News Around the World �
NEW ZEALAND Mess with me at your peril
Those who value preserving the history and traditions of the America’s Cup might have mounting reasons to regret the day that Luna Rossa’s Patrizio Bertelli relinquished the rights of the Challenger of Record and opted for decisions by majority vote. No doubt the mercurial Italian campaigner made the decision with the best of intentions and in the belief that teams would act as guardians of all that has made the event special. Sadly, however, it has resulted in a relentless march away from several of the very characteristics that have given the Cup its unique prestige and ensured its extraordinary longevity.
The latest ‘announcement’ of a new framework agreement for the future continues the trend and goes to the very heart of the 166-year-old event. Apart from the trophy itself, the big prize for the winner of the America’s Cup has always been the victor’s right to frame the Cup contest on his own terms within the parameters of the Deed of Gift.
In theory, the Deed is challenger driven, with the Challenger proposing the parameters of the boat (up to 90ft waterline, and so on) and the timeline, with the Defender setting the venue, tradition- ally in home waters. In practice, however, the modern Cup has seen the Defender accept a hip-pocket challenge from a pre-arranged Challenger of Record with the broad framework of terms already agreed. Thus, in effect, the Defender sets the terms by pre-selecting a challenger, who agrees with those terms.
After the San Francisco regatta of 2013 the Golden Gate Yacht Club, representing the Oracle team, accepted a challenge from Australia, spearheaded by Bob Oatley and the Hamilton Island Yacht Club. When the Oatley campaign folded after failing to achieve external backing, Luna Rossa became the default Challenger of Record.
This was a potentially dangerous time for the Defender, as Mr Bertelli is known to be a tough character, a strict disciple of the Cup’s traditions and unlikely to yield ground, or principle. Also, Luna
12 SEAHORSE
Rossa had a close relationship with Emirates Team New Zealand, which could pose an alliance not always inclined simply to fall in line with the Defender’s dictate.
Everything changed, however, when Luna Rossa ceded its mutual consent rights – effectively a veto on crucial aspects of the contest – to majority vote. Now the Defender could form its own alliances with compliant challengers and outflank two potentially threatening competitors.
Mr Bertelli, of course, became the first victim of his own abdication, when Oracle Team USA took the unprecedented step of reversing the year-old Protocol to substitute a new 50ft class for an already published AC62 rule. Under the Protocol such a change would have required unanimous agreement from all the signed-up teams. Had Luna Rossa retained its Challenger of Record rights it could have blocked any change to that provision. With majority vote the first step was to amend the protocol and drop (sic) the unanimity requirement. Now, with only ETNZ and Luna Rossa opposing, the way was clear and the vote for a new smaller design was adopted. As a matter of principle, Mr Bertelli withdrew from the contest, describing the events as ‘an abuse of process’. By recently ushering in the (their) so-called vision for the future, Oracle, supported by the British, French, Swedish and Japanese syndicates, appear to have scored a major coup. It has not only framed the vision for the current cycle, as was its right by successfully defending in 2013, but, win or lose, it has secured agreement to lock in place its vision for the next two cycles through to 2021. Unless, of course, ETNZ wins and creates a vision of its own… Emirates Team New Zealand has not supported the change, releasing a brief statement that it believes ‘the future America’s Cup format should be decided by the Defender and Challenger of Record as it has historically been’.
Commentators have questioned the robustness of the framework agreement, arguing that it would be unlikely to withstand a legal challenge on the basis that the provisions of the Deed of Gift, as the ruling document, would take precedence. However, against the
JEAN-MARIE LIOT/DPPI
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