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Clifford Chance

Briefings

Briefings

Here is a selection of our latest publications on the implications of Brexit and what it might mean for the UK's ongoing relationship with the EU.

23 November 2018

The draft Political Declaration: The future for the UK and EU after Brexit

The UK and the EU have released a draft Political Declaration on the future relationship between them. This follows the provisionally agreed draft Withdrawal Agreement published on 14 November 2018.

This briefing considers the contents and implications of the long-awaited Political Declaration. What does it mean for goods and financial services, customs and regulation and the UK's desire to have an independent trade policy?

15 November 2018

UK and EU agree Brexit deal – what does it mean, and what happens next?

The UK and EU have provisionally agreed a draft Withdrawal Agreement and outline Political Declaration on their future relationship. A special European Council has been scheduled to take place on 25 November to sign the agreement.

The greatest risks are posed by the lack of Cabinet support (with key resignations already announced), disparate factions within the Conservatives and, ultimately if it gets that far, the UK House of Commons voting against the deal. The Withdrawal Agreement has generated intense opposition from across the UK political spectrum – not least the resignation of Dominic Raab, the Brexit Secretary.

This briefing considers the substance and implications of the emerging deal, the next steps, and the complex risks and multiple possible scenarios that arise between now and 29 March 2019, and beyond.

16 October 2018

Intellectual Property and a no-deal Brexit: The government's guidance on exiting the EU with no deal

On 24 September, the UK government published notices about what they plan will happen in various areas of intellectual property law if the UK leaves the EU on 29 March 2019 without a withdrawal agreement or a transitional period. The notices confirm that the European Union (Withdrawal) Act 2018 will convert existing EU regulations relating to intellectual property into UK national law and will preserve domestic legislation implementing EU Directives on intellectual property matters. We summarise the contents of the notices below.

06 September 2018

UK regulation of medicines and medical devices in the event of a 'no deal' Brexit

On 23 August 2018 the UK government published several technical notices on how to prepare for Brexit in a 'no-deal' scenario. Although rather general in nature, the documents reveal first indications of how the UK government intends to regulate the health and medical sector after Brexit. While some general implications for the industry have become clear, specific effects and detailed consequences will be subject to further preparatory work and consultation.

16 August 2018

Brexit, English Law and the English Courts: Where are we now?

Brexit brings many uncertainties that have yet to be resolved. However, the English law used in transactions is not one of them; it will remain the same after Brexit as it was before because the EU, for all its law-making, has had minimal impact on transactional law. Similarly, the procedure, judges and practitioners in the English courts will not change as a result of Brexit. The main way in which Brexit might affect the English courts is the ease of enforceability of an English judgment in the EU, or vice versa, but that will only matter if enforcement in the EU is important and no satisfactory mitigants are available.

30 July 2018

Implementing Brexit in the UK: The EU (Withdrawal Agreement) Bill

The UK Government has published a White Paper on its proposals for a European Union (Withdrawal Agreement) Bill to implement the UK's Withdrawal Agreement with the EU into UK domestic law. The White Paper details how the UK will implement the planned transition period, as well as the UK Government's proposals for dealing with the protections for citizens' rights after Brexit and the administration of the UK's proposed financial settlement with the EU.

24 July 2018

REACH and the chemicals regime in the UK after Brexit

With notoriously complex supply chains, and deep branches into all other areas of manufacturing, contingency planning for the chemicals sector is made all the more difficult (but all the more necessary) by a lack of clarity on what the UK's long-term position will be. Many companies have been considering the implications for a no-deal Brexit in which there is no agreement on a future relationship with the EU or on a transition arrangement. This briefing considers ten questions about the UK chemicals regime post-Brexit focusing on the EU REACH regime.

16 July 2018

Britain's Brexit Blueprint: The UK Government publishes its future relationship white paper

The UK Government has published its long-awaited White Paper, "The Future Relationship between the United Kingdom and the European Union". This follows the agreement reached by the UK Cabinet which precipitated the resignations of the Brexit Secretary David Davis and Foreign Secretary Boris Johnson, and led a number of Prime Minister Theresa May's own MPs to call for her resignation. The White Paper is the most detailed outline yet of the UK's aspirations for its future relationship with the EU since Article 50 was triggered in March 2017. The EU has welcomed the White Paper, but still may reject some key elements of the UK's proposals.

