WORLD TRADE  
ORGANIZATION  WT/DS285/ARB 
21 December 2007 
 (07-5704) 
 Original:   English 
  
 
     
UNITED STATES – MEASURES AFFECTING THE CROSS-BORDER 
SUPPLY OF GAMBLING AND BETTING SERVICES 
 
Recourse to Arbitration by the United States  
under Article 22.6 of the DSU 
  
DECISION BY THE ARBITRATOR  
 
 
  
 
 The decision by the Arbitrator on United States – Measures Affecting The Cross-Border Supply Of 
Gambling And Betting Services  is being circulated to all Members, pursuant to the DSU.  The 
decision is being circulated as an unrestricted document from 21 December 2007 pursuant to the 
Procedures for the Circulation and Der estriction of WTO documents (WT/L/452).  WT/DS285/ARB 
 Page i 
 
 
TABLE OF CONTENTS 
Page  
 
I. INTRODUCTION................................................................................................................... ............1  
A. INITIAL PROCEEDINGS ............................................................................................................................1  
B. REQUEST FOR ARBITRATION AND PROCEEDINGS ....................................................................................2  
II. PRELIMINARY ISSUES............................................................................................................. ......2 
A. MANDATE OF THE ARBITRATOR .............................................................................................................2  
1. Mandate in relation to the prop osed level of suspension ..............................................................3  
2. Mandate in relation to the sector(s) and agreement(s) in which suspension is sought .................5  
3. Order of analysi s.............................................................................................................. .............6  
B. BURDEN OF PROOF AND PRESENTATION OF EVIDENCE ...........................................................................6  
C. REQUEST BY THE UNITED STATES FOR AN OPEN HEARING .....................................................................8  
D. REQUEST BY THE EUROPEAN COMMUNITIES FOR THIRD PARTY STATUS ..................................................8  
E. CONSULTATION OF THE INTERNATIONAL MONETARY FUND (IMF)  AND THE EASTERN 
CARIBBEAN CENTRAL BANK (ECCB) .................................................................................................10  
III. ASSESSMENT OF THE PROPOSED  LEVEL OF SUSPENSION.............................................10  
A. MAIN ARGUMENTS OF THE PARTIES .....................................................................................................11  
B. APPROACH OF THE ARBITRATOR .........................................................................................................12  
C. CHOICE OF COUNTERFACTUAL .............................................................................................................13  
1. Assessment of Antigua's pr oposed counterfactual.......................................................................14  
2. Alternative co unterfac tual..................................................................................................... ......20  
3. Separate opinion ............................................................................................................... ..........23  
D. CALCULATION OF THE LEVEL OF NULLIFICATION .................................................................................25  
1. Review of the approach  proposed by  Antigua.............................................................................25  
(a) Description of the approach  proposed by  Antigua .............................................................................25  
(b) Nature of GBGC data, data gathering me thodology and data inconsiste ncies ...................................27  
(i) Arguments by the parties....................................................................................................... ....27 
(ii) Analysis by th e Arbitr ator..................................................................................................... ....28 
(c) Relationship between GBGC remote gambling reve nue data and Antigua's exports of remote 
gambling services to  the United States......................................................................................... ......29  
(i) Arguments by the parties....................................................................................................... ....29 
(ii) Analysis by th e Arbitr ator..................................................................................................... ....30 
(d) Relationship between GBGC remote gambling re venue data and Antigua's reported exports 
and GDP........................................................................................................................ .....................31  
(i) Arguments by the parties....................................................................................................... ....31 
(ii) Analysis by th e Arbitr ator..................................................................................................... ....34 
(e) Absence of direct evidence of revenues of remote gambling operators licensed by Antigua 
and comparison of GBGC remote gambling reve nue data with revenue  figures from other 
sources ........................................................................................................................ .......................35  
(i) Arguments by the parties....................................................................................................... ....35 
(ii) Analysis by th e Arbitr ator..................................................................................................... ....37 
(f) Application of a multiplier to the remote gambling revenue data ......................................................38  
(i) Arguments by the parties....................................................................................................... ....38 
(ii) Analysis by th e Arbitr ator..................................................................................................... ....39 
(g) Point in time, when US  measures began to affect Anti gua's exports of remote gambling 
services to the United States and lo ss of market share to competitors ...............................................39  
(i) Arguments by the parties....................................................................................................... ....39 
(ii) Analysis by th e Arbitr ator..................................................................................................... ....42 
(h) Comparison of actual and counterfactual exports  of Antigua's remote gambling services to 
the United States .............................................................................................................. ..................44  
(i) Arguments by the parties....................................................................................................... ....44 
(ii) Analysis by th e Arbitr ator..................................................................................................... ....44 
(i) Concluding remarks ............................................................................................................. ..............45  
2. Review of the approach propos ed by the Unit ed States ..............................................................45  
(a) Description of the approach pr oposed by the United States...............................................................45  
(b) Antigua's exports of remote gamb ling services on  horsera cing..........................................................46  
(i) Arguments by the parties....................................................................................................... ....46 
(ii) Analysis by th e Arbitr ator..................................................................................................... ....48 WT/DS285/ARB 
Page ii  
 
(c) ECCB/IMF/WTO data on Antigua's services ex ports and alternative revenue estimates...................48  
(i) Arguments by the parties....................................................................................................... ....48 
(ii) Analysis by th e Arbitr ator..................................................................................................... ....50 
(d) Loss of market shar e to competitors............................................................................................ .......51  
(i) Arguments by the parties....................................................................................................... ....51 
(ii) Analysis by th e Arbitr ator..................................................................................................... ....51 
3. Approach of th e Arbitr ator..................................................................................................... .....51  
(a) Antigua's exports of remote gambling services to the United States..................................................52  
(i) GBGC data...................................................................................................................... ..........52  
(ii) Revenues per employee.......................................................................................................... ...53 
(b) Competing supplie rs ............................................................................................................ ..............53  
(c) Gambling on ho rseraci ng ........................................................................................................ ...........54  
(d) Growth in US demand............................................................................................................ ............54  
4. Conclusion..................................................................................................................... ..............55  
IV. PRINCIPLES AND PROCEDURES OF  ARTICLE 22.3 OF THE DSU ....................................55  
A. MAIN ARGUMENTS OF THE PARTIES .....................................................................................................55  
B. OVERALL APPROACH BY THE ARBITRATOR .........................................................................................57  
C. PRELIMINARY OBSERVATIONS .............................................................................................................60  
D. REVIEW OF ANTIGUA 'S DETERMINATION IN RESPECT OF "SAME -SECTOR " SUSPENSION ........................60  
1. The principles and procedur es of Article 22.3(b)........................................................................61  
2. Review of Antigua's determination that is not practicable or effective to suspend 
concessions or other obligati ons in the "same sector"..............................................................63  
(a) Identification of the relevant sector and scope of obligations to be considered .................................63  
(b) Antigua's determination that it is "not practi cable or effective" to suspend concessions or 
other obligations with resp ect to the same sector .............................................................................. .64 
(i) Arguments of the parties ....................................................................................................... ....64 
(ii) Assessment by the Arbitrator ................................................................................................... .65 
(c) Whether Antigua has taken into account the factors identified in subparagraph (d) of 
Article 22.3 ................................................................................................................... .....................67  
(d) Conclu sion ..................................................................................................................... ....................67  
E. REVIEW OF ANTIGUA 'S DETERMINATION IN RESPECT OF "OTHER SECTORS " UNDER THE GATS...........67  
1. Whether suspension of concessions or other obligations is practicable or effective in 
"other sectors" under the GATS ................................................................................................6 8 
(a) Level of suspension and availabili ty of suspension under the GATS.................................................69  
(b) Practicability and effectiveness of  suspension in ot her sect ors ..........................................................70  
(c) Antigua's consideration of the el ements in subpa ragraph (d).............................................................73  
(d) Conclu sion ..................................................................................................................... ....................74  
2. Whether the circumstances  are serious enough ..........................................................................74  
F. OVERALL CONCLUSION ........................................................................................................................75  
V. EQUIVALENCE AND IMPLEMEN TATION OF SUSPENSION OF OBLIGATIONS UNDER 
THE TRIPS AG REEMENT ............................................................................................................ 75 
A. ARGUMENTS OF THE PARTIES ...............................................................................................................75  
B. ANALYSIS BY THE ARBITRATOR ..........................................................................................................77  
VI. AWARD .......................................................................................................................... ...................78  
  WT/DS285/ARB 
 Page iii 
 
 
LIST OF ANNEXES 
 
 Contents Page 
Annex A Working procedures  79 
Annex B Letter from the Arbitrator to the ECCB 81 Annex C Letter from the Arbitrator to the IMF 83 Annex D Letter from the IMF to the Arbitrator 85 
Annex E Tables on the calculations of the level of  
nullification or impairment 87 
 WT/DS285/ARB 
Page iv  
 
TABLE OF CASES CITED IN THIS REPORT 
 
Short Title Full Case Title and Citation 
Argentina – Hides and Leather  Award of the Arbitrator, Argentina – Measures Affecting the Export of Bovine 
Hides and Import of Finished Leather – Arbitration under Article 21.3(c) of the 
DSU , WT/DS155/10, 31 August 2001, DSR 2001:XII, 6013 
Australia – Salmon  Award of the Arbitrator, Australia – Measures Affecting Importation of Salmon  
– Arbitration under Article 21.3(c) of the DSU , WT/DS18/9, 23 February 1999, 
DSR 1999:I, 267 
Brazil – Aircraft  
(Article 22.6 – Brazil)  Decision by the Arbitrators, Brazil – Export Financing Programme for Aircraft  
– Recourse to Arbitration by Brazil under Article 22.6 of the DSU and Article 4.11 of the SCM Agreement , WT/DS46/ARB, 28 August 2000, DSR 2002:I, 19 
Canada – Aircraft Credits and 
Guarantees  
(Article 22.6 – Canada)  Decision by the Arbitrator, Canada – Export Credits and Loan Guarantees for 
Regional Aircraft – Recourse to Arbitrati on by Canada under Article 22.6 of the 
DSU and Article 4.11 of the SCM Agreement , WT/DS222/ARB, 17 February 
2003, DSR 2003:III, 1187 
EC – Bananas III (Ecuador) 
(Article 22.6 – EC)  Decision by the Arbitrators, European Communities – Regime for the 
Importation, Sale and Distribution of Bananas – Recourse to Arbitration by the 
European Communities under Article 22.6 of the DSU , WT/DS27/ARB/ECU, 
24 March 2000, DSR 2000:V, 2237 
EC – Bananas III (US)  
(Article 22.6 – EC)  Decision by the Arbitrators, European Communities – Regime for the 
Importation, Sale and Distribution of Bananas – Recourse to Arbitration by the 
European Communities under Article 22.6 of the DSU , WT/DS27/ARB, 
9 April 1999, DSR 1999:II, 725 
EC – Hormones  Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, 
DSR 1998:I, 135 
EC – Hormones (Canada) 
(Article 22.6 – EC)  Decision by the Arbitrators, European Communities – Measures Concerning 
Meat and Meat Products (Hormones), Original Complaint by Canada – Recourse 
to Arbitration by the European Communities under Article 22.6 of the DSU , 
WT/DS48/ARB, 12 July 1999, DSR 1999:III, 1135 
EC – Hormones (US)  
(Article 22.6 – EC)  Decision by the Arbitrators, European Communities – Measures Concerning 
Meat and Meat Products (Hormones), Original Complaint by the United States 
 – Recourse to Arbitration by the Eur opean Communities under Article 22.6 of the 
DSU , WT/DS26/ARB, 12 July 1999, DSR 1999:III, 1105 
Korea – Alcoholic Beverages  Award of the Arbitrator, Korea – Taxes on Alcoholic Beverages – Arbitration 
under Article 21.3(c) of the DSU , WT/DS75/16, WT/DS84/14, 4 June 1999, 
DSR 1999:II, 937 
US – 1916 Act (EC)  
(Article 22.6 – US) Decision by the Arbitrators, United States – Anti-Dumping Act of 1916, Original 
Complaint by the European Communities – Recourse to Arbitration by the United 
States under Article 22.6 of the DSU , WT/DS136/ARB, 24 February 2004, DSR 
2004:IX, 4269 
US – FSC  (Article 22.6 – US)
  Decision by the Arbitrator, United States – Tax Treatment for "Foreign Sales 
Corporations" – Recourse to Arbitrati on by the United States under Article 22.6 
of the DSU and Article 4.11 of the SCM Agreement , WT/DS108/ARB, 30 August 
2002, DSR 2002:VI, 2517 
US – Gambling Appellate Body Report, United States – Measures Affecting the Cross-Border 
Supply of Gambling and Betting Services , WT/DS285/AB/R and Corr.1, 
adopted 20 April 2005, DSR 2005:XII, 5663  WT/DS285/ARB 
 Page v 
 
 
Short Title Full Case Title and Citation 
US – Gambling Panel Report, United States – Measures Affecting the Cross-Border Supply of 
Gambling and Betting Services , WT/DS285/R, adopted 20 April 2005, as 
modified by Appellate Body Report, WT/DS285/AB/R, DSR 2005:XII, 5797 
US – Gambling  
(Article 21.5 – Antigua  
and Barbuda) Panel Report, 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 , WT/DS285/RW, adopted 22 May 2007 
US – Offset Act  
(Byrd Amendment) (Brazil) 
(Article 22.6 – US) Decision by the Arbitrator, United States – Continued Dumping and Subsidy 
Offset Act of 2000, Original Complaint by Brazil – Recourse to Arbitration by the 
United States under Article 22.6 of the DSU , WT/DS217/ARB/BRA, 31 August 
2004, DSR 2004:IX, 4341 
US – Offset Act  
(Byrd Amendment) (Canada) 
(Article 22.6 – US) Decision by the Arbitrator, United States – Continued Dumping and Subsidy 
Offset Act of 2000, Original Complaint by Canada – Recourse to Arbitration by 
the United States under Article 22.6 of the DSU , WT/DS234/ARB/CAN, 
31 August 2004, DSR 2004:IX, 4425 
US – Offset Act  
(Byrd Amendment) (Chile) 
(Article 22.6 – US) Decision by the Arbitrator, United States – Continued Dumping and Subsidy 
Offset Act of 2000, Original Complaint by Chile – Recourse to Arbitration by the 
United States under Article 22.6 of the DSU , WT/DS217/ARB/CHL, 31 August 
2004, DSR 2004:IX, 4511 
US – Offset Act  
(Byrd Amendment) (EC) 
(Article 22.6 – US) Decision by the Arbitrator, United States – Continued Dumping and Subsidy 
Offset Act of 2000, Original Complaint by the European Communities – Recourse 
to Arbitration by the United States under Article 22.6 of the DSU , 
WT/DS217/ARB/EEC, 31 August 2004, DSR 2004:IX, 4591 
US – Offset Act  
(Byrd Amendment) (India) 
(Article 22.6 – US) Decision by the Arbitrator, United States – Continued Dumping and Subsidy 
Offset Act of 2000, Original Complaint by  India – Recourse to Arbitration by the 
United States under Article 22.6 of the DSU , WT/DS217/ARB/IND, 31 August 
2004, DSR 2004:X, 4691 
US – Offset Act  (Byrd Amendment) (Japan) (Article 22.6 – US) Decision by the Arbitrator, United States – Continued Dumping and Subsidy 
Offset Act of 2000, Original Complaint by  Japan – Recourse to Arbitration by the 
United States under Article 22.6 of the DSU , WT/DS217/ARB/JPN, 31 August 
2004, DSR 2004:X, 4771 
US – Offset Act  
(Byrd Amendment) (Korea) (Article 22.6 – US) Decision by the Arbitrator, United States – Continued Dumping and Subsidy 
Offset Act of 2000, Original Complaint by  Korea – Recourse to Arbitration by the 
United States under Article 22.6 of the DSU , WT/DS217/ARB/KOR, 31 August 
2004, DSR 2004:X,4851 
US – Offset Act  
(Byrd Amendment) (Mexico) (Article 22.6 – US) Decision by the Arbitrator, United States – Continued Dumping and Subsidy 
Offset Act of 2000, Original Complaint by  Mexico – Recourse to Arbitration by 
the United States under Article 22.6 of the DSU , WT/DS234/ARB/MEX, 
31 August 2004, DSR 2004:X,4931 
US – Section 110(5) Copyright 
Act (Article 25.3)  Award of the Arbitrators, United States – Section 110(5) of the US Copyright Act 
– Recourse to Arbitration under Article 25 of the DSU , WT/DS160/ARB25/1, 
9 November 2001, DSR 2001:II, 667 
US – Shrimp  
(Article 21.5 – Malaysia)  Panel Report, United States – Import Prohibition of Certain Shrimp and Shrimp 
Products – Recourse to Article 21.5 of the DSU by Malaysia , WT/DS58/RW, 
adopted 21 November 2001, upheld by Appellate Body Report, WT/DS58/AB/RW, DSR 2001:XIII, 6529 
 
 
 
  WT/DS285/ARB 
 Page 1 
 
 
 I. INTRODUCTION 
A. INITIAL PROCEEDINGS  
1.1 On 20 April 2005, the Dispute Settlement Body (D SB) adopted the report of the Panel in this 
dispute, as modified by the report of the Appellate Body.1    
1.2 The Appellate Body inter alia upheld the original panel's finding that the United States' 
Schedule includes a commitment to grant full ma rket access in gambling and betting services and 
upheld the Panel's finding that the United States ac ts inconsistently with Article XVI:1 and sub-
paragraphs (a) and (c) of Article XVI:2 by ma intaining certain limitations on market access not 
specified in its Schedule.  The Appellate Body reve rsed the Panel's finding that the United States had 
not shown that the three federal statutes are "necess ary to protect public morals or to maintain public 
order", within the meaning of Article XIV(a).  Th e Appellate Body modified the conclusion of the 
panel with respect to Article XIV as a whole and found, instead, "that the United States has 
demonstrated that the Wire Act, the Travel Act,  and the Illegal Gambling Business Act are measures 
'necessary to protect public morals or maintain public order', in accordance with paragraph (a) of 
Article XIV, but that the United States has not show n, in the light of the In terstate Horseracing Act, 
that the prohibitions embodied in those measures are applied to both foreign and domestic service 
suppliers of remote betting services for horse racing and, therefore, has not established that these 
measures satisfy the requirements of the chapeau".2   
1.3 On 19 August 2005, an arbitrator established unde r Article 21.3(c) of the DSU determined 
that the "reasonable period of time" for the Un ited States to implement the recommendations and 
rulings of the DSB in this dispute was 11 months and 2 weeks from the date of adoption of the Panel 
and Appellate Body Reports by the DSB.  The United States was consequently awarded until 3 
April 2006 to bring its measures into conformity with its obligations under the GATS.3 
1.4 On 8 June 2006, Antigua and Barbuda (hereafter "Antigua") requested consultations with the 
United States under Article 21.5 of the DSU.4  On 6 July 2006, Antigua requested the establishment 
of a panel under Article 21.5 of the DSU.5  At its meeting on 19 July 2006, the DSB referred the 
matter to the original panel, if possible.  The re port of the Article 21.5 compliance panel was adopted 
on 25 May 2007.  The compliance panel found that th e United States had failed to comply with the 
recommendations and rulings of the DSB in this dispute.   
1.5 On 21 June 2007, Antigua requested authorization from the DSB6, under Article 22.2 of the 
DSU, to suspend the application to the United States of concessions and related obligations of 
Antigua under the General Agreement on Trade in Services  (the "GATS" and the Agreement on 
Trade-Related Aspects of Intellectual Property Rights  (the "TRIPS Agreement") amounting to an 
annual value of US$3.443 billion. 
                                                      
1 Report of the Appellate Body on United States – Measures Affecting the Cross-Border Supply of 
Gambling and Betting Services (WT/DS285/AB/R), (hereafter  the "Appellate Body Report") and Report of the 
Panel on United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services  
(WT/DS285/R) (hereafter the "Panel Report").   
2 Report of the Appellate Body, para. 373. 
3 WT/DS285/13. 
4 WT/DS285/17. 
5 WT/DS285/18. 
6 WT/DS285/22. WT/DS285/ARB 
Page 2  
 
 B. R
EQUEST FOR ARBITRATION AND PROCEEDINGS  
1.6 On 23 July 2007, the United States objected to the level of suspension proposed by Antigua 
and Barbuda pursuant to Article 22.6 of the DSU and claimed that Antigua had not followed the 
principles and procedures of Article 22.3 of the DSU in its request.7  At its meeting of 24 July 2007, 
the DSB agreed that the matter ra ised by the United States had been referred to arbitration.   
1.7 The arbitration was undertaken by the original panelists of the Article 21.5 compliance panel 
as follows: 
 Chairperson: Mr Lars Anell 
  Members: Mr Mathias Francke 
   Mr Virachai Plasai 
 1.8 An organizational meeting was held on 7 August 2007 to discuss proposed working 
procedures and the timetable for the proceedings.    At that meeting, both parties requested, inter alia , 
additional time for the preparation of their communica tions to the Arbitrator.  The final timetable and 
working procedures adopted by the Arbitrator were  transmitted to the parties on 22 August 2007 (see 
the text of the Working Procedures in Annex 1).  
1.9 In accordance with the timetable adopted by the Arbitrator, Antigua presented a 
communication concerning the methodology for cal culating the proposed level of suspension 
("Methodology Paper") on 31 August 2007, and th e United States and Antigua submitted written 
submissions to the Arbitrator on 19 September and 4 October 2007 respectively.  The Arbitrator met 
with the parties on 18 October 2007.   After the meeti ng, the Arbitrator posed questions to the parties, 
to which the parties provided written responses on 2 November 2007.  Both parties were further 
provided with an opportunity to comment in writing on the responses of the other party to the questions of the Arbitrator.  The decision of the Arbitrator was circulated on 21 December 2007.  
II. PRELIMINARY ISSUES 
A. M
ANDATE OF THE ARBITRATOR  
2.1 Article 22.7 of the DSU provides that: 
"The arbitrator1 acting pursuant to paragraph 6 sh all not examine the nature of the 
concessions or other obligations to be su spended but shall determine whether the 
level of such suspension is equivalent to th e level of nullification or impairment.  The 
arbitrator may also determine if the pr oposed suspension of concessions or other 
obligations is allowed under the covered ag reement.  However, if the matter referred 
to arbitration includes a claim that th e principles and procedures set forth in 
paragraph 3 have not been followed, the arb itrator shall examine that claim.  In the 
event the arbitrator determines that tho se principles and procedures have not been 
followed, the complaining party shall apply them consistent with paragraph 3."   
  1 The expression "arbitrator" shall be interpreted as referring e ither to an individual or a group or to the members of 
the original panel when serving in the capacity of arbitrator.    
2.2 In this proceeding, the United States challenges two distinct asp ects of the request by Antigua 
for the suspension of certain obligations under the c overed agreements.  First, it challenges the level 
of suspension that Antigua seeks an authorization fo r  (i.e. the figure of US$3.443  billion as the level 
                                                      
7 WT/DS285/23.  WT/DS285/ARB 
 Page 3 
 
 
 of nullification or impairment of benefits accrui ng to Antigua).  Secondly, the United States also 
challenges the choice of the sectors and agreement in  which Antigua is proposing to carry out the 
suspension (i.e. certain obligations under the GATS and under the TRIPS Agreement).  The Arbitrator 
therefore has two distinct determinations to make in these proceedings. 
1. Mandate in relation to the proposed level of suspension 
2.3 Antigua has requested an authorization to su spend the application to the United States of 
concessions and related obligations  of Antigua under the GATS and the TRIPS Agreement, in an 
amount of an "annual value of US$3.443  billion" , which it considers to "match the level of 
nullification or impairment of benefits accruing to Antigua and Barbuda".  The United States, 
however, has objected to the level of suspension of concessions and other obligations proposed.  
2.4 Article 22.4 of the DSU provides that "[t]he le vel of the suspension of concessions or other 
obligations authorized by the DSB shall be equivale nt to the level of nullification or impairment".  
Article 22.6 further provides that "if the Member  concerned objects to the level of suspension 
proposed ..., the matter shall be referred to arbitration". 
2.5 As noted above, Article 22.7 provides that "[t] he arbitrator acting pursuant to paragraph 6 
(…) shall determine whether the level of such suspen sion is equivalent to the level of nullification or 
impairment (..)".8   The DSU provides no further detail how exactly such equivalence might be 
established.  Some guidance is provided, however, by previous arbitral decisions in which such 
assessments were carried out further to a recour se to arbitration under Article 22.6 of he DSU.9   
2.6 As a general matter, as was observed by the arbitrator in US – 1916 Act (EC)(Article 22.6 – 
US), 
the mandate of the arbitrators is to dete rmine whether the level of suspension of 
concessions or other obligations sought by th e complaining party is equivalent to the 
level of nullification or impairment sustai ned by the complaining party as a result of 
the failure of the responding party to br ing its WTO-inconsistent measures into 
compliance.10 
2.7 In approaching this task, we note, as othe r arbitrators have, that, while the purpose of 
suspension of concessions or other obligations  under the covered agreements as foreseen in 
Article 22.1 of the DSU is to "induce compliance"  by the Member concerned with its obligations 
under the covered agreements, this does not mean that such suspension may be authorized beyond 
                                                      
8 See WT/DS27/ARB, para. 4.1 and WT/DS26/ARB para. 3. 
9 EC – Bananas III (Ecuador) (Article 22.6 – EC ), EC – Bananas III (US) (Article 22.6 – EC)  (requests 
by the US and by Ecuador); EC – Hormones (Canada) (Article 22.6 – EC) EC – Hormones (US) (Article 22.6 – 
EC) (requests by Canada and the US); US – 1916 Act (EC) (Article 22.6 – US) (request by the EC); US – Offset 
Act (Byrd Amendment) (Article 22.6 – US) (requests by Brazil, Canada, Chile, EC, India, Japan, Korea and 
Mexico).  Also relevant as an example of determination of level of nullification or im pairment is an arbitration 
that took place under Artic le 25 of the DSU in the US – Section 110(5) Copyright Act (Article 25) .  We note that 
there have also been several arbitra tions under Article 22.6 of the DSU in cases involving export subsidies, for 
which the SCM Agreement provides a distinct legal standard for the determination of the level of 
countermeasures.   In those cases, th e arbitrators were required to determine, under Article 4.11 of the SCM 
Agreement, "whether the countermeas ures [proposed by the complaining Member] are appropriate".  Those 
cases are therefore not directly relevant  for the purposes of determining the Arbitrator's mandate in relation to a 
determination of "equivalence" under Articles 22.6 and 22.7.   Nonetheless, we do not exclude that some aspects of those decisions may be relevant to our determinations.   
10 US – 1916 Act (EC) (Article 22.6 – US) , Decision by the arbitrators, para. 4.5. WT/DS285/ARB 
Page 4  
 
 what is "equivalent" to the level of nullification of impairment.
11   Rather, in setting out the 
requirement that suspension be "equivalent" to the le vel of nullification or impairment, Article 22.4 of 
the DSU requires a degree of "correspondence or identity"12 between the level of the suspension to be 
authorized and the level of the nullifi cation or impairment of benefits.   
2.8 This means that it is necessary to determine what  this level of nullification or impairment of 
benefits is, in order to compare it to the requested level of suspension.13  Further, past arbitrators have 
also considered that, if they determined that th e proposed level is not equivalent to the level of 
nullification or impairment as required by the DSU, th en it was also their duty to estimate the level of 
suspension that they considered to be equivalent  to the impairment suffered, with a view to 
contributing to the objective of prompt and po sitive settlement of disputes embodied in the DSU.14  
This is also what the United States is aski ng the Arbitrator to do in this dispute. 
2.9 In light of these elements, we understand our ma ndate in relation to Antigua's proposed level 
of suspension to require us to determine whethe r the annual amount of US$3.443  billion proposed by 
Antigua is equivalent to the leve l of nullification or impairment of  benefits accruing to Antigua under 
the GATS as a result of the failure of the United States to bring its GATS-inconsistent measures into 
conformity with its obligations.  If we find that it is  not, then we will need to determine what the level 
of such nullification or impairment is.   
2.10 We are also mindful that Article 22.7 of the DSU provides that the Arbitrator "shall not 
examine the nature of the concessions or other oblig ations to be suspended".  Our analysis will, 
accordingly, be limited to an examination of the level of the proposed suspension, and will not extend 
to a consideration of the nature of the concessions or other obligations proposed for suspension.    
2.11 We note that the United States has also requested  us to require Antigua to indicate how it will 
ensure that any suspension of concessions does not exceed the level of nullification and impairment 
found by the Arbitrator.  In the view of the United States, without this information it would be impossible for the Arbitrator to determine the equi valence of the level of suspension of concessions 
with the level of nullification and impair ment, as is required by DSU Article 22.7
15 and the Arbitrator 
should thus not find that Antigua is  allowed to suspend TRIPS concessions.16  In Antigua's view, 
however, the imposition of a requirement for it to specify how it will ensure that the level of 
suspension of concessions does not exceed the level of nullification determined by the Arbitrators 
would not be within the terms of reference of the Arbitrators under Article 22.7 of the DSU.   
2.12 Without prejudice to our views as to whethe r our mandate under Article 22.7 of the DSU 
allows us to impose such a requirement on Antigua , we find it more appropriate to consider this 
matter once we have made the rele vant determinations on the level of suspension and the principles 
and procedures of Article 22.3 of the DSU, especia lly in light of the fact that the United States 
concern appears to relate primarily to the susp ension of obligations under the TRIPS Agreement, a 
matter which will only become pertinent if and when  we determine that Antigua may seek suspension 
of obligations under that Agreement.  We therefor e leave the discussion of our mandate in relation to 
this question for a later stage of our award.17 
                                                      
11 Decision by the arbitrators,  EC – Bananas III (US) (Article 22.6 – EC) , para. 6.3. 
12 Decision by the arbitrators,  EC – Bananas III (US) (Article 22.6 – EC) , para. 4.3. 
13 Decision by the arbitrators,  EC – Bananas III (US) (Article 22.6 – EC) , para. 4.2. 
14 Decision by the arbitrators,  EC – Hormones , para. 12.  See also deci sion by the arbitrators,  EC – 
Bananas III (Ecuador) (Article 22.6 – EC) , (request by Ecuador), paras. 171 – 173 and US – 1916 Act (EC)  
(Article 22.6 – US) , paras. 4.6 – 4.8, which cites the relevant passages of earlier decisions.   
15 US response to question 55. 
16 Para. 28 of US comments on Antigua's answers. 
17 See below section V.B for a complete analysis of this issue.  WT/DS285/ARB 
 Page 5 
 
 
 2. Mandate in relation to the sector(s) and ag reement(s) in which suspension is sought 
2.13 Antigua's request for authorization to suspend concessions or other obligations refers to both 
subparagraph (b) and subpar agraph (c) of Article 22.3, and it explains that "[b]ecause the withdrawal 
of concessions solely under the GATS is at present not practicable or effective, and the circumstances 
are sufficiently serious to justify Antigua and Bar buda exercising its rights under Article 22, Antigua 
and Barbuda requests authorization to suspend c oncessions and other obliga tions under the TRIPS".18   
The United States, in its request for arbitration u nder Article 22.6, claimed that Antigua's proposal 
"does not follow the principles and procedures set forth in paragraph 3 of Article 22 of the DSU".19 
2.14 Article 22.3 sets out, in subparagraphs (a) to (c), certain principles and procedures to be 
followed by a complaining party seeking to susp end concessions or other obligations, as to the 
sector(s) and/or covered agreement in which the suspension can be sought.  Subsequent 
subparagraphs of Article 22.3 further elaborate on the factors that must be taken into account in 
applying these principles and procedures as well as the definition of "sectors" for the purposes of this provision and the procedural requirements to be followed in requesting authorization to suspend 
concessions or other obligations in another sect or or under another covered agreement.    
2.15 Article 22.7, as noted above, provides that "if the matter referred to arbitration includes a 
claim that the principles and procedures set forth in paragraph 3 have not been followed, the arbitrator 
shall examine that claim" and that "[i]n the event the arbitrator determines that those principles and 
procedures have not been followed, the complain ing party shall apply th em consistent with 
paragraph 3".   
2.16 There has only been one dispute to date in wh ich claims relating to the observance of the 
principles and procedures of Article 22.3 of the DSU have been considered ( EC – Bananas III ).
20  In 
that dispute, in determining the scope of their au thority to review the principles and procedures of  
subparagraphs (b) and/or (c) of Article 22.3, the arbitrators consider ed that "the fact that the powers of 
Arbitrators under subparagraphs (b)-(c) are exp licitly provided for in Article 22.6 implies a fortiori  
that the authority of Arbitrators includes the power  to review whether the principles and procedures 
set forth in these subparagraphs have been follo wed by the Member seeking authorization for 
suspension".21     
2.17 In this instance, Antigua's request, as noted above, refers both to s ubparagraph (b) and to 
subparagraph (c) of Article 22.3.  Antigua request ed an authorization to suspend obligations both 
under the GATS and under the TRIPS Agreement.  To the extent that it sought to retaliate under the 
GATS, it sought to do so in a different sector from th at in which the violation was found.   In addition, 
Antigua sought an authorization to suspend certain  obligations under the TRIPS Agreement.  In a 
subsequent communication, Antigua clarified that it was now seeking an authorization to suspend 
obligations only under the TRIPS Agreement.22   
2.18 Our mandate with respect to Antigua's request  to suspend concessions or other obligations 
under the TRIPS Agreement is therefore to review whether the principles and procedures set forth in 
the various subparagraphs of Article 22.3 of the DSU have been followed by  Antigua, as the Member 
seeking authorization for suspension in this dispute.  
                                                      
18 Recourse by Antigua and Barbuda to Article 22.2 of the DSU, WT/DS285/22, p. 4. 
19 Recourse to Article 22.6 of the DSU by the United States, WT/DS285/23. 
20 Decision of the Arbitrators EC – Bananas III (Ecuador) (Article 22. 6 – EC), EC – Bananas III (US) 
(Article 22.6 – EC)  
21 Decision of the Arbitrator EC – Bananas III (Ecuador) (Article 22.6 – EC) , para. 50. 
22 See Antigua's response to question No. 46 of the Arbitrator. WT/DS285/ARB 
Page 6  
 
 3. Order of analysis 
2.19 As noted above, the DSU provides for specific mandates in respect of the two aspects of the 
matter before us.   To the extent, however, that our determinations in respect of one aspect may have a 
bearing in our determinations in respect of the othe r, we consider it appropriate to examine these two 
aspects in an order that will allow us to fully take  into consideration the relevant elements for each 
determination, and to then make overall conclusions.  Specifically, we  consider it appropriate, in the 
circumstances of this dispute, to examine the issues before us in the following order: 
(a) first, the level of nullification or impairment; 
(b) second, the principles and procedures of Article 22.3 of the DSU, taking into account to 
the extent relevant the level of nullificati on or impairment as previously determined; 
(c) third, the US request in relation to equivalen ce, taking in to account our determination, in 
the preceding section, as to the sectors and/or  covered agreements under which Antigua 
may seek to suspend obligations; 
(d) finally, our conclusions.   
B. B
URDEN OF PROOF AND PRESENTATION OF EVIDENCE  
2.20 Antigua has argued that the burden of proof in Article 22.6 arbitrations is well settled, and 
that it is not for the complaining party to demonstrate that its reque st for suspension of concessions or 
other obligations conforms to the requirements of Ar ticle 22, rather that it is for the responding party 
to establish a prima facie case that the complaining party has not done so.  If the responding party is 
able to establish a prima facie case that the compla ining party has not conformed to the requirements 
of Article 22, then, Antigua argues, the burden shifts to the complaining party to rebut that 
presumption.23   
2.21 In response to a question by the Arbitrator, the United States indicated that it agreed that the 
party referring the matter to arbitration has the in itial burden of showing that the proposed level of 
suspension is not equivalent to the level of nullification or impairment.24   At the same time, the 
United States considers that this burden does not m ean that the allegations and factual assertions of 
Antigua enjoy any presumption of correctness or an y special weight simply because Antigua has put 
them forward.25 
2.22 We note that, although the DSU provides no specific guidance on the allocation of burden of 
proof in arbitral proceedings under Article 22.6 (or i ndeed, in other proceedings), previous arbitrators 
acting pursuant to Article 22.6 of the DSU have  addressed this matter and have consistently 
determined that, as noted by both parties, the burden of proving that the requirements of the DSU 
have not been met rests on the party challenging the proposed level of suspension.26  This was first 
expressed as follows by the arbitrators in EC – Hormones : 
                                                      
