5.70 The United States submits that notwithstanding that three adopted panel reports contained recommendations of specific and retroactive remedies, the fact remains that the propriety of such recommendations was an unsettled and contentious matter under the old GATT. Given this fact, and given the fact that the three adopted reports are devoid of any justification for treating anti-dumping and countervailing disputes differently from other disputes, the United States argues that this Panel should not accord these reports any weight in so far as the issue of remedies is concerned. ²⁰⁷ According to the United States, the overwhelming weight of GATT 1947 and WTO practice is that panels should issue general recommendations that call for a Member to bring an offending measure into conformity with its international obligations. This practice has now been codified in Article 19.1 of the DSU. Therefore, the United States submits that if this Panel should find that Guatemala acted inconsistently with its obligations under the ADP Agreement, the Panel should refrain from recommending that Guatemala revoke its anti-dumping duties and refund any duties collected. Instead, the Panel should adhere to Article 19.1 and recommend that Guatemala bring its anti-dumping measure on grey portland cement from Mexico into conformity with Guatemala's obligations under the ADP Agreement. 

VI. Interim Review 

6.1 On 3 April 1998, both Mexico and Guatemala requested the Panel to review, in accordance with Article 15.2 of the DSU, precise aspects of the interim report that had been issued to the parties on 23 March 1998. Guatemala requested that the Panel hold a meeting for that purpose. The Panel met with the parties on 16 April 1998 to hear their arguments concerning the interim report. The Panel carefully reviewed the arguments presented by the parties. 

6.2 In approaching the interim review, the Panel drew guidance from Article 15.2 of the DSU, which states that "a party may submit a written request for the panel to review precise aspects of the interim report prior to circulation of the final report to Members". While the Panel approached the interim review stage with the broadest possible interpretation of Article 15.2 of the DSU, it was of the view that the purpose of the review meeting was not to provide the parties with an opportunity to introduce new legal issues and evidence, or to enter into a debate with the Panel. The purpose of the interim review, in the Panel's view, was to consider specific and particular aspects of the interim report. In this connection, the Panel noted that much of Guatemala's request for interim review consisted of proposed changes to the text of the findings insofar as they refer to Guatemala's arguments, asserting that the Panel "mischaracterized" its arguments. However, Guatemala did not explain in what respect the Panel's language was a "mischaracterization", and did not cite to any of its submissions or oral statements in support of its allegations. In these circumstances, the Panel found it difficult to evaluate the proposed textual changes. Nonetheless, the Panel considered the entire range of arguments presented by both parties in conducting the interim review. 

6.3 Mexico reiterated its previously submitted amendments and additions to the descriptive part of the Report to the extent that such amendments had not been taken into account in the Interim Report. Guatemala repeated suggestions to revise certain aspects of the descriptive part it had previously submitted, and provided sources in support of some of those suggestions. The Panel accepted and introduced in its final report some of these proposed changes. 

6.4 Mexico proposed changes to the text of paragraph 7.5. Mexico asserted that the first sentence did not correspond to what was stated by Mexico, but without any supporting reference to its previous submissions. Mexico made no argument in support of the proposed changes to the remainder of paragraph 7.5. The Panel has made some clarifying changes to the text of the paragraph. 

6.5 Mexico proposed changes to the text of paragraph 7.39, without any supporting argument or references. The Panel did not accept Mexico's request on this point, concluding that the existing text of paragraph 7.39 reflected the Panel's views. 

6.6 Mexico proposed changes to the text of paragraph 8.6. Mexico argued that, taking into account the "general sense" of the Panel's recommendation and its suggestion concerning implementation, certain changes should be made to the text. The Panel did not accept Mexico's request on this point, concluding that the existing text of paragraph 8.6 reflected the Panel's views. 

6.7 Guatemala proposed changes to the text of paragraph 7.2 to reflect the fact that the consultations were concluded before the imposition of the definitive anti-dumping duty. The Panel has modified the paragraph accordingly. 

6.8 Guatemala proposed changes to the text of paragraph 7.3 to reflect that Mexico's request for establishment of a panel did not identify the final definitive anti-dumping measure. As this fact is stated later, in paragraph 7.19 of the report, the Panel did not accept Guatemala's request. 

