澳大利亚：贸易限制必须合理

商业合同经常包含保护一方利益的贸易限制。
Commercial contracts frequently contain restraints of trade designed to protect the interests of one of the parties.
这些限制的有效性取决于各种各样的因素。
The validity of those restraints depend upon a wide range of factors.
考虑因素
Factors for Consideration
该协定中的限制条款是否会被视为不合理贸易限制而无效?
Was the restraint provision in the Agreement void as an unreasonable restraint of trade?
①限制规定违反公共政策，作为对贸易的不合理限制而无效；
The restraint provision was contrary to public policy and void as an unreasonable restraint of trade;
②是否存在“限制”的问题应考虑到所谓限制的实际内容；
The question of whether there is a "restraint" is to be answered having regard to the practical working of the alleged restraint;
③这种限制显然是一种纵向和横向的贸易限制；
The restraint plainly operates as a vertical and a horizontal restraint of trade;
④在普通法上，对贸易的限制是违反公共政策的，且无效。除非为保护当事人利益而有合理的需要，并对公众利益而言是合理的；
At common law, a restraint of trade is contrary to public policy and void unless it is reasonably necessary to protect the interests of the parties and is reasonable in the interests of the public;
⑤根据新南威尔士州《贸易限制法案》第4(1)条，限制在不违反公共政策的范围内即为有效，即使限制条款不是可分割的；
Pursuant to s 4(1) of the Restraints of Trade Act, New South Wales, a restraint is valid to the extent to which it is not against public policy, even if not in severable terms;
⑦仅仅限制竞争本身是无法强制执行的；
A restraint directed to preserving or maintaining a personal or corporate relationship with a supplier may be reasonable in the interests of the parties, such as where the beneficiary of the restraint has a legitimate interest to protect, analogous to goodwill, as something which adds value to the business;
⑧这种限制不保护合法利益，在双方之间是不合理的。
The restraint did not protect a legitimate interest and was therefore unreasonable as between the parties.
⑨在处理公共政策考虑时，应考虑《2010年竞争和消费者法案》(Cth)的规定；
In dealing with public policy considerations, it may be appropriate to have regard to the provisions of the Competition and Consumer Act 2010 (Cth);
⑩无论协定在双方之间是否合理，若在公共利益方面是不合理的，也是无效的。
Irrespective of whether the Agreement was unreasonable as between the parties, it was unreasonable in the public interest and also void for that reason.
从实践和商业的角度来看，约束条款可以是各方利益的微妙平衡。然而，任何限制商业活动的意图都应谨慎和仔细地对待，并审查所有相关因素，以确保限制条款是合理和可执行的。
From a practical and commercial perspective, restraint clauses can be a delicate balancing of each party's respective interests. However any attempts to restrict a commercial activity should be treated cautiously and carefully and all of the relevant factors examined to ensure that the restraint terms are reasonable and enforceable.