Antitrust | Banking | Commercial Real Estate | Corporate | Data protection | Employment law | Environment and Climate Change | Financial regulation | Funds and asset management | Intellectual property | Litigation | Pensions | Tax
 

Antitrust

Currently EU competition law: (i) prohibits anticompetitive agreements and concerted practices (Article 101 TFEU) and abuse of a dominant position (Article 102 TFEU); (ii) governs mergers in the EU that meet clear thresholds and conditions (through the EU Merger Regulation); (iii) prohibits certain State aid subsidies; and (iv) imposes public procurement obligations on public bodies to carry out fair, transparent and non-discriminatory tenders. Although it remains unclear how Brexit will be implemented, the following key points should be considered:

• The UK's Competition Act 1998 and Enterprise Act 2002 largely mirror EU legislation so Brexit would not necessarily entail an immediate divergence in competition policy.
• In general, antitrust enforcement with a pure UK dimension will continue to be enforced by the Competition and Markets Authority (CMA) and the various sectoral regulators.
• When the UK leaves the EU (or following any agreed transitional period within which the UK will be bound by EU law):
  • UK courts will cease to be bound by judgments of the EU Courts, so divergences in the interpretation of the prohibitions on anticompetitive agreements and abuse of dominance could arise over time.
  • The CMA will have to assess mergers and cases involving anticompetitive agreements and abuse of dominance in relation to the UK that are currently dealt with by the European Commission.  This will mean an increase in merger and antitrust investigations being carried out by the CMA and the European Commission in parallel.
  • There is the possibility that UK enforcement practices in relation to mergers may diverge over time from those of the EU. This could add an extra element of risk to mergers of businesses that operate in the UK and the EU given the requirement for approval in an extra jurisdiction.
  • Any activities including mergers with an impact outside the UK would continue to be subject to EU law.
  • EU State aid prohibitions and public procurement obligations will cease to apply. This would give the UK government greater freedom/flexibility to provide assistance to UK industry, to favour UK suppliers in government tenders and/or to offer incentives to attract greater foreign investment into the UK.  However, the EU is likely to insist that the UK agrees to subsidy and public procurement obligations (beyond those which apply under the WTO Agreement on Subsidies and Countermeasures and the Agreement on Government Procurement) as a condition on any trading arrangement.  At minimum, any such subsidy obligations will restrict the UK's ability to bail out failing businesses and to grant unlimited State guarantees, and it is likely that they will go much further and closely resemble the current State aid restrictions, albeit with a different enforcement mechanism.

The UK has in the past been influential in the framing of EU competition policy. For example the recently passed EU Damages Directive will introduce minimum standards for antitrust damages claims in the EU, e.g. for disclosure, protection of leniency submissions, limitation periods, which are already features of damages actions in the UK. The departure of the UK may see the EU become more protectionist, with the risk of a renewed push towards establishing national champions and looser State aid rules.

Banking

As there is considerable uncertainty as to how and when Brexit may occur, we do not know exactly how it may affect banking transactions or loan documentation. See our briefing Brexit – implications for loan documentation. However, the main points to note are:

• English law remains an appropriate choice of law for loan documentation.  In terms of jurisdiction clauses we think that, on balance, the best way to proceed would be for parties to continue to follow their usual practice (ie opt for the non-exclusive or exclusive jurisdiction of the English courts),  However, you may want to consider this in light of the circumstances of their transaction if enforcement of English judgments in EU states is likely to be important, as, following Brexit, the Brussels I Regulation (which ensures recognition of judgments across EU member states) may no longer apply.  It is possible that arrangements for the automatic recognition of judgments may be achieved (for example, by the UK becoming party to another convention, such as Hague) or otherwise agreed.  See our briefing Brexit and jurisdiction clauses: Choice of English law following the EU referendum for more information.
• References to the EU (or to EU legislation) in documentation should be checked on a transaction by transaction basis – it is likely that most of these references will not need changing at this stage.
• It is possible that on Brexit, if the UK does not become a member of EEA,  Article 55 of the Bank Resolution and Recovery Directive may need to be addressed in relevant English law contracts through the inclusion of a bail-in clause.  At this stage, it is not a legal requirement to include the clause into a relevant contract and it is entirely possible that it will not become a requirement (for example through EEA membership or the UK maintaining equivalent legislation).  Inclusion in documents should be considered on a case by case basis depending on the circumstances of the transaction.
• It is too early to say whether some clauses such as illegality or increased costs may eventually be triggered.  However, potential loss of 'passporting' may be an issue for some lenders (which could potentially lead to triggering of illegality provisions). The main issue would be where licences are required for the making of (or maintaining participation in) loans in jurisdictions.  For flexibility, and to the extent that they do not already, lenders may want to consider inserting wording into documents which allows them to designate affiliates who meet the relevant regulatory requirements to make loans (without transferring commitment) to preserve a degree of flexibility.
• "Material Adverse Effect" provisions are unlikely to have been triggered by the vote result but it is not yet clear what will happen as a result of any actual Brexit.  Whether future events will trigger a MAE will depend on the terms of documentation and the circumstances or events concerned and will need to be addressed on a case by case basis.  There has been case law (the Grupo Hotelero case of 2013) which suggests that an MAE cannot be called if the situation giving rise to the MAE was already known to the parties when entering into the agreement – it could be argued that the possibility of Brexit has been known since the plans for a referendum were announced.  However, the counter argument would be that an "out" vote and its actual effects may not have been foreseeable.  When negotiating documents with MAE provisions, close attention should be paid to the MAE wording.  

Commercial Real Estate

• The principles of English real estate law are derived from UK statute and common law, so EU law tends not to shape English real estate rights significantly. Furthermore, none of the key points of the Government's probable agenda for the scope of UK negotiations with the EU appear likely to affect English real estate rights directly. Consequently, we would expect English real estate law to be only indirectly affected by Brexit.
• There are some specialist areas within the umbrella of a real estate transaction that derive some of their legislation from EU law, such as environmental law and health and safety law. Following  Brexit, we expect that such EU legislation which is already implemented in the UK (such as the commitment to carbon reduction) will probably be retained, at least at first, as UK public policy in this regard is unlikely to change significantly in the short term. Employment issues can play an important role within property management contracts and construction transactions.  Additionally competition laws can sometimes impact on cross-border or particularly high value real estate deals. The effect of Brexit on these particular areas of law over time could be significant, with associated effects on the commercial real estate sphere.
• Most investors from outside the UK use offshore structures to hold UK property. as they are exempt from capital gains tax. The UK government announced in November 2017 that from April 2019 this exemption will end. 
• We consider that the legal fundamentals of UK asset purchases and sales, UK development projects and share purchase transactions governed by English law are unlikely to be significantly affected by Brexit. 
   

Corporate

• Listed companies who experience large falls in their share price as a result of market volatility may request the FCA to suspend trading of their shares. The FCA may suspend trading if the smooth operation of the market is, or may be, temporarily jeopardised or it is necessary to protect investors.
• Companies with publicly traded financial instruments should also consider whether any of the repercussions of Brexit on their business amount to inside information which, once identified, should be promptly announced to the markets. Their directors and other persons discharging managerial responsibilities must not deal if they are in possession of inside information and they should exercise caution around dealings if the company's share price is falling significantly.
• Companies with live transactions should consider whether Brexit affects any of the terms in their contracts, for example does the contract contain a material adverse change, force majeure, change of law or illegality clause that may be triggered by the vote to leave or Brexit itself? The answer to this will depend on the drafting of the relevant clauses.
• Companies should also consider how to address Brexit when documenting future transactions, for example whether to include provisions relating to change of law/illegality, termination rights for market disruption or material adverse change (that would be triggered on a disorderly Brexit), how terms referencing the EU, EEA and EU law are defined and how governing law and jurisdiction clauses work.
• The Companies Act 2006 is the core legislation affecting the incorporation and operation of UK companies. Some parts of the Companies Act 2006 derive from EU directives, including some of the provisions relating to accounts, statutory audit, dividends, capital maintenance, disclosure of information and various shareholder rights. Such provisions will not fall away following Brexit (because they have already been implemented into domestic legislation) and are unlikely to be significantly impacted by Brexit.
• There are some EU-wide corporate law concepts that we expect will fall away:
  • There are three forms of EU legal entities (a European public limited company/Societas Europaea, a European Co-operative Society and a European Economic Interest Grouping) – these are unlikely to be available for registration in the UK following Brexit. It is currently unclear what will happen to those entities that have already been registered in the UK.
  • The EU cross-border merger regime that allows mergers between companies in different EU member states is unlikely to be available in the UK following Brexit.
• The UK equity capital markets are heavily regulated by EU legislation, in particular:
  • The market abuse and insider dealing regime is derived from an EU regulation. This regime will fall away when the UK leaves the EU so the UK will need to replace the regime or provide for the EU regime to continue. There continue to be numerous issues with the new EU regime so this may allow the UK to develop a regime that works better for UK listed companies but that could be at the expense of the integration and smooth functioning of the EU capital markets.
  • There is currently a single disclosure and transparency regime for companies listed on a regulated market anywhere in the EEA – companies with dual listings therefore do not have to comply with separate obligations in more than one EU member state. Following Brexit, companies with a listing in the UK and another EU member state may find they are subject to two regimes, increasing the regulatory burden.
  • A prospectus to offer or list shares or bonds which is approved by the FCA in the UK can be used in other member states without any further approval and minimal additional administrative requirements. It is not clear whether this passporting right will continue post Brexit – if it is not available, public offers in EU member states may become more complicated for UK issuers.
  • Takeovers in the UK are governed by the Takeover Code which we expect will be largely unaffected by Brexit but the provisions on shared jurisdiction may no longer work, again leading to greater complexity for takeovers involving some companies with an EEA dimension.
     

