Alinghi y los cuatro equipos que firmaron ser challengers para la 33rd America´s Cup se sienten fuertes por ir juntos hacia un mismo objetivo, pero la demanda en la justicia de EEUU va muy en serio y podría complicar los planes de todos.
Alinghi lo sabe, así que esta intentando por todos los caminos validar al CNEV (Club Náutico Español de Vela) como Challenge of Record, y además intentar dejar afuera de competición a BMW Oracle. El hecho es que la SNG (Societè Nautique Geneve) habría sometido a validez del Arbitration Panel el protocolo firmado con el equipo español, pero lo interesante es que los miembros del Arbitration Panel han sido elegidos por ellos mismos, como lo estipula el punto 24.2 del protocolo de la 33rd America´s Cup.
Lo primero que intentaría este comité (imparcial como pocos), sería determinar que son ellos los encargados de determinar la validez del protocolo y entonces no hacer lugar al reclamo de los tribunales de New York como prohibe el punto 35 del protocolo.
BMW Oracle está muy atento a todo esto y ya respondió a través de su club, el GGYC (Golden Gate Yacht Club).
Para entender mejor todo esto leer primero el texto a continuación y luego la respuesta del GGYC.
JPC
by Richard Gladwell, Sail-World NZL
2:51 AM Sat 28 Jul 2007
A letter has been posted on the Golden Gate Yacht Club website responding to notice apparently given by the Challenger and Defender of the America's Cup, of their intention to submit the validity of the Challenger of Record (Club Nautico Espanol de Vela) to the yet to be publicly announced Arbitration panel for the 33rd America's Cup.
The text of the letter follows, which was sent in response an unsigned note from Professor Henry Peter (SUI) received by Golden Gate Yacht Club, advising of the intentions of both the Defender and Challenger. The intention was also referred to by Alinghi officials at the America’s Cup press conference in Valencia earlier this week.
The Arbitration Panel is appointed under 24.2 of the Protocol for the 33rd America's Cup, and were agreed between the Defender and Challenger at the time of the announcement of the Protocol, two days after the conclusion of the 32nd America's Cup. One of the other Panel members is believed to be Graham McKenzie (New Zealand) and a member from the Host country, Spain.
Several outcomes are possible from the Hearing, one of which may be to refer the matter for determination by the Courts, as Societe Nautique de Geneve SNG is entitled to do so, as Defender under Clause 35 of the Protocol. SNG is also the Trustee for the America's Cup under the Deed of Gift for the trophy. It is not known whether SNG has consulted with past trustees, New York YC, San Diego YC, Royal Perth YC and Royal New Zealand Yacht Squadron.
The initiation of proceedings to the Arbitration Panel could also be the opening gambit in a move to exclude Golden Gate YC from the 33rd America's Cup, as if the panel elect not to send the matter onto the New York Supreme Court but make a determination in the matter themselves, then SNG could invoke Sections 35 and 2.7(d) of the Protocol which prohibit any Challenger from resorting to any other court or tribunal. And, the latter Clause gives SNG the contentious right to disqualify and Challenger if they dispute the binding effect or the Protocol.
Another outcome could be that the Arbitration Panel decides that CNEV are not qualified to be the Challenger of Record. In this case Clause 3.3 of the Protocol would come into effect, where CNEV would either withdraw or be disqualified as COR and then either a new or existing Challenger can be selected by SNG. Or, the next Challenger to submit a Notice of Entry would be selected.
Presumably SNG would select Royal Cape Yacht Club of South Africa, who could endorse the existing Protocol, or negotiate a new Protocol for the 33rd Match. RCYC is a well established club in yachting circles with a long and proud history in keelboat sailing. However the Challenge from Golden Gate YC was lodged ahead of RCYC, and this would just shift the ground in their dispute with SNG. Royal New Zealand Yacht Squadron (Emirates Team NZ) is another option. RNZYS is a Trustee of the America's Cup, their attitude to the current Protocol has not been publicly stated, however Emirates Team New Zealand spokesmen were on record earlier in the week as having a number of issues with it.
