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World Trade Organization (WTO) Appellate Body Report: United States—measures Affecting the Cross-Border Supply of Gambling and Betting Services*
Published online by Cambridge University Press: 27 February 2017
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- Judicial and Similar Proceedings
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- Copyright © American Society of International Law 2005
Footnotes
*
This document was reproduced and reformatted from the text appearing at the WTO website http://www.wto.org/english/tratop_e/dispu_e/285abr_e.pdf (visited July 19, 2005).
References
1 Panel Report, para. 6.209.
2 Id, para. 6.249
3 Id.,para. 6.332.
4 Id.,para. 6.533.
5 Id.,para. 6.589.
6 Id., para. 6.600.
7 Panel Report, paras. 6.196-6.197.
8 See Final Report, paras. 6.171, 6.169, 6.170 and 6.177. See also id., paras. 6.156 and 6.157.
9 See id., paras. 6.171, 6.175-6.185. See also id., para. 197.
10 See id.paras. 6.298, 6.299 and 6.318.
11 See id.paras. 6.382, 6.383, 6.397, 6.398, 6.401, 6.402, 6.405 and 6.406.
l2 See id.,paras. 6.444, 6.583 and 6.584.1
13 See id., paras. 6.467-6.469, 6.474. 6.479-6.521, 6.533 and 6.535.
14 The only other evidence considered by the Panel in this discussion is an out-of-context reference to some language in a report prepared for Antigua by certain experts (Final Report, para. 6.513) and extracts from a statement made by a credit card company executive before the United States Congress (id., para. 6.518).
15 Nor was any evidence submitted by the United States pertaining to any other jurisdiction.
16 Note that this evidence was not presented in the context of GATS Article XIV due to the failure of the United States to raise its GATS Article XIV defence until after all written submissions had been made, and was extrapolated by the Panel from Antigua's discussion of GATS Article XVII. See Final Report, para. 6.584. See also paragraph 5 above.
17 18U.S.C. §§ 1961-1968.
18 See Final Report, paras. 6.548-6.551.
19 See id., paras. 6.550, 6.553-6.557, 6.560, 6.562 and 6.564.
20 Id.,para. 6.547
2l Id.,para6.520
22 Id.paras. 6.567, 6.585-6.607.
1 WT/DS285/R, 10 November 2004.
2 Panel Report, para. 1.1.
3 Ibid., paras. 6.154, 6.156-6.157.
4 Panel Report, para. 2.1 (a).
5 Ibid., para. 2.1(b).
6 Panel’ s Decision on the Request for Preliminary Rulings, para.49, attached as Annex B to Panel Report, p. B-13.
7 Panel’ s Decision on the Request for Preliminary Rulings, para. 51, attached as Annex B to Panel Report, p. B-14.
8 Panel's Decision on the Request for Preliminary Rulings, para. 50, attached as Annex B to Panel Report, p. B-13. ( footnote omitted)
9 Panel's Decision on the Request for Preliminary Rulings, para. 40, attached as Annex B to Panel Report, p. B-9.
10 United States’ first written submission to the Panel, paras. 40-58; United States’ statement at the first substantive panel meeting, paras. 11-21; United States’ second written submission to the Panel, paras. 6-9;United States’ statement at the second substantive panel meeting, paras. 2-3 and 8-18.
11 Panel Report, para. 6.148.
12 Ibid., para. 6.185.
13 Panel Report, para. 6.219.
14 See ibid., para. 6.249.
15 Panel Report, paras. 7.2(a)-(d).
16 Panel Report, para. 6.383.
17 Ibid., paras. 6.397-6.398.
18 Ibid., para. 6.402.
19 Ibid., para. 6.406.
20 Ibid., para. 7.2(e).
21 Ibid., para. 7.5.
22 Notification of an Appeal by the United States, WT/DS285/ 6, 13 January 2005 (attached as Annex I to this Report).
23 WT/AB/WP/5, 4 January 2005.
24 Notification of Other Appeal by Antigua and Barbuda, WT/ DS285/7, 16 February 2005; WT/DS285/7/Corr.1, 17 February 2005 (attached as Annexes II and II(a), respectively, to this Report).
25 Pursuant to Rule 21(1) of the Working Procedures.
26 Pursuant to Rule 23(3) of the Working Procedures.
27 Pursuant to Rule 22 and Rule 23(4) of the Working Procedures.
28 Pursuant to Rule 24(1) of the Working Procedures.
29 Pursuant to Rule 24(2) of the Working Procedures.
30 United States’ appellant's submission, para. 43.
31 Ibid., para. 8 (quoting Antigua's first written submission to the Panel, para. 136). (emphasis omitted)
32 United States’ appellant's submission, paras. 12-14 (referring to Appellate Body Report, Japan - Agricultural Products II, paras. 125-131; and Appellate Body Report, Canada – Wheat Exports and Grain Imports, para. 191).
33 Ibid., paras. 31-35 (citing Appellate Body Report, Canada-Autos, para. 184; and Appellate Body Report, Thailand – H-Beams, para. 136).
34 Ibid., para. 36 (quoting Panel Report, para. 6.164).
35 Ibid., para. 38.
36 Ibid., para. 39.
37 Ibid., para. 42.
38 Ibid., para. 39.
39 United States’ appellant's submission, heading II.A.10, p. 23.
40 Ibid., para. 3. (footnote omitted)
41 Done at Vienna, 23 May 1969, 1155 UNTS 331; 8 International Legal Materials 679.
42 United States’ appellant's submission, para. 51.
43 Services Sectoral Classification List: Note by the Secretariat, MTN.GNS/W/120, 10 July 1991.
44 Scheduling of Initial Commitments in Trade in Services: Explanatory Note, MTN.GNS/W/164, 3 September 1993.
45 United States’ appellant's submission, para. 65.
46 Provisional Central Product Classification, Statistical Papers, Series M No.77, United Nations (1991).
47 United States’ appellant's submission, para. 75 (quoting Panel Report, paras. 6.103 -6.106).
48 United States’ appellant's submission, para. 3. (footnote omitted)
49 Ibid., para. 97.
50 Ibid., para. 109 (quoting Panel Report, para. 6.332).
51 United States’ appellant's submission, para. 129.
52 United States’ appellant's submission, paras. 3 and 101. (footnote omitted)
53 Ibid., para. 136.
54 Ibid., para. 138.
55 Ibid., paras. 147-152.
56 Ibid., para. 152.
57 United States’ appellant's submission, para. 183.
58 Ibid., para. 188.
59 Ibid., para. 189.
60 Ibid., para. 184.
61 Ibid., para. 185.
62 Ibid., para. 194.
63 United States’ appellant's submission, para. 205 (quoting Panel Report, para. 6.197).
64 Ibid., paras. 209-211 (citing Appellate Body Report, US-Corrosion-Resistant Steel Sunset Review, para. 84; Appellate Body Report, US-Countervailing Measures on Certain EC Products, paras. 12-16; and Appellate Body Report, US-Carbon Steel, para. 157).
