Brexit View

[robbin]

alex_b Wrote:

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> My understanding is that as an EU member state we

> are automatically deemed compliant. When we become

> a third country we will need to be assessed by the

> European Commission as compliant, but crucially

> this cannot take place until we are a third

> country. I believe in the current draft withdrawal

> agreement has clauses to cover this, but clearly

> in the case of no-deal there would be a gap from

> the 29th March until such time as the Commission

> has made it's assessment.

>

> Just because we've maintained our standards

> doesn't mean that either the Commission will

> declare conformance on the 30th March without the

> proper review they would do with other third

> countries (that would probably be unlawful under

> EU and WTO rules) or that they'd necessarily find

> conformance (e.g. our domestic surveillance

> legislation may be an issue without EUCJ

> supervision).

>

> Of course this may be able to be resolved in the

> majority of cases by rewriting every contract with

> new GDPR compliant clauses, but this isn't

> necessarily possible in the next two months and in

> any case may not be agreed by counterparts in

> other EU states (who would bear a lot of the risk

> if the clauses weren't sufficient).

>

> As with most of these no-deal problems it isn't

> that other countries haven't found ways of

> resolving these issues without being part of the

> EU, but that those solutions have been built over

> time, on lower volumes of trade, with less tightly

> linked systems and their alternatives are more

> cumbersome and more expensive than the current

> relationship we enjoy. It would over time be

> possible to minimise the pain of this divergence,

> but in a no-deal scenario we would lose many of

> the legal agreements we depend on and would need

> to replace them with different agreements as a

> Third Country. In the interim there is no legal

> basis for a lot of cross border activities.

Then your understanding is in certain respects wrong.

The EU does not need to have completed an adequacy assessment of the UK's (obviously) GDPR compliant position before any personal data can flow - individual users of the data in question will need to show they are GDPR compliant - which as you will have seen over the last year or more has been something of a national obsession and now businesses are compliant (or should be by now). They should be able to satisfy the GDPR issues by amending their contracts, but that is a small issue and can be very quickly taken care of. There are EU compliant (accepted by the EU as compliant) model contractual clauses which can be used for that purpose (or so I understand).

There's a handy 'myth-busting' article on the ICO's website should you be a nerd like me.

Also, yet again, I note that the concentration on 'problems' arising from this issue is all one way (on EDF -not everywhere). Do you not think the EU as a responsible body looking out for their members' businesses would not want to ensure two way movement of data? I appreciate that (in keeping with the UK's amateurish negotiating stance) the UK has said we are going to accept data flows from the EU to the UK come what may, but things could change on that if the EU is intent upon some sort of a weird scorched earth policy. I can't see any reason why we should just surrender reciprocity and unilaterally agree something without a similar sort of level of grown up cooperation on the same issue from the other side to the negotiation (but then the UK has adopted a shambolic approach to the whole Brexit event, so I suppose we shouldn't be surprised).

I keep asking myself when it became ok in a negotiation, (i) to tell the other side you are really scared of certain possible outcomes in advance of a deal or (ii) to hand over concessions with nothing in return. Does anyone in the real world ever conduct commercial negotiations like that? Not in my experience they don't. Quite why all these commercially inexperienced civil servants/politicians seem to think that those are competent approaches to a negotiation fails me.

[alex_b]

robbin Wrote:

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> Then your understanding is in certain respects

> wrong.

Well the Brexit Select Committee and their witnesses seem to disagree with you (https://www.theregister.co.uk/2019/01/28/data_flows_in_a_nodeal_brexit_are_significant_concern_say_mps/). Nor do you seem to have read or refuted what I said.

> They should be able to satisfy the GDPR issues by

> amending their contracts, but that is a small

> issue and can be very quickly taken care of. There

> are EU compliant (accepted by the EU as compliant)

> model contractual clauses which can be used for

> that purpose (or so I understand).

I specifically said that (save a finding of adequacy which can only occur after the UK is a third country) "[o]f course this may be able to be resolved in the majority of cases by rewriting every contract with new GDPR compliant clauses". However, this is not cost free and may not be logistically or legally possible in the timeframe, for instance if you're a UK bank with customers in Germany are you able to enforce a contractual change on them substituting EU data processing for third country data processing based on model clauses. It may be possible but it's not the simple blinding certainty you suggest.

Even if it were legally and logistically possible I have a number of customers and colleagues in Europe who will not countenance data processing outside of the EU for reputational and commercial reasons. This is especially true after the Safe Harbour ruling and the ongoing Privacy Shield lawsuit. If the European counterparty wouldn't agree to a change to model clauses that stage you'd need to look at the individual contract to see if the UK party could enforce such a change or whether the UK party would be in breach post Brexit.

> Also, yet again, I note that the concentration on

> 'problems' arising from this issue is all one way

> (on EDF -not everywhere). Do you not think the EU

> as a responsible body looking out for their

> members' businesses would not want to ensure two

> way movement of data?

Yes that is why the EU have proposed a withdrawal agreement that covers this. It's our side of the negotiation that's threatening to walk away.

