Invoking the Nullity of Non-compete Agreements in Employment Law: A Comparison of Turkish and Belgian Law

Abstract

Can employers invoke the nullity of non-compete agreements concluded with employees? Noncompetition agreements prohibit employees from competing with their employers after the termination of the employment contract. The parties can conclude a non-compete agreement only if the validity conditions laid down in statutory law are met. If not, the agreement may be deemed invalid. The assertion of invalidity by employers may produce some unexpected and unfair detrimental consequences for employees if the agreement is synallagmatic. For instance, employees who count on the validity of the agreement may find themselves denied their expected compensation after turning down opportunities that would breach the agreement and after finding a new non-competing job. Furthermore, the possibility of invoking invalidity afterwards may encourage employers to conclude invalid non-compete agreements, as it would pressure the employee nevertheless. Considering the power of employers over employees and that it is mostly the employers who draft non-compete agreements and offer to conclude them, their capacity to invoke invalidity must be carefully examined. Traditionally, in Turkish law, invalidity can be invoked by either party. However, considering the flexibilization of this norm, this study concludes that for synallagmatic agreements, only employees should be able to invoke invalidity. In Belgian law, on the other hand, the party with the right to invoke invalidity is already determined by case law. The study confines itself to examining these rules and pointing out the possible detrimental effects on employees. non-compete, Turkish law, Belgian law, comparative, validity, nullity, prohibition of competition, invoke, employment law and non-competition