Germany will violate international agreements with Unitary Patent, says FFII
I am not an expert on international law but I am 99% sure that the legal arguments in the text are partially wrong. Yes, some aspects of the UPC are not great but it should rather be opposed on public policy grounds, i.e. negative effects software patents and increased cost of litigation (and maybe that should&#x27;ve been done during the negotiations on the treaty).<p>It&#x27;s a bit difficult to discern their argument as the text is filled with errors and, seemingly, some words were jumbled around.<p>1. Vienna Convention on the Law of Treaties (VCLT): The text of the treaty has already been agreed upon and states have signed (or even ratified) it. They are not negotiating the treaty anymore, so the UK (as former negotiating state) not agreeing to the treaty has no bearing on its entry into force or violates Art 24(1) VCLT. As the para. states: &quot;A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree.&quot; This is just about how the date is set, i.e. either it is laid down in the text or the States agree - and that has already happened. Somewhat regularly, states will de-ratify treaties or exit negotiations on treaties and the treaty can and will still go into force.<p>2.  Art 6 European Convention on Human Rights (ECHR) [1]: According to the case law on &quot;tribunal established by law&quot;, the &quot;law&quot; part must ensure its impartiality and independence and, thus, primarily governs its composition (i.e. appointment of judges, assignment to cases (where latter cannot &quot;solely depend on the discretion of the judicial authorities&quot;)) [2]. Note that, even in the quote cited in the article it is the object of the clause that &quot;the <i></i>judicial organisation<i></i> … is regulated by law emanating from Parliament&quot;, i.e. it concerns their composition (also: &quot;object&quot; = aim of article which does not necessarily speak to the specific obligations). The composition and the independence and impartiality of the Court are provided for in Articles 15 to 19 (esp. Art 17: &quot;Judicial independence and impartiality&quot; [3]). Only <i>beyond those rules</i> (as well others), can the Administrative Committee establish rules of procedure (which may not contravene the treaty [4]), after consulting with the Commission on compliance with EU law (Article 41). Regarding fees, it should at least be noted that the treaty provides for the possibility of financial aid for SMEs in Art 36(3) [5].<p>[1]: Case-law guide <a href="https:&#x2F;&#x2F;www.echr.coe.int&#x2F;Documents&#x2F;Guide_Art_6_ENG.pdf#page=45&amp;zoom=auto,-98,723" rel="nofollow">https:&#x2F;&#x2F;www.echr.coe.int&#x2F;Documents&#x2F;Guide_Art_6_ENG.pdf#page=...</a><p>[2]: Quoting generously from the guide:<p>&gt; <i>209. The phrase “established by law” covers not only the legal basis for the very existence of a “tribunal”, but also compliance by the tribunal  with  the  particular  rules  that  govern  it  (Sokurenko and  Strygun  v. Ukraine,  §24).  The  lawfulness  of  a  court  or  tribunal  must  by  definition  also encompass  its  composition  (Buscarini  v.San  Marino (dec.)). It  is  the  role  of  the  courts  to  manage their proceedings with a view to ensuring the proper administration of justice. The assignment of a case to a particular judge or court falls within their margin of appreciation in such matters. However, to  be  compatible  with  Article  6  §  1,  it  must  comply  with  the  requirements  of  independence  and impartiality (Pasquini  v.  San  Marino,  §§  103  and  107). The  judge  assigned  to  a  case  must  be independent of the executive,and the assignment cannot  be solely dependent on the discretion of the  judicial  authorities (ibid.,  §  110).</i><p>…<p>&gt; <i>212. In  principle,  a  breach  by  a  court  of  these  domestic  legal  provisions  gives  rise  to  a  violation  of Article6  §1  (DMD  Group,  A.S.,  v. Slovakia,  §61).  The  Court  may  therefore  examine  whether  the domestic  law  has  been  complied  with  in  this  respect.  However,  having  regard  to  the  general principle that it is, in the first place, for the national courts themselves to interpret the provisions of domestic law,  the Court  finds that it may  not  question their interpretation unless there  has been a flagrant violation of the legislation (ibid.; Biagioli v. San Marino(dec.), §75; Pasquini v. San Marino, §§ 104 and 109). A court which, without any explanation, oversteps the usual limits of its jurisdiction in deliberate breach of the law is not a “tribunal established by law” in the proceedings in question (Sokurenko and Strygun v. Ukraine, §§27-28).</i><p>&gt; <i>213.The object of the term “established by law” in Article6 §1 is to ensure that the organisation of the  judicial  system  does  not  depend  on  the  discretion  of  the  executive  but  is  regulated  by  law emanating from Parliament (Biagioli v.San Marino(dec.), §74; Savino and Others v.Italy, §94).</i><p>&gt; <i>214. Nor, in countries where the law is codified, can organisation of the judicial system be left to the discretion of the judicial authorities, although this does not mean that the courts do not have some latitude to interpret the relevant national legislation (ibid., and case-law references cited).</i><p>&gt; <i>215.Furthermore, delegating powers in matters  concerning the organisation of the judicial system is  permissible  provided  that  this  possibility  is  enshrined  in  the  domestic  law  of  the  State,  including the relevant provisions of the Constitution (ibid.).</i><p>[3]: <a href="https:&#x2F;&#x2F;www.unified-patent-court.org&#x2F;sites&#x2F;default&#x2F;files&#x2F;upc-agreement.pdf#page=22&amp;zoom=auto,-17,834" rel="nofollow">https:&#x2F;&#x2F;www.unified-patent-court.org&#x2F;sites&#x2F;default&#x2F;files&#x2F;upc...</a>
[4]: <a href="https:&#x2F;&#x2F;www.unified-patent-court.org&#x2F;sites&#x2F;default&#x2F;files&#x2F;upc-agreement.pdf#page=48&amp;zoom=auto,-17,820" rel="nofollow">https:&#x2F;&#x2F;www.unified-patent-court.org&#x2F;sites&#x2F;default&#x2F;files&#x2F;upc...</a>
[5]: <a href="https:&#x2F;&#x2F;www.unified-patent-court.org&#x2F;sites&#x2F;default&#x2F;files&#x2F;upc-agreement.pdf#page=43&amp;zoom=auto,-158,16" rel="nofollow">https:&#x2F;&#x2F;www.unified-patent-court.org&#x2F;sites&#x2F;default&#x2F;files&#x2F;upc...</a>