23 Written submission of Antigua, paras. 13 and 14. 
24 US response to question No. 1 of the Arbitrator, para. 1. 
25 US response to question No. 1 of the Arbitrator, para. 2. 
26 Decision of the Arbitrators US – 1916 Act (EC) (Article 22.6 – US) ,  decision of the Arbitrators 
para. 3.3; Canada – Aircraft Credits and Guarantees (Article 22.6 – Canada) , paras. 2.5-8;  decision of the 
Arbitrators US – FSC (Article 22.6 – US) , paras. 2.8-11;  decision of the Arbitrators Brazil – Aircraft (Article 22.6 
– Brazil) , para. 2.8; EC – Bananas III (ECU) (Article 22.6 – EC) , paras. 37-41; decision of the arbitrators, EC – 
Hormones (Canada) (Article 22.6 – EC) , EC – Hormones (US) (Article 22.6 – EC)  , para. 9.  WT/DS285/ARB 
 Page 7 
 
 
 "WTO Members, as sovereign entities, can be presumed  to act in conformity with 
their WTO obligations.  A party claiming that a Member has acted inconsistently  with 
WTO rules bears the burden of proving that in consistency.  The act at issue here is 
the Canadian proposal to suspend concessi ons.  The WTO rule in question is Article 
22.4 prescribing that the level of suspension be  equivalent to the level of nullification 
and impairment.  The EC challenges the c onformity of the Canadian proposal with 
the said WTO rule.  It is thus for the EC to prove that the Canadian proposal is 
inconsistent with Article 22.4.  Followi ng well-established WTO jurisprudence, this 
means that it is for the EC to submit argum ents and evidence sufficient to establish a 
prima facie  case or presumption that the level of suspension proposed by Canada is 
not equivalent to the level of nullification and impairment caused by the EC hormone 
ban.  Once the EC has done so, however, it is  for the Canada to submit arguments and 
evidence sufficient to rebut that presump tion.  Should all arguments and evidence 
remain in equipoise, the EC, as the party b earing the original burden of proof, would 
lose."27   
2.23 This means that it is for the United States, in th is dispute, to demonstrate in the first instance 
that the amount in which Antigua seeks to suspend concessions or other obliga tions is not equivalent 
to the level of nullification or impa irment of benefits accruing to it.  
2.24 At the same time, however, we note that the rules on allocation of burden of proof do not 
relieve the parties from their duty to provide informati on to the Arbitrator in these proceedings.  It has 
been generally acknowledged in panel proceedings that it is for each party to bring forward the 
elements to sustain the factual assertions it makes, and that each party has a duty to collaborate in the 
establishment of the facts.  Th ese principles have been applied mutatis mutandis  in arbitral 
proceedings under Article 22.6.  In particular, it ha s been acknowledged that information relating to 
the calculation of the proposed level of suspension is in the hands of the party that has presented the 
proposal.28   
2.25 We agree with these observations and consider , accordingly, that both parties, including 
Antigua, have a duty to collaborate in the establishment of  the relevant facts.  It is in consideration of 
these elements that we requested Antigua to provide a Methodology Paper explaining how it arrived at its proposed level of suspension at  the beginning of these proceedings.   
2.26 With respect to the US claims that Antigua has not followed the principles and procedures of 
Article 22.3 of the DSU, as noted above, only one relevant precedent exists ( EC – Bananas III ).  In 
that dispute, the arbitrator found that the same ru les applied for the allocation of burden of proof, 
namely that it was for the Member challenging the proposal to demonstrate that the principles and 
procedures of Article 22.3 had not been followed.  Specifically, the Arbitrator in that dispute 
                                                     
 
27 EC – Hormones (Canada) (Article 22.6 – EC), para. 9.  
28 Decision of the Arbitrators EC – Hormones (Canada) (Article 22.6 – EC) , EC – Hormones (US) 
(Article 22.6 – EC) , para. 11:  
"The duty that rests on all parties to produce evidence and to collaborate in presenting 
evidence to the arbitrators – an issue to be distinguished from the question of who bears the burden of proof -- is crucial in Article 22 ar bitration proceedings.  The EC is required to 
submit evidence showing that the proposal is not equivalent.  However, at the same time and 
as soon as it can, Canada is required to come forward with evidence explaining how it arrived at its proposal and showing why its proposal is equivalent to the trade impairment it has 
suffered.  Some of the evidence - such as data on trade with third countries, export capabilities 
and affected exporters - may, indeed, be in the sole possession of Canada, being the party that suffered the trade impairment.  This explains why we requested Canada to submit a so-called 
methodology paper." (original footnote omitted). WT/DS285/ARB 
Page 8  
 
 considered that it was "for the European Communiti es to challenge Ecuador's considerations of the 
principles and procedures set forth in Articles 22.3 (b)-(d)" and that "[o]nce the European Communities has shown prima facie that these princi ples and procedures have not been followed, and 
that the factors listed in subparagraph (d) were not  taken into account, however, it [was] for Ecuador 
to rebut such a presumption".
29    
2.27 We agree with this approach and thus find that it is for the United States to demonstrate in the 
first instance that Antigua has not followed the pr inciples of Article 22.3 of the DSU and not taken 
due account of the factors in subparagr aph (d).  At the same time, here again, by the very nature of the 
situation, it is likely that some of the key informa tion relating to the factors to be taken into account 
and how Antigua has considered these factors, is prim arily in the hands of Antigua itself.  Indeed, as 
the Member requesting suspension under another sector  or agreement than that in which a violation 
was found, it was for Antigua to "state the reas ons therefore" under Artic le 22.3 subparagraph (e).30    
2.28 We also note that the Working Procedures adopt ed by the Arbitrator in these proceedings 
provide that "each party shall submit all factual evid ence to the Arbitrator no later than in its written 
submission to the Arbitrator, except with respect to  evidence necessary for the purposes of rebuttal or 
for answers to questions".   
C. REQUEST BY THE UNITED STATES FOR AN OPEN HEARING  
2.29 At the organizational meeting, the United States requested the Arbitrator to open to the public 
its meeting with the parties.   The Arbitrator s ought and received the views of Antigua on this request. 
In a written communication addressed to the parties on 21 August 2007, the Arbitrator addressed this request as follows: 
"The Arbitrator has considered the US requ est to open its meeting with the parties to 
the public.  The Arbitrator first notes the absence of a specific provision in the DSU 
addressing this issue in relation to arbitr al proceedings under Article 22.6.  The 
Arbitrator considers that it has a margin of  discretion to deal, in accordance with due 
process, with specific situations, such as this  one, that may arise in a particular case 
and that are not expressly regulated in the DSU.   At the same time, it considers that it 
should, in exercising this discretion, take due  account of the views of the parties.  In 
this instance, Antigua opposes the opening of the meeting to the public.  In light of 
this, and bearing in mind the object of the proceedings, the Arbitrator has decided not to allow for the opening of its meeting to the public."   
D. 
REQUEST BY THE EUROPEAN COMMUNI TIES FOR THIRD PARTY STATUS  
2.30 On 3 August 2007, the Arbitrator received a communication by the European Communities, 
requesting to be accorded third-party status in these proceedings.    The Arbitrator sought the views of 
both parties on this request, and received these views in writing on 9 August 2007.   
2.31 On 23 August, the Arbitrator addressed th e following communication to the European 
Communities:  
                                                      
29 Decision of the Arbitrators EC – Bananas III (Ecuador),(Article 22.6 – EC) para. 59. 
30 The arbitrators in EC – Bananas III (Ecuador),(Article 22.6 – EC) also recognized this and 
considered that Ecuador : 
"[H]ad to come forward and submit information giving reasons and plausible explanations for 
its initial consideration of the principles and proc edures set forth in Article 22.3 that caused it 
to request authorization under another sector and Agreement than those where violations were 
found" (decision of the arbitrators, para. 60).  WT/DS285/ARB 
 Page 9 
 
 
 "The Arbitrator has taken note of the EC 's letter of 3 August requesting to be 
accorded third party status in this arbitra tion proceeding.  The Arbitrator has sought 
the views of the parties on the EC request and received these views in writing on 9 August 2007.  After careful consideration of the EC request and the parties' views on 
such request, the Arbitrator has decided to  decline the EC request for third-party 
status. 
The Arbitrator first notes the absence of  a specific provision in the DSU on third-
party rights in Article 22.6 arbitral proceed ings.  Like panels, arbitrators acting under 
Article 22.6 have, under the DSU, 'a margin of discretion to deal, always in accordance with due process, with specific situ ations that may arise in a particular 
case and that are not expressly regulated'.
31  At the same time, the Arbitrator 
considers that, in such situations, it should pa y particular attention to the views of the 
parties.  In this instance, there is no ag reement among the parties as to whether the 
EC request should be accepted, and this c onsideration should be given appropriate 
weight.   
The Arbitrator also notes that in arbitral proceedings under Article 22.6 of the DSU to 
date, third party rights have only been granted once.32  This involved very specific 
circumstances, where the two Members being granted third-party status were both complainants and parties to arbitral proceedings under Article 22.6 in disputes 
concerning the same matter, and where the Arbitrator found, in the circumstances of that case, that the determination in one arbitral proceeding may be decisive for the 
determination in the other.
33        
In this case, the EC has argued that its substantial interest in these proceedings 
derives from the fact that this arbitration may, in its view, affect its WTO rights in the context of ongoing procedures under Article XXI:1(b) of the GATS relating to the 
modification of US commitments on 'Other recreational Services'.   
However, the Arbitrator's mandate in these proceedings is defined in Article 22.7 of 
the DSU and is limited to matters arisi ng from Antigua and Barbuda's request for 
suspension of concessions and ot her obligations and the US challenge to this request, 
in accordance with Articles 22.6 and 22.7 of  the DSU.  Specifically, the mandate of 
the Arbitrator includes a determination of whether the level of suspension of 
concessions and other WTO obligations pr oposed by Antigua and Barbuda is 
'equivalent' to the level of nullification or impairment arising from lack of compliance 
by the US with certain DSB recommendations and rulings.  By contrast, proceedings under Article XXI:1(b) of GATS, which arise from an intent to modify or withdraw a scheduled commitment under GATS, involve, in the first instance at least, a negotiation process among Members concerned, 'with a view to reaching agreement 
on any necessary compensatory adjustment'. 
The Arbitrator sees no basis for assuming that its determination unde r Article 22.7 of 
the DSU in respect of Antigua and Bar buda's request to suspend concessions and 
                                                     
 
31 Appellate Body Report on EC – Hormones , footnote 138, in relation to panel proceedings: "The 
DSU, and in particular its Appendix 3, leave panels a margin of discretion to deal , always in accordance with 
due process, with specific situations that may arise in a particular case an d that are not expressly regulated". 
32 In EC – Hormones (Canada) (Article 22.6 – EC) , EC – Hormones (US) (Article 22.6 – EC)   Third-
party rights were also requested, but not granted, in two other instances: Brazil – Aircraft , Award of the 
Arbitrator, paras. 2.4 -2.6; and EC – Bananas III (US) (Article 22.6 – EC) , Award of the Arbitrator, para. 2.8 
33 See the arbitral awards in EC – Hormones (Canada) (Article 22.6 – EC) , EC – Hormones (US) 
(Article 22.6 – EC)  , para. 7. WT/DS285/ARB 
Page 10  
 
 other obligations would be such as to adversel y affect the EC's rights in the context of 
the separate proceeding it is engaged in  with other Members concerned under 
Article XXI:1(b) of the GATS for the modification of US concessions, which has both a distinct legal basis and a distinct object.    
For all the above reasons, the Arbitrator d eclines the EC request to be accorded third-
party status in these proceedings." 
E. C
ONSULTATION OF THE INTERNATIONAL MONETARY FUND (IMF)  AND THE EASTERN 
CARIBBEAN CENTRAL BANK (ECCB) 
2.32 On 19 November 2007, the Arbitrator informed th e parties that, in the light of the parties' 
responses to its questions and because of the need for further clarification of certain factual issues, it 
considered that it would be useful for it to seek  technical information from the IMF and the ECCB 
concerning the exact source and contents of the data  collected by them, which had been referred to in 
these proceedings.  The Arbitrator therefore proposed  to address a request for information to both 
organizations and requested the parties to comment on  the text of draft communications to be sent to 
these two organizations. 
2.33 The United States provided some specific drafti ng suggestions.  Antigua, for its part, admitted 
to "a degree of ambivalence regarding the proposed enquiries".34  On the one hand, Antigua was 
certain that whatever responses th e Arbitrators would get as a result of these enquiries, they would 
support the evidence and claims made by Antigua during the course of this arbitration, but on the other hand, in the view of Antigua, the enquiries c ould also be viewed as reflecting adversely upon the 
veracity or accuracy of fundamentally uncontested ev idence submitted by Antigua in this arbitration, 
and as an effort by the Arbitrators to engage in f act finding on behalf of a litigant that has essentially 
failed to do so itself, despite having many opportunities.   
2.34 The Arbitrator considered Antigua's arguments, in  particular its concern that the Arbitrator 
may be engaging in fact finding "on behalf of " the Un ited States.  While the Ar bitrator agreed that the 
purpose of an expert consultation shou ld not be to substitute for a party's failure to make its case, the 
Arbitrator considers that this is not what it wa s proposing to do in seeking information from the IMF 
and the ECCB.  Rather, the aim of the Arbitrator w as to seek additional clarification of some of the 
factual elements that had been put before it by the parties, to make its determination on the basis of 
the best possible information.    
2.35 In light of these considerations, the Arbitrator  decided to proceed with the consultation.  
Accordingly, it revised the text of the draft communi cations in light of the comments of the parties, 
and addressed requests for information to both th e IMF and the ECCB on 22 November 2007 (see text 
reproduced in Annexes C and B).  A response w as received from the IMF on 14 December 2007 (see 
text reproduced in Annex D).  No response had been received from the ECCB by the time the Arbitrator finalized its work. 
III. ASSESSMENT OF THE PROPOSED LEVEL OF SUSPENSION 
3.1 As noted above in paragraph 1.5, Antigua has requested an authorization to suspend the 
application to the United States of "concessions a nd related obligations" of Antigua under the GATS 
and the TRIPS Agreement, in an amount of an "annual value of US$3. 443  billion", which it considers 
to "match the level of nullification or impairment of benefits accruing to Antigua and Barbuda".  The 
United States, however, has objected to this proposed level of suspension, pursuant to Article 22.6 of 
the DSU.   
                                                     
 
34 Letter to the Arbitrator from Antig ua and Barbuda, 21 November 2007.  WT/DS285/ARB 
 Page 11 
 
 
 A. MAIN ARGUMENTS OF THE PARTIES  
3.2 In its Methodology Paper, Antigua presented th ree calculations in support of its proposed 
level of suspension of concessions or other obligati ons, and explained that its calculations were based 
on a counterfactual that assumed that to comply with the recommendations and rulings of the DSB, 
the United States would allow Antiguan operators to provide unrestricted access to cross-border 
remote gambling and betting services to United States consumers.35 Specifically, Antigua indicated 
that it made the following assumptions in relation to the counterfactual: 
1. The United States adheres to its GATS commi tments for remote gambling and betting 
services as established in the dispute; 
2. The United States recognizes that Antiguan law governs Antiguan-based remote gaming 
operators serving customers located in the United States;    
3. The United States does not interfere with the electronic transfer of funds between 
customers and Antiguan remote gaming operators;   
4. The United States does not interfere with advertising by Antiguan remote gaming 
operators;  
5. Antiguan remote gaming operators are not compelled to invest significant resources to 
counteract United States measures to restri ct gaming operators from providing remote 
wagering services to United States consumers.36   
 
3.3 The United States "agrees with the basic con cept – as expressed in Antigua's Methodology 
Paper – that the level of nullification and impair ment may be calculated based on a "counterfactual", 
under which the Member concerned is assumed to have adopted measures in compliance with the 
DSB recommendations and rulings".37    
3.4 The United States, however, disputes Antigua's choice of counterfactual.  Specifically, it 
disputes the assumption that the compliant US measure  would be a measure that allowed for "all types 
of cross-border gambling services", for which it considers that Antigua has no legal or factual basis.38  
In the view of the United States, the Arbitrator  needs to take into account "the possibility of 
compliance under different approaches, not just the approach preferred by Antigua".39 The United 
States submits that the DSB recommendations and rulings are addressed to discriminatory treatment 
of gambling on horseracing, so that the real questi on in the scenario where the United States achieves 
compliance by allowing market access for forei gn suppliers is as follows : "what would be the 
economic effect if the United States were to a dopt measures that allow Antiguan operators (and 
operators of all other WTO Members) to provide cross-border remote gambling services on 
horseracing?" 
3.5 The United States thus considers that a measure that would open, without discrimination, 
access to remote gambling services in respect of horseracing only would constitute compliance with the rulings.   The United States identifies this as the pertinent scenario, if the assumption is to be that 
                                                     
 
35 Antigua's Methodology Paper, para. 3. 
36 Antigua's Methodology Paper, p. 8. 
37 US written submission, para. 14. 
38 US written submission, para. 19 
39 US written submission, para. 17. WT/DS285/ARB 
Page 12  
 
 it would allow some access to remote gambling.  In  the United States view, this is the "most likely" 
scenario.   
3.6 The United States also identifies, as a scenario that would in its view be consistent with the 
DSB rulings and recommendations, a situation in which it would ensure that domestic service 
suppliers are also prohibited from supplyi ng remote betting services on horseracing.
40  However, it 
does not suggest that this be the scenario retain ed for the purposes of the counterfactual in these 
proceedings.   
3.7 Antigua considers that the United States miss es the key starting point when it "takes the 
fundamental position in its submission that the nullif ication and impairment to Antigua only extends 
to hypothetical trade in betting on horse racing that might be available to Antiguan operators from 
customers in the United States".41  Antigua analyses the rulings, in particular the role of the 
affirmative defence under Article XIV of GATS and its relationship to market access commitments 
under Article XVI, to conclude that the United St ates should be barred from presenting a completely 
new argument (distinguishing between horseracing and other forms of remote gambling) in the hopes 
of minimizing its exposure to Antigua for havi ng failed to come into compliance with the DSB 
rulings".42   
3.8 Antigua also recalls that the United States bears the burden of proof "to overturn the 
presumptions established by Antigua's Request and the Methodology Paper".43  Antigua further 
considers it "unconscionable" for the United States to  have done nothing to come into compliance in 
the time that it should have, and now ask the arb itrators to determine what may have constituted 
compliance.44  It considers that, in the circumstances of this dispute, where there has been no attempt 
to comply, the only assumption that may be used  by the Arbitrator in assessing the level of 
nullification and impairment is "withdrawal of th e measure" as set out in Article 3.7 of the DSU.45   
3.9 The United States also takes issue with other asp ects of Antigua's methodology, in particular 
the underlying data, which it considers to be "i nherently unreliable" and as providing "no useful 
information in this arbitration".46 
B. APPROACH OF THE ARBITRATOR  
3.10 As noted above, Article 22.7 provides that "[t] he arbitrator acting pursuant to paragraph 6 
(…) shall determine whether the level of such suspen sion is equivalent to the level of nullification or 
impairment (..)".47    
3.11 In this instance, we are therefore required to determine whether the amount of US$3.443  
billion proposed by Antigua is equivalent to the le vel of nullification or impairment of benefits 
accruing to Antigua.  As has been noted by previous  arbitrators, for that purpose, we must first 
determine what the level of nullification or im pairment of benefits accruing to Antigua is.48     
                                                      
40 US written submission, para. 15. 
41 Antigua's written submission, para. 72. 
42 Antigua's written submission, para. 89. 
43 Antigua's written submission, para. 71. 
44 Antigua's written submission, para. 92. 
45 Antigua's written submission, para. 94. 
46 US response to question 1 by the arbitrator, para. 4.  See below section III.D for a detailed analysis of 
data and methodology issues. 
47 See WT/DS27/ARB, para. 4.1 and WT/DS26/ARB para. 3. 
48 See for example  EC – Hormones (Canada) , Decision by the arbitrators, para. 35.  WT/DS285/ARB 
 Page 13 
 
 
 3.12 Antigua's proposed level of suspension is b ased on an assessment of the annual amount of 
trade that it considers that it has lost, as a result of  the maintenance of the inconsistent US measures 
beyond the end of the reasonable period of time for im plementation.  To calculate the level of such 
lost trade, Antigua relies on a counterfactual scenar io intended to reflect what the situation would 
have been, if the United States had complied w ith the DSB recommemdations and rulings.    
3.13 The United States does not disagree with the basic approach adopted by Antigua in 
determining its level of nullificati on or impairment of benefits.  Sp ecifically, the United States agrees 
that the level of nullification and impairment ma y be calculated based on a "counterfactual", under 
which the Member concerned is assumed to have  adopted measures in compliance with the DSB 
recommendations and rulings".49   
3.14 We note that this approach has been applied in prior proceedings under Article 22.6 of the 
DSU.50   We agree that the use of a counterfactual to assess the level of exports that would have 
accrued to Antigua, had the United States complied w ith the rulings, constitutes an appropriate basis 
for assessing the level of nullification or impairment of benefits accruing to An tigua in this dispute 
and, in light of the parties' common view in this respect, we accept it as the basis for our 
determination.  
3.15 Although the parties are in agreement on the su itability of this general approach, the United 
States disagrees both with the counterfactual upon whic h Antigua has based its calculations and with 
the data used by Antigua to then estimate the level of its lost exports under that counterfactual.  The 
threshold issue of the choice of counterfactual ha s a crucial bearing on subsequent steps in the 
determination of the level of nullif ication or impairment of benefits, as it effectively determines the 
basis on which subsequent calculations are to be made .  We will therefore consider this issue first, 
before turning to the actual calcula tion of the level of nullification. 
C. CHOICE OF COUNTERFACTUAL  
3.16 As described above, Antigua has based its cal culation of the level of nullification or 
impairment it has suffered on a counterfactual under which the United States would open to Antiguan 
operators the United States market for remote gambli ng without restriction.  Antigua considers that, 
based on the "full" nature of the commitment made  by the United States in its GATS schedule, as well 
as the findings by the original panel and the Appella te Body that this commitment requires the United 
States to provide market access to all services within  the applicable sector, Antigua has a legitimate 
right to expect that the United States will comply with that commitment.  Antigua further considers 
that it is completely reasonable for it to assume that the United States will observe its obligations 
under the "express language of the GATS that require s it to provide Antiguan service providers with 
full market access to consumers in the United States".51  
3.17 The United States disagrees with the key assumption underlying Antigua's counterfactual, 
namely that the United States would be assumed to have complied with its obligations by allowing  
Antiguan operators to provide unrestricted acc ess to cross-border remote gambling and betting 
services to United States consumers.52  The United States considers that this scenario is 
"extraordinarily unrealistic and thus does not form the basis for a useful counterfactual in this 
arbitration".53  The United States considers this assumption to have no factual or legal basis and 
                                                      
49 US written submission, para. 14. 
50 See in particular EC – Hormones (Canada) , Decision by the Arbitrators, para. 37 and EC – 
Bananas III (United States) , para. 7.1. 
51 Antigua's response to question No. 2 by the Arbitrator. 
52 Antigua's Methodology Paper, para. 3. 
53 US response to questions Nos.3 and 3 bis of the Arbitrator. WT/DS285/ARB 
Page 14  
 
 argues that Antigua's proposed scenario entirely ignores the context of this dispute, including the fact 
that the United States severely restricts, rather than promotes, internet gambling.
54  
3.18 The United States considers that the single most important consideration in the Arbitrator's 
determination with respect to the choice of counterf actual must be the factual context of the dispute, 
as reflected in the prior proceedings and the DS B recommendations and rulings.  The United States 
notes that in this dispute, it has established its  strong public policy and morality rationales for 
restricting remote gambling, and the Appellate Body indeed agreed that the United States had met its 
burden of showing that the US measures were pr ovisionally justified under GATS Article XIV.  The 
United States considers that in these circumstanc es, the only reasonable scenarios for compliance are 
either a complete ban on remote gambling, or the adoption of measures that allow foreign and 
domestic operators to engage in remote gambling on horseracing.55  Specifically, the United States 
considers that the appropriate counterfactual for th e Arbitrator's consideration in these proceedings 
would be to assume a measure that would open, without discrimination, access to remote gambling 
services in respect of horseracing only.    
3.19 We therefore now first examine whether, as the United States asserts, the counterfactual upon 
which Antigua's determination of the level of nulli fication or impairment of its benefits is based 
cannot form the basis for such determination.  If we find that the counterfactual proposed by Antigua 
is not appropriate, we will then n eed to determine what an appropria te alternative counterfactual could 
be.  
1. Assessment of Antigua's proposed counterfactual 
3.20 The US challenge to Antigua's counterfactual ar ises from the fact that it assumes a means of 
achieving compliance with the DSB rulings that is, in  the view of the United States, "extraordinarily 
unrealistic" in this dispute.  In the view of the United States, there is no factual or legal basis for 
Antigua to assume that the United States would co mply with the DSB's recommendations and rulings 
in this dispute by providing unrestricted access to its  remote gambling sector to Antiguan operators.   
3.21 Antigua's counterfactual is based on an assumpti on that the United States, by virtue of its 
specific commitments under the GATS, is required to provide unrestricted access to its remote 
gambling market to Antiguan operators.  Antigua has explained that it is entitled to assume that the 
United States would comply with its obligations by  allowing such access to the United States remote 
gambling market for Antiguan operators.   Antigua finds support for this assumption in particular in 
the nature of the rulings (a violation of a mark et access commitment under Article XVI of GATS), as 
well as in the terms of Article 3.7 of the DSU, wh ich provide that the first objective of the dispute 
settlement system is usually to secure the withdraw al of the measures concerned if these are found to 
be inconsistent with the provisions of  any of the covered agreements.   
3.22 The United States acknowledges that the scenario  proposed by Antigua would constitute a 
means of compliance with the recommendations and rulings of the DSB.56  However, it argues that 
this scenario is "extremely unrealistic".  The Un ited States considers that only benefits that can 
reasonably be expected to accrue to the complaini ng party can form the basis for the calculation of 
nullification or impairment of benefits.  The Unit ed States further considers that the Arbitrator's 
enquiry "is simply what counterfactual – based on the specific facts or circumstances in the dispute 
and the specific DSB recommendations and rulings – would be the most likely form of compliance".57  
                                                      
54 US response to question No. 5 by the Arbitrator, para. 13. 
55 US response to question No. 5 of the Arbitrator, para. 12. 
56 US response to questions 3 and 3 bis of the Arbitrator. 
57 US answer to question 3 quater  of he Arbitrator, para. 10.  WT/DS285/ARB 
 Page 15 
 
 
 3.23 In considering this issue, we first recall that the burden rests upon the United States to 
demonstrate that the level of suspension proposed by Antigua is not equivalent to the level of 
nullification or impairment of benefits it has suffe red as a result of the continued application of the 
inconsistent US measures.  For that purpose, it would not be sufficient, in our view, for the United States to simply identify the existence of alternative possible me ans of compliance, other than that 
envisaged by Antigua in its counterf actual.  Rather, for the United Stat es to succeed in its challenge, it 
must persuade us that the particular scenario identif ied by Antigua as the basis for its counterfactual is 
not such as to accurately reflect the level of nulli fication or impairment of benefits accruing to 
Antigua under the GATS as a result of the continued application by the United States of inconsistent 
measures. 
3.24 We do not disagree with the United States that a WTO Member generally has the discretion to 
determine the means through which it will comply with adverse DSB rulings, provided that such 
means are consistent with the WTO covered agreements.
58  However, this does not, in our view, imply 
that the Member concerned has the freedom to decide, for the purposes of a determination under 
Article 22.7 of the DSU, among a range of potentia l measures that it might have taken in order to 
comply with such rulings, which one should form the basis of the arbitrat or's assessment.  Our 
mandate under Article 22.7 of the DS U is to determine whether the level of suspension proposed by 
Antigua is "equivalent" to the level of nullification or impairment of its benefits.  Our starting point, 
in this determination, must be Antigua's proposed le vel of suspension.   In determining whether this 
proposed level is "equivalent", we must take care to  ensure that the level of suspension is neither 
reduced to a level lower than the level of nullifi cation or impairment of benefits accruing to the 
complaining party, such as to adversely affect that  party's rights, nor exceeds the level of nullification 
or impairment of benefits, such that it would beco me punitive.  This is the key consideration that 
must, in our view, guide our assessment of the US ch allenge to Antigua's choice of counterfactual.   
3.25 Specifically, under the methodology proposed here by  both parties for the estimation of "lost 
exports", the counterfactual (and the assumptions th at it entails as to what would have constituted 
compliance) forms the basis for the calculation of th e benefits accruing to the complaining party that 
have been nullified or impaired.   It is thus impor tant for the counterfactual to reflect the nature and 
scope of such benefits accurately, so that the trade flows that will be assumed to occur under the 
counterfactual can, in turn, provide a reliable basis for an estimation of the level of nullification or 
impairment of such benefits.  
3.26 We do not consider that the proposed counterfact ual must necessarily reflect the "most likely" 
scenario of compliance by the Member concerned. By nature, a counterfactual represents a 
hypothetical scenario and thus there may be, in an y given case, a degree of uncertainty as to what 
exact form compliance might have taken, had it o ccurred.  The Member concerned may have had a 
range of WTO-consistent options at its disposal to choose from to ensure compliance.  It is not for us 
to speculate on what might have been the "most likely" such scenario.    
3.27 Nonetheless, the counterfactual should, in our view, reflect at least a plausible or "reasonable" 
compliance scenario.  A counterfactual that would assume a compliance scenario that leads to an 
implausibly high level of nullification or impairment of benefits would lead to a suspension in excess 
of the level of nullification or impairment actually suffered.  Conversely, a counterfactual that would 
underestimate the level of benefits accruing to th e complaining party would risk leading to an 
                                                      
58 This issue has been addressed in arbitrations unde r Article 21.3(c) for the determination of the RPT.  
See for example Australia – Salmon , Article 21.3(c) arbitration, para. 30.  See also Korea – Alcoholic 
Beverages , Recourse to Article 21.3(c), Decision of th e arbitrator, para. 45: "Choosing the means of 
implementation is, and should be, the prerogative of the implementing Member, as long as the means chosen are 
consistent with the recommendations and rulings of th e DSB and the provisions of the covered agreements". WT/DS285/ARB 
Page 16  
 
 unwarranted reduction of the level of suspension be low the level that that complaining party is 
entitled to seek, namely "equivalence".   
3.28 We find support for our position in past determinations.  We thus note that the arbitrator in 
US – Bananas III  case selected what it determined to be a "reasonable counterfactual" for the 
purposes of its calculation, taking into account the circ umstances of the case.  We also note that in the 
US – Section 110(5) Copy right Act (A rticle 25) dispute
59, the arbitrator based its determination of the 
level of nullification or impairment on historical fi gures on royalty income prior to the introduction of 
the TRIPS-incompatible limitation to copyright, ra ther than on a counterfactual that would have 
assumed no limitations in respect  of the right in question.60  We further note the finding that "the level 
of royalty income which the European Communitie s could reasonably expect EC right holders to 
receive is, in the view of the Arbitrators, limited to licensing revenue from the numbers of users that 
would  be licensed"61 (rather than the entirety of fees that c ould by law have been collected).   We 
further note the Arbitrator's observation in that dispute that:  
It should be recalled, in this context, that the inquiry into the level of benefits which 
the European Communities could expect to accrue to it if Section 110(5)(B) were 
brought into conformity with the TRIPS Agreement is hypothetical in nature.  The 
Arbitrators consider that, in such a situati on, it is necessary to proceed with caution, 
such that only those benefits which the Eu ropean Communities could, in good faith 
and taking into account all relevant circum stances, expect to derive from Articles 
11bis(1)(iii) and 11(1)(ii) are found to be nullified or impaired".62   
3.29 In response to a question by the Arbitrator, An tigua commented that, in that case, the parties 
were not in disagreement over the nature of the benefits that should accrue to the European 
Communities, but rather over the level of nullific ation or impairment, and that the "reasonable 
expectations" at issue did not refer to what was e xpected of the United States government but to what 
the European Communities could reasonably expect of non-governmental third-party participants in 
extracting the full value out of the impaired rights.63  
3.30 We agree with Antigua that the circumstances of US - Section 110(5) Copyright Act and EC – 
Bananas III differ somewhat from those of the present dispute.  Nonetheless, we find that the 
determinations of the arbitrators in those disputes pr ovide useful guidance as to the nature of our task 
in these proceedings.  Specifically, these determinations confirm us in our view that, to the extent that 
the estimation of the level of nullification or impair ment requires certain assumptions to be made as to 
what benefits would have accrued, in a situati on where compliance would have taken place, such 
assumptions should be reasonable, taking into account the circumstances of the dispute, in order for 
the proposed level of suspension to accurately refl ect the benefits accruing to the complaining party 
that have actually been nullified or impaired.  
                                                      
59 We are aware that the determinati on of the arbitrator in that case was made pursuant to Article 25 of 
the DSU, rather than pursuant to Article 22.6 of th e DSU.  Nonetheless, the nature of the determination 
entrusted by the parties to the arbitrator in that case wa s comparable to the determination that we are conducting 
now, namely a determination of the level of nullification or impairment of benefits accruing to a complaining 
party as a result of measures that had been found to be inconsistent with a covered agreement (in that case, the 
TRIPS Agreement). 
60 US – Section 110(5) Copyright Act (Article 25) , Award of the Arbitrators (Article 25 arbitration), 
paras. 4.7-4.14. 
61 US – Section 110(5) Copyright Act (Article 25) , Award of the Arbitrators (Article 25 ar bitration),, 
para. 3.33. 
62 US – Section 110(5) Copyright Act (Article 25) , Award of the Arbitrators, (Article 25 arbitration), 
para. 3.24, footnote 43. 
63 Antigua's response to question No. 6 bis of the Arbitrator, p. 12.  WT/DS285/ARB 
 Page 17 
 
 
 3.31 With these considerations in mind, we now turn  to an examination of whether the specific 
counterfactual upon which Antigua bases its calculations  accurately reflects the benefits accruing to it 
in this dispute.  As noted above, it is for the Un ited States to demonstrate to us that it does not.   
3.32 Antigua considers that the nature of the be nefits accruing to Antigua is reflected in 
Article XVI of the GATS and in the US schedule, a nd that for the purposes of this arbitration, it 
means that the United States is under an obligation to provide unrestricted market access for Antiguan 
providers of all cross-border remo te gambling and betting services to consumers in the United States.  
In Antigua's view, whether it should "reasonably" exp ect such benefit is not an issue, since it has a 
legal right to enjoy it.64  Antigua also considers that it is "entitled to ignore the failed Article XIV 
defences of the United States in making An tigua's assumptions in this proceeding".65  The United 
States, however, notes that, in this dispute, the DSB found that the US measures restricting remote 
gambling were provisionally justified under the public  morals exception set out in Article XIV(a) of 
the GATS, so that Antigua is wrong in asserting th at the United States has an unconditional obligation 
to allow access to each and every type of service covered by the service sectors included in the 
Member's schedule of GATS commitments.66 In the US view, the specific problem found with the US 
measures at issue was with respect to the limite d issue of the regulation of remote gambling on 
horseracing.67 
3.33 As we understand it, the question before us therefore essentially turns around whether and 
how we should take into account, in assessing the propo sed counterfactual, the fact that the Appellate 
Body found that the US measures at  issue were "necessary to protect pub lic morals or maintain public 
order" in accordance with paragraph (a) of Ar ticle XIV, even though it ultimately found these 
measures not to be justified under Article XIV.  
3.34 Both parties have presented extensive arguments relating to the rulings in the underlying 
dispute to explain their proposed counterfactuals and justify opposing views on this question.  We 
find it useful, in these circumstances, to consider firs t the terms of the Appellate Body's rulings in this 
dispute.    
3.35 The Appellate Body made, inter alia , the following findings: 
− first, with respect to Article XVI of the GA TS, the Appellate Body upheld  the Panel's 
finding that: 
 
"by maintaining the Wire Act, the Travel Ac t, and the Illegal Gambling Business Act, 
the United States acts inconsistently with its obligations under Article XVI:1 and sub-
paragraphs (a) and (c) of Article XVI:2";68 
− further, with respect to Article XIV of the GATS, the Appellate Body found that: 
 
