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THE CIVIL LIABILITY IMPLICATIONS OF TRADE SECRET MISAPPROPRIATION
UNDER THE LEGAL FRAMEWORK OF AFGHANISTAN
Sayed Mavdood Aslamzada
Ph.D. studint in Private Law
Al-Mustafa International University – Gorgan Branch.
Dr. Hossein Miri
Teacher at the Faculty of Private Law
Al-Mustafa International University – Gorgan Branch.
Dr. Mohammad Medibo Juni
Directir of the Faculty of Law
Al-Mustafa International University – Gorgan Branch.
https://doi.org/10.5281/zenodo.15398822
Abstract. In today's world, where knowledge and technology are key elements in
economic growth and development, trade secrets, as part of the intangible assets of businesses
and commercial companies, play a significant role in enhancing competitiveness and securing
their market position. The importance of protecting these secrets becomes even more critical
when considering that unauthorized disclosure or misuse can cause irreparable harm to their
owners. As economic interactions become more complex and commercial relations expand, the
phenomenon of trade secret violations has emerged as a serious legal challenge, leading to an
increase in private law disputes. The legal system of Afghanistan, recognizing the importance of
the issue, has made efforts to establish effective legal frameworks to protect trade secrets.
Among these efforts, civil liability serves as a key legal tool, playing an essential role in
compensating the injured parties and creating deterrence.
This study, employing a descriptive-analytical approach and using library-based
research methods, aims to conduct a legal analysis of the effects of civil liability resulting from
the violation of trade secrets, with a detailed examination of the role and function of civil
liability in Afghanistan’s legal system. The findings of this research indicate that the right to
compensation, the right to use legal actions, the right to employ precautionary measures, and the
right to file a lawsuit are the most important effects of civil liability. Although Afghanistan’s
legal system has taken steps towards the protection of trade secrets, it still requires further
strengthening, revision, and greater alignment with global developments in this field. By offering
practical recommendations, this study seeks to contribute to enhancing legal understanding,
improving existing legal mechanisms, and creating more effective frameworks for the protection
of trade secret owners’ rights.
Keywords: Civil Liability, Compensation for Damages, Filing a Lawsuit, Precautionary
Measures, Legal System.
Introduction
In the contemporary era, information and technical knowledge play a crucial role in
economic competition, and trade secrets, as a vital part of businesses’ intangible assets, have a
decisive impact on economic development and success. Maintaining the confidentiality of these
secrets is of paramount importance for companies and individuals engaged in commerce. With
the expansion of commercial relations and the increasing complexity of economic interactions,
cases of trade secret violations have also risen, leading to a significant number of disputes in the
realm of private law.
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The legal system of Afghanistan, recognizing the importance of protecting trade secrets,
has undertaken efforts to ensure such protection. One of the key tools in this regard is the
application of civil liability rules to those who violate trade secrets. The primary aim of this
liability is to compensate the owners of the secrets for the damages suffered and to restore the
injured party to the position they were in prior to the harm. However, it must be noted that trade
secrets possess unique characteristics, and it is necessary to assess whether the Afghan legal
system has taken these particularities into account when addressing the effects of civil liability
arising from the violation of trade secrets, and whether the civil protections provided effectively
contribute to achieving justice in this area.
Answering these questions requires a thorough examination and analysis of the effects of
civil liability for trade secret violations under the Civil Code and the Law on the Protection of
Trade and Industrial Secrets.
This article aims to study the effects of civil liability arising from the violation of trade
secrets within the Afghan legal system, specifically by clarifying the legal rights of the injured
party, including the right to compensation, the right to invoke legal actions, the right to employ
precautionary measures, and the right to file a lawsuit.
The research examines each of these effects in four separate sections, with careful legal
analysis and reference to domestic laws, particularly the Civil Code and the Law on the
Protection of Trade and Industrial Secrets of Afghanistan. It is hoped that the findings of this
study will contribute to enhancing the legal understanding of this field and to the improvement or
strengthening of existing legal frameworks.
The Concept of Civil Liability
Civil liability is synonymous with non-contractual obligations and strict liability. It refers
to the duties that arise as a result of a lawful or unlawful act, without the existence of a valid
contract between the parties (Dehkhoda, 1998, p. 20907; Hodavand, n.d., p. 56).
