Open Access Research Article
ARBITRATION IN FRANCHISE SYSTEM: APPLIED ARBITRATION
Published Paper
Article Details
ARBITRATION IN FRANCHISE SYSTEM:
APPLIED ARBITRATION
AUTHORED BY - PROF. DEEP KAPADIA
Abstract
Franchise business is booming not
only in India, but across globe. It is evident fact that $55000 crore businesses
are income of franchisee in India, and that too only franchisee contractual
income, and hardly royalty income is caught in this figure.
It is necessary to harness such
rapidly growing concept and many countries have even formed law and soon India
will be reaching the lane of franchisee law, but currently it works on
commercial law system. It’s mandate to have arbitration clause in Franchisee
contract. But, does arbitration rules suffice when the dispute rises. Recently
Singapore high court was pro-arbitration in franchisee contracts
This papers aims in two directions:
1. Arbitration
in Franchisees, for which we analyses
1. What is franchisee
2. Franchisee differing from commercial
contracts and process
3. Franchisee Qualifying for
Arbitration- Need of One more Industry specific Rules
4. Types of disputes in franchisee
5. Arbitration backfires to franchisee,
in reference to Brazilian Law
2. Applied
Arbitration-
??????????????????????????????????????????
i.e. we cannot remove or change the
nature of substance, as it’s nature is soul.
So, we need to understand that every
industry has it’s own nature, and there dispute resolution must depend on such
industry nature.
This aspect is trying to create a
different view. It suggests that by making the arbitration industry specific, it
will pile up the rules and law; complexify the system and reduce the scope of
practioners. So, the arbitration instead of moving towards industry specific
arbitration must turn itself to “Applied arbitration”.
Applied Arbitration means that common
law of arbitration will remain same, with certain advances to accommodate
‘various types of industry’, and applied part means that arbitration will
consider expert aspect of the industry.
IT may seem it is old wine in new
bottle, but it is existential approach to law, bring the law to simplified,
common and uniform process catering varities of industry.
This paper aims to clarify the clouds
of industry specific law of Franchisee considering Indian conditions,
Singapore, Brazil and other laws working on various disputes on
franchisees.
Key words- Franchisee agreement and
Arbitration; Arbitration analysis in Franchisee; franchise law; Applied
Arbitration law, disputes in franchisee and way to solve it
Best
progress was made when every contract was referred to arbitration before court
conflicts. The process which is pocket friendly, reliving and quick to heal.
Arbitration is one of the finest
device law for fastest resolving disputes which is based on natural justice.
And that is why it is most adore aspect of commercial dispute resolution.
This paper is aiming to apply the
arbitration in ‘Franchisee system’. Franchisee system is most blooming system
of business, it is said in 2021 report of ‘Marketing White book’ only in India
it covers official transaction $ 55,000 crore. This figure is only for buying
and selling franchisee only. Also, the global reports state that in 2023 it is growing;
out of every 7 business 1 is converting into franchisee system. It has employed
approximately 19 million people across the globe. And made numerous people earn
opportunity through ‘experience way of businesses. Today only 30 countries have
adopted the franchisee laws; India is also in the race of applying the act but
yet in India and other countries Franchisee is considered just as an agreement.
But, fact remains that franchisee is wider concept than agreement/ contract, it
involve multiple law and it need to be handle very delicately and different
way, and hence this paper come to rescue.
It is necessary to harness such
rapidly growing concept and many countries have even formed law and soon India
will be reaching the lane of franchisee law, but currently it works on
commercial law system; though certain laws like Finance Act 1999, Income tax
Act etc. do use the term franchisee to understand the tax liability or
financial liability over the business. It’s mandate to have arbitration clause
in Franchisee contract. But, does arbitration rules suffice when the dispute
rises. Recently Singapore high court was pro-arbitration in franchisee
contracts[1]
My attempt is very simple and works
on the notion of existentialism and Indian scripture and saying that needed
thought in today’s time. This paper will be leading to show 2 wide angle
answers:
a) Arbitration application in
Franchisee system
b) Instead of using Industry Specific
as term, we need to replace/say ‘Applied arbitration’
To begin with first part of applying
the arbitration in franchisee system is divided in 5 parts viz.:
1. What is franchisee
2. Franchisee differing from commercial
contracts and process
3. Franchisee Qualifying for
Arbitration- Need of One more Industry specific Rules
4. Types of disputes in franchisee
5. Arbitration backfires to franchisee,
in reference to Brazilian Law
Part I-
Applying Arbitration in Franchisee
1. What is Franchise?
Before we enter in the
core part of arbitration to be applied in franchisee we need to understand what
exactly is this franchise. Franchise term is not new in recent trends; we are
seeing across the globe many franchise like Dominoes, Mac Donald etc.
