In the Supreme Court of Georgia

Decided: September 6, 2023

S22G0854. MOTORSPORTS OF CONYERS, LLC et al. v. 

BURBACH.

 PINSON, Justice.

When contracting parties choose the law of a jurisdiction other 

than Georgia to govern their contractual relations, Georgia courts 

generally honor that choice unless applying the foreign law would 

violate the public policy of our State. See OCGA § 1-3-9. Under this 

public-policy exception, our courts have for many years declined to 

apply foreign law to determine whether to enforce restrictive 

covenants—in particular, agreements not to engage in the same type 

of business in the same market for a period of time, usually 

connected with the sale of a business or employment contracts. The 

petitioners here—two motorcycle dealerships who seek to enforce 

restrictive covenants against a former employee under Florida law—
2

ask us to reconsider this application of the public-policy exception, 

citing recent changes in Georgia law that require a more flexible and 

permissive approach to enforcing restrictive covenants.

Having taken a fresh look, we conclude that Georgia law 

remains the touchstone for determining whether a given restrictive 

covenant is enforceable in our courts, even where the contract says 

another state’s law applies. Our decisional law has long 

distinguished between restrictive covenants that are reasonable (in 

scope, duration, and geographic reach) and those that are 

unreasonable. The former are enforceable, while the latter have 

been classified as contracts “in general restraint of trade.” For just 

as long, contracts in general restraint of trade have been “deemed 

contrary to public policy” in our State. OCGA § 13-8-2 (a) (2). As we 

explain below, a careful review of our decisional law and statutory 

history in this space shows that our legislature has codified this 

view, including with the recent enactment of the Georgia Restrictive 

Covenants Act. OCGA § 13-8-50 et seq. Although the GRCA and a 

corresponding constitutional amendment set up a much more 
3

permissive and flexible approach to enforcing restrictive covenants, 

these changes did not disturb the well-settled understanding that 

restrictive covenants that are unreasonable under Georgia law are 

not just illegal, but against our public policy. This means that to 

determine whether applying foreign law to a restrictive covenant 

would violate Georgia’s public policy—i.e., whether the public-policy 

exception to honoring a choice-of-law clause applies—a Georgia 

court must first determine whether the restrictive covenant 

complies with the GRCA. If the restrictive covenant as written is 

reasonable under the GRCA, the court can honor the choice-of-law 

provision and apply the foreign law to determine whether to enforce 

it. If the restrictive covenant is unreasonable under the GRCA, a 

Georgia court may not apply foreign law to enforce it. In that case, 

Georgia law would govern the contract, and so the court would apply 

our law, including the GRCA’s blue-penciling provision, which could 

allow the restrictive covenant to be enforced in part.

In this case, the trial court accepted the parties’ choice of 

Florida law to govern the employment contracts at issue without 
4

first determining whether the restrictive covenants in the contracts

complied with the GRCA. The Court of Appeals reversed, and in 

doing so, correctly identified application of the GRCA as the first 

step in the analysis of whether the public-policy exception overrides 

the parties’ choice of foreign law. But because we have now set out 

a clear framework for that analysis in this opinion, we leave it for 

the trial court to apply that framework in the first instance. We

therefore vacate the decision below and remand with direction to 

vacate the trial court’s decision and remand for further proceedings 

consistent with this opinion.

1. (a) In 2016, Edmund Burbach was hired to work for a group 

of six Harley-Davidson dealerships under common ownership, 

including Motorsports of Conyers, LLC d/b/a Falcons Fury HarleyDavidson, and Motorsports of Durham, LLC d/b/a Raging Bull 

Harley-Davidson (collectively as to all six, “the dealerships”). Later 

that year, he was promoted to Chief Operating Officer, and he 

executed two employment agreements, one with Falcons Fury and 

one with Raging Bull. These agreements included identical 
5

restrictive covenants. Among other things, those covenants 

prohibited Burbach, during his employment and for three years 

after, from accepting employment from any competitor within a 120-

mile radius of any of the six dealerships. Both agreements also 

included a choice-of-law provision stating that the agreements were 

to be governed by Florida law. 

Burbach’s employment with the dealerships ended in 

December 2019. He then began working for Preston Cycles West, 

LLC d/b/a Thunder Tower West Harley-Davidson, a competitor of 

the dealerships located less than 20 miles from Falcons Fury. 

