Protecting franchisees interests in franchise agreement under vietnamese law in comparison with french, UK and EC law

m Joint Swedish-Vietnamese Master’s Programme MASTER’S THESIS NGUYEN THI TINH PROTECTION 0F THE FRANCHISEE’S INTERESTS IN FRANCHISE AGREEMENTS UNDER VIETNAMESE LAW IN COMPARISON WITH FRENCH, UK AND EC LAW THƯ VIỆN ■"HẰNỘI SUPERVISORS: Dr Nguy en Viet Ty Ass Prof Katarina Olsson HANOI- 2009 m Statutory Declaration I hereby declare that this thesis has been written by myself The thesis has neither been presented to an institution for evaluation, nor has it been published previously in its entirety or in part Acknowledgements This thesis has been completed with the help o f my supervisors Professor Katarina Olsson and Doctor Nguyen Viet Ty I would like to express my special thank to all for their supervision and help Table of Contents Table of Contents Abbreviations Introduction 1.1 Background o f the thesis 1.2 Purpose and Research questions 1.3 Delimitation 1.4 Methodology of the T hesis 1.5 Research Sources 1.6 M ainC ontent .3 The Basic Concepts of Contract and Franchise Contract 2.1 2.2 3.1 3.2 3.3 Contract 2.1.1 The Concept o f a C ontract 2.1.2 General Principles on the Formation and Períịrmance of a Contract Franchising and Franchise Contract 2.2.1 V ietn am 2.2.2 France 12 2.2.3 United Kingdom 13 2.2.4 EU .15 Protecting the Franchisee in Vietnam, France,the UK and and the EU 19 Pre- contractual disclosure o f iníịrmation 19 3.1.1 V ietn am 20 3.1.2 F n ce 23 3.1.3 United Kingdom 26 3.1.4 EU 29 T echnical Assistance 32 3.2.1 V ietn am 33 3.2.2 France 33 3.2.3 United K ingdom 34 3.2.4 E U 35 Source of supplied goods/material to the franchisee 36 3.3.1 V ietn am 37 3.3.2 F rance 38 3.3.3 United K ingdom 39 3.3.4 E U 40 3.4 Price maintenance 43 3.4.1 V ieínam .43 3.4.2 F rance 44 3.4.3 United K ingdom 45 3.4.4 European U nion 46 Recommendation íòrVietnam on the Protection of the Franchisee’s Interests 49 4.1 Recommendation for regulation on Pre-contractual Disclosure of Document 50 4.2 Recommendation for regulation on Technical Assistance 51 4.3 Recommendation for regulation on Source of Supplied Goods/Materials 52 4.4 Recommendation for regulation on Resale Price Maintenance 53 Conclusion 54 Table of Statutes and other Legal Instruments 55 Table of Cases .58 Bibliơgraphy 59 Internet sources 59 Abbreviations Abbreviations Art Article Id Ibidem IPRs Intellectual Property Right ECJ The European Court of Justice EU European Union EC European Community PICC The UNIDROIT Principles of International Commercial Contracts 2004 RPM Resale Price Maintenance VRBE Vertical Restraints Block Exemption UK United Kingdom Introduction 1.1 Background of the thesis In the recent period after Vietnam became a member of the World Trade Organization, commercial activities in general - and Ễranchising activities in particular - have becorne hũt” subjccts of discussion in GUI country Tỉiere are ã lot of auvaiìtâgcs with íranchising when this is compared with establishing an enterprise under a new trade name; for example, íranchising limits the risks for the person who enters the market for the first time, as he or she does business under an already successM trade name in the market This is the reason why so many businessmen have engaged themselves in íranchising activities Some of the raore well-known examples of ữanchises in Vietnam are: McDonald’s, Loterria, Seven Eleven, Kentucky, Trung Nguyen Coffee, Kinh Do Bakery, Pho 24, Pho Vuong, AQ Silk, Qualitea, Dilmah, Foci, etc Traditionally, the franchisor and the íranchisee are independent from each other both in legal status and in matters of íinance Franchisees are individuals who want to start their own business under a íranchising concept Thus, in general, they must sign a standardized agrcement íịrmulated by the Ểranchisor The agreement is usually draíted by the ữanchisor with basis clauses that are more advantageous for the ữanchisor, leaving the ữanchisee few options for protecting their own interests Moreover, to protect the reputation and uniíorm character of the ữanchise system, the law normally permits the íranchisor to control the franchisee’s business conduct These are the main reasons why the ữanchisees are disadvantaged in their negotiation with the íranchisor, their performan.ce o f the franchise contract and in the ability to respond to