There are several types of gaming permitted in the Macao Special Administrative Region of the People's Republic of China (Macao), including animal races, lotteries and sports betting. Legal gaming is essentially divided in two major types of activity:
- Lotteries, sports betting (football and basketball only) and pari-mutuel betting, which comprises bets on animal racing (horses or greyhounds) and where the total amount that was bet in one session is subsequently divided between the winners after deduction of commission and taxes in proportion to the betted amount.
- Games of chance and fortune in casinos, the results of which depend exclusively, or principally, on the luck of the player. In Macao, the operation of these games is restricted to areas classified as casinos by the law.
ii Gambling policy
The operation of gaming activities in Macao (land-based casinos, lotteries, sport betting and animal races) is subject to the prior authorisation of the government, which is granted under the form of a concession, and, in the case of land-based casinos, following an international public tender to be set by Macao.
iii State control and private enterprise
The operation of gaming activities is restricted to Macao (i.e., it is considered a forbidden activity, which may be pursued through a concession (or subconcession) granted by the government to private companies). All existing concessionaires and subconcessionaires (gaming operators) for the operation of games of chance and fortune in casinos in Macao are private companies incorporated in Macao and are subject to Macao laws and regulations.
iv Offshore gambling
Macao authorities do not actively engage in activities to stop offshore gambling operators. However, there are certain control mechanisms in place. The advertising of gaming activities (onshore or offshore) is prohibited and is subject to administrative fines.
II LEGAL AND REGULATORY FRAMEWORK
i Legislation and jurisprudence
The legal framework for lotteries and pari-mutuel betting comprises the following:
- Ordinance No. 27/86/M, dated 1 February 1986;
- Law No. 12/87/M, dated 17 August 1987 (instant lottery);
- a concession contract between Macao and the Wing Hing Lottery Company for the operation of Chinese lotteries, dated 24 August 1990 and extended to 31 December 2017 (Chinese lotteries);
- Ordinance No. 163/90/M, dated 27 August 1990 (horse racing);
- Ordinance No. 138/98/M, dated 5 June 1998 (sports lottery – football);
- Chief Executive Order No. 62/2000, dated 27 April 2000 (sports lottery – basketball); and
- a concession contract between Macao and Companhia de Corridas de Galgos Macau (Yat Yuen) for the exclusive operation of greyhound races in Macao. The concession contract has been consecutively renewed by the Macao government and its current term was extended in December 2016 to 20 July 2018.
The following legislation is applicable to games of chance and fortune in casinos:
- Article 8 of Law No. 4/89/M (the Advertisement Law) prohibits the advertising and publicising of games of chance and fortune.
- Article 1171 of the Macao Civil Code establishes that gaming and betting are sources of civil obligations, as opposed to the previous regime where they were only natural obligations (valid and enforceable in Macao courts) if certain legal requirements are fulfilled (e.g., the activities must occur in authorised gaming areas and must follow approved gaming formats and specific rules). If the legal requirements are not fulfilled, the gaming and betting will be considered illegal, and gaming debts will not be enforceable.
- Law No. 16/2001 (the Macao Gaming Law) sets the general framework for the operation of games of fortune or chance in (land-based) casinos.
- Administrative Regulation No. 26/2001 provides the terms and conditions of the public tender organised to grant concessions to operate games of fortune or chance in land-based casinos.
- Administrative Regulation No. 6/2002 establishes the rules for the licensing of gaming promoters (junkets). This regulation was amended by Administrative Regulation No. 27/2009, dated 10 August 2009, which established a new set of requirements for the payment of commission or another type of remuneration owed to gaming promoters;
- Administrative Regulation No. 34/2003 establishes the Gaming Inspection and Coordination Bureau (DICJ), which is the regulatory authority responsible for monitoring and supervising gambling activities in Macao.
- Law No. 5/2004 (the Gaming Credit Law) establishes the legal framework for the issuance of credit facilities for gaming in Macao casinos.
- Law No. 10/2012 establishes the legal framework for entering, working in and gambling in Macao casinos and gaming areas. It also establishes the procedure for exclusion and self-exclusion from Macao casinos and gaming areas.
