Please select your home edition
Crewsaver Crewline LEADERBOARD
Product Feature
Barton Marine D0550 Clutch
Barton Marine D0550 Clutch

America's Cup: Emirates Team NZ wins Arb Panel confidentiality complaint

by Richard Gladwell/ 9 Mar 20:50 GMT 10 March 2020
Te Aihe in a higher flight mode - again the degree of immersion of the rudder wing foil can be deduced by comparing the 'Steinlager' writing with the water level and referencing that back to the launch photo at the top of this story © Richard Gladwell /

Emirates Team New Zealand has been exonerated following a complaint that the Kiwi team had breached confidentiality restrictions surrounding the Match Conditions for the 36th America's Cup.

The complaint was lodged by the Challenger of Record, Luna Rossa Prada Pirelli after it became known that there was a dispute between the Italian team and the Defender Emirates Team New Zealand - who are the two parties who negotiate the rules and conditions for the America's Cup Regattas.

The final sticking point was over the negotiations of the Match Conditions and specifically the wind limits that would apply. The media were tipped off that there was an issue when it became plain that a deadline of December 20, 2019 would not be met for publication.

It emerged that the two parties could not agree on wind limits that should apply when the deadline was missed. Sail-World broke the story on December 22, carrying a quotation from Emirates Team New Zealand's long time and highly experienced rules adviser Russell Green.

It soon emerged that despite a requirement in the Protocol for the Challenger of Record (the first to lodge a Letter of Challenge required under the 19th century Deed of Gift which governs the conduct of the America's Cup) to "represent all Challengers" had not been met in its wider sense when the New York Yacht Club's American Magic stated in an interview with Associated Press that Luna Rossa had not consulted them as to their views on the wind limits that should apply.

That news surprised Emirates Team New Zealand who had apparently assumed that the other three Challengers would be consulted n this vital issue.

On January 9, 2020 (NZT) the New Zealanders issued a statement on their website expressing the view "Under the AC 36 Protocol, the Challenger of Record has the responsibility to represent all Challengers and that responsibility involves consulting with other Challengers before taking a position with the Defender on issues such as race conditions."

That put the Challenger of Record in the same position of Artemis Racing in the 2013 America's Cup who frequently pushed their own views as a Challenger of Record and were opposed in Hearings by the majority of the Challengers - ETNZ and Luna Rossa. The Italians have been on the receiving end of some very unfair actions, and at times disgraceful actions, by the Challenger of Record, and it was surprising to hear they had acted without consultation.

The Italian response was to go to the Arbitration Panel complaining that ETNZ was in breach of the Protocol and the Rules of Procedure established by the Arbitration Panel, which is binding on all parties.

The Arb Panel noted that the provisions of the Racing Rules of Sailing (America's Cup version) are not relevant to the case as the Challenger of Record/Defender has not adopted them.

To the surprise of no-one, there is no "Dalton Clause" in the current Protocol. The clause, effectively a gagging order, was a feature of the last America's Cup Protocol and stopped teams expressing a view that was at variance with the dictates of the Defender or the Event. "The [curent] Protocol does not contain a general obligation of confidentiality," said the three-man Arbitration Panel in its Decision.

The Panel further noted that under its Rules of Procedure proceedings "will be transparent and not confidential between the Parties" unless a confidentiality order was explicitly made by the Panel "in exceptional circumstances". No such order was made before January 10.

According to the Decision issued by the Arbitration Panel, Luna Rossa also tried to claim that the "friendly competition between foreign countries" phrase in the Deed of Gift was a defacto confidentiality order. That view is quite a stretch given that the only two disputes that have gone before the New York Supreme Court have been decided within the "four corners of the Deed". If it were to be upheld, Luna Rossa's claim would have required NYSC to have determined the intent of the donor - which is an area that has not been necessary to support a previous ruling by the Court.

The Arbitration Panel found there were no grounds to uphold any aspect of the Complain, and it was summarily dismissed.

