THAILAND – CUSTOMS AND FISCAL MEASURES ON CIGARETTES FROM THE PHILIPPINES COMMUNICATION FROM THE PHILIPPINES
Document: COMMUNICATION FROM
Date: 3 August 2020
Document codes: WT/DS371/40; WT/DS371/32
Complainant: Philippines
Respondent: Thailand
Third parties: Australia, China, EU, India, Taiwan, U.S.
Dispute stage: Appellate Body
Agreements cited: Art. 13, 10  Customs valuationArt. X:3, II:1(b), II:3  GATT 1994Art. 2, 3, 4, 5, 6, 7, 1.1, 1.2  Customs valuationArt. VII:1, VII:2, VII:5  GATT 1994Art. 16  Customs valuationArt. X:1, III:2, III:4  GATT 1994

THAILAND – CUSTOMS AND FISCAL MEASURES ON CIGARETTES
FROM THE PHILIPPINES
COMMUNICATION FROM THE PHILIPPINES
The following communication, dated 30 July 2020 , was received from the delegation of
the Philippines with the request that it be circulated to the Dispute Settlement Body (DSB).

The Philippines sets forth below the content of its intervention at the DSB meeting held on
29 July 2020 regarding Item 12 of the agenda, Thailand – Customs and Fiscal Measures on
Cigarettes from the Philippines, particularly the Philippines ' Recourse to Article 22.2 of the DSU

1. Thank you, Mr. Chairman. At the outset, allow me to thank you for your time and effort in
holding, since our last DSB meeting, three virtual meetings as part of Chair -led efforts to
assist the Philippines and Thailand resolve these important and urgent concerns that have
systemic implications to the rights of Members, under the Dispute Settlement Understanding
(DSU).

2. At our 3rd meeting last 24th of July, and further to our 9 March letter, the Philippines presented
legal examples and a range of constructive options that could fill the void that has resulted
from the AB 's formal letter advice of 10 December 2019 of their cessation of operations. A
copy of [this letter is annexed for reference, along with] a non -exhaustive list of various
alternative arrangements that WTO Members have utilized in the past, both recent and not so
recent.

3. Thailand has not, as of yet, responded to the ideas contained in our letter of 09 March 2020,
and we understand from the 24 July meeting, that Thailand is still reviewing our 24 July and
9 March letters on potential ways forward.

4. While the Philippines has always been open to a constructive solution to the issue at hand,
the Philippines has been consistent in asserting that it is fully within its rights to seek Recourse
under Article 22.2 of the DSU.

5. Mr. Chairman, the provisions of Article 22.6 of the DSU are clear:

• "The DSB, upon request, shall grant authorization to suspend concessions or other
obligations . . . unless the DSB decides by consensus to reject the request"; and

• "If the Member concerned objects to the level of suspension proposed, […] the matter
shall be referred to arbitration".

6. Therefore, there are only two (2) options under the reverse -consensus rule of DSU
Article 22.6: (1) the DSB granting authorization to suspend concessions, or (2) the DSB
referring the matter to arbitration.

7. At this meeting of the DSB, the Philippines asks once again that the DSB grant the Philippines
the authority it seeks.

8. Thank you, Mr. Chairman.

NON-EXHAUSTIVE EXAMPLES:
ALTERNATIVE ARRANGEMENTS IN WTO DISPUTE SETTLEMENT

Tab
No. Date Description
1 10 December 2020 Appellate Body letter to Parties with pending appeals, in which
the Division has decided to suspend its work
2 03 August 2001
Article 25 Agreement
US – Section 110(5) Copyright Act
Document WT/DS160/15
3 16 October 2002
Request for Mediation
By Philippines, Thailand, & European Communities
Document WT/GC/66
4 27 March 2019
Non-Appeal Understanding
Indonesia – Safeguard on Certain Iron or Steel products
Document WT/DS496/14
5 25 July 2019
Article 25 Agreement
Between EU & Canada
(No official WTO number)
6 21 October 2019
Article 25 Agreement
Between EU & Norway
(No official WTO number)
7 04 December 2019
Decision to Withdraw Appeal
Morocco – Anti-Dumping Measures on Certain Hot -Rolled Steel
from Turkey
Document WT/DS513/7
8 10 February 2020
Non-Appeal Understanding
US – Antidumping Measures on Certain Oil Country Tubular
Goods from Korea
Document WT/DS488/16
9 03 June 2020
Advance Agreement on Recourse to Article 25
(Plurilateral)
Canada – Commercial Aircraft
Document WT/DS522/20
10 29 June 2020
Recourse to Article 22.6 of the DSU
United States – Countervailing Measures on Supercalendered
Paper from Canada
Document WT/DS505/14
11 15 July 2020
Advance Agreement on Recourse to Article 25
(Plurilateral)
Colombia – Anti-Dumping Duties on Frozen Fries from Belgium,
Germany, and the Netherlands
Document WT/DS591/3