WT/REG394/2  
 
5 November 2020 
(20-7852) Page: 1/12 
Committee on Regional Trade Agreements  Original: English/Spanish  
 
FREE TRADE AGREEMENT BETWEEN THE EFTA STATES  (ICELAND, LIECHTENSTEIN,  
NORWAY AND SWITZERLAND), AND TH E PHILIPPINES  
(GOODS AND SERVICES ) 
QUESTIONS AND REPLIES  
 The following communication, dated 30 October  2020, is being circulated at the request of the 
delegations of the EFTA States (Iceland, Liechtenstein, Norway and Switzerland) , and the Philippines.  
 
_______________  
 
 
Question s from the delegation of  Canada  
 
Sanitary and phytosanitary measures  
 
1.1.  Paragraph 3.50 states: "The Agreement contains rules on consultations 
(Article  4.10). The Parties further agree, that no later than two years from the entry into 
force of the Agreement, and thereafter upon  request by a Party, a joint review of 
Chapter  4 shall take place with a view to extending to the Parties treatment granted to a 
third -party, with whom all Parties have established arrangements concerning SPS 
regulations (Article  4.11)."  
a. Canada would be interested in knowing whether any issues subject to 
consultations have been referred to dispute settlement.  
Joint response from the Parties  
 
 There have been no issues among the Parties which were subjected to consultations; thus, 
the dispute settlement mechanism was never invoked.  
 
b. Canada would be interested in knowing if Parties can share their experiences 
with implementing Article 4.11 of the Agreement and any outcomes arising the 
joint reviews.  
Joint response from the Parties  
 
 No experiences can be shared yet as a joint review. The joint review should be prompted by 
a request from a Party . 
 
1.2.  Paragraph 5.16 states, in part: "[…]It provides for disciplines on transparency in the 
publication of laws and regulations, judicial decisions and administrative rulings of 
general application as well as inter national agreements to which the Parties are party that 
may affect their procurement markets (Article 9.1)."  
 Is there a mechanism in place for reviewing or enforcing transparency as described 
here?  
 
 
 
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  Joint response from the Parties  
 
 Clarification: Is Canada asking whether above transparency mechanism in Art icle 9.1 on 
Government Procurement exists in the SPS Chapter? If yes, the answer is:  
 
 The transparency obligation in the Government Procurement Chapter of this FTA is likely 
patter ned after the WTO GPA and is different from that of the WTO SPS Agreement. The Philippines -
EFTA SPS Chapter uses the review and transparency mechanism under the WTO SPS Agreement.   
 
Government procurement  
 
1.3.  Paragraph 5.16 states, in part: "[…]Moreover, if a Party grants to a third -party 
additional benefit to access its procurement market after the entry into force of the 
Agreement, it shall without delay, notify the other Parties. The Party granting additiona l 
benefits shall, upon request by another Party, enter into negotiations to extend similar 
benefits to the other Parties on a reciprocal basis (Article 9.2)."  
 Has any Party entered into negotiations to "extend similar benefits to the other 
Parties on a re ciprocal basis" as a consequence of their granting a third -party additional 
access to its procurement market? How would this requirement be enforced?  
 
Joint response from the Parties  
 
 The Philippines has not entered into  any negotiation to "extend similar benefits to the other 
Parties on a reciprocal basis" as a consequence of their granting a third -party additional access to 
its procurement market.  
 
 Article 9.2 has a similar provision in the Philippine s-Japan Economic P artnership Agreement, 
thus: 
 
 Chapter 11 Government Procurement  
 ... 
 Article 132 Negotiations on Non -discrimination  
 In the event that a Party offers a non -Party any advantages of access to its government 
procurement market or any advantageous treatment c oncerning the measures regarding 
government procurement, the former Party shall consent to enter into negotiations with the 
other Party with a view to extending these advantages or advantageous treatment to the other 
Party.  
... 
 
 Nonetheless, the Philippin es has not entered into further negotiations nor has been a party to 
any agreement extending market access to its government procurement.  
 
