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In Quest of the Arbitration Trifecta, or Closed Door Litigation?: The Delaware Arbitration Program | Author: Thomas J. Stipanowich

In Quest of the Arbitration Trifecta, or Closed Door Litigation?: The Delaware Arbitration Program | Author: Thomas J. Stipanowich

Recently, a minor tempest has been raging over the Delaware Arbitration Program, which attempts to marry one of America’s premier business courts to the fundamentally more private consensual adjudicative alternative, binding arbitration. At a time when commercial parties face potentially long delays in underfunded courts, but harbor mixed views about arbitration, Delaware’s unique concoction ostensibly offers a veritable trifecta of procedural advantages. These include: (1) a first-rate adjudicator practiced at applying the law to complex factual scenarios, (2) efficient case management and short cycle time and, above all, (3) a proceeding cloaked in secrecy. For the State of Delaware, the Program represents yet another enticement to businesses to select Delaware as the forum of choice, and even suggests the jurisdiction’s pretensions as a potential competitor in the global arbitration sweepstakes. For judges sitting in Delaware’s Court of Chancery, moreover, it is a sterling entrée into a post-judicial career as an arbitrator and mediator—the retirement plan du jour for American judges…

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