UNITED STATES – MEASURES AFFECTING THE CROSS-BORDER SUPPLY OF GAMBLING AND BETTING SERVICES
Document: Notification of an Appeal by the United States under paragraph 4 of Article 16 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU)
Date: 13 January 2005
Document codes: WT/DS285/6
Complainant: Antigua and Barbuda
Respondent: U.S.
Third parties: Canada, Taiwan, EU, Japan, Mexico, China
Dispute stage: Implementation & Compliance
Agreements cited: Art. VI, VIII, XVI, XVII, XI  Services (GATS)

UNITED STATES – MEASURES AFFECTING THE CROSS-BORDER SUPPLY
OF GAMBLING AND BETTING SERVICES

Notification of an Appeal by the United States
under paragraph 4 of Article 16 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU)

 The following notification, dated 7 January 200 5, from the Delegation of the United States, is
being circulated to Members.

Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate Review, the
United States hereby notifies its decision to app eal to the Appellate Body certain issues of law
covered in the Report of the Panel on () ("Panel Report") and certain legal interpretations
developed by the Panel in this dispute.

1. The United States seeks review by the Appellate Body of the Panel’s legal conclusion that it
"should consider" the following laws "in determining whether or not the United States is in violation
of its obligations" under the General Agreement on Trade in Services ("GATS"),
1 including the
conclusion that Antigua and Barbuda ("Antigua") had met its burden of proof that these laws "result
in a prohibition on the cross-border supply of gambling and betting services" 2: (1) the Wire Act (18
U.S.C. § 1084); (2) the Travel Act (18 U.S.C. § 1952); (3) the Illegal Gambling Business statute (18
U.S.C. § 1955); (4) Louisiana : § 14:90.3 of the La. Rev. Stat. Ann.; (5) Massachusetts : § 17A of
chapter 271 of Mass. Ann. Laws; (6) South Dakota : § 22-25A-8 of the S.D. Codified Laws;
(7) Utah: § 76-10-1102(b) of the Utah Code; (8) Colorado : § 18-10-103 of the Colorado Revised
Statutes; (9) Minnesota : §§ 609.75, Subdivisions 2-3 and 609.75 5(1) of Minn. Stat. Ann; (10)
New Jersey: paragraph 2 of N.J. Const. Art. 4, Sec. VII and § 2A:40-1 of the N.J. Code; and (11)
New York: § 9 of Art. I of N.Y. Const. and § 5-401 of the N.Y. Gen. Oblig. L. These conclusions are
in error and are based on erroneous findings on issues of law and relate d legal interpretations
regarding a complaining party’s initial burden of proving an alleged breach of Article XVI of the
GATS, and on the Panel’s failure to carry out its ob ligations under Article 11 of the DSU to make an
objective assessment of the matter before it. These errors are contained in, inter alia,
paragraphs 6.160-6.165, 6.199-6.249, 6.357-6.421, and 7.1-7.2 of the Panel Report.

2. The United States seeks review by the Appellate Body of the Panel’s legal conclusion that the
U.S. schedule to the GATS in cludes specific commitments on gambling and betting services under
subsector 10.D, "other recreational services (except s porting)." This conclusion is in error and is

1Panel Report, para. 6.209.
2Id., para. 6.249.

based on erroneous findings on issues of law and related legal interp retations with respect to the
provisions of the U.S. schedule to the GATS. These errors are contained in, inter alia,
paragraphs 6.49-6.138, 6.356, 6.527, and 7.2-7.4 of the Panel Report.

3. The United States seeks review by the Appellate Body of the Panel’s legal conclusion that the
United States fails to accord services and service suppliers of Antigua treatment no less favorable than
that provided for under the terms, limitations and conditions agreed and specified in the U.S.
schedule, contrary to Article XVI:1 and Article XVI:2 of the GATS. This conclusion is in error and is
based on erroneous findings on issues of law and related legal interpretations with respect to
Article XVI of the GATS. These erroneous findings include, for example, the following:

(a) The Panel’s findings that any limitation that has the effect of limiting the number of
service suppliers in a sector or subsector is a limitation in the form of numerical
quotas within the meaning of Article XVI:2(a) , and that "a measure that is not
expressed in the form of a numerical quota or economic needs test may still fall
within the scope of Article XVI:2(a)"
3;

(b) The Panel’s findings that any limitation that has the effect of limiting the number of
service operations in a sector or subsector is a limitation expressed in the form of
quotas within the meaning of Article XVI:2(c) of the GATS, and that a limitation that
is not "expressed in terms of designated numerical units" may nonetheless fall within
the scope of Article XVI:2(c);

(c) The Panel’s finding that a WTO Member does not respect its GATS market access
obligations under Article XVI:2 if it limits market access to any part of a scheduled
sector or subsector, or if it restricts any means of delivery under mode 1 with respect
to a committed sector; and

(d) The Panel’s findings that the Unite d States maintains such limitations.

