Thursday, 23 September 2021

Change of Focus

Winkel triple projection SW.jpg
Author Daniel R Strebe 15 Aug 2011 Copyright waived  Source Wikimedia Commons

Jane Lambert

During the 2016 referendum campaign, I wrote that the United Kingdom's withdrawal from the European Union would profoundly affect the laws that protect investment in branding, design, technology and creativity (see Were we to go - what would Brexit mean for IP 26 Feb 2016 NIPC Law). I noted that the nature and extent of that change would "depend on the sort of relationship with the rest of the EU that we could negotiate in the two years allowed by art 50 (2) of the Treaty on European Union." After a plurality of voters had voted for withdrawal, I followed those negotiations in this blog in order in order to make an educated guess as to how this country's IP law would develop.

Although there may still be further negotiations between the UK and the European Commission over the Northern Ireland Protocol for the reasons I discussed in British Proposals for Renegotiating the Northern Ireland Protocol on 29 July 2021, they are unlikely to result in major changes to this country's IP laws.  The legal framework following Brexit is set out in my article How Brexit has changed IP Law of 17 Jan 2021 and presentation of 26 Jan 2021 (slides and notes).

While bilateral treaties such as the Comprehensive Economic Partnership Agreement with Japan and the proposed Australia-UK Free Trade Agreement contain provisions on intellectual property, it is unlikely that any of them will require amending legislation. What might are the intellectual property provisions of the Trans Pacific Partnership which are incorporated by reference into the Comprehensive and Progressive Agreement for the Trans-Pacific Partnership and Chapter 20 of the Agreement between the United States of America, the United Mexican States, and Canada, the successor to the North American Free Trade Agreement.   I shall therefore focus in future on those developments rather than bad-tempered exchanges arising from the withdrawal and trade and cooperation agreements. 

HMG has embarked on a great experiment of decoupling from neighbours and allies with shared interests in the world's richest trading bloc and forming new relationships with fast growing economies on the other side of the world.  It is by no means certain that that experiment will succeed and my change of focus should not be seen as an endorsement of the experiment. But it is more relevant to the startups and other SME and their professional advisors that form the bulk of my clientele and require practical advice on IP prosecution, licensing and enforcement in the UK and any new markets that may open up as a result of the government's activities.

To reflect the change of focus I shall change the name of this publication from "NIPC Brexit" to "NIPC Internatiomal" and replace the monthly "Brexit Briefings" with targeted updates.   Anyone wishing to discuss this article may call me on +44 (0)20 7404 5252 during normal business hours or send me a message through my contact form.

Wednesday, 1 September 2021

Brexit Briefing - August 2021

British forces on their way to Kabul to assist with the evacuation
Author Ministry of Defence Licence OGL v 3  Source Wikimedia Commons

 









Jane Lambert

August was the month the government might have expected some positives from brexit.  An aircraft carrier strike group steamed through the South China Sea for the first time since 1968 when Denis Healey withdrew British forces from their bases east of Suez.  Business Secretary Kwasi Kwarteng published plans for the UK to become a science and technology superpower in 9 years time (see UK Innovation Strategy 12 Aug 2021 NIPC Inventors Club). Culture Secretary Oliver Dowden promised "a world-leading data regime" by "forging new global partnerships and designing our own common sense data laws" (see Dowden's Data Protection Plans 27 Aug 2021 NIPC Data Protection).

None of those announcements was noticed because attention has focused on the rapid collapse of a régime in defence of which 454 British service personnel lost their lives.  What will be remembered long after the fleet has returned to its base will be the emergency parliamentary debate on Afghanistan and, in particular, the words of the former Prime Minister:  "Where is global Britain on the streets of Kabul?" MPs and peers had harsh words for the United States and its government in that debate.  The US government gave as good as it got by inferring that the UK authorities were partly to blame for the casualties of the terrorist attack by insisting on keeping the Abbey Gate open.

There have been tensions and spats between the US and UK in the past as Philip Stephens noted in his article, Kabul retreat leaves the UK on a bridge to nowhere (26 Aug 2021 Financial Times).  These have been forgotten and forgiven as the UK stayed close to the only giant in Liliput.  But the decision of the last two presidents to withdraw from Afghanistan come what may has made that giant appear old and feeble, especially in contrast to the vigorous, youthful giant that is emerging in Asia.  The Chinese government's newspaper, Global Times, was not slow to question the strength of the US  commitment to Taiwan in the light of the evacuation from Kabul.  Aspiring to be Greece to America's Rome may have made sense during the pax Americana.   With the legions in retreat, it is much less easy to justify.

Although there are no immediate signs of it happening, August may be the month in which the British public begins to rediscover the advantages of collaborating with its neighbours.  When the Prime Minister argued in Parliament that the UK had no choice but to accept the American withdrawal, at least one MP asked why the government did not explore the possibility of working with other NATO allies to ensure an orderly withdrawal of nationals if not the continuation of the mission.  It is already clear that several of the UK's neighbours have overtaken the UK and other English speaking countries in vaccinating their citizens,  Also, none of them is suffering the distribution difficulties caused by the shortage of  HGV drivers with the ending of free movement of labour.   No amount of free trade agreements with countries on the other side of the world will solve those problems but closer cooperation with the EU might.

Anyone wishing to discuss this article may call me on 020 7404 5252 during office hours or send me a message through my contact form.