Clifford Chance has published the following briefings: (6 July 2016) Brexit: Business and legal issues for multinationals? | (1 July 2016) Brexit: Trade, tax and treasury issues for multinationals. Brexit content is also available on the Global M&A Toolkit.

Data protection

The UK data protection regime implements two EU Directives (on data protection and privacy in relation to electronic communications). A new (and more onerous) EU General Data Protection Regulation (GDPR) is due to take effect on 25 May 2018. The European Commission has also proposed to replace the EU Directive on privacy in relation to electronic communications with a new (and more onerous) EU ePrivacy Regulation, proposed to take effect on the same date (although in practice likely to be delayed by at least several months).  The following key points should be considered: 

• GDPR will restrict transfers of personal data to countries outside the EEA which have not been determined by the European Commission to ensure an "adequate" level of protection for personal data.
• The GDPR will cease to be effective in the UK on Brexit, but is likely to be replaced by a new UK law having essentially the same effect. Subject to any transitional arrangements, the UK will in theory have the freedom to introduce a new, more "light-touch", regime, but in practice is unlikely to do so, at least in the short term.
• There is still the risk, however, that the UK will not benefit from an adequacy determination from the Commission, either in the short to medium term (because the Commission has to go through the process of considering the adequacy of the UK regime, and in principle should not begin that process while the UK is still an EU member state) or in the longer term (because the Commission decides that other aspects of the UK regime – for example in relation to government access to communications data – undermine the adequacy of data protection law). In those circumstances, the UK may similarly not treat the EU regime as adequate. 
• Although the GDPR restrictions (and any UK equivalents) will not amount to an absolute prohibition on sharing personal data between the EU and the UK, they will impose very substantial administrative burdens on cross-border businesses. It is therefore important that, if possible, the UK is treated as adequate by the EU (and vice versa), either through quick adequacy determinations under the GDPR and its new UK equivalent or through a separate transitional or long-term treaty arrangement between the EU and the UK. In practice, although it will not be possible to reach adequacy determinations immediately on Brexit, a transitional arrangement may give time for adequacy determinations to be reached in the medium term.
• The UK will also need to replicate under its own law the adequacy determinations made by the European Commission in respect of other countries, so that transfers of personal data to "adequate" regimes such as Canada, Switzerland and the U.S. "Privacy Shield" arrangement can continue without interruption.
• The UK is also likely to lose the advantage of the "one-stop shop" regulatory concept in the GDPR. Businesses operating cross-border will find themselves regulated by both UK and EU member state regulators where they might previously have been regulated only in a single lead jurisdiction.
• The UK will lose the limited influence that it has over the future development of EU data protection law, which will continue to apply to UK businesses with EU operations. The UK has been an advocate within the EU for a relatively business-friendly data protection regime. It is questionable how influential the UK's advocacy has been, but Brexit may lead to a less business-friendly regime going forward within the EU. The Information Commissioner's office has been very active in the development of pan-European guidance on interpretation of the GDPR and this role is likely to be reduced or eliminated on and from Brexit. The UK Government is keen to retain some influence over EU data-related policy-making as part of the longer term settlement.

Employment law

A significant portion of UK employment law is derived from EU law including the legislation that governs maternity and paternity leave, agency workers' rights, paid holiday and the protection of employment upon the transfer of a business. Some of this domestic legislation has however been 'gold plated' beyond the basic requirements of EU law.

EU derived domestic legislation is perceived by some to have led to increased compliance and administrative costs for businesses. The Government has, however, proposed that current EU derived employment legislation will be converted into domestic legislation whatever the nature of Brexit, maintaining the protections and standards that benefit workers.  In addition existing ECJ judgments will be given effect in our domestic law at the point of Brexit.

Practical Implications

• It remains to be seen whether the domestic courts will consider themselves bound by post-Brexit decisions of the ECJ that develop employment law principles beyond the principles established in ECJ case law at the point of Brexit.
• Companies that operate European Works Councils will have to revisit their arrangements whether the Company is UK head quartered or not.
• Companies may wish to audit their current staffing arrangements both within the UK and in EU Member States to assess which EU nationals may potentially be required to apply for a work permit if the current immigration treatment of EU nationals is not maintained. Equally UK nationals working in Member States may have to revisit their immigration status.
• In practice it is likely that some form of grandfathering arrangement may put in place to enable EU and UK them to remain working in the UK and EU respectively without the need for a work permit; for an interim period at least.
• Relocation, redundancies and off-shoring may arise, potentially triggering redundancy, Works Council and TUPE consultation obligations.

Clifford Chance briefing: (29 March 2017) Brexit employment issues: an update

Environment and Climate Change

A great deal of current UK environmental law derives from EU legislation put in place over several decades. The legal impact of Brexit would depend on the how the split is achieved legally, and the model put in its place governing the UK's ongoing relationship with the EU.

• EEA model: The UK would have to retain or re-enact most EU environmental legislation to ensure full access to the EU market. This would include areas such as integrated environmental permitting, water and air quality, waste management and chemicals legislation.
• Bilateral Agreements model: In general, the UK would still have to comply with all rules relating to standards of safety and environmental sustainability of products being put on the EU market. The UK might be able to relax some laws relating to operational environmental protection controls within UK borders. However, environmental and safety standards might not be significantly lowered more generally for a number of reasons:
  • The presence of international agreements which the UK will still have to comply with (e.g. the Kyoto protocol on carbon emission reductions, OSPAR Convention on marine pollution, the Bern Convention).
  • The UK has been a driver for stronger EU policy in some areas (e.g. integrated permitting, climate change policy and emissions reporting) where the EU has largely adopted UK practices; or the UK has pursued its own environmental framework, e.g. in relation to contaminated land remediation. 
  • While attempts to roll back environmental protections might find favour with some business sectors, these would be subject to close scrutiny by NGOs and be likely to be resisted by NGOS and the public alike.
• If the UK decides to weaken any particular environmental standards or regulatory frameworks, it seems likely that any change would be done through a process of gradual reform rather than an overnight cull of environmental laws. Irrespective of whether standards would be significantly lowered, it is possible that environmental policy driven purely by domestic politics would be more changeable than the longstanding and gradually evolving policy framework that currently applies across the EU.
• In Autumn 2017, the Environment Secretary, Michael Gove, made a number of statements seeking to allay concerns about weakening of environmental standards following Brexit. To this end he made a number of proposals aimed at ensuring that not only would environmental standards in the UK be maintained by Brexit, but enhanced.
• In relation to climate change action, even if EU legislation and targets for emissions reductions and renewable energy will no longer apply, the UK will still be bound by its own strong domestic climate legislation. The UK Government has reconfirmed its climate agenda since the vote.
• For key planning issues, see Commercial Real Estate section

Clifford Chance has also published briefings which explores some of the key issues in relation to environment and climate change law: (29 July 2016) Brexit - What next for Environmental & Climate Change Law? and (7 July 2016) Brexit and the Energy Sector: UK Climate Change and Renewables Policy and Targets

Financial regulation

• As Brexit negotiations continue, there remains a great deal of uncertainty about what a future relationship between the UK and the EU might look like. However, both UK and EU authorities have been encouraging financial services firms to ensure that their plans contemplate a "no deal" scenario, where the UK leaves the Single Market and no special agreement on market access is reached for financial services.
• In this scenario, the UK's post-Brexit status as a "third country" would be akin to that of US or Singapore now and financial services firms would lose the benefit of existing rights to passport financial services activities between the UK and EU27. UK financial services firms looking to provide services in the EU would have to navigate a patchwork of national licensing regimes, face restrictions on cross border business and many impediments compared with the market access that an EU or EEA firm would have.
• The loss of passporting rights also creates uncertainties for the status and continuity of existing cross-border contracts for financial services, particularly those which contemplate the ongoing provision of financial services or carrying on of regulated activities during the life of the contract. The UK has however committed to introduce temporary permissions and recognition regimes to allow EU27 firms and financial market infrastructures to continue to provide services in the UK for a time-limited period in a no deal scenario, with no implementation period in place.
• Some areas of EU financial regulation do have third country "equivalence" regimes that permit third country firms from jurisdictions with rules "equivalent" to EU rules to operate more freely in the EU. However, these equivalence regimes are far from being a panacea. They only apply in discrete product /service areas, e.g. recognition of US CCPs under EMIR and a limited EU passport under MiFIR to equivalent third country firms for wholesale business in the EU. Also, the Commission is not generally obliged to make any equivalence determinations and equivalence can be lost if a third country's laws and regulations fail to keep pace with EU regulatory developments.
• Much existing UK financial regulation (statutes, statutory instruments, rules and guidance) is full of concepts and definitions taken from EU legislation. Also, some important components of UK financial regulation (e.g. the civil market abuse regime under MAR and rules on derivatives clearing under EMIR) are contained in directly applicable EU Regulations. The UK government intends to "domesticate" this vast body of EU law or EU related law through the Withdrawal Act, by replicating directly applicable EU laws in UK statute. This presents a significant challenge, as for example, references to EU institutions and other "inoperables" will need to be amended to reflect the post-Brexit status of the UK as a third country vis-à-vis the EU. This process of transforming EU law into UK law needs completing before the withdrawal agreement and departure happens otherwise there will be legislative gaps in UK law by the time of withdrawal.
• In financial services the UK's current relationships with many non-EU countries in technical areas are dealt with at an EU level, e.g. recognition of US CCPs under EMIR and EU-US data protection arrangements. Following Brexit, the UK would also need to rebuild these types of relationships bilaterally, e.g. by regulators entering into MoUs and other arrangements for supervisory co-operation.

