopted 16 May 2001, DSR 2001:IX,
p. 4051
US – Large Civil Aircraft (2nd
complaint)
Panel Report, United States – Measures Affecting Trade in Large Civil
Aircraft (Second Complaint), WT/DS353/R, adopted 23 March 2012, as
modified by Appellate Body Report WT/DS353/AB/R, DSR 2012:II, p. 649
US – Large Civil Aircraft (2nd
complaint) (Article 21.5 – EU)
Panel Report, United States – Measures Affecting Trade in Large Civil
Aircraft (Second Complaint) – Recourse to Article 21.5 of the DSU by the
European Union, WT/DS353/RW and Add.1, circulated to WTO Members 9
June 2017 [appealed by the European Union 29 June 2017]
US – Oil Country Tubular
Goods Sunset Reviews
Appellate Body Report, United States – Sunset Reviews of Anti-Dumping
Measures on Oil Country Tubular Goods from Argentina, WT/DS268/AB/R,
adopted 17 December 2004, DSR 2004:VII, p. 3257

Short title Full case title and citation
US – Poultry (China) Panel Report, United States – Certain Measures Affecting Imports of
Poultry from China, WT/DS392/R, adopted 25 October 2010, DSR 2010:V,
p. 1909
US – Section 110(5) Copyright
Act
Panel Report, United States – Section 110(5) of the US Copyright Act,
WT/DS160/R, adopted 27 July 2000, DSR 2000:VIII, p. 3769
US – Section 211
Appropriations Act
Panel Report, United States – Section 211 Omnibus Appropriations Act of
1998, WT/DS176/R, adopted 1 February 2002, as modified by Appellate
Body Report WT/DS176/AB/R, DSR 2002:II, p. 683
US – Shrimp Appellate Body Report, United States – Import Prohibition of Certain
Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998,
DSR 1998:VII, p. 2755
US – Shrimp Panel Report, United States – Import Prohibition of Certain Shrimp and
Shrimp Products, WT/DS58/R and Corr.1, adopted 6 November 1998, as
modified by Appellate Body Report WT/DS58/AB/R, DSR 1998:VII, p. 2821
US – Shrimp (Viet Nam) Panel Report, United States – Anti-Dumping Measures on Certain Shrimp
from Viet Nam, WT/DS404/R, adopted 2 September 2011, DSR 2011:X, p.
5301
US – Softwood Lumber IV Appellate Body Report, United States – Final Countervailing Duty
Determination with Respect to Certain Softwood Lumber from Canada,
WT/DS257/AB/R, adopted 17 February 2004, DSR 2004:II, p. 571
US – Softwood Lumber IV
(Article 21.5 – Canada)
Appellate Body Report, United States – Final Countervailing Duty
Determination with Respect to Certain Softwood Lumber from Canada –
Recourse by Canada to Article 21.5 of the DSU, WT/DS257/AB/RW,
adopted 20 December 2005, DSR 2005:XXIII, p. 11357
US – Softwood Lumber VI
(Article 21.5 – Canada)
Appellate Body Report, United States – Investigation of the International
Trade Commission in Softwood Lumber from Canada – Recourse to Article
21.5 of the DSU by Canada, WT/DS277/AB/RW, adopted 9 May 2006, and
Corr.1, DSR 2006:XI, p. 4865
US – Stainless Steel (Mexico) Panel Report, United States – Final Anti-Dumping Measures on Stainless
Steel from Mexico, WT/DS344/R, adopted 20 May 2008, as modified by
Appellate Body Report WT/DS344/AB/R, DSR 2008:II, p. 599
US – Steel Safeguards Appellate Body Report, United States – Definitive Safeguard Measures on
Imports of Certain Steel Products, WT/DS248/AB/R, WT/DS249/AB/R,
WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R,
WT/DS258/AB/R, WT/DS259/AB/R, adopted 10 December 2003, DSR
2003:VII, p. 3117
US – Tuna II (Mexico) Panel Report, United States – Measures Concerning the Importation,
Marketing and Sale of Tuna and Tuna Products, WT/DS381/R, adopted 13
June 2012, as modified by Appellate Body Report WT/DS381/AB/R, DSR
2012:IV, p. 2013
US – Upland Cotton (Article
21.5 – Brazil)
Appellate Body Report, United States – Subsidies on Upland Cotton –
Recourse to Article 21.5 of the DSU by Brazil, WT/DS267/AB/RW, adopted
20 June 2008, DSR 2008:III, p. 809
US – Zeroing (Japan) (Article
21.5 – Japan)
Appellate Body Report, United States – Measures Relating to Zeroing and
Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan,
WT/DS322/AB/RW, adopted 31 August 2009, DSR 2009:VIII, p. 3441

TABLE OF ABBREVIATIONS
Abbreviation Description
ACWL/Commerce Letters Advisory Centre on WTO Law opinion of 21 May 2012 and related letter of 22
January 2014 from the Thai Ministry of Commerce to Thailand's Attorney
General
Anti-Dumping Agreement Agreement on Implementation of Article VI of the General Agreement on
Tariffs and Trade 1994
BoA Board of Appeals
November 2012 BoA Ruling Board of Appeals Ruling No. GorOr 112/2555/Por9/2555(3.1) of 16 November
2012
2003-2006 Charges The Charges, Case Black No. Or. 185/2559, 18 January 2016
2002-2003 Charges The Charges, Case Black No. Or. 232/2560, 26 January 2017
Customs Act Customs Act B.E. 2469 (1926), as amended
CVA Agreement on Implementation of Article VII of the General Agreement on
Tariffs and Trade 1994
DGCE Indonesian Directorate General of Customs and Excise
DSB Dispute Settlement Body
DSI Department of Special Investigation
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes
GAAP Generally Accepted Accounting Principles
GATT 1994 General Agreement on Tariffs and Trade 1994
HJE Harga Jual Exeran
ILC Articles on State
Responsibility
International Law Commission, Articles on Responsibility of States for
Internationally Wrongful Acts, adopted by the ILC at its fifty-third session, in
2001, published in Yearbook of the International Law Commission, 2001, Vol.
II, Part Two
King Power King Power International Co. Ltd.
Ministerial Decision Ministerial Decision Regarding Cases Where Customs Administrations Have
Reasons to Doubt the Truth or Accuracy of the Declared Value
MoA DSI, Memorandum of Allegations, dated 22 September 2016
Nairobi Convention International Convention on Mutual Administrative Assistance for the
Prevention, Investigation and Repression of Customs Offences (signed in
Nairobi, 9 June 1977, entered into force 21 May 1980)
NoAs Notices of Assessment
P&GE Profits and General Expenses
PM Indonesia Philip Morris Indonesia (also referred to as PTPMI)
PMTL Philip Morris (Thailand) Limited (also referred to as PM Thailand)
PM Philip Morris
PMPMI Philip Morris Philippines Manufacturing Inc.
Revised Kyoto Convention International Convention on the Simplification and Harmonization of
Customs Procedures, done at Kyoto, 18 May 1973, 950 UNTS 269, as
amended by the Protocol of Amendment to the International Convention
on the Simplification and Harmonization of Customs Procedures, done
at Brussels, 26 June 1999, 2370 UNTS 27
September 2012 BoA Ruling Board of Appeals Ruling No. GorOr 81/2555/Por7/2555(4.1) and cover letter
No. GorKor 0519(8) (GotOr), 12 September 2012
THB Thai baht
TTM Thailand Tobacco Monopoly
USD United States dollar

Abbreviation Description
Vienna Convention Vienna Convention on the Law of Treaties, Done at Vienna, 23 May 1969,
WTO World Trade Organization
WTO Agreement Marrakesh Agreement Establishing the World Trade Organization

EXHIBITS CITED IN THIS REPORT

Exhibit
Number
Full Title
PHL-8-B Customs Act (No. 17), B.E. 2543 (2000) (English translation)
PHL-13-B DSI, Memorandum of Allegations, 22 September 2016 (English translation)
PHL-14-B The Criminal Court, Charges, Case Black No. Or. 232/2560, 26 January 2017 (English translation)
PHL-16-B The Reward Giving to Offender Suppression Act. B.E. 2498 (1946) (English translation)
PHL-21-B BoA Ruling, No. GorOr 112/2555/Por9/2555(3.1) and cover letter No. GorKor 0519(8)/(GorOr)/118,
16 November 2012 (English translation)
PHL-32-B Central Tax Court Ruling, 29 October 2014 (English translation)
PHL-34-B Custom Act B.E. 2469 (1926) (as amended to (No. 22) B.E. 2557 (2014)) (English translation)
PHL-98-B Customs Act (No. 11), B.E. 2490 (1947) (English translation)
PHL-99-B Criminal Code, Section 4 of the Amendment Act of the Criminal Code (No. 6) B.E. 2526 (1983)
(English translation)
PHL-240-B Sample Notices of Assessment (English translation)
PHL-241-B TTM Position Paper, 16 November 2017 (English translation)
PHL-243-B Letter from the Public Prosecutor to PMTL, 8 December 2016 (English translation)
PHL-244-B Supreme Court decision on Nov 2012 BoA Ruling of 7 May 2018, 28 December 2017 (English
translation)
PHL-246-B Thai Customs Act B.E. 2560, 14 May 2017 (English translation)
PHL-247-B Letter from PMTL to the Director General of the Customs Department, 14 December 2017 (English
translation)
PHL-248-B a Sample PMTL appeal against the NoAs to the BoA, 26 December 2017 (English translation)
PHL-249-B Sample PMTL appeal against the NoAs to the Excise Department, 28 December 2017 (English
translation)
PHL-250-B Letter from the Customs Department to PMTL, 10 January 2018 (English translation)
PHL-253-B Letter from the DSI to PMTL, 3 June 2011 (English translation)
PHL-254-B Letter from the DSI to PMTL, 11 September 2013 (English translation)
PHL-255-B Witness statement of Dr. Joko Wiyono, 20 April 2012 (English translation)
PHL-256-B Witness statement of Eka Siswani, 3 May 2012 (English translation)
PHL-257-B Letter from the DSI to PMTL, 21 August 2015 (English translation)
PHL-258-B
REV
T&G statement, 11 September 2015 (English translation)
PHL-259-B Decree of the Minister of Finance of the Republic of Indonesia No. 89/KMK.05/2000, 29 March 2000
(English translation)
PHL-260-B Decision of the Director General of Customs and Excise No. KEP-17/BC/2000 (English translation)
PHL-263-B Indonesian Law on Excise, Law No. 11/1995 (English translation)
PHL-264 Example Form CK-21A
PHL-265-B Decision of the Director General of Customs and Excise No. KEP 19/BC/1997 (English translation)
PHL-273-B Annex to the 2002-2003 Charges, 26 January 2017 (English translation)
PHL-275-B Letter from PMTL requesting clarification of the MOA, 7 October 2016 (English translation)
PHL-276-B Letter from the DSI to PMTL, 3 November 2016 (English translation)
PHL-277-B Letter from PMTL to the Public Prosecutor, 14 November 2016 (English translation)
PHL-279-B Request for Fair Treatment and Justice, 4 February 2011 (English translation)
PHL-280-B Letter on evidence and witnesses in relation to CK-21A, 26 September 2013 (English translation)
PHL-281-B Letter from PMTL to the DSI, 4 May 2012 (English translation)
PHL-282-B Letter from PMTL to the Public Prosecutor, 28 October 2016 (English translation)
PHL-292-B Letter from PMTL to the Customs Department, 4 May 2018 (English Translation)
PHL-293-B Letter from the Customs Department to PMTL, 28 May 2018 (English Translation)
PHL-295-B Official Statement from the Indonesian Ministry of Law and Human Rights dated 13 May 2016
(English translation)

Exhibit
Number
Full Title
PHL-296-B BOA Ruling, 30 August 2018 (English Translation)
THA-55 Kyoto Convention on the Simplification and Harmonization of Customs Procedures, Chapter 2
THA-57 Letter from the Thai Customs Department to PMTL, 21 March 2018
THA-58 Letter from the Thai Customs Department to PMTL, 23 March 2018
THA-59 Statement by the Director-General of the Thai Customs Department
THA-67-B Letter from the Director-General of the Customs Department to PMTL, 21 August 2018 (English
Translation)
THA-68 Communication from the World Customs Organization to Thailand's Director of Customs Standards
and Procedure Bureau, 6 July 2018
THA-78 Article 10 of Ley Orgánica de Represión del Contrabando 12/1995 (Organic Act on the Repression of
Smuggling 12/1995)
THA-80 ASEAN Treaty on Mutual Legal Assistance in Criminal Matters 2004
THA-81-B Act on Mutual Assistance in Criminal Matters B.E. 2535 (1992) (English translation)
THA-82-B Regulation of the Central Authority on Providing and Seeking Assistance in Criminal Matters B.E.
2537 (1994), (English translation)
THA-84 Thai Criminal Code B.E. 2499 (1956)
THA-85 Memorandum from the Commissioner of the Philippines' Bureau of Customs, 2018-06-18, 14 June
2018

1 INTRODUCTION
1.1 Prior proceedings in DS371
1.1. This is the Philippines ' second recourse to Article 21.5 of the Understanding on Rules and
Procedures Governing the Settlement of Disputes (DSU) concerning the alleged failure by Thailand
to comply with the Dispute Settlement Body 's (DSB) recommendations and rulings in the original
proceeding in Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines.
1.2. In the original proceeding, the Philippi nes challenged various measures relating to cigarettes
imported into Thailand by Philip Morris (Thailand) Limited (PMTL). These included: (1 ) delays by
Thailand's Board of Appeals (BoA) in resolving appeals brought by PMTL challenging t he Thai
Customs Department's rejection of PMTL's transaction values for 210 entries of cigarettes over the
period 2002 -2003; (2 ) the Thai Customs Department 's determination of customs value for 118
entries over the period 2006 -2007; and (3 ) several measures relati ng to Thailand 's Value-Added
Tax (VAT) regime as applied to domestic and imported cigarettes.1
1.3. In its first recourse to Article 21.5 of the DSU, the Philippines challenged three sets of measures
taken by Thai authorities after the adoption of the panel and Appellate Body reports in the original
proceeding. The three sets of measures included:
a. A ruling by the BoA issued in November 2012. The BoA compared PMTL's profit and general
expenses (P&GE) rate with an industry benchmark P&GE range that the BoA calcul ated.
The BoA found that PMTL 's P&GE rate fell outside of that range, and on that basis
concluded that the price paid by PMTL for 210 entries of cigarettes between 2002-2003
was influenced by the relationship between the buyer and seller. The BoA rejected the
customs value as declared by PMTL, and proceeded to determine a higher customs value
using the so-called deductive method. The Philippines challenged multiple aspects of the
November 2012 BoA Ruling itself, and alleged several procedural violations, under the
Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade
1994 (CVA).
b. A set of criminal charges filed in January 2016 by the Public Prosecutor against PMTL and
seven of its employees. The Charges alleged that PMTL under-declared the customs values
for 272 entries of cigarettes between 2003-2006. The Philippines challenged the substance
of Charges under the CVA, as well as an alleged disclosure of PMTL 's confidential
information to Thai newspapers the day after the Charges were filed.
c. The Ministry of Finance 's administration of the VAT regime for cigarettes. Under this
regime, PMTL was required to notify the average actual market price of its cigarettes in
Thailand for the purpose of determining the base for collecting the VAT on those cigarettes.
The Philippines challenged this notification requirement, including the required timing of
the notification and the government 's refusal to publish an unwritten rule allegedly
followed in implementing this requirement.
1.4. Regarding the November 2012 BoA Ruling, the Panel found that:
a. The BoA violated Articles 1.1 and 1.2(a) of the CVA by rejecting PMTL's declared
transaction values without a valid basis, because the BoA 's comparison of PMTL 's P&GE
rate with the industry P&GE range constructed by the BoA was flawed in a manner that
rendered it ina pt to reveal whether the relationship between PMTL and PM Indonesia 2

1 For a list of the findings made by the panel and the Appellate Body in the original proceeding,
Thailand's declared measures taken to comply, and the three sets of measures that were challenged by the
Philippines in its first recourse to Article 21.5, see Panel Report, Thailand – Cigarettes (Philippines)
(Article 21.5 – Philippines), paras. 1.2-1.9.
2 The full name of PM Indonesia is PT Philip Morris Indonesia (with "PT" being an acronym for a term
that represents a limited liability company in Indonesia). In the Panel Report in the first recourse to
Article 21.5, the Panel referred to the importer in Thailand by the acronym "PMTL". The Panel also used an
acronym to refer to Philip Morris Philippines Manufacturing Inc. (i.e. "PMPMI"). The Panel referred to the
producer/seller based in Indonesia as "PM Indonesia", rather than using the acronym "PTPMI", only to avoid a

influenced the price . Furthermore, the BoA failed to communicate its grounds for
considering that the relationship influenced the price and thereby failed to give PMTL an
opportunity to respond.
b. The BoA violated Article 5.1(a)(i), (ii) and (iv) of the CVA , when applying the deductive
method to determine an alternative customs value, b y failing to deduct appropriate
amounts in respect of P&GE, transport costs and provincial taxes payable.
c. The BoA violated Article 11.3 of the CVA by failing to provide sufficient reasons for its
decision in the Ruling, and also violated Article 16 of the CVA by failing to provide a timely
explanation of how the customs value was determined, following the importer 's request
for an explanation.
1.5. Regarding the Charges, the Panel found that:
a. The Charges violated Articles 1.1 and 1.2(a) of the CVA because they rejected the
importer's declared transactio n values without a valid basis. In particular, the Public
Prosecutor's use of a duty -free operator's prices as a benchmark was not apt to reveal
whether the relationship between the importer and the seller influenced the price.
b. The Charges determined a revised customs value on a basis that was inconsistent with the
customs valuation rules in Articles 2.1 and/or 3.1 of the CVA.
c. The Philippines did not demonstrate that Thai officials were responsible for disclosing
PMTL's import prices to the media contrary to Article 10 of the CVA.
1.6. Regarding the VAT notification requirement, the Panel found that:
a. Thailand violated Article X:1 of the General Agreement on Tariffs and Trade 1994 (GATT
1994) by adopting an administrative ruling of general application without publishing it.
b. Thailand violated Article X:3(a) of the GATT 1994, because it administered its Revenue
Code provisions in an unreason able manner by imposing on cigarette importers a VAT
notification requirement with which it was impossible to ensure compliance and which
exposed importers to potential consequences of non-compliance.
c. Thailand violated Article III:4 of the GATT 1994 by acc ording to imported products less
favourable treatment than that accorded to like domestic products.
1.7. The Report of the Panel in the first recourse to Article 21.5 was circulated on 12 November
2018. On 9 January 2019, Thailand filed an appeal.3
1.2 Complaint by the Philippines
1.8. This second recourse to Article 21.5 was initiated by a request for consultations by the
Philippines dated 21 February 20184, made pursuant to Articles 4 and 21.5 of the DSU, Article XXII:1
of the GATT 1994 , Article 19 of the CVA, and par agraph 1 of the Understanding between the
Philippines and Thailand of 1 June 2012 regarding Procedures under Articles 21 and 22 of the DSU
(Sequencing Agreement).5

potentially confusing proliferation of acronyms. In their submissions in this proceeding, the parties use the
abbreviation "PTPMI" when referring to PM Indonesia. In order to align the terminology used here with that
already used in the Panel Report in the first recourse to Article 21.5, the Panel will refer to the producer/seller
based in Indonesia as "PM Indonesia".
3 See WT/DS371/27.
4 See WT/DS371/21/Rev.1, which replaced and superseded an earlier request for consultations dated
6 July 2017.
5 WT/DS371/16.

1.9. In its request for consultations, the Philippines identified two distinct sets of measures that
were taken by Thailand after the establishment and composition of the Panel in the first recourse to
Article 21.5:
a. Charges filed by the Public Prosecutor against PMTL and one of its former employees on
26 January 2017, in respect of 780 entri es6 of cigarettes imported over the period 2002-
2003 (the 2002-2003 Charges); and
b. 1,052 revised Notices of Assessment ("NoAs") that PMTL received in November 2017 from
Thailand's Customs Department, rejecting PMTL's declared transaction values, and
determining revised customs valu es, for 1,052 entries of cigarettes imported over the
period 2001-2003 (the 1,052 revised NoAs).
1.10. Both the 2002-2003 Charges and the 1,052 revised NoAs rest on the same basis, namely the
calculation, by the Thai Department of Special Investigation (DSI) , of the "actual" price/value of
PMTL's imports of cigarettes over the 2001-2003 period. Whereas the 2003-2006 Charges at issue
in the first recourse to Article 21.5 alleged that PMTL under-declared its customs values by reference
to the selling price of a duty -free operator (King Power), t he DSI is said to have calculated the
"actual" price/value of the entries subject to the 2002 -2003 Charges based on certain pricing and
cost information reported by the producer and seller of the cigarettes at is sue, PM Indonesia, to
Indonesian tax authorities in the CK-21A form.7 The 2002-2003 Charges refer to the "actual price"
of the cigarettes imported by P MTL, whereas the 1,052 revised NoAs refer to the "actual value" of
those cigarettes.
1.3 Panel establishment and composition
1.11. The Philippines and Thailand held consultations on 12 March 2018. On 14 March 2018, the
Philippines requested the establishment of a c ompliance panel with standard terms of reference,
pursuant to Articles 6 and 21.5 of the DSU, Article XXIII of the GATT 1994, Article 19 of the CVA,
and paragraph 1 of the Sequencing Agreement. 8 At its meeting on 27 March 2018, the DSB
established a second compliance panel to examine the matter raised by the Philippines in document

1.12. The Panel's terms of reference are the following:
To examine, in the light of the relevant provisions of the covered agreements cited by
the parties to the dispute, the matter referred to the DSB by the Philippines in document
WT/DS371/22 and to make such findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in those agreements.10

6 In its panel request, the Philippines indicates that the Charges cover 779 entries. (Panel request,
paras. 18 and 19.) In its first written submission, the Philippines clarified that the Charges cover 780 entries,
including 779 entries that overlap with the 1,052 revised NoAs, and one additional entry which does not. (See
e.g. Philippines' first written submission, paras. 9, 28, and 69.) Thailand has not taken issue with this
correction. The Panel has reviewed the Charges, and they indeed state that "[t]he incidents in the above
Clauses 2.1-2.780 constituted 780 offenses". (The Criminal Court, Charges, Case Black No. Or. 232/2560,
26 January 2017 (English translation), (Exhibit PHL-14-B), p. 2.) The Annex to the Charges likewise presents
data on 780 entries. (Annex to the 2002-2003 Charges, 26 January 2017 (English translation), (Exhibit PHL-
273-B).)
7 The Panel provides detailed information on the nature of the CK-21A form in the context of its findings
in Section 7.2 (The Thai authorities' reliance on the information in the CK-21A forms) of the Report. During the
proceeding, the Philippines raised doubts about whether Thailand had actually received the information
contained in CK-21A forms from Indonesia. In its comments on the draft descriptive part of the Report, the
Philippines considered it appropriate to reflect these doubts by suggesting that the paragraphs containing the
Panel's description of Thailand's reliance on information obtained from Indonesian authorities be qualified with
phrases and terms such as "is said to have", "said to be", "asserted" and "allegedly". The Panel considers this
to be the more neutral formulation for purposes of the descriptive part, and has made this change. The Panel
elaborates on this issue below in Section 7.1.4.2 (Relevance of the presumption of good faith to accepting the
veracity of Thailand's representations).
8 WT/DS371/22.
9 WT/DSB/M/410.
10 WT/DS371/23.

1.13. On 9 May 2018, the parties agreed that the panel would be composed as follows11:
Chairperson: Mr Thomas Cottier

Members: Mr Alvaro Espinoza
 Mr Alvaro Hansen

1.14. Australia, China, Colombia, the European Union, India, Indonesia, Japan, the Russian
Federation, Singapore, and the United Sta tes notified their interest in participating in the Panel
proceedings as third parties.
1.4 Panel proceedings
1.4.1 General
1.15. The Panel adopted its Working Procedures and a partial timetable on 24 May 2018, based on
the drafts jointly proposed by the parties.12
1.16. The Panel held its substantive meeting with the parties on 29 -30 October 2018, including a
session with the third parties which took place on 30 October 2018. On 7 January 2019, the Panel
issued the descriptive part of its Report to the parties. The Panel issued its Interim Report to the
parties on 4 March 2019. The Panel issued its Final Report to the parties on 23 April 2019.
1.17. The Panel was confronted with a number of contentious procedural issues during the
proceeding. These included the issue of third -party access to the confidential Final Report,
submissions and exhibits in the first recourse to Article 21.5; several issues arising from the
Philippines' request for copies of communications between Indonesian and Thai government officials;
and Thailand's request that the Panel decline to rule on certain legal claims that, in its view, were
not adequately specified in the panel request or raised in a timely manner. The Panel ruled on the
first two sets of issues during the proceeding, and those rulings are recapitulated in relevant part
below. The Panel recalls the procedural aspects of Thailand's terms of reference objections below,
and addresses the substance of those objections below in Section 7.1.3.3 (The Philippines'
alternative claims under Article 7.1 of the CVA).
1.4.2 Third-party access to the confidential Final Report, submissions and exhibits in the
first recourse to Article 21.5
1.18. The Final Report of the Panel in the Philippines' first recourse to Article 21.5 was issued to the
parties on 12 March 2018. At that time, the Secretariat informed the parties that it expected that
the Final Report would not be translated and circulated before the last quarter of 2018.
1.19. On 15 May 2018, the Philippines requested that the Members participating as third parties in
this second recourse to A rticle 21.5 of the DSU be granted access to the confidential Final Report
prior to its circulation. On 24 May 2018, the Panel issued a procedural ruling granting the Philippines'
request. The Panel elaborated the reasons for granting the request in its procedural ruling, which it
circulated to the DSB on 1 June 2018.13
1.20. On 29 May 2018, Thailand suggested that it would be in line with the Panel's procedural ruling
if the parties were to assume the obligation to provide to third parties, upon request, copies of all
the parties' submissions and exhibits from the first recourse to Article 21.5. Thailand suggested that
the Panel amend its Working Procedures to that effect, and the Philippines responded that it had no

11 As Mr Roberto Carvalho de Azevêdo and Mr Richard Gottlieb, both original panellists, were no longer
available, they were replaced in the first recourse to Article 21.5 by Mr Thomas Cottier and Mr Alvaro Espinoza,
respectively.
12 The Panel's Working Procedures, as amended on 30 May 2018, are reproduced in Annex A-1.
13 WT/DS371/24. The Panel also annexed its ruling to the Report of the Panel in the first recourse to
Article 21.5. See Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), Annex A-3.

objection to Thailand's proposal.14 On 30 May 2018, the Panel amended its Working Procedures to
include the language proposed by Thailand.15
1.4.3 The Philippines' request for copies of communications between Indonesian and Thai
government officials
1.4.3.1 Thailand's objection to the Philippines' letter of 24 September 2018
1.21. As indicated above, the 2002-2003 Charges and the 1,052 revised NoAs contain figures on
the "actual price" and "actual value" of PMTL's imports of cigarettes over the 2001-2003 period that
the Thai authorities are said to have calculated using pricing and cost information reported by
PM Indonesia to the Indonesian tax authorities in the CK-21A form. In a set of pre-hearing written
questions sent to the parties on 17 September 2018, the Panel sought clarification of certain issues
relating to the Thai authorities' asserted reliance on the pricing and cost information reported by PM
Indonesia to Indonesian tax authorities in the CK -21A form. The timetable adopted by the Panel
provided that the parties would submit their written responses to those questions on 8 October
2018.
1.22. On 24 September 2018, the Philippines sent a letter t o Th ailand, copied to the Panel,
expressing its hope that, when Thailand responded to the Panel 's questions, it would "provid[e]
copies of its communications with Indonesia to establish how Indonesia described the relevant CK -
21A information, as well as the CK-21A forms". On 25 September 2018, Thailand objected that the
Philippines' letter "submits additional comments not contempla ted in the Panel 's timetable", and
requested the Panel "to exclude the Philippines ' letter from the Panel 's record and not to take the
comments made in that letter into consideration during the course of this compliance proceeding".
1.23. In a communication dated 27 September 2018, the Panel informed the parties that:
In response to Thailand 's request, the Panel hereby confirms that any substantive
comments that a party wishes to make on the factual or legal issues in dispute will be
taken into account by the Panel only insofar as those comments are made in the context
of a written or oral submission that is scheduled according to the timetable, in the
context of an unscheduled submission that the Panel has previously granted leave to
file, or in the context of procedural request addressed to the Panel.
The Panel notes that the Philippines ' letter of 24 September 2018 is addressed to
Thailand, and not to the Panel. The letter is forward-looking, and concerns information
that, in the Philippines ' view, Thailand cou ld usefully provide in its responses to the
Panel's questions due on 8 October 2018. At this time, the Philippines has made no
request, pursuant to Article 13 of the DSU, that the Panel seek from Thailand the
information referenced in the Philippines' letter of 24 September 2018.
Accordingly, the Panel expects that, insofar as the Philippines wishes for the Panel to
take into consideration any of the comments contained in the Philippines ' letter of
24 September 2018, the Philippines will proceed to make those comments in the context
of its responses to the Panel's questions due on 8 October 2018 or in its oral submissions
at the meeting with the Panel, and/or in the context of a future request, made pursuant
to Article 13 of the DSU, that is addressed to the Panel. If the Philippines does so, then

14 The Philippines stated that, while it had no objection to amending the Working Procedures as
suggested by Thailand, such amendment was not a necessary pre-condition for the parties granting the third
parties access to their submissions and exhibits from the first compliance proceeding. In this regard, the
Philippines observed that either party could simply include its submissions and exhibits from the first
compliance proceedings as exhibits to its submissions in this second compliance proceeding (which the
Philippines itself had already done in connection with its first written submission).
15 The Panel accepted Thailand's proposed amendment primarily for administrative reasons, to avoid the
parties resubmitting all of their submissions and exhibits from the first recourse to Article 21.5 as new exhibits
in this second recourse to Article 21.5. As communicated to the parties on 30 May 2018, the result of the
amendment to the Working Procedures was that if either party referred to an exhibit or submission from the
first compliance panel proceeding, that party was not required to resubmit a copy of that exhibit or submission
to the Panel or the other party; however, if any third party requested that a party provide it with a copy of a
submission or exhibit from the first compliance panel proceeding, that party would provide it directly to the
requesting third party.

Thailand's request of 25 September 2018 will be rendered moot; and if not, then the
comments made in the Philippines ' letter of 24 September 2018 will not be taken into
account by the Panel in its resolution of the matter before it.
1.24. On 1 October 2018, Thailand sent an email to the Panel indicating its dissatisfaction with the
Panel's response. Thailand stated that it had requested the Panel ( 1) "to exclude the Philippines '
letter from the record "; and (2) "not to take the comments made in that letter into consideration
during the course of this compliance proceeding". Thailand indicated that the Panel's communication
of 27 September 2018 addressed only the second point, and that it was "ambiguous from the Panel's
communication whether the Philippines ' letter would be immediately removed from the record ".
Thailand requested the Panel "to address [its] request to exclude the Philippines ' letter from the
record".
1.25. The Panel resp onded with a communication dated 9 October 2018, following the receipt of
the parties ' written responses to the pre -hearing questions. In that communication, t he Panel
informed the parties that it understood its prior communication to fully and efficiently dispose of the
matter raised by Thailand in its email request of 25 September 2018. The Panel further observed
that Thailand's initial request had by that time "become moot, as a consequence of the Philippines
reiterating the substantive comments initially made in its letter of 24 September 2018 in its
comments on Panel question No. 143". However, the Panel clarified that:
[A]s regards Thailand's request that the Panel "exclude the Philippines' letter from the
record and not to take the comments made in that letter into consideration during the
course of this compliance proceeding", the Panel refrained from specifically addressing
the italicized element of Thailand's request in the interest of economy of expression. It
was not clear that this sentence embodied two distinct requests, as Thailand maintains
in its follow-up email request of 1 October 2018. The Panel did not consider it essential
to clarify the intended meaning of Thailand's email request, and whether this sentence
presents two ways of saying the same thing, because in any event the practical effect
of declaring that the letter was "excluded from the record " would be the same as the
Panel's confirmation that "the comments made in the Philippines ' letter of
24 September 2018 will not be ta ken into account by the Panel in its resolution of the
matter before it" except and insofar as the Philippines makes them in the context of a
subsequent authorized submission or procedural request addressed to the Panel. In
both scenarios, it would mean that the Panel would not take into account the substantive
comments made in that letter. Thus, in the interest of disposing of the matter raised in
the most economical way, the Panel did not consider it necessary or useful for its
communication to engage in a discussion of this aspect of th e sentence referred to
above.
However, in the light of Thailand 's subsequent insistence that we specifically rule on
this aspect of its request, and its statement that it is "ambiguous from the Panel 's
communication whether the Philippines' letter would be immediately removed from the
record", we consider it necessary to clarify that t he Panel did not and will not exclude
the Philippines ' letter of 24 September 2018 from the official record of this dispute
settlement proceeding. It appears that Thailand is requesting the Panel to remove the
electronic and paper copies of the letter from the official record of the dispute. We note
that, in the light of Rule 25(2)(c) of the Working Procedures for Appellate Review, it is
doubtful that a panel could instruct the Secretariat to remove the electronic and paper
copies of any party correspondence from the official record of a dispute. 16 However,
even assuming for the sake of argument that there may be circumstances in which a
panel would have the authority to exclude a document from the record in the manner
suggested by Thailand, there is no requirement in WTO dispute settlement practice that
a panel rule that a document be removed from "the record" of a panel proceeding as a
pre-condition for the panel excluding the contents of a document submitted to a panel

16 (footnote original) Indeed, in the event that either party were to appeal the manner in which the
Panel has disposed of Thailand's request, deleting the Philippines' letter of 24 September 2018 from the official
record of the dispute would arguably violate the parties' due process rights insofar as it would hinder the
Appellate Body's ability to meaningfully review whether the Panel committed any error of law or legal
interpretation.

from its consideration of the matter before it. As one panel has recently observed, "the
mere fact that exhibits submitted by parties may form part of the panel record in no
way implies any judgment by the Panel on the relevance, accuracy or value of their
contents to the issues before the Panel".17
1.26. In its opening oral statement at the substantive meeting with the parties, Thailand expressed
its dissatisfaction with the Panel 's response. Specifically, Thailand stated that it had "due process
concerns" with the Panel's response to the Philippines' actions, which in Thailand's view "failed (i) to
state that the Parties are expected to follow the Working Procedures; (ii) to recognize that the
Philippines did not do so in this respect; and (iii) to take any steps to correct the Philippines '
failure".18 Thailand did not make any further request to the Panel, on this issue and the Panel did
not consider that there was any further issue to resolve in this connection.
1.4.3.2 The Philippines' DSU Article 13 request of 19 October 2018
1.27. On 19 October 2018, the Philippines submitted a request for the Panel to exercise its authority
under Article 13 of the DSU. The Philippines explains that its request was prompted by two factors.
First, the Philippines had become aware of an official statement from the Indonesian government
relating to Thailand's request for CK -21A information, in which the Indonesian government stated
that it had been unable to provide, amongst others, PM Indonesia's the CK-21A information for the
period 1999-2003. Second, the Philippines considered anomalous certain features of the "sample
calculation" provided in Exhibit THA-74, which was submitted by Thailand with its responses to the
Panel's questions on 8 October 2018. In its request of 19 October 2018, the Philippines requested
that the Panel seek, in advance of the meeting with the parties scheduled for 29 October 2018, the
following information from Thailand:
a. Copies of PM Indonesia 's CK -8 or CK -21A information from the period 2001 -2003 for
Marlboro and L&M brands obtained from the Government of Indonesia, if any, and copies
of communications from the Government of Indonesia, in which the CK -8 or CK -21A
information was provided to Thailand;
b. Copies of the "cigarette cost structure of PT Philip Morris Indonesia obtained from the
Indonesian government " referenced in Thailand 's first written submission, if that
information is different from the information identified above, together with copies of
communications from the Government of Indonesia in which this information was provided
to Thailand; and
c. Copies of the evidentiary basis for Thailand's "sample calculation" provided in Exhibit THA-
74.
1.28. On 22 October 2018, the Panel invite d Thailand to respond to the Philippines ' request in
advance of the substantive meeting if Thailand so wished, but noted that Thailand was not required
to do so in view of the limited timeframe. The Panel indicated that both parties would have the
opportunity to address the issues raised by the Philippines' request at the meeting, when delivering
their opening statements, when asking or responding to associated questions to one another, and/or
when responding to any associated oral questions from the Panel. The Panel indicated that it would
rule on the Philippines ' request at or following the mee ting with the parties, once it was satisfied
that both parties have had a full and meaningful opportunity to express their views.
1.29. At the substantive meeting, Thailand indicated that it would be willing to provide all the
requested information to the Philippines and to the Panel, on the condition that the Panel adopt
special procedures to protect the confidentiality of the information. At the end of the meeting, the
parties indicated that they would aim to resolve the issue bilaterally through agreed proced ures by
1 November 2018. The parties informed the Panel in writing, on 1 November, that they had consulted
bilaterally and expressed that, regrettably, they had not been able to reach agreement. Each party
proposed a different set of confidentiality procedures for the Panel's consideration, along with their
respective explanations of and argumentation on their points of disagreement.

17 (footnote original) Panel Report, Russia – Railway Equipment, para. 7.210.
18 Thailand's opening statement at the meeting of the Panel, para. 2.2.

1.30. On 2 November 2018, the Panel informed the parties of its decision to decline the Philippines'
request that the Panel exercise its authority pursuant to Article 13 of the DSU to seek the further
information identified by the Philippines regarding the CK -21A forms, and that the Panel therefore
considered it unnecessary to mediate the parties ' disagreement o n the scope of any ancillary
confidentiality procedures. The Panel's communication indicated that it would elaborate on the
reasons in the Report, but explained that:
… Article 13 of the DSU is entitled "Right to Seek Information". Article 13.1 states that
"[a] Member should respond promptly and fully to any request by a panel for such
information as the panel considers necessary and appropriate." The text of Article 13.1
refers to information that is "necessary", and several panels have declined to exercise
their authority under Article 13 to request information that, while potentially relevant,
did not appear "necessary" for the Panel to make an objective assessment of the matter
before it.19
Having carefully considered the Philippines' request, and the views of both parties, the
Panel does not consider that access to the information referred to by the Philippines is
necessary for the Panel to make an objective assessment of the matter before it. In this
regard, the Panel notes that the Philippines' claims under the CVA are premised on the
understanding that the Thai authorities relied on the pricing/cost information reported
by PM Indonesia in the CK-21A forms to determine the "actual price" in the [2002-2003]
Charges and the "actual value " in the 1,052 revised N oAs, and that Thailand has
repeatedly represented to the Panel that this understanding is correct. The Panel further
notes the Philippines confirmation at the hearing, reiterated in its communication to the
Panel dated 1 November 2018, that the information it identifies would serve to
substantiate assertions that Thailand has made, but that the information is not
necessary for the Philippines to make its own prima facie case.
1.4.4 Thailand's objection concerning the Panel's terms of reference
1.31. In its opening sta tement at th e meeting of the Pane l on 29 October 2018 , the Philippines
stated that the Charges and the 1,052 revised NoAs are inconsistent with Articles 1.1, 1.2(a), 6 and
7 of the CVA. Thailand reacted to the Philippines ' opening statement by objecting to the reference
to a claim of inconsistency under Article 7. Thailand stated that it was too late for the Philippines to
raise a claim under Article 7, and that in any event the vague reference to Article 7 in the panel
request does not meet the minimum requirements of Article 6.2 of the DSU. At the meeting, t he
Philippines expressed its disagreement on both points and added that it had already raised this claim
in its earlier submissions, and indicated that if Thailand wish ed to raise this objection it should
provide its views in writing.
1.32. On 2 November 2018, Thailand filed a communication regarding the scope of the claims
advanced by the Philippines. In this commun ication, Thailand elaborated on its argument that no
claim under Article 7 had been presented in a timely manner, and was in any event not specified in
the panel request as required by Article 6.2 of the DSU. The Panel invited the Philippines to submit
its response on 22 November 2018, along with its written responses to the post-hearing questions,
and afforded each party the opportunity to submit a second round of comments after that. Thailand
did not request that the Panel rule on this issue before the issuance of the Report.
1.33. In its comments on the draft descripti ve part, Thailand requested that the Panel reflect that
no claim under Article 7 appeared in the concluding paragraphs of the Philippines' first and second
written submissions where it made its request for legal findings. 20 In its comments on the draft
descriptive part, the Philippines requested that the Panel reflect that it has made a second alternative
claim under Article 7.1, namely that " Thailand violated Article 7 by determining the customs value
under Article 7 without having followed, in a sequential manner, the hierarchy of methods provided
for in the CVA".21 In their subsequent comments, both parties objected to one another's requests.

19 (footnote original) See e.g. Panel Reports, EC – Seal Products, para. 7.79. See also Panel Report,
US-– Large Civil Aircraft (2nd complaint), para. 7.23, and Panel Report, Australia – Tobacco Plain Packaging
(Cuba), para. 1.75.
20 Thailand's comments on the draft descriptive part, paras. 2.5-2.6.
21 Philippines' comments on the draft descriptive part, para. 15.

1.34. The Panel addresses these terms of reference issues below in Section 7.1.3.3 (The Philippines'
alternative claims under Article 7.1 of the CVA).
2 FACTUAL ASPECTS
2.1 Introduction
2.1. This section identifies the entities whose actions are at issue in this dispute , including the
foreign and domestic companies involved in the Thai cigarette market, and relevant Thai government
agencies. It then broadly identifies the measures at issue in this dispute. A more detailed assessment
of the facts, including the background and content of the challenged measures, will be provided in
the context of the Findings in Section 7 of this Report.
2.2 PMTL and the relevant Thai government agencies
2.2. PMTL operates in Thailand as a branch of fice of a US corporation. 22 PMTL is the exclusive
importer of Philip Morris cigarettes in Thailand, including the Marlboro and L&M brands, which PMTL
distributes to wholesalers and retailers.23 PMTL currently imports virtually all of its cigarettes from a
related supplier based in the Philippines, referred to as Philip Morris Philippines Manufacturing Inc.
(PMPMI).24 PMTL previously imported cigarettes from a related supplier based in Indonesia, i.e. PM
Indonesia. The two sets of measures at issue in this proc eeding concern imports that took place in
the period 2001-2003 during which PMTL imported its cigarettes from PM Indonesia.25
2.3. The Thai Customs Department, which is part of Thailand 's Ministry of Finance, is the agency
authorized under Thai law to determine the value of goods for customs purposes. 26 The BoA, an
authority within the Customs Department, hears appeals from importers or exporters in relation to
initial customs valuation decisions by the Customs Department.27
2.4. As discussed in the first recourse to Article 21.5, in the Thai cigarette market, PMTL competes
with an entity formerly known as the Thailand Tobacco Monopoly (TTM), known now as the Tobacco
Authority of Thailand. 28 TTM, which in and of itself is not a relevant agency for purposes o f the
measures and claims in this second recourse to Article 21.5, is owned and operated by Thailand 's
Ministry of Finance, the same agency authorized under Thai law to determine the value of goods for
customs purposes. TTM enjoys a monopoly over the production of cigarettes in Thailand, and is the
dominant force in the Thai cigarette market. As TTM explains in a 2017 position paper, it "has
maintained its market share of 79% over all other competitors (which a re foreign cigarette
companies)".29
2.5. The DSI and the Thai Public Prosecutor are different agencies within the central government
with responsibilities relating to the investigation and prosecution of criminal offences. 30 Their
respective mandates extend to the investigation and prosecution of criminal of fences under
Section 27 of the Thai Customs Act, which criminalizes acts "to avoid or attempt to avoid the
payment … of any duties … with the intention to defraud the government tax of His Majesty the King
which must be paid for such goods".31 The DSI, which is a unit within the Ministry of Justice, assumes

22 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 2.2; Philippines'
first written submission, footnote 1.
23 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 2.2; Philippines'
first written submission, footnote 1.
24 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 2.2; Philippines'
first written submission, footnote 1.
26 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 2.4.
27 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 2.4.
28 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 2.3; Philippines'
first written submission, para. 3.
29 TTM Position Paper, 16 November 2017 (English translation), (Exhibit PHL-241-B), p. 3.
30 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 2.5.
31 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 2.5.

the investigative function32, and the Public Prosecutor is responsible for the prosecution of criminal
offences.33
2.3 The measures challenged in this proceeding
2.6. The measures at issue in this second compliance panel proceeding, which were issued after the
establishment and composition of the Panel in the first recourse to Article 21.5, are the following:
a. the Charges filed by the Public Prosecutor against PMTL and one of its former employees
on 26 January 2017, in respect of 780 entries of cigarettes imported in 2002 -2003,
including:
i. various substantive aspects of the customs valuation determination allegedly reflected
in the Charges; and
ii. a procedural aspect relating to the Charges, specifically the Public Prosecutor's alleged
failure to communicate to PMTL , before the issuance of the Charges, its grounds for
considering that the relationship between the buyer and seller influenced the price and
provide an opportunity to PMTL to respond to those grounds.
b. the 1,052 revised NoAs that PMTL received in November 2017 from Thailand 's Customs
Department, rejecting PMTL 's declared transaction values, and determining revised
customs values, for 1,052 entries of cigarettes imported over the period 2001 -2003,
including:
i. various substantive aspects of the customs valuation determination reflected in the
revised NoAs; and
ii. various procedural aspects relating to the revised NoAs, including the Customs
Department's alleged failure to communicate to PMTL , before the issuance of the
revised NoAs, its grounds for considering that the relationship between the buyer and
seller influenced the price and provide an opportunity to PMTL to respond to those
grounds, and the Customs Department 's alleged failure to provide, after issuance of
the revised NoAs, a sufficient explanation to PMTL, in writing, as to how t he customs
value was determined.
2.7. While the 2002-2003 Charges and the 1,052 revised NoAs rest on the same asserted basis
(i.e. pricing and cost information said to be reported by PM Indonesia to Indonesian tax authorities
in the CK-21A form), they are distinct measures, issued by different organs and on different dates.
The Charges were filed by the Public Prosecutor in January 2017, while the NoAs were issued by the
Customs Department in November 2017. Of the 780 entries covered by the Charges, 779 are also
subject to the revised NoAs, but the revised NoAs cover 273 additional entries not subject to the
Charges.
3 PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
3.1. The Philippines requests the Panel to find as follows:
a. the "actual price" in the 2002-2003 Charges and the "actual value" in the 1,052 revised
NoAs reflect the Thai authorities ' rejection of PMTL 's transaction values and t heir
determination of revised customs values allegedly based on the information reported by
PM Indonesia to Indonesian tax authorities in excise tax form CK -21A, and this violates
the following provisions of the CVA:
i. Article 1.1 and the substantive obligation in Article 1.2(a), second sentence, because
the Thai authorities' rejection of PMTL's transaction values based on the information

32 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 2.5.
33 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 2.5.

in the CK -21A form s constitutes a failure to conduct a proper examination of the
circumstances surrounding the sale;
ii. Article 1.1 and the procedural obligation in Article 1.2(a), third sentence, because the
Thai authorities failed to communicate to PMTL the grounds for considering that its
relationship to PM Indonesia influenced its transaction values, and consequently failed
to give PMTL an opportunity to respond to those grounds;
iii. Articles 2 to 634, because after rejecting PMTL's transaction values the Thai authorities
proceeded to determine revised customs values based on Article 6, without following,
in a s equential manner, the hierarchy of methods for valuation provided for in the
CVA;
iv. Article 6.1 by determining revised customs values inconsistently with the requirements
of that provision;
v. alternatively, insofar as the Thai authorities used the customs val uation method in
Article 7 to determine the value of PMTL's goods, as opposed to determining a revised
customs value on the basis of Article 6, the 2002-2003 Charges and the 1,052 revised
NoAs are inconsistent with Article 7.135;
b. regarding the 1,052 revised NoAs specifically, the Customs Department violated the
procedural obligation in Article 16 by failing to provide an adequate explanation of how
the customs value was determined following a written request by PMTL.
3.2. Thailand requests the Panel to reject all the Philippines' claims, on the basis that:
a. the Philippines' alternative claim under Article 7.1 of the CVA is not properly before the
Panel because this claim was not raised in a timely manner or adequately specified in the
panel request;
b. the Panel should not assess the merits of the Philippines's claims regarding the 2002-2003
Charges, because:
i. there is insufficient information concerning these Charges to allow the Philippines to
make a prima facie case by identifying the precise content of that measure;
ii. the CVA is not applicable to these Charges because the Public Prosecutor is not part of
Thailand's "customs administration", and because the Charges allege "customs fraud"
and do not determine "the value of goods " and are not "for the purpose of lev ying
ad valorem duties of customs" in the sense of Article 15.1(a) of the CVA;
c. even if the CVA is applicable to the 2002-2003 Charges, there is no inconsistency with the
CVA obligations at issue because:
i. the Public Prosecutor did not violate Article 1.2(a), second sentence, by rejecting
PMTL's declared transaction values based on the information said to be reported by
PM Indonesia to Indonesian tax authorities in excise tax form CK-21A;
ii. the Public Prosecut or was not subject to the procedural obligation in Article 1.2(a),
third sentence, and in any event the Thai authorities did sufficiently communicate to
PMTL the grounds for considering that its relationship to PM Indonesia influenced its
transaction values, and gave PMTL an opportunity to respond to those grounds;

34 The Philippines states that "[i]f Thailand applied Article 7, it further violated the sequential ordering
obligations by skipping the methodology in Article 6, without explanation". (Philippines' response to Panel
question No. 157, para. 265.) As noted above, in its comments on the draft descriptive part, the Philippines
requested that this additional, alternative claim be reflected here. Thailand objected. The Panel addresses this
issue in paragraph 7.53.
35 The Panel recalls that, as indicated above, the Philippines' additional alternative claim under
Article 7.1 is the subject of an objection by Thailand.

iii. the circumstances of the present case are such that none of the alternative methods
in Articles 2 , 3 or 5 could be used to determine revised customs values for PMTL 's
imports;
iv. the Public Prosec utor applied the computed value method to determine revised
customs values with "a reasonable flexibility" as permitted under Article 7 of the CVA;
d. even if the Panel were to find that the Charges fall within the scope of, and are inconsistent
with, the pro visions of the CVA , they are justified under the general exceptions of
Articles XX(d) and XX(a) of the GATT 1994;
e. the 1,052 revised NoAs were withdrawn before the Panel was established, and therefore
the Panel should decline to rule on them;
f. if the Panel elects to rule on some or all of the 1,052 revised NoAs, then:
i. Thailand's arguments in respect of the CVA-consistency of the Charges apply mutatis
mutandis to the Philippines' corresponding claims regarding the NoAs; and
ii. the Philippines has failed to demonstrate that Thailand has acted inconsistently with
Article 16 because , following the request by PMTL, the Thai Customs Department
sufficiently explained the grounds for issuing the NoAs.
4 ARGUMENTS OF THE PARTIES
4.1. The arguments of the parties are reflected in their executive summaries, provided to the Panel
in accordance with paragraph 31 of the Working Procedures adopted by the Panel (see Annexes B-1
and B-2).
5 ARGUMENTS OF THE THIRD PARTIES
5.1. The arguments of the European Union, Indonesia, Japan, and the United States are reflected
in their executive summaries, provided in accordance with paragraph 32 of the Working Procedures
adopted by the Panel (see Annexes C-1, C-2, C-3, and C-4).36 Australia, China, Colombia, India, the
Russian Federation, and Singapore did not make a written submission or oral statement to the Panel.
6 INTERIM REVIEW
6.1. On 4 March 2019, the Panel issued its Interim Report to the parties. On 18 March 2019, the
Philippines and Thailand each submitted written requests for the Panel to review aspects of the
Interim Report. On 1 April 2019, each party submitted comments on the other's requests for review.
Neither party requested an interim review meeting.
6.2. The parties' requests made at the interim review stage as well as the Panel's discussion and
disposition of those requests are set out in Annex A-2.

36 Paragraph 32 of the Working Procedures provides that "If a third-party submission and/or oral
statement does not exceed six pages in total, this may serve as the executive summary of that third party's
arguments." Indonesia submitted a third-party submission of less than six pages, and this also serves as the
executive summary of its arguments.

7 FINDINGS
7.1 Initial considerations
7.1.1 Introduction
7.1. The Philippines' complaint in this proceeding, initiated under Article 21.5 of the DSU, concerns
the alleged failure by Thailand to comply with the DSB's recommendations and rulings in the original
proceeding in Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines (DS371).37
7.2. In Sectio n 1 above, the Panel recalled the findings of the Panel in the first recourse to
Article 21.5 of the DSU, recapitulated the procedural requests and rulings that arose during the
present proceeding, and set out the two sets of measures challenged by the Philippines in this
proceeding. In Section 2 above , the Panel identified the relevant governmental and corporate
entities implicated by the measures, and in Section 3 the Panel set forth the parties ' requests for
findings in relation to those measures.
7.3. Before turning to its analysis of the measures at issue in this second recourse to Article 21.5,
the Panel will begin by recalling the observations made in the Report in the first recourse to
Article 21.5 regarding the general principles of interpretation and standard of review applicable to
the CVA, and supplement th at discussion to explain how it takes that Report into account in its
analysis of the issues in this second recourse to Article 21.5. These are foundational issues, as they
inform the Panel 's approach to many of the other issues raised in this proceeding, including for
example its approach to the question of whether there is a sufficiently close nexus between the
measures at issue in this dispute and the DSB's recommendations and rulings.
7.4. After setting out this general framework for its analysis, the Panel will then proceed to address
four issues relating to jurisdiction and admissibility , namely: (1) whether the 2002-2003 Charges
and 1,052 revised NoAs have a sufficiently close nexus to the DSB's recommendations and rulings
to fall within the scope of this Article 21.5 compliance proceeding ; (2) the relevance of Thailand 's
assertions of "illegal acts" allegedly committed by PM Indonesia to the admissibility of the Philippines'
claims; (3) whether the Philippines' alternative claims of inconsistency under Article 7.1 of the CVA
were adequately identified in the Panel request, and raised in a timely manner during the proceeding;
and (4) the Philippines' standing to challenge measures that exclusively concern PMTL's imports
from another WTO Member, i.e. Indonesia. Each of these issues relate s in one way or another to
jurisdiction or admissibility, and as such are threshold issues that are appropriately addressed before
turning to the merits of the case.
7.5. The Panel will then addre ss the relevance of the presumption of good faith on the part of
Thailand and its authorities in relation to two issues: (1) the Philippines' doubts as to the veracity of
Thailand's representations that its authorities calculated the actual price/value of PMTL's imports
based on the pricing and cost information reported by PM Indonesia in the CK -21A form; and ( 2)
the interpretation of CVA obligations. The first issue is fundamental, given that the basic predicate
of most of the Philippines' claims, many of Thailand's substantive defences, and much of the Panel's
own analysis is that Thai authorities had access to and relied on the pricing and cost information
reported by the producer and seller of the cigarettes at issue, PM Indonesia, to In donesian tax
authorities in the CK-21A form. The second issue is also horizontal in nature, and relates back to the
general principles of interpretation and standard of review applicable to the CVA. Thus, these issues
are also properly addressed up front.
7.1.2 General framework for the Panel's analysis
7.1.2.1 General principles of interpretation and standard of review
7.6. In its Report in the first recourse to Article 21.5, the Panel stated that it remained "ever mindful
of the function and institutional role of a compliance panel under Article 21.5 of the DSU ", and

37 See Panel Report, Thailand –Cigarettes (Philippines), WT/DS371/R, adopted 15 July 2011, as modified
by Appellate Body Report WT/DS371/AB/R; and Appellate Body Report, Thailand – Cigarettes (Philippines),
WT/DS371/AB/R, adopted 15 July 2011.

therefore considered that "the starting point for our inte rpretation of the terms of the CVA are the
findings of the panel and the Appellate Body that were made in the original proceeding, and which
were adopted by the DSB in the context of the ordinary dispute settlement process ".38 The Panel
stated that it agreed with the parties and third parties that it was not, strictly speaking, "bound" to
follow the legal interp retations of the original panel; however, the Panel stated that it also shared
the view that, "in the interests of ensuring security and predictability in dispute settlement and the
finality of the DSB's recommendations and rulings, there is an expectation that, absent compelling
reasons, compliance panels will make findings consistent with those made by the original panel in
the same dispute ".39 The Panel recalled the Appellate Body's statement that "doubts could arise
about the objective nature of an Article 21.5 panel's assessment if, on a specific issue, that panel
were to deviate from the reasoning in the original panel report in the absence o f any change in the
underlying evidence in the record and explanations given".40
7.7. The Panel then noted that it was presented with a number of interpretative issues that the
original panel was not required to resolve. 41 It recalled that Article 3.2 of the DSU states that the
WTO dispute settlement system serves to "clarify the existing provisions of those agreements in
accordance with customary rules of interpretation of public international law ", and confirmed that
the "customary rules of interpretation of pu blic international law " referred to by the DSU include
Articles 31, 32 and 33 of the Vienna Convention on the Law of Treaties (the Vienna Convention).
The Panel noted that Article 31(1) of the Vienna Convention provides that "[a] treaty shall be
interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the
treaty in their context and in the light of its object and purpose".42
7.8. The Panel then observed that w here the terms of the CVA are generally -worded and do not
prescribe any particular means or methodology that must be followed in discharging a substantive
and procedural obligation contained therein, it would proceed on the understanding that the
domestic customs authorities involved in customs valuation "enjoy a margin of discretion regarding
the means or methodology that they choose to follow, within the parameters laid down in the
applicable treaty provisions, read in their context and in the light of the object and purpose of the
CVA".43 The Panel observed that this understanding "derives from the manner in which the Appellate
Body and previous panels have approached generally -worded obligations that do not prescribe a
particular means or methodology for conducting the analysis, or making the determinations provided
for in the WTO agreement in question".44 The Panel also noted that the Philippines accepted that the
CVA "does not prescribe a specific process for customs authorities to follow " when conducting an
examination of the circumstances of sale and that, as a consequence, the customs authority "has a
degree of discretion in deciding how to conduct its examination".45
7.9. The Panel noted that Article 14 of the CVA provides that the interpretative notes in Annex I to
the CVA "form an integral part" of the CVA, and that the provisions of the CVA are "to be read and
applied in conjunction with " those notes. It r ecalled the original panel 's view that although
commentaries by the Technical Committee on Customs Valuation are "not legally binding upon the
parties", they may be "instructive and can provide guidance on the interpretation of the Customs
Valuation Agreement, especially since it is the WTO Members that make up the Technical
Committee".46
7.10. The Panel also referred to the Decision of the Committee on Customs Valuation Regarding
Cases Where Customs Administrations Have Reasons to Doubt the Truth or Accuracy of the Declared
Value (the Decision)47, and recalled that the original panel found guidance in the Decision to confirm

38 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.80.
39 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.80.
40 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada), para. 103.
41 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.81.
42 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.81.
43 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.82.
44 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.82.
45 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.82.
46 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.83 (referring to
Panel Report, Thailand – Cigarettes (Philippines), footnote 650).
47 See Committee on Customs Valuation, Decision Regarding Cases Where Customs Administrations
Have Reasons to Doubt the Truth or Accuracy of the Declared Value, G/VAL/1, 27 April 1995, and Minutes of
the Committee Meeting of 12 May 1995, G/VAL/M/1, 11 August 1995. The Decision was adopted pursuant to

its understanding of certai n CVA obligations. 48 Furthermore, the Panel observed that the parties
were of the view that the Decision is, or could potentially qualify as, a "subsequent agreement
between the parties regarding the interpretation of the treaty or the application of its pr ovisions"
within the meaning of Article 31(3)(a) of the Vienna Convention.49
7.11. With respect to the standard of review, the Panel noted the absence of any disagreement that
Article 11 of the DSU sets forth the standard of review in respect of both the GATT 19 94 and the
CVA (the two agreements invoked by the Philippines in the first recourse to Article 21.5).50 The Panel
recalled that, under Article 11, a panel's mandate is to "make an objective assessment of the matter
before it, including an objective assessment of the facts of the case and the applicability of and
conformity with the relevant covered agreements, and make such other findings as will assist the
DSB in making the recommendations or in giving the rulings provided for in the covered
agreements".
7.12. The Panel recalled the original panel's explanation that the standard of review under the CVA
requires a panel to "critically examine a domestic authority's explanation 'in depth, and in the light
of the facts before the panel'"51, and its reliance on the Appellate Body's statement that an "objective
assessment under Article 11 of the DSU must be understood in the light of the obligations of the
particular covered agreement at issue in order to derive the more specific contours of the appropriate
standard of review."52 The Panel also recalled the original panel's statement that it would therefore
make an objective assessment of the matter "in light of the relevant obligations " invoked.53 The
Panel recalls that it conducted a more detailed analysis of cert ain aspects of its standard of review
when assessing the BoA's examination of the circumstances of sale under Articles 1.1 and 1.2(a) of
the CVA.54
7.1.2.2 Reliance on the Report in the Philippines' first recourse to Article 21.5.
7.13. There is a degree of overlap betw een the issues raised in this proceeding and the issues
already addressed by the Panel in the first recourse to Article 21.5. This overlap is a consequence of
certain similarities between the challenged measures, the Philippines ' claims, and Thailand 's
defences. Like the 2003 -2006 Charges at issue in the Philippines ' first recourse to Article 21.5, it
was the Public Prosecutor that filed the 2002 -2003 Charges , following an investigation and
recommendation by the DSI; and like the 2003-2006 Charges, the 2002-2003 Charges allege that
PMTL violated Section 27 of the Thai Customs Act by declaring a "false price" for Marlboro and L&M
cigarettes contrary to the "actual price", with the intention to defraud the government of taxes and
customs duties. The Philippines claims, as it did in respect of the 2003-2006 Charges, that the Pubic
Prosecutor has again violated Articles 1.1 and 1.2(a) of the CVA by rejecting PMTL 's transaction
values without a valid basis, and that its determination of the "actual price " again violates the
applicable valuation rules in Articles 2 through 7 of the CVA. In response, Thailand presents an
argument that resembles the "ripeness" argument that it raised in the first recourse to Article 21.5
regarding the 2003-2006 Charges, and once again argues that in any event the CVA does not apply
to the Charges, and that any inconsistency with the CVA is justified under the general exceptions of
Articles XX(d) and (a) of the GATT 1994.
7.14. Despite the similarity of some of the issues raised in the Philippines' first and second recourse
to Article 21.5, there are also some obvious and important differences between the relevant
measures, the Philippines ' claims, and Thailand 's defences. First, the two sets of Charges rest on

the invitation in the Ministerial Decision Regarding Cases Where Customs Administrations Have Reasons to
Doubt the Truth or Accuracy of the Declared Value (the Ministerial Decision).
48 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.84 (referring to
Panel Report, Thailand – Cigarettes (Philippines), para. 7.172, footnotes 564 and 582).
49 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.84.
50 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.85.
51 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.86 (referring to
Panel Report, Thailand – Cigarettes (Philippines), para. 7.104, in turn quoting Appellate Body Report,
US - Lamb, para. 106).
52 Panel Report, Thailand – Cigarettes (Philippines), para. 7.71 (quoting Appellate Body Report,
US - Countervailing Duty Investigation on DRAMS, para. 184).
53 Panel Report, Thailand – Cigarettes (Philippines), para. 7.72.
54 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.108-7.121. See
also paragraphs 7.146-7.147.

different factual bases: whereas the 2003-2006 Charges at issue in the first recourse to Article 21.5
compared PMTL 's declared transacti on values with the prices of King P ower, a Thai duty -free
operator55, the 2002-2003 Charges at issue in this proceeding allegedly compare PMTL's declared
transaction values with a value constructed on the basis of certain pricing and cost information that
PM Indonesia reported to the Indonesian excise tax authorities in an administrative form known as
form CK-21A.56 Second, and partly as a consequence of the fact that these two different comparisons
reflect two different methods of customs valuation which implicate different valuation rules in Articles
2 to 7, the Philippines pursues different substantive and procedural legal claims. Third, Thailand 's
central argument in response to the merits of the Philippines ' claims – which is that its authorities
were entitled to assume that the pricing and cost information provided to it by the authorities of the
exporting Member (in this case, Indonesia) was accurate and reliable – also raises a novel defence.
7.15. Given these differences, the Panel considers that it is self-evident that its findings in the first
recourse to Article 21.5 concerning the 2003-2006 Charges cannot simply be transposed to the
2002-2003 Charges at issue in this proceeding , insofar as some of the relevant facts and/or legal
claims are different.57 Thailand has stressed this point, stating that "while the issues in the two
Article 21.5 proceedings may be similar, they are by no means identical, especially with respect to
the facts" and that it "would be incorrect, therefore, to conclude t hat the Philippines has made a
prima facie case only because the issues addressed in these Article 21.5 proceedings are similar to
those in the first Article 21.5 proceedings ".58 The Philippines does not appear to have suggested
otherwise; to the contrary, a significant portion of the Philippines' first written submission is devoted
to a discussion of the factual circumstances specific to the 2002-2003 Charges, and as noted above
it claims that the Public Prosecutor 's determinations of revised customs values in the two sets of
Charges raise two different sets of issues that are governed by two different sets of valuation rules
in Articles 2 to 7 of the CVA.
7.16. Having said this, and bearing in mind that the Panel is not strictly bound by any legal findings
and reasoning contained in its Report in the first recourse to Article 21.5, there is nothing in the DSU
that would require this Panel to treat all the legal and interpretative issues raised in this second
recourse to Article 21.5 as matters of first impression. Article 11 of the DSU mandates the Panel to
make an "objective assessment of the matter". The notion of objectivity embraces considerations of
consistency and coherence.59 The Panel's findings and legal interpretations in the first recourse to
Article 21.5 already carefully took into account and addressed all of the legal arguments presented
to it by the parties and third parties in the context of the first recourse to Article 21.5. It would
arguably be capricious, not objective, for the Panel to be swayed to change its earlier legal findings
and reasoning on the basis of the same arguments that it found unpersuasive in th e first recourse
to Article 21.5, considering that this second recourse to Article 21.5 is part of the same dispute as
the first recourse to Article 21.5, is between the same disputing parties, and is being adjudicated by
a compliance panel composed of the same individuals. Accordingly, in the light of Article 11 of the
DSU the Panel considers that it has a duty to re-examine any earlier findings and reasoning only in
the light of any new arguments presented by the parties or third parties in this second recourse to
Article 21.5.
7.17. In response to a question from the Panel, the Philippines agrees that insofar as issues of law
or legal interpretation arise in this second recourse to Article 21.5 that are the same issues of law
or legal interpretation that were a lready ruled on by the Panel in the first recourse to Article 21.5 ,
and except and insofar as a party develops novel legal arguments that were not addressed in the
findings and reasoning of the Panel Report in the first recourse to Article 21.5 or identifies one or
more distinguishing factual circumstances relating to the measures at issue , the Panel could
incorporate by reference (and would not be required to restate) the relevant findings and reasoning

55 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.653-7.656.
56 In addition to these differences, the two sets of Charges relate to imports over two different time
periods (i.e. 2003-2006 and 2002-2003), and they also involved two different sellers (i.e. the Philip Morris
subsidiary located in the Philippines over the 2003-2006 period, and PM Indonesia over the 2002-2003 period).
57 As the European Union puts it, "such incorporation will only suffice if the legal issues at stake are
comparable and the factual basis for the conclusions is sufficiently similar". (European Union's response to
Panel question No. 10 to third parties, para. 4.)
58 Thailand's first written submission, para. 3.3.
59 See e.g. Appellate Body Reports, US – Upland Cotton (Article 21.5 – Brazil), paras. 294-295; EC and
certain member States – Large Civil Aircraft, para. 894; and Russia – Commercial Vehicles, paras. 5.81-5.82.

from the Panel Report in the first recourse t o Article 21.5. 60 In response to the same question,
Thailand ostensibly disagrees, arguing that the Panel "cannot comply with its duty under Article 11
by merely incorporating by reference the findings and reasoning of the first compliance panel ".61
However, Thailand argues that this is so because the parties "have put forth different arguments
and evidence " in the two proceedings , and it emphasizes that the two cases involve "different
claims", "different measures ", and "different facts ".62 The Panel agrees a nd reiterates that it is
axiomatic that, insofar as the first and second compliance panel proceedings involve different
arguments and evidence (and different claims, measures and facts), then the Panel 's legal findings
and reasoning from the former cannot simply be transposed to the latter.
7.18. Article 3.2 of the DSU states that the WTO dispute settlement system serves to "clarify the
existing provisions of those agreements in accordance with customary rules of interpretation of
public international law". Insofar as the Panel considered there to be any inconsistency between its
legal findings and reasoning in the first recourse to Article 21.5 and the terms of the CVA interpreted
in accordance with customary rules of interpretation, the Panel would have no choi ce but to reject
its earlier legal findings and reasoning. However, the legal findings and reasoning of the Panel in the
first recourse to Article 21.5 already reflect the Panel's analysis of how the relevant CVA provisions
are to be interpreted in accorda nce with the customary rules of interpretation reflected in Articles
31, 32 and 33 of the Vienna Convention. There has been no amendment to the terms of the CVA
since the Panel finalized its Report. As a consequence, in the absence of any novel legal arguments
being put forward by the parties or third parties based on those customary rules of interpretation,
the Panel remains of the view that the legal interpretations it developed are presumptively correct
under those customary rules of interpretation. Accordingly, Article 3.2 of the DSU does not require
the Panel to treat all issues of law and legal interpretation that arise in this proceeding as matters
of first impression.
7.19. The Panel understands that some Members hold to the view that WTO panels should follow
prior interpretations by default unless there is a reason not to (i.e. t he cogent reasons standard),
whereas other Members hold to the view that WTO panels should reach their own interpretations
more independently, and follow prior interpretations only insofar as they are found to align and be
assessed as persuasive (i.e. the persuasiveness standard). These different points of view have been
reflected in the submissions made by the third parties in this proceeding. The fact that thi s Panel
would be predisposed to consider the findings it made in the first recourse to Article 21.5 as still
being persuasive, in the absence of novel arguments or circumstances demonstrating otherwise ,
implies no view on the precedential value of other panel and Appellate Body reports more generally.
It only reflects the Panel's assessment of how Articles 11 and 3.2 of the DSU apply in the
circumstances of successive proceedings, raising the same or similar legal issues, argued before two
panels comprised of the same three individuals, in the compliance phase of the same overall WTO
dispute between the same parties.
7.20. Article 12.7 of the DSU provides that the report of a panel "shall set out the findings of fact,
the applicability of relevant provisions and t he basic rationale behind any findings and
recommendations that it makes". If a panel considers that the legal reasoning set forth in an earlier
panel or Appellate Body report is persuasive and correct, it i s under no obligation to restate or
extensively quote from that analysis in order to comply with its duty under Article 12.7; i t may
instead employ the technique of incorporation by reference.63

60 Philippines' response to Panel question No. 126, para. 1.
61 Thailand's response to Panel question No. 126, para. 1.7.
62 Thailand's response to Panel question No. 126, paras. 1.2-1.4.
63 In Mexico – Corn Syrup (Article 21.5 – US), the Appellate Body explained that "a panel's 'basic
rationale' might be found in reasoning that is set out in other documents, such as in previous panel or
Appellate Body reports – provided that such reasoning is quoted or, at a minimum, incorporated by reference".
(Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 109.) In EU – Footwear (China), the
panel was presented with claims and arguments on one of the measures that were largely the same as those
presented by the same parties on the same issue in EC – Fasteners (China), and explained that:
In these circumstances, we see nothing to be gained, and a potential for confusion, were we to
state our conclusions and analysis, which were the same as those of the panel in EC – Fasteners
(China), in different terms in this report. We have therefore taken the route of adopting that
panel's analysis and conclusions as our own, with additional reasoning of our own when
necessary to address arguments not made before that panel. When the same parties present the

