the relevance of dispute resolution mechanisms for the franchising industry by tan tee jim, s.c....
TRANSCRIPT
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THE RELEVANCE OF DISPUTE RESOLUTION MECHANISMS FOR THE FRANCHISING
INDUSTRY
by
Tan Tee Jim, S.C.Senior Partner,Head, IP & IT,
Lee & Lee
Kuala Lumpur, July 2008
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Typical Dispute Areas
Royalty payments Use of intellectual property rights Franchisee not adhering to operating
protocol Franchisee engaging in competing business Claims of misrepresentation Training Support
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Case Examples
Go Go Delicacy Pte Ltd v Carona Holdings Pte Ltd [2008] 1 SLR 161 Franchise agreement for frankfurters called
“GoGo franks” Sued for breach of franchise agreement
and for spoilt/rotting food supplies Interlocutory application
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Case Examples
Telestop Pte Ltd v Telecom Equipment Pte Ltd [2004] SGHC 267 Franchise agreement for operation of
“SingTel” mobile phone shops in 1993 Disagreements and unhappiness arose Franchisor refused to allow franchisee to
relocate loss-making shop Franchisor started competing with franchisee Matter only resolved by court judgment after
6 years
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Relevance of Dispute Resolution Mechanisms
Franchise agreements are complex agreements that often have a long duration
Disputes may arise several years into agreement involving un-contemplated matters
Difference in bargaining power usually places franchisees at a disadvantage
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Dispute Resolution
Litigation Arbitration Mediation
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Remedies
Damages/Account of Profits Injunction Search orders Delivery up Costs
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Litigation
Substantial preparatory work, time and effort
Delays Costly Almost inevitably leads to irretrievable
breakdown of relationship
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Alternative Dispute Resolution Mechanisms
Because franchisor and franchisee are bound by contract, it is possible to contract for dispute resolution by alternative means
Arbitration Mediation
Party control and autonomy
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Relevance of Dispute Resolution Mechanisms
Reduces uncertainty Easier to ‘price’ risks involved when
entering into franchise Achieving a commercially sensible
solution for all parties concerned without irretrievably breaking down the relationship between franchisor and franchisee
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Arbitration
Arbitration Litigation
•Private proceedings•May be adjudicated by experts in the field•Ease of international enforcement
•Public proceedings•Adjudicated by a judge•Difficulty in enforcing foreign judgments
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Arbitration
Characteristics
Private proceedings, usually behind closed doors Useful if franchise involves trade secrets /know
how Parties can appoint a sole arbitrator, or a
panel of arbitrators Parties know who will resolve their dispute
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Arbitration
Characteristics
Arbitrator can be an expert in the field Helpful if area is technical in nature or requires
special knowledge In certain situations, arbitration award may
be enforced in country where loser’s assets are situated Useful if dispute involves cross-border elements
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Arbitration
However, arbitration is not necessarily cheaper than litigation in the courts
Arbitrators’ and counsels’ fees have to be paid
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Arbitration
Requirements
Arbitration clause/agreement in writing signed by parties or contained in exchange of letters;
Parties undertake to submit disputes arising from the agreement to arbitration
Choice of arbitrator(s)
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Arbitration
Requirements
Choice of governing law and applicable rules of arbitration
Choice of arbitration institution (ICC/AAA/CIETAC / LCIA / SIAC)
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Arbitration
Typical arbitration clause
“Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in [ country ] in accordance with the arbitration rules of [ arbitration institution ] for the time being in force, which rules are deemed to be incorporated by reference in this clause.“
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Mediation
Mediation Litigation
•Co-operative•Quick•Problem-solving•Inexpensive•Private
•Confrontational•Takes time•Rights-determining•Expensive•No guarantee of confidentiality
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Mediation
Characteristics Conciliatory, not adversarial, process Win-win situation sought Intended to achieve a lasting solution to
disputes Parties appoint 3rd party to serve as a mediator
Mediator can be a person with good knowledge of the business
Mediator’s duty is to facilitate a solution, not to impose his decision upon the parties
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Mediation
Control over outcome Parties arrive own decision with help from
the mediator No risk of adverse or unexpected decision
being imposed upon the parties Allows parties to evaluate strength of each
other’s cases before deciding whether to proceed further
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Mediation
Saves “face” Mediator does not decide who is right and
who is wrong Mediation is “forward-looking”. Focuses on
practical solutions to the problem at hand
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Mediation
Confidentiality Mediation can take place behind closed
doors No need to address factual issues in open
court Trade secrets will not be divulged
Saves costs Informal procedure Can be resolved within a day
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Mediation
Franchising agreements are long term agreements Franchisor expends substantial resources
creating the system Franchisee expends substantial resources
building infrastructure & receiving training in the system
Thus, it is in both parties’interests to ensure that relationship does not break down
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Mediation
Typical mediation clause
“All disputes, controversies or differences arising out of or in connection with this agreement shall first be submitted for resolution by mediation by a single mediator to be jointly appointed by the parties. The parties agree to participate in the mediation in good faith and undertake to abide by the terms of any settlement reached.“
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Dispute – often painful and expensive
Be wary of disputed areas Seek appropriate solutions through
litigation, arbitration or mediation
Conclusion