GROUP 5

LECTURER : THS ĐÀO TRỌNG KHÔI

I. INTRODUCTION
1. DEFINITION
A Non-disclosure Agreement (NDA) is a form of agreement
between the employer and the employee, in which the
employee commits not to disclose any secrets or business
information to anyone without the employer's consent.

Types of information that need to be kept confidential:

Information related to business plans and strategies.
Company registration information, including a list of
members/shareholders.
Information about accounting, salary policies, bonuses,
equity, and employee benefits.
2. COMMON One-way NDA: A one-way NDA involves two parties where only
one party (the disclosing party) has the ability to disclose

TYPES OF NDA
certain information to the other party (the receiving party) and
requires that information to be kept confidential for certain
reasons.
2. COMMON Mutual NDA: A mutual NDA involves two
parties where both intend to disclose
information to each other, and each will

TYPES OF be protected if there are unauthorized

further disclosures. This type of NDA is

NDA
common when businesses are
considering joint ventures or mergers.
2. COMMON
TYPES OF NDA
Multilateral NDA: A multilateral NDA involves three or
more parties, where at least one of the parties can
disclose information to the other parties and requires
that information to be kept confidential. This type of
NDA helps eliminate the need for one-way or mutual
NDAs between two parties.
II. KEY ELEMENTS OF
NON-DISCLOSURE
AGREEMENT
1. OBLIGATIONS OF THE PARTIES
Information Provider - Employer
+ Clause 2, Article 21 of the 2019 Labor Code only stipulates that the Employer
has the right to negotiate with the Employee on “benefits” and “compensation
in case of violation”

Information Recipient - Employee

+ Clause 2, Article 387 of the 2015 Civil Code, the information recipient is
responsible for keeping confidential information they receive during the
contract signing process confidential, and must not use this information for
their own purposes or contrary to the provisions of law
+ Clause 2, Article 21 of the 2019 Labor Code, the obligation of the information
recipient is also clearly stated, requiring them to only use confidential
information for the purpose of performing work under the contract and not to
disclose it to a third party without written consent from the information
provider
 2. SCOPE AND
DURATION OF
CONFIDENTIALITY
Clause 2, Article 21 of the 2019
Labor Code, the scope and
duration of confidentiality are
freely agreed upon by the parties,
the law does not set any specific
limits.
3. OWNERSHIP OF INFORMATION

In Clause 1, Article 387 of the 2015 Civil Code: "Confidential

information is information that is not public and has economic
value, protected by the information owner."

In Article 84 of the 2005 Intellectual Property Law (amended

and supplemented in 2019): "Business secret information is
information that is not public and has commercial value,
protected by the information owner."
4. VIOLATIONS AND COMPENSATION
FOR DAMAGES
Violations
Article 128 of the Law on Intellectual Property: The act of disclosing or using
confidential information without the consent of the information owner shall be
considered a violation.
Article 280 of the 2015 Civil Code: If the information recipient violates the
confidentiality obligation and causes damage to the information provider, that party
must compensate for the damage.
Compensation for damages
Clause 2, Article 21 of the 2019 Labor Code: Regulations that if the parties have an
agreement on the protection of business secrets and the information recipient
violates the agreement, the information provider has the right to request
compensation according to the signed agreement.
III. CASE STUDY
Dorchester had provided BNP with confidential information
about the site and should have required BNP to sign a Non-
Disclosure Agreement (NDA) before disclosing further details to
Inter-IKEA. However, instead of asking Inter-IKEA to sign an
additional NDA as agreed, BNP merely sent a simple
introduction letter to Inter-IKEA, revealing critical information
about the property. "Subsequently, Inter-IKEA made a higher bid
than Dorchester and won the tender, causing damages to
Dorchester."

Dorchester sued BNP and Inter-IKEA, accusing them of using its

confidential information to secure the development
opportunity. The case was eventually settled out of court;
however, it serves as a useful illustration of the importance of
safeguarding internal information and drafting effective
confidentiality agreements in business transactions.
 Elements VietNam UK
Confidential information is protected under the Computer
Confidentiality Regulations Governed by the 2015 Civil Code and Commercial
Misuse Act 1990 and Trade Secrets Act; NDAs are
Law; business secrets and commercial information commonly used to protect information in commercial
are protected through NDAs. transactions.

Role of NDA in Transactions NDAs are also legally binding in Vietnam, protecting NDAs are a legal tool to protect business
business information in line with Articles 388 and 563 secrets and internal information; enforceable in
of the Civil Code. court if breached.

Vietnam allows claims for damages from NDA NDA breaches can lead to strict penalties, including
breaches, handling violations under Articles 21, 22 of compensation for damages, contract termination,
Handling NDA Breaches
the Civil Code and Commercial Law. and confidentiality injunctions; cases can be brought
to the High Court or Commercial Court.

Intermediaries in Vietnam are similarly responsible Intermediaries have a duty to maintain

Intermediary confidentiality, and are liable for any leaks of
for maintaining confidentiality under contract and
Responsibility protected information.
legal provisions.

Injured parties can seek compensation for financial Injured parties have the right to claim
losses and lost business opportunities, which may compensation for material losses and lost
Injured Party Rights
include legal costs and additional penalties. business opportunities as per the Civil Code.

