Dispute resolution in the 34th America's Cup / Henry Peter (ed.) ; David Tillett, John Doerr, Josje Hofland, Graham McKenzie, Hamish Ross, Bryan Willis.
2016
K3702 .D57 2016 (Map It)
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Details
Title
Dispute resolution in the 34th America's Cup / Henry Peter (ed.) ; David Tillett, John Doerr, Josje Hofland, Graham McKenzie, Hamish Ross, Bryan Willis.
Published
Alphen aan den Rijn : Wolters Kluwer : Kluwer Law International, [2016]
Distributed
Frederick, MD : Aspen Publishers, Inc.
Call Number
K3702 .D57 2016
ISBN
9789041152589 (hd. bd.)
904115258X (hd. bd.)
904115258X (hd. bd.)
Description
xxvii, 833 pages : illustrations ; 25 cm
Other Standard Identifiers
9789041152589
System Control No.
(OCoLC)939389585
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Variant Title
Dispute resolution in the thrity-fourth America's Cup
Table of Contents
Editor
v
Contributors
vii
List of Abbreviations
xxiii
Acknowledgment
xxvii
1.
Introduction
1
1.1.
Book
1
1.2.
Historical background
3
1.2.1.
History
3
1.2.2.
Dispute Resolution Before the 34th America's Cup
5
1.3.
34th America's Cup Jury
7
1.3.1.
brief overview of the 34th America's Cup
7
1.3.2.
Chairman's Overview
12
1.3.3.
'Rule 69' and 'Protocol Article 60' Cases (Cases AC31 and AC33 respectively)
16
1.3.4.
Sailing Jury Decisions and Red Bull Series
21
1.3.5.
AC45 World Series
23
1.3.6.
Mediation and Jury Cases AC24 and AC25
27
1.4.
Future of the America's Cup
32
1.4.1.
35th America's Cup
32
1.4.2.
Protocol Governing the 35th America's Cup
33
1.4.3.
Venue
34
1.4.4.
Commercial Rights
34
1.4.5.
Dispute Resolution
35
1.4.6.
Neutral Management
36
1.4.7.
Nationality of Crew
36
1.4.8.
Construction in Country
37
1.4.9.
Summary
37
2.
Deed of Gift (24 October 1887)
39
3.
Protocol Governing the 34th America's Cup, Incorporating Amendments 1 through 19 (Consolidated Version 2 September 2013)
43
4.
Rules of Procedure
95
4.1.
Jury Rules of Procedure (Published 25 May 2011, as Amended on 22 May 2013)
95
4.2.
Jury Guidelines for the Award of Costs and Expenses (Published 13 August 2011)
103
4.3.
Jury Guidelines for the Dissemination of Information (Issued pursuant to Rule 7.3 of the Jury Rules of Procedure) (20 April 2012)
105
5.
Other 34th America's Cup Governing Documents
107
5.1.
ISAF
107
5.1.1.
ISAF Racing Rules of Sailing - America's Cup Edition (Version 1.19 - August 2013)
107
5.2.
Measurement Committee
139
5.2.1.
AC45 Class Rule (Version 1.1 - 11 November 2011)
139
5.2.2.
AC72 Class Rule (Version 1.1 - 30 July 2013)
169
6.
34th America's Cup Jury Decisions
213
6.1.
ACO1AR: Request for interpretation of the term 'constructed in country'
215
6.1.1.
JNO01 - Directions 1 (10 March 2011)/Inviting Responses
215
6.1.2.
JNO02 - Directions 2 (18 March 2011)/Suspension of Case pending Protocol change
219
6.1.3.
JNO03 - Decision (25 March 2011)/Case closed due to change of Protocol
220
6.2.
ACO2 ETNZ v. GGYC: Validity of accepting Notices of Challenge
222
6.2.1.
JNO04 - Directions 1 (30 May 2011)/Inviting Responses
222
6.2.2.
JNO05 - Directions 2 (2 June 2011)/Inviting Response from GGYC
224
6.2.3.
