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.

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.

Geographical Indications after Brexit

Stilton Cheese

Author: Dominik Hundhammer
Licence: Creative Commons Attribution-Share Alike 3.0 unported

Source Wikipedia  Commons

Jane Lambert

A geographical indication is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin.  Examples include Cornish pasties, Scotch whisky and, of course, Stilton cheese (see HM Government Protected Food Scheme: UK registered products 15 Jan 2014). The UK is bound to protect such signs by art 22 of the Agreement on Trae-Related Aspects of Intellectual Property Rights ("TRIPS") and art 10bis  of the Paris Convention for the Protection of Industrial Property.

HM Government discharges those obligations by

• collective and certification marks;
• the extended action of passing off; and
• special European Union legislation for agricultural farm products and foodstuffs and wines and spirits.

The special EU legislation is Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs 14.12.2012.

If and when the UK ever leaves the EU, Regulation 1151/2012 will cease to apply to the UK except in so far as, and to the extent that, it is caught by s.3 of the European Union (Withdrawal) Act 2018.  The draft withdrawal agreement of 14 Nov 2018 provided for EU law, including that regulation, to continue to apply to the UK from the exit date to the 31 Dec 2020. Thereafter art 54 (2) of that agreement provided for at least the same level of protection to continue to apply to products registered under regulation 1151/2012 from 31 Dec 2020 without any re-examination. Paragraph 45  of the political declaration on the future relationship between the EU and UK noted the protection afforded to existing geographical indications in the withdrawal agreement and required  the UK and EU to  seek to put in place arrangements to provide appropriate protection for their respective geographical indications.

Unless the British government revokes its notification of intention to leave the EU of 29 March 2017 before 31 Oct 2019 (or the expiry of such further extension to the notice period as may be agreed by the UK and remaining member states) this country must implement its own scheme for protecting geographical indications before 31 Oct 2019 or 31 Dec 2020 at the latest. The Department for the Environment, Food and Rural Affairs ("DEFRA") has already held consultations on establishing a UK geographical indications scheme after brexit and the enforcement of what it calls "the protected food name scheme". There is as yet no draft legislation but DEFRA has published Guidance on protecting food and drink names if there's no Brexit deal, 

The guidance states that the UK will set up its own geographical indications scheme which will be managed by DEFRA. The department will maintain a register of protected products and process new applications. The new UK scheme will use the same classes as the current EU one, namely:

• Protected Designation of Origin (PDO)
• Protected Geographical Indication (PGI), and
• Traditional Specialities Guaranteed (TSG).

Local authority trading standards officers will enforce the legislation.

All existing UK products registered under the EU scheme will automatically get UK status and remain protected in the UK. Food and drink producers from the UK and abroad will be entitled to apply for protection in accordance with advice to be published by DEFRA in October. DEFRA will design a new set of logos for each of the above classes which may be used by British and overseas food producers alike.

British products will continue to be protected by EU legislation and the legislation of third countries with which the EU has a trade agreement if the UK leaves the EU in accordance with the draft withdrawal agreement or possibly such other agreement as may be negotiated.  The guidance warns that that may not happen if the UK leaves without a withdrawal agreement in which case British food and drink producers will have to reapply to the Commission for EU geographical indication protection or some other form of protection such as a certification or collective EU trade mark,

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

The Shanghai Cooperation Organization

Jane Lambert

So PM's visit to Japan is a success.The 21st Century belongs to Asia not the EU; when will the Remoaners realise that harsh fact of life?!

— Lord Digby Jones (@Digbylj) August 31, 2017

I've been a bit of a fan of Lord Digby Jones ever since I heard him speak at PERA in 2011 (see "Growth Through Innovation" - Digby Jones at PERA 26 July 2011). I agree that the 21st century belongs to Asia though with the slight caveat that North Korea is in Asia but I don't understand how the 21st century's belonging to Asia is supposed to strengthen the case for Brexit. I won't comment further on that point as the purpose of this blog is to inform and not to debate our relationship with the EU.  The inference to be drawn from Lord Digby Jones's tweet, however, is that we should be doing more trade with Asia and he is right.