Funds and asset management

The UK funds and asset management industry currently benefits from the ability to passport both certain management and advisory activities and fund marketing activity across the EU. These passporting rights have been used extensively to further the single market and have shaped the way many asset managers conduct their business.  There are a number of key areas of potential impact for funds and asset managers:

• Loss of passporting rights – based on current rules, a Brexit would give rise to loss of managing and marketing passporting rights into other EU member states. The potential impact of this on retail fund managers is considerably greater than the impact on private fund managers operating funds marketed to sophisticated and institutional investors only.
• Currently, Brexit will mean that UK firms no longer qualify for a passport under existing EU legislation relevant to fund management and marketing activity (primarily the Markets in Financial Instruments Directives (MiFID), Undertakings for Collective Investment in Transferable Securities Directives (UCITS) and the Alternative Investment Fund Managers' Directive (AIFMD)).
• Managers who do not rely on passporting rights are unlikely to be considerably affected.
• UCITS funds are likely to be more heavily impacted that the private equity fund management industry because:
  • UCITS funds must be domiciled in an EU jurisdiction and managed by an EU management company. Post-Brexit, funds established as UCITS in the UK would no longer fall within the scope of the UCITS Directive and will no longer be able to rely on the passporting provisions that allow UCITS established in one member state to be managed and marketed in another.
  • The UCITS regime is designed to facilitate marketing of interests in those funds to retail investors. However, UK domiciled UCITS would, post-Brexit, be considered a "non-UCITS retail scheme", which would in turn fall within the definition of "alternative investment fund (AIF)" under AIFMD. As the UCITS marketing passport would no longer be available, a manager wishing to market interests in such a vehicle into other EU member states would need to do so under AIFMD, which requires compliance with individual national private placement regimes (NPPRs). This would likely cause difficulties for existing UCITS funds re-categorised in this way because most NPPRs prevent or heavily restrict marketing to retail investors.
  • The impact on private/alternative fund managers managing closed-ended AIFs will be less because there is no requirement that AIFs be domiciled in the EU, other than where an EU AIFM wishes to rely on the AIFMD marketing passport. Post-Brexit, existing EU AIFMs managing UK domiciled AIFs will be able to continue to manage those vehicles and where marketing into other EU member states will need to comply with the NPPRs as is currently the case for managers (EU and non-EU) marketing non-EU AIFs into the EU.
  • UK managers of UCITS and AIFs would need to consider whether they become subject to any local licensing requirements as a result of managing and marketing activities if they are doing so in other EU member states.
• Portfolio management and advisory services: many asset managers provide asset management related services under MiFID permissions (e.g. delegation of portfolio management of certain funds or acting as an advisor to a UCITS manager or AIFM, or separate account discretionary or advisory arrangements). Currently, a Brexit would mean loss of the MiFID investment services passport for UK investment firms so they would not be able to provide those services on a cross-border basis, and they would become subject to the national rules/licensing regime relevant in each individual member state in which they want to conduct such services.
• In addition to loss of passporting rights for UK firms, asset managers operating in other EU member states would lose the ability to passport their services and market their funds into the UK. Those firms would need to comply with the current UK Financial Services and Markets Act 2000 regime and related FCA rules. 

Intellectual property

• Various intellectual property rights cover the whole EU through a single unitary right, for example European Union Trade Marks (EUTMs) and Registered Community Designs (RCDs). On a full exit, rightholders who protect their rights in Europe via the EUTM, RCD and other unitary systems would be at risk of being deprived of protection in the UK if they did not have equivalent national rights in the UK.
• Some rightholders may also be impacted because the rights of their nature require an EU nexus for the existence of the right. These rights tend to be of application to specific sectors. For example, the EU database right requires the "maker" of the database to be EU based. Post Brexit, UK rightholders might lose these rights (at least outside the UK) and rightsholders in Member States might lose rights in the UK.
• The European Commission and the UK government recently published a draft agreement on the withdrawal of the UK from the EU, available here. Title IV of the draft agreement is devoted to intellectual property rights. The draft agreement includes a transition period (which would start on the date of entry into force of the agreed withdrawal agreement until 31 December 2020) during which EU unitary rights (and EU laws) would continue to apply in the UK.
• The draft agreement provides for continued protection in the UK for unitary IP rights following the expiry of the transition period. The draft envisages that the UKIPO will automatically and at no cost to rightsholders grant a separate UK right in respect of registered unitary rights. Filing, priority and seniority dates will be preserved. Unregistered Community design right existing at the end of the transition period will continue to subsist in the UK for its remaining duration. Holders of database rights with a nexus to the United Kingdom prior to the end of the transition period will continue to have an enforceable intellectual property right in the United Kingdom.
• The Withdrawal Act will incorporate European legislation into UK law. Much of the UK's IP law today (except patent law, see below) is based on European Directives, which are in turn based on International Treaties, which means at least initially there is unlikely to be significant changes to the UK's IP law. Following a full Brexit the UK would be free to amend European legislation which was incorporated into national law. The draft withdrawal agreement also provides that the Supreme Court will be entitled to reverse decisions of the Court of Justice of the European Union after the transition period, allowing for judicial reinterpretation of existing legislation.
• Most of the UK's substantive patent law would be unaffected by the Withdrawal Act, as the UK's substantive patent law is currently driven by the European Patent Convention, which is not a EU instrument. SPCs are granted by national offices so will be unaffected provided the UK implements the necessary equivalent legislation. The draft withdrawal agreement makes provision for applications for SPCs filed prior to the end of the transition period to survive. 
• Following the outcome of the referendum, the UK government confirmed its intention to proceed with the ratification of the Unified Patent Courts Agreement (currently UK ratification is one of the preconditions for it to go live). If and when the unified patent litigation system comes into effect this will also be the trigger for the availability of unitary patents, covering most of the EU. The Unified Patents Court Agreement was ratified by the United Kingdom on 26 April 2018, indicating the UK's intention to participate in the new European system. Further delay of the implementation of the Unified Patent Court Agreement has been caused by a challenge to the constitutionality of the German legislation enabling the ratification of the Unified Patent Courts Agreement (German ratification is another precondition for the system to go live). The challenge asserts that Unified Patent Court judges do not have the required degree of independence or democratic legitimacy and that the Unified Patent Court is incompatible with EU Law. Owing to the German challenge, timing remains unclear. 
• Trade mark owners who manage their portfolios of EU rights through in-house teams based in the UK may need to change their approach as UK-qualified practitioners may lose rights of representation before the EUIPO, the European authority for EUTMs and RCDs. The draft withdrawal agreement provides for continued rights of audience before the Court of Justice of the European Union for UK practitioners in respect of cases ongoing at the end of the transition period.
• Rightholders who depend on use of their rights in other Member States to maintain the validity of their rights in the UK (or their use in the UK to maintain protection in other Member States) may need to reconsider their registration strategies. If a trade mark is not put to genuine use for a period of 5 years, it effectively becomes unenforceable. "Genuine use" of an EUTM only requires use in a substantial part of the European Union, allowing the EUTM to remain valid without need for use in every Member State. The draft withdrawal agreement provides however that the UK trade mark granted based on a EUTM at the end of the transition period shall not be liable to revocation where it has been used in the European Community in the previous five years.
• If free movement of goods within the EU ceases to apply to the UK, it might become easier to prevent parallel imports from the EU and to impose absolute territorial restrictions on UK licensees. The position may vary depending on whether the UK becomes part of the EEA.

Clifford Chance has also published a briefing which explores some of the key issues in relation to IP: (15 September 2016) The impact of Brexit on IP rights in the Global Intellectual Property Newsletter: IP Topics from around the Globe.

