Brexit Blog launches with Brexit Q&A

As formal Brexit negotiations have now started, Herbert Smith Freehills is pleased to announce the launch of its new Brexit Notes blog, where you will find articles and updates on the latest Brexit developments.

As well as reporting on new developments going forward, Brexit Notes has been pre-populated with a selection of articles and posts. You can subscribe to the blog to receive notifications by e-mail as soon as items are posted, or you can visit the site whenever you choose. Continue reading

Financial Markets Test Case pilot scheme to be extended for three years and expanded

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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Article published – Choice of law and jurisdiction post-Brexit: business as usual so far?

Recent reports from Parliament have identified the problems and risks that could arise post-Brexit if the current rules on choice of law and jurisdiction no longer apply, and there are no acceptable replacements negotiated. But are clients turning away from English choice of law and jurisdiction clauses as a result?

Anna Pertoldi has published a post on Practical Law’s Dispute Resolution blog which outlines her impression that Brexit has not, to date, led to a general move away from English choice of law and jurisdiction clauses, and considers why that might be the case. Click here to read the post (or here for the Practical Law Dispute Resolution blog homepage).

Supreme Court rules approval of Parliament needed to trigger Article 50

In a landmark constitutional law ruling, the Supreme Court today held (by a majority of 8 to 3) that the UK Government cannot trigger Article 50 of the Treaty on the European Union without an Act of Parliament authorising it to do so: R (Miller) v Secretary of State for Exiting the EU [2017] UKSC 5.

The ruling confirms the victory of the claimants, who had been successful last November before a Divisional Court of the High Court. The case was appealed directly to the Supreme Court by the Government, leapfrogging the Court of Appeal, and was heard over four days in December 2016. The constitutional importance of the issue and today’s judgment is accentuated by the fact the appeal was heard by the full bench of eleven Justices. For more information, please see our Brexit e-bulletin published today.

Government loses round one of Brexit legal challenge as High Court rules that the approval of Parliament is required to trigger Article 50

In a landmark constitutional law ruling, the High Court yesterday ruled that the UK Government cannot trigger Article 50 without the approval of Parliament: R (Miller) v Secretary of State for Exiting the EU [2016] EWHC 2768 (Admin).

The ruling is a victory for the claimants who brought the case against the Government’s position that it would trigger Article 50 through the use of the Royal Prerogative. A leapfrog appeal is expected to be heard by the Supreme Court on 7 and 8 December 2016, before a full court in view of the constitutional importance of the issue. For more information on the decision, see our Brexit e-bulletin published yesterday.

For a short practical guide on how Brexit may affect your commercial contracts, see English law contracts post-Brexit: What changes should commercial parties expect? Or for more of the firm’s latest thinking in relation to Brexit, see our Brexit hub page.

Upcoming webinar – International Litigation Update

On Tuesday 18 October (12noon – 1.00pm UK time) we will present the first in a new series of webinars for Herbert Smith Freehills clients and contacts, focussing on the issues that arise in litigating cross border disputes. In this webinar:

  • Larry Shore, a disputes partner in our New York office, will consider ways of obtaining evidence in the US for proceedings in England. Very broad disclosure is potentially available under 28 USC s1782 and Larry will discuss the opportunities and challenges this brings.
  • Gitta Satryani, a disputes senior associate in our Singapore office, will consider the impact made by the Singapore International Commercial Court, launched in January 2015. She will also discuss changes in the rules for enforcement of Singapore judgments since the Hague Convention on Choice of Court Agreements 2005 came into effect on 1 October 2016.
  • Anna Pertoldi, a disputes partner in our London office, will look at  choice of law and jurisdiction post Brexit and the different options available to the UK government in its negotiations with the EU.

The webinar is part of our series of “Soundbite” webinars, which are designed to update clients and contacts on the latest developments without having to leave their desks. The webinars can be accessed “live”, with a facility to send in questions by e-mail, or the archived version can be accessed after the event. If you would like to register for a webinar, or to obtain a link to the archived version, please contact Jane Webber.