Falcons Fury and Raging Bull (together, “Motorsports”) asked him 

to stop that work, which they claimed violated the restrictive 

covenants in his employment agreements. He persisted, so they sued 

him in the Superior Court of Henry County to enforce the restrictive 

covenants. Motorsports then moved for an interlocutory injunction. 

(b) After a hearing, the trial court issued an interlocutory 

injunction. Relevant here, the court applied Florida law to 

determine whether the restrictive covenants were enforceable. In 
6

doing so, the court rejected Burbach’s argument that, 

notwithstanding the agreements’ choice-of-law provisions, Georgia 

law should apply because Florida law governing restrictive 

covenants violates Georgia public policy. In support, the court relied

on Auld v. Forbes, 309 Ga. 893 (848 SE2d 876) (2020). In that 

wrongful-death case, this Court examined the “public policy 

exception” to the doctrine of lex loci delicti—which requires courts 

to apply the law of the jurisdiction where the tort was committed—

and held that a court may decline to apply another state’s law “only 

if the out-of-state law is so ‘radically dissimilar to anything existing 

in our own system of jurisprudence’ that it would ‘seriously 

contravene’ the policy embodied in Georgia law.” 309 Ga. at 896 (2) 

(b) (citation omitted). Applying Auld, the trial court compared 

Florida’s restrictive-covenants statute with the Georgia Restrictive 

Covenants Act and determined that Florida’s law was not “so 

radically dissimilar to” Georgia’s that public policy required it to 

apply Georgia law instead. Id. at 898 (2) (b). So the court applied

Florida law, and it determined that the restrictive covenants were
7

enforceable because they were “reasonable and necessary to protect 

[Appellants’] legitimate business interests.” The court held further 

that Motorsports had met their burden to justify interlocutory 

injunctive relief. The court therefore granted an interlocutory 

injunction that barred Burbach from working in any capacity for any 

competitor located within 120 miles of either Falcons Fury or Raging 

Bull.

(c) The Court of Appeals reversed. Burbach v. Motorsports of 

Conyers, LLC, 363 Ga. App. 188 (871 SE2d 63) (2022). The court 

reasoned that it would “apply Georgia law to determine the 

enforceability of the forum-selection clause here” because “forum 

selection clauses involve procedural and not substantive rights.” Id. 

at 190 (1) (citation and punctuation omitted).1 And under Georgia 

1 Throughout its opinion, the Court of Appeals used the terms “forumselection clause” and “choice-of-law clause” interchangeably, but these are 

different kinds of contract provisions. Forum-selection clauses operate to give 

“advance consent to personal jurisdiction” in a particular forum. JOHN K.

LARKINS, GA. CONTRACTS: LAW AND LITIGATION, § 1:10 (2d ed. Sept. 2022). 

Choice-of-law clauses identify the substantive law that the parties have chosen 

to govern the contract. Id. at § 1:9. No one disputes that the contractual 

provisions at issue here, which say that the agreements are “governed by, and 

construed in accordance with, the laws of the State of Florida applicable to 
8

law, the court explained, a showing that “a restrictive covenant 

violates Georgia public policy and that a court in the selected forum 

likely would find the restrictive covenant enforceable” is a 

“compelling reason” to “avoid the contractual forum selection 

clause.” Id. at 190-191 (1) (punctuation omitted). The court then 

cited the GRCA’s directive that “a court shall not enforce a 

restrictive covenant unless it is in compliance with [the Act],” under 

which restrictive covenants must be “reasonable in time, geographic 

area, and scope of prohibited activities.” Id. at 191 (1) (quoting 

OCGA §§ 13-8-53 (a), 13-8-54 (b)). In a footnote, the court

distinguished Auld because that case involved “a tort that occurred 

in another country,” while this case was about a “contractual dispute 

[involving] a mutually negotiated, forum-selection clause.” Id. at 191

(1) n.5. 

The Court of Appeals then turned to the restrictive covenants 

here and concluded they would be “unreasonable” under Georgia law 

contracts executed in and to be performed in that State,” are choice-of-law 

clauses.
9

because they were too broad in their duration, scope of activity, and 

geographic reach. Burbach, 363 Ga. App. at 191-192 (1). On the 

other hand, the court believed the covenants would be enforceable 

under Florida law, see id. at 192-193 (1). Based on that review, the 

court concluded that “the trial court erred in upholding the [choiceof-law] clauses in Burbach’s restrictive covenants.” Id. at 193 (1).

