Arbitration ambiguity – check out Jack Griffin’s AC newsletter below…

21/11/17- The 36th America’s Cup class boat concept of the AC75.

On 5 March, we learned that Challenger of Record Luna Rossa and Defender Emirates Team New Zealand (together “COR/D”) settled their dispute about the validity of the three late challenges – from Malta Altus Challenge, from Stars & Stripes (USA) and from DutchSail. We later learned that New York Yacht Club’s American Magic asked the Arbitration Panel to rule on the same issues.

This week, we got a somewhat ambiguous decision from the Arbitration Panel and a press release about that decision from ETNZ. We also note that in Amendment 03 to the Protocol, COR/D forgot to specify a penalty for breach.

The short version:

  • The three late challengers get more time to pay their Late Fee and Performance Bond.
  • Nothing has been published about the “or else” – the penalty if they don’t meet the new payment deadlines.
  • Nothing has been published about new deadlines for paying the two instalments of USD 1 million each for the regular Entry Fee.
  • The Arbitration Panel used somewhat ambiguous wording about whether their ruling was based on interpreting “racing” to include only the America’s Cup Match. It took a deep dive into the Protocol to understand that when they refer to “the America’s Cup” they mean all the events including the AC World Series.
  • ETNZ criticised NYYC for being anti-competitive.
  • Luna Rossa defended NYYC.
  • – ETNZ has said there are concerns about whether Malta Altus Challenge will be able to continue, but they did not give any reasons for their concern, other than the delay, which logically would also affect Stars & Stripes and DutchSail.

You can find a longer explanation here, citing the Arbitration Decision, the Protocol and the necessary references to the Protocol’s official dictionary.

For more info about breaches of the Protocol click here: CupExperience Newsletter, Issue 88, 15 February 2019.

By Jack Griffin

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