WORLD TRADE  
ORGANIZATION  WT/DS285/17 
12 June 2006 
 
 (06-2816) 
 Original:   English 
  
 
UNITED STATES – MEASURES AFFECTING THE CROSS-BORDER SUPPLY 
OF GAMBLING AND BETTING SERVICES 
 
Recourse to Article 21.5 of the DSU by Antigua and Barbuda
 
 
Request for Consultations  
 
  The following communication, dated 8 June  2006, from the delegation of Antigua and 
Barbuda to the delegation of the United States and to  the Chairman of the Dispute Settlement Body, is 
circulated pursuant to Article 21.5 of the DSU. 
 
_______________ 
 
  Antigua and Barbuda is pleased to submit this re quest for consultations with the United States 
pursuant to paragraph 1 of the "Agreed Procedur es under Article 21 and 22 of the Dispute Settlement 
Understanding Applicable to the WTO Dispute United States – Measures Affecting the Cross-Border 
Supply of Gambling and Betting Services (WT/DS285)." 
 
Background 
 
 On 21 July 2003, the Dispute Settlement Body (the "DSB") of the World Trade Organization (the "WTO") established a panel at the request of  Antigua and Barbuda in this dispute ("DS285"). 
Both the panel and the Appellate Body in DS285 found certain measures of the United States to be 
inconsistent with certain of the obligations of the United States under the WTO's General Agreement 
on Trade in Services (the "GATS").  On 20 April 2005, the DSB adopted the report of the panel, as 
modified by the report of the Appellate Body.  The resulting DSB recommendations and rulings 
include, inter alia , the recommendation that the United States bring the measures found to be 
inconsistent with the GATS into conformity with its obligations under that agreement.
1 
  On 6 June 2005, Antigua and Barbuda communicated a request to the DSB that the 
determination of a reasonable period of time for compliance by the United States with the 
recommendations and rulings of the DSB be the subj ect of binding arbitration, in accordance with 
Article 21.3(c) of the WTO's Understanding on Rules and Procedures Governing the Settlement of 
Disputes  (the "DSU").  
 
 On 19 August 2005, the award of the arbitrator determined that the reasonable period of time 
for the United States to implement the recommend ations and rulings of the DSB in DS285 was 
11 months and two weeks from 20 April 2005.  This  period of time expired on 3 April 2006.   
 
                                                     
 
1 WT/DS285/AB/R, para. 374. WT/DS285/17 
Page 2  
 
   On 10 April 2006 the United States submitted a status report to the DSB regarding 
implementation of the DSB recommendations and rulings.
2  The United States informed the DSB that, 
in its opinion, it was in compliance with the recommendations and rulings of the DSB based on the following statement (the "DOJ Statement") purportedly made by a representative of the United States 
Department of Justice to a subcommittee of  the United States House of Representatives:  
 
"The Department of Justice views the existing criminal statutes as prohibiting the interstate transmission of bets or wage rs, including wagers on horse races.  The 
Department is currently undertaking a ci vil investigation relating to a potential 
violation of law regarding this activity.  We  have previously stated that we do not 
believe that the Interstate Horse Racing Act, 15 U.S.C. §§ 3001-3007, amended the 
existing criminal statutes.   
In view of these circumstances, the Un ited States is in compliance with the 
recommendations and rulings of the DSB in this dispute." 
The United States Has Failed to Comply with th e Recommendations and Rulings of the DSB  
 
 Antigua and Barbuda disagrees that th e United States has complied with the 
recommendations and rulings of the DSB in DS285 a nd believes that the United States remains out of 
compliance with the United States ' obligations under the GATS with respect to the provision of cross-
border gambling and betting services from Antigua and Barbuda to consumers in the United States.  
  No Federal Legislation 
 
 First , Antigua and Barbuda considers that the United States has taken no measures to comply 
with the recommendations and rulings of the DSB.  In DS285, Antigua and Barbuda established the 
existence of three federal statutes which serve to  prohibit companies from Antigua and Barbuda from 
providing cross-border gambling and betting services to  consumers located in the United States in 
violation of the United States' obligations under the GATS.  These three federal statutes are (i) the Wire Act of 1961, 18 U.S.C. §1084 (the "Wire Act"); (ii) the Travel Act, 18 U.S.C. §1952 (the "Travel Act"); and (ii) the Illegal Gaming Busi ness Act, 18 U.S.C. §1955 the ("IGBA").  The DSB 
recommended that the United States bring these three measures in conformity with its obligations 
under the GATS.  
 
