Cross-border non-disclosure agreements (NDAs) and confidentiality and disclosure agreements (CDAs) are among the first legal documents signed in any international business relationship. A domestic US NDA does not automatically protect you when the other party is in Brazil, Portugal, Germany, or another country. Governing law, jurisdiction, enforceability, and language all work differently across borders, and a standard form NDA drafted for US-to-US business can have significant gaps when the counterparty is outside the United States. At Lopes Law LLC, we draft and review cross-border NDAs for US businesses working with international counterparties, with particular focus on Brazil, Portugal, Spain, and Latin America.

This guide explains the critical differences between domestic and cross-border NDAs, what governing law and jurisdiction clauses should say, the key clauses every international NDA needs, and how GDPR affects cross-border confidentiality agreements with European partners. This information is for general guidance and does not constitute legal advice for any specific agreement or situation.

What Makes Cross-Border NDAs Different from Domestic NDAs?

A domestic US NDA operates entirely within the US legal system. When a dispute arises, the parties go to US court, US law applies, and remedies like injunctive relief and money damages are available through a familiar process. A cross-border NDA must address what happens when that single-country framework no longer applies.

Choice of Governing Law

The governing law clause determines which country’s law controls the interpretation and enforcement of the NDA. This matters because what counts as a breach, what remedies are available, how long the NDA is enforceable, and what constitutes a trade secret all vary significantly by jurisdiction.

US trade secret protections are governed primarily by the Defend Trade Secrets Act (DTSA, 18 U.S.C. Section 1836 et seq.) and state law (most states have enacted the Uniform Trade Secrets Act). These are strong, well-developed protections. If US law governs and a Brazilian company breaches the NDA, you can potentially obtain a US court judgment, but then you face the separate challenge of enforcing that judgment in Brazil, which requires Brazilian court proceedings.

Some foreign jurisdictions limit NDA duration by law. In Germany, for example, trade secret protection under the Gesetz zum Schutz von Geschaeftsgeheimnissen (GeschGehG) requires active reasonable secrecy measures; an indefinite NDA without active protection steps may have reduced effectiveness. Understanding these variations requires legal counsel familiar with the target jurisdiction. At Lopes Law LLC, we advise US businesses on the legal effect of their NDA in Brazilian and Portuguese law contexts specifically.

Jurisdiction and Enforcement

The jurisdiction clause determines where disputes will be heard. A US court judgment is not automatically enforceable in Brazil. Brazil and the United States do not have a general bilateral treaty for the recognition and enforcement of court judgments. A US court judgment must go through homologation by Brazil’s Superior Tribunal de Justica (STJ) to be enforceable in Brazil, which is a multi-year process with uncertain outcome.

International arbitration is often the better solution because arbitral awards are enforceable in over 170 countries under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958). Brazil ratified the New York Convention in 2002. An arbitral award obtained in ICC or AAA-ICDR arbitration is enforceable in Brazil through a streamlined process compared to enforcing a US court judgment. For NDAs with Brazilian counterparties, international arbitration clauses are the standard recommendation.

Language and Controlling Version

Cross-border NDAs are often executed in two languages (English and the counterparty’s language). The agreement must specify which language version controls in the event of a conflict. If both versions are “equally official,” a discrepancy in translation becomes a dispute about which interpretation applies. Best practice is to designate one version as controlling (typically English for US parties) and treat the other as a courtesy translation only.

GDPR and Personal Data

If any personal data (names, email addresses, IP addresses, or any other identifying information about individuals) is shared under the NDA, the General Data Protection Regulation (GDPR, Regulation (EU) 2016/679) may apply if the counterparty is in the EU or if EU residents’ data is involved. A standard domestic NDA does not address GDPR obligations. Cross-border NDAs with European counterparties should include data protection provisions or reference a separate Data Processing Agreement (DPA). For more detail on GDPR in international contracts, see our guide on GDPR and US Business Contracts: What to Include in Your International NDA.

