Sunday, 2 August 2020

The Netherlands Commercial Court - an English Speaking Court in Amsterdam

By Stephencdickson - Own work, CC BY-SA 4.0,
https://commons.wikimedia.org/w/index.php?curid=72838371









Jane Lambert

On 28 Jan 2017, I wrote about a proposal to establish an English language commercial court in the Netherlands (see Jane Lambert An English Speaking Commercial Court in the Netherlands 28 Jan 2017 NIPC News).  In a Zoom call on Friday to an old friend who practises at the Dutch bar, I learned that the proposal was adopted by the Dutch parliament on 11 Dec 2018. An English speaking chamber within the Amsterdam District Court known as the Netherlands Commercial Court opened on 1 Jan 2019.

It appears from the website, A practitioner's guide to commercial litigation in the Netherlands, that the Netherlands Commercial Court has both original and appellate jurisdiction. Unlike the recently established English speaking courts in Abu Dhabi, Doha, Dubai and Nur Sultan, the Netherlands Commercial Court is a civil law jurisdiction which will apply Dutch substantive and procedural law.  Dutch procedural law provides a number of extraterritorial interim remedies that are not available in other jurisdictions and litigation in the Netherlands is believed to be considerably less expensive than in most common law jurisdictions.   Perhaps most importantly, Regulation 1215/2012 will continue to apply to the Netherlands after the 31 Dec 2020.

According to its list of judgments, the Court has given 6 judgments since it opened.   That may not sound a lot but it is a new jurisdiction with which foreign lawyers and businesses have had very little time to be acquainted.   I have just subscribed to its mailing list and will monitor its progress.  Anyone wishing to discuss this article should call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.

Brexit Briefing July 2020


Standard YouTube Licence

Jane Lambert

Talks between negotiators for the British government and the European Commission continued throughout July with no signs of a breakthrough on the four stumbling blocks identified by Michel Barnier in his statement of 2 July 2020 which I mentioned in my June Brexit Briefing

However, others have found some signs of hope.  Phil Hogan, the Trade Commissioner told The Guardian that British negotiators have begun to engage on the issues in the last week or two and that there has been "a change of attitude" from No 10 "after pressure from business" (see Daniel Boffey UK negotiators have only engaged with issues 'in last week or two', says EU 29 July 2020 The Guardian).  Charles Grant, Director of the Centre for European Reform, wrote I'm optimistic about a Brexit deal – despite the gloomy outlook in the same newspaper that same day. 

We shall have to wait and see.  If there is any substance to those reports it will be ironic because it was supposed to be German carmakers and Italian white goods manufacturers who were supposed to force concessions from the EU and not the other way round.

On 15 July 2020, the Cabinet Office published images, branding and other communication resources for the UK Transition campaign in England, Wales, Scotland and Northern Ireland to prepare the public and industry for the changes that will occur on 1 Jan 2021 (see Cabinet Office UK Transition communications resources 15 July 2020).

It is believed that trade negotiations are continuing with the governments of a number of countries on new free trade and other agreements but very little news on their progress has been published by the Department for International Trade or their negotiating partners.  The only one of those negotiations that is likely to lead to an agreement by 31 Dec 2020 is the proposed free trade agreement with Japan which will be with Japan.  The proposed agreement will be similar to the one that Japan has negotiated with the EU.

The Department for International Trade has introduced a Trade Bill which had its first reading in the House of Lords on 21 July 2020.  The purpose of the bill is "to make provision about the implementation of international trade agreements; to make provision establishing the Trade Remedies Authority and conferring functions on it, and to make provision about the collection and disclosure of information relating to trade."  It consists of 14 clauses and 5 schedules.  A set of Explanatory Notes is available on the British Parliament's website.1

Anyone wishing to discuss this briefing or any of the topics mentioned in it is welcome to call me on 020 7494 5252 or send me a message through my contact form.

Monday, 13 July 2020

European Commission - "Getting Ready for Changes"

By Rolf Süssbrich - Own work, CC BY-SA 3.0, 

https://commons.wikimedia.org/w/index.php?curid=863700













Jane Lambert

On 9 July 2020, the Commission published a communication entitled Getting ready for changes Communication on readiness at the end of the transition period between the European Union and the United Kingdom to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (COM(2020) 324 final).  While negotiations for a new relationship between the UK and the EU are intensifying the communication nites that even if the parties were to conclude an ambitious partnership covering all areas agreed in the Political Declaration such an agreement would create a relationship which will be very different from the United Kingdom’s participation in the EU Single Market and Customs Union, and in the VAT and excise duty area.  It will inevitably create barristers to trade in goods and services and cross-border mobility and exchanges that do not exist today.

