# Perini Corp. v. Greate Bay Hotel & Casino, Inc.

> Supreme Court of New Jersey · August 6, 1992 · 129 N.J. 479

URL: https://www.frixlaw.com/law-library/cases/9694583

## Case

- **Full name:** Perini Corporation, a Massachusetts Corporation, Plaintiff-Appellant, v. Greate Bay Hotel & Casino, Inc., T/A Sands Hotel & Casino, Inc., a New Jersey Corporation, Defendant-Respondent
- **Court:** Supreme Court of New Jersey
- **Decided:** August 6, 1992
- **Citations:** 129 N.J. 479; 610 A.2d 364; 1992 N.J. LEXIS 436
- **Precedential status:** Published
- **Opinion:** Concurrence by Wilentz
- **Judges:** Wilentz, Stein
- **Cited by:** 93 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Tretina Printing, Inc. v. Fitzpatrick & Associates, Inc., 135 N.J. 349 (1994).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9694583

## How later opinions describe it (automated extraction)

- holding that “a new business [can recover for lost profits] when they can be proved with reasonable certainty”
- noting that a defendant "is not chargeable for loss that he did not have reason to foresee as a probable result of the breach when the contract was made."
- stating that lost profits fall under the category of consequential damages

## Opinion text

WILENTZ, C.J.,
concurring.
New Jersey’s judiciary was recently given national recognition for its work in the field of complementary dispute resolution — the name used in this state for court-designed alternatives to litigation. The award was given by the Center for Public Resources for our statewide plan for a comprehensive justice center in every county, designed to make alternatives to litigation available for the resolution of disputes. See Center for Public Resources, Press Release (January 23, 1992) at 1. New Jersey’s judiciary deserves no praise, however, for its treatment of the most effective and most extensively used alternative to litigation — commercial arbitration. Unfortunately, as the record in this case demonstrates, our judiciary’s modern history of anti-arbitration bias continues.
In New Jersey, instead of ending the dispute, the arbitration award is just the beginning; in this state, arbitration is not an alternative to litigation but rather the first step of the lawsuit. The parties in this arbitration went through sixty-four days of hearings, involving twenty-one witnesses, resulting in 10,978 pages of transcripts before the arbitrators issued the award that was supposed to end their dispute. Instead, what followed was three-and-a-half years of litigation, first at the trial level, then before the Appellate Division, and now before this Court. The arbitration produced one decision that could fit on two pages. The litigation has produced five judicial opinions, excluding this concurrence, totaling over one hundred fifty pages. The litigation has also produced finality, with this Court’s decision today, some three-and-a-half years after the date when arbitration should have produced the same finality. Those three-and-a-half years were spent trying to ensure that the arbitrators’ award conformed to New Jersey law despite the *519 fact that the arbitration agreement contained no such requirement. Indeed, the arbitrators were expressly authorized to grant any remedy or relief that was “just and equitable.”
The Court’s opinion today follows our clear precedents, indeed it attempts to improve them. The problem is that those precedents are wrong. They should be overruled. Their effect is to convert arbitration into litigation by subjecting it to judicial review to see if the arbitrators made legal errors — just as if the arbitrators were judges and the arbitration a lawsuit. We need a new rule, one that is true to our arbitration statute. Arbitration awards should be what they were always intended to be: final, not subject to judicial review absent fraud, corruption, or similar wrongdoing on the part of the arbitrators. Parties who choose arbitration should not be put through a litigation wringer. Whether the arbitrators commit errors of law or errors of fact should be totally irrelevant. The only questions are: were the arbitrators honest, and did they stay within the bounds of the arbitration agreement?
People generally choose arbitration for many reasons: speed, economy, and finality. They trust the process and they trust the arbitrators. Whatever the combination of reasons, the bottom line is the same: they choose arbitration because they do not want litigation. They simply do not want the courts to have anything to do with it. When parties choose arbitration, the role that the judiciary should aim at is to have no role at all. Instead, implicit in our treatment of arbitration has been the notion that justice cannot be assured outside of the courts. It is a notion totally at war with the basic intent of those who submit their disputes to arbitrators. They too want justice, but they look solely to the arbitrators and to the process of arbitration to achieve it. That is their right, and the courts have no right to take it away from them.
Will they get better justice from them? That is not for us to decide. That’s their decision to make, theirs alone. When knowledgeable people, experienced in business, decide that they *520 want arbitrators rather than judges, that they want arbitrators familiar with their business and its customs, arbitrators just as experienced as they are, rather than judges who may have no business experience at all, when they tell us that brand of justice is better for them than ours, we have absolutely no right to tell them that they are wrong.
• In advocating that our precedents in this field be overruled, this concurrence seeks nothing radical. New Jersey is not in the majority of jurisdictions with its rule of judicial review of arbitration awards to assure their conformance with state law. If we overrule these precedents, we will join those states that accord finality in fact to the awards of arbitrators. We will abolish a rule and a judicial review that is inconsistent with our statute, with sound public policy, and with the intent of the parties.
I
“Undue Means”
Our state’s modern tradition of overly-intrusive review of arbitration awards apparently has its origin in Held v. Comfort Bus, Inc., 136 N.J.L. 640 , 57 A.2d 20 (Sup.Ct.1948). There Justice Heher explained that “undue means” — one of the statutory bases for vacating an award — is found when the arbitrator intends to decide according to the law but “clearly” mistakes the legal rule, and when “the mistake appears on the face of the award or by the statement of the arbitrator * * Id. at 641-42 , 57 A. 2d 20 . Both prongs must be met, because mistakes of law, as Justice Heher explained, should ordinarily not affect the outcome “unless there is a resulting failure of intent or the error is so gross as to suggest fraud or misconduct.” Id.; see also Bell v. Price, 22 N.J.L. 578 (E. & A. 1849) (finding that “[i]f arbitrators mean to decide according to the law, but mistake the rule in some palpable and material point, * * * the award will be set aside as not conformable to their real judgment and intention”); Collingswood Hosiery Mills v. Ameri *521 can Fed’n of Hosiery Workers, 31 N.J.Super. 466 , 107 A. 2d 43 (App.Div.1954) (noting mistakes of law reversible only when the “result does not conform to the real judgment of the arbitrators”).
. Held stands in stark contrast with decisions in our earlier history. The earliest arbitration decisions, which were among the first reported decisions of our state’s courts, firmly established the rule that arbitration awards would, with few exceptions, be upheld by the courts. See James B. Boskey, A History of Commercial Arbitration in New Jersey, Part I, 8 Rut.-Cam.L.J. 1, 7 (1976) [hereinafter Arbitration in New Jersey, Part /]. As Chief Justice Kinsey wrote in Moore v. Ewing & Bowen, 1 N.J.L. 167, 169 (Sup.Ct.1792):
I own that I am a great friend to arbitrations; I believe them to be frequently productive of real advantage, and they are not to be hastily or inconsiderably set aside. I approve, in the highest manner, of the liberality with which courts of justice have reviewed their proceedings, particularly in modem times * * *.
