Following the UK's referendum vote to leave the EU, businesses face years of uncertainty over the post-Brexit relationship between the UK and EU. While Brexit may create opportunities for some, it poses challenges for business planning. Despite this uncertainty, businesses can take practical steps to address Brexit's potential impacts on commercial contracts. These include reviewing pricing assumptions, compliance obligations, change control procedures, force majeure definitions, termination provisions, and data protection clauses in light of Brexit-related risks. Seeking legal advice can help businesses understand how to future-proof new contracts and risk-assess existing contractual portfolios in this changing environment.
Unity & Inclusion NYC: An Introduction to the GDPR and Terms to Avoid in Fina...500 Startups
An Introduction to the GDPR and Terms to Avoid in Financing
Aliya Sanders, Associate, Gunderson
Hozefa Botee, Partner, Gunderson
Randall Clark, Startup Lawyer, Gunderson
José María Dutilh Managing Partner, LeQuid, Social Enterprise and Business La...José María Dutilh Carvajal
Successful negotiations
Identifying and assessing the potential for risks, working to reduce them and being able to anticipate what could happen if things go wrong.
Infographic : What's going to change with the GDPR (2018)Kwanko
The new GDPR regulations will come into force on 25 May 2018 and Kwanko has summarized everything you need to know about these changes to guide you through this process.
See more on Kwanko Blog : https://blog.kwanko.com
Russell Kennedy Special Counsel, David Littlejohn, takes us through the development of Australian consumer legislation, including:
- Trade Practices Act 1974
- Competition and Consumer Act 2010
- Schedule 2: Australian Consumer Law
This presentation by Catarina MARVÃO, Assistant Lecturer, Department of Accounting and Finance, Dublin Institute of Technology, was made during the discussion “Challenges and co-ordination of leniency programmes” held at the 127th meeting of the OECD Working Party No. 3 on Co-operation and Enforcement on 5 June 2018. More papers and presentations on the topic can be found out at oe.cd/2gt.
New Laws Impacting Judicial Proceedings and ConsumersKatieDavis103
Over 200 new laws went inot effect on January 1st. Some of them directly impact judicial proceedings, while others are geared toward increasing consumer safety. Here are a few of the most notable new laws affecting courts and consumers.
This paper estimates the impact of competition policy on total factor productivity growth for 22 industries in twelve OECD countries over 1995 to 2005. We find a positive and significant effect of competition policy as measured by created indexes. We provide results based on instrumental variables estimators and heterogeneous effects to support the causal nature of the established link. The effect is particularly strong for specific aspects of competition policy related to its institutional setup and antitrust activities. It is also strengthened by good legal systems, suggesting complementarities between competition policy and the efficiency of law enforcement institutions.
Unity & Inclusion NYC: An Introduction to the GDPR and Terms to Avoid in Fina...500 Startups
An Introduction to the GDPR and Terms to Avoid in Financing
Aliya Sanders, Associate, Gunderson
Hozefa Botee, Partner, Gunderson
Randall Clark, Startup Lawyer, Gunderson
José María Dutilh Managing Partner, LeQuid, Social Enterprise and Business La...José María Dutilh Carvajal
Successful negotiations
Identifying and assessing the potential for risks, working to reduce them and being able to anticipate what could happen if things go wrong.
Infographic : What's going to change with the GDPR (2018)Kwanko
The new GDPR regulations will come into force on 25 May 2018 and Kwanko has summarized everything you need to know about these changes to guide you through this process.
See more on Kwanko Blog : https://blog.kwanko.com
Russell Kennedy Special Counsel, David Littlejohn, takes us through the development of Australian consumer legislation, including:
- Trade Practices Act 1974
- Competition and Consumer Act 2010
- Schedule 2: Australian Consumer Law
This presentation by Catarina MARVÃO, Assistant Lecturer, Department of Accounting and Finance, Dublin Institute of Technology, was made during the discussion “Challenges and co-ordination of leniency programmes” held at the 127th meeting of the OECD Working Party No. 3 on Co-operation and Enforcement on 5 June 2018. More papers and presentations on the topic can be found out at oe.cd/2gt.
New Laws Impacting Judicial Proceedings and ConsumersKatieDavis103
Over 200 new laws went inot effect on January 1st. Some of them directly impact judicial proceedings, while others are geared toward increasing consumer safety. Here are a few of the most notable new laws affecting courts and consumers.
This paper estimates the impact of competition policy on total factor productivity growth for 22 industries in twelve OECD countries over 1995 to 2005. We find a positive and significant effect of competition policy as measured by created indexes. We provide results based on instrumental variables estimators and heterogeneous effects to support the causal nature of the established link. The effect is particularly strong for specific aspects of competition policy related to its institutional setup and antitrust activities. It is also strengthened by good legal systems, suggesting complementarities between competition policy and the efficiency of law enforcement institutions.