Were GGYC to be selected as the new Challenger of Record, then there is no doubt that a Protocol similar to that which governed the 32nd Match would be put in place, and this is the only real way to avoid further acrimony and get the event back on track with a full entry of the top teams. However from the tenor of Ernesto Bertarelli's comments on Thursday, this outcome would be rather optimistic.
Emirates Team New Zealand's late entry into the 33rd America's Cup, and its announcement as Challenger by SNG, places it in an interesting position in the matter. While teams who have not entered the event are not normally entitled to be present at an Arbitration Panel or Jury Hearing, it is normal practice for all teams/competitors to be granted the right to make submissions if they are affected by the matter or outcome.
There is no real benefit in being the Challenger of Record aside from being able to negotiate a Protocol with the Defender. In the past the role has proven to be a real Poisoned Chalice with New York YC suffering major structural issues with one of their yachts in 2000 and being bundled out before the Semi-Finals; in 2003 it was Punta Ala's turn when Prada who was eliminated in the Semi-Finals; and then in 2007, Golden Gate YC's BMW Oracle Racing was CoR and dropped out of the semi-finals 5-0.
For Emirates Team New Zealand the stand-off between the Defender and the BMW Oracle is of little consequence given the undertaking given by Larry Ellison, to return to Valencia in 2009, if Golden Gate were successful in their Case and were granted a Challenge against Alinghi in July 2008, and won the America's Cup from that Match. From Emirates team NZ's perspective the Court battle is really about who will be the Defender in 2009 (Team Alinghi or BMW Oracle Racing).
The other two advantages the New Zealanders have that they can devote their entire design and development effort into just a 90fter, while the other two will have to work on the 90fter for 2009 and a catamaran, trimaran or hydrofoiler for 2008, plus all will have to run ACC Version 5 boats in the Qualification regattas in 2008. The second area of advantage for Emirates Team NZ is that in opting to be an early challenger, and negotiating a two month preview of the new 90fter rule they will gain a longer design and development period for both boats.
Ahora leer la respuesta del GGYC
Professor Henry Peter,
Chairman America’s Cup Arbitration Panel
33 Bd du Pont d’Arve 40
Geneva 1211 Switzerland
Dear Professor Peter:
The Golden Gate Yacht Club ('GGYC') has received notice that Societe Nautique de Geneve ('SNG') and Club Nautico Espanol de Vela ('CNEV') plan to submit to arbitration the validity of the challenge of CNEV.’
The format and process set up for this arbitration in The Protocol Governing the Thirty Third America’s Cup ('Protocol') violate the most basic principles of justice and independence common to all legitimate adjudicatory bodies and are an affront to the most basic sensibilities common to all law abiding people. A dispute resolution proceeding in which the parties to the proceeding are in agreement (in this case CNEV and SNG), and in which the judges may be removed, and the rules of procedure may be changed, at any time and for any reason by the parties to the arbitration, will be viewed by the public and the sailing community as nothing more than a kangaroo court.
The arbitration process will further damage the sport of yachting as it will be viewed with no more validity, and no less frivolity, than CNEV’s attempt to meet the annual regatta requirement for the Challenger of Record by holding a sailing school. Its continuation day to day will provide compelling on-going proof that SNG’s Protocol for the 33rd America’s Cup was designed by SNG to put the fox in charge of the henhouse.
The question presented to the arbitration panel by SNG is whether it violated the terms of the Deed of Gift and its legal duty to comply with and enforce those terms under New York law by accepting CNEV’s challenge. In a transparent attempt to lend legitimacy to the arbitration panel, SNG in its letter to the arbitration panel dated July 23, 2007, ironically refers to a New York Court of Appeals decision captioned Mercury Bay Boating Club v. San Diego Yacht Club and argues that it 'is appropriate that sporting issues are resolved by the dispute resolution bodies established by the sport rather than in the courts.'
