ICLG FRANCHISE 2017 Legal Guide ( International Legal Guide)

The International Comparative Legal Guide to:
A practical cross-border insight into franchise law
Published by Global Legal Group, with contributions from:
Anderson Mōri & Tomotsune
Archer & Angel
Christodoulou & Mavrikis Inc.
Cuatrecasas, Gonçalves Pereira
Daniel Advogados
DBB
DLA Piper
Dubler Attorneys at Law
Gorodissky & Partners (Ukraine)
Gorrissen Federspiel
GRATA International
HLG Avocats
Jacobsen + Confurius Rechtsanwälte
Jones & Co.
Lapointe Rosenstein Marchand Melançon LLP
Marsh & Maher Lawyers
Sagell & Co. Advokatbyrå AB
The Richard L. Rosen Law Firm, PLLC
Zumtobel Kronberger Rechtsanwälte OG
3rd Edition
Franchise 2017
ICLG

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Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720
Disclaimer
This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice.
Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication.
This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified
professional when dealing with specific situations.
General Chapter:
Country Question and Answer Chapters:
2 Australia Marsh & Maher Lawyers: Robert Toth 4
3 Austria Zumtobel Kronberger Rechtsanwälte OG: Dr. Amelie Pohl 12
4 Belgium DBB: Benoit Simpelaere & Leonard Hawkes 18
5 Brazil Daniel Advogados: Hannah Vitória M. Fernandes & André Ferreira de Oliveira 26
6 Canada Lapointe Rosenstein Marchand Melançon LLP: Bruno Floriani &
Marissa Carnevale 34
7 China Jones & Co.: Paul Jones & Xin (Leo) Xu 44
8 Denmark Gorrissen Federspiel: Lasse Søndergaard Christensen & Søren Høgh Thomsen 52
9 England & Wales DLA Piper: Iain Bowler 59
10 France HLG Avocats: Helen Coulibaly-Le Gac & Céline Tran 68
11 Germany Jacobsen + Confurius Rechtsanwälte: Dr. Kay Jacobsen 76
12 India Archer & Angel: Srijoy Das & Anup Kumar 83
13 Japan Anderson Mōri & Tomotsune: Kenichi Sadaka & Aoi Inoue 90
14 Kazakhstan GRATA International: Saule Akhmetova 98
15 Portugal Cuatrecasas, Gonçalves Pereira: Vasco Bivar de Azevedo & Mónica Pimenta 106
16 Russia GRATA International: Yana Dianova 115
17 South Africa Christodoulou & Mavrikis Inc.: Alex Protulis 124
18 Sweden Sagell & Co. Advokatbyrå AB: Dan-Michael Sagell 132
19 Switzerland Dubler Attorneys at Law: Dr. Andreas M. Dubler 138
20 Ukraine Gorodissky & Partners (Ukraine): Nina Moshynska & Oleg Zhukhevych 146
21 USA The Richard L. Rosen Law Firm, PLLC: Richard L. Rosen & John Karol 156
1 Building a Franchise System from Scratch in an Increasingly Integrated Global Marketplace –
Iain Bowler, DLA Piper 1
Contributing Editor
Iain Bowler, DLA Piper
Sales Director
Florjan Osmani
Account Directors
Oliver Smith, Rory Smith
Sales Support Manager
Paul Mochalski
Sub Editor
Nicholas Catlin
Senior Editor
Rachel Williams
Chief Operating Officer
Dror Levy
Group Consulting Editor
Alan Falach
Group Publisher
Richard Firth
Published by
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Printed by
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December 2016
Copyright © 2016
Global Legal Group Ltd.
All rights reserved
No photocopying
ISBN 978-1-911367-29-1
ISSN 2055-8082
Strategic Partners
The International Comparative Legal Guide to: Franchise 2017

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© Published and reproduced with kind permission by Global Legal Group Ltd, London
Chapter 2
Australia
1.3 If a franchisor is proposing to appoint only one
franchisee/licensee in your jurisdiction, will this
person be treated as a “franchisee” for purposes of
any franchise disclosure or registration laws?