the franchisor’s abusive action In such situations, the íranchisee may tum to contract law’s recognition of a “duty of good faith and fáir dealing” for protection In Vietnam, regulations on the rights and obligations of the parties in íranchise contracts, as well as other regulations related to protecting the franchisee, are not considered adequate A gap in the law may permit the íranchisor to take actions that would inốinge the franchisee’s right The practice of ữanchising and the law on íranchising were bom and developed very early, and rapidly, in some countries in Europe By examining and comparing the law o f Vietnam to the law of some European countries regarding franchising, Vietaam will beneíit from the legislative exDeriences o f these other countries Against the background sketched above, I have decided to examine the topic: Protection of the Franchisee’s Interests in Franchise Agreements under Vietnamese Law in comparison with French, UK and EC Law 1.2 Purpose and Research questỉons The thesis aims to compare the Vietnamese, French, United Kingdom (ƯK) and European Community (EC) law on the protection of the franchisee’s interests From the results o f this comparison, I shall draw some conclusions that can be considered by the Vietnamese legislator when working on the franchising legislation of Vietnam In short, the overall research questions of this thesis are: — How is the íranchisee protected under Vietnam, French, UK, and EC law? - How can the Vietnamese law be improved on this issue? 1.3 Delimitation The thesis will only investigate to the protection of ữie franchisee’s interests in the perspectives of four different aspects of the íranchising contract, namely: (1) precontractual disclosure of iníịrmation; (2) technical assistance; (3) supplied source of goods/material to the franchisee; and (4) price maintenance The reason why I have chosen these four aspects to investigate are as follows Firstly, disclosing iníịrmạtion and providing technical assistance to the íranchisee mainly depend on the good faith of the íranchisor Secondly, appointing the supplied source of goods/material and determining the price are two issues that can easily be abused by the íranchisor due to the disadvantaged position of the íranchisee in many cases The thesis will deal with the Vietnamese, French, UK, and EC law I have chosen to compare the law of these countries because: (1) they belong to legal systems that are very much diíĩerent from that of Vietaam, and (2) ửiey have had a long tradition of and much experience in íranchise law 1.4 Methodology of the Thesis To achieve the purpose of the ữiesis, the following methođs will be applied: - to đescribe the cuưent law on the rights and the protection of đie franchisee’s interests in Vietnam, France, UK and EU; — to compare the similarities and differences between the Vietnamese and the UK, French and EU regulations on the protection of the franchisee’s interests - to analy ze the content o f these regulations and to prơDOse some improvements on the Vietnamese laws on the protection of the franchisee’s interests; 1.5 - Research Sources Franchise, competitiion and contract regulations in Vietnani, France, United Kingdom and the European Community; - Cases; - Legal theories, articles, opinions, commentaries etc í.6 Main Content Part 1: Introduction Part 2: The Basic Concepts of Contract and Franchise Contract Part 3: Regulations on the Protection o f the Franchisee’s interests in different jurisdictions Part 4: Recommendation with a View to Improving the Vietnamese Law Part 5: Conclusion an undertaking which is a party to the agreement to pay him a penalty in respect of the inỄringement102 However, there are sơme excepĩions from this prohibition If it is exempt from the Corrununity prohibition,103 it will also be the case under UK law Thus, the block exemption of the European Community mentioned in Section 3.4.4 of the thesis will be applied in the UK The prohibition is also applied in the case where the vertical agreement, directly or indirectly, in isolation or in combination with other íactors under the control of the parties has the object or effect of restricting the buyer’s ability to determine its sale pncs, withouí pĩCỊudĩCv to the possibility o f the supplier imposing a maximum sale price or recommending a sale price, provided that these not amount to a