In fact, as the arbitration panel must be aware, the Mercury Bay opinion held that the New York courts have the authority to interpret the trust instrument, the Deed of Gift, and determine whether a successor trustee, in this case SNG, has complied with its terms. Indeed, the Mercury Bay opinion refers to amicus briefs submitted jointly on behalf of 'renowned yachtsmen from the Unites States, Great Britain and Australia and yacht clubs of undisputed standing' for the proposition that the court has jurisdiction over the administration of the Deed of Gift. Mercury Bay Boating Club, Inc. v. San Diego Yacht Club, 76 N.Y.2d 256, 278 (N.Y. 1990).
GGYC is disappointed that Henry Peter, appointed chairman of the arbitration panel, would even consider SNG’s application to arbitrate knowing the panel lacks jurisdiction over this issue. Mr. Peter, in his book entitled, 'Arbitration in The America’s Cup,' concedes that 'the New York State Supreme Court. . . has jurisdiction over the Deed of Gift' to decide upon the 'interpretation of the deed of gift' and whether a 'challenge was valid.' Henry Peter, Arbitration in the America’s Cup, (2003), p.4.
Indeed, the panel’s willingness to engage in this arbitration in the face of this legal precedent suggests its members are beholden to the parties who appointed them in a secret document and who retain the power to remove them. The Protocol, published only two days after SNG won the 32,d America’s Cup, states that SNG and CNEV 'have agreed in a separate document on the names of the Arbitration Panel members.' See Protocol ¶ 24.2. The letter has never been publicly disclosed, to our knowledge, nor has the identity of the arbitrators; and until we received notification from Mr. Peter, we did not even know he was the panel’s chairman. Nor have we yet been advised of the names of the other members.
Not only does this arbitration panel lack jurisdiction, the clubs opposed to SNG and CNEV on the issue presented are frozen out from the adjudication since they will not and cannot have standing before the arbitration panel. Under the Protocol only a yacht club accepted as a Challenger has standing before the panel; but to become a Challenger, a yacht club must submit to the terms of the Protocol which includes granting SNG the power to disqualify any Challenger who disputes the binding effect of the Protocol. An adjudicatory proceeding over the validity of the Protocol in which a yacht club must accept the Protocol before they can challenge its validity, while SNG retains the right to terminate their standing if they challenge any provision of the Protocol, is a fatally flawed proceeding.
It offends basic notions of justice that one side to a dispute, SNG and CNEV collectively, would retain hegemonic control over an adjudicatory panel and its proceedings while the other side remains powerless.3 Moreover, any real adversary can be disqualified from the competition just for disputing a provision of the Protocol. See Protocol ¶ 2.7(d).
Moreover, SNG and CNEV retain the sole power to modify anything they desire regarding the arbitration, including but not limited to the powers of the arbitration panel, the jurisdiction of the arbitration panel, procedures of the arbitration panel, and even the official language of the arbitration panel. See Protocol ¶ 36.1. The issue of whether CNEV is a legitimate challenger is not contested by CNEV or SNG and their masquerading as adversaries while the real adversaries are rendered impotent is not a legitimate legal proceeding but rather a mockery of justice. Civilized countries have long done away with such tribunals and no legitimate arbitration panel would agree to operate under these conditions. This may explain the striking omission from the 33td Protocol of the requirement in the 32’' Protocol that arbitration panel members be 'fair minded and possess good judgment.'
It is subterfuge to have SNG and CNEV’s hand picked arbitrators, replaceable at the their whim, sitting in a forum and under rules wholly controlled by SNG and CNEV, and judging an issue that the parties to the arbitration do not dispute. The disgrace and shame brought upon the America’s Cup by this charade threatens to inflict a crippling blow to the sport. This arbitration, if it chooses to proceed, will not and cannot have any involvement from GGYC, and will be viewed with the same disdain by the public and sailing community as CNEV’s sham regatta.
Very sincerely yours
James V Keraney
of LATHAM & WATKINS LLP
Counsel to Golden Gate Yacht Club
Texto de Richard Gladwell, Sail-World NZL
