In the week that prime minister Theresa May formally set in motion the process of leaving the EU, the sheer scale of issues that Brexit will pose for in-house counsel was made plain.
Legal professional privilege, data protection, commercial contracts, finance documents, intellectual property, public procurement, employment and immigration were among the key issues flagged up by speakers at a Law Society In-House Division seminar on the implications of Brexit.
Kelly Stricklin-Coutinho, a barrister at London’s 39 Essex Chambers, highlighted five areas of concern, including anti-suit injunctions, which are court orders directing a party not to initiate or pursue legal action in a different jurisdiction, and are currently prohibited by EU law.
Stricklin-Coutinho acknowledged that, as a result of Brexit, anti-suit injunctions could be used by the UK to gain an advantage in litigation. However, ‘if we’re a third country, anti-suit injunctions could become possible against English parties where they could not previously’, she added.
Litigation could also become difficult should the EU regulation on service of judicial and extrajudicial documents in civil or commercial matters no longer apply.
Stricklin-Coutinho said: ‘What the service regulation does is provide a number of methods of service which are quick and easy, and agreed within the EU. What happens if we don’t have it? We might default to the Hague Convention [which is] not useful if we want to litigate quickly.’
Not all EU member states are members of the Hague Convention, she added.
Termination clauses and pricing are among the areas of concern for commercial contracts, Irwin Mitchell partner Stuart Padgham told the seminar. Finance documents should be affected to a lesser extent, as they contain minimal references to EU-derived legislation, his colleague Dan Webster added.
However, although financial documents between an English lender and borrower should be unaffected, the possible loss of passporting or territorial agreements will have a ‘substantial impact’ on cross-border lending, Webster warned.
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