Il processo a porte chiuse - Profili di protezione processuale civile dei segreti d'impresa

The dissertation deals with the protection of trade secrets during civil litigations, particularly examining the Closed Trial as a possible solution to the conflict of interest between confidentiality and the guarantees of a fair trial, such as the right to be heard. First the term ¿trade secret¿ will be introduced. It generally refers to confidential information. It has been addressed as the ¿ugly duckling of intellectual property¿, and, to be effective, it relies entirely on secrecy. It is exactly the need of maintaining secrecy that highlights the importance of protecting confidential information during litigation. The protection of secrecy encounters indeed difficulties in proceedings in which a party needs to preserve the interest in confidentiality from the other party. This situation remains often unregulated and can be particularly unfavorable if the parties to the proceeding are business competitors, and one of them does not want to disclose a trade secret to the other. Then, the possibility to hold a closed trial could be a solution, this kind of trial allows, in fact, the protection of confidentiality and the simultaneous examination of evidence. The first section of this work shows the relevance of trade secret protection in the civil procedure in two European civil law countries: first Germany and then Italy. This exam begins to portray the frame of constitutional and procedural principles that guarantee a fair trial, then analyzes the different existing methods of protecting a trade secret. Particularly, the hypothetical design of a closed proceeding will be discussed, the central point of which is excluding the opposing party in a litigation from the access to certain documents through which the party would gain knowledge of confidential information. The necessity to find a solution for the situation above-illustrated is encouraged also at the European level. The European Parliament has recently adopted a new Directive on the protection of trade secrets, in this work also referred to as ¿Trade Secret Directive¿. At the end of this first section, it is concluded that under this directive the possibility of an in-chamber procedure seems way more imaginable, particularly Art. 9 of the directive aims to harmonize the protection of trade secrets during litigation. Accordingly, the judge has the power to ¿take specific measures¿ to protect such information in the course of the proceeding: e.g., these specific measures involve the limitation of the access to certain documents and the restriction of a party's presence at the hearing where the confidential information is disclosed. However, a closed trial is not yet a concrete possibility owing to the lack of a statutory provision. In Germany, the possibility of protecting confidentiality by ordering that a document is examined not before the Court in the presence of the parties but by a neutral person who has been sworn to secrecy has been long discussed. In the second section of this work, a parallel analysis of trade secrets protection in two common law countries will be conducted: first the United Kingdom and then the United States of America. One specific measure applied by the English Courts is the so-called ¿Confidentiality Club¿, it is a tool with which the Courts can limit an individual's permit to inspect documents. Within a Confidentiality Club, the members are free to decide who has access to the information or who may copy those documents. Confidentiality Clubs are mostly used in pretrial stages. Lastly, confidentiality is becoming even more essential considering the diffusion of international business relationships, so that a brief digression on its protection under the main institutional Courts of Arbitration will be discussed.