The Concept of Volation
Violation refers to a culpable act or omission that causes harm to another (Anvari, 2003,
p. 7927).
The Concept of Trade Secrets
In its literal sense, "secrets" means hidden matters or information that should not be
disclosed to others, while "trade" refers to commerce and transactions (Amid, 2008, p. 375). In
legal terminology, a trade secret refers to a set of information related to methods and techniques
of manufacturing and producing goods and products, work programs or formulas, designs, and
practical and experiential skills used in the production and marketing of products. This
information must remain undisclosed to the general public and competitors in a specific
economic or commercial field. The secrecy must be such that it provides independent economic
value and practical benefits, and it must generally not be accessible through conventional means
(Emami, 2017, p. 513; Hadavand, n.d., p. 56).
Compensation for Damages
The right to compensation for damages, as the direct and primary effect of civil liability
arising from the violation of trade secrets (Nawaf Salameh Al-Zein, 2013, p. 92), will be
examined under five sections. The first section addresses the concept of compensation for
damages; the second discusses the principles of compensation; the third explores the types of
compensation; the fourth examines the methods of compensation; and the fifth analyzes the
criteria for determining compensation under the legal system of Afghanistan.
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The Concept of Compensation for Damages
Compensation for damages has been defined as the elimination of harm and losses
inflicted on individuals or their property as a result of the wrongdoing of the liable party. The
extent of compensation is proportional to the harm suffered and the deprivation of rights that the
injured party would have enjoyed had the wrongdoing not occurred (Rahimi, 2018, p. 117; Jafari
Langroudi, 2016, p. 260). The liable party is responsible for bearing the damages resulting from
their misconduct or negligence. In other words, compensation for damages is a sum of money or
anything else that offsets the harm suffered by the injured party and restores the lost value of
their assets, which is the natural consequence of the harmful act (Baker, 2016, p. 289).
Although the above definition presents the general concept of compensation, the focus of
this writing is specifically on compensation within the framework of civil liability arising from
the violation of trade secrets. Therefore, it is necessary to define compensation by considering
the specific characteristics of trade secrets. Accordingly, compensation refers to eliminating the
losses inflicted on the owner of trade secrets due to the violation committed by the infringer,
with the amount of compensation being proportionate to the damages and deprivation suffered
by the owner of the trade secrets—rights that would have been realized had the violation not
occurred.
Principles of Compensation for Damages
In order to determine the amount and method of compensation for damages, certain
principles must be observed. These principles serve to guarantee justice and fairness throughout
the compensation process, and therefore require careful examination.
1.
Principle of Proportionality
: It is stated that the purpose of compensation is to restore
the injured party to their prior condition; that is, the best form of compensation is one that returns
the injured party to the situation they were in before the damage occurred. Based on this
principle, actual restitution is considered the most effective method of compensation (Saghiri,
2008, pp. 615–616). The principle of full compensation for damages is also evident in Hanafi
jurisprudence, and can be inferred from the Islamic legal maxim
La Darar
("no harm and no
harassment") (Moqtada Damad, 1995, p. 130), which holds that causing harm is prohibited and
that any harm inflicted must be remedied through full compensation.
2.
Similarly, the Afghan Civil Code stipulates:
"The court shall determine the compensation
proportionate to the harm suffered, provided that the said harm has directly resulted from the
harmful act."
The Law on the Protection of Trade and Industrial Secrets of Afghanistan also
acknowledges this principle, stating: *"(1) The court shall oblige the violator of the provisions of
this law to compensate for the following:
3.
Damages equivalent to the loss, based on the rate applicable on the date the damage
occurred.
4.
Principle of Considering the Financial Status of the Liable Party
: Justice and fairness
require that individuals be held responsible according to their capacity, as imposing beyond one's
ability (
taklif ma la yutāq
) is prohibited in Islamic law, and the principle of
raf‘ al-haraj
(removal of hardship) supports this notion. Therefore, if the liable party is insolvent and unable
to pay the compensation at once, the payment must be scheduled in installments.
5.
Article 781 of the Afghan Civil Code provides:
"The method of compensation shall be
determined by the court, considering the circumstances. Compensation may be paid in
installments or through periodic payments, in which case the court may require the debtor to
provide security."
