Case Watch: For Arbitrators
Georgia Arbitrators Can Write Awards that Will Withstand Challenge in Court
The Georgia Court of Appeals recently considered a challenge to a superior court’s confirmation of an arbitration award in a dispute involving the parties’ obligations under an agency agreement. The court’s decision in Azordegan v. Ebrahimi, A11A1402 (08/05/11), is important in underlining the requirements for confirming – or vacating – an arbitration award in Georgia. It also offers a sound practice tip for arbitrators when drafting awards.
The arbitration award in Azordegan was filed for confirmation with the superior court. The trial court conducted a hearing and confirmed the order, noting that it reached its ruling “after receiving evidence, argument of counsel and consideration of the entire record.”
On appeal, the appellant claimed that the trial court should have vacated the arbitrator’s award based on O.C.G.A. § 9-9-13 (b)(3) – that is, the arbitrator had overstepped his authority or so imperfectly executed the award that the party’s rights had been prejudiced. The appellant also claimed that the trial court should have vacated the award because the arbitrator had failed to make explicit findings of fact to support the award.
The Court of Appeals, quoting from Humar Properties, LLLP v. Prior Tire Enterprises, 270 Ga. App. 306-307 (2004), set out its standard for confirming an arbitration award:
In deciding whether to confirm or vacate an arbitration award, a trial court’s role is severely curtailed so as not to frustrate the purpose of avoiding litigation. Unless one of the statutory grounds for vacating an award as set forth in O.C.G.A. § 9-9-13(b) is found to exist, a trial court in reviewing an award is bound to confirm it. Moreover ... we will not disturb a trial court’s confirmation of an arbitration award unless the existence of any of the statutory grounds is shown.
found several problems with the challenge. First, it noted that the
appellant had failed to meet its burden on appeal: there was no record;
there was no copy of the agency agreement; and there was no transcript of
evidence filed or any evidence of the issues presented to the arbitrator
as part of the arbitration proceedings. Further, no briefs were made a
part of the appeal, even though the arbitrator’s award noted that each
party had been asked to file post-hearing briefs. The court wrote:
The absence of a transcript precludes review of claims of error committed by the arbitrator , thereby necessitating an affirmance of the [superior] court’s refusal to vacate the arbitration award on [said] grounds.
The appeals also took issue with the appellant’s claim that the arbitrator erred by not including findings of fact to support the award. The court noted that the arbitrator had written in his award that the parties had specifically agreed to seek a “standard” award – one without reasoning, findings of fact, or conclusions of law. Further, the court said, the Georgia Arbitration Code does not require an arbitrator to enter findings of fact or explanations of reasoning. “For that reason,” the court said, “Azordegan has failed to establish that the arbitrator’s execution of his authority was so imperfect that a final and definite award upon the subject matter submitted was not made.”
Practice tip for Georgia arbitrators: Arbitrators are usually not directly involved in the process of confirming or vacating an award. However, in this case the arbitrator indirectly assisted the trial and appellate courts by noting in his written award that the parties had agreed upon a standard form of award and that the arbitrator had asked for and received briefs from the parties on their claims, the issues, and the evidence. It is wise practice for arbitrators to include these types of notations in all written arbitration awards – standard form or otherwise – with the expectation that their awards can be challenged. In Azordegan, the arbitrator’s annotated written award, combined with the appellant’s failure to include any documentary evidence or transcript to support its statutory challenge, enabled the Court of Appeals to quickly and correctly support the trial court’s confirmation of the arbitration award.