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TRADE SECRETS AND THE ROME II REGULATION ON THE LAW APPLICABLE TO NON-CONTRACTUAL OBLIGATIONS

E.I.P.R. 2008, 30(8), 309-319 Christopher Wadlow. Abstract: Discusses the protection of trade secrets in private international law, focusing on the impact of Regulation 864/2007 (Rome II). Notes what is determined by the applicable law and details the approach of the travaux preparatoires and Regulation to unfair competition. Reflects on the problems that lack of a harmonised trade secrets law poses for the practical application of the three alternative rules in art.4, including the difficulty of applying the common personal law rule, establishing what constitutes damage and determining the "proper law" of the tort. Introduction This is the second of two connected articles on the protection of trade secrets in private international law. The first, published as [2008] 30 E.I.P.R. 269, dealt with jurisdiction over trade secret actions under the Jurisdiction Regulation. [FN1] Like the present article, which deals specifically with the law applicable to non-contractual claims for trade secret protection, it was based on a presentation given by the author at the Centre for Intellectual Property and Information Law (CIPIL) Conference Breach of Confidence and Trade Secrets: Domestic Developments and Comparative Perspectives under the title "Trade Secrets in Private International Law". [FN2] At that time, the text of the Rome II Regulation [FN3] had not been finalised, and references to it were necessarily tentative. Now that the Regulation has been adopted and is about to come into force, [FN4] it is all too clear that its application to trade secret actions cannot be summarised in a few words.

Full post as published by The Trade Secrets Vault on July 12, 2008 (boomark / email).