The following article was submitted by Guest Author, Kathryn Rookes. Kathryn is an experienced franchise attorney and a member of FSB Legal, a virtual law firm. She is one of the very few franchise attorneys in the United States with experience in a government regulatory practice (Maryland Division of Securities), private practice, and as in-house counsel. With this diversity of experience, Kathryn understands the issues that franchisors face on a daily basis.
Introduction to International Franchising
as submitted by Kathryn Rookes, Attorney, FSB Legal
Many franchisors perceive international expansion of their franchise concepts to be a great way to generate cash on a short term basis and do not fully appreciate the long‐term commitment that successful international franchising requires. The level of commitment and resources required to expand internationally is often greater than that required for domestic expansion. This article provides a brief overview of the requirements for international franchising and identifies a typical international deal flow process. We also have included several resources that contain additional information for further research.
Evaluate Your Resources
When making the decision to go international, you must consider the additional resources that you will need to successfully expand and support your new international franchisees. Areas of increased costs to consider include telephone and postage, travel, marketing, trademark registration, preparing international franchise agreements and disclosures, costs of goods due to export/import controls, foreign taxes, translations and document registration, to name a few.
Determine What You Will Offer
International deals are normally structured in one of three ways. First are single unit franchise sales (sometimes called direct franchising), much like many systems sell in the United States. The next option is area development rights, in which you identify 1 developer who opens multiple units of its own. The third common option is master franchising (also called sub‐franchising). In this method you identify 1 developer that has the right to open its own units, and also the right to sell additional units to other franchisees. In addition to these three methods, some international arrangements are structured as joint ventures, in which you are an equity partner with your foreign franchisee. Each method has its own risks and rewards, so you must evaluate your goals and your resources to determine which method best suits your needs.
Finding Good Research
Your research on each opportunity generally consists of two areas, research on the territory and research on your prospective franchisees. The internet provides a wealth of information on the territory. The United States Department of Commerce is a good starting point as is its included agency, the International Trade Administration. The trade promotion unit of the International Trade Association, the United States Commercial Service also provides significant help by providing market research, worldwide trade events for promoting your offering, assistance in identifying prospective franchisees, manufacturers and distributors, and individualized counseling on going international.
For research on your prospective franchisees, you are well served to retain the services of one of the many companies that provide due diligence or investigative type services. Research on people and companies in other countries is a very tricky business, as the stability, accuracy and adequacy of information in other areas of the world is often lacking. These companies will be able to evaluate the trustworthiness of the information they obtain, and can educate you on the limitations of the information so that you can make your own decisions on the risks you are assuming by choosing any particular franchisee.
Establishing a Deal Flow Process
The deal flow process for international deals will usually be significantly different from your domestic deal flow process and will necessarily require more time and resources for each deal. We generally recommend the following steps to ensure compliance with Unites States’ and the foreign country’s local law.
1. Determine whether there are any legal or practical barriers for your target country. Legal barriers include the U.S. government’s trade embargos and terrorism sanctions, in which U.S. businesses are prohibited from conducting business in certain countries. You may find this information primarily at the United States Department of the Treasury, Office of Foreign Asset Control website. The primary restrictions involve, as of January 2009, Balkans, Belarus, Burma, Cote d’Ivoire (Ivory Coast), Cuba, Democratic Republic of the Congo, Iran, Iraq, former Liberian Regime of Charles Taylor, North Korea, Sudan, Syria and Zimbabwe. Practical barriers (which also can be legal in nature) might include currency export restrictions (you won’t be able to get paid), prohibitions on foreign investment and/or ownership (you’re not allowed to invest there), lack of governmental infrastructure (you can’t register your trademarks or protect your intellectual property, trade secrets or contract interests due to lack of a stable court system), competition (both laws and actual), taxes (you can’t afford), restrictions on transfer (can’t stop your franchisee from selling out), economic conditions (won’t support your business model) and other such items.
2. Once you have determined that there is no barrier, you should determine whether there is a franchise disclosure and/or registration law in the target country. If there is, you should retain local counsel immediately to draft the necessary disclosure and handle the registration for you. We are happy to assist you with this process.
3. Identify your prospective franchisee and begin your background check on the prospect.
4. Negotiate and document a Letter of Intent that contains the material terms of the new deal. You will normally require a deposit against the initial development fee on the signing of the LOI.
5. Retain local counsel to review your proposed form of agreement to revise the agreement to ensure that it complies with all applicable local laws.
6. Negotiate with your prospective franchisee on any changes to your form of agreement. Once all terms are negotiated, you will finalize the agreement and proceed with signing.
