United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services (WT/DS285): Report of the Appellate Body

Summary

INTRODUCTION

The United States, and Antigua and Barbuda (“Antigua”), each appeals certain issues of law and legal interpretations developed in the Panel Report, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services (the “Panel Report”). The Panel was established to consider a complaint by Antigua concerning certain measures of state and federal authorities that allegedly make it unlawful for suppliers located outside the United States to supply gambling and betting services to consumers within the United States.

Before the Panel, Antigua claimed that certain restrictions imposed by the United States through federal and state laws resulted in a “total prohibition” on the cross-border supply of gambling and betting services from Antigua. Antigua contended that such a “total prohibition” was contrary to obligations of the United States under the General Agreement on Trade in Services (the “GATS”). In particular, Antigua asserted that the GATS Schedule of the United States includes specific commitments on gambling and betting services. Antigua argued that, because the United States made full market access and national treatment commitments (that is, inscribed “None” in the relevant columns of its GATS Schedule), the United States, in maintaining the measures at issue, is acting inconsistently with its obligations under its GATS Schedule, as well as under Articles VI, XI, XVI, and XVII of the GATS.

On 17 October 2003, after receiving Antigua's first written submission to the Panel and before filing its own first written submission, the United States requested the Panel to make certain preliminary rulings, including a ruling that Antigua had failed to make a prima facie case that specific United States measures are inconsistent with the GATS. In particular, the United States argued that a “total prohibition” on the cross-border supply of gambling and betting services could not constitute a “measure”. According to the United States, by challenging such an alleged “total prohibition”, rather than the laws and regulations underlying that prohibition, Antigua had failed to satisfy its burden as the complaining party to “identif[y] … specific measures that are the subject of [its] prima facie case.”