Recently, both Australia and New Zealand have reached ‘agreement in principle’ on proposed free trade agreements (FTAs) with the UK.  Details of the Australia-UK agreement in principle can be found on the Australian Department of Foreign Affairs and Trade (DFAT) website, while the NZ-UK agreement in principle is available from the NZ Foreign Affairs and Trade website.  Each document states that Australia/NZ will make all reasonable efforts to join the UK as members of the Hague Agreement, which provides an international registration system for industrial designs.  An article which appeared on the Lexology site last month stated that these developments imply that ‘Australia has (finally!) agreed to join the Hague Agreement on Industrial Designs’.

This is not true.  I do not see Australia joining the Hague Agreement in the foreseeable future, Australia-UK FTA notwithstanding.  I am less familiar with the political position in New Zealand, but suspect that the situation is not much different in the Land of the Long White Cloud.

Here is a fun fact…  Article 17.1(5) of the Australia-US Free Trade Agreement (AUSFTA), which entered into force on 1 January 2005, states that:

Each Party shall make its best efforts to comply with the provisions of the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs (1999), and the Patent Law Treaty (2000), subject to the enactment of laws necessary to apply those provisions in its territory.

Yet here we are, nearly 17 years later, and Australia is still not a member of the Hague Agreement.  It would seem that the phrase ‘best efforts’ in a trade agreement basically amounts to nothing more than a promise to think about it over an unspecified – and potentially indefinite – time frame.  I suspect, therefore, that an undertaking to make ‘reasonable efforts’ in an agreement in principle is code for ‘they want us to do it; we have no plans to commit to doing it; but we do not want to hold up negotiations by actually saying no.’

And there are very good reasons – namely three separate processes of review and consultation since 2012 – for believing that Australia has no intention of joining the Hague Agreement any time soon.