page 374 note 1 United States-Measures Affecting the Cross-Border Supply of Gambling and Betting Services, Recourse to Arbitration by the United States under Article 22.6 of the DSU, WT/ DS285/ARB, Arbitration Report circulated on Dec. 21, 2007 [hereinafter Arbitration Report].

page 374 note 2 U.S. General Accounting Office (GAO), Internet Gambling-An Overview of the Issues, GAO-03-89 (Dec. 2002), available at <http://www.gao.gov/new.items/dQ389.pdf.>

page 374 note 3 See Ross, Caley, David Gambles to Slay Goliath and Barely Lives to Tell the Tale: Antigua v. United States, 11 Gaming L. Rev. 674, 674 (2007).CrossRefGoogle Scholar

page 374 note 4 Id.

page 374 note 5 Id.

page 374 note 6 See Joost Pauwelyn, WTO Condemnation of U.S. Ban on Internet Gambling Pits Free Trade against Moral Values, ASIL Insights, Nov. 2004, available at <http://www.asil.org/insights/2004/1l/insightO41117.html.>

page 374 note 7 Regarding a concise analysis on the original panel and the Appellate Body report on Gambling case, see Trachtman, Joel P., United States-Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R, 99 Am. j. Int'l L. 861 (2005)CrossRefGoogle Scholar.

page 374 note 8 United States-Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/R, Panel Report circulated on Nov. 10, 2004, para. 6.338.

page 374 note 9 Id., para. 6.531.

page 374 note 10 United States-Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R, Appellate Body Report circulated on Apr. 7, 2005, para. 327.

page 374 note 11 Id., para. 369.

page 374 note 12 United States - Measures Affecting the Cross-Border Supply of Gambling and Betting Services, Recourse to Article 21.5 of the DSU by Antigua and Barbuda, WT/DS285/RW, Panel Report circulated on Mar. 30, 2007.

page 374 note 13 Arbitration Report, supra note 1, para. 3.1.

page 374 note 14 Id., para. 3.2.

page 374 note 15 Id., para. 3.17.

page 374 note 16 Id., para. 3.4.

page 374 note 17 Id., para. 3.25.

page 374 note 18 Id., para. 3.43.

page 374 note 19 Id., paras. 3.90-92.

page 374 note 20 Id., para. 3.177.

page 374 note 21 Id., para. 3.179.

page 374 note 22 Id., para. 3.181.

page 374 note 23 Id., para. 3.182.

page 374 note 24 Id., para. 3.184.

page 374 note 25 Id., para. 3.187.

page 374 note 26 Id., para. 3.188.

page 374 note 27 WTO Dispute Settlement Understanding (DSU), art. 22.3(a), available at <http://www.wto.org/english/docs_e/legal_e/legal_e.htm.>

page 374 note 28 Id., art. 22.3(b)

page 374 note 29 Id., art. 22.3(c).

page 374 note 30 Arbitration Report, supra note 1, para. 4.18.

page 374 note 31 Id., para. 4.52.

page 374 note 32 Id., paras. 4.90, 4.99.

page 374 note 33 Id., paras. 4.110, 4.113,4.119.

page 374 note 34 Id., paras. 5.2-5.3.

page 374 note 35 Id., para. 5.9.

page 374 note 36 Id., para. 5.12.

page 374 note 37 Patricia Campbell, Deadline Passes for U.S. to Settle Online Gambling Dispute, Antigua Sun, Mar. 31, 2008.

page 437 note 1 Report of the Appellate Body on United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services (WT/DS285/AB/R), (hereafter the “Appellate Body Report”) and Report of the Panel on United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services (WT/DS285/R) (hereafter the “Panel Report”).

page 437 note 2 Report of the Appellate Body, para. 373.

page 437 note 3 WT7DS285/13.

page 437 note 4 WT/DS285/17.

page 437 note 5 WT7DS285/18.

page 437 note 6 WT/DS285/22.

page 437 note 7 WT7DS285/23.

page 437 note 8 See WT/DS27/ARB, para. 4.1 and WT/DS26/ARB para.3.

page 437 note 9 EC-Bananas III (Ecuador) (Article 22.6-EC), EC-Bananas III (US) (Article 22.6-EC) (requests by the US and by Ecuador); EC-Hormones (Canada) (Article 22.6-EC) EC-Hormones (US) (Article 22.6 - EC) (requests by Canada and the US); US-1916 Act (EC) (Article 22.6 - US) (request by the EC); US-Offset Act (Byrd Amendment) (Article 22.6-US) (requests by Brazil, Canada, Chile, EC, India, Japan, Korea and Mexico). Also relevant as an example of determination of level of nullification or impairment is an arbitration that took place under Article 25 of the DSU in the US - Section 110(5) Copyright Act (Article 25). We note that there have also been several arbitrations under Article 22.6 of the DSU in cases involving export subsidies, for which the SCM Agreement provides a distinct legal standard for the determination of the level of countermeasures. In those cases, the arbitrators were required to determine, under Article 4.11 of the SCM Agreement, “whether the countermeasures [proposed by the complaining Member] are appropriate”. Those cases are therefore not directly relevant for the purposes of determining the Arbitrator's mandate in relation to a determination of “equivalence” under Articles 22.6 and 22.7. Nonetheless, we do not exclude that some aspects of those decisions may be relevant to our determinations.

page 437 note 10 US - 1916 Act (EC) (Article 22.6-US), Decision by the arbitrators, para. 4.5.

