Trade secrets in arbitration: protection, access and evidence

Technical records may be important evidence in arbitration while also containing trade secrets. The party therefore needs a precise request: which information proves the disputed fact, who needs to see it and which protective measure prevents unnecessary disclosure?

Sections 599 and 602 of the Austrian ZPO and Articles 28 to 30 of the Vienna Rules provide the procedural framework for evidence, fair treatment and court assistance. Article 16(2) of the Vienna Rules also requires arbitrators to keep information learned in their function confidential. These rules support a staged approach that balances evidence, due process and secrecy.

This article addresses the production of confidential technical, commercial or contractual material. It is distinct from general confidentiality duties, data protection and the question whether proceedings before a state court are public.

What makes information a trade secret in the case

A trade secret is information whose economic value is linked to its lack of general availability and which is protected through reasonable measures. A label such as “confidential” is therefore rarely enough by itself. The request should identify the information and the interest in keeping it secret.

Technical material may include design data, source code, test values or production parameters. Commercial material may include pricing formulas, calculations and supply terms. The party should explain which parts are secret and why the material is nevertheless needed for the decision.

How the tribunal controls access to documents

Article 28 of the Vienna Rules requires fair proceedings and an opportunity to be heard. Article 29 allows the tribunal to request evidence from the parties where it considers this necessary. Production is therefore assessed by reference to the specific fact to be proved, rather than a general claim to the entire file.

A protective request should identify the requested level. Options may include a redacted version, access limited to party representatives and experts, or separate handling of an especially sensitive annex. The exact measure depends on the applicable rules, the parties’ agreement and the circumstances of the case.

Which protection levels fit the evidence

A targeted redaction is often the least intrusive measure. It must be explained so that the tribunal can assess the relevance of the removed information. If the redacted part is indispensable to the opposing party’s response, broader access may be required.

For sensitive material, a limited recipient group may be appropriate. The request should state who may receive the document, the permitted purpose and how copies, notes and return are handled. The arbitrators’ confidentiality duty under Article 16(2) does not automatically create the same detailed regime for parties and experts.

Timing also matters. If protection is sought after broad distribution, part of the risk has already materialised. Secrecy should therefore be addressed in the initial evidence request or in the response to a production demand.

How evidence and protection requests fit together

The evidence request identifies the fact to be proved and the document said to establish it. The protective request addresses the separate question of how the necessary review will be organised. The two requests should refer to each other so that the tribunal can assess proportionality.

A broad demand for all technical records makes that assessment difficult. A better request defines the document class, period, project connection and fact in dispute. The article on document production in arbitration addresses targeted requests. For a technical dispute, the article on the technical party expert report adds context for the expert evidence issue.

What Articles 16 and 30 of the Vienna Rules do

Article 16(2) requires arbitrators to keep confidential what they learn in their function. Article 30 also provides that hearings are not public and that parties must have an opportunity to know and comment on submissions, arguments and evidence results.

These rules provide a framework, but they do not automatically make every annex secret. The tribunal must balance the need for evidence with due process in practice. The party should therefore identify the information to be protected and explain which reduced version would allow the other party to respond.

When court assistance becomes relevant

If the case requires a judicial act that the tribunal is not authorised to carry out, section 602 of the Austrian ZPO may allow court assistance. This concerns the route for taking evidence and is distinct from a protective order in the arbitration.

An application under section 602 should identify the requested act, person or document, fact to be proved and connection with the arbitration. Confidential information should be transmitted only to the extent required for that act. The protection need should also be explained to the state court.

Documents needed for an initial review

For an initial assessment, gather the arbitration agreement, relevant contract, procedural calendar, production request and affected annexes. Do not only highlight secret passages; add a short list explaining what each passage contains.

Internal secrecy rules, access logs, existing confidentiality agreements and a description of the commercial harm from disclosure are also useful. They help distinguish a genuine trade secret from merely internal information or material that has already been published.

Common questions about trade secrets in arbitration

Must a confidential document be produced in full?

Not necessarily. The tribunal may assess which parts are required for the specific fact to be proved. Redactions or a limited group of recipients may be appropriate, provided the other party can still understand and respond to the case.

Is calling something a trade secret enough for a protective order?

A general label is usually insufficient. Explain the information, its economic value, the safeguards already used and the risk of disclosure. The tribunal can then determine the appropriate level of access.

Are arbitration hearings public?

Article 30(2) of the Vienna Rules provides that hearings are not public. That does not mean every filed document is automatically secret. Access and permitted use should be addressed expressly for sensitive annexes.

Subscribe to legal updates

Receive new articles and legal updates from the firm through BRANDaktuellen Rechtsnews.

Next step

Contract, arbitration clause, correspondence and deadlines should be collected. It can then be assessed whether negotiation, preservation or arbitration is central.