Forum: The Racing Rules of Sailing
'Unallowing' withdrawal of a protest
P
John AllanCertifications:
- National Judge
- Regional Race Officer
0
- Can a protest committee reverse a decision under rule 63.1 to allow a protest to be withdrawn, so that a protest hearing will then follow?
- Can a protest committee reverse a decision made on its behalf by an Arbitrator under rule T4b to allow a protest to be withdrawn, again, so that a full protest hearing will then follow?
- Can an Arbitrator reverse a decision under rule T4b to allow a protest to be withdrawn and the send the protest to the protest committee?
Comments
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I think the answer, as always, is, "It depends".
Because a Protest Committee can decide to reopen a hearing "if it decides that it may have made a significant error" (RRS 66, I believe that this may extend to a submitted protest that is withdrawn, depending upon the circumstances.
This is always true, IMHO, if the basis of the request for withdrawal was found to be untrue or based upon a falsehood. In the latter case, RRS 2 and 69 may come into play.
Basically, I see no reason, if the arbitrator or the protest committee realizes that they made an error before the end of the event, that they should somehow be bound by that error. They should, however, be prepared to defend just what has changed their individual or collective mind.
2. Yes. Appendix T4(b) provides that the arbitrator is acting on behalf of the PC and hence and decision the arbitrator makes is a PC decision. The PC can then re-open under r66.
3. No. Appendix T4(b) limits the delegation to specific actions in accordance with 63.1. There is no delegation to allow the arbitrator to act under r66.
While I agree that rule 66 provides a supporting principle, I don't agree that a decision to allow a protest to be withdrawn under rule 63.1 is a hearing.
Not all decisions made by a protest committee are required to be preceded by a hearing.
The RRS provide for protests committees to conduct hearings as follows:
There are other decisions that the RRS empower a protest committee to make without a hearing, including:
Howard, as to 3:
Given the principle that an administrative decision-make can 'unmake' a decision that is manifestly wrong, and the fact that to 'unallow' withdrawal of a protest will always lead to the 'more foolproof' step of a hearing before the full protest committee, would you not agree that the more expedient course would be to allow the Arbitrator to reverse the decision, without reference to the committee as a whole?
Could I attract you to the principal ratifying action of an agent?
Regarding 3, Appendix T is clear on the role and authority of the arbitrator. T4(b) is the only clause that provides express delegation of specific PC authority. It does not extend to all powers of a PC.
One could develop a strong position on alternative positions. Such as SHOULD the Arbitrator be allowed to change the decision to allow a protest to be withdrawn? If the arbitrator's reasons for doing so are other than on the his/her own cognisance then he/she would misconduct himself/herself by doing so. I would expect a competent arbitrator to seek guidance from the PC if he/she felt they had made an incorrect decision.
"Could I attract you to the principle ratifying action of an agent" - It is my considered opinion that you are not in possession of sufficient lipstick to make that attractive. A beer or two at RSYS might be a good start though.
(1) Yes, as Howard has explained, a PC may reopen a hearing under rule 66 - when it decides that it may have made a significant error or when significant new evidence becomes available within a reasonablw time. However, it's only under these limitations that a PC may reopen and I think it's unlikely that a PC would agree to reopen solely on the basis of a party wishing to withdraw the protest.
(2) No. Question two I think, refers to circumstances wherein an arbitrator has, during the arbitration process,allowed the protestor to withdraw the protest. Once a protest has been withdrawn iit has progressed beyond the authority of the PC.
Under Appendix T, it is the parties that make the decisions & not the arbitrator, so once an arbitrator allows a protestor's to withdraw a protest, there is no going back for the protestor. The protest has been withdrawn and in consequence it no longer has any standing with the RC or PC apart from recognition that the protest had been submitted and dealt with according to the rules. The protestor would, however, be at liberty to re-submit or lodge a new protest subject to the PTL having not expired.
(3) No. It's the same for Arbitrations as it is for PCs. Once the parties have agreed an outcome and the arbitrator has allowed the protest to be withdrawn, there is no procedure by which the arbitrator can reactivate the original protest
To reiterate, an arbitrator only gives an opinion of what a PC is likely to decide (rule T3) and it is for the parties to then determine what action to take. There is no compulsion on the parties to accept the opinion of an arbitrator, but unless a protest is withdrawn, a protest hearing will be held.
There is to be a hearing is a protest is not withdrawn so the consideration to allow withdrawal is not really a hearing.
If it were a hearing it would have to be scheduled and the parties would have to be present which appears not to be the practice.
The PC just check there is a good reason to withdraw alone with no official hearing.
So no no reinstatement and no reopening of that procedure.
1. When the Arbitrator allows a protest to be withdrawn he is acting on behalf of of the PC, not independently (RRS T4(b)).