7.21. The Panel sees a potential for confusion if in this second recourse to Art icle 21.5 it were to
present its analysis and conclusions in terms different from those of the Panel Report in the first
recourse to Article 21.5, insofar as it is confronted with the same or similar issues raised in the first
recourse to Article 21.5. The Panel recalls and fully agrees with the observation made by the
Philippines, when describing the standard of review under the CVA in the context of the first recourse
to Article 21.5 , that "the use of the same terminology to describe the same legal requirem ents is
essential to promoting the objectives of security and predictability", and that "when different panels
use different terminology to describe the same requirements, in particular within a single dispute,
the divergence of terminology undermines those objectives, and creates confu sion".64 The Panel
therefore considers that insofar as it is confronted with a legal issue that was already considered in
the Panel Report in the first recourse to Article 21.5, and insofar as it sees no compelling reason to
deviate from a prior interpretat ion, the Panel may employ the technique of incorporation by
reference to avoid repetition and improve the readability of this Report.
7.22. As noted above, Thailand ostensibly disagrees and states that the Panel "cannot comply with
its duty under Article 11 by merely incorporating by reference the findings and reasoning of the first
compliance panel".65 However, it would appear that Thailand's concerns do not relate per se to the
formal technique of incorporation by reference, but rather to the prospect of the Pa nel ignoring
material differences between the measures, claims and defences in the first and second compliance
proceedings and blindly transposing its findings from the former to the latter. In that vein, Thailand
observes that the compliance panel in Mexico – Corn Syrup (Article 21.5 – US) "did not merely
incorporate the reasoning and findings of the original panel", but instead "cited to parts of the panel
report discussing the legal relationship betw een the provisions at issue " and "nevertheless still
examined the anti-dumping redetermination in light of the parties ' arguments with respect to that
specific measure".66 Similarly, Thailand points out that in EC – Footwear (China) the complaining
party brought identical claims, in respect of the same measure, that had already been ruled on in
EC – Fasteners (China).67
7.23. For greater clarity, the Panel is not suggesting that these or any other past case would support
this Panel short-circuiting the analysis required, by blindly transposing its findings on the 2003-2006
Charges to the 2002 -2003 Charges without conduct ing a proper assessment of the measures at
issue in this proceeding. Instead, the Panel refers to these cases above as support for the more
limited proposition that, if a panel concludes that the analysis of an earlier panel is persuasive and
correct, and if the panel decides to adopt the same reasoning, then it is under no obligation to
restate or extensively quote from that analysis. It may comply with its duty under Article 12.7 of
the DSU by employing the technique of incorporation by reference to avoid repetition, and thereby
improve the readability of the Report. Indeed, the Panel observes that Thailand has employed
essentially the same technique when incorporating by reference certain sections of its submissions
from the first recourse to Article 21.5.68
7.24. In sum, the Panel takes the legal findings and reasoning by the panel and the Appellate Body
in the original proceeding, and in the Report of the Panel in the first recourse to Article 21.5, as the
point of departure for its analysis of the legal issues in this case. Insofar as there are one or more
factual circumstances relating to the measures at issue in this second recourse to Article 21.5 that
materially distinguish them from the me asures at issue in the first recourse to Article 21.5, and
insofar as the legal claims are different, then the Panel cannot simply transpose its findings and
reasoning from the Report in the first recourse to Article 21.5. However, insofar as issues of law or
legal interpretation arise in this second recourse to Article 21.5 that are the same issues of law or

same claims and arguments concerning the same measure in two successive disputes, as here, if
it finds the analysis and conclusions of the first panel persuasive and correct, we see no reason
for the second panel to restate that analysis and conclusions. (Panel Report, EU – Footwear
(China), para. 6.5.)
Similarly, the panels in China – Rare Earths stated, in the context of addressing a legal issue that
had already been addressed by the panel and the Appellate Body in China – Raw Materials, that they
saw "nothing that would be gained if we were to reproduce all of the reasoning of the panel and
Appellate Body in China – Raw Materials in the context of responding to the specific arguments
presented by China in this dispute". (Panel Reports, China – Rare Earths, para. 7.60.)
64 Philippines' response to Panel question No. 4, para. 60.
65 Thailand's response to Panel question No. 126, para. 1.7.
66 Thailand's response to Panel question No. 126, para. 1.5.
67 Thailand's response to Panel question No. 126, para. 1.4.
68 See e.g. Thailand's first written submission, para. 3.8.

legal interpretation that were already ruled on by the Panel in the first recourse to Article 21.5, this
Panel may focus its re-examination on any novel legal arguments presented by the parties or third
parties in the context of this second recourse to Article 21.5. If the Panel concludes that the legal
findings and reasoning of the panel in the first recourse to Article 21.5 remain persuasive and correct,
and decides to adopt the same reasoning, the Panel considers that it is under no obligation to restate
or extensively quote from that analysis; it may instead employ the technique of incorporation by
reference.
7.1.3 Issues relating to jurisdiction and admissibility
7.1.3.1 The nexus between the Charges/NoAs and DSB recommendations and rulings
7.1.3.1.1 Introduction
7.25. Article 21.5 of the DSU provides, in relevant part:
Where there is disagreement as to the existence or consistency with a covered
agreement of measures taken to comply with the recommendations and rulings [of the
DSB] such dispute shall be decided through recourse to these dispute settlement
procedures, including wherever possible resort to the original panel.
7.26. The Panel recalls that the scope of Article 21.5 is not limited to "measures taken to comply"
that the responding Member identifies as such: the scope of Article 21.5 proceedings extends beyond
such "declared" measures taken to comply to include other measures that share a sufficiently "close
nexus" with one or more declared measures taken to comp ly, or with the DSB's recommendations
and rulings.69 The Panel further recalls that this assessment is typically based on an assessment of
"the timing, nature, and effects of the various measures ".70 The Panel elaborated further on the
applicable legal stand ard for the "close nexus " analysis in its Report in the first compliance
proceeding, and it is not necessary to repeat that discussion here.71
7.27. The Philippines has challenged two sets of measures in this second recou rse to Article 21.5,
namely (1) the 2002 -2003 Charges, and ( 2) the 1,052 revised NoAs. Both the Charges and the
revised NoAs rest on the same basis, namely the DSI 's calculation of the "actual" value of PMTL's
imports of cigarettes said to be based on pricing and cost information reported by PM Indonesia to
Indonesian tax authorities in excise tax form CK-21A.
7.28. It is uncontested that both challenged measures are specifically identified in the Philippines'
request for the establishment of a panel, in accordance wit h the requirements of Article 6.2 of the
DSU. The Philippines argues that both of these measures share a "close nexus" with the DSB 's
recommendations and rulings in the or iginal proceedings, and with certain of Thailand 's declared
measures taken to comply .72 While Thailand submits that the Panel "must make an independent
determination of whether the 2002 -2003 Charges share a close nexus with the DSB
recommendations and rulings and Thailand's declared measure taken to comply, rather than simply
applying the first compliance panel 's finding mutatis mutandis"73, it does not dispute that both of
the measures at issue in this second recourse to Article 21.5 fall within the scope of this Article 21.5
compliance proceeding as "measures taken to comply".
7.29. The Panel agrees that it must make an independent determination of whether the 2002-2003
Charges share a sufficiently close nexus with the DSB recommendations and rulings and Thailand's
declared measure taken to comply. It is well established that a panel is entitled to consider the issue
of its jurisdiction on its own initiative, and must satisfy itself of its jurisdiction in any dispute that
comes before it.74 The Panel will begin by recalling the reasoning that led it to find that the 2003 -

69 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.504.
70 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.508 (referring to
Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada), para. 77 (emphasis added)).
71 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), Section 7.1.2.1 (The
scope of Article 21.5 compliance proceedings) and Section 7.3.3 (Close nexus).
72 Philippines' first written submission, paras. 126-151, and 369-379.
73 Thailand's response to Panel question No. 127, para. 1.8.
74 Appellate Body Reports, US – 1916 Act, footnote 30; Mexico – Corn Syrup (Article 21.5 – US),

2006 Charges shared a sufficiently close nexus with certain of Thailand's measures taken to comply,
and will then examine the relevant connections that exist between the 1,052 revised NoAs and the
2002-2003 Charges, on the one hand, and the DSB recommendations and rulings and Thailand 's
declared measures taken to comply, on the other hand.
7.1.3.1.2 Findings in the first recourse to Article 21.5
7.30. In the first recourse to Article 21.5, the Panel found that the 2003 -2006 Charges (covering
272 entries running from July 2003 to June 2006) shared a sufficiently close nexus with the matters
covered by the BoA's Ruling of 12 September 2012 (covering 118 entries running from June 2006
through to September 2007). 75 This September 2012 BoA Ruling was one of Thailand 's declared
measures taken to comply, and it revised an earlier valuation of the entries at issue conducted by
the Thai C ustoms which had been found to be inconsistent with relevant CVA obligations in the
original proceeding.
7.31. The Panel found, for reasons elaborated in detail in the Report76, that the 2003-2006 Charges
and the September 2012 BoA Ruling (and/or the original cu stoms valuation determination that it
reversed) shared the following set of connections:
a. both involved the same importer (PMTL);
b. both involved the same exporter (PM Philippines Manufacturing Inc.);
c. both involved the same importing country (Thailand);
d. both involved the same exporting country (the Philippines);
e. both involved the same product, brands and producer ( Marlboro and L&M cigarettes
produced by PM Philippines Manufacturing Inc.);
f. both involved the same transaction values, imported under the same supply contract;
g. leaving aside whether the 2003 -2006 Charges constitute a "customs valuation
determinations" for purposes of the CVA, both measures were related to the valuation of
goods for purposes of levying ad valorem duties on PMTL's imports of Marlboro and L&M
cigarettes;
h. while the measures were taken by different Thai governmental agencies (i.e. the Public
Prosecutor and the BoA), both agencies had potentially overlapping functions in the area
of customs valuation;
i. both measures related to a comparison between PMTL's declared transaction values and
King Power's prices; and
j. while the two measures covered two different groups of entries over different time periods,
these groups of entries immediately preceded/followed each other, such that, taken
together, they comprised a continuous sequence of all entries over the period July 2003
to September 2007.
7.32. In addition to these connections relating to the nature of the measures, the Panel considered
the timing and effects of the Charges. With regard to timing, the Panel observed that the 2003-2006
Charges were issued on 18 January 2016, which post-dated both the expiry of Thailand's reasonable
period of time to implement the DSB's recommendations and rulings (15 May 2012), as well as the

75 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), Section 7.3.3 (Close
nexus).
76 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), Section 7.3.3.3.2.3
(Close nexus > Nature).

adoption by Thai land of the relevant declared measure taken to comply (12 September 2012). 77
Regarding the effect of the Charges , the Panel concluded that t he 2003-2006 Charges had the
potential to circumvent Thailand's compliance with the CVA achieved through th e September 2012
BoA Ruling, notwithstanding that the Charges had no legal effect on the September 2012 BoA Ruling
or the entries subject to that ruling.78
7.1.3.1.3 The 2002-2003 Charges and the 1,052 revised NoAs
7.33. The 2002-2003 Charges and the 1,052 revised NoAs at issue in this second recourse to Article
21.5 (hereinafter, for brevity, "the Charges/NoAs at issue") concern cigarettes that PMTL imported
from PM Indonesia. Therefore, instead of asking the Panel to find that these measures share a close
nexus with the Se ptember 2012 BoA Ruling, which concerned PMTL 's imports from PM Philippines
Manufacturing Inc. (PMPMI), the Philippines seeks to demonstrate their "close nexus" to a BoA Ruling
that concerned entries that took place over the period when PMTL imported its c igarettes from PM
Indonesia. This Ruling also covered 206 of the same entries that are covered by the Charges/NoAs
at issue. Specifically, the Philippines refers to the November 2012 BoA Ruling that was the subject
of the Panel's findings in the first reco urse to Article 21.5. The Panel recalls that the Philippines is
free to demonstrate the existence of a "close nexus" between the Charges and either the September
2012 BoA Ruling, or the November 2012 BoA Ruling.79
7.34. For purposes of reviewing the connections between the measures at issue in this proceeding
and the November 2012 BoA Ruling, the Panel recalls that t he 2002-2003 Charges are a set of
criminal charges filed by the Public Prosecutor against PMTL and one of its former employees on
26 January 2017, alleging that PMTL declared a "false price" contrary to the "actual price" in respect
of 780 shipments of cigarettes imported in 2002-2003 from PM Indonesia. The Panel recalls that the
1,052 revised NoAs that PMTL subsequently received in Nov ember 2017 from Thailand's Customs
Department rejected PMTL's declared transaction values for 1,052 shipments of cigarettes imported
over the period 2001-2003, including 779 of the 780 shipments covered by the 2002-2003 Charges.
The 1,052 revised NoAs determined revised customs values using the same "actual prices" found by
the DSI, which also served as the basis for the 2002-2003 Charges.
7.35. The Panel is satisfied that the Charges/NoAs at issue share the same set of connections with
the November 2012 BoA Ruling as the 2003-2006 Charges did with the September 2012 BoA Ruling,
insofar as:
a. both involve the same importer (PMTL)
b. both involve the same exporter (PM Indonesia);
c. both involve the same importing country (Thailand);
d. both involve the same exporting country (Indonesia);
e. both involve the same product, brands and producer ( L&M / Marlboro cigarettes and PM
Indonesia);
f. both involve entries with the same transaction values, imported under the same supply
contract;
g. leaving aside whether the 2002 -2003 Charges co nstitute "customs valuation
determinations" for purposes of the CVA, both measures relate to the valuation of goods
for purposes of levying ad valorem duties on PMTL 's imports of Marlboro and L&M
cigarettes; and

77 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), Section 7.3.3.3.2.2
(Close nexus > Timing).
78 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), Section 7.3.3.3.2.4
(Close nexus > Effects).
79 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.505.

h. while the 2002-2003 Charges and the November 2012 BoA Ruling were taken by different
Thai governmental agencies (i.e. the Public Prosecutor and the BoA), both agencies have
potentially overlapping functions in the area of customs valuation.
7.36. There are thr ee differences between the set of connections that exist between the
Charges/NoAs at issue and the November 2012 BoA Ruling, as compared with the set of connections
that existed between the 2003-2006 Charges with the September 2012 BoA Ruling. However, none
of these differences attenuates the nexus that exists between the Charges/NoAs at issue and the
November 2012 BoA Ruling. In fact, as elaborated below, the first and second differences establish
additional connections between these measures.
7.37. The first difference is that the Thai Customs Department issued the 1,052 revised NoAs based
on the DSI's calculation of the "actual" values, and which also served as the basis for the 2002-2003
Charges filed by the Public Prosecutor. The Panel in the first recourse to Article 21.5 stated that the
nexus that it found to exist between the 2003-2006 Charges and the BoA Ruling in question was
"more attenuated than it would otherwise be if both measures were taken by the same Thai
government agencies"; however, the Panel considered that "the Public Prosecutor and the BoA have
potentially overlapping functions in the area of customs valuation, at least to the extent that, in
discharging their respective mandates, both agencies have made assessments as to whether PMTL's
declared transaction values should be accepted or not, with corresponding assessments as to the
amount in ad valorem duties that PMTL should have paid to the Thai government ".80 The fact that
the Thai Customs Department issued the 1,052 revised NoAs on the basi s of the exact same
information and calculations underlying the 2002 -2003 Charges confirms that the Customs
Department, the DSI and Public Prosecutor have potentially overlapping functions in the area of
customs valuation. Indeed, it further suggests that there is a degree of coordination with respect to
their respective actions.
7.38. The second difference between the set of connections that exist between the Charges/NoAs
at issue and the November 2012 BoA Ruling, as compared with the set of connections between the
2003-2006 Charges and the September 2012 BoA Ruling at issue in the first recourse to Article 21.5,
concerns the relationship that exists between the entries covered by the Charges/NoAs at issue and
the November 2012 BoA Ruling. Specifically, the 780 entries covered by the 2002-2003 Charges
include 206 of the 210 entries subje ct to the November 2012 BoA Ruling , and 208 of those 210
entries are also covered by the 1,052 revised NoAs. These 206 entries have thus been addressed in
all three WTO proceedings in this dispute, in the context of the following sets of measures: (1) the
BoA's protracted delay in addressing the value of these entries (original proceedings); ( 2) the
November 2012 BoA Ruling (first compliance proceedings); and ( 3) the Charges/NoAs at issue in
this second recourse to Article 21.5 . The foregoing establishes that the Charges/NoAs at issue and
the November 2012 BoA Ruling share a further connection, in terms of overlapping entries, that did
not exist with respect to the 2003-2006 Charges and the September 2012 BoA Ruling.
7.39. The third difference between the set of connections that exist between the Charges/NoAs at
issue and the November 2012 BoA Ruling, as compared with the set of connections that existed
between the 2003-2006 Charges with the September 2012 BoA Ruling, is the apparent lack of any
connection between the grounds relied on in the 2002-2003 Charges and the November 2012 BoA
Ruling. The Panel in the first recourse to Article 21.5 noted that "the Charges, like the original
recommendations and rulings of the DSB implemented by the BoA in its September 2012 Ruling,
both entailed reference to, and comparison of some kind with, the duty free prices of King Power".81
The Charges/NoAs at issue are based on a comparison between PMTL's declared transaction values
and a higher, "actual" price calculated by the Thai authorities based on pricing and cost information
reported by PM Indonesia, to the Indonesian excise tax authorities, in form CK-21A. There is no
indication that either the November 2012 BoA Ruling, nor any of the original measures subject to
the DSB recommendations and rulings, nor any other declared measure taken to comply, involved
any kind of reference to pricing and cost information reported by PM Indonesia to the Indonesian
excise tax authorities in the CK-21A form. That does not sever the nexus between the Charges/NoAs
at issue and the November 2012 BoA Ruling: as the Panel in the first recourse to Article 21.5 stated,

80 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.553.
81 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.553.

"there does not need to be perfect and exact identity between all of the grounds underlying the two
measures in order for there to be a 'close nexus'".82
7.40. In terms of timing, the 2002 -2003 Charges at issue in this second recourse to Article 21.5
were issued in January 2017, and the 1,052 revised NoAs were issued to PMTL in November 2017.
Therefore, as with the 2003-2006 Charges at issue in the first recourse to Article 21.5, the issuance
of the Charges /NoAs at issue post-dates both the expiry of the reasonable period of time for
implementation of the DSB 's recommendations and rulings (which ended in May 2012), and
Thailand's adoption of two declared measures taken to comply (September and November 2012 BoA
Rulings). In the first recourse to Article 21.5, the Panel identified a further nexus in timing, focusing
on the timing of certain events culminating in the Charges and the original DSB recommendations
and rulings (including the fact that when the DSI recommended for a second time that 2003-2006
Charges be filed, in August 2011, this took place only one month after the DSB's recommendations
and rulings were adopted).83 In this second recourse to Article 21.5, Thailand states, without further
elaboration, that "certain important facts surrounding the 02-03 Charges and the 03-06 Charges are
different," and that "[f]or example, the sequence of events leading to the 02-03 Charges is relevant
to the timing of the measures at issue ".84 Insofar as Thailand is suggesting that there is some
important aspect of the timing of the events that led to the 2002 -2003 Charges (and/or 1,052
revised NoAs) that serves to distinguish them for purposes of the "close nexus" analysis, the Panel
fails to see what the relevant factual difference is.
7.41. Regarding consideration of effects, the Panel concluded that the 2003-2006 Charges had the
potential to circumvent Thailand's compliance with the CVA achieved th rough the September 2012
BoA Ruling, notwithstanding that the Charges had no legal effect on the September 2012 BoA Ruling
or the entries subject to that ruling . The same considerations apply a fortiori to the Charges/NoAs
at issue, considering that they both actually revise the customs values for entries that were subject
to the November 2012 BoA Ruling, and this Ruling was one of Thailand 's declared measures taken
to comply.
7.1.3.1.4 Conclusion
7.42. Based on the foregoing, the Panel is satisfied that the 1,052 revised NoAs and the 2002-2003
Charges share the same set of connections with the November 2012 BoA Ruling as the 2003-2006
Charges did with the DSB's rulings and recommendations and Thailand 's declared measures taken
to comply, such that the Panel 's finding of the existence of a sufficiently "close nexus" in the first
recourse to Article 21.5 applies mutatis mutandis to the 2002-2003 Charges at issue in this second
recourse to Article 21.5. The Panel therefore concludes that each of the measures at issue in this
second recourse to Article 21.5 is properly characterized as an undeclared "measure taken to
comply", and thus falls within the jurisdiction of the Panel. As noted at the outset, Thailand has not
argued otherwise.
7.1.3.2 Thailand's allegations of "illegal acts" by PM Indonesia
7.43. In the context of advancing its interpretation of Article 1.2(a) of the CVA, Thailand asserted
in its first written submission that the Philippines "cannot base its claims of violation against Thailand
on the basis of an admit ted illegal act of [PM Indonesia] in a foreign jurisdiction ".85 According to
Thailand, the "admitted illegal act" in question was PM Indonesia's decision to knowingly report costs
and profits in the CK -21A form that, according to the Philippines, were "fabricated arithmetical
'plugs'"86 that were "arbitrary" and "fictitious", and which "did not – and could not – represent the
actual costs and profits of the producer and the other parties in the supply chain".87

82 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.536. If it were
otherwise, it would lead to the absurd result that if a Member determined the customs value of certain goods
on the basis of a comparison that was subsequently found to be inconsistent with the obligations in Articles 1
to 7 of the CVA, a Member's subsequent determination of the customs value of those same goods would not
fall within the scope of Article 21.5 review unless it replicated precisely the same error.
83 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.516.
84 Thailand's response to Panel question No. 127, para. 1.9.
85 Thailand's first written submission, para. 3.48.

7.44. Thailand formulated this aspect of its argument in terms that could be understood as relating
to the admissibility of the Philippines' claims.88 Furthermore, Thailand sought to find support for this
aspect of its argument on the basis of international jurisprudence that seems to concern the
inadmissibility of certain types of claims and defences . Specifically, Thailand referred to the
Permanent Court of International Justice's statement in the Factory at Chorzów case that "one party
cannot avail himself of the fact that the other has not fulfilled some obligation … if the former party
has, by some illegal act, prevented the latter from fulfilling the obligation in question ".89 Thailand
referred to other public international law authorities, including arbitral decisions, for the related
propositions and maxims that "an unlawful act cannot serve as the basis of an action in law "; that
"[a] State may not invoke its own illegal act to diminish its own liability"; and "the most
exceptionable of all principles" is that "he who does wrong shall be at liberty to plead his own illegal
conduct on other occasions as a partial excuse".90
7.45. The Philippines responded that this aspect of Thailand 's argumentation "does not posit a
general interpretation of Article 1.2(a) that applies in all cases", but instead "posits a supposed legal
bar to a WTO claim with the applicability of that legal bar premised on the facts of a particular case,
i.e., an 'illegal act' by the importer".91 The Philippines indicated that it doubted whether Thailand 's
proposed legal bar has any basis in WTO law, as it appears to attribute to a WTO Member the legal
consequences of an "illegal act" allegedly committed by an importer.92 In any event, the Philippines
considered that the Panel need not decide whether Thailand 's proposed legal bar has any basis in
WTO law, because Thailand has failed to show that the importer and/or the producer committed any
"illegal act".93
7.46. In its second written submission, Thailand did not specifically address the Philippines '
observation that this line of argument appears to posit a legal bar to the admissibility of the claims,
rather than any general interpretation of the CVA. To the contrary, Thailand reiterated the same
argument94, and formulated it in terms that implied that the commission of an "illegal act" by PM
Indonesia was a ground for rejecting the Philippines ' claims that was distinct from Thailand 's
argument relating to the interpretation of the CVA underlying the Philippines ' claims. Specifically,
Thailand submitted that the Philippines ' claim should be rejected "not only because it is based on
flawed interpretations of the CVA, but also, and more importantly , because it is based on the
Philippines' open admission that [PM Indonesia], a related company of PMTL, committed an illegal
act under Indonesian law".95 The same distinction was reflected in Thailand's statement that "good
faith" interpretation under the Vienna Convention "does not allow the Philippines to base a claim of

88 For instance, Thailand reiterated that "a good faith interpretation must not allow parties to claim a
violation of a CVA provision based on an illegal act of the company whose products were valued", and that "the
Philippines cannot assert a claim of violation against Thailand on the basis of admitted illegal acts committed in
Indonesia". (Thailand's first written submission, paras. 3.79 and 3.175.)
89 Thailand's first written submission, para. 3.75 (referring to Permanent Court of International Justice,
Factory at Chorzów (Germany v. Poland) (Jurisdiction), 1927, PCIJ Series A, No. 9, p. 31).
90 Thailand's first written submission, para. 3.74-3.76 (referring to B. Cheng, General Principles of Law
as applied by International Courts and Tribunals, (Stevens and Sons, Ltd., 1953), Chapter 4, p. 149 and 155).
91 Philippines' second written submission, para. 89. (emphasis added)
93 Philippines' second written submission, para. 92. In its first written submission, Thailand specified in
several places that the illegal acts in question were committed by PM Indonesia (see paras. 1.5, 3.47, 3.48,
3.175, 4.3(c)). However, in its first written submission, Thailand also referred to the illegal act "of the company
whose products were valued" (paras. 3.79), and of "the entity whose merchandise was valued" (para. 3.96).
Thailand has also occasionally referred more broadly, without qualification, to "Philip Morris" (e.g. Thailand's
response to Panel question No. 164(a), para. 3.13, quoted in paragraph 7.49 below). The Panel does not
understand Thailand's varying formulations to imply that in its view it was the importer, PMTL, that was the
entity that engaged in the alleged "illegal act". However, the Philippines understood the reference to "the
company whose products were being valued" to mean the PMTL, i.e. the importer (Philippines' second written
submission, paras. 86 and 98), and thus proceeded to formulate some of its rebuttal arguments on this issue
on the premise that Thailand was alleging illegal acts by "the importer", or "the importer (and/or the
producer)". As a result, there is a degree of misalignment between the parties' arguments on which Philip
Morris entity/entities is/are implicated by Thailand's arguments regarding an alleged "illegal act". However, this
issue is immaterial the Panel's disposition of the matter before it.
94 Thailand reiterated that a "good faith" interpretation "precludes WTO Members from bringing a claim
under this provision that is based on illegal acts committed by either the importer or one of its affiliated
companies", and recalled the "recognized concepts of international law" set forth in its first written submission.
(Thailand's second written submission, para. 3.52.)
95 Thailand's second written submission, para. 3.52. (emphasis added)

violation of the CVA on admitted illegal acts of its main stakeholder ", and that "[i]n any event, the
Philippines' claims should be dismissed as they are based on flawed understandings of the relevant
CVA obligations. "96 In the request for findings set forth at the end of Thailand 's second written
submission, Thailand appeared to again distinguish its argument regarding "illegal acts" from its
arguments on the interpretation of the CVA, stating that "the Panel must reject the Philippines '
claims as they are premised on incorrect legal interpretations of the CVA provisions and because the
Philippines' claims are based on admitted illegal acts committed by PMTL 's related company in
Indonesia."97 The implication of these statements is that its argumentation regarding the alleged
"illegal acts" was not part of its argumentation regarding the interpretation of the CVA.
7.47. Furthermore, Thailand 's first and second written submissions did not articula te any clear
connection between its general interpretation of the CVA, and the question of whether PM Indonesia
committed an "illegal act". Thailand's interpretation of the CVA is basically that the authorities in the
importing country may assume the accur acy and truthfulness of information provided by the
exporting country's authorities and/or by the foreign producer or importer. However, the Panel notes
that if that is correct, it would hold true regardless of whether any provision of inaccurate or
untruthful information is "illegal", wrongful, or justified. Thailand did not explain why an appraisal
of the legality of PM Indonesia's conduct in reporting inaccurate figures would have any bearing on
the question of whether the Thai authorities were entitled to assume that the information was
accurate and to rely on it; nor did Thailand explain why the argument that its authorities were
entitled to assume in good faith that the information reported by PM Indonesia in the CK-21A forms
was an accurate r eflection of PM Indonesia 's pricing and cost figures would require, as a
corollary, characterizing PM Indonesia 's conduct in terms of illegality, wrongfulness, or bad faith.
The Panel considers that the lack of clarity as to what the one has to do with the other further
reinforces the impression that Thailand 's arguments regarding the alleged "illegal act ", while
ostensibly made in support of Thailand's general interpretation of the CVA, might also be construed
as an argument relating to the admissibility of the claims.
7.48. The Panel put several questions to Thailand aimed at clarifying the nature and relevance of
its arguments regarding the alleged "illegal acts" committed by PM Indonesia. In its responses to
questions, Thailand reiterated that "Thailand is not alleging anything", was "simply referring to and
describing the Philippines' own arguments regarding the Indonesian data", and "uses the term 'illegal
act' to paraphrase the Philippines' own argument regarding the content of these forms". 98 Thailand
made two further important, interrelated clarifications. First, Thailand clarified that this line of
argument is not distinct from its argument regarding the interpretation of the CVA, which as noted
above is basically that the authorities of the importing country should have the right to assume that
the information provided by the exporting country 's authority is accurate and truthful. In response
to questions from the Panel, Thailand has clarified that this aspect of its argumentation is not to be
construed as raising any iss ue concerning the admissibility of the Philippines ' claims, whether in
terms of the Factory at Chorzów principle99, estoppel100, the clean hands doctrine101, Article 3.10 of
the DSU 102, or otherwise. Second, and perhaps most importantly, Thailand clarified that its
argumentation regarding the proper interpretation of the CVA also "does not hinge on characterizing
PM Indonesia's actions as illegal acts under Indonesian law".103
7.49. Based on t he foregoing, the Panel considers that it is sufficiently clear that Thailand is not
arguing that the Philippines' claims are inadmissible by virtue of any alleged "illegal act" on the part
of PM Indonesia, and that Thailand's other argumentation also does not actually depend on or entail
characterizing PM Indonesia's conduct as illegal under Indonesian law. The Panel understands that

96 Thailand's second written submission, para. 3.115. (emphasis added)
97 Thailand's second written submission, para. 4.13(c). (emphasis added)
98 Thailand's response to Panel question Nos. 133 and 134, para. 3.4. In its second written submission,
Thailand had already responded to the Philippines' contention that Thailand's allegations of "illegal conduct" are
"wholly unsubstantiated" by stating that "is not the party asserting these facts", but "is merely citing what the
Philippines repeatedly and openly states in its submissions before this Panel". (Thailand's second written
submission, para. 3.58.)
99 Thailand's response to Panel question No. 131.
100 Thailand's response to Panel question No. 132.
101 Thailand's response to Panel question No. 164(a).
102 Thailand's response to Panel question No. 164(a).
103 Thailand's response to Panel question No. 165(a), para. 3.23. See also Thailand's response to Panel
question No. 164(b), para. 3.21.

Thailand, despite clarifying that its argumentation regarding the proper interpretation of the CVA
"does not hinge on characterizing PM Indonesia's actions as illegal acts under Indonesian law", is of
the view that what matters "is that the inaccuracy was not caused by some external factor outside
the control of Philip Morris", but rather "was created knowingly and voluntarily by Philip Morris itself"
and that the Philippines is faulting Thailand for "relying on information that suffers from inaccuracies
that are of Philip Morris' own making".104 The Panel addresses this argument in the context of Section
7.2, when assessing whether the Thai authorities were entitled to assume that the information
reported by PM Indonesia in the CK -21A forms was accurate and truthful , and concludes that as
result of the regulatory constraints mandated by Indonesian excise tax law (i. e. an external factor
outside the control of PM Indonesia), the CK -21A forms could not represent PM Indonesia's actual
costs and profits, and necessarily erred on the side of overstating the actual costs and profits of PM
Indonesia and other parties involved in the supply chain.
7.1.3.3 The Philippines' alternative claims under Article 7.1 of the CVA
7.1.3.3.1 Introduction
7.50. The Philippines understands that the Thai authorities ' determination of the "actual" value of
PMTL's imports is governed by, and inconsistent with, the rules in Article 6 of the CVA concerning
the computed value method of customs valuation. Thailand submits that insofar as the CVA applies
to the 2002-2003 Charges and the "actual price" is considered to be a determination of the revised
customs value, the WTO-consistency of that aspect of the 2002-2003 Charges must be assessed
under Article 7 and not Article 6. In response, the Philippines makes the alternative claim that,
insofar as it is found that the Thai authorities resorted to the customs valuation method in Article 7
to determine the value of PMTL's goods, as opposed to determining a revised customs value on the
basis of Article 6, the 2002 -2003 Charges and the 1,052 revised NoAs are inconsistent with
Article 7.1.
7.51. At the substantive meeting, Thailand argued that this alternative claim under Article 7.1 falls
outside of the scope of the Panel's terms of reference, because it is not adequately identified in the
Philippines' panel request, and also because the Philippines failed to advance said c laim and the
relevant arguments supporting it in a timely manner in these proceedings. The parties engaged in
two rounds of written submissions on this terms of reference issue following the substantive
hearing.105
7.52. An additional issue arose in the context of the parties' comments on the draft descriptive part
of the Report. In its comments, the Philippines stated that it was seeking not one but two alternative
findings of violation from the Panel in respect of its claims under Article 7.1 of the CVA in respect of
the 2002-2003 Charges and the 1,052 NoAs, with the second one being that "Thailand violated
Article 7 by determining the customs value under Article 7 without having followed, in a sequential
manner, the hierarchy of methods provided for in the CVA".106 The Philippines stated that "[i]n
essence, should the Panel find that Thailand used Article 7 to determine the value of PM Thailand 's
goods, the Philippines ' sequencing claim includes Articles 2 to 7, and not just Articles 2 to 6. "107
Thailand responded to this comment by arguing that nowhere in its prior submission "did the
Philippines indicate that it had made a second claim under Article 7 which related to Thailand 's
alleged failure to follow the sequential order of valuation methods "108, and that "the Philippines'
comments on the Panel's draft descriptive part is the first time that the Philippines advances a second
claim under Article 7".109 Thailand submitted that "[t]he Philippines' attempt to raise new claims at
this extremely late stage of the proceedings must be rejected by the Panel."110
7.53. The Panel considers that it is unnecessary to rule on that additional issue. Under the CVA,
there is an obligation to sequentially apply the customs valuation methods set out in Articles 2 to 7
when determining a revised customs value. In Section 7.3.5 (Claim regarding sequential application
of valuation methods) below, the Panel finds that the Philippines has made a prima facie case, which

104 Thailand's response to Panel question No. 164(a), para. 3.13.
105 See Section 1.4.4 above.
106 Philippines' comments on the descriptive part, para. 15.
107 Philippines' comments on the descriptive part, para. 15.
108 Thailand's response to the Philippines' comments on the draft descriptive part, para. 2.17.
109 Thailand's response to the Philippines' comments on the draft descriptive part, para. 2.18.
110 Thailand's response to the Philippines' comments on the draft descriptive part, para. 2.18.

Thailand has not rebutted, that the Public Prosecutor did not adhere to the obligation to sequentially
apply the customs valuation methods set out in Articles 2 to 7 when determining a revised customs
value. The Panel reaches that finding without ruling on whether the Public Prosecutor used Article 6
(or instead Arti cle 7) to de termine a revised customs value, an d without ruling on whether the
customs value could have been determined on the basis of Article 6 (insofar as it was Article 7 that
was instead used). In the light of the foregoing , the Panel considers it unnecessary to resolve the
parties' disagreement about whether the Philippines' claim that the Public Prosecutor violated the
obligation to sequentially apply the customs valuation methods in Articles 2 to 7 when determining
a revised customs value is most accurately characterized as a claim of violation that includes just
Articles 2 to 6, or rather a claim of violation that includes Articles 2 to 7, or their disagreement as
to whether, insofar as it is more accurately characterized in terms of the latter, the aspect of that
claim pertaining to Article 7 would fall within the scope of the Panel's terms of reference. Accordingly,
the Panel does not consider this issue further.
7.1.3.3.2 Main arguments of the parties
7.54. Thailand argues that the Philippines ' panel request , by referring to "Article 7 " without
specifying which subparagraph(s) and obligation(s) are at issue, fails to meet the requirements of
Article 6.2 of the DSU. According to Thailand, a complainant is required to refer clearly to the
particular subparagraph(s) and obligation(s) that it considers to have been violated and to make a
clear link between the specific obligation (s) at issue and the relevant aspects of the challenged
measure, and a failure to do so in a panel request cannot be corrected in a subsequent submission.111
Thailand contends that "the Philippines referred generally to Article 7 without specifying which of the
three paragraphs of Article 7, or which of the seven subsections of paragraph 2 of Article 7, if any,
it considered to have been violated".112 This general reference to Article 7 of the CVA is inadequate
to provide a summary of the legal basis of the complaint sufficient to present the problem clearly as
required under Article 6.2 of the DSU given that "Article 7 contains three sub -paragraphs with
multiple obligations" and that "there are considerable differences between these sub-paragraphs"113
of Article 7. In this connection, Thailand points out that "Article 7.1 addresses flexibility in the use
of the methodologies in Articles 2 -3 and 5-6 of the CVA " while, "[i]n contrast, Article 7.2 contains
prohibitions on the use of seven different valuation methodologies", and "Article 7.3 contains certain
procedural obligations ".114 Moreover, Thailand adds that the generic phrase "[Thailand failed to
comply with] the relevant valuation rules " contained in the Philippines ' panel request is "overly
vague" as it does not specify which valuation rule (s) of Articles 2, 3, 4, 5, 6 or 7 it ref ers to115 and
the Philippines' panel request fails to plainly connect the challenged measure with the individual
provisions of the CVA invoked by the Philippines.116
7.55. Thailand further argues that even if the Philippines' alternative claim under Article 7.1 were
to fall within the Panel 's terms of reference, it is not properly before the Panel on account of the
Philippines' failure to pursue it in a timely manner. Thailand submits that the Philippines did not
advance any claims and arguments under Article 7 of th e CVA either in its first or second written
submissions, and therefore cannot be said to have properly made a prima facie case under any
obligation of Article 7. Moreover, Thailand observes that in its responses to pre -hearing questions
from the Panel regarding the relationship between Articles 6 and 7 of the CVA, the Philippines omitted
to make any claims or seek findings with respect to Article 7 ; and that even if it had, "answers to
questions from a panel should not be considered as an opportunity fo r a complainant to make a
prima facie case for the first time".117 Thailand considers that it is far too late for the Philippines to
raise claims under Article 7 in its opening statement at the substantive meeting with the parties ,
given that "at the time it prepared its first written submission (and, presumably, its request for the
establishment of the panel), the Philippines had in its possession all of the information on which it
appeared to rely during the hearing with respect to Article 7 of the CVA ".118 Entertaining the

111 Thailand's first submission on the scope of the claims, para. 2.11.
112 Thailand's second submission on the scope of the claims, para. 2.20.
113 Thailand's second submission on the scope of the claims, para. 2.25
114 Thailand's second submission on the scope of the claims, para. 2.26.
115 Thailand's second submission on the scope of the claims, para. 2.26
116 Thailand's second submission on the scope of the claims, para. 2.28.
117 Thailand's first submission on the scope of the claims, paras. 2.5 and 2.9.
118 Thailand's first submission on the scope of the claims, paras. 2.7.

Philippines' claim under Article 7.1 would in Thailand's view run contrary to the requirements of due
process owed to it.119
7.56. The Philippines submits that the reference to Article 7 in its panel request, when read with
the narrative text, com plies with the requirement in Article 6.2 of the DSU to provide "a brief
summary of the legal basis of the complaint sufficient to present the problem clearly ". In the
Philippines' view, "Article 6.2 of the DSU does not prescribe that a complainant must id entify the
specific obligation at issue by identifying, using numerals, the individual subparagraph at issue.
A Panel request may also identify the specific obligation using words".120 In this respect, the
Philippines recalls that its panel request states "that each of the measures at issue is inconsistent
with Articles 2, 3, 4, 5, 6, and 7 of the CVA because, among other s, Thailand failed to comply with
the relevant valuation rules in establishing the alleged 'actual values' of the imported goods".121 In
the Philippines ' view, the words "relevant valuation rules " have the effect of i ndicating that the
Philippines brings a claim of inconsistency with Article 7.1 given that the valuation ru les that an
authority may use are only set forth in the first paragraph of Article 7.122 The Philippines also clarifies
that, unlike what is asserted by Thailand, it does not make any claims under Article 7.2 of the CVA,
but rather relies on this provision only as context for its claims under Articles 1.1. 1.2(a), 6.1 and
7.1 of the CVA.123
7.57. The Philippines also argues that it presented a timely prima facie case under Article 7.1. The
Philippines submits that it has done "nothing more than respond to Thailand's own shifting position",
and that its own due process rights have been undermined by "the consistent failure of Thailand's
authorities to explain their determinations, coupled with Thailand 's own shifting, ambiguous, and
misleading assertions in these proc eedings".124 The Philippines states that "as soon as it became
clear that Thailand was invoking the flexibilities in Article 7.1 " and was alleging that "its measures
might even fall under Article 7.1 ", the Philippines first set forth arguments under Article 7.1 in its
second written submission, and later invoked its claims under that provision in its response to the
Panel's questions.125 The Philippines explains that it could not pursue a claim under Article 7.1 from
the outset, i.e. in its first written submission, because it did not have the necessary information for
doing so, that is, the information that the Thai authorities had been unable to make a determination
under Article 6 and had resorted to Article 7. According to the Philippines, "prior to the response to
the Panel's pre-hearing questions, Thailand had never previously stated, in clear terms, that its
customs valuation determinations were made under Article 7, and that its authorities had not been
able to apply Article 6".126
7.1.3.3.3 Analysis by the Panel
7.1.3.3.3.1 General considerations
7.58. Article 6.2 of DSU provides in relevant part:
The request for the establishment of a panel shall be made in writing. It shall indicate
whether consultations were held, identify the specific measures at issue and provide a
brief summary of the legal basis of the complaint sufficient to present the problem
clearly.
7.59. The requirements under Article 6.2 to identify the specific measure(s) at issue and provide a
brief summary of the legal basis of the complaint sufficient to present the problem clearly are central
to the establishment of the jurisdiction of the panel. The "specific measure" identified in a panel
request is the "object of the challenge", or, more precisely, "the measure that is alleged to be causing

119 Thailand's first submission on the scope of the claims, paras. 2.6-2.8; Thailand's second submission
on the scope of the claims, para. 2.13.
120 Philippines' first submission on the scope of the claims, para. 43.
121 Philippines' first submission on the scope of the claims, para. 45.
122 Philippines' first submission on the scope of the claims, paras. 45-47.
123 Philippines' first submission on the scope of the claims, para.48.
124 Philippines' first submission on the scope of the claims, para. 49.
125 Philippines' first submission on the scope of the claims, para. 54.
126 Philippines' first submission on the scope of the claims, paras. 52-53; Philippines' second submission
on the scope of the claims, para. 58.

the violation of an obligation contained in a covered agreement".127 The "legal basis" of the complaint
or the "claim", in contrast, is the "specific provision of the covered agreement that contains the
obligation alleged to be violated ".128 Both elements constitute the "matter referred to the DSB ",
which forms the basis of the panel 's terms of reference under Article 7.1 of the DSU. 129 Thus, in
defining the scope of the dispute, Article 6.2 serves the function of establishing and delimiting the
panel's jurisdiction.130
7.60. The Appellate Body has repeatedly held that, in order for a panel request to comply with the
requirement under Article 6.2 of the DSU to provide a summary of the legal basis of the complaint,
the panel request must, at a minimum, list the articles of the covered agreements claimed to have
been violated.131 While the listing of treaty provisions is a necessary minimum prerequisite, there
may be situations where this may not be sufficient to present the problem clearly, as in instances
where the articles contain multiple and/or distinct obligations. 132 Also, in cases where the panel
request challenges a number of measures on the basis of multiple WTO provisions, providing "a brief
summary of the legal basis of the complaint sufficient to present the problem clearly may depend
on w hether it is sufficiently clear which 'problem' is caused by which measure or group of
measures".133 Additionally, the panel request must also "plainly connect the challenged measure(s)
with the provision(s) of the covered agreements claimed to have been infringed".134 Whether or not
a general reference to a treaty provision will be adequate to meet the requirement of sufficient
clarity under Article 6.2 is to be examined on a case -by-case basis, taking into account the extent
to which such reference sheds light on the nature of the obligation at issue. 135 Thus, the Appellate
Body has reiterated that the determination of whether a panel re quest is "sufficiently precise "
requires the scrutiny of the panel request "as a whole, and on the basis of the language used".136
7.61. While the identification of a claim in a panel request is a necessary prerequisite for a Panel to
rule on that claim, it is no t always a sufficient condition as other considerations might need to be
taken into account. In some circumstances, a panel may be precluded from ruling on a claim, even
where it is included in the panel request, if the complainant does not articulate the claim in a clear
and timely manner in its subsequent submissions. In such circumstances, the basis for the panel
being precluded from ruling on the claim is not that it falls outside of its terms of reference, but
rather that doing so would be inconsistent with the requirements of due process owed to the
respondent. Indeed, both parties in this dispute seem to share that understanding, as they have
framed their arguments regarding the timeliness of the Philippines ' claim under Article 7.1 of the
CVA in terms of due process.137
7.62. The Panel notes that there is no requirement in the DSU or in WTO practice for arguments on
all claims relating to the matter referred to the DSB to be set out in a complaining party's first written
submission to the panel.138 The panel process is a dynamic one where claims by the parties become

127 Appellate Body Report, EC – Selected Customs Matters, para. 130.
128 Appellate Body Report, EC – Selected Customs Matters, para. 130.
129 Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 639 (referring to
Appellate Body Reports, Guatemala – Cement I, paras. 72 and 73; US – Carbon Steel, para. 125; US –
Continued Zeroing, para. 160; US – Zeroing (Japan) (Article 21.5 – Japan), para. 107; and Australia – Apples,
para. 416).
130 Appellate Body Reports, Brazil – Desiccated Coconut, p. 22, DSR 1997:I, p. 186; US – Continued
Zeroing, para. 161; and EC and certain member States – Large Civil Aircraft, para. 640.
131 Appellate Body Reports, Korea – Dairy, paras. 123 and 124 (referring to Appellate Body Reports,
Brazil – Desiccated Coconut, p. 22, DSR 1997:I, p. 186; EC – Bananas III, paras. 145 and 147; and India –
Patents (US), paras. 89, 92, and 93); US – Carbon Steel, para. 130.
132 Appellate Body Report, Korea – Dairy, para. 124.
133 Appellate Body Reports, China – Raw Materials, para. 220.
134 Appellate Body Reports, China – Raw Materials, para. 220 (referring to Appellate Body Report,
US – Oil Country Tubular Goods Sunset Reviews, para. 162).
135 Appellate Body Report, US – Carbon Steel, para. 130 (referring to Appellate Body Report, Korea –
Dairy, para. 124).
136 Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 641 (referring to
Appellate Body Reports, US – Carbon Steel, para. 127; US – Oil Country Tubular Goods Sunset Reviews,
paras. 164 and 169; US – Continued Zeroing, para. 161; and US – Zeroing (Japan) (Article 21.5 – Japan),
para. 108).
137 Thailand's first submission on the scope of the claims, para. 2.6; Philippines' first submission on the
scope of the claims, paras. 57-66.
138 Appellate Body Report, EC – Bananas III, para. 145.

refined and elaborated through arguments and counter -arguments.139 The case law offers various
examples of panels having to deal with evolving and shifting argumentation by a party. 140 In cases
where en tirely new lines of argumentation emerge at an advanced stage of the proceeding,
adjudicators have sometimes ensured due process by allowing the other party to respond with an
additional submission.141
7.63. In some cases, however, panels or the Appellate Body have found that considerations of due
process precluded consideration of a claim that was not raised or supported by any arguments until
a late stage of the proceeding. In EC – Fasteners (China) the Appellate Body found that the panel
erred in ruling on a claim under Article 6.5 of the Anti -Dumping Agreement notwithstanding that it
was identified in the panel request, and thus within the Panel 's terms of reference. After reviewing
the manner in which the particular claim was pursued by the complaining party, the Appellate Body
explained that:
[T]he Panel record shows that China asserted its claim … only in response to questions
from the Panel, and articulated this claim only after the parties had provided the Panel
with written submissions and had attended a substantive meeting. We do not find that
assertions made so late in the proceedings, and only in response to questioning by the
Panel, can comply with either Rule 4 of the Panel 's Working Procedures, or the
requirements of due process of law. The late assertion of a claim …, and the absence of
proper argumentation and of the provision of relevant evidence in support of this
assertion, demonstrates that the European Union was not called upon to respond to
China's claim under Article 6.5.142
7.64. The Panel recalls that a similar issue arose in the original proceeding in this dispute. 143 The
Philippines introduced a claim under Article 4 of the CVA in its written responses to a second set of
questions from the panel, submitted after the second substantive meeting. Prior to that point, while
Article 4 was explicitly listed in the panel req uest, the Philippines had consistently maintained the
position that Article 4 was not relevant to its claim relating to valuation methodologies under Articles
5 and 7 and had neither specifically referenced a violation of Article 4, nor provided evidence o r
specific arguments to demonstrate a violation of that provision. Given the absence of reference to
or arguments concerning Article 4 until the last stage of the panel proceedings and the Philippines'
prior statements on the irrelevance of Article 4 throughout the proceeding, the panel found that the
Philippines' claim under Article 4 was "neither timely nor specific enough to warrant its inclusion in
the Philippines' request for findings and recommendations".144
7.65. The Panel considers the two main issues raise d by Thailand to be the consistency, or lack
thereof, of the Philippines' claim under Article 7.1 with Article 6.2 of the DSU as well the timeliness
of this claim. The Panel will analyse these issues in turn.
7.1.3.3.3.2 Article 6.2 of the DSU
7.66. The panel request states that the 1,052 revised NoAs and the 2002-2003 Charges "are
inconsistent with … Articles 2, 3, 4, 5, 6 and 7 of the CVA, because, among others, Thailand failed
to comply with the relevant valuation rules in establishing the alleged 'actual values' of the imported
goods".145 The issue raised by Thailand's objection is whether this item of the panel request suffices
to "provide a brief summary of the legal basis of the complainant sufficient to present the problem
clearly" for purposes of Article 6.2. Thailand does not take issue with the fact that the panel request
simultaneously identifies all of these CVA provisions covering all of the alternative valuation methods
under the CVA; rather, Thailand 's objection is confined to the fact that the reference to Article 7

139 Panel Report, India – Patents (US), para. 7.13.
140 See e.g. Panel Reports, EC – Bed Linen (Article 21.5 – India), para. 6.28; US – Clove Cigarettes,
paras. 7.84ff; US – Shrimp (Viet Nam), para. 7.170; and EC – Salmon (Norway), para. 7.609. See Appellate
Body Report, EU – Fasteners (China), paras. 433-434.
141 See e.g. Decision by the Arbitrator, Canada – Aircraft Credits and Guarantees (Article 22.6
– Canada), para. 2.16; Panel Report, Australia – Salmon, paras. 8.22ff.
142 Appellate Body Report, EC – Fasteners (China), para. 574. See also Panel Report,
Morocco — Hot Rolled Steel (Turkey), para. 7.64.
143 Panel Report, Thailand — Cigarettes (Philippines), paras. 7.271-7.278.
144 Panel Report, Thailand — Cigarettes (Philippines), para. 7.278.
145 WT/DS371/22, paras. 14 and 20.

does not specify which of its subparagraphs and obligations is at issue. On that basis, Thailand
argues that the reference to Article 7 does not meet the requirements of Article 6.2, and therefore
the Philippines' alternative claim under Article 7.1 falls outside of the panel's terms of reference.
7.67. The Panel considers that in cases where the complaining party is unable to obtain from the
respondent certain information regarding the content of the measures at issue , this will naturally
have a bearing on the degree of specificity that could reasonably be expected in identifying the legal
basis for the complaint for purposes of Article 6.2 of the DSU. The Appellate Body has confirmed
that this is so with respect to the degree of specificity expected with respect to the identification of
the specific measures at issue146, and the Panel sees no reason why the same logic would not apply
in the context of assessing whether a panel request identifies "the legal basis of the c omplaint
sufficient to present the problem clearly ".147 In the Panel's view, while a complainant must always
comply with this requirement, regardless of any difficulties it faces in obtaining relevant information,
such difficulties in obtaining relevant information may be highly germane to the appraisal of what is
"sufficient" to present the problem "clearly" in the circumstances of a particular case.
7.68. Turning to the circumstances of this case, it is not in dispute that the Thai authorities provided
PMTL with very limited information on how they established the "actual value" in the NoAs, and on
how they established the "actual price" in the 2002 -2003 Charges. The Thai authorities did not
inform PMTL of the customs valuation method used to determine those custo ms values at the time
that the 2002 -2003 Charges were issued, or at the time when the NoAs were sent. Following a
request for information from PMTL, the Thai Customs Department did provide PMTL with limited
information regarding the basis for determining the "actual value" in the NoAs, but that information
still fell short of specifying the exact customs valuation method that was used. PMTL's similar request
for an explanation sent to the Public Prosecutor received no response from the latter. It appears to
be an uncontested fact that, at the time the Philippines prepared its panel request, neither PMTL nor
the Philippines had been told by the Thai authorities specifically which (if any) of the customs
valuation methods in Articles 2 through 7 of the CVA was used to calculate the "actual value" in the
NoAs and the "actual price" in the 2002-2003 Charges.
7.69. The lack of information regarding the customs valuation method used is expressly reflected
in the panel request. It states in relevant part that the NoAs provide that the DSI calculated the
"actual value" on the basis of documents completed by PM Indonesia, which were obtained from the
Indonesian government, "but provide[d] no further explanation on the valuation methodology ".148
The panel request likewise states that "neither the 2002-2003 Charges nor the annex state the basis
for the conclusions that the declared prices are 'false' and that the declared prices should be replaced
by alternative 'actual' customs values".149 It is in this context that the panel request proceeds to
state that 1,052 revised NoAs and the 2002 -2003 Charges "are inconsistent with (…) Articles 2, 3,
4, 5, 6 and 7 of the CVA, because, among others, Thailand failed to comply with the relevant

146 In EC and certain member States – Large Civil Aircraft, the Appellate Body stated that "[w]hether a
measure can be identified in conformity with the requirements of Article 6.2 may, as is the case here, depend
on the extent to which that measure is specified in the public domain." The Appellate Body stated that it did
"not understand Article 6.2 to impose a standard that renders it more difficult to challenge a measure simply
because information in the public domain concerning that measure is of a general character", and that "the
lack of specification in the public domain should not shield this particular measure from challenge simply
because greater detail in the form of, for example, an identifiable programme name was publicly available in
respect of the other measures". The Appellate Body noted that in the circumstances of that case, "it is still not
clear to us what additional degree of specificity could reasonably have been expected regarding the
identification of R&TD funding allocated through the French Government's budgetary process", and concluded
that "[t]aking into account the public information that existed regarding the French R&TD funding at the time
of the United States' panel request", the description set out therein "was sufficiently precise" to establish that
the funding challenged by the United States was within the Panel's terms of reference. (Appellate Body Report,
EC and certain member States – Large Civil Aircraft, para. 648.)
147 In EU – Energy Package, the panel recalled the Appellate Body's analysis above, and stated that
"[w]e similarly consider that, a complainant's ability to 'provide a brief summary of the legal basis of the
complaint in order to present the problem clearly' might be affected by the availability of relevant information
in the public domain. In our view, it may well be open to a complainant to argue, with due substantiation, that
information pertinent to its claim was not publicly available and that, as a consequence, its ability to comply
with the requirements of Article 6.2 of the DSU was affected." (Panel Report, EU – Energy Package,
para. 7.213.)
148 WT/DS371/22, para. 11.
149 WT/DS371/22, para. 19.

valuation rules in establishing the alleged 'actual values' of the imported goods".150 This is followed
by a claim under Article 16, on the basis that "Thailand has failed to provide, upon written request,
a written explanation as to how the customs values of the imported goods were determined".151
7.70. The Panel considers that in some cases, a panel request that claims a violation of "the relevant
valuation rules" under all of the different alternative customs valuation methods set forth in Articles 2
through 7 would not suffice to identify the legal basis of the complaint in a manner "sufficient to
present the problem clearly ". The reason is that each of Articles 2 (identical goods), 3 (similar
goods), 5 (deductive value method), and 6 (computed valu e method) provide s for a specific and
distinct valuation method, and the relationship between these provisions and methods is such that
the determination of a revised customs value generally cannot be subject to two or more of these
provisions simultaneously, let alone all of them. Furthermore, while Article 7 (reasonable flexibility)
is, by its nature, slightly different from other provisions in that it allows the use of the valuation
methods laid down in Articles 1 through 6 with a reasonable flexibility, it also applies to the exclusion
of the other methods.152
7.71. Having said that, in the circumstances of this case it is not clear what additional degree of
specificity could reasonably have been expected from the Philippines in terms of identifying the
"relevant valuation rules " in Articles 2 through 7 with sufficient precision, taking into account the
limited information that was communicated to it regarding the basis for calculating the "actual"
value/price in the challenged measures. Therefore, the Panel is not persuaded that the Philippines
was required to specify which one of the different customs valuation methods in Articles 2 through
7 constituted the basis of its claim. It sufficed for the panel request to state that the 2002-2003
Charges "are inconsistent with … Articles 2, 3, 4, 5, 6 and 7 of the CVA", without further specification
as to which of one of these different articles was applicable. A fortiori, if such specification was not
required at the level of these different articles, then the Panel is not persuaded that the Philippines
had to go even further and specify which of the three subparagraphs and obligations within Article 7
it was invoking.153
7.72. For the foregoing reasons, the Panel considers that it is unnecessary to proceed with an
analysis of whether it is sufficiently clear from the panel request which obligation(s) in Article 7
would be the one(s) at issue, if the "relevant valuation rules" were those found in Article 7, as
opposed to Articles 2, 3, 5 or 6 of the CVA. Assuming arguendo that it is necessary to continue
further in assessing Thailand's objection that the Philippines failed to identify the specific paragraph
of Article 7, the Panel considers that in the circumstances of this case it is sufficiently clear that the
Philippines' general reference to "Article 7 " in the panel request would cover a claim under
Article 7.1. The panel request does not identify any specific paragraph(s) of Article 7 , but this
becomes apparent from a consideration of the irrelevance of Article 7.3 in this case, and the nature
of the interrelationship between Articles 7.1 and 7.2.
7.73. The Panel notes that Article 7 of the CVA has three subparagraphs.154 Article 7.1 is a general
provision which provides that if the customs value of the imported goods cannot be determined
under the provisions of Articles 1 through 6, it shall be determined "using reasonable means
consistent with the principles and general provisions of this Agreement and of Articl e VII of GATT
1994 and on the basis of data available in the country of importation". Article 7.2 is the more specific
provision, as it specifies seven specific bases for customs valuation that are prohibited (e.g.
minimum customs values), and that may not be used when applying reasonable flexibilities under
Article 7.1. The third paragraph then sets forth the procedural obligation that, if the importer so
requests, it "shall be informed in writing of the customs value determined under the provisions of
this Article and the method used to determine such value".

150 WT/DS371/22, paras. 14 (second bullet) and 20 (second bullet).
151 WT/DS371/22, paras. 14 (second bullet) and 20 (third bullet).
152 Panel Report, Thailand — Cigarettes (Philippines), para. 7.285.
153 The Panel notes that the Philippines' panel request in the first recourse to Article 21.5 also advanced
multiple alternative claims under mutually exclusive CVA provisions in respect of the 2003-2006 Charges.
Specifically, it made alternative claims that the determination of the "actual price" in those Charges was
inconsistent with Article 2.1, Article 3.1, and Articles 7.1. and 7.2.
154 The text of Article 7 is reproduced below at paragraph 7.350.

7.74. The Panel considers that Article 7.3 is not relevant to the Philippines ' complaint in the
circumstances of this case. 155 As the original panel noted, "the request for information under
Article 7.3 would become possible only if the importer was already aware at the time of requesting
that the customs authority had relied on a valuation method under Article 7."156 In this case, Article 7
was raised for the first time by Thailand in the context of this panel proceeding, and the Thai
authorities never gave any indication to PMTL that they had relied on a valuation method under
Article 7. Accordingly, there would have been no basis for PMTL to make the kind of request
contemplated in Article 7.3, and it made no such request. Consequently, there would be no basis for
the Philippines to make a claim under Article 7.3, or for Thailand to read the reference to Article 7
as embracing such a claim. This reading is further reinforced by the fact that the ensuing bullet in
the panel request specifically alleges a violation of the procedural obligation in Article 16, which is
similar if not identical to the procedural obligation in Article 7.3. 157 It follows that, in the
circumstances of this case, the general reference to A rticle 7 can only be construed as a reference
to Article 7.1. and/or Article 7.2.
7.75. The Panel considers that the relationship between Article 7.1 and 7.2 is such that a customs
valuation determination could be claimed to violate Article 7.1 without necessar ily violating any
provision of Article 7.2. The reason is that subparagraphs (a) through (g) of Article 7.2 do not
necessarily exhaust the universe of customs valuation bases that are not "reasonable" or "consistent
with the principles and general provisio ns" of Articles 1 to 7. Accordingly, there could be a stand -
alone claim that a customs valuation determination violates Article 7.1. However, the Panel observes
that the seven bases for customs valuation identified in subparagraphs (a) through (g) are
categorically prohibited, which in and of itself implies that they cannot be "reasonable" or "consistent
with the principles and general provisions " within the meani ng of Article 7.1. This conclusion is
reinforced by the content of those enumerated bases, which include several bases for customs
valuation that are inherently prohibited by the basic principles and general provisions of the CVA ,
such as the reliance on minimum customs values, and "arbitrary or fictitious values". This suggests
that any customs valuation determination that is considered to violate Article 7.2 would likely also
be considered to violate Article 7.1.
7.76. Based on this understanding of the relationship between provisions of Articles 7.1 and 7.2, it
follows that a claim under the more general provisions of Article 7.1 would not necessarily imply a
claim under the more specific provisions of Article 7.2, but that a claim under the more specific
provisions of the latter should almost always be accompanied by, and may presuppose, a violation
of the general provision of Article 7.1. Based on the foregoing, the Panel considers that the reference
to Article 7 in the panel request embraces at least a claim under Article 7.1.
7.77. This conclusion is not altered by certain considerations relating to the concise narrative that
accompanies the listing of Articles 2 to 7 in the panel request. As indicated above, the Philippine s'
panel request states that the Thai authorities acted inconsistently with Articles 2 to 7 because they
"failed to comply with the relevant valuation rules in establishing the alleged 'actual values' of the
imported goods". In this respect, Thailand contends that the phrase "relevant valuation rules", as
used in the panel request, is generic and overly vague, and could cover "not only the various sub-
paragraphs of Article 7, but also all other provisions in Part I of the CVA (that is, Articles 1 – 17)"
which is titled "Rules on Customs Valuation ".158 The Philippines argues that Article 7 .1 is the only
provision setting forth "affirmative" valuation rules that an authority may use in establishing the
customs value, and that the phrase "relevant valuation rules " can therefore only refer to that
paragraph and no other paragraph.159 The Panel is not persuaded by that argument, and considers
that the phrase "relevant valuation rules" as used in the Philippines' panel request could reasonably
be understood as referring not only to the valuation rules contained in Article 7 .1, but also those
contained in Article 7.2. Having said this, the fact that the language of the Philippines' panel request
may be read as also referring to Article 7.2 does not alter the conclusion that the reference to

155 The Panel notes that in some prior cases that raised the issue of whether a general reference to a
provision allowed for the identification of the relevant claims, panels and the Appellate Body have reasoned by
process of elimination. See e.g. Appellate Body Report, US — Countervailing and Anti-Dumping Measures
(China), para. 4.22.
156 Panel Report, Thailand — Cigarettes (Philippines), para. 7.394.
157 Panel Report, Thailand — Cigarettes (Philippines), para. 7.393.
158 Thailand's second submission on the scope of the claims, para. 2.26.
159 Philippines' second submission on the scope of the claims, para. 30.

Article 7 includes a claim under Article 7.1.160 In sum, the Panel considers that, read in light of the
accompanying narrative, the reference to Article 7 of the CVA necessarily encompasses a claim under
Article 7.1 of the CVA, whether or not it also encompasses a claim under Article 7.2.
7.78. In the light of the foregoing, the Panel concludes that the relevant item of the panel request
suffices to "provide a brief summary of the legal basis of the complainant sufficient to present the
problem clearly " for purposes of Article 6.2, and that the Philippines ' alternative claim under
Article 7.1 falls within the Panel's terms of reference.
7.1.3.3.3.3 Timeliness of the Philippines' alternative claim
7.79. Thailand maintains that even to the extent that any claims by the Philippines under Article 7
of the CVA could be said to validly be within the Panel 's terms of reference, the Philippines has in
any case failed to advance such claims in a timely manner and cannot therefore be considered to
have made a timely prima facie case in this respect. As the Panel understands it, in Thailand's view,
the Philippines was in possession of enough inform ation, from the beginning of the dispute, to be
able to raise claims under Article 7 in its panel request, and develop arguments in support of its
claims in its first and second written submissions, but the Philippines failed to do so. For its part, the
Philippines responds that it: (1) included a claim under Article 7.1 in its panel request; (2) set forth
supporting arguments in its second written submission, and indicates that it had not been able to
do so earlier, that is in its first written submission, because at that time "the available evidence did
not warrant making arguments under Article 7.1"161, and (3) asserted in its responses to the Panel's
questions that the Panel could address claims under both Articles 6 and 7 because both provisions
were part of the Panel's terms of reference.162
7.80. The Panel recalls that, as explained above, despite an adequate identification of a claim in a
panel request, a panel may refrain from ruling on that claim in circumstances where it is shown that
doing so would have the effect of breaching the requirements of due process owed to the respondent.
This could be the case where, as a result of the complainant failing to articulate the claim in a clear
and timely manner, the respondent is not afforded a meaningful opportunity to respond adequately
to the claim. The Panel will sequentially consider the following questions on which the parties appear
to disagree: first, when was the Philippines in a position to advance a claim and rais e arguments
under Article 7.1? Second, at what stage of these proceedings did the Philippines actually raise its
claim under Article 7.1 and advance relevant supporting arguments? Addressing these questions will
enable the Panel to assess whether the Philippines raising its claim and advancing it s arguments in
the manner that it did resulted in Thailand being deprived of a meaningful opportunity to respond
and thereby violating Thailand's due process rights.
7.81. The Panel recalls the following chronology of events which form the factual background
pertaining to the evolution of the Philippines' claims regarding Articles 6 and 7 in this proceeding:
a. After the issuance of the MoA leading to the 2002 –2003 Charges on 22 September
2016, and also after the issuance of the 1,052 revised NoAs on 29 November 2 017,
PMTL wrote to the relevant authorities (the DSI and the Public Prosecutor for the

160 In US — Countervailing and Anti-Dumping Measures (China), the panel request alleged a violation of
"Article 19" of the SCM Agreement, without identifying which of its four subparagraphs and obligations was at
issue. The panel considered that Articles 19.1 and 19.2 were irrelevant, and that the two "potentially relevant
obligations" were those set forth in Articles 19.3 and 19.4. The panel then proceeded to infer from certain
elements of the panel request that Article 19.4 should also be excluded from consideration. On appeal, the
Appellate Body upheld the panel's finding that the respondent could reasonably infer from the reference to
Article 19 that the complaining party was making a claim under Article 19.3, but the Appellate Body disagreed
with the panel's conclusion that the reference to Article 19 could not be read as potentially also extending to
Article 19.4. The Appellate Body did not consider it necessary to resolve the question of whether the reference
to Article 19 covered only Article 19.3, or also Article 19.4. Evidently, the Appellate Body did not consider the
lack of resolution of that question an impediment to the conclusion that the reference to Article 19 included, at
minimum, a claim under Article 19.3. (See Appellate Bod Report, US — Countervailing and Anti-Dumping
Measures (China), para. 4.43-4.44.)
161 Philippines' second submission on the scope of the claims, para. 48.
162 Philippines' first submission on the scope of the claims, para. 50.

Charges and the Customs Department for the revised NoAs) 163, requesting in each
instance explanations as to the reasons behind the rejection of the transaction values
and the basis for calculating the alternative actual customs values. In their respective
responses to PMTL's letters, the DSI and the Public Prosecutor on the one hand164, and
the Customs Department on the other hand165, do not appear to have provided any of
the explanations requested by PMTL.
b. In its panel request, the Philippines stated that the 1,052 revised NoAs and the 2002 -
2003 Charges are inconsistent with, inter alia, the relevant valuation rules in Articles 2
to 7 of the CVA because Thailand failed to comply with the relevant valuation rules in
establishing the alleged actual values.166
c. In its first written submission, the Philippines argued that both the Customs Department
and the Public Prosecutor violated Article 6 of the CVA by determining the actual
customs value through improper use of the computed value method.167 The Philippines
referred to the obligation in Article 7.1 and 7.2 as relevant context for its claims under
Articles 1.2(a) and 6, but did not assert any separate, alternative claim of violation
under Article 7.168
d. In response to the Phi lippines' claim and arguments concerning Article 6, Thailand
responded, in its first written submission, that its authorities determined the customs
value by "appl[ying] the computed value method" with "a reasonable flexibility "
provided for under Article 7, and that "by acting consistently with Article 7.1 of the CVA,
the Prosecutor [and the Customs Department] [did] not contravene Article 6 of the
CVA".169 Thailand responded to Philippines' claims regarding the sequential application
of customs valuation methods that "none of the alternative methods in Articles 2-5 could
be used to determine customs value "170, implying that any revised value had been
determined under Article 6, and not Article 7.
e. In response to Thailand raising Article 7, the Philippines argued in its second written
submission, that it is impermissible to import the "reasonable flexibility" of Article 7 into
Article 6, and in any event neither the Public Prosecutor nor the Customs Department
used "reasonable flexibility" in determining the customs value. 171 The Philippines still
understood Thailand to be arguing that the "reasonable flexibility" of Article 7 could be
imported into Article 6, and thus developed these arguments in the context of advancing
its claim of inconsistency under Article 6.172
f. In its second written submission, Thailand restated its position that the 2002 -2003
Charges "are not inconsistent with Article 6 because the method of valuation used by

163 In relation to the 2002-2003 Charges, PMTL sent letters to the DSI on 7 and 28 October 2016 and to
the Public Prosecutor on 14 November 2016. In relation to the 1,052 revised NoAs, PMTL wrote to the Customs
Department on 14 December 2017 and 25 January 2018.
164 In relation to the 2002-2003 Charges, the DSI in its response to PMTL dated 3 November 2016
stated that its legal actions against PMTL were lawful and directed PMTL to the Public Prosecutor for further
information; and the Public Prosecutor in its response to PMTL dated 8 December 2016 indicated that the
matter was under review. (Letter from the DSI to PMTL, 3 November 2016 (English translation), (Exhibit PHL-
276-B); and Letter from the Public Prosecutor to PMTL, 8 December 2016 (English translation), (Exhibit PHL-
243-B))
165 In relation to the 1,052 revised NoAs, the Customs Department, in its response of 10 January 2018,
indicated that the "[DSI] prepared the table summarizing the CIF prices … for the Customs Department to
assess the value and calculate the taxes and duty which were not fully paid" and advised PMTL to inquire
directly from DSI for relevant information. (Letter from the Customs Department to PMTL, 10 January 2018
(English translation), (Exhibit PHL-250-B).)
166 WT/DS371/22, paras. 14 and 20.
167 Philippines' first written submission, sections IV.B.4 and V.B.5.
168 Philippines' first written submission, paras. 213 and 256, and footnotes 160 and 199.
169 Thailand's first written submission, section 3.4.4.
170 Thailand's first written submission, para. 3.102; Thailand's second written submission, para. 3.74.
(emphasis added)
171 Philippines' second written submission, sections III.B.3 and IV.C.3.

the Public Prosecutor falls under Article 7 of the CVA ".173 Thailand reiterated its
arguments as to why, in its view, the Public Prosecutor "applied the computed value
method with a reasonable flexibility that consists of relying on information provided by
Indonesian authorities without subsequently verifying it ".174 On that basis, Thailand
concluded that the Panel should find that the 2002-2003 Charges "are not inconsistent
with Article 6 of the CVA".175
g. In a set of written questions which the Panel sent to the parties in advance of the
hearing, the Panel solicited the parties ' views on the appropriateness of the Panel
making alternative findings under Articles 6 and 7 and the scope of the parties ' claims
and defences under those provisions:
i. In its responses to these questi ons, the Philippines affirmed that ( 1) there are
fundamental obligations regarding the required nature and quality of cost and
profit information used for customs valuation purposes that "apply equally to
determinations made under Articles 1.1, 1.2(a), 6 a nd 7", and that the CK -21A
information "cannot be a basis for a proper valuat ion under Article 6 (or
Article 7)"176; ( 2) the Thai authorities rejected PMTL 's (declared) transaction
values, and/or determined a revised customs value, based on "the price of goods
on the domestic market of the country of exportation " within the meaning of
Article 7.2(c)177; and (3) as the Panel's terms of reference included claims under
both Articles 6 and 7 of the CVA and as the Philippines had made and argued a
claim under each provision, the Panel could make alternative findings under the
two provisions if it considers that it is unclear which of these two provisions was
applied.178
ii. In response to a question asking Thailand to clarify whether its arguments on the
"reasonable flexibility" in Article 7 should be taken to mean that Thailand was
acknowledging that any customs valuation determination reflected in the
measures was incons istent with Article 6, Thailand stated that "the valuation
decision was made under Article 7.1. The WTO-consistency of the valuation must
be assessed under Article 7.1, not Article 6."179
h. At the substantive meeting of 29 October 2018, the Philippines stated in its opening and
closing statements that the 1,052 revised NoAs and the 2002 -2003 Charges violate
Articles 1.1, 1.2(a), 6, and 7 of the CVA and explained, inter alia, that the flexibilities
in Article 7.1 do not extend to allowing the use of the valuatio n methods prohibited in
Article 7.2.180 This led Thailand to object, at the hearing, to the Philippines ' reference
to a claim under Article 7, on the grounds that it was untimely and not adequately
specified in the panel request.
7.82. Thus, the first indication that the Thai authorities may have used Article 7 as the basis for
valuing the imported goods, or otherwise considered Article 7 relevant, appeared in Thailand's first
written submission. Prior to that point, all that had been explained to the importer was that the
determination of the actual values was based on "the cigarette cost structure of PT Philip Morris
Indonesia". In the Panel's view, it is difficult to see in this explanation any indication on the part of
the Thai authorities that they had resorted to Article 7.1, such that that the Philippines would have
been provided with a basis for asserting a claim and supporting arguments under that provision ,
separate from its claim and supporting arguments under Article 6 . In these circumstances , the
Philippines cannot reasonably be said to have been in a position to assert a claim and advance
arguments under Article 7.1 at the time it submitted its first written submission.

