Wednesday, 28 September 2016

Decisions, decisions, decisions.....

The UK government has many decisions ahead of it including the BIG one, of when (or whether) to trigger Article 50: and a small one, of whether to ratify the UPC.

It is near certain that consideration of whether to ratify the UPC will not factor highly in the decision of whether or not to trigger Article 50: however the decision of whether or not to trigger Article 50 will affect the outcome of ratification.

Some of the concerns about  ratification address hypothetical circumstances of any post-Brexit arrangement being found illegal, and there being no satisfactory solution. Legal certainty does not exist in a politically uncertain world, but it needs to be dealt with.

Both UK Counsel opinion referred to in this post and opinions of others, [for example the position paper  of the Deutscher Anwaltverein (DAV)], consider this legally feasible.

Politically therefore, the question may resolve to, “What decision should the UK make to maximise the chances of a good outcome from a UK perspective?”

The chart below shows a decision tree on the (seemingly reasonable) assumptions that:-
  • If the UK triggers Article 50 before ratification no form of arrangement that permits continued UK participation will be developed [simply because politically that would be extremely messy and would require goodwill that may be missing – see part IV of the DAV position paper].
  • If the UK ratifies before triggering Article 50 an arrangement that permits continued UK participation could be developed if desired [See UK Counsel opinion and part I of the DAV position paper].
  • The decision to trigger Article 50 is independent of UK ratification of the UPC (because in the scale of things, we are small beer) so the probabilities for triggering Article 50 are identical on both sides of the chart at the value “x”.
  • If Article 50 is triggered after UK ratification of the UPC, with no ongoing UK participation in the UPC post-withdrawal, the probability of no transitional provisions preserving rights is assumed to be close to 0. It is in no government’s interests for rights to be lost.

In the chart, if Article 50 is triggered, the probability of an arrangement permitting ongoing UK participation in the UPC (if wanted) is “y” and the probability of this being found legal by the CJEU is “z”.

As can be calculated the probability of a good outcome (a functioning UPC including the UK as a member) is:-
  • if UK does not ratify before the decision of whether to trigger Article 50 = (1-x)
  • if the UK ratifies before the decision of whether to trigger Article 50  = (1-x) +x.y.z

Regardless of the values of x, y and z (which must all be positive and less than 1) – the probability of a good outcome if the UK ratifies before triggering Article 50 is greater than if the UK does not ratify. 

If Brexit means Brexit and x=1 the difference is between having a chance and no chance.

A sheer self-interested calculation should tell the UK government to ratify now.   


  1. An interesting analysis, but I suspect the reality is far more complex than is suggested.

    In particular, the conclusion flows inevitably from the bald assumption that there is zero chance of UK involvement in the UPC if we trigger Art. 50 before ratification. The analysis is therefore superfluous, given that the conclusion is inevitable if you accept the starting assumption.

    However, that assumption is questionable. If we assume that the UPC agreement reflects a Good Thing that the rest of the EU wants to happen*, then UK participation in the UPC will be something that is desirable from their perspective and will hence a useful bargaining point in the post-Art. 50 negotiations. On that basis, it would be very much in the UK's wider interests (as opposed to those of the IP profession) to withhold ratification until the Art. 50 negotiations are complete.

    (*if it does not, then one wonders why they agreed it. One would also have to question the validity of identifying this as a good outcome)

  2. You've left the house and slammed the door: do you expect any favours?

    It cannot be doubted, that asking our neighbours to let us have a deal after Brexit has a much smaller probability of success than letting us continue to use the UPC post Brexit.

    Even if we don't get the run of the house, we may be allowed to stay in the kitchen.

    If you want to kill UK participation in the UPC, play for time.

  3. No-one should expect any favours in intergovernmental negotiations. It doesn't work that way, never has, whether between EU states or otherwise. Nations negotiate in their own interests, as they should do in a democratic system.

    So we will be negotiating with governments that are meant to be there to get the best deal for their own electorate. If they think that a UPC with the UK in it is good for their national interests, and we are offering that despite the exit vote, then they *should* be receptive to that. If they don't think that such a UPC is in their interests, then one wonders how the UPC agreement came about and whether it is worth sustaining.

    It is of course quite possible that the other governments will act like toddlers and try to hurt us out of spite - even if that is against the interests of their own electorates. If so, that does rather support the decision to leave the EU and remove these people from the process of making decision about UK laws.

  4. Don't you think the "toddlers" are the ones who went off in a huff? And don't you think the grown-ups might put the toddlers on the naughty step?

  5. You can apply whatever label you want to either party; it doesn't change the negotiating position. It's just a matter of your personal perspective and attitude.

    And yes, I did acknowledge the possibility/prospect that the other governments would act to punish us.