The ICC Commission on Commercial Law and Practice (CLP) Task Force on Confidentiality Agreements first prepared the ICC Model Confidentiality Agreement and ICC Model Confidentiality Clause in 2006, in response to a request from a large number of companies that had expressed a need for a global, cross-sectoral confidentiality agreement. The 2006 models were recently updated to reflect changes in practice.

Protecting all kinds of confidential business information (be it technical, commercial or financial) is a legitimate business concern in various industries and branches of trade and arises in relation to a variety of business transactions. Confidentiality agreements are often concluded prior to passing on any confidential information and many international contracts contain general confidentiality clauses.

There are many models in use; each company tends to treat its own confidentiality agreement with great pride and possessiveness, which causes delays, discussions, negotiations and higher transaction costs.

The ICC Model Confidentiality Agreement and the ICC Model Confidentiality Clause 2016 attempt to provide to industry and commerce a common platform for confidentiality obligations, which may be acceptable in various industries and transactions or, at least, reduce the scope of discussions and negotiations regarding confidentiality agreements and clauses.

Notwithstanding the obvious advantages of standardization, a number of qualifications must be made.

First, the two models presented here have not been drafted with any particular industries in mind and the models may have to be adjusted to reflect the specific needs of certain industries.

Second, the two models have been designed to apply to a wide variety of situations, but may well need adaptation for certain specific contracts or to better reflect the particular nature of certain transactions.

These two elements are reflected in the following chart:

[Page8:]

In addition to the two qualifications above, three more elements may be noted.

First, the ICC Model Confidentiality Agreement and the ICC Model Confidentiality Clause contain, of course, non-mandatory provisions and parties considering using these models may thus depart from any of their provisions. In this respect, the Task Force has attempted to strike a fair balance between the interests of the Disclosing Party and the Receiving Party, but the parties, on the basis of their respective bargaining positions or for any other reason, may opt for other solutions.

Second, both models have been drafted in order to accommodate business parties in different jurisdictions and, thus, may provide a common platform for parties from different countries. However, the parties are advised always to consult local counsel to have the models reviewed against any applicable rules (such as contract law rules or regulatory rules such as export control rules).

Third, the Task Force has refrained from specifically addressing questions as to third party effects of the two models presented, because these effects were considered to be too different from one jurisdiction to another. Thus, it is recommended always to consult local counsel to reflect upon proper contract language and mechanisms where it is desired to bind third parties to confidentiality obligations, or to achieve any other third party effects (such as specific confidentiality agreements with third parties or accessions or assignments to have similar effects).