2. Allowing a protest to be withdrawn is a decision of the PC made, as the IJ Manual points out, in the course of a 'brief hearing', possibly with only 1 PC member present. A protest committee hearing takes place whenever there is a proceeding before at least one member of the protest committee who has the authority to make a decision regarding the matter in question. In an arbitration meeting the Arbitrator has no authority to make a decision UNTIL he is asked to act on behalf of the PC to allow a protest to be withdrawn.
3. Any hearing can be reopened when the PC decides that it may have made a significant error or when significant new evidence becomes available (RRS 66)
It seems to me therefore that a decision to allow a boat to withdraw a protest can be the subject of a hearing to reopen, and that the hearing can reverse the decision to allow a protest to be withdrawn. Not something we should be doing frequently.
Reasons to consider reopening might include:
- misreading the protest form and not realising that the protestor may have broken a rule (mea culpa)
- PC learns after allowing the protest to be withdrawn that there was serious damage not mentioned by the protestor.
Gordon
That's well stated position that I think is worthy of hashing out. (I would agree with your statement above, but would be interested to read opposing arguments)
Curious what you think about my argument (repeated below) when the request for protest-reinstatement is made by the Protestor.
I do not believe there is any rule preventing a Protestor from filing multiple protests for the same incident. Wouldn't it be simpler, for this subset of instances, to treat the reinstatement request as a new filing? (with all the fresh validity and TL hurdles that come along with it)
I can locate the following relevant definitions of 'hearing':
English dictionary (Shorter Oxford) 2. The action of listening ... 3. The listening to evidence and pleadings in a court of law; the trial of a cause ...
Legal dictionary (CCH Macquarie) A general term for the presentation of matter before a tribunal.
As I enumerated in a previous post, there are a number of processes which, by the rules, the protest committee is expressly required to 'hear', and there are a number of decisions which the protest committee is empowered to take without 'hearing' from anybody, including:
It is pretty obvious that you don't hold a hearing to decide whether to call a hearing.
The prerequisite decision of a protest committee to call a hearing under rule 69 is most definitely not a hearing.
Rule 63 states a number of requirements for 'Hearings', including, in particular Notification of time and place of the hearing, and Right to be Present.
These requirements do not apply to the decisions listed above.
Not every decision to be taken by a protest committee is, or requires a hearing.
Gordon’s concise statement is something that could be simply asked of the Q&A service.
I could make the argument that the phrasing of 63.1 differentiates the action of a P.C. that “allows” a withdraw as something different than a hearing through the use of the word “unless” (i.e. .. "The [PC] .. shall hear .. unless it allows..") ... supporting the idea it is not a hearing.
Here is another swing at it (modifying my previous structure) by exploring the possibilities of request for redress. If allowing a protest withdraw is not an action from a hearing, it is certainly still an action of the P.C. which could have been done improperly.
Question: For #2 above, could one imagine that, given the right set of facts, that the fairest arrangement for all could be to reinstate the protest based upon the timestamp of the initial filing and proceed to a hearing?
"Arbitration adds an extra step in the protest resolution process. An arbitration hearing is not a protest hearing. Arbitration is simply a short meeting at which the dispute is resolved without a hearing by the protest committee. The arbitrator is not bound by the rules of Part 5 that govern the conduct of a protest hearing and arbitration decisions are not subject to appeal because, If the arbitration decision is accepted, the protest is withdrawn and there is no protest remaining.
I full realize that WS manuals don't have the authority of its Cases, however, I really do believe the summation sets out the principles of arbitration in a clear and simple way.
Having regard to the above, I have concluded that when a protest has been withdrawn and there is no protest remaining, there is nothing to reserect.
Cheers,
Phil.
Commenting on item (1) hereunder;
(1) If the Protestor requests a withdraw-allowance reversal, the P.C. should treat it as a refiling of the protest, a new timestamp-of-submittal assigned and the protest heard.
I'm inclined to think that the protest can be re-submitted as you say, and the PC would follow the same procedure that it would adopt in the case of a protest being lodged against a boat that had taken a post-race penalty under rule T2. But the boat that took a post-race penalty couldn't be penalised again because she had already taken an appropriate penalty.
The PC couldn't use the infomation contained in the original protest form to protest under rule 60.3(a) because the information therein was obtained from a person with a conflict of interest. I think the PC would have to request the protestor to re-submit .
Commenting on item (2);
(2) If the request is from some other source, then it’s a request for redress, based upon a PC improper-action-claim (action being the allowance of the protest withdraw).
I think a request for redress would be bound to fail. A boat can seek redress for an improper action or omission by a RC, PC, TC or OA. However, when a boat takes a post-race penalty under either T2 or T4, neither the RC, PC, TC, or AO have been involved in the process - only the arbitrator.
That's about the best I can do Ang. I hope it helps.
Phil.
