DEMARCHE ON GAMBLING - WTO ARTICLE XXI PROCEDURE

UNCLAS SECTION 01 OF 04 STATE 165472 SIPDIS SIPDIS SENSITIVE E.O. 12958: N/A TAGS: ECON ETRD WTRO SUBJECT: DEMARCHE ON GAMBLING - WTO ARTICLE XXI PROCEDURE REF: STATE 60296 SENSITIVE BUT UNCLASSIFIED ENTIRE TEXT. PLEASE PROTECT ACCORDINGLY. ¶1. This is an urgent action request. See paragraphs 14 and ¶15. SUMMARY -------------- ¶2. In May 2007, the United States began a process to clarify that its WTO obligations do not extend to gambling and betting services, in response to a WTO dispute settlement finding that the U.S. inadvertently included this subsector in its commitments. The EU has identified itself as a WTO Member whose interests would be affected by this clarification; accordingly, the U.S. has entered into negotiations for a "compensatory adjustment" to include additional services activities in the U.S. WTO services commitments. Although the U.S. has made a compensation offer which exceeds the value of the U.S. market for gambling and betting services, the European Commission, citing pressure from EU Member States, has not yet accepted the offer. As discussed below, Posts are asked to contact appropriate host government trade officials to inform them of this action and to encourage them to contact the Commission to urge the EC to accept the U.S. offer and avoid arbitration. The deadline for negotiations is December 14, after which the EU will have 45 days to consider whether to seek arbitration. Posts are requested to deliver this demarche no later than Wednesday, December 12. Please slug responses to EEB/TPP/MTA Carol Henninger and USTR Thomas Fine. THE GAMBLING PROCEEDING -------------- ¶3. Pursuant to a WTO dispute settlement procedure initiated by Antigua and Barbuda in 2003, the WTO Dispute Settlement Body (DSB) has adopted an Appellate Body report that concludes that the commitment scheduled by the United States during the Uruguay Round under the General Agreement on Trade in Services (GATS) to provide market access to foreign service suppliers of "other recreational services" must be construed to include gambling services, such as Internet gambling services provided by companies located in Antigua. ¶4. Although the United States had argued during the case proceeding that it had not intended to give up its longstanding federal prohibition and criminal penalties with regard to interstate (i.e. cross-border) gambling, the Panel found that the United States, albeit unintentionally, had committed to allowing market access for Internet gambling. The Panel further found that the United States had failed to rebut Antigua's argument that U.S. criminal laws governing gambling on horse racing discriminated against foreign operators. The WTO Appellate Body upheld these findings. ¶5. Since May 2007, the Gambling dispute has been progressing on two tracks. First, because the WTO has ruled that the United States has not brought its anti-gambling laws into compliance with the WTO panel ruling, Antigua requested permission to impose 3.4 billion USD, per annum, in retaliation in the form of suspended TRIPs and telecommunications obligations. This request has been referred to arbitration under WTO dispute settlement procedures. A decision of the arbitrator is currently scheduled to be issued on December 14. ¶6. Second, in light of the WTO dispute settlement findings and concern about other WTO Members bringing similar challenges to U.S. federal and state gambling laws, in May 2007 the United States invoked Article XXI of the GATS, which establishes a process for WTO Members to modify or withdraw their schedule of services market access commitments. (See REFTEL) The modification would correct the U.S. GATS schedule in order to reflect our original intent to exclude gambling from U.S. commitment on recreational services. By using this procedure, the U.S. is attempting to resolve not only the complaint and possible retaliation by Antigua, but also to forestall potential future disputes on this issue. ¶7. GATS Article XXI provides that when other WTO Members allege to be affected by a proposed modification, the Member invoking Article XXI and those other Members should negotiate a "compensatory adjustment" (i.e., new services STATE 00165472 002 OF 004 market access) to other areas of the GATS schedule. Seven WTO Members notified the United States that they consider that their interests would be affected by the proposed change: Antigua and Barbuda, Canada, Costa Rica, the EU, India, Japan and Macau (NOTE: Australia initially filed such a notice, but subsequently withdrew. END NOTE). The period of time to negotiate the compensatory adjustment has been extended twice by mutual agreement, and will expire on December 14. ¶8. During the summer 2007, USTR met with the claimants on several occasions. USTR