"the United States has demonstrated that the Wire Act, the Travel Act, and the Illegal 
Gambling Business Act are measures 'necessary to protect public morals or maintain 
public order', in accordance with paragraph (a) of Article XIV, but that the United 
States has not shown, in the light of th e Interstate Horseracing Act, that the 
prohibitions embodied in those measures are applied to both foreign and domestic 
                                                      
64 Antigua's response to question No. 6 by the Arbitrator, p. 9. 
65 Antigua's response to question No. 2 of the Arbitrator, p. 4. 
66 US written submission, para. 20. 
67 US written submission, para. 21. 
68 Appellate Body Report, para. 373(C)(ii). WT/DS285/ARB 
Page 18  
 
 service suppliers of remote betting services for horse racing and, therefore, has not 
established that these measures satisfy the requirements of the chapeau."
69 
3.36 We note that the findings of the Appellate Body contain an initial finding that the measures at 
issue (three federal laws) are inconsistent with Article XVI of the GATS, followed by findings that 
these same measures are  "necessary to protect public mo rals or maintain public order" within the 
meaning of paragraph (a) of Article XIV, but th at the United States ultimately "has not established 
that these measures satisfy the requirement s of the chapeau" of that provision. 
3.37 We make no determination in these proceedings  as to what exactly the United States might 
have been required to do to implement these specific rulings.  Indeed, it would not be within the terms 
of our mandate to conduct such an assessment.  Ra ther, we assume that the United States may have 
had various WTO-consistent means at its disposal in order to come into compliance with its 
obligations in this dispute.  Indeed, the parties ha ve presented to us a range of scenarios with vastly 
divergent impacts on the calculation of the leve l of nullification or impairment of benefits.70  We limit 
our consideration of these rulings to the extent relevant to our assessment of whether Antigua's 
counterfactual accurately reflects the benefits accrui ng to it in this dispute.  In other words, as 
observed above, we consider this matter only to the extent required in order to determine whether 
Antigua's assumption that the United States woul d allow unrestricted access to Antiguan remote 
gambling and betting operators on the US market was reasonable, in the circumstances of the case.     
3.38 The Appellate Body's finding of a violation of Article XVI of the GATS in the underlying 
proceedings was based on a finding that the Un ited States had a commitment, under sub-sector 10.D 
of the GATS, to provide unrestricted access to the cross-border supply of remote gambling and 
betting services.  In light of this, we agree that the nature of the benefits accruing to Antigua in this 
dispute is reflected in Article XVI of the GATS and in  the US Schedule, and that these benefits relate 
to Antigua's access to the supply of cross-border ga mbling and betting services in the United States.   
3.39 The question we must consider, however, is whether Antigua's assumption that such access 
would come in the form of unrestricted access to th e US market with respect to all forms of remote 
gambling and betting services was reasonable, in the circumstances of this dispute. 
3.40 Antigua's proposed counterfactual assumes that, as  of 3 April 2006 (the end of the reasonable 
period of time for implementation), the United States would have granted it unrestricted access to its remote gambling market.  As Antigua itself notes, it  is based on an assumption, by Antigua, that it 
was entitled to "ignore" the United States invocatio n of Article XIV of the GATS in the underlying 
proceedings.  The United States objects that this is an  "extraordinarily unrealistic" scenario, in view in 
particular of the fact that the United States ba ns remote gambling for strong policy reasons of 
protecting public morality and public  order, and that it is entitled under the GATS to maintain such a 
ban as long as it is not applied in a manner that arbitrarily or unjustifiably discriminates between 
operators in different jurisdictions
71.  The United States also argues that the specific problem found 
                                                      
69 Appellate Body Report, para.. 373(D)(vi)(a).  In its overall conclusion on Article XIV, the Appellate 
Body, when noting that the United States had not shown that , in the light of the Interstate Horseracing Act, the 
prohibitions were applied to both foreign and domestic se rvice suppliers of remote betting services for horse 
racing, emphasized that "[f]or this r eason alone" it found that the United St ates had not established that these 
measures satisfied the requirements of the chapeau of Article XIV.  See Appellate Body Report, para. 372. 
70 We note, in this respect, that the scenarios identif ied by the parties in these proceedings as possible 
means of compliance range from a complete opening to a complete closing of the US remote gambling  and betting services market.  We also note that, while the parties are in disagreement as to the potential consistency 
of a scenario of partial opening of the market, they both appear to acknowledge that scenarios involving either a 
complete opening or a complete closing of the market could constitute a form of compliance with the recommendations and rulings in this case.    
71 US response to question No. 3 bis by the Arbitrator, para. 5.  WT/DS285/ARB 
 Page 19 
 
 
 with the US measures at issue was the "limited i ssue of the regulation of remote gambling on horse 
racing".72    
3.41 In considering this question, we find it appropriate to take account of the specific 
circumstances of this case.  We note in this resp ect that the United States has consistently asserted a 
public morals and public order policy both in the original proceedings and again in the compliance 
proceedings as a basis for maintaining restric tions on access to the United States remote gambling 
market.  The United States has thus asserted this policy objective before and beyond the end of the 
reasonable period of time, which is the date at which the counterfactual situation is assumed to start.    
3.42 We further note that the Appellate Body fo und that US measures restricting access to the 
remote gambling market were "necessary" within the meaning of Article XIV of the GATS for the 
protection of public morals and pub lic order, and found that the United States had not shown, "in the 
light of the Interstate Horseracing Act, that the pr ohibitions embodied in those measures are applied to 
both foreign and domestic service suppliers of remote betting services for horse racing  and, therefore, 
had not established that these measures sa tisfy the requirements of the chapeau".73   
3.43 In light of these elements, we consider that Antigua's assumption that it could simply "ignore" 
the failed US defence under Article XIV of the GATS,  and that the United States would comply with 
the rulings by providing unrestricted access to a ll sectors of its remote gambling market for Antiguan 
operators, was not reasonable, taking into account the particular circumstances of this dispute.    
3.44 In making this determination, we have considered carefully Antigua's arguments that it was 
entitled by right to expect unrestricted market acc ess, because the United States was obligated to 
provide such treatment in accordance with Artic le XVI of the GATS and its specific commitments, 
and that Antigua was also entitled to expect "withdr awal" of the inconsistent measure (i.e. in this 
dispute, in Antigua's view, the withdrawal of th e US restrictions on access to the remote gambling 
market), in accordance with Article 3.7 of the DSU.   
3.45 We agree with Antigua that the United States has an obligation, under Article XVI of the 
GATS and the US schedule, to provide market acc ess on the cross-border supply of remote gambling 
services.  At the same time, however, the GATS also  recognizes the right of Member to regulate in 
order to meet their national policy objectives74 and Article XIV specifically recognizes the possibility 
of adopting measures necessary to protect public orde r and public morals.  In this dispute, such 
legitimate policy objectives were consistently invoke d by the United States in order to restrict access 
to its remote gambling market despite the existenc e of a specific commitment, and the Appellate Body 
has found that the three federal laws at issue in  the proceedings were "measures ... necessary to 
protect public morals or to maintain public order".75  In these circumstances, a reasonable 
counterfactual must take into account these US policy objectives.   
3.46 We also note that while Article 3.7 of the DSU does provide that the objective of dispute 
settlement proceedings is usually the withdrawal of the inconsistent measures, we do not read this 
provision to mean that this is in all cases the only possible outcome in disputes where a violation of 
one of the covered agreements has been found.  The recommendations of the DSB to the United 
States in this dispute require it to bring its measur es into compliance with the GATS.  This did not 
necessarily require it to "withdraw" the measures by removing entirely the restrictions it maintained on remote gambling and betting services.  We note in this respect that the "concept of compliance or implementation prescribed in the DSU" has b een described by arbitrators mandated under 
                                                     
 
72 US written submission, para. 20. 
73 Appellate Body Report, para. 373 (emphasis added). 
74 Preamble of the GATS, fourth paragraph. 
75 Para. 373(D)(iii)(c) WT/DS285/ARB 
Page 20  
 
 Article 21.3(c) of the DSU to determine the re asonable period of time for implementation as "the 
withdrawal or modification  of a measure, the establishment or application of which by a Member of 
the WTO constituted the violation of a provisio n of a covered agreement" (emphasis added).
76  
Indeed, we note that Antigua itself appears to ag ree that a total prohibition on remote gambling and 
betting services (that is, no market access at all) woul d in fact also constitute a form of compliance by 
the United States in this dispute.77  
3.47 In this respect, we note the observations of  the compliance panel in this dispute:  
"The possible form of measures taken to comply with a recommendation under 
Article 19.1 of the DSU will depend on the rulings of the DSB in a particular dispute.  For example, if a measure has been found in consistent with a covered agreement, or 
unjustified under an otherwise available exception, due to the way in which the 
measure is applied , compliance with the recommendation could presumably be 
achieved by a change in the application of  the measure, without necessarily a change 
to the text of the measure itself or that of any written implementing measures.  The present dispute illustrates this point."
78 
3.48 We also note the observation made by the ar bitrator appointed under Article 21.3(c) to 
determine the reasonable period of ti me for implementation in this dis pute that "I am … conscious of 
the fact that any legislation adopted by the Unite d States will inevitably, as the Appellate Body Report 
demonstrates, bear on questions of public moral and public order".79 
3.49 In sum, our conclusion that Antigua's counterf actual is not reasonable, taking into account the 
circumstances of this dispute, is not modified by our consideration of Antigua's arguments in respect 
of the nature of its rights under Article XVI of th e GATS and of Article 3.7 of the DSU.  Rather, our 
analysis of these elements confirms to us that, as a matter of law, the United States may have had a 
range of WTO-consistent means at its disposal  in order to implement the recommendations and 
rulings in this dispute, not limited to a comple te opening of its remote gambling and betting services 
market. 
2. Alternative counterfactual 
3.50 Having determined that the counterfactual used by Antigua to estimate the benefits accruing 
to it in this dispute did not accurately reflect su ch benefits, we must now determine what would 
constitute a reasonable counterfactual, in the circumstances of this dispute. 
3.51 We first recall our determination above that a reasonable counterfactual for the purposes of 
this dispute would have to take into account the US public policy objective of protecting public 
morals and public order.   
3.52 The United States identified, as a potential means of implementation of the DSB's 
recommendations and rulings in this dispute, a complete prohibition on the provision of remote 
gambling services in the United States.80  Antigua appears to agree that this could constitute a form of 
                                                      
76 Argentina – Hides and leather , Article 21.3(c), Award of the arbitrator, para. 41. 
77 Antigua's response to Question 2 ter of the Arbitrator, p. 6 ("Although the total prohibition by the 
United States of all remote gambling and betting services would not be expressly  compliant with the DSB 
rulings, Antigua believes that it may well constitute de facto  compliance, consistent w ith the approach of the 
compliance panel in the US – Shrimp  dispute.") 
78 US – Gambling , compliance panel report, para. 6.21. 
79 Award of the Arbitrator under Article 21.3(c), paras. 46-47. 
80 US written submission, para. 15.  WT/DS285/ARB 
 Page 21 
 
 
 compliance.81  However, neither party has suggested that this scenario should form the basis of the 
calculation of the level of nullification or impairme nt of Antigua's benefits for the purposes of these 
proceedings.  We therefore do not consider it further. 
3.53 The other alternative scenario that has been pr esented to us is that identified by the United 
States, which assumes that the United States woul d provide unrestricted market access for remote 
gambling and betting services only in respect of horseracing gambling and betting.   
3.54 The United States describes this scenario as the "most likely", and explains that the specific 
problem found with the US measure at issue was with respect to the limited issue of the regulation of 
remote gambling on horseracing, and in particular on the United States inab ility to demonstrate an 
absence of discrimination under the chapeau of GAT S Article XIV with resp ect to remote gambling 
services on horseracing.  In the view of the United States, nothing in the DSB recommendations 
required it to clarify or change its measures w ith respect to other forms of remote gambling.82  
Moreover, according to the United States, nothing in the DSB recommendations and rulings, nor in 
the chapeau of GATS Article XIV, would require it to treat all types of remote gambling identically, 
and a counterfactual that allowed remote gamb ling on horseracing, but disallowed other types of 
remote gambling, is entirely plausible.83   
3.55 Antigua, however, considers that such a scenar io would not bring the United States into 
compliance.  Antigua argues in particular that in  the underlying proceedings, the United States alleged 
that it was entitled to maintain the offending measures  by application of Article XIV of the GATS and 
that it prohibited all remote gambling because, by its very nature, remote gambling presented risks 
and other pernicious features that were not subject  to amelioration through regulation or any other 
means.84  In Antigua's view, the United States can therefore not now assert that it is "necessary" to 
prohibit all remote gambling to protect its citi zens if it expressly allows remote gambling in any 
context.  Antigua also notes that the United Stat es never argued that remote gambling on horseracing 
was somehow "safer" than other types of remote gambling, or that Antiguan service providers should be allowed to do only what domestic providers can lawfully do.
85  Antigua further considers that it is 
not for the Arbitrator in this proceeding to assess whether such hypothetical measures can bring the 
United States in compliance with its obligations under the GATS. 
3.56 In approaching this part of our determinati on, we are mindful that our mandate in these 
proceedings is not to determine the consistency w ith the WTO covered agreements of hypothetical 
compliance measures.  We also note that, as we have stated above, whether the sc enario at issue is the 
"most likely", as described by the united States, is not  pertinent as such in our determination.  Rather, 
as determined above, we must assess whether the pr oposed scenario could constitute a "plausible" or 
"reasonable" compliance scenario, in the circumstanc es of the dispute, for th e purposes of calculating 
the level of nullification or impairment of be nefits accruing to Antigua in the dispute.  
3.57 We first observe, in this respect, that, as th e United States noted, the specific aspect of the 
United States' measures that was f ound to lead to an arbitrary discrimination within the meaning of 
the chapeau of Article XIV of the GATS was the tr eatment of remote gambling and betting in respect 
of horseracing.  This was the sole basis upon whic h the Appellate Body determined that the US 
measures were not justified under Article XIV of th e GATS.  Specifically, the Appellate Body found 
that:  
                                                      
81 See footnote 77.    
82 US written submission, para. 21. 
83 US written submission, para. 23. 
84 Antigua's response to question No. 2ter of the Arbitrator, p. 6. 
85 Antigua's response to question No. 2ter of the Arbitrator, p. 6. WT/DS285/ARB 
Page 22  
 
 "We  find,  instead, that the United States has de monstrated that the Wire Act, the 
Travel Act, and the IGBA fall within the sc ope of paragraph (a) of Article XIV, but 
that it has not shown, in the light of the IHA, that the prohibitions embodied in these measures are applied to both foreign and dom estic service suppliers of remote betting 
services for horse racing.  For this reason alone
, we  find  that the United States has 
not established that these measures satisfy the requirements of the chapeau."86  
(underlined emphasis added) 
3.58 In these circumstances, in particular in light of the nature of the findings in the underlying 
proceedings, we do not find it unreasonable to assu me that compliance might have been achieved 
through the removal of this specific source of discr imination identified by the Appellate Body, that 
ultimately led the measures to be found not to be ju stified under Article XIV of the GATS.  We also 
do not find it unreasonable to assume, in the circum stances of the dispute, that it may have been 
possible for the United States to remove such di scrimination by opening access to remote gambling on 
horseracing for foreign providers.  We also note that this is the only segment of the market that is 
currently already open to domestic providers, so that  an extension of this access to foreign providers 
would seem to require only limited adjustments to the current situation. 
3.59 In making this determination, we do not make any specific finding or determination as to the 
exact circumstances under which such opening might  take place and what specific conditions might 
be required for the United States to justify, unde r the terms of Article XIV of the GATS, such a 
distinction between the treatment of remote ga mbling on horseracing and other forms of remote 
gambling.  Rather, we are assuming that a range of  implementation options might exist for the United 
States, not necessarily limited to total prohibition or total opening of its market to remote gambling 
services.   
3.60 We also note that the arbitrator appointed unde r Article 21.3(c) to determine the reasonable 
period of time for implementation in this dispute made comparable assumptions: 
"I am … conscious of the fact that any legislation adopted by the United States will 
inevitably, as the Appellate Body Report demonstrates, bear on questions of public 
moral and public order .  It seems to me that, within  the field of public morals and 
public order, only prohibitions are simple.  In other words, to the extent that the 
United States may consider authorizing any fo rm of internet gambling or wagering, 
this will increase the complexity of any le gislative solution. The more such activities 
are authorized, the greater lengths the legislat or will have to go to in order to ensure 
that sufficient safeguards are in place to make the system consistent with, and 
acceptable under, prevailing standards of public morals and public order . (…)  
However, the United States has not, in this proceeding, explained in any precise manner how it intends to implement the reco mmendations and rulings of the DSB.  
The few indications that it has given suggest th at it is leaning more in the direction of 
'confirming' or 'clarifying' the prohibiti ons on the remote supply of gambling and 
betting services, rather than in the direction of  authorizing, even in part, the supply of 
such services."(emphases added) 
87 
3.61 Having determined that the alternative counte rfactual proposed by the United States reflects a 
reasonable assumption as to a situation in which the United States would have complied with the 
recommendations and rulings of the DSB in the circ umstances of this dispute, and thus can be 
considered to accurately reflect the benefits accruing to Antigua that have been nullified or impaired, 
                                                      
86 Report of the Appellate Body, para. 372. 
87 Award of the Arbitrator under Article 21.3(c), paras. 46-47.  WT/DS285/ARB 
 Page 23 
 
 
 we now proceed with the calculation of the level of nullification or impairment of benefits accruing to 
Antigua under this counterfactual. 
3. Separate opinion 
3.62 One of the arbitrators is unable to agree with  the analysis and conclusions reflected in 
paragraphs 3.41 to 3.61 above.  In the view of th is arbitrator, it was not unreasonable for Antigua to 
assume, in the circumstances of this case, a count erfactual scenario under which the United States 
would provide unrestricted access to its remote gambling and betting market.   
3.63 In the view of this arbitrator, it is appropriate  to refer, as a starting point, to the findings and 
conclusions of the panel and the Appellate Body in this case.   Sp ecifically, the Appellate Body has 
determined that, although the three federal laws at issue are measures "n ecessary to protect public 
morals or public order", the United States had not demonstrated that they were applied in accordance 
with the requirements of the chapeau of Article XIV of the GATS.   
3.64 The Appellate Body made this  determination "in light of" only one specific discrimination 
that it identified in the application of the measures.   However, this does not necessarily imply, as the 
United States suggests, that the specific problem found with the US measure at issue was restricted to 
the "limited issue of the regulation of remote gambling on horse racing"88.  Rather, the overall 
conclusion of the Appellate Body was that the measures at issue  (rather than simply the 
discriminatory treatment provided in respect of horseracing) were, as a result, not justified under 
Article XIV of the GATS.  As the compliance panel in this case noted: 
"It is true that the Appellate Body found that the United States had demonstrated that 
the measures at issue were 'justified' under pa ragraph (a) of Article XIV of the GATS.  
However, this was not a finding on Article XIV in its entirety.  The Appellate Body 
expressly confirmed that Article XIV contemplates a 'two-tier analysis' – first, under one of the paragraphs of Article XIV, a nd then under the chapeau.  There was no 
finding that the measures were consistent with  the chapeau or with  Article XIV in its 
entirety nor, hence, with the United States ' obligations under the GATS, and there is 
no concept recognized under the DSU of provi sional or transitional consistency with 
a recommendation of the DSB."
89 
3.65 Article XIV of the GATS allows Members to main tain certain trade-restrictive measures that 
would otherwise be inconsistent with  their obligations under this Agreement, in order to fulfil certain 
legitimate objectives.  However, th ese measures are required to be app lied in such a manner that they 
do not result in unjustifiable discrimination or disguised  restrictions to trade.  In other words, the 
protection afforded by the exceptions under the various paragraphs of Article XIV of GATS is 
conditional upon an applica tion of the measures at issue that does not turn them into instruments of 
undue discrimination or protection.  In this case, th e United States was not able to justify that it 
applied the measures consistently with these require ments. Furthermore, the compliance panel report 
also identified further aspects in the application of  the measures that could reflect a discriminatory 
application of the measures at issue, although it made no findings in respect of such aspects.90     
3.66 This arbitrator agrees with the determination in paragraph 3.41 above that it is appropriate to 
take into account the specific circumstances of th e case in order to assess whether the counterfactual 
proposed by Antigua accurately reflects the benefits accruing to Antigua under the GATS that have been nullified or impaired in this case.  However, th is arbitrator considers that, in the circumstances of 
                                                     
 
88 US written submission, para. 20. 
89 US – Gambling , compliance panel report, para. 6.29 (original footnotes omitted). 
90 See the developments on intrastate commerce, Compliance Panel Report, at paras. 6.118 to 6.123. WT/DS285/ARB 
Page 24  
 
 this case, it was not unreasonable for Antigua to base its counterfactual on an assumption that the 
United States would open its market to the cross-bor der provision of remote gambling services.  Such 
an assumption is fully compatible with the nature of  the Appellate Body's findings in this case, as 
analysed above.  In fact, as not ed above, the United States itsel f acknowledges that this scenario 
would constitute compliance with the DSB recommendations and rulings in this case.    
3.67 By contrast, it is not clear that the alterna tive counterfactual scenario envisaged by the United 
States, which involves a partial opening of a limited segment of the market, constitutes a more reasonable assumption in the circumstances of the case.  In particular, assuming, for the sake of 
argument, that such a scenario would constitute co mpliance with the recommendations and rulings of 
the DSB in this case (something that is not within our mandate to determine), it is not clear how the 
United States proposes to reconcile the protection of p ublic morals or public order with the opening of 
one segment of the market (horseracing).      
3.68 In light of the above, this arbitrator is not persuaded that the United States has demonstrated 
that Antigua's proposed counterfactual was unreaso nable in the circumstances of the case.   
3.69 This does not imply, however, that this scenar io would constitute the only way in which the 
United States could have complied with these r ecommendations and rulings.  As noted above, 
Members are free to choose the WTO-consistent mean s by which they will comply with DSB rulings, 
and there may be a number of ways in which the United States could have complied, and still could 
comply, with the rulings in this case.  Nor does th is determination imply that US policy objectives 
should not be taken into account.  On  the contrary, this arbitrator agrees with the determination of the 
majority that a reasonable counterfactual must take into account the US policy objectives, as stated in 
para. 3.45 above.  In that sense, nothing would re quire the US to abandon its objective of protecting 
public morals or public order, under Article XIV(a) of the GATS, in implementing, in the future, the 
recommendations and rulings of the DSB.  Indeed, it  is quite conceivable that the United States could 
have found ways in which to address these concerns  while protecting such interests.  Other WTO 
Members have chosen to open their market to remo te gambling, and it would not be reasonable to 
assume that such Members do not also have similar policy objectives.  
3.70 This arbitrator also notes Antigua's argument that the objective of inducing compliance with 
the rulings of the DSB is to be taken into account  in the Arbitrator's assessment of Antigua's 
counterfactual.  In the view of this arbitrator, the objective of inducing compliance cannot lead to  suspension being authorized in excess of equivalence with the level of nullification or impairment of 
benefits, as foreseen in Article 22.6 of the DSU, a nd this must remain the benchmark against which 
the proposed level of suspension is assessed.  At  the same time, however, in a situation where 
different means of compliance might form the basis of  a counterfactual in orde r to determine the level 
of nullification or impairment of benefits, th e complaining party would not be prevented from 
selecting a counterfactual that may lead to a higher level of nullification or impairment than others, 
provided that such counterfactual is reasonable.   
3.71 In should be borne in mind, in this resp ect, that the Member concerned has had the 
opportunity to comply with the rulings at issue,  and that the very reason for the existence of 
countermeasures under the DSU is to induce compli ance with the covered agreement that has not 
taken place within the period foreseen in the DSU.  In these circumstances, the complainant is by 
necessity obliged to make certain assumptions as to  how compliance might have taken place.  This 
has no implications, however, as to the means th rough which the Member concerned might actually 
choose to comply in the future, possibly including, in this case, through the adoption of measures that 
involve a restriction to trade fully consistent  with the provisions of Article XIV of GATS. 
3.72 Finally, although this arbitrator disagrees with the conclusions reached by the majority of the 
Arbitrator in respect of the choice of counterf actual, it nonetheless sees no added value in pursuing the  WT/DS285/ARB 
 Page 25 
 
 
 calculations on the basis of Antigua's counterfactual, which the majority of the Arbitrator does not 
consider to be reasonable.   Accordingly, the  assessments and calculations in the following section 
reflect the common view of the Arbitrator as to  the calculation of the level of nullification or 
impairment, on the basis of the counterfactual proposed by the United States.   
3.73 This arbitrator also wishes to highlight that, ev en if calculations had been pursued on the basis 
of Antigua's proposed counterfactual, a number of  parameters would have had to be taken into 
account. In particular, due account would have had to be taken of the fact that, in a scenario under 
which the United States would open the entirety of its remote gambling market, Antigua would face 
competition not only from other foreign operators but also from domestic US operators that currently 
also have no access to the market.  
D. CALCULATION OF THE LEVEL OF NULLIFICATION  
3.74 In light of our determinations above, we now proceed with an ass essment of the exports "lost" 
by Antigua on the basis of a counterfactual unde r which the United States would have provided 
unrestricted market access to Antiguan operators onl y in respect of horseracing gambling and betting.   
3.75 For this purpose, we first review the approach of Antigua in respect of the calculations and 
methodologies, and then, as necessary, the approach of the United States, before turning to the 
approach that we have adopted, taking into acc ount our review of the parties' approaches.   
1. Review of the approach proposed by Antigua 
(a) Description of the approach proposed by Antigua 
3.76 In its calculations, Antigua assumes complete access for all of its remote gambling services to 
the United States market as the appropriate counterfactual.91  The core data used by Antigua comes 
from the Quarterly eGaming Statistics Report of the private gambling consulting group "Global 
Betting and Gaming Consultants" (GBGC) and fro m its underlying database.  In the absence of 
bilateral data, Antigua uses data from the GBGC  database on global remote gaming revenues for 
Antigua for the years 1999-2006 and projections for Antigua for the years 2007-2012 as a starting point.
92  Antigua considers its global remote gambli ng revenues to be a good proxy of its revenues 
from the US, claiming that at least 80 per cent of the revenue of Antiguan remote gaming operators 
has been from customer s in the United States.93  The second set of key data in Antigua's approach are 
historical data on global remote gaming revenu es of the whole industry (not only the Antiguan 
industry) for the years 1999-2006 and projections for the years 2007-2012 gathered from the GBGC's Quarterly eGaming Statistics Report.  The two data set together allow Antigua to calculate its global 
market share.
94   
3.77 Antigua is of the view that its remote gaming industry drove the growth of the remote global 
gaming markets until 2002.  Antigua assumes that both the historical data and the projections by GBGC reflect the adverse impact on Antigua of the US measures as of a certain date and that the difference between actual revenues at that date and ac tual revenues after that date is principally due to 
the US measures.
95  Hence, Antigua seeks to determine how  its remote gaming revenues would have 
developed in the absence of the US measures, in or der to compare those counterfactual revenues to its 
                                                      
91 Antigua's Methodology  Paper,  pages 3-6;   Antigua's written submission,  paras. 33-36 and 72-94. 
92 Antigua Methodology Paper, Exhibit AB-1. 
93 Antigua's written submission, para. 112. 
94 Antigua Methodology Paper, Exhibit AB-1. 
95 Antigua's Methodology Paper, page 3; and Antigua's written submission,  para. 112. WT/DS285/ARB 
Page 26  
 
 actual revenues beginning 4 April 2006, i.e. after th e expiry of the reasonable period of time for the 
United States to come into compliance. 
3.78 Antigua presents three "models" to calculate the counterfactual Antiguan remote gaming 
revenues per annum starting from the historical time  series and following the same basic framework.  
For its Constant Market Share model, Antigua take s its global market share in 2003 (21 per cent) as a 
basis for constructing the counterfactual.  It assu mes that absent the US measures, it would have 
retained that market share.  Hence, it multipli es the global remote gaming revenues of the whole 
industry for each year 2004-2012 with the 21 per cent share in order to arrive at annual counterfactual 
Antiguan remote gaming revenues.  For the years 2006-2012, it then subtracts the actual/projected 
global remote gaming revenues for Antigua from th e counterfactual numbers to obtain the Antiguan 
annual global remote gaming revenues lost beginning 4 April 2006 (in order to take into account that 
the time period after the reasonable period of time is  less than a year it redu ces the calculated annual 
2006 amount by about one quarter).  It then multip lies the average annual lo sses by an assumed output 
multiplier ("small island economy multiplier").  In th e absence of better estimates, it proposes to use a 
multiplier of 1.41, established for the tourism industry in Barbados.
96   Finally, it discounts the "trade 
loss" so obtained for each year 2006-2012 to the year 2007, utilizing a 9.38 per cent discount rate.  
This rate is the median weighted average cost  of capital for SIC Code 7999, which includes the 
gaming industry, according to the Ibbotson Cost of Capital 2006 Yearbook.  Antigua, finally, takes 
the simple average over those 6¾ years yielding an  average annual global remote gaming revenue loss 
over the 2006-2012 period of US$3.45 billion.97 
3.79 The other two models proposed by Antigua only differ in the way in which the annual 
counterfactual Antiguan remote gaming revenues ar e calculated.  Rather than assuming a constant 
share of the global market, Antigua proposes, in the Constant Growth Rate Model, to take its actual 
global remote gaming revenues of 2001 (US$2.392 billion as per GBGC ) and proceed in two steps to 
determine the counterfactual amounts for each fo llowing year.  For the years 2002-2006, Antigua 
assumes that this amount would have been unchang ed.  For the years, 2007-2012 it assumes that it 
would grow at an annual rate of 8.7 per cent.  Th e latter growth rate c onstitutes the compound annual 
growth rate of global remote gaming revenues fo r the whole industry excluding Antigua.  Antigua 
then proceeds in the same manner subtracting the actual/projected global remote gaming revenues for 
Antigua from the counterfactual numbers to obt ain the Antiguan annual global remote gaming 
revenues lost beginning 4 April 2006.  After appl ying the multiplier, discounting and averaging, it 
obtains an average annual global remote  gaming revenue loss of US$2.403 billion.98 
3.80 Finally, under the fixed revenue model Antigua simply presumes that it would have retained 
its actual global remote gaming revenues of 2001 (US$ 2.392 billion as per GBGC) in each following 
year until 2012.  Again, these counterfactual amounts are reduced by the actual/projected global remote gaming revenues for Antigua to obtain th e Antiguan annual global remote gaming revenues 
lost beginning 4 April 2006.  After applying the multiplier, discounting and averaging, it obtains an 
average annual global remote gaming revenue loss of US$1.614 billion.
99  
3.81 Apart from the counterfactual, the United States takes issue with other aspects of Antigua's 
methodology, in particular its underlying data, wh ich it considers as "inherently unreliable" and as 
providing "no useful information in this arbitration".100  In the following, we will review the 
arguments by the parties on each of the major concerns raised in relation to Antigua's proposed approach, followed by an assessment by the Arbitrator. 
                                                     
 
96 Antigua's Methodology Paper,  pages 8-9. 
97 Antigua's Methodology Paper,  pages 6-9, Exhibit AB-3. 
98 Antigua's Methodology  Paper,  pages 9-10, Exhibit AB-4. 
99 Antigua's Methodology  Paper,  pages 10-11, Exhibit AB-5. 
100 US response to question 1 by the Arbitrator, para. 4.  WT/DS285/ARB 
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 (b) Nature of GBGC data, data gatheri ng methodology and data inconsistencies 
(i) Arguments by the parties 
3.82 The United States notes that only insufficient e xplanations of GBGC's data gathering and 
processing methodology have been given and that the data contains internal inconsistencies and has 
been substantially revised from one quarterly report to the next.  To begin with, the United States 
states that it has been unable to ev aluate the basis for the data and the methodologies used by GBGC.  
The United States notes that the "Quarterly eGamin g Statistics Report" by GBGC was not submitted 
by Antigua to the Arbitrator with its methodology pa per.  The United States was only able to identify 
a report entitled "Quarterly Data Report" , which was on sale on the GBGC website.101  The United 
States claims that it is not clear if GBGC produ ced this report at the behest of Antigua for the 
purposes of the dispute and, hence, whet her it may contain self-serving allegations.102   
3.83 The United States continues to consider th e GBGC data unreliable on methodological 
grounds even after submission by Antigua of first an extract from the May 2007 release of the GBGC 
Quarterly eGaming Statistics Report along with an explanation by GBGC of some of its contents103 
and, thereafter, of the full May and October 2007 releases of the Report as well as a letter by GBGC 
explaining its methodology in gathering the data.104  The United States observes that GBGC in its 
cover letter admits that during the "early years"  (presumably 2000, when it started selling gambling 
data, and following years) "the information availabl e was more limited."  The United States holds that 
such information must have been very "limited", since, even for current figures, the only source of 
data GBGC uses for non-public opera tors is guidance provided by unspecified contacts in the industry 
and information from private companies with  which GBGC has consultancy arrangements.105  In that 
regard, the United States believes further explanation is required on how the information is requested, 
whether sampling is used, and if so, how.106 
3.84 The United States also sees the extent of data  revisions by GBGC as a sign of methodological 
problems.  It points to GBGC's statement that it constantly revises its numbers and its admission that 
"previous editions" of its estimates have "little re levance."  According to the United States, this 
suggests that the figures, notably the ones for Anti gua in the early years (i.e. around the year 2000), 
could be substantially different in any future re vision of the data, and that the relevance of the 
available GBGC in that regard is therefore questi onable.  As an indication of the severity of such 
revisions, the United States notes the 35 per cent downward revision of North American online 
gambling revenues from the May 2007 to Oct ober 2007 releases of GBGC's eGaming Report.107   
3.85 The United States also points to what it perceives to be data inconsistencies.  It notes that 
Antigua's asserted revenues for 2001 (based on the May 2007 release of GBGCs eGaming Report) 
exceeds the figure for all revenues from players in No rth America for the same year (according to the 
October 2007 release of the eGaming Report).108  It also notes the inconsistency between regional 
statistics in the May 2007 release of the GBGC da tabase and the revenue figures of Antigua, Curaçao 
and Cost Rica, which taken together surpass the to tal for the entire Central American and Caribbean 
region in certain years.109   
                                                      
101 US written submission,  paras. 28-29. 
102 US written submission,  paras. 28-29. 
103 Antigua's written submission, paras. 45-46 and Exhibits AB-1 and AB-2. 
104 Antigua responses to questions by the Arbitrators, Exhibits AB-14, AB-14(1) and AB-14(2). 
105 US comments on Antigua responses to questions by the Arbitrator, para. 9. 
106 US response to question 36 by the Arbitrator, para. 45. 
107 US comments on Antigua responses to questions by the Arbitrator, paras. 11-12. 
108 US comments on Antigua responses to questions by the Arbitrator, para. 19. 
109 US response to question 36 by the Arbitrator, para. 48. WT/DS285/ARB 
Page 28  
 
 3.86 The United States notes that the breakout for An tigua is not contained in GBGC's regular 
eGaming Statistics Reports.  Since it appears to ha ve been prepared especia lly for Antigua for the 
purposes of the arbitration, the United States concl udes that the Antiguan data could not have been 
commonly relied upon by others in the online gambling industry
110 (and, hence indirectly be 
confirmed in the market place).  The United States also observes that the more detailed analysis 
GBGC purports to have undertaken as of 2005 (reviewing the information base from 2003 onwards) 
seems to focus on poker gambling sites rather than  sportsbetting, as the main gambling activity by 
Antiguan operators.111   
3.87 Antigua replies that the GBGC data is publicly  available in the sense that any one who is 
willing to pay for the information may have access to it.112  It recalls that GBGC and its data existed 
before Antigua's use of its data in the estimation of  the level of nullification or impairment.  It also 
explains that the Antiguan data has not been established for Antigua, but provided by GBGC to 
Antigua upon its request from the underlying database, but that it is not a standing feature of GBGC's 
Quarterly eGaming Statistics Report, unlike some of the other regional and global statistics.113  
3.88 Antigua is of the opinion that, in addition to  the letter from GBGC explaining GBGC's data 
gathering methodology114, the best proof of the reliability of th e GBGC data is its widespread use in 
the global marketplace.  Antigua notes that as an independent company GBGC relies upon industry participants and other parties for its revenues.  It has every reason to be as accurate as it can possibly 
be in order for its data to be considered reliable and useful by its customers.  Antigua doubts that 
GBGC would be long in business otherwise.
115  Antigua provides a list of institutions that have used 
GBGC data in support of its good credentials.  It ma kes specific reference to GBGC data used in a 
report commissioned by the European Commission.116   
3.89 Concerning data revisions and inconsistencies, Antigua notes that GBGC refines its data on 
an ongoing basis (including the allocation of  revenues to particular jurisdictions).117  It observes that 
adjustments for the changing value of the Unite d States currency can lead to relatively minor 
inconsistencies among data sets, particularly  those compiled at different points in time.118 
(ii) Analysis by the Arbitrator 
3.90 At the outset, we note that questions of data availability and reliability present themselves as a 
particular challenge in this proceeding.  In consid ering data quality, we have to make an evaluation in 
both absolute and relative terms.  In other words,  in analysing the strengths and weaknesses of the 
GBGC data, we have to keep in mind the question whether alternative sources of data put forward by 
parties really constitute an improvement, given that these may suffer from certain deficiencies 
themselves.   
3.91 We agree with the United States that the information concerning data gathering and 
processing methodology provided to Antigua by GBGC l eaves much to be desired.  At the same time, 
                                                      
