back to article Antigua attorney speaks out on landmark WTO case

With the recent news that the Conference of the Caribbean Community (CARICOM) has joined the EU, Japan, and India in supporting tiny Antigua in its WTO case against the US regarding the cross-border provision of gambling services, we thought the time was right to finish our interview with Mark Mendel, lead counsel for Antigua in …


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  1. Anonymous Coward
    Anonymous Coward

    Anyone Surprised?

    because I'm not.

    Without a doubt and as we’ve seen since the inception of this current US administration they only have one rule and that is our way or no way; this is the fundamental tenet they follow and nothing else.

    It’s about time the leaders of the world stop praising the great US of A for being mighty and powerful and fantastic and start pointing out what they really are; a big bully in the playground of globalisation, picking on whoever they feel whenever they feel.

    Let them withdraw from the WTO and when they’ve done that let’s finish it off by putting a huge fence around them to contain the global blight they represent.

    And before anyone jumps to conclusions as to where I'm coming from I'm white and agnostic.

  2. Steve

    USA Violating international law and treaty agreements, suprise!

    When do we start the process of regime change by massive bombing then ?

    Isn't that how it works ? Or is that just for Non US countries ?

    Stupid yanks, uphold the rules you expect everyone else to follow or suffer the consequences.

  3. Daren Nestor

    Good interview

    The chap makes some good points, and sounds genuinely bewildered by the strange actions of the US in this case.

    This makes absolutely no sense from the American perspective. Why have they landed on this one issue? All the other "large" signatories to the GATS are delighted - Canada and the EU in particular have long running trade disputes over American "protectionism". Both of those will not hesitate in putting a public boot in if they think they can get away with it, and at this rate, they WILL be able to get away with it.

    It's also the case that a new administration coming in won't be in as strong a position from the beginning and will almost have to compromise. Will this weaken them domestically?

  4. D. Lester

    Interstate Gaming IS Allowed in the U. S.

    Absurd! The U.S.T.R. / DoJ position that interstate wagering is not allowed in the U.S.

    1. Barrack Obama ran a ‘lottery’ fund-raiser; all who donated to his campaign during a specified period were entered into a contest (4 winners) to have dinner with him. There was no free entry, ONLY by paying a donation could you enter.

    2. Deal or No Deal, NBC. Here I can pay a .99 text message fee per selection to select a suitcase that may / may not contain $10,000.00. I can enter up to 10 times per show. NOTE: There is a free option and a pay option.

    Are these a stretch, yes? Are these examples of INTERSTATE REMOTE GAMBLIING?

    YES in any sense of the word. After all, gambling is the risking of something of value to win a prize / cash. Both of these examples meet those criteria.

    These are but two examples. There are many more, one needs only to look.

  5. heystoopid

    Most Interesting!

    Most interesting , US is also punishing it largest export customer Canada as well , even though it's version of the so called NAFTA does not include the 1998 DMCA sub clause , and it is fully compliant in all aspects of the the agreement as signed!

    In spite of the amount of funds the Canadians are paying , the ever voracious and greedy multimedia industries south of the border want double what they are receiving and continue to make extraordinary and unproven claims , and are not adverse to paying direct bribes to Canadian Crown Ministers to sponsor new draconian control legislation as well!

    The problem with the music industry of today is summed up neatly in a June 2007 Rolling Stone Feature Article !

    The times they are a changing , and like King Canute of old not even the greedy big 4 in the industry can hold back the tides of change for much longer at current rate the existing industry model is dying at!

    What price a choice, it could be very deadly indeed should the misguided easily bribed politicians chose the wrong path!

  6. Will Leamon

    The Times

    The problem here is the domestic U.S. citizen. Over the past 15 years many states have implemented state run lotteries to fund education. Since then almost everyone has become sick of the effects. You should see the lotto stands on welfare check day. It really is depressing.

    So we now have senators getting angry letters about interstate and foreign gambling. What's happening is the states are defending their gambling revenues monopoly. Meanwhile hypocrites who signed up for state lotteries assuage their guilty consciences by attacking far away resources.

