NDA in Serbia - Confidential - STAV LAW
Commercial Law, IT & CryptobyPavle Stavretović

During negotiations with business partners, investors, employees, or external collaborators, it is common for sensitive business information to be exchanged. An NDA in Serbia (Non-Disclosure Agreement), also known as a confidentiality agreement, is one of the most effective legal instruments for protecting such information and preventing its unauthorized use or disclosure. In this text, we explain what an NDA is, when it should be concluded, how it should be properly drafted, and why engaging a lawyer in the process is crucial for its full legal effectiveness.

What is an NDA in Serbia?

NDA in Serbia is an abbreviation for the term Non-Disclosure Agreement. In Serbian legal practice, this instrument is most commonly referred to as a confidentiality agreement, a non-disclosure agreement, or an agreement on the protection of confidential information. All three terms are used interchangeably and refer to the same legal concept.

It is a contract under which one or both parties undertake not to disclose, use, or transfer to third parties any information designated as confidential.

Under Serbian law, confidentiality agreements are based on the general principles of the Law on Obligations, particularly the principle of freedom of contracting, as well as on specific regulations, most notably the Law on the Protection of Trade Secrets. The legal validity of NDAs before domestic courts is well established.

What types of information can be protected by an NDA in Serbia?

A non-disclosure agreement may cover virtually any information that has business value and is not publicly known. In practice, this most often includes:

In many cases, the question of how to protect a trade secret comes down to whether the information you consider confidential is clearly defined in a written document. If it is not, the level of protection is significantly reduced, even where a legal basis exists. The primary document serving this purpose in relation to external parties, such as partners, clients, and contractors, is the NDA in Serbia (confidentiality agreement), while internally this role is typically fulfilled by employment contracts, internal policies, and other measures, such as confidentiality policies, document classification (e.g. confidential, strictly confidential, internal), and similar mechanisms.

When is it advisable to enter into an NDA in Serbia?

A confidentiality agreement should be put in place before any exchange of sensitive information takes place. While this may seem obvious, in practice many companies miss the right moment to do so.

Set out below are some common situations in which an NDA in Serbia is highly advisable:

  • Negotiations with potential business partners — before sharing business strategies, financial projections, or client databases.
  • Engagement of freelancers and consultants — any external contractor who is granted access to internal data should be required to sign a confidentiality agreement.
  • Discussions with investors — it is standard practice to have an NDA in Serbia in place before sharing a business plan or financial statements with potential investors.
  • Hiring of employees — NDAs for employees or directors are particularly important in sectors where individuals have access to client databases, technical solutions, or sensitive processes.
  • IT and software development — developers, designers, and testers often work with source code and system architecture, which typically represent some of the company’s most valuable assets.
  • Due diligence processes in M&A transactions — a significant volume of sensitive information is exchanged during the course of buying or selling a company.

If you are considering how to protect a business idea at an early stage of development, the answer is straightforward: before disclosing it to anyone, ensure that an authorized representative signs a properly drafted confidentiality agreement.

Unilateral and bilateral NDAs – what is the difference?

A confidentiality agreement may be either unilateral or bilateral, depending on which party discloses confidential information, i.e. whether both parties are under an obligation to protect each other’s confidential information.

A unilateral NDA in Serbia is entered into where one party (the disclosing party) provides confidential information to the other party (the receiving party), which assumes the obligation to maintain confidentiality. This structure is commonly used where a company engages an external contractor, consultant, or freelancer. By way of example, NDAs for employees are typically unilateral, as the company (employer) is the disclosing party, while the employee is the recipient of confidential information.

A bilateral NDA in Serbia applies where both parties exchange confidential information, which is typical in negotiations between business partners of equal bargaining power. A confidentiality agreement with a business partner in the context of joint projects or strategic alliances will almost always be bilateral, as both parties disclose sensitive information.

Depending on the specific circumstances of the case, it is necessary to decide between these two models, a unilateral or a mutual confidentiality agreement.

Key clauses that every NDA in Serbia should contain

The question of how to protect a trade secret through a contract cannot be reduced to simply signing any document.

The content of the NDA in Serbia is what ultimately determines the level of protection. Every non-disclosure agreement should include the following elements:

  • Definition of confidential information — a precise and, where appropriate, exhaustive description of what is considered confidential. Overly broad definitions, or the absence of a definition, are among the most common reasons why NDAs perform poorly in court.
  • Obligations of the receiving party — what the recipient is permitted, and not permitted, to do with the information received.
  • Exclusions from confidentiality — information that becomes public through no fault of the recipient, information already known to the recipient, and similar cases.
  • Duration of the confidentiality obligation — this may be defined (e.g. 3 or 5 years) or unlimited in respect of certain categories of information.
  • Contractual penalty — while not mandatory, a contractual penalty is strongly recommended, as it provides greater certainty as to the compensation payable in the event of a breach. Although a penalty clause is not required (given that the injured party is generally entitled to claim damages for breach in any event), agreeing on a contractual penalty does not exclude the right to claim damages exceeding the amount of such penalty. In other words, a dual layer of financial protection is highly advisable.
  • Governing law and jurisdiction — particularly important in agreements with foreign partners, suppliers, or clients, as you will typically want disputes to be resolved before a court or arbitral body that is convenient to you and under a legal system with which you are familiar.