The communication considers the changes that will be required in the following sectors:
  • Trade in goods
  • Trade in services
  • Energy
  • Travel and tourism
  • Mobility and social security coordination
  • Company law and civil law
  • Intellectual property
  • Data protection
  • International agreements.
For each of those topics, there is a statement of principle followed by "Advice to Businesses and Member State Administrations".   For "Intellectual Property", for instance, there is a statement that the exhaustion of rights principle will continue until 31 Dec 2020.  That is followed by the warning:
"As of 1 January 2021, traders in the European Union can no longer invoke exhaustion vis-àvis right-holders when sourcing products from the United Kingdom."
The advice to Businesses and Member State Administrations is:
"Businesses engaged in parallel trade from the United Kingdom should re-visit their business arrangements."
The communication also notes that while existing EU unitary intellectual property rights (EU trade marks, Community designs, Community plant variety rights and geographical indications) remain protected under the Withdrawal Agreement, any new EU unitary rights will have a reduced territorial scope as they will no longer have effect in the UK.

The British government has also started a publicity campaign to prepare the public for these changes.  Yesterday it distributed by email to my and other subscribers an op-ed that the Rt Hon Michael Gove MP had published in The Daily Telegraph entitled "Outside the EU, a bright future awaits Britain."

Anyone wishing to discuss this article or the legal consequences of the end of the transition period should call my clerk, Stephen, on 07986 948267 or send me a message through my contact page.

Thursday, 9 July 2020

European Circuit Webinar "IP Litigation post Brexit"

Author Jtdi  Copyright waived by the author
















Jane Lambert

Yesterday I attended a webinar entitled "IP Litigation post-Brexit". It was presented by the European Circuit which is an association of advocates across the European Union and beyond modelled loosely on the Circuits of the Bar of England and Wales. The webinar was opened by the Leader of the Circuit, Mr Colm Ó hOisín SC. It was chaired by Ms Margaret Gray SC. The speakers were Nicholas Saunders QC of Brick Court, Jonathan Newman SC and Sir Robin Jacob.

The questions that I hoped might be addressed in this webinar were "What is to become of the Unified Patent Court?" and "What is to happen to cross-border litigation after Regulation (EU) No 1215/2012 ceases to apply to the UK?"  The first question was addressed because I asked it as did Fidelma Macken.  Sadly, nobody raised the second.

Mr Saunders noted that a vast volume of EU legislation has been absorbed into the laws of the United Kingdom.  From 1 Jan 2021 judges in this country will no longer refer points of law relating to that legislation to the Court of Justice of the European Union under art 267 of the Treaty on the Functioning of the European Union.  As British judges will have to do that for themselves he did not think it would be long before noticeable divergencies in the interpretation of the same instrument emerged.

Mr Newman agreed and opined that Irish courts would become less and less likely to follow English decisions as a consequence.  However. most of his presentation focused on the Commercial Court of the Republic of Ireland. and a proposal to create an intellectual property list within that Court. Sir Robin said that Ireland had a great opportunity as the main common law jurisdiction to take much of the work that will no longer go to London but it was an opportunity that Ireland was in danger of losing.  Ireland had yet to ratify the Unified Patent Court Agreement and failed to send judges to judicial forums.   The Netherlands was also a small country but the Dutch courts and lawyers had made a big contribution to the development of European IP law.

On the question of what will happen to the Unified Patent Court, Sir Robin thought that the agreement will have to be renegotiated.   Annex II of the Agreement allocated chemistry and pharmaceutical work to London. Sir Robin doubted whether businesses in those industries would want to litigate their disputes in Milan.  Judges and lawyers from the UK had contributed massively to the preparations of the Court including the procedural rules.  He was saddened by his country's withdrawal from the project and believed that the UK would be missed.

