China: China "Clarifies" Commercial Secrecy

Last Updated: 9 May 2010
Article by Nicolas Groffman and Shan Lai

The regulator of China's state owned enterprises (SOEs) recently released guidance on what constitutes a "commercial secret". With judgments being handed down last month in the Stern Hu/Rio Tinto case, this guidance is of great interest to foreign investors in China, as it may help identify the difference between state secrets and commercial secrets when dealing with Chinese enterprises.

There remain, however, a number of unanswered questions, and from the perspective of drafting, the circular has not fully clarified the definition of commercial secret. What it has done, however, is to remind practitioners that not all "secret" information held by SOEs is a state secret, and that some is merely a commercial secret.

Foreign investors should, as always, endeavour to establish a proper paper trail (or email trail) to show that any information/documents disclosed by the Chinese party were provided with the proper authority. This has particular significance now when dealing with SOEs, since there are specific exceptions to what constitutes a commercial secret, set out in Article 10 of the Circular (discussed below).


On 25 March 2010, the State Owned Assets Supervision and Administration Commission issued a Circular on Distributing Interim Regulations regarding Protection of Commercial Secrets of Central SOEs [2010] 41 (the Circular). The Circular was released publically on 26 April 2010.

The law on "commercial secrets" is contained in the PRC Criminal Law and the PRC Anti-Unfair Competition Law. The Criminal Law defines "commercial secret" as "technical information and operational information that are unknown to the public, can bring economic benefits to their rightful owner, are functional and are kept as secrets by their rightful owner".

That definition has been criticised as being vague and all encompassing.

Does the Circular provide a clearer guidance?

Under Article 2 of the Circular, a "commercial secret" is defined as "operational information and technical information which is unknown to the public, which can bring economic benefits to a central SOE (CSOE), can be practically used by the CSOE and is already subject to the protection measures of the CSOE".

Article 10 further defines the scope of "commercial secret", to include: "strategic plan, management method, business mode, reform and listing, merger, acquisition, restructure, transaction of property rights, financial information, investment and financing decision, manufacture, purchase and sale strategy, resource storage, client information, tender related information; technical information concerning design, procedure, product formula, processing technology, production method, knowhow, etc".

The combined effect of these definitions is basically that anything that has not been publically disclosed and could hold economic value can be regarded as a "commercial secret".

Overlap with state secrets

The Circular does not provide any clearer guidance on what constitutes a "commercial secret", but simply reaffirms the government's position in taking a vague and broad approach when it comes to "commercial secrets". However, as a matter of government policy, it may be that this is intended as a carve-out from the equally broad definition of "state secrets" in other laws. Our view is that part of the rationale behind this circular is to show that a secret held by an SOE is not necessarily a state secret. As a matter of law, this is not the case, because separate legislation on state secrets has not been amended to take into account the overlap with commercial secrets.

The Circular does provide that a commercial secret can be upgraded to a state secret if there is a policy change by the government, and so there is clear acceptance of the distinction. In a way this is good news for those who might inadvertently find themselves in possession of secret documents belonging to SOEs, because the penalties for misuse of state secrets are much more serious than those for misuse of commercial secrets.

It is also worth noting here that China has also amended its law on state secrets, which we will discuss in a subsequent update.

Managing "commercial secrets"

Based on the extent of economic damage that may be caused by the leak of commercial secret, commercial secret shall be divided into two levels: Core Commercial Secret and Common Commercial Secret. It remains to be seen what will be the practical significance on this proposed classification.

The level of secrecy, protection term and permitted disclosure of commercial secret will be determined and managed by the relevant CSOE.

Protection measures

To protect the confidentiality of commercial secrets, the Circular sets out a range of measures to be put in place. In particular:

  • confidentiality articles should be included in employment contracts;
  • "non-compete" agreements should be entered into with core employees who have knowledge of such commercial secret (economic compensation clauses to be included);
  • a confidential agreement should be signed where consultation, negotiation, technology assessment, appraisal of achievement, joint development, technology transfer, joint venture, outside audit, due diligence or asset and capital verification involving commercial secret is to be carried out.

The Circular also requires stricter, more comprehensive and encompassing protection mechanisms to be implemented.

The Circular does not specify any penalty for violation of the rules save to say breaches will be referred to judicial authorities.

The protection measures under the Circular impose greater responsibility on the CSOEs to better manage and safeguard commercial secrets.

What does it mean to foreign investors?

The Circular does not, in itself, offer any clarity or assistance to the foreign investors. The fresh parameters offered in the Circular are just as wide-ranging as before.

Note that this Circular is issued only by SASAC, and that other government departments of equal standing are entitled to issue their own legislation on commercial secrets. SASAC's views on the matter, however, are of particular importance, because previously there was an understanding held by many in government and in the judiciary that any secret held by an SOE was, prima facie, a state secret. This Circular recognises that secrets held by a state owned company are not necessarily state secrets.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.