Seattle Yacht Club / One World, Decision in Case

No . ACAP 01/6 (7 August 2001)

Applicant: Seattle Yacht Club / One World Panelists: Chairman: Prof.dr.Fernando Pombo

Arbitra/ors: Master John Faire Mr Donald Manasse Prof.dr. Henry Peter Sir David Tompkins QC Subject Matter:

- Approval of 'Deed of Confidentiality and Undertaking'

THE AMERICA'S CUP ARBITRATlON PANEL

IN THE MATTER of the Protocol Goveming the XXXI America's Cup AND

IN THE MATTER of an application by Seattle Yacht Club ("SYC") seeking confir-mation of the Application of Articles 11.5 and 15.3 to Robert Hook, a designer engaged by the SYC for the XXXI America's Cup.

DECISION OF THE AMERlCA'S Cup ARBITRATlON PANEL

[1] ln terms of the Panel's decision dated 7 June 2001-decision 01/2 the Panel required Mr Robert Hook, the Seattle Yacht Club / One World and Dusseldorfer Yacht Club NV / illbruck to submit to the Panel for its approval a Confidentiality Under-taking to which the parties agreed to be bound.

[2] On 29 June 2001 the Panel received a draft confidentiality agreement in terms of its request.

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[3] After considering this draft the Panel required sorne additions and amendments to the draft ta reftect the true intent of the Protocol and this was submitted to the parties by way of a redrafted document under the hand of the Registrar dated 12 July 2001.

[4] On 6 August 2001 the parties resubmitted three original executed "Deeds of Confidentiality and Undertaking" in identical terms as requested by the Panel.

Attached is the forrn of deed the parties have signed.

[5] The Panel now formally approves the "Deed ofConfidentiality and Undertaking", a copy of which is annexed ta the Pane!'s decision 01/2 and fonns part of that decision.

[6] The Panel reminds the parties of the consequences of any breach of the under-taking which, if occurring, would be deemed by the Panel ta be a breach of Article 6.4 of the Protocol.

[7] The Panel has incurred considerable extra costs in reaching finality with the par-ties regarding this undertaking. These costs are fixed at US $1,000 and are to be paid by SYC ta the Registrar within 21 days of the date ofthis decision.

6.10 Yacht Club Punta Ala / Prada Challenge, Decision in Case No. ACAP 01/7

(6 December 2001)

AppHeant: Yacht Club Punta Ala / Prada Challenge Panelists: Cha;rman: Prof.dr.Fernando Pombo

Arbitra/ors: Master John Faire Mr Donald Manasse Prof.dr. Henry Peter Sir David Tompkins QC Subjeet Matter:

- Racing between syndicates - Meaning of 'an official Race'

- Photographing yachts in non-official races

THE AMERICA'S CUP ARBITRATTON PAENL

IN TH E MATTER of the Protocol Governing the XXXI America 's Cup AND

lN THE MATTER of an application by Yacht Club Punta Ala / Prada Challenge seeking Panel interpretive ruling conceming racing between or amongst teams.

DECISION OF THE AMERlCA'S Cup ARBITRATTON PANEL THE APPLICATION

[1] The application seeks a ruling from the Panel on two issues. The first requires a ruling on whether races between clubs/syndicates infringes Article 15.3(c) of the Protocol governing the XXXI America's Cup. The second seeks a clarification ofwhen a club/syndicate may photograph or film or obtain images of a yacht or yachts of another club/syndicate which are competing in a race.

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THE SPECIFIC ISSUES RA1SED BY THE APPLICATION

[2] The Panel considers that the application raises four specific questions. They are the following:

Does participation in formaI or informaI races between CILlbs/syndicates in preparation for the Louis Vuitton Cup or the Match breach Article 15(3)(c) of the Protocol?

When is a race "an Official Race" for the purposes of Article 13.4 of the Protocol?

When maya club/syndicate photograph or film another club/syndicate's yacht or yachts which are participating in training races without breaching Article 13.3 of the Proto col?