Monday, 23 August 2021

First Meeting of the Trade and Cooperation Agreement Partnership Council

Author Furfur Source Wikimedia Commons

 











Jane Lambert

Art 7 (1) of the Trade and Cooperation Agreement (Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part OJ L 149, 30.4.2021, p. 10–2539) establishes a Partnership Council consisting of representatives of the European Union and of the United Kingdom. Its purpose is to oversee the attainment of the objectives of the Agreement and to supervise and facilitate the Agreement's implementation and application.  The Council meets at the request of the EU or the UK, and, in any event, at least once a year.

The first meeting of the Council took place at Admiralty House on 9 June 2021 between 08:00 and 09:30.  It was attended by 44 delegates from the UK and 50 from the EU.  The British delegation was led by Lord Frost and Penny Mordaunt MP and consisted of representatives of the Scottish, Welsh, Northern Irish, Manx and Channel Island governments and civil servants. The EU delegation was led by Maros Šefčovič and consisted of Commission officials and representatives of the EU member states.

The reason I have not mentioned this meeting before is that the minutes were published on 20 Aug 2021. Accompanying those minutes are the agenda, a statement from Lord Frost on the meeting and a summary of the UK's new relationship with the EU.   According to Lord Frost,  the meeting took place in a constructive atmosphere and marked an important milestone in the UK's new relationship with the EU as friendly trading partners and sovereign equals.  He added:

"As regards the substance, the UK emphasised the need to continue and deepen our close cooperation on customs and on sanitary and phytosanitary measures and encouraged pragmatism, on both sides, to minimise the barriers to trade being faced. On fisheries, the UK made clear that it will exercise regulatory autonomy within its waters, while continuing to take pragmatic steps to ease the transition to the new arrangements for EU fishermen including on licences. The UK noted the good progress in the area of law enforcement generally, but that further steps were needed before all Member States were able to deliver on the commitments in the Agreement. The UK encouraged swift progress on the UK’s association to Horizon, Euratom and Copernicus. The UK also raised issues faced by touring performers and noted the ongoing work with Member States to try to resolve these issues."

Meetings have also taken place between members of three of the specialized committees which were established by art 8 of the Agreement.   

Anyone wishing to discuss this article may call me on 020 7404 5252 during office hours or send me a message through this form at other times.

Saturday, 7 August 2021

Brexit Briefing - July 2021

Christmas Truce 1914
Author Harold B Ronson Copyrightexpired Source Wikimedia Commons


















On the first Christmas of the Great War, the fighting paused to enable both sides to bury their dead.  At least one football match took place between opposing troops. Luxuries from food parcels were exchanged as well as other simple kindnesses.  The suspension by the Commission of legal proceedings against the British government for alleged breaches of the withdrawal agreement is reminiscent of that truce.  There has even been a football match with Germany which England conveniently won.

The Christmas truce of 1914 did not last long and there is no reason to believe that the slightly improved relationship between the UK and its neighbours will last any longer.  There have certainly been enough provocations from the British media from exaggerated indignation over the announcement of visa waiver fees to visit Schengen countries to David Gauke's article Dominic Cummings’s solution to the Irish border problem would have been disastrous on 29 July 2921 in The New Statesman alleging a plot to drive the Irish Republic out of the European Union or at least out of the single market.  

From a brexiteer perspective, such a plot is not as mad as it sounds. It would have avoided customs checks in the Irish sea and on the island of Ireland.  It might even have worked.  There has been a lot of ill-feeling between Britain and Ireland over the centuries but the United Kingdom and the Irish Republic share a common travel area, a common language, the common law, a parliamentary system of government, close economic ties and even closer family ones.  Relations between Dublin and Brussels have been strained over Irish tax incentives to attract US tech companies and they may become strained again if the recent consensus on taxation is ever implemented.  It is not entirely fanciful to suppose that a time may come when the peoples of the UK and Ireland may find that they have more in common with each other than they do with the Continent and that they have more to gain from cooperating with each other than with their continental neighbours.

The suspension of legal proceedings has been viewed by some as a sign of weakness on the part of the EU. It is said that the Commission has been spooked by the threat in Northern Ireland Protocol: the way forward to invoke art 16 of the Northern Irish Protocol. I have to say that I do not think that is very likely. As I explained in British Proposals for Renegotiating the Northern Ireland Protocol on 29 July 2021, art 16 is intended only to bring short term relief should the application of this Protocol lead to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade.  It can be compared to a force majeure clause in a commercial contract.  A more likely explanation for the suspension of legal proceedings is that civil servants on both sides like to take their family holidays in August.

In his foreword to Global Britain in a competitive age which I discussed in my article of 19 March 2021, the Prime Minister wrote:
"In 2021 the aircraft carrier HMS Queen Elizabeth, one of the two largest warships ever built for the Royal Navy, will lead a British and allied task group on the UK’s most ambitious global deployment for two decades, visiting the Mediterranean, the Middle East and the Indo-Pacific. She will demonstrate our interoperability with allies and partners – in particular the United States – and our ability to project cutting-edge military power in support of NATO and international maritime security. Her deployment will also help the Government to deepen our diplomatic and prosperity links with allies and partners worldwide."

