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Delaware Chancery Court Petitions for Cert Review of 3rd Cir. Decision

By Gabriella Khorasanee, JD on February 05, 2014 | Last updated on March 21, 2019

No more secrets. At least, that's what the Delaware Coalition for Open Government says, and two lower federal courts agreed. But, on the day of the deadline, attorneys for the Delaware Court of Chancery filed their petition for writ of certiorari, reports Reuters.

The Delaware Chancery Arbitrations

Delaware amended its laws in 2009 to provide "the power to arbitrate business disputes" to the Delaware Court of Chancery. If one of the entities is a Delaware corporation, the dispute is over $1 million or more, and if neither party is a consumer, state-sponsored arbitrations may ensue, though they are not open to the public. And, therein lies the dispute: these arbitrations, performed by the Delaware Court of Chancery have been likened to secret trials, with a public interest group claiming that these non-public arbitrations violate their First Amendment right of access.

The Third Circuit Decision

Though the district court and Third Circuit came to the same conclusion -- that access should be granted to the state-sponsored arbitrations -- they did so on different grounds. While the district court found that the arbitration process was "sufficiently like a trial," the Third Circuit instead utilized the "experience and logic" test articulated by the Supreme Court in Press-Enterprise Co. v. Superior Court.

Petition for Writ of Certiorari

The 116-page petition asks the Supreme Court to determine whether the "experience and logic" test requires that the Delaware arbitration proceedings conducted by Delaware Chancellors should be invalidated on First Amendment grounds, when the arbitration is not open the public and the parties voluntarily select arbitration.

Though this case is of significant import to the state of Delaware, and can affect Delaware's reputation as corporate-friendly, this case has little national significance as Delaware is the only state to have created this method of dispute resolution, reports The News Journal.

We'll have to wait and see if the Supreme Court grants cert.

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