The Regulation of the Franchise Relationship in Australia : a Contractual Analysis

  • Elizabeth Spencer

Student thesis: Doctoral Thesis


This dissertation examines whether the regulation of the franchise sector is effective in achieving two of the stated goals of the Franchising Code of Conduct. These two goals are redressing the imbalance of power in the relationship and increasing levels of certainty for participants in the sector. Based on the ‘new learning’ in regulation, this dissertation takes an expansive approach to the concept of regulation. It considers how, in a ‘multi-layered system of governance’, the layers of regulation of the franchising sector contribute to these goals. The results of the analysis suggest that private, self-regulation through the layers of market and contract sets up a relationship where there is an imbalance of power in favour of a franchisor and uncertainty for a franchisee. The market interaction between the parties establishes these conditions, which are reinforced by the contract, in particular by the interaction of the standard form and relational qualities of the contract. A public layer of governance, direct intervention in the form of the Franchising Code of Conduct, relies largely on selfregulatory tools such as disclosure and is also ineffective in addressing the imbalance of power in the relationship and in increasing levels of certainty for franchisees. Because neither self-regulatory mechanisms nor legislative intervention achieves the stated goals of redressing imbalance of power and uncertainty in the franchise relationship, the analysis concludes that a reframing of regulation is necessary. The recommended revised regulatory program features collaborative, participative, democratic process to gather and assess good measurements that inform the identification of problems and the selection of tools appropriate to address those problems.
Date of Award2 Feb 2008
Original languageEnglish
SupervisorLaurence Boulle (Supervisor)

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