GA Code § 9-9-4 (2021)
2021 Georgia Code|Title 9 - Civil Practice|Chapter 9 - Arbitration|Article 1 - General Provisions|Part 1 - Arbitration Code|§ 9-9-4. Application to Court; Venue; Service of Papers; Scope of Court's Consideration; Application for Order of Attachment or Preliminary Injunction

    Any application to the court under this part shall be made to the superior court of the county where venue lies, unless the application is made in a pending court action, in which case it shall be made to the court hearing that action. Subsequent applications shall be made to the court hearing the initial application unless the court otherwise directs.   All applications shall be by motion and shall be heard in the manner provided by law and rule of court for the making or hearing of motions, provided that the motion shall be filed in the same manner as a complaint in a civil action.     Venue for applications to the court shall lie:   In the county where the agreement provides for the arbitration hearing to be held; or   If the hearing has already been held, in the county where it was held; or   In the county where any party resides or does business; or   If there is no county as described in paragraph (1), (2), or (3) of this subsection, in any county.       A demand for arbitration shall be served on the other parties by registered or certified mail or statutory overnight delivery, return receipt requested.   The initial application to the court shall be served on the other parties in the same manner as a complaint under Chapter 11 of this title.   All other papers required to be served by this part shall be served in the same manner as pleadings subsequent to the original complaint and other papers are served under Chapter 11 of this title.     In determining any matter arising under this part, the court shall not consider whether the claim with respect to which arbitration is sought is tenable nor otherwise pass upon the merits of the dispute.   The superior court in the county in which an arbitration is pending, or, if not yet commenced, in a county specified in subsection (b) of this Code section, may entertain an application for an order of attachment or for a preliminary injunction in connection with an arbitrable controversy, but only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without such provisional relief.     (Code 1933, § 7-305, enacted by Ga. L. 1978, p. 2270, § 1; Code 1981, §9-9-84 [repealed]; Code 1981, §9-9-4, as redesignated by Ga. L. 1988, p. 903, § 1; Ga. L. 2000, p. 1589, § 3.)   Editor's notes.   - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.   Law reviews.   - For survey article on construction law, see 60 Mercer L. Rev. 59 (2008).   JUDICIAL DECISIONS   Editor's notes.   - In light of the similarity of the provisions, decisions under former Code Section 9-9-84 are included in the annotations for this Code section.   Venue.    - The state arbitration law, O.C.G.A. § 9-9-1 et seq., due to preemption by the federal arbitration code, 9 U.S.C. § 1 et seq., when interstate commerce is involved, will never be applicable where one party is not from Georgia. Tampa Motel Mgt. Co. v. Stratton of Fla., Inc., 186 Ga. App. 135, 366 S.E.2d 804 (1988).   Limited discovery permitted.    - Even though a confirmation proceeding is not a civil action, the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, governing discovery applies; thus, limited discovery relating to affirmative defenses to confirmation of an arbitration award may be permitted. Hardin Constr. Group, Inc. v. Fuller Enters., Inc., 265 Ga. 770, 462 S.E.2d 130 (1995).   Motion to set aside arbitration award can be brought in pending suit.    - Owners timely moved to set aside an arbitration award on their breach of contract and fraud claims arising out of the construction of a house because they sought to set aside the award in a judicial foreclosure suit concerning the house. Witherington v. Adkins, 271 Ga. App. 837, 610 S.E.2d 561 (2005).   Role of court.    - Pursuant to both O.C.G.A. § 9-9-1 et seq. and the Federal Arbitration Act, 9 U.S.C. § 1 et seq., the trial court properly considered the scope of the arbitrable issues in an employment agreement wherein companies sought to enjoin one of their executives from taking a position with their competitor, both for reasons of potential disclosure of trade secrets and confidential information and due to a non-competition covenant in the employment agreement. Although a court should not pass on the merits of an arbitrable controversy but rather merely determine the arbitrability thereof, pursuant to O.C.G.A. § 9-9-4(d) and (e), the trial court properly found that the non-compete covenant was overly broad and therefore unenforceable, and it was not included in either the temporary restraining order issued against the executive's employment with the competitor or the order compelling arbitration. BellSouth Corp. v. Forsee, 265 Ga. App. 589, 595 S.E.2d 99 (2004).    Because the jurisdictional issues the subcontractor raised could not be resolved until after a de novo examination of whether the parties agreed to arbitrate their dispute, the superior court's order confirming an arbitration award had to be vacated, and the case remanded, and if the court found that the parties agreed to the version of their subcontractor's agreement which contained the choice of forum and arbitration clause, personal jurisdiction and venue were proper and the arbitrator's award was to be confirmed. Panhandle Fire Prot., Inc. v. Batson Cook Co., 288 Ga. App. 194, 653 S.E.2d 802 (2007).   Role of arbitrator.    - Court of Appeals erroneously held that the arbitrator, and not the court, should have decided whether arbitration was barred by res judicata, as: (1) no presumption existed that an arbitrator was in a better position than a court to apply a legal doctrine such as res judicata; (2) the parties did not expressly reserve the issue for arbitration; and (3) there was no presumption under Georgia law that the application of a procedural bar such as res judicata was a matter to be determined exclusively by an arbitrator. Bryan County v. Yates Paving & Grading Co., 281 Ga. 361, 638 S.E.2d 302 (2006).    Arbitration under O.C.G.A. § 9-9-4(d) was properly compelled for debtors' claim for a setoff from amounts due under a note because the parties' agreement contained an arbitration provision, and the setoff claim sought affirmative relief, which arose from the parties' business relationship. Dunaway v. UAP/GA AG. Chem., Inc., 301 Ga. App. 282, 687 S.E.2d 211 (2009), cert. denied, No. S10C0550, 2010 Ga. LEXIS 297 (Ga. 2010).    Arbitrator did not overstep the arbitrator's authority under O.C.G.A. § 9-9-13(b)(3) in denying debtors' claim for a setoff from amounts due under a note because the award reflected the fact that the arbitrator considered the debtors' evidence and produced a definite award. Dunaway v. UAP/GA AG. Chem., Inc., 301 Ga. App. 282, 687 S.E.2d 211 (2009), cert. denied, No. S10C0550, 2010 Ga. LEXIS 297 (Ga. 2010).    Trial court properly granted a former employer's motion to compel arbitration because there was a causal connection between the former employee's claims for defamation, tortious interference with a business expectancy, and lost income and the former employee's employment and termination and the arbitration agreement clearly provided that the agreement applied to any employment-related claims. Wedemeyer v. Gulfstream Aero. Corp., 324 Ga. App. 47, 749 S.E.2d 241 (2013).   Claims not arbitrable.    - Trial court did not err in failing to refer all claims to arbitration in a libel action because the libel and invasion of privacy (false light) claims were not immediate, foreseeable results of the performance of the bill of sale for the purchase of the trailer, which the defendants claimed was stolen, but arose solely and independently from the defendants subsequent advertisements for the return of the trailer and payment of a reward. Cate v. Patterson, 354 Ga. App. 108, 840 S.E.2d 489 (2020).    Cited in Abe Eng'g, Inc. v. Travelers Indem. Co., 210 Ga. App. 551, 436 S.E.2d 754 (1993); Yeremian v. Ellis, 239 Ga. App. 805, 521 S.E.2d 596 (1999); Prince v. Bailey Davis, LLC, 306 Ga. App. 59, 701 S.E.2d 492 (2010).