These errors are contained in, inter alia, paragraphs 6.262-6.421 and 7.2-7.4 of the Panel Report.

4. The United States seeks review by the Appellate Body of the Panel’s legal conclusion that the
Wire Act, the Travel Act (together with the rele vant state laws) and the Illegal Gambling Business
statute (together with the relevant state laws) are not justified under Articles XIV(a) and XIV(c) of the
GATS and are inconsistent with the requirements of the chapeau of Article XIV of the GATS. These
conclusions are in error and are based on errone ous findings on issues of law and related legal
interpretations with respect to Article XIV of th e GATS, and on the Panel’s failure to ensure that
consultations shall be without prejudice to the rights of the United States in dispute settlement
proceedings pursuant to Article 4.6 of the DSU. These errors are contained in, inter alia,
paragraphs 6.475-6.477, 6.488-6.535, 6.541-6.608, and 7.2 of the Panel Report.

5. The United States seeks review by the Appellate Body, pursuant to Article 11 of the DSU, of
the Panel’s finding that "the United States has declin ed Antigua’s invitation to engage in bilateral
and/or multilateral consulta tions and/or negotiations."
4 The Panel’s disregard for uncontroverted
evidence in the record, such as the fact that the United States engage d in bilateral consultations with
Antigua regarding Antigua’s concerns relating to U.S. gambling laws pursuant to Article 4 of the
DSU, is inconsistent with the Panel’s duty to make an objective assessment of the matter before it.
These errors are contained in, inter alia, paragraphs 6.525-6.533 of the Panel Report.

3Id., para. 6.332.
4Id., para. 6.533.

6. The United States seeks review by the Appellate Body, pursuant to Article 11 of the DSU, of
the Panel’s finding that "the United States has fail ed to demonstrate that the manner in which it
enforced its prohibition on the remote supply of gambling and betting services against TVG, Capital
OTB and Xpressbet.com is consistent with the requ irements of the chapeau" of Article XIV of the
GATS.5 The Panel’s disregard for uncontroverted evid ence in the record, such as statistical evidence
as to the overall treatment of domestic suppliers of remote gambling services as compared to that of
foreign suppliers, is inconsistent with the Panel’s duty to make an objective assessment of the matter
before it. These errors are contained in, inter alia, paragraphs 6.585- 6.589 of the Panel Report.

7. The United States seeks review by the Appellate Body, pursuant to Article 11 of the DSU, of
the Panel’s finding that "the evidence presented to the Panel is inconclusive and that the United States
has not demonstrated that the [Interstate Horseraci ng Act], as amended, do es not permit interstate
pari-mutuel wagering for horse racing over the te lephone or using other modes of electronic
communication, including the Internet."
6 The Panel’s disregard for uncontroverted evidence in the
record, such as the consistent position of the U.S. Government that the IHA does not provide legal
authority or protection for remote supply of gambling services and settled U.S. law regarding
statutory construction, is inconsistent with the Panel’s duty to make an objective assessment of the
matter before it. These errors are contained in, inter alia, paragraphs 6.595-6.600 of the Panel Report.

8. The United States seeks review by the Appella te Body of the Panel’s legal conclusion that
"practice," which the Panel defines as "a repeated pattern of similar responses to a set of
circumstances," can "be considered as an autonomous measure that can be challenged in and of
itself."
7 This conclusion is in error and is based on erroneous findings on issues of law and related
legal interpretations with respect to what constitutes a "measure" under Article 6.2 of the DSU. These
errors are contained in, inter alia, paragraphs 6.196-6.198 of the Panel Report.

5Id., para. 6.589.
6Id., para. 6.600.
7Panel Report, paras. 6.196-6.197.