6.9 Guatemala proposed changes to the text of paragraphs 7.4, 7.6, 7.11, 7.20, and 7.21. These proposals purported to "properly characterize" or "correct mischaracterizations of" Guatemala's arguments, without any stated justification or reference in support of its proposed changes. The Panel accepted in part Guatemala's requests, and has modified these paragraphs accordingly. 

6.10 Guatemala proposed changes to the text of paragraphs 7.30 and 7.37 to delete references to the 26 July 1996 letter sent by telefax from the Guatemalan Ministry of Economy, and footnote 224. Guatemala argued that the letter was not transmitted in the course of Guatemala's domestic anti-dumping procedures, and was not included in the administrative record of the investigation, but was part of informal WTO consultations between Guatemala and Mexico, and therefore should not be considered by the Panel in making its findings. Guatemala's arguments in support of the proposed deletion were made during the course of the panel proceedings and rejected by the Panel, as is reflected in footnote 224. Moreover, as the Panel stated in footnote 224, it did not consider this document determinative, but concluded it would not be appropriate to ignore the existence of a document which was transmitted by Guatemala to Mexico during the course of the anti-dumping investigation by one of the Guatemalan Ministry employees conducting the investigation, and which was submitted to the Panel during its proceedings. Therefore, the Panel did not accept Guatemala's request on this point. 

6.11 Guatemala proposed changes to the text of paragraph 7.40. Guatemala argues that it provided the Panel with evidence that any delay in providing notice under Article 5.5 did not have any effect on the course of the investigation, and that this evidence was submitted to rebut the presumption of nullification and impairment under Article 3.8 of the DSU. Guatemala did not refer to Article 3.8 of the DSU in any of its submissions, and while it did assert that any delay in notification had no effect on the investigation, this assertion was made only in the context of its argument on the issue of harmless error. The Panel considered that Guatemala did not argue in a clear manner that it had rebutted the presumption of nullification and impairment under Article 3.8 of the DSU during the proceedings, and that it was too late to make this argument at the interim review stage. Accordingly, the Panel did not accept Guatemala's request on this point. 

6.12 Guatemala proposed changes to paragraph 7.47, asserting that the Panel "completely mischaracterizes" Guatemala's position, and "ignores Guatemala's explanation of its position in response to the Panel's question cited in footnote [231]". Guatemala has not provided the Panel with any references to its earlier submissions or oral statements in support of its assertions. With regard to the proposed changes to the first two sentences of this paragraph, the Panel considered that the proposed changes altered Guatemala's position from what was argued previously, and the Panel did not accept the request. With respect to the proposal to delete the last sentence of the paragraph, and the text of footnote 231, the Panel notes that Guatemala's position is set out in its answer to the Panel's question 30, which is quoted in full in footnote 231. The Panel is unaware of any further "explanation" of this response, and Guatemala has cited to none. Consequently, the Panel did not accept Guatemala's request on the latter point.  

6.13 Guatemala proposed changes to paragraph 7.65. The Panel accepted in part Guatemala's request, and has modified the paragraph accordingly.

6.14 Guatemala proposed a change to paragraph 7.68. The Panel accepted Guatemala's request, and has modified the paragraph accordingly. 

VII. Findings 

A. Introduction

7.1 This dispute arises out of the initiation and subsequent conduct by the Guatemalan Ministry of Economy ("the Ministry") of an anti-dumping investigation concerning imports of portland cement from Mexico. On 21 September 1995, Cementos Progreso SA ("Cementos Progreso"), the sole Guatemalan producer of cement, filed a request for initiation of an anti-dumping investigation. A supplementary request was filed on 9 October 1995. On 11 January 1996, the Ministry published a notice of initiation of an anti-dumping investigation regarding allegedly dumped imports of grey portland cement from Cruz Azul of Mexico. The Ministry notified the Government of Mexico of the initiation of the investigation on 22 January 1996. The Ministry requested certain import data from Guatemala's Directorate-General of Customs by letter dated 23 January 1996. On 16 August 1996, Guatemala imposed a provisional anti-dumping duty of 38.72% on imports of type I (PM) grey portland cement from Cruz Azul of Mexico. The provisional duty was imposed on the basis of a preliminary affirmative determination. On 17 January 1997, Guatemala imposed a definitive anti-dumping duty of 89.54% on imports of grey portland cement from Cruz Azul of Mexico.  

