Governing Law and Venue

NDA

Governing Law and Venue

The selection of governing law and the designation of a specific tribunal to preside over disputes hold particular importance when it comes to NDAs, as different jurisdictions may vary considerably in terms of how they interpret and enforce confidentiality obligations.

Exception for Injunctive Relief

Whatever law/jurisdiction is eventually agreed to by the parties, a standard exception arises when an aggrieved party seeks injunctive or other equitable relief:

Exemplar N11-1

Each of the parties irrevocably consents to the exclusive personal jurisdiction of the federal and state courts located in California, as applicable, for any matter arising out of or relating to this Agreement. Additionally, notwithstanding anything in the foregoing to the contrary, a claim for equitable relief arising out of or related to this Agreement may be brought in any court of competent jurisdiction.

Exemplar N11-2

Neither party will commence or prosecute any claim, action, suit, or proceeding relating to this Agreement other than in the courts set forth in the preceding sentence, except that either party may seek injunctive, equitable or similar relief from any court of competent jurisdiction.

Exemplar N11-3

This Agreement shall be governed by and construed in accordance with the laws of Sweden without giving effect to any principles of law, which would result in the application of laws of any other jurisdiction. Notwithstanding the foregoing, each Party recognizes that its remedy at law for any breach of this Agreement would necessarily be inadequate and incapable of reasonable calculation and each Party thus stipulates that in the event of any such breach it shall be entitled to appropriate equitable relief, whether temporary or final, or specific performance, from any court of competent jurisdiction.

Exemplar N11-4

This Agreement shall be governed by English law and the Parties agree in respect of it to submit to the exclusive jurisdiction of the English Courts. However, nothing in this Agreement shall prevent either Party from applying to any other court for injunctive relief or for specific performance or for the enforcement or execution of any judgment or court order.

Exemplar N11-5

Any conflict or dispute or inconsistency arisen from this Agreement which cannot be amicably resolved, the Parties agree to file the case to the mediation process or file a lawsuit at the court of competent jurisdiction in Singapore. All proceedings will be conducted in English. Notwithstanding the foregoing, each Party shall be entitled to seek injunctive relief at any time in any court of competent jurisdiction for any threatened or actual breach by the other Party.

Exemplar N11-6

This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of Oklahoma, without reference to the principles of conflict of laws. Legal action solely for injunctive relief may be brought in any court of competent jurisdiction. All other lawsuits brought by either party regarding the disclosing party’s INFORMATION shall only be brought in a court of competent jurisdiction in the State of Oklahoma.

Exemplar N11-7

This Agreement shall be governed by and interpreted in accordance with the laws of England. Any dispute that arises out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be determined by the English courts and the parties hereby submit to the exclusive jurisdiction of the English courts for such purpose, without prejudice to the right of either party to apply to any court of competent jurisdiction for emergency, injunctive or interim remedies.

The following exemplar permits the tribunal considering a request for equitable relief to apply its own law (rather than per the NDA or conflicts-of-laws rules):

Exemplar N11-8

The Parties acknowledge that the disclosure or use of Confidential Information in violation of this Agreement could cause irreparable harm for which monetary damages may be difficult to ascertain or may constitute an inadequate remedy. Each Party, therefore, agrees that a Disclosing Party shall be entitled, in addition to its other rights or remedies, to seek injunctive relief for any violation or threatened violation of this Agreement by a Receiving Party without the filing or posting of any bond or surety. The Disclosing Party may seek a temporary and/or permanent injunction from any court or other authority having competent jurisdiction. Notwithstanding that this Agreement is governed by the laws of the State of Missouri, a court or other authority hearing an application for injunctive relief may apply the law of the jurisdiction where the court or other authority is located in determining whether to grant the injunction.

As a compromise to resolving a governing law/jurisdiction dispute, a party may negotiate a limited right to seek injunctive relief in a particular jurisdiction agreeable to both parties rather than to try to obtain an open-ended carve-out:

Exemplar N11-9

This Agreement shall be governed by and construed in accordance with the laws of Ontario, Canada. Notwithstanding the foregoing, the Receiving Party acknowledges that Disclosing Party has the right to seek injunctive relief from the Courts located in Kentucky, USA or any other jurisdiction where any Project-related activities are taking place that result, or are likely to result, in a breach by Receiving Party of the covenants contained in this Agreement.

Actual or Anticipated Breach

The injunctive-relief exception is often employed where a party needs to enforce its rights under an NDA:

Exemplar N11-10

This AGREEMENT will be governed by the laws of the State of California without reference to conflict of laws principles, if any. Any dispute between the parties hereto arising out of or in connection with this AGREEMENT will be resolved by arbitration. Such arbitration will be held in San Francisco, California in accordance with the then-governing arbitration rules of the International Chamber of Commerce, and conducted in the English language. The arbitration award will be final and binding upon the parties, and judgment upon such award may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, in case of a dispute with respect to a breach by either party of the confidentiality obligations hereunder, the other party may seek injunctive relief (temporary or permanent) in any court of competent jurisdiction. This Subsection (d) will survive the expiration or termination of this AGREEMENT.

