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What is the impact of the WTO services agreement and international investment agreements on state regulation of gambling?   

Even while the Antigua v. United States litigation related to the WTO services agreement (GATS) and regulation of internet gambling is winding down , it is still entirely possible that another international challenge to state and regulation of gambling could be brought, in a completely different forum.  That is to say, state regulation of gambling, including Utah's outright ban on all forms of gambling, might be challenged under investment chapter rules found in NAFTA (Chapter 11), CAFTA (Chapter 10), or some other international investment agreement or treaty to which the United States is a party.   

Canada and Costa Rica are examples of countries that have significant offshore gaming interests.  Gambling enterprises from Canada and Costa Rica  could file their own claims against the United States under NAFTA and CAFTA whether or not the case was sanctioned and supported by their respective national governments.  

There is another reason to be concerned about a possible investor claim on gambling.   The GATS includes a 'public morals exception' (Article XIV), and the WTO tribunal cited this exception in its ruling-which mitigated the scope of the adverse decision in Antigua v. United States.  But, this "public morals exception" is not a part of the investment chapters in either NAFTA or CAFTA.  

In a similar way, an international investor seeking to break into the U.S. market or expand its U.S. market share in casino gambling or some other niche of the heavily regulated "bricks and mortar" gambling industry might bring a claim before an international investment tribunal alleging that its rights have been violated.  Land-based gambling is a major industry all around the world.  Many of these gambling multinationals have the resources to challenge U.S. gambling regulations.  Because corporate subsidiaries also have "standing to sue," one of the big gambling multinationals from the United Kingdom or Australia could also take advantage of NAFTA and CAFTA rules by establishing a daughter company in Canada, Mexico, or a Central American nation.

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