In 2009, Delaware enacted 10 Del. C. § 349 to give the Court of Chancery the power to arbitrate business disputes.  Under the rules adopted by the Court of Chancery, the arbitration was a private, confidential proceeding with streamlined discovery before a Chancellor or Vice Chancellor.  The Delaware Coalition for Open Government filed a lawsuit alleging that the confidential nature of the proceedings violated, among other things, the public’s constitutional right of access to civil trials found in the First Amendment.  The United States District Court agreed that the confidential nature of the arbitrations before a member of the Court violated the First Amendment right to public access to civil trial.  In 2013, the United States Court of Appeals for the Third Circuit affirmed that decision.  Since that time, no arbitrations have been held.

 

In 2014, however, Chief Justice Leo E. Strine, Jr., along with members of the Council of the Corporation Law Section of the Delaware State Bar Association have been developing legislation to permit arbitrations to be conducted within the purview of the Court of Chancery but with private lawyers acting as the arbitrators, not judicial officers.  If this legislation passes, we will update this section.