Hi, I worked for an IT company in New York for 2 years and got transferred to a sister company in The Netherlands.
My first contract in New York had a non-compete of 3 years. My new contract in The Netherlands has a non-compete of 3 years also, but governing law is in The Netherlands.
If I come back to NY on my own, can I work for a competitor, given that the 3 year non-compete (from my NY contract) is over. (I've been in The Netherlands for 3 years now).?
You present a highly unusual questions. Frankly, I can't be sure of the answer without doing a lot of research, but I will hazard a guess based on my knowledge and experience.
First, I have to make a major assumption. I don't know the law governing non-compete agreements in the Netherlands. I would suspect it is more unfriendly to employment non-competes than New York law, but I don't know that for sure. I will assume, however, that Dutch law will enforce non-compete provisions in employment agreements, no matter how restrictive.
Normally, a New York court will enforce a foreign agreement, and it will enforce it under the law of the applicable jurisdiction. New York law allows parties to a contract to select the law that would apply to the enforcement or interpretation of a contract. Thus, in your case, a New York court would normally enforce your Dutch contract under Dutch law.
However, New York, like most jurisdictions, will refuse to enforce a contract which would be enforceable in another jurisdiction if the enforcement of the contract would violate the public policy of New York.
Here, you luck out a bit. There is case law in New York saying that the enforcement of unnecessarily restrictive non-compete provision in an employment agreement violates New York public policy.
So, there is a chance that a New York court would refuse to enforce the Dutch non-compete. But a more definite determination on this issue would definitely require much more legal research.
It is a very unusual question.
posted by David M. Lira | Oct 26, 2005 7:11 PM [EST]