That task force has now arrived in the Pacific to the irritation of the Chinese government that was to be expected:

"The threat to freedom of navigation could only come from the one who deploys a carrier strike group to the South China Sea half a world away and flexes its naval muscles to heighten the military tension in that region." (Chinese embassy in London quoted by Frank Gardner in China warns UK as carrier strike group approaches 30 July 2021 BBC website)

What was perhaps less expected was its lukewarm reception by the USA.  Katherine Hille reported that US Defence Secretary Lloyd Austin had suggested that the UK might be more helpful as an ally if it did not focus on Asia.  In a speech at an event in Singapore sponsored by the Institute of Strategic Studies, Mr Austin stressed that military resources were scarce and that the US and its allies had to work out the best way of sharing military burdens. “If for example, we focus a bit more here [in Asia], are there areas that the UK can be more helpful in other parts of the world?” he mused,  Hille opined that Mr Austin's remarks would come as a blow to HM government (see Katherine Hille Britain ‘more helpful’ closer to home than in Asia, says US defence chief 27 July 2021 Financial Times).

In addition to the negotiations to accede to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership which I mentioned in my Brexit Briefing for May 2021, the UK has become a dialogue partner to the Association of South-East Asian States (see the joint press release from the Foreign Office and the Department for International Trade UK becomes Dialogue Partner of the Association of Southeast Asian Nations 5 Aug 2021). The press release does not state what a "dialogue partner" actually does and it appears that the UK enjoyed that status through its membership of the EU until 31 Dec 2020.

Nevertheless, it is another quiet achievement for the Department for International Trade under Liz Truss, She is the minister who has escaped most of the criticism that has been levelled at the government.  Truss's department seems to be responsible for business with the EU now that the withdrawal and trade and cooperation negotiations are at an end.  It has published useful documents such as its guidance on EU business: data protection and copyright updated 9 July 2021.  Truss campaigned for the UK to remain in the EU in 2016 yet she has become the minister who has come closest to making brexit work. 

Anyone wishing to discuss this article or any of the topics discussed in it may call me on +44 (0)20 7404 5252 during office hours or send me a message through this form at other times.  

Thursday, 29 July 2021

British Proposals for Renegotiating the Northern Ireland Protocol

Author Heenah Licence CC BY-SA 4.0 Source Wikimedia Commons

 











Jane Lambert

The pickle in which HM government finds itself over the Northern Ireland Protocol to the agreement between the EU and the UK for the UK's withdrawal from the European Union was hardly unexpected. If there is to be regulatory divergence between the UK and the EU there have to be customs inspections and formalities somewhere.  If the re-establishment of customs posts on the border between the Republic of Ireland and Northern Ireland is unacceptable to this country's European and American allies, then inspections and formalities have to take place between Great Britain and both parts of the island of Ireland.

Immediately after the end of the implementation or transition period provided by art 126 of the withdrawal agreement, there was disruption in the supply of goods from Britain to Northern Ireland.  These led to street protests and calls for the denunciation of the Protocol if not the whole of the withdrawal agreement.  But there are signs that Northern Ireland retailers are sourcing more and more products from within Northern Ireland, the Republic or the rest of the EU.  That is, of course, weakening economic ties with Great Britain and strengthening ties with the Republic. Ultimately that could lead to the cession of Northern Ireland to the Irish Republic. While Irish unification would be welcomed by some in Great Britain it would be regarded as a calamity not only by Northern Ireland Unionists but also by many members of the British Conservative and Unionist Party.   

Mrs Theresa May was offered an arrangement similar to the Northern Irish Protocol but she rejected it on the ground that it was something that no British Prime Minister could accept.  That raises the question of why her immediate successor did just that.  Para 13 of the UK Government position paper Northern Ireland Protocol: the way forward (CP 502) published on 21 July 2021 offers the following explanation:

"However Parliament’s insistence in the BennBurt Act that the UK could not leave the EU without an agreement radically undermined the Government’s negotiating hand; and the final compromise, while delivering the fundamental aim of a clear Brexit, and recognisably based on the UK’s proposal, included several elements which would prove to cause difficulties subsequently: notably, though not only, the EU’s insistence on customs arrangements between Great Britain and Northern Ireland, with detail to be worked out subsequently; and the failure to provide for Northern Ireland’s consent to enter the arrangements."

That does not make a lot of sense.  Had the government's negotiating hand not been "undermined" the government would have been free to take the United Kingdom out of the EU without any agreement on anything including the border between the Irish Republic and Northern Ireland.  That would inevitably have led to border controls and probably security forces to protect them.

The doleful consequences of the Protocol are summarized in para 20 of the position paper:

"Supply chains have been disrupted and costs increased, with staff redeployed to deal with new bureaucracy, impacting investment and growth. Consumers have seen real impacts: at least 200 companies in Great Britain have stopped servicing the Northern Ireland market; plants and trees long-sourced from Great Britain can no longer be stocked in nurseries or garden centres in Northern Ireland; supermarkets have reduced their product lines due to the delays and barriers in moving goods; and the costs of deliveries for those who do serve the market have continued to increase. The effects are felt more broadly too. Medicines are at risk of discontinuation because the hurdles to clear to reach the small Northern Ireland market make supply unviable. And pet owners, including those reliant on assistance dogs, have faced the prospect of unnecessary vaccinations and treatments, and bureaucratic certification hurdles simply to travel within the United Kingdom."

If this is true, the Northern Irish Protocol is clearly not working for the benefit of British suppliers to Northern Ireland but that does not mean that consumers in that province are going hungry.  There are signs that supplies from Great Britain are being replaced by supplies from Ireland and other EU member states (see InterTradeIreland Cross-Border Trade & Supply Chain Linkages Report).

In the position paper, the government is threatening to invoke art 16 of the Protocol.   It is hard to see how that will help.  The first paragraph of the article provides:

"If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Protocol."

