Briefings
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.
23 August 2017
Brexit: The way forward for applicable law and civil jurisdiction and judgments?
Both the EU and the UK have now published short papers setting out their positions on judicial cooperation in civil and commercial matters. A comparison of the two perhaps offers a hint as to what a withdrawal deal might look like regarding these issues, as well as guidance as to what parties can do now to safeguard their positions.
21 July 2017
Brexit: European Union (Withdrawal) Bill and the Devolution Dimension
The Scottish and Welsh devolved administrations have said that they will refuse their consent to the Government's Repeal Bill. Refusal would be a political gambit rather than a legal one, but no less significant for that. But the Bill, or something like it, must be passed if the UK's legal system is to function after Brexit. Politics, even of devolution, must not be allowed to block critical measures.
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.
14 July 2017
Brexit: European Union (Withdrawal) Bill Published
The Bill colloquially known as the Great Repeal Bill has now been published. It aims to bring existing EU law into UK law on the UK's exit day. It also seeks to confer wide powers on the Government to cure deficiencies in that retained EU law, but it gives no indication as to how those powers will in practice be exercised. The political battle awaits.
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.
05 July 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.
28 June 2017
Europe holds the cards on clearing yet both sides can profit
There is encouragement for those who fear that Brexit will diminish the City’s status.
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
15 June 2017
Brexit - Implications from the general election
The inconclusive outcome of the UK's general election on 8 June 2017 has magnified the uncertainties surrounding Brexit. For business those uncertainties mean that the prudent planning assumption remains that Brexit will happen and that it may be hard. Equally, business must ensure that the Government understands the needs of business.
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.
31 March 2017
Brexit: The White Paper on the Great Repeal Bill
The UK Government's White Paper on its forthcoming Great Repeal Bill offers a few high level indications as to the Government's plans for the Bill, but the detail, which could prove controversial, must await the publication of the Bill itself. The Bill is due to be introduced into Parliament at the start of its next session, likely to be in May 2017.
29 March 2017
Brexit: The UK gives its article 50 notice
The die is cast. The Rubicon has been crossed. Whatever your favoured expression, whether drawing on the Roman origins of the EU or otherwise, the delivery by the UK on 29 March 2017 of notice under article 50 of the Treaty on European Union means that the UK will in all probability leave the EU on the earlier of entry into force of a withdrawal agreement between the UK and the EU or, failing that, on 29 March 2019.
20 March 2017
Brexit: What will the Great Repeal Bill do?
The Great Repeal Bill will, according to the UK Government, preserve EU law as it stands at the moment before the UK leaves the EU and allow changes to be made by secondary legislation in order to ensure that it functions sensibly. Though apparently straightforward, the volume and complexity of EU law makes this domestication of EU law a complicated task.
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.
24 January 2017
Legislation required to trigger Brexit
The Supreme Court has upheld the High Court's decision in R (oao Miller) v DExEU that the Government needs prior authorisation from Parliament to give the article 50 notice that will initiate the process leading to the UK's withdrawal from the EU. This briefing explores the Supreme Court's decision, what the Government may do next, the difficulties it might face and the possible implications for other litigation for Brexit.
19 January 2017
The UK's negotiating objectives for exiting the EU
The UK Prime Minister, Theresa May, gave a long-awaited speech setting out 12 objectives for the UK’s upcoming negotiation to leave the European Union. With her 31 March deadline for triggering Article 50 approaching, have we learned anything new?
09 January 2017
Brexit and the environment - moving on beyond the referendum
The UK Government announces a Great Repeal Bill. The resulting transposition of all EU law into UK law leads to a number of questions in relation to environmental legislation.
28 December 2016
The EU-Singapore FTA: a mixed agreement?
On 21 December 2016, the Advocate General of the Court of Justice of the European Union issued an Opinion that the EU does not have exclusive competence to conclude its free trade agreement with Singapore because it is a "mixed agreement".
01 December 2016
Milestone for the European economy - UPC almost ready to come into being despite Brexit
Following the UK's vote to Brexit, it was thought rather unlikely that the UK would ratify the agreement for establishing the Unitary Patent Court (UPC).
01 December 2016
Brexit: Will the UK remain in the EEA despite leaving the EU?
When the UK withdraws from the EU, the most likely legal position is that the UK will also fall out of the EEA and will therefore not be able to participate as an EEA member in the single market. But even if that is not so legally, it may take a long time to persuade the other members of the EEA that the UK remains a participant, during which time the UK will not benefit in practice from the single market.
03 November 2016
Brexit - Trade and Treaties
After the historic vote to leave the EU, the UK must now reconsider its trading relationships with countries around the world. Here, Clifford Chance experts together with Professor Jim Rollo of the University of Sussex, consider how companies should prepare themselves for the changes that are to come, specifically analysing what free trade agreements encompass; what the WTO is and how it works; and what third-state agreements might involve.
