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.

Unified Patent Court Ratification Bill clears Lower House of the German Federal Parliament

Author Cezary p  Licence CC BY-SA 2/5  Source Wikipedia Bundestag

 

Jane Lambert

In German Constitutional Court's Decision in Re Unified Patent Court Agreement  22 March 2020 NIPC Law, I commented on the Constitutional Court's decision in  Re Unified Patent Court Agreement 2 BvR 739/17 Order of 13 Feb 2020 (20 March 2020) that the bill to ratify German accession to ratify the Unified Patent Court Agreement was unconstitutional.  I wrote:

"If the problem was the lack of a two-thirds majority there is nothing to prevent the German Government from introducing another ratification bill and making sure that there are enough parliamentarians in each of the houses of Parliament to vote the measure through."

That is what appears to have happened.  A new ratification bill was passed by a quorate lower house with the necessary two-thirds majority (see UPC – Progress on German ratification 26 Nov 2020 UPC website). The bill now proceeds to the Upper House which will vote on the proposed legislation on 18 Dec 2020.

As Mr Boris Johnson MP in his capacity as Foreign Secretary had deposited the instrument of ratification on World Intellectual Property Day 2018 (see British Ratification of the UPC Agreement - Possibly the best thing to happen on World Intellectual Property Day 26 April 2018 NIPC News) we might have expected the Unified Patent Court to open for business in 2021,  Unfortunately, there are likely to be further delays as a result of the UK government's volte-face under Mr Johnson's premiership (see Volte-Face on the Unified Patent Court Agreement  29 Feb 2020 NIPC News).   A withdrawal notification of ratification was deposited with the Council Secretariat on 20 July 2020.  On the same day the Minister for Science, Research and Innovation:

"UNIFIED PATENT COURT

I am tabling this statement for the benefit of Honourable and Right Honourable Members to bring to their attention the UK’s withdrawal from the Unified Patent Court system.

Today, by means of a Note Verbale, the United Kingdom of Great Britain and Northern Ireland has withdrawn its ratification of the Agreement on a Unified Patent Court and the Protocol on Privileges and Immunities of the Unified Patent Court (dated 23 April 2018) in respect of the United Kingdom of Great Britain and Northern Ireland and the Isle of Man, and its consent to be bound by the Protocol to the Agreement on a Unified Patent Court on provisional application (dated on 6 July 2017) (collectively “the Agreements”).

In view of the United Kingdom’s withdrawal from the European Union, the United Kingdom no longer wishes to be a party to the Unified Patent Court system. 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.

The Agreements have not yet entered into force. However, in order to ensure clarity regarding the United Kingdom’s status in respect of the Agreements and to facilitate their orderly entry into force for other States without the participation of the United Kingdom, the United Kingdom has chosen to withdraw its ratification of the Agreements at this time. The United Kingdom considers that its withdrawals shall take effect immediately and that it will be for the remaining participating states to decide the future of the Unified Patent Court system".

Although this is the end of the road for British participation in the project unless and until the United Kingdom (or successor states of the UK) rejoin the European Union it need not be the end of the project.  

The UPC's Preparatory Committee meeting held on 10 Sep 2020 reported calls from European industry for the speedy implementation of the Agreement.  That includes British businesses that intend to continue to trade in the EU after the end of the transition period whether through subsidiaries, joint ventures or otherwise.  Until this year, British governments have always believed the establishment of an EEC, EU or unified patent to be in our national interests and much of British industry still does.  It is, therefore, gratifying to note that "good progress was made and the Committee is confident that pragmatic and legally sound solutions will be found that will enable the unitary patent system to be functional in a near future" (see Report of the Preparatory Committee meeting held on 10 September 2020 UPC website).

For that reason, I shall continue to monitor progress on the UPC even after the end of the transition period.   I shall also be glad to advise on points of law relating to European patents or the Unified Patent Agreement. As our chambers already have an Irish silk whose practice includes IP and technology law we can already provide representation in the UPC whenever it comes into being.   As soon as the UPC announces opens its doors, I shall also seek call to the Irish bar.   Anyone wishing to discuss this article or the UPC and unitary patent generally may call me on +44 (0)2- 7404 5252 during office hours or send me a message through my contact form.

