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A few years ago I signed a NDA with a non-compete clause when joining my current company in the United States. The NDA is stated to be enforceable where permitted by law.

Since then I’ve moved to Japan and am currently working for the same company. But my current contract is with its Japanese entity. I didn’t sign a second NDA when on-boarding here.

My question is would my previous NDA apply if I were to look for another job here in Japan or in a third country, say, China/Hong Kong?

  • You say you are "currently working for the same company" and "my current contract is with its Japanese entity". Those cannot both be correct. You are working for the company with whom you have a contract. If you are no longer working for the company with whom you signed the non-compete contract, then any time limit in it is elapsing. – Martin Bonner Nov 30 '18 at 10:01
  • Thank you! You are right. I work for the same company it my contract here in Japan is with the Japanese entity. So you mean the old NDA that I signed with the U.S. entity (the headquarter) would not apply any more? – Storm Dec 13 '18 at 4:46
  • A company is a legal person. The US company is not the same legal company as the Japanese company (though the latter is probably a wholly owned subsidiary of the former). You no longer have a contract of employment with the US company. Non-compete clauses survive the end of the contract of employment they are attached to (that is the whole point), but there is usually some sort of time limit. That time limit is now elapsing (or has elapsed) unless the non-compete clause says it doesn't start to elapse while you are working for the US company or any subsidiary. – Martin Bonner Dec 13 '18 at 8:22
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It depends

Restraint of trade clauses are limited to what is reasonable to protect the interests of the employer. This reasonableness applies to job role and geographic location.

Depending on your job, it may or may not be reasonable to limit you worldwide. For example, if you are the CEO of a multinational like Coca-Cola it is probably reasonable to prevent you working in the soft drink industry worldwide for a reasonable time. It would not be reasonable if you were a factory line worker to restrict you at all, probably.

  • "Restraint of trade clauses are limited to what is reasonable to protect the interests of the employer. " That is going to depend on the jurisdiction where the OP takes a job surely? In Switzerland, I know that non-compete clauses must have an explicit geographical and time limit to be enforceable. – Martin Bonner Nov 30 '18 at 10:03

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