    It boils down to this. The 'people' of the US (those who could be bollocked to participate in the process of government) want gambling to lower their tax bills nothing more.

    This explains our gambling stance quite nicely:

  7. Eduard Coli

    US bashing at its best!!!

    If anything does this demonstrates why the US needs to be out of the WTO now!

    The WTO does not benefit most of those living in the US, the WTO in unconstitutional in the US and the WTO has been corrupted into nothing but a I hate the US club.

    How come these articles always seem to miss the rampant credit card fraud with no recourse due to local law that was taking place with offshore online gambling before the ban, funny that?


  8. Morely Dotes

    Misdirection? Or remote direction?

    @ Will Leamon: "So we now have senators getting angry letters about interstate and foreign gambling."

    Doubtful. Oh, perhaps they're getting angry letters from Southern Baptist preachers whose weekly "offering" revenues have declined, but even someone as stupid as G W Bush can see those guys aren't a voting majority.

    What's much more likely is that this whole operation is under the direction of the Bush/Cheney Administration at this time, and one of the DOJ's ancient holdovers from Prohibition first took an interest in 1998.

    And the whole thing is yet another Bush Administration attempt to misdirect the public's attention away from his abject failure in domestic social and economic policies.

  9. b shubin

    US out of WTO - unlikely

    as a sentiment without rational thought, this is absurd and unworkable. most of the products sold in the US are now made elsewhere, largely thanks to the WTO.

    WTO procedures are fairly straightforward and transparent (as opposed to, say, ICANN), so this is certainly a "lesser evil" situation. The WTO would otherwise be replaced with an insane patchwork of complex and contradictory trade treaties between individual countries (usually opaque, questionable back-room deals with little or no oversight). that precarious arrangement would then be actively exploited for its flaws, or evaded entirely through the smuggling that would explode in response to such labyrinthine regulatory arrangements (with a concurrent rise in corruption, crime and money laundering).

    US-based manufacturing that is also domestically owned, is almost dead; it just hasn't stopped twitching yet. China got most of it, but there's plenty all over the world. if the US were to withdraw from the WTO, its economy would simply fall apart. modern industrial mass production is expensive and complex (not to mention the supply chain arrangements required to feed it), and can not be restarted overnight. very little domestic production remains (and foreign companies like Toyota and Honda own more of what's left every day).

    where gambling is concerned, Mr. Abramoff (or persons like him) did an amazing job creating this dispute situation. i wonder who the US gambling industry has bought at the DOJ. must be pretty high-level, to be so effective.

    if people want to gamble, let them (they'll find a way to do it anyway). what we have now is protectionism, not prohibition. if you'd like proof, consider lotteries, Nevada (Las Vegas, etc.), New Jersey (Atlantic City), the closest navigable river (riverboat casinos), your local Turf Club, or a nearby American-Indian reservation (more often than not), not to mention online wagers (legal and otherwise) and the office pool.

    i live an hour away from Detroit, and it's full of gambling joints (domestic auto manufacturing doesn't pay the bills any more, you see). They're popular, too, even on weekdays.

    if one must go online to gamble, and gets ripped off through international credit card fraud, i can only laugh. with all the options available here, one hardly needs facilities in other countries, but if people demand access to this, i say we should let them have it.

  10. Michael

    Re: The current US administration

    "Anyone surprised?

    because I'm not.

    Without a doubt and as we’ve seen since the inception of this current US administration they only have one rule and that is our way or no way; this is the fundamental tenet they follow and nothing else."

    Clearly, you're not familiar with the US system of government, in which the Administration (the president and cabinet) CANNOT make laws. Laws are made by the House and Senate, which are currently controlled by the opposite party (democratic) of the current Administration (republican).

    It's quite obnoxious when people use every story under the sun to try and take a jab at the president of the US. No, he's not that great of a president, but to continually blame him for everything you think the US is doing wrong very clearly demonstrates your own ignorance.

