Choice of Law in EU Trade Secrecy Cases

The Harmonization and Protection of Trade Secrets in the EU: An Appraisal of the EU Directive (Jens Schovsbo, Timo Minssen, and Thomas Riis, ed. Edward Elgar Press 2020)

NYU Law and Economics Research Paper No. 20-50

20 Pages Posted: 19 Nov 2020 Last revised: 16 Dec 2020

See all articles by Rochelle Cooper Dreyfuss

Rochelle Cooper Dreyfuss

New York University - School of Law

Mireille van Eechoud

Institute for Information Law University of Amsterdam - Faculty of Law

Date Written: January 28, 2019

Abstract

As trade secrecy has become a widespread strategy for appropriating returns from innovation, problems related to globalization have come to the fore. Joint ventures among firms from different countries are now common; technological employees often switch jobs; modern business practices, including value-chain production methods, spread confidential information from developers to geographically dispersed manufacturers, distributors, sellers, and maintenance organizations. Moreover, developments in computer technology make it ever easier to take valuable information from remote locations.

As its Preface suggests, the Directive on the protection of undisclosed information was enacted in recognition of these potential cross-border problems. While it attempts to reduce inconsistencies among the protective regimes of member states, it falls far short of harmonizing the law. For example, it explicitly imposes only a minimum standard, allowing member states to enact stronger protection; it does not affect certain national rules on disclosure (art. 1); and it gives member states the right to make exceptions to protect their legitimate interests (art. 5). Furthermore, experience in the United States suggests that many of the concepts used in the Directive are susceptible to multiple interpretations. Examples include “use of experience” (art. 1); “generally known,” “commercial value” and “reasonable steps” (art. 2). But despite the likelihood of divergence, the Directive does not include a choice of law rule and it is not evident that existing instruments on applicable law produce clear and workable answers. Using the U.S. experience and drawing on EU choice of law for contracts and torts, including intellectual property infringement, this Chapter offers views on the approach EU adjudicators could take to resolving transnational trade secrecy disputes.

Keywords: intellectual property, trade secrets, harmonization, choice of law, undisclosed information, EU Directive on the Protection of Undisclosed Information

JEL Classification: K11, K19, K29, K33

Suggested Citation

Dreyfuss, Rochelle Cooper and van Eechoud, Mireille M. M., Choice of Law in EU Trade Secrecy Cases (January 28, 2019). The Harmonization and Protection of Trade Secrets in the EU: An Appraisal of the EU Directive (Jens Schovsbo, Timo Minssen, and Thomas Riis, ed. Edward Elgar Press 2020), NYU Law and Economics Research Paper No. 20-50, Available at SSRN: https://ssrn.com/abstract=3708249 or http://dx.doi.org/10.2139/ssrn.3708249

Rochelle Cooper Dreyfuss (Contact Author)

New York University - School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6258 (Phone)
212-995-4760 (Fax)

Mireille M. M. Van Eechoud

Institute for Information Law University of Amsterdam - Faculty of Law ( email )

Amsterdam, 1018 WB
Netherlands

HOME PAGE: http://www.ivir.nl

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