Although I enjoyed the presentations I think the webinar would have been improved greatly by contributions from IP Bar Association, the IP Lawyers Associations and the Chartered Institutes of Patent and Trade Mark Attorneys.  Sir Robin suggested that the Irish might send for Mr Justice Birss who would be an excellent speaker.  Perhaps, Lord Justice Arnold might be even better as it was he who reformed the Patents County Court and created the Small Claims Track.

Anyone wishing to discuss this article or any of the topics mentioned in it should call my clerk on  07986 948267 or send me a message through my contact page.

Saturday, 4 July 2020

Brexit Briefing June 2020

By NuclearVacuum - File:Location European nation states.svg, CC BY-SA 3.0, 

https://commons.wikimedia.org/w/index.php?curid=8087888




















Jane Lambert

Art 126 of the Agreement on the withdrawal of theUnited Kingdom of Great Britain and Nothern Ireland from the EuropeanUnion and the European AtomicEnergy Community ("the withdrawal agreement") provides for a transition or implementation period, which shall start on the date of entry into force of that agreement and end on 31 Dec 2020.  During that period, EU law continues to apply to the UK under art 127 thereby enabling it to remain in the customs union and single market. That period could have been extended by up to 2 years by virtue of art 132 had the British government so wished but that opportunity lapsed on 1 July 2020.

The other significant event that occurred on 1 July is that Germany assumed the presidency of the European Union from Croatia and it is clear from the German presidency website that brexit is not a priority for the German government.  Talks between negotiators for the Commission and British government have not gone well.  Negotiations in Brussels that were supposed to last from 29 June to 3 July 2020 broke up early (see Statement by Michel Barnier following the restricted round of negotiations for a new partnership between the European Union and the United Kingdom of 2 July 2020).

According to Monsieur Barnier, the sticking points are:
"1, robust guarantees for a level playing field – including on state aid – to ensure open and fair competition among our businesses;
2. a balanced, sustainable and long-term solution for our European fishermen and women;
3. an overarching institutional framework and effective dispute settlement mechanisms."
In a speech to the General Assembly of Eurofi on 30 June 2020, Monsieur Barnier mentioned a fourth on the regulation of financial services. In his view"the UK is trying to keep as many Single Market benefits as it can. It would like to make it easy to continue to run EU businesses from London, with minimal operations and staff on the continent."  He observed:
"The UK chose to no longer be a Member State. It chose to leave the EU Single Market and stop applying our common ecosystem of rules, supervision and enforcement mechanisms. In particular, it refuses to recognise any role for the European Court of Justice.  These choices have consequences. The UK cannot keep the benefits of the Single Market without the obligations."
Negotiations between the Commission and the British government are continuing  There will be informal discussions this week and a further round of formal negotiations in the week commencing 20 July 2020.

The British government has opened negotiations to accede to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership ("CPTPP") which is essentially the Trans-Pacific Partnership without the United States.  It is also conducting bilateral negotiations with Australia, Japan and New Zealand which are members of the CPTPP and well as with the USA.  I have opened a new CPTPP page to monitor the accession negotiations as well as the new partnership negotiations with the EU. I can report very little that is new with bilateral negotiations.

Anyone wishing to discuss this briefing should call my clerk, Stephen Somerville, on +44(0)7986 948267 or send me a message through my contact page.

Thursday, 18 June 2020

Barnier's Speech to the EESC - Some Uncomfortable Home Truths


Standard YouTube Licence


Jane Lambert

On 10 June 2020, Michel Barnier, the Head of the Commission's Task Force for Relations with the UK, delivered an important speech to the plenary session of the European Economic and Social Committee ("EESC"). The reason it is important for business in the UK is that it spells out the limits to the concessions that the EU can afford in its negotiations with the British government for a new relationship.  The speech has not attracted much attention from British politicians or media, possibly because the first and perhaps more important part was delivered in French.

Before considering the speech it is worth considering the audience to which it was delivered.  The EESC's website describes the Committee as "the voice of organised civil society in Europe."  The EESC is established by art 300 (1) of the Treaty on the Functioning of the European Union to assist the European Parliament, Council and Commission in their functions.  Art 300 (2) provides that the EESC "shall consist of representatives of organisations of employers, of the employed, and of other parties representative of civil society, notably in socio-economic, civic, professional and cultural areas." The institutions are required to consult it when considering new legislation.  Monsieur Barnier began his speech by saying that for his part he regards the EESC as an important partner in the new relationship negotiations because brexit has consequences for the unions, businesses and citizens that the Committee represents.

