Competition law working group publishes Brexit “issues paper”

Posted on 31 Oct 2016 by Brick Court

Maya Lester QC

The Brexit Competition Law Working Group (list of members here) has published an ‘issues paper’ here which is intended to foster public debate and inform government policy on the implications of Brexit for competition law and policy. The paper explains the immediate likely effects of the UK leaving the EU on mergers and antitrust rules that must be considered in the short term, and longer term issues, including in relation to the private enforcement of competition law.

The group welcomes contributions by 30 November 2016 from all engaged in UK competition law and policy, including legal practitioners, consumer groups, business organisations, economic consultants, regulators and academics.  It will hold roundtable discussions (provisional dates 23 November, 5 December and 12 December 2016). It will submit a final report to Government and publish it early in 2017.

Belfast High Court rejects Northern Irish Article 50 judicial review

Posted on 28 Oct 2016 by Brick Court

Maya Lester QC

The High Court in Belfast today dismissed judicial review challenges to the way the Government intends to trigger Article 50 of the TEU. A link to the judgment of Mr Justice Maguire is here and a summary here.

This case is separate from the Article 50 judicial review proceedings in the Divisional Court in London in which judgment is currently awaited. The Belfast court stayed consideration of issues in the Northern Irish case which overlap with the Divisional Court proceedings. The main issues in the Northern Irish case include whether provisions of Northern Irish constitutional law preclude the use of the royal prerogative to trigger Article 50, whether the Government has failed to comply with provisions of the Northern Ireland Act.

Brexit: Jurisdiction, Enforcement and Conflict of Laws: A case of “Fog in Channel, Continent cut off?”

Posted on 19 Oct 2016 by Brick Court

Sophie Shaw

On Monday 17th October, Brick Court Chambers hosted the second in its series of panel discussions on the legal implications of Brexit. The event was chaired by Helen Davies QC.

Julian Makin, the global co-head of mining and metals at Freshfields Bruckhaus Deringer opened the presentations. He discussed the global strength and importance of the UK legal services market due to the certainty, clarity and predictability of the law and the quality of the UK lawyers and judiciary. Post-Brexit, the key issue will be retaining this certainty. Matters that will need to be addressed include the operation of the ‘Great Repeal Act’, the power to amend and repeal EU law once it has been converted into English law and the status of CJEU decisions.

Sir Richard Aikens considered the impact of Brexit on the Brussels Regulation regime. Sir Richard observed that on the UK’s withdrawal from the EU, the Brussels I Recast Regulation and Lugano Convention 2007 will cease to have any effect. However, the Brussels Convention still has the force of law in the UK, and would arguably bind Member States who joined the EU after the Brussels I Regulation. The best solution going forwards would be for the UK to enter a bilateral treaty with the EU allowing the UK to participate in the Brussels Regulation regime. This would, however, give rise to both practical and political difficulties.

Oliver Jones addressed the possibility of a resurgence for anti-suit injunctions on Brexit. He observed that in the unlikely scenario that the default position on Brexit was a return to the common law, the anti-suit injunction would return with full force.  Noting, however, that the restrictive EU case law arose under the Brussels Convention, the result of Brexit may be that the UK remains subject to the EU jurisdictional regime with none of the benefits negotiated in the Recast Regulation. Agreeing with Sir Richard, he agreed that the best outcome would be for the UK to remain subject to the Brussels I Recast Regulation.

Ben Woolgar considered the enforcement of judgments. Having outlined the current system, he noted that it works well because it is procedurally simple, covers a wide range of decisions, is relatively quick and also has a high degree of certainty due to the narrow scope of the defences. The best option on Brexit would therefore be to retain the Brussels I Recast Regulation if the necessary reciprocity can be agreed. Considering the other options, he observed that the Lugano and Brussels Conventions would require a judgment to be recognised in the other state prior to enforcement. Enforcement under the Hague Choice of Courts Convention or the common law is significantly more difficult.

Finally, Andrew Henshaw QC discussed two topics.  First, the current EU Evidence and Service Regulations compared to the default Brexit position.  In the absence of these Regulations, the UK would fall back on the relevant Hague Conventions and other bilateral arrangements. However, problems would include the fact that not all EU Member States are parties, the processes are significantly slower, and the scope for participation in the taking of evidence would be reduced. Secondly, Andrew discussed precautions parties can take in relation to all the topics covered, and where intervention by the UK Government will be essential, focussing on (a) jurisdiction and the “Italian torpedo” problem under the Brussels Convention, (b) severability of jurisdiction clauses, (c) arbitration and (d) enforcement of judgments.

