The dissertation contains a comprehensive analysis of theoretical and practical issues of regulation of international franchising relations.
In the dissertation the historical prerequisites of origin and modern development of franchising (international franchising) are analyzed, the process of formation of legal regulation of franchising agreement in general and agreement of international franchising in particular in legal systems of common and continental law is investigated.
The detailed analysis of the legal nature of franchising in private international law has revealed the characteristic features of international franchising relations.
The key part of the study is the detailed analysis of the peculiarities of the formation and functioning of international franchise relations.
The paper argues for the need to distinguish 3 stages of concluding the international franchise agreement: 1) requesting with the proposal by the franchisee and disclosing information about the franchise by the franchisor; 2) formation of the content of the contract by the franchisor and the franchisee; 3) concluding the international franchise agreement.
The dissertation provides the legal definition of the concept of the international franchise agreement according to which it is a foreign economic agreement (contract), the parties of which - the franchisor and franchisees - are related to the legal systems of two or more states by the law chosen by them as applicable in the contract or law determined by the legislator in the absence of a choice of law by the parties of the contract, or the law which has the closest connection with the contract, agreed on the paid transfer of the complex of exclusive rights to the objects of intellectual property and objects of the individualisation of goods and services of right holder, including protected and non-protected objects of intellectual property, for a certain period of time to increase the franchisor's presence in the market of another country by selling the goods / providing services / producing the goods by the technology of the franchisor under the terms specified in the contract.
The study of types and classifications of franchises and franchising, led to the classification of essential conditions of the international franchise agreement as follows: 1) essential conditions inherent in all foreign economic agreements (contracts) (subject of the contract, payment terms, the law of the country applicable to the contract, protective reservations and protection , the liability of the parties, the term of the agreement, etc.); 2) qualifying essential conditions that distinguish the international franchise agreement from similar agreements (subject matter of the contract, fundamental rights and obligations of the parties (contractual and post-contractual), on the franchisor's assistance to franchisee in organizing and conducting business, peculiarities of payment to the franchisor, control quality of goods (works, services), privacy, restriction of competition, pre-emptive right of the franchisee to conclude a new contract, obligations of the parties after the termination / termination of the contract), 3) additional essential conditions, arising out of the type of international franchising contract (exclusivity, the definition of territory).
The analysis of substantive legal regulation of international franchising of different countries has made it possible to find out that the doctrine and legislation in the field of legal regulation of franchise relations today are characterized by its fragmentation, the actual absence of special legal acts (franchise laws), instrumental filling of already existing acts with the constructions of unified substantive legal rules governing franchise relations (international franchising). In such circumstances, the parties shall refer to acts, model contracts, recommendations adopted by international economic and other non-governmental organizations, associations, federations, which reflect the general principles of law or custom.
On the basis of a careful analysis of the conflict-of-law regulation of international franchising of different countries of the world, it is substantiated the feasibility of introducing in the legislation of Ukraine a special conflict of law regarding the law applicable to the agreement in the absence of the consent of the parties on the choice of law, and therefore proposed to amend Article 44 The Law of Ukraine "On Private International Law" paragraph 24 in the following wording: "franchisees - under a franchise agreement".