65 Antigua's appellee's submission, para. 44 (quoting Article 31 of the Vienna Convention).
66 Ibid., para. 50.
67 Antigua's appellee's submission, para. 52.
68 Ibid., para. 61.
69 Antigua's appellee's submission, para. 64.
70 Ibid. Antigua submits a summary of lis ted measures of several Schedules in Annex B of its appellee's submission.
71 Ibid., para. 76.
72 Antigua's appellee's submission, para. 89 (citing United States’ appellant's submission, paras. 152-153 and 157, and footnote 227 to para. 153).
73 Ibid., para. 106.
74 Ibid., para. 108 (quoting Panel Report, para. 6.197).
75 Ibid., para. 109.
76 Antigua's opening statement at the oral hearing.
77 Antigua's other appellant's submission, para. 24 (referring to Panel Report, para. 6.176).
78 Ibid., para. 45.
79 Antigua's other appellant's submission, para. 57.
80 Antigua's other appellant's submission, para. 72.
81 Ibid., para. 76.
82 Antigua's other appellant's submission, para. 81.
83 Ibid., para. 96.
84 Antigua's other appellant's submission, para. 110.
85 Ibid., para. 113.
86 Ibid., para. 127.
87 Antigua's other appellant's submission, para. 133.
88 Ibid., paras. 136-137.
89 Ibid., para. 143.
90 Ibid..
91 Ibid., para. 144.
92 United States’ appellee's submission, para. 16 (citing Panel Report, para. 6.176).
93 Ibid., para. 17.
94 Ibid., paras. 27-28.
95 United States’ appellee's submission, para. 78.
96 Ibid., para. 37 (citing Appellate Body Report, EC – Bananas III, para. 145; and Appellate Body Report, Chile - Price Band System, paras. 154-162).
97 United States’ appellee's submission, para. 48 (referring to United States’ appellant's submission, para. 187, and United States’ second submission to the Panel, paras. 117 -122).
98 Ibid., para. 55.
99 This last finding is challenged by the United States in its appellant's submission. See supra, paras . 29-34.
100 United States’ appellee's submission, para. 71.
101 Ibid., para. 76.
102 Ibid., para. 80.
103 European Communities’ third participant's submission, para. 49.
104 Ibid., paras. 14 and 91.
105 Japan's third participant's submission, para. 8 (quoting Panel Report, para. 6.496).
106 Ibid., para. 12.
107 Japan's third participant's submission, para. 14.
108 Third participant's submission of the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu , para. 6.
109 Ibid., para. 9. (original emphasis)
110 Third participant's submission of the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, para. 13.
111 The Panel refers throughout the Panel Report to the‘total prohibition’ on the cross-border supply of gambling and bettingservices'as/the“total Probhition”.(See,for example,Panel Report, paras. 6.139 and 6.154) In this Report we use the term ‘total prohibition’in the same manner.
112 Panel Report, para. 6.175.
113 Ibid., para. 6.197.
114 Request for Establishment of a Panel by Antigua and Barbuda, WT/DS285/2, 13 June 2003, p. 1.
115 Antigua's first written submission to the Panel, para. 136 (citing Minutes of the DSB Meeting held on 24 June 2003, WT/DSB/M/151, p. 11).
116 Ibid., para. 136. (original emphasis)
117 Panel's decision on the United States’ request for preliminary rulings, para. 17, Panel Report, p. B-4. The Panel did not grant the United States’ request to invite Antigua to file another submission detailing with greater specificity the measures be ing challenged. The Panel also made no ruling relating to the “total prohibition” as a measure per se.
118 Antigua's response to Question 10 posed by the Panel, Panel Report, p. C-34; Antigua's second written submission to the Panel, para. 8.
119 Antigua's second written submission to the Panel, paras. 9- 18.
120 Panel Report, para. 6.175.
121 Ibid., 6.176 (citing Appellate Body Report, US - Corrosion- Resistant Steel Sunset Review, paras. 81-82 and 88).
122 Ibid., paras. 6.177-6.180.
123 Ibid., para. 6.182 (quoting Antigua's response to Question 32 posed by the Panel, Panel Report, p. C-58).
124 Antigua's other appellant's submission, para. 48.
125 Antigua's other appellant's submission, para. 51.
126 Panel Report, para. 6.175.
127 Article 3.3 of the DSU. (emphasis added)
128 Appellate Body Report, US-Corrosion-Resistant Steel Sunset Review, para. 81.
129 Article 4.2 of the DSU.
130 Article 1:1 of the GATS.
131 See page 1 of Antigua's Request for the Establishment of a Panel, supra, footnote 114; Antigua's response to Question 10 pSee page 1 of Antigua's Request for the Establishment of a Panel, supra, footnote 114; Antigua's response to Question 10 posed by the Panel, Panel Report, p. C-34; Antigua's first written submission to the Panel, paras. 140-143.
132 Antigua's other appellant's submission, paras. 5, 43, and 45; Antigua's opening statement at the oral hearing.
133 Panel Report, para. 6.171.
134 Panel Report, para. 6.197 (citing Appellate Body Report, US - Corrosion-Resistant Steel Sunset Review, para. 97; Appellate Body Report, US - Carbon Steel, para. 157; and Appellate Body Report, US - Countervailing Measures on Certain EC Products, para. 162).
135 Ibid., para. 6.198.
136 United States’ appellant's submission, para. 205.
137 Antigua's response to questioning at the oral hearing.
138 See also Appellate Body Report, US - Wool Shirts and Blouses, p. 17, DSR 1997:1, 323, at 338.
139 Indeed, this was said explicit ly in paragraph 220 of the Appellate Body Report in US - Oil Country Tubular Goods Sunset Reviews.
140 See pages 3 to 7 of Antigua's Request for Establishment ofa Panel, supra, footnote 114.
141 Panel Report, para. 6.209.
142 Ibid., para. 6.214.
143 Ibid., para. 6.216.
144 Ibid., para. 6.217.
145 Ibid., para. 6.223.
146 Ibid., paras. 6.226, 6.229, 6.232, 6.235, 6.239, 6.242, 6.245, and 6.248.
147 Appellate Body Report, Canada - Dairy (Article 21.5 – New Zealand and US II), para. 66.
148 Appellate Body Report, US - Carbon Steel, para. 157 (citing Appellate Body Report, US - Wool Shirts and Blouses, p. 14, DSR 1997:1, 323, at 335).
149 Appellate Body Report, EC - Hormones, para. 98; Appellate Body Report, US - Wool Shirts and Blouses, p. 14, DSR 1997:1, 323, at 335.
150 Appellate Body Report, Japan - Agricultural Products II, para. 129.
151 Appellate Body Report, US - Wool Shirts and Blouses, p. 16, DSR 1997:1, 323, at 336. (emphasis added) As not every claim of WTO-inconsistency will consist of the same elements, ‘ ‘the nature and scope of evidence required to establish a prima facie case ‘will necessarily vary from measure to measure, provision to provision, and case to case’ ”. (Appellate Body Report, Japan -Apples, para. 159 (quoting Appellate Body Report, US - Wool Shirts and Blouses, p. 14, DSR 1997:1, 323, at 335))
152 In Canada - Wheat Exports and Grain Imports, para. 191, the Appellate Body made a similar observation in the context of an appeal under Article 11 of the DSU:… it is incumbent upon a party to identify in its submissions the relevance of the provisions of legislation—the evidence—on which it relies to support its arguments. It is not sufficient merely to file an entire piece of legislation and expect a panel to discover, on its own, what relevance the various provisions may or may not have for a party's legal position.