173 Thailand's second written submission, para. 3.79.
174 Thailand's second written submission, para. 3.79.
175 Thailand's second written submission para. 3.81.
176 Philippines' response to Panel question No. 141, paras. 115 and 117.
177 Philippines' response to Panel question No. 146.
178 Philippines' response to Panel question No. 157.
179 Thailand's response to Panel question No. 156, para. 8.1.
180 Philippines' opening statement at the meeting of the Panel, paras. 84-88; and closing statement at
the meeting of the Panel, para. 13.

7.83. After being made aware through Thailand's first written submission that Thailand was relying
on Article 7.1, the Philippines, in its second written submission, objected to Thailand 's reliance on
Article 7.1 by claiming that the "specific flexibility " invoked by Thailand does not fall within the
meaning of "reasonable flexibility" as envisaged by Article 7 , and the Philippines provided detailed
arguments as to why Thailand's customs valuation determinations could not be justified under Article
7.1. It did so in the context of setting out its claim under Article 6. Specifically, in section III.B.3 of
its second written submission, the Philippines first set out its interpretation of the term "reasonable
flexibility" by formulating what it views as the proper legal standard under Article 7. The Philippines
then proceeded to apply the legal standard to the facts of this case in order to reach the conclusion
that, by relying on CK-21A information that was not subsequently verified in terms of its accuracy,
the Thai Customs Department did not use "reasonable flexibility" within the meaning of Article 7.
7.84. While recognizing that the Philippines presented these detailed arguments on Article 7.1 in
the context of substantiating its claim under Article 6, apparently on the understanding that
Thailand's argumentation aimed to read the flexibilities of Article 7 into Article 6, the Panel considers
that it would be putting form over substance to conclude that section III.B.3 of the Philippines '
second written submission is not tantamount to a properly articulated and argued claim of
inconsistency with Article 7.1. That th is claim and its supporting arguments are made by the
Philippines in the context of demonstrating that the Customs Department violated Article 6, as
highlighted by Thailand181, does not, in the Panel's view, take away from the fact that they purport
to demonstrate, on an arguendo basis and in the alternative, that the customs valuation
determinations reflected in the 2002 -2003 Charges and the 1,052 revised NoAs are also not
consistent with the methodology in Article 7.1. Moreover, while the Philippines does not explicitly
request the Panel to make findings in respect of its claim under Article 7 in its second written
submission, it subsequently reaffirms in its written responses to questions from the Panel that since
it had made and argued claims under both Articles 6 and 7, the Panel could make alternative findings
under each provision. 182 In the light of the foregoing, the Panel con siders that the Philippines
effectively asserted its claim under Article 7.1 and adduced supporting arguments in its second
written submission, which was the earliest possible opportunity for doing so, and reaffirmed its
request for alternative findings under that provision in its responses to questions from the Panel.
7.85. The Panel has explained above that a respondent's due process right would be breached, inter
alia, in situations where the respondent is not afforded an opportunity to respond to a claim raised
against it. In the circumstances of this case, the Panel does not consider that Thailand's due process
rights would be violated if the Panel were to rule on the Philippines' alternative claim under Article
7.1 of the CVA. As the Panel has made clear above, the Philippines has adequately included in its
panel request a claim under Article 7, which the Philippines asserted and supported with arguments
in its second written submission, and which the Philippines clarified was an alternative claim that
could be the subject of alternative findings by the Panel.
7.86. While it may in general be desirable that a complainant assert all claims and advance all
pertinent arguments in its first written submission so as to allow the respondent to respond to them
as early as possible, nothing in the DSU or in WTO practice requires this in all cases . In the
circumstances of this case, the Philippines was arguably not in any position to do so. Of greater
importance, however, is the fact that Thailand still had ample opportunity to address the Philippine's
detailed argumentation under Article 7.1 in its own second written submission, in its responses to
the pre-hearing written questions from the Panel, at the hearing with the Panel, and in its responses
to the Panel's post-hearing questions. In these circumstances, the Panel is of the view that Thailand's
due process rights would not be breached if it were to entertain the Philippines ' alternative claim
under Article 7.1. Indeed, it was Thailand, not the Philippines, that sought to rely on Article 7 in the
first place.
7.87. This conclusion is reinforced by another consideration. There has been a persistent ambiguity
in Thailand's position, apparently linked to its uncertainty as to whether there is any clear binary
distinction between the methods under Articles 6 and 7, and as a result it is actually still not clear
whether it is of the view that any customs valuation determination made by its authorities was made
on the basis of Article 6, or instead on the basis of Article 7. In its responses to the post -hearing
questions sent by the Panel, Thailand formulate d its position in terms that circled back to the idea

181 Thailand's second submission on the scope of the claims, para. 2.14.
182 Philippines' response to Panel question No. 157.

that any revised customs value was determined on the basis o f Article 6, incorporating the
reasonable flexibilities of Article 7. It stated that the authorities "applied the computed method under
Article 6, taking advantage of the flexibilities allowed under Article 7.1 "183; and that as it "has
previously explained, the values were calculated on the basis of the methodology in Article 6, using
the flexibilities allowed under Article 7.1".184 In its comments on the Interim Report, Thailand stated
that it "repeatedly (and accurately) described the determination as having been made using the
Article 6 method as a base and using the flexibilities under Article 7", and "made clear that it was
for the Panel to decide whether, as a legal matter, such a determination should be characterized as
made under Article 6 or Article 7" .185 Given the way that Thailand's arguments on this issue have
unfolded – including its apparent uncertainty of the existence of any clear binary distinction between
the methods under Articles 6 and 7 – the Panel does not consider that Thailand's due process rights
would be violated if the Panel were to rule on the Philippines' alternative claim under Article 7.1 of
the CVA.
7.1.3.3.4 Conclusion
7.88. For these reasons, leaving aside whether the Thai authorities' determination of the "actual"
value/price of PMTL's imports is governed, as claimed by the Philippines, by the provisions of Article 6
of the CVA concerning the computed value method or is instead determined using the reasonable
flexibilities prov ided for in Article 7 as Thailand seems to assert , the Panel concludes that the
Philippines' alternative claim under Article 7.1 falls within the Panel 's terms of reference, and is
properly before the Panel.
7.1.3.4 The Philippines' standing to challenge measures concerning PMTL's imports from
Indonesia
7.89. While some of the measures at issue in the original proceeding and the first recourse to Article
21.5 concerned imports into Thailand from the Philippines, the measures at issue in this proceeding
relate exclusi vely to cigarettes that PMTL imported from Indonesia. The Panel asked Thailand
whether it accepts that the Philippines has standing to challenge the measures, notwithstanding that
they pertain exclusively to entries that PMTL imported into Thailand from the supplier based in
Indonesia. Thailand responded that "this is a matter for the Panel to resolve concerning its
jurisdiction, in light of the existing jurisprudence ".186 In the light of Thailand's response, and given
that a panel must consider on its own initiative any issues of jurisdiction, and any other issues of a
"fundamental nature"187, the Panel addresses this issue below.
7.90. The Appellate Body in EC – Bananas III considered the issue of whether the United States,
which did not at the time export bananas, had "standing" to bring a claim under the GATT a gainst
the European Communities. The Appellate Body observed that "neither Article 3.3 nor 3.7 of the
DSU nor any other provision of the DSU contain any explicit requirement that a Member must have
a 'legal interest' as a prerequisite for requesting a panel", and further stated that it did "not accept
that the need for a 'legal interest' is implied in the DSU".188 The Appellate Body further considered
that there was no general rule under international law requiring that a complaining party must have
a "legal interest"189, and that the language of both Article XXIII:1 of the GATT 1994 and Article 3.7
of the DSU suggests that a Member "has broad discretion in deciding whether to bring a case against
another Member under the DSU".190

183 Thailand's response to Panel question No. 167, para. 4.2.
184 Thailand's response to Panel question No. 169, para. 5.4.
185 Thailand's request to review the Interim Report, para. 2.12.
186 Thailand's response to Panel question No. 159, para. 1.3.
187 The Appellate Body has referred to "certain issues of a fundamental nature" that a panel must deal
with, if necessary on its own motion, in order to satisfy itself that it has the "authority" to proceed. (Appellate
Body Report, Mexico – Corn Syrup (Article 21.5 – United States), para. 36.) As the Appellate Body has
observed with respect to jurisdictional issues in particular, "it is a widely accepted rule that an international
tribunal is entitled to consider the issue of its own jurisdiction on its own initiative, and to satisfy itself that it
has jurisdiction in any case that comes before it". (Appellate Body Report, US – 1916 Act, footnote 30) See
also Decision by the Arbitrator, US – COOL (Article 22.6 – United States), paras. 2.6-2.7.
188 Appellate Body Report, EC – Bananas III, para. 132.
189 Appellate Body Report, EC – Bananas III, para. 133.
190 Appellate Body Report, EC – Bananas III, paras. 134-135.

7.91. In any event, the Appellate Body then stated its view that, on the facts of the case, the United
States was "justified in bringing its claims under the GATT 1994 in this case ", taking into account
that "[t]he United States is a producer of bananas, and a potential export interest by the United
States cannot be excluded".191 The Appellate Body added that "[t]he internal market of the United
States for bananas could be affected by the EC banana regime, in particular, by the effects of that
regime on world supplies and world prices of bananas".192 The Appellate Body also agreed with the
panel's statement that "with the increased interdependence of the global economy, ... Members
have a greater stake in enforcing WTO rules than in the past since any deviation from the negotiated
balance of rights and obligations is more likely than ever to affect them, directly or indirectly".193
7.92. In several subsequent proceedings where similar issues were raised, panels have concluded
that the complaining Member had the requisite interest to initiate proceedings despite the apparent
absence of any exports of the product(s) at issue to the territory of the responding Member. For
example, in Colombia – Ports of Entry, the panel ruled that "Panama currently produces apparel for
export, has stated its interest in exporting domestically produced footwear and other apparel in the
future, and stated its potential to manufacture textiles in the future. In the Panel 's view, Panama
has sufficiently demonstrated its interest in a determination of rights and obligations under the WTO
Agreement."194
7.93. The measures at issue relate to the valuation of goods for purpose s of levying ad valorem
duties on PMTL 's imports of Marlboro and L&M cigarettes. PMTL currently imports substantial
volumes of Marlboro and L&M cigarettes into Thailand from the Philippines. These imports are
subjected to customs valuation determination s by the Thai authorities on a recurring basis. Thus,
any measure that relates to customs valuation practices affecting the Thai importer that now sources
from the Philippines has the very real potential to affect future exports of cigarettes from the
Philippines to Thailand. Insofar as these measures threaten the continued viability of PMTL 's
operations in Thailand, then they have the potential to end or otherwise impair exports of cigarettes
from the Philippines to Thailand.195
7.94. The Panel further note s that the parties ' claims and defences relating to the 2002 -2003
Charges in this proceeding could be said to be inextricably interwoven with their arguments relating
to the 2003-2006 Charges at issue in the first compliance proceeding, which cover imports from the
Philippines. In EC – Bananas III, the Appellate Body 's analysis of the United States ' standing to
challenge the EC measures at issue appeared to accord some weight to the fact that "there is no
challenge here to the standing of the United States u nder the GATS, and that the claims under the
GATS and the GATT 1994 relating to the EC import licensing regime are inextricably interwoven in
this case".196
7.95. The Panel concludes that these factual circumstances more than suffice to establish that the
Philippines has standing to challenge the 2002 -2003 Charges and the 1,052 revised NoAs,
notwithstanding that they concern imports into Thailand from Indonesia, and not the Philippines.
7.1.4 Relevance of the presumption of good faith on the part of Thailand and its
authorities
7.1.4.1 Introduction
7.96. In the original proceeding, the panel stated that it presumed good faith on the part of Thailand
and its authorities. It referred to prior pronouncements that panels should "assume that WTO
Members will perform their treaty obligations in good faith, as th ey are required to do by the WTO

191 Appellate Body Report, EC – Bananas III, para. 136.
192 Appellate Body Report, EC – Bananas III, para. 136.
193 Appellate Body Report, EC – Bananas III, para. 136 (referring to Panel Reports, EC – Bananas III,
para. 7.50).
194 Panel Report, Colombia – Ports of Entry, para. 7.329. See also Panel Reports, EC – Bananas III
195 As the Philippines puts it, "[a]lthough the entries at issue in these proceedings are historical, the
measures target an importer that now sources from the Philippines. The latest measures threaten the viability
of the importer's operations in Thailand, and leave the Philippines with no choice but to initiate these second
compliance proceedings." (Philippines' first written submission, para. 10.)
196 Appellate Body Report, EC – Bananas III, para. 137.

Agreement and by international law "197, and that it "is implicit from the duty to perform treaty
obligations in good faith that a party to an international agreement should be deemed to have acted
in good faith in the performance of its treaty obligations".198
7.97. The panel's analysis of several issues was informed by consideration of good faith. It referred
to "good faith" efforts in the context of the interactions between the importer and the customs
administration199, and to the presumption of good faith in the context of assessing the likelihood of
a respondent reintroducing a withdrawn measure. 200 It also referred to the presumption of good
faith on the part of Thai authorities in the context of assessing the likelihood of their administering
regulations in a biased manner, and concluded that "[i]n the absence of solid evidence to prove the
contrary, there is no reason to assume that TTM directors, who are Thai government officials, would
act in contradiction to their WTO obligations."201
7.98. The concept of good faith also figured prominently in the Panel Report in the first recourse to
Article 21.5. Most notably, the Panel addressed at some length Thailand 's argument that the
Philippines failed to engage in WTO dispute settlement procedures in "good faith" as required by
Article 3.10 of the DSU when it submitted a legal opinion prepared by Thailand's defence counsel.202
As with the original panel, it also referred to good faith efforts in the context of the interactions
between the importer and the customs administration.203
7.99. In its submissions in this second recourse to Article 21.5, Thailand has argued that it is entitled
to a presumption that it will perform its WTO obligations in good faith, and it has stressed that CVA
obligations must be interpreted in good faith. There are two issues related to the presumption of
good faith on the part of Thailand and its authorities that the Panel considers would be best
addressed at the outset because of their fundamental nature. These are addressed below.
7.1.4.2 Relevance of the presumption of good faith to accepting the veracity of Thailand's
representations
7.100. The Philippines ' claims under the CVA are premised on the understanding that the Thai
authorities relied on pricing and cost information reported by PM Indonesia in the CK -21A forms to
determine the "actual price" in the 2002-2003 Charges and the "actual value" in the 1,052 revised
NoAs. Thailand has repeatedly represented to the Panel that its authorities did indeed rely on the
pricing and cost information reported by PM Indonesia in the CK-21A forms to determine the "actual
price" in the 2002-2003 Charges and the 1,052 revised NoAs . In the course of the proceeding the
Philippines raised doubts about whether Thailand had actually received all the information contained
in CK-21A forms from Indonesia. However, the Philippines accepts that Thailand "had certain pricing
and cost information reported by PM Indonesia to the Indonesian government in CK -21A forms",
and that "[a]lthough the precise nature of this information is unclear, the evidence shows that this
information enabled Thailand to construct aggregate production costs, based on the producer's HJE
retail selling price, the Indonesian taxes due on that price, and a standard amount for the costs and
profits of others in the supply chain".204
7.101. The Philippines' doubts about the nature of the CK-21A information received arose from its
discovery of an official statement from Indonesia's Ministry of Law and Human Rights relating to

197 Panel Report, Thailand – Cigarettes (Philippines), footnote 448 (referring to Panel Report, Argentina
– Textiles and Apparel, para. 6.14.)
198 Panel Report, Thailand – Cigarettes (Philippines), footnote 1543 (referring to Panel Report, US –
Continued Suspension, para. 7.317.)
199 Panel Report, Thailand – Cigarettes (Philippines), paras. 7.172 and 7.176.
200 Panel Report, Thailand – Cigarettes (Philippines), footnote 448 (referring to Panel Report, Argentina
– Textiles and Apparel, para. 6.14.)
201 Panel Report, Thailand – Cigarettes (Philippines), footnote 1543.
202 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), Section 7.1.3 (The
ACWL/Commerce letters and lawyer-client privilege), including in particular paras. 7.29, 7.32, 7.34, 7.41,
7.49, and 7.56.
203 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.106, 7.250,
7.308, 7.309, 7.332, and footnote 439.
204 However, the Philippines "does not accept, without evidence, that Thailand had access to all of the
information reported by the Indonesian producer in any CK-21A form from the relevant period". (Philippines'
request to review the Interim Report, paras. 72 and 75.)

Thailand's request for CK-21A information.205 The Ministry's statement describes, in some detail, the
information that the Government of Indonesia was, and was no t, able to share with Thailand. It
specifically states that Indonesia could not provide Thailand with PM Indonesia's CK-21A information
for Marlboro, for 1999-2003, because the documents had been destroyed pursuant to Indonesia's
10-year record-keeping requirements.206 In the Philippines ' view, the Ministry 's statement raises
questions about the information that Thailand purportedly obtained fro m the Government of
Indonesia. These doubts motivated the Philippines ' request that the Panel exercise its discretio n,
pursuant to Article 13 of the DSU, to ask Thailand to provide copies of the CK-21A information, and
related communications, that the Indonesian officials allegedly provided to their Thai counterparts.
7.102. After hearing from the parties on this issue at the substantive meeting, the Panel informed
the parties of its decision to decline the Philippines ' request that the Panel exercise its authority
pursuant to Article 13 of the DSU to seek the further information identified by the Philippi nes
regarding the CK-21A forms, and that the Panel therefore considered it unnecessary to mediate the
parties' disagreement on the scope of any ancillary confidentiality procedures. 207 In that
communication, the Panel indicated in general terms why it did not consider that acces s to the
information referred to by the Philippines is necessary for the Panel to make an objective assessment
of the matter before it, but noted that it would elaborate on the reasons in the Report.
7.103. The Panel elaborates its reasons as follows. First, as already indicated in its earlier
communication, the Philippines' own claims under the CVA are premised on the understanding that
the Thai authorities relied on pricing and cost information reported by PM Indonesia in the CK -21A
forms to determine the "actual price" in the 2002-2003 Charges and the "actual value" in the 1,052
revised NoAs, and Thailand has repeatedly represented to the Panel that this understanding is
correct. Consistent with this understanding, the Philippines confirmed that the copies of the CK-21A
information and related communications would only serve to substantiate assertions that Thailand
has made, but that the information is not necessary for the Philippines to make its own prima facie
case.
7.104. The Panel did not consider it necessary to exercise its authority to verify factual issues that
are not in dispute between the parties. While a panel 's conclusions on questions of law, legal
interpretation and the proper legal characterization of measures are not controlled by the concurring
positions or shared assumptions of the parties 208, with regard to questions of fact "[i]t is usual
practice for domestic and international legal tribunals, including GATT panels, to consider that, if a
party admits a particular fact, the judge may be entitled to consider such fact as accurate. "209 In
this connection, the Panel notes that the present case is distinguishable from Canada – Aircraft. In
that case, Canada chose to defend its challenged measures only on the question of export
contingency, and presented no defence on the issue of subsidization, and argued that the panel was
wrong to request the production of evidence in respect of the issue of subsidization as it related to
a defence that Canada had not made. The panel explained that it was appropriate to seek information
on subsidization because Canada had expressly stated that it did not admit that the relevant
measures constituted subsidies. 210 In the present case, in contrast, Thailand has confirmed,
repeatedly, that the Philippines is correct in its as sertion that the Thai authorities relied on the
information contained in the CK-21A forms to determine the "actual " price/value of PMTL's imports.
7.105. Having said that, the Panel' decision not to request documentation verifying the veracity of
Thailand's assertions was not based solely on the fact that Thailand's representations aligned with

205 Official Statement from the Indonesian Ministry of Law and Human Rights dated 13 May 2016
(English translation), (Exhibit PHL-295-B).
206 Official Statement from the Indonesian Ministry of Law and Human Rights dated 13 May 2016
(English translation), (Exhibit PHL-295-B), para. 4.
207 See section 1.4.3.2 above.
208 See e.g. Appellate Body Reports, Brazil – Taxation, para. 5.171; Panel and Appellate Body Reports,
Indonesia – Iron or Steel Products (Viet Nam), paras. 7.10 and 5.33, respectively.
209 Panel Report, US – Shrimp, para. 7.15. This is not to suggest either that the absence of a
disagreement between the parties on a question of fact is always controlling, or that the usual practice of
accepting undisputed facts precludes a panel from seeking evidence of that fact, or from making further
inquiries. The Appellate Body has observed that "a panel is not precluded from objectively determining the
accuracy of a factual assertion even when it is not disputed between the parties". (Appellate Body Report,
Korea – Radionuclides (Japan), para. 5.181.)
210 Panel Report, Canada – Aircraft, paras. 9.79-9.83.

the assumptions underlying the Philippines ' own claims. Rather, in the light of the presumption of
good faith on the part of Thailand, the Panel accepts the veracity of Thailand's representations that
its authorities received pricing and cost information reported by PM Indonesia in the CK-21A forms.
The Panel considers it useful to elaborate briefly on this point given the Philippines' continued doubts
about the Thai authorities' access to the CK-21A information.211
7.106. Article 3.10 of the DSU establishes that "all Members will engage in these procedures in good
faith in an effort to resolve the dispute". The Panel considers that a Member would clearly fall short
of engaging in WTO dispute settlement procedures in "good faith" if, as either a complaining or
responding party, it were to fabricate evidence or misrepresent facts of which it possesses exclusive
knowledge in such a way as to induce a panel to rely on those representations for the purpose of
making findings that rest on an incorrect factual basis. 212 Accordingly, the Panel considers that the
presumption that Members engage in WTO dispute settlement procedures in good faith establishes
a high threshold for questioning the veracity of such factual representations. This understanding is
consistent with the approach taken by panels in previous cases, including in the context of a range
of issues relating to anti -dumping and subsidy measures involving information solely in the
possession of the responding Member.213
7.107. The Panel has carefully considered the contents of the official statement from Indonesia 's
Ministry of Law and Human Rights relating to Thailand's request for CK-21A information, submitted
by the Philippines as Exhibit PHL -295-B. In this case, Thailand has repeatedly represented that its
authorities had access to and relied on the pricing and cost information reported by PM Indonesia in
the CK-21A forms. Thailand also offered to provide copies of the documents that it had received
from Indonesia, subject to mutually agreed confidentiality procedures. After the Panel invited
Thailand to respond to the issue raised by the Philippines, it explained that Indonesia retained the
data collected from the forms CK-21A in its databases. Specifically, Thailand explained that:
a. Thailand is a party to the ASEAN Treaty on Mutual Legal Assistance in Criminal Matters
2004214, which is enacted into Thai law in the Act on Mutual Assistance in Criminal
Matters B.E. 2535 (1992), as amended in B.E. 2559 (2016) 215, and the Regulation of
the Central Authority on Providing and Seeking Assistance in Criminal Matters B.E. 2537
(1994).216
b. Since 2008, Thailand has sought and received the information pertinent to this case
under the ASEAN Treaty through several mutual assistance requests to the government
of Indonesia for certain documents, including CK -21A and CK -8 forms, the price
structure forms, and related laws and regulations with respect to PMTL 's imports of
cigarettes. Thailand states that it also collected information from "other sources" at that
time.

211 As noted earlier, in its comments on the draft descriptive part of the Report, the Philippines
considered it appropriate to reflect these doubts by suggesting that the paragraphs containing the Panel's
description of Thailand's reliance on information obtained from Indonesian authorities be qualified with phrases
and terms such as "is said to have", "said to be", "asserted" and "allegedly". The Philippines recalled that
"although Thailand asserted that this CK-21A information served as the basis for its 'actual price' and 'actual
value', it declined to provide any evidence to support that assertion, despite the Philippines invitation for
Thailand to do so", and that "[f]ollowing the discovery of the statement by the Government of Indonesia
contained in Exhibit PHL-295, doubts emerged as to whether Thailand had, in fact, received the alleged CK-21A
information from Indonesia." (Philippines' comments on the descriptive part of the Panel Report, paras. 6-7.)
212 See e.g. Panel Report, US – 1916 Act (Japan), footnote 422; Panel Report, EC – Asbestos, footnote 3
to paragraph 7.2.
213 See e.g. Panel Report, EC – Bed Linen, para. 6.216; Panel Report, EC — Tube or Pipe Fittings,
para. 7.47; Appellate Body Report, EC — Tube or Pipe Fittings, paras. 122-128; Appellate Body Report, Russia
— Commercial Vehicles, paras. 5.120-5.137; Panel Report, EC – Fasteners (China), para. 7.214 and footnote
473; Appellate Body Report, EC – Fasteners (China), paras. 439-454; Decision by the Arbitrator, Brazil –
Aircraft (Article 22.6 – Brazil), para. 2.10 and footnote 15; Panel Report, US – Large Civil Aircraft (2nd
214 ASEAN Treaty on Mutual Legal Assistance in Criminal Matters 2004, (Exhibit THA-80).
215 Act on Mutual Assistance in Criminal Matters B.E. 2535 (1992) (English translation), (Exhibit THA-
81-B).
216 Regulation of the Central Authority on Providing and Seeking Assistance in Criminal Matters
B.E. 2537 (1994), (English translation), (Exhibit THA-82-B).

c. Thailand received responses to these requests in 2010 and 2016 , in which Indonesia
provided the requested information. In the later responses, Indonesia indicated that
CK-21A and CK-8 forms were normally destroyed after 10 years; however, Indonesia
retained the data collected from the forms CK -21A in its databases and was able to
share that information in those responses.
d. To sum up, Thailand obtained the information on which it relied to reconstruct the CIF
prices contained in Exhibit THA -74 (BCI) from the original source documents and the
Indonesian government's own data base of records containing information from those
forms.217
7.108. In these circumstances, and in the light of the presumption of good faith on the part of
Thailand, the Panel accepts the veracity of Thailand 's representations regarding its access to
information reported by PM Indonesia in the CK-21A forms. Accordingly, the remainder of the Panel's
analysis proceeds on the understanding that the Thai authorities received pricing and cost
information reported by PM Indonesia in the CK-21A forms, and determined the "actual price" in the
2002-2003 Charges and the "actual value" in the 1,052 revised NoAs on that basis.
7.1.4.3 Relevance of the presumption of good faith to the interpretation of CVA
obligations
7.109. Thailand argues that the presumption of good faith on the part of the Thai authorities (and
customs authorities in general) sho uld inform the interpretation and application of CVA obligations
in cases where the authorities rely, without any further scrutiny, on a company's pricing and cost
information obtained from foreign governments. The Philippines states that it accepts that a Member
enjoys a rebuttable presumption that it complies in good fa ith with its treaty obligations 218, but
disagrees with the conclusions that Thailand argues should be drawn from this presumption. In this
section, the Panel addresses some of the parties' arguments on the interpretative consequences that
flow from the presumption of good faith on the part of customs authorities.
7.110. First, Thailand states that an interpretation of CVA obligations that presumes good faith on
the part of customs authorities in the importing country means that an interpreter "should assume
that the authority of the importing country will do everything possible to rely on accurate
information" for customs valuation purposes .219 The Philippines responds that Thailand is wrong
insofar as it is arguing that the Panel must assume, as an interpretive matter, that an authority has
in fact done "everything possible" to meet its CVA obligations.220
7.111. The Panel does not understand Thailand 's argument to be that the Panel should simply
assume, in the face of opposing evidence, that its authorities in fact did everything possible to ensure
that their determination of the transaction value, examination of the circumstances of sale, and/or
determination of a revised customs value complied with CVA obligations. Insofar as that is what
Thailand is arguing, then the Panel would disagree for all of the reasons presented by the Philippines
in rebutting that argument. Rather, the Panel reads Thailand's argument in conjunction with its wider
argument that a customs authority enjoys a considerable margin of discretion when determining an
"all cost plus a profit" benchmark under Paragraph 3 of the Interpretative Note, and need not follow
to the letter other CVA disciplines governing the calculation of costs and profit or "the long list of
obligations suggested by the Philippines ".221 When read in conjunction with that wider argument
relating to discretion, the Panel understands Thailand to essentially be makin g the point that the
relevant CVA obligations at issue should be interpreted in a way that preserves and does not hinder
this discretion, and that one of the reasons why the existence of such discretion is appropriate is
that a customs authority cannot be presumed to abuse this discretion – rather, it should be assumed
that the authority of the importing country "will do everything possible to rely on accurate
information" for customs valuation purposes.

217 Thailand's opening statement, paras. 3.45-3.49.
219 Thailand's first written submission, paras. 3.78 and 3.96.
220 Philippines' second written submission, paras. 110-118.
221 Thailand's first written submission, para. 3.85.

7.112. Insofar as this reflects a correct understanding of Thailand's point, the Panel finds it
unobjectionable. Further above222, the Panel already recalled its general understanding that w here
the terms of the CVA are generally -worded and do not prescribe any particular means or
methodology that must be followed in discharging a substantive and procedural obligation contained
therein, it would proceed on the understanding that the domestic customs authorities involved in
customs valuation "enjoy a margin of discretion regarding the means or methodology that they
choose to follow, within the parameters laid down in the applicable treaty provisions, read in their
context and in the light of the object and purpose of the CVA ".223 The Panel observed that this
understanding "derives from the manner in which the Appellate B ody and previous panels have
approached generally-worded obligations that do not prescribe a particular means or methodology
for conducting the analysis, or making the determinations provided for in the WTO agreement in
question".224 The Panel considers that this interpretative approach may also be grounded in a
presumption of good faith on the part of the domestic authorities whose conduct is regulated by
those obligations.
7.113. Second, Thailand argues that a good faith interpretation of the CVA should not impose
"excessive restrictions" on an authority 's "ability to gather information on a producer 's costs and
profits".225 The Philippines considers that Thailand's argument is confused, because nothing in the
Philippines' interpretation would "impose excessive restrictions on the authority 's ability to gather
information on the producer's cost and profits" given that the Philippines' position is the CVA "obliges
an authority to gather actively information on the producer's costs and profits".226
7.114. The Panel agrees with the general proposition that CVA obligations should not be interpreted
in a manner that imposes "excessive restrictions" on an authority 's ability to gather information
necessary to determine the customs value of an importer 's goods, wheth er in the context of
gathering information relating to a producer 's costs and profits or otherwise. Leaving aside the
question of what types of restrictions are properly characterized as "excessive", and whether it is
necessary to invoke a presumption of g ood faith to sustain the proposition that CVA obligations
should not be interpreted in a way that imposes excessive restrictions on customs authority, the
general proposition is unobjectionable.
7.115. Indeed, this proposition is already clearly reflected in the Panel's analysis of several issues
in the first recourse to Article 21.5 in relation to the Philippines' claims under both the CVA and the
GATT 1994. For example, the Panel considered that it "would indeed be an excessive burden to
impose on a customs authority a requirement to independently identify and examine any and all
'valid commercial reasons ' that might explain why a particular company is loss -making", and
explained how an au thority could proceed to resolve this kind of issue throug h a process of
consultation with the importer.227 In this regard, the Panel considered that it would be fully consistent
with the requirements of the examination required by Article 1.2(a) that a customs authority "may
consider that a company should be excluded from the comparator group on the basis that it is loss-
making, and communicate this position to the importer, thereby allowing the importer to explain
why, in its view, certain companies should nonetheless be included in the comparator group despite
their loss-making status".228
7.116. Similar considerations informed the Panel's interpretation of the provisions of the GATT 1994
which were at issue. For example, in the context of interpreting the pu blication obligation in
Article X:1, the Panel considered that:
[I]mportant limitations are inherent in the concept of an "administrative ruling ". Of
particular relevance in this case, we consider that for a pronouncement or unwritten
practice to meet the threshold of qualifying as an "administrative ruling" subject to the
publication requirement in Article X:1, it must differ from, or add to, or significantly
elaborate on published laws, regulations, and rulings. Were it otherwise, Members would

222 See paragraph 7.8 above.
223 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.82.
224 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.82.
225 Thailand's first written submission, para. 3.79.
226 Philippines' second written submission, paras. 119-121.
227 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.171.
228 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.171.

have to publish, inter alia, every permissible form and modality for complying with laws
and regulations falling within the scope of Article X:1. In our view, an unduly broad
interpretation of the kinds of measures covered by Article X:1 would entail unduly
burdensome and unrealistic consequences for Members … .229
7.117. Thus, the Panel considers that CVA obligations should not be interpreted in a manner that
imposes "excessive restrictions " on an authority 's ability to gather information necessary to
determine the customs value of an importer's goods, whether in the context of information relating
to a producer 's costs and profits or otherwise. The Panel considers this to be an unremarkable
proposition, and one that is already reflected in the Panel 's own analysis of various issues in first
recourse to Article 21.5.
7.118. Finally, the Panel considers Thailand's argument that under a "good faith" interpretation of
the CVA, an authority should have "the right to assume that the information provided by the
exporting country's authority is accurate and truthful"230, and it should not be faulted in a situation
where a producer would "intentionally submit fabricated information to authorities in the country of
exportation and, on that basis, later claim that the authority in the country of importation acted
arbitrarily by relying on that same information".231 According to the Philippines, Thailand is wrong in
arguing that a "good faith " interpretation allows a customs administration to "assume" that
information provided by authorities of the exporting country is reliable for customs valuation
purposes.232
7.119. The Panel's findings in the fi rst recourse to Article 21.5 confirm that the authority in the
importing country often has no choice but to rely on the information provided to it and that the
importer thus bears a responsibility to provide it with the information necessary to conduct its
analysis, and that a customs authority cannot be faulted for relying on the information that the
importer does, or does not, provide to it. For example, in the course of its analysis of the Philippines'
claim under Article 1.2(a), second sentence, the Panel stated that because the parties did not dispute
that a comparison of P&GE rates is, in principle, a valid indicator of whether the relationship
influenced the price, it considered that any obligation on a customs aut hority to take into account
additional information "will depend on the information provided by the importer to the customs
authority in the context of the consultations ", and that the authority would be under an obligation
to address such evidence or infor mation only "where an importer provides certain evidence or
information that is relevant to the examination of the circumstances of sale, be it quantitative or
qualitative".233 The Panel proceeded to provide the following illustration:
For instance, it may be the case that, in examining the circumstances of sale, a customs
authority considers that the relationship influenced the price on the basis of a purely
quantitative assessment which is in itself a valid indicator, or is suggestive, of whether
the relationship influenced the price. Once the customs authority has communicated its
grounds to the importer, as required under Article 1.2(a), third sentence, the importer
may respond by providing qualitative evidence that is relevant to the examination of
the circumstances of sale (either directly related to the customs authority's quantitative
methodology, or unrelated to that methodology but still relevant to a determination of
whether the relationship between the buyer and seller influenced the price). In such a
situation, if the customs authority failed to take into account such information the
customs authority would essentially be failing to conduct an examination of the
circumstances of sale that is apt to reveal whether the relationship influenced the price.
However, in a situation where the importer does not provide any relevant qualitative
information, it would be fully consistent with the requirements of Article 1.2(a) for the
customs authority to reject the declared transaction value on the basis o f its initial
grounds.234

229 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.886.
230 Thailand's first written submission, para. 3.79.
231 Thailand's first written submission, paras. 3.79-3.80.
232 Philippines' second written submission, paras. 122-133.
233 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.234.
234 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), footnote 592. (emphasis
original)

7.120. In the context of its analysis of the Philippines ' claims under Article 5, the Panel similarly
confirmed that "if an importer fails to provide relevant information to substantiate a requested
deduction under Article 5.1, the customs authority cannot be found to have acted inconsistently with
Article 5.1 for not making the deduction."235 In this respect, the Panel considered that an "importer
may, practically speaking, 'waive' its rights in a particular set of circumstances".236 In a passage that
is highly pertinent to Thailand's point, the Panel stated that:
[W]e consider that the customs authority must make its deduction on the basis of the
information provided by the importer. Furthermore, in a situation where the customs
authority has doubts about the information provided by the importer, then, in
accordance with the consultative nature of the process, the customs authority should
communicate its doubts to the importer and invite the importer to submit additional
information. We note th at it may so happen that an importer declines to submit the
necessary evidence, despite a good faith effort by the customs authority to consult with
the importer. It is entirely plausible that an importer may elect not to supply such
information. Furthermore, in such a situation the importer may explicitly inform the
customs valuation authority that it does not intend to supply such information. We do
not consider that a customs authority can be found to have acted inconsistently with its
obligations under Article 5 in such a situation.
… the importer itself must approach the customs valuation process in good faith. If an
importer intends to request (and substantiate) a particular deduction, it must do so
within a reasonable period of time, sufficient to enable the customs authority to operate
efficiently and effectively. A customs authority could not be found to have acted
inconsistently with Article 5 for failing to make a deduction in a situation where an
importer utilizes the flexibilities of the consulta tive customs valuation process to delay
or frustrate the customs authority's own rights under the CVA.237
7.121. Thus, the Panel agrees in principle that an authority should have "the right to assume that
the information provided by the exporting country 's authority is accurate and truthful "238, and it
should not be faulted in a situation where a producer would " intentionally submit fabricated
information to authorities in the country of exportation and, on that basis, later claim that the
authority in the country of importation acted arbitrarily by relying on that same information".239 This
understanding may be related to considerations of good faith: like the original panel, the Panel in
the first recourse to Article 21.5 considered that the process of examining the circumstances of sale
under Article 1.2(a) resembles that of consultation "as both the importer and the customs
administration respectively need to make a good faith effort on the one hand to provide relevant
information and on the other hand to provide a reasonable opportunity to the importer to submit
information and review the information provided in reaching a final determination".240
7.122. However, nothing in the Panel's prior findings implies that an authority could disregard
relevant information and explanations provided by the importer as to the accuracy of information
before a customs authority. For example , the Panel made clear that when a customs authority
considers that the relationship influenced the price on the basis of an assessment "which is in itself
a valid indicator, or is suggestive" of whether the relationship influenced the price , if the importer
responds by providing other evidence that is relevant, in "such a situation, if the customs authority
fail[s] to take into account such inf ormation the customs authority would essentially be failing to
conduct an examination of the circumstances of sale that is apt to reveal whether the relationship
influenced the price".241
7.123. The Panel also finds unobjectionable the principle that there are limitations on the extent to
which a party may invoke a claim or defence based on factual circumstances that it was responsible
for creating. Thailand invokes the Factory at Chorzów case and other international authorities that

235 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.307.
236 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.307.
237 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.308-7.309.
238 Thailand's first written submission, para. 3.79.
239 Thailand's first written submission, paras. 3.79-3.80.
240 Panel Report, Thailand – Cigarettes (Philippines), paras. 7.171-7.172. Panel Report, Thailand –
241 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), footnote 592.

reflect this equitable maxim 242, b ut the same notion is already to some extent implicit in, and
assumed by, the Panel's analysis in the first recourse to Article 21.5. For example, in the context of
its assessment of the Philippines' claim under Article 10 of the CVA regarding the disclosure of PMTL's
confidential information to the media , the Panel concluded that the information concerning PMTL's
transaction values retained the status of "confidential information", notwithstanding their prior
disclosure to the press by Thai government officials. The Panel reasoned:
In our view, the prior unauthorized disclosure of PMTL's confidential business
information by Thai officials does not change the status of that information to non -
confidential, precisely because that prior disclosure was made wit hout PMTL's
permission. To find otherwise would entail giving an unduly broad meaning to what is
meant by information "in the public domain", and could lead to the consequence that a
Member's prior WTO-inconsistent disclosure of business confidential infor mation gives
it licence to do so again.243
7.1.4.4 Conclusion
7.124. In sum, in the light of the presumption of good faith on the part of Thailand, the Panel
accepts the veracity of Thailand's representations regarding its access to the information reported
by PM Indonesia in the CK-21A forms. Regarding Thailand's arguments concerning the relevance of
good faith to the interpretation of the CVA, the Panel considers that each of the specific points
considered above, which i n one way or another ostensibly relate to the conseq uences of a
presumption of good faith to the interpretation and application of CVA obligations, relate to more
general issues that have already been adequately clarified through the Panel's prior interpretations
of the CVA. The Panel appreciates that varying nomenclature can be used to reiterate the same
concepts and principles 244, but r ather than approaching the disputed points as matters of first
impression pertaining to interpretative consequences flowing from the presumption of good faith,
the Panel grounds its analysis in its existing interpretations of the CVA. The Panel sees a potential
for confusion if, in this second recourse to Article 21.5, it were to present its analysis and conclusions
using different terminology and legal concepts to describ e the same general legal requirements
already articulated in the Report in the first recourse to Article 21.5, or to imply that a different set
of requirements apply in cases where the authorities rely on pricing and cost information obtained
from foreign governments.
7.2 The Thai authorities' reliance on the information in the CK-21A forms
7.2.1 Introduction
7.125. Both the 2002-2003 Charges and the 1,052 revised NoAs rest on the same basis, namely
the calculation, by the DSI, of the actual price/value of PMTL's imports of cigarettes over the 2001-
2003 period. The DSI calculated th is price/value based on certain pricing and cost information
reported by the producer and seller of the cigarettes at issue, PM Indonesia, to Indonesian tax
authorities in the CK-21A form.
7.126. The Philippines advances distinct substantive claims under Articles 1.1, 1.2(a) second
sentence, 6 and 7 of the CVA, and requests distinct findings in respect of each of its substantive
claims. In addition, the Philippines has set out its legal claims regarding the 2002-2003 Charges and
1,052 revised NoAs in separate sections of its submissions, notwithstanding that its legal claims and
supporting arguments are largely identical.
7.127. However, the Philippines considers that the Thai authorities ' reliance on the CK-21A forms
violate fundamental CVA principles over an "overarching nature" regarding the required "nature and
quality of cost and profit information used for customs valuation purposes [that] apply equally to

242 See above, paragraph 7.44.
243 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.770.
244 See e.g. Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), footnote 1033
(observing that "the preclusion doctrine is not unique to WTO dispute settlement proceedings, and iterations of
the same doctrine, albeit with varying nomenclature, can be found in various jurisdictions. For instance, the
doctrine of res judicata, which prevents parties from re-litigating certain matters previously raised before a
court or a tribunal, is conceptually similar to the preclusion doctrine.")

determinations made under Articles 1.1, 1.2( a), 6 and 7 "245, and its distinct claims under these
provisions are all founded on essentially the same objections to the Thai authorities' reliance on the
information in the CK-21A forms. In the Philippines' view, these fundamental problems should lead
the Panel to find that the customs valuation determinations reflected in the 2002-2003 Charges and
1,052 revised NoAs are inconsistent with these CVA obligations, regardless of whether the Thai
authorities made a customs valuation determination governed by Art icle 1.1, Article 1.2(a) second
sentence, Article 6, and/or Article 7.
7.128. According to the Philippines, the fundamental deficiencies that underlie its various legal
claims include "that the relevant cost information was not reliable; that the Thai authoritie s knew
that the information was questionable, both because it was questionable on its face and because the
importer made submissions to that effect; and, the authorities nonetheless did nothing whatsoever
to review the reliability of the information ".246 Thailand acknowledges that the information that its
authorities relied upon "was not subsequently verified in terms of its accuracy" 247, but maintains
that PM Indonesia must be blamed for any inaccuracies in the CK-21A information, and that in the
particular circumstances of this case, its authorities were entitled to assume that it was accurate
and truthful.
7.129. The Panel will address the fundamental factual premises of the Philippines ' legal claims
below, before turning to those specific legal claims. The Panel will refer back to these findings later
in the context of its analysis of the Philippines' specific legal claims.
7.2.2 The nature of the cost information reported in the CK-21A forms
7.130. The Panel will first consider the alleged inaccuracy of the information reported in the CK-21A
forms, and in particular whether the Philippines has established that , as a result of the regulatory
constraints mandated by Indonesian excise tax law at the time that PM Indonesia completed the CK-
21A forms, the costs and profits reported by PM Indonesia in these forms were overstated and "did
not – and could not – represent the actual costs and profits of the producer and the other parties in
the supply chain ".248 Thailand counters that the Philippines' assertion regarding these Indonesian
regulatory constraints "should not be considered or accepted" by the Panel for several reasons, one
of which is that the Panel "cannot make findings that would call into question the WTO-consistency
of Indonesia's laws or how they are administered".249
7.131. The Panel notes that the Philippines has the burden of substantiating its assertion that as a
result of the regulatory constraints mandated by Indonesian excise tax law, the CK-21A forms could
not represent PM Indonesia's actual costs and profits, and necessarily erred on the side of overstating
the actual costs and profits of PM Indonesia and other parties involved in the supply chain. Thus,
the Panel will begin by reviewing the Philippines' exposition of the operation of the Indonesian excise
tax system for tobacco products and the form CK -21A, and will then consider Thailand's rebuttal
arguments.
7.132. The Philippines explains that under the Indonesian excise tax law that was in force in 2001-
2003, the excise tax on tobacco products was payable by the producer, when products left the
factory gate, even though the tax was ostensibly due on the retail sale. 250 The G overnment of
Indonesia thereby centralized the collection of excise tax in the hands of the producer (as opposed
to the many retailers) and also collected the tax in advance of the retail sale.251 This excise tax base
for tobacco products sold in Indonesia was known as the "Harga Jual Exeran " or "HJE", which
translated means "retail selling price" (RSP).252

245 Philippines' response to Panel question No. 141, para. 115.
247 Thailand's first written submission, para. 3.110.
249 Thailand's first written submission, para. 3.99.
250 Philippines' first written submission, para. 107, referring to Indonesian Law on Excise, Law No.
11/1995 (English translation), (Exhibit PHL-263-B), Article 7.
252 Philippines' first written submission, footnote 74, referring to Decree of the Minister of Finance of the
Republic of Indonesia No. 89/KMK.05/2000, 29 March 2000 (English translation), (Exhibit PHL-259-B), Article

7.133. As elaborated below, the HJE functioned as a maximum retail selling price.253 It was set with
a view to achieving tax revenue targets set annually by the Government of Indonesia. 254 The
maximum retail price was governed by regulations that aimed to ensure that it was high enough to
meet those tax revenue targets.255
7.134. The HJE was fixed by the Directorate General of Customs and Excise (DGCE), the Indonesian
excise tax authority, according to the size of the producer and the type and brand of tobacco
product.256 The producer was responsible for obtaining an HJE for a given product and, when it
launched a new product, was required to obtain an HJE even before it began t o manufacture the
new product.257 After a product was launched, if the average actual retail sales price exceeded the
HJE for a product, or if the DGCE increased the minimum HJE above the level of the HJE currently
assigned for a product, the producer had to seek an increased HJE.258
7.135. In order to obtain an HJE from the DGCE, a producer submitted a proposed HJE for the
approval of the DGCE.259 The producer was required to do so before it began manufacturing a new
product for sale in Indonesia.260 When the DGCE approved a requested HJE, this figure became the
excise tax base for that product. 261 This application for an HJE for a particular product was
accompanied by administrative form CK -21A, entitled "Calculation of the Retail Selling Price of
Domestic Tobacco Products".262
7.136. In completing form CK-21A form, a producer had to fill in a series of pre-established rows in
the form in which the producer ostensibly reported to DGCE purported "costs" and "profits" of all
parties in the supply chain, leading from the producer to the retailer. Specifically, form CK-21A
contained a series of line-items relating to:
a. the producer 's costs of production, which included pre -established rows for (1) mix
tobacco; (2) cut cloves; (3) sauce; (4) filter; (5) wrapper; (6) glass paper; (7) pack
paper, including printing cost; (8) aluminum foil paper; (9) outside label; (10) pressed
paper and box; (11) glue material; (12) costs of rolling, grinding and cutting; (13) costs
of packaging, pressing and boxing; (14) sale/transportation costs; (15) company costs;
(16) other costs;
b. the domestic excise tax and VAT due on the product (based on the requested HJE);
c. the producer's profits; and,

2; Witness statement of Dr. Joko Wiyono, 20 April 2012 (English translation), (Exhibit PHL-255-B), p. 2; and
Witness statement of Eka Siswani, 3 May 2012 (English translation), (Exhibit PHL-256-B), p. 2.
253 Philippines' response to Panel question No. 146, para. 162, and Decree of the Minister of Finance of
the Republic of Indonesia No. 89/KMK.05/2000, 29 March 2000 (English translation), (Exhibit PHL-259-B),
Article 8(1). In its third-party submission, Indonesia states along the same lines that "The translation of "HJE"
into English would be "retail selling price". However, although the GOI fixed the minimum tax base (HJE), it did
not fix the actual selling price. Sellers could sell tobacco products at any price. When we refer to the HJE in this
submission, we refer to the tax base." (Indonesia's third-party written submission, footnote 7.)
254 Indonesia's third-party written submission, paras. 4-5, referring to Law No. 15 of 2017, Article 1(4).
255 Indonesia's third-party written submission, para. 10, referring to Decree of the Minister of Finance of
the Republic of Indonesia No. 89/KMK.05/2000, 29 March 2000 (English translation), (Exhibit PHL-259-B).
256 Philippines' first written submission, para. 105, referring to Decree of the Minister of Finance of the
Republic of Indonesia No. 89/KMK.05/2000, 29 March 2000 (English translation), (Exhibit PHL-259-B).
257 Philippines' first written submission, para. 107, referring to Indonesian Law on Excise, Law No.
11/1995 (English translation), (Exhibit PHL-263-B), Article 7.
258 Philippines' first written submission, para. 107, referring to Decree of the Minister of Finance of the
Republic of Indonesia No. 89/KMK.05/2000, 29 March 2000 (English translation), (Exhibit PHL-259-B),
Article 8(1).
259 Philippines' first written submission, para. 108, referring to Decision of the Director General of
Customs and Excise No. KEP-17/BC/2000 (English translation), (Exhibit PHL-260-B), Article 2.
260 Philippines' first written submission, para. 108, referring to Indonesian Law on Excise, Law No.
11/1995 (English translation), (Exhibit PHL-263-B), Article 7 and Witness statement of Dr. Joko Wiyono,
20 April 2012 (English translation), (Exhibit PHL-255-B), p. 4.
261 Philippines' first written submission, para. 108, Decree of the Minister of Finance of the Republic of
Indonesia No. 89/KMK.05/2000, 29 March 2000 (English translation), (Exhibit PHL-259-B), Article 2.
262 See Example Form CK-21A, (Exhibit PHL-264).

d. a single item to cover the costs and profits of other parties in the supply chain (i.e.,
distributor/agent/retailer).263
7.137. With respect to this last item, the applicable regulation provided that figures reported for
parties other than the producer could not be less than 10 percent of the total. 264 Moreover, when
reporting figures in form CK -21A, a producer was required to ensure that the reported figures for
the apparent "costs" (including taxes) and "profits" of all parties in the supply chain added up, in
total, to the requested HJE.265
7.138. While the reported profit and cost figures had to add up to the requested HJE, that same
HJE had to be set at a level that exceeded certain thresholds prescribed by regulation, including but
not limited to the actual sales price. More specifically, the Philippines identified the following
regulatory requirements imposed by Indonesian excise tax law:
a. the requested HJE had to exceed the prescribed minimum HJE fixed by the DGCE for the
particular category of tobacco product;
b. the requested HJE had to exceed the actual retail sales price that would be charged by
retailers for the producer's product in question; and
c. the requested HJE also had to exceed the previously approved HJE of any other products
in the same cigarette category manufactured by the producer.266
7.139. The Philippines asserts that, as a result of the figures reported in the CK-21A form having
to add up to the to tal HJE being requested, coupled with proposed HJE having to exceed these
regulatory thresholds and requirements and be set prior to the start of manufacturing, the costs and
profits reported by PM Indonesia to Indonesia did not – and could not – represent the actual costs
and profits of the producer and the other parties in the supply chain; rather, they would necessarily
be inaccurate, and err towards overstating the actual costs and profits incurred by PM Indonesia.
7.140. In its first written submission, the Philippines explained the above points with reference to
Indonesian laws and regulations, which it has provided as exhibits to the Panel. The relevant laws
and regulations governing the administration of Indonesia's excise tax referenced by the Philippines
include Indonesian Law on Excise, Law No. 11/1995267, the Decree of the Minister of Finance of the
Republic of Indonesia No. 89/KMK.05/2000, dated 29 March 2000 268, the Decision of the Director
General of Customs and Excise No. KEP-17/BC/2000269, and the Decision of the Director General of
Customs and Excise No. KEP 19/BC/1997. 270 The Philippines also provided an example of the CK-
21A form.271
7.141. The operation of these regulatory requirements was further elaborated in the two expert
statements, which PMTL obtained and provided to the DSI in 2012, by Joko Wiyono, a former Director
of the DGCE, and Eka Siswani, a practicing Indonesian-qualified lawyer with expertise in Indonesian

263 Philippines' first written submission, para. 109, referring to the Example Form CK-21A, (Exhibit PHL-
264).
264 Philippines' first written submission, para. 110, referring to Decision of the Director General of
Customs and Excise No. KEP 19/BC/1997 (English translation), (Exhibit PHL-265-B); and Witness statement of
Dr. Joko Wiyono, 20 April 2012 (English translation), (Exhibit PHL-255-B), p. 4.
265 Philippines' first written submission, para. 111, referring to Decision of the Director General of
Customs and Excise No. KEP-17/BC/2000 (English translation), (Exhibit PHL-260-B), Article 2; and Example
Form CK-21A, (Exhibit PHL-264).
266 Philippines' first written submission, para. 112, referring to Decision of the Director General of
Customs and Excise No. KEP-17/BC/2000 (English translation), (Exhibit PHL-260-B), Article 9; and Decree of
the Minister of Finance of the Republic of Indonesia No. 89/KMK.05/2000, 29 March 2000 (English translation),
(Exhibit PHL-259-B), Articles 8(1) and (2).
267 Indonesian Law on Excise, Law No. 11/1995 (English translation), (Exhibit PHL-263-B).
268 Decree of the Minister of Finance of the Republic of Indonesia No. 89/KMK.05/2000, 29 March 2000
(English translation), (Exhibit PHL-259-B).
269 Decision of the Director General of Customs and Excise No. KEP17/BC/2000 (English translation),
(Exhibit PHL-260-B).
270 Decision of the Director General of Customs and Excise No. KEP 19/BC/1997 (English translation),
(Exhibit PHL-265-B).
271 Example Form CK-21A, (Exhibit PHL-264).

excise tax law. In their statements, t hese two experts explained the consequence of these
requirements on the figures contained in the CK -21A form. Both explain that the figures contained
therein were "estimates", or "approximations":
a. The Wiyono statement characterizes these figures as "the manufacturer's estimated
values of the components " which constituted the proposed retail selling price. 272 The
statement explains that there was no requirement that the DGCE consider "the
estimated costs, profit and taxes "273 listed in the CK -21A form, and that it was well
aware that the form did "not consist of actual costs".274 The statement indicates that "it
was common knowledge at the DGCE that manufacturers would 'plug -in' numbers to
show their justification for a proposed HJE above the 'minimum HJE' required by the
DGCE".275 The statement contrasts "actual costs" with "the approximate values" in the
form.276 In the context of explaining why the figures cannot be relied upon to compute
a revised customs value, the statement again states that the data in the form "is based
on estimates ".277 The statement noted that CK -21A forms "clearly lacked sufficient
details to allow verification against a company's GAAP compliant accounts" 278 and the
DGCE had "no procedure or methodology" to verify the reported information.279 Further,
the statement also explains that the information in form CK -21A did not account for
"differences" in costs and profits as between goods sold domestically and for export.280
b. The Siswani statement likewise confirms that as part of its application for an approved
retail selling price, the manufacturer submitted the CK -21A form set ting out the
proposed retail selling price which comprised "its estimated production, marketing and
distribution costs "281; and the Siswani stateme nt confirms that because the CK -21A
form was prepared well in advance of production of the cigarettes at issue, it contained
"estimated" costs and could not contain "actual cost information ".282 The Siswani
statement concludes by observing that the CK -21A form was repealed in 2008, after
which the application for an approved retail selling price no longer requires "estimated
manufacturing costs, local taxes or profits" as an attachment to the application.
7.142. In its third -party submission, Indonesia also confirm s various aspects of the Philippines '
description of its tax system. Among other things, Indonesia confirms that the HJE was set to ensure
that tax revenue targets were met, and that the DGCE was not interested in verifying whether the
reported CK-21A figures reflected a producer's actual costs and profits. It characterized the figures
reported in form CK-21A as a "pre-calculation".283
7.143. The Philippines further explained how the figures reported in the CK -21A forms were not
merely inaccurate, but necessarily overstated the actual costs and profits of PM Indonesia and other
parties in the supply chain. It points out that "if the Indonesian regulations required (1) that 'costs'
and 'profits' reported in form CK -21A add up to the HJE, and (2) that the HJE had to exceed the
actual [Retail Selling Price], then, as a matter of logic , the CK-21A 'costs' and 'profits' necessarily
overstate the actual costs and profits "284; the Philippines added that "[f]urther compounding this
necessary overstatement is the requirement that the requested HJE exceed a prescribed minimum,
determined on the basis of Indonesia 's excise tax revenue targets", and "the requirement that the

272 Witness statement of Dr. Joko Wiyono, 20 April 2012 (English translation), (Exhibit PHL-255-B) p. 3,
para. 5.2. (emphasis original)
273 Witness statement of Dr. Joko Wiyono, p. 3, para. 5.3.
274 Witness statement of Dr. Joko Wiyono, p. 4, para. 5.5(a).
275 Witness statement of Dr. Joko Wiyono, p. 4, para. 5.5(a)(iii).
276 Witness statement of Dr. Joko Wiyono, p. 4, para. 5.5(c).
277 Witness statement of Dr. Joko Wiyono, p. 6, para. 7.2(a).
278 Witness statement of Dr. Joko Wiyono, p. 4.
279 Witness statement of Dr. Joko Wiyono, p. 3.
280 Witness statement of Dr. Joko Wiyono, p. 4.
281 Witness statement of Eka Siswani, 3 May 2012 (English translation), (Exhibit PHL-256-B), p. 2,
para. 4.3.
282 Witness statement of Eka Siswani, p. 2, para. 4.3.
283 Indonesia's third-party submission, para. 9. See also Witness statement of Dr. Joko Wiyono, pp. 1
and 4.
284 Philippines' response to Panel question No. 144, para. 152. (emphasis original)

requested HJE exceed the assigned HJE of any other products in the same cigarette category
manufactured by the producer".285
7.144. The Philippines explained more concretely that, in the period 2000 -2003, to meet revenue
collection targets, the Government of Indonesia raised the HJE by 69.5 percent. It then states the
consequences with reference to Exhibit THA -74, in which Thailand provided a sample of how it
calculated the actual price/value using the information reported in the CK-21A forms:
Because Thailand used the HJE as the starting point to construct PTPMI 's "costs", the
company's costs move in lockstep with the HJE. The supposed "costs" are simply a
residual amount or "plug" that moves in tandem with the HJE. Thus, just like the HJE,
PTPMI's "costs" seemingly also jump by 69.5 per cent in just two years. 286 However,
this apparent jump in PTPMI's costs is simply an arithmetic consequence of Thailand's
decision to construct PTPMI's costs by "pegging" them to the HJE.287
7.145. The Panel considers that in the absence of effective refutation, the above explanation suffices
to establish that as a result of the regulatory constraints mandated by Indonesia n excise tax law,
the CK-21A forms could not represent PM Indonesia's actual costs and profits, and necessarily erred
on the side of overstating the actual costs and profits of PM Indonesia and other parties involved in
the supply chain. Furthermore, nothing in this description suggests to the Panel that PM Indonesia,
by reporting the information that it did in the CK -21A form, engaged in conduct that could be
characterized as involving an "illegal act"288 under Indonesian law, or systematically or intentionally
"deceived"289 the Indonesian authorities.
7.146. Thailand does not specifically contest any particular aspect of the Philippines' description of
Indonesian law, supported by evidence in the form of the relevant Indonesian laws and regulations,
and expert testimony. However, Thailand presents several lines of argument, cast at a higher level
of generality, as to why the Philippines has not substantiated its assertion that the information
reported in the CK -21A forms was necessarily inaccurate. Thailand suggests t hat if PM Indonesia
reported inaccurate information it was because it freely chose to do so.290
7.147. First, Thailand submits that the Philippines ' assertion that the information reported by
manufacturers in form CK-21A was necessarily inaccurate as a result of the operation of Indonesia's
tax system should not be "considered or accepted" by the Panel, because that assertion implies that
Indonesia's tax system was in violation of Article X:3(a) of the GATT 1994, and the Panel "cannot
make findings that would call into question the WTO -consistency of Indonesia 's laws or how they
are administered".291 Thailand suggests that the Panel is not in a position to make findings on the
regulatory requirements identified by the Philippines, "unless and until they have been properly
challenged and found to be inconsistent in WTO dispute settlement proceedings ".292 In response to
a question from the Panel, Thailand reiterates the idea that because "the Philippines has not
challenged Indonesia's method of determining the tax base of cigarettes in the WTO", it follows that
"Indonesia's method, and reporting requirements, enjoy a presumption of WTO consistency".293 The
Philippines responds by stating that with "this absurd argument, Thailand seems to be engaged in
an effort to distract attention from the shortcomings in its own measures", and clarifying that "[f]or
the record, the Philippines makes no such allegations about Indonesian law".294
7.148. The Panel fully agrees that Indonesia 's measures cannot be presumed to have been
administered in an unreasonable manner under Article X:3(a). In the light of the Panel 's relevant
findings under Article X:3(a) in the first recourse to Article 21.5, the Panel accepts the premise that

285 Philippines' response to Panel question No. 144, para. 152.
286 (footnote original) The "Cost" in line 9 in Exhibit THA-74 increases from 1870.36 (first row) to
3170.56 (last row) in the period 1 November 2000 – 30 December 2003, which is an increase of 69.5 per cent.
See Exhibit THA-74.
287 Philippines' opening statement at the meeting of the Panel, para. 77.
288 Thailand's first written submission, paras. 1.5, 3.47, 3.48, 3.79, 3.96, and 3.175.
289 Thailand's first written submission, paras. 3.47 and 3.80.
290 Thailand's response to Panel question Nos. 133 and 134, para. 3.7.
291 Thailand's first written submission, para. 3.99.
292 Thailand's first written submission, para. 3.99.
293 Thailand's response to Panel question Nos. 133 and 134, para. 3.8.

it would be prima facie inconsistent with Article X:3(a) if Indones ia had imposed regulatory
requirements on PM Indonesia that were impossible to comply with, and exposed the producer to
legal jeopardy as a consequence of that non -compliance.295 However, this does not cast doubt on
the Philippines' factual assertion, which is substantiated with evidence in the form of the relevant
Indonesian laws and regulations and expert testimony, that the figures reported in the CK-21A form
could not reflect the actual costs or profits of PM Indonesia. Rather, relying on the presumption that
Indonesia would not impose impossible legal requirements in violation of Article X:3(a) serves to
contradict Thailand 's own assumption, which is unsubstantiated by any concrete evidence or
argumentation, that PM Indonesia was obliged to provide accurate figures when reporting its pricing
and cost information in the CK-21A form.
7.149. Additionally, Thailand asserts that "[u]nder Indonesian law, [PM Indonesia] had a legal
obligation to provide truthful and accurate information"296, and that "there is a general obligation to
provide accurate information on such government forms ".297 Thailand states that its authorities
assumed that "there is no provision under Indonesian law that allows private entities to legally
submit inaccurate information "298, and states that "the Philippines was unable to identify such a
provision [of Indonesian law] during the hearing".299
7.150. The Panel notes that Thailand does not identify any specific provision of Indonesian law to
substantiate the above assertion or respond to the Philipp ines' description of how the regulatory
requirements discussed above necessarily result in the inclusion of inaccurate figures in the CK-21A
form. The Panel has no difficulty with the proposition that there is a general obligation to provide
truthful information in the context of government forms, but this does not mean or imply that there
cannot be government forms that, in certain contexts and prepared for certain purposes, call for
rough estimates or approximations. The requirement as to the level of acc uracy depends on the
nature of the information provided, the purpose for which it was provided, and the regulatory context
in which it was provided. As a simple hypothetical example to illustrate this point, reporting figures
that understate one 's annual s alary in an income tax form in a way that triggers a reduced tax
liability is not necessarily the same thing as providing approximate arrival and departure dates when
applying for a travel visa months in advance of making a holiday booking. The provision of "proxy
costs" in the CK -21A form , made pursuant to the regulatory requirements as described by the
Philippines and its experts and in keeping with the context and purpose of that governmental form,
cannot be equated with lying, deception, or illegality.
7.151. Based on the foregoing, the Panel concludes that, as a result of the regulatory constraints
mandated by Indonesian excise tax law, the figures in the CK-21A forms could not represent PM
Indonesia's actual costs and profits, and necessarily erred on the side of overstating the actual costs
and profits of PM Indonesia and other parties involved in the supply chain.
7.2.3 The circumstances surrounding the Thai authorities' reliance on the CK-21A forms
7.152. Another fundamental premise of the Philippines ' case is that the Thai authorities knew, or
should have known, that the information in the CK -21A forms was inaccurate. According to the
Philippines, the content, purpose and format of the information reported in the CK-21A forms, and
the fact that it was not provided by the importer or producer, all raised serious questions about its
accuracy, relevance and reliability for Thailand 's customs valuation purposes.300 It asserts that the

295 The Panel recalls that in the first recourse to Article 21.5, the Philippines challenged a VAT
notification requirement, arising under Notification 187 and Order Por. 145-2555, obliging importers of
cigarettes to notify in June of each year the "average actual market price" as of the date of notification. The
Panel concluded that the importer could not know the "average actual market price" on the date of notification,
and thus was unable to ensure that it complied with the VAT notification requirement, and that this exposed
cigarette importers to the potential consequences of non-compliance, all of which gave rise to a violation of
Article X:3(a). (Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.924 and
7.935.)
296 Thailand's second written submission, para. 3.65.
297 Thailand's response to Panel question Nos. 133 and 134, para. 3.4.
298 Thailand's response to Panel question No. 165(a)-(c), para. 3.24.
299 Thailand's response to Panel question No. 165(a)-(c), para. 3.24.
300 Philippines' first written submission, paras. 252ff.

Thai authorities "knew that the information was questionable, both because it was questionable on
its face and because the importer made submissions to that effect".301
7.153. Thailand counters that its authorities had "the right to assume that the information provided
by the exporting country 's authority is accurate and truthful "302, and stresses the particular
circumstances surrounding the provision of the CK -21A information to the Thai authorities . The
notable circumstances identified by Thailand are that the CK -21A information was provided by PM
Indonesia to the Indonesian tax authorities as pa rt of tax filings required under the law 303; that it
was furnished to Thai officials by the Government of Indonesia304; that it was reasonable to presume
that under Indonesian law, PM Indonesia had a legal obligation to provide truthful and accurate
information305; that Indonesian authorities had already processed and relied on this information for
collecting local taxes306; and that the Thai authorities had no way of independently verifying PMTL's
characterization of Indonesia's tax system.307
7.154. The Panel agrees with Thailand that the authorities in an importing country are not required
to start their examination from a "presumption that information provided by foreign governments is
not accurate, or e ven worse, that producers knowingly submitted fabricated information", and
accepts that this would "impose excessive restrictions on the authority's ability to gather information
on the producer's costs and profits".308 The Panel is inclined to agree with Thailand that in principle
the customs authorities in an importing country have "the right to assume that the information
provided by the exporting country 's authority is accurate and truthful "309, and based on that
assumption may regard such information as "presumptively reliable"310 in terms of its accuracy.
7.155. However, such an assumption can only operate as that, i.e. rebuttable presumption, and
does not entitle an authority to deem information to be accurate without taking into account relevant
explanations subsequently provided by the importer. As already recalled further above, it may be
the case that, in examining the circumstances of sale, a customs authority considers that the
relationship influenced the price on the basis of an assessment " which is in itse lf a valid indicator,
or is suggestive", of whether the relationship influenced the price; however, if the importer responds
by providing other evidence that is relevant, in "such a situation, if the customs authority fail [s] to
take into account such information the customs authority would essentially be failing to conduct an
examination of the circumstances of sale that is apt to reveal whether the relationship influenced
the price ".311 In this case, the record of communications from PMTL to the DSI and the Public
Prosecutor shows that PMTL repeatedly informed the DSI and Public Prosecutor that the pricing and
cost information reported in the CK -21A forms did not represent PM Indonesia 's actual costs and
profits, and could not be relied upon for customs valuation purposes without violating the CVA.
7.156. According to the Philippines, at some point in early 2011, the DSI informed PMTL of its
suspicions that PMTL had under-declared customs values on entries in 2001-2003 based on CK-21A
excise tax forms obtained from the Government of Indonesia.312 From the record of communications
before the Panel, it appears that this information led PMTL to provide a detailed response, and also
to obtain and submit the two expert statements. The Panel has reviewed these communicat ions
made by PMTL to the DSI and Public Prosecutor regarding the unsuitability of the information
reported in the CK-21A forms, and summarizes them below.

302 Thailand's first written submission, para. 3.79.
303 Thailand's response to Panel question No. 164, para. 3.11.
304 Thailand's response to Panel question No. 164, para. 3.11.
305 Thailand's second written submission, para. 3.65.
306 Thailand's second written submission, para. 3.65. Elsewhere, Thailand refers to "the specific situation
of information provided by foreign governments that has already been used to collect taxes in that foreign
country". (Thailand's second written submission, para. 3.67.)
307 Thailand likewise maintains that, in the context of this WTO dispute settlement proceeding, it has no
way of independently verifying the Philippines' characterizations of Indonesia's excise tax system. (Thailand's
response to Panel question No. 134, para. 3.7.)
308 Thailand's first written submission, para. 3.79.
309 Thailand's first written submission, para. 3.79.
310 Thailand's response to Panel question No. 164, para. 3.15.
311 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), footnote 592.
312 Philippines' first written submission, paras. 95-96.