It would appear that "safeguard measures" taken under this article are to be proportionate, short-term and to be taken only in an emergency.  If such measures lead to an imbalance between the rights and obligations under this Protocol, the other party may take such proportionate rebalancing measures as are strictly necessary to remedy the imbalance in accordance with art 16 (2).  Extensive consultations are required before a party may resort to art 16.

The revision to the Protocol that the British government appears to want is inspection-free entry of goods that are intended for consumption in Northern Ireland and full controls for goods intended for the Republic and beyond.   How this would work is not clear because most exporters to the Republic would be expected to choose the M4 to Fishguard or the A55 to Hollyhead rather than the long drive to Cairnryan. The only advantage of the latter would be the opportunity to smuggle. 

The other concession that the government seeks is to remove the resolution of disputes from the jurisdiction of the Court of Justice of the European Union. As EU law applies to the Protocol it is unlikely that there can be much movement there.

Anyone wishing to discuss this article may call me on +44 (0)20 7404 5252 during normal business hours or send me a message through my contact form.

Tuesday, 6 July 2021

Brexit Briefing - June 2021

White Cliffs of Dover
Photochrom Film Collection  Copyright expired
 

















The transition or implementation period provided by art 126 of the agreement by which the UK left the EU expired on 31 Dec 2020 and commentators have been taking stock.   The British economy has not collapsed though some industries have reported difficulty,  On the other hand, the economy has not shown any signs of outperforming the economies of its continental neighbours.

Cabinet Office Policy Paper

The Cabinet Office has just updated a policy paper entitled Summary: The UK’s new relationship with the EU which it first published on 8 June 2021.  The policy paper purports to give an overview of what has changed, and what remains the same and refers to a special site at https://www.gov.uk/brexit for the detail.

Influence of EU Law

The first paragraph of that policy paper states that the UK has now left the EU Single Market and Customs Union which is entirely correct. It also claims that EU law no longer applies in the UK.  That is correct only in the sense that the British government no longer participates in EU legislation, courts in this country are not bound by decisions of the Court of Justice of the European Union and judges can no longer refer cases to the court under art 267 of the Treaty on the Functioning of the European Union. However, it ignores the incorporation of EU legislation and case law into the domestic laws of England, Wales, Scotland and Northern Ireland by the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020 and the continuing right of courts in this country to have regard to judgments of the Court of Justice that have been or may be delivered since the end of the transition period.  Moreover, anyone in the UK who wishes to invest in, trade with or even visit the EU must continue to comply with EU law. 

Travelling to the EU

The right of free movement which was ensured by art 3 (2) of the Treaty of European Union no longer applies to British nationals.  There are now new rules for visiting the EU which are set out in the Passports, Travel and Living Abroad pages of the government website. Travellers are advised to take out comprehensive travel insurance, check that their passports meet new validity rules, and get any documents they may need to take their vehicles with them.  

Existing European Health Insurance Cards ("EHIC") will continue to be recognized until they expire and similar benefits are promised under the Global Health Insurance Card ("GHIC").   Applications for new GHICs or replacements for the EHIC are directed to www.nhs.uk/GHIC but that link is broken.  The correct site is headed Applying for healthcare cover abroad (GHIC and EHIC).   As my EHIC expired on 21 June 2021 I applied for a GHIC through that website while carrying out research for this article.  I received confirmation that my application had been successful almost immediately.

Visitors from the UK are not allowed to bring a ham or cheese sandwich or indeed any other meat or dairy products with them when crossing the channel.  Almost all plants and plant products, including fruits, vegetables, flowers and seeds, require a phytosanitary certificate.  Pet passports can no longer be relied upon.  Although it is not mentioned in the policy paper, roaming charges are to be reintroduced from January 2022 (see Anthony Reuben EE to reintroduce Europe roaming charges in January 24 June 2021 BBC).  Regulation (EU) 2017/1128 on cross-border portability of online content no longer applies to the UK which means that British travellers can no longer access online content in the EU (see IPO Guidance Protecting Copyright in the UK and EU 30 Jan 2020).

Trade in Goods

Businesses now need to comply with new customs procedures, including UK export declarations and import requirements on entry to the EU.   Some industries have found it harder to adapt than others.   The Food and Drink Federation reported a 47% drop in exports in the first quarter of 2021 compared to the same quarter of 2020 (see Exports snapshot: Q1 2021).   On the other hand, sales to Australia, China, Hong Kong, Japan and Saudi Arabia actually increased slightly in that period.  

Difficulties had arisen in sales of certain foodstuffs to Northern Ireland which is now treated as part of the EU for some purposes but the Commission has agreed to extend a grace period for the export of chilled meats for the time being.  Lord Frost, who was one of the UK government's principal negotiators has admitted that he did not anticipate the difficulties that have arisen over Northern Ireland (see Government Didn't Expect Brexit To Be So Disruptive For Northern Ireland, David Frost Admits  Adam Payne 17 May 2021).  If that is really the case it is extraordinary because I warned of them in this blog as did many others in other publications (see Brexit Briefing March 2020 4 April 2020).  

One bit of good news in manufacturing was Nissan's announcement of a substantial investment in battery production in this country (see Nissan to create thousands of UK jobs in battery investment 29 June 2021 BBC website).  It is thought that the British government has invested or promised to invest a substantial sum in the project.  Even with this investment, battery production in the UK will be a fraction of that of Germany.

