In the past, I have argued that because the substance of DSU Article 11 existed in the GATT prior to the creation of the DSU, this provision was not designed to be used with the DSU appeals process. But I was poking around in some DSU negotiating history recently, and I came across this statement by the EC:
It would be understood that appeals would be limited to legal issues and questions of interpretation arising out of panel reports.2 ...
2 There might be one exception to this rule, where a Panel - despite the review process in paragraph 4 - has maintained in its report a factual account which one party considers to be inaccurate and misleading.
You could interpret this statement two different ways. On the one hand, you could say that, by explicitly suggesting that appeals of factual issues were possible, the EC was clearly anticipating that Article 11 would be used in something along the lines of the way it has been. On the other hand, you could say that, because no explicit language was added to Article 17 along the lines of what the EC was suggesting here, and the appeals provisions of the DSU set out in Article 17 do not provide for appeals of factual issues, no such appeals are permitted.