7.157. On 4 February 2011, PMTL sent a letter to the DSI in which PMTL made a "Request for Fair
Treatment and Justice".313 In this letter, PMTL states that it "understands that the DSI has formed
the view that the retail selling prices set out in the so -called Form CK-21A are comparable to PM
Thailand's declared customs values and therefore evidence to show that PM Thailand's import prices
declared to Thai Customs are incorrect".314 The letter then proceeds to set out a brief explanation of
"why, for the purposes of Thai customs valuation law, the information and retail selling prices
contained in Form CK-21A are not relevant to an assessment of the values declared as the import
prices by PM Thailand, and, most importantly, why it is unlawful and against customs valuation
principles to compare the retail selling prices of products manufactured in Indonesia for sale i n the
Indonesian domestic market (CK21 -A values) with the declared customs values of products
manufactured in Indonesia and exported to Thailand for resale in the Thailand domestic market (PM
Thailand's customs values) ".315 After setting forth this explanation, the letter states, "[t]o obtain
confirmation that the form and the information contained in the form have nothing to do with
customs valuation in respect of the products sold by the Indonesian manufacturer and imported by
PM Thailand, you can ask the above -mentioned Indonesian authority to verify the above
explanation."316
7.158. On 3 June 2011, the DSI sent a letter to PMTL 's attorney, recalling an earlier meeting held
on 14 March 2011 during which it was "agreed to discuss the possibility with PMTL regard ing
submission for the DSI team 's consideration of Form CK -21A, which provides details about
calculation of the domestic retail selling prices of tobacco products of the manufacturer in
Indonesia".317 The letter states that "a reasonable time has elapsed ", and proposes a meeting "to
confirm information and submit the above-mentioned documents to the DSI team".318
7.159. On 4 May 2012, counsel for PMTL responded by sending two witness statements to the DSI
to "support the facts asserted in the said Request for Fair Tre atment and Justice ".319 These two
statements concerned t he operation of Indonesia 's excise tax system for tobacco products in the
period 2001-2003, including the role of administrative form CK -21A.320 As noted earlier, t he two
statements were prepared by: (1) Joko Wiyono, a former Director of the Directorate General of
Customs and Excise, the Indonesian excise tax authority responsible for administering Indonesian
excise tax; and (2) Eka Siswani, a practicing Indonesian -qualified lawyer with expertise in
Indonesian excise tax law. Each statement provides a detailed explanation of why the figures
reported in CK-21A forms were not an accurate and reliable reflection of PM Indonesia's actual costs
and profits and, therefore, why the information in the forms was not suitable for Thailand's customs
valuation purposes.
7.160. The record before the Panel includes an exchange of letters between PMTL and the DSI
regarding the CK-21A forms over a period of years. In these letters, PMTL repeatedly articulates the
reasons why the information in the CK -21A forms is not relevant to the determination of PMTL 's
customs values, and the DSI repeatedly requests that PMTL provide it with copies of all of the CK-
21A forms:
a. On 11 September 2013, the DSI sent a letter to PMTL 's attorney, recalling an earlier
meeting held on 28 June 2011 during which it was confirmed that PMTL had been
notified "of DSI's request for documents about the cost prices of cigarettes (i.e., CK -
21A forms) but the Company still had to provide the reques ted documents ".321 The
letter states that "considerable time has elapsed without your submission of the
documents about the cost prices of cigarettes (CK -21 forms) to DSI ", and to "please
expedite your process of submitting such documents".322

313 Request for Fair Treatment and Justice, 4 February 2011 (English translation), (Exhibit PHL-279-B).
314 Request for Fair Treatment and Justice, p. 1.
315 Request for Fair Treatment and Justice, p. 2.
316 Request for Fair Treatment and Justice, p. 4.
317 Letter from the DSI to PMTL, 3 June 2011 (English translation), (Exhibit PHL-253-B), p. 1.
318 Letter from the DSI to PMTL, 3 June 2011 (English translation), (Exhibit PHL-253-B), p. 1.
319 Letter from PMTL to the DSI, 4 May 2012 (English translation), (Exhibit PHL-281-B), p. 1.
320 Witness statement of Dr. Joko Wiyono, 20 April 2012 (English translation), (Exhibit PHL-255-B);
Witness statement of Eka Siswani, 3 May 2012 (English translation), (Exhibit PHL-256-B).
321 Letter from the DSI to PMTL, 11 September 2013 (English translation), (Exhibit PHL-254-B), p. 1.
322 Letter from the DSI to PMTL, 11 September 2013 (English translation), (Exhibit PHL-254-B), p. 1.

b. On 26 September 2013, counsel for PMTL responded that "after June 28, 2011 (the date
referred to by you), by letters dated May 4 and 10, 2012, we have submitted to you the
statements made by two witnesses in relation to Forms CK 21 -A to clarify facts about
the cost prices of cigarettes as declared to the Indonesian authorities by Philip Morris
Indonesia".323 The letter resubmitted the same two witness statements again.
c. On 21 August 2015, the DSI sent a letter to PMTL requesting that the latter submit the
so-called CK -8 documents, another form related to the CK -21A forms that was
submitted to the Indonesian authorities by the exporter upon exportation.324 The letter
proposed "a person who can give explanation of the details of such document be
assigned to meet with and give statements to" a DSI official.325
d. In response, counsel for PMTL provided a statement on 11 September 2015 recalling
that, as set out in the expert witness statements provided, "it is not possible under Thai
law to compare the declared customs value with the retail selling price, such as the HJE,
in the exporting country".326 It reiterated that "[t]he hypothetical HJE is not relevant to
exported goods, as explained in the expert witness statement of Dr Joko Wiyono,
himself a former Director of the DGCE, which was submitted by the Company to the
DSI on May 4, 2012."327
7.161. On 22 September 2016, i.e. a decade after launching its initial investigation and 13-16 years
after the entries at issue cleared Thai Customs, the DSI issued a Memorandum of Allegations ("MoA")
against PMTL.328 One former employee of PMTL was informed of the allegations by way of a second
Memorandum of Allegations, dated 7 October 2016. Although the MoA dated 22 September 2016
compared the "false" transaction values to the supposed "actual" prices of the imported goods, it
did not explain or provide any further information on the grounds for doubting PMTL 's declared
transaction values, or the basis upon which the "actual" customs values were determined. This
prompted PMTL to send a "request for fair treatment and justice " to the Public Prosecutor, on
28 October 2018, after the DSI had issued the MoA. In that request to the Public Prosecutor, PMTL
recalled that the information in the CK -21A forms could not be used to determine a customs value
for its imports into Thailand, explaining that:
While it is unclear from the Memorandum of Allegations on which basis the DSI rejected
PMTL's declared customs values and which valuation method (if any) was used to
determine the DSI 's view of the customs va lue, PMTL understands that the DSI has
raised a concern about information contained in Form CK -21A, which was a form
previously required of the manufacturer in Indonesia by the Indonesian Customs and
Excise Department. For locally produced tobacco products the Indonesian manufacturer
was required to provide details of the prescribed components that are used to determine
the Retail Selling Price (known as the HJE) for all tobacco products to be sold in the
Indonesian domestic market. This form was required f or all locally manufactured
tobacco products irrespective of whether the product would be sold domestically or
exported.
The HJE reflected what the domestic retail selling price would be if the goods were sold
in Indonesia and was not the same as the manufacturers selling price to PMTL. The HJE
comprised numerous additional costs and charges that are only relevant to a sale in the
domestic market (e.g. Indonesian excise tax and the manufacturer 's and Indonesian
distributors' profits).
It is possible that the DSI may have mistakenly formed the view that the Form CK-21A
includes values which should be used as PMTL's declared customs values and therefore
evidence to show that PMTL 's import prices declared to Thai Customs Department are
incorrect. For the reasons explained and as clearly stipulated in Thai and international

323 Letter on evidence and witnesses in relation to CK-21A, 26 September 2013 (English translation),
(Exhibit PHL-280-B), p. 1.
324 Letter from the DSI to PMTL, 21 August 2015 (English translation), (Exhibit PHL-257-B), p. 1.
325 Letter from the DSI to PMTL, 21 August 2015 (English translation), (Exhibit PHL-257-B), p. 1.
326 T&G statement, 11 September 2015 (English translation), (Exhibit PHL-258-B REV), p. 2.
327 T&G statement, 11 September 2015 (English translation), (Exhibit PHL-258-B REV), p. 2.
328 DSI, Memorandum of Allegations, 22 September 2016 (English translation), (Exhibit PHL-13-B).

customs valuation laws, a domestic retail sales value in the country of export, such as
the HJE, cannot be used to reject or stipulate (i.e. replace) an importer 's declared
customs value in another country.
In this regard, PMTL submitted to the DSI two Indonesian expert opinions, from Eka
Wahyuning Siswani, dated 3 May 2012, and from Drs Joko Wiyono, dated 20 April 2012
(Attachment 2) by the cover letter dated May 10, 2012, as well as PMTL's own request
for fair treatment dated February 4, 2011 (Attachment 3) and written explanation dated
September 24, 2015 (Attachment 4) explaining the background to the CK -21A and a
similar Form CK -8 as well as why, for the purposes of customs valuation law, the
information and retail selling prices contained in Forms CK -21A and CK -8 are not
relevant to an assessment of the values declared as the import prices by PMTL, and,
most importantly, why it is unlawful and against customs valuation principles to
compare the retail selling prices of products manufactured in Indonesia for sale in the
Indonesian domestic market (CK -21A values) with the declared customs values of
products manufactured in Indonesia and exported to Thailand for resale in the Thailand
domestic market (PMTL 's customs values).329
7.162. In the light of the foregoing, the Panel considers that the DSI and Public Prosecutor had no
basis upon which to assume that the CK-21A information was reliable for the purpose of determining
the customs value of the ciga rettes imported by PMTL, in the light of PMTL's repeated written
explanations as to why it was not. Furthermore, for the reasons set forth below, none of the specific
circumstances identified by Thailand would justify the Thai authorities disregarding the explanations
and additional information subsequently provided by PMTL to the Thai authorities.
7.163. First, the fact that PM Indonesia itself provided the CK-21A information to the Indonesian
tax authorities does not, in the light of the explana tions provided by PMTL and its experts to the
Thai authorities, sustain an assumption that the figures reported therein are correct. To the contrary,
the fact that the figures were provided by PM Indonesia itself means that that PM Indonesia and
PMTL, the affiliated importer, would have been uniquely well positioned to explain to the Thai
authorities whether and if so why the information reporte d was inaccurate. I nsofar as Thailand's
arguments are to be taken as suggesting that PM Indonesia or PMTL were somehow estopped from
subsequently disputing the accuracy of the information because that information originated from PM
Indonesia, there is nothing in the CVA or the findings of the original or first compliance panel to
sustain the suggestion that an importer is somehow barred from pointing out errors or inaccuracies
in the information that it previously submitted or, as in the case with respect to the CK -21A
information, that an affiliated company/producer previously submitted to another government for
purposes unrelated to customs valuation.
7.164. Second, the fact that the CK -21A information was furnished to Thai officials by the
Government of Indonesia did not entitle the Thai authorities to deem it to be accurate and disregard
the explanations and additional information subsequently provided by PMTL to the Thai authorities
explaining why it was not. There is nothing in the CVA to suggest that information provided by a
foreign government is exempted from the general provisions requiring an authority to examine the
information before it.330 Furthermore, the Panel finds force in the Philippines' argument that if
exporting countries, like Indonesia, knew that the importing country would "blindly" rely on any
information provided, "this might have a chilling effect on th e willingness of the exporting country

329 Letter from PMTL to the Public Prosecutor, 28 October 2016 (English translation), (Exhibit PHL-
282-B).
330 As Japan observed in its oral statement, the third sentence of the CVA Article 1.2(a) stipulates that
"[i]f, in the light of information provided by the importer or otherwise, the customs administration has grounds
for considering that the relationship influenced the price, it shall communicate its grounds to the importer and
the importer shall be given a reasonable opportunity to respond” (emphasis added). Japan notes that this
sentence allows the customs administration of an importing Member to use information provided by the
customs administration of other Members, including, but not limited to, an exporting Member. Japan further
observes that there "is no provision which distinguishes such information provided by the customs
administrations of other Members from information provided by the importer. Nor is there a provision which
exempts such information from examination by the customs administration of an importing Member under
Article 1.2(a)." (Japan's third party statement, para. 9.)

to provide information, given that it is unlikely to be itself well-placed to judge the suitability of the
information for the particular purposes of the importing country".331
7.165. Third, the fact that it may have been reasonable to presume that PM Indonesia had a legal
obligation to provide truthful and accurate information in government forms would also not entitle
the Thai authorities to disregard the detailed explanations and additional information subsequently
provided by PMTL to the Thai authorities. In this regard, the Panel detects a significant unexplained
tension within the internal logic of Thailand's argumentation. On the one hand, Thailand maintains
that its authorities were entitled to presume that PM Indon esia had a legal obligation to provide
truthful and accurate information, and suggests that this presumption entitled the Thai authorities
to disregard the detailed information provided by PMTL as to why the information reported in the
CK-21A forms was not an accurate reflection of its costs. On the other hand, Thailand accepts that
its authorities relied on pricing and cost information reported by PM Indonesia in the CK-21A forms
to reach the conclusion that PMTL and PM Indonesia engaged in customs fraud, in violation of Section
27 of the Thai Customs Act, by declaring false prices to the Thai authorities for imports of cigarettes
over the period 2002-2003. Thus, the Thai authorities appeared to rely on the presumption that PM
Indonesia would never report i naccurate prices in a government form provided to the Indonesian
excise tax authorities to reach the conclusion that PM Indonesia and PMTL reported inaccurate prices
in the customs forms provided to the Thai customs authorities.
7.166. Fourth, Thailand emphasises that it was reasonable for the Thai authorities to assume the
accuracy of the information reported in the CK -21A forms because the Indonesian authorities had
already processed and relied on the CK -21A information for collecting taxes . The Panel considers
that insofar as PMTL's explanations to the DSI and Public Prosecutor would have implied that PM
Indonesia engaged in tax fraud by reporting information that resulted in it paying less tax than it
should have, the DSI and Public Prosecutor might have had solid grounds for being deeply sceptical
of PMTL's explanations.332 However, as a preliminary point, the collection of Indonesian excise taxes
were not based on the breakdown of the pricing and cost information reported in the CK-21A form,
but rather on the HJE proposed by the producer and approved by the DGCE. But more fundamentally,
for the reasons already given further above, the regulatory constraints mandated by Indonesian
excise tax law at the time (e.g. that the HJE had to exceed the prescribed minimum HJE fixed by
the DGCE for the particular category of tobacco product) resulted in an overstatement of PM
Indonesia's cos ts and profits. Thus, PMTL's explanation implied that, as a consequence of the
regulatory requirements already discussed, PM Indonesia paid more in taxes to the Government of
Indonesia than PM Indonesia would have paid if the HJE had been based on PM's actual costs and
profits. In these circumstances, it is not clear why the Thai authorities would assume the accuracy
of the information reported in the CK -21A forms on the basis that the Indonesian authorities had
already processed and relied on the CK-21A information for collecting local taxes.
7.167. Furthermore, the same unexplained tension in the internal logic of Thailand's argumentation
resurfaces. The relevant Thai authorities, i.e. the Customs Department and its BoA, had themselves
already processed and relied on the information provided by PMTL in the context of previously
determining the customs values of the imports at issue. 333 Accordingly, if the DSI and Public
Prosecutor had actually proceeded on the basis of an assumption that information provided by PMTL
was accurate and truthful, especially where prior assessments of taxes and customs duties owed
had been carried out on the basis of that information, this would not have led them to the conclusion
that PMTL under-declared its customs values, fraudulently and dishonestly, to avoid the payment of
the full import duties due on the actual price of goods. Thus, Thailand's argument appears to assume
that its authorities' could have regarded the Indonesian authorities' decision to collect taxes based
on certain information reported by PM Indonesia as establishing the accuracy of that information,

331 Philippines' second written submission, para. 132. Thailand argues that the Philippines has adduced
no evidence of such a chilling effect, but the Panel does not consider that this addresses the issue raised by the
Philippines' argument. The Philippines' has not argued that there has in fact been such a chilling effect, but
rather that there could be such a chilling effect if it were the case that authorities in exporting countries
considered that authorities in importing countries would rely on information provided without conducting any
examination of its accuracy or reliability. This is an argument laying out a hypothetical scenario, not a factual
assertion in respect of which evidence would need to be adduced.
332 The Panel recalls that in the first recourse to Article 21.5, it countenanced against lightly presuming
that a producer or importer would have engaged in tax fraud. See Panel Report, Thailand – Cigarettes
(Philippines) (Article 21.5 – Philippines), para. 7.362 and footnote 820.
333 See below, paragraph 7.175.

without according any weight to the Thai authorities' decision to collect customs duties and related
taxes based on certain other information reported by PMTL and PM Indonesia.
7.168. Fifth, Thailand suggests that its authorities had no way of independently verifying PMTL's
characterization of Indonesia's tax system. However, the Panel does not see how the Thai authorities'
lack of kn owledge about the CK -21A forms c ould serve as a basis for relying on that same
information, and deeming it to be accurate in disregard of the information subsequently provided by
PMTL explaining why it was not. The Panel recalls that it was the Thai authorities that decided to
value PMTL's imports on the basis of costing information reported by PM Indonesia in the context of
Indonesian tax forms. Furthermore, it is not clear why the Thai authorities, having obtained this
information from the Indonesian authorities, could not have sought to follow up on PMTL's invitation
to contact relevant Indonesian authorities to corroborate its explanations. In its letter of 4 February
2011 to the DSI, PMTL stated that "[t]o obtain confirmation that the form and the information
contained in the form have nothing to do with customs valuation in respect of the products sold by
the Indonesian manufacturer and imported by PM Thailand, you can ask the above -mentioned
Indonesian authority to verify the above explanation."334
7.169. In addition to these particular factual circumstances, which the Panel considers to be
unavailing, Thailand has sought to justify the Thai authorities' disreg ard of the Joko and Siswani
expert statements as follows:
The Philippines mentions repeatedly that PMTL provided expert reports to Thai
authorities explaining why PM Indonesia's information reported in form CK -21A is not
suitable for purposes of customs valuation in Thailand. However, the Philippines' expert
reports do not explain how, in these circumstances, could Thai authorities have
overcome the problem of the alleged inaccuracy. It would be naïve to think that the
alleged inaccuracy could be overcome s imply by requiring PMTL to voluntarily provide
information on its own costs and profits. Moreover, the Philippines' expert reports do
not provide the accurate information on costs and profits that would be necessary for
Thailand to properly apply the "cost plus profit" benchmark.
7.170. In the Panel's view, the principal difficulty with this argument is that it appears to assume
that the Thai authorities were entitled to rely on the compute d value method of customs valuation
for purposes of examining the circumsta nces of sale, and/or determining a revised customs value.
It is thus worth recalling that the primary basis for determining the customs value is the transaction
value; that the fact that the buyer and seller are related is not in itself grounds for regardi ng the
transaction value as unacceptable; that it is only where the authorities determine, on the basis of a
proper examination of the circumstances of sale, that the relationship influenced the price that they
may proceed to determine the customs value on an alternative method; and that those methods
must then be applied sequentially, such that the determination of a revised customs value on the
basis of the computed value method is only permissible where the customs value cannot be
determined on the basis of any of the preceding methods. Further, even if a customs authority
determines that the customs value cannot be determined under Articles 2 -5, recourse to Article 6
may raise difficulties. For example, Article 6.2 of the CVA clarifies that a foreign producer cannot be
compelled to provide its accounting records. If Article 6 is not available, an authority can resort to
the fall-back method under Article 7. Thus, the Thai authorities could have overcome the problem
of the alleged inaccuracy of the costing information reported in the CK -21A forms by accepting
PMTL's transaction values, or if they had other grounds for doubting the acceptability of those values,
by determining the customs value on the basis of a different method of customs valuation.
7.171. In the light of the foregoing the Panel is of the view that, while there may be cases in which
the customs authority in the importing country is entitled to assume that pricing and cost information
obtained from a foreign governmen t is accurate and truthful, in this case the DSI and Public
Prosecutor had no basis upon which to assume that the CK-21A information was reliable in the light
of PMTL's repeated written explanations as to why it was not.

334 Request for Fair Treatment and Justice, 4 February 2011 (English translation), (Exhibit PHL-279-B),
p. 4.

7.2.4 Conclusion
7.172. The Panel concludes that: (1) as result of the regulatory constraints mandated by Indonesian
excise tax law, the CK -21A forms could not represent PM Indonesia 's actual costs and profits, and
necessarily erred on the side of overstating the actual costs and profits of PM Indonesia and other
parties involved in the supply chain; and (2) there may be cases in which the customs authority in
the importing country is entitled to assume that pricing and cost information obtained from a foreign
government is accurate and truthful, but in the ci rcumstances of this case the DSI and Public
Prosecutor had no basis upon which to assume that the CK-21A information was reliable in the light
of PMTL's repeated written explanations as to why it was not.
7.3 The 2002-2003 Criminal Charges
7.3.1 General
7.3.1.1 Factual description of the Charges
7.173. This section provides a brief general factual description of the 2002-2003 Charges. It begins
with the events that culminated in the Public Prosecutor issuing them on 26 January 2017, and then
sets out the legal basis for the Charges under Thai law, the content of the Charges and their Annex,
and relevant events subsequent to the issuance of the Charges. The Panel will not repeat its earlier
factual findings on the Thai authorities' reliance on the CK-21A forms to determine the "actual price"
and actual value in the 2002-2003 Charges and the 1,052 revised NoAs respectively.335
7.3.1.1.1 The prior assessments of the entries at issue
7.174. Between January 2002 and July 2003, PMTL imported into Thailand 780 entries of Marlboro
and L&M cigarettes from Indonesia. PMTL's declared transaction values for each of these entries was
in the range of THB 7.35-7.70 per pack for Marlboro cigarettes, and THB 6.13-6.55 per pack for
L&M cigarettes.336
7.175. The customs values of the 780 entries were all assessed by other Thai government agencies
other than the DSI based either on those agencies' acceptance of PMTL's declared transaction values,
or based on the application of the deductive method pursuant to Article 5 of the CVA. Different sets
of entries were subject to different decisions, made at different points in time. The following table337
provides information on these other decisions made by Thai Customs Department, its BoA, and/or
the Supreme Court:
Number of entries,
brand(s), and period
covered by previous
decision(s)
Decision(s) and
customs value(s) assessed
Entry Nos. in the
Annex to the
Charges
573 entries of Marlboro and
L&M cigarettes imported
between 3 May 2000 and 28
December 2002
Out of these 573 entries,
321 entries of L&M
cigarettes imported between
22 January 2002 and 28
December 2002 are subject
to the Charges.
• in the first instance, the Customs Department
rejected PMTL's declared transaction values, and
assessed a higher customs value
• in a series of three BoA rulings issued on 30
September 2004, 26 July 2005, and 19 June
2006, the BoA: (i) accepted PMTL's declared
transaction values for 467 entries of L&M
cigarettes; and (ii) revised the Customs
Department's assessed values downwards for 106
entries of Marlboro cigarettes
Charges Nos. 1-321
210 entries of Marlboro
imported between 8 January
• in the first instance, the Customs Department
rejected PMTL's declared transaction values, and
assessed a higher customs value
Charges Nos. 322-
527

335 See Section 7.2 (The Thai authorities' reliance on the information in the CK-21A forms).
336 See DSI, Memorandum of Allegations, 22 September 2016 (English translation), (Exhibit PHL-13-B);
337 This table is based on the information provided by the Philippines in response to Panel question
No. 160, and by Thailand in its comments on the Philippines' response.

Number of entries,
brand(s), and period
covered by previous
decision(s)
Decision(s) and
customs value(s) assessed
Entry Nos. in the
Annex to the
Charges
2002 and 28 December
2002
206 entries of Marlboro
cigarettes imported between
22 January 2002 and 28
December 2002 are subject
to the Charges, the rest are
outside the scope of the
Charges
• the BoA Ruling of 16 November 2012 revised the
Customs Department's assessed values upwards
(to THB 9.30/pack338)
• on appeal by PMTL, the Tax Court ruled on 29
October 2014 that both the initial rejection of
transaction value and the subsequent BoA
decision were unlawful339
• on appeal by the Customs Department, the
Supreme Court ruled on 28 December 2017 (read
on 7 May 2018) that the BoA decision was not
unlawful, but amended the BoA Ruling by
deducting a P&GE rate of 15.05% for PMTL,
rather than the 12.44% (revising the THB
9.30/pack downwards, but no exact figure
provided)340
• the Customs Department must now take action to
implement this ruling, which will take the form of
revised customs valuation determinations that
may result in the issuance of new NoAs
60 entries of Marlboro and
L&M cigarettes imported
between 1 January 2003 –
19 February 2003
All of these entries are
subject to the Charges
• the Customs Department rejected PMTL's
declared transaction values, and assessed a
higher customs value
• PMTL did not pursue the appeal because of
commercial reasons
Charges Nos. 528-
557, 560-561, 564,
567-568, 672-693,
696-697 and 699
193 entries of Marlboro and
L&M imported after 10
March 2003341 (up to 2006)
All of these entries are
subject to the Charges
• the Customs Department accepted PMTL's
transaction values THB 7.35-7.70 (i.e. USD
9.71/1000 sticks) (Marlboro) / THB 6.13-6.55
(i.e. USD 7.35/1000 sticks) (L&M)
Charges Nos. 558-
559, 562-563, 565-
566, 569-671, 694-
695, 698, 700-780

7.3.1.1.2 Events culminating in the Charges
7.176. In August 2006, the DSI launched two criminal investigations into allegations that PMTL had
evaded customs duties and internal taxes by under-declaring the customs values of certain historical
entries. One of these investigations covered approximately 1,094 entries of cigarettes imported from
Indonesia over the period March 2000 to August 2003. The other investigation concerned entries
imported over the period between 2003 and 2007, and culminated in the Charges filed in January
2016 which are the subject of the first recourse to Article 21.5. When the original panel was
established in 2008, the DSI investigation was still ongoing and had not yet arrived at any conclusion
on whether to recommend prosecution.
7.177. On 22 September 2016, i.e. a decade after launching its initial investigation and 13-16 years
after the entries at issue cleared Thai Customs, the DSI issued a Memorandum of Allegations ("MoA")
against PMTL.342 One former employee of PMTL was informed of the allegations by way of a second
Memorandum of Allegations, dated 7 October 2016. In the MoA dated 22 September 2016, the DSI
alleged that PMTL committed offences under Section 27 of the Customs Act of Thailand (B.E. 2469

338 BoA Ruling, No. GorOr 112/2555/Por9/2555(3.1) and cover letter No. GorKor 0519(8)/(GorOr)/118,
16 November 2012 (English translation), (Exhibit PHL-21-B), p. 3. In the first recourse to Article 21.5, the
Panel found that this BoA Ruling was inconsistent with several provisions of the CVA.
339 Central Tax Court Ruling, 29 October 2014 (English translation), (Exhibit PHL-32-B), p. 18.
340 Supreme Court decision on Nov 2012 BoA Ruling of 7 May 2018, 28 December 2017 (English
translation), (Exhibit PHL-244-B).
341 At paragraph 77 of its first written submission, the Philippines stated that the Customs Department
accepted the declared transaction values for entries that cleared customs after 10 March 2003. Based on the
text of the Annex to the 2002-2003 Charges (Exhibit PHL-273-B), it appears that 67 entries cleared customs
after 10 March 2003.
342 DSI, Memorandum of Allegations, 22 September 2016 (English translation), (Exhibit PHL-13-B).

(1926)) (the "Customs Act "), and Section 83 of the Thai Criminal Code and Section 4 of the
Amendment Act of the Criminal Code (No. 6) B.E. 2526 (1983) (the "Criminal Code "). More
specifically, the DSI alleged that , over the period October 2001 through to August 2003, PMTL
imported 897 entries of Marlboro and L&M cigarettes, and that "the price of the imported articles …
was declared for the calculation of import duty by fraudulently and dishonestly using false price
lower than the actual price in order to avoid the payment of import duty and to pay lower import
duty than the one to be paid according to the actual price of goods".343 The MoA based this conclusion
on a comparison between: (1) PMTL 's declared transaction values, referred to as the "false" price;
and (2) alternative, "actual" customs values referred to as the "actual" price.
7.178. Although the MoA compared the "false" transaction values to the supposed "actual" prices
of the imported goods, it did not explain or provide any further information on the grounds for
doubting PMTL's declared transaction values, or the basis upon which the "actual" customs values
were determined. The MoA included the following figures on the "actual" customs price, and the total
government revenue lost as a result of the alleged under-declaration:
The prices of Marlboro in all import entries were declared at USD 8.50 and USD 9.71
per50 packs (1,000 cigarettes), which was calculated into Thai currency at the then
exchange rate to be THB 7.35 to THB 7.70 per1 pack (20 cigarettes) for each period of
importation. The prices of L&M in all import entries were declared at USD 7.35 per50
packs (1,000 cigarettes), which was calculated into Thai currency at the then exchange
rate to be THB 6.13 to THB 6.55 per1 pack (20 cigarettes). For the actual prices of
goods which should have been declared for the payment of import duty at such time,
Marlboro cigarette was THB 9.133353715 t o THB 16.70387976 per 1pack
(20 cigarettes) according to the import period and exchange rate whereby L&M was THB
7.561466 to THB 13.9932672 per 1 pack (20 cigarettes) according to the import period
and exchange rate.
The above fraudulent acts caused the payments of customs tax and import duty for
Marlboro and L&M cigarettes in all import entries to be lower than the actual amount
and the shortage amount was THB 8,684,393,280.12.
7.179. On 26 January 2017, the Public Prosecutor filed the 2002 -2003 Charges against PMTL an d
one of its former employees. The competent criminal court accepted and issued the Charges on the
same day.344 The Charges cover 780 entries of Marlboro and L&M cigarettes imported from Indonesia
between January 2002 and July 2003. In respect of these entries of Marlboro and L&M cigarettes by
PMTL, the Charges allege that offences have been committed under Section 27 of the Customs Act,
as well as other offences that are consequential to a violation of Section 27.345
7.3.1.1.3 Section 27 of the Customs Act
7.180. As the Panel explained in Section 7.3.1.1.2 (Section 27 of the Customs Act) of its Report in
the first recourse to Article 21.5, Section 27 of the Customs Act makes it a crime to avoid or attempt
to avoid the payment of any customs duties with the intention to defraud the government of th e
customs duties and taxes which must be paid for such goods. The English translation of Section 27
submitted by the Philippines reads as follows346, with relevant terms highlighted:

343 DSI, Memorandum of Allegations, 22 September 2016 (English translation), (Exhibit PHL-13-B).
344 The Criminal Court, Charges, Case Black No. Or. 232/2560, 26 January 2017 (English translation),
(Exhibit PHL-14-B).
345 The other alleged violations are: Section 115 quater of Custom Act B.E. 2469 (1926) (as amended to
(No. 22) B.E. 2557 (2014)) (English translation), (Exhibit PHL-34-B); Section 3 of the Customs Act (No. 11),
B.E. 2490 (1947) (English translation), (Exhibit PHL-98-B); Section 10 of the Customs Act (No. 17), B.E. 2543
(2000) (English translation), (Exhibit PHL-8-B); Sections 83 and 91 of the Criminal Code, Section 4 of the
Amendment Act of the Criminal Code (No. 6) B.E. 2526 (1983) (English translation), (Exhibit PHL-99-B);
Sections 4, 5, 6, 7, 8 and 9 of The Reward Giving to Offender Suppression Act. B.E. 2498 (1946) (English
translation), (Exhibit PHL-16-B).
346 In the first recourse to Article 21.5, the Panel referred to the English translation submitted by the
Philippines for the reasons set forth in footnote 980 of its Report. In this second recourse to Article 21.5,
Thailand again submits its own English translations of certain Thai government documents already submitted
by the Philippines, even though Thailand "does not consider that there are any substantive differences between

Any person who shall import or bring into the Kingdom any uncustomed, restr icted, or
prohibited goods, or any goods which have not been duly passed through the Customs;
or shall export or take out of the Kingdom any such goods; or shall assist in any way in
importing or exporting such goods; or shall, without official authority, remove or assist
in removing any such goods from any ship, wharf, godown, warehouse, place of
security, or store; or shall harbour, keep, or conceal, or permit or cause to be
harboured, kept, or concealed, any such goods; or shall be in any way concerned i n
carrying, removing, or dealing with such goods; or shall be in any way concerned in any
evasion or attempted evasion of any duties of Customs , or of any of the laws and
restrictions relating to the importation, exportation, landing, warehousing, and delivery
of goods with intent to defraud His Majesty 's Government of any duties due on such
goods or to evade any prohibition or restriction of or applicable to such goods; shall for
each offence be liable to a fine equal to quadruple the duty-paid value of the goods, or
imprisonment for a period not exceeding ten years, or both fine and imprisonment.
7.181. Thus, Section 27 of the Customs Act makes it a criminal offense to evade the payment of
"duties on Customs", with the intention to "defraud the government" of the "duties" that are "due
on such goods". It further provides that the "fine" for such offense shall be four times the "duty-paid
value of the goods".
7.3.1.1.4 The content of the Charges and the Annex
7.182. The Charges set forth the allegation that PMTL and one of its form er employees violated
Section 27 of the Customs Act by declaring a "false price" for Marlboro and L&M cigarettes contrary
to the "actual price", with the intention to defraud the government of taxes and customs duties. 347
The Charges repeat this allegation in the context of providing particulars on each of the 780 entries
of Marlboro and L&M cigarettes set forth therein. For each of those 780 entries, the Charges identify
the "actual price" and state that "the Exhibit attached to the Complaint", or the "Annex" as referred
to by the parties, shows the details "with respect to the Number of Import Entry, details and quantity
of cigarettes for each brand, price per pack of cigarettes falsely and jointly declared by the two
Defendants, actual price of cigarettes for each brand, amount of tax and duty under customs law
that the two Defendants and others were liable to pay, and the price of goods including the duty".
7.183. The penalties following a conviction u nder Section 27 of the Cu stoms Act could include the
imprisonment of one of PMTL's former employees, and the payment of fines by PMTL in an amount
that shall equal four times the duty -paid value. Under the new Customs Act, in the event of a
conviction, Section 243 provides for the imposition of "a fine from one half but not exceeding four
times of the duty additionally payable".348 The Annex to the 2002-2003 Charges calculates the deficit

Thailand's and the Philippines' translations". Thailand requests that the Panel "use and refer to Thailand's
translations in its proceedings and report", as there "is no a priori reason why the Panel should refer to the
Philippines' translations simply because the Panel received them first", and as "this is a dispute involving Thai
measures, the Panel should, a priori, refer to Thailand's own translations of its own measures". According to
Thailand, this "will also assist the relevant Thai officials in reading and understanding the Panel's report. The
Philippines retains the right to object to any of Thailand's translations." (Thailand's first written submission,
footnote 13.)
The Panel recalls that paragraph 16 of its Working Procedures establishes a procedure for the parties to
object to translations submitted by one another. It is not clear that it would be consistent with the purpose of
paragraph 16 to rely on the English translations submitted by Thailand, in the absence of any objection from
Thailand as to the accuracy of the translations already submitted by the Philippines (and/or putting the onus on
the Philippines to object). However, it is unnecessary to dwell on that issue, because the Panel Report in the
first recourse to Article 21.5 already presents English translations of certain provisions and terms in the Thai
Customs Act that are relevant in this second recourse to Article 21.5. The Panel sees an obvious potential for
confusion if the Panel in this second recourse to Article 21.5 were to rely on different English translations of
provisions in the Thai Customs Act that differ from the English translations of the same provisions already
contained in the Panel Report in the first recourse to Article 21.5. In addition, Thailand has not explained how
the use of Thailand's English translations would assist the relevant Thai officials in reading and understanding
the Panel's Report, in the absence of any substantive differences between Thailand's and the Philippines'
translations.
347 The Criminal Court, Charges, Case Black No. Or. 232/2560, 26 January 2017 (English translation),
(Exhibit PHL-14-B).
348 Thai Customs Act B.E. 2560, 14 May 2017 (English translation), (Exhibit PHL-246-B). See Philippines'
first written submission, para. 348; Thailand's first written submission, footnote 159.

duty payable on the imports, which amounts to THB 108,928,466 (approximately USD 3.4
million).349 Thus, the maximum fine, therefore, would amount to four times the deficit duty payable
(i.e. USD 13.6 million). The Charges also request the Court to order "the payment of a bounty to
the informant according to the law".
7.184. There were more entries covered in the DSI investigation than in the 2002 -2003 Charges
because of the 15-year statute of limitation contained in Section 95(2) of the Thai Criminal Code.350
Thailand explains that this provision applies in the following manner to the facts of this case351: the
DSI investigation, which started in August 2006, originally covered 1,094 entries imported from
Indonesia between 1 March 2000 and 26 August 2003; the MoA, dated 22 September 2016,
mentions all 1,094 entries because it is required to inform the accus ed of the entire set of entries
for which the DSI originally considered whether there was any wrongdoing; however, by the time
the MoA was filed, the statute of limitations had expired for some entries, reducing the number of
entries subject to the DSI's case to 897 entries imported from 9 October 2001 to 26 August 2003.
Finally, when the Public Prosecutor issued the 2002-2003 Charges on 26 January 2017, the statute
of limitations had expired for a further set of entries, reducing the number of entries subj ect to the
Charges to 780 entries dated from 22 January 2002 to 28 July 2003.
7.3.1.1.5 The explanation of how the "actual" value/price was determined
7.185. The Charges themselves do not specify what the "actual price " refers to or how it was
calculated, but as explained below, the Thai authorities subsequently offered some clarification to
PMTL in the context of explaining the basis for the "actual value" in the NoAs.
7.186. After the DSI issued its MoA on 22 September 2016, PMTL sought clarification regarding the
basis for the determination of the "actual" value therein. Specifically, on 7 October 2016, PMTL wrote
to the DSI, requesting that the DSI explain, among other things, the basis for the valuation of the
"actual" value of goods and which method of customs valuation was employed in the allegation, as
well as the reasons why the transaction value was rejected .352 PMTL stated that without the
information that it requested, it was "unable to understand the allegation and un able to give
statements in defending the case".353 On 3 November 2016, the DSI responded by informing PMTL
that if it "wish[ed] to obtain the information which [it] stated in the letters that [it] sent to the
Special Investigation Officers as mentioned above, please contact and coordinate with the public
prosecutor".354
7.187. On 14 November 2016, PMTL addressed the same questions to the Public Prosecutor, with
respect to the MoA. 355 PMTL received no response. 356 There is no information before the Panel on
whether PMTL sought any further explanation following the issuance of the Charges in January
2017.357
7.188. Although the 2002-2003 Charges do not p rovide any indication of the factual basis for the
"actual price ", certain information can be gleaned from the Customs Department 's explanation
regarding the basis used to determine the "actual value" set out in the 1,052 NoAs. To recall, o n
29 November 2017, Thailand issued 1,052 revised NoAs covering customs entries imported between

349 Annex to the 02-03 Charges, 26 January 2017 (English translation), (Exhibit PHL-273-B).
350 Section 95(2) of the Thai Criminal Code B.E. 2499 (1956), (Exhibit THA-84).
351 Thailand's response to Panel question No. 158, para. 1.1.
352 Letter from PMTL requesting clarification of the MOA, 7 October 2016 (English translation),
(Exhibit PHL-275-B), p. 3.
353 Letter from PMTL requesting clarification of the MOA, 7 October 2016 (English translation),
(Exhibit PHL-275-B), p. 1.
354 Letter from the DSI to PMTL, 3 November 2016 (English translation), (Exhibit PHL-276-B).
355 Letter from PMTL to the Public Prosecutor, 14 November 2016 (English translation), (Exhibit PHL-
277-B).
357 In its comments on the Interim Report, the Philippines states that "As the Panel indicates in
paragraph 7.191, on 24 July 2017, the Public Prosecutor successfully obtained a court order preventing
information regarding the 02-03 Charges from being shared with the Philippines and, hence, the Panel. Due to
this far-reaching non-disclosure order, the Philippines was unable to provide the Panel with information on any
additional efforts made by PM Thailand to clarify the basis for the determination of the "actual price" in the
02-03 Charges. Nor can the Philippines indicate whether, if such efforts were made, they were successful."
(Philippines' request to review the Interim Report, para. 117.)

January 2001 and July 2003. The revised NoAs demanded payment of THB 25,480,317,518
(approximately USD 800 million) within 30 days. Under the "reason for assessment" for each NoA,
the Customs Department stated that "[f]rom the investigation of the Department of Special
Investigation, it was found that the actual value" was a specified amount per pack (varying by NoA),
and that was "calculated from the cigarette cost structure o f PT Philip Morris Indonesia obtained
from the Indonesian government ".358 On 14 December 2017, PMTL sent a letter to the Customs
Department requesting an explanation of the customs valuation determinations in the 1,052 revised
NoAs.359 In a letter of 10 January 2018, the Customs Department responded to PMTL 's request for
an explanation of the customs valuation determinations as follows:
[T]he Department of Special Investigation had conducted an investigation into Philip
Morris (Thailand) Limited in the case of importation of Marlboro and L&M cigarettes from
Indonesia by false declaration to evade duty. The Director General of the Department
of Special Investigation recommended for prosecution an offence under Section 27 of
the Customs Act B.E. 2469 (1926), incor porating Section 83 of the Criminal Code and
Section 20 of the Criminal Procedure Code. The Attorney General issued a prosecution
order in a black case No. Or.232/2560. The Customs Department was informed of the
case status to proceed with relevant actions. In this regard, the Department of Special
Investigation prepared the table summarizing the CIF prices of Marlboro and L&M
cigarettes for the Customs Department to assess the value and calculate the taxes and
duty which were not fully paid. The information of prices in this case is taken care of by
the Department of Special Investigation. If you wish to know relevant information, [you]
can inquire directly from the Department of Special Investigation.360
7.189. The reasons given by the Customs Department are relevant to the 2002 -2003 Charges
because 779 of the 780 entries subject to the 2002 -2003 Charges were also covered by the 1,052
revised NoAs, and the "actual value" that the Customs Department determined for those overlapping
779 entries subject to the NoAs is identical to the "actual price" that the Public Prosecutor determined
for the purpose of the 2002-2003 Charges, and that the DSI determined in the MoA. Thus, when the
Customs Department stated that the "actual" values reflected in the 1,052 revised NoAs were
"calculated from the cigarette cost structure of PT Philip Morris Indonesia obtained from the
Indonesian government", that means that the same is true of the "actual" prices reflected in the
2002-2003 Charges.
7.3.1.1.6 The criminal proceedings
7.190. There are ongoing proceedings before the Thai Criminal Court relating to the Charges. The
parties indicated that the trial was expected to begin in late 2018 and would last until early 2019,
with a decision from the court due shortly thereafter.361
7.191. On 24 July 2017, the Public Prosecutor successfully obtained a court order preventing
information regarding the 2002 -2003 Charges from being shared with third parties to the criminal
proceedings, including the Philippines. The no n-disclosure order is far -reaching and covers every
aspect of the proceedings. For example, PMTL cannot share with any third party – including the
Philippines and the Philippines' WTO counsel – any part of the case record, including: (1) the charge
documents; (2) court orders (including the non-disclosure order itself) and other formal procedural
documents; ( 3) the submissions made by either party to the court on any topic; and,
(4) documentary evidence submitted by either party.362
7.3.1.2 Claims and order of analysis
7.192. The parties' requests for findings in relation to the Charges are set out in greater detail in
Section 3 of the Report. As reflected there, the Philippines ' claims and Thailand 's defences raise

358 Sample Notices of Assessment (English translation), (Exhibit PHL-240-B).
359 Letter from PMTL to the Director General of the Customs Department, 14 December 2017 (English
translation), (Exhibit PHL-247-B).
360 Letter from the Customs Department to PMTL, 10 January 2018 (English translation), (Exhibit PHL-
250-B).
361 Philippines' first written submission, para. 341; Thailand's first written submission, paras. 3.39-3.40.

numerous issues. In this section, the Panel will briefly set out the consi derations that inform the
order of analysis of those claims and defences. For the most part, the Panel 's order of analysis
reflects the order of analysis in the parties' submissions.
7.193. The Panel will begin with Thailand's argument that the 2002 -2003 Charges contain
insufficient information to allow the identification of the precise content of any conduct that could be
declared WTO -inconsistent. The Philippines submits that this argument is essentially a "re-
packaging" of Thailand's "ripeness" argument from the first recourse to Article 21.5.363 Leaving aside
that characterization, there is undoubtedly a significant degree of overlap and repetition between
the argument that Thailand makes i n this case, and its argument from the first recourse to Article
21.5 tha t was formulated in terms of "ripeness". In the first recourse to Article 21.5 , Thailand
characterized the "ripeness" issue as one going to the Panel's competence, and presented it as a
threshold issue to be resolved prior to addressing the applicability o f the CVA to the Charges. 364
Thailand follows a similar approach in its submissions in this second recourse to Article 21.5. In the
first recourse to Article 21.5, the Panel addressed this argument as a threshold issue, prior to
addressing the applicability of the CVA to the Charges. The Panel will follow the same approach, with
a view to harmonizing the structure of its analysis with that of the Panel Report in the first recourse
to Article 21.5.
7.194. The Panel will then proceed to address the applicability of t he CVA to the Charges. In that
connection, the Panel will first address Thailand 's argument that the 2002 -2003 Charges are not
subject to the CVA on the grounds that the Public Prosecutor is not part of Thailand 's "customs
administration". The Panel will t hen address Thailand 's additional arguments that t he 2002-2003
Charges are not subject to the CVA on the grounds that the Charges do not meet the first or second
elements of the definition of "customs valuation" in Article 15.1(a) of the CVA. The Panel will also
consider Thailand's additional comments relating to the "intention to defraud" aspect of the Charges.
7.195. After addressing the above issues relating to the applicability of the CVA to the 2002 -2003
Charges, the Panel will turn to the Philippines' claims that the 2002-2003 Charges are inconsistent
with the CVA obligations invoked by the Philippines . In the context of ad dressing the Philippines '
claims, the Panel will refer back, as necessary, to its earlier factual findings on the Thai authorities'
reliance on the CK-21A forms to determine the "actual price".365
7.196. Finally, the Panel will address Thailand's defence under Article XX of the GATT 1994 .
Thailand's defence under Article XX of the GATT 1994 in this second recourse to Article 21.5 raises
the same two main issues that arose in the first recourse to Article 21.5. First, whether Article XX is
available to justify a vio lation of the CVA. If so, the second issue is whether Thailand has
demonstrated that the aspects of the Charges giving rise to the inconsistency with the CVA are
justified under either Article XX(d) or Article XX(a).
7.3.1.3 Claims not pursued
7.197. The Philippines ' panel request contains a number of claims in respect of the 2002 -2003
Charges, some of which it has elected not to pursue in this proceeding. In its panel request, the
Philippines claimed that different aspects of the Charges are inconsistent with several dis tinct
obligations in the CVA and the GATT 1994. The Philippines has pursued its claims under Articles 1.1
and 1.2(a) of the CVA (including both the substantive obligation in the second sentence and the
procedural obligation in the third sentence 366), and its claims under Articles 2 to 7 of the CVA.
However, the Philippines did not pur sue its claims that were included in the panel request under
Article 16 of the CVA, or under Article III:2 of the GATT 1994.367

363 Philippines' second written submission, paras. 243, 292, and 305.
364 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.459.
365 See Section 7.2 (The Thai authorities' reliance on the information in the CK-21A forms).
366 The Panel recalls that in the first recourse to Article 21.5, the Philippines' panel request included a
claim under Article 1.2(a), third sentence, in relation to the 2003-2006 Charges; however, the Philippines did
not pursue that claim in the course of the proceeding. (See Panel Report, Thailand – Cigarettes (Philippines)
(Article 21.5 – Philippines), para. 7.463.)
367 Panel request, para. 20, third and fourth bullets. The Philippines has pursued its parallel claim under
Article 16 of the CVA in relation to the 1,052 revised NoAs.

7.198. In its first written submission, the Philippines observes that the 2002-2003 Charges "invoke
the provisions of a Thai law that provides for the payment of a 'bribe' to informants who facilitate
the prosecution of certain offences ".368 The Philippines states that the relevant provisions of Thai
law provide that an informant is entitled to receive a "bounty" or "bribe" amounting to 30 percent
of the potential fine, and therefore the "informant" is personally eligible to receive approximately
USD 4.1 million in the event of PMTL's conviction.369 The Panel notes that in this second recourse to
Article 21.5, the Philippines has not requested that the Panel make any finding that the alleged
"bribes" or "rewards" are inconsistent with the CVA. Thus, as was the case in the first recourse to
Article 21.5, the Panel is not called upon to make findings as to the WTO -consistency of Thailand's
"bribes" and "rewards" scheme.370
7.3.2 Existence of a challengeable measure
7.3.2.1 Introduction
7.199. In the first recourse to Article 21.5, Thailand argued that the 2003-2006 Charges were not
a matter "ripe" for adjudication in WTO dispute settlement proceedings , because they constituted
merely an allegation of criminal conduct, and not a judgment by the Criminal Court. In this
connection, Thailand submitted that: (1) the 2003-2006 Charges were inseparable from the criminal
proceedings that they triggered; (2) the 2003-2006 Charges did not represent a customs valuation
"determination" for the purposes of the CVA; and (3) the Philippines' claims directed at the Charges
were effectively seeking "an abstract ruling on hypothetical future measures ", namely on the
outcome of the then ongoing criminal court proceedings.371 The Panel found that it was not precluded
from considering the WTO-consistency of the Charges on the basis of a "ripeness doctrine", because
the Charges constituted a distinct measure for purposes of WTO dispute settlement, because they
were a determination for purposes of the CVA, and because an assessment of the WTO-consistency
of the Charges d id not require the Panel to engage in speculation on future measures or events,
notwithstanding that no judgment had been rendered by the Criminal Court.372
7.200. In this second recourse to Article 21.5, Thailand argues that due to the insufficient factual
information contained in the 2002 -2003 Charges, it is impossible to identify the precise content of
any conduct in the Charges that could be declared WTO -consistent or WTO-inconsistent and, as a
consequence, the Philippines cannot make a prima facie case of inconsistency under the CVA .373
Moreover, were the Panel to examine the CVA -consistency of a conduct whose precise content has
not yet materialized or of facts not yet confirmed by the Thai criminal court, t he Panel would be
substituting its own judgement for the competent authority 's judgment and thereby engaging in a
de novo review.
7.201. The Philippines submits that it is able to make, and has made, a prima facie case that the
2002-2003 Charges are inconsistent with the CVA 374 and adds that Thailand 's argument "re-
packages" its "ripeness" argument raised in the first recourse to Article 21.5.375
7.202. The Panel will begin with a summary of the main arguments of the parties. The Panel will
then analyse the issues raised th rough the same analytical framework used by it in the context of
the first recourse to Article 21.5. As indicated above, the Panel considered that the salient issues
are: (1) whether the Charges are a distinct measure for purposes of WTO dispute settlement ;
(2) whether the Charges constitute a "determination" for the purposes of the CVA; and (3) whether
the Panel can make findings on the WTO-consistency of the Charges without engaging in speculation
as to when or how the ongoing criminal proceedings before the Criminal Court may be concluded,
and without issuing abstract rulings on hypothetical future measures.376 The Panel will then examine
whether a different conclusion would be arrived at if it were to analyse the issue before it in terms

370 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.464.
371 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.558.
372 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.606.
373 Thailand's first written submission, paras. 3.26-3.43; second written submission, paras. 3.40-3.48;
opening statement at the meeting of the Panel, paras. 3.24-3.28.
374 Philippines' second written submission, paras. 290-317.
375 Philippines' second written submission, paras. 243, 292, and 305.
376 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.575.

of the legal concepts that Thailand urges the Panel to apply, namely the Philippines being unable to
make a "prima facie case" or the Panel engaging in a "de novo review".
7.3.2.2 Main arguments of the parties
7.203. Thailand submits that the 2002 -2003 Charges do not contain sufficient factual information
to allow the Philippines to make a prima facie case of inconsistency under the CVA.377 Thailand recalls
that under the standard of review of Article 11 of the DSU, panels are required to make an objective
assessment of the facts of the case and the applicability of and conformity with the relevant covered
agreements and that this standard, according to the Appellate Body, constitutes neither de novo
review as such, nor t otal deference.378 Thailand argues that because a panel cannot conduct a de
novo review and must critically examine the authority 's explanation in depth, a complaining party
can make a prima facie case only if the "precise content" of the measure, at the time of the panel's
examination, "reflects a conduct that is inconsistent with the CVA".379 In other words, Thailand states
that "if a panel were to examine the CVA -consistency of a conduct whose precise content has not
yet materialized or of facts not yet conf irmed, that panel would risk conducting a de novo
examination" as it would be substituting its own judgement for the authority 's judgement with
respect to the fact and "would also risk making predictions about events or measures taken
subsequent to the adoption of the challenged measure".380
7.204. Thailand submits that "[t]he veracity and reliability of the arguments put before this Panel
by the Philippines regarding the information provided by the Indonesian government is a factual
matter that has not yet been fully addressed or resolved by any Thai governmental agency or Thai
court".381 Specifically, PMTL's assertion that "the costs reported to the Indonesian government are
its own 'fabricated plugs' and, therefore, cannot be used by Thailand for customs valuation purposes
… is a factual assertion that has not been addressed yet by Thailand's Criminal Court".382 Therefore,
"one cannot expect that the criminal charges will contain final determinations of the factual
circumstances"383, which means that "there is not enough information to identify the precise content
of any conduct that could be declared WTO -consistent or WTO -inconsistent".384 Thailand clarifies
that "it is not arguing that there is no measure in the sense of Article 6.2 of the DSU. Rather, the
amount and clarity of information available makes it impossible for the Philippines to make a prima
facie case in respect of the 02-03 charges".385
7.205. Moreover, Thailand claims that, were the Panel to examine the Philippines' claims in light of
the unconfirmed facts, "it would necessarily engage in a de novo review of these facts" as "it would
'conduct[] its own assessment, relying on its own judgment ' of the facts before the Thai criminal
court" thereby in effect "substituting its judgment for that of the Thai Criminal Court"386 and pre-
empting the analysis to be conducted by the Thai criminal court. 387 Additionally, an examination of
the CVA-consistency of the 2002 -2003 Charges "would force the Panel to make predictions about
the outcome of the Criminal Court's assessment of the facts, the same type of analysis against which
the first Article 21.5 panel and the Appellate Body have previously cautioned".388
7.206. The Philippines submits that it has made a prima facie case that the 2002-2003 charges are
inconsistent with the CVA.389 Thailand's argument that "a lack of factual information in the charges
means that 'the precise content of the measure ' is uncertain " and the ensuing result that the
"Philippines cannot make a prima facie case unless the Panel undertakes a de novo review" is

378 Thailand's first written submission, para. 3.27.
379 Thailand's first written submission, para. 3.29.
380 Thailand's first written submission, para. 3.30.
381 Thailand's first written submission, para. 3.36.
382 Thailand's first written submission, para. 3.41.
383 Thailand's first written submission, para. 3.37.
384 Thailand's first written submission, para. 3.38.
385 Thailand's first written submission, para. 3.42.
386 Thailand's first written submission, para. 3.39.
387 Thailand's first written submission, para. 3.40.
388 Thailand's first written submission, para. 3.41.
389 Philippines' second written submission, paras. 290–317.

incorrect.390 The Philippines asserts that "[t]here is nothing uncertain … about 'the precise content
of the measure'."391
7.207. The Philippines recalls that "where a customs administration fails to provide a reasoned and
adequate explanation for its customs valuation determinations, a panel has no option but to find
that the competent authority has not performed the analysis correctly ".392 More concretely, the
Philippines contends that it has "made a prima facie case of CVA-inconsistency by showing that the
Public Prosecutor rejected the transaction values and determined alt ernative actual values using
CK-21A information that was not fit for use under the CVA".393 In these circumstances, the
Philippines asserts, the Panel would not be conducting a de novo review, because it would simply be
reviewing the customs valuation determinations made by the Public Prosecutor. 394 Rather, "[t]he
Panel would only undertake a de novo review if it made its own determination, under Article 1.2(a),
whether the transactions values are acceptable and/or if it determined its own alternative customs
values".395
7.208. The Philippines further recalls that the Panel in the first recourse to Article 21.5 ruled that it
could make findings on the WTO -consistency of the 2003 -2006 Charges without engagin g in
speculation on future measures or events and held that the 2003 -2006 Charges were intended to
have legal effects and legal status in and of themselves; involved a final decision, and not a
provisional or intermediate step; and were a defined and forma l act taken by an organ of the Thai
state.396 In this connection, the Philippines points out that Thailand has not explained "how the
2002-2003 Charges are substantively different from the [2003 -2006] Charges, such that these
findings do not apply ".397 The Philippines asserts that both sets of Charges reject the transaction
value on the basis of a comparison with alternative "actual" customs values; were adopted by the
Public Prosecutor, alleging an offense under Section 27 of the Customs Act; are "intended to have
legal effect under Thai Law", and "have legal status in and of themselves"; involve "a final decision"
and "a defined for mal act" by the Public Prosecutor; and are not "provisional" or "intermediate"
steps.398 In the Philippines ' view, Thailand 's argument that "the 02 -03 charges are based on
'unclear', 'unexamined', '[un]verified' and 'insufficient' information"399 and Thailand 's acceptance
"that these 'unclear' facts constitute Thailand 's only evidence supporting the 02-03 Charges"400 is
"deeply troubling" considering the serious and dire ct legal consequences that the C harges entail:
the accused becoming subject to the mandatory jurisdiction of the criminal court; being required to
appear before the court to answer the Charges and attend the hearings relating to the Charges;
having to apply for and pay bail to secure temporary release during the proceedings; having an
officially recorded indictment and accusations, and having to pay the costs of a defence for criminal
proceedings.401
7.3.2.3 Analysis by the Panel
7.3.2.3.1 General considerations
7.209. In the first recourse to Article 21.5, Thailand claimed that the 2003 –2006 Charges
constituted merely an allegation of criminal conduct, not a judgment by the Criminal Court, and on
that basis Thailand argued that those charges were not a matter "ripe" for adjudication in WTO
dispute settlement proceedings. The Panel noted that the concept of "ripeness" does not appear
explicitly in any of the covered agreements, and indicated that it was unaware of any panel or
Appellate Body report that has conducted an analysis of the admissibility or merits of a claim in
terms of a "ripeness" doctrine.402 Rather than framing the analysis in terms of an "undefined" and

401 Philippines' second written submission, paras. 313–314.
402 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.569.

"novel" ripeness doctrine, the Panel opted to analyse Thailand 's arguments using the more precise
standards reflected in the covered agreements and WTO jurisprudence.
7.210. In this connection, and as already noted above, the Panel identified three distinct questions
raised by Thailand 's ripeness arguments: (1) whether the Charges were a distinct measure for
purposes of WTO dispute settlement; (2) whether the Charges constituted a "determination" for the
purposes of the CVA; and (3) whether the Panel could make findings on the WTO-consistency of the
Charges without engaging in speculation as to when or how the ongoing criminal proceedings before
the Criminal Court would be concluded, and without issuing abstract rulings on hypothetical future
measures. The Panel then addressed Thailand's ripeness argument by answering these questions.
7.211. In this second recourse to Article 21.5, Thailand couches its argument in terms that are
divorced from the analytical framework developed by the Panel in the first recourse to Article 21.5.
Thailand appears t o reframe the same issue in terms of whether or not there is "insufficient
information" contained "in" or "concerning" the 2002 -2003 Charges to allow the Philippines to
identify the "precise content" of that measure in order to "make a prima facie case". In its written
submissions, Thailand employs variable terminology when developing this argument. As noted,
Thailand sometimes states that there is insufficient informa tion "in" the Charges, and sometimes
formulates its argument in terms of there being insufficient information concerning the facts
underlying the Charges. Thailand sometimes states that there has been no "determination"403 of the
facts, and in other instance s states that the factual circumstances surrounding the 2002 -2003
Charges which underpin the Philippines ' claims and arguments have not been "confirmed" by the
Criminal Court. These appear to be alternative ways of formulating the proposition that the Charges
do not amount to, and no Thai court or agency has yet made, any "determination" of the relevant
facts, and thus the Charges do not constitute a "determination" for purposes of the CVA. The Panel
also observe s that, unlike its argumentation in the first recourse to Article 21.5, Thailand 's
arguments in this second recourse to Article 21.5 are formulated in a manner that stresses the well-
established concepts of "a prima facie case" and the impermissibility of the Panel conducting a
"de novo review".
7.212. The Panel appreciates that Thailand's arguments in this second recourse to Article 21.5 and
its arguments in the first recourse to Article 21.5 are not, in terms of form, expressed in an identical
manner. Indeed, Thailand appears to have gone to some lengths to formulate its arguments in this
proceeding in a manner that is divorced not only from the analytical framework developed by the
Panel in the first proceeding, but also from the manner in which Thailand formulated its own
arguments in that proceeding. Indeed, the Panel notes that there is not a single reference to
"ripeness" in Thailand's submissions in this proceeding. However, a careful examination of both sets
of arguments leads us to conclude that the substance of Thailand 's argument that the 2002 –2003
Charges do not contain sufficient factual information to allow the Philippines to make a prima facie
case of inconsistency raises in essence the same issues raised by the "ripeness" argument advanced
by Thailand in relation to the 2003–2006 Charges, and already addressed – in considerable detail –
by the Panel in the first recourse to Article 21.5. In other words, the Panel does not consider that
Thailand has developed a subst antively novel legal argument different in substance from its
"ripeness" argument made in the first recourse to Article 21.5.
7.213. The Panel considers the similarity between Thailand 's arguments in the first recourse to
Article 21.5 and its arguments in this second recourse to Article 21.5 to lie in the fact that both sets
of arguments fundamentally rest on the same premise, that is, Thailand 's assertion that until the
Charges have been addressed by the Criminal Court and a judgment has been issued, the C harges
may not be the subject of an examination of WTO-consistency by a panel. As the Panel understands
it, in both the first recourse to Article 21.5 and now in this second recourse to Article 21.5, Thailand
posits that the existence of pending criminal proceedings, or the lack of a judgement by the Criminal
Court, constitutes a bar to the Panel 's examination of the Charges. In the first recourse to Article
21.5, Thailand argued that, absent a judgment by the Criminal Court the 2003 –2006 Charges
themselves remained merely an "allegation" of criminal conduct and therefore "a WTO panel has no
basis on which to evaluate the outcome of the matter at this point ".404 In this second recourse to
Article 21.5, Thailand maintains that there has been no "determination" of the facts underlying the

403 See e.g. Thailand's first written submission, paras. 3.2, 3.31, 3.37-3.38, and 3.40.
404 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.561 (referring to
Thailand's first written submission, para. 6.73).

Philippines' claims, and that the "factual assertions " contained in the 2002 -2003 Charges thus
remain "unconfirmed", insofar as they have not been addressed by Thailand's Criminal Court, which
ultimately results in the Charges l acking enough information to identify the precise content of any
conduct that could be declared WTO-consistent or WTO-inconsistent.405
7.214. Additionally, the Panel sees a further point of similarity between Thailand's arguments in the
first recourse to Article 2 1.5 and Thailand 's arguments in this second recourse to reside in the
consequences that Thailand claims would result from the panel examining the Charges. As will be
recalled, in the first recourse to Article 21.5, Thailand argued that the "Philippines [was] seeking an
abstract ruling on hypothetical future measures"406 and that if a panel were to adjudicate the CVA-
consistency of the C harges it would be "put[ting] itself in the place of a domestic tribunal and
mak[ing] a determination that is within the jurisdiction of that tribunal before the tribunal itself has
a chance to make its ruling ".407 In the current proceeding, by claiming that examining the CVA -
consistency of the 2002 -2003 Charges would result in the Panel "making predictions about the
outcome of the Criminal Court's assessment of the facts"408 and "substituting its judgment for that
of the Thai Criminal Court "409, Thailand appears to be reiterating in very similar terms the same
argument that it raised in the first recourse to Article 21.5.
7.215. Thailand's argument that there is "insufficient information" contained in, or concerning, the
2002-2003 Charges also seems to prompt the same question that the Panel asked Thailand to clarify
in the first recourse to Article 21.5 in relation to its "ripeness" argument. In the first recourse to
Article 21.5, the Panel asked Thailand to clarify whether it was arguing that the 2003-2006 Charges
did "not contain sufficient information to discern exactly what is being alleged and exactly what are
the grounds for that allegation, such that there is not sufficient information in the content of the
Charges to assess their consistency with the CVA, and in that sense the Charges are not "ripe" for
adjudication". In response, Thailand first specified that it was rather arguing that the making of an
allegation of possible customs fraud cannot be ripe for adjudication by a WTO panel before all of the
evidence has been heard and there has been a determination by the criminal court that fraud actually
took place, and Thailand then clarified that it was not arguing that the 2003-2006 Charges contained
insufficient information to discern the grounds for the accusation of customs fraud.410
7.216. In this second recourse to Article 21.5, Thailand has framed its argumentation in terms that
could be construed that it is now making that argument with respect to the 2002-2003 Charges (i.e.
"insufficient information " to discern what is being alleged and the grounds for that allegation).
Indeed, the Philippines appeared to construe Thailand's argument to be that, in the absence of an
adequate explanation of the basis for the customs valuation determination, the Philippines cannot
make its case. 411 More specifically, i n its second written submission, the Philippines understood
Thailand to be making the argument that there is a lack of explanation in the 2002-2003 Charges
that makes it impossible to discern exactly what is being alleged in the Charges , and exactly what
are the grounds for that allegation , such that the Philippines cannot make a prima facie case.
Furthermore, in its responses to the first set of questions posed by the Panel, Thailand states that
its argument that "because of the absence of sufficient information, the [20]02-[20]03 Charges do
not contain sufficiently clear information on which to conclude that the Public Prosecutor acted in a
WTO-inconsistent manner" stands in "contrast[] with the 03-06 Charges that were challenged in the
first compliance pr oceedings, which the Panel found to contain sufficient information to be
adjudicated under the CVA".412
7.217. The Panel notes, however, that in its second written submission Thailand clarifies that the
Philippines' inability to make a prima facie case does not hinge on any alleged "absence of an
explanation" in the 2002-2003 Charges and that the 2002-2003 Charges do contain an explanation

405 Thailand's first written submission, paras. 3.37, 3.38, and 3.41.
406 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.562 (referring to
Thailand's first written submission, para. 6.81).
407 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.562 (referring to
Thailand's opening statement at the meeting of the Panel, paras. 27-28).
408 Thailand's first written submission, para. 3.41.
409 Thailand's first written submission, para. 3.39.
410 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.604 (referring to
Thailand's response to Panel question No. 100(a), p.26).
411 Philippines' second written submission, paras. 298-300.
412 Thailand's response to Panel question No. 135, para. 3.11.

as to the reasons and facts that support the decision to bring criminal charges against PMTL. 413
According to Thailand, the reason for bringing criminal charges against PMTL is the rejection by the
Thai authorities of PMTL's declared transaction values ba sed on a comparison of those values with
an "actual price", which was calculated using pricing and cost information contained in the CK-21A
forms.414 On this basis, the Panel once again does not understand Thailand to be arguing that there
is insufficient information in, or concerning, the 2002-2003 Charges to discern exactly what is being
alleged, and exactly what are the grounds for that allegation. Therefore, the Philippines ' argument
concerning the lack of explanation in the 2002 -2003 Charges would appear to be a rebuttal to an
argument that Thailand is not making.
7.218. Based on the foregoing , the Panel's analysis proceeds on the understanding that Thailand
accepts that there is sufficient factual information regarding the allegation that is made in the 2002-
2003 Charges, and the basis for that allegation. Specifically, the allegation is that PMTL evaded the
payment of customs duties owed by declaring a "false price" which was lower than the "actual price",
and the basis for that allegation was the determination of the "actual price" on the basis of the
information reported by PM Indonesia to the Indonesian excise tax authorities in the CK-21A form.
7.219. Accordingly, considering that Thailand 's arguments in this proceeding are essentially the
same as Thailand 's arguments in the first recourse to Article 21.5, the Panel will follow the same
analytical framework that it developed an d applied in the first recourse to Article 21.5 and assess
Thailand's arguments by analysing the following three questions: (1) whether the 2002-2003
Charges are a distinct measure for purposes of WTO dispute settlement; (2) whether the 2002-2003
Charges constitute a "determination" for the purposes of the CVA; and (3) whether the Panel can
make findings on the WTO -consistency of the 2002-2003 Charges without engaging in speculation
as to when or how the ongoing criminal proceedings before the Criminal Court would be concluded,
and without issuing abstract rulings on hypothetical future measures. The Panel will examine these
questions in in the same order as they are addressed in the Report i n the first recourse to
Article 21.5.
7.3.2.3.2 Existence of a distinct measure
7.220. In the first recourse to Article 21.5, the Panel explained that "any act or omission attributable
to a WTO Member can be a measure of that Member for purposes of dispute settlement proceedings"
and Thailand did not dispute that the 2003–2006 Charges were a "measure" within the meaning of
Article 6.2.415 Thailand, however, contended that because the Charges were not a "distinct" measure,
or were inseparable, from the rest of the criminal proceedings that were triggered by the Charges,
they could not be analysed separately or in isolation from those proceedings. The Panel
acknowledged that the DSI investigation, the Charges, the subsequent crimin al proceedings, and
the eventual outcome of those proceedings could all be said to "form part of a continuum of events
and measures that are all inextricably linked".416 The Panel, however, concluded that the 2003-2006
Charges had their own direct legal cons equences, which made them "'operate' in 'some concrete
way in [their] own right' as 'an instrument with a functional life of its own'" and with an "autonomous
status".417
7.221. The Panel held that the 2003 -2006 Charges had the direct legal consequences of: (1 ) the
accused becoming subject to the mandatory jurisdiction of the criminal court; (2) the accused being
required to appear before the court to answer the Charges and attend the hearin gs relating to the
Charges; (3) the accused having to apply for and pay bail to secure temporary release during the
proceedings; (4) the accused having an officially recorded indictment and accusations; and ( 5) the
accused having to pay the costs of a defence for criminal proceedings. Finally, the Panel noted that
the Charges exposed the accused to negative reputational effects.418

413 Thailand's second written submission, paras. 3.45-3.46.
414 The Panel has examined the manner in which the Thai authorities relied on the CK-21A information
to determine the "actual price" above, in Section 7.2 (The Thai authorities' reliance on the information in the
CK-21A forms).
415 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.576-7.577.
(referring to Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 81).
416 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.581.
417 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.580.
418 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.580.

