ODREĐIVANjE MERODAVNOG PRAVA ZA UGOVOR O FRANŠIZINGU – NEKOLIKO NAPOMENA IZ UGLA MEĐUNARODNOG PRIVATNOG PRAVA SRBIJE

Abstract

In this paper author analyses the conflict-of-law regime for cross-border franchise contracts in Serbian private international law. The study begins with the characterisation of franchise contract and its delimitation form other similar contracts in Serbian legal system, such as a distribution contract and licence contract. It continues with the analysis of conflict-of-law rules of Serbian PIL Act which have to be applied to franchise contract, where the attention is given to the choice of law rule of Art. 19 of Serbian PIL Act and to the hard conflict-of law rule for innominate contracts contained in Art. 20 point 20 of Serbian PIL Act which may be derogated by special escape clause (Art. 20 sentence 1 of Serbian PIL Act). This hard conflict-of-law rule deviates heavily from the principle of characteristic performance, which has been established in hard conflict-of-law rules of Art. 20 point 1-19 that apply to nominate contracts, so the author finds that it should be considered as meaningless and, therefore, replaced with the new conflict-of-law rule based upon mentioned principle of characteristic performance which can be created in accordance with Art. 2 of Serbian PILA. Finally, author analyses the issue of determining applicable law for formal validity of franchise contract and applicable law for master franchise contracts as well as the issue of application of overriding mandatory rules which directly affect the cross-border franchise contracts.