Trade in Services

The Trade and Cooperation Agreement did not make extensive provision for trade in services.   Talks did take place between Her Majesty's Government and the Commission on recognizing each other's standards as equivalent but these have ended without agreement (see Sunak: Financial services equivalence deal with EU 'has not happened 2 July 2021 The Guardian).   Happily, the Commission has recognized the UK's data protection legislation as broadly equivalent to its own which should ensure that the mutual exchange of personal data shall continue for the time being (see Jane Lambert Commission Adequacy Decisions 29 June 2021 NIPC Data Protection).
.   
There had been consternation earlier this year when Amsterdam appeared to overtake London in the trading of equities (see Philip Stafford Amsterdam ousts London as Europe’s top share trading hub 10 Feb 2021 FT).  London has recently recovered its position as the leading equity market (see Philip Stafford London reclaims top trading status from Amsterdam 2 July 29021 FT).  According to Stafford, London regained its lead through trading in Swiss stocks.

Free Trade Agreements

The rationale for Brexit is that the world's fastest-growing markets lie outside the EU and that any loss of trade with mainland Europe can be more than offset by increasing trade elsewhere. It is argued that commodity prices are lower ln world markets than in the EU because there are no external tariffs and that British negotiators can obtain more favourable trade deals for the British economy than EU negotiators because British interests no longer have to be weighed against those of other EU member states. So far, most of the agreements that the British government has concluded with countries outside the EU have been based on agreements between those countries and the EU. The agreement with Japan was slightly different (see Jane Lambert Agreement in Principle on a Comprehensive Economic Partnership with Japan of 12 Sept 2020 and An Introduction to and Overview of the Comprehensive Economic Partnership Agreement with Japan of 28 Oct 2020), The prospective agreement with Australia is the first bilateral trade agreement to be negotiated from scratch (see Jane Lambert The Proposed Australia-UK Free Trade Agreement of 17 June 2021).  HM Government also opened negotiations for British accession to The Comprehensive and Progressive Agreement for Trans-Pacific Partnership on 22 June 2021 (see the Department for International Trade's press release Britain launches negotiations with £9 trillion Pacific free trade area 21 June 2021 DfIT website).

Further Information

I shall be monitoring and reporting on those developments over the next few months.   Anyone wishing to discuss this article or the Brexit experiment generally may contact me on +44 (0)20 7404 5252 during normal business hours or by sending me a message through my contact form at all other times. 

Thursday, 17 June 2021

The Proposed Australia-UK Free Trade Agreement

Murray Grey Cattle in Australia

 









Jane Lambert

On 15 June 2021, the government announced that the British and Australian prime ministers had reached an agreement in principle on the terms of a free trade deal between the two countries (see the press release UK agrees historic trade deal with Australia 15 June 2021). The British government has not yet published those terms, possibly because the National Farmers Union's concerns over the terms of that deal had resonated with the public. Instead, the Department of International Trade has released a one-page leaflet described as "promotional material" and entitled Ten key benefits of the UK – Australia Free Trade Agreement. By contrast, the Australian government has published a summary of the terms of the agreement in Australia-UK FTA negotiations: agreement in principle on 15 June 2021.

According to the Australian government, the agreement will contain provisions on the following matters:

According to the British government, one of the benefits of the proposed agreement is that:
"The deal removes tariffs on £4.3bn of exports, making it cheaper to sell iconic products like cars, Scotch whisky and ceramics into Australia - supporting industries that employ 3.5 million people in the UK. Car makers in the Midlands and the North of England will benefit."

 That might be true of whisky and other luxury goods but it is less obvious how far the removal of Australian tariffs will improve the competitiveness of motor vehicles shipped halfway around the world.  The Chief Executive of the Society of Motor Manufacturers and Traders has welcomed the agreement with Australia but added:

"Given the integrated nature of the automotive industry, however, and the importance of proximity, we must also ensure smooth trade with markets closer to home."
The UK sold 20,000 cars to Australia in 2019, compared to 578,000 to the EU (see James Batchelor UK car makers demand smooth trade links ‘closer to home’ after Australia trade agreement 16 June 2021 CarDealer).  Even after the removal of those tariffs, motor manufacturers in Asia will continue to enjoy the advantages of lower labour and freight costs.

Having lost my rights to practise in the EU under Directive 77/249/EEC and Directive 98/5/EC, I was heartened by para 5 of the Ten Key Benefits of the FTA:
"UK Lawyers will be able to practice in Australia without having to requalify as an Australian lawyer."

The Australian government publication is more guarded: 

"legal services provisions which will both guarantee that UK and Australian lawyers can advise clients and provide arbitration, mediation and conciliation services in the other country's territory using their original qualifications and title, as well as establish and drive collaboration between regulators with the aim of addressing remaining barriers to practise as a local lawyer in the other country's territory."

Advantages of the proposed agreement that the government might have mentioned include provisions on copyright, design rights, patents, trade marks, geographical indications, artists resale rights, trade secrets and test data. These should not lead to higher medicine prices in either country. The Australian and British governments have also agreed to start a "strategic innovation dialogue" as a standing institution to support trade and economic growth through collaboration between the UK and Australia on innovation and associated trade matters, including regulatory approaches, commercialization of new technologies, and supply chain resilience.  They have also agreed to encourage the development and adoption of emerging technologies.

I shall return to this subject after the text of a draft agreement has been published.  Anyone wishing to discuss this topic may call me on  +44 (0)20 7404 5252 during office hours or send me a message through my contact form. 