7.222. The Panel notes that while Thailand argues that there has been no "determination" of
whether the alleged facts concerning the 2002-2003 Charges took place, and consequently that the
Philippines is precluded from identifying the "precise content" of any measure that could be found
to be WTO -inconsistent, Thailand does not explicitly rei terate its argument that the Charges are
inseparable from the rest of the criminal proceedings including the outcome of the criminal
proceedings. In its written submissions, Thailand clarified that it is not arguing that there is no
"measure" in the sense of Article 6.2. In this connection, it may be noted that in the context of the
first recourse to Article 21.5, Thailand stated that it never disputed that the 2003 -2006 Charges
were a "measure". However, Thailand nonetheless argued that the fact that the 2003-2006 Charges
were a "measure" did not mean that they could be analysed as a measure distinct from the
proceedings that they triggered.
7.223. In the Panel's view, an objective comparison between the 2002-2003 Charges and the 2003-
2006 Charges reveals that nothing in their nature or in their substance would prima facie distinguish
the two sets of Charges for the purposes of the Panel's assessment of whether they constitute a
distinct measure for purpose of WTO dispute settlement. Both sets of Charges were issu ed
subsequent to, and on the basis of, recommendations resulting from a criminal investigation by the
DSI; both sets of Charges allege the violation by PMTL of Section 27 of the Customs Act; and both
sets of Charges were filed by the same state organ, i.e. the Public Prosecutor, and were accepted
and issued by the same judicial body, the Criminal Court. Given that the 2002 –2003 Charges are
similar in nature and substance to the 2003 –2006 Charges, it then follows that the 2002 –2003
charges also entail the same legal consequences which, as explained in the first recourse to Article
21.5, give them the status of an "autonomous" instrument that "operates" in "some concrete way
in its own right" vis-à-vis the remaining steps or actions in the criminal proceedings , including the
final ruling by the Criminal Court.
7.224. Additionally, Thailand has not identified any basis for distinguishing the 2002-2003 Charges
from the 2003-2006 Charges in the Panel's assessment of whether the Charges constitute a distinct
measure for purpose of WTO dispute settlement . With a view to clarifying Thailand 's position, the
Panel asked Thailand whether it accepts that the 2002-2003 Charges constitute a distinct measure,
and if not, whether Thailand could identify any basis for distinguishing the 2002-2003 Charges from
the 2003-2006 Charges so as to allow the Panel to find, without contradicting its prior findings
regarding the 2003 -2006 Charges, that the 2002 -2003 Charges are not a distinct measure for
purposes of WTO dispute settlement. In response, Thailand merely restates that its arguments with
respect to the 2002-2003 Charges are different from the arguments it made in relation to the 2003-
2006 Charges in the first recourse to Article 21.5, and urges the Panel not to address Thailand's
arguments in these compliance proceedings "through prism of the same three questions it analysed
Thailand's ripeness argument in the first compliance proceedings".419 For the reasons already stated,
the Panel disagrees.
7.225. Thus, based on the foregoing the Panel concludes that the 2002-2003 Charges, like the
2003-2006 Charges at issue in the first recourse to Article 21.5, constitute a distinct measure for
purposes of WTO dispute settlement. The Panel hereby incorporates by reference the reasoning in
Section 7.3.4.3.2 (Existence of a distinct 'measure') of the Panel Report in the first recourse to Article
21.5.
7.3.2.3.3 Existence of a determination for purposes of the CVA
7.226. The Panel recalls that in the first recourse to Article 21.5, Thailand argued that because the
2003-2006 Charges were "a mere accusation of wrong -doing, they [did] not represent a customs
valuation 'determination' for the purposes of the CVA ". Among other things, Thailand argued that
the 2003-2006 Charges did not meet the threshold of a "determination" in the ordinary sense of the
term, one dictionary definition of which is "the settlement of a suit or controversy by the authoritative
decision of a judge or arbiter ".420 In responding to Thailand 's a rgument the Panel anchored its
reasoning in the consistent line of cases interpreting the term "determination" by the Appellate
Body.421 On this basis, the Panel reasoned that the Charges represented "the determinate opinion"

419 Thailand's response to Panel question No. 135, para. 3.13.
420 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.586 (referring to
Thailand's responses to Panel question No. 38(b) and (c)).
421 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.591.

or "determinate conclusion " of the Public Prosecutor 422, and the "final decision ", and not a
"provisional" or "intermediate" step, "arrived at" again by the Public Prosecutor, that PMTL acted in
violation of Section 27; and for the purpose of prosecuting an offence under Section 27, the issuance
of the Charges constitutes a "determination".423 The Panel therefore concluded that the 2003-2006
Charges constituted a "determination" for purposes of the CVA.
7.227. In this second recourse to Article 21.5, Thailand appears to raise a similar line of argument.
Specifically, Thailand repeatedly couches its argumentation in terms of the absence of a
"determination" of the facts. Thus, Thai land variously states that the Philippines cannot sustain its
claim that, through 2002-2003 the Charges, "Thailand has made a 'determination' of customs value
when it has merely initiated a process to determine whether customs fraud took place"424, and that
"one cannot expect that the criminal charges will contain final determinations of the factual
circumstances".425
7.228. In the Panel's view, an objective comparison between the 2002-2003 Charges and the 2003-
2006 Charges reveals that nothing in their nature or in their substance would prima facie distinguish
the two sets of Charges for the purposes of assessing of whether they involve a "determination" for
the purposes of the CVA. As the Panel has outlined above, the nature and substance of the 2002 -
2003 Charges resemble those of the 2003-2006 Charges.426 Like the 2003-2006 Charges in the first
recourse to Article 21.5, the Panel considers that the 2002-2003 Charges, too, represent the "final
decision" or "determinate conclusion", and not an intermediate act, by the Public Prosecutor that
PMTL acted in violation of Section 27 of the Customs Act. This "final decision" by the Public Prosecutor
is taken for the purpose, and with the clear intention, of triggering criminal proceedings aimed at
prosecuting an offence under Section 27. Although Thailand clarifies that these facts will
subsequently have to be clarified or confirmed by the Thai Criminal Court, the Panel does not see
this subsequent step by the Criminal Court as attenuating the prior distinct "determination" by the
Public Prosecutor that PMTL has contravened Section 27 and the ensuing decision to file charges in
order to prosecute this offence.
7.229. Furthermore, the Panel notes that Thailand in its submissions does not point to any fact that
would serve as a basis for distinguishing the 2002 -2003 Charges from the 2003-2006 Charges for
purposes of assessing whether the Charges constitute a "determination" for purpose of the CVA .
With a view to clarifying Thailand 's position, the Pa nel asked Thailand whether it accepts that the
2002-2003 Charges constitute a "determination", and if no t, whether Thailand could identify any
basis for distinguishing the 2002-2003 Charges from the 2003-2006 Charges so as to allow the Panel
to find, witho ut contradicting its prior findings regarding the 2003 -2006 Charges, that the 2002 -
2003 Charges are not a "determination" for purposes of the CVA. In response, Thailand merely
restates that its arguments with respect to the 2002-2003 Charges are different from the arguments
it made in relation to the 2003 -2006 Charges in the first recourse to Article 21.5, and urges the
Panel not to "address Thailand's arguments in these compliance proceedings through prism of the
same three questions it analysed Thailand 's ripeness argument in the first compliance
proceedings".427 For the reasons already stated, the Panel disagrees.
7.230. Based on the foregoing, the Panel considers that the 2002-2003 Charges, like the 2003 -
2006 Charges at issue in the first recourse to Article 21.5, constitute a "determination" for purposes
of the CVA. The Panel hereby incorporates by reference the reasoning in Section 7.3.4.3.3 (Existence
of a "determination" for purposes of the CVA) of the Panel Report in the first recourse to Article 21.5.
7.3.2.3.4 Speculation on future measures or events
7.231. In the first recourse to Article 21.5, Thailand argued that "panels should not engage in
exercises in speculation to predict either when or how a matter before it may be concluded and

422 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.590.
423 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.595.
424 Thailand's first written submission, para. 3.31.
425 Thailand's first written submission, para. 3.37. (emphasis added)
426 As already noted above, both sets of Charges were issued subsequent to, and on the basis of,
recommendations resulting from a criminal investigation by the DSI; both sets of Charges allege the violation
by PMTL of Section 27 of the Customs Act; and both set of Charges were filed by the same state organ, i.e. the
Public Prosecutor, and were accepted and issued by the same judicial body, the Criminal Court.
427 Thailand's response to Panel question No. 135, para. 3.13.

should not issue abstract rulings on hypothetical future measures", such as the outcome of pending
criminal proceedings, and that "an abstract ruling on hypothetical future measures is not necessary
nor helpful to the resolution of this dispute".428 While the Panel agreed with the general proposition
that panels should not engage in such speculation, the Panel considered that in the circumstances
of that case, it would not need to engage in speculation on future measures or events in order to
make findings on the WTO -consistency of the 2003-2006 Charges because the Charges were "a
defined and formal act, taken by an organ of the Thai Sate, on a date certain in the past " and an
assessment of the content and meaning of the Charges did "not necessitate" making "predictions
about events or measures taken subsequent to the issuance of the Charges on 18 January 2016".429
7.232. In this second recourse to Article 21.5, Thailand appears to be reiterating the same
argument, in almost identical terms, when it states that examining the CVA-consistency of the 2002-
2003 Charges would force the Panel to make predictions about the outcome of the Criminal Court's
assessment of the facts .430 However, in its submissions, Thailand asserts that this is so, without
engaging at all with the Panel's prior analysis of this point, and without elaborating on why or how
an assessment of the content and meaning of the 2002-2003 Charges would necessitate making
predictions about events or measures taken subsequent to the issuance of the Charges.
7.233. In the Panel's view, an objective comparison between the 2002-2003 Charges and the 2003-
2006 Charges reveals that nothing in their nature or in their substance w ould prima facie serve to
distinguish the two sets of Charges for the purposes of assessing whether an examination of the
Charges would necessarily require speculating about future events or measures. In these
circumstances, the Panel considers, as it did in relation to the 2003 -2006 Charges, that the 2002-
2003 Charges are a "defined and formal act, taken by an organ of the Thai state, on a date certain
in the past ", an act which was completed on the day the 2002 -2003 Charges were issued, i.e.
26 January 2017 and which is "distinct" from the subsequent criminal court proceedings or their
outcome. Furthermore, the Panel sees no indication in the Philippines' arguments that would suggest
that the Philippines is relying on events or measures subsequent to the C harges to establish the
WTO-inconsistency of the Charges. Bearing these considerations in mind, the Panel holds the view
that an assessment of the content and meaning of the 2002-2003 Charges does not necessitate that
it make predictions about events or measures taken subsequent to the issuance of the Charges.
7.234. Additionally, Thailand does not appear to raise, in its submissions, any basis for
distinguishing the 2002-2003 Charges from the 2003-2006 Charges in this respect. With a view to
clarifying Thailand's position, the Panel asked Thailand whether there is any basis for the Panel to
distinguish the 2002-2003 Charges from the 2003 -2006 Charges so as to allow the Panel to find,
without contradicting its prior findings regarding the 2003-2006 Charges, that the Panel cannot rule
on the WTO -consistency of the 2002 -2003 Charges without engaging in speculation on future
measures or events. In response, Thailand merely restates that its arguments with respect to the
2002-2003 Charges are different from the arguments it made in relation to the 2003-2006 Charges
in the first recourse to Article 21.5, and urges the Panel not to address Thailand's arguments in
these compliance proceedings "through prism of the same three questions it analysed Thailand 's
ripeness argument in the first compliance proceedings".431 For the reasons already stated, the Panel
disagrees.
7.235. On the basis of the foregoing, the Panel considers that, as was the case with respect to the
2003-2006 Charges at issue in the first recourse to Article 21.5, it can make findings on the WTO-
consistency of the 2002-2003 Charges without engaging in speculation on future measures or
events. The Panel hereby incorporates by reference the reasoning in Section 7.3.4.3.4 (Speculation
on future measures or events) of the Panel Report in the first recourse to Article 21.5.
7.3.2.3.5 The issues of making a prima facie case and conducting a de novo review
7.236. As already explained, in this second recourse to Article 21.5 Thailand seeks to reframe the
issue in terms of whether there is "insufficient information" contained "in" or "concerning" the 2002-
2003 Charges to allow the Philippines to "make a prima facie case" by identifying the "precise

428 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.598 (referring to
Thailand's first written submission, paras. 6.64 and 6.70).
429 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.604.
430 Thailand's first written submission, para. 3.41.
431 Thailand's response to Panel question No. 135, para. 3.13.

content" of that measure. Thailand's arguments are formulated in a manner that stresses the well-
established concepts of "a prima facie case" and the impermissibility of the Panel conducting a
"de novo review".
7.237. Based on the Panel 's reading of Thailand 's submissions, it appears that the fundamental
premise at the root of Thailand 's argument is that the 2002 -2003 Charges do not constitute a
"determination" for purposes of the CVA. For instance, Thailand states that "the 2002-2003 Charges
do not constitute a final determination regarding PMTL's customs values, and therefore, their content
cannot yet reflect any WTO -inconsistent conduct"432; and that, through the 2002 -2003 Charges,
Thailand has merely initiated "a process to determine whether the customs fraud took place" rather
than "a determination of customs value".433 In developing this argument, Thailand clarifies that the
Charges do not contain "final determinations of the factual circumstances" and this means that, at
present, there is not enough information to identify the "precise content" of any conduct that could
be declared WTO -consistent or WTO -inconsistent.434 According to Thailand, it follows from the
absence of any such "determination" that if the Panel were to rule on the Philippines ' claims
concerning the 2002-2003 Charges, the Panel would necessarily conduct an impermissible "de novo
review" as the Panel "would have to examine facts and to reach conclusions, specifically, as to
whether customs fraud took place even before a Thai court has made this determination".435
7.238. Therefore, it appears that the essence of Thailand 's argumentation is premised on the
proposition that because there is no ruling of the Criminal Court, and hence no confirmation of the
factual matters, there can be no "determination".436 While Thailand seeks to reframe the issue in
terms of the Philippines ' ability to make "a prima facie case" and the impermissibility of the Panel
conducting a "de novo review", its arguments in connection with those concepts appear to be
inextricably linked to the premise that the Charges do not reflect, or entail, any customs valuation
"determination". The Panel already concluded above that the 2002 -2003 Charges do constitute a
"determination" for purposes of the C VA. Accordingly, even if the Panel reframed the issue in the
manner suggested by Thailand, the outcome would be no different: the Panel would find, as a result
of the 2002 -2003 Charges constituting a "determination", that there is "sufficient information "
contained "in" or "concerning" the 2002-2003 Charges to allow the Philippines to "make a prima
facie case" by identifying the "precise content" of that measure, and that the Panel can rule on the
WTO-consistency of the Charges without engaging in an impermissible "de novo review".
7.239. Having said this, the Panel sees no reason to reframe the issue in terms of whether there is
"insufficient information " contained "in" or "concerning" the 2002 -2003 Charges to allow the
Philippines to "make a prima facie case" by identifying the "precise content" of that measure, or in
terms of the Panel engaging in "de novo review". As explained at the outset 437, the Panel sees a
potential for confusion if it were to present its analysis and conclusions in terms different from those
of the Panel Report in the first recourse to Article 21.5, insofar as it is confronted with the same or
similar issues raised in the first recourse to Article 21.5.
7.3.2.4 Conclusion
7.240. For the reasons set forth above, the Panel find s, as it did in relation t o the 2003 -2006
Charges in the first recourse to Article 21.5, that it is not precluded from considering the WTO -
consistency of the 2002 -2003 Charges, because they constitute a distinct "measure" for purposes
of WTO dispute settlement, they constitute a "determination" for purposes of the CVA, and because

432 Thailand's first written submission, para. 3.2; and second written submission, para. 3.40. (emphasis
added)
433 Thailand's first written submission, para. 3.31. (emphasis added)
434 Thailand's first written submission, paras. 3.37-3.38. (emphasis added)
435 Thailand's second written submission, para. 3.40. (emphasis added)
436 Thailand further explains that the Philippines' claim that the cost information reported to the
Indonesian authorities by PM Indonesia cannot be used by Thailand for customs valuation purposes is a
"factual assertion" or "factual matter" that has not been "addressed" or "resolved" by Thailand's Criminal
Court, and therefore remains "unexamined" and "unconfirmed" or that the "veracity" or "reliability" of the
factual assertions underpinning the Philippines' claim can only be confirmed by way of a ruling of the Criminal
Court. (Thailand's first written submission, paras. 3.36 and 3.41) The Panel understands this "confirmation" of
the factual assertions to be the "determination" that is lacking in the Charges, the absence of which, in the
view of Thailand, makes it impossible to identify the precise content of any conduct that could be declared
WTO-consistent or WTO-inconsistent.
437 See Section 7.1.2.2 (Reliance on the Report in the Philippines' first recourse to Article 21.5).

an assessment of the WTO -consistency of the Charges does not require the Panel to engage in
speculation on future measures or events, notwithstanding that no judgment has been rendered by
the Cri minal Cour t. Reframing the issue in terms of whether there is "insufficient information "
contained "in" or "concerning" the 2002-2003 Charges to allow the Philippines to "make a prima
facie case" by identifying the "precise content" of that measure, or whether an as sessment of the
WTO-consistency of the Charges would require the Panel to engage in a "de novo review" would not
change the outcome.
7.3.3 Applicability of the CVA to the Charges
7.3.3.1 Introduction
7.241. Articles 1 through 7 of the CVA provide for methods of determining the customs value of
imported goods. Article 15.1(a) of the CVA defines the "customs value of imported goods " as "the
value of goods for the purposes of levying ad valorem customs duties on imported goods". As with
the 2003-2006 Charges at issue in the first recourse to Article 21.5, the 2002-2003 Charges filed by
the Public Prosecutor set forth the allegation that PMTL violated Section 27 of the Customs Act by
declaring a "false price" for Marlboro and L&M cigarettes contrary to the "actual price", with the
intention to defraud the government of taxes and customs duties. Pursuant to Section 27 of the
Customs Act, the penalties upon conviction may include the imprisonment of one of PMTL 's former
employees, and the payment of fines by PMTL.
7.242. In the first recourse to Article 21.5, Thailand argued that the CVA was inapplicable to the
2003-2006 Charges. Thailand argued th at this was the case because: ( 1) the CVA only applies to
measures taken by a "customs administration", which the Public Prosecutor is not a part of; (2) the
2003-2006 Charges did not satisfy the first element of the definition of "customs valuation " in
Article 15.1(a) of the CVA, as they did not determine "the value of goods " imported by PMTL and
the references to the "actual prices" contained in the Annex to the 2003-2006 Charges only served
to establish a possible benchmark for a fine in the event of a conviction for customs fraud; ( 3) the
Charges did not satisfy the second element of the definition of "customs valuation" in Article 15.1(a),
as they were not "for purposes of levying ad valorem duties"; and (4) allegations under Section 27
of the Customs Act have at their core the element of an "intention to defraud " the government,
which is neither found nor regulated in Articles 1 through 7 of the CVA.
7.243. The Panel individually addressed each of these arguments in its Report in the first recourse
to Article 21.5.438 For the detailed reasons set forth in its Report, the Panel concluded that: (1) "the
obligations in Articles 1, 2 and 3 of the CVA invoked by the Philippines in this case apply to any
organ of the state that makes a 'customs valuation' determination", and it was therefore "unable to
agree with Thailand that the CVA is inapplicable to the Charges on the grounds that they were issued
by the Public Prosecutor, which is not a part of the 'customs administration'"439; (2) the 2003-2006
Charges did determine "the value of goods" imported by PMTL, finding that "[b]ased on … the plain
meaning of the Charges and their Annex, … the Charges 'fix or determine the monetary value of
PMTL's imported cigarettes' for the purpose of customs valuation, and that they do so on the basis
of King Power's prices"440; (3) the Public Prosecutor's determination of the monetary worth or price
of PMTL's imported goods for the purpose of determining the amount of the ad valorem customs
duties that should have been levied on these goods, in the context of an allegation that PMTL
declared false prices in order to evade customs duties, suffice d to establish that this valuation was
made "for the purposes of levying ad valorem customs duties on imported goods"441; and (4) in line
with the Appellate Body 's analysis in US – 1916 Act, the obligations in Articles 1 to 7 of the CVA
applied to the customs valuation aspect of the Charges, despite the fact that the measure at issue
included an additional aspect not regulated by the CVA, i.e. the "intention to defraud".442

438 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), Section 7.3.5
(Applicability of the CVA to the Charges).
439 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.644. The Panel
added that "[h]aving reached that conclusion, we consider it unnecessary to reach any definitive conclusion on
the scope of the term 'customs administration'".
440 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.664.
441 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.762.
442 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.683

7.244. In this second recourse to Article 21.5, t he Philippines submits that the CVA a pplies to the
2002-2003 Charges.443 It maintains that the 2002 -2003 Charges and their Annex, like the 2003-
2006 Charges and their Annex, determine the monetary value of PMTL 's imported goods for the
purposes of calculating the amount of ad valorem customs duties due on those goods in the sense
of Article 15.1(a) of the CVA.444
7.245. Thailand argues that the CVA does not apply to the 2002 -2003 Charges. 445 The Panel
understands Thailand to argue that: (1) the CVA is inapplicable to the 2002-2003 Charges because
the Public Prosecutor is not a part of Thailand 's "customs administration"446; (2) the 2002 -2003
Charges do not satisfy the first element of the definition of "customs valuation" in Article 15.1(a) of
the CVA, because the reference to the "actual price" in the 2002-2003 Charges is to be understood
as merely establishing an approximate value of the goods made in the context of setting out the
accusation that PMTL's declared price is not the price actually paid, and merely identifying a possible
benchmark for a fine 447; (3 ) the 2002 -2003 Charges do not satisf y the second element of
Article 15.1(a), because they ar e not "for purposes of levying ad valorem duties"448; and ( 4) the
Appellate Body' findings in US -1916 Act do not support the conclusion that the CVA applies to
measures that have, as their core element, the "intention to defraud" the government.449
7.3.3.2 Main arguments of the parties
7.246. Thailand argues that the CVA does not apply to the 2002-2003 Charges because the Public
Prosecutor is not part of Thailand's "customs administration". Thailand reiterates its argument, made
in the first recourse to Article 21.5, that the disciplines of the CVA apply only to WTO Members '
"customs administration ", and recalls that the CVA "contains multiple references to 'customs
administration' when explaining the organ of the state to which CVA disciplines apply ".450 Thailand
incorporates its arguments from the first compliance proceeding451, and emphasizes that the Revised
Kyoto Convention of the World Customs Organization (WCO) provides a definition of "Customs"
which confirms that entities responsible for enforcing criminal offences, such as the Public
Prosecutor, are not considered part of "customs".452 Thailand also refers to a letter from t he WCO
Secretariat to Thailand dated 6 July 2018 that, in Thailand's view, confirms that the Public Prosecutor
is not a part of the "customs administration".453
7.247. Thailand argues that the 2002-2003 Charges do not determine "the value of goods" imported
by PMTL in the sense of the first element of Article 15.1(a). Thailand recalls that at paragraph 7.649
of its Report in the first recourse to Article 21.5, the Panel stated, in the context of determining
whether the 2003-2006 Charges involved a determination of "the value of goods" imported by PMTL,
that the Panel would have been inclined to agree with Thailand and answer that question in the
negative if Thailand had been able to substantiate "its interrelated assertions that the Charges allege
customs fraud based on a determination that the price that PMTL declared to have paid to PMPMI
was not the actual price that was paid to PMPMI, and that the references to King Power 's prices in
the Annex merely serve as a possible benchmark for the purposes of a fine and not as a basis for
determining the actual customs value of PMTL 's imported goods ". In its first written submission,
Thailand argues that in this case, the 2002-2003 Charges accuse PMTL of declaring an import value
that is not the price actually paid b y the buyer to the seller, and therefore constitute the kind of
"customs fraud" that the Panel in the first recourse to Article 21.5 said , at paragraph 7.6 49 of its

443 Philippines' second written submission, paras. 211-289.
444 Philippines' first written submission, paras. 380-410; second written submission, paras. 265-289;
opening statement at the meeting of the Panel, paras. 30-58.
445 Thailand's first written submission, paras. 3.4-3.25; second written submission, paras. 3.3-3.39;
opening statement at the meeting of the Panel, paras. 3.1-3.23.
446 Thailand's first written submission, paras. 3.4-3.9; second written submission, para. 3.3.
447 Thailand's first written submission, paras. 3.10-3.25; second written submission, paras. 3.4-3.39.
448 Thailand's opening statement at the meeting of the Panel, paras. 3.16-3.19.
449 Thailand's opening statement at the meeting of the Panel, para. 3.20.
450 Thailand's first written submission, para. 3.4.
451 Thailand's first written submission, para. 3.4 (referring to Thailand's first written submission in the
first compliance proceedings, para. 6.29; Thailand's response to Panel question No. 48).
452 Thailand's first written submission, paras. 3.5-3.7.
453 Thailand's second written submission, para. 3.3 (referring to a Communication from the World
Customs Organization to Thailand's Director of Customs Standards and Procedure Bureau, 6 July 2018,
(Exhibit THA-68)).

Report, that it was inclined to agree fell outside of the scope of application of the CVA. 454 In the
course of the proceeding, Thailand also developed other arguments on the first element of
Article 15.1(a), as elaborated below in paragraphs 7.286-7.287.
7.248. Thailand argue s that the 2002 -2003 Charges do not satisf y the second element of
Article 15.1(a) of being "for the purposes of levying ad valorem customs duties" because neither the
accusation nor the related penalty have any "direct repercussion" for455, or "direct connection" to456,
the amount of the ad valorem duties levied. Thailand disagrees with the Panel's finding, in the first
recourse to Article 21.5, that the terms "for the purposes of levying ad valorem duties" embrace
"any determination of the value of imported goods for the purpose of determining the amount of
ad valorem duties due".457 Thailand submits that, for a valuation measure to satisfy the second
element of Article 15.1(a), it cannot be an abstract determination of the amount of customs duties
that are "due" or that "should have been paid".458 Rather, the valuation measure "must be made for
the calculation of duties that are to be collected from the importer ".459 Thailand submits that the
approach taken by the panel in Colombia – Ports of Entry supports its narrower interpretation.460
Thailand notes, as examples of measures that entail a valuation of imported goods that are not
adopted with the purpose of levying ad valorem customs duties, risk assessment tools based on
reference values or minimum values and guarantees to secure the payment of customs duties
ultimately levied.461
7.249. The Philippines recalls that in the first recourse to Article 21.5, the Panel already carefully
considered and rejected Thailand's argument that the CVA did not apply to criminal charges because
they were issued by the Public Prosecutor, which is not part of Thaila nd's "customs
administration".462 The Philippines recalls the Panel's finding that the CVA applies to any government
entity that makes a customs valuation determination, as set forth in Article 15.1(a) of the CVA, and
submits that there is "no basis for Thailand's new argument that the CVA narrows the scope of the
term 'customs administration' using the definition of 'Customs' in the Revised Kyoto Convention".463
In this regard, the Philippines considers that "[a] WTO adjudicator cannot incorporate into a WTO
covered agreement a definition from a non-WTO treaty, without an appropriate textual basis in the
WTO agreement itself."464
7.250. With respect to the first element of Article 15.1(a), the Philippines maintains that the 2002-
2003 Charges and their Annex, like the 2003-2006 Charges and their Annex, fix or determine the
monetary value of PMTL's imported cigarettes, because they establish the alleged "actual" or "found"
price for each of the 780 entries, and compare the "declared" price against the higher "actual" price.
The Philippines points out that "every single substantive clause of the 02 -03 Charges refers to the
'actual' prices of the imported goods ", and that the "Annex similarly provides exact figures for the
'actual' or 'found' price for each of the 780 e ntries".465 In response to Thailand's assertion that the
2002-2003 Charges do not determine any customs value for the imported goods, the Philippines
submits that Thailand "entirely fails to explain the nature of the 'actual price' that it determined".466
In response to Thailand's repeated citation to the Panel 's statement that "an allegation of customs
fraud could be made without ever seeking to determine the customs value of the importer's goods",
the Philippines states that what this Panel's statement means is that "the fact that not all cases of
customs fraud involve a customs valuation determination subject to the CVA does not mean that the
CVA never applies to cases of fraud ".467 The Philippines raises several grounds for rejecting
Thailand's assertion that the Charges concern "customs fraud", and Thailand's initial assertion that
the references to the "actual price" in the Charges should be read as a reference to the "price actually

454 Thailand's first written submission, paras. 3.10-3.25.
455 Thailand's opening statement at the meeting of the Panel, paras. 3.16 and 3.19.
456 Thailand's response to Panel question No. 171(a), para. 6.27.
457 Thailand's opening statement at the meeting of the Panel, paras. 3.15-3.16.
458 Thailand's response to Panel question No. 171(a), para. 6.9.
459 Thailand's response to Panel question No. 171(a), para. 6.9.
460 Thailand's response to Panel question No. 171(a), paras. 6.4-6.10.
461 Thailand's opening statement at the substantive meeting of the Panel, paras. 3.16–3.18.
462 Philippines' second written submission, paras. 255-260.
466 Philippines' opening statement at the meeting of the Panel, para. 35.
467 Philippines' opening statement at the meeting of the Panel, para. 56.

paid or payable ".468 In any event, the Philippines argues th at even if the 2002 -2003 Charges are
understood as alleging "customs fraud" in the sense that PMTL's declared value was not the "price
actually paid or payable", this would constitute a customs valuation determination to which the CVA
would apply.469
7.251. As regards the second element of Article 15.1(a), the Philippines maintains that the 2002 -
2003 Charges and their Annex, like the 2003 -2006 Charges and their Annex, calculate exactly the
amount of taxes and ad valorem customs duties purportedly "underdeclared" and/or "underpaid" –
that is, "due" – on each entry. The Philippines observes that every single clause of the 2002 -2003
Charges refers to the "amount of tax and [ ad valorem customs] duty under customs law that the
two Defendants and others were liable to pay "470, and thus establish es the amount of ad valorem
duties that, to use the Panel 's words, "should have been collected " from the importer. 471 The
Philippines argues, in response to Thailand, that the Panel's interpretation of the words "for purposes
of levying ad valorem duties" does not lead to the consequence that risk assessment tools based on
reference values or minimum values, or guarantees to secure the payment of custom s duties
ultimately levied, constitute "customs valuation determinations " subject to the obligations in
Article 1 through 7.472
7.3.3.3 Analysis by the Panel
7.3.3.3.1 General considerations
7.252. As already indicated above, in the first recourse to Article 21.5, the Panel separat ely
addressed Thailand 's arguments concerning the non -applicability of the CVA based on: ( 1) the
agency that filed the Charges; (2) the meaning of the Charges; (3) the consequences of the Charges;
and (4) the "intention to defraud" aspect of the Charges. Before doing so, the Panel reviewed several
general considerations pertaining to the applicability of the CVA to criminal measures concerning
customs fraud which may be useful to recall for the purposes of the present case.
7.253. The Panel first observed that as a matter of treaty interpretation, the absence of treaty
language qualifying the scope of application of an obligation to a particular sphere of municipal law
suggests that the obligation may, in principle, apply to any measure taken in the context of a ny
sphere of municipal law, including criminal law. 473 The Panel then noted that previous dispute
settlement panels had reviewed the WTO -consistency of measures taken in the sphere of criminal
law, and set forth its understanding that those prior cases establish that "the legal framework to be
applied by a panel does not change when the measure at issue is adopted in the sphere of a Member's
criminal law".474
7.254. The Panel also observed that it was common ground between the parties that there is nothing
in the text of the CVA that prevents Members – developing or developed – from taking tough
enforcement measures against customs fraud.475 With regard to the concept of "customs fraud", the
Panel then explained that, in the context of customs valuation, the concept of c ustoms fraud
concerns the situation in which the customs value declared by the importer does not represent the
"price actually paid or payable".476 The Panel explained that this understanding of customs fraud is
consistent with Article 17 of the CVA 477; the "Decision of the Committee on Customs Valuation
adopted pursuant to the Ministerial Decision Regarding Cases Where Customs Administrations Have

468 Philippines' second written submission, paras. 276-286.
469 Philippines' opening statement at the meeting of the Panel, paras. 45-58.
472 Philippines' comments on Thailand's response to Panel question No. 171(a), paras. 189-198.
473 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.619.
474 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.620-622
(referring to Panel Report, US – 1916 Act, paras. 6.178-6.181; Panel Report, US – Gambling, paras. 6.499-
6.509, 6.515-6.533, and 7.3-7.4; Panel Report, China – Intellectual Property Rights, paras. 2.2, 7.500-7.501
and 7.669; Appellate Body Reports, China – Measures Affecting Automobile Parts, footnote 244; US – Softwood
475 The Panel notes the Philippines' agreement on this point. (See Philippines' comments on Thailand's
response to Panel question No. 75).
476 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.631.
477 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.624.

Reasons to Doubt the Truth or Accuracy of the Declared Value "478; paragraph 8.3 of the Doha
Ministerial Decision on Implementation-Related Issues of 14 November 2001 479; Article 1(c) of the
WCO's International Convention on Mutual Administrative Assistance for the Prevention,
Investigation and Repression of Customs Offences (the Nairobi Convention)480; and prior WTO case
law.481
7.3.3.3.2 The agency that filed the Charges
7.255. The Panel will begin by considering whether the Charges fall outside of the scope of the CVA
by virtue of the agency that issued them. More specifically, the question the Panel is called upon to
resolve is whether the CVA is inapplicable to the Charges because they were issued by an organ of
the State that is not part of the "customs administration" in the narrow sense of the term.
7.256. In the first recourse to Article 21.5, the Panel was likewise called upon to consider "whether
the CVA is inapplicable to the Charges because they were issued by an organ of the State that is not
part of the 'customs administration'".482 The Panel reasoned that "there would have to be a clear
and explicit indication in the text of the CVA limit ing its applicability to a narrow subset of
government officials to sustain Thailand 's interpretation", given both the customary international
law rules of State responsibility and broad concept of a challengeable "measure" that apply in the
context of WTO dispute settlement proceedings, and in light of the fact that none of the covered
agreements contains any general scope and coverage provision limiting its applicability to particular
government agencies within a Member.483 The Panel then found that there was no such indication in
the text of the CVA and noted the following: the absence of any general scope and coverage provision
in the CVA and the broad language of Article 19 484; the fact that the substantive CVA obligations
which were at issue (Articles 1.1, 1.2(a), second sentence, 2.1, and 3.1 of the CVA) use the passive
voice and are silent on who is applying the methodology485; the nature of the numerous references
in the text of the CVA to the "customs administration"486; and the fact that the consequences of
finding that the CVA only applies to customs valuation determinations made by the "customs
administration" would be inconsistent with the object and purpose of the CVA. 487 The Panel also
noted the fact that all third partie s that expressed a view on this point rejected Thailand 's
interpretation of the CVA.488
7.257. In the first recourse to Article 21.5, the Panel took no definite position on the precise
meaning of the term "customs administration", or on the question of whether the Public Prosecutor
is part of the "customs administration". The Panel did not take a position on those issues because it
rejected the underlying premise that the substantive CVA obligations invoked by the Philippines
apply only to those state organs that a re a part of the "customs administration". Specifically, the
Panel concluded that the substantive CVA obligations invoked by Philippines "apply to any organ of
the state that makes a 'customs valuation' determination", and was therefore "unable to agree with
Thailand that the CVA is inapplicable to the Charges on the grounds that they were issued by the
Public Prosecutor, which is not a part of the 'customs administration'".489 The Panel concluded its
analysis by stating that, having reached the conclusion th at it did, the Panel considered it
"unnecessary to reach any definitive conclusion on the scope of the term 'customs
administration'".490

478 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.625-7.626.
479 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.627-7.628.
480 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.629.
481 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.630.
482 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.633.
483 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.635-7.638.
484 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.638.
485 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.639-7.640.
486 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.641.
487 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.642.
488 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.643.
489 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.644.
490 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.644. The Panel
notes that it followed a consistent approach when it refrained from defining the terms "customs administration"
in the context of examining the Philippines' claims, regarding the BoA, under the procedural obligations in
Article 1.2(a), third sentence, and Article 16: in assessing the applicability of those procedural obligations to
the BoA, the Panel proceeded on the basis that the BoA is "formally part" of the Thai Customs Department, and

7.258. In this second recourse to Article 21.5, Thailand requests that the Panel re -examine the
same issue, and uphold Thailan d's argument that the CVA is inapplicable to the Charges because
they were issued by the Public Prosecutor, which is not a part of the "customs administration". In
support of its argument, Thailand states that it reiterates its arguments from the first recourse to
Article 21.5. It also sets forth two considerations that were not specifically addressed b y the Panel
in its reasoning. The Panel will begin by examining whether Thailand 's general and specific legal
arguments warrant the Panel reversing its prior findings and reasoning, or making additional findings
beyond those already set forth in the earlier Report. The Panel will then examine whether those
findings, which focused specifically on the substantive CVA obligations invoked by the Philippines in
the first recourse to Article 21.5, extend to the different set of CVA provisions at issue in this second
recourse to Article 21.5.
7.259. Beginning with Thailand's general arguments, Thailand states in its first written submission
that it "reiterates its argument made in the first compliance proceedings that the disciplines of the
CVA apply only to WTO Members ' 'customs administration '"491, and "incorporates into this
submission its arguments from the first compliance proceedings in this respect".492 The Panel already
addressed those arguments, in detail, in its Report in the first recourse to Article 21.5. In the absence
of any novel arguments that would warrant a re -examination of this issue by the Panel, nothing is
to be gained by the Panel setting forth its reasoning again, or restating its reasoning in diffe rent
terms. Accordingly, the Panel will not repeat the analysis that it already set forth in the first recourse
to Article 21.5, and summarized further above.
7.260. Therefore, the Panel does not consider it n ecessary to develop any additional reasoning
beyond that already set forth in the Report in the first recourse to Article 21.5 . Indeed, the factual
configuration of this case further corroborates the reasoning of the Panel in that Report as it provides
a concrete, real -world example of the type of scenario that the Panel cautioned might arise if
Thailand's restrictive interpretation of the scope of the CVA was adopted. The consequence of
Thailand's position regarding the non -applicability of the CVA to measures taken by organs which
are not part of the "customs administration" is that the CVA obligations at issue would apply to the
1,052 revised NoAs issued by the Customs Department in November 2017, but those obligations
would not apply to the 2002 -2003 Charges issued by the Public Prosecutor in January 2017,
notwithstanding that both the revised NoAs and the Charges rest on the same basis (i.e. the DSI 's
calculation of the "actual" value of PMTL 's imports of cigarettes based on the cost information in
excise tax form CK-21A) and that both cover overlapping entries.493 Therefore, the facts of this case
are a variation of the hypothetical situation that the Panel alluded to i n the first recourse to
Article 21.5, when it expressed its concern that:
If Thailand were correct that the CVA only applies to customs valuation determinations
made by the "customs administration ", Members could easily evade their CVA
obligations. A Member's customs administration and law enforcement agency could each
undertake a valuation decision for exactly the same purposes, namely, to establish the
value of goods that should have been used for the purposes of levying customs duties
due on goods at or following the time of their importation. However, while the CVA
would apply to the Member's customs administration 's actions in initially valuing the
goods, it would not apply when the value is re-assessed by a law enforcement agency.
We agree with the Philippines that such an interpretation would render the CVA
meaningless because Membe rs could evade their CVA obligations simply by having a
different agency re -assess the values initially determined by the customs
administration. We consider that the object and purpose of the covered agreements
should guide us to avoid interpretations that would enable Members to "circumvent" or
"evade" their obligations.494
7.261. The Panel thus considers that the factual configuration of this case vividly illustrates how the
object and purpose of the CVA could be undermined if its substantive obligations were fou nd to be

is therefore part of the "customs administration" in "the narrowest understanding of this term". (Panel Report,
Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.258, footnote 651, and para. 7.419.)
491 Thailand's first written submission, para. 3.4.
492 Thailand's first written submission, para. 3.8.
493 Thailand's response to Panel question No. 138.
494 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.642.

inapplicable to customs valuation determinations made in the criminal law enforcement context. The
Panel further notes that, in addition to opening the door for Members to evade their CVA obligations,
it would conflict with the CVA 's preambular objectives of promoting "uniformity" in the
implementation of WTO customs valuation rules, and the establishment of "valuation procedures of
general application", to find that the substantive obligations in the CVA apply to some state organs
but not others.495
7.262. The Panel does not understand Thailand to argue that the inapplicability of CVA obligations
to customs valuation determinations made in the criminal law context means that such
determinations could be made without any reasoned basis or fact ual evidence. Rather, the Panel
understands the implication of Thailand's argument to be that such determinations would be subject
to a different set of rules, procedures and legal concepts, derived from criminal law or some other
legal framework. However, Thailand does not specify exactly what these norms would be, or from
which sources of law this parallel regime would be derived. While Thailand does argue that it is
criminal law that would be applicable, specifically Section 27 of its Customs Act, Thailand does not
explain what methodolog (ies) would be used to arrive at the customs valuation determinations
required to apply that provision, and more specifically to determine the amounts "due" for purposes
of Section 27 . In the Panel's view, such a dichotom y of methods would further undermine the
objective of promoting uniformity in the implementation of customs valuation rules, and undermine
the effectiveness of the CVA.
7.263. In addition to its more general reiteration/incorporation of its earlier arguments, Th ailand
specifically reiterates an argument that was not explicitly addressed by the Panel in the first recourse
to Article 21.5. According to Thailand, the term "customs administration " in the CVA shou ld be
interpreted in accordance with the definition of "Customs" contained in the Revised Kyoto
Convention, and the Public Prosecutor does not meet the elements of the Revised Kyoto Convention's
definition of "Customs". The definition is found in Chapter 2 of the General Annex to that Convention,
which contains a set of provisions applicable to all the customs procedures and practices referred to
in the Convention (see Article 1 of the Revised Kyoto Convention ). The definition states that
"Customs" means "the Government Service which is responsible for the administration of Customs
law and the collection of duties and taxes and which also has the responsibility for the application of
other laws and regulations relating to the importation, exportatio n, movement or storage of
goods".496
7.264. In line with the approach that is already explained earlier497, the Panel considers that it is
appropriate for the Panel to confine the scope of any re-examination of its reasoning or findings to
any novel arguments presented by Thailand (or any third party) in the context of this second
recourse to Article 21.5. While the Philippines refers to Thailand's argument relating to the Revised
Kyoto Convention as a "new argument"498, it is not – Thailand made the same argument in the first
recourse to Article 21.5.499 However, the Panel did not specifically address Thailand 's argument in
its reasoning. Given that Thailand now reiterates this argument, the Panel considers it useful to spell
out why it was unnecessary to specifically address that argument to resolve the issue before the
Panel.
7.265. The Panel agrees with Thailand insofar as it is arguing that the definition of "Customs"
contained in the Revised Kyoto Convention is relevant to the interpretation of the same term in the

495 The Panel refers to the third, fourth and sixth recitals of the CVA preamble. These state:
Recognizing the importance of the provisions of Article VII of GATT 1994 and desiring to
elaborate rules for their application in order to provide greater uniformity and certainty in their
implementation;
Recognizing the need for a fair, uniform and neutral system for the valuation of goods for
customs purposes that precludes the use of arbitrary or fictitious customs values;
…
Recognizing that customs value should be based on simple and equitable criteria
consistent with commercial practices and that valuation procedures should be of general
application without distinction between sources of supply;

496 Kyoto Convention on the Simplification and Harmonization of Customs Procedures, Chapter 2,
(Exhibit THA-55).
497 See Section 7.1.2.2 (Reliance on the Report in the Philippines' first recourse to Article 21.5).
499 Thailand's comments on the Philippines' response to Panel question No. 92, p. 25.

CVA and other covered agreements, and may thus be taken into account as one element that may
be relevant to the interpretation of that term in the context of the CVA. The Panel recalls that in the
original proceeding the panel and th e Appellate Body actually relied on the above definition of
"Customs" to inform the meaning of "customs matters" in the context of Article X:3(b) of the GATT
1994. The Panel notes that several other panels and the Appellate Body itself have also referred
either to this definition of "Customs", or to other definitions contained in the Revised Kyoto
Convention, for the purpose of interpreting related terms in the covered agreements. 500 The Panel
considers that the Revised Kyoto Convention may in principle be regarded as a "relevant rule of
international law applicable in the relations between the parties" within the meaning of Article
31(3)(c) of the Vienna Convention , and that even if the number of contracting p arties would be
considered not to meet any requisite threshold501, it still sheds light on the ordinary meaning of
certain terms used in the CVA, and would at a minimum constitute a relevant "supplementary means
of interpretation" under Article 32 of the Vienna Convention.502
7.266. However, even assuming arguendo that Thailand is correct that the definition of "Customs"
contained in the Revised Kyoto Convention is relevant to the interpretation of the term "customs
administration" in the context of the CVA, and even assuming further that this definition supports a
restrictive interpretation of the terms "customs administration" in the CVA, this would still not alter
the Panel's existing conclusion or analysis. As recalled above at paragraph 7.257, the Panel did not
take a position on the meaning of the terms "customs administration" in the CVA, but instead simply
rejected the underlying premise that the CVA obligations invoked by the Philippines apply only to
those state organs that are a part of the "customs administration". Specifically, the Panel concluded
that the substantive CVA obligations invoked by Philippines "apply to any organ of the state that
makes a 'customs valuation' determination", and was therefore "unable to agree with Thailand that
the CVA is inapplicable to the Charges on the grounds that they were issued by the Public Prosecutor,
which is not a part of the 'customs administration'".503 This reasoning, i.e. that the substantive CVA
obligations at issue apply to any organ of the state that makes a "customs valuation" determination
irrespective of whether that organ forms part of the "customs administration", rendered moot
Thailand's argument regarding the definition of "Customs" in the Revised Kyoto Convention and
obviated any reason for the Panel to specifically address that definition in the reasoning. The Panel
sees no reason to go further than the Panel in the first recourse to Article 21.5 did in seeking to
define the term "customs administration" in the context of the CVA. Ther e is no obligation upon a
panel to make findings on every argument put forward by the parties in support of their respective
cases, insofar as acceptance or rejection of an argument would not alter the conclusion arrived at.504

500 Panel Report, Thailand – Cigarettes (Philippines), para. 7.1027; Appellate Body Report, Thailand –
Cigarettes (Philippines), para. 193. See also Panel Report, China – Auto Parts, para. 7.139 (in the context of
interpreting the terms "ordinary customs duties" in Article II of the GATT 1994); and Panel Report, Indonesia –
Chicken, footnote 776 (relying on the definition of "transhipment" in the Revised Kyoto Convention).
501 The Revised Kyoto Convention currently has 116 Contracting Parties, including the Philippines and
Thailand. The Appellate Body has observed that the meaning of the term "the parties" in Article 31(3)(c) of the
Vienna Convention "has in recent years been the subject of much academic debate and has been addressed by
the ILC", and noted that "one must exercise caution in drawing from an international agreement to which not
all WTO Members are party". (Appellate Body Report, EC and certain member States – Large Civil Aircraft,
paras. 844-845.)
502 There are past examples of panels and the Appellate Body having recourse to other international
conventions and instruments to inform the ordinary meaning of certain terms, including certain terms
contained in the covered agreements. See e.g. Appellate Body Report, US – Shrimp, para. 130 (interpreting
the terms "exhaustible natural resources" in Article XX(g) of the GATT 1994 in the light of the United Nations
Convention on the Law of the Sea, the Convention on Biological Diversity, Agenda 21, and the Resolution on
Assistance to Developing Countries adopted in conjunction with the Convention on the Conservation of
Migratory Species of Wild Animals); and Appellate Body Report, US – FSC (Article 21.5 – EC), paras. 141-143
(interpreting the concept of "foreign-source income" in footnote 59 of the SCM Agreement taking into account
certain widely recognized principles of taxation that emerge from international instruments in the field of
taxation, including the United Nations Model Tax Convention, the OECD Model Tax Convention, and a range of
bilateral tax treaties, and multilateral agreements adopted by member States of the Andean Community and
the Caribbean Community). Indeed, as already noted earlier, the Panel in the first recourse to Article 21.5
referred to Article 1(c) of the WCO Nairobi Convention in the context of clarifying what is generally understood
by the concept of "customs fraud". (Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 –
Philippines), para. 7.629.)
503 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.644.
504 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 6.6-6.7.

7.267. In addition to its argument b ased on the definition of "Customs" contained in Chapter 2 of
the General Annex to the Revised Kyoto Convention, Thailand has also submitted a copy of a letter
from the WCO Secretariat. The letter is addressed to Thailand, and is dated 6 July 2018. In Thailand's
view, the WCO Letter confirms that the Public Prosecutor is not a part of the "customs administration"
for purposes of the CVA.505 The WCO letter states that it was provided to Thailand in response to a
request, from Thailand, for clarification on: ( 1) the phrase "the Government Service which is
responsible for the administration of the Customs law and the collection of duties and taxes… ", as
mentioned in Chapter 2 of the General Annex to the Revised Kyoto Convention; and (2) whether the
Department of Special Investigation can be considered as a "Customs Administration" under the
CVA. The letter states that:
In response to the points you raise, neither the [Revised Kyoto Convention] nor the
[CVA] provides further guidance on this question. However, in the opinion of WCO, it is
normally the Customs department which has responsibility and the competence in
matters relating to the interpretation and application of technical Customs issues, such
as Customs valuation. We assume that DSI is not part of the Thai Customs Department;
on that basis DSI would not, in our opinion, be considered as a "Customs administration"
in the context of the Agreement.506
The letter then states that "[u]ltimately, it is a matter for a national decision t o be made in this
regard, taking into account national legislation", and proceeds to quote the following guidance from
the Glossary of International Customs Terms:
1. This term [Customs] is also used when referring to any part of the Customs
Service or its main or subsidiary offices.
2. This term is also used adjectivally in connection with officials of the Customs,
duties and taxes or control on goods, or any other matter within the purview of
the Customs (Customs officer, Customs duties, Customs office, Customs
declaration).507
7.268. The Philippines responds that the Panel should attach no weight to the WCO Letter. 508 It
points out that it is not clear if the letter expresses the official position of the WCO or merely the
views of the official that signed the lette r. It further notes that the letter references earlier
correspondence between Thailand and the WCO which has not been provided by Thailand. The
Philippines also questions whether the WCO was aware of the context of Thailand 's question, and
notes that the WCO Secretariat does not have access to the submissions before the Panel. While the
Philippines does not agree with certain statements made in the WCO Letter, the Philippines also
considers that the letter fails to support Thailand 's position as it merely o pines that "it is normally
the Customs department which has responsibility and the competence in matters relating to the
interpretation and application of technical Customs issues, such as customs valuation ", and states
that it "assumes" that the DSI is not "formally part of the Customs department".
7.269. The Panel does not exclude the possibility that the WCO Secretariat 's view on the scope of
certain terms used in both the CVA and certain conventions administered by the WCO, including the
term "customs", might assist a panel in arriving at the correct interpretation of those terms. 509

505 Thailand's second written submission, para. 3.3.
506 Communication from the World Customs Organization to Thailand's Director of Customs Standards
and Procedure Bureau, 6 July 2018, (Exhibit THA-68), p. 1.
507 Communication from the World Customs Organization to Thailand's Director of Customs Standards
and Procedure Bureau, 6 July 2018, (Exhibit THA-68), p. 2.
508 Philippines' response to Panel question No. 137(b).
509 There are past examples of panels engaging in such consultation. For example, the panel in China –
Auto Parts sought clarifications from the WCO Secretariat on certain issues relating to the "Revised Kyoto
Convention on the Simplification and Harmonization of Customs Procedures" and the WCO's "Glossary of
International Customs Terms." These questions touched upon the meaning of certain terms used in both in
conventions administered by the WCO and in the GATT 1994, including the terms "on or in connection with
importation" in Article II:1(b) of the GATT 1994. (See Panel Report, China – Auto Parts, Annex C-3.) In EC —
Approval and Marketing of Biotech Products, the panel stated that it "requested several international
organizations (Codex, FAO, the IPPC Secretariat, WHO, OIE, the CBD Secretariat and UNEP) to identify
materials (reference works, glossaries, official documents of the relevant international organizations, including

However, even assuming arguendo that Thailand is correct in construing the WCO Secretariat's letter
of 6 July 2018 as supporting a restrictive interpretation of the notion of "customs administration" in
the CVA, which the Panel doubts for the reasons identified by the Philippines above , this would still
not alter the Panel's conclusion or analysis. As already explained, the Panel rejected the underlying
premise that the CVA obligations invoked by the Philippines apply only to those state organs that
are a part of th e "customs administration" in the narrow sense of the term . The Panel's rationale
stands, and for the same reason that it is not necessary to further consider the definition of
"Customs" found in Chapter 2 of the General Annex to the Revised Kyoto Convention, it is not
necessary to further consider the WCO Letter, and the opinion reflected therein on whether the DSI
falls within the scope of the term "customs administration".510
7.270. For the foregoing reasons, the Panel concludes that Thailand has not presented any legal
arguments that would warrant the Panel either reversing its prior findings and reasoning, or making
additional findings beyond those already set forth in the earlier Report. The Panel hereby
incorporates by reference the reasoning in Section 7.3.5.3.2 (The agency that filed the Charges) of
the Panel Report in the first recourse to Article 21.5
7.271. The Panel now turns to the question of whether its prior finding s equally extend to the
provisions at issue in the present proceeding. It is necessary to consider this question because in
the first recourse to Article 21.5, the Panel limited its findings to the specific obligations invoked by
the Philippines in relation to the 2003-2006 Charges. The Panel found that those obligations apply
generally to "customs valuation determination[s] " attributable to a Member. The CVA obligations
which were at issue included the obligations in Article 1.1, Article 1.2(a) second sent ence, Article
2.1, and Article 3.1 of the CVA. In this second recourse to Article 21.5, the substantive CVA
obligations at issue again include the obligations in Articles 1.1 and 1.2(a), second sentence, but
they also include the substantive obligations in Articles 6 and 7, as well as the obligation to
sequentially apply the customs valuation methods in Articles 2 to 7. In addition to these substantive
obligations, the Philippines also brings a claim under the specific procedural obligation in Article
1.2(a), third sentence. Accordingly, the Panel must examine whether those findings, which focused
specifically on the substantive CVA obligations invoked by the Philippines in the first recourse to
Article 21.5, extend to the different set of CVA provisions at issue in this second recourse to
Article 21.5.
7.272. Beginning with the substantive CVA obligations at issue in this second recourse to Article
21.5, the use of the passive voice in Articles 1.1. and 1.2(a) (second sentence) was already explained
by the Panel in the first recourse to Article 21.5.511 The Panel notes that the text of Articles 6 and 7
likewise set forth obligations that are silent on who is applying the methodology. The text of these
provisions contains no reference to the "customs administration". Thus, Article 6.1 uses the passive
voice when it states that the customs value of imported goods under t he provisions of that Article
"shall be based on computed value ", and then proceeds to explain what computed value "shall
consist of"; and Article 7 uses the passive voice when it states that "the customs value shall be
determined using reasonable means co nsistent with the principles and general provisions of this

conventions, standards and guidelines, etc.) that might aid us in determining the ordinary meaning of certain
terms used in the definitions provided in Annex A to the SPS Agreement". (Panel Reports, EC — Approval and
Marketing of Biotech Products, paras. 7.96.) In several cases involving the interpretation of conventions that
are administered by WIPO and incorporated by reference into the TRIPS Agreement, panels have requested the
WIPO Secretariat to provide information relevant to the interpretation of the provisions at issue. (See e.g.
Panel Reports, US – Section 110(5) Copyright Act, para. 4.1; US – Section 211 Appropriations Act, paras.
8.11-8.13; EC – Trademarks and Geographical Indications, paras. 2.16-2.18; China – Intellectual Property
Rights, paras. 2.7-2.9; and Australia – Tobacco Plain Packaging (Cuba), paras. 1.63-1.65.) Finally, in
Dominican Republic – Import and Sale of Cigarettes, the panel sought and relied upon the opinion of the IMF
as to whether a foreign exchange fee applied by the Dominican Republic constituted an "exchange restriction"
within the meaning of Article XV: 9(a) of the GATT 1994. (Panel Report, Dominican Republic – Import and Sale
of Cigarettes, paras. 7.143-7.145.)
510 The Panel notes that the question addressed in the WCO letter is whether the DSI (not the Public
Prosecutor) is part of Thailand's "customs administration".
511 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.639. The Panel
observed that Article 1.1 uses the passive voice in stating that "[t]he customs value of imported goods shall be
the transaction value, that is the price actually paid or payable for the goods when sold for export to the
country of importation", provided that "the buyer and seller are not related, or where the buyer and seller are
related, that the transaction value is acceptable for customs purposes under the provisions of paragraph 2".
The Panel observed that the first and second sentences of Article 1.2(a) are likewise formulated in the passive
voice.

Agreement". There is likewise no reference to the "customs administration" in the first section of the
General Note to the Interpretative Notes to the CVA, entitled "Sequential Application of Valu ation
Methods". Paragraph 2 thereof uses the passive voice when it states that if goods cannot be valued
using the transaction value, the customs value "is to be determined by proceeding sequentially
through the succeeding Articles to the first such Articl e under which the customs value can be
determined". Accordingly, the Panel considers that its finding and reasoning from the first recourse
to Article 21.5 necessarily extends and applies to the above -mentioned substantive obligations at
issue in this disp ute. These substantive obligations, like the substantive obligations considered in
the first recourse to Article 21.5, apply to any organ of the state that makes a "customs valuation"
determination.
7.273. The Panel addresses the procedural obligation in Art icle 1.2(a), third sentence, in Section
7.3.6 below, in the context of examining the Philippines ' claim under that provision. As elaborated
further below in the context of examining that specific claim, the Panel concludes that the procedural
obligation in Article 1.2(a), third sentence, applies to the Public Prosecutor, but that the nature of
the information and the "grounds" to be communicated in the context of a criminal investigation
may be different from the nature of the information and the "grounds" to b e communicated in the
context of a typical customs valuation within the institutional framework of a "customs
administration" in the narrow sense of the term.
7.274. Based on the foregoing, the Panel find s that the obligations in Articles 1.1, 1.2(a), second
sentence, and the relevant custom valuation rules in Articles 2 to 7 apply to any organ of the state
that makes a "customs valuation" determination, and rejects Thailand's argument that the CVA is
inapplicable to the Charges because they were issued by the Public Prosecutor, which is not a part
of the "customs administration ". Having reached th at conclusion, the Panel again find s it
unnecessary to reach any definitive conclusion on the scope of the term "customs administration" in
the context of the CVA.
7.3.3.3.3 The meaning of the Charges
7.3.3.3.3.1 Introduction
7.275. The Panel recalls that Article 15.1(a) of the CVA defines the "customs value of imported
goods" as "the value of goods for the purposes of levying ad valorem customs duties on imported
goods", and that the panel in Colombia – Ports of Entry relied on Article 15.1(a) to define the
constituent elements that must be present for an action to constitute a "customs valuation "
determination subject to the obligations in t he CVA.512 The Panel further recalls that in the first
recourse to Article 21.5, the parties agreed that this is the applicable legal standard, and that for
the Charges to be subject to the CVA, both of the following elements of the definition of "customs
valuation" reflected in Article 15.1(a) must be present: (1) determining the monetary worth or price
of imported goods (2) for the purposes of levying ad valorem customs duties.513
7.276. In the first recourse to Article 21.5, Thailand argued that the 2003-2006 Charges did not
satisfy the first element of the definition of "customs valuation" in Article 15.1(a) of the CVA, as they
did not determine "the value of goods" imported by PMTL. Thailand maintained that the references
to the "actual prices" contained in the Annex to the 2003 -2006 Charges only served to establish a
possible benchmark for a fine in the event of a conviction for customs frau d. Thailand also argued
that t he Charges did not satisfy the second element of the definition of "customs valuation" in
Article 15.1(a), as they were not "for purposes of levying ad valorem duties".
7.277. The Panel was not persuaded by Thailand's arguments. As regards the first element in Article
15.1(a), the Panel explained, in S ection 7.3.5.3.3 (The meaning of t he Charges), why the 2003 -
2006 Charges did determine "the value of goods" imported by PMTL. As regards the second element
of Article 15.1(a), the Panel explained, in Section 7.3.5.3.4 (The consequences of the Charges), why
the Public Prosecutor's determination of the monetary worth or price of imported goods of PMTL for
the purpose of determining the amount of the ad valorem customs duties that should have been

512 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.646-7.647
(referring to Panel Report, Colombia – Ports of Entry, paras. 7.81, 7.83, and 7.84). See also, more recently,
Panel Report, Colombia – Textiles (Article 21.5 – Colombia/Panama), para. 7.599.
513 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.647.

levied on goods imported by PMTL was made "for the purposes of levying ad valorem customs duties
on imported goods".
7.278. In this second recourse to Article 21.5, Thailand reiterates similar arguments in connection
with the 2002-2003 Charges. Thailand's arguments are based on Article 15.1(a), and it has explained
that it "does not allege that the CVA has a special 'carve out' for allegations of customs fraud, for
which a different legal standard applies instead of Article 15.1(a) of the CVA"; rather, its "contention
on the applicability of the CVA is grounded directly in Article 15.1(a) ".514 Thailand further explains
that its arguments in this proceeding relating to "customs fraud" are tantamount to, and "nothing
else tha[n] another way of illustrating why the 02 -03 Charges do no t meet both elements of
Article 15.1(a) of the CVA".515
7.279. The Panel's analysis is likewise grounded in the elements of Article 15.1(a). As it did in its
prior Report in relation to the 2003 -2006 Charges, the Panel will separately and sequentially make
an assessment of whether the 2002 -2003 Charges ( 1) determine the monetary worth or price of
imported goods (2) for the purposes of levying ad valorem customs duties.
7.280. In this section, the Panel will consider whether the 2002-2003 Charges seek to determine
the monetary value of PMTL 's imported cigarettes in a way that meets the first element of Article
15.1(a). This point of disagreement between the parties requires the Panel to resolve certain issues
relating to the meaning of the Charges filed by the Public Prosecutor, and in particular how the
reference to the "actual price" is to be understood in the context of the 2002-2003 Charges and their
Annex. As elaborated below, the parties' arguments raise two issues.
7.3.3.3.3.2 The issues in dispute
7.281. As the parties have formulated certain of their arguments in this proceeding by reference to
the Panel's reasoning regarding the 2003 -2006 Charges in the first recourse to Article 21.5, the
Panel begins by briefly summarizing that reasoning. It then sets forth the evolution of the parties'
arguments regarding how the "actual price" is to be understood in this proceeding, with a view to
identifying and disentangling the two main issues in dispute.
7.282. In the first recourse to Article 21.5, the Panel was likewise called upon to consider the
meaning of the 2003-2006 Charges, and in particular what the "actual price" referred to. Regarding
the 2003-2006 Charges, Thailand argued that there was no "valuation of goods ", because those
Charges did not actually seek to "fix or determine the monetary value of PMTL's imported cigarettes".
Thailand essentially argued that although the 2003 -2006 Charges expressly compared PMTL 's
declared or "false" price with the "actual price" based on the prices of the duty -free operator King
Power, this was to be understood as alleging that the transaction va lue declared by PMTL was not
the actual price that PMTL paid to PM PMI, and that the reference to the "actual price" in the 2003-
2006 Charges and their Annex merely served the purpose of providing a possible benchmark to the
Criminal Court to impose fines i n the event of a conviction. 516 Thailand's argument was that the
reference to the "actual price" did not actually constitute any attempt to determine a revised customs
value within the scope of Articles 2 through 7 of the CVA. In other words, Thailand stress ed that
"the Charges do not determine or even attempt to determine what should be the 'true' or 'correct'
or 'actual' customs value".517
7.283. At the outset of its analysis of this issue, the Panel stated at paragraph 7.649 that it would
be inclined to agree with Thailand that the Charges would fall outside of the scope of application of
the CVA "if Thailand were to substantiate its interrelated assertions that the Charges allege customs
fraud based on a determination that the price that PMTL declared to have paid to PMPMI was not
the actual price that was paid to PMPMI, and that the references to King Power's prices in the Annex
merely serve as a possible benchmark for the purposes of a fine and not as a basis for determining
the actual customs value of PMTL's imported goods".518 In the course of its analysis, and in line with

514 Thailand's response to Panel question No. 171(a), para. 6.20.
515 Thailand's response to Panel question No. 171(a), para. 6.20.
516 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.648.
517 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.612, 7.631,
and 7.686.
518 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.649.

that clarification, the Panel agreed with Thailand that "an allegation of customs fraud could be made
without ever seeking to determine the customs value of the importer's goods," and that the making
of such accusation "does not necessarily presuppose that the authorities would have engaged in a
customs valuation determination in order to reach the conclusion that the declared transaction value
was not 'truthful or accurate'".519 Thus, the Panel accepted that an allegation of customs fraud might
be made without necessarily determining the monetary worth or price of imported goods, and that
if Thailand's assertions about the meaning of the 2003-2006 Charges were true this would suggest
that the Charges did not meet the first element of Article 15.1(a).
7.284. However, the Panel ultimately rejected Thailand's assertions regarding the meaning of the
2003-2006 Charges. The Panel explained that the text of the 2003-2006 Charges alleged that PMTL
failed to comply with Section 27 of the Customs Act by declaring a "false price" for Marlboro and
L&M cigarettes contrary to the "actual price".520 The Panel concluded, based on the plain meaning
of the Charges and their Annex, that the Charges did "fix or determine the monetary value of PMTL's
imported cigarettes" for purposes of customs valuation.521 The Panel found that Thailand's reading
of the Charges could not be supported by the actual text of the instrument, when it was read in
conjunction with its accompanying Annex, with the domestic legal framework in which the Charges
were situated, or with the events culminating in the Charges.522
7.285. In this second recourse to Article 21.5, the Philippines maintains that the 2002-2003 Charges
and their Annex, like the 2003-2006 Charges and their Annex, fix or determine the monetary value
of PMTL's imported cigarettes, because they establish the alleged "actual" or "found" price for each
of the 780 entries , and compare the "declared" price against the higher "actual" or "found" price.
The Philippines points out that "every single substantive clause of the 02 -03 Charges refers to the
'actual' prices of the imported goods ", and that the "Annex similarly provides exact figures for the
'actual' or 'found' price for each of the 780 entries ".523 According to the Philippines, this "actual
value" is the revised customs value which the Thai authorities calculated on the basis of Article 6 of
the CVA after having determined that the price actually paid or payable was influenced by the
relationship between PMTL and PM Indonesia. In other words, the P hilippines understands that the
2002-2003 Charges reject transaction values and calculate alternative "actual" customs values,
using the computed value method in Article 6, and on the basis of information in Indonesian excise
tax form CK-21A.524
7.286. Thailand dis agrees with both aspects of this understanding of the Charges. Thailand's
position on how the reference to the "actual price" is to be understood in the context of the 2002 -
2003 Charges has unfolded in the course of the proceeding, as follows:
a. In the context of arguing that the CVA does not apply to the Charges as this measure
constitutes an allegation of customs fraud, Thailand argued in its first written submission
that PMTL's declared value was not the price that PMTL actually paid to PM Indonesia
for the goods.525 The Panel notes that this argument implies that the reference to the
higher "actual price" in the Charges was "the price actually paid or payable" in the sense
of Article 1.1 of the CVA.
b. Also in its first written submission, Thailand presented alternative arguments assuming
arguendo that the CVA applies to the Charges. As part of these alternative arguments,
Thailand responded to the Philippines ' claims under Articles 1.1 and 1.2(a) by arguing
that the Thai authorities were justified in rejecting the price PMTL paid to PM Indonesia
as the basis for valuing the goods because the authorities found that this price was
influenced by the relationship between PM Indonesia and PMTL 526, and by suggesting
that the C harges reflect a revised customs value computed consistently with Article s

519 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.659.
520 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.661.
521 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.661.
522 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.653-7.664.
524 See e.g. Philippines' first written submission, section V.A.4 ("The 02-03 Charges reject transaction
values and calculate alternative "actual" customs values on the basis of information in Indonesian excise tax
form CK-21A")
525 Thailand's first written submission, paras. 1.4, 3.19, 3.22, and 4.3(a).
526 Thailand's first written submission, para. 3.91.

