Emirates Team New Zealand.

Stingray~

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Any agreement, formal or not, that extends past AC37 and into AC38 will not survive a NYSC case.
 

The idea that exclusive ‘hip-pocket’ challenge agreements can go more than one cycle suggests the possibility of it being legal to do them ad infinity, it will never survive the court case over the Deed that the NYYC Commodore already said would happen.

Instead of trying to strong-arm the NZ tax and rate payers, or sucking SJR’s cock, GD should simply find a better $B than MdN. If anyone else had won Ac 36 we be seeing none of this money-twisting BS. 

 
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Blitzkrieg9

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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.
My friend...  my comment was completely in jest!  Please reread it.  I thought it was quite humorous. :)

 

Kate short for Bob

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My friend...  my comment was completely in jest!  Please reread it.  I thought it was quite humorous. :)
My apologies if you misconstrued my response as being an aggressive response.  Sadly that is the downside of social media with the added dimension of social distancing!  I'm sure the tenor of many a discussion on SA would progress much differently over a beer in a bar!

 

Stingray~

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My apologies if you misconstrued my response as being an aggressive response.  Sadly that is the downside of social media with the added dimension of social distancing!  I'm sure the tenor of many a discussion on SA would progress much differently over a beer in a bar!
The general agreement that this beer is your last welcome to be at the bar, would happen very soon. ‘Trust still counts’ even in real life.. 

 
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Kate short for Bob

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The general agreement that this beer is your last welcome to be at the bar, would happen very soon. ‘Trust still counts’ even in real life.. 
I'm not so sure of that.  I've never had that experience in real life.  What I am sure of is that your continual negativity and searching for rabbits down holes and ghosts would be quickly ameliorated around a bar leaner!  Hell some of us still remember you pursuit of the missing $3m and the denial of Mayo and Calder's stuff up.

Actually does anyone know how that Mayo and Calder court case is going?

 

Sailbydate

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I'm not so sure of that.  I've never had that experience in real life.  What I am sure of is that your continual negativity and searching for rabbits down holes and ghosts would be quickly ameliorated around a bar leaner!  Hell some of us still remember you pursuit of the missing $3m and the denial of Mayo and Calder's stuff up.

Actually does anyone know how that Mayo and Calder court case is going?
Better yet, does anyone actually give a rat's arse?

 

EYESAILOR

Super Anarchist
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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 all the parties that the winner will choose the loser as the CoR and the parties will consent to 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 all the other competitors  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. why not? If 2 parties can agree to use AC75 and be deed complaint, why cannot 4 or 5 parties agree to use AC75s?  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.   
Thanks Port

It is still kind of murky for me....see my questions in the text.

I get that a defender cannot consider a challenge until the present challenge is complete.

But what does "consider" mean? 

How does the deed and the term "consider a challenge" prohibit a group of competitors (who do not know who will become the future defender and do not know who will be the next challenger) sitting around a table and creating a contractual obligation between them in case one of them becomes the future defender.

In this case, they can agree that the expenditure in creating the infrastructure to design and build AC75s is so large that they need to know that two events will be held in the AC75 in order to enter the first event.

The deed effectively say you can only consider one challenge at a time but does it prohibit agreements between potential challengers and potential defenders prior to considering a challenge.

 

Tornado-Cat

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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.
Using taxpayers money to pay for lawyers, well...

 
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Paddywackery

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Spot on, both of you. The money in the family comes from Matteo’s paternal uncle Oronzio, who was very successful selling electrolysis units for caustic soda and sodium hypochloride - bought a couple for one of my projects. Today, his grandchildren head a very nice mini-multinational

But Matteo doesn’t belong to that branch: in his forties he was given some money to stay out of the way and dabbled in finance. After a car racing accident he decided even that was too much, and started cruising the world.
And he doesn't have Billionaire status or pockets. Wealth for sure, but not of the level that can sustain ETNZ.

 

Paddywackery

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If $B Matteo is forcing GD to strongarm NZ for money, to save from his own poecketbook, well then GD needs to find a much better $B. :)  
 

We wouldn’t be facing all the crap to come had any other team won AC36. The current ETNZ funding model has failed, this game should (and mostly is) still be funded by real $B’s. 
And without unlimited budgets, you can only fund each campaign which ETNZ has done well. It's the follow on investment by all the team principals that's been compromised by the 1 v 1 murmurings which excludes other teams. 