1.4.  Paragraph 5.17 states: "Chapter 9 shall be reviewed, by the Joint Committee, within 
three years from the entry into f orce of the Agreement. The possibility of developing the 
Parties' commitments in Government procurement shall be examined (Article 9.3)."  
 Has the Joint Committee reviewed Chapter 9 since the signing of this agreement in 
2016? If yes, what was the outcome?  
 
Joint response from the Parties  
 
 The Joint Committee has not yet reviewed Chapter 9 since the PH -EFTA FTA signing.  
 
1.5.  Paragraph 5.18 states: "All the EFTA States are parties to the plurilateral WTO 1994 
Agreement on Government Procurement (GPA) and/or the revised GPA1 while the 
Philippines recently became an observer to the GPA (June 2019)."  
 
1 The revised GPA's entry into force is still pending for Switzerland at the time this factual 
presentation is being written.  WT/REG394/2  
 
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   Has the Philippines ' new status as an observer to the GPA resulted in any increased 
interest on its part in pursuing accession to the GPA ? 
 
Joint response from the Parties  
 
 Yes, the Observer Status of the Philippines increased its interest in possibly pursuing accession 
to the GPA.  
 
 Moreover, the Philippines already espouses the GPA's objective of fair, transparent and 
non-discriminatory competition for purchases of goods and services by governments and embraces 
the broader purpose of promoting good governance, the efficient and effective management of public 
resources, and the attainment of best value for money in national procurement systems.  
 
 As an Observer, the Philippines has been able to participate in the Committee meetings and 
gain access to the Committee 's working documents, which allows the Philippines to learn from the 
experiences of other countries as to negotiat ions and possible accession to the GPA.  
 
Sustainable development, environment and labour  
 
1.6.  Section 5.10.1 – Sustainable development, environment, and labour (Chapter 11): 
Canada welcomes the inclusion of language on trade and environment in the EFTA -
Philipp ines FTA. Canada understands this is a major milestone for the Philippines as it is 
the first time the Philippines includes such provisions.  
 Could the Philippines please indicate if this Agreement is representative of its 
approach on environment in its fu ture FTAs?  
 
Joint response from the Parties  
 
 The Philippines put environment as key element in our current development priorities and will 
be continuously included in our future international trade and national development commitments 
to ensure inclusive growth and sustainable development. This is rooted on the following policies the 
country has committed and put in place:  
 
• The Philippines ' strong commitment to achieve the Sustainable Development Goals 
(SDGs) by 2030.  The Philippines recognizes the important role that international trade plays 
in achieving these goals, particularly on technical assistance that will help achieve more 
inclusiv e growth and poverty reduction. Most importantly, we recognize the role of trade, 
through agreements that mutually agreed upon, that contribute in the implementation of 
activities/endeavors that would make our environment cleaner and ensure that our natura l 
resources are utilized in a more sustainable manner. As such, the Philippines continuously 
upholds economic development and environmental protection as interdependent and mutually 
supportive pillars of sustainable development and, thus strives to facilit ate and promote 
investment and trade that contribute to sustainable development such as green technologies.  
• The Philippines ' steadfast commitment to meet its obligations under the different 
multilateral environmental agreements (MEAs) and labor agreements to which it is 
Party.  The country is adopting and implementing various national environmental laws, 
policies, rules and regulations aimed at improving the state of the environment and natural 
resources. The country 's ability to maintain its status as a ben eficiary of the European Union 's 
Generalised Scheme of Preferences Plus, which monitors eight core multilateral environmental 
agreements over the years, serves a testament to this strong commitment to contribute in 
the global environmental goals.  
 The Phi lippines remains committed in pursuing its obligations under the UN Framework 
Convention on Climate Change and the Paris Agreement, and to contribute to the global ambition of 
limiting warming to 1.5°C above pre -industrial levels, while prioritizing adapta tion in consideration 
of our vulnerability. This commitment is made despite our country 's meagre, at only 0.3 %, 
contribution to the global greenhouse gas emissions. The Philippines will submit its first Nationally 
Determined Contribution (NDC) in support o f our national development priorities on having a 
climate -resilient and low -carbon future.  
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   Moreover, it may be noted that the country has already ratified eight fundamental ILO 
Conventions. With the growing labo ur force and increasing disasters and crise s experienced by the 
country, the local economy and jobs need to be resilient and secured. Hence, the Philippines put 
decent work, social protection and livelihood as a priority to build back better after disaster and 
ensure sustainable and inclusive growt h. 
 
