Dispute Resolution under the Withdrawal Agreement

 

Jane Lambert

Art 167 of the agreement by which the UK withdrew from the European Union which was signed in January of this year ("the Withdrawal Agreement") requires the EU and UK at all times to endeavour to agree on the interpretation and application of that agreement and to make every attempt, through cooperation and consultations, to arrive at a mutually satisfactory resolution of any matter that might affect its operation.

Art 169 (1) of the Withdrawal Agreement further requires them to "endeavour to resolve any dispute regarding the interpretation and application of the provisions of this Agreement by entering into consultations in the Joint Committee in good faith, with the aim of reaching a mutually agreed solution." The Joint Committee consists of representatives of the EU and UK under art 164 (1) of the Withdrawal Agreement and is responsible for the implementation and application of that agreement.  If no mutually agreed solution has been reached within 3 months after written notice has been provided to the Joint Committee in accordance with art 169 (1), the EU or the UK may request the establishment of an arbitration panel to resolve the dispute.

Art 171 (1) of the Withdrawal Agreement requires the Joint Committee to establish a list of 25 persons who are willing and able to serve as members of an arbitration panel before 31 Dec 2020.  Art 171 (2) provides:

"The list established pursuant to paragraph 1 shall only comprise persons whose independence is beyond doubt, who possess the qualifications required for appointment to the highest judicial office in their respective countries or who are jurisconsults of recognised competence, and who possess specialised knowledge or experience of Union law and public international law. That list shall not comprise persons who are members, officials or other servants of the Union institutions, of the government of a Member State, or of the government of the United Kingdom,"

By a decision dated 17 Dec 2020, the Joint Committee has appointed the following persons to serve as chairpersons of any arbitration panel that may be set up under these provisions: Corinna Wissels, Angelika Helene Anna Nussberger, Jan Klucka, Sir Daniel Bethlehem and Gabrielle Kaufmann-Kohler.  The EU has nominated the following ordinary members of such panel: Hubert Legal, Helena Jäderblom, Ursula Kriebaum, Jan Wouters, Christoph Walter Hermann, Javier Diez-Hochleitner, Alice Guimaraes-Purokoski, Barry Doherty, Tamara Capeta and Nico Schrijver.   The British government has nominated Sir Gerald Barling, Sir Christopher Bellamy, Zachary Douglas, Sir Patrick Elias, Dame Elizabeth Gloster, Sir Peter Gross, Toby Landau QC, Dan Sarooshi QC, Jemima Stratford QC and Sir Michael Wood.

An arbitration panel must consist of 5 members (art 171 (3)).  The EU and UK shall each nominate 2 members from among the persons on the list established under art 171 (1). The chairperson shall be selected by consensus by the members of the panel from the persons jointly nominated by the EU and UK to serve as chairperson.

The parties have agreed to be bound by any ruling of the arbitration pane pursuant to art 175 and shall take steps to comply with the ruling within a reasonable time.

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

The IP Provisions of the EU-UK Trade and Cooperation Agreement

Author Furdur Source Wikipedia

Jane Lambert

In The Draft EU-UK Trade and Cooperation Agreement: What We Know So Far 26 Dec 2020 I described the draft EU-UK Trade and Cooperation Agreement as follows:

"The draft trade and cooperation agreement is 1,246 pages long and consists of the body and a very large number of annexes. The body is just under 400 pages long and is divided into 7 Parts subdivided into Titles and in some cases further divided into chapters. The remaining pages are the annexes."

I added that the most important part of the draft agreement appeared to be Part Two which governs trade in goods and services. Title V of that Part covers intellectual property. 

In contrast to Title IV of Part Three of the Withdrawal Agreement (Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community) which provides for the continued protection under national law of intellectual assets that are currently protected by EU law, Title V of Part Two of the EU-UK Trade and Cooperation Agreement will not require immediate changes to national law.  "Intellectual property" is not even mentioned in the European Union (Future Relationship) Bill which was published late last night and which will ratify the EU-UK Trade and Cooperation Agreement.