page 437 note 11 Decision by the arbitrators, EC-Bananas III (US) (Article 22.6-EC), para. 6.3.

page 437 note 12 Decision by the arbitrators, EC - Bananas III (US) (Article 22.6-EC), para. 4.3.

page 437 note 13 Decision by the arbitrators, EC - Bananas III (US) (Article 22.6-EC), para. 4.2.

page 437 note 14 Decision by the arbitrators, EC-Hormones, para. 12. See also decision by the arbitrators, EC - Bananas III (Ecuador) (Article 22.6-EC), (request by Ecuador), paras. 171–173 and US-1916 Act (EC) (Article 22,6-US), paras. 4.6-4.8, which cites the relevant passages of earlier decisions.

page 437 note 15 US response to question 55.

page 437 note 16 Para. 28 of US comments on Antigua's answers.

page 437 note 17 See below section V.B for a complete analysis of this issue.

page 437 note 18 Recourse by Antigua and Barbuda to Article 22.2 of the DSU, WT/DS285/22, p. 4.

page 437 note 19 Recourse to Article 22.6 of the DSU by the United States,WT/DS285/23.

page 437 note 20 Decision of the Arbitrators EC-Bananas HI (Ecuador) (Article 22.6-EC), EC - Bananas III (US) (Article 22.6-EC)

page 437 note 21 Decision of the Arbitrator EC-Bananas III (Ecuador) (Article 22.6 - EC), para. 50.

page 437 note 22 See Antigua's response to question No. 46 of the Arbitrator.

page 437 note 23 Written submission of Antigua, paras. 13 and 14.

page 438 note 24 US response to question No. 1 of the Arbitrator, para. 1.

page 438 note 25 US response to question No. 1 of the Arbitrator, para. 2.

page 438 note 26 Decision of the Arbitrators US-1916Act (EC) (Article 22.6- US), decision of the Arbitrators para. 3.3; Canada-Aircraft Credits and Guarantees (Article 22.6-Canada), paras. 2.5- 8; decision of the Arbitrators US-FSC (Article 22.6-US), paras. 2.8-11; decision of the Arbitrators Brazil-Aircraft (Article 22.6-Brazil), para. 2.8; EC-Bananas III (ECU) (Article 22.6-EC), paras. 37-41; decision of the arbitrators, EC-Hormones (Canada) (Article 22.6-EC), EC-Hormones (US) (Article 22.6-EC) , para. 9.

page 438 note 27 EC-Hormones (Canada) (Article 22.6-EC), para. 9.

page 438 note 28 Decision of the Arbitrators EC - Hormones (Canada) (Article 22.6-EC), EC-Hormones (US) (Article 22.6-EC), para. 11:“The duty that rests on all parties to produce evidence and to collaborate in presenting evidence to the arbitrators - an issue to be distinguished from the question of who bears the burden of proof—is crucial in Article 22 arbitration proceedings. The EC is required to submit evidence showing that the proposal is not equivalent. However, at the same time and as soon as it can, Canada is required to come forward with evidence explaining how it arrived at its proposal and showing why its proposal is equivalent to the trade impairment it has suffered. Some of the evidence — such as data on trade with third countries, export capabilities and affected exporters — may, indeed, be in the sole possession of Canada, being the party that suffered the trade impairment. This explains why we requested Canada to submit a so-called methodology paper.” (original footnote omitted).

page 438 note 29 Decision of the Arbitrators EC-Bananas III (Ecuador), (Article 22.6-EC) para. 59.

page 438 note 30 The arbitrators in EC-Bananas III (Ecuador), (Article 22.6 -EC) also recognized this and considered that Ecuador “[H]ad to come forward and submit information giving reasons and plausible explanations for its initial consideration of the principles and procedures set forth in Article 22.3 that caused it to request authorization under another sector and Agreement than those where violations were found” (decision of the arbitrators, para. 60).

page 438 note 31 Appellate Body Report on EC - Hormones, footnote 138, in relation to panel proceedings: “The DSU, and in particular its Appendix 3, leave panels a margin of discretion to deal, always in accordance with due process, with specific situations that may arise in a particular case and that are not expressly regulated”.

page 438 note 32 In EC-Hormones (Canada) (Article 22.6-EC), EC-Hormones (US) (Article 22.6-EC) Third-party rights were also requested, but not granted, in two other instances: Brazil - Aircraft, Award of the Arbitrator, paras. 2.4 -2.6; and EC-Bananas III (US) (Article 22.6-EC), Award of the Arbitrator,para. 2.8

page 438 note 33 See the arbitral awards in EC-Hormones (Canada) (Article 22.6- EC), EC-Hormones (US) (Article 22.6-EC), para. 7.

page 438 note 34 Letter to the Arbitrator from Antigua and B arbuda, 21 November 2007.

page 438 note 35 Antigua's Methodology Paper, para. 3.

page 438 note 36 Antigua's Methodology Paper, p. 8.

page 438 note 37 US written submission, para. 14.

page 438 note 38 US written submission, para. 19.

page 438 note 39 US written submission, para. 17.

page 438 note 40 US written submission, para. 15.

page 438 note 41 Antigua's written submission, para. 72.

page 438 note 42 Antigua's written submission, para. 89.

page 438 note 43 Antigua's written submission, para. 71.

page 438 note 44 Antigua's written submission, para. 92.

page 438 note 45 Antigua's written submission, para. 94.