Friday, 4 June 2021

Brexit Briefing May 2021

Lord Frost
Author HM Government Licence OGL 3.0 Source Wikimedia

 















Jane Lambert

Save for differences over the Northern Ireland Protocol May has been a quiet month for exchanges between the British government and the European Commission. Businesses in the UK appear to be coming to terms with the consequences of third-country status.  The UK has appeared n its own right at the World Trade Organization and the Department for International Trade has announced details of the proposed trade agreement with Australia which has caused some consternation with British farmers,

At their meeting in Brussels on 16 April 2021,  European Commission Vice-President Maroš Šefčovič and Lord Frost, Minister of State at the Cabinet Office agreed to further engagement with business groups, civil society and other stakeholders in Northern Ireland, In accordance with that agreement, he met business and community representatives on a joint 2-day visit to the province with the Northern Irish Secretary.  He talked to representatives of the aerospace, manufacturing, food and drink, retail, and life sciences industries about the challenges those industries were facing.

Lord Frost released the following statement in relation to his visit:

"It’s clear from my visit that the Protocol is presenting significant challenges for many in Northern Ireland. Businesses have gone to extraordinary efforts to make the current requirements work, but it is hard to see that the way the Protocol is currently operating can be sustainable for long.

We’re committed to working through the issues with the EU urgently and in good faith. I hope they will take a common sense, risk-based approach that enables us to agree a pragmatic way forward that substantially eases the burdens on Northern Ireland.

Solutions must be found rapidly in order to protect the Belfast (Good Friday) Agreement in all its dimensions and to minimise disruption to the everyday lives of people in Northern Ireland - as the Protocol itself requires. As the Prime Minister has made clear, we will continue to consider all our options in meeting our overriding responsibility for sustaining the peace and prosperity of everyone in Northern Ireland."

A development that I forgot to mention in my last Brexit Briefing is that the Trade Bill is now law.  The new Trade Act 2021 consists of 19 sections divided into 5 Parts with 6 Schedules.  It provides machinery for the implementation of trade agreements and establishes a Trade Remedies Authority and a Trade and Agriculture Commission,   I will discuss this statute in a separate article in due course.

The UK's Permanent Representative to the WTO, Simon Manley, addressed the WTO Heads of Delegation for the first time during the Trade Negotiations Committee on 4 May 2021.  He has also delivered policy statements on TRIPS, COVID19 vaccines and other matters.   For the moment, HM Government is not inclined to follow the lead of the USA in responding to calls for a patent waiver in respect of COVID vaccines and treatments (see my article The Patent Waiver Debate 8 May 2021 NIPC Law).

Accession negotiations with the CPTPP (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) have now been approved by the existing member states (see UK welcomes CPTPP nations’ invitation to begin accession 2 June 2021 DIT News Story).  One of the members of that partnership with which the Department has conducted advanced negotiations for a bilateral trade agreement is Australia. Among the proposals for that agreement is that Australian farm exports should enjoy tariff-free access to the British market after a period of adjustment.   This has precipitated calls from the National Farmers Union to stand up for farmers in Australia and NZ deals (see NFU joins calls for government to stand up for farmers in Australia and NZ deals 19 May 2021 NFU website).

Anyone wishing to discuss this article or any of the topics mentioned in it may call me on 020 7404 5252 during office hours or send me a message through my contact form at other times.

Thursday, 6 May 2021

EU Commission rejects the UK's Application to rejoin Lugano

Lugano

 











Jane Lambert

Although I had predicted it in my April Brexit Briefing, the publication on 4 May 2021 of the European Commission's Communication to the European Parliament and the Council recommending the rejection of Her Majesty's Government's application to rejoin the Lugano Convention (Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters OJ L 339, 21.12.2007, p. 3–41) will have disappointed many British lawyers and even more British businesses that benefited from  Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters OJ L 351, 20.12.2012, p. 1–32. The member states do not have to follow the Commission's recommendation but there is no point in asking the Commission to evaluate the British application and then not following the Commission's advice.

The Commission's reasoning is that while there is no formal requirement for an acceding state to belong to the EU, EEA or EFTA every party to the Convention has been a member or prospective member of one of those blocs.  The UK has left not only the EU but also the single market and the customs union with the following consequence:

"The United Kingdom is, since 1 January 2021, a third country with an “ordinary” Free Trade Agreement facilitating trade but not including any fundamental freedoms and policies of the internal market. The Convention is based on a high level of mutual trust among the Contracting Parties and represents an essential feature of a common area of justice commensurate to the high degree of economic interconnection based on the applicability of the four freedoms."

Neither the withdrawal agreement nor the trade and cooperation agreement provides for British accession to Lugano.

In the Commission's view, an appropriate framework for cooperation with third countries in the field of civil judicial cooperation is provided by the multilateral Hague Conventions such as the Convention on Choice of Court Agreements of 30 June 2005 and the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.  These agreements are much more limited in scope. For instance, art 1 (1) of the Choice of Court Agreements Convention states that the Convention shall apply in international cases to exclusive choice of court agreements concluded in civil or commercial matters and art 2 (2) excludes:

"the validity of intellectual property rights other than copyright and related rights"

and

"infringement of intellectual property rights other than copyright and related rights, except where infringement proceedings are brought for breach of a contract between the parties relating to such rights, or could have been brought for breach of that contract."

The European Parliament and member states will have an opportunity to express their views before the EU responds formally to the British application.

It is not yet clear what will be the long term effect on London as a financial centre or forum for the resolution of commercial disputes but it will be seen as an opportunity for Amsterdam, Dublin, Frankfurt and Paris and their new English speaking commercial courts (see English Speaking Commercial Courts in France, Germany and the Netherlands bid for London's Work 2 April 2021).

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.

