Bark But No Bite? Antigua Talks Tough On WTO Gambling Case, But No TRIPS Remedy

The tiny Caribbean nation of Antigua and Barbuda again had strong words today for the United States’ seeming incalcitrant refusal to change its law or pay up in a World Trade Organization case it lost for blocking the island nation’s online gambling business. But Antigua stopped short of any direct threat to use the weapon it was given by the WTO dispute settlement panel: to stop protecting US intellectual property rights in the amount of the damages.

Antigua has the right to not protect US$ 21 million per year for each year the US blocks its gambling services. This is a cross-retaliation solution because of the lack of substantive trade in other areas between Antigua and the US that would not also harm Antigua to target.

But despite charging that the US is remiss in its obligation to pay, Antigua at today’s WTO Dispute Settlement Body meeting refrained from raising the spectre of lifting protections for US IP rights.

In its vitriolic statement, Antigua complained that the US has indicated that its compliance with the decision is optional, and to date has failed to make any payment to Antigua despite its obligation to do so.

“The facile excuses presented in the past are completely without merit, and the United States as well as every other member of this body knows it,” Antigua’s statement said. “We understand that this is all orchestrated to frustrate us to cause us to tire and slink away into oblivion.”

US stakeholders after the WTO decision painted Antigua as a pirate nation bent on stealing US IP rights, despite the choice of cross-retaliation being fully authorised by the WTO dispute panel.

Antigua again raised the question of whether the WTO dispute procedures are working, especially for small countries. This was the strong message at the last DSB meeting (IPW, WTO/TRIPS, 26 April 2014).

Trinidad and Tobago made a statement in support of Antigua and Barbuda.

The dispute dates back to 2003 when Antigua and Barbuda requested consultations with the US regarding measures applied by central, regional and local authorities in the US affecting the cross-border supply of gambling and betting services from Antigua and Barbuda.

In December 2007, the DSB arbitrator ruled that the annual level of nullification or impairment of benefits accruing to Antigua and Barbuda was US$21 million and that Antigua could request authorisation from the DSB to suspend the country’s obligations under the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) for the same amount annually.

At the DSB session of January 2013, according to the WTO, Antigua and Barbuda requested that the DSB authorise the suspension of concessions and obligations to the US in respect of IP rights. The DSB agreed to grant such authorisation.

However, the authorisation had not been used so far by Antigua and Barbuda.