  11. Anonymous Coward
    Anonymous Coward

    Why the US isn't giving in

    I know most Europeans would rather swallow their own foot than try and understand American motivations – but I will try and explain anyway.

    The US is very different than European countries – we have States and they have tremendous power. A good analogy would compare the US Federal government to the EU government in Brussels, while the US States would be analogous to the European member countries. It is very hard for Europeans who haven't lived here to understand how different each State can be. For example, in the State of Nevada, prostitution is legal – in all other 49 States it's illegal. In many States you can legally carry a handgun – in certain US cities you can't even legally own one. Some States have income taxes, some don't. Cars are registered differently in all 50 States, and so are drivers licenses. Some States have vineyards and distilleries, while others ban alcohol. And - critical to this case - some States allow all gambling, some states allow limited gambling, and others outlaw it in all forms.

    Complicating matters further is the fact that every State that allows gambling regulates it differently. Some tax it heavily, others lightly. All have arbitrary rules; for example Missouri Casinos have a “loss limit” that only allows a patron to loose $400 every two hours. Electronic cards are used to keep track of each players winnings or losses. Alternatively, Atlantic City Casinos have no loss limit (other than your pocket book). The differences in gambling regulations from state to state would - literally - fill a book.

    Allowing Antigua to offer Internet gambling to American citizens gives a foreign power the right to supplant the rights of the States. A analogous situation would be if the EU had negotiated WTO privileges instead of the individual countries. Imagine a US seller offering Nazi memorabilia to Germans, or banned video games to Britons. These countries would rebel rather than allow themselves to be governed by the “one size fits all” approach of Brussels. Furthermore, there would be much righteous indignation toward the foreign power that wanted to usurp the rights of sovereign nations. Well, thats how the States feel. And they are supported by the American Constitution, which states that all privileges/powers not afforded to the Federal Government are by default assigned to the States. Allowing Antigua the right to essentially set up a national online casino, outside of State regulation, would be an unprecedented usurpation of States rights, and would cause a constitutional crisis.

    Of course, despite the interviewed lawyer's protestations of “bewilderment” about US actions, he understands this well. A careful reading of the interview even shows him mentioning these very facts. But, at this point, this case is all about the almighty dollar. If Antigua can't set up gambling in the US, then they want the right to steal an equivalent amount of dollars from an unrelated area. The US wants to change the trade agreement to close the loophole, and Antigua wants a pay day. Certainly, the US should have been more careful in making the original agreement, but I don't think it's unreasonable to amend agreements to protect the sovereign rights of countries – or even member states.

  12. Paul

    Eduard Coli - a great troll

    E Coli, surely you're an arse!

    yes, everybody hates the US gov't, even its own people (just ask the Dixie Chicks!)

  13. Anonymous Coward
    Anonymous Coward

    US out of WTO

    "If anything does this demonstrates why the US needs to be out of the WTO now!"

    Don't let the door hit you in the ass on the way out.

  14. Anonymous Coward
    Anonymous Coward

    Its how the system works

    The "Why the US isn't giving in" post describes neatly how the government system works here, I can't add anything to improve it. However this business of the DoJ guy looking as if they've stepped out of a 1950's era mob movie sums up the other part of the puzzle. According to the Federal government gaming is a sign of 'moral turpitude' (their term, not mine) and making a living from gambling is actually one reason why you can be refused US citizenship. (That is, of course, unless the gambling is in hedge funds in which case you're a financial hero, a person of "outstanding merit in the arts and sciences".) Given the mindset of the Administration its no wonder that instead of turning a blind eye to what is an insoluble, and essentially unimportant, problem they go and arrest directors of Internet gaming companies that are foolish enough to change planes in the US.

    The long term solution is to allow individual states to regulate gaming so that they can integrate this with whatever rules that they have for intrastate gaming. This would mean that individual states would be involved in trade talks with foreign powers -- something that's not done -- but its realistic given that a typical US state is as large as most countries and many have economies that are country-sized. But we've got a way to go with this. For now, sit back and enjoy the lesson on the way US government works -- it really is a form of organized anarchy (now doesn't that make you feel safer?).

