Sitting Judges as Arbitrators: The Delaware Experiment

Abstract

In April 2009, the Delaware legislature enacted a statute that allows sitting Chancery Court judges to hear and resolve confidential arbitrations. The law, entitled Arbitration Proceedings for Business Disputes, provides that the "Court of Chancery shall have the power to arbitrate business disputes when the parties request a member of the Court of Chancery, or such other person as may be authorized under rules of the Court, to arbitrate the dispute." 10 Del. C. §349. This paper examines an ongoing lawsuit, filed in October 2011, by the nonprofit watchdog organization Delaware Coalition for Open Government Inc. ("DelCOG"). DelCOG sued the five judges on the state's Chancery Court to open these confidential arbitration hearings to the public.

Keywords: Arbitration, Delaware, ADR, commercial litigation