Sharing design and performance data

[seis]

As say Stingray when posting the document, it deserves a new trheat.

(excuse my poor english)

http://noticeboard.a...11/08/JN024.pdf

8 questions from Oracle about the possibilities and limits of his collaboration with other equipment, Challenger or Defender.

The most important: .

Any prior agreement or arrangement about sharing performance data is illegal without exception (art. 33.4).

You can share the performance data, but, in this case, you are using the other boat as a "Surrogate Yacht", and you can't build a "second" boat, because it's a "thirth"

The truth is that, after reading the Protocol, the interpretation of the Kiwis-LR was caught by the hair ...

Luna Rossa tries to interprete the 33.1 and 33.2 as guarantors of rights, but the text is trying to put prohibitions limiting collaboration, not ensure rights.

Oracle raises 8 questions from less to more collaboration.

According to the responses to Oracle, before 2013, a team can, without bring consequences:

1 .- Give a complete design to another participant.

2 .- Share molds in different shipyards. Or build in the same yard, provided that it's an independent one, because if one of the teams have already constructed two boats (in "it's" yard), although one of them is for the other team, no more boats can be constructed by the "builder" team.

3 .- Sailing, testing the boats and training together.

(But. .. and here begins the limitations

By sharing the test data of the other boat for the development of your own boat, the other is considered a "Surrogate Yacht" which counts as a second boat, and you can not build a third one. And if they made an agreement to that, then they are falling under the prohibition of 33.4.

4 .- A team can test own boat with the wings, sails, appendages, or other equipment of another team (until 2013), but then the other is using the boat of the first team as a "Surrogate Yacht" and they can not build a second ship.

5 .- Although not sail together, two teams can share performance data, but then both are using the other as "Surrogate Yatch", and can't build a second ship. And if there is prior agreement for sharing, falls under the prohibition of 33.4.

6 .- Members of a team can sail aboard the other for training and development, but then it is the same: both are using two boats to design development, and can not build another.

7 .- In 2013, if they are training together with mixed crews, it is hard to think they do not return with information on performance, prohibited from sharing in that year. And the other boat is used for development, could not build another boat.

8 .- If a team makes a preliminary agreement to take advantage derived from points 1 to 5, is in any case against the prohibition of agreements referred to in 33.4. And that agreement would also have the effect of the two teams are already using two ships, and could not make another one.

_____________________

Result, in my opinion:

Change the names of Oracle and Competitor B for ETNZ and Luna Rossa (or whatever) and you get the following:

The agreement between ETNZ and Luna Rossa is against the Protocol.

They have released the agreement assuming an interpretation of the text of the Protocol has not been accepted (and I think caught by the hair).

Some sayed it would be possible to take advantage of these rules and to make even a second (third) boat if you do not "share" the performance data you get from your boat, but the other team measures your boat from the outside, and you measure the other boat from the outside . If you have two identical boats, the data of resistance and structural loads are the same, and the speed data are not given by the other team, but by you from outside ...

But the problem is that ETNZ and LR have already made public that they have reached an agreement ... without asking about the legality of the agreement ... And now, the prohibition of agreements do not have exceptions. And their interpretation of the Protocol is flawed, and they are out of bounds.

I guess they can say it was an interpretation of good will, break the agreement, and working in the limits we now know it is legal ...

In any case, pending the question asked by Artemis, precisely on the specific terms of the agreement ETNZ-LR. Maybe not needed.

Let's see what happens.

Clearly, these rules allow collaboration between two teams who want to build only one boat each. They take all advantages of sharing everything until 2013, and do not mind not being able to make a second boat (which would be the third prohibited ...). It is possible as long as there is no "agreement", but only actual sharing. This implies that, if you say it's over, it's over. The other has nothing to say.

TEXT:

DISCUSSION on Articles 33.1, 33.2 & 33.4

25. Luna Rossa Challenge 2013, in its submission of 17th December, asserts that '…33.4 is a general anti-avoidance clause that must be interpreted in the context of the rights granted by 33.1 and 33.2'. The Jury disagrees. It is not appropriate to interpret Articles 33.1 and 33.2 as 'giving rights'. Each Article starts with a prohibition, followed by limited relief from that prohibition. The relief relates only to the particular prohibition contained in the Article. For

example, a Competitor may take advantage of the relief described in (a) to (e) in Article 33.2, but must nevertheless comply with Article 33.4 which stands alone and applies at all times.

Each of the clauses in question stands alone, but needs to each be read so that they are consistent with other Articles.

26. The Jury sees no justification to treat any of the four parts of Article 33 as being superior or inferior to any other part, or subject to any 'read-down'. Article 33.4 stands alone and applies at all times. Accordingly, some actions that might not be prohibited by Article 33.1 or 33.2 might be prohibited by Article 33.4.

27. Articles 33.1 and 33.2 are not, as several submissions suggested, 'permissive' rules. They prohibit certain activities after 1st January 2013 that would otherwise not be prohibited.

28. Without Articles 33.1 and 33.2, two Competitors (or potential Competitors) may have a common designer, and may share or exchange AC72 Class design or performance information or equipment, provided there is no 'agreement, arrangement or other understanding', as described in Article 33.4, between the Competitors.

29. However Articles 33.1 and 33.2 tell us that from 1st January 2013, two Competitors (or potential Competitors) may not have a common designer, nor share or exchange AC72 Class design or performance information or equipment.