110 US comments on Antigua responses to questions by the Arbitrator, paras. 14-15. 
111 US comments on Antigua responses to questions by the Arbitrator, para. 10. 
112 Antigua response to question 26(b) by the Arbitrator, page 26. 
113 Antigua response to question 26(f) by the Arbitrator, page 26.  The fact that country information 
existed in a database maintained by GBGC from where specific data was extracted upon request was clarified by 
Antigua in the oral hearing of 18 October 2007. 
114 Antigua response to question 26(e) by the Arbitrator, pages 25-26 and Exhibit AB-14. 
115 Antigua comments on answers by the US, page 24-25. 
116 Antigua response to question 26(a) by the Arbitrator, page 25 and Exhibit AB-14(4);  and Antigua 
comments on answers by the US, pages 5-7 and 23. 
117 Antigua response to question 26(d) by the Arbitrator, page 25. 
118 Antigua comments on responses by the US to questions 35 and 36 by the Arbitrator: pages 25-27.  WT/DS285/ARB 
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 we think that, in the absence of more detailed background information from GBGC, the wide use of 
its data in the market place can be seen as giving so me indirect support to its figures, since it implies a 
certain degree of acceptance amongst observers familia r with the industry.  It may also show that 
alternative data sources are somewh at hard to come by.  We are al so not convinced why GBGC would 
have an interest in providing wrong numbers to  its clients who may base some of their business 
decisions on that data and would quickly discard GB GC as a reliable provider in case of persistent 
flaws. 
3.92 We acknowledge that some of the aggregate figures that are standing features of GBGC's 
Quarterly eGaming Statistics Reports are perhaps more reliable than the country data and can 
certainly be useful to our analys is.  The former may be assumed to be periodically subjected to the 
judgement of a broader range of users, to rely to  a larger extent on publicly reported information and 
to obviate the need to allocate revenue on the basi s of additional assumptions.  We take it that the 
revenue data for Antigua may be affected by such pr oblems, especially in the early years.  We note in 
this regard, that the revisions for Antigua undert aken by GBGC between the May and October 2007 
releases of the Quarterly eGaming Statistics Repo rt are quite substantial for the years 2000-2002 
(downward corrections of between  one third and one fourth), less so for 2003, while the years 1999 
and 2004-2006 remain virtually unchanged.  We also note that the data inconsistencies identified by 
the United States between regional aggregates a nd country data, including on Antigua, in the 
May 2007 release of the Quarterly eGaming Statisti cs Report appear to have been removed in the 
October release.119  While these revisions are severe, they  are perhaps not enough to discredit the 
GBGC data, especially since the changes of the Anti guan data for more recent years have been less 
dramatic.  However, if the GBGC data were to be  used, we would take some comfort in obtaining 
additional confirmation of the order of magnitude  of Antigua's revenues from remote gambling over 
those years. 
(c) Relationship between GBGC remote gambling reve nue data and Antigua's exports of remote 
gambling services to the United States 
(i) Arguments by the parties 
3.93 The United States questions to what extent An tigua's remote gambling revenues according to 
GBGC constitute exports of remote gamb ling services from Antigua to the United States.120  T h e  
United States notes that the GBGC data at most shows gambling revenue collected from persons in 
North America by operators located and/or licensed somewhere in the Western Hemisphere.  The data 
do not purport to show what revenues actually flow back to any jurisdiction.121   
3.94 Three issues appear to be involved:  Firstly, the GBGC data does not provide for Antigua's 
gambling revenues from the United States, but only for its supposed remote gambling revenues from 
the world or for the world's remote  gambling revenues from North America.122  Secondly, the United 
States considers the GBGC methodology not to be sufficiently clear in relation to how revenue 
estimates were calculated and how country sh ares of supply and demand or specific gambling 
products were determined.  As a result, it would be  unclear whether revenues were allocated on the 
basis of where licensing existed, operations were  located or company headquarters were located.123  
                                                      
119 We also do not consider it appropriate to speak of a data inconsistency if the sum of country data in 
one release of the GBGC Report exceeds  the corresponding regional aggregate in another release, but not in the 
same release.   
120 US response to question No. 36 by the Arbitrator:  para. 43. 
121 US comment on Antigua response to questions Nos. 38, 39 and 40 by the Arbitrator, para. 60. 
122 US written submission, para. 41;  and US response to  question No. 36 by the Arbitrator, para. 44.  In 
other words, the data may include revenues from exports of  remote gambling services to destinations other than 
the US and, possibly domestic revenues. 
123 US response to question No. 36 by the Arbitrator, para. 45. WT/DS285/ARB 
Page 30  
 
 The United States holds that the fact that a we bsite is licensed by Antigua does not necessarily 
indicate where the website's operations are located.
124  Websites may obtain  licenses from multiple 
jurisdictions for marketing or other purposes, while operating out of a different jurisdiction 
altogether.125  Consequently, the United States consider s it is unclear how revenues from companies 
with licenses in several jurisdiction are allocated to a specific country.  The United States notes that 
GBGC allocates revenue based on the operation of th e server, but that no explanation is given of 
underlying assumptions in relation to GBGC's statemen t that "given the complexity of the structures 
of some of the organizations involved in the onlin e gambling industry some assumptions have to be 
made by GBGC in this regard."126  Thirdly, the United States submits that for gambling revenue 
actually to be considered an export of Antigua, that revenue must be generated from internet 
operations actually located in Antigua and must be returned to those same operations in Antigua.  
Otherwise, such revenue would not be associated  with an Antiguan service export, and any reduction 
in that level of revenue cannot be considered nullification and impairment suffered by Antigua.127  It 
notes that Antigua has conceded that many of the gambling revenues associated with websites 
licensed by Antigua are held in foreign banks by foreign nationals and are never returned to 
Antigua.128  The United States goes on to explain that Antigua may act as a point of sale for business 
owners in third countries.  Its exports would be me asured by the stream of payments it receives from 
foreign firms for its selling services, which would be a modest fraction of the claimed revenues.129 
3.95 On the first issue, Antigua provides a letter from GBGC stating that it estimates the historical 
share of Antigua's remote gambling revenues from th e United States to amount to between 80 and 90 
per cent of its total revenues.  Antigua also notes that certain Antiguan operators in conversations 
have estimated their US revenues to lie between 90 and 95 per cent and that Antigua's Directorate of 
Gaming of Antigua uses an 80 per cent figure.  Anti gua also refers to some publicly listed companies 
reporting estimates in a similar range.130  On the second aspect, Antigua notes that remote gambling 
revenues are allocated among countries by the loca tion of the server that processes the wagers, a 
methodology used not only by GBGC131, but also in the 2006 Report commissioned by the European 
Commission.  As far as the third point is concerned,  Antigua holds that the United States is wrong in 
arguing that revenues generated by an Antiguan ope ration do not count as Antigua's exports if they 
accrue to "foreign nationals" or if the revenues are held in "foreign banks".  It notes that for the 
purposes of measuring GDP (as the more relevant concept in measuring revenues generated in a 
particular jurisdiction compared to GNP), it does not matter who owns Antiguan companies or where 
the profits go, as long as the remote gaming revenu es are earned through the operation of computer 
services in Antigua.132  Antigua also notes that all remote  gambling revenues should be considered 
exports, as there is no domestic market for these services.133 
(ii) Analysis by the Arbitrator 
3.96 Concerning the question to what extent An tigua's global revenues from remote gambling 
constitute exports by Antigua to the United States of such services, we, first of all, regret that the 
GBGC revenue data for Antigua is only given at th e global level and not by destination, specifically 
in regard to revenues from the United States.  We observe, in that context, that the services trade 
                                                      
124 US response to question No. 11 by the Arbitrator, para. 18. 
125 US response to question No. 35 by the Arbitrator, para. 38. 
126 US comments on Antigua responses to questions by the Arbitrator, para. 17. 
127 US response to question 11 by the Arbitrator, para. 18. 
128 Antigua's written submission:  para. 106, as paraphrased by the US in US response to question 
No. 11 by the Arbitrator, para. 18. 
129 US response to question No. 36 by the Arbitrator:  para. 43. 
130 Antigua response to question 14 by the Arbitrator, page 17, Exhibit AB-14 and Exhibit AB-17. 
131 Antigua response to question 26(e) by the Arbitrator, pages 25-26 and Exhibit AB-14. 
132 Antigua comments on answers by the US, pages 13-14. 
133 Antigua comments on US response to question 36 by the Arbitrator, page 25.  WT/DS285/ARB 
 Page 31 
 
 
 statistics referred to by the United States are not av ailable on a bilateral basis either.  The anecdotal 
evidence provided by Antigua, while unsatisfying, provides at least some indication of the United 
States share in Antigua's remote gambling revenues.   
3.97 As far as multiple licences in several jurisdic tions are concerned, it seems reasonable to us 
that revenues be allocated across countries on the ba sis of where the service is produced (i.e. wagers 
are processed, etc.).  In the absence of any evidence to the contrary, th e location of the server seems to 
us to be an acceptable proxy for determining where the service is produced.  This is what GBGC, as a 
general rule, purports to be doing, although we are un able to verify from the information provided to 
us how thoroughly this is done and cross-checked for consistency.  However, the evolution of 
revenues for Antigua and some competitors in the re gion over the years gives a vague indication that 
GBGC does account for shifts in revenues follo wing possible shifts in server location.   
3.98 Finally, we agree with the United States that for gambling revenue to be considered an export 
by Antigua, it must be generated from internet ope rations located there.  However, we fail to 
understand why the United States contends that such re venue ceases to be an Antiguan export if it is 
not returned to those same operations, for instance because payments are received by a foreign owner 
or on a foreign bank account.  In regard to conceptu al issues regarding exports/imports, we refer to the 
IMF's Fifth Edition of the Balance of Payments Ma nual published in 1993, noting also that the United 
States itself uses IMF balance of payments data for its calculations.  The Manual clarifies that despite 
the connotation, the balance of payments is not con cerned with payments, as that term is generally 
understood, but with transactions (p ara. 26).  A transaction is defined as an "economic flow that 
reflects the creation, transformation, exchange, tran sfer, or extinction of economic value and involves 
changes in ownership of goods and/or financial asset s, the provision of services, or the provision of 
labour and capital" (para. 13).  The Manual states th at the balance of payments records transactions 
between residents and non-residents (and not between  nationals and foreign na tionals).  The concept 
of residence is based on a transactor's centre of economic interest.  In particular, we note that an enterprise is said to have a centre of economic intere st and to be a resident unit of a country when the 
enterprise is engaged in a significant amount of pr oduction of goods and/or services there (para. 73).  
From this we conclude, as suggested by Antigua, th at a service "produced" by a resident and provided 
to a non-resident should be considered an export by  that country even if the resident is a foreign 
national or payment is received on a non-resident  bank account.  Hence, we believe that such 
elements cannot constitute conclusive evidence that the remote gambling services that Antigua sells to 
the United States are in fact "produced" elsewhere , and we have not received any evidence as to 
where such a production would take place, if not in Antigua.   
(d) Relationship between GBGC remote gambling re venue data and Antigua's reported exports 
and GDP 
(i) Arguments by the parties 
3.99 The United States argues that the GBGC data  does not comport with data on Antigua's 
exports and GDP.
134  The United States holds that the GBGC  data are inconsistent with official 
economic statistics prepared by international institu tions, such as the Eastern Caribbean Central Bank, 
the International Monetary Fund and the WTO.135  The United States supplies data from all of these 
sources showing that exports by Antigua of "other  services" (ECCB), "other business services" (IMF) 
and "other commercial services" (WTO), which shoul d include gambling services, are not more than 
around $50 million per annum in recent years, and hence, of a completely different order of 
magnitude than the $1 to 2 billion of remote gami ng revenue cited by Antigua on the basis of the 
                                                      
134 US response to question No. 36 by the Arbitrator, paras. 49-51. 
135 US written submission, paras 30 and 38. WT/DS285/ARB 
Page 32  
 
 GBGC data.
136  The United States also provides ECCB data on the development of Antigua's GDP 
over time, again noting inconsistencies, with alle ged remote gaming revenue exceeding total GDP per 
annum and with changes in alleged remote gaming revenues not being reflected in GDP.137   
3.100  The United States acknowledges that exports may exceed the value of a country's GDP, as is 
the case for e.g. Singapore, where in 2005 goods a nd services exports were 143 per cent greater than 
GDP.  However, the United States holds that Antig ua's claimed net revenu es from exported internet 
gambling services in 2001 in addition to its repor ted exports of goods and services would exceed the 
value of its GDP by over 300 per cent or be twice in excess of Singapore, the country in the world 
with the highest ratio of exports to GDP on the basis of official data.  Hence, it concludes that even 
accepting that exports can and do exceed GDP, the Anti guan claims are so out of bounds relative to 
the experience of other Members that the GDP comparison may serve to question Antigua's export 
claims.138 
3.101  The United States further notes that even if Antiguan export revenues from gambling services 
were unrecorded (claimed to be  around $2.4 billion in 2001), Antigua has made no claim that its 
$483 million of imports in 2001 are underrecorded that may have offset the claimed surges in 
gambling export revenues.139  Hence, the surplus could only ha ve derived from additional unrecorded 
value added within the Antiguan economy itself, corresponding to a GDP that would have been almost 360 per cent larger than An tigua's officially reported GDP.  The United States considers it to 
be implausible that such an enormous understate ment of the size of the Antiguan economy exists.
140   
3.102  The United States adds that the footprint of the alleged massive inflow and outflow of 
revenues during the 1999-2005 period should have been felt in the rest of the Antiguan economy, and 
would have been measured by the ECCB and the IMF.141  In particular, the United States observes 
that according to footnote 46 to Antigua's answer to question 39 by the Arbitrator, the data considered 
by the ECCB in its balance of payments reporting in clude "financial statements and foreign exchange 
records reported by the commercial banks to the ECCB, and ECCB's financial statement."  The 
United States claims that gambling revenues and th e corresponding monetary flows as well as uses of 
these revenues, notably for domestic consumption and imports, should be reflected in the balance of 
payment accounting based on bank transactions, even if operators systematically withhold 
information on the level of their gambling revenu es.  The ECCB balance of payments statistics 
submitted by Antigua, however, do not show monetary inflows on the order claimed by Antigua.142  
The United States also observes that in certain y ears gambling revenues reportedly declined, e.g. in 
2003 by $693 million or an equivalent of 92 per cent of GDP, while GDP was up $40 million.143   
3.103  Lastly, the United States submits that the points pertaining to Antigua's explanation of its 
prior use of a 10 per cent of GDP estimate are some of the most plausible, and relevant, statements 
made by Antigua regarding its leve l of nullification and impairment:  In particular, the United States 
refers to Antigua's statement that this figure w as based on estimates of the direct impact of the 
industry on the country in the nature of salaries paid, domestic rents and purchases and similar direct 
expenditures;  and correlations made between est imated employment and the size of the overall 
domestic workforce. The United States believes this figure to be a more realistic assessment, since 
any government would notice economic inflows that  dwarfed the rest of its economy, because the 
                                                      
136 US written submission, paras. 31-32 and 36-37 and Exhibit US-2. 
137 US written submission,  paras. 33-35. 
138 US response to question No. 33 by the Arbitrator, para. 33. 
139 US response to question No. 33 by the Arbitrator, para. 34;  and US comment on Antigua response 
to questions Nos. 38, 39 and 40 by the Arbitrator, para. 59. 
140 US response to question No. 33 by the Arbitrator, para. 34. 
141 US response to question No. 36 by the Arbitrator, para. 53. 
142 US comment on Antigua response to questions Nos. 38, 39 and 40 by the Arbitrator, paras. 61-62. 
143 US response to question No. 36 by the Arbitrator, para. 53.  WT/DS285/ARB 
 Page 33 
 
 
 spillover effects on consumption and employment would be the main factors in overall economic 
growth or decline.144   
3.104  Antigua dismisses the comparisons by the United States between its claimed gaming revenues 
and its officially reported export and GDP data.145  Antigua holds that the ECCB data appears to be 
the source of both the IMF and WTO statistics cited by the US146 and that the ECCB confirmed that 
its data did not include revenues earned by operato rs who were licensed to engage in interactive 
wagering and gaming, since operators did not report.147  Antigua also disputes the relevance of 
historical comparisons of trade-GDP ratios, co mparisons with jurisdictions, where no remote 
gambling industries exist, or comparisons with the non-remote gambling sector.  It holds that remote 
gaming is an unprecedented form of trade and that th e only relevant comparisons in this arbitration 
should be between Antigua and si milarly situated small economies with a remote gaming industry, 
such as the Khanawake Territory, for which the GBGC data shows revenues from remote gaming of 
similar size to those of Antigua.148   
3.105  Antigua also finds fault with the way in wh ich the United States calculates export to GDP 
ratios.  It notes that the Unite d States increases the numerator (Antigua's goods and services exports) 
by the claimed level of remote gambling revenu es, but leaves the denominator constant (ECCB 
reported GDP).  Antigua claims that, in order to do this calculation correctly, the denominator would 
need to be increased by the value-added of re mote gaming to Antigua's GDP.  Making some 
assumptions about profits, as suggested by the US, Anti gua claims that, in this manner, its export to 
GDP ratio would be in line with comparator economies.149   
3.106  Antigua adds that besides unreported revenu es from remote gambling, expenditures would 
also have to be taken into account to determine the true impact on GDP of the remote gambling 
industry.  In particular, Antigua notes that, while  some domestic spending by  operators, on employee 
wages, facilities expenses and the like, might find their way into GDP – even if not actually reported 
by the operators – many would not.  In particular, Antigua states that the greatest expenditures of 
remote gambling operators, namely, financial servi ces, advertising, computers, servers and other 
hardware and software development, take place primar ily if not exclusively outside of the jurisdiction, 
i.e. large part of "inputs" are imported and a significant portion of profits are expatriated.150  It notes 
that both revenues and expenditures of Antiguan oper ators are not taken into account by the ECCB in 
establishing Antigua's GDP.151   
3.107  Finally, Antigua provides some additional reasons why revenues from remote gambling do 
not show up in GDP figures.  In particular, it states  that a substantial portion of the "knock-on" effect 
of remote gaming revenues in the economy may itself find its way back into the remote gaming sector 
or into other sectors of the Antiguan economy th at are under- or incorrectly reported or under-
represented (a not uncommon featur e of developing economies).  Specifically in regard to the 
question why the decline of the remote gambling secto r does not appear to affect GDP, Antigua states 
                                                      
144 US comment on Antigua response to question No. 37 by the Arbitrator, para. 57. 
145 Antigua's written submission,  para. 105. 
146 Antigua's written submission,  para. 102;  Exhibit AB-11. 
147 Antigua's written submission,  para. 102;  Exhibit AB-12:  More precisely, the letter by ECCB states 
that "the Statistics Act of Antigua and Barbuda cannot enforce an obligation on these entities to provide data".  Earlier, Antigua explained in its Methodology Paper, based on a telephone discussion with ECCB staff, that 
there had been "a low response rate by remote gaming operators to GDP-related surv eys" and the few that had 
responded to the GDP-related surveys "have not often reported a key component of GDP – profits" (footnote 5 to the Methodology Paper). 
148 Antigua comments on responses by the US, pages 19-20. 
149 Antigua comments on answers by the US, page 20. 
150 Antigua written submission:  para. 106;  and Anti gua comments on answers by the US, pages 20-21. 
151 Antigua comments on answers by the US, pages 20-21. WT/DS285/ARB 
Page 34  
 
 that to some extent activities within the repor ted sectors of the Antiguan economy influenced by 
remote gaming revenues have decreased  with the decline of the industry;  hence, it would not be usual 
to see a substitution effect within the economy, in  essence working to mitig ate losses as much as 
possible.
152  
(ii) Analysis by the Arbitrator 
3.108  Concerning the relationship between the GBGC  data for Antigua and Antigua's reported 
exports and GDP, e.g. pursuant to IMF statistics, we agree with the United States that (i) Antigua's 
alleged remote gambling export reve nue appear large relative to ot her exports by Antigua and as a 
percentage of GDP, and that (ii) even if revenues are not reported, there should be a trace of related 
transactions in Antigua's balance of payments.  On the first aspect, we take it that remote gambling is 
a relatively recent phenomenon and that that revenue margins, especially for early market entrants, 
may have been extraordinary initially and led to re venue levels that appear large in comparison to 
traditional export revenues.  We note that in other economies mentioned by the parties, revenues from remote gambling may also be large in comparis on to other export revenues and may lead to 
substantial increases in the trade to GDP ratio.  This may be even more so in smaller and less 
diversified economies traditionally running substantial current account deficits.
153  Nevertheless, from 
the limited information we have, we tend to agr ee that Antigua's initial revenue figures based on the 
May 2007 release of the GBGC database appear out of line by all historical standards.  The substantial 
revisions carried out by GBGC for its October 2007  release lends support to this assessment.  Even 
assuming that the October 2007 figures for Antigua in the early years had been correct (although those still appear generous), we have reason to be lieve that such extraord inary revenues must be a 
temporary phenomenon and are quickly competed aw ay.  We will discuss the question of competition 
further below, but note already that adjustments even to the October 2007 numbers appear necessary 
to bring them more in line with other economic statistics. 
3.109  On the second aspect raised in the previous para graph, we agree with the United States that 
sizeable export revenues would reflect a consider able value added in the Antiguan economy, and 
hence corresponding increases in GDP, unless counterbala nced by other positions in the balance of 
payments, notably imports.  In fact, it may well be that the net contribution of the remote gambling 
industry, despite substantial amounts of revenues, to  the external accounts and GDP is small, if, as 
Antigua notes, important gambling-related imports ( notably banking, advertising services etc.) exist 
and profits are transferred abroad with the indus try being mostly foreign-owned.  While Antigua 
claims that both revenues and expenditures are unr eported, the United States notes that the ECCB and 
IMF compile Antigua's balance of payments not onl y on the basis of company surveys (where remote 
gambling operators may not respond and, hence, neith er revenues nor spending may be reported), but 
also uses financial statements and foreign exch ange records reported by commercial banks, where 
some of those transaction should show.  We sought  clarification in this regard from both the ECCB 
and IMF.  In its letter dated 13 December 2007 the IMF confirms th at the balance of payments 
statistics for Antigua and Barbuda, which are compil ed by the ECCB and supplied to the IMF, do not 
separately identify remote gambling services and that the aggregate of personal, cultural and recreational services has a zero entry for all year  shown in the IMF's 2006 Balance of Payments 
Yearbook.  Moreover, the IMF notes that the survey report forms used by the ECCB do not indicate where gambling services are separately identified or covered and that the description of balance of 
payments data compiled by the ECCB and set out in  Part III of the Balance of Payments Yearbook 
                                                     
 
152 Antigua response to question 46(b) by the Arbitrator, page 38. 
153 We do not see much merit in the calculations pe rformed by Antigua that increase both its exports 
and GDP by the claimed revenues from remote gambling.  While it is true that it would be incorrect to adjust 
exports by this figure, but leave GDP unchanged if indeed it is affected, this is exactly what Antigua argues is 
not the case, since most of its revenues are counterbalance d by imports or expatriated profits, as will be further 
discussed below.  WT/DS285/ARB 
 Page 35 
 
 
 does not refer to gambling services.  However, the IMF also confirms that transactions related to 
gambling may be captured in the financial account, b ecause financial transactions are, to some extent, 
reported by commercial banks, and the transactions  of gambling site operators would be an 
undifferentiated component of higher level fina ncial account aggregates reported by these 
institutions.154  Likewise, transactions related to gambling, such as imports of business services and 
repatriation of profits by gambling site operators , should be covered in th e Yearbook data, but would 
be undifferentiated components of higher level aggreg ates as well.  The IMF concludes that it cannot 
determine how comprehensively the data are captured in practice.  Hence, we are confident that it 
would be equally difficult, if not impossible, fo r us to make an educated guess on balance-of-
payments entries of Antigua, which, in add ition, over recent years, do not show any unusual 
magnitudes or movements. 
(e) Absence of direct evidence of revenues of re mote gambling operators licensed by Antigua 
and comparison of GBGC remote gambling re venue data with revenue figures from other 
sources 
(i) Arguments by the parties 
3.110  The United States notes that that Antigua clai ms to have exempted operators licensed by 
Antigua from any form of official reporting requirements155, but then admits that financial statements 
for gambling companies with operations located in Antigua, which could give support or refute the 
GBGC data, are actually available to the government.156  The United States holds that Antigua should 
not be rewarded for failing to disclose such info rmation, which could have been provided with 
redactions or in summary tables for privacy concerns  or fears of prosecution.  It notes that Antigua 
does not even explain whether it has reviewed such fi nancial statements, or whether the data in those 
statements is in accord with the GBGC estimates .  The United States draws the conclusion that the 
actual data does not support Antigua's claims pursuan t to the GBGC data, or else it would have been 
used, and that adverse inferences may be drawn, when  a party to a dispute declines to provide relevant 
information.157   
3.111  Antigua confirms that Antiguan remote gaming ope rators are subject to a number of reporting 
obligations.  This includes the obligation to provid e the Directorate of Gaming of Antigua, at least 
once per year, access to and examination of the books, accounts and financial statements of each 
licence holder.158  However, Antigua declines to discl ose financial information from Antiguan 
operators, principally for the reason that the Unite d States has used filings of public companies as a 
basis for criminal complaints in the past.159  It only cites gross profits of US$895.7 million in 2005 
that five Antiguan remote gaming ope rators had confidentially reported to the Antiguan Directorate of 
Offshore Gaming (Division of Gaming, Financial Services Regulatory Commission).  This information is contained in a letter by the Di rector of Gaming to Mr. Mark Mendel, dated 
1 October 2007, written for the purposes of this proceeding.
160 
                                                      
154 While the United States, in its comments on the IMF letter, sees this point as a confirmation that in 
Antigua’s official economic statistics for its commercial bank transactions there are nowhere any levels of 
financial deposits approaching the billions of dollars of revenue claimed by Antigua, Antigua, commenting on 
the IMF letter, emphasizes that commercial banks in Antigua are not and have not been used by the remote gaming industry for gaming transactions.   
155 US response to question No. 1 by the Arbitrator, para. 3.   
156 US comments on Antigua responses to questions by the Arbitrator, paras. 22-23;  and Antigua 
response to question No. 28 by the Arbitrator, pages 27-28. 
157 US comments on Antigua responses to questions by the Arbitrator, paras. 22-23. 
158 Antigua response to question No. 28 by the Arbitrator, pages 27-28. 
159 Antigua response to question No. 27 by the Arbitrator, pages 26-27. 
160 Antigua written submission:  Exhibit AB-10. WT/DS285/ARB 
Page 36  
 
 3.112  Instead, Antigua provides alternative sources th at provide data for the remote gambling 
market of a similar order of magnitude as the GBGC data, including the United States General 
Accounting Office Report on "Internet Gambling:  An Overview of the Issues".
161  Antigua also notes 
that historical revenue estimates for the global remote gaming industry by Christiansen/Cummings 
Associates, Inc. (apparently, the name was later ch anged into Christiansen Capital Advisers, CCA), a 
US-based consultancy, were similar to GBGC data.162  Upon our request concerning the evolution of 
the size of the US market, Antigua specifically has provided data on US gross gambling revenues and, 
in addition, US internet gambling revenues from CCA published for the years 1995-1997 (gross 
revenues only) and 1999-2006 in the gaming pu blication "International Gaming & Wagering".163  
Data on the US market is also included in GBGC's Quarterly eGaming Statistics Report (May and 
October 2007 releases) on annual remote gambling revenues broken down by certain regions and 
countries, including the US, and by four types of gambling activities.  Antigua notes that the GBGC 
and CCA data on the US remote gaming market for 2006 are also on the same order of magnitude.164   
3.113  Antigua also provides revenue and employment data for the years 2001 (for some companies 
2003) to 2006 from publicly listed companies whic h are active in the online gambling business and 
some of which are licensed in Antigua.165  Antigua observes that there are wide disparities between 
the companies as far as revenues per employee are concerned.  This may be explained by the varying degree of customer service in an internet-b ased business, such as support centres for customer 
enquiries or wager acceptance over the telephone.  However, Antigua concludes that the reported 
revenues per employee multiplied by the number of employees are broadly supportive of the GBGC 
revenues reported for Antiguan operators.
166  In order to verify this, Antigua provides information 
from the Directorate of Gambling, inter alia , on the number of employees directly employed by 
licence holders for the 1998 (2000 for employment ) to 2007 time period (which replaces Antigua's 
earlier estimate of 3000 employees in 1999 that ha d taken into account both direct and indirect 
employment).167  Antigua also refers to a report commissioned by the European Commission in 2006, 
which provides estimates of total employment and revenues in the EC remote gaming industry 
resulting in approximately US$1 million of revenues per employee in 2006.168  It submits that such 
figures as well as comparisons to other e-commerce companies show how much revenue can be generated by a relatively small number of employees  in this highly automated, technical industry.
169 
3.114  The United States claims that the CCA data s hould not be given any weight, since Antigua 
did not provide copies of the cited CCA documents nor information as to CCA's sources.  Moreover, it claims that figures provided on the CCA website apparently do not match Antigua's description of 
CCA figures.
170  Upon our request for data on the size of the US remote gambling market, if not at the 
country level, but at least for individual stat es, the United States notes that, since the gambling 
services Antigua wishes to provide are currently criminal  in the US, there are no official US statistics 
on such activities.  It also states that it does not have information on any specific state's statistics on 
                                                      
161 Antigua comments on answers by  the United States, pages 3-7. 
162 Antigua's written submission,  paras. 95-98. 
163 Antigua response to question No. 24 by the Arbitrator, pages 19-20. 
164 Antigua response to question No. 25 by the Arbitrator, pages 23-25 and Exhibits AB-14(1) and 
AB-14(2).  Antigua also holds that US demand for remote gambling services, in particular in regard to sports 
betting, is "astronomical", providing, besides the GBGC estimates, further expert opinions as to its potential.  Antigua response to question No. 45(a) by the Arbitrator, pages 35-37. 
165 Antigua response to questions Nos. 22 and 30 by the Arbitrator, pages 19, 28-29 and Exhibit AB-17. 
166 Antigua response to question No. 30 by the Arbitrator, pages 28-29. 
167 Antigua response to question No. 21 by the Arbitrator, pages 18-19. 
168 Antigua comments on answers by  the United States, pages 6-7. 
169 Antigua comments on answers by the United States, page 22;  and Antigua responses to questions, 
Exhibit AB-17. 
170 US comment on Antigua response to question No. 24 by the Arbitrator:  paras. 55-56.  WT/DS285/ARB 
 Page 37 
 
 
 remote gambling.171  However, it provides consumption da ta (from statistics of the Bureau of 
Economic Analysis (BEA) of the US Depart ment of Commerce on personal consumption 
expenditures by type of product) for the non-remo te gambling market, including annual time series 
data from 1995 to 2006 on pari-mutual net receipts, 90 per cent of which are believed to be accounted 
for by betting on horseracing.172  
3.115  The United States contests that the revenues per employee data for various companies 
provided by Antigua can be used to estimate Anti gua's remote gambling revenues, since the sources 
of this data were not included with Antigua's answers173 and since the range of values presented is 
large and refers to "leading remote gaming companie s", supposedly at the exclusion of less successful 
online and gaming companies that would have revenues per employee at much lower values.174 
3.116  The United States concedes that the data provided by Antigua on the number of employees 
engaged in offering online gambling services appear  less unrealistic than its revenue predictions on 
the basis of GBGC data.  It also notes that empl oyment figures are significantly lower than Antigua's 
previously stated number of 3000 employees.  The Unite d States submits that this employment data is 
more useful than Antigua's revenue estimates in assessing the level of nullification and impairment.  
The United States notes that according to Antigua, in  the last five full calendar years (2002-2006), 
Antigua had an average of about 450 employees, although it is not known how many worked on 
gambling tied to United States citizens, or on a particular gambling activity, such as horse racing.175  
However, the United States also observes that the numbers of employees increased between 2002 and 
2005, while during the same time period the GBGC breakout for Antigua's remote gambling revenues 
shows a decline, calling further into qu estion the accuracy of the GBGC figures.176 
(ii) Analysis by the Arbitrator 
3.117  We think that the provision of informati on from Antigua's remote gambling operators 
directly, in particular financial statements, would certainly have been helpful.  However, it is not 
entirely clear whether the financial reporting re quirements by Antiguan remote gambling operators 
allow for this information to be retained with in the government.  Antigua only states that these 
companies have "to provide the Directorate, at least once per year, access to and examination of  the 
books, accounts and financial stat ements" (emphasis added).177  We consider that we are not in a 
position to pass judgement on the use of that sort of information in criminal proceedings in the United 
States in the past, nor do we need to.  Neverthele ss, we reckon that it should be possible to produce 
some kind of summary information even from a limited or informal information base on those 
companies that also takes account of the sensitivitie s involved in relation to company-specific data.  
While Antigua has not provided this type of inform ation, we recognize that it has made efforts to 
substantiate the order of magnitude of the GBGC data  in other ways.  In particular, we appreciate the 
collection of data on revenues per employment fro m publicly listed companies and the provision of 
historical employment data in the Antiguan remote gambling sector directly from Antigua's Directorate of Gaming.  We note quite some variation in the data between companies and years.  
Although this information may only allow for a rough estimation of average revenues, it provides at 
least for another reality check of the GBGC data.  We also note that the United States considers the 
                                                     
 
171 US response to questions Nos. 1 and 24 by the Arbitrator, paras. 3 and 30. 
172 US response to question No. 24 by the Arbitrator, para. 31. 
173 However, the US acknowledges that total annual revenue data of publicly listed gambling operators 
based in the UK is available on those companies' websites, but says it is not aware of a source of data for 
employment figures, or for a breakdown by activity or country.  US answer to question No. 22 by the Arbitrator, para. 24.   
174 US comments on Antigua response to questio n No. 22 by the Arbitrator, paras. 51-53. 
175 US comments on Antigua responses to questions by the Arbitrator, paras. 24-25. 
176 US comments on Antigua response to question No. 21 by the Arbitrator, para. 50. 
177 Antigua response to question No. 28 by the Arbitrator, pages 27-28. WT/DS285/ARB 
Page 38  
 
 employment data by Antigua to be "less unrealistic " than the GBGC revenue data and "more useful" 
in assessing the level of nullification and impairment.
178 
3.118  We also note that both Antigua and the United States have provided figures that can be used 
to model the development of the US market, which we deem to be an important element in the construction of a more r ealistic counterfactual.  
(f) Application of a multiplier to the remote gambling revenue data 
(i) Arguments by the parties 
3.119  The United States holds that there is no basi s under the DSU for "multiplying" trade effects 
by a factor to reflect other economic effects.  Mo reover, it observes that the purpose of a multiplier is 
to reflect effects on internal transactions within the Antigua economy – such as effects on the 
purchase of Antiguan goods or services by Antiguan gambling operators.  As such, the transactions 
which would serve as the basis for Antigua's sugg ested multiplier are not lost Antiguan exports, and 
thus are not properly included in a measurement of  Antigua's nullification or impairment of GATS 
benefits.  Moreover, the United States notes that Antigua cannot reconcile (1) its argument that 
gambling revenue has a 40 per cent carryover effect  on the Antiguan economy (as suggested by the 
multiplier it proposes), (2) its argument that gambling revenue dwarfs the rest of its economy, and (3) 
the fact that Antigua's official economic statis tics (leaving aside the reporting or non-reporting of 
direct gambling revenue) show no significant "multiplie r" effect from the allegedly massive influx of 
gambling revenue.  Even if direct gambling reve nue were under-reported, the United States argues 
that there is no basis for believing that all ot her economic figures on the Antiguan economy are not 
simply wrong, but are wrong in the exact way necessary to mask the effects of the allegedly massive 
increases and decreases of gambling revenue over the 1998 to 2006 period.
179   
3.120  The United States also notes that prior arbitra tions under Article 22.6 of the DSU calculated 
the level of nullification and impairment of the benefit under the covered agreement and not some 
broader measure of overall economic impact of non-compliance.180  It observes that the equivalence 
standard under Article 22.6 of the DSU would not be  respected if just the level of nullification and 
impairment was increased by a multi plier.  It points to Article 22.3 of the DSU (which sets out the 
principles to be followed in determining the sector  or agreement under which retaliation is to be 
sought) as the appropriate place for a consideration of broader economic elements, and sees no legal 
basis for this being done in the context of calcu lating the level of nullification or impairment under 
Article 22.6 of the DSU.181   
3.121  Antigua assumes that revenue losses by the Antiguan remote gambling industry led to 
additional losses in other sectors of the economy, lo wer income and government revenues.  It holds 
that these "indirect" effects need to be taken in to account on top of the direct trade effects in 
calculating the total level of nullification and impair ment and that multipliers are frequently used in 
economic modelling in that regard.182   
3.122  Antigua agrees that there is no precedent in wh ich arbitrators considered a multiplier, but 
declines that it was not allowable under the DSU.183  It also notes that the Arbitrator in EC – 
Bananas III (US)  contemplated indirect consequences, even if these ultimately were not taken into 
                                                      