6.1 and/or 7.1 of the CVA.527 The Panel notes that this argument presupposes that the
Thai authorities assumed that the declared price was the price actually paid or payable,
and that the "actual price " in the Charges refers to the revised customs value
determined in accordance with Articles 6.1 and/or 7.1, and does not represent "the price
actually paid or payable".
c. In its second written submission, in the context of arguing that the CVA does not apply
to the Charges, Thailand clarified that "the reference to 'actual value' [in the 2002-2003
Charges] refers to the price actually paid or payable for the goods in question "528 and
not to "alternative" values as alleged by the Philippines , and explained that i ts
contradictory assertions made in the context of rebutting the Philippines ' claims under
Articles 1.2(a) and 6 were to be construed as arguments in the alternative.529 The Panel
notes that this clarification implies that the reference to the higher "actual price" in the
Charges was "the price actually paid or payable" in the sense of Article 1.1 of the CVA,
and that the authorities never proceeded to examine the circumstances of sale under
Article 1.2(a), or to determine a revised customs value under Articles 6.1 and/or 7.1.
d. In its response to Panel question No. 139, Thailand confirmed that "the 02-03 Charges
allege that the transaction value declared by PMTL was not the price actually paid "530,
but Thailand then submits that the Charges do not determine the "price actually paid or
payable" for the goods in the sense of Article 1.1 of the CVA, or any other revised
customs value, because the Charges are an accusation of customs fraud, and in cases
of customs fraud the authorities are not necessarily required to determine "the correct
customs value"531 and "need not calculate exactly the price actually paid".532 The Panel
notes that this argument implies that the "actual price" does not refer to either the
transaction value or a revised customs value , but without specifying what the "actual
price" refers to.
e. In its opening oral statement at the meeting of the Panel, Thailand stated that in cases
where penalties for customs frau d are determined by reference to the value of the
goods, the value of the goods "is a simple benchmark for a penalty" and not "a customs
valuation de termination"533; and i n response to Panel question Nos. 166 and 167,
Thailand stated that its position is that the reference to the "actual price" in the 2002-
2003 Charges refers to a determination by Thai authorities of a possible benchmark for
the imposition of a fine that does not represent any determination by Thai authorities
of the price actually paid or pa yable by PMTL to PM Indonesia, or of the revised value
that was determined after concluding that the price actually paid or payable was
influenced by the relationship between PMTL and PM Indonesia.534 The Panel notes that
this argument implies that the "actu al price" does not reflect a determination of the
"price actually paid or payable", or a revised customs value determined pursuant to
Articles 6.1 and/or 7.1.
7.287. In the light of Thailand's clarifications, the Panel understands Thailand's position to be that
the 2002-2003 Charges do not satisfy the first element of the definition of "customs valuation" in
Article 15.1(a) of the CVA for two related but independent reasons:
a. First, because the reference to the "actual price" in the 2002 -2003 Charges is to be
understood as merely establishing an "approximate"535 value of the goods in the context
of setting out the accusation that PMTL's declared price is not the price actually paid536,
and for the limited and distinct purpose of identifying a possible benchmark for a fine537,

527 Thailand's first written submission, paras. 3.105 and 3.110-3.111.
528 Thailand's second written submission, para. 3.14.
529 Thailand's second written submission, paras. 3.15-3-16.
530 Thailand's response to Panel question No. 139, para. 4.3.
531 Thailand's response to Panel question No. 139, para. 4.7.
532 Thailand's response to Panel question No. 139, para. 4.9.
533 Thailand's opening statement at the meeting of the Panel, para. 3.11.
534 Thailand's response to Panel question No. 167, para. 4.4.
535 Thailand's response to Panel question No. 171(a), para. 6.15.
536 Thailand's response to Panel question No. 171(a), para. 6.22.
537 Thailand's response to Panel question Nos. 166 and 167(a), and No. 171(a), para. 6.28.

and for either of these purposes it is "unnecessary to quantify the exact amount"538 of
the price actually paid or a revised customs value.539 In making this argument, Thailand
relies on the Panel's statement, at paragraph 7.659 of its Report in the first recourse to
Article 21.5, that "an allegation of customs fraud could be made without ever seeking
to determine the customs value of the importer 's goods," and that the making of such
accusation "does not necessarily presuppose that the authorities would have engaged
in a customs valuation determination in order to reach the conclusion that the declared
transaction value was not 'truthful or accurate'".540
b. Second, even if the Charges are read as fixing or determining th e actual and exact
monetary value of PMTL's imported cigarettes, which in Thailand's view they do not, the
2002-2003 Charges accuse PMTL of declaring an import value that is not the price
actually paid by the buyer to the seller, and therefore constitute the kind of measure
taken against "customs fraud" that the Panel in the first recourse to Article 21.5 said,
at paragraph 7.649 of its Report, that it was inclined to agree fell outside of the scope
of application of the CVA.541 Thailand argues that the Panel's clarification at paragraph
7.649 "is of the utmost importance as it provides guidance on the possible limits of the
scope of application of the CVA "542, and states that it seeks to "apply[] the first
Article 21.5 panel's standards and analysis to the facts of this case".543
7.288. Finally, the Panel understands Thailand 's arguments made in the context of rebutting the
Philippines' claims regarding the rejection of the transaction value and the determination of a revised
customs value, to be "alternative arguments " based on the arguendo assumption that the Thai
authorities rejected PMTL's transaction values, and determined a revised customs value.544
7.289. Based on the foregoing, the Panel understands the parties to disagree on two different issues
as to how the reference to the "actual price" is to be understood in the context of the 2002 -2003
Charges and their Annex. According to the Philippines: (1 ) the "actual price " in the 2002 -2003
Charges is to be understood in the same way that the Panel understood the reference to the "actual
price" in the context of the 2003-2006 Charges, namely as fixing or determining the actual and exact
monetary value of PMTL 's imported cigarettes; and (2 ) this "actual price" is the revised customs
value which the Thai authorities calculated on the basis of Article 6 of the CVA after having
determined that the price actually paid or payable was influenced by the relationship between PMTL
and PM Indo nesia. According to Thailand : (1) as a threshold matter the reference to the "actual
price" in the 2002-2003 Charges does not fix or determine the actual and exact monetary value of
PMTL's imported cigarettes as it is merely an "approximate" value of the goods made for the more
limited and distinct purposes of setting out the accusation that PMTL's declared price is not the price
actually paid and identifying a possible benchmark for a fine, for which it is unnecessary to quantify
the exact amount; and (2) if the "actual price" does fix or determine the actual and exact monetary
value of PMTL's imported cigarettes, it refers to the "price actually paid or payable" for the goods in
question, and not to "alternative" value as alleged by the Philippines, for the purpose of establishing
that PMTL's declared import value is not the price actually paid b y the buyer to the seller, and
therefore the 2002-2003 Charges constitute the kind of measure taken against "customs fraud" that
the Panel in the first recourse to Article 21.5 said, at paragraph 7.649 of its Report, that it was
inclined to agree fell outside of the scope of application of the CVA.
7.290. The Panel will first consider the question of whether the reference to the "actual price" in the
2002-2003 Charges fixes or determines the actual and exact monetary value of PMTL 's imported
cigarettes, as the Philippines contends, or is instead merely an "approximate" value included for
other purposes, as Thailand contends. The Panel will then address the second disputed issue, which
is whether the "actual price " is to be understood as a revised customs valuation following the
rejection of the transaction value, as the Philippines contends, or instead refers to the "price actually
paid or payable " as Thailand contends. In addressing these two issues, the Panel will follow the

538 Thailand's response to Panel question No. 171(a), para. 6.22.
539 Thailand's first written submission, paras. 3.10-3.25; second written submission, paras. 3.4-3.39.
540 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.659.
541 Thailand's first written submission, paras. 3.10-3.25.
542 Thailand's first written submission, para. 3.17.
543 Thailand's first written submission, para. 3.18.
544 Thailand's second written submission, paras. 3.15-3-16; response to Panel question No. 139,

applicable principles for resolving the meaning and content of municipal legal instruments as set
forth in the Report in the first recourse to Article 21.5.545
7.3.3.3.3.3 The issue of the "actual price" as merely an approximate reference value
7.291. Beginning with the first disputed issue , the Panel observes that the text of the 2002 -2003
Charges alleges that PMTL violated Section 27 of the Customs Act by declaring a "false price" for
Marlboro and L&M cigarettes contrary to the "actual price". As with the 2003-2006 Charges546, they
do not elaborate on whether PMTL declared a "false" price in the sense that it was contrary to the
"actual price" that PMTL paid or payable to PM Indonesia, or rather a "false" price that was contrary
to an "actual price" determined, using another benchmark , as the price to be used for customs
valuation. However, as with the 2003 -2006 Charges, the terms of the 2002 -2003 Charges make
clear that PMTL's declaring of a "false price" contrary to the "actual price" is the act giving rise to
the offense. There is no specific reference to any "fine" in the Charges.
7.292. On the other hand, for each of the 780 entries at issue, there is a clause whic h: (1) states
that for the particular entry at issue, the defendants declared a "false" value, and gives the price
corresponding to PMTL's declared price paid or payable, that was "contrary to the actual price and
against the law of customs", and specifies with another higher figure what that "actual price" was;
(2) refers to "the Exhibit attached to the Complaint " for, inter alia, the "price per pack of cigarette
falsely and jointly declared" by the defendants, and the "actual price of cigarettes for each brand";
(3) then concludes that "[t]he two Defendants and others committed such for the importation of the
goods into the Kingdom in order to avoid the full payment of tax and duty, which constituted the
actions of being involved in any manner to avoid or attempt to avoid the payment of customs tax or
duties … with the intention to defraud the government tax of His Majesty the King, which was the
violation of law".547 Thus, the Charges refer to these elements as the "acts" that "constituted" the
crime. In each of these respects, there is no difference between the 2003 -2006 Charges and the
2002-2003 Charges.
7.293. As with the 2003-2006 Charges, the 2002-2003 Charges repeat for each of the 780 entries
at issue that "the Exhibit attached to the Complaint" shows the details with respect to price per pack
of cigarettes "falsely" declared, and the "actual price" of cigarettes of each brand. The attachment
to the Charges, referred to by the parties as the "Annex"548 to the Charges, provides information on
the 780 entries at issue in the form of a table. For each of the 780 entries, Columns 2 through 5 of
the table provide information on the date and time of importation; the import entry number; the
imported goods (Marlboro or L&M); and the number of boxes/packs of cigarettes included in that
entry. Columns 6 and 7 provide information and exact figures on the "declared" and the "found"
prices, as follows:
a. Column 6 specifies the "declared price" by PMTL. The figures contained in Column 6
indicate that PMTL's declared transaction values for each of these entries was in the
range of THB 7.35-7.70 per pack for Marlboro cigarettes, and THB 6.13-6.55 per pack
for L&M cigarettes.549 These figures on the "declared price" in the Annex correspond to
the "false price" in the Charges.
b. Column 7 of the Annex specifies the alleged "found price ". In contrast to the
corresponding column in the Annex to the 2003 -2006 Charges, which expressly
indicated that the "found"/"actual" price was the "price of goods imported by King
Power", Column 7 of the Annex to the 2002 -2003 Charges does not specify what the
"found" price refers to.
c. Column 8 then calculates the "Amount underdeclared". Based on the difference between
the prices in Columns 6 and 7, i.e. between the "declared price" paid by PMTL and the
"found price", it provides this information on an entry-by-entry basis. Thus, the Annex

545 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.650-7.652.
546 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.653.
547 The Criminal Court, Charges, Case Black No. Or. 232/2560, 26 January 2017 (English translation),
(Exhibit PHL-14-B).
548 Annex to the 2002-2003 Charges, 26 January 2017 (English translation), (Exhibit PHL-273-A).
549 See DSI, Memorandum of Allegations, 22 September 2016 (English translation), (Exhibit PHL-13-B);

provides a comparison between PMTL 's declared transaction values and the "found
price", with the stated "Amount underdeclared" based on the precise difference between
the two.
d. Column 9, 10 and 11 then calculates the exact "declared", "found", and "underpaid"
amounts for import duties, excise tax, VAT, and an earmarked tax paid to the Thai
Health Promotion Found.
e. The last row of the table indicates, among other figures, that the difference between
the "declared price" and the "found price", i.e. the "Amount underdeclared", was THB
2.178 billion. On that basis, and applying the ad valorem rate of 5% to the "Amount
underdeclared", it calculates a figure of THB 108.9 million in "underpaid" import duties
(and corresponding amounts for the three sets of additional taxes).
7.294. Thus, like the 2003-2006 Charges, the 2002-2003 Charges specify in exact detail both the
"false" price and the "actual price", and they also calculate the exact amount of the ad valorem
customs duties that should have been paid by PMTL. Each of the 780 clauses of the 2002 -2003
Charges refers to the "amount of tax and [ ad valorem customs] duty under customs law that the
two Defendants and others were liable to pay", and calculates that "amount", in precise numerical
terms, using the "actual price" as the tax base. 550 Like the 2003-2006 Charges, the Annex to the
2002-2003 Charges compares the "declared" (or "false") price against the higher "actual" (or
"found") price, and calculates exactly the amount of taxes and ad valorem customs duties
purportedly "underdeclared" and/or "underpaid" on each entry, by reference to the difference
between the "false" transaction value and the "actual" (or "found") price. Accordingly, like the 2003-
2006 Charges, the plain meaning of the text of the 2002-2003 Charges and the Annex fixes the
monetary value of the imported goods and, on that basis, calculates the amount of ad valorem
customs duties due on those goods.
7.295. Regarding Thailand's assertion that the "actual price" is simply an approximate reference
value that only serves to establish a possible bench mark for a fine in the event of a conviction for
customs fraud, the Panel is unpersuaded for essentially the same reasons that it was not persuaded
by Thailand's assertion that this is how the "actual price" should be understood in the context of the
2003-2006 Charges. As already noted, t here is no specific reference to any "fine" in the Charges
and the "actual price" is not synonymous therewith. But more fundamentally, and as the Panel found
when addressing the same issue in the context of the 2003-2006 Charges:
We agree with the Philippines more generally that "[b]efore the Public Prosecutor can
establish any penalty (such as a fine), the Public Prosecutor must first establish that the
elements of the alleged crime are present, because these provide the ne cessary
justification for establishing the penalty " and that "[l]ogically, a penalty for the
commission of a crime can be considered only after the substantive elements of the
crime itself have been established". The domestic legal framework in which the Charges
and the Annex are situated, and in the context of which they must be read, also includes
Section 158(5) of the Criminal Procedure Code. Section 158(5), to which both parties
have made reference, provides that "a charge must contain 'all the acts alleged to have
been committed by the accused, all the facts and particulars regarding the time and
place of such acts, and the persons or articles concerned which are reasonably sufficient
to give the accused a clear understanding of the charge'."551
7.296. Thailand argues that although the reference to the "actual value" in the 2002-2003 Charges
refers to the "price actually paid or payable " for the goods in question 552, the Charges cannot be
understood as reflecting any customs valuation determination, and thus the reference to the "actual
value" is not a determination of the "price actually paid or payable" in the sense of Article 1.1 of the
CVA.553 That is so, Thailand argues, because "alleging that a price is not the price actua lly paid is

550 The Criminal Court, Charges, Case Black No. Or. 232/2560, 26 January 2017 (English translation),
(Exhibit PHL-14-B). (emphasis added)
551 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.655. (fns
omitted)
552 Thailand's second written submission, para. 3.14.
553 Thailand's response to Panel question No. 139, para. 4.4.

not the same as determining the correct customs value".554 Referring to the statement by the Panel
at paragraph 7.659 of its Report in the first recourse to Article 21.5, Thailand reasons that:
This type of determination does not require an asse ssment of the customs value of
imported merchandise. As acknowledged by the panel, "[w]e further agree with
Thailand that an allegation of customs fraud could be made without ever seeking to
determine the customs value of the importer's goods, and the making of such accusation
does not necessarily presuppose that the authorities would have engaged in a customs
valuation determination in order to reach the conclusion that the declared transaction
value was not 'truthful or accurate '". In making this statemen t, the panel referred to
Thailand's example illustrating why, from a practical perspective, an accusation of
customs fraud does not require a determination of the value of the imported goods. In
this sense, an accusation of customs fraud would fall outside the scope of the CVA.555
7.297. The Panel remains of the view it expressed in the first recourse to Article 21.5 that there are
circumstances in which "an allegation of customs fraud could be made without ever seeking to
determine the customs value of the importer 's goods, and the making of such accusation does not
necessarily presuppose that the authorities would have engaged in a customs valuation
determination in order to reach the conclusion that the declared transaction value was not 'truthful
or accurate'".556 The Panel also remains of the view that these general considerations apply equally
in the context of Section 27 of the Customs Act, and does not consider that in order to establish the
constituent elements of an offence, the terms of Section 27 always requ ire that the authorities
engage in customs valuation determinations, such that any and all Charges brought pursuant to
Section 27 necessarily fall within the purview of the CVA. 557 The Panel also continues to accept
Thailand's explanation that Section 158(5) of the Criminal Procedure does not have the effect of
requiring that, for any charges alleging an offense under Section 27, they must "lay out what the
correct value would have been had the alleged offence not occurred".558
7.298. Thus, the Panel acknowledged that there are circumstances in which a determination of
customs fraud could be made without ever seeking to determine the customs value of the importer's
goods, and that the making of an accusation of customs fraud does not necessarily presuppose that
the authorities would have engaged in a customs valuation determination in order to reach the
conclusion that the declared transaction value was not "truthful or accurate". To illustrate how that
could be, the Panel gave an example of a particular set of circumstances in which that might be the
case.559 However, the Panel manifestly did not say, or suggest, that as a general rule an allegation
of customs fraud can never involve any determination of the customs value of the goods. Nor did
the Panel suggest that where an allegation of customs fraud expressly reflects a determination of
the "price actually paid or payable ", that determination is one to which the CVA is inapplicable on
account of the fact that there might be other circumstances in which there is an allegation of customs
fraud in which no such determination is made.
7.299. In other words, the fact that there may be circumstances in which an allegation of customs
fraud could be made without ever seeking to determine the customs va lue of the importer's goods
does not imply that this will always be the case. Accordingly, there is no presumption that whenever
there is a determination of the customs value based on the "price actually paid or payable ", such
determination must automatica lly be deemed to be an exercise in which the authorities are not

554 Thailand's response to Panel question No. 139, para. 4.7.
555 Thailand's response to Panel question No. 139, para. 4.5. See also paragraph 4.9. (fns omitted)
556 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.659.
557 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.660.
558 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.660.
559 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.659. The panel
Report in Colombia – Textiles (Article 21.5 – Colombia/Panama) was circulated after the Report in the first
recourse to Article 21.5 was finalized and issued to the parties. In the context of discussing guarantees aimed
at securing payment in situations of suspected under-invoicing, the panel stated that "there is an element of
uncertainty inherent in any valuation dispute, since it is not known at the start of the dispute what the final
determination will be. This situation makes it difficult to be more precise at the time of setting the amount of
the bond. The Panel appreciates that in the event of a dispute concerning the value of goods when there is a
suspicion of under-invoicing, it is understandable that the amount of the bond be calculated on the basis of a
reference value". (Panel Report, Colombia – Textiles (Article 21.5 – Colombia/Panama), para. 7.232.) The
Panel agrees.

making a determination of the "price actually paid or payable" within the meaning of Article 1.1. The
Panel recalls that the 2002 -2003 Charges brought against PMTL allege that PMTL failed to comply
with Section 27 by declaring a "false price" for Marlboro and L&M cigarettes contrary to the "actual
price", and they specify in exact detail both the "actual price", and the basis for determining that
"actual price".
7.300. Furthermore, as the Panel indicated already in the first recourse to Article 21.5, a reading of
the terms of the Charges and their accompanying Annex in the context of Section 2 of the Customs
Act reinforces the conclusion that the "actual price" referred to in the Charges necessarily involves
a customs valuation determination, which a fortiori includes a determination of the "value of the
goods" in the sense of the first element of Article 15.1(a). The Panel stated that:
Section 2 of the Customs Act sets out definitions of terms that appear throughout the
Act, and confirms that the terms "customs price" and "price" carry the same meaning
as one another, which "in the case of importation, means price of goods for the purpose
to collect duty".560 It further provides that the "price of goods for the purpose to collect
duty" should be in accordance with one of six different benchmarks corresponding to
Articles 1-7 of the CVA. We recall that Section 27 provides a benchmark for the purpose
of calculating a fine, which is that, in the event of a conviction, PMTL shall for each
offence be liable for a fine equal to quadruple "the duty-paid value of the goods ". In
response to a question from the Panel, Thailand confirms that, under its position that
the Annex merely sets forth a benchmark for a fine, the Annex still reflects "the Public
Prosecutor's view that King Power 's purchase prices are equivalent to the duty -paid
value of the goods within the meaning of Section 27".561
7.301. Finally, the Panel does not see how Th ailand's assertions regarding the meaning of the
Charges – that the "actual price " in the 2002 -2003 Charges is to be understood as merely
establishing an "approximate" reference value of the goods for which it is "unnecessary to quantify
the exact amount"562 – can be reconciled with the content of the 1,052 revised NoAs . The figures
presented in the revised NoAs as the "actual value" used by the Thai Customs for determining the
customs duties due in respect of the 779 entries covered by both sets of measures are the same
figures found in the Charges under "actual price". In the context of the 1,052 revised NoAs, the
"actual value" is undoubtedly not an "approximate" reference value, and cannot be understood as
anything other than the result of the Thai authorities' exercise of quantifying the exact value of the
goods at issue.563 The NoAs reflected the final determination of the value of the goods at issue made
by the Thai Customs Department, not some intermediate or provisional step in respect of which the
use of an approximate reference value might be conceivable or acceptable . The inescapable
conclusion is that both the 1,052 revised NoAs and the Charges fix or determine the monetary value
of PMTL's imported cigarettes.
7.302. Based on the foregoing, the Panel concludes that, like 2003-2006 Charges, the "actual price"
in the 2002-2003 Charges prima facie fixes or determines the monetary value of PMTL's imported
cigarettes, and cannot be construed as merely an approximate reference value as asserted by
Thailand.

560 (footnote original) Emphasis added. Thailand argues that Section 103 of the Customs Act is the
relevant provision for the calculation of a criminal fine, and that therefore Section 103, and not Section 2, is
the correct context for understanding the term "price" as used in the Charges. (Thailand's second written
submission, para. 3.118-3.120) We agree with the Philippines that it is clear from the terms of the Charges
that they refer to the "price" for the purpose of establishing the constituent elements of the crime under
Section 27 of the Customs Act, not "for the purpose of fixing the amount of any fine or penalty". (Philippines'
response to Panel question No. 33, paras. 261-274.) Accordingly, we agree with the Philippines that Section 2,
and not Section 103, is the relevant provision of the Customs Act for the purpose of understanding the term
"price" as used in the Charges.
561 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.662. (fns
omitted)
562 Thailand's response to Panel question No. 171(a), para. 6.22.
563 Thailand accepts that, in issuing the 1,052 revised NoAs, the Customs Department made customs
valuation determinations that are subject to Thailand's procedural and substantive obligations under the CVA.
(Thailand's response to Panel question No. 163(a).)

7.3.3.3.3.4 The issue of the "actual price" as the "price actually paid or payable"
7.303. Having found that the reference to the "actual price" in the 2002-2003 Charges fixes or
determines the actual and exact monetary value of PMTL's imported cigarettes, the Panel now turns
to assess the question of whether the references to the "actual price" in the Charges and their Annex
refer to the "price actua lly paid or payable " for the imports at issue, as Thailand maintains, or
whether they refer instead to a revised customs value that does not call into question the price
actually paid or payable by PMTL, as the Philippines maintains. The Panel recalls that Thailand made
this argument in the alternative.
7.304. The 2003-2006 Charges at issue in the first recourse to Article 21.5 explicitly stated that the
"actual price " which they contained was a reference to the prices of King Power, the duty -free
operator, which was the benchmark that the Thai authorities relied upon to reject PMTL's transaction
values for purposes of customs valuation. As regards the 2003 -2006 Charges, Thailand asserted
that they too were to be understood as alleging customs fraud, in the sense that the price declared
by PMTL was not the price actually paid or payable to PMPMI. However, Thailand never suggested
that the "actual price" was the "price actually paid or payable " in the case of the transactions at
issue between PMTL and PMPMI, which would have amounted to saying that PMTL's purchase prices
happened to be identical to King Power prices. What Thailand argued was that this reference to King
Power's prices did not constitute any attempt to determine a revised customs value within the scope
of Articles 2 through 7 of the CVA, and was rather merely a possible benchmark for determining a
penalty in the event that the Court convicted PMTL of violation Section 27. As already noted, the
Panel found that Thailand's reading of the Charges could not be supported by the actual text of the
instrument, when it is read in conjunction with its accompanying Annex, the domestic legal
framework in which the Charges were situated, and the events culminating in the Charges.
7.305. In the Panel's view, the circumstances surrounding the 2002-2003 Charges suggest that the
"actual price" in the 2002 -2003 Charges refers to a revised customs value calculated using the
computed value methodology under Article 6 and/or the flexibilities under Article 7 of the CVA, and
not, as Thailand suggests, a determination of the "price actually paid or payable " for the goods in
question. While the 2002-2003 Charges are not free of ambiguity on this point, the Panel considers
that each of the considerations that Thailand refers to in support of its position actually point in the
opposite direction.
7.306. First, Thailand suggests that because the 2002 -2003 Charges allege that PMTL committed
an offence of customs fraud under Section 27 of Thailand 's Customs Act, this is an indication that
the Charges accuse PMTL of declaring an import value that is not the price actually paid by the buyer
to the seller564, and that the "actual price" in the Charges refers to the latter. 565 However, for the
reasons that follow the Panel considers that the nature and legal basis of the Charges brought against
PMTL by the Public Prosecutor do not permit concluding that the "actual price " reflects a
determination of the price actually paid or payable by PMTL to PM Indonesia.
7.307. The 2003-2006 Charges alleged the same offense under the same provision of Thai law
(Section 27 of the Customs Act ), and the Panel found that the 2003-2006 Charges used the term
"actual price" to refer not to the price actually paid or payable, but to a benchmark and revised
customs value used for the purpose of rejecting the price paid by PMTL to PM PMI as a basis for
customs valuation. The same entity (the Public Prosecutor) prepared and filed both sets of Charges,
and both are based on the same investigations and prosecution recommendations made by the same
entity (the DSI). It may not be inconceivable that the responsible Thai authorities could have used
the term "actual price" in a completely different sense in the two sets of Charges; however, that
abstract possibility alone is not sufficient to distinguish the 2002-2003 Charges from the 2003-2006
Charges. Because the two sets of Charges are based on the same provision and were brought by
the same Thai entity, only one year apart from one another, and dealing with the same importer ,
the Panel's understanding of the term "actual price" in the context of the 2003 -2006 Charges may
be relevant, and taken into account, to understand how the same Thai authorities bringing another
Charges under Section 27 used the same term – i.e., the "actual price" – in the context of the 2002-
2003 Charges.

564 Thailand's first written submission, para. 3.19.
565 Thailand's second written submission, para. 3.14.

7.308. Second, Thailand argues that the nature of the information used to calculate the "actual
price", namely the exporter's own declaration of its costs and profits to its own government as
reported in the CK -21A forms, is an indication that the authorities were seeking to determine the
"price actually paid or payable " by PMTL to PM Indonesia. 566 However, for the reasons that follow
the Panel considers that t he pricing and cost information used by the Thai authorities to calculate
the "actual price" also does not serve as an indication that the Thai authorities were seeking to
discover the price actually paid or payable by PMTL to PM Indonesia. In the Panel's view, the nature
of the pricing and cost information relied upon by the Thai authorities rather suggests that they were
constructing a benchmark value, and not attempting to discover the "price actually paid or payable"
between two parties.
7.309. As the European Union observes in its third -party submission, "cost structure information
received from the Indonesian government … would qualify as meta-data rather than as actual prices
paid in Thailand".567 In its response to a question from the Panel asking it to explain exactly how it
determined the actual price on the basis of the information in CK-21A, Thailand confirms that it used
the information in the CK-21A forms to "calculate[] a constructed CIF price".568 Specifically, Thailand
states that its authorities proceeded as follows: "Thailand obtained the cost of pr oduction by
subtracting from the retail price the following: excise tax, value -added tax, and profits for agents
and distributors. Once the cost was obtained, Thailand added an amount for freight and insurance,
which gave a CIF price per pack in Rupiahs (Indonesia's currency). This amount was then converted
to Thai baht using the applicable exchange rates."569
7.310. As explained by Thailand, its constructed CIF price based on data of the type reflected in the
CK-21A forms constitutes a constructed benchmark value. Such data is not directly related to the
transactions at issue, whereas the very notion of "transaction value" is inherently transactional.
Moreover, as the Philippines points out, there is no necessary relationship between a producer 's
costs and profits and its selling price in particular transactions.570 As the European Union puts it, "if
the cost information in CK-21A were to prove the price actually paid, it would in the European Union's
understanding, need to relate to the actual transactions at stake. If it relates to Philip Morris ' cost
structure more generally, it rather serves to establish abstract benchmark prices which by definition
cannot be the price actually paid."571
7.311. Additionally, the Panel notes that P aragraph 3 of the Interpretative Note to Article 1.2
envisages that when an examination of the circumstances of sale finds that the "price actually paid
or payable " (the transaction value) is inadequate to ensure recovery off all costs plus a
representative profit, this could support a determination that the price paid was influenced by the
relationship between the parties. Contrary to what Thailand 's argument seems to suggest, such a
finding does not in itself imply that the declared price was not "the price actually paid or payable ",
and that the importer committed customs fraud.
7.312. In any event, the Panel considers that even if the reference to the "actual price" in the 2002-
2003 Charges is understood as a determination of the "price actually paid or payable ", this would

566 Thailand's first written submission, paras. 3.20-3.21; second written submission, para. 3.11.
Thailand states that "where the transaction value reported by the importer into Thailand appears to reflect very
different values than might be expected based on the exporter's declarations of costs and profits to the
Indonesian government, any reasonable authority would have grounds to suspect that the declared transaction
value does not reflect the price actually paid or payable". (Thailand's second written submission, para. 3.4.)
567 European Union's third-party submission, para. 24.
568 Thailand's response to Panel question No. 143, para. 5.3. (emphasis added)
569 Thailand's response to Panel question No. 143, para. 5.2. The Panel notes that there is a degree of
ambiguity surrounding Thailand's explanations as to the manner in which the Thai authorities calculated the
CIF price. Commenting on Thailand's statement that its authorities had proceeded by "subtracting from the
retail sales price" the specified taxes and profits, the Philippines argued that this meant that Thailand used a
deductive calculation, working backwards "from the retail price", in a way that inconsistent with both Article
7.2(c) and 7.3(d). (Philippines' opening statement at the meeting of the Panel, paras. 69-76.) In response to a
question from the Panel asking Thailand to respond, Thailand stated that its authorities had calculated the CIF
price on the basis of the pricing and cost information reported by PM Indonesia in the CK-21A forms, and
"[t]he fact that these costs figures can also be revealed by subtracting from the retail price certain
expenditures … does not imply that Thailand calculated the constructed CIF price on the basis of the retail price
in Indonesia within the meaning of Article 7.2(c)." (Thailand's response to Panel question No. 169, para. 5.4.)
570 Philippines' response to Panel question No. 140, para. 91.
571 European Union's response to Panel question No. 14(b) to third parties, para. 15.

still reflect a customs valuation determination subject to the disciplines in Article 1.1 of the CVA.
There is nothing in the ordinary meaning of the terms of Article 1.1 to suggest that an authority has
a free hand to determine the "price actually paid or payable". Furthermore, it would be contradictory
for the CVA to establish that the "primary basis for customs value under this Agreeme nt is
'transaction value' as defined in Article 1"572, and then find that the same CVA does not apply to the
authorities' determination of the transaction value (i.e. the "price actually paid or payable "). The
Panel does not see any legal basis for, or the logic in, the view that an authority's determination of
the "price actually paid or payable " under Article 1.1 is a matter to which the CVA does not apply.
The Panel notes that neither party, nor any third party, has argued that an authority has a free hand
in determining the price actually paid or payable.573
7.313. Thailand argues that the 2002-2003 Charges accuse PMTL of declaring an import value that
is not the price actually paid by the buyer to the seller, and therefore constitute the kind of "customs
fraud" that the Panel stated that it was inclined to agree fell outside of the scope of application of
the CVA.574 In Thailand's view, if a measure concerns "customs fraud", then it follows that it does
not determine "the monetary worth or price of imported goods for the purposes of levying ad valorem
customs duties".575 Thailand repeatedly asserts that the 2002-2003 Charges fall outside of the scope
of the CVA simply because they allege "customs fraud", and imputes that view to the Panel on the
basis of what the Panel said in paragraph 7.649 of the Report.576
7.314. Contrary to Thailand's reading, the Panel did not say that the CVA would not have applied if
Thailand had been able to substantiate its assertion "that the allegation against PMTL relates to
customs fraud as previously defined by the panel". The Panel stated that it would have been inclined
to agree with Thailand that the CVA would not apply to the challenged measure if, as Thailand had
asserted, the allegation against PMTL relates to customs fraud as previously defined by the panel,
and if it did not determine the actual customs value of the imported goods . It was in response to
Thailand's core assertion that "the Charges do not determine or even a ttempt to determine what
should be the 'true' or 'correct' or 'actual' customs value"577 that the Panel stated:
We would be inclined to agree with Thailand that the Charges fall outside of the scope
of application of the CVA if Thailand were to substantiate its interrelated assertions that
the Charges allege customs fraud based on a determination that the price that PMTL
declared to have paid to PMPMI was not the actual price that was paid to PMPMI, and
that the references to King Power 's prices in the Annex merely serve as a possible
benchmark for the purposes of a fine and not as a basis for determining the actual
customs value of PMTL's imported goods.578 579
7.315. The wording of this statement is clear. However, in its interim review comments in the first
recourse to Article 21.5, Thailand made comments on paragraphs 7.681 and 7.682 that seemed to
assume that paragraph 7.649 contained the broad statement that the CVA would not apply insofar
as the declared transaction value is not the price actually paid or payable. 580 The Philippines

573 Parties' responses to Panel question No. 142; European Union's response to Panel question No. 15 to
third parties; United States' response to Philippines' question No. 1 to third parties.
574 Thailand's first written submission, paras. 3.10-3.25.
575 Thailand's first written submission, para. 3.23.
576 See e.g. Thailand's first written submission, para. 3.16 (stating that "[a]s part of its reasoning, the
panel clarified that, in the specific circumstances of the 03-06 charges, the CVA would not have applied if
Thailand had been able to substantiate its assertions that the allegation against PMTL relates to customs fraud
as previously defined by the panel"); opening statement at the meeting of the Panel, para. 3.7 (asserting that
"[t]he Panel stated, in no uncertain terms, that it "would be inclined to agree with Thailand that the Charges
fall outside the scope of the CVA" should Thailand be able to demonstrate that Charges allege customs fraud as
previously defined by the Panel.")
577 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.612, 7.631,
and 7.686.
578 (footnote original) The Panel need not decide, and therefore does not decide, whether in such
circumstances the domestic authorities may still be subject to the procedures elaborated in the Decision
Regarding Cases Where Customs Administrations Have Reasons to Doubt the Truth or Accuracy of the Declared
Value.
579 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.649. (emphasis
added)
580 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 6.39.

considered that the statement in paragraph 7.649 was unnecessary obiter dicta, and expressed the
concern, in the light of Thailand 's apparent misreading of that statement, that Thailand's "reliance
upon this statement at the first opportunity " illustrates "the dangers of the Panel 's approach" in
making this obiter statement.581 The Panel explained t hat it retained this statement because the
circumstances addressed by the Panel were those put forth by Thailand as part of its argumentation
as to the meaning of the 2003-2006 Charges.582 However, the Panel clarified that:
[P]aragraph 7.649 does not make a blanket statement that the CVA does not apply to
any circumstance when the declared transaction value is not the price actually paid or
payable. Rather, the text states that we would 'be inclined to agree' with Thailand that
the Charges fall outside of the scope of application of the CVA if Thailand were to
substantiate its "interrelated assertions " that (i) "the Charges allege customs fraud
based on a determination that the price that PMTL declared to have paid to PMPMI was
not the actual price that was paid to PMPMI ", and that (ii) "the references to King
Power's prices in the Annex merely serve as a possible benchmark for the purposes of
a fine" and (iii) not "as a basis for determining the actual customs value of PMTL 's
imported goods".583 (emphasis original)
7.316. Additionally, the Panel notes that it reiterated, in the context of responding to Thailand 's
interim review comments on paragraphs 7.681 and 7.682, that "contrary to what Thailand 's
comment might be taken to imply, paragraph 7.649 does not make a blanket statement that the
CVA does not apply when the declared transaction value is not the price actually paid or payable".584
Furthermore, the Panel notes that it made certain other statements in its R eport that assume the
applicability of the CVA to measures combatting customs fraud, insofar as such measures reflect a
customs valuation determination. For instance, in the context of its analysis under Article XX of the
GATT 1994, the Panel stated that "measures taken by a Member to combat customs fraud will not
run afoul of the obligations contained in the CVA unless such measures are premised on a false
customs value that was determined inconsistently with the provisions of the CVA."585
7.317. In conclusion, the Panel concludes that the "actual price" does not refer to the "price actually
paid or payable", as Thailand maintains, but is rather a revised customs value determined by the
DSI and Public Prosecutor. In any event, the Panel considers that even if the reference to the "actual
price" in the 2002 -2003 Charges is understood as a determination of the "price actually paid or
payable", this would still reflect a customs valuation determination subjec t to the disciplines in
Article 1.1 of the CVA.
7.3.3.3.3.5 Conclusion
7.318. The Panel finds that the 2002 -2003 Charges meet the first element of the definition of
"customs valuation" in Article 15.1(a) of the CVA as understood by the Panel in the first recourse to
Article 21.5. Like 2003-2006 Charges, the 2002-2003 Charges fix or determine the monetary value
of PMTL's imported cigarettes by determining the "actual price" of the 780 entries of cigarettes.
7.3.3.3.4 The consequences of the Charges
7.319. The Panel will now turn to Thailand's argument that the 2002-2003 Charges do not satisfy
the second element of Article 15.1(a), because they are not "for purposes of levying ad valorem
duties of customs". Thailand made a similar argument in the first recourse to Article 21.5, when it
argued that the 2003 -2006 Charges did not meet the second elem ent of Article 15.1(a) because
they would only result in criminal fines and penalties, and would not result in border measures
levying ad valorem customs duties on imported goods.586 The Panel noted that Thailand's argument
essentially related to the consequ ences that may follow from the Charges587, and for that reason

581 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 6.39.
582 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 6.34.
583 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 6.34.
584 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 6.39.
585 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.756. (emphasis
added)
586 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.613, 7.668.
587 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.665.

addressed this argument in S ection 7.3.5.3.4 under the heading, "The consequences of the
Charges".
7.320. The Panel considers it useful to recall Thailand's arguments on this issue in the first recourse
to Article 21.5. Thailand referred to the ordinary meaning of the term "levy", and submit ted that
"the second element is satisfied only if the valuation of the goods has the purpose of collecting
charges imposed at the border on goods entering the country".588 Thailand stated that "[n]owhere
in the Charges does the Public Prosecutor indicate that the criminal accusations against PM Thailand
shall be the basis for levying ad valorem customs duties".589 Thailand further submit ted that the
customs duties on the 272 entries have already been levied and paid; hence, all matters relating to
the customs valuation and levying of ad valorem customs duties for these 272 entries had
concluded.590 Furthermore, Thailand pointed out that, as a matter of Thai law, neithe r the Public
Prosecutor nor the Criminal Court has the legal power to value imported goods for the purposes of
levying ad valorem customs duties.591 According to Thailand, if a fine were imposed, it would "have
no effect on the customs duties that [were] alr eady paid by PM Thailand with respect to these
272 entries"592, and the potential criminal fine at issue "would not be a charge levied at the border
on goods entering Thailand".593
7.321. The Panel rejected Thailand's restrictive interpretation of the terms "for purposes of levying
ad valorem duties of customs on imported goods ". The Panel concluded that by their plain terms,
the 2003-2006 Charges read in conjunction with their Annex determine d the monetary worth or
price of imported goods of PMTL "for the purpose of determining the amount of the ad valorem
customs duties that should have been paid by PMTL".594 The Panel read the terms "for the purposes
of levying ad valorem duties" in the context of Article 15.1(a) "as embracing any determination of
the value of imported goods for the purpose of determining the amount of ad valorem duties due on
those imported goods".595 The Panel explained why it did not consider that the applicability of the
CVA to the Charges turn ed on the meaning of the term "levying"596, and observed that Thailand's
interpretation of Article 15.1(a) was "contradicted by various provisions of the CVA which establish
that customs duties are not necessarily 'levied on the border ', either in physical or temporal
terms".597 The Panel also explained that if Thailand were correct in its argument that the CVA only
applies to customs valuation determinations that result in the actual levying of ad valorem customs
duties, "Members could very easily evade their CVA obligations".
7.322. Thus, the Panel based its interpretation on the ordinary meaning of the terms of
Article 15.1(a) read in their context and in the light of the CVA's object and purpose as required by
Article 31(1) of the Vienna Convention. The Panel also took note of ho w Thailand's arguments on
this point evolved in the first recourse to Article 21.5, stating that:
It appears to us that Thailand distances itself from the restrictive interpretation of
Article 15.1(a) that would lead to this consequence. In response to a question from the
Panel, Thailand accepted the proposition that if an agency values imported goods for
the purpose of determining the amount of the ad valorem customs duties (and excise
tax) that should have been paid at the time of importation, this would not cease to
constitute the valuation of goods "for the purposes of levying ad valorem customs
duties" if it results in a fine.598
7.323. In its first and second written submissions in this second recourse to Article 21.5 , Thailand
argued that the CVA is inapplicable to the 2002 -2003 Charges because the Public Prosecutor is not
part of the "customs administration", and because the 2002-2003 Charges are the kind of measure

588 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.613.
589 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.613.
590 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.613.
591 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.613.
592 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.613.
593 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.613.
594 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.667.
595 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.669.
596 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.669.
597 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.670.
598 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.671 (referring to
Thailand's response to Panel question No. 105).

taken against "customs fraud " that the Panel indica ted did not involve a determination of the
"customs value of imported goods" in the sense of the first element of Article 15.1(a). However, in
its opening statement at the meeting of the Panel, Thailand reverted back to its argumentation on
the second elem ent of Article 15.1(a), and argued that the Panel was wrong to reject Thailand 's
interpretation of the terms "for purposes of levying ad valorem duties" in Article 15.1(a).599
7.324. Thailand argues that the terms "for purposes of levying ad valorem duties of cust oms on
imported goods" only embrace measures that that have a "direct repercussion" for600, or "direct
connection" to601, the amount of the ad valorem duties levied. Thailand submits that, for a valuation
measure to satisfy the second element of Article 15.1(a ), it "must be made for the calculation of
duties that are to be collected from the importer"602, and cannot be an abstract determination of the
amount of customs duties that are "due" or that "should have been paid".603 At the hearing and in
its responses to the post -hearing questions from the Panel, Thailand maintained that it is the
interpretation and application of the second element of Article 15.1(a) that actually constitutes the
"key issue" concerning the applicability of the CVA to the 2002-2003 Charges.604
7.325. In developing this argument, Thailand reiterates some of the same points that it made, and
which the Panel 's reasoning already addressed, in the first recourse to Article 21.5. For instance,
Thailand states that in the case of the entries covered by the Charges, "the ad valorem duties were
calculated, levied and paid years ago ".605 It refers, as it did in the first recourse to Article 21.5, to
the analysis by the panel in Colombia – Ports of Entry.606 It observes, as it did in the first recourse
to Article 21.5, that a fine is not the same as a customs duty, and that to conclude otherwise would
lead to the conclusion that fines would be subject to all obligations under the GATT 1994 including
tariff bindings. The Panel considers that its reasoning in the Report in the first recourse to Article 21.5
sufficiently addresses these points, and that there is no reason to repeat that analysis or dwell
further on these points here.
7.326. The Panel does not consider it necessary to de velop any additional reasoning beyond that
already set forth in the Report in the first recourse to Article 21.5. In fact, the factual configuration
of this case further corroborates the reasoning of the Panel in that Report as it provides a concrete,
real-world example of the type of scenario that the Panel cautioned might arise if Thailand 's
restrictive interpretation of the scope of the second element of Article 15.1(a) of the CVA was
adopted. The consequence of Thailand's position is that the CVA obligations at issue would apply to
the 1,052 revised NoAs issued by the Customs Department in November 2017, but those obligations
would not apply to the 2002 -2003 Charges issued by the Public Prosecutor in January 2017,
notwithstanding that both the revised NoAs and the Charges rest on the same basis (i.e. the DSI
calculation of the "actual" value of PMTL 's imports of cigarettes based on the cost information in
excise tax form CK-21A) and that both cover overlapping entries.607 Therefore, the facts of this case
are a variation of the hypothetical situation that the Panel alluded to i n the first recourse to
Article 21.5, when it expressed its concern that if Thailand's restrictive interpretation of the second
element of Article 15.1(a) were adopted, then:
A Member's customs administration and law enforcement agency could each undertake
a valuation decision for exactly the same purposes, namely, to establish the value of
goods that should have been used for the purposes of levying customs duties due on
goods at or following the time of their importation. However, while the CVA would apply
to the Member's valuation actions in initially valuing the goods, it would not apply when
the value is re -assessed a second time, after the goods have passed the border. We
agree with the Philippines that such an interpretation would render the CVA worthless,
because Members could evade their CVA obligations simply by having a law enforcement
agency re-assess the values initially determined by the customs administration.608

599 Thailand's opening statement at the meeting of the Panel, paras. 3.16-3.19.
600 Thailand's opening statement at the meeting of the Panel, paras. 3.16 and 3.19.
601 Thailand's response to Panel question No. 171(a), para. 6.27.
602 Thailand's response to Panel question No. 171(a), para. 6.9. (emphasis added)
603 Thailand's response to Panel question No. 171(a), para. 6.9.
604 Thailand's response to Panel question No. 171(a), para. 6.11.
605 Thailand's response to Panel question No. 171(a), para. 6.27.
606 Thailand's response to Panel question No. 171(a), paras. 6.4-6.10.
607 Thailand's response to Panel question No. 138.
608 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.671.

7.327. It is also important to clarify that, contrary to what Thailand's arguments in this case seem
to imply, the Panel's interpretation of the words "for purposes of levying ad valorem duties" does
not lead to the consequence that approximate reference values used f or risk assessment or
guarantees to secure the payment of customs duties are themselves "customs valuation
determinations" that must be calculated in accordance with the customs valuation rules in Article 1
through 7. The reason is that the use of such reference values for these purposes would typically
not reflect any determination of the monetary worth or price of imported goods in a way that would
meet the first element of Article 15.1(a); and as a consequence of not meeting the first element of
Article 15.1(a), they would not be able to serve as the basis for determining the amount of customs
duties that were or are actually due from the importer, in the sense of the amount of customs duties
that should have been or should be collected from the importer, in a way that would satisfy the
second element of Article 15.1(a).
7.328. To elaborate, risk-assessment tools based on "reference" or "minimum" values are
established for the purpose of identifying suspicious imports: these do not, in any way, determine
the amount of ad valorem customs duties actually due. 609 As for gua rantees, the wording of
Article 13 of the CVA makes it clear that they serve the purpose of securing potential future liability
for duties that might be due; a guarantee does not serve the purpose of determining the amount of
ad valorem customs duties actually due. As the original panel explained, the determination of the
amount of a guarantee is not undertaken for the levying of ad valorem duties "due", because a
guarantee is "not the final determination of a customs value of a good".610
7.329. Thus, t he problem with Thailand 's argument is that it presupposes that approximate
reference values used for risk assessment or guarantees to secure the payment of customs duties
entail a determination of the monetary worth or price of imported goods that suffices to meet the
first element of Article 15.1(a)611; and based on that premise, Thailand then argues that it is
necessary to develop a restrictive interpretation of the second element of Article 15.1(a) ( "for
purposes of levying ad valorem duties of customs on imported goods ") to avoid the absurd result
that such values wo uld have to be determined in accordance with the customs valuation rules in
Articles 1 to 7 (which would defeat the purpose of relying on such values in the first place). 612 For
the foregoing reasons, the Panel does not agree with the first underlying premise of this reasoning.
The Panel hereby incorporates by reference the reasoning in Section 7.3.5.3.4 (The consequences
of the Charges) of its Report in the first recourse to Article 21.5.
7.330. Based on the foregoing, the Panel finds that the second element of Art icle 15.1(a) is also
satisfied, and thus reaches the overall conclusion that the 2002-2003 Charges meet both elements
of the definition of "customs valuation" in Article 15.1(a) of the CVA as understood by the Panel in
the first recourse to Article 21.5: (1) l ike 2003 -2006 Charges, the 2002 -2003 Charges fix or
determine the monetary valu e of PMTL 's imported cigarettes by determining the "actual price" of
the 780 entries of cigarettes; and (2) like 2003-2006 Charges, the 2002-2003 Charges rely on this
"actual price" for the purpose of determining the amount of ad valorem duties that were due, and
that should have been paid by the importer at the time of importation, on those imported goods.

609 Thailand explains that "[t]hese tools, which are known as 'valuation databases' or 'reference values',
are widely used by countries around the world and are recommended by the World Customs Organization. The
WTO Technical Committee on Customs Valuation has noted that 'the use of a national valuation database as a
risk assessment tool' was among the list of measures mentioned in the Control Handbook prepared by the
World Customs Organization. Even the Philippines maintains a system of 'reference values' for a wide range of
products, whereby further customs controls are applied whenever the declared import values fall below the
reference values." (Thailand's response to Panel question No. 171(a), para. 6.12 (referring to Committee on
Customs Valuation, Minutes of the meeting of 8 May 2007, G/VAL/M/43, p. 10).)
610 Panel Report, Thailand – Cigarettes (Philippines), para. 7.1041. The Appellate Body confirmed this
determination in paragraphs 215-216 of its report.
611 Thailand's response to Panel question No. 171(a), para. 6.13.
612 In Colombia – Textiles (Article 21.5 – Colombia/Panama), the panel stated, at paragraphs 7.608-609
of its Report, that it did "not find any provision in the text of the relevant articles of the Customs Valuation
Agreement that requires a Member's customs authorities to use the valuation methods established in Articles
1, 2, 3, 5, 6 and 7 of the Agreement in order to determine the coverage of a guarantee that permits goods to
be withdrawn. … the provision of a valuation dispute guarantee must be requested, by definition, before the
final value of the goods has been clarified in accordance with the valuation methods established in the above-
mentioned Articles."

7.3.3.3.5 The "intention to defraud" aspect of the Charges
7.331. The Panel now briefly considers Thailand's comments on the relevance of the Appellate Body'
findings in US -1916 Act to the question of whether the CVA applies to measures that have, as their
core element, the "intention to defraud " the government. While Thailand comments o nly in
passing613, the Panel addresses Thailand 's comment in the interest of clarifying the context and
purpose for which the Panel relied on that reasoning in the Report in the first recourse to Article 21.5.
7.332. Section 27 of the Customs Act makes it a crimina l offense to evade the payment of "duties
on Customs", with the intention to "defraud the government" of the "duties" that are "due on such
goods". Thus, as explained by the Panel in the first recourse to Article 21.5, there are two constituent
elements to the offence under Section 27 of the Customs Act, and to the allegations made against
PMTL in the Charges: (1 ) the first element of the allegation is tha t PMTL did not pay the customs
duties due on the imported goods (actus reus); and (2) the second element of the allegation is that
PMTL did so with the intention to defraud (mens rea).614 In the first recourse to Article 21.5, Thailand
argued that even if the Charges contained a "customs valuation" determination that satisfied both
the first and second elements of Article 15.1(a) , the CVA should nonetheless be found to be
inapplicable to the customs valuation aspect of the Charges as a consequence of the non-applicability
of the CVA to the "intention to defraud " aspect of the Charges. 615 As Thailand put it , "even if the
Charges were to qualify as 'customs valuation', the Charges would still fall outside the scope of the
CVA because the Charges relate to a crimin al accusation that focuses on whether PM Thailand had
the intention to defraud the government".616
7.333. The Panel was not persuaded by Thailand's argument that the CVA would be inapplicable to
the "customs valuation " aspect of the Charges covered by Article 15.1(a) of the CVA as a
consequence of the non-applicability of the CVA to the "intention to defraud" aspect of the Charges.
As explained in greater detail in the Report617, the Panel noted that it is a general principle of WTO
law that, "insofar as a WTO obligation is by its terms applicable to the particular aspect of a domestic
measure being challenged, it does not become inapplicable to that aspect as a consequence of the
same measure containing other aspects that are not regulated by t hat WTO obligation".618 Against
this background, the Panel held that the additional "intent" element under Section 27 of the Customs
Act did not exclude the application of the CVA. To this end, the Panel referred to the Appellate Body's
finding in US – 1916 Act, which found that, because the measure at issue in those proceedings –
the United Stat es' Anti-Dumping Act of 1916 – contained the constituent elements of dumping, it
was subject to the Anti-Dumping Agreement, notwithstanding that it also contained a requirement
that conduct be undertaken with a particular "intent".619
7.334. In this second recourse to Article 21.5, Thailand expresses its disagreement with the Panel's
reliance on the Appellate Body 's analysis in US – 1916 Act. According to Thailand, the Appellate
Body correctly indicated that a measure cannot be excluded from the scope of WTO law si mply
because that measure has components that are not regulated by WTO law. However, Thailand states
that "[i]n the case of criminal charges of customs fraud, however, neither component of the measure
is covered by the CVA ".620 Therefore, in Thailand's view, because the Charges pertain to customs
fraud and do not meet the first or second element of Article 15.1(a), they are, in their entirety, not
covered by the CVA and "the reference to the Appellate Body 's findings in US – 1916 Act in the
Panel's reasoning is equally misplaced".621
7.335. The Panel agrees with Thailand that if the 2003-2006 Charges had not met the two elements
in Article 15.1(a) of the CVA, then they would not reflect a "customs valuation" determination subject
to Articles 1 to 7 of the CVA. The CVA could not be made applicable to the Charges by virtue of any
reasoning in US – 1916 Act. In that sense, it would indeed be "misplaced" to rely on the Appellate

613 Thailand's opening statement at the substantive meeting, para. 3.20.
614 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.674.
615 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.614, 7.674 and
7.676.
616 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.614 and 7.676
(referring to Thailand's response to Panel question No. 47(b), p. 45.)
617 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.677-7.683.
618 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.677.
619 Appellate Body Report, US – 1916 Act, paras. 131-132.
620 Thailand's opening statement at the substantive meeting, para. 3.20.
621 Thailand's opening statement at the substantive meeting, para. 3.20.

Body's findings in US – 1916 Act to reach the conclusion that the CVA applies to the Charge s even
when both elements in Article 15.1(a) of the CVA were not met. However, contrary to what might
be implied by Thailand 's comments in this proceeding, the Panel did not refer to the reasoning in
US – 1916 Act for that purpose and in that sense.
7.336. As explained above, it was Thailand that argued that even if the Charges met both elements
of Article 15.1(a), they would still not be subject to the CVA by virtue of the additional "intention to
defraud" aspect of the Charges. Thailand argued that this was so because that aspect of the Charges
is not regulated by the CVA. The Panel addressed this argument, separately from and only after
having addressed, the question of whether the Charges met the two elements of Article 15.1(a). In
the context of addressing that separate argument, the Appellate Body's reasoning in US – 1916 Act
was relied on because of its pertinence. Insofar as Thailand's comments on that aspect of the Panel's
reasoning are to be construed , in this second recourse to Article 21.5, as a reiteration of the
argument that the Panel was responding to in the first recourse to Article 21.5 , the Panel hereby
incorporates by reference the reasoning in Section 7.3.5.3.5 (The 'intention to defraud ' aspect of
the Charges) of the Panel Report in the first recourse to Article 21.5.
7.3.3.4 Conclusion
7.337. Based upon the findings above, the Panel concludes that the substantive obligations relating
to customs valuation in Articles 1 to 7 of the CVA apply to 2002-2003 the Charges.
7.3.4 Claims under Articles 1.1 and 1.2(a), second sentence, and Articles 6 and 7 of the
CVA
7.3.4.1 Introduction
7.338. In the first recourse to Article 21.5, the Panel found that the 2003 -2006 Charges were
inconsistent with Articles 1.1 and 1.2(a) of the CVA because they reject ed PMTL's dec lared
transaction values without a valid basis, and in particular that the Public Prosecutor acted
inconsistently with Article 1.2(a), second sentence, by not engaging in an examination of the
circumstances of sale that was apt to reveal whether the relati onship between PMTL and PMPMI
influenced the price paid by PMTL. The Panel additionally found that the 2003-2006 Charges were
inconsistent with Article 2.1(a) and (b) of the CVA, or in the alternative Article 3.1(a) and (b) of the
CVA, because they improperly treat ed the purchase prices of duty -free operator (King Power) as
transaction values for "identical" or "similar" goods.622 The Panel did not consider it necessary to
resolve whether the revised cus toms value was based on Article 2 (iden tical goods) or instead
Article 3 (similar goods) of the CVA, and made findings of inconsistency in the alternative.
7.339. In this second recourse to Article 21.5 , the Philippines similarly claims that the 2002-2003
Charges violate Articles 1.1 and 1.2(a) of the CVA, because they reject PMTL's declared transaction
values without a valid basis, and that the revised customs value violates the applicable CVA
obligations governing the use of the computed value benchmarks. The P hilippines understands the
relevant CVA rules to be those set forth in Article 6, but also makes an alternative claim in respect
of Article 7. It argues that the Thai authorities' comparison of PMTL's declared transaction values
with the benchmark price that the Thai authorities construc ted on the basis of pricing and cost
information reported by PM Indonesia in the CK-21A forms is inconsistent with the CVA, regardless
of whether it was relied upon for the purpose of determining: (1) whether the transaction value was
influenced by the relationship between the buyer and the seller pursuant to Article 1.2(a), second
sentence, of the CVA; or (2) the "price actually paid or payable" within the meaning of Article 1.1 of
the CVA; and/or (3) a revised customs value based on Article 6 of the CVA; or (4) a revised customs
value based on Article 7 of the CVA.623
7.340. The Panel has already addressed the fundamental premises underlying the Philippines'
claims. In Section 7.2 (The Thai authorities' reliance on the information in the CK-21A forms) above,
the Panel concluded that (1) as result of the regulatory constraints mandated by Indonesian excise
tax law, the CK -21A forms could not represent PM Indonesia's actual costs and profits, and
necessarily erred on the side of oversta ting the actual costs and profits of PM Indonesia and other

622 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), Section 7.3.6
(Consistency of the Charges with CVA disciplines) and para. 8.2.
623 Philippines' response to Panel question No. 141, paras. 113-118.

parties involved in the supply chain; and (2) there may be cases in which the customs authority in
the importing country is entitled to assume that pricing and cost information obtained from a foreign
government is accurate and truthful, but in this case the DSI and Public Prosecutor had no basis
upon which to ass ume that the CK-21A information was reliable in the light of PMTL's repeated
written explanations as to why it was not.
7.341. Although the Panel has upheld these premises, this does not necessarily dispose of the
Philippines' claims under the substantive CVA provisions referred to above. That is because the Panel
must still consider the matter before it in the light of the particular legal standards that arise under
the substantive obligations in Articles 1.1 and 1.2(a) second sentence, and under Articles 6 and 7 of
the CVA. The parties disagree on several issues relating to the interpretation of these legal
standards, some of which the Panel has already addressed earlier in its analysis. 624 The Panel will
address these issues to the extent necessary to reach a conc lusion on the CVA -consistency of the
2002-2003 Charges.
7.3.4.2 Analysis by the Panel
7.3.4.2.1 General considerations
7.342. Article 1.1 of the CVA states that:
The customs value of imported goods shall be the transaction value, that is the price
actually paid or payable for the goods when sold for export to the country of importation
adjusted in accordance with the provisions of Article 8…
7.343. Subparagraph 1.1(d) includes the relevant proviso that the customs value of imported goods
shall be the transaction value ( that is the pri ce actually paid or payable ) provided that "the buyer
and seller are not related, or where the buyer and seller are related, that the transaction value is
acceptable for customs purposes under the provisions of paragraph 2". PMTL and PM Indonesia are
"related"625, and thus it would a priori be WTO-consistent for the Thai authorities to reject PMTL's
declared transaction value if it were deemed unacceptable pursuant to Article 1.2.
7.344. Article 1.2(a) of the CVA elaborates two distinct but related obligations, in its second and
third sentences. It states that:
In determining whether the transaction value is acceptable for the purposes of
paragraph 1, the fact that the buyer and the seller are related within the meaning of
Article 15 shall not in itself be grounds f or regarding the transaction value as
unacceptable. In such case the circumstances surrounding the sale shall be examined
and the transaction value shall be accepted provided that the relationship did not
influence the price. If, in the light of information provided by the importer or otherwise,
the customs administration has grounds for considering that the relationship influenced
the price, it shall communicate its grounds to the importer and the importer shall be
given a reasonable opportunity to respond . If the importer so requests, the
communication of the grounds shall be in writing.
7.345. Thus, Article 1.1 provides that, in principle, a customs authority must use the transaction
value of the imported goods as the customs value. Article 1.1(d) read in conju nction with
Article 1.2(a) clarifies that this applies also in situations in which the buyer and the seller are related,
unless it is established that the relationship influenced the price. If a customs authority has doubts
as to whether the relationship b etween the buyer and seller affecte d the price, then under
Article 1.2(a), second sentence, the customs authority must examine the circumstances surrounding

624 See Section 7.1.4.3 above (Relevance of the presumption of good faith to the interpretation of CVA
obligations).
625 The Panel recalls the original panel's finding that "[t]he Philippines agrees that PM Thailand and PM
Philippines are related within the meaning of Article 15.4(f) of the Customs Valuation Agreement, because they
are both directly or indirectly controlled by a third person, PM International." (Panel Report, Thailand –
Cigarettes (Philippines), footnote 460)

the sale, and the customs authority may reject the transaction value if it establishes that the
relationship influenced the price.
7.346. The CVA does not prescribe the methodology that the customs administration must use to
conduct its examination of the circumstances of sale for purposes of Article 1.2(a). In that respect,
paragraph 3 of the Interpretative Note to Article 1.2 provides a non-exhaustive list of "example[s]"
of how the examination may be conducted. 626 Each of these examples contemplates a comparison
between some aspect of the circumstances of the transaction under consideration, and some
comparator or benchmark. Paragraph 3 envisages that one such comparator or benchmark could be
a comparison of declared transaction value with a constructed price based on "all costs plus a profit".
Thus, a comparison between the transaction value and a properly established "cost-plus" benchmark
can shed light on whether the relationship between the buyer and seller influenced the price.
Specifically, if the transaction value is lower than such a benchmark, this would suggest the producer
is selling to the buyer at a price insufficient to cover the costs of production for the goods, plus
profits, and that would be an indication that the price may have been influenced by the relationship
between the parties (unless there is some valid commercial reason for the failure to recover costs
and make a profit).
7.347. Article 6 of the CVA provides an alternative basis for customs valuation based on a cost -
plus, or computed value, methodology. It is the penultimate methodology in the hierarchy set out
in Articles 2 to 7 of the CVA; and an administration may only have recourse to Article 6 if it cannot
calculate customs value using the methodologies set out in Articles 1 to 5. Article 6 provides for the
calculation of a computed value, based on the sum of: (1) the cost of producing the imported goods;
(2) an amount for profit and general expenses; and (3) the cost or value of all other expenses
necessary to reflect the valuation option chosen by the Member under paragraph 2 of Article 8. The
Interpretative Note to Article 6 also incorporates certain aspects of Article 8, which provides further
detail on the specific costs that must be included in a computed value.
7.348. The text of Article 6.1 reads as follows:
The customs value of imported goods under the provisions of this Article shall be based
on a computed value. Computed value shall consist of the sum of:
(a) the cost or value of materials and fabrication or other processing employed
in producing the imported goods;
(b) an amount for profit and general expenses equal to that usually reflected
in sales of goods of the same class or kind as the goods being valued which are
made by producers in the country of exportation for export to the country of
importation;
(c) the cost or value of all other expenses necessary to reflect the valuation
option chosen by the Member under paragraph 2 of Article 8.
7.349. Paragraphs 1 through 8 of the Interpretative Note to Article 6 elaborate in detail on certain
aspects of the computed value meth od. Notably, paragraph 2 of the Interpretative Note mandates
that:
The "cost or value" referred to in paragraph 1(a) of Article 6 is to be determined on the
basis of information relating to the production of the goods being valued supplied by or
on behalf of the producer. It is to be based upon the commercial accounts of the
producer, provided that such accounts are consistent with the generally accepted
accounting principles applied in the country where the goods are produced.

626 The three examples of an examination of the circumstances of sale given in Paragraph 3 of the
Interpretative Note to Article 1.2(a) are: (1) if the price had been settled in a manner consistent with the
normal pricing practices of the industry in question; (2) if the price had been settled in a manner consistent
with the way the seller settles prices for sales to buyers who are not related to the seller; and (3) where it is
shown that the price is adequate to ensure recovery of all costs plus a profit which is representative of the
firm's overall profit realized over a representative period of time (e.g. on an annual basis) in sales of goods of
the same class or kind.

7.350. Article 7 of the CVA provides for reasonable flexibilities in the event that the customs value
cannot be determined on the basis of any of the preceding methods. The text of Article 7 reads as
follows:
1. If the customs value of the imported goods cannot be determined under the
provisions of Articles 1 through 6, inclusive, the customs value shall be determined
using reasonable means consistent with the principles and general provisions of this
Agreement and of Article VII of GATT 1994 and on the basis of data available in the
country of importation.
2. No customs value shall be determined under the provisions of this Article on the
basis of:
(a) the selling price in the country of importation of goods produced in such
country;
(b) a system which provides for the acceptance for custo ms purposes of the
higher of two alternative values;
(c) the price of goods on the domestic market of the country of exportation;
(d) the cost of production other than computed values which have been
determined for identical or similar goods in accordance with the provisions
of Article 6;
(e) the price of the goods for export to a country other than the country of
importation;
(f) minimum customs values; or
(g) arbitrary or fictitious values.
3. If the importer so requests, the importer shall be inform ed in writing of the
customs value determined under the provisions of this Article and the method used to
determine such value.
7.3.4.2.2 Claims under Article 1.1 and Article 1.2(a), second sentence
7.351. The Panel will first consider the Philippines's claims that the 200 2-2003 Charges violate
Article 1.1 and 1.2(a), second sentence, by rejecting PMTL's declared transaction values without any
valid basis. The Philippines argues that the Thai authorities' comparison of PMTL's declared
transaction values with the benchmark p rice that the Thai authorities constructed on the basis of
pricing and cost information reported by PM Indonesia in the CK-21A forms is inconsistent with the
CVA, regardless of whether it was relied upon for the purpose of determining: (1) whether the
transaction value was influenced by the relationship between the buyer and the seller pursuant to
Article 1.2(a), second sentence, of the CVA; or (2) the "price actually paid or payable" within the
meaning of Article 1.1 of the CVA.
7.3.4.2.2.1 Claim under Article 1.2(a), second sentence
7.352. The parties disagree on several issues relating to the legal standard under Article 1.2(a),
second sentence, in the context of an examination of the circumstances of sale that involves a
benchmark price based on the computed value of the goods. In general, the disputed issues relate
to how much leeway and discretion an authority has, and whether some or all of the specific
requirements of Article 6 (or other CVA provisions and interpretative notes that are not expressly
cross-referenced in Article 1.2(a)) apply, if not directly then as relevant interpretative context, for
the examination of the circumstances of sale under Article 1.2(a).
7.353. In its first written submission, the Philippines argues that where a customs authority relies
on a benchmark price based on the computed value of the goods for the purpose of its examination
of the circumstances of sale under Article 1.2(a), it is legally obliged to respect a number of rules.

In its view, these rules limit a customs authority's discre tion, and inform the interpretation of the
phrase "all costs plus a profit", which is found in the last sentence of paragraph 3 of the Interpretative
Note to Article 1.2(a). The Philippines offers the following interpretation:
a. an examination of the circumstances of sale must involve a process of consultation627;
b. the "detailed rules" of Article 6 of the CVA and its Interpretative Notes, which regulate the
construction of a cost -plus value also known as the "computed value", are important
context in interpreti ng and applying Paragraph 3 of the Int erpretative Note to
Article 1.2628;
c. in accordance with Article 8, the cost -plus benchmark under Paragraph 3 of the
Interpretative Note to Article 1.2 must also include costs of containers, packing, materials,
tools, dies, engineering, development, artwork, etc.629;
d. the information considered in the cost-plus benchmark in Paragraph 3 of the Interpretative
Note to Article 1.2 must follow the Generally Accepted Accounting Principles (GAAP)
because of an overarching obligation to do so as reflected in the GAAP Interpretative
Note630;
e. based on Paragraphs 2 and 5 the Interpretative Note to Article 6, for the determination of
the cost -plus benchmark under Paragraph 3 of the Interpretative Note to Article 1.2,
authorities must use only (1) information that relates to goods being valued, that was
(2) provided by or on behalf of the producer and (3) based on commercial accounts of the
producer631;
f. finally, on the use of "objective and accurate information", the Philippines also proposes
to incor porate the standards reflected in "[n]umerous other CVA provisions", namely
Articles 2.1(b), 3.1(b), 7.2, Paragraph 5 of the Interpretative Note to Articles 2.1(b) and
3.1(b), Paragraph 11 of the Interpretative Note to Article 5, Paragraph 1 of the
Interpretative Note to Article 8.1(b)(iv), Article 8.3, Paragraph 1 of the Interpretative Note
to Article 8.3, Article 17, and Paragraph 6 of Annex III.632
7.354. Thailand responds that this is a "wish list" that lacks any textual support in the CVA. 633 It
emphasizes that Paragraph 3 of the Interpretative Note to Article 1.2(a) "provides no guidance on
how to apply the test of 'adequate to ensure recovery of all costs plus a profit'" .634 It recalls the
Panel's reflection of the parties' agreement, in the first recourse to Art icle 21.5, that Article 1.2(a)
"does not prescribe a specific process for customs authorities to follow", and that the customs
authority "has a degree of discretion in deciding how to conduct its examination". 635 Thailand also
relies on the Panel's conclusio n in the first recourse to Article 21.5 that the "essential requirement
under Article 1.2(a), second sentence, is that an examination of circumstances of sale must be apt
to reveal whether the relationship between the buyer and seller influenced the price" .636 Thailand
refers to the Panel's statement that "[g]iven the discretion that the CVA accords to the customs
authority in determining its approach to examining the circumstances of sale", the Panel did "not
consider it appropriate to indicate in the abstra ct any specific principles, beyond those articulated
above, that would bind a customs authority in any and all situations".637 In the light of the foregoing,
Thailand argues that the "a uthorities need not follow to the letter other CVA disciplines governing
the c alculation of costs and profit", and " certainly need not follow the long list of obligations
suggested by the Philippines".638

627 Philippines' first written submission, paras. 164-168.
628 Philippines' first written submission, paras. 182–188.
629 Philippines' first written submission, paras. 189–194.
630 Philippines' first written submission, paras. 195–205.
631 Philippines' first written submission, paras. 206–212.
632 Philippines' first written submission, paras. 213–215.
633 Thailand's first written submission, para. 3.56.
634 Thailand's first written submission, para. 3.68.
635 Thailand's first written submission, para. 3.83.
636 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.107.
637 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.105.
638 Thailand's first written submission, para. 3.85.

