9:35 AM Fri 4 Dec 2009 GMT
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'The Appellate Court Justice's stand at the start of the Hearing on 05 June 2008'
Unknown Photographer
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Today, December 4, in New York is likely to be a key date in the 33rd America's Cup, being the time set by Judge Shirley Kornreich for the Challenger and Defender to have come to Mutual Consent on the Rules issues surrounding the event.
Mutual Consent are two words that have had little use in this round of the America's Cup.
In her decision of 19 November Kornreich wrote:
ORDERED, in accordance with the Panel's Opinion and this Decision and Order, that the parties shall attempt to reach a binding agreement regarding SNG's declared intent not to hinder ISAF's appointment of an independent and objective International Jury. The parties shall report to the court in writing by December 4, 2009, on their success or failure to reach an agreement, and any more dispute on this issue will be referred back to the Expert Panel for recommendations;
Given that the Challenger, Golden Gate Yacht Club, and Defender, Societe Nautique de Geneve, have not agreed on anything for the past two years of this sorry saga, it would be a major surprise if they could get onto the same page on any issue governing the regatta.
That assumption being so, then both are off for another session in front of the Headmistress, and to confess that they haven't been unable to complete their homework by the prescribed time.
Justice Kornereich's response will be to give the miscreants Three of the Best, in this case the Expert Panel she established to advise the Court on five technical issues, namely David Tillett (Australia), Bryan Willis (Great Britain) and Graham McKenzie (New Zealand).
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An extract from Justice Shirley Kornreich’s Decision of 19 November giving the parties until 4 December to agree on how the Int Jury would operate for the 33 America’s Cup. -
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That group is expected to form the basis of the International Jury for the event, except that it will be expanded to five, to comply with the regulations of the International Sailing Federation.
At least one other member will be an International Judge, the fifth member will either be another member of the legal profession like McKenzie, or an ISAF International Judge. Of the current Panel, Tillett wears both hats, and Willis, the same - with his legal background coming from the years spent as a Magistrate on the Isle of Wight.
In its wisdom the International Sailing Federation gave the Defender, and event organiser, Societe Nautique de Geneve some fairly impressive powers, in the now infamous secret agreement signed between the two bodies - which was only released into the public gaze after neither party would admit as to who wanted it to be secret.
One of the more contentious issues in that agreement were the powers of Jury appointment given to SNG. And it was this task that Justice Korneich asked them to resolve between themselves. Of course having got themselves into the position of being able to approve an ISAF nominated Jury, SNG were unlikely to do a backflip and run under the same rules as everyone else.
For its part Golden Gate were deeply suspicious of the motives of a Jury appointed under this process, regardless of the integrity of the individuals involved.
It is likely that the Panel/Jury will appoint two more members of their own, taking advice from ISAF, or ISAF will appoint directly. Either way there is likely to be little difference in the outcome.
Once in place the Expert Panel plus Two will become the announced Jury, but they are unlikely to start operating until the vexed issue of insurance and personal indemnity is resolved.
This is a common issue with America's Cup officials who generally won't start work until they are well covered - for obvious reasons. Such concerns are even more obvious given the amount of time these two competitors have spent in Court and the millions that must have been spent on legal fees and other expenses. As an official, why would you even want to be involved?
Quite how the Jury will work in the build up to the Regatta is another matter. It doesn't take laser-like perception to realise that Justice Kornreich has grown rather tired of watching the lawyers play musical chairs, in her Courtroom, and that it is time for the Jury to take over,
Will the Jury be expected to give up their normal professions and sequester themselves in Valencia until 15 February?
Could the parties agree to conduct Hearings by telephone and video conference? Or should the Jury hold meetings in the Southern Hemisphere, where Tillett and Mckenzie reside and Willis is not too far away?
A few long trips Down Under might dampen their ardor for endless and tedious argument, and that would be no bad thing.
A formal announcement from the Court and the ISAF is expected within 24 hours.
PS: Soon after this story was written ISAF announced the International Jury will comprise of NYSC's Expert Panel plus two additional International Judges.
by Richard Gladwell
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