JNO06 - Decision and Directions 3 (19 June 2011)/Decision on Validity and Inviting Responses
226
6.2.4.
JNO07 - Decision (6 July 2011)/No fault with GGYC appointing KSSS as CoR
230
6.3.
AC03 ACEA v. ETNZ: Breach of Protocol Article 51.1. Failure to use AC website
238
6.3.1.
JNO08 - Mediation Directions 1 (22 July 2011)/Jury agreement to mediation
238
6.3.2.
JN009 - Mediation Directions 2 (11 August 2011)/Agreement to adjourn to 30 September
242
6.3.3.
JNO12 - Mediation Statement (5 October 2011)/Offer to continue Mediation
245
6.3.4.
JNO15 - Closure (6 December 2011)/Case closed to satisfaction of parties
248
6.4.
ACO4 Aleph: Request for redress for an error by the Race Officer. Towing advertising floats onto the course in the path of Aleph and Regatta Director Request for redress for an error by the Race Officer. Towing advertising floats onto the course in the path of Aleph
250
6.4.1.
JNO10 - Redress Decision (11 August 2011)/Aleph's request denied. RD's request granted. Aleph's elapsed time reduced by 10 seconds
250
6.5.
AC05 ACRM/RD v. Aleph, GC, AR: Two related incidents resulting in damage to three boats. Umpires penalised GC on the water for both incidents
255
6.5.1.
JNO11- Decision (23 September 2011)/Award of Costs against GC
255
6.5.2.
JNO16 - Directions (7 December 2011)/Revised Quantum and Inviting submissions on request to reopen
260
6.5.3.
JNO19 - Directions 2 (13 December 2011)/Inviting GC to Reply to Responses
263
6.5.4.
JN022 - Directions (23 December 2011)/Decision not to reopen
265
6.6.
AC06 OTUSA: Request for interpretation of Protocol to ensure a possible agreement with a Challenger or Defender Candidate is compliant with the Rules that govern the Event
268
6.6.1.
JN013 - Directions 1 (18 November 2011)/Inviting Responses and Reply
268
6.6.2.
JN017 - Directions 2 (9 December 2011)/Inviting further responses
269
6.6.3.
JNO18 - Directions 3 (12 December 2011)/Extension of deadline for responses
271
6.6.4.
JN024 - Decision (28 December 2011)/Answer to 8 questions - cooperation and SY
272
6.7.
AC07 AR v. ETNZ, LR: Planned cooperation agreement ETNZ-LR causing possible violation of Protocol
281
6.7.1.
JNO14 - Directions (18 November 2011)/On-hold not Inviting Responses
281
6.7.2.
JN026 - Directions 2 (14 January 2012)/Inviting Responses and Reply
282
6.7.3.
JN029 - Directions 3 (26 January 2012)/Confidentiality Order to Submit agreement
284
6.7.4.
JNO30 - Receipt of agreement (27 January 2012)/Notification of Compliance by ETNZ/LR
289
6.7.5.
JN032 - Decision (13 February 2011)/ETNZ and LR agreement is compliant with Protocol
290
6.7.6.
JN034 - Costs (2 March 2012)/Costs awarded one third each to AR/ETNZ /LR €5400
295
6.8.
AC08 ETNZ: Request for interpretation of the term 'Surrogate Yacht'/LOA
299
6.8.1.
JNO20 - Directions (14 December 2011)/Inviting Submissions
299
6.8.2.
JN023 - Decision (28 December 2011)/Determination of LOA-excluding fittings
300
6.9.
AC09 ETNZ: Request for interpretation of Protocol Article 5.2 voting procedures and in particular relating to Protocol Amendments under Article 14.1
303
6.9.1.
JNO21 - Directions 1 (21 December 2011)/Inviting Responses
303
6.9.2.
JN025 - Decision (9 January 2012)/Voting rights for AC72 events
304
6.10.
AC10 CT: Request for interpretation regarding the use of crew that sail in Extreme 40 events
311
6.10.1.