• Historically, prejudice and misconduct on the part of the arbitrators were the only bases on which courts would void arbitration awards. See Arbitration in New Jersey, Part I, supra, at 7. Generally, although modern arbitration legislation does allow limited grounds for vacating an arbitration award, it is well established that an award will not be set aside or vacated for mistakes of law. American Arbitration Ass’n General Counsel’s Annual Report, Arbitration and the Law 1987-88 32 (1988). In fact, early New Jersey cases explicitly held that mistakes of law would not serve to invalidate arbitration awards. E.g., Leslie v. Leslie, 50 N.J.Eq. 103, 107-08 (Ch.1892); Ruckman v. Ransom, 23 N.J.Eq. 118, 120 (Ch.1872); Smith v. Minor, 1 N.J.L. 19 (Sup.Ct.1790). Those cases recognized that arbitrators are
the chosen judges of the parties, they are judges of the law as well as of the facts, and are not bound to award on mere dry principles of law, but may do so according to the principles of equity and good conscience. Nor will courts * * * disturb their decisions when made, except upon very cogent reasons.
[Ruckman, supra, 23 N.J.Eq. at 120.]
*522 The arbitrator’s overriding duty is not strict allegiance to points of law, but the goal of producing a fair and just decision.
So long as he acts uprightly and impartially, and keeps within the limits of his authority, and deprives neither party of a full and fair hearing, [the arbitrator’s] judgments are unimpeachable and irreversible. He may do what no other judge has a right to do; he may intentionally decide contrary to law and still have his judgment stand. [Leslie, supra, 50 N.J.Eq. at 107.]
The approach permitting judicial reversals for mistakes of law grew out of what was meant to be a minor exception to these otherwise firm rules against judicial intervention in the arbitration process.
[I]f arbitrators mean to decide according to law but mistake the law, in a material respect, and their mistake appears on the face of the award, or they admit it, the award will be set aside because it does not express their real judgment; but in cases where they do not intend to let the law govern their judgment, but to decide according to their own notions of what is just and right, the courts will not interfere, but allow their award to stand. [Id. at 108.]
Unfortunately, following Held , courts have broadened this otherwise narrow “mistake of law” exception, leading to a steady deterioration of the deference which should be paid to arbitration decisions. This erosion apparently began with Brooks v. Pennsylvania Manufacturers’ Ass’n Insurance Co., 121 N.J.Super. 51 , 296 A. 2d 72 (App.Div.1972), modified on other grounds, 62 N.J. 583 , 303 A.2d 884 (1973). In Brooks, the court upheld a trial court’s modification of an arbitration award because it was convinced that the arbitrator had “intended to decide [the] case in accordance with applicable law” and then had made a mistake of law. 121 N.J.Super. at 55 , 296 A. 2d 72 . There was no showing that the mistake of law was so gross as to infect the award and make it unrepresentative of the arbitrator’s real judgment; nor was the mistake even shown to be obvious or apparent “on the face of the award.” In fact, the Brooks court ignored the second prong of Held altogether, and held that mere mistakes of law, without more, are a valid basis for reversing arbitration awards. Ibid.
Subsequent cases, relying on Brooks, have compounded the error, and have opened the floodgates for judicial review of arbitration awards. E.g., Selected Risks Ins. Co. v. Allstate *523 Ins. Co., 179 N.J.Super. 444, 451 , 432 A.2d 544 (App.Div.) (holding that “arbitrators’ award will be vacated if * * * mistaken as to applicable law”), certif. denied, 88 N.J. 489 , 443 A.2d 705 (1981); Ukrainian Nat’l Urban Renewal Corp. v. Joseph L. Muscarelle, Inc., 151 N.J.Super. 386, 400-01 , 376 A.2d 1299 (App.Div.) (finding that Brooks creates presumption that arbitrator will follow “the rule of law” and that award may be reversed on a mere showing, without anything more, of a mistake of law), certif. denied, 75 N.J. 529 , 384 A.2d 509 (1977); Harris v. Security Ins. Group, 140 N.J.Super. 10, 14-15 , 354 A.2d 704 (App.Div.1976) (ruling that where arbitrator intends to follow law and makes mistake, court may reverse); Harsen v. Board of Educ., 132 N.J.Super. 365, 372 , 333 A.2d 580 (Law Div.1975) (noting that Brooks changed settled law, and holding that
where no affirmative indication exists that the arbitrator was not utilizing the applicable law, or attempting to, and the legal question is res nova in this State, the court reviewing the award is to entertain and decide the merits of the legal question involved and evaluate the award’s legitimacy against the resolution thereof).
Until today, our Court had not directly addressed this issue. While it is true that in Brooks this Court modified the Appellate Division judgment, it did not address the propriety of the lower court’s mistake-of-law exception. The same is true for our reversal in In re Arbitration Between Grover and Universal Underwriters Insurance Co., 80 N.J. 221 , 403 A.2d 448 (1979). The only decision of this Court that could be interpreted as equating a mistake of law with undue means is Perez v. American Bankers Insurance Co., 81 N.J. 415, 420 , 409 A.2d 269 (1979), in which the Court hinted that a mistake of law might have been made, but instead found that the arbitrator had made contradictory findings rendering the award invalid as having been procured by undue means. The propriety of the exception was not addressed. Nonetheless, to the extent that Perez embraces the mistake-of-law exception found in Brooks and subsequent cases, it should be overruled. Cf. Faherty v. Faherty, 97 N.J. 99, 112-13 , 477 A.2d 1257 (1984) (vacating *524 award because arbitrator exceeded his power when, despite parties’ agreement to follow New Jersey law, arbitrator granted wife alimony after remarriage).
Although other policy reasons may compel a different result for public sector arbitration, the matter before us falls within the private sector, and we therefore do not address the desirability of a mistake-of-law exception for public sector arbitration. See Communication Workers of Am. v. Monmouth County Bd. of Social Seros., 96 N.J. 442, 450-51 , 476 A.2d 777 (1984); Kearney PBA Local #21 v. Town of Kearney, 81 N.J. 208, 217 , 405 A.2d 393 (1979). Nor do we deal with special policy reasons which may have led this Court to note that heightened judicial scrutiny may be required in reviewing arbitration awards affecting child support and custody. Faherty, supra, 97 N.J. at 110 , 477 A.2d 1257 .
II
Other Jurisdictions
According to the plurality, an arbitrator’s “determination of a legal issue” is to be sustained if it is “reasonably debatable.” Ante at 493, 610 A.2d at 371. Determining whether such an arbitrator’s legal conclusion is “reasonably debatable” is a three-step process:
the arbitrators (1) clearly must have intended to decide according to law; (2) must have clearly mistaken the legal rule and that mistake must appear on the face of the award; and (3) the error, to be fatal, must result in a failure of intent or be so gross as to suggest fraud or misconduct. [Ante at 493-495, 610 A.2d at 371-372.]
