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 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 “www.xpressbet.com”:http://www.xpressbet.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.
Peter Gallagher is student of piano and photography. He was formerly a senior trade official of the Australian government. For some years after leaving government, he consulted to international organizations, governments and business groups on trade and public policy.
He teaches graduate classes at the University of Adelaide on trade research methods and the role of firms in trade and growth and tweets trade (and other) stuff from @pwgallagher