JN027 - Directions 1 (14 January 2012)/Directions Inviting Responses and Reply
311
6.10.2.
JNO31 - Decision (9 February 2012)/Extreme 40's do not create surrogate Yachts
312
6.11.
AC11 OTUSA: Request for clarification Jury Decision in AC06 regarding common design input and training with another Competitor
316
6.11.1.
JN028 - Directions (22 January 2012)/Inviting Responses and Reply
316
6.11.2.
JN033 - Decision (20 February 2012)/Responses to questions from OTUSA. Creation of surrogate yacht
319
6.11.3.
JN035 - Cost Award (2 March 2012)/No costs awarded - flawed Protocol
328
6.12.
AC12 ACRM v. GC: Failure to pay costs as awarded in AC05
330
6.12.1.
JN036 - Directions (4 March 2012)/Final time for GC to pay
330
6.12.2.
JN037 - Directions (3 April 2012)/Further time for GC to pay
333
6.12.3.
JN038 - Closure (17 April 2012)/Acknowledges withdrawal of RCNV-GC
339
6.13.
AC13 AR: Request for review and clarification of Jury Decision in AC11 (in particular paragraph 21), AC07 and AC06
346
6.13.1.
JN039 - Directions 1 (29 May 2012)/Inviting Responses and Reply
346
6.13.2.
JNO40 - Directions 2 (31 May 2012)/Inviting Responses and Reply - Revised Dates
348
6.13.3.
JNO41 - Partial Decision (4 July 2012)/Dismissal under Protocol 3(b) notice of oral hearing on clarification
349
6.13.4.
JN042 - Directions 3 (22 July 2012)/Cancelling oral hearing - submissions by 31 July
355
6.13.5.
JN047 - Confirmation of decision (27 August 2012)/Included 'observation' under 33.4
358
6.13.6.
JN049 - Costs (14 September 2012)/AR to pay €10,000
363
6.14.
AC14 ACRM v. CT: Appeal against fine imposed by RD for failure to pay fine due to failure to compete in Newport ACWS regatta
366
6.14.1.
JN043 - Directions 1 (7 August 2012)/Confidentiality and direction to pay or appeal
366
6.14.2.
JN044 - Directions 2 (10 August 2012)/Due to appeal payment to be held in trust. Submissions invited
369
6.14.3.
JN046 - Decision (26 August 2012)/Appeal dismissed. Restructuring Team is not outside their control
375
6.14.4.
JN048 - Costs & Confidentiality (14 September 2012)/Award of costs against CT of $9,000
386
6.14.5.
JN063 - Lifting confidentiality (13 January 2013)/And releasing a number of associated JNs
389
6.15.
AC15 Regatta Director v. BAR: Failure to comply with RRS AC 56
391
6.15.1.
JN045 - Decision (23 August 2012)/Protest upheld - results stand
391
6.16.
AC16 ETNZ v. MC: MC effectively amended the Class Rule and therefore exceeded its jurisdiction when it issued PI 22 requiring dagger boards to be fully down when calculating displaced volume of canoe bodies
396
6.16.1.
JNO50 - Directions 1 (24 September 2012)/Inviting responses and Reply
396
6.16.2.
JNO51 - Decision (7 October 2012)/PI 22 to be withdrawn, 1,4(k) may be determined with boards up
398
6.17.
AC17 LR v. ACEA: ACEA Change of location requirements for the village and team bases and associated costs
408
6.17.1.
JN069 - Final Agreement (7 April 2013)/Team Base Arrangements agree. OTUSA pier 80, AR Alameda, LR/ ETNZ pier 30/32
408
6.18.
AC18 AR v. Jury: The Jury effectively amended the Class Rule and therefore exceeded its jurisdiction when it issued its Decision in Jury Case AC16
411
6.18.1.
JN052 - Directions 1 (24 October 2012)/Inviting Responses and Reply
411
6.18.2.
JN054 - Decision (23 November 2012)/Jury did not change a class rule
413
6.18.3.