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Thus, these two major principles—full compensation and consideration of the debtor's
financial situation—have been taken into account by the Afghan legislator in the Civil Code and
are equally applicable to trade secrets. Given the economic value of trade secrets, full
compensation is essential; yet, in cases where the violator is financially incapable of paying the
full compensation at once, installment payments must be allowed.
Types of Compensation for Damages
Compensation for damages should be structured in a way that restores the injured party to
their original condition, meaning that the entirety of the damage must be compensated. To ensure
full compensation, it is necessary to study the different types of compensation available based on
the variety of harms suffered by the injured party. The types of compensation are as follows:
1.
Compensation for Actual Damages
: Any damage resulting from the violation of trade
secrets that affects an individual is compensable (Rahbari, 2009, p. 185; Kaabi Rad et al., 2024,
p. 201). Article 11 of the Law on the Protection of Trade and Industrial Secrets of Afghanistan
explicitly states:
"The compensation shall be equivalent to the damage based on the market rate
on the date the damage occurred."
2.
Compensation for Loss of Profits (Lucrum Cessans)
: If the legitimate profits of the
trade secret owner are lost due to the violation of trade secrets by the infringer, such loss of
profits is compensable. This is considered the primary harm faced by the owner of trade secrets,
particularly in cases of disclosure. However, if the profits were merely speculative or uncertain,
they cannot be claimed (Rahimi, 2018, pp. 124–125).
3.
Compensation for Unauthorized Gains by the Infringer
: If the violator has obtained
benefits through the misuse of trade secrets, they must compensate the trade secret owner for
such illicit gains, as these profits are directly linked to the reduction in the owner's rightful
benefits. Accordingly, Part 3 of Paragraph 1, Article 11 of the Law on the Protection of Trade
and Industrial Secrets of Afghanistan provides:
"3) Compensation for the unlawful profits
obtained through the misuse of trade and industrial secrets, unless such profits have already
been considered when calculating the damages under Part 1 of this paragraph."
4.
Court Costs and Legal Fees
: These costs, which include attorney’s fees, court filing
fees, documentation costs, and other related expenses, are also recoverable. According to Part 2
of Paragraph 1, Article 11 of the Law on the Protection of Trade and Industrial Secrets of
Afghanistan:
"2) Expenses incurred by the injured party for proving their claim, including
attorney’s fees, are recoverable."
Undoubtedly, such costs are also claimable in lawsuits
concerning the violation of trade secrets and are, therefore, subject to compensation.
Methods of Compensation for Damages
The methods of compensation for damages are discussed both in the Civil Code and the
Law on the Protection of Trade Secrets of Afghanistan. These methods are as follows:
1.
Actual Compensation (Restitution)
: If the damage involves tangible property, the best
method for compensation is restitution, where the actual item is returned to the injured party.
This method is referred to as restoring the situation to its original state. According to
Article 765 of the Civil Code regarding the restitution of wrongfully possessed goods:
"The
possessor is obligated to return what they have wrongfully possessed."
Thus, restitution is the
primary method of compensation, and as long as it is possible, no other forms of compensation
should be considered (Rahimi, 2018, p. 120). However, in the case of trade secrets, restitution is
less applicable since trade secrets are intangible.
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Although it is possible to claim for tangible products or industrial goods derived from
trade secrets, these would not be returned to the owner of the trade secrets, as they are the
property of the infringer, not the owner of the secrets.
2.
Monetary Compensation
: Since restitution is not always possible, especially in the case
of trade secrets, Afghan law provides for monetary or non-monetary compensation. According to
Article 781 of the Civil Code:
"The method of compensation shall be determined by the
court according to the circumstances; compensation may be made in installments or based on
ongoing revenue."
This provision, an incomplete adaptation of Article 171 of the Egyptian Civil
Code, allows the judge to select the method of compensation, including monetary compensation.
Additionally, the Law on the Protection of Trade Secrets of Afghanistan, in Article 11,
states:
"The court shall order the infringer to compensate for the damage equivalent to the loss based
on the market rate at the time the damage occurred."
Thus, monetary compensation is
recognized as a valid method of compensation for trade secret violations.
3.
