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Employment Law
Commentary
Volume 19, No. 11 November 2007
U.S. and E.U. Non-Competition Agreements
Compared and Contrasted
By Ann Bevitt and La Tanya N. James
W
ith employers operating, and
Delaware’s stance on the enforceability of
employees working, in the
non-competition agreements is consistent
global economy, knowing whether non-
with that taken by the majority of states
competition agreements will be enforced
in the United States. Delaware’s courts
in other jurisdictions is essential for both
will closely scrutinize a non-competition
those seeking to enforce and those likely
agreement as restrictive of trade, but
to be subject to enforcement action.
will generally enforce it if it is part of
Unfortunately, there is much variation
a valid agreement that is supported by
not only in the United States itself, with
consideration, is reasonable in time
different states adopting different stances
and scope, and serves to protect the
on whether non-competition agreements
employer’s legitimate economic interests,2
may be enforced, but also across the
which generally include the employer’s
European Union. This article will
confidential information and goodwill
highlight some of those differences, both
developed through customer relationships.3
in the United States and in tthe European
Furthermore, Delaware courts have
Union, and suggest how employers may
adopted the reasonable alteration approach,
prepare to meet the challenges of enforcing
which means that if the non-competition
non-competition agreements in and across
agreement is overbroad and unenforceable
various jurisdictions.1
as written, rather than finding the noncompetition agreement to be completely
The United States
Range of the different schools of thought
in the United States regarding the extent
unenforceable, the court may choose to
enforce the non-competition agreement to
the extent that it is reasonable to do so.4
of the enforceability of non-competition
California, on the other hand, has
agreements can be clearly seen from a brief
adopted a very different approach to
review of the divergent approaches taken
non-competition agreements. The general
by the courts in Delaware, California, and
rule in California is that non-competition
Virginia.
agreements are unenforceable. California’s
Business and Professions Code Section
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16600 declares that, with a few
some legitimate business interest; is
employee’s employment in accordance
exceptions, “every contract by which
not unduly harsh and oppressive in
with the employment contract; if the
anyone is restrained from engaging in
curtailing the employee’s legitimate
employer breaches the contract, for
a lawful profession, trade, or business
efforts to earn a livelihood; and is
example by not giving the employee
of any kind is to that extent void.” The
reasonable from the standpoint of
the contractually required notice of
general rationale for this prohibition
a sound public policy. Legitimate
termination, the non-competition
on non-competition agreements is
business interests include trade secrets
agreement will fall away and be
that “[t]he interests of the employee in
or other confidential information,
unenforceable.
his own mobility and betterment are
customer contacts, and knowledge
deemed paramount to the competitive
of methods of operation.10 A
business interests of the employers.”5
Virginia court will not modify a
However, there are general exceptions
non-competition agreement that
to the prohibition where non-
it determines is unenforceable as
competition agreements are connected
drafted. As a practical matter,
to the sale of a business or partnership,
this means that non-competition
dissolution of a partnership, or
agreements that apply to employees
dissociation of a partner from a
in Virginia, as well as in other states
partnership. Further, California’s
that follow a similar stance, must be
courts have created an exception
drafted with extreme care.
9
for agreements that are necessary to
protect the employer’s trade secrets.6
Somewhere in between the divergent
positions taken by Delaware and
California lies Virginia. Virginia
courts consider restrictive covenants
to be restraints on trade that are to
be carefully examined and strictly
construed.7 Virginia courts have
long disfavored the inclusion of
non-competition agreements in
employment contracts and construe
them directly in favor of the
employee.8 However, generally, a
Virginia court will enforce a noncompetition agreement if an employer
shows that the restraint, including the
time and geographic restrictions, is
no greater than necessary to protect
European Union
A similar difference in approach is
evident in the various Member States
of the European Union, as can clearly
be seen from a brief review of the
different approaches taken by the
United Kingdom, France, Germany,
and Italy.