> I appreciate that (in

> keeping with the UK's amateurish negotiating

> stance) the UK has said we are going to accept

> data flows from the EU to the UK come what may,

> but things could change on that if the EU is

> intent upon some sort of a weird scorched earth

> policy. I can't see any reason why we should just

> surrender reciprocity and unilaterally agree

> something without a similar sort of level of grown

> up cooperation on the same issue from the other

> side to the negotiation (but then the UK has

> adopted a shambolic approach to the whole Brexit

> event, so I suppose we shouldn't be surprised).

There's this little thing called the rule of law. The EU could enter into a treaty (let's call it a withdrawal agreement) to cover this or failing that they could treat the UK as any other third country post-Brexit and make an adequacy determination in line with existing EU law. Doing anything else (like unilaterally determining adequacy outside of the legal process) would break WTO rules (which requires outside of trade agreements for countries to treat each other equally) and likely EU law. It might be the case that at the 11th hour a bunch of treaties will be agreed somehow to paper over these gaps but it seems like a very high risk game to play.

> I keep asking myself when it became ok in a

> negotiation, (i) to tell the other side you are

> really scared of certain possible outcomes in

> advance of a deal or (ii) to hand over concessions

> with nothing in return. Does anyone in the real

> world ever conduct commercial negotiations like

> that? Not in my experience they don't. Quite why

> all these commercially inexperienced civil

> servants/politicians seem to think that those are

> competent approaches to a negotiation fails me.

I've never been in a commercial negotiation where my aim was to make both sides poorer and where my company has no clear idea of the deal I want to come away with. I do often however raise my biggest concerns early on and give away areas that aren't terribly important to me (or where the other side are obviously correct) to build goodwill.

I think the difference is that I tend to look for long term sustainable deals where both sides feel they're better off, whereas most of the politicians see negotiation as a zero some game where if one person's happy the other person is a victim. Look at the way that CETA or the EU-Japan deal were conducted, both sides took their time, had a clear objectives and now both (on the whole) feel they're better off. That our politicians decided to box themselves into a corner and threaten our partners rather than try to build trust is entirely down to them.

[Alan Medic]

A Brexit plus. Medicines to get priority over food. I'm guessing a plus will be it will assist the obesity crisis...

https://www.standard.co.uk/news/uk/medicine-will-be-prioritised-over-food-if-no-deal-disrupts-supply-chains-says-matt-hancock-a4051166.html

I like the last paragraph where we get another mention of 'new technology', which does seem to be the answer to just about every imaginable problem.

[Parkdrive]

This shit storm has come about as a result of "call me Dave" Cameron's vanity and arrogance. Running to the hills with his tail between his legs when his gamble went spectacularly wrong. He was closely followed by brexit advocates Gove, Farage, and Johnson. Not only did they not have a Plan B in the event that their collective wishes came true, they didn't have a Plan A. Now we have May clinging to power with a billion pound bribe to paramilitary supporting, backwards thinking DUP, and what really sickens me about this is she is now threatening to put troops on the streets in the event that people dare to show their displeasure at the mess she and her party have created. What have we become.

[JohnL]

No food it is then.

[JohnL]

robbin Wrote:

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> I keep asking myself when it became ok in a

> negotiation, (i) to tell the other side you are

> really scared of certain possible outcomes in

> advance of a deal or (ii) to hand over concessions

> with nothing in return. Does anyone in the real

> world ever conduct commercial negotiations like

> that? Not in my experience they don't. Quite why

> all these commercially inexperienced civil

> servants/politicians seem to think that those are

> competent approaches to a negotiation fails me.

They are a tank we're a mini that thinks we're a tank.

to clarify my comment - we are one country bargaining with a conglomerate of countries acting in concert and our plan seemed to be to split them and they rumbled it.

[JohnL]

The Mogg/Morgan compromise seems to have got what it deserved.

https://www.theguardian.com/politics/2019/jan/29/brexit-tories-unite-to-back-compromise-giving-theresa-may-extra-time-transition-period

Not sure if this is a threat ( actually trace it back and you see the leave threats as usual) :)

[TE44]

900 jobs lost as EMA European Medical Agency closes, relocates to Amsterdam.

https://www.google.com/amp/s/amp.theguardian.com/politics/2019/jan/26/european-medicines-agency-closes-london-office-with-loss-of-900-jobs-brexit

While our government are busy trying to appear like the have control action is being taken by the EU.

[keano77]

TE44 Wrote:

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> 900 jobs lost as EMA European Medical Agency

> closes, relocates to Amsterdam.

>

> https://www.google.com/amp/s/amp.theguardian.com/p

> olitics/2019/jan/26/european-medicines-agency-clos

> es-london-office-with-loss-of-900-jobs-brexit

>

> While our government are busy trying to appear

> like the have control action is being taken by the

> EU.

Amusingly, the EMA is trying to renege on its financial obligations

?The European Medicines Agency is preparing for a court battle with Canary Wharf, its landlord, this week as it fights to get out of a ?500 million office lease.