- Administrative Regulation No. 26/2012 sets the technical standards of slot machines and other related gaming equipment, as well as the legal framework for the registration of gaming machines suppliers.
- DICJ Guidelines – occasionally, the DICJ releases instructions and guidelines on certain specific issues related to casino operations. The DICJ has released guidelines on topics such as anti-money laundering, responsible gaming, gaming promoters' commission cap and accounting requirements, technical specifications of gaming machines and casino internal risk control measures. These instructions and guidelines are mandatory and applicable to all gaming operators in Macao and, despite the fact that they do not carry the same weight as applicable laws, penalties may be enforced if they are infringed.
- Concession contracts – casino gaming concession contracts detail the rights and obligations of the gaming operators in accordance with the applicable legal framework, and the existing contracts (three concessions and three subconcessions) establish the general and specific obligations that gaming operators must perform. One of the most relevant clauses established in the contracts is that all legal disputes arising from the contracts shall be exclusively governed and resolved under Macao law and in Macao courts – the Macao legal system cannot be bypassed by the laws and courts of other jurisdictions.
ii The regulator
In Macao, the official entity with powers to provide guidance and assistance to the Chief Executive on the definition and execution of the economic policies applicable to the operation of casino games or other ways of gaming, such as pari-mutuel betting, is the DICJ.
As established under the law defining and setting the DICJ legal framework (Administrative Regulation No. 34/2003), its main responsibilities include:
- examining, supervising and monitoring the activities of gaming operators, especially regarding their compliance with legal, statutory and contractual obligations;
- examining, supervising and monitoring the eligibility and financial capability of the gaming operators or any other parties defined under applicable laws;
- collaborating with local government in the process of selecting locations and issuing authorisations and classifications of casino games or any other types of gaming-related operations;
- authorising and certifying all the gaming equipment and utensils used by gaming operators under each concession contract;
- issuing licences and guidelines for casino gaming promoters;
- inspecting, supervising and monitoring the activities of the gaming promoters, especially regarding their compliance with the legal, statutory and contractual obligations, and other responsibilities stipulated under applicable legislation;
- inspecting, supervising and monitoring the suitability of the gaming promoters (individuals or corporations), as well as their partners and principal employees and collaborators;
- investigating and sanctioning any administrative breaches by any gaming operator, gaming promoter or any other relevant entity or individual, in accordance with the applicable legislation or guidelines;
- ensuring that there is a good working relationship between the major gaming industry stakeholders (i.e., gaming operators, the government and the public), making the best efforts to ensure that they are all in compliance with the existing regulations that protect the interests of Macao; and
- executing any other guidelines and duties of a similar nature to those outlined above according to the Chief Executive's orders or legal provisions.
iii Remote and land-based gambling
Online gaming is not allowed to be operated in Macao. Gaming in casinos is restricted to land-based venues.
iv Land-based gambling
The operation of games of chance and fortune is restricted to land-based casinos and slot-machine parlours. Betting and lottery shops are operated outside casino premises, and greyhound races are installed in appropriate venues.
v Remote gambling
The existing gaming concessions and subconcessions do not grant the gaming operators the right to operate any form of online game as they are exclusively granted for the operation of games of fortune in land-based casinos. Furthermore, despite the limitation imposed by the concession (and subconcession) contracts, Law No. 16/2001 also establishes under Article 4 that online gaming licences (which are also granted by means of a concession contract to be entered into between the government and a selected concessionaire) are autonomous and separated from of the concessions for the operation of games of chance and fortune in land-based casinos. Until now, this possibility had not been regulated and there is no government authorisation to operate online games.
Despite the restrictions mentioned above with regard to operating online games in Macao, residents are permitted to register themselves on online gaming platforms or websites located overseas. There are no current plans to implement measures to block residents' access to such platforms or websites.
vi Ancillary matters
Manufacturers and suppliers of gaming machines and all related equipment doing business in Macao and to be operated in Macao casinos must obtain proper authorisation from the DICJ, which will conduct suitability and technical assessments under the requirements established by Administrative Regulation No. 26/2012.