 

porthos

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Thanks Port

It is still kind of murky for me....see my questions in the text.

I get that a defender cannot consider a challenge until the present challenge is complete.

But what does "consider" mean? 

How does the deed and the term "consider a challenge" prohibit a group of competitors (who do not know who will become the future defender and do not know who will be the next challenger) sitting around a table and creating a contractual obligation between them in case one of them becomes the future defender.

In this case, they can agree that the expenditure in creating the infrastructure to design and build AC75s is so large that they need to know that two events will be held in the AC75 in order to enter the first event.

The deed effectively say you can only consider one challenge at a time but does it prohibit agreements between potential challengers and potential defenders prior to considering a challenge.
If everyone agrees to it, it doesn't really matter what the Deed says.  Everything will work just fine. That's basically what The Framework agreement was -- an agreement between teams as to how to handle future ACs.  The Framework wasn't problematic because it was voluntary. ETNZ didn't sign on, but wasn't precluded from participating so they had no reason to take any legal action.

You only run into a problem if there is a team that ends up unhappy because they are being forced to (via a non-discretionary agreement) do something they don't want to and elects instead to blow the whole thing up in court. That's the GGYC/SNG/CNEV scenario.  That disgruntled team will need to point to something in the arrangement/agreement/etc. that violates the Deed. If that arrangement attempts to dictate boats or other terms of AC38 before AC37 is over, the disgruntled team has something to complain about based on the Deed provisions we have, at this point, discussed ad nauseum (that a current defender cannot limit the challenge rights a club may have in a future cup cycle). The court would probably just say: (1) that the provisions of the protocol or whatever agreement attempting to set terms for AC38 are void; and (2) get out of my courtroom and settle this on the water.

 
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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
Good to see it in writing. Hard to say what to make of it.

It is hard to say because neither of the appellate decisions in the MBBC case or the GGYC case interprets the “no other challenge can be considered until the pending event has been decided” clause. I don’t know if an undisturbed part of the lower court decisions addresses it, and I haven’t seen any law review articles that analyse the clause either, but they may be out there.

So, whether a court would invalidate the RYS challenge because of this “no other challenge” clause is speculative. But we do have a rough idea of how a court would approach the analysis, to the extent that the clause is unambiguous: “Because the deed provisions on these issues are unambiguous, we may not look beyond the four corners of the deed in ascertaining the donors' intent and therefore may not consider any extrinsic evidence on the meaning of these provisions” (MBBC, p. 269-270).

The text of the clause is therefore what needs to be analysed, which requires determining what a “challenge” is, what it means to “consider”, among other things such as intent and purpose.

Para 14.2 above does not, at first blush, look like a “challenge”. A “challenge” would seem to be more than a stipulation in an agreement about what each team will do in the event they win, which is what para. 14.2 (iii) para. B above provides. They are mutual promises of the RYS and the RNZYS to favour challenges using the AC75 for AC38. A court may very well conclude that a “challenge” pursuant to the DoG is something more than that, like a statement presented in writing stipulating the terms of the match, including the date, location, etc., by a prospective AC38 challenger. A court could further conclude that to constitute a “challenge” it must contain all the details that would need to be known in order for the match to take place. Knowing the boat to be favoured would not be enough.

Even if a court concludes that the clause above is “a challenge”, it must still conclude that the challenge has been “considered” by the winner of AC37. I have no idea what that term should mean under the DoG. One would think that RNZYS considered RYS’s challenge before AC36 concluded, otherwise that is a very quick turnaround to announce the details of AC37. AC36 ended what 3 days ago?  

I don’t really know about the validity of the RYS challenge; but if I had to bet, I’d say it’s DoG-compliant.  Just my two cents.

 

1eyedkiwi

Member
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New Zealand
Good to see it in writing. Hard to say what to make of it.