30. Articles 33.1, 33.2 and 33.4 must be read in conjunction with Article 29.2(a) which provides a clear requirement that Competitors 'may build, acquire or otherwise obtain a maximum of two new AC72 Yachts'.

31. The Jury determines that for Article 33.4 to apply, three requirements have to be satisfied:

(a) There must be an 'agreement, arrangement or other understanding, whether legally enforceable or not', between ORACLE Racing and another entity (e.g. Competitor B (CB));

( B) The arrangement involves CB directly or indirectly building or acquiring one or more yachts of any type; and

© ORACLE Racing can (not 'will' or 'did') directly or indirectly obtain, in any manner whatever, design or performance information regarding CB's yacht for use in the program of design, development or challenge of ORACLE Racing.

THE ORACLE QUESTIONS

QUESTION 1

32. Would ORACLE Racing (OR) and Competitor B (CB) remain compliant with the Rules if OR enters into an arrangement to provide a complete design package to CB for an AC72 Yacht?

This arrangement would conclude prior to 1 January 2013.

33. Answer: Yes. There is no Article that prohibits a Competitor from providing to another Competitor, before 1st January 2013, a 'complete design package' for an AC72 yacht.

QUESTION 2(a)

34. Would ORACLE Racing (OR) and Competitor B (CB) remain compliant with the Rules if OR and CB enter into an arrangement using the same builder(s) to build both AC72 Yachts (including hulls, wings and appendages) and the hulls are constructed to comply with the CIC requirements of the Deed as agreed in the Protocol? This arrangement would conclude prior to 1st January 2013.

35. Answer: Yes. There is no Article that prohibits a Competitor from engaging, before 1st January 2013, a builder who is also building an AC72 yacht for another Competitor. However should the builder not be independent from both Competitors, one of the Competitors will now have built two AC72 Yachts and thus be prohibited from building another by Article 29.2(a).

QUESTION 2( B)

36. Would ORACLE Racing (OR) and Competitor B (CB) remain compliant with the Rules if OR and CB enter into an arrangement using different builder(s) to build both AC72 Yachts (including hulls, wings and appendages) and the hulls are constructed to comply with the CIC requirements of the Deed as agreed in the Protocol? The builders share moulds and/or use moulds that are the same or similar geometry to construct certain components including Hulls, cross structure, Wing Spars, wing flaps and appendages. This arrangement would conclude prior to 1st January 2013.

37. Answer: Yes. There is no Article that prohibits, before 1st January 2013, two Competitors using different builders who share moulds.

QUESTION 3

38. Would ORACLE Racing (OR) and Competitor B (CB) remain compliant with the Rules if OR and CB sail their AC72 Yachts in collaboration? They conduct a two boat test program to develop their design. Each yacht would not sail more than 30 days and this arrangement would conclude prior to 1st January 2013.

39. Yes. There is no Article that prohibits the conducting of mere practice races between two Competitors' yachts but if there is an arrangement to share performance information then there is likely to be a breach of Article 33.4. Also, for both OR and CB the other Competitor's AC72 would meet the definition of 'Surrogate Yacht' (Article 1.1 (xx)). Using such Surrogate Yacht for training or for testing and development as described in Article 29.4 would constitute the acquisition of an AC72. While this does not breach any Article of the Protocol in itself, this would then prohibit either Competitor from acquiring, building or otherwise obtaining another AC72, as limited by Article 29.2(a).

QUESTION 4

40. Would ORACLE Racing (OR) and Competitor B (CB) remain compliant with the Rules if OR tests a component (such as a wing or daggerboards or sails) belonging to CB on its AC72 Yacht?

41. Answer: No. The Jury concurs with ETNZ's submission that using components of another Competitor in their own yacht will inevitably involve the exchange of design and probably performance information which is prohibited under Article 33.2 after 1st January 2013. This may also result in result in CB using a Surrogate Yacht as set out in Article 29.4. While this

does not breach any Article of the Protocol in itself, this would then prohibit CB from acquiring another AC72.

QUESTION 5

42. Would ORACLE Racing (OR) and Competitor B (CB) remain compliant with the Rules if OR and CB share performance data obtained prior to 1st January 2013?

43. Answer: Yes. There is no article that prohibits two Competitors from sharing performance data obtained prior to 1st January 2013, provided Article 33.4 is not breached by virtue of an agreement between the two Competitors. However, both OR and CB will be using each other's boats for their development. They will therefore be Surrogate Yachts for each other, as set out in Article 29.4 and then both of them will be prohibited from building another AC72 Yacht under Article 29.2.

QUESTION 6

44. Would ORACLE Racing (OR) and Competitor B (CB) remain compliant with the Rules if Crew employed by OR sail on CB's yacht while it is sailing in collaboration with OR's yacht? Each yacht would not sail more than 30 days and this arrangement concludes prior to 1st January 2013.

45. Answer: Yes. However, both OR and CB will be using each other's boats for their development. They will therefore be Surrogate Yachts for each other, as set out in Article 29.4 and then building another yacht becomes prohibited under Article 29.2.

QUESTION 7

46. Would ORACLE Racing (OR) and Competitor B (CB) remain compliant with the Rules if after 1st January 2013, OR and CB continue to sail together from time to time? Crew employed by OR would sail on CB's yacht after 1st January 2013 and up until the first race of the Regatta.

47. Answer: Probably not, because it would almost certainly breach Article 33.2. It is hard to envisage that the crew will not return with design or performance information. Because they will also be using each other's boats for development and training they will be Surrogate Yachts for each other, as set out in Article 29.4 and then building another yacht becomes prohibited under Article 29.2.