What Governing Law Should a Cross-Border NDA Use?

US parties generally prefer US governing law, with New York or Delaware law being the most common choices. New York has extensive commercial law precedent. Delaware is widely respected in corporate transactions. Both states have strong trade secret law aligned with the federal DTSA framework.

Foreign counterparties may resist US governing law, particularly if they have been advised that it creates an unfavorable enforcement posture for them. Negotiating the governing law clause is common in cross-border NDAs. The outcome depends on the relative bargaining power of the parties and the nature of the transaction.

When both parties resist the other’s home country law, a neutral jurisdiction can be chosen. English law (Law of England and Wales) is widely used in international commercial contracts as a neutral choice with sophisticated commercial law and broad international acceptance. Swiss law is another common neutral choice. These choices add complexity for US parties unfamiliar with those legal systems, but they may be necessary to reach agreement.

For US companies working with Brazilian counterparties, Brazilian law as governing law is sometimes accepted by US parties for lower-stakes NDAs where the Brazilian party is providing the information (and thus has less to lose if US law is not available to protect disclosures the US party makes). For higher-stakes arrangements where the US party is the discloser, US law as governing law with ICC arbitration is the standard recommendation from At Lopes Law LLC.

What Jurisdiction Clause Should Cross-Border NDAs Include?

Jurisdiction clauses in cross-border NDAs come in three forms: exclusive court jurisdiction, non-exclusive court jurisdiction, and arbitration.

Exclusive jurisdiction clauses designate one court as the only forum for disputes. Non-exclusive jurisdiction clauses allow either party to file in the designated court but do not prevent filing elsewhere. Arbitration clauses designate arbitration as the exclusive forum, replacing court litigation entirely.

For cross-border NDAs with significant commercial stakes, international arbitration is the strongly preferred structure. The major reasons are: arbitral awards are enforceable under the New York Convention in most countries where court judgments are not automatically enforceable, arbitration proceedings are confidential (appropriate for disputes involving trade secrets), and parties can choose arbitrators with relevant industry and legal expertise.

For NDAs with Brazilian parties, the ICC International Court of Arbitration (Paris) and the AAA-ICDR are both widely used. The CAM-CCBC (Brazil-Canada Chamber of Commerce Arbitration) is a well-regarded Brazilian-based arbitration institution for disputes with Brazilian counterparties. For NDAs with Portuguese parties (which are EU members), ICC arbitration or LCIA (London Court of International Arbitration) are common. At Lopes Law LLC, we have reviewed and negotiated international NDAs for clients with counterparties in Brazil, Portugal, Spain, and other jurisdictions.

What Are the Key Clauses in an Effective Cross-Border NDA?

A well-drafted cross-border NDA covers the following essential elements:

Definition of Confidential Information

Broad, precise definitions prevent disputes about what information is covered. Consider whether the definition includes orally disclosed information (which requires confirmation in writing within a specified period), information disclosed by third parties acting on behalf of the disclosing party, and information developed independently using confidential information as a foundation.

Permitted Disclosures and Need-to-Know Limitations

Specify who can receive the confidential information: employees, officers, directors, advisors, and contractors only on a need-to-know basis, each of whom must be bound by obligations at least as protective as the NDA. Define what constitutes “need to know” clearly. For cross-border arrangements, specify whether the permitted disclosees can be located outside the receiving party’s home country.

Residuals Clauses: A Significant Negotiating Point

A residuals clause permits a party to use information that is retained in the unaided human memory of its personnel after they have had access to confidential information. Large technology companies and pharmaceutical companies routinely insist on residuals clauses as standard policy. Accepting a residuals clause significantly weakens the NDA because it creates an exception that is difficult to define or enforce. If you are the disclosing party of valuable technical or business information, resist residuals clauses or narrow them to exclude specific sensitive categories of information. Anthony Lopes, Esq. at Lopes Law LLC has extensive experience with NDA negotiations from his time at Duane Morris LLP and from work with pharma clients including Merck and PRA Pharmaceuticals, where NDA scope was a central negotiating issue.