The presentations were followed by a Q&A session.

Please click here to view the notes and a recording of the event.

Five members of Brick Court instructed in landmark Article 50 case

Posted on 14 Oct 2016 by Brick Court

Five members of Chambers have been instructed in the landmark constitutional case R (Miller) v Secretary of State for Exiting the European Union. The case arises out of the Prime Minister’s announcement that the government will give notification to leave the EU without seeking the consent of Parliament.

The claimants contend that it would be unconstitutional for the government to trigger the withdrawal process under Article 50 because such a decision would fall outside the scope of its prerogative powers. The case raises a number of fundamental constitutional issues, including the question of whether the executive may override EU law rights which have been incorporated into domestic law by Parliament under the European Communities Act 1972.

The proceedings have attracted a high level of media interest. For example:

http://www.bbc.co.uk/news/uk-politics-37639307

https://www.theguardian.com/politics/2016/oct/13/court-case-battle-looms-over-brexit-legality-article-50

http://www.bbc.co.uk/news/uk-scotland-scotland-politics-37628414

The first day of the hearing took place on Thursday 13^th October and the second day will take place on Monday 17^th October. A transcript of the first day’s hearing has been published here.

Tim Johnston appears for ‘The People’s Challenge’, instructed by Bindmans LLP.

Martin Chamberlain QC and Emily MacKenzie are instructed by by Baker & McKenzie on behalf of the Scottish government.

Richard Gordon QC and Tom Pascoe are instructed by the Welsh government.

The Legal Implications of Brexit: International Trade

Posted on 06 Oct 2016 by Brick Court

Sophie Shaw

On Tuesday 4th October, Brick Court Chambers hosted the first of its panel discussions on the legal implications of Brexit. All three panellists have substantial experience of trade negotiations, the EU and the WTO. The event was chaired by David Anderson QC, who opened the discussion by reference to Liam Fox’s recent statement that Britain will ‘lead the charge once more’ towards a world of free trade.

Roderick Abbott spoke first about the impact of Brexit on the UK economy, focusing on trade and investment. Mr Abbott observed that although uncertainty is the only visible effect on the UK economy at present, there will be an impact when the Article 50 negotiations are complete. Mr Abbott also considered what leaving the EU will mean in practice, and what will need to be replaced in the field of trade and investment. A new trade agreement with the EU will be essential, as will trade agreements with third countries. The UK’s role in the WTO will also need to be altered as the UK will no longer operate through EU commitments. In the absence of a customs union, a customs tariff will also be required.

Alastair Sutton opened his remarks by observing that it will not be possible for the UK both to stay in the single market and to control its borders. Access to the single market will therefore require negotiation. The remaining 27 Member States are looking at what they can achieve from Brexit, each with their own sectoral and micro-economic interests, and the capacity for individual states to disrupt the negotiation process will be huge. Mr Sutton also observed that the UK has resolved to exclude itself from the fora where decisions made, despite the fact the UK has driven the direction of trade policy in the past. The UK will need to adhere to EU technical standards in order to trade with Europe but will no longer have any role in setting such standards. Citing TTIP as an example, Mr Sutton considered that the size of the EU bloc gives it considerable bargaining power. The UK should not be expecting any favours.

Finally, Andrew Hood spoke from his recent experience at the heart of Government about some of the practical challenges faced by the UK Government in moving towards a free trade model. Referring to the length and technicality of the EU-Canada trade agreement, and observing that the UK has not negotiated a trade agreement for 43 years, Mr Hood considered that the task ahead is ‘mammoth’. The Civil Service must ‘tool up’, although this must now be done against the backdrop of huge changes to the Government’s departmental structure. Mr Hood also noted the commercial concerns surrounding the potential gap between Brexit and the completion of new trade arrangements. He called on the Government to provide guidance in this regard to reduce the damaging commercial uncertainty.

A Q&A session followed the presentations. Questions concerned the opportunities arising from Brexit, the UK’s position in the WTO, the concurrency of exit and trade negotiations, and the consequences of failing to complete negotiations within two years.

The next panel discussion on the legal implications of Brexit will consider Jurisdiction and Choice of Law. It will be held on Monday 17 October 2016 at 6pm at The Law Society, 113 Chancery Lane, London, WC2A 1PL.

Announcement on A50 trigger and repeal of ECA 1972

Posted on 02 Oct 2016 by Brick Court