By Peter Ungphakorn
POSTED OCTOBER 26, 2020 | UPDATED JANUARY 25, 2021
Britain’s new trade agreement with Japan contains some improvements over the EU-Japan deal it rolls over, but some of London’s claims don’t stand up to scrutiny.
“It’s a roll-over of the EU deal with extra bits. And that’s a success too. That’s still better than we thought we’re going to get. Why not just say that?” tweeted trade advisor Anna Jerzewska.
She was commenting on the claim by International Trade Secretary Liz Truss that this “first trade agreement” for Britain “as an independent trading nation” has “major wins that would be impossible as part of the EU.”
There are some differences, perhaps most notably in digital trade. But that’s not my field so I’ll leave it for others to comment. Similarly with the provisions on rules of origin, which may have a number of problems, judging by a stream of expert comment on Twitter.
Rather than describe the agreement for what it is — a continuity deal, largely preserving what the UK and Japan have under the EU-Japan agreement, with some enhancements — British ministers are keen to emphasise the difference with the EU, that the UK has more than was possible under the EU-Japan deal.
This is particularly the case with geographical indications, which are names used to identify where a product comes from, along with its special characteristics.
The truth is that texts of the UK-Japan and EU-Japan agreements are only marginally different, and the lists of British products protected are identical in both agreements.
In other words, the two agreements are more or less identical on geographical indications. It’s far too soon to tell whether the marginal difference in the texts means a real difference in practice.
Nevertheless, the UK Department of International Trade claims that the benefits of the deal include:
“A boost for UK brands with protections for more iconic UK agricultural products, from just seven under the terms of the EU-Japan deal to potentially over 70, including English sparkling wine, Scotch beef and Welsh lamb.”
On Friday October 23, 2020, Greg Hands, Trade Policy Minister in the International Trade Department, went further on BBC Radio Four’s PM programme (this link is available for 30 days from the broadcast date):
“The EU-Japan deal has only seven UK geographic indicators [sic], we have up to 70. … So, for example, we’ve included things like Stornoway Black Pudding, the potential for Wensleydale Cheese, English Sparkling Wine, Scotch Beef etc, etc.”
Unsuspecting listeners would get the impression that the 70 names and that list of examples are a done deal. They aren’t. Stornoway Black Pudding certainly is not included. “Potential” could mean anything. They all still have to be negotiated. But there was nothing to stop the UK seeking the same under the EU-Japan agreement either. “Potential” applied there too.
So what’s different? And what’s the same?
The text on geographical indications is in Chapter 14 (intellectual property) of the UK-Japan agreement, Sub-Section 3, from page 278. This text is almost identical to the one in the EU-Japan agreement with references to the EU changed to the UK.
The only real difference is Article 14.34 (“Amendment of the lists of geographical indications” — Article 14.30 on page 382 in the EU-Japan version).
Its first four paragraphs are a straight copy-paste from the EU-Japan agreement. Those four paragraphs are about adding or removing new names, including opposition procedures, exemptions for names that might mislead (if they coincide with plant names) and for names that have become generic, the ability to remove names that are no longer protected in the country of origin (a standard criterion for protection), and consultations on adding new names.
The UK-Japan agreement adds a fifth paragraph. This essentially expands on the consultations already in paragraph 4. The two countries now commit to start paragraph 4 consultations “as soon as practically possible”.
There are also references to a “Committee on Intellectual Property” (created by Article 14.61) and a “Joint Committee” (set up in the chapter on institutional arrangements, Article 23.1, to oversee the whole agreement) to consider amendments to the annexed list of geographical indications.
Paragraph 5: “The Parties shall, as soon as practically possible after the entry into force of this Agreement, enter into consultations with a view to adding to the lists of geographical indications in Annex 14-B, existing geographical indications identifying a good as originating in the territory of a Party and protected in such territory in accordance with its laws and regulations, which are not yet listed in that Annex. Each Party shall provide to the other Party the list of geographical indications it seeks to add to Annex 14-B for protection in the territory of the other Party, as well as their specifications, and the transcriptions into Japanese (for geographical indications of the United Kingdom) or the Latin alphabet (for geographical indications of Japan) for both the geographical indications and their specifications. As soon as practically possible after receipt of such information and in accordance with its laws and regulations, each Party shall conduct an examination and opposition procedure for those geographical indications. As soon as practically possible after the completion of the examination and opposition procedure, the Committee on Intellectual Property shall make recommendations to the Joint Committee on amendments to Annex 14-B to add the names that are eligible for protection as geographical indications, in accordance with paragraph 3 of Article 14.61.”