The medicines regulator, which is being moved to Amsterdam after Brexit, argues that because Britain?s decision to leave the European Union was an unforeseen event, it should be able to exit the 25-year agreement it signed with Canary Wharf Group for ten floors of office space starting in 2014...?

https://www.thetimes.co.uk/article/cma-lease-battle-puts-canary-wharf-on-brexit-alert-fbswwj5xp

[TE44]

That's really interesting Keano, can't read the whole article, i'll have a look elsewhere. In 2017 it was decided the EMA could not continue in Canary Wharf and so the biddin began from european countries. It seems a reflection on how things can't be worked out when issues overlap.

In the meantime the EU has taken action whilst our government do not seem to be able to agree on a level of communication.

[keano77]

An interesting piece here on the legal meaning of ?frustration? in leases

?...The High Court is being asked to decide whether Brexit triggers the rarely used legal doctrine of ?frustration? in the case of the European Medicines Agency (EMA) and its ?13m-a-year lease of premises at Canary Wharf, which runs until 2039, with no break clause...?

https://www.egi.co.uk/news/canary-wharf-v-ema-brexit-lease-battle-begins/

[TE44]

Isn't it crazy that this case will rest on this law of proving frustration. I remember reading about the chance of the EMA continueing in UK, These decisions are obviously reached without looking at the legal standing of implications that will arise.

[JohnL]

?For operational and accounting reasons, we have concluded that the best course of action is to re-flag all ships to be under the Cyprus flag,? says P&O.

[robbin]

?...The High Court is being asked to decide whether Brexit triggers the rarely used legal doctrine of ?frustration? in the case of the European Medicines Agency (EMA) and its ?13m-a-year lease of premises at Canary Wharf, which runs until 2039, with no break clause...?

Ha ha - good luck with that, EMA!

No break clause - how careless!

[TE44]

Isn't it crazy that this case will rest on this law of proving frustration. I remember reading the EMA moving from the UK would be included in brexit deal, and whatever payment to leave would include cost of EMA moving

[robbin]

JohnL Wrote:

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> robbin Wrote:

> --------------------------------------------------

> -----

> > I keep asking myself when it became ok in a

> > negotiation, (i) to tell the other side you are

> > really scared of certain possible outcomes in

> > advance of a deal or (ii) to hand over

> concessions

> > with nothing in return. Does anyone in the real

> > world ever conduct commercial negotiations like

> > that? Not in my experience they don't. Quite

> why

> > all these commercially inexperienced civil

> > servants/politicians seem to think that those

> are

> > competent approaches to a negotiation fails me.

>

> They are a tank we're a mini that thinks we're a

> tank.

>

> to clarify my comment - we are one country

> bargaining with a conglomerate of countries acting

> in concert and our plan seemed to be to split them

> and they rumbled it.

I don't think there was a plan at all (at least not a properly thought out commercially sound one).

[diable rouge]

This Brady amendment, should it get accepted by the Speaker, is typical of British exceptionalism shown throughout the ref/Brexit process. Can you imagine the meltdown there'd be from Brexiters and the right wing press if the EU had suddenly unilaterally decided that Freedom of Movement had to stay in the WA...

[diable rouge]

JohnL Wrote:

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> The Mogg/Morgan compromise seems to have got what

> it deserved.

This is another example of what the Tory party is only good at...putting party before country

[TE44]

The last case where a doctine of frustration was applied was England 1903. Included in link below.

https://www.rlb-law.com/briefings/property-litigation/brexit-european-medicines-agencys-frustration/

[robbin]

Sorry, but that's just not right.

Frustration is a contractual law concept which is argued quite often but applied sparingly, because of the limitations on its scope. It is certainly not correct to say it has not been applied in a case since 1903! Edited: If you meant to refer only to its applicability to leases, as the article correctly says, the HL in the Panalpina case decided (in 1981) that frustration could apply to leases (albeit rarely) rather than just to covenants.

EMA are obviously prepared to take a punt though - or maybe the person (if any) who suggested they sign a long and expensive lease with no break clause is insisting they do!

[JohnL]

Theresa May wants to re-negotiate the WA. Good luck with that.

The EMA - Sell this piece of bad memory https://www.politico.eu/article/london-brexit-europe-house-dont-bet-on-britain-getting-the-house-in-the-divorce/ and move the EU UK reach out team to the old EMA offices :) Simples.

I don't know why the EU still want Smith Square.

[TE44]

Robbin can you give any examples where it has been used more recently,thanks.

[TE44]

Sorry robbin, I should have said applied to leases. Thanks I can see how it is applied in different contracts.

[robbin]

I've seen it argued in relation to leases (but never successfully).

[Siduhe]

National Carriers Ltd v Panalpina (Northern) Ltd (1980) was a House of Lords decision which confirmed that in principle the doctrine of frustration could apply to leases, but on the facts of that case, the argument for frustration was not upheld. Like robbin I'm not aware that it has been upheld in the context of leases. I have seen it upheld (but rarely) in other sorts of commercial cases, particularly around goods and supply chains.