Like the Curate's Egg - The White Paper on the Future Relationship between the UK and EU

Curate's Egg

Author George du Maurier

Jane Lambert

The dialogue between the curate and his bishop runs as follows:

Bishop: "I'm afraid you've got a bad egg, Mr Jones";

Curate: "Oh, no, my Lord, I assure you that parts of it are excellent!" 

The white paper on The future relationship between the United Kingdom and the European Union has not satisfied many people on either side of the Brexit debate, but it is not all bad.   In fact, just like the curate's egg two parts of it could well be described as excellent.

One is a commitment at para 148 to:

"explore a new bilateral agreement with the EU, which would cover a coherent package of rules on jurisdiction, choice of jurisdiction, applicable law, and recognition and enforcement of judgments in civil, commercial, insolvency and family matters. This would seek to build on the principles established in the Lugano Convention and subsequent developments at EU level in civil judicial cooperation between the UK and Member States. This would also reflect the long history of cooperation in this field based on mutual trust in each other’s legal systems. The Government will also continue to work closely with the devolved administrations to ensure that the future arrangements for cooperation with the EU take into account the separate and distinct legal systems in Scotland and Northern Ireland."

The other is a statement of intention at para 151 to explore staying in the Unified Patent Court and unitary patent system after the UK leaves the EU.  As I said in Just where does Mrs May's Speech leave the Unified Patent Court? 18 Jan 2017 NIPC Law, it is hard to see how the UK can continue participate in the project after it leaves the EU for all the reasons that I set out in that article.  Nevertheless, as I also said in that article "it is clearly in the interests of British business (as it is is also in the interests of American, Chinese, Japanese and Korean business) to promote the unitary patent and the UPC since it will reduce patent prosecution and enforcement costs."  There appears to be a commitment to "work with other contracting states to make sure the Unified Patent Court Agreement can continue on a firm legal basis."  The government appears to be saying that regardless of whether the UK can remain a party the UPC Agreement will not try to scupper it.

As the white paper notes, the UK has ratified the UPC Agreement (see British Ratification of the UPC Agreement - Possibly the best thing to happen on World Intellectual Property Day 26 April 2018).  German ratification is the only condition that remains to be fulfilled before the Agreement can come into effect. A bill to ratify the UPC Agreement has passed through both chambers of the German federal parliament and is now awaiting presidential assent (see Jane Lambert One Year to Brexit - Are Rumours of the Death of the Unified Patent Court Agreement Greatly Exaggerated?  29 March 2018 NIPC Law). The president has delayed giving his consent at the request of the German constitutional court while is considers a constitutional challenge by Dr Ingve Björn Stjerna to the ratification of the Agreement.  Dr Stjerna has helpfully reported the progress of the litigation on his website.

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