QUESTION 8

48. Would ORACLE Racing (OR) and Competitor B (CB) remain compliant with the Rules if OR enter into an arrangement to provide what is detailed in points 1, 2(a) or 2( B) , 3, 4 and 5 with CB? OR would build another AC72 Yacht while CB would not.

49. Answer: No. This would breach Article 33.4 and the arrangement would have the effect of ORACLE Racing acquiring a second AC72 Yacht. Should they then build another AC72 Yacht, it would be their third, which would breach Articles 29.2(a).

 

[~Stingray~~]

Thank you Seis. Could anyone please also post the clause text from the Protocol for Articles 29 and 33? (phone/OCR challenged)

 

[estarzinger]

The agreement between ETNZ and Luna Rossa is against the Protocol.

They have released the agreement assuming an interpretation of the text of the Protocol has not been accepted (and I think caught by the hair).

Have you seen the agreement? Is it public? If so, does it in fact say the teams will share performance data or do 2-boat testing? It might well have simple said that TNZ was providing a bolt for bolt design and build (using independent builders) package to LR and they would be sailing independently.

In any case, 33.4 is ambiguous, but the intent seems to be to prevent teams from setting up separate shells which hold extra boats, not to prevent entered AC teams from working together (that's covered in other protocol sections) There are (at least) two possible interpretations of it, and I would suggest that your interpretation is not the one found by the jury because they did NOT state that performance sharing agreements between teams were absolutely prohibited by the protocol (which is what you are saying). The alternative interpretation, which I believe the jury takes, is that having another person build a boat specifically and only for performance data sharing is prohibited - but LR and TNZ are building their boats to train their own teams and to help develop their own 2nd boats and possibly to compete, NOT just only to provide the other party with performance data. And In fact the jury specifically said performance sharing WAS allowed, but with the surrogate yacht problem, so I believe your interpretation of 33.4 is not the Jury's.

As an aside, its a bit of a shame about the sport (of sailing) that legal points such as this (and protest rooms) are such an integral part of the sport (at least at the high end). I can't think of another popular sport where having a legal team on call is a day to day necessity.

 

[PeterHuston]

Somebody ought to ping Vincenzo and ask him what the intent of all this was when he and his club signed the protocol. What were they trying to prevent, and allow.

And yes, it is sad that the sport is run by lawyers, who always seem to never miss a chance to write long wordy answers when a simple explanation would be better for everyone, except for them.

 

[~Stingray~~]

We haven't seen the exact agreement and I doubt that we ever will. Plus, it may evolve anyway - perhaps like Seis suggests in response to the questions and answers from even the 'Part 1' of this. GD would surely want to try make darn sure that nobody runs afoul of anything, the stakes being so high.

Since I went to the trouble with the below and fwiw, here is how GD loosely characterized the agreement when he first announced it, speaking just off the cuff.

Photo from Meredith Block. Watch the full press conference here, thanks to iPhone streaming and Justin.TV.

Nice, thank you!

A second attempt at a transcription, much better this time on replay:

--

GD: For a period of a few months we have been discussing with Luna Rossa a joint collaboration, a sharing of all things but of design in the first instance, where they would take boat 1, our boat 1, which is just about to commence building, would build an absolutely identical boat from every nut, bolt and layer of carbon fiber. And then move on to potentially developing either a change to that boat or their own second boat as we move on to our own second boat.

But it expanded as it came together too, because they have also employed a small design team and those two design teams – our big design team which already has a boat designed – and their smaller one can start to feed.

This is such a small class that no one team is ever going to have all the answers so , with the people that they've also employed, we can actually start to share in what we may have missed.

So both boats will commence building immediately. Under the DOG the hulls must be skinned in the country of origin, and they will build their hulls in Persico, and then those hulls will be shipped to NZ for finishing off and assembling the wing and all the parts.

Just to put tat into perspective in terms of what it means to the NZ industry and how it benefits from this: One of these boats is 'around' 60,000 hours. In the moulds and hulls, is probably around 15,000 hours – something like that. So about 45,000 hours of that boat will be done in NZ including the wing, and then they will go on to a second wing after that. So the industry is a big winner in this.

They will come to NZ, they will build a base, they've taken land in NZ, and we will start training and effectively (something, temporarily). We have got to be respectful of the Protocol, which prohibits any collaboration of design after the end of next year, so prior to that we can share everything – and we will.

It's a very open, totally transparent, back to back contract in terms of builders and suppliers, and everything. They are the only team that we can work with. The country has still got a love affair with Luna Rossa after the 2000 and 2003 environments. They think very similar to us in terms of their ideals in terms of what the future of the Cup should be. Bertelli is a very straight guy who tells it like it is. We have absolute trust in them and they have absolute trust in us. So it's unique – as far as I know it's never been done in the history of the Cup. It is kind of the sport of secretness, and deceit has been completely blown apart by this quite frankly because this will be shared to create two teams that simply go faster. I hope that, I know that, it will certainly benefit us in lots of ways, and them. It's a great credit to the ETNZ design team and the boatbuilders of NZ, that Luna Rossa would think to – have taken the confidence to – enter the Cup this late and join with us to hopefully create a greater force for both of us.

That basically it. That's a short summary of a hell of a lot of talk over the last month and a half.

It was about as low key announcement as you can have, really. Think it was already half-announced..

Clean: "What are the key vision points that you share?"

