Brexit and mixity – the implications for a UK free trade agreement with the EU

Aidan Robertson QC

In a blog in July, I referred to the question whether the EU is likely to have exclusive competence to conclude a free trade agreement with the UK or whether a free trade agreement will be a ‘mixed’ agreement requiring ratification by individual EU Member States so far as it would cover areas not falling within the EU’s exclusive competence.

The issue of the extent of the EU’s exclusive competence is under consideration by the Court of Justice of the European Union in relation to the EU’s free trade agreement with Singapore.

Advocate General Sharpston handed down her Opinion in this case on 21st December 2016. In her view, the Singapore agreement is infected with some degree of mixity because the EU does not have exclusive competence over particular areas. These include provisions on trade in air transport services, maritime transport services, types of investment other than foreign direct investment; -government procurement in so far as they apply to transport services; non-commercial aspects of intellectual property rights; provisions laying down fundamental labour and environmental standards and falling within the scope of either social policy or environmental policy. Thus any free trade agreement with the UK involving those limited areas would require national ratification. However, the areas falling within EU exclusive competence, which would form the bulk of any agreement with the UK, could have provisional application without national ratification.

In other words, the outcome so far before the Court of Justice is as predicted by Professor Derrick Wyatt QC in July this year (see my previous blog): not much of a free trade agreement would fall within shared competence.

The Court will hand down its judgment in the new year.

The Court’s press release is here.

Advocate General Sharpston’s Opinion is here.

The return of the anti-suit injunction post-Brexit?

Oliver Jones

The decision of the united Kingdom to leave the European Union has given rise, in the context of the rules regulating civil jurisdiction and enforcement in the EU, to questions as to how this may impact on the availability of the anti-suit injunction, an injunction issued by the courts of this jurisdiction to prevent a person from bringing proceedings in any other jurisdiction.

For many of us the anti-suit injunction featured heavily in our legal education as a prime example of the remedial power and flexibility of English law. However they have been a somewhat rare occurrence in recent legal practice because of the regime now embodied in the recast Brussels Regulation (Regulation (EU) No. 1215/2012), and its predecessor, the Brussels Regulation No. 44/2001.

Brexit is likely to lead to the UK’s departure – in some form – from that regime. As a consequence, this has at least given rise in some quarters to the perception that the anti-suit injunction may be in line for a return to prominence. Continue reading

New Irish Brexit case

Maya Lester QC

The UK Supreme Court case challenging the Government’s use of the royal prerogative to trigger Article 50 has been widely reported on this blog and elsewhere.  Another set of proceedings is now to be lodged in the High Court in the Republic of Ireland.  The purpose of the Irish proceedings is said to be: (a) to ascertain whether Article 50 has already been triggered; (b) to persuade the Irish High Court to refer a question to the European Court of Justice in Luxembourg on the revocability of Article 50; and (c) to clarify whether leaving the European Union means automatically leaving the European Economic Area.  The likely claimants are members of the European Parliament, and defendants are the Government of Ireland and the European Commission and Council of Ministers.

Brexit: Security, surveillance and home affairs

David Heaton

On Tuesday 6 December 2016, Brick Court hosted a Brexit panel discussion on “Security, Surveillance and Home Affairs”.  Gordon Corera, the BBC’s Security Correspondent, moderated the event.  He opened it by remarking that the subject presented many unanswered questions. Continue reading

ICEL – Law Society of NI Brexit Conference

Tuesday December 13th 14:00 – 17:00

Law Society House, 100 Victoria Street, Belfast

3 CPD Points

Chair – TBC

Much about Brexit is still unknown, but it will certainly be one of the most significant changes to the UK and Irish legal landscape since Ireland and the UK joined the EU in 1973. This afternoon conference brings together leading legal speakers from Northern Ireland, London and Dublin to examine a series of constitutional and economic issues.

Confirmed speakers and topics

  • Professor Derrick Wyatt QC, Brick Court Chambers, London – Brexit and Article 50 – glass half full, or glass half empty
  • David Anderson QC, Brick Court Chambers, London – Brexit and the Border
  • Margaret Gray BL, practising in Belfast, Dublin and from Brick Court Chambers, London – Some implications for private and public law litigation
  • Professor Christopher McCrudden, Queens University Belfast and Blackstone Chambers London – The devolved setting and fundamental rights
  • Dorit McCann, Carson McDowell Solicitors Belfast – Competition and state aid post Brexit
  • Clare Archbold, Legal Advisor to the Department of Justice for Northern Ireland – Northern Ireland Executive: mechanisms to respond to the prospect of Brexit

Please click here for the Irish Centre for European Law online registration page. The cost is £100 for non-members, £50 for members and £25 for associate members. It is also possible to pay in euros.

Please note that this event is being organised by ICEL. If you prefer to register using more traditional means, or have any other queries, please feel free to contact the Centre directly via email or by phone: + 353 1 896 1845, by fax: + 353 1 896 4455. The Centre’s Office Hours are between 10am to 2pm Monday to Friday.

Article 50 ‘Brexit’ appeal

The Supreme Court has uploaded the written arguments of the parties and interveners, which are available on its website here. The hearing is due to commence at 11am on Monday 5th December.

Eight members of Brick Court Chambers are instructed for various parties and interveners:

  • Martin Chamberlain QC and Emily MacKenzie are instructed by Baker & McKenzie on behalf of the Scottish government.
  • Richard Gordon QC and Tom Pascoe are instructed by the Welsh government.
  • Tim Johnston and Professor Robert McCorquodale are instructed by Bindmans LLP on behalf of ‘The People’s Challenge’ (Graham Pigney and others), Interested Parties.
  • Simon Salzedo QC and Andrew Henshaw QC are instructed by Wedlake Bell on behalf of Lawyers for Britain, who have filed written submissions as intervener.