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Thai Contract Law: Non-Disclosure Agreements in Thailand

Transcript of the above video:

In this video today, as the title suggests, we are going to briefly discuss non-disclosure agreements here in the Kingdom of Thailand. Again as noted I am an American Attorney and the Managing Director of The Firm. I generally tend to act as the liaison in matters pertaining to Thai Law specifically. We have attorneys on staff here at the firm to assist in the specifics of, for example the drafting of a Non-disclosure Agreement.

This video is simply here to provide sort of a brief overview of Non-disclosure Agreements  sort of generally and provide a little bit of insight to the viewer about you know how they're going to work and the steps that one is probably going to want you take with respect to getting a Non-disclosure Agreement drafted. So the first thing to think about with respect to Non-disclosure Agreements is this. Unlike Non-compete Agreements here in the Kingdom, Non-disclosure Agreements are kind of a horse of a different color. As noted in a prior video on this channel with respect to Non-compete Agreements, Thai Law tends to take a less than rosy view with respect to Non-compete Agreements basically based on a paradigm of free movement of labor, for lack of a better term. With respect to Non-disclosure Agreements, we are talking about a horse of a different color especially where the non-disclosure to change to things like patents owned by a given company or individual, trademarks, trade secrets, trade names and just basically general specific information to a given industry  that may only be had by one given company or one given individual. My opinion seems to be a general impetus to go ahead and protect such information at least in the legal framework because doing so especially by those who have consented to not disclose that information, doing so is going to be better for the business community as a whole, for lack of a better term; it is kind of a policy perspective. If you couldn't rely on a Non-disclosure Agreement with respect to say the formula for making Coca-Cola, I am just pulling that out of the air, it will be very difficult to run a business selling Coca-Cola because one would be constantly looking over their shoulder worried that that specific trade secret would be stolen. So for that reason this jurisdiction at least from my outsider's legal perspective, much like many other jurisdictions I think takes the view that, look we want to encourage business and there are going to be certain types of information that need to be kept secret in order to maintain the competitive advantage of a given business and someone who has not been involved in the creation of that intellectual property or the creation of that information, whatever you want to call it, someone who has not been privy to that, is not really in a position to be able to enjoy the benefits of that information or that intellectual property by windfall. This is especially the case where an individual consents by signing a Non-disclosure Agreement to basically being restricted with respect to how they can disclose that information or if they can disclose or use that information at all. That being said, with respect Non-disclosure Agreement generally, it should be noted that it is a good idea to have these agreements drafted correctly so as to ensure that they are as binding as they can be on the person or entity involved and also there's a transparency issue and also I think there's a good business aspect at play here too where it is simply a matter of, “look we as the party holding the information that we want kept confidential, we want to be very clear as to what we want to be kept confidential and also we want to be clear as to our relationship with the counterparty. We don't really want to create a bunch of friction and drama if you will, controversy down the road based on flying accusations of disclosure etc. Let's just set a framework at the outset so everyone understands where they stand and everyone understands exactly what information is considered confidential and therefore subject to Non-disclosure Agreement, NDA, and we will go from there”. So it is a good idea to have a legal professional draft up one of these instruments. It is also a good idea to understand what one is trying to protect from the outset so as to best place themselves in a position to not only be as transparent as possible with their counter party as to what exactly is being protected but also to just forestall any  unpleasantness down the road.