He expressed the wish to build a solid partnership with the UK which he described as a "great neighbouring country, friend and ally" and that such a partnership was more necessary than ever in the present economic and geopolitical circumstances.  He acknowledged the history, values and interests that the UK shared with the rest of Europe. His aim was to secure an agreement - but not at any price.  The UK no longer wishes to be a partner in the European project and is positioning itself as a competitor. Monsieur Barnier acknowledged that there is nothing wrong with competition so long as that competition is fair and equitable.  The negotiations over the last 4½ months have been essentially over where to strike a balance between the ambition for a new partnership and the reality that the UK is now a competitor. Because of the size of its economy and geographical proximity, the UK cannot be compared to countries like Canada, Japan and South Korea,  For that reason, it cannot expect a similar free trade agreement.

The negotiations which have been conducted by video conference concurrently on all topics have hit four stumbling blocks, namely:
  • the need for a level playing field
  • fishing
  • judicial cooperation in criminal matters, and
  • future governance of the relationship.
Some progress has been made on those matters but not much.

Monsieur Barnier was disappointed by the UK's lack of commitment in foreign and defence matters, measures against money laundering and cybercrime, and parliamentary and other consultation on matters relating to free movement and social inclusion even though they were included in the Political Declaration which was signed by Boris Johnson.  The EU was not asking for anything more than had already been agreed.

The negotiations are now at a crunch point because important deadlines are approaching. The Britsih government has refused any extension to the transition period even though the EU is willing to agree to one.  On the assumption that there will be no extension, Monsieur Barnier had proposed intensification of negotiations to David Frost to make the best use of the time remaining.

However, his negotiating mandate required any agreement to be fair and equitable in relations to competition.  The terms that had been offered went much further than previous agreements with third countries and covered not just goods but services and investments.  The EU could not allow access to its market of 450 million without cast-iron guarantees of a level playing field.  On this point, he is willing to seek compromises but he was not willing to renegotiate points that had already been agreed in the Political Declaration.

The rest of Monsieur Barnier's speech is in English and contains some uncomfortable home truths.

There can be no cherry-picking of single market benefits.  The UK's financial and professional services industries have done very well out of EU membership.  The country has also benefited from being a certification and regulatory hub and entry point for the single market.  He gave the following warning:
  • "Do we really want to consolidate the UK's position as a certification hub for the EU, knowing that it already controls some 15%-20% of the EU certification market?
  • Do we really want to take a risk with rules of origin that would allow the UK to become a manufacturing hub for the EU, by allowing it to assemble materials and goods sourced all over the world, and export them to the Single Market as British goods: tariff- and quota-free
  • Do we really want the UK to remain a centre for commercial litigation for the EU, when we could attract these services here?"
He added:
"When considering our options, we need to look beyond the short-term adaptation costs, to our long-term economic interests.
Even more so in the context of ensuring Europe's economic recovery after the Coronavirus crisis."
Referring no doubt to Mr Frost's letter of 19 May 2020 which I mentioned in Better Late than Never - The UK Counter Proposals in the New Relationship Negotiations 19 May 2020, Monsieur Barnier said that the UK insists that it is asking for nothing more than well-established precedents but the truth is that, in many areas, it is demanding a lot more than Canada, Japan or any other free trade agreement partners.  In many areas, it is looking to maintain the benefits of being a member state without the obligations of membership.  He gave the following examples:
  • "To maintain almost complete freedom of movement for short-term stays for UK service providers;
  • To maintain a system for the recognition of professional qualifications that is as complete and broad as the one we have in the European Union;
  • To have its customs rules and procedures recognised as equivalent, while refusing to commit to the necessary compliance checks and monitoring, or alignment to EU rules where necessary.
  • To be able to co-decide with the Union on decisions relating to the withdrawal of equivalences for financial services, when they know these are – and must remain – our own, autonomous decisions."
He emphasized that the UK chose to become a third country and cannot have the best of both worlds. The concessions sought by the UK are not in the long term interests of the EU.  Provisions in earlier free trade agreements were the result of negotiations and cannot be extended automatically to an agreement with the UK.  No free trade agreement can ever be as good as EU membership.