06 July 2018

Onshoring EU financial services legislation under the European Union (Withdrawal) Act 2018

The European Union (Withdrawal) Act 2018 provides for domestication of EU legislation and grants powers to the Government to correct deficiencies arising from Brexit. On 27 June 2018 HM Treasury and the UK financial services regulators announced how they intend to use these powers. The announcements also discuss the UK's approach to implementing a temporary permissions and recognition regime to cover the UK leaving the EU without a deal.

04 July 2018

Crunch time? The EU takes stock of Brexit at the June European Council

EU leaders met on 28-29 June 2018 at a time of growing divisions across Europe. A migration crisis reinvigorated by the election of a populist government in Italy, an incipient trade war with the US, and weakening transatlantic co-operation in NATO, all left time short to discuss Brexit. The Council was apparently, however, not obviously impressed by the current state of the Brexit negotiations. With the clock ticking, all eyes are now on the October Council as a final hurdle – or last chance saloon – before a no deal Brexit becomes increasingly inevitable.

05 April 2018

Update: The PRA's regulatory approach to insurer's preparations for Brexit

On 28 March 2018, the Bank of England (“BoE”) issued a press release on its regulatory approach to Brexit. In the press release, the BoE published a number of documents including a policy statement setting out the Prudential Regulation Authority’s (“PRA”) revised approach to the authorisation and supervision of international insurers (PS4/18), together with a related “Dear CEO” letter on firms’ preparations for Brexit. This note examines the impact of the publications on insurers’ Brexit planning.

19 February 2018

Next Steps: Notice on consequences of Brexit in (Re)Insurance Sector

The European Commission (the "Commission") published a number of notices to stakeholders in different sectors on 8 February 2018, on the consequences of Brexit for financial services. Each notice is essentially a 3 page warning with a clear message that "preparing for the withdrawal is not just a matter for EU and national authorities but also for private parties". This briefing looks at the points raised by the Commission in the notice specific to the (re)insurance sector.

16 February 2018

Brexit: implications for contract continuity and repapering

One of the key questions firms need to consider in their Brexit planning is how to deal with cross-border financial services contracts. In a scenario where the UK leaves the Single Market and no deal covering financial services is agreed, firms will lose the right to passport financial services activities between the UK and EU27. This raises uncertainties and a potential cliff-edge risk for the continuity of existing cross-border contracts, which currently underpin many firms’ businesses.

Firms will need to consider whether and how these risks to contract continuity may be mitigated, or whether to move existing contracts to a locally-licensed entity, which may itself require a complex repapering exercise. This briefing highlights some practical implications for firms when considering these issues.

27 January 2018

Brexit: The future of financial regulation and supervision

The House of Lords EU Financial Affairs sub-committee published its report "Brexit: the future of financial regulation and supervision" on 27 January 2018. The purpose of the inquiry was to examine how financial regulation and supervision could evolve following Brexit in order to promote the stability and development of the UK's domestic market while enabling it to continue to serve international business. Clifford Chance Partner, Simon Gleeson, gave evidence to the inquiry and is extensively quoted in the report. In discussing the incorporation of EU regulation into UK law Gleeson said: “If we simply copy Europe … we will be moving into our primary legislation stuff that properly belongs in regulators’ rulebooks … If we take a bunch of regulatory material that, almost by its nature, should be reasonably dynamic, and hard-bake it into statutory instruments, we are creating a monstrous procedural problem for ourselves in how we regulate the market.”

08 December 2017

Brexit: sufficient progress, but to where?

"Sufficient progress" has been declared. The UK-EU announcement on 8 December 2017 marks a significant step, and one that the UK government was under huge pressure to make.

The guarantee of no border checks between the Republic of Ireland and Northern Ireland ultimately implies a very high level of regulatory alignment between the UK and the EU. This may even include the possibility of a customs agreement that is very similar to the existing customs union.

While this agreement arguably saves the day for the UK government, it could make the final reckoning all the more difficult, as supporters of a hard Brexit realise that the UK might end up much closer to the EU than they thought.

16 November 2017

Supporting Europe's Economies and Citizens: A modern approach to financial services in an EU-UK Trade Agreement

In this new report, Supporting Europe’s Economies and Citizens: a modern approach to financial services in an EU-UK Trade Agreement, UK Finance sets out a model for cross-border market access following UK’s exit from EU.

The report was developed in collaboration with Clifford Chance and Global Counsel LLP and proposes an ambitious trade in services framework that would allow customers across Europe to continue to benefit from access to EU and UK banking and capital markets services.

