Protocol Goyerning the XXXI America ' s Cup ("Protoco 1")
ARTICLE 11.2 OF THE PROTO COL
[9] The Article of the Protocol relevant to the question posed is Article 1 1.2:
"11.2 The Firs! 1984 Resolutions are altercd sa that footnote (1) of the 1982 Amendments is rcplaced with the words The requirement that a person be a national wiU he satisficd if the person has becn dOrrllciled in, or has had a principal place of residence in, or has had a valid passport of that country for no sh0l1er period than the period commencing on 1 MaTch 2001 and ending on the date of the first race of the Match",
THE SUBMISSJON IN OPPOSITION
[9] Alinghi 1 SNC maintains that the RNZYS 1 YCPA position places the burden of proof on Messers Heppel and Finkelstein to produce evidence proving compliance with the nationality regulations, in a reversai of commonly accepted principles tbat the party bringing the claim of non-compliance be requested to produce proof, or at least state a claim. Alinghi's submission further states that the holding ofa visa or work per-mit is not conclusive evidence of a principal place of residence in a country, nor is its absence conclusive evidence to the contrary. The introduction of a "stability and dura-tion" requirement would have a retrospective effect. GBR Team Challenge Co.Lld., on behalf of Royal Ocean racing Club, stated in their submission that Messrs Heppel and Finkelstein satisfy the residency requirements.
THE SUBMISSfON IN REPU BY RNZYS / YCPA
[10] RNZYS IYCPA submitted a reply to the submission in opposition ofORI GGYC.
They disputed the version of the facts presented by OR 1 GGYC regarding how the
Decision Case No. ACA P 02/2
matter came before the Panel, they stated that the OR / GGYC appeared to rely on the issuance of a work visa as proof of a principal place of residence, that the issuance of a work visa probably creates the minimum link with the country required by the nIles, that such Iink for the two designers in question was established after 1 March 2001, that the burden therefore was on OR / GGYC ta prove the designers acquired their l'esidence or domicile before the work visa were issued, and that the challenge is not "gratuitous or frivolous", and that apart from the issuance of a work visa, Messers Hempel and Fin-kelstein did not have a principal place of residence in the United States at 1 March 2001 .
DISCUSSION
[11] Article 11.2 represents the latest of a number of attempts to solve the evolving problem of reconciling the Deed of Gift stipulation that the America's Cup is for
"Friendly competition between foreign countries" with the fact that yacht designers and crew members are, as a result of advances and complexity of technology and global com-munications, becoming increasingly and rapidly specialised at an internationallevel. The Article seeks to solve the problem by defining "nationality" in a way which requires that the person in question shall be a "national" of the cmmtry for "no shorter period than the period commencing on 1 Mareh 2001 and ending on the date ofthe fust race of the Match".
[12] It is to be observed that the requirement of "nationality" for sueh a short period emphasizes that it is a concept whieh owes its existence to the wording of the Protoeol rather than to the rules of any nationallaw. Attic1e Il.2 set up tlu'ee criteria. viz domicile in, or the possession ofa valid passport of, orthe having ofa principal place ofresidence in, the relevant country. Although more than one of these criteria may be present, any one will suffiee to confer 'nationality' for the purposes of the Protocol. The Panel is not here concerned with questions of domicile or passports. The former involves con-siderations as to whether a person has established a permanent home in the country in question. The latter involves consideration of the relevant passpOlt laws of a country.
Here the only question posed is whether the designers had "a principal place of resi-dence" in the United States as at 1 March 2001, an essentially different question. The question posed does not require the Panel to consider whether the designer had a prin-cipal place of residence in the United States during the whole of the period between 1 March 2001 and the fust race of the Match.
[13] In the Panels's view this question is basically one of fact. The relevant person may have a residence in more than one country but, in order to comply, he or she must have a residence in the relevant country and, as at 1 March 2001, it must be one of the person's principal places of residences.
[14] ln its previous decision ACAP 00/7, the Panel stressed that decisions under Article 11.2 can be given only on a case by case basis. This pointed to the essentially
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factual nature of the question posed by the Protocol wording. Tt also made certain comments and suggestions which, in the Panel's view, now require further clarification.
