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International Franchising 2006: Why Attorneys Need to Know the Laws in Other Countries
In many countries around the world, concepts that are common in the United States are considered exotic to the local populace. Furthermore, as more and more Americans travel abroad, they welcome the sight of a familiar brand from “back home.” As a result of these two factors, when U.S.-based franchisors seek to expand abroad, they often find a ready audience. In fact, many franchisors get their first taste of international franchising when they are approached by a potential franchisee, asking for the opportunity to obtain franchise rights to a particular country or region of a country. It is only later that the franchisor actually begins to focus on active development of franchises outside the United States.
What should U.S. counsel for a franchisor do when asked to assist with this type of international franchise relationship? One of the first and most important tasks is to identify competent local counsel that is fluent in English and is sufficiently familiar with U.S. legal concepts to be able to explain the differences between U.S. law and local law. Outside the United States, most countries do not have legislation that is specific to franchising. That is not to say, however, that the countries have no laws affecting franchising. In every country, there are laws of general applicability that will affect the franchise relationship. Prime among these are trademark laws, which every country has, and which inevitably affect franchising. Other generally applicable laws that are likely to have an influence on franchising are tax laws (and tax treaties), laws relating to foreign remittances (or similar currency restrictions), sales agency laws, antitrust laws, and laws regarding technology or know-how licensing.
These types of generally applicable laws mean that it will be necessary to consider local laws any time a franchisor does business outside the United States, regardless of whether the host country has a franchise-specific law. It may be necessary to modify the franchisor's U.S. form of franchise agreement or to create an entirely different form of agreement (eg, a master franchise agreement with subfranchising rights). As a result, it is always advisable to have local counsel review and comment on the agreements proposed for use in the country, not only to determine if modifications to the document are necessary, but also to ascertain if there are provisions that would not be enforceable regardless of the level of modifications, or if there are alternative approaches to accomplish the same objective.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.