31 October 2017

The EU (Withdrawal) Bill in October - amendments and delays

The European Union (Withdrawal) Bill is shaping up to be one of the most controversial pieces of UK legislation in recent memory, with over 400 amendments and new clauses (NCs) proposed by MPs so far. Our briefing of 29 September 2017 looked at the amendments to the Bill proposed by MPs up to that date. Since then, over 200 further amendments have been proposed by MPs concerned about issues ranging from parliamentary sovereignty, devolution and human rights to the environment. This briefing considers the key themes in the new batch of amendments, including which amendments may cause the biggest headaches for a Government with a slim working majority in the House of Commons.

23 October 2017

Brexit Impact Assessment Tool

Clifford Chance has launched a Brexit impact assessment tool, which assists EEA banks with deposit-taking UK branches with their contingency planning for Brexit by identifying areas where there are likely to be significant differences between the UK regulatory requirements that currently apply to them in relation to their UK branches and those that may apply post-Brexit.

Key reasons for using the impact assessment tool:

  • identify areas of ‘higher impact’ where there are likely to be significant additional UK regulatory requirements for EEA banks with UK branches post-Brexit;
  • assist firms in deciding where to focus their Brexit planning efforts and resources; and
  • help firms navigate through multiple rule sets which apply differently to EEA banks and third country banks with UK branches.

Download the brochure for further details.

20 October 2017

Post-Brexit vision for insurance: Sam Woods, Mansion House speech on geofinance

On 4 October 2017, Sam Woods the Deputy Governor for Prudential Regulation and the Chief Executive Officer of the Prudential Regulation Authority ("PRA") delivered a speech at the Mansion House City Banquet.

The speech explored the impact of geography on the shape of banks, insurers and financial regulation – a dynamic Sam Wood's referred to as "geofinance”. Interestingly, the speech referred to the PRA's post-Brexit vision for the insurance sector which is further explored in this briefing. 

29 September 2017

Amendments to the European Union (Withdrawal) Bill - key trends

The European Union (Withdrawal) Bill is one of the most controversial pieces of legislation to be put before MPs in recent memory. The objective of the Bill is to ensure that the UK's body of law continues to operate as a coherent and complete whole post-Brexit, effectively grandfathering existing EU law into UK law.

The challenge the government faces is the scale of the exercise - thousands of instruments need to be retained - and the Government has proposed extensive use of delegated legislation to adapt these instruments to the UK's new position, provoking accusations of executive overreach.

MPs from all main parties have proposed a large number of amendments on a range of issues. This briefing sets out the key trends in the amendments proposed so far.

12 September 2017

EU Commission position paper on Brexit and intellectual property

On 6 September, 2017 the EU Commission released a position paper to the EU member states (excluding UK) on what it will present as the requirements to be met by the UK for intellectual property when the UK withdraws from the EU. The paper focuses on continuity of existing protection, without limiting the UK from making changes to its domestic laws (with prospective effect) in future. It reflects issues and concerns that have been widely debated among IP practitioners, while leaving the UK considerable leeway in areas of detail.

11 September 2017

Brexit - citizens' rights, dispute resolution and the CJEU

Finding a means to resolve direct disputes between the UK and the EU after withdrawal should be easy. The difficult part is what ability companies and individuals should have to pursue their rights under the withdrawal agreement and the agreements forming the “deep and special partnership” between the UK and the EU. The UK Government appears to reject any recourse by companies and individuals to an international tribunal (including the Court of Justice of the European Union), while the EU appears to require it. If the UK Government’s view prevails, then individuals in the UK will find that the entitlement they have today to take direct action to protect their rights under EU treaties will not apply to their rights under any withdrawal agreement, unlike individuals in the EU.

20 July 2017

Brexit - ESMA signals tougher stance on UK asset manager relocation to the EU

ESMA has published three opinions setting out sector-specific principles to support supervisory convergence in the context of requests from UK financial institutions seeking to relocate to the EU27.

The opinion on Investment Management covers UCITS and AIFMD structures, and delegation to MiFID investment firms. Most of the content is not surprising and what we already know about regulators' considerations when an asset manager is establishing in their jurisdiction, but it does indicate a change of tone from ESMA in respect of Brexit relocations, particularly in relation to substance requirements on delegation. The underlying message is that ESMA is requiring EU regulators to be tough on proposed relocations and, in particular, any proposals to delegate functions back to the UK.

Non-EU asset managers with EU fund structures (e.g. U.S. managers acting as delegates to EU management companies) should also follow this development, as the ESMA opinion and the EU regulatory reaction to it are relevant not only to UK managers looking to relocate to the EU, but also to non-EU managers who are part of EU fund structures.

