Authored by attorney Neil S. Lowenstein
An increasingly popular arbitration clause provision is language purporting to waive later challenge to the arbitration award. In a recent decision in Atlanta Flooring Design Centers, Inc. v. R.G. Williams Constr., Inc., 733 S.E.2d 868 (April 2015), the Georgia Court of Appeals held such waiver void and unenforceable.
While that court recognized the general fundamental principle that parties have the right to freely contract, it rationalized that Georgia's arbitration act does not permit such waiver or elimination of right to seek to vacate or modify an arbitrator's award. The court also relied upon federal case law interpreting the Federal Arbitration Act similarly holding.
Virginia's arbitration statutes are similar to those of Georgia and the Federal Arbitration Act. So, would a Virginia court rule similarly? That remains to be seen.
For example, compare the Atlanta Flooring analysis with the Virginia Supreme Court's holdings in Gordonsville Energy v. Virginia Electric and Power Company, 257 Va. 344 (1999) enforcing a contractual provision waiving the right to challenge a contract's liquidated damages provisions. But one can certainly distinguish waiving another contractual provision (in that case for LDs) from a statutory judicial review statute such as applies to an arbitration award
Time, and someone's judicial challenge, will tell.
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