America's Cup – WIPO Provides Online Dispute Resolution Facility
The web-based facility enables jury members, parties and legal representatives to access case-related submissions from anywhere in the world and at any time. (Photo ©Th.Martinez/Alinghi)
The “Holy Grail” of the yachting world culminates with the final regattas in Valencia, Spain, from April 16 to July 7. It is the 32nd America’s Cup, the renowned international sailing competition, which originated in 1851 and is considered to be the oldest active trophy in international sport, predating the Modern Olympics by 45 years. The 32nd America’s Cup began in 2004 when the Société Nautique de Genève – the yacht club that won the 31st America’s Cup and therefore currently holds the trophy – accepted the challenge to a new competition. Twelve boats from ten countries, incorporating the latest designs and technology, are competing in the 32nd America’s Cup.
So what does this have to do with WIPO?
Under the America’s Cup Jury (ACJ) Rules of Procedure, the ACJ is responsible for resolving disputes that may develop involving competitors and provides guidance in rule interpretation. The ACJ is comprised of five members from five countries and assisted by a Jury Secretary. Following a request from the America’s Cup Management, WIPO has created in-house a customized web-based facility for use in the 32nd America’s Cup to facilitate efficient dispute resolution under the ACJ Rules of Procedure. This application is modeled on the WIPO Electronic Case Facility (ECAF), a user-friendly and practical web-based tool that the WIPO Arbitration and Mediation Center makes available to parties at their request.
Adapting the ECAF model
The regular WIPO ECAF is available for cases arising under the WIPO Mediation, Arbitration, Expedited Arbitration and Expert Determination Rules. With the WIPO ECAF, parties, neutrals, and the Center may securely file, store, search and retrieve case-related submissions in an electronic docket from anywhere in the world and at any time. When a submission is made, all parties receive an e-mail alert and may view the docket. The WIPO ECAF also aids case management by providing – in addition to the online docket – case overview, time tracking and finance information.
Similarly, ECAF’s customized ACJ interface allows an at-a-glance overview of all cases filed, and for each case, a comprehensive listing of all submissions by parties, as well as Jury notices and decisions. When a submission is made through the ACJ ECAF, all participants receive an e-mail notification. Information stored on the ACJ ECAF may be accessed by all approved participants, namely members of the Jury and parties over whom the Jury has jurisdiction under the Protocol governing the 32nd America’s Cup (Protocol), including the competitors, the Race Committee, the Measurement Committee, America’s Cup Management, the Challenger Commission, and all officials. A message board function on the ACJ ECAF is an additional tool that enables informal communication among participants outside the case record.
The ACJ ECAF contributes to the efficient resolution of ACJ disputes where Jury members, parties and legal representatives are based in different locations, where submissions in every case must be accessed by a number of participants, and where time is of the essence. Since its launch in March 2006, over 20 disputes have been initiated through the submission of an application on the ACJ ECAF, nearly all of which have been resolved.
The ACJ ECAF uses a secure platform and all information stored is firewall-protected and encrypted using Secure Socket Layer technology. This enhances the confidentiality of the procedure. However, Jury decisions are publicly available, unless the Jury decides otherwise.
The Jury has been called upon to resolve issues as diverse as the place of yacht construction for purposes of hull inspection by competitors, and the interpretation of various racing rules.
The Jury was called upon to determine whether the Red Bull advertisement displayed on the hull of this team's boat was permissible. ( ©ACM 2007/Photo: Jorge Andreu)
One dispute dealt with through the ACJ ECAF involved photographs that were taken of a competitor’s yacht while the team was testing new equipment outside the race area, and which were subsequently viewed by a rival team. Immediately after the application was filed, the Jury issued an interim order prohibiting publication or distribution of the photographs while proceedings were under way. The Jury accepted submissions, with one team stating that it had come into possession and viewed the photographs but had then destroyed them, and that no competitive advantage had been gained as a result of the viewing. The team requesting relief claimed that the photographs contained design information that would be beneficial to any competitor. The Jury ruled that the team which had viewed the photographs had violated certain articles of the Protocol. By way of sanction, the viewing team would have the number of sails it could use during the Challenger Selection Series reduced from 45 to 43 sails. The team was also required to pay the costs of the proceeding.
In another case, more directly related to intellectual property, the Jury was called on to determine whether a team’s request to display a Red Bull advertisement on its hull was permissible. The Protocol allows advertisements of a limited size, and color schemes of any color or combination of colors. The Jury construed the proposed advertisement as consisting of the Red Bull name and the depiction of a bull, and not the combination of colors outside that area. Accordingly, the Jury approved the team’s application for branding pursuant to relevant articles of the Protocol.
The 18th person
More recently, the ACJ ECAF has been further adapted to assist with the so-called 18th Person Approval process. The 18th person is an individual the team wishes to take on board with them for a day’s racing, in addition to the 17-person racing crew. Such persons may be connected to the sponsoring companies or have some public status. To prevent them from taking an individual on board with skills that would give a competitive advantage to the team, teams must apply to the Jury to take this person on their yacht. Teams now use the ACJ ECAF to make their request and upload a sailing resumé, which details any technical and tactical skills of the proposed 18th person. All 18th person requests are then automatically notified via e-mail to everyone with access to the ACJ ECAF.
The role of WIPO’s Arbitration and Mediation Center has been to develop the ACJ ECAF and provide technical support, implementing updates as necessary. This experience has driven further improvements in the regular WIPO ECAF system, so helping to confirm WIPO’s pre-eminent position in the area of online dispute resolution. As the exciting final days of the 32nd America’s Cup approach, the Center continues to receive positive feedback from the Jury.
Dina Leytes, WIPO Arbitration and Mediation Center
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