• The country 's aspirations and national priorities and strategies for achieving 
inclusive growth and sustainable and resilient development.  The Philippine 
Development Plan 2017 -2022 – the country 's blueprint for sustainable development, upon 
which all e conomic and development activities are anchored – establishes ecological integrity 
as a bedrock strategy for achieving the sustainable development; and will likely remain a 
priority in the succeeding planning cycles, as the country move towards the attainm ent of the 
country 's long -term vision for 2040 of a strongly -rooted, comfortable and secure life for 
all Filipinos  (dubbed as AmBisyon Natin 2040).  
• The Philippines continues to implement concrete actions towards sustainable 
consumption and production . The Philippine  Action  Plan for Sustainable  Consumption  and 
Production  (PAP4SCP)  2020-2040 intends  to influence  behavio ural change  at the national,  
community,  and individual  levels,  especially  in consuming  and producing  more green  goods  
and services,  and practi cing more sustainable  and climate -smart  lifestyles.  It specifies  key 
strategies  and programmatic  actions  on a) valuation  of economic,  social,  and environmental  
costs and benefits  of production  and consumption  processes,  and (b) innovation  and 
investment  in green  technologies  and practices  towards  improving  resource  use efficiency.   
 Notwithstanding the foregoing, with respect to future FTAs the approach on environment 
would still depend on the mandate and the result of consultations. In any case, the Philippines is of 
the submission that for FTAs, the Trade and Sustainable Development provisions shall: (a) be based 
on a cooperative and dialogue -oriented approach, and not subject to arbitration procedures or rules 
of dispute settlement; and (b) recogniz e the Parties ' rights to determine and establish their own 
levels of protection, consistent with internationally agreed standards and rules, and where market 
access commitments shall not be made contingent on conditions to be imposed on account of trade 
and sustainable development.  
 
Question s from the delegation of  the European Union  
 
Provisions on trade in goods  
 
Sector -specific provisions on trade in goods  
 
Agricultural products  
 
1.7.  Paragraph 3.71, "3.71 Norway's and Switzerland's schedules of concessions t o the 
Philippines contain specific provisions which apply to products identified as Processed 
Agricultural Products (PAP). For such goods the Agreement does not preclude the levying 
of import duties and the application of measures on exports, when such mea sures are 
intended to take account of differences in the cost of the agricultural raw materials 
incorporated into them. Moreover, import duties levied by the Parties, shall be based on, 
but not exceed, the differences between the domestic price and the wor ld market price of 
the agricultural raw materials incorporated into the products concerned. Switzerland and 
Norway shall publish the applicable import duties for PAPs on the website of the EFTA 
Secretariat. In the case of Norway, and subject to the provisi ons set out in Section I of 
Annex VI, preferential treatment granted for PAPs originating in the Philippines shall be 
no less favourable than that accorded to the European Union. " 
 We would be interested to know the following:  
 
a. in the case of Switzerland: has preferential treatment granted for PAPs 
originating in the Philippines received treatment less favourable than that 
accorded to the European Union?  
 
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  Joint response from the Parties  
 
 With respect to imports, Switzerland 's policy of price compensation measures consists of the 
levying of a duty comprising an agricultural and industrial element. The agricultural element 
compensates for the differences between the prices for the relevant agricultural raw material in a 
processed product on the domestic and on the external market. In addition to the agricultural 
element an industrial element is added which provides a certain industrial protection. On imports 
from countries with which Switzerland has concluded free tr ade agreements covering processed 
agricultural goods, the industrial element is usually not levied. Switzerland applies such a price 
compensation mechanism in all FTAs covering PAPs.  
 
b. The applicable import duties for PAPs do not seem to be available on the  website 
of the EFTA secretariat. Will they be published soon?  
Joint response from the Parties  
 
 The import duties can be found at https://www.efta.int/free -trade/free -trade-
agreements/pap -notifications.  
 
