Forum: Protest Hearing Procedures
Protest Withdraw Request Process - Act? / Procedure? / “Brief-Hearing”?
P
Angelo GuarinoCertifications:
- Regional Judge
- Fleet Measurer
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This thread was born from a previous discussion exploring the possibility of reversing a decision to allow a protest withdraw. That thread can be found here.
That discussion begged the question, “What is the proper procedure and circumstances a protest-withdraw should/could be allowed in the first place?”
The direct references in the RRS are scant (IJM ref’s at bottom). I know of only:
That discussion begged the question, “What is the proper procedure and circumstances a protest-withdraw should/could be allowed in the first place?”
The direct references in the RRS are scant (IJM ref’s at bottom). I know of only:
- RRS 63.1 : "... The protest committee shall hear all protests and requests for redress that have been delivered to the race office unless it allows a protest or request to be withdrawn."
- Appx T4.b " a boat may ask to withdraw her protest. The arbitrator may then act on behalf of the protest committee in accordance with rule 63.1 to allow the withdrawal. "
1) Is there a “right” to withdraw a protest?
This comes directly from IJM K-14’s title (below). Seems to me both the RRS and IJM’s are otherwise consistent that withdrawing a protest is a privilege/allowance by the PC and fully within its power to grant or not. Is K-14’s title’s use of “right” just unfortunate wording or is there more to it?
2) Is the PC’s determination-process a “brief hearing”? (ref: IJM J-7 below)
There are different types of hearings described in the RRS and a “protest withdraw hearing” is not one them. If it is a “hearing”, then
- who are the parties to this hearing? (by IJM J-7, it seems only the protestor is invited)
- if others, what notice is required or prudent?
- if there are parties, can they call witnesses?
3) What is this hearing/discussion trying to determine?
- IJM J-6 suggests a criteria is that if the PC believes the Protestee (or Protestor) took an appropriate penalty, the PC should offer protest-withdraw.
- IJM K-14 making sure that “damage, injury or foul-play is not suspected” (this loops back to the question of the structure of the “brief hearing”, what parties and testimony) .
- Question: is PC only to rely upon the Protestor’s information to determine if “damage, injury or foul play” are suspected? Seems to me both parties should be talked to.
- IJM L-5 uses the wide-open phrase “with good reason” and J-7 puts it the most firmly that “The PC would allow the withdrawal ..if .. satisfied that the request is reasonable“.
That’s all I’ve got as far as thoughts, questions ideas. I look forward to hearing your ideas.
Ang
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In the IJM here are several references (non-header emphasis added). This list is not exhaustive of every reference. If I missed one that is potentially dispositive, please add it.
- J-6 " ... Once that [the Protestee's penalty acceptance] declaration is made, ask the protestor whether he or she wishes to withdraw the protest since, under rule 64.1(b) the protestee has now taken a penalty and could not be subject to any further penalty in that incident if it goes to a hearing. If so, ask the protestor to write on the form, “I wish to withdraw this protest”. The protest committee may then allow the protest to be withdrawn under rule 63.1."
- J-7 "Withdrawing Protests Once the protest has been received, a protestor’s request to withdraw the protest must be approved as a decision of the protest committee (rule 63.1). This involves a brief hearing in which the protestor provides the reasons for the request. The protest committee would allow the withdrawal of the protest if it is satisfied that the request is reasonable. The competitor should also sign the protest form confirming withdrawal of the protest."
- K-14 "Right to Withdraw a Protest Withdrawing a protest requires the approval of the protest committee. A competitor may not automatically withdraw a protest simply upon request. The protest committee should determine the reason why it is being withdrawn. If foul play, damage or injury is suspected, permission should not be given."
- L-1 "... The [Arbitration] process then permits the protestor to withdraw the protest."
- L-4 "... Only if the protestor requests to withdraw the protest may the arbitrator act on behalf of the protest committee to allow the withdrawal."
- L-5 "... The arbitrator may, with good reason, accept a request to withdraw a protest before arbitration begins. The arbitrator’s opinion and the decisions of the parties to the protest made at arbitration are not subject to appeal. If the protest is withdrawn, there is no protest remaining and nothing to appeal.
