KLEWIN NORTHEAST LLC v. CITY OF BRIDGEPORT (2007)

 In this appeal, we consider whether an arbitration panel acting pursuant to the dispute resolution clause of a municipal public works contract has jurisdiction over a claim that the contract is void ab initio because it was procured illegally, and also the extent to which such corruption may form a public policy basis for the subsequent vacatur of an arbitration award.   The city of Bridgeport (city), the defendant in the first case and the plaintiff in the second case,  appeals, and C.R. Klewin Northeast, LLC (Klewin), the plaintiff in the first case and the defendant in the second case, cross appeals, from the judgment of the trial court in a consolidated proceeding granting Klewin's application to confirm pursuant to General Statutes § 52-417,¹ and denying the city's application to vacate pursuant to General Statutes § 52-418(a),² an arbitration award resulting from a dispute concerning a contract to build a new sports arena for the city.³  On appeal,⁴ the city claims that the trial court improperly confirmed, and  should have vacated, the arbitration award because:  (1) its claim that the arbitration panel (panel) lacked subject matter jurisdiction because the contract containing the arbitration clause was illegally procured, and therefore void ab initio, is committed to the trial court, and not the panel, in the first instance;  (2) even if the panel did have subject matter jurisdiction over the contract illegality claims, it failed to address them, rendering the award incomplete and defective;  (3) confirmation of an arbitration award enforcing an illegally procured contract would violate public policy;  (4) the city was deprived of its due process right to an evidentiary hearing with respect to the illegality issues raised on its application to vacate the award, and subsequent motion to reargue;  and (5) the panel lacked subject matter jurisdiction because a vacancy had resulted in a panel of only two arbitrators, when the parties had agreed on three.   In its cross appeal, Klewin claims that the trial court improperly failed to grant its request for offer of judgment interest pursuant to General Statutes § 52-192a.⁵  We affirm the judgment of the trial court.

 The record reveals the following facts and procedural history.   In March, 2000, the city and Klewin entered into a public works contract, known as the “CM agreement,” whereby Klewin would manage the construction of a sports arena, parking garage and other transportation facilities.   The CM agreement set forth a guaranteed maximum price of $44,524,515 for the construction of the arena, which was to be used as a minor league hockey facility and a basketball court for Fairfield University.   Thereafter, a dispute arose between the city and Klewin, wherein Klewin claimed entitlement to an increase in the guaranteed maximum price as a result of changes to the arena design.

On June 1, 2001, pursuant to the dispute resolution procedure set forth in § 11.7 of the CM agreement,⁶  Klewin filed a demand for arbitration with the American Arbitration Association (association), claiming damages resulting from numerous alleged breaches of contract by the city.   The city filed an answer to Klewin's subsequently amended demand for arbitration that denied the allegations therein, and also posed two counterclaims for liquidated damages stemming from a delay in the project's completion, and actual damages for other alleged breaches of the contract.

Thirty-seven days of hearings took place before the panel, which initially had consisted of three members, including a construction attorney, a construction professional and a design professional.   During the pendency of the hearings, one member of the panel became ill and was unable to complete his service, creating a vacancy on the panel.   Over the continued objection of the city, which had desired a panel of three members,  the two remaining arbitrators finished the proceedings.⁷  On the twentieth day of the arbitration proceedings, the city attempted to raise a defense that the CM agreement had been procured illegally.   The panel determined that the defense was not raised in a timely manner, and the merits of that claim were never presented to the panel.   Ultimately, the panel rendered an award of $6,020,231, including interest, in Klewin's favor.⁸

Thereafter, Klewin filed an application to confirm the award in the judicial district of New London at Norwich, and the city filed an application to vacate the award in the judicial district of Fairfield.   Both applications were consolidated before the complex litigation docket in the judicial district of Waterbury.⁹  In support of its motion to vacate the award, the city claimed that the panel improperly:  (1) proceeded with only two arbitrators after the third member became unable to serve due to illness;  (2) continued the hearings, despite the fact that it lacked subject matter jurisdiction because the entire CM agreement was void ab initio as a result of corruption surrounding its procurement;  (3) rendered an award that violated public policy by enforcing a contract that was obtained in violation of policies prohibiting contingent fee lobbying agreements, as well as the city's own ethics ordinance;  and (4) committed misconduct by refusing to consider certain issues or to admit certain evidence.

 The trial court, Alander, J., rejected all of the city's claims in a thoughtful and comprehensive memorandum of decision.   The court first concluded that the parties' agreement and the applicable association rules had authorized the panel to proceed with two, rather than three, arbitrators, after the vacancy arose.   The trial court also concluded that the city had waived its objection to the arbitrability of Klewin's claims, and specifically the city's defense that the CM agreement had been obtained illegally, by not raising that issue until the twentieth day of the arbitration proceedings, which was almost two and one-half years after the federal indictment of the city's former mayor, Joseph Ganim, on corruption related charges.¹⁰  The trial court determined that allowing the city to assert its illegality claim in an application to vacate the award would undermine the essential purposes of arbitration and “the fundamental principle which underlies the waiver doctrine of not permitting parties to await a hoped-for favorable decision on the merits, reserving the right to attack should it go against them.” ¹¹  The trial court further concluded that the city had waived its claim that the award violated public policy because that claim did not arise from the award itself, but rather from the  waived defense that the underlying contract itself was illegally procured.   Accordingly, the court rendered judgment denying the city's application to vacate the award, and granting Klewin's application to confirm the award.   The trial court subsequently denied the city's motion for reargument.   This appeal and cross appeal followed.

On appeal, the city claims that the trial court improperly:  (1) determined that the city had waived its right to claim that the panel lacked subject matter jurisdiction because the CM agreement had been procured illegally, and therefore, was void ab initio;  (2) disregarded the panel's conclusion that it lacked subject matter jurisdiction over the city's contract illegality claims, which rendered the award fatally defective because it was not “final or definite”;  (3) concluded that the city had waived its right to claim that confirmation of the arbitration award enforcing the illegally procured CM agreement would violate public policy;  (4) failed to grant the city's request for an evidentiary hearing with respect to the jurisdictional issues raised in its application to vacate and motion to reargue;  and (5) failed to conclude that the panel lacked subject matter jurisdiction because it had consisted of two, rather than the agreed upon three, arbitrators.   Additional relevant facts and procedural history will be set forth in the context of each claim on appeal.

I

WHETHER THE COURT OR THE ARBITRATION PANEL HAD JURISDICTION OVER THE ISSUES ARISING FROM THE ALLEGED ILLEGALITY IN THE PROCUREMENT OF THE CM AGREEMENT

For the sake of clarity, we begin by organizing and summarizing our resolution of the somewhat intermingled nature of the jurisdictional and public policy issues in this case.   First, we must consider the nature of the  city's claim that the entire CM agreement was illegally procured, and therefore, void ab initio.   Guided by our decision in Nussbaum v. Kimberly Timbers, Ltd., 271 Conn. 65, 856 A.2d 364 (2004), and the United States Supreme Court's recent decision in Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006), we conclude that this claim presents a defense of contract illegality, which is an issue that is firmly committed to the arbitration panel in the first instance.   We also conclude that the panel's failure to reach this issue, although improper, does not render the award fatally defective because the city waived its right to pursue that particular claim during the arbitration proceedings.

