28 Aug 2020

America's Cup: The lawyers have the power

1:46 pm on 28 August 2020

A panel of three lawyers has the power to make or break an America's Cup syndicate's campaign.

America's Cup

America's Cup Photo: PHOTOSPORT

The America's Cup Arbitration Panel is called on to settle off-the-water disputes between the sailing teams and so far the panel has issued decisions in 10 cases ahead of the 36th America's Cup to be held in Auckland next year.

But their latest decision could have landed the biggest blow yet.

Earlier this month the panel chaired by Australian lawyer David Tillett, with retired New Zealand lawyer Graham McKenzie and Switzerland-based lawyer Henry Peter, ruled that the constructed in country clause would prevent the cash-strapped Stars + Stripes Team USA from borrowing a boat from the other challengers or the defenders - Team New Zealand - to go racing.

StarS + Stripes has yet to officially withdraw from their pursuit of sport's oldest international trophy but without a boat of their own they are quickly running out of options.

Tillett would like to see all four challengers - including Italy's Luna Rossa, INEOS Team UK and American Magic - make the startline but he concedes after the latest ruling it is now unlikely.

America Magic training in Auckland on the Waitamata Harbour.

American Magic is already in New Zealand and sailing. Photo: PHOTOSPORT

Since the three-man panel was appointed in 2018 they have dealt with disputes regarding the definition of nationality, confidentiality in mediation proceedings, cancellation of selection series races as a result of the Covid-19 pandemic as well as the construction in country issue.

Tillett, who is based in Adelaide, has been making important decisions around the America's Cup since 1992 when he was an umpire at the regatta in San Diego, he has been on the international jury and this is his sixth time on the arbitration panel.

Covid-19 has had an impact on what the arbitration panel has dealt with, but Tillett says each cup has a unique set of issues.

"It does vary a lot, different cups have different numbers of issues that arise, some don't have a lot and some do have significant ones," he says.

Some issues are straightforward and some are not.

Most applications are dealt with in a written format but Tillett says there is an option for verbal submissions if necessary.

Grant Dalton at the launch of Team New Zealand's AC 75 on 6 September.

Grant Dalton of Team New Zealand. Photo: RNZ / Claire Eastham-Farrelly

"Usually if a matter comes to us there is a good reason for it, the teams do try to resolve matters as best they can between themselves but sometimes there are differences which they have strong views [about] and you've got strong personalities involved in the different teams and significant issues that can impact on both the management of the event and sailing issues related to it."

Mediation is an alternative way to solve disputes but for some issues - like the construction in country - which Tillett says "evoked considerable discussion and interest in the sailing and other circles" - that was not an option.

"That one was one that it was never going to be a possibility of mediation because it was an all-or-nothing situation but there have been other aspects relating to the different arrangements with the events that have been dealt with by mediation successfully and I think that is a real positive where disputes can be resolved by mediation.

"If they can be, the teams are very open and are very cooperative to mediation even though they might have significant differences on matters."

Going on previous experience, Tillett is expecting a busy couple of months leading up to next year's racing.

He knows the teams will be testing the rules with the hope of being able to get one up on each other.

"It's perfectly natural that people look for different areas that they feel that they can get some sort of an advantage and they would go to as to the question of design rules and things like that. There's class rules that a separate measurement committee deals with and so everyone's going to be pushing for whatever interpretation or benefit that they can see that they can get."

The panel's work is not over when sailing begins.

Teams can still raise off-the-water issues with the panel during the America's Cup regatta.

Tillett says the lawyers, currently based in three different countries, are hoping to be able to be in New Zealand by January to set up so that they can offer quick resolutions.

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