Contrary to the plurality’s assertion that it is in the mainstream, ante at 494, 610 A.2d at 371, the vast majority of jurisdictions have not adopted standards of review as permissive as the three-step process described above. The New York Court of Appeals has expressly stated that “[ajbsent provision to the contrary in the arbitration agreement, arbitrators are not bound by principles of substantive law * * *.” Lentine v. Fundaro, 29 N.Y.2d 382 , 328 N.Y.S.2d 418, 420 , 278 N.E.2d 633, 635 (1972) (citations omitted). That the arbitrators intended to decide according to law and may have mistaken the law is *525 irrelevant; an award will not be vacated even if the arbitrator “misapplies substantive rules of law.” In re Arbitration between Silverman & Benmor Coats, Inc., 61 N.Y.2d 299 , 473 N.Y.S.2d 774 , 461 N.E.2d 1261,1266 (1984) (cited by the plurality, ante at 494, 610 A.2d at 371). Simply put, unless the parties expressly state otherwise in their arbitration agreement, mistakes of law do not serve as a valid basis for judicial review, regardless of the arbitrator’s intent or any error produced by a failure of that intent. Lentine, supra, 328 N. Y.S.2d at 420, 278 N.E.2d at 635 .
In Pacific Gas & Electric Co. v. Superior Court, 234 Cal.App.3d 428 , 277 Cal.Rptr. 694 , 712 (Ct.App.), review granted, 281 Cal.Rptr. 765 , 810 P.2d 997 (1991), the court set forth the general rule that errors of law, even those appearing on the face of an arbitration award, do not justify overturning that award. Instead, only “utterly irrational” legal conclusions will be cognizable; “[i]n these circumstances the appropriate standard of review is whether the construction of the contract presents such an egregious mistake that it amounts to an arbitrary remaking of the contract between the parties.” 277 Cal.Rptr. at 714.
Other jurisdictions have applied stricter standards for upsetting an award than that adopted by the plurality. E.g., Department of Parks & Tourism v. Resort Managers, Inc., 294 Ark. 255 , 743 S.W.2d 389, 391-92 (1988) (reviewing Uniform Arbitration Act and holding mistakes of law insufficient to overturn an award absent fraud or corruption); Jackson Trak Group, Inc. v. Mid States Port Auth., 242 Kan. 683 , 751 P.2d 122, 127 (1988) (holding that errors of law, without accompanying fraud or misconduct, not enough to set aside arbitration award); Runewicz v. Keystone Ins. Co., 476 Pa. 456 , 383 A.2d 189,191-92 (1978) (recognizing general rule that arbitrators’ mistakes of law not grounds for vacating award absent “showing of denial of a hearing, fraud, misconduct, corruption, or similar irregularity leading to an unjust, inequitable, or unconscionable award”); Bailey & Williams v. Westfall, 727 S.W.2d 86, 90 (Tex.Ct.App.1987) (stating that not every error of law warrants setting aside *526 an arbitration award, but “only those errors which result in a fraud or some great and manifest wrong and injustice”).
The plurality’s result also conflicts with federal cases analyzing the Federal Arbitration Act. To the extent that federal precedent permits the upsetting of an award because of a “mistake of law,” it is an extremely narrow exception to the otherwise strong federal policy against reviewing arbitration awards. United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U.S. 574 , 80 S.Ct. 1347 , 4 L.Ed.2d 1409 (1960).
Apparently, the federal “manifest disregard of the law” exception, cited by the plurality, ante at 495-497, 610 A.2d at 371-373, has its roots in Wilko v. Swan, 346 U.S. 427 , 74 S. Ct. 182 , 98 L.Ed. 168 (1953), in which the Court, in dicta, hinted that “it may be true” that the arbitrator’s failure to decide according to applicable statutory law would constitute grounds for vacating the award under the Federal Arbitration Act. Id. at 436 , 74 S.Ct. at 187 , 98 L.Ed. at 176 . Nonetheless, the Court stressed that “[i]n unrestricted submissions * * * the interpretation of the law by the arbitrators in contrast to manifest disregard are not subject, in the federal courts, to judicial review for error in interpretation.” Id. at 436-37 , 74 S.Ct. at 187 , 98 L.Ed. at 176 . In other words, when the parties submit the “law” to the arbitrators as the basis for resolving their dispute, “manifest disregard” of that law will justify judicial reversal of the award; however, when the submission is unrestricted, the longstanding federal policy that “[i]f the award is within the submission * * * a court of equity will not set it aside for error either in law or fact” will apply. Burchell v. Marsh, 58 U.S. (17 How.) 344 , 15 L.Ed. 96, 99 (1855); see Wilko, supra, 346 U.S. at 437 n. 24, 74 S.Ct. at 188 n. 24, 98 L.Ed. at 176 n. 24.
While “manifest disregard” has evolved into an exception, at least two federal circuits have declined to adopt it. Robbins v. Day, 954 F.2d 679, 683-84 (11th Cir.1992); Marshall v. Green Giant Co., 942 F.2d 539, 550 (8th Cir.1991); O.R. Sec., Inc. v. Professional Planning Assocs., Inc., 857 F.2d 742, 747 (11th *527 Cir.1988). Even among those circuits that have recognized such a ground, however, there has been difficulty in drawing a clear-cut distinction between a mere “mistake of law,” which is not a ground for disturbing an award, and a “manifest disregard of the law.” Martin Domke, The Law & Practice of Commercial Arbitration § 25.05, at 261-62 (1968). A manifest disregard of the law will “rarely occur in practice.” Id. at 262.
These cases confirm that New Jersey is not in the majority in its approach to reviewing arbitration awards. If that is not obvious from the above comparison of the standards of review, it becomes clear on examining the plurality’s application of its own standard. The arbitrators here are judged not as experts in the construction industry seeking an equitable solution, but rather as learned jurists applying intricate issues of law. See ante at 497-516, 610 A.2d at 373-383. This result clearly conflicts with the underlying goals and strengths of arbitration.
The history of legal rules, like the rules themselves, is neither precise nor certain. The historical pattern in this instance, however, is reasonably clear. Until 1948, New Jersey generally accorded finality to arbitration awards regardless of mistakes of law; following Held , however, we have, under a variety of rule formulations, imposed judicial review of arbitration under standards that allow vacation of awards for errors of law, although the scope of the review and the extent of the error is far from clear. At the same time, most of the country has eschewed this approach, adhering to the earlier rule of our state that absent fraud, corruption, or other similar wrongdoing, an arbitrator’s award will be upheld regardless of any such errors.