Disputes can be resolved in court or through Disputes in Vietnam can be settled through
Dispute Resolution arbitration; the UK has specialized commercial negotiation, mediation, or by filing a lawsuit in
courts and an efficient arbitration system. economic court; arbitration is also a legal
option.
 Judgment No.03/2023/LD-PT

Mr. D is a technician working for TT Company at the NS

Petrochemical Refinery project. He has signed a labor contract
and a confidentiality agreement with the company.
Accordingly, Mr. D has the following obligations:
- Information confidentiality: Comply with and commit to properly
and fully implementing the agreements and terms signed with the
Company in the Non-Competition Information Confidentiality
Agreement.
- Within 12 months from the date of ceasing to be an employee of
the Company, do not work or collaborate with any
individual/unit/enterprise/company in any form to work or carry
out any project at the NS Petrochemical Refinery Company Limited
factory.

On March 1, 2021, Mr. D quit his job at TT Company. On June 15,

2021, Mr. D signed a labor contract with NS Petrochemical
Refinery Company Limited.
 Elements VietNam China

Article 35 of the Vietnamese Constitution protects Chinese law does not have a direct
Provisions on freedom of choice
the right to freely choose a career and workplace. equivalent to Article 35 of the Vietnamese
of occupation
Constitution.

Provisions on employment The Vietnamese Labor Code (Articles 5 and 10) Article 24 of the Chinese Labor Law allows
contracts and confidentiality protects employees' right to freely choose their jobs confidentiality and non-compete agreements,
agreements without undue restrictions. as long as they do not violate other laws.

Employment contracts should not excessively restrict

Non-compete agreements are enforceable if
the employee's right to choose their job. Any non-
Non-compete agreements they clearly define scope, duration, and
compete clause must be reasonable and not
territory, and comply with Chinese law.
infringe on personal interests.

TT Company can require Mr. D not to work for

TT Company cannot prevent Mr. D from working for
Scope of restraint of another company for up to 12 months after
another company unless there is evidence of a
competition leaving, as long as the agreement is legal and
breach of confidentiality provisions.
within legal limits.

Employees have the right to freely choose their jobs Employees can be bound by restrictive
without illegal restrictions. Any agreement must be agreements for a certain period of time,
Employee rights
reasonable and not cause harm to personal provided that the contract is legally concluded
interests. and does not harm their legitimate rights.

The company cannot prove any breach of contract TT Company can request Mr. D to pay
Scope of dispute or disclosure of confidential information in Mr. D’s compensation if he violates the non-
case competition or confidentiality provisions.
 GROUP 5

IV. WHY VIETNAM DOES NOT

HAVE SPECIFIC REGULATIONS
ON CONFIDENTIALITY
AGREEMENTS?
 THE LAW IS NOT FULLY
1 DEVELOPED ON NDAS

Currently, in the Vietnamese legal system,

the provisions on confidentiality agreements
have not been institutionalized into a
separatlaw. However, general contractual
principles still apply to NDAs

Article 387/ Civil Code 2015: stipulates

general principles on information in entering
into contracts, including the rights and
obligations of the parties in the protection of
confidential information
2
THE MARKET AND BUSINESSES
HAVE NOT HAD GREAT DEMAND

In developed countries such as the United

States or Japan, many small businesses have a
high demand for NDAs because they often
develop highly innovative products or services
that require the protection of intellectual
property and business information.

In contrast, many small and medium-sized

enterprises in Vietnam operate in the fields of
manufacturing, retail, or services. These
industries do not have a high demand for
intellectual property protection or business
information security.
2
THE MARKET AND BUSINESSES
HAVE NOT HAD GREAT DEMAND

For example, a household goods

manufacturing business in Bat Trang craft
village mainly focuses on producing and
exporting handmade porcelain. Instead of
creating exclusive designs, this business
often produces orders from foreign
partners. Therefore, they do not need to
use NDAs during the cooperation process,
because their products do not contain
sensitive information or high intellectual
property that needs to be protected.
 REFERENCE
1. Luật sư Việt Nam. (2019). Một số vấn đề về thỏa thuận bảo vệ bí mật kinh doanh, bí mật công nghệ giữa người
lao động và người sử dụng lao động theo quy định của Bộ luật Lao động năm 2019. LSVN. https://lsvn.vn/mot-
so-van-de-ve-thoa-thuan-bao-ve-bi-mat-kinh-doanh-bi-mat-cong-nghe-giua-nguoi-lao-dong-va-
nguoi-su-dung-lao-dong-theo-quy-dinh-cua-bo-luat-lao-dong-nam-20191624369973-a105439.html
2. Quốc hội. (2019). Bộ luật Lao động 2019. https://thuvienphapluat.vn/van-ban/Lao-dong-Tien-luong/Bo-luat-
Lao-dong-2019-404066.aspx
3. Quốc hội. (2015). Bộ luật Dân sự 2015. https://thuvienphapluat.vn/van-ban/Dan-su/Bo-luat-Dan-su-2015-
290202.aspx
4. Quốc hội. (2017). Luật Chuyển giao công nghệ 2017. https://thuvienphapluat.vn/van-ban/Thuong-mai/Luat-
chuyen-giao-cong-nghe-2017-322937.aspx
5. Quốc hội. (2005). Luật Sở hữu trí tuệ. https://thuvienphapluat.vn/van-ban/so-huu-tri-tue/Luat-So-huu-tri-tue-
2005-50-2005-QH11-7022.aspx
6. Quốc hội. (2015). Bộ luật Hình sự 2015. https://thuvienphapluat.vn/van-ban/Hinh-su/Bo-luat-Hinh-su-2015-
292164.aspx
7. Lê Trần Law. "Tranh Chấp Về Cam Kết Bảo Mật Trong Thỏa Thuận Không Cạnh Tranh." Lê Trần Law,
www.letranlaw.com/vi/insights/tranh-chap-ve-cam-ket-bao-mat-thoa-thuan-khong-canh-tranh/
 GROUP 5

THANK YOU