Litigation

• English law: Substantive English law used in transactions will be unaffected by Brexit because it is not, with trivial exceptions, derived from EU law.  Regulatory changes arising from Brexit could, however, affect the enforceability of an English law contact (eg if the loss of a passport or other authorisation in a member state in which an obligation must be performed rendered contractual performance illegal in that member state, it may be that performance would be unenforceable as a matter of English law).
• Choice of law: The validity of a choice of English law will be unaffected by Brexit.  EU member states will continue to apply the Rome I and Rome II Regulations, which require the law chosen by the parties to be applied whether or not it is the law of an EU member state.  Rome I and Rome II will continue to apply, with minor changes, as retained EU law in the UK after Brexit.
• Choice of court: The English courts will continue to uphold the parties' choice of the English courts after Brexit.  The English courts may also recommence granting anti-suit injunctions to restrain proceedings in EU member states brought in breach of a jurisdiction clause.  There may be a question as to whether courts in EU member states would uphold a jurisdiction clause in favour of the English courts (at least, unless the English court was first seised: article 33 of the Brussels I Regulation).

As soon as practicable after Brexit, the UK will sign up in its own right to the Hague Convention on choice of court agreements.  The EU is already a party.  For contracts containing exclusive jurisdiction clauses in favour of the English courts entered into after the Convention has come into force in UK, courts in EU member states will be obliged to defer to the parties' choice of the English courts.

• Other jurisdictional rules: After Brexit, the Brussels I Regulation will cease to determine the jurisdiction of the English courts over parties domiciled in the EU and in certain other circumstances.  The jurisdiction of the English courts (perhaps with limited exceptions, eg consumers) is likely to revert to the rules applicable now to parties not domiciled in the EU.  The jurisdiction of courts in EU member states over parties domiciled in the UK will be determined by the national law of each member state, with the limited exceptions where the Brussels I Regulation applies regardless of domicile (eg proceedings relating to real property in a member state).
• Enforcement of judgments: An English judgment given before Brexit is likely to continue to be enforceable under the Brussels I Regulation in EU member states after Brexit (assuming that the UK and the EU enter into a withdrawal agreement).  A judgment of the English courts given after Brexit may not be enforceable by this (theoretically, quick and easy) means but will continue to be enforceable under the law of each member state applicable to foreign judgments not covered by a treaty (ie the law currently applicable to, for example, New York judgments).  A judgment given by a court in an EU member state after Brexit will be enforceable in England by common law means.

An English judgment given in proceedings to which the Hague Convention applies will be enforceable throughout the EU.

• Arbitration: Arbitration is unaffected by Brexit.  The UK and all EU member states are parties to the New York Convention, which provides for the recognition of arbitration agreements and the enforcement of awards.

Pensions

Much of current UK pensions legislation is domestic in origination and so will be unaffected by Brexit. However, some of it does have EU-roots. For example, parts of the Pensions Act 2004 relating to scheme funding originally derived from Europe. In addition, some of the UK's pensions practices derive from European case law.

Once the UK has formally exited, the extent to which UK pensions law will be impacted will depend on the terms of the UK's exit and any agreement reached regarding a future framework with the EU. In light of the European Union (Withdrawal) Act 2018, which was recently passed, it is not anticipated that there will be any immediate changes, although it remains to be seen to what extent the English courts will follow/apply post-Brexit decisions of the ECJ that develop new pensions law principles post-Brexit. Under the Withdrawal Act, UK courts will not be bound by decisions of the ECJ made after exit day, but "may have regard" to those decisions "so far as relevant to any matter before the court".

Key things to be thinking about in the short term from a pensions perspective:

• Employer covenant – a key issue for defined benefit (DB) schemes is the effect (if any) that Brexit may have on the sponsoring employer's business; as this will have a direct impact on the employer covenant (the legal obligation, ability and willingness of an employer to fund its pension scheme). Covenant is not something which will be new to DB scheme trustees (or employer(s)), but it will be important to understand how the employer's business is being affected following the Brexit-vote and any further potential implications after exit day.
• Funding –the longer-term impact remains to be seen (although the Brexit vote itself resulted in market volatility, affecting the funding position of many schemes). 
• Investment issues – the impact on financial markets may also be cause for DB scheme trustees to review their investment strategies, whilst defined contribution (DC) schemes and providers will be considering whether the investment options made available to members remain appropriate.
• Data protection – changes to the regime for data protection came into effect in all member states, including the UK on 25 May 2018 under the EU General Data Protection Regulation. The GDPR introduced new concepts and some enhancements to the protections for individuals which would have required most pension scheme trustees to alter their existing processes. It is expected that an equivalent regime will be maintained post-Brexit.

Longer-term issues include:

• Impact on financial services regulation – a key issue attracting press attention is the impact on financial services regulation and arrangements for cross-border access and passporting rights. For example, in a pensions context, there are concerns around how insurers and other personal pension providers who currently rely on passporting rights will be permitted to continue to pay benefits to pensioners and other pension scheme beneficiaries living outside of the UK in the EU after exit day. The European Commission and the UK Government recently published a draft withdrawal agreement which would permit passporting to continue during a transitional period until 31 December 2020. However, this is yet to be agreed and approved by the UK and the EU.
• Corporate transactions – if the long-term impact of Brexit is to increase the magnitude of DB scheme deficits whilst simultaneously weakening the strength of sponsoring employers, it is possible this could make pension schemes more of a stumbling block to corporate transactions and restructurings where a UK DB scheme is involved. There could also be changes to the powers given to the UK Pensions Regulator and / or the Pension Protection Fund. Indeed, in March 2018, the Government published a pensions White Paper setting out proposals to reform the regulation of DB schemes. This was followed by a DWP consultation launched at the end of June, which sets out proposals to create a "stronger" Pensions Regulator that can intervene earlier and more quickly when DB schemes are at risk. The consultation proposes major reforms, which, if implemented, could have a significant impact on business activity (for example corporate, finance and restructuring transactions) where DB schemes are involved.  These include introducing new requirements to notify the Regulator early of certain proposed transactions; imposing fines of up to £1 million and new criminal penalties to punish serious wrongdoing; and expanding the scope of the Regulator's existing so-called anti-avoidance or 'moral hazard' powers. The consultation is open until 21 August.
• IORP II – the IORP II Directive came into force in January 2017 and member states will have until 13 January 2019 to implement it into their national laws. Many of the requirements in IORP II are already reflected (at least to some extent) in current UK pensions legislation, such that its implementation should not be too problematic. IORP II does, however, introduce a couple of new themes relating to intergenerational fairness and consideration of environmental, social and governance factors in the investment context. These provisions are not particularly prescriptive and it will be interesting to see how they are interpreted by the UK in its implementation of IORP II.
• Scottish independence – if Scotland were to become independent from the UK and a member of the EU in its own right, this could have an impact on UK pensions. Again, the extent of the impact would depend on the nature of the UK's exit and the terms of its future dealings with the EU.

Tax

After Brexit, the legal position as regards UK tax law will depend on the terms of the alternative settlement to full EU membership which is agreed by the UK.  The key implications from a tax perspective are set out in our briefing: The tax impact of Brexit: what steps should UK and EU businesses take now?

If there is a comprehensive transitional period then most tax changes will be deferred until transition ends. However, after that time, unless there is a very expansive FTA between the UK and EU, the UK Government would be free to implement tax legislation which would not currently be compatible with EU law.

Tax measures which are contrary to the free movement of goods, establishment and/or capital could be implemented, including taxes on the raising of capital or cross-border flows.  Furthermore, any area of UK tax law which is currently incompatible with EU law may become valid.  For example:

• Controlled foreign company legislation could be extended to its intended original scope, with CFC charges imposed on UK companies calculated by reference to the profits of subsidiaries based in EU jurisdictions with low effective rates of tax (although there is at present no indication the Government will do that)
• The 1.5% tax charge on the issue of shares and securities to clearance services or depositories, which was found to breach the EU Capital Duties Directive, could be enforced (although the Government has announced that it does not intend to do so after Brexit).

An FTA may include rules similar to the prohibition on "State aid" in Art 107 TFEU. But if it did not then the UK would be free to enact legislation and make arrangements which would currently constitute unlawful state aid, subject only to WTO rules. For example, the Government could incentivise companies to relocate to the UK by offering tax "favours", or advance tax rulings, which provide a selective advantage to those companies over others.

We could even see regions, cities and councils compete to provide business with tax incentives (as they do in the US). Whether this is a good idea from a policy perspective is very arguable – but there could be significant political pressure on Government, at all levels, to provide State aid if able to do so. 

The more immediate issue will be establishing how the detail of UK Tax law is impacted by Brexit. This is unlikely to be completely clear for some time. For example:

• The extent to which CJEU case law and EU jurisprudence will influence the decisions of UK courts after Brexit and the interpretation of UK tax law (especially in relation to VAT) remains uncertain;
• It is unclear how pending (or potential) cases brought against the UK Government on the basis of UK tax law being incompatible with EU law will be resolved; and
• The UK courts may no longer be bound to follow the principles of interpretation established by the CJEU, so the overarching cornerstones of VAT law (such as the principles of legal certainty, fiscal neutrality, equivalence and non-discrimination) could fall away, which would have a profound impact on the way in which VAT law is interpreted.