fíxed or minimum sale price as a result of pressure from, or incentives offered by, any of the parties.104 From the regulations above, we have leamed that the íranchisor may speciíy maximum prices and recommend prices, but not set minimum prices or fix price 3.4.4 European Union Art 81 (1) of the EC Treaty provides particular examples of restrictive practices such as the direct or indirect fixing of purchase and selling prices or any other trade conditions; limitation or control of production, markets, technical development, or investments, sharing of markets or sources of supply; application if dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage, and conclusion of contracts subject to acceptance by the other parties of supplementary obligations that, by their nature or according to commercial usage, have no connection with the subject of such contracts These restrictive practices shall be prohibited as incompatible with the common market, may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market.105 Agreements or decisions that breach the provision shall be automatically void.106 However, it does not mean that all agreements or decisions which directly or indirectly fix purchasing or selling prices or any other trading condiíions shall be pre102 Section 36(1),(2),(3) of the UK Competition Act 1998 103 Section 10(1) of the ƯK Competition Act 1998 104 Section of the UK Competition Act 1998 (Land and Vertical Agreements Exclusion) Order 2000 105 Art 81 (1) (a) of the EC Treaty 106 Alt 81 (2) of the EC Treaty 46 sumed illegal automatically Only agreement which has their object or effect the prevention, restriction or distortion of competition within the common market is prohibited There are some exemptions which are mentioned in the Block Exemption Regulation as well as in the European Court’s decision In principle, the exemption shall be aoplied on condition that the market share held by the supplier (means the the combination market share of the ữanchisor and the íranchisee in franchise context) does not exceed 30 % of the relevant market on which it sells the contract goods or services.107 Besides, the Block Exemption Regulation contains the list of hardcore restrictions in Art (a) which lead to the exclusion o f the entire vertical agreement from scope of application of the Block Exemption Regulation (Regulation No 2790/99) Pursuant to this Regulation, Resale Price Maintenance (RPM) provisions is a hardcore restriction which concems agreement or concerted practices that have as their direct or indirect object the establishment of a fixed or minimum resale price, or a fixed or minimum price level to be observed by the buyer However, maximum prices can be fixed and non-binding price recommendations can be made, provided these not result in practice in price íìxing or resale price maintenance as a result of pressure or incentives by the parties.108 It means that, the establishment of a fixed or minimum resale price, or a fixed or minimum price level may be taken directly or indirectly In the case o f contractual provisions or concerted practices that directly establish the resale price, the restriction is clear cut However, RPM can also be achieved through indirect means For examples, an agreement fixing the distribution margin, íixing the maximum level of discount the distributor can grant from a prescribed price level, making the grant of rebates or reimbursement of promotional costs by the supplier subject to the observance of a given price level, linking the prescribed resale price to the resale prices of competitors, threats, intimidation, wamings, penalties, delay or suspension of deliveries or contract terminations in relation to observance of a given price level Direct or indirect means of achieving price íĩxing can be made more effective when combined with measures to identiíy price-cutting distributors, such as the implementation of a price monitoring system, or the obligation on retailers to report other members of the distribution network who deviate from the Standard price level Similarly, direct or indirect price íixing can be made more effective when combined with measures which may reduce the buyer’s incentive to lower the resale price, such as the supplier printing recommended resale price on the product or the supplier obliging 107 Art of the Block Exemption Reeulation 10S