NON-DISCLOSURE AGREEMENT UNDER UKRAINIAN LAW: FEATURES AND LEGAL NATURE
Authors: Ogonovskyi Oleg 
Published: July 2023

Legal features of the Non-disclosure Agreement, concluded in order to ensure maximum protection of confidential information and commercial secret, are analyzed in this publication. It is confirmed that special attention shall be paid to the conclusion of such contracts within activity of IT companies, especially in the context of special legal regime «Diia City», introduced in Ukraine. It is established that the current legislation of Ukraine related to the regulation of Non-disclosure Agreements is not developed well enough, as before the Law of Ukraine «On Stimulating the Development of the Digital Economy in Ukraine» was adopted, there had been no mentions concerning the possibility of concluding relevant agreements in the national laws. It is proven that the legal nature of the Non-disclosure Agreement is based on the negative obligations, according to which one party shall be entitled to demand the fulfilment of obligations by the other contractual party, consisting in the passive behavior of the subject obliged. The main features of the Non-disclosure Agreement, that directly follow from their legal nature and are related to the subject composition, form of its conclusion, payment procedure and responsibility for its violation, are analyzed in this article. It is established that the introduction into the legislation of Ukraine of the provisions on the possibility of entering into a Non-disclosure Agreement on paid basis is a generally positive step and will be able to ensure the interests of the recipient of information in a full fulfilment of its obligations related to the non-disclosure of confidential information. It is substantiated that the legal construction of compensation procedure for damages in case of violation of the terms of the Non-disclosure Agreement shall be a necessary guarantee for the party disclosing the information and a guarantee for ensuring its legal rights and interests. It is determined that the essential conditions of the Non-disclosure Agreement under the legislation of Ukraine are the definition of direct information that is subject to legal protection as well as defining of a specific period in time within which the relevant information will be the object of legal protection. It is proven that the introduction of relevant general provisions on the procedure of concluding and the peculiarities of legal regulation of Non-disclosure Agreements into the Civil Code of Ukraine will contribute to legal certainty for participants of civil legal relations as well as guarantee protection of their legal rights and interests in case of the breach of contractual obligations by the party, to which the confidential information was disclosed. It is argued that certain provisions of the Law of Ukraine «On Stimulating the Development of the Digital Economy in Ukraine» can be successfully implemented into other acts of national legislation in the future in order to spread the practice of Non-disclosure Agreements conclusion not only within the field of relations with high-tech companies, but also in all other spheres of social life.