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Vol 12 (2014) - Issue 3

Should regulators make international healthcare franchising a special case?

Dr Mark Abell, Bird & Bird, London, UK

Many of the developed world’s healthcare services are in crisis, mostly as a result of inadequate funding following an unprecedented fiscal crisis. Meanwhile, the provision of healthcare in the developing world is far below what it should be due to lack of funding, infrastructure and relevant expertise. This article explores how peer to peer franchising could play an important role generating new income streams for underfunded healthcare services in developed countries whilst transferring efficient healthcare infrastructure to developing countries. The author suggests that the unique social role that franchising can play in the international healthcare sector means that it should be exempted from the various franchising regulatory regimes around the world.

Court decisions on pre-contractual disclosure

Luciana Bassani, Dannemann Siemsen Advogados, Rio de Janeiro, Brazil, Professor Aldo Frignani, Frignani Virano, Torino, Italy, Paul Jones, Jones & Co., Toronto, Canada, Karsten Metzlaff, Noerr LLP, Berlin, Germany

While some countries have written disclosure laws, others do not but courts have developed a set of pre-contractual disclosure obligations by case law. However, it is common to both, countries with and without specific written disclosure legislation that there is a growing body of decided cases that are adding more than a little stress and worry for those in a franchise organisation or the legal community responsible for franchise regulatory compliance. This article provides a detailed account of legislation and case law on the legal basis for pre-contractual disclosure, on the consequences of a failure to disclose, making false assertions, providing insufficient disclosure on a range of subjects and on exemptions from disclosure, on liability for inadequate disclosure and on the burden of proof as between franchisor and franchisee. The authors focus in particular on the legal systems of Brazil, Canada, China and a number of EU member states, including Germany and Italy.

Developments in Chinese franchising regulation

Tao Xu, DLA Piper, Washington, D.C., USA

It has been seven years since China’s Regulations on the Administration of Commercial Franchise1 (the “Franchise Regulation”) went into effect. In these six years, the number of franchise systems in China has doubled to more than 5,000, and the number of franchised outlets has exploded from less than 200,000 to more than 1,000,000.2 Along with the maturing of the business of franchising in China, the legal framework of franchise regulation has also made great strides in the past few years. This article provides an overview the legal and case law developments concerning franchising in China in the last three years.

Changes to Korean franchise regulation

Jae Hoon Kim, Lee & Ko, Seoul, Korea

The Korean National Assembly passed legislation to revise the Act on Fairness in Franchise Transactions in July 2013. The revision seeks to prevent franchisors – often large conglomerates – from abusing their bargaining power, in particular when negotiating with franchisees who are not sophisticated business entities, and simultaneously to respond to the public’s demand for economic equality. The new provisions, with the exception of those regarding the franchisee’s business territory, have taken effect in February 2014. This article provides an overview of the most important changes to the Act.

Book review - The law and regulation of franchising in the EU

Michael T. Schaper, Ph.D., Deputy Chairman, Australian Competition & Consumer Commission; Adjunct Professor, John Curtin Institute of Public Policy, Curtin University, Western Australia

Does cross-border regulation work for – or against – business growth? And what is the most appropriate regulatory response to encourage entrepreneurship in such an environment? That, in a nutshell, is the central issue which this book examines. The author provides a critical analysis of Mark Abell's book, which argues in favour of a common legal framework for franchising in the EU.