Cross-Border Litigation of Trade Secret Misappropriation: a Critical Appraisal of Tort Jurisdiction Under Brussels I Recast

Abstract

This article tests whether Article 7(2) of the Brussels I Recast Regulation provides predictable jurisdiction for cross-border trade-secret disputes. By mapping unlawful acquisition, disclosure, and use as distinct torts, it shows how the rule’s current operation multiplies available fora, fragments claims, and raises uncertainty and costs. It then proposes a calibrated reinterpretation of the locus damni, based on treating the holder’s establishment as the place of primary damage (loss of control and asset devaluation) across all secrecy offences, thus consolidating jurisdiction and improving foreseeability. The analysis then examines alignment with the Rome II Regulation’s scheme and contends it can be preserved by channelling secrecy infringements through Article 6 on unfair competition, which supplies an alternative connecting factor and thereby averts potential consistency issues stemming from the proposed reinterpretation. This approach thus maintains systemic coherence, enhances legal certainty for innovators, and contributes advancing the goals of Directive 2016/943.