It was an objective test that examined the meaning of the words and the “objective purpose of the transaction”. In this regard, the Court of Appeal contradicted the judge and held that the purpose of the agreement was to protect Dorchester from the risks of unauthorized disclosure and circumvention by a party receiving the confidential information. Many big deal agreements are protected from public scrutiny by a language that prohibits the dissemination of contract details. These restrictions, usually in the form of a confidentiality clause or a confidentiality agreement (NDA), are of little use to the library. However, they allow the publisher to hide terms that might otherwise be used by other potential customers. Many libraries have opposed these restrictions in the name of greater transparency. If you are interested in confidentiality clauses or NDAs, here you will find some tips to help you. The revised NDA contains new paragraphs concerning (i) exclusivity agreements with financial service providers, (ii) disclosure to potential financiers, co-investors or consortium members and (iii) data protection provisions (to address concerns that bidders outside the EEA receive personal data in a transaction). However, a recent decision of the Court of Appeal (Dorchester v BNP Paribas) of 7 March 2013 recalls that these agreements are contracts that must be applied like the others. They may have drastic effects, in particular if (as generally agreed) a party agrees to obtain confidentiality from third parties to whom it transmits confidential information. According to the Court of Appeal, the reference to non-circumvention must be accompanied by a certain importance. If BNP had failed to ensure that there were back-to-back agreements with IKEA, it had to bear the consequences of IKEA`s behaviour.
In order to avoid problems of interpretation, the NDA should also clearly define all the derogations provided for in the confidentiality requirements. For example, instead of allowing the disclosure of assessment documents as “mandatory by law”, you should consider the more specific, “in accordance with the legal requirements of a competent judicial, administrative or regulatory authority, for example. B in response to a subpoena or court order, or as securities law or stock exchange rules.” The answers to these questions may vary depending on the type of information disclosed, particularly where the information is personal data (PII) that may require consent to disclosure to these companies or their use in connection with an M&A transaction. The seller or the target should not risk violating data protection legislation or accounting for violations by passing pii to third parties who are not bound by the NDA. Think about what information may be disclosed, which companies disclose that information, and which companies are involved in due diligence or receiving the information. But it is perhaps even more important to illustrate the possible consequences if a party receiving confidential information agrees to third parties signing equivalent terms. . . .