DS: United States — Measures Affecting the Cross-Border Supply of Gambling and Betting Services

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Key facts

 

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Summary of the dispute to date

The summary below was up-to-date at

Consultations

Complaint by Antigua and Barbuda.

On 21 March 2003, Antigua and Barbuda requested consultations with the US regarding measures applied by central, regional and local authorities in the US which affect the cross-border supply of gambling and betting services. Antigua and Barbuda considered that the cumulative impact of the US measures is to prevent the supply of gambling and betting services from another WTO Member to the United States on a cross-border basis.

According to Antigua and Barbuda, the measures at issue may be inconsistent with the US obligations under the GATS, and in particular Articles II, VI, VIII, XI, XVI and XVII thereof, and the US Schedule of Specific Commitments annexed to the GATS.

On 12 June 2003, Antigua and Barbuda requested the establishment of a panel. At its meeting on 24 June 2003, the DSB deferred the establishment of a panel.

 

Panel and Appellate Body proceedings

Further to a second request by Antigua and Barbuda, the DSB established a panel at its meeting on 21 July 2003. Canada, the EC, Mexico and Chinese Taipei reserved their third-party rights. On 23 July 2003, Japan reserved its third-party rights.

On 15 August 2003, Antigua and Barbuda requested the Director-General to compose the panel. On 25 August 2003, the Director-General composed the panel. On 29 January 2004, the Chairman of the Panel informed the DSB that it would not be possible for the Panel to complete its work in six months because various factors had had an impact on the Panel’s timetable, such as a party’s request for preliminary rulings, the intervention of the holiday season, the heavy agenda of the panelists as well as the complexity of the legal and factual questions which had been raised. The Panel hoped to complete its work by the end of April 2004.

On 25 June 2004, the Chair of the panel informed the DSB that it had agreed to a request from the parties, submitted in the context of the negotiations for a mutually agreed solution to the present dispute, to suspend the panel proceedings, in accordance with Article 12.12 of the DSU, until 23 August 2004. The Chair of the panel informed the DSB on 18 August and 8 October 2004 that the panel had accepted the parties' subsequent requests of 16 August and 6 October 2004 for a continuation of the suspension until 4 October 2004 and until 16 November 2004, respectively. On 5 November 2004, the panel informed the DSB that, further to Antigua's request , to which the United States did not object, the panel would resume its proceedings as from 8 November 2004.

On 10 November 2004, the report of the Panel was circulated to Members. The Panel found that:

• The GATS Schedule of the United States has been interpreted to include specific commitments for gambling and betting services under the sub-sector entitled “Other Recreational Services (except sporting)”;
   
• Three US federal laws (the Wire Act, the Travel Act and the Illegal Gambling Business Act) and the provisions of four US state laws (those of Louisiana, Massachusetts, South Dakota and Utah) on their face, prohibit one, several or all means of delivery included in mode 1 of GATS (i.e. cross-border supply), contrary to the United States’ specific market access commitments for gambling and betting services for mode 1. Therefore, the United States failed to accord services and service suppliers of Antigua treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in the US Schedule, contrary to Article XVI:1 and Article XVI:2 of the GATS (i.e. concerning market access);
   
• Antigua failed to demonstrate that the measures at issue are inconsistent with Articles VI:1 and VI:3 of the GATS (i.e. concerning domestic regulation);
   
• The United States was not able to invoke successfully the GATS exceptions provisions. In this regard, the United States was not able to demonstrate that the Wire Act, the Travel Act and the Illegal Gambling Business Act are “necessary” under Articles XIV(a) and XIV(c) of the GATS (i.e. “exceptions” provisions, including for public morals) and are consistent with the requirements of the chapeau of Article XIV of the GATS;
   
• The Panel decided to exercise judicial economy with respect to Antigua’s claims under Articles XI (i.e. concerning payments and transfers) and XVII (i.e. concerning national treatment) of the GATS.

On 7 January 2005, United States notified its intention to appeal certain issues of law and legal interpretations developed by the Panel. On 19 January 2005, Antigua and Barbuda notified its intention to appeal certain issues of law and legal interpretations developed by the Panel.

On 8 March 2005, the Chairman of the Appellate Body informed the DSB that the Appellate Body would not be able to circulate its Report within the 60-day period due to the time required for completion and translation of the Report, and that it estimated it would be circulated to WTO Members no later than 7 April 2005.

