2022/12/01 by Christopher Mcmahon, Christopher McMahon, Alan Eustace
Social Sciences · #EU Law and Policy Analysis #European and International Law Studies #World Trade Organization Law
paper · pdf · doi:10.1093/indlaw/dwac025
openalex publication_date 2022/12/01 · openalex created_date 2025/10/10 · openalex updated_date 2026/07/28
Abstract Courts on both sides of the Irish Sea have handed down significant judgments in the field of post-employment restrictive covenants in recent years. This article argues that these cases expose the common law rules on restraint of trade as fundamentally inadequate for regulating non-compete clauses in the modern economy. Ultimately, the scope of these restrictive covenants can only be determined by examining the nature of the relevant market and defining the previous employer’s competitors. This article argues that courts should make full use of methods developed by EU competition law to define the limits of the relevant market, identify the competitors of the previous employer and assess the scale of the restraint. Although this method cannot fully determine the reasonableness of a non-compete clause, it would lead to more effective and systematic treatment of non-compete clauses that considerably improves upon the pragmatic and incompletely theorised approach currently taken by courts in both Ireland and the UK.