Question s from the delegation of  Mexico  
 
Provisions on Trade in Services and Investment  
 
Liberalization commitments  
 
1.8.  Regarding paragraph 4.17., it would be interesting to know the number and the 
nature, type or content of the additional commitments made by each of  the States parties 
to the Agreement, as well who has made these commitments and, generally, during which 
periods such commitments are to be implemented.  
Joint response from the Parties  
 
 Under its schedule of specific commitments, the Philippines inscribe d additional commitments 
under telecommunications and maritime transport services.  
 
 Additional commitments in telecommunication services aim to provide transparency in the 
procedure for the allocation of spectrum for the supply of telecommunications serv ices.  
 
 On the other hand, additional commitments made in maritime transport ensure that the 
following services are available for international maritime transport suppliers: pilotage; towing and 
tug assistance; provisioning, fueling and watering; garbage collecting and ballast water disposal; 
port captain 's services; navigation aids; shore -based operational services essential to ship 
operation; emergency repair, and anchorage, berths and berthing.  
 
 The EFTA States have made a number of  additional commitments beyond GATS. The note by 
the WTO Secretariat contains detailed tables specifying the sectors where EFTA States have gone 
beyond GATS and we would like to refer to those tables for an overview. There is no transition period 
foreseen and all commitments are effective immediately.  
 
1.9.  Paragraph 4.19. states that schedules of specific commitments will be subject to 
periodic review. It would be interesting to know whether there is a planned time -frame 
for that review and whether there is an y commitment to include more sectors in the 
review or to improve the commitments that are already in the schedules.  
Joint response from the Parties  
 
 Under Chapter 6 (Trade in Services), Article 6.18 of the Agreement provides for the review of 
the Schedule  of Specific Commitments every two years, with the view of liberalizing trade in services. 
The first review shall commence no later than three years after the entry into force of the agreement.  
 
Note:  The Philippines -EFTA Free Trade Agreement entered into force on 1 June 2018 for the 
Philippines, Norway, Liechtenstein and Switzerland and on 1 January 2020 for Iceland.  WT/REG394/2  
 
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  Sector -specific commitments  
 
1.10.   Paragraphs 4.26., 4.48. and 4.59. state that the sector -specific commitments made 
by Iceland, Norway and Switzerland for the telecommunications sector under this 
Agreement mirror to a very large extent their GATS commitments. The table in 
paragraph  4.37., however, shows that Liechtenstein's commitments, unlike those of its 
counterparts, will be "full" (not subject to limitation(s) under market access or national 
treatment) and "improved" (as compared to those under the GATS). In light of the above, 
we would like to know:  
a. What would be the main differences betwee n the commitments made by Iceland, 
Norway and Switzerland and the new level of ambition of the commitments made 
by Liechtenstein?  
Joint response from the Parties  
 
 The schedule for Liechtenstein is similar to that of Switzerland and compared to the s chedul es 
of Norway and Iceland have a somewhat greater coverage of telecom subsectors.  
 
b. How will Liechtenstein's commitments under the Agreement represent an 
"improvement" on its GATS commitments?  
Joint response from the Parties  
 
 In addition to greater coverage  of telecoms subsector than in GATS, which is limited to 
commitments in enhanced/added -value telecom services, the national monopoly reservation in 
GATS is also removed.  
 
1.11.   Paragraph 4.72. states that the commitments that the Philippines will make under 
the Agreement are "partial" (subject to some limitation(s) under market access or 
national treatment) and "similar" (possibly, in specific individual cases, with limited 
improvements and/or limited additional reservations). In light of the above, we would 
like to know:  
a. What are these limitations on telecommunication services, based on which the 
Philippines's commitments are considered "partial"?  
Joint response from the Parties  
 
