Monday, March 18, 2013

Antigua case - An illogical ruling?

I have blogged about the US Online Gambling case here.

Stewart and Stewart, while making a detailed analysis of the dispute here, argue that the measure of cross-retaliation in this case is an illogical step and could harm the WTO system.
"As explained above, this case presents a unique situation in which a WTO member has responded to an adverse WTO ruling by seeking to amend its WTO commitments to make clear that its obligations do not apply to the domestic policy which had been found problematic. To obtain this amendment, the U.S. was required to provide compensation to all affected WTO members, not only those who would have been entitled to retaliate if they had brought the original dispute. As noted above, the U.S. was able to reach agreements with each of the countries that requested compensation except for Antigua. If agreement had been reached with Antigua, or if arbitration under Article XXI of the GATS had settled the amount of compensation to be provided, the U.S. would now be in compliance with its amended WTO obligations even with its domestic gambling policies still in place, and Antigua (along with other countries) would be compensated for the withdrawn concession.

Instead, because WTO rules permit Antigua to withdraw benefits for the on-going violation under the DSU even as arbitration under the GATS remains suspended, the U.S. is now faced with the prospect of open-ended retaliation for on-going violations it is unable to address through a renegotiation of its commitments. In short, the U.S. may have to pay two times to resolve one problem – once to amend its obligations to reflect what it thought it had originally agreed to when it negotiated the GATS, and once as a result of retaliation authorized in the course of a dispute launched before that amendment was made."
The above submission raises the important point of domestic policy space to amend past commitments in the context of a dispute.This piece however seems to support Antigua. Interesting...

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