MANAGING RISK: A DISPUTES PERSPECTIVE (2017)

The post below was first published on our FSR blog

Herbert Smith Freehills recently held its annual disputes client conference exploring some key legal and compliance risks facing major corporates. Following opening remarks by Mark Shillito, head of dispute resolution for the UK and US, there were presentations on cyber security, Brexit, insurance, class actions, decision analysis, privilege and internal investigations.

A summary of the conference from our Litigation team is below – if reading the full version of this post, you can jump down to read more detail on any of the sessions by clicking on the relevant heading.

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The European Court of Justice renders its opinion on the EU-Singapore free trade agreement: investment chapter is not within EU’s exclusive competence

The post below was first published on our Arbitration blog

On 16 May, 2017 the European Court of Justice (the Court) rendered its Opinion on the competence of the European Union to conclude the Free Trade Agreement (FTA) with Singapore. The Opinion recognises exclusive EU competence over most of the agreement and largely settles a long-standing dispute between the Commission and the Member States on the division of competences under the Lisbon Treaty.

Importantly, in the context of investor-state dispute resolution, the Court’s Opinion is likely to render any agreement including protection for non-direct foreign investments or investor-state dispute settlement (ISDS) provisions a so-called “mixed agreement” which requires each of the Member States as well as the EU itself to become party, unless certain aspects commonly found in such agreements are removed or the Member States otherwise agree (discussed further below).

The Opinion will have a major impact on the negotiation of future EU trade agreements, whether pending or anticipated (including the potential FTA between the UK and the EU following Brexit).

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Digital Economy Act 2017: The pick ‘n’ mix assortment of provisions receives Royal Assent

The post below was first published on our Fintech blog

The Digital Economy Act (the “Act“) finally received Royal Assent on 27 April 2017 and the final text has recently been published. First introduced in the House of Commons in July 2016, it has been the subject of much scrutiny and debate by both Houses of Parliament. With the General Election looming, the legislation was passed in a final sweep as part of the so-called “wash up” period before the dissolution of Parliament.

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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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THE UK GOVERNMENT ANNOUNCES CONSULTATION ON SANCTIONS POST-BREXIT

The post below was first published on our PIL blog

 

The two year process of the UK’s exit from the EU formally began on 29 March 2017 with notice being given under Article 50 of the Treaty on the European Union of the UK’s intention to leave the EU. One of the many legal issues to be determined will be the way in which the UK approaches its international sanctions framework post-Brexit, since the vast majority of the sanctions currently in force in the UK have directly applicable EU Regulations as their basis.

The Government has recently launched a public consultation into the question of the legal powers needed to impose sanctions after Brexit, while a House of Lords enquiry into UK sanctions policy is also underway. What do these two processes tell us about the UK’s future sanctions regime?

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Election ‘purdah’ is no excuse for non-publication of revised air quality plan

The post below was first published on our UK Real Estate Development blog

Author: Julie Vaughan, Senior Associate, Environment, London

Yesterday, a spokesman for the Prime Minister announced that the Government won’t be pursuing an appeal to the High Court’s decision of 27 April 2017, in which the Government failed in its attempt to delay publication for consultation of its revised air quality plan until after the 8 June ‘snap’ general election. Yesterday’s announcement confirmed that the Government will meet the new 9 May deadline. The saga is an interesting example of what may post-Brexit become the only available route to hold the Government legally to account for compliance with national level obligations, once the threat of legal proceedings before the European Court of Justice is removed.

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