153 Appellate Body Report, US - Oil Country Tubular Goods Sunset Reviews, para. 162
154 Panel Report, para. 6.171.
155 Supra, paras. 120-126.
156 Antigua's first written submission to the Panel, para. 181.
157 Ibid., paras. 160-163.
158 Supra, para. 143.
159 Antigua's second written submission to the Panel, para. 37. The footnotes omitted from this excerpt contain no reference to specific laws of the United States.
160 Antigua's statement at the first substantive panel meeting, para. 21, 10 December 2003; Antigua's written submission in response to the United States’ request for preliminary rulings, footnote 18 to para. 18, 22 October 2003. See also Antigua's response to Question 12 posed by the Panel, Panel Report, p. C-36 (discussing prosecutions under the Wire Act and the Travel Act); and Exhibit AB-82 submitted by Antigua to the Panel (containing texts of the Wire Act, the Travel Act, and the IGBA).
161 United States General Accounting Office, Internet Gambling: An Overview of the Issues, p. 11 (December 2002), Exhibit AB-17 submitted by Antigua to the Panel (describing the WireAct, the Travel Act, and the IGBA).
162 Letter from John G. Malcolm to National Association of Broadcasters, 11 June 2003, Exhibit AB-73 submitted by Antigua to the Panel.
163 Supra, para. 146.
164 United States’ appellant's submission, para. 9.
165 Antigua's statement at the first substantive panel meeting, para. 21, 10 December 2003. In its opening statement at the first substantive panel meeting, Antigua discussed “three federal statutes”, which it identified as follows:The “Wire Act’ (18 U.S.C § 1084), which prohibits gambling businesses from knowingly receiving or sending certain types of bets or information that assist in placing bets over interstate and international wires;. The ‘Travel Act’ (18 U:S:C § 1952), which imposes criminal penalties for those who utilize interstate or foreign commerce with the intent to distribute the proceeds of any unlawful activity, including gambling considered unlawful in the United States; The ‘Illegal’ Gambling Business Act’ (18 U.S.C § 1955), which makes it a federal crime to operate a gambling business that violates the law of the state where the gambling takes place (provided that certain other criteria are fulfilled such as the involvement of at least five people and an operation during more than 30 days). Each of these three laws separately prohibits the cross-border supply of gambling and betting services from Antigua.
166 Question 32 posed by the Panel to Antigua, Panel Report, p. C-58, where the Panel noted: “In its first oral statement (para. 21), in arguing that a prohibition on the cross-border supply of gambling and betting services exists, Antigua points to three federal laws, namely the Wire Act (18 USC § 1084), the Travel Act (18 USC § 1952) and the Illegal Gambling Business Act (18 USC § 1955).“
167 Two of the state measures considered by the Panel—Section 9 of Article 1 of the New York Constitution and Section 18- 10-103 of the Colorado Revised Statutes—are mentioned by Antigua in its first written submission. (Antigua's first written submission, para. 149) However, they are mentioned solely for the purpose of supporting Antigua's assertion that the reason certain measures were identified in its panel request but not in its request for consultations was a typographical error. No description is given of the laws or how they might be inconsistent with Article XVI.
168 Supra, para. 146.
169 Antigua's second written submission to the Panel, para. 37 and footnotes 46-47 and 49 thereto (citing paras. 22-24 and 28-29 of the same submission).
170 See, for example, ibid., paras. 27-29 (discussing laws of, inter alia, Illinois, Iowa, and Nevada).
171 See, for example, ibid., para. 27.
172 See, for example, ibid., paras. 22 ("All states have adopted the same basic legal approach") and 24 ("under the laws or the practice of every state")
173 ibid., footnotes 22 and 23 to para. 22 (citing United States General Accounting Office, Internet Gambling: An Overview of the Issues (December 2002), Exhibit AB-17 submitted by Antigua to the Panel; and Antonia Z. Cowan, “The Global Gaming Village: Interstate and Transnational Gambling”, Gambling Law Review, Vol. 7, pp. 255-257, Exhibit AB-119 submitted by Antigua to the Panel).
174 Panel Report, paras. 6.228 and 6.244.
175 Antigua's second written submission to the Panel, footnotes 46, 47, and 49 to para. 37 (citing Antigua's second written submission, paras. 22-24 and 27-29); and Antigua's second written submission, footnotes 22 and 23 to para. 22 (citing, inter alia, Enclosure 1 to the Interim Report of the United States General Accounting Office on Internet Gambling, enti tled “Gambling Law in Five States and Their Effect on Internet Gambling” (23 September 2002), Exhibit AB-84 sub mitted by Antigua to the Panel).
176 United States appellant's submission, para. 39.
177 Supra, para. 154.
178 Panel Report, paras. 6.421, 6.535, 6.565, 7.2(b)(i), and 7.2(d).
179 Ibid., paras. 6.367 and 6.375.
180 See also Panel Report, para. 6.134.
181 United States’ appellant's submission, para. 65.
182 Ibid., para. 75 (quoting Panel Report, paras. 6.104 and 6.106).
183 Appellate Body Report, EC-Computer Equipment, para. 109.
184 Ibid., para. 84.
185 Panel Report, para. 6.45.
186 Antigua's and the United States’ responses to questioning at the oral hearing.
187 Panel Report, para. 6.41.
188 The United States of America - Schedule of Specific Commitments, GATS/SC/90, 15 April 1994 (the “United States' Schedule“). The “National Treatment” and “Additional Commitments” columns of the United States’ Schedule are omitted from this excerpt. The relevant part of the United States’ Gats Schedule is attached, in its entirety, as Annex III to this Report.
189 Panel Report, para. 6.47.
190 Ibid., para. 6.61. (original emphasis)
191 We note, in this regard, the words of the panel in US – Section 301 Trade Act: For pragmatic reasons the normal usage … is to start the interpretation from the ordinary meaning of the “raw” text of the relevant treaty provisions and then seek to construe it in its context and in the light of the treaty's object and purpose. (Panel Report, US-Section 301 Trade Act, para. 7.22)
192 Appellate Body Report, US-Softwood Number IV, para. 59; Appellate Body Report, Canada-Aircraft, para. 153; and Appellate Body Report, EC - Asbestos, para. 92.
