Search Publication

Vol 12 (2014) - Issue 1

Directing the disjointed: a call to harmonize EU franchise law

Robert W. Emerson, Professor of Business Law, University of Florida, Gainesville, Florida, USA

Following a review of The Law and Regulation of Franchising in the EU offering a US franchising practitioner’s view, this article continues the debate with an academic analysis of its main propositions. The author considers the critical analysis of franchise laws in the main European markets, the detailed economic and business statistics, an empirical analysis of key contract terms, the findings of a survey of franchisors and the proposed EU Directive survey. He concludes that the book lays the groundwork to continue the work on creating a harmonized, workable framework for franchising throughout, and across the borders of, all EU states.

The duty of good faith in franchise agreements – a comparative study of the civil and common law approaches in the EU

Dr Mark Abell and Victoria Hobbs, Bird & Bird, London, UK

This article considers how the duty of good faith impacts on the on-going relationship between franchisor and franchisee in the civil and common law traditions. The concept of good faith is firmly established in the civil law jurisdictions of the EU, particularly in German and French law, but it manifests itself in different forms in each of them. In English law, the idea that good faith is not part of business-to-business contracting is now outdated. Recent English case law confirms that an implied concept of good faith is steadily gaining recognition as a legally binding concept during the performance phase of contracts particularly long term relational agreements such as franchise agreements.

Pros and cons of using a uniform international disclosure document

Leonard Polsky, Gowling Lafleur Henderson LLP, Vancouver, Canada, Luciana Bassani, Dannemann Siemsen Advogados, Rio de Janeiro, Brazil, Philip Colman, Mason Sier Turnbull, Melbourne, Australia, Remi Delforge, Remi Delforge Avocats, Paris, France, Gary Duvall, Dorsey & Whitney LLP, Seattle, USA

This article explores the feasibility of using a standard international franchise disclosure document, as a starting point, containing the information about the franchisor, franchise offerings, franchisees and franchisor outlets, which would normally be provided in most disclosures. The international franchisor would then work with local counsel to conform or add to the document for specific transactions and use in a country to comply with local franchise disclosure law requirements, if any, through specific addenda or statements of material changes, or by using the contents of the international franchise disclosure document in preparation of a locally compliant franchise disclosure document. The authors discuss the relative advantages and disadvantages of this approach, versus other approaches, from the perspective of various countries and regions having existing and mature franchise disclosure laws in place.