DEMARCHE ON WTO ARTICLE XXI PROCEDURE

UNCLAS STATE 060296 SIPDIS SENSITIVE SIPDIS E.O. 12958: N/A TAGS: ETRD ECON WTRO SUBJECT: DEMARCHE ON WTO ARTICLE XXI PROCEDURE SENSITIVE BUT UNCLASSIFIED ENTIRE TEXT. PLEASE PROTECT ACCORDINGLY. ¶1. This is an action request (see para 8 and 9). Summary -------------- ¶2. In a dispute originally filed by Antigua and Barbuda (hereafter "Antigua") in 2003, the WTO found that the United States had made a market access commitment covering Internet gambling based outside of the United States. As a result of this finding, the United States will notify the WTO on May 4, 2007, 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 make clear that its GATS market access commitments do not cover gambling and betting services, including Internet gambling. As discussed below, Post should contact appropriate officials of the host government to inform them of this action, encourage them to consider the drawbacks of requesting a compensatory adjustment in this situation, and ask them to discuss with us in advance if they have any intention of requesting such compensation. Background -------------- ¶3. In a dispute originally filed by Antigua in 2003, the WTO found that the United States had made a market access commitment covering Internet gambling based outside of the United States. It further found that various federal criminal laws which outlaw interstate and international gambling are inconsistent with that commitment. A one-year compliance period ended in April 2006. In March 2007, a WTO compliance panel found that U.S. federal gambling laws remain out of compliance with WTO rules. On May 22, 2007, the WTO will adopt the report of the compliance panel. After adoption, Antigua likely will proceed with the process of withdrawing concessions made to the United States, reportedly including concessions involving the protection of U.S. intellectual property rights. ¶4. Antigua, the complaining party in the gambling dispute, is the home of several Internet sites that offer poker and sports betting services. Prior to the initiation of the WTO dispute, the United States Department of Justice successfully prosecuted an Antiguan operator for transmitting bets across state lines in violation of federal criminal laws. In March 2003, Antigua initiated a WTO dispute against the United States, complaining that U.S. prohibitions against Internet gambling violated U.S. GATS commitments. Antigua based its complaint on the following theories: (i) that the U.S. GATS schedule, - and in particular the line for "Other recreational services (except sporting)" - commits to allowing market access to gambling operations in other WTO Members; (ii) that various State and federal laws prohibit cross-border gambling; and (iii) that these U.S. laws are inconsistent with market access and national treatment obligations assumed by the United States in its schedule under the GATS. ¶5. Although the Unites States argued that it had not intended to give up its longstanding restrictions on gambling by way of a commitment for recreational services, 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 the U.S. criminal laws governing gambling on horse racing discriminated against foreign operators. The WTO Appellate Body upheld these findings. As a result, the WTO Dispute Settlement Body recommended that the United States bring its federal gambling laws into conformity with its WTO obligations. ¶6. In the foreseeable future, it appears unlikely that the United States Congress will relax restrictions on cross-border Internet gambling. Indeed, in October 2006, it enacted the Unlawful Internet Gambling Enforcement Act (UIGEA),which reaffirmed the prohibition on cross-border Internet gambling. ¶7. In light of the findings of the compliance panel and the new, stricter UIGEA, and concern about other WTO Members bringing similar complaints, the United States has decided to invoke Article XXI of the GATS, which is the procedure used to modify a WTO Member's schedule of commitments. Specifically, the modification would correct the U.S. GATS schedule in order to reflect our original intent - that is, to exclude gambling from the scope of the U.S. commitment on recreational services. By using this procedure, we will resolve not only the complaint and possible retaliation by Antigua, but also forestalling potential future disputes on this issue. The GATS provides that when a Member modifies a commitment, other Members who allege they will be affected by this action may request a compensatory adjustment (i.e. new services market access) to other areas of the GATS schedule. While any WTO Member may ask for compensation, the U.S. action is an unusual situation involving serious issues of public morality, law enforcement, the protection of minors, as well as a clearly inadvertent drafting error that grants a concession that no WTO Member bargained for. In this situation, the U.S. assumes trading partners will refrain from seeking compensation for a concession the U.S. could not have been thought to have made. Action Request -------------- ¶8. No earlier than 12:00 PM EDT time on May 4, Post should draw from the points below to contact host government trade officials at appropriate levels and inform them of the GATS Article XXI notice. Post should emphasize the uniqueness of U.S. action due to the highly sensitive nature of the domestic interest in protection of minors and public morality, as well as law enforcement concerns raised in the gambling case. Post should also indicate that the United States believes that GATS Article XXI provides the appropriate means to correct the situation, and to underscore its continuing commitment to the WTO dispute settlement process and the GATS. ¶9. Post should note that many WTO member countries 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. Post should also emphasize that the United States would expect that WTO members consider the drawbacks of requesting a compensatory adjustment in this situation and would think twice before pursuing an Article XXI claim of interest involving an area of activity declared illegal under U.S. law and the law of many other WTO member countries. In addition, based on the negotiating history the United States firmly believes a commitment in this area was never bargained for by other WTO Members. The USG would ask host governments to discuss with us in advance if they have any intention of requesting such compensation. Background Points -------------- -- On May 4, 2007, the United States will notify 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 in order to ensure that the GATS market access commitments do not cover gambling and betting services, including Internet gambling; -- The U.S. is taking 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, an area which raises highly sensitive issues of protection of minors and public morality, as well as law enforcement concerns; -- In considering any possible claim for a compensatory adjustment under Article XXI, we hope the host government will bear in mind that no 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; -- Further, in light of the United States' longstanding restrictions on gambling for reasons of law enforcement, public morals, and the protection of minors, no Member should have held the expectation that the United States had offered a market access commitment for gambling and betting services; -- In view of this, the United States, in invoking Article XXI of the GATS, is using an appropriate tool in order to correct an unintentional drafting error in the schedule; -- The U.S. assumes that trading partners will refrain from attempting to gain a windfall by requesting a compensatory adjustment in response to the efforts of the United States to restore the situation which Members believed they had negotiated during the Uruguay Round; -- This is particularly true in light of the efforts of the United States to ensure that its international commitments are consistent with national priorities concerning public morals and the protection of minors, as well as the law enforcement concerns the United States shares with many other WTO Members in this area; -- If, despite these considerations, host government is considering a request for compensation under Article XXI, the USG would ask for advance notice so we can discuss this matter further bilaterally. End background points. RICE