22 November 2016
The Employment law implications of 'Brexit'
At first glance, it would appear that the 'Brexit' vote will have substantial implications for UK employment law, and the immigration system in the UK. In reality the extent to which current employment legislation will be affected (repealed, revised, and interpreted) will be dictated by the nature of the 'Brexit' which has not yet been determined.
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.
24 October 2016
The UK’s future trade relationships
Post-Brexit, there is likely to be a bespoke relationship between the UK and the EU, which is likely to be based in form on a Free Trade Agreement (FTA). To recreate something akin to the UK’s current global network of preferential trade agreements, the UK will also need to negotiate FTAs with its other key trading partners.
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.
14 September 2016
Brexit: The constitutional endgame and the need to act now
Service of notice under article 50 of the Treaty on European Union will fire the starting gun on the formal process leading to the UK’s departure from the EU. The High Court will decide in October the much-debated question of whether the Government can choose on its own to give notice under article 50 or whether it needs legislative approval first.
24 August 2016
After Brexit
A comprehensive briefing on timing, process, options and legal implications across a range of sectors. We examine free trade agreements, the implications of leaving or remaining a party to the EU customs union, the WTO, and other models. We look at financial services, migration, corporates, contracts, IP, data protection and a range of other issues.
24 August 2016
Brexit: What does it mean for multinationals?
Following the UK’s vote to leave the European Union, multinationals face a range of challenges. At two recent Clifford Chance seminars in London, our experts shared their views on what Brexit means for multinationals outside the financial services sector, focusing on the business and legal impact.
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 August 2016
The landscape after Brexit
In the aftermath of the UK’s decision to leave the European Union, shockwaves continue to reverberate across both the financial markets and the political landscape. Here, Lord Jay of Ewelme, former British ambassador to France and former head of the Foreign and Commonwealth Office, joins Clifford Chance experts to discuss the legal and commercial realities of the UK moving towards Brexit.
28 July 2016
Brexit and UK PFI/PPP Infrastructure projects
In the wake of the 'Leave' outcome of the UK's EU referendum, we consider the potential impacts of a 'Brexit' on UK PFI/PPP projects in the infrastructure sector. Although it is impossible to reach any definitive conclusions due to the continued uncertainty surrounding the terms and timing of Brexit, this note highlights selected issues likely to be of relevance to transactions and to industry participants.
27 July 2016
Brexit - implications for loan documentation: keep calm and carry on
Since the Brexit referendum, some parties have been wondering whether any provisions need to change in their English law loan documentation. Although there is considerable uncertainty as to how and when Brexit might occur and therefore how it could impact documentation, in this briefing we consider some of the potential implications and whether any changes to practice should be considered now.
22 July 2016
Brexit: What next for UK pensions?
One month on from the UK's vote to leave the EU, what's next for UK pensions? In this special 'Brexit' edition of the UK: Pensions Update, we take a look in more detail at the key issues pension schemes and employers should be thinking about both now and in the long-term, pending the UK's formal withdrawal from the EU.
12 July 2016
Brexit - assessing the impact on asset managers
On 23 June 2016, the British people voted to leave the European Union. The next step is for the UK government to initiate the procedures under Article 50 of the Treaty of the European Union, leading to the UK's withdrawal from the EU and, ultimately, to the establishment of a new relationship with its former EU partners.
12 July 2016
Brexit and the Energy and Resources sector
In the wake of the 'Leave' outcome of the UK's EU referendum, we consider the potential impacts of a 'Brexit' on the Energy and Resources sector. 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 industry participants.
11 July 2016
Brexit: What next for the UK insurance sector?
Following the UK's decision to leave the EU, what can the insurance sector do to protect its interests? This briefing provides a view on how you can contribute to the shape of the negotiations on the industry's future relationship with the European Union and focuses on some short term issues for UK insurers.
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.
29 June 2016
Brexit - What next for Environmental & Climate Change Law?
Following the UK's vote to leave the EU on 23 June, we have been considering the possible implications of this vote for environmental and climate change law and practice.
28 June 2016
Brexit and data protection: keep calm and carry on?
Brexit should not distract businesses from their work to prepare for implementation of the EU General Data Protection Regulation in 2018. Reforms are coming with or without Brexit.
28 June 2016
Brexit - What next for Planning?
Following the UK's vote to leave the EU on 23 June, we have been considering the possible implications for planning law and practice.
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.
24 June 2016
The tax impact of Brexit: what steps should UK and EU businesses take now?
On 23 June 2016 the UK voted to leave the European Union. Whilst many of the terms of exit are hard to anticipate, there are a number of predictable adverse effects for which preparations can be made. This briefing outlines some mitigating steps that UK and EU businesses can take now.
21 March 2016
Challenges for Europe’s Capital Markets: A legal and regulatory assessment
A vote on 23 June for the UK to leave the EU would result in a radical change in the relationship between the UK and the continuing Member States of the EU (C-EU) which could fracture the integration achieved so far in these markets and forestall the future integration promised by the plans for an EU Capital Markets Union.
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.
