THAILAND – CUSTOMS AND FISCAL MEASURES ON CIGARETTES FROM THE PHILIPPINES COMMUNICATION FROM THE PHILIPPINES
Document: Appellate Body report
Date: 4 March 2020
Document codes: WT/DS371/35
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 28 February 2020 , was received from the delegation of the
Philippines with the request that it be circulated to the Dispute Settlement Body (DSB).

Panel Report in this dispute was issued on 15 November 2010, and the Appellate Body issued its
report on 17 June 2011. On 15 July 2011, this august body, the Dispute Settlement Body, formally
adopted the recommendations of the Panel Report, as amended by the Appellate Body report.
Thereafter, the reasonable period of time for Thailand to comply with the recommendations of the
DSB was set for 15 May 2012. At that point, the Philippines' DSU Article 22 rights were established,
as well as its parallel DSU Article 21.5 rights, in order to address any future compliance issues.
3. In good faith, the Philippines pursued its parallel Article 21.5 compliance proceedings, and the
first compliance Panel Report was issued on 12 March 2018. The Philippines also obtained a second
compliance Panel Report on 23 July 2019. Under the Sequencing Understanding between the two
parties, all appeals was to be mandatorily resolved within 90 days from their initiation. The 90 -day
period for the first and second compliance appeals have well expired since 2019. The current DSU
Article 22.2 request is therefore fully within the Philippines' rights, and Thailand expressly committed
to respect these Article 22 rights.
4. Thailand's request that the DSB Chair remove the Philippines ' Article 22.2 request from the
agenda should be rejected. According to the past practice of the DSB, where a Member has a right
to request a specific decision from the DSB, another Member cannot remove that requ est from the
DSB's agenda, unless there is consensus at the DSB to do so.
5. As Members will recall, in EC – Bananas III, two Members sought the removal from the DSB's
agenda of a request by the United States under Article 22.2 of the DSU. As recorded in the minutes
of the meeting, the DSB Chair explained that "[t]he Rules of Procedure for meetings of WTO bodies
should not modify the rights and obligations of Members under the WTO Agreement".1 In particular,
the Rules of Procedure "should not be so interpreted as to block meetings in cases where a Member
had the right to request a specific decision unless there was consensus against such request ".2 At
the time, the Philippines agreed with the DSB Chair that "the Rules of Procedure would not prevail
over the sub stantive rights of Members under the DSU ".3 Twenty years later, the Philippines
continues to hold that view.

1 Minutes of the DSB meeting dated 25 January – 1 February 1999, WT/DSB/M/54, p. 9.
2 Minutes of the DSB meeting dated 25 January – 1 February 1999, WT/DSB/M/54, p. 9.
3 Minutes of the DSB meeting dated 25 January – 1 February 1999, WT/DSB/M/54, p. 10.

6. The Philippines trusts that this Body can continue, today, to address the important items that
figure on the proposed agenda. The Philippines affir ms its right to seek authorization to suspend
concessions under Article 22 of the DSU and looks forward to the DSB routinely authorizing its
request in accordance with the rules.
7. These issues have been subject as well of the exchange of letters between Tha iland and the
Philippines, which have been circulated to the Members in WT/DS371/33 and WT/DS371/34, for
their consideration. The Philippines respects and appreciates Thailand 's position, and both parties
are indeed counting on the rules-based multilateral trading system and this august body to address
these issues in accordance with the rules and past practice.
8. The Philippines confirms its Article 22.2 request for authorization and requests the Chair to
rule on the procedural Point of Order raised by Thai land, and therefore to allow the agenda of the
DSB meeting to be adopted, and for the meeting to proceed.

DATES No. of DAYS
(cumulative)
No. of DAYS
(as of
previous
date)
ORIGINAL PROCEEDINGS
7 February 2008 Day 1 Consultations request
15 November 2010 1,012 1,012 Panel Report Issued
22 February 2011 1,111 99 Thailand Filing of Appeal
17 June 2011 1,226 115 Appellate Body Report Issued
15 July 2011 1,254 28 DSB Adoption of Findings of Panel Report as
amended by AB
15 May 2012 1,559 305 Expiry of Mutually Agreed Reasonable Period of
Time (RPT)
14 June 2012 1,589 30 30 days from RPT – Trigger for Compliance
Remedies
 Article 22 Remedies Art 21.5 Remedies
12 May 2016 3,017 1,428
Philippines' rights
preserved

Thailand commits not to
object

Thailand Waiver of 30
days
per para. 7 of the
sequencing
understanding
Consultations request
first compliance
proceedings
6 July 2017 3,437 420
Consultations request
second compliance
proceedings
12 March 2018 3,686 249
First comp.
Panel Report issued to
parties
9 January 2019 3,989 303
[414 days ago] Thailand's first appeal
9 April 2019 4,079 90
Expiry of 90-day
deadline for 1st
compliance appeal
(para. 5 of sequencing
understanding)
23 July 2019 4,184 105

Second comp.
Panel Report issued to
parties
9 September 2019 4,232 48
[171 days ago]
Thailand's second
appeal
9 December 2019 4,323 90
Expiry of 90-day
deadline for 2nd
compliance appeal
(para. 5 of sequencing
understanding)
12 February 2020 4,388 65
Philippines' Article 22.2
request for authorization
to suspend concessions
(Thailand expressly
committed to respect
the Philippines' right to
request authorization to
suspend consesssions)