This post is just a toss over the fence to enlist the sharing of thoughts and experiences of forum members (I'm not trying to suggest there is anything wrong with the RRS's or the Judges Manual).
I was on a PC where Arbitration was also in place. I was not one of the arbitrators, but rather on the juries. During the protest-hearing (post arbitration), the Protestee was adamant that the Protestor had changed his story from what was said in arbitration .. and in such a way that both boats would be DSQ'd if found true (the claimed-change created 2 incidents instead of 1). Based upon only the Protest filing (and what the Protestee claims the Protestor said in arbitration), the Protestor would be DSQ'd alone. The Protestee objected making the case that, had he heard this additional-incident claim during arbitration, he would have taken the scoring penalty (now unavailable to him).
The Chair was an experienced Judge and really guided us through all this. We determined that we could not call the arbitrator in as a witness in that proceeding, only under a separate RRS 69 hearing. We found a way to resolve the protest to our satisfaction without going that route.
Recently, I had the occasion to talk with a different Judge and the topic of arbitration came up. We were sharing experiences and I brought up the above hearing. This Judge said that there is nothing in the RRS which forbids the arbitrator from being on the jury for the following protest (and had heard/seen it done) .. or to be just in the room as a reminder to all to keep the stories consistent.
Looking at the RRS's and (US) Judges Manual, there are a couple of places which touch on this (emphasis
- RRS Appendix T states "Further guidance on arbitration can be found in the World Sailing International Judges Manual,
- pg 9-2 JM "The following principles should be followed ... The arbitrator is not a member of the protest committee that will hear the protest being arbitrated if it goes to a protest hearing.
- pg 9-4 JM "If the protest goes from arbitration to a protest hearing, the arbitrator should not be a member of the protest committee, nor should the arbitrator be present at the hearing, except as suggested in 9.5 below".
Seems to me, the RRS's do not specifically forbid the arbitrator from being on the PC or being present (though I have a hard-time understanding how the arbitrator could be considered a "party" to the hearing such that they could sit in the room). The (US)JM provides "guidance" and then that guidance is couched in terms of "should" and "should not" .. not "shall" and "shall not". Even where the (US)JM states, "the arbitrator is not .. " that is part of a "principle" that "should be" followed.
What is obvious to me from this experience is that the arbitrator must have a very good poker-face and not inadvertently "coach" the parties by explaining the "why" of their decision (not saying that this happened in the above case, but the importance of that became much clearer to me after the experience).
So, I'm interested in your thoughts and experiences. - Ang
PS .. my references are for the US Sailing Judges Manual 2017-2020 not the WS International Judges Manual 2017