Agreement in Principle on a Comprehensive Economic Partnership with Japan

 

Japan from Space

Jane Lambert

It is good to report a smidgeon of good news in a week in which a Minister of the Crown admitted in the House of Commons that the British government intends to breach an international agreement that it entered on our behalf just a few months ago.  That smidgeon was the press release of 11 Sept 2020 by the Department for International Trade that an agreement for a UK-Japan Comprehensive Economic Partnership was reached in principle by the International Trade Secretary Liz Truss and Japan’s Foreign Minister Motegi Toshimitsu on a video call on 11 Sept 2020.

Now it must be emphasized that an agreement in principle is not the same as a signed treaty and that there can be many slipups between those two points.  Cynics might also say that the timing of the announcement of an agreement in principle at a time when relations with the remaining member states of the EU are deteriorating is not coincidental.  The claim to have secured a free trade agreement with Japan at this stage is premature and over-optimistic.  If the agreement is signed it will indeed be the UK's first major trade deal since it left the EU but it has to be remembered that Japan is only the UK's 13th largest market accounting for only US$8.3 billion or 1.8% of exports.

No draft treaty appears to be available at this stage but the press release contains particulars of the agreement in principle.  The following information will be of particular interest to intellectual property practitioners:

"Cutting-edge digital & data provisions that go far beyond the EU-Japan deal. These will enable free flow of data whilst maintaining high standards of protection for personal data. We have also committed to uphold the principles of net neutrality, as well as introducing a ban on data localisation, which will prevent British businesses from having the extra cost of setting up servers in Japan. This will help UK fintech firms operating in Japan - like Revolut and Transferwise - to innovate and grow."

That suggests some sort of accommodation for Japan in our data protection laws which may have consequences for data flows between Britain and the EU.

"New protection for more iconic UK goods – increasing geographical indications (GIs) from just seven under the terms of the EU-Japan deal to potentially over 70 under our new agreement, covering goods including English sparkling wine, Yorkshire Wensleydale and Welsh lamb. This would lead to improved recognition of key UK brands in the Japanese market."

This is interesting because nobody seems to know how geographical indications will be protected in the UK after 31 Dec 2020.  At present, the UK is committed to the continued protection of geographical indications by art 54 (2) of the Withdrawal Agreement.  However, Lord Frost has indicated that he wants to renegotiate the provisions for geographical indications but has not spelt out what sort of legal protection for GIs that he wants.  Readers will recall that I asked one of the officials who is negotiating our comprehensive economic partnership with Japan what sort of IP rights we could expect last month:

"I asked Olivia Wessendorff of the Department of International Trade, one of the negotiators for the free trade agreement with Japan, whether she could share any insight on the changes that the government desired (see Virtual Cambridge: Informa Connect's IP Law Summer School 2020 22 Aug 2020 NIPC Training). She replied that her department was not responsible for negotiations with the EU. The last she had heard the government intended to create a GI regime on the lines of the EU one." (see Jane Lambert Brexit Briefing Ausgust 2020 4 Sept 2020).

The press release also promises new protection for the creative industries in Japan:

"New protections for UK creative industries – British businesses can now be confident that their brands and innovations will be protected. We have gone beyond the EU on provisions that tackle online infringement of IP rights, such as film and music piracy."

Should the proposed agreement ever be signed with Japan I shall return to this topic. If the agreement requires legislation here or in Japan to implement the treaty, I will discuss them in this publication.

Anyone wishing to discuss this article or the proposed agreement may call me on +44 (0)20 7494 5252 during UK office hours or send me a message through my contact form.  

EU Preparations for a "No Deal" Brexit

Jane Lambert

Hardly a day goes by without an avalanche of emails from the Department for Exiting the European Union on HM Government's preparations for a "no-deal" exit from the European Union. By contrast, the European Commission's output is much smaller.  The reason for the disparity in volume is obvious.  As the Commission's press release of 12 June 2019 points out, a withdrawal without an agreement in accordance with art 50 (2) of the Treaty on European Union "will obviously cause significant disruption for citizens and businesses and would have a serious negative economic impact." However, the press release also notes that such serious negative economic impact will "be proportionally much greater in the United Kingdom than in the EU27 Member States."

According to its press release, the Commission has been preparing for such a scenario since December 2017:

"To date, the Commission has tabled 19 legislative proposals, 18 of which have been adopted by the European Parliament and Council. Political agreement has been reached on the remaining proposal – the contingency Regulation on the EU budget for 2019, which is expected to be formally adopted later this month. The Commission has also adopted 63 non-legislative acts and published 93 preparedness notices."

It summarized its preparations in a press release of 10 April 2019.

The Commission has reviewed its preparations in view of the extension of the notification period until 31 Oct 2019 and "concluded that there is no need to amend any measures on substance and that they remain fit for purpose." The press release adds that the Commission does not plan any new measures ahead of the new withdrawal date.   The Commission has also completed a tour of the capitals of the 27 remaining states and found a high degree of preparation by member states for all scenarios.

The press release has focused on the following topics that require continued and particular vigilance:

• Citizens' residence and social security entitlements, 
• Medicinal products, medical devices and chemical substances,
• Customs, indirect taxation and border inspection posts,
• Transport,
• Fishing, and
• Financial services.

For British citizens residing in the EU, the Commission has published a useful webpage on EU27 Member States measures on residence rights of legally residing UK nationals and social security entitlements related to the UK in case of no deal. As for other matters, border posts are in place, planes will continue to fly and land unhindered between the UK and EU member states for the time being and financial institutions in London are making such preparations as may be necessary to continue operations in the EU.

As many of these preparations will have to be implemented by member states, the Commission has a convenient portal to the national brexit preparedness websites of each of those countries.

Anyone wishing to discuss this article or brexit, in general, can call me during office hours on 020 7404 5252 or send a message through my contact page.