Franchisee definition in India
can be seen in the Finance act, 1999[2] Sec.
32 mentions the franchises and its tax liability and tries to define the
states, a "franchise" is an agreement that allows someone to work
with a franchisor to sell or make stuff, offer services, or run a business.[3]
This definition seems
good for taxation wherein Act is mentioning the tax to be paid to state and not
to center in certain aspect. We can also quote the definition of a franchise
according to the Brazilian Franchise Law, Article 1, BFL, which states, “a
franchise is a business model in which the franchisor authorizes the franchisee
to use the franchisor’s Intellectual Property assets, including, but not
limited to, the right of production of, or the right to produce or distribute,
in whole or in part, products or services, and the right to use, by direct or
indirect means, the methods and systems of implementing and managing the
business or operating system developed by, or under the control of, the
franchisor.”[4]
For me Franchisee can be
defined as, “Commercial relation between two or more parties termed as
franchisor and franchisee, wherein the experienced or brand party is granting
the permission to use the Intellectual property, product/ services, pattern of
the displays and interior, operation model/s, apps, website, internet and
offline marketing strategy and designs, any other adoptable features, with
sharing same unique selling points and also guide and train the franchisee
(buying) party keeping certain trade secrets and control in franchisor’s
management, and gain one time license granting fees and regular base decided
share as royalty, giving option to maintain common or different bank account,
giving special rights either on geographical marking or business competition
marking”.
2. Franchisee is different from
Commercial business, licensing and process.
Before entering in Arbitration
for franchisee we also need to understand that why and how franchisee systems
differ from other commercial processes or licensing processes, as if then only
we can relate that we really need the arbitration process. If Franchisee is
same as commercial business then we do not need to specially mention franchise
as ‘one more industry’ and create new industry specific arbitration. So, let’s
distinguish between Franchisee with commercial business and licensing process.
Difference between Franchisee and commercial nature of business:
1. Franchisee business is between
franchisor and franchisee, and what is given is Franchise, while commercial is
between partners, directors, companies, associate or two persons may be for one
or more transaction.
2. Franchisee works on one time grant fees and regular royalty
fees or share, while commercial are transaction value like purchase value
or profit and loss shares.
3. In franchise, the franchisee is de
facto owner of the business and franchisor is de jure owner of the business,
while in commercial all the parties are de-facto as well as de-jure.
4. Franchisor is generally supervising or controlling the business
of franchise; in commercial such controls are divided between both the parties.
5. In franchisee each time the case is,
it works on other person money i.e. on franchisee payments and investment,
while commercial it is not always the case there may be investor or sleeping
partner but it in remaining cases it is always shared by the parties.
6. Franchisee is just involved in giving
the rights of IPR, services/ product. Operation systems and such other things
including training and supports, in commercial it is both the parties are
involved and function together.
7. In franchise system risk is always to
the franchisee buyer and not to the franchisor, but in commercial risk is
divided.
8. Very important aspect franchisee
agreements are adhesion contract
though the function is of franchisee. In other words all the terms are given by
the franchisor and it must be accepted in TOTO. Also, the terms are of
franchisor but it has to be followed and executed by the franchisee. Whereas in
commercial both parties have option to go on mutual terms.
9. As China is says franchisee is one by two law i.e. develop and run one
successful and others follow your path by adopting your branch by their own
money. But, commercial can be even new start up and always by mutual consents.
10. Franchisee involve 14 laws to grant
franchisee viz. Competition act, Consumer Act, Banking act, IPR act, NDA,
Arbitration law, taxation law, transfer of property law, labour laws, company
laws, Information technology laws, Licensing, Foreign exchange management laws
and Bankruptcy law
Difference between Franchisee and licensing:
1. Licensing is granting the right to
use the product or service for some payments or any other considerations, while
franchise is granting right for entire business in geographical limits and not
just product or service.
