M’learned friends are squaring up

M’learned friends are squaring up

July 28, 2007, 5:32 pm
Filed under: America's Cup

If justice is on your side, then argue justice. If the truth is on your side, then argue the truth. If you have neither, then argue the law. Lord knows how many time I have quoted that and now, it seems, that, unfortunately, the minutiae of legal interpretation will determine not necessarily the format of the next America’s Cup but the power struggle between two rich and stubborn men.

While it is easy to have some sympathy with the sentiment of Larry Ellison’s complaint about the terms and tone of the protocol presented by Ernesto Bertarelli’s America’s Cup Management on behalf of the Société Nautique de Geneve, it is tempting to say that a little more jaw-jawing should have been attempted before going to war. And, while there was an attempt by Ellison himself to focus on why he feels aggrieved when he coincidentally introduced Russell Coutts as his new ceo and skipper, that appeal on the basis of fair play was hardly given the sort of worldwide push that could have built a head of steam against the protocol for America’s Cup 33.

Perhaps being told that, having dared to stand up to Bertarelli, he would, whatever happened, be frozen out of the next cup, Ellison just shrugged his shoulders and plumped for high noon. But there are always back channels for negotiation and little spotlight has been played on a willingness by either side to reach a settlement.

Claims, fostered by Bertarelli’s Alinghi men, that the petition to the New York Supreme Court was not properly served first time round have been hotly denied by spokemen for the Golden Gate Yacht Club. All was done, they say, according to Hoyle. So the clock, if they are right, is ticking and SNG has 30 days to respond.

In a bid to pre-empt anything the court may decide, Alinghi has referred the legitimacy of the newly-formed Club Nautico Espanol de Vela to be the challenger of record to a three-man arbitration panel appointed by ACM. None of them has been named, but the law firm which represents GGYC, Latham and Watkins, has sent a letter from its Third Avenue, New York office to the man it regards as its chairman, Prof. Henry Peter, at the panel’s Geneva office.

It is gloriously American in its aggression and ebullience, with shades of Rome’s greatest legal orator, Cicero, who developed the tactic of discrediting witnesses in order to discredit that witness’s evidence, even it it were just, truthful and accurate.

James V Kearney says that the format and process of the arbitration panel violate the most basic principles of justice and are an affront to the most basic sensibilities common to all law-abiding people. Do the chattering classes of up and mid-town New York really feel so angrily indignant? He goes on to say that SNG’s proptocol for AC33 was designed to put the fox in charge of the henhouse.

It quotes Peter himself as saying that the New York Supreme Court has jurisdiction over the deed of gift and the right to decide the interpretation of the deed and to decide whether a challenge is valid.

His parting shot says: “The disgrace and shame brought upon the America’s Cup by this charade threatens to inflict a crippling blow to the sport.” Well, the International Sailing Federation may wring its hands and mutter in its beer about its castrated inability to do anything to control its own sport when it comes to the America’s Cup, but the Olympics classes are hanging on and thousands of regattas are enjoyed every weekend around the globe under its racing rules. Many people who say they enjoy sailing do not have a clue that this row is going on and many others could not give a damn.

But going on it is. And neither man is know for backing down. At the press conference called to celebrate, as far as the locals were concerned, the selection of Valencia for a second time, the government minister, regional president, mayor and Bertarelli took care to sing from the same hymn sheet and promise support the CNEV and the Desafio Espanol which spawned it.

But after Bertarelli had delivered his second passionate denunciation of Ellison, regional president Francesco Camps decided enough was enough, stood up and shut the proceedings down.

Having announced that Team New Zealand was joining the Spanish, Britain’s Origin and South Africa’s Shosholoza as challengers under the disputed protocol – negotiations were going on with TNZ until the last minute – Bertarelli may have thought that persuading a former winner of the cup, and therefore one of its trustees, to back that document would be a powerful argument in his locker. Another, more secptical view, may be that challenging is a matter of self-interest at a time when Bertarelli is also saying that no more bases can be built in the America’s Cup port. 

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