Knowledge mobility, trade secrets and non-competes: lessons from the common law tradition

Abstract

Competitive markets require mobile employees. The right to work, personal autonomy and traditional legal principles in the labour law field also favour employee mobility. Non-competes in employment contracts offend these principles In the common law world there has been little statutory intervention in the area of post-employment non-competes. Nevertheless, there is a strong case in favour of considering statutory interventions as well as judicially crafted developments that could mitigate the negative effects of the law of non-competes as it presently stands. In this contribution the author presents some alternative strategies, with particular focus on the common law jurisdictions, but also of general relevance. The conclusion is that the policy reasons for reconsidering the law of non-competes are compelling, and a survey of some jurisdictions in both the common law and civil law traditions presents some interesting examples of appropriate measures.