Non-Monetary Compensation (Restitution of Equivalent Goods)
: One of the methods
for compensation in Afghan law is non-monetary compensation, where the infringer is required
to provide an equivalent of the lost goods to the injured party. Although this method is not
explicitly mentioned in the Civil Code, it can be inferred from Article 781, which allows the
judge to choose the compensation method. This method is similar to the provision in Article 209
of the Iraqi Civil Code, which allows the court to order restitution of similar goods in the case of
damages involving goods that can be replaced. However, non-monetary compensation is not
suitable for trade secrets because trade secrets do not have an equivalent in the market.
4.
Order to Perform an Act Related to the Wrongful Act:
Another method of
compensation in the Afghan legal system involves the judge ordering the individual to perform
an act related to the wrongful and damaging act. While this method can be implicitly derived
from Article 781 of the Civil Code, which grants the judge full discretion in choosing
compensation methods, the Afghan Law on the Protection of Commercial and Industrial Secrets
explicitly recommends this method of compensation. As stipulated in Article 10 of this law: "1)
The court, upon the request of the person mentioned in Article 9 of this law, shall take
precautionary measures as follows:
1.
Cease the wrongful use of commercial and industrial secrets,
2.
...
3.
Obtain an undertaking from the violator to prevent the disclosure of commercial and
industrial secrets now and in the future."
Therefore, ordering the performance of an act related to the wrongful act is considered
one of the best methods of compensation, as it can, similar to the restitution of property, restore
the situation to its previous state. This is because it prevents the unlawful possession of
commercial secrets, which leads to harm to the owner of the secrets.
Criteria for Determining Compensation
In order to compensate for the damages suffered by the injured party, it is necessary to
establish the time and place that will serve as the basis for determining the amount of
compensation. The judge is required to base the compensation on these criteria. Accordingly, the
time and place criteria for compensation in the Afghan legal system, particularly in relation to
trade secrets, will be examined as follows:
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a) Criterion for Determining the Time of Compensation:
Although various criteria for
determining the time of compensation have been discussed in legal doctrine, the Afghan Law on
the Protection of Commercial and Industrial Secrets explicitly addresses this issue. Article 11,
Section 1, Clause 1 of the law states: "Compensation equivalent to the damage shall be made
based on the rate of the day the damage occurred." Therefore, there is no dispute regarding this
matter. The criterion for determining the time of damage is derived from Islamic jurisprudence.
However, criticism has been raised against this view, arguing that it does not align with the
social dynamics and inflation prevalent in society. It is suggested that the criterion for
determining the time of compensation should instead be based on the day of payment.
b) Criterion for Determining the Place of Compensation:
Although the Civil Code
and the Afghan Law on the Protection of Commercial and Industrial Secrets do not explicitly
address the place of compensation, Islamic jurisprudence dictates that the place of the damage is
the determining factor for compensation. Since the Civil Code and the Law on the Protection of
Trade Secrets are applicable within the geographical boundaries of Afghanistan, it can be
concluded that in Afghanistan, and in line with Islamic jurisprudence, the place of the damage is
accepted as the criterion for determining compensation.
Legal Action
A legal action, in contrast to a legal event, refers to voluntary activities undertaken to
create a specific legal effect, and the law attaches the desired effect to it (Katouzyan, 2016, p.
281). In the case of the violation of trade secrets, when the right to compensation arises, the first
step to enforce this right is the decision made in the form of a unilateral action by the owner of
the trade secret or a joint action by the injured party and the infringer. In the following, bilateral
and unilateral legal actions will be studied under the terms of "contract" and "unilateral
declaration.
Contract
The Civil Code of Afghanistan defines a contract in Article 497, Paragraph 1, as: "A contract is
an agreement of two wills to create, modify, transfer, or release a right within the limits of the
law." While the principles of freedom of contract and the autonomy of will are fundamental to
the validity of contracts, in the case of civil liability arising from the violation of trade secrets—
where the regulations are mandatory and relate to public order—these principles cannot be
applied, as the scope of the autonomy of will is limited when it conflicts with public order
(Rahimi, 2018, pp. 130-131). To better understand this, it is necessary to divide the discussion
into two parts: the conclusion of a contract before the damage occurs and the conclusion of a
contract after the damage occurs.
1.