The Reqional Comprehensive Economic Partnership Agreement

Author Tiger7253  Licence CC BY-SA 4.0 Source Wikipedia

 

Jane Lambert

In the week in which Michel Barnier and David Frost have held final negotiations, the governments of Australia, Brunei Darussalam, Cambodia, China, Indonesia, Japan, Laos, Malaysia, Myanmar, New Zealand, the Philippines, Singapore, South Korea, Thailand and Vietnam signed an Agreement for a Regional Comprehensive Economic Partnership on the 15 Nov 2020. The combined population of the contracting parties is 2.3 billion and their combined GDP is US$26.3 trillion. Larger than the United States-Mexico-Canada, the European Union and Trans-Pacific Partnership. 

The instrument is massive consisting of a Preamble, 20 Chapters and over 18 Annexes. Annex I contains Schedules of  Tariff Commitments for each country, Annex II Schedules of Specific Commitments for Services, Annex III Schedules of Reservations and Non-Conforming Measures for Services and Investment and Annex IV Schedules of Specific Commitments on Temporary Movement of Natural Persons.

The Chapters cover the following:

• Initial Provisions and General Definitions 
• Trade in Goods 
• Rules of Origin incorporating Annex 3A. Product Specific Rules and Annex 3B. Minimum Information Requirements 
• Customs Procedures and Trade Facilitation incorporating Annex 4A. Period of Time to Implement the Commitments 
• Sanitary and Phytosanitary Measures 
• Standards, Technical Regulations, and Conformity Assessment Procedures 
• Trade Remedies incorporating Annex 7A: Practices Relating to Anti-Dumping and Countervailing Duty Proceedings
• Trade in Services incorporating Annex 8A: Financial Services, Annex 8B: Telecommunication Services and Annex 8C: Professional Services 
• Temporary Movement of Natural Persons 
• Investment incorporating Annex 10A: Customary International Law and Annex 10B: Expropriation 
• Intellectual Property incorporating Annex 11A: Party-Specific Transition Periods and Annex 11B: List of Technical Assistance Requests
• Electronic Commerce 
• Competition [PDF 75 KB] incorporating Annex 13A: Application of Article 13.3 (Appropriate Measures against Anti-Competitive Activities) and Article 13.4 (Cooperation) to Brunei Darussalam, Annex 13B: Application of Article 13.3 (Appropriate Measures against Anti-Competitive Activities) and Article 13.4 (Cooperation) to Cambodia, Annex 13C: Application of Article 13.3 (Appropriate Measures against Anti-Competitive Activities) and Article 13.4 (Cooperation) to Lao PDR and Annex 13D: Application of Article 13.3 (Appropriate Measures against Anti-Competitive Activities) and Article 13.4 (Cooperation) to Myanmar 
• Small and Medium Enterprises 
• Economic and Technical Cooperation 
• Government Procurement incorporating Annex 16A: Paper or Electronic Means Utilised by Parties for the Publication of Transparency Information 
• General Provisions and Exceptions 
• Institutional Provisions incorporating Annex 18A: Functions of the Subsidiary Bodies of the RCEP Joint Committee 
• Dispute Settlement. and
• Final Provisions.

I shall explore some of these chapters in future articles.  

Anyone wishing to discuss this article or the agreement is welcome to call me on +44 (0)20 7404 5252 during British office hours or send me a message through my contact page.

Brexit Briefing October 2020

 

Source Wikipedia

Jane Lambert

Significant deadlines have come and gone in October almost without being noticed.  One was 15 which was supposed to be the last opportunity for the text of a treaty on the new relationship with the EU to have been ratified by the Council and the European and British parliaments, The other was 31 when a reply to the letter of formal notice on the UK's alleged breach of the EU withdrawal agreement mentioned in the press release of 1 Oct 2020 should have been received.

The reason why those deadlines have been largely overlooked is that the election in the USA is more likely to affect the UK's relationship with the EU27 in the long term than anything that Monsieur Barnier or Lord Frost or even their political masters or mistresses are likely to say or do. That is because Mr Biden and Mr Trump have very different views of the world and, accordingly, of the US's relationship with the UK.

