Kill Kyl’s Bill? Proposed Legislature Seeks to Pardon U.S. From Decade-Long Trade Dispute – Antiguan Minister Opines “Legislative Historical Fiction”

The Minister of Finance and the Economy for Antigua and Barbuda said today that last week’s release of the text of Senator Jon Kyl’s (R-AZ) online poker legislation wrongly argues that the United States has never been in violation of international trade law – when, in fact, the U.S. has been engaged in a decade-long trade dispute with Antigua over online gaming.

Minister Harold Lovell made clear that for the last decade the U.S. has unilaterally ignored repeated rulings by the World Trade Organization (WTO) that found their prohibition against online gaming is in violation of international trade law. Sen. Kyl’s legislation would provide the gaming industry in the U.S. with the exclusive ability to offer online poker services.

“The wording of Senator Kyl’s legislation misrepresents the facts,” Minister Lovell said. “Given that the U.S. has been immersed in a trade dispute for the last decade with Antigua and Barbuda, the evidence is there for all to see that remote gaming was always at issue. This is nothing short of legislating historical fiction.”

The legislation doubles down on the U.S. track record of protectionism for its domestic gaming industry. The draft bill would continue to unfairly block international gaming operators from having access to the U.S. market. Additionally, the bill would create an artificial advantage for U.S. casinos in an effort to prohibit consumers from utilizing international gaming products. Finally, the legislation continues to criminalize any services that are offered by non-U.S. gaming operators.

Specifically, the draft legislation makes the assertion that: “The United States never intended to include Internet gaming of any kind with the scope of its commitments under the General Agreement for Trade in Services (GATS), and therefore, no World Trade Organization member had any competitive expectation of access to the United States Internet gaming market.”

Mark Mendel, the attorney who has represented the Antiguan government since it first came before the WTO in 2003, said: “In point of fact, a substantial majority of the WTO members who adopted schedules under the GATS either excluded gaming services directly, modified their commitments in particular ways to suit their domestic concerns, or excluded the entire section under which gaming services were contained. It is simply not possible that U.S. negotiators could have been ignorant of this provision or its consequences for the gaming industry.”

Senator Kyl’s bill also puts a time constraint on the U.S. Trade Representative (USTR) to resolve the dispute with Antigua. Under the draft legislation, the USTR must negotiate a settlement with Antigua no later than 180 days after the adoption of the bill. If the negotiations do not succeed, the U.S. is obligated to move to arbitration at the WTO under GATS Article XXI to resolve the dispute.

We are encouraged to have a timeframe adopted by the U.S., which continues to stonewall all efforts by the Government of Antigua and Barbuda to resolve this dispute,” Minister Lovell continued. “However, good faith negotiation requires much more adherence to international law than this legislation is offering. Because a proper, comprehensive settlement will likely involve a legislative component,” added the Minister, “it would seem to us that a settlement prior to adoption of legislation, which then incorporated the terms of the settlement, would be the wiser and more appropriate course of action.”

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