FINANCIAL LIST JUDGES EXPECT BREXIT PROCESS TO GIVE RISE TO NEED FOR FINANCIAL MARKETS TEST CASES

The post below was first published on our Litigation Notes blog.

The Financial Markets Test Case pilot scheme, which was due to end in September this year, is to be extended for a further three years. The scheme will also be expanded so that it applies to any Financial List claims which raise issues of general importance in relation to which immediately relevant authoritative English law guidance is needed. It will no longer be necessary for claims to raise issues of general importance to the financial markets specifically.

The scheme was introduced in October 2015 (see this post) but, to date, no cases have progressed through the scheme. Nonetheless, according to the minutes of the May meeting of the Civil Procedure Rule Committee (CPRC) at which the extension was confirmed, the Financial List judges are keen to make it a permanent part of the rules. It was agreed that its continuation as a pilot scheme which would cover the Brexit period would allow time to test the scheme. 

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Filed under Banking & asset management, Disputes, Finance

Where next for Brexit – Q&A

Formal Brexit negotiations are starting today. Whereas the EU is ready and keen to go, the UK elections have thrown a spanner in the works as far as the UK is concerned. The new Government's position on Brexit is far from clear and we don't know to what extent there will be a change in approach from the original negotiating position as set out in the Prime Minister's Lancaster House speech and in the UK's White Paper on the UK's exit from and new partnership with the EU following the election results. The Conservative Party no longer has a majority in Parliament and is negotiating a support agreement with the DUP, one of the major parties in Northern Ireland. All political parties are positioning their vision of Brexit and their Brexit red lines.

As the early stages of the negotiations can focus on issues which are less politically divisive, such as the rights of citizens exercising their rights of free movement at the time of Brexit, the negotiations will be able to proceed as planned, at least for now. Without intending to speculate on any political outcome, in this Q&A briefing we simply aim to answer some commonly asked questions as a result of the recent confusion and to clarify some of the key terminology increasingly used in the context of Brexit.

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Filed under Great Repeal Bill, Trade, UK-EU negotiations

ECJ’S OPINION ON EU-SINGAPORE FREE TRADE AGREEMENT COULD SMOOTH THE WAY FOR A POST-BREXIT TRADE DEAL

The ECJ ruling has provided much needed clarity that EU officials have exclusive powers to negotiate international trade deals without ratification by national and regional parliaments. A move that could make it easier to strike a trade deal between the UK and EU following Brexit.  

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THE OBSTACLES TO CONCLUDING CETA AND LESSONS FOR THE FUTURE

The EU-Canada Comprehensive Economic and Trade Agreement ("CETA") is claimed to set the new "global standard" for future Free Trade Agreements ("FTAs") to be negotiated by the European Union ("EU", the "Union") and indeed the rest of the world. It has however become controversial in the EU and it is by no means clear that it will be finally ratified.

This blog post will examine how this situation has arisen in order to draw some lessons as to how the EU could be more successful with future FTAs.

Click here to view the post in full.

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LEGISLATING FOR THE UK’S WITHDRAWAL FROM THE EU – THE GOVERNMENT’S WHITE PAPER ON THE GREAT REPEAL BILL

On 30 March 2017 the Government published its White Paper on the Great Repeal Bill: Legislating for the United Kingdom's withdrawal from the European Union.

The principal purpose of the Great Repeal Bill will be to repeal the European Communities Act 1972 (the "ECA"), which gives effect and priority to EU law in the UK – thereby formally reasserting the sovereignty and independence of domestic law from the EU.

In order to avoid the risk of a large vacuum in UK law when EU law ceases to apply, the Bill will also preserve and convert into domestic law the whole body of EU law applying to the UK at the time it leaves the EU (to the extent it has not already been implemented domestically).  The Bill will also create powers for the Government to make secondary legislation in order to adjust EU-derived law that would otherwise no longer operate appropriately once the UK has left the EU (for example because it refers to the involvement of an EU institution or is predicated on access to an EU regime or system).  These powers will not be available for policy changes not designed to deal with such deficiencies. 