The quite extensive changes to UK intellectual property legislation which will come into force at 23:00 on 31 Dec 2020 were agreed in the Withdrawal Agreement,  Indeed, some of these changes would have come into effect even if the UK had withdrawn from the European Union without a withdrawal agreement.  I have mentioned those changes in previous articles in this publication and in NIPC Law and I shall no doubt do so again,   In the meantime, the best summary of those changes is Intellectual Property after 1 Jan 2021 which is published on the British Intellectual Property Office website.  That article was last updated on 17 Dec 2020.

Title V of Part Two of the EU-UKTrade and Cooperation Agreement consists of 57 articles between page 125 and page 147 of the draft agreement.  The articles in that title are helpfully identified by the initials "IP".They cover the following topics:

• Chapter 1 (arts IP1 to IP6) general provisions
• Chapter 2  (arts IP7 to IP37) standards concerning intellectual property rights
• Section 1 (arts IP7 to IP17) copyright and related rights
• Section 2 (arts IP18 to IP26) trade marks
• Section 3 (arts IP27 to IP31) designs
• Section 4 (arts IP32 to IP33) patents
• Section 5 (arts IP34 to IP IP36) undisclosed information
• Section 6 (art IP37) plant varieties
• Chapter 3 (arts IP38 to IP54) enforcement of intellectual property rights
• Section 1 (arts IP38 to IP39) general obligations
• Section 2 (arts IP40 to IP51) civil and administrative enforcement
• Section 3 (art IP52) civil judicial procedures and remedies of trade secrets
• Section 4 (arts IP53 and IP54) border enforcement
• Chapter 4 (arts IP55 to IP57) other provisions.

The objectives of the title which are set out in art IP1 are as follows:

"(a) facilitate the production, provision and commercialisation of innovative and creative products and services between the Parties by reducing distortions and impediments to such trade, thereby contributing to a more sustainable and inclusive economy; and 

(b) ensure an adequate and effective level of protection and enforcement of intellectual property rights."

Art IP2 (1) provides that the title "shall complement and further specify the rights and obligations of each Party under the TRIPS Agreement and other international treaties in the field of intellectual property to which they are parties." 

In general, the title is structured very similarly to TRIPS which is of course annexe to the Agreement Establishing the World Trade Organization to which the UK, the EU and all its member states are party.  That includes the key provisions of the Enforcement and Trade Secrets Directives.  It should be remembered that s.3 (1) of the European Union (Withdrawal) Act 2018 incorporates direct EU legislation into national law.

Anyone wishing to discuss this article or Title V of Part Two of the EU-UK Trade and Cooperation Agreement may call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.  In the meantime, I wish all my readers a happy and prosperous New Year.

The Draft EU-UK Trade and Cooperation Agreement: What We Know So Far

Jane Lambert

The European Commission has just published the full text of the draft EU-UK Trade and Cooperation Agreement on its website.  Accompanying that draft are a draft EU-UK Security of Information Agreement, a draft EU-UK Civil Nuclear Agreement and draft EU-UK Declarations. Also worth reading are the Commission's press release of 24 Dec 2020, a Q & A on the draft agreement and a checklist entitled Big changes compared to benefits of EU membership which can be downloaded here.  On Christmas Day, the British government published a 34-page summary of the agreement and a statement from the Prime Minister.

.To understand the agreement it is necessary to refer to art 50 (2) of the Treaty of European Union:

"A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union."

The agreement that set out the arrangements for withdrawal was, of course, the Withdrawal Agreement (Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community). It was concluded in January and implemented by the European Union (Withdrawal Agreement) Act 2020. 

Some of the provisions of the Withdrawal Agreement such as those governing the transitional or implementation period in which EU law continues to apply to the UK will lapse at 23:00 on 31 Dec 2020.  Other provisions such as those governing intellectual property or Northern Ireland will continue indefinitely.  The framework for the UK's future relationship with the EU was the Political Declaration setting out the framework for the future relationship between the European Union and theUnited Kingdom ("the Political Declaration"). The EU-UK Trade and Cooperation Agreement is intended to govern the UK's relationship with the EU from the end of the implementation period at 23:00 on 31 Dec 2020 in accordance with the Political Declaration.