We next conclude that if a party, either explicitly or implicitly by its conduct, waives the defense of illegality before the arbitration panel, that party is precluded from raising it in subsequent judicial proceedings to confirm or to vacate an arbitration award by characterizing it as a claim that the arbitration award violates public policy.   This is because the waiver of that claim before the arbitration panel deprives the reviewing court of the factual predicate for the public policy challenge.

The record reveals the following additional relevant facts and procedural history, which begin with the city's allegations of corruption in the procurement of the CM agreement.¹²  Leonard Grimaldi, a close friend and confidant of Ganim was the owner and operator of Harbor Communications, Inc. (Harbor), a public relations consulting business.   Grimaldi testified that Ganim had “made it clear” that he expected to be compensated if  any of Grimaldi's clients were to receive work for the city.   Klewin was one of Grimaldi's clients.

In February, 1997, Grimaldi entered into a secret written agreement with Paul Pinto, another confidant and fundraiser for Ganim, to do business and share their fees with Ganim.   Pinto was an officer, and subsequently majority owner, of The Kasper Group, Inc., an architectural and engineering firm that had been retained by Ganim to do design work for the city, including the arena at issue in this case.   The agreement between Grimaldi and Pinto contemplated a contract steering scheme whereby contractors and vendors seeking to do business with the city would hire Harbor as a consulting firm, without knowledge of the illegal partnership.   Grimaldi then funneled to Pinto nearly $1 million in fees paid to him by the contractors, a sum that Pinto in turn was to share with Ganim.   Ganim then would use his office to assure the success of those contractors seeking work with the city, interfering with normal contracting procedures if necessary.

In June, 1999, Grimaldi entered into a written agreement with Klewin for “marketing services” in exchange for a $150,000 payment contingent on the procurement of the arena project contract, with additional payments of $10,000 per month.   Klewin ultimately paid Grimaldi $370,000 for “ ‘services' ” in connection with the arena project, and a significant portion of those funds was funneled through Pinto to Ganim.   No actual work was ever done for that $370,000.

At a dinner meeting in July, 1999, Ganim told Klewin officials that their company would be selected for the arena project.   Shortly thereafter, other city officials told Klewin that the city would proceed with negotiations for the possibility of contracting for the arena services.   In January, 2000, Ganim and Klewin signed the CM agreement for a guaranteed maximum price of  $44,524,515 for the arena, with a separate project agreement for an adjacent garage also to be built by Klewin.

The city claims that these activities in the procurement of the CM agreement violated numerous laws, including Bridgeport Ethics Ordinance § 2.38.030,¹³  which prohibits an employee or official from entering the city into a contract in which he or she has a direct or indirect financial interest.   Under the city's reasoning, the CM agreement is, therefore, expressly void ab initio under the terms of the ethics ordinance.   See Bridgeport Ethics Ordinance § 2.38.030(E).   Indeed, we also note that, in October, 2001, a federal indictment was issued against Ganim, charging him with racketeering in the procurement of various municipal public works contracts, including the CM agreement.¹⁴

  On May 19, 2003, after twenty days of hearings already had been held, the city moved to revise its amended arbitration answer and counterclaim to assert, for the first time, the defense of contract illegality.¹⁵  On May 21, 2003, after considering the jurisdictional implications of  a finding of contract illegality, the panel denied the city's motion to amend its answer, concluding that the proffered amendment was untimely because the indictment of Ganim containing the operative facts had issued in October, 2001, more than one and one-half years earlier.   The panel reiterated that position several months later, on October 28, 2003, stating its additional concern that a finding of contract illegality would render the agreement void ab initio, and deprive it of jurisdiction over the dispute.

In November, 2003, the city moved to bifurcate the proceedings and have the illegality issues, which the panel previously had declined to review, considered by a court.   The panel denied the city's motion to bifurcate the proceedings, and determined that the issue of contract illegality could be considered, if necessary, during the court proceedings that would follow the arbitration.

 Shortly thereafter, the chairman of the panel broached the possibility of, if both parties agreed, considering the contract illegality issue at that point, notwithstanding the panel's prior jurisdictional rulings to the contrary.   The panel and counsel then engaged in off-the-record discussions, and the issue was not pursued further before the panel, although the panel left that option open for the duration of the proceedings.   When the panel subsequently issued the award in this case, it ruled that “the issues concerning the illegality of the contract because of alleged [Connecticut Unfair Trade Practices Act] violations and other illegal acts as stated in [the city's] [c]ounterclaim and [a]ffirmative [d]efenses would not be considered by the [p]anel because [the city's] pleading was:  (a) filed too late, being twenty months after the date of ․ Ganim's indictment when facts to support this argument were known, or should have been known by [the city];  and that (b) to give credence to [the city's] argument that the [c]ontract was void ab initio would deprive the [p]anel of its jurisdiction.”   Thereafter, during the confirmation proceedings, the trial court concluded that the panel had jurisdiction in the first instance over the contract illegality claim, but that the city had waived that claim by its conduct during the arbitration proceedings.

A

Whether the Legality of a Contract Containing an Arbitration Clause Is To Be Decided by an Arbitrator or by the Trial Court in the First Instance

 The city first contends that a claim that a contract containing an arbitration clause is void ab initio on the ground of illegality falls within the exclusive jurisdiction of the court, and not the arbitration panel.   In support of that proposition, the city argues that a declaration  that a contract is void ab initio logically would render void an arbitration clause contained in that contract, thereby depriving the panel of subject matter jurisdiction over the dispute and the trial court of jurisdiction to confirm any resulting award.   Klewin, relying on the United States Supreme Court's recent decision in Buckeye Check Cashing, Inc. v. Cardegna, supra, 126 S.Ct. at 1204, and this court's decision in Nussbaum v. Kimberly Timbers, Ltd., supra, 271 Conn. at 65, 856 A.2d 364, contends in response that the issue of contract illegality is one that is committed to the panel in the first instance.   We agree with Klewin, and conclude that, in the absence of an attack specifically on the validity of the arbitration clause, which is an issue for the court, the issue of the legality of the entire underlying contract lies solely and squarely within the purview of the panel.

We note at the outset that the city's claim in the present case, which concerns the intersecting subject matter jurisdiction of the panel and the court sitting in a confirmation proceeding, presents a question of law.   Our review of the trial court's decision in this case is, therefore, plenary.   See, e.g., Alexson v. Foss, 276 Conn. 599, 604, 887 A.2d 872 (2006).

This court most recently addressed an arbitration clause in a purportedly illegal contract in Nussbaum v. Kimberly Timbers, Ltd., supra, 271 Conn. at 68, 856 A.2d 364, which involved a dispute under a new home construction contract that contained an arbitration clause.   The plaintiffs applied for an order to stay the arbitration proceedings and an order to show cause on the ground that the contract was void under General Statutes § 20-417d of the New Home Construction Contractors Act;  General Statutes § 20-417a et seq.;   because the defendant was unlicensed at the time he had entered the contract and the contract failed to comply with certain statutory notice requirements.   Nussbaum v. Kimberly Timbers, Ltd., supra, at 67-68, 856 A.2d 364.   We concluded that the “claim that  the contract is unenforceable is within the scope of the arbitration clause and must be decided initially by the arbitrator.”  Id., at 75, 856 A.2d 364.   We determined that the “claim that the contract is unenforceable because of the defendant's alleged failure to comply with § 20-417d clearly is a claim ‘arising out of or relating to’ the contract,” and is “therefore, arbitrable.”  Id., at 74, 856 A.2d 364.   We noted that “the arbitration clause is in writing, as required under [General Statutes] § 52-408,¹⁶ and the plaintiffs do not allege that the agreement to arbitrate is void for reasons that involve the formation of that agreement, such as duress, misrepresentation, fraud or undue influence․ Finally, the plaintiffs do not make a claim of any improprieties in the formation of the underlying contract that would render the arbitration agreement void.”  (Citation omitted;  emphasis added;  internal quotation marks omitted.)  Id., at 74-75, 856 A.2d 364.   We also relied on the severability principle discussed in Success Centers, Inc. v. Huntington Learning Centers, Inc., 223 Conn. 761, 772, 613 A.2d 1320 (1992), namely, that an “arbitration provision in an agreement is, in effect, a separate and distinct agreement.”   (Internal quotation marks omitted.)   See Nussbaum v. Kimberly Timbers, Ltd., supra, at 77, 856 A.2d 364.   We, therefore, concluded “that the plaintiffs' claim that the contract is unenforceable is within the scope of the  arbitration clause and must be decided initially by the arbitrator.” ¹⁷  Id., at 75, 856 A.2d 364.

