A Study on the Standard Provisions of International Franchising Contracts and Unfair Trade Acts (국제프랜차이즈계약의 표준조항과 불공정거래행위)
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- Journal of Arbitration Studies
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- v.22 no.3
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- pp.165-185
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- 2012
Franchising has proved over many years to be a successful commercial vehicle for the international distribution of products and services. However, there has long been missing a user-friendly model contract that would reflect the diversity of international franchising contracts. Because the ICC has drafted a model form of international franchising contracts, taking into account the most commonly encountered clauses in franchising agreements, their model could be used as a checklist of the core obligations of a cross-border franchise contract. Because there is no internationally agreed-upon uniform legislation on franchising, parties must rely on national laws and regulations applicable to the international franchise (when such laws and regulations exist) and should therefore very carefully draft stipulations for the legal status of the contract. This study has been intended to cite some provisions for striking a fair balance between the interests of the franchisor and those of the franchisee and for avoiding unfair trade acts in international franchising contracts.
Domestic franchised businesses have been showing relatively fast growth, but the growth is expected to slow down as in those developed countries. In face of this changing market environment, domestic franchisers will have to turn their eyes abroad to achieve sustainable growth. On the other hand, more international franchisors could pursue expanding into the Korean market due to economic or strategic reasons in their home countries. In general, enterprises are faced with several barriers when entering foreign markets by franchising their operation. Issues relating to such entry barriers can be broadly classified into legal and managerial. To begin, international franchising necessitates enterprises to handle various aspects of legal issues. There are no internationally unified rules for franchise agreements as in international goods purchase contracts. This forces franchisors to have deep knowledge of concerned regulations and practices of each of the individual target countries, in particular franchising practices which differ from those of their own countries in terms of rights and obligations of the involved parties. Having regard to this situation, this study reviewed the EU's PEL CAFDC and other domestic and overseas regulations governing franchising. From the results, several contractual obligations were derived that need to be taken into account when handling the issues around the international franchise agreement. In closing this paper mainly having in mind enterprises in various business lines seeking to expand into international franchising, some unmet needs are worth commenting. First, there is an urgent need to establish practical guidelines along with the model agreement addressing the issues of international franchising in the absence of any unified international rules. Second, to meet the first need above, it is needed that the relevant authorities conduct a comprehensive review of the existing franchising regulations available across overseas countries and, based on the results, embark on gathering good common elements in the existing franchising regulations in individual countries, ultimately developing the best possible guidelines and examples.
The purpose of this research is to construct research framework for international franchising based on existing literature and to identify research components in the framework. Franchise can be defined as management styles that allow franchisee use various management assets of franchisor in order to make or sell product or service. It can be divided into product distribution franchise that is designed to sell products and business format franchise that is designed for running it as business whatever its form is. International franchising can be defined as a way of internationalization of franchisor to foreign country by providing its business format or package to franchisee of host country. International franchising is growing fast for last four decades but academic research on this is quite limited. Especially in Korea, research about international franchising is carried out on by case study format with single case or empirical study format with survey based on domestic franchise theory. Therefore, this paper tries to review existing literature on international franchising research, providing research framework, and then stimulating new research on this field. International franchising research components include motives and environmental factors for decision of expanding to international franchising, entrance modes and development plan for international franchising, contracts and management strategy of international franchising, and various performance measures from different perspectives. First, motives of international franchising are fee collection from franchisee. Also it provides easier way to expanding to foreign country. The other motives including increase total sales volume, occupying better strategic position, getting quality resources, and improving efficiency. Environmental factors that facilitating international franchising encompasses economic condition, trend, and legal or political factors in host and/or home countries. In addition, control power and risk management capability of franchisor plays critical role in successful franchising contract. Final decision to enter foreign country via franchising is determined by numerous factors like history, size, growth, competitiveness, management system, bonding capability, industry characteristics of franchisor. After deciding to enter into foreign country, franchisor needs to set entrance modes of international franchising. Within contractual mode, there are master franchising and area developing franchising, licensing, direct franchising, and joint venture. Theories about entrance mode selection contain concepts of efficiency, knowledge-based approach, competence-based approach, agent theory, and governance cost. The next step after entrance decision is