Restraint of Trade : Public Forum Question

Wed Oct 31 04:19:37 EET 2018

A restraint of trade provision is normally inserted into an employment contract that restricts an employee from performing similar activities in competition with the former employer seeking to protect the employers proprietary interests, including customer information, trade secrets and sensitive information that is deemed confidential.
South African law has no legislative protection for this provision unless there is a contractual agreement .The critical factor is how the restraint clause is drafted.  A contract of employment is based on mutual consensus and it is deemed that the restraint clause would have been mutually agreed upon.
In English Law the restraint of trade clause is prima facie invalid and unenforceable unless the enforcer can illustrate that the clause is reasonable and not contrary to public policy.
In South African Law it is prima facie valid and enforceable unless it is proven that it was not to protect the legitimate business interests  and is contrary to public policy.
Common law issues of pacta sunt servanda  which promotes freedom of contract and that parties will freely include terms that they reach mutual consensus on must also be borne in mind.
The principle of  Ex turpi causa non oritur actio.  (Latin "from a dishonorable cause an action does not arise") is a legal doctrine which states that a plaintiff will be unable to pursue legal remedy if it arises in connection with his own illegal act. This prevents a guilty party from benefiting and if the contract was terminated unlawfully then restraint protection falls away.

Warm regards
Yours Sincerely
Ms. Varsha SewlalAttorney LLD candidateCell : +27 83 688 9964PretoriaSouth Africahttps://www.linkedin/in/varshasewlal 

    On Wednesday, 31 October 2018, 08:24:15 GMT+2, Caleb Olumuyiwa Ogundele <muyiwacaleb at GMAIL.COM> wrote:  

 With or without cooling off period, ICANN cannot and should not decide the next career prospects of it's staff. Will ICANN pay that staff for the cooling down period full benefits? What I feel ICANN. org can do is rather strengthen its NDA clauses on business secrets.I could also be wrong, and a different opinion emerges. It's the beauty of a multi-stakeholder process. 
On Tue, Oct 30, 2018, 22:39 varsha sewlal <000005c3de6489d8-dmarc-request at listserv.syr.edu> wrote:

Interesting read relating to this issue:

https://domainnamewire.com/2018/10/29/u-s-government-follows-up-on-cooling-off-period-idea-for-icann-employees/

https://domainnamewire.com/2018/10/29/u-s-government-follows-up-on-cooling-off-period-idea-for-icann-employees/

Yours Sincerely 
Kind Regards
Ms. Varsha Sewlal+27 83 6889964Pretoria South Africa
Sent from my iPhone 
On 30 Oct 2018, at 18:32, farzaneh badii <farzaneh.badii at GMAIL.COM> wrote:

Sorry sent in a hurry.. There has to be some cooling off period for sure and I think we should follow up on this 
On Tue, Oct 30, 2018 at 12:32 PM farzaneh badii <farzaneh.badii at gmail.com> wrote:

I think what Marilyn is raising is very valid and we need to have safeguards to prevent it from happening. There has to be some COn Tue, Oct 30, 2018 at 12:14 PM Ayden Férdeline <icann at ferdeline.com> wrote:

Dear all,

A colleague from the Business Constituency asked an excellent question at the Public Forum last Thursday. I have copied and pasted the dialogue below, including the rather unsatisfactory response:

MARILYN CADE: My name is Marilyn Cade. Recently, a senior executive with extremely deep knowledge and even, perhaps, operational knowledge, of ICANN's contracted parties and competitive information and details left ICANN to become the CEO of a company that only a day before he left, he was overseeing, as ICANN is a surrogate for a regulatory system through its contractual relationships with the contracted parties. I have no doubt he was  excellent at his job, which means he holds in his mind much information that is about  competition issues and operational issues about ICANN org. 

Everyone has a right to work, and I ask the Board not to respond that California is a right-to-work state in the United States. I'm quite aware of this.

Having an agreement with high-level executives about how competition-related issues and what is called corporate secrets or proprietary or confidential information about the organization is customary in most countries when it comes to at least executive-level employees. It is routinely put into the employment contracts with senior executives. And lobbying contacts and reviewing and contacting staff they have employed, whether it is up the chain or down the chain, and the Board is typically barred for at least a year. ICANN org and  the ICANN Board should understand that many in the community are concerned about the  concept called a revolving door. There should be some kind of a cooling-off period and a requirement that there is no contact on behalf of the new employer with those staff that have  been supervised or with the Board that may be misunderstood. Perceptions that don't reflect reality can still harm ICANN's integrity and lead to distrust in our organization, which must fulfill the highest standards of ethical behavior.

CHERINE CHALABY: I'll take this.

SARAH DEUTSCH: Cherine.

CHERINE CHALABY: Thank you, Marilyn, and thank you, Amadeu. I think we owe you an answer to this question and we will do that after the break and after this session. So just give us time to respond to it properly. So thank you very  much. Good question. We owe  the  community an answer on that.

MARILYN CADE: And in follow-up what I will say is in only a couple of weeks, a number of governments who are not necessarily well informed about ICANN will be gathering in a different setting, and there, I know, will be at least hallway conversations about this. So I think it is important for us to have an answer. Thank you.

CHERINE CHALABY: Thank you.

SARAH DEUTSCH: Thank you. Yeah.

The video is here (from 45:50): 
https://livestream.com/icannmeeting/events/8416143/videos/182475607

The full transcript is here: 
https://static.ptbl.co/static/attachments/192307/1540577759.pdf?1540577759

Best wishes,
Ayden Férdeline

-- 
Farzaneh 
-- 
Farzaneh 

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