By Dr. Karl Friedrich Dumoulin, FPS Rechtsanwälte & Notare
Confidentiality clauses are widely used in M&A and IP transactions as well as in cooperation agreements between high-tech companies and also in arbitration and mediation agreements. Therein, the parties involved usually undertake not to disclose certain confidential information disclosed by the other party in the formation of the agreement. Moreover, it is often the case that the parties also undertake not to make use of certain evidence made known in the transaction. If, at a later date, certain elements of the transaction become contentious between the parties and the case goes to court, the question arises whether and to what extent the parties and the court are bound by the confidentiality agreement, i.e. whether a party is permitted to submit to the court certain information or evidence defined as confidential in the agreement.