 Neither during the reasonable period of time nor to date has the United States introduced, 
much less passed, any legislation that would amend or effect the Wire Act, the Travel Act or the IGBA in such a manner as to make those statut es WTO-consistent.  Furthermore, two bills which 
have been introduced in the current United States' Congress – H.R. 4777 and H.R. 4411 – are 
expressly contrary to the recommendations and ruli ngs of the DSB in DS285, as each would further 
institutionalise the discriminatory effect of the th ree United States statutes.  The United States has 
therefore failed to bring these federal statutes into  conformity with its obligations to Antigua and 
Barbuda under the GATS.   
 No Other Measures  
  Second , as noted above, despite having insisted to the Article 21.3(c) arbitrator that the United 
States would pursue a legislative remedy to bring itself into conformity with the recommendations and rulings of the DSB in DS285, the United Stat es asserted it was in compliance on 10 April 2006 by 
reference to the DOJ Statement.  The DOJ Statemen t is, however, nothing more that a restatement of 
the position taken by the United States during th e course of DS285 that was ultimately found 
                                                     
 
2 WT/DS285/15/Add.1.  WT/DS285/17 
 Page 3 
 
 
  unpersuasive by both the panel and the Appellate Bo dy.  Assuming, arguendo, that a statement by an 
unidentified government employee can constitute a "measure" for purposes of the DSU, Antigua and 
Barbuda does not believe that a simple restatement of a legal position taken by a party to a dispute 
during its regular course can be considered a "mea sure taken to comply with the recommendations 
and rulings" of the DSB within the meaning of Article 21.5 of the DSU.  
 
 The United States Remains Out of Comp liance with its GATS Obligations 
 
 Third , regardless of whether the DOJ Statement constitutes a "measure" for purposes of the 
DSU or whether it can be considered a "measure ta ken to comply" within the meaning of Article 21.5 
of the DSU, the DOJ Statement does not bri ng the United States into compliance with the 
recommendations and rulings of the DSB in DS285.  In this regard Antigua and Barbuda notes that, 
inter alia :  
  (1) As Antigua and Barbuda had observed to both the panel and the Appellate Body, 
there are a number of reasonable alternative measures available to the United States other 
than prohibition to address the concerns of the United States with respect to the provision of 
remote gambling and betting services.  Since th e adoption of the panel and Appellate Body 
reports by the DSB, even more alternatives have become available.  
  (2) Since the adoption of the recommendati ons and rulings of the DSB in DS285, not 
only have there been no prosecutions of or enforcement actions brought against domestic 
remote gambling and betting service providers  operating pursuant to the Interstate 
Horseracing Act, but in fact there has been significant growth in and expansion of domestic remote gambling and betting services generally in the United States.  
 
 (3) The position of the United States as reflect ed in the DOJ Statement is not supported 
by the bulk of United States legal authority.  
 Nonetheless, licensed, regulated providers of cross-border gambling and betting services from 
Antigua and Barbuda to the United States remain su bject to prosecution by United States authorities
3, 
contrary to the obligations of the United States under the GATS.  
 
Request for Consultations  
 
 On 23 May 2006, Antigua and Barbuda a nd the United States concluded an "Agreed 
Procedures under Articles 21 and 22 of the Dispute Settlement Understanding Applicable to the WTO 
Dispute United States – Measures Affecting the Cross-Border Supply of Gambling and Betting 
Services  (WT/DS285)" (the "Agreed Procedures").  
  In light of the Agreed Procedures, and without prejudice to its other rights under the DSU, the GATS and the other WTO agreements with respect to compliance by the United States with the 
recommendations and rulings of the DSB in DS2 85 or otherwise, Antigua and Barbuda hereby 
requests consultations with the United States over th e subject matters raised by this request. As the 
Agreed Procedures stipulate that "[i]f Antigua  and Barbuda deems it appropriate to invoke 
Article 21.5 of the DSU, Antigua and Barbuda will request consultations, which the Parties agree to 
hold within 15 days from the date of circulation of the request,"  Antigua and Barbuda respectfully requests that the delegation of the United Stat es advise the delegation of Antigua and Barbuda 
                                                     
 
3 On 17 May 2006, an indictment was unsealed in which the United States Department of Justice 
indicted a number of companies and individuals, including the former holder of a gambling and betting license 
issued by Antigua and Barbuda, for various alleged violations of United States laws, including the Wire Act, 
simply by the provision of those servi ces to consumers in the United States. WT/DS285/17 
Page 4  
 
  promptly of the possible dates during the next w eek or two on which United States' representatives 
will be available in order to fix a mutually acceptable date and venue for consultations.   
 
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