Delaware Coalition for Open Government, Inc. v. The Hon. Leo E. Strine, Jr., et al.,

Case Updates

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The U.S. Chamber urged the Third Circuit to reverse the judgment of the U.S. District Court for the District of Delaware that struck down a 2009 Delaware statute that provides for confidential arbitration of business disputes by Court of Chancery judges. The statute allows the Chancellor of the Delaware Chancery Court, upon request of the parties, to appoint a Chancery Judge to serve as an arbitrator in business-to-business disputes. The court ruled that the program violates the First Amendment because it allegedly foreclosed the public’s “right to access” government proceedings.” The Chamber argued in its amicus brief that arbitration is not “civil litigation by another name” and this program provides a cost-effective and efficient way for businesses to resolve disputes, especially complex commercial ones. The Chamber also argued that because confidentiality is essential to arbitration, businesses will not arbitrate publicly before Court of Chancery judges. Requiring public disclosure a confidential process vitiates any benefits of openness and ignores the substantial public costs this decision imposes.