Brexit discussion thread II

Capt'n Midnight wrote: »

Brexit: Theresa May says UK leaving EU court's jurisdiction

As long as May is in power its a very Hard Brexit so no customs union, and lots of other babies throw out with the bath water.

Makes a trade deal much harder. The EU should counter with setting up an arbitration court with a UK Judge and one for each EU country.

Hopefully this will put an end to people calling May a remainer.

steddyeddy wrote: »

The North is going to be hit hardest in this.

But will the DUP be punished by the electorate for helping get the pro-Brexit vote over-the-line despite knowing about the potentially dire consequences for the north? Nope. Fenian fear factor will keep their voter base loyal.

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On a country by country basis [Ireland] remains [NI's] key export partner. In 2016, goods exports to the RoI were valued at £2.4 billion, equivalent to 31% of total goods exports value and approximately 56% of the value of goods exported to the EU.

assemblyresearchmatters.org

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What the SDLP and SF need to do now is work towards having a border poll to get the UI gears in motion.

Dairy products may take a hit as they often, travel both ways eg cheese.
The best export for live cattle, is Turkey. Live cattle export of weanlings go to Spain and Italy. These are what underpin the factory trade here.

UK always had a cheap food policy. Quality exports elsewhere are in our farmers best interests but probably some pain in the short term.

steddyeddy wrote:

Ireland will be hardest hit out of the EU 27 IMHO.

Not only do we have to deal with a customs border with our main trading partner, but double the hassle with anything being exported to the continent that goes via the UK and the English channel.

steddyeddy wrote: »

Ireland will be hardest hit out of the EU 27 IMHO.

Ireland faces particular complexities but, ultimately, growth has remained strong which provides a barometer of how we are perceived as a 'bet' for investment. There are 27 member states, aside from the UK, and Ireland is one of the few being considered as a top-tier investment candidate alongside Germany, BeNeLux and to a certain extent France. Consider the illustrious old powers we find ourselves being considered alongside in financial services, and the fact that this country, formerly the poor man of Western Europe, is still only in its relatively early generations as a financial centre. Also bear in mind the context of there being almost two dozen other member states which allow businesses access to the single market, and a host of other member states with favourable corporate tax regimes -- and yet we remain one of the leading candidates.

None of this should be taken as flag-waving or as me ignoring the risks which Brexit bears for Ireland. I think it's an utter tragedy for all of Europe and will serve to diminish the influence of both the UK and Europe as a whole. The Irish border is an almighty headache but there is absolutely no credible appetite on the part of the EU, the Irish & British governments or the NI Executive to complicate the border any more than it absolutely needs to be. This differentiates it from historical border disputes which were often the offshoot of war or tension and in that respect all sides will seek to formulate as seamless a solution as possible. We should also bear in mind that our importance to the UK will also grow -- as we would stand as their English-speaking, common law and closely bound counterparts within the EU. They are aware that a friendly Ireland will be a key ally in being kind to British interests within the EU institutions and that they have absolutely nothing to gain from antagonising Ireland or acting in such a way that would significantly stifle our interests.

If we are to address the weaknesses we bear as a result of our exposure to this act of supreme folly by the UK, then we must be acutely aware of the opportunities on which our strengths allow us to capitalise. Those strengths are numerous enough to justify what is being described as a fair but stubborn stance towards the UK. They have hurled themselves into a truly shambolic mess and we, as a Member State of one of the world's great economic powers, can and I believe will adapt to the changing world as we have done before.

I read a rather jingoistic comment somewhere that Britain has survived Napoleon and Hitler - and will survive Brexit. A true statement in my view. We too have survived much -- survived and indeed, thrived.

solodeogloria wrote: »

Good morning!

The UK won't agree to this. If the court is to oversee an arrangement with the EU and the UK then it has to have equal representation and a third party to ensure that it isn't biased towards the EU.

It very much depends on how you look at things.

The question of court jurisdiction arises if we assume that some kind or kinds of continued co-operation or participation emerges as part of the Brexit deal. The UK continues to participate in the European-wide patent system, say, or in the European Arrest Warrant system. The likelihood is that there’s be a number of continuing arrangements of this kind that will be considered and/or agreed, so court jurisdiction is going to come up, The question of jurisdiction arises because these are all law-based systems, and questions about what, e.g. European patent law provides or what it means or how it applies in particular circumstances ultimate have to be resolved by a court.

