WTO Dispute Settlement Mechanism(4)/刘成伟(18)
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
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