7.2 On 15 October 1996, after the imposition of the provisional anti-dumping duty but before the imposition of the definitive anti-dumping duty, Mexico requested consultations with Guatemala under Article 4 of the DSU and Article 17.3 of the ADP Agreement. Consultations were concluded on 9 January 1997, before the imposition of the definitive anti-dumping duty, but the parties failed to reach a mutually satisfactory solution. 

7.3 On 13 February 1997, after the imposition of the definitive anti-dumping duty, Mexico requested the establishment of a panel to examine the consistency of Guatemala's anti-dumping investigation with its obligations under the ADP Agreement. 

B. Preliminary Issues 

1. Whether this dispute is properly before the Panel 

7.4 In its first submission, Guatemala raised a number of preliminary issues which we must consider before proceeding to the substantive elements of this dispute, since they relate to our authority to examine the various substantive claims made by Mexico. Guatemala argues, relying on Articles 1 and 17.4 of the ADP Agreement and Articles 4 (consultations), 6.2 (request for establishment), and 19.1 (recommendations) of the Dispute Settlement Understanding ("DSU"), that a Panel may be established only to examine the consistency with WTO obligations of a particular measure or measures, identified in a request for consultations and in the request for establishment of a panel, and to make recommendations concerning such measure or measures. In a dispute involving anti-dumping, Guatemala argues that the measure alleged to be inconsistent with the ADP Agreement must be either a final anti-dumping measure, a price undertaking, or a provisional measure having a significant impact within the meaning of Article 17.4 of the ADP Agreement. Guatemala argues that the final anti-dumping measure imposed on imports of cement from Cruz Azul is not before us, because Mexico did not identify that measure in its request for consultations or in its request for establishment of the Panel. The provisional measure imposed by Guatemala, which was identified in the request for consultations and the request for establishment, is argued not to be before us because Mexico did not assert and demonstrate that it had a "significant impact". There is no price undertaking at issue. Guatemala argues that, because none of these three types of identified "measure" is properly before us, we must reject Mexico's complaint. 

7.5 Mexico acknowledges that it has not challenged the final determination per se, and that the consistency of that determination with the ADP Agreement is therefore not before us. However, Mexico asserts that having requested and held consultations concerning specific identified "matters" relating to the initiation of the anti-dumping investigation, the imposition of a provisional measure, and the conduct of the final stage of the investigation by Guatemala, its request for establishment of a panel was proper, and the Panel is therefore required to consider its claims and issue an appropriate recommendation. 

7.6 The question we must decide is whether, in a dispute under the ADP Agreement, we are limited to an examination of the consistency with the ADP Agreement of one of the three specific types of "measure" identified by Guatemala - provisional anti-dumping measure, final anti-dumping measure, or price undertaking, or whether the consistency of particular aspects of the initiation and/or conduct of an anti-dumping investigation with the ADP Agreement may themselves constitute a matter susceptible of examination by a panel. In deciding this question, we must consider the provisions of the ADP Agreement concerning dispute settlement, and assess their relationship to the relevant provisions of the DSU. 

7.7 In considering the meaning to be given to various provisions of the ADP Agreement, we bear in mind that Article 3.2 of the DSU requires panels to interpret "covered agreements", including the ADP Agreement, "in accordance with customary rules of interpretation of public international law". The rules of treaty interpretation set forth in Article 31 of the Vienna Convention on the Law of Treaties ("Vienna Convention"), have "attained the status of a rule of customary or general international law". ²⁰⁸ Article 31.1 of the Vienna Convention provides: 

"A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose". 

Moreover, Article 31.2 of the Vienna Convention expressly defines the context of the treaty to include the text of the treaty. Thus, it is clear to us that the entire text of the ADP Agreement is relevant to a proper interpretation of any particular provision thereof. ²⁰⁹

7.8 Our authority in this dispute is governed by the provisions of the ADP Agreement and the DSU. Article 1.2 of the DSU provides in pertinent part that: 

"The rules and procedures of this Understanding [the DSU] shall apply subject to such special or additional rules and procedures on dispute settlement contained in the covered agreements as are identified in Appendix 2 to this Understanding. To the extent that there is a difference between the rules and procedures of this Understanding and the special or additional rules and procedures set forth in Appendix 2, the special or additional rules and procedures in Appendix 2 shall prevail". 