7.355. The Panel notes that in the context of the first recourse to Article 21.5, it relied on other
CVA provisions, inclu ding the Interpretative Notes to Articles 5 and 6, as relevant interpretative
context when reviewing the BoA's examination of the circumstances of sale under Article 1.2(a). In
that case, the authority's examination of the circumstances of sale involved a benchmark relating to
PMTL's "profits and general expenses" ("P&GE"), and the Panel found that the obligations in Article
6 regarding this same term were "instructive" in informing the legal standard under Article 1.2(a).
The Panel explained that:
We reco gnize that the methodology for conducting a computed value calculation
pursuant to Article 6 differs from an examination of the circumstances of sale pursuant
to Article 1.2(a), second sentence. Nevertheless, this guidance in the context of a
computed valu e calculation strongly suggests that similar considerations should be
taken into account in conducting an examination of the circumstances of sale under
Article 1.2(a), where such an examination involves a comparison of P&GE rates, given
that the interpretative note directly governs a determination of a proxy P&GE rate to be
used in determining customs value.639
7.356. Having said that, the Panel considers it unnecessary to resolve the parties' disagreement
over the extent to which the detailed rules in Article 6 go verning the computed value method, and
other CVA provisions referred to by the Philippines, should inform the examination of the
circumstances of sale under Article 1.2(a) based on a cost-plus benchmark. The reason is that both
parties agree that an authority's examination of the circumstances of sale under Article 1.2(a) must,
at minimum, be apt to reveal whether the relationship between the buyer and seller influenced the
price. In the circumstances of this case, the nature of the information contained in the CK-21A form
and the manner in which the Thai authorities relied on that information clearly did not meet that
minimum standard, regardless of whether other CVA provisions are taken into account as context.
7.357. First, the Panel has found that, as result o f the regulatory constraints mandated by
Indonesian excise tax law, the figures in the CK-21A forms could not represent PM Indonesia's actual
costs and profits, and necessarily erred on the side of overstating the actual costs and profits of PM
Indonesia and other parties involved in the supply chain. 640 The Panel accepts that a comparison
between the transaction value and a properly established cost -plus benchmark can shed light on
whether the relationship between the buyer and seller influenced the price, because if the transaction
value is lower than such a benchmark, this would suggest the producer is selling to the buyer at a
price insufficient to cover the costs of production for the goods, plus profits. However, the validity
of this means of examining the circumstances of sale depends on the cost -plus benchmark being
properly established, so that it provides an accurate and reliable reflection of the producer's costs
and profits.
7.358. Second, the Panel found that in the circumstances of this case, the DSI and Public Prosecutor
had no basis upon which to assume that the CK-21A information was reliable in the light of PMTL's
repeated written explanations as to why it was not. 641 Thailand acknowledges that the information
that its authorities relied upon "was not subsequently verified in terms of its accuracy" .642 The
original panel has clarified that when the customs authorities receive relevant information from an
importer, the requirement to conduct an "examination" of the circumstance s of sale requires " an
active, critical review and consideration of the information before them ".643 As recalled earlier, in
the first recourse to Article 21.5, the Panel explained that "i f the customs authority failed to take
into acco unt" relevant information provided by the importer, " the customs authority would
essentially be failing to conduct an examination of the circumstances of sale that is apt to reveal
whether the relationship influenced the price".644
7.359. Based on the foregoing, the Panel finds that insofar as the Thai authorities relied on pricing
and cost information reported by PM Indonesia to the Indonesian tax authorities in the CK-21A forms

639 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.165.
640 See Section 7.2.2 (The nature of the cost information reported in the CK-21A forms).
641 See Section 7.2.3 (The circumstances surrounding the Thai authorities' reliance on the CK-21A
forms).
642 Thailand's first written submission, para. 3.110.
643 Panel Report, Thailand – Cigarettes (Philippines), para. 7.171.
644 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), footnote 592.

for the purpose of determining whether the transaction value was influenced by the rela tionship
between the buyer and the seller, this determination was inconsistent with Article 1.2(a), second
sentence, which entails a consequential violation of Article 1.1.645
7.3.4.2.2.2 Alternative claim under Article 1.1
7.360. As discussed at length earlier in the context of the Panel's analysis of the meaning of the
2002-2003 Charges, the parties have different understandings of what the "actual price" refers to.646
For the reasons set forth earlier, the Panel considers that the circumstances surrounding the 2002-
2003 Charges suggest that the Philippines has demonstrated prima facie that the "actual price" in
the 2002-2003 Charges refers to the revised customs value that was calculated using the computed
value methodology under Ar ticles 6 and/or 7 of the CVA, and not, as Thailan d suggests, a
determination of the "price actually paid or paya ble" for the goods in question. However , the facts
are not entirely clear on this point, and the Panel makes the following alternative finding u nder
Article 1.1, based on the arguendo assumption that the 2002-2003 Charges determine the "price
actually paid or payable".
7.361. The Panel considers that an authority enjoys a margin of discretion in how it determines the
"price actually paid or payable" within the meaning of Article 1.1, just as the authority enjoys a
margin of discretion in how it conducts its "examination of the circumstances of sale" in the context
of Article 1.2(a). The existence of certain parallels in the minimum requirements for each provision
does not mean that the methods of enquiry used under Article 1.2(a) are equally appropriate under
Article 1.1.647 However, the obligations in Articles 1.1 and 1.2(a), second sentence, are interrelated
in a way that make s it illogical for an investigating authority to be free to disregard the minimum
requirements of the examination under Article 1.2(a) when seeking to determine the "price actually
paid or payable" under Article 1.1. In this regard, it bears recalling that Article 1.2(a) and Article 1.1
not only comprise part of the same article, but are interrelated such that a violation of Article 1.2(a)
necessary implies a violation of Article 1.1. Thus, the Panel considers that the chosen means or
methodology must be capable of, and suitable for, revealing whether the declared transaction price
corresponds to the "price actually paid or payable". Accordingly, the Panel's reasoning above
regarding the claim under Article 1.2(a) second sentence applies mutatis mutandis.
7.362. Based on the foregoing, the Panel finds that insofar as the Thai authorities relied on pricing
and cost information reported by PM Indonesia to the Indonesian tax authorities in the CK-21A forms
for the purpose of determining the "price actually paid or payable" , this was i nconsistent with
Article 1.1 of the CVA.
7.3.4.2.3 Claims under Article 6.1 and/or Article 7.1
7.3.4.2.3.1 Claim under Article 6.1
7.363. The Panel understands Thailand's position to be that any revised customs value determined
by the Thai authorities was determined on the basis of the reasonable flexibilities in Article 7, and
not on the basis of the detailed rules set forth in Article 6. Thailand appears to implicitly acknowledge
that this determination would not satisfy the detailed requirements of Article 6, if that were the
applicable provision (which, in its view, it is not).648
7.364. The Panel notes that Article 6 and its related Interpretati ve Notes establish a number of
detailed rules regarding the use of computed values, which potentially raise a number of
interpretative issues. These issues include the extent to which the authorities in the importing
country can obtain a producer's cost in formation from third parties, rather than directly from the
producer itself. In this connection, Paragraph 1 of the Interpretative Note to Article 6 states that the

645 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.103 (stating
that "[t]here is no disagreement between the parties that if the BoA's examination of the circumstances of sale
was not in accordance with the substantive requirements contained in the second sentence of Article 1.2(a),
then it would automatically entail a consequential violation of Article 1.1. In accordance with the findings of the
original panel, we proceed on that basis.")
646 See Section 7.3.3.3.3 (The meaning of the Charges).
647 See Philippines' response to Panel question No. 142; the European Union's response to Panel
question No. 15 to third parties.
648 Thailand's response to Panel question No. 156.

computed value method will "generally be limited to those cases where … the producer is pre pared
to supply to the authorities of the country of importation the necessary costings", and Paragraph 2
provides that the "cost or value" is to be determined on the basis of information relating to the
production the goods being valued "supplied by or on behalf of the producer". However, Paragraph
6 of the Interpretative Note contemplates that there could be cases in which "information other than
that supplied by or on behalf of the producer is used"; and the wording of Paragraph 6 further
envisages that, in such cases, the confidentiality provisions of Article 10 may prevail over the
importer's right to be informed of the source, data used and related calculations.
7.365. While recognizing the importance of these issues , the Panel conside rs it unnecessary to
engage in a comprehensive interpretation of the requirements of Article 6 in the circumstances of
this case. The reason is that both parties seem to agree that an authority's examination of the
circumstances of sale under Article 1.2(a) must, at minimum, be based on the producer's actual
costs, and that when applying Article 6, the authority in the importing country is under an obligation
to verify the accuracy of those costs. In the circumstances of this case, the nature of t he CK-21A
information and the Tha i authorities' examination of that information clearly did not meet that
minimum standard, regardless of whether other detailed requirements of Article 6 were complied
with.
7.366. First, the Panel has found that, as result of the regulatory constraints mandated by
Indonesian excise tax law, the CK -21A forms could not represent PM Indonesia's actual costs and
profits, and necessarily erred on the side of overstating the actual costs and profits of PM Indonesia
and other parties involved in the supply chain. 649 There may well be circumstances in which the
information before an authority justifies the use of estimated costs 650, or in which judgement must
be exercised in the context of allocating costs across different product lines. 651 However, the Panel
does not understand Thailand to argue that the "costs" relied upon under Article 6 for the purpose
of determining a revised customs value could include cost figures that are known to overstate the
actual costs of the producer. The Panel considers it abundantly clear form t he text of Article 6 and
the wider context of the CVA that the "[t]he object [of Article 6] is to find the actual figures relating
to the production of the imported goods being valued".652
7.367. Second, the Panel found that in the circumstances of this case, the DSI and Public Prosecutor
had no basis upon which to assume that the CK-21A information was reliable in the light of PMTL's
repeated written explanations as to why it was not. 653 The Panel u nderstands Thailand to accept
that, when applying Article 6, the authority in the importing country is under an obligation to verify
the accuracy of those costs. This understanding stems from Thailand's argument that "[t]he specific
flexibility is that the Public Prosecutor relied on information that, although it was provided by [PM
Indonesia] to Indonesian authorities, was not subsequently verified in terms of its accuracy".654 The
logical implication of Thailand's argument is that subsequent verification in terms of the accuracy of
the information would have been required pursuant to Article 6.655

649 See Section 7.2.2 (The nature of the cost information reported in the CK-21A forms).
650 According to Sherman and Glashoff, "[i]n some circumstances, so-called 'standard costs' estimated
in advance of actual production may be the most appropriate or even the only available basis for use in
customs valuation, as they often are in making commercial pricing decisions." (Saul L. Sherman and Hinrich
Glashoff, Customs Valuation: Commentary on the GATT Customs Valuation Code (ICC Publishing S.A./Kluwer
Law and Taxation Publishers, 1988), p. 228.)
651 The Appellate Body has addressed the meaning of "costs associated with the production and sale of
the product under consideration" in the first sentence of Article 2.2.1.1 of the Anti-Dumping Agreement. The
Appellate Body found that these treaty terms refer to costs incurred by the investigated exporter or producer
that correspond to or reproduce the costs "that have a genuine relationship" with the production and sale of
the specific product under consideration. (Appellate Body Report, EU – Biodiesel, paras. 6.22 and 6.30.)
652 Saul L. Sherman and Hinrich Glashoff, Customs Valuation: Commentary on the GATT Customs
Valuation Code (ICC Publishing S.A./Kluwer Law and Taxation Publishers, 1988), p. 228.
653 See Section 7.2.3 (The circumstances surrounding the Thai authorities' reliance on the CK-21A
forms).
654 Thailand's first written submission, para. 3.110.
655 The Panel notes that Thailand's position is not entirely clear. The Panel asked Thailand whether its
argument under Article 7 meant that it "accepts that, insofar as the Public Prosecutor determined a revised
customs value (i.e. assuming arguendo that there was a determination of a revised customs value at all, as
opposed to a determination only of "the price actually paid or payable"), it was determined in a manner
inconsistent with Article 6 of the CVA". Thailand responded that because the valuation was made under

7.368. Based on the foregoing, the Panel finds that insofar as the Thai authorities relied on pricing
and cost information reported by PM Indonesia to the Indonesian tax authorities in the CK-21A forms
for the purpose of determining a revised customs value using the computed value method under
Article 6, this was inconsistent with Article 6 of the CVA.
7.3.4.2.3.2 Alternative claim under Article 7.1
7.369. Thailand maintains that the detailed rules in Article 6 are inapplicable to any determination
of the rev ised customs value in this case , because any such determination applied the computed
value method with "a reasonable flexibility" as permitted by Article 7.
7.370. The Panel accepts that there could be cases in which a customs authority determines a
revised customs value on the basis of a computed value method that deviates from the strict
requirements of Article 6. The Panel is mindful of Article 7.2(d), which provides that no customs
value shall be determined on the basis of the cost of production "other than computed values which
have been determined for identical or similar goods in accordance with the provisions of Article 6".
However, the Panel does not read this language to mean that no deviation from the strict rules of
Article 6 is ever permissible; rather, Article 7.2(d) appears to envisage that in appropriate cases the
rules of Article 6 may be applied with reasonable flexibility, but clarifies that any computed values
must nonetheless relate either to identical goods, as defined in Article 15.2(a), or to similar goods,
as defined in Article 15.2(b).
7.371. While recognizing that there could be cases in which a customs authority uses Article 7 to
determine a revised customs value on the basis of a computed value method that deviates from the
strict requirements of Article 6, the Panel agrees with the Philippines that it is unnecessary to decide
"on the precise scope or extent of the flexibilities that are available " to a customs administr ation,
under Article 7 of the CVA, in calculating a computed value.656 The reason is that any determination
made pursuant to Article 7 must, at minimum, use "reasonable means consistent with the principles
and general provisions of this Agreement", and canno t be determined on the basis of "arbitrary or
fictitious values". In the circumstances of this case, the nature of the information contained in the
CK-21A forms and the manner in which the Thai authorities relied on that information clearly did not
meet these minimum standards. Secondly, and contrary to Thailand's argument, the reasonable
flexibilities of Article 7.1 do not extend to exempting an authority from engaging in proper
consultation with the importer and/or allowing it to rely on information without verifying its accuracy.
7.372. First, the Panel has found that the nature of the information contained in the CK-21A forms
was such that the Thai authorities' chosen means or methodology was incapable of, and unsuitable
for, revealing whether the relationship between PMTL and PM Indonesia influenced the price , or
whether the declared transaction price corresponds to the price actually paid or payable. The Panel
considers that, a fortiori, reliance on such information to determine a revised customs value for
PMTL's imported cigarettes cannot be a "reasonable means consistent with the principles and general
provisions" of the CVA. Furthermore, the Panel considers that its finding that the CK-21A forms could
not represent PM Indonesia's actual costs and profits, and necessarily erred on the side of overstating
the actual costs and profits of PM Indonesia and other parties involved in the supply chain, is
tantamount to characterizing the figures relied upon by the Thai authorities as "arbitrary or fictitious"
values in the sense of Article 7.2(g) of the CVA.
7.373. Second, Thailand's argumentation under Article 7.1 is that "[t]he specific flexibility is that
the Public Prosecutor relied on information that, although it was provided by [PM Indonesia] to
Indonesian authorities, was not subsequently verified in terms of its accuracy". 657 The Panel
understands Thailand to be arguing that the process of consultation discussed at length by the
original panel and the Panel in the first recourse to Article 21.5, which is normally required in the
context of applying Article 6, may be dispensed with in certain circumstances in the context of using
"reasonable flexibility" under Article 7. However, insofar as this is what Thailand is arguing, it
appears to contradict the find ings of the original panel, which suggested that this consultative

Article 7.1, this meant that the valuation decision must only be assessed under Article 7.1 and would not mean
that it was inconsistent with Article 6. (Thailand's response to Panel question No. 156, para. 8.1.)
656 Philippines' response to Panel question No. 170, para. 32.
657 Thailand's first written submission, para. 3.110.

process is part and parcel of "using reasonable means consistent with the principles and general
provisions of this Agreement". Specifically, the panel stated that:
Although the first sentence of paragraph 2 refers to "value under the provisions of Article
2 or 3", we consider that the spirit of the Customs Valuation Agreement envisaged under
this paragraph, namely the determination of customs value through a process of
consultation between the customs administration and importer, equally applies to other
valuation methods. The phrase "using reasonable means consistent with the principles
and general provisions of this Agreement" in Article 7.1 also supports this view. As the
Philippines submits, while the importer is the party that typically possesses relevant
information for a deductive calculation, it is the customs authority that knows the
specific information necessary to accept the requested deductions. Viewed in this light,
it is diffic ult to conceive that the drafters of the Agreement would have intended a
process of consultation between the customs administration and importer to be limited
solely to the valuation process under Article 2 or 3.658
7.374. The Panel in the first recourse to Article 21.5 agreed, and proceeded on the understanding
that "the obligation to conduct consultations is integral to the manner in which the customs authority
applies the deductive value method".659
7.375. Based on the foregoing, the Panel finds that insofar as the Thai authorities relied on pricing
and cost information reported by PM Indonesia to the Indonesian tax authorities in the CK-21A forms
for the purpose of determining a revised customs value using the reasonable flexibilities under
Article 7, this was inconsistent with Article 7 of the CVA.
7.3.4.3 Conclusion
7.376. In sum, the Panel finds that it was improper for the DSI and the Public Prosecutor to rely on
pricing and cost information reported by PM Indonesia to the Indonesian tax authorities in the CK-
21A forms for purposes of determining the customs value of PMTL's imports into Thailand, regardless
of whether it was relied upon for the purpose of determining: (1) whether the transaction value was
influenced by the relationship between the buyer and the s eller pursuant to Article 1.2(a), sec ond
sentence, of the CVA; or (2) the "price actually paid or payable" within the meaning of Article 1.1 of
the CVA; and/or (3) a revised customs value based on Article 6 of the CVA; or (4) a revised customs
value based on Article 7 of the CVA. The Panel finds that by doing so, the 2002-2003 Charges reflect
a customs valuation determination that is inconsistent with Article 1.1 and Article 1.2(a), second
sentence, insofar as it is a determination that the price actually p aid or payable was influenced by
the relationship between PMTL and PM Indonesia; with the substantive obligations in Article 1.1
insofar as it is a determination of "the price actually paid or payable"; with Article 6, insofar as it is
a determination of a revised customs value based on the computed value method; and/or with Article
7, insofar as it is a determination of a revised customs value on the basis of the reasonable
flexibilities provided for in that provision.
7.377. In the absence of any contemporaneous explanation from the Thai authorities, it is
impossible to say with any certainty which of these determinations was made. However, it ultimately
makes no difference to the Panel's assessment . Regardless of which of th ese types of alternative
determinations the "actual price" is supposed to represent, the Panel reaches the same conclusion
of WT O-inconsistency, for essentially the same reasons . Therefore, th e Panel considers it
unnecessary to rule on which of these alternative determinations the "actual price" represents in the
context of the 2002-2003 Charges.660

658 Panel Report, Thailand – Cigarettes (Philippines), para. 7.327. (emphasis original)
659 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.337.
660 The Panel followed a similar course in the first recourse to Article 21.5, when it found that the
2003-2006 Charges reflected a revised customs value that was inconsistent with Articles 2 and/or 3 of the
CVA. Although that revised customs value could only be based on one of these provisions, the Panel considered
it unnecessary to rule on whether the Public Prosecutor used the method in Article 2, or instead Article 3. Thus,
the Panel made alternative findings. (Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 –
Philippines), paras. 7.728 and 7.731.)

7.3.5 Claim regarding sequential application of valuation methods
7.3.5.1 Introduction
7.378. As the Panel observed in the first recourse to Article 21.5, " the CVA elaborates on the
rudimentary provisions of Article VII by establishing a comprehensive system for customs valuation,
comprising a series of multiple different steps and methods subject to detailed rules governing their
sequential application".661 One of the fundamental and integral rules of this system is the obligation
to respect the sequential order of application of the methods in Articles 1 through 7.
7.379. In the first recourse to Article 21.5, the Panel found that the 2003 -2006 Charges rejected
PMTL's transaction values under Articles 1.1 and 1.2(a), and then determined a revised value on the
basis of the Articles 2 and/or 3 of the CVA. While the Panel found this customs valuation
determination to be flawed and rest on an invalid basis, it appeared to follow the sequential
application of customs valuation methods. The Panel was not presented with any claim or issue
regarding the sequential application of customs valuation methods in connection with either of the
measures at issue, i.e. the 2003-2006 Charges or the November 2012 BoA Ruling.662
7.380. In this second recourse to Article 21.5, the Philippines claims that the 2002 -2003 Charges
reject PMTL's transaction values under Articles 1.1 and 1.2(a), and determine a revised value on the
basis of Articles 6 and/or 7 of the CVA. In addition to its claims of violations under these provisions,
which the Panel has already considered and upheld, the Philippines claims that the Thai authorities
did not respect the sequential application of customs valuation methods by jumping directly to the
computed value method under Article 6 without first seeking to use th e valuation methods in
Articles 2, 3 or 5.663
7.381. Thailand accepts that the customs valuation methods in Articles 1 to 7 must be applied
sequentially, but submits that the present case involves special circumstances in which none of the
prior alternative methods in Articles 2, 3 or 5 could be used to dete rmine the customs value of
PMTL's imports.664
7.3.5.2 Main arguments of the parties
7.382. According to the Philippines, the Public Prosecutor "failed to provide any explanation for
jumping directly to a computed value under Article 6, and not using the methods in Articles 2, 3 and
5".665 The Philippines recalls that, according to the panel findings in the original proceeding and the
first recourse to Article 21.5, where a customs administration has not provided a reasoned and
adequate explanation to support its determinatio n, "the panel has no option but to find that the
[customs administration] has not performed the analysis correctly ".666 In response to Thailand's
assertion that none of the prior methods could be used, the Philippines submits that Thailand
engages in "a n imp roper and unsubstantiated ex post justification of the Public Prosecutor 's
actions".667 It submits that Thailand has been unable to substantiate its alleged justification by
reference to documents from the record of the customs valuation determination, and t hat the ex
post nature of its alleged justification is exemplified by Thailand's reliance on the findings of the

661 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.752.
662 With regard to the BoA Ruling, the Panel noted that while "[u]nder Article 4 of the CVA, customs
value may only be determined under the provisions of Article 5 if the customs value cannot be determined
under the provisions of Articles 1, 2 or 3", the Philippines did "not raise any issue or claim with respect to the
fact that, having rejected the transaction value under Article 1.2(a) of the CVA, the BoA proceeded to
determine the customs value on the basis of the methodology set forth in Article 5, as opposed to determining
an alternative customs value on the basis of Article 2 or Article 3." (Panel Report, Thailand – Cigarettes
(Philippines) (Article 21.5 – Philippines), para. 7.75 and footnote 254.)
663 Philippines' first written submission, paras. 474-489; second written submission, paras. 333-336.
664 Thailand's first written submission, paras. 3.101-3.103; second written submission, paras. 3.74-
3.77.
666 Philippines' first written submission, para. 483 (referring to Panel Report, Thailand – Cigarettes
(Philippines) (Article 21.5 – Philippines), para. 7.117, citing Appellate Body Report, US – Steel Safeguards,
para. 303 (emphasis added), and Panel Report, Thailand – Cigarettes (Philippines), footnote 499.) See also
Philippines' responses to Panel question Nos. 152-153.

Panel in the first recourse to Article 21.5; the Philippines observes that t he Public Prosecutor could
not have relied on these findings in bringing the Charges, because they came out nearly one year
after the 2002-2003 Charges were issued.668
7.383. In addition, the Philippines notes that PMTL never requested, under Article 4, the reversal of
the sequential ordering as between Article 5 (deductive value) and Article 6 (computed value), to
the contrary, and that in a letter to the Public Prosecutor on 28 October 2016, PMTL insisted that
the deductive valuation method should precede the computed valuation method. 669 Furthermore,
the Philippines states that the Public Prosecutor's decision to use a computed value under Article 6
"stands in stark contrast" to Thailand's historic approach to valuation of PMTL's imported goods,
because "for the past 15 years, the Customs Department and its BoA have rejected the transaction
value from time to time and, after consultation with the importer, have uniformly applied the
deductive valuation methodology under Article 5 of the CVA".670
7.384. Thailand denies that the Public Prosecutor ac ted inconsistently with Articles 2 to 6, on the
basis that the "present case involves special circumstances, in which none of the alternative methods
in Articles 2 -5 could be used to determine a customs value ".671 Thailand elaborates that because
PMTL is the only major cigarette importer in Thailand, this places the authorities in "the unusual
situation of not having sufficient previously determined customs values for identical or similar
goods", and the determination that the declared value is insufficient to ensure the recovery of costs
plus a reasonable profit means that the deductive method under Article 5 "is not appropriate either
because it would simply result in determining the same CIF price that was previously determined to
have been affected by the relationship between the exporter and the importer".672
7.385. In this regard, Thailand submits that the Panel's findings in the first recourse to Article 21.5
made clear that "it is virtually impossible to identify an appropriate amount for profit and general
expenses in the Thai market other than PMTL 's own ratio"673 and "the extensive debate before the
first compliance panel illustrates the many difficulties in establishing an appropriate P&GE ratio for
PMTL's imports".674 Thailand elaborates that "[t]he issues concerning the lack of other importers of
cigarettes, the difficulties in establishing a comparison group, and the relative size of PMTL compared
to other market participants all create substantial difficulties in the deductive value method to
analyse PMTL", and that "[i]n the light of these difficulties, it cannot be unreasonable to move on to
the next approach".675
7.3.5.3 Analysis by the Panel
7.3.5.3.1 General considerations
7.386. The first section of the General Note to the Interpretative Notes to the CVA , entitl ed
"Sequential Application of Valuation Methods", explains that these six methods are to be applied in
sequence. Paragraph 1 of the general Interpretative Note on 'Sequential Application of Valu ation
Methods' states that "[t]he methods of valuation are set out in a seq uential order of application".
Paragraph 2 adds that, when goods cannot be valued using the transaction value, the value "is to
be determined by proceeding sequentially through the succeeding Articles to the first such Article
under which the customs value can be determined".
7.387. The sequential ordering of valuation methods is also expressly reflected in the text of
Articles 2, 3, 4, and 7 of the CVA. The introductory clause of each provision sets forth this
requirement. Article 2 opens with the w ords "[i]f the customs value of the imported goods cannot
be determined under the provisions of Article 1", and continues by setting forth an alternative
valuation method that may be applied in the event the condition in the first clause is met. Article 3
has the same introductory clause, ending with a reference to "Articles 1 and 2", and then sets forth
the next valuation method. Article 4 of the CVA provides that the customs value may only be

669 Philippines' first written submission, paras. 484-486.
671 Thailand's first written submission, para. 3.102.
672 Thailand's first written submission, para. 3.102.
673 Thailand's first written submission, para. 3.102.
674 Thailand's second written submission, para. 3.77.
675 Thailand's second written submission, para. 3.77.

determined under the provisions of Article 5 if the customs value "cannot be determined" under the
provisions of Articles 1, 2 or 3, and that unless the importer requests otherwise, the method in
Article 6 can be applied only if the customs value "cannot be determined" under Article 5. The
opening words of Article 7.1 provide that recourse to the flexibilities of that provision may be used
"[i]f the customs value of the imported goods cannot be determined under the provisions of Articles
1 through 6". Furthermore, although there is no express provision that the sequent ial ordering of
the methods in Articles 1 to 6 should be followed again in the context of having recourse to the
reasonable flexibilities in Article 7.1, the Technical Committee on Customs Valuation has
recommended that, where reasonably possible, this seq uence should also be observed in applying
Article 7.676
7.388. The requirement to adhere to the hierarchical order of the sequential valuation methods is
a legal obligation, and the failure to comply with that obligation would constitute an independent
basis for finding a violation of the CVA. As highlighted by the original panel, "[i]f a customs authority
decides to reject the transaction value, another valuation method must be used by observing the
sequential order of the methods stipulated in Articles 2, 3, 5, 6 and 7."677
7.389. The fundamental nature of this obligation finds further ref lection through the manner in
which it informs the application of other CVA provisions, including the nature and the content of the
explanation that must be provided pursuant to Article 16. When defining the legal standard under
Article 16 of the CVA, the original panel explained that, similarly to the legal standard under
Article 1.2(a), third sentence, an explanation under Article 16 "must be sufficient to make clear and
give details of how the customs value of the importer 's goods was determined, includi ng the basis
for rejecting the transaction value and other valuation methods that sequentially precede the method
actually used by the customs authorities."678
7.3.5.3.2 Review of the 2002-2003 Charges
7.390. In this case, there is no direct, contemporaneous or documentary e vidence as to whether
the Thai authorities sought to apply the methods of customs valuation sequentially. Under the
applicable standard of review, it is not for a panel to decide which of the six recognized customs
valuation method(s) should have been used in relation to a particular set of imports. However, the
Panel considers that in the circumstances of this case, it can assess whether one or more of the
customs valuation methods in Articles 2, 3 or 5 of the CVA could have been used to value PMTL's
imports, without engaging in a de novo review beyond the scope of its mandate.679
7.391. The Panel recalls that a given method (e.g. Article 6) can be used only if the customs value
"cannot be determined" under the preceding method (i.e. Article 5). Thus, it stands to reason that
the stronger the basis for considering that the customs value of certain imported goods could have
been determined using the preceding method, then the stronger the basis for considering that an

676 Technical Committee on Customs Valuation, Advisory Opinion 12.2, "Hierarchical Order in Applying
Article 7", 16 September 1983, reproduced in Saul L. Sherman and Hinrich Glashoff, Customs Valuation:
Commentary on the GATT Customs Valuation Code (ICC Publishing S.A./Kluwer Law and Taxation Publishers,
1988), Annex III/A.
677 Panel Report, Thailand – Cigarettes (Philippines), para. 7.154.
678 Panel Report, Thailand – Cigarettes (Philippines), para. 7.240.
679 In a case involving the review of a customs valuation determination by the domestic authorities, the
applicable standard of review may confine the scope of a panel's analysis to the reasons communicated to the
importer in the contemporaneous explanation(s) provided to the importer, and/or to the information forming
part of the record of the determination. In such cases, if the written determination fails to adequately explain
how the authority addressed an issue that it was required to consider, that may compel a panel to find that the
issue in question was not properly examined and refuse to consider any ex post rationalizations. (Panel Report,
Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.108-7.121. See also paragraphs 7.146-
7.147.) However, neither the MoA nor the 2002-2003 Charges purport to provide any explanation of the
customs valuation methodology that was applied to determine the "actual price". For this reason, the Panel is
not persuaded by the Philippines' argument that under the applicable standard of review, the absence of any
direct, contemporaneous or documentary evidence as to whether the Thai authorities sought to apply the
methods of customs valuation sequentially in relation to the 2002-2003 Charges compels the Panel to conclude
that the Thai authorities failed to comply with the obligation to apply the methods of customs valuation
sequentially.

authority's decision entailed a violation of the obligation to sequentially apply the customs valuation
methods.
7.392. In this case, there is evidence that the Public Prosecutor could have determined the customs
value of PMTL's imported cigarettes using the deductive method in Article 5. It is an uncontested
fact that, as asserted by the Philippines, for the past 15 years, on all occasions where the Customs
Department and its BoA have rejected PMTL's transaction values, they have, after consultation with
PMTL, uniformly applied the deductive methodology under Article 5.680 Indeed, as discussed earlier,
the customs values of all of the 780 entries subject to the 2002-2003 Charges had previously been
determined by Thai Customs or its BoA, which used either the transaction value or the deductive
method under Article 5 as the basis for valuing the entries at issue. 681 It appears that t he Thai
Customs and its BoA have never before relied on the computed value method under Article 6 to
determine the value of any of PMTL's imports of Marlboro or L&M cigarettes from Indonesia or the
Philippines.
7.393. The Panel notes that Thailand lists "special circumstances" that, in its view, justify the
conclusion that the customs value of PMTL's imports into Thailand cannot be determined using any
of the methods in Articles 2, 3 or 5 . Yet without further elaboration, that conclusion appears to be
contradicted by 15 years of practice of the Thai Customs Department and the BoA. The
circumstances now described by Thailand as "special circumstances" would appear to be no different
from those prevailing during that period of 15 years.
7.394. Furthermore, the Panel considers that it is worth clarifying that in neither the original panel
proceeding nor the first recourse to Article 21.5 did the Philippines challenge the Customs
Department's reliance on the use of the deductive method in Article 5 to value its imports; to the
contrary, the Philippines only challenged the specific P&GE rate determined by the BoA for purposes
of the November 2012 BoA Ruling. The Panel's own findings wer e also confined to this specific
challenge by the Philippines. 682 In the context of reviewing the BoA's determination, the Panel
addressed certain difficulties that were "specific to an examination that relied on a comparison of
PMTL's P&GE rates with an ind ustry benchmark group ", and observed that the CVA contemplates
other methods of customs valuation .683 However, the Panel never stated that this rendered the
deductive method of customs valuation impossible to apply in the specific circumstances of PMTL's
imports into Thailand, and stated inter alia that:
[W]e do not wish to suggest that a customs authority is precluded from ever conducting
an examination of the circumstances of sale on the basis of a comparison of P&GE rates
in situations where the market circumstances do not allow for a perfect apples-to-apples
comparison between companies being compared. It is conceivable that a particular
market situation could be such that any examination of the circumstances of sale will
suffer from certain limitations. In such a situation, certain shortcomings in the
methodology may be permissible to the extent that they are controlled for in a
reasonable and appropriate manner, in order to ensure that the chosen methodology is
as apt as possible under the circumstances. As indicated above, shortcomings in the
comparison may not give rise to an inconsistency with Article 1.2(a) insofar as relevant
and identifiable differences that would affect the comparison are taken into account. We
return to this issue in the context of addressing the manner in which the BoA determined
the industry benchmark P&GE range, and also the manner in which the BoA compared
PMTL's P&GE rates with that benchmark P&GE range.684
7.395. Thus, there is no direct, contemporaneous or documentary evidence indicating that the Thai
authorities sought to apply the methods of customs valuation sequentially. As set forth above, there
are strong indications that the Thai authorities did not respect the sequential application of customs

680 Parties' response to Panel question No. 153.
681 See above paragraph 7.175.
682 Philippines' second written submission, paras. 168-169. The Philippines requested that the Panel
"clarify this important point in its ruling to avoid the Customs Department (or any other Thai authority)
subsequently asserting, in Thai domestic proceedings, that the Panel found that the Customs Department (or
any other Thai authority) cannot determine a proper P&GE rate for PM Thailand under Article 5". (Philippines'
second written submission, para. 170.)
683 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.154.
684 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.156. (fn
omitted)

valuation methods by jumping dire ctly to computed value under Article 6 without first seeking to
use the valuation methods in Articles 2, 3 or 5. Thailand has asserted that there were "special
circumstances" establishing that PMTL's imports could not be valued under Articles 2, 3 or 5, but its
arguments are not elaborated, and appear to be contradicted by 15 years of practice of the Thai
Customs Department and the BoA.
7.396. The Panel therefore considers that the Philippines has made a prima facie case that the
Public Prosecutor failed to follow the sequential ordering of customs valuation methods provided for
in Articles 2 to 7 of the CVA when determining the revised customs value , and the Panel considers
that Thailand has not rebutted this prima facie case. To the contrary, the Panel notes tha t, in the
context of advancing its arguments under Article XX of the GATT 1994, Thailand has also stated that
"[i]t would be unreasonable to expect the Public Prosecutor to go through all the sequential steps in
the CVA when the evidence it is confronted with leads him to suspect that the importer engaged in
fraudulent activities".685
7.397. To avoid any misunderstanding, the Panel's finding and reasoning does not imply that the
Customs Department and the BoA's longstanding practice of applying the deductive method in
Article 5 to value PMTL's imports of Marlboro and L&M cigarettes precludes any Thai authority from
ever having recourse to the computed value method in Article 6, or making use of the reasonable
flexibilities in Article 7. Notwithstandi ng that the CVA itself recognizes that the use of Article 6
"present[s] certain difficulties"686 (which partly explain why it falls last in the hierarchy of distinct
methods), it is not inconceivable that the Thai authorities could provide a reasoned explana tion as
to why the methods in Articles 2, 3 and 5 (and/or 6 itself) are not applicable to value PMTL's imports.
In this case, however, that kind of reasoned explanation is missing.
7.3.5.4 Conclusion
7.398. The Panel finds that the Public Prosecutor acted inconsistently with the obligation to
sequentially apply the customs valuation methods in Articles 2 through 7 when it determined the
revised customs values of PMTL's imported goods.
7.3.6 Claim under Article 1.2(a), third sentence, of the CVA
7.3.6.1 Introduction
7.399. In the first rec ourse to Article 21.5, the Panel upheld the Philippines ' argument that the
procedural obligation in Article 1.2(a), third sentence, applies to the BoA, and its claim that the BoA
acted inconsistently with this obligation by not communicating its grounds for considering that the
relationship between PMTL and PM Indonesia influenced the price, sufficiently for PMTL to
meaningfully respond.687 The Philippines did not pursue any similar claim in respect of the 2003 -
2006 Charges.
7.400. In this second recourse to Article 21.5, the Philippines claims, in connection with the 2002-
2003 Charges, that the Public Prosecutor failed to comply with the p rocedural obligation in
Article 1.2(a), third sentence, to communicate the grounds for doubting the declared transaction
value to PMTL and provide it with an opportunity to respond.688 In the Philippines' view, the Public
Prosecutor is subject to this obligation, and it was not discharged by the communications between
the DSI and PMTL regarding the CK-21A forms.
7.401. Thailand responds that the Public Prosecutor is not subject to the procedural obligation in
Article 1.2(a) third sentenc e.689 In addition, Thailand states that it is of the view that the DSI

685 Thailand's first written submission, para. 3.150. In response to a question from the Panel asking
whether this meant that Thailand was saying that the Public Prosecutor did not adhere to the sequential
ordering of customs valuation methods, Thailand stated that this statement should not be so construed.
(Thailand's response to Panel question No. 154.)
686 CVA, General Introductory Commentary, paragraph 3.
687 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.278.
688 Philippines' first written submission, paras. 496-516; second written submission, paras. 344-350.
689 Thailand's first written submission, paras. 3.112-3.116; second written submission, paras. 3.82-
3.87; response to Panel question No. 151.

communicated its grounds to PMTL and that PMTL was giv en a reasonable opportunity to respond,
and that the Public Prosecutor was not required to repeat the process previously conducted by the
DSI prior to filing the 2002-2003 Charges.690
7.3.6.2 Main arguments of the parties
7.402. As for the applicability of Article 1.2(a), third sentence, to the Public Prosecutor, the
Philippines recalls the Panel's finding that the substantive obligations in Articles 1 to 7 of the CVA
apply to any state organ that engages in customs valuation, and suggests that much of the Panel's
reasoning would also extend to the procedural obligation in Article 1.2(a), third sentence.691 It also
explains that the procedural and substantive obligations in Article 1.2(a) "work together, as an
integrated package ", su ch that the Public Prosecutor could not be subject to the substantive
obligation without being subject to the procedural obligation. 692 The Philippines also highlights, as
context, that under the Ministerial Decision Regarding Cases Where Customs Administrat ions Have
Reasons to Doubt the Truth or Accuracy of the Declared Value, when a customs authority assesses
potentially fraudulent declarations by an importer "it is subject to procedural obligations that are
very similar to those in Article1.2(a) " which und erscores that the pr ocedural obligations in
Article 1.2(a) apply in the case of customs valuation assessments with a criminal dimension.693
7.403. In its first written submission, the Philippines accepts that the DSI informed PMTL that it had
obtained copies of the CK-21A forms and had doubts or suspicions based on these forms to the
effect that the importer had under -declared the customs values on entries in 2001 -2003.694
However, the Philippines considers that the DSI did not discharge the obligation in Article 1 .2(a),
third sentence, because it communicated only limited information, at an early stage of the
investigation, never communicated to PMTL how it assessed the information received from PMTL
regarding the CK -21A information, and did not communicate whether the CK -21A information
constituted the grounds for the DSI's allegation in the formal MoA issued on 22 September 2016.695
Furthermore, the Philippines argues that the Public Prosecutor is an entity distinct from the DSI that
made its own distinct customs va luation determination, and was thus required to adequately
communicate its grounds for doubting the declared transaction value prior to issuing the 2002-2003
Charges in January 2017.696
7.404. In its first and second written submissions, Thailand 's response to the Philippines' claim
under Article 1.2(a), third sentence, is confined to arguing that procedural obligations of the CVA
cannot apply to the Public Prosecutor . Thailand submits that this is so because "there are certain
features of criminal procedures which prevent the application of the CVA procedural obligations"697,
and that this "is the case, for example, of the obligation to consult with the importer, which would
be incompatible with the principle in criminal law that the accused has the right to remain silent".698
In response to a question from the Panel, Thailand elaborates on the basis for its view that customs
fraud investigations do not follow the same timeframes or procedures as customs valuation
examinations which are carried out at the moment of customs clearance.699 Thailand adds that even
if the procedural and substantive obligations in the CVA are "closely entwined", that does not erase
the distinction between them. 700 Thailand also considers that the reference to paragraph 1 of the

690 Thailand's second written submission, paras. 3.21–3.39; response to Panel question No. 151,
paras. 6.13-6.14.
692 Philippines' first written submission, paras. 503-506.
694 Philippines' first written submission, paras. 95-96. In its subsequent submissions, the Philippines
argued that the evidence casts doubt on its earlier understanding that the DSI had obtained copies of those
forms, but nonetheless shows that the DSI had access to certain pricing and cost information submitted by the
Indonesian producer to the Indonesian government in CK-21A forms. See paragraph 7.100 above.
695 Philippines' response to Panel question No. 151, paras. 229-239.
696 Philippines' response to Panel question No. 151, paras. 240-245.
697 Thailand's first written submission, para. 3.113.
698 Thailand's first written submission, para. 3.113.
699 Thailand's response to Panel question No. 150.
700 Thailand's second written submission, para. 3.85.

Ministerial Decision is unavailing, because an enquiry into customs fraud is not subject to the CVA
or the Ministerial Decision.701
7.405. In response to a question from the Panel, Thailand states that, even assuming arguendo
that the procedural obligation in Article 1.2(a), third sen tence, applies in the context of customs
fraud, the DSI did communicate its grounds to PMTL and PMTL was given a reasonable opportunity
to respond702, and the Public Prosecutor and the Customs Department were not required to repeat
the process previously conducted by the DSI prior to filing the 2002-2003 Charges.703
7.3.6.3 Analysis by the Panel
7.3.6.3.1 General considerations
7.406. As explained above, Article 1.1 of the CVA prov ides that, in principle, a customs authority
must use the transaction value of the imported goods as the customs value. Article 1.1(d) read in
conjunction with Article 1.2(a) clarifies that this applies also in situations in which the buyer and the
seller are related, unless it is established that the relationship influenced the price. The third and
fourth sentences of Article 1.2(a) of the CVA state that:
If, in the light of information provided by the importer or otherwise, the customs
administration has grounds for considering that the relationship influenced the price, it
shall communicate its grounds to the importer and the importer shall be given a
reasonable opportunity to respond. If the importer so requests, the communication of
the grounds shall be in writing.
7.407. Regarding the requirement to communicate "grounds" to the importer, the original panel
considered that the term "grounds" means the "reasons for considering".704 The original panel also
noted that, where an importer has provided information and evidence to the customs authority, "the
grounds for [the customs authority's] consideration that the relationship between the buyer and the
seller influenced the price must be linked to that concerned evidence so as to assist the importer in
understanding the authority's consideration".705 Additionally, the original panel stated that it was
neither "necessary [n]or useful … to define the exact extent and scope of 'grounds' to be provided
under Article 1.2(a) as they may vary depending on the factual circumst ances presented in each
case."706
7.408. However, the original panel explained that:
[I]n order for the importer to have a reasonable opportunity to respond to the customs
authorities' consideration … the importer must not be left to guess the reasons for the
customs authorities ' consideration. The right of the importer to have "a reasonable
opportunity to respond" under Article 1.2(a) would lose its meaning unless the importer
is informed of at least the reason(s) why the customs authority continues to question
the acceptability of the transaction value despite the evidence and information
presented or otherwise in the possession of the customs authority until that point.707

701 Thailand's second written submission, paras. 3.21–3.39; response to Panel question No. 150,
paras. 6.2-6.3.
702 Thailand's response to Panel question No. 151, para. 6.13.
703 Thailand's response to Panel question No. 151, para. 6.14.
704 Panel Report, Thailand – Cigarettes (Philippines), para. 7.218. This interpretation is consistent with
the Spanish and French versions of the CVA, which refer to "razones" and "motifs" respectively. In the Spanish
esas razones al importador y le dará oportunidad razonable para contestar." In the French version, Article
1.2(a) states that "Si, compte tenu des renseignements fournis par l'importateur ou obtenus d'autres sources,
ses motifs à l'importateur et lui donnera une possibilité raisonnable de répondre."
705 Panel Report, Thailand – Cigarettes (Philippines), para. 7.220.
706 Panel Report, Thailand – Cigarettes (Philippines), para. 7.214.
707 Panel Report, Thailand – Cigarettes (Philippines), para. 7.214.

7.409. The original panel highlighted the importance of giving the importer the opportunity to
respond, because "while customs authorities are responsible for providing a 'reasonable opportunity'
to the importer to provide information, once given this opportunity, importers are in principle liable
for supplying the customs authorities with information th at would indicate that the relationship did
not influence the price."708 In this respect, the original panel emphasized that, "[t]o the extent that
Thai Customs was presented with certain evidence, the grounds for its consideration that the
relationship between the buyer and the seller influenced the price must be linked to that concerned
evidence so as to assist the importer in understanding the authority's consideration."709
7.410. After recalling these general interpretations, the Panel in the first recourse to Art icle 21.5
concluded:
In short, to comply with the third sentence of Article 1.2(a), a customs authority must
give the importer sufficient information regarding the authority 's grounds for doubting
the transaction value, such that the importer is able to meaningfully respond to those
grounds. Additionally, the customs authority must give the importer an opportunity to
respond.710
7.411. In the context of addressing the Philippines ' claim under Article 1.2(a), third sentence,
regarding the November 2012 BoA Ruling, the Panel linked this procedural obligation to the general
principle of due process of law, to the wider objectives of the CVA, and to closely related CVA
obligations comprising relevant context:
[T]he obligations in Article 1.2(a), third sentence, to co mmunicate the grounds to an
importer and provide a reasonable opportunity to respond are consistent with due
process. Indeed, it could be contrary to the CVA's object and purpose of providing for a
"fair, uniform and neutral" system of valuation if a customs authority's examination of
the circumstances of sale, whether initially or at the point of appeal, provided no
opportunity for the importer to provide relevant information to the customs authority in
order to inform its determination. We understand that Thailand may even agree on this
point, given its insistence that PMTL was given "repeated full opportunities to provide
information" to the BoA. In our view, as a consequence of the consultative nature of an
examination of the circumstances of sale under Article 1.2(a), second sentence, the
obligations under the second and third sentences of Article 1.2(a) are necessarily
related. Indeed, certain of our findings above emphasize the importance of the customs
authority adequately consulting with the importer , in assessing whether the customs
authority acted inconsistently with Article 1.2(a), second sentence.
Furthermore, we consider that the nature of the obligations in Article 1.2(a) third
sentence serves the same objective as Article 16 of the CVA, which, as the original panel
stated, is to "enable[] importers and foreign governments to effectively exercise their
respective rights under Articles 11 and 19 of the Customs Valuation Agreement when
requesting domestic reviewing tribunals, courts and WTO panels to determine whether
the manner or means of valuation by a customs authority was consistent with the
importing Member's WTO obligations".711
7.412. The parties do not contest the legal standard described above. The parties disagree on two
main issues. First, whether the obligations contained in Article 1.2(a), third sentence, apply in the
context of investigations into customs fraud, and to customs valuation determinations made by
entities such as the DSI and the Public Prosecutor . Second, in the event such obligations do apply
to those entities, whether the DSI and/or Public Prosecutor satisfied those obligations.

708 Panel Report, Thailand – Cigarettes (Philippines), para. 7.170 (referring to Case Study 10.1 on the
application of Article 1.2 of the Customs Valuation Agreement by the WTO Technical Committee on Customs
Valuation).
709 Panel Report, Thailand – Cigarettes (Philippines), para. 7.220.
710 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.254.
711 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.259-7.260.
(fn omitted)

7.413. The Panel notes that Thailand has not elaborated at all on the second point, or responded to
any of the arguments presented by the Philippines as to why the obligation in Article 1.2(a) was not
discharged by the communications between the DSI and PMTL regarding the CK -21A forms.
However, for the reasons set forth in analogous circumstances in the c ontext of a claim under
Article 16 in the first recourse to Article 21.5, the Panel must independently and objectively address
the evidence before it to determine whether the Philippines has met its burden of proof.712
7.3.6.3.2 The applicability of Article 1.2(a), third sentence, to the Public Prosecutor
7.414. The Panel recalls th at in the first recourse to Article 21.5, it was unnecessary to rule on
whether the procedural obligation in Article 1.2(a), third sentence, applies to the Public Prosecutor,
because the Philippines elected not to pursue any claim under Article 1.2(a), third sentence, in
relation to the 2003-2006 Charges. As a consequence, the Panel stated that:
This means that the Panel need not, and indeed may not, examine the consistency of
the Charges with the procedural obligation in Article 1.2(a), third sentence, of the CVA.
As a consequence, it is not necessary for us to rule on whether, and if so how, the
obligation in Article 1.2(a), third sentence, would apply in the context of criminal
charges relating to customs valuatio n, or on how that procedural obligation would be
informed by the terms of the "Decision Regarding Cases where Customs Administrations
Have Reasons to Doubt the Truth or Accuracy of the Declared Value". Nor is it necessary
for us to resolve the question of whether the DSI's April 2009 Memorandum of Allegation
could be characterized as a document that "communicates" the "grounds" to the
importer.713
7.415. While the Panel did not rule on this question, elsewhere in its analysis it identified a series
of different cons iderations that cumulatively led the Panel to conclude that the substantive CVA
obligations at issue apply to any organ of the state that makes a "customs valuation "
determination.714 Many of those considerations, including general principles of state respon sibility,
would equally support the conclusion that the procedural obligation in Article 1.2(a), third sentence,
applies to state organs that are not part of the "customs administration" in the narrow sense of the
term. Furthermore, the Panel considers tha t th e procedural and sub stantive obligations in
Article 1.2(a) are integrally related to one another, and both are integrally linked to the obligation
in Article 1.1, such that the Public Prosecutor could not be subject to the general obligation in
Article 1.1, and to the substantive obligation in Article 1.2(a) second sentence, without also being
subject to the procedural obligation in the third sentence of that same provision. Finally, as recalled
further above, in the context of addressing the Philippines' claim under Article 1.2(a), third sentence,
regarding the November 2012 BoA Ruling, the Panel linked this procedural obligation to the general
principle of due process of law, to the wider objectives of the CVA, and to the interrelated obligation
in Article 1.2(a), second sentence. 715 For these rea sons, the Panel considers that the procedural
obligation in Article 1.2(a), third sentence, applies to any entity making a customs valuation
determination that is subject to the obligation in Article 1.2(a), second sentence.
7.416. The Panel agrees with Thailand that it is necessary to give careful consideration to the
practicalities of superimposing CVA procedural obligations onto entities involved in criminal
investigations into customs fraud. The Panel recalls that in reaching its finding that the BoA is subject
to the procedural obligation in Article 1.2(a), third sentence, the Panel did exactly that: it carefully
considered whether any practical difficulties would arise from subjecting the BoA to that obligation,
and expressly reserved judgment on whether and if so how that procedural obligation would apply
in respect of other appellate tribunals, stating that it s analysis proceeded by "[a]ssuming for the
sake of argument that the procedures of Article 1.2(a) might not be adaptable or appropriate in the
context of some appellate tribunals".716 The Panel conducted a very similar analysis when assessing
the applicability of the procedural obligation in Article 16 to an appeals tribunal such as the BoA.717

712 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.431 and
footnote 942.
713 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.463.
714 As summarized above, in Section 7.3.3.3.2 (The agency that filed the Charges).
715 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.259.
716 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.261.
717 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.421.

7.417. In the Panel's view, these considerations also pertain to the manner in which the procedural
obligation may be discharged. In other words, the Panel considers that the procedural obligation in
Article 1.2(a), third sentence, applies to any entity making a customs valuation determination, but
that the nature of the agency and the circumstances in which a determination was made could be
highly germane to the appraisal of whether or not the obligation was discharged. Furthermore, if
there were circumstances in which it was impossible for entities that do not form part of the "customs
administration" in the narrow sense of the term to comply with the p rocedural obligation in
Article 1.2(a), third sentence, without violating other rules, such as the right to rema in silent, then
it would apply mutatis mutandis. Here again, there is a degree of balance inherent in the CVA.718
7.418. The Panel does not consider it is necessary or advisable to attempt to specify, in the abstract,
the extent to which the procedural obligations in the CVA, including the one articulated in the third
sentence of Article 1.2(a), may be discharged in different ways in the context of diverse factual
configurations. In this regard, the Panel recalls the original panel's view that it is neither "necessary
[n]or useful … to define the exact extent and scope of 'grounds' to be provided under Article 1.2(a)
as they may vary depending on the factual circumstances presented in each case. "719 That
observation holds true in general, and carries particular force w hen applying CVA procedural
obligations to entities outside of the narrow definition of a "customs administration".
7.419. In the light of the foregoing, the Panel c oncludes that the procedural obligation in
Article 1.2(a), third sentence, applies to the Public Prosecutor. However, the Panel considers that
the nature of the information and the "grounds" to be communicated in the context of a criminal
investigation may be different from the nature of the information an d the "grounds" to be
communicated in the context of a typical customs valuation within the institutional framework of a
"customs administration" in the narrow sense of the term.
7.3.6.3.3 The communications between the DSI and PMTL
7.420. In this proceeding, the Philippines claims that the Public Prosecutor acted inconsistently with
Article 1.2(a), third sentence, by not communicating its grounds to PMTL for considering that the
relationship between the parties influenced the declared transaction value. As with the other claims
submitted by the Philippines in relation to the 2002 -2003 Charges, this claim concerns the Thai
authorities' reliance on information obtained from CK-21A forms. The Panel has already found that
the Thai authorities' reliance on pricing and cost info rmation reported by PM Indonesia in the CK -
21A forms to determine the customs value of PMTL 's cigarettes imported into Thailand violates
multiple substantive CVA requirements arising under Article 1.1, Article 1.2(a) second sentence,
Article 6, and/or Article 7. In reaching that finding under these provisions, the Panel concluded that,
inter alia, both the DSI and the Public Prosecutor disregarded the detailed explanations and expert
statements that PMTL provided (and then repeatedly reiterated) as to why the information reported
in the CK-21A forms could not be used to determine the customs value of its imported cigarettes.
7.421. To recall, a s described in greater detail earlier720, the record shows that at some point in
early 2011, the DSI apparently informed PMT L of its suspicions that PMTL had under -declared
customs values on entries in 2001 -2003 based on CK-21A excise tax forms obtained fr om the
Government of Indonesia. That led PMTL to provide a detailed response, and also to obtain and
submit the two expert statements that have already been referred to. More specifically:

718 The Panel notes that Annex III, paragraph 6 of the CVA provides that Members, "subject to their
national laws and procedures," have the right to expect the "full cooperation" of importers in enquiries
"concerning the truth or accuracy" of statements, documents, and declarations presented to them for customs
valuation purposes. If "the right to expect the full cooperation of importers" in such enquiries is "subject to"
each Member's "national laws and procedures", and those national laws or procedures reflect the principle that
the accused has the right to remain silent in the context of criminal procedures, this could adequately address
any incompatibility that might arise from finding that the procedural obligation in Article 1.2(a) third sentence,
and/or the corresponding procedural obligation in the Ministerial Decision Regarding Cases Where Customs
Administrations Have Reasons to Doubt the Truth or Accuracy of the Declared Value, is applicable to criminal
procedures.
719 Panel Report, Thailand – Cigarettes (Philippines), para. 7.214.
720 See Section 7.2.3 (The circumstances surrounding the Thai authorities' reliance on the CK-21A
forms).

a. On 4 February 2011, PMTL sent a letter to the DSI in which PMTL made a "Request for
Fair Treatment and Justice ".721 The letter states that it "understands that the DSI has
formed the view that the retail selling prices set out in the so -called Form CK -21A are
comparable to PM Thailand's declared customs values and therefore evidence to show that
PM Thailand's import prices declared to Thai Customs are incorrect".722
b. On 4 May 2012, counsel for PMTL sent two witness statements to the DSI to "support the
facts asserted in the said Request for Fair Treatment and Justice".
c. The record before the Panel includes an exchange of letters between PMTL and the DSI
regarding the CK -21A forms over a period o f years. In these letters, PMTL repeatedly
articulates the reasons why the information in the CK -21A forms is not relevant to the
determination of PMTL 's customs values, and the DSI repeatedly requests that PMTL
provide it with copies of all of the CK-21A forms.
d. On 28 October 2016, after the DSI had issue d the MoA and before the Public Prosecutor
filed the Charges on 26 January 2017, PMTL sent a letter to the Public Prosecutor recalling
why the information in the CK-21A forms could not be used to determine a customs value
for its imports into Thailand.
7.422. In these circumstances, the Panel considers that the fundamental flaw on the part of the
DSI and the Public Prosecutor was not so much a failure to communicate and provide PMTL with an
opportunity to respond t o the grounds for doubting the acceptability of the declared transaction
value, but rather the Thai authorities' repeated disregard of the information provided by PMTL after
the DSI communicated the grounds for doubting the transaction value. In the Panel 's view, this
shortcoming therefore pertains more to the substantive obligation in Article 1.2(a), second sentence,
concerning the duty to conduct a proper examination of the circumstances of sale, than it does to
the procedural obligation in Article 1.2(a), third sentence.
7.423. The Panel has considered the Philippines' argument that the DSI and Public Prosecutor "did
not communicate to the importer how it assessed the importer 's information, in particular the two
expert reports"; and subsequently did not "clearly indicate to the importer how it evaluated the
information submitted by the importer, including the sufficiency of the information submitted ".723
Indeed, the evidence shows that the Thai authorities never communicated to PMTL how they
assessed the information received from PMTL regarding the CK-21A information, and the Panel also
considers that they were under a legal obligation to do so, prior to making a customs valuation
determination, insofar as they considered that information insufficient to address t heir concerns.
However, the Panel considers that such an obligation arises in the context of the process of
consultation under Article 1.2(a), second sentence. As the original panel stated, in a passage
subsequently referred to and relied upon by the Panel in the first recourse to Article 21.5 in the
context of its formulation of the legal standard under the second sentence of Article 1.2(a):
[I]n order to properly examine the circumstances of a given transaction, the customs
authority must clearly indicate to the importer how it evaluates the information
submitted by the importer, including the insufficiency of the information submitted and,
if necessary and feasible, any further particular type of information that may help them
assess the validity of the transaction value.724
7.424. In support of its claim under Article 1.2(a), third sentence, the Philippines observes that the
DSI did not indicate "whether, and if so how, the DSI had used the CK-21A information to calculate
an alternative customs value for the imported goods being valued, given that the form dealt with
goods being sold in Indonesia "725, and further notes that the MoA subsequently issued on

721 Request for Fair Treatment and Justice, 4 February 2011 (English translation), (Exhibit PHL-279-B).
722 Request for Fair Treatment and Justice, 4 February 2011 (English translation), (Exhibit PHL-279-B),
p. 1.
723 Philippines' response to Panel question No. 151, paras. 230-234.
724 Panel Report, Thailand – Cigarettes (Philippines), para. 7.164 (referred to in Panel Report, Thailand –
Cigarettes (Philippines) (Art. 21.5 – Philippines), at para. 7.106).
725 Philippines' response to Panel question No. 151, para. 220.

22 September 2016 did not state any grounds in respect of the allegations.726 Here again the Panel
is sympathetic to the Philippines' due process concerns, but considers that this alleged shortcoming
would be more germane to an assessment of a claim under Article 16 of the CVA. This provision,
which was discussed at some length in both the first recourse to Article 21.5727 as well as in the
original proceeding728, establishes the obligation to provide, upon request, an explanation "as to how
the customs value of the importer's goods was determined" once the relevant authorities have made
a customs valuation determinatio n. The Philippines has asserted that PMTL directed such requests
to both the DSI and the Public Prosecutor, and received no satisfactory response from the DSI and
no response at all from the Public Prosecutor. 729 However, the Philippines has not pursued a cl aim
under Article 16 with respect to the 2002-2003 Charges.730
7.425. The Panel has also considered the Philippines' argument that "[t]he DSI investigation did not
meet the standard in Article 1.2(a) (third sentence) " because "the DSI's intimation of [its] early
doubts came too early in the investigation to constitute the DSI's grounds under Article 1.2(a)"; and
provided "only limited information ".731 As a general consideration, the Panel considers that it is
reasonable to expect that the nature of the information and the "grounds" communicated in the
context of a criminal investigation may be different from the nature of the information and the
"grounds" communicated in the context of a typical customs valuation within the institutional
framework of a "customs administration" in the narrow sense of the term. In this regard, the Panel
recalls the original panel's view that it is neither "necessary [n]or useful … to define the exact extent
and scope of 'grounds' to be provided under Article 1.2(a) as they may vary depending on the factual
circumstances presented in each case. "732 As to the information coming "too early " in the
investigation, the Panel recalls that t he record before it includes an exchange of letter s between
PMTL and the DSI regarding the CK -21A forms spanning a period of years . As to the DSI
communicating only "limited information ", the Panel considers that regardless of whether the
information that the DSI communicated to PMTL regarding the CK-21A forms was limited, the record
establishes that it was sufficient to put PMTL in a position to provide the detailed response that it
did, including the two expert statements that have already been referred to. Thus, the purpose of
Article 1.2(a), third sentence, which is to "ensure that importers be given a reasonable opportunity
to provide information that would indicate that the relationship did not influence the price "733,
appears to have been achieved.
7.426. In this connection, the circumstances of this case ar e materially distinguishable in several
respects from the circumstances that led the Panel to find a violation of Article 1.2(a), third sentence,
in respect of the November 2012 BoA Ruling in the first recourse to Article 21.5. In respect of the
BoA, the Panel observed that Thailand had "not submitted any evidence or exhibits to demonstrate
that the grounds for the BoA 's consideration were communicated to PMTL (for instance, Thailand
has not submitted as exhibits the letters which, in its view, evidence PMTL's awareness that the BoA
was conducting a comparison of P&GE rates )"734; in this case, however, there is evidence on the
record of the repeated exchanges between the DSI and PMTL specifically concerning the CK -21A
forms. In respect of the BoA in the first recourse to Article 21.5, the Panel agreed with the Philippines
that insofar as letters between the BoA and PMTL showed that PMTL was aware that the BoA 's
customs valuation determination involved consideration of PMTL 's P&GE rate, they would not have
made PMTL aware that the BoA was undertaking an examination of the circumstances of sale based
on a comparison of PMTL's P&GE rate with the P&GE rates of comparable companies735; in this case,

726 Philippines' response to Panel question No. 151, paras. 221-222.
727 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.407-7.434.
728 Panel Report, Thailand – Cigarettes (Philippines), paras. 7.224-7.266.
729 See paragraph 7.187.
730 The Philippines has pursued a claim under Article 16 in respect of the 1,052 revised NoAs.
731 Philippines' response to Panel question No. 151, paras. 209, 230 and 232.
732 Panel Report, Thailand – Cigarettes (Philippines), para. 7.214.
733 Panel Report, Thailand – Cigarettes (Philippines), para. 7.171.
734 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.275.
735 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.276, where the
Panel explained that "the Philippines directly contradicts Thailand's characterization of these letters as evidence
of PMTL's awareness that the BoA was conducting a comparison of P&GE rates. The Philippines explains that, in
previous appeals from that period, the BoA had tested the transaction values by performing a "deductive value
calculation", which included in the methodology a deduction for P&GE. Thus, through the exchange of letters
discussed by Thailand, the Philippines understood that the BoA intended to use this same method, and not that
a different test would be conducted based on a comparison of PMTL's P&GE rate with the P&GE rates of
comparable companies."

however, the communications show that PMTL was aware and stated that it understood, as far back
as February 2011, that "the DSI has formed the view that the retail selling prices set out in the so-
called Form CK -21A are comparable to PM Thailand 's declared customs values and therefore
evidence to show that PM Thailand's import prices declared to Thai Customs are incorrect ".736 In
respect of the BoA, the Panel found that, taking into account the evidence before it, the BoA did not
communicate its grounds "sufficiently for PMTL to meaningfully respond "737; in this case, however,
the record shows that PMTL was able to provide a detailed response, and to obtain and submit the
two expert statements, on the unsuitability of relying on the CK-21A forms to determine the customs
value of its imports.
7.427. The Panel is also not persuaded by the Philippines' further argument that, even if the DSI's
investigation complied with Article 1.2(a), third sentence, the Public Prosecutor was necessarily
required to communicate these same grounds again prior to issuing the 2002 -2003 Charges.738
Beginning with the text of Article 1.2(a), third sentence, the wording of this provision does not
directly speak to the question of whether "each time a distinct customs valuation determination is
made, the grounds must be adequately communicated by the customs administration that is
responsible for making the determination ".739 While the Panel did not directly rule on this issue in
the context of the first recourse to Article 21.5, the Panel considered that, when analysing how the
procedural obligation in Article 1.2(a), third sentence, would apply to a series of two or more
successive customs valuation determinations by different entities, it would be pertinent to consider
whether the later determination(s) were based on issues, evidence or grounds that we re distinct
from those already communicated to the importer in the context of the earlier determination.740 The
Panel's analysis appears to be consistent with the approach taken by prior panels in determining
whether Article 6.9 of the Anti-Dumping Agreement requires an authority to disclose the "essential
facts" again prior to making the final determination if it did so prior to making the preliminary
determination.741
7.428. The Panel is not suggesting that either the DSI or the Public Prosecutor considered
themselves to be subject to the obligation in Article 1.2(a), third sentence, or that they sought to
communicate their concerns regarding the CK-21A forms to PMTL with a view to providing it with an
opportunity to respond in the spirit of Articl e 1.2(a), third sentence. The Panel has already found,
based on the evidence on record, that the DSI and the Public Prosecutor disregarded PMTL 's

736 Request for Fair Treatment and Justice, 4 February 2011 (English translation), (Exhibit PHL-279-B),
p.1.
737 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.278.
738 Philippines' response to Panel question No. 152, para. 241.
739 Philippines' response to Panel question No. 152, para. 241.
740 In the first recourse to Article 21.5, Thailand accepted that the procedural obligation in Article 1.2(a),
third sentence, applied in the context of the initial customs valuation determination made by the Customs
Department, but argued that it did not apply in the context of an appeal of that determination before the BoA.
In the context of addressing that issue, the Panel reasoned that "if the issues and evidence are different at the
appellate stage than during the initial determination, then the procedural requirements of Article 1.2(a) may
take on particular importance". In addition, when explaining the risk of circumvention that would exist if
appellate tribunals such as the BoA were not subject to this procedural obligation, the Panel contemplated a
scenario in which a customs authority could make an initial rejection of the customs value on WTO-inconsistent
grounds, while respecting the requirements of the third sentence, and on appeal the appellate tribunal could
reject the transaction value "on entirely distinct grounds from the original determination", without consulting
the importer (i.e. without notifying the importer of its grounds for considering rejection of the transaction
value, and without giving the importer an opportunity to respond to those grounds). The Panel expressed the
view that, in these circumstances, i.e. in which the issues, evidence and grounds involved in successive
determinations were different, then finding Article 1.2(a), third sentence, to be inapplicable to the later-in-time
determination would undermine the purpose of this obligation, which is to "ensure that importers be given a
reasonable opportunity to provide information that would indicate that the relationship did not influence the
price". (Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.264-7.265.)
741 Article 6.9 of the Anti-Dumping Agreement provides that "The authorities shall, before a final
determination is made, inform all interested parties of the essential facts under consideration which form the
basis for the decision whether to apply definitive measures. Such disclosure should take place in sufficient time
for the parties to defend their interests." It is thus similar to the obligation in Article 1.2(a), third sentence,
both in terms of what it requires and the general due process objective that it serves. In Guatemala – Cement
II, the panel found that "disclosure of the 'essential facts' forming the basis of a preliminary determination is
clearly inadequate in circumstances where the factual basis of the provisional measure is significantly different
from the factual basis of the definitive measure". (Panel Report, Guatemala – Cement II, para. 8.228
(emphasis added))

explanations regarding the CK -21A forms. The DSI 's motivation in repeatedly seeking copies of
CK-21A forms fro m PMTL appears to have just been simply the desire to obtain copies of those
documents, not PMTL's explanations of the unreliability of the information therein. Notwithstanding,
and whatever the DSI's motivations were in requesting that PMTL provide it wit h copies of the CK-
21A forms, those requests served to communicate the DSI's grounds for doubting the acceptability
of the declared transaction values, and gave PMTL an opportunity to respond.
7.429. Based on the foregoing, having found that Thai authorities we re under an obligation to
communicate to and provide PMTL with an opportunity to respond to the grounds for doubting the
acceptability of the declared transaction value prior to issuing the 2002 -2003 Charges, the Panel's
assessment of the evidence on the r ecord leads it to conclude that the DSI sufficiently discharged
that obligation.
7.3.6.4 Conclusion
7.430. The Panel finds that the Public Prosecutor did not violate the procedural obligation in Article
1.2(a), third sentence, because prior to the issuance of the 2002-2003 Charges the DSI had already
sufficiently communicated its grounds for considering that the relationship between PMTL and PM
Indonesia influenced the price, and PMTL responded.
7.3.7 Article XX of the GATT 1994
7.3.7.1 Introduction
7.431. In the first recourse to Article 21.5, Thailand argued that, insofar as the 2003-2006 Charges
were inconsistent with the provisions of the CVA, they were justified under Article XX(d) of the GATT
1994 as measures "necessary to secure compliance with laws or regulations" and also under Article
XX(a) as measures "necessary to protect public morals ".742 The Panel found that the general
exceptions in Article XX of the GATT 1994 are not applicable to the obligations in the CVA, and
therefore the aspects of the Charges giving ri se to the inconsistency with Thailand 's obligations
under the CVA could not be justified under Articles XX(a) or (d) of the GATT 1994.743
7.432. In this second recourse to Article 21.5, Thailand similarly argues that the 2002-2003 Charges
are justified under Articles XX(a) and XX(d) of the GATT 1994.744 Thailand reiterates its arguments
on why Article XX of the GATT 1994 applies to violations of the CVA 745; maintains that any
inconsistency with the CVA arising from the 2002-2003 Charges is "necessary to secure compliance
with laws or regulations " under Article XX(d) 746, and is also "necessary to protect public morals "
within the meaning of Article XX(a) 747; and also argues, as it did in respect of the 2003 -2006
Charges, that the 2002-2003 Charges are applied consistently with the requirements of the chapeau
of Article XX.748
7.433. The Philippines submits that the Charges are not justified under Article XX of the
GATT 1994.749 The Philippines observes that Thailand's attempt "to re-litigate this issue" before the
Panel may relate to Thailand's appeal in the first recourse to Article 21.5.750 Recalling that the Panel
addressed the merits of Thailand's defence under Article XX(d) and XX (a) of the GATT 1994 in the
first recourse to Art icle 21.5 only in "a limited manner ", the Philippines encourages the Panel "to

742 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.732.
743 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.761.
744 Thailand's first written submission, paras. 3.117-3.173; second written submission, paras. 3.88-
3.113; oral statement, paras. 3.31-3.38. In response to a question from the Panel, Thailand clarified that its
defence under Articles XX(d) and XX(a) of the GATT 1994 applies only to the 2002-2003 Charges. (Thailand's
response to Panel question No. 163(c), para. 2.13.)
745 Thailand's first written submission, paras. 3123-3.139.
746 Thailand's first written submission, paras. 3.140-3.152.
747 Thailand's first written submission, paras. 3.153-3.164.
748 Thailand's first written submission, paras. 3.165-3.173.
749 Philippines' second written submission, paras. 351-413.

address these issues in these second compliance proceedings more fully, in order to assist the
Appellate Body further in understanding the issues, in the event of an appeal".751
7.3.7.2 Main arguments of the parties
7.434. As a threshold issue, Thailand disagrees with the finding by the Panel in the first recourse to
Article 21.5 that Article XX of the GATT 1994 is not available to justify inconsistencies with the
CVA.752 Thailand indicates that it respectfully disagrees with the Panel's analysis, and requests this
Panel "to consider this issue carefully and to reach a different conclusion".753 Thailand reiterates its
arguments that there is a sufficient textual basis for finding that Article XX applies to the CVA, based
on the title of, and preamble to, the CVA and the reference to customs enforcement in Article XX(d);
Thailand also reiterates its arguments that it would be absurd if Article XX was available to justify
an inconsistency with Article VII of th e GATT but not the CVA, and that the CVA must reflect a
balance between a Member's obligations and its right to prosecute customs fraud.754
7.435. Thailand argues, a s it did in the first recourse to Article 21.5 , that the Charges are
provisionally justified under Article XX(d) because they are "necessary to secure compliance " with
Section 27 of the Customs Act.755 Thailand also reiterates its argument that the Charges are designed
to protect "public morals" within the meaning of Article XX(a) because they "fight smuggling and
contraband by prosecuting customs fraud ", which as Thailand noted in the first recourse to
Article 21.5 "represents a real concern for Thailand ".756 With respect to the "necessity" of any
inconsistencies with the CVA relating to the Charges, Thailand submi ts, in relation to both
Article XX(d) and XX(a), that "in order to fulfil the important objective of combatting customs fraud,
the Public Prosecutor had to follow rules that differ from customs valuation rules " regarding issues
like cooperation with the importer and the sequential application of customs valuation methods .
Thailand further submits that the Charges are not trade-restrictive.757
7.436. Thailand argues that the Charges satisfy the requirements of the chapeau of Article XX of
the GATT 1994.758 Thailand submits that "just like with respect to the 03-06 Charges at issue in the
first compliance proceedings, there is no indication that the 02-03 Charges are applied in an arbitrary
or unjustifiable discriminatory manner, or as a disguised restriction on international trade".759
7.437. The Philippines maintains that Article XX of the GATT 1994 does not apply to justify violations
of the CVA. 760 The Philippines submits that there is no sufficient textual basis to make Article XX
applicable to the CVA. 761 The Philippines submits that Thailand 's reiteration of other arguments
already rejected by the Panel in the first re course to Article 21.5 is also unavailing, including
Thailand's argument that the inapplicability of Article XX to the CVA would lead to an absurd result
as a consequence of the applicability of Article XX to Article VII of the GATT 1994, and Thailand 's
argument that Article XX must apply to the CVA since this is the only way to establish a "balance"
between a Members' obligations and a Members' right to regulate.762
7.438. Regarding Article XX(d), the Philippines submits, as it did in the first recourse to Article 21.5,
that the 2002-2003 Charges are not "designed" or "necessary" to secure compliance with
Section 27.763 The Philippines again emphasizes that, in seeking justification under Article XX,
Thailand must demonstrate why the specific aspect of the measure that is WTO -inconsistent is
necessary to secure compliance. 764 The Philippines reiterates that Section 27 seeks to enforce
Section 10bis of the Customs Act, which requires, according to the Philippines, that "the correct

752 Thailand's first written submission, paras. 3.123-3.139.
753 Thailand's first written submission, para. 3.121.
754 Thailand's first written submission, para. 3.123-3.139.
755 Thailand's first written submission, paras. 3.140-3.152.
756 Thailand's first written submission, para. 3.160.
757 Thailand's first written submission, paras. 3.149-3.151, and 3.162-3.163.
758 Thailand's first written submission, paras. 3.165-3.173.
759 Thailand's first written submission, para. 3.168.
760 Philippines' second written submission, paras. 354-366.
761 Philippines' second written submission, paras. 357-359.
762 Philippines' second written submission, paras. 360-366.
763 Philippines' second written submission, paras. 376-392.
764 Philippines' second written submission, paras. 374 and 398.

amount of the duties owed [be] calculated on the basis of an assessment of the 'price' – that is, the
customs value - of the goods".765 The Philippines insists that "[e]nforcement of the correct amount
of custom duties owed depends on establishing a correct … customs value"766, and that "[l]ogically,
there can never be a circumstance where an incorrect customs valuation decision is 'necessary' to
ensure the collection of the correct amount of customs duties."767 On the same basis, the Philippines
submits that "[t]he WTO-inconsistent customs valuati on in the 02 -03 Charges is … incapable of
securing compliance with Section 27 "768, and "there is simply no relationship between, on the one
hand, the WTO-inconsistent customs valuation in the 02 -03 Charges and Thailand 's fight against
smuggling and contraband, on the other".769 As in the first recourse to Article 21.5, t he Philippines
submits that the Charges are not "designed" or "necessary" to prot ect public morals under
Article XX(a), for the same reasons that they are not justified under Article XX(d).770
7.439. Finally, the Philippines submits, as it did in the first recourse to Article 21.5, that the 2002-
2003 Charges constitute a "disguised restriction " on trade, and therefore fail to meet the
requirements of the chapeau of Article XX. 771 The Philippines re iterates that PMTL is the largest
importer of cigarettes into Thailand, and that the potential fines of USD 2.35 billion threaten "the
very survival of [PMTL] , and hence the Philippines ' exports of cigarettes to Thailand ".772 The
Philippines recalls that Thailand's Ministry of Finance owns TTM, which enjoys a monopoly over the
production of cigarettes in Thailand, and "[has] complain[ed] to the Thai authorities regarding the
erosion of its competitive position by imports ".773 The Philippines suggests that "[a]n objective
survey of the repeated actions impugned in the DS371 proceedings, as well as the broader context
of this dispute, leads inexorably to the view that Thailand has engaged in a consistent pattern of
disguised restrictions on trade, ever since the Thai market was opened to import competition in
1991."774
7.3.7.3 Analysis by the Panel
7.440. Thailand's defence under Article XX of the GATT 1994 raises two main issues. First, whether
Article XX is available to justify a violation of the CVA. If so, the second issue is whether Thailand
has demonstrated that the aspects of the Charges giving rise to the inconsistency with the CVA are
justified under either Articles XX(d) or XX(a). The Panel addresses these issues in turn.775
7.3.7.3.1 Applicability of Article XX of the GATT 1994 to the CVA
7.441. The Panel recalls that Article XX of the GATT 1994 reads in relevant part:
General Exceptions
Subject to the requirement that such measures are not applied in a manner which would
constitute a means of arbitrary or unjustifiable discrimination between countries where
the same conditions prevail, or a disguised restriction on international trade, nothing in
this Agreement shall be construed to prevent the adoption or enforcement by any
contracting party of measures:
(a) necessary to protect public morals;

765 Philippines' second written submission, para. 376. (emphasis original)
770 Philippines' second written submission, paras. 401 and 403.
771 Philippines' second written submission, paras. 405-413.
772 Philippines' second written submission, paras. 409 and 412.
775 As noted in the Report in the first recourse to Article 21.5, this order of analysis is the one that the
Appellate Body has instructed panels to follow. Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 –
Philippines), footnote 1597 (referring to Appellate Body Report, China – Publications and Audiovisual Products,
para. 214).

…
(d) necessary to secure compliance with laws or regulations which are not inconsistent
with the provisions of this Agreement, including those relating to customs enforcement,
the enforcement of monopolies operated under paragraph 4 of Arti cle II and Article
XVII, the protection of patents, trade marks and copyrights, and the prevention of
deceptive practices
7.442. In the first recourse to Article 21.5, t he Panel concluded that the general exceptions in
Article XX of the GATT 1994 do not apply to the obligations in the CVA. 776 The Panel began its
analysis of this issue by recalling that the Appellate Body "has articulated and applied a standard
'analytical approach' that entails an agreement -by-agreement analysis that starts with the text of
the covered agreement in question, and which entails a 'thorough analysis of the relevant provisions',
on the understanding that the lack of an express textual reference is not dispositive in and of
itself".777 The Panel proceeded to sequentially consider Thailand's arguments regarding the title of
the CVA778; the preamble of the CVA779; the reference to "customs enforcement" in Article XX(d)780;
the alleged absurdity that would result from Article XX being applicable to violations of Article VII of
the GATT but not to violations of the CVA781; and the need to strike a balance between the obligations
assumed under the CVA and the right to take measures to combat customs fraud.782 For the reasons
set forth in its Report in the first recourse to Article 21.5, the Panel was not persuaded that Thailand's
arguments provided any basis to find that Article XX of the GATT 1994 is applicable to the CVA.
7.443. In this second recourse to Article 21.5, Thailand r equests that the Panel re -examine the
same issue, and reverse its finding that Article XX is not applicable to the CVA. In line with the
approach explained earlier783, the Panel will confine the scope of such re -examination to any novel
arguments presented in the context of this second recourse to Article 21.5.
7.444. The Panel's assessment is that Thailand's submissions on the applicability of Article XX of
the GATT 1994 to the CVA mostly express its disagreement with the reasoning of the Panel in the
first recourse to Article 21.5, without presenting any novel arguments. First, Thailand reiterates its
argument that "there may be no direct reference in the CVA, but, as Thailand has explained, the
CVA is 'closely intertwined' with the GATT 1994 because it elaborates rules for the application of the
provisions of Article VII" as reflected in the preamble.784 Second, Thailand reiterates its arguments
regarding the significance of the t itle of the CVA and elaborates on why Thailand "respectfully
disagrees that its argumen ts before the first compliance panel were unduly formalistic or placed
undue weight on the reference to Article VII in the title of the CVA" and that it may "just as readily
be argued that it is overly formalistic " to reason as the Panel did .785 Third, Thailand recalls that it
"also argued that, because of the nature of the relationship between the CVA and Article VII of the
GATT 1994, it could lead to absurd situations if a Member could justify a violation of Article VII by
invoking the exceptions in Article XX, but it could not do so with respect to its obligations under the
CVA, notwithstanding that the CVA implements the obligations in Article VII"; in this regard, Thailand
explains why it does not find persuasive force in the Panel's observation that the CVA contains rules
that are different from and additional to Article VII, and also recalls the need to read the CVA and
Article VII holistically, and the title and preamble of the CVA.786 Finally, Thailand recalls the Panel's
view that there is an inherent b alance in the CVA between the Member 's obligations and the
Member's right to regulate, and that this balance "finds reflection primarily through the relatively
limited scope of the substantive and procedural obligations contained in the CVA "787, and then

776 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.742-7.757.
777 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.744 (referring to
Appellate Body Reports, China – Rare Earths, paras. 5.61-5.63).
778 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.748.
779 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.749.
780 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.750.
781 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.751-7.753.
782 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.754-7.756.
783 See Section 7.1.2.2 (Reliance on the Report in the Philippines' first recourse to Article 21.5).
784 Thailand's first written submission, para. 3.124.
785 Thailand's first written submission, para. 3.125-3.128.
786 Thailand's first written submission, paras. 3.129-3.134.
787 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.756.