193 The 13 different dictionary definitions consulted by the Panel are set out in paragraphs. 6.55-6.59 of the Panel Report. Some of the definitions appear to contradict one another. For instance, the Shorter Oxford English Dictionary definition quoted by the Panel defines ‘sporting’ as both “characterized by sportsmanlike conduct“; and “[designating an inferior sportsman or a person interested in sport from purely mercenary motives”. (Panel Report, para. 6.55)
194 Panel Report, paras. 6.59-6.60.
195 Ibid., para. 6.61. (original emphasis)
196 The cover note is included in the excerpt from the United States’ Schedule attached as Annex III to this Report.
197 Panel Report, para. 6.63.
198 Ibid., para. 6.66.
199 Ibid., para. 6.67.
200 Panel Report, para. 6.82.
201 MTN.GNS/W/50, 13 April 1989.
202 Provisional Central Product Classification, Statistical Papers, Series M No. 77, United Nations (1991). The United Nations Central Product Classification has been revised on several occasions. The latest version is the Central Product Classification, Version 1.1, Statistical Papers, Series M No. 77, United Nations (2004).
203 The main purposes of the CPC are to provide a framework for international comparison of statistics dealing with goods, services, and assets and to serve as a guide for developing and revising existing classification schemes of products. (Preface to the CPC, p. V)
204 See infra, paras. 200 and 201 for further details on the CPC, and for the way in which the CPC classifies the services at issue in this dispute.
205 Scheduling of Initial Commitments in Trade in Services: Ex planatory Note, MTN.GNS/W/164, 3 September 1993, at p. 1.
206 For example, paragraphs 24 to 27 explain that: to indicate a full commitment, a Member should enter “None“; to make no commit ment, it should enter “UNBOUND“; and to make a commitment with limitations, the Member should enter a concise description of each measure, “indicating the elements which make it inconsistent with Articles XVI or XVII”.
207 Panel Report, para. 6.77.
208 Ibid., para. 6.80.
209 The Panel reasoned that assigning the task of drafting these documents to the Secretariat was simply ‘ ‘the most practical and efficient way to work on such a matter” and that such delegation did not deprive the parties to the negotiations of authorship. (Panel Report, para. 6.80)
210 Note on the Meeting of 27 May to 6 June 1991, MTN.GNS/42, para.19 (24 June 1991)(quoted in Panel Report, para. 3.41 and footnote 117 thereto).The paragraphs of this Note cited by the United States are taken from the minutes from a meeting that was heldafterthe Secretariat had circulated its first draft classification list, butbeforethe final version of W/120 had been circulated. The content of those paragraphs is as follows:18.The representatives of the European Communities, Canada, Chile, the United States,Japan, Poland,Sweden on behalf of the Nordic countries and Mexico found that the proposed classification contained in the informal note by the secretariat constituted an improvement over the list contained in MTN.GNS/W/50. There was confirmation of the agreement to base the classification of services sectors and subsectors as much as possible on the Central Product Classification (CPC) list. There was some agreement that putting together a classification list of services was an on going work which required coordination with efforts undertaken in other fora. The representative of Austria stressed the need to involve statistical experts in the work since the classification list resulting from the GNS would in the future serve as the basis for the compilation ofstatistics on services. The representative of Japan said not only statistical but also sectoral experts should take part in drawing up the list.19. The representative of the United States did not wish to have extensive discussions on the matter and stressed that the composition of the list was not a matter for negotiations. This view was shared by the representative of the European Communities. The representatives of the United States, Poland, Malaysia and Austria said that the list should be illustrative or indicative and not bind parties to any specific nomenclature. The representative of Malaysia suggested that it would be important to have the definitions behind individual items in the list, especially where there was a high degree of aggregation.
211 1993 Scheduling Guidelines, p. 1.
212 Panel Report, para. 6.82.
213 United States’ response to Question 5 posed by the Panel, Panel Report, p. C-26. (original emphasis)
214 Sector B of the Schedule is as follows “Computer and related services (MTN.GNS/W/120 a) - e), except airline computer reservation systems);” and the entry in sub-sector F.r reads “Publishing (Only part of MTN.GNS/W/120 category: ‘r) Printing, Publishing’)”.
215 The Panel made a similar point in paragraph 6.104 of the Panel Report and footnote 665 thereto.
216 GATS Article I:3(b). (emphasis added)
217 Article XXVIII provides that: (e) “sector” of a service means, (i) with reference to a specific commitment, one or more, or all, subsectors of that service, as specified in a Member's Schedule, (ii) otherwise, the whole of that service sector, including all of its subsectors;
218 See, for example, Articles VI: 1, VIII: 1, XVI, and XVII of the GATS.
219 If this were not the case, and a Member scheduled the same service in two different sectors, then the scope of the Member’ s commitment would not be clear where, for example, it made a full commitment in one of those sectors and a limited, or no, commitment, in the other. At the oral hearing in this appeal, both the United States and Antigua agreed that the entries in a Member's Schedule must be mutually exclusive. See also Panel Report, paras. 6.63, 6.101, and 6.119.
220 Antigua's and United States’ responses to questioning at the oral hearing.
221 In paragraph 6.97 of the Panel Report, the Panel stated that it agreed ‘ ‘with the United States that other Members’ Schedules comprise the ‘context’ within the meaning of Article 31:2 of the Vienna Convention.“
222 Panel Report, para. 6.98. By referring to other Members’ Schedules here, we are not interpreting such Schedules, but rather using them as “context” for the interpretation of the United States’ Schedule.
223 Before the Panel, the United States referred to the Schedulesof Iceland and Senegal. (See footnote 106 to para. 74 of the United States’ first written submission to the Panel)
224 The Panel observed, in an earlier discussion, that: … most Members chose to refer to CPC numbers to define the scope of their commitments: (i) only 17 schedules adopted a non-CPC approach; (ii) a few schedules have a “mixed ‘ approach, i.e. they include CPC numbers for some sectors only. (Panel Report, footnote 651 to para. 6.81)
225 As we observed supra, para. 179,the United States admits that it generally followed the W/120 structure, and its Schedule specifically refers to W/120 in two instances.
226 In most instances, the words appear to be used to excludethese services from the scope of the commitment. See the Schedules of Austria (GATS/SC/7); Bulgaria (GATS/SC/ 122); Croatia (GATS/SC/130); the European Communities (GATS/SC/31); Finland (GATS/SC/33); Lithuania (GATS/ SC/133); Slovenia (GATS/SC/99); and Sweden (GATS/SC/ 82). In two cases, however, the words appear to be used to make a limited specific commitment. See the Schedules of Peru (GATS/SC/69) and Senegal (GATS/SC/75).
227 See the Schedules of Australia (GATS/SC/6); Japan (GATS/ SC/46); Liechtenstein (GATS/SC/83-A); Switzerland (GATS/ SC/83); and Thailand (GATS/SC/85).
228 Although subsector 10.E, “Other”, figures in W/120, no such entry is included in the United States’ Schedule.
229 Senegal listed “Gambling and betting services” under 10.E.However, Senegal also appears to have made a relatively narrow commitment under 10.D, with respect to ‘ ‘RecreationalFishing” only.
230 See the Schedule of Bulgaria. (GATS/SC/122)
231 Panel Report, para. 6.101.
232 Supra, para. 180.
233 Panel Report, para. 6.107.
234 Ibid., para. 6.108.
235 Antigua's response to Question 1 posed by the Panel, PanelReport, pp. C-l to C-3.
236 Guidelines for the Scheduling of Specific Commitments underthe General Agreement on Trade in Services, S/L/92. The2001 Scheduling Guidelines serve, in the current round ofservices negotiations, the same function as the 1993 Scheduling Guidelines served in the Uruguay Round negotiations.The former reproduce the 1993 Scheduling Guidelines almostin their entirety, and contain some additional provisions. The2001 Scheduling Guidelines were adopted by the Council for Trade in Services on 23 March 2001.