The obligations to provide disclosure exist between a franchisor and
its prospective or existing franchisee (including a Master Franchisor
in its dealings with Sub-Franchisors). A Master Franchisor is not
required to comply with these obligations in relation to a sub-
franchisee unless the Master Franchisor is a party to the Sub-
Franchise Agreement.
The terms and definitions have changed under the new Franchise
Code in Australia:
■ An overseas or Head Franchisor is now referred to a Master
Franchisor.
■ An Australian Master Franchisor is now referred to as a Sub-
Franchisor.
■ The Sub-Franchisor then appoints sub-franchisees (Unit
Franchisee).
The terms Master Franchise and Sub-Franchisor have been defined
under the Code.
The Master Franchisor, sub-franchisee, and Sub-Franchise
Agreement are not defined.
There is no longer a need for joint disclosure or a separate disclosure
document to be provided by the Master Franchisor (foreign or
overseas franchisor) to a sub-franchisee.
1.4 Are there any registration requirements relating to the
franchise system?
There are no registration requirements for Franchise Agreements in
Australia; however, Agreements can be inspected by the Regulator,
the Australian Competition and Consumer Commission (“ACCC”).
Record-keeping is necessary for compliance with the Code.
Franchisors are required to retain anything provided to them
in writing by franchisees or prospective franchisees, including
documents provided electronically.
1.5 Are there mandatory pre-sale disclosure obligations?
Yes, the franchisor is required to provide a prospective first-time
franchisee with an “Information Statement” on enquiry, or as soon
as practicable after an enquiry on interest in acquiring a franchise.
1 Relevant Legislation and Rules
Governing Franchise Transactions
1.1 What is the legal definition of a franchise?
To best understand the meaning of a franchise, reference should be
made to the definition of Franchise Agreement outlined in Clause 5
of the Franchise Code of Conduct (“the Code”).
Clause 5: A Franchise Agreement is an agreement (either written or
implied) that meets the following conditions:
1) the franchisor has granted the franchisee the right to carry
on the business of offering, supplying or distributing goods
or services in Australia under a system or marketing plan
substantially determined, controlled or suggested by the
franchisor (or an associate of the franchisor);
2) the operation of the business is substantially or materially
associated with a trade mark, advertising or commercial
symbol that is owned, used, licensed or specified by the
franchisor (or the associate); and
3) the franchisee is required to pay, or has agreed to pay a fee to
the franchisor (or its associate) before starting or continuing
the business, which may be:
i) an initial capital investment fee;
ii) a payment for goods or services;
iii) a fee based on a percentage of gross or net income; or
iv) a training fee or training school fee.
A motor vehicle dealership agreement will automatically be
covered by the Code even if the above conditions have not been
met. However, the Code will not apply where the agreement was
entered into before 1 October 1998 (unless the agreement has been
transferred, renewed or extended on or after that date).
1.2 What laws regulate the offer and sale of franchises?
The sale and offer of a franchise in Australia is regulated by the
mandatory Code under the Competition and Consumer (Industry
Codes – Franchising) Regulation 2014, implemented under the
Competition and Consumer Act 2010. It is a Federal Act that covers
all States and Territories in Australia.
Robert Toth

5WWW.ICLG.CO.UKICLG TO: FRANCHISE 2017
Australia
1.11 Is there a requirement for franchise documents or
disclosure documents to be translated into the local
language?
Yes, foreign franchisors entering into Australia must provide
disclosure and franchise documentation in the English language to
comply with the requirements that the franchisee must have read and
obtained legal and accounting advice in respect to the documents.
2 Business Organisations Through Which a
Franchised Business can be Carried On
2.1 Are there any foreign investment laws that
impose restrictions on non-nationals in respect
of the ownership or control of a business in your
jurisdiction?
Yes; however, these are unlikely to impact on a franchisor as the
thresholds for foreign investment are very high.
2.2 What forms of business entity are typically used by
franchisors?
Generally, the establishment of an incorporated proprietary limited
company under the Corporation’s Act 2010 is used. Ownership of
the Australian company may be held by the foreign parent company
as a wholly owned subsidiary.
