Non-competition and non-solicitation clauses can be included in an employment contract or a commercial contract.

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In all cases, they concern an element of the utmost importance: your relationship with customers and the market in which you operate.

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In the presence of this type of clause in a contract, it's best to consult before taking any action that, if contravened, could lead to litigation.

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In commercial contracts, and subject to specific circumstances, the following principles apply in particular:

• Restrictive clauses are valid unless it is shown that they are contrary to public policy—for example, by being unreasonable with respect to one party—and they must be interpreted in accordance with the parties’ intent and the obligations they entail;
   

• In such a context, the interpretation of restrictive clauses requires much greater flexibility and discretion in order to protect freedom of commerce and promote the stability of commercial agreements;
   

• In commercial matters, a non-compete agreement will be deemed reasonable and lawful provided that its duration, geographical scope, and the activities it covers are limited to what is necessary to protect the legitimate interests for which it was entered into;
   

• In commercial matters, the burden of proving that a non-compete clause is unlawful rests with the party asserting such illegality;
   

• The territory covered by such a clause is, in principle, limited to the territory in which the business or activities of the sold company are carried out […] as of the date of the transaction. Case law has held that a non-compete clause that extends beyond the territory in which the company operates is contrary to public policy; 

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To find out the extent of your rights and the impact of this type of clause on what you can or cannot do, please don't hesitate to contact us.