237 Antigua referred to document S/CSC/W/27, a proposal submitted by the United States concerning the classification of energy services. (Antigua's first written submission to thePanel, footnote 301 to para. 173) Paragraph 2 of this document states that: These numerous energy-related activities are closely interrelated and, taken as a whole, can be said to comprise the “energy sector.” Some of these activities cut horizontally across existing GATS sectoral classifications (W/120), such as business services, communications services, construction services, financial services, and transportation services, among others. Others may involve activities that are not yet specified in existing GATS classifications, are deeply embedded in existing GATS classifications, or are not within the scope of the GATS, (emphasis added)
238 US Schedule of Commitments under the General Agreement on Trade in Services, United States International Trade Com mission, May 1997, p. 25.
239 Appellate Body Report, Japan-Alcoholic Beverages II, p.13, DSR 1996:1, 97, at 106. The Appellate Body, in that case, found that panel reports adopted by the GATT contractingparties do not constitute subsequent practice within the mean ing of Article 31(3)(b) of the Vienna Convention.
240 Appellate Body Report, Chile-Price Band System, para. 214.
241 United States’ response to Question 39 posed by the Panel,Panel Report, pp. C-63 to C-64.
242 The Panel concluded, at para. 6.110 of the Panel Report, that: The US Schedule, read in the light of paragraph 16 of the Scheduling Guidelines, can be understood to include a specific commitment on gambling and betting services under subsector 10.D (Recreational services (except sporting)), (original italics)
243 The Panel also had recourse to such means in order to ‘ ‘confirm” the meaning that it had reached through application of Article 31. (Panel Report, para. 6.112)
244 Some of the reasoning employed by the Panel in order to conclude (erroneously in our view) that these documents con stituted “context” nevertheless confirms that they constitute “preparatory work”, and are relevant “circumstances” relat ing to the conclusion of the GATS within the meaning of Article 32: … both W/120 and the 1993 Scheduling Guidelines are “in connexion” with the GATS. Both documents were drafted in parallel with the GATS itself, with the stated purpose of being used as “guides” for scheduling specific commitments under the GATS … In that sense, they can be considered to have been “drawn up on the occasion of the conclusion of the treaty”, (footnote omitted) (Panel Report, para. 6.81)
245 MTN.GNS/W/50, para. 6. (emphasis added)
246 The CPC hierarchy consists of Sections designated by one- digit codes, Divisions designated by two-digit codes, Groups designated by three-digit codes, Classes designated by four- digit codes, and Subclasses designated by five-digit codes.
247 Panel Report, para. 6.106.
248 Communication from the United States of America – Draft Final Schedule of the United States of America Concerning Initial Commitments, MTN.GNS/W/112/Rev.3, 7 December 1993. See also MTN.GNS/W/112/Rev.2, 1 October 1993.
249 Before the Panel, and at the oral hearing in this appeal, the European Communities explained that such notes were re moved as part of the process of “technical verification” of schedules and that the United States could not have unilaterally amended the scope of its commitments after 15 December 1993. See the parties’ responses to Question 3 posed by the Panel, Panel Report, pp. C-22ff.
250 United States’ appellant's submission, para. 83. (original emphasis)
251 Panel Report, para. 6.132 (quoting from p.viii of the USITC document), (emphasis added by the Panel) The USITC document also explains, on the same page, that: In preparing national schedules, countries were requested to identify and define sectors and subsectors in accordance with the GATT Secretariat's list, which lists sectors and their respective CPC numbers. Accordingly, foreign schedules frequently make explicit references to the CPC numbers. The U.S. Schedule makes no explicit references to CPC numbers, but it corresponds closely with the GATT Secretariat's list.
252 US Schedule of Commitments under the General Agreement on Trade in Services, United States International Trade Commission, May 1997, p. 25.
253 Panel Report, para. 6.133.
254 Ibid., para. 6.122.
255 Panel Report, para. 6.122 (referring in footnote to A. Aust, Modern Treaty Law and Practice, Cambridge University Press, 2000, p. 200).
256 Ibid., para. 6.133.
257 This notation is the opposite of the notation “Unbound”,which means that a Member undertakes no specific commitment.
258 Panel Report, paras. 6.338 and 6.355.
259 See Panel Report, paras. 6.421 and 7.2(b). The Panel's findings that specific measures afforded treatment less favourable than that provided for in the United States’ schedule are found in paragraphs 6.365, 6.373, 6.380, 6.389, 6.395, and 6.412.
260 Supra, paras. 154 and 155.
261 United States’ Notice of Appeal, para. 3(c), supra, footnote 22.
262 We understand the relevant findings to be those in paragraphs 6.287 and 6.290 of the Panel Report. The Panel found that: (i) as regards a particular service, a Member that has made an unlimited market access commitment under mode 1 commits itself not to maintain measures that prohibit the use of one, several or all means of delivery of that service; and (ii) a Member that has made a market access commitment in a sector or subsector has committed itself in respect of all services that fall within the relevant sector or subsector.
263 In response to a question on this issue at the oral hearing, the United States stated that its arguments on these points are in the nature of “subsidiary” or “supporting” arguments. According to the United States, these arguments illustrate why the Panel's interpretation of sub-paragraphs (a) and (c) of Article XVI was “unreasonable”.
264 United States’ appellant's submission, para. 98.
265 Panel Report, para. 6.338.
266 In footnote 166 to paragraph 105 of its appellant's submission, the United States refers to “The New Shorter Oxford English Dictionary, p. 1006, which defines “form” inter alia as “shape, arrangement of parts,” or “[t]he particular mode in which a thing exists or manifests itself,” or, in linguistics, “the external characteristics of a word or other unit as distinct from its meaning”.
267 The United States, at footnote 167 to paragraph 105 of its appellant's submission, observes that the “New Shorter Ox ford English Dictionary, at p. 1955, defines “numerical” as“[o]f, pertaining to, or characteristic of a number or numbers; (of a figure, symbol, etc.) expressing a number.“
268 The United States’ appellant's submission, footnote 167 to para. 105 (referring to the New Shorter Oxford English Dictionary, p. 2454).
269 See the WTO Secretariat Note on “Economic Needs Tests”, S/CSS/W/118, 30 November 2001, para. 4.
270 Panel Report, para. 6.331.
271 We recall that the Panel identified, as forming part of the object and purpose of the GATS: transparency, the progressive liberalization of trade in services, and Members’ right to regulate trade in services provided that they respect the rights of other Members under the GATS. (Panel Report, paras. 6.107-6.109, and 6.314-6.317)
272 In paragraph 6.332 of the Panel Report, the Panel reasoned that: To hold that only restrictions explicitly couched in numerical terms fall within Article XVI:2(a) would produce ab-surd results. It would, for example, allow a law that explicitly provides that “all foreign services are prohibited” to escape the application of Article XVI, because it is not expressed in numerical terms.