Can clubs/syndicates, by agreement, permit another club/syndicate to photograph or film their yacht while they are participating in non-official races without breach-ing Article 13.3 of the Protocol?

THE JURISDICTION OF THE PANEL TO RULE ON THE APPLICATION

[3] The application seeks an interpretation of several Articles of the Protocol Article 22.3(a) is as follows:

"22.3 The Arbitration Panel shall be empowered as follows:

(a) to resolve a11 matters of interpretation of any of the documents and ruIes referred to in Article 14 except wherc cxpressly excluded in the provisions of snch documents and rules inc\uding, where necessary, the determination of the facts relevant to the matter of interpretation [ ... ]"

The Protocol itself is included in Article 14.

[4] The reason for the application can best be stated by setting out the factual back-ground provided with the application.

FACTUAL BACKGROUND SUPPLIED WITH APPLICATTON [5] The following is provided by the applicant:

5.1 The Defender is planning the "America's Cup Regatta" event in the coming year [the relevant documents are available upon request].

5.2 CORM has proposcd to host a preparatory regatta for challengers prior to the start of the Lye. This proposaI has been considered at various meetings among challenges and a tentative schedule has been distributed to participants [the relevant corrcspond-ence is available upon request].

Decision Case No. ACAP 0 II7

5.3 In addition, sorne challengers including Prada are currently discussing proposais relating to the organization of racing of ACe yachts between or among ather teams with the aim of a training exercise to irnprove the ability of the respective crews. Ta that end, these races would be tentatively organized as follows:

ORGANIZATION

Buoys, radio Mark-boats, Race-Committee and Urnpire-boats directly provided hy the teams illvolved in the race.

Mark operations and Race-Committee pelformcd by members of the teams iuvolved in the races.

ARBITRA TlON

RACE

By umpires within the teams involved in the races.

The umpires are Druy engaged in arbitration at sea in compliance with the rules estab-lished hy the competitors: there will be no debriefing bctween the sailing teams and the umpires participating in the practice match.

- The scope of the race is to practice the specifie tactics, strategies and abilities of the Match-Race during the normal performance of the pre-departure and the race.

- Use of GPS and instruments on board to detennine the position and performance of one's own boat.

- Use of the bear"ing compass to determine the starting li ne, the buoys aIong the race, the angle between one's own boat and the opponenfs boat.

Use 0 the laser range-findcr and compass interfaced with the computer on board to determine the opponent's position and consequently, firing a series of shots, evaluate the relative speed of the two boats in the race.

Capture of images on board relating to one's own boat.

Capture the images of the opponent's boat in accordance with the criteria that will be examined under paragraph 4.2 below.

No tactical or technical debriefing conceming the trial races bctwecn the two teams or any exchange of tactical or technical information concerning the matches between the two teams or any other exchange of information.

[6] The reference in the factual background paragraph to 4.2 requires clarification.

Paragraph 4.2 of the application refers ta Article 13.4 which will be repeated later in this decision. The intention therefore is quite c1ear. The capturing of images either by filming, photography or such other means that are available of obtaining an image of

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another club/syndicate's yacht are expressed to be Iimited to those circumstances which are set out in Article 13.4(c) ofthe Protocol.

THE RELEVANT PROVISiONS OF THE PROTOCOL

[7] For the sake of clarity we set out the Articles of the Protocol which are called into question by the issues which the application raises. They are as follows:

A) ARTICLE 15.3

"15.3 In order to give full effect to the intent of this Article 15, wruch is to limit Challeng~

ers and Candidates for the Deferree to building, acquiring, or otherwise obtaining the spec-ified number of New ACC yachts, the following provisions shall apply: [ ... ]

Cc) Each person or entity whether then a Challenger, Candidate for the Defence, or not, shaH engage separate and independent designers having no involvement with any ather challenger's Of Candidate for the Defence's program to develop an Ace yacht its appendages, rigs and sails (in cach case where referred to in this Article 15.3(c) having the meaning in clause (a) of The 1980 Resolurions and The 1982 Amcndments as replaced by Article 11.8) or a yacht capable of being measured as an ACe yacht without sig-nificant modification. Design or performance information or equipment (including appendagcsJ rigs and sails but exc1uding standard fittings which are generally available) of or in relation to such yacht of a person or entity may not be shared or exchanged with another pecson or entity except infonnation which may be gleaned without assistance From the otber person or entity in formaI or informaI or head-to-head competition.

