Forum: The Racing Rules of Sailing
Arbitration and witnesses
P
Stavros KourisCertifications:
- International Judge
- National Umpire
1
Reading Q&A 2019.018 J010 about arbitration I read the following:
"Situation
The sailing instructions specify an arbitration procedure for breaches of rules of part 2 and rule 31
which is voluntary for the parties, but when the procedure is agreed, no witnesses are permitted,
and the decision of the arbitrator is stated to be final.
Question 1
Is this valid?
Answer
The basis of arbitration under Appendix T is that that the parties are given an opinion which they
may either accept, or reject and proceed to a hearing.
The procedure described is in effect a hearing, therefore Section B of Part 5, Hearings and
Decisions, applies. The sailing instructions may change rules 63.6 and 66, so that witnesses are not
allowed at a hearing, and a reopening of a hearing cannot be requested. However, the right to
appeal may be denied only under rule 70.5."
From that I understand that the procedure described is a hearing and therefore if the SI do not change rules 63.6 and 66, then witnesses are allowed in an arbitration.
But this is contradictory with what Appendix T states in T2 which says that witnesses will not be allowed.
And since the Appendices take precedence over any conflicting rule what is the concept of the Q&A?
The sailing instructions specify an arbitration procedure for breaches of rules of part 2 and rule 31
which is voluntary for the parties, but when the procedure is agreed, no witnesses are permitted,
and the decision of the arbitrator is stated to be final.
Question 1
Is this valid?
Answer
The basis of arbitration under Appendix T is that that the parties are given an opinion which they
may either accept, or reject and proceed to a hearing.
The procedure described is in effect a hearing, therefore Section B of Part 5, Hearings and
Decisions, applies. The sailing instructions may change rules 63.6 and 66, so that witnesses are not
allowed at a hearing, and a reopening of a hearing cannot be requested. However, the right to
appeal may be denied only under rule 70.5."
From that I understand that the procedure described is a hearing and therefore if the SI do not change rules 63.6 and 66, then witnesses are allowed in an arbitration.
But this is contradictory with what Appendix T states in T2 which says that witnesses will not be allowed.
And since the Appendices take precedence over any conflicting rule what is the concept of the Q&A?
Comments
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The language in the old US Sailing Arbitration rules, the RYA rules and other references has been carefully honed to make it clear that an arbitration is not a protest hearing.
On the other hand, while an arbitration may not be appealed or reopened, there is ample scope for a party to get to a full protest hearing, with rights of appeal.
If the protestee does not agree with the arbitrator's opinion, she may simply decline to take a post race penalty, in which case, it may be expected that the protesting boat will not withdraw the protest and a full protest hearing will follow.
If, following the opinion of an arbitrator, one boat takes a post race penalty, the protesting boat still has the option of whether or not to withdraw the protest. If the protesting boat thinks that a post race penalty is inadequate, for example because of an alleged breach of rule 14 or rule 2, she can decline to withdraw the protest, and, in accordance with rule 63.1 the protest committee is required to hear the protest.
So when we start talking about witnesses, there is no distinction between a hearing and a meeting. But the idea behind what we call arbitration is to make it fast and summary. Allowing witnesses is possible, but the process we've designed has excluded them with the thought that the due process rights protected by allowing witnesses is out-weighed by the intent to run the hearing quickly with a minimal risk to the competitors.
I agree that arbitration is misnamed and probably should be called mediation.
The reason I point this out is that the fundamental principal here is more important than what the rules require. It is about how much due process (procedural justice) is required where a competitor stands to be penalized. Starting with RRS 63, the rules define it. It requires a meeting where the parties can be present, present evidence, cross-examine witnesses and argue their case.
In Appendix T, the procedural rules for Arbitration are defined but state that no penalty may be imposed. It requires that both parties be present and that they each have an opportunity to argue their case. However, it excludes witnesses, which is a procedural requirement under RRS 63,6. But the only real penalty is the leverage lost when a party decides to take an after race scoring penalty as part of the arbitration. So the procedural requirements are less.