Monsieur Barnier also warned of some of the consequences of leaving the EU that will come about on 1 Jan 2021 whatever the outcome of the new relationship negotiations:
  • "UK firms will lose the benefit of the financial services passports.
  • As a third country, the UK will no longer be able to grant marketing authorisations for pharmaceuticals or type-approvals for cars for the EU market.
  • There will be customs formalities for all goods entering the EU customs territory.
....... No FTA – no matter how ambitious – can change this."
He expressed the EU's position as follows:
"Simply: we will never compromise on our European values or on our economic and trade interests, to the benefit of the British economy."
Replying to criticisms that the EU's positions are unreasonable, he said:
  • "But they are only unreasonable for those who refuse to accept that Brexit has negative consequences for the UK.
  • They are only unreasonable if your starting point is that the EU should not have the sovereign power to define its own conditions for giving access to its own market."
In his view, member states were unlikely to change his negotiating mandate and any new partnership agreement would also be contingent on the UK's implementation of the withdrawal agreement, particularly with regard to Northern Ireland and citizens' rights.

Monsieur Barnier hoped that expected high-level discussions with the Prime Minister would provide a new political impetus to the talks.  Discussions between the Prime Minister and Presidents of the Council, European Parliament and the Commission did indeed take place on 15 June 2020.   A communique issued by the Commission on 15 June 2020 accepted the recommendations for intensified negotiations but also emphasized the need for full and timely implementation of the withdrawal agreement.

I have added Monsieur Barnier's speech and the Commission's communique and this article to my page on the future trade negotiations with the EU.  As it seems to me that regardless of the outcome of those negotiations there will be a need to develop new markets, I have updated my page on negotiations with Japan and opened new pages on negotiations with Australia and New Zealand.  Although relations with China have deteriorated lately I hope that British firms may still win some business from the Belt and Road initiative. I have therefore opened a Belt and Road Initiative page.  If British financial services firms lose business in the EU as a result of a loss of passporting rights one possible new market is the Astana International Financial Centre in Kazakhstan which I mentioned in An English Language Common Law Court in Kazakhstan 10 June 2020 NIPC Law. That Centre is modelled on similar financial centres in Abu Dhani, Dohar and Dubai which I cover in NIPC Gulf.

Anyone wishing to discuss this article or any of the topics mentioned in it should call  my clerk Stephen Somerville on +44(0)7986 948267 or send me a message through my contact page

Saturday, 6 June 2020

Michel Barnier's Statement at the End of the Fourth Round of Negotiations

Michel Barnier
By Foto-AG Gymnasium Melle,
CC BY-SA 3.0,















Jane Lambert

As I said in my May Brexit Briefing, a fourth round of talks between British and Commission negotiators was scheduled for the 2 to 5 June 2020.  They have now taken place and a statement has been made on their progress by Michel Barnier (see Statement by Michel Barnier following Round 4 of negotiations for a new partnership between the European Union and the United Kingdom 5 June 2020).

On its face, it does not make very encouraging reading.  Monsieur Barnier said that there were four big sticking points, namely:
  • "Fisheries, and free and fair competition, the so-called ‘level playing field' – two essential elements of the new economic partnership we want to build;
  • Guarantees protecting people's fundamental rights and freedoms needed to underpin a close police and judicial cooperation in criminal matters;
  • And finally, the governance of our future relationship."
On none of those issues, according to Monsieur Barnier, has there been any significant progress.  He complains that the British wish to renegotiate the Political Declaration setting out the framework for the future relationship between the European Union and the theUnited Kingdom which the Prime Minister signed and expressed concerns as to the implementation of the Northern Ireland Protocol to the Withdrawal Agreement.

There has been no parallel statement from the British side.  As I said in my comments on the British counterproposals and Brexit Briefing a lot more work has been done on the British side than might be expected for mere window dressing. Nevertheless, Andrew Bailey, the Governor of the Bank of England has warned business leaders to prepare for the present transition or implementation period to expire without an agreement (see Ryan Weeks Bank of England governor tells banks to brace for no-deal Brexit – report 3 June 2020 Financial News).

