L'usage des clauses de non-concurrence dans les contrats de travail

This article examines the use of covenants non to compete in employment contracts, clauses which raise the issue of firm intangible assets appropriation and the sharing of the rent with the employees. It relies on the recent theoretical developments that show how the law can ensure innovation and in particular on the institutional approaches which stress the incompleteness of contracts and the cost of courts intervention. Then analytical propositions are advanced in order to explain the recourse to covenants non to compete. Three kind of explicative factors are analysed: the degree of appropriation of intangible assets, the knowledge diffusion policy of the firms and the knowledge distribution between their members. After the presentation of the French law specificities, we base on the exploitation of a data set of more 400 employment contracts in order to study the statistical links between the use of covenants non to compete and the firms and jobs characteristics. Our results confirm the hypothesis that the employee?s capability to appropriate the intangible assets of the firm increases the probability to use this kind of contractual clause. These results are then discussed and completed by monographic data concerning certain jobs and professions.