The U.S. Court of Appeals for the Third Circuit’s ruling last week striking down the Delaware Court of Chancery’s confidential arbitration program as unconstitutional is also said to invalidate a virtually unknown, never-used business arbitration program adopted three years ago by the Delaware Superior Court. The Superior Court’s confidential arbitration program is identical to the Chancery Court arbitration and included the use of public judges, a feature the Third Circuit found violated the First Amendment.
In a 2-1 split precedential decision, the appellate court held that the Chancery Court’s arbitration program is ultimately a civil trial because it occurs before active judges in a public courthouse. Judges Dolores K. Sloviter and Julio M. Fuentes ruled against the arbitration program, while Judge Jane Richards Roth dissented in Delaware Coalition for Open Government v. Strine.
