Date of this Version

1-1-2013

Document Type

Journal Article

Publication Details

Published version

Arup, C., Dent, C., Howe, J., & Van Caenegem, W. (2013). Restraints of trade: The legal practice. University of New South Wales Law Journal, 36(1), 1-29.

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2013 HERDC submission. FoR code: 180115; 180118

© Copyright, University of New South Wales, 2013

ISSN

0313-0096

Abstract

This article tests these common assertions against the evidence of the practice. We have gathered data about the legal practice around the state supreme courts. That data includes the legal principles, legal proceedings, cited decisions and legal commentaries. But the article goes beyond this book law to report the impressions and insights gained from a set of interviews with practitioners. These interviews provide a uniquely nuanced picture. They reveal that there are occasions of under-enforcement or genuine compromise. Overall, though, the momentum is with the employer and the practice is a daunting one for many employees to navigate. In this article, following the provision of an introductory context, we identify the uncertainty in the legal principles that contributes to the influence of the legal practice. In the third section, the legal proceedings are examined and some recent cited decisions are mentioned. The fourth section characterises the nature of the parties decision making about litigation and locates the burden of uncertainty. The final section nominates some reforms that are aimed at reducing the burden, particularly as xperienced by employees who are subject to the restraints. We believe that they merit further consideration.

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This document has been peer reviewed.

 

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