The legal framework setting the technical standards and supply requirements of gaming machines and related equipment to be installed in Macao casinos (or other authorised gaming venues) is established under Administrative Regulation No. 26/2012. Under this regulation, the gaming machine suppliers and manufacturers, and their shareholders and directors, are also subject to a suitability assessment to be carried out by the DICJ. Licensed manufacturers from specific major gaming jurisdictions (Nevada, New Jersey, Mississippi, Australia, New Zealand, United Kingdom and Singapore) may submit a formal request to waive such procedure.
There are no laws and regulations establishing a legal framework for any forms of remote supply, technology support or machines.
vii Financial payment mechanisms
At the time of writing, Macau legislators and regulators have not passed any legislation regarding the payment mechanisms but the use of cryptocurrencies, and bitcoin in particular, have been strongly and expressly discouraged by the local authorities for any payments and casino payments, are not excluded from this.
III THE LICENSING PROCESS
i Application and renewal
According to the current legal framework, the candidates to the public tender for granting a gaming concession must be companies incorporated in Macao with a permanent Macao resident as managing director, who must own at least 10 per cent of the share capital of the candidate company.
As there are already three concessionaires and three subconcessionaires, unless Law 16/2001 is amended, it is currently not possible to open any public tender for casino gaming concessions, which means that it is not possible to apply for any sort of gaming licence concession or subconcession in Macao. That said, the requirements outlined below refer to the only international public tender opened in 2001 by the Macao government for the issuance of existing gaming concessions.
According to the law, the candidates to the public tender for granting a gaming concession must be companies incorporated in Macao with a permanent Macao resident as managing director, who must own at least 10 per cent of the share capital of the candidate company.
In addition, the main shareholders of the tender candidates (holding 5 per cent of more of the share capital), their directors and main employees (holding relevant positions in operations) must be subject to an official procedure to verify their suitability for the role.
Another critical aspect is the demonstration of the financial capacity of the tender candidates. This must be established by proper guarantees of sufficient financial coverage of the financial investment by tender candidates, which may be provided either by financial institutions or by the candidate's main shareholders. This financial capacity must be maintained throughout the period of the gaming concession and, therefore, is subject to the continuous control and supervision of the DICJ.
Suitability requirements are important restrictions for candidates placing a bid under a public tender for a gaming concession, but they are not limited to the tender stage – successful candidates must continue to meet the requirements for the duration of the concession (20 years). Articles 14 and 15 of Law No. 16/2001 state that experience, reputability and suitability are mandatory requirements for all concession holders, as well as their financial capacity.
Likewise, all directors and shareholders holding at least 5 per cent of the gaming operator's share capital, as well as its key employees, will be continuously subject to suitability monitoring by the DICJ. Besides, the scope of activity of the gaming operators shall be restricted to the operation of games of chance and fortune in casinos. Gaming operators are, therefore, prevented from carrying out other types of activities.
Moreover, according to Law No. 16/2001, gaming operators are not allowed to operate with capital that is below 200 million patacas.
Competitive restraints are also placed upon gaming operators, which, among other things, prohibit anticompetitive agreements and practices among the gaming operators or companies from the same groups, as well as the abuse of dominant position and the control of shareholdings. As a consequence of the latter, gaming operators and the shareholders holding at least 5 per cent of the corporate capital cannot, directly or indirectly, hold 5 per cent or more of the capital of other operators.
Law No. 16/2001 also defines Macao as a 'continuous gaming zone' jurisdiction, which means that its casinos are supposed to operate 365 days a year, 24 hours a day and suspension of activity can only occur in very exceptional cases that require prior government approval. The operation of games of chance and fortune should only take place in an authorised land-based casino, despite the possibility of such activity being carried out on-board ships or aircraft duly registered in Macao after obtaining necessary government approval. Another exception would be having government approval to operate gaming activities at the customs-cleared area of Macao International Airport, though this has not happened yet.
Unless the current legal framework is amended by the relevant authorities, the granting of casino gaming licences (concessions and subconcessions) is subject to an international public tender process to be put forward by the government. The public tender for casino gaming concessions is mainly regulated by Administrative Regulation No. 26/2001, as amended. This Regulation held particular significance when it was enforced because it stated the casino gaming concessions' tender rules and the requirements of the tender bids of the 2001–2002 tender process. The Regulation is still in force and the rules established by it are applicable to the new international public tender process.
