17th April 2012 JURY CASE AC12 JURY NOTICE JN038 CLOSURE APPLICATION
1. On 1st March 2012, the Jury Chairman received a letter from Hamish Ross, General Counsel, America’s Cup Race Management Limited: ‘Re: Club Nautico de Valencia & Green Comm – Non-Payment of Costs – Request for Confidentiality
It is with regret that ACRM informs the Jury that Green Comm representing Real Club Nautico de Valencia, has failed to pay the Jury’s costs as ordered by JN022.
ACRM understands that payment of costs by Green Comm awarded to Artemis and Aleph (Aleph's costs are now due to ACRM who carried out the repairs to Aleph’s AC45) also remain unpaid, despite further time being granted for payment by the respective recipients.
ACRM respectfully submits a final but brief opportunity to make payment be afforded to Real Club Nautico de Valencia and its representative Green Comm coupled with an order suspending of its challenge meanwhile, and if the sums due are not paid, the challenger be ordered to be disqualified from the Event, but without prejudice to their liability to make the payments awarded by the Jury, and such further costs as the Jury considers just and equitable pursuant to art. 15.3(a) of the Protocol.
Publicity of this matter is likely to have an adverse effect on any sponsorship and other fundraising efforts presently underway by Green Comm to enable payment to be made. ACRM requests this communication and the resulting proceedings be ordered by the Jury to remain strictly confidential to ACRM, Real Club Nautico de Valencia, Green Comm and other directly interested parties pending final determination.
The Jury’s Rules of Procedure (rule 6 and rule 7) allow for orders of confidentiality to be made. ACRM submits there are reasonable grounds as stated above to conclude that there is a substantial risk of serious damage should Real Club Nautico de Valencia and/or Green Comm’s identity and these proceedings be publicly disclosed pending final determination.
ACRM recommends all communications with the Challenger be made to both the challenger yacht club Real Club Nautico de Valencia and its representative Green Comm. A copy of this letter has not been forwarded to Real Club Nautico de Valencia or Green Comm pending the Jury’s directions.’
2. On 4th March 2012 the Jury issued Jury Notice JN036 in which it made a Confidentiality Order requiring that until a final resolution of the matter, the Application and proceedings shall be confidential to ACRM, AC Event Authority, GGYC, Green Comm Challenge, RCNV, Artemis Racing, Aleph and such other Parties as the Jury may later determine.
3. Green Comm Challenge and RCNV were given leave to jointly waive confidentiality, but were requested to first advise the Jury Chairman and ACRM that they have both agreed to waive confidentiality. No such advice has been received.
JURY ACTING AS AN ARBITRAL BODY
4. Acting as an arbitral body in accordance with Article 15.4 of the Protocol, on 23rd December 2011 the Jury published Jury Notice JN022 which included a Decision not to re-open Case AC05 and confirmed the sums payable by Green Comm Challenge by 14th February 2012 as being:
To ARTEMIS: €32,472 + €27,688 Total liability: €60,160.00
To ALEPH: €9,139.95 + €3,800 Total liability: €12,939.95
To America’s Cup Race Management: Costs of €6,500.00
DIRECTIONS and WARNING
5. In Jury Notice JN036 of 4th March 2012, the Jury directed Green Comm Challenge to pay all outstanding sums to the relevant Parties by 18th March 2012.
6. The Jury Notice warned that unless by 18th March 2012 Green Comm Challenge or RCNV had paid the sums due or made a submission to the Jury proposing how the matter might be otherwise promptly resolved to the reasonable satisfaction of the Jury and any affected Party, the Jury would, without further notice, invoke Protocol Article 15.4 (d) (vi) by disqualifying RCNV from further participation in the Event.
7. The Jury has been advised that no payments have been received by Artemis Racing, Aleph, or ACRM. Furthermore, the Jury had not received by 29th March any proposal from Green Comm Challenge or RCNV as how the matter might be otherwise resolved.
REQUEST FOR FURTHER TIME
8. On 30th March 2012 the Jury received an email dated 29th March from Manuel Pons, the President of Real Club Nautico de Valencia:
We have been surprised upon receiving news that a case called AC34-RCNV-Case-12 exist. Even more the information provided to RCNV says that Green Comm Challenge has not paid a debt of 80.000 €.
We were informed yesterday March 28th by Mr. Luis Sáenz Mariscal, as we have received no previous communication. Therefore we ask you to send all the information about this case to RCNV, by e-mail to email@example.com or through the appropriate course. Therefore we ask ACRM for an extended period for studying the case and contact Green Comm Challenge to clarify the situation.
Once we have all the information, we will study it and let you know our position in the shortest term possible.
For any further communication, please send it to the above e-mail or to our address:
Att.. Manuel Pons (President)
REAL CLUB NAUTICO DE VALENCIA
Camino del Canal, 91
46024 - VALENCIA
9. In its Notice of Challenge, Real Club Nautico de Valencia named its representative as Green Comm (para 7: ‘The Challenger will be represented by Green Comm Challenge’). Green Comm provided addresses for Service (See http://noticeboard.americascup.com/
> Jury > Service address List). The addresses provided were used for the serving of Jury Notices including those relating to Case AC12. The Jury does not, therefore, accept that Real Club Nautico de Valencia was not properly served.
FURTHER TIME EXTENSION
10. In an email dated 31st March 2012 addressed to President Manuel Pons, the Jury extended the deadline to 2nd April 2012.
11. On 2nd April President Manuel Pons García sent the Jury an email:
Thank you for your letter dated the 31st of of March in which you include the relevant Jury Notices relating to the case and in which the Jury grants us two days to resolve the matter (until today 2nd of April).