The acquiring or obtaining of an ACe yacht its appcndages, rigs or sails (but not their plans, specifications or other design infonnation), or a yacht capable of being measured as an ACe yacht without significant modification, which was eithec

COill-pleted within the meaning of Article 16.4, or made or built, before the completion of the Final Race in 2000 shall not be an infringement of this Article 15.3(c)."

B) ARTICLE 13:

"13.1 The purpose ofthis provision is to allow Challengers and Candidates for the Defence the opportunity ta conduct on the water testing in private and to limit attempts ta gather deslgn and yacht performance data and information from or about another Challenger or Candidate for the Defence, its business operations, or its yachts, especially through illegal, clandestine, dangerous, or cxpensive means. It is Întcnded that Challengers and Candidates for the Defence shaH have the opportunity to develop their own design features, systems and teclmiques in private and not be subject to harassment while testing.

Specified methods of information gathering are howcvcr permitted dming the Observation Period as defined in Article 13.5."

Decision Case No. ACAP 0117

"13.3 The following activities are prohibitcd at ail times (whether they are directed against another syndicate's yacht, support boats or facilities for purposes contrary to the purpose of this Article 13):

(a) unless specifically petmitted under this Article 13, persistent on the water observation (inc1uding photography or other methods of obtaining images) or tracking of yachts which are not participating in a race in the Challenger Selection Series, the Defender Selection Series, if there is one, the Match, or any other cvent organized for ACe yachts (an "Official Race");

(b) any Întentional illegal aet;

Cc) the use of listening devices for eavcsdropping;

(d) the use of satellites, airera ft (fixed or rotary winged), and/or ather means to observe or record from above other participant's yachts when sailing or ashore in compounds';

(e) the use of divers, submarines or other means to observe or record below or from below the surface of the water;

(f) the capture, rccording or analysis of perfonnancc data emanating from telemetry, instruments, computers, etc fTorn another cornpeting syndicate;

(g) the acceptance of any information from a third party that, undcr this Article, would have been improper for the syndicate ta obtain directly;

(h) other than from an opposing yacht in the same match the use of ÎllStruments such as laser range-findcrs and radar to attempt to gauge performance; or

(i) the use of discarded waste material from syndicate compounds or any other source."

"13.4 The following activities are pemlitted at ail times:

(a) visual observation from ashore;

(b) the visual observation of another syndicate's yacht, not intended ta gather design and yacht pelformance infonnation, and which is largely unavoidable due to the close proximity of eompounds of competing syndicates or passages in the harbour or at sea or overflying in the case of passages by air;

(c) the visual observation (including photography, and other means of obtaining images) of another syndicate's yacht, when it is participating in an Official Race, from a sur-face vessel which is either stationary or maintains a distance of at least 200 metres from the racing yachts, provided the observing vessel is c1early identified with the syndicate 's name or known flag; and

(d) the receipt and use of casual gossip and press reports."

THE SUBMlSSIONS RECEIVED

[8) Responses to the application have been received from Royal New Zealand Yacht Squadron (Team New Zealand), Société Nautique de Genève (Alinghi) and Seattle Yacht Club (One World Challenge). The applicant has replied to the responses from those clubs/syndicates.

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Decision Case No. ACAP 0117

[9] We now analyze the four questions.

QUESTION 1: DOES PARTICIPATION IN FORMAL OR INFORMAL RACES