Ill
The Plurality’s Rule: Unworkable and Unjustifiable
The justification in Held and subsequent cases for the present rule of judicial review and vacation of arbitration *528 awards for “gross legal errors” is that such awards fail to effect the intent of the arbitrators. E.g., Held, supra, 136 N.J.L. at 642 , 57 A.2d 20 (stating that a mistake of law is not fatal “unless there is a resulting failure of intent”). The rule is expressed as authorizing vacation of the award only if the arbitrators intended to decide in accordance with New Jersey law and then only if they clearly failed to do so. Collingswood Hosiery Mills, supra, 31 N.J.Super. at 469 , 107 A.2d 43 . We have made the rule applicable to practically all arbitration awards through the presumption that in the absence of any agreement to the contrary, the arbitrators intended to apply New Jersey law. See In re Arbitration Between Grover and Universal Underwriters Ins. Co., supra, 80 N.J. at 231 , 403 A.2d 448 (concluding that arbitration award was invalid and applying New Jersey law to remedy award); Ukrainian Nat’l Urban Renewal Corp., supra, 151 N.J.Super. at 400 , 376 A.2d 1299 (noting that arbitrators are presumed to intend to apply New Jersey law). Since parties practically never express any intention whatsoever on this subject in their arbitration agreements, their true intent being that the arbitrators will decide what is just and equitable without regard to any state law, it is rare that there is any “agreement to the contrary,” indeed, rare that there is any agreement at all that mentions state law.
The flaws in the current rule are obvious. Presumably the touchstone of the rule is whether the award truly reflects the arbitrators’ intent. If, however, the arbitrators did indeed intend to decide in accordance with law, they probably intended only to exercise their best judgment and knowledge in resolving the legal issues without at all intending to have their award fail if some judge later says they erred. More than that, if their intent was that their award should have validity only if decided in accordance with New Jersey law, it is unlikely that they would want it to fail only if they were grossly mistaken, their failure of intent being not one whit less when it is debatable. In both cases there is precisely the same failure of intent: they intended to decide in accordance with New Jersey law and they *529 did not. In that regard their failure of intent is no different from that of a trial judge whose learned, persuasive, and reasonably debatable decision is reversed by this Court: he intended to follow the law but he did not.
The incorrectness of the analysis on this point by the plurality, and by our prior cases, goes deeper; indeed, it goes to the heart of the problem. The issue is not what the arbitrators intended and whether or not their decision reflected that intent, but rather what the parties intended to commit to arbitration and what they intended to subject to judicial review. See Kearney Pba Local No. 21, supra, 81 N.J. at 217, 405 A.d 393 (stating that source of arbitrator’s power is the agreement and that arbitrator must comply with the authority the parties have given him or her in the agreement). If the parties intended the arbitrators’ decision to be final and not subject to judicial review — so long as it was honest — it matters not whether the arbitrators intended or did not intend to decide in accordance with New Jersey law or that, if they did, whether they erred. Ibid, (stating that “parties may authorize the arbitrator to determine legal issues as he deems fit irrespective of whether those determinations are in accordance with the law”). All of those questions of “arbitrators’ mistakes” and “failure of intent” are subsumed in the critical question: what judicial review, if any, did the parties intend, or expressed differently, did the parties want the arbitrators’ award to be vacated because of such alleged “failure of intent?” It would indeed be strange if they did, strange if their affinity for New Jersey law was so strong that, despite their selection of arbitrators in place of the judiciary, they would declare the arbitration a nullity for gross errors in such law, yet be content with the most prejudicial errors of law just so long as they were debatable.
The analysis that examines the arbitrators’ intent is totally irrelevant if the correct rule is that the parties are legally free to completely insulate the arbitrators’ decision. I believe they are, indeed, I believe the statute itself achieves that result. *530 Review based on errors of New Jersey law, or any law, is justified only if the parties so intended. That intent is so unlikely, so opposite to the ultimate goal of arbitration, as to require its explicit expression in order to justify such consequences. A similar analysis would apply to errors of fact.
A further reason given to justify the “gross error of law” rule is that it significantly diminishes what would otherwise be excessive judicial intrusion into the arbitration process. Ante at 494, 610 A.2d at 371. In other words, it is justified by comparing it with a straw man — comparing it with a system that would allow judicial review and vacation of the award if any legal error was committed. Obviously, that reasoning is correct, if that is the only comparison that can be made— certainly the present rule, no matter how bad, is better than one that would vacate arbitration awards for any error of law. The “gross error” rule, however, is fundamentally unworkable. Try as it may, the plurality finds it exceedingly difficult to define what is meant by a “gross error of law.” See ante at 515-516, 610 A.2d at 382-383. Its praiseworthy attempt to do so simply underlines the difficulty of the task, and its result is an unfortunate plethora of inconsistent formulations that because of the nature of the matter provide less than helpful guidance. The rule purports to distinguish legally erroneous arbitration decisions which will be sustained, from grossly, or clearly, or indubitably, erroneous arbitration decisions which will not. Judges are not adept at making such distinctions. Indeed in this case itself, three judges conclude that there is no gross error and sustain the award, while two others, convinced of the enormity of the arbitrators’ legal mistake, would not simply vacate the award but would replace it with their own, a substitute that reduces the original by over four-and-a-half million dollars. See ante at 524-525, 610 A.2d at 387.
Judges sometimes experience considerable difficulty in deciding what is wrong; our uncertainty would escalate were we required to decide what is very wrong. The concept of degrees of legal wrongness is foreign to us, it is not our stock-in-trade. *531 Certainly, in some cases where legal error is asserted, courts are quite capable not only of recognizing. the error, but of characterizing it as, for example, either gross or debatable. Unfortunately, however, there are many cases, as here, where that distinction is not easily made. We sometimes characterize those who disagree with us in terms that suggest their errors are flagrant, not just gross, including the errors of our colleagues when we split four-to-three. And when we unanimously conclude the trial court was wrong, we often suggest the question was not only debatable but extremely close. Indeed, it is rare that the characterization makes any difference. What counts is whether the error was prejudicial, not whether it was clear, gross, or close. Furthermore, in most cases we have no standard other than the strength of our own convictions for whether an error is clear. Often it is not at all clear to one Justice that there is an error, while three others are convinced the error is crystal clear, and the other three convinced that beyond doubt there was no error. If you add to these difficulties concerning legal error those that will face judges trying to characterize factual error, the picture of an unworkable system of judicial review of arbitration awards is clearer.
When the justification offered for the rule is that it minimizes judicial interference with arbitration (as distinguished from the “failure of intent” justification), a different analysis demonstrates not only its unworkability but it failure to achieve its implicit goal: to give the parties the presumed benefit of New Jersey law and the benefit of a decision that conforms to that law. Otherwise why have any such rule in the first place? But if that is the purpose of the rule, why then should we deprive those who lose their rights through the arbitrators’ legal error of a remedy, just because the error is not crystal clear?
In all appeals of all litigants before us where we reverse for legal error, we do so in order to give them their legal rights. I can recall no case in which we said the appellant is right, the judge was wrong, the error is prejudicial, but we will not reverse because the judge was not grossly wrong. What *532 justification is there to allow some arbitrary number of legally-incorrect arbitrators’ decisions to stand, but vacate a lesser number because the legal errors are gross? If fairness and justice are uniquely found in New Jersey law, we have devised a rule that assures injustice to the majority, a rule we- would never apply to litigants in the courts.