Appendix 2 identifies Articles 17.4 through 17.7 of the ADP Agreement as among the special or additional rules and procedures referred to in Article 1.2. 

7.9 Thus, to the extent that there is a difference between the DSU and Article 17.4 of the ADP Agreement, Article 17.4 prevails. Article 17.4 provides that: 

"If the Member that requested consultations considers that the consultations pursuant to paragraph 3 have failed to achieve a mutually agreed solution, and if final action has been taken by the administering authorities of the importing Member to levy definitive anti-dumping duties or to accept price undertakings, it may refer the matter to the Dispute Settlement Body ("DSB"). When a provisional measure has a significant impact and the Member that requested consultations considers that the measure was taken contrary to the provisions of paragraph 1 of Article 7, that Member may also refer such matter to the DSB". (emphasis added). 

7.10 Article 17.4 on its face does not provide that a Panel can be sought with respect only to a specific type of identified "measure". It provides that if consultations under Article 17.3 have failed, and if a final action to levy definitive anti-dumping duties has been taken or a price undertaking accepted, the "matter" may be referred to the DSB under Article 17.4. Similarly, if a provisional measure has a significant impact, and is considered to have been taken contrary to Article 7.1 of the ADP Agreement, "such matter" may be referred to the DSB. 

7.11 The question before us thus is what constitutes the "matter" which may be referred to the DSB under Article 17.4. ²¹⁰ Guatemala's position is that the "matter" must relate to the consistency of a "measure" - provisional or final, or price undertaking - with the ADP Agreement. We cannot agree with this restrictive interpretation of the term "matter" in Article 17.4. In our view, the "matter" which may be referred to the DSB is that "matter" with respect to which a Member requested consultations under Article 17.3 of the ADP Agreement. 

7.12 Article 17.3 itself is not limited to consultations with respect to a specific type of measure, but is much broader in scope. It provides that: 

"If any Member considers that any benefit accruing to it, directly or indirectly, under this Agreement is being nullified or impaired, or that the achievement of any objective is being impeded, by another Member or Members, it may, with a view to reaching a mutually satisfactory resolution of the matter, request in writing consultations with the Member or Members in question". (emphasis added). 

The text of Article 17.3 does not on its face require that there be a "measure" about which consultations are requested, but only that there be nullification or impairment of some benefit. ²¹¹ Such nullification or impairment of a benefit could plainly arise in a situation where a procedural obligation under the ADP Agreement is not respected by the investigating authorities of a Member. 

7.13 We recognize that Article 17.3 is not identified as a special or additional rule or procedure on dispute settlement in Appendix 2 of the DSU. However, it is specifically referred to in Article 17.4, which as noted provides that if "the consultations pursuant to paragraph 3 [of Article 17] have failed to achieve a mutually agreed solution..." the matter may be referred to the DSB. In our view, this reference requires that Article 17.3 must be interpreted so as to give effect to the provisions of Article 17.4, which prevail over any inconsistent provisions of the DSU. Thus, if Article 17.3 requires something different from the corresponding Article 4 of the DSU, the provisions of Article 17.3 must prevail, otherwise Article 17.4 would not be given full effect. That is to say, to the extent that Article 17.4 may require different procedures than does the DSU, Article 17.3 must be read so as to give effect to such different procedures. 

7.14 Article 17.3 allows consultations about "matters", without any requirement that a particular type of measure be the subject of consultations. Article 17.4 allows referral to the DSB (that is, a request for establishment of a panel) of any "matter" on which consultations were held under Article 17.3. While Article 17.4 clearly requires that an action to levy definitive anti-dumping duties have been taken, (or a provisional measure having significant impact be in place or a price undertaking have been accepted) before a request for establishment can be made to the DSB, it cannot reasonably be read to mean that the only "matter" that may be referred to the DSB is a challenge to a specific final or provisional measure or price undertaking. 

7.15 Moreover, Article 17.5, which governs the establishment of panels in disputes under the ADP Agreement, does not require that the request for establishment "identify the specific measures at issue", as does its corollary, Article 6 of the DSU. Instead, Article 17.5, which is again a special and additional rule which takes precedence over conflicting provisions of the DSU, provides that: 

"The DSB shall, at the request of the complaining party, establish a panel to examine the matter based upon: 

(i) a written statement of the Member making the request indicating how a benefit accruing to it, directly or indirectly, under this Agreement has been nullified or impaired, or that the achieving of the objectives of the Agreement is being impeded, ...". (emphasis added). 

