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Vol 13 (2015) - Issue 5

Good faith in franchising

Paula Mena Barreto, BMA, Rio de Janeiro, Brazil, Silvia Bortolotti, Buffa, Bortolotti & Mathis, Turin, Italy, Melissa Murray, Bird & Bird LLP, Abu Dhabi, United Arab Emirates, Cristóbal Porzio, Porzio, Rios & Asociados, Santiago, Chile and Josh Simons, Thomson Geer, Adelaide, Australia

This article discusses the concept of good faith as it applies to franchising in the jurisdictions of Brazil, Italy, Australia and Chile. It addresses how franchising is regulated in each jurisdiction, how the concept of good faith applies to franchise agreements in each jurisdiction and analyses noteworthy cases from each jurisdiction. The authors conclude that franchisors and franchisees need to be mindful of the obligations arising from the concept of good faith, particularly as its application by the courts in franchising is heavily reliant on the specific facts of each case.

International mergers and acquisitions of franchise companies

Jeffrey A. Brimer, Alexius, LLC, Denver, USA, Beata Krakus, Greensfelder, Hemker & Gale, P.C., Chicago, USA and Gilles Menguy, GM Avocats, Paris, France

This article analyses the format, due diligence considerations and risk factors in relation to international M&A transactions in the franchising sector. The formats considered include a franchisor acquiring its foreign master or unit franchisee, a franchisor acquiring a foreign competitor franchise company and private equity acquiring a foreign franchise company. The international nature of the transaction results in specific due diligence requirements as regards intellectual property rights, disclosure and registration compliance and relationships with foreign franchisees. The authors finally consider the risks inherent in off balance sheet information, change mismanagement and the potential negative impact on franchisees.

Protecting trade secrets in franchising

Lorraine Tay and Jolin Lin, Bird & Bird LLP, Singapore

The need for franchisors to take a harmonised and globally effective approach to the protection of their know-how is more important than ever before. This article analyses the approaches to protecting trade secrets employed by the United States, the European Union, China, the United Kingdom and Singapore. In addition, the authors propose several tools that transcend jurisdictional boundaries which franchisors may consider employing to protect their trade secrets. Considering that several countries are seeking to harmonise trade secret laws or to accord greater protection to trade secrets, the authors conclude that franchisors should leverage these developments to assess or re-assess the steps that they may need to take in order to protect their trade secrets.