WORLD TRADE  
ORGANIZATION  WT/DS285/6 
13 January 2005 
 
 
 (05-0113) 
 Original:   English 
 
 
 
UNITED STATES – MEASURES AFFECTING THE CROSS-BORDER SUPPLY 
OF GAMBLING AND BETTING SERVICES 
 
Notification of an Appeal by the United States  
under paragraph 4 of Article 16 of the Understanding on Rules  
and Procedures Governing the Settlement of Disputes (DSU)  
   The following notification, dated 7 January 200 5, from the Delegation of the United States, is 
being circulated to Members. 
 
_______________ 
 
Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate Review, the 
United States hereby notifies its decision to app eal to the Appellate Body certain issues of law 
covered in the Report of the Panel on  United States – Measures Affecting the Cross-Border Supply of 
Gambling and Betting Services (WT/DS285/R) ("Panel Report") and certain legal interpretations 
developed by the Panel in this dispute. 
 
1. The United States seeks review by the Appellate Body of the Panel’s legal conclusion that it 
"should consider" the following laws "in determining whether or not the United States is in violation 
of its obligations" under the General Agreement on Trade in Services ("GATS"),
1 including the 
conclusion that Antigua and Barbuda  ("Antigua") had met its burden of proof that these laws "result 
in a prohibition on the cross-border supply of gambling and betting services"2:  (1) the Wire Act (18 
U.S.C. § 1084); (2) the Travel Act (18 U.S.C. § 1952); (3) the Illegal Gambling Business statute (18 
U.S.C. § 1955); (4) Louisiana : § 14:90.3 of the La. Rev. Stat. Ann.; (5) Massachusetts : § 17A of 
chapter 271 of Mass. Ann. Laws; (6) South Dakota : § 22-25A-8 of the S.D. Codified Laws; 
(7) Utah : § 76-10-1102(b) of the Utah Code; (8) Colorado :  § 18-10-103 of the Colorado Revised 
Statutes; (9) Minnesota : §§ 609.75, Subdivisions 2-3 and 609.75 5(1) of Minn. Stat. Ann; (10) 
New Jersey :  paragraph 2 of N.J. Const. Art. 4, Sec. VII and § 2A:40-1 of the N.J. Code; and (11) 
New York : § 9 of Art. I of N.Y. Const. and § 5-401 of  the N.Y. Gen. Oblig. L.  These conclusions are 
in error and are based on erroneous findings on issues of law and relate d legal interpretations 
regarding a complaining party’s initial burden of proving an alleged breach of Article XVI of the 
GATS, and on the Panel’s failure to carry out its ob ligations under Article 11 of the DSU to make an 
objective assessment of the matter before it.  These errors are contained in, inter alia, 
paragraphs 6.160-6.165, 6.199-6.249, 6.357-6. 421, and 7.1-7.2 of the Panel Report. 
 
2. The United States seeks review by the Appellate  Body of the Panel’s legal conclusion that the 
U.S. schedule to the GATS in cludes specific commitments on gambling and betting services under 
subsector 10.D, "other recreational services (except s porting)."  This conclusion is in error and is 
                                                      
1Panel Report, para. 6.209. 
2Id., para. 6.249. WT/DS285/6 
Page 2  
 
based on erroneous findings on issues of law and related legal interp retations with respect to the 
provisions of the U.S. schedule to the GATS.  These errors are contained in, inter alia, 
paragraphs 6.49-6.138, 6.356, 6.527,  and 7.2-7.4 of the Panel Report. 
 3. The United States seeks review by the Appellate  Body of the Panel’s legal conclusion that the 
United States fails to accord services and service supp liers of Antigua treatment no less favorable than 
that provided for under the terms, limitations and conditions agreed and specified in the U.S. 
schedule, contrary to Article XVI:1 and Article XVI:2 of the GATS.  This conclusion is in error and is 
based on erroneous findings on issues of law and related legal interpretations with respect to 
Article XVI of the GATS.  These erroneous fi ndings include, for example, the following: 
 
(a) The Panel’s findings that any limitation that has the effect of limiting the number of 
service suppliers in a sector or subsector is a limitation in the  form  of numerical 
quotas  within the meaning of Article XVI:2(a) , and that "a measure that is not 
expressed in the form of a numerical quota or economic needs test may still fall 
within the scope of Article XVI:2(a)"
3; 
 