[15] Although in that decision the Panel referred to the examination of whether
"the formaI requirements of the country are met", it was not thereby intended to indicate that such requirements should be considered in every case concernlng
"principal place of residence". The decisive question in every case is whether the relevant person has actually established a principal place of residence in the relevant country for the prescribed period. The establishment of su ch a residence at the commencement of the relevant period would not be prevented by the circumstance that the person's immigration status had not, at that time, been formally elarified. Of course, if the person, althougb living in the country at the relevant lime, was, for instance, subject to an exisling deportation order, then the relevant "residence" could hardly be established. Also, if a person is required to leave the country and have no residence in it, so that a re-entry visa can be uplifted, the residence requirement may not be met.
[16] While a "clear and significant link" and a "substantial relationship" with a par-ticular country may be relevant, as the Panel indicated in that decision, in considering whether a "principal residence" requirement of the Article had been met, in the end the test to be applied must always be whether the person has, in fact, a principal place of residence in that country for the requisite period. That is the test that must be satisfied for the person to be held a national of the relevant country on this basis.
[17] These considerations illustrate that it is always necessary that the actual words of the Article be kept firmly in mind. The introduction of concepts such as "stability"
and "duration" of association are not, in the end, of particular help. Nor is the concept of "lawful" residence involving, as it may, a consideration of national laws which may have no relevance to whether, in fact, a principal dwelling place has been established.
Nor does the Article require that the person have, at the commencement of the period, a work visa, in order to establish relevant residence. To so requiTe would be to read into the Protocol words which simply are not there.
[18] The Panel is satislied that the evidence referred to sufficiently established that both Mr. Heppel and Mr. Finkelstein, as at 1 Mareil 2001, had established principal places of residence in the United States, even though their immigration status had not then been clarilied. We are not persuaded by submissions ta the cono·ary.
CONCLUSJON
[19] We accept the submission by Oracle Racing / GGYC that Artiele 11.2 does not require the obtention of a work visa prior ta 1 March 2001, in arder for a participant
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ta comply with the nationality requirement imposed in the Protocol. The language of Article 11.2 and of our decision ACAP 00/7 does not justifY such an interpretation.
[20] As regard the second question, there has been no evidence showing that eilher Mr. Heppel or Mr. Finkelstein has not acquired a right ta enter in the United States prior ta 1 March 2001, and no claim has been made that they had a principal place of residence in any country other than the United States as at 1 March 2001.
[21] On the contrary, uncontroverted statements have been made that bath were legally in the United States prior ta 1 March 2001, and that they had no other principal residence than the United States.
[22] The Panel does not find il necessary in this case to refer to the law of the place in which a principal residence is claimed in arder to reach a decisioll. In other circum-stances, the law of the place may be relevant if, for examp1e, the presence of a partic-ipant in a country is claimed ta be in breach of the laws on entry and residence there.
THERESULT
[23] We answer the question posed by holding:
[il The nationality requirement of Article 11.2 of the Protocol does not require a persan ta have received a valid work permit in the country represented prior ta 1 March 2001.
[ii] The second question is answered "yes". On the evidence presented to the Panel, we determine that the nationality requirements of Article Il.2 of the Protocol are satislied by Mr. Heppel and Mr. Finkelstein. On that evidence it is established that as at 1 March 2001, they each had a principal place of residence in the United States.
[24] The costs of the Panel on this application are tixed at US $2,500.00. These costs shall be paid by RNZYS / YCPA to the Registrar within 21 days of the date of this decision. The Panel considers there is no basis in the Protocol for awarding costs ta a party.
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6.14 Golden Gate Yacht Club / Oracle Racing, Decision in Case No. ACAP 02/3
(20 September 2002)
Applican!: Golden Gate Yacht Club / Oracle Racing
Panelis!s: Chairman: The Hon.Michael Foster QC Arbitrators: Master John Faire
Mr Donald Manasse Prof.dr. Henry Peter Sir David Tompkins QC
Subjec! Malter:
- Meaoing of 'fabricated and assembled' in Article 11.8(b)
- Hull, deck and appendages need to be assembled as a complete yacht in country of challenger
THE AMERICA'S CUP ARBITRATlON PANEL
IN THE MATTER of the Protocol Governing the XXXI America's Cup
AND
IN THE MATTER of an application thereunder by Golden Gate Yacht Club acting through Oracle Racing made on 12 April 2002 seeking an interpretation of the words
"fabricated and assembled" to be found in Article 11.8(b).
DECISION OF THE AMERlCA'S CUP ARBITRATION PANEL THE APPLiCATION
[1] On 12 April 2002 Oracle Racing on behalf of Golden Gate Yacht Club applied to the America's Cup Arbitration Panel (the "Panel"), seeking an interpretation of the Protocol goveming the XXXl America's Cup (the "Protocol") under Article 22.3(a) of the Protocol.
