In 2009, the Delaware State Legislature amended the rules governing the resolution of disputes in the Court of Chancery. The law gave chancery judges the power to privately arbitrate business disputes when agreed to by the parties. The dispute must involve at least one business entity and one party must be a citizen of Delaware. Business disputes involving consumers could not be submitted to the program. If the only remedy sought was monetary relief, the amount in controversy must exceed one million dollars.

On January 5, 2010, the Chancery Court adopted rules governing administration of the program. The rules, mirroring the wording of the legislation, provided that the arbitrator would be a sitting judge of the Chancery Court, and the arbitration would be conducted at the courthouse out of public view. To maintain the confidentiality of the proceedings, the arbitrator’s final award could not be made public.

In October 2011, the Delaware Coalition for Open Government (Coalition) filed suit, challenging the secrecy of the proceedings. The Coalition argued that the proceedings violated the First Amendment’s requirement that the public have qualified access to civil and criminal trials. The Chancery Court countered by claiming that the program was pure arbitration and distinct from a civil trial.

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