Generally, foreign franchisors appoint a Master Franchisor subject
to certain performance criteria being met. The Master Franchisor
will generally establish a stand-alone company which would then
offer franchises to unit franchisees.
Other rights and structures include the grant of area developer rights,
joint venture arrangements, and limited partnership arrangements.
2.3 Are there any registration requirements or other
formalities applicable to a new business entity
as a pre-condition to being able to trade in your
jurisdiction?
Under the Australian Corporations Law, an incorporated legal entity
must have at least one resident director, and this can often create an
issue where a foreign company does not have any resident able to
take up that role.
There are professionals in Australia that will take on the role of a
resident director to assist a foreign company.
3 Competition Law
3.1 Provide an overview of the competition laws that
apply to the offer and sale of franchises.
Franchising as stated is governed Australia-wide by the mandatory
Franchise Code under the Franchise Regulations; however,
franchisors must also comply with the Australian consumer laws
under the Australian Competition and Consumer Act 2010 which
govern issues such as, not engaging in misleading and deceptive
conduct, not engaging in unconscionable conduct and not engaging
in third-line forcing and often anti-competitive conduct.
In addition, a Disclosure Document (in the form set out under the
Code) with a copy of the proposed Franchise Agreement, a copy
of the Code, and any other ancillary agreements such as a licence
to occupy or other agreements relevant to the franchise, must be
provided. The Code requires the franchisor to give the franchisee
the above documents at least 14 days before they:
1. enter into a Franchise Agreement (or an agreement to enter
into a Franchise Agreement);
2. pay any non-refundable money or other valuable
consideration to the franchisor or associate in connection
with the Franchise Agreement; and
3. renew or extend the Franchise Agreement.
1.6 Do pre-sale disclosure obligations apply to sales
to sub-franchisees? Who is required to make the
necessary disclosures?
Yes, an Australian Master Franchisor, now called a Sub-Franchisor,
must provide disclosure to sub-franchisees (unit franchisees).
However, foreign or overseas franchisors are no longer required
to provide disclosure to sub-franchisees. Master or overseas
franchisors must still provide Code-compliant disclosure to their
Sub-Franchisor.
1.7 Is the format of disclosures prescribed by law or
other regulation, and how often must disclosures be
updated? Is there an obligation to make continuing
disclosure to existing franchisees?
Yes; as the disclosure must be in the form set out in the Code and
updated within four months after the end of each financial year, a
failure to do so may leave the franchisor liable to a civil penalty.
There is no requirement to update each year where:
(a) the franchisor did not enter into a Franchise Agreement, or
only entered into one Franchise Agreement during the year;
and
(b) the franchisor does not intend, or its directors do not intend,
to enter into another Franchise Agreement in the following
financial year.
The franchisor must update the disclosure document to reflect the
position of the franchise as at the end of the financial year before the
financial year in which a request for disclosure is made.
1.8 Are there any other requirements that must be met
before a franchise may be offered or sold?
Yes, as stated above in questions 1.3 to 1.7 inclusive.
1.9 Is membership of any national franchise association
mandatory or commercially advisable?
No; however, membership with the Franchise Council of Australia
(“FCA”) is highly recommended, as it provides credibility and
access to education and resources.
1.10 Does membership of a national franchise association
impose any additional obligations on franchisors?
Franchisors who become members of the FCA are required to
comply with the ethical standards and codes of conduct set out in
the Association’s Memorandum and Constitution.
Marsh & Maher Lawyers Australia

Australia
brand and relevant trade marks in the correct classes. In some cases,
overseas companies have found that they are unable to register their
brand in Australia.
The registration of a trade mark gives a registered trade mark owner
exclusive right to use the mark for a term of 10 years.
4.2 Are know-how, trade secrets and other business-
critical confidential information (e.g. the Operations
Manual) protected by local law?
No. Franchisors need to protect their confidential information
and trade secrets contractually under the terms of their Franchise
Agreement.
4.3 Is copyright (in the Operations Manual or in
proprietary software developed by the franchisor
and licensed to the franchisee under the franchise
agreement) protected by local law?
No, copyright is inherent under common law and under the
Copyright Act 1968.