made clear during these consultations that the United States did not believe that its action to clarify its GATS schedule with regard to gambling and betting services should warrant compensation since it never intended to make such a commitment and no WTO member had bargained for it during the Uruguay Round. The U.S. also noted that the subsector affected by this modification (i.e., gambling) involves issues of public morality, law enforcement and protection of minors. However, the United States indicated that it shared the systemic concerns expressed by the EU and a number of other claimants about setting any precedent that might encourage misuse of Article XXI by WTO Members. The United States therefore agreed that in order to address the overall systemic concerns, it would make an offer for compensatory adjustment. ¶9. In September, the United States offered to provide new market access commitments in the sectors of storage and warehousing services, and technical testing and analysis services. Although Canada and Japan accepted this compensatory adjustment offer, other claimants, including the EU said that in their view it was not commensurate with their claims. USTR continued to meet with the claimants to discuss the matter. In December, USTR increased its offer by proposing to bind research and development services, a sector which alone is significantly larger than the entire U.S. gambling industry, and is an EU priority sector in the ongoing DDA GATS negotiations. ¶10. Although the EU itself has not taken a commitment for gambling under the GATS, and gambling is restricted to various degrees in most EU Member States, the European Commission has taken a very aggressive stance in these negotiations. That stance perhaps reflects lobbying by the European Internet gambling industry, largely based in the UK, but with a significant presence in Malta and Gibraltar as well. That industry has been pushing very visibly for a change to U.S. laws prohibiting Internet gambling. This issue continues to be very divisive in the U.S. Congress. Consequently, no changes in federal laws affecting Internet gambling are anticipated in this Congress. ¶11. The European Commission position in this case may also reflect concerns about national restrictions within the EU on Internet gambling which may discriminate against providers of gambling services from other EU Member States. Since 2006, the Commission has inquired about or formally requested a change to gambling legislation in: Austria, Denmark, Finland, France, Germany, Greece, Hungary, Italy, the Netherlands, and Sweden. ¶12. In a recent meeting with European Commission Director General for Trade David O'Sullivan, Deputy U.S. Trade Representative Veroneau explained that the sectors we are offering to bind represent a very generous economic offer which would not be further increased. Mr. O'Sullivan was also reminded that the U.S. obligation with respect to gambling results from a drafting error, and thus these negotiations are a windfall to the EU. Nevertheless, Mr. O'Sullivan suggested the offer was insufficient, citing, as he has in the past, views of EU Member States. ¶13. If the United States does not reach an agreement with the EU by December 14, the Commission will have 45 days in which it may request arbitration. In order to do so, it will need to seek authorization from the EU Member States through the 133 Committee. Action Request -------------- ¶14. No later than Wednesday, December 12, Posts are requested to convey the points in paragraph 16 to appropriate host government trade officials responsible for providing 133 Committee instructions: 1) to inform them that the United States has made a very substantial and generous economic offer in services sectors of special interest to the EU, 2) to remind them that this case arose because of a drafting STATE 00165472 003 OF 004 error, not because of withdrawal of a negotiated commitment, and 3) to explain that the United States would view a decision to seek arbitration in this matter as gratuitous and inappropriate. Member States should be urged to contact European Commission trade officials as soon as possible to encourage the EC to accept the U.S. offer and avoid arbitration. ¶15. Post should further note that many WTO member countries, including some EU Member States, prohibit gambling and betting activities whether through the Internet or other means. We believe these countries should appreciate the importance of maintaining WTO members' flexibility to regulate in this sensitive area of public morality. The decision of whether to open gambling markets should be done through careful policymaking, rather than through litigation. ¶16. Background Points -- On May 4, 2007, the United States notified the WTO that it is invoking Article XXI of the General