Brexit “no deal” note on jurisdiction and enforcement of judgments

The post below was first published on our Litigation blog

As part of its second batch of “no deal” technical notices, the government has published on 14 September 2018 a guidance note entitled: Handling civil legal cases that involve EU countries if there’s no Brexit deal.

The note contains little that was not already obvious. If no deal is agreed, there would be no agreed EU framework for ongoing civil judicial cooperation between the UK and EU countries. The UK would retain the Rome I and Rome II rules on applicable law, which generally do not require reciprocity to operate, but the rules governing jurisdiction and enforcement of judgments between EU member states (under the Recast Brussels Regulation 1215/2012) would no longer apply to the UK. Nor would the Lugano Convention, which currently governs jurisdiction and enforcement between the UK and Iceland, Norway and Switzerland – though, as the note says, this would not prevent the UK applying to re-join the Lugano Convention in its own right at a later date (and the government has previously indicated that it would seek to do just that).

For rules in these areas, the UK would revert to the existing domestic common law and statutory rules, which currently apply in cross border cases concerning the rest of the world. The guidance adds, not very helpfully: Continue reading

Leave a Comment

Filed under "No Deal" UK papers, Disputes

SECOND BATCH OF UK GOVERNMENT’S BREXIT ‘NO DEAL’ TECHNICAL NOTICES RELEASED

Today, the UK Government released the second of three batches of technical notices about the impact of a “no deal” scenario at the end of March 2019. These are available here. This second batch is of 28 and includes notices on civil judicial cooperation, broadcasting rights, data protection, telecoms and oil and gas.

As explained in our blog post on the first batch of technical notices (see here), the UK’s notes contain information on what the UK Government plans to do, unilaterally, to assist affected businesses and individuals through temporary waivers and derogations. For example, in this latest release:

  • in civil judicial cooperation the Government reiterates that the UK will formally apply to re-join the Hague Convention on Choice of Court Agreements 2005 in its own right, which it notes will come into force by 1 April 2019 (there being a gap in coverage of 2 days only). This will in many areas provide alternative rules covering the same areas as the existing EU regime. We will shortly release a separate blog post on this issue.
  • in data protection the Government confirms that in recognition of the unprecedented degree of alignment between the UK and EU’s data protection regimes, the UK would at the point of exit continue to allow the free flow of personal data from the UK to the EU (to be kept under review). The EU has not yet made the equivalent suggestion in relation to the free flow of personal data from the EU to the UK without restriction in a no deal.

As the clock ticks down to 29 March 2019, the UK and the EU are stepping up their preparations for the possibility of a “no-deal” outcome. From a corporate governance and risk management perspective, businesses that have not done so already should carry out a Brexit assurance process in order to identify all Brexit-related risks and, to the extent practicable, take appropriate and timely steps to respond to them. This article summarises at a high level the kinds of issues more generally that we are coming across in helping clients plan for a ‘no-deal’ Brexit. It supplements our pamphlet Delivering Brexit: Putting Plans into Practice.

Should you wish to discuss how Brexit affects you and what to do in response, please get in touch. To keep up to date with our latest Brexit analysis, subscribe to our Brexit blog.

Leave a Comment

Filed under "No Deal" UK papers, Data protection, Disputes, Energy, TMT

The View From Brussels – September 2018: the relevance of WTO arguments in the negotiations on the future relationship

This issue of ‘The View from Brussels’ focuses on the relevance of WTO arguments in the negotiations. The UK has so far not deployed any serious arguments based on the obligations and constraints faced by the EU as a member of the WTO, either through lack of familiarity with WTO rules or fear that making WTO arguments would breach the obligation of sincere cooperation or otherwise poison the negotiations and reduce goodwill. Recent developments in the negotiations however have shown that the EU has no such compunctions and does know how to exploit WTO arguments in the negotiations.

This briefing takes a closer look at the relevance of WTO arguments in the negotiations on the future relationship.

Click here to read more

Leave a Comment

Filed under Uncategorized

New Podcast – English Governing Law and Jurisdiction Clauses after Brexit

On the new Herbert Smith Freehills Podcast channel, Anna Pertoldi, Maura McIntosh and Tom Henderson discuss what businesses need to know about the impact of Brexit on their continued use of English governing law clauses and English jurisdiction clauses in their contracts after Brexit. As businesses will be entering into new contracts which remain in force after Brexit, looking at the effectiveness of these clauses in the future will be an important part of any new contract negotiation.

