Dispute Resolution News
Official Publication of the Atlanta Bar Association Dispute Resolution Section
In This Issue
Upcoming Events
Arbitrator and Not the Courts to Decide Statute Of Limitations Issue
Eleventh Circuit Again Grants Motion to Compel Arbitration
General Disclosures by Arbitrator to Parties of Earlier Service on Panels is Sufficient Notice
Southern District of New York Spells Out Statutory Standards for Vacatur
The Dispute Resolution News is Looking for Articles of Interest
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August 2012
Newsletter Editor: 
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
William Beringer
Cicely Breckenridge
Hala Carey
Terrence L. Croft
William S. Goodman
Daniel E. Gulden
Halsey G. Knapp Jr.
Tanya Tate
Upcoming Events
Mark your calendars for
these upcoming Section Breakfast Meetings 


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. Hendrix

Managing Partner, Arnall Golden Gregory LLP and president of the Atlanta International Arbitration Society
Please register online or return the registration form


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
Counter Claim

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

scales and book

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.
v. Michael Motor Company, Inc.
, No.
11-20053 [5th Cir. 2012]
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
the FAA

mediatorSection 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
typewriter newsThe 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.