273 Supra, para. 196
274 See 1993 Scheduling Guidelines, para. 6.
275 Panel Report, para. 6.335.
276 Ibid., para. 6.338.
277 Ibid..
278 Ibid., para. 6.343.
279 Ibid., para. 6.344.
280 Ibid., para. 6.355.
281 The French version reads ‘ ‘limitations concernant le nombre total d'opérations de services ou la quantité totale de services produits, exprimées en unités numériques déterminées, sous forme de contingents ou de l'exigence d'un examen des be-soins économiques'; and the Spanish version reads ‘limitaciones al número total de operaciones de servicios o a la cuantia total de la producción de servicios, expresadas en unidades numéricas designadas, en forma de contingentes o mediante la exigencia de una prueba de necesidades economicas”.
282 United States’ appellant's submission, paras. 114-120.
283 That is: (i) limitations … expressed in terms of designated numerical units in the form of quotas; or (ii) limitations … expressed in terms of the requirement of an economic needs test.
284 That is: (i) limitations … expressed in terms of designated numerical units; (ii) limitations … expressed … in the form of quotas; or (iii) limitations … exp ressed in terms of the requirement of … an economic needs test.
285 Statement by the Co-Chairman at the meeting of 17-27 September 1991, MTN.GNS/45, para. 16.
286 Ibid.
287 1993 Scheduling Guidelines, p. 3.
288 Panel Report, paras. 6.321 and 6.348-6.349.
289 Panel Report, paras. 6.382-6.383 (Colorado), 6.397-6.398 (Minnesota), 6.401-6.402 (New Jersey), and 6.405-6.406 (New York).
290 Supra, para. 155.
291 Panel Report, para. 6.318. See also paras. 6.298-6.299.
292 Antigua's other appellant's submission, footnote 3 to para. 3. See also Antigua's other appellant's submission, para. 55.
293 Section 1084(a) of Title 18 of the United States Code (quoted in Panel Report, para. 6.360).
294 Panel Report, para. 6.362.
295 Ibid., para. 6.363.
296 Ibid.
297 Section 1952(a) and (b) of Title 18 of the United States Code (quoted in Panel Report, para. 6.366).
298 Panel Report, para. 6.370. See also para. 6.367.
299 Ibid., paras. 6.368-6.370.
300 Ibid., para. 6.371.
301 Section 1955(a) and (b) of Title 18 of the United States Code (quoted in Panel Report, para. 6.374).
302 Panel Report, paras. 6.376-6.378.
303 Supra, para. 213.
304 Supra, paras. 149-155.
305 Panel Report, paras. 6.211-6.249.
306 Antigua's other appellant's submission, para. 72
307 Ibid.
308 Antigua's other appellant's submission, para. 73.
309 The issue before us, therefore, is distinct from that addressed by the Appellate Body in EC - Bananas III, where a re sponding party challenged the panel's consideration of claims mentioned by certain complaining parties in the panel request, but not supported by any arguments until the second written submission before the panel. (Appellate Body Report, EC-Bananas III, paras. 145-147; see also Appellate Body Report, Chile-Price Band System, paras. 158-162) Here, we address a complaining party's challenge to a defence invoked by the responding party.
310 Appellate Body Report, Australia - Salmon, para. 278. See also Appellate Body Report, Chile - Price Band System, para. 176.
311 Appellate Body Report, US-FSC, paras. 165-166. See also Appellate Body Report, Thailand - HBeams, para. 95.
312 See, for example, Appellate Body Report, EC-Tariff Preferences, para. 113; Appellate Body Report, US - Oil Country Tubular Goods Sunset Reviews, para. 161; and Appellate Body Report, Thailand - H-Beams, para. 88.
313 Appellate Body Report, US-Carbon Steel, para. 123; Appellate Body Report, Mexico - Corn Syrup (Article 21.5-US), para. 50; Appellate Body Report, US-FSC, para. 166; and Appellate Body Report, US-1916 Act, para. 54.
314 See, for example, Appellate Body Report, US-1916 Act, para. 150; and Appellate Body Report, US-FSC (Article 21.5-EC), para. 243.
315 Appendix 3 to the DSU. We note that the Panel in this dispute operated under Working Procedures, drawn up in consultation with the parties, that provided for “all factual evidence [to be submitted] to the Panel no later than during the first substantive meeting, except with respect to evidence necessary for purposes of rebuttals or answers to questions.” (Working Proce dures of the Panel, Panel Report, p. A-2, para. 12)
316 Appellate Body Report, Argentina-Textiles and Apparel, para. 79. The first stage of panel proceedings continues through the first substantive panel meeting, whereas the second stage continues thereafter through the second substantive panel meeting.
317 Appellate Body Report, Chile-Price Band System, para. 164. See also Appellate Body Report, EC-Tariff Preferences, para. 113.
318 Appellate Body Report, Chile-Price Band System, paras. 174-177.
319 See Appellate Body Report, Australia-Salmon, para. 272.
320 In paragraph 87 of its second written submission to the Panel, the United States argued that the Wire Act, the Travel Act, and the IGBA “meet the requirements of Article XIV, over and above the fact that they are also consistent with the remain der of the GATS.“
321 Antigua's first written submission to the Panel, para. 202 (“It is possible that the United States may try during the course of this proceeding to invoke one or more of the general exceptions of Article XIV of the GATS.“).
322 Antigua's statement at the second substantive panel meeting, paras. 68-83; United States’ statement at the second substantive panel meeting, paras. 74-76.
323 Antigua's response to questioning at the oral hearing.
324 Ibid.
325 Antigua's other appellant's submission, para. 73.
326 Antigua's other appellant's submission, para. 80.
327 Panel Report, paras. 6.499-6.505.
328 Ibid., paras. 6.506-6.509.
329 Ibid., paras. 6.510-6.514.
330 United States’ appellant's submission, para. 188.
331 Appellate Body Report, EC-Hormones, para. 156. See also Appellate Body Report, US-Certain EC Products, para. 123.
332 Appellate Body Report, Chile-Price Band System, para. 173.
333 United States’ second written submission to the Panel, para. 45.
334 United States’ first written submission to the Panel, paras. 10-11; United States’ second written submission to the Panel, paras. 46-49.
335 United States’ first written submission to the Panel, paras. 12-13; United States’ second written submission to the Panel, para. 50.
336 United States’ first written submission to the Panel, paras. 14-15; United States’ second written submission to the Panel, para. 51.
337 United States’ first written submission to the Panel, paras. 16-18; United States’ second written submission to the Panel, paras. 54-56.
338 United States’ first written submission to the Panel, paras. 19-21; United States’ second written submission to the Panel, paras. 52-53.
339 See the United States’ second written submission to the Panel, para. Ill and footnote 139 thereto (referring to the United States’ second written submission, paras. 46-51); and para. 114 and footnote 143 thereto (referring to the United States’ second written submission, paras. 54-55).