Obviously, the rule, when diminished judicial review is given as the justification, represents a balance between one’s sense of justice — assuming one believes that only New Jersey law brings justice — and one’s sense of the need for finality in arbitration. The irony in relegating those whose rights have been defeated by legal error to no remedy, while vindicating others when the error was gross, is that the former may have been much more grievously damaged by the error. None of the cases suggests that “gross error” relates to anything other than the extent the error departs from the correct rule; put differently, none of the cases suggests that the “grossness” is measured by the ultimate impact on the parties.
Given diminished judicial interference as the justification for the rule, I believe that the balance struck is wrong. If, in order to protect arbitration from judicial review, we are willing to sustain legally erroneous awards that are debatable, we should sustain even those relatively few that are clearly legally erroneous.
Even the admitted benefit of the “gross error” rule, beneficial only when measured against the even worse rule of unrestricted review and not a benefit at all when measured against what I contend is the correct rule, is minimal, indeed uncertain. If that benefit is thought of as the greater certainty or likelihood of finality, the greater confidence of the parties in the award’s finality, or the shorter period of time that must elapse before the fact of finality is determined, that benefit is seriously diluted. It will be the rare event when any party’s lawyer will predict with confidence the outcome of a case in which one party has appealed to the judiciary from an arbitrator’s award *533 on the ground of “gross legal error.” And it will take just as long to dispose of those cases on appeal as it would if all errors led to vacation of the arbitrator’s award. For every case in which the appellate court quickly finds the error was “undebatable,” there will be many others that require not only the usual effort to determine if there was error at all but also to determine if that error was gross. Inevitably that supposedly pure legal determination — gross error or simple error — will be influenced by a factor not explicitly credited — the overall sense of justice or injustice in the outcome.
Finality in the sense of ultimately sustaining the award may be minimally served by the “gross error” as compared to the “ordinary error” rule, but finality in the sense of getting it over with during one’s lifetime may not be. A dispute will be resolved, in fact and appearance, as is the case here, not by arbitration but by litigation.
The practical difficulty of determining legal error in arbitration awards is formidable. See Advest, Inc. v. McCarthy, 914 F. 2d 6, 10 (1st Cir.1990) (noting that arbitration does not require a record and that without a record parties have little chance of meeting the standard required to vacate an arbitration award). The highly refined distinction between legal error and gross legal error requires the existence of all of the trappings that appellate judges are used to: a stenographic record, a transcript, objections and rulings, applications and requests by counsel prior to, during, and after trial, numerous rulings by the court, often accompanied by opinions, briefs containing factual and legal contentions and detailed argument in support of both, and finally the judgment of the court supported by written findings of fact and conclusions of law. Absent any of these, the identification of legal error becomes even more difficult. Arbitration does not require a record; neither the statute nor, in this case, the applicable rules selected by the parties (Construction Industry Arbitration Eules) requires even a stenographer. Cf. American Arbitration Association Rule 50 (stating that “the cost of the stenographic *534 record, if any is made, and all transcripts thereof, shall be prorated equally between the parties ordering copies”) (emphasis added). To apply the plurality’s rule without such a record would require, at a basic minimum, the re-creation of the proceedings, the evidence, everything — in this case the re-creation of sixty-four days of hearings.
The rule, of course, could be that legal error will not be considered in the absence of a record, but that suggests a double standard and imposes on the parties a cost that they may want to avoid in their pursuit of an allegedly less expensive method of resolving their dispute. The fact that arbitrators do not have to give reasons when they make their rulings, not even reasons for their ultimate decision, compounds the difficulties of identifying legal errors. And if, as I assume is the case, the critical question is not simply whether there was legal error but whether it was prejudicial, confusion is compounded. The “plain error” doctrine (Rule 2:10-2) would likely apply in order to achieve the purposes the doctrine serves in litigation (assuring error-free proceedings by penalizing those who fail to alert the court to error by claiming it). See Barcon Assocs., Inc. v. Tri-County Asphalt Corp., 86 N.J. 179, 195 , 430 A.2d 214 (1981) (stating that should arbitrator make full disclosure, failure to object deemed waiver of any later right to object). Application of both the “harmless error” (Rule 1:7-5) and “plain error” doctrines becomes impossible with no record, and even with a record borders on the impossible if the arbitrator simply refuses to rule on motions. For instance, if an arbitrator, in response to an objection to the introduction of evidence, allows its introduction but refuses to say whether or not he will consider it, explicitly reserving that right, one will never know if the arbitrator erroneously considered the evidence, or if such consideration was prejudicial.
In this case after four years and sixty-four days, the arbitrators simply awarded $14 million to Sands without any explanation whatsoever other than a finding that Perini had “failed to properly perform its obligations as construction manager pur *535 suant to the contract * * There are no reasons, no findings of fact, no conclusions of law, nothing other than the foregoing. For all we know, the arbitrators concluded that the sun rises in the west, the earth is flat, and damages have nothing to do with the intentions of the parties or the foreseeability of the consequences of a breach.
To the extent that it suggests it is sustaining the legal correctness of the arbitrator’s decision, the conclusions of the plurality on the various questions discussed in its opinion, that there was both sufficient evidence to sustain certain findings of fact and sufficient legal authority to warrant certain conclusions of law, is an invention, pure and simple. The arbitrators made absolutely no findings of any kind, factual or legal. If an appellate court faced such a record and was asked to decide whether legal error existed, it would refuse to do so, for it would find the task impossible in the absence of judicial rulings, judicial findings, and judicial conclusions, all with supporting reasoning. Instead, the appellate court would promptly remand the case to the trial court and direct it to make findings of fact and conclusions of law.
Given the possibility of a total absence of any record, and the even more likely possibility of a judgment without findings of fact or conclusions of law, the rule cannot practically be applied at all in a substantial number of cases. The obstacle to recreating the record is obvious, especially in an arbitration that is protracted; difficulties of requiring findings of fact and conclusions of law after the award is rendered is in reality no less formidable. Besides trying to get the arbitrators to meet again, the truth may be that there never were any findings of fact or conclusions of law, there was simply a decision. The impact of these deficiencies on the rule espoused by the plurality is devastating. This analysis applies with equal force to the rule that arbitration awards will be vacated for “gross errors of fact.”
The plurality’s opinion is instructive on the consequences of the search for legal error where no findings of fact or conclu *536 sions of law exist. Those consequences flow inexorably from the logic of the situation — they are not some unusual result of the plurality’s reasoning. The reviewing court is forced to deal with practically every conceivable contention of error claimed by the losing party, forced to try to figure out if there was some way the arbitrators could have reached the conclusion they did when confronted with such a claim of error. It is not enough to do what is ordinarily done on appellate review, namely, to identify the basis for the court’s decision and then rule on it, for we do not know the basis for the arbitrator’s decision. We ask the question, as if it will admit of an answer, whether there was “some evidence” to support the conclusion, whether there was “sufficient evidence” to sustain the award. The question is almost meaningless since we will not know the basis for the arbitrator’s decision. The conclusion that there is “some evidence” or “sufficient evidence” is not one made in the abstract; it relates to the quantum and quality of evidence to support a certain legal theory, to support certain legal conclusions, it relates to the sufficiency of the evidence to make those findings of fact that will support those legal conclusions. If one does not know what the conclusions of law were, and one does not know what the conclusions of fact were, it is, in most cases, impossible to address the question of whether the evidence was sufficient.
