En analyse af fortrolighedsaftalers virkning i danske ansættelsesforhold

Michael Bredahl Thomsen

Student thesis: Master thesis

Abstract

The subject of the thesis is an analysis of the usability and efficiency of non-disclosure agreements (hereinafter; NDA) in Danish employment relationships. To examine the efficiency of a NDA in employment relationship, the first step was to clarify the present level of protection of trade secrets to find out if it is possible to obtain a better protection from the NDA. The second step was to examine wherein the boundaries of the freedom of contract lies, since it is fairly given that an employer can not restrict the free movement of labor through the contract of non-disclosure. In this chapter it was also analyzed, which knowledge can be the subject of NDA, in which extend the contractual obligations can be upheld, and eventually if the contract could provide the employee with a better protection of confidential information. Another point of analysis was the enforcement of sanctions if the contract was violated and whether it is possible to uphold an agreed penalty clause in the NDA. This would provide a much better consequence for the employer, since it would be less important to document the losses suffered from being deprived of the confidentiality of the trade secrets. In the economic analysis of the NDA, it was examined if the employer, acting as the principal and hiring an agent, could design the contract, so that the agent would have a self interest in upholding the contractual obligations. Two ways of doing this was considered: The first involved a penalty clause, which would serve as a preventive measure, so that the agent would not find it profitable to cheat on the contract, since the consequence if caught would outweigh the possible revenue from cheating. The second method was to give the agent a monetary compensation as long as the contract was uphold, so that the agent would also have something to loose in breaking the contract. The possibilities of sharing the risk and benefits with the agent was also considered, and proved to be quite useful in helping to obtain the goal of preserving the confidential information. In both the economic and judicial analysis non-contractual solutions were considered to reach the goal of maintaining the confidential information, and these actually proved to be very costefficient in several cases.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
LanguageDanish
Publication date2013
Number of pages275