GD: It's interesting that it doesn't appear, on the face of it from what we've seen in history, that billionaires like cost-cutting. In fact it seems like billionaires like pushing it up. But Patrizio Bertelli does share a vision of cost cutting the Cup in the future to create a sustainability where there is no sustainability at the moment. So that's one.We both share a nationalism – a desire on 'country on country.' I think one of the classics of our era was Australia vs Stars and Stripes. Country on country. So those are basically the two cornerstones we both believe in.

Clean: Have you spoke on mono vs multihull?

GD: I think it's.. I don't know what the future holds in terms of mono and multihull but one thing I do know: If you do win the Cup then by definition you've already got an advantage you won't want to give away that easily. Certainly my understanding from in the conversations is they are comfortable with the idea of multihulls.

Mauro (?): Luna Rossa historically have been one of the strongest Challengers. I would have understood if you would have cooperated with a weak team but you are actually helping one of your strongest opponents.

GD: I think there's a simple answer to that. If the All Blacks only ever played against Georgia they'd never be any good. To fear… We'd both go better and faster – you've got to play against better opposition to get good yourself. In the end the common goal is Oracle because they've got a leap on all of us in lots of ways. So we are all playing catchup and you have got to look at ways you can do that.

Boyd (?): On the hulls again..

GD: The boats are identical in every way. And their hulls will be built in Persico I believe. Boyd: (something)GD: Definitely not, we are doing a second boat. They are doing our boat 1, and we'll do a second boat, and they may do a second boat; they'll certainly alter boat 1 as we all learn along the way. But we are definitely building two boats.

Mauro: You share the same vision of the future of the Cup. But to change the future of the Cup you have to win. (GD: Absolutely) What do you think about now, the position of Oracle is still stronger than yours?

GD: They came in with a huge advantage, technically, having already done it with a multihull. So we're all playing catchup but I guess we'll know in 2013 if we actually caught up. (grin)

Mauro: Does your training program include other AC45's like Oracle is doing?

GD: No. We've got our 33 footers which meet the surrogate rule and they've been really, really good for us, really beneficial to us. We've learned a huge amount from those boats and the things we've done with them. We could never in a million years buy more 45 ft'ers.

Lady asks something about other challengers (hard to hear)

GD: That's a question I couldn't answer. Certainly financially someone could do it. Whether 'mentally' you'd try or not, I don't know. It's really late. Basically now you've got 3 Challengers and I don't know where the 4th one is. I thought there was only two but now there's three. Luna Rossa is like a bolter coming out of nowhere, really. So whether they could have done it.. they certainly couldn't have started up from scratch, absolutely impossible.

[question]

GD: Could they have bought the package? I have no idea what it even looks like. Certainly I know there's guys from that domain that are working on it but I don't know. That's a question for them.

Q: A couple days ago you described the (something, position?) of Oracle as 'rubbish.' More explanation about this?

GD: Well I don't know about 'rubbish.' But the Cup will never be defined by cost. I just think that the model is funded above its sustainability by a significant amount. And that's fine, because it's not our money, and that's fine. But it's not a sustainable model in a commercial environment and we are a commercial team. We live and die on our ability to raise money. The America's Cup to this point never has been, but it's still not commercially viable – as we've seen for .. England (? not sure what he said there)

Clean: Has there been any discussion of getting key personnel going with them, or is there (GD: Absolutely, we are sharing key personnel in terms of building their boat) – I mean for the sailing part of it? On the 45's for instance?

GD: Yeah, we'll train with them and their AC45, absolutely. They will take any information we have on AC45 development at this point. It is a completely open, 100% transparent deal. Because as they get going better that will help us too. It will only work if we are totally transparent. And that's why this is the only team we could ever do a deal like this with.

--

GD later described it in a radio interview with PJM, in a link also posted here somewhere.

 

[seis]

I think I have not "interpreted" the texts. I repost the TEXTS about the 3 points: (read almost the bold)

A - The 33.4 applies at all times. The interpretation of Luna Rossa-ETNZ is not acepted:

25. Luna Rossa Challenge 2013, in its submission of 17th December, asserts that '…33.4 is a general anti-avoidance clause that must be interpreted in the context of the rights granted by 33.1 and 33.2'. The Jury disagrees.

...

26. The Jury sees no justification to treat any of the four parts of Article 33 as being superior or inferior to any other part, or subject to any 'read-down'. Article 33.4 stands alone and applies at all times.

B - It's not prohibited to share the performance data. But, if two teams share performance data, they can't build another boat

39. Yes. There is no Article that prohibits the conducting of mere practice races between two Competitors' yachts but if there is an arrangement to share performance information then there is likely to be a breach of Article 33.4. Also, for both OR and CB the other Competitor's AC72 would meet the definition of 'Surrogate Yacht' (Article 1.1 (xx)). Using such Surrogate Yacht for training or for testing and development as described in Article 29.4 would constitute the acquisition of an AC72. While this does not breach any Article of the Protocol in itself, this would then prohibit either Competitor from acquiring, building or otherwise obtaining another AC72, as limited by Article 29.2(a).

...

43. Answer: Yes. There is no article that prohibits two Competitors from sharing performance data obtained prior to 1st January 2013, provided Article 33.4 is not breached by virtue of an agreement between the two Competitors. However, both OR and CB will be using each other's boats for their development. They will therefore be Surrogate Yachts for each other, as set out in Article 29.4 and then both of them will be prohibited from building another AC72 Yacht under Article 29.2.

...

45. Answer: Yes. However, both OR and CB will be using each other's boats for their development. They will therefore be Surrogate Yachts for each other, as set out in Article 29.4 and then building another yacht becomes prohibited under Article 29.2.

