The Role of Panel and Appellate Body Rulings as Precedent: Suggestions from Thailand

This is from a draft General Council decision communicated to the WTO by Thailand:

E. The precedential effect of previous panel and Appellate Body reports:

16. Under Article 3.2 of the DSU, the role of panels and the Appellate Body 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 the customary rules of interpretation of public international law. Panels and the Appellate Body, in their reports, cannot add to or diminish the rights and obligations of WTO Members under the covered agreements.

17. Similarly, the findings of panels and the Appellate Body are not authoritative interpretations of general application of the covered agreements. Under Article IX: 2 of the Marrakesh Agreement, the exclusive authority to adopt such interpretations is granted to the Ministerial Conference and the General Council. In these circumstances, adopted panel and Appellate Body reports, as such, do not have any binding effect on panels or the Appellate Body in subsequent disputes.

18. It is, nevertheless, recognized that it is useful for parties in panel and Appellate Body proceedings to refer to prior panel and Appellate Body reports in developing their arguments. In considering these arguments, panels (in making their assessment under Article 11 of the DSU) and the Appellate Body should carefully consider the extent to which prior reports are relevant to the issues before them. Panels and the Appellate Body should explain in their reports the extent to which they considered the prior reports to be relevant to the dispute at hand.

Is this language broad enough to satisfy everyone? I don't think it conflicts with the current approach outlined by the Appellate Body, and it doesn't use the "cogent reasons" language that the U.S. objects to.