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Cet employé modèle qui, pendant de nombreuses années, a été la « cheville ouvrière » de l'entreprise... Ce V.R.P. performant ou ce vendeur, qui a su tisser des liens avec la clientèle... Cet ingénieur ou ce technicien, au fait des méthodes qui font la spécificité de l'entreprise... Ce jeune apprenti qu'on a initié, devenu depuis meilleur ouvrier... Autant de salariés dont l'entreprise peut redouter la concurrence. Le droit, bien souvent ressenti comme une contrainte par l'entreprise, vient ici lui donner les moyens de se protéger : une clause de non-concurrence, insérée dans le contrat de travail, assurera avec efficacité cette fonction, pour autant qu'elle respecte les conditions et les limites qu'impose le respect du principe de la liberté du travail. Parti d'une analyse précise et détaillée, tant des conventions collectives, que de la jurisprudence la plus récente, cet ouvrage fait le point sur toutes les exigences mises à la validité et à l'efficacité de cette clause. À vocation pratique, il contient - notamment - un guide d'élaboration et un guide d'application des clauses de non-concurrence dans le contrat de travail.
Traditional knowledge is largely oral collective of knowledge, beliefs, and practices of indigenous people on sustainable use and management of resources. The survival of this knowledge is at risk due to various difficulties faced by the holders of this knowledge, the threat to the cultural survival of many communities, and the international lack of respect and appreciation of traditional knowledge. However, the greatest threat is that of appropriation by commercial entities in derogation of the rights of the original holders. Though this practice is morally questionable, in the absence of specific legal provisions, it cannot be regarded as a crime. Intellectual Property Rights and the Protection of Traditional Knowledge is a collection of innovative research on methods for protecting indigenous knowledge including studies on intellectual property rights and sovereignty rights. It also analyzes the contrasting interests of developing and developed countries in the protection of traditional knowledge as an asset. While highlighting topics including biopiracy, dispute resolution, and patent law, this book is ideally designed for legal experts, students, industry professionals, and practitioners seeking current research on the development and enforcement of intellectual property rights in relation to traditional knowledge.
General clauses or standards (Generalklauseln, clauses generales) are legal rules which are not precisely formulated, terms and concepts which in fact do not even have a clear core. They are often applied in varying degrees in various legal systems to a rather wide range of contract cases when certain issues arise issues such as abuse of rights, unfairness, good faith, fairness of duty or loyalty or honesty, duty of care, and other such contract terms not lending themselves readily to clear or permanent definition. Here for the first time is a systematic discussion of this kind of rule in the evolving and dynamic context of European contract law. A collection of twelve insightful essays by leading European law authorities, the book is based on a conference organized jointly by the Society of European Contract Law (SECOLA) and l'association Henri Capitant, held in the `grande salle' of the French Supreme Court in Paris in 2005. The subject is approached along three distinct but interconnected avenues: comparative contract law, in which the different models to be found among Member States particularly the Germanic, French, and English common law systems are explored with an eye to differences and common ground;EC contract law, in which the general clause approach has tended to focus on labour law and consumer law, and in which the European Court of Justice more and more assumes the final say; andthe European codification dimension, in which a potential instrument on the European level would compete with national laws and develop closely with them. The authors demonstrate that a focus on general clauses in contract law, embracing as it does a wide range of types of contracts, helps enormously with the necessary integration of legal scholarship and economic approaches, and of legal science and legal practice in the field. Numerous analytic references to relevant cases and EC Directives give a practical impetus to the far-reaching but immediately applicable theory presented in this important book. As European contract law continues to develop rapidly, this seminal contribution is sure to increase in value and usefulness.
Trade secrets and post-contractual non-compete clauses (restrictive covenants) are intrinsically linked issues when analysed in the context of past and present employment. While trade secrets have been the object of legislation in a number of major jurisdictions during the last couple of years, post-employment restrictive covenants have been left out of such legislative activity. Still, they have come under increasing scrutiny of economists and may well come into legislative focus in the near future. As the chapters of this book highlight in detail, the approach to the protection of trade secrets, the conditions under which an employer can protect trade secrets and other business interests by way of a restrictive covenant, and the scope within which former employees by using the skills and knowledge can compete with a former employer, hugely differ from jurisdiction to jurisdiction. This is not only so for the effective scope, but also for the underlying doctrinal reasons, making a country-by-country comparison difficult, and a common structure of the chapters a challenge. After all, the topic involves international law (Paris Convention, TRIPS), domestic labour law, domestic sui generis protection, and, most importantly, domestic competition and unfair competition law, a field that up to now has defied all attempts of harmonisation beyond those categories as identified by Friedrich Zoll and implemented as Art. 10bis in the Paris Convention. This book features both comparative and country-specific chapters. The latter cover the major jurisdictions of Europe and Asia, while the former provide a subject-matter analysis by taking into account legislation and case law in a global context.
This comprehensive Research Handbook explores the rights of employers and employees with regard to intellectual property (IP) created within the framework of the employment relationship. Investigating the development of employee IP from a comparative perspective, it contextualises issues in the light of theoretical approaches in both IP law and labour law.
This book explores the conceptual framework of European employment law, focusing on understanding the law's construction of employment relationships. The book draws on extensive comparative research of the legal architecture of employment relations in national legal systems and EU law to analyse the traditional model of the contract of employment and the difficulties of using the traditional model to frame modern working relationships. The authors then present a new model of the foundations of employment relationships, based on the concept of a personal work nexus, and explore the potential of their model to shape the future development of employment law. Throughout the book, the authors analyse the interaction of domestic and EU employment law, and discuss the possibility of future legal harmonisation in the area. They conclude by exploring the potential for a common framework for European employment law, in the context of broader debates surrounding the harmonisation of European private law.
Unfree labor has not disappeared from advanced capitalist economies. In this sense the debates among and between Marxist and orthodox economic historians about the incompatibility of capitalism and unfree labor are moot: the International Labour Organisation has identified forced, coerced, and unfree labor as a contemporary issue of global concern. Previously hidden forms of unfree labor have emerged in parallel with several other well-documented trends affecting labor conditions, rights, and modes of regulation. These evolving types of unfree labor include the increasing normalization of contingent work (and, by extension, the undermining of the standard contract of employment), and an increase in labor intermediation. The normative, political, and numerical rise of temporary employment agencies in many countries in the last three decades is indicative of these trends. It is in the context of this rapidly changing landscape that this book consolidates and expands on research designed to understand new institutions for work in the global era. This edited collection provides a theoretical and empirical exploration of the links between unfree labor, intermediation, and modes of regulation, with particular focus on the evolving institutional forms and political-economic contexts that have been implicated in, and shaped by, the ascendency of temp agencies. What is distinctive about this collection is this bi-focal lens: it makes a substantial theoretical contribution by linking disparate literatures on, and debates about, the co-evolution of contingent work and unfree labor, new forms of labor intermediation, and different regulatory approaches; but it further lays the foundation for this theory in a series of empirically rich and geographically diverse case studies. This integrative approach is grounded in a cross-national comparative framework, using this approach as the basis for assessing how, and to what extent, temporary agency work can be considered unfree wage labor