The draft trade and cooperation agreement is 1,246 pages long and consists of the body and a very large number of annexes.   The body is just under 400 pages long and is divided into 7 Parts subdivided into Titles and in some cases further divided into chapters.  The remaining pages are the annexes.

The structure of the body is as follows:

• Part One: common and institutional provisions in the Agreement; 
• Part Two: trade and other economic aspects of the relationship, such as aviation, energy, road transport, and social security; 
• Part Three: cooperation on law enforcement and criminal justice; 
• Part Four:  thematic issues, notably health collaboration; 
• Part Five: participation in EU Programmes,
• Part Six: dispute settlement; 
• Part Seven: final provisions.

The most important economic provisions appear to be in Part Two. Title 1 of Part 2 covers trade in goods and Title II trade in services.  Services that are covered in this title include telecoms, financial services and legal services.  Provision is also made in Part Two for digital trade, capital m movements and intellectual property.

Because of the sheer length of the document, it will take me some time to read and digest it.  Anyone wishing to discuss this article or brexit generally may call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact page.  I take this opportunity of wishing all my readers a happy New Year.

Brexit Briefing November 2020

Dover Beach

Jane Lambert

This is my last Brexit Briefing before the end of the transition period.  I delayed it much longer than I should have done to await the outcome of the negotiation between representatives of the British government and the Commission on the UK's future relationship with the European Union.  I have decided not to wait any longer for two reasons. The first is that we may not get an outcome tomorrow. Both sides are gloomy but that does not mean that talks will not continue.  The second is that an agreement may not make all that much difference to businesses and individuals in practice as there will be checks, delays and inconvenience even under a free trade agreement.

The very first Brexit Briefing grew out of a talk that I gave in chambers on IP planning for brexit on 7 Dec 2016.  There were then many uncertainties as to what would happen to Community designs and plant varieties, EU trade marks, geographical indication, the trade secrets directive, the unitary patent and the Unified Patent Court.  Because those uncertainties were likely to be resolved in the negotiations on the terms of the UK's withdrawal, I advised my audience to "Follow the withdrawal negotiations closely, particularly in so far as they affect [their] clients' industries" on slide 21.  I tried to monitor those developments in NIPC News but their speed and complexity prompted me to launch this blog.

Many of the uncertainties have been revolved.   The Trade Secrets Directive came into force during the 2 year notice period (see Transposing the Trade Secrets Directive into English Law: The Trade Secrets (Enforcement etc) Regulations 6 Jun 2019 NIPC Law).  The withdrawal agreement preserved EU intellectual property rights by converting them into national rights (see Intellectual Property Post Brexit 2 Feb 2020 and The Intellectual Property Provisions of the Draft Withdrawal Agreement 19 Nov 2019). Sadly, as I had anticipated in 2016 the UK has withdrawn from the Unified Patent Court Agreement just before Germany introduced legislation ratifying its accession (see Unified Patent Court Ratification Bill clears Lower House of the German Federal Parliament 30 Nov 2020).

A remaining uncertainty is what is to happen to cross-border litigation after the Brussels Regulation (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) ceases to apply to the UK. This country has applied to accede to 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) but has not yet secured the consent of all members. The UK is party to the Convention of 30 June 2005 on Choice of Court Agreements which will come into effect at 23:00 on 31 Dec 2020 and regulations have been made to implement these changes. The Ministry of Justice has provided guidance on these matters in Cross-border civil and commercial legal cases: guidance for legal professionals from 1 January 2021.

As the process of dissolving the UK's 47-year legal relationship with its immediate neighbours will end at 23:00 on 31 Dec, brexit will in a sense be done.  I had thought about ending this blog at the same time but I believe that there will be many issues arising from brexit for many years to come.  There will be new initiatives like the English speaking commercial court in the Netherlands which are likely to interest businesses in the UK. The unitary patent will provide cost savings and other advantages for British companies even though the UK has withdrawn from the UPC agreement, There will be IP provisions to consider in the free trade agreements that the government hopes to negotiate. Also, it is not out of the question that the brexit experiment will be seen to fail sooner rather than later in which case it will be necessary to monitor the art 49 accession negotiations.

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