Cláusulas de não concorrência: parâmetros para a aferição de validade e eficácia nos contratos de licenciamento de know how

Abstract

This dissertation seeks to investigate the parameters for assessing the validity and effectiveness of non-compete clauses in know how licensing contracts based on the Brazilian legal system, the case law of the Courts and CADE, the uses and customs of the market and, in particular, from a re-reading of the aforementioned contractual provisions from the perspective of Civil-Constitutional Law. The study sought to investigate the validity and effectiveness of non-compete clauses, taking as its sources the values, postulates and principles that govern related legal relationships. To this end, we carried out jurisprudential and doctrinal research on the subject. We sought to understand the history of the application of non-compete clauses, their evolution over time, their methods of application and the parameters of validity and effectiveness applied by the Judiciary and recognized by the Doctrine. This work sought to outline the effects - post-contractual effectiveness - of non-compete clauses in technical knowledge licensing contracts based on a functional (dynamic) judgment, using the principles of the social function of the contract, economic balance, objective good faith, reasonableness and proportionality as instruments of interpretation. To this end, a study was carried out of the effects and parameters of the legality of non-performance clauses in competition, especially in the case of know how licensing contracts. The aim was to establish limiting criteria for non-compete clauses, taking into account the core interests involved in existing legal situations in the light of the protection of competition, free enterprise and social welfare.