Injunctive Relief

Money damages alone are often inadequate for an NDA breach because the harm (unauthorized disclosure of confidential information) is not easily reversible through cash compensation. The NDA should explicitly state that the disclosing party is entitled to seek injunctive or other equitable relief without posting bond and without the need to prove actual damages. In cross-border agreements, specify which courts have jurisdiction to grant injunctive relief, as arbitration alone may not be sufficient to obtain emergency injunctive relief in time-sensitive situations.

Term and Survival

Specify the NDA duration (typically 2 to 5 years) and whether confidentiality obligations survive expiration or termination of the NDA. Trade secret information may have longer protection needs than general confidential information. Some NDAs distinguish between the two: standard confidential information is protected for the NDA term, while trade secrets are protected for as long as they retain trade secret status under applicable law.

Non-Solicitation Provisions

Non-solicitation clauses (prohibiting the receiving party from soliciting the disclosing party’s employees or clients) are often bundled into NDAs. Enforceability varies significantly by jurisdiction. California does not enforce non-solicitation of employees. Brazil has specific labor law considerations for non-solicitation. At Lopes Law LLC, we advise whether non-solicitation provisions are enforceable in the specific jurisdictions involved before they are included.

A Real Scenario: When NDA Jurisdiction Fails to Protect US Trade Secrets

A US technology company entered into an NDA with a potential Brazilian licensee to share proprietary manufacturing process documentation during licensing negotiations. The NDA was a standard US form that specified US governing law and exclusive US federal court jurisdiction, with no arbitration clause. Negotiations broke down, and the Brazilian company began using elements of the process in its own manufacturing operations.

The US company obtained a US federal court judgment for breach of the NDA and misappropriation of trade secrets. When it sought to enforce the judgment in Brazil, it discovered the homologation process through Brazil’s Superior Tribunal de Justica would take years and faced procedural challenges because the original proceedings were conducted without proper service of process on the Brazilian defendant under Brazilian standards.

At Lopes Law LLC, we now advise including ICC or CAM-CCBC international arbitration clauses in all NDAs with Brazilian counterparties. An arbitral award from a recognized institution would have been enforceable in Brazil in months, not years. This scenario illustrates why the jurisdiction clause is one of the most consequential choices in a cross-border NDA.

How Does GDPR Affect Cross-Border NDAs with European Partners?

If any personal data is shared under an NDA with a European counterparty, GDPR obligations attach regardless of whether the NDA mentions data protection. GDPR requires that whenever personal data moves from one party to another, the roles of controller and processor must be defined, data subjects must have their rights protected, and data transfer mechanisms must comply with GDPR transfer rules.

A US company that receives employee contact information, customer lists, or any other personal data from a European counterparty under an NDA is subject to GDPR restrictions on what it can do with that data. The NDA should include GDPR-compliant data processing provisions or reference a separate Data Processing Agreement. For a full discussion of GDPR in US business contracts, see our guide on GDPR and US Business Contracts: What to Include in Your International NDA.

A practical step At Lopes Law LLC we recommend for US companies entering their first European NDA: include a “GDPR trigger clause” in the NDA that requires the parties to execute a separate Data Processing Agreement before any personal data is transferred. This approach avoids embedding full GDPR compliance language into the NDA itself, which can make the NDA unnecessarily complex, while ensuring that GDPR obligations are not overlooked when the relationship progresses to data sharing. The DPA can then be tailored to the specific data categories and processing activities involved.

For international contracts involving bilingual review or Portuguese-speaking counterparties, see our guide on Why Your International Contract Needs a Bilingual Attorney, Not a Translator. For the broader context of entering the US franchise market as an international investor, see our guide on International Franchise Investment in the US: A Legal Guide for Foreign Nationals.

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