Contractarian Approach in Protecting Trade Secrets in An Employment Context

Abstract

Today, we live in a knowledge-based society where everything is valued upon knowledge. Trade secrets in this knowledge-based economy amount to capital although there is insufficient protection for them compared to other intellectual property rights. In a typical scenario, an employer believes that the comprehensive employment contract which includes non-disclosure and non-competition clauses would be the best way to protect their trade secrets from employees. However, these restraint of trade clauses may prejudicially affect employees’ right to have employment options. As such, this paper proposes that the courts should be able to equally concern the rights of employers in protecting trade secrets and the rights of employees in terms of their right to employability.