In Nussbaum, we noted that “ § 52-408 is similar to § 2 of the federal Arbitration Act, 9 U.S.C. § 1 et seq.  Section 2 of that act provides that written arbitration agreements shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.  9 U.S.C. § 2 (2000).   In construing a Connecticut statute that is similar to federal law, we are guided by federal case law․ Thus, when there is no Connecticut case law directly on point, we may turn for guidance to the applicable federal law.”  (Citations omitted;  internal quotation marks omitted.)  Nussbaum v. Kimberly Timbers, Ltd., supra, 271 Conn. at 73 n. 6, 856 A.2d 364.

Accordingly, our embrace of the persuasive value of federal arbitration law renders Buckeye Check Cashing, Inc. v. Cardegna, supra, 126 S.Ct. at 1204, wherein the United States Supreme Court decided the issue of “whether a court or an arbitrator should consider the claim that a contract containing an arbitration provision is void for illegality,” especially relevant to our disposition of the present case.  Id., at 1207.   In Buckeye Check Cashing, Inc., two individuals had entered into agreements with a check cashing business wherein “they received cash in exchange for a personal check in the amount of the cash plus a finance charge.”  Id. Each separate transaction included a broad arbitration clause governed by Florida substantive law and the Federal Arbitration Act. Id. The customers brought a “putative class action in Florida state court, alleging that [the check cashing business] charged usurious interest rates and that the [a]greement violated various  Florida lending and consumer-protection laws, rendering it criminal on its face.”  Id. The Florida Supreme Court had concluded that a court, rather than an arbitrator, should decide the issue of a contract's legality because “to enforce an agreement to arbitrate in a contract challenged as unlawful could breathe life into a contract that not only violates state law, but also is criminal in nature․” (Internal quotation marks omitted.)  Id.

On appeal, the United States Supreme Court reversed the judgment of the Florida Supreme Court.   The court noted that § 2 of the Federal Arbitration Act “embodies the national policy favoring arbitration and places arbitration agreements on equal footing with all other contracts”;  id.;   and also that “[c]hallenges to the validity of arbitration agreements ‘upon such grounds as exist at law or in equity for the revocation of any contract’ can be divided into two types.   One type challenges specifically the validity of the agreement to arbitrate․ The other challenges the contract as a whole, either on a ground that directly affects the entire agreement (e.g., the agreement was fraudulently induced), or on the ground that the illegality of one of the contract's provisions renders the whole contract invalid.”  (Citation omitted.)  Id., at 1208.

The Supreme Court concluded that the customers' claim was “of this second type ․ [because] [t]he crux of the complaint is that the contract as a whole (including its arbitration provision) is rendered invalid by the usurious finance charge.”  Id. The Supreme Court relied on its previous decision in Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-404, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967), in which the court had held, that “if the claim is fraud in the inducement of the arbitration clause itself-an issue which goes to the making of the agreement to arbitrate-the federal court may proceed to adjudicate it.   But the statutory  language does not permit the federal court to consider claims of fraud in the inducement of the contract generally.”  (Internal quotation marks omitted.)   See Buckeye Check Cashing, Inc. v. Cardegna, supra, 126 S.Ct. at 1208.   The court noted that its decision in Prima Paint Corp. “rejected the view that the question of ‘severability’ was one of state law, so that if state law held the arbitration provision not to be severable a challenge to the contract as a whole would be decided by the court.”  Id.

The Supreme Court stated that “Prima Paint [Corp.] and Southland [Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984)] ¹⁸ answer the question presented here by establishing three propositions.   First, as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract.   Second, unless the challenge is to the arbitration clause itself, the issue of the contract's validity is considered by the arbitrator in the first instance.   Third, this arbitration law applies in state as well as federal courts.”  Buckeye Check Cashing, Inc. v. Cardegna, supra, 126 S.Ct. at 1209.   Applying those holdings, the court concluded that, “because respondents challenge the [a]greement, but not specifically its arbitration provisions, those provisions are enforceable apart from the remainder of the contract.   The challenge should therefore be considered by an arbitrator, not a court.”  (Emphasis added.)  Id.;  see also id., at 1210 (“[w]e reaffirm today that, regardless of whether the challenge is brought in federal or state court, a challenge to the validity of the contract as a whole, and not specifically to the arbitration clause, must go to the arbitrator”). The  Supreme Court stated that the Florida court improperly had “relied on the distinction between void and voidable contracts” in declining to apply the severability rule of Prima Paint Corp. because that case “rejected application of state severability rules to the arbitration agreement without discussing whether the challenge at issue would have rendered the contract void or voidable.” ¹⁹  (Emphasis in original.)  Id., at 1209.

Given the similarity of § 52-408 to § 2 of the Federal Arbitration Act, we adopt the Prima Paint Corp. rule as applied in Buckeye Check Cashing, Inc., as a matter of state arbitration law.²⁰  Although we find somewhat  troubling the “chicken or the egg” scenario embodied by the present case, namely, that requiring arbitration in this context conceivably might give partial effect to a contract that subsequently will be determined to be void, we agree with the United States Supreme Court's resolution of this particular issue.  “It is true ․ that the Prima Paint [Corp.] rule permits a court to enforce an arbitration agreement in a contract that the arbitrator later finds to be void.   But it is equally true that [the] respondents' approach permits a court to deny effect to an arbitration provision in a contract that the court later finds to be perfectly enforceable.  Prima Paint [Corp.] resolved this conundrum-and resolved it in favor of the separate enforceability of arbitration provisions.”  (Emphasis added.)  Id., at 1210.

