Measures Affecting the Cross-Border Supply of Gambling and Betting Services (DS 285)

Abstract

The controversial gambling decision of the Appellate Body is mostly important because of examination of the nature of Access under Article XVI GATS, the relationship of that Article to Articles XIV and XVII GATS, and the parallels with Articles III, XI, and XX GATT. Notably, the Appellate Body took the position that an apparant internal regulatory measure, which, nonetheless, had equivalent effect to a zero quota, violated Article XVI GATS. A similar measure in the area of goods would have been examined under Article III GATT and require a showing of discrimination. The facts of the case would have allowed the decision to be based on Article XVII GATS. Most of this paper deals with this issue. We agree with this interpretation of Article XVI by the Appellate Body but are critical of its hermeneutics, suffering from a textual fetish and a policy phobia. Some other elements in the decision are also examined critically.

Is the WTO Passé?

“…US-Upland Cotton has not resulted in compliance, but in a payoff (financial transfer) from United States to Brazil. US-Internet Gambling, discussed by Irwin and Weiler (2008), has not resulted in compliance or implemented retaliation by the tiny island nations of Antigua and Barbuda against the United States. Finally, Bown and Prusa (2011) describe the repeated challenges-fifteen different disputes over ten years-brought by a number of different WTO members to the United States use of "zeroing" in antidumping investigations.…”

Is the WTO passé?

“…That study examines US policies implemented during the GATT and early WTO period (1980)(1981)(1982)(1983)(1984)(1985)(1986)(1987)(1988)(1989)(1990)(1991)(1992)(1993)(1994)(1995)(1996)(1997)(1998) and …nds that bilateral retaliation capacity in ‡uenced how new US import restrictions were implemented along two di¤erent dimensions. First, US industries were less likely to request antidumping import Gambling, discussed by Irwin and Weiler (2008), has not resulted in compliance or implemented retaliation by the tiny island nations of Antigua and Barbuda against the US. Finally, Bown and Prusa (2011) describe the repeated challenges -15 di¤erent disputes over 10 years -brought by a number of di¤erent WTO members to the US use of "zeroing" in antidumping investigations.…”

A Technical Barriers to Trade Agreement for Services?

“…A related factor is that accounting already had moved down the international standards path working through bodies such as the International Federation of Accountants (IFAC), the International Accounting Standards 8 A corollary factor here may be a chilling effect of Appellate Body decisions in specific services-related cases, most notably US-Gambling, where it held that a nondiscriminatory measure aiming to combat internet gambling by under-aged consumers was still illegal, since it had not been properly scheduled in the US schedule of concessions. See Irwin and Weiler (2008) for a discussion on the 'chilling effect' of this decision. Committee (IASC) and the International Organization of Securities Commissions (IOSCO).…”