5 Liability
5.1 What are the remedies that can be enforced against
a franchisor for failure to comply with mandatory
disclosure obligations? Is a franchisee entitled
to rescind the franchise agreement and/or claim
damages?
A failure to comply with the mandatory disclosure obligations under
the Franchise Code of Australia is a fundamental breach which may
allow a franchisee to terminate the Franchise Agreement, recover
its loss, cost and expenses. The breach may also be referred to the
Australian Competition and Consumer Commission (“ACCC”)
for investigation for imposition of fines and penalties against the
franchisor for the breach.
5.2 In the case of sub-franchising, how is liability for
disclosure non-compliance or for misrepresentation
in terms of data disclosed being incomplete,
inaccurate or misleading allocated between franchisor
and master franchisee? If the franchisor takes an
indemnity from the master franchisee in the Master
Franchise Agreement, are there any limitations on
such an indemnity being enforceable against the
master franchisee?
Ultimately, a claim by a unit franchisee for inadequate disclosure
or misrepresentation will be brought against a Master Franchisor.
If the Master Franchisor relied on information supplied to it by the
Head/foreign Franchisor, it is likely that the Master Franchisor could
join the Head/foreign Franchisor to the cause of action and seek an
apportionment of any liability as between it and the franchisor.
Where a Head/foreign Franchisor has an indemnity from liability
from the Master Franchisee, there are no legislative restrictions
on their relying on the indemnity as it would be a contractual term
between the parties. However, this does not necessarily give the
Head/foreign franchisor complete protection if it failed to disclose
material information or provided misleading information to the
Master Franchisor which was then supplied onto the sub-franchisee.
3.2 Is there a maximum permitted term for a Franchise
Agreement?
No, there are no restrictions as to a minimum or maximum term in
a Franchise Agreement.
3.3 Is there a maximum permitted term for any related
product supply agreement?
No, there is no minimum or maximum term for any related product
or supply agreement.
Franchisors, however, should ensure that they are able to supply
product necessary for the franchisee to maintain and operate the
franchise business over the franchise term.
3.4 Are there restrictions on the ability of the franchisor
to impose minimum resale prices?
Yes, under the Australian Consumer Laws, there are resale price
maintenance provisions which prevent franchisors and businesses
imposing minimum resale prices.
3.5 Encroachment – are there any minimum obligations
that a franchisor must observe when offering
franchises in adjoining territories?
There are no legislative restrictions. It is a contractual matter. The
franchisor must provide clear disclosure on whether it will offer
similar services or product itself in the territory granted to the
franchisee and or online. Most Franchise Agreements now provide
no territory and only an exclusive right to operate only from a site
and provide a marketing area or territory. This will depend on the
nature of the franchise and the products and services being offered.
3.6 Are in-term and post-term non-compete and non-
solicitation of customers covenants enforceable?
Restraints, non-compete and non-solicitation of customer
covenants are contractually enforceable during the term of the
Franchise Agreement. In respect to post-term non-compete and
non-solicitation covenants, non-compete provisions depend on the
individual circumstances and whether the restraint is considered to
be reasonable.
In Australia, non-compete provisions are considered to be anti-
competitive and against public policy.
Any post-term non-compete provision must be clear, and usually
provides for cascading provisions, both as to time and area which
enable a court to read down the non-compete term.
Generally, non-solicitation of customers and employees and
protection of a franchisor’s confidential information and know-how
are enforceable post-franchise term.
4 Protecting the Brand and other
Intellectual Property
4.1 How are trade marks protected?
It is vital, before entering into theAustralian market, that franchisors
conduct necessary searches with IPO Australia and register their

Australia
7.2 Is the concept of an option/conditional lease
assignment over the lease (under which a franchisor
has the right to step into the franchisee/tenant’s
shoes under the lease, or direct that a third party
(often a replacement franchisee) may do so upon the
failure of the original tenant or the termination of the
franchise agreement) understood and enforceable?
Generally, Franchise Agreements provide franchisors with power of
attorney provisions that will enable a franchisor, in the event of a
franchise’s default under the lease, to enter into the premises and
sign documents on behalf of the franchisee.
