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America’s Cup: Avoid Saudi Arabia or else

Published on November 2nd, 2021

Dr. Hamish Ross, a legal advisor for America’s Cup teams who completed a PhD at the University of Auckland on the legal issues surrounding the America’s Cup, has been questioning the actions of the principal characters in the 37th America’ Cup.

Ross has claimed that Team New Zealand’s chosen Challenger of Record, the Royal Yacht Squadron (RYS), was invalid as the challenge was made in the name of a limited liability company owned by RYS, rather than by the yacht club entity itself, and arguably in breach of the Cup’s governing Deed of Gift.

He also considers the pursuit of Team New Zealand to select an offshore venue to host the competition is extending beyond what is permitted, as one of the options revealed – Jeddah in Saudi Arabia – would be in conflict with a 2009 New York Supreme Court decision regarding venue selections where human rights (as in NY and the US) are not respected.

With the next major date as November 17 for the planned release of the protocol which is to outline the rules and regulations for the boats and event, Ross offers a warning for any arrows that point toward the Middle East. He explains:

There is a now famous, NZ legal precedent firmly opening the door for the NZ courts to step into private sporting matters. In 1985, the New Zealand Rugby Football Union (NZRFU) accepted an invitation to send a representative team (the famous All Blacks rugby football team) to tour South Africa during the apartheid era.

Several New Zealand lawyers filed proceedings against the NZRFU and were ultimately successful in securing an injunction preventing the NZRFU from sending the All Blacks to South Africa. The main ground was that the decision to send a team was contrary to the objects of the NZRFU.

Cooke J. (later Lord Cooke): “They claimed that the decision failed to comply with the object of promoting, fostering and developing amateur rugby union football throughout New Zealand, and that for various specified reasons it gives the game a tarnished and sullied image and will reflect adversely on the game. These contentions we will refer to as the against-the-objects ground. … They claimed therefore that the decision was invalid and unlawful, and sought a declaration and injunction.” (Finnigan v New Zealand Rugby Football Union Inc [1985] 2 NZLR 159)

Both the Deed of Gift and the RNZYS have similar laudable sporting objects, against which a decision to select a particular venue for the America’s Cup competition would be similarly measured by a New Zealand court.

In the case of the Deed of Gift, to promote “friendly competition between foreign countries” and in the case of the RNZYS, “the encouragement of Corinthian yachting generally and such other purposes connected with aquatics and the welfare and development of the Squadron as members shall from time to time deem necessary or expedient”

It is not much of a leap for the New Zealand courts to make from apartheid South Africa of 1985 to Saudi Arabia or similar regimes of today where human rights are accorded little value, if the courts are called upon to review an America’s Cup venue selection.

No one wants to see legal proceedings, but who really wants to send their men and women to such places for a few pieces of silver?

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