Mr Biden was the Vice-President of an administration that negotiated the Trans-Pacific Partnership which was signed on 4 Feb 2016.  Mr Trump withdrew from that accord very shortly after he became President of the USA.  Similatrly, Mr Biden was part of an administration that negotiated with the EU to establish a Transatlantic Trade and Investment Partnership. Though there had been objections to that agreement in several member states including the UK, it was the Trump administration that pulled out of those talks. Mr Trump has shown no time for trade blocs.  He prefers bilateral deals where the USA can more or less dictate terms because of its overwhelming bargaining power.

If, which now seems unlikely, Mr Trump has won the 2020 election the UK will probably get a bilateral trade deal with the USA.  That might not make much difference to the UK's economy but it may be perceived by some as strengthening the hand of the British negotiators in their dealings with the EU. If Mr Biden has won the UK may find itself at the back of the queue for a bilateral trade deal as President Obama warned in the brexit referendum campaign. That would not be because of any antipathy towards the UK but because it has a smaller market than the EU27, the TPP  or indeed China and Japan.   When the UK was a member state of the EU it was useful to a multilateralist administration because the UK exercised some leverage as one of the big three member states.  By leaving the EU it has abandoned that leverage and hence much of its usefulness to a Biden administration.  Should Biden reopen trade talks with the EU for a Transatlantic Trade and Investment Partnership mark 2, the only way the UK could access the US market on preferential terms would be by joining those negotiations which would be tantamount to rejoining the EU.

The only other noteworthy event in October was the signing in Tokyo of the Comprehensive Economic Partnership Agreement with Japan.  In An Introduction to and Overview of the Comprehensive Economic Partnership Agreement with Japan 28 Oct 2020 I compared its structure to the EU-Japan Economic Partnership Agreement and found very little difference.

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

An Introduction to and Overview of the Comprehensive Economic Partnership Agreement with Japan

Source Independent  Licence Standard YouTube Licence

Jane Lambert

On 23 Oct 2020, the Secretary of State for International Trade signed an Agreement between the United Kingdom of Great Britain and Northern Ireland and Japan for a Comprehensive Economic Partnership in Tokyo.  The body of the agreement is 406 pages long divided into 24 chapters together with 3 volumes of annexes which can be accessed from UK/Japan: Agreement for a Comprehensive Economic Partnership [CS Japan No.1/2020].

The structure of that agreement is very similar to the EU-Japan Economic Partnership Agreement:

EU-Japan Economic Partnership Agreement	UK-Japan Comprehensive Economic Partnership Agreement
Chapter 1    General provisions	Chapter 1   General provisions
Chapter 2    Trade in goods	Chapter 2 Trade In goods
Chapter 3    Rules of origin and origin procedures	Chapter 3 Rules of origin and origin procedures
Chapter 4    Customs matters and trade facilitation	Chapter 4 Customs matters and trade facilitation
Chapter 5    Trade remedies	Chapter 5 Trade remedies
Chapter 6    Sanitary and phytosanitary measures	Chapter 6 Sanitary and phytosanitary measures
Chapter 7    Technical barriers to trade	Chapter 7 Technical barriers to trade
Chapter 8    Trade in services, investment liberalisation and electronic commerce	Chapter 8 Trade in services, investment liberalisation and electronic commerce
Chapter 9    Capital movements, payments and transfers and temporary safeguard measures	Chapter 9 Capital movements, payments and transfers and temporary safeguard measures
Chapter 10  Government procurement	Chapter 10 Government procurement
Chapter 11  Competition policy	Chapter 11 Competition policy
Chapter 12  Subsidies	Chapter 12 Subsidies
Chapter 13  State-owned enterprises, enterprises granted special rights or privileges and designated monopolies	Chapter 13 State-owned enterprises, enterprises granted special rights or privileges and designated monopolies
Chapter 14  Intellectual property	Chapter 14 Intellectual property
Chapter 15  Corporate governance	Chapter 15 Corporate governance
Chapter 16  Trade and sustainable development	Chapter 16 Trade and sustainable development
Chapter 17  Transparency	Chapter 17 Transparency
Chapter 18  Good regulatory practices and regulatory cooperation	Chapter 18 Good regulatory practices and regulatory cooperation
Chapter 19  Cooperation in the field of agriculture	Chapter 19 Cooperation in the field of agriculture
Chapter 20  Small and medium-sized enterprises	Chapter 20 Small and medium-sized enterprises

