The Article 21.5 compliance dispute in the Gambling case has now begun. Antigua's consultations request is available here.
According to the U.S., it has implemented properly. As stated in the U.S. status report on the case:
On 5 April 2006, the US Department of Justice confirmed the position of the US Government regarding remote gambling on horse racing in testimony before a subcommittee of the US House of Representatives. The Department of Justice stated that:
The Department of Justice views the existing criminal statutes as prohibiting the interstate transmission of bets or wagers, including wagers on horse races. The Department is currently undertaking a civil investigation relating to a potential violation of law regarding this activity. We have previously stated that we do not believe that the Interstate Horse Racing Act, 15 U.S.C. §§ 3001-3007, amended the existing criminal statutes.
In view of these circumstances, the United States is in compliance with the recommendations and rulings of the DSB in this dispute.
The testimony in question is, I believe, found here, and is from Bruce Ohr, the Chief of the DOJ's Organized Crime and Racketeering Section, Criminal Division.
Antigua, of course, sees things differently. In its consultations request, Antigua argues:
The DOJ Statement is, however, nothing more that a restatement of the position taken by the United States during the course of DS285 that was ultimately found unpersuasive by both the panel and the Appellate Body. Assuming, arguendo, that a statement by an unidentified government employee can constitute a "measure" for purposes of the DSU, Antigua and Barbuda does not believe that a simple restatement of a legal position taken by a party to a dispute during its regular course can be considered a "measure taken to comply with the recommendations and rulings" of the DSB within the meaning of Article 21.5 of the DSU.
Putting aside the substantive question of whether the U.S. is in compliance, which could depend on factual issues such as whether DOJ has enforced the law in a non-discriminatory manner, the question of whether any measure has been taken to comply is an interesting one. Is the "view" of the Department of Justice a measure that has been taken? Is the U.S. just re-arguing the evidence in the original dispute, or is there something new here? Is a court decision, or some other formal action, supporting this "view" required before any measure can be said to exist? Odds are that these issues will be hotly contested in the proceedings.
