EU clarifies negotiating position on choice of law, jurisdiction and enforcement of judgments post-Brexit

Yesterday (29 June) the European Commission published its Position Paper on Judicial Cooperation in Civil and Commercial Matters which outlines its position on the extent to which current EU rules on choice of law, jurisdiction and enforcement of judgments should continue to apply as between the UK and the EU27 post-Brexit. In broad summary, the key points are that:

  • Choices of law and jurisdiction in contracts entered into before the withdrawal date should continue to be given effect in accordance with current rules.
  • Current provisions on jurisdiction (ie those which apply in the absence, or regardless, of contractual choice) should continue to apply to all proceedings instituted before the withdrawal date.
  • Current provisions on the law applicable to contractual and non-contractual obligations (ie those which apply in the absence, or regardless, of contractual choice) should continue to apply to contracts concluded before the withdrawal date, and (regarding non-contractual liability) to events which occurred before the withdrawal date.
  • Current provisions on recognition and enforcement of judgments should continue to govern all judicial decisions given before the withdrawal date.

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Brexit and EU citizens’ rights – UK publishes its proposals

The post below was first published on our Employment blog

The UK Government has published its proposals for safeguarding the position of EU citizens living in the UK post Brexit (link).  Settling the future of citizens exercising their right of free movement and providing legal certainty for EU citizens in the UK and UK citizens in the EU is recognised as a key priority for the withdrawal negotiations both by the UK and the EU. Despite these principles being agreed, negotiations on the detailed arrangements can be expected to be complex and the EU negotiator, Michel Barnier, described the UK’s proposals as insufficient, claiming that “more ambition, clarity and guarantees will be needed”.

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Great Repeal Bill White Paper: Submission to the UK Government by Herbert Smith Freehills LLP

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

Today we made a submission to the UK Government in response to the White Paper which is available here.

The purpose of this submission is to offer the UK Government some thoughts on issues discussed in the White Paper and on some matters not raised in the White Paper which we believe it will be necessary to address by legislation.  We hope that this submission will be helpful to Government in formulating the Bill and other legislation being passed in order to prepare the UK for leaving the EU.

Our briefing note on the White Paper, published on the 5th April 2017, is available here.

UK FCA ASSET MANAGEMENT MARKET STUDY – FINAL REPORT

The post below was first published on our FSR blog

On 28 June 2017, the FCA published the highly anticipated final findings of its Asset Management Market Study (“Final Report”), which can be accessed here. This follows the release of its interim report in November 2016 and the subsequent intensive consultation process with industry, in which some 153 submissions were filed.

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‘Brexatom’: European Commission publishes position paper on nuclear materials and safeguard equipment (Euratom)

On 23 June the European Commission published a position paper on nuclear materials and safeguard equipment (Euratom) contains the main principles of the EU position in this regard, to be presented to the UK in the context of negotiations under Art. 50. The paper was for discussion at the Council Working party (Art. 50) of 27 June 2017.

The position paper is available here.

FINANCIAL MARKETS TEST CASE PILOT SCHEME TO BE EXTENDED FOR THREE YEARS AND EXPANDED

The post below was first published on our Litigation 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.

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Queen’s Speech Brexit Programme

As had been widely anticipated, today's Queen's Speech was very Brexit focused and will cover a two-year period rather than the usual one year legislative programme, in order to provide sufficient time for Parliament to adopt the legislation by the time the UK leaves the EU on 30 March 2019.  It remains to be seen whether the programme will receive the necessary support in Parliament.  The Labour and Liberal Democrat parties argue that the Conservative party does not have a mandate to govern and have talked of putting forward alternative versions of the Queen's Speech. 

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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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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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