It is often recommended that the franchisor hold the head lease and
provide a licence to occupy to the franchisee to return control of
the site or head tenant in the event of the franchisee abandoning the
premises or being terminated.
7.3 Are there any restrictions on non-national entities
holding any interest in real estate, or being able to
sub-lease property?
Yes, under the Financial Investment Review Board (“FIRB”)
Federal government policies.
Foreign persons need to notify the FIRB before acquiring an interest
in developed commercial land only if the value of the interest is more
than the relevant notification threshold. The general notification
threshold for developed commercial land is $252 million, unless the
proposed acquisition is considered to be sensitive, in which case the
threshold is $55 million.
If the foreign person is from an agreement investor country, the
threshold is $1,094 million regardless of whether the land is
considered sensitive.
Corporations and trustees of trusts that meet the definition of a
foreign person under the Foreign Acquisitions and Takeovers Act
1975 (“Act”) are required to seek foreign investment approval to
acquire interests in residential real estate and these applications will
be assessed according to the normal rules. Foreign persons can apply
to purchase new dwellings, vacant land for residential development,
or established dwellings for redevelopment into multiple dwellings.
Foreign persons are generally ineligible to purchase established
dwellings as homes, for use as a holiday home or to rent out.
7.4 Give a general overview of the commercial real estate
market. Specifically, can a tenant reasonably expect
to secure an initial rent free period when entering into
a new lease (and if so, for how long, generally), or are
landlords demanding “key money” (a premium for a
lease of a particular location)?
Generally, landlords and Shopping Centre Operators provide
an initial rent-free period (of 1–3 months), or a landlord fit-out
contribution. This varies between shopping centres, and it also
varies greatly between the States and Territories.
The demand for key money is illegal in most States under the State-
specific Retail Leasing Legislation.
For landlord investors, the general returns have decreased
substantially and are usually around 3–5% returns.
5.3 Can a franchisor successfully avoid liability for pre-
contractual misrepresentation by including disclaimer
clauses in the franchise agreement?
No. However, it is a good idea for franchisors to have franchisees
sign a Representation Statement setting out any representations made
prior to signing the Franchise Agreement. If any representation has
been detailed, the franchisor should clarify this with the franchisee.
The Franchise Agreement should also contain an “entire agreement”
provision which states that the Franchise Agreement comprises the
“entire agreement” between the parties. However, these “entire
agreement” clauses offer limited protection.
5.4 Does the law permit class actions to be brought by a
number of allegedly aggrieved claimants and, if so,
are class action waiver clauses enforceable?
The requirements for bringing a class action in Australia vary
between the States. Class action waiver clauses are likely to be
unenforceable in Australia under the Franchise Code and recent
implementation of the Unfair Contracts provisions to be effected on
12 November 2016.
6 Governing Law
6.1 Is there a requirement for franchise documents to be
governed by local law? If not, is there any generally
accepted norm relating to choice of governing law, if
it is not local law?
There is no requirement for franchise documents to be governed by
local law.
6.2 Do the local courts provide a remedy, or will they
enforce orders granted by other countries’ courts,
for interlocutory relief (injunction) against a rogue
franchisee to prevent damage to the brand or misuse
of business-critical confidential information?
Yes, under the Cross Vesting legislation, the Foreign Judgments
Act 1991 and the Foreign Judgments Regulations 1992, the local
courts provide for the procedure and scope of the judgments that can
be enforceable under the statutory regime. Additionally, Australia
is party to the bilateral treaty for the Reciprocal Recognition and
Enforcement of Judgments in Civil and Commercial Matters 1994
with the United Kingdom. However, Australia is not party to the
Hague Convention on Recognition and Enforcement of Foreign
Judgments in Civil and Commercial Matters 1971.
7 Real Estate
7.1 Generally speaking, is there a typical length of term
for a commercial property lease?
Lease terms vary, but are generally 3–5 years long.

Australia
prominent franchise system were underpaying their staff. Although
there is no legislative obligation that imposes on franchisors, there
is proposed legislation through the Fair Work Act and by the Fair
Work Ombudsman that will now impose liability on franchisors
to ensure that their franchisees meet their statutory obligations to
employees. This will apply where the franchisor knew or ought to
have known that the franchisee was underpaying its staff.
