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Vol 16 (2018) - Issue 5

Franchising and Brexit - Where are we now?

Dr Mark Abell, Bird & Bird, London, UK

As we creep inexorably towards 29 March 2019 – the date on which Brexit becomes a reality – franchisors are becoming increasingly concerned about how their franchise agreements may be impacted by it. Entering into new franchise agreements during periods of economic or political uncertainty can give rise to unique challenges. As the UK negotiates its exit from the EU, this article highlights some Brexit-related issues which franchisors may want to consider when contracting during this period. It flags a number of issues that have already been shown to be relevant, although it is not, of course, an exhaustive checklist. There will be additional issues to consider depending on the precise nature of the agreement concerned and progress with the Brexit negotiations.

Know-how in franchise chains: a literature review and interviews with lawyers

Dr. Rozenn Perrigot, Graduate School of Management (IGR-IAE Rennes), University of Rennes 1, Rennes, France, Dr. Guy Basset, Graduate School of Management (IGR-IAE Rennes), University of Rennes 1, Rennes, France, Dr. Begoña López-Fernández, Facultad de Economía y Empresa, University of Oviedo, Oviedo, Spain, and Dr. Anna Watson, Hertfordshire Business School, University of Hertfordshire, Hatfield, UK

Know-how is widely acknowledged as one of the cornerstones of franchising. However, despite its importance, both in the successful management, but also the regulation of the franchise agreement, it remains a somewhat elusive construct. Within this paper, by drawing on both the ex ante literature and the views of 27 expert lawyers from France, Italy, Spain and the United Kingdom, we seek to gain new insights into the concept of know-how, by addressing the following questions: How are know-how requirements understood and interpreted by doctrine and jurisprudence? And, is there consensus in the interpretation of the characteristics of know-how? In this paper, we try to answer these questions. We believe the findings allow us to better understand the concept of know-how and provide a critical insight of the various characteristics of the know-how imposed by the European regulation. The findings further highlight the importance of evaluating the effectiveness of know-how.

The ECJ judgment in the Coty Germany case regarding the use of third party platforms in selective distribution systems

Rocío Belda de Mergelina, J&A Garrigues SLP, Madrid, Spain

The Coty Germany case has afforded the European Court of Justice an opportunity to consider the legality of selective distribution systems under EU competition law. A number of national competition authorities and courts had been questioning the legality of suppliers banning retailers from using increasingly popular electronic marketplaces run by third parties, a ban that is commonplace in selective distribution systems. This article analyses the questions submitted to the Court in detail and assesses the implications of its ruling for products that qualify for selective distribution under the criteria settled in the Court’s case law.