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THE QUESTION
[2] The question posed by the application is:
Do the words "fabricated and assembled" in 11.8(b) of the Protocol mean that the hull, deck and appendages [must] be first assernbled as a whole in the relevant country or do they apply only to each 5uch individual components scparatcly?
THE SUBMISSIONS
[3] The Panel has received and considered submissions from:
a) YCPA / Prada Challenge for America's Cup 2003 dated, respectively, 23 April 2002 and 16 May 2002;
b) SNG / Alinghi dated, respectively, 23 April 2002 and 17 May 2002;
c) SYC / One World Challenge dated, respectively, 23 April 2002 and 17 May 2002;
d) Golden Gate Yacht Club / Oracle Racing (submission in reply) dated 26 April 2002;
e) Union National pour la Course au Large / LE DEFI Challenge dated 15 May 2002.
DECISION
[4] Art. 11.8(b) of the Protocol provides:
"11.8(b) A yacht shall be deemed ta be 'built' in a country if the hull of the yacht, includ-ing ail framinclud-ing and all planking, plating or other fonn of surfacing of the hull, the deck and ail appendages (including keel fins, bulbs, canards, rudders, skegs, trim tabs, wings, etc.) have been fabricated and assernbled in that country, provided that [ ... J".
[5] The question submitted to the Panel is a matter of interpretation. Pursuant to N1icle 22.3(a) of the Protocol, the Panel is empowered to:
"22.3(a) resolve aU matters of interpretation of any of the documents and rules refcrrcd ta in Article 14 except where expressly excluded in the provisions of such documents and [lIles and inc1uding, where necessary, the determination of the facts relevant to the matter of interpretation;"
[6] In ils decision ACAP 01/5 dated 5 September 2001, the Panel ruled, inter aUa, that a Challenger rnay rely on appendages shipped earlier when shipping a new yacht to New Zealand. This implies that the relevant appendages need not be as sem bled in such Challenger's country
[7] lt was and remains the view of the Panel that Article 11.8(h) is complied with provided the hull, the deck and appendages are each fabricated and assembled in the
Decision Case No. ACAP 02/3
country of the Challenger or Defender. The AJticle's language does not require that the hull, the deck and the appendages be assembled into a complete yacht in the relevant country before being eventually shipped ta New Zealand.
[8] Grammatically, this view is supported by the fact that Article 11.8(b) of the Pro-tocol used the ward "have" rather than "has" in the final part ofthe clause, which is a clear reference ta the plurality of components rather than ta them taken as a whole.
[9] "Fabricated" and "assembled" are thus a reference ta the manner of creation of each of these main components and not ta them as a single unit (being the complete yacht).
THERESULT
[10] Article 11.8(b) of the Protocol is complied with if the hull, the deck and each appendage are each fabricated and assembled in the relevant Challenge's or Defender's country. It is not necessary that the hull, the deck and the appendages be assembled
into a complete yacht in such cowltry.
caST
[II] Cast of the Panel on this application at US $1,500. These cast shall be paid by Golden Gate / Oracle ta the RegistraI' within 14 days of the date ofthis decision.
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6.15 Royal Ocean Racing / GBR Challenge, Decision in Case No . ACAP 02/4 (20 September 2002)
Applicant: Royal Ocean Racing 1 GBR Challenge Panelists: Chainnan:
A l'bi/ra/ol's:
Subject Matter:
The Hon.Michael Foster QC Master John Faire
Mr Donald Manasse Prof.dr. Henry Peter Sir David Tompkins QC
- Principal place of residence
- Interpretation of requirement to maintain residence in the Match Conditions - Deemed to have had a principal place of residence in the UK
THE AMERlCA'S Cup ARBITRATION PANEL
IN THE MATTER of The Protocol Governing the XXXI America's Clip AND
IN THE MATTER of an application by Royal Ocean Racing Club 1 GBR Challenge seeking interpretative rulings on the application of Articles 5.2, and Il.2 of the Protocol and of Condition 4.4 of the Match Conditions, and seeking directions under Article 22.8 of the Protocol.
DECISION OF THE AMERICA'S Cup ARBITRATION PANEL
[1] GBR Team Challenge Company Limited ("GBR Challenge") on behalf of the Royal Ocean Racing Club has applied to the Panel for interpretations regarding the national residency requirements un der Article 11.2 of the Protocol governing the XXXI America's Cup (the "Proto col") and under Condition 4.4 of the Notice of Race and Conditions Governing the XXXI Amelica's Cup as approved in May 2002
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Decision Case No. ACAP 02/4
(the "Match Conditions). GBR Challenge also seeks directions as ta one of its crew members, depending on the interpretations given.
