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Barcon Associates Inc. v. Tri-County Asphalt Corp.

Decided: February 1, 1980.

BARCON ASSOCIATES, INC., PLAINTIFF-APPELLANT,
v.
TRI-COUNTY ASPHALT CORPORATION, DEFENDANT-RESPONDENT



On appeal from Superior Court of New Jersey, Law Division, Morris County, whose opinion is reported at 160 N.J. Super.. 559 (1978).

Fritz, Kole and Lane. The opinion of the court was delivered by Fritz, P.J.A.D.

Fritz

The question here is whether in matters of tripartite arbitration confirmation of the arbitrators' award should be denied because of "evident partiality" in all cases in which there has been an undisclosed, substantial, ongoing business relationship between an arbitrator and one of the parties. The trial judge answered this question in the affirmative and in a well reasoned and articulate opinion in which the factual milieu is adequately stated, vacated the award. 160 N.J. Super. 559 (Law Div.1978). This appeal followed. We affirm.

We have been cited to no other New Jersey case considering the precise question and we have found no reported opinions. The problem is treated at some length in Annotation, "Setting

aside arbitration award on ground of interest or bias of arbitrators," 56 A.L.R. 3d 697, especially ยง 6 at 727 (1974). The difficulties inherent in the matter are demonstrated by the fact that they have even produced apparently different conclusions in the same jurisdiction. In Astoria Medical Group v. Health Ins. Plan , 11 N.Y. 2d 128, 227 N.Y.S. 2d 401, 182 N.E. 2d 85 (Ct.App.1962), the court of last resort in New York considered the matter one of contractual assent and, refusing to "rewrite their contract" (227 N.Y.S. 2d at 406, 182 N.E. 2d at 88), determined that any arbitrator could be partisan as long as he was not dishonest. In J. P. Stevens & Co., Inc. v. Rytex Corp. , 34 N.Y. 2d 123, 356 N.Y.S. 2d 278, 312 N.E. 2d 466 (Ct.App.1974), the same court 12 years later held, without even mentioning Astoria Medical Group v. Health Ins. Plan , that "all arbitrators before entering upon their duties should make known any relationship direct or indirect that they have with any party to the arbitration, and disclose all facts known to them which might indicate any interest" (356 N.Y.S. 2d at 283, 312 N.E. 2d at 469), or grounds would exist to vacate the award on the basis of "a presumption of bias." (Ibid.; emphasis supplied) Each of these cases had vigorous dissents by a substantial minority. In each the majority opinion only garnered four of the seven votes.

The substantial policy arguments favoring each of the differing views are readily apparent. On the one hand, it is certainly so that as a favored remedy, voluntarily chosen by the parties, a presumption of correctness in all respects should be accorded an arbitration award and it should not be overturned except upon a clear demonstration of statutory violation. As pointed out in Astoria the court's role might very properly be "limited to the enforcement of the terms of the contract" in connection with determinations in this "private tribunal" which "the parties themselves [have chartered] . . . for the resolution of their disputes." 227 N.Y.S. 2d at 403, 182 N.E. 2d at 87. On the other hand, the quotation from the dissent there of Chief Judge Desmond appearing in the trial court opinion here (160 N.J. Super.

at 568) is most compelling. Beyond this, it seems reasonable to expect that substantial justice -- the lodestar of human interrelationships -- might most surely be produced in a forum where the scales are not unfairly predisposed by an affinity known to one but not known (or reasonably knowable) to the other. Unquestionably this latter consideration contributed to the vacation of the arbitration award in Johnston v. Security Ins. Co. , 6 Cal.App. 3d 839, 86 Cal.Rptr. 133 (D.Ct.App.1970).

Whatever the fact of the matter before us, we would be loath to countenance a mismatch on the sole ground that one party had been a little more astute or cunning in his contracting or on the fortuitous basis that neither had given the matter much timely forethought.

It is the balancing of these reasons and others set forth in the opinion of Judge Stanton in the trial court that causes us to concur with his views. Our concern for the rightness in this way of doing business, open, aboveboard and candid, reflects a similar conclusion expressed thusly in Commonwealth Coatings Corp. v. Continental Cas. Co. , 393 U.S. 145, 89 S. Ct. 337, 21 L. Ed. 2d 301, reh. den. 393 U.S. 1112, 89 S. Ct. 848, 21 L. Ed. 2d 812 (1969):

The vice is not the inherence of possible -- as contrasted with probable -- bias, a difference well isolated in the dissent in J. P. Stevens & Co., Inc. v. Rytex ...


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