HAS THE UNITED STATES UNDERTAKEN SPECIFIC COMMITMENTS ON GAMBLING AND BETTING SERVICES?Claims and main arguments of the partiesAntigua claims that by virtue of entry 10.D in its GATS Schedule of Specific Commitments under subheading "Other Recreational Services (except sporting)", the United States has made a full market access and a full national treatment commitment for the cross-border supply (mode 1) of "gambling and betting" services. The United States denies this claim altogether, contending that its Schedule makes no such commitment. In support of its claim, Antigua argues that the US Schedule is based on the Services Sectoral Classification List and that sub sector 10.D of the US Schedule includes CPC category "9649 Other recreational services" which encompasses CPC category "96492 Gambling and betting services". Antigua points out that, since under Article XX:3 of the GATS, Members' schedules are an integral part of the GATS, they must be interpreted on the basis of the Vienna Convention's rules of interpretation. On that basis, Antigua argues that an interpretation based on the ordinary meaning of the words "Other recreational services" in the US Schedule leads to the conclusion that gambling and betting services fall within this broadly worded category. Alternatively, they could fall under sub sector 10.A, "Entertainment services". With respect to the context of the US Schedule, the two most important agreements and instruments connected to the conclusion of the GATS that are relevant for the interpretation of GATS Schedule are W/120 and the 1993 Scheduling Guidelines. As to the practice in the application of the GATS, Antigua submits that WTO Members have consistently referred to W/120 (and its cross-references to the CPC) as the classification used for GATS purposes and as the main point of reference for any discussion on such a classification. Even the United States International Trade Commission uses W/120 and its cross-references to CPC as a tool to interpret the US Schedule. Moreover, the US Draft Final Schedule during the Uruguay Round confirmed that the United States had scheduled specific commitments according to the 1993 Scheduling Guidelines and W/120. 1.1 The United States replies that Antigua has incorrectly interpreted the US Schedule to the GATS. Even assuming arguendo the possible relevance of sector 10, Antigua's claims to find there a US commitment for cross-border supply of gambling services rely on W/120 and its references to the CPC Prov. Document W/120 is part of the negotiating history of the GATS, which is at best a supplementary means of interpretation. The United States argues that the context for the US Schedule includes other Members' schedules. Accordingly, the proper context for the US Schedule includes the fact that some Members based their schedules, or parts of them, on the CPC, while others did not. 1.2 The United States submits that a proper interpretation of the US Schedule, without recourse to the CPC, would show that the United States made no commitment for measures affecting gambling services. Because of the absence of a textual basis for referring to the CPC, the legal definition of the scope of a non CPC commitment must be deduced through application of customary rules of treaty interpretation. Antigua's allegations regarding a possible US commitment for gambling services rely on sub-sectors 10.A and 10.D of the US Schedule to the GATS, which do not contain an explicit reference to gambling services. The ordinary meaning of "sporting" in sub sector 10.D confirms that the United States has made no commitments for gambling and betting under that sub-sector. Gambling is a sui generis activity that, if it belongs anywhere in sector 10, it can only be in sub sector 10.E, where the United States made no commitment. 1.3 The United States further submits that the USITC Document is merely an "explanatory" text prepared by an independent agency and does not purport to interpret the US Schedule. Finally, the cover-note to the US Draft Final Schedule only confirms that the United States followed the structure of W/120, without adopting the CPC nomenclature. The United States concludes that it should come as no surprise that it did not schedule commitments for gambling and betting services, given the overriding policy concerns surrounding those services, which are reflected in the extremely strict limitations and regulations of these services in the United States.
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