Emirates Team New Zealand.

[Kate short for Bob]

Ah I see comprehension is not a strong suit either. This is analogous to suggesting that murder is not illegal if you don't get caught. Fucking genius!

LOL - your analogy is way off.  Do you think that ETNZ's actions are not subject to intense scrutiny continually by better legal brains than you?  If they succeed then they can't be invalid otherwise they wouldn't have succeeded.

 

[Tornado-Cat]

I AM NOT A LAWYER.  THIS IS ENTIRELY SPECULATION ON MY PART.

Entry Agreement for AC 37:

"Para 14.2 (iii) paragraph B.

The Defender and Challengers agree that the matches in the 38th Americas Cup shall be held in the AC 75 class.  Each Challenger and the Defender relies upon this paragraph in this agreement to invest in excess of $50 million in developing an AC75 design.  If a party to this agreement is accepted as a challenger for the 38th Americas Cup , they shall consent to the AC 75 as the class of yacht to be used in any challenger series and the match. If a party to this agreement is the Future Defender in the 38th Americas Cup (Future Defender) , they shall consent to the AC75 as the class of yacht to be used in any challenger series and the match. The Future Defender shall give preference to a receiving a challenge from a party to this agreement or a yacht club that has committed to using the AC 75 . If a party to this agreement consents to any other yacht for 38th, they agree that they shall reimburse all of the participants in the 37th Americas Cup the development costs of $50 million per team. The parties agree that this represents true and accurate damages incurred for a breach of this agreement.

Nothing in this paragraph shall be construed as considering a challenge. The parties have not agreed who shall be the challenger and defender for AC 38."

In short, I am asking the legal wizards on this site whether they could construe a binding commitment to use the AC75 in AC 38, without it constituting a challenge or "considering " a challenge

[SIZE=17.8807px]"Any organized Yacht Club of a foreign country,.........[/SIZE][SIZE=17.8807px]shall always be entitled to the right of sailing a match of this Cup[/SIZE][SIZE=17.8807px]"[/SIZE]

 

[jaysper]

LOL - your analogy is way off.  Do you think that ETNZ's actions are not subject to intense scrutiny continually by better legal brains than you?  If they succeed then they can't be invalid otherwise they wouldn't have succeeded.

LOL! Oh well, I normally love a good debate, but when someone is either such a sycophant for their team, lacking in basic intelligence, or possibly in your case both thats when it stops being fun.

So have fun trying to debate this with the other people on this forum who are likewise vastly more intelligent than you and vastly more interested in dribble than I am.

 

[strider470]

[SIZE=17.8807px]"Any organized Yacht Club of a foreign country,.........[/SIZE][SIZE=17.8807px]shall always be entitled to the right of sailing a match of this Cup[/SIZE][SIZE=17.8807px]"[/SIZE]

they say

the right of sailing

not

the right of challenging

Interesting

 

[Rennmaus]

LOL - your analogy is way off.  Do you think that ETNZ's actions are not subject to intense scrutiny continually by better legal brains than you?  If they succeed then they can't be invalid otherwise they wouldn't have succeeded.

That's what Ernie "We have the best lawyers" Bertarelli thought too. In the end, many of the SAAC posters were right, Ernie and his gang were wrong.

 

[Kate short for Bob]

LOL! Oh well, I normally love a good debate, but when someone is either such a sycophant for their team, lacking in basic intelligence, or possibly in your case both thats when it stops being fun.

I'm not a sycophant to anyone nor I assure you do I lack in basic intelligence nor do I have the arrogance to question yours.

But if you think that ETNZ doesn't have a great team of lawyers on their payroll then at best you are naive.  You only have to look at the major legal fights during this last Cup to see that they have a pretty good legal team.

 

[Kate short for Bob]

That's what Ernie "We have the best lawyers" Bertarelli thought too. In the end, many of the SAAC posters were right, Ernie and his gang were wrong.

When was the last time ETNZ lost a major legal stoush regarding the AC?

 

[porthos]

So Porthos, can you construct any kind of binding agreement that would allow the participants to know that AC38 will be in the AC75 .  Is there no wording of a side agreement that would not constitute a breach of the "considering " a challenge and would not be a breach of DoG.

If we all agree to use AC 75s, does this truly amount to a challenge " considered" .  Possibly with your inestimable skills of distinguishing you could distinguish between agreeing a term between potential challengers and defenders and actually considering a challenge . With no defender and no challenger, surely a challenge cannot be considered but a term can be agreed.

Your side agreement language in your previous post is how you could do it (this came up in some earlier thread). You have a large financial penalty that the breaching party has to pay. It's basically a side agreement between the two parties that the winner will choose the loser as the CoR and the parties will use the AC75 in AC38. If the winning party breaches that agreement, then the winner can go ahead and select someone else to be CoR for AC38 and can use any other Deed-compliant boat as the Deed permits,  but would have to pay, well, a boat-load of money to the losing party.  But all of that is Deed compliant.

They could even publish this agreement to let other teams know that they should go ahead and start planning for AC75's in AC38 while ETNZ and INEOS get busy with AC37. Problem with that is you would be asking teams to spent millions of dollars with no guarantee that AC38 will actually involve the AC75. Relationships change over time. ETNZ did not select LRPP as CoR again. If there is one thing I have learned in drafting contracts, plan for when the relationship falls apart because it will. So I'm not sure your promise of things that will happen would be enough to encourage teams to take that leap of faith.