IV
The Effect of the Rule
The potential effect of the plurality’s rule is apparent from this case. If the stakes are sufficient, it invites the losing party to attack the arbitration award in court, thereby delaying its finality for unpredictable periods of time, here around three- and-a-half years. Accompanying that consequence is the added cost to the parties, undoubtedly most substantial in this case. I am, unaware of the existence of any statistics in New Jersey concerning the percentage of arbitration cases now appealed. *537 My impression is that appeals from arbitrators’ determinations are not numerous. They do occur, however, and when they result in an opinion of the kind rendered today by the plurality, there must be concern about the substantial impact on the arbitration process. Whatever doubt on the score may have existed before, it is now crystal clear that a party to an arbitration can obtain vacation of an award if able to persuade a court that gross legal error existed. When motivations for delay exist, appeals to the judiciary are encouraged, and, since hope springs eternal in the advocate’s breast, one can expect the number of such appeals to grow. How the Court will rule on the question of recreating a record, or on compelling arbitrators, post-arbitration award, to make findings of fact and conclusions of law I have no idea. But that there will be a further dilution of the effectiveness of arbitration as a remedy I have no doubt. If the bottom line purpose of arbitration is to keep the courts out of one’s disputes, the attractiveness of the remedy is seriously diminished by the plurality opinion. Even if the impact turns out to be minimal — which I doubt — the opinion will have its greatest effect on the cases of the most importance: cases with significant financial or other consequences. Even if a relatively small number, those cases at least will lose the benefits the parties initially sought through arbitration: finality, speed, and certainty. One can imagine a party wondering whether arbitration should even be attempted since arguably the case would have been concluded sooner if it had originally been started with the judiciary.
Finally, the effect of the rule, to a greater or lesser extent, is not only to deprive arbitration awards of their finality, but potentially to deprive the parties of the awards of the arbitrators. For certainly in some instances an arbitration award will be vacated for reasons never intended by the parties. The dissent, however, argues that judicial superintendence is needed; that without it arbitrators’ decisions may be “off the wall.” Post at 556, 610 A.2d at 403. Obviously the potential cost of that point of view, in every arbitration case, is the cost in this *538 case: after three-and-a-half years, three justices conclude that the arbitration award was not off the wall and two disagree. All five, however, continue the bias reflected in our precedents: we have to protect the business community from the arbitrators they have selected, the arbitrators they trust. We must review their decisions to make sure that they have not made a bad mistake; we must protect the business community from the risks of the speed, finality and economy that they sought from arbitration, even if it costs three-and-a-half years of delay and no one knows how much in legal fees. Bluntly, though the businessmen who selected these arbitrators may not know it, we are superior. And in the long run, according to the dissent, the business community will select arbitrators more readily with this rule, they will select arbitrators more readily when they are assured that, if needed, the courts will decide the matter. That’s really why they chose arbitrators — to get the ultimate protection of judges.
Ultimately, the question is whether the effect of the plurality-rule would be reversed were we to impose the rule suggested by this concurrence. Such a rule would insulate arbitration awards from all judicial review in the absence of fraud, corruption, or similar wrongdoing. Quite clearly it would achieve finality, in a way that the plurality’s rule cannot. Recourse to the courts would be almost nonexistent, just as fraud, corruption, or similar wrongdoing is almost nonexistent in arbitration. When there was recourse, summary judgment would be swift and sure if the attempt to gain judicial review lacked substance and was really designed to delay, for it is most difficult to make any showing of fraud or corruption on affidavits unless there is real substance to the claim.
Y
The Rule’s Conformance, or Non-Conformance, to Public Policy, Statute, and the Parties’ Intent
For the purposes of this case, this opinion has already adequately treated the question of public policy. There is no public *539 policy of this state supporting the notion that arbitration would be better served by judicial review of arbitration awards to see if they conform to New Jersey law. The public policy of this state supports arbitration as a method of resolving disputes. See N.J.S.A. 2A:24-1 to -11. It does so because of the speed, economy, and finality of arbitration and arbitration awards. See Barcon Assocs., supra, 86 N.J. at 187 , 430 A.2d 214 . Unfortunately, the plurality’s rule dilutes each one of those three factors to some extent. .
The significance of the public policy favoring arbitration has been heightened in fact and in public perception in recent years as we understand the cost of litigation, not only to the parties but to society. See Pacific Gas & Elec., supra, 277 Cal.Rptr. at 712 (stating that “[t]he judicial process grinds exceedingly fine as to questions of law. * * * A principle reason for selecting arbitration is that the costs of using [these] exceedingly fine wheels are thought not worth the additional assurance afforded by the judicial process”).
Every alternative to litigation must be examined, pursued, and enhanced, and if there is any alternative that has proven itself, it is commercial arbitration. The import of the plurality’s opinion goes beyond commercial arbitration, but it is sufficient for public policy purposes tp note its potentially serious impact in that area. With annual case filings now over a million per year, having increased more than fifty percent in the last ten years, and with delay in civil litigation approaching catastrophic proportions, we need to reinforce arbitration as an effective remedy, as it was intended to be. We need no rule now imposing judicial restraint on arbitrators, but rather one that imposes restraint on the judiciary.
Perhaps the best demonstration of the failure of the rule adopted by the plurality — and by our prior precedents — to conform to the statute is the statute itself. N.J.S.A. 2A:24-8 and -9 provide as follows:
The court shall vacate the award in any of the following cases:
*540 a. Where the award was procured by corruption, fraud or undue means;
b. Where there was either evident partiality or corruption in the arbitrators, or any thereof;
c. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause being shown therefor, or in refusing to hear evidence, pertinent and material to the controversy, or of any other misbehaviors prejudicial to the rights of any party;
d. Where the arbitrators exceeded or so imperfectly executed their powers that a mutual, final and definite award upon the subject matter submitted was not made.
When an award is vacated and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators. [N.J.S.A. 2A:24-8.]
The court shall modify or correct the award in any of the following cases:
a. Where there was an evident miscalculation of figures or an evident mistake in the description of a person, thing or property referred to therein;
b. Where the arbitrators awarded upon a matter not submitted to them unless it affects the merit of the decision upon the matter submitted; and
c. Where the award is imperfect in a matter of form not affecting the merits of the controversy.
The court shall modify and correct the award, to effect the intent thereof and promote justice between the parties. [N.J.S.A. 2A:24-9.]
By any fair reading, section 8a, the source of the “undue means” rule, defies the plurality’s construction. The idea that “corruption, fraud or undue means” could be converted into a rule that reverses awards for errors of law would be unthinkable if viewed anew. More persuasive than subsection a, however, is the thrust of that entire section. It refers to those cases that will result in the arbitration award being vacated, not changed, not corrected, but rejected. As defined by the statute, they are cases with deficiencies that go to the heart of the integrity of any dispute-resolution process, whether arbitration or judicial.