Non-competition agreements are
prima facie against public policy
and therefore unenforceable unless
found to be reasonable in the interests
of the contracting parties and of
the public. There are two stages in
assessing reasonableness. Firstly,
the non-competition agreement
must be drafted to protect only the
legitimate proprietary interests of the
ex-employer.11 Legitimate interests
include customer/client/supplier
connections, trade secrets (or other
information of a confidential nature),
and the stability of the workforce.
Secondly, the scope of the restraint
must go no further than is necessary
to give adequate protection to the
ex-employer’s legitimate interests.12
“Scope” refers to geographical area,
United Kingdom
activities/subject-matter, and duration.
In the United Kingdom, non-
Of all the post-termination restraints
competition agreements are
placed on ex-employees, non-
commonly included in senior
competition agreements are assumed
employees’ employment contracts.
to be the most onerous and are
As a preliminary comment, if an
therefore scrutinized most carefully
employer wishes to enforce such
by the courts. Accordingly, they have
an agreement post-termination, it
generally been harder to enforce than
should ensure that it terminates the
other post-termination restrictions,
Page 2
employme nt law co mme ntary
although the courts have upheld non-
regarding the rationale behind such
competition agreements on the basis
a lengthy restraint period. Further,
that a restriction on solicitation would
if an employee has spent any time on
be difficult to police and therefore
“garden leave” prior to termination of
might not effectively protect the
employment, it is advisable to reduce
employer’s business interests.13
the duration of the covenant by an
Non-competition agreement covenants
equivalent period.
France
Non-competition agreements are
common in employment contracts
in France. They are not regulated by
statute but by case law and collective
bargaining agreements. They usually
prohibit the employee from working
were historically drafted by reference
In English law, the fact that the
for a competitor for a period of time,
to a radius or geographical area
employer has provided the employee
within a certain location. They must
from the employer’s premises but
with payment for any period of
be limited in duration and may be
are nowadays more usually drafted
restraint does not absolve the employer
reduced in ambit if considered to
to cover a territory over which the
from having to demonstrate that the
be unduly restrictive. Accordingly,
employee had influence or to which
covenant does not offend the public
in order to be enforceable, a non-
the employee’s activities related whilst
interest. As the courts will not strike
competition agreement must:
in employment. The courts pay
down the entire contract between
particular attention to the definition
the parties if one or more of the
of the activities or businesses in which
covenants in restraint are found to be
the covenant restrains the ex-employee
unenforceable, it is common practice
from involvement. Covenants must
to expressly provide for the survival
be limited to activities or businesses
of each covenant separately from one
which are in direct competition
another if one or more are found to
with the ex-employer’s business
be unreasonable and void. The courts
and which relate to activities which
may strike out sections of a covenant
the ex-employee carried out whilst
which are considered unreasonable,
employed by the ex-employer. Also,
provided what is left has meaning in
consideration for the restrictive
the more junior an ex-employee, the
its own right and does not require
covenant.
more reluctant the courts will be to
the court to re-write any part of it.
enforce non-competition agreement
However, the courts will not alter the
covenants. Further, the duration of
period of a restraint in order to make
such covenants must be as short as
an unreasonably lengthy restraint
possible. Covenants for periods up to
reasonable as regards duration.
six months will generally be held to
Finally, employers should be aware of
be of reasonable duration; anything
the contra proferentem rule whereby
longer will be closely scrutinized,14
courts will construe any ambiguity
and a duration of longer than 12
against an employer who has been
months will only be enforceable
careless in drafting.
a) be indispensable for the
protection of the legitimate
interests of the employer;
b)not totally preclude the employee
from being employed in his field;
c) be limited in time and
geographically; and
d)oblige the employer to provide
The most important element in
determining validity is whether in
fact the non-competition agreement
prevents the employee from working in
his field. Thus, even if the legitimate
interests of the employer justify the
restriction, the courts will focus on
whether the employee’s right to work is
in fact impeded.