I have added Monsieur Barnier's speech and my comments to my EU negotiations page. I am also monitoring the UK's negotiations for free trade agreements with the USA and Japan.  Despite the deteriorating relationship with China over Huawei, Hong Kong and responsibility for the pandemic I am minded to monitor China's Belt, Road Initiative ("BRI").  The BRI is a massive infrastructure project over the next 30 years for which British businesses and their professional advisors are well placed to win contracts.  I am under no illusions as to the nature of the present Chinese leadership but while countries' interests remain constant governments and policies can and do change.

Anyone wishing to discuss this article or any of its topics should call my clerk Stephen Somerville on 07986 948267 or send me a message through my contact page.

Tuesday, 2 June 2020

Brexit Briefing May 2020

By ClemRutter, Rochester, Kent. - Own work,
CC BY 2.5, https://commons.wikimedia.org/w/index.php?curid=2163988




















Jane Lambert

A lot happened in May.  Mr David Frost presented British proposals for a comprehensive free trade agreement with accompanying agreements on various other matters (see Jane Lambert Better Late than Never - The UK Counter Proposals in the New Relationship Negotiations 19 May 2020). Michel Barnier answered David Frost's shrill and petulant covering letter from David  Frost of 19 May 2020 with a firm but measured and courteous response the very next day. The British government resumed its negotiations with the USA for a free trade agreement on 5 May 2020 and published its proposals for a free trade agreement with Janan.

The British proposals are structured very differently from the draft agreement of 18 March 2020 but they are a substantial set of documents and contain many provisions upon which the Commission ought to be able to agree.  It is said that Mr Frost's letter irritated many on the continent but they will be aware that Mr Frost and his political masters have an audience of Conservative backbenchers and a Eurosceptic press.  Another round of negotiations begins today on an agreed agenda.  For the first time since negotiations began, both sides' proposals have been exchanged.

If there is to be an extension to the 11th-month transition or implementation period it has to be agreed in June. A bill to extend that period has been introduced into the House of Commons by Sir Edward Davey, acting leader of the Liberal Democrats. It is supported by the Scottish National Party, Plaid Cymru, the Green Party, the Alliance Party and the Social Democratic and Labour Party in Northern Ireland but not the Labour Party and it has been welcomed by Monsieur Barnier in a letter dated  25 May 2020 (a copy of which can be downloaded from this blog's EU negotiations page.  Labour's reticence has surprised some but it can probably be explained by the fact that he party under its new leader is doing rather well in the polls and sees no advantage in picking fights that it can't win,

Many commentators are gloomy about the outcome of the new relationship negotiations but I am not so sure.  A lot of work has been done on the British draft agreements which would have been pointless had they been intended to fail. The UK needs continued access to the single market more than its negotiators concede because there is no obvious alternative. With the highest number of coronavirus deaths in the world and record unemployment, the US economy is in an even worse mess than ours.  It now has race riots in its major cities with which to contend.  Relations with the other economic superpower have deteriorated still further with the Chinese government's clampdown on Hong Kong.

Anyone wishing to discuss this article or the new relationship negotiations, in general, should call 020 3819 8725 while lockdown continues or message me through my contact form

Tuesday, 19 May 2020

Better Late than Never - The UK Counter Proposals in the New Relationship Negotiations





















Jane Lambert

In my Brexit Briefing for April 2020, I wrote that Monsieur Barnier had come close to accusing British officials of negotiating in bad faith for not discussing commitments that their government had made in the Political Declaration except in the most general terms and by responding to a draft treaty that the Commission had proposed on 18 March 2020 with a number of text proposals which Monsieur Barnier has been asked not to share with the member states or the European Parliament. He was scarcely less critical in his remarks after round 3 of the negotiations on 15 May 2020.

By a letter dated 19 May 2020, Mr David Frost who described himself as our "Sherpa and EU Advisor" addressed some of Monsieur Barnier's concerns. The letter enclosed a 291-page draft Comprehensive Free Trade Agreement ("the CFTA"), a policy document entitled The Future Relationship with the EU, several draft annexes to that agreement and draft agreements on fisheries, air transport, civil aviation safety, energy, social security coordination, civil nuclear energy, law enforcement and judicial cooperation on criminal matters, transfer of unaccompanied asylum-seeking children and readmission of people residing without authorization,

