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International..
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Expansion

Still part of the international game plan

Dateline: Buenos Aires, Etc. You didn't misread the dateline. Because these thoughts reflect events occurring in different locations within a compressed period of time, "etc." seemed the appropriate way to describe the source of the observations.

There remains pockets of international economic activity that are insulated from the chaotic economy, and franchising may be one of them.

Within a three-week period in the fall of 2008, international franchising was the subject of intense discussions in three different venues, with different audiences and different sponsors. They included an International Bar Association meeting (all lawyers) in Argentina; an industry conference (all business people) in Las Vegas; and a franchise conference (mixed) in Los Angeles.

Each in its own way was instructive; and, as I'll note in a moment, each had "take home value" (the current catch phrase which has become the Holy Grail of conference organizers). Taken together, though, they raise a larger question: In the midst of a now undeniable worldwide recession, why are franchisors apparently marching straight ahead with plans for cross-border franchising?

In the United States, two generations which have known few moments of true economic adversity are now confronted with the most difficult conditions since the Great Depression. And make no mistake about it: The American problem has grown into a worldwide economic crisis.

So what are all these people doing milling about, talking about recruitment and training and support of foreign franchisees? Don't they read the papers or watch the news? Don't they know the sky is falling?

Well, yes. But something else is at work here as well: The recognition that there are pockets of international economic activity which have attained a degree of insulation from the generalized distress. Is franchising one of them? That remains to be seen, but some careful listening at these three events yielded some clues that it may be:

There is no corner of the globe which is untouched É but no other country is so seized with the sense of impending doom. Perhaps they have simply not yet awakened to the approaching disaster É or perhaps they are simply more accustomed to coping with uncertainty and difficulty than we are.

The credit crunch, originating in imprudent home loans, lies at the heart of the problems in our own economy. It affects franchising directly, principally in the difficulties franchisees are experiencing in financing their expansion. These concerns appear elsewhere in a global economy. But most foreign franchisees and developers (larger, typically, than their domestic counterparts) are less dependent on traditional sources of financing, and more reliant on internal and family-generated sources.

For much of the last decade the dollar has been in the doldrums compared to many other major currencies. While that suppressed the foreign travel of U.S. vacationers, it gave a healthy boost to franchisors' development plans. The unsettled conditions of recent months gave the dollar a temporary boost, but the Federal Reserve Board's startling drop of interest rates to near-zero brought that brief era to an end; and the U.S. is once again the world's bargain basement for goods and services (including franchises).

And a final observation by a number of foreign participants É more muted, more subtle, more tentative, and most assuredly not appearing in any speeches prepared for publication. America's reputation around the world has hovered at an all-time low for most of the last eight years. While that has not had a direct effect on the sales of U.S.-identified businesses, there have been some implications for certain franchises. When terrorists or those who sympathize with them cannot penetrate security around a U.S. embassy or consulate, the default target of choice ("soft" in the current jargon) is a commercial establishment identified with our country. And in today's economy that is likely to be a franchised hotel, restaurant or other place of business. No one is blunt enough to say that the change of administrations alters all that, but this is a pretty clear case of political developments having potentially significant consequences for franchisors operating abroad.

Against that background, what was perhaps the most striking about the discussions in these disparate venues was how É well, ordinary É they were.

Our nearest neighbor, Canada, has seen an increase in the adoption of franchise legislation and an increase in class action legislation as well. Neither trend seems likely to end soon.

Europe has seen no new franchise laws in recent months, but we have seen cases in jurisdictions without franchise-specific legislation reaching results involving allegations of misrepresentations regarding turnover, profits, success and failure which are strikingly similar to those we would have anticipated under U.S. disclosure laws. We've also seen decisions dealing with online sales; non-renewals; purchasing requirements; vicarious liability, and other issues familiar to U.S. franchisors.

Across Asia there continues to be an undercurrent of thought that seems likely to lead to further tinkering with existing franchise laws. Asia has already become, outside the United States, the most regulated franchising environment in the world. Unfortunately, there is little consistency among jurisdictions, with prior disclosure laws widely adopted.

Philip K. Zeidman is a senior partner in the Washington, DC office of DLA Piper US LLP.Ê He is general counsel to the International Franchise Association.

Phil can be reached at Philip.Zeidman@dlapiper.com

In Australia, both legislative and judicial developments have been significant. U.S. franchisors entering that continent for the first time should not rely on guidance which may have been received a few years ago; and even franchisors with existing operations need to be aware of the effect of these developments on their obligations to current franchisees. Recent changes in South Korea bear watching; and, as always - and for the foreseeable future - China remains the most important market, with a regulatory regime to match.

In Argentina, as in certain other Latin American countries, the possible extrapolation of labor laws to protect franchisees in a fashion similar to employees is highlighted by current legislative proposals. Brazil has the fourth largest franchising industry in the world, with 15 percent growth from 2006 to 2007.

Some other notes of interest in Latin America: Mexico now has more than 1,000 franchised systems. In Peru, 55 percent of all of the franchised operations are native. By contrast, 95 percent of the franchises in Panama are foreign.

None of this is show-stopping, or heart-stopping. But that's exactly the point: In most places around the world it's pretty much business as usual. Clearly, that will change somewhat as the reality of the global recession sinks in. But for the moment, international franchising, both cross-border and indigenous, continues to expand at a rather surprising pace.



Franchise Times - February 2009