Cross Jurisdictional Challenges in Non-disclosure Agreement Implementation: Insights From West Wist Mining V. Tobacom Del Mandiri

Abstract

This study examines the implementation and enforceability of non-disclosure agreements (NDAs) in cross-jurisdictional contexts, with a focus on the Indonesian and Australian legal frameworks. Using a normative legal research approach, the article analyzes the validity of NDAs under Indonesia’s Civil Code, particularly Article 1320, and their interaction with foreign legal obligations such as ASX Listing Rule 3.1 on continuous disclosure. The case of West Wist Mining (WWM) v. PT Tobacom Del Mandiri (PT TDM) 2016 illustrates how a confidentiality clause may be overridden by statutory transparency requirements. In Indonesia, an NDA may also be deemed void if tied to unlawful activities, such as violations of zoning laws under RTRW 2013- 2033 of Intan Jaya, based on Article 1337 of the Civil Code. Similarly, Australian Law permits disclosure of illegal conduct under section 674 of the Corporations Act 2001. The findings underscore that NDA are not absolute and must align with public policy and mandatory legal obligations. The study recommends drafting an NDA with jurisdictional flexibility, conducting due diligence, specifying governing law and arbitration forums, and balancing confidentiality with legal transparency. These measures are crucial to ensure legal certainty and enforceability in international commercial agreements.