Phil, this was a subtle point I was trying to make in my #2, to which you previously commented upon. Here it is repeated for convenience ..
Ang wrote:
My point is looking at Appx T:
When the Arbitrator approves a protest withdraw request, the Arb is acting on behalf of the PC, and therefore it is an action of the PC. As an action of the PC, it has the potential to be done improperly.
Therefore (my #2), if the request to reverse the protest withdraw comes from any other source than the Protestor themselves, that would necessarily be limited to an R4R with the claim of improper action by the PC (which in this case would have been done by the Arb on behalf of the PC).
Ang
I agree 100% except when the Arb allows a protest to be withdrawn. I think Appx T.4.b makes it clear that the decision to "...act ... to allow the withdraw.." is not made by the parties, but rather the Arb and thus the PC via 63.1 .
Yeah, it's an interesting conundrum Ang. There's no question that if (A) sees (B) break a rule and take a 44.2 penalty, to which (A) thinks (B) is not entitled, because (B) gained a significant advantage, (A) can protest . Should there not be a similar opportunity in the case of a boat taking a Post-Race Penalty under T! or T4 when a third party first learns of the taken penalty after the race? However, I'm not sure that there is such an opportunity. I think Redress is out;
Only 62.1(a) could apply if a request for redress was lodged by A, but A's score, after allowing for B's penalty, would remain unchanged [calculated as per 44.3(c)] so A's score wouldn't have been made significantly worse. Plus B choosing to take a P-R penalty, has nothing to do with the arbitrator, so there would be no "improper" action involved in B taking the penalty.
If in the case of a protest haviing been lodged by C [the other boat in the incident with B] and arbitration of that protest having led to the arbitrator "allowing" C to withdraw her protest, it's highly unlikely that the arbitrator's action would be found "improper", because agreeing to such a withdrawal is anticipated and permitted by rule T1 & T4. In addition, having allowed the withdrawl is indicitive that the arbitrator had assessed that 44.1(c) was not applicable whilst forming his/her opinion.
It certainly brushes the cobwebs away. That's for sure. Cheers, Phil.
Here are scenarios to add some water ...
An inexperienced Arb attends to a protest, Boat A protesting Boat B. After listening to the validity info, the Arb conveys that it’s likely valid. After hearing the incident details, instead of simply stating that the PC is likely to find that a boat broke a rule, the Arb lets slip that they believe it is Boat A (the Protestor) that broke a rule, and the Rule(s) the Arb believes where broken. Boat A requests to withdraw the protest, but Boat B objects. The Arb allows Protestor to withdraw above Protestee’s objections.
... or ... Say during the arbitration it’s discovered that is very likely that the incident meets 44.1(b) and during the arbitration the Protestor realizes it is they who are at fault? Though 44.1(b) is likely, the Arbitrator continues the process. Boat A requests to withdraw the protest, but Boat B objects. The Arb allows Protestor to withdraw above Protestee’s objections.
Boat B R4R’s for reinstatement of the protests above based on a claim that allowing the withdraw in those circumstances was improper.
To me there can be no reopening on a withdrawal.
It really is not a "Hearing" as It does not comply with the hearing requirements, set time parties present etc.
It is really no more than an Administrative step, prior to a protest, where just a few basic facts are checked.
After an arbitration it is again a step to make the process work by ensuring there is no protest and thus no Hearings required by the rules.
Ang, You wrote;
"After hearing the incident details, instead of simply stating that the PC is likely to find that a boat broke a rule, the Arb lets slip that they believe it is Boat A (the Protestor) that broke a rule, and the Rule(s) the Arb believes where broken. Boat A requests to withdraw the protest, but Boat B objects. The Arb allows Protestor to withdraw above Protestee’s objections".
Couple of things;
I think you misunderstand the arbitration process, because an arbitrator can't "let slip", as you say, that A broke a rule, because it is the very roll of the arbitrator to give an opinion of which boat broke a rule. And it often happens that a protestor is found to be the boat that infringed. There is nothing unusual about that.
"and during the arbitration the Protestor realizes it is they who are at fault?"
The WS IJ Manual gives guidance on this question - Arbitrators may agree to allow such early requests to withdraw a protest, but only on Bona Fide grounds. Having already decided that A was at fault, I'm not aware of any judge who would approve wihdrawal in those circumstances.
"Boat A requests to withdraw the protest, but Boat B objects. The Arb allows Protestor to withdraw above Protestee’s objections".
I'm afraid that boat B has no special right to onject, indeed no right at all, under T4(b) to object to A deciding to take a Post-Race Penalty and withdrawing the protest. A protestor's right to not withdraw a protest does not suddenly transfer to a protestee if the protestor is at fault. There is noting improper in that.
Agree. Along the lines of your “Bone Fide grounds”, the IJM gives the example of .... “If any appropriate penalties are taken, the arbitrator then asks if the protestor wants to withdraw the protest.”
