WTO Dispute Settlement Mechanism(4)

the complainant made is not consistent with the aim of the WTO dispute settlement system. Art. 3.7 of the DSU explicitly states: “The aim of the dispute settlement mechanism is to secure a positive solution to a dispute. A solution mutually acceptable to the parties to a dispute and consistent with the covered agreements is clearly to be preferred.” Thus, the basic aim of dispute settlement in the WTO is to settle disputes. This basic aim is affirmed elsewhere in the DSU. Art. 3.4, for example, stipulates: “Recommendations or rulings made by the DSB shall be aimed at achieving a satisfactory settlement of the matter in accordance with the rights and obligations under this Understanding and under the covered agreements.”
Furthermore, Art. 3.2 of the DSU states that the Members of the WTO “recognize” that the dispute settlement system “serves 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”. Given the explicit aim of dispute settlement that permeates the DSU, the Appellate Body does not consider that Art. 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.
In sum, as ruled by the Appellate Body in India - Patent Protection (DS50), “[i]n United States - Shirts and Blouses, we said that ‘[a] panel need only address those claims which must be addressed in order to resolve the matter in issue in the dispute’. This means that a panel has the discretion to determine the claims it must address in order to resolve the dispute between the parties -- provided that those claims are within that panel's terms of reference”.20
However, is there any limits to such a discretion exercised as judicial economy? With regard to this issue, the Appellate Body in Australia-Salmon (DS18) finds that, the principle of judicial economy has to be applied by panels keeping in their mind the aim of the dispute settlement system, i.e, “to secure a positive solution to a dispute” as provided for in Art. 3.7 of the DSU and affirmed in Art. 3.4 of the DSU, which stipulates: “Recommendations or rulings made by the DSB shall be aimed at achieving a satisfactory settlement of the matter in accordance with the rights and obligations under this Understanding and under the covered agreements.” Therefore, to provide only a partial resolution of the matter at issue would be false judicial economy. A panel has to address those claims on which a finding is necessary in order to enable the DSB to make sufficiently precise recommendations and rulings so as to allow for pro

mpt compliance by a Member with those recommendations and rulings “in order to ensure effective resolution of disputes to the benefit of all Members”.21
To sum up, as ruled by the Appellate Body in US-Lamp Meat (DS177/DS178), “on the issue of panels' exercise of judicial economy, we have previously explained that panels ‘need only address those claims which must be addressed in order to resolve the matter in issue in the dispute’. At the same time, the ‘discretion’ a panel enjoys to determine which claims it should address is not without limits, as a panel is obliged ‘to address those claims on which a finding is necessary in order to enable the DSB

《WTO Dispute Settlement Mechanism(4)(第8页)》