2. Licensing is granting permission by
certain authority or party who has acquired such intellectual or other rights
of granting, while franchisee is franchisor who may be proprietor or company
has right to not only give permission, rather give entire business ownership of
particular territorial area to the franchisee.
3. In licensing the name of the product
or name of the business agency can be different, while in franchisee name of
the business, logo and all other component are same in every place.
This evidently shows that Franchising business is quite apart
from any other commercial transactions or procedure, and even it cannot be
compared with licensing. So, it lead me to the conclusion that franchisee need
a separate attention.
3. Franchisee
Qualifying for Arbitration- Need of One more Industry specific Rules
It seems to be fancy
title, but it contention are very much standard that can franchisee agreement
adopt arbitration proceeding and if yes then will it be considered industry
specific and need special rules to administer franchisee dispute resolutions.
Can Franchisee agreement go for arbitration?
The Answer to this
question, can be simply deduce from UNICTRAL Model Law which implies that any
parties who are capable or in contract of any type written, oral or implied can
opt for the arbitration techniques.[5]
Since Franchisee is
arising out of the contract.
Franchising agreement
qualify for the arbitration.
But, it’s not simple as
the franchisee agreement is adhesion contract, it rises one more RED CARD that
the agreement is designed by franchisor and mostly gaining his betterment and
so he can write boldly that in dispute matter party has to go for the
arbitration. And it Give a sting
1. It means arbitrator in agreement is
as per the franchisor
2. Jurisdiction is as per franchisor
3. Dispute issues are as per the
franchisor
Herein Brazilian thinkers
like Thiago Marinho Nunes and Gilberto Giusti tries to say that clause of
arbitration in Franchisee agreement seems to be ‘unnecessary’.[6] It
is looking like backfire in point number 5 we will discuss this in brief. But
here it has simple answer that Franchisee law must strictly adhere to
arbitration law, stating that arbitration method must be approached with Unictral
model or Countries Arbitration Law, where adhering party has scope to raise the
curtain and ask the justice. We must never forget the Basic of arbitration is
‘Natural Justice’ and not mere temporary solution to dispute.
Finally it seems to
conclude on the above to paragraph considering the Rosemar case and it's also a
dispute between Amazon (NV) Investment Holdings Inc., against Future Retail
Ltd. as franchise agreements are pro-arbitration agreements. And it need
special attention.
Need of industry specific
Arbitration for franchisee:
Being rooted from Indian philosophy will like to state few aphorisms-
???????????? ?????????
i.e. every substance (or
subject in this matter) nature is revealed by its character, attribute or
properties which it belongs.[7]
??????????????????????????????????????????
i.e. we cannot remove or change the
nature of substance, as its nature is soul.[8]
One need to understand
that every industry has its own nature, and there dispute resolution must
depend on such industry nature.
So, do franchisees are
special commercial relation, and to tackle its dispute one need to make it
industry specific.
Why Industry Specific
Rules in Franchisee can be elaborated in following topics:
1. Experienced: An experience arbitrator
in the field of franchisee can understand the issues, given in the franchisee.
He can understand the scope shown was real misrepresentation or has being error
in application and then the solution can be justified.
2. Regulations and License: Number of
time we are not aware about some minor difference in the licensing process and
again the question raise which cannot be resolve by ordinary law knower, it
needs a special vision. For example case of ‘packing license’ for white
labeling and manufacturing.
3. Distinguish between misunderstanding
and misrepresentation: party perception changes and the concept of
misrepresentation turns to misunderstanding like in case of Pharmacy companies
asking for survey and declaring the survey to be unauthentic or improper.
4. Predictability: Industry specific
arbitrator not only can understand the dispute, but also understand the future
of the product and service. Like in case of Kangen water replica.
5. Quick resolution: main reason to sort
to arbitration is cost effective and quick solutions, but non-industry specific
arbitrator and rule will take time to understand the crux of the problem and
resolving them will be a real issue. Business is there to grown and to educate
the other, specially arbitrator from whom we seek solution.
6. Customized Solutions:
Industry-specific arbitrators can craft solutions that align with the norms and
practices of the franchise industry. They are better positioned to suggest
remedies that are relevant and effective for the particular challenges faced by
the franchisor and franchisee.
