by Andrew Flake
In last’s week’s post on the Docs of CT, LLC v. Biotek Servs., LLC opinion, we looked at the high bar the Supreme Court set for a party’s post-award challenge to an instance of an arbitrator’s ex parte communication on a merits topic.
To add some historical intrigue to the mix, the Docs of CT case, while indeed one of first impression under the GAA, was not the first time this issue has come before the Supreme Court in the arbitration context generally. Interestingly, it was an 1887 opinion, Wilkins v. Van Winkle, decided at a (much) earlier point under a (much) earlier dispute resolution act in Georgia.
Under the then-prevailing arbitration act, arbitrators had to take a specific oath, including “impartially to determine the matters submitted to them according to law and the justice and equity of the case, without favor or affection to either party.” The arbitrators in Wilkins happened to take a differently worded oath, after which one of the parties supplied the arbitrators post-hearing, and ex parte, with a newspaper containing updated price quotes that bore directly on the dispute.
Even though it did not discern any actual prejudice from the newspaper’s receipt (“[w]hat use was made of it is not known…”), the Supreme Court held that the award should be vacated. The failure to take the proper oath, combined with the fact that “the prevailing party had improper intercourse with the arbitrators and placed in their hands a paper, after the evidence was closed and the arbitrators had secluded themselves for deliberation, and whilst the other party was absent,” supported setting the award aside. The Court held this to be true, even though the trial court had relied on different grounds.
I do not know whether Wilkins was considered or briefed by the parties in Docs of CT, or if it has been, whether it would have impacted what was a predominantly textual analysis under the GAA. It is at least thought-provoking to compare the two.
And if that were not enough content to wring from Docs of CT, a last note of interest: The Supreme Court granted cert and heard argument in the case on yet another issue: “whether an arbitrator violates any ethical rules by communicating with the representative of a corporate entity that is a party to the arbitration if the representative is not a lawyer.” But because of the prejudice holding, which disposed entirely of the appeal, it was not necessary to decide it.
The question here, flagged by the Court but left unresolved, is whether the requirement of 1997’s Eckles v. Atlanta Tech. Group, Inc., that only licensed attorneys may represent corporate entities in a Georgia a court of record, extends in any fashion to arbitration. The Court reserved any ruling on the question, noting only that its prior decisions have not addressed it. In other words, whether by rule or decision, a preview of coming attractions. ABF
[The cases discussed are Docs of CT, LLC v. Biotek Servs., LLC, No. S24G0435 (Ga. May 28, 2025); Eckles v. Atlanta Tech. Group, Inc., 267 Ga. 801, 805 (2) (485 SE2d 22) (1997); and Wilkins v. Van Winkle, 78 Ga. 557, 568-69, 3 S.E. 761, 763 (1887).]