Can Data Sharing Agreements and Non-Disclosure Agreements Be Notarized in the Philippines?

Short answer

Yes. Data Sharing Agreements (DSAs) and Non-Disclosure Agreements (NDAs) are private contracts that may be notarized in the Philippines. Notarization is optional in most cases (there is no general law that requires it for DSAs/NDAs), but it can be strategically useful for evidentiary, regulatory, or cross-border reasons.

The legal backdrop (Philippine context)

Civil Code: Contracts are valid if they have consent, a determinate object, and cause (consideration). Form is generally not essential for validity unless a special law requires it (which is not the case for DSAs/NDAs).
Rules on Notarial Practice: Notarization converts a private document into a public document, giving it a presumption of due execution and authenticity and making it self-authenticating in court.
Rules on Evidence / Electronic Evidence: Electronic contracts and signatures are legally recognized. A wet-ink, notarized copy isn’t required for enforceability in most business contracts—but notarization can simplify evidentiary hurdles.
Data Privacy Act of 2012 (DPA) and its IRR: Data sharing must be lawful, transparent, and proportionate. The National Privacy Commission (NPC) expects data sharing to be covered by a written DSA setting out specified controls. The DPA/IRR do not mandate notarization of DSAs.
Public procurement and agency rules: Particular agencies or procurement rules may require notarized forms (e.g., omnibus sworn statements) or prefer notarized agreements. That is a policy choice, not a universal legal mandate.

What notarization does (and doesn’t) do

What it does

Converts the contract into a public document with evidentiary presumptions.
Helps for cross-border use: a notarized document can be apostilled for use in other Apostille-Convention countries; for non-Apostille jurisdictions, consular legalization may be needed.
Can satisfy counterparties (banks, government bodies, auditors) who require notarized agreements as a matter of policy.

What it doesn’t do

It does not make an otherwise unlawful or non-compliant data sharing arrangement lawful.
It does not replace DPA/IRR requirements (lawful basis, purpose limitation, security, accountability, etc.).
It does not guarantee enforceability of overbroad, vague, or anti-competitive restrictions in an NDA.

When is notarization recommended?

High-value, high-risk data flows (e.g., sharing of sensitive personal information at scale).
Government-to-private or inter-agency DSAs where a notarized public document is customary or required by an internal manual.
Cross-border transactions where the foreign recipient or regulator asks for a notarized and apostilled contract.
Litigation-sensitive NDAs (trade secrets, R&D, deal rooms) where self-authentication matters.

In ordinary B2B or intra-group arrangements, a properly signed DSA/NDA (even e-signed) is usually sufficient.

Practical requirements for notarization

Personal appearance of signatories before the notary (as a rule). Bring competent evidence of identity (e.g., government-issued photo ID).
Capacity and authority:
- Corporations: Board/Secretary’s Certificate or equivalent authorizing the signatory.
- Partnerships: Partners’ resolution/authority.
- Foreign entities: Proof of authority from home jurisdiction; if executed abroad, consider apostille/consularization.
Choose the correct notarial certificate:
- Acknowledgment (typical for contracts, including DSAs/NDAs).
- Jurat (for sworn statements/affidavits).
Documentary stamp tax (DST): Some notarized documents attract DST. Whether your DSA/NDA does depends on its character and attachments. The notary or tax adviser can confirm current treatment.
Annex handling: If the agreement includes schedules (e.g., a data inventory), have signatories initial each page. Consider providing a data schema or sample rather than live datasets.
Record-keeping: Notaries keep a notarial register and often a copy of notarized instruments. Avoid embedding unnecessary personal or confidential data in the body of the document.

Data Sharing Agreements: what must be in them (notarized or not)

Even without notarization, a DSA should be in writing and cover:

Parties and roles (personal information controllers vs. processors; controller-to-controller vs. controller-to-processor sharing).
Purpose and legal basis for sharing (consent, contract necessity, legal obligation, vital interests, legitimate interests, etc.).
Data scope and sensitivity (personal, sensitive personal, privileged information).
Data subject rights and how parties will handle access, correction, deletion, and objections.
Security measures (technical and organizational), including encryption, access controls, segregation, and audit trails.
Retention and deletion (duration, secure destruction protocols).
Breach management (notification timelines, cooperation, who notifies the NPC and data subjects, incident response).
Cross-border transfers (where data will be stored/processed; applicable safeguards).
Sub-processors / onward sharing (conditions, approvals, flow-down obligations).
Audit and oversight (monitoring rights, compliance attestations).
Liability and indemnities (allocation of risk, caps/penalties).
Contact details of DPOs and escalation paths.
Termination (effect on data; return vs. deletion, evidence of destruction).