The press release seems to suggest that AC37 will be a multi-challenger event, and that agreeing to use the AC75 in AC38 "will be a condition to entry."  If that is the case, there is a theoretical problem with the Deed, as there can be no defender and challenger in AC38 until AC37 is done, and no parties means no mutual consent, means you can't agree on AC75's now.  But here's the thing: if nobody objects, then it doesn't matter. If everyone wants to use AC75s for AC37 and AC38, the NYSC isn't going to do anything about it on its own. I supposed the NY AG could raise a stink but she certainly couldn't care less about the AC.  So if everyone is onboard, you can do pretty much whatever you want.   

 

[Rennmaus]

When was the last time ETNZ lost a major legal stoush regarding the AC?

Ernie also lost only once, but flat out.

 

[The Advocate]

Your side agreement language in your previous post is how you could do it (this came up in some earlier thread). You have a large financial penalty that the breaching party has to pay. It's basically a side agreement between the two parties that the winner will choose the loser as the CoR and the parties will use the AC75 in AC38. If the winning party breaches that agreement, then the winner can go ahead and select someone else to be CoR for AC38 and can use any other Deed-compliant boat as the Deed permits,  but would have to pay, well, a boat-load of money to the losing party.  But all of that is Deed compliant.

They could even publish this agreement to let other teams know that they should go ahead and start planning for AC75's in AC38 while ETNZ and INEOS get busy with AC37. Problem with that is you would be asking teams to spent millions of dollars with no guarantee that AC38 will actually involve the AC75. Relationships change over time. ETNZ did not select LRPP as CoR again. If there is one thing I have learned in drafting contracts, plan for when the relationship falls apart because it will. So I'm not sure your promise of things that will happen would be enough to encourage teams to take that leap of faith.

The press release seems to suggest that AC37 will be a multi-challenger event, and that agreeing to use the AC75 in AC38 "will be a condition to entry."  If that is the case, there is a theoretical problem with the Deed, as there can be no defender and challenger in AC38 until AC37 is done, and no parties means no mutual consent, means you can't agree on AC75's now.  But here's the thing: if nobody objects, then it doesn't matter. If everyone wants to use AC75s for AC37 and AC38, the NYSC isn't going to do anything about it on its own. I supposed the NY AG could raise a stink but she certainly couldn't care less about the AC.  So if everyone is onboard, you can do pretty much whatever you want.   

How about just like it has been done previously? This is not new ground.

 

[porthos]

How about just like it has been done previously? This is not new ground.

Can't speak to that. I only showed up around here after AC32 and am unfamiliar with how things ran before then.

 

[The Advocate]

Can't speak to that. I only showed up around here after AC32 and am unfamiliar with how things ran before then.

J's, 12's, IACC. The stakeholers have a conversation and decide. It is a model that works. A team telling others what they are going to sail in future events is a model that doesn't work.

 

[Tornado-Cat]

But if you think that ETNZ doesn't have a great team of lawyers on their payroll then at best you are naive.  You only have to look at the major legal fights during this last Cup to see that they have a pretty good legal team.

The NYYC too.

 

[porthos]

J's, 12's, IACC. The stakeholers have a conversation and decide. It is a model that works. A team telling others what they are going to sail in future events is a model that doesn't work.

Oh, I certainly understand that there were classes of boats that stuck around for several cycles. I just don't know if there was any formal written agreement amongst the teams to that effect. 

 

[Blitzkrieg9]

The NYYC too.

Not to mention the DoG is governed by the laws of the State of New York.  So dollar for dollar, NY lawyers will be better than NZ lawyers in matters related to the DoG.

 

[Kate short for Bob]

Oh, I certainly understand that there were classes of boats that stuck around for several cycles. I just don't know if there was any formal written agreement amongst the teams to that effect. 

Does it have to be a "formal written agreement"?  Wouldn't a quiet beer and a handshake suffice?

 

[Blitzkrieg9]

Does it have to be a "formal written agreement"?  Wouldn't a quiet beer and a handshake suffice?

No no no, dummy. A beer and a handshake will never suffice as binding.  Even a first year law student knows that there must be "breaking of bread" for an implied oral contract to have validity. 

 

[porthos]

Does it have to be a "formal written agreement"?  Wouldn't a quiet beer and a handshake suffice?

Not at all. I had no ulterior motive other than to confirm that I have no idea how they did it. A quiet beer sounds better. 

 

[The Advocate]

Does it have to be a "formal written agreement"?  Wouldn't a quiet beer and a handshake suffice?

Once upon a time in a land far far away.......

 

[Kate short for Bob]

No no no, dummy. A beer and a handshake will never suffice as binding.  Even a first year law student knows that there must be "breaking of bread" for an implied oral contract to have validity. 

Give us a break of course it isn't "binding"!  But ETNZ have all the cards.  Trust still counts.  If one or other breaks an agreement even if not written then it is game on again.  Technically by the rules ETNZ didn't agree to any Challenger  BEFORE the final race but that's not to say an agreement wasn't reached.