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Brexit: A legal perspective

10 May 2016

On 23 June 2016, the UK population will hold an in-or-out referendum on the UK’s future EU involvement From a legal perspective, should the UK decide to leave the EU, for better or worse there would be a need to revise many existing laws, especially where UK legislation is tied to EU law.

Corporate & Commercial | Mark Lucas

Brexit will create uncertainty to how contracts are interpreted, particularly commercial contracts. The UK government will need to legislate very quickly so that UK businesses have certainty over the following issues:

  • Which laws apply to a contract - currently, if the parties to a cross- border contract have not expressly chosen a governing law, the law that applies is determined by two EU laws known as Rome I and Rome II. The UK will have to decide whether to continue to allow that regime to apply or not.
  • Will any change in law apply retrospectively – i.e. how do you interpret a contract entered into pre Brexit after Brexit?

Where “English law” is chosen or is referred to in a contract, what exactly will that mean post-Brexit? English law as it was amended by EU law pre-Brexit? English law as it sits post-Brexit? Whatever the outcome of the vote, Brexit would take some time to arrange. In the run-up to any leaving date all businesses will need to take advice on their existing contracts and arrange contracts which are to continue after the leaving date such that they include effective choice-of-law provisions.

Employment | David Ludlow

There has been a lot of speculation as to whether Brexit would result in wholesale, or wide ranging changes to UK Employment Law.

The answer is probably not. It should be remembered that many of the established employment laws do not derive from EU law at all and are purely of domestic origin.

For example, unfair dismissal rights have their origin in the relatively early industrial relations legislation and so have equal pay, disability discrimination legislation, ‘Living wage’ and maternity leave rights.

"many of the established employment laws do not derive from EU law at all and are purely of domestic origin."

On the other hand a number of other discrimination laws, rights in relation to consultation on large scale redundancies, TUPE, family leave rights, Working Time Legislation and Agency workers’ rights to name but a few are employment laws that do derive from EU law and are therefore likely to be impacted.

Family | Judith Ball

For separating couples an exit from the EU could well impact proceedings. Firstly, it may become much harder for Europeans to satisfy the criteria for jurisdiction in this country. London is often billed as the divorce capital of the world and is frequently seen as a more generous jurisdiction (to the financially weaker party) than a number of European countries. The second significant impact is likely to be on the enforcement of maintenance orders. For example, at present a maintenance order made in France can be enforced here without further investigation. Post Brexit this ability is likely to be lost. And finally we could lose the capability of easily transferring cases concerning the control or welfare of children within the EU if it is deemed to be in the child’s best interests to do so.

Dispute Resolution | David Foster

Paramount for dispute resolution lawyers is that England and Wales remains the jurisdiction of choice internationally, our Courts having acquired a strong reputation of fairness and impartiality. If Brexit were to increase Parliamentary control, the UK could be perceived internationally as even more stable, especially if the UK Government puts more money into even better court systems. Brexit might therefore have a positive impact for litigation lawyers. The truth is that no one knows the legal effect of Brexit because we do not know the shape of any trading deals that will be concluded. Separate trade deals with individual member states of the EU will probably need unanimous approval by all the member states of the EU, which will mean politics will affect where matters finally settle.

For further advice on the above topics, please call us on 01483 543210 or alternatively email enquiries@barlowrobbins.com