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The issue of applicable law in international franchising. Silvia Bortolotti. Index. Contractual framework Choice of law Effectiveness of the choice Co-ordination with the choice of forum/arbitration Law applicable in the absence of choice. Contractual framework. Master franchising:
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The issue of applicable law in international franchising Silvia Bortolotti
Index • Contractual framework • Choice of law • Effectiveness of the choice • Co-ordination with the choice of forum/arbitration • Law applicable in the absence of choice
Contractual framework Master franchising: • contract between franchisor and master franchisee • contracts between the master franchisee and the sub-franchisees Area development / area representation: • contract between franchisor and area developer / area representative • contracts governing the franchise units
Choice of law • Laws of the franchisor’s home country • Laws of the host country • Laws of a third country • Further solutions (e.g. lex mercatoria, UNIDROIT Principles)
Effectiveness of the choice • Provisions that can be derogated from by the parties • Mandatory rules • Internationally mandatory rules
Co-ordination with the choice of forum/arbitration • Application of internationally mandatory rules by national Courts • Enforcement of foreign judgements
Conclusive remarks on choice of law • The choice of law (together with the choice of forum/arbitration) should not be overlooked while drafting and negotiating those types of contract • It is advisable to carefully verify the effectiveness of the specific contractual provisions within the host country
Law applicable in the absence of choice Possible criteria provided by conflict of law rules: • characteristic performance • law of the franchisee's country • law of the place where the contract was concluded • law of the place of performance
Thank you for your kind attention! Silvia Bortolotti