Conclusion of a contract before the damage (Obidat and Mazi, 2014, p. 399 and
Abasi and Mahdipoor, 2010, pp. 4-5):
If the owner of a trade secret agrees with a person who
has been granted permission to use the trade secret, stating that if the person authorized to use it
negligently discloses the trade secret to a third party, resulting in a violation, the authorized
person will not be held responsible, then the validity of such an agreement must be analyzed. It is
necessary to differentiate between situations where the negligence of the authorized person
involves the intentional disclosure of the trade secret. In such cases, the contract that permits an
illegal and unlawful act would be against public order and invalid. This is because Article 830 of
the Civil Code stipulates: "2) The agreement of the parties to exempt any liability arising from
the failure to perform their contractual obligations is permissible, but liability resulting from
fraud or gross negligence cannot be waived by agreement of the parties..." Therefore, any
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agreement that authorizes actions contrary to public order and mandatory rules is invalid.
However, if the agreement only concerns the removal of liability and provides rational benefits
for both parties, it can be considered valid, and the authorized person may refer to the contract
based on their exemption from liability (Rahimi, 2018, pp. 130-132).
2.
Contract after the occurrence of damage:
It is beyond doubt that after the damage
occurs, it is possible for the owner of the trade secret and the infringer to reach an agreement
through a settlement contract to compensate for the damage, convert the damage, or eliminate
the damage. Such an agreement does not violate public order or mandatory rules. In fact, the
legislator has emphasized this, as such agreements help reduce the number of lawsuits in courts,
do not harm the reputation of traders commercially, and are more effective in maintaining the
confidentiality of trade secrets.
Unilateral Act
A unilateral act or legal action refers to an activity carried out by the will of one person,
which produces legal effects. Divorce, rescission, and promises are examples of such legal
actions. The Civil Code of Afghanistan, in Article 751, treats unilateral acts according to the
rules of contracts, stating: "A unilateral will is subject to all the provisions related to contracts,
unless the presence of mutual consent between two parties to create an obligation is deemed
necessary."
Just as contracts can play a role in damage compensation, unilateral will can also have an
impact in this context. To understand the role of unilateral will in civil liability arising from the
violation of trade secrets, it is necessary to examine the role of unilateral will from two
perspectives:
1.
Consent before the occurrence of damage:
If the owner of the trade secret grants
permission to a person to use the trade secret, and as a result, damage occurs to the owner of the
trade secret, the violation of the trade secret is no longer an issue, and the damage caused is
permissible, as it is considered a part of legitimate business competition. Therefore, the consent
of the trade secret owner as a unilateral act prevents civil liability from being imposed on the
user.
2.
After the occurrence of damage:
If a trade secret is violated, the owner of the trade
secret can eliminate civil liability for the violation through a release or waiver of the right to
compensation. In this way, the heirs and successors of the trade secret owner will not have the
right to claim compensation for such a violation.
Precautionary Measures
Precautionary measures refer to actions taken temporarily to prevent future damage or to
prevent the escalation of damage in the future (Abhari, Mohammadi, and Nemati, 1399, p. 117;
Jouhri et al., 1391, p. 3). One of the actions that plays a significant role in protecting trade secrets
and can prevent further damage in the event of a breach of trade secrets is precautionary
measures. These measures can also act as an important deterrent to the violation of trade secrets
before any harm occurs. Although precautionary measures are implemented by the courts based
on the Law on the Protection of Trade and Industrial Secrets, the significance of these measures
in preventing or limiting damage in the context of trade secrets is such that it deserves separate
attention.
The Law on the Protection of Trade and Industrial Secrets specifies precautionary
measures as follows: "(1) Upon the request of the individual mentioned in Article 10 of this law,
the court shall decide to implement the following precautionary measures:
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1. Suspension of the wrongful use of trade and industrial secrets
2. Issuance of an order for the destruction of documents containing trade and industrial
secrets in the possession of the violator,
3. Obtaining a commitment from the violator to prevent the disclosure of trade and
industrial secrets in the present and future."
The measures mentioned in this article relate to actions that can help prevent
unauthorized use and future harm to the injured party.
Article 10, paragraph 2 of the same law also explicitly addresses the possibility of
extending this period until a suitable time, stating: "The court may extend the duration of the
measures mentioned in paragraph (1) of this article, depending on the circumstances, for an
appropriate period to eliminate the commercial benefit gained by a third party through the
misuse of trade and industrial secrets."