In my opinion, we get very stuck on the language of the rule and not the purpose. When we understand the purpose, we can apply the rules in a more fair and uniform fashion. So my suggestion is to think of it in terms of procedural requirements instead of a bright line defined by the words in the rule. We really don't have two kinds of hearings and a meeting. We have three processes (maybe more) wherein the procedural requirements are defined, more where the penalty is greater. That allows us to understand the rules in such a way, we can apply them in cases where it is not so clear. We may decide that greater procedural requirements are justified in a situation where the rules don't require it, or we can understand why witnesses are excluded from arbitration, not just because it says so in the rule book.
Firstly there is no mention in the question that the Si's referred to appendix T so it is possible the question was about a different form of arbitration. If a different system has been used, or they failed to mention appendix T as required, then the answer may be more relevant.
However the answer does mention appendix T so we have to assume it does apply to hearings held under the appendix.
I think the first part of the answer could have been more firmly answered if it had said something like:-
If a party accepts a penalty then it is still open for the other party to insist on a protest. This may be meaningless as 64.1(b) would mean the first boat could not be further penalised.
I also think that the answer gives the impression that an accepted arbitration decision can be appealed. I do not think this is correct or should be encouraged.
Once an arbitration decision has been accepted by both parties then it should be final. Anything else makes a nonsense of the system.
I agree with earlier comments that this system would be better called mediation but it all becomes a circular argument that does not really change the system.
Appendix T doesn't use the hearing procedures in 64-66 so I don't think changes are required. Those rules are in full effect if a protest hearing is convened.
The protestor can refuse to withdraw her protest even if the protestee decides to take a scoring penalty. If the protestor can convince the PC that the scoring penalty was insufficient for any reason protestee could still be disqualified. Otherwisetthe PC may determine that the protestee broke a rule and took the appropriate scoring penalty.
Your question has raised interesting issues. One is the Q&A panel's assertion that an arbitration meeting is a "hearing" within the meaning of the rules of Section B, rather than simply a "meeting" between the parties and an arbitrator? It's a moot point.
The penultimate IJ Manual says that an arbitration meeting is not a protest hearing:
"An arbitration hearing is not a protest hearing. While the general procedures of hearing a protest are used in arbitration, the arbitrator is not bound by the rules of Part 5 that govern the conduct of a protest hearing. The arbitrator and the competitors should understand that any participant in an arbitration hearing may decide that the protest should be heard by the protest committee. Such a request from a competitor must not be denied".
The current 2019 IJ Manual at L5 says;
"The arbitrator’s opinion and the decisions of the parties to the protest made at arbitration are not subject to appeal."
There is, therefore, a pretty solid argument that Part 5 Section B rules do not apply to arbitrations because they are not "hearings". Similarly, Section D rules do not apply, which means arbitration decisions may not be appealed - although once an arbitration decision has been accepted and the protest withdrawn, there is no protest to appeal anyway. It is only if one or other of the parties at arbitration fail to accept the opinion of the arbitrator, (arbitration is voluntary) that the protest goes to a PC for a protest hearing - and its decision is appealable.
As to witnesses in arbitration meetings:
The preamble to Appendix T says guidance on arbitration can be found in the WS IJ Manual;
(a) penultimate IJ Manual; "Only the arbitration judge(s), the protestor and the protestee are permitted to attend. No witnesses are allowed. "If a competitor believes the case requires a witness, the protest will go to a protest hearing".
(b) current IJ Manual; "Only the arbitrator, the protestor and the protestee are permitted to attend. No witnesses are permitted. If a party believes the case requires a witness, the protest goes to a protest hearing".
Having regard to the foregoing comments, I'm inclined to the view that there is no right of appeal from a decision of an arbitration and witnesses are not permitted at arbitration meetings.
.
That does seem to be in conflict with both the letter and intent of Appendix T.
So how authoritative are WS Q&As?
I agree with John's point here .. the premise of the original post was a bit faulty. The decision of the Arbitrator is not final because the Arbitrator does not decide. The Arbitrator renders opinions ..
After that, the parties decide and agree, if they would like to accept a penalty, withdraw the protest, or proceed to the hearing.
Once the parties decide and agree, then that is final.
An arbitrator’s decision under appendix T is NOT final. It only becomes final when accepted by both parties.’
There is no provision in Appendix T for the parties to agree on anything.
