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Anatomy of a franchise dispute: Lessons for transactional lawyers drafting franchising agreements

Francesca R. Turitto, Roma Legal Partners, Rome, Italy, Olivia Gast, Gast Avocats, Paris, France, Eduardo Damião Gonçalves, Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados, São Paulo, Brazil and Craig Tractenberg, Fox Rothschild LLP, New York, USA

This article attempts to distil the secrets of drafting franchise documents in an effort to pre-emptively avoid disputes, bringing together the insights litigators, dispute resolution and transactional lawyers, including lawyers who have been arbitrators in franchise disputes. The authors identify recurrent issues in the franchise relationship which should be addressed by drafting. Recognizing the differences from country to country, state to province, industry to industry, will help transactional lawyers limit the opportunities for disagreement. To the extent that disputes occur, as is inevitable, careful drafting will render the outcomes more predictable. This article aims to identify the risks and the possible drafting techniques to address the risks, and to minimise the chance that certain contractual provisions are unenforceable.

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Publication date:

November 2016