7. Credibility: Having arbitrators with
industry-specific knowledge adds credibility to the arbitration process. Both
parties are more likely to trust the decisions and recommendations of
arbitrators who are well-versed in the industry's intricacies.
8. Specialized Rules: Majority of the
countries are now ‘economic choice freedom’ countries. So, everyone has right
to choose their own means and way of earning. And this give rise to
specifically need to device a special law
9. Confidentiality: In many cases,
industry-specific arbitrators are more likely to understand the sensitive
nature of certain information in the franchise sector. This understanding can
lead to better protection of confidential business information during the
arbitration process.
Rules of Franchisee–
World is moving toward specialization, and so do our law on franchisee must
move ahead and for that we need following quick amendment.
1. Arbitrator Qualifications: Basic
qualification for franchisee law can be analyzed as Legal qualification to be
arbitrator + Experience in consulting franchisee.
2. Confidentiality: need to make this
clause stronger as franchisee performances are related to future business also
after this problem both parties will continue business and taking their name
openly may cause the harm to their business.
3. Expedited Procedures: Consider
implementing expedited arbitration procedures for smaller disputes that require
swift resolution. Franchise-related issues often need to be addressed promptly
to prevent disruptions in business operations understand the emergency
resolution situation, but always considered the case which states that after
winning the case also, that emergency adoption of award may inflict disaster.
4. Expert Witnesses: Address the
possibility of involving industry experts as witnesses or advisors during the
arbitration process. This can enhance the understanding of complex franchise-specific
matters.
5. Industry-Specific Standards: Allow
arbitrators to consider industry-specific standards, guidelines, and practices
when making decisions. This can help ensure that rulings are in line with the
prevailing norms of the franchise sector.
6. Industry-Specific Remedies: Provide
arbitrators with the authority to recommend remedies that are commonly used and
effective within the franchise industry. This might include options like
specific performance, injunctive relief, or compensation mechanisms.
7. Injunctive Relief: Consider including
provisions for injunctive relief in cases where franchisee actions could lead
to irreparable harm to the franchisor's brand or business.
8. Costs and Fees: Address how
arbitration costs and fees will be allocated between the parties. In some
cases, it might be beneficial to establish a fee structure that considers the
unique financial dynamics of the franchise industry.
9. Choice of Jurisdiction: Determine the
applicable law and the venue for arbitration based on the franchising
industry's international or regional dynamics.
10. Appeals: Specify whether appeals are
allowed and under what conditions. Given the desire for finality in
arbitration, the rules regarding appeals should be clear and limited
4. Types of disputes in
franchisee: resolving plausibility issues
Most interesting aspect
about arbitration is finding and framing the disputes and its clause. These
topic being vast, so we will limit with few topics; to understand the
plausibility of the resolving franchisee dispute by the arbitration.
4. One Plus two v/s 0 + 4: This not any
numerical problem, rather it is the way wherein many franchisee work. One plus
two is the concept introduce in lieu of franchisee in China, according to their
strategy if any one , establishes one business successfully can add more shop
on other’s fund as one plus two concept to which other countries call as
franchisee. But, interesting fact is many countries especially what we saw in
India people plan the franchisee as 0 plus 4. Let me take an example ‘A’
company get inspire by the ‘Kangen’ water alkaline water medical filters they
develop 3 types of the replica of filter as Indian made. Take certain financer
procure the raw material stuff and build a plan to sell the franchisee of shop
type, managerial type, distributor type and over that of service center. This
gives a very complicated problem that the sales operation and acquisition
proposition are very difficult to estimate due to not a single thing is
existing for which sell is occurring, and then if any such franchisee get
existence then dispute may arise out of 1) quantum of income which was
expected, 2) the process of marketing is inappropriate, 3) POS, acquisition or
logistic issue or4) payment division are inappropriate etc.