We granted review to clarify the framework for deciding

whether to apply contracting parties’ choice of foreign law to govern

the enforceability of a restrictive covenant in an employment 

contract.

2. (a) As a general rule, when parties agree to have foreign law 

govern their contractual relations, Georgia courts must honor that 

choice and apply the foreign law as a matter of comity. See OCGA § 

1-3-9; CS-Lakeview at Gwinnett, Inc. v. Simon Prop. Grp., Inc., 283 

Ga. 426, 428 (659 SE2d 359) (2008); Carr v. Kupfer, 250 Ga. 106, 107 

(1) (296 SE2d 560) (1982). But the statute that provides this general 

rule also sets out exceptions to it: notwithstanding any agreement 

of the contracting parties, courts may not apply foreign law to 
10

interpret or enforce a contract if that course is “restrained by the 

General Assembly” or “contrary to the policy or prejudicial to the 

interests of this state.” OCGA § 1-3-9.2 In other words, contractual 

choice-of-law provisions “will be enforced unless application of the 

chosen law would be contrary to the public policy or prejudicial to 

the interests of this state.” CS-Lakeview, 283 Ga. at 428. See also 

Convergys Corp. v. Keener, 276 Ga. 808, 809 (582 SE2d 84) (2003)

(declining invitation to “enforce contractual rights which contravene 

the policy of Georgia”); Nasco, Inc. v. Gimbert, 239 Ga. 675, 676 (2) 

(238 SE2d 368) (1977) (“The law of the jurisdiction chosen by parties 

to a contract to govern their contractual rights will not be applied by 

Georgia courts where application of the chosen law would 

contravene the policy of, or would be prejudicial to the interests of, 

2 In full, OCGA § 1-3-9 provides

The laws of other states and foreign nations shall have no force 

and effect of themselves within this state further than is provided 

by the Constitution of the United States and is recognized by the 

comity of states. The courts shall enforce this comity, unless 

restrained by the General Assembly, so long as its enforcement is 

not contrary to the policy or prejudicial to the interests of this 

state.
11

this state.”); Carr, 250 Ga. at 107 (1) (choice-of-law clauses will 

ordinarily be enforced “[a]bsent a contrary public policy”); Ulman, 

Magill & Jordan Woolen Co. v. Magill 155 Ga. 555, 557 (117 SE 657) 

(1923) (“Comity of the States . . . will be enforced, unless restrained 

by the General Assembly, so long as its enforcement is not contrary 

to the policy or prejudicial to the interests of this state.” (cleaned 

up)).

Litigants may try to show that applying foreign law would be 

contrary to Georgia’s public policy—and that a court should 

therefore disregard a contractual choice-of-law clause—by showing 

that the foreign law governing the issue is significantly different 

from any corresponding Georgia law. In such cases, we have 

explained that “mere dissimilarit[ies]” between the foreign law and 

ours are not enough to disregard the parties’ choice of law, because 

differences alone “do[ ] not mean that the foreign state’s law 

necessarily is against the public policy of the forum state.” CSLakeview, 283 Ga. at 428 (citations and punctuation omitted). 

Instead, as we clarified in Auld, if a party seeks to disregard the 
12

choice of foreign law based on its dissimilarities to our own, it must 

show that the foreign law is “so ‘radically dissimilar to anything 

existing in our own system of jurisprudence’ that it would ‘seriously 

contravene’ the policy embodied in Georgia law.” 309 Ga. at 896 (2) 

(b) (quoting Southern R. Co. v. Decker, 5 Ga. App. 21, 25 (1), 29 (2) 

(62 SE 678) (1908)).

