The Free Trade Agreement with Australia

Discovery House, Head Office of IP Australia

Author Bidgee Licence CC BY-SA 3.0 Source Wikimedia Commons

 

Jane Lambert

On 16 Dec 2021, the Secretary of State for International Trade signed the Australia-UK Free Trade Agreement (see the Department for International Trade's press release of 16 Dec 2021). The Agreement had been agreed in principle by the Prime Ministers of the two countries as I noted in The Proposed Australia-UK Free Trade Agreement on 17 June 2021. The full text of the Agreement can be found on the Australian Department of Foreign Affairs and Trade website.

The Agreement consists of a Preamble, 32 chapters of substantive provisions some of which have their own annexes, four annexes and several side letters. The chapters cover:

• Chapter 1 Initial Provisions and General Definitions, 
• Chapter 2 Trade in Goods,
• Chapter 3 Trade Remedies 
• Chapter 4 Rules of Origin and Origin Procedures
• Chapter 5 Customs Procedures and Trade Facilitation,
• Chapter 6 Sanitary and Phytosanitary Measures
• Chapter 7 Technical Barriers to Trade,
• Chapter 8 Cross Border Trade in Services,
• Chapter 9 Financial Services,
• Chapter 10 Professional Services and the Recognition of Professional Qualifications,
• Chapter 11 Temporary Entry for Business Persons,
• Chapter 12 Telecommunications,
• Chapter 13 Investment,
• Chapter 14 Digital Trade,
• Chapter 15 Intellectual Property
• Chapter 16 Government Procurement,
• Chapter 17 Competition Policy and Consumer Protection,
• Chapter 18 State-Owned Enterprises and Designated Monopolies,
• Chapter 19 Small and Medium-Sized Enterprises,
• Chapter 20 Innovation,
• Chapter 21 Labour,
• Chapter 22 Environment,
• Chapter 23 Development,
• Chapter 24 Trade and Gender Equality,
• Chapter 25 Animal Welfare and Antimicrobial Resistance,
• Chapter 26 Good Regulatory Practice,
• Chapter 27 Cooperation,
• Chapter 28 Transparency and Anti-Corruption,
• Chapter 29 Administrative and Institutional Provisions,
• Chapter 30 Dispute Settlement,
• Chapter 31 General Provisions and Exceptions,
• Chapter 32 Final Provisions.

Chapter 15 consists of 96 articles on intellectual property starting with "Definitions" in art 15.1 and finishing with "Environmental Considerations in Destruction and Disposal of Infringing Goods" in art 15.96.  The Chapter is divided into the following sections:

• A.  General Provisions: includes definitions, objectives, principles, understandings in respect of the objectives etc.;
• B. Cooperation: committee on IP rights, patent cooperation and work-sharing etc.;
• C. Trade Marks and domain names;
• D: Geographical indications;
• E: Patents and data;
• F: Undisclosed data;
• G: Registered industrial designs;
• H: Copyright and related rights;
• I:  Trade secrets; and
• J:  Enforcement.

I shall consider the various provisions of Chapter 15 and how they might affect IP practice in the UK in due course.

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 at other times.

The Future Relationship with the EU The UK’s Approach to Negotiations - An Introduction and Overview

Jane Lambert

Except for the misleading and mischievous inference in paragraph 2 that the UK was somehow less than economically and politically independent while it was one of the most powerful and influential EU member states and the reference to a non-existent agreement between the EU and Australia in paragraph 7, the policy statement entitled The Future Relationship with the EU the UK’s Approach to Negotiations CP 211 is considerably less confrontational and better thought through than many of the documents emanating from our side than in the negotiations for the withdrawal agreement.  It is, of course, very different in form from the European Council's Decision authorising the opening of negotiations with the United Kingdom of Great Britain and Northern Ireland for a new partnership agreement.  A Council Decision is a legal instrument that binds the European Commission's negotiating team.  A policy statement binds nobody though a departure from its terms might have political consequences.

The policy statement proposes a comprehensive free trade agreement consisting of 33 chapters:

• Chapter 1: General Definitions and Initial Provisions 
• Chapter 2: National Treatment and Market Access for Goods
• Chapter 3: Rules of Origin
• Chapter 4: Trade Remedies
• Chapter 5: Technical Barriers to Trade (TBT)
• Chapter 6: Sanitary and Phytosanitary (SPS) Measures
• Chapter 7: Customs and Trade Facilitation (CTF) 
• Chapter 8: Cross-Border Trade in Services
• Chapter 9: Investment
• Chapter 10: Temporary Entry and Stay for Business Purposes
• Chapter 11: Domestic Regulation
• Chapter 12: Mutual Recognition of Professional Qualifications
• Chapter 13: Telecommunications Services
• Chapter 14: Delivery Services
• Chapter 15: Audio-Visual Services
• Chapter 16: Financial Services
• Chapter 17: Digital
• Chapter 18: Capital Movements, Payments and Transfers
• Chapter 19: International Road Transport
• Chapter 20: Subsidies 
• Chapter 21: Competition Policy
• Chapter 22: State Owned Enterprises, Enterprises Granted Special Rights or Privileges and Designated Monopolies
• Chapter 23: Intellectual Property
• Chapter 24: Good Regulatory Practice and Regulatory Cooperation
• Chapter 25: Trade and Sustainable Development
• Chapter 26: Trade and Labour
• Chapter 27: Trade and Environment
• Chapter 28: Tax
• Chapters 29-31: Administrative Provisions, Transparency, and Exceptions
• Chapter 32: Managing the Agreement
• Chapter 33: Final Provisions.

Some of the issues raised by the policy statement will be less controversial than others.  For instance, I can see no discernible difference between HM government's position on intellectual property than the Council's. On the other hand, there is a difference in approach to competition policy, particularly in relation to state aid.

The British government suggests separate agreements in relation to fishing, aviation, energy, mobility and social security coordination, continued participation in certain EU programmes such as Erasmus and Horizon, nuclear cooperation, law enforcement and judicial cooperation, asylum and migration, the security of information and other matters.

The paper also addresses technical and other processes beyond the scope of the future relationship negotiations such as third country listing and similar procedures for animals, plants and foodstuffs, data adequacy, equivalence in financial services and civil judicial cooperation.  I am heartened by the government's aspiration to contract to the Lugano Convention which would effectively continue the arrangements under the Brussels Convention.

Anyone wishing to discuss this article or the future relationship negotiations, in general, should call me on +44 (0)20 7404 5252 or send me a message through my contact form.