The Philippines made partial commitments in telecommunication services under Mode 3, 
taking into consideration limitations on foreign equity participation and the required franchise 
approval from the Congress of the Philippines, among others. For the compl ete list of limitations, 
kindly refer to the Philippines Schedule of Specific Commitments under PH -EFTA Agreement, which 
can be accessed at https://www.efta.int/media/ documents/legal -texts/free -trade-
relations/philippines/annexes/Annex -XI-Appendix -1-The-Philippines.pdf  
 
b. For which specific cases are the Philippines's commitments under the Agreement 
considered "similar" to, rather than the "same" as, its commitments under the 
GATS?  
Joint response from the Parties  
 
 Based from the table of comparison between GATS and PH -EFTA commitments prepared by 
the WTO Secretariat (Table 4.5), the Philippines has "similar " commitments on telecommunication 
services and services auxiliary to all modes of transport. Kindly note that commitments on 
telecommunication services include the following additional commitments:  
 
 "Where spectrum is to be allocated for the supply of telecommunications services, the 
competent authority of a Party shall provide for a transparent and competitive process for the 
allocation of spectrum which would include the following:  
 
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   (a) a public consultation process on the allocation process;  
(b) sufficient detail of the process in order to apply for and bid for the spectrum, including 
providing sufficient reasonable time for all applicants to review and examine the requirements 
and to prepare their submissions;  
 (c) the detailed selection principles and criteria for choosing among applicants; and  
 (d) a transparent and objective method for determining eli gibility for award of the spectrum. "  
 
 On the other hand, commitments made under Mode 4 on services auxiliary to all modes of 
transport are all unbound. In addition, two other subsectors under transport services have "partial " 
commitments under PH -EFTA, w hich are:  
 
• Container yard and depot service within ports (749**)  
• Other supporting and auxiliary transport services (749).  
 
1.12.   Furthermore, the table in paragraph 4.74. states that, under the Agreement, the 
Philippines replicates only partial commitments for  courier services and some 
telecommunication services from the GATS. In light of the above, we would like to know:  
a. What are the limitations of these "partial" commitments?  
Joint response from the Parties  
 
 It may be noted that the Philippines only has commitments in courier services but none on 
postal/mail services under the GATS and the Philippines -EFTA. Thus, Philippine commitments on 
courier services in the Schedule of Specific Commitments are subject to the limitations under the 
Horizontal Commitments. These include limitations on foreign equity participation and acquisition of 
land, among others.  
 
 For the full list of limitations, please refer to the Philippines ' Horizontal Commitments under 
PH-EFTA Ag reement, which can be accessed through this link: 
https://www.efta.int/media/documents/legal -texts/free -trade-relations/philippines/annexes/ 
Annex -XI-Appendix -1-The-Philippines.pdf  
 
b. In addition to "courier services", for which other "telecommunication serv ices" 
would it have these "partial" commitments?  
Joint response from the Parties  
 
 The Philippines made partial commitments in the following subsectors under 
telecommunications services:  
 
 The following services (a -g) are offered only on a facilities basi s, for public use, using either 
wired or wireless technology except cable television (CATV) and satellite  
 
a. Voice telephone services (5721)  
- Local services  
- Toll services  
 
Domestic  
International  
 
b. Packet -switched data transmission services (7523* *)  
c. Circuit -switched data transmission services (7523**)  
d. Telex services (7523**)  
e. Telegraph services (7522)  
f. Telegraph services (7522)  
g. Private leased circuit services (7522**+7523)  
h. Other services  
- Cellular mobile Telephone service (75213)  
- Satellite services  
 
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  Data and message transmission services  
Data network services (75231)  
Electronic message & information services (75232)  
 
Domestic regulation  
 
1.13.   Paragraph 4.84: Regarding competition in professional services are you foreseeing 
any challenges in order to harmonize state regulation and self -regulation by professional 
bodies, between the countries of this FTA?  
Joint response from the Parties  
 
 Regarding the query on harmonizat ion between the Parties, Article 6.8 of the PH -EFTA FTA or 
the provision on Recognition, provides that countries or parties in the FTA shall give due 
consideration to any requests on the recognition of education or experience obtained, requirements 
met, or  licenses or certifications granted by the other party. Such arrangement may be based upon 
an agreement or arrangement with the other party or done unilaterally. No Party has so far made 
any request in this respect.  
 