(b) But no such comparison-based inquiry is necessary in the 

context of restrictive covenants. In this context, Georgia public 

policy is instead set by statute. OCGA § 13-8-2 (a) expressly deems 

certain kinds of contracts “contrary to public policy” and declares 

that such contracts “cannot be enforced.” Among the contracts 

deemed contrary to public policy are “[c]ontracts in general restraint 

of trade, as distinguished from contracts which restrict certain 

competitive activities, as provided in Article 4 of this chapter.” Id. at

(a) (2). And “Article 4 of this chapter” is the GRCA, which sets out a 

comprehensive scheme that governs whether restrictive covenants 

in certain kinds of contracts are enforceable. See generally OCGA § 
13

13-8-50 et seq.3 So, by statute, “contracts in general restraint of 

trade” are against public policy and unenforceable, while “contracts 

which restrict certain competitive activities, as provided in [the 

GRCA],” are not. OCGA § 13-8-2 (a) (2). 

This category of contracts “in general restraint of trade”

includes unreasonable restrictive covenants. The principle that 

“contracts in general restraint of trade” are contrary to public policy

has its roots in English common law, see Holmes v. Martin, 10 Ga. 

503, 505 (1) (1851), and it has been a part of our Code, in materially 

the same form, since at least 1868. See OCGA § 13-8-2 (a) (2) 

(prohibiting “contracts in general restraint of trade”); Code Ann.

1933, § 20-504 (same); Code Ann. 1910, § 4253 (prohibiting 

“contracts in general in restraint of trade”); Code Ann. 1895, § 3668 

(same); Code Ann. 1882, § 2750 (same); Irvin’s Code 2d. ed. 1873, § 

3 In particular, see OCGA §§ 13-8-52 (a) (listing specific types of 

contracts, including employment contracts, to which GRCA applies); 13-8-53

(a) (providing that restrictions that are “reasonable in time, geographic area, 

and scope of prohibited activities” “shall be permitted”); and 13-8-53 (c), 13-8-

56, and 13-8-57 (establishing parameters for “reasonableness” of restrictive 

covenants).
14

2750 (same); Irvin’s Rev. Code 1868, § 2708 (same).4 Over that span,

decisions applying this principle to restrictive covenants have 

consistently explained that if such covenants are unreasonable—in 

scope, duration, or geographic reach—they are “void” or 

“unenforceable” contracts “in general restraint of trade.” See, e.g.,

Moore v. Dwoskin, Inc., 226 Ga. 835, 836-837 (1) (177 SE2d 708) 

(1970) (restrictive covenant prohibiting employee from engaging in 

employer’s business in “the primary business areas of 31 states” for 

two years following employment was “unreasonable . . . and opposed 

to the interests of the public,” and thus void); Aladdin, Inc. v. 

Krasnoff, 214 Ga. 519, 520 (2) (105 SE2d 730) (1958) (restrictive 

4 This principle is part of our State Constitution as well. Article III, 

Section VI, Paragraph V (c) (1) of the Georgia Constitution of 1983 prohibits

the General Assembly from “authoriz[ing] any contract or agreement which 

may have the effect of or which is intended to have the effect of defeating or 

lessening competition.” In construing the materially similar predecessors of 

this provision in earlier constitutions, we have held that it “mean[s] precisely 

the same thing which the Code section [prohibiting contracts in general 

restraint of trade] has been construed to mean.” Griffin v. Vandegriff, 205 Ga. 

288, 293 (1) (53 SE2d 345) (1949) (construing Article IV, Section IV, Paragraph 

I of the Georgia Constitution of 1945). Accord Howard Schultz & Assocs. v. 

Broniec, 239 Ga. 181, 183 (1) (236 SE2d 265) (1977) (“By both constitutional 

and legislative provision, Georgia prohibits contracts or agreements in general 

restraint of trade.”).
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covenant that prohibited disclosure of “all of the employer’s past, 

present, and potential customers,” which was “unlimited as to either 

time or territory,” was “an attempt at general restraint of trade” and 

thus “unenforceable”); Orkin Exterminating Co. of South Ga. v. 

Dewberry, 204 Ga. 794, 802, 807 (1) (51 SE2d 669) (1949) (“A 

contract in restraint of trade is thus total and general, when by it a 

party binds himself not to carry on his trade or business at all.”

(citation and punctuation omitted)), overruled in part on other 

grounds by Barry v. Stanco Commc’ns Prods., Inc., 243 Ga. 68, 71 

(3) (252 SE2d 491) (1979); Bonner v. Bailey, 152 Ga. 629, 632 (110 

SE 875) (1922) (in assessing whether to enforce a restrictive 

covenant, explaining that “it is settled in this state that a contract 

in general restraint of trade without territorial limitation is contrary 

to public policy and unenforceable”).