178 US comments on Antigua responses to questions by the Arbitrator, paras. 24-25. 
179 US comments on Antigua response to questio n No. 46 by the Arbitrator, paras. 65-66. 
180 US written submission,  para. 45. 
181 US written submission, para. 45. 
182 Antigua's Methodology  Paper,  pages 8-9. 
183 Antigua's written submission,  para. 122.  WT/DS285/ARB 
 Page 39 
 
 
 account, and that multiplier effects were an  accepted feature of economic modelling.184  Antigua adds 
that just because multipliers have not been used in  past arbitrations, this should not mean that 
multipliers cannot or should not be used.  It also states that Antigua's status as a developing country 
Member should be relevant in this regard.185   
(ii) Analysis by the Arbitrator 
3.123  We observe that it is one of the rare points of  agreement between the parties to calculate the 
level of nullification or impairment on the basis of  the difference between actual and counterfactual 
Antiguan exports of remote gambling services to the United States that is due to the non-compliance 
by the defending party.  In other words, parties agr ee on the use of a "trade effects" approach that has 
also been used in previous arbitrations.  In add ition, we realize that the use of a multiplier reflecting 
the aggregate change in output for a unit change in  demand would be contrary to some of Antigua's 
other arguments concerning the limited impact  of remote gambling revenues on GDP.   
(g) Point in time, when US measures began to a ffect Antigua's exports of remote gambling 
services to the United States and loss of market share to competitors 
(i) Arguments by the parties 
3.124  The United States notes that Antigua bases its estimates, at least in part, on gambling exports 
for the years 2001-2002, which it argues were the high point of Antigua's exports of gambling services to the US.  The United States agrees with Anti gua that historical levels of internet gambling 
services are indicative of the level of nullification or  impairment.  It explai ns that although remote 
gambling has at all relevant times been unlawful unde r US Federal criminal statues, enforcement of 
those federal statutes against foreign operators offeri ng services over the internet has been difficult.  It 
concludes that historical levels of gambling services exports are instructive as to the levels that might 
exist if remote gambling had never been outlawed in the United States.
186  More precisely, the United 
States "can accept that exports in 2001-2002 are so mewhat instructive regarding the (unlawful) 
market in the United States for remote gambling services".187  However, the United States believes 
that any other effects that have influenced An tigua's exports of remote gambling services to the 
United States would need to be factored out fro m the calculation of the level of nullification and 
impairment.  In particular, the United States believ es that "any decline from 2001 levels would also be 
due to increasing competition from other gambling operators".188   
3.125  Concerning the "turning point" in time, in its answers to questions by the Arbitrator, the 
United States further elaborates that it agrees that that  historical levels are somewhat instructive as to 
the level of nullification and impairment resulti ng from United States non-compliance with the DSB's 
recommendations and rulings, but that it disagrees that  the US measures first began to affect Antigua's 
exports in 2001-2002 and that this is reflected in the GBGC data.189  The United States notes that its 
measures have remained unchanged th roughout the relevant time period.190  The United States notes 
in this regard that the Cohen prosecution and conviction took place in 1998 and 2000 respectively and 
that operators from other jurisdictions increased th eir operations in the US market after 2001, showing 
that the criminal laws cannot be the cause of any ab solute or relative loss of Antiguan market share in 
the provision of gambling services to US consumers.  The United States notes that Antigua's own data 
                                                      
184 Antigua's written submission,  para. 123-124. 
185 Antigua response to question No. 46(a) by the Arbitrator, pages 37-38. 
186 US written submission, para. 47. 
187 US written submission, para. 48. 
188 US written submission, paras. 42-43. 
189 US response to question No. 42 by the Arbitrator, paras. 55-56. 
190 US response to question No. 45 by the Arbitrator, para. 57. WT/DS285/ARB 
Page 40  
 
 shows a growth in exports to the United States by operators in other ju risdictions, showing the 
historical trend that Antigua is losing market shar e, and submits that Antigua's contentions about the 
changing United States enforcement environment were developed after the fact, in order to match the 
GBGC figures.
191   
3.126  Concerning other factors, notably competitors from other countries, the United States is of the 
opinion that US measures cannot be held responsible  for Antigua's loss of market share (especially on 
a worldwide scale), since US enforcement measures w ould have affected all providers in the United 
States market and not only Antigua.192  In addition, the United States refers to the observation in 
Antigua's methodology paper that the Antiguan Govern ment itself enacted stricter regulations in mid-
2001193, although Antigua claims that these regulations were enacted as a result of United States 
pressure.194   
3.127  The United States then moves on to discuss other factors that may be responsible for 
Antigua's drop in global market share and should not be attributed to US measures, notably low 
market entry barriers to internet gambling and the ensuing growth in competition from operators in 
other locations.195  According to the US, Antigua has not  provided any evidence that its remote 
gaming industry possesses particular attributes that might place its operators at an advantage as 
compared to competitors in other countries.196  It concludes that if internet gambling is a growing 
trend, as asserted by Antigua, Antigua would con tinue to lose market share to other nations.197  More 
specifically regarding the United States market, Antigua would face competition also from domestic 
providers, were the United States to legalize internet  gambling.  In contrast, up to the present, US 
criminal laws banning remote gambling have been a pplied rigidly to operators located in the United 
States while foreign operators have remained outsi de the reach of United States criminal laws.198  
3.128  The United States observes that Antigua's own data  indicates that is has lost market share to 
gambling service suppliers from other countries.199  Using the GBGC data (May 2007 release)200 the 
United States points to two time series showing An tigua's position relative to suppliers from other 
countries:  First, the United States observes that  Antigua's gambling revenues increased until 2001 
and then declined, while world revenues from North America ("online gross gambling yield by player 
location") increased continually.  According to  the United States this implies that non-Antiguan 
suppliers have been entering the United States market, and doing quite well.201  Second, the United 
States notes that the country-specific GBGC data provided by Antigua, including the data on Costa Rica, Curaçao and Malta, show increasing world re venues for all of these countries with the exception 
of Antigua.
202  The same is true for the South/Central America and Caribbean group in the regional 
breakdown of remote gambling revenues by operator location, which shows a smooth rising trend.  
The United States interprets this trend as evidence that the Antigua-specific allocations for 2001-2002 
are wrong, that gambling operators di versified their operations  by moving servers to  other locations in 
the region and/or that new gambling operators started up in the region.  Since the US measures apply equally to operators from Antigua and from other countries, including operators elsewhere in the 
                                                     
 
191 US response to question No. 42 by the Arbitrator, paras. 55-56, making reference to Antigua's 
written submission:  Exhibit AB-13, page 1. 
192 US written submission, para. 42;  and US response to question No. 48 by the Arbitrator:  para. 59. 
193 US written submission, para. 42. 
194 Antigua's Methodology  Paper, page 3. 
195 US written submission, para. 43. 
196 US written submission, para. 43. 
197 US written submission, paras. 42-43. 
198 US written submission: para. 44.   
199 US response to question 23 by the Arbitrator, para. 25. 
200 Antigua written submission:  Exhibit 2;  a nd Antigua Methodology Paper:  Exhibit AB-9. 
201 US response to questions Nos. 23 and 36 by the Arbitrator, paras. 27 and 47. 
202 US response to question No. 23 by the Arbitrator, para. 28.  WT/DS285/ARB 
 Page 41 
 
 
 South/Central America and Caribbean region, the Un ited States concludes that either Antigua never 
had as large a market share as it asserts, or (if Antigua did have a high, early market share), that share 
was lost as Antiguan operators moved servers to ot her countries in the region, or as a result of new 
competitors located in other countries in the regi on.  The United States also  observes that, according 
to GBGC, both the sports and non- sports betting have been growi ng in the United States market;  
hence, the data does not support Antigua's only explanation of how United States enforcement 
measures supposedly harmed Antiguan operators more  than other operators, namely that Antigua 
focuses on sports betting, as opposed to Internet poker.   The United States also notes that there is no 
reason to believe that the 2002 United States enforcem ent actions involving attempts to block credit 
card and PayPal payments to overseas gambling opera tors would have any greater effects on sports 
gambling than poker gambling, or any greater effe cts on Antiguan operators than operators in other 
jurisdictions.203   
3.129  The United States concludes that Antigua has pr esented no convincing reason to believe that 
United States actions could have such a dispr oportionate and unique effect on gambling service 
providers in Antigua as opposed to other gambling service providers located in other markets.  The 
United States cites Antigua as admitting that its in itially high market share was because it was an 
early entrant in the market,204 and that its initial market share eroded over time.205  The United States 
concludes that there is no information to support the conclusion that United States actions had any 
effect on Antigua's market share, nor is there r eason to believe that Anti gua would benefit uniquely 
from any future change in United States regulations.206 
3.130  Concerning timing, Antigua maintains that histor ical levels of remote gaming services exports 
by Antigua to the United States prior to 2002 are inst ructive as to the levels that might exist in the 
absence of the inconsistent measures.207  According to Antigua, 2002 is the year when measurable 
damages began to accrue, which is why it do es not propose any "lost revenues" for 2001 and 
earlier.208  Antigua also explains that for its constant  market share model it did not use the 2001 value 
of 59 per cent (but the 2003 share of 21 per cent), since it did not believe that this was a realistic 
market share number, given the growth in global remo te gaming generally and, in particular, the fact 
that much of that growth was occurring in areas su ch as poker that were not the major market segment 
served by Antigua.209  
3.131  Concerning other factors causing the decline in Antigua's exports of remote gambling services 
to the United States, Antigua dismisses the United States arguments.  While it admits that it was 
inevitable that it lost some market share globally as the result of the growth of poker on the internet 
and the growth of remote gaming in other parts of  the world, Antigua is primarily a United States 
facing, sports betting jurisdiction and therefore mo re severely affected by the US measures than 
operators in other locations.210  Antigua claims that the three hi ghest profile prosecutions of foreign 
remote gaming brought by United States authorities in  the past few years have  been brought against 
operators with Antiguan licensed subsidiaries and s ubstantial Antiguan operations, whereas to date the 
United States has not prosecuted any remote gami ng operators licensed and located in European 
jurisdictions, such as Gibraltar, Malta and Guern sey, nor has it prosecuted any operators licensed by 
the Khanawake Mohawk Tribe of Canada.  It go es on to state that the 2001-2003 time frame saw a 
                                                      
203 US comments on Antigua responses to questions by the Arbitrator, paras. 20-21. 
204 Antigua written submission, para. 115. 
205 Antigua written submission, Exhibit 2. 
206 US response to question No. 23 by the Arbitrator, para. 29. 
207 Antigua's Methodology  Paper, pages 2-3. 
208 Antigua response to question No. 42 by the Arbitrator, page 33. 
209 Antigua response to the question No. 43 by the Arbitrator, pages 33-34. 
210 Antigua's written submission,  paras. 117-119;  and Antigua comments on responses by the United 
States, page 16-17. WT/DS285/ARB 
Page 42  
 
 large number of operators move from Antigua to Eur opean jurisdictions that were perceived as being 
less likely targets of United States efforts than Antigua.
211   
3.132  Antigua provides a time line of actions by  the United States and other major events212 that are 
each said to have an adverse impact on the Antiguan remote gaming industry.213  As an early entrant 
in the remote gambling market, Antigua professes its confidence that in the absence of the US 
measures, it would have stood a good chance of  successfully competing against potential new 
entrants.  Antigua attributes its competitive edge  to innovative product offerings, experience and 
particular knowledge of the Ameri can sports betting market, location in a time zone convenient to US 
consumers and tax advantages allowing for larger oper ating margins.  Antigua is convinced that its 
competitive advantage would also play out against potential US competitors.214  I t  r e c o m m e n d s  
abstaining from speculations about new entrants and rely on historical information.215 
3.133  Antigua concludes that the decline in the Antigua n industry is solely attributable to the United 
States actions and hat no adjustments should be made  to the counterfactual le vel of exports for any 
other possible factors, including the introduction of "stricter regulations" by Antigua itself in 2001, 
which it claims came as a result of di rect pressure from the United States.216  It holds that its fixed 
revenue and constant growth m odels produce conservative estimates  of counterfactual exports and 
that its constant market share model already refl ects the loss of overall market share that Antigua 
experienced due to factors perhaps unrelated - or less related - to the activities of the United States 
government.217 
(ii) Analysis by the Arbitrator 
3.134  We note that both Antigua (in two out of three m odels) and the United States in its alternative 
approach (described in section III.D.2(a) below) use the year 2001 as the point in time after which the 
US measures began to affect Antiguan export of re mote gambling services to the United States.  Also, 
we do not see any concrete proposal by the parties for an alternative "turning point".  While the 
United States emphasizes that its measures have been  in place for a long time before that date, it also 
acknowledges that enforcement has been difficult agai nst foreign remote gambling providers and that 
it "can accept that exports in 2001-2002 are somewhat  instructive regarding the (unlawful) market in 
the United States for remote gambling services".218   
3.135  Nevertheless, as foreshadowed above in section III.D.1(d), we must take into account that 
other factors, over time, in particular an increase of competition, may have affected Antigua's 2001 
levels of remote gambling revenues even in the absence of the US measures.  In order to not to falsely 
attribute such declines in revenue to the US meas ures, we are mindful of the fact that the US 
measures, in particular the enforcement actions involving the prohibition for credit card companies 
and systems such as PayPal to make payments to overseas gambling operators, are capable of affecting all providers, and not only those from a par ticular country of origin.  As far as the risk of 
criminal proceedings is concerne d, all remote gambling operators a priori  seem to be an equally likely 
target, even though a number of Antiguan operations  may have been subject to prosecution in the 
past.   
                                                     
 
211 Antigua response to questions Nos. 43 and 44 by the Arbitrator, pages 33-35;  and Antigua 
comments on responses by the US, page 16-17. 
212 Antigua's written submission,  Exhibit AB-13. 
213 Antigua's written submission,  para. 114. 
214 Antigua's written submission,  paras. 115-116. 
215 Antigua's written submission,  paras. 120-121. 
216 Antigua methodology paper, pages 2-3;  and Antigua response to question No. 44 by the Arbitrator, 
pages 34-35. 
217 Antigua response to question No. 44 by the Arbitrator, pages 34-35. 
218 US written submission, paras. 47-48.  WT/DS285/ARB 
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 3.136  In particular, we recognize that the GBGC data shows that world revenue from North 
America has continued to rise and that the indivi dual countries from South/Central America and the 
Caribbean as well as the region as a whole have al so experienced further increases in their overall 
revenues.  It seems fair to us assume that c ountries in the region (as opposed to say European 
providers) are not unlikely to be actual competitors of Antigua in the United States market, since they 
benefit from some of the same advantages (possibly more similar cost structures, time zones and the 
like).  We see no reason to believe that these countries would be affected differently by the US measures than Antigua.  Hence, part of Antig ua's loss may be a reflection of its loss in 
competitiveness vis-à-vis its competitors and their incr ease in revenues at Antigua's expense.  In the 
light of this, we do not think it would be appropria te for us to follow Antigua's proposition that its 
revenue loss is entirely due to the US measures and that no adjustments to reflect relative shifts in 
competitiveness need to be made. 
3.137  But we do not believe either that Antigua's loss in market share has nothing to do with the US 
measures and is entirely due to new entrants and co mpetitors.  While Antigua might have lost market 
share to competition in any event, it may have seen its  revenues decline by more than it would have in 
the absence of the US measure.  In trying to di sentangle these impacts, we find it less helpful to look 
at Antigua's global market share, as the United St ates does in its alternative approach summarized 
below in section III.D.2(a), which may be affected  by developments in ot her markets and gambling 
activities, in which Antigua is not present, and in re lation to providers, against whom Antigua is not 
actually competing.  Instead, as suggested above, we  do believe that it is important to consider 
Antigua's relative position vis-à-vis competitors that ar e competing in the US market and are likely to 
be equally affected by the US measure.  If this is so, we may not be able to follow either one of the 
two extreme (all or nothing) approaches proposed by the parties. 
3.138  An additional consideration regarding compe tition needs to be made as a function of the 
counterfactual scenario chosen.  As discussed above  in section III.C, Antigua's approach presumes 
that it would continue to provide remote gamb ling services under the same conditions it faced in 
2001, i.e. in the absence of competition from domestic  providers in the US.  However, if the cross-
border provision of remote gambling services were to  be legalized, this would likely apply to both 
foreign and domestic providers.  In the absence of  any historical experience, any assumption about 
how Antigua would fare in such a situation be longs to the realm of pure speculation.  As a 
consequence, Antigua's scenario, which complete ly disregards the possible entry of domestic 
competitors, seems clearly deficient to us.
219 
3.139  For the moment, the only evidence we have for a competitive situation to exist that includes 
domestic providers is in the remote betting mark et on horseracing.  Antigua's observation that its 
operators do very little business in horse race betting220, certainly for a range of commercial 
considerations, could, at least in part, be also re lated to the intensity of competition in a segment of 
the market, where domestic and foreign provide rs already compete with one another.   
                                                      
219 As noted in paragraph 3.73 in the separate opinio n of one of the arbitrators, the issue of potential 
domestic competition would need to be taken into account if the counterfactual proposed by Antigua was 
followed.  Therefore, if the level of  nullification or impairment were to be calculated under the counterfactual 
proposed by Antigua, the Arbitrator notes that further adjustments would need to be made in that regard, in addition to the ones we undertake below in section III.D. 3 to reflect foreign competition and domestic demand.   
220 Antigua response to question No. 10 by the Arbitrator, page 15. WT/DS285/ARB 
Page 44  
 
 (h) Comparison of actual and counterfactual exports of Antigua's remote gambling services to the 
United States 
(i) Arguments by the parties 
3.140  The United States agrees with Antigua on the b asic concept that the difference between the 
actual amount of exports that are affected by the WTO-inconsistent measure and the amount of 
exports in a "counterfactual" scenario, whereby th e offending party has brought the WTO inconsistent 
measure into conformity within the reasonable period of time, typically represents the level of nullification or impairment.
221  From parties' original written submissions, hence, it appears that there 
is agreement that the appropriate point in time fo r making the comparison between the actual level of 
exports and the calculated counterfactual is the end of the reasonable period of time, in this case 3 
April 2006.222  However, the United States later states that  the precise point in time in that regard 
should be the date of referral of the matter to arb itration, as this was the date when the terms of 
reference of the arbitrator were established.223   
3.141  Concerning Antigua's projection of industry reve nues into the future (2012, until which date 
GBGC industry projections are available), averaging and discounting to the year 2007224, the United 
States does not directly address this assumption, bu t refers to the counterfactual as a hypothetical 
situation in which the responding party brought the WTO-inconsistent measure into conformity within  
the reasonable period of time, which appears to pr eclude consideration of de velopments beyond that 
date.225 
3.142  Antigua further elaborates in this regard that in  order to determine the level of nullification or 
impairment it needs to be determined what th e annual prospective Antiguan exports of remote 
gambling and betting services to the United States would be if the United States had come into 
compliance on 3 April 2006.  Antigua is of the opinion that this is not to say that in developing the counterfactual and coming to a determination of th e level of those "annual prospective exports" only 
information as of that date is to be taken into consideration.
226  At the same time Antigua argues that 
while the end of the reasonable period of time marks the point at which Antigua's trade loss begins to 
accrue, this does not mean that the level of An tigua's nullification or impairment should be 
determined by reference to a "snapshot" of sorts on that date.  It argues that a 3 April 2006 "snapshot" 
would miss the enactment of the UIGEA in Octobe r of that year, which Antigua claims has had a 
massive adverse impact upon the actual amount of reve nues that Antiguan operators are able to earn.  
This is why Antigua proposes to use projections up  to the end of 2012.  Antigua argues that using 
historical data combined with reasoned, professional estimates of developments in the market in the 
foreseeable future and averaging these figures is  a reasonable and generally accepted method for 
addressing anomalies that might arise in one year as opposed to another.  It also notes that averaging 
has played a role in several previous arbitrations.227   
(ii) Analysis by the Arbitrator 
3.143  We understand it to be part of our task to de termine what the level of Antiguan exports of 
remote gambling services to the United States would have been had the United States come into 
compliance within the reasonable period of time, i.e. by 3 April 2006.  As such, that date (or the time 
                                                      
221 US written submission,  para. 14;  Antigua's Methodology  Paper,  page 3. 
222 US written submission,  para. 14;  Antigua's methodology paper,  page 6. 
223 US response to question No. 41 by the Arbitrator, para. 54. 
224 Antigua's Methodology Paper,  page 8. 
225 US written submission,  para. 14. 
226 Antigua response to question No. 41 by the Arbitrator, page 33. 
227 Antigua response to question No. 47 by the Arbitrator, pages 38-39.  WT/DS285/ARB 
 Page 45 
 
 
 period coming closest to that date for which statisti cal information is available) seems to impose itself 
as the relevant point in time at which a comparison of  actual and counterfactual exports is undertaken.  
Both Antigua and the United States are doing this in their model, projecting counterfactual levels of 
exports to the year 2006, since no observations at shorter intervals (quarterly, monthly) appear to be available.   
3.144  We do not think that forecasts beyond  that date should have an impact on the counterfactual 
level of Antiguan exports of remote gambling servi ces to the United States that would have existed at 
that date in the absence of the Un ited States measures.  If forecasts of future exports were to be taken 
into account (and these would be assumed to be larg er or even growing compared to historical 
values), the discounted and averaged value calculated in this manner may well be larger than the level 
that would actually have been observed had the Unite d States come into compliance at the end of the 
reasonable period of time.  Such a procedure may viol ate the equivalence standard we are mandated to 
pursue.  In particular, different time horizons wo uld result in different levels of nullification or 
impairment that bear no relation to questions of actual compliance.   
(i) Concluding remarks 
3.145  The United States challenges most of Antigua's proposed methodology, notably its 
counterfactual and underlying data.  It also disag rees with key modelling assu mptions, in particular 
the attribution of all developments concerning Antigua's actual remote gambling revenues to US 
measures and the use of an economy-wide multiplier.   With these fundamental concerns, the United 
States does not go into further detail on some calcu lations (for instance regarding the discount rate 
used by Antigua) nor does it address the question whet her one of the models proposed by Antigua was 
preferable over another.  Instead, it proposes an alternative counterfactual as well as modelling 
approach and calculations altogether. 
2. Review of the approach proposed by the United States 
(a) Description of the approach proposed by the United States 
3.146  As discussed above, the United States cont ests the counterfactual proposed by Antigua, 
namely a measure that would allow for all types of cross-border gambling services.
228  It holds that 
one means to come into compliance would be for the United States to ensure that domestic service 
suppliers are also prohibited from supplying remote betting services on horseracing as the area where a discriminatory treatment between domestic and foreign service suppliers was found by the 
compliance panel.
229  The United States observes that in the latter case the level of nullification and 
impairment would be zero, but does not pursue th is approach as an alternative to Antigua's 
calculation.230  Instead, it recalls that the DSB recommenda tions and rulings were addressed to the 
discriminatory treatment of gambling on horseracing.  From that it concludes that a counterfactual 
scenario could be taken as a basis for the calculati on of the level of suspension of concessions where 
"the United States were to adopt measures that a llow Antiguan operators (and operators in all other 
WTO Members) to provide cross-border remote gambling services on horseracing ".231  On the basis 
of its proposed counterfactual, the United States seeks to establish what the level of exports from 
Antigua to the United States of remote bettin g services on horseracing would be absent any 
discriminatory treatment.   
                                                      
228 US written submission ,  para. 19. 
229 US written submission,  para. 15. 
230 US written submission, paras. 15 and 17. 
231 US written submission,  para. 19, emphasis added. WT/DS285/ARB 
Page 46  
 
 3.147  For export data by Antigua, the United States relies on publicly available services trade 
statistics by the ECCB, IMF and WTO.  Finding that  the respective statistics from these three sources 
are of a similar magnitude, the United States take s as a starting point for its own calculations the 
WTO figure of Antigua's "other commercial servic es" exports in 2001 ($47 million), which it sees as 
"a hard cap on the absolute highest figure of Antigua's gambling service exports in 2001"
232, since it 
both comprises exports to the world (not just the United States) and more than just gambling services 
exports.233   
3.148  The United States then seeks to determine the share of Antigua's remote gambling services 
exports on horseracing.  In the absence of govern ment statistics on remote gambling in the United 
States (both overall and on breakdowns by type of gambling activity), the United States supplies 
publicly available government statistics from the we bsite of the Bureau of Economic Analysis (US 
Department of Commerce) on non-remote gambli ng in the United States showing that horserace 
gambling accounts for no more than 7 per cent of total gambling in each of the years 2003 to 2006.234  
It then applies the 7 per cent share to the US$47 million of Antigua's other commercial services exports to arrive at US$3.3 million worth of exports.  It then corrects this figure for the impact of 
competition on Antigua's export revenues by reducing it in the same proportion as the fall in Antigua's 
share of global remote gaming reve nue according to the GBGC report
235, i.e. by multiplying it with 
the term 7 per cent (in 2006) over 50 per cent (in 2001), to arrive at US$462,000 or approximately 
US$500,000.  The United States concludes that the latter number constitutes the annual level of 
nullification or impairment, with the US$3.3 million figure serving as an upper limit.236 
3.149  Besides its earlier arguments that the United States has failed to overturn the presumptions 
established by Antigua's proposed methodology on any point237, Antigua provides specific arguments 
dismissing the methodology proposed by the US, in particular on the grounds of the underlying counterfactual and data used.  In the following, we  will review the arguments by the parties on the 
major concerns raised in relation to  the approach proposed by the US. 
(b) Antigua's exports of remote gambling services on horseracing  
(i) Arguments by the parties 
3.150  As discussed above, Antigua challenges the co unterfactual presumed by the United States on 
a number of grounds.
238  Therefore, it initially has not argued for a different estimate of the share of 
betting on horseracing in Antigua's  overall exports of remote gambling services, since it considered 
that share to be of no relevance to this Arbitrati on.  In addition, it notes that if only horseracing was 
important, the United States would not seek to  withdraw its relevant GATS commitments.239  Antigua 
also believes that its operators do very little bus iness in horse race betting, but says it does not possess 
                                                      
232 US written submission,  para 49. 
233 To further shore up that number the US notes that Antigua, in its recourse to Article 22.2, had stated 
that its "gambling and betting services sector accounted fo r more than ten percent of the gross domestic product 
of Antigua and Barbuda" and that this share, on th e basis of ECCB GDP information, resulted in gambling 
service exports to the entire world in 2001 of US$ 68 million (US written submission,  para. 50).  This 
calculation appears to again confuse exports  with GDP as a value added concept. 
234 US written submission,  paras. 25 and 51;  Exhibit US-1. 
235 Antigua's MP:  Exhibit AB-2. 
236 US written submission,  para 53. 
237 Antigua written submission, para. 71. 
238 Antigua's written submission, paras. 77-94. 
239 Antigua comments on answers by the US, page 15.  WT/DS285/ARB 
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 precise statistics for Antigua operators.240  It notes that GBGC does not provide a breakdown of 
Antigua's remote gambling revenues by type of gambling activity.241 
3.151  Nevertheless, Antigua seeks to provide altern ative statistics to the ones proposed by the 
United States that may give some indication of the share of betting on horseracing in overall gambling 
activities.  For one, Antigua makes reference to a 2002 report on remote gambling by the journal 
"International Gaming & Wagering Business" mentioning a 22 per cent share of horse racing in the 
American market.242  Antigua also provides CCA's annual br eakdown by type of gambling activity for 
the years 1995-1997 and 1999-2006 on United States Gross Annual Gaming Revenues excluding remote gambling revenues, publis hed in various volumes of "International Gaming & Wagering."
243  
If pari-mutuel betting is supposed to mostly relate  to betting on horse races, as conjectured by the 
US244, revenues in that category almost stay constant over those years with the overall market more 
than doubling.  This results in a declining share from about 8 per cent in 1995 to 3 per cent in 2006.  
Antigua also provides data from GBGC's Quarterl y eGaming Statistics Repo rt (May and October 
2007 releases) on annual remote gambling revenues br oken down by countries, including the US, and 
by four types of gambling activities, including sportsbetting which may be presumed to comprise 
betting on horse racing.245  GBGC data also includes time se ries data for the world and several 
geographical regions providing a breakdown of gambling revenues from online and offline betting on 
horseracing combined.246 
3.152  The United States defends the use of its proposed  share considering it to be reasonable to 
assume that there is a correspondence between the le vels of remote and non-remote versions of the 
same types of gambling.  It also notes that Anti gua, in its written submission, has not argued for a 
different estimate of the ratio between horserace remote gambling and all remote gambling.247  
According to the US, the 7 per cent ratio can then be used as a reasonable estimate of Antigua's ratio 
of horserace remote gambling exports to total remote gambling exports.248 
3.153  The United States also states th at absent information by Antig ua based on consultation with 
its own operators, an allocation based on non-remote  gambling in the United States provides the best 
basis for an estimate.249  It also states that the allocation of 22 per cent of the total amount of remote 
wagers placed by customers in th e United States on horse races quot ed by Antigua from a 2002 report 
published by "International Gaming & Wagering Business"250 should not be relied upon in this 
proceeding, since a copy of this report was not provided by Antigua for comments as to its contents.
251 It also dismisses the GBGC data, which only provides global figures of remote and non-
remote gambling revenues from horseracing.252 
                                                      
240 Antigua response to question No. 10 by the Arbitrator, page 15. 
241 Antigua response to questions Nos. 15 and 18 by the Arbitrator, pages 15-16. 
242 Antigua response to questions Nos. 15 and 18 by the Arbitrator, pages 15-16. 
243 Antigua response to question No. 24 by the Arbitrator, pages 20-23. 
244 US written submission, Exhibit US-1. 
245Antigua response to question No. 25 by the Arbitrator, pages 23-25 and Exhibits AB-14(1) and 
AB-14(2). 
246 Antigua response to questions by the Arbitrator, Exhibits AB-14(1) and AB-14(2). 
247 US response to question No. 16 by the Arbitrator, para. 22. 
248 US response to question No. 17 by the Arbitrator, para. 23. 
249 US comment on Antigua response to question No. 10 by the Arbitrator, para. 47. 
250 Antigua response to question No. 15 by the Arbitrator, page 17. 
251 US comment on Antigua response to question No. 15 by the Arbitrator, para. 48. 
252 US response to question No. 36 by the Arbitrator, para. 44.   WT/DS285/ARB 
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 (ii) Analysis by the Arbitrator 
3.154  We note that all of the proposed figures for the share of Antigua's exports of betting services 
on horseracing to the United States are quite approxi mate, albeit in different respects.  One weakness 
of all of the proxies is that they refer to cons umption as opposed to production shares.  Hence, they 
denote the distribution of shares among differe nt gambling activities demanded, which may be 
different from the composition of Antigua's remote gambling services supplied to the US.   
3.155  The 7 per cent share from the US Bureau of  Economic Analysis has the advantage of 
referring to the US market (and not to a larger ge ographical region), but covers the non-remote market 
only.  It is not unreasonable to assume that certain gambling activities are more or less enjoyable than others depending on whether they are carried out in s itu or remotely.  Hence, the shares of different 
gambling activities may vary in the remote and non-remote market.  The shares from CCA (referring 
also to non-remote pari-mutuel betting, i.e. principally betting on horseracing, in the United States) 
fall in the same range of figures, at least for the earlier years.  
3.156  The GBGC data contains figures on the remote market in the US, but only provides rougher 
aggregates of gambling activities, notably spor tsbetting, which supposedly includes betting on 
horseracing.  Alternatively, GBGC provides data on betting on horseracing combining the remote and 
non-remote market, but this data is only available at the regional level.  Finally, Antigua cites a 22 per 
cent share of remote betting on horseracing according to a journal article.  However, that number seems somewhat out of line with the GBGC data a nd we are unaware of any particular popularity of 
horseracing in the United States compared to other countries that would justify a substantial difference in these shares.   
3.157  It seems that the best approximations under th e circumstances are the Bureau of Economic 
Analysis share for the non-remote market on betting in horseracing in the United States or the GBGC 
figures, which have the advantage of referring to the remote (or at least the combined remote and non-
remote) market, but employ larger aggregates in terms geographical regions or gambling activities. 
(c) ECCB/IMF/WTO data on Antigua's services expor ts and alternative revenue estimates 
(i) Arguments by the parties 
3.158  Antigua notes that IMF and WTO data are based upon information reported by the ECCB.
253  
It states that the ECCB, by its own admission, does not capture the revenues or expenditures of the 
Antiguan remote gambling industry in its entirety.  In that regard, it recalls the ECCB statement in 
connection with its overall data gathering that a major problem has been  weak survey response.254  
Antigua further explains that there is no legal oblig ation on behalf of the remote gaming operators (or 
any other private component of the Antiguan economy for that matter) to answer ECCB surveys or 
respond to ECCB enquiries.255  Antigua expresses the view that trying to extrapolate remote gaming 
revenues from flawed GDP data cannot be done in any meaningful manner.256   
                                                      
253 Antigua's written submission,  para. 102;  Exhibit AB-11. 
254 Antigua comments on answers by the US, page 23;  and Antigua's written submission,  para. 102;  
Exhibit AB-12.  More precisely, the letter by ECCB states that "the Statistics Act of Antigua and Barbuda 
cannot enforce an obligation on these entities to provide da ta".  Earlier, Antigua has already explained in its 
Methodology Paper, based on a telephone discussion with ECCB staff, that there had been "a low response rate by remote gaming operators to GDP-rel ated surveys" and the few that had responded to the GDP-related surveys 
"have not often reported a key component of GDP – profits" (footnote 5 to the Methodology Paper). Antigua 
methodology paper, page 2, footnote 5. 
255 Antigua response the question No. 39 by the Arbitrator, page 32. 
256 Antigua response the question No. 38 by the Arbitrator, page 32.  WT/DS285/ARB 
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 3.159  Antigua also notes that the alternative data pr oposed by the United States is only supported by 
ECCB figures that does not include the relevant da ta (remote gambling revenues), while the data it 
uses in its proposed approach (GBGC) data is supported by several sources.257  
3.160  The United States maintains that the IMF and WT O remain the best available source of data 
on the level of Antigua's services exports and claims  that Antigua has not established that IMF and 
WTO data do not include export revenues associated  with Antiguan gambling operators.  It observes 
that, at most, Antigua has shown that the ECCB wa s unable to include in its figures data on Antiguan 
gambling operators, because Antigua has chosen to shield those companies from any disclosure 
requirements.258  The United States also observes th at the ECCB in its letter to Antigua259 only states 
that the GDP figures for Antigua do not include revenues earned by operators who are licensed to 
engage in interactive wagering and gaming, but that the ECCB does not comment on whether these 
revenues were included or not in its  balance of payments information.260  Finally, the United States 
holds that if no direct data is available on Antigua 's exports of gambling services, then this would also 
include the GBGC data.  The United States also not es that in none of the IMF Annual Article IV 
consultations with Antigua, nor in the WTO Trade Policy Reviews has the service trade data in the 
balance of payments been questioned.261 
3.161  To provide further support for the order of ma gnitude of its calculations, the United States 
proposes three other ways to estimate Antigua's ex ports of remote gambling services to the United 
States on the basis of figures that Antigua has mentioned itself.   
3.162  First, the United States takes the statement by An tigua in its request pursuant to Article 22.2, 
namely that its "gambling and betting sector acc ounted for more than ten per cent of the gross 
domestic product of Antigua and Bar buda", to be about the relative si zes of Antigua's exports to its 
GDP, concluding that Antigua's gambling services expor ts to the entire world must have been on the 
order of $68 million, if the GDP of 2001 is taken as a basis for that calculation.262   
3.163  Second, the United States proposes to take th e US$15.8 million figure for wages and salaries 
earned in the Antiguan internet gambling industry in  2001, as per Antigua's statement in para. 66 of 
its written submission, as a basis for estimating Antigua's net revenues from remote gambling.  
Making some assumptions about labour and profit  shares, the United States estimates total net 
revenues to be between US$136 million and US$190 million depending on the precise shares chosen, 
which it calls a reasonable estimate of net revenues based on Antigua's own allegation of salaries of gambling operators.
263  The United States concludes that this type of approach is the only means of 
determining historical Antiguan gambling revenu es that would comport with economic reality.264 
3.164  Third, at the oral hearing, the United Stat es observed that the 2007 Trade Policy Review on 
Antigua and Barbuda, Report by the Secretariat265 stated that interactive wagering and/or gaming 
operators in Antigua enjoyed the same tax exemptio ns as offshore financial services companies, with 
the exception of an income tax of 3 per cent in troduced in 2001 by the International Business 
                                                      