Right. If you regard such a continuing arrangement as a new, bilateral arrangement between the UK and the EU, then you might feel that the appropriate court is a body appointed jointly by the UK and the EU. That, I think, is where the UK is coming from.

But if you regard such a continuing arrangement as, well, a continuation of an existing arrangement in which a number of states, currently including the UK, already participate, continued participation by the UK doesn’t and shouldn’t give the UK any greater position or status than it already has, or than other participating states have or are going to have. It doesn’t get its own tribunal; disputes involving it go to the same tribunal as disputes involving any other participating states. And that, I think, is where the EU is coming from.

There’s also a practical side to the EU’s stance. The patent system, or the arrest warrant system, or whatever, is a unified system with the same laws applying to everybody. They don’t want to open up the possibility that the same laws are differently interpreted and applied by different tribunals depending on whether they arise in a situation in which the UK is concerned, or one in which it isn’t.

Even if there were to be a separate tribunal for cases involving the UK or UK-based parties, it would be bound to apply the rulings, decisions, interpretations, etc of the ECJ regarding the laws in question. May is in fact shaping up to accept this when she talks about the ECJ having no “direct jurisdiction” in the UK. She’s accepting that whatever tribunal is set up will be bound to apply relevant ECJ rulings, precedents, etc. But that’s unlikely to satisfy the EU. Currently, if an issue of EU law arises in proceedings in (say) the French courts, the parties can ask the French court to refer the question of EU law to the ECJ for a ruling on the European law point, after which the case is returned to the French court to apply the law to the dispute before it. This is a long standing mechanism intended to ensure the consistent application of European law throughout the Union. The Union is unlikely to accept a situation in which the UK participates, and (say) a French person or firm in a case with a UK person or firm doesn’t have the same right to have the relevant European law authoritatively interpreted by the ECJ.

The compromise may be a fig-leaf whereby (a) there’s a special tribunal to hear disputes involving a UK party, but (b) that tribunal is bound by the decisions and rulings of the ECJ, and (c) the tribunal can refer points of EU law to the ECJ for a ruling and must do so if either party before them requests it, and probably (d) if the parties to a dispute agree to they can by-pass the tribunal entirely and go straight to the ECJ. Logically we should also probably say (e) the whole thing should be paid for by the UK government since they’re the only party that want the tribunal and probably the only party that will ever use it, but to enable the UK to save some face that might not be insisted upon.

solodeogloria wrote: »

It has been posted here that you need to come under direct ECJ jurisdiction in order to have a free trade deal with the EU. That isn't true. There is no reason why any sensible third country would agree to such a biased arrangement.

I think this is correct, as far as your traditional free trade deal (involving limited or no customs and import duties) goes. The EU has several such deal with third countries, and they don’t involve submission to the ECJ.

However if you’re looking for something a bit wider it gets murky. Under a traditional free trade deal, a French company (say) could import widgets from the UK and pay no import duties. But the responsibility of ensuring that the widgets complied with EU safety standards, market requirements, etc for widgets would lie with the French importer. The goods would be liable to inspection (and, therefore, delay) at the point of import. This would obviously tend to make British widgets less attractive than widgets produced in, e.g., Germany, where these issues wouldn’t arise.

The “no ECJ jurisdiction” rule works fine here, because if a dispute does arise about whether the widgets are compliant or not, that’s a dispute between the French importer and its French regulator. That dispute can go to the ECJ if necessary; the UK producer is obviously going to be affected by the outcome, but strictly speaking there’s no UK party in the case so British amour propre is not offended.

But if you look for a more radical free trade deal, in which UK exporters are given a right to export to the Union without inspection, delay, etc, in return for the UK agreeing to keep its widget regulations in line with agreed norms, now we have a problem. Now, responsibility for compliance with market requirements does not lie with the French importer, but with the UK producer and/or its UK regulator. Now, any dispute about whether the widgets comply or not is a dispute involving a UK party. And the EU won’t want to sign a free trade agreement of this kind in which questions about what EU widget regulations require are not resolved, ultimately, by the ECJ. So ECJ jurisdiction becomes an issue.

So the UK may have a trade-off here; accept some measure of ECJ jurisdiction, or settle for a free trade agreement that leaves UK producers at more of a disadvantage than they need to be.

(Come to think of it, that’s Brexit in a nutshell, really.)