On the other hand, restrictive covenants that are “reasonably 

limited” in scope, duration, and geographic reach—also referred to 

as contracts in “partial restraint of trade”—have consistently been 

held to be enforceable. As we explained more than 170 years ago, 
16

the distinction was early taken, and is established by an 

unbroken current of authority, English and American, 

between [restrictive covenants] as are in general restraint 

of trade, and such as are in restraint of it only as to 

particular places and persons, or for a limited time. The 

latter, if founded upon a good and valuable consideration, 

are valid, while the former are universally prohibited.

Holmes, 10 Ga. at 505 (1). See also Griffin v. Vandegriff, 205 Ga. 

288, 294 (1) (53 SE2d 345) (1949) (“Numerous decisions of this court, 

applying the [predecessor to OCGA § 13-8-2 (a) (2)] have held that 

such contracts when reasonable as to time and area of restrictions 

are not void under that section.”). The takeaway is that in Georgia, 

the line between unreasonable restrictive covenants and reasonable 

ones has long been drawn by public policy: unreasonable restrictive 

covenants are contracts in general restraint of trade that are against 

public policy, while reasonable restrictive covenants are valid and 

enforceable. See W.R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (1) 

(422 SE2d 529) (1992); Moore, 226 Ga. at 836-837 (1); Aladdin, 214 

Ga. at 520 (1); Orkin, 204 Ga. at 802 (1); Black v. Horowitz, 203 Ga. 

294, 294 (1) (46 SE2d 346) (1948). See also Hood v. Legg, 160 Ga. 

620, 627-628 (128 SE 891) (1925) (explaining that in assessing 
17

whether restrictive covenants are reasonable and thus enforceable, 

“what is meant by the word ‘reasonable’” is “whether the contract 

unduly burdens the public interest,” and so “public policy is the 

test”); Rakestraw v. Lanier, 104 Ga. 188, 197 (30 SE 735) (1898) (in 

considering reasonableness of restrictive covenant, noting that 

“[w]hile public policy forbids any agreement which unreasonably 

restrains a person from exercising his trade or business, it is equally 

true that public policy also requires that the freedom of persons to 

enter into contracts shall not be lightly interfered with”); Holmes, 10 

Ga. at 505 (2) (“The reason assigned for this difference is, that all 

general restraints tend to promote monopolies and to discourage 

industry and enterprise and just competition; whereas the same 

reason does not apply to special restraints. On the contrary, it may 

even be beneficial to the public, that a particular place should not be 

overstocked with persons engaged in the same business.”). 

(c) This settled understanding that unreasonable restrictive 

covenants are contracts in general restraint of trade—and thus 

against public policy—has been confirmed by recent legislation in 
18

the restrictive-covenant space. 

(i) For a long time, the standards governing the validity of 

restrictive covenants developed through the decisional law 

discussed above, which had for years grappled with how to 

distinguish reasonable restrictive covenants from unenforceable 

contracts in general restraint of trade. See W.R. Grace & Co., 262 

Ga. at 465 (1) (noting the “three-element test” that courts had 

developed “as a ‘helpful tool’ in examining the reasonableness” of 

restrictive covenants (citation omitted)). In 1990, the General 

Assembly for the first time codified standards for assessing whether

restrictive covenants are reasonable and thus enforceable. In that 

Code section, the legislature approved the enforcement of “contracts 

in partial restraint of trade”—defined as “[c]ontracts that restrain 

in a reasonable manner any party thereto from exercising any trade, 

business, or employment.” Former OCGA § 13-8-2.1 (a), enacted at

Ga. L. 1990, pp. 1676-1677, § 2. In the same legislation, OCGA § 13-

8-2 (a) (2) was amended to distinguish such “contracts in partial 

restraint of trade” from those in general restraint of trade, which 
19

remained “contrary to public policy.” See former OCGA § 13-8-2 (a) 

(2), as amended by Ga. L. 1990, p. 1676, § 1. In doing so, the General 

Assembly adopted the longstanding public-policy-based distinction 

in our decisional law between unenforceable contracts in general 

restraint of trade and reasonable restrictive covenants. See 

Peachtree-Cain Co. v. McBee, 254 Ga. 91, 93 (1) (327 SE2d 188) 

(1985) (noting that “when a statute is codified from . . . decision[s] of 

this court, unless the language of the [statute] imperatively requires 

a different construction, it will be presumed that the General 

Assembly in adopting it intended merely to adopt the principle of 

law announced in the decision[s] from which it is taken” (citation 

and punctuation omitted)). See also Crum v. Jackson Natl. Life Ins. 