We also find instructive the Montana Supreme Court's application of Buckeye Check Cashing, Inc., in Martz v. Beneficial Montana, Inc., 332 Mont. 93, 135 P.3d 790 (2006).   In that case, the plaintiffs claimed that a secured consumer loan agreement, which contained an arbitration clause, was void ab initio under Montana's consumer loan and unfair trade practices acts.  Id., at 95, 135 P.3d 790.   The Montana Supreme Court relied on Buckeye Check Cashing, Inc., and concluded that the trial court properly had granted the defendant's motion to compel arbitration.  Id., at 96-98, 135 P.3d 790.   The court rejected the plaintiffs' argument that, “even where contracts contain arbitration provisions, challenges to the contract as a whole must be heard by courts, since void contracts would necessarily invalidate any included arbitration provisions.”  Id., at 96, 135 P.3d 790.   The court noted that the plaintiffs' challenge was to the contract as a whole, and not just to the arbitration clause.  Id., at 98, 135 P.3d 790.   Thus, the Montana Supreme Court concluded that claims that a contract is void ab initio as a “whole are properly decided via arbitration, given the existence of an arbitration clause.”  Id., at 99, 135 P.3d 790.   Compare Nagrampa v. Mailcoups, Inc., 469 F.3d 1257,  1271 (9th Cir.2006) (breach of contract complaint containing attacks on validity of arbitration clause was properly before court and not arbitrator when allegations of contractual unenforceability were limited to arbitration clause because “[w]here, as here, no claim threatens to invalidate or otherwise directly affect the entire contract, the federal court must decide claims attacking the validity of the arbitration provision, even if substantive state law requires an examination of the making of the entire contract as part of that analysis”) with Brown v. Pacific Life Ins. Co., 462 F.3d 384, 397 (5th Cir.2006) (Declining to address claims that “fraud and error” vitiated a contract containing an arbitration clause because the plaintiff investors did “not distinguish between their attacks on the validity of the client agreements and the arbitration clauses themselves.   They assert only that they would not have entered into the client agreements containing the arbitration clauses if [the investment broker] had not misrepresented the terms of their investments.”).   Accordingly, we conclude that the city's proffered defense of contract illegality based on ethical and statutory violations attendant to the formation of the CM agreement is one committed to the jurisdiction of the panel in the first instance.

We address briefly the city's reliance on Buckeye Check Cashing, Inc. v. Cardegna, supra, 126 S.Ct. at 1208 n. 1, wherein the Supreme Court stated:  “The issue of the contract's validity is different from the issue of whether any agreement between the alleged obligor and obligee was ever concluded.   Our opinion today addresses only the former, and does not speak to the issue decided in the cases cited by [the] respondents (and by the Florida Supreme Court), which hold that it is for courts to decide whether the alleged obligor ever signed the contract ․ whether the signor lacked authority to commit the alleged principal ․ and whether the signor lacked the mental capacity to  assent․” ²¹ (Citations omitted.)   In relying on this footnote, the city emphasizes its ethics ordinance, which prohibits an employee or official from entering into a contract in which he or she has a direct or indirect financial interest, and expressly voids such contracts.    See Bridgeport Ethics Ordinance § 2.38.030;  see also footnote 13 of this opinion.   The city claims that, because of his violation of the ethics ordinance, Ganim had no authority to assent to the CM agreement, thereby taking this case outside the scope of the rule of Buckeye Check Cashing, Inc., and Prima Paint Corp.

We find footnote 1 of Buckeye Check Cashing, Inc., far from conclusive in the present case, because it does not state an exception to the primary rule of Buckeye Check Cashing, Inc.;   instead, it merely states that the Supreme Court did not need to reach the issue posed by cases that involve capacity or assent, as compared to substantive illegality.   Moreover, the analysis in Buckeye Check Cashing, Inc., which emphasizes an inquiry into whether the challenge is to the arbitration clause, rather than the entire contract, renders the cases cited in footnote 1 of little value in the present case, particularly to the extent that they focus on the void/voidable distinction, an approach specifically rejected by the Supreme Court.   See Buckeye Check Cashing, Inc. v. Cardegna, supra, 126 S.Ct. at 1210;  see also footnote 19 of this opinion.

Indeed, the city's claims in this case focus on the fact that the CM agreement was unenforceable because it had been procured illegally.   Thus, the city's protestations notwithstanding, this case does not present the near Kafkaesque problem envisioned in Sphere Drake Ins. Ltd. v. All American Ins. Co., 256 F.3d 587, 590 (7th Cir.2001), wherein the court stated that whether a reinsurance broker had exceeded its authority in committing an insurance company to an insurance contract that contained an arbitration clause, a defense that would render the contract void, is for the court and not the arbitrator.   The Seventh Circuit Court of Appeals rejected the applicability of Prima Paint Corp., noting that “whether there was any agreement is a distinct question ․ [because whether] a person whose name  was written on a contract by a faithless agent who lacked authority to make that commitment [does not create] a defense to enforcement, as in Prima Paint [Corp.];   it is a situation in which no contract came into being;  and as arbitration depends on a valid contract an argument that the contract does not exist can't logically be resolved by the arbitrator (unless the parties agree to arbitrate this issue after the dispute arises).   It was possible to arbitrate in Prima Paint [Corp.] without circularity;  in forgery and agency cases, by contrast, the arbitrator's authority to resolve the dispute would depend on one particular answer to that very dispute.   Only a court can break that circle.” ²²  Id., at 590-91.

In our view, the present case falls into the gray area between a case involving a contract that is void, or nonexistent, because it is substantively unenforceable, such as that contemplated in Buckeye Check Cashing, Inc., or Martz v. Beneficial Montana, Inc., supra, 332 Mont. at 93, 135 P.3d 790, and a contract that is void, or nonexistent, because of lack of assent or capacity.   See, e.g., Sphere Drake Ins. Ltd. v. All American Ins. Co., supra, 256 F.3d at 590-91.   The nature of the illegal contract defense, however, as found in our case law;  see footnote 15 of this opinion;  puts this case solidly toward the enforceability side of that spectrum, rather than in the realm of the question of whether such a contract to arbitrate even exists.²³  Thus, because the city does not claim only  that this particular arbitration clause was the result of a corrupt mayor's chicanery and prostitution of his office, but rather, attacks the validity of the entire contract, we conclude that the issue of the legality of the CM agreement is committed to the province of the arbitration panel, and not the court.²⁴

 B

Whether the City Waived Its Defense of Contract Illegality

 The city next claims that, because the arbitration panel lacked subject matter jurisdiction to decide whether a contract is void ab initio, that claim is not subject to waiver.   In part I A of this opinion, we concluded that the city's claim that the CM agreement was void ab initio on the grounds of illegality is squarely within the jurisdiction of the panel, and not the court.   Accordingly, we next consider whether the trial court properly concluded that the city, by its conduct during the arbitration proceedings, waived that contract defense.

The record reveals the following additional facts and procedural history.   As noted previously, on May 19, 2003, after twenty hearing days had already been held, the city moved to revise its amended answer and counterclaim to assert the defense of contract illegality. On May 21, 2003, after considering the jurisdictional implications of a finding of contract illegality, the panel denied the city's motion to amend the pleadings to reflect illegal procurement of the contract, noting that the indictment of Ganim containing the operative facts had been issued in October, 2001;  see footnote 14 of this opinion;  and that it was “too late in the game to make that counterclaim [because] the facts that underlie that counterclaim were known, or should have been  known, by the city ․ as of the date of the stated indictment against Ganim, and I guess his two, for lack of a better word, cohorts or henchmen.”   Indeed, in considering proffered evidence on similar claims several months later, on October 28, 2003, the panel reiterated that it was “deciding this case as a construction claim and a construction counterclaim and to the extent any evidence can come out showing that the change orders were, let's say, unwarranted in initiation or unwarranted payment, that's one thing.

“But we are not going to try this issue as to illegal contracts which we consider, if permitted, would be void ab initio and therefore, we would have no jurisdiction if the entire contract with Klewin were to be found illegal.

“And furthermore, this claim has arisen much too late in the process as far as the illegality of the [CM agreement].   It should come as no surprise to anybody around here in [the city] that [Ganim] was indicted a particular count or counts-excuse me-relative to the letting of the arena contract.   That information was available long before this panel ever began to sit.”