Franchisors therefore need to ensure that they have policies,
practices and training to ensure their franchisees meet their
workplace obligations.
10.2 Is there a risk that a franchisor may be held to be
vicariously liable for the acts or omissions of a
franchisee’s employees in the performance of the
franchisee’s franchised business? If so, can anything
be done to mitigate this risk?
It is less likely that a franchisor can be held vicariously liable for
the acts or omissions of their franchisee’s employee; however, there
are occupational health and safety requirements that apply to the
franchisee. Where a franchisor has failed to provide necessary
training and support or is aware there are breaches by the franchisee,
the franchisor and its directors may be found to be vicariously liable.
11 Currency Controls and Taxation
11.1 Are there any restrictions (for example exchange
control restrictions) on the payment of royalties to an
overseas franchisor?
No, there are no restrictions on royalties being paid directly to an
overseas franchisor. There are tax treaties between countries that
apply and an overseas franchisor looking to establish a franchise
system in Australia would need to obtain taxation advice both in
Australia and in its own jurisdiction.
Australian laws control and regulate or permit the control and
regulation of a broad range of payments and transactions involving
non-residents of Australia. Pursuant to a number of exemptions,
authorities and approvals, there are no general restrictions on
transferring funds from Australia or placing funds to the credit of
non-residents of Australia. However, Australian foreign exchange
controls are implemented from time to time against proscribed
countries, entities and persons. At the present time, these are:
a. Withholding taxes in relation to remittances or dividends (to
the extent they are unfranked) and interest payments.
b. The sanctions administered by the RBA in accordance with
the Banking (Foreign Exchange) Regulations 1959:
■ transactions involving the transfer of funds or payments
to, by the order of, or on behalf of:
■ specified supporters of the former government of
the Federal Republic of Yugoslavia (the Milosevic
regime);
■ ministers and senior officials of the Government of
Zimbabwe;
■ certain entities and an individual associated with the
Democratic People’s Republic of Korea; and
■ individuals associated with the Burmese regime,
are prohibited without the specific approval of the RBA.
8 Online Trading
8.1 If an online order for products or request for services
is received from a potential customer located outside
the franchisee’s exclusive territory, can the franchise
agreement impose a binding requirement for the
request to be re-directed to the franchisee for the
territory from which the sales request originated?
The Franchise Code now imposes further obligations of disclosure
on franchisors as follows:
■ Item 12 sets out the information the franchisor must disclose
to a prospect franchisee or franchisee if the franchisee may
make goods or services available online, if the franchisor or
an associate of the franchisor may do so, and if the franchisor
may or is expected to make goods or services available online
in the future.
■ Item 12.5 requires a franchisor to provide details of
arrangements that would affect the franchisee, directly or
indirectly, including agreements with third parties and other
franchisees.
The items seek to promote transparency. Parties should approach
the disclosure mindful of good faith.
The Franchise Agreement may require that a lease on a request
from a customer outside a franchisee’s territory be directed to the
franchisee’s territory, although this is not common.
8.2 Are there any limitations on a franchisor being able
to require a former franchisee to assign local domain
names to the franchisor on the termination or expiry
of the franchise agreement?
No, the end-of-term arrangements on termination or expiry of a
Franchise Agreement generally impose obligations on franchisees
to deliver up phone numbers, customer lists, domain names and
cease use of the franchisor’s confidential information.
9 Termination
9.1 Are there any mandatory local laws that might
override the termination rights that one might
typically expect to see in a franchise agreement?
Under Division 5, Clauses 26 to 29 of the Franchise Code, there are
various events which the Franchise Agreement may be terminated
on with or without notice. The franchisor must comply with the
Code provisions. Additionally, the Unfair Contracts provisions
under the Australian Consumer Law, which comes into effect on 12
November 2016, are applicable to standard form contracts and will
effect clauses that give franchisors the unilateral right to vary terms
of the Agreement.
