1. MEASURE AND PRODUCT AT ISSUE
• Measure at issue: Thailand's customs and tax measures.
• Product at issue: Cigarettes imported from the Philippines.
2. SUMMARY OF KEY PANEL/AB FINDINGS
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• CVA Art. 1.1 and 1.2(a) (valuation in a related-party transaction): In determining the acceptability of the transaction
value declared by the importer in a related-party transaction, customs authorities must (i) examine the circumstances of
the sale in the light of the information provided by the importer or otherwise; (ii) communicate to the importer the grounds
for preliminarily considering that the relationship influenced the price; and (iii) give the importer a reasonable opportunity
to respond so that the importer can submit further information. The Panel found that Thai Customs acted inconsistently
with Arts. 1.1 and 1.2(a) in rejecting the transaction value of the imported cigarettes because it failed to properly examine
the circumstances of the transaction between the importer and the seller.
• CVA Art. 16 (customs' explanation of valuation decision): Under Art. 16, when requested, the customs authority
must provide a written explanation that is sufficient to make clear and give details of how the customs value of the
importer's goods was determined. The Panel concluded that the basis for rejecting the transaction value as provided
in Thai Customs' letter to the importer (i.e. “it cannot be proven whether the relationship has an influence on the
determination of customs values or not”) was inadequate to explain the reason for rejecting the transaction value within
the meaning of Art. 16.
• GATT Art. III:2 (national treatment – taxes and charges): Thailand's measure subjected resellers of imported
cigarettes to VAT when they do not satisfy conditions for obtaining input tax credits necessary to achieve zero VAT liability;
resellers of like domestic cigarettes are never subject to VAT liability by reason of a complete exemption from VAT. The
fact that resellers of imported cigarettes may take action to achieve zero VAT liability under Thailand's measure does not
preclude a finding of inconsistency. The Appellate Body upheld the Panel's finding that Thailand acted inconsistently with
Art. III:2, first sentence.
• GATT Art. III:4 (national treatment – domestic laws and regulations): The analysis must be grounded in close
scrutiny of the “fundamental thrust and effect of the measure itself”. Such examination normally requires an identification
of the implications of the measure for the conditions of competition between imported and like domestic products in the
marketplace; this may be discerned from the design, structure, and expected operation of the measure and need not be
based on empirical evidence as to the actual effects. When imported and like domestic products are subject to a single
regulatory regime with the only difference being that imported products must comply with additional requirements, this
would provide a significant indication that imported products are treated less favourably. The Appellate Body upheld
the Panel's finding that Thailand treats imported cigarettes less favourably than like domestic cigarettes by imposing
additional administrative requirements only on resellers of imported cigarettes.
• GATT Art. X:3(b) (trade regulations – prompt review of administration action on customs matters (guarantee
decisions): ): “Prompt review and correction” under Art. X:3(b) requires review and correction performed in a quick and
effective manner and without delay. The nature of the specific administrative action at issue also informs the meaning of
“prompt”. For review of a customs guarantee to be timely and effective, it must be possible to challenge the guarantee
during the time it serves as a security. Thai law delays review of guarantee decisions because they can only be challenged
once a notice of assessment of final duty liability is issued. The Appellate Body found that this system does not ensure
prompt review of administrative action and upheld the Panel's finding that Thailand acted inconsistently with Art. X:3(b).