257 Antigua comments on answers by the US, page 25. 
258 US response to question No. 35 by the Arbitr ator, para. 39;  and US comments on Antigua 
responses to questions by the Arbitrator, paras. 31-32. 
259 Antigua's written submission, Exhibit AB-12. 
260 US response to question No. 36 by the Arbitrator, para. 52.   
261 US response to question No. 36 by the Arbitrator, para. 52;  and US comment on Antigua response 
to question 39 by the Arbitrator, para. 59. 
262 US response to question No. 34 by the Arbitrator, para. 36.  See also the discussion above in 
section III.D.1(d)(i). 
263 US response to question No. 33 by the Arbitrator, para. 35. 
264 US response to question No. 35 by the Arbitrator, para. 41. 
265 Document WT/TPR/S/190/ATG, 1 October 2007 WT/DS285/ARB 
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 Corporation (Amendment) Act, 2001.  Tax records c ould then be used to calculate the operators' 
income, i.e. gross take-in minus payouts to client s on bets.  Since the Antigua Government did not 
provide any comments on the WTO Secretariat report in  that regard, this information would need to 
be assumed to be correct.
266 
3.165  On the first point, Antigua concedes that it ca nnot trace the source of that statement, which 
appear to relate to the year 1999.  Antigua believes th at the statement could be attributable in whole or 
in part to (i) basic ignorance within the government as  to the true size of the remote gaming industry;  
(ii) estimates on the direct impact of the indust ry on the country in the nature of salaries paid, 
domestic rents and purchases and similar direct expe nditures;  and (iii) correlations made between 
estimated employment and the size of the overall domestic workforce.267 
3.166  Antigua rejects also rejects the second approach  as being full of conjecture.  It asserts that 
none of the figures are supported by any data, nor is there any support for the assumptions made and 
methodology used by the United States.268   
3.167  Finally, in regard to income taxation, Antigua  counters that the three per cent tax introduced 
in 2001 was repealed in 2003 and has never been imposed , implemented or collected.  It clarifies that 
the only direct fees paid by remote gaming operators  to the Antiguan government are in respect of 
licensing and related fees in the nature of "flat" fees.269 
(ii) Analysis by the Arbitrator 
3.168  We note that the WTO services trade data on An tigua used by the United States is based on 
information from the IMF, which in turn has been  sourced from the ECCB.  The ECCB in its letter 
confirms that revenues by Antiguan remote ga mbling operators are not included in its GDP 
accounting for Antigua.  In addition, the IMF, in its  letter dated 13 December 2007, confirms that the 
balance of payments statistics for Antigua and Ba rbuda are compiled by the ECCB and supplied to the 
IMF and that the IMF does not conduct any independent data collection of importers or exporters of gambling services.  As mentioned above in paragraph 3.109, the IMF further explains that the data 
supplied by the ECCB does not separately identify remote gambling services, that the aggregate of 
personal, cultural and recreational services has a zer o entry for all year shown in the IMF's 2006 
Balance of Payments Yearbook, that survey re port forms used by the ECCB do not indicate where 
gambling services are separately identified or covered, and that the description of balance of payments 
data compiled by the ECCB and set out in Part III of the Balance of Payments Yearbook does not refer to gambling services.  Hence, if we must assume that the available balance-of-payments 
information on Antigua does not include revenues from remote gambling, it does not seem justified to 
us to use aggregates, such as "o ther commercial services", as an upper limit for the calculation of the 
level of counterfactual exports knowing that this aggregate maybe should, but does not contain the 
required information.  Also, as we mentioned befo re in paragraph 3.109, in regard to other 
transactions related to gambling, the IMF concl udes that it cannot determine how comprehensively 
the data are captured in practice, and we have not ed that there are no unusual movements in other 
BOP entries, such as the debit position of various  business services in the current account or of 
investment income, that could, (even vaguely) be related to changes in the use of remote gambling 
revenues and allow for an educated guess of their size.   
3.169  Concerning the three alternative "back-of-the-e nvelope" calculations mentioned by the United 
States, we note that the one approach using repor ted wages and salaries in the Antiguan industry as a 
                                                     
 
266 US remarks at the oral hearing on 18 October 2007. 
267 Antigua response to question No. 37 by the Arbitrator, pages 30-31. 
268 Antigua comments on US response to question No. 35 by the Arbitrator, page 22. 
269 Antigua response to questions Nos. 28 and 31 by the Arbitrator, pages 28-30.  WT/DS285/ARB 
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 starting point could have been promising.  Howe ver, the United States does not provide any evidence 
on reasonable estimates of the wage share in total earnings.  At a minimum, one could have provided 
information from a range of companies in the remote gambling business on their total revenues from internet gambling as well as on the number of employees and wage costs in that segment.  Regarding the other two approaches, the necessary tax informati on does not appear to exist at all (the relevant 
legislation on income taxation was repealed s hortly after its promulgation and has never been 
implemented) or, as far as the Antiguan remark on the contribution of gambling to GDP is concerned, 
it is not clear what is being referred to (apparen tly there is no documentation underlying the rather 
vague statement made, nor even a reference to GDP in a particular year).  
(d) Loss of market share to competitors 
(i) Arguments by the parties 
3.170  As described above in section III.D.2(a), the Unite d States approach factors in an alleged loss 
of competitiveness by Antigua using a 7 over 50 per cent factor representing Antigua's global market share in 2006 and 2001 respectively to adjust the calculated level of nullification or impairment 
downwards.  Referring to the arguments by parties po rtrayed already in section III.D.1(g)(i), we recall 
that Antigua opposes any adjustment to the counterf actual level of exports for other factors arguing 
that the revenues losses of its remote gambling i ndustry are entirely attributable to the US actions
270, 
while the United States maintains that Antigua's loss of  global market share cannot be attributed to the 
US measures at all.271 
(ii) Analysis by the Arbitrator 
3.171  As explained above in section III.D.1(g)(ii), we consider the issue of competition to be 
important, but we do not think that it is appropriate to use Antigua's global market share in an attempt 
to quantify Antigua's loss of competitiveness.  Instead, Antigua's competitive position should be 
gauged in relation to its competitors in the United St ates market that are likely to be equally affected 
by the US measures.  As stated above, being unabl e to rely on the way parties have modelled (or not) 
the issue of competition, we are required to develop our own approach in that regard. 
3. Approach of the Arbitrator 
3.172  At the outset, we note that the approaches by both parties are radically different in terms of 
both the underlying data and the methodology used to determine Antigua's c ounterfactual levels of 
exports of remote gambling services to the United Stat es.  Both parties have made a number of valid 
arguments criticizing key aspects of the approach propo sed by the other party.  We feel unable to rely 
on the approach used by Antigua, as laid out in its methodology paper, in calculating the requested 
amount of countermeasures.  At the same time, th e approach put forward by the United States does 
not represent a convincing alternative either.   
3.173  We, therefore, have no choice but to adopt our ow n approach.  In so doing, we feel we are on 
shaky grounds solidly laid by the parties.  The da ta is surrounded by a degree of uncertainty.  For 
most variables, the data consists of proxies for what needs to be measured, and observations are too 
few to allow for a proper econometric analysis.  Certai n data that we have requested and that, to some 
extent, could have remedied this  situation has not been provided.  On methodological questions, 
parties, in a number of respects, have retained  their extreme positions and have failed to propose 
alternative solutions that would have taken into account the exchange of arguments.   
                                                      
270 Antigua Methodology Paper, pages 2-3;  and Antigua response to question 44 by the Arbitrator, 
pages 34-35. 
271 US response to question No. 23 by the Arbitrator, para. 29. WT/DS285/ARB 
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 3.174  Hence, we are left with preciously little info rmation and guidance.  Nevertheless, we will 
attempt to stay as closely to the approaches propo sed by parties as possible and to make a maximum 
use of the limited information base we were given, in  particular to carry out some sensitivity analysis 
in support of our main approach.  We will broadl y follow the spirit of Antigua's original approach, 
while making the necessary adjustments in light of our analysis above.  We will proceed in four steps.  
First, we will seek to establish a workable assumption about Antigua's revenues from remote 
gambling services exports to the United States.  Sec ond, we will adjust this time series for the 
apparent impact of competing suppliers.  Third, we  will determine a plausible share of betting services 
on horseracing in Antigua's total revenues from remote  gambling.  Finally, we will take account of 
developments in US demand for gambling services on horseracing.   
(a) Antigua's exports of remote gambling services to the United States 
3.175  In view of the non-reporting of remote gambli ng services data by Antigua and the consequent 
non-inclusion of such information in the relevant categories of the services  trade statistics compiled 
by the ECCB/IMF/WTO, we are left with no real a lternative to the GBGC data for a time series of 
Antigua's revenues from remote gambling.  We have  to assume that such revenues indeed constitute 
exports, i.e. that the domestic market in Antigua is  negligible and that the allocation of revenues to 
various jurisdiction has been done according to the actual location of operations.  On the basis of 
some of the additional information provided, we can check whether the order of magnitude of the 
GBGC data is not out of line with other statistics.   Notably, we will calculate an average of revenues 
per employee using the public company data provid ed by Antigua.  Another interesting point of 
comparison would have been an estimation of tota l revenues on the basis of the 2001 wage bill in 
Antigua's remote gambling sector, but, unfortunately , we were not provided with any evidence as to 
the average share of wages in total revenues.   
(i) GBGC data 
3.176  We note that the GBGC data on Antigua's a nnual remote gambling revenues for the years 
1999-2006 from the October 2007 release of the Qu arterly eGaming Statistics Report has been 
significantly revised downwards, especially for the y ears before 2002, compared to the data of the 
May release, which was used by Antigua in its methodology paper.
272  Given GBGC's own 
corrections, we feel, of course, compelled to use th e most recent update of the data.  We also recall 
that these figures constitute Antigua's global revenue s and that no information on bilateral exports of 
gambling services from Antigua to the United States has been provided.  However, Antigua provides 
some anecdotal evidence that the US share in An tigua's total revenues from remote gambling should 
be around 80 per cent.  In the absence of better inform ation and of any indication about how this share 
has developed over time, we feel that the most we can do is to reduce the GBGC time series of Antiguan remote gambling revenues by 20 per cent to obtain an estimate of its revenues from the 
United States and to do at least some justice to our impression that the United States indeed represents 
the dominant market for Antigua.   
3.177  Like Antigua (in two of its th ree models) and the United States,  we take the 2001-2002 period 
as the turning point when the US measures began to affect Antiguan exports of remote gambling 
services to the United States.  Following the basic idea of Antigua's constant revenue methodology, 
we calculate the difference between Antigua's 2001  revenues and its actual revenues in each year 
2002 to 2006.  From these numbers, we determine the average annual revenue loss in the US market 
for Antigua to be about $304 million , according to the GBGC data.
273   
                                                      
272 Antigua responses to questions by the Arbitrator, Exhibits AB-14(1) and AB-14(2). 
273 See Annex E, Annex Table 1.  WT/DS285/ARB 
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 3.178  However, only part of this loss is due to the US measures.  By the same token, the assumption 
that Antigua's revenues would have remained cons tant represents a conservative starting point, since 
Antigua may well have benefited from an increase in  US demand (that may have increased Antigua's 
revenues or cushioned its loss to co mpetitors compared to the 2001 leve l).  To take account of market 
developments, Antigua, in its methodology paper, pro poses to use either a constant market share or 
constant growth methodology.  We think that the constant market share methodology is not 
appropriate for a number of reasons.  As was said be fore, Antigua's market share may be influenced 
by a number of events totally unrelated to the ques tion at hand.  Also, it is unlikely that an early 
mover advantage in a market with seemingly low barrie rs to entry guarantees a constant market share;  
to the contrary, as long as "supernormal" profits can be earned in a particular market, one would 
expect new entry and declining market shares of ear ly entrants, even if revenues continue to grow.  
Most importantly, the GBGC data itself shows signs of increased competition that do not justify such 
an assumption.  Concerning Antigua's constant gr owth assumption, we think that its 2001 revenues 
are the product of extraordinary growth in the early years and, if anything, would grow at a decelerating rather than linear rate, more in li ne with an S-curve pattern commonly observed in 
competitive markets.  Despite the very limited number  of observations, a logistic curve can be fit to 
the pre-2002 Antiguan revenue data, using the Levenberg-Marquardt algorithm.  Its saturation point κ 
converges to US$1,411 million.  Taking this valu e as a benchmark, the average annual loss would 
have been US$411 million.  Yet, we  are not going to pursue this appr oach further preferring instead to 
model the impact of competition as well as possi ble increases in United States demand directly. 
(ii) Revenues per employee 
3.179  As stated above, we use the informati on on revenues per employee from public listed 
companies as well as the data on employment in the remote gambling sector provided by Antigua to conduct a rough test of the order of magnit ude of Antigua's remote gambling revenues.
274  The data 
for seven publicly listed companies (three of whic h are licensed in Antigua) was taken from annual 
reports and is available for the years 2001 (for some companies 2002, 2003 or 2004) to 2006.  Taking 
the average over those years gives an annua l value of about $446,000/employee, and 
$447,000/employee if extreme values are removed.275  Multiplying the former value by the difference 
between the number of employees in 2001 and the number of employees in each year 2002 to 2006 (adjusted for the assumed 80 per cent US market share) and taking the average over those years 
results in an average annual revenue loss of about $196 million.
276   
3.180  In the following, we will make furthe r adjustments to both of these numbers. 
(b) Competing suppliers 
3.181  Analysing the arguments by parties and the ava ilable evidence, we have found that we cannot 
agree with either extreme position taken by parties that  either none or all of Antigua's loss in market 
share experienced since 2002 is due to its lo ss of competitiveness vis-à-vis providers from other 
locations.  Using the October release of the GBGC data provided by Antigua, we find it particularly 
revealing that world revenues increase for both indi vidual countries/territories in the region, namely 
Costa Rica, Curaçao and the Khan awake Territory, as well as for the South/Central America and 
Caribbean region as a whole, while the opposite is true for Antigua.  As discussed above, it seems 
reasonable to us to assume that countries in the re gion compete with Antigua for the US market and a 
priori  should be affected similarly by the US measur es than Antigua.  While these countries also lose 
global market share between 2002 and 2006, this decl ine is less pronounced than that for Antigua.  In 
order to operationalize the notion of competition, we  interpret the underperformance of Antigua since 
                                                      
274 Antigua response to question No. 21 by the Arbitrator, pages 18-19 and Exhibit AB-17. 
275 See Annex E, Annex Table 2. 
276 See Annex E, Annex Table 3. WT/DS285/ARB 
Page 54  
 
 2002 in terms of its contribution to the regional share in global remote gambling revenues as a loss in 
competitiveness by Antigua compared to its main comp etitors that it would have suffered even in the 
absence of the US measures.  If this is so, only part  of the revenue loss calculated in III.D.3(a)(i) and 
III.D.3(a)(ii) above should be attributed to the US measures.   
3.182  To make the necessary adjustments, we pro ceed as follows:  Assuming that Antigua would 
have continued to do as well as its Centra l/South American and Caribbean competitors, its 
contribution to the region's global market share wo uld have remained constant at the 2001 value.  
However, its contribution declined each year to  reach about half of its 2001 value in 2006.
277  Hence, 
the revenue loss by Antigua should be corrected for by  the decline in its relative contribution to the 
region's global market share for each year 2002 to 2 006.  If this is done the average annual revenue 
loss calculated in III.D.3(a)(i) and III. D.3(a)(ii) above is reduced to $164 million  and $128 million  
respectively.278 
3.183  If, in addition, we include the Khanawake Terr itory in the group of regional competitors, the 
average annual revenue loss calculated in III.D.3(a )(i) and III.D.3(a)(ii) above would only amount to 
$118 million and $108 million respectively.  However,  while inclusion of the Khanawake Territory 
makes sense conceptually, we prefer to avoid th e use of country-specific information, besides 
Antigua, as far as possible, since we have more conf idence in GBGC's global and regional estimates.  
Specifically, for the Khanawake Territory, we note so me small inconsistencies in certain years with 
the North America total of revenues by operator location that, unlike for Antigua, have not been 
corrected between the May and October 2007  releases of the GBGC database.   
(c) Gambling on horseracing 
3.184  In light of the chosen counterfactual and our  analysis above in III.D.2(b)(ii), we have 
identified two strategies concerning an approxi mation of the unknown share of gambling on 
horseracing in Antigua's exports of remote gambling services to the US, which seem preferable over 
the other possible options identified by parties.  Th e first option is to use the GBGC data combining 
remote and non-remote revenues from gambling on horser acing in various regions of the world.  It is 
not clear whether the regional numbers refer to play er or operator location.  Since the main markets 
are separated out, it may refer to the former;  howev er, the figure for sportsbetting in North America 
is rather small.  Hence, it is probably more prudent to take the wo rld total.  Globally, the share of 
horseracing in all gambling activities declines from 13 per cent in 2001 to 9 per cent in 2006, while the total amount stays about constant.  Applying th e average share of 11 per cent to the figures in 
boldface calculated in III.D.3(b) above, one obtains an estimated annual revenue loss by Antigua from 
gambling on horseracing of about $18 million  and $14 million  respectively. 
3.185  If the 7 per cent share of gambling on horseraci ng in the United States non-remote market is 
used (based on the average for the years 2003 to  2006), the amounts calculated III.D.3(b) above 
would be reduced to about $11 million and $9 million respectively. 
(d) Growth in US demand 
3.186  As we said above in III.D.3(a)(i), we need to  take account of the possible growth in the US 
remote gambling market, in this case in the horseraci ng segment of the market, that Antigua may have 
been able to take advantage of in the absence of the US measures.  Parties have provided alternative 
datasets in that regard.  Antigua has provided da ta showing that revenues from the gambling market 
on horseracing in North America have practically stagnated between 2001 and 2006.  Fitting a linear 
time trend through the data, the world market has barely  done better growing at an average of 0.5 per 
                                                     
 
277 See Annex E, Annex Table 4. 
278 See Annex E, Annex Table 5.  WT/DS285/ARB 
 Page 55 
 
 
 cent annually.  This would only marginally affect  the estimated annual revenue losses by Antigua 
from gambling on horseracing calculated in III.D.3(c) (in boldface), which remain at about US$18 million and US$14 million.   
3.187  However, the remote gambling statistics for the North American market may be biased by the 
effects of the US measures.  This is why we pref er to work with the data provided by the United 
States on pari-mutuel net receipts in the non-re mote gambling market from BEA statistics on 
consumption expenditures, although these figures ma y still be influenced by a degree of substitution 
from remote to non-remote gambling on horseracing due the impact of the US measures on foreign 
suppliers.  The United States provides data for the non-remote gambling market from 1995 to 2006, which includes a breakdown of pari -mutuel net receipts, 90 per cent of which are believed to be 
accounted for by betting on horseracing.  Over the 2001-2006 time period, expenditures in that 
segment grew by 5 per cent annually on average (the same  is true if the whole time period is used to 
calculate a linear trend).  Applying the resulti ng compound growth rate to the amounts (in boldface) 
calculated in III.D.3(c) results in an aver age annual revenue loss for Antigua of about $23 million  or 
$18 million  respectively.   
4. Conclusion 
3.188  Taking account of the data uncertainties we have discussed earlier, we have decided to take 
the average of the two figures we calculated in pa ragraph 3.187 above in making our final award.  
Averaging and rounding to the next full million results in an amount of US$21 million .   
3.189  We therefore find that the annual level of nullifi cation or impairment of  benefits accruing to 
Antigua is US $21 million.  
IV. PRINCIPLES AND PROCEDURES OF ARTICLE 22.3 OF THE DSU 
4.1 As noted in Section I.B, Antigua requested to be authorized to suspend concessions and other 
obligations under the GATS and the TRIPS Agreem ent, in accordance wi th the principles and 
procedures of Article 22.3 of the DSU.   
A. M
AIN ARGUMENTS OF THE PARTIES  
4.2 In its request, Antigua states that, in consider ing what concessions and obligations to suspend, 
it applied the principles and procedures set forth in  Article 22.3 of the DSU, and makes its request 
pursuant to Articles 22.3(b) and (c).  Antigua notes that is a developing country with a population of 
approximately 80,000, and that with a combined la ndmass of only 442 square kilometres, Antigua is 
by far the smallest WTO Member to have made  a request for the suspension of concessions under 
Article 22 of the DSU and realises the difficulty of providing effective countermeasures against the 
world's dominant economy.  Antigua argues that its natural resources are negligible and as a result not 
only are the country's exports limited (approximate ly US$4.4 million annually to the United States) 
but Antigua is required to import a substantial am ount of the goods and services needed and used by 
the people of the country.  Antigua submits that on an annual basis, approximately 48.9 per cent of 
these imported goods and services come from single source providers located in the United States.  
The imposition of additional import duties on products imported from the United States or restrictions 
imposed on the provision of services from the United States by Antigua will, in Antigua's view, have a disproportionate adverse impact on Antigua by making these products and services materially more 
expensive to the citizens of the country.  Given the vast difference between the economies of the 
United States and Antigua, additional duties or rest rictions on imports of goods and services from the 
United States would have a much greater negative impact on Antigua than it would on the United 
States.  In fact, ceasing all trade whatsoever with the United States (approximately US$180 million 
annually, or less than 0.02 per cent of all exports from the United States) would have virtually no WT/DS285/ARB 
Page 56  
 
 impact on the economy of the United States, which could easily shift such a relatively small volume 
of trade elsewhere.  
4.3 Antigua further considers that the circumstanc es are serious enough to justify the suspension 
of concessions or obligations under ot her covered agreements in addition to the GATS.  As a result of 
Antigua's lack of natural resources, the bulk of  the economy is dependent upon tourism and the 
provision of banking and other financial services.  An tigua explains that, initially with the cooperation 
of the United States Government, it looked to the pr ovision of gambling and betting services as a way 
to diversify its economy and create the growth needed to assist the country in moving from a developing to a more advanced status, and that recent efforts by the United States Government to 
further prohibit and impede the provision of these services to consumers in the United States have 
greatly harmed the Antiguan service providers, while domestic providers in the United States continue 
to prosper in the absence of pr ohibition and criminal prosecution.  Under the circumstances, the 
United States' prohibition of these services and its non-compliance with the recommendations and 
rulings of the DSB in this dispute forces Antigua  to proceed in the manner requested despite the 
difference in level of development with the United St ates, the large disparity in their trade relations 
and despite the harsh economic rea lity affecting Antigua which affects its ability to exercise its rights 
under Article 22.   
4.4 Antigua also considers that the suspension of  concessions and other obligations corresponding 
to a value of US$3.443  billion and wholly app lied to the importation of services from the United 
States is neither practicable nor effective for vari ous reasons.  First, Anti gua and Barbuda made no 
commitments under the sector at issue in this dispute, GATS Sector 10.D., "Sporting and Other 
Recreational Services," in its Schedule of Specific Commitments under the GATS (GATS/SC/2) 
("Antigua's Schedule").  Second, with respect to  most of the other services covered by Antigua's 
Schedule, as noted above suspension of concessions in the form of higher duties, tariffs, fees or other 
restrictions would have a dispr oportionate impact on the economy of  Antigua and little or no impact 
on the United States.  Third, even if Antigua were  to rely exclusively on a suspension of concessions 
under the GATS, it would clearly not be able to recover the full amount of nullification and 
impairment caused by the inconsistent measures. 
4.5 Additionally, in Antigua's view, the United States' continued non-compliance renders the 
circumstances serious enough, within the meaning of  Article 22.3(c) of the DSU, to justify the 
imposition of appropriate countermeasures under othe r covered agreements, given that Antigua's 
gaming industry will continue to suffer serious losses,  the government of Antigua will be deprived of 
critical revenue, the people of Antigua will be en joined from participating in much needed 
employment and the overall economy of the nation w ill continue to suffer a dverse effects for such 
time as the United States does not withdraw the measu res at issue in this dispute or remove their 
adverse effects.   
4.6 The United States, however, considers that Antigua has not followed the principles of 
Article 22.3 of the DSU, which required it to first seek to suspend concessions in the same sector as 
that covered by gambling services (namely, the United States states, "10. Recreational, Cultural and Sporting Services"), and that if it is not practicable to do so, Antigua must then seek to suspend concessions or obligations under the same agreement, namely the GATS.
279    
4.7 The United States considers that Antigua has not provided an adequate explanation of why it 
cannot seek to suspend concessions under the GATS,  as opposed to the GATS and also the TRIPS 
Agreement.  The United States notes that Antigua mak es conclusory statements that it is a developing 
country and that it generally needs to import goods  and services, but provides no specific explanation 
of why it would not be practicable or effective to suspend concessions on specific services.  The 
                                                      
279 US written submission, paras. 56 and 57.  WT/DS285/ARB 
 Page 57 
 
 
 United States also considers that the argument that th e level of Antigua's request is greater than all of 
its trade with the United States, and thus it mu st suspend concessions under other agreements, is 
flawed because the amount of the request is out of li ne with any economic reality.  Once the level is 
recalculated, it is in line with Antigua's service s imports and suspension of services concessions is 
possible (and required).  In the United States view, th e argument that no suspension in either goods or 
services could have an impact on the United States b ecause of the disparity in the relative size of both 
economies cannot provide a carte blanche  permission to deviate from the general principles set out in 
Article 22.3.   
4.8 Antigua considers that with the explanations it has provided in its request, it has clearly and 
unambiguously set forth its claims  in accordance with the principles of Article 22.3 of the DSU280, so 
that it is now for the United States to establish "tha t it is both reasonable and effective for Antigua to 
seek [to suspend] concessions eith er in the same sector under the GATS or under one or more other 
sectors of the GATS in which Antigua has made commitments."  
4.9 Antigua also indicates in its written submission that it has no remedy under the GATS, most 
fundamentally because its volume of imports in the services sector is nowhere near sufficient to 
absorb the level of conces sions that it is entitled to.281  Specifically, Antigua then further explains why 
suspension under GATS is practicable or effective ne ither in the same sector nor in other sectors.   
B. OVERALL APPROACH BY THE ARBITRATOR  
4.10 Article 22.3 sets out certain principles and procedures to be followed by a complaining party 
seeking to suspend concessions, as to the sector(s) an d/or covered agreement in which the suspension 
can take place, which the United States claims that Antigua did not follow in its request.    
4.11 Article 22.7 of the DSU provides that "if the ma tter referred to arbitration includes a claim 
that the principles and procedures set forth in paragr aph 3 have not been followed, the arbitrator shall 
examine that claim" and that "[i]n the event th e arbitrator determines that those principles and 
procedures have not been followed, the complain ing party shall apply th em consistent with 
paragraph 3".  We are therefore required to examin e the US claim that Antigua has not followed the 
principles and procedures of Article 22.3 of the DSU. 
4.12 As a general principle, Article 22.3(a) of th e DSU provides that suspension of concessions or 
other obligations should first be sought in the same  sector as that in which a violation was found.  
Article 22.3 provides in relevant part that: 
"In considering what concessions or other obligations to suspend, the complaining 
party shall apply the following principles and procedures: 
(a) the general principle is that the complaining party should 
first seek to suspend concessions  or other obligations with 
respect to the same sector(s) as that in which the panel or Appellate Body has found a violation or other nullification or impairment." 
4.13 Subparagraphs (b), (c) and (d) of Article 22.3 further specify the principles and procedures to 
be followed by a complaining party wishing to seek suspension in another sector, or another 
agreement, than that in which a violation was found: 
                                                     
 
280 Antigua's written submission, para. 39. 
281 Antigua's written submission para.48. WT/DS285/ARB 
Page 58  
 
 "(b) if that party considers that it is not practicable or effective for 
it to suspend concessions or other obligations with respect to the same sector(s), it may seek to suspend concessions or other obligations in other sectors under the same agreement; 
(c) if that party considers that it is not practicable or effective to 
suspend concessions or other obligations with respect to 
other sectors under the same agreement, and that the circumstances are serious enough, it may seek to suspend concessions or other obligations under another covered agreement."   
4.14 In addition, subparagraph (d) provides that: 
"(d) in applying the above principl es, that party shall take into 
account: 
 (i)  the trade in the sector or under the agreement under 
which the panel or the Appellate Body has found a violation 
or other nullification or impa irment, and the importance of 
such trade to that party; 
 (ii) the broader economic elements related to the 
nullification or impairment  and the broader economic 
consequences of the suspension of concessions or other obligations."  
4.15 In considering our mandate with respect to the principles and procedures set forth in 
Article 22.3 of the DSU, we find it useful to re fer to the analysis of the arbitrators in the EC – 
Bananas III (Ecuador) case.   As noted in Section I.A above, in determining the scope of their 
authority to review the principles and procedures re lating to requests for suspension of concessions or 
other obligations under subparagraphs (b ) and/or (c), the arbitrators in that case considered that "the 
fact that the powers of arbitrators under subpa ragraphs (b)-(c) are explicitly provided for in 
Article 22.6 implies a fortiori  that the authority of Arbitrators includes the power to review whether 
the principles and procedures set forth in these s ubparagraphs have been followed by the Member 
seeking authorization for suspension".
282     
4.16 The arbitrators then considered the terms of Ar ticle 22.3, including the fact that a certain 
margin of appreciation is left to the complaining part y in arriving at conclusions in respect of certain 
factual elements (i.e. "if that party considers " in subparagraphs (b) and (c)) as well as the fact that the 
party concerned is required to apply the principles of Article 22.3 (i.e. " shall  apply the following 
principles and procedures" in the introductory clause of Article 22.3).  On the basis of that textual 
analysis, the arbitrators determined that: 
"[T]he margin of review by the Arbitrat ors implies the authority to broadly judge 
whether the complaining party in ques tion has considered the necessary facts 
objectively and whether, on the basis of these facts, it could plausibly arrive at the 
conclusion that it was not practicable or eff ective to seek suspensi on within the same 
                                                      
282 Decision by the arbitrators,  EC – Bananas III , (request by Ecuador), para. 50.  WT/DS285/ARB 
 Page 59 
 
 
 sector under the same agreements, or only under another agreement provided that the 
circumstances were serious enough."283    
4.17 The arbitrators in the EC – Bananas III (Ecuador)  case also considered more broadly the 
terms of Article 22.3 and noted that "these pr ovisions imply a sequence of steps towards WTO-
consistent suspension of concessions or othe r obligations which respects both a margin of 
appreciation for the complaining party as well as a marg in of review by Arbitrators, if a request for 
suspension under Article 22.2 is challenged under Article 22.6".284    
4.18 We agree with these determinations.  Specifically , we agree that the principles and procedures 
set forth in Article 22.3 of the DSU, which re quire the complaining party to make certain 
determinations, imply "a margin  of appreciation" for the complaining party in making these 
determinations.  At the same time, Article 22.3 set s out specific principles and procedures, that the 
complaining party must follow, and we understand the role of the arbitrator acting pursuant to 
Article 22.7 of the DSU to involve a review of whether those principles and procedures have been followed.  We agree w ith the arbitrators in EC – Bananas III (Ecuador)  that this includes a 
determination "whether the complaining party in  question has considered the necessary facts 
objectively" and also "whether, on the basis of these f acts, it could plausibly a rrive at the conclusion 
that it was not practicable or effective to seek suspension within the sa me sector under the same 
agreements, or only under another agreement provided that the circumstances were serious enough".   
4.19 Turning now to the specific principles and procedures set forth in Article 22.3 of the DSU, we 
first note that, as observed by the arbitrators in EC – Bananas III (Ecuador) ,  "these provisions imply 
a sequence of steps towards WTO-consistent su spension of concessions or other obligations".
285  In 
other words, as Antigua has expressed it, Article 22. 3 of the DSU provides a "hierarchy" of remedies 
that a complaining party must follow in determin ing in which sectors or under which agreements 
suspension of concessions or other obligations can be  sought, namely (1) seek to suspend in the same 
sector in the same agreement, (2) seek to suspend within the same agreement and (3) seek to suspend 
under another agreement.286  
4.20 In this instance, Antigua first indicated in its request that it "may" suspend "horizontal and/or 
sectoral concessions and obligations for the followi ng sector contained in the Antigua schedule: 2. 
Communication services", as well as under the TRIPS Agreement.  However, it now considers that suspension of concessions or other obligations unde r the GATS, whether in the sector in which a 
violation was found or in other sectors, is not practic able or effective, and that the circumstances were 
serious enough, so that it may seek to suspend concessions or other obligations under the TRIPS 
Agreement (under which no violation was found).
287    
4.21 Since Antigua seeks to suspend obligations unde r another covered agreement than that in 
which a violation was found (i.e. the TRIPS Agreemen t rather than the GATS), this implies that it 
made two successive determinations, under the "seq uence of steps" foreseen in Article 22.3 of the 
DSU:  first, a determination that it was not practicable or effective to suspend concessions or other 
obligations in the sector in which a violation w as found, in accordance with Article 22.3 (b), and 
                                                      
283 Decision by the arbitrators,   EC – Bananas III , (request by Ecuador), para. 52. 
284 Decision by the arbitrators,  EC – Bananas III , (request by Ecuador), para. 55. 
285 Decision by the arbitrators,  EC – Bananas III , (request by Ecuador), para. 55. 
286 Antigua's written submission, paras. 16 to 21.   
287We take note of the fact that Antigua has modified its assessment of the practicability or 
effectiveness of suspending concessions or other obligations under the GATS  in the course of its proceedings, 
in that it no longer considers, as it had suggested in its request for authorization to suspend, that it "may" 
suspend concessions or other obligations in telecommunications services.  For the purposes of our assessment, we consider Antigua's determinations as clarified in the c ourse of the proceeding, that is, its determination that it 
is not practicable or effective to suspend concessions or other obligations in any sector under the GATS.   WT/DS285/ARB 
Page 60  
 
 secondly, a determination that it was also not practi cable or effective to suspend concessions or other 
obligations under another sector w ithin the agreement in which a violation was found, and that the 
circumstances were serious enough, so that it was entitled to seek suspension of concessions or other 
obligations under another agreement as foreseen in  subparagraph (c).   We will consider these two 
aspects in turn.    
C. P
RELIMINARY OBSERVATIONS  
4.22 Before we start our assessment of Antigua's dete rminations, we find it useful to make some 
preliminary observations to take into account the f act that we have found, in Section III above, that 
the annual level of nullification or impairment of benefits accruing to Antigua is in the amount of 
US$ 21 million, rather than US$3.443  million as estimated by Antigua.    
4.23 Antigua's arguments in relation to the availa bility of suspension of concessions or other 
obligations under the GATS rely in part on assumptions  concerning the amount of suspension that it is 
entitled to.  Specifically, Antigua has explained that the "first and most fundamental reason" for which 
it is not practicable or effective to suspend con cessions or other obligations under the GATS is that 
the volume of its imports from the United States in se rvices is nowhere near sufficient to absorb the 
level of suspension of concessions that it is entitled to.288  The United States, for its part, considers 
that Antigua's argument is flawed because the amount of the request is out of line with any economic 
reality.  Once the level is recalculated, the United St ates argues, it is in line with Antigua's services 
imports and suspension of services concessions is possible (and required). 
4.24 We agree that, to the extent that the annual le vel of nullification or impairment of benefits 
accruing to Antigua exceeds the total annual level of imports of services by Antigua from the United 
States, it would not be possible for Antigua to susp end obligations only in the services sector to cover 
the entire level of nullification or impairment.  Ho wever, we have determin ed in paragraph 3.188 
above that the level of nullificati on or impairment of benefits ac cruing to Antigua is significantly 
lower than Antigua had estimated, at US$21 million.  We will therefore take this finding into account, 
in reviewing Antigua's determinations.    
4.25 With these preliminary considerations in mind, we now turn to Antigua's determination that 
suspension of concessions or other oblig ations is not practicable or effective, in the same sector as that 
in which a violation was found, or in any other sector under the GATS. 
D. REVIEW OF ANTIGUA 'S DETERMINATION IN RESPECT OF "SAME -SECTOR " SUSPENSION  
4.26 As noted above, it is only if the complaining pa rty considers that it is "not practicable or 
effective" to suspend obligations with respect to  the same sector that it may seek to suspend 
obligations in other sectors (or, ultimately, under another agreement).  In addition, Article 22.3 
subparagraph (d) requires the complaining party to take into account two specific aspects in applying 
the principles of paragraphs (a) to (c).  
4.27 We have determined in the previous section that  our task is to examine whether, in making a 
determination in this case, Antigua, as the comp laining party, has considered the necessary facts 
objectively and whether, on the basis of these facts, it could plausibly arrive at the conclusion that it 
was not practicable or effective to seek suspension w ith respect to the same sector within the same 
agreement. 
4.28 In order to conduct this assessment, we must clar ify the elements that are relevant to such 
determination, and specifically the meaning of the terms "not practicable or effective" within the 
                                                      