10 Joint Employer Risk and Vicarious
Liability
10.1 Is there a risk that a franchisor may be regarded as
a joint employer with the franchisee in respect of the
franchisee’s employees? If so, can anything be done
to mitigate this risk?
This issue has recently arisen in Australia where franchisees in a

Australia
14 Ongoing Relationship Issues
14.1 Are there any specific laws regulating the relationship
between franchisor and franchisee once the Franchise
Agreement has been entered into?
The standard laws as governed by the Franchise Code, the
Australian consumer laws and unfair contract provisions are the
specific laws regulating the relationship between the franchisor and
the franchisee.
15 Franchise Renewal
15.1 What disclosure obligations apply in relation to a
renewal of an existing franchise at the end of the
franchise agreement term?
The Franchise Code, as from 1 January 2015, imposes end-of-term
arrangements and obligations on franchisors. The Code requires
franchisors to update their disclosure document within four months
after the end of their financial year. The Code requires a franchisor
to notify a franchisee in writing at least six months before the end
of the term whether the franchisor intends to extend the Franchise
Agreement or enter into a new Franchise Agreement when the term
expires.
In that event, a franchisor must include a statement in the notice to
the effect that the franchisee may request a copy of the Disclosure
Document.
15.2 Is there any overriding right for a franchisee to be
automatically entitled to a renewal or extension of
the franchise agreement at the end of the initial term
irrespective of the wishes of the franchisor not to
renew or extend?
No, unless the Franchise Agreement provides the franchisee a further
term or option, or option to enter into a new agreement once the term
ends. However, the franchisor must give notice in writing to the
franchisee as stated in question 15.1. If the franchisee seeks to extend
the Agreement and the franchisor does not grant the extension, the
Code now provides protection to a franchisee if the franchisor then
wishes to enforce a restraint of trade or non-compete provision.
15.3 Is a franchisee that is refused a renewal or
extension of its franchise agreement entitled to any
compensation or damages as a result of the non-
renewal or refusal to extend?
No; however, under the Franchise Code the franchisee has certain
protections. The protections only apply if:
1. The franchisee has indicated in writing that it wanted to
extend the Agreement on substantially the same terms as
those contained in its current Franchise Agreement.
2. The franchisee was not in breach of theAgreement at the time
it expired.
3. The franchisee had not infringed the franchisor’s intellectual
property or breached its confidentiality obligations during the
term of the Agreement, and either:
a. the franchisee claimed compensation for good will because
the Agreement was not extended and the compensation
given was merely nominal and not genuine compensation
for good will; or
11.2 Are there any mandatory withholding tax
requirements applicable to the payment of royalties
under a trade mark licence or in respect of the
transfer of technology? Can any withholding tax
be avoided by structuring payments due from the
franchisee to the franchisor as a management
services fee rather than a royalty for the use of a trade
mark or technology?
Where royalties are paid to a foreign resident, the amount paid is
subject to a final withholding tax.
A foreign resident can be an individual, company, partnership, trust
or super fund.
Royalties are generally payments made by one person for the use of
rights owned by another person. They may be periodic, irregular or
one-off payments.
Australian payers must withhold amounts from the payments they
make. An Australian payer can be either an Australian resident or
foreign resident with a permanent establishment in Australia.
Franchisors should always seek accounting advice on their financial
model.
11.3 Are there any requirements for financial transactions,
including the payment of franchise fees or royalties,
to be conducted in local currency?
There is no such requirement.
12 Commercial Agency
12.1 Is there a risk that a franchisee might be treated as
the franchisor’s commercial agent? If so, is there
anything that can be done to help mitigate this risk?
This is unlikely as the Franchise Agreement would clearly state the
relationship is that of a franchisor and a franchisee, and that the
franchisee conducts its own independent business using the brand
systems and training supplied by the franchisor and is not an agent
of the franchisor.
13 Good Faith and Fair Dealings
13.1 Is there any overriding requirement for a franchisor
to deal with a franchisee in good faith and to act fairly
in its dealings with franchisees according to some
objective test of fairness and reasonableness?
The Franchise Code, which was amended effective from 1 January
2015. It imposes an obligation on each of the parties to act in
good faith, at the entry, during the course of the relationship and
at termination. The test of good faith remains set by common law.
