Sekretessavtals verkningar och effekter i skiljeförfarande

Sammanfattning: In contract negotiations between commercial parties, it may be necessary to disclose confidential information to establish a contractual relationship. Information and knowledge are often key assets of a business, and the ability to protect these assets may be crucial for the contracting parties. In this respect, confidentiality agreements play an important role in commercial relationships. In the event of a dispute regarding the contractual relationship, the parties have an interest in letting the confidentiality agreement have an impact in the litigation process. The main focus of this study is to examine the extent to which arbitrators or a court will take a confidentiality agreement into account and, in particular, the civil and procedural consequences and general effects of such an agreement in a dispute.

Initially, the purpose of confidentiality agreements is discussed, as well as the protection of confidential information granted by law and general principles of law. The conclusion reached, is that confidentiality agreements are mainly entered into in order to protect information in contractual relationships and to control how the information is used. In addition, the protection provided by FHL and the general duty of confidentiality, as an outcome of the principle of good faith in contract law, is looked into. The inquiry shows that the scope, of both the general duty of confidentiality and the concept of trade secrets, could be questioned. Thus, it is uncertain how far the duty to keep information confidential extends, and due to this uncertainty, there is also a risk that some confidential information may not fall under the protection. However, in NJA 2000 p 538 the Supreme Court held that under Swedish law there is no general duty of confidentiality in arbitral proceedings unless the parties enter into a specific agreement of confidentiality.

The procedural effects of a confidentiality agreement are discussed in relation to the framework of arbitral proceedings, the parties’ ability to protect confidential information as well as to regulate the extent to which such information may be used as evidence. By choosing arbitration as the dispute resolution form, the parties may exercise more control over the procedure to ensure that confidentiality will be maintained. If one of the parties makes a request for evidence to be taken by a civil court, the parties lose this control. In the light of the Swedish principle of public access, and the protection of confidential information provided by civil procedural rules, the confidentiality agreement will not have any impact in the case of a civil court’s assistance in arbitral proceedings. Instead, the parties have to rely upon the court’s decision to apply the procedural rules in RB and OSL to provide protection for confidential information. If the court waives to apply any of these protection rules, the content of the evidence provided is considered public, and therefore, accessible to anyone. This means, that the duty of confidentiality is considered broken in respect of that part of the agreement.

If there is a risk that a party will breach the confidentiality agreement by presenting confidential information as evidence, there is a possibility that the contract will affect the party’s ability to effectively make their case and to introduce evidence in the dispute. In this respect, the confidentiality agreement, as a purely civil agreement, will have procedural implications in terms of restrictions on evidence. Since arbitral proceedings are characterized by the principle of party autonomy, there is a greater possibility that an arbitration tribunal will allow agreements limiting a party’s right to introduce evidence. However, the principle of party autonomy is limited by the adversarial principle, i.e. a party must be given sufficient opportunity to present their case. Otherwise, the arbitrator’s decision to reject confidential information as evidence could constitute a right to appeal the arbitral award. In order to avoid such an appeal, the possibility of the tribunal to accept the evidence is discussed, and to give confidential information a lower value when assessing the evidence, with reference to the common will of the parties to keep such information confidential. On the contrary, a court will not be bound by the parties’ common interest of keeping certain information confidential. An objection made by a party, that confidential information shall be rejected, would therefore not be considered by the court.

Furthermore, the thesis contains a discussion of possible civil effects of confidentiality agreements and, in particular, whether an introduction of confidential information as evidence constitutes a breach of contract. According to the principle that a party’s actions within the proceeding shall not be given any effect outside the process in which they are undertaken, the introduction of confidential information as evidence, at least in most cases, will not provide a basis for liability. Due to the procedural safeguards that govern judicial proceedings, it will be difficult to prove that a legally recognized damage has occurred. It is, however, possible to argue for liability in cases where it is evident that a party has only introduced confidential information as evidence in order to break the duty of confidentiality, and where it is equally evident that the evidence introduced is irrelevant to the question in dispute.

The conclusion reached is that the parties have a limited ability to influence the procedural framework of arbitral proceedings, particularly when assistance of the court is required. These limitations have great significance for the impact and effects of confidentiality agreements in civil litigation. Hence, the fundamental principle of freedom of contract is limited by the fact that Swedish law imposes certain fundamental procedural safeguards, which must be guaranteed. The conclusion is therefore that confidential agreements probably have more of a practical effect by constituting an incentive for the parties to let the duty of confidentiality govern their conduct in the event of civil litigation.