C. There are no exceptions for legal agreements to sharing performance data. The 33.4 is standing in any case.

28. ... two Competitors (or potential Competitors) may have a common designer, and may share or exchange AC72 Class design or performance information or equipment, provided there is no 'agreement, arrangement or other understanding', as described in Article 33.4, between the Competitors.

...

39. Yes. There is no Article that prohibits the conducting of mere practice races between two Competitors' yachts but if there is an arrangement to share performance information then there is likely to be a breach of Article 33.4. Also, for both OR and CB the other Competitor's AC72 would meet the definition of 'Surrogate Yacht' (Article 1.1 (xx))...

...

48. Would ORACLE Racing (OR) and Competitor B (CB) remain compliant with the Rules if OR enter into an arrangement to provide what is detailed in points 1, 2(a) or 2(, 3, 4 and 5 with CB? OR would build another AC72 Yacht while CB would not.

49. Answer: No. This would breach Article 33.4 and the arrangement would have the effect of ORACLE Racing acquiring a second AC72 Yacht. Should they then build another AC72 Yacht, it would be their third, which would breach Articles 29.2(a).

---------

The texts are clear. Not only one time, but another and another. Period.

Do you think there is any doubt? The intention of the authors is very clear.

 

[estarzinger]

Seis, We agree the jury decision is quite clear that if the teams 2-boat test or share performance data from their AC72's, that they have then engaged a 'surrogate yacht, and cannot build second boats.

 

 

But the point you seemed to be trying to make in your prior post above was that because you knew that TNZ and LR had an agreement to share AC72 performance data that they were already in breach of 33.4. The jury took great pains to state that the surrogate yacht and 33.4 issues were separate, while you have mixed them together in your post.

 

My reaction re 33.4 was: #1 that I at least have not seen the agreement and have not seen any specific comment that they had agreed to ac72 2-boat testing or sharing - and stinger's post only mentions joint ac45 training/testing. So, unless you have seen something that we have not, then perhaps they have a design sharing agreement and do not have an AC72 performance sharing agreement;

 

AND #2 that 33.4 is ambiguous and "may" not be breached by some sorts of agreements between bonafide teams. Jury 43 is the clearest statement on this (and one I note you did not include in your post): "There is no article that prohibits two Competitors from sharing performance data obtained prior to 1 January 2013 (comment: that's a pretty clear statement), provided Article 33.4 is not breached by virtue of an agreement between the two Competitors. (comment: this is still somewhat ambiguous- does it mean any sort of agreement at all as in even say to coordinate their crane time/usage, or only the sort of shell/sham agreement implied in 33.4)".

 

In any case, this point clearly and specifically allows the "independent sailing of identical AC72's with competitor chase/monitoring boat" approach I suggested in the other thread - which avoids both 33.4 and the surrogate problems. While using the AC45's and SL33's to train directly against each other.

A - The 33.4 applies at all times.

 

Yes, certainly we agree that is clear . . . . but perhaps we do not agree on what 33.4 means when it applies.

B - It's not prohibited to share the performance data. But, if two teams share performance data, they can't build another boat

 

This is a surrogate issues and not 33.4. We agree the jury is clear that training (or sharing performance data) with a competitor's AC72 makes it a surrogate yacht. BUT as an aside, training with AC45's (or SL33's) and sharing that data does not involve surrogate yachts and so does not prevent building 2nd AC72's. So, we agree that because TNZ and LR will want to each build second AC72's they cannot now 2-boat test or share performance data re their AC72's.

 

This jury interpretation defining 'using' (in the surrogate yacht protocol section) in a very broad fashion may have been a surprise to TNZ/LR. I know it is not what I expected. However, in Stinger's post above about the TNZ/LR agreement in fact does NOT talk about AC72 training/testing, and in fact it specifically talks about AC45's when they answered Clean's question about joint training.

C. There are no exceptions for legal agreements to sharing performance data. The 33.4 is standing in any case.

 

Like your point A . . . yes 33.4 stands, but what does it actually mean. Jury 42 plainly and clearly says that it is NOT prohibited to share performance data.

28. ... two Competitors (or potential Competitors) may have a common designer, and may share or exchange AC72 Class design or performance information or equipment, provided there is no 'agreement, arrangement or other understanding', as described in Article 33.4, between the Competitors.

Note the 'as described in 33.4' - which may suggest a shell/sham agreement is what is prohibited. It most likily cannot be 'any agreement', like say an agreement or understanding to coordinate crane time. So, it must be some specific sort of agreement, which they are not clear about, however there is an implication they want to prohibit a sham/shell agreement.

...

39. Yes. There is no Article that prohibits the conducting of mere practice races between two Competitors' yachts but if there is an arrangement to share performance information then there is likely to be a breach of Article 33.4. Also, for both OR and CB the other Competitor's AC72 would meet the definition of 'Surrogate Yacht' (Article 1.1 (xx))...

Note the word 'likely' (eg not certainly), rather than the more definitive 'will' or 'would' or 'shall'. This is the jury writing that most closely supports your point but with the use of the word likely rather than some more certain word it implies that the specific type of agreement or the intent of the agreement is important (eg whether it is a shell/sham agreement or not'). You may be right, but if you are they seem to go to pains to not be definitive about it.

...

48. Would ORACLE Racing (OR) and Competitor B (CB) remain compliant with the Rules if OR enter into an arrangement to provide what is detailed in points 1, 2(a) or 2(, 3, 4 and 5 with CB? OR would build another AC72 Yacht while CB would not.