page 438 note 46 US response to question 1 by the arbitrator, para. 4. See below section III.D for a detailed analysis of data and methodology issues.

page 438 note 47 See WT/DS27/ARB, para. 4.1 and WT/DS26/ARB para 3

page 438 note 48 See for example EC - Hormones (Canada), Decision by the arbitrators, para. 35.

page 438 note 49 US written submission, para. 14.

page 438 note 50 See in particular EC-Hormones (Canada), Decision by the Arbitrators, para. 37 and EC-Bananas III (United States), para. 7.1.

page 438 note 51 Antigua's response to question No. 2 by the Arbitrator.

page 438 note 52 Antigua's Methodology Paper, para. 3.

page 438 note 53 US response to questions Nos.3 and 3bis of the Arbitrator.

page 438 note 54 US response to question No. 5 by the Arbitrator, para. 13.

page 438 note 55 US response to question No. 5 of the Arbitrator, para. 12.

page 438 note 56 US response to questions 3 and 3bis of the Arbitrator.

page 438 note 57 US answer to question Iquater of he Arbitrator, para. 10.

page 438 note 58 This issue has been addressed in arbitrations under Article 21.3(c) for the determination of the RPT. See for example Australia - Salmon, Article 21.3(c) arbitration, para. 30. See also Korea-Alcoholic Beverages, Recourse to Article 21.3(c), Decision of the arbitrator, para. 45: “Choosing the means of implementation is, and should be, the prerogative of the implementing Member, as long as the means chosen are consistent with the recommendations and rulings of the DSB andthe provisions of the covered agreements”.

page 438 note 59 We are aware that the determination of the arbitrator in thatcase was made pursuant to Article 25 of the DSU, rather thanpursuant to Article 22.6 of the DSU. Nonetheless, the nature of the determination entrusted by the parties to the arbitrator in that case was comparable to the determination that we are conducting now, namely a determination of the level of nullification or impairment of benefits accruing to a complaining party as a result of measures that had been found to be inconsistent with a covered agreement (in that case, the Trips Agreement).

page 438 note 60 US - Section 110(5) Copyright Act (Article 25), Award of the Arbitrators (Article 25 arbitration), paras. 4.7-4.14.

page 438 note 61 US-Section 110(5) Copyright Act (Article 25), Award of the Arbitrators (Article 25 arbitration), para. 3.33.

page 439 note 62 US-Section 110(5) Copyright Act (Article 25), Award of the Arbitrators, (Article 25 arbitration), para. 3.24, footnote 43.

page 439 note 63 Antigua's response to question No. 6bis of the Arbitrator, p. 12.

page 439 note 64 Antigua's response to question No. 6 by the Arbitrator, p. 9.

page 439 note 65 Antigua's response to question No. 2 of the Arbitrator, p. 4.

page 439 note 66 US written submission, para. 20.

page 439 note 67 US written submission, para. 21.

page 439 note 68 Appellate Body Report, para. 373(C)(ii).

page 439 note 69 Appellate Body Report, para.. 373(D)(vi)(a). In its overall conclusion on Article XIV, the Appellate Body, when noting that the United States had not shown that, in the light of the Interstate Horseracing Act, the prohibitions were applied to both foreign and domestic service suppliers of remote betting services for horse racing, emphasized that “[f]or this reason alone” it found that the United States had not established that these measures satisfied the requirements of the chapeau of Article XIV. See Appellate Body Report, para. 372.

page 439 note 70 We note, in this respect, that the scenarios identified by the parties in these proceedings as possible means of compliance range from a complete opening to a complete closing of the US remote gambling and betting services market. We also note that, while the parties are in disagreement as to the potential consistency of a scenario of partial opening of the market, they both appear to acknowledge that scenarios involving either a complete opening or a complete closing of the market could constitute a form of compliance with the recommendations and rulings in this case.

page 439 note 71 US response to question No. 3bis by the Arbitrator, para5.

page 439 note 72 US written submission, para. 20.

page 439 note 73 Appellate Body Report, para. 373 (emphasis added).

page 439 note 74 Preamble of the GATS, fourth paragraph.

page 439 note 75 Para. 373(D)(iii)(c)

page 439 note 76 Argentina-Hides and leather, Article 21.3(c), Award of the arbitrator, para. 41.

page 439 note 77 Antigua's response to Question 2ter of the Arbitrator, p. 6(“Although the total prohibition by the United States of all remote gambling and betting services would not be expressly compliant with the DSB rulings, Antigua believes that it may well constitute de facto compliance, consistent with the approach of the compliance panel in the US - Shrimp dispute.”)

page 439 note 78 US-Gambling, compliance panel report, para. 6.21.

page 439 note 79 Award of the Arbitrator under Article 21.3(c), paras. 46-47.

page 439 note 80 US written submission, para. 15.

page 439 note 81 See footnote 77.

page 439 note 82 US written submission, para. 21.

page 439 note 83 US written submission, para. 23.

page 439 note 84 Antigua's response to question No. 2ter of the Arbitrator, p. 6.

page 439 note 85 Antigua's response to question No. 2ter of the Arbitrator, p. 6.

page 439 note 86 Report of the Appellate Body, para. 372.

page 439 note 87 Award of the Arbitrator under Article 21.3(c), paras. 46-47.

page 439 note 88 US written submission, para. 20.

page 439 note 89 US - Gambling, compliance panel report, para. 6.29 (original footnotes omitted).

