RESHAPING TORT’S NARRATIVE THROUGH NDAs: A COMPARATIVE LAW PERSPECTIVE

Abstract

This article examines the evolving role of non-disclosure agreements
(NDAs) in tort settlements through a historical and comparative lens. It traces a
periodization- and a consequent metamorphosis- in the use of NDAs, from tools of
industrial and commercial secrecy to instruments capable of preventing reputational
harm, reshaping public scrutiny and the communicative function of tort law. A main
concern of the study is to discuss how different legal cultures, particularly in the U.S.
and Europe, reflect divergent philosophies of civil liability. NDAs are very different
from one another; today they not only cover “know how”, industrial secrets or
employment relationships, but also extend to the resolution of disputes where on one
side there is the victim and on the other the offender, concerned about saving their
reputation. By focusing on a comparative law (& economics) perspective, the article
argues that NDAs have become key indicators of a broader shift toward private
ordering. It calls for a rethinking of freedom of contract in light of growing concerns
about the functions of tort law. If, on one hand, the neoliberal trend emphasized
private autonomy and settlement efficiency, nowadays other approaches are more
attentive to transparency and fundamental rights.