You then go on to say that you don’t know of any Judge would approve withdraw under other than those circumstances. That’s my point, a judge allowing withdraw Inappropriately.
I am talking about a claim of an improper action ... someone doing something out of the proper process. I think my examples align with the IJM’s predicate, “any appropriate penalties are taken” .. as in both my examples an appropriate penalty was not taken.
Therefore, it seems to me there are proper procedures surrounding the act of allowing a protest to be withdrawn. Such as at least:
I'm afraid that this Post has become something like a discussion paper, which it isn't intended to be. However, I've jotted down some important things that I believe apply in arbitrations:
(a) Rule T establishes an extra step in the protest resolution process - it is a meeting, seperate to, and not of inself, a protest hearing.
(b) Having heard the evidence of the parties, the arbitrator offers an opinion of what a PC would likely find, if the protest went to a hearing:
(1) the protest is invalid
(2) no boat will be penalized for breaking a rule' or
(3) one or more boats will be penalized for breaking a rule, identifying the boats and the penalties.
(c) In forming that opinion, the arbitrator considers;
(1) validity
(3) the facts
(4) the RRS.
(d) Having considered the arbitrator's opinion, the parties make the following decisions.
(1) a boat may choose whether or not to take a post-race penalty.
(2) a boat may choose whether or not to withdraw her protest.
(3) provided that a boat takes a post-race penalty and a boat chooses to withdraw her protest, the arbitrator will ratify the withdrawal.
(4) if a protestor asks to withdraw her protest before an arbitrator offeris an opinion, the arbitrator may allow the withdrawal provided it is made for Bona Fide reasons.
(e) There is no right of appeal from the process of arbitration.
(f) Arbitration parties are not entitled to redress, because arbitrations are not PC hearings & because an arbitrator only offers an opinion. However, if
arbitrations were "PC hearings", rule 62.1(a), third line, would exclude the parties from seeking redress.
(g) Other boats are not entitled to redress for the same reason as in (f) above. However, If arbitrations were "PC hearings", the requirement in rule 62.1, that
the score of a boat requesting redress had been made significantly worse, would exclude them - post-race penalties don't change the scores of other boats
in the race.
(h) I acknowledge the concern you have about what recourse, if any, a third party boat might have if she considered a withdrawal made in arbitration to be
inappropriate, either because of injury, serious damage or gaining an advantage, having occurred in the incident [rule 44.1(a)] What can she do? She can't
protest the arbitrator - she can only protest a boat. Requesting redress won't work for the reasons outlined in (f) & (g) above. She can't request a re-
opening because arbitration meetings are not hearings & she wasn't a party anyway. She can't appeal. And she can't protest a boat for withdrawing her protest.
If on discovering that a boat in arbitration chose to withdraw her protest, she might protest the boat that chose to take a post- race penalty on the grounds that rule 44.1(a) applied. However, I am confident such a protest would be found invalid, because it involved an incident in the race area and the protest requirements in rule 61 had not been complied with.
It's for these reasons that I have concluded that we must respect arbitration outcomes. However, if there are grounds to allege that impropriety has occurred in arbitrations, rather than just an error of judgement, there are appropriate procedures within WS to ideal with such allegations.
The question is probably better explored in the affirmative.
I’ll post that as a separate thread.
Having considered the arbitrator's opinion, the parties make the following decisions.
(1) a boat may choose whether or not to take a post-race penalty.
(2) a boat may choose whether or not to withdraw her protest.
(3) provided that a boat takes a post-race penalty and a boat chooses to withdraw her protest, the arbitrator will ratify the withdrawal.
(4) if a protestor asks to withdraw her protest before an arbitrator offeris an opinion, the arbitrator may allow the withdrawal provided it is made for Bona Fide reasons.
I would rewrite this :
Having considered the arbitrator's opinion, the parties make the following decisions.
(1) a boat may choose whether or not to take a post-race penalty.
(2) the protestor may ask to withdraw her protest.
The arbitrator may then act on behalf of the protest committee (see RRS T4b) to allow the protest to be withdrawn. If the opinion of the arbitrator was the case was suitable for arbitration, that no boat will be penalised or that the protestee will be penalised by the PC and the protestee accepts a post race penalty then the arbitrator, acting for the PC, will almost always allow the protest to be withdrawn. In other cases the arbitrator may refuse to allow the protest to be withdrawn, or confer with other members of the PC.
The key point is that the request to withdraw the protest is made to the Protest Committee. When any protestor makes a request to withdraw, verbally and in writing (on the back page of the protest form), the PC (not necessarily the whole panel) may ask why and then decide to allow or not the protest to be withdrawn. I agree with the Judges Manual that this is a (mini) hearing and conclude therefore that this hearing to consider a withdrawal can be re-opened.
Gordon