7. Once your agreement is fully signed, you will want to proceed with registering your trademarks in the country, if you don’t already have the marks registered. If you have a large budget for your international expansion, you should ideally move this step up as early as you can afford, even up to step 2 if possible.
8. Once all of the above is accomplished, the real work begins. You now need to arrange for training, import of products or ingredients, site selection assistance, site development assistance, marketing assistance, and all of the other support services that franchisors normally provide.
With proper planning, international expansion of your franchise system can be an exciting new challenge that brings you many rewards. At FSB Legal, our attorneys are experienced in international franchising and have completed deals in over 35 countries. We are happy to help you begin this journey.
Besides the obvious factors of economic uncertainty and tight credit, what other factors are contributing to dismal franchise sales across the industry? Are we contributing to the problem? Are we doing a disservice to franchise candidates, the very people exploring options for a better future?
Recently, Franchise Update’s own mystery shopping (posing as a qualified buyer and phoning in and emailing to 148 franchise companies who represented 57,000 units) revealed such fundamental flaws as:
no callback within 48 hours (58%);
not taking a name (24%);
not taking a phone number (45%) or email address (40%); and
not asking for a time frame for buying/opening a franchise (67%).
The ironic thing is that the industry routinely pays out 20-30-40% commission on franchise sales.
In light of recent poor performance and, high expense in actually awarding a franchise, can the franchise industry continue its franchise development efforts in the same manner as it has for the past ten or so years AND expect to grow?
Assuming proper capitalization and diligence in establishing the original business concept as a franchise sytstem, in my opinion, there are two simple reasons for franchisor failure.
One, franchisors don’t treat the franchise relationship as an interdependent realtionship where success at all levels in the organization is dependent on each party to the franchise agreement. Ignoring this fact causes franchisees to feel they’re treated like unappreciated employees, breaks down communications and ultimately fractions the system itself. This results in untimely royalty payments and focuses franchisor’s attention on collections and possible legal actions.
Second, franchisors, especially startups, whether out of necessity or overzealousness, use the practice of checkbook franchising. That’s the difference between selling a franchise and awarding a franchise. Just because a franchise candidate has the funds doesn’t mean he will be successful as a franchisee. Too many of these franchisees cause problems in all areas and affect the system as a whole resulting in closed units and legal problems. Both of which must be disclosed in disclosure documents that ultimately affects franchise sales.
In the end, franchisors experience reduced revenue streams in both royalties and franchise fees while increasing legal expenses. Once this cycle begins it’s extremely difficult to stop without drastic change.
It is unfortunate the franchise industry continues to be (and always will be) subjected to bad press because of franchisee failures resulting in lost family savings including the children’s college fund. It’s unfortunate because bad press sells and society has evolved into accident watchers. Need I say “rubber necking on the highway?”
Not to mention that society has become full of gossipers. When was the last time you heard someone in the neighborhood say “Did you know Joe and Mary have been married for thirty happy years?” Such a positive comment is usually left unspoken, at best. Instead, you would be more likely to hear, “Did you know that Joe cheated on Mary.” Well, I think you see the point.
Would it be better for the press to report franchisee failure due to the franchisee not following the system, being undercapitalized or because of serious substance abuse problems? I seriously doubt it. But wouldn’t that at least educate the public? The same public that is looking at franchising as a career alternative or their first step into entrepreneurship. I know, that’s never going to happen either but it would shed a light on the truth.
I haven’t even touched upon less than reputable franchisors, undercapitalized franchise concepts and poor lending practices. Regardless, of how much government tries to protect potential franchise candidates, the government and the industry itself cannot effectively police every franchise professional, every franchise company and every aspect of commercial lending. It’s just not feasible and possible.
So, the ultimate answer lies in dedicating more time and resources in positively publicizing franchise concepts and the industry itself. As well, promoting efforts and results in working with community and non-profit groups would go a long way towards positive public sentiment.
Basically, we (reputable franchisors, franchise professionals and the industry as a whole), need to create a publicity bank that can be withdrawn from as a precaution and hedge against the potential and reality of negative publicity. And just like the cash reserves insurance companies are required to have on hand for future claims, multiple sources and instances of positive publicity must be accumulated to counter the few negative counts of publicity that the media so enthusiastically reports.
The world would not be a better place without franchising. We just need to inform and remind people of the industry’s efforts and accomplishments so the world knows how franchising has actually made the world a better place and will continue to do so for years to come.
The challenge is that in today’s uncertain economic environment, where franchisors continue to cut budgets, the possibility of dedicating more resources towards positive publicity is slim to none. Certainly, it won’t be done in the traditional sense.
But it can be achieved, as it can also be achieved for marketing, development and operations, by exploring non-traditional strategies, methods and processes which are essential to future franchise growth and success..at all levels.