288 Antigua's written submission, para. 48.  WT/DS285/ARB 
 Page 61 
 
 
 terms of Article 22.3(b), as well as the role of the elements identified in subparagraph (d) in this 
assessment, before turning to Antigua's determination in this case.   
1. The principles and procedures of Article 22.3(b) 
4.29 In the EC – Bananas III (Ecuador)  case, the arbitrators analyzed the meaning of the criteria of 
"practicability" and "effectiveness" in subparagraphs (b) and (c) of Article 22.3 of the DSU in some 
detail, as well as the role of the elements referred to in subparagraph (d) of Article 22.3 of the DSU.  
The arbitrators in that case determined inter alia  that: 
− an examination of the "practicability" of an alternative suspension concerns the question 
whether such an alternative is available fo r application in practice, as well as suited for 
being used in a particular case;289 
− in contrast, the thrust of the "effectiveness" criterion empowers the party seeking 
suspension to ensure that the impact of th at suspension is strong and has the desired 
result, namely to induce compliance by the Member which fails to bring WTO-
inconsistent measures into compliance with  DSB rulings within a reasonable period of 
time;290 
− a consideration by the complaining party of the practicability and the effectiveness of an 
alternative suspension within the same sector or under the same agreement does not need 
to lead to the conclusion that such an alte rnative suspension is both not practicable and 
not effective in order to meet the requirements of Article 22.3;291  
− these criteria have to be read in combinati on especially with the factors set out in 
subparagraphs (i) and (ii) of Article 22. 3(d) which, as the introductory clause of 
subparagraph (d) stipulates, the complaining party seeking authorization for suspension shall take into account in applying the above principles, i.e. those provided for in subparagraphs (a)-(c).
292 
4.30 We consider that these interpretations provide a useful starting point for our assessment of 
Antigua's determination that it was not practicable or effective for it to suspend obligations with 
respect to the same sector under the GATS.   
4.31 With respect to the elements referred to in subparagraph (d ) of Article 22.3, which the 
complaining party is required to "take into account " in making its determination,  we also find it 
useful to refer to the interpretations of the arbitrators in EC – Bananas III (Ecuador) .  
4.32 With respect to the reference in subparagraph (d )(i) to "the trade in the sector or under the 
agreement under which the panel or Appellate Body has found a violation" and the "importance of 
such trade" to the complaining party, that arbitrator s did not "exclude the possibility" that trade in the 
entirety of the relevant sector or agreement may be pertinent, but considered that these criteria related 
primarily to trade nullified or impaired by th e WTO-inconsistent measure at issue.    
4.33 In our view, the ordinary meaning of the terms of subparagraph (d)(i) suggests that a 
consideration of the entirety of "trade in the sect or" under which a violation was found is pertinent, 
rather than, as the EC – Bananas III (Ecuador)  arbitration suggests, primarily the "trade nullified or 
                                                      
289 EC – Bananas III (Ecuador) (Article 22.6 – EC), para.70.  
290 EC – Bananas III (Ecuador) (Article 22.6 – EC), para. 72.  
291 EC – Bananas III (Ecuador) (Article 22.6 – EC), para. 74.  
292 EC – Bananas III (Ecuador) (Article 22.6 – EC), para. 79.  WT/DS285/ARB 
Page 62  
 
 impaired by the WTO-inconsistent measure at issue".  Th is appears to us also to be consistent with the 
context of this provision as well as with its object and purpose.   
4.34 First, the term "sector" is also referred to in  subparagraph (b), where it defines the scope of 
the examination to be conducted.  The term "sector " is also specifically defined for the purposes of 
Article 22.3 in subparagraph (f).  We therefore fi nd it appropriate to give the term "sector" in 
subparagraph (d) of Article 22.3 of the DSU the mean ing that has been ascribed to it in subparagraph 
(f) of the same provision, and to assume, reading the te rms "trade in the sector" in their context, that 
there should be parallelism between the sector in which the practicability and effectiveness of 
suspension is being considered and the trade to be ta ken into account in making this determination.  In 
other words, in order to determine whether suspensi on is practicable or effective in a certain sector, it 
is appropriate to take into account all the trade in  that sector and its importance to the complaining 
party.  This also appears to us consistent with  the purpose of this provision, which is to provide 
certain objective parameters to guide the conduct of such determinations. 
4.35 In addition, subparagraph (ii) of  Article 22.3(d) requires the complaining party to take into 
account "the broader economic elemen ts related to the nullification or impairment" as well as "the 
broader economic consequences" of the suspension of c oncessions or other obligations.    In respect of 
these factors, the arbitrators in the EC – Bananas III (Ecuador)  case determined that:  
"The fact that the former criterion relates to 'nullification or impairment' indicates in 
our view that this factor primarily concer ns 'broader economic elements' relating to 
the Member suffering such nullification or impairment, i.e. in this case Ecuador.  
We believe, however, that the fact that the latter criterion relates to the suspension of 
concessions or other obligations is not necessarily an indication that 'broader 
economic consequences' relate exclusively to  the party which was found not to be in 
compliance with WTO law, i.e. in this case the European Communities.  As noted 
above, the suspension of concessions may not on ly affect the party retaliated against, 
it may also entail, at least to some extent, adverse effects for the complaining party 
seeking suspension, especially where a great imbalance in terms of trade volumes and 
economic power exists between the two pa rties such as in this case where the 
differences between Ecuador and the European  Communities in regard to the size of 
their economies and the level of socio- economic development are substantial."
293 
4.36 We agree with these determinations.   
4.37 In conclusion, we understand subpa ragraph (d) of Article 22.3 to require a consideration, by 
the complaining party, of the following elements: 
(a) the trade in the relevant sector (as defi ned in subparagraph (f)) and the importance of 
such trade to the complaining party (in th is case Antigua), including considerations 
relating to the relative importance of that trade to the complaining party and to the Member to which the requested suspen sion would apply (the United States); 
(b) "broader economic elements" relating to the Member suffering the nullification or 
impairment (in this case Antigua); 
(c) "broader economic consequences" of th e suspension of concessions or other 
obligations, both for the party which was found not to be in compliance with WTO law (the United States) and for the complaining party (Antigua). 
                                                     
 
293 EC – Bananas III (Ecuador) (Article 22.6 – EC), paras. 85-86.   WT/DS285/ARB 
 Page 63 
 
 
 4.38 With these general considerations in mind, we now review Antigua's determination that it was 
not practicable or effective to suspend concessions or other obligations with respect to the same sector 
as that in which a violation was found under the GATS in this case. 
2. Review of Antigua's determination that is  not practicable or effective to suspend 
concessions or other obligations in the "same sector" 
4.39 In order to review Antigua's determination, we fi nd it useful to first clarify what the relevant 
"sector" is, as well as the scope of the "concessions or other obligations" to be considered.  We will 
then turn to Antigua's determination on the prac ticability and effectiveness of suspension of these 
obligations, including its consideration of the factors identified in subparagraph (d). 
(a) Identification of the relevant sector and scope of obligations to be considered 
4.40 Subparagraph (a) of Article 22.3 provides that : 
"[T]the general principle is that the complaining party should first seek to suspend 
concessions or other obligations with respect to the same sector(s) as that in which 
the panel or Appellate Body has found a violation or other nullification or 
impairment" (emphasis added). 
4.41 Article 22.3 (f) of the DSU further defines the term "sector" for the purposes of Article 22.3.  
Specifically, it defines the term "sector" as meaning: 
"[W]ith respect to trade in services, a pr incipal sector as identified in the current 
"Services Sectoral Classification List" which identifies such sectors".    
4.42 As is clarified in footnote 14 of the DS U, this list is contained in document 
MTN.GNS/W/120, which identifies 11 principal sectors.  
4.43 In this case, a violation was found in sub-sector "10.D" (Sporting and Other recreational 
services).  The "principal sector" in which the viol ation was found, as defined in Article 22.3(f), is 
therefore Sector 10 ("Recreational, Cultural and S porting Services").  Antigua has confirmed, in 
response to a question from the Arbitrator, that it agr ees that the entirety of Sector 10 is relevant for 
the purposes of this determination.294 
4.44 Article 22.3 refers to "concessions or other obligations " (emphasis added) with respect to the 
relevant sector.  This indicates, in our view, th at the entire range of obligations incurred under the 
relevant agreement with respect to the sector concer ned is relevant in consid ering whether suspension 
is practicable or effective in that sector.  This would include, as expressly noted in the text, scheduled 
concessions, as well as, as is also expressly stated in the text, any "other obligations" incurred with 
respect to the sector at issue.    
4.45 In this case, this means that the relevant range of obligations that should be considered for the 
purposes of assessing whether suspension is practicable  or effective with respect to the same sector  
includes not only any specific commitments made by Antigua with respect to Sector 10 (Recreational, 
Cultural and Sporting Services), but also other oblig ations under the GATS that apply to this sector, 
such as the MFN obligation contained in Article II of the GATS.  
                                                      
294 Antigua's response to question No. 47 of the Arbitrator. WT/DS285/ARB 
Page 64  
 
 (b) Antigua's determination that it is "not practi cable or effective" to suspend concessions or 
other obligations with respect to the same sector  
(i) Arguments of the parties 
4.46 In its request for authorization to suspend con cessions or other obligations, Antigua noted that 
it had made no commitments under the sector at issu e in this dispute, "namely GATS Sector 10.D, 
'Sporting and Other Recreational Services,'"
295 in its Schedule of Specific Commitments, and did not 
elaborate further on the potential suspension of c oncessions or other obligations with respect to 
Sector  10 as a whole ("Recreational, Cultural and Sporting Services").  
4.47 The United States argues that Antigua's explana tion of its rationale for seeking suspension of 
obligations under the TRIPS Agreement in its requ est under Article 22.3 is "unconvincing" and does 
not follow the principles of Article 22.2.   The Un ited States further notes that Antigua's identification 
of the relevant sector under the GATS as "10.D"  (Sporting and Other Recreational Services) is 
incorrect, as the relevant sector is all of Sector 10 (Recreational, Cultural and Sporting Services).  The 
United States notes that Antigua has in fact  made commitments under 10.A (Entertainment 
Services)296, and that it has provided no explanations of why it is not seeking to suspend concessions 
for Entertainment Services, where it has sp ecific market access and national treatment 
commitments.297    
4.48 In its written submission, Antigua accepts that th e relevant sector is Sector 10, and further 
elaborates on the possibility of same-sector suspen sion within the entirety of Sector 10 under the 
GATS.   Antigua considers that it is clear from "pri or arbitrations" that a complaining party does not 
have to take into considera tion "trade in a sector where it has not made any commitments"298 and 
notes that the only trade within the same sector with  respect to which it has made commitments in its 
GATS Schedule is sub-sector 10.A ("Entertainment Se rvices").  It states that it has been unable to 
"locate any statistical sources" on trade in entert ainment services and believes that such trade is 
negligible in its overall volume. Antigua further considers that suspension of concessions or other 
obligations in this sector "would most likely im pair the already limited entertainment options 
available to Antiguan citizens while having virtually no impact on the United States at all"299.     
4.49 In response to a question from the Arbitrat or concerning the possible suspension of 
obligations other than specific commitments, su ch as the MFN obligation under the relevant 
agreement, Antigua responded that this was most likely an academic question in the context of this 
dispute and that "even if this enquiry were carried out to its farthest extent to where Antigua had no 
obligations to the United States under the GATS at all ", "the trade disparity is so great [between 
Antigua and the United States] that United States service providers would suffer little harm at all, if 
any, while Antiguan consumers would be forced to scramble for replacement services at uncertain 
cost".300        
4.50 The United States also generally argues that  Antigua has not provided an adequate 
explanation of why it cannot seek to suspend concessions under the GATS, as opposed to under the 
GATS and the TRIPS Agreement.  The United St ates notes that Antigua's request includes 
"conclusory statements along the lines that Antigua is a developing country and that it generally needs 
                                                      
295 Recourse by Antigua to Article 22.2 of the DSU, WT/DS285/22. 
296 US written submission, para. 59. 
297 US written submission, para. 59. 
298 Antigua's written submission, para. 50. 
299 Antigua's written submission, para. 51. 
300 Antigua's response to question No. 48 of the Arbitrator.  WT/DS285/ARB 
 Page 65 
 
 
 to import goods and services, but Antigua provides no specific explanation of why it would not be 
practicable or effective to suspend concessions on specific services".301    
4.51 More generally, Antigua argues that the "first and most fundamental reason" why it is neither 
practicable nor effective for it to seek suspension under the GATS is that the volume of its imports 
from the United States in services is nowhere near sufficient to absorb the level of suspension of 
concessions that it is entitled to.302   Antigua argues that, given that  its total imports of services in 
2005 amounted to US$208.11 million, it would not be possible for Antigua to reach a level of suspension of concessions or other obligations equiva lent to the level of nullification or impairment 
"either under the same sector of the GATS in which the violation was found [Sector 10] or under the 
entire GATS".
303  The United States, on the other hand, cons iders that the argument that the level of 
Antigua's request is greater than all of its trad e with the United States, and thus it must suspend 
concessions under other agreements, is flawed because the amount of the request is out of line with 
any economic reality.  Once the level is recalculate d, the United States argues, it is in line with 
Antigua's services imports and suspension of services concessions is possible (and required).304   
(ii) Assessment by the Arbitrator 
4.52 As noted above, Antigua considers that it was onl y required to take into consideration, for the 
purposes of determining whether suspension is practi cable or effective, trade in sectors where it has 
made a commitment. 305 It notes that the only trade within S ector 10 under the GATS with respect to 
which it has made commitments in its GATS Schedule is sub-sector 10.A ("Entertainment services"). It states that it has been unable to  "locate any statistical sources" on trade in that sub-sector and 
believes that such trade is negligib le in its overall volume.   Antigua further considers that suspension 
of concessions or other obligations in this sect or "would most likely impair the already limited 
entertainment options available to Antiguan citizen s while having virtually no impact on the United 
States at all"
306.     
4.53 The United States also appears to have consider ed, at least initially, that the only trade that 
was relevant in this determination was that in  respect of which Antigua has made a specific 
commitment, namely sub-sector 10.A.307  The United States did not, however, specifically respond to 
any of the arguments provided by Antigua in its writte n submission in respect of the volumes of trade 
concerned and the potential adverse impact of a suspension under this sub-sector.    
                                                      
301 US written submission, para. 60. 
302 Antigua's written submission, para. 48. 
303Antigua's written submission, para. 49 (the bracketed text in the quotation is a footnote in the 
original text). 
304 US written submission, para. 61. 
305 Antigua draws support for this assumption from the arbitral decision in the EC – Bananas III 
(Ecuador)  case, where the arbitrators consid ered it "obvious" that "suspension of commitments in service sub-
sectors or in respect of modes of service supply which a particular complaining party has not bound in its GATS Schedule is not available for application in practi ce and thus cannot be considered as practicable  EC – 
Bananas III  (Ecuador),  Decision by the Arbitrators, para. 71". The ar bitrator in that case further considered that 
it was "evident" for it "that Ecuador cannot suspend commitments or other obligations in sub-sectors of the distribution service sector in respect of which it has not entered into specific co mmitments in the first place  
EC – Bananas III  (Ecuador), Decision by the Arbitrators, para. 103 in fine.  However, as we have observed 
above, the text of Article 22.3 of the DSU refers to "concessions and other obligations " (emphasis added) within 
the relevant sector, rather than simply "concessions".  Therefore, the scope of the relevant obligations is not 
limited, in our view, to specific commitments bound in Antigua's GATS schedule.     
306 Antigua's written submission, para. 51. 
307 US written submission, para. 59: "the issue is not whether Antigua has made any commitments in 
sub-sector 10.D, but rather whether Antigua ha s made any commitments in all of sector 10". WT/DS285/ARB 
Page 66  
 
 4.54 As we have explained above, we believe that th e range of obligations to be considered for the 
purposes of a determination of whether suspension is pr acticable or effective in the same sector is not 
limited to those sub-sectors in which specific co mmitments have been made.  Nonetheless, we 
consider first Antigua's determination in respect of sub-sector 10.A ("Entertainment Services"), where 
it has made such commitments.
308    
4.55 Antigua first notes that it has been unable to lo cate statistical sources in relation to trade in 
entertainment services and thus concludes that the vol ume of such trade must be negligible.  We note 
that the United States does not dispute this assertion.  Nor has it suggested, in fact, that there exists 
any amount of imports from the United States falling under sub-sector 10.A, in respect of which Antigua could suspend concessions or other obligat ions.  We also note that the IMF Balance of 
Payments Statistics country tables submitted by th e United States provide a breakdown of Antigua's 
services imports by category, including a category for "personal, cultural and recreational services" 
under which no amount is reported for the years 1998 to 2005.   
4.56 In these circumstances, we consider that Antigua  could plausibly arrive at the conclusion that 
it was not practicable or effective for it to su spend concessions or other obligations under the GATS 
in respect of sub-sector 10.A, under which it has made a specific commitment.   
4.57 However, as observed above, we consider that , in addition to market access and national 
treatment specific commitments, other obliga tions under the GATS, including general GATS 
obligations, should also have been taken into acc ount by Antigua in making its determination as to 
whether suspension was practicable or effective in Sect or 10.  In this respect, we note that Antigua has 
only made a very general observation, in response to a question from the arbitrator, that "even if this 
enquiry were carried out to its fart hest extent to where Antigua had no obligations to the United States 
under the GATS at all ", "[t]he trade disparity is so great that United States service providers would 
suffer little harm at all, if any, while Antigua n consumers would be forced to scramble for 
replacement services at uncertain cost".
309  Antigua also observes that the United States has not argued 
that Antigua has a practical and effective remedy  in respect of "other obligations" under the GATS.310   
4.58 In considering this matter, we first note that there is only a limited number of such "other 
obligations" under the GATS, that Antigua would be able to suspend under the whole of Sector 10,  
i.e. including sub-sector "10.B, News agency ser vices";  "10.C, Libraries, archives, museums and 
other cultural services";  "10.D, Sporting and other r ecreational services";  and "10.E, Other".  In our 
view, the main relevant obligation in this respect  is the MFN obligation, contained GATS Article II, 
which obliges Antigua to accord immediately a nd unconditionally to US services and service 
suppliers treatment no less favourable than that it accords to like services and service suppliers of any 
other country.   
4.59 We recall our observation above that the IMF Ba lance of Payments statistics do not reflect 
any volumes of imports by Antigua in relation to  "Personal, Cultural and Recreational Services" 
between 1998 and 2005.  This would tend to suggest that no significant volumes of imports of such 
services takes place.  We also note that the United St ates has not in fact suggested that any amount of 
imports takes place with respect to Sector 10 from the United States, that could form the basis for 
suspension of obligations under the GATS.   We also note Antigua's argument that "[t]he trade disparity is so great that United States service provi ders would suffer little harm at all, if any, while 
                                                     
 
308 We also note that Antigua's request for authori zation to suspend concessi ons actually referred only 
to Sector 10.D and appeared to assu me that this was the "sector" to be considered.  Antigua subsequently 
acknowledged the relevance of the entirety of Sector 10 (although it then limited its enquiry, within Sector 10, 
to sub-sector 10.A, where it has made a commitment). 
309 Antigua's response to question No. 48 by the Arbitrator. 
310 Antigua's response to question No. 49 by the Arbitrator.  WT/DS285/ARB 
 Page 67 
 
 
 Antiguan consumers would be forced to scrambl e for replacement services at uncertain cost"311, and 
the fact that the United States has not given any specific indication that Antigua's assessment in 
respect of the practicability or e ffectiveness of suspension of othe r obligations under Sector 10 is 
incorrect.   
4.60 In light of these elements, we find that Antigua could plausibly arrive at the conclusion that it 
was not practicable or effective for it to suspe nd concessions or other obligations under the GATS in 
respect of Sector 10.   
(c) Whether Antigua has taken into account the factors identified in subparagraph (d) of 
Article 22.3 
4.61 We must now consider whether Antigua has ta ken due account, in maki ng its determination, 
of the factors identified in subparagraph (d) of Article 22.3.   
4.62 Antigua's arguments to explain that same-sector suspension is not practicable or effective, as 
examined above, relate to the volume of trade in the relevant sector and to the potential impact of suspending concessions or other obligations in that  sector both for Antigua (which it considers would 
be negative) and for the United States (which it c onsiders would be virtually non-existent).   
4.63 These elements fall squarely within the range of  factors that are pertinent for the purposes of 
paragraphs (i) and (ii) of subpara graph (d).  Specifically, we find th at these considerations relate to 
"the trade in the sector … under which the panel or the Appellate Body has found a violation" within 
the meaning of  subparagraph (d)(i), as well as to  the "broader economic elements" and "broader 
economic consequences" within the me aning of subparagraph (d)(ii).   
4.64 We find, therefore, that Antigua has take n into account the relevant elements in 
subparagraph (d) of Article 22.3, in  determining that it was not practicable or effective for it to seek 
suspension in the GATS sector in which the viol ation was found in accordance with subparagraph (b) 
of Article 22.3.  
(d) Conclusion 
4.65 In light of our determinations in sections (b) and (c) above, we find that Antigua could 
plausibly arrive at the conclusion that it was not practicable or effective to suspend concessions or 
other obligations under the GATS in respect of Sector 10, and determine that suspension of 
concessions or other obligations is not practicable or effective, with respect to the same sector as that 
in which a violation was found.  We also find that the United States has not demonstrated that Antigua 
had not followed the principles and procedures of  Article 22.3(b), in making this determination.  
E. R
EVIEW OF ANTIGUA 'S DETERMINATION IN RESPECT OF "OTHER SECTORS " UNDER THE GATS 
4.66 As noted above, Antigua sought an authoriza tion to retaliate both under the GATS and the 
TRIPS Agreement, but then indicated in the course of  the proceedings that it considered that it had no 
effective remedy under the GATS and was now se eking to suspend obligations under the TRIPS 
Agreement only.    
4.67 The United States considers that Antigua has not provided an adequate explanation of why it 
cannot seek to suspend concessions under the GA TS, as opposed to under the GATS and the TRIPS 
Agreement, and that Antigua's trade figures i ndicate that Antigua would have the option of 
suspending concessions or other obligations in the services area. 
                                                      
311 Antigua's response to question 48 by the Arbitrator. WT/DS285/ARB 
Page 68  
 
 4.68 The relevant provision, Article 22.3 (c), provides that: 
"[I]f [the complaining] party considers that it is not practicable or effective to suspend 
concessions or other obligations with respect to other sectors under the same 
agreement, and that the circumstances are serious enough, it may seek to suspend 
concessions or other obligations  under another agreement." 
4.69 Two cumulative conditions therefore have to be  met for a complaining party to be able to 
seek suspension under another agreement: 
(a) that complaining party considers that it is not  practicable or effective for it to suspend 
concessions or other obligations with respect to other sectors within the same agreement; and  
(b) that party considers that the circumstances are "serious enough". 
4.70 In addition, subparagraph (d) requires, in the a pplication of the principles of subparagraph (c), 
that the two factors considered above in the contex t of paragraph (b) suspension also be taken into 
account.  
4.71 We consider these elements in turn. 
1. Whether suspension of concessions or other ob ligations is practicable or effective in 
"other sectors" under the GATS 
4.72 The first condition under Article 22.3(c) of the DSU for the suspension of concessions to be 
sought in another agreement than that in which a violation was found, is that the complaining party 
has determined that it is "not practicable or effec tive" to suspend concessions or other obligations in 
other sectors within that agreement.  
4.73 In determining whether suspension is practicable or effective, the complaining party is also 
required to take into account the two factors identif ied in subparagraph (d), namely, in the case of an 
application of subparagraph (c): 
(a) the trade under the agreement under which a violation has been found and the 
importance of such trade to the complaining party (i.e., in this case, trade under the 
GATS and the importance of such trade to Antigua); and 
(b) the broader economic elements  related to the nullificati on or impairment and the 
broader economic consequences of the suspen sion of concessions or other obligations 
(which as noted above, could include a consid eration of the impact of the retaliation 
both on the party seeking to retaliate and on the party against whom retaliation is 
being sought). 
4.74 In approaching this part of our  determination, we are guided, mutatis mutandis , by the 
interpretations that we have deve loped in Section IV.C.1 above in relation to the same principles and 
procedures, as they relate to "same-sector" susp ension in the context of Article 22.3(b).   
4.75 We must therefore determine whether Antigua has considered the relevant facts objectively 
and whether, on the basis of these facts, it could pl ausibly arrive at the conclusion that it was not 
practicable or effective to seek suspension of con cessions or other obligations with respect to other 
sectors under the GATS.    WT/DS285/ARB 
 Page 69 
 
 
 4.76 In this part of our assessment, the relevant sectors to be considered are all principal sectors, 
within the meaning of MTN.GNS/W/120, other than Sector 10, under the GATS.  In respect of such 
sectors, the relevant "concessions or other obliga tions" under the GATS include, as determined above 
in relation to Article 22.3(b), not only any specifi c commitments made by Antigua with respect to 
those sectors, but also other obligations under the GATS that apply to this sector, such as the MFN 
obligation contained in Article II of the GATS.312  
4.77 We first address Antigua's gene ral argument that its volume of imports is insufficient to 
support suspension of obligations under the GATS alone at the level it is entitled to, before turning to 
the detail of Antigua's consideration of the prac ticability and feasibility of such suspension.   
(a) Level of suspension and availability of suspension under the GATS 
4.78 As noted above, Antigua has explained that the "first and most fundamental reason" for which 
it is not practicable or effective to suspend con cessions or other obligations under the GATS is that 
the volume of its imports from the United States in se rvices is nowhere near sufficient to absorb the 
level of suspension of concessions that it is entitled to.313  The United States, for its part, considers 
that Antigua's argument is flawed and that once the level is recalculated, it is in line with Antigua's 
services imports and suspension of services concessions is possible (and, in the US view, required).314 
4.79 As we noted in our preliminary observations, we will take into account, in assessing Antigua's 
arguments, our own earlier determination that the annual level of nullifica tion or impairment of 
benefits accruing to Antigua is in the amount of  US$21 million, significantly lower than Antigua's 
estimation.  We will compare this amount to th e annual level of Antigua's services imports from the 
United States in order to determine the extent to which suspension of concessions or other obligations 
entirely under the GATS is at least conceivable.    
4.80 Antigua indicates that its total imports of services amount to US$208.11 million for 2005.315  
In response to a question by the Arbitrator, the Un ited States observes that the figures presented by 
Antigua on its services imports appear to be consis tent with the IMF Balance of Payment statistics 
that the United States has itself pres ented to the Arbitrator as evidence.316  These statistics indicate a 
total value of US$204.85 for imports of services by Antigua.317   
4.81 Antigua indicates that it has not been able to allocate these services imports among its trading 
partners, and cites the US CIA's World Factbook in  support of the proposition that the United States 
accounts for 21.1 per cent of Antigua's services import s.  The notes and definitions of this Factbook 
suggest, however, that these figures relate to me rchandise imports, rather than services imports.318   In 
its request for authorization to suspend obligations , Antigua indicated that "[o]n an annual basis, 
approximately 48.9 per cent of these imported goods  and services come from single source providers 
located in the United States".319  The United States does not dispute this figure and refers to it in order 
to estimate the total value of Antigua's  imports of services for the United States.320  In the absence of 
                                                      
312 See above our determinations in paras. 4.41-4.45.  
313 Antigua's written submission, para. 48. 
314 US written submission, para. 61. 
315 Antigua's written submission, para. 48. 
316 US response to question 51 of the Arbitrator, para. 67. 
317 See US Exhibit US-2.  IMF Balance of Paym ents country table, Antigua and Barbuda. 
 318 See US CIA, The World Factbook 2007, at h ttps://www.cia.gov/library/publications/the-world-
factbook/docs/notesanddefs.html#2087 . 
319 Recourse by Antigua to Article 22.6 of the DSU, WT/DS285/22. No source is cited for this 
assertion.   
320 See US written submission,  para. 60, footnote 39. WT/DS285/ARB 
Page 70  
 
 any reliable alternative estimation provided by either party, we rely on Antigua's initial statement that 
the United States share in Antigua's imports of  services is "approximately 48.9 percent".   
4.82 Combining the amount of US$204.85 million with this  percentage, we arri ve at a total annual 
value of services imports from the United States to Antigua of US$101.77 million.  This thus represents the maximum value of services trade in r espect of which Antigua could potentially seek to 
suspend concessions or other obligations.  In light of  our earlier determination that the annual level of 
nullification or impairment of benefits accruing to Antigua in this case is in the amount of 
US$21 million, this means that it would in principle be possible for Antigua to seek suspension of concessions or other obligations entirely within the GATS.   
4.83 With this initial determination in mind, we turn  to a consideration of whether such suspension 
is, nonetheless, not practicable or effectiv e within the meaning of Article 22.3(c). 
(b) Practicability and effectiveness of suspension in other sectors 
4.84 In considering this question, we first recall our  determinations in pa ragraph 4.29above on the 
nature of the assessment to be conducted in applying the principles of Article 22.3.  Specifically, we 
recall our determinations that an examination of the "practicability" of an alternative suspension 
concerns the question whether such an alternative is  available for application in practice as well as 
suited for being used in a particular case.  We also recall our determination that in contrast, the thrust 
of the "effectiveness" criterion empowers the party seek ing suspension to ensure that the impact of 
that suspension is strong and has the desired result, namely to induce compliance by the Member 
which fails to bring WTO-incons istent measures into compliance with DSB recommendations and 
rulings within a reasonable period of time.  
4.85 We also bear in mind our related determinati on that a consideration of the practicability and 
the effectiveness of an alternative suspension with in the same sector or under the same agreement 
does not need to lead to the conclusion that such an alternative suspension is both not practicable and 
not effective in order to meet the requirements of Ar ticle 22.3.  This implies that it would be sufficient 
for Antigua to have determined that suspension under the GATS in respect of other sectors is not 
effective, even if it is practicable.  
4.86 Antigua has provided some general arguments relating to the size of its economy and the 
relative sizes of the economies of the United States and Antigua, as well as some more specific indications why it would not be pr acticable or effective to suspe nd concessions in specific services 
sectors.  We consider these in turn.   
4.87 Antigua has first stressed the fact that, as a small economy with limited natural resources, it is 
heavily dependant on imports of goods and services, including from the United States, so that the 
imposition of additional duties on pr oducts imported from the United States or on the provision of 
services from the United States would have "a di sproportionate adverse impact on Antigua and 
Barbuda by making these products and services materi ally more expensive to the citizens of the 
country".
321   Antigua also notes that with respect to most services other than "Sector 10.D", covered 
by Antigua's GATS schedule, suspension of concessions  in the form of higher duties, tariff, fees or 
other restrictions would have a disproportionate  impact on the economy of Antigua and virtually no 
impact of the United States.  
4.88 As a preliminary matter, we note that Antigua's  arguments include references to the potential 
impact of a suspension in respect of trade in  goods.  Our assessment is however limited to a 
                                                      
321 Recourse to Article 22.2 by Antigua, WT/DS285/22.  WT/DS285/ARB 
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 consideration of suspension of obligations under th e GATS.  We therefore make no determination in 
relation to the potential impact of a possible suspension of obligations in relation to trade in goods.    
4.89 To the extent that it relates to the suspen sion of obligations under the GATS, Antigua's 
concern that, as a small import-dependent economy, it could suffer an adverse impact from such 
suspension, is in our view pertinent to an assessment of whether suspension is practicable or effective.  
Specifically, we consider that these circumstance s have the potential to affect significantly the 
effectiveness of the proposed suspension.   
4.90 We note in this respect the determination of the arbitrators in EC – Bananas III (Ecuador) , 
that, in a situation "where a great imbalance in  terms of trade volume and economic power exists 
between the complaining party seeking suspension and the other party which has failed to bring 
WTO-inconsistent measures into compliance w ith WTO law" "and in situations where the 
complaining party is highly dependent on imports  from the other party, it may happen that the 
suspension of certain concessions or certain other obligations entails more harmful effects for the 
party seeking suspension than for the other party".322  In the view of that arbitrator, "in these 
circumstances, a consideration by the complaini ng party in which sector or under which agreement 
suspension may be expected to be least harmful to itself would seem sufficient for us to find a 
consideration by the complaining party of the e ffectiveness criterion to be consistent with the 
requirement to follow the principles and procedures set forth in Article 22.3".323 
4.91  At the same time, we agree with the United Stat es that general statements relating to the size 
of the complaining party's economy or the relative size of the economies of both parties do not justify 
a departure from the requirements of Article 22.3 of the DSU.  Rather, the complaining party is 
required, in all cases, to follow the specific sequence of steps provided in this  provision and to make a 
determination in respect of each of its elements as re levant.  In this context, an explanation of how 
such circumstances affect the practicability or e ffectiveness of the proposed suspension would in our 
view be required, in order for these considerations to validly support a determination that it is not 
practicable or effective to suspend concessions or  other obligations in other sectors under the same 
agreement within the meaning of Article 22.3.   
4.92 In this case, Antigua has not limited itself to ge neral assertions as to the size of its economy, 
in itself or relative to the US economy.  It has also provided arguments to explain how the potential adverse impact of suspension of obligations would ma nifest itself in various specific sectors under the 
GATS in respect of which suspension might be considered.  
4.93 Antigua thus explained that it initially envisaged the suspension of concessions or other 
obligations in telecommunication services, but that , upon more detailed review  of the import and use 
of telecommunications services in Antigua, it had de termined not only that the volume of the trade 
was low (US$5.03 million) but that disruptions in  changing services and suppliers and increased cost 
to Antiguan consumers would result in a heav ier burden on Antiguan citizens as the result of 
suspending concessions in this area while having no perceptible impact on the United States.
324 
4.94 Antigua has also explained that the arguments it made in respect of Sector 10 ("Entertainment 
services") also hold true for other sectors of the GATS in which Antigua has made specific 
commitments in its Schedule.  Antigua explains that , of the total value of services imports to Antigua 
in 2005, the main services imported were transpor tation (US$ 70.7 million), travel (US$ 40.1 million) 
and insurance services (US$35.5 million).  Antigua argu es that if it were to suspend concessions with 
respect to these services, given the low level of these imports, it is clear that the suspension would 
                                                      