49. Answer: No. This would breach Article 33.4 and the arrangement would have the effect of ORACLE Racing acquiring a second AC72 Yacht. Should they then build another AC72 Yacht, it would be their third, which would breach Articles 29.2(a).

The implication is that doing all of 1 thru 5 clearly signals to the jury that the partnership is a sham intend to circumvent the rules

So, the jury decision clearly approves the core of the TNZ/LR agreement, which is the shared design and 'bolt for bolt identical builds', allows the teams to directly train against each other in the AC45's and SL33's, and allows the teams to do 'independent testing with close observation by the partner'. The only thing it bans (assuming each team what to build 2nd boats) is performance sharing and 2-boat testing with their AC72's.In this context 33.4 does not really enter as the surrogate yacht prohibition comes into play first.

 

[Te Kooti]

Will ACRM charge Oracle 5000 euros for answering their questions about "partnerships?"

Because they have twice as many questions as TNZ, maybe they should pay 10,000 E?

 

[maxmini]

Will ACRM charge Oracle 5000 euros for answering their questions about "partnerships?"

Because they have twice as many questions as TNZ, maybe they should pay 10,000 E?

Larry could just draft a check to himself and cut out the middle man

 

[bcopper]

Will ACRM charge Oracle 5000 euros for answering their questions about "partnerships?"

Because they have twice as many questions as TNZ, maybe they should pay 10,000 E?

You act as though it's coming out of your personal bank account, relax.

GD has the cash - hell it's probably only the equivalent of a 3500 lb computer.

 

[seis]

Seis, We agree the jury decision is quite clear that if the teams 2-boat test or share performance data from their AC72's, that they have then engaged a 'surrogate yacht, and cannot build second boats.

 

 

But the point you seemed to be trying to make in your prior post above was that because you knew that TNZ and LR had an agreement to share AC72 performance data that they were already in breach of 33.4. The jury took great pains to state that the surrogate yacht and 33.4 issues were separate, while you have mixed them together in your post.

 

My reaction re 33.4 was: #1 that I at least have not seen the agreement and have not seen any specific comment that they had agreed to ac72 2-boat testing or sharing - and stinger's post only mentions joint ac45 training/testing. So, unless you have seen something that we have not, then perhaps they have a design sharing agreement and do not have an AC72 performance sharing agreement;

 

AND #2 that 33.4 is ambiguous and "may" not be breached by some sorts of agreements between bonafide teams. Jury 43 is the clearest statement on this (and one I note you did not include in your post): "There is no article that prohibits two Competitors from sharing performance data obtained prior to 1 January 2013 (comment: that's a pretty clear statement), provided Article 33.4 is not breached by virtue of an agreement between the two Competitors. (comment: this is still somewhat ambiguous- does it mean any sort of agreement at all as in even say to coordinate their crane time/usage, or only the sort of shell/sham agreement implied in 33.4)".

 

In any case, this point clearly and specifically allows the "independent sailing of identical AC72's with competitor chase/monitoring boat" approach I suggested in the other thread - which avoids both 33.4 and the surrogate problems. While using the AC45's and SL33's to train directly against each other.

A - The 33.4 applies at all times.

 

Yes, certainly we agree that is clear . . . . but perhaps we do not agree on what 33.4 means when it applies.

B - It's not prohibited to share the performance data. But, if two teams share performance data, they can't build another boat

 

This is a surrogate issues and not 33.4. We agree the jury is clear that training (or sharing performance data) with a competitor's AC72 makes it a surrogate yacht. BUT as an aside, training with AC45's (or SL33's) and sharing that data does not involve surrogate yachts and so does not prevent building 2nd AC72's. So, we agree that because TNZ and LR will want to each build second AC72's they cannot now 2-boat test or share performance data re their AC72's.

 

This jury interpretation defining 'using' (in the surrogate yacht protocol section) in a very broad fashion may have been a surprise to TNZ/LR. I know it is not what I expected. However, in Stinger's post above about the TNZ/LR agreement in fact does NOT talk about AC72 training/testing, and in fact it specifically talks about AC45's when they answered Clean's question about joint training.

C. There are no exceptions for legal agreements to sharing performance data. The 33.4 is standing in any case.

 

Like your point A . . . yes 33.4 stands, but what does it actually mean. Jury 42 plainly and clearly says that it is NOT prohibited to share performance data.

28. ... two Competitors (or potential Competitors) may have a common designer, and may share or exchange AC72 Class design or performance information or equipment, provided there is no 'agreement, arrangement or other understanding', as described in Article 33.4, between the Competitors.

Note the 'as described in 33.4' - which may suggest a shell/sham agreement is what is prohibited. It most likily cannot be 'any agreement', like say an agreement or understanding to coordinate crane time. So, it must be some specific sort of agreement, which they are not clear about, however there is an implication they want to prohibit a sham/shell agreement.

...

39. Yes. There is no Article that prohibits the conducting of mere practice races between two Competitors' yachts but if there is an arrangement to share performance information then there is likely to be a breach of Article 33.4. Also, for both OR and CB the other Competitor's AC72 would meet the definition of 'Surrogate Yacht' (Article 1.1 (xx))...

Note the word 'likely' (eg not certainly), rather than the more definitive 'will' or 'would' or 'shall'. This is the jury writing that most closely supports your point but with the use of the word likely rather than some more certain word it implies that the specific type of agreement or the intent of the agreement is important (eg whether it is a shell/sham agreement or not'). You may be right, but if you are they seem to go to pains to not be definitive about it.