Under common law, the duty of good faith requires a party to act
reasonably and not exercise their powers arbitrarily or for irrelevant
purpose. While good faith requires a party to have regards to the
rights and interest of the other party, it does not require a party to act
in the interest of the other party.

Australia
16.2 If a franchisee is in breach and the franchise agreement
is terminated by the franchisor, will a “step-in” right
in the franchise agreement (whereby the franchisor
may take over the ownership and management of
the franchised business) be recognised by local law,
and are there any registration requirements or other
formalities that must be complied with to ensure that
such a right will be enforceable?
Yes, these are enforceable contractual rights if they are contained in
the Franchise Agreement.
There are no registration requirements or other formalities;
however, it is likely that the franchisor will need to obtain the
consent of a landlord to exercise its step-in rights. It is for this
reason that many franchisors will hold the head lease and grant a
licence to occupy or sublease to the franchisee, in order that the
franchisor can control the site and its brand in the event of a breach
or termination by the franchisee.
16.3 If the franchise agreement contains a power of
attorney in favour of the franchisor under which it
may complete all necessary formalities required to
complete a franchise migration under pre-emption
or “step-in” rights, will such a power of attorney
be recognised by the courts in the country and be
treated as valid? Are there any registration or other
formalities that must be complied with to ensure that
such a power of attorney will be valid and effective?
Yes, most Franchise Agreements provide power of attorney
provisions in favour of the franchisor; these are contractual rights
and may be relied upon subject to the good faith provisions.
Please note that there are no registration requirements or other
formalities that must be complied with.
b. the Agreement did not allow the franchisee to claim
compensation for good will in the event that it was not
extended.
Whether the compensation offered is genuine will depend on the
circumstances. There is no definition or criteria for “genuine”
compensation set out in the Code.
16 Franchise Migration
16.1 Is a franchisor entitled to impose restrictions on
a franchisee’s freedom to sell, transfer, assign or
otherwise dispose of the franchised business?
Yes, the Franchise Code, Division 4 provides that a franchisee
may request the franchisor’s consent to the transfer of a Franchise
Agreement accompanied by all information that the franchisor
would reasonably require and expect to be given to make an
informed decision.
The franchisor must then advise in writing whether it consents
(subject to any conditions) and if not, provide reasons why not.
The franchisor may withhold consent in certain circumstances
which are set out under Clause 25 (3) of the Code.
If consent is not given within 42 days of the date on which the
request is made by the franchisee, and the date on which the last
of the information requested by the franchisor is provided by the
franchisee, the franchisor is then taken to have given consent and
that consent cannot be revoked.

Australia
Robert Toth
Level 2, 100 Wellington Parade
East Melbourne
Victoria, 3002
Australia
Tel: +61 3 9604 9405
Email: rxt@marshmaher.com.au
URL: www.marshmaher.com.au
We are a boutique Melbourne law practice that offers specialist legal services across a diverse range of commercial areas. We are a six-partner firm,
with a group of experiences and skilled lawyers who service a variety of clients including private and public companies; and acting for international
and foreign companies; as well as families, individual and private clients. We believe our strength is to provide timely, cost-effective tailored advice
to meet our client needs. Our practice areas include:
1) Commercial litigation and insolvency.
2) Franchising, licensing and distribution.
3) Property – leasing and property development.
4) Insurance law and litigation, among other practice areas.
For more information, please visit our website http://marshmaher.com.au/ or contact our office on +61 3 9604 9400.
Robert is an Accredited Business Law Specialist with over 30 years’
expertise in Franchise and Licensing. Robert acts for overseas
companies establishing business operations in Australia and is a
registered Agent and Director for overseas companies. Robert is also
actively involved in dispute resolution and mediation in Franchise and
commercial disputes such as partnership and shareholder buy-outs.
Robert is a member of the Franchise Council of Australia (“FCA”), the
International Franchise Lawyers Association (“IFLA”) and member of
the US Commercial Service. Robert regularly publishes articles online
and in journals in Australia and internationally on Franchise law and
Corporate law.

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