322 EC – Bananas III (Ecuador) (Article 22.6 – EC), para. 73. 
323 EC – Bananas III (Ecuador) (Article 22.6 – EC), para. 73. 
324 Antigua's written submission, para. 53. WT/DS285/ARB 
Page 72  
 
 have virtually no impact upon the United States, while having to replace these services from other 
service providers, if reasonably practicable at all, would most likely prove to be more expensive to 
Antiguan consumers.
325 
4.95 The United States considers that WTO statistics indicate that Antigua's "other services 
imports" (services other than travel and transport) are in fact larger than its "other services exports", 
and thus are "an obvious candidate" for a request for suspension of concessions.326   It is not clear to 
us why the United States considers that  the fact that Antigua's exports of services other than travel and 
transport are larger than its imports of services in  the same category makes such imports "an obvious 
candidate" for suspension of concessions.  To the ex tent that the United States assumes that, in these 
circumstances, the provision of the imported services could be replaced with the provision of the same 
services by local suppliers, this assumption would seem to be unverifiable, in the absence of any 
specific indication on the composition and distribution of such imports and exports.    
4.96 The United States further notes that Antigua has even higher levels of services imports for 
travel and transport services.  The United States argues that although Antigua's economy does depend to a substantial extent on tourism, it does not necess arily follow that suspension of concessions in the 
areas of travel and transport would adversely affect Antigua's tourism industry.
327  The United States 
also notes, however, that, in light of the relia nce of the Antiguan economy on tourism, it has not 
contested Antigua's assertion that it would not be practicable or effective for Antigua to suspend 
concessions in a manner that might discourage US tourists.328  Thus, the United States notes, it has not 
argued, for example, that Antigua should suspe nd concessions with regard to US travel services.329   
4.97 The United States therefore seems to accept th at the suspension of concessions or other 
obligations in respect of tourism services, or of ot her services that may have an impact on the tourism 
industry, may be such as to adversely affect Anti gua, and that this may render such suspension not 
practicable or effective within the meaning of Article 22.3(c).  We agree that suspension of 
obligations in respect of such services would ha ve the potential to adversely affect Antigua's 
economy, while not necessarily having any percep tible impact on inducing compliance by the United 
States. 
4.98 We also note that, by their very nature, services transactions are closely woven into a 
country's domestic economic fabric, with many cross- sectoral linkages.  This is typically the case for 
so-called infrastructural services,  such as large segments of the transport, telecommunications and 
financial services sectors.  In our view, it is plausi ble that suspension of obligations against US firms 
established in Antigua in such sectors could entail a negative impact for the Antiguan local economy.  
The risk of economic disruption in case of forced div estiture, or similar measures, is not negligible, in 
particular for small economies.  For instance, it is not clear to what extent Antiguan services suppliers 
would be able or willing to step in for US services suppliers obliged to suspend their operation or even leave the country.  Moreover, legislative a nd other measures protecting foreign investors may 
make it difficult in practice to take  and enforce action against them.  
                                                     
 
325 Antigua's written submission, para. 52. 
326 US written submission, para. 60. 
327 US written submission, para. 60. 
328 See Antigua's oral statement, para. 37: "the United States apparently suggests that we prohibit 
American entertainers from offering services to consumers in Antigua, that we ban American tourists from 
visiting our resorts and that we prohibit American vessels and aircraft from bringing goods and holiday-makers 
to our tiny island.  It should not require any deep econom ic analysis to see the futility of these suggestions".   
The Arbitrator notes that "ban[ning] American tourists  from visiting [Antigua's] resorts" would not constitute a 
relevant form of retaliation under the GATS for Antigua. 
329 US response to question 69 of the Arbitrator.  WT/DS285/ARB 
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 4.99 Overall, in light of all these elements, we consider that Antigua has provided sufficient 
elements in support of its determin ation, to satisfy us that it has considered objectively the relevant 
elements and that it could plausibly, on the basi s of these elements, reach the conclusion that it was 
not practicable or effective to suspend concessions or  other obligations with respect to "other sectors" 
under the GATS.  By contrast, the United States has not  demonstrated to us that Antigua has not met 
the requirements of Article 22.3(c) of the DSU.  In fact, even if it considers Antigua's explanations to 
be overall insufficient, the United States apparen tly recognizes the legitimacy of Antigua's concerns, 
and their relevance to this determination, with respect  to at least some sectors.   The United States has 
not, on the other hand, persuaded us that there ar e services sectors in which Antigua could suspend 
concessions or other obligations practicably or effectively.   
4.100  In making this determination, we recognize that the elements provided by Antigua in 
explaining how it arrived at its determination ar e somewhat limited.  Specifically, we have been 
provided with only limited information on the ex act composition of Antigua's services imports, 
including the share of US imports in various sectors.   However, we are not persuaded that it would be 
reasonable to expect Antigua to be in a position to  produce, in the context of these proceedings, such 
detailed sector-specific statistics and data relating to its bilateral services trade.  In this respect, we 
find it appropriate to take into account, in reviewing Antigua's determination, that it may not maintain 
such data on a regular basis, in the same way as some developed countries or larger developing 
countries may do.  Indeed, the United States itself h as also not provided us with any more detailed 
information on the volume and distribution of  its services trade with Antigua.      
(c) Antigua's consideration of the elements in subparagraph (d) 
4.101  We must now consider whether Antigua has ta ken due account, in maki ng its determination, 
of the factors identified in subparagraph (d) of Article 22.3.   
4.102  As determined in paragraph 4.73 above, we consider that the relevant trade to be considered 
for the purposes of subparagraph (d)(i) is the trade unde r the relevant agreement, namely, in this case, 
trade in services (with the exception of trade in r espect of Sector 10).  Antigua's arguments as 
discussed in the preceding section sufficiently establis h, in our view, that Antigua considered the 
relevant trade, as well as the importance of su ch trade to Antigua's economy, in making its 
determination.   
4.103  Subparagraph (d)(ii) requires that the "broader  economic elements" relating to the Member 
suffering the nullification or impairment, as well as  the "broader economic consequences" of the 
suspension also be taken into account.  As we have determined in paragraph 4.37 above, we consider 
that the latter element relates to the consequences both on the complaining party and on the party that 
was found not to be in compliance with its obligati ons under the covered agreem ents.   As observed in 
the preceding section, Antigua's consideration of th e effectiveness or practicability of suspension of 
obligations in "other sectors" under the GATS turn ed importantly on a consideration of the general 
economic circumstances of Antigua as a small import-dependent economy, in other words, the 
"broader economic elements" relating to Antigua.  An tigua's determination also importantly involved 
a consideration of the potential adverse impact of  such suspension on Antigua's economy, contrasted 
with the limited impact that such suspension could be expected to have on the United States, in other 
words, the "broader economic consequences" of such suspension for both parties.   
4.104  We are therefore satisfied that Antigua has taken into account the relevant factors identified in 
Article 22.3(d) in its determination of whether su spension of concessions or other obligations with 
respect to "other sectors" under the GATS is practicable or effective.    WT/DS285/ARB 
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 (d) Conclusion 
4.105  In light of our determinations in sections (b) and (c) above, we find that Antigua could 
plausibly arrive at the conclusion that it was not pr acticable or effective for it to suspend concessions 
or other obligations in respect of other sectors under the GATS, and determine that suspension of concessions or other obligations is not practicable or effective, with respect to other sectors than that 
in which a violation was found, under the same agr eement.  We also find that the United States has 
not demonstrated that Antigua has not followed the principles and procedures of  Article 22.3(c), in 
making this determination.  
2. Whether the circumstances are serious enough 
4.106  Finally, we must review Antigua's determina tion that the "circumstances are serious enough", 
so that suspension of obligations can be s ought under another agreement, in accordance with 
Article 22.3(c).   
4.107  The text of Article 22.3(c) provides no express gui dance how this aspect of the determination 
is to be understood.  Like the arbitrators in the EC – Bananas III (Ecuador) (Article 22.6 – EC)
 case, 
we note that the factors to be taken into account under subparagraph (d) may provide some contextual 
guidance.  We therefore consider that the trade at issue and its importance to the complaining party, as 
well as the broader economic el ements relating to the Member suffering the nullification or 
impairment and the broader economic consequences of  the proposed suspension on the parties may be 
relevant in the context of a determination that  the circumstances are "serious enough".    
4.108  We also consider, more generally, that this aspect of the determination, which relates to 
"circumstances", is of necessity an assessment to be made on a case-by-case basis, and that the 
circumstances that are relevant may vary from case to case.  We note however, that these 
circumstances should be "serious enough", which s uggests that it is only when the circumstances 
reach a certain degree or level of importance, that  they can be considered to be "serious enough" 
within the meaning of Article 22.3(c).  
4.109  In order to demonstrate the seriousness of the circumstances in this case, Antigua first 
presents some basic figures comparing the population, size, GDP, exports and imports of the United 
States and Antigua, which illustrate a cons iderable disparity in all of these areas.330    
4.110  Antigua also highlights that it has extremely lim ited natural resources and very limited arable 
land, such that it cannot produce sufficient agricultu ral products to satisfy dom estic needs, let alone 
for export.  Antigua further notes that its ec onomy has become highly dependent on tourism and 
associated services, including hotels and restaurants, retail trade, construction, real estate and housing 
and transportation.331  Antigua also highlights the vulnerab ility of the tourism sector to external 
factors (such as weather conditions, security threats or economic downturn in source markets) and the 
fact that it tends to employ unskilled wo rkers and generate low-paying jobs.   
4.111  Third, Antigua highlights the need to diversify its economy, and that in order to do this it has 
tried to develop trade in services, including trade in  remote gambling, with the active involvement of 
the Antiguan Government.  Antigua suggests that prior to 1998, the United States Government even 
supported Antigua in its efforts to develo p and supervise the remote gaming industry.332      
                                                      
330 Antigua's written submission, para. 55. 
331 Antigua's written submission, para. 58. 
332 Antigua's written submission, para. 64.  WT/DS285/ARB 
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 4.112  The United States disagrees with Antigua's unde rstanding of the US Government support 
provided to Antigua in developing trade in remote gambling333, but it does not otherwise dispute 
Antigua's statements in respect of  the elements described above.   
4.113  In our view, it was reasonable for Antigua to dete rmine, in light of the elements it highlights, 
that the circumstances are "serious enough" within the meaning of Article 22.3(c).  Specifically, in our 
view, the various considerations highlighted by An tigua are such as to exacerbate the difficulties in 
finding a way to suspend concessions or other obliga tions in a practicable or effective manner under 
the GATS.   
4.114  We note in this respect that the extremely unba lanced nature of the trading relations between 
the parties makes it all the more difficult for Antigua  to find a way of ensuring the effectiveness of  a 
suspension of concessions or other obligations agains t the United States under the same agreement.   
We also note that the heavy reliance of Antigua 's economy on the very sectors that would be 
candidates for retaliation under the GATS increases th e likelihood that an adverse impact would arise 
for Antigua itself, including for low-wage workers. 
4.115  These circumstances can be directly related to the practicability and effectiveness of 
suspension under the GATS, i.e. the first condition in order for Antigua to seek suspension outside 
that agreement.    
4.116  In light of these elements, we find that Antigua  could plausibly make a determination that 
"the circumstances are serious enough", within the meaning of Article 22.3(c). 
F. OVERALL CONCLUSION  
4.117  In light of our determinations above, we conclude that Antigua has applied the principles and 
procedures of Article 22.3 of the DSU consistent ly with the terms of that provision.   
4.118  Specifically, we find that Antigua's determinati on that it is not practicable or effective to 
suspend concessions or other obligations with respect to the same sector as that in which a violation 
was found is consistent with the requirements of Arti cle 22.3.(b), and that its determination that it is 
also not practicable or effective to suspend con cessions or other obligations with respect to other 
sectors under the same agreement and that the circum stances are serious enough is consistent with the 
requirements of Article 22.3(c) of the DSU. 
4.119  Accordingly, we find that Antigua may seek  to suspend obligations under the TRIPS 
Agreement.  
V. EQUIVALENCE AND IMPLEMENTATION OF SUSPENSION OF OBLIGATIONS 
UNDER THE TRIPS AGREEMENT 
5.1 The United states has requested the Arbitrator to  require Antigua to specify how it will ensure 
that any suspension of concessions or other obliga tions does not exceed the level of nullification and 
impairment found by the Arbitrator.   We now address this matter.  
A. ARGUMENTS OF THE PARTIES  
5.2 In its written submission, the United States not es that Antigua's request does not place any 
value on GATS and TRIPS concessions and does not e xplain what mechanisms Antigua intends to 
use to ensure that the level of suspension does not exceed the level of nullification and impairment.  
                                                      
333 US declaration in response to oral question by the Arbitrator at the meeting with the parties. WT/DS285/ARB 
Page 76  
 
 The United States argues that the Arbitrator should require Antigua to specify how it will ensure 
this
334 and that without this information, it would be  impossible for the Arbitrator to determine the 
equivalence of the level of suspension of concessions  with the level of nullification and impairment, 
as is required by DSU Article 22.7.335  In the United States view, therefore, the Arbitrator should thus 
not find that Antigua is allowed to suspend TRIPS concession.336 
5.3 The United States argues that the Antiguan gambling industry has been targeting US 
consumers in knowing violation of US criminal laws .  According to Antigua's own answers, Antigua 
had no idea about the level of supposed Antiguan gambling revenues until it paid for a report from a 
private gambling consultant.  Also, Antigua appa rently allows these same companies to operate 
outside Antiguan law.  In particular, its respon ses indicate that although it had adopted a corporate 
income tax in the period 2001-2003, the gambling co mpanies never paid it.  The United States also 
alleges that even where Antigua has information fro m the gambling companies that is relevant to the 
outcome of the arbitration, it refuses to provide such  information in order to shield those companies 
from prosecution under the criminal laws of another WTO Member.  The United States expresses its concern that, in these circumstances,  any suspension of TRIPS concessions could lead to or encourage 
the piracy of intellectual property rights by internet operators in Antigua.  Without strict supervision 
by the Government of Antigua, there would be no b asis to calculate the level of suspension, or to 
determine whether the operators were abusing the authorization to suspen d TRIPS concessions by 
offering pirated intellectual property in jurisdictions  outside Antigua.  According the US, Antigua has 
explained that it has not even begun to address such issues.  The Unite d States asserts that an 
authorization to suspend TRIPS concessions coul d encourage rampant and uncontrolled IPR piracy, 
and that such an outcome would serve no legitimate interests of any WTO Member.
337 
5.4 Antigua counters that the imposition of a requireme nt for it to specify how it will ensure that 
the level of suspension of concessions does not exc eed the level of nullification determined by the 
Arbitrators would not be within the terms of refe rence of the Arbitrators under Article 22.7 of the 
DSU.  It argues that it is well established from prio r arbitrations under Article 22 of the DSU that the 
complaining party is not required to specify preci sely which "obligations" it intends to suspend once 
the suspension of concessions or othe r obligations is authorized by th e DSB, nor is it the role of the 
arbitrators to so determine.338   
5.5 In Antigua's view, the Arbitrators do not need to have knowledge of how Antigua intends to 
achieve its remedy under the covered agreements.  Fu rthermore, Antigua would not be in a position to 
indicate how it intends to calculate and track the retaliation value in each sector of the TRIPS 
Agreement under which it seeks to suspend concession or other obligations, and to ensure that the 
level of suspension of concessions does not exceed the level of nullification and impairment.  Once 
Antigua is given authorization to  suspend concessions or other ob ligations, and once the level of 
authorization is set, then Antigua will assess its alte rnatives.  Authorization does not require Antigua 
to actually impose any retaliatory measures and its Government has decided to make that decision 
when the time comes.339  Antigua argues that the "equivalence" is achieved by first setting the level of 
nullification and impairment and thereafter Antigua  setting the suspension of concessions or other 
obligations at the same level.340 
                                                      
334 Para. 63 of the US written submission. 
335 US response to question 55. 
336 Para. 28 of US comments on Antigua's responses. 
337 Ibid., paras. 29-30. 
338 Paras. 127-128 of Antigua's written submission. 
339 Antigua's responses to questions Nos. 55 and 56. 
340 Para. 78 of Antigua's comments on US responses.  WT/DS285/ARB 
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 B. ANALYSIS BY THE ARBITRATOR  
5.6 In its request for authorization to suspend c oncessions or other obligations, Antigua identified 
certain obligations under the TRIPS Agreement, that  it proposed to suspend.  Specifically, Antigua 
indicated that it intends to take countermeasures in the form of suspension of concessions and 
obligations under the following sections of Part II of the TRIPS: 
Section 1: Copyright and related rights 
Section 2: Trademarks Section 4: Industrial designs Section 5: Patents Section 7: Protection of undisclosed information. 
 
5.7 As we have determined above, Antigua may seek to suspend obligations under the TRIPS 
Agreement.  In order for such suspension to be equi valent to the level of nullification or impairment 
of benefits accruing to Antigua, it must not exceed US$21 million.   
5.8 It is incumbent on Antigua to ensure that, in applying such suspension,  it does not exceed this 
level.  Antigua has declined to provide any expl anation on how it proposes to  apply such suspension 
and how it will ensure that the level of the pr oposed suspension does not exceed the level to be 
authorized by the DSB.  We regret that Antigua di d not find it useful to provide such explanations.  
5.9 We note that our mandate does not allow us, in reviewing the equivalence of the proposed 
suspension with the level of nullification or impairment , to consider the "nature" of the obligations to 
be suspended.
341  We understand this to mean  that we may not question the complaining party's choice 
of specific obligations to be suspended (other than  in the context of considering a claim that the 
principles and procedures of Article 22.3 have not been  followed) and that we must assess the level of 
the proposed suspension, rather than its form, ag ainst the level of nullification or impairment.   
5.10 At the same time, it is important that the form th at is chosen in order to enact the suspension 
is such as to ensure that equiva lence can and will be respected in the application of the suspension, 
once authorized.  The form should also be transparen t, so as to allow an a ssessment of whether the 
level of suspension does not exceed the level of nullif ication.  We also note that the suspension of 
obligations under the TRIPS Agreement may involv e more complex means of implementation than, 
for example, the imposition of higher import duties on goods, and that the exact assessment of the 
value of the rights affected by the suspen sion is also likely to be more complex.342   
5.11 In the light of these considerations, we not e the remarks made by the arbitrators in EC – 
Bananas III (Ecuador), on the suspension of TRIP S obligations in that case.343  We consider these 
remarks to also be relevant to th is case, in that the same considerati ons will be pertinent to the manner 
in which Antigua might implement a suspension of  its obligations under the TRIPS Agreement. 
5.12 Like the arbitrators in EC – Hormones (US) (Article 22.6 – EC )344, US – 1916 Act (EC) 
(Article 22.6 – US)345, and US - Byrd Amendment (Article 22.6 - EC)346, we also note that the United 
                                                      
341 See Article 22.7 of the DSU ("Th e arbitrator acting pursuant to paragraph 6 shall not review the 
nature of the concessions or other obligations to be suspended..."). 
342 This is illustrated well by the explanations provided by Ecuador in the EC – Bananas III (Ecuador) 
(Article 22.6 – EC) case as to how it proposed to implement the proposed suspension of TRIPS obligations, 
including through the setting up of specific government-run schemes.  
343 EC – Bananas III (Ecuador) (Article 22.6 – EC), section V (paras. 139 to 165).  
344 EC – Hormones (US) (Article 22.6 – EC), para. 82. 
345 US – 1916 Act (EC) (Article 22.6 – US ), para.9.2. 
346 US - Byrd Amendment (Article 22.6 – EC),  para. 4.27. WT/DS285/ARB 
Page 78  
 
 States may have recourse to the appropriate dis pute settlement procedures in the event that it 
considers that the level of concessions or other oblig ations suspended by Antigua exceeds the level of 
nullification or impairment we have determined for purposes of the award. 
5.13 Finally, we note that Article 22.8 of the DSU provides that: 
"The suspension of concessions or other ob ligations shall be temporary and shall only 
be applied until such time as the measure f ound to be inconsiste nt with a covered 
agreement has been removed, or the Member that must implement recommendations or ruling provides a solution to the nullifi cation or impairment of benefits, or a 
mutually satisfactory solution is reached. ..." 
 
VI. AWARD  
6.1 For the reasons set out above, the Arbitrator de termines that the annual level of nullification 
or impairment of benefits accuing to Antigua in this case is US$21 million and that Antigua has 
followed the principles and procedures of Article 22.3 of the DSU in determining that it is not 
practicable or effective to suspend concessions or other obligations under the GATS and that the 
circumstances were serious enough.  Accordingly, th e Arbitrator determines that Antigua may request 
authorization from the DSB, to suspend the oblig ations under the TRIPS Agreement mentioned in 
paragraph 5.6 above, at a level not  exceeding US$21 million annually.   
 
_______________ 
 
  WT/DS285/ARB 
 Page 79 
 
 
 ANNEX A 
 
United States – Measures Affecting the Cross-Border Supply 
 of Gambling and Betting Services 
(WT/DS285) 
 
Arbitration pursuant to Article 22.6 of the DSU  
  
Working Procedures 
  
The Arbitrator will follow the normal working proce dures of the DSU where relevant and as adapted 
to the circumstances of the present proceedings, in accordance with the timetable  it has adopted.  In 
this regard: 
 
1. The Arbitrator will meet in closed session; 
2. The deliberations of the Arbitrator and the documents submitted to it shall be kept 
confidential.  This is without prejudice to the partie s' disclosure of statements  of their own positions to 
the public, in accordance with  the normal working procedures of the DSU;  
3. At its substantive meeting w ith the parties, the Arbitrator will ask the United States to present 
its views first, followed by Antigua and Barbuda;  
4. The Arbitrator may at any time during the pr oceedings put questions to either party.  
Whenever appropriate, the Arbitrator shall accord th e other party a period of time to comment on the 
responses; 
5, Each party shall make available to the Arbitrat or and to the other party a written version of its 
oral statement by noon of the first working day following the meeting with the parties.  Each party is 
encouraged to provide a provisional written version of its oral statement at the time the oral statement 
is presented;   
6. Each party shall submit all factual evidence to  the Arbitrator no later than in its written 
submission to the Arbitrator, except with respect to  evidence necessary for the purposes of rebuttal or 
for answers to questions.  Derogations to this procedure will be grante d upon a showing of good 
cause.  In such cases, the Arbitr ator shall accord the other party a period of time for comments, as 
appropriate; 
7. To facilitate the maintenance of  the record of the arbitration and to maximize the clarity of 
submissions and other documents, in particular the references to exhibits submitted by parties, each 
party shall sequentially number its exhibits throughout the course of the arbitration; 
8. Each party has the right to determine the co mposition of its own delega tion.  Delegations may 
include, as representatives of the government concerned,  private counsel and advisers.  Parties shall 
have responsibility for all members of their delegati ons and shall ensure that all members of their 
delegations act in accordance with the rules of the DSU and these Work ing Procedures, particularly in 
regard to confidentiality of the pro ceedings.  Each party shall provide a list of the participants of its 
delegation prior to, or at the beginning of, any meeting with the Arbitrator; 
9. Any request for a preliminary ruling to be ma de by the Arbitrator sh all be submitted no later 
than in a party's first submission.   If the United States requests any such ruling, Antigua and Barbuda WT/DS285/ARB 
Page 80  
 
 shall submit its response to such a request in its fi rst submission.  If Antigua and Barbuda requests any 
such ruling, the United States shall submit its response to such a request no later than the beginning of 
the substantive meeting with the Arbitrator.  De rogations to this proce dure will be granted upon 
showing of a good cause; 
10. Each party shall provide an electronic copy (on a computer format compatible with the 
Secretariat's programmes) together with the printe d version (8 copies) of its submissions, including 
the methodology paper, on the due date foreseen in th e timetable.  All these copies must be filed with 
the Dispute Settlement Registrar, Mr. Ferdinand Ferranco (office 2150).  Electronic copies should be 
sent by e-mail to Mr. Ferranco at DSregistry@wto.org;  
11. Except as otherwise indicated in the timeta ble or in these working procedures, submissions 
should be provided at the latest by 5.00 p.m. on th e due date.  As is customary, distribution of 
submissions to the other party shall be made by the parties themselves; 
12. These working procedures may be modified by the Arbitrator as appropriate, after having 
consulted the parties.    WT/DS285/ARB 
 Page 81 
 
 
 ANNEX B 
LETTER FROM THE ARBITRATOR TO THE ECCB 
 
 
22 November 2007 
 
 Dear Sir Dwight,  
I am writing to seek your assistance in clarifying certain factual issues that have arisen in 
relation to data collected by the ECCB for Antigua and Barbuda.  These questions arise in the context 
of ongoing arbitral proceedings in the WTO dispute settlement case US – Measures Affecting the 
Cross-Border Supply of Gambling and Betting Services , which I am chairing.  We would be 
extremely grateful for any assistance you may be able to provide.   
In the context of these proceedings, the parti es (the United States, and Antigua and Barbuda) 
have presented evidence relating to the market fo r remote gambling services.  Reference has been 
made in particular to the ECCB's National Acc ount Statistics (see attachment – Exhibit AB 6, 
Table 3.1).  In relation to this data, Antigua a nd Barbuda has produced a letter by the ECCB stating 
that remote gambling revenues are not accounted for in GDP (see attachment – Exhibit AB 12).    
We would be very grateful if you co uld respond to the following questions:   
 1. Are Antigua and Barbuda's remote gambli ng revenues reported for balance of payments 
(BOP) purposes?   Specifically, we would like to know how you report (i) bets placed (i.e. gross 
amounts wagered), (ii) payments of winnings and ( iii) the margin between bets placed and payments 
of winnings, i.e. net remote gambling revenues.  . In addition, could you please inform us under which 
item of the financial account you record the corresponding entries, e.g. under bank deposits? 
2. Could you clarify whether related transacti ons, such as imported inputs into remote gambling 
(perhaps reflected in the debit position of va rious business services of the current account) and 
expatriated profits (perhaps reflect ed in the debit position "investment income" of the current account) 
are reported.   
3. If none of these transactions are reported, please  indicate how this is possible given that, as 
we understand it, the ECCB compiles the information,  to a certain extent, from records of commercial 
banks, and not exclusively from company surveys of gambling operators, who may not report.   
4. May we also ask you whether data on Anti gua and Barbuda's remote  gambling revenue is 
contained in any other information base that you may maintain or whether you may be able to point us 
to alternative sources of information in that regard. 
 
We are also sending a similar inquiry to the In ternational Monetary Fund.  In view of the 
extremely tight deadlines under which we are operating in these proceedings, we would appreciate it greatly if you are able to provide us with a res ponse to these questions by Friday, 30 November 2007. ..... 
..... WT/DS285/ARB 
Page 82  
 
  
 We thank you in advance for your kind assistance and very much look forward to receiving your response, which I am certain will be of great help  to the Arbitrator in its assessment of the matter 
before it.  
  Yours sincerely, 
    
  Lars Anell 
  Chairman 
  United States - Measures Affecting the Cross-Border  
  Supply of Gambling and Betting Services –    Recourse by the United States to Article 22.6 of the DSU 
 
  
c.c.  Ms Laurel Bain, Director of the Statisti cs Department (statistics-sec@eccb-centralbank.org). 
 
  WT/DS285/ARB 
 Page 83 
 
 
 ANNEX C 
LETTER FROM THE ARBITRATOR TO THE IMF 
 
 
22 November 2007 
 
Dear Mr. Strauss–Kahn,  
I am writing to seek your assistance in clarifying certain factual issues that have arisen in 
relation to data for Antigua and Barbuda published by  the IMF.  These questions arise in the context 
of ongoing arbitral proceedings in the WTO dispute settlement case US – Measures Affecting the 
Cross-Border Supply of Gambling and Betting Services , which I am chairing.  We would be 
extremely grateful for any assistance you may be able to provide.   
In the context of these proceedings, the parti es (the United States, and Antigua and Barbuda) 
have presented evidence relating to the market fo r remote gambling services.  Reference has been 
made in particular to the IMF's 2006 Balance of Payments Yearbook, country table for Antigua and 
Barbuda (see attachment – Exhibit US 2).    
We would be very grateful if you co uld respond to the following questions:   
 
1. Could you please let us know the source of that data and whether it includes Antigua and 
Barbuda's remote gambling services?  Specifically, we would like to know how you report (i) bets placed (i.e. gross amounts wagered), (ii) payments of winnings and (iii) the margin between bets 
placed and payments of winnings, i.e. net remote gambling revenues.  In addition, could you please 
inform us under which item of the financial account you record the corresponding entries, e.g. under 
bank deposits? 
2. Could you clarify whether related transacti ons, such as imported inputs into remote gambling 
(perhaps reflected in the debit position of va rious business services of the current account) and 
expatriated profits (perhaps reflect ed in the debit position "investment income" of the current account) 
are reported.   
3. If none of these transactions are reported, please  indicate how this is possible given that, as 
we understand it, the ECCB compiles the information,  to a certain extent, from records of commercial 
banks, and not exclusively from company surveys of gambling operators, who may not report.   
4. May we also ask you whether data on Anti gua and Barbuda's remote  gambling revenue is 
contained in any other information base that you may maintain or whether you may be able to point us 
to alternative sources of information in that regard? 
We are also sending a similar inquiry to the Eastern Caribbean Central Bank.  In view of the 
extremely tight deadlines under which we are operating in these proceedings, we would appreciate it greatly if you are able to provide us with a res ponse to these questions by Friday, 30 November 2007.  WT/DS285/ARB 
Page 84  
 
  
We thank you in advance for your kind assistance and very much look forward to receiving 
your response, which I am certain will be of great help  to the Arbitrator in its assessment of the matter 
before it. 
 
  Yours sincerely,    
 
  Lars Anell   Chairman 
  United States - Measures Affecting the Cross-Border  
  Supply of Gambling and Betting Services –    Recourse by the United States to Article 22.6 of the DSU 
 
  
c.c.  Mr. Edwards Director of the Statistics Department, IMF (redwards@imf.org). 
  WT/DS285/ARB 
 Page 85 
 
 
 ANNEX D 
LETTER FROM IMF TO THE ARBITRATOR 
 
13 December 2007 
 
The Fund's Executive Board has authorized me to re spond to your letter dated November 22, 2007 to 
Mr. Strauss-Kahn, seeking clarifications of statistic al data for Antigua and Barbuda published by the 
IMF in the Balance of Payments Statistics Yearbook. 
 
As a general reply, I can say that we have very little information on the value of Antigua and 
Barbuda's remote gambling revenue. 
 
In response to your specific ques tions, please find below our responses: 
 
1. The data published in the Yearbook for Antigua and Barbuda were supplied by the Eastern 
Caribbean Central Bank (ECCB).  The ECCB is r esponsible for compiling balance of payments 
statistics for all member countries in collaboration wi th the statistical offices of its member countries. 
 
The data supplied by the ECCB do not separately identify remote gambling services. Under 
classification rules for services, receipts for gambling services are a subset of personal, cultural, and 
recreational services (code 2 287 of Table 2 in the att achment to your letter), but this line has a zero 
entry for all years shown for Antigua and Barbuda. We also have received copies of many of the 
survey report forms now used by the ECCB, as well as of those that the ECCB plans to utilize in the 
future, and we do not see where gambling services are separately identified or covered.  Also, the description of balance of payments data compile d by the ECCB and set out in Part III of the 
Balance of Payments Statistics Yearbook  does not refer to gambling services. 
 
Transactions related to gambling, however, may be captured in the financial account because (as you 
point out in question #3) financial account transacti ons are, to some extent, reported by commercial 
banks, and the transactions of ga mbling site operators would be an undifferentiated component of 
higher level financial account aggregates reported by these institutions.  
2. Transactions related to gambling, including imports of business services and repatriation of 
profits by gambling site operators, s hould be covered in the data in the Yearbook, but here too the data 
would be undifferentiated components of higher level aggregates. We cannot determine how 
comprehensively the data are captured in practice. 
 
3. National compilers strive to report transactions  in their jurisdictions following the concepts 
and guidelines outlined by the IMF. In our opinion, it is likely that receipts and payments, and imports 
and exports of gambling site operators , are captured to some extent in the data that are reported in the 
Yearbook, but the data in the Yearbook do not specifically identify gambling services. Data in the 
Yearbook are classified in broader categories, such as "personal, cultural, and recreational services," 
or direct investment income. 
 
4. Essentially all of the data in the Yearbook for Antigua and Barbuda are provided by the 
ECCB. The IMF does not conduct any independent da ta collection of importers or exporters of WT/DS285/ARB 
Page 86  
 
 gambling services. We therefore believe that the E CCB, and probably also the authorities in Antigua 
and Barbuda, are best placed to provide answers to your detailed questions about remote gambling 
revenue. 
 
If you have any additional questions or need clar ification of the above, please do not hesitate to 
contact me. 
 
Sincerely yours, 
  
 
Robert W. Edwards Director 
Statistics Department 
 
 
  WT/DS285/ARB 
 Page 87 
 
 
 ANNEX E 
 
Annex Tables  
 
Annex Table 1 
 
Antigua's remote gambling revenues (million dollars) 
 
 Global 
revenues Difference  
to year 2001 80%  
revenues Difference  
to year 2001 
2001 1630  1304  
2002 1693 -63 1354 -50 
2003 1185 445 948 356 
2004 1145 485 916 388 
2005 1138 492 910 394 
2006 1086 544 869 435 
Average  381  304 
 
Source : GBGC, October 2007.  
  
Annex Table 2 
 
Revenues per employee, selected companies (dollars) 
 
 Partyg 
aming YouBet  Betfair 888 Sporting
bet Unibet Betcorp Average 
2001  82,895        
2002 266,372 342,105        
2003 356,876 807,463   410,810 360,490 229,886   
2004 825,240 804,938 425,299 258,206 470,563 524,934 155,686   
2005 719,426 837,736 460,808 305,869 560,964 650,895 118,069   
2006 918,453 305,817 295,830 393,885 749,645 737,052 167,777   
Average 
w/o extr. 617,273 530,159 369,800 319,320 547,996 568,343 167,855 445,821
Average 633,847 565,081 361,282 305,869 515,764 587,915 161,732 447,356
 
Notes :  For the average without extreme values the tw o years with the highest and lowest revenues 
have been removed from the calculations.  Amounts in other currencies have been converted to 
dollars using the average exchange rate of the respective year according to the IMF International 
Financial Statistics, November 2007.  
Source : Antigua response to question 21 by the Arbitrator, pages 18-19 and Exhibit AB-17.  
 WT/DS285/ARB 
Page 88  
 
 Annex Table 3 
 
Revenues per employee and number of employees 
 
 Number of 
employees Antigua  
remote gambl. 80% of number  
of employees Difference of 
number of 80% 
empl. to year 2001Average revenues per 
employee times empl. 
difference (dollars) 
2001 1014 811   
2002 328 262 549 244,666,459 
2003 431 345 466 207,930,824 
2004 492 394 418 186,174,769 
2005 628 502 309 137,669,465 
2006 442 354 458 204,007,601 
Average    196,089,823 
  Notes :  Small errors in the numbers of employees ar e due to rounding.  For the present calculations, 
average revenues per employee of US$445,821 have been used.  
Source : Antigua response to question 21 by the Arbitrator, pages 18-19 and Exhibit AB-17.  
  
Annex Table 4 
 
Online revenues from wo rld, by country/group 
 
 C&Sam&Car 
rev. 
 World rev. 
 C&Sam&Car 
share in 
World rev. A&B share 
in World rev.A&B share in 
C&Sam&Car 
rev.  A&B contrib. 
to 
C&Sam&Car 
share in World 
rev. compared 
to 2001 
 (million 
dollars)  (million 
dollars)  (per cent)  (per cent)  (per cent)  (per cent)  
2001 2,397 3,530 68 46 68 100 
2002 2,639 4,380 60 39 64 94 
2003 2,676 5,650 47 21 44 65 
2004 3,095 8,930 35 13 37 54 
2005 3,232 11,890 27 10 35 52 
2006 3,152 15,320 21 7 34 51 
 
Source : GBGC, October 2007.  
Notes:  C&Sam&Car denotes the Central and South Amer ican and Caribbean region, A&B refers to 
Antigua and Barbuda and rev. means revenues. 
  WT/DS285/ARB 
 Page 89 
 
 
 Annex Table 5 
 
Antigua's revenue loss, adjustment for competition 
 
GBGC Revenues per employee 
Revenue 
loss 
 Contrib. 
A&B to 
2001 share Revenue 
loss 
adjusted Revenue 
loss Contrib. 
A&B to 
2001 share Revenue 
loss 
adjusted 
 (million 
dollars) (per 
cent)  (million 
dollars) (million 
dollars) (per 
cent)  (million 
dollars) 
2002 -50 94 -48 245 94 231 
2003 356 65 232 208 65 135 
2004 388 54 211 186 54 101 
2005 394 52 204 138 52 71 
2006 435 51 221 204 51 103 
Average 304  164 196  128 
 
 
Source : GBGC, October 2007 and Antigua response to question 21 by the Arbitrator, pages 18-19 and 
Exhibit AB-17.  
 
 
__________