In our next post on the EU Trade Secrets Directive 2016/943, we turn to the Netherlands. In the Netherlands, the EU Trade Secrets Directive was implemented in 2018 by the Act on the Protection of Trade Secrets (Wet bescherming bedrijfsgeheimen) and led to amendments to Dutch procedural law including those related to confidentiality clubs. For example, access to alleged trade secrets introduced in proceedings is granted to at least one person of the opposing party and that party’s lawyer under confidentiality restrictions. (Article 1019ib, Dutch Code of Civil Procedure). Depending on the nature of the trade secret, however, the court may order that access to certain documents be limited to only a lawyer or another authorized representative but not a representative of the opposing party. (Article 22a(3), Dutch Code of Civil Procedure).

Recently, the Dutch Court of Appeal addressed confidentiality clubs and extended the reach of Article 1019ib to trademark infringement proceedings (and thereby presumably would do so in other intellectual property disputes). The alleged infringer in that case indicated that it could only respond to comments from the trademark holder by reference to confidential supply chain documents. In view of the confidential nature of this information, the Court of Appeal ordered that access to these confidential documents be limited to a confidentiality club of one person within the trademark owner company and one lawyer. The Court of Appeal also decided that the members of the confidentiality club could share the confidential documents with others, provided that the confidential information contained therein would be removed. These confidentiality obligations were made subject to a penalty payment of € 300,000 for each violation, up to a maximum of € 3,000,000.

Also in Belgium the Trade Secrets Directive required the amendment of the national procedural law. The Belgian Act of 30 July 2018 on the Protection of Trade Secrets provides for the safeguarding of trade secrets in legal proceedings, either relating to the unlawful acquisition, use or disclosure of trade secrets, or, more broadly, in any proceedings in which a trade secret is invoked as a remedy. It is at the Belgian courts’ discretion to impose measures, such as a confidentiality club, to safeguard confidentiality (during, as well as after the proceedings). Specifically, the Belgian Act provides that a judge can limit the access to confidential documents to specific persons or categories of persons. Contrary to the framework in the Netherlands, however, the confidentiality club must always consist of at least one representative of each party and the parties’ attorneys.

We next explore how confidentiality issues play out in the context of arbitration, not litigation…