JN057 - Costs (6 December 2012)/AR to pay €10,000>
418
6.19.
AC19 LR v. OTUSA: Illegal reconnaissance and a violation of Protocol Article 37.2(g)
420
6.19.1.
JN053 - Directions 1 (21 November 2012)/Inviting Responses and Reply - Costs and Penalties Later
420
6.19.2.
JN056 - Dissemination of Info (30 November 2012)/Details of case in public
422
6.19.3.
JN058 - OTUSA Letter (15 December 2012)/Restricting the case to the one protest filed
423
6.19.4.
JN059 - Decision Photos and Costs (18 December 2012)/OTUSA broke Protocol 37.2(g), surrender photos, cost/penalty submissions requested
424
6.19.5.
JNO60 - Cost and Penalty (29 December 2012)/OTUSA to pay €11,500> costs - no sailing for 5 days
430
6.20.
AC20 LR v. GGYC, ACEA, Regatta Director: Cancellation of ACWS Venice 2013 and inclusion of two events in the USA at the end of May 2013 was not Protocol compliant
433
6.20.1.
JN055 - Directions 1 (28 November 2012)/Inviting Responses and Reply
433
6.20.2.
JNO61 - Decision (2 January 2013)/Out of time re NY. Jury cannot interfere re Venice
435
6.20.3.
JN062 - Costs Decision (12 January 2013)/LR to pay €10,500
441
6.21.
AC21 OTUSA: Request for clarification as to the meaning of Protocol Article 35 in relation to boats on the water fulfilling functions such as emergency stand-by and observation of other Competitors
443
6.21.1.
JN065 - Directions 1 (22 February 2013)/Responses invited from teams with AC72 yachts
443
6.21.2.
JN066 - Decision (19 March 2013)/Interaction with the Yacht is not required for a boat on the water to be 'supporting'
445
6.21.3.
JN068 - Costs (3 April 2013)/OTUSA to pay €2,000
450
6.22.
AC22 OTUSA: Request for clarification as to the meaning of Protocol Article 28.2 - 'Racing period' at the time of ACWS events
452
6.22.1.
JN067 - Directions 1 (23 March 2013)/Inviting submissions
452
6.22.2.
JNO70 - Decision (8 April 2013)/Racing period, Assembly and Construction - not testing
454
6.23.
AC23: ACRM v. All Competitors The RD requested the Jury to mediate the implementation of the safety recommendations following the tragic incident in May 2013
460
6.23.1.
JNO71 - Mediation (12 June 2013)/Information regarding mediation
460
6.24.
AC24 ETNZ v. Regatta Director: The RD has exceeded his jurisdiction by introducing amendments to the Class Rule via RN 189 without the unanimous consent of the Competitors
462
6.24.1.
JN072 - Directions 1 (29 June 2013)/Inviting Responses and Reply
462
6.25.
AC25 LR v. Regatta Director: The RD has exceeded his jurisdiction and authority by issuing RN188 and RN189
464
6.25.1.
JN073 - Directions 1 (4 July 2013)/Inviting Responses and Reply
464
6.25a.
AC24-AC25 (consolidated)
466
6.25a.1.
JNO73a - Hearing information (7 July 2013)/Details of hearing arrangements
466
6.25a.2.
JN074 - Decision (11 July 2013)/Protest upheld - RN 189 to be withdrawn
467
6.25a.3.
JN075 - Clarification (15 July 2013)/Confirming that class rule changes approved as per CR4 since RN189 remain
497
6.25a.4.
JN087 - Costs (31 July 2013)/General application, no costs
498
6.26.
AC26 ACEA v. LR: Failure to participate in Special Events, attending the LV opening party and displaying their AC45
500
6.26.1.
JN076 - Directions (17 July 2013)/Inviting Responses and Reply
500
6.26.2.
JNO80 - Hearing (23 July 2013)/Hearing date, time and location
502
6.26.3.
