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For a Good Clause – Part I: The Who, What, When, Where, and How of Your Arbitration Agreement

July 28, 2021 – R. David Gallo

In our K&H Arbitration Blog series “For a Good Clause,” we examine arbitration agreements through a variety of lenses to help you draft and select arbitration clauses that meet your business needs.  In this installment, we provide a list of questions that you can use to better craft and understand your arbitration agreement.

You have some real power to determine the contours of your arbitration.  Legally and practically, this power is most potent when you are drafting your arbitration agreement.  Take the time to discuss with your counterparties during contract negotiations what it will look like if the parties end up in arbitration.  Whether the parties are drafting an arbitration clause from scratch, making minor modifications to a clause used in an earlier contract, or dropping an off-the-shelf model clause into their contract, they should understand the who, what, when, where, and how of their arbitration agreement.

Who (is submitting to arbitration)?  Typically, your contract will provide that it is the parties to the contract who agree to submit to arbitration, and this aligns with the foundational principle that arbitration is a voluntary process.  Still, many arbitrations get sidetracked by the question of whether a party that did not sign the contract should nevertheless be a party to the arbitration.  This may be because one of the parties is judgment proof and its parent company has deep pockets, or because a third party participated in the performance or alleged breach of the underlying contract.  Consider whether your particular corporate or contractual circumstances call for clarifying the issue of who should–or should not–be arbitrating in connection with your contract.  And if you are selecting a set of institutional rules that will apply to your arbitration, carefully read any provisions regarding joinder of additional parties.  See, e.g., International Chamber of Commerce (“ICC”) Arbitration Rules, Art. 7.  The parties may decide that it is best to strike or modify such rules (as parties are generally permitted to do).

What (do you agree to arbitrate)?  This is often called the “scope” of the arbitration agreement.  Most model clauses contain broad scope language such as: “Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration.”  A broad scope often makes sense, given that the parties rarely know exactly what kind of dispute will later arise.  But you may also decide that you want a clause with a narrow scope, submitting only specific kinds of disputes to arbitration and leaving the rest to the courts.  Whatever you choose, be deliberate.  If you want a narrow scope, spend some time with your attorney determining whether it is actually clear which potential disputes fall inside and outside your clause.  If it is not clear, then clean up your scope language.

When (can a party initiate arbitration)?  As soon as a dispute arises?  Or does a party need to follow any pre-arbitration steps?  These steps may include mediation, or a meeting between officers of each side.  Clauses with these prerequisites are sometimes called “multi-step” clauses.  Pre-arbitration steps can be a great idea if the parties are prepared to take seriously the good faith that is required to make non-binding dispute resolution fruitful.  Or, pre-arbitration steps can be a source of delay and posturing that get in the way of moving your dispute towards a resolution.  If you decide to use a multi-step clause, give some thought to what it means for a party to “comply” with pre-arbitration steps.  An agreement to negotiate may sound nice, but does it have any teeth?

Where (will the arbitration take place)?  You may want your arbitration to take place in a location convenient to your business affairs, or in a location that relates to the performance of the contract.  These are important considerations.  But you should also know that there are meaningful differences among the arbitration laws of different states and countries.  It is worth a conversation with your attorney to determine whether the jurisdiction you believe is the most convenient also presents obstacles to achieving your goals.

How (will the arbitration be administered)?  Will an institution such as the JAMS run your arbitration?  Or will it be “ad hoc,” meaning that the parties largely run the show?  Will you have a single arbitrator or a panel of three?  Each of your choices here involve trade-offs.  Institutional arbitrations come with administrative services that many counsel and parties prefer to outsource, but those services are not free.  Similarly, some prefer the deliberative process of a three-panel tribunal but, of course, all three arbitrators will need to be paid.

These questions do not address every aspect of an agreement to arbitrate, but they should be part of your efforts to ensure that the agreement is a good fit for the parties’ circumstances, needs, and expectations.  The earlier you address these issues, the better.  Once a dispute has arisen, parties may be incentivized to dig in, exploit uncertainty in the arbitration clause, and oppose even common-sense proposals by the other party.

About the author: 

R. David Gallo specializes in business litigation and arbitration.  Prior to moving to Atlanta, David studied under leading arbitration practitioners and scholars at Columbia Law School, practiced litigation and arbitration at two AmLaw 100 firms in New York, and taught arbitration at Fordham Law School.

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Scroll down to meet additional attorneys at Krevolin & Horst with extensive arbitration experience.