07 July 2017

The Repeal Bill - what to watch out for

It has been rumoured that the UK Government will shortly lay before Parliament a ‘Repeal Bill’ (the Bill formerly known as the “Great” Repeal Bill), which will provide that EU law that was applicable to the UK immediately before Brexit continues in force as UK law after Brexit.

This will mark the beginning of an unprecedented legislative exercise to domesticate, in under two years, almost the entire EU body of law, which has taken the EU sixty years to create. Lawyers will take centre stage in explaining what it all means. The Government has so far been decidedly coy as to its plans, but here are some of the key issues to watch as the Government’s legislative aims are clarified.

30 October 2017

Bridging to Brexit - insights from European SMEs, corporates and investors

In a new report, Bridging to Brexit: Insights from European SMEs, Corporates and Investors, published by AFME and commissioned from The Boston Consulting Group with support from Clifford Chance, the impact of Brexit on SMEs, large corporates and investors is assessed. The findings indicate that a hard Brexit will be a particular challenge for SMEs, but also raises issues for corporates and investors, with wider implications for growth in the real economy. 

23 June 2017

The future UK-EU relationship: re-Examining the EEA and other options

The uncertain outcome of the UK election on 8 June has reopened the question of what the UK's future relationship with the EU should be.

Whilst few doubt that the UK will actually leave the EU, many are asking whether a 'soft' Brexit is now more likely, and whether the UK may remain, in the short or longer term, a member of the European Economic Area which links Norway, Iceland and Liechtenstein to the EU's single market, but not its customs union.

This briefing re-examines the UK's options for its relationship with the EU following the UK's withdrawal, including the EEA agreement, bilateral agreements on the Swiss model, a customs union agreement, a Free Trade Agreement and a "no-deal" scenario of trading on WTO terms

08 June 2017

ESMA issues opinion on supervisory approach to Brexit-related relocations from the UK

On 31 May 2017, the European Securities and Markets Authority (ESMA) published an opinion setting out nine principles to support supervisory convergence in the context of relocations from the UK, following the UK's decision to leave the EU. The opinion is addressed primarily to national regulators – also known as national competent authorities (NCAs) – of the 27 Member States that will remain in the EU (EU27) but it will be relevant to firms considering relocating entities, activities or functions from the UK, including through use of delegation structures.

19 May 2017

What does the Singapore FTA decision mean for the EU's FTAs and Brexit?

On 16 May 2017 the Court of Justice of the European Union ruled that the EU could not conclude the proposed Free Trade Agreement with Singapore alone, but that it would also have to be ratified by the EU's member states in order for it to come into force.

This long-awaited ruling will shape the EU's trade policy for years to come, and sets a precedent for future trade negotiations between the EU and third countries, including any free trade agreement that the UK may look to conclude with the EU once it has left.

This briefing summarises the opinion of the CJEU, and asks what it means for the EU's trade policy, and whether it is good or bad news for the UK.

14 March 2017

Brexit: Legislation passed allowing the UK to give notice under article 50

The European Union (Notification of Withdrawal) Act 2017 gives the UK Government the authority the Supreme Court decided it required in order to notify the European Council under article 50 of the Treaty on European Union of the UK's intention to leave the EU. The Government can therefore deliver the UK's withdrawal notice by its self-imposed deadline of the end of March 2017. The UK will then leave the EU on the entry into force of a withdrawal agreement between the UK and the EU or, failing that, in late March 2019.

03 November 2016

Brexit: Parliamentary approval required for UK to leave the EU

The English High Court has decided in R (oao Miller) v DExEU that the Government needs prior authorisation from Parliament to give the article 50 notice that will start the process of the UK leaving the EU. The Government must therefore either appeal successfully or it must engage with Parliament. If an appeal fails, there could be delays while Parliament grapples with Brexit, and uncertainty as to what the outcome will be.

28 September 2016

The impact of Brexit on IP Rights

The United Kingdom's vote to leave the European Union has led to a period of legal uncertainty with the future relationship between the UK and EU not yet being defined. Intellectual property law is not safe from the immediate effects of Brexit and also faces an uncertain future. It is anticipated that for at least the next two years, the UK will remain a full member of the EU and will continue to apply EU intellectual property law. As no Member State has withdrawn from the EU before, the impact on IP rights cannot be precisely predicted and depends on the outcome of negotiations and agreements made between the UK and the EU.

