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王 衡
西南政法大学
国际法学院教授
西南政法大学研究生导师,法学博士、国际投资与金融法律研究中心副主任。兼任(以时间为序)(世界)国际经济法协会常务理事、亚洲国际经济法网络常务理事、中国国际经济法学会理事、中国法学会国际经济法学研究会理事、西班牙马德里仲裁院仲裁员、国际可持续发展研究院董事等职。(更多
 
 
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美国博彩案选读
 

United States – Measures Affecting the Cross-Border Supply of Gambling and Betting services
WT/DS285/AB/R
7 April 2005
AB-2005-1

Report of the Appellate Body

注:本案简称“US — Gambling”, 专家组与上诉机构报告全文下载http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds285_e.htm

I.Introduction
1.The United States, and Antigua and Barbuda ("Antigua"), each appeals certain issues of law and legal interpretations developed in the Panel Report, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services (the "Panel Report"). The Panel was established to consider a complaint by Antigua concerning certain measures of state and federal authorities that allegedly make it unlawful for suppliers located outside the United States to supply gambling and betting services (博彩服务) to consumers within the United States.

2.Before the Panel, Antigua claimed that certain restrictions imposed by the United States through federal and state laws resulted in a "total prohibition" (完全禁止) on the cross-border supply of gambling and betting services from Antigua. Antigua contended that such a "total prohibition" was contrary to obligations of the United States under the General Agreement on Trade in Services (the "GATS"). In particular, Antigua asserted that the GATS Schedule of the United States includes specific commitments on gambling and betting services (安提瓜主张美国的GATS服务贸易承诺减让表包括了对博彩服务的具体承诺). Antigua argued that, because the United States made full market access and national treatment commitments (that is, inscribed "None" in the relevant columns of its GATS Schedule) (美国就市场准入和国民待遇作出全面承诺,[即,在GATS承诺件让表相关栏目中写明“无限制”]), the United States, in maintaining the measures at issue, is acting inconsistently with its obligations under its GATS Schedule, as well as under Articles VI, XI, XVI, and XVII of the GATS.

(…)


4.(…) The Panel then determined that the following laws of the United States had been "sufficiently identified [by Antigua] so as to warrant a substantive examination by the Panel":
(A) Federal laws:
   (i) Section 1084 of Title 18 of the United States Code (the "Wire Act");
   (ii) Section 1952 of Title 18 of the United States Code (the "Travel Act"); and
   (iii) Section 1955 of Title 18 of the United States Code (the "Illegal Gambling Business Act", or "IGBA"). (…)


5.After evaluating Antigua's claims with respect to these federal and state measures, the Panel concluded that:

   (a) the United States' Schedule under the GATS includes specific commitments on gambling and betting services
under sub-sector 10.D;
   (b) by maintaining the following measures, ... the United States fails to accord services and service suppliers of
Antigua treatment no less favourable than that provided for under the terms, limitations and conditions agreed
and specified in its Schedule, contrary to Article XVI:1 and Article XVI:2 of the GATS:
        (i) Federal laws
            (1) the Wire Act;
            (2) the Travel Act (when read together with the relevant state laws);1072 and
            (3) the Illegal Gambling Business Act (when read together with the relevant state laws).
(…)

V. Interpretation of the Specific Commitments Made by the United States in its GATS Schedule

(注;争点一:美国加入GATS的具体承诺表中是否包含博彩业)

158. The Panel found, at paragraph 7.2(a) of the Panel Report, that:

... the United States' Schedule under the GATS includes specific commitments on gambling and betting services under subsector 10.D.

The United States appeals this finding. According to the United States, by excluding "sporting" services from the scope of subsector 10.D of its GATS Schedule, it excluded gambling and betting services from the scope of the specific commitments that it undertook therein. The United States argues that the Panel misinterpreted the ordinary meaning of the text of subsector 10.D, "Other recreational services (except sporting)", and erroneously found that the ordinary meaning of "sporting" does not include gambling. (…)

A. Interpretation of Subsector 10.D According to the General Rule of Interpretation: Article 31 of the Vienna Convention

162. (…)  We observe first that the interpretative question addressed by the Panel was a broader one, namely "whether the US Schedule includes specific commitments on gambling and betting services notwithstanding the fact that the words 'gambling and betting services' do not appear in the US Schedule." In tackling this question, the Panel turned to Sector 10 of the United States' Schedule to the GATS, which Antigua claimed included a specific commitment on gambling and betting services, and the United States claimed did not. The relevant part of the United States' Schedule provides:
 

