UPDATE: Battle Continues Over Secret Arbitrations in Delaware, Chief Judge Announces

On Wednesday, November 21, 2013, Chief Justice Myron T. Steel of the Delaware Supreme Court announced that the fight is not over regarding Delaware’s private arbitration process, which was struck down by the Third Circuit last month. Delaware’s arbitration process enables Court of Chancery judges to preside over private arbitration of certain business disputes. Last month, on October 23, 2013, the Third Circuit determined that the Delaware arbitration program was unconstitutional, concluding that its confidential nature violated the First Amendment. CPR analyzed the appellate court’s decision here.

Earlier this month, counsel for the Court of Chancery let an appeal deadline pass, which suggested that the case subsided. See Sean O’Sullivan, “Chancery Attorneys Allow One Appeal Deadline to Pass,” Delaware Online, Nov. 12, 2013, available at http://delonline.us/1anbIcW. However, several news outlets have reported that Justice Steel, who will retire at the end of the month, announced at a recent corporate law forum that the fight was not over and that the case could be ripe for the U.S. Supreme Court. See “Delaware Chief Justice Expects More Wrangling over Constitutionality of Secret Arbitration,” Nov. 21, 2013, available at http://wapo.st/1c60JUE; Randall Chase, “Del. Jurist: Secret Arbitration Fight Not Done,” WDEL, Nov. 21, 2013, available at http://bit.ly/1ekSpCG; Rachel Rea, “Secret Arbitration Legal Battle May Not be Over,” Nov. 21, 2013, available at http://bit.ly/I5Jv0G.

This may give hope to business litigants seeking to benefit from the program’s unique combination of a corporate expert adjudicator, an efficient case management system, and confidential proceedings.

-          Cynthia Galvez, CPR Legal Intern