Are NDAs legally binding in Japan? A guide for employers


May 16, 2023

For many employers hiring in Japan, NDAs, or Non-Disclosure Agreements, have become essential tools for their global businesses. It’s no wonder—NDAs protect valuable business insights, innovative ideas, and trade secrets. They're especially crucial in Japan, where new start-ups are popping up every day, each with its unique, proprietary edge.

Consider this: a surge in tech-oriented start-ups has recently swept across Japan, from the bustling streets of Tokyo to the vibrant tech hub of Osaka. These ventures are introducing groundbreaking technology and unique business methods that require protection. An NDA plays a key role in this process.

An NDA isn't just a piece of paper—it's a trust-builder between two parties. It's a promise to keep secrets secret. So, if you're a US-based company eyeing the Japanese market or a fledgling start-up in Japan, understanding NDAs is paramount to protecting your business information. Let's dive into the specifics (note: our guide is for informational purposes, and isn’t intended to provide legal advice).

What is an NDA?

An NDA, short for Non-Disclosure Agreement, is a legal contract between two or more parties where the “receiving party” agrees not to disclose certain confidential information provided by the “disclosing party.” In essence, it's a promise to keep secret the proprietary information shared during a business relationship.

However, in Japan, the concept of NDAs presents unique challenges. Japan's legal and cultural landscape strongly emphasizes relationships and trust, often prioritizing these over written contracts.

Also, Japan's legal system, unlike the US, does not have a history of extensive case law to guide the interpretation and enforcement of NDAs. This lack of precedence can make it especially tricky to enforce an NDA effectively in Japan. Therefore, understanding the nuances of NDAs in the Japanese context becomes critical to doing business in this country.

Are NDAs enforceable in Japan?

Yes, NDAs are enforceable in Japan. However, there are some major caveats and rules to consider:

  • Understanding cultural norms: Japanese business culture values trust and long-term relationships. While NDAs are legally binding, cultural preference leans towards maintaining harmonious relationships over strict enforcement of contractual obligations.
  • Lack of case law precedence: Unlike the US, Japan does not have a strong case law history regarding the enforcement of NDAs. This lack of precedent can lead to varying interpretations and enforcement measures.
  • Explicit terms: For an NDA to be enforceable in Japan, the agreement must explicitly define the confidential information, the obligation of confidentiality, and the consequences of breach. Vague or overly broad terms may be unenforceable.
  • Applicable law and arbitration: The NDA should specify that the laws of Japan govern the agreement. Including an arbitration clause for disputes can help enforce the NDA as arbitration is commonly used in Japan and is generally faster and less expensive than court proceedings.
  • Language of the agreement: NDAs written in English are enforceable, but it's advisable to have a Japanese version to avoid misinterpretation.

Remember, while NDAs are legally binding in Japan, their effectiveness often hinges on the specifics of their drafting and the cultural dynamics at play.

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Three things you need to know about NDAs in Japan

1. There are different types of NDA

There are two primary types of NDAs used in Japan: unilateral and mutual. A unilateral NDA involves one party disclosing information to another, who agrees not to disclose it.

On the other hand, a mutual NDA is when both parties share confidential information and agree to keep each other's information confidential. The type of NDA you use will depend on the nature of your business relationship and the information to be disclosed.

2. There are specific rules to make NDAs enforceable

Enforcing an NDA in Japan relies on specific and clear terms in the agreement. Here's what you need to make sure:

  • Definition of confidential information: The agreement should explicitly define what constitutes confidential information. This could range from trade secrets and intellectual property to financial information and business strategies. Avoid being overly broad or vague, as this can lead to difficulties in enforcement.
  • Obligations and restrictions: Clearly lay out the responsibilities of the receiving party. This includes detailing how they should handle the confidential information, restrictions on the use of the information, and conditions for permissible disclosure.
  • Consequences of breach: Outline the consequences for breaching the agreement. This could include financial penalties, injunctions to prevent further breaches, and the requirement to pay attorneys’ fees in case of a legal dispute.
  • Governing law and dispute resolution: The NDA should specify that it is governed by the laws of Japan. Also, consider including an arbitration clause. Arbitration is a common method of dispute resolution in Japan and is typically faster and less expensive than court proceedings.

Specificity is your ally when it comes to enforceability. The more precise your NDA, the better your chances of effective enforcement.

3. Protecting sensitive information beyond NDAs in Japan

While NDAs are a critical tool for protecting the disclosure of confidential information, they aren't the only tool. Other methods include:

  • Implementing strict data access protocols
  • Investing in cybersecurity measures
  • Regularly training employees on the importance of safeguarding confidential information

If the NDA is not enforceable for some reason, these additional measures can provide layers of protection for your sensitive business information.

When would an employee or contractor sign an NDA?

Employees or contractors typically sign an NDA under the following scenarios:

  • Start of employment/contract: This initial stage often involves exposure to sensitive business information, making an NDA crucial.
  • Access to trade secrets: Whenever tasks involve handling proprietary data, an NDA safeguards these vital secrets.
  • Joint venture/partnership: If your business collaborates with another entity, an NDA ensures shared information remains confidential.
  • Exit from company: On leaving, remember to remind employees or contractors of their continuing confidentiality obligations.

In short, use an NDA whenever your business's confidential information is at stake.

Frequently asked questions about NDAs in Japan

Are NDAs enforceable in Japan?

