Brexit and commercial law

An article on the effects of Brexit of particular interest to commercial lawyers, this time from a fairly clear pro-EU standpoint. Unfortunately only in German; but for those who read the language a fairly full abstract is available for free here. The full citation of the article is J.Basedow, Brexit und das Privat- und Wirtschaftsrecht [Brexit and private and business law] (2016) 24 Zeitschrift für Europäisches Privatrecht 567.

The points of interest to commercial lawyers in the UK are these (in summary):

(1) Once the UK is no longer a member State, any duty to implement EU law in future obviously falls away. The question of the continuing status of existing EU secondary law is a matter for UK law.

(2) Because Directives generally have no direct effect, but rely on local legislation to give them effect in member States, SIs and other legislation implementing them in the UK will remain effective indefinitely unless and until repealed. Thus in general nothing will happen to the acquis on consumer protection, workers’ rights, unfair commercial practices, company law and IP.

(3) Regulations, generally directly effective, will be problematical, if not enacted in the UK. There may well be concern that if and when the UK quits, a company with solely Societas Europaea status may end up high and dry. So also with Community trademarks.

(4) Treaties concluded by the EU on the UK’s behalf also cause problems. There’s probably no difficulty with the Montreal Convention or the Cape Town Convention, which the UK also ratified on its own behalf. But the Hague Convention on jurisdiction agreements of 2005, ratified solely by the EU, is a different matter.

(5) In so far as the UK is a third state, a number of important rights are called in question within the remaining member states of the EU (in the UK this is obviously a matter for domestic legislation, but that is by-the-by). Examples: rights of overflight under Regulation 2408/92 (Easyjet watch out!), the Services Directive 2006 and the right to offer financial and insurance services (one-third of UK financial services being sold within the EU). And something will have to be done about civil jurisdiction and judgments. Brussels I will cease to require recognition of UK judgments on the Continent: nor, in its present form, can the gap be filled by Lugano.

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