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The Prime Minister’s Kobayashi Maru test

As Star Trek fans know, the Kobayashi Maru is a test for star fleet officers that is unwinnable. Unless you “cheat” by reprogramming the test, as Captain James T Kirk did.

The Kobayashi Maru is a freighter that has sent a distress signal from the neutral zone. Responding to the signal by entering the neutral zone is likely to result in the USS Enterprise being destroyed and starting a war with the Klingon Empire. Ignoring the distress signal is likely to result in the destruction of the freighter and its crew.

It feels like the UK is going through a collective Kobayashi Maru, where every outcome of the Brexit test (sadly not fictional) involves a disaster. A good economic outcome (no Brexit) would involve betraying the trust of the electorate who voted for Brexit. The question they were asked may have been foolish, and they may not have understood the economic implications for them and others, but they were asked and they answered.

Some would say it is immoral for the political class to ignore the outcome of the referendum or to try to ask the question again, so soon, in the hope of a different answer. Whether or not there will be rioting on the streets, as one Brexiter suggested to IP Draughts, it seems likely that there will be widespread disillusion with the political class if the result of the referendum is not implemented. The effect on the democracy of the UK of cancelling Brexit would be profound and last for a generation. For want of a better term, let us call this societal impoverishment.

But implementing Brexit is also likely to be disastrous. The disaster will be economic rather than societal. IP Draughts’ rough-and-ready guess is that on average we will be 15% poorer for a generation, with the effects felt most by the people in deprived areas who voted for Brexit. Let us call this economic impoverishment.

For the last 18 months, the UK’s Prime Minister, Theresa May, has applied her leadership skills to the national Kobayashi Maru. Those skills are mostly fortitude, and a sense of honour. She lacks the creativity, people skills or unorthodox thinking that helped Captain Kirk win the test.

So she plods on with her solution, which is to try to mitigate the economic effects of Brexit. IP Draughts ventures an analogy that this is like offering the Klingon empire the USS Enterprise and all of its personnel in return for the safe return of the Kobayashi Maru and its people. This may not work, as the Klingons may welsh on the deal. The outcome is likely to be disastrous for the crew of the Enterprise, and it will result in a major Star Fleet asset being lost to the enemy, but at least it is honourable. Officer cadet May demonstrates her leadership skills, such as they are, and is appointed to a junior post in the ethics administration department at Star Fleet HQ.

Some politicians criticise the Prime Minister for not striking a better deal with the Klingon empire European Commission. But the reality is that the EU doesn’t want to strike a better deal for the UK, and sees no benefit in doing so. In the real world, there is no Captain Kirk in the UK government, and no creative solution that “wins” the test.

You are now on the bridge of the USS Enterprise. Captain May has initiated communications with the Klingon Empire, and there is no time to implement an alternative strategy. Do you go along with her solution, for want of a better one? Do you mutiny, forcing her to relinquish command, and abandon the poor sods in the freighter? Or do you go full speed ahead into the neutral zone and hope to get lucky in a free-for-all with the Klingon ships?

Breaking news: a message from the Romulan ambassador has reached the ship. He offers a “quick, massive, bilateral treaty” that will “really take you way, way into an exciting future”. A long term alliance with the Romulans could provide security and prosperity for generations to come. But he doesn’t think this treaty would be possible if the deal that Captain May has brokered with the Klingons goes ahead. Does this affect your decision?



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10 words and phrases you should use in IP contracts

Most of the most popular postings of this blog have now been re-posted, but for some reason this one has escaped this fate, until now. Think of it as a Christmas repeat of a long-lost episode of The Two Ronnies. And it’s goodnight from him…

IP Draughts

One of the most popular articles on this blog is Ten Words and Phrases You Should Never Use in IP Contracts.  To celebrate reaching 50,000 viewings on this blog, here is a companion piece to that article, in which we identify 10 words and phrases that should be used in IP contracts, and which make Mr Pettifog happy[marginally less irritable].

  1. Hereby. IP Draughts tries to avoid words such as hereinafter and whereof in contracts.  However, he makes an exception for hereby, specifically in the context of hereby grants and hereby assigns.  It may be important to be clear on whether the agreement is granting a licence or assigning IP now, rather than merely promising to do so in the future.  For example, using the words hereby assigns rather than shall assign or agrees to assign places beyond doubt that the assignment is occurring now, under…

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Right of first refusal: the wrong solution

This old blog post is trending, and the subject – rights of first refusal – is perennial, so it it is worth a reblog.

IP Draughts

We have often cautioned clients against agreeing to grant rights of first refusal, as distinct from options.  Our concerns have been brought into vivid relief by a recent decision of the English High Court, in the case of AstraZeneca UK Limited v Albemarle International Corporation and Albemarle Corporation [2011] EWHC 1574 (Comm).

The case was decided last week in the Commercial Court, by Flaux J.  Albemarle and AstraZeneca (AZ) were parties to a supply agreement under which Albemarle agreed to supply to AZ its requirements for a chemical (2,6 Di-isopropyl-phenol, or DIP), which AZ used in the manufacture of propofol, the active ingredient of an anaesthetic which AZ marketed under the brand name, Diprivan.  Readers may recall that propofol is one of the drugs that Michael Jackson’s doctor is reported to have administered to him in the hours before his tragic death.

Clause H of the supply agreement contemplated…

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Using US contract templates outside the US: it can be a bad mistake

A few days ago, this golden oldie was “pingbacked” (pinged-back?) by a US website, which has prompted IP Draughts to reblog it. 2012 – seems like yesterday.

IP Draughts

US business practices dominate international contract negotiations.  This sometimes results in US contract templates being used for contracts that are not made under US laws.  While this may be okay for some of the more ‘commercial’ clauses in a contract, it can be a bad mistake to use US wording in liability clauses, when the contract is made under another country’s laws.

A case decided last week in the English Commercial Court illustrates the problems that can arise.

In Air Transworld Limited v Bombardier Inc [2012] EWHC 243 (Comm), an Angolan resident, Mr Antonio Mosquito, purchased a Challenger 605 private jet aircraft from a well-known Canadian manufacturer, Bombardier.  In his claim, he stated that the jet was for his personal use.  The contract was initially in the name of an Angolan company controlled by him, but was later assigned to a Gilbraltar company.  The contract was made under English law.

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