EUROPEAN COMMUNITIES – EXPORT SUBSIDIES ON SUGAR
Document: Notification of an Other Appeal by Thailand under Article 16.4 and Article 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), and under Rule 23(1) of the Working Procedures for Appellate Review
Date: 25 January 2005
Document codes: WT/DS283/8
Complainant: Thailand
Respondent: EU
Third parties: Australia, Barbados, Belize, Brazil, Canada, China, Colombia, Cuba, Fiji, Guyana, India, Jamaica, Kenya, Madagascar, Malawi, Mauritius, New Zealand, Paraguay, Saint Kitts and Nevis, Eswatini, Tanzania, Trinidad and Tobago, U.S., Côte d’Ivoire
Dispute stage: Appellate Body
Agreements cited: Art. 3.3, 8, 9.1, 10.1  AgricultureArt. 3.1, 3.2  Subsidies and Countervailing Measures (SCM)

EUROPEAN COMMUNITIES – EXPORT SUBSIDIES ON SUGAR

Notification of an Other Appeal by Thailand
under Article 16.4 and Article 17 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU),
and under Rule 23(1) of the Working Procedures for Appellate Review

 The following notification, dated 25 January 200 5, from the Delegation of Thailand, is being
circulated to Members.

Pursuant to Rule 23 of the Appellate Body 's Working Procedures for Appellate Review,
Thailand hereby notifies its decision to appeal to th e Appellate Body certain issues of law covered in
the Panel Report ( Complaint by Thailand) ,
, (the "Panel Report") and certain legal interpretations developed by the Panel in that
Report.

Thailand seeks appellate review of:

(a) the Panel's decision, set out in paragraphs 7. 380-7.387 and in paragraphs 6.14 -6.15 of the
Panel Report, not to make findings on the claims of Thailand under Articles 3.1(a) and 3.2 of
the Agreement on Subsidies and Countervailing Measures (the "SCM Agreement"); and
(b) the Panel's consequent failure to make a r ecommendation in accordance with Article 4.7 of
the SCM Agreement.

The Panel's decision was based on the following erroneous findings:

- that the Panel's rulings under the Agreement on Agriculture should be sufficient to fully
resolve the dispute between the parties (para. 7.383 of the Panel Report);
- that there was "some issue" as to whether the Panel was entitled to make a recommendation in
accordance with Article 4.7 of the SCM Agreement in the circumstances before it (para. 7.384
of the Panel Report);
- that the Panel was not required to rule on the Complainants' claims under the SCM
Agreement "merely in order to obtain what might - but would not necessarily be - more rapid
compliance" (para. 7.384 of the Panel Report);
- that the Panel's exercise of judicial economy did not diminish the rights of the Complainants
with the meaning of Article 19.2 of the U nderstanding on Rules and Procedures Governing
the Settlement of Disputes (the "DSU") (para. 7.385 of the Panel Report); and
- that an additional consideration relevant to th e Panel's decision to exercise judicial economy
was that the Complainants focu sed their claims on the Agreement on Agriculture and did not
set forth their claims under Article 3 of the SCM Agreement in quite as clear and
unambiguous manner as under the Agreement on Agriculture (paras. 6.15 and 7.386 of the
Panel Report).

The Panel's decision not to rule on Thailand's claims under the SCM Agreement has deprived
Thailand of the remedies available under Article 4 of the SCM Agreement, including Thailand's right
under Article 4.7, first sentence, to a recommendati on that those export subsidies on sugar that are
inconsistent with the SCM Agreement and the Agreement on Agriculture be withdrawn without delay;
Thailand's right under Article 4.7, second sentence, that the Panel specify the time-period within
which those subsidies must be withdrawn; and Tha iland's right to take countermeasures in accordance
with the criteria and procedures set out in Article 4.10 of the SCM Agreement in the event that the
European Communities fails to withdraw those subsidies.

The Panel's failure to accord Thailand its ri ghts under Articles 4 of the SCM Agreement is
inconsistent with Articles 3.2 and 19.2 of the DSU, which require panels a nd the Appellate Body not
to "... diminish the rights ... provided in the cove red agreements". The Panel's failure to provide a
recommendation under Article 4.7 of the SCM Agreemen t is also inconsistent with a panel's duty
under Article 11 of the DSU to "make ... findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in the covered agreements".

Thailand requests the Appellate Body to reverse the Panel's legal findings and conclusions on
judicial economy. It further requests the Appellate Body to preserve Thailand's rights under Article
4.7 and 4.10 of the SCM Agreement in accordance with Articles 3.2 and 19. 2 of the DSU by ruling,
on the basis of the factual findings by the Panel a nd the undisputed facts in the Panel record, on the
claims that Thailand made under Articles 3.1( a) and 3.2 of SCM Agreement and making the
recommendation provided under Article 4.7 of the SCM Agreement.

The provisions of the covered agreements th at Thailand considers the Panel to have
erroneously interpreted or applied include, in addition to those cited above:

- Articles 1.2 and Appendix 2 to the DSU;
- Articles 3.4, 3.7, and 19.1 of the DSU; and
- Articles 13(c)(ii) and 21.1 of the Agreement on Agriculture.