The gateway to Europe
The ‘special relationship’ between Ireland and the UK is a bond which both countries will keep to the fore in Brexit-related negotiations. Ireland will strive to protect that relationship and, given the close ties and importance of the UK to Ireland, the countries will seek to guarantee uninterrupted access to each other’s markets.
Decisions by the UK courts in the area of patents, copyright and trademarks derive from almost identical statutory regimes and analogous application of laws. Post-Brexit, Irish courts will give due and proper regard to the history and rich content of IP and contract jurisprudence in the UK. In the future, UK judgments will continue to have persuasive authority in the Irish courts.
Many international businesses will be familiar with the UK system and laws, and therefore may look to Ireland for the pan-European effect. Currently, international IP cases are often run side by side in the UK and Ireland. This will continue, but there will be the added benefit of a decision in the UK probably being followed in Ireland and the latter constituting an EU national court outcome. Of course, Ireland will be the only English-speaking common law jurisdiction in the EU after the UK leaves.
As we know, the exploitation of IP is typically achieved through IP licensing and contracts. For EU contracts there has been commentary on whether Brexit may constitute a frustrating event leading to their termination. This is unlikely in the vast majority of situations. The main areas of concern and consideration appear to be those relating to governing law and jurisdiction of European-wide arrangements—what law will (or should) apply to licences and contracts and in which jurisdiction it will be best to enforce them.
It remains to be seen whether the UK and the EU agree to treaties similar to the Recast Brussels Regulation, and Rome I and Rome II. If similar arrangements are agreed then the issues may be limited. If the benefits of those regimes are not retained, Irish law and courts will be seen as a good option given the similarity of Irish laws to those of the UK, with a system based in the new EU for jurisdiction and enforcement.
Ireland hopes to be an attractive gateway to Europe for the UK. This is evident, for example, in the recent surge of UK lawyers seeking to additionally qualify in Ireland in order to benefit from EU legal professional privilege in certain cases, and to have a right of audience in certain EU courts and tribunals.
IP-related regulation
The EU heavily influences the regulation of IP-focused industries operating within the member states. ‘Passporting’, a term typically used in the financial services sector, has application across many industry sectors. For example, pharma regulation and product authorisation and financial services in the fintech space, are based centrally in the EU, and it is widely viewed that post Brexit, pan-European authorisation will have to be launched or obtained in a member state other than the UK.
The UK will obviously maintain the highest standards of regulation and protection in these areas, but the EU extension may be lost, subject to the outcome of negotiations on EU/UK treaties. Many UK businesses may look to Ireland as the source of a European ‘bolt-on’ to their existing business in the UK, to cover markets in the new EU. We expect international businesses to adopt a joint UK and Ireland strategy to access the UK and EU markets seamlessly.
Working with Europe
Ireland is, and will remain, a committed member of the EU. The IP laws and regulation that will apply to Ireland post-Brexit will be those of the EU. Ireland will continue to play an active role in European affairs, laws and regulation. However, given the proximity of Ireland and the UK, and the special relationship that exists, Ireland may serve an important role for the UK in maintaining a stable and consistent EU strategy.
John Whelan is a partner and leads the international technology practice at A&L Goodbody. He advises clients on commercial, technology, data, contract and IP matters. Whelan also advises tech and pharma companies establishing operations in Ireland. He can be contacted at: jwhelan@algoodbody.com
