معايير التزام العامل بعدم منافسة صاحب العمل في ضوء التشريع المقارن و أحكام محكمتي النقض الفرنسية و التمييز الكويتية

الملخص EN

The obligation arising from the non-competition clause is a treaty obligation undertaken by the consent of the parties to the contract of employment, whereby the employer seeks to protect its interests by not attracting their customers or disclosing the secrets that the employee has been exposed to while working, but at the same time constitutes an infringement of the principle of freedom of work.

This study was designed to strike a balance between protecting the freedom of the worker to choose his or her own employment and the right of the employer to protect his or her legitimate interests, and to regulate the conditions of non-competition in employment contracts and determine the criteria for their validity, through the introduction of some comparative legislation and the established jurisprudence of the French Court of Cassation.

The study was based on the analytical descriptive method of Kuwaiti labor texts and comparative legislation, reviewing the judgements of the Kuwaiti Courts of Cassation and the French Cassation Court and its position on the non-competition clause.

The study concluded, inter alia, that the non-competition clause is a formality requirement that produces no effect unless it is contained in a written agreement, that it must be specific in terms of place, time and activity or be considered invalid, and that the worker must be compensated for his obligation not to compete with just compensation commensurate with the scope of the prohibition of work.

If the worker breaches his obligation not to compete, his contractual liability is performed, allowing the employer to claim the penalty clause if agreed, or the worker to perform in kind his obligation to compensate in the event of damage, and the employer who hired the worker with knowledge of the non-competition clause.