Our podcast is available on iTunes and SoundCloud and can be accessed on all devices. You can subscribe and be notified of all future episodes.

Leave a Comment

Filed under Uncategorized

Brexit “No Deal” Technical Notes – lots for the life sciences sector to think about

The UK Government issued the first batch of its Brexit “No Deal” Technical Notes on 23 August 2018. These are designed to provide guidance to businesses and other interested parties on how to deal with the problems that a “no deal” scenario will throw up i.e. if the UK exits the EU at the end of March 2019 with no transitional arrangements in place.

There were 25 notes released in this initial batch (see Herbert Smith Freehills’ general commentary here). Over 50 further technical notes are expected to be published before the end of September.

Of the first notes issues, those that will be of particular interest to life sciences businesses include:

More detail on each of these is provided below. Continue reading

Leave a Comment

Filed under "No Deal" UK papers, Intellectual property, Pharma

First batch of UK Government’s Brexit ‘no deal’ technical notes released

Today the UK Government released the first of an anticipated three batches of technical notes about the impact of a “no deal” scenario at the end of March 2019. These are available here. This first batch is of 25 and includes Banking, insurance and other financial services if there’s no Brexit deal, Civil nuclear regulation if there’s a no deal, Trading with the EU if there’s no Brexit deal, State aid if there’s no Brexit deal and Workplace rights if there’s no Brexit deal. Over 50 further technical notes are expected before the end of September.

Continue reading

Leave a Comment

Filed under "No Deal" UK papers, Banking & asset management, Employment, Energy, Financial services, Insurance, State aid, Trade, UK-EU negotiations

Brexit Legal Guide Update: Withdrawal Agreement Q&A

We have updated the Withdrawal Agreement Q&A section of the Brexit Legal Guide in order to reflect the other White Paper released in July by the UK Government on Legislating for the Withdrawal Agreement between the UK and the EU. This second White Paper provides further detail on how the Government intends to implement the Withdrawal Agreement (once agreed) into domestic law. Continue reading

Leave a Comment

Filed under UK-EU negotiations

Brexit Legal Guide update: The UK White Paper 2018: Impact for Businesses

On 12 July 2018 the UK Government finally published its White Paper on the future relationship between the UK and the EU including a proposal for the establishment of an economic partnership between the UK and the EU. At the core of this proposal is the establishment of a free trade area for goods which is intended to avoid friction at the border, preserve economic prosperity and allow commitments with respect to the border between Northern Ireland and the rest of the island of Ireland to be respected. It is accompanied by proposals for far-reaching cooperation in numerous areas (many of which will facilitate trade in services) and a new institutional framework. Continue reading

Leave a Comment

Filed under Aviation, Competition, Data protection, Disputes, Employment, Energy, Financial services, Intellectual property, Tax, TMT, Trade, UK-EU negotiations

SUPREME COURT HEARS CHALLENGE TO LEGALITY OF SCOTTISH BREXIT CONTINUITY LEGISLATION

Following a two-day hearing last week, a seven-judge panel of the Supreme Court is considering whether the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (“the Scottish Bill”) is within the scope of the Scottish Parliament’s legislative competence. The legislation seeks to ensure that Scots law continues to function without interruptions or gaps following Brexit. However, the Scottish Bill has been challenged by the UK Government over its treatment of devolved powers, leaving the Supreme Court to rule on its legality. Continue reading

Leave a Comment

Filed under Uncategorized

THE BREXIT NEGOTIATIONS – THE VIEW FROM BRUSSELS ON DEVELOPMENTS IN JULY 2018

The Brexit debate often looks different when viewed from Brussels rather than from London. That Brussels perspective however is important for businesses to keep in mind and therefore we publish a monthly view from our Brussels office on recent developments and the state of the negotiations.

On 12 July 2018 the UK government finally published its White Paper on the future relationship between the United Kingdom and the European Union including a proposal for the establishment of an economic partnership between the UK and the EU. At the core of this proposal is the establishment of a free trade area for goods which is intended to avoid friction at the border, preserve economic prosperity and allow commitments with respect to the border between Northern Ireland and the rest of the island of Ireland to be respected. It is accompanied by proposals for far-reaching cooperation in numerous areas (many of which will facilitate trade in services) and a new institutional framework.

Continue reading

Leave a Comment

Filed under Financial services, Trade, UK-EU negotiations