[2] The application states the primary question for interpretation (the "Plimary Question") to be whether a crewmember who otherwise complies with the residency tests stated in Article 11.2 loses his qualification as a national of the Challenger yacht club if, while in Auckland training and racing in the Louis Vuitton Cup with his team as contemplated in Condition 4.4, he fails ta maintain a vacant dwelling in the Chal-lenger's country until the date of the first race of the Match.
[3] The Panel has received submissions, in sorne cases more than one, from:
a) Yacht Club Plmta Ala / Prada Challenge b) Seattle Yacht Club / One World Challenge c) Golden Gate / Oracle Racing
d) Société Nautique de Genève / Alinghi
e) Royal New Zealand Yacht Squadron / Team New Zealand f) GBR Challenge in reply
[4] The Panel has also received affidavits filed in support of the application from:
1) Cln'istopher Main 2) Tessa Pelly
3) George H. Clyde Jr.
[5] The factual situation giving rise to the application is accepted by the Panel as contained in the following paragraphs in the affidavit of Chris Main:
5.1 The declaration made by GBR Challenge on 25 August 2001 under Article II.3(b) of the Protacal that 1 had acquired a United Kingdom principal place of residence prior to l March 2001 and that 1 had e\ected and declared my nationality to be of the United Kingdom is true and correct.
5.2 During early February of 2001, l commenced my residency in the UK in ant.icipa-tion of crewing with GBR Challenge in tItis America's Cup. Initially l resided at.
GBR Challenge crew accol1Unodations at Egypt Bouse in Cowes, Isle of Wight, UK, as my principal residcncc in the UK while Iocating a suitable dwelling to rent as my principal residence for the next several months. In late February 2001 l secured premises at 25 Moorgreen Drive, Cowes, Isle of Wight, UK, which was my principal place of residence in the UK from early March until mid-September 2001.
5.3 On 3 September 2001, after the America's Cup Jubilee, GBR Challenge tenminated its training operations in Cowes and subsequently shipped two of its ACC training yachts to Auckland. The crew was given various assignments and leave, generally with the rcquirement to report for dut y again in Auckland on 8 October 2001. l remained in the UK until 22 Septembcr 2001.
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requirements, and after consulting with GBR Challenge in ttus regard, 1 let my loase at 25 Moorgreen Drive be termjnated effective 15 Septemher 200 1, with the inten-tion of obtaining another dwelling in the UK when T returned From Auckland in approximately six months to rejoin the GBR Challenge tcam in Cowes and continue my UK residency. No efforts were taken by me or by GBR Challenge to secure a resumption of GBR Challenge operations there. GBR Challenge resumed its crew training activities in Auckland on 8 October 2001 and actually fust sailed one of its ACC yachts in Auckland 13 October 2001.GBR Challenge continued regularly sailing its ACC yachts in Auckland From 13 October 2001 through Il March 2002 (the last date an ACC yacht was aetually sailed in that tTalning session), and concluded its 2001-2002 New Zealand training session on 27 March 2002.
5.7 In mid-March 2002, in anticipation of my resumption of residency in the UK after the conclusion of the GBR Challenge 2001-2002 h'aining session in Auckland, Tessa Pelly, Operations Officer at GBR Challenge, and 1 commenced efforts to secure rentaI accommodations for my principal residence in the UK.
5.8 Effective 24 Mareh 2002, T secured the right ta occupy a dwelling al T8 Henstead Road, Southampton, UK. That dwelling was vacant and immediately available and was secured by me as my principal residcnce in the UK on that date.
5.9 1 departed New Zealand on 5 April 2002. En route ta the UK from New Zealand, 1 competed for GBR Challenge in the Congressional Cup in Califomia. 1 returned to the UK on 16 April 2002, and 1 immediately took up occupancy allhe dwelling 1 had secured at 18 Henstead Road, Southampton, UK.
5.10 1 resided at and continued to stay at the 18 Henstead Road residence until early June 2002, with the exception of short trips for regattas and leave in Europe.
5.11 On Il June 2002 1 departed the UK for New Zealand to rejoin the new training session in Auckland with GBR Challenge's ACC yachts, as contemplated by
5.11 On Il June 2002 1 departed the UK for New Zealand to rejoin the new training session in Auckland with GBR Challenge's ACC yachts, as contemplated by