RESHAPING TORT’S NARRATIVE THROUGH NDAs: A COMPARATIVE LAW PERSPECTIVE

This article examines the evolving role of non-disclosure agreements (NDAs) in tort settlements through a historical and comparative lens. It traces a periodization- and a consequent metamorphosis- in the use of NDAs, from tools of industrial and commercial secrecy to instruments capable of preventing reputational harm, reshaping public scrutiny and the communicative function of tort law. A main concern of the study is to discuss how different legal cultures, particularly in the U.S. and Europe, reflect divergent philosophies of civil liability. NDAs are very different from one another; today they not only cover “know how”, industrial secrets or employment relationships, but also extend to the resolution of disputes where on one side there is the victim and on the other the offender, concerned about saving their reputation. By focusing on a comparative law (& economics) perspective, the article argues that NDAs have become key indicators of a broader shift toward private ordering. It calls for a rethinking of freedom of contract in light of growing concerns about the functions of tort law. If, on one hand, the neoliberal trend emphasized private autonomy and settlement efficiency, nowadays other approaches are more attentive to transparency and fundamental rights.