Choosing between Liberalization and Regulatory Autonomy under GATS: Implications of U.S.-Gambling for Trade in Cross Border E-Services

By King, Nancy J.; Kalupahana, Kishani | Vanderbilt Journal of Transnational Law, November 2007 | Go to article overview

Choosing between Liberalization and Regulatory Autonomy under GATS: Implications of U.S.-Gambling for Trade in Cross Border E-Services


King, Nancy J., Kalupahana, Kishani, Vanderbilt Journal of Transnational Law


ABSTRACT

In 2005, the World Trade Organization (WTO) Appellate Body presided over United States--Measures affecting the cross-border supply of gambling and betting services (U.S.-Gambling), in which Antigua argued that U.S. criminal laws banning the provision of cross-border online gambling services violate U.S. commitments under the General Agreement on Trade in Services (GATS). For the first time, the WTO's dispute settlement process directly addressed the application of GATS to domestic regulatory barriers restricting cross-border trade in services. This Article examines GATS rules on domestic regulation as well as the WTO Appellate Body and Panel decisions in the case and asks if the WTO has improperly restricted members' ability to regulate domestic concerns. What will be the broader impact of the WTO's rulings for cross-border trade in e-services? Highlighting the difficulties that members face in trying to resolve the conflict between liberalization and regulatory autonomy in the context of cross-border e-services, this Article argues that the scope of GATS rules on domestic regulation needs to be refined if GATS is to remain an instrumental force in liberalizing trade in e-services. The Article concludes with proposals to guide the negotiations on domestic regulation to ensure that such regulations are not unnecessarily burdensome to trade in e-services. Identifying certain unresolved issues of U.S.-Gambling that characterize the tension between market access and domestic regulatory autonomy, it also argues that these issues must be addressed in the negotiations on domestic regulation if a desirable balance between regulatory autonomy and progressive liberalization of global e-services markets is to be achieved.

TABLE OF CONTENTS

I.   INTRODUCTION
II.  GATS, TRADE LIBERALIZATION, AND DOMESTIC
     REGULATION
     A. Making Commitments to Liberalize Trade
        in Services
     B. Most Favored Nation, Transparency,
        and Other General Obligations of Members
     C. Limitations on Domestic Regulation
        that Restricts Trade: Balancing
        Liberalization with Regulatory Autonomy
        1. The Article VI Mandate to Develop
           Disciplines on Qualitative
           Domestic Regulation
        2. Article XIV Exceptions Permitting
           Regulations Necessary to Protect
           Fundamental Domestic Policy
           Interests
        3. Articles XVI and XVII: Restrictions
           on Quantitative and Discriminatory
           Forms of Domestic Regulation
           i.  Market Access Obligations
               Restrict Domestic Regulations
               that Place Quantitative Limits
               on Access to Services Markets
           ii. National Treatment Obligations
               Restrict Discriminatory
               Domestic Regulation
III. THE U.S.-GAMBLING LITIGATION
     A. The Panel's Decision
     B. The Appellate Body's Decision
IV.  THE TENSION BETWEEN LIBERALIZATION AND
     REGULATORY AUTONOMY: INSIGHTS FROM
     U.S.-GAMBLING
     A. U.S.-Gambling: An Erosion of Domestic

        Regulatory Autonomy?
     B. The Role of Disciplines under Article VI: 4
        and the Accountancy Disciplines
     C. Article XIV Shields Domestic Regulation
        that Restricts Liberalization
        1. The First Tier of the Article XIV
           Analysis
        2. The Second Tier of the Article XIV
           Analysis
V.   ENHANCING THE REGULATORY ROLE OF GATS
     FOR CROSS-BORDER TRADE IN E-SERVICES
     A. GATS and Developments in the WTO Work
        Program on E-Commerce
     B. The Need for a Strengthened Discipline on
        Domestic Regulation
     C. Going Forward Pragmatically--A Modest
        Proposal for Drafting Disciplines to
        Support E-Services
VI.  LIBERALIZING E-SERVICES: THE CONTINUING
     DEBATE OVER THE BOUNDARIES OF DOMESIC
     REGULATORY AUTONOMY AFTER U.S.-GAMBLING
     A. … 

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Choosing between Liberalization and Regulatory Autonomy under GATS: Implications of U.S.-Gambling for Trade in Cross Border E-Services
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.