340 United States’ first written submission to the Panel, Section III.A.4 (“Supply of gambling into private homes, workplaces, and other environments creates additional health risks“); United States’ second written submission to the Panel, Section III.B.1.b.iv (“Remote gambling poses a greater and broader threat to human health“).
341 Antigua's first written submission to the Panel, paras. 110- 111, 117-118, 122-123, 125-128, and 188; Antigua's second written submission to the Panel, para. 39; Antigua's statementat the first substantive panel meeting, paras. 88-96; Antigua'sstatement at the second substantive panel meeting, paras. 61- 67; Antigua's response to Question 19 posed by the Panel, Panel Report, pp. C-45 to C-49.
342 See, for example, United States’ first written submission to the Panel, para. 102 (“relevant restrictions on remote supply of gambling under U.S. law, whether by Internet or other means, are based on objective criteria that apply regardless of the national origin of the service or service supplier“); United States’ second written submission to the Panel, para. 61 (“As the United States has repeatedly pointed out, U.S. restrictions on remote supply of gambling apply regardless of national origin“); United States’ statement at the first substantive panel meeting, para. 52 (“The United States again points out, as we have throughout this dispute that U.S. restrictions applicable to Internet gambling and other forms of gambling services that Antiguan firms seek to supply on a cross-border basis apply equally to those remo te supply activities within the United States.“); United States’ statement at the second substantive paneJ meeting, paras. 61-68; United States’ responses to Questions 19 and 21-22 posed by the Panel, PanelReport, pp. C-45 to C-49 and C-50 to C-51.
343 Panel Report, para. 6.426.
344 Ibid., para. 6.584. See also paras. 6.585-6.603.
345 United States’ second written submission to the Panel, para. 118.
346 Antigua's statement at the second substantive panel meeting, para. 80.
347 Antigua's other appellant's submission, para. 121.
348 Infra, para. 337.
349 Notwithstanding the general similarity in language between the two provisions, we note that Article XIV(a) of the GATS expressly enables Members to adopt measures “necessary to protect public mora Is or to maintain public order”, whereas the corresponding exception in the GATT 1994, Article XX(a), speaks of measures “necessary to protect public morals”, (emphasis added)
350 See, for example, paragraphs (a), (b), and (d) of Article XX of the GATT 1994:(a)necessary to protect public morals; (b) necessary to protect human, animal or plant life or health;(d)necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement, including those relating to customs enforcement, the enforcement of monopolies operated under paragraph 4 of Article II and Article XVII, the protection of patents, trade marks and copyrights, and the prevention of deceptive practices.
351 In this respect, we observe that this case is not only the first where the Appellate Body is called upon to address the general exceptions provision of the GATS, but also the first under any of the covered agreements where the Appellate Body is requested to address exceptions relating to ‘ ‘public morals ‘'.
352 Appellate Body Report, US-Shrimp, para. 147. See also Appellate Body Report,US-Gasoline, p. 22, DSR 1996:1, 3, at 20
353 Appellate Body Report, US-Gasoline, pp. 17-18, DSR 1996:1, 3, at 16.
354 Panel Report, paras. 6.479-6.487.
355 Ibid., paras. 6.488-6.534.
356 Ibid., para. 6.535.
357 Panel Report, para. 6.487.
358 Ibid., para. 6.465.
359 Ibid., para. 6.467.
360 Ibid., para. 6.486.
361 Ibid., para. 6.487.
362 Antigua's other appellant's submission, para. 89.
363 Panel Report, para. 6.467.
364 Antigua's other appellant's submission, para. 90. (original emphasis)
365 Panel Report, para. 6.487.
366 Ibid.
367 Ibid., para. 6.492: On the basis of the foregoing, it is clear to us that the interests and values protected by the Wire Act, the Travel Act (when read together with the relevant state laws) and the Illegal Gambling Business Act (when read together with the relevant state laws) serve very important societal interests that can be characterized as “vital and important in the highest degree” in a similar way to the characterization of the protection of human life and health against a life-threatening health risk by the Appellate Body in EC-Asbestos, (quoting Appellate Body Report, EC-Asbestos, para. 172)
368 Ibid., para. 6.494.
369 Ibid., para. 6.495.
370 Ibid., para. 6.531.
371 Antigua's other appellant's submission, para. 97.
372 United States’ appellant's submission, para. 139.
373 Appellate Body Report, India-Patents (US), para. 66.
374 Appellate Body Report, Korea-Various Measures on Beef, para. 164.
375 Appellate Body Report, Korea-Various Measures on Beef, para. 166.
376 Ibid., para. 162. See also Appellate Body Report, EC–Asbestos, para. 172.
377 Appellate Body Report, Korea-Various Measures on Beef, para. 164.
378 Ibid., para. 166.
379 Appellate Body Report, EC-Asbestos, paras. 172-174. See also Appellate Body Report, Korea-Various Measures on Beef, para. 180.
380 Appellate Body Report, US-Gasoline, pp. 22-23, DSR 1996:1, 3, at 21; Appellate Body Report, US-Wool Shirts and Blouses, pp. 15-16, DSR 1997:1, 323, at 337; Appellate Body Report, US-FSC (Article 21.5-EC), para. 133.
381 Appellate Body Report, Korea - Various Measures on Beef, para. 161.
382 Panel Report, paras. 6.498-6.520.
383 The Panel found that the United States had not submitted “concrete evidence” showing the particular vulnerability of the remote supply of gambling services to involvement by organized crime. Therefore, the Panel concluded, the United States had not demonstrated why the means used to regulate nonremote supply of gambling services could not sufficiently guard against the risk of organized crime . (Panel Report, para. 6.520)
384 Panel Report, paras. 6.500-6.504.
385 Ibid., paras. 6.507 and 6.508.
386 Ibid., paras. 6.511-6.513.
387 Ibid., paras. 6.516-6.518.
388 Supra, paras. 258-263.
389 The Appellate Body employed similar reasoning with respect to a prohibition on the import of products containing asbestos. See Appellate Body Report, EC-Asbestos, para. 168: By prohibiting all forms of amphibole asbestos, and by severely restricting the use of chrysotile asbestos, the measure at issue is clearly designed and apt to achieve that level of health protection.