16 September 2016

Brexit: The way forward for multinationals

As the dust settles following the UK's decision to leave the EU, Clifford Chance experts explore the impact of Brexit from a business and legal perspective. Here we look at the likely process and timetable for the EU/UK Brexit negotiations and what action multinationals outside the financial services sector should take now to influence the outcome of Brexit. We also discuss how the EU and the UK might agree to facilitate cross-border trade in goods and services short of a single market, including rights to establish businesses, equivalent access, restrictions on protectionism and transparency around regulation.

22 August 2016

The regulatory landscape of Brexit for CLOs: where to from here?

The UK's vote to leave the EU has raised questions across the financial markets and answers are only beginning to trickle through. For CLO market participants – and UK-based collateral managers in particular – the biggest legal concerns are regulatory, mainly around MiFID authorisation and risk retention. In this briefing we review the issues facing the CLO market as a result of the Brexit vote and discuss why, for the moment, the best bet is probably to wait and see.

08 August 2016

Brexit: Passporting and equivalence implications for the UK insurance sector

The implications of Brexit for EEA authorised insurers, reinsurers and intermediaries, including those currently authorised in the UK, will largely depend on the legal agreements governing the basis of the UK’s future relationship with the EU. Although these are subject to negotiations, there are some certainties in the UK's favour: a respected regulatory system, the likelihood of securing Solvency II equivalence, and an environment of conservative capital management – all of which make the UK a stable and competitive participant in global insurance markets.

01 July 2016

Brexit - What does it mean for the restructuring and insolvency market?

Following the UK's vote to leave the EU, companies will need to consider the implications for existing transactions and the potential impact of future legislative changes. Existing EU law continues to apply and there will be no immediate impact until the UK's exit terms have been negotiated, however companies can start thinking about these issues now. In the longer term, whilst there will inevitably be some uncertainty, there will also be many opportunities for businesses that are able to embrace the changes ahead.

30 June 2016

The potential impact of Brexit on cross-border aircraft financings

In the wake of the "Leave" outcome of the UK's EU referendum last week, we consider the potential impact of a "Brexit" on cross-border aircraft financings.  Given the continued uncertainty surrounding the terms and timing of Brexit, it is impossible to reach any definitive conclusions, however, this note highlights selected issues likely to be of relevance to existing and new transactions and to industry participants.

27 June 2016

Brexit and jurisdiction clauses: choice of English law following the EU referendum

The choice of law to govern a contract will be unaffected by Brexit, if and when it occurs, but jurisdiction provisions may require consideration.  But that is only the case if enforceability of a judgment throughout the EU is a significant factor in the choice of jurisdiction.  If it’s not, nothing changes.  If enforceability of a judgment throughout the EU is important, there are various responses available, including the bold one of giving the English courts exclusive jurisdiction.

24 June 2016

Brexit - Hospitality Sector Analysis

The upcoming referendum on the UK's membership in the EU is likely to have a significant impact on the hospitality sector. With many travellers reliant on the EU freedom of movement, London being a centre for hotel investment and location for the EMEA headquarters of several global hotel operators, there are likely to be consequences for the hospitality business if the Brexit occurs. This note considers some of those consequences and considers possible contingency plans.

25 April 2014

A legal assessment of the UK’s relationship with the EU: a financial services perspective

TheCityUK, the leading cross-sectoral body for financial and related professional services in the UK, is gathering evidence of the importance of the UK’s relationship with the EU including our industry’s view of how that relationship should develop to enable the UK to be part of a globally competitive Europe.

A study of the views of business leaders in our industry, The City Speaks, showed unequivocal support for the UK’s continued membership of the EU. Our survey of public attitudes to EU membership, The City Listens, made it clear how important the views of business leaders are in helping people decide about the EU. Finance for Jobs and Growth in Europe illustrated the role of financial services in delivering solutions to the policy challenges facing the EU. Analysing the Case for EU Membership sets out how the economic evidence stacks up.

This study by Clifford Chance LLP summarises the legal implications of different EU membership scenarios for the UK from a financial services perspective. Its message is clear: membership of the EU is essential for the UK’s success and for the ability of our businesses to compete in world markets.

It has been suggested that the UK could fundamentally change its relationship with Europe, but still maintain all the benefits of membership. This is not the case.

Continued EU membership is essential to this country’s economic wellbeing, but that does not mean that the status quo is good enough. Europe must reform and modernise if it is to better serve the needs of its 500 million people. TheCityUK is gathering evidence as a starting point in the reform debate; the next step is to use this evidence to show how Europe can be made increasingly competitive and successful.
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