EDITORIAL
The Federal vs State arguments which are being aired in the Kalshi case are not exclusive to the US. In Brazil the Supreme Court is looking at a similar situation as reported by Caio de Souza Loureiro. There, states and even municipalities are playing a form of regulatory arbitrage to attract operators to their territories. In Europe, finally, the rights of member states to regulate their gambling markets has regularly conflicted with the EU’s Internal Market principles. Robbe Verbeke analyzes a case where Apple’s safe haven as a digital platform provider under EU law was tested almost to breaking point in a Belgian court. The case centered around lootboxes and could well be tested elsewhere, too. It shows that even in the presence of an unlawful lottery, the question as to who bears responsibility for it may still be a matter of dispute. In the logic of the Duck Test, just because everyone agrees it is a duck, that does not (yet) make the provider of the duck’s habitat responsible for the duck’s behavior. Allow me to conclude with a critical note on the Duck Test. The trouble with abductive reasoning is that it only provides for a plausible, likely conclusion while not verifying the conclusion. And even beyond that logical flaw, I propose to consider one important question: are the tools of a given national gambling act suitable and intended to address the phenomenon at hand? Some legislators chose to say ‘no, they are not’. The Swiss Gaming Act, for example, expressly exempts activities from the Gaming Act that are subject to the scrutiny by the Financial Market Supervisory Authority as defined in the Financial Market Act. Equally, snowball, avalanche and pyramid schemes are exempted from the scope of the Gaming Act, too and subjected, by law, to the rules of the Unfair Competition Act. It is a legitimate question. Should we leave it to the legislator or to the judiciary to make that classification call? Simon planzer@planzer-law.com
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IMGL Magazine is owned, published and distributed by: The International Masters of Gaming Law PO Box 27106, Las Vegas, NV 89126 USA The IMGL is a domestic non-profit corporation registered in Nevada, U.S. with registration number NV20121147120 Editor in Chief: Simon Planzer PhD, planzer@planzer-law.com Publication & Marketing Committee: Co-chairs , Simon Planzer (Publications), Ali Bartlett (Social Networks & Digital) Members : Luiz Felipe Maia, Daniel McGinn, Luis Carvalho Staff : Phil Savage, Brien Van Dyke Head of Publications: Phil Savage phil@IMGL.org Design and production: SportBusiness Communications. Copyright: All rights reserved to IMGL. No part of this publication may be reproduced or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without prior permission from the publisher. The articles expressed in this publication do not necessarily reflect the views of IMGL but those of the authors. The publisher and editor do not accept any liability for the contents of the authors’ contributions.
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