page 439 note 90 See the developments on intrastate commerce, Compliance Panel Report, at paras. 6.118 to 6.123.

page 439 note 91 Antigua's Methodology Paper, pages 3-6; Antigua's written submission, paras. 33-36 and 72-94.

page 439 note 92 Antigua Methodology Paper, Exhibit AB-1.

page 439 note 93 Antigua's written submission, para. 112.

page 439 note 94 Antigua Methodology Paper, Exhibit AB-1.

page 439 note 95 Antigua's Methodology Paper, page 3; and Antigua's written submission, para. 112.

page 439 note 96 Antigua's Methodology Paper, pages 8-9.

page 439 note 97 Antigua's Methodology Paper, pages 6-9, Exhibit AB-3.

page 439 note 98 Antigua's Methodology Paper, pages 9-10, Exhibit AB-4.

page 439 note 99 Antigua's Methodology Paper, pages 10-11, Exhibit AB-5.

page 439 note 100 US response to question 1 by the Arbitrator, para. 4.

page 439 note 101 US written submission, paras. 28-29.

page 439 note 102 US written submission, paras. 28-29.

page 439 note 103 Antigua's written submission, paras. 45-46 and Exhibits AB-1 and AB-2.

page 439 note 104 Antigua responses to questions by the Arbitrators, Exhibits AB-14, AB-14(1) and AB-14(2).

page 439 note 105 US comments on Antigua responses to questions by the Arbitrator, para. 9.

page 439 note 106 US response to question 36 by the Arbitrator, para. 45.

page 439 note 107 US comments on Antigua responses to questions by the Arbitrator, paras. 11-12.

page 439 note 108 US comments on Antigua responses to questions by the Arbitrator, para. 19.

page 439 note 109 US response to question 36 by the Arbitrator, para. 48.

page 439 note 110 US comments on Antigua responses to questions by the Arbitrator, paras. 14-15.

page 439 note 111 US comments on Antigua responses to questions by the Arbitrator, para. 10.

page 439 note 112 Antigua response to question 26(b) by the Arbitrator, page 26.

page 439 note 113 Antigua response to question 26(f) by the Arbitrator, page 26. The fact that country information existed in a database maintained by GBGC from where specific data was extracted upon request was clarified by Antigua in the oral hearing of 18 October 2007.

page 439 note 114 Antigua response to question 26(e) by the Arbitrator, pages 25-26 and Exhibit AB-14.

page 439 note 115 Antigua comments on answers by the US, page 24-25.

page 440 note 116 Antigua response to question 26(a) by the Arbitrator, page 25 and Exhibit AB-14(4); and Antigua comments on answers by the US, pages 5-7 and 23.

page 440 note 117 Antigua response to question 26(d) by the Arbitrator, page 25.

page 440 note 118 Antigua comments on responses by the US to questions 35 and 36 by the Arbitrator: pages 25-27.

page 440 note 119 We also do not consider it appropriate to speak of a data inconsistency if the sum of country data in one release of the GBGC Report exceeds the corresponding regional aggregate in another release, but not in the same release.

page 440 note 120 US response to question No. 36 by the Arbitrator: para. 43.

page 440 note 121 US comment on Antigua response to questions Nos. 38, 39 and 40 by the Arbitrator, para. 60.

page 440 note 122 US written submission, para. 41; and US response to question No. 36 by the Arbitrator, para. 44. In other words, the data may include revenues from exports of remote gambling services to destinations other than the US and, possibly domestic revenues.

page 440 note 123 US response to question No. 36 by the Arbitrator, para. 45.

page 440 note 124 US response to question No. 11 by the Arbitrator, para. 18.

page 440 note 125 US response to question No. 35 by the Arbitrator, para. 38.

page 440 note 126 US comments on Antigua responses to questions by the Arbitrator, para. 17.

page 440 note 127 US response to question 11 by the Arbitrator, para. 18.

page 440 note 128 Antigua's written submission: para. 106, as paraphrased by the US in US response to question No. 11 by the Arbitrator, para. 18.

page 440 note 129 US response to question No. 36 by the Arbitrator: para. 43.

page 440 note 130 Antigua response to question 14 by the Arbitrator, page 17,Exhibit AB-14 and Exhibit AB-17.

page 440 note 131 Antigua response to question 26(e) by the Arbitrator, pages 25-26 and Exhibit AB-14.

page 440 note 132 Antigua comments on answers by the US, pages 13-14.

page 440 note 133 Antigua comments on US response to question 36 by the Arbitrator, page 25.

page 440 note 134 US response to question No. 36 by the Arbitrator, paras. 49-51.

page 440 note 135 US written submission, paras 30 and 38.

page 440 note 136 US written submission, paras. 31-32 and 36-37 and Exhibit US-2.

page 440 note 137 US written submission, paras. 33-35.

page 440 note 138 US response to question No. 33 by the Arbitrator, para. 33.

page 440 note 139 US response to question No. 33 by the Arbitrator, para. 34; and US comment on Antigua response to questions Nos. 38, 39 and 40 by the Arbitrator, para. 59.

page 440 note 140 US response to question No. 33 by the Arbitrator, par. 34.

page 440 note 141 US response to question No. 36 by the Arbitrator, para. 53.

page 440 note 142 US comment on Antigua response to questions Nos. 38, 39 and 40 by the Arbitrator, paras. 61-62.

page 440 note 143 US response to question No. 36 by the Arbitrator, para. 53.