  15. Aubry Thonon

    Let me summarise...

    1) The US Federal Government does not rule the USA, the State government do (so why have a federal government and a president?)

    2) The US President and the White House do not make laws and have to follow Congress (so why has the US president repeadetly thumbed his nose at congres w.r.t Guantanamo Bay and the war in Iraq?)

    3) The US Government cannot be held accountable for the agreements it signs - see point 1 (really? tell you what, sign a contract and reneg on it and use the "US government does it" clause and see how far that gets you)

    4) The US Government believes it can ignore other governments or organisations it is a part of (do I really need to list them here?)

    I'll not even go into the various bully tactics the US Federal government uses in trying to impose american laws/patents/morals/etc.. upon other countries, generally on behalf of their industrial giants (RIAA/MPAA, anyone?)

  16. Anonymous Coward
    Anonymous Coward

    re: Its how the system works

    In the USA I don't think the States have the power to negotiate treaties with foreign governments. I thought that was one power reserved by the Constitution for the Federal government.

    The US could delay the constitutional crisis by passing measures repealing bans on interstate gambling. There's even a face-saving spin on it for the Bush administration:

    "Tiny Antigua didn't spank our asses in the WTO. We decided since mobsters don't rule gambling anymore that it's safe to bring gambling back."

    Naturally, the reality is Antigua spanked our asses. But since when has facing reality ever been a concern to the Bush administration? (That's probably how they got us into this mess..)

    Folks who've been forced to invest their retirement in the stock market by Bush's refusal to fix Social Security would certainly appreciate it if the Bush DoJ doesn't allow economic sanctions to screw American companies. Granted, it wouldn't play well with his social conservative bible thumping groupies who want to be fascist nannies to the people of our nation. Thankfully it's not like Bush is trying to get re-elected.

  17. Mark Mendel

    Brief Response

    In response to the posters who mentioned the state sovereignty issue, I would like to make three observations. First, the United States Constitution reserves jurisdiction over interstate and international commerce to the federal government. States have "surrendered" massive powers over the decades to the federal government as a result of the broadening and stretching of this federal reservation. Second, knowing its system, the United States entered into an international treaty that obligated it to perform in a certain way, and in particular, that makes the federal government the only performer of relevance in the trade system. Antigua and all other members were and are entitled to rely on the international obligations of another sovereign nation, expressly and freely made. Third, and perhaps less important, but saying that American states should have the "sovereign power" to engage in trade protection in order to boost their own economies without having to compete with international trading partners is not exactly the stuff that would stir the souls of patriots.

    All that being said, you should know that we (Antigua) have never advocated unrestricted, unlimited internet gambling. Nor have we ruled out compromise to address the legitimate (i.e., non-trade discriminatory) interests of American states, notwithstanding that we are not obligated to. We have even proposed some co-regulatary scheme, or some degree of United States participation or oversight of Antigua's own scheme when it comes to services offered to American consumers.

  18. Matt T

    Response to anon idiot "why the US isnt giving in"

    Apparently you declined to read the part of the Constitution where the federal government regulates interstate commerce. Maybe you are a Republican jackass apologist, I don't know. The Bush DOJ can regulate California doctors prescribing marijuana to dying cancer patients or Oregon ones prescribing assisted suicide meds(I don't pretend to understand that logic), then they sure can regulate remote gaming, by fiat unless Congress makes a law. That little part they call the SUpremacy Clause helps them there as well. Antigua has repeatedly offered to compromse on state's rights as well. Utah and Hawaii ban all 'legal' gambling, and they are down with not offering anything there. Offers have been made about states with or without indian casinos. OTBs, riverboats, etc, its been repeatedly put on deaf ears.

