WT/DS371/35  
 
4 March  2020 
(20-1675) Page: 1/3 
  Original: English  
 
THAILAND – CUSTOMS A ND FISCAL MEASURES O N 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).  
 
_______________  
 
 
1. The Philippines is disappointed by Thailand 's efforts to block the DSB from conducting its 
regular work at today 's regular meeting. This is a transparent attempt to prevent the Philippines 
from exercising its rights under Article 22 of the DSU to seek the DSB 's authorization to suspend 
concessions in Thailand – Cigarettes ("DS371 "). 
2. The Philippines initiated this dis pute on 07 February 2008, 4,388 days ago from today. The 
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 reque st 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.  WT/DS371/35  
 
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  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.   
 
_______________  
  WT/DS371/35  
 
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  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)   
 
 
__________