Chapter 21  Dispute settlement	Chapter 21 Trade and women's economic empowerment
Chapter 22  Institutional provisions	Chapter 22 Dispute settlement
Chapter 23  Final provisions	Chapter 23 Institutional provisions
	Chapter 24 Final provisions

The only difference in structure appears to be the insertion of a chapter on  "Trade and women's economic empowerment" in the UK's agreement with Japan.  The only chapters of either agreement that I have read in full are Chapters 14 of the EU and British agreements which cover intellectual property.  I shall write a separate article on the IP provisions of the UK-Japan agreement shortly.   

According to the British government, the UK-Japan agreement is not an exact copy of the EU-Japan agreement,  There are said to be some provisions in the UK-Japan agreement that have been tailored to British needs.  These may have been identified in the Final Impact Assessment of the Agreement between the United Kingdom of Great Britain and NorthernIreland and Japan for a Comprehensive Economic Partnership and The UK–Japan Comprehensive Economic Partnership Benefits for the UK.   For an independent view of the agreement from an international trade policy consultant and fellow of the UK Trade Policy Observatory, see Minako Morita-Jaeger  UK-Japan trade deal will provide political cover - but only a limited trade boost of 27 Oct 2020 on the politics.co.uk website.

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

Brexit Briefing September 2020

Standard YouTube Licence

Jane Lambert

The event for which September 2020 will be remembered was the introduction of the United Kingdom Internal Market Bill    Why the Bill was needed at all or at any rate while negotiations on the new partnership with the European Union are at a critical stage is far from obvious.  As I said in The United Kingdom Internal Market Bill  19 Sept 2020 "my first impression on reading through this bill was that there was nothing in it that did not already fall within the scope of existing legislation except perhaps Part 5."

As even Nigel Farage could see, a stiff response from the European Commission was to be expected and perhaps even justified:

Forget Theresa May and Michael Howard - Johnson's conduct is now making even Nigel Farage seem sensible and reasonable https://t.co/llqrXJHVLi

— david allen green (@davidallengreen) October 1, 2020

If the UK is to leave the customs union and single market and the Republic of Ireland is not, there have to be customs controls at the border between the Irish Republic and Northern Ireland unless it is placed somewhere else. The only other place they could be located is between the ports of Great Britain and Northern Ireland.  That is what Mrs May said no British Prime Minister could ever do.

It seems unlikely that this difficulty was not foreseen by Mr Johnspn or members of his party when they voted for the European Union (Withdrawal Agreement) Act 2020 which ratified the Agreement on the withdrawal of the United Kingdom of Great Britain and Nothern Ireland from the EuropeanUnion and the European AtomicEnergy Community.  The only explanation that occurs to me is that the Messrs. Johnson, Gove and Lord Frost hoped to renegotiate the withdrawal agreement in the new partnership talks.

Since art 50 (2) of the Treaty on European Union required the negotiators to take account of the framework for the UK's future relationship with the EU which was supposed to be expressed in the Political Declaration, the EU negotiators were mandated only to flesh out the details of that framework.  That is the substance of their draft treaty of 18 March 2020.  When Johnson, Gove, Frost and company refused to consider that draft the talks became deadlocked allegedly on state aids, fishing and dispute settlement.

If that surmise is right the United Kingdom Internal Market Bill could have been intended to jolt the EU into making concessions.  The threat is that if nothing is done the Irish government will be forced to police the border with Northern Ireland that could lead to political instability in the Republic as well as (possibly but from the Briitish point of view much more affordably) in Northern Ireland.   If that is the tactic it is not clear that it will work for the Commission announced at 10:00 this morning the first step in taking legal action against the UK.  We should know fairly quickly for both sides agree that the middle of October is the cut-off point for ratification of any new partnership agreement by the parties' legislatures before the end of the year,

Other developments in September have been the Agreement in Principle on a Comprehensive Economic Partnership with Japan 12 Sept 2020, exploratory talks with the governments of the parties to the Comprehensive and Progress Agreement on the Trans-Pacific Partnership and continuing talks with the US government on a possible trade deal.

