Measures of Central Tendency: Mean, Median and Mode
Drafting International Restrictive Covenants
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DRAFTING INTERNATIONAL RESTRICTIVE COVENANTS*
Wendi S. Lazar, Esq.
When drafting restrictive covenants—particularly
confidentiality and trade secret restrictions where global
enforcement is important—understanding the
considerations relevant for a U.S. or foreign court in
enforcing these provisions is critical. The scope of any
restrictions, as with any contract, will depend on the
interest of the parties. Counsel for employers will want
broad protections. Employee counsel (if there is an
opportunity for negotiation) typically want more
freedom of movement and flexibility for their clients.
Some general observations are appropriate for both:
OVERBROADNESS. A practitioner should avoid drafting restrictions that are overly broad.
LEGITIMATE BUSINESS INTERESTS. Information should be targeted for protection only if the
employer can show that without protection, legitimate business interests will be compromised.
SPECIFICITY. Drafting to limit restrictions to only what is necessary to protect the information or trade
secret at issue may both give the employer greater protection and the employee greater flexibility in
obtaining new employment.
KEY EMPLOYEES. In most foreign jurisdictions, noncompetition provisions should be reserved for key
employees who have access to highly confidential information or trade secrets.
SET-OFFS. Clear and unambiguous noncompetition provisions containing set-offs for garden leave
periods may ultimately both prevent a noncompetition provision from being found prima facie void or illegal
and limit the burden on the employee.
GEOGRAPHY. The geographic and temporal scope of the restriction should be limited to what is
absolutely necessary to protect the employer from unfair competition (as opposed to competition in a
general sense).
TIME. The period of time for the restrictive covenant to be enforced should be reasonable where you are
seeking enforcement. Anything over a year is likely questionable even with consideration, unless the
employee in question is a key or other highly specialized employee. In the case of trade secrets, the
protections can be broader than for restrictive covenants.
NO-HIRE. No-hire provisions in nonsolicitation clauses will likely be considered noncompetition
provisions in jurisdictions that void noncompetition agreements. Again, employers should craft
nonsolicitation provisions narrowly to avoid entire provisions being found illegal and non-enforceable.
LOCAL LAW. Be aware of local laws in regard to privacy rights and draft confidentiality provisions that
don’t conflict with the data protection laws in a particular jurisdiction or violate the employee’s privacy. In