Thailand – Customs and Fiscal Measures on Cigarettes
from the Philippines

Communication from Thailand

The following communication, dated 6 March 2020, was received from the delegation of Thailand with the request that it be circulated to the Dispute Settlement Body (DSB).

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Thailand sets forth below the content of its interventions at the DSB meeting of 28 February 2020 and 5 March 2020 regarding Item 6 of the agenda concerning the Philippines' request for suspension of concessions in the dispute Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines (DS371).

1.       Thailand considers that item 6 of the proposed agenda, regarding the Philippines' request for suspension of concessions in the dispute Thailand – Cigarettes, is not proper because of the ongoing appeals and unadopted reports in the proceedings under Article 21.5 of the DSU. In any event, to the extent that the Philippines seeks to ignore the agreed procedures under the sequencing agreement, the Philippines' request is made outside the 30-day deadline in Article 22.6 of the DSU.

2.       Thailand was compelled to block the adoption of the agenda when this meeting first convened on Friday 28 February. We did not do so lightly, but, as we explained, the Philippines' request raises broad systemic issues about the status and future of the dispute settlement system. The DSB should not be rushed into pre-judging these issues on the basis of an artificial deadline of the Philippines' creation.

3.       We appreciate the Chairman's involvement in consultations with the parties on this issue. As explained during the consultations, Thailand does not want the work of the DSB, including the adoption of pending reports, and consideration of efforts to unblock the Appellate Body selection process, to be impacted unnecessarily as a result of the Philippines' unilateral actions. Members should join hands in swiftly resolving the unprecedented crisis faced by this organization rather than deepening it.

4.       In these circumstances, and in line with the agreement reached with the Chair and the Philippines yesterday, Thailand is willing to join consensus on adopting the agenda for this meeting solely on the clear understanding that, following any discussion on the topic, item 6 will be suspended, meaning that in this meeting the DSB will not authorize the Philippines to suspend concessions. If that understanding of the agreement reached yesterday is in any way incorrect, Thailand will be forced to continue to oppose adoption of the agenda.

5.       In agreeing to this compromise for the purposes of this meeting, Thailand retains all of its rights under the DSU and the sequencing agreement between the parties. These include the right to oppose the inclusion of a request for authorization to suspend by the Philippines on the agenda of any future DSB meeting, and to oppose any action by the DSB on any such request as long as the conditions of the DSU and the sequencing agreement between the parties have not been fulfilled. Thailand urges the Philippines to exercise restraint in the interest of the system as a whole and refrain from putting this matter before the DSB. Thailand reiterates its willingness to enter into bilateral dialogue with the Philippines to explore possible ways forward.