America's Cup decision 'a pleasant surprise'
'Hamish Ross, General Counsel for Alinghi'
Ivo Rovira /Alinghi. Copyright
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Soon after the announcement of the decision of the Appellate Division of the New York Supreme Court, which swung the America's Cup pendulum back the way of Alinghi, Sail-World spoke to Alinghi General Counsel, Hamish Ross about the implications of the decision and likely outcomes.
The first of these covers the immediate future and the aftermath of the Appeal, which it would be fair to say came as a real surprise to many in the America's Cup community.
'It means there will be a further period of uncertainty during the right of appeal period, which is 30 days from the time of that the order is signed and served', explains Ross. 'That could take us until the first week of September until we know whether or not there is going to be an appeal.
'That is unless, of course Oracle put everyone out of their misery, and advise they are going to appeal,' he adds.
'Like everyone else we hope they don't appeal, and then we can get on with organising an exciting event like the 32nd Americas Cup. Meanwhile there is not much we can do prospectively during that period.'
Ross admits the decision was not what he had expected from the Appellate Court.
'To be honest, the judgment came as a pleasant surprise to me.'
'The best I personally dared hope for was one or two judges to support our view. But we are delighted that we have a majority supporting the view we have taken over the past year. 
Had the decision gone against you, would you have Appealed, we asked?
'Probably not,' Ross replies. 'I think it highly unlikely we would have appealed and we would have just moved to get the event back on the water as quickly as possible.'
Ross agrees with the view put earlier by Sail-World that the Appellate Court had effectively pushed System Reset on the America's Cup and had pretty well wiped all that had occurred in the last 12 months.
'Effectively we are taken back to early July 2007 in terms of the America's Cup', says Ross. 'We have CNEV as the Challenger of Record and the Protocol that was agreed with them. The Protocol was, of course, amended in consultation with the other Challengers at the time. So all that remains in place.'
'But we can't really have any meaningful discussions until we know whether BMW Oracle will appeal'
'You can have discussions as to what might or might not happen. But in terms of practicalities there is not much that can be done in terms of looking at potential venues and talking to potential sponsors and challengers until there is greater certainty. 
Sail World suggested there is no doubt that the Appellate Court decision has not really resolved the impasse, and that the only way out of the situation is by negotiation between all the parties, and then proceeding on a mutually agreed basis.
Ross responds by saying 'We have only had the decision a few hours and there has been no discussion about what might happen but anything that gets the event closer to being back on the water needs to be viewed favourably.'
Taking an optimistic view that BMW Oracle Racing doesn't Appeal, and that the Challengers and Defender can agree on a way to move forward, when, we asked Ross, could we expect to see racing underway in the America's cup?
'Under the Protocol, which is still in existence, there is a provision that the first races in the new class would be held 18 months out from the publication of the class rule. That would indicate January 2010 as the earliest possible date from today for an Event in a new boat.
'I think the 2009 is unrealistic to hold an America's Cup Event. And 2010 might a stretch things as well,' Ross adds. 
'Obviously with the world economic situation being the way it is now, we are in a lot different situation from 2003, when we were beginning to organise the last America's Cup', he reflects.
'One thing the America's Cup does have is a very solid history of TV viewership and interest around the world', says Ross, 'which goes a long way towards selling sponsorship. Before you can sell sponsorship you have to lay the groundwork in terms of telling everyone when the event is going to be, and what it is going to look like.'
Now that Alinghi have both their hands firmly back on the America's Cup, will they support or initiate moves to amend the Deed of Gift, to avoid a situation where disputes on the America's Cup are dragged through a civil court process for decision and resolution?
'I personally would very much support adding an arbitration clause,' is the Ross response. 'I would like to see a process where the past and present Trustees would have the power to appoint an arbitrator each with power to make a full and final decision on disputes within weeks rather than the years the courts can take. 
'The biggest problem at present is that we are locked into a legal system which has two layers of appeal. If there is any good that comes out of all this, it would to prevent a future dispute having to go through the same delays again, before there is final certainty for everyone.'
by Richard Gladwell, Sail-World
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Turners Beach, TAS
