Last week, in a post about a systemic issue involving the calculation of the level of nullification or impairment in an Article 22.6 proceeding, Joost said: "as systemic as this finding is, 22.6 arbitration reports cannot be appealed. Is this, however, not the kind of finding one would want the AB to weigh in on?" In the comments, and kind of half-jokingly, I asked whether the DSU text could perhaps be manipulated interpreted creatively to support an argument that appeals are, in fact, permitted for these arbitrations. Joost shot me down by pointing to Article 22.7's reference to "final" decisions, etc., and I conceded there was probably nowhere to go with this.
But maybe I gave up too quickly. Here is the EU talking about a different Article 22.6 interpretive issue in the same case, related to whether requests for arbitration on the level of suspension are automatically referred to arbitration without DSB action, or whether the DSB needs to act on the request:
The European Union disagrees with the substantive analysis and conclusion of the Arbitration Panel on this point for the reasons set out in our prior communication. We note that it has not had the benefit of appellate review and we doubt that will occur in this particular case. We further take note of the fact that the Arbitration Panel bases its conclusion, in this particular case, on the absence of any disagreement between the parties. At the same time it recognises that this "is a contentious issue among Members"; that Article 22.6 "does not provide clear guidance"; and that "a resolution of this issue by Members would be desirable".
Pending such resolution, either by Members or by the Appellate Body, and given the substantial legal uncertainty thus persisting, for its part the European Union intends to continue the practice used in the past in almost all cases. ...
I don't want to get bogged down in the substance of the issue (about which I have no strong feelings). Rather, the point here is that the EU thinks the Arbitrator got the answer wrong, and implies that the Appellate Body could, in theory, have a say ("it has not had the benefit of appellate review and we doubt that will occur in this particular case"; "Pending such resolution, either by Members or by the Appellate Body"). And note how the EU keeps referring to the "Arbitration Panel," presumably to emphasize that the Arbitrator is really just the original panel (and panel reports can be appealed).
So, does the EU think that Article 22.6 decisions could be appealed? Would it pursue this thought in an Article 22.6 proceeding to which it was a party?