The first two subsections deal with partiality, corruption, fraud, or similar wrongdoing; their significance is self-evident. N.J.S.A. 2A:24-8a to -8b. The third subsection deals with the deprivation of a fair hearing, so grievous as to be characterized not as a mistake but as “misconduct” — refusing to postpone a hearing, refusing to hear evidence, or any other “misbehaviors” prejudicial to the rights of any party. N.J.S.A. 2A:24-8c. The *541 fourth subsection deals with an arbitration award that is so unresponsive to what was submitted by the parties that it could not even be considered “mutual, final, and definite.” N.J.S.A. 2A:24-8d.
It is simply impossible by any fair reading to square these clauses and their unique consequence — vacation of the award— with the notion that the same consequence should follow because someone made a mistake of law, or an error of fact. The statute does not provide for a remand back to the original arbitrators to correct the error; indeed, there is not even a referral back to start all over again. The matter is over, complete, any further proceedings totally dependent on the will of the parties. It may even be that the agreement to arbitrate is of no further force and effect once the initial arbitration award has been vacated.
That conclusion — and more — is underlined and emphasized by section 9, which authorizes the court to “modify or correct the award” — not vacate it, in certain limited cases. N.J.S.A. 2A:24-9. The most obvious consequence of sections 8 and 9 is their implicit limitation on the power of courts when “undue means” is asserted: the court is powerless to “modify or correct the award,” given the clear distinction between the vacation of the award authorized by section 8 and the modification or correction authorized by section 9. More than that, some idea of the extreme limitation intended by the statute on judicial review is suggested by section 9. You can “modify or correct” not for errors of fact, or gross errors of fact, but only “where there was an evident miscalculation of figures, or an evident mistake in the description of a person, thing, or property referred to therein.” N.J.S.A. 2A:24-9a (emphasis added). The difference between that extremely limited scope of mistake allowing only for modification, and the notion that an award can be vacated for gross errors of any fact is obvious.
The second case in which modification or correction is allowed occurs when the “arbitrators awarded upon a matter not sub *542 mitted to them unless it affects the merit of the decision upon the matter submitted.” N.J.S.A. 2A:24-9b. In other words, when arbitrators decide something that no one asked them to decide, unless they had to do so in order to decide that which was submitted, the modification or correction would presumably be the excision of that matter from the award. The last subsection, finally, allows for the modification or correction of matters of form. N.J.S.A. 2A:24-9c.
The two sections put together persuade me not only that “undue means” has nothing to do with errors of law but that the scope of judicial review was intended by the Legislature to be extremely narrow. Section 9, concerning modification or correction of awards based on factual errors, is extremely limited. Therefore, the only tenable conclusion from the statute itself is that errors of fact, whether gross or ordinary, lead to neither vacation nor modification and correction. More to the point in this case, there is no mention whatsoever of errors of law. The statute provides no remedy whatsoever for that alleged mistake.
The rule of our precedents caught at least some part of the spirit of the present statute: the “errors of law”- had to be so egregious that one need only look at the cover page, at the award, to know that a horrible mistake had been made. It should take you no more than a minute to know that the arbitration award had to be vacated. While not strictly analogous, it suggests a deficiency similar to those in section 8, something so horrible that without getting involved at all with the merits of the proceeding, with the thousands of pages of transcripts that we have in this case, one could say that there was fraud or corruption or some similar wrongdoing that requires vacating the arbitrators’ award.
The rule of the plurality and of our precedents fails to accord with the intent of parties to arbitration. The very purpose of committing a dispute to arbitration is to get away from the judiciary, to get away from the strictures and limitations of *543 law, to get away, in this case, from New Jersey judges and New Jersey law. It is not that the parties would object if arbitrators thought it appropriate to consider New Jersey law, it is that they absolutely do not want to require them to.
This was a “blue ribbon” panel, a special panel reserved for construction disputes. The parties specifically required that such a panel be selected, and presumably knew that construction-industry arbitration under the American Arbitration Association (A.A.A.) required only that the arbitrators render such an award as is just and equitable.
In most cases, as in this one, all the parties want from the arbitrators is honesty and an attempt to reach a fair and just result, and what they rely on is not only the arbitrators’ honesty but, as in this case, the depth of their experience with the kinds of problems put before them. I am not suggesting that that is their intent in every case, but that it is most probably their intent in practically all cases.
It is incongruous to think that parties who want to get out of the court system, who want to avoid litigation, somehow want their awards to be reviewed on the basis of their conformance to New Jersey law. A party that wants arbitration but also wants New Jersey law to apply would say so. In many cases, the parties to a dispute have interests outside of this state, are used to the laws of other states, are used to laws as interpreted by federal courts, and most of all are used to arbitrators throughout the nation. The notion that somehow they want New Jersey law, in that respect, is also discordant with the probable expectations of the parties. The presumption enforced by our cases is just the opposite of what it should be, namely that if nothing is said in the agreement, the arbitrators may use any standards they want to reach a just and equitable result, unrestricted by any law or laws, required only to be honest and to attempt to the best of their ability, based on their knowledge and experience, to achieve a just and equitable result.
*544 If, however, the unlikely intent is the fact, and the parties really do want New Jersey law to apply, and they really do want their award to be reviewable for gross errors of New Jersey law, they must say so in their agreement.
If it be contended that our prior decisions are such as to have put parties on notice that their silence will be construed as an intent that the parties apply New Jersey law and that their award be reviewable for errors in that regard, my response is based partly on my own experience and partly on the sense of the situation. The law was never all that clear, this Court having never so clearly pronounced its views as it does in this opinion, and my belief is that as a result thereof, parties to an arbitration agreement, clearly committing their dispute to arbitrators in order to avoid the courts, would not possibly believe that the law in this state was such as to result in a rule that required the arbitrators to apply New Jersey law and a further rule that made their award reviewable for errors in interpreting that law. It simply does not make sense.
VI
The Plurality Opinion’s Improvement of the Existing Rule
It is clear that the plurality is acutely aware of the potential damage to arbitration that could be caused by the existing rule if it is improperly understood and administered. For that reason, the plurality goes to great lengths in stressing the highly restricted nature of judicial review. I believe that the plurality’s opinion may effect some improvement in the rule compared to what a scholar might have concluded it was before this opinion. Unfortunately, that improvement is more than cancelled by the fact that this Court has now unambiguously adopted the existing rule, albeit with some slight change in emphasis. If any doubt existed before, it is now gone: arbitration awards are reviewable by New Jersey courts for errors of law, however one may want to define the limitations.
