Info Service on WTO and Trade Issues (Jan13/01)
22 January 2013
Third World Network
Antigua and Barbuda requests sanctions in US gambling dispute
Published in SUNS #7502 dated 17 December 2012
Geneva, 14 Dec (Kanaga Raja) -- Antigua and Barbuda has requested
authorisation from the Dispute Settlement Body (DSB) of the World
Trade Organisation (WTO) to suspend the application of concessions
or other obligations under the TRIPS Agreement with respect to the
United States in an amount not exceeding $21 million annually.
The request, pursuant to Article 22.7 of the Dispute Settlement Understanding
(DSU), is outlined in Antigua and Barbuda's communication to the Chair
of the DSB dated 13 December 2012 (WT/DS285/25). The communication
has been posted on the WTO website.
The authorisation request follows the award of the arbitrators (both
on the amount and the cross-retaliation), and in terms of Article
22.7, the DSB authorisation is automatic, unless the DSB by consensus
The dispute, which concerns measures imposed by the United States
affecting the cross-border supply of gambling and betting services,
has gone through several stages.
The dispute was first raised in March 2003, with the dispute panel
handing down its ruling in November 2004 and later the Appellate Body
issuing its ruling in April 2005, both of whose reports were subsequently
adopted by the DSB. Compliance proceedings followed under Article
21.5 of the DSU, with the compliance panel report being issued in
March 2007, and later adopted by the DSB.
According to trade officials, while the request was submitted too
late for it to be put on the agenda of the DSB meeting for Monday
17 December, Antigua and Barbuda is expected to make a statement on
this issue under the agenda item of "Other Business" at
that DSB meeting.
In its communication to the Chair of the DSB, Antigua and Barbuda
explained that on 21 June 2007, it had requested the DSB (WT/DS285/22)
for authorisation to suspend the application to the United States
of concessions and related obligations of Antigua and Barbuda under
the WTO's General Agreement on Trade in Services (GATS) and the TRIPS
as a result of the failure of the United States to implement the recommendations
and rulings of the DSB in United States-Measures Affecting the Cross-Border
Supply of Gambling and Betting Services (DS285).
[In that request, Antigua and Barbuda had sought retaliation amounting
to an annual value of $3.443 billion.]
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 and Barbuda had not followed the principles
and procedures of Article 22.3 of the DSU in its request.
At its meeting on 24 July 2007, the DSB referred the matter to arbitration
in accordance with Article 22.6 of the DSU, it noted.
The communication further explained that on 21 December 2007, the
Arbitrators determined in document WT/DS285/ARB that Antigua and Barbuda
could request authorisation from the DSB to suspend the obligations
under Sections 1, 2, 4, 5 and 7 of Part II of the TRIPS at a level
not exceeding US$21.0 million annually.
(Section 1 relates to copyright and related rights, Section 2 is on
trademarks, Section 4 is on industrial designs, Section 5 is on patents
and Section 7 is on protection of undisclosed information.)
During the course of the arbitration, Antigua and Barbuda had withdrawn
its request to suspend concessions or obligations under the GATS,
as on further evaluation this was considered to be impractical, a
conclusion with which the Arbitrators agreed.
[In the Award, the Arbitrator had determined that the annual level
of nullification or impairment of benefits accruing to Antigua is
$21 million and that Antigua had 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,
the Arbitrator determined that Antigua may request authorisation from
the DSB, to suspend the obligations under the TRIPS Agreement at a
level not exceeding $21 million annually.]
In its communication, Antigua and Barbuda said that since the release
of the Award, it has been working "in good faith to obtain a
fair negotiated settlement to DS285 with the United States, but all
efforts have proven fruitless."
It noted that Article 22.7 of the DSU provides that "the DSB
shall be informed promptly of the decision of the arbitrator and shall
upon request, grant authorisation to suspend concessions or other
obligations where the request is consistent with the decision of the
arbitrator, unless the DSB decides by consensus to reject the request".
Accordingly, on the basis of and consistent with the conclusions and
determinations of the Arbitrators in the Award and in accordance with
Article 22.7 of the DSU, Antigua and Barbuda said it requests authorisation
from the DSB to suspend concessions or other obligations under the
TRIPS, and in particular Sections 1 (Copyright and Related Rights),
2 (Trademarks), 4 (Industrial Designs), 5 (Patents) and 7 (Protection
of Undisclosed Information) of Part II thereof at a level not exceeding
US$21.0 million annually.
"Until such time as the United States brings its measures into
compliance with the rulings and recommendations of the DSB in DS285,
every year Antigua and Barbuda will notify the DSB of the suspension
of concessions or obligations it intends to adopt and actions it intends
to take with respect thereto prior to bringing those suspensions into
force or taking those actions."
The notice will also specify how Antigua and Barbuda proposes to ensure
that, in applying the suspension of concessions and obligations, they
will not exceed US$21.0 million per annum, the communication concluded.