page 440 note 144 US comment on Antigua response to question No. 37 by the Arbitrator, para. 57.

page 440 note 145 Antigua's written submission, para. 105.

page 440 note 146 Antigua's written submission, para. 102; Exhibit AB-11.

page 440 note 147 Antigua's written submission, para. 102; Exhibit AB-12: More precisely, the letter by ECCB states that “the Statistics Act of Antigua and Barbuda cannot enforce an obligation on these entities to provide data”. Earlier, Antigua explained in its Methodology Paper, based on a telephone discussion with ECCB staff, that there had been “a low response rate by remote gaming operators to GDP-related surveys” and the few that had responded to the GDP-related surveys “have not often reported a key component of GDP - profits” (footnote 5 to the Methodology Paper).

page 440 note 148 Antigua comments on responses by the US, pages 19-20.

page 440 note 149 Antigua comments on answers by the US, page 20.

page 440 note 150 Antigua written submission: para. 106; and Antigua comments on answers by the US, pages 20-21.

page 440 note 151 Antigua comments on answers by the US, pages 20-21.

page 440 note 152 Antigua response to question 46(b) by the Arbitrator, page 38.

page 440 note 153 We do not see much merit in the calculations performed by Antigua that increase both its exports and GDP by the claimed revenues from remote gambling. While it is true that it would be incorrect to adjust exports by this figure, but leave GDP unchanged indeed it is affected, this is exactly what Antigua argues is not the case, since most of its revenues are counterbalanced by imports or expatriated profits, as will be further discussed below.

page 440 note 154 While the United States, in its comments on the IMF letter sees this point as a confirmation that in Antigua's official economic statistics for its commercial bank transactions there are nowhere any levels of financial deposits approaching the billions of dollars of revenue claimed by Antigua, Antigua, commenting on the IMF letter, emphasizes that commercial banks in Antigua are not and have not been used by the remote gaming industry for gaming transactions.

page 440 note 155 US response to question No. 1 by the Arbitrator, para. 3.

page 440 note 156 US comments on Antigua responses to questions by the Arbitrator, paras. 22-23; and Antigua response to question No. 28 by the Arbitrator, pages 27-28.

page 440 note 157 US comments on Antigua responses to questions by the Arbitrator, paras. 22-23.

page 440 note 158 Antigua response to question No. 28 by the Arbitrator, pages 27-28.

page 440 note 159 Antigua response to question No. 27 by the Arbitrator, pages 26-27.

page 440 note 160 Antigua written submission: Exhibit AB-10.

page 440 note 161 Antigua comments on answers by the United States, pages 3-7.

page 440 note 162 Antigua's written submission, paras. 95-98.

page 440 note 163 Antigua response to question No. 24 by the Arbitrator, pages 19-20.

page 441 note 164 Antigua response to question No. 25 by the Arbitrator, pages 23-25 and Exhibits AB-14(1) and AB-14(2). Antigua also holds that US demand for remote gambling services, in particular in regard to sports betting, is “astronomical”, providing, besides the GBGC estimates, further expert opinions as to its potential. Antigua response to question No. 45(a) by the Arbitrator, pages 35-37.

page 441 note 165 Antigua response to questions Nos. 22 and 30 by the Arbitrator, pages 19, 28-29 and Exhibit AB-17.

page 441 note 166 Antigua response to question No. 30 by the Arbitrator, pages 28-29.

page 441 note 167 Antigua response to question No. 21 by the Arbitrator, pages 18-19.

page 441 note 168 Antigua comments on answers by the United States, pages 6-7.

page 441 note 169 Antigua comments on answers by the United States, page 22;and Antigua responses to questions, Exhibit AB-17.

page 441 note 170 US comment on Antigua response to question No. 24 by the Arbitrator: paras. 55-56.

page 441 note 171 US response to questions Nos. 1 and 24 by the Arbitrator, paras. 3 and 30.

page 441 note 172 US response to question No. 24 by the Arbitrator, para. 31.

page 441 note 173 However, the US acknowledges that total annual revenue data of publicly listed gambling operators based in the UK is available on those companies’ websites, but says it is not aware of a source of data for employment figures, or for a breakdown by activity or country. US answer to question No. 22 by the Arbitrator, para. 24.

page 441 note 174 US comments on Antigua response to question No. 22 by the Arbitrator, paras. 51-53.

page 441 note 175 US comments on Antigua responses to questions by the Arbitrator, paras. 24-25.

page 441 note 176 US comments on Antigua response to question No. 21 by the Arbitrator, para. 50.

page 441 note 177 Antigua response to question No. 28 by the Arbitrator, pages 27-28.

page 441 note 178 US comments on Antigua responses to questions by the Arbitrator, paras. 24-25.

page 441 note 179 US comments on Antigua response to question No. 46 by the Arbitrator, paras. 65-66.

page 441 note 180 US written submission, para. 45.

page 441 note 181 US written submission, para. 45.

page 441 note 182 Antigua's Methodology Paper, pages 8-9.

page 441 note 183 Antigua's written submission, para. 122.

page 441 note 184 Antigua's written submission, para. 123-124.

page 441 note 185 Antigua response to question No. 46(a) by the Arbitrator, pages 37-38.

page 441 note 186 US written submission, para. 47.

page 441 note 187 US written submission, para. 48.

page 441 note 188 US written submission, paras. 42-43.

page 441 note 189 US response to question No. 42 by the Arbitrator, paras. 55-56.