operation strategy. Operation strategy starts with selecting a target city and a target country for franchising. In order to finding, screening targets, franchisor needs to collect information about candidates. Critical information includes brand patent, commercial laws, regulations, market conditions, country risk, and industry analysis. After selecting a target city in target country, franchisor needs to select franchisee, in other word, partner. The first important criteria for selecting partners are financial credibility and capability, possession of real estate. And cultural similarity and knowledge about franchisor and/or home country are also recognized as critical criteria. The most important element in operating strategy is legal document between franchisor and franchisee with home and host countries. Terms and conditions in legal documents give objective information about characteristics of franchising agreement for academic research. Legal documents have definitions of terminology, territory and exclusivity, agreement of term, initial fee, continuing fees, clearing currency, and rights about sub-franchising. Also, legal documents could have terms about softer elements like training program and operation manual. And harder elements like law competent court and terms of expiration. Next element in operating strategy is about product and service. Especially for business format franchising, product/service deliverable, benefit communicators, system identifiers (architectural features), and format facilitators are listed for product/service strategic elements. Another important decision on product/service is standardization vs. customization. The rationale behind standardization is cost reduction, efficiency, consistency, image congruence, brand awareness, and competitiveness on price. Also standardization enables large scale R&D and innovative change in management style. Another element in operating strategy is control management. The simple way to control franchise contract is relying on legal terms, contractual control system. There are other control systems, administrative control system and ethical control system. Contractual control system is a coercive source of power, but franchisor usually doesn't want to use legal power since it doesn't help to build up positive relationship. Instead, self-regulation is widely used. Administrative control system uses control mechanism from ordinary work relationship. Its main component is supporting activities to franchisee and communication method. For example, franchisor provides advertising, training, manual, and delivery, then franchisee follows franchisor's direction. Another component is building franchisor's brand power. The last research element is performance factor of international franchising. Performance elements can be divided into franchisor's performance and franchisee's performance. The conceptual performance measures of franchisor are simple but not easy to obtain objectively. They are profit, sale, cost, experience, and brand power. The performance measures of franchisee are mostly about benefits of host country. They contain small business development, promotion of employment, introduction of new business model, and level up technology status. There are indirect benefits, like increase of tax, refinement of corporate citizenship, regional economic clustering, and improvement of international balance. In addition to those, host country gets socio-cultural change other than economic effects. It includes demographic change, social trend, customer value change, social communication, and social globalization. Sometimes it is called as westernization or McDonaldization of society. In addition, the paper reviews on theories that have been frequently applied to international franchising research, such as agent theory, resource-based view, transaction cost theory, organizational learning theory, and international expansion theories. Resource based theory is used in strategic decision based on resources, like decision about entrance and cooperation depending on resources of franchisee and franchisor. Transaction cost theory can be applied in determination of mutual trust or satisfaction of franchising players. Agent theory tries to explain strategic decision for reducing problem caused by utilizing agent, for example research on control system in franchising agreements. Organizational Learning theory is relatively new in franchising research. It assumes organization tries to maximize performance and learning of organization. In addition, Internalization theory advocates strategic decision of direct investment for removing inefficiency of market transaction and is applied in research on terms of contract. And oligopolistic competition theory is used to explain various entry modes for international expansion. Competency theory support strategic decision of utilizing key competitive advantage. Furthermore, research methodologies including qualitative and quantitative methodologies are suggested for more rigorous international franchising research. Quantitative research needs more real data other than survey data which is usually respondent's judgment. In order to verify theory more rigorously, research based on real data is essential. However, real quantitative data is quite hard to get. The qualitative research other than single case study is also highly recommended. Since international franchising has limited number of applications, scientific research based on grounded theory and ethnography study can be used. Scientific case study is differentiated with single case study on its data collection method and analysis method. The key concept is triangulation in measurement, logical coding and comparison. Finally, it provides overall research direction for international franchising after summarizing research trend in Korea. International franchising research in Korea has two different types, one is for studying Korean franchisor going overseas and the other is for Korean franchisee of foreign franchisor. Among research on Korean franchisor, two common patterns are observed. First of all, they usually deal with success story of one franchisor. The other common pattern is that they focus on same industry and country. Therefore, international franchise research needs to extend their focus to broader subjects with scientific research methodology as well as development of new theory.
