Challenges and the outcome 

The initial challenge faced by Thailand was, indeed, how to persuade the EC to enter into discussions on
the matter. On 2 March 2000 the EC requested a waiver of its MFN obligations with regard to the ACP
Agreement. In the eighteen months following the request until the adoption of this waiver, Thailand had on
numerous occasions expressed its concerns relating to the implementation of the ACP Agreement and the
negative effects that it would have on their canned tuna exports. They received no response.
At the Doha Ministerial Conference, however, a give-and-take situation presented itself. The EC-ACP
Agreement could not be extended without the consensus of all WTO members in approving the adoption
of the requested waiver. Realizing that Thailand would not concede, the EC agreed to hold consultations
with Thailand and the Philippines (the complainants) to examine their differences. In the end, Thailand
agreed to concede on the waiver, on condition that their case be taken up in an appropriate forum, with the
aim of resolving the conflict of interest.
Thus on 14 November 2001, the day the waiver was adopted, EU Trade Commissioner Pascal Lamy
addressed a letter to Manuel A. Roxas, the Philippines Secretary of Trade and Industry, and Adisai
Bodharamik, the Thai Minister of Commerce, to express the EC’s willingness to enter into full
consultations with the Philippines and Thailand. The letter stated that the aim of the consultations would be
to ‘examine the extent to which the legitimate interests of the Philippines and Thailand are being unduly
impaired as a result of the implementation of the preferential tariff treatment for canned tuna originating in
ACP countries’.(4) The complainants were not satisfied with the promise of consultations; they had wanted
full arbitration. At Thailand’s insistence, therefore, the letter also included the option of taking the matter
beyond consultations. Since the EC insisted on avoiding arbitration, the parties compromised and decided
that, should consultations fail to deliver an acceptable resolution, ‘the Community would be open to
recourse to the mediation procedure as provided under Art. 5 of the WTO’s DSU’.(5) In this manner, the
dispute process was initiated.
Shortly afterwards three rounds of consultations were held, the first in Brussels (6-7 December 2001), the
second in Manila (29-30 January 2002) and the third in Bangkok (4-5 April 2002). The Ministry of
Commerce did not enlist the direct participation of the private sector until the second and third rounds,
when the latter contributed to the discussions and negotiations. Although government officials are usually
entrusted to do the talking during consultations, in this case Chanintr and other private-sector
representatives were given the opportunity to provide factual support and to tell their story. Throughout
these consultations, complainants demonstrated preparedness and commitment in responding to the
numerous rebuttals and arguments springing back and forth between the parties. Nevertheless, as
anticipated, a satisfactory solution was not to be had at this stage.