page 441 note 190 US response to question No. 45 by the Arbitrator, para. 57.

page 441 note 191 US response to question No. 42 by the Arbitrator, paras. 55-56, making reference to Antigua's written submission: Exhibit AB-13, page 1.

page 441 note 192 US written submission, para. 42; and US response to question No. 48 by the Arbitrator: para. 59.

page 441 note 193 US written submission, para. 42.

page 441 note 194 Antigua's Methodology Paper, page 3.

page 441 note 195 US written submission, para. 43.

page 441 note 196 US written submission, para. 43.

page 441 note 197 US written submission, paras. 42-43.

page 441 note 198 US written submission: para. 44.

page 441 note 199 US response to question 23 by the Arbitrator, para. 25.

page 441 note 200 Antigua written submission: Exhibit 2; and Antigua Methodology Paper: Exhibit AB-9.

page 441 note 201 US response to questions Nos. 23 and 36 by the Arbitrator, paras. 27 and 47.

page 441 note 202 US response to question No. 23 by the Arbitrator, para. 28.

page 441 note 203 US comments on Antigua responses to questions by the Arbitrator, paras. 20-21.

page 441 note 204 Antigua written submission, para. 115.

page 441 note 205 Antigua written submission, Exhibit 2.

page 441 note 206 US response to question No. 23 by the Arbitrator, para. 29.

page 441 note 207 Antigua's Methodology Paper, pages 2-3.

page 441 note 208 Antigua response to question No. 42 by the Arbitrator, page 33.

page 441 note 209 Antigua response to the question No. 43 by the Arbitrator, pages 33-34.

page 441 note 210 Antigua's written submission, paras. 117-119; and Antigua comments on responses by the United States, page 16-17.

page 441 note 211 Antigua response to questions Nos. 43 and 44 by the Arbitrator, pages 33-35; and Antigua comments on responses by the US, page 16-17.

page 441 note 212 Antigua's written submission, Exhibit AB-13.

page 441 note 213 Antigua's written submission, para. 114.

page 441 note 214 Antigua's written submission, paras. 115-116.

page 441 note 215 Antigua's written submission, paras. 120-121.

page 441 note 216 Antigua methodology paper, pages 2-3; and Antigua response to question No. 44 by the Arbitrator, pages 34-35.

page 441 note 217 Antigua response to question No. 44 by the Arbitrator, pages 34-35.

page 441 note 218 US written submission, paras. 47-48.

page 441 note 219 As noted in paragraph 3.73 in the separate opinion of one of the arbitrators, the issue of potential domestic competition would need to be taken into account if the counterfactual proposed by Antigua was followed. Therefore, if the level of nullification or impairment were to be calculated under the counterfactual proposed by Antigua, the Arbitrator notes that further adjustments would need to be made in that regard, in addition to the ones we undertake below in section III.D.3 to reflect foreign competition and domestic demand.

page 442 note 220 Antigua response to question No. 10 by the Arbitrator, page 15.

page 442 note 221 US written submission, para. 14; Antigua's Methodology Paper, page 3.

page 442 note 222 US written submission, para. 14; Antigua's methodology paper, page 6.

page 442 note 223 US response to question No. 41 by the Arbitrator, para. 54.

page 442 note 224 Antigua's Methodology Paper, page 8.

page 442 note 225 US written submission, para. 14.

page 442 note 226 Antigua response to question No. 41 by the Arbitrator, page 33.

page 442 note 227 Antigua response to question No. 47 by the Arbitrator, pages 38-39.

page 442 note 228 US written submission, para. 19.

page 442 note 229 US written submission, para. 15.

page 442 note 230 US written submission, paras. 15 and 17.

page 442 note 231 US written submission, para. 19, emphasis added.

page 442 note 232 US written submission, para 49.

page 442 note 233 To further shore up that number the US notes that Antigua, in its recourse to Article 22.2, had stated that its “gambling and betting services sector accounted for more than ten percent of the gross domestic product of Antigua and Barbuda” and that this Share, on the basis of ECCB GDP information, resulted in gambling service exports to the entire world in 2001 of US$ 68 million (US written submission, para. 50). This calculation appears to again confuse exports with GDP as a value added concept.

page 442 note 234 US written submission, paras. 25 and 51; Exhibit US-1.

page 442 note 235 Antigua's MP: Exhibit AB-2.

page 442 note 236 US written submission, para 53.

page 442 note 237 Antigua written submission, para. 71.

page 442 note 238 Antigua's written submission, paras. 77-94.

page 442 note 239 Antigua comments on answers by the US, page 15.

page 442 note 240 Antigua response to question No. lOby the Arbitrator, page 15.

page 442 note 241 Antigua response to questions Nos. 15 and 18 by the Arbitrator, pages 15-16.

page 442 note 242 Antigua response to questions Nos. 15 and 18 by the Arbitrator, pages 15-16.

page 442 note 243 Antigua response to question No. 24 by the Arbitrator, pages 20-23.

page 442 note 244 US written submission, Exhibit US-1.

page 442 note 245 Antigua response to question No. 25 by the Arbitrator, pages 23-25 and Exhibits AB-14(1) and AB-14(2).

page 442 note 246 Antigua response to questions by the Arbitrator, Exhibits AB-14(1) and AB-14(2).

page 442 note 247 US response to question No. 16 by the Arbitrator, para. 22.

page 442 note 248 US response to question No. 17 by the Arbitrator, para. 23.

