Reprinted from Caribbean Net News
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WTO panel begins hearing on Antigua/US gaming dispute
11-29-2006

GENEVA, Switzerland: A three-man panel established by the World Trade Organisation's Dispute Settlement Body (DSB) began two days of hearing here on Monday on a challenge mounted by Antigua and Barbuda to the unilateral claim by the United States that the latter is in compliance with the DSB's rulings and recommendations on the Internet gaming dispute between the two countries.

"This is just another step in our ongoing efforts to ensure that the United States complies with its obligations under WTO agreements and implement the rulings and recommendations of the DSB," said Antigua and Barbuda's Minister of Finance and the Economy, Dr Errol Cort.

"We believe that, notwithstanding the size of its economy, every WTO member has an obligation to play by the rules and accept and implement the outcomes of an established judicial process all members agreed to for resolving their trade disputes," he added.

The panel hearings are a culmination of a process that began earlier this year when Antigua and Barbuda and the United States informed the DSB that they disagreed as to the existence or consistency of measures taken by the United States to comply with the recommendations and rulings of the DSB.

"This fundamental disagreement led us to request consultations under Article 21.5 of the DSU," said Dr John Ashe, Antigua and Barbuda's Ambassador to the WTO. "This in turn led us to call for the establishment of an Article 21.5 panel and we were pleased that the DSB decided to refer the matter to the original panel, if possible," he added.

Ashe also cited the fact that China, the European Communities and Japan continue to participate as "third parties," and on the second day of the hearings they will be given an opportunity to present their views on the USA's claims of compliance.

"This has truly been an uphill battle, a long slog," said Mark Mendel, Antigua and Barbuda's Legal Adviser.

"It began 1n 2003 when we 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 from Antigua and Barbuda. We made it clear then, as we do now, that the cumulative impact of the US measures is to prevent the supply of gambling and betting services from another WTO Member (in this case Antigua and Barbuda) to the United States on a cross-border basis," he said

Kaye MacDonald, Director of Gaming, concurs and notes that "we have, in the context of the negotiations for a mutually agreed solution to the present dispute, gone to great lengths to find a solution with the US, including calling for a suspension of the panel proceedings on two previous occasions. Only when it became obvious that the US was not interested in arriving at a mutually agreed solution did we call for a resumption of the panel proceedings."

The current chain of events was set in motion by the decision of both parties to appeal the original panel's findings on certain issues of law and legal interpretations to the WTO's Appellate Body. That Body subsequently ruled that, among other things, the original 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, while upholding the finding, albeit for different reasons, that the United States' Schedule includes a commitment to grant full market access in gambling and betting services.

After the adoption of the Appellate Body's report, 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. Both parties could not agree on what constituted "a reasonable time period," and Antigua and Barbuda requested that the reasonable period of time be determined through binding arbitration pursuant to Article 21.3(c) of the Dispute Settlement Unit (DSU).

An Arbitrator was appointed and he determined that the reasonable period of time for implementation was 11 months and 2 weeks from 20 April 2005, expiring on 3 April 2006. At the end of that period, the US issued the unilateral declaration that it needed to do nothing since it was in compliance all along. This led Antigua and Barbuda to request for the establishment of the current panel, which is expected to issue its rulings and recommendations in late January or early February 2007.