Under the European Union (Withdrawal) Act 2018—which aims, amongst other things, to incorporate into UK law all applicable EU legislation and to give powers to Ministers to make such amendments to retained law as are necessary to deal with any deficiencies arising from withdrawal—HM Treasury has begun to publish drafts of statutory instruments (“SIs”) which will “onshore” EU legislation related to the financial markets. The paper “Onshoring” Statutory Instruments Comment Series: Bank Recovery and Resolution, to which Dorothy Livingston from our office in London contributed, considers legal uncertainties arising from the changes proposed by the draft Bank Recovery and Resolution and Miscellaneous Provisions (Amendment) (EU Exit) Regulations 2018 (the “draft BRR SI”) which amends the Banking Act 2009 as well as other pieces of UK legislation to create an amended legislative framework for bank recovery and resolution after Brexit. Continue reading
The post below was first published on our Litigation blog
The government has published a draft statutory instrument, the Service of Documents and Taking of Evidence in Civil and Commercial Matters (Revocation and Saving Provisions) (EU Exit) Regulations 2018, which will mean that the EU Service Regulation (1393/2007) and Taking of Evidence Regulation (1206/2001) no longer apply to the UK when it leaves the EU.
The measure is needed to prevent these regulations, which cannot operate effectively without reciprocity between the UK and the EU27, becoming part of UK law under the European Union (Withdrawal) Act 2018. That Act provides that direct EU legislation (including EU Regulations) which is operative immediately before exit day forms part of domestic law on and after exit day. Without this statutory instrument, therefore, the Service Regulation and Taking of Evidence Regulation would be incorporated into UK law from that point. Continue reading
The post below was first published on our Insurance blog
Press reports over the past couple of days suggest that a deal struck by the UK government would “give UK financial services companies continued access to European markets after Brexit” and that “UK financial companies will be able to operate as they now do in Europe“.
There has not been any confirmation that a deal on services has in fact been reached. Rather, there have been denials. Any deal on services is also dependent on all other aspects of a withdrawal agreement and the new UK-EU relationship being agreed.
The press reports suggest that the EU may have agreed to accept that the UK regulatory regime is “equivalent” to EU standards (which will undoubtedly be true at the time of exit), and that the UK will be given greater certainty than other third countries that this acceptance will not be arbitrarily withdrawn. Michel Barnier has since suggested (in a tweet on 1 November) that this greater certainty for the UK as to withdrawal of equivalence may not be forthcoming.
Whether or not a deal has in fact been reached on services, it is important to recognise that securing “equivalence” does not mean that UK insurers and intermediaries can continue to carry on cross-border business as if they held passporting rights.
On 30 October 2018 the Government published a draft SI amending current UK competition legislation where necessary in order to make the legislation suitable in a no-deal Brexit scenario. The Competition (Amendment etc.) (EU Exit) Regulations 2019 (The Regulations) provide for changes to the following legislation:
- The Competition Act 1998 and secondary legislation issued under it
- The Enterprise Act 2002 and secondary legislation issued under it
- EU Block Exemption Regulations
- Other legislation containing competition provisions
The Regulations also repeal a number of EU Treaty rights, EU competition Regulations and EU Commission decisions which are specific to the EU competition regime and will no longer be relevant once the UK leaves the EU without a Brexit deal. Continue reading
The Government has published further final and draft statutory instruments to make the changes to legislation required in the event of a hard Brexit, i.e. if the UK leaves on 29 March 2019 without a deal. Continue reading
On 25 October 2018, Paul Butcher and Tom Henderson were joined by Ameet Gill, Partner at Hanbury Strategy, and Allie Renison, Head of Europe and Trade Policy, Institute of Directors to deliver a webinar ‘5 months to Brexit – what can businesses do to prepare?’ The webinar considered the current state of the negotiations following the October EU Council summit, the possible options ahead and how businesses should be preparing for Brexit. If you would like to access the recording, please contact Jane Webber. Continue reading
New Podcasts available: ‘The Impact on Existing and Future Contracts’ and ‘Will Brexit allow parties to bring their contracts to an end?’
In the latest update to the Brexit series on our Herbert Smith Freehills Podcast channel, Paul Butcher, Julie Farley, Maura McIntosh and Tom Henderson discuss what businesses need to know about the impact of Brexit on their English law governed existing and future contracts. We have released two new podcasts: Continue reading
New podcast – Brexit: dispute resolution between the EU and the UK, under the withdrawal agreement and in the event that there is “no deal”
The post below was first published on our PIL blog
At a critical time in the Brexit negotiations, in the latest podcast on the Herbert Smith Freehills Podcast channel, Andrew Cannon and Hannah Ambrose discuss dispute resolution between the UK and the EU. They look at the way in which the withdrawal agreement may be enforced, including the possible role of the CJEU, as well as considering how disputes may be resolved in the event of “no deal”. Continue reading