“You Might Think Your Arbitration Is Confidential…But, In Delaware, The Court Will Decide”

Arbitration is intended to be private. Unlike a court trial, arbitration occurs in a conference room, with no right of the public to enter. Privacy, however, is different than confidentiality. Unless the parties have an agreement specifically providing that they cannot discuss what transpired, or publicly distribute the transcript or exhibits generated during the arbitration, what transpires in an arbitration room does not necessarily stay in the arbitration room.

Also, a party seeking to judicially confirm or vacate an arbitration award may find it helpful or necessary to include in their public filings copies of exhibits or transcript passages. Even if one or both parties desire that information to be sealed from public view, there is another voice–the judge–who is required to consider the public’s interest in transparency.

A recent example is presented by the Delaware Chancery Court’s decision in Soligenix, Inc. v. Emergent Prod. Dev. Gaithersburg, Inc., discussed in this article by Sidley attorneys Ana Blinder and Alex Kaplan.

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