It is hard to say because neither of the appellate decisions in the MBBC case or the GGYC case interprets the “no other challenge can be considered until the pending event has been decided” clause. I don’t know if an undisturbed part of the lower court decisions addresses it, and I haven’t seen any law review articles that analyse the clause either, but they may be out there.

So, whether a court would invalidate the RYS challenge because of this “no other challenge” clause is speculative. But we do have a rough idea of how a court would approach the analysis, to the extent that the clause is unambiguous: “Because the deed provisions on these issues are unambiguous, we may not look beyond the four corners of the deed in ascertaining the donors' intent and therefore may not consider any extrinsic evidence on the meaning of these provisions” (MBBC, p. 269-270).

The text of the clause is therefore what needs to be analysed, which requires determining what a “challenge” is, what it means to “consider”, among other things such as intent and purpose.

Para 14.2 above does not, at first blush, look like a “challenge”. A “challenge” would seem to be more than a stipulation in an agreement about what each team will do in the event they win, which is what para. 14.2 (iii) para. B above provides. They are mutual promises of the RYS and the RNZYS to favour challenges using the AC75 for AC38. A court may very well conclude that a “challenge” pursuant to the DoG is something more than that, like a statement presented in writing stipulating the terms of the match, including the date, location, etc., by a prospective AC38 challenger. A court could further conclude that to constitute a “challenge” it must contain all the details that would need to be known in order for the match to take place. Knowing the boat to be favoured would not be enough.

Even if a court concludes that the clause above is “a challenge”, it must still conclude that the challenge has been “considered” by the winner of AC37. I have no idea what that term should mean under the DoG. One would think that RNZYS considered RYS’s challenge before AC36 concluded, otherwise that is a very quick turnaround to announce the details of AC37. AC36 ended what 3 days ago?  

I don’t really know about the validity of the RYS challenge; but if I had to bet, I’d say it’s DoG-compliant.  Just my two cents.
I have been giving a lot of thought to whether the condition of agreeing to the AC75 for 2 cycles is in breach of the DoG and my view is:

1.  The material terms of the DoG are: 

     a.  After a Cup cycle has concluded, any suitable yacht club can lodge a challenge provided they are first in; 

     b.  If it comes from a suitable club then the defender has to accept it. 

     c.  The parties then either mutually agree on terms or if they can't agree then the DoG sets out what happens.  The key here is that the Defender doesn't decide.  The Defender and CoR decide mutually.

2.  The only way I think ETNZ/INEOS could bind challengers for the AC38 would be by requiring a challenger, if they won, to only accept a challenge from a club that also wanted the AC75s.  But a Defender cannot require a challenger to agree to anything.  

The above raises 2 issues:

1.  It is arguably in breach of the DoG to require a future defender to only accept a particular challenge when defenders have no such right; and

2.  There is a risk for challengers agreeing to that condition.  If they won the AC37 and none of the AC37 challengers wanted to be the CoR then they may be in a position where they had to accept a challenge from a club that didn't want the AC75s.  They could therefore, through no fault of their own, be in breach of their agreement under the AC37 protocol.  

 
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Tornado-Cat

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Huh?  I have no idea what you are implying.
I was agreeing with you.

I mean that part of the TNZ budget come from Kiwi taxpayers who are very happy to support their team on water, but would less appreciateto see their money spent to pay US lawyers.

 
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jaysper

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I was agreeing with you.

I mean that part of the TNZ budget come from Kiwi taxpayers who are very happy to support their team on water, but would less appreciateto see their money spent to pay US lawyers.
It will depend on WHEN this happens.

The further from the glow of victory we get, the less tolerance there will be for this shit.

Of course, any such defence will be met with the normal Dalts charm offensive (i.e. they're all cunts).

However I doubt Dalts would bother trying to defend anything that isn't a relative slam dunk.

 

trt131

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Everybody seems to be concentrating on having to use the AC75s again for AC38. 

How about the premise that if INEOS win the match out of Cowes, they would defend the cup in Auckland in 2024.  Does anyone really think that would happen.  I guess that's the pitch to the government.

 

dg_sailingfan

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I wonder if Grant Dalton will even wait the 90 Days for the NZ Government to make a Decision if he sees a stalemale coming and no progress being made.

 
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