The conflict between trade secret protection and freedom of employment in cross-border relations: Vietnamese judicial practice and comparative law

This study examines the conflict between enterprises’ rights to protect trade secrets and employees’ constitutional freedom of employment in cross-border relationships. Using doctrinal analysis, empirical research, and comparison with German, United States, and European Union law, the study identifies inconsistencies in Vietnamese judicial practice, particularly regarding non-compete agreements, jurisdiction, non-digital misappropriation, and the burden of proof. Cross-border disputes become especially complex when employees retain confidential knowledge through memory or move to foreign competitors. The study recommends codifying the validity conditions of non-compete agreements based on proportionality, reasonable duration, geographic scope, and mandatory compensation; introducing a shifting burden-of-proof mechanism in civil proceedings; and developing proactive corporate risk-management measures. These reforms would better balance trade secret protection with employees’ legitimate occupational mobility.