THE AMERICA’S CUP ARBITRATION PANEL

APPLICATION AND SUBMISSIONS ON BEHALF OF
YACHT CLUB PUNTA ALA/PRADA CHALLENGE  2003 (hereinafter Prada or YCPA/Prada).

This application arises out of termination by Prada of its engagement of a designer.

Factual background:

The designer concerned satisfied the conditions of nationality for more than one country.  He elected and declared his Italian nationality, and his name was properly submitted to RNZYS.  He has, since the inception of the YCPA/Prada challenge for the 31^st America’s Cup performed design work.

On 3 October 2002, his engagement was terminated with immediate effect by Prada, and he is not required to perform any continuing design function, whether within the scope of the 1996 Resolutions definition or otherwise.

Question for interpretation:

In circumstances such as this, where a multiple nationality designer’s engagement has been terminated, is the challenger with whom he has ceased to be involved under any continuing obligation to ensure that he maintains his nationality eligibility for the duration of that challenger’s participation in competition for the 31^st America’s Cup (such as, for example, maintaining a principal place of residence in Italy where up to this point in time that has been the basis of his nationality eligibility)?

Submission:

Prada submits that the short answer to the question is in the negative.

Primarily, once a challenger’s (or the Defender’s) multiple nationality designer ceases to be engaged as such, neither the challenger nor the designer have any ongoing Protocol obligations in respect of him, beyond the date of termination.

Another argument in support of this submission is that the Protocol is  not concerned with the terms, duration or other detail of an individual designer’s engagement nor with its termination.  The Protocol does not and should not impinge upon the terms of a challenger’s separate contract with its personnel, including usual rights to terminate at any time prior to or during the event.

Another argument is that the Protocol tacitly acknowledges that a designer may cease to be engaged by a participant during the competition, otherwise there would be no need for the express restriction on teams to contract with or engage designers who have engaged for another  campaign.

Additionally, no recognised Deed of Gift or Protocol purpose would be served by a requirement to perpetuate nationality eligibility of a former designer: it is legitimate that the Protocol should preclude the former designer moving into a second challenge, but unnecessary to the concept of separate design efforts that a designer be prevented from moving (or being moved) out of a team on an unqualified basis.

Finally, an affirmative answer to the question would have unintended and undesirable discriminatory and arbitrary consequences.  As the Panel decided in ACAP 02/04, a multiple nationality member of the RORC/GBR Challenge sailing crew was absolved from any obligation to maintain an actual principle residence in the United Kingdom, for so long as he satisfied Condition 4.4 of the Louis Vuitton Cup Notice of Race and Conditions by sailing with his team in New Zealand.  It would be contrary and unreasonable, and serve no proper purpose, if the obligations of a former multiple nationality designer (who, by virtue of disengagement is no longer able to satisfy Condition 4.4) were more burdensome, and required him to maintain a qualifying principal residence in Italy: if a continuing team member need have no more than deemed residence, why should a former member have to maintain actual residence?

Directions in the alternative:

If notwithstanding these submissions, the Panel is of the view that the question posed by Prada should be answered in the affirmative, Prada seeks directions as to the manner in which Article 11.2 must be complied with by a multiple nationality designer whose engagement has been terminated, so as to ensure that there is no violation of the Protocol between the date of termination and the completion of the relevant challenger’s (or defender’s) participation in the competition.

At the present time the former designer still maintain the right of residing in the elected country, as he has a valid permit of stay and he can return there at any time he wishes or needs to. He is still registered as resident  and he still needs to pay tax in that country as resident. In case of an affirmative answer to the question posed, are these factual circumstances satisfy the requirement of Article 11.2?

DATED at Auckland  this  10^th   day of  September  2002

Prada Challenge 2003

on behalf of Yacht Club Punta Ala

Alessandra Pandarese

John Gresson

Address for service

Prada Challenge 2003 on behalf of Yacht Club Punta Ala’s address for service is:

For the attention of
Alessandra Pandarese
c/o Norton White
84 Symonds Street
Auckland – NZ
e-mail:alessandra.pandarese@studio-giordano.it
and cc lesquier@prada-americascup.com
john.gresson@nortonwhite.com;
mgalassi@prada-americascup.com

_____________________________________________

Permanent address of Alessandra Pandarese is
Studio Legale Giordano Pandarese
Via Freguglia 4
20122 – MILANO –
Tel + 39 02 5512715
Fax + 39 02 5512721