Supreme Court: Trade Secret Access Proceedings

9 October 2018

Brinkhof represents The Dow Chemical Company (“Dow”) in proceedings against Organik Kimya (“Organik”). In these proceedings Dow has requested access to material seized at Organik on the basis of alleged misappropriation of Dow’s trade secrets by Organik.

The Court of Appeal of The Hague decided in 2016 and 2017, in short, to grant Dow access ex Article 843a DCCP in part of the material seized at Organik, and the seizure on another part (including a detailled description of Organik’s processes) should be lifted. To execute this decision, the Court of Appeal appointed two experts (an IT expert and a chemical expert). After the execution of the Court of Appeal’s decision had started, Organik requested the Rotterdam PI Judge to partly suspend this execution, also in view of the supreme appeal Organik had filed. The Rotterdam Judge denied Organiks claims in 2017 (confirmed by the Court of Appeal of The Hague in 2018).

The Supreme Court dismisses Organik’s supreme appeal against the Court of Appeal’s 2016 and 2017 decisions. At the same time the Supreme Court agrees with Dow’s supreme appeal as far as the detailled description is concerned. The Supreme Court considers, among others:

  • Legal standard: the CoA applied the correct legal standard to assess Dows access claim ex Art. 843a DCCP. This is the standard from the Supreme Court’s AIB/Novisem judgment (confirmed in the Synthon/Astellas judgment). The question to be answered under this standard is whether such facts and circumstances have been asserted and substantiated with already available evidence that it is sufficiently plausible that trade secrets have been misappropriated. In these access proceedings the higher standard for the adjudication of an injunction in PI proceedings does not need to be met.
  • No breach of principle of an adversarial process (Article 6 European Convention Human Rights): that Dow’s list of trade secrets was not known to the Court of Appeal or Organik did not result in a violation of Article 6 ECHR and the principle of an adversarial process (as Organik argued). The Court of Appeal’s decision to grant access was not based on the (lack of) knowledge of these trade secrets (and Dow did not need to specify them). The Court of Appeal’s finding that the alleged misappropriation is sufficiently plausible was based on the facts and circumstances and evidence Dow submitted in the proceedings. Organik was able to respond to these facts, circumstances and evidence.
  • Main action: the main action ex Article 1019c (2) Dutch Code of Civil Procedure is the procedure in which the misappropriation claims are filed (e.g. an injunction or damages claim). The parties agree that the main action ex Article 700 (3) DCCP is the access claim.
  • Detailed description: the Court of Appeal had decided that Dow should not have been granted leave to make a detailed description based on the alleged misappropriation of trade secrets. The Supreme Court disagrees: a detailed description is allowable in cases which are sufficiently similar to cases to which the rules of Article 1019e DCCP apply, e.g. in case of trade secret misappropriation.

The Supreme Court decision can be read here (Dutch). This case is being handled for Dow by Richard Ebbink, Mark van Gardingen, Rik Lambers, Alexander de Leeuw and Paul Marcelis