in exceptional circumstances and
The non-competition agreement
with clear documentary evidence
cannot preclude the employee
Page 3
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from performing an activity which
defined the permitted geographical
unilaterally to pay the consideration,
is consistent with his education,
scope of a restrictive covenant. Each
or to render the non-competition
professional training, and professional
case must be analyzed individually,
agreement effective by paying the
experience. The courts will take into
considering whether the scope
consideration voluntarily; the employee
account the employee’s breadth of
precludes the employee from finding
will have to agree to the change, and
technical knowledge and the ease with
another job in his field. The court
there can be no compulsion on him to
which he could find a job in a different
has power to reduce the duration and
do so.
sector or industry.
geographical scope of a restrictive
In order for an employer to be
Germany
covenant.
In Germany, the following conditions
deemed to have a legitimate interest
A non-competition agreement
in enforcing a non-competition
is ineffective and unenforceable
agreement, the employer must be at
unless it includes an obligation on
risk of suffering damage as a result of
the employer’s part to pay financial
the employee’s violation of the clause.
compensation in consideration of
protect the legitimate business
In making this determination, the
the employee’s performance of the
interest of the former employer.
courts look to see if the old employer
covenant. There is some uncertainty
Normally, it can only give the
and the new employer compete in the
as to how this requirement is applied
employer protection in respect of
same industry or sector, and the extent
by the courts but the employer does
that part of the business in which
to which the employee poses a genuine
not have to pay the employee the
the employee was employed.
threat to his former employer. In
same level of remuneration that he
assessing the latter, French courts look
or she was earning, for the whole
to the extent to which the employee,
of the non-competition agreement
during his employment, had:
period. Some guidance may be
a) contact with customers;
b)access to sensitive company
information; and
c) access to know-how (“savior
faire”) which is deemed to be the
property of the employer.
obtained from collective agreements
that govern the employment terms
of most employees in France. One
such agreement provides that 50%
of the average monthly remuneration
(including fringe benefits and bonus)
must be paid. Another agreement
provides that one-third of monthly
Whilst there are no specific guidelines
remuneration is payable if only one
regarding the legally enforceable
manufacturing technique or product
duration of a non-competition
is concerned, two-thirds if more than
agreement, covenants limited to 12–24
one product or technique is concerned,
months are generally upheld, but the
and 100% for any period exceeding
assessment is made on a case-by-case
two years. An employer is unable to
basis. Further, French courts have not
insert an obligation into the contract
Page 4
must be met for competition restrictions
to be valid:
a) The prohibition must serve to
b)The prohibition may not
unreasonably hinder the
employee from making a living.
c) The prohibition is only binding if
the employer undertakes to pay
compensation for the duration of
the prohibition of at least 50% of
the income (including bonus and
benefits) earned by the employee
immediately prior to his or
her employment ending (the
obligation to pay compensation
can be excluded in contracts
with Managing Directors and
Supervisory Board Members). If
the contract specifies less than
this, the employee can choose
between taking the payment and
Employment Law Commentary
being bound by the restrictive
of termination for the duration of the
The compensation in favor of the
covenant or refusing payment,
restrictive covenant.
employee should not be symbolic,
in which case the restrictive
covenant is ineffective.
d)The prohibition may only be
The 50% compensation will be set off
against the employee’s other income
during the period of restriction, as
imposed for a maximum of two
far as such new income plus the
years. Any clause purporting to
compensation exceeds 110% of the
prohibit competition for more
employee’s last income with the
than two years can only be valid
employer. Additional complications
for the initial two-year period
may arise if the employee is unemployed
and is invalid for any period
while the restrictive covenant applies,
thereafter.
in that the employer will be obliged
f) The contract must be in writing,
and the employer has the burden
of proving that the employee
received a copy of the contract
duly signed by the employee in
original form.