...

48. Would ORACLE Racing (OR) and Competitor B (CB) remain compliant with the Rules if OR enter into an arrangement to provide what is detailed in points 1, 2(a) or 2(, 3, 4 and 5 with CB? OR would build another AC72 Yacht while CB would not.

49. Answer: No. This would breach Article 33.4 and the arrangement would have the effect of ORACLE Racing acquiring a second AC72 Yacht. Should they then build another AC72 Yacht, it would be their third, which would breach Articles 29.2(a).

The implication is that doing all of 1 thru 5 clearly signals to the jury that the partnership is a sham intend to circumvent the rules

So, the jury decision clearly approves the core of the TNZ/LR agreement, which is the shared design and 'bolt for bolt identical builds', allows the teams to directly train against each other in the AC45's and SL33's, and allows the teams to do 'independent testing with close observation by the partner'. The only thing it bans (assuming each team what to build 2nd boats) is performance sharing and 2-boat testing with their AC72's.In this context 33.4 does not really enter as the surrogate yacht prohibition comes into play first.

I think we agree on the meaning of the answers.

The difference is in the application of the rules to the unknown LR-ETNZ agreement ("contract", in Dalton's words).

I have little interest in defending an opinion on what may be the contract between them.

It is true that the Dalton's words in the interview transcribed by Stingray have led me to believe that the agreement includes the sharing of AC72's performance data. These are the words of Dalton:

"We have got to be respectful of the Protocol, which prohibits any collaboration of design after the end of next year, so prior to that we can share everything – and we will. It's a very open, totally transparent, back to back contract in terms of builders and suppliers, and everything."

("Everything" is everything, and the most important of "everything" are the AC72's performance data) But that's only my -perhaps wrong- interpretation)

And the interpretation of Luna Rossa on 33.4 has led me to think that.

And Gladwell's article on the benefits of this agreement between ETNZ and LR has reinforced that impression.

In my first post I mentioned your idea to "solve" the problem: no performance data sharing, but "allow" another look from the outside. I think it's a good way to avoid "data sharing" and the consequent limitation on the construction of another boat.

We don't know the terms of the ETNZ-LR.

The performance data sharing, that's the question. It's all about that.

Can we agree on this?

- If that agreement includes sharing performance data of AC72, goes against the Protocol. And it prevents the construction of another boat. -

We have no data to know what the terms of the agreement.

Only these words of Dalton: "... prior to that (2013) we can share everything – and we will. It's a very open, totally transparent, back to back contract in terms of builders and suppliers, and everything."

And the interpretation of Luna Rossa, who understood the art. 33.1 and 33.2 were guaranteed the right to share everything, and limited the meaning of the agreement's prohibition under Article 33.4.

But, if the terms of the agreements are "we can observe the other's (identical) boat from outside", I think it's all right.

No problem against the Protocole.

And both teams can build another boat.

(But I think it would be clever to look after a clear answer for this question.)

We will see...

 

[eric e]

yawn

we will sleep

 

[Xlot]

Heck of a way to start the new year, but

QUESTION 8

48. Would ORACLE Racing (OR) and Competitor B (CB) remain compliant with the Rules if OR enter into an arrangement to provide what is detailed in points 1, 2(a) or 2( B) , 3, 4 and 5 with CB? OR would build another AC72 Yacht while CB would not.

49. Answer: No. This would breach Article 33.4 and the arrangement would have the effect of ORACLE Racing acquiring a second AC72 Yacht. Should they then build another AC72 Yacht, it would be their third, which would breach Articles 29.2(a).

What is the scenario here?

Also, may OR build a boat, sail it for 30 days and then sell it to CB complete with plans and with/without performance data?

 

[estarzinger]

Xlot are you stirring up trouble already Do you really think Milan area government has agreed to pay 50M euros to fund a Spanish team, if so how do you feel about that?

48. Would ORACLE Racing (OR) and Competitor B (CB) remain compliant with the Rules if OR enter into an arrangement to provide what is detailed in points 1, 2(a) or 2( B) , 3, 4 and 5 with CB? OR would build another AC72 Yacht while CB would not.

49. Answer: No. This would breach Article 33.4 and the arrangement would have the effect of ORACLE Racing acquiring a second AC72 Yacht. Should they then build another AC72 Yacht, it would be their third, which would breach Articles 29.2(a).

What is the scenario here?

Given that the hypothetical is that team B only builds one boat, then we know immediately that team B is not a serious competitor, and is probably a sham/shell team set up (or hijacked) specifically to allow OR to circumvent the equipment/sailing restrictions. OR is probably the only team with the money and time to set this sort of thing up. When the protocol was written, and all the various equipment and sail restrictions being put in, it was clear that a clause was needed to prevent teams from setting up sham/shell organizations/teams where they could 'hide' extra boats and sailing time over and above the limits. This was clause 33.4. The Jury seems to be saying that they will judge a partnership by its actions (as its intent is unknown/unknowable) and will judge a partnership to be a sham/shell designed to circumvent the rules if they do all of (1) a complete design package and (2) a joint and identical build, and (3) a 2-boat test program, and (4) moving components between the boats, and (5) complete sharing of performance data, while if they only do (1) and (2) they will not be judged to be a sham/shell. And they are a bit unclear/ambiguous how it will be judged if they do something in between.

