All Quiet on the Eastern Front: Insights from the Common Law Experience and Public Law Perspectives on Non-Compete Agreements under Turkish Labour Law
Annales de la Faculte de Droit d'Istanbul, sa.78, ss.186-211, 2026 (Scopus)
- Yayın Türü: Makale / Tam Makale
- Basım Tarihi: 2026
- Doi Numarası: 10.26650/annales.2026.1820372
- Dergi Adı: Annales de la Faculte de Droit d'Istanbul
- Derginin Tarandığı İndeksler: Scopus
- Sayfa Sayıları: ss.186-211
- Anahtar Kelimeler: economic analysis of law, judiciary discretion, labour mobility, legislative omission, Non-compete agreements, rule of law, social dialogue
- Kocaeli Üniversitesi Adresli: Evet
Özet
According to the prevailing scholarly opinion in Turkish law, influenced by Swiss doctrine, the validity of non-compete agreements should primarily be assessed in the light of the circumstances existing at the termination of the employment relationship. This article challenges this approach by drawing on English case law. It demonstrates that the broad judicial discretion exercised by the 11th Civil Chamber of the Turkish Court of Cassation in modifying non-compete clauses operates without sufficiently articulated criteria, thereby entailing a risk of generating uncertainty in practice. Despite the significant impact of non-compete agreements on labour mobility, Turkish legal scholarship has largely confined the debate to private law doctrine, with limited engagement in labour economics or empirical policy analysis. The article contends that the absence of legislative and administrative guidance raises concerns regarding legal certainty, legal predictability, and good governance. In light of the 2024 decision of the Turkish Constitutional Court on Article 444 of the Turkish Code of Obligations, it further argues that a more rigorous constitutional scrutiny was warranted. This article ultimately proposes a more transparent and impact-oriented framework capable of enhancing the coherence of the rule of law.