Art (a) of the Regulation 2790/99 47 the buyer to apply a most-favouređ-customer clause The same indirect means and the same ‘supportive’ measures can be useđ to make maximum or recommended prices work as RPM However, the provision of a list of recommended prices or maximum prices by the supplier to the buyer is not considered in itself as leading to RPM.109 This is consistent with the position taken by the Court of Justice in its Pronuptia, Sei-vice Master and Yves Rocher decision As indicated above, price guidelines are possible, in the Service Master decision, this principle was coníirmed by the statement that “The recommendation of sales prices to ữanchisees is not a restriction of competition since franchisees remain entirely free to determine their own prices for the supply of services and home-care products.” 110 Whereas guidelines are acceptable, they may not lead to concerted practices The Court decided in the Pronuptia judgment that, “although provisions which impair the franchisee’s íreedom to determine his own prices are restrictive o f competition, that is not the case where the íranchisor simply provides franchisees with price guidelines, so long as there is no concerted practice between the franchisor and the íranchisees, or between the íranchisees themselves for the actual application of such prices It is for the national court to determine whether that is indeed the case.” 111 In the Yves Rocher dccision, thc Commission coníirmed the principle that “the recommended prices shown on the catalogues issued by Yves Rocher to íranchisees are legitimate, since íranchisees remain entirely ữee to determine their own prices and since, during the procedure, no evidence has been found of any concerted practice between the íranchisor and íranchisees, or among franchisees, to the effect that the recommended prices should be applied.” 112 From the analysis above, we can draw two following conclusions: Firstly, the setting o f minimum prices or fixing prices is considered as a breach o f Art.81(l) of EC Treaty, though it is established by direct or indirect ways Secondly, the íranchisor can make the recommendations and maximum prices to the íranchisee with the condition that they not go beyond simple advice and there 109 Coinmission, Section III.3 (47) o f the Guidelines on Vertical Restraints 110 Commission decision No 88/604/EEC, Service Master, S.20 111 Case 161/84,Pronuptia, s 25 112 Commission Decision No 87/14/EEC, Yves Rocher, S.5 48 is no concerted Dractice between the íranchisor and the íranchisee or 'between the íranchisees themselves for the actual application of such prices An agreement that breaches the above provision is void Conclusion: From analysis above, we can see that, there are similarities between Vietnam and France, UK as well as Eư in that: Firstly, the setting of minimum prices or ílxing prices would be considered a breach of European, French, UK as well as Vietnamese law in the case that the market share held by the íranchisor from 30% or over the relevant market on which it sells the contract goods or servíces in this case the íranchisor'action wiỉỉ be consiđer as abuse dominant market position Secondly, the setting of maximum price or recommended prices is not restricted However, French and EU law provide very clearly that if the recommended price were to result in a uniíịrm price being adopted by all the ửanchisees in the same íranchise network, it shall be prohibited The UK law does not legislate on this issue However, with the position of UK as a member of the EU, it will apply directly EU law including Commission decisions as well as the case law of the Court of Justice So, we can understand that the EU law and ƯK law are similar on this issue The law of Vietnam does not have any case, nor any regulation, which restricts the franchisor’s íreedom to set maximum price or recommended prices in the case where the ữanehisee docs not remain entirely free to determine their own prices or where there are concerted practice between the íranchisor and the franchisees or between the íranchisees themselves for the actual application of such prices This situation does not only make the íranchisee not really independent in determining his price, but also affect badly the competition environment Recommendation íorVietnam on the Protection of the Franchisee’s Interests From the