Intellectual Property

The following exemplars reflect a carve-out when the need to protect intellectual property is at stake:

Exemplar N11-11

This Agreement shall be governed by and construed in accordance with the laws of the Republic of Korea, without regard to conflicts of laws provision thereof. Any and all controversies or claims of any nature arising out of or relating to this Agreement or the breach, termination or validity thereof, whether based on contract, tort, statute, fraud, misrepresentation or any other legal or equitable theory (the "Claim") shall be resolved solely and exclusively by arbitration to be held in Seoul, the Republic of Korea, and conducted in English under the Rules of Arbitration of the International Chamber of Commerce; provided, however, that each party may file any action necessary to enforce its or its affiliates’ intellectual property rights in any court of competent jurisdiction, including but not limited to equitable relief.

Exemplar N11-12

Notwithstanding anything to the contrary in this Agreement, and in addition to all other remedies, the parties (i) may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief to stop or prevent the unauthorized disclosure of such party's Confidential Information, and (ii) shall not be restricted nor limited from submitting any patent matters to the International Trade Commission or from bringing any action for infringement or misappropriation of intellectual property rights in any court of competent jurisdiction.

Preserve Status Quo

In the following exemplar, the injunctive-relief exception is not allowed to trump the general jurisdictional term entirely, but is used only to preserve the status quo:

Exemplar N11-13

Each Party shall be entitled to seek necessary and appropriate injunctive relief to maintain the status quo depending on the outcome of the arbitration or any other temporary measures from the courts of competent jurisdiction to enjoin the other Party from taking certain actions which may infringe on the rights of the Party bringing such claim, provided that any proceedings and decisions as to the merits of the dispute, including permanent injunctions, are exclusively governed and resolved by arbitration in accordance with this Agreement.

Exception to Mandatory Dispute-Resolution Process

The following exemplars specifically exempt a party from following the prescribed dispute-resolution process where the party seeks immediate injunctive relief:

Exemplar N11-14

If any claim or dispute arising hereunder is not resolved through such negotiations within thirty days following written presentment, either Party may, upon giving the other Party at least ten days prior written notice, initiate litigation submitting such claims or disputes for decision by a court of competent jurisdiction within the venue stated in paragraph A., above, in accordance with the rules of that court and laws of that jurisdiction. Notwithstanding the foregoing, either Party may, at its option and at any time during the dispute resolution process, seek injunctive relief (including, but not limited to preliminary injunctive relief). Each party irrevocably waives its rights to trial by jury in any action or proceeding arising out of or relating to this Agreement or the transactions relating to its subject matter.

Exemplar N11-15

Any claims or disputes arising out of or in connection with or relating to this Agreement shall be finally settled by arbitration under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. All proceedings shall be held in English. The arbitration proceedings will be conducted in Helsinki, Finland. The foregoing provisions shall however in no way limit the rights of a Party under this Agreement to seek a precautionary measure vis-à-vis Confidential Information from a court of competent jurisdiction.

Exemplar N11-16

If any dispute shall arise between the Author and the Publisher regarding this Agreement, the Publisher and Author will first attempt to resolve such dispute through mediation, and, if that fails, such dispute shall be referred to binding private arbitration in Houston, TX, in accordance with the Rules of the American Arbitration Association, and any arbitration award shall be fully enforceable as a judgment in any court of competent jurisdiction. Notwithstanding the foregoing, the parties shall have the right to conduct reasonable discovery as permitted by the arbitrator(s) and the right to seek temporary, preliminary, and permanent injunctive relief in any court of competent jurisdiction during the pendency of the arbitration or to enforce the terms of an arbitration award.

Exemplar N11-17

This Agreement shall be governed by and construed in accordance with the laws of California, USA. The parties will attempt to resolve all disputes arising out of or in connection with this Agreement by negotiation in good faith. If the parties cannot resolve the dispute by negotiation within 30 days from the date of notification by either party of the dispute, or within a mutually acceptable period, then either party may refer the dispute to a single arbitrator through the American Arbitration Association, San Francisco, California, under its Commercial Arbitration Rules. The arbitration will be held in Richardson, Texas, or any other location mutually agreed in writing by the parties. The decision of the arbitrator is binding on the parties. Either party may seek enforcement of the arbitrator's decision in any court of competent jurisdiction. The parties will be responsible for their own legal fees, but will equally share the costs incurred in arbitration, unless the arbitrator awards the costs or attorneys fees, or both, to the prevailing party as a part of the arbitration decision. Notwithstanding the foregoing, either party may seek equitable relief in any court of competent jurisdiction to protect or enforce its intellectual property or proprietary rights without obligation to engage in the negotiation and arbitration procedures set forth above.

Venue

The following exemplars reflect a compromise to split venue based on the location of the defending party:

Exemplar N11-18

This Agreement shall be governed by the laws of the State of Florida, without regard to its application of conflict of law rules. In any action to enforce this agreement, the venue shall be the court located within the state and district of the defending party.

Exemplar N11-19

This Agreement shall be construed and interpreted in accordance with the laws of Japan. All disputes or differences arising or in connection with this Agreement that cannot be amicably resolved by the parties, shall be finally settled by arbitration under the Rules of Conciliation and Arbitration of the International Chamber of Commerce, by three (3) arbitrators appointed in accordance with said rules. Such arbitration will be held in Tokyo, Japan, if requested by the [US party], or in Florida, U.S.A., if requested by [the Japanese party]. Any award resulting therefrom shall be final and binding on the parties hereto.

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Governing Law and Venue

NDA

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