John F. Allgood
Dispute Resolution Section Board of Directors
Chair: Emory Speer Mabry III
Vice Chair/Chair-Elect: Herbert H. (Hal) Gray III
Secretary/Treasurer: Rex D. Smith
Immediate Past Chair
: Robert N. Dokson
John F. Allgood
Terrence L. Croft
William S. Goodman
Daniel E. Gulden
Halsey G. Knapp Jr.
these upcoming Section Breakfast Meetings
Mark your calendars for
Next Section Breakfast
Wednesday, September 5, 2012 - 7:30 am
at the Buckhead Club
"International Commercial Arbitration - Will Atlanta Be a Major International Arbitration Venue?"
Speaker: Glenn P. HendrixManaging Partner, Arnall Golden Gregory LLP and president of the Atlanta International Arbitration Society
Other Section Breakfast Meetings
- October 3, 2012
- November 7, 2012
- January 9, 2013
- March 6, 2013
- April 3, 2013
- May 1, 2013
Arbitrator and Not the Courts to Decide Statute Of Limitations Issue of a
In N.J.R. Associates v. Nicole Tausend, [June 27, 2012] the New York Court of Appeals ruled that the arbitrator and not a court is the proper entity to determine statute of limitations defenses to a counter claim. Regardless of whether the FAA or the New York arbitration code applies, the court concluded the proper forum for a statute of limitations defense to a counterclaim was arbitration.
The Court noted that the Claimant initiated the arbitration defended a motion to stay the arbitration and secured an order compelling arbitration. The court therefore found that the claimant's participation in the arbitration resulted in a waiver of any right to assert that the court should decide the limitations issue.
Eleventh Circuit Again Grants Motion to Compel Arbitration Based on Application of Georgia Contract Law
The United States District
Court for the Southern District
of Florida has had difficulty
in enforcing motions to
compel arbitration where it
has interpreted Georgia law to hold the arbitration agreement
as unconscionable. On the second appeal to the Eleventh Circuit by SunTrust Banks, the Court of Appeals once again has confirmed the Motion to Compel Arbitration is to be granted. In Re: Checking Account Overdraft Litigation MDL NO. 2036, Jeffrey Buffington et al v. SunTrust Banks Inc. No. 11-14316 (March 1, 2012)
The Plaintiffs filed a claim against SunTrust in a Georgia court claiming breach of contract, conversion of funds and unjust enrichment when SunTrust assessed overdraft fees improperly on their checking account. The claim stated the overdraft fees were a violation of Georgia law. The claim included allegations that SunTrust employed a process that would maximize overdraft fees when in fact the checking account contained sufficient funds.
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General Disclosures by Arbitrator to Parties of Earlier Service on Panels is Sufficient Notice to Trigger Party Objection Obligation Prior to Hearing Taking Place and will not Support Challenge of Evident Partiality Based on a Failure to Disclose Challenge
In a decision decided in the Fifth
Circuit Court of Appeals, the Appellate Court reversed a district court decision vacating the arbitration award based on
a challenge of evident partiality by the panel. Dealer Computer Services, Inc. 11-20053 [5th Cir. 2012]
v. Michael Motor Company, Inc., No.
The parties had a contract for a computer system and maintenance services. A dispute arose that was submitted to an arbitration panel under the terms of an arbitration agreement administered under rules of the American Arbitration Association. The panel rendered an Award that was favorable to DCS and MMC petitioned to vacate the award. Under the parties agreement, each party selected an arbitrator and then the two selected members of the panel selected a third independent arbitrator. The DCS selected arbitrator had made various disclosures prior to the arbitration hearing.
Southern District of New York Spells Out Statutory Standards for Vacatur Under
Section 10 of the FAA provides for four statutory provisions on which arbitration awards can be vacated. [In the Georgia Arbitration Code there are five.] In a recent case challenging an Award on the basis the arbitrator imperfectly executed their powers (See 9 U.S.C. Section 10 (a)(4)), the district court provided explanations for some of the requisite proof need to vacate an award on this basis. Digitelcom, LTD., et al., v. Tele2Sverige, AB Case 1:12-cv- 03082-RJS (S.D. N.Y., July 25, 2012)
In this case between two telecommunications companies operating in Russia, the ICDR arbitration panel dismissed the Plaintiff's breach of contract claims. The Plaintiff then
sought to vacate the arbitration award on several bases including subsection (4) of Section 10 (a) of the FAA. That section provides for vacatur:
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|The Dispute Resolution News is Looking for Articles of Interest|
|The Dispute Resolution News is looking for articles of interest to the Section.
If you would like to submit an article for publication, please email newsletter editor, John Allgood