 Professions in the Philippines are reg ulated by the state through the Professional Regulation 
Commission. Each profession in the Philippines is governed by their respective laws, which prescribes 
the licensing requirements and qualifications to practice the said profession in the country. Thus , 
there is no concern on harmonization between state regulation and self -regulation by professional 
bodies for the Philippines.  
 
 Relative to the alignment of domestic qualification standard with international qualifications 
framework, the Philippine Qual ification Framework (PQF) was established by law through Republic 
Act No. 10968. Through this act, the International Alignment Working Group was established to 
initiate comparability and benchmarking activities of the PQF with other countries and regional or 
international groupings.  
 
 The horizontal section of the Philippines ' schedule of Commitments stipulates that there are 
specific requirements or permits needed before foreigner can practice in the country. Note that the 
reference provision cited in the question refers to competence of professionals and not competition.  
 
Investment  
 
1.14.   Paragraph 4.101.  Which specific disciplines does this paragraph refer to?  
Joint response from the Parties  
 
 The disciplines referred to under paragraph 4.101 include the provision of stable, 
non-discriminatory, and transparent investment condit ions for investors and promotion of 
investment flows as a means for achieving economic growth and development.  
 
1.15.   Paragraph 4.102. What dispute settlement mechanisms does the Agreement 
envisage for disputes between investors and the State?  
Joint response fro m the Parties  
 
 The Investment Chapter does not include provisions on investor -state dispute settlement. The 
objective of the Chapter is to mutually enhance investment opportunities.  
 
Competition  
 
1.16.   Paragraph 5.26: The Parties shall cooperate in their dealin gs on anticompetitive 
practices with the aim of ending such practices (Article 10.2). Consultations, within the 
Joint Committee, may be requested by a Party (Article 10.3).  
a. Are there any cooperation activities between the Parties regarding merger 
control, cooperation on capacity building or advocacy that have been WT/REG394/2  
 
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  implemented between the competition authorities of the Parties under the 
agreement?   
b. Has there been any need to cooperate in other strategic areas such as technical 
assistance or advocacy?  
Joint response from the Parties  
 
 The Philippines and EFTA have yet to discuss the operationalization of cooperation mechanisms 
related to the Competition provisions of the FTA.   
 
1.17.   Paragraph 5.26: Consultations, within the Joint Committee, may be requested by a 
Party (Article 10.3).  
 Have there been any cases in which the Joint Committee requested the competition 
authorities of the Parties to take some form of action in respect of cooperation, 
consultations or information exchange, in accordance with Article 10.3?  
 
Joint response from the Parties  
 
 None. The Joint Committee has not requested the competition authorities of the Parties to 
undertake such activities.  
 
Electronic commerce  
 
1.18.   Paragraph 5.34: The Agreement does not contain any s pecific disciplines on 
electronic commerce.  
 Although the table of contents of the factual presentation refers to two chapters, 
electronic commerce and SMEs, they were not included in the Agreement. For Mexico, 
these areas are not only extremely important for strengthening trade, but are also part of 
a strategy for innovation and inclusion and were thus included in the most recent 
Agreements. In this regard, are you considering any update, modernization or mechanism 
to integrate these areas in the near futu re? 
 
Joint response from the Parties  
 
 Both the Philippines and EFTA, through the Joint Committee may discuss the inclusion of 
additional areas such as e -commerce. The Joint Committee, as indicated in Article 12.3, may take 
decisions and make recommendations by consensus.  
 
 Likewise, Article 12.2 of the FTA allows the Joint Committee to establish sub -committees or 
working groups to assist it in accomplishing its tasks.  
 
Small and medium -sized enterprises  
 
1.19.   Paragraph 5.34: The Agreement does not contain any specific disciplines on SMEs.  
 Although the table of contents  of the factual presentation refers to  two chapters, 
electronic commerce and SMEs, the y were not included in the Agreement . For Mexico, 
these areas are not only extremely important fo r strengthening  trade, but are also part of 
a strategy for innovation and inclusion and were th us included in  the most recent 
Agreements. In this regard, are you considering any update, modernization or mechanism 
to integrate the se areas  in the near future ? 
 