page 442 note 249 US comment on Antigua response to question No. 10 by the Arbitrator, para. 47.

page 442 note 250 Antigua response to question No. 15bythe Arbitrator, page 17.

page 442 note 251 US comment on Antigua response to question No. 15 by the Arbitrator, para. 48.

page 442 note 252 US response to question No. 36 by the Arbitrator, para. 44.

page 442 note 253 Antigua's written submission, para. 102; Exhibit AB-11.

page 442 note 254 Antigua comments on answers by the US, page 23; and Antigua's written submission, para. 102; Exhibit AB-12. Moreprecisely, the letter by ECCB states that “the Statistics Act of Antigua and Barbuda cannot enforce an obligation on these entities to provide data”. Earlier, Antigua has already explained in its Methodology Paper, based on a telephone discussion with ECCB staff, that there had been “a low response rate by remote gaming operators to GDP-related surveys” and the few that had responded to the GDP-related surveys “have not often reported a key component of GDP - profits” (footnote 5 to the Methodology Paper). Antigua methodology paper, page 2, footnote 5.

page 442 note 255 Antigua response the question No. 39 by the Arbitrator, page 32.

page 442 note 256 Antigua response the question No. 38 by the Arbitrator, page 32.

page 442 note 257 Antigua comments on answers.by the US, page 25.

page 442 note 258 US response to question No. 35 by the Arbitrator, para. 39; and US comments on Antigua responses to questions by the Arbitrator, paras. 31-32.

page 442 note 259 Antigua's written submission, Exhibit AB-12.

page 442 note 260 US response to question No. 36 by the Arbitrator, para. 52.

page 442 note 261 US response to question No. 36 by the Arbitrator, para. 52;and US comment on Antigua response to question 39 by theArbitrator, para. 59.

page 442 note 262 US response to question No. 34 by the Arbitrator,para. 36.See also the discussion above in section III.D.l(d)(i).

page 442 note 263 US response to question No. 33 by the Arbitrator, para. 35.

page 442 note 264 US response to question No. 35 by the Arbitrator, para. 41.

page 442 note 265 Document WT/TPR/S/190/ATG, 1 October 2007

page 442 note 266 US remarks at the oral hearing on 18 October 2007.

page 442 note 267 Antigua response to question No. 37 by the Arbitrator, pages 30-31.

page 442 note 268 Antigua comments on US response to question No. 35 by the Arbitrator, page 22.

page 442 note 269 Antigua response to questions Nos. 28 and 31 by the Arbitrator, pages 28-30.

page 442 note 270 Antigua Methodology Paper, pages 2-3; and Antigua response to question 44 by the Arbitrator, pages 34-35.

page 443 note 271 US response to question No. 23 by the Arbitrator, para. 29.

page 443 note 272 Antigua responses to questions by the Arbitrator, Exhibits AB-14(1) and AB-14(2).

page 443 note 273 See Annex E, Annex Table 1.

page 443 note 274 Antigua response to question No. 21 by the Arbitrator, pages 18-19 and Exhibit AB-17.

page 443 note 275 See Annex E, Annex Table 2.

page 443 note 276 See Annex E, Annex Table 3.

page 443 note 277 See Annex E, Annex Table 4.

page 443 note 278 See Annex E, Annex Table 5.

page 443 note 279 US written submission, paras. 56 and 57.

page 443 note 280 Antigua's written submission, para. 39.

page 443 note 281 Antigua's written submission para.48.

page 443 note 282 Decision by the arbitrators, EC-Bananas II, (request by Ecuador), para. 50.

page 443 note 283 Decision by the arbitrators, EC-Bananas III, (request by Ecuador), para. 52.

page 443 note 284 Decision by the arbitrators, EC-Bananas III, (request by Ecuador), para. 55.

page 443 note 285 Decision by the arbitrators, EC-Bananas III, (request by Ecuador), para. 55.

page 443 note 286 Antigua's written submission, paras. 16 to 21.

page 443 note 287 We take note of the fact that Antigua has modified its assessment of the practicability or effectiveness of suspending concessions or other obligations under the GATS in the course of its proceedings, in that it no longer considers, as it had suggested in its request for authorization to suspend, that it “may” suspend concessions or other obligations in telecommunications services. For the purposes of our assessment, we consider Antigua's determinations as clarified in the course of the proceeding, that is, its determination that it is not practicable or effective to suspend concessions or other obligations in any sector under the GATS.

page 443 note 288 Antigua's written submission, para. 48.

page 443 note 289 EC-Bananas III (Ecuador) (Article 22.6-EC), para.70.

page 443 note 290 EC-Bananas III (Ecuador) (Article 22.6-EC), para. 72.

page 443 note 291 EC-Bananas III (Ecuador) (Article 22.6-EC), para. 74.

page 443 note 292 EC-Bananas III (Ecuador) (Article 22.6-EC), para. 79.

page 443 note 293 EC-Bananas III (Ecuador) (Article 22.6-EC), paras. 85-86.

page 443 note 294 Antigua's response to question No. 47 of the Arbitrator.

page 443 note 295 Recourse by Antigua to Article 22.2 of the DSU, WT/DS285/22.

page 443 note 296 US written submission, para. 59.

page 443 note 297 US written submission, para. 59.

page 443 note 298 Antigua's written submission, para. 50.

page 443 note 299 Antigua's written submission, para. 51.

page 443 note 300 Antigua's response to question No. 48 of the Arbitrator.