  19. Anonymous Coward
    Anonymous Coward

    Why the US isn't giving in - Part 2, the Response

    To the summarizer – If you really have such a poor understanding – my condolences. If (as I believe), you simply let your anti-Americanism overpower logic and you didn't even try to understand – I would like to know : How does your foot taste?

    To Mark – the brief responder – I get it – you have us in a legal bind. Yes, the US trade negotiators screwed up and either by omission, accidental inclusion or overlooking made a bad deal. “Tiny Antigua” now has the right to offer services directly to US citizens – despite the fact those services are illegal where they live. “Tiny Antigua” also has the legal right to ignore all state regulations (assuming the state even allows legal gambling) and can pretty much screw US citizens at will - not that they would, of course ('cough', 'cough' -credit card fraud!).

    Having said that, do you think the US is going to let a foreign country come in and offer illegal services to it's citizens? I don't either. Thats why the US has fought this every step of the way. Ultimately, we all know how this will end. The US will say “mea culpa”, pay millions to “Tiny Antigua” and change the trade agreement to close the loop hole Antigua is exploiting. Lawyers will get rich (including you, Mark), Antigua will get an economic windfall – and most Americans will continue on, unaware Antigua even exists.

  20. Mark Mendel

    The Whole Point

    To Mr Anonymous, the whole point is that those services are NOT illegal in the United States. If they were, it would be a different matter altogether. We, for one, don't buy the "non-remote gambling is grand, remote gambling is bad" distinction made by the US government in our case, but having lost on that issue we (unlike the US, apparently) have accepted it. As I said when the appellate body decision of the WTO was released some two years ago, I think that if the United States banned all remote gambling, we wouldn't have much to argue about. You should read some of our submissions to see just how ubiquitous lawful remote gambling is in the United States, and how wide open states remain to offer even greater remote services within their territories.

  21. Anonymous Coward
    Anonymous Coward

    The whole point - Is Money.

    Once again, I am sure you are on firm legal ground. I have not read your/Antigua's legal briefs to see how ubiquitous legal gambling is in the US, but I am sure you are counting everything from the office football pool to church raffles (your presence isn't required to win). Despite the firm legal ground you stand on, we (as do most reasonable people) see a considerable difference between a church raffle and an online casino that accepts credit cards – especially since only a hand full of states allow casinos at all (and all are carefully regulated). The fact remains that in many states you can't even so much as buy a lottery ticket, much less go to a Casino – and yet a foreign power wants to offer a largely unregulated online casino to US Citizens -despite local laws prohibiting gambling.

    Just to be clear, my posts are not a defense of the US in this case, we made a bad deal for which we will be held accountable – I am positive Antigua/the EU will get paid for our mistake. My purpose was solely to explain to those who are “bewildered” by US actions in this case why the US is fighting. Of course, the problem is – as I stated in the first sentence of my first post, “ ...most Europeans would rather swallow their own foot than try and understand American motivations..”. In hind sight, I think that “most Europeans” should have been replaced with “most of the world”.

  22. Matt T

    Reresponse, whole point.

    I'm not anti-American, hell I even voted for Bush, twice like a fucking moron. I think its you who stuck your foot in your mouth. But, I understand this is a complex issue to explain in a legal and procedural sense. Mark's interview is 4 pages and awesome work, but the average lay person who has not followed this story for the last ten years doesn't get what is going on.

    Follow the money if you want to make your argument. Look up Frist and Goodlatte's donors(sposnors of the last big antigambling legislation). Horse Racer's and Harrah's. I think it would serve a muckraker well and give a good story to look at EVERY member of Frist's staff and how much money they made from Harrah's, and where they are now. The money being made/protected is that of bigtime Republican donors. The other constituenciy fighting here are the patent, lying panderers at Focus on the Family. This is not a US vs. the world issue. That's Iraq. This is the Bush USTR and Bush DOJ fighting for core donors

    and sheep voters who think he is a Christian.

