With respect to a claim that has been made when a matter is referred by the DSB for an Article 21.5 proceeding, Malaysia seems to suggest as well that a panel must re-examine, for WTO-consistency, even those aspects of a new measure that were part of a previous measure that was the subject of a dispute, and were found by the Appellate Body to be WTO - consistent in that dispute, and that remain unchanged as part of the new measure.
　In considering this argument, we examine what the Panel did in this case in fulfilling its task under the DSU. As we have said, the Panel was required to review the new measure in its totality and in its application when examining the matter referred by the DSB for the Article 21.5 proceeding. In this case, the question whether it did or did not fulfil this requirement arises from the treatment by the Panel of a particular part of the new measure that was also part of the original measure in the original proceedings.
　We wish to recall that panel proceedings under Article 21.5 of the DSU are, as the title of Article 21 states, part of the process of the ‘Surveillance of Implementation of Recommendations and Rulings’ of the DSB. This includes Appellate Body Reports. To be sure, the right of WTO Members to have recourse to the DSU, including under Article 21.5, must be respected. Even so, it must also be kept in mind that Article 17.14 of the DSU provides not only that Reports of the Appellate Body ‘shall be’ adopted by the DSB, by consensus, but also that such Reports ‘shall be … unconditionally accepted by the parties to the dispute. …’ Thus, Appellate Body Reports that are adopted by the DSB are, as Article 17.14 provides, ‘… unconditionally accepted by the parties to the dispute’, and, therefore, must be treated by the parties to a particular dispute as a final resolution to that dispute. In this regard, we recall, too, that Article 3.3 of the DSU states that the ‘prompt settlement’ of disputes ‘is essential to the effective functioning of the WTO’.

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