JN083 - Decision (25 July 2013)/LR breached Protocol 45 with respect to two special Events - Submissions on Penalty and Cost invited
503
6.26.4.
JN089 - Costs (1 August 2013)/LR $70,000 fine payable to 2 charities and $20,000 costs
512
6.27.
AC27 LR v. ACEA: ACEA breached Protocol Article 48.1(d) using amended images of LR for promoting the Event
518
6.27.1.
JN077 - Directions (17 July 2013)/Inviting Responses and Reply
518
6.27.2.
JN082 - Notice of hearing (25 July 2013)/Hearing information
520
6.27.3.
JNO85 - Decision (27 July 2013)/No breach of Protocol. Cost submissions invited
521
6.27.4.
JNO91 - Costs (4 August 2013)/Cost order - LR to pay $14,000. Cost order - ETNZ to pay $10,000
530
6.27.5.
JN094 - Cost Order Correction (6 August 2013)/Only ACEA sought legal advice
533
6.28.
AC28 ETNZ: Questions regarding Defender Candidate Status, Course Access and the requirement to provide telemetry data
534
6.28.1.
JN078 - Directions (18 July 2013)/Inviting Responses and Reply
534
6.28.2.
JN084 - Directions 2 (26 July 2013)/New issues in Reply - time for further Response and Reply
536
6.28.3.
JN088 - Decision (31 July 2013)/Defender SLR access as published schedule. Telemetry only to ACRM/USCG unless racing
538
6.28.4.
JN092 - Cost (4 August 2013)/Cost order ETNZ to pay $ 10,000
553
6.29.
AC29 ACEA v. LR: Cancellation of Team Hospitality Lounge
556
6.29.1.
JN079 - Directions (20 July 2013)/Inviting Responses and Reply
556
6.29.2.
JNO81 - Directions 2 (23 July 2013)/Jurisdiction submissions - Directions 1 suspended
559
6.29.3.
JN086 - Decision Jurisdiction (28 July 2013)/The Jury has jurisdiction
561
6.29.4.
JN090 - Directions (1 August 2013)/Revised Timetable - oral hearing 8 August 2013
569
6.29.5.
JN095 - Hearing Directions (7 August 2013)/Hearing Schedule and Location
572
6.29.6.
JN097 - Closing (12 August 2013)/Case settled before hearing - no cost awards
574
6.30.
AC30 ACRM v. OTUSA: Protest - weight in king posts of AC45s
575
6.30.1.
JN093 - Confidentiality Order (5 August 2013)/All related matter to be confidential to the Parties until further notice
575
6.30.2.
JN096 - Orders (8 August 2013)/Lifting confidentiality order, restore ACWS, OTUSA to return prizes
577
6.30.3.
JN098 - Additional Reports (16 August 2013)/To file original OTUSA report and additional Report from MC on Jurycomms
580
6.31.
AC31 Jury v. OTUSA Team Members: Allegation of Gross Misconduct - deliberate breach of Class Rules
583
6.31.1.
JN101 - Confidentiality Order (19 August 2013)/Confidentiality Order Covering all aspects except the existence of the case
583
6.31.2.
JN103R - Notification (19 August 2013)/Notifications to 6 individuals of allegations under RRS AC 69
585
6.31.3.
JN106 - Directions and Hearing (20 August 2013)/Hearing venue, date and Jury witnesses
588
6.31.4.
JN108R - Hearing continuance (21 August 2013)/Hearing delayed to 26 August, but Directions Hearing on 22 August
589
6.31.5.
JN11OR - Directions & Confidentiality (23 August 2013)/Details on the conduct of the Hearing for AC31
591
6.31.6.
JN114 - Further Directions (28 August 2013)/Regarding the timetable for the Decision and Submissions on Penalties
596
6.31.7.
JN115R - Decision (29 August 2013)/Decision and notice of Hearing on Penalties
598
6.31.8.
JN116 - Decision (3 September 2013)/Decision including Penalties/Four individuals penalized, one warned, one case dismissed
611
6.31.9.