If these uncertainties in relation to taxation are not adequately resolved in the post-Brexit alternative settlement, this is likely to result in potentially unwelcome uncertainty for UK companies.  For example:

• Some UK companies may have taken comfort from the limits placed on the UK Government's taxing powers by EU law.  Indeed, these limits may have been fundamental to those companies' decisions to base themselves in the UK;
• Preferential EU rules applicable to cross-border transactions may no longer apply.  For example, dividends and interest paid by certain EU subsidiaries to UK parents may become subject to withholding tax as a result of the Parent-Subsidiary Directive and Interest and Royalties Directive no longer applying.  Moreover, VAT may need to be charged on transactions where it is currently not charged and UK businesses may need to register for VAT in EU countries where they are currently not required to do so;
• The remaining EU Member States would equally be free to exercise their taxing powers in a manner which, by accident or design, discriminates between local entities and UK entities (or local branches of UK entities);
• The UK would lose its influence over tax-related developments within the EU. This could be significant in relation to the proposed EU Financial Transaction Tax, which the UK has so far lobbied against effectively;
• VAT provisions in commercial contracts may need to be amended in light of a full Brexit (e.g. where VAT is defined by reference to EU VAT legislation only, in which case the contractual provisions may no longer apply in relation to UK VAT); and
• In the absence of an alternative free trade agreement, the EU would impose the Common Customs Tariff on imports from the UK, and the UK would likely impose tariffs (limited by its WTO obligations) on imports from the EU.

At a wider international level, Brexit is unlikely to have such a significant impact:

• The UK would continue to benefit from and remain subject to its extensive network of double tax treaties, including (where relevant) their non-discrimination provisions;
• The UK would also continue to have influence in international efforts to drive tax policy, including the ongoing OECD BEPS project; and
• Depending on the alternative settlement reached, the UK may be free to negotiate its own free trade agreements with other jurisdictions, which could result in fewer tariffs and duties on exports and imports between the UK and those other jurisdictions.

There is one important exception for some companies in the EU receiving income from the US on which they claim relief under double tax treaties with the US. US tax treaties limit treaty benefits to certain classes of person, and in many cases one important class is private companies with EU shareholders. Any EU company in this position which has significant UK shareholders will need to consider if Brexit has the indirect effect of causing it to lose its eligibility under the relevant US treaty.

Phase two negotiations | Phase one negotiations | Terms of reference

Phase two negotiations (2018)

Joint publications

(19 June 2018) Joint Statement from the negotiators of the EU and UK Government on progress of negotiations under Article 50 TEU on the UK's orderly withdrawal from the EU

(4 May 2018) Agreed list of topics for discussions on the future framework

(19 March 2018) Draft Withdrawal Agreement - Mark-up showing areas of agreement

EU

(29 June 2018) European Council (Art. 50) conclusions

(23 March 2018) European Council (Art. 50) Guidelines on negotiations for framework of future relationship

(15 March 2018) Draft Withdrawal Agreement sent to UK authorities for negotiation

(7 March 2018) European Council President delivers statement on draft guidelines for future relationship

(7 March 2018) European Parliament - Draft resolution to wind up the debate on the framework of the future EU-UK relationship

(28 February 2018) Draft Withdrawal Agreement

(7 February 2018) Position paper on transitional arrangements in the withdrawal agreement - translates into legal terms the principles laid down in the European Council Guidelines of 29 April and 15 December 2017 and in the supplementary negotiating directives annexed the Council Decision of 29 January 2018

(31 January 2018) Level Playing Field - an introduction - Internal EU27 slides for discussions on framework for future relationship

(29 January 2018) Supplementary directives on transition period | Statements

(15 December 2017) European Council (Art. 50) guidelines for the second phase of the Brexit negotiations

(15 December 2017) Slide presented by Michel Barnier, European Commission Chief Negotiator, to the Heads of State and Government at the European Council (Article 50)

(8 December 2017) Statement from European Council President, Donald Tusk, on draft guidelines for the second phase of the Brexit negotiations

UK

(12 July 2018) White paper - The future relationship between the United Kingdom and the European Union​ | Oral statement by the Secretary of State for Exiting the European Union to Parliament

(6 July 2018) Government statement following Cabinet away day at Chequers​

(2 July 2018) PM Commons statement on June European Council

(21 June 2018) Home Office - EU Settlement Scheme: Statement of Intent

(26 March 2018) PM Commons statement on European Council

(7 March 2018) Chancellor's speech on financial services

(6 March 2018) Technical note: other separation issues - phase 2

(2 March 2018) PM's speech on the UK's future economic partnership with the EU

(27 February 2018) Speech: Britain’s Trading Future

(21 February 2018) Draft text for discussion: implementation period

(20 February 2018) Speech: Foundations of the Future Economic Partnership

(17 February 2018) Speech: PM at Munich Security Conference

(8 February 2018) Technical note on international agreements during implementation period

(26 January 2018) Letter from UK Government to business leads on implementation period

Position papers and technical notes

Phase one negotiations (June – December 2017)

(28 February 2018) European Commission - Draft Withdrawal Agreement

(8 December 2017) Communication from the European Commission to the European Council recommending sufficient progress on phase one negotiations

(8 December 2017) Joint report from the negotiators of the EU and the UK Government on phase one negotiations progress

(8 December 2017) Joint technical note expressing the detailed consensus on citizens’ rights

(15 December 2017) European Council (Art. 50) guidelines for Brexit negotiations

Position papers and technical notes

Terms of reference and negotiating objectives

(19 June 2017) Terms of reference for the Article 50 negotiations between the UK and the EU

Clifford Chance briefings

• (16 July 2018) Britain's Brexit Blueprint: The UK Government publishes its future relationship white paper
• (4 July 2018) Crunch time? The EU takes stock of Brexit at the June European Council
• (23 March 2018) Brexit - what does the transition agreement mean?
• (23 February 2018) The UK's approach to Brexit transition
• (8 December 2017) Brexit: sufficient progress, but to where?
• (26 October 2017) A Brexit transition period - wasting asset or business necessity?
• (23 June 2017) The future UK-EU Relationship – Re-examining the EEA and other options
• (29 March 2017) Brexit: The UK gives its article 50 withdrawal notice
• (14 March 2017) Brexit: Legislation passed allowing the UK to give notice under Article 50
• (24 January 2017) Legislation required to trigger Brexit
• (3 November 2016) Brexit: Parliamentary approval required for UK to leave the EU

European Union (Withdrawal) Act 2018

• European Union (Withdrawal) Act 2018
• Explanatory Notes
• Legislation Tracker - access to documents from passage through Parliament
• (13 December 2017) Written statement (HCWS342) made by David Davis, Secretary of State for Exiting the EU, on procedures for the approval and implementation of EU exit agreements
• (12 December 2017) Economic Secretary to the Treasury letter to Treasury Select Committee on financial services EU exit - roles and responsibilities of HMT and UK regulators

Secondary legislation

• European Union (Withdrawal) Act 2018 (Commencement and Transitional Provisions) Regulations 2018 (SI 2018/808)

Comments on secondary legislation

• (27 June 2018) HM Treasury’s approach to financial services legislation under the European Union (Withdrawal) Act
• (27 June 2018) UK Regulators publish statements following HMT's announcement:
  • Bank of England’s approach to financial services legislation under the European Union (Withdrawal) Act
  • The FCA’s role in preparing for Brexit
  • PSR’s approach to financial services legislation under the European Union (Withdrawal) Act

Clifford Chance briefings

• (6 July 2018) Onshoring EU financial services legislation under the European Union (Withdrawal) Act 2018
• (2 July 2018) The European Union (Withdrawal) Act 2018: What it does, why and how
• (30 May 2018) The European Union (Withdrawal) Bill in the House of Lords
• (October 2017) The EU (Withdrawal) Bill in October - Amendments and Delays
• (September 2017) Amendments to the European Union (Withdrawal) Bill - Key Trends
• (July 2017) Brexit: European Union (Withdrawal) Bill and the Devolution Dimension
• (July 2017) Brexit: European Union (Withdrawal) Bill Published
• (July 2017) The Repeal Bill - what to watch out for
• (March 2017) Brexit: What will the Great Repeal Bill do?

Other UK legislation to implement Brexit

The Queen's Speech in June 2017 set out that the Government will bring forward seven bills, in addition to the EU (Withdrawal) Bill, in relation to Brexit in specific policy areas.

In November 2017, the Government further announced its intention to bring forward a Withdrawal Agreement and Implementation Bill.

