Employee Know-How, Non-compete Clauses and Job Mobility across Civil and Common Law Systems

Abstract

The law relating to trade secrets and to enforcement of non-compete and confidentiality clauses in the post-termination phase impacts on the ability of employees to find new employment and to use knowledge accumulated in previous employment when they do. This article compares the approaches in select common law and civil law jurisdictions to these areas of law. The law is complex, not harmonized and often unpredictable, and a number of significant policy goals come into conflict. The article concludes that while calls for restricting non-competes have merit, they should be assessed in the context of the contiguous laws concerning other contractual clauses and trade secrets.