Interesting in authoring for
Latin American Briefings Visit
www.accdocket.com/digitaldocket/
edguide.cfm, or contact Associate Editor
Rena Malai at r.malai@acc.com.
a special supplement to ACC Docket sponsored by Littler Mendelson P.C.
1 Non-Compete Covenants In Latin American
Jurisdictions — Enforceability Challenges
and Drafting Recommendations
By Johan Lubbe, Renata Neeser, and
Monica Schiaffino
10 Ten Rules on Equal Pay In Brazil
By Renata Neeser
15 Changes to Brazilian Ethics Code; Changes
to Pro Bono Practice
By Rena Malai and Regina Freitas, ACC
Non-Compete Covenants In
Latin American Jurisdictions —
Enforceability Challenges and
Drafting Recommendations
By Johan Lubbe (New York), Renata Neeser (New York), and Monica Schiaffino (Mexico City),
Littler Mendelson P.C.
Workplace law in Latin American
(LATAM) jurisdictions is notoriously
complex. The law on the enforcement
of non-compete covenants after the
employment relationship terminates is
equally complex and in some instances
underdeveloped. No uniformity exists
among the LATAM jurisdictions. This
article explores the enforceability of
non-compete covenants and suggests
some drafting guidelines to improve
the chances of implementing valid and
enforceable non-compete covenants.
Implied duty of good faith
In the LATAM jurisdictions, employ-
ees may not compete with an employer
during the tenure of their employment
relationship. In most jurisdictions,
employees are under an implied duty
of trust and confidentiality. Accord-
ingly, in some jurisdictions no express
employment contractual provision is
required to protect an employer against
unfair competition while the employ-
ment relationship exists. For example,
in Brazil, Article 482 of the Labor Code
provides the list of employee mis-
conduct that can be considered good
cause for terminating the employment
relationship. The statutory list of law-
ful grounds of termination includes
competing against the employer and
disclosing trade secrets or confidential
information. These employee obliga-
tions are implied by law, and it is not
required to restate these obligations in
the employment agreements.
Mexican law, on the other hand,
is not as specific. While an employer
can terminate an employee for cause
if the employee discloses confidential
information, there is no specific prohibition against employees having a