5. Early termination of tenure- due to
income confusion: Many franchisees starts but are not happy with output, just
because they fill its insufficient income. Let me take up a case of A burger
company of Pune a successful run in Pune, encourage him to give 2 outlets in
Mumbai. For developing such franchisee, party takes a short loan. Now on
commencement of such shop, the shop earns 11 to 12 lakh rupees per month. But
unfortunately 5 to 6 lakh is maintenance, expenses and raw material 3 to 4 lakh
is loan repayment and pending amount is getting shared between 2 partners +
royalty of the franchisor. Now, the Franchisee thinks we earn so less. Can this
be the real reason of the back-out from contract, and such cases must be
handled with care and experience.
6. Early termination to tenure- due to
income increase- Another reason to move out prematurely is to realize that by
taking the franchisee we are earning less instead that if we are independent we
can earn more. We have a supermarket client who is with reputed brand, he first
opt out for certain brands like HUL, Cadbury etc. later he learns in other
product also we can earn considerable is we do it directly, and so he is
offering the other local brand to partner with him and earn profitability.
7. Insufficient Training and hand
holding: One of the main purposes of franchisee is getting the professional
training and reduction of cash burning issues. But certain franchisee has
insufficient knowledge or sources to train the franchisee and its staff. But,
it’s very subjective question that training is sufficient or hand holding is
sufficient or insufficient and such dispute need skilled or experienced person
and special understanding to resolve the conflict.
8. Emergency Resolution: When parties
approach for arbitration they have acceptance of quick and fair resolution of
dispute. In commercial and so do in Franchisee the meter of expenses are always
on, so party has to resolve it quickly and party also emphasis on quick closure
of arbitration, but this is again a difficult task.
In CVG versus CVH, the High Court
took a broad view on the international arbitration law, finding that the
definition of 'arbitral tribunal' in section 2(1) would apply to 3rd
part of the law in section 27(1). However, the High Court was quick to
challenge the enforceability of emergency award, claiming that it breached
natural justice because the Respondent couldn't present its case in relation to
some of the submissions Claimant made late after the hearing completion. In
this case tribunal requested to keep alternate prayer ready, incase of
rejection of earlier prayer.[9]
The arbitral award was
granted on the basis of the alternative prayer given by the Claimant at the post
hearing stage. The High Court considered the parties’ submissions and its own
contemplation that the decision in the case would be in respect of new cases in
which the Claimant dealt with the treatment of the agreement’s status and
prayer – thus adhering to the requirements of the Act’s ‘refusal of
enforcement’ section (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12) (13) (13).[10]
9. Marketing, Branding and sales
techniques: Another reason to go in franchisee is that franchisee is
experienced in marketing, branding or any other such facilities, but thing
turns table down. Let me explain you the best way of marketing medicine is
doing survey of people around, we also establish one such medical shop and help
them to do survey as per the policy of the company, but then company is telling
that survey is insufficient and detail are Improper so losses are occurring,
which is again like passing the parcel or allegation game, but here dispute
handling is true skills as all seems that one party is true,
10. Territory Dispute: Any person who
buys franchisee has to be cautious, as wrong selection of place may also cause
us worst as decided.
11. Applied Arbitration
Instead of terming and
entering into bundles of new pages, we can call it Applied arbitration and same
law but with different implications.
5. Arbitration
backfires to franchisee, in reference to Brazilian Law
This part is very
interesting aspect, a case study based on Brazilian Franchise law and its view
over the arbitration for the franchisee.
Adhesion contract an
approach issues: Since one of the party makes the agreements and other has to
take it p in TOTO, it is difficult by recessive party to approach for
arbitration as such party is always in vulnerable situation, and dominant party
will strike of all reason opposing them. In such case vulnerable party is
always facing the problem of not only of losses, but also has doubts on
standing for arbitration method.
On inclusion of Article
7(1) to the "Brazil Franchise Law" is considered unnecessary by Brazilian lawyers such as Thiago Marinho, Nunes and
Gilberto Giusti. According to Giusti, the new provision could have a backfire effect on Brazilian arbitration
in general, meaning that the present and prevailing legal text of the Brazilian
Arbitration Act does not need to be ratified in subsequent statutes at all
times, which could lead to absurd
interpretations such as the use of arbitration to settle certain disputes possibly
when permitted by the relevant legal statute.[11]
According to Article 4 of Brazil's
Arbitration Act (BAA), an adhesion contract (contracts in which the parties did
not have the opportunity to present their terms of contract) contains arbitration
clause. This clause is only enforceable if the parties take the necessary steps
to begin an arbitration proceeding, or if the parties agree to the initiation
of an arbitration proceeding, provided that the provision is attached in a
written form, with the parties' signature or a special approval for the
provision.[12]
In the light of that provision, in
2016, Brazil’s Superior Court ruled that: Franchise agreements are adhesion
contracts Arbitration clauses inserted into franchise agreements without the
franchisee’s consent (in attached written form or in bold type) are invalid.