The employer may at any time during
the employment waive the covenant
with 12 months’ notice. Further,
summary termination for an important
reason by the employer gives the
employer the right to declare within
one month of termination that it will
not enforce the restrictive covenant.
The same applies vice versa: upon
to reimburse to the employment office
30% of the unemployment benefit paid
to the employee, this reimbursement
month from termination that he will
not observe the restrictive covenant.
The employer can only avoid this result
a) the duration of the noncompetition agreement;
b)the geographic extension of the
non-competition agreement;
c) the kind of activities carried out
during the employment; and
d)the employee’s salary.
compensation for the non-
potential set off.
competition agreement clause
shall be paid every month together
Italy
with the salary during the course
In Italy, non-competition agreements
of the employment. In this case
are only allowed if:
a) they are evidenced in writing;
b)compensation is paid to the
employee; and
c) the restriction is confined within
time, and location.
may also choose to declare within one
on the following elements:
by the employee for the purposes of any
the employee may notify the employer
for operational reasons, the employee
the employee. The amount depends
The parties can agree that the
specified limits as to purpose,
If the employer dismisses the employee
comparison to the concrete sacrifice of
being treated as if it were salary received
summary termination by the employee,
that he will not observe the covenant.
unfair, or lacking proportion in
the compensation has the form of
an additional percentage added to
the salary.16 There is no minimum
amount of compensation.
The non-competition agreement can
cover activities different from those
that the employee carried out at the
employer’s company, as long as it
does not prevent the employee from
The duration of the restriction
carrying out any working activity
cannot be in excess of five years, in
related to his previous experience.
the case of executive personnel, and
three years in other cases. If a longer
duration is agreed upon, it is reduced
to the length indicated above.15
enforcement
From this brief survey of noncompetition agreement practice in the
jurisdictions referred to above, it is
by paying the full salary at the date
Page 5
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clear that the courts have developed
law would not violate the public policy
later-filed litigation. The California
(in common law jurisdictions such as
of the forum state. Although this is
Supreme Court has also determined
the UK) or have in place (in codified
generally the standard in California,
that the parallel action would not
jurisdictions such as France and
California’s strong public policy
divest California of jurisdiction unless
Italy) comprehensive guidelines on
against restricting employee mobility
and until it could be demonstrated
the reasonableness and enforceability
requires that California courts
that any judgment by the other court
of non-competition agreements.
generally disregard such choice of
was binding on the parties.
However, these guidelines only
law clauses.
function effectively where both
strong public policy, California courts
employer and employee consider
have overridden a choice of law clause
themselves bound by the same local
even though the employment contract
law. To illustrate some of the problems
containing the non-competition
which arise when one or both parties
agreement was performed outside
seek to rely on a foreign law, the
California by an employee who was
difficulties of trying to enforce a
not a California resident but who
foreign law non-competition agreement
was subsequently recruited by a
in California and in the UK are set
California employer for competitive
forth below. This review concentrates
“employment in California.”18
on two aspects of such enforcement:
whether the courts will respect and
apply a foreign choice of law clause if
themselves determining enforceability
and how, if enforceability has been
determined by a foreign court and
judgment issued, that judgment can be
enforced.
California
In the United States, the states
vary on whether they will enforce
a choice of law clause that requires
that a non-competition agreement be
interpreted under another state’s law.
Some states will enforce the choice
of law provision as long as there is a
sufficient connection to that other
state to support the choice of that
state’s law and as long as that state’s
17
Further, based on this
If a former employer avoids a race
to the courthouse, or wins the
race without the need for parallel
proceedings, the former employer may
have to take additional steps to enforce
any injunction that is awarded against
an employee who is not a resident of
the state in which the injunction was
awarded. Generally, if the forum court
had adjudicatory authority over the
subject matter and persons governed
The mobility of employees and the
by a judgment, then a final judgment
number of states that touch upon
in one state qualifies for recognition in
an employment relationship may
all 50 states.20 Therefore, all 50 states
lead to a “race to the courthouse”
must recognize any final judgment
to enforce or invalidate a non-
finding that a non-competition
competition agreement. Whoever
agreement is enforceable and valid
wins the race to the courthouse can
and has been violated. However, the
affect which state’s law is applied,
other states do not have to enforce
irrespective of the agreement’s choice
the injunction.21 Such enforcement
of law. The race might also result in
is a requirement only if the former
parallel legal proceedings in two for
employer takes the extra step of
that result in different outcomes.