Joint response from the Parties  
 
 Both the Philippines and EFTA, through the Joint Committee may discuss the inclusion of 
additional areas such as SMEs. The Joint Committee, as indicated in Article 12.3, may take decisions 
and make recommendations by consensus.  
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   Likewise, Article 12.2 of the FTA allows the Joint Committee to establish sub -committees or 
working groups to assist it in accomplishing its tasks.  
 
Questions from the delegation of Thailand  
 
Investment ( Scope and Definitio ns) 
 
1.20.   To what extent does scope and definition of investor and investment cover in 
Chapter  7? Does it cover aspects of both investment liberalization and protection? Is it 
applied to all forms of investment both FDI and non -FDI?  
Joint response from the Part ies 
 
 As provided in the Agreement, investors refer to those that make or seek to make investments 
in another Party 's territory. Further, investments refer to those investments admitted in the territory 
of another Party in accordance with its domestic laws , rules and regulations. It did not distinguish 
between FDI and non -FDI. The Agreement provides for the furthering of a legal environment 
conducive to increased investment flows.  
 
Dispute Settlement  
 
1.21.   Article 13.2 (Scope and Coverage), paragraph 3, states t hat: "Where disputes 
regarding the same matter arising under this Agreement and the WTO Agreement, the 
complaining Party shall consider dispute settlement in the WTO. This dispute may, 
however, be settled in either forum at the discretion of the complainin g Party. The forum 
thus selected shall be used to the exclusion of the other."  
a. Can the Parties provide clarification on the scope of the term "same matter"? 
What are the criteria used by the Parties to determine such circumstances?  
Joint response from the Parties  
 
 This provision is what is known as Forum Selection clause in FTA, the goal of which is to 
"prevent conflict of jurisdictions between dispute settlement procedures in different treaties, and the 
vast majority of FTAs concluded in recent years include this type of clause. " In this FTA, this clause 
recognizes the following: (1) the subject matter of the dispute is covered under both the WTO and 
the FTA; (2) the complaining Party has the freedom to choose the forum; and (3) the selection of a 
forum excludes the other forum.  
 
 - All parties are members of the WTO, and recognize that a matter subject of a dispute 
 may be covered under both the WTO and the PH -EFTA FTA, and thus, subject to dispute 
 settlement, or a measure inconsistent with an obligat ion or provision similarly found in 
 the WTO and the FTA. What constitutes "same matter " is determined by the scope, 
 coverage, and application of the dispute settlement provisions under the WTO and the 
 PH-EFTA FTA.  
 
 - Article 1, Annex 2 of the WTO Agreement states "The rules and procedures of this 
 Understanding shall apply to disputes brought pursuant to the consultation and dispute 
 settlement provisions of the agreements listed in Appendix 1 to this Understanding 
 (referred to in this Understanding as the 'covered agreements' xxx. " 
 
 - Article 13.2 paragraph 1 of the PH -EFTA FTA states "The provisions of this Chapter shall 
 apply with respect to the settlement of any dispute concerning the interpretation or 
 applicati on of this Agreement. " 
 
 - Thus, matters arising under the FTA that are likewise matters arising under WTO 
 covered agreements may be considered "same matters. " 
 
b. Can the Parties explain the policy considerations and reasons for stipulating that 
"the compla ining Party shall consider dispute settlement in the WTO" rather than 
dispute settlement proceeding under the Free Trade Agreement?  WT/REG394/2  
 
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   The question stated that WTO shall be considered RATHER THAN dispute settlement 
 proceeding under the FTA. The predicate th at preference shall be given to WTO DSU is 
incorrect. A cursory reading of the paragraph shows no preference or priority of forum. The provision 
itself provides that: "This dispute may, however, be settled in either forum at the discretion of the 
complaini ng Party . The forum thus selected shall be used to the exclusion of the other."  
 
