Drafting Non-Disclosure Agreements for Foreign Solar Developers During Site Assessments (Philippine Law Guide)
Introduction: why NDAs matter during solar site assessments in the Philippines
Before a foreign solar developer commits to land acquisition, leasing, or bidding, it commonly performs site assessments (e.g., topographical surveys, shading and irradiance studies, interconnection scoping, and preliminary layout and yield projections). These early-stage materials are commercially sensitive because they can reveal project viability, cost assumptions, and bidding strategy. In Philippine practice, the NDA is the first-line contract tool to reduce the risk that local landowners, intermediaries, or competing bidders reuse or leak the developer’s technical data.
At the same time, confidentiality is not absolute. Certain government submissions and official processes may require disclosures, and the enforceability of confidentiality clauses is shaped by public policy, specific statutes, and jurisprudence on government transparency and privileged deliberations.
Governing Philippine legal concepts relevant to NDAs for solar site work
1) Contractual confidentiality is generally enforceable, but must yield to lawful disclosure requirements
Philippine law generally respects parties’ freedom to contract, including confidentiality commitments, so long as the stipulations are not contrary to law, morals, good customs, public order, or public policy. In regulated settings, however, statutes and valid government or court orders may compel disclosure, and NDAs should be drafted to recognize this reality rather than pretend confidentiality is absolute.
For example, the PPP Code expressly protects confidential business information submitted in activities under the Code, but also recognizes that confidentiality does not apply when disclosure is mandated by law or by a valid order of a court of competent jurisdiction or of a government or regulatory body.
Takeaway: Draft NDAs with a clear “compelled disclosure” carve-out and a procedure (notice, cooperation, limited disclosure) so the parties know what happens when disclosure is legally required.
2) Statutory confidentiality models you can borrow from (by analogy and drafting style)
Even if a specific solar site assessment NDA is a private contract, Philippine statutes provide useful drafting patterns for defining “confidential business information” and the permitted disclosure exceptions. Examples include:
PPP Code of the Philippines, Republic Act No. 11966 (2023): Recognizes confidentiality of confidential business information, subject to consent and lawful/ordered disclosures.
Strategic Trade Management Act, Republic Act No. 10697 (2015): Protects confidential business information marked as such, with exceptions tied to justice and law enforcement, national security, or foreign policy interest as determined by the competent office.
Energy Virtual One-Stop Shop Act, Republic Act No. 11234 (2019): Provides a confidentiality rule for information/document aspects submitted by power project proponents, with release controls and reference to agency FOI manuals.
Philippine Energy Research and Policy Institute Act, Republic Act No. 11572 (2021): Restricts disclosure of proprietary or confidential data without prior consent of the source/owner.
Takeaway: These laws support the concept that proprietary technical and commercial inputs can be protected, but disclosures may be compelled in limited circumstances.
3) Government transparency limits: confidentiality clauses cannot defeat constitutional disclosure duties in certain government contracts
If the project later involves government contracting—especially foreign loans—confidentiality clauses may be scrutinized against constitutional and statutory transparency requirements. In Colmenares, et al. v. Duterte, et al. (G.R. Nos. 245981/246594, 2022), the Supreme Court ruled that confidentiality language in foreign loan agreements cannot override the constitutional policy requiring public availability of information on government-contracted foreign loans, and clauses that make disclosure the exception may be defective as against that mandate.
Relevance to solar developers: For private landowner NDAs during site assessment, this does not automatically require publication. But developers should draft with the expectation that some documents may later be requested or required in permitting, procurement, PPP/JV contexts, or public records processes involving government entities.
4) Privileges recognized in Philippine jurisprudence: deliberative process privilege (government-side)
Where the counterparty is a government agency or a dispute arises involving government deliberations, Philippine jurisprudence recognizes the deliberative process privilege, which protects predecisional and deliberative communications within government from compelled disclosure, subject to case-by-case balancing and proof requirements. In Department of Foreign Affairs v. BCA International Corporation (G.R. No. 210858, 2016), the Court discussed the privilege’s purpose: preserving candor in government decision-making, and recognized its possible invocation even in arbitration proceedings.
Relevance: If a solar developer participates in PPP or other government processes, the government’s internal deliberations may be privileged; conversely, this doctrine does not automatically protect a private developer’s trade secrets, which must be protected primarily by contract and trade secret handling measures.
