Closed System Of Business Arbitration Overseen By Judges Collides With First Amendment Right Of Access
On February 26, 2014, I posted the Delaware Chancery Court had petitioned SCOTUS to allow the Chancery Court to oversee private arbitrations. An arbitration forum provided by Chancery Court judges was thought to be attractive and a draw for large corporations, with heavy-weight commercial disputes, desiring the expertise of the Chancery Court and the privacy afforded by arbitration.
On March 24, 2014, Lyle Denniston reported in SCOTUSblog that on Monday, the Supreme Court declined review of the case, clearing “the way for the public and the press to sit in on arbitration of business disputes in Delaware, when a state judge acts as the arbitrator.” The case is Strine v. Delaware Coalition for Open Government, Inc.
Denniston explains the Delaware legislature had adopted the arbitration experiment because “it was concerned that other nations might be able to attract corporations to organize there by setting up user-friendly, closed systems of business arbitration.”
If the First Amendment provides a right of access to civil proceedings, including arbitrations administered by Chancery Court judges, that’s likely to be less of a draw for the multinationals.