Read Monday's issue of E15 weekly: The Brexit juridical challenge
Under the Article 50 process, Brexit is likely to have two distinct parts to it. The first part is the process of extricating the UK from its status as a member state of the EU, which also has potentially significant implications for the remaining 27 member states as well as the EU institutions. The second part is how those exit discussions “take account of” the framework for the UK’s future relationship with the EU. It is that secondary part of the Brexit process that presents the main challenges for UK lawyers and their clients.
The main challenge is that a large body of EU law will – post-Brexit – no longer apply in the three legal jurisdictions of the UK (England & Wales, Scotland and Northern Ireland). The process we are likely to see in addressing this challenge can perhaps best be viewed as equivalent to the process for the accession of new EU member states, which a number of CEE countries have relatively recent experience with. The UK must decide what new national laws and new international agreements will be needed to fill the created legal vacuum. A key issue here will be how big that vacuum is and what alternative laws are best suited to fill it.
If the UK wishes to maintain full access to the EU single market, it will need to accept that it cannot modify certain national laws, at least not in substantive terms. The closest analogies are to the bilateral (e.g. Swiss) or multilateral (e.g. European Economic Area – EEA) arrangements. The UK will also have to separately negotiate new trading deals with the 53 markets with which the EU has standing Free Trade Agreements. With a strong presence across the EU and globally, CMS is very well placed to help clients navigate their way through these challenging times. We have already seen a range of new work arising from Brexit – from companies seeking advice on long-term contracts, the terms of which may straddle Brexit, to companies looking to relocate from the UK to elsewhere in Europe.
In any case, we would not expect to see a change from the use of English law as a governing law for cross-border international contracts – it was used as a basis for international contracting well before the EU came into being and there is continued use of it internationally well beyond the scope of the EU. Our expectation is that any new UK trading relationship with the EU is likely to take significantly more than two years to arrange and complete.
The Author is Managing Partner of the Prague office of global law firm CMS Cameron McKenna