In our first edition of 2014, we:
• continue with our series on the new public procurement directive, this month analysing subcontracting under the new directive
• include articles on conflicts of interest in the shared services context and the new state aid de minimis regulation
• Anja Beriro discusses what is on the legal horizon for 2014.
My presentation about an European Court of Justice Case about thin capitalization in UK. After analyzing the facts and the fiscal and economic aspects of the operation, the presentation gives the point of view of both the UK Government and the ECJ about the fiscal regime of Thin Cap in UK. The decision of the Court is against UK Thin Cap, since the fiscal regime represents a restriction in the freedom of establishment for non-UK resident parent companies deciding where to establish a subsidiary.
With an ever-changing political scene and limited time left to conclude the negotiations for the United Kingdom’s (UK) exit from the European Union (EU), attention is now beginning to turn to the potential consequences of Brexit. This paper discusses the issues that insurers face and considers the interplay between insurers’ contractual obligation to continue to service policies (including paying claims) versus the practical impact that local regulation might have on their ability to do so.
Brexit : some practical considerations for investment arbitration, internatio...Momoh Kadiri, MCIArb.,QDR
In this article, we consider some of the possible areas and impact Brexit could have, particularly in relation to investment arbitration, international trade and cross-border contracts. We also emphasise the importance of proactive guidance in dealing with some of the challenges to come.
As Brexit negotiations continue, directors need to be mindful of a number of issues potentially facing their companies from a Corporate and Company law perspective. Here is a helpful checklist of issues and Matheson recommendations to guide them in this process.
As Brexit negotiations continue, directors need to be mindful of a number of issues potentially facing their companies from a Corporate and Company law perspective. Here is a helpful checklist of issues and Matheson recommendations to guide them in this process.
In our comment letter, we recommend that the Commission consider making the periodic review required by the Regulatory Flexibility Act more transparent and more robust to encourage broader and meaningful participation by constituents. We believe an effective post-implementation review process should determine whether a rule has accomplished its objective, evaluate the compliance cost for all issuers and the benefits for investors, and provide feedback to inform and improve the rulemaking process.
http://www.ey.com/Publication/vwLUAssetsAL/CommentLetter_00260-171US_FlexibilityAct_19January2017/$FILE/CommentLetter_00260-171US_FlexibilityAct_19January2017.pdf
'Brexit' –VAT & Customs implications for international supply chainsAlex Baulf
Now that the United Kingdom has voted to leave the European Union (EU), it is clear that the exit will require a fundamental review of how indirect tax (including VAT & customs duty) will operate going forward. We set out Grant Thornton's thinking about what the post-Brexit world might look like for global supply chains. Much will depend on whether we agree a 'Soft Brexit' (retaining some level of access to the Single Market) or a 'Hard Brexit' (No favoured access).
Similar to Brexit - the impact on contracts - Oct 2016 (20)
'Brexit' –VAT & Customs implications for international supply chains
Brexit - the impact on contracts - Oct 2016
1. www.traverssmith.com
Brexit: the impact on contracts
Following the referendum on 23 June, the nature of the post-Brexit UK/EU
relationship remains unclear, with several years of uncertainty before the exit
process is complete. Although Brexit may ultimately present opportunities for
some businesses, there can be little doubt that this has become a more challenging
time for businesses to plan ahead.
Despite this uncertainty, there are still practical steps that businesses can and should be taking now in relation
to their commercial contracts. Although Brexit is unlikely to fundamentally change the laws that underpin
English contracts or the way in which parties contract, it seems probable that there will still be material
impacts. Indeed, the wider effects of Brexit on, for example, tariff-free trade, import duties and exchange rates
have the potential to affect the fundamental commercial bargain that the parties have agreed. Businesses need
to be aware of these impacts so that they can risk-assess their current contractual portfolio and, where possible,
"future-proof" new contracts against the adverse effects of Brexit.
The table below outlines some of these issues. If you have any specific concerns about the impact of Brexit on
your contracts, you should seek legal advice.
Contractual provision Possible Brexit impacts What can/should you be doing now?
CONTRACT PRICING
Fees and charges
Price adjustments
VAT
Imposition of import quotas and
tariffs
Currency value and exchange rate
fluctuations
Inflationary pressures on raw
materials
Increased costs of export and
distribution
Changes in tax law
Use flexible pricing models where possible
For fixed pricing, clearly set out:
o assumptions on which the charges
are based
o period for the charges will apply
Require the parties to renegotiate if pricing
assumptions cease to apply
Include mandatory change control
mechanisms to allow contract pricing to be
varied as a result of changes in law (see
further below)
2. 2
Contractual provision Possible Brexit impacts What can/should you be doing now?