For instance,
I think that’s what John S and I were referring to. If you want to replace “agree” with the concept of “absence of objection”, OK
I think our main point was that the OP’s original premise was misleading. The Arb does not decide, only offers an opinion which may inform voluntary actions of the parties.
My apologies, I did not read your previous post properly.
I certainly agree with you that 'The decision of the Arbitrator is not final because the Arbitrator does not decide. The Arbitrator renders opinions'.
I agree that the arbitrator does not 'decide' but 'recommends' and that I could have worded my post slightly differently.
This does not however change the premise of the post.
The balance of opinion here is that the Q and A is at best misleading, or, as Phil says, possibly wrong in this case.
I hope the Q and A panel get to read these posts and either come forward to explain why we may be wrong or reissue the Q and A to provide the clarification we are now looking for.
In the same way the Q and A's are not authoritative nor are the opinions on this forum - but it would be nice to get agreement!
The protestor may request withdrawal and the arbitrator may grant that request on behalf of the PC. And a party may agree to take a penalty, which request the arbitrator may also agree to accept.
Their point is, though the SI’s name the procedure described “Arbitration”, it is NOT Appendix T Arbitration. Just using the word doesn’t need make it so.
... That because the Arbitrator decides, and that decision is binding, that the basis of the procedure is modifications to Part 5, Section B and not Appendix T and therefore the SI change restrictions to Section B apply as well as procedural rights of the parties afforded to them under B.
But under Appendix T arbitration procedures the meeting is not a hearing, as the arbitrator only gives an opinion.
BTW on further investigation (Wikipedia) I think Appendix T does describe a non-binding arbitration process, not mediation.
Tim, the 2017 International Judges Manual opines on that distinction in its opening sections as well. The IJM is the source of many of my comments in this thread.
Apart from disagreeing that an arbitrator 'recommends': an arbitrator does (or should do) nothing more than state an 'opinion', I think we are in furious agreement.
An arbitrator makes a decision, whether the parties agree or not. Judges are arbitrators.
Why did World Sailing (and US Sailing who started the arbitration thing) title it "Arbitration"? It just causes confusion, as shown by all of the above posts.
It's non-binding arbitration where the arbitrator gives an opinion on how the dispute should be settled but the parties are not bound to accept the arbitrator's opinion (except to the extent that if the arbitrator feels that it needs to go to a hearing they can decline to allow withdrawal).
Appendix T process sounds like nonbinding arbitration to me - the arbitrator assesses the strength of each party's case and offers an opinion. Either party is free to accept the opinion and choose a resolution (request for withdrawal and/or scoring penalty) or to choose to proceed to a protest hearing. (except, for the pedants: protestee cannot demand a hearing if the protestor requests to withdraw the protest and the arbitrator permits the withdrawal and; neither party can avoid a hearing if the arbitrator decides that rule 44.1(b) may apply or that arbitration is not appropriate)
Side 1: It doesn't matter what we call it as long as we do a very good job defining what it is and is not.
Side 2: It does matter what we call it because some words have well accepted meanings and therefore using an understood word and defining it as something else causes confusion.
FWIW .. this is how the 2019 IJM describes the difference: (pg L.1)
In neither case is the arbitrator trying to help the parties negotiate a resolution, so mediation isn't an accurate term as Angel points out.
Part of my initial confusion on this thread is that the OP discusses a different arbitration process from Appendix T. In that process, apparently, the arbitrator renders a decision (so it's binding rather than non-binding arbitration). In that case, where competitors must accept the arbitrator's penalty decision, I think it's a hearing so witnesses and appeals must be allowed.
Part of my initial confusion on this thread is that the OP discusses a different arbitration process from Appendix T. In that process, apparently, the arbitrator renders a decision (so it's binding rather than non-binding arbitration). In that case, where competitors must accept the arbitrator's penalty decision, I think it's a hearing so witnesses and appeals must be allowed.
1. Appendix T allows the arbitrator to act on behalf of the protest committee in accordance with rule 63.1 to allow the withdrawal. Is the arbitrator permitted to decline the request on behalf of the PC?
2. If so, is the protestor permitted to renew the request for withdrawal with the PC?