Sector or subsector

Limitations on market access

10.       RECREATIONAL, CULTURAL, & SPORTING SERVICES

 

 

A. ENTERTAINMENT SERVICES (INCLUDING THEATRE, LIVE BANDS AND CIRCUS SERVICES)

  1) None

  2) None

  3) None

  4) Unbound, except as indicated  in the horizontal section

 

B.  NEWS AGENCY SERVICES

 

  1) None

  2) None

  3) None

  4) Unbound, except as indicated  in the horizontal section

 

C   LIBRARIES, ARCHIVES, MUSEUMS AND OTHER CULTURAL SERVICES

 

  1) None

  2) None

  3) None

  4) Unbound, except as indicated  in the horizontal section

 

D. OTHER RECREATIONAL SERVICES (except sporting)

  1) None

  2) None

  3) The number of concessions available for commercial operations in federal, state and local facilities is limited

  4) Unbound, except as indicated in the horizontal section

 


163. In considering this section of the United States' Schedule, the Panel stated that it would begin by "examining the ordinary meaning of various key terms used in the US Schedule." The Panel examined the term "Other recreational services (except sporting)" in subsector 10.D, as well as the term "Entertainment services" in subsector 10.A. Having consulted the dictionary definitions of various words, the Panel found that "the ordinary meaning of 'sporting' does not include gambling". The United States submits that the Panel could not have made this finding had it properly followed Article 31(1) of the Vienna Convention.

(…)

172. We also consider it useful to set out, briefly, the nature of the two documents at issue. On 10 July 1991, the GATT Secretariat circulated document W/120, entitled "SERVICES SECTORAL CLASSIFICATION LIST"(注:此处是指W/120文件,即“服务部门分类清单”). This followed the circulation of an informal note containing a draft services sectoral classification list in May 1991, as well as the circulation of an initial reference list of sectors (the "W/50") (注:此处是指W/50文件,即服务部门初始参考清单,这早于W/120文件)in April 1989. A short cover note to W/120 explains that the document reflects, to the extent possible, comments made by negotiating parties on the May draft, and that W/120 itself might be subject to future modification. Otherwise, the document consists of a table in two columns. The left column is entitled "SECTORS AND SUBSECTORS" and consists of a list classifying services into 11 broad service sectors, each divided into several subsectors (more than 150 in total). The right column is entitled "CORRESPONDING CPC" and sets out, for nearly every subsector listed in the left-hand column, a CPC (注:CPC是联合国《产品集中临时分类》,即Provisional Central Product Classification。新版本名为Central Product Classification)number to which that subsector corresponds. It is not disputed that the reference in W/120 to "CPC" is a reference to the United Nations' Provisional Central Product Classification. The CPC is a detailed, multi-level classification of goods and services. The CPC is exhaustive (all goods and services are covered) and its categories are mutually exclusive (a given good or service may only be classified in one CPC category). The CPC consists of "Sections" (10), "Divisions" (69), "Groups" (295), "Classes" (1,050) and "Subclasses" (1,811). Of the 10 "Sections" of the CPC, the first five primarily classify products. They are based on the Harmonised Commodity Description and Coding System, and are not referred to in W/120. The second five Sections of the CPC primarily classify services, and all of the references in W/120 are to sub-categories of these five Sections.

(…) 177. The Panel also reasoned that:

.... both W/120 and the 1993 Scheduling Guidelines were agreed upon by Members with a view to using such documents, not only in the negotiation of their specific commitments, but as interpretative tools in the interpretation and application of Members' scheduled commitments. (emphasis added)

In our opinion, the Panel's description of how these documents were created and used may suggest that the parties agreed to use such documents in the negotiations of their specific commitments. The Panel cited no evidence, however, directly supporting its further conclusion, in the quotation above, that the agreement of the parties encompassed an agreement to use the documents "as interpretative tools in the interpretation and application of Members' scheduled commitments."