Acts of Parliament

Following scrutiny of the Bill by Parliament, Royal Assent has been given to the:

• Haulage Permits and Trailer Registration Act 2018
• Nuclear Safeguards Act 2018
• Sanctions and Anti-Money Laundering Act 2018​

Details of other Bills are set out below:

Agriculture Bill

• (27 February 2018) ​​HM Government White Paper: Health and Harmony: the future for food, farming and the environment in a Green Brexit​

Taxation (Cross-border Trade) Bill

Legislation tracker shows the progress of the Bill in Parliament and provides access to proposed amendments and other documents related to the passage of the Bill through Parliament 

• (23 February 2018) House of Lord Constitution Committee: Taxation (Cross-border Trade) Bill Report
• (20 November 2017) Taxation (Cross-border Trade) Bill as introduced 
• (20 November 2017) Explanatory notes on Bill
• (9 October 2017) HM Government White Paper: Customs Bill: legislating for the UK's future customs, VAT and excise regimes

Trade Bill

Legislation Tracker shows the progress of the Bill in Parliament and provides access to proposed amendments and other documents related to the passage of the Bill through Parliament

• (7 November 2017) Trade Bill as introduced
• (7 November 2017) Explanatory notes on Bill | Factsheet
• (9 October 2017) HM Government White Paper: Preparing for our future UK trade policy

Withdrawal Agreement and Implementation Bill

• (24 July 2018) White Paper: Legislating for the Withdrawal Agreement between the United Kingdom and the European Union
• (13 December 2017) Written statement (HCWS342) made by David Davis, Secretary of State for Exiting the EU, on procedures for the approval and implementation of EU exit agreements

European Commission Communication on preparing for the withdrawal

• (19 July 2018) Communication to EU institutions: Preparing for the withdrawal of the United Kingdom from the European Union on 30 March 2019 | Annex | Factsheet | Press release

Preparedness papers

Notices produced by European Commission departments addressed to stakeholders on legal and practical implications of the UK withdrawing from the EU without a transitional period, under which scenario all EU primary and secondary law would cease to apply to the UK from the withdrawal date.

Legislative proposals

(14 June 2018) Proposal for a Regulation complementing EU type-approval legislation with regard to the withdrawal of the United Kingdom from the Union | The European Commission has published a legislative proposal to address issues that may cause significant legal uncertainty for car manufacturers with UK type-approvals by modifying temporarily and in a very targeted manner the existing rules to allow concerned manufacturers to obtain new EU-27 approvals that replace their existing UK type-approved products

European Supervisory Authorities

European Banking Authority

(25 June 2018) Opinion on preparations for the withdrawal of the United Kingdom from the European Union

(12 October 2017) Opinion on issues related to the departure of the United Kingdom from the European Union | press release

(14 July 2017) Draft technical standards on authorisation of credit institutions | press release - intended to support the consistent, efficient and rigorous assessment of any applications for authorisation submitted by entities seeking to relocate in the context of Brexit

European Insurance and Occupational Pensions Authority

(28 June 2018) Opinion on disclosure of information to customers about the impact of the withdrawal of the UK from the EU

(21 December 2017) Opinion on service continuity in insurance in light of the withdrawal of the United Kingdom from the European Union

(11 July 2017) Principles on supervisory approach to relocations of undertakings from UK

European Securities and Markets Authority

(12 July 2018​) Public st​atement on t​imely submission of requests for authorisation in the context of the United Kingdom withdrawing from the European Union

(13 July 2017) Sector specific opinions on relocations from UK to EU27:

• Investment management
• Investment firms
• Secondary markets

(31 May 2017) Opinion to support supervisory convergence on financial market participant relocations to EU27 | press release

European Central Bank (ECB)

(16 May 2018) ECB article on impact of potential transition on incoming banks 

(14 February 2018) ECB publishes a newsletter on Brexit: Booking models and "empty shells", which sets out details of five key areas that the ECB and national supervisors will focus on when assessing booking model practices

(December 2017) ECB publishes notes of September 2017 ECB Legal Conference 'Shaping a new legal order for Europe: a tale of crises and opportunities' which includes sessions from Panel 3: Brexit - looking inwards and Panel 4: Brexit - looking outwards

(15 November 2017) ECB raises concerns over banks' relocation plans in an article entitled Brexit: an ECB supervision perspective in the autumn edition of its Supervision Newsletter

(12 April 2017) ECB launches relocating to the euro area page including FAQs on the relocation of banks to the euro area in the context of Brexit

Speeches and interviews

• (20 November 2017) The European banking sector - the big challenges - Speech by Sabine Lautenschläger, Member of the Executive Board of the ECB and Vice-Chair of the Supervisory Board of the ECB, on Brexit relocation planning including comments on booking models, 'dual-hatting' and use of non-EU branches
• (16 August 2017) Preparing for Brexit: "The clock is ticking" - Q&A with Sabine Lautenschläger on developments in preparatory work of banks and supervision in light of the UK leaving the EU
• (4 July 2017) Interview with the Financial Times – Remarks by Sabine Lautenschläger
• (4 May 2017) Some supervisory expectations for banks relocating to the euro area - Remarks by Sabine Lautenschläger at the technical workshop for banks considering relocation in the context of Brexit in Frankfurt.
• (2 March 2017) The European banking sector – growing together and growing apart - Speech by Sabine Lautenschläger at the LSE German Symposium.

European Commission

(24 April 2018) Speech by Valdis Dombrovskis, European Commission Vice-President, on equivalence as a potential solution for the UK after Brexit

(8 February 2018) European Commission publishes notices addressed to stakeholders on legal and practical implications of the UK withdrawing from the EU without a transitional period, under which scenario all EU primary and secondary law would cease to apply to the UK from the withdrawal date relating to financial services:

• Asset management
• Banking and payment services
• Credit rating agencies
• Insurance and reinsurance
• Markets in financial instruments
• Post-trade financial services

European Parliament

The ECON Committee launched an own-initiative procedure on a report on relationships between the EU and third countries concerning financial services regulation and supervision (the Hayes Report)

• (4 April 2018) Draft report on relationships between the EU and third countries concerning financial services regulation and supervision

HM Government

(7 March 2018) Chancellor's speech on financial services

(20 December 2017) Chancellor of the Exchequer's written statement to House of Commons on Brexit and financial services

(14 November 2017) David Davis delivers speech in City of London on the Government's approach to the Brexit negotiations and its aim to help ensure the City maintains its position as the world's leading financial centre in a way that benefits both the UK and the EU.

UK regulators

Bank of England

(28 March 2018) PRA publishes policy statements on authorisation and supervision of international banks (PS3/18) and international insurers (PS4/18) and accompanying supervisory statements for international banks (SS1/18) and international insurers (SS2/18) | Sam Woods, PRA, Dear CEO letter on firms' preparations for Brexit – update following March 2018 European Council | Sir Jon Cunliffe, Deputy Governor Financial Stability, Dear CEO letter to CCPs | Press release

(20 December 2017) PRA consults on authorisation and supervision of international banks (CP29/17) and international insurers (CP30/17) | Sam Woods, PRA, Dear CEO letter to banks, insurers and designated investment firms on planning assumptions for firms' preparations for Brexit | Sir Jon Cunliffe, Deputy Governor Financial Stability, Dear CEO letter to non-UK CCPs on UK recognition regime for CCPs post-EU withdrawal to be modelled on Article 25 EMIR | Press release

(4 October 2017) Speech by Sam Woods, PRA, on Geofinance delivered at Mansion House City Banquet

(7 April 2017) Dear CEO letter - Contingency planning for the UK’s withdrawal from the European Union

• Correspondence between PRA CEO Sam Woods and Chair of the House of Commons Treasury Committee Nicky Morgan MP on responses to Dear CEO letter
  • (24 July 2017) Nicky Morgan MP letter to Sam Woods
  • (2 August 2017) Reply from Sam Woods to Nicky Morgan on preliminary findings

Financial Conduct Authority

(8 August 2018) Dear CEO letter on cross-border booking arrangements

(24 April 2018) Speech by Andrew Bailey, Chief Executive of the FCA – Brexit: what does it mean for financial markets to be open?

(28 March 2018) FCA statement on EU withdrawal following the March European Council | Speech by Andrew Bailey, Chief Executive of the FCA, at the All Party Parliamentary Group on Wholesale Financial Services Annual Dinner

(9 March 2018) Survey for EEA inbound passported firms

(20 December 2017) FCA statement on EU withdrawal

(8 November 2016) Letter from the Chief Executive of the Financial Conduct Authority (FCA), Andrew Bailey, setting out further details on questions relating to passporting and equivalence raised by the Committee at a hearing on 20 July 2016

(20 September 2016) House of Commons Treasury Select Committee publishes letter from Chief Executive of the Financial Conduct Authority on the number of UK authorised firms that currently hold single market passports | Press release

Financial Markets Law Committee

• (12 July 2018) Letter to DExEU on issues of legal uncertainty arising for insurance business
• (12 July 2018) Issues of legal uncertainty arising in the context of the establishment of an EU insurer in another Member State

Comment from other EU national competent authorities

Germany

• (16 February 2017) BaFin launches welcome page for foreign companies | FAQs on Brexit
• (18 January 2016) BaFin establishes special contact address and form for foreign financial services firms considering moving their registered office or operations to Germany | Press release

France

• (29 June 2018) ACPR publishes short opinion on the future of cross-border contracts
• (28 July 2017) AMF welcomes the three sectoral opinions published by ESMA on 13 July 2017 to support supervisory convergence in the areas of investment management, investment firms and secondary markets in the context of the UK withdrawing from the European Union | Press release
• (28 September 2016) AMF and ACPR launch simplified licensing procedures for UK-based institutions and agility programme

Ireland

• (3 October 2016) Central Bank Director of Policy delivers speech on supervisory mandate and approach to authorisation

Spain

• (12 December 2016) Actions of the CNMV in the context of Brexit

AFME FAQs

• (February 2018) How might wholesale financial services contracts be impacted by Brexit? AFME, in conjunction with Clifford Chance, sets out Frequently Asked Questions (FAQs) which are intended to assist clients of banks in understanding how their cross-border contractual relationships could be impacted by banks’ plans to adapt to Brexit. The FAQs are availbale on the AFME website in English, French, German, Italian and Spanish.

