Choice of Law in EU Trade Secrecy Cases

As trade secrecy has become a widespread strategy for appropriating returns from innovation, problems related to globalization have come to the fore. While the Trade Secrets Directive attempts to reduce inconsistencies among the protective regimes of member states, it falls far short of harmonizing the law. Furthermore, experience in the United States suggests that many of the concepts used in the Directive are susceptible to multiple interpretations. Examples include ‘use of experience’, ‘generally known’, ‘commercial value’ and ‘reasonable steps’. But despite the likelihood of divergence, the Directive does not include a choice of law rule and it is not evident how existing Conventions on applicable law would apply. Using the US experience and drawing on EU choice of law for other forms of intellectual property, this chapter offers views on the approach EU adjudicators should take to resolving transnational trade secrecy disputes.