Yes, NDAs (Non-Disclosure Agreements) are enforceable in Japan, but their enforceability isn't absolute. It's contingent on several factors, including the reasonableness of the terms of this agreement and the nature of the confidential information involved. In essence, the provision of this agreement needs to meet certain conditions under the laws of Japan to be considered valid.

Are NDAs enforceable overseas?

The enforceability of a Japan-based NDA overseas largely depends on the jurisdiction where enforcement is sought and the specifics of the entire agreement. Most countries will enforce foreign NDAs, provided they comply with local laws and international legal principles.

However, there can be challenges. The NDA must comply with the laws of the foreign jurisdiction and should ideally specify which country's laws govern the agreement.

Including an arbitration clause is often beneficial, as arbitration awards are generally enforceable internationally under the New York Convention, to which over 160 countries are signatories.

Nevertheless, the enforcement process can be complex and potentially expensive. For this reason, when dealing with foreign parties, it's often advisable to consult with legal experts familiar with the laws of the relevant foreign jurisdictions.

What information can be covered by an NDA in Japan?

In Japan, an NDA can cover a broad range of confidential information. This typically includes:

  • Trade secrets: Proprietary methods, techniques, strategies, or other information that gives your business a competitive edge.
  • Intellectual property: This might involve patents, copyrights, trademarks, or other intellectual property rights that have not yet been publicly disclosed or registered.
  • Financial information: Details about your company's financial status, such as revenues, profits, forecasts, and investment details.
  • Business strategies: Plans for marketing, expansion, partnerships, or other strategic business initiatives.
  • Customer and supplier information: Details about your clients, customer lists, suppliers, and contracts that are not publicly known.

It's critical to clearly define what constitutes confidential information in the context of your business and the specific relationship.

When should you use an NDA?

In Japan, you should use an NDA whenever you're disclosing sensitive business information to individuals or entities outside your company. Common scenarios include:

  • Start of employment/contract: When an employee or contractor begins work and might access confidential information.
  • Access to trade secrets: When a task requires sharing proprietary methods, techniques, or strategies.
  • Joint ventures/partnerships: When collaborating with another entity and sharing confidential business information.
  • Exit from company: When an employee or contractor leaves the company, reminding them of their ongoing confidentiality obligations.

The goal of an NDA is to protect your confidential business information. Use it judiciously to safeguard your company's competitive edge.

Is an NDA the same as a confidentiality agreement?

Yes, an NDA (Non-Disclosure Agreement) and a confidentiality agreement are essentially the same. Both protect sensitive business information from unauthorized disclosure, setting rules for its use and penalties for breaches. The choice of term often comes down to preference, but the witness whereof, the agreement's content is what truly matters.

Is an NDA the same as a non-compete agreement?

No, an NDA and a non-compete agreement serve different purposes. An NDA, or Non-Disclosure Agreement, is designed to protect sensitive business information from being disclosed to unauthorized parties. It focuses on confidentiality.

On the other hand, a non-compete agreement is a contract between an employer and employee where the employee agrees not to enter into competition with the employer during or after employment. This type of agreement typically restricts an employee from working in similar businesses within a certain geographic area for a specified period after leaving the company.

While both agreements can protect a company's interests, they address different aspects of a business relationship.

Is an NDA ethical?

Yes, an NDA, or Non-Disclosure Agreement, is generally considered ethical in Japan. NDAs are legal instruments used worldwide, including in Japan, to protect sensitive business information. They are a standard part of many business relationships, ensuring confidentiality when sharing trade secrets, intellectual property, or other proprietary information.

However, it's essential that NDAs are used appropriately and not to cover up illegal activities or prevent individuals from reporting wrongdoings. Transparency and fairness in creating and enforcing an NDA are key to maintaining ethical standards. As with any legal agreement, both parties should fully understand their rights and obligations under the NDA.

Benefits of NDAs in Japan

An NDA can help protect employers' confidential information and proprietary assets, which can be crucial to a company's success. Benefits include:

  • Protection of trade secrets and intellectual property: An NDA can safeguard your company's proprietary information from unauthorized disclosure, providing legal remedies if such breaches occur.
  • Business relationships and trust: NDAs can facilitate collaboration by assuring parties that shared sensitive information will remain confidential.
  • Competitive advantage: By protecting unique business strategies, customer lists, or innovative products, NDAs can help maintain your company's competitive edge.
  • Legal recourse: In the event of a breach, an NDA provides a clear legal framework for pursuing damages.

In short, an NDA is a critical tool for any business looking to protect its confidential information while operating in Japan.

What happens if an NDA is breached?

In Japan, breaching an NDA can lead to:

  • Damages: The breaching party may be sued for losses caused by unauthorized disclosure. The severability of the contract does not affect this.
  • Injunctive relief: Courts can order the breaching party to stop disclosing or using confidential information.
  • Legal fees: The breaching party might need to cover the non-breaching party's legal fees if the NDA includes such a provision.
  • Reputation harm: A breach can damage the party's reputation, affecting future business relationships.

In essence, breaching an NDA has serious legal and reputational consequences.

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Rippling and its affiliates do not provide tax, accounting, or legal advice. This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for tax, legal, or accounting advice. You should consult your own tax, legal, and accounting advisors before engaging in any related activities or transactions.

last edited: July 13, 2023

The Author

Carissa Tham

A British Columbia-based tech content strategist and writer, Carissa has lived and worked in Singapore, Taiwan, and Canada. Carissa lends her unique global perspectives to growing Rippling’s brand in the Asia-Pacific region and beyond.