178. In our opinion, therefore, the Panel erred in categorizing W/120 and the 1993 Scheduling Guidelines as "context" for the interpretation of the United States' GATS Schedule. Accordingly, we set aside this part of the Panel's examination of "context". (…)(注:“1993 Scheduling Guidelines ”是指1993年GATT秘书处《服务贸易初始承诺列表:解释说明》[Scheduling of Initial Commitments in Trade in Services: Explanatory Note,可简称《解释说明》或《列表导则》]。扩展阅读建议 王衡,《服务原产地规则研究》,法律出版社2010年版,美国博彩案部分;王衡,《WTO条约解释演进与中国服务贸易谈判策略选择——以2005 年美国博彩案为视角》,《学术论坛》2006年第8期,人大复印资料《国际法学》2007年第3期全文转载;Federico Ortino, "Treaty Interpretation and the WTO Appellate Body Report in US – Gambling: A Critique," 9 Journal of International Economic Law 1, 117-148 (2006); Panagiotis Delimatsis, "Don’t Gamble with GATS—The Interaction between Articles VI, XVI, XVII and XVIII GATS in the Light of the US—Gambling Case," 40 Journal of World Trade 6, 1059-1080 (2006).)

(…)195. The above reasoning leads us to the conclusion—contrary to the Panel—that application of the general rule of interpretation set out in Article 31 of the Vienna Convention leaves the meaning of "other recreational services (except sporting)" ambiguous and does not answer the question whether the commitment made by the United States in subsector 10.D of its Schedule includes a commitment in respect of gambling and betting services. Accordingly, we are required, in this case, to turn to the supplementary means of interpretation provided for in Article 32 of the Vienna Convention.

B. Interpretation of Subsector 10.D in Accordance with Supplementary Means of Interpretation: Article 32 of the Vienna Convention

196. We observe, as a preliminary matter, that this appeal does not raise the question whether W/120 and the 1993 Scheduling Guidelines constitute "supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion". Both participants agree that they do, and we see no reason to disagree.

(…)201. In the CPC, Group 964, which corresponds to subsector 10.D of W/120 (Sporting and other recreational services), is broken down into the following Classes and Sub-classes:

964 Sporting and other recreational services

9641 Sporting services

96411 Sports event promotion services

96412 Sports event organization services

96413 Sports facility operation services

96419 Other sporting services

9649 Other recreational services

96491 Recreation park and beach services

96492 Gambling and betting services

96499 Other recreational services n.e.c.

Thus, the CPC Class that corresponds to "Sporting services" (9641) does not include gambling and betting services. Rather, the Sub-class for gambling and betting services (96492) falls under the Class "Other recreational services" (9649).

(…)

VI. Article XVI of the GATS: Market Access

(注:争点二:美国是否履行了GATS下第16条的市场准入义务)

214. Article XVI of the GATS sets out specific obligations for Members that apply insofar as a Member has undertaken "specific market access commitments" in its Schedule. The first paragraph of Article XVI obliges Members to accord services and service suppliers of other Members "no less favourable treatment than that provided for under the terms, limitations and conditions agreed and specified in its Schedule." The second paragraph of Article XVI defines, in six sub-paragraphs, measures that a Member, having undertaken a specific commitment, is not to adopt or maintain, "unless otherwise specified in its Schedule". The first four sub-paragraphs

concern quantitative limitations on market access; the fifth sub-paragraph covers measures that restrict or require specific types of legal entity or joint venture through which a service supplier may supply a service; and the sixth sub-paragraph identifies limitations on the participation of foreign capital.

215. The Panel found that the United States' Schedule includes specific commitments on gambling and betting services, and we have upheld this finding. The Panel then considered the consistency of the measures at issue with the United States' obligations under Article XVI of the GATS. The scope of those obligations depends on the scope of the specific commitment made in the United States' Schedule. In this case, the relevant entry for mode 1 supply in the market access column of subsector 10.D of the United States' Schedule reads "None". In other words, the United States has undertaken to provide full market access, within the meaning of Article XVI, in respect of the services included within the scope of its subsector 10.D commitment. In so doing, it has committed not to maintain any of the types of measures listed in the six sub-paragraphs of Article XVI:2.

216. Before the Panel, Antigua claimed that, in maintaining measures that prohibit the cross-border supply of gambling and betting services, the United States is maintaining quantitative limitations that fall within the scope of sub-paragraphs (a) and (c) of Article XVI and that are, therefore, inconsistent with the market access commitment undertaken in subsector 10.D of the United States' Schedule. The Panel took the view that a prohibition on the supply of certain services effectively "limits to zero" the number of service suppliers and number of service operations relating to that service. The Panel reasoned that such a prohibition results in a "zero quota" and, therefore, constitutes a "'limitation on the number of service suppliers in the form of numerical quotas' within the meaning of Article XVI:2(a)" and "a limitation 'on the total number of service operations or on the total quantity of service output ... in

the form of quotas' within the meaning of Article XVI:2(c)".