(b) The Panel’s findings that any limitation that has the effect of limiting the number of 
service operations in a sector or subsector is a limitation expressed in the form of 
quotas within the meaning of Article XVI:2(c)  of the GATS, and that a limitation that 
is not "expressed in terms of designated numerical units" may nonetheless fall within 
the scope of Article XVI:2(c); 
 (c) The Panel’s finding that a WTO Member does not respect its GATS market access 
obligations under Article XVI:2 if it limits market access to any part of a scheduled 
sector or subsector, or if it restricts any means of delivery under mode 1 with respect 
to a committed sector; and  
 
(d) The Panel’s findings that the Unite d States maintains such limitations. 
 These errors are contained in, inter alia, paragraphs 6.262-6.421 and 7.2- 7.4 of the Panel Report.  
 
4. The United States seeks review by the Appellate  Body of the Panel’s legal conclusion that the 
Wire Act, the Travel Act (together with the rele vant state laws) and the Illegal Gambling Business 
statute (together with the relevant state laws) are not justified under Articles XI V(a) and XIV(c) of the 
GATS and are inconsistent with the requirements of the chapeau of Article XIV of the GATS.  These 
conclusions are in error and are based on errone ous findings on issues of law and related legal 
interpretations with respect to Article XIV of th e GATS, and on the Panel’s failure to ensure that 
consultations shall be without prejudice to the rights of the United States in dispute settlement proceedings pursuant to Article 4.6 of the DSU.  These errors are contained in, inter alia, 
paragraphs 6.475-6.477, 6.488-6.535, 6.541-6. 608, and 7.2 of the Panel Report.  
 5. The United States seeks review by the Appellate  Body, pursuant to Article 11 of the DSU, of 
the Panel’s finding that "the United States has declin ed Antigua’s invitation to engage in bilateral 
and/or multilateral consulta tions and/or negotiations."
4  The Panel’s disregard for uncontroverted 
evidence in the record, such as the fact that the United States engage d in bilateral consultations with 
Antigua regarding Antigua’s concerns relating to U.S. gambling laws pursuant to Article 4 of the 
DSU, is inconsistent with the Panel’s duty to make  an objective assessment of the matter before it.  
These errors are contained in, inter alia, paragraphs 6.525-6.533 of the Panel Report.  
 
                                                      
3Id., para. 6.332. 
4Id., para. 6.533.  WT/DS285/6 
 Page 3 
 
 
6. The United States seeks review by the Appellate  Body, pursuant to Article 11 of the DSU, of 
the Panel’s finding that "the United States has fail ed to demonstrate that the manner in which it 
enforced its prohibition on the remote supply of gambling and betting services against TVG, Capital 
OTB and Xpressbet.com is consistent with the requ irements of the chapeau" of Article XIV of the 
GATS.5  The Panel’s disregard for uncontroverted evid ence in the record, such  as statistical evidence 
as to the overall treatment of domestic suppliers of remote gambling services as compared to that of 
foreign suppliers, is inconsistent with the Panel’s duty to make an objective assessment of the matter 
before it.  These errors are contained in, inter alia, paragraphs 6.585- 6.589 of the Panel Report.  
 7. The United States seeks review by the Appellate  Body, pursuant to Article 11 of the DSU, of 
the Panel’s finding that "the evidence presented to th e Panel is inconclusive and that the United States 
has not demonstrated that the [Interstate Horseraci ng Act], as amended, do es not permit interstate 
pari-mutuel wagering for horse racing over the te lephone or using other modes of electronic 
communication, including the Internet."
6  The Panel’s disregard for uncontroverted evidence in the 
record, such as the consistent position of the U.S.  Government that the IHA does not provide legal 
authority or protection for remote supply of gambling services and settled U.S. law regarding 
statutory construction, is inconsistent with the Panel’s duty to make an objective assessment of the 
matter before it.  These errors are contained in, inter alia, paragraphs 6.595-6.600 of the Panel Report. 
 8. The United States seeks review by the Appella te Body of the Panel’s legal conclusion that 
"practice," which the Panel defines as "a repeated pattern of similar responses to a set of 
circumstances," can "be considered  as an autonomous measure that can be challenged in and of 
itself."
7  This conclusion is in error and is based on erroneous findings on issues of law and related 
legal interpretations with respect to what constitutes a "measure" under Article 6.2 of the DSU.  These 
errors are contained in, inter alia, paragraphs 6.196-6.198 of the Panel Report. 
 
__________  
                                                      
5Id., para. 6.589. 
6Id., para. 6.600. 
7Panel Report, paras. 6.196-6.197.