Subsequently, in November, 2003, the panel considered the city's motion to bifurcate the proceedings and to have the illegality issues, which it had declined to review, considered by the court.²⁵  The panel denied the city's motion, and again reiterated that the basis of its decision was the timing of the allegations, and that the city should have raised the issue at the outset of the arbitration proceedings or filed court proceedings to stop the arbitration.   The panel also took the position that the issue of contract illegality could be considered,  if necessary, during the judicial proceedings to follow the arbitration process.

Shortly thereafter, the chairman of the panel raised the possibility of, with the consent of the parties, considering the illegality issue at that point, notwithstanding the panel's prior jurisdictional rulings to the contrary.   The panel and counsel then engaged in off-the-record discussions, and subsequently went back on the record, with the chairman noting that “the panel and the counsel for both parties [have] had an opportunity to discuss privately a proposition of the panel that, contrary to its previous ruling on the lack of jurisdiction of subject matter and the lateness of filing the amended complaint or the amended counterclaim regarding the illegality of the entire contract, the panel had suggested to the parties that if they could agree in writing in a form that we would all have had some input on, that they-the parties were giving the panel the subject matter jurisdiction over the illegality of the entire contract issue and would waive the lateness in filing for an amendment in the hopes that this would, let's say, do away with a possible legal issue down the road.

“The parties talked about that and with their counsel, and one of the parties does not want to do that for its own reasons.   So, we will continue with the hearings.   We will issue a ruling on the bifurcation issue.

“And we've told the parties in an interest to resolve the dispute that if there is a change of mind by the reluctant party that it wants to proceed as we had suggested, we will get something in writing and so proceed.”   Klewin then asked the panel to identify which party was willing to proceed, and which party was not. The city objected to this request as “unfair,” and the panel's chairman overruled the objection and denied the city's motion to strike Klewin's comment, despite the fact that, “[t]he panel was very particular in not  naming the party because it thought that it would be unfair.   There are many reasons for not assenting to what the panel suggested.”   The panel did, however, leave the option available for the parties for the duration of the proceedings.

When acting on the consolidated proceedings to vacate or to confirm the arbitration award, the trial court concluded that the city waived its right to claim that the dispute was not arbitrable because of its conduct in the proceedings.   The trial court specifically credited the panel's emphasis on the fact that the city did not seek to amend its pleadings to raise its illegality claim until after twenty days of hearings had already been held, which was more than two and one-half years after the arbitration had commenced. The trial court noted that the panel had denied the city permission to amend its answer to assert an illegality defense because it deemed the amendment untimely, as the city had had notice of the alleged illegal conduct since October, 2001, when Ganim was indicted in federal court.   Indeed, the trial court emphasized that the city had taken no action to contest the arbitrability of the dispute at that point by either filing an objection in the arbitration, filing an action for a declaratory judgment, or refusing to participate further in the arbitration, thus requiring Klewin to file a motion to compel pursuant to General Statutes § 52-410.   Ultimately, the trial court concluded that the city's actions amounted to seeking “two bites at the apple.”

 We note briefly the proper standard of review.   Ordinarily, “[w]aiver is a question of fact” subject to the clearly erroneous standard of review.  AFSCME, Council 4, Local 704 v. Dept. of Public Health, 272 Conn. 617, 622, 866 A.2d 582 (2005);  id., at 624-25, 866 A.2d 582 (applying clearly erroneous standard of review to case wherein evidence consisted of letter by plaintiff waiving deadline for arbitration decision).   We agree with the city, however, that  plenary review is appropriate in the present case because “when a trial court makes a decision based on pleadings and other documents, rather than on the live testimony of witnesses, we review its conclusions as questions of law.”  State v. Lewis, 273 Conn. 509, 516-17, 871 A.2d 986 (2005).

 “Waiver is the intentional relinquishment or abandonment of a known right or privilege.”  (Internal quotation marks omitted.)  AFSCME, Council 4, Local 704 v. Dept. of Public Health, supra, 272 Conn. at 623, 866 A.2d 582.  “[V]arious statutory and contract rights may be waived.”  (Internal quotation marks omitted.)  Id. “Waiver is based upon a species of the principle of estoppel and where applicable it will be enforced as the estoppel would be enforced․ Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed․ Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied․ In other words, waiver may be inferred from the circumstances if it is reasonable to do so.”  (Citations omitted;  internal quotation marks omitted.)  Id. The waiver doctrine applies to arbitration because “[w]e have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.”  (Internal quotation marks omitted.)   Diamond Fertiliser & Chemical Corp. v. Commodities Trading International Corp., 211 Conn. 541, 553, 560 A.2d 419 (1989), quoting Krattenstein v. G. Fox & Co., 155 Conn. 609, 616, 236 A.2d 466 (1967).

In New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, 237 Conn. 378, 380, 677 A.2d 1350 (1996), we concluded that a city that was party to a labor grievance  arbitration proceeding had waived its right to vacate the award because of its affirmative conduct during the proceeding.   The city sought to vacate the arbitration award on the ground that the state mediation and arbitration board had committed misconduct by refusing to grant the city's attorney a continuance when he became ill during the proceedings.   Id., at 381, 677 A.2d 1350.   We concluded that the trial court did not commit clear error when it determined that the city implicitly had waived its claim that the arbitrator committed misconduct because its attorney had continued to negotiate “freely and voluntarily” after the denial of the continuance.  Id., at 389-90, 677 A.2d 1350.   Similarly, in AFSCME, Council 4, Local 704 v. Dept. of Public Health, supra, 272 Conn. at 626, 866 A.2d 582, we concluded that “the Appellate Court improperly concluded that the plaintiff's unilateral grant of the arbitrator's request for an extension was ineffective in the absence of the defendant's consent, and therefore could not amount to a waiver of the plaintiff's right to challenge the untimeliness of the award.”   See also White v. Kampner, 229 Conn. 465, 478, 641 A.2d 1381 (1994) (The defendant objected to the arbitrability of the dispute based on the parties' failure to satisfy the preconditional mandatory negotiation clause at issue, but “[b]ecause the defendants preserved their objection to the arbitration, they had the option of committing the issue to the arbitrator without risking any waiver of their right to have the issue ultimately determined by the trial court․ Under these circumstances, we hold that the defendants did not waive consideration of the issue of arbitrability by the trial court.”  [Citation omitted.]);  Diamond Fertiliser & Chemical Corp. v. Commodities Trading International Corp., supra, 211 Conn. at 552-53, 560 A.2d 419 (“the plaintiff could not prevail in its attempt to vacate the award as untimely because it waived any right to object to the timeliness of the award by failing to object when it was notified of the date on  which the award would be rendered”);  cf.  Nagrampa v. Mailcoups, Inc., supra, 469 F.3d at 1278 (concluding that plaintiff did not waive her objection to arbitration via participation when her participation therein was limited to two preliminary telephone conferences and steps necessary to preserve her objections to arbitration and rights in proceeding, including filing of counterclaim and discovery requests, when she “never participated in any proceedings which even touched the merits of the contractual claims that were to be the subject of arbitration”).²⁶

It is apparent to us that the city acted aggressively, and, indeed, properly;  see part I A of this opinion;  in attempting to present its contract illegality claim to the panel.   We agree with the trial court's determination, however, that the city's attempt was, in essence, too little, too late.   Our conclusion that the city waived its contract illegality claim is based on the findings by the panel and the trial court that the city unduly delayed the presentation of the claim, notwithstanding the fact that it was aware of the bases for the claim since October, 2001, when the federal indictment against Ganim was issued.²⁷  Indeed, the city did nothing at that point  to preserve its objection to or stay the arbitration proceedings pending developments with respect to facts alleged in the indictment.   Moreover, the record indicates that, when the panel reconsidered its improper initial determination as to subject matter jurisdiction, as well as its timeliness ruling, and offered the city the chance to present its illegality claim, the city did not avail itself of that opportunity to go on the record to present or to preserve its right to make that claim.²⁸  Accordingly, we conclude that the trial court properly found that the city's actions before the panel constituted a waiver of this claim.