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EXITING THE EU – THE DIE IS CAST

On Wednesday 29 March 2017 the UK Prime Minister, Theresa May, gave notice under Article 50 of the Treaty on European Union (TEU) ("Article 50") of the UK’s intention to leave the EU. This means, almost certainly, that two years from now the UK will leave the European Union, some 46 years after becoming a Member State of the then "European Common Market" on 1st January 1973.

This is a decision of huge economic and political significance following the June 2016 Referendum in which voters in the UK by 52% to 48% voted to leave the EU. The impact on the future of the UK and of the rest of the EU cannot yet be known, and the notice is given early in a year of very significant political upheaval:

  • at least three of the original six Member States (Netherlands, France and Germany) have general elections;
  • the EU as a whole continues to face difficulties in dealing with the inflow of refugees and economic migrants from the Middle East and North Africa;
  • Greece and some other countries struggle with their participation in the Euro-zone;
  • there is a background of continued war in Syria and Iraq; and
  • there is a new US administration with radical policies.

To see the blog post in full, click here.

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Filed under Article 50, UK-EU negotiations

SUPREME COURT RULES THAT THE APPROVAL OF PARLIAMENT IS REQUIRED TO TRIGGER ARTICLE 50

In a landmark constitutional law ruling (R (Miller) v Secretary of State for Exiting the EU [2017] UKSC 5, the Supreme Court today held (by a majority of 8 to 3) that the UK Government cannot trigger Article 50 of the Treaty on the European Union ("Article 50") without an Act of Parliament authorising it to do so.

When the UK joined the EU in 1973 by signing the Treaty of Accession and by Parliament enacting the European Communities Act 1972 (the "ECA"), EU law became a source of UK law which takes precedence over all other domestic sources of UK law. Withdrawal from the EU will therefore make a fundamental change to the UK's constitutional arrangements, by removing the source of EU law, which can only take effect through Parliamentary legislation. Withdrawal will also remove a number of existing domestic rights of UK residents. The Supreme Court confirmed the High Court's finding that, as Parliament had legislated to confer these rights in domestic law, only Parliament could take them away: the executive branch of Government could not do so using its prerogative powers to make and break treaties.

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CAN ACQUIRED RIGHTS PROVIDE PROTECTION FOR INDIVIDUALS AND BUSINESSES POST-BREXIT?

An important area of law requiring consideration in the context of the UK's planned withdrawal from the EU is the question of whether rights granted to individuals and businesses during the UK's membership of the EU will endure following its exit. The question is relevant for both EU Member State nationals exercising their rights in the UK and UK nationals exercising their rights in EU Member States, such nationals including individuals and businesses. In legal terms, this topic centres on the question of whether such rights constitute "acquired" or "vested" rights. In the specific context of Brexit, the rights that are likely to be of key concern are free movement of workers, freedom of establishment and free movement of goods and services.

We provided an overview of the concept of acquired rights in our e-briefing on the international law implications of Brexit (available here). This briefing will look at the issue in more detail, in particular, providing an overview of the concept as it has evolved from a legal standpoint and exploring the potential legal sources of acquired rights in the context of Brexit.

Click here to read the post in full.

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Filed under Public international law

BREXIT – IMPLICATIONS FOR THE ENFORCEMENT OF JUDGMENTS

The UK’s pending exit from the European Union has led some to question whether its status as a leading global dispute resolution center could be affected, an issue particularly relevant to the international firms that call it home and the international commercial parties looking to enforce judgments or awards rendered in the UK.

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Government loses round one of legal Brexit challenge

High Court rules that the approval of parliament is required to trigger Article 50.

In a landmark constitutional law ruling (R(Miller) v Secretary of State for Exiting the EU) the High Court today held that the UK Government cannot trigger Article 50 of the Treaty on the European Union (Article 50) without the approval of Parliament. It was common ground between the parties that notice under Article 50(2), which starts the formal process for the UK leaving the EU, is not reversible. Accordingly, serving notice would inevitably lead to the loss of legal rights arising from the UK's membership of the EU which have been enshrined in domestic law. However, as Parliament had legislated to confer these rights in domestic law, only Parliament could take them away: the executive branch of Government could not rely on its prerogative powers to make and break treaties to do so.

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Filed under Article 50