It is, however, ironic that the largest countries of Asia are creating new political and economic organizations just as we are leaving the EU. On 9 June 2017 India joined China and Russia and a number of other states as full members of the Shanghai Cooperation Organization ("the SCO"). Those three countries are also linked with the leading economies of Latin America and Sub-Saharan Africa through BRICS. Their economies will be linked much more closely through the One Belt One Road ("OBOR") infrastructure project that will construct new ports, roads and railways and improve existing ones to facilitate freight and passenger transport between the SCO countries (see the One Belt One Road research group website of Oxford University's Law Faculty).

According to art 1 of its Charter, the SCO was established with the following aims:

• "to strengthen mutual trust, friendship and good neighborliness between the member States; 
• to consolidate multidisciplinary cooperation in the maintenance and strengthening of peace, security and stability in the region and promotion of a new democratic, fair and rational political and economic international order; 
• to jointly counteract terrorism, separatism and extremism in all their manifestations, 
• to fight against illicit narcotics and arms trafficking and other types of criminal activity of a transnational character, and also illegal migration; 
• to encourage the efficient regional cooperation in such spheres as politics, trade and economy, defense, law enforcement, environment protection, culture, science and technology, education, energy, transport, credit and finance, and also other spheres of common interest; 
• to facilitate comprehensive and balanced economic growth, social and cultural development in the region through joint action on the basis of equal partnership for the purpose of a steady increase of living standards and improvement of living conditions of the peoples of the member States; 
• to coordinate approaches to integration into the global economy; 
• to promote human rights and fundamental freedoms in accordance with the international obligations of the member States and their national legislation; 
• to maintain and develop relations with other States and international organisations; 
• to cooperate in the prevention of international conflicts and in their peaceful settlement; 
• to jointly search for solutions to the problems that would arise in the 21st century."

Art 3 of the Charter provides that the main areas of cooperation will be the following:

• "maintenance of peace and enhancing security and confidence in the region; 
• search of common positions on foreign policy issues of mutual interest, including issues arising within international organisations and international fora; 
• development and implementation of measures aimed at jointly counteracting terrorism, separatism and extremism, illicit narcotics and arms trafficking and other types of criminal activity of a transnational character, and also illegal migration; 
• coordination of efforts in the field of disarmament and arms control; 
• support for, and promotion of regional economic cooperation in various forms, fostering favorable environment for trade and investments with a view to gradually achieving free flow of goods, capitals, services and technologies; 
• effective use of available transportation and communication infrastructure, improvement of transit capabilities of member States and development of energy systems; 
• sound environmental management, including water resources management in the region, and implementation of particular joint environmental programs and projects; 
• mutual assistance in preventing natural and man-made disasters and elimination of their implications; 
• exchange of legal information in the interests of development of cooperation within SCO; 
• development of interaction in such spheres as science and technology, education, health care, culture, sports and tourism."

The article enables SCO member States to expand the spheres of cooperation by mutual agreement.  

Art 4 establishes a number of organs through which the member states collaborate. Their constitution and functions are explained in arts 5 to 10.  Art 4 (1) and 11 establish a Secretariat which is the SCO's standing administrative body. Headed by a Secretary-General, the Secretariat provides technical and organizational support for the SCO. It also makes budget proposals that are considered by the governments of the member states.  Art 16 provides that decisions are taken by consensus and are implemented by the member states.  There is no SCO court or provision for arbitration. Art 22 provides for disputes or controversies arising out of interpretation or application of the Charter to be settled by member states through consultations and negotiation. The official languages of the SCO are Russian and Mandarin.

Although not formally linked to the SCO, the OBOR project is likely to contribute its economic underpinning. As the University of Oxford website observes:

"The implementation of OBOR requires a legal and constitutional structure that is suited to the complex and un-precedented issues that arise in such a cross-border and international undertaking.
One set of questions concerns the constitutional and international structures and changes that may be necessary to facilitate the success of the New Silk Road initiative. Are the constitutional orders of the many nations involved suited to the level of international cooperation required by the initiative? Do those constitutional orders share the common aims and objectives necessary for the initiative? How do international standards affect the constitutional orders and traditions of participating states? These are examples of the many interesting and complex issues for research and discussion."

To an outsider, the SCO is the obvious legal and constitutional solution but that may not be how it is seen by the governments of China, India and Russia or indeed the other SCO member states or participants in the OBOR project. No doubt it will be one of the topics under discussion at the One Belt One Road Summit at Oxford on 13 Sept 2017.

Anyone who wishes 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.