C

Whether the Panel's Improper Subject Matter Jurisdiction Ruling Rendered the Award Incomplete or Defective

 The city correctly notes that the panel's conclusion on the face of the award that it lacked subject matter jurisdiction over the contract illegality claim conflicts with the trial court's conclusion, which was upheld by this court, that such a claim was within the jurisdictional ken of the arbitrators.²⁹  See part I A of this opinion.   The city further contends that, since the panel concluded that it lacked subject matter jurisdiction over the illegality claim, and it in fact did have such jurisdiction, the award is incomplete, and therefore fatally defective as not final or definite.   See General Statutes § 52-418(a)(4).   We disagree.

If the record in this case were as simple as the city apparently envisions, reversal and vacatur of the award would in fact be required because the panel would have executed its powers in an incomplete and defective manner.   The city gives short, or no, shrift, however, to the fact that the panel also emphasized in the award that the city's amended pleading was untimely because it had been filed twenty months after the indictment of Ganim.   Moreover, on the record of this case, the city's claim is unavailing because the panel did in fact offer the city the opportunity to submit its illegality claim, however untimely, for resolution.   By not pursuing that opportunity further before the panel, the city waived that claim.   See part I B of this opinion.   This waiver rendered the panel's incorrect legal determination, in effect, harmless error not requiring vacatur of the award.³⁰

 D

Whether the City's Waiver of the Illegal Contract Defense Before the Panel Affected Its Right to Claim that the Arbitration Award Should Be Vacated on Public Policy Grounds

 The city next contends that the trial court improperly concluded that the city waived its right to assert that arbitral enforcement of the illegally procured CM agreement would violate public policy.   Citing our decision in Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., 252 Conn. 416, 747 A.2d 1017 (2000), the city argues that, because the public policy claim was raised in a timely application to vacate the award, it was not subject to waiver since the court engages in de novo review in a public policy challenge to an arbitration award.   The city, with the support of the amici curiae, namely, the state of Connecticut, the Connecticut Association of Municipal Attorneys and the Connecticut Conference of Municipalities, further argues that the panel's award in this case violated the public policy against corruption in municipal contracting because it enforced an agreement that was the product of improper conflicts of interest that violated applicable state statutes and ethics ordinances.   In response, Klewin contends that the city's arguments conflate two issues:  (1) whether enforcement of an arbitration award, which deals with the lawfulness of the award itself, violates public policy;  and (2) whether the contract underlying the award violates public policy because of its terms or the manner in which it was procured.   Klewin claims that, because there is nothing facially illegal about the contract or the award, its enforcement would not violate public policy, and that attacks on the legality of the underlying contract are exclusively within the province of the panel.   Accordingly, Klewin argues that the city's claim is merely an improper relabeling of its contract illegality defense.    We conclude that, on this record, the city's public policy claim is functionally indistinguishable from its contract illegality defense, and because the city waived its opportunity to present that claim before the panel, the trial court properly determined that the city had waived its public policy claim because there was no factual predicate under which it could be reviewed.

Whether the trial court properly concluded that the city's public policy claim was subject to the waiver doctrine presents a question of law, over which our review is plenary.   See LaSalla v. Doctor's Associates, Inc., 278 Conn. 578, 586, 898 A.2d 803 (2006) (“[w]e agree with the defendant that the proper scope of review, in both the trial court and this court, for a colorable claim that an award violated public policy is plenary”).

 “A court's refusal to enforce an arbitrator's award ․ because it is contrary to public policy is a specific application of the more general doctrine, rooted in the common law, that a court may refuse to enforce contracts that violate law or public policy.”  United Paperworkers International Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 42, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987).  “This rule is an exception to the general rule restricting judicial review of arbitral awards.”  MedValUSA Health Programs, Inc. v. MemberWorks, Inc., 273 Conn. 634, 655, 872 A.2d 423, cert. denied sub nom.  Vertrue, Inc. v. MedValUSA Health Programs, Inc., 546 U.S. 960, 126 S.Ct. 479, 163 L.Ed.2d 363 (2005).   “The exception, however, is narrowly construed and ․ is limited to situations where the contract as interpreted would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.”  (Internal quotation marks omitted.)  Id. To be vacated under the narrow public policy exception, “the award  must be clearly illegal or clearly violative of a strong public policy.”  (Emphasis in original;  internal quotation marks omitted.)  Id., at 656, 872 A.2d 423.   “Furthermore, [t]he party challenging the award bears the burden of proving that illegality or conflict with public policy is clearly demonstrated.”   (Internal quotation marks omitted.)  Id.;  see also id., at 641, 654, 872 A.2d 423 (concluding that Connecticut does not have explicit, well-defined public policy prohibiting excessive punitive damages awards, and that judicial confirmation process was not state action for purposes of due process clause protections against excessive punitive damages).

 Judicial review of whether an arbitration award violates public policy is de novo, but not completely unfettered.   The legal determination of whether a particular award violates public policy necessarily depends on the facts found by the arbitrator during those proceedings.   For example, in Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., supra, 252 Conn. at 416, 747 A.2d 1017, a case involving a public policy challenge under rule 5.6 of the Rules of Professional Conduct to a partnership agreement provision that had conditioned the receipt of retirement benefits on compliance with a noncompete clause, we concluded that “when an arbitrator has been called upon to determine whether an ․ agreement violates a legitimate and clearly established public policy, such as that underlying rule 5.6, de novo review is proper”;  id., at 426, 747 A.2d 1017;  because the determination of “whether ․ there exists a public policy mandate with which an arbitral award must conform ․ indisputably involves an issue of law properly resolved by an exercise of this court's plenary authority.”  (Citations omitted;  internal quotation marks omitted.)  Id., at 428-29, 747 A.2d 1017 (discussing expressions of public policy in statutes, case law or administrative regulations).   We also stated that once “it has been determined that an arbitral award does implicate a clearly established public policy, the  ultimate question remains as to whether the award itself comports with that policy”;  id., at 429, 747 A.2d 1017;  and concluded that judicial review of that determination is de novo.  Id. In noting that “courts have greater expertise and knowledge than arbitrators” in “the identification and application of the public policy of this state”;  id., at 430, 747 A.2d 1017;  we emphasized that “a reviewing court [is] better suited to evaluate whether certain facts, as found by the arbitrator, comport with the specific public policy that is at issue.”  (Emphasis added.)  Id.