Agreement on Trade in Services (GATS) to correct mistakes in the drafting of the U.S. GATS schedule to clarify that the GATS market access commitments do not cover gambling and betting services, including Internet gambling; -- The U.S. took this unusual action due to the fact that in the course of dispute settlement proceedings, the U.S. schedule was deemed to include a commitment on gambling, even though this had not been the intent of the United States. In fact, no WTO Member had requested such a commitment; cross-border gambling had been and continues to be prohibited under long-standing U.S. criminal laws; and the U.S. schedule never even mentions the terms "gambling" or "betting." -- Gambling is an area which raises highly sensitive issues of law enforcement, public morality, and the protection of minors and other vulnerable groups. Abolishing longstanding U.S. anti-gambling laws was not an option, and the United States accordingly has chosen the GATS Article XXI procedure as the means to clarify its schedule and thus resolve the dispute. -- The U.S. shares the systemic concerns WTO Members have expressed about the potential for misuse of Article XXI, and have offered to make a substantial compensatory adjustment by making new services commitments in other sectors. The WTO system cannot function if there is no means to correct errors. -- The United States made an initial offer in September, which was rejected by the European Commission. After further discussions, in December we offered new commitments in storage and warehousing services, technical testing and analysis services, and research and development services. -- These sectors represent far greater economic potential (over 200 billion USD) than the most exaggerated estimates of the entire U.S. gambling market. Further, the offered sectors have all been specifically requested by the EU in the Doha WTO negotiations, and they are sectors in which European industry is well-positioned. -- Nevertheless, the European Commission has stated that the U.S. offer is insufficient, expressing concern that EU Member States would not accept it. We have made a very generous and substantial offer, which we believe more than compensates for the clarification of the U.S. GATS schedule. These negotiations are scheduled to conclude on December 14, after which any claimant that has not accepted our offer will have 45 days to request arbitration. -- The United States would very much prefer to avoid arbitration in this matter. We understand that there is an industry in the EU that is impatient to offer Internet gambling in the United States. However, we urge EU governments to bear in mind that no WTO Member asked the United States to make a commitment for gambling and betting services during the Uruguay Round, and as the dispute settlement panel recognized, the United States never intended to offer a market access commitment for gambling. Furthermore, as the WTO Appellate Body recognized, gambling raises serious social issues of law enforcement, public morals, and the protection of minors and other vulnerable groups, and its regulation is permissible under WTO rules. Arbitration will not change that, and will not benefit the European gambling industry. -- We note that a number of EU Member States confront similar concerns and maintain restrictions on Internet STATE 00165472 004 OF 004 gambling. It is important to allow flexibility to regulate in this sensitive area of social policy. The decision of whether to open gambling markets should be done through careful policymaking, rather than through litigation. -- In light of the size of our offer, the fact that it addresses specific EU requests, and the fact that the entire issue arises from a drafting error, seeking arbitration will be perceived in a very negative light as a gratuitous attempt to gain a windfall from this difficult issue. -- Should the EU reject our offer, we are confident that an arbitrator will find that our offer meets the WTO requirement to rebalance our services obligations. Our goal, however, is to avoid unnecessary WTO arbitration. At a minimum, we are urging the EU to refrain from joining any arbitration which Antigua and Barbuda may request. -- We urge your government to convey to the European Commission support for accepting the U.S. compensation proposal before December 14. If asked about proposals in Congress to change U.S. law with respect to gambling: -- There are some in Congress who believe U.S. gambling laws should be relaxed, and others who oppose such changes. This difference of views reflects the disagreement in American society about this sensitive issue. We cannot predict where this debate will come out. We do note, however, that just last year Congress strengthened U.S. anti-gambling laws. End background points. RICE