ISAF Review Board (12 September 2013)/Decision on Mr de Ridder's appeal regarding eligibility
630
6.31.10.
ISAF Review Board (3 October 2013)/Further reasons regarding the Decision on Mr de Ridder's appeal
633
6.31.11.
JN123 - Limited lifting of the Confidentiality Order (9 December 2013)/Regarding use of Court Reporter transcript in ISAF disciplinary proceedings
636
6.31.12.
JN124 - Limited lifting of the Confidentiality Order (14 December 2013)/Regarding use of Court Reporter transcript in ISAF disciplinary proceedings
638
6.31.13.
ISAF Disciplinary Commission (22 January 2014)/Liability Decision
640
6.31.14.
ISAF Disciplinary Commission (28 February 2014)/Reconsidered Decision
677
6.31.15.
ISAF Review Board (23 May 2014)/Decision
695
6.31.16.
CAS (8 December 2014)/Arbitral Award
715
6.32.
AC32 ETNZ v. ACRM/ACEA: Length of Leg 2 of the Course
747
6.32.1.
JN099 - Closure (16 August 2013)/Application withdrawn - no costs - case closed
747
6.33.
AC33 Jury v. OTUSA: To determine if OTUSA has breached Protocol Article 60.1 - Bringing the AC into disrepute
749
6.33.1.
JN102 - Notification (19 August 2013)/Jury decision to conduct hearing under Protocol 60
749
6.33.2.
JN107 - Hearing (20 August 2013)/Deferred to 29 August
751
6.33.3.
JN112 - Further Directions (24 August 2013)/MC report and order to ACEA for a report on the effect on the America's Cup
752
6.33.4.
JN113 - Further Directions (28 August 2013)/Hearing date 30 August, witnesses and AC31 transcript
754
6.33.5.
JN117 - Decision (3 September 2013)/60.1 $250,000 fine and lose first two wins in the Match
757
6.33.6.
JN122 - Costs (11 September 2013)/Cost order - OTUSA to pay $30,000
774
6.34.
AC34 Regatta Director v. ETNZ: Transfer of personnel on the race course when not permitted
776
6.34.1.
JN100 - Directions (18 August 2013)/Hearing on 18 August
776
6.34.2.
JN104 - Decision (19 August 2013)/ETNZ broke Protocol 12(d)(iv) transferring crew before termination but no further penalty
777
6.35.
AC35 OTUSA v. LR /ETNZ: Breach of Protocol Article 37.2(a) - trespassing on OTUSA property
781
6.35.1.
JN105 - Directions 1 (19 August 2013)/Hearing to address if actions described could be considered to be trespass
781
6.35.2.
JN109 - Withdrawal of Protest (21 August 2013)/Protest withdrawn at hearing
783
6.35.3.
JN111 - Costs (24 August 2013)/Cost order - OTUSA to pay $5,000
786
6.36.
AC36 ETNZ v. MC: The MC has effectively amended Class Rule 19.1 and therefore exceeded its jurisdiction by issuing PI 54
788
6.36.1.
JN118 - Directions 1 (3 September 2013)/Request for Responses
788
6.36.2.
JN119 - Directions 2 (4 September 2013)/Hearing to be held on 5 September
790
6.36.3.
JN120 - Decision (6 September 2013)/Application out of time - relates to PI 49
792
6.36.4.
JN121 - Costs (11 September 2013)/Cost order - ETNZ to pay $5,000
796
6.37.
JN064 - Jury Lists and Responses (15 February 2013)/Separate Jurycomms72 and OK to submit responses directly to the Jury
798
7.
Judicial Decisions
799
7.1.
New York Supreme Court Decision regarding the Rejection of African Diaspora Maritime Corporation Application to compete to be a Defender in the 34th America's Cup (18 January 2013)
801
7.2.
New York Supreme Court, Appellate Division Decision regarding the Rejection of African Diaspora Maritime Corporation Application to compete to be a Defender in the 34th America's Cup (25 June 2013)
814
Index
831