Thailand reiterates that if the CVA applies to customs fraud "the necessary policy space to conduct
criminal investigations and prosecutions can be situated only in the exceptions in Article XX".788
7.445. In the absence of any novel arguments that would warrant a further re-examination of this
issue, the Panel agrees with the European Union's view that "the First Compliance Panel has already
addressed sufficiently the arguments under Article XX of the GATT 1994, which it rightly considered
inapplicable to claims under the CVA".789 The Panel will confine its discussion to offering the following
two observations on how the parties ' arguments on a range of issues outside of the cont ext of
Article XX of the GATT 1994 in this case reinforce the legal findings an d reasoning on the non -
applicability of Article XX to the CVA already developed in the Panel's Report in the first recourse to
Article 21.5.
7.446. First, the Panel considers that the parties' arguments in this case highlight the far-reaching
consequences of finding that CVA obligations are subject to the general exceptions in Article XX of
the GATT 1994. Some of the arguments that Thailand has advanced in support of its position on the
applicability of Article XX of the GATT 1994 to the CVA ar e inextricably linked to the narrow subset
of measures comprising criminal measures taken to prosecute allegations of customs fraud 790, and
Thailand invokes a defence under Article XX of the GATT 1994 only insofar the Panel finds that the
2002-2003 Charges (as opposed to the 1,052 revised NoAs) are inconsistent with the substantive
or procedural obligations of the CVA. However, as a matter of legal principle, if the obligations in the
CVA are subject to the general exceptions in Article XX of the GATT, then i t would follow that any
measure that violates any CVA obligation – and not merely a limited subset of penal measures
related to customs fraud – could in principle be justified under Article XX of the GATT 1994. 791
Therefore, if the Panel was to accept Thaila nd's argument that Article XX exceptions must apply to
the CVA in order to allow Members "policy space"792 to deviate from CVA rules when conducting
criminal investigations into customs fraud, it would see no a priori basis upon which to deny Members
similar policy space to deviate from CVA rules in a range of other situations, unrelated to penal
measures related to customs fraud, in which they encounter other kinds of difficulties in applying
the rules set forth in Articles 1 through 7 of the CVA.793
7.447. This is not to suggest that there is no reasonable flexibility under the CVA, and it brings the
Panel to the second observation as to how the parties' arguments outside of the context of Article XX
of the GATT 1994 in this case reinforce the legal findings and reas oning on the non-applicability of
Article XX to the CVA already developed in the Panel 's Report in the first recourse to Article 21.5.
Article 7 of the CVA was not at issue in the first recourse to Article 21.5, and that is one reason why
the Panel did not specifically discuss it when discussing the "inherent balance " in the CVA. 794
However, the Panel 's earlier discussion of this provision in the context of addressing the parties '
arguments relating to Article 7 is germane to the question of whether the gener al exceptions in

788 Thailand's first written submission, paras. 3.137.
789 European Union's third-party submission, para. 21. The Panel notes that none of the third parties
have identified any novel argument, circumstance or legal development that would suggest a different
conclusion regarding the applicability of Article XX of the GATT 1994 to the CVA. Japan states that it agrees
with the conclusion of the first compliance panel that Article XX of the GATT 1994 is not available to justify
measures that are found to be inconsistent with the CVA, and then reiterates the same arguments that it
presented on this point in the first recourse to Article 21.5. (Japan's third-party submission, paras. 3-8.)
790 These arguments include, most notably, Thailand's argument that Article XX of the GATT 1994 must
be available to justify the CVA-inconsistent measures relating to customs enforcement because the text of
Article XX(d) expressly refers to "customs enforcement", and Thailand's argument regarding the need to strike
a balance between the obligations assumed under the CVA and the right to take measures to combat customs
fraud.
791 In this regard, the Panel fully agrees with Thailand when it says that "the question of the applicability
of Article XX to the CVA cannot be resolved by examining a specific measure in a specific dispute. It should be
considered in the abstract, and not in relation to the particular measure at issue before a panel." (Thailand's
first written submission, para. 3.138.)
792 See e.g. Thailand's first written submission, paras. 3.130, 3.135, 3.136, 3.137, and 3.173.
793 For example, in the first recourse to Article 21.5, the Panel addressed Thailand's argument that the
BoA encountered significant difficulties in identifying an appropriate comparison group within the Thai cigarette
market. (see Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.153-7.156
and 6.14-6.15.) In this proceeding, Thailand submits that, in its view, the Report in the first recourse to
Article 21.5 "makes clear that it is virtually impossible to identify an appropriate amount for profit and general
expenses in the Thai market other than PMTL's own ratio". (Thailand's first written submission, para. 3.102.)
794 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.756.

Article XX of the GATT 1994 apply to the CVA. Article 7 envisages that there may be circumstances
in which the value of imported goods cannot be determined under the provisions of Articles 1 through
6, and already provides for the possibility that, in such circumstances, those methods may be applied
with "a reasonable flexibility ".795 The existence of Article 7 and the reasonable flexibility that it
provides for further underscore the inherent balance in the CVA.
7.448. In addition, the balance reflected in the specific provisions of Article 7.1 and 7.2 is another
indication that the drafters would not have intended for another layer o f general exceptions in
Article XX of the GATT 1994 to apply. The Panel recalls that Articles 1 through 7 of the CVA establish
a comprehensive system for customs valuation, comprising a series of multiple different steps and
methods subject to detailed rules governing their sequential application.796 Article 7.1 mandates that
the customs value must be determined using "reasonable means consistent with the general
provisions of this Agreement and of Article VII of GATT 1994 and on the basis of data available in
the country of importation", but Article 7.2 then categorically prohibits any of the seven enumerated
bases set forth in Article 7.2(a) through (g). Given the logic and structure of these rules, and the
flexibility already provided for in Article 7.1, interpolating the general exceptions in Article XX of the
GATT 1994 into the CVA would create additional policy space for Members to use one or more of the
valuation bases that go beyond the "reasonable flexibility" already provided for in Article 7.1, and/or
which are categorically prohibited by the text of Article 7.2(a) through (g). In the Panel 's view,
consideration of the specific terms of Article 7 of the CVA suggests that subjecting the comprehensive
system for customs valuation established in the CVA to the general exceptions in Article XX of the
GATT 1994 would diminish Members' obligations contrary to Articles 3.2 and 19.2 of the DSU.
7.449. The Panel concludes that the general exceptions in Article XX of the GATT 1994 are not
applicable to the obligations in the CVA. The Panel hereby incorporates by reference the reasoning
in Section 7.3.7.3.1 (Applicability of Article XX of the GATT 1994 to the CVA) of the Panel Report in
the first recourse to Article 21.5.
7.3.7.3.2 Justification under Article XX(a) or XX(d)
7.450. Having found that the general exceptions in Article XX of the GATT 1994 are not applicable
to the obligations in the CVA, the Panel in the first recourse to Article 21.5 observed that it was
therefore unnecessary to examine whether the Charges are justified under Article XX(d) or XX(a) of
the GATT 199 4.797 The Panel observed that in analogous circumstances, some other panels had
nonetheless proceeded to make additional findings under Article XX to assist the Appellate Body in
the event that the finding on the non-applicability of Article XX was reversed on appeal.798 However,
the Panel stated that Thailand's defences under Article XX(d) and XX(a) of the GATT 1994 essentially
reiterated its earlier argument that the Charges do not involve any customs valuation determination
in the first place, and rested on the same factual premises that the Panel had already addressed in
the context of addressing Thailand 's arguments regarding the applicability of the CVA to the
Charges.799 Therefore, in the circumstances of the first recourse to Article 21.5, the Panel saw no
reason to proceed with any further assessment of the merits of Thailand's defences under Article XX
of the GATT 1994.800
7.451. In their requests for review of the Interim Report in the first recourse to Article 21.5, both
parties requested that the Panel reconsider its approach and make additional findings under
Article XX of the GATT 1994. For its part, Thailand disagreed with the Panel's characterization that
Thailand's defences under Article XX( d) and XX (a) "essentially reiterate" the argument that "the
Charges do not involve any customs valuation determination in the first place, and that the reference
to the King Power prices merely serves the purpose of providing a possible benchmark to the Criminal
Court to impose fines in the event of a conviction", and Thailand requested the Panel to also address
what Thailand referred to as "the specific facts and arguments" put forward by Thailand in relation
to its defences under Article XX. 801 The Philippines requested that the Pa nel supplement the

795 See paragraph 2 of the Interpretative Note to Article 7; Panel Report, Thailand – Cigarettes
(Philippines), para. 7.285.
796 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.752.
797 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.758.
798 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.758.
799 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.759.
800 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.760.
801 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 6.45.

observations contained in paragraph 7.759 of the Report by explicitly stating the necessary
consequence of its findings in paragraph 7.759 of the Report, which in the Philippines' view is that
the "aspect of the Charges that needs to be justified under Article XX" is not the use of King Power's
prices as a possible benchmark for the imposition of a fine, but, rather the Charges ' WTO-
inconsistent customs valuation. The Philippines further requested the Panel to confirm that a WTO-
inconsistent customs valuation could never, by definition, be "necessary" for the proper enforcement
of Thailand's customs laws.802
7.452. The Panel was not persuaded that there was any need to revise its characterization of
Thailand's argumentation under Article XX, to make the statements requested by the Philippines, or
to make any other findings on the merits of Thailand 's defences under Article XX. In addressing
these requests for review in relation to the Interim Report in the first recourse to Article 21.5, the
Panel stated:
Having carefully considered the parties ' requests, we are not convinced that there is
any reason to modify or add to the existing text of paragraph 7.759. First, while we
note that Thailand disagrees with our characterization of how its defences under Article
XX(a) and (d) relate to its arguments regarding the applicability of the CVA, and while
we recognize and appreciate that it has made very detailed submissions elaborating its
defences under Article XX(a) and (d), we are not persuaded that we have incorrectly or
unfairly characterized its essential arg ument. Second, we understand the Philippines '
requests to be motivated by the concern that, if Thailand were to successfully appeal
the Panel 's findings on the applicability of Article XX to the CVA, there may be
insufficient findings on the record to comp lete the analysis as to whether the Charges
are justified under Article XX. As already indicated in paragraphs 7.758 to 7.760, we
are not convinced that we need to make any additional factual findings, beyond those
already made in earlier sections of its Report, to assist the Appellate Body in completing
the analysis under Article XX. Likewise, we do not see how the Appellate Body 's ability
to complete the analysis would turn on the presence or absence, in our Report, of the
particular statements requested by the Philippines. Accordingly, we have not revised
paragraph 7.759.803
7.453. As in the first recourse to Article 21.5, the question is whether the Panel should proceed to
make additional findings on the merits of Thailand's defences under Article XX of the GATT 1994. In
this second recourse to Article 21.5, the Philippines encourages the Panel "to address these issues
… more fully, in order to assist the Appellate Body further in understanding the issues, in the event
of an appeal".804 However, the Philippines doe s not identify any distinguishing circumstances that
would warrant this Panel adopting a different approach from that used in the first recourse to Article
21.5 and making arguendo findings on the merits of Thailand 's defences under Article XX(d) and
XX(a).
7.454. The Panel sees no distinguishing circumstances. Thailand's defences under Article XX(d) and
XX(a) of the GATT 1994 in this second recourse to Article 21.5, concerning the 2002-2003 Charges,
reiterate essentially the same arguments that the Panel has already addressed in the context of
addressing whether the Charges contained insufficient information and the applicability of the CVA,
and in the context of addressing the CVA-consistency of the Charges. Specifically, Thailand reiterates
its argument that the Charges are a mere allegation of customs fraud and not a final
determination805, an argument that the Panel has already addressed in the context of examining
Thailand's argument concerning the "insufficient information" contained in the Charges. Thailand
reiterates its argument that "it was reasonable to suspect ", and the Public Prosecutor "had
reasonable grounds to assume", that PMTL had engaged in customs fraud on the basis of the cost

802 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 6.45.
803 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 6.45.
805 In the context of arguing that the 2002-2003 Charges are "necessary" under Article XX(d) and
XX(a), Thailand also provides a reformulation of its earlier "ripeness" argument, stating that the 2002-2003
Charges filed by the Public Prosecutor "are a mere allegation of customs fraud", that "the Public Prosecutor's
duty under Thai law is to present a file to the Court that provides it with sufficient support to commence a
trial", and that it is "not its duty to make the final determination of whether the accused actually engaged in
customs fraud or not". (Thailand's first written submission, para. 3.150.)

information reported in form CK -21A806, an argument that the Panel has already thoroughly
addressed in the context of assessing the CVA-consistency of the Thai authorities' reliance on the
cost information reported in the CK-21A forms. Thailand reiterates its argument that the procedural
obligations in Article 1.2(a), third sentence, of the CVA cannot be applied in the context of criminal
investigations807, an argument that it is not necessary to consider in the context of Article XX because
the Panel has found that the DSI discharged any obligation arising under that provision in res pect
of the 2002-2003 Charges. In sum, the Panel considers that it need not make any additional factual
findings to enable the Appellate Body to complete the analysis under Article XX(d) and (a) of the
GATT 1994, because its earlier findings, set out in the previous Sections of this Report, are sufficient
for those purposes.
7.455. The Panel therefore concludes that the dis puted issues under Article XX do not raise the
kinds of factual issues on which further findings by the Panel would be a necessary precondition for
the Appellate Body to complete the analysis under Article XX in the event that it reverses the Panel's
finding on the non -applicability of Article XX to the CVA. Accordingly, in the circumstances of this
case, the Panel sees no practical reason to further assess the merits of Thailand's defences under
Article XX of the GATT 1994.808
7.3.7.4 Conclusion
7.456. For these rea sons, the Panel finds, as it did in the first recourse to Article 21.5, that the
general exceptions in Article XX of the GATT 1994 are not applicable to the obligations in the CVA,
and therefore that the aspects of the 2002-2003 Charges giving rise to the inconsistency with
Thailand's obligations under the CVA cannot be justified under Article XX(a) or (d) of the GATT 1994.
7.4 The 1,052 revised Notices of Assessment (NoAs)
7.4.1 Introduction
7.457. In addition to its claims regarding the 2002 -2003 Charges, the Philippines challenges the
CVA-consistency of 1,052 revised Notices of Assessment (NoAs) that PMTL received in November
2017 from Thailand's Customs Department. As with the Charges, the NoAs rejected PMTL's declared
transaction values, and determined revised customs values based on the cost and profit information
reported by PM Indonesia to the Indonesian tax authorities in the CK -21A form. The NoAs cover
1,052 entries of cigarettes imported over the period 2001 -2003, including 779 of the 780 entries
covered by the 2002-2003 Charges. For those overlapping entries, the "actual price" reflected in the
NoAs is identical to the "actual price" reflected in the Charges. The NoAs demanded that the importer,
PMTL, pay additional taxes and duties, a penalty and a surcharge in re lation to each of the entries
covered.809 The total of these amounts, in respect of all entries, was THB 25,480,317,518
(approximately USD 800 million).810
7.458. The Philippines brings almost identical legal claims under the CVA in respect of both the
NoAs and the Charges, and its argumentation in support of those claims is also virtually identical.

806 Thailand's first written submission, para. 3.150.
807 Thailand's defences under Article XX(d) and XX(a) reiterate the argument that because "the CVA
requires that the process of customs valuation should be carried out with the cooperation of the importer when
the importer is affiliated to the exporter", this rule "cannot be applied in criminal investigations, because in
criminal investigations the accused has the right to remain silent, which is the opposite of cooperating with the
authority". (Thailand's first written submission, para. 3.149.)
808 At footnote 1624 of its Report, the Panel referred to China – Raw Materials, China – Rare Earths, and
India – Solar Cells as examples of panels making additional factual findings under Article XX principally for the
purpose of assisting the Appellate Body in the event of a reversal of their interpretation of Article XX on appeal.
After the issuance of the Report in the first recourse to Article 21.5, the panel in EU – Energy Package followed
a similar approach. In that case, the panel concluded that the European Union had not demonstrated that
natural gas is a product "in short supply" in the European Union, within the meaning of Article XX(j) of the
GATT 1994. However, the panel considered that in the circumstances of that case, it was appropriate "to follow
the approach of certain previous panels in conducting a limited analysis and review so that the Appellate Body
may have the benefit of our factual findings" related to certain other elements of the legal standard in
Article XX(j). (Panel Report, EU – Energy Package, para. 7.1354.)
809 See sample Notices of Assessment, (English translation), (Exhibit PHL-240-B).

The only notable difference is that the Philippines brings an additional claim in relation to the NoAs,
relating to the obligation in Article 16 of the CVA, that it does not pursue in respect of the 2002 -
2003 Charges. Thailand states that its arguments in respect of the CVA -consistency of the 2002 -
2003 Charges apply mutatis mutandis to the Philippines' corresponding claims regarding the NoAs.
In respect of the one additional procedural claim, Thailand submits that the Philippines has failed to
demonstrate that Thailand has acted inconsistently with Article 16 because, following the request by
PMTL, the Thai Customs Department sufficiently explained the grounds for issuing the NoAs.
7.459. As a threshold matter, Thailand requests the Panel to decline to rule on the NoAs because
they were withdrawn before the Panel was established. In support of its request, Thailand submits
that the NoAs have ceased to have legal effects as of the dates of their withdrawal and that there is
no risk of them being reintroduced, and in any event ruling on the NoAs would not provide a positive
solution to the dispute. 811 In response to Thailand 's request, the Philippines highlights some
"uncertainties" arising from certain letters sent by the Thai Customs Department to PMTL to
communicate the "withdrawal" or "termination" of the 1,052 revised NoAs.812 The Philippines
underscores that the Panel must conduct its own objective assessment of the argumentation and
evidence before it, and may not merely rely on Thailand 's representations regarding the alleged
withdrawal of the measures and the alleged imposs ibility of their reintroduction. 813 While the
Philippines initially invite d the Panel not to rule on the NoAs subject to, and on the basis of, the
Panel finding that Thailand has withdrawn the NoAs and that they will not be reintroduced 814, it
subsequently requests the Panel to reject Thailand's request with respect to at least a subset of the
1,052 revised NoAs.815
7.4.2 Main arguments of the parties
7.460. Thailand submits that "panels have a margin of discretion in deciding whether to make
findings with respect to expired measures" and indicates that "on several occasions panels have
used this authority to decide not to rule on a measure that was withdrawn before the establishment
of the panel".816 First, Thailand argues that ruling on the NoAs would do nothing to secure a positive
solution to the dispute. Since PMTL requested the revocation of the NoAs and obtained that outcome
prior to the establishment of the Panel, "[PMTL]/the Philippines cannot credibly argue that further
action by the Panel is required to achieve a posit ive solution to this aspect of the dispute ".817
Moreover, a ruling on the NoAs would not impose any implementation obligation on Thailand and
could not be the basis for any claim of nullification or impairment by the Philippines. Thailand also
adds that "to the extent that the legal and factual arguments put forward by the Philippines regarding
the NoAs mirror very closely those regarding the 02-03 Charges, a decision not to rule on the NoAs
would not materially limit the Philippine's case".818
7.461. Second, Thailand claims that there is no "clear evidence" that the NoAs will or even could be
reintroduced.819 According to Thailand, because of the statute of limitations of 10 years under
Section 21 of the Customs Act, the 1,052 revised NoAs should not have been issued in the first place
and cannot be reintroduced. Furthermore, 796 of those NoAs should not have been issued because
they had already been the subject of final decisions by the BoA. Therefore, there is no legal basis
under Thai law by which Thailand could reintroduce the withdrawn measure.820 Moreover, "the Panel
should assume that WTO members will perform their WTO obligations in good faith consistently with
Article 3.10 of the DSU and Article 26 of the Vienna Convention on the Law of Treaties".821
7.462. Lastly, Thailand argues that given that the NoAs have been withdrawn and have no further
legal consequences, there are no "lingering effects". In Thailand's view while panels have also looked

811 Thailand's first written submission, paras. 2.1-2.53; Thailand's second written submission,
paras. 2.1-2.43.
812 Philippines' second written submission, paras. 14-42.
813 Philippines' response to Panel question No. 129.
814 Philippines' second written submission, paras. 35 and 42.
815 Philippines' opening statement at the meeting of the Panel, para. 13.
816 Thailand's first written submission, para. 2.17.
817 Thailand's first written submission, para. 2.33.
818 Thailand's first written submission, para. 2.33.
819 Thailand's first written submission, para. 2.34.
820 Thailand's first written submission, para. 2.34.
821 Thailand's first written submission, para. 2.35.

at whether the expired measure at issue had any "lingering effects", they have d one so only in a
limited number of cases.822 Thailand explains that lingering effects were considered relevant for the
particular context of subsidies, where the effects of a subsidy may continue to be felt in the market
after the subsidy has been disbursed or a subsidy programme had expired or been withdrawn823; it
notes that outside the particular context of subsidies, however, the possible continued effects of a
measure that was terminated or expired prior to the establishment of the panel have not been
accorded much significance in determining whether or not to rule.824
7.463. In response to Thailand 's request, the Philippines highlights some "uncertainties" arising
from certain letters sent by the Thai Customs Department to PMTL to communicate the "withdrawal"
or "termination" of the 1,052 revised NoAs. The Philippines notes that the Thai Customs Department
has divided the 1,052 NoAs in two groups - one covering 796 NoAs and the other the remaining 256
NoAs - and addresses them in the same manner. With respect to 79 6 NoAs, the Philippines first
indicates that the letter of 21 March 2018 "cancelling" said NoAs on the grounds that they had
already been the subject of a final decision by the BoA does not identify any specific provision of
Thai law in support of that dec ision and does not appear to have been signed by an official with
authority to bind the Customs Department.825 Furthermore, in its subsequent oral statement made
during the substantive meeting, the Philippines adds that the Panel must take into account additional
facts relating to 208 of the 796 NoAs. The Philippines recalls that on 7 May 2018, the Supreme Court
found that the BoA had improperly valued the 208 entries and, as a result, the Customs department
must now take action to implement the Supreme Court 's decision.826 In these circumstances, the
Philippines indicates that it wishes to avoid any possibility that Thailand, in implementing the
Supreme Court's decision, will reintroduce the customs valuation determinations made in the 208
NoAs and "invites Thailand to make explicit that it will comply with both the Panel 's findings on the
208 entries and the Supreme Court ruling".827
7.464. Second, as concerns the remaining 256 NoAs, the Philippines initially notes that the letter of
23 March 2018 addressed by the Customs Department to PMTL in respect of these NoAs states that
the Customs Department would "not proceed with the civil lawsuit to require [payment of] the taxes
and duty shortage from [PMTL] ".828 The Philippines states that, based on this language, "it was
unclear whether the 256 NoAs – including the customs valuation determinations they entail –
continued to exist, but would not be enforced "829 or whether they had been "cancelled, terminated
or revoked".830 As a further point of uncertainty, the Philippines furthe r points to the letter dated
13 June 2018 sent by the Permanent Mission of Thailand to the WTO to the Permanent Mission of
the Philippines to the WTO, enclosing a statement from the Director -General of the Thai Customs
Department dated 18 May 2018 to the effect that the 1,052 revised NoAs had been terminated. 831
In the Philippines ' view, the language used in the Director -General's statement, which is that the
256 NoAs were "terminated", is inconsistent with the earlier letter of 23 March, concerning the same
NoAs, which stated that the Customs Department would not "proceed with civil action to enforce
payment of the 256 NoAs ". However, the Philippines subsequently points to the BoA 's ruling of
30 August 2018 issued in the importer 's appeal regarding all 1,052 revised NoAs which states that
the BoA is "revoking" the 256 NoAs. On the basis of this ruling, the Philippines indicates that it now
accepts that the 256 NoAs have been definitively revoked but clarifies that their date of revocation
is 30 August 2018, which is several months after the Panel's establishment.832
7.465. On account of these uncertainties, the Philippines states that it is "unable to withdraw
voluntarily its complaint " regarding the NoAs. 833 Despite these uncertainties, the Philippines
indicates that "[in] the interests of security and predictability for the importer, [it] invites the Panel
to confirm Thailand's representations to this Panel regarding the [1,052 NoAs] and, in that event,

822 Thailand's first written submission, para. 2.25.
823 Thailand's first written submission, para. 2.25.
824 Thailand's first written submission, para. 2.27.
826 Philippines' opening statement at the meeting of the Panel, para. 22.
827 Philippines' opening statement at the meeting of the Panel, paras. 23-28.
832 Philippines' opening statement at the meeting of the Panel, paras. 9-13.
833 Philippines' second written submission, paras. 35 and 42.

not to rule on [them] on the basis that: first, Thailand has withdrawn them; and, second, there is
no risk that Thailand will reintroduce [them], or the customs valuation methodology in [them]
through subsequent actions to apply or enforce them ".834 However, during the meeting with the
Panel, the Philip pines subsequently requested, in respect of the 256 NoAs, the Panel to reject
Thailand's request to decline to rule on the grounds that they were revoked after the Panel 's
establishment.835
7.4.3 Analysis by the Panel
7.4.3.1 General considerations
7.466. At the outset, the Pan el recalls that the issue of expired, withdrawn, terminated, or
revoked836 measures is not explicitly addressed by the DSU or any other WTO agreement. In the
absence of any provision in the WTO agreements concerning expired measures, the Panel will turn
to the existing WTO case law for guidance. This is not the first time that a panel has been confronted
with the situation in which one or more of the measures at issue was allegedly withdrawn or
terminated prior to or after the establishment of the panel.
7.467. There is no question, and it is undisputed by the parties, that the Panel has jurisdiction to
rule on the 1,052 revised NoAs: they are specifically identified in the request for the establishment
of the panel as required by Article 6.2 of the DSU, and for reasons already stated the Panel considers
that they have a sufficiently close nexus with the DSB's recommendations and rulings and certain of
Thailand's declared measures taken to comply. 837 The Appellate Body has observed that the DSU
"nowhere provides tha t the jurisdiction of a panel terminates or is limited by the expiry of the
measure at issue".838 However, the fact that the Panel has jurisdiction to rule on the NoAs does not
mean that it is legally required to do so. As Thailand rightly notes, panels enjoy a margin of discretion
in deciding whether to make findings with respect to expired measures. As recently reaffirmed by
the Appellate Body in EU – PET (Pakistan), "a panel has a margin of discretion in the exercise of its
inherent adjudicative powers und er Article 11 of the DSU ", and that "[w]ithin this margin of
discretion, it is for a panel to decide how it takes into account subsequent modifications to, or expiry
or repeal of, the measure at issue".839
7.468. In deciding whether to make findings on expired, te rminated, revoked, or repealed
measures, panels have been guided by the general objective of securing a positive solution to the
particular dispute. In some circumstances, panels have declined to make any findings on the
challenged measure; in other circumstances, panels have made findings but refrained from making
any recommendation; and in other circumstances, panels have made both findings and
recommendations. Panels have attached importance to several different considerations, including
most notably ( 1) whether the measure at issue was withdrawn prior to, or only after, the
establishment of the panel by the DSB; ( 2) whether there was a risk of reintroduction of the same
or materially similar measure; and (3) whether findings on the withdrawn measure would have any
practical value for implementation in the light of other findings on materially similar measures. None
of these three considerations is decisive in and of itself, and they do not necessarily exhaust the
circumstances that panels may take into ac count when deciding how to exercise their discretion in

834 Philippines' second written submission, paras. 35 and 42.
835 Philippines' opening statement at the meeting of the Panel, paras. 13-14.
836 In the remainder of this section, the Panel uses "withdrawn", "terminated" or "revoked"
interchangeably. These terms appear to be used interchangeably in the case law. In the original proceeding,
the Panel drew an important distinction between measures that have "expired or ceased to exist" at the time of
establishment (such as legislation) and measures that could be described as a "completed and final" act (such
as individual customs valuation determinations that would by their nature, normally have been completed by
the time such claims are brought before a WTO panel). (Panel Report, Thailand – Cigarettes (Philippines), para.
7.46.) The Panel fully agrees with the original panel's distinction, and its resulting decision to examine and
make findings on individual customs valuation determinations that had been completed prior the establishment
of the panel. (See Panel Report, Thailand – Cigarettes (Philippines), paras. 7.40-7.51.)
837 See Section 7.1.3.1 (The nexus between the Charges/NoAs and DSB recommendations and rulings).
838 Appellate Body Report, EC – Bananas III (Article 21.5 – Ecuador II / US), para. 270 (See also Panel
839 Appellate Body Report, EU – PET (Pakistan), para. 5.19 (referring to Appellate Body Reports, EU –
Fatty Alcohols (Indonesia), para. 5.180; EC – Bananas III (Article 21.5 – Ecuador II / US), para. 270. See also
Panel Reports, US – Poultry (China), para. 7.54; EC – IT Products, para. 7.165; and EC – Approval and

respect of withdrawn measures. However, the Panel considers that these represent the main
considerations that panels would take into account in most cases involving withdrawn measures,
and they will serve as the general framework for the Panel's analysis. The Panel briefly elaborates
on each of these considerations below.
7.469. Beginning with the timing of withdrawal, in many instances where expired measures arose
in past cases, panels have paid particular attention to whether the measures in question had expired
before or only after the panel 's establishment by the DSB. This has generated on the one hand a
line of case law addressing measures that expired before panel establishment and on the other hand
a li ne of case law addressing measures that expired after panel establishment. In respect of
measures withdrawn before panel establishment, panel practice appears to heavily lean against
making any findings840; in respect of measures withdrawn after panel establishment, panel practice
appears to heavily lean towards panels making findings on such measures, but not making any
recommendation pursuant to Article 19.1 of the DSU.841 The Appellate Body has recently confirmed
the significance of this distinction. In EU – PET (Pakistan), the panel drew this distinction. On appeal,
the Appellate Body agreed, and stated that the respondent in that case appeared "to overlook this
temporal distinction " in the course of suggesting that the case -law showed "a mixed picture "
regarding whether panels and/or the Appellate Body have made findings in cases where the measure
at issue expired or was terminated before or during the WTO proceedings.842 The Appellate Body
found that the Panel did not err in "giving importance to the fact th at, in the present dispute, the
measure expired after the DSB had established the Panel" and, in that situation, proceeding to make
findings on the measure notwithstanding that it had expired.843
7.470. The Panel notes that, consistent with this practice, both the Philippines and Thailand have
focused their respective arguments on the timing of withdrawal of the NoAs. The Philippines explains
that, with respect to the 1,052 revised NoAs, the Panel "is to make factual findings on whether some
or all of the NoAs were revoked before establishment, as Thailand alleges, or instead existed at the
time of panel 's establishment" and indicates that "in previous disputes, panels have consistently
made findings regarding measures that existed at establishment, even when they w ere revoked
after establishment".844 Similarly, Thailand has consistently argued that the Panel should decline to
rule on the NoAs on the ground that they were terminated prior to the establishment of the Panel.
Likewise, some of the third parties that expressed a view on this issue also appeared to acknowledge
the relevance, depending on the circumstances of each case, of this distinction.845
7.471. While the timing of withdrawal is an important consideration, it is not necessarily dispositive
of whether a panel should exercise its discretion to make findings and/or recommendations. When
deciding whether or not the aim of securing a positive solution warrants findings on a withdrawn
measure, panels have also taken into account the likelihood that the respondent would reintroduce
the same measure 846 or adopt another measure that may give rise to certain of the same, or
"materially similar ", WTO inconsistencies. 847 For instance, in Argentina – Textiles and Apparel ,
Argentina objected to the panel's examination of the specific duties at issue, while the United States
argued that there was a risk that Argentina would reintroduce the measure. The panel explained

840 See e.g. Panel Reports, US – Gasoline, para. 6.19; China – Electronic Payment Services, paras.
7.224-7.229; EC – Approval and Marketing of Biotech Product, paras. 7.1651-7.1654; Argentina – Textiles and
Apparel, paras. 6.12-6.15; EU – Poultry Meat (China), para. 7.168.
841 Panel Reports, EU – PET (Pakistan), para. 7.13; US – Poultry (China), para. 7.56; Indonesia – Autos,
para. 14.9; US — Stainless Steel (Mexico), paras. 7.46-7.50; EC – Approval and Marketing of Biotech Product,
paras. 7.1655 – 7.1667. See also Appellate Body Report, EC – Bananas III (Article 21.5 – Ecuador II / US),
para. 273.
842 Appellate Body Report, EU – PET (Pakistan), para. 5.38.
843 Appellate Body Report, EU – PET (Pakistan), para. 5.39.
844 Philippines' response to Panel question No. 162.
845 In the European Union's view, the fact that the expiry or repeal took place after panel establishment,
while not a "knock-out" criterion that would mandate making findings on the expired measure on its own, may
play a role in a panel's exercise of its discretion depending on the circumstances of each case and alongside
other factors. (European Union's third-party submission, para. 13) The United States appears to frame the
issue as one concerning a panel's terms of reference and states that the measures on which the panel makes
findings must be measures that are in existence at the time of the establishment of the panel. (United States'
response to Panel question No.17 to third parties.)
846 Panel Reports, Argentina – Textiles and Apparel, para. 6.14; US – Gasoline, para. 6.19; and China —
Electronic Payment Services, para. 7.224.
847 Appellate Body Report, EU – PET (Pakistan), para. 5.40.

that since there was no "clear evidence" that Argentina would re -introduce the specific duties at
issue, it would not address the relevant claims. It also noted that it could not be assumed that
Argentina was trying to evade the panel 's consideration of the measure by withdrawing it and that
it had to "assume that WTO Members will perform their treaty obligations in good faith, as they are
required to do by the WTO Agreement and by international law ".848 Likewise, in EEC – Apples
(Chile I), the panel ruled on a measure which due to its seasonal nature had been terminated prior
to the establishment of the panel's terms of reference849, apparently because of the risk that it could
be reintroduced.850
7.472. The Panel further notes that, consistent with this past case law, both the Philippines and
Thailand have also focused their respective arguments on the risk of reintroduction of the same or
materially similar measures. Throughout its submissions, the Philippines has consistently expressed
its concern over the risk of reintroduction of the NoAs or "the possibility that [Thailand] may adopt
a new and distinct measure that entails a similar WTO -inconsistent determination" and has sought
assurances from Thailand that it will not act in such a manner. 851 For its part, Thailand maintains
that there is no risk of the NoAs being reintroduced and in any event the Philippines has not provided
"clear evidence" pointing to such risk, and that there is no reason to presume that any measure that
Thailand might adopt to implement the Supreme Court ruling of May 2018 will rely on the pricing
and cost information found in the CK -21A forms.852 As for the third parties, they appear to hold
diverging views on the relevance of the risk of reintroduction in deciding whether to make findings
on a terminated measure.853
7.473. In some other cases, panels appear to have accorded less weight to either of the foregoing
considerations, and have focused more on whether making additional findings on the terminated
measure would have any practical value for implementation in the light of its other findings on
materially similar measures. For example, in the trade remedies and safeguards contexts, several
panels have declined to make findings on distinct claims relating to provisional measures and
preliminary determinations when they considered that similarities between the two sets of measures
meant that thei r findings on the final duties and determinations would a fortiori address any
corresponding issues with the earlier measures.854 In Dominican Republic – Safeguard Measures, for
instance, the panel observed that "insofar as the complainants [were to] succeed in making the case
that the impugned measures are inconsistent with any of the provisions of the covered agreements,
that finding would affect both the impugned definitive measure and the provisional measure ".855
Likewise, in cases involving laws or regulat ions amended in the course of the proceeding, panels
have sometimes concluded that there would be no practical value in making findings on the earlier
measure. In Russia – Tariff Treatment, for example, the panel concluded that its findings on the
measure as amended were "sufficient to address the issues raised " by the complainant's claims in
respect of the precursor measure as it existed at the time of the panel 's establishment. 856 In
Colombia – Textiles, the panel made findings on replacement measures that were of the "same
essence" as the repealed measures, and was of the view that making findings on the repealed
measures therefore "would amount to a purely academic exercise".857
7.474. This consideration, i.e. whether making additional findings on the terminated measure would
have any practical value for implementation in the light of its other findings on materially similar

848 Panel Report, Argentina – Textiles and Apparel, para. 6.14 (referring to Article 3.10 of the DSU and
Article 26 of the Vienna Convention on the Law of Treaties).
849 GATT Panel Report, EEC – Apples (Chile I), para. 2.4.
850 See Panel Report, US – Gasoline, para. 6.19 (referring to GATT Panel Report, EEC – Apples (Chile I)).
851 Philippines' second written submission, paras. 35 and 42; opening statement at the meeting of the
Panel, paras. 25-28.
852 Thailand's response to Panel question No. 161, paras. 2.5-2.8.
853 The European Union remarked that the "most compelling reason for making findings despite expiry
or repeal of the measure is the (real) risk of reintroduction of the measure, which is a matter for the
complainant to substantiate" (European Union's third-party submission, para. 14). In contrast, in the United
States' view, considering whether the Notices are likely to be reintroduced is not a useful approach, given that
any measure would seem to be capable of being reintroduced, at least within the system of the Member at
issue. (United States' third-party statement, para. 9)
854 See e.g. Panel Reports, China – GOES, para. 7.423; China – Broiler Products, para. 7.326; Panel
Report, Dominican Republic — Safeguard Measures, paras. 7.19-7.21.
855 Panel Report, Dominican Republic — Safeguard Measures, para. 7.22.
856 Panel Report, Russia – Tariff Treatment, para. 7.169.
857 Panel Report, Colombia – Textiles (Article 21.5 – Colombia / Panama), paras. 7.112 and 7.114.

measures, accords with the logic underlying the practice of judicial economy. 858 It also comports
with the Appellate Body 's view that among the powers that are inherent in a panel 's adjudicative
function is "the authority of a panel to assess objectively whether the 'matter' before it, within the
meaning of Article 7.1 and Article 11 of the DSU, has been fully resolved or still require s to be
examined".859 Hence, where the "matter" before a panel can be fully resolved or examined on the
basis of an examination of only those measures that are still in force, such examination obviates the
need for that panel to address the expired measure, and any findings on the latter would not be
necessary to secure a positive solution to the dispute.
7.475. The Panel also finds some reflection of this consideration in the arguments of the parties and
third parties. For instance, Thailand states that "to the extent that the legal and factual arguments
put forward by the Philippines regarding the NoAs mirror very closely " those regarding the 2002 -
2003 Charges, a decision by the Panel not to make findings on the NoAs "would not materially limit
the Philippine's case".860 While the Philippines stresses that the Panel's findings on the Charges could
not justify a decision to exercise judicial economy in respect of its parallel claims regarding the
NoAs861, it "agrees that, as a matter of substance, the Panel's reasoning regarding customs valuation
determinations in the 02 -03 Charges would apply equally to the 1,052 NoAs, even if the Panel
declines to rule on the NoAs".862
7.476. In the light of the foregoing, the Panel will first review the information presented by the
parties regarding the termination of the 1,052 revised NoAs. The Panel will then assess the likelihood
of reintroduction by Thailand of the same NoAs or the adoption of another measure with the same
or similar WTO inconsistencies. Finally, the Panel will consider wh ether findings on the NoAs would
have any practical value for implementation in the light of other findings on the 2002-2003 Charges.
7.4.3.2 The termination of the measures
7.477. The Panel begins by recalling the following chronology of events which form the factual
background pertaining to the termination of the 1,052 revised NoAs:
a. PMTL received the 1,052 revised NoAs in November 2017 from Thailand 's Customs
Department.
b. On 14 December 2017, PMTL sent a letter to the Customs Department requesting an
explanation of the customs valuation determinations in the 1,052 revised NoAs.863 On 26
and 28 December 2017, PMTL filed appeals against the NoAs to the BoA and the Excise
Department on the grounds that: ( 1) the declared transaction values were the prices
actually paid; (2) the revised NoAs were not issued within the period required by Thai law,
i.e., three years from the date of the entry, as required under Section 19 of the Customs
Act; and (3) the claims for payment were now time-barred under Thai law, under Section
21 of the Customs Act.864

858 As defined by the Appellate Body, judicial economy in WTO dispute settlement refers to "a panel
refrain[ing] from making multiple findings that the same measure is inconsistent with various provisions when
a single, or a certain number of findings of inconsistency, would suffice to resolve the dispute". (Appellate Body
Report, Canada – Wheat Exports and Grain Imports, para 133.)
859 Appellate Body Report, EU – PET (Pakistan), paras. 5.40 and 5.51.
860 Thailand's first written submission, para. 2.33.
861 Philippines' response to Panel question No. 162. The European Union likewise emphasizes that,
pursuant to the concept of judicial economy, where a panel has found a measure inconsistent with one
obligation, that panel may decline to rule on whether that measure is inconsistent with a second obligation that
is the same or has a similar content as the first obligation because any such finding would not add anything of
value to the recommendation or ruling to be given in that particular case. The European Union stresses
however that applying that concept of judicial economy to a situation in which there is one obligation and two
similar measures (as opposed to one measure and two similar obligations as described above) would appear to
be a significant extension of the present understanding of the concept of judicial economy. (European Union's
response to Panel question No. 18 to third parties, paras 3-5)
862 Philippines' response to Panel question No. 128, para. 10.
863 Philippines' first written submission, para. 81 (referring to a Letter from PMTL to the Director General
of the Customs Department, 14 December 2017 (English translation), (Exhibit PHL-247-B).)
864 Philippines' first written submission, para. 81 (noting that PMTL appealed the Notices on an entry-by-
entry basis, and referring to a Sample PMTL appeal against the NoAs to the BoA, 26 December 2017 (English

c. On 21 February 2018, the Philippines filed a revised version of its request for consultations,
which superseded an earlier request for consultations dated 6 July 2017. The revised
request for consultations included claims relating to the NoAs. Consultations were held on
12 March 2018 during which, according to Thailand, "Thailand informed the Philippines
that some or all of the NoAs would be withdrawn ".865 On 14 March 2018, the Philippines
filed a request for the establishment of a panel.
d. On 21 and 23 March 2018, the Thai Customs Department sent two letters to PMTL
explaining, respectively, that the NoAs pertaining to 796 entries had been "revoked" on
the grounds that the "[NoAs] had … [already] been assessed by a ruling of the Board of
Appeals" which is a "final judgment " (21 March letter) 866, and that, as concerns the
remaining 256 NoAs, the Customs Department had "decided to terminate the [c]ivil
[a]ction for collect[ing] the additional duties [and] taxes from [PMTL]" (23 March letter).867
e. On 26 March 2018, the day before the DSB meeting at which this Panel was established,
bilateral discussions that took place at the WTO between the Permanent Mission of
Thailand and officials from the Government of the Philippines, during which, according to
Thailand, it "informed the Philippines' officials that the NoAs had been withdrawn and that
PMTL had been informed of this development".868
f. On 4 May 2018, PMTL wrote to the Director -General of the Customs Department inviting
him to confirm, by countersigning PMTL's letter, "the cancellation of all 1,052 NoAs".869
g. On 7 May 2018, the Supreme Court found that the BoA had improperly valued 208 entries
of the group of 796 NoAs, and overturned the November 2012 BoA Ruling.870
h. On 28 May 2018, the Principal Advisor to the Director -General of the Thai Customs
Department wrote to PMTL reiterating that the Customs had (1) "cancelled" 796 NoAs on
21 March 2018 because they have already been ruled upon by the BoA, and ( 2) ordered,
on 22 March 2018 "the cessation of the proceedings to collect taxes and duties" in respect
of 256 NoAs because they are time-barred.871
i. On 13 June 2018, the Permanent Mission of Thailand to the WTO wrote to the Permanent
Mission of the Philippines to the WTO, attaching a statement from the Director-General of
the Thai Customs Department, dated 18 May 2018, which stated that ( 1) the 796 NoAs
were "revoked" and "ceased to have any legal standing or effect " on 21 March 2018
because they had already been the subject of a ruling of the Board of Appeals w hich is
final according to Section 47 of the Customs Act B.E. 2560 (2017), and that ( 2) the 256
NoAs were terminated, and ceased to have any legal standing or effect, on the grounds
that "the limitation period of 10 years for civil action regarding these e ntries had
passed".872
j. On 21 August 2018, Thailand sent a copy of the statemen t by the Director -General of
18 May 2018 to PMTL.873

translation), (Exhibit PHL-248-B); Sample PMTL appeal against the NoAs to the Excise Department, 28
December 2017 (English translation), (Exhibit PHL-249-B).)
865 Thailand's first written submission, para. 2.4.
866 Letter from the Thai Customs Department to PMTL, 21 March 2018, (Exhibit THA-57), p.3.
867 Letter from the Thai Customs Department to PMTL, 23 March 2018, (Exhibit THA-58), p.3.
868 Thailand's first written submission, para. 2.6.
869 Letter from PMTL to the Customs Department, 4 May 2018 (English Translation), (Exhibit PHL-292-
B).
870 Supreme Court decision on Nov 2012 BoA Ruling of 7 May 2018, 28 December 2017 (English
translation), (Exhibit PHL-244-B).
871 Letter from the Customs Department to PMTL, 28 May 2018 (English Translation), (Exhibit PHL-293-
B).
872 Statement by the Director-General of the Thai Customs Department, (Exhibit THA-59), p.4.
873 Letter from the Director-General of the Customs Department to PMTL, 21 August 2018 (English
Translation), (Exhibit THA-67-B).

k. On 30 August 2018, the BoA issued a ruling in the importer 's appeal regarding all 1,052
revised NoAs in which it indicated that i t was "striking out" the appeals pertaining to the
group of 796 NoAs because the Customs Department had already "sent a letter to the
[importer] cancelling the notices of assessment "; and revoking the 256 NoAs on the
grounds that they were time-barred.874
7.478. As indicated above, Thailand, in formulating its request for the Panel not to rule on the 1,052
revised NoAs, has divided them into two groups: one of 796 NoAs, and the other of 256 NoAs.
Likewise, the Philippines in responding to Thailand's request has followed the same order. The Panel
will likewise take this grouping into account.
7.479. With respect to the 796 NoAs, the Panel notes that the Philippines, despite some initial
uncertainty875, "appreciates that Thailand has taken a consistent line in its communications to the
importer and the Philippines"876 and the Philippines accepts that the 796 NoAs were withdrawn as of
21 March 2018.877 Thus, there is no dispute that more than three quarters of the 1,052 revised NoAs
were withdrawn prior to the establishment of the panel. As noted earlier, panel practice heavily leans
against making any findings in such circumstances.
7.480. With respect to the group of 256 NoAs, the Philippines agrees with Thailand that they too
have been terminated. While the Philippines had initially pointed to some "uncertainties"878 which
led it to question whether the 256 NoAs had truly and definitively been terminated by Thailand, the
Philippines subsequently indicated that, in light of the BoA Ruling of 30 August 2018 "[it] now accepts
that the 256 NoAs have been definitively revoked".879 However, the Philippines contends that these
NoAs were revoked only on 30 August 2018, the date of issuance of the BoA Ruling on the importer's
appeal, "which is several months after the Panel 's establishment" and that "[a]s a result the Panel
should reject Thailand 's request for the Panel to decline to rule on the 256 NoAs ".880 Thailand
maintains that the 256 NoAs were terminated as of 22 March 2018 which is before the establishment
of the Panel and that on this ground the Panel should decline to rule on them.
7.481. Having reviewed the evidence provided by the parties, the Panel considers that it is unclear
exactly when the 256 revised NoAs were terminated. On the one hand, and as elaborated below,
certain communications provided by the Thai authorities to PMTL, the Philippines and/or the Panel
suggest that the 256 NoAs were terminated as of 22 March 2018. 881 On the other hand, the BoA
Ruling of 30 August 2018 can be read as suggesting that the 256 NoAs were not legally terminated
prior to that time.
7.482. In a letter dated 21 March 2018, Thai Customs informed PMTL that 796 of the revised NoAs
were thereby "revoked". In a separate communication to PMTL dated 23 March 2018, Thai Customs
addressed the remaining 256 entries, which it indicated it had decided to "terminate the Civil Action"
for collection of the duties and taxes at issue. This letter, like the one concerning the 796 NoAs,

874 BOA Ruling, 30 August 2018 (English Translation), (Exhibit PHL-296-B), paras. 2.1-2.2.
875 The Philippines expressed concern that the Thai Customs Department, in its 21 March Letter, failed
to identify the specific provisions in Thai Law in support of the decision to cancel the 796 NoAs and that it was
also not clear whether that letter was signed by an official with authority to bind the Customs Department.
877 Philippines' opening statement at the meeting of the Panel, para.18.
878 As points of uncertainty, the Philippines highlights (i)the fact that the 23 March Letter from the
Customs Department does not identify the specific provisions of Thai Law in support of the decision not to
proceed with the civil lawsuit for collecting duties and taxes in respect of the 256 NoAs; (ii) the lack of clarity
as to whether the decision not to proceed with the civil lawsuit to collect duties in respect of the 256 NoAs -
and the customs valuation determinations they entail - means that these NoAs would continue to exist, but
would not be enforced; and (iii) the fact that the letter of 13 June 2018 from the Thai Mission to the
Philippine's mission - which contains a confirmation by the Director-General that the 256 NoAs have indeed
been terminated - expressly states that it cannot be used in any domestic legal proceedings before Thai courts
or governmental agencies. (Philippines' second written submission, paras. 19, 22, 23, and 41.)
879 Philippines' opening statement at the meeting of the Panel, para. 13.
880 Philippines' opening statement at the meeting of the Panel, paras. 13-14.
881 As the Panel understands it, based on the relevant evidence submitted by the parties, 22 March 2018
is the date the cessation of collection of duties and taxes in respect of the 256 NoAs was ordered and became
effective and 23 March 2018 is the date appearing on the letter informing PMTL of this cessation.

referenced the legal bases upon which PMTL had relied in its pending appeal of the NoAs. It reads
in relevant part:
The ground for appeal is that the Notices of Assessment had mostly been assessed by a ruling
of the Board of Appeals and the Notices of Assessment were time-barred. Subsequently, Risk
Management Division, Post -Clearance Audit Bureau has already revoked the Notices of
Assessment which had been assessed by a ruling of the Board of Appeals covering 796 entries.
…
Post-Clearance Audit Bureau has considered the fac ts, the related laws and legislations and
decided to terminate the Civil Action for collect the additional duties, taxes from Philip Morris
(Thailand) Limited for the Notices of Assessment 256 entries. Enclosed herewith please find
detailed information in the attachment.882
7.483. Thus, without specifying the legal provision(s) being applied, this letter made clear that Thai
Customs had decided to terminate the civil action, and that it was taking this step in response to
the legal grounds invoked by PMTL in its appeal of the NoAs. Whereas the letter of 21 March indicated
in unqualified terms that the NoAs are "revoked", the second informed PMTL of the decision to
terminate the civil action to collect duties.
7.484. The Thai authorities subsequently clarified, through a l etter of 13 June 2018 883 and their
submissions in this proceeding884, that it was on the basis of both Section 47 and Section 21 of the
Thai Customs Act that the Customs Department decided to terminate the 796 NoAs and, and on the
basis of Section 21 of the sa me Act that it decided not to collect duties and taxes in respect of the
remaining 256 NoAs. Prior to that, on 28 May 2018, the Principal Advisor to the Director-General of
the Thai Customs Department wrote to PMTL clarifying that the Customs had ( 1) "cancelled"
796 NoAs on 21 March 2018 because they had already been ruled upon by the BoA, and (2) ordered,
on 22 March 2018 "the cessation of the proceedings to collect taxes and duties " in respect of 256
NoAs because they are "time-barred".885
7.485. Moreover, Thailand has in several instances, including through its submissions in this
proceeding, confirmed that the decision not to collect duties and taxes with respect to the 256 NoAs
has in effect resulted in the NoAs being terminated.886 The Panel appreciates that a party's assertions
regarding the status of a measure in its domestic legal system are not dispositive of factual issues
that arise before a panel, but considers it appropriate to accord some weight to Thailand's repeated,
unqualified, and clear representations to this Panel as to the termination of the 1,052 revised NoAs.
In this regard, the Panel recalls its statement, in the first recourse to Article 21.5 in the context of
determining the content of the practice followed in the administration of Thailand's VAT regime, that:
Additionally, insofar as the Philippines' arguments relating to the content of the practice
rely mostly on the reported statements of Thai officials, we cannot igno re, and must
accord at least some weight to, the clear statements made by Thailand to the Panel in
the course of this proceeding on the exact same issue , to the effect that the RRSP is
accepted only to the extent that it reflects the average actual market price and that the
Revenue Department reserves the right to verify whether the notified RRSP corresponds
to the average actual market price.887
7.486. Finally, while Thailand has not acceded to PMTL 's request of 4 May 2018 that the Director-
General countersign PMTL's letter as confirmation that the 256 NoAs had been terminated as of that
time, Thailand has, through its subsequent letters of 13 June 2018 and 21 August 2018 addressed

882 Letter from the Thai Customs Department to PMTL, 23 March 2018, (Exhibit THA-58), p.3.
883 Statement by the Director-General of the Thai Customs Department, (Exhibit THA-59), p.4.
884 Thailand's first written submission, paras. 2.12-2.14; and second written submission, paras. 2.9,
2.22, and 2.23.
885 Letter from the Customs Department to PMTL, 28 May 2018 (English Translation), (Exhibit PHL-293-
B).
886 Thailand's second written submission, paras. 2.12 and 2.24.
887 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), para. 7.883. (emphasis
added)

respectively to the Philippines and to PMTL, explicitly made clear that the 256 NoAs had also been
terminated. The statement provided by the Director-General reiterates and confirms that:
A. First, 796 notices of assessment were revoked on 21 March 2018, because the entries
at issue had already been subject to assessment following a previous ruling of the Board
of Appeals. Because the Board of Appeals had already issued a ruling, these notices
should not have been issued according to Section 47 of the Customs Act B.E. 2560
(2017) which states "A ruling of the Appeal Committee shall be final , made in writing
and submitted to an appellant. " The revocation of these notices means that they no
longer have any legal standing or effect as of the date of revocation.
B. Second, the notices of assessment for the remaining 256 entries were terminated on
22 March 2018. They were issued on the basis of the import declarations issue more
than 10 years prior to the issuance of the notices. Thus, the limitation period of 10 years
for civil action regarding these entries had passed. As of the date of terminat ion, the
256 notices of assessment ceased to have any legal standing or effect to collect
additional duty under the Thai law.
C. Philip Morris (Thailand) Limited received the information about the revocation /
termination of the 1,052 notices of assessment on 24 March 2018.888
7.487. The Panel considers that the exact wording of the letters transmitted to PMTL may not have
been as perfectly clear as one might have hoped for, bearing in mind that they concern measures
demanding approximately USD 800 million from PMT L. Having said that, these communications ,
which were provided by the Thai authorities to PMTL, to the Philippines, and to the Panel, suggest
that the 256 NoAs were withdrawn no later than 22 March 2018.
7.488. On the other hand, the BoA Ruling of 30 August 2018 can be read as suggesting that the
256 NoAs were not legally revoked prior to that time. At the substantive meeting with the Panel at
the end of September 2018, the Philippines highlighted that the BoA, in its Ruling, indicated that it
was "striking out the appeals" for the 796 NoAs because the Customs Department had already sent
a letter to the importer cancelling these NoAs; whereas for the 256 NoAs, the BoA stated it was
"revoking the assessments" without mentioning any prior communication to the import er by which
these NoAs had already been cancelled. According to the Philippines, the BoA 's different treatment
of the two sets of NoAs is highly revealing: while the Customs Department had consistently indicated
in its letters that the 796 NoAs had been ca ncelled, terminated, or revoked, it had, until the BoA
Ruling, never used similar language with respect to the 256 NoAs except in the statement of 13 June
2018; rather, the Customs Department consistently expressed its commitment not to enforce
payment of the 256 NoAs. In the Philippines ' view, it is the BoA Ruling of 30 August 2018 that
revoked the 256 NoAs.889
7.489. The Panel considers that the contrasting formulations used by the Customs Department and
the BoA with respect to the 256 NoAs as compared with the 796 NoAs casts a reasonable doubt on
the exact date of revocation of these NoAs, and do not allow us to determine whether the 256 NoAs
were withdrawn on 22 March 2018, i.e. prior this Panel's establishment, or only on 30 August 2018,
i.e. after the establishment of this Panel. In any event, however, it is clear that the 256 NoAs were
terminated no later than 30 August 2018.
7.490. In sum, the Panel concludes that the Thai Customs Department terminated at least 796 of
the 1,052 revised NoAs prior to the Panel 's establishment, and that Thai Customs may have also
withdrawn the remaining 256 revised NoAs prior to the Panel 's establishment and in any event
terminated them no later than 30 August 2018.

888 Statement by the Director-General of the Thai Customs Department, (Exhibit THA-59), p.4.
889 Philippines' opening statement at the meeting of the Panel, paras. 9-13.

7.4.3.3 Reintroduction of the same or materially similar measures
7.491. The Panel recalls that due regard should be given to the likelihood of reintroduction of the
same measure or adoption of another measure that may give rise to certain of the same, or
materially similar, WTO inconsistencies by the respondent.
7.492. At the outset, the Panel shares Thailand's view that weight must be given to the presumption
afforded to a Member that it will perform their WTO obligations in good faith. As the Appellate Body
has explained, a panel cannot assume that "one party is seeking to evade its obligations and will
exercise its rights so as to cause injury to the other party".890 In this case, that means that the Panel
cannot presume that Thailand would withdraw, with a view to subsequently reintroducing, the
revised NoAs so as to avoid scrutiny of the WTO-consistency of these measures.
7.493. The Panel considers that the stated legal bases for terminating the 1,052 revised NoAs would
legally preclude the Thai authorities from reintroducing the same or materially similar NoAs.
According to the Thai authorities, the 1,052 revised NoAs have been terminated as follows: first, the
796 NoAs were withdrawn on the grounds that they have already been the subject of final rulings
by the BoA pursuant to Section 47 of the Customs Act and that they are also time -barred pursuant
to Section 21 of the Customs Act; and subsequently, the remaining 256 NoAs were withdrawn on
the grounds that they are also time-barred pursuant to Section 21 of the Thai Customs Act.891 These
are the same grounds that PMTL invoked when it filed appeals against the NoAs to the BoA and the
Excise Department, i.e. it appealed on the grounds that they were not issued within the period
required by Thai law, i.e., three years from the date of the entry, as required under Section 19 of
the Customs Act, an d that the claims for payment were now time -barred under Thai law, under
Section 21 of the Customs Act. Accordingly, any NoAs reissued in relation to the same entries as
those covered by the 1,052 revised NoAs would a priori be in violation of these provis ions of the
Thai Customs Act.
7.494. The Panel notes that the Philippines remains concerned with regards to the subset of 208
entries - covered by the 796 NoAs - which the Supreme Court, in its ruling of 7 May 2018, found
had been improperly valued by the BoA. Gi ven that Thailand must take action to implement the
Supreme Court's decision, the Philippines explains that it seeks to ensure that Thailand, in doing so,
will not reintroduce the same customs valuation determinations made in the corresponding 208 NoAs
or adopt a new measure that may give rise to certain of the same, or materially similar, WTO
inconsistencies that are alleged in this dispute. 892 The Philippines thus invites Thailand to "make
explicit that … it will comply with both the Panel's findings on the 208 entries and the Supreme Court
ruling".893 In response, Thailand indicates that it intends to comply with the Supreme Court ruling
but clarifies that any action that the Customs Department might take to implement the Supreme
Court ruling must be considered as a new and distinct measure from the NoAs. Thailand adds that
it is entitled to a presumption that it will perform its WTO obligations in good faith.894
7.495. While the Panel appreciates the Philippines' desire to avoid any possibility of new measures
with the same, or materially similar, WTO inconsistencies being adopted, the Panel is unable to see
any basis that would suggest that Thailand may act in such a manner in implementing the Supreme
Court ruling of 7 May 2018. To recall, the Supreme Court ruling r eviews the November 2012 BoA
Ruling in which the BoA rejected PMTL 's declared transaction values for 210 entries of Marlboro
cigarettes (which include the 208 entries covered by the NoAs in the present proceeding) and
determined the revised customs value b y using the "deductive value" method provided in Article 5
of the CVA.895 The Supreme Court ruling upheld the BoA 's rejection of the transaction values, but
found that the BoA, by deducting an incorrect amount for profits and general expenses (P&GE), had
improperly determined the alternative deductive customs values. It is evident that the methodology
and the main issue under scrutiny in the Supreme Court ruling, i.e. the deductive value method and
the proper P&GE rate, are different from those at issue in the NoAs, i.e. the computed value method
and the pricing and cost information reported by PM Indonesia to the Indonesian tax authorities in

890 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), para. 326.
891 Thailand's first written submission, para. 2.14.
892 Philippines' opening statement at the meeting of the Panel, paras. 22-27.
893 Philippines' opening statement at the meeting of the Panel, para. 28.
894 Thailand's response to Panel question No.161. paras. 2.5-2.6.
895 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.64-7.65.

the CK-21A forms. Given these differences, the Panel is inclined to agree with Thailand that, logically,
"the basis for any implementing measure regarding the 208 entries will clearly be different from the
basis for issuing the NoAs at issue in this dispute"896 as such measure would be addressing a different
set of issues regarding the application of the deductive value methodology under Article 5.
7.496. Moreover, the Panel notes that by virtue of the obligation to respect the sequential ordering
of alternative valuation methods in Articles 2 to 7 of the CVA, a Member is allowed to resort to the
computed value method under Article 6 (or permissible variation thereof under Article 7) only after
it has been determined that the deductive value method under Article 5 (or, as appropriate, Article 6)
cannot be used. Therefore, Thailand would first need to apply the deductive method, before turning
to the computed value method only if the former cannot be used. While this does not definitively
eliminate the risk that Thailand, in implemen ting the Supreme Court ruling, will use the computed
value method in the same manner as in the 1,052 revised NoAs, it further reduces the possibility of
it doing so in a CVA-inconsistent manner.
7.497. In sum, the Panel sees no positive evidence upon which it co uld conclude that any future
NoAs which the Thai Customs Department may issue, whether to implement the Supreme Court
Ruling which modifies the November 2012 BoA Ruling or otherwise, would use either the same
valuation methodology, or the same CK-21A information, as was used in the 1,052 withdrawn NoAs.
7.4.3.4 The practical value of additional findings in the event of reintroduction
7.498. The Panel now turns to the question of whether findings on the NoAs would have any
practical value for implementation in the light of the Panel 's other findings on the 2002 -2003
Charges. The Panel will separately consider the Philippines' substantive and procedural claims.
7.499. The Panel is well aware that the 2002 -2003 Charges and the 1,052 revised NoAs are two
formally distinct measures . However, as indicated above, the Charges and the NoAs rest on the
same basis, namely the DSI's calculation of the "actual" price/value of PMTL's imports of cigarettes
based on pricing and cost information reported by PM Indonesia to Indonesian tax authorities in the
CK-21A forms. More importantly, this common basis forms the impugned conduct in both the NoAs
and the Charges and has led to almost identical claims by the Philippines in respect of both measures.
Additionally, the Panel also recalls the overlap in the entries covered by the two measures: the NoAs
cover 1,052 entries of cigarettes imported over the period 2001 -2003, including 779 of the 780
entries covered by the 2002 -2003 Charges. In these circumstances, despite being two formally
distinct mea sures, the Panel considers that its finding s on the Charges necessarily address the
Philippines' substantive claims concerning the other measure from the perspective of providing
guidance on implementation. In these circumstances, making separate and addit ional findings on
the CVA-consistency of the withdrawn NoAs would provide no guidance for implementation beyond
the findings that the Panel has already made on the Philippines ' identical substantive claims in
relation to the 2002-2003 Charges.
7.500. The Panel further notes that while the 2002 -2003 Charges and the 1,052 revised NoAs are
formally distinct measures, any new NoAs reintroduced by the Customs Department would also be
formally distinct measures from the 1,052 withdrawn NoAs that would be the subject of any findings.
Thus, while any findings that the Panel were to make on the 1,052 revised NoAs would effectively
address the WTO-consistency of any newly introduced NoAs that are the same or materially similar
as the withdrawn 1,052 NoAs, such findings would not do so to any greater extent than the Panel's
findings on the 2002 -2003 Charges already do. Whereas the Panel 's findings on the 2002 -2003
Charges do not formally apply to either the 1,052 revised NoAs, or to any future NoAs reintroduced
by the Thai Customs Department, as a matter of substance the Panel's reasoning on the 2002-2003
Charges would be applicable to any reintroduced NoAs as would any findings that the Panel made in
respect of the 1,052 revised NoAs if it were to decide to rule on the latter . For purposes of
implementation and/or the assessment of the WTO-consistency of any future NoAs reintroduced by
the Customs Department , making findings on the 1,052 revised NoAs would have no additional
practical value beyond the findings already made on the Philippines' identical substantive claims in
respect of the 2002-2003 Charges.
7.501. The Panel recalls that the 2002-2003 Charges and the 1,052 revised NoAs were issued by
different Thai agencies, but stresses the irrelevance of this fact to the question s of whether the

896 Thailand's response to Panel question No.161, para. 2.5.

Panel's findings on the 2002 -2003 Charges and the underlying reasoning may adequately a lso
address the 1,052 revised NoAs , or whether additional and separate findings on the 1,052 revised
NoAs would have practical value for implementation in general and for providing guidance on the
WTO-consistency of any reintroduced NoAs in particular. The relevance and value of the Panel 's
findings on the 2002-2003 for the 1,052 revised NoAs or any new NoAs that are materially similar
are not attenuated by virtue of the fact that they were made in respect of a measure taken by a
different agency, i.e. the Public Prosecutor. As the Panel has already elaborated in some detail, the
substantive obligations in Articles 1.1, 1.2(a), second sentence, and the relevant custom valuation
rules in Articles 2 to 7 apply to any organ of the state that makes a "customs va luation"
determination. The CVA's preambular objectives promote "uniformity" in the implementation of WTO
customs valuation rules, and "valuation procedures of general application".897
7.502. Thus, the identity and nature of a particular Thai agency involved in ma king a customs
valuation determination on the basis of pricing and cost information contained in the CK-21A forms
is generally irrelevant to the assessment of the CVA -consistency of such a determination. Thus, it
would be redundant for the Panel to make separate and additional findings on the revised NoAs for
the mere reason that its equally relevant findings on the Charges were made in respect of measures
taken by a different agency . The Panel makes this clarification because it is wary of the possibility
that, if it were to make separate and additional findings on the NoAs issued by the Customs
Department that are superfluous in the light of its findings on the 2002-2003 Charges, this could be
taken to imply that the identity and nature of the agency making a customs valuation determination
is somehow relevant to the assessment of the CVA-consistency of that determination. It is not.
7.503. Thus, the Panel considers that any additional findings on the 1,052 revised NoAs would
potentially have practical value only insofar as they addressed any claims that may be left
unaddressed by the Panel's findings on the 2002-2003 Charges. In this regard, the Panel recalls that
the Philippines has made a claim concerning Article 16 that it has not made in relation to the 2002-
2003 Charges. The Panel also notes that its finding that the communications between the DSI and
PMTL discharged any obligation under Article 1.2(a), third sentence, in relation to the 2002 -2003
Charges issued in January 2017, does not resolve the Phili ppines' claim under Article 1.2(a), third
sentence, in relation to the Thai Customs Department and the issuance of the 1,052 revised NoAs
in November 2017.
7.504. However, the Panel considers that there would be limited practical value in making additional
stand-alone findings on the procedural claims under Articles 16 and 1.2(a), third sentence, in relation
to the 1,052 revised NoAs. These claims concern procedural issues in respect of measures that have
already been withdrawn. The particular issues raised by th ese procedural claims essentially relate
to the adequacy of the information that the Thai Customs Department conveyed to PMTL regarding
the Customs Department's reliance on a source of information – pricing and cost information
reported by PM Indonesia in the CK-21A forms – which the Panel has found is ab initio inconsistent
with the applicable CVA provisions, and which cannot be used as the basis for any future customs
valuation determination of PMTL's cigarettes imported into Thailand. The legal standards in both of
these procedural obligations have already been clarified and applied in both the first recourse to
Article 21.5 as well as in the original proceeding. Taking all of these circumstances together, a
separate and additional assessment of whether or not the Thai Customs Department complied with
the procedural obligations in Articles 16 and 1.2(a), third sentence, appears to be a largely academic
issue.
7.4.4 Conclusion
7.505. For the reasons set forth above, the Panel concludes that the Thai Customs Department
terminated at least 796 of the 1,052 revised NoAs before DSB established the Panel; that the Thai
Customs Department may have also withdrawn the remaining 256 revised NoAs prior to the Panel's
establishment, and in any event terminated them no later than 30 August 2018; that there is no
reason to consider that any future NoAs which the Thai Customs Department may issue, whether to
implement the Supreme Court Ruling which modifies the November 2012 BoA Ruling or otherwise,
would use either the same valuation methodology, or the same CK-21A information, as was used in
the withdrawn NoAs; that even if Thai Customs did reintroduce some or all of the NoAs using that
same methodology and information, separate findings by the Panel concerning the WTO-consistency
of the withdrawn NoAs would provide no guidance beyond the findings that the Panel has already

897 See paragraph 7.261.

made on the Philippines' identical substantive claims in relation to the 2002-2003 Charges; and that,
in the light of those findings above in this Report, the issue s raised by the Philippines ' procedural
claims in relation to the revised NoAs are rendered largely academic.
7.506. Taken together, the foregoing considerations lead the Panel to decline to rule on the 1,052
revised NoAs that have now all been terminated.
8 CONCLUSIONS AND RECOMMENDATIONS
8.1. Regarding the Charges filed by the Public Prosecutor on 26 January 201 7 concerning 780
entries of Marlboro and L&M cigarettes imported by PMTL between January 2002 and July 2003, the
Panel finds that the Philippines ' claims are admissible and fall within the scope of this compliance
proceeding, and concludes that:
a. the 2002-2003 Charges are inconsistent with Article 1.1 and/or the substantive obligation
in Article 1.2(a), second sentence, of the CVA because the Public Prosecutor's rejection of
PMTL's declared transaction values based on pricing and cost information reported by PM
Indonesia in the CK -21A forms constitutes a fail ure to conduct a proper examination of
the circumstances surrounding the sale , and/or a proper determination of the price
actually paid or payable;
b. the 2002-2003 Charges are inconsistent with Article 6.1 and/or Article 7.1 of the CVA,
because the Public Prosecutor improperly relied on pricing and cost information reported
by PM Indonesia in the CK -21A form s to determine the revised customs value of the
imported goods;
c. the Public Prosecutor acted inconsistently with the obligation to sequentially apply the
customs valuation methods in Articles 2 through 7 of the CVA when it determined the
revised customs values of PMTL's imported goods; and
d. the Public Prosecutor did not violate the procedural obligation in Article 1.2(a), third
sentence, of the CVA because prior to the issuance of the 2002-2003 Charges the DSI had
already sufficiently communicated the grounds for considering that the relationship
between PMTL and PM Indonesia influenced the price, and PMTL responded.
8.2. The Panel declines to make findings on t he Philippines' additional claims regarding the 1,052
revised Notices of Assessment that PMTL received in November 2017 from Thailand 's Customs
Department, because most if not all of these NoAs were withdrawn prior to the establishment of the
Panel by the DSB; there is no reason to expect that the Thai authorities would reintroduce the same
or materially similar measures ; and any additional findings by the Panel on the NoAs would have
limited practical value for implementation beyond the Panel 's other findi ngs on the 2002 -2003
Charges.
8.3. Under Article 3.8 of the DSU, in cases where there is an infringement of the obligations
assumed under a covered agreement, the action is considered prima facie to constitute a case of
nullification or impairment. The Panel concludes that, to the extent that the measures at issue are
inconsistent with the Customs Valuation Agreement, they have nullified or impaired benefits accruing
to the Philippines under that agreement.
8.4. The Panel therefore concludes that Thailand has failed to implement the recommendations and
rulings of the DSB to bring its measures into conformity wit h its obligations under the Customs
Valuation Agreement. The recommendations and rulings of the DSB in the original pr oceeding in
DS371 remain operative, to the extent that Thailand has failed to comply with them.