EU’s revised proposals for enforcement of judgments post-Brexit

The post below was first published on our Litigation blog

On 15 March, the European Commission published a revised version of the draft withdrawal agreement it had previously published on 28 February 2018 (see our summary of the original terms relating to jurisdiction, choice of law and enforcement of judgments here). The revised version contains a significant change regarding continuation of the current arrangements for enforcement of judgments, bringing the EU’s position closer to that of the UK on this issue.

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Delivering Brexit: Putting plans into practice

The news regarding the conditional agreement between the EU and UK on the terms of a 21 month transition period is welcome. However, as both sides have made clear: nothing is agreed until everything is agreed. We will only know at the end of the Article 50 process whether a cliff edge has been avoided. That is, at the earliest, near the end of 2018.

With 12 months to go, businesses have no choice but to make plans and will face tough calls on when to put them into practice.

We have prepared this short booklet looking at the kinds of issues that businesses are facing and the kind of responses they may need to make.

EU and UK agree the legal text for the transitional period, citizens’ rights and the financial settlement, part of the withdrawal agreement

EU and UK agree the legal text for the transitional period, citizens’ rights and the financial settlement, part of the withdrawal agreement.

However, both sides have made clear that nothing is agreed until everything is agreed. Business will only know at the end of this year at the earliest if a 29 March 2019 “cliff-edge” has been avoided. With just over 12 months to go, business has little time to make their Brexit readiness plans and put them into action. 

Please, click here to read the full document.

State-to-State Dispute Settlement under the EU’s latest draft of the Withdrawal Agreement: CJEU jurisdiction remains

The post below was first published on our PIL blog

On 15 March 2018 the European Commission published a revised version of the draft Withdrawal Agreement between the EU and the UK previously published on 28 February 2018 following consultation with the Member States and the European Parliament. The revised document has been transmitted to the UK for negotiation. A comparison between the two drafts is available on our Brexit notes blog here.

In terms of State-to-State dispute settlement, little has changed since our blog post on 2 March 2018.

As was seen in the previous draft, under Part Six, Title III (“Dispute Settlement”), the Withdrawal Agreement proposes that a Joint Committee (co-chaired by representatives from each of the UK and the EU) be established to resolve disputes regarding the interpretation or application of the Withdrawal Agreement. In the event that the dispute cannot be resolved, then the Joint Committee itself, or either one of the UK or the EU, can refer the dispute to the CJEU under Article 162 (para. 1). The ruling from the CJEU is binding, and non-compliance with that ruling may result in the CJEU issuing a “lump sum or penalty payment”.

However, there is a slight change in when the rights of the EU or the UK arise to suspend rights and obligations in the event of such a dispute. Article 162 (para. 2) now states that, in the event that the dispute is not referred to the CJEU under paragraph 1 of that provision, then the EU or the UK may suspend aspects of the Withdrawal Agreement (other than those related to citizens’ rights) or any agreement between them “proportionate” to the gravity of the breach. In a further addition, paragraph 2 now states the EU or the UK, as the case may be, shall inform the other Party of its intention to suspend and allow the other Party, within 20 days, to remedy the situation. Any suspension shall take effect no earlier than 20 days after its notification to the other Party.

In view of the sensitivities over CJEU jurisdiction discussed in our earlier blog post, it will be interesting to see how the UK responds.

For further information, please contact Andrew Cannon, Partner, Vanessa Naish, Professional Support Consultant, Hannah Ambrose, Professional Support Consultant or your usual Herbert Smith Freehills contact.

Andrew Cannon
Andrew Cannon
Partner
+33 15 357 6552
Vanessa Naish
Vanessa Naish
Professional Support Consultant
+44 20 7466 2112
Hannah Ambrose
Hannah Ambrose
Professional Support Consultant
+44 20 7466 7585

OBSERVATIONS FROM MIPIM: LOGISTICS AND PROP TECH

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

Author: Paul Chases, Partner and Head of Corporate Real Estate, London

In this post, Paul Chases, a partner in the HSF London Real Estate team comments on his experience of the Shedmasters event at the MIPIM real estate conference, and on the direction of travel of parts of the real estate industry.

  1. Continued Growth
  2. Future of the Shed
  3. Impact of Brexit

1. Continued Growth

The popularity of this year’s Shedmasters event at MIPIM (sponsored by Savills, Gazeley and Prologis, amongst others) is testament to the ongoing strength of the logistics sector, which, in 2017, saw record highs for investment in the industrial and distribution sector. The general view seems to be that this trend is likely to continue for 2018 and beyond with returns for the industrial and logistics sectors predicted to outperform those for office and retail (for example) over the next five years. Already this year, HSF has acted on a number of logistics deals. With such positive forecasts, the expectation is that new investor entrants will look to enter the market and there will be further consolidation by those already involved in the sector.

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BROADCASTING: A KEY BREXIT PRIORITY

In her Brexit speech on 2 March 2018, Prime Minister Theresa May highlighted broadcasting as a key priority in the ongoing negotiations with the EU.

This follows a warning that Britain’s status as a global broadcasting hub is under threat if broadcasters based in the UK do not have continued access to the EU.

Regulation of broadcast services in this country currently derives, in part, from the EU’s Audiovisual Media Services Directive (“AVMSD”).

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The House of Commons Committee on Exiting the European Union publishes the analysis of the impact of three Brexit scenarios on the British economy

The House of Commons Committee on Exiting the European Union publishes the analysis of the Department for Exiting the EU on the impact of an EEA-type, FTA-type, and WTO Brexit scenarios on UK’s industries with a short sector narrative of the Chemicals, Financial Services, and Professional and Business Services industries. The Committee published the documents in full with the exception of an annex identified by the Department for Exiting the EU as sensitive to the ongoing EU-UK negotiations.

To read the full paper ‘EU Exit Analysis: Cross Whitehall Briefing’, please click here.