Purpose - The purpose of this paper is to find the issues associated with international expansion of Korean franchisors going international and suggest lessons of proposition to reduce the failure risk in international expansion of franchise systems. Research design, data, and methodology - This is the exploratory study and structured to review (1) background to motivate the expansion of franchisors towards international market, (2) the status of Korean franchisors going international in recent years, (3) issues, (4) lessons learned from the experiences, and (5) summary. Secondary sources were reviewed to get necessary data and statistics. Results - Master franchising was the most preferred entry mode for Korean franchisors. Franchisors must understand the expenses to be incurred as well as revenues associated with international activities. Brand is the core asset of franchisor as a differentiation strategy. Conclusions - The paper indicates that even if international franchising is the unique business model for franchisors to use in little or least risk compared with other international entry modes, it needs a set of complex capabilities that much differ from those in domestic and franchisors should take a step approach to the international market with the planned and long term perspective.
In recent years in China, corresponding to a shift in consumption pattern from household basics to greater expenditure on quality of life, new franchising opportunities arise. Although the franchising prospect in China is promising, Korean companies aiming at franchising into China need to be aware of the legal framework for commercial franchise in China as this will have direct impact on their business expansion. Where franchising activities involve trade mark licence, Chinese Franchise Regulations require such trade mark licence agreement to be regulated in accordance with the relevant provisions of the Chinese Trademark Law. Furthermore where one party fails to perform his obligation and it impacts purpose of the contract seriously, the other party could avoid the contract in accordance with the relevant provisions of the Chinese Contract Law. To launch franchising business successfully in China, Korean companies do market research sufficiently before they may commence franchise business. Korean franchisor must register with local authorities in China by own name, and make Chinese partner take charge of management of the distribution network and invitation of franchisee partners.
Franchising is one of the fastest growing types of business. It is already popular and well-known in the U.S., and has been growing in many other countries including Korea. Furthermore, many Korean franchising companies have expanded their business overseas actively. According to the data by the Ministry of Industry and Resource, 82 companies out of a sample of 500 franchising companies are already operating in many foreign countries and 48% of them have started their foreign business since 2006. This clearly indicates the fast growing current trend of foreign operation by Korean franchising companies. In spite of the fast growing trend of foreign expansion in the industry, academic research on internationalization of franchising companies is extremely difficult to find. Accordingly, academic research on the issue is necessary and urgent in Korea. Among the various research questions on internationalization of franchising business, this study intends to investigate the difference in organizational factors between the franchising companies doing foreign operation and those doing business only domestically. More specifically, this research has the following purposes. First, considering the lack of theoretical basis of previous studies, resource-based theory and agency theory are employed as the theoretical bases. Second, this study explains the difference in internationalization based on organizational factors such as company size, history and growth rate. Third, the five hypotheses regarding the difference in organizational factors are presented and tested empirically, which is the first attempt in the area of this topic. Finally, the study attempts to clarify the conflicting implications among theories regarding some organizational factos such as growth rate. As the theoretical background, resource-based theory and agency theory are discussed. According to resource-based theory, a firm can grow continuously when it has competence and resource, and also the ability to develop them. The competence and resource can include capital, human resource, management skill, market information, ability to manage risk, etc. Meanwhile, agency theory views the relationship between franchisor and franchisee as an agency relationship. In agency theory, bonding capability and monitoring capability are the two key factors which promote internationalization of franchising companies. Based on the two theories, a conceptual model is designed. The model consists of two groups of variables. One is organizational factors including size, history, growth rate, price bonding and geographic dispersion. The other is whether a franchising company is operating overseas or not. We developed the following five research hypotheses basically describing the relationship between organizational factors and internationalization of franchising companies. H1: The size of franchising companies operating overseas is larger than that of franchising companies operating domestically. H2: The history of franchising companies operating overseas is longer than that of franchising companies operating domestically. H3: The growth rate of franchising companies operating overseas is higher than that of franchising companies operating domestically. H4: The price bonding of franchising companies operating overseas is higher than that of franchising companies operating domestically. H5: The geographic dispersion of franchising companies operating overseas is wider than that of franchising companies operating domestically. Data for the analyses are obtained from 2005 Korea Franchise Survey data co-generated by Ministry of Industry and Resource, GS1 Korea, and Korea Franchise Association. Out of 2,804 population companies, 2,489 companies are excluded for various reasons and 315 companies are selected as the final sample. Prior to hypotheses tests, validity and reliability of the measures of size, history, growth rate and price bonding are examined for further analyses. Geographic dispersion is not validated since it is measured using nominal data. A series of independent sample T-tests is used to find out whether there exists any significant difference between the companies internationalized and those operating only domestically for each organizational factor. Among the five factors, size and geographic dispersion show significant difference, growth rate and price bonding do not reveal any difference and, finally, history factor shows conflicting results in the difference depending on how to measure it.