The RCNV now understands that the communications from the Jury have been properly addressed to the stipulated addresses for service of the Jury. We do not dispute that fact, but at the same time we do desire to bring to the attention of the Jury, that the RCNV had no news, notifications or
knowledge, of this procedure and that the e-mail address submitted in our notice of Challenge, for the RCNV, was never used.
Obviously, Green Comm Challenge had the duty to communicate to the RCNV the existence of this procedure and the extremely grave consequences announced by the Jury with the 18th March Time Limit.
We have immediately addressed Green Comm Challenge, and his Principal, Francesco de Leo, (a copy of such communication is attached).
He has reply that he is this afternoon he will be available to speak.
Our intention is to solve this matter favorably, with the payment of Green Comm Challenge of the dues imposed by the Jury.
We appreciate the additional time given by the Jury, however it has not been sufficient to properly address the matter with Green Comm Challenge, specially taking into account that the 31st and the 1st were a Saturday an a Sunday.
At the same time, there is a complete contract between RCNV and Green Comm Challenge by which Green Comm Challenge is responsible to effect any and all payments related to the participation in the America's Cup. Likewise, in good contractual practice, the RCNV may not withdraw its challenge without first giving proper notice to Green Comm Challenge.
Therefore, we respectfully inform to the Jury our intended course of action:
1. The RCNV request to the Jury an additional time until 18:00 of Friday 13th of April, with the aim to put pressure on Green Comm Challenge to procure effective payment of the dues by Green Comm Challenge.
2. The RCNV will immediately request in writing to Green Comm Challenge (and orally to Francesco de Leo) full payment of all dues mentioned above in the next few days limited by 18:00 of Thursday the 12th of April with the severe warning that lack of payment will in RCNV taking all the legal steps to ensure that no harm is made to either ACRM and or RCNV due to the lack of fulfilling Green Comm Challenge obligations as per the contract subscribed with RCNV.
3. Should Green Comm Challenge not pay the dues as required by the JN to Artemis, Aleph and ACRM by 18:00 of Thursday the 12th of April, then the RCNV will communicate to the Jury and to the Golden Gate Yacht Club.
4. Should Green Comm Challenge pay the full dues, then the RCNV will consider the best course of action.
5. The RCNV will communicate to the Jury before the time limit of 18:00 of Friday of the status of the situation and its final decision on the matter.
The RCNV will proceed with the above plan and we respectfully request to the Jury to delay an the eventual decision of suspension and disqualification until 18:00 of Friday 13th of April so the RCNV may properly address with Green Comm these issues in light of our agreement and as advised by our legal services.
Hoping for your understanding and cooperation in this unusual situation,
Sincerely, Manuel Pons García, President RCNV
ATTENDANCE IN NAPLES
12. The Jury has been advised by ACRM that Green Comm Challenge has notified them that they cannot attend the ACWS event in Naples. This information is not subject to the Confidentiality Order. The Jury has agreed to allow some limited additional time to make payment on the express basis that RCNV and GC will not attend the ACWS event in Naples (11th to 15th April) or participate in such event in any form as a Competitor pursuant to the Protocol.
JURY’S RESPONSE (JN037)
13. In response to the request from the President of RCNV, the Jury agreed to extend the deadline by which all outstanding payments stated in paragraph 4 were to be made, to 23h59 Universal Time (UT) on 9th April 2012.
14. The total outstanding amount of €79599.95 was directed to be paid into the specified bank account of ACRM Operations Limited.
15. If by the time specified in paragraph 13 the full payment had not been made, then unless RCNV had withdrawn, RCNV/Green Comm would be disqualified in accordance with Protocol Article 15.4 (d) (vi) from further participation in the Event. The Jury stated that it would in such circumstances immediately issue a further Jury Notice confirming such disqualification unless RCNV had earlier elected to withdraw.
16. JN037 further stated: ‘This does not affect any antecedent claim or other rights Parties may otherwise have against Green Comm Challenge or RCNV with regard to matters concerning Case AC05 including the payments awarded or otherwise that may arise under the Protocol.
17. It is a condition of the granting of the request for an extension of time that RCNV/GC may not participate until further order in any manner at the Naples Event, nor is ACRM or ACEA obligated to provide to RCNV/GC any services or facilities at that event.’
18. The Jury has received advice from ACRM that no funds were received in the account of ACRM Operations Limited by 23h59 Universal time (UT) on 9th April 2012. 19. On 10th April 2012, GGYC advised the Jury that RCNV has withdrawn its Challenge. Therefore the Jury now records that RCNV (and its representative team Green Comm Challenge) is no longer a Competitor in the 34th America’s Cup. 20. This does not affect any antecedent claim or other rights Parties may otherwise have against Green Comm Challenge or RCNV with regard to matters concerning Case AC05 including the payments awarded or otherwise that may arise under the Protocol.
21. As indicated in Jury Notice JN037, the Confidentiality Order described in paragraphs 2 & 3 is lifted. All Jury Notices relating to this Case are available to all Parties and will be released into the public domain. AWARD OF COSTS 22. In accordance with the Jury Guidelines for the Award of Costs and Expenses published on 13th August 2011, the Jury considers it is just and equitable that costs of Euros 8,750.00 are awarded. This amount is to be paid by Green Comm Challenge within 14 days of this Decision to: ACRM Operations Ltd Account Number: xxxxxxxxxxxxxxx
JURY: David Tillett (Chairman), John Doerr, Josje Hofland, Graham McKenzie, Bryan Willis.http://noticeboard.a...11/08/JN038.pdf