Appendix T applies when so stated in the notice of race or sailing instructions. It has two parts: the Post-Race Penalty; and the arbitration meeting.

Post-Race Penalty: A boat may take a post-race penalty for breaking a rule of Part 2 or rule 31 provided the requirements of rule 44.144.1(b) are met. If a boat decides she has broken a rule, she may choose to accept a 30% scoring penalty. This decision may be made at the end of the race, before or during the arbitration meeting, and up to the start of a protest hearing.

Arbitration Meeting: The second part is an arbitration meeting of the protestor and the protestee with the arbitrator, who is an experienced judge. The sailors each describe what happened on the water, and the judge then gives an opinion about the validity of the protest, and which boat, if any, broke a rule.

Regardless of whether a Post-Race Penalty is taken, a protestor may ask to withdraw the protest. The judge who arbitrated may act on behalf of the protest committee to allow the withdrawal.

The judge who will conduct an arbitration meeting should be highly experienced with a good knowledge of the rules. The individual must think and make decisions quickly and have the respect of the parties. The judge should have a thorough understanding of RRS Appendix T, validity, the rules of Part 2, rule 31, and rule 44.1(b). An excellent and thoughtful judge who needs time to reach a decision may not make the best judge to select to arbitrate and will usually be more valuable in hearings deciding the complex protests.

While it is not stated in the rules, where an international jury has been appointed, judges who conduct arbitration meetings should be members of the protest committee.

If a protest is not withdrawn, the judge who arbitrated may be a member of the protest committee that hears the protest.

Appendix T must be included as a rule by the notice of race or the sailing instructions to permit the Post-Race Penalty and arbitration meeting.

The Post-Race Penalty system and arbitration meeting work only if the Post-Race Penalty is less than the disqualification that a boat would receive in a subsequent protest hearing, and more severe than any penalty that is available to the boat on the water at the time of the incident.

A severe penalty often results in a competitor refusing to accept arbitration and instead deciding to take a chance on avoiding a DSQ in a hearing. Mathematically, the worse the boat’s finishing position in the race, the less advantage taking the Post-Race Penalty provides over a possible disqualification in a hearing. Likewise, a lesser penalty encourages a boat not to do a turns penalty on the water in the hope that the protesting boat will decide to drop her protest.

The Appendix T Post-Race Penalty is 30% of the score for DNF, rounded to the nearest whole number. The organizing authority may change the penalty by modifying T1(b) in the sailing instructions by changing the percentage, or by providing for a Post-Race Penalty that is a set points penalty.

As with other scoring penalties, there is no change to the finishing order of other boats in the race. Therefore, two boats may receive the same score.

The Appendix T Post-Race Penalty is available to any boat, when appropriate. A boat may not take a penalty other than retirement if she caused injury or serious damage, or if she has gained a significant advantage from her breach. See rule T1(a) and rule 44.1(b).

The Post-Race Penalty may be taken at any time after the race until the beginning of a protest hearing involving the incident: before, during or after the arbitration meeting. If the hearing is later re-opened, the Post-Race Penalty is no longer available. If the decision of the protest committee related to this incident is appealed to the National Authority, and the National Authority’s decision is to reopen the hearing, the Post-Race Penalty is no longer available. That entitlement ended when the original hearing began. See Rule T1(a).

If the protest committee concludes that it is clearly established that a boat knowingly broke a rule, the boat broke rule 2. Since rule 2 is a rule in Part 1, the Post-Race Penalty is not available to her.

Some advantages of the Post-Race Penalty in Appendix T are:

Arbitration takes place after a written protest has been delivered, but prior to the protest hearing. The judge’s role at an arbitration meeting is to give an opinion as to what the protest committee is likely to decide. Even though the process is informal, and the boats are not bound by the opinion of the judge, all the safeguards built into the rules of Part 5 for procedures for protest hearings and decisions remain in place. Even if a party decides to take a Post-Race Penalty, the protest remains and rule 60.5(a) requires that it must be heard by the protest committee. If the protestor requests to withdraw the protest, the judge who arbitrated may then act on behalf of the protest committee to allow the withdrawal.

Arbitration is appropriate in the following circumstances:

When a protest is delivered to the race office a judge reviews the protest to determine if the protest is suitable for arbitration. The hearing should be scheduled, and the arbitration meeting is held when the parties arrive. The scheduling of hearings can anticipate that some protests will be withdrawn during arbitration prior to a hearing. At large events, have more than one judge ready to arbitrate protests.

If one of the parties does not attend, or chooses not to attend, the arbitration meeting does not proceed, and the protest proceeds at the scheduled time. The protestee is given access to the hearing request and time to prepare before the arbitration meeting begins.

Hold the arbitration meeting in a quiet location, away from other competitors and observers. Standing, rather than sitting around a table, usually shortens the duration of the meeting. Only the parties to the protest give testimony. Witnesses are not allowed. Evidence given during the arbitration meeting should not be overheard by any potential witnesses if it goes to a hearing. A judge trainee or judge assessor may be allowed to observe the meeting if the parties do not object.

The rules do not address whether observers are allowed at an arbitration meeting. They are usually discouraged. If they are permitted, e.g., a parent at a youth event, then they must acknowledge that they must only observe. Also, the intent of rule 63.4(e) is clear and an observer at an arbitration meeting may not be a witness at a subsequent protest hearing.