This ruling is contrary to the principle of “Kommetenz-Kompetenz”.[13]
The following is an
analysis of possible consequences of the new franchise Law in relation to the
above-mentioned case-law: · “The Superior Court is likely to recognize the
validity of arbitration clauses in a franchising agreement even if the
franchising agreement is considered to be an attachment contract,” according to
the authors, Paula Mena (Barreto), Vinícius (Pereira), Felipe (Hermanny) and
Kate Brown (DeVejar).[14]
The Appellate Court in São Paulo
upheld the decision to make arbitration the new standard for franchisee
contracts, citing the following arguments:[15]
1. The purpose of Article 4 (2) is to
alert the “victim” in the case of an asymmetrical relationship. This means that
the formal requirements must be justified by the fact that there is an
asymmetrical relationship between the parties, in addition to the adhesion character
of the contract.;[16]
2. All business contracts are considered
to be ‘symmetrical’, meaning that the ‘vulnerable party’ bears the burden of
proving that there is an imbalance in the relationship between the parties. In
the case of a franchise contract, since it is of an entrepreneurial nature, the
burden of proving there is an imbalance between the parties falls on the
claimant (who claims to be in a vulnerable position);[17]
3. The appellants have failed to
demonstrate that the relationship between the parties is unbalanced, and the franchiser’s use of pre-determined clauses in
the contract that does not prove contradictory. Thus, the formal needs laid
down in Art. 4(2) are not applicable to arbitration clause at issue.[18]
The sentence also
confirms the application of the principle of ‘competence-competence’ as set out
in the BAA’s Art. 8, that denied the Court of First Instance, the power to
determine whether an arbitration clause is enforceable. The contrast between
that statement and the above-mentioned argument of the judgment has not been
examined further.
With the emergence of fast-track
settlements in arduous international commercial cases, numerous parties have
started to prefer emergency arbitration as an alternative to seek interim
relief. As a result, many jurisdictions, such as India, US, UK, Germany, and
China, as well as arbitration institutions like the International Chamber of
Commerce and Stockholm Chamber of Commerce, have changed their national
legislation to include newer and more effective dispute resolution methods
within their scope. However, two fundamental issues remain unaddressed and have
limited parties to choose emergency case of arbitration. One is the difficulty
of enforcing an emergency arbitration award and the other is the effectiveness
of such arbitration in relation to defense of the welfares of parties.[19]
Part II Industry Specific v/s applied Arbitration
This part is more of
philosophical then theoretical or practical. First lets us probe into ‘Industry
specific’ arbitration.
As we start understanding
any substance, on flux of time we dive more into it and bring numerous thing
from the sea including the pearl in shell. This industry specific word is
similar to such concept.
We learnt about
arbitration, than started to practice the arbitration. We started practicing in
various field like architecture, business, partnership, engineering etc. And we
learnt that all the field are rooted with some trade secret or some technical
aspect or certain experience traits, and so do we come up with the concept of
industry specific.
A number of industry bases The Indian
example of a case in which the Supreme Court upheld an award made by a SIAC
arbitrator. The judgment was delivered in a case involving a dispute between
two companies. In the case at hand, the judgment was delivered in favor of one
of the parties. There is no explicit legislative provision in favor of an award
made by an emergency arbitrator in India. However, in the case at issue, the Supreme
Court upheld the award. This case is a good example of applying pro-arrangement
principles and recommendations made in Law Commission Reports. Indian
Arbitration Act 1996 The Law Commission Reports in Amazon (NV) investment
Holdings Inc. versus Next Retail Ltd
1. International Commercial Arbitration:
Rules device to cater International arbitration.
2. Arbitration Board of India: In order
to encourage institutional arbitration in India, the government of India has
proposed the establishment of the Indian Arbitration Council. The purpose of
the ACI is to evaluate the functioning of arbitration institutions and to
accredit the arbitrators.