7.16 This interpretation of the provisions of Article 17 provides for a coherent set of rules for dispute settlement specific to anti-dumping cases, taking account of the peculiarities of challenges to anti-dumping investigations and determinations, that replaces the more general approach of the DSU. The ADP Agreement sets forth a series of procedural and substantive obligations on Members in initiating and conducting investigations and imposing measures. In anti-dumping cases, the matter in dispute may not be the final measure in and of itself (or the provisional measure or any price undertaking), but may rather be an action taken, or not taken, during the course of the investigation. Article 17.3 clearly provides for consultations regarding such concerns. Article 17.4 then establishes when a Panel may be sought with respect to those concerns - after a final action to levy definitive anti-dumping duties has been taken, after the imposition of a provisional measure having significant impact, or after the acceptance of an undertaking - that is, after there is an affirmative determination in the investigation, resulting in an action whose existence has ongoing trade consequences for the exporting Member. ²¹²

7.17 By contrast, if there is a negative determination in the investigation, such that no undertaking is accepted, no provisional measure is imposed, or no final action is taken to levy anti-dumping duties, there are no ongoing trade consequences for the exporting Member as a result of an action by the importing Member. Under Article 17.4, no panel can be requested with respect to the matter about which consultations were held. Again, this is logical in the context of anti-dumping proceedings, since the "matter" about which consultations were held will have become moot in the absence of one of these actions. 

7.18 Thus, we read Article 17.4 as a timing provision, establishing when a panel may be requested, rather than a provision setting forth the appropriate subject of a request for establishment of a panel. In addition to the logic underlying this interpretation, this interpretation also avoids a meaningless and purely formal requirement that a Member seek consultations concerning the final action to levy definitive anti-dumping duties, and wait the requisite time period before requesting establishment of a panel, in those situations where the issues of concern have already been identified and consultations have been held. Of course, if the substance of the final action to levy definitive anti-dumping duties itself is a "matter" concerning the Member, then further or additional consultations would have to be requested and held, before a request for a panel could be made. 

7.19 In this case, in its request for consultations, Mexico raised issues concerning the initiation of the investigation by Guatemala, the provisional measure, and various aspects of the investigative process. Certain of these issues were the subject of consultations under Article 17.3. After the consultations failed to achieve a mutually satisfactory result, and after final action to levy definitive anti-dumping duties was taken by Guatemala, Mexico referred the matter about which consultations had been held to the DSB, requesting the establishment of a Panel with respect to that matter. Mexico acknowledges that the final determination underlying the definitive anti-dumping duty was itself not the subject of the request for consultations, or of the request for establishment of a panel, and thus is not before us per se. Indeed, Mexico indicated at the first hearing that if it wanted to challenge the final determination, it would request consultations regarding it, and request the establishment of a panel to examine that matter. 

7.20 Guatemala relies on the references to "measures" in Articles 4 (consultations), 6.2 (request for establishment), and 19.1 (recommendations) of the DSU in support of its position that the "matter" referred to in Articles 1 and 17.4 must be a specific measure. However, the interpretation advocated by Guatemala would not give effect to the language of Articles 17.4 and 17.5 of the ADP Agreement, and thus would not be consistent with Article 1.2 of the DSU, which establishes that primacy must be given to special and additional rules of procedure identified in Article 1.2 and Appendix 2 of the DSU. In addition, if Guatemala were correct in the view that a measure must be in place before consultations leading to a request for establishment can be held, and that the consultations that were held in this dispute, under Article 17.3, could not support a request for establishment, then the specific provisions of Article 17.4 would be rendered meaningless. An interpretation which renders part of the ADP Agreement meaningless, and particularly a part of the Agreement which is identified as a special and additional rule for dispute settlement taking precedence over the DSU, is contrary to rules of customary or general international law of treaty interpretation and thus should be avoided.  ²¹³

7.21 Guatemala asserts that the "matter" referred to a panel under Article 17.4 of the ADP Agreement must be a measure in order for a panel to be able to issue a recommendation under Article 19.1 of the DSU. Article 19.1 provides, in pertinent part: 

"Where a panel ... concludes that a measure is inconsistent with a covered agreement, it shall recommend that the Member concerned bring the measure into conformity with that agreement". 