Indeed, in Schoonmaker, we emphasized our adherence “to the long-standing principle that findings of fact are ordinarily left undisturbed upon judicial review.   Thus, in the present case, we defer to the arbitrator's interpretation of the agreements regarding the scope of the forfeiture upon competition provision, as well as the terms upon which postemployment benefits are offered to former employees.   We conclude only that as a reviewing court, we must determine, pursuant to our plenary authority and giving appropriate deference to the arbitrator's factual conclusions, whether the forfeiture provision in question violates those policies.”  Id., at 432, 747 A.2d 1017;  see also State v. AFSCME, AFL-CIO, Council 4, Local 2663, 257 Conn. 80, 95, 777 A.2d 169 (2001) (“To the extent that the plaintiff claims that the award violated public policy because the arbitrator misapplied the [contract's] definition of salaried employee, we decline to undertake judicial review of the arbitrator's factual determinations in interpreting the terms of the contract.   The arbitrator made a factual determination that commission staff attorneys are hourly, rather than salaried employees.”);  Groton v. United Steelworkers of America, 254 Conn. 35, 51-52, 757 A.2d 501 (2000) (noting that legal system “ordinarily” gives “great deference ․ to both the factual and legal determinations of the arbitrators,” and that even in a de novo public  policy challenge, “we give deference to the arbitrator's factual determinations” [citations omitted]).³¹

Whether an arbitration award violates the public policy against corruption in governmental contracting turns on a subsidiary factual determination that the underlying contract was illegally procured.   This determination is fundamentally indistinguishable from resolution of the defense that the contract is void ab initio on grounds of illegality.   This type of public policy claim is, therefore, especially dependent on arbitral findings of fact, which, as previously discussed, on which we both rely and defer to.   In this regard, we find instructive Justice Vertefeuille's dissenting opinion in Bridgeport v. Kasper Group, Inc., 278 Conn. 466, 899 A.2d 523 (2006).   In that case, Justice Vertefeuille, in addressing a proffered alternate ground for affirmance,³² namely,  that enforcement of an arbitration “award would violate the public policy against enforcing a contract that was illegally procured”;  id., at 495, 899 A.2d 523;  concluded that, “even if I ․ were to assume, arguendo, that there exists an explicit, well-defined, and dominant public policy against enforcing illegally procured contracts, I would defer to the arbitrator's factual findings under this court's standard of review of the narrow public policy exception․ Thus, I would not review the correctness of the finding, implicit in the arbitrator's award, that the contract was not illegally procured․ The plaintiff contended throughout the arbitration that the [school construction] contract was illegally procured.   The arbitrator's award in favor of the defendant reveals his clear rejection of this defense.   Even if I were to consider the evidence excluded by the arbitrator, I would nevertheless conclude that this evidence was insufficient to prove clearly that the [school construction] contract was obtained illegally.” ³³  (Citations omitted.)  Id., at 499, 899 A.2d 523 (Vertefeuille, J., dissenting).

 In the present case, as in Kasper Group, Inc., the nature of the public policy claim renders it particularly fact bound and inextricably linked to the illegal contract defense;  indeed, they are one and the same.³⁴  Thus,  when the city waived the illegal contract defense before the panel;  see part I B of this opinion;  it necessarily deprived the trial and reviewing courts of the factual findings necessary to decide that claim in the context of a public policy challenge, even assuming the existence of a strong, well-defined public policy against corruption in the procurement of public contracts.³⁵

We are, however, “mindful ․ that the arbitration under review is complicated by the fact that it involves public funds and the question of whether the city had a full and fair opportunity to contest the use of such funds for purposes of illegal dealings.   Although we do not advocate different rules to govern such arbitrations, we must remain vigilant in ensuring that the efficiency and economics generally associated with arbitrations do not swallow the public interest that has been compromised as a result of the arbitrator's misconduct.” ³⁶   Bridgeport v. Kasper Group, Inc., supra, 278 Conn. at 486, 899 A.2d 523.   In the present case, having already concluded that factual development of the contract illegality issue solely was committed to the panel, to then conclude that the trial court was required to hold extensive hearings, essentially amounting to a trial, in a confirmation proceeding addressing that identical issue in the guise of a public policy challenge would vitiate that first conclusion.   Put differently, we decline to accept what we view as the city's invitation to turn public policy challenges into the arbitration equivalent of a “mulligan” ³⁷ by inviting de novo factual review of illegal contract issues.   See Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., supra, 252 Conn. at 429 n. 7, 747 A.2d 1017 (“[A] party raising such a challenge to an arbitral award may not succeed in receiving de novo review merely by labeling its challenge as falling within the public policy exception to the normal rule of deference.   The substance, not the form, of the challenge will govern.”).   Accordingly, we conclude that, when the city waived the illegal contract defense before the panel;  see part I B of this opinion;  it also deprived the court of the factual basis necessary to consider that same claim in the context of a public policy challenge.

II

WHETHER THE TRIAL COURT PROPERLY DENIED THE CITY'S MOTIONS FOR AN EVIDENTIARY HEARING AND FOR REARGUMENT

 The city next argues that the trial court improperly denied its motion for an evidentiary hearing to resolve  the disputed jurisdictional facts at issue, namely, the circumstances surrounding the illegal contract procurement, which went to the panel's subject matter jurisdiction.   Klewin contends in response that this claim was not raised adequately before the trial court, and further is a “red herring” because the factual issues were within the jurisdiction of, and waived before, the panel.

 The city correctly points out that “[w]hen issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.”   (Internal quotation marks omitted.)  Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 833, 826 A.2d 1102 (2003).   In the present case, we already have concluded that all of the factual issues surrounding the allegedly illegal procurement of the contract were firmly committed to the panel in the first instance, notwithstanding their import to a subsequent public policy determination.   See part I A and D of this opinion.   Because the city waived its right to present those factual issues by its conduct before the panel;  see part I B of this opinion; ³⁸  the trial court did not improperly deny its motion for an evidentiary hearing, and did not abuse its discretion by denying the city's subsequent motion for reargument on this point.³⁹

 III

WHETHER THE PANEL PROPERLY PROCEEDED WITH ONLY TWO ARBITRATORS AFTER A VACANCY DEVELOPED

 The city next claims that the trial court should have vacated the arbitration award because the arbitrators lacked subject matter jurisdiction as the panel only had two members, rather than the agreed upon three members.   The city claims that the parties had agreed at the outset of the arbitration that a balanced panel of three arbitrators was required, thus requiring departure from the association's commercial arbitration rules that permit an incomplete panel to continue with an arbitration.   In response, Klewin argues that the issue of whether to proceed with two arbitrators was committed to the panel, which decided that issue correctly.   We agree with Klewin, and conclude that, after a vacancy developed on the panel during the proceedings, the arbitrators properly continued the proceedings with a panel of two members.

The record reveals the following additional facts and procedural history.   In June, 2001, the city requested that the association select a panel of three arbitrators in accordance with the commercial arbitration rules for large, complex disputes that would include an experienced construction attorney, an experienced design professional and an experienced contractor;  the letter noted specifically that “[b]y agreement with [Klewin's attorney], we request that you use the construction industry panel for purposes of selection of the panel.”   Subsequently, in February, 2002, prior to commencement of the hearings, the attorney member, Edwin Hebb, withdrew from the panel for personal reasons.    In March, 2002, the parties agreed that Attorney Peter Lawson Kennedy would replace Hebb on the panel, and serve as chairperson.

Thereafter, the hearings commenced, but, in September, 2002, Frank Juliano, another member of the panel, resigned because of illness.   At that point, the parties disagreed about whether to proceed with the remaining two arbitrators, with only Klewin favoring that course of action.   Relying on rule R-21 (b) of the association's commercial dispute resolution procedures,⁴⁰ the arbitrators elected to continue with the proceedings with a two member panel, concluding that the parties had not “ ‘agree[d] otherwise’ ” in accordance with the rules.⁴¹  Thereafter, the city renewed its objection and participated in the subsequent hearings under protest.

