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> Article 3.2 of the DSU — “clarify existing
provisions”
> Articles 3.2 and 19.2 of the DSU — “not add to or
diminish rights and obligations”. See also Terms
of Reference of Panels, Specific measure at issue (T.6.3)
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C.3.1 Article 3.2 of the DSU — “clarify existing provisions”
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C.3.1.1 US — Certain EC Products, para. 92
(WT/DS165/AB/R)
… we observe that it is certainly not the task of either panels or
the Appellate Body to amend the DSU or to adopt interpretations within
the meaning of Article IX:2 of the WTO Agreement. Only WTO
Members have the authority to amend the DSU or to adopt such
interpretations. Pursuant to Article 3.2 of the DSU, the task of panels
and the Appellate Body in the dispute settlement system of the WTO is
“to preserve the rights and obligations of Members under the covered
agreements, and to clarify the existing provisions of those
agreements in accordance with customary rules of interpretation of
public international law.” (emphasis added) Determining what the rules
and procedures of the DSU ought to be is not our responsibility nor the
responsibility of panels; it is clearly the responsibility solely of the
Members of the WTO.
C.3.2 Articles 3.2 and 19.2 of the DSU — “not add to or diminish
rights and obligations”. See also Terms of Reference
of Panels, Specific measure at issue (T.6.3)
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C.3.2.1 US — Wool Shirts and Blouses, p. 19, DSR 1997:I, p. 323
at 340
(WT/DS33/AB/R, WT/DS33/AB/R/Corr.1)
… Given the explicit aim of dispute settlement that permeates the DSU,
we do not consider that Article 3.2 of the DSU is meant to
encourage either panels or the Appellate Body to “make law” by
clarifying existing provisions of the WTO Agreement
outside the context of resolving a particular dispute. A panel need only
address those claims which must be addressed in order to resolve the
matter in issue in the dispute.
C.3.2.2 Chile — Alcoholic Beverages, para. 79
(WT/DS87/AB/R, WT/DS110/AB/R)
… In this dispute, while we have rejected certain of the factors
relied upon by the Panel, we have found that the Panel’s legal
conclusions are not tainted by any reversible error of law. In these
circumstances, we do not consider that the Panel has added to the rights
or obligations of any Member of the WTO. Moreover, we have difficulty in
envisaging circumstances in which a panel could add to the rights and
obligations of a Member of the WTO if its conclusions reflected a
correct interpretation and application of provisions of the covered
agreements. Chile’s appeal under Articles 3.2 and 19.2 of the DSU
must, therefore, be denied.
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