Co., 315 Ga. 67, 77 (2) (c) (ii) (880 SE2d 205) (2022) (“we presume 

that the legislature enacted the new statute ‘with full knowledge of’

the extant body of decisional law”).

Soon after its enactment, OCGA § 13-8-2.1 was declared 

unconstitutional because its provision allowing for the “partial 

enforcement” of unreasonable restrictive covenants (i.e., blue 
20

penciling) would have “breathe[d] life into” contracts that “[had] the 

effect of defeating or lessening competition,” in violation of Article 

III, Sec. VI, Par. V (c) of the 1983 Georgia Constitution. See Jackson 

& Coker, Inc. v. Hart, 261 Ga. 371, 372 (1) (405 SE2d 253) (1991). 

But nothing in Jackson disturbed the conceptual distinction 

between general and partial restraints of trade (i.e., reasonable 

restrictive covenants) or the understanding that unreasonable 

restrictive covenants were contracts in general restraint of trade.

(ii) When the General Assembly enacted the GRCA some 20 

years later—after the ratification of a constitutional amendment to 

address the issue identified in Jackson5—it carried forward the 

settled understanding that unreasonable restrictive covenants are 

general restraints of trade that contravene public policy. Ga. L. 

2011, p. 399, 400, § 2 (repealing prior OCGA § 13-8-2 (a) (2) and 

reenacting it in its current form). Through the GRCA, the General 

5 See Ga. L. 2011, p. 399, 399-400, § 1 (detailing legislative history of 

GRCA, including constitutional amendment); Ga. Const. of 1983, Art. III, Sec. 

VI, Par. V (c) (as amended Nov. 2, 2010) (authorizing “judicial enforcement” of 

certain “contracts or agreements restricting or regulating competitive 

activities” and expressly allowing blue-penciling).
21

Assembly set up a comprehensive scheme for determining whether

restrictive covenants are reasonable and thus enforceable. See 

OCGA §§ 13-8-53 (a), (c), 13-8-56, 13-8-57 (together, providing that 

reasonable restrictive covenants are enforceable and establishing 

standards for determining whether a given covenant is reasonable); 

13-8-55 (setting pleading and burden of proof requirements). In 

several ways, that scheme reflects a more permissive and flexible

approach to restrictive covenants compared to what had developed 

through our decisional law. See Burson v. Milton Hall Surgical 

Assocs., LLC, 343 Ga. App. 159, 161 (806 SE2d 239) (2017) (noting 

that prior to the enactment of the GRCA, “‘Georgia law disfavored 

restrictive covenants’” (citation omitted)). For example, the GRCA 

tells courts to construe restrictive covenants “in favor of providing 

reasonable protection to all legitimate business interests 

established by the person seeking enforcement.” OCGA § 13-8-54 (a). 

And, as now authorized by the 2010 constitutional amendment, it 

expressly allows blue-penciling: if a court concludes that a 

restrictive covenant violates the GRCA as written, the court “may 
22

modify the restraint provision and grant only the relief reasonably 

necessary” to protect the proponent’s legitimate business interests 

and to “achieve the original intent of the contracting parties.” OCGA 

§ 13-8-54 (b). See also OCGA § 13-8-53 (d). Compare Coleman v. 

Retina Consultants, P.C., 286 Ga. 317, 320 (1) (687 SE2d 457) (2009) 

(before GRCA, noting that Georgia courts generally did not bluepencil overly broad restrictive covenants). This more permissive 

approach is grounded in the General Assembly’s express finding 

that “reasonable restrictive covenants . . . serve the legitimate 

purpose of protecting legitimate business interests and creating an 

environment that is favorable to attracting commercial enterprises 

to Georgia and keeping existing businesses within the state.” OCGA 

§ 13-8-50.