390 Panel Report, para. 6.528. (emphasis added) See also paras. 6.496, 6.522, and 6.534.
391 Ibid., para. 6.531. See also para. 6.534.
392 Panel Report, paras. 6.533-6.535.
393 United States’ appellant's submission, para. 139.
394 Ibid., para. 142.
395 Ibid., para. 152.
396 Panel Report, para. 6.531.
397 Antigua's other appellant's submission, para. 103.
398 Ibid., para. 104.
399 See Panel Report, paras. 6.497-6.498. This type of approach was expressly encouraged by the Appellate Body in Korea-Various Measures on Beef, para. 172: The application by a Member of WTO-compatible enforcement measures to the same kind of illegal behaviour-the passing off of one product for another-for like or at least similar products, provides a suggestive indication that an alternative measure which could “reasonably be expected’ ‘ to be employed may well be available. The application of such measures for the control of the same illegal behaviour for like, or at least similar, products raises doubts with respect to the objective necessity of a different, much stricter, and WTO-inconsistent enforcement measure, (original emphasis)
400 Supra, paras. 315-318.
401 Supra, para. 309.
402 Supra, paras. 310-311.
403 Supra, para. 317.
404 United States’ appellant's submission, para. 176.
405 Panel Report, paras. 6.492 and 6.533.
406 Ibid., para. 6.493.
407 Ibid., para. 6.494.
408 Ibid., para para. 6.495.
409 Ibid., para. 6.505.
410 Ibid.
411 Ibid., para. 6.507.
412 Ibid., para. 6.514.
413 Panel Report, para. 6.534.
414 Ibid., para. 6.533.
415 United States’ appellant's submission, para. 137.
416 Panel Report, paras. 6.497-6.498.
417 Supra, para. 317.
418 We address in the next sub-section of this Report the appeals raised by Antigua and the United States under Article 11 of the DSU, with respect to the Panel's analysis under Article XIV(a) of the GATS, and find them to be either without merit or not necessary to rule on in order to resolve this dispute.
419 Antigua's other appellant's submission, paras. 107-110 and 113-118.
420 Ibid., para. 113. (emphasis added)
421 Appellate Body Report, EC-Hormones, para. 132.
422 Appellate Body Report, US-Wheat Gluten, para. 151. See also Appellate Body Report, Canada - Wheat Exports and Grain Imports, para. 181.
423 Appellate Body Report, Japan-Apples, para. 221 (referring in footnote to Appellate Body Report, EC-Bed Linen (Article 21.5-India), para. 170, and Appellate Body Report, US-Carbon Steel, para. 142).
424 Panel Report, paras. 6.361-6.362, 6.367, and 6.375. See alsosupra, para. 258-263.
425 United States’ appellant's submission, paras. 171-175.
426 Panel Report, para. 6.566.
427 Appellate Body Report, US-Gasoline, p. 22, DSR 1996:1, 3, at 20.
428 Ibid., p. 22, DSR 1996:1, 3, at 20-21.
429 Panel Report, para. 6.608.
430 Panel Report, para. 6.566.
431 Appellate Body Report, Korea - Various Measures on Beef, para. 156.
432 Antigua's other appellant's submission, para. 141.
433 Appellate Body Report, India-Patents (US), para. 87; Appel late Body Report, US-Wool Shirts and Blouses, p. 19, DSR 1997:1, 323, at 340; Appellate Body Report, Canada-Autos, para. 114.
434 Appellate Body Report, US-Softwood Lumber IV, para. 118.
435 Panel Report, para. 6.498.
436 Antigua's other appellant's submission, para. 142.
437 Supra, para. 313.
438 Panel Report, para. 6.584.
439 Ibid., para. 6.588.
440 Panel Report, para. 6.599: … the text of the revised statute does appear, on its face, to permit interstate pari-mutuel wagering over the telephone or other modes of electronic communication, which presumably would include the Internet, as long as such wagering is legal in both states.
441 Ibid., para. 6.607.
442 Supra, para. 287.
443 See Panel Report, paras. 6.578-6.581, where the Panel discusses Appellate Body decisions relating to the chapeau of Article XX of the GATT 1994. In particular, we note the Panel's quotation of the relevant portion of paragraph 150 of the Appellate Body decision in US-Shrimp, which states: [under the chapeau, first,] the application of the measure must result in discrimination. As we stated in United States - Gasoline, the nature and quality of this discrimination is different from the discrimination in the treatment of products which was already found to be inconsistent with one of the substantive obligations of the GATT 1994, such as Articles I, III or XI. Second, the discrimination must be arbitrary or unjustifiable in character, (original emphasis; footnote omitted) (Panel Report, para. 6.578 (quoting Appellate Body Report, US-Shrimp, para. 150))
444 Ibid., para. 6.585.
445 Ibid., para. 6.585.
446 Ibid., para. 6.586.
447 Ibid., para. 6.588.
448 Panel Report, para. 6.588.
449 Ibid., para. 6.589.
450 Supra, paras. 258-263.
451 Panel Report, para. 6.588.
452 Supra, paras. 258-263.
453 Panel Report, paras. 6.590-6.594.
454 Ibid., paras. 6.601-6.603.
455 Antigua's other appellant's submission, paras. 144-145.
456 See supra, para. 282.
457 We understand the Panel to have predicated its examination of the IHA on its view that the services under the IHA include services subject to the specific commitment undertaken by the United States in subsector 10.D of its Schedule.
458 Section 3004 of Title 15 of the United States Code, Exhibit AB-82 submitted by Antigua to the Panel, (emphasis added)
459 Section 3002 of Title 15 of the United States Code, Exhibit AB-82 submitted by Antigua to the Panel.
460 Antigua submitted additional evidence in support of its reading of the IHA. See, for example, Panel Report, footnote 1061 to para. 6.599 and footnote 1062 to para. 6.600 (citing, inter alia, Congressional Record, House of Representatives Proceedings and Debates of the 106th Congress, Second Session (26 Octo ber 2000) 146 Cong. Rec. H 11230, 106th Cong. 2nd Sess. (2000), Exhibit AB-124 submitted by Antigua to the Panel); and United States General Accounting Office, Internet Gambling: An Overview of the Issues (December 2002), Appendix II, Exhibit AB-17 submitted by Antigua to the Panel.
461 Panel Report, para. 6.595 (quoting Antigua's statement at the first substantive panel meeting, para. 92).
462 The Wire Act, the Travel Act, and the IGBA prohibit a broad range of gambling and betting activities when they involve foreign or interstate commerce. (Panel Report, paras. 6.362, 6.367, and 6.375)
463 Panel Report, para. 6.597 (quoting United States’ response to Question 21 posed by the Panel, Panel Report, p. C-50).
464 Panel Report, para. 6.595 (citing, inter alia, United States’ first written submission to the Panel, paras. 33-35); United States’ second written submission to the Panel, para. 63; and United States’ response to Question 21 posed by the Panel, Panel Report, p. C-50. See also Panel Report, para. 6.597 (citing, inter alia, United States’ response to Question 21 posed by the Panel, Panel Report, p. C-50); and Presidential Statement on Signing the Departments of Commerce, Justice, State, the Judiciary, and Related Agencies Appropriation Act, 21 December 2000, Exhibit US-17 submitted by the United States to the Panel, pp. 3155-3156.
465 United States’ response to Question 21 posed by the Panel, Panel Report, p. C-50; United States'second written submission to the Panel, paras. 63-64.
466 Supra, para. 330.
467 Appellate Body Report, EC - Hormones, para. 133. See also Appellate Body Report, Japan - Apples, para. 222.
468 Panel Report, para. 6.589.
469 Supra, para. 357.
470 Panel Report, paras. 6.589 and 6.607.
471 Supra, para. 357.
472 Panel Report, para. 6.607.
473 Supra, paras. 364 and 366.
474 See also Panel Report, para. 6.608.
475 Ibid., para. 6.599.
476 Supra, para. 127.
477 Supra, paras. 128, 156, 333 and 365.
478 Supra, para. 256.