Cláusulas de no competencia y el derecho al trabajo.

Abstract

This paper examines the legal validity of post-employment non-compete clauses in the Ecuadorian context through a doctrinal, normative, comparative, and practical approach. It shows that, although such clauses are applied across various economic sectors, there is no specific legal regulation or consolidated case law in Ecuador that defines their validity requirements. Based on an analysis of real contracts, it is evident that many of these clauses are applied for excessive durations and without financial compensation, thereby affecting fundamental rights such as the right to work and freedom of professional choice. The analysis carried out in this work, with countries such as Spain, Italy, France, Argentina, Colombia, and Chile, shows that these jurisdictions have developed regulatory or jurisprudential frameworks that require minimum conditions such as a reasonable duration, compensation, territorial delimitation, and justification based on a legitimate commercial interest. In light of the regulatory gap in Ecuador, it is proposed that a law be enacted to regulate these agreements, establishing standards for their validity and control mechanisms. This work concludes that, although non-compete clauses can be legitimate instruments, if their application lacks limits and compensation, as is currently the case, the contractual balance and workers’ rights are undermined, making immediate regulation necessary.