The judge should have available the notice of race, the sailing instructions and any amendments to them, a current rule book, boat models and a watch to keep track of the time. When a boat accepts a Post-Race Penalty, it may be recorded on a form, the on-line form or on the back side of the original protest form, then signed by the boat’s representative. The back side of the protest form also has a tick box for the protestor to request to withdraw the protest.

The first step is to confirm that the judge has no conflict of interest.

The judge explains to the parties how the arbitration meeting is conducted, that it should take about 15 minutes, and that the parties will be deciding the outcome of the meeting.

The next step is to determine if the boat caused injury or serious damage. If it is possible that rule 44.1(b) applies, then rules T1(a) and T2 do not permit the boat to take a Post-Race Penalty. In that case, the arbitration meeting would not be held, and if it was in progress, it would be closed.

During the arbitration meeting, the judge might find that the protest is not suitable for arbitration. It may involve a rule not suited to arbitration, or the Post-Race Penalty is not appropriate. The arbitration meeting is then closed, and the protest, if not withdrawn, proceeds to a hearing.

The next step is to give an opinion on the validity of the protest. This includes the possibility that the protest committee will find the protest is invalid. For example, if the protest form and the protestor’s testimony clearly indicate that the protestor did not comply with the requirements of rules 60.2 and 60.3, the judge will advise the parties that the protest committee will likely find the protest invalid. The protestor then may request to withdraw the protest or proceed to the protest committee for a hearing. In either case, the arbitration meeting ends.

If the protest is clearly valid or clearly invalid after the protestor’s initial statement, then the judge’s task of giving an opinion on validity is easy. However, it is much more common that the protest is neither clearly valid nor clearly invalid. In such cases, consider:

The judge will decide, based on the balance of probabilities, if the protest meets the validity rules. When the judge is in doubt that the protest is suitable for arbitration, it proceeds to a hearing.

If the judge’s opinion is that the protest is valid and if rule 44.1(b) does not apply, then the arbitration meeting proceeds. In this step, the judge takes each party’s evidence, in turn, using model boats. The judge asks any necessary questions but keeps tight control of the conversation.

The judge will offer one of these opinions as set out in TT3 3 as to what the protest committee is likely to decide:

The judge applies the principles of exoneration to a boat that has been compelled by the other boat to break a rule.

If the meeting is not closed, Appendix T requires that the judge must give an opinion as to what the protest committee would be likely to decide. Stating that “the situation is too complicated” is not an option.

A good way for the judge to give the opinion is by saying “If this goes to a protest hearing, the protest committee will likely decide . . .”

After hearing the opinion of the judge, a party to the protest may decide to take a Post-Race Penalty at any time prior to the start of hearing.

A party that has been given the opinion that they are likely to be penalized for breaking a rule will sometimes consult with their coach or others after the arbitration meeting has ended and will often return to take a Post-Race Penalty before the start of a protest hearing. Remember that a boat may accept a Post-Race Penalty up to the start of the protest hearing.

Also, regardless of whether a Post-Race Penalty is taken, a protestor may ask to withdraw the protest and the judge who arbitrated may allow the withdrawal.

Once the protest is withdrawn, inform the protest committee that the protest will not go to a hearing, and inform the scorer that there is no score change from this protest. The judge may then discuss any aspect of the protested incident with the parties, if time allows. If time is limited, arrange to meet the parties later.

If the protest is not withdrawn, it must be heard by the protest committee.

Sometimes a protestor may choose not to withdraw the protest, on the misunderstanding that the protestee would be scored DSQ in the protest hearing. The judge should explain that if a boat has taken an applicable penalty, such as the Post-Race Penalty, then rule 60.5(c) applies. Then the boat may not be penalized further unless the protest committee finds that the Post-Race Penalty was not applicable, normally because rule 44.1(b) or rule 2 applied.

If the protest goes to a hearing, the judge who arbitrated may participate as a member of the hearing panel. If so, the judge must not discuss any aspects of the arbitration meeting with any members of the protest committee before or during the hearing.

Parties to the hearing may include statements and evidence that were presented in the arbitration meeting. Any discrepancies from information presented in the protest hearing may be questioned by parties and the protest committee.

The opinion of the judge and the decisions of the parties made at the arbitration meeting are not subject to reopening or appeal. If the protest is withdrawn, there is no decision of the protest committee to appeal.

Arbitration may not be appropriate for all events. Participants and class associations are best included in the decision to include Appendix T or parts of it for their event. An event may use only rule T1, Post-Race Penalties without the need for arbitration meetings.

The advantage of Appendix T Arbitration is that it can provide a faster way for the parties to a protest to come to a resolution by eliminating the need for a hearing. It allows a boat that broke a rule to take a lesser penalty than disqualification.

However, there are also disadvantages. The post-race penalty of 30% is an advantage only to the top 2/3 of finishers. Boats with worse finishes who take the post-race penalty of 30% can be scored no worse than the score for disqualification. Also, at high level events some boats will attend an arbitration hearing, but have no intention of resolving the matter, and are only present to learn the other party’s evidence. Arbitration and a hearing take much longer than proceeding directly to the hearing.