In earlier posts on the Gambling arbitration, I focused on the figures involved, but there is an underlying interpretive issue that is very interesting which, as far as I know, has not been addressed before. Antigua argues that the amount of nullification or impairment should be based on the failure of the U.S. to provide market access for gambling and betting services, pursuant to GATS Article XVI and the U.S. commitments. In response, the U.S. says that the nullification or impairment should not be based solely on the Article XVI violation, but rather should take into account the U.S. defense under GATS Article XIV. Because this defense failed only on the basis of discrimination relating to betting on horseracing, the U.S. contends, it is only this horseracing discrimination that should be taken into account. (See paras. 13-26 of the U.S. oral statement to the Arbitrator, the most recent document to be posted).
So, the question is, should nullification or impairment be determined based on the violation or on the failed defense?
