THAILAND – CUSTOMS AND FISCAL MEASURES ON CIGARETTES FROM THE PHILIPPINES COMMUNICATION FROM THAILAND
Document: COMMUNICATION FROM
Date: 7 July 2020
Document codes: WT/DS371/39
Complainant: Philippines
Respondent: Thailand
Third parties: Australia, China, EU, India, Taiwan, U.S.
Dispute stage: Appellate Body
Agreements cited: Art. 13, 10  Customs valuationArt. X:3, II:1(b), II:3  GATT 1994Art. 2, 3, 4, 5, 6, 7, 1.1, 1.2  Customs valuationArt. VII:1, VII:2, VII:5  GATT 1994Art. 16  Customs valuationArt. X:1, III:2, III:4  GATT 1994

THAILAND – CUSTOMS AND FISCAL MEASURES ON CIGARETTES
FROM THE PHILIPPINES
COMMUNICATION FROM THAILAND
The following communication, dated 3 July 2020, was received from the delegation of Thailand with
the request that it be circulated to the Dispute Settlement Body (DSB).

Thailand requests that the document attached to this communication be circulated to Members of
the Dispute Settlement Body.

Thailand sets forth below the content of its statement at the DSB meeting of 29 June 2020 regarding
Item 11 of the agenda concerning the dispute Thailand – Customs and Fiscal Measures on Cigarettes
from the Philippines (DS371).

1. Mr. Chairman, I would like to thank you for your involvement in the consultations with the
parties in the dispute Thailand – Cigarettes, and for the opportunity to make a statement at today's
meeting.
2. Thailand refers to its previous statement at the DSB meeting on 5 March 2020.
3. For the purpose of today's meeting, Thailand wishes to reiterate, once again, that any request
for suspension of concessions under Article 22.2 of the DSU in this dispute would be improper as the
two compliance proceedings under Article 21.5 have not concluded. The two reports issued by the
panel in these 21.5 proceedings have not been adopted by the DSB and the appeals of these reports
by Thailand are still ongoing before the Appellate Body.
4. The sequencing agreement signed by the Parties in this dispute states that the Philippines
could request retaliation only after the completion of proceedings under Article 21.5, which includes
proceedings before the Appellate Body in case of an appeal. Given that Thailand's appeals have not
been completed, the Philippines cannot, at this stage, request the suspension of concessions or other
obligations under Article 22.2 of the DSU.
5. Thailand also wishes to reiterate that, should the Philippines, for whatever reason, take the
position that the rules contained in the sequencing agreement are no longer applicable, this would
release Thailand of its commitment to not object to the Philippines' request as being outside the 30-
day deadline under Article 22.6 of the DSU. According to this provision, any request for suspension
of concessions must be authorized by the DSB "within 30 days of the expiry of the reasonable period
of time". As the reasonab le period of time in this dispute expired on 15 May 2012, the deadline
under Article 22.6 for authorizing the suspension of concessions expired on 15 June 2012.
6. The Philippines has indicated that, according to the sequencing agreement, the Parties are
under an obligation to find a prompt solution regarding any "procedural aspect" that arises
concerning the procedures established in that agreement. Thailand disagrees with the Philippines'
position that the Appellate Body's suspension of its work in both a ppeals constitutes a "procedural
aspect" of the sequencing agreement. Rather, as the Philippines has previously acknowledged, for
example in its communication in document WT/DS371/32 dated 12 February 2020, the Appellate
Body suspended its work due to "in stitutional constraints" as a result of insufficient number of
Appellate Body Members. Thailand has supported, and continues to support, efforts to resolve these
institutional constraints and encourages all WTO Members, including the Philippines, to do likewise.
7. As we all know, the real issue here is the Appellate Body crisis, not any individual dispute. The
Appellate Body crisis has imposed significant challenges on the rules -based system, including with
respect to all pending appeals. The Philippines' previous request for suspension of concessions
underlines the urgency of resolving the problems affecting the Appellate Body as a matter of priority
so as to avoid unilateral actions that are contrary to Article 23 of the DSU. As we will discuss on the
agenda item 15 for today's meeting, Thailand fully supports the Appellate Body process and urges
Members to move ahead with the process of selecting new Appellate Body members.
8. Finally, as indicated during previous exchanges with the Philippines, Thailand remains open to
a bilateral dialogue with an aim to identify a possible solution to the substantive issues in this WTO
dispute that is mutually acceptable to both parties.