"Confidentiality did not apply until such time as the Sole Mediator issued its confidentiality order under Art. 7.2 of the RoP by way of its Directions 02 dated January 10 2020," the Arbitration Panel wrote in its Decision. "The media statements that the Applicant complained of in its Application (i.e. the 1st Stuff Article and the Media Statement) both occurred before such confidentiality order was made. As a consequence, the Respondent did not breach its obligations under the Deed of Gift, the Protocol, the RoP, The Mercury Bay decision or its fiduciary duties."

Submissions on costs were to be made by March 5, and a decision on the amount and liability for those has yet to be announced by the Arbitration Panel.

Related Articles

America's Cup: Defiant checks out of Pensacola
Defiant departed the American Magic's winter base at Pensacola on Wednesday Defiant, the groundbreaking AC75 racing yacht built for New York Yacht Club American Magic, departed the team's winter base at the Port of Pensacola late in the evening on Wednesday, May 27th, 2020 Posted on 28 May
America's Cup economic benefits set to take a hit
International visitors for Cup unlikely without closed border exception for superyachts and fans Thoughts of shifting the dates of the 36th America's Cup have been dismissed by Emirates Team New Zealand CEO, Grant Dalton. "There is no intention to move the dates", Dalton told Sail-World on Monday. Posted on 26 May
America's Cup: Te Aihe returns to a changed world
Emirates Team New Zealand's AC75 arrives home in the dark after globe trotting for four months It is not so much a triumphant homecoming from Europe for the Emirates Team New Zealand AC75 ‘Te Aihe'- rather a low key but very welcome return in the dark hours of Tuesday morning after a global tour lasting four months Posted on 26 May
Omega back on board as official time keeper for AC
The Swiss watch maker celebrates return to the America's Cup with a newly released time piece. The America's Cup is renowned as the oldest trophy in international sport and is the source of fierce international rivalries and spectacular sailing duels. As the 36th edition approaches, OMEGA is announcing its role as the event's Official Timekeeper. Posted on 25 May
America's Cup: Challenger entry plan outlined
NZ's Director-General of Health outlines a likely entry protocol for America' Cup teams NZ's Director-General of Health has outlined a likely protocol that could be used for athletes wishing to enter New Zealand - bridging the moat around Fortress New Zealand for America's Cup Challengers. Posted on 23 May
America's Cup: Challengers vent over Kiwi ban
America's Cup Challengers' frustration boils over with Kiwi Govt closed border stance The America's Cup Challenger's frustration with being unable to get answers on their entry process into New Zealand in July/August, boiled over today in the lead item in the mainstream sports news. Posted on 21 May
America's Cup: Omega appointed Official Timekeeper
Omega has been appointed Official Timekeeper for the 36th America's Cup regattas As the 36th edition of the “Auld Mug” approaches, the Swiss watchmaker Omega has been appointed Official Timekeeper for the 36th America's Cup regattas. Posted on 21 May
America's Cup: AC75's have similar spin-outs
Video shows Luna Rossa exhibited similar moves to ETNZ's Te Aihe in her Dec 19 capsize Video published on leading Italian sailing website Farevela shows that Luna Rossa exhibited many of the same moves as Emirates Team New Zealand's Te Aihe, in the kiwi AC75's capsize late last year. Posted on 20 May
America's Cup teams edgy over Visa silence from NZ
INEOS Team UK CEO, Grant Simmer says the NZ Government have been "quite silent" entry visas for NZ INEOS Team UK CEO, Grant Simmer says the New Zealand Government have been "quite silent" on whether they will facilitate the entry of America's Cup teams into New Zealand. Posted on 20 May
America's Cup: Kiwi team back up to speed
Emirates Team New Zealand back up to speed after a five week lockdown Emirates Team New Zealand are pulling back the time lost due to the COVID19 lockdown in New Zealand. members of the design team, construction team and sailing team update on progress achieved during the lockdown and ahead of the return of the AC75. Posted on 18 May