Report of the Law Reform Committee on Online Gaming and Singapore
For an overview and state-by-state comparison, see Annex.106 Special mention should at this point be made of the popularly-used test for constituting “gambling”. Under the so-called “Dominant Factor Analysis”, “chance” is one of the elements generally required to be present in order for a game to violate a State anti-gambling statute. Where the element of chance predominate over other elements (in the case of multiple factors), in particular skill, in determining the outcome of a wager then gambling occurs. Some states allow gambling for money in a purely social context, which usually means that no player or other person, such as a bookie or host, makes or earns anything other than as, and on an equal footing with, a mere player in the game.
The trade law (WTO) dispute108
An action was brought against the US in 2004 in the World Trade Organization
(“WTO”) by Antigua and Barbados.109 This resulted in a WTO tribunal ruling of some significance on the form that online gambling laws can take. The tribunal that heard the case found that the aggressive efforts of the US government to curb Internet gambling were in violation of WTO commercial service accords.110 The Tribunal explicitly found that the US was unfairly prohibiting foreign Internet gambling operators from accessing the American market, while allowing domestic companies to legally accept online bets. The WTO ruling against the US gave the WTO the ability to impose trade sanctions against her. Since then, the European Union, India, Japan, Australia, Canada, and other countries have joined Antigua and Barbados in seeking compensation from the US for economic injury resulting from this trade agreement violation. 111
Gambling-Law-US website at http://www.gambling-law-us.com.
Katherine A Valasek, “Winning the Jackpot: A Framework for Successful International Regulation of Online Gambling and the Value of the Self-Regulating Entities” (2007) Mich St L Rev 753; John D Andrle, “A Winning Hand: A Proposal for an International Regulatory Schema with Respect to the Growing Online Gambling Dilemma in the United States” (2004) 37 Vand J Transnat’l L 1389.
Clint Bodien, “Cross-Retaliation in the WTO: Antigua and Barbuda’s Proposed Remedy Against the United States in an Online Gambling Dispute” (2008) 14 Law & Bus Rev Am 847; Michael Park, “Market Access and Exceptions under the GATS and Online Gambling Services” (2006) 12 Sw JL & Trade Am 495 and Eric J Carlson, “Drawing Deas: Recognizing Problems with Congress’ Attempt to Regulate the Online Gambling Industry and the Negative Repercussions to International Trade” (2008) 32 Suffolk Transnat’l L Rev 135.
“Request for Consultations by Antigua and Barbados, United States – Measures Affecting the Cross- Border Supply of Gambling and Betting Services” S/L/110WT/DS285/1 (13 March 2007).
“Panel Report, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services” WT/DS285/R (10 November 2004).
“Representative Frank Questions Need for Internet Gambling Study and Warns of WTO Internet Gambling Dispute Consequences” PR Newswire (4 October, 2007). The US appealed the judgment, but the appellate court found that she violated the General Agreement on Tariffs and Trade (GATT) by the grant of authority to allow Internet betting on horse races. Another panel also later ruled that she had not taken sufficient steps to comply with both the appellate and the initial ruling. See “Appellate Body Report, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services” WT/DS285/AB/R (7 April 2005).