Note on Disclosure of Confidential Information

Seller’s responsibility re. confidential information: The Website’s Terms & Conditions of Use require each intending Seller of Debt to warrant that it will not breach any duty of confidentiality by posting any information concerning a borrower or a Debt on the Website.

Legal advice recommended in case of doubt: If an intending Seller of Debt is uncertain whether it is subject to a duty of confidentiality, it should seek appropriate legal advice. Note that an obligation of confidentiality may be expressly set forth in the Original Agreement creating or evidencing the Debt, or may apply as a matter of general law or specific legislation.

Guidance:  (a) Status of notes.  These notes are intended as guidance only, are not to be regarded as a substitute for legal advice, and are subject to the disclaimer in paragraph (e) below.

(b) Implied right to disclose in certain jurisdictions. Where a Debt is expressly assignable (or assignable under general law) and the applicable Original Agreement does not provide whether or not an intending Seller is entitled to disclose confidential information in connection with a sale of Debt, some jurisdictions nevertheless imply a right of the Seller to disclose such confidential information to the extent reasonably necessary to enable assignment, on the rationale that a right of assignment would be of no value if such a right to disclose were not implied. 

 (c) Whether disclosure in a virtual data room or physical data room are different. A matter for consideration is whether disclosure on the Website is different from disclosure during a private meeting or telephone conversation or in a physical data room - in other words, whether there is any difference in principle between (i) allowing interested parties into a physical data room, subject to signing a confidentiality agreement, and (ii) allowing interested parties access to a virtual data room, subject to a confidentiality undertaking.  Sellers may or may not consider it a good argument that as more and more business becomes conducted online, allowing access to a virtual data room would be reasonable and would reflect the reality of the changing business environment. 

(d) Information already in public domain.  In certain jurisdictions, information already in the public domain is not regarded as confidential.  Common examples of public domain information are: (i) where court action has been initiated to place a borrower into liquidation or administration or reorganization or to recover Debt, the information included in the publicly available court records is likely to be regarded as in the public domain; (ii) where the borrower and the finance parties in a syndicated loan or a project financing publish details of the results of the fund-raising, or where journalists have otherwise  commented on borrowers or Debt in the general or financial media, such information may also be deemed to be in the public domain to the extent that the published details are accurate.

(e) Disclaimer. None of these notes should be regarded as a substitute for appropriate legal advice and e-debttrading.com and affiliates disclaims all liability to any person acting in reliance on these notes.  In case of doubt, a Seller should take appropriate legal advice as to whether it is subject to a duty of confidentiality, whether it is able to disclose any confidential information on the Website, and whether information is confidential or in the public domain.