Sunday, 2 May 2021

Brexit Briefing April 2021

Port of Dover
Author Raimond Spekking Licence CC BY-SA 4,0 Source Wikimedia Commons

 







Jane Lambert

The most significant events in April were the ratification of the Trade and Cooperation Agreement by the European Parliament, the Commission's recommendation that the UK should not be allowed to accede to the Lugano Convention and the fallout from the implementation of the withdrawal agreement and, in particular, the Northern Ireland Protocol. The month also marked the anniversary of British ratification of the Unified Patent Court Agreement in 2018 which was reversed by a note verbal and a written statement from Amanda Solloway MP 2 years later.

Ratification of the Trade and Cooperation Agreement

The European Parliament passed a resolution consenting to the agreement by a large majority on 28 April 2021 (see European Parliament legislative resolution of 28 April 2021 on the draft Council decision on the conclusion, on behalf of the Union, of the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, and of the Agreement between the European Union and the United Kingdom of Great Britain and Northern Ireland concerning security procedures for exchanging and protecting classified information (05022/2021 – C9‑0086/2021 – 2020/0382(NLE)). The United Kingdom Parliament ratified the Agreement by passing the European Union (Future Relationship)  Act 2020 at the end of last year.

The Trade and Cooperation Agreement has avoided tariffs on British exports which is something but not the need for customs formalities, health checks and all sorts of other non-tariff barriers to imports from third countries from which British exporters had previously been exempt. The result is that many firms have complained that it is considerably more difficult and expensive to supply customers in the EU than it had been before. It is too early to say whether those difficulties are temporary or long-term but if they are temporary there do not appear to be any solutions on the horizon.

The agreement covers goods but not services.   Before the expiry of the transition or implementation period, the British financial services enjoyed the highest level of access to the European single market known as "passporting rights".  These have now been lost but discussions have been taking place for the industry to be accorded equivalency rights that allow some access.  Those discussions have not yet resulted in an agreement.   As a result, some businesses have transferred some of their operations to one or more of the remaining EU member states.  There have been some job losses in London but not yet at a disturbingly high level.

The Lugano Convention

A sector that stands to lose even more from Brexit than financial services is the legal services industry and particularly intellectual property.  London was a convenient forum for the resolution of commercial disputes while Regulation (EU) No 1215/2012 applied to the UK. There is now uncertainty as to the ease with which English judgments can be enforced in the EU and the assistance that British courts can expect from EU courts. Many of those difficulties would cease were the UK to rejoin the Lugano Convention (Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters OJ L 339, 21.12.2007, p. 3–41).  Accession requires the consent of the existing members and according to Lord Goldsmith, the former Attorney-General. the Commission has advised EU member states to refuse such consent on the grounds that it is not a member of the EU, the EEA or even EFTA (Lord Goldsmith UK Accession to the Lugano Convention 2007—View of the EU Commission 22 April 2021 Debevoise & Plimpton).

Fallout from the Northern Ireland Protocol

I mentioned the circumstances that gave rise to a letter of formal notice in The Commission's Second Letter of Formal Notice on 29 March 2021. HM Government had a month in which to answer that letter which has now expired.  The Northern Ireland Protocol was a concession that the previous Prime Minister, Theresa May, said that no British prime minister could ever make. She had negotiated a withdrawal agreement that required the whole United Kingdom to remain in sync with the internal market until some means could be found that would enable lorries to cross the border with the Republic of Ireland without customs formalities.  Such a requirement proved unacceptable to many Conservative and all Democratic Unionist politicians with the result that the agreement that she had negotiated could not be ratified.   As a result, the UK's withdrawal from the EU was postponed until 31 Jan 2020.

The concession enabled the UK to withdraw from the UK and the consequences of such withdrawal for Northern Ireland were delayed until the implementation or transitional period expired on 31 Dec 2020.  As the Northern Ireland Protocol required additional paperwork and customs inspections on imports from Great Britain it became increasingly difficult to supply distributors in Northern Ireland from that country.  That has led to shortages of some consumer goods which in turn has led to civil unrest. The government's response to that unrest was to delay the implementation of certain aspects of the Protocol which prompted the letter of formal notice from the Commission.   In a related development, the members of the largest party in the Northern Ireland assembly have forced the Chief Minister out of office.  

Vaccine Politics

With job losses and business failures in all sorts of industries from financial services to fishing resulting from the additional paperwork and costs of exporting to the EU, the problems in Northern Ireland, the highest number of deaths from COVID 18 and the worst economic downturn of any of the large European economies, the government might be expected to struggle in public opinion polls.  So far that has not happened and that appears to result from the early success of the National Health Service in vaccinating the most vulnerable age groups of the British population.  The government has given the impression that this success is a benefit of Brexit which will probably be debunked but not in time for the local authority and Senedd and Scottish Parliament elections on 6 May 2021.

The UPC Anniversary

To celebrate World Intellectual Property Day 2018, the Foreign Secretary, Boris Johnson deposited the UK's instrument of ratification.  Less than two years later Amanda Solloway MP, the Minister of State for IP reversed that decision. I had been looking forward to appearing with the Minister at a seminar to discuss IP law and FinTech at which I would have questioned her on her volte-face butt sadly she never turned up recording a video message instead (Jane Lambert IP Strategy for FinTech Start-ups and SMEs - and Other Matters 28 April 2021 NIPC London). London was to have hosted part of the Central Division of the Court of First Instance and considerable funds were invested in fitting out courtrooms for the new tribunal in Aldgate.  Those premises are now being for remote hearings in the Trade Marks Registry.  Meanwhile, the Dutch, French and Germans are bidding for London's legal work with new English speaking courts in Amsterdam, Paris and Germany (see Jane Lambert English Speaking Commercial Courts in France, Germany and the Netherlands bid for London's Work 2 April 2021).