Clifford Chance briefings

• (16 July 2018) Britain's Brexit Blueprint: The UK Government publishes its future relationship white paper
• (6 July 2018) Onshoring EU financial services legislation under the European Union (Withdrawal) Act 2018
• (28 March 2018) Insurance Brexit Update: Transition, Temporary Permissions and Contract Continuity
• (19 February 2018) Next Steps: Notice on consequences of Brexit in (Re)Insurance Sector
• (16 February 2018) Brexit: implications for contract continuity and repapering
• (20 October 2017) Post-Brexit vision for insurance: Sam Woods, Mansion House speech on geofinance
• (20 July 2017) Brexit: ESMA signals tougher stance on UK asset manager relocation to the EU
• (8 June 2017) ESMA issues opinion on supervisory approach to Brexit-related relocations from the UK
• (8 August 2016) Brexit: Passporting and equivalence implications for the UK insurance sector

A legal challenge on whether the Government can serve the Article 50 notice under the Royal prerogative or whether legislation is required was heard in the High Court in October 2016. The Court delivered its judgment in favour of the claimants on 3 November 2016, ruling that the Government does not have the power under the Crown's prerogative to give notice pursuant to Article 50. The Supreme Court heard a government appeal against the High Court's decision on 5 - 8 December 2016 and dismissed the Secretary of State’s appeal by a majority of 8-3 in a judgment handed down on 24 January 2017. 

Supreme Court Appeal: R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union and associated references

• (24 January 2017) Judgment [2017] UKSC 5 | Press summary
• The Supreme Court: Appeal webpage | Includes links to the printed cases for the parties and transcripts of proceedings
• (10 November 2016) Government Policy Paper: Grounds of Appeal to the Supreme Court of the Secretary of State for Exiting the European Union

High Court: R (Miller) -V- Secretary of State for Exiting the European Union

• (3 November 2016) High Court judgment [2016] EWHC 2768 (Admin) | Summary
• (13-18 October 2016) Hearing transcripts (uncorrected)

Clifford Chance briefings

• (24 January 2017) Legislation required to trigger Brexit
• (3 November 2016) Brexit: Parliamentary approval required for UK to leave the EU
• (26 October 2016) Brexit comment in the High Court moves the market

Implementing Brexit | Brexit insights for multinationals | Brexit and financial services | Brexit and trade | Additional insights | Reports in collaboration with Clifford Chance

Implementing Brexit

• (30 July 2018) Implementing Brexit in the UK: The EU (Withdrawal Agreement) Bill
• (16 July 2018) Britain's Brexit Blueprint: The UK Government publishes its future relationship white paper
• (6 July 2018) Onshoring EU financial services legislation under the European Union (Withdrawal) Act 2018
• (4 July 2018) Crunch time? The EU takes stock of Brexit at the June European Council
• (2 July 2018) The European Union (Withdrawal) Act 2018: What it does, why and how
• (27 June 2018) UK: Immigration Update - Brexit - What are the next steps for EU nationals in the UK
• (30 May 2018) The European Union (Withdrawal) Bill in the House of Lords
• (23 March 2018) Brexit - what does the transition agreement mean?
• (23 February 2018) The UK's approach to Brexit transition
• (8 December 2017) Brexit: sufficient progress, but to where?
• (31 October 2017) The EU (Withdrawal) Bill in October - Amendments and Delays
• (26 October 2017) A Brexit transition period - wasting asset or business necessity?
• (2 October 2017) Brexit - what next for EU nationals in the UK - September 2017
• (29 September 2017) Amendments to the European Union (Withdrawal) Bill - Key Trends
• (11 September 2017) Brexit - Citizens' Rights, Dispute Resolution and the CJEU
• (23 August 2017) Brexit: The way forward for applicable law and civil jurisdiction and judgments?
• (21 July 2017) Brexit: European Union (Withdrawal) Bill and the Devolution Dimension 
• (14 July 2017) Brexit: European Union (Withdrawal) Bill Published
• (7 July 2017) The Repeal Bill - what to watch out for
• (23 June 2017) The future UK-EU Relationship – Re-examining the EEA and other options
• (15 June 2017) Brexit: Implications from the UK general election
• (29 March 20170 Brexit: The UK gives its article 50 withdrawal notice
• (20 March 2017) Brexit: What will the Great Repeal Bill do?
• (14 March 2017) Brexit: Legislation passed allowing the UK to give notice under Article 50
• (21 February 2017) Brexit: Will the UK have to pay to leave the EU? 
• (24 January 2017) Legislation required to trigger Brexit
• (1 December 2016) Brexit: Will the UK remain in the EEA despite leaving the EU?
• (1 December 2016) Brexit - The International Economic Implications: In Conversation with Stephen King, HSBC's Senior Economic Adviser
• (3 November 2016) Brexit: Parliamentary approval required for UK to leave the EU
• (26 October 2016) Brexit comment in the High Court moves the market
• (15 September 2016) Brexit: The constitutional endgame and the need to act now
• (24 August 2016) After Brexit
• (1 August 2016) The landscape after Brexit
• (28 June 2016) How to leave the EU: the key article 50 issues and UK constitutional questions
• (24 June 2016) The UK vote to leave the EU - immediate issues and implications  

Brexit insights for multinationals

• (16 July 2018) Britain's Brexit Blueprint: The UK Government publishes its future relationship white paper
• (27 June 2018) UK: Immigration Update - Brexit - What are the next steps for EU nationals in the UK
• (23 March 2018) Brexit - what does the transition agreement mean?
• (9 November 2017) Emissions trading: EU And UK seek to mitigate Brexit 'cliff edge'
• (31 October 2017) The EU (Withdrawal) Bill in October - Amendments and Delays
• (26 October 2017) A Brexit transition period - wasting asset or business necessity?
• (11 September 2017) Brexit - Citizens' Rights, Dispute Resolution and the CJEU
• (2 March 2017) The impact of Trump and Brexit on global trade, global businesses, and their supply chains
• (13 February 2017) The future of trade for the UK – a guide for businesses | Related videos
• (19 January 2017) The UK's negotiating objectives for exiting the EU
• (1 December 2016) Brexit - The International Economic Implications: In Conversation with Stephen King, HSBC's Senior Economic Adviser
• (25 November 2016) Brexit - Trade and Treaties
• (16 September 2016) Brexit: The way forward for multinationals
• (24 August 2016) Brexit: What does it mean for multinationals?

Brexit and financial services

• (16 July 2018) Britain's Brexit Blueprint: The UK Government publishes its future relationship white paper
• (6 July 2018) Onshoring EU financial services legislation under the European Union (Withdrawal) Act 2018
• (28 March 2018) Insurance Brexit Update: Transition, Temporary Permissions and Contract Continuity
• (23 March 2018) Brexit - what does the transition agreement mean?
• (19 February 2018) Next Steps: Notice on consequences of Brexit in (Re)Insurance Sector
• (16 February 2018) Brexit: implications for contract continuity and repapering
• (9 November 2017) Emissions trading: EU And UK seek to mitigate Brexit 'cliff edge'
• (20 October 2017) Post-Brexit vision for insurance: Sam Woods, Mansion House speech on geofinance
• (20 July 2017) Brexit: ESMA signals tougher stance on UK asset manager relocation to the EU
• (28 June 2017) Europe holds the cards on clearing yet both sides can profit
• (8 June 2017) ESMA issues opinion on supervisory approach to Brexit-related relocations from the UK
• (22 August 2016) The regulatory landscape of Brexit for CLOs: where to from here?
• (8 August 2016) Brexit: Passporting and equivalence implications for the UK insurance sector
• (27 July 2016) Brexit – Implications for loan documentation: keep calm and carry on
• (12 July 2016) Brexit – assessing the impact on asset managers
• (11 July 2016) Brexit: What next for the UK insurance sector?
• (10 July 2016) Brexit: Corporate Treasury Update
• (30 June 2016) The potential impact of Brexit on cross-border aircraft financings
• (June 2016) Corporate Treasury Update – Brexit: Practical Questions For Corporate Treasurers  
• (May 2016) Brexit issues for directors of private equity portfolio companies
• (March 2016) Brexit - Insurance Sector Analysis
• (March 2016) The UK referendum – challenges for Europe’s capital markets: a legal and regulatory assessment

Brexit and trade

• (16 July 2018) Britain's Brexit Blueprint: The UK Government publishes its future relationship white paper
• (23 June 2017) The future UK-EU relationship: Re-examining the EEA and other options
• (12 June 2017) Brexit, Trump and Other Shocks to the System: In Conversation with Economist George Magnus
• (19 May 2017) What does the Singapore FTA decision mean for the EU's FTAs and Brexit?
• (2 March 2017) The impact of Trump and Brexit on global trade, global businesses, and their supply chains
• (13 February 2017) The future of trade for the UK – a guide for businesses | Related videos
• (1 December 2016) Brexit: Will the UK remain in the EEA despite leaving the EU?
• (25 November 2016) Brexit - Trade and Treaties
• (24 October 2016) The UK’s future trade relationships 
• (16 September 2016) Brexit: The way forward for multinationals

Additional insights

Antitrust

• (May 2016) Brexit: implications for merger control | This article was first published on the Practical Law website

Data protection

• (28 June 2016) Brexit and data protection: keep calm and carry on?