Comments
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If so, I'd tend to agree as Def: Party does not include a 'protest-withdraw hearing' ... which is also one argument against the idea that it's a "brief hearing". - Ang
I probably run into this issue 3-5 times a year. Sometimes by the protestor before a session and sometimes right at the beginning of a session. I don't usually like to do this alone. If I am doing the hearing I ask why they wish to withdraw. Maybe a follow up. Then allow the other judges to also ask one. Then get alone and ask opinions. In the last 8 years I believe I have not allowed withdrawal 3 times. If denial is the case, the hearing goes forward even if the protestor leaves and decides not to give testimony. Overall this has not been an issue of dispute.
I don't know if you would call that a hearing, but it is a judgement. I see it like validity, prior to the real hearing.
Lloyd
Or is this another lesson that EVERYBODY has to protest?
Your play-by-play is along the lines of what I'm trying to foster with this post. We only have the 2 RRS references I posted and the IJM paints it in different ways in different sections. Taken together though, the IJM does give us some boxes to tick.
In my experience, the vast majority of withdraws are due to the Protestor learning that the Protestee took a penalty. This might come from the Protestee first and then the Protestor asks around and a competitor says "yea, I saw him do turns" .. or the PC receives a protest-acknowledgment/retire from the Protestee, tells the Protestor and asks if they'd like to withdraw.
An important point in both of the above is that it involves information/acknowledgement from the Protestee.
I think my Q#3 is the core of the question and the formulation of a best-practice that is consistent. What info should the PC have and what boxes should be ticked, before allowing a withdraw?
If we want to be sure we don't suspect that “damage, injury or foul-play" is a factor .. at a minimum I think the Protestee should be asked if they would like to offer any reason that the withdraw should be denied .. or if they have any objections, what are they? It could a few simple questions to both Protestor and Protestee ..
Our rules allow the requestor the opportunity to request withdrawal and provide the protest committee the discretion to allow a withdrawal. And our guidance (in many forms) suggests we should give the requestor the opportunity to state the reason why they want to withdraw. So, clearly the protest committee (or arbitrator) is in the position to pass judgment on whether or not withdrawal should be allowed. Where the protest committee might take some decision which will affect the competitor by taking a right or privilege (or property), we should be thinking in terms of procedural justice. What procedure is required and what procedural protections might increase the fairness of the decision considering the burden on the parties and the protest committee. We can recite the recipe for how it's done now, but I think the real question Angelo is asking is, what are we trying to accomplish and how do we get there in a fair manner.
The process we use now requires a decision from the full protest committee (or arbitrator), but otherwise doesn't have a well defined process for making that decision. The IJ manual basically defines a process where procedural justice is limited to the opportunity to gather some evidence by an unbiased panel, and suggests the basis upon which the decision should be made. That doesn't mean you couldn't invite the respondents or allow for cross-examination, but in light of the need to expedite the process, our guidance makes the process pretty simple (and even most of that isn't required). I think any protest committee should focus on getting to a decision based on no evidence of mal-intent or coercion, and use whatever procedural tools they have to get to a point the protest committee is comfortable with the decision.
Like you, I'm still thinking about your original query - whether or not a protest once withdrawn could be 'reopened' somehow or other. You are well aware of my opinion on that issue. However, over coffee this morning, it occurred to me that if a PC wants to revisit its allowance to a protest to be withdrawn, it can simply protest the boat that had withdrawn its protest under rule 60.3(a). And the PC can use all the info in the withdrawn protest, because the information therein was provided by the representative of the boat herself.
Phil.
You should post that nugget at the end of the other thread so people following that one can find it.
Also, I can’t take credit for that thread’s idea. That came from John Allan.
Paul, I like your addition of “coercion” to the tick-box list. I think it goes well along with “foul play” and concepts of “for good reason”. Also your points on “hearing” make sense to me.
I keep coming back to my list (adding “for good reason” questions). I’m not suggesting below is a fixed script, but rather emblematic of information-gathering and process. The info below can be obtained separately and pieced together. Seems to me if the PC gets the info represented by the Q’s below, they have a basis that they conducted due diligence prior to a decision on withdraw-allowance.