following the other state’s procedural
Despite California’s strong interest in
rules for domesticating the judgment
protecting its employees from non-
or making it executory.
19
competition agreements, the California
Supreme Court has decided that it
would be inappropriate for a California
court to interfere with a parallel
proceeding pending in another state’s
court even if that litigation was the
Page 6
There is precedent for domesticating,
and subsequently enforcing, a foreign
injunction award in federal court in
California by filing for and receiving an
order and judgment of domestication.22
Employment Law Commentary
However, this precedent precedes
a signatory to Council Regulation
conventions which are given effect
a decision of the Supreme Court
(EC) No 44/2001 of 22nd December
by the Administration of Justice Act
providing that mechanisms for
on Jurisdiction and the Recognition
192026 will only be enforced if they
enforcing judgments do not travel with
and Enforcement of Judgments in
are orders for the payment of a sum of
the sister state judgment.
Civil and Commercial Matters
money. Accordingly, the enforcement
United Kingdom
Although the English courts will
generally treat a choice of law clause as
definitive, where a contract is entirely
domestic, i.e., where the employer,
employee, and place of work are in
the United Kingdom, the courts
will not allow the parties to elect a
foreign law as the applicable law. Also,
choice of law will be restricted by
the “mandatory rules of law” of the
law of the country which would be
applicable in the absence of a choice of
law clause. Whether rules on restraint
of trade which limit the extent of
non-competition agreements are
mandatory rules is unclear; if they are,
then they would apply to any attempt
at enforcement of a non-competition
agreement where, for example, the
employee habitually worked in the
UK, regardless of any express choice of
law. Further, the courts are entitled to
refuse to apply foreign law where it is
manifestly incompatible with English
law public policy, although there has
in practice been little reliance on this
principle.23
The process for enforcing a foreign
judgment in the United Kingdom
depends upon which, if any, statutory
regime applies. If the country
where the judgment was obtained is
24
or
the Lugano Convention 1988 on
of a judgment for injunctive relief is
Jurisdiction and the Enforcement of
not allowed. Similarly, judgments
Judgments in Civil and Commercial
of countries covered by the Foreign
Matters, there are reciprocal
Judgments (Reciprocal Enforcement)
arrangements in place whereby
Act 193327 will also only be enforced
the recognition and enforcement
if they are orders for the payment of
of a judgment of one country in
a sum of money. Judgments must be
another country is simple and will
registered within 12 months of the
not involve re-assessing the merits
date of the judgment under the 1920
of the case. Given the number of
Act and 6 years under the 1933 Act.
25
countries who are signatories to
these instruments, this is enormously
useful for employers. However,
a foreign judgment which is
contrary to English public policy,
or is incompatible with an English
judgment, or is irreconcilable with an
earlier judgment given in a signatory
state involving the same causes of
action and between the same parties
will not be recognized. There is no
time limit for making an application
to enforce a judgment. Further, in
uncontested claims the European
Enforcement Order is available
The position under common law is
similarly unsatisfactory. Where the
statutory regimes referred to above
do not apply, a foreign judgment in
personam can only be enforced via
the common law. However, there are
significant conditions and restrictions
on such enforceability—in particular,
that the foreign judgment must be
for a debt or a definite sum of money;
again, the enforcement of a judgment
for injunctive relief is not allowed.