The Law Applicable to Your Arbitration in Georgia

July 13, 2021 – R. David Gallo

The answer to your arbitration-related question may depend on the law that applies to the arbitration.  The State of Georgia has an arbitration code—the Georgia Arbitration Code, or “GAC” (O.C.G.A. § 9-9-1 et seq.)—that applies to certain arbitrations and certain arbitration-related issues.  The United States also has an arbitration code—the Federal Arbitration Act, or “FAA” (9 U.S.C. § 1 et seq.)—that may apply alongside, or instead of, the GAC.  While these two sets of laws will often provide the same answer to a particular question, there are areas where these laws diverge.  And even where the codes look similar, it may be that courts have interpreted the respective provisions in such a way that results in incompatible answers to your question.

The basic rule is that the GAC will usually apply when the underlying contract involves Georgia parties and a local commercial relationship in Georgia.  The FAA will usually apply when the underlying contract involves parties from different states and/or subject matter that crosses state lines (i.e., “interstate commerce”).  The U.S. Supreme Court has an expansive view of the FAA’s reach, concluding that it applies to contracts that have even a slight relationship to “interstate commerce.”

Now for an example that illustrates why it matters.  There is an ongoing arbitration, and you are a non-party.  One of the parties in that arbitration sends you a subpoena requesting that you turn over certain relevant documents in your possession.  Do you have to produce the documents?  If the GAC applies to the arbitration, then you probably do.  The GAC provides that “[t]he arbitrators may issue subpoenas for … the production of books, records, documents, and other evidence” and that courts may enforce these subpoenas.  O.C.G.A. § 9-9-9(a).  To date, courts have not provided much guidance on this provision of the GAC, and the safest assumption is that it will be enforced as written.  If, however, the FAA applies to the arbitration, then you likely do not have to produce the documents.  See Managed Care Advisory Grp., LLC v. CIGNA Healthcare, Inc., 939 F.3d 1145 (11th Cir. 2019).  But be careful.  The arbitrator generally has the power under the FAA to compel your appearance as a witness at the arbitration, and can require that you bring the requested documents with you to the hearing.  Therefore, if you believe that refusing to produce the documents may lead to a request that you appear at the arbitration, you may decide to voluntarily turn over the documents.

The issue of applicable law in arbitration is complex.  For any “rules” discussed above, the exceptions and nuances are abundant.  But we hope you now feel better equipped to raise the issue with in-house or outside counsel when drafting an agreement, when a dispute arises, or when a subpoena shows up in your inbox.

About the author: 

R. David Gallo specializes in business litigation and arbitration.  Prior to moving to Atlanta, David studied under leading arbitration practitioners and scholars at Columbia Law School, practiced litigation and arbitration at two AmLaw 100 firms in New York, and taught arbitration at Fordham Law School.

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Scroll down to meet additional attorneys at Krevolin & Horst with extensive arbitration experience.


Welcome to the K&H Arbitration Blog

July 6, 2021 

There is an ever-increasing demand for alternative dispute resolution processes such as arbitration.  The Covid-19 pandemic only accelerated this demand and we do not anticipate that this trend will subside once the world emerges from the pandemic.

This blog is a user-friendly resource for businesses and individuals who find themselves faced with issues involving arbitration.  Perhaps you want to include an arbitration clause in your contract, or you are being asked to sign a contract with an arbitration clause.  Maybe a dispute has arisen and you want to begin arbitration proceedings but you are not sure whether your arbitration clause covers the dispute (hint: it usually does).  Perhaps you received a subpoena for documents in connection with an arbitration in which you are not otherwise involved.  This blog will provide you with answers to simple questions and will help you ask the right questions when confronted with more complex issues.

Among other topics, we will cover how to draft an arbitration clause and what to expect in arbitration proceedings.  We will discuss the differences and similarities among arbitrations governed by Georgia law, federal law, and international law.  We will explore—in layman’s terms, whenever possible—the Georgia Arbitration Code, the Federal Arbitration Act, transnational law, and decisions from Georgia’s state courts, Georgia’s federal district courts, the U.S. Court of Appeals for the Eleventh Circuit, the U.S. Supreme Court, and foreign tribunals.  We will provide toolkits and checklists you can use to navigate everyday arbitration issues.  We will discuss the various contexts and industries in which we have handled arbitration issues for our clients, including:

  • Breach of Contract
  • Closely Held Company Shareholder Disputes
  • Communications
  • Construction
  • Earn Out Disputes
  • Employment
  • Executive Separation/Severance
  • Franchise Disputes
  • Gaming
  • International
  • Mergers and Acquisitions
  • Pharmaceuticals
  • Real Estate
  • Securities
  • Trusts and Estates
  • Vendor/Supplier Disputes
  • Technology
  • Trusts and Estates

We are available and eager to discuss your arbitration issues with you.

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Attorneys at Krevolin & Horst with extensive arbitration experience:

Kana Caplan

404-835-8054

Email Kana

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