In his letter, Mr Frost agreed to the sharing of the letter and draft agreements with the governments of the remaining member states.  He added:
"We are making the texts public as a constructive contribution to the negotiations, and in particular as a response to your suggestions in the last two Rounds that it would help you explain our proposals in more detail to Member States. We are very clear that we are not seeking to negotiate directly with Member States and that it is for you, as the EU’s negotiator, to manage any differences of perspective that may emerge. I hope that today’s publication will facilitate that work and clear up any misunderstandings about the purpose and effect of what we have put to you."
 The text of the British proposals replicates many of the provisions of the EU's free trade agreements with other countries such as Canada, Japan and South Korea. In Mr Frost's words:
"our legal texts draw on precedent where relevant precedent exists (and we have made pragmatic proposals where it does not, for example on road transport or energy cooperation). So, for example, our draft FTA approximates very closely those the EU has agreed with Canada or Japan. Our draft fisheries agreement is very close to the EU/Norway Agreement. Our aviation proposals are similar to those the EU has agreed with other third countries. Our draft civil nuclear agreement is very close to similar cooperation agreements that Euratom (and indeed the UK) has concluded with other third countries. And so on."
The rest of the letter complains of the structure of the 18 March draft:
"Overall, at this moment in negotiations, what is on offer is not a fair free trade relationship between close economic partners, but a relatively low-quality trade agreement coming with unprecedented EU oversight of our laws and institutions"
Mr Frost concludes:
"I remain convinced that it would be very straightforward for us to agree a modern and high-quality FTA and other separate agreements, like those you have agreed with other close partners around the world, and that we could do so quickly."
The draft CFTA is a substantial document consisting of 34 chapters and the policy document is a detailed explanatory note.  Chapter 24 on intellectual property, for example, is 27 pages long.  It is a serious negotiating document and a much better offering from the HM government than I had expected.  How far or indeed whether. it will appeal to the other side remains to be seen.  The point has already been made that the UK economy is bigger than that of most other states with which the EU has made free trade agreements and that it is closer than any of them.

Anyone wishing to discuss this article or any of the topics mentioned in it may message me through my contact form.  I will reply by email, phone or video.

Friday, 8 May 2020

Brexit Briefing April 2020

Author NIAID Licence CC BY 2.0
















Jane Lambert

The world has changed since 23 June 2016 and indeed much of that change has occurred since 12 Dec 2019. The United States and the United Kingdom have suffered more deaths from CORVID-19 than any other country and a severe contraction of economic activity. The virus has affected other large countries but not to the same extent.  The other significant event that occurred in April was the announcement that China had overtaken the USA in the number of applications for patents through the Patent Cooperation Treaty for the first time ever (see WIPO PR/2020/848 7 April 2020).  In terms of domestic applications, China is considerably further ahead.  That country filed 1.5 million applications compared to the USA's 597,000 {see World Intellectual Property Indicators 2019 -Patents WIPO 2019).

Despite those changes, British officials are quietly pursuing negotiations that are likely to result in trade barriers with the UK's nearest and largest market from 31 Dec 2020 and an American administration in an election year that is struggling to control the pandemic and the resulting economic downturn.  Such policy would, of course, be justified by the 2016 referendum result and the 2019 general election though it is probably the case that the government won with remainder votes who were more afraid of Corbyn than they were of brexit.

The new relationship negotiations resumed in April as I noted on 18 April 2020 in Barnier and Frost talk at last and two rounds have actually taken place. In a press statement by Michel Barnier following the second round of future relationship negotiations with the UK on 24 April 2020, the EU chief negotiator warned of
"two very real deadlines that we are faced with and which have been set by law:
  • 30 June 2020: Will we decide or not, before that date, and by joint decision with the British, to extend the transition period, according to the possibility that is foreseen in the Withdrawal Agreement?
  • And, 31 December 2020 – the date of the ‘economic Brexit', following the ‘political Brexit' that took place at the beginning of this year: On this date, which will bring important and definite changes in many areas, will the United Kingdom leave the Single Market and Customs Union with or without an agreement with the EU?"
By a circular dated 29 April 2020, the Commission announced that it had reviewed and updated the plans that it had made for a British departure from the EU without a withdrawal agreement and has set them out in a number of sector readiness notices that can be found on its Getting ready for the end of the transition period page.