Thus, three main precautionary measures are foreseen in the Law on the Protection of
Trade and Industrial Secrets of Afghanistan. Some of these measures prevent the continuation of
trade secret violations, such as parts 1 and 3 of Article 10, while others are useful for preventing
initial violations of trade secrets, such as paragraph 2 of Article 10.
Although Article 10 of the law specifies that the adoption of these measures is the
responsibility of the court, under the Law on Commercial Arbitration, the authority to implement
precautionary measures also lies with the arbitration panel.
Lawsuit Filing
The right to file a lawsuit is sometimes introduced as a direct consequence of civil
liability; however, it is more accurate to define the direct consequence of civil liability arising
from the breach of trade secrets as the right to compensation for damages. This means that if
compensation is not voluntarily provided, the injured party may file a lawsuit against the violator
based on their right to seek compensation (Barikloo, 1394, p. 248).
Therefore, filing a lawsuit is one of the secondary consequences of civil liability arising
from the breach of trade secrets, which follows from the right to compensation. The injured party
can turn to the courts and arbitration to seek their rightful compensation. In the following, the
various methods of pursuing the right to compensation will be examined.
Recourse to Commercial Courts
Courts, being the arm of justice in any country, represent one of the most important
methods of resolving disputes related to the right to compensation for damages. This is because,
when the violator of trade secrets does not voluntarily compensate for the damages, they must be
compelled through the courts and the coercive power of the state. To understand the role of
courts in enforcing the rights of the trade secrets owner and ensuring compensation, the
following points are discussed:
1.
Parties to the Lawsuit
: For a lawsuit to be filed, it is necessary that the parties to the
dispute—referred to as the claimant (plaintiff) and the defendant—be present. The Civil
Procedure Code defines the parties to a lawsuit in Article 6, stating: "The person who seeks the
right is the claimant, and the person from whom the right is sought is the defendant." Therefore,
the parties to the lawsuit are the claimant (plaintiff) and the defendant.
According to the above definition, the owner of the trade secrets becomes the claimant,
and the violator of the trade secrets is the defendant. The trade secrets owner can claim their
right only if the damage has been directly and immediately caused to them, and cannot claim
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damages on behalf of others. Heirs, successors, or representatives of the owner of the trade
secrets can also file a lawsuit as claimants if they prove their legal capacity.
The defendant, from whom the right is being sought, is the one who has violated the trade
secrets. For the defendant to avoid bearing the cost of damages, they must defend themselves
against the claimant by providing legal evidence and documentation to counter the claims and
evidence presented by the claimant.
2.
Subject Matter of the Lawsuit
: The subject or claim of a civil liability lawsuit arising
from the violation of trade secrets may involve the right to compensation for damages or
precautionary measures to prevent further harm to the trade secrets owner. To compensate for
damages, it must first be proportional to the loss, and secondly, the compensation must be
monetary because it is not possible to compensate for trade secret damages by restoring them or
providing a substitute in the market.
Additionally, in some cases, the trade secrets owner may seek actions such as
implementing precautionary measures to prevent the violation of trade secrets or mitigate future
harm. In this context, Article 10 of the Law on the Protection of Trade and Industrial Secrets in
Afghanistan defines measures like the destruction of documents containing trade secrets, halting
improper use of trade secrets, and obtaining a commitment from the violator not to disclose trade
secrets as actions that can be requested in a lawsuit.
3.
Nature of the Court's Ruling
: There is a difference of opinion regarding the nature of a
court's ruling in civil liability cases arising from the violation of trade secrets. Some believe that
the court's ruling has a constitutive effect, meaning that the right to compensation arises only
when the judgment is issued, and therefore, delayed payment damages are not applicable.
However, the prevailing opinion is that the court's ruling has a declaratory effect, and delayed
payment damages should apply, as compensation may be provided before the judgment is issued
or the damage may be transferred to another party (Safai & Rahimi, 1400, p. 249).
4) Advantages of Referring to Commercial Courts
:
•
Specialized Judges:
Judges in commercial courts are experts in commercial law, which
ensures more accurate and informed rulings on issues related to trade secrets and other
commercial matters.
• Less Formal Procedures:
Commercial courts often have more flexible procedural rules,
which can streamline the resolution of disputes, making it less formal and quicker than in general
courts.