There are two ways of reading this paragraph.
Either it simply fleshes out details of how the rest of Article 14.34 would work and makes little substantive difference when compared with the EU-Japan text, which is pretty standard in all EU free trade agreements. For example, a year ago in November 2019, the EU was adding 46 new names to the list in the EU-South Korea agreement.
Or it signals a stronger intention by the UK and Japan to add names to the list and to do it quickly.
A British government explainer says it’s the latter and that new names will be submitted in January 2021. Time will tell.
As for the British names that are currently protected under the UK-Japan agreement, they are identical to the list in the EU-Japan Agreement. There are six, not seven (unless the two Stiltons are counted separately). They are:
- Scottish Farmed Salmon
- West Country farmhouse Cheddar cheese (but “cheddar” on its own is generic)
- White Stilton cheese / Blue Stilton cheese
- Scotch Whisky
- Irish Cream (a geographical indication covering the whole island of Ireland)
- Irish Whiskey / Uisce Beatha Eireannach / Irish Whisky (another geographical indication covering the whole island of Ireland)
So. No Stornoway Black Pudding. No Wensleydale Cheese, No English Sparkling Wine. No Scotch Beef. No “etc, etc”.
Which raises a couple of questions.
First, if the UK wanted its other names included, why didn’t it simply ask the Japanese to add them?
The answer is probably the length of time needed to submit names and go through opposition and registration procedures. The fact that these can take some time suggests adding all 70 UK names is not going to be as quick as the government suggests. And it could explain why the UK didn’t try to add them under the EU-Japan agreement, even though the possibility was open.
Second, it’s unclear how many of the UK’s protected geographical indications are going to be of commercial value in the Japanese market. Clearly those three spirits are, along with salmon. West Country Farmhouse Cheddar and Stilton may have potential value along with some British wines, but as someone pointed out, producers would still need to invest in marketing the brand to make it commercially significant.
Do we know the potential on the Japanese market for Stornoway Black Pudding and Melton Mowbray pies?
Late on Monday October 26, the International Trade Department tweeted a short thread defending its claims. This followed comments on Twitter and a brief follow-up comment by Evan Davis on Radio Four’s PM — that minister hands had “slightly jumped the gun” with his claims the previous Friday.
The tweets said:
“The new UK-Japan trade agreement is a British-shaped deal that goes substantially further than the existing EU deal.
“It includes new provisions allowing more world-famous British products to receive protected recognition in Japan, such as Scotch beef, Welsh lamb, and English sparkling wine.
“Under CEPA [Comprehensive Economic Partnership Agreement, the official name of the UK-Japan deal], it has been agreed that all eligible British products can be put through the Japan GI approval process. Notwithstanding exceptional circumstances — like a Japanese producer of Cornish clotted cream opposing that GI — this should only take about 5 months.
“We will put forward around 70 GIs in Jan – only 7 were covered by the EU deal. Under EPA [Economic Partnership Agreement], the EU was not able to put forward any products without explicit Japanese agreement. Japan has not approved any further EU GIs since EPA was signed.”
The tweets address some of the points raised above. If they are correct, then the UK will submit its 70-or-so geographical indications in January 2021, and they should be registered in Japan by June. Note that the request must go through two committees set up by the UK-Japan agreement in addition to opposition/registration procedures.
One point is unclear. Since paragraphs 1–4 of Article 14.34 in the UK version and 14.30 in the EU version are identical why is it the case that “the EU was not able to put forward any products without explicit Japanese agreement” whereas the UK can?
Meanwhile, John Clarke, a senior EU trade and agriculture official tweeted that “UK at the time [presumably the EU-Japan negotiations, subsequently copied into the UK-Japan deal] chose not to propose many GIs”:
January 25, 2021 — adding the link to the UK government explainer
October 27, 2020 — adding the UK government’s response, and John Clarke’s tweet
Photo credits: all rights-free CC0
Scotch — Ri Butov via Pixabay
Sake — Tom Crew via Unsplash