Conclusion
for enforcing judgments. This is a
Although the legal systems in the
simplified method of enforcement
jurisdictions surveyed have significant
and does not require registering
differences regarding non-competition
the foreign judgment, and such
agreement enforceability, such as
judgments will be treated as if they
whether or not financial consideration
were an English judgment.
is required or preferred and the extent
Unfortunately, other statutory regimes
are not as helpful. For example,
judgments of countries with which
the United Kingdom has bilateral
Page 7
to which courts will rewrite otherwise
unenforceable covenants, there are
some common strands, like balancing
legitimate interests and having regard
morrison
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This newsletter addresses recent employment law developments. Because of its generality, the information
provided herein may not be applicable in all situations
and should not be acted upon without specific legal
advice based on particular situations.
to limiting factors like duration and
Editor: Lloyd W. Aubry, Jr., (415) 268-6558
if employees are working, or it is
San Francisco
------------------------------------------------------------
thought that after termination of their
restricted business areas. Accordingly,
Lloyd W. Aubry, Jr.
(415) 268-6558
laubry@mofo.com
James E. Boddy, Jr.
(415) 268-7081
jboddy@mofo.com
in more than one country, employers
(415) 268-7087
jparas@mofo.com
should consider the requirements for
James C. Paras
Linda E. Shostak
Eric A. Tate
(415) 268-7202
lshostak@mofo.com
(415) 268-6915
etate@mofo.com
Palo Alto
------------------------------------------------------------
David J. Murphy
Raymond L. Wheeler
Tom E. Wilson
(650) 813-5945
dmurphy@mofo.com
(650) 813-5656
rwheeler@mofo.com
(650) 813-5604
twilson@mofo.com
Los Angeles
-----------------------------------------------------------Sarvenaz Bahar
Angela E. Dotson
Timothy F. Ryan
Janie F. Schulman
(213) 892-5744
sbahar@mofo.com
(213) 892-5378
adotson@mofo.com
(213) 892-5388
tryan@mofo.com
(213) 892-5393
jschulman@mofo.com
New York
------------------------------------------------------------
Miriam H. Wugmeister
(212) 506-7213
mwugmeister@mofo.com
Washington, D.C./Northern Virginia
-----------------------------------------------------------Ann B. Stevens
(703) 760-7336
annstevens@mofo.com
Daniel P. Westman
(703) 760-7795
dwestman@mofo.com
Orange County
------------------------------------------------------------
Robert A. Naeve
Steven M. Zadravecz
(949) 251-7541
rnaeve@mofo.com
(949) 251-7532
szadravecz@mofo.com
San Diego
-----------------------------------------------------------Rick Bergstrom
Craig A. Schloss (858) 720-5143
rbergstrom@mofo.com
(858) 720-5134
cschloss@mofo.com
Denver
------------------------------------------------------------
Steven M. Kaufmann
(303) 592-2236
skaufmann@mofo.com
London
-----------------------------------------------------------Ann Bevitt
44-20-7896-5841
abevitt@mofo.com
employment they are likely to work,
enforceability of non-competition
agreements in all relevant jurisdictions,
to maximize the chances of being able
to enforce against employees should
they in fact compete after termination
of their employment. Finally, given the
difficulties outlined above of enforcing
injunctive relief across jurisdictions,
employers may instead want to focus
on obtaining and enforcing orders for
damages for breach of non-competition
agreements .
Article 2125 of the Italian Civil Code.
For example, it has been held that it was fair
to provide an additional amount of 18% of the
salary per month as compensation with regard
to a six months non-competition agreement,
geographically limited to the Region of
Lombardy.
16
17
See Frame v. Merrill Lynch, Pierce, Fenner &
Smith Inc., 20 Cal. App. 3d 668, 673 (1971);
Scott v. Snelling & Snelling, Inc., 732 F. Supp.
1034, 1039-40 (N.D. Cal. 1990).
18
See Application Group, Inc. v. Hunter Group,
Inc., 61 Cal. App. 4th 881, 885 (1998).
