1. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO WTO Trade in Services II Professor dr. juris Ola Mestad Centre for European Law and Scandinavian Institute of Maritime Law International Economic Law Course Spring 2009

2. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO US - Gambling The most important GATS Appellate Body report –Antigua and Barbuda – United States http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds285 _e.htm United States – Measures affecting the cross-border supply of gambling and betting services, 7 April 2005, WT/DS285/AB/R Further development –Article 21.3 (c) Arbitration Report 19 August 2005 –Article 21.5 Panel Report 30 March 2007 –Article 22.6 Arbitration Report 21 December 2007

3. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Issues in the Appellate Body Report The measures The specific commitments of the US Market access restrictions, GATS Article XVI General Exceptions, GATS Article XIV

4. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Some Main Rules of GATS Most-Favoured-Nation (Art. II) –No discrimination between different foreign service providers Market access (Art. XVI) –Right to provide services to or within a country National treatment (Art. XVII) –No discrimination between foreign and national providers Domestic regulation (Art. VI) –All general national measures shall be ”administered in a reasonable, objective and impartial manner Defence: General Exceptions (Art. XIV)

5. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO The Measures A total prohibition as a measure? –Not accepted – para 126 GATS Article XXVIII –(a) “measure” means any measure by a Member, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form; Three selected federal laws as measures –Accepted - para 153

6. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Specific US Committments See US schedule, AB report at p 137-138 and para 162 Scheduling based on 4 modes of delivery of services –From one member territory to another (cross border) –In one member territory to service consumer of another member (consumption abroad) –Supplier of one member with commercial presence in another territory –Presence of service supplying natural person in territory of another member

7. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO What is Gambling? Sporting? Other recreational services Entertainment services?

8. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO The Problem of Market Access Interpretation of Article XVII The specified measures in Article XIV

9. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Article XVI: Market Access 1. With respect to market access through the modes of supply identified in Article I, each Member shall accord services and service suppliers of any other Member treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in its Schedule. 2. In sectors where market-access commitments are undertaken, the measures which a Member shall not maintain or adopt either on the basis of a regional subdivision or on the basis of its entire territory, unless otherwise specified in its Schedule, are defined as: (a) limitations on the number of service suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirements of an economic needs test; … (c) limitations on the total number of service operations or on the total quantity of service output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test;

10. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO The Function of General Exceptions A defence to violations Parallel to GATT Article XX

11. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Article XIV: General Exceptions Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on trade in services, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any Member of measures: (a) necessary to protect public morals or to maintain public order; …

12. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Article XIV: General Exceptions Object, Art. XIV a) Necessity, Art. XIV a) Discrimination, the chapeau of Art. XIV

13. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO US – Gambling Conclusion The US is in violation of GATS Article XVI

14. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO The exception for some public services in GATS Art. I.3 GATS covers all international trade in services ”except services supplied in the exercise of governmental authority”, ref. Art I.3.b. which means: ”any service which is supplied neither on a commercial basis nor in competition with one or more service suppliers” This is a very narrow exception –Probably mainly not important in most cases

15. © DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Preparation for Next Week Check your home country’s GATS commitments on education Read Panagiotis Delimatsis, “Due Process and “Good” Regulation embedded in the GATS – Disciplining Regulatory Behaviour in Services Through Article VI of the GATS”, 10 Journal of International Economic Law (2007) pp. 13-50