analysis above, we can observe some characteristics of the íranchising legislation in Vietnam, France, the UK and the EU: Firstly, in France, the UK and the EU, there has been - and, to a certain extent, still is - the absence of a speciíĩc regulatory framework for ữanchising It should however be remembered that general principles of civil law, commercial code (in France), competition act (in the UK), the EC Treaty, the Vertical Restrains Block Exemption, the Contract Principle (in EC) are applicable to íranchising agreements 49 Meanwhile, the Vietnamese law has some speciíic reguỉations on íranchising in the Commercial Law 2005, Decree 35/2006/ND-CP, Circular 09/2006/TT-BKHCNMT Secondly, it seems that the competition law and franchising are very closely related The French, EU and UK law have clearly deíĩned this relationship through case law with exemption for íranchising as shown in the analysis above The exemption rules for franchising have risen from the nature of franchise activity In ữanchising, the know-how, reputation, uniíịrm of ữanchise system are very important for the íranchise system, particularly for the ữanchisor However these may easily be inôinged by the franchisee So, in many cases, the íranchisor is permitted to impose obligations on the franchisee to limited this infringement In certain extent, this action may affect the competition environment Because-it is necessary to protect know-how, reputation as well as the uniíormity o f the franchise system, the action of the franchisor in some cases would be valid, This is one reason why the franchisee can fínd himself or herselí in a more disadvantage position The Vietnamese law now does not really see the effect of competition law on franchise activity The inadequate legislation needs to be amended to reílect the nature of the franchise activities Exception regulations in competition law for franchise activity are needed, while speciílc provisions are also required in order to avoid abuses by the íranchisors of the permitted exceptions 4.1 Recommendation for regulation on Pre-contractual Disclosure of Document The regulations on the franchisor’s obligation in disclosing iníịrmation o f Vietnam is basically quite adequate with respect to the type of iníịrmation, the content, and the time-limit to provide iníịrmation As mentioned before, in a ữanchise relionship, the franchisee faces a lot o f difficulties in getting information from the íranchisor, while the ữanchise contract is considered a “joining contract” So, to naưow the gap in iníormation, and to help the ữanchisee obtain adequate iníịrmation so as to reach a decision on signing or not signing the contract, Vietnam should amend and supplement on the following issues: Firstly, as to the content of iníonnation must be disclosed by the íranchisor, Vietnam should legislate on the level of detail o f the description provided by the íranchisor to the íìanchisee, such as the information about the main stage in developing the íranchise system This iníịrmation will help the intended íranchisee to evaluate the ability and development of the franchisor as well as the ữanchise system in business and to estimate whether or not he satisíĩes the condition for canying on the franchise, in order to gain the success and eam prìt if he enters the íranchise systera 50 Secondly, as to the íĩnancial report of the ữanchisor, Vietnam should leam from the experience of France, requiring the franchisor to provide the íĩnancial report over a longer period of time, for example requiring the ữanchisor to provide the annual financial statements for the last two fiscal years Two years is long enough for the franchisee to assess the financial situation as well as the prospect of development of the íranchisor Thirdly, Vietnam should also leam írom the experience o f Franceon th e timelimit o f disclosure, which is based on the number o f days beíore the signing by the prospective íranchisee o f any agreement relating to the franchise or the payment to the franchisor or an affiliate of the íranchisor by the prospective franchisee of any fees relating to the acquisition of a franchise, and not based on the vvorking days before the signing the franchise contract as provided in Art.8 of Decree 35/2006/NDCP at present Fourthỉy, with respect to the franchisor’s responsibility in the case of íailing to provide iníbrmation