7.22 Even assuming that the dispute settlement provisions of the ADP Agreement (Articles 17.3, 17.4, and 17.5 in particular) did not represent a coherent dispute settlement scheme which replaces the more general provisions of the DSU, the DSU's references to "measures" do not require the narrow reading given them by Guatemala. The terms of the DSU and GATT 1994 itself, as well as past GATT practice and evolving WTO practice, support the conclusion that the DSU does not preclude a panel from examining whether a Member's initiation and conduct of an anti-dumping investigation is consistent with its WTO obligations.  

7.23 Article XXIII of GATT 1994 is the core WTO provision governing dispute settlement. Article XXIII of GATT 1994 sets forth the types of causes of action for which WTO dispute settlement is available to Members. Under Article XXIII:1, a Member is entitled to seek dispute settlement where it considers that: 

"any benefit accruing to it directly or indirectly under this Agreement is being nullified or impaired or that the attainment of any objective of the Agreement is being impeded as the result of 

(a) the failure of another Member to carry out its obligations under this Agreement, or 

(b) the application by another Member of any measure, whether or not it conflicts with the provisions of this Agreement, or 

(c) the existence of any other situation, ..." (emphasis added). ²¹⁴

7.24 The question then is whether the references to the term "measure" in various provisions of the DSU should be interpreted as narrowing the rights and causes of action set forth in Article XXIII by limiting the range of alleged violations of the GATT 1994 (and of other WTO Agreements) that could be subject to dispute settlement to those based on specified "measures". There is nothing in the DSU to suggest that the negotiators intended any such narrowing of Members' right to seek dispute settlement. Rather, it seems more likely that the term "measure" should be interpreted broadly in order to give effect to the substantive provisions of the WTO Agreement. To read "measure" narrowly would mean that a variety of violations of obligations which do not involve specified or identifiable measures would be outside the scope of the dispute settlement system. This is not an approach to be taken lightly unless such an intention can be clearly ascertained from the text of the DSU. In our view, no such intention can be drawn from the text of the DSU. ²¹⁵

Continue on to V. Main Arguments of the Parties, Section 7.25

Notes:

207. The United States emphasizes that regardless of whatever precedential value the three adopted reports may have, the DSU indicates that there is no basis for carving out an exception in anti-dumping and countervailing duty disputes in favour of specific or retroactive remedies.

208. United States - Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, 29 April 1996, p. 17.

209. We have also kept in mind that, while adopted panel reports are not binding on subsequent panels, they do "create legitimate expectations among WTO Members, and therefore, should be taken into account where they are relevant to any dispute". Japan - Taxes on Alcoholic Beverages WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, 4 October 1996, pg. 14. Unadopted panel reports, on the other hand, have no legal status in the WTO system, although a panel may find useful guidance in the reasoning of such a report to the extent it is considered relevant. Id. at 14-15.

210. Indeed, Article 17.4 does not refer to a "final measure" at all - it refers to whether "final action has been taken ... to levy definitive anti-dumping duties or accept price undertakings...". The only reference to "measure" in Article 17.4 is the reference to "provisional measures" in the second sentence of that Article.

211. As discussed further below, this language echoes the provisions of Article XXIII of GATT 1994.

212. Thus, the possibility of panel requests on a piecemeal basis, identified by Guatemala and the US as a problem, does not exist, since a Panel can only be sought after these specific triggering events.

213. "One of the corollaries of the 'general rule of interpretation' in the Vienna Convention is that interpretation must give meaning and effect to all the terms of the treaty. An interpreter is not free to adopt a reading that would result in reducing whole clauses or paragraphs of a treaty to redundancy or inutility". United States - Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, 29 April 1996, p. 23.

214. The introductory language of Article XXIII:1 is echoed in Articles 17.3 and 17.5(a) of the ADP Agreement.

215. Indeed, Article 3.2 of the DSU, which provides that "Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements" suggests the contrary - that the DSU must be available to resolve any and all disputes arising under the covered agreements, as otherwise, Members' rights might be diminished.