Tip: Keep the data inventory in a schedule that can be updated (with change-control) without reopening the whole DSA.

NDAs: enforceability points (with or without notarization)

Define Confidential Information clearly, with carve-outs (already known, independently developed, public domain, compelled disclosure).
Purpose limitation: Receiving party uses information only for the stated purpose.
Standard of care: Reasonable or industry-standard protections; stricter for trade secrets.
Access controls: Need-to-know basis; responsibility for employees/contractors.
Duration: Commonly 2–5 years; trade secrets may be longer or indefinite (while still a trade secret).
Remedies: Injunctive relief and damages; liquidated damages/penalty clauses must be reasonable (courts may reduce unconscionable penalties).
Return/Destruction: At end of discussions or upon demand; certification of destruction.
Interaction with labor/competition law: NDAs are generally enforceable; non-compete/non-poach provisions are scrutinized for reasonableness.

E-signatures, e-contracts, and notarization

Electronic signatures are valid in the Philippines. Most DSAs/NDAs can be fully e-signed and remain enforceable.
Notarization is a separate act that, under prevailing rules, typically requires physical presence before a commissioned notary within their territorial jurisdiction, with original IDs and wet-ink signatures.
Remote/e-notarization has been cautiously piloted under limited court guidelines; availability is not universal. If you need a notarized DSA/NDA, plan for in-person notarization unless a local notary expressly offers a court-authorized remote process.

Cross-border execution and the Apostille

The Philippines is a party to the Apostille Convention. A notarized DSA/NDA can be apostilled by the Philippine competent authority for recognition in other apostille countries.
For signers outside the Philippines:
- Execute before a local notary in their country and get an apostille (or consular legalization if the country is not in the Convention), or
- Sign before a Philippine Embassy/Consulate abroad, which can perform consular notarization, or
- Use counterpart signature pages: each party signs and notarizes where they are; the counterparts together form one agreement.

When notarization can be a bad fit

Speed and logistics: Urgent deals may not wait for personal appearance scheduling.
Confidentiality leakage: Notaries keep registers and often retain copies. Keep sensitive details in annexes and minimize personal data exposure.
False confidence: A notarized but non-compliant DSA still violates the DPA; a notarized but overbroad NDA can still be curtailed.

Step-by-step playbooks

If you decide to notarize a DSA

Finalize the DSA with all privacy controls and schedules.
Prepare authority documents (Board/Secretary’s Certificate; IDs).
Book a notary within the signer’s city/province.
Sign in wet ink before the notary; initial all pages and annexes.
Confirm any DST and obtain official receipts.
For foreign use, obtain an apostille after notarization.

If you decide not to notarize

Keep it written (electronic is fine), with clear audit trails (signing platform certificates, server logs).
Ensure role clarity, legal basis, and security are robustly documented.
Maintain an execution packet: signed PDF, signing certificate, email transmittals, version history.
For NDAs, maintain a disclosure log (who received what, when, and for what purpose).

Frequently asked questions

1) Are DSAs/NDAs invalid if not notarized? No. They are generally valid if the essential elements of a contract are present. Notarization affects evidence, not validity (absent a law requiring a special form).

2) Can we notarize an agreement signed electronically? Typically, the notary requires personal appearance and wet-ink signatures for the specific copy to be notarized. If you signed electronically already, you may execute a conformed, wet-ink counterpart for notarization.

3) Do we need to register DSAs with the NPC? The DPA/IRR require written DSAs and accountability measures. Broadly speaking there is no across-the-board filing requirement for private-sector DSAs, though agencies, projects, or regulator-specific regimes may impose submissions or require the DSA to be available during audits.

4) Will a notarized NDA guarantee an injunction? No, but it helps with prima facie authenticity. Courts still assess scope, reasonableness, and proof of breach.

5) Are employees’ NDAs different? They often pair with employment contracts and policies. Ensure NDAs align with labor standards and do not impose overbroad restraints.

Takeaways

Can they be notarized? Yes.
Must they be notarized? Usually no.
Should they be notarized? Consider it for high-risk data sharing, cross-border recognition, government counterparties, or when evidentiary presumptions matter.
Regardless of notarization, the DPA’s requirements (purpose limitation, lawful basis, security, rights, breach response, accountability) and sound NDA drafting (clear scope, carve-outs, remedies, duration) are what truly protect you.

This article provides general information and is not a substitute for tailored legal advice.