Employment

• (29 March 2017) Brexit employment issues: an update
• (4 July 2016) Brexit - What now for EU nationals in the UK?
• (24 June 2016) The employment law implications of Brexit

Environment and Climate Change

• (24 July 2018) REACH and the chemicals regime in the UK after Brexit
• (29 June 2016) Brexit - What next for Environmental & Climate Change Law?
• (April 2016) Brexit - what will happen to environmental and climate change law?

Intellectual property

• (May 2016) Brexit: implications for EU trade mark holders | This article was first published on the Practical Law website  

Litigation

• (27 June 2016) Brexit and jurisdiction clauses: Choice of English law following the EU referendum
• (27 June 2016) Close-outs – a recap following the UK's Brexit vote

Pensions

• (22 July 2016) Brexit: What next for UK pensions?
• (24 June 2016) The pensions law implications of Brexit

Planning

• (28 June 2016) Brexit – what next for planning?

Projects

• (28 July 2016) Brexit and UK PFI/PPP infrastructure projects 
• (12 July 2016) Brexit and the Energy and Resources sector

Restructuring and Insolvency

• (1 July 2016) Brexit – what does it mean for the restructuring and insolvency market?

Tax

• (24 June 2016) The tax impact of Brexit: what steps should UK and EU businesses take now?

Other

• (5 January 2017) Brexit – Dutch bonus cap rules
• (June 2016) Brexit – Hospitality Sector Analysis

Reports in collaboration with Clifford Chance

• (July 2018) Contractual continuity in OTC derivatives – Challenges with transfers | Clifford Chance assisted ISDA and AFME in the preparation of this paper examining the challenges faced by UK and EU firms and their clients seeking to transfer their legacy cross-border OTC derivative contracts to an appropriately licensed affiliate in advance of Brexit.  The report is available on the Clifford Chance Brexit Hub.
• (March 2018) The "red tape" cost of Brexit: Research carried out by Clifford Chance and Oliver Wyman on new tariff and non-tariff barriers that could be imposed on trade between the UK and EU27. The report is available on the Clifford Chance Brexit Hub
• (February 2018) How might wholesale financial services contracts be impacted by Brexit? AFME, in conjunction with Clifford Chance, sets out Frequently Asked Questions (FAQs), which are intended to assist clients of banks in understanding how their cross-border contractual relationships could be impacted by banks’ plans to adapt to Brexit.  The FAQs are available on the AFME website.
• (November 2017) 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 in a report developed in collaboration with Clifford Chance and Global Counsel LLP.  The report is available on the Clifford Chance website.
• (July 2017) Bridging to Brexit - Insights from European SME's, Corporates and Investors: The Association for Financial Markets in Europe (AFME) commissioned a report from The Boston Consulting Group with support from Clifford Chance, assessing the impact of Brexit on SMEs, large corporates and investors.  The report is available on the Clifford Chance website. 
• (March 2017) Time to adapt: Achieving an orderly transition for banking: UK Finance prepared two reports with support from Clifford Chance and Global Counsel LLP on 'Achieving an orderly transition for banking' (November 2016) and an EU Customer perspective (March 2017). The reports are available on the UK Finance website.
• (February 2017) The future of trade for the UK – a guide for businesses: Clifford Chance and the CBI worked together to produce a report which will act as a detailed primer for businesses faced with the prospect of a new global landscape of trade between the UK and the rest of the world. The report is available on the Clifford Chance Brexit Hub.
• (August 2016) UK exit from the EU: An orderly transition for banking: The BBA prepared a report with support from Clifford Chance and Global Counsel LLP on transitional arrangements. The reports are available on the UK Finance website.
• (April 2014) A legal assessment of the UK's relationship with the EU: A study by Clifford Chance for TheCityUK summarising the legal implications of different EU membership scenarios for the UK from a financial services perspective.  The report is available on TheCityUK website.

Presentation slides and videos

• (February 2018) Brexit – evolving shape of transitional arrangements
• (January 2018) Brexit – the implementation and repapering challenge
• (July 2017) How will Brexit impact end users' access to wholesale banking services? | Chris Bates 
• (June 2017) How will Brexit affect the EU's capital markets? | Chris Bates
• (May 2017) The Belgian legal framework for financial services | Lounia Czupper
• (April 2017) Perspectives - Brexit: the state of the negotiations, and the likely outcomes for business (video)  | Caroline Meinertz, Dan Neidle, Michel Petite and Phillip Souta
• (March 2017) Brexit, Trump and other shocks to the system (video)  | George Magnus, Economic adviser and Associate at China Centre, Oxford University
• (December 2016) Perspectives - Brexit and the continuing development of European restructuring and insolvency law and practice (video) | John MacLennan, Gilles Podeur, Tomas Richter and Gabrielle Ruiz 
• (December 2016) Perspectives - Implementing Brexit (video) | Marc Benzler, Caroline Meinertz, Dan Neidle, Michel Petite and Phillip Souta
• (November 2016) Brexit – will the EU take a hard line or keep Britain close? (video) | Malcolm Sweeting, Lord Kerr of Kinlochard, Charles Grant (Centre for European Reform)
• (November 2016) Perspectives - Brexit – the international economic implications (video) | Stephen King (HSBC), Kate Gibbons 
• (October 2016) Perspectives - Understanding the impact of Brexit on energy and infrastructure investments (video) | Clare Burgess, Michael Coxall, Jessica Gladstone, Jenine Hulsmann 
• (September 2016) Perspectives - Brexit – trade and treaties (video) | Jim Rollo (University of Sussex), Alice Darling, Jessica Gladstone, Romesh Weeramantry
• (September 2016) Perspectives - Brexit and the UK constitution (video) | Colm O'Cinneide (University College London), Simon James, Phillip Souta, Deborah Zandstra
• (September 2016) The UK exit from the EU: a financial services perspective | Chris Bates
• (July 2016) Brexit: update and implications for US hedge fund managers (video) | Jiří Król and Nick O’Neill 
• (June 2016) The landscape after Brexit (video) | Michel Petite, Jessica Gladstone and Phillip Souta with Lord Jay of Ewelme GCMG
• (June 2016) UK/EU referendum - issues and implications | Matt Fairclough, Francis Edwards, Dauwood Malik

Insights on Brexit – call recordings

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• (November 2017) Brexit and the sell-side:  its impact on asset managers
• (October 2017) The implications for your business of a Brexit 'transition period'
• (April 2017) Brexit issues for OTC derivatives lawyers post Article 50
• (March 2017) Article 50 – what next for Asset Managers
• (January 2017) Transferring portfolios of OTC derivatives in the context of bank group restructurings​
• Call series archive
  

Brexit impact assessment tool brochure - this document provides information on our 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.

EU Taskforce on Article 50 negotiations webpage

UK Government Brexit policy webpage

Other materials

(7 August 2018) Financial Markets Law Committee (FMLC) - UK withdrawal from the EU: Issues of legal uncertainty arising in the context of the robustness of financial contracts

(8 March 2018) House of Commons Exiting the EU Committee - EU Exit Analysis: Cross Whitehall Briefing

(7 March 2018) House of Commons International Trade Committee - Continuing application of EU trade agreements after Brexit

(27 January 2018) House of Lords EU Financial Sub-Committee - Brexit: the future of financial regulation and supervision

(December 2017) Financial Markets Law Committee (FMLC) - Issues of Legal Uncertainty Arising in the Context of the U.K.’s Withdrawal from the E.U.—the Application and Impact of World Trade Organization Rules on Financial Services | Examines the future of the UK’s cross-border trade with the EU and the potential impact of the WTO’s rules

(August 2017) Financial Markets Law Committee (FMLC) – The impact on cross-border insolvency proceedings | Identifies and considers various issues of legal uncertainty related to the potential loss of mutual and reciprocal recognition provisions written into the Recast EU Insolvency Regulation and other complexities relating to cross-border corporate insolvency

(July 2017) Financial Markets Law Committee (FMLC) - The provision and application of third country regimes in EU legislation | Identifies and considers various issues of legal uncertainty related to the future classification of the UK as a third country with regards to EU law

(December 2016) EU Parliament Directorate-General for Internal Policies - Brexit: the United Kingdom and EU Financial Services | Paper discusses role of London as a global financial centre and role of passporting in various banking, asset management, insurance and market infrastructure functions.

(December 2016) Financial Markets Law Committee (FMLC) - Paper on issues of legal uncertainty arising in the context of the withdrawal of the UK from the EU | Discusses issues of legal uncertainty likely to arise in the context of cross border commercial litigation in consequence of Brexit, specifically the application of English law, the jurisdiction of English courts and the enforcement of English judgments.