Closing Statement by Sir Ronald Michael Sanders
Chief Foreign Affairs Representative of Antigua and Barbuda
To
First Meeting of the Panel at the World Trade Organisation (WTO)
In Dispute: US-Gambling WT/DS 285
on
11th December 2003

Mr Chairman, Members of the Panel

First, may I say on behalf of the Antigua and Barbuda delegation that we are grateful to the entire Panel for the interaction which we enjoyed with you yesterday. We found that interaction enormously beneficial.

The questions asked by the Panel and the answers they evoked sharpened both the issues and the focus of this case.

The entire process underlined the crucial importance of an independent and thoughtful Panel in the settlement of disputes between members of the World Trade Organisation.

Mr Chairman, Antigua and Barbuda will confine our brief closing remarks to three main issues.

The first concerns the status of the scheduling guidelines and W/120 under international law. We hold to the view that these are part of the context of the GATS and schedules under the GATS within the meaning of Article 31, paragraph 2 of the Vienna Convention. These two instruments are particularly important elements of that context because they set a standard of communication that enables Members to understand each other’s schedules.

Our only further comment on this matter would simply be to repeat the observation we made in our opening statement yesterday that, during the negotiations in the Uruguay Round, the United States itself explicitly stated that “except where specifically noted, the scope of the sectoral commitments of the United States corresponds to the sectoral coverage in [W/120]”. And, of course, W/120 incorporates the CPC.

The second matter on which we will comment concerns whether or not there is a total prohibition on the cross-border supply of gambling and betting services to the United States.

From the outset of this entire dispute, we have affirmed this to be the case.

If there was any doubt about this issue, it was definitively settled yesterday by the United States itself. The US explained that it allows only the cross-border supply of services that are ancillary to gambling and betting services. The US explanation left us in no doubt that the services, which are the subject of this dispute, are totally prohibited under US law.

Antigua and Barbuda’s claim is not about ancillary services; it is about the gambling and betting services themselves – and the United States has again confirmed that these are totally prohibited.

Given the extent of the US commitments, this total prohibition is a violation of Article Sixteen. We strongly believe that this, by itself, is sufficient grounds to dispose of the case.

The third issue on which we offer a comment concerns Article Seventeen.

Here a systemic question arises, and it is this: Is it possible for an Article Seventeen issue to arise even when there is no market access at all?

It could be argued that Article Seventeen deals only with discriminatory regulatory treatment after the market has been entered. In the context of the total prohibition of market access by the US which is a violation of Article Sixteen, it could appear, therefore, that arguments under Article Seventeen are superfluous to this case.

However, Antigua is deeply conscious that the text of Article Seventeen allows the conclusion that the Article is violated because a total prohibition of cross-border supply has an adverse effect on conditions of competition. In this connection, and in the absence of a definitive authority on the relationship between Articles Sixteen and Seventeen, Antigua has advanced arguments encompassing both Articles.

Mr Chairman, we see no need to revisit our arguments on Articles Six, one; Six, three; and Eleven, one.

It only remains for us to again thank you, Mr Chairman, and the Panel for the careful and constructive manner in which these proceedings have been carried out.

Thank you.