English law contracts post-Brexit: What changes should commercial parties expect?

The core principles of English contract law, such as interpretation of contracts and remedies for breach, will not be affected by Brexit and the key attractions of English law will remain.

Brexit may, however, have implications for particular aspects of parties’ contractual relationships, including how certain terms may be interpreted and whether any termination rights may be triggered, and on questions relating to jurisdiction and enforcement of judgments.

In this seventh of our series of contract disputes practical guides, Anna Pertoldi, Neil Blake and Alex Kay consider what might change post-Brexit, and provide some practical steps that contracting parties can take to protect their position. You can click here to download the PDF guide.

Clients and contacts of the firm can also register to access the archived version of our hour-long webinar exploring these issues by contacting Jane Webber. Or if you would prefer a shorter version focusing on key practical tips, Anna has also presented this 10 minute podcast.

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Hague Convention on Choice of Court Agreements will apply to Singapore from 1 October 2016

The Convention aims to increase the effectiveness of jurisdiction clauses and make judgments obtained under those clauses easier to enforce. Currently the Convention applies only as between Mexico and the EU member states (other than Denmark), so the addition of Singapore from 1 October is significant. The US and Ukraine have also signed the Convention but have yet to ratify it.

The Convention may become even more significant to the UK post-Brexit, as the UK can sign up to it without any requirement for agreement from the other contracting states. It is therefore widely seen as a fallback option to avoid any doubts regarding the continued effectiveness of exclusive English jurisdiction clauses and enforcement of English judgments within the EU, in the event that no other agreement or convention is put in place between the UK and the remaining EU member states once the UK leaves the EU.

In broad summary, the Convention provides that where parties have agreed on the exclusive jurisdiction of the courts of a contracting state, this must be respected by the courts of each other contracting state who must (subject to limited exceptions) suspend or dismiss the case if proceedings are brought before them. Contracting states must also recognise and enforce judgments given by another contracting state pursuant to such a jurisdiction clause (again subject to limited exceptions).

Upcoming webinar – Dispute resolution choices for finance parties: A practical look at recent developments affecting dispute resolution options

On Thursday 14 July (12.45 – 1.45pm BST), Adam Johnson, Nick Peacock and Vanessa Naish (chair) will deliver a webinar for Herbert Smith Freehills clients and contacts looking at dispute resolution choices for finance parties.

Finance parties are often inclined to revert to favoured dispute resolution choices in their transactions. This default position is largely based on their perception of what offers the greatest flexibility or the lowest risk or both. However, the legal landscape moves fast and there have been a number of recent developments that have challenged the assumptions supporting these default choices. Indeed, with careful drafting, finance parties are in a better position than ever with regard to their choice of forum for resolving disputes.

In this highly practical webinar our panel will explore a number of recent developments which have a significant impact on dispute resolution choices in finance transactions and affect how those clauses can be structured. The topics our speakers will explore include:

  • the end of the threat of an “Italian torpedo” within the EU?
  • the implications of Brexit for dispute resolution and governing law clauses
  • the potential for a summary judgment style process in arbitration
  • recent changes to the position on unilateral option clauses in transactions related to France
  • alternatives to arbitration in Asia Pacific: the Singapore International Commercial Court

Our speakers will also discuss the issue of “Brexit-proofing” contracts in the context of dispute resolution.

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Article published – Enforcing judgments in the EU post Brexit

The UK’s anticipated exit from the EU will have implications for many areas, including the enforcement of English court judgments across the EU. The ease (or otherwise) with which judgments may be enforced post-Brexit will depend on what arrangements are negotiated between the UK government and the EU.

Anna Pertoldi has published a post on Practical Law’s Dispute Resolution blog which considers the position post-Brexit and the potential options going forward to ensure the UK’s attractiveness as a jurisdiction is not diminished because of concerns over enforcement. Click here to read the post (or here for the Practical Law Dispute Resolution blog homepage).