“The parties’ confidentiality clause has an implied definite duration. More specifically, this mutual confidentiality obligation of the parties reaches its maximum duration when the information loses its confidential nature or the legitimate interest in maintaining the confidentiality disappears.”

In its judgment dated 21 November 2022, the 𝐜𝐨𝐮𝐫𝐭 𝐨𝐟 𝐚𝐩𝐩𝐞𝐚𝐥 𝐨𝐟 𝐀𝐧𝐭𝐰𝐞𝐫𝐩 ruled on a confidentiality clause in a share purchase agreement without an explicit time limitation on the basis of the interpretation provisions contained in articles 1156-1157 of the old Belgian Civil Code. According to the Court, the interpretation of such a confidentiality clause as an obligation with an indefinite duration is contrary to article 1157 of the old Belgian Civil Code and does not reflect the common intention of the parties.

👉 Want to learn more about this judgement and other key Belgian M&A cases from 𝐭𝐡𝐞 𝐩𝐚𝐬𝐭 𝟐𝟓 𝐲𝐞𝐚𝐫𝐬? You can find them all here, together with our related annotations.

📊By the way, did you know that 𝐭𝐡𝐞 𝟓𝐭𝐡 𝐞𝐝𝐢𝐭𝐢𝐨𝐧 𝐨𝐟 𝐭𝐡𝐞 𝐌&𝐀 𝐒𝐮𝐫𝐯𝐞𝐲 shows that it is common practice to sign a non-disclosure agreement (NDA) at the start of the negotiations (especially in larger transactions) and that the duration of the confidentiality obligation in NDAs is typically 2 years? We will be organizing a 𝟔𝐭𝐡 𝐞𝐝𝐢𝐭𝐢𝐨𝐧 𝐨𝐟 𝐭𝐡𝐞 𝐌&𝐀 𝐒𝐮𝐫𝐯𝐞𝐲 this year. Leave your contact details on this form to participate and help us find out whether this trend has continued.

👉 Need help with drafting your next NDA? You can find several fully automated NDA templates using the tool developed by the BVA | Belgian Venture Capital & Private Equity Association here: https://lnkd.in/eJ3b9RsM.

Follow along with our corporate and M&A team as we highlight more interesting case law in the coming weeks!

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