Doing Business after Brexit

I am currently updating my contribution to Helen Wong's Doing Business after Brexit.  The first edition of that book was a great success as I mentioned at the time My contributor's deadline is 30 My 2021.  I do not yet have a publication date for the second edition but I shall let you know.  In my update, I shall mention the provisions of the withdrawal agreement and the trade and cooperation agreement relating to IP and data protection, the implementing legislation, the continuing persuasive authority of the Court of Justice's case law and the missed opportunity of the withdrawal from the Unified Patent Court Agreement.

Further Information

Anyone wishing to discuss this article or any topic arising from it should call me on 020 7404 5252 or send me a message through my contact page. 

Sunday, 25 April 2021

Has the Volte-Face on the Unified Patent Court Agreement been worth it?

Author Cédric Pusney Licence CC BY 2.0 Source Wikimedia Commons

 



















Tomorrow is World Intellectual Property Day,  It is an international festival of creativity and innovation to celebrate the anniversary of the coming into force of the Convention Establishing the World Intellectual Property Organization on 26 April 1970,  Because it is a very significant anniversary, governments like to make momentous announcements about intellectual property on that day

One such announcement on World Intellectual Property Day was British ratification of the Unified Patent Court Agreement ("UPCA") made exactly 3 years ago by the then Foreign Secretary the Rt Hon Boris Johnson MP.   As British ratification was as welcome as it had been unexpected, I hailed it t as "Possibly the best thing to happen on World Intellectual Property Day", Any euphoria occasioned by that news was very short-lived.   A volte-face came less than 2 years later.  Part of the reason for that reversal. according to a parliamentary written statement by Amanda Solway MP, Parliamentary Under-Secretary of State, Minister for Science, Research and Innovation, was:
"Participating in a court that applies EU law and is bound by the CJEU would be inconsistent with the Government’s aims of becoming an independent self-governing nation." (see UK Withdrawal from the UPCA 20 July 2020 Unified Patent Court website).

In other words, the UPCA was thought to be incompatible with "taking back control" and the notion of sovereignty. 

Any intervention by the CJEU would have been minimal compared to matters in which Her Majesty's government has agreed to the continued involvement of that Court. First, the agreement by which the UK withdrew from the EU and Euratom provides for disputes over the Northern Ireland Protocol to be resolved by the CJEU as the House of Lords noted in paras 256 to 258 of their  Report on the Protocol.  

Secondly, s.6 (2) of the European Union (Withdrawal) Act 2018 permits courts and tribunals in the UK to have regard to judgments of the CJEU delivered after 23:00 on 31 Dec 2020 in so far as they may be relevant to any matter before them.  In Warner Music UK Ltd and another v TuneIn Inc. [2021] EWCA Civ 441 (26 March 2021) the Court of Appeal decided to follow the CJEU's judgment in  C-392/19 VG Bild-Kunst v Stiftung Preußischer Kulturbesitz  [2021] EUECJ C-392/19, [2021] WLR(D) 157, EU:C:2021:181, ECLI:EU:C:2021:181 which was delivered months after the expiry of the implementation period provided by art 126 of the withdrawal agreement. 

Thirdly, although the case law of the CJEU delivered before 31 Dec 2020 continues to bind British courts and tribunals, the Court of Appeal does have power to depart from that case law on the same basis that the Supreme Court has power to depart from one of its own precedents or of one of the House of Lords in accordance with the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234: In TuneIn, the appellant's primary contention was that the Court of Appeal should depart from the entire body of case law of the CJEU on communication to the public, or alternatively, that the Court should depart from Case C-160/15 GS Media BV v Sanoma Media Netherlands BV [2016] WLR(D) 477, [2016] EUECJ C-160/15, [2016] Bus LR 1231, ECLI:EU:C:2016:644, EU:C:2016:644.

The Court of Appeal struck down that argument like a whack-a-mole. Lord Justice Arnold gave no less than 8 reasons why departing from the CJEU's case law would be a bad idea between paras [77[ to [88] of his judgment.  The Master of the Rolls offered two, namely that the CJEU's case law was based on international agreements and there was no immediate .need to change anything.  Lady Justice Rose agreed that this was absolutely not a case in which this court should exercise its power to depart from the EU jurisprudence.  For those who are interested in the TuneIn appeal, I wrote a case note on the Court of Appeal's judgment in The Appeal: Warner Music UK Ltd and others v Tuneii Inc in NIPC Law on 24 April 2021.  

The UPC and the unitary patent would have benefited British industry great which is why they were recommended by both Gowers and Hargreaves.  Because of the adversarial system of civil litigation and the rule that costs of litigation are paid by the losing party the United Kingdom (and in particular) England is the most expensive and riskiest jurisdiction in the world in which to enforce an intellectual property right.  It is no coincidence that the country of Newton and Berners-Lee which initiated the industrial revolution and which still has some of the strongest research universities in the world trails consistently not just Germany and France in the number of European patent applications but also the Netherlands with a third of its population and Switzerland with one eighth.   A heavy price indeed for the chimaera of sovereignty.

Anyone wishing to discuss this article may call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.

Change of Focus

Author Daniel R Strebe  15 Aug 2011 Copyright waived    Source Wikimedia Commons Jane Lambert During the 2016 referendum campaign, I wrote ...