What an NDA should protect in site assessments: defining the confidential subject matter
A common failure is using a generic definition (“any information”) without naming the specific high-value categories relevant to solar due diligence. For a foreign solar developer, the NDA should clearly include the following as Confidential Information (whether written, oral, visual, electronic, geospatial, or derived):
Typical protected categories
1) Topographical and geospatial outputs: survey results, contours, DEMs, slope analysis, drone imagery, orthomosaics, LIDAR outputs (if any), GIS layers, site layout constraints.
2) Solar resource and yield materials: irradiance datasets, shading studies, energy yield simulations (e.g., P50/P90), loss assumptions, degradation assumptions, performance ratios.
3) Concept design and engineering: preliminary layouts, stringing concepts, DC/AC sizing assumptions, equipment preferences, single-line diagrams, collector system concepts.
4) Commercial and bidding intelligence: target lease/option pricing assumptions, offer strategy, negotiation positions, bidder consortium details, development schedule and critical path.
5) Interconnection and interface notes: preliminary grid studies, substation options, routing concepts, interface risk notes (noting that later interconnection/interface planning may be formally required in certain settings, such as under PPP arrangements where interface risk mitigation may require an MOA for interconnecting facilities).
Core NDA clauses tailored to landowner and competing-bidder risk
1) Parties and covered persons: extend obligations beyond the signatory
Landowners often share information with family members, agents, brokers, or local advisers. The NDA should bind the receiving party to ensure compliance by its representatives and anyone who gains access through it. For developer-side operations, define permitted recipients (employees, affiliates, consultants, EPC advisers) under a “need-to-know” standard, and require them to observe confidentiality at least as strict as the NDA.
2) Purpose limitation: restrict use to evaluation of the specific project
The NDA must prohibit using the developer’s technical outputs to:
(a) market the property to other developers using the developer’s studies; (b) support another bid; or (c) develop a competing solar project concept with third parties.
Purpose limitation is often more enforceable than broad confidentiality language because it defines the prohibited conduct even if the recipient claims the information is “not confidential.”
3) Non-circumvention and no-bypass (highly relevant to competing bidders)
Where brokers or intermediaries are involved, include a clause that the receiving party will not bypass the developer to deal directly with the developer’s identified contacts (e.g., survey contractors, technical advisers, or land aggregators) for the same project opportunity, for a defined period.
4) Ownership and IP: confirm the developer retains all rights in studies and deliverables
State expressly that the developer (or its contractors) retains ownership of all reports, maps, models, datasets, and derived work product. Provide that no license is granted except to evaluate the transaction, and prohibit reverse engineering and replication.
5) Handling rules: marking, storage, return/destruction, and audit-friendly recordkeeping
Borrowing from statutory approaches that refer to information “marked as confidential,” it is good practice to require marking (CONFIDENTIAL) for documents, while also stating that unmarked site outputs disclosed during field work (e.g., map screenshots, verbal briefings) remain confidential if identified as confidential at disclosure or confirmed in writing soon after.
6) Compelled disclosure clause (must be realistic)
Because disclosures may be required by law, regulation, or a valid order, the NDA should permit disclosure only to the minimum extent required, with notice to the disclosing party (when legally allowed) and cooperation to seek protective treatment. This aligns with statutory concepts allowing disclosure when mandated by law or competent authority, such as under the PPP Code (Republic Act No. 11966, 2023).
7) Remedies: injunction, damages, and liquidated damages (with care)
For site-assessment NDAs, include:
(a) acknowledgment of irreparable harm and entitlement to injunctive relief; (b) recovery of actual damages and attorney’s fees where allowed; and optionally (c) liquidated damages calibrated to likely harm (avoid punitive amounts that may be challenged).
8) Term: confidentiality duration tied to project cycle
Set a confidentiality term that matches typical solar development timelines (often 2–5 years), with longer protection for trade secrets and proprietary models. Include survival of key obligations (confidentiality, non-use, remedies) after termination.