In his statement, Monsieur Barnier came close to accusing British officials of negotiating in bad faith. In the Political Declaration that accompanied the withdrawal agreement, both sides made commitments for the future framework that British negotiators refused to discuss except in the most general terms.  There is concern that the British government is failing to implement the provisions of the withdrawal agreement that would enable the border between Northern Ireland and the Republic of Ireland to remain open.  In order to monitor such implementation, the Commission has sought permission to open a representative office in Belfast which was refused by the Paymaster General on 27 April 2020 (see the letter from the Rt Hon Penny Mordaunt MP to Helga Schmid and Michel Barnier).  Further, the only British response to the draft treaty that the Commission proposed to the UK on 18 March 2020 has been a number of text proposals which Monsieur Barnier has been asked not to share with the member states or the European Parliament.

Negotiations began with the US Trade Representative on a trade agreement with the USA on 5 May 2020 after a two-month break with platitudinous statements on both sides (see Joint Statement of UK International Trade Secretary Liz Truss and USTR Robert Lighthizer  5 May 2020 Department for International Trade and Statement of USTR Robert Lighthizer on the Launch of U.S.-UK Trade Negotiations 5 May 2020 Office of the US Trade Representative).   It is worth remembering that any deal with the USA will have to be approved by the US Senate which will have concerns if a largely US brokered peace deal in Northern Ireland breaks down as a result of the failure to honour the commitments on Northern Ireland in the withdrawal agreement.

I shall be updating the EU new partnership negotiations page and the US trade agreement negotiations page.  Ideally, there should be a page on British involvement with the one belt one road initiative and the UK's relationship with China which is already providing much of the investment and technology for the UK's next generation of nuclear power stations, high-speed rail and 5G mobile communications but at the moment that relationship seems to be going nowhere.  Anyone wishing to discuss this article or any of the issues raised in it should call 020 3819 8725while lockdown continues or message me through my contact form.

Thursday, 16 April 2020

Barnier and Frost talk at last

Foto-AG Gymnasium Melle / CC BY-SA
(https://creativecommons.org/licenses/by-sa/3.0)


























Jane Lambert

Negotiations for a new partnership between the Europen Union and the United Kingdom took place in Brussels between 2 and 5 March 2020 (see Negotiation rounds on the future partnership between the European Union and the United Kingdom).  Those negotiations were due to continue through March and April 2020 as set out in the Terms of Reference on the UK-EU Future Relationship Negotiations). For various reasons, those negotiations did not resume until 15 April 2020.

According to a Joint statement by EU and UK negotiators following the videoconference on 15 April 2020, the two sides took stock of the technical work that has taken place since the first negotiating round on the basis of the legal texts exchanged by both sides.  The reference to an "exchange of texts" is interesting because the public was aware of a draft agreement that had been proposed by the Commission on 18 March 2020.  The initial British response was that a legal text covering the outstanding areas would be produced at a time of the British government’s choosing  (see Jane Lambert EU's Draft Agreement on a New Partnership with the UK 29 March 2020).  That text, which is still to be published, apparently contained major areas of convergence as well as divergence.

The negotiators agreed to continue negotiations by video conference on the weeks commencing 20 April, 11 May and 1 June. Each negotiating round will last a week rather than the much shorter periods set out in Annex B to the Terms of Reference.

The parties also welcomed the first meeting of the Joint Committee (Implementation of the Withdrawal Agreement - Joint Committee's First Meeting  31 March 2020) and that the proper and timely implementation of the withdrawal agreement including the Northern Ireland Protocol was a key priority for both sides.

Also on 15 April 2020, the Managing Director of the IMF called for the negotiating period to be extended beyond the 31 Dec 2020 because of the "unprecedented uncertainty" arising from the pandemic.  Mr Frost tried to slap down any suggestion of this kind on twitter:
Well that may be Mr Frost's view and it is possibly even his instructions but the world has changed. Coronavirus has laid waste to Italy and Spain but the damage to those countries is greatly exceeded by the loss of life and economic destruction that it has wrought in the USA. America is in no position to make good our restricted access to the European single market. When the facts change maybe the policy should change with them.

Anyone wishing to discuss this article may call me my clerk Stephen Somerville on 07986 948267 or send me a message through my contact form.

The Netherlands Commercial Court - an English Speaking Court in Amsterdam

By Stephencdickson - Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=72838371 Jane Lambert On 28 Jan ...