217. In consequence, the Panel found that, by maintaining the following measures, the United States acts inconsistently with its obligations under Article XVI of the GATS:

Federal laws

(1) the Wire Act;

(2) the Travel Act (when read together with the relevant state laws); and

(3) the Illegal Gambling Business Act (when read together with the relevant state laws).

(…)

B. The Meaning of Sub-paragraphs (a) and (c) of Article XVI

221. The chapeau to Article XVI:2, and sub-paragraphs (a) and (c), provide:

In sectors where market-access commitments are undertaken, the measures which a Member shall not maintain or adopt either on the basis of a regional subdivision or on the basis of its entire territory, unless otherwise specified in its Schedule, are defined as:

(a) limitations on the number of service suppliers whether in the form of numerical quotas, monopolies,exclusive service suppliers or the requirements of an economic needs test; ...

(c) limitations on the total number of service operations or on the total quantity of service output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test; 9(注:此为该条款即GATS第16条注释9)

 9(注:此为该条款即GATS第16条注释9) Subparagraph 2(c) does not cover measures of a Member which limit inputs for the supply of services.

222. In its appeal, the United States emphasizes that none of the measures at issue states any numerical units or is in the form of quotas and that, therefore, none of those measures falls within the scope of sub-paragraph (a) or (c) of Article XVI:2. The United States contends that the Panel erred in its interpretation of sub-paragraphs (a) and (c) of Article XVI:2 by failing to give effect to certain elements of the text of these provisions, notably to key terms such as "form" and "numerical quotas". According to the United States, the Panel appears to have been influenced by a "misguided" concern that prohibitions on foreign service suppliers should not escape the application of Article XVI simply because they are not expressed in numerical terms. The United States asserts that the Panel ignored the fact that such prohibitions remain subject to other provisions of the Agreement, including Articles XVII and VI, and contends that, in its approach, the Panel improperly expanded the obligations in Article XVI. For the United States, Members that have made a specific commitment under Article XVI have committed themselves not to maintain the precisely defined limitations set out in Article XVI:2; Members have not committed themselves to eliminate all other limitations or restrictions that may impede the supply of the relevant services.

(…)  236. In our view, the above examination of the words of Article XVI:2(a) read in their context and in the light of the object and purpose of the GATS suggests that the words "in the form of" do not impose the type of precisely defined constraint that the United States suggests. Yet certain ambiguities about the meaning of the provision remain. The Panel, at this stage of its analysis, observed that any suggestion that the "form" requirement must be strictly interpreted to refer only to limitations "explicitly couched in numerical terms" leads to "absurdity". In either circumstance, this is an appropriate case in which to have recourse to supplementary means of interpretation, such as preparatory work.

237. We have already determined that the 1993 Scheduling Guidelines constitute relevant preparatory work. As the Panel observed, those Guidelines set out an example of the type of limitation that falls within the scope of sub-paragraph (a) of Article XVI:2, that is, of the type of measures that will be inconsistent with Article XVI if a relevant commitment has been made and unless the Member in question has listed it as a condition or limitation in its Schedule. That example is: "nationality requirements for suppliers of services (equivalent to zero quota)". This example confirms the view that measures equivalent to a zero quota fall within the scope of

Article XVI:2(a).

238. For the above reasons, we are of the view that limitations amounting to a zero quota are quantitative limitations and fall within the scope of Article XVI:2(a).

(…)

D. Application of Article XVI to the Measures at Issue

(…)

265. We have upheld the Panel's finding that the United States' Schedule to the GATS includes a specific commitment in respect of gambling and betting services. In that Schedule, the United States has inscribed "None" in the first row of the market access column for subsector 10.D. In these circumstances, and for the reasons given in this section of our Report, we also uphold the Panel's ultimate finding, in paragraph 7.2(b)(i) of the Panel Report, that, by maintaining the Wire Act, the Travel Act, and the Illegal Gambling Business Act, the United States acts inconsistently with its obligations under Article XVI:1 and Article XVI:2(a) and (c) of the GATS.

(…)



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