Clause design checklist (summary table)
Summary of NDA provisions for foreign solar site work
| Clause | Drafting goal | Common mistake to avoid |
|---|---|---|
| Definition of Confidential Information | Cover topo data, yield models, layouts, and bid intelligence | Overbroad “any information” without project-specific categories |
| Purpose limitation / Non-use | Stop landowners/agents from reusing studies for other bidders | Confidentiality-only clause with no “use” prohibition |
| Permitted recipients | Allow advisers while controlling disclosure | No need-to-know restriction and no responsibility for representatives |
| Compelled disclosure | Allow lawful disclosures with notice and minimal scope | Absolute secrecy language that ignores legal disclosure duties |
| Return/destruction | Reduce data leakage risk after talks fail | No procedure for deletion of digital copies and backups |
| Remedies | Enable quick court action and recovery | Unreasonably high liquidated damages that appear punitive |
Regulatory touchpoints for solar projects where confidentiality interacts with submissions
1) Energy permitting submissions and confidentiality expectations
For power project proponents, the EVOSS law provides that information or any aspect of documents submitted by proponents should not be divulged except to authorized persons/agencies, and releases are subject to each agency’s FOI manual (Republic Act No. 11234, 2019). This supports the expectation that permitting submissions are handled under controlled disclosure channels, but it also signals that agencies may follow FOI procedures for certain requests.
2) PPP or government-partnered development
If the solar project is structured as a PPP (or touches PPP processes), the PPP Code recognizes protection for confidential business information while allowing disclosure when required by law or by valid orders (Republic Act No. 11966, 2023). For projects that interconnect or interface with local/national facilities under PPP settings, the Code also requires an MOA containing an interconnection/interface plan, which may become part of official submissions and should be drafted with confidentiality and redaction planning in mind.
3) When government transparency becomes the controlling consideration
If financing or implementation later involves government foreign loans or other arrangements where constitutional disclosure is mandatory, the Supreme Court has ruled that sweeping confidentiality clauses cannot override the duty of public disclosure for government-contracted foreign loans (Colmenares, et al. v. Duterte, et al., 2022). Developers should anticipate the possibility that some documents could become disclosable and plan document segregation (trade secret annexes, redacted public versions) early.
Typical scenarios and how to address them in the NDA
Scenario A: Landowner uses your yield study to solicit higher offers from other developers
NDA response: Strong purpose limitation and non-use clause; prohibition on disclosure to third parties; liquidated damages calibrated to likely loss; injunctive relief language.
Scenario B: Local agent shares your site layout and routing concept with a competing bidder
NDA response: Bind “Representatives”; require the receiving party to be liable for their breaches; include non-circumvention for identified contacts and opportunity.
Scenario C: A government body requests copies of certain documents during permitting
NDA response: Compelled disclosure clause allowing compliance with law/regulation/orders; require minimal disclosure and notice; encourage redaction and labeling as confidential business information consistent with statutory patterns under Philippine law (e.g., PPP Code and EVOSS).
Scenario D: Dispute arises and documents are requested in arbitration or court
NDA response: Provide that disclosure to a tribunal is permitted when required by procedure/order, but require protective orders where available. Note that jurisprudence recognizes privileges in certain government contexts (Department of Foreign Affairs v. BCA International Corporation, 2016), while private parties should rely on contract protections and procedural safeguards.
Drafting tips for foreign developers (deal and operations)
1) Use a two-stage NDA approach: a short “entry NDA” for initial site access, then a fuller NDA bundled with the term sheet/option to lease.
2) Segregate deliverables: create separate annexes for trade-secret-heavy models (yield and loss assumptions) so you can more easily redact or protect them if later disclosure questions arise.
3) Control data rooms: watermark PDFs, disable downloads where feasible, and log access. Contract terms work better with audit trails.
4) Align with local enforcement reality: keep the NDA readable, define prohibited acts clearly, and ensure signatories have authority (especially for family-owned lands and co-ownership situations).
Conclusion: what a well-built solar site NDA should accomplish
A well-drafted NDA for foreign solar developers in Philippine site assessments should do more than “keep information confidential.” It should limit use, stop information-driven bidding manipulation, and set clear rules for lawful disclosures that may arise in permitting or government-facing processes. Done correctly, it reduces the chance that proprietary topographical analysis and solar yield projections are reused by local landowners, intermediaries, or competing bidders while staying consistent with Philippine public policy and disclosure requirements reflected in statutes and Supreme Court rulings.
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