With regard to public tenders, Regulation No. 26/2001 establishes the basic rules for granting a casino gaming concession, creating certain legal requirements regarding the suitability and financial capacity of the candidates, as well as the legal procedure to check and evaluate the technical quality and financial soundness of the gaming investments and development projects submitted. Further, the regulation has also established that the concessionaires would have to pay a premium in exchange for the granting of each casino gaming concession, which would have to take in account the size of each gaming operation and investment.
Eligible candidates must be Macao-incorporated companies with a minimum capital share of 200 million patacas and with Macao permanent residents as managing directors.
At the time of writing, and despite there already being an indication that the new tender will take place, it is known that current concessions (SJM, Galaxy and Wynn) and subconcessions (MGM, Venetian and Melco) are going to expire in 2022 .
In terms of concession time limits, Article 13 of Law No. 16/2001 states that the term of a gaming concession shall be set under the concession contract entered into between each concessionaire (and subconcessionaire) and the government, provided that the term does not exceed 20 years.
In cases like SJM (and MGM) in which the gaming concession and subconcession has been granted for a shorter period of time – 18 years only – the government has extended, on 15 March 2019, the two contracts until 26 June 2022, in line with the other contracts.
It is expected that this decision of the government (taken approximately one year before the end of the concession and subconcession on 31 March 2020) will bring stability to the market. Also, it is now clear that a new public bid is being considered, despite the possibility that the government will extend all concession and subconcession contracts by up to five years (i.e., up to 26 June 2027).
The termination of the gaming concession and subconcession may occur by way of government initiative in cases of severe breach of concession agreement provisions and in cases of severe infringement of any other legal provisions governing the underlying activity, such as applicable rules, regulations and DICJ Guidelines or for reasons of public interest.
ii Sanctions for non-compliance
Article 29 of the Macao Basic Law and Article 1 of the Macao Criminal Code establish the 'principle of legality', which means that in Macao every criminal offence must be stated in legislation. Gaming-related crimes are not an exception and the legislation setting out the criminal offences strictly related to or arising from gaming activities is set out below.
- Law No. 8/96/M (the Illegal Gambling Law) sets the punishments for a significant number of gaming-related activities.
- Law No. 9/96/M (the Law on Criminal Offences in Animal Racing) sets the punishments for activities related to animal race betting.
- Law No. 6/97/M (the Law on Organised Crime), partially revoked, defines what shall be considered as criminal association and sets the punishments applicable to activities carried out by individuals who are part of criminal organisations.
- Law No. 2/2006 (the Anti-money Laundering Law) sets the legal framework and the punishments applicable to individuals involved with financial operations related with money laundering crimes.
- Law No. 3/2006 (the Anti-terrorism Financing Law) sets the legal framework and the punishments for individuals involved in financial operations related to the financing of terrorism.
- Administrative Regulation No. 7/200 sets the Preventive Measures for the Crimes of Money Laundering and Financing of Terrorism in Macao.
- Law No. 6/2016, on the enforcement of freezing of assets, sets the legal framework to enforce UN Security Council sanctions involving the freezing of assets and funds of identified terrorists.
- Guideline No. 1/2016 – the DICJ instruction on anti-money laundering and combating of the financing of terrorism for the gaming sector – sets the procedures to be applied under casino-related financial operations and the procedures to be followed by casino cages and Macao licensed gaming promoters.
Over the years, continuous efforts have been made to combat money laundering in Macao. Aside from the main anti-money laundering framework, which consists of Law No. 2/2006 (the Anti-Money Laundering Law) and Administrative Regulation No. 7/2006 (preventive measures for the crimes of money laundering and financing of terrorism), since 2015 the DICJ has set higher standards for anti-money laundering compliance by introducing new accounting requirements to be observed by gaming promoters and new guidelines (Guidelines No. 1/2016) applicable to gaming operators and promoters, and introducing a risk-based approach and enhance customer due diligence procedures, requiring, among others, the identification of patrons and reporting of suspicious and high-value gaming-related transactions – equal to or greater than 500,000 patacas.