The trial court concluded that, under the arbitration rules, it properly was in the purview of the panel to determine whether the vacancy should be filled.⁴²  The  trial court further noted that, because the parties' arbitration clause did not expressly or specifically establish the composition of the panel, the panel properly interpreted the association's rules to permit the use of only two arbitrators.   The court also concluded that the letter from the city requesting that the panel be selected in accordance with the rules for large commercial disputes, which would require three arbitrators, indicated that Klewin had agreed to those rules only for purposes of the selection of the initial panel.   The court also rejected the city's argument that Klewin's acquiescence to filling the first vacancy corroborated the existence of such an agreement, indicating that it was only evidence of such an agreement to a panel of three on that particular occasion.

Whether the panel had the authority, under the agreement of the parties and the applicable association rules, to proceed with two arbitrators after a vacancy had developed raises an issue of whether the panel exceeded its powers, a ground for vacatur under § 52-418(a)(4).   This presents a question of law over which we exercise plenary review.   See, e.g., Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 84, 881 A.2d 139 (2005).

 An agreement about the initial composition of an arbitration panel is distinct conceptually from an agreement about how to address vacancies on that panel, and the association's rules incorporated by reference into an arbitration clause properly are the subject of interpretation by the arbitration panel.  Bernstein v. On-Line Software International, Inc., 232 App.Div.2d 336, 337, 648 N.Y.S.2d 602 (1996), appeal denied, 89 N.Y.2d 810, 678 N.E.2d 1354, 656 N.Y.S.2d 738 (1997).   Moreover, in the absence of a specific agreement as to the composition of the arbitration panels, which signifies an “agreement otherwise” by the parties, a panel of three neutral arbitrators properly may continue with fewer than three members if a vacancy arises on the panel.  Id., at 336-37, 648 N.Y.S.2d 602;  see Board of Neosho County Commissioners v. Central Air Conditioning Co., 235 Kan. 977, 979-80, 683 P.2d 1282 (1984);  MMR-Radon Constructors, Inc. v. Continental Ins. Co., 714 So.2d 1, 9 (La.App.), review denied, 721 So.2d 915 (La.1998);  Wiekhorst Bros. Excavating & Equipment Co. v. Sanitary & Improvement District No. 337, 232 Neb. 377, 379, 440 N.W.2d 488 (1989);  cf.   Szuts v. Dean Witter Reynolds, Inc., 931 F.2d 830, 831-32 (11th Cir.1991) (vacating award because arbitration improperly continued with two arbitrators when parties' arbitration agreement specifically required panel of three).

Having reviewed the record, we conclude that the trial court properly determined that the parties' arbitration agreement did not contemplate any variation from the association's rules with respect to panel vacancies arising during the course of hearings.   The CM agreement's arbitration clause stated in relevant part only that unresolved disputes “shall be submitted to the American Arbitration Association for resolution in accordance with its commercial rules of arbitration then in effect,” and does not prescribe specifically the composition of the panel.   See footnote 6 of this opinion.   Moreover, the correspondence of the parties does not evince any particular agreement as to the handling of subsequent vacancies on the panel.   Accordingly, how to proceed in the event of a vacancy was an issue squarely within the authority of the panel, and the trial court, therefore, properly concluded that the association's rules permitted the panel to proceed with two arbitrators after a vacancy had developed.

 IV

CROSS APPEAL:WHETHER OFFER OF JUDGMENT INTEREST IS AVAILABLE IN PROCEEDINGS TO CONFIRM ARBITRATION AWARDS

 Finally, we consider Klewin's cross appeal, in which it claims that the trial court improperly failed to add offer of judgment interest to the judgment in this case pursuant to § 52-192a.   In response, the city, relying on, inter alia, Nunno v. Wixner, 257 Conn. 671, 778 A.2d 145 (2001), claims that arbitration confirmation proceedings are not “civil actions” within the meaning of § 52-192a.   We decline to reach this claim because the trial court did not rule on it, rendering the record inadequate for review.

 In its application to confirm the award, Klewin noted that it had filed an offer of judgment during the arbitration proceedings in the amount of $5,800,000, which the city rejected.   In its claim for relief, Klewin then requested offer of judgment interest pursuant to § 52-192a, in addition to confirmation of the award.   Thereafter, the trial court rendered judgment confirming the award, but neither the memorandum of decision nor the judgment file make any mention of Klewin's claim for offer of judgment interest.   We also note that there are no postjudgment motions, such as a motion for articulation or rectification;  see Practice Book § 66-5; ⁴³   or a motion to open the judgment;  see General Statutes § 52-212a; ⁴⁴  or a motion to correct the judgment;  see, e.g., Connecticut National Bank v. Gager, 263 Conn. 321, 326, 820 A.2d 1004 (2003); ⁴⁵  addressing the issue of offer of judgment interest.

 “As is always the case, the [appellant], here the [defendant], bear[s] the burden of providing a reviewing court with an adequate record for review․ It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision  ․ to clarify the legal basis of a ruling ․ or to ask the trial judge to rule on an overlooked matter․ In the absence of any such attempts, we decline to review this issue.”  (Citations omitted;  internal quotation marks omitted.)  Grimm v. Grimm, 276 Conn. 377, 388-89, 886 A.2d 391 (2005), cert. denied, 547 U.S. 1148, 126 S.Ct. 2296, 164 L.Ed.2d 815 (2006);  see also, e.g., Practice Book § 61-10 (“[i]t is the responsibility of the appellant to provide an adequate record for review”);  Practice Book § 66-5 (motion for articulation).   Thus, we will not engage in the “inappropriate task of speculating about the trial court's reasoning” by reviewing Klewin's cross appeal.  Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 233, 828 A.2d 64 (2003);  id. (declining to reach various statute of limitations claims raised by plaintiffs' motions for additur and to set aside verdict when “[t]he draft judgment file contains only a general denial of the plaintiffs' motions, and the trial court did not discuss the statute of limitations issues in rendering its oral decision ․ [and] the plaintiffs never remedied this defect in the record by moving for articulation or rectification of the trial court's decision”);  see also Heaven v. Timber Hill, LLC, 96 Conn.App. 294, 312, 900 A.2d 560 (2006) (declining to review claim that trial court improperly granted plaintiff's motion for offer of judgment interest because “[f]rom the trial court record, it is not clear why the court awarded the plaintiff offer of judgment interest on the basis of the ‘renewed offer of judgment,’ which had apparently been withdrawn ․ [since] [t]he defendant ․ did not file a motion for articulation seeking an explanation from the court as to the basis for its finding that the renewed offer of judgment was still valid”).

 Inasmuch as none of the parties' numerous memoranda of law to the trial court mention this issue, which was raised solely in the initial application to confirm the award, it may well have been overlooked in the  court's admirable efforts to rule on claims actually raised in hundreds of pages of briefs, contained in a voluminous file with thousands of pages of transcripts and exhibits.   Moreover, as we previously noted, Klewin never filed any kind of postjudgment motion that would have brought to the trial court's attention this potentially overlooked request.   Accordingly, we decline to consider this sole claim in Klewin's cross appeal.⁴⁶

The judgment is affirmed.

NORCOTT, J.

In this opinion the other justices concurred.