COMPLIANCE OBLIGATIONS
Compliance with laws
Duty to maintain required
consents, licences, and
authorisations
Repeal of laws which implement EU
legislation and the introduction of
new legislation on the same subject
matter
EU regulations and Treaty provisions
ceasing to have direct effect in the
UK and the introduction of new
legislation on the same subject
matter
Draft 'Applicable Laws' definitions carefully
Where referring to competent or
regulatory authorities (e.g. governmental
bodies, regulators, courts etc), consider if
this will capture EU bodies which may
cease to be relevant and/or will fail to
capture bodies likely to take over
responsibility for the same matters post-
Brexit
CHANGE CONTROL PROCEDURES
Mandatory changes
Voluntary/consensual
changes
Current contractual obligations
ceasing to be lawful/enforceable
Increased costs of compliance with
contractual obligations as a result of
changes in law following Brexit
Include change procedures to enable:
o mandatory changes to be made to
ensure ongoing compliance with
laws
o pricing adjustments to allow the
costs of implementing and
complying with any change to be
passed through (in full or pro rata
with other customers affected).
RELIEF EVENTS
Force majeure events
Material Adverse Change or
'MAC' clauses
It is unlikely that:
'standard' force majeure definitions
will capture Brexit unless this is
expressly stated
arguments that a contract has been
frustrated as a result of Brexit will
succeed
Consider whether Brexit (or any of the
circumstances around it) need to be
included in the force majeure definition –
or should be expressly excluded
If inclusion of Brexit wording in force
majeure provisions is too contentious, it
may be possible to address your concerns
through mandatory change provisions (see
above) and/or a MAC clause.
TERMINATION / SUSPENSION
EVENTS
Cost of performance
Step-in clauses
Unpredictable market conditions and
volatility
Tougher economic outlook
Increased risk of insolvency for some
businesses
Draft the insolvency termination triggers
carefully to allow you to take pre-emptive
action if necessary
Seek step-in rights if you have concerns
about a counterparty's ability to perform
Link termination/suspension rights to
performance indicators, e.g. service
levels/KPIs
3. The information in this document is intended to be of a general nature and is not a substitute for detailed legal advice. Travers Smith LLP is a limited liability partnership registered in England and
Wales under number OC 336962 and is authorised and regulated by the Solicitors Regulation Authority. The word "partner" is used to refer to a member of Travers Smith LLP. A list of the members of
Travers Smith LLP is open to inspection at our registered office and principal place of business: 10 Snow Hill London EC1A 2AL. Travers Smith LLP also operates a branch in Paris.
Contractual provision Possible Brexit impacts What can/should you be doing now?
DATA PROTECTION CLAUSES
Compliance with data
protection laws
Duty not to transfer personal
data outside the EEA
The UK may cease to be a member of
the EEA post-Brexit
The EU General Data Protection
Regulation (the "GDPR") will become
law in EU member states in May
2018 but may cease to apply in the
UK post-Brexit.
That said, UK-based data controllers
and processors offering goods and
services to EU data subjects will still
be required to comply.
Data protection clauses will need to be
kept under review and amended in the
light of the UK's approach to the GDPR
Change control provisions (as above) are
likely to be important in dealing with
changes in data protection law
GOVERNING LAW AND DISPUTE
RESOLUTION
Contract governed by English
law
Dispute resolution
mechanisms
English law will remain attractive to
govern international commercial
transactions
English courts will remain an
attractive forum for resolving
international disputes. English court
judgments may become less readily
enforceable in EU member states
than is currently the case (although
this will depend on the precise terms
of any Brexit deal)
It may become more difficult to serve
English legal proceedings on EU
counterparties
If the risk of English court judgments
becoming less readily enforceable in EU
member states is a material concern,
consider the viability of options such as
given non-exclusive jurisdiction to the
English courts or using arbitration
Include agent for service provisions in
transactions with EU counterparties
"...this consistent, high-
calibre firm commands a
loyal following due to its
winning combination of in-
depth specialist skills and
overarching understanding
of the marketplace."
Chambers UK
"Legal advice is always
commercial, relevant and
timely. The team understands
not only the legal risks but
have a strong understanding of
the credit risks and business
model. This sets them apart
from many other firms."
IFLR, 2015
FOR FURTHER INFORMATION, PLEASE CONTACT
10 Snow Hill
London EC1A 2AL
T: +44 (0)20 7295 3000
F: +44 (0)20 7295 3500
www.traverssmith.com
Ben Chivers
Partner
E: ben.chivers@traverssmith.com
T: +44 (0)20 7295 3370
Jonathan Rush
Professional Support Lawyer
E: jonathan.rush@traverssmith.com
T: +44 (0)20 7295 3471