Most common mistakes in NDAs in Serbia

Set out below are some of the most common mistakes made when entering into confidentiality agreements, each carrying its own level of risk:

  • Use of free templates from the internet or AI-generated agreements — more on this in the following section.
  • Overly broad definitions of confidential information — in any agreement, the objective is to achieve a sufficient level of legal certainty, ensuring that the counterparty clearly understands what information must be treated as confidential and what falls outside that scope, thereby minimizing the risk of disputes over what was actually agreed.
  • Undefined or missing duration — where there is a “gap” regarding the period during which the confidentiality obligation applies, a fundamental question arises: what is the applicable term? If there is no clear answer, it becomes highly questionable whether the obligation exists at all. This issue should never be left to chance.
  • Absence of a contractual penalty — without a clear financial consequence, the obligation to maintain confidentiality lacks sufficient deterrent effect.
  • Failure to align the NDA in Serbia with the specific business relationship — an agreement drafted for one industry or jurisdiction cannot be automatically applied to another industry or to Serbian law without proper adjustment.
  • Failure to include confidentiality obligations in related agreements — the fact that an NDA in Serbia is a standalone agreement does not mean that confidentiality provisions cannot or should not be incorporated into other contracts, such as service agreements, independent contractor agreements, implementation agreements, copyright agreements, and similar arrangements.

In addition to the above, there are, of course, other mistakes that should be avoided in day-to-day contract practice, depending on the specifics of each individual case.

Are internet or AI templates sufficient?

In short – they are not, or, in other words, they are often inadequate.

Free NDA templates available online are typically drafted under common law systems (such as the United States or the United Kingdom), which operate under entirely different procedural rules and contractual liability frameworks. The same applies to AI-generated agreements, even when specifically instructed to draft them under Serbian law.

Moreover, templates are, by definition, generic. They do not take into account your specific business activity, the value of the information being protected, the duration of the business relationship, or the particular characteristics of the counterparty. If the objective is to protect a business idea in a manner that is genuinely legally effective, relying on a generic template or widely used AI-generated contract is not an appropriate solution.

Ultimately, in the event of a dispute, the shortcomings of such templates are borne, often at significant cost, by the party whose trade secret has been disclosed.

How does a lawyer draft a confidentiality agreement?

Drafting an NDA through a lawyer is a structured process designed to protect your interests from the outset. In practice, it typically involves the following steps:

  • Analysis of the business relationship — the objective is to understand who you are dealing with, what information is being shared, and what your expectations from the cooperation are.
  • Identification of confidential information — it is necessary to precisely determine which information should be protected, ensuring that the definition is neither too broad nor too narrow.
  • Risk assessment — the potential consequences of a disclosure are analyzed, and on that basis the contractual penalty and protection mechanisms are calibrated.
  • Preparation of a tailored confidentiality agreement — each NDA in Serbia is drafted specifically for the given situation, or at least for a particular line of business, whether it concerns business partners, customers, suppliers, employees, or similar parties, and it may be prepared in one or more languages.
  • Negotiation and alignment of the text — once the confidentiality agreement is shared with the counterparty, your interests in negotiations are protected by an NDA lawyer who understands your position and can assess where concessions may be made and where they are not advisable.

A confidentiality agreement with a business partner that has been prepared with legal assistance should not be viewed as a cost, but rather as a one-off investment in the security of your company. Questions such as how to protect a business idea before presenting it to investors, how to safeguard a trade secret from a former employee, or how to secure your position before sharing a business plan all have a common answer: the timely and properly documented execution of an NDA in Serbia.

While the protection of confidential information is most commonly achieved through NDAs, trade secrets in the Republic of Serbia are also protected by law. The primary regulation in this area is the Law on the Protection of Trade Secrets, which defines the conditions under which certain information qualifies as a trade secret and sets out the legal remedies available in cases of unauthorized acquisition, use, or disclosure.

Under the law, a trade secret is defined as information that is not generally known or readily accessible to persons who typically deal with such information, that has commercial value precisely because it is confidential, and in respect of which reasonable measures have been taken to preserve its confidentiality.

An NDA in Serbia, i.e. a confidentiality agreement, is one of the most important measures by which a company demonstrates that it actively protects the confidentiality of its business information, i.e. that it has taken reasonable steps to maintain such confidentiality. This may be of critical importance in potential court proceedings: a company that has taken no protective measures will have difficulty demonstrating that the information in question had the status of a trade secret. Accordingly, a non-disclosure agreement is not only a preventive measure, but also serves as evidence in proceedings, even where third parties have unlawfully obtained, used, or disclosed your trade secret.

Other reasonable measures include internal policies, such as confidentiality rules, as well as practical procedures like marking documents with appropriate confidentiality designations.

Instead of a conclusion: the relationship between NDAs, know-how, and intellectual property

An NDA in Serbia, whether referred to as a confidentiality agreement, a non-disclosure agreement, or an agreement on the protection of confidential information, represents one of the most important legal tools for safeguarding a company’s business interests. Its primary purpose is not the protection of intellectual property as such, but rather the protection of confidential information, trade secrets, and know-how before they become publicly available or are subject to specific statutory protection.

In practice, NDAs are most commonly used to protect business ideas, development plans, strategies, technological solutions, business models, client databases, operational processes, and other information that derives its market value precisely from not being known to third parties. In other words, an NDA in Serbia protects what a company knows, develops, or plans, and what gives it a competitive advantage in the market.

On the other hand, certain forms of intellectual property enjoy protection directly by operation of law. For example, computer programs, texts, photographs, graphic designs, project documentation, and other works of authorship are protected by copyright from the moment of creation, without the need for registration. In the case of trademarks, industrial designs, patents, and similar rights, registration is required.

However, in some situations, such as with certain inventions or ideas, it may not be possible to demonstrate the level of inventiveness required for patent protection, yet it remains essential to safeguard the innovation in some way. This is precisely where trade secrets and confidentiality agreements come into play, preserving secrecy through a contractual relationship.

Examples of such protection include recipes and preparation processes for some of the world’s most well-known beverages, as well as business plans and models, particularly in the IT industry. From all of the above, it follows that an initial investment in secure business operations has no adequate substitute.

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