It is widely known that money laundering is a very serious concern worldwide and based on the recent approach and declaration of Macao officials it has became an important objective to local authorities. Therefore, with the enactment of new guidelines and legislation intended to be implemented by gaming operators and gaming promoters, an important step has been taken for stricter compliance with the recommendations made by the Asia/Pacific Group on Money Laundering in the last review of Macao legislation, which occurred in November 2016.
Virtual currencies cannot be used for gaming activities in Macao.
A tax obligations and compulsory levies regime is established under the applicable laws (for gaming operators and promoters) and under the concession and subconcession contracts.
Article 27 of Law No. 16/2001 provides that gaming operators are required to pay the government a special gaming tax corresponding to 35 per cent of the gross gaming revenue, which shall be paid on a monthly basis up to the 10th day of each month.
In addition to the special gaming tax, gaming operators are required to pay the government an additional 1.6 per cent of their gross gaming revenue to the Macao Foundation, a local public foundation that promotes cultural, scientific, social, economic and educational development of the region. Gaming operators are also required to pay an amount equivalent to 2.4 per cent of their gross gaming revenue for urban development, tourism promotion and social security purposes. This percentage is mandatory for all gaming operators, with the exception of SJM, which also pays the same 1.6 per cent to the Macao Foundation, but only 1.4 per cent goes to urban development, tourism promotion and social security purposes because of other obligations entered under the concession contract.
Moreover, pursuant to Article 20 of Law No. 16/2001, concession and subconcession agreements provide for the obligation of paying the government an annual premium for the concession and subconcession that it is divided into two different amounts: a fixed amount of 30 million patacas for all gaming operators; and a flexible amount that varies in accordance with the number of table games and electronic gaming machines operated by each gaming operator.
Gaming operators are therefore required to pay 300,000 patacas annually for each VIP table in addition to the fixed amount of 30 million patacas referred to above, as well as 150,000 patacas for each table game allocated on the mass market floors and 1,000 patacas for each gaming machine installed on the relevant gaming floors (including slot-machine parlours separately operated by some gaming operators).
Theoretically, the gaming operators would be also subject to the payment of corporate taxes up to a maximum of 12 per cent of their annual profits (complementary tax). However, because of the considerable amount that has been paid to Macao as special gaming tax and additional contributions to entities such as the Macao Foundation, gaming operators have been gradually released from paying corporate tax on their profits.
Gaming promoters are also subject to pay a special tax that is calculated based on the commission paid to them by the gaming operators. This tax corresponds to 5 per cent of the amount received as commission or other compensation paid to gaming promoters by the gaming operators.
VI ADVERTISING AND MARKETING
Under Law No. 16/2001 gaming concessionaires must carry out games of chance and fortune in casinos.
Thus, concession (and subconcession) holders can only provide the services described by Law No. 16/2001 and stated in the concession agreement. Therefore, table games and game machines (e.g., slot machines) can only be offered inside land-based casinos and other authorised venues (such as slot-machine parlours duly authorised by the DICJ), whereas horse racing, greyhound racing and sports betting are offered outside these authorised venues.
In fact, under the provisions of Macao laws and regulations, sports betting, pari-mutuel betting and animal racing do not qualify as games of chance and fortune. According to Law No. 16/2001 it is not legal to offer pari-mutuel betting or operations offered to the public (lotteries) in a casino environment (i.e., in duly authorised gaming areas, although this prohibition does not extend to the building where the casino is installed), even though the same piece of legislation provides that lotteries may be exploited by casinos upon the authorisation of the Secretary for Economy and Finance, provided that the relevant concession contract has been amended accordingly.
Essentially, gaming operators are able to offer, without exception, all table games referred to under Law No. 20/2001 as well as other games duly authorised and regulated by the government, and several types of gaming machine, which shall be also subject to the government's prior approval. The type of games not covered by casino concessions and subconcessions are: pari-mutuel betting (horse racing and greyhound racing); operations offered to the public (sports betting and lotteries); and interactive casino games (i.e., online games), which are not regulated in Macao.