to the ữanchisee, a higher fĩne is needed as the sanction As mentioned in section 3.1.1, Vietnamese law imposes a fme from 3,000,000 VND to 5,000,000VND, which is not severe enough to deter the íranchisor in providing information Moreover, Vietnam should legislate more clearly about the duty o f failing to provide iníormation as a ground for the íranchisee to cancel the franchise contract or to ask the court to void the Ểranchise contract if the franchisee can prove that missing or incorrect information is the cause leading to the poor result for the íranchisee after signing the contract 4.2 Recommendation for regulation on Technical Assistance As mentioned in section 3.2.1, the Vietnamese law treats technical assistance as an obligation of the íranchisor In other word, the franchisee has the right to require the ửanchisor assist him/her in the aspect of technique However, this issue is still regulated too generally and there is no provision speciíically restricting the franchisor’s abuse o f this rule in order to control the íranchisee unduly in his/her business Thus, the law of Vietnam should implement and amend these following issues: Firstly, deíĩning the kind o f technical assistance by the íranchisor, such as organizing regular training seminars, reviewing sales techniques, launching new Prod­ ucts, training manager and updating safely procedures Secondly, implementing the regulations on prohibiting the crude control of the íranchisor which make the franchisee lose the independence in business Thirdly, making clear the íranchisor’s obligaíion in the case of failure the duty of technical assistance, such as compensation duty, contract voidability especially in 51 cases of serious breaches, e.g serious losses and undue control of the franchisee’s business that iníluence the independence o f the franchisee’s management 4.3 Recommendation for regulation on Source of Supplied Goods/Materials •As the analysis in section 3.3 shows, the source o f supplied goods/materials to the íranchisee is a term used mainly to control the supply o f raw material, or the product themselves, to the franchisee that endeavours to protect the franchisor’s position within a speciíĩed geographical area On the one hand, this term permits the ữancnisor ío đeíermine the range and quality of the producís soỉu by the íranchisee On the other hand, it may prohibits the íranchisee from obtaining goods from suppliers other than those designated by the franchisor This action may limit the íreedom of the íranchisee and may be considered as an anti-competitive action However, the French, UK and European Community law admit that this type of clause is valid if it reach a certain condition It allows the ữanchisor to preserve its rights on the know-how developed, to prevent the íranchisee ữom using this knowhow for purposes other than the íranchised business, as well as to ensure the uniíorm in the quality of products and to protect reputation of the franchising network In fact, the íranchisor may abuse this right by imposing the íranchisee the strict obligation to purchase goods/materials from the franchisor or selected supplier even if such goods/materials does not directly relate to the subject o f the íranchise agreement nor affect the uniíormity and reputation of the íranchise system Besides, imposing the source o f goods/materials, the ữanchisor may also impose the price of such goods/materials on the íranchisee, because the íranchisee does not have any other choice to purchase goods/materials from other suppliers Thus, it is necessary for Vietnam to stipulate more detailed rules on this issue in order to ensure the indepenđence of the íranchisee in doing his/her business and to ensure a fair competition environment with following points: - the first priority is to deíine clearly the limitation of franchisor’s right to require the íranchisee to purchase goods, material from the íranchisor or the supplier selected by the íranchisor if it is necessary to ensure unity of the íranchise system, Vietnam should prohibit the franchisor’s to require the íranchisee to purchase goods, or material from source selected by the Ếranchisor in two following cases, viz., purchasing such goods, material not related directly to the subject of the íranchìse contract; and if the íranchisee can prove that the íranchisor receives profit (percentage) from