Interview with Mark Mendel, Legal Advisor to Antigua and Barbuda
by Jana Sedlakova
Over recent years the interest of operators in the Antigua and Barbuda WTO case against the US has worn off. It is clear that a treaty is enforceable when there is the will to do so but it is quite a different scenario when one of the governing parties lacks the will or motivation. Similar claims can be made when it comes to the interpretation of the single internal market in the European Union with reference to free movement of goods and services.
Whether there are any parallels with the EU failing to release their grip on state monopolies, Mark Mendel, Antigua’s lead attorney said “well with us [Antigua], there is a legal distinction in that WTO law is clear that we are entitled to offer these services in America, whereas EU law is a bit more opaque. But in either case you have the fundamental problem of the “carry over” perception of gaming as either a vice or a state monopoly, whereas electronic and cross-border trade, as well as developing and changing sensibilities, have placed gaming squarely within the bounds of entertainment. The failure (or refusal) of a lot of states to recognise this fact is the primary reason why gaming continues to be accorded this ambiguous and dichotomous treatment from a lot of jurisdictions.”
“The main reason for the ‘toothlessness’ is the economic and political disparities between the countries, and the fact that the larger countries can effectively take the weapons out of the hands of the smaller ones through parallel-track intimidation and uncertainty. There have been a number of suggestions, such as allowing countries to “trade” concessions granted in the nature of sanctions, but I think the simplest thing would be to authorise immediate monetization of sanctions, so that rather than having to identify sectors in which to retaliate and jump through all of those hoops, the non-compliant country would immediately owe the other country an amount of money, and it would be due without diminution. If all countries agreed to that in a treaty amendment, then it would be an enforceable financial obligation. That being said, it will never happen.”
As industry counterparties watch the US market situation, Ciaran O’Brien at Ladbrokes stated that whilst “we don’t have any association with Antigua … we would however hope that over the coming years the draconian anti-gambling laws, such as those that apply in the US, are reviewed to enable consumers to access licensed, regulated services”.
An interesting twist in the story occurred when Antigua did not attend the 24th May WTO meeting. Antigua has requested the WTO to have this item on the agenda to be discussed on a monthly basis and then pulled out. Nufrat Nazeer at the WTO has confirmed that the item was not discussed at the meeting on 24th May. Does this mean that Antigua is now considering an exit from the battle? Or is this yet another stalling tactic taken by Antigua? Mendel explained that “the government felt that the point had been made for now and there wasn’t any further benefit in saying it again”.
As for the implications for the principle of fair trade, in particular the prosecution of offshore operators permitted to transact under WTO rulings, Mendel commented: “I think this is probably the worst thing about our situation, and I am not sure too many WTO members really understand this. It is a horribly egregious act that if a small country did a similar thing to the Americans it would not be tolerated. We don’t really have the resources at this point in time to raise the profile of the case enough to make other WTO members aware of just how bad the situation is. What is even worse is that even as we were working hard, spending hours and thousands on working out a settlement with the US, they proceeded to indict Antiguan operators. Really awful.”
Mendel is hopeful that Antigua can attain all what is now due provided it opts for the authorised options; and also that a satisfactory outcome will be reached within the next 6 months.