Thailand – Customs and Fiscal Measures on Cigarettes
from the Philippines

Communication from the Philippines

The following communication, dated 27 February 2020, was received from the delegation of the Philippines with the request that it be circulated to the Dispute Settlement Body (DSB).

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The Philippines has taken note of Thailand's letter dated 26 February 2020, requesting removal of the Philippines' request under Article 22.2 of the DSU, in Thailand – Cigarettes ("DS371"), from the agenda of the meeting of the Dispute Settlement Body ("DSB") on 28 February 2020.

In light of Thailand's letter, the Philippines wishes to confirm to the Membership that it maintains its Article 22.2 request on the agenda of the DSB meeting. We are ready to engage with Thailand on its concerns contained in the above-mentioned letter at the appropriate item of the agenda. 

The inclusion of this item on the DSB agenda is fully in accordance with the Philippines' rights as a Member of the DSB, and Rules 3 and 4 of the Rules of Procedure for Meetings of the Dispute Settlement Body, particularly that the list of items proposed for the agenda "shall be open to any Member to suggest items for inclusion in the proposed agenda".  The Philippines requested the inclusion of its Article 22.2 request pursuant to these Rules, and did so within the deadline for inscription of items on the DSB agenda, set by the Chair, Monday, 17 February 2020 at 5:00 PM.  The Philippines' Article 22.2 request was thus properly included as item 6 of the proposed DSB agenda.

The Philippines is disappointed by Thailand's efforts to seek removal of the Philippines' Article 22.2 request from the DSB agenda.  This is a transparent attempt by Thailand to prevent the Philippines from exercising its rights under Article 22 of the DSU to seek the DSB's authorization to suspend concessions in DS371.  The Philippines' rights under the DSU are not diminished or otherwise modified by the parties' sequencing understanding. In fact, Thailand committed and agreed that it "shall not assert that the Philippines is precluded from obtaining [such] DSB authorization."^[1] Therefore, Thailand's request that the DSB Chair amend the DSB's agenda by removing the Philippines' Article 22.2 request is inappropriate and not a matter within the Chair's discretion.  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 request from the DSB's agenda, unless there is consensus at the DSB to do so.