19
Medtronic, Inc. v. Superior Court of Los Angeles
County, 29 Cal. 4th 697, 708 (2002).
20
Baker v. General Motors Corp., 522 U.S. 222,
232 (1998).
Id. at 235.
Norrell Health Care, Inc. v. Redwood Empire
Nurses of Sonoma County, Inc., No. CV-910021-MISC, 1991 U.S. Dist. LEXIS 6615, at
*2-3 (N.D. Cal. May 6, 1991).
22
This article only addresses non-competition
agreements that impose post-employment
restrictions. It does not address the
enforceability of non-solicitation agreements
or agreements that impose restrictions on
competitive activities during employment.
1
2
Faw, Casson & Co. v. Cranston, 375 A.2d 463,
466-67 (Del. Ch. 1977).
TriState Courier & Carriage, Inc. v. Berryman,
No. C.A. 20574-NC, 2004 WL 835886, at *10
(Del. Ch. Apr. 15, 2004).
3
4
Knowles-Zeswitz Music, Inc. v. Cara, 260 A.2d
171, 175 (Del. Ch. 1969).
Diodes, Inc. v. Franzen, 260 Cal. App. 2d
244, 255 (1968).
5
D’Sa, v. Playhut, Inc., 85 Cal. App. 4th at 935.
6
Northern Virginia Psychiatric Group, P.C. v.
Halpern, 19 Va. Cir. 279, 282 (1990) (nonsolicitation agreement case); Richardson v.
Paxton Co., 203 Va. 790, 795 (1962).
7
Richardson, 203 Va. at 795.
9
Paramount Termite Control Co. v. Rector, 238
Va. 171, 174 (1989).
If you have a change of address, please write to Chris
Lenwell, Morrison & Foerster llp, 555 Market Street,
San Francisco, California 94105-2800, or e-mail him at
clenwell@mofo.com.
15
21
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8
14
Thomas v. Farr plc & Hanover Park
Commercial Ltd [2007] EWCA Civ 118. In
this case the Court rejected the previously wellaccepted argument that, where an employer
imposes non-competition agreements and nonsolicitation clauses, the former should be shorter
in duration than the latter (e.g., 6 months and
12 months respectively). A duration of 12
months for the non-competition agreement
was held to be “a conservative estimate of the
time for which [the employer’s] confidential
information would retain is currency” and
therefore reasonable.
10
Id. at 175.
11
Stenhouse Ltd v. Phillips [1974] AC 391.
12
Herbert Morris Ltd v. Saxelby [1916] AC 688.
See, e.g., TFS Derivatives Ltd v. Morgan
[2004] EWCH 3181.
23
See, e.g., Apple Corporation Limited v. Apple
Computer Incorporated [1992] F.S.R. 431, where
the proposition that public policy overrode the
proper law of the contract was rejected.
24
Signatories are Austria, Belgium, Bulgaria,
Cyprus, Czech Republic, Denmark, Estonia,
Finland, France, Germany, Greece, Hungary,
Ireland, Italy, Latvia, Lithuania, Luxembourg,
Malta, Netherlands, Poland, Portugal, Romania,
Slovakia, Slovenia, Spain, Sweden, and the UK.
25
Signatories are Austria, Belgium, Denmark,
Finland, France, Germany, Greece, Iceland,
Ireland, Italy, Luxembourg, Netherlands,
Norway, Poland, Portugal, Spain, Sweden,
Switzerland, and the UK.
26
Mainly former or current Commonwealth
countries.
27
Includes Crown states such as Isle of Man
and Jersey.
–––––––––
Ann Bevitt is a partner in our London office
and can be reached at +44 20 7920 4041 or
abevitt@mofo.com.
13
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© 2007 Morrison & Foerster LLP. All Rights Reserved.
Page 8
La Tanya N. James is an associate in our
Northern Virginia office and can be reached at
(703) 760-7335 or latanyajames@mofo.com.