 

Personally I feel the jury's interpretation of both the surrogate yacht (defining a competitor's yacht as a surrogate) and 33.4 (defining clearly non-sham teams to be in breach) to be broader than a plain reading of the language suggests, but they were faced with a situation (the tnz/lr partnership) that apparently the original authors did not envision (although I am not sure why not as it was an obvious opening/opportunity immediately when the protocol was published) and had to try to find a way to close the size of the loophole. This whole loophole was created by the fact that OR wanted to be able to sell a shared design package and wrote the protocol to allow but which also opened the door for close collaboration between teams.

Also, may OR build a boat, sail it for 30 days and then sell it to CB complete with plans and with/without performance data?

Unless it is sold to a defender candidate, the hulls will not be CIC. But other than that, yes, as OR is not getting any data from a '3rd' boat and CB is only getting data on 'their' boat its all (apparently) protocol ok. But then OR would only have one boat, their 2nd one, and they could not build a 3rd, and I suspect they really want to have two boats.

 

[Xlot]

^^

"Stirring up trouble", innocent moi?

On GCR, dogwatch wrote an adequate post: the one thing I'd add is Lombardy's flamboyant governor (his hobby is designing shirts à la Dolce & Gabbana) wasn't there.

 

[Wolkenzug]

This may sound like a stupid question but am I the only one who thinks that the questions raised by OR may have nothing to do of what OR might be planning for the future but more as a warning signal towards ETNZ and Luna Rossa of what they should not try?

Like concerning the questions whether it would be legal for Team A to send sailors on Team B´s boat.

Just read some of OR´s questions and the resulting answers in that way. You might easily read a "Don´t even try this once" warning out of it.

 

[~Stingray~~]

This may sound like a stupid question but am I the only one who thinks that the questions raised by OR may have nothing to do of what OR might be planning for the future but more as a warning signal towards ETNZ and Luna Rossa of what they should not try?

Like concerning the questions whether it would be legal for Team A to send sailors on Team B´s boat.

Just read some of OR´s questions and the resulting answers in that way. You might easily read a "Don´t even try this once" warning out of it.

RG at Sail World put it this way

It is a matter of conjecture Whether this game of cat and mouse was genuinely an attempt to clarify the rules that both the Challenger and Defender signed off, or whether it is an attempt to thwart the efforts of two teams who between themselves have reached several America's Cup and Louis Vuitton Cup Finals, and were themselves Challenger and Defender in the 2000 America's Cup.

 

.. so (not sure how the teams' records are supposed to have anything to do with the AC34 rule interpretations, but..) there is of course 'conjecture' from on that front.

There have been suggestions that Oracle would be looking to respond with a similar agreement; and then just last week VS and FV tweeted the rumor of a possible GBR entry being announced on Jan 9, and VS also tweeted the new entry might do a collaboration with Oracle. So there could be something new in the works but even if not then the answers to OR's questions may have implications to ETNZ/LR - whether intended or not. The follow-on Artemis questions (if they do come, after seeing these answers) will apparently address the ETNZ/LR agreement more specifically.

RG probably had this part wrong if he implies they would share performance data; or else maybe that part would change as a result of the answers?

The wrinkle in the Protocol uncovered by Emirates Team NZ and Luna Rossa was that while the teams would have been allowed to build two new boats, by working together in a particular way they could get more out of that provision of the Protocol than was contemplated.

 

By building two boats to an identical design and working against each other, the two teams would obtain vital design and performance information which could then be laid off to good effect with the development of their second boats, which would have to be developed independently.

 

[~Stingray~~]

New by KL

--

ETNZ a One-Boat AC Team (Not?)

I see the most recent decision of the America's Cup Jury being portrayed in New Zealand as a win, but to my monkeymind it looks like a setback for the Emirates Team New Zealand/Luna Rossa partnership, with first-generation AC72 catamarans set to launch just six months from now. Am I missing something?

While many of us spent the last few weeks fa-la-la-ing away, folks involved in whatever capacity with America's Cup 34 were cranking right along. The America's Cup Jury on December 28 released a decision on Jury Case AC06, which is an indirect ruling on the partnership between challengers Emirates Team New Zealand and Luna Rossa. The two teams in November announced a cooperation agreement by which the Italian team gains "full access to all ETNZ design and performance data" until December 31, 2012. For its part, ETNZ gets money. When you're older, I'll explain.

contd

 

[pjfranks]

New by KL

--

ETNZ a One-Boat AC Team (Not?)

I see the most recent decision of the America's Cup Jury being portrayed in New Zealand as a win, but to my monkeymind it looks like a setback for the Emirates Team New Zealand/Luna Rossa partnership, with first-generation AC72 catamarans set to launch just six months from now. Am I missing something?

While many of us spent the last few weeks fa-la-la-ing away, folks involved in whatever capacity with America's Cup 34 were cranking right along. The America's Cup Jury on December 28 released a decision on Jury Case AC06, which is an indirect ruling on the partnership between challengers Emirates Team New Zealand and Luna Rossa. The two teams in November announced a cooperation agreement by which the Italian team gains "full access to all ETNZ design and performance data" until December 31, 2012. For its part, ETNZ gets money. When you're older, I'll explain.

contd

I don't see the need for a 2 boat challenge if an ETNZ/LR style co-operation exists. If the designers can predict potential design improvements to the first generation boats and incorporate the provision for such changes with the production engineering then there should be no need for a new second generation boat as the first generation boat will be able to accept all perceived modifications. If the ETNZ and LR boats are set up in different configurations for testing then the optimum configuration for any given conditions can be established without need for new build second generation boats.