Editorial
No one could accuse franchising of being a staid or boring area of law. 2006 has seen a great deal of change in the regulation of franchising in Europe. Not only have the new Swedish and Belgian Disclosure Laws come into force, but the Italian and Spanish Disclosure Laws have been substantially amended.
EU Anti-trust Law has also been clarified and the ability of the authorities to impose fines for breach of Article 81 of the Treaty of Rome, the EU's anti-trust law, have been confirmed in the Crehan case.
On a more local level there have also been changes in the laws that impact upon franchising in a number of EU member states. These include consumer credit in the UK and disclosure obligations in Belgium, Italy and Sweden.
Looking further afield there has also been a fair amount of activity. In Australia a government review of the franchise law is underway. In the USA everyone is waiting with baited breath for the long promised new FTC Franchise rule and the expectation is that it should see the light of day early next year. The Middle East has seen an unwelcome development in the attitude of the tax authorities in some jurisdictions in relation to franchising. However it is not all bad news. For example the intellectual property rights of franchisors were given a fillip in Malaysia when McDonalds successfully injuncted the "McCurry" food chain.
Over the last 12 months the Franchise Team here at FFW has been immersed in a number of large global projects that have brought many of these changes into sharp focus for us. What does "amortisation" of a franchise investment really mean in the Belgian law? What is the impact of a foreign choice of law clause on the applicability of the Romanian franchise law? Can Franchisors contract out of German cooling off rights through adopting a foreign law in their German franchise agreements? How should development deals in the Middle East be structured so as to avoid the threat of double taxation? Are joint venture arrangements truly excluded from disclosure requirements in all jurisdictions? Can a back to back management agreement exclude a development deal from the impact of the Australian franchise law? And how do you most effectively co-ordinate multi-jurisdiction disclosure on a worldwide multi-million dollar franchise deal? No, franchising is certainly not a staid and boring area of the law!