In a world where business relations are becoming increasingly international, we are also seeing international law increasingly take center stage. In this context, non-disclosure agreements (NDAs) are a must, potentially strengthening the signatory’s position vis-à-vis their business partner in the event of any legal disputes, the outcome of which is often determined by which country’s laws are applicable.
When it comes time to finalize new commercial ties, be it with domestic or international partners, a non-disclosure agreement should not be overlooked. They can be essential to protecting trade secrets and other confidential information, especially since different legal rules may apply internationally than at the national level.
Despite the considerable leeway that an NDA offers in terms of its content, there are a number of key points that should not be missing from this type of agreement under any circumstances, one of the more obvious of which is the need for the agreement to be based on reciprocity, i.e., it ought to require all business partners involved to maintain confidentiality. What’s more, the parties should be clearly named in the agreement.
Compliance with these kinds of formalities can prove crucial if things descend into legal wrangling. The NDA ought to specify in detail which information is to be regarded as confidential. This can include documents, contracts, as well as other files, but also oral statements. The parties should also agree on how confidential information will be handled, e.g., as regards disclosing the information to third parties and making copies. Reasonable care should be taken to protect trade secrets.
After the NDA has expired or the business relationship has come to an end, any confidential information that has been obtained ought to be returned or (verifiably) destroyed. It is particularly worth paying attention here to how stored data is handled.
It should also be agreed that the party disclosing information remains the sole owner and rights holder.
In addition to setting out provisions regarding the term and termination of the agreement, it is also possible to specify the place of jurisdiction and hence the applicable law. Besides these aspects, there are a number of other points that can be stipulated in the contractual agreement.
Those concerned, whether they be based domestically or internationally, can turn to the team at MTR Legal Rechtsanwälte for advice on drafting an NDA and on other issues relating to international law.
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