Could Gambling Sites Sue the Pants off Australia’s Government?
The Australian government is all-but guaranteed to pass an amendment that would formally prohibit online casinos and poker sites from accepting Aussies. The push for gambling reform has been heavy since the new government came into office, and it looked as if nothing could stop them. Except maybe a strain of multi-million dollar lawsuits.
The new law would create for specific authoritative bodies to investigate and enforce penalties against online gambling operators who continue to access the market without a licence. Any operator would have the option to apply for such a licence, but at the same time restrict them from providing online casino or poker services to Aussies.
For the last few months, it seemed the government had all its ducks in a row, prepared to eliminate these so-called illegal gambling operators from the country. But there’s one problem – the Trans-Pacific Partnership (TPP).
According to the Australian Fair Trade & Investment Network Ltd (AFTINET):
“The TPP includes rights for foreign corporations to sue governments for millions of dollars in international tribunals if they can argue that a change in domestic law or policy at national, state or local level will ‘harm’ their investment, known as Investor-State Dispute Settlement (ISDS).”
Multitude of ISDS Cases via TPP
Despite the Australian government’s impending invocation of legitimate legislation to strengthen gambling reform, international companies could still have a strong case against them if they choose the ISDS route.
There have been a multitude of cases filed by major corporations against outlying governments, many of which revolve around the enactment of legitimate regulations towards positive environmental and public interests.
For example, US pharmaceutical company Eli Lily has a pending case against the Canadian government because it refused to grant them a patent for a medicine that was deemed no more effective than other medicines that already exist.
Another US corporation, Lone Pine, an energy company, invoked provisions of the North American Free Trade Agreement (NAFTA) in its ISDS case against the government of Quebec. Lone Pine is suing for $250 million over a suspension of shale gas mining in the province. Quebec suspended mining to conduct an environmental study after the community raised concerns over the hazards of fracking oil.
These are just two examples of TPP-related ISDS cases where the arguments seem implausible, but could easily result in millions of tax dollars being paid out to major corporations.
Do International Gambling Sites Have A Case?
It’s hard to say whether offshore online casinos and poker rooms would have a viable case against the Australian government. From a legal standpoint, it could really depend on what the tribunal defines as an “investment”.
In the physical realm, an investment could be considered the hardware, software and servers used to run a company’s iGaming operation. As for non-physical investments, there’s the immense market for online casinos in Australia – albeit a market that was founded by slipping through loop holes in existing law.
Whether online gambling juggernauts like PokerStars or 888 would have a viable shot at securing millions through an ISDS is unknown. Whether they’d even find the action worth their time is a whole other matter. But it would beyond interesting to see what would happen if they did.