On 7 April 2005, the report of the Appellate Body was circulated. The Appellate Body:

• upheld the Panel’s finding that an alleged “total prohibition” on the cross-border supply of gambling and betting services cannot, in and of itself, constitute a “measure” subject to dispute settlement under the GATS;
    
• found that the Panel should not have ruled on claims advanced by Antigua with respect to eight state laws of the United States, as to which Antigua had not made a prima facie case of inconsistency with the GATS;
    
• upheld the Panel’s finding, albeit for different reasons, that the United States’ Schedule includes a commitment to grant full market access in gambling and betting services. In particular, in the course of its interpretation of the United States’ Schedule, the Appellate Body disagreed with the Panel’s designation of two documents — referred to as W/120 and the 1993 Scheduling Guidelines — as “context” for the interpretation of Members’ Schedules, finding instead that they constitute “preparatory work”;
    
• upheld the Panel’s finding that the United States acts inconsistently with Article XVI:1 and sub-paragraphs (a) and (c) of Article XVI:2 by maintaining certain limitations on market access not specified in its Schedule; and
    
• reversed the Panel’s finding that the United States had not shown that the three federal statutes are “necessary to protect public morals or to maintain public order”, within the meaning of Article XIV(a); found that the United States’ measures are justified under Article XIV(a) of the GATS as measures “necessary to protect public morals or to maintain public order”; and upheld, albeit on a narrower ground, the Panel’s finding that the United States had failed to show that these measures satisfy the conditions of the chapeau of Article XIV.

At its meeting of 20 April 2005, the DSB adopted the Appellate Body report and the Panel report, as modified by the Appellate Body report.

 

Implementation of adopted reports

At the DSB meeting of 19 May 2005, the United States stated its intention to implement the DSB’s recommendations and indicated that it would need a reasonable period of time to do so. As the Antigua and Barbuda and the United States had failed to agree on a reasonable time of period for implementation in accordance with Article 21.3(b) of the DSU, on 6 June 2005, Antigua and Barbuda requested that the reasonable period of time be determined through binding arbitration pursuant to Article 21.3(c) of the DSU.  On 30 June 2005, pursuant to the request from Antigua and Barbuda, the Director-General appointed Dr Claus-Dieter Ehlermann to act as arbitrator under Article 21.3(c) of the DSU.  On 19 August 2005, the Arbitrator circulated his Award to the Members, determining that the reasonable period of time for implementation was 11 months and 2 weeks from 20 April 2005, expiring on 3 April 2006.

 

Compliance proceedings

On 24 May 2006, the parties informed the DSB that, given the disagreement as to the existence or consistency of measures taken by the United States to comply with the recommendations and rulings of the DSB, they had agreed on certain procedures under Articles 21 and 22 of the DSU. On 8 June 2006, Antigua and Barbuda requested consultations under Article 21.5 of the DSU. On 6 July 2006, Antigua and Barbuda requested the establishment of an Article 21.5 panel.  At its meeting on 19 July 2006, the DSB referred the matter to the original panel, if possible.  China, the European Communities and Japan reserved their third party rights.  On 16 August 2006, the Panel was composed.

On 20 December 2006, the Chairman of the Panel informed the DSB that due to the parties' schedulng constraints as well as the time required for the completion and translation of the report into French and Spanish, the Panel would not be able to issue its report within the 90-day period foreseen in Article 21.5 of the DSU. The Panel expects to circulate its report to Members by the end of March 2007.

On 30 March 2007, the Article 21.5 panel report was circulated to Members. The Panel concluded that the United States had failed to comply with the recommendations and rulings of the DSB.

At its meeting on 22 May 2007, the DSB adopted the Article 21.5 panel report.

 

Proceedings under Article 22 of the DSU (remedies)

On 21 June 2007, Antigua and Barbuda requested authorization from the DSB, pursuant to Article 22.2 of the DSU, to suspend the application to the United States of concessions and related obligations of Antigua and Barbuda under the GATS and the TRIPS Agreement. On 23 July 2007, the United States (i) objected to the level of suspension of concessions and obligations proposed by Antigua and Barbuda and (ii) claimed that Antigua and Barbuda's proposal does not follow the principles and procedures set forth in Article 22.3 of the DSU. At its meeting on 24 July 2007, the DSB agreed that the matter had been referred to arbitration as required under Article 22.6 of the DSU. On 21 December 2007, the decision by the Arbitrator was circulated to Members. The Arbitrator determined that the annual level of nullification or impairments of benefits accruing to Antigua is US$21 million and that Antigua may request authorization from the DSB to suspend obligations under the TRIPS Agreement at a level not exceeding US$21 million annually.

At the DSB meeting on 24 April 2012, Dominica read a statement on behalf of Antigua and Barbuda which stated that the United States was not in compliance with the ruling of the panel, the Appellate Body and the compliance panel.  Antigua and Barbuda had formally notified the United States of its desire to seek recourse to the good offices of the Director-General in finding a mediated solution to this dispute.  Antigua and Barbuda requested that this matter remain under the DSB's surveillance.

At the DSB meeting on 28 January 2013, Antigua and Barbuda requested the DSB to authorize the suspension of concessions and obligations to the United States in respect of intellectual property rights. Pursuant to the request by Antigua and Barbuda under Article 22.7 of the DSU, the DSB agreed to grant authorization to suspend the application to the United States of concessions or other obligations consistent with the Decision by the Arbitrator.