    BTW almost every state has a casino, only two lack lotteries, and everyone has a huge undergorund gambling industry. I live in a 45k red state small town, and I know of 8 guys who make a living solely from offering sports betting services, over the phone. Have some facts before you yell at people and label them anti-American.

  23. Aubry Thonon

    Re:Why the US isn't giving in - Part 2, the Response

    Mr A. Nonymous: "To the summarizer – If you really have such a poor understanding – my condolences. If (as I believe), you simply let your anti-Americanism overpower logic and you didn't even try to understand – I would like to know : How does your foot taste?"

    Wouldn't know. What I *was* doing was pointing out the inconsistencies with the USA's Federal Government's recent stances. I *really* don't understand what has happened in the last few administrations... I mean, this is a Fed Gov which gave us the Moon Race... and yet has spent the last few years trying to break the Guinness Book's "amount of egg on face" record.

    As for being anti-American.... <laughs> yeah... right... feel free to believe that if it helps you sleep at night... me, I'm anti-idiocy - which at the moment makes me anti-US Federal Government. (just recently saw the "commuted sentence for Attorney General" speech by the President and wondered if he had any idea what he was actually saying)

  24. Anonymous Coward
    Anonymous Coward

    No sympathy for the Devil?


    I’m glad to hear that some people still judge Americans individually, rather than by the example set by Bush (who I didn’t vote for - either time!). Listen, I dislike the Bush administration just as much as the next guy, and think he has done more to hurt the US image abroad than any other 3 presidents put together (and that’s saying a lot considering some of the choices available). It just seems like the media portrays this as the US picking on poor “little Antigua”, and it seems more like a shakedown to me. (Shakedown is US slang for a scheme where money is extracted from the target using unscrupulous means).


    Since you declare that I am short on facts, here are a few:32 US states have Casinos – 18 Ban them. Almost half of the states that have Casinos actually ban them, but because Indian reservations (which are treated as mini sovereign nations) are in those states, and the Indians wanted the revenue, they opened Casinos there.

    10 States do not have a lottery, or 20%. (This number will go as low as 9, or as high as 13 – depending on what you consider a lottery). Currently, 9 states expressly prohibit online gambling.

    Clearly, allowing a foreign power the right to operate an online casino across State lines, and in direct violation of State laws would cause the US a bit of a problem. Admittedly, the US trade negotiators should have been more careful when they set up the original agreements – and I am sure the US will pay (lavishly) for that mistake.

    As for Antigua and the fate of online gaming in the US, all of this may be academic. A House bill was introduced April 26, 2007 called: “Internet Gambling Regulation and Enforcement Act of 2007” (H.R. 2046). This would establish “a federal regulatory and enforcement framework to license companies to accept bets and wagers online from individuals in the U.S., to the extent permitted by individual states, Indian tribes and sport leagues.”

    Now lets move on to more pressing issues, like planning a world party for Bush’s departure from the oval office.



  25. Matt T


    You are using numbers misleadingly again. 2 states, Utah and Hawaii lack a legal form of gambling. Most states that lack lotteries outside those two, have large horse betting or casino gambling, and view it as competition. The gaming industry is run by a bunch of monopolisitic anti-competitve asses. They collude with corrupt politicians to have the only game in town. As for which states ban online gaming, very few have concrete direct laws. I doubt most of them would stand scrutiny. Most of the recent, more direct laws, Illinois, Louisiana, and Washington are in states where the laws were crafted as protectionism to protect indian and riverboat casinos. Its not gambling that the US govt is against, its gambling run by people who don't fund their reelection campaigns. The IGREA bill by Frank is a half step, with tepid support, and would in no way bring the US into complaince at the WTO. And, for the record, if you still want to gamble away your house, retirement, kids college fund, and whatever you can get from a kidney, its still very easy to do online, at legal places, and illegal.

    "Gambling is inevitable. No matter what is said or done by advocates or opponents of gambling in all its various forms, it is an activity that is practiced, or tacitly endorsed, by a substantial majority of Americans."

    -- Commission on the Review of National Policy toward Gambling, 1976, p.1.

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