WORLD TRADE  
ORGANIZATION  TN/DS/W/74 
15 March 2005 
 
 (05-1086) 
Dispute Settlement Body 
Special Session Original:   English 
 
 
 
CONTRIBUTION BY THE UNITED STATES 
  
 The following communication is circulated at the request of the delegation of the United States. 
 
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 In the joint proposal by Chile and the United States (TN/DS/W/28), several elements were 
proposed to ensure that WTO dispute settlemen t contributes to resolving disputes and remains 
sufficiently flexible to accommodate parties' needs.  One of those elements was item (f), which read: 
 
"(f) providing some form of additional guidance to WTO adjudicative bodies concerning( i) the nature and scope of th e task presented to them (for example when 
the exercise of judicial economy is most useful) and( ii) rules of interpretation of the 
WTO agreements. 
"[To be supplied after further discussions with Members.]" 
 Following are some questions in this regard th at may help to facilitate those discussions with 
Members.  Additional questions or  topics may also be appropriate. 
 
 TN/DS/W/74 
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Some Questions for Consideration
 
 
Judicial economy  
 
• Panels and the Appellate Body ha ve frequently explained that they will not make findings in 
particular areas as part of the application of "judicial economy." 
 
• What is Members' understanding of the concept of "judicial economy"? 
 
• When does it assist Members for a panel or the Appellate Body to exercise "judicial 
economy"?  Conversely, when would the exercise  of "judicial economy" not be helpful to 
Members in resolving a dispute?  For example, could the exercise of "judicial economy" ever 
result in "false economy"? 
 
• What are the benefits to the dispute settleme nt system of exercising "judicial economy"? 
 
Use of public international law  
 
• Article 3.2 of the DSU provides for clarif ying the existing provisions of the covered 
agreements "in accordance with customary rules of  interpretation of public international law."  
Accordingly, it is accepted that panels and th e Appellate Body may have recourse to public 
international law for purposes of using the custom ary rules of interpretation, and it is accepted 
that those rules are reflected in Articles 31 and 32 of the Vienna Convention on the Law of 
Treaties .  Some Members have relied on other aspects of public international law in 
presenting their claims or arguments, and panels and the Appellate Body have cited to other 
aspects of public international law in support of their findings. 
 
• What is the relationship between: 
 
(1)  the function served by the WTO dispute settlement system, which Article 3.2 of the 
DSU states is "to preserve the rights and obligations of Members under the covered 
agreements, and to clarify the existing provi sions of those agreements in accordance 
with customary rules of interpretati on of public international law" and 
 
(2)  public international law other than  customary rules of interpretation? 
 
• Is it appropriate for a panel or the Appellate B ody to refer in a report to public international 
law other than customary rules of interpretation?  If so, then: 
 
 – under what circumstances and for what purpose?   – what would comprise public international law?  
• Are there any customary rules of interpretation other than those found in Articles 31, 32 and 
33 of the VCLT? 
 
Interpretive approach ("gap filling")
 
 
• Articles 3.2 and 19.2 of the DSU provide th at recommendations and rulings of the DSB 
"cannot add to or diminish the rights and oblig ations provided in the covered agreements."  
The Appellate Body has stated that: 
  TN/DS/W/74 
 Page 3 
 
 
– "The legitimate expectations of the WTO Members are reflected in the language of 
the WTO Agreement itself.  The duty of a treaty interp reter is to examine the words of 
the treaty to determine the intentions of the parties.  This should be done in 
accordance with the principles of treaty inte rpretation set out in Articles 31 and 32 of 
the Vienna Convention .  But these principles of interpretation neither require nor 
condone the imputation into a treaty of words that are not there or the importation 
into a treaty of concepts that were not intended.1   
  – "It is not the task of either pane ls 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 am end the covered agreem ents or to adopt 
such interpretations.  Determining what the rights and obligations under the covered 
agreements ought to be is not the responsib ility of panels and the Appellate Body; it 
is clearly the responsibility solely of the Members of the WTO.
2  
 
• What is the significance of the fact that the c overed agreements are the result of negotiations 
among sovereign nations and auto nomous customs territories?   
 
– Should the interpretive approach toward a covered agreement be the same as that for 
domestic regulation or legislation? 
 
– What significance should attach to the fact that some provisions of the covered 
agreements are imprecise and susceptible to more than one interpretation? 
 
• Where an agreement is silent on an issue, is it appropriate for a panel or  the Appellate Body to 
"fill in the gap" in the agreement text? 
 
Measure under review  
 
• The Appellate Body has found that the "matter" referred to dispute settlement in the standard 
terms of reference under Article 7 of the DSU consists of the particular "measure" challenged 
together with the claims concerning that measure3 
 
• Consider the situation where one party claims another Member's measure does x, and that x is 
inconsistent with a provision of a covered agre ement, but the responding Member claims that 
its measure does not do x.   
 
– Is there a proper order of analysis in this situation?   
 
– Does it matter if the panel begins with the question of what the measure does?   
 
– Is it appropriate for a panel or the Appe llate Body to make findings concerning the 
scope of a provision of a covered agreement ot her than in connection with a particular 
measure? 
 
– Is the question of what the measure doe s a factual question or a legal question? 
 
                                                      
1 See Appellate Body Report, India – Patent Protection for Pharmaceutical and Agricultural Chemical 
Products , WT/DS50/AB/R, adopted 16 January 1998, para. 45. 
2 See Appellate Body Report, United States - Import Measures on Certain Products from the European 
Communities , WT/DS165/AB/R, adopted 10 January 2001, para. 92. 
3 E.g., Guatemala – Anti-Dumpin g Investigation Regarding Portland Cement from Mexico , 
WT/DS60/AB/R, adopted 25 November 1998, para. 72. TN/DS/W/74 
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• The Appellate Body has recently stated that "i nstruments of a Member containing rules or 
norms could  constitute a ‘measure'
4 for purposes of a dispute settlement challenge.  It may be 
useful for Members to provide greater clar ity of when an "instrument" in fact is a "measure."  
For example:   
 
– Under what circumstances is something an "instrument"?  For example, does it matter 
what legal status it may have under a Member's domestic legal system?   
 
– Under what circumstances does an instrument "contain rules or norms"?   
 
– Under what circumstances is an instrument a "measure"? 
 
• What significance should attach to whether a measure mandates particular action versus 
provides authorities with discretion that could be  exercised in a manner consistent with the 
covered agreements? 
  
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4 United States - Corrosion Resistant Steel Sunset Review , para. 82 (emphasis added).