Peregrinus wrote: »

<...>

The question of court jurisdiction arises if we assume that some kind or kinds of continued co-operation or participation emerges as part of the Brexit deal. The UK continues to participate in the European-wide patent system, say, or in the European Arrest Warrant system. The likelihood is that there’s be a number of continuing arrangements of this kind that will be considered and/or agreed, so court jurisdiction is going to come up, The question of jurisdiction arises because these are all law-based systems, and questions about what, e.g. European patent law provides or what it means or how it applies in particular circumstances ultimate have to be resolved by a court.

<...>

'European patent law' is entirely disconnected from EU Treaties and EU membership. It is governed by the European Patent Convention, which is a standalone international treaty. European patent law governs the obtaining of 'European' patent rights through the European system, but historically does not involve itself with ownership and enforcement post-grant: a European patent is a misnomer, practically it is only a single 'entity' until grant, then it becomes a collection of national (granted) patents amongst owner-selected EPC member states. So in a European context, patent enforcement is a national matter, handled under national patent law.

That is all, except for the mooted new Unified Patent Court jurisdiction (which may not come about in the end, or from which the UK may be automatically expelled if it comes about before March 2019, because Brexit), which proposes to set up a single pan-European jurisdiction for litigating (and so doing away with the uncertainty and Himalayan costs of litigating the same patent rights in different countries with potentially different outcomes in each). 40 years in the seeking and making, ironically enough very significantly at the efforts of the UK profession, and now in the kibosh at the 11th hour due to Brexit.

But even then, the ECJ's role in that context shall be 'simply' its usual one, that of the top level arbiter for interpreting EU law for purposes of maintaining communal coherency/consistency, if a case in the UPC should involve EU law (for whatever reason/set of facts, typically anti-competitive practices hinged upon patent rights breaching EU trade laws). Not that of an actual Court (the UPC will be its own jurisdiction, with its own Courts, which will decide all cases, with or without the ECJ's input acc. to whether they have referred a matter of interpretation to the ECJ or not).

Even without participating in the UPC, the UK (applicants, IP professionals) will still be able to 'work' the EPC without any issue. It's not tied to its EU membership at all.

On paper that is, because -and of course- I have it on good authority that our German and French competitors (at least) have been busy playing on the perception by non-European IP applicants (US, CN, JP, <etc.>) that UK practitioners, along with EU trademark and designs at the EUIPO, will not be able to continue representing before the European Patent Office (which is patently false), and strongly suggesting to them that keeping European patent work alone in the UK, when the UK will lose its capacity to represent in European trademark and design matters, makes little economic sense.

Peregrinus wrote: »

Well, perhaps the example of patent law that I chose was not a good one. But I think my general point holds good.

It certainly does

Use trademarks or designs instead, particularly the 'proper' European ones (within the unitary meaning of the adjective): these forms of IP are going to make judiciary fireworks with Brexit, let me tell you

On March 2019,
what happens to the UK 'share' of existing EU trademark and design rights?
what happens to live EU unregistered designs?
what happens to designs in the grace period for CRD filings?
what happens in pending EUTM/CRD applications and EUTM oppositions wherein a party is represented from the UK?
what happens insofar as exhaustion of rights is concerned?
what happens to <....>

Rights owners have long been asking us about all of this, and still are, with increasing frequency.

And yet, we're still hearing only static about all of this, from Westminster so much as from Brussels. And trust me, it's not for the lack of asking them, for the past 18+ months.

Now, that's all just for the "mechanics", as well. When you consider the pivotal role which the ECJ has in their enforcement and other causes of judiciary action, and has had since their inception in the early 90s...

...all the same, note that divergence between the UK's and the ECJ's respective case laws in IP matters may not become insurmountable, as verifiable e.g. in respect of software patenting: UK Courts, and therefore the UK IPO, have long installed a different legal test to assess the patentability of a computer-implemented invention in the UK, relative to the legal test developed by the European Patent Office's "Court" (Boards of Appeal) for that same assessment, but in practice the respective outcome exhibits strong correlation, and so reasonable certainty of outcome irrespective of the test considered. So, no reason to think that UK Courts and the ECJ could not evolve case law about trademark and designs over time on, a similar 'different-but-the-same' trajectory.

But that's crystal ball gazing, considering the practical legal headaches to solve first.

Brexit: Britain says it should still be able to influence EU regulations after leaving EU


The Brexiters are going all in on having there cake and eating it to. I can't help but think there doing all this on purpose, with unrealistic exceptions, and will then turn around and blame the EU, when it all goes bad for them.

What part of "Brexit means Brexit.", do the Brexiters not get ?

It astonishing that none of them can see the mess there in.