With respect to gaming promotion and advertising, the Macao authorities have a very conservative approach. Under the Advertisement Law (enacted in 1989), games of chance and fortune cannot be advertised if the game is the main focus of the advertisement. This would, in principle, allow gaming operators to advertise providing that this is not the case. However, in practice, local authorities strongly discourage all gaming operators and promoters from launching advertising and promotional campaigns outside authorised gaming areas. For example, it would be allowed within the integrated resort area where the casino is located, but not elsewhere.
This appears to be in conflict with some of the concessions and subconcessions entered into between gaming operators and the government, which require operators to conduct advertising and marketing campaigns both in Macao and abroad.
VII THE YEAR IN REVIEW
Pursuant to the official ban on the use of mobile phones at betting tables, the government plans to introduce tougher penalties for violations of legislation in the gaming industry in the near future. The DICJ announced that it will 'complete supplementary laws for violations and related penalties that weren't previously included, amend outdated rules, and bring in new regulations'.
The government is also trying to pass some amendments that, despite not being exclusively related to gaming, will have a significant impact on the Macao gaming industry. For example, in early 2016, the government announced the possibility of imposing a total smoking ban in local casinos. This would make Macao the only major gaming jurisdiction in the world where smoking in casinos would be completely forbidden. The proposal includes casino premises and the existing airport-style smoking lounges. However, Macao gaming operators and some members of the legislative assembly believe that this could strongly harm the gaming industry. According to the latest version of the proposed amendment, the government will allow the casinos to install smoking lounges on their premises but smoking outside these lounges will be strictly forbidden.
On 15 March 2019, the government decided to extend the concession and, consequently, the subconcession of SJM and MGM. It is a long-awaited decision, as in mid 2018 SJM top officials mentioned that they were waiting for the application to be approved.
It is a natural decision vis-à-vis what the concession and subconcession contracts stipulated and completely in accordance with its terms and the gaming law.
Such extension is valid until 26 June 2022, which shall now be considered as the term for all concessions and sub-concessions.
Article 13,2 of the Law 16/2001 (the Macao Gaming Law) states and determines that if a concession is granted for a period shorter than 20 years the government may extend once or more times, at any time within six months prior to the term of such concession, provided that the total term does not exceed 20 years.
Under the Macao Gaming Law, different legal solutions were envisaged for SJM's casino gaming concession and MGM's subconcession contract, which were due to expire in 2020, and for all other concessions (Wynn and Galaxy) and subconcessions contracts (Melco and Venetian) due to expire in 2022.
It shall be noted that once the maximum term allowed under the Macau Gaming Law is reached, Macao's Chief Executive may decide to extend the concessions by up to five years (applicable to the casino gaming subconcessions contracts).
The decision taken on 15 March 2019 aims, first, the uniformisation of the terms, which shall benefit the preparatory works to the development of a new public bid for the gaming concessions. Such uniformisation may contribute to the stability of the market and of the employment. The major part of the active population works to gaming operators or to companies with links with the gaming industry.
For the extension of both contracts, SJM and MGM shall pay, at once, the amount of 200 million patacas. Other obligations include the mandatory inclusion of the two companies in the social security regime and constitute a guarantee of labour credits within three months of the execution of the amendment to the concession and subconcession contracts.
In conclusion, it is expected that this government decision (taken approximately one year before the end of the concession and subconcession on 31 March 2020) will bring stability to the market. Another remark is that it is now clear that a new public bid is being considered, despite the possibility that the Macau Government will extend all concession and subconcession contracts by up to five years (i.e., until 26 June 2027).
Other legislation related to the operation of gaming promotional activity may also be enacted, continuing the authorities' efforts to set international operating standards for such activity and for entities performing such business.
Additionally, it is also expected that legislation setting up a list of penalties to be applicable in case of breach of applicable laws and concession contracts, as well as a more detailed legal framework on matters involving corporate social responsibility or the use of gaming chips, may be also enacted in Macao after the granting of the new gaming concessions.
1 Pedro Cortés is a senior partner and Óscar Alberto Madureira is a senior associate at Rato, Ling, Lei & Cortés, Advogados e Notários.