 It is possible that the subject of the dispute arises under both the WTO and the FTA. All Parties 
to the FTA are also members of the WTO. The policy consideration in this cla use is to give the 
complaining Party the choice of forum, when the dispute pertains to a matter arising under both the 
WTO and the FTA. The respective forum under the WTO and the PH -EFTA FTA has its own features. 
The complaining Party is allowed to conside r these features, when it is given the freedom to submit 
its claim in either forum.  
 
1.22.   For procedural or jurisdictional reasons, there could be a situation where the select 
forum fails to make findings on the disputed claims and thus might not be able to del iver 
a conclusive and enforceable outcome for disputing Parties.  
 How do the Parties envisage the resolution of the dispute in such a situation and 
could there be an exception to the fork -in-the road clause if such situation arises?  
 
Joint response from t he Parties  
 
 The choice of forum given to the Parties is two -fold: to give the complaining Party the freedom 
to choose the forum it deems more efficient in resolving the dispute, and to bar forum -shopping. 
There is no exception to this clause. However, the  Parties may still attempt to have a mutually 
acceptable solution, through other means, such as good offices, conciliation, mediation, or 
consultations.  
 
Intellectual property rights  
 
1.23.   Paragraph 5.22 indicates that Section II of Annex XVIII to the Agreemen t contains 
standards concerning the availability, scope and use of IPRs. Building on the WTO 's TRIPS 
Agreement, these standards cover copyright and related rights; trademarks, false 
designations of origin, trade names, and unfair competition; geographical indications; 
patents; plant variety protection; undisclosed information; industrial designs; and 
measures related to biological diversity and traditional knowledge (Articles 3 through 10 
of Annex XVIII to the Agreement).  
Undisclosed information  
 
a. In the context of undisclosed information, Article 8.2 of Annex XVIII to the 
Agreement provides that if an issue pertaining to the implementation of 
paragraph 1, which concerns the protection of undisclosed information, arises, 
the Parties shall jointly wo rk and address the issue, and if necessary, establish 
a mechanism facilitating the cooperation, with a view to finding a mutually 
agreeable measure. Could the Parties provide some examples of potential issues 
they envisaged in relation to this Article?  
Joint response from the Parties  
 
 An example of potential issue that may arise is the implementation of new laws, policies, and 
administrative regulations and practices; or the amendments thereof, which pertain or relate to the 
issue of protection of undisclo sed information.  
 
 Modalities of cooperation may include bilateral discussions on the issues especially, by legal 
and technical experts.  
 
Biological diversity and traditional knowledge  
 
b. In the context of measures related to biological diversity and traditi onal 
knowledge, Article 10.6 of Annex XVIII to the Agreement provides that the 
Parties shall collaborate to address situations of non -compliance with the WT/REG394/2  
 
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  provisions of this Article (Measures Related to Biological Diversity and 
Traditional Knowledge). Is th ere any relationship between this provision and 
Chapter 13 (Dispute Settlement) of the Agreement? If so, to what extent?  
Joint response from the Parties  
 
 The provision under Article 10.6 of Annex XVIII requires collaboration between the Parties 
with a vie w to address situations of non -compliance with the provisions of Article 10. As such, efforts 
shall be exerted and exhausted to enable the Parties to arrive at mutually acceptable and reasonable 
measures without resorting to the dispute settlement mechanis m provided under Chapter 13.  
 
1.24.   Article 7 of the Section II of Annex XVIII to the Agreement contains the protection 
in plant variety in which the Parties shall provide for adequate and effective protection of 
new varieties of plants. Thus, to ensure the protection of plant varieties, the  Parties shall 
comply with the substantive provisions of this Article or may opt to join the UPOV 
Convention by 2019.  
 We would like to learn about the progress of the Liechtenstein  and Liechtenstein  on 
their current status following the enforcement of th is FTA Agreement.  
 
Joint response from the Parties  
 
The Philippines is compliant with the substantive provisions of Article 7 (Plant Variety 
Protection) of Annex XVIII through a sui generis system of protection under Republic Act No. 9168 
or the Plant Vari ety Protection Act of the Philippines.  
 
 Although Liechtenstein is not party to the Convention, it fulfils all the substantive provisions 
of the article.  
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