the purchase contract concluded betvveen the franchisee and the supplier appointed by the franchisor, and the franchisor’s re- 52 quirement to the íranchisee purchased these goođs/maíerials is clearỉy harmful to the ữanchisee 4.4 Recommendation for regulation on Resale Price Maintenance The competition law should be improved in the following ways: Apart from permitting the Ểranchisor to set the maximum prices or recommended prices, the Vietnamese competition law should implement the exemption that prohibits the ữanchisor from making a recommendation if there is a concerteđ practice betvveen the íranchisor and the ữanchisees, or betvvcen the ữanchisees themselves for the actual application o f such prices This rule is to ensure the fair of competition environment in Vietnam 53 Coiicỉusioĩi Aithough there are not speciíic regulation on ữanchising, the law on franchising in the EU, France and the UK are quite adequate Because, beside writen law, they have case-law to regulate ữanchising, íuthemore, they have realized the nature of íranchise activity, as well as the relationship between ửanchising and competition law So that, they have ílexible rules to regulate these activities because While Vietnam seems not to have realized this problem, especially the issue related to protecting the franchisee’s interests such as pre-contractual disclosure iníịrmation, technical assistance, the source of supplied goods/materials to the íranchisee as well as price maintenance To resolve this problem, it is necessary to ensure both parties’ freedom when entering the contract At the same time, the law must also intervene to protect the reasonable interests of both parties, especially the weak party (which normally is the ữanchisee) Besides, the law needs to deíine the limitation on abuse action of the franchisor which would violate the competition law or amount to undue control of the ữanchisee business Through the above examination of the Vietnamese law and the experience from the legislation in the EU and France and the UK, I hope that this thesis will contribute to the improvement of the law on franchise activity in Vietnam It is difficult to deal with all these issue in a complete way because of the complexity o f the legislation and related factual issues Further research is still nceded 54 Table of Statuíes and other Legal Instruments EC Legislations EC Treaty The Principles of European Contract Law 1998 Commission Regulation No 4087/88 of 30 November 1988 on the application of Art.85(3) of the Treaty to categories of ữanchise agreement, O.J 1988 [L359/46] Commission Regulation No 2790/1999 of 22 December ỉ 999 on the appiication of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices, O.J [L 336/21], 29 December 1999 Commistion Decision of 17 December 198Ố in proceedings under Art 85 of the EEC Treaty (IV/30937 - Pronuptia), No 87/17/EEC, O.J (L013), 15/01/1987 p 39-47 (Cit Commission decisionNo 87/17/EEC, Pronuptia) Commission Decision No 88/604/EEC of 14 November 1988 relating to a proceeding under Art 85 of the EEC Treaty (IV/32.358 - Service Master) O.J L 332 , 03/12/1988 p 38-42 (Cit Commission decision No 88/604/EEC, Service Master) Commission Decision No 87/14/EEC, Yves Rocher, of 17 December 1986 O.J EEC L 8/49 o f 10 January 1987 (Cit Commission Decision No 87/14/EEC, Yves Rocher) National Legislation France French Civil Code French Commercial Code 2003 Law No 89-1008 (Loi Doubin) of 31 December 1989 on the development of commercial and handicraữs enterprises and the improvement of their economic, legal and social environment Decree N° 91-337 o f April 1991 on application Axticle the Law No 89-1008 (Loi Doubin) o f 31 December 1989 The Ordinance No 86-1243 of December 1986 on Freedom of Price and Competition 55 United Kingdom Misrepresentation Act 1967 Unfair Contract Terms Act 1977 The ƯK Competition Act 1998 The Competition Act 1998 (Land and Vertical Agreements Exclusion) Order 2000 No 1260 The Restrictive Trade Practices (Non-notifiable Agreements) (Sale and Purchase Share SubscrĨDtion and Franchise Agreements) Order 1997 No 2945 Vietnam Vietnamese Competition Law 2004 Vietnamese Civil Code 2005 Vietnamese Commercial Law 2005 Intellectual property law 2005 Decree No 45/1998/ND-CP Detailing about transfer technology, adopted by Gov­ ernment, dated July 1998 Decree No 11/2005/ND-CP Detailing