*545 The problem faced by the plurality opinion is not of its making, but rather is traceable to our precedents. It follows those precedents: “gross errors of law” will result in a vacation of the award. The problem is defining what “gross errors of law” amount to. The task is formidable, and the numerous formulations in the plurality opinion attest to that fact. The formulations include: “gross, unmistakable, or in manifest disregard of the applicable law,” ante at 484, 610 A. 2d at 366; “wholly bereft of evidential support,” ante at 491, 610 A.2d at 370; “interpretation of the contractual language is reasonably debatable,” ante at 494, 610 A.2d at 371; “interpretation of law is reasonably debatable,” Ibid.; “interpretive error that may be characterized on its face as gross, unmistakable, undebatable, or in manifest disregard of the applicable law and leading to an unjust result,” ante at 496, 610 A.2d at 372; “arbitrators manifestly disregarded any applicable unmistakable principle of New Jersey law,” ante at 492, 610 A.2d at 370. I confess that I do not know which rule, or which formulation of the rule, the plurality opts for, nor do I understand, regardless of which it is, how it is to be applied. There are several things that are clear, however: the first is that we are retaining the rule that presumes the parties intend that arbitrators be bound by New Jersey law; the second is that the arbitration award can be vacated for gross errors of law; the third is that they need be only “errors,” since there is no requirement in the plurality opinion, as there is in various out-of-state and federal cases, that the arbitrators be fully aware of the clear rule of law and intentionally disregard it; and the fourth is that there is no •requirement that the error be instantly, immediately, and obviously apparent, or that it indeed appear on the “face of the record.”
I will not attempt to analyze each of the plurality’s formulations. As noted, they differ substantially from those used in other jurisdictions. In fact, the plurality’s quotation from Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bobker, 808 F.2d 930 (2d Cir.1986), ante at 496, 610 A.2d at 372, indicates that the Second Circuit’s formulation is substantially different *546 from the plurality’s. It requires that the error must have been “obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator.” 808 F.2d at 933 . It requires that “the arbitrator appreciates the existence of a clearly governing legal principle but decides to ignore or pay no attention to it.” Ibid. In other words, the court must find blatant and intentional disregard of the law, so horrendous that it is instantly perceived. This standard is quite different from that of the plurality, which, I gather, adds up to reversal only when the mistake of law is not reasonably debatable. The bounds of the rule allowing vacation of awards by the courts have never been clearly defined, and I suggest that the plurality has not moved us much closer to a definitive formulation, and that to the extent it has, it is the wrong definition.
As far as I am concerned, the formulations of the plurality are not helpful and leave us substantially where we were— judges searching a record to determine not whether there were “gross errors of law” or “manifest disregard of the law,” but rather whether there were any errors of law at all. Presumably, once you find them, you try to figure out, using what standard I do not know even now, whether they were “gross” or “instantly recognizable.” You certainly do not try to psychoanalyze the arbitrator to see if he clearly knew what the law was but intentionally disregarded it. Nor do you worry about what appears on the face of the record, you read the entire transcript. It is crystal clear from the methodology used by the trial court, the Appellate Division, and especially the plurality that the search starts for errors of law, and in this case ends with it, without worrying about how serious the error might be. Judge Gibson’s trial court opinion reflects a thorough review of the entire record and is based mostly on an assumption of what the law probably is, accompanied by a perceptive analysis of the facts. The Appellate Division’s opinion reflects more concern for propositions of law that the arbitrator presumably followed. But above all, the plurality’s opinion tells us what this rule really amounts to; for in the end what we do is functionally, *547 analytically, and in reality not one bit different from what we would have done if instead of arbitrators, this case had initially been decided by the trial court.
The plurality deals with several questions, and for each one it conducts a factual and legal analysis and marshals all of the applicable authorities in exactly the same way as learned jurists would do when reviewing lower court decisions. It cites recognized and authoritative text on the legal issues involved; it examines the thrust and intent of various portions of the Restatement of Laws; it carefully relates the significance of different factual contentions to the propositions of law involved; it notes the unperceived uncertainties in the various rules concerning the award of lost profits; it not only has every modern authority that is relevant, it grinds back to Hadley v. Baxendale, 9 Ex. 341, 156 Eng.Rep. 145 (1854), ante at 497, 610 A.2d at 373; if the general common law is not sufficient, it notes Siegfried, ante at 502, 610 A. 2d at 375; it cites authorities most judges have never heard of (Sweet, ante at 500, 610 A. 2d at 375 and Stein ante at 501, 610 A.2d at 375); it stands poised to reverse if substantial completion had occurred by a certain date, but finds the arbitrators might have found that it occurred later — as if this would not have been a “reasonably debatable” mistake of law, ante at 500-501, 610 A.2d at 374-375; it deals with the complexities of awarding lost profits to a business that has not been in business before and cites the Uniform Commercial Code on that issue; ante at 509, 610 A. 2d at 379; it analyzes Dixon, including inquiring into what the parties in that case may have contemplated, ante at 510, 610 A.2d at 380; and, finally, it notes that no New Jersey court, and only a federal court in the Southern District of New York, has interpreted the Restatement (Second) of Contracts § 351(3) (1979), ante at 512, 610 A.2d at 381.
While it does not say so, the plurality’s conclusion seems to be that the arbitrators may have made no errors of law whatsoever, to say nothing of any gross errors of law. What is even more self-evident is that the review necessitated by the rule is indistinguishable from ordinary appellate review. Its implication is that if error of law were to be found, it would not be *548 much of a distance to travel to conclude that it was “gross” or “not reasonably debatable” even if it may take a long time, a lot of hard work, enormous research, to reach the conclusion that no one could reasonably debate it.
This is not what the parties bargained for. They explicitly agreed that any dispute under their contract should be resolved by arbitration in accordance with the Construction Industry Arbitration Rules of the A.A.A. Rule 43 of the A.A.A. provides that “the arbitrator may grant any remedy or relief which is just and equitable and within the terms of the agreement of the parties.” No one claims that the award was not within the terms of the agreement of the parties. The only issue before any court hearing a challenge to this arbitration award is whether or not the remedy was “just and equitable” and as to that standard I suggest it is unreviewable absent fraud, corruption or similar wrongdoing.
VII
The Correct Rule
Arbitration in New Jersey is governed by statute. While our precedents have, I believe, disregarded that statute, it is time we return to it. It pronounces the correct rule. Basically, arbitration awards may be vacated only for fraud, corruption, or similar wrongdoing on the part of the arbitrators. It can be corrected or modified only for very specifically defined mistakes as set forth in section 9. If the arbitrators decide a matter not even submitted to them, that matter can be excluded from the award. For those who think the parties are entitled to a greater share of justice, and that such justice exists only in the care of the court, I would hold that the parties are free to expand the scope of judicial review by providing for such expansion in their contract; that they may, for example, specifically provide that the arbitrators shall render their decision only in conformance with New Jersey law, and that such awards may be reversed either for mere errors of New Jersey law, *549 substantial errors, or gross errors of New Jersey law and define therein what they mean by that. I doubt if many will. And if they do, they should abandon arbitration and go directly to the law courts.
For the reasons stated in this concurrence, I agree with the plurality’s result that the arbitration award should be confirmed.
Judge STEIN joins in this opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9694583. Public record. Not legal advice.