Anyone wishing to discuss this article or any of the issues discussed should call me on 020 7404 5252 during office hours or send me a message through my contact form.

The United Kingdom Internal Market Bill

 

Author Henry Holbein

Jane Lambert

The publication of the UK Internal Market white paper on 16 July 2020 and the subsequent consultation that ended on 9 Sept 2020 must be one of the least publicized announcements of government policy ever.  Although I have received a lot of emails from the government about brexit ranging from customs arrangements to information for British citizens who wish to continue to live in different EU member states I can't trace any notification about this one.   I can find nothing about the white paper in the press in the days following its publication.  The white paper's publication seems to have escaped other bloggers' attention including Professor Grey whose Brexit Blog rarely misses a truck.

According to the explanatory notes on the United Kingdom Internal Market Bill, the purpose of the legislation is to implement the proposals set out in the white paper.  Those proposals are said to be driven by "three overarching policy objectives:

a. to continue to secure economic opportunities across the United Kingdom; 

b. to continue to increase competitiveness and enable citizens across the UK to be in an environment that is the best place in the world to do business; and 

c. to continue to provide for the general welfare, prosperity, and economic security of all UK citizens."

The bill has already received considerable attention because of the language of clause 45 (1) that certain provisions will have effect "notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent ."   As the Northern Ireland Secretary admitted, that provision will breach a treaty, namely the 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 Her Majesty's government signed and Parliament ratified just a few months ago.  That clause has led to resignations from the government and the senior civil service, threats of legal action from the Commission and warnings from the Speaker of the House of Representatives and other senior US politicians of both parties.

The title of the bill is curious because the United Kingdom is and always has been a unitary state albeit with devolved administrations in Belfast, Cardiff and Edinburgh.   It is important to stress than devolution is not the same as federalism which is the pooling of sovereignty by sovereign states.    Devolution is the delegation of central government functions which theoretically (and in the case of Northern Ireland) has actually been recalled.   The expression "internal market" was originally interchangeable with the term "single market" which was the process by which the EU member states entrusted the regulation of the EU economy to the Commission.   It is as odd for a nation state to describe its domestic economy as an "internal market" as it was for Thomas Cronwell to declare the southern part of an offshore island as "an empire" in The Ecclesiastical Appeals Act 1532.  Perhaps rather more absurd for the policy of 1532 statute was to assert that the King of England was equal to the Pope and Holy Roman Emperor.  Possibly equivalent to British negotiators' insistence in the new partnership talks that the 66 million inhabitants of the UK and the 450 million inhabitants of the remaining EU member states are sovereign equals. 

The bill consists of 54 clauses divided into 7 parts and 2 schedules.   Part 1 (clauses 1 to 14) and Schedule 1 is concerned with "UK Market Access Goods", Part 2 (clauses 15 to 21) with "UK Market Services", Part 3 (clauses 22 to 28) and Schedule 2 with Professional Qualifications and Regulation, Part 4 (clauses 29 to 39) with Independent Advice and Monitoring of the UK Internal Market, Part 5 (clauses 40 to 45) with Northern Ireland, Part 6 (clauses 46 to 47) with Financial Assistance and Part 7 (clauses 48 to 54) with Final Provisions.   My first impression on reading through this bill was that there was nothing in it that did not already fall within the scope of existing legislation except perhaps Part 5 in so far as this bill purports to resile from the UK's treaty obligations.  As I am about to lose my right to represent clients in the Court of Justice of the European Union, the Boards of Appeal of the EU Intellectual Property Office and the Unified Patent Court as well as my rights under the Legal Services Directive, I wondered whether Part 3 would entitle me to practise in Edinburgh or Belfasr but it is clear from Schedule 2 that it would not.

Anyone wishing to discuss this article or the bill in general may call me on 020 7404 5252 or send me a message through my contact form.