about transíerring technology (amended), adopted by Government, dated February 2005 Decree No 35/2006/ND-CP Detailing the provisions of the commercial Law on commercial franchising, adopted by Government, dated 31 March 2006 Decree No 06/2008/ND-CP dated 16 January 2008 of the Government on administrative sanctions of violations in commercial activities Circular No 1254/1998/TT-BKHCN of Ministry of Science and Technology providing guidance for the Decree 45/1998/ND_CP Circular No 1254/1999/TT-BKHCN promulgated by the Ministry of Science and Technology to provide the guidance for the Decree 45/1998/ND-CP on technology transfer Circular No 30/2005/TT-BKHCN Guiding períịrming on technology transíer regarded franchise as a form technology transíer activity Circular No 09/2006/TT-BTM Guiding the commercial franchising registratioii, adopted by the Ministry of Trade, dated 25 May 2006 56 Other Instrumeiìts European Code of Ethics for Pranchising issued by European Franchise Federation 19 September 2008 See: http://www.eff- franchise.com/IMG/article_PDF/article_13.pdf The Model Franchise Disclosure Law of Unidroit, September 2002 http://www.unidroit.org/english/modellaws/2002franchise/2002modellawe.pdf Principles o f International Commercial Contracts 2004 (PICC) issued by ƯNIDROIT http://www.unidroit.org/english/principles/contracts/principles2004/blacklett er2004.odf ĩ Guidelines on Vertical Resừaints (2000/C 291/01) of the Commission, O.J [C 291], 13 January 2000, p 01-44 57 Table of Cases Court of Justice of the European Communities Pronuptia de Paris GmbH V Pronuptia de Paris Irmgard Schillgalỉỉs, Case 161/84, [1986] E.C.R p.353 (Cit Case 161/84,Pronuptia) United Kingdom Esso Petroleum V Mardon [1976] Q.B 801 58 Bibliograpỉiy OffìđaI Reports and other Documents Commỉssion Report XXIXth on competition policy 1999 Check! This is most likely a report of the Directory-General for Competition and not the European Commission The Report on Competition Policy and Vertical Restrains: Franchise agreements, prepared by Organisation for Economic Co-operation Development (OECD) Secretariat Vietnamese Ministry of Trade Document (which document?) in Seminar of íranchising is funded by the Australian and the Vietnamese Government, December 2004 Monographs and journal articles Burton, Steven J., Breach o f contract and the common law duíy to perform in good faith, 94 Harvard Law Review (1980) 369 Dennis, Campbell, International Franchising Law, Volume 1, Mathew Bender & Company, 2005 Eric M Holmes: A contextual Study o f Commercial good faith: Good faith in disclosure in contract Pormation 39U PITT L REV 381, 452 (1978) Steven J Burton Breach o f contract and the common law dutỵ to perform in good faith 94 HARV.L.REV 369, 372-73, 372.nl (1980) Thomas J Chinonis, Implied Covenant o f good faith: A two-way stress in /ranchising, 11 DEPAƯT BUS L J 229, 231 (1998) Vu Dang Hai Yen, Theory and Reality o f Regulaíion on /ranchising in Vietnam, PhD thesis, Hanoi University o f Law, 2008 Internet sources http://www.legifrance.gouv.fr/htm l/codes_traduits/code_civii_textA.htm#CHAPTER%20ỉ%20%20PRE (last visited 16 July 2009) http://www.opsi.gov.uk/legislation/about_legislation (last visited 16 July 2009) http://eur-lex.europa.eu/en/index.htm (last visited 16 July 2009) http://www.thuvienphapluat.vn/default.aspx (last visited 16 July 2009) http://vbqppl.moj.gov.vn/law/vi/index_html (last visited 16 http://www.thebfa.org/ (last visited 16 July 2009) 59 Ju ly 2009) http://www.eff-franchise.com/spip.php7rubrique14 (last visited 16 July 2009) http://ec.europa.eu/com petition/annual_reports/1999/en.pdf (last visited 16 July 2009) http://eurlex.europa.eu/LexUriSei'v/LexUriServ.do?uri=OJ:L:1999:336:0021:0025:EN:PDF (last visited 16 July 2009) 60 ... Interests in Franchise Agreements under Vietnamese Law in comparison with French, UK and EC Law 1.2 Purpose and Research questỉons The thesis aims to compare the Vietnamese, French, United Kingdom... Joint Swedish -Vietnamese Master’s Programme MASTER’S THESIS NGUYEN THI TINH PROTECTION 0F THE FRANCHISEE’S INTERESTS IN FRANCHISE AGREEMENTS UNDER VIETNAMESE LAW IN COMPARISON WITH FRENCH, UK AND. .. good faith and fair dealing in Vietnamese, French, UK and EC law However, one author defines good faith and fair dealing as an “absence of intention to harm a legally protected pecuniary interest”.14