page 443 note 301 US written submission, para. 60.

page 443 note 302 Antigua's written submission, para. 48.

page 443 note 303 Antigua's written submission, para. 49 (the bracketed text in the quotation is a footnote in the original text).

page 443 note 304 US written submission, para. 61.

page 443 note 305 Antigua draws support for this assumption from the arbitral decision in the EC-Bananas III (Ecuador) case, where the arbitrators considered it “obvious” that “suspension of commitments in service sub-sectors or in respect of modes of service supply which a particular complaining party has not bound in its GATS Schedule is not available for application in practice and thus cannot be considered as practicable EC-Bananas III (Ecuador), Decision by the Arbitrators, para. 71”. The arbitrator in that case further considered that it was “evident” for it “that Ecuador cannot suspend commitments or other obligations in sub-sectors of the distribution service sector in respect of which it has not entered into specific commitments in the first place EC-Bananas III (Ecuador), Decision by the Arbitrators, para. 103 in fine. However, as we have observed above, the text of Article 22.3 of the DSU refers to “concessions and other obligations” (emphasis added) within the relevant sector, rather than simply “concessions”. Therefore, the scope of the relevant obligations is not limited, in our view, to specific commitments bound in Antigua's GATS schedule.

page 443 note 306 Antigua's written submission, para. 51.

page 443 note 307 US written submission, para. 59: “the issue is not whether Antigua has made any commitments in sub-sector 10.D, but rather whether Antigua has made any commitments in all of sector 10”.

page 443 note 308 We also note that Antigua's request for authorization to suspend concessions actually referred only to Sector 10.D and appeared to assume that this was the “sector” to be considered. Antigua subsequently acknowledged the relevance of the entirety of Sector 10 (although it then limited its enquiry, within Sector 10, to sub-sector 10.A, where it has made a commitment).

page 443 note 309 Antigua's response to question No. 48 by the Arbitrator.

page 443 note 310 Antigua's response to question No. 49 by the Arbitrator.

page 443 note 311 Antigua's response to question 48 by the Arbitrator.

page 443 note 312 See above our determinations in paras. 4.41-4.45.

page 443 note 313 Antigua's written submission, para. 48.

page 443 note 314 US written submission, para. 61.

page 443 note 315 Antigua's written submission, para. 48.

page 443 note 316 US response to question 51 of the Arbitrator, para. 67.

page 443 note 317 See US Exhibit US-2. IMF Balance of Payments country table, Antigua and Barbuda.

page 443 note 318 See US CIA, The World Factbook 2007, at <https://www.cia.gov/library/publications/the-world-factbook/docs/notesanddefs.html#2087.>

page 443 note 319 Recourse by Antigua to Article 22.6 of the DSU, WT/DS285/22. No source is cited for this assertion.

page 443 note 320 See US written submission, para. 60, footnote 39.

page 444 note 321 Recourse to Article 22.2 by Antigua, WT/DS285/22.

page 444 note 322 EC-Bananas III (Ecuador) (Article 22.6-EC), para. 73.

page 444 note 323 EC-Bananas III (Ecuador) (Article 22.6-EC), para. 73.

page 444 note 324 Antigua's written submission, para. 53.

page 444 note 325 Antigua's written submission, para. 52.

page 444 note 326 US written submission, para. 60.

page 444 note 327 US written submission, para. 60.

page 444 note 328 See Antigua's oral statement, para. 37: “the United States apparently suggests that we prohibit American entertainers from offering services to consumers in Antigua, that we ban American tourists from visiting our resorts and that we prohibit American vessels and aircraft from bringing goods and holiday-makers to our tiny island. It should not require any deep economic analysis to see the futility of these suggestions”. The Arbitrator notes that “ban[ning] American tourists from visiting [Antigua's] resorts” would not constitute a relevant form of retaliation under the GATS for Antigua.

page 444 note 329 US response to question 69 of the Arbitrator.

page 444 note 330 Antigua's written submission, para. 55.

page 444 note 331 Antigua's written submission, para. 58.

page 444 note 332 Antigua's written submission, para. 64.

page 444 note 333 US declaration in response to oral question by the Arbitrator at the meeting with the parties.

page 444 note 334 Para. 63 of the US written submission.

page 444 note 335 US response to question 55.

page 444 note 336 Para. 28 of US comments on Antigua's responses.

page 444 note 337 Ibid., paras. 29-30.

page 444 note 338 Paras. 127-128 of Antigua's written submission.

page 444 note 339 Antigua's responses to questions Nos. 55 and 56.

page 444 note 340 Para. 78 of Antigua's comments on US responses.

page 444 note 341 See Article 22.7 of the DSU (“The arbitrator acting pursuant to paragraph 6 shall not review the nature of the concessions or other obligations to be suspended…”).

page 444 note 342 This is illustrated well by the explanations provided by Ecuador in the EC- Bananas III (Ecuador) (Article 22.6- EC) case as to how it proposed to implement the proposed suspension of Trips obligations, including through the setting up of specific government-run schemes.

page 444 note 343 EC-Bananas III (Ecuador) (Article 22.6-EC), section V (paras. 139 to 165).

page 444 note 344 EC-Hormones (US) (Article 22.6-EC), para. 82.

page 444 note 345 US-1916 Act (EC) (Article 22.6-US), para.9.2.

page 444 note 346 US - Byrd Amendment (Article 22.6-EC), para. 4.27.