But the GRCA’s more permissive scheme for construing and 

enforcing restrictive covenants still preserved the settled 

understanding that restrictive covenants that are unreasonable—

i.e., those which do not comply with the GRCA—are against public 

policy. Under the GRCA, such restrictive covenants are not only 
23

“unlawful” but “void and unenforceable.” OCGA § 13-8-53 (d). See 

also OCGA § 13-8-54 (b) (“In any action concerning enforcement of a 

restrictive covenant, a court shall not enforce a restrictive covenant 

unless it is in compliance with the provisions of Code Section 13-8-

53.”). That language is the same kind of language used in our 

decisional law to describe the effect of concluding that a restrictive 

covenant was against public policy. See, e.g., W.R. Grace, 262 Ga. at 

465 (1) (unreasonable restrictive covenants are “void”); Moore, 226 

Ga. at 836-837 (1) (same); Aladdin, 214 Ga. at 520 (2) (unreasonable 

restrictive covenant was “unenforceable”). And more important, the 

GRCA maintained the public-policy-based line our decisional law 

has drawn between contracts in general restraint of trade and 

reasonable restrictive covenants: revised OCGA § 13-8-2 (a) (2)

distinguishes between “[c]ontracts in general restraint of trade,” 

which remain “contrary to public policy,” and “contracts which 

restrict certain competitive activities, as provided in [the GRCA].” 

This latter language swaps out the “partial restraint of trade” label 

our decisional law (and the short-lived OCGA § 13-8-2.1) gave to 
24

reasonable restrictive covenants in favor of the GRCA and its 

standards for determining whether a given restrictive covenant is 

reasonable. And the juxtaposition of that language against the 

“general restraint of trade” language—which our decisional law has 

long used interchangeably with unreasonable restrictive 

covenants—is hard to understand as anything other than readoption of the settled understanding that unreasonable restrictive 

covenants are against public policy.

(e) What does this mean for the choice-of-law question before 

us? Put simply, it means that the inquiry must start with Georgia 

law. As discussed above, under OCGA § 1-3-9, Georgia courts may 

not enforce foreign law if it would contravene our public policy. And 

as we have just explained, restrictive covenants that do not comply 

with the GRCA are contrary to public policy. So a Georgia court that 

is asked to apply foreign law to determine whether to enforce a 

restrictive covenant must first apply the GRCA to determine 

whether the restrictive covenant complies with it. This includes an 

analysis of whether the restrictions at issue are “reasonable in time, 
25

geographic area, and scope.” OCGA § 13-8-53 (a). If the court applies 

the GRCA and concludes that the restrictive covenant is reasonable, 

the court can honor the choice-of-law provision and apply the foreign 

law to determine the enforceability of the restrictive covenant. If, on 

the other hand, applying the GRCA shows that the restrictive 

covenant is unreasonable, the restrictive covenant is against public 

policy, see OCGA § 13-8-2 (a) (2), and the court may not apply foreign 

law to enforce it, see OCGA § 1-3-9. Instead, the court must apply 

Georgia law, which would not allow for the enforcement of the 

unreasonable restrictive covenant as written. That said, the court 

would have the power under Georgia law to partially enforce the 

covenant through blue-penciling—“modify[ing]” the covenant and 

“grant[ing] only the relief reasonably necessary” to protect 

legitimate business interests and achieve the parties’ intent “to the 

extent possible.” OCGA § 13-8-54 (b); see also OCGA § 13-8-53 (d).6 

6 The Court of Appeals’ opinion can be read to suggest that Georgia 

courts may simply decline to blue-pencil an unreasonable restrictive covenant

without reason. See Burbach, 363 Ga. App. at 192 (1) n.8 (“Although Georgia 

courts may apply the ‘“blue pencil’” doctrine and modify unreasonable 
26

Our conclusion that Georgia courts may not apply foreign law 

to enforce a restrictive covenant that would be deemed unreasonable 

under Georgia law largely tracks our courts’ approach before the 

GRCA and the corresponding constitutional amendment were in 

force. See Convergys Corp., 276 Ga. at 808-809 (declaring, in regard 

to certified question on whether Ohio law should govern the 

noncompetition agreement at issue, that “we continue to refuse to 

enforce contractual rights which contravene the policy of Georgia”); 

Nasco, Inc., 239 Ga. at 676-677 (2) (noting that “[c]ovenants against 

disclosure, like covenants against competition, affect the interests of 

restrictive covenants, Georgia courts are not required to do so.”) (citing OCGA 

§ 13-8-54 (b) (“[T]he court may modify the restraint provision.” (emphasis 

added by the Court of Appeals)))). To be sure, this provision’s use of the word 

“may” indicates that the court may exercise discretion to determine whether 

or not to blue-pencil an agreement. See Belt Power, LLC v. Reed, 354 Ga. App. 

