Abstract
It is inconceivable that a person can be legally obliged to provide influential information to another party in order to contract freely and in an enlightened manner without requiring the latter to maintain the confidentiality of the exchanged information between the parties. In this context, Article 2.1.16 of the UNIDROIT principles of International Commercial Contracts and Article 1112-2 of the French Decree N 131-2016, etc. tend to apply the obligation to confidentiality of information at the pre-contracting phase as one of the most substantial principles governing this phase. However, the Palestinian legislature, having ignored enacting legal provisions obliging the parties to maintain the confidentiality of information in the pre-contracting phase, caused legislative deficiencies in the legislative remedies of the subject of confidentiality of information in the pre-contracting phase. A such, as a prime objective, this paper seeks to suggest orientations for the formulation of provisions for the obligation to maintain confidentiality of information in the Palestinian Civil Code Draft. Thus, an analytical comparative approach -with the French civil code- is used, while alluding briefly to German and English law, as to illustrate the Palestinian legislative deficiencies and the urgent need to legislate a legal article obligating the negotiating parties to maintain confidentiality of information, in order to contribute to the stability of civil and commercial transactions. In this regard, contractual equilibrium entails that the obligation to maintain confidentiality of information has its own independent essence from all the theories that the jurisprudence adopted as a legal basis for this obligation.
Highlights
In order to take into account the various aspects of this obligation, we are required to study the concept of the obligation to confidentiality of information and the position of the legal legislations and conventions in terms of imposing it as an obligation, and determining its role in ensuring contractual equilibrium between the parties in the pre-contracting phase and determining the scope of this obligation and the guarantees of its implementation
As for Palestinian legislations, we find that the PDCC is devoid of any provisions governing the contractual negotiation phase or any provisions imposing the obligation of behaving in good faith at this phase, or any provision imposing the duty of disclosure and information as mentioned, or the obligation to confidentiality of information
Part of the legal jurisprudence went on to consider the provisions of tort liability as the legal basis for imposing the obligation to maintain the confidentiality of information, on the grounds of the absence of any contract governing the matter, and on the foundation that the disclosure or use of confidential information without the prior authorisation of the possessor constituted a breach of a general obligation of the law, which is not to cause harm to others
Summary
Recent industrial and technological developments have resulted in new types of contracts, involving important technical or technological secrecy issues, such as: contracts of technology transfer, construction and engineering contracts, technical assistance contracts, computer software manufacturing contracts, and turn-key contracts. Thereby, the conclusion of such contracts requires long and arduous negotiations, through which many. If the confidential information itself is the subject of the contract to be concluded, as in technology transfer contracts, the party who is requesting this technology will always seek to obtain such information. This is so in order to assess the appropriateness of such information to his project, purpose of contracting, and the amount of damage that it may cause as a result of its use, especially to the environment. The possessor of the technical or technological knowledge is always keen during the negotiation phase that the recipient of confidential information should not disclose this information to others or use it for his personal benefit without prior permission.. In order to take into account the various aspects of this obligation, we are required to study the concept of the obligation to confidentiality of information and the position of the legal legislations and conventions in terms of imposing it as an obligation, and determining its role in ensuring contractual equilibrium between the parties in the pre-contracting phase and determining the scope of this obligation and the guarantees of its implementation
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