• Fair and Equitable Rulings:
The specialized nature of commercial courts allows them
to provide fair and equitable decisions based on the particular needs and dynamics of business
and trade law.
•
Ability to Enforce New Laws:
Commercial courts are better equipped to implement and
enforce new laws, particularly in the rapidly evolving fields of commercial law and intellectual
property.
•
Recognition of New Intellectual Property Issues:
Specialized judges in commercial
courts are more capable of identifying and addressing emerging issues related to intellectual
property and new trade secret protections.
• Faster Resolution Compared to General Courts:
Commercial courts tend to have
faster proceedings than general courts, thus resolving commercial disputes more expeditiously.
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•
Encouragement of Trade Growth:
The swift and effective resolution of commercial
disputes helps promote trade, encouraging businesses to invest and engage in international
markets.
(For further reading, see Aslamzada, 1399, pp. 129-130).
5) Disadvantages of Referring to Commercial Courts:
• Non-enforceability of Rulings at the International Level: One major drawback is that
decisions made by commercial courts may not be enforceable internationally, especially in cases
involving cross-border issues or international trade secrets.
• Inflexibility of Laws: Commercial courts may operate under rigid legal frameworks that
may not easily adapt to evolving commercial needs, potentially hindering the resolution of novel
issues.
• Damage to Business Reputation: Disputing commercial matters in court, particularly
those involving trade secrets, may harm the reputation of businesses, leading to a loss of
consumer trust or business relationships.
(For further reading, see Aslamzada, 1399, pp. 130-131).
Conclusion
This study, focusing on the effects of civil liability resulting from the violation of trade
secrets in the legal system of Afghanistan, has examined the importance of civil protection for
trade secrets as intangible assets in today's business world. Trade secrets, which play a crucial
role in success and economic competition, are exposed to various threats. Therefore, maintaining
the confidentiality of these secrets is of particular importance for businesses and individuals
engaged in commercial activities.
This paper analyzed the effects of civil liability resulting from the violation of trade
secrets in four key legal dimensions:
1. The Right to Compensation: One of the primary effects of civil liability is the right to
compensation for trade secret owners. According to Afghan law, when a trade secret is violated
by an individual or an institution, the injured party may approach the court to seek compensation
for both direct and indirect damages. This compensation serves as a main tool to restore the
status quo before the harm occurred, providing protection for trade secret owners against
potential violations.
2. The Right to Utilize Precautionary Measures: Another legal right for victims of trade
secret violations is the right to utilize precautionary measures. In the event of a trade secret
violation, owners can use legal measures, such as requesting a temporary injunction to
immediately stop the disclosure of sensitive information. These precautionary measures are
especially significant in cases where further and broader harm to trade secrets may occur, and
they have an immediate effect.
3. The Right to File a Lawsuit: Trade secret owners have the right to file lawsuits in case
their secrets are violated and defend their rights through legal channels. This right not only
serves as a tool for the enforcement of trade secret owners’ rights but also strengthens business
trust in society. Moreover, the ability to file lawsuits provides individuals and businesses with
the assurance that, in the event of a violation, they can resort to legal authorities to pursue
damages.
4. The Right to Utilize Legal Action: This paper specifically emphasized the right to utilize
legal actions to stop the activities of trade secret violators. Trade secret owners can use legal
tools such as restraining orders or injunctions to prevent any unauthorized use of their secrets.
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This legal action is especially important when trade secret violations continue on a
recurring basis.
The research results indicated that, while Afghan law covers civil liability
comprehensively and accurately, there are practical challenges and execution problems in fully
implementing these principles. The lack of transparency and adequate enforcement guarantees in
certain cases prevents the complete realization of legal protections. In this context, the need for
legal reforms and improvements, particularly in strengthening enforcement measures and
increasing the legal awareness and education of business practitioners, is evident.
Ultimately, this paper suggests that to enhance the protection of trade secrets in
Afghanistan, the country's legislator should focus on the development and improvement of four
key legal aspects—compensation, precautionary measures, the right to file a lawsuit, and the
right to use legal actions. Given the expansion of trade relations and their complexity, these
measures can help reinforce legal security in the commercial sector and create a safer
environment for economic activities in Afghanistan.
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