3. Industry-specific Arbitration Centers:
Many industry-specific arbitration centers have been set up in India to meet
the specific requirements of various industries. For instance, the Mumbai
center for international arbitration and the Delhi international arbitration
center have been established to settle domestic and international commercial
cases effectively.
Now, I come on my desire, whenever I
have learned law I remember the Indian definition of Aphorism as
?????????? ??????????? ???? ???????????? ??????? ????????? ? ?????? ?????? ????? ?????
i.e. Aphorism is less
word, doubt free, complete meaning , universal, truth this is what aphorism is,
and so is the rule of law it need not be bundles and bundles but must be
universal and less to handle then it is law.
Now Industry specific
laws are adding time to time to the arbitration act and that this is increasing
the documents. So, to reduce the industry specific rule we need to use the term
applied law instead of specific rules.
Now, again the question
prevails that if we mention as applied law and deny the bundles of industry
specific instruction what is way to cope up, and it simple means to add the
Aleatory and Adhesion contract clause in the arbitration act.
So, let’s avoid industry
specific agreement/ arbitration, instead we need to start using the term
“Applied arbitration”
Conclusion
This paper has attempted
to give exhaustive definition of the Franchise for the first time. In this
paper we mention a special need of the ‘rules’ for arbitration in industry of
Franchisee. Also, it takes a delight to state that understanding is one aspect
and creating bundles of law is another aspect. Industry specific Arbitration
rules are like growing and piling up bundles of laws, but to curtail it
franchise law just mention that add the Aleatory and adhesion contract; like
Singapore court, India too need to adopt opportunity in franchisee contract to
initiate by ‘vulnerable’ party. And make every agreement bind by both the
parties.
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Arbitration: At the Intersection of Statutory Interpretation and Arbitration
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2. Munch, M. (2010). Franchisee
Arbitration: The Pros, Cons and Potential Waivers. St. John's Law Review, (4),
1263-1294
3. Law relating to Arbitration and
Conciliation in India, 4thh Ed., Dr. N.V. Parajanpe, Central Law Agency,
Allhabad, 2011
4. Borkowski, R. (2013). The Advantages
and Disadvantages of Arbitration: Franchisees' and Franchisors' Views. Journal
of Hospitality & Tourism Research, (4), 416-427
5. Nyaya Darshanam Boudhbharati, Nyaya
Bhashya, Varansi 1976
6. Samkhya Karika Shloka
9.
Franchising Arbitration in Brazil: What to
Expect from the New Franchising Legislation?, arbitrationblog.kluwerarbitration.com,
2020
11. Bare act of ‘The Financial Act,
1999’, published on incometax.gov.in, 1999
12. Report of Brazilian Franchise Law, 2020,
published on lawsofbrazil.com, 2020
13. www.azquotes.com
14. www.cidra.com
15. www.drishtiias.com
[1] www.cidra.org;
https://arbitrationblog.kluwerarbitration.com/2022/12/06/
[2] Vakilsearch.com; The finance Act,
1999 Sec. 32, bare act, incometax.gov.in
[3] Ibid
[4] Iclg.com; Brazilian Franchise Law,
Law Nº 13,966, of December 26th, 2019, published on lawsofbrazil.com
[5] Law relating to Arbitration and
Conciliation in India, 4thh Ed., Dr. N.V. Parajanpe, Central Law Agency, p.
348-49
[6] Franchising Arbitration in Brazil: What to
Expect from the New Franchising Legislation?, arbitrationblog.kluwerarbitration.com,
2020
[7] Nyaya Darshanam Boudhbharati,
Nyaya Bhashya, Varansi 1976, 3.1.50
[8] Samkhya Karika Shloka 1.8
[9] Ibid
[10] Ibid
[11] Ibid
[12] Ibid
[13] Ibid
[14] Ibid
[15] www.aribtrationblog.arbitrationkluwers.com;
www.cidra.com
[16] Ibid
[17] Ibid
[18] https://arbitrationblog.kluwerarbitration.com/2018/12/08/;
www.cidra.org
[19] Ibid
Article Information
ARBITRATION IN FRANCHISE SYSTEM: APPLIED ARBITRATION
Authors: PROF. DEEP KAPADIA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/06/27
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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