289, 294-295 (2) (b) (840 SE2d 765) (2020). That said, the same statute that 

empowers a court to blue-pencil a restrictive covenant also requires a court to 

construe restrictive covenants “to comport with the reasonable intent and 

expectations of the parties” and “in favor of providing reasonable protection to 

all legitimate business interests established by the person seeking 

enforcement.” OCGA § 13-8-54 (a). And the blue-penciling provision empowers 

a court to modify a restrictive covenant for precisely those purposes. See OCGA 

§ 13-8-54 (b). Given this language, it is not obvious to us that a trial court’s 

discretion to blue-pencil or not is wholly unbounded. That said, we leave for 

another day any questions about the breadth of a trial court’s discretion to 

decide whether to blue-pencil a restrictive covenant under this provision.
27

this state, . . . and hence their validity is determined by the public 

policy of this state,” and thus applying Georgia law rather than that 

of selected state to conclude that restrictive covenants were invalid); 

Hostetler v. Answerthink, Inc., 267 Ga. App. 325, 328 (b) (599 SE2d 

271) (2004) (“A choice of law provision set forth in an agreement 

containing a restrictive covenant will not allow the parties to choose 

a jurisdiction that will uphold what is against Georgia public policy; 

Georgia courts will decide the validity of such restrictive covenant 

in partial restraint of trade under Georgia law.”). Motorsports

suggests that those decisions were grounded in a pre-GRCA 

“hostility” to restrictive covenants and thus were effectively 

abrogated when the GRCA was enacted. It is not clear to us that 

they are right on that point, but even assuming they are, it is of no 

moment: as we have explained, our conclusion here is grounded in

statutes currently in force, including OCGA § 13-8-2 and the GRCA.

The enactment of the GRCA and its enabling constitutional 

amendment may have liberalized our State’s general approach to 

restrictive covenants, but as we have shown above, the legislature 
28

retained the consistent and longstanding view that unreasonable 

restrictive covenants are against public policy and may not be 

enforced by Georgia courts. See OCGA §§ 13-8-53 (a), (d); id. § 13-8-

54 (b). And the GRCA certainly did not change our State’s 

longstanding and codified policy of declining to apply foreign law to 

enforce contracts against the public policy of our State. See OCGA § 

1-3-9; Convergys Corp., 276 Ga. at 809; Ulman, Magill & Jordan 

Woolen Co., 155 Ga. at 557-558. In other words, although the GRCA 

implemented an approach to restrictive covenants that is more 

flexible in some ways, that new flexibility still does not include 

allowing Georgia courts to enforce restrictive covenants that are 

deemed unreasonable under Georgia law. 

3. Having now clarified the standard for determining whether 

to apply contracting parties’ choice of foreign law to govern the 

enforceability of a restrictive covenant in an employment contract, 

we vacate the judgment below and remand this case to the Court of 

Appeals. On remand, the Court of Appeals is directed to vacate the 

judgment of the trial court and remand the case to that court, so that 
29

it may in the first instance apply the framework set out above. To do 

that, the trial court must first apply the GRCA to determine whether 

the restrictive covenants in Burbach’s employment agreements 

comply with it. If the covenants are reasonable under Georgia law,

see OCGA § 13-8-53, the court must then apply the parties’ chosen 

law—Florida law—to determine their ultimate enforceability.7 If the 

covenants as written do not comply with the GRCA, then enforcing 

them would violate Georgia public policy, and so the court may not

apply foreign law to enforce them. Instead, Georgia law would 

govern the covenants, and so the trial court would apply our law, 

including the GRCA’s blue-penciling provision, to determine 

whether the restrictive covenants may be enforced in part.

Judgment vacated and case remanded with direction. All the 

Justices concur.

7 We do not decide here whether, and under what circumstances, a 

Georgia court could decline to apply the parties’ choice of foreign law if that 

law would invalidate a restrictive covenant that would be enforceable under 

Georgia law.