Non-compete clause in labor law

Abstract

The contractual regulation becomes more and more important in the world of work. The dynamic character of improving social relations raises the issue of convergence and adaptation of the certain legal structures of Civil and Labor Law. The Soviet and, by inertia, the Ukrainian Post-Soviet science of Labor Law have made significant efforts to record and deepen the differences between the approaches to the regulation of the labor and civil relations.
 In general, a considerable part of these works remain relevant, but in some cases they are hopelessly anachronistic and need doctrinal reversion with due regard to the challenges arising as a result of application of a principle of freedom of contract. In addition, the proclamation of the absolute autonomy of Labor Law in the Private law branches family could be considered as wrong and short-sighted, and could lead to stagnation and degradation of certain legal institutions. Non-compete clause or non-competing agreement is a clear example of the necessity to revise the classical approaches to the regulation of specific labor law elements.
 The Article focuses of the main aspects that deserve the special attention of both – the parties to the non-compete clauses and the judges who consider disputes arising from such agreements.
 It is about a question of who can be a party to the non-compete agreements; the issue of retribution (additional social and work or additional financial guarantees) for refusing to compete with the employer; reasonable temporal limits (term) of non-competition; spatial (geographical) extension of the scope of conditions of a non-compete clause; inadmissibility of the universal approach; maintaining commitment to the new business owner; dynamic character of the non-competing agreements; provisions of non-disclosure of the confidential information; liability for breach of a non-compete clause; territorial jurisdiction of this type of disputes; consistency of the non-competing agreements with the Ukrainian legislation.
 This research paper also provides the examples of case-law, which despite of being contradictory, allows us to trace the certain trends. It contents as well a range of conclusions regarding the legal character of a non-compete clause, the necessity of refraining from applying mono-liability (labor) for the breach of the non-competing agreement conditions. The Article also emphasizes the need to determine the legal framework for this type of agreements.