It is, however, far from certain whether the measures challenged in Gambling fall into this category. It is far from certain because of a failure to deal with an indispensable step in the legal reasoning, a step necessary before one may arrive at the conclusion that an origin-neutral regulatory measure having a ‘zero effect’ does in fact and in law violate Article XVI. Even if one takes the view, as did the Panel and the Appellate Body, that in principle such measures may violate Article XVI, there is a serious issue if such is the case if the effects of the measure are felt only ‘on part of a scheduled sector’ or if the measure in question restricts only one means of delivery covered by Mode 1, leaving others unaffected.
Imagine, for example, a hypothetical commitment to ‘Internet gambling and betting services’ by the US. Imagine further a hypothetical US Statute applicable both to domestic and foreign Internet gambling service providers that banned, for reasons of consumer protection, the placing of Internet bets and especially the paying for such bets without automatic encryption of consumer credit-card in- formation by the service provider. Or an internal measure which required that the provider use software that was able to verify the age of Internet gamblers so as to ensure against gambling by minors, or even more challenging, prohibited Internet gambling through wireless access (because of the unknown health effect of exten- sive WiFi) but which allowed it over Internet wires. A nondomestic provider of- fering ‘non encrypted Internet gambling’ or ‘unrestricted gambling’ or using wireless services, could argue that such provisions amount to a ‘zero quota’ on his means of delivery or his segment of the market and were thus violative of Article XVI. The only redress of the United States in such a case would be to defend such measures as an exception provided by Article XIV. The Panel Decision seems to support such an interpretation.
One could also take the view that, even assuming the Commitment in the schedule covered Internet gambling, such (hypothetical) measures did not amount to a limitation contemplated by Article XVI. On this view, there is no violation of Article XVI since Internet gambling remains open to service pro- viders as per the commitment, and what one has is simply origin-neutral legitimate regulation of the Internet pursuant to public policy. On this view, there is no ‘zero quota’ of the relevant service market, which is Internet gambling in its totality. The measures do not ‘zero quota’ the provision of services thus understood, even if they might shut out the market to a provider who refused to use encryption or use software that could be used to verify the age of gamblers if the law so required or insisted on using WiFi. On this view, provided the United States did not violate the distinctly separate obligation of National