Journal Article

The secret recipe: key ingredients of agreements to protect confidential information

Nigel Parker

in Journal of Intellectual Property Law & Practice

Volume 6, issue 4, pages 223-229
Published in print April 2011 | ISSN: 1747-1532
Published online February 2011 | e-ISSN: 1747-1540 | DOI:
The secret recipe: key ingredients of agreements to protect confidential information

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  • Arbitration
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Legal Context

Agreements that seek to preserve the confidentiality of information are widely used, even though confidential information is protected in many circumstances regardless of whether the disclosing party and receiving party have entered into a confidentiality agreement. It is generally accepted that by entering into a confidentiality agreement information will be better protected. Confidentiality agreements focus the minds of the parties, create specific rights and obligations enforceable in contract and can also bolster a potential claim for breach of confidence in equity.

This article looks at some of the key ingredients of an effective confidentiality agreement.

Key Points

The following key ingredients are identified and discussed: (i) identify the circumstances where a confidentiality agreement is required; (ii) define the information to be protected; (iii) carefully restrict the right to disclose information; (iv) restrict other unwanted use of information; (v) identify the appropriate parties; (vi) set out a framework for protection of information; (vii) define the term (duration) of protection; (viii) watch out for further competition law limitations; and (ix) choose a suitable governing law and jurisdictions; and (x) provide for suitable claims and remedies.


Confidentiality agreements (or clauses) can sometimes be passed over in the course of negotiations, perhaps dismissed as “boiler-plate”. However, if not properly drafted, confidentiality agreements can fall short of expectations. It is even possible to limit the rights a disclosing party might otherwise have at law.

Journal Article.  5099 words. 

Subjects: Arbitration ; Intellectual Property Law

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