Dispute over on-line gambling services in WTO

The brief “report in the Finan­cial Times”:http://news.ft.com/cms/s/33f976e6-338a-11d9-b07e-00000e2511c8.html of the pan­el report dis­guis­es the real inter­est of this case—which seems to be the first WTO dis­pute deal­ing with access to an e-Com­merce mar­ket. There are sev­er­al aspects to the case that war­rant close atten­tion to the Appeal that the USA is cer­tain to launch. # The Pan­el has allowed Antigua to bring a case against the USA with­out pre­cise­ly iden­ti­fy­ing the ‘mea­sure’ at issue: the Pan­el accept­ed the Antiguan com­plaint against what it claimed was a “total pro­hi­bi­tion” of inter­net gam­bling. As the USA point­ed out, such a vague com­plaint would not nor­mal­ly satisi­fy the require­ments of the Dis­putes process. But the Pan­el decid­ed that it was an accept­able descrip­tion of the impact of a host of US Fed­er­al and State reg­u­la­tions and leg­is­la­tion, some of which was iden­ti­fied in the Antiguan com­plaint
# The Pan­el has held the USA account­able for a bound com­mitt­ment to open access to gam­bling mar­kets, although the USA insists that it did not intend to offer such access and did not specif­i­cal­ly iden­ti­fy gam­bling in its sched­ule of GATS con­ces­sions. The Pan­el has found that the rules of treaty inter­pre­ta­tion applied in the WTO dis­putes process (the Vien­na Con­ven­tion on the inter­pre­ta­tion of treaties) com­pels them to agree with Antigua that the ‘ordi­nary mean­ing of the words’ in the U.S. sched­ule, when read in the light of the objc­tives and pur­pose of the con­text in which they are used, does include a com­mitt­ment to open mar­kets for gam­bling ser­vices.
# The Panel’s dis­missed the Unit­ed States argu­ment that it’s bar­ri­ers to inter­net gam­bling were a trade restric­tion jus­ti­fied by the ‘defence of pub­lic morals’. The Pan­el found[1] that the U.S. argu­ment on this point was ‘incon­clu­sive’: in this case, that seems to be a euphemism for unbe­liev­able, giv­en the wide­spread, and long-stand­ing avail­abil­i­ty of inter­net gam­bling in the USA (and else­where) that is offered by U.S. com­pa­nies such as “www.youbet.com”:http://www.youbet.com or https://www.casinoarbi.com/ The Pan­el report is now avail­able for “download”:http://www.wto.org/english/tratop_e/dispu_e/285r_e.pdf from the WTO (about 1.1meg in the PDF ver­sion). “This summary”:http://www.law.duke.edu/journals/dltr/articles/2004dltr0013.html by a grad­u­ate stu­dent at Duke Uni­ver­si­ty pro­vides a brief back­ground to the case. fn1. I find it extra­or­di­nary that the USA offered such a weak defence of this point, los­ing the argu­ment in the Pan­el in pre­cise­ly the same way it had lost a sim­i­lar argu­ment in the Shrimp/Turtle dis­pute.

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