Closing Statement by Sir Ronald Michael
Chief Foreign Affairs Representative of Antigua and Barbuda
First Meeting of the Panel at the World Trade Organisation (WTO)
In Dispute: US-Gambling WT/DS 285
11th December 2003
Mr Chairman, Members of the Panel
First, may I say on behalf of the Antigua and Barbuda delegation
that we are grateful to the entire Panel for the interaction which
we enjoyed with you yesterday. We found that interaction enormously
The questions asked by the Panel and the answers they evoked sharpened
both the issues and the focus of this case.
The entire process underlined the crucial importance of an independent
and thoughtful Panel in the settlement of disputes between members
of the World Trade Organisation.
Mr Chairman, Antigua and Barbuda will confine our brief closing
remarks to three main issues.
The first concerns the status of the scheduling guidelines and
W/120 under international law. We hold to the view that these are
part of the context of the GATS and schedules under the GATS within
the meaning of Article 31, paragraph 2 of the Vienna Convention.
These two instruments are particularly important elements of that
context because they set a standard of communication that enables
Members to understand each other’s schedules.
Our only further comment on this matter would simply be to repeat
the observation we made in our opening statement yesterday that,
during the negotiations in the Uruguay Round, the United States
itself explicitly stated that “except where specifically
noted, the scope of the sectoral commitments of the United States
corresponds to the sectoral coverage in [W/120]”. And, of
course, W/120 incorporates the CPC.
The second matter on which we will comment concerns whether or
not there is a total prohibition on the cross-border supply of
gambling and betting services to the United States.
From the outset of this entire dispute, we have affirmed this
to be the case.
If there was any doubt about this issue, it was definitively settled
yesterday by the United States itself. The US explained that it
allows only the cross-border supply of services that are ancillary
to gambling and betting services. The US explanation left us in
no doubt that the services, which are the subject of this dispute,
are totally prohibited under US law.
Antigua and Barbuda’s claim is not about ancillary services;
it is about the gambling and betting services themselves – and
the United States has again confirmed that these are totally prohibited.
Given the extent of the US commitments, this total prohibition
is a violation of Article Sixteen. We strongly believe that this,
by itself, is sufficient grounds to dispose of the case.
The third issue on which we offer a comment concerns Article Seventeen.
Here a systemic question arises, and it is this: Is it possible
for an Article Seventeen issue to arise even when there is no market
access at all?
It could be argued that Article Seventeen deals only with discriminatory
regulatory treatment after the market has been entered. In the
context of the total prohibition of market access by the US which
is a violation of Article Sixteen, it could appear, therefore,
that arguments under Article Seventeen are superfluous to this
However, Antigua is deeply conscious that the text of Article
Seventeen allows the conclusion that the Article is violated because
a total prohibition of cross-border supply has an adverse effect
on conditions of competition. In this connection, and in the absence
of a definitive authority on the relationship between Articles
Sixteen and Seventeen, Antigua has advanced arguments encompassing
Mr Chairman, we see no need to revisit our arguments on Articles
Six, one; Six, three; and Eleven, one.
It only remains for us to again thank you, Mr Chairman, and the
Panel for the careful and constructive manner in which these proceedings
have been carried out.