Extract
Sailing away from judicial interference: arbitrating the America's Cup.
The America's Cup is one of the most prestigious and oldest sports events in the world. The stakes involved are huge, be it only in financial terms. Moreover, it is organized in an almost entirely autonomous fashion, in the sense that the respective defender of the Cup (the sailing club that last won the Cup), along with its first challenger are almost completely free to organize the competition as they see fit, the only real constraint being a 150-years old two-pages document. The combination of this liberty and the stakes just mentioned lead, over the years, to a series of interesting adjustment as regards the way dispute arising in the context of the Cup are resolved. From long and bitter litigation in connection with Dennis Conner's famous catamaran, the sailing community has learned the importance of providing for extra-judicial methods and bodies. These methods and bodies have, over the last editions of the America's Cup, gradually evolved, thereby revealing likely strong points and pitfalls in the setting up of ad hoc dispute resolution.
This article first introduces the various documents and rules that govern the Cup. It then goes back over the court proceedings that sparked the intention to equip this sporting event with private dispute resolution mechanisms. Thereafter, it presents the three different dispute resolution bodies that accompanied the five last editions of the Cup. Finally, this article reviews the jurisprudence (13 arbitral awards so far) of the current edition of the Cup. Introduction The fact of calling to mind the America's Cup unavoidably conjures up scenes of awe-inspiring boats and regattas, images of a grandiose event and a noble sport, and the notion of a particularly high-stakes competition from which radiates an ideal of sportsmanship. But below these flamboyant aspects of the event, the Cup has a more shadowy history of disputes and dispute resolution. Dispute resolution, in reality, is entrenched in the very history of the America's Cup. The very race that led to the creation of this 154-years-old competition gave rise to a protest because a vague rule had been taken advantage of. (1) Since that time, the competition has been punctuated with protests, court actions and arbitral proceedings. It is the effort to reconcile these two sides of the America's Cup that is interesting to the lawyer. It is interesting because the need emerged to provide the Cup with a dispute resolution process able to handle the inevitable disputes in an honorable fashion. A system was needed that prevents the competition from becoming a battle on the complex rules of sailing rather than a contest at sea, while ensuring that the inevitable disputes do not cripple the spirit of the race because of unsatisfactory resolutions. In this regard, the America's Cup shows an interesting history of experiments and gradual innovations and improvements, as a core feature of the Cup is that its respective organizers, which have a large liberty to do as they think fit, have in recent decades come to change at a frequency quite unlike other sports. These successive changes and the factors of these changes reveal many valuable insights into the field of dispute resolution in sports, but also into ad hoc dispute resolution mechanisms in general. This article seeks to go back quickly over this evolution and to present in further detail its outcome so far: the America's Cup Jury, which has a broad and radically exclusive jurisdiction over the current 32nd edition of the Cup. This article moves in three parts. Part I presents the history of the Cup that led to the constitution of specific dispute resolution bodies for this competition (I. Historical and legal background). Part II focuses on these dispute resolution bodies and provides an analysis of the global setup and procedures of the three different ad hoc bodies that the Cup has known in its history, with special emphasis on the current system, the America's Cup Jury (II. Dispute resolution bodies). Part III reviews the 13 decisions that the Jury has rendered so far (III. The Jury jurisprudence related to the 32nd America's Cup). I. Historical and legal background Although the most famous heritage of the Great Exhibitions certainly is the Eiffel tower, the America's Cup may increasingly deserve a good second place. During the 1851 Exhibition, the schooner "America", built and owned by a syndicate of members of the New York Yacht Club (NYYC), entered a race around the Isle of Wight against 16 British yachts. On August 22nd, before the eyes of a disappointed British Queen at Cowes, (2) in England, the lone American vessel won the race hands down and earned a 100